Tamil Nadu and Puducherry Paper Cup Manufactures Association v. State of Tamil Nadu & Ors

Supreme Court of India · 2023 INSC 952 · 2023

Coram: S. RAVINDRA BHAT, PAMIDIGHANTAM SRI NARASIMHA

JUDGMENT S. RA VINDRA BHAT, J. 1. These appeals were heard ﬁ nally, with the consent of the parties. The appellants are aggrieved by a common judgment 1 of the Madras High Court, by which their writ petitions challenging a government order 2 banning manufacture, storage, supply, transport, sale, distribution, and use of ‘one time use and throwaway plastics’, was dismissed. The appellants before this 1 Judgment dated 11.07.2019 in WP No. 3984/2019. 2 G.O.Ms No. 84 dated 25.06.2018 w.e.f. 01.01.2019 (hereafter referred to as ‘ Government Order ’). TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES ASSOCIATION v. STATE OF TAMIL NADU court are an association representing manufacturing units involved in the manufacture of ‘reinforced’ paper cups, and a manufacturer of non-woven plastic bags, respectively. Facts 2. The Environment and Forest Department of the Government of Tamil Nadu issued the Government Order in question, in exercis e of its power under Section 5 of the Environment Protection Act, 1986 (‘EPA’) on 25.06.2018 and it was to take eﬀ ect from 01.01.2019. The Government Order included directions, banning manufacture, storage, supply, transport, sale, distribution, or use of “use and throwaway plastics” – whi ch as per Explanation 2, included plastic carry bags, plastic ﬂ ags, plastic sheets used for food wrapping, spreading on dining table, etc. plastic plates, “plastic coated teacups”and plastic tumbler, water pouches and packets, and plastic straws, regardless of thickness. Pertinently, non-wove n bags were not expressly mentioned until a clariﬁ cation dated 08.12.2018 issued by the state government, brought them within the scope of the ban. 3. The directions also contained exemptions for plasti c carry bags produced exclusively for export purposes by an industry in an SEZ or EOU; plastic bags which constitute or form an integra l part of packaging in which goods are sealed prior to use at manufacturing/ processing units; plastic bags and sheets used in forestry and horticulture nurseries against the orders from the government departments; plastic used for packing dairy products, oil, medicine, and medical equipment ; and carry bags made of “compostable plastics” 3 (as per regulations). 4 Pursuant to the Government Order, a Steering Committee headed by the Chief Secretary of the Government of Tamil Nadu, was constituted to monitor and implement the Notiﬁ cation. 3 See Explanation 5 for deﬁ nition. 4 During the pendency of litigation, there have been further ame ndments to the Government Order; by Notiﬁ cation dated 05.06.2020, the State removed the exemption for plastic bags used for packaging goods sealed prior to use at processing units, and added a further direction to the eﬀ ect that alternatives to th e use and throw plastics (other than compostable plastics) shall be examined and tested by the Central Institute of Plastic Engineering and Technology (CIPET) and necessary approval to be obtained from the Tamil Nadu Pollution Control Board (TNPCB). 1137 4. The appellant paper cup association made a represe ntation on 05.09.2018 to the Government to reconsider and exclude them from the ban. Pursuant to this, an Expert Committee was constituted on 25.09.2018 to study and furnish a report on the compostable pr operties of paper cups and compostable plastics. The Expert Committee discussed the properties of LDPE coated paper cups, and alternative biopla stics which were biodegradable. It concluded that the LDPE made such cu ps non- biodegradable, but recyclable. However, due to insu ﬃ cient collection mechanism or failure on the part of extended producer responsibility - they are not being recycled. 5. The petitioner association was also invited for a personal heari ng on 14.11.2018, during which they contended that the use of reinforced papercups had not been banned in other states (such as Maharashtra, Karnataka and Orissa) which had also implemented a ‘plastic b an’. The association’s representation was rejected on 08.12.2018 by the TNPCB on two grounds: ﬁ rstly, that this policy to ban one time use and throwawa y plastics was to safeguard the environment in light of the Plasti c Waste Management Rules, 2016 (hereafter ‘2016 Rules’); and secondly, that the Expert Committee had concluded that the composition of the product, madee it diﬃ cult to degrade under natural environmental conditions. 6. Similarly, the non-woven bag association also made representations on 23.08.2018 and 19.09.2018 to the TNPCB, which were r ejected on similar grounds on 08.12.2018 5 through a clariﬁ cation issued by TNPCB and a further detailed clariﬁ cation issued by the Sta te Government, that such non-woven bags were also banned. The reasoning given was that such bags are made of polypropylene, and do not degrade easily in natural environment. 7. Aggrieved by the ban, the paper cup association challenged the Notiﬁ cation before the NGT which was dismissed 6 on the ground that the challenge was not maintainable before the NGT. 5 The CIPET report concluded that “ polypropylene is a synthetic plastic which is spun into ﬁ bres and bonded together by chemical or solvent treatment as non-woven fabric”. 