N. NAGARESH, J.

1. Petitioners in W.P.(C) No.23089/2022 are members of registered association of the manufacturers of non-woven bags in Kerala. The petitioner in W.P.(C) No.24165/2022 is a Proprietor engaged in the production of non-woven bags. The petitioners are before this Court aggrieved by GO (MS) dated 17.12.2019 and GO (MS) dated 27.01.2020 whereby the 2nd respondent has included the non-woven bags in the list of prohibited items.

2. According to the petitioners, non-woven bags are manufactured using food grade granules. Non-woven bag is a food grade item approved by many Government agencies and recognised by the Ministry of Textiles. The petitioners are manufacturing non-woven bags out of Polypropylene and Calcium Carbonate. Polypropylene is a food grade granule and Calcium Carbonate is a natural product and 100% biodegradable under natural process.

3. The petitioners state that the Government as per GO dated 12.12.2018 constituted an Expert Committee to study and report on the usage of plastic in Kerala. The Expert Committee reported that plastic litter alone is the pollution problem. The report mentioned the Polypropylene bags as product proposed to be regulated with return deposit refund scheme. The Expert Committee has reported that the non-woven fabric is made from fibre grade textile polymers and propylene and that non-woven fabrics are 100% usable and reusable.

4. The petitioners state that the Government of India, in exercise of its powers under the Environment (Protection) Act, 1986, has formulated the Plastic Waste Management Rules, 2016. The Rules provide that non-woven plastic carry bags shall not be less than 60 gram per square metre (GSM) with effect from 30.09.2021. The notification further directed that the manufacture, import, stocking, distribution, sale and use of single use plastic including polystyrene and expanded polystyrene commodity shall be prohibited with effect from 01.07.2022.

5. The petitioners state that on the basis of the Plastic Waste Management Rules, 2016, many State Pollution Control Boards have prohibited production, stocking, distribution, sale and use of single use plastic items but, permitted manufacturing of carry bags made of virgin or recyclable plastic above 75 micron in thickness. Non-woven carry bags less than 60 GSM alone are prohibited. The State of Kerala, however, issued a letter dated 24.06.2022 banning single use plastic products inlcluded in the list of banned single use plastic products. The non-woven bags were included as serial No.2 in the list. By not making any distinction based on GSM of non-woven bags, the Kerala State has banned all non-woven bags.

6. The petitioners state that the Sub Committee of Single Window Clearance Board held on 05.03.2019 has granted sanction to manufacture of non-woven carry bags to M/s.K.V. Green Bags in Pathanamthitta District. A report of School for Advanced Research in Polymers (SARP), Department of Chemicals and Petrochemicals under the Government of India has given its opinion that Polypropylene fibre of 60 GSM can be used multiple times and are recyclable at the end of their use. Therefore, the complete ban on the manufacture of non-woven bags as per letter dated 24.06.2022 of the Kerala State Pollution Control Board is illegal and unsustainable.

7. The counsel for the petitioners argued that State Rules were already in place when Central Government made the 60 GSM rule. Under Section 23 of the Environment Protection Act, the Central Government can delegate its powers to a limited extent. A combined reading of Sections 5 and 23 of the Act would show that the State Government has only residuary powers. The Act contemplates regulation alone and there cannot be a complete ban.

8. The counsel for the petitioners submitted that the ban should be only on non-biodegradable woven bags. There is inconsistency between the Central Rules and State Regulations. In view of Article 254(1) of the Constitution, the Central Rules shall prevail. The counsel for the petitioners further argued that the complete ban of non-woven bags violates the fundamental right of the petitioners under Articles 19 and 21 of the Constitution of India. As the Single Window Clearance Board has cleared one project of manufacturing of non-woven bags, the petitioners have a legitimate expectation that same treatment will be extended to all. Forty five (45) manufacturers of non-woven bags in Kerala have agreed to re-process the bags under the “Extended Producer Responsibility (EPR) principle. The orders impugned in the writ petitions are therefore liable to be quashed.

9. The 3rd respondent-Pollution Control Board filed a counter affidavit and opposed the writ petitions. The 3rd respondent stated that the communication dated 24.06.2022 of the Kerala State Pollution Control Board was issued in view of the Orders dated 17.12.2019 and 27.01.2020 issued by the Government of Kerala. The Government had initially issued GO dated 27.11.2019 banning single use plastic bags in the State of Kerala. Non-woven plastic bags were included in the said GO dated 27.11.2019. In the GO dated 17.12.2019 also, ban on the non-woven bags continued. Subsequently, Government Order dated 27.01.2020 was issued. Non-woven plastic bags were included in the GO dated 27.01.2020 also. The State Board being the implementing agency as per Government Orders, the Board is bound to issue direction in tune with the Government Orders. The order dated 24.06.2022 of the Pollution Control Board is therefore legal and proper.

