$~22.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 5643/2022
CEMENT MANUFACTURERS ASSOCIATION & ORS.
..... Petitioner
Through: Mr. P. Chidambaram & Mr. Darpan
Wadhwa, Sr. Advocates with Mr.Ajay
Bhargava, Ms. Vanita Bhargava, Mr.
Rahul Sahay, Mr. Arvind Ray, Ms.
Prerna Singh and Mr. Shantanu
Chaturvedi, Advocates.
versus

UNION OF INDIA & ANR. ..... Respondent

Through: Mr. Sanjay Jain, ASG with Ms. Nidhi
Raman, CGSC, Mr. Zubin Singh,
Advocates, Mr. Amit Love, Scientist
and Ms. Sadhna Mishra, Asso. Legal
for R-1.
Mr. Sanjay Jain, ASG, Mr. Balendu
Shekhar, Adv. with Mr. Krishna
Chaitanya, Advocate for Respondent
No.2.
Mr. Kamal Bandhu, ALO, CPLB.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
ORDER
% 25.05.2023
W.P.(C) 5643/2022 & C.M. APPL. 54791/2022
Admit.
List in due course.
The matter be treated as part-heard.

Signature Not Verified

Digitally Signed By:HARIOM
SINGH KIRMOLIYA
W.P.(C) 5643/2022 Page 1 of 6
Signing Date:01.06.2023
17:42:44
 C.M. APPL. 52690/2022
1. W.P.(C) 5643/2022 has been filed by the Petitioners challenging the
Guidelines on Extended Producer Responsibility (hereinafter referred to as
“the EPR Guidelines”) for Plastic Packaging inserted in Schedule II of the
Plastic Waste Management (Amendment) Rules, 2022 issued by the
Ministry of Environment, Forest and Climate Change vide notification dated
16.02.2022, as manifestly arbitrary and violative of Article 14 and Article
19(1) (g) of the Constitution of India qua the cement industry. The
Petitioners have also sought for an appropriate writ/order/direction for
quashing the Standard Operating Procedure (hereinafter referred to as “the
SOP”) for Registration of Producer, Importer and Brand Owners
(hereinafter referred to as “the PIBOs”) through Plastic EPR Portal as per
Plastic Waste Management Rules, 2016 (hereinafter referred to as “the
PWM Rules 2016”) issued by the Central Polution Control Board (hereafter,
“CPCB”) on 15.03.2022.
2. Petitioner No.1 is Cement Manufacturer’s Association.
3. It is the primary contention of the Petitioner that Para 14 of the
impugned EPR Guidelines lay down the primary responsibility for collection
and disposal of plastic waste has been put on the PIBOs whereas, to the
contrary, Rule 6 & 7 of the PWM Rules 2016 cast the responsibility for
development and setting up of infrastructure for segregation, collection,
storage, transportation, processing and disposal of the plastic waste on the
Urban Local Bodies and Municipal Corporations. It is the primary
submission of the Petitioners that it will be impossible for the cement
manufacturers to segregate the used multi-layered sachets or pouches or

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Digitally Signed By:HARIOM
SINGH KIRMOLIYA
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 packaging and, therefore, the said Rule is manifestly arbitrary. It is further
contended by the Petitioners that it is not possible for PIBOs to fulfil the
responsibility cast upon them under Clause 8.3 of the EPR guidelines which
states that PIBOs can meet their Extended Producer Responsibility
obligations under a category by purchasing surplus EPR certificates from
other PIBOs of the same category since the said certificates are not available
on the EPR Portal. The thrust of the Petitioners’ argument, therefore, is that
since it is impossible for the producer to initially segregate plastic waste and
these certificates are also not available, the obligation which has been cast
upon them is impossible to perform and, therefore, the EPR Guidelines
should be stayed.
4. Per contra, Mr. Sanjay Jain, learned ASG appearing for Union of
India, contends that the EPR Guidelines are being challenged only by
cement manufacturers and not any other industry. It is further stated that
there are about 41 Members in the Petitioner No.1/Association and only 24
Members have registered themselves as PIBOs on the Centralized EPR
portal for plastic packaging. He further contends that the obligation on the
PIBOs as defined in Clause 4 of the EPR Guidelines for plastic packaging
does not mandate any task to be performed by the PIBOs. He states that the
mandate of the EPR Guidelines is not that PIBOs must physically collect
and segregate the plastic waste nor do the rules require them to collect the
packaging waste in which the products of the PIBOs are packed. He submits
that there is provision of purchase of certificates that exempt physical
collection and segregation and contrary to the Petitioners’ submissions,
adequate certificates are available on the EPR portal and purchase of those
certificates by PIBOs is sufficient to meet the extant obligations. Mr. Jain