6 Order dated 28.01.2019 in Appeal Diary No. 05/2018 before the NGT, Principal Bench, New Delhi. TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES ASSOCIATION v. STATE OF TAMIL NADU [S. RA VINDRA BHAT, J.] 8. Approaching the High Court in its writ jurisdiction, the appellants cited their rights under Article 14, and Article 19(1)(g) of the Constitution of India. Their principal grounds were: ﬁ rstly , that the reports relied upon by the State recognised that the paper cups were recyclable provided the paper and LDPE plastic layer were separated (which the a ssociation was willing to assist/support), and this product was not on the same footing as other plastic products banned. It was also emphasised that this action was taken without application of mind and would have a vast economic impact on the livelihood of 5-6 lakhs of employees. Secondly, that the mandatory consultative mechanism captured in Rule 4 of the Environment (Protection) Rules, 1986 (hereafter ‘1986 Rules’) – of publishing a draft notiﬁ cation, inviting objections and passing a ﬁ nal notiﬁ cation after considering these – was not followed. 9. Arguments on behalf of the non-woven bag industry were that these bags were water and air permeable, and hence did not choke drai ns. They were eco-friendly alternatives that could be used more than 10 times and were recyclable; they had not been banned anywhere else in the world and had wide usage and application. 10. The High Court heard the writs along with various petitions ﬁ led by other aggrieved manufacturers from the plastic industries, and dismissed them by common judgment, upholding the ban. 7 It agreed with other courts (namely, the Delhi High Court, Madhya Pradesh Court 8 , NGT 9 ) as having rightly upheld the State’s competence to pass such gov ernment orders under Section 5 of the EPA, in furtherance of its policy decision; judicial review of which, was limited. 10 On the question of non-woven bags, the 7 The High Court noted that various other writ petitions (WP No. 3 4065/2018 dd. 27.12.2018, WP No. 24623/2018 dd. 19.12.2018, WP (MD) No. 10131/2018 dd. 03.12.2018) either challenging the validity of impugned government order, or seeking its implementation, were dismissed by coordinate benches of the court. 8 Popular Plastic and Ors. v. State of Madhya Pradesh , WP No. 8182/2017 dd. 06.09.2018 9 KK Plastic Waste Management Pvt. Ltd. & Ors. v. State of Karnataka & Ors., Appeal No. 117/2016. 10 The court followed Andhra Pradesh Pollution Control Board v. M.V . Nayudu [(2001) 2 SCC 62]and Bajaj Hindustan Ltd. v. Sir Shadi Lal Enterprises Ltd. [(2011) 1 SCC 640]the latter having held that judicial review was limited in matters of policy. 1139 court held that since they were non-biodegradable, their reusability carried the risk of pathogenic transmission, and the bags have tendency to caus e reduction in rainfall inﬁ ltration and ground water discharge, there was no basis to conclude they were eco-friendly carry bag alternatives; t he State had pursuant to a CIPET study, banned them. Given that the court is not scientiﬁ c experts to determine the rival contentions of the parties, deference had to be paid to the decision of experts more familiar with the material 11 and this could not be gone into in the writ petitions ﬁ led under Articl e 226 of the Constitution. With regards to cups, it was noted that they a re indiscriminately used and thrown after single use, accumulating in huge quantities, and causing an eye sore; since they squarely fall wit hin ‘one time use and throw’ plastics, the ban was justiﬁ ed. 11. The appellants seek this court’s intervention on the ground that the common judgment was passed without considering the speciﬁ c contentions made by them, and the product(s) in question. Appellants’ contentions 12. Counsel appearing for the appellant-association urged that reinforced paper cups (referred to as “plastic coated teacups” in the impugned notiﬁ cation) were an eco-friendly alternative to plastic cups owing to their composition of 94% food grade paper and only 6% coating of LDPE which is necessary to reinforce the cup and make it water resistant. Once the paper and plastic are separated, the paper is both recyclable and biodegradable while the LDPE is recyclable and reusable for diﬀ erent purposes. It was pointed out that the manufacturers in the MSME sector purchase the paper with the LDPE coating from paper mills like TNPL, ITC, etc. and use them to make the cups. 13. The appellant’s submissions were primarily on two planks – ﬁ rstly that there was no scientiﬁ c basis for the ban, which create d an arbitrary classiﬁ cation; and secondly, that there was non-compliance with the 1986 Rules, which mandate publishing of draft rules and inviting objections, before passing an order such as the impugned notiﬁ cation. Counsel contended that 11 Court relied on Secretary and Curator, Victoria Memorial Hall v. Howra Ganatantrik Nagrik Samity and others , (2010) 3 SCC 732; Basavaiah (Dr) v. Dr. H.L. Ramesh and Ors., (2010) 8 SCC 372. TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES ASSOCIATION v. STATE OF TAMIL NADU [S. RA VINDRA BHAT, J.] the classiﬁ cation – of including paper cups with LDPE coating with other products that are largely composed of plastic – was arbitrary, and unjust. It was further highlighted that the products exempted under the notiﬁ cation are in fact, far more harmful to the environment which the High Court too, took note of. 14. Addressing the three reports relied on by the State – counsel appearing for the appellant pointed out that none of these three reports, recommended a ban on reinforced paper cups. In fact the IIT Report recommended the use of paper cups as an alternative to plast ic cups; the Expert Committee Report speciﬁ cally noted that the LDPE coating on the paper cups can be separated in the pulping and screening process in paper mills, which it was urged is a common practice leading to both resultant paper and LDPE that is recyclable and reusable for diﬀ erent purposes; and that while the CIPET report elaborates on the physical charact eristics of paper cups, there is no ﬁ nding that it ‘poses a threat to the environment’ as concluded by the High Court erroneously. 