TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES ASSOCIATIONversusSTATE OF TAMIL NADU & ORS

                  [2023] 14 S.C.R. 1133 : 2023 INSC 952



                              CASE DETAILS
          TAMIL NADU AND PUDUCHERRY PAPER CUP
               MANUFACTURES ASSOCIATION
                                       v.
                    STATE OF TAMIL NADU & ORS
                  (Civil Appeal No(s). 8536 of 2022 etc.)
                            OCTOBER 20, 2023
                  [S. RAVINDRA BHAT AND
            PAMIDIGHANTAM SRI NARASIMHA, JJ.]
                               HEADNOTES
     Issue for consideration: Whether the High Court was justified in
dismissing the writ petitions filed by the appellants-association representing
manufacturing units of ‘reinforced’ paper cups, and non-woven plastic
bags, challenging the government order banning manufacture, storage,
supply, transport, sale, distribution, and use of plastic coated teacups and
non-woven bags.
     Environment Protection Act, 1986 – ss. 5, 23 – Plastic coated teacups
and non-woven bags – Government Order banning manufacture,
storage, supply, transport, sale, distribution, or use of plastic coated
teacups and non-woven bags – Challenged to – High Court upheld the
ban – Interference with:
      Held: Though the mandate of the 1986 Rule calls for predecisional
hearing, on facts, given the efflux of time, the resultant likely injury to
the public in the event the notification is interfered with, interests of
justice require that such infraction should not result in the invalidation of
the notification – By composition itself, plastic coated teacups are non-
biodegradable, and there is immense difficulty in their recycling, as it requires
appropriate collecting mechanisms, strict segregation – Given that there is
scientific 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 no reason for interference with the High Court’s findings on the
ban of reinforced papercups – Association’s right u/Art. 19(1)(g) has been
restricted; but in the larger interest of the general public to enjoy a pollution
                                       1133
1134         SUPREME COURT REPORTS                       [2023] 14 S.C.R.


free environment the restriction was reasonable as per Art. 19(6), thus,
upheld – As regards non-woven bags, the amended 2016 Rules now allow
non-woven bags above 60 GSM to be manufactured and used – Centre has
found a way to regulate it, rather than ban it – In view thereof, the Tamil
Nadu Pollution Control Board directed to consider the case of non-woven
bags afresh in light of amended 2016 Rules – Environment (Protection)
Rules, 1986 – Plastic Waste Management Rules, 2016 . [Para 41, 46, 54]
     Doctrines/Principles – Principles of natural justice – Compliance
of – Rule of prior hearing – Dispensation with – When:
      Held: Principles of natural justice have to be complied with wherever
the law requires that course – Silence of a statute or rule about natural
justice, nevertheless, calls for a minimum hearing – There are cases, where
the court permits post decisional hearing – There can be emergencies or
urgent situations calling for immediate or expedient action, which cannot be
delayed – In such eventualities, the rule of prior hearing can be dispensed
with. [Para 39]
       LIST OF CITATIONS AND OTHER REFERENCES
      Andhra Pradesh Pollution Control Board v. M.V. Nayudu (2001) 2
SCC 62 : [2000] 5 Suppl. SCR 249; Bajaj Hindustan Ltd. v. Sir Shadi Lal
Enterprises Ltd. (2011) 1 SCC 640 : [2010] 15 SCR 156; Victoria Memorial
Hall v. Howra Ganatantrik Nagrik Samity and others (2010) 3 SCC 732 :
[2010] 3 SCR 190; Basavaiah (Dr) v. Dr. H.L. Ramesh and Ors. (2010) 8
SCC 372 : [2010] 9 SCR 227; Cellular Operators Association of India &
Ors., v. TRAI (2016) 7 SCC 703 : [2016] 9 SCR 1; M.C. Mehta v. Union of
India (2004) 12 SCC 118 : [2004] 3 SCR 126; AP Pollution Control Board
v. Prof. M. Nayudu (Retd.) & Ors (2001) 2 SCC 62 : [2000] 5 Suppl. SCR
249; Goodwill Plastic Industries v. Union Territory of Chandigarh 2013
SCC Online NGT 71; M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 :
[1996] 10 Suppl. SCR 12; Association for Environment Protection v. State
of Kerala (2013) 7 SCC 226 : [2013] 7 SCR 352; Fomento Resorts and
Hotels Ltd. v. Minguel Martins (2009) 3 SCC 571 : [2009] 3 SCR ; M.I.
Builders (P) Ltd. v. Radhyen Shyam Sahu (1999) 6 SCC 464 : [1999] 3
SCR 1066; Liberty Oil Mills v. Union of India (1984) 3 SCC 465 : [1984]
3 SCR 676; Dharampal Satyapal Ltd. v. CCE (2015) 8 SCC 519 : [2015] 6
    TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES 1135
             ASSOCIATION v. STATE OF TAMIL NADU