10. The State of Kerala filed a statement dated01.09.2022 in W.P.(C) No.24165/2022. The State of Kerala submitted that the GO dated 17.12.2019 was issued in exercise of the powers conferred on the State Government under Section 23 read with Section 5 of the Environment Protection Act, 1986. The Central Government under Section 5 is empowered to issue directions including prohibition or regulation of any industry or manufacturing activity. Section 23 enables the Central Government to delegate its powers to the State Government. The orders impugned cannot be found fault with as the State Government has ample power. Exercise of power by the State Government is intended to address regulatory vacuum or to meet exigencies. As the GO dated 17.12.2019 having promulgated prior to the notification dated 12.08.2021, it cannot be rendered illegal on the ground of having a different content.

11. The Government Pleader pointed out that the Government Order which can be traced to Section 5 of the Act and the amendments made to the Rule, are on two different planes. No doubt that the power to make Rules cannot be delegated by invoking Section 23 and the power delgated should also be in consonance with the other provisions of the Act. Here, by way of amendment, the Central Government has prohibited the use of non-woven plastic bags below 60 GSM. If the Government Order was issued permitting the usage of non-woven plastic bags below 60 GSM, it cannot be sustained in view of the new amendment. But here, the Government Order is not in contradiction to the amended Rule. There is no question of any repugnancy.

12. Prohibiting non-woven plastic bags below 60 GSM by the Rule will not preclude the State Governments to whom the power under Section 5 has been delegated from invoking authority/powers under the Act, considering the facts and circumstances prevailing in each State. It is clear that the amendment was not issued in supersession of any of the Government Orders passed by various State Governments invoking the powers under Section 5. Needles to point out that the Central Government while amending the Rules was well aware of the fact that the State Governments have exercised their delegated power under Section 5.

13. Exts.P8 and P9 Government Orders are issued invoking the powers under Section 5 relying on various empirical data, scientific studies and considering various other relevant facts, asserted the Government Pleader.

14. Entry 6 of List II is public health. So the State Government has power to issue Exts.P8 and P9 Government Orders under Article 162 of the Constitution. Moreover, the contentions of the petitioner that their fundamental rights are infringed, cannot be sustained. The Government Order operates not on individual but on the industry. The averments to the effect that the rights under Article 19 of the Constitution are breached are absolutely incorrect since the State Government has a larger obligation under Article 21 and all the fundamental rights of the petitioners should bow down before the public interest.

15. The Government Pleader further urged that it is not a case where the rigour of the Central Rule has been diluted. It is open to the State to decide on the extent of rigour that must be attached to the situations of the like nature. It is open to the State to introduce a higher degree of rigour while dealing with environmental pollution and the same does not in any manner abridge on any of the fundamental freedoms of the petitioner.

16. I have heard the learned counsel for the petitioners in W.P.(C) No.23089/2022 and W.P.(C) No.24165/2022, the learned Government Pleader representing the State of Kerala, the learned Standing Counsel appearing for the Pollution Control Board and the learned Deputy Solicitor General of India representing the Union of India.

17. The petitioners challenge the ban on non-woven bags without regard to the parameter of GSM, brought into effect by the State of Kerala and the Kerala State Pollution Control Board, on the following grounds:

(1) The Central Government has amended the Plastic Waste Management Rules, 2016 as per Notification No.GSR 571 (E) dated 12.08.2021 providing that non-woven plastic carry bags shall not be less than 60 GSM with effect from 30.09.2021. Consequently, the petitioners are legally entitled to manufacture and sell non-woven plastic carry bags of 60 GSM and above.

(2) The State Government on the basis of its delegated powers cannot prescribe a standard higher than the one prescribed by the Government of India in exercise of powers conferred by Sections 6, 8 and 25 of Environment (Protection) Act, 1986.

(3) The Circular No.PCB/HO/SEE-2/SUP/MOEF/2021 dated 24.06.2022 issued by the Kerala State Pollution Control Board by which non-woven bags are included in the list of banned single use plastic products is illegal.

(4) When various State Governments have permitted manufacture and sale of non-woven bags of 60 GSM and above, the industries in Kerala alone cannot be subjected to discrimination in the matter.

(5) The fundamental rights of the petitioners guaranteed under Articles 19 and 21 stand violated in view of the absolute ban imposed on manufacture of non-woven bags.

18. The Environment (Protection) Act, 1986 is enacted to provide for the protection and improvement of environment. Section 5 of the Act, 1986 empowers the Central Government to issue directions in writing to any person or officer or any authority and that such person, officer or authority shall be bound to comply with such direction.

19. Section 23 provides that the Central Government may, by notification in the official gazette, delegate, subject to such conditions and limitations as may be specified in the notification, such of its powers and functions under the Act except the power to constitute an authority under Section 3(3) and to make rules under Section 25. It is therefore evident that while delegation by the Central Government is permissible, the rule making power under Section 25 is conferred on the Central Government alone.

