Point of Law: Inclusion of non-woven bags in list of banned single use plastic items by Government Orders without regard to GSM standards and in violation of provisions of Plastic Waste Management Rules, 2016 is highly illegal and arbitrary.

JUDGMENT :

N. NAGARESH, J.

1. Petitioners in W.P. (C) No. 23089/2022 are members of registered association of the manufacturers of non-woven bags in Kerala. The petitioner in W.P. (C) No. 24165/2022 is a Proprietor engaged in the production of non-woven bags. The petitioners are before this Court aggrieved by GO (MS) dated 17.12.2019 and GO (MS) dated 27.01.2020 whereby the 2nd respondent has included the non-woven bags in the list of prohibited items.

2. According to the petitioners, non-woven bags are manufactured using food grade granules. Non-woven bag is a food grade item approved by many Government agencies and recognised by the Ministry of Textiles. The petitioners are manufacturing non-woven bags out of Polypropylene and Calcium Carbonate. Polypropylene is a food grade granule and Calcium Carbonate is a natural product and 100% biodegradable under natural process.

3. The petitioners state that the Government as per GO dated 12.12.2018 constituted an Expert Committee to study and report on the usage of plastic in Kerala. The Expert Committee reported that plastic litter alone is the pollution problem. The report mentioned the Polypropylene bags as product proposed to be regulated with return deposit refund scheme. The Expert Committee has reported that the non-woven fabric is made from fibre grade textile polymers and propylene and that non-woven fabrics are 100% usable and reusable.

4. The petitioners state that the Government of India, in exercise of its powers under the Environment (Protection) Act, 1986, has formulated the Plastic Waste Management Rules, 2016. The Rules provide that non-woven plastic carry bags shall not be less than 60 gram per square metre (GSM) with effect from 30.09.2021. The notification further directed that the manufacture, import, stocking, distribution, sale and use of single use plastic including polystyrene and expanded polystyrene commodity shall be prohibited with effect from 01.07.2022.

5. The petitioners state that on the basis of the Plastic Waste Management Rules, 2016, many State Pollution Control Boards have prohibited production, stocking, distribution, sale and use of single use plastic items but, permitted manufacturing of carry bags made of virgin or recyclable plastic above 75 micron in thickness. Non-woven carry bags less than 60 GSM alone are prohibited. The State of Kerala, however, issued a letter dated 24.06.2022 banning single use plastic products included in the list of banned single use plastic products. The non-woven bags were included as serial No. 2 in the list. By not making any distinction based on GSM of non-woven bags, the Kerala State has banned all non-woven bags.

6. The petitioners state that the Sub Committee of Single Window Clearance Board held on 05.03.2019 has granted sanction to manufacture of non-woven carry bags to M/s. K.V. Green Bags in Pathanamthitta District. A report of School for Advanced Research in Polymers (SARP), Department of Chemicals and Petrochemicals under the Government of India has given its opinion that Polypropylene fibre of 60 GSM can be used multiple times and are recyclable at the end of their use. Therefore, the complete ban on the manufacture of non-woven bags as per letter dated 24.06.2022 of the Kerala State Pollution Control Board is illegal and unsustainable.

7. The counsel for the petitioners argued that State Rules were already in place when Central Government made the 60 GSM rule. Under Section 23 of the Environment Protection Act, the Central Government can delegate its powers to a limited extent. A combined reading of Sections 5 and 23 of the Act would show that the State Government has only residuary powers. The Act contemplates regulation alone and there cannot be a complete ban.

8. The counsel for the petitioners submitted that the ban should be only on non-biodegradable woven bags. There is inconsistency between the Central Rules and State Regulations. In view of Article 254(1) of the Constitution, the Central Rules shall