Disposed

S.J.Jayaram v. Corporation of Thiruvananthapuram

Kerala HC14 Sept 2020WP(C)/545/2012

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of a PIL filed by a lawyer alleging illegal dumping and burning of plastic waste by the Thiruvananthapuram Corporation. Ruling on the corporation's failure to act, the Court directed the 1st respondent to collect and manage plastic waste strictly in accordance with the Plastic Waste Management Rules, 2016 and the Kerala Municipality Act, 1994, with a warning of st

What did the court decide?

Directed 1st Respondent to collect and manage plastic waste in accordance with Plastic Waste Management Rules, 2016 and Kerala Municipality Act, 1994; threatened ruthless action against authorities fo

S.J.Jayaram Vs Corporation of Thiruvananthapuram — Environment and Pollution | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 14TH DAY OF SEPTEMBER 2020 / 23RD BHADRA, 1942

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WP(C).No.545 OF 2012(S)

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PETITIONER:

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S.J.JAYARAM

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ADVOCATE, T.C.27/1034(16), NAVASAKTHI BUILDING, OPP:VANCHIYOOR POLICE STATION, THIRUVANANTHAPURAM.

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BY ADV. SRI.T.K.ANANDA KRISHNAN

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RESPONDENTS:

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1 CORPORATION OF THIRUVANANTHAPURAM THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY.695014.

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2 THE SECRETARY HEALTH DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.695 001.

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3 THE LOCAL SELF GOVERNMENT INSTITUTIONS REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM.695001.

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R1 BY ADVS. SRI.P.K.MANOJKUMAR SRI.N.NANDAKUMARA MENON SR. R2-R3 BY SRI.TEK CHAND SENIOR GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.545 OF 2012(S)

JUDGMENT

SHAJI P.CHALY,J

This Public Interest writ petition is filed by a practicing lawyer residing within the territorial limits of the Thiruvananthapuram Corporation, 1^st respondent herein. According to the petitioner, the 1^st respondent, has failed in its statutory duty of removing waste from the residential premises and public places and disposing it in a scientific manner. It is further contended that the degradable wastes are now dumped in pits, and the non-degradable plastic wastes etc. are burned in public places causing severe health hazards to the public at large. It is thus challenging the alleged illegal actions of the 1^st respondent Corporation, the writ petition is filed.

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The case projected by the writ petitioner is that, most dangerous emissions can occur by burning plastic, which contains organochlor based substances like PVC. It is also pointed out that when such plastic is burned, harmful quantities of dioxins, a group of highly toxic chemicals are emitted, which are most dangerous to

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human organisms and they are carcinogenic and a hormone disruptor. Even though the petitioner has submitted

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representations, no action was initiated by the 1^st respondent Corporation, which compelled the petitioner to approach this Court.

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A statement is filed by the 1^st respondent on 14.9.2020, wherein it is stated that, the Corporation has taken effective steps for the treatment of plastic waste strictly in accordance with the provisions of Plastic Waste Management Rules, 2016 (hereinafter called, 'Rules, 2016'). It is also pointed out that the plastic waste collected from various parts of the city are recycled into new products and the plastic waste is treated in the treatment plant set up at Muttathara and Manacaud, within the limits of the Corporation. That apart it is stated that the uncleaned plastics are treated by different processes in the plant set up by a private Contractor and the resultant cleaned plastic is sent for recycling process to the plants referred to above.

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Other statements are made to the effect that various centers are established by the Corporation in accordance with the provisions of Rules, 2016 and collecting plastic waste, and other wastes also, so as to keep the city clean, and as of now the grievances highlighted in the writ petition are not available for

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consideration and adjudication since already steps are taken and the grievances of the petitioner are redressed.

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Heard learned Standing Counsel for the respondent Corporation, learned Government Pleader, and perused the pleadings and documents on record.

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Considering the relevance and importance of the seminal issues raised in the writ petition, we are of the view that the writ petition is to be disposed of taking into account the mandatory requirements of Rule, 2016 and the provisions of The Kerala Municipality Act, 1994 (hereinafter called, 'Act, 1994'). The Plastic Waste Management Rules, 2016 was constituted by the Central Government in exercise of the powers conferred by sections 3, 6 and 25 of the Environment (Protection) Act, 1986 and in supersession of the Plastic Waste (Management and Handling) Rules, 2011. Plastic is defined to mean “material which contains as an essential ingredient a high polymer such as polyethylene terephthalate, high density polyethylene, Vinyl, low density polyethylene, polypropylene, polystyrene resins, multi materials like acrylonitrile butadiene styrene, polyphenylene oxide, polycarbonate, Polybutylene terephthalate”; plastic waste is defined to mean, “any plastic discarded after use or after their intended use

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is over”; local body is defined to mean, “urban local body with different nomenclature such an municipal corporation, municipality, nagarpalika, nagarnigam, nagarpanchayat, municipal council including notified area committee (NAC) and not limited to or any other local body constituted under the relevant statutes such as grama panchayat, where the management of plastic waste is entrusted to such agency.”