15. Counsel laboured on the failure of conducting prior consultation before issuing delegated legislation. Emphasis was placed on Rule 4 of the Environment Protection Rules, 1986, as being a mandatory requirement, rather than directory in nature. Therefore, the state had to have issued a draft or proposed notiﬁ cation, with a period of at least 15 days to make a reply to the same, followed by the issuance of a written order deali ng with the objections raised. Reliance was placed on this Court’s judgment in Cellular Operators Association of India & Ors., v. TRAI 12 . 16. Counsel submitted that the High Court had proce eded on a misconceived notion on the ‘degradability’ of the cups. The question, however, is of ‘recyclability’ instead. That paper and LDPE coating can be separated in paper mills, is not in contention; the absence of a collection mechanism was the problem for which a total ban was a disproportionate solution. Citing Rule 6 of the Plastic Waste (Management & Handl ing) Rules 2016, the responsibility of creating and putting in place a collection mechanism was placed on the municipal corporations. The failure t o do so, cannot impede the appellants’ right to carry out its busines s. Without 12 (2016) 7 SCC 703 [para 74]. 1141 conceding their case, counsel expressed the appellan ts’ willingness to cooperate with the authorities to improve the collection mechanism including through a buyback scheme of used cups. 17. Lastly, counsel submitted that there is a large-scale reliance on and usage of disposable cups by the State of Tamil Nadu and its residents, and due to the ban on local production, they are being brought in from manufacturers in other states in which there is no ban of this kind. This large-scale usage was exponentially magniﬁ ed during and after the COVID-19 pandemic. Counsel reiterated that reinforced cups, are the only eco-friendly alternative to plastic cups, and banning manufacture of them adversely aﬀ ects only small shopkeepers, and the MSME enterprises that are especially promoted and supported by the government through loans and other schemes. In light of these facts, it was urged that the test of the reasonable person should be applied to balance development and environment and allow manufacture, albeit with stringent safeguards. Reliance was placed on this court’s decision in M.C. Mehta v. Union of India 13 . 18. Counsel on behalf of the manufacturer of non-woven carry bags, contended that such bags are made out of poly-propylene granules by spun-bonding ﬁ bres similar to polyester ﬁ laments used for manufacturing of sarees, shirts etc.; and non-woven fabrics have wi de usage 14 . They have weak chemical structure and are made of a mono-polymer, making it easy to segregate and recycle. Non-woven polypropylene car ry bags are reusable alternatives to plastic bags. They have a fabric like structure with air and water permeability. Therefore, even if the non-woven c arry bags are discarded, there is no possibility for clogging or choking of water channel, drains, sewer lines etc., and aﬀ ecting soil fertility. These fabrics are chemically inert and non-toxic and therefore, even burning these materials will not produce any poisonous gases or pollutants. The non-woven bags disintegrate on exposure to sun light and rainfall and can degrade w ithin even 100 days. Even the test report issued by CIPET, it was argued, has 13 (2004) 12 SCC 118. 14 Non-woven fabrics have numerous applications – medical (surgica l gown, face mask, shoe covers, caps, etc.), ﬁ lters (vacuum bags, hepaﬁ lteration), agriculture (shade nets, crop covers, soil liners, tea bags, etc), and packaging (where porosity is needed, bags of all types namely WCUT, DCUT, handle loop bags used in malls, textile, retail, etc.) TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES ASSOCIATION v. STATE OF TAMIL NADU [S. RA VINDRA BHAT, J.] proved that non-woven carry bags are 100% eco-friendly. The life Cycle Assessment study done by the Central Pollution Control Board, Ministry of Forest, and Climate Change, reveals that non-woven carry bags are the real substitute and alternate for plastics, as they are porous in nature and air and water can pass through freely, and there is a real global warming impact in recycling paper and plastic. 19. Counsel pointed out that non-woven carry bag fabric is classiﬁ ed as Technical Textile by, and promoted by, the Ministry of Textile, Government of India (GOI). Further, the non-woven polypropylene carry bags can be manufactured as per the requirement of customer and there is no ﬁ xed percentage of polypropylene i.e., all non-woven carry bags do not contain 98.2% polypropylene. It was argued that the non-woven carry bags contain less percentage of poly propylene, which varies from 57% to 70% while an average carry bag can be produced with 30% to 90% of polypropylene; and that the appellants are ready to manufacture the non-woven carry bags with any ﬁ xed percentage as may be ﬁ xed by this Court or any other authority. In this way, the state can regulate the ratio of poly propylene in non-woven carry bags by ﬁ xing the percentage of GSM. But the total ban or prohibition by branding it as ‘one time use and throw’ was unwarranted and disproportionate. 20. Such a ban, it was argued, caused massive unemployment and rendered the machineries purchased useless as they could be used only to manufacture non-woven carry bags and not for any other purp oses. Therefore, it is contended by the learned counsel that the impugned ban is in violation of Article 19(1)(g) of The Constitution of India. Furthermore, counsel highlighted that the State government had entered into agreements with such small enterprises, that were manufacturing non-woven bags, as a part of various skill-development and entrepreneurship programmes promoted by the government. 