Whether it is permissible to charge consumers for plastic bags?

So far as the contention of the petitioner that the corporates are charging the consumers for the bags is concerned, this argument has no substance as the corporates or the shop owners or the dealers in various commodities are giving an option to the consumers as to whether they want to purchase plastic bag or not. If the consumer wants to purchase the bag only then he is provided with the bag wherein he can keep his goods purchased by him. Otherwise, there are no charges levied on the consumer by the corporates or shop owners. Since it is optional, it is always open to the consumer not to buy carrybag made of 40 microns plastic. For the aforesaid reasons, the writ petitions lack merit and are dismissed accordingly.

IN THE HIGH COURT OF GUJARAT

Writ Petition (PIL) Nos. 274 and 244 of 2012

Decided On: 14.11.2014

Appellants: Consumer Education and Research Society 
Vs.
Respondent: Municipal Commissioner and Ors.

Hon'ble Judges/Coram:V.M. Sahai, Actg. C.J. and R.P. Dholaria, J.

 Citation: AIR2015Guj54

1. Both these petitions have been filed in the nature of public interest challenging the charging of bags by the Municipal Corporation in absence of any Notification and further direction to the corporates not to charge the consumers for plastic bags or paper bags and not to use plastic bags. A further relief is sought to implement Notification dated 4.2.2011. In writ petition No. 244 of 2012, in the affidavit of the State Government, at page 51, in paragraph Nos. 3 to 9, it has been stated that the State Government has taken action in compliance of Notification dated 4.2.2011, to curb and curtail menaces of use of plastic bags and wastes are collected from door to door. Under the project "Nirmal Gujarat", use of plastic bags which are thinner than 40 microns is banned. The Notification and Plastic Bag Waste (Management and Handling) Rules, 2011, are strictly being followed by the respondents.

2. In writ petition No. 274 of 2012, an affidavit has been filed by the Ahmedabad Municipal Corporation wherein at paragraph Nos. 3 to 8, it has been stated as under:

"3.--I humbly say first contention by the petitioner against the Ahmedabad Municipal Corporation (hereinafter referred to as "the Corporation" for short) is with regard to issue of resolution. It has been contended by the petitioner that after issuance of resolution by the Corporation for a period from 1.1.2012 to 31.3.2012 there has been no further resolution with regard to the plastic bags. I humbly say that the standing committee for the first time came with the resolution dated 25.10.2011 with regard to implementation of Plastic Waste (Management and Handling) Rules, 2011 (hereinafter referred to as 'the Rules') for a period from 1.1.2012 to 31.3.2012. The said resolution was sent for approval of the Corporation and the Corporation on 24.11.2011 approved the same. I further say that thereafter on 26.12.2012 the Standing Committee passed the resolution for implementation of the Rules with assumption that the said Rules would be approved by the State Government. The Standing Committee thereafter send the said resolution dated 26.12.2012 for approval of the Corporation. The Corporation approved the same on 3.1.2013. Therefore, the contention and the apprehension of the petitioner would not be sustained that there are no resolution for implementation of the Rules after 31.3.2012. I say that the Corporation has communicated to the State Government on 28.8.2012 and 23.1.2013 that pursuant to the notification dated 4.2.2011 the Corporation wants to frame bye-laws and therefore necessary permission may be given. However, till today the Corporation is awaiting permission from the State Government for framing of the bye-laws.

4. I humbly say that it is further contended by the petitioner that compost table plastic which is less than 40 microns in thickness are sold in open market and further the Corporation has wrongly allowed the retailers collect amount on plastic bags of less than 40 microns. I say that the Government of India by notification dated 4.2.2011 declared the Rules which were to be operated across all the States of India and which is annexed at Annexure-A of the petition. As per condition (5)(c) it was specified that no carrybag which is less than 40 microns should be sold or distributed. For ready reference clause (5)(c) is reproduced hereinbelow:

"5. Conditions:

...........

(c) No person shall manufacture, stock, distribute or sell any carrybag made of virgin or recycled or compostable plastic, which is less than 40 microns in thickness"

Further it was made clear by Rule 10 that no carrybags shall be made available free of cost by retailers to consumers. For ready reference Rule 10 is reproduced hereinbelow:

"10. Explicit pricing of carry bags

No carrybags shall be made available free of cost by retailers to consumers. The concerned municipal authority may by notification determine the minimum price for carry-bags depending upon their quality and size which covers their material and waste management costs in order to encourage their reuse so as to minimize plastic waste generation.'

Thus, it was made clear by the Rules that no plastic bag which is less than 40 microns should be made available in the market and the plastic bags which are made available in the market should not be free of cost and the concerned municipal authority may determine the minimum price for the same. Pursuant to such rules, the retailers in Ahmedabad have begun to charge certain amount depending on the size of the bag. Thus, the amount charged on the plastic bags are as per the Rule specified by the Union Government. Therefore, the Corporation have made legal provision for charging the plastic bags. The same legal provisions were published in daily newspaper.

5. I further say that it has been alleged by the petitioner that certain retailers are selling plastic bags which is less than 40 microns in the open market. I say that the Corporation has often carried out inspection and seized those plastic bags which are less than 40 microns and sold in open market.

6. I further say that the Corporation has also sealed certain units which were producing bags which were less than 40 microns.

7. I say that it is further contended by the petitioner that the condition that the carrybag shall be either in natural shade, colourless without any pigments, and with Indian Standards IS-9833:1981 is not followed by the manufacturers. However, I would like to clarify that the said conditions is with regard to bags for using plastics in contact with food stuffs, pharmaceuticals and drinking water. Copy of relevant condition 5(a) is reproduced hereinbelow:

"5(a) carrybags shall either be while (sic) or made using only those pigments and colourants which are in conformity with Indian Standard: IS 9833:1981 titled as List of Pigments and colourants for use in plastics in contact with food stuffs, pharmaceuticals and drinking water, as amended from time to time."

Pursuant to such condition the Corporation have put three officers in every zone for verification of the same and if there is non-implementation of the said clause, said rule then the bags are seized or units are sealed.

8. I say that the above mentioned fact clarifies that the Corporation has taken all necessary steps for implementing of all the conditions of the notification published by the Ministry of Environment and Forest dated 4.2.2011. However, the Corporation is still awaiting permission from the State Government for implementation of bye-laws. Thus, the prayers against the Corporation are baseless and devoid of any merits."

3. In view above, Ahmedabad Municipal Corporation is complying with the statutory provisions.

4. So far as the contention of the petitioner that the corporates are charging the consumers for the bags is concerned, this argument has no substance as the corporates or the shop owners or the dealers in various commodities are giving an option to the consumers as to whether they want to purchase plastic bag or not. If the consumer wants to purchase the bag only then he is provided with the bag wherein he can keep his goods purchased by him. Otherwise, there are no charges levied on the consumer by the corporates or shop owners. Since it is optional, it is always open to the consumer not to buy carrybag made of 40 microns plastic. For the aforesaid reasons, the writ petitions lack merit and are dismissed accordingly.