THE KERALA NON-BIODEGRADABLE GARBAGE (CONTROL) BILL, 2002


A Bill to prevent throwing or depositing non-biodegradable garbage in public drains, roads and places open to public view in the State and for matters connected therewith or incidental thereto.

Premable.- WHEREAS, it is expedient to prevent throwing or depositing non-bio degradable garbage in public drains, roads and places open to public view in the State;

BE it enacted in the Fifty third Year of the Republic of India, as follows: -

1. Short title commencement and application.- (1) This Act may be called the Kerala Non-biodegradable Garbage (Control) Act, 2002.

(2) It shall come into force at once.

(3) It applies in the first instance in all municipal areas in the State and the Government may, by notification in the Gazette, apply the provisions of the Act to such areas of heritage, pilgrimage and tourist centres and other areas with effect from such date as may be specified in the notification.

2. Definition.- In this Act, unless the context otherwise requires,-

(a)“bio-degradable garbage” means the garbage or waste material capable of being distroyed by the action of living beings;

(b)“Government” means the Government of Kerala;

(c) “house gully” means a passage or strip of land constructed, set apart or utilized for the purpose of serving or carrying a drain or affording access to the latrine, urinal, cesspool or other receptacle for filth or other polluted matter, by persons employed in the clearing thereof or in the removal of such matters there from;

(d)“Local Self Government Institution” means a Panchayat constituted under the Kerala Panchayat Raj Act, 1994 (13 of 1994) or a Municipality constituted under the Kerala Municipality Act, 1994 (20 of 1994) or a Cantonment Board constituted under the Cantonments Act, 1924 (central Act 2 of 1924).

(e)“market” includes any place where persons assemble for exposing for sale, meat, fish, fruits, vegetables, food, or any other articles for human use or consumption with or without the consent of the owner of such place, notwithstanding that there may be no common regulation for the concourse of the buyers and the sellers and whether or not any control is exercised over the business of, or the person frequenting, the market by the owner of the place or by any other persons;

(f)“non-biodegradable garbage” means the waste garbage or material which is not bio-degradable garbage and includes polythene, nylon and other plastic goods such as Polyvinyl Chloride (PVC), Polypropylene and Polystyrene, which are not capable of being destroyed by an action of living beings and are more specifically included in the Schedule to this Act;

(g)“municipal area” means territorial area of a municipality;

(h)“occupier” includes,-

(i)any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable;

(ii) an owner in occupation of or otherwise using his land or building;

(iii) a rent free tenant of any land or building; and

(iv)any person who is liable to pay to the owner damages for the use and occupation of any land or building;

(i)“owner” includes a person who for the time being is receiving or is entitled to receive, the rent of any land or building, whether on his own account or on account of himself and others or as an agent, trustee, guardian or receiver for any other or who should so receive the rent or be entitled to receive it if the land or building or part thereof were let to a tenant;

(j)“place” means any land or building or part of a building and includes garden, ground and out houses, if any, pertaining to a building or part of a building;

(k)“place open to public view” includes any private place or building, monument, fence or balcony visible to a person being in, or passing along, any public place;

(l)“prescribed” means prescribed by rules made under this Act;

(m)“Public Analyst” means the person appointed or recognized to be the Government Analyst in relation to any environmental laboratory established or recognized, under the provisions of the Environment (Protection) Act, 1986 (Central Act 29 of 1986); and

(n) “public place” means any place which is open to use and enjoyment of the public whether it is actually used or enjoyed by the public or not and includes a road, street, market, house-gully or way, whether a thoroughfare or not, and landing place to which public are granted access or have a right to resort or over which they have a right to pass;

3. Prohibition to throw non-degradable garbage in public drains and sewage.- (1) No person, by himself or through another, shall knowingly or otherwise throw or cause to be thrown in any drain, ventilation shaft, pipe and fittings, connected with the private or public drainage works, any non-biodegradable garbage or any bio-degradable garbage is a non-bio degradable bag or container likely to –

(a) injure the drainage and sewage system;

(b) interfere with the free flow or affect the treatment and disposal of drain and sewage contents; and

(c) be dangerous or cause a nuisance or be prejudicial to public health.

(2) No person shall, knowingly or otherwise, place or permit to be placed, except in accordance with such procedure and after complying with such safeguards as may be prescribed, any bio-degradable or non-biodegradable garbage in any public place or in a place open to public view, unless, –

(a) the garbage is placed in a garbage receptacle; or

(b)the garbage is deposited in a location designated by a Local Self Government Institution having jurisdiction on an area for the disposal of the garbage.