20. In exercise of the powers under Section 25, the Government of India has framed the Environment (Protection) Rules, 1986. Rule 3 of the Rules, 1986 provides that for the purpose of protecting and improving the quality of the environment and preventing and abating environmental pollution, the standards for emission or discharge of environmental pollutants from the industries, operations or processes shall be as specified in Schedules I to IV. Rule 3(3A)(i) provides that emission or discharge of environmental pollutants from the industries, operations or processes shall not exceed the relevant parameters and standards specified in Schedule VI. The Rule, however, provides that the State Boards may specify more stringent standards for the relevant parameters with respect to specific industry or locations after recording reasons therefor in writing.

21. The State of Kerala taking note of the increased use of plastic materials and environmental pollution resulting from the unregulated use of plastic materials issued GO (MS) No.6/2019/Envt dated 27.11.2019 whereunder manufacturing, transportation and sale of single use non- woven bags were banned. The said GO dated 27.11.2019 was issued based on an Expert Technical Committee report.

22. On 17.12.2019, the Government of Kerala issued GO (MS) No.7/2019/Envt observing that despite of all its efforts, there is no respite to the uncontrolled usage of single use plastic. The Government of Kerala therefore imposed a complete ban on the manufacture, storage, transport and sale of 11 items/materials including non-woven bags. The complete ban was to be effective from 01.01.2022. The said GO dated 17.12.2019 also did not make any distinction on the basis of GSM standard.

23. The GO dated 17.12.2019 was followed by GO (MS) No.2/2020/Envt dated 27.01.2020 whereby the Government further clarified the banned items. The GO dated 27.01.2020 recommended to use alternative non- plastic / eco-friendly materials as a substitute for the banned single use plastic items. In the GO dated 27.01.2020, non- woven bags were recommended to be substituted by cloth, paper bags.

24. The petitioners have a specific case that the non- woven bags manufactured by the petitioners using Polypropylene and Calcium Carbonate are biodegradable under natural process. Analysis report dated 04.03.2021 of the CIPET: School for Advanced Research in Polymers (SARP) under the Department of Chemicals and Petrochemicals, Ministry of Chemicals and Fertilisers, Government of India states that non-woven bags of 60 GSM withstands the cycle load and has opined that the non-woven carry bags made of Polypropylene fibre of 60 GSM can be recycled after end of the use. The Government of India therefore amended the Plastic Waste Management Rules, 2016 by Notification No.GSR 571(E) dated 12.08.2021 by which non-woven plastic carry bags less than 60 GSM alone were banned. The amendment dated 12.08.2021 also made it clear that the ban shall not apply to commodities made of compostable plastic. The counsel for the petitioners would urge that the non-woven bags manufactured by them are compostable.

25. Be that as it may, going by Section 23 of the Act, 1986, it is evident that though the Central Government is competent to delegate its powers and functions under the Act, 1986, the rule making power of the Central Government cannot be delegated. When, in exercise of the rule making powers under Section 25, the Central Government has prescribed minimum standard in GSM for manufacturing of non-woven bags, then under any delegated power the State Government cannot prescribe a different standard which would negate the rules framed by the Central Government. If any State Government issues executive instructions contrary to the Rules framed by the Central Government, it would amount to exercise of powers which the Act, 1986 has prohibited to delegate.

26. It may be noted that many State Government including Odisha, Puducherry, Haryana, Delhi, etc. have issued orders banning single use plastic but such ban does not extend to non-woven bags of 60 GSM and above. Therefore, the total prohibition of manufacturing of non- woven bags irrespective of the GSM standard of the bags in Kerala, would be discriminatory also.

27. It is true that proviso to Rule 3(3A)(i) of the Rules, 1986 provides that the State Boards may specify more stringent standards for the relevant parameters with respect to specific industry or location after recording reasons therefor in writing. This is a power given by the Rules to State Boards alone. Circular dated 24.06.2022 issued by the Chairman of the Kerala State Pollution Control Board does not specify any reason for imposing a more stringent standard in the matter of non-woven bags. The Kerala State Pollution Control Board has issued the Circular dated 24.06.2022 solely based on GOs dated 17.12.2019 and 27.01.2020. In the absence of sufficient reasons to prescribe a more stringent standard for non-woven bags, the Circular dated 24.06.2022 cannot stand the scrutiny of law.

28. In the facts and circumstances of the case, I find that inclusion of non-woven bags in the list of banned single use plastic items by Government Orders without regard to the GSM standards and in violation of the provisions of the Plastic Waste Management Rules, 2016 is highly illegal and arbitrary. Consequently, the Government Orders dated 27.11.2019 and 17.12.2019 as also the Circular dated 27.01.2020 of the Kerala State Pollution Control Board are set aside to the extent they ban manufacture, transportation, sale and use of non-woven bags of 60 GSM and above. The eligibility of the petitioners to manufacture non-woven bags shall be governed by the Plastic Waste Management Rules, 2016 as amended by the Plastic Waste Management (Amendment) Rules, 2021.

29. The writ petitions are disposed of as above.