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Digitally Signed By:HARIOM
SINGH KIRMOLIYA
W.P.(C) 5643/2022 Page 3 of 6
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 submits that the obligation of 24 members is only 82,600 tonnes whereas
certificates worth 1,30,805 tonnes are available on the EPR Portal. He has
handed-over a snapshot in the Court showing the availability of certificates
on the Portal. It is stated that in view of the fact that a variety of options are
available to the PIBOs to meet their EPR obligations, the same are not
erroneous and not impossible to be performed and, therefore, the Guidelines
need not be stayed. It is imperative to advert to the note submitted by the
learned ASG, which reads as under:
“1.24 out of 41 CMA members are already registered
as PIBOS on the Centralized EPR portal for Plastic
Packaging. [eprplastic.cpcb.gov.in]

2. 25 out of 41 total CMA members are already

registered PWPs on the Centralized EPR portal for
Plastic Packaging with a processing capacity of 101
lakh tonnes per annum, as on 25.05.2023.

3. EPR target of the said registered 24 CMA members

for the year 2022-2023 is 82,660 tonnes [Category II
Plastic Packaging]

4. EPR certificates for Category II Plastic Packaging

available on EPR portal as on 25.05.2023 is 1,30,805
tonnes. In addition, the Petitioner Association can
themselves generate the EPR certificates being PWPs.

5. The registered 24 CMA members are required to

fulfill the EPR target of 82,600 tonnes by 31.10.2023
as per 6th Amendment to Plastic Waste Management
Rules, 2016 vide Notification dated 27.04.2023 issued
by MOEFCC.

6. The presently 17 unregistered entities will have their

target fixed based on the average of 2021-22 and

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Digitally Signed By:HARIOM
SINGH KIRMOLIYA
W.P.(C) 5643/2022 Page 4 of 6
Signing Date:01.06.2023
17:42:44
 2022-23 which they can meet by 30.06.2024.

7. Rule 9 of PWM Rules, 2016 has been replaced by

the EPR guidelines dated 06.07.2022 specified in
Schedule II by Clause 4 which categorically states that
PIBOS shall fulfill EPR obligation as per new the
guidelines specified in Schedule II.

8. Even as on today. PWPS of Cement Manufacturers

are generating Category II EPR certificates also, thus,
enabling them to utilize the same to meet their EPR
obligations.

9. But for the present challenge, all members of this

Association would have been before NGT and be
paying Polluter Pays Principle based compensation,
just like other polluters are paying, which none of them
had paid since 2016.

10. The averment in the Petition to the effect that

Cement Industry PWPs cannot generate EPR
certificates for Category 11 plastic waste is wrong
because as per Clause 13.4 of the EPR Guidelines
under challenge, it is clearly provided that "State
Pollution Control Board or Pollution Control
Committee shall carry out a compositional survey of
collected mixed municipal waste to determine the share
of plastic waste as well as different categories of
plastic packaging material on a half-yearly basis". It
essentially means that even if one burns mixed plastic
waste, based on the component of Category I waste,
EPR certificates pertaining to Category II plastic
waste can be generated. Dalmia Cements and
Chettinad Cements are already generating EPR
certificates pertaining to Category II Plastic
Packaging Waste.”

5. The 17 manufacturers who are not registered are directed to register

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SINGH KIRMOLIYA
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 themselves forthwith and perform their obligations as is required under the
notification.
6. It is well settled that the Courts lean in favour of presumption of
constitutionality of legislation and unless it is shown that the legislation is
manifestly arbitrary or that they take away any of the rights conferred in
Part-III of the Constitution or the parent statute, the Courts do not stay the
operation of such a statute.
7. In view of the fact that there are adequate options available enabling
the PIBOs to meet their obligations, this Court is not inclined to stay the
operation of EPR Guidelines. This Court is also fortified by an Order dated
09.01.2023, passed by the High Court of Uttarakhad at Nainital in
W.P.PIL/93/2022 titled as Jitendra Yadav v. Union of India and Ors.,
wherein the High Court of Uttarakhand has also not stayed the operation of
the very same guidelines which are sought to be challenged in the present
Petition.
8. In view of the above, this Court is not inclined to pass any interim
directions in favour of the Petitioner.
9. Accordingly, the application is dismissed.

SATISH CHANDRA SHARMA, CJ

SUBRAMONIUM PRASAD, J
MAY 25, 2023
Rahul

Signature Not Verified

Digitally Signed By:HARIOM
SINGH KIRMOLIYA
W.P.(C) 5643/2022 Page 6 of 6
Signing Date:01.06.2023
17:42:44