21. It was also submitted that non-woven polypropyl ene is used in various medical, industrial, and other applications including diape rs, sanitary napkins etc., in terms of the 2016 Rules and they exhibit very high percentage values compared to non-woven carry bags. While the disposal of other poly-propylene products is permitted with treatment met hods, if and when stipulated, it was urged that the same logic can be extended to 1143 non-woven polypropylene bags as well. Further, To demonstrate its safety, counsel pointed out that polypropylene is often used as a non-absorbabl e, synthetic suture material in medical implants, in speciﬁ c surgeries, etc. which proves that it will not cause any health hazard to human being. It was further argued that scientiﬁ c studies proved that even the discarded bags can be used as an ingredient for laying asphalt roads; this technology was not being utilized by the government. Instead of adopting and implementing ecological alternatives for re-use and re-cycling of the plastic, the Governmen t had hastily imposed the ban without any scientiﬁ c study preceding such ban. 22. Regardless, that apart, counsel contended that non-woven carry bags cannot be categorised as one time or single use and throw away items. These will not be thrown away after one use and there is also no data to show that the non-woven carry bags are causing any impact on the environment. Given that they are not distributed for free, it is more compelling to conclude that people would not throw after single use, and will reuse. Further, waste segregation is an important task which the Municipal authoritie s or local body have to carry out. Instead of ensuring that the instrumentalities of the government are eﬃ ciently discharging such duties, the government had chosen to adopt a short cut method to ban the non-woven carry bags. If waste segregation is properly done by adopting scientiﬁ c and novel methods, the ban may not be necessary. 23. Further, before imposing the ban, the stakehold ers were not consulted and no notice was issued to the manufacturers as a whole. Even though some of the associations approached the Government and gave their objections, it was argued that in itself could not dispense with the requirement to hear all the stakeholders who are likely to be aﬀ ected before the ban. 24. Counsel argued also on the absence of data to establish that non- woven bags in fact contribute so heavily to litter. On the other hand, if the state intended to give eﬀ ect to the concept of micro plastics, they should also impose ban on other products (toothpaste, cosmetic items such as face wash, scrubs etc.), which directly aﬀ ect the marine life. However, those products are not banned by the Government but it had cho sen to ban only the non-woven carry bags and therefore, the impugned orde r is vitiated on the ground of discrimination. Counsel for the appel lants urged that there is no alternative to non-woven carry bags and they are no t made of TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES ASSOCIATION v. STATE OF TAMIL NADU [S. RA VINDRA BHAT, J.] 100% polypropylene. The consumption of water for manufact ure of jute, paper and cotton, far exceeds the impact of polypropyl ene. Chemicals which are more toxic and harmful to environment and hum an existence are used in the manufacture of industrial products, such as mercury and cyanide, but they are not either banned or prohibited by c iting ﬂ imsy and unfounded reasons. Respondents’ contentions 25. Learned counsel appearing on behalf of the State of Tamil Nadu, relied on the provisions of the EPA, speciﬁ cally – Sec tion 23 (central government’s power to delegate) and Section 5 (power to give directions). It was submitted that the impugned government order was well within the legislative competence of the State Government which issued the same under Section 5 of the EPA (pursuant to this power being delegated by the Central Government). This delegation of power, it was argued, empowered the state government to impose stringent regulations on any industry, operation, process including a complete or partial ban. Reliance was placed on AP Pollution Control Board v. Prof. M. Nayudu (Retd.) & Ors. 15 26. It was submitted that there was no repugnancy b etween the impugned government order and the 2016 Rules as they operate in distinct and independent ﬁ elds. The Rules specify regulatory measures, compliance of which is essential for the grant of registration for plastic manufacturers in terms of these Rules, whereas the impugned notiﬁ cation only seeks to ban certain plastics that are harmful to the environment. The High Court had rightly accepted this position. 16 Reliance was placed on Goodwill Plastic Industries v. Union Territory of Chandigarh 17 , the civil appeal against which, has also been disposed by this court. 27. Counsel laboured on the right to clean and hygienic environment as one falling under Article 21 of the Constitution and that this trumped the commercial interests of the appellants. The doctrine of public trust was pressed into service to buttress counsel’s arguments, and it was urged that the standard of judicial review to be applied by courts where environment 15 (2001) 2 SCC 62, para 43. 16 See paragraph 52 of the impugned HC judgment. 17 2013 SCC Online NGT 71, para 17. 1145 protection and interests of the general public are a stake, is a narrow one. Counsel pointed out numerous cases in this regard. 18 28. The appellants’ contention on violation of natural justice was strongly opposed; counsel highlighted that represen tation of both the appellants were taken into consideration by the respondent state government, and deliberations had also borne numerous clariﬁ cations. The High Court had rightly concluded that strict compliance with Rule 4 of the 1986 Rules was not warranted in the particular facts of the case an d given the huge publicity around this ban. 19 29. Counsel insisted that the appellant associations had been given ample opportunity to be heard; on 14.11.2018, the associations were invited for a hearing by the Steering Committee, where the appellants ur ged that paper cups had not been banned in other states that had instituted a ‘plastic ban’. It was only after hearing them, that the clariﬁ cation dated 08.12.2018 was made – by which their representation was rejected. 