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Rule 4 (1)(b) of Rules, 2016 specifies that carry bags made of recycled plastic or produce made of recycled plastic shall not be used for storing, carrying, dispensing or packaging ready to eat or drink food stuffs; rule 4(1)(c) states that carry bag made of virgin or recycled plastic, shall not be less than fifty micron in thickness. Other restrictions with respect to the use of plastic are mentioned under rule 4. Rule 6 defines responsibility of the local body which stipulates that every local body shall be responsible for development and setting up of infrastructure for segregation, collection, storage, transportation, processing and disposal of the plastic waste either on its own or by engaging agencies or producers. Sub-section (2) thereto states that the local body shall be responsible for setting up, operationalisation and co-ordination of the waste management system and for performing the associated functions, namely:

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(a) Ensuring segregation, collection, storage, transportation, processing and disposal of plastic waste

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(b)ensuring that no damage is caused to the environment during this process.

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(d)ensuring processing and disposal on non-recyclable fraction of plastic waste in accordance with the guidelines issued by the Central Pollution Control Board;

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(e) Creating awareness among all stakeholders about their responsibilities;

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(f) engaging civil societies or groups working with waste pickers; and

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(g) ensuring that open burning of plastic waste does not take place.

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Likewise as per rule 7 of Rules, 2016, responsibility is imposed upon the Grama Panchayat to co-ordinate the management of plastic waste, and as per rule 8, responsibility is imposed upon a waste generator, who is defined to mean under rule 3(y) to include every person or group of persons or institution, residential and commercial establishments including Indian Railways, Airport, Port and Harbour and Defence Establishment that generate plastic waste. Rule 9 of rules 2016 deals with responsibility of producers, importers and brand owners, and the

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provisions are extracted for immediate reference since they are very relevant to the context:

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9. Responsibility of producers, importers and brand

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owners:- (1) the producers within a period of six months from the date of publication of these rules, shall work out modalities for waste collection system based on Extended Producers Responsibility and involving State Urban Development Departments, either individually or collectively, through their own distribution channel or through the local body concerned.

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(2) Primary responsibility for collection of used multi-layered plastic sachet or pouches or packaging is of producers, importers and brand owners who introduce the products in the market. They need to establish a system for collecting back the plastic waste generated due to their products. This plan of collection to be submitted to the State Pollution Control Boards while applying for consent to establish or operate or renewal. The brand owners whose consent has been renewed before the notification of these rules shall submit such plan within one year date of notification of these rules and implement with two years thereafter.

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(3) Manufacture and use of non-recyclable multilayered plastic if any should be phased years time.

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(4) The producer, within a period of three months from the date of final publication of these rules in the Official Gazette shall apply to the Pollution Control Board or the Pollution Control Committee, as the case may be, of the States or the Union Territories administration concerned, for grant of registration.

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(5) No producer, within a period of three months from the

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date of final publication of these rules in the Official Gazette manufacture or use any plastic or multilayered packaging for packaging of commodities without registration from the concerned State Pollution Control Board or the Pollution Control Committees.

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(6) Every producer shall maintain a record of details of the person engaged in supply of plastic used as raw material to manufacture carry bags or plastic sheet or like or cover made of plastic sheet or multilayered packaging.”

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So also Section 334B of the Kerala Municipality Act deals with the restriction on plastic carry bags and covers and management of plastic wastes. The provisions thereto are relevant, and they read thus:

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334B. Restriction on plastic carry bags and covers and management of plastic wastes :- (1) Subject to the provisions of the Environment (Protection) Act, 1986 (Central Act 29 of 1986) and the Rules made thereunder,--

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(a) the Municipality shall, by notification, fix the minimum price of various kinds of plastic carry bags and covers and no institution or person shall sell such bags or covers at a price lower than the price so fixed or give them free of cost and the Municipality shall take steps to ensure that no institution or person does so;

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(b) where an applicant who applies for license under Section 447 intends to sell plastic bags or plastic covers through his establishment, such information shall be recorded in the application and the Municipality may, in addition to the usual license fee, realise a fixed amount as additional fee in this behalf for the period as may be prescribed, in accordance with the approximate number or quantity of plastic bags and plastic covers

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intended to be sold;

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(c) every consumer shall keep the waste plastic bags and plastic covers segregated from other wastes and shall be managed as provided for in the bye-laws that may be made by the Council.

