# CASE DETAILS TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES ASSOCIATION v. STATE OF TAMIL NADU & ORS

- **Citation:** 2023 INSC 952
- **Court:** Supreme Court of India
- **Decided:** 2023-10-20
- **Case number:** Civil Appeal No. 8536 of 2022
- **Bench:** S. Ravindra Bhat, Pamidighantam Sri Narasimha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-tamil-nadu-and-puducherry-paper-cup-manufactures-association-v-36695
- **Pages:** 24

## Headnote

Issue for consideration: Whether the High Court was justifi ed in
dismissing the writ petitions fi led 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 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 - By composition itself, plastic coated teacups are nonbiodegradable, and there is immense diffi culty in their recycling, as it requires
appropriate collecting mechanisms, strict segregation - 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 no reason for interference with the High Court's fi ndings 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
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
1135
SCR 437; Karnataka SRTC v. S.G. Kotturappa (2005)

## Text

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[2023] 14 S.C.R. 1133 : 2023 INSC 952
1133
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 justifi ed in
dismissing the writ petitions fi led 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 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 - By composition itself, plastic coated teacups are nonbiodegradable, and there is immense diffi culty in their recycling, as it requires
appropriate collecting mechanisms, strict segregation - 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 no reason for interference with the High Court's fi ndings 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
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
1135
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 fi nally, with the consent of the parties.
The appellants are aggrieved by a common judgment1 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').
TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES
ASSOCIATION v. STATE OF TAMIL NADU
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 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" - which 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-woven 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 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 Notifi cation.
3
See Explanation 5 for defi nition.
4
During the pendency of litigation, there have been further amendments 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 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).
1137
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 nonbiodegradable, but recyclable. However, due to insuffi 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 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: fi rstly, 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 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 rejected on
similar grounds on 08.12.20185 through a clarifi cation issued by TNPCB
and a further detailed clarifi cation 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
Notifi cation 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 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. RAVINDRA BHAT, J.]
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: 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 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 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 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 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 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.
1139
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 infi ltration 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
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 material11
and this could not be gone into in the writ petitions fi led 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 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 created 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. RAVINDRA BHAT, J.]
1140
SUPREME COURT REPORTS
[2023] 14 S.C.R.
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 plastic 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 characteristics 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 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].
1141
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 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 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 fi bres similar to polyester fi laments 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 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 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.), 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. RAVINDRA BHAT, J.]
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 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 polypropylene 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 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
1143
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 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 Government 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 authorities 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 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 aff ected before the ban.
24. Counsel argued also on the absence of data to establish that nonwoven 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 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
TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES
ASSOCIATION v. STATE OF TAMIL NADU [S. RAVINDRA BHAT, J.]
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 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 - 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 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 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.
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 representation 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 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 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 which 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 CO2,
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. RAVINDRA BHAT, J.]
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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 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 litter 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 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.
1147
By Notifi cation 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 Notifi cation 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, 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 regulation
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 the proposed
direction referred to in sub-rule (3b) above for the 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. RAVINDRA BHAT, J.]
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[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, 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 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 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 registered 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 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 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 person 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 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 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, 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:
TAMIL NADU AND PUDUCHERRY PAPER CUP MANUFACTURES
ASSOCIATION v. STATE OF TAMIL NADU [S. RAVINDRA BHAT, J.]
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[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 eff ect.
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.