30. With regards to non-woven polypropylene bags, the State opposed the contention that it was a textile material and not plastic . CIPET has concluded that it is “polypropylene, a synthetic plastic wh ich is spun into ﬁ bres and bonded together by chemical or solvent treatment as non-woven fabric”. The ﬁ ller material used in these bags make them stiﬀ er, and water resistance. They easily break and thrown away frequently. It was stated that at high temperatures, polypropylene releases harmful substances and if it is used in a long period with slow degradation process, the potential crisis is more dangerous than plastic bags. It was submitted that the appellant itself claimed that this non-woven fabric degrades under sun light within a very short span of time; it physically breaks down into very small fragments (termed as ‘disintegration’) and is not degraded biologically to yield CO 2, water, inorganic compounds and biomass and does not leave any visible distinguishable or toxic residue as for the case of compostable plastics (which is deﬁ ned in ‘IS/ISO 17088:2008 – Speciﬁ cations for Compostable 18 M.C. Mehta v. Kamal Nath (1997) 1 SCC 388; Association for Environment Protection v. State of Kerala (2013) 7 SCC 226m Fomento Resorts and Hotels Ltd. v. Minguel Martins (2009) 3 SCC 571, M.I. Builders (P) Ltd. v. Radhyen Shyam Sahu (1999) 6 SCC 464. 19 See paragraph 56 of the impugned HC judgment. TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES ASSOCIATION v. STATE OF TAMIL NADU [S. RA VINDRA BHAT, J.] Plastics’). Therefore, the small fragments (known as ‘microplastics ’ and could in soil, freshwater, etc. and could have a long-term negative impact on such ecosystems. Reliance was placed on the Delh i High Court’s observations in WP (C) No. 8120/2009 20 and the NGT’s order 21 with respect to ban and use of plastic bags in State of Punjab and Haryana which included non-woven bags. 31. Attention was drawn to the three reports (IIT Madras Report, Report of Committee of Experts, and chemical tests conducted by CIPET) and counsel urged that the impugned notiﬁ cation was backed by expert data. Arguing that prohibition is only with respect to use and throw plastic, irrespective of whether they are recyclable or non-recyclable, as consumers nonchalantly discard these products widely, and lit ter unscrupulously, making it impossible to eﬀ ectively collect, segregate and recycle. The High Court was justiﬁ ed in rejecting the appellants’ challenge on this ground and holding that the ban is defensible on scientiﬁ c analysis since these products were not biodegradable. Analysis and conclusion A. Relevant provisions 32. Section 5 of the EPA, relates to the power to give directions: “ 5. POWER TO GIVE DIRECTIONS.- Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may, in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, oﬃ cer or any authority and such person, oﬃ cer or authority shall be bound to comply with such directions Explanation--For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes th e power to direct-- (a) the closure, prohibition or regulation of any i ndustry, operation or process; or (b) stoppage or regulation of the sup ply of electricity or water or any other service.” 20 Paragraph 9 and 11 of judgment dated 28.08.2009 passed by the Delhi High Court in WP (C) No. 8120/2009. 21 Original Application No. 442/2015. 1147 By Notiﬁ cation dated 10.02.1988, the Ministry of E nvironment and Forest, Government of India, in exercise of its powe rs under Section 23 of the EPA, delegated its power vested under Section 5 of the Act, to numerous states – including Tamil Nadu. The Notiﬁ cation stated that the Central Government may revoke such delegation of powers in respe ct of all or any of the state governments, or may itself invoke Se ction 5 of the Act, if it found such course of action necessary in the interest of public interest. 22 33. Rule 4 of the 1986 Rules, is to be read with Section 5, and is relied upon by the appellants: “4. DIRECTIONS – (1) Any direction issued under section 5 shall be in writing. (2) The direction shall specify the nature of action to be taken and the time within which it shall be complied with by the person, oﬃ cer or the authority to whom such direction is given . (3) (a) The person, oﬃ cer or authority to whom any direction is sought to be issued shall be served with a copy of the proposed direction and shall be given an opportunity of not less than ﬁ fteen days from the date of service of a notice to ﬁ le with an oﬃ cer designated in this behalf the objections, if any, to the issue of the proposed direction . (b) Where the proposed direction is for the stoppage or reg ulation of electricity or water or any other service aﬀ ecting the carrying on any industry, operation or process and is sought to be issued to an oﬃ cer or an authority, a copy of the proposed direction shall also be endorsed to the occupier of the industry, operation or process, as the case may be and objections, if any, ﬁ led by the occupier with an oﬃ cer designated in this behalf shall be dealt with in accordance with the procedures under sub-rules (3a) and (4) of this rule: Provided that no opportunity of being heard shall be given to the occupier if he had already been heard earlier and t he proposed direction referred to in sub-rule (3b) above for th e stoppage or 22 Notiﬁ cation No. S.O. 152(E) dated 10.02.1988. TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES ASSOCIATION v. STATE OF TAMIL NADU [S. RA VINDRA BHAT, J.] regulation of electricity or water or any other service was the resultant decision of the Central Government after such earlier hearing. (4) The Central Government shall within a period of 45 days from the date of receipt of