SCR 437; Karnataka SRTC v. S.G. Kotturappa (2005) 3 SCC 409 : [2005]
2 SCR 520; P.P. Agrawal v. State Bank of India (2006) 8 SCC 776 : [2006]
1 Suppl. SCR 454 – referred to.
        OTHER CASE DETAILS INCLUDING IMPUGNED
               ORDER AND APPEARANCES
       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8536 of 2022.
     From the Judgment and Order dated 11.07.2019 of the High Court of
Judicature at Madras in WP No.3984 of 2019.
       With
       Civil Appeal Nos. 8537-8538 of 2022.
       Appearances:
     Balaji Subramanian, A. Lakshminarayanan, Ms. Shobha Ramamoorthy,
Shilp Vinod, M.A. Karthik, Ms. Ritika Rao, Advs. for the Appellant.
    Shobhit Dwivedi, Dr. Joseph Aristotle S., M. Yogesh Kanna, Vinodh
Kanna B., Rajat Nair, Nishesh Sharma, Ashok Panigrahi, Sharath Nambiar,
Ms. Ruchi Kohli, Nakul Chengappa K. K., T. S. Sabarish, Sandeep Kr.
Mahapatra, Amrish Kumar, Gurmeet Singh Makker, Mrs. Anil Katiyar,
Advs. for the Respondents.
        JUDGMENT / ORDER OF THE SUPREME COURT

                                JUDGMENT

       S. RAVINDRA BHAT, J.
      1. These appeals were heard finally, 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 order2 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’).
1136           SUPREME COURT REPORTS                                 [2023] 14 S.C.R.


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 exercise of its
power under Section 5 of the Environment Protection Act, 1986 (‘EPA’)
on 25.06.2018 and it was to take effect from 01.01.2019. The Government
Order included directions, banning manufacture, storage, supply, transport,
sale, distribution, or use of “use and throwaway plastics” – which as per
Explanation 2, included plastic carry bags, plastic flags, 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-woven bags were not
expressly mentioned until a clarification dated 08.12.2018 issued by the
state government, brought them within the scope of the ban.
      3. The directions also contained exemptions for plastic carry bags
produced exclusively for export purposes by an industry in an SEZ or
EOU; plastic bags which constitute or form an integral 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 Notification.



3   See Explanation 5 for definition.
4   During the pendency of litigation, there have been further amendments to the
    Government Order; by Notification 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 effect that alternatives to the 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).
    TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES 1137
    ASSOCIATION v. STATE OF TAMIL NADU [S. RAVINDRA BHAT, J.]


      4. The appellant paper cup association made a representation 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 properties of paper
cups and compostable plastics. The Expert Committee discussed the
properties of LDPE coated paper cups, and alternative bioplastics which
were biodegradable. It concluded that the LDPE made such cups non-
biodegradable, but recyclable. However, due to insufficient 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 hearing
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 ban’. The
association’s representation was rejected on 08.12.2018 by the TNPCB on
two grounds: firstly, that this policy to ban one time use and throwaway
plastics was to safeguard the environment in light of the Plastic Waste
Management Rules, 2016 (hereafter ‘2016 Rules’); and secondly, that the
Expert Committee had concluded that the composition of the product, madee
it difficult 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 rejected on
similar grounds on 08.12.20185 through a clarification issued by TNPCB
and a further detailed clarification issued by the State 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
Notification before the NGT which was dismissed6 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 fibres 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.
1138           SUPREME COURT REPORTS                              [2023] 14 S.C.R.