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(2) The Secretary shall lodge complaint any person who violates the provisions of clause (a) of sub-section (1), in accordance with the provisions of the said Central Act and the Rules made thereunder.”

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Likewise section 334C of Act, 1994 dealing with the situation of waste disposal enumerates that the Municipality shall constitute a special fund, by name 'The Waste Disposal Fund' for the purpose of disposal of waste, especially for the disposal of plastic waste, originated within the Municipal area, and,

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(a) the additional fee realised as per clause (b) of sub-section (1) of Section 334B.

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(b) the fine amount recovered in the cases relating to waste disposal; and

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shall be credited to the Fund and the same shall be managed in the manner as may be prescribed.

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It is relevant and significant to note that as per Schedule IV of Act, 1994, the Municipality is vested with powers to impose penalties prescribed therein in contemplation of section 275(2) and section 511of Act, 1994 on contravention of any provisions of the

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act. That said, specifically, in accordance with sections 340 and 341 of Act, 1994, the Municipality is vested with powers for imposing penalty for throwing rubbish or filth or other debris in public places and for committing nuisance in public streets etc. Therefore, the local bodies cannot shirk its responsibility under law to protect the larger interests of the citizens by invoking the powers conferred on it appropriately.

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Schedule I of Act 1994 constituted under section 30 of the Act deals with functions of the Municipality. Part A deals with mandatory functions and Entry 8 thereto makes it clear that the maintenance of environmental hygiene is the mandatory function of the Municipality.

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Therefore, on an analysis of the aforesaid provisions of Rules, 2016 and the Act, 1994, it is unequivocal that 1^st respondent Corporation is duty bound to take appropriate action for the collection, regulation and management of the plastic waste. The menace that is caused due to the generation of plastic waste is inexplicable. Due to the unregulated use of the plastic carry bags, even of prohibited micron, by the general public for anything and everything, and throwing them onto water bodies, drains,empty plots of land and public places has degraded the environment in an

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unprecedented manner and is causing lot of problems to the normal and peaceful life of the citizens, and is a grave danger and threat to the mother earth,agricultural activities, flora and fauna, and even the existence of mankind and the animals. Therefore, unless and until such issues are detected and dealt with and addressed in an appropriate and efficient manner by taking necessary and urgent steps by the authorities constituted under the Rules, 2016 and the Act, 1994, with the cooperation of the public at large, and other stakeholders, the menace will continue, leading to the absolute degradement of the environment as a whole which could cause untold miseries and unimaginable sufferings to all kinds of living species. It is stated by the Municipality in its statement that appropriate steps are taken to manage the plastic waste accumulated in the city in accordance with Rules, 2016.

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So also an obligation is cast upon the State under Article 48A of the Constitution of India to protect and improve the environment and safeguarding of forests and wildlife. We are also conscious of the fundamental duty cast upon every citizen of this country under Article 51A (g) of the constitution of India to protect and improve the natural environment including forests,lakes,rivers and wildlife, and to have compassion for living creatures. That

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apart Schedule XII of Constitution of India constituted as per Article 243W, the Municipalities are duty bound to undertake the mandatory activities in accordance with constitutional mandates.

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Taking into account all these aspects, the writ petition is disposed of directing the 1^st respondent Corporation to ensure that the plastic waste is collected and managed in accordance with the provisions of Rules, 2016 and the Act, 1994, failing which, necessary and adequate steps shall be taken against appropriate authorities, as is provided under Rule 2016 and Act, 1994 ruthlessly.

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Sd/S.MANIKUMAR CHIEF JUSTICE

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Sd/SHAJI P.CHALY JUDGE

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smv

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APPENDIX OF WP(C) 545/2012

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE NEWS ITEMS PUBLISHED IN THE NEWSPAPER. EXHIBIT P1(a) TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P1.

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EXHIBIT P2 TRUE COPY OF THE WEB PAGE APPEARED IN THE INTERNET BY AN N.G.O. BASED AT GERMANY VIZ WOMEN IN EUROPE FOR A COMMON FUTURE. BLUMENSTRASSE 28D-80311 MUNICH, GERMANY.

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EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P4 TRUE COPY OF THE RECEIPT EVIDENCING THE RECEIPT OF EXHIBIT P3.

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WP(C).No.545 OF 2012(S) 14

S.J.Jayaram v. Corporation of Thiruvananthapuram

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S.J.Jayaram v. Corporation of Thiruvananthapuram

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