the objections, if any or from the date up to which an opportunity is given to the person, oﬃ cer or authority to ﬁ le objections whichever is earlier , after considering the objections, if any, received from the person, oﬃ cer or authority sought to be directed and for reasons to be recorded in writing, conﬁ rm, modify or decide not to issue the proposed direction. (5) In case where the Central Government is of the opinion that in view of the likelihood of a grave injury to the environment it is not expedient to provide an opportunity to ﬁ le objections a gainst the proposed direction, it may, for reasons to be recorded in writing, issue directions without providing such an opportunity. (6) Every notice or direction required to be issued under this rule shall be deemed to be duly served (a) where the person to be served is a company, if the document is addressed in the name of the company at its registered oﬃ ce or at its principal oﬃ ce or place of business and is either- (i) sent by registered post, or (ii) delivered at its r egistered oﬃ ce or at the principal oﬃ ce or place of business; (b) where the person to be served is an oﬃ cer serving Government, if the document is addressed to the person and a copy ther eof is endorsed to this Head of the Department and also to the Secretary to the Government, as the case may be, in-charge of the Department in which for the time being the business relating to the Depar tment in which the oﬃ cer is employed is transacted and is either- (i) sent by registered post, or (ii) is given or tendered to him; (c) in any other case, if the document is addressed to the pe rson to be served and- (i) is given or tendered to him, or 1149 (ii) if such person cannot be found, is aﬃ xed on some conspicuous part of his last known place of residence or business or is given or tendered to some adult member of his family or is aﬃ xed on so me conspicuous part of the land or building, if any, to which it relates, or (iii) is sent by registered post to that person Explanation.-For the purpose of this sub-rule:- (a) “company” means any body corporate and includes a ﬁ rm or other association of individuals; (b) “a servant” is not a member of the family” (emphasis supplied) 34. That the State has the legislative competence to impose a ban – of the kind contained in the government order (one which may have the eﬀ ect of aﬀ ecting industries even) - in exercise of its power under Section 5 of the EPA, is borne out from a reading of the relevant provisions. 35. The other regulations at play are the 2016 Rules which deﬁ ne ‘plastic’ and ‘compostable plastics’: “’plastics’meanmaterial which contains as an essential ingredient , ahigh polymer such as polyethylene terephthalate, h igh density polyethylene, Vinyl, low density polyethylene, poly propylene, polystyrene resins, multi-materials like acrylonitrile butadiene styrene, polyphenylene oxide, polycarbonate, Polybutylene terephthalate. ‘compostable plastics’ mean plastic that undergoes degradation by biological processes during composting to yield CO2, water, inorganic compounds and biomass at a rate consistent with oth er known compostable materials, excluding conventional petro-based plastics, and does not leave visible, distinguishable or toxic residue;” 36. At the outset, it is pertinent also to point out that the NGT dismissing the matter as not maintainable, struck this court, as rather strange. A quick glance at Section 16 of the National Green Tribunal Act, 2010 reveals that orders issued under Section 5 of the EPA fall squarely within the NGT ’s remit: TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES ASSOCIATION v. STATE OF TAMIL NADU [S. RA VINDRA BHAT, J.] “16. Any person aggrieved by, – […] “(g) any direction issued, on or after the commence ment of the National Green Tribunal Act, 2010, under Section 5 of the Environment (Protection) Act, 1986;” 37. The High Court, while deciding the question of natural justice, in light of Section 5 of the Act, read with Rule 4 of the Rules, held that since the ban only came into force on 01.01.2019 (i.e., 6 months after the date of the order), the petitioners were well aware of the ban and had even made representations that were heard and disposed, prior to the ban taking eﬀ ect. Observing that individual notices cannot be expected to all concerne d, it was held that when a policy decision of this nature is taken in larger public interest, there was no violation of principles of natural justice. 38. In the present case, the paper cup association sent in their representation, received an opportunity for a perso nal hearing, and a committee of experts was constituted to consider their represen tation. It was only after this, on 08.12.2018, that their representation was disp osed of, with reasons. 39. A reference to Rule 4, indicates that it is mandatory. This court has dealt, in several cases with the question of post-facto decisional hearing. There is no gainsaying that principles of natural justice have to be complied with wherever the law requires that course. It is also an accepted principle that the silence of a statute or rule about natural justice, nevertheless, calls for a minimum hearing. At the same time, there have been cases, where the court has permitted post decisional hearing: notably in Liberty Oil Mills 23 . There the court recognized that there can be emergencies or urgent situations calling for immediate or expedient action, which cannot be delayed. In such eventualities, this court held that the rule of prior hearing can be dispensed with. In Dharampal Satyapal Ltd. v. CCE 24 held that the principles of natural justice cannot be placed in a straitjacket, especially if a fair hearing would 23 Liberty Oil Mills v. Union of India , (1984) 3 SCC 465 24 (2015) 8 SCC 519 1151 in any event have resulted in the same decision. 