      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: firstly, 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 association 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 notification,
inviting objections and passing a final notification 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 drains. 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 filed
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 Court8, NGT9) as having
rightly upheld the State’s competence to pass such government 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. 34065/2018 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.
 TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES 1139
 ASSOCIATION v. STATE OF TAMIL NADU [S. RAVINDRA BHAT, J.]


court held that since they were non-biodegradable, their reusability carried
the risk of pathogenic transmission, and the bags have tendency to cause
reduction in rainfall infiltration and ground water discharge, there was no
basis to conclude they were eco-friendly carry bag alternatives; the State
had pursuant to a CIPET study, banned them. Given that the court is not
scientific 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 filed under Article
226 of the Constitution. With regards to cups, it was noted that they are
indiscriminately used and thrown after single use, accumulating in huge
quantities, and causing an eye sore; since they squarely fall within ‘one
time use and throw’ plastics, the ban was justified.
    11. The appellants seek this court’s intervention on the ground that the
common judgment was passed without considering the specific 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
notification) 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 different 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 – firstly
that there was no scientific basis for the ban, which created an arbitrary
classification; 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 notification. 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.
1140          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


the classification – 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 notification
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 plastic cups; the
Expert Committee Report specifically 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 different purposes; and
that while the CIPET report elaborates on the physical characteristics of
paper cups, there is no finding 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 notification, with a period of at least 15 days to make a reply
to the same, followed by the issuance of a written order dealing with the
objections raised. Reliance was placed on this Court’s judgment in Cellular
Operators Association of India & Ors., v. TRAI12.
      16. Counsel submitted that the High Court had proceeded 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 & Handling)
Rules 2016, the responsibility of creating and putting in place a collection
mechanism was placed on the municipal corporations. The failure to do
so, cannot impede the appellants’ right to carry out its business. Without


12 (2016) 7 SCC 703 [para 74].
 TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES 1141
 ASSOCIATION v. STATE OF TAMIL NADU [S. RAVINDRA BHAT, J.]


conceding their case, counsel expressed the appellants’ 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 magnified 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 affects 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 India13.
      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 fibres similar to polyester filaments used for manufacturing
of sarees, shirts etc.; and non-woven fabrics have wide usage14. They
have weak chemical structure and are made of a mono-polymer, making
it easy to segregate and recycle. Non-woven polypropylene carry bags
are reusable alternatives to plastic bags. They have a fabric like structure
with air and water permeability. Therefore, even if the non-woven carry
bags are discarded, there is no possibility for clogging or choking of water
channel, drains, sewer lines etc., and affecting 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 within
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 (surgical gown, face mask,
   shoe covers, caps, etc.), filters (vacuum bags, hepafilteration), 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.)
1142         SUPREME COURT REPORTS                          [2023] 14 S.C.R.


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 classified 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 fixed
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 fixed percentage as may be fixed by this Court or any other
authority. In this way, the state can regulate the ratio of polypropylene in
non-woven carry bags by fixing 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 purposes.
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 polypropylene is used
in various medical, industrial, and other applications including diapers,
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 methods, if
and when stipulated, it was urged that the same logic can be extended to
 TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES 1143
 ASSOCIATION v. STATE OF TAMIL NADU [S. RAVINDRA BHAT, J.]


non-woven polypropylene bags as well. Further, To demonstrate its safety,
counsel pointed out that polypropylene is often used as a non-absorbable,
synthetic suture material in medical implants, in specific surgeries, etc. which
proves that it will not cause any health hazard to human being. It was further
argued that scientific 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 Government had
hastily imposed the ban without any scientific 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 authorities or local
body have to carry out. Instead of ensuring that the instrumentalities of the
government are efficiently 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 scientific and novel methods, the
ban may not be necessary.
     23. Further, before imposing the ban, the stakeholders 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 affected 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 effect 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 affect the marine life. However, those
products are not banned by the Government but it had chosen to ban only
the non-woven carry bags and therefore, the impugned order is vitiated
on the ground of discrimination. Counsel for the appellants urged that
there is no alternative to non-woven carry bags and they are not made of
1144          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


