Allow Cookies!
By using our website, you agree to the use of cookies
Case number: W.A. 04/2014
Date of judgment: January 9, 2015
Court: High Court of Tripura at Agartala
Background:
On the 4th of July, 2013, the State Government of Tripura published a notification banning the manufacturing, importing, sale, and use of plastic carry bags throughout the state. The same was issued under Section 5 of the Environment Protection Act, 1986 (hereinafter referred to as EPA or the Act). Aggrieved by the notification, the petitioners, All India Plastic Industries Association made a reference before the High Court of Tripura. However, the single judge bench dismissed the petition citing lack of jurisdiction and held that the appropriate authority would be the National Green Tribunal (NGT). Through this Appeal before the Division Bench of the High Court, the following issues were raised.
Issues:
The Environment Protection Act, 1986:
The Act was enacted as a result of India’s commitment to the Stockholm Conference, 1972, with the aim of safeguarding and improving the environment. Section 3 vests wide powers with the Centre by conferring them the power to take all steps and measures necessary for safeguarding the environment. Section 3(2) lists down a broad range of matters in an inclusive yet non-exhaustive manner. One such power is that of coordinating with the State Government, its officers, and authorities.
The Central Government has the competency to issue directions under Section 5 of the Act. Section 5 is a non-obstante clause that implies that a direction may override the provisions of other legislations except for the EPA. Explanation (a) under section 5 clarifies that the power under the section includes the power of closure, prohibition, or regulation of any industry, operation, or process.
The power to make Rules for matters under Section 3 rests with the Central Government according to Section 6. The Environment (Protection) Rules, 1986 came into being as a result of Section 6.
The relevant rule for consideration in this matter was Rule 4 that pertained to the manner for issuing directions under Section 5. Rule 4(3)(a) mandates that a notice has to be issued to the concerned person, authority, or officer. The concerned person shall then have the opportunity to raise his objections against the same before a designated officer with not less than 15 days to do the same. This right of notice exhausts upon being heard by the concerned authority.
Judgment:
The Division bench of the High Court commenced by stating that they did not agree to the learned single judge bench’s view on the entirety. The moot point being, whether High courts could have the power to adjudicate over a matter when a special forum or Tribunal concerned with that matter was in existence.
They referred to a persuasive precedent set out in Goodwill Plastic Industries & Anr. Vs. Union Territory of Chandigarh & Ors., whereby writ jurisdiction was said to have paved the way for the NGT for such a matter. Nonetheless, the learned judges expressed that the restriction on the jurisdiction in such instances would vary on a factual basis. If an application challenged solely on legal grounds and not on the merits, the same could be taken up by a court of writ jurisdiction. Through this exercise, the Court would be testing the legality of a State’s action. The issue of jurisdiction was subsequently set aside as regardless of NGT’s jurisdiction, the High Court’s power could not be stripped away, being one of writ jurisdiction.
The issues were thus adjudicated on the matter of jurisdiction and not on merit. Sections 3,5 & 6 of the EPA under consideration were read in-depth in order to ascertain the validity of the state’s power. The powers under Section 3 were viewed to be generic in nature and Section 6 aided in the execution of those powers. However, Section 5 (power to issue directions) was a distinct section on its own that was in addition to the powers under Section 3. It was established that when there were two distinct separations entered by the legislation, each section would confer a distinct power under it.
Principles of interpretation were inducted to sift through the provisions of the EPA and clarify the implications and related procedures applicable to each section. Section 5 was held to have started with a non-obstante clause which provided that the Centre’s directions could override all other legislations except for the EPA. The power under Section 5 had been delegated by the Centre to the State of Tripura on 25/07/1991.
The subject of plastic bags was held to have been a matter that would fall under Section 5 of the Act which the State was entitled to decide over. Thus, there was no question as to the State’s competency to issue the impugned notification.
Article 304 dealt with restrictions on inter-state trade and commerce. The Article permits the application of a uniform restriction whereby internal as well as external trade on an article. Herein, the state had banned plastic within the state as well as its entry from outside. There was no issue of the restriction being biased against manufacturers or transporters beyond the state as it applied equally to all. Article 304 would warrant Presidential assent only when a distinction was made between a local and external industry.
By issuing the notification under Section 5 of the EPA, they had already received presidential assent as EPA and its Rules were central enactments. The Court reaffirmed its view on the merits of the petition as the injurious nature of plastic was held to be something to be disputed under the ambit of the NGT.
The petitioners then alleged non-compliance with Rule 4(3)(a) of the EPA (mentioned above) as no notice had been issued to them. The respondents contended that the petitioners had raised their objections upon reading the notification and that its enforcement had been delayed by 5 months upon their request.
This issue was analyzed on precedents on the manner for performance when the procedure had been established. The legal principle being, when a power prescribes something to be done in a specific way, it has to be done in that way alone or not be done at all. [1] Non-compliance with the established procedure would destroy the very object of the legislature while formulating that procedure. It was found that the State had flouted the sub-rule of issuing notice under Rule 4 as they had merely facilitated post-decisional hearing.
Enforcement of a decision under Section 5 of the EPA mandated strict compliance with Rule 4 of the EPA Rules of 1986 and could not be forsaken or neglected. By failing to comply with Rule 4(3)(a), the delegatee (state) was violating the rule framed by the delegator (center).
The Hon’ble High Court thus enunciated that the respondent’s power to issue the notification was undisputed but there was a violation of procedure which. The verdict was indubitable the most perplexing part of this appeal as the violation has to be remedied and the Court had to award a remedy that would not damage the anti-plastic move in the public interest. Nevertheless, the learned judges arrived at an efficient verdict by holding that plastic entry into Tripura would continue to remain banned but with certain preconditions.
Violation of Rule 4 was remedied by viewing the impugned notification to be a draft notice issued under Rule 4 against which the petitioners could raise objections before the appropriate authority. The State Government was ordered to publish the notification in 2 newspapers having wide circulation in the State and 2 other publications in national newspapers. This would entitle individuals to raise objections against the draft. However, the draft notification would not lose its effectiveness in the larger public interest until a decision was reached by the State. The state was also directed to decide on the validity of the notification by the 15th of March, 2015 and if no decision was arrived by then, the notification would cease to be in force from the next day. Moreover, if the State’s decision aggrieved the petitioner, they could contest the same purely on facts before the NGT.
[1] Ramchandra Keshav Adke & Ors. V. Govind Joti Chavare and Ors., (1975) 1 SCC 559
86540
103860
630
114
59824