25 A closer look at Rule 4(5) of the 1986 Rules reveals that it also contains within it, an exemp tion for furnishing prior notice in the interest of expediency. 40. In the present case, there is no doubt that a pre-decisional hearing was not granted. Yet, the court cannot be oblivious of the fact that the state notiﬁ ed the rules, on 25.06.2018 and did not bring it into force immediately. The ban was made eﬀ ective, only from 01.01.2019. The petitioners and other parties were aﬀ orded the opportunity to represent and make their views known, which they did. Undoubtedly, the state did not accept those views. The question then, is whether this court should insist that the failure to grant opportunity prior to the government order, should result in invalidation of the ban itself. If one keeps in mind the larger public interest sought to be subserved by the impugned government order, and also importantly the circumstance, that the Central Government notiﬁ cation dated 01.07.2022 has resulted in a complete ban on single use cups among other use and throw plastic products, the public interest cannot be ignored. 41. Therefore, this court holds that though the mandate of the rule calls for pre-decisional hearing, in the peculiar facts of this case, given the eﬄ ux of time, the resultant likely injury to the public in the event the notiﬁ cation is interfered with, interests of justice require that such infraction should not result in the invalidation of the notiﬁ cation. B. Considering the ban, on merits 42. Both counsel appearing for the appellants argued at length on the merits of the ban and whether the State Government had taken an appropriate decision to ban their respective products. (i) Paper cups 43. The main argument of the petitioners is that the use of plastic in paper cups is minimal [the ratio being 6% plastic and 94% paper] and that the blanket ban, of their products, is unreasonab le, arbitrary, and disproportionate. The report of the expert body, Central Institute of Plastic Engineering and Technology, led to the re-examination of the issue, i.e., the 25 See also, Karnataka SRTC v. S.G. Kotturappa. , (2005) 3 SCC 409, P .P . Agrawal v. State Bank of India , (2006) 8 SCC 776 TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES ASSOCIATION v. STATE OF TAMIL NADU [S. RA VINDRA BHAT, J.] ban on use of the petitioners’ paper cups reinforced with plastic coating, and the TNPCB’s subsequent order, dated 8.12.2018, which pertinently, reads as follows: “Based on the representation, an Expert Committee was constituted as per the instructions during the Steering Committee meet ing. The Committee has reported that poly-coated paper cup contains 94% paper (cellulose) & 6% LDPE. Further TNPCB tested the LDP E coated disposable paper cup samples in CIPET. Chennai for material identiﬁ cation test analysis. As per CIPET results, paper cups are paper substrate coated with ethylene/ polyvinyl/ acetate which is a synthetic polymer . The polymeric nature is not easily degradable under natural environmental conditions. Accordingly, the LDPE coated disposable paper cups are banned and hence the representation cannot be considered” 44. The Report submitted by IIT (on the basis of wh ich, the ban was ﬁ rst imposed) states that consumption of reinf orced paper cups would be deleterious to the environment as it would lead to cutting of more trees, and the recycling of which, will cause more pollution. It also recommended alternatives such as leaf products, kor a grass, products made of coconut, screw pine, earthen products, stee l products, etc. The Expert Committee Report, similarly, concluded that paper c ups are near impossible to recycle due to the LDPE coating, whil e relying on the CIPET testing. 45. That these cups are indiscriminately used and thrown, as a single use product (often to drink a warm beverage) – requires no statisti cs. By composition itself, they are non-biodegradable, and there is immense diﬃ culty in their recycling, as it requires appropriate collecting mechanisms, strict segregation, to name a few of the challenges. The appellants insisted that that this is a situation of not having an eﬀ ective collective mechanism, which the local municipal corporations are responsible for as per the 2016 Rules; they also oﬀ ered to take up the responsibility. However, given that there is scientiﬁ c basis for the ban, and it is the State Government’s policy decision to ban numerous categories of single use plastic products, in public interest, there is little room or reason, for this court to interfere on the ground of merits of the ban. 1153 46. Therefore, the contention that the ban is over inclusive, and disproportionate, are in the considered opinion of this court, not made out in relation to reinforced paper cups. The appellant’s right under Article 19(1)(g) has, without a doubt, been restricted; but in the larger interest of the general public to enjoy a pollution free environment the restriction was reasonable as per Article 19(6) of the Constitution of India, and is therefore, upheld. (ii) Non-woven plastic bags 47. The ban of non-woven plastic bags was explained in the letter dated 08.12.2018 in response to a manufacturer-association seeking clariﬁ cation. The letter read: “Non woven carry bags are made up of polypropylene, which does not easily degrade in natural environment. Further, non-woven fabric carry bag samples tested from CIPET, Chennai for Material Identiﬁ cation test analysis, indicates that it is a polypropylene (synthetic plastic). The polymeric nature is not easily degradable under natural environmental conditions. Accordingly, the non woven polypropylene carry bags are banned” 48. This court is of the considered opinion that the arguments in the case of the non-woven bag, stand on a slightly diﬀ erent footing. These bags, it appears are reusable in nature to some extent . Their composition/ proportion of polypropene and ﬁ ller used, in the manufactur e of these bags, is customizable. Therefore, the appellant contended that t he overall ban was disproportionate. The State insisted that despit e being said to be reusable to an extent, they are indiscriminately di sposed and cause littering, which damage ground water, soil quality, etc., because they do not biodegrade properly, and this therefore, justiﬁ ed the ban. Unlike reinforced papercups, these bags are reusable, recyclable, and capable of some level of biodegradation (based on the composition), but no committee was constituted to looked into it more closely, and it was in fact brought within the scope of the ban subsequently by way of clariﬁ cation; the ban of this product perhaps deserves further scrutiny. 