100% polypropylene. The consumption of water for manufacture of jute,
paper and cotton, far exceeds the impact of polypropylene. Chemicals
which are more toxic and harmful to environment and human existence
are used in the manufacture of industrial products, such as mercury and
cyanide, but they are not either banned or prohibited by citing flimsy and
unfounded reasons.
       Respondents’ contentions
      25. Learned counsel appearing on behalf of the State of Tamil Nadu,
relied on the provisions of the EPA, specifically – Section 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 between the
impugned government order and the 2016 Rules as they operate in distinct
and independent fields. 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 notification 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 Chandigarh17, 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.
 TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES 1145
 ASSOCIATION v. STATE OF TAMIL NADU [S. RAVINDRA BHAT, J.]


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 representation of both the
appellants were taken into consideration by the respondent state government,
and deliberations had also borne numerous clarifications. 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 and 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 urged that
paper cups had not been banned in other states that had instituted a ‘plastic
ban’. It was only after hearing them, that the clarification 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 which is spun into
fibres and bonded together by chemical or solvent treatment as non-woven
fabric”. The filler material used in these bags make them stiffer, 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 defined in ‘IS/ISO 17088:2008 – Specifications 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.
1146           SUPREME COURT REPORTS                            [2023] 14 S.C.R.


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 Delhi High Court’s
observations in WP (C) No. 8120/200920 and the NGT’s order21 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 notification 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 litter unscrupulously,
making it impossible to effectively collect, segregate and recycle. The High
Court was justified in rejecting the appellants’ challenge on this ground and
holding that the ban is defensible on scientific 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,
       officer or any authority and such person, officer 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 the power
       to direct-- (a) the closure, prohibition or regulation of any industry,
       operation or process; or (b) stoppage or regulation of the supply 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.
 TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES 1147
 ASSOCIATION v. STATE OF TAMIL NADU [S. RAVINDRA BHAT, J.]


      By Notification dated 10.02.1988, the Ministry of Environment
and Forest, Government of India, in exercise of its powers under Section
23 of the EPA, delegated its power vested under Section 5 of the Act, to
numerous states – including Tamil Nadu. The Notification stated that the
Central Government may revoke such delegation of powers in respect of
all or any of the state governments, or may itself invoke Section 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, officer or
      the authority to whom such direction is given.
      (3) (a) The person, officer 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 fifteen days from the date
      of service of a notice to file with an officer 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 regulation
      of electricity or water or any other service affecting the carrying on
      any industry, operation or process and is sought to be issued to an
      officer 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, filed by the occupier with an officer
      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 the proposed
      direction referred to in sub-rule (3b) above for the stoppage or


22 Notification No. S.O. 152(E) dated 10.02.1988.
1148           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


       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, officer or authority to file objections
       whichever is earlier, after considering the objections, if any, received
       from the person, officer or authority sought to be directed and for
       reasons to be recorded in writing, confirm, 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 file objections against 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 office or at its
       principal office or place of business and is either-
       (i) sent by registered post, or (ii) delivered at its registered office or
       at the principal office or place of business;
       (b) where the person to be served is an officer serving Government,
       if the document is addressed to the person and a copy thereof 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 Department in
       which the officer 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 person to
       be served and-
            (i) is given or tendered to him, or
 TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES 1149
 ASSOCIATION v. STATE OF TAMIL NADU [S. RAVINDRA BHAT, J.]


     (ii) if such person cannot be found, is affixed 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 affixed on some
     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 firm 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 effect
of affecting 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 define
‘plastic’ and ‘compostable plastics’:
     “’plastics’meanmaterial which contains as an essential ingredient,
     ahigh 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.
     ‘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 other 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:
1150           SUPREME COURT REPORTS                        [2023] 14 S.C.R.


       “16. Any person aggrieved by, –
       […]
       “(g) any direction issued, on or after the commencement 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 effect.
Observing that individual notices cannot be expected to all concerned, 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 personal hearing, and a
committee of experts was constituted to consider their representation. It
was only after this, on 08.12.2018, that their representation was disposed
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 Mills23.
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. CCE24 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
 TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES 1151
 ASSOCIATION v. STATE OF TAMIL NADU [S. RAVINDRA BHAT, J.]


