Nirmal Kumar Sah And Others vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

A Writ Petition (PIL) No. 31 of 2012 'Prof. Ajay Singh Rawat vs. Union of India & Others' came up for consideration before the Division Bench of this Court, wherein, the Division Bench of this Court has passed an order to the following effect:

"Mr. V.B.S. Negi, Addl. Advocate General for State of Uttarakhand further submits that Division Commissioner shall ensure total ban on the polythene bags within the territory of District Nainital. He further contends that recovery of fine of Rs.500/- from those shopkeepers from whose shops thousands of polythene bags are recovered, is not sufficient, therefore, fine of Rs.500/- on each and every polythene bag shall be recovered from the guilty shopkeeper(s)."

In a nutshell and as intended by the order, it provided that a recovery of penalty on use and storage of polythene bag at the rate of an amount of Rs.500 was to be imposed as penalty for each polythene bag, which has to be levied as a penalty on the guilty shopkeepers.

In the instant case in furtherance of the judgment rendered by the Division Bench a surprise raid was conducted on 3.03.2017 in the shops of the petitioners, wherein, 370 polythenes in relation to the writ petitioner of Writ Petition No. 1735 of 2017, 157 polythenes in relation to the writ petitioner of Writ Petition No. 1732 of 2017, 84 polythenes in relation to the writ petitioner of Writ Petition No. 1761 of 2017 and 176 polythenes in relation to the writ petitioner of Writ Petition No. 1762 of 2017, was recovered by the respondent Nagar Palika from their custody, when they have conducted the surprise raid in their shops. So far as the recovery of number of bags is concerned, and the number of bags which has been recovered from the respective shops is concerned, it is not disputed by the petitioners of each of the writ petitions.

The petitioners rather submit that they would not be liable to pay the amount sought to be recovered by the impugned recovery citation, which is Rs.1,85,000/- dated 13.07.2017 in Writ Petition No. 1735 of 2017; Rs.78,525/- dated 13.07.2017 in Writ Petition No. 1732 of 2017; Rs.42,025/- dated 13.07.2017 in Writ Petition No. 1761 of 2017; and Rs.88,025/- dated 13.07.2017 in Writ Petition No. 1762 of 2017 respectively. They submit that the said amount would not be recoverable from them on account of the fact that in pursuance to the Government Order, which has been issued by the State on 11.01.2017, after the judgment rendered by the Division Bench in WPPIL 140 of 2015 'Lalit Miglani vs. State of Uttarakhand', the State Government vide its Government Order No. 48/x-3-17-13(11)/2001 dated 11.01.2017, it had provided that, in case if the directions as issued in the PIL is not complied with, in such an eventuality, the penalty would be imposed at the rate as determined therein subject to maximum limit of Rs.5,000/- as referred in clause-3, which reads as under:

"विषयः- माननीय उच्च न्यायालय नैनीताल में योजित रिट पिटिशन संख्या-140/2015 ललित मिगलानी बनाम उत्तराखण्ड राज्यादि में मा0 न्यायालय द्वारा पारित आदेशों का अनुपालन किये जाने के संबंध में।

उपरोक्त आदेशों की अवहेलना करने पर संबंधित से Rs.5000/- का अर्थ दण्ड वसूला जायेगा।"

Learned counsel for the petitioners further submits that they would not be liable to pay any amount beyond the limit prescribed by clause 3, which has been fixed by clause-3 of the said Government Order and thus, the imposition, which has been made by the impugned recovery citation is contrary to the guidelines which has been issued by the Government Order dated 11.01.2017. It would be appropriate to mention at this stage itself that the direction to levy a penalty of at the rate of Rs.500/- on the recovery of each polythene bag from the shopkeeper had been imposed in pursuance to the direction, which has been issued in WPPIL No. 31 of 2012, whereas the Government Order on which the reliance has been placed by the petitioner has been issued on the basis of the direction, which is said to have been issued in the WPPIL No. 140 of 2015 'Lalit Miglani vs. State of Uttarakhand & Others'. The order passed in the PIL was dated 20.12.2016 as per the pleadings raised in the writ petition the impugned action taken against the petitioner it is not foundationed on the said direction and even as per the observation, which has been made in the direction issued on 20.12.2016, it had stipulated that there would be a complete ban on the sale, use and storage of the plastic carry bag, through out the State, w.e.f. 01.01.2017 and no person shall be permitted to bring the carry bag to the State of Uttarakhand by means of transport, buses or air services.

Thus, the argument of learned counsel for the petitioners that the said restriction of use, storage and stocking of polybags, would only be confined for District Nainital it absolutely runs contrary to his own arguments, which is based on the implications, which were flowing from the Government Order dated 11.01.2017. Even the directives of imposing a complete ban on the use of polythenes, which was rendered in WPPIL No. 140 of 2015 though it might have fixed up the limit in its clause 3, the same would not be applicable herein, for the reason that in the earlier WPPIL No. 31 of 2012 the direction has already been issued much prior in time on 14.12.2014, wherein, the rate of penalty was specified therein. Even in the subsequent WPPIL No. 140 of 2015, where a complete ban has been imposed on the use of polythene bags has not made any observation pertaining to the rates of penalty, which was only fixed by the WPPIl No. 31 of 2012 'Prof. Ajay Singh Rawat vs. Union of India & Others'.

Since the condition of imposing of the penalty on the user of the polythene bags was being imposed as a deterrent against the users of the polythene, and it is in the wider public interest to safeguard the ecology of the State, which was the prime concern, this Court is of the view that since the imposition of the rate of fine was imposed by the Division Bench in its judgment dated 04.12.2014, which was being prior in time and which remain undisturbed by any subsequent orders passed by this Court, the Government Order on which the reliance has been particularly in relation to clause 3 will not have any over riding effect on the ratio laid down by the Division Bench of this Court in WPPIL No. 31 of 2012 'Prof. Ajay Singh Rawat vs. Union of India & Others'.

Thus, since the rates as specified therein by the judgment remained undisturbed, the imposition of penalty and which is being sought to be recovered from the petitioners as the same was confiscated, when there was a surprise raid was conducted by the respondent to their respective establishments. This Court is of the view that since the imposition of penalty was as a measure of deterrent and it was in a wider public interest based on the Division Bench's judgment of this Court, which holds to be valid that will prevail over clause-3 of the Government Order dated 11.01.2017, which was levied on the basis of the subsequent orders passed in the PIL, which too has not been disturbed the rate of penalty by any subsequent judgment or by judgment by the superior court. Hence, the imposition of penalty as sought to be recovered in pursuance to the impugned citation commensurates to the number of polythene bags, which were recovered from the respective shops of the petitioners.

As such, this Court does not find any error in the action taken by the respondent to recover the penalty from the petitioners for the user and confiscation of the polythene in contravention of the direction/judgment issued by the Division Bench of this Court, which was made applicable through out the State of Uttarakhand.

In that view of the matter, this Court does not find any merit in the writ petition and rather the imposition of penalty goes in the light of the direction issued by the Division Bench in the PIL. Hence, no interference is called for and the writ petition is, accordingly, dismissed.

However, there would be no order as to cost.