49. One of the arguments made by the appellants was that the St ate government should have taken into consideration that the Government of India had by order dated 13.12.2018, constituted an expert committee t o TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES ASSOCIATION v. STATE OF TAMIL NADU [S. RA VINDRA BHAT, J.] deﬁ ne ‘single use plastics’ in view of the conﬂ icting decisions by various state governments on ban of such products, and that the decision of the steering committee to proceed without waiting for the Union government’s report is arbitrary and prejudicial. Though not applicable to the present lis , it is appropriate to note the amendments that have been made to the central Rules, since. The committee constituted by the Union Government, resulted in the Expert Committee Report on Single Use Plastics dated 19 .09.2019 (which led to further amendments in the 2016 Rules). 50. The 2016 Rules were amended in 2018, 2021, and 2022. While the 2022 Amendment 26 inserted the deﬁ nition of ‘biodegradable plastics’ 27 in the Rules, the 2021 Amendment 28 to the 2016 Rules, inserted the deﬁ nition for ‘non-woven bags’ and ‘single use plastic commodity’ which read as follows: (na) “Non-woven plastic bag” means Non-woven plastic bag made up of plastic sheet or web structured fabric of entangled plastic ﬁ bers or ﬁ laments (and by perforating ﬁ lms) bonded together by mechanical or thermal or chemical means, and the “non-woven fabric” means a ﬂ at or tufted porous sheet that is made directly from plastic ﬁ bres, molten plastic or plastic ﬁ lms;‟ […] (va) “Single-use plastic commodity” mean a plastic item intended to be used once for the same purpose before being disposed of or recycled;” These deﬁ nitions are similar to the understanding that the State Government of Tamil Nadu employed, in the ban that is the subject of the present case. 26 Plastic Waste Management (Second Amendment) Rules, 2022, G.S.R. 52 2(E) w.e.f. 06.07.2022. 27 Rule 3(ac) ― “ Biodegradable plastic” means plastics, other than compost able plastics, which undergoes degradation by biological proces ses under ambient environment (terrestrial or in water) conditions, without leaving any micro plastics, or visible, or distinguishable or toxic residue, which has adverse environment impacts, adhering to laid down standards of Bureau of Indian Standards and c ertiﬁ ed by the Central Pollution Control Board ” 28 Plastic Waste Management (Amendment) Rules, 2021 G.S.R. 571( E), w.e.f. 12.08.2021. 1155 51. The 2021 Amendment also included a similar ban of single use plastic commodities w.e.f. 01.07.2022, through an amendment to Rule 4 which inserted sub-clause (2), (3) and (4): “(1) […] (2) The manufacture, import, stocking, distribution, sale and us e of following single use plastic, including polystyrene a nd expanded polystyrene, commodities shall be prohibited with eﬀ ect from the 1st July, 2022:- (a) ear buds with plastic sticks, plastic sticks for balloons, plastic ﬂ ags, candy sticks, ice-cream sticks, polystyrene [Thermocol] for decoration; (b) plates, cups, glasses, cutlery such as forks, spoons, knives, straw, trays, wrapping or packing ﬁ lms around sweet boxes, invitation cards, and cigarette packets, plastic or PVC banners less than 100 micron, stirrers. (3) The provisions of sub-rule (2) (b) shall not apply to commodities made of compostable plastic. (4) Any notiﬁ cation prohibiting the manufacture, import, stockin g, distribution, sale and use of carry bags, plastic sheets or like, or cover made of plastic sheets and multilayered packaging and single-us e plastic, including polystyrene and expanded polystyrene, commodities, issued after this notiﬁ cation, shall come into force after the expiry of ten years, from the date of its publication” 52. The same Rule 4, was also amended in sub-clause (1), to regulate the manufacture of non-woven plastic bags, w.e.f. 01.09.2021: “( j) non-woven plastic carry bag shall not be less than 60 Gram Per Square Meter (GSM) with eﬀ ect from the 30th September , 2021” 53. Given that the amended 2016 Rules now allow non-woven bags above 60 GSM to be manufactured and used, i.e., the Centre has found a way to regulate it, rather than ban it – there is some merit in the appellant’s contention regarding disproportionality. If a less onerous restriction on the appellant’s Article 19(6) right is possible, it must be favoured. In light of the developments in terms of the amendment to the 2016 Rules, this court is of TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES ASSOCIATION v. STATE OF TAMIL NADU [S. RA VINDRA BHAT, J.] the considered opinion that it would be appropriate, and just, to remand the question of including non-woven bags within the single use plastic products ban, back to the TNPCB for consideration. 54. In light of the foregoing discussion, the C.A. No. 8536/2022 is hereby disposed of, seeing no reason to interfere with the High Court’s ﬁ ndings on the ban of reinforced papercups. C.A. Nos.8537-38/2022 are partly allowed in the above terms; wherein the TNPCB is hereby directed to consider the case of non-woven bags afresh, in light of the 2016 Rules (as amended). There shall be no order on costs.