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 exemption 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
notified the rules, on 25.06.2018 and did not bring it into force immediately.
The ban was made effective, only from 01.01.2019. The petitioners and other
parties were afforded 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 notification 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 efflux
of time, the resultant likely injury to the public in the event the notification
is interfered with, interests of justice require that such infraction should not
result in the invalidation of the notification.
      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 unreasonable, 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
1152          SUPREME COURT REPORTS                            [2023] 14 S.C.R.


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 meeting. The
       Committee has reported that poly-coated paper cup contains 94%
       paper (cellulose) & 6% LDPE. Further TNPCB tested the LDPE
       coated disposable paper cup samples in CIPET. Chennai for material
       identification 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 which, the ban
was first imposed) states that consumption of reinforced 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, kora grass, products
made of coconut, screw pine, earthen products, steel products, etc. The
Expert Committee Report, similarly, concluded that paper cups are near
impossible to recycle due to the LDPE coating, while 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 statistics. By
composition itself, they are non-biodegradable, and there is immense
difficulty 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 effective collective mechanism,
which the local municipal corporations are responsible for as per the 2016
Rules; they also offered to take up the responsibility. However, given that
there is scientific 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.
 TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES 1153
 ASSOCIATION v. STATE OF TAMIL NADU [S. RAVINDRA BHAT, J.]


      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 clarification.
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 Identification
     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 different footing. These
bags, it appears are reusable in nature to some extent. Their composition/
proportion of polypropene and filler used, in the manufacture of these
bags, is customizable. Therefore, the appellant contended that the overall
ban was disproportionate. The State insisted that despite being said to
be reusable to an extent, they are indiscriminately disposed and cause
littering, which damage ground water, soil quality, etc., because they do not
biodegrade properly, and this therefore, justified 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 clarification; the ban of this product perhaps
deserves further scrutiny.
     49. One of the arguments made by the appellants was that the State
government should have taken into consideration that the Government of
India had by order dated 13.12.2018, constituted an expert committee to
1154           SUPREME COURT REPORTS                                 [2023] 14 S.C.R.


define ‘single use plastics’ in view of the conflicting 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 Amendment26 inserted the definition of ‘biodegradable plastics’27 in the
Rules, the 2021 Amendment28 to the 2016 Rules, inserted the definition 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 fibers or
       filaments (and by perforating films) bonded together by mechanical
       or thermal or chemical means, and the “non-woven fabric” means
       a flat or tufted porous sheet that is made directly from plastic fibres,
       molten plastic or plastic films;‟
       […]
       (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 definitions 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. 522(E) w.e.f.
   06.07.2022.
27 Rule 3(ac) ― “Biodegradable plastic” means plastics, other than compostable
   plastics, which undergoes degradation by biological processes 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 certified by the
   Central Pollution Control Board”
28 Plastic Waste Management (Amendment) Rules, 2021 G.S.R. 571(E), w.e.f.
   12.08.2021.
 TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES 1155
 ASSOCIATION v. STATE OF TAMIL NADU [S. RAVINDRA BHAT, J.]


      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 use of
     following single use plastic, including polystyrene and expanded
     polystyrene, commodities shall be prohibited with effect from the 1st
     July, 2022:-
     (a) ear buds with plastic sticks, plastic sticks for balloons, plastic flags,
     candy sticks, ice-cream sticks, polystyrene [Thermocol] for decoration;
     (b) plates, cups, glasses, cutlery such as forks, spoons, knives, straw,
     trays, wrapping or packing films 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 notification prohibiting the manufacture, import, stocking,
     distribution, sale and use of carry bags, plastic sheets or like, or cover
     made of plastic sheets and multilayered packaging and single-use
     plastic, including polystyrene and expanded polystyrene, commodities,
     issued after this notification, 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 effect 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
1156           SUPREME COURT REPORTS                           [2023] 14 S.C.R.


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
findings 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.


Headnotes prepared by:       C.A. No. 8536/2022 disposed of and C.A. Nos.8537-38/2022
Nidhi Jain                                                             partly allowed.