4. Provision for placement of receptacles and places for deposit of non-biodegradable garbage.- It shall be the duty of the Local Self Government Institution, or any officer authorised by it, to –

(a)place or provide in proper and convenient place public receptacles, depots or places for temporary deposit or collection of non-biodegradable garbage;

(b)provide separate dustbins for temporary deposit of non-biodegradable garbage other than those kept and maintained for deposit of bio-degradable garbage;

(c)provide for the removal of contents of receptacles, depots and the accumulation at all places provided or appointed by it under clause (a) of this section; and

(d)arrange for recycling of the non-biodegradable garbage collected under this Act.

5. Duty of owners and occupiers to collect and deposit non-biodegradable garbage etc.-It shall be the duty of the owners and occupiers of all lands and buildings-

(a)to collect or to cause to be collected from their respective land and buildings the non-biodegradable garbage and to deposit, or cause to be deposited, in public receptacles, depots or places provided for temporary deposit or collection of the non-biodegradable garbage by the Local Self Government Institution in the area;

(b)to provide separate receptacles or dustbins, other than those kept and maintained for deposit of bio-degradable garbage of the type and in the manner prescribed by the Local Self Government Institution or its officers for collection therein of all the non-biodegradable waste from such land and buildings and to keep such receptacles dustbins in good condition and repair.

6. Power of Local Self Government Institution for removal of non-bio-degradable garbage.- The Local Self Government Institution may, by notice in writing, require the owner or occupier or part-owner, or person claiming to be the owner or occupier of any land or building, which has become a place of unauthorized stacking or deposit of non-biodegradable garbage and is likely to cause a nuisance, remove or cause to be removed the said garbage so stacked or collected; and if, in its opinion, such stacking or collection of non-biodegradable waste is likely to injure the drainage and sewage system or is likely to be dangerous to life and health it shall forthwith take such steps at the cost of such person as it may think necessary.

7. Studies, research and support programmes.- The State Government may –

(a)undertake studies to determine the composition of bio-degradable or non-biodegradable garbage;

(b)establish measures to conduct or support research or programmes to encourage source reduction, re-use and recycling of waste;

(c)conduct or support studies to determine the social and economic feasibility of household and other solid waste separation schemes including studies of the type and amount of recyclable materials in solid wastes;

(d)encourage; Local Self Government Institutions in the State to provide readily accessible solid waste collection depots for residents who are not provided with regular garbage pick-up;

(e)undertake and encourage, Local Self Government Institutions and other persons to implement policies to recycle waste materials, to promote energy conservation and to purchase products made from recyclable materials;

(f)conduct and support research on recycling including information on operating recycling business and market information on recyclables;

(g)conduct or support research on waste management and recycling, for use in educating the public, Local Self Government Institutions, other institutions and industries; and

(h)impose requirements on manufacturers, distributors and other persons who produce or handle commodities with respect to the type, size, packaging, labelling and composition of packaging that may or must be used and with respect to the disposal of packaging including standards for material degradability and recyclability.

8. Penalties.- (1) Whoever is guilty of any act or intentional omission in contravention of any of the provisions of this Act any rules, notifications or orders made, issued or given under the Act, shall be punishable with fine which may extend to rupees five thousand.

(2) Whoever having been convicted of an offence under this Act is again convicted of any offence under this Act shall be punishable with fine which may extend to double the fine provided for the offence under sub-section (1).

(3) Whoever in any manner aids, abets or is accessory to the commission of an offence under this Act shall on conviction be punished with fine prescribed for the offence.

(4) An Offence punishable under this Act shall be cognizable and bailable.

9. Offences by Companies.- (1) If the person committing an offence punishable under this Act is a Company, every person who, at the time of the commission of the offence, was in charge of, and responsible to the company for the conduct of the business of the company, as well as the Company shall be deemed to have guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Provided that nothing contained in this sub-section that render any person liable to any punishment provided in the Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent commission of the offence.

(2) Notwithstanding anything contained in sub-section (1) where an offence under this Act has been committed by a Company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any gross negligence on the part of any Director, Manager, Secretary or other officer of the Company, such Director, Manager, Secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation. – For the purposes of this section. –

(a) “Company” means any body corporate and includes a firm or other association of individuals; and

(b) “Director” in relation to a firm means a partner in the firm.

10. Offences to be tried summarily.- All offences under this Act shall be tried in a summary way by a Judicial Magistrate of the First Class and the provisions of sections 262 to 265 (both inclusive) of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) shall, as far as may be, apply to such trials.

(1) Compounding of offences,- (1)Any offence punishable under this Act may, before the institution of the prosecution, be compounded by the Local Self Government Institution concerned or by such officer as may be authorised by the State Government in this behalf, on payment, for credit to the Local Self Government Institution concerned, of such sums not exceeding fine amount fixed for the offence.

(2) Where any offence has been compounded under sub-section (1) no proceedings shall be taken against the offenders, in respect of the offences as compounded, and the offender, if in custody, shall be discharged.

12. Directions by the State Government.- The Local Self Government Institutions shall carry out such directions may be issued from time to time, by the State Government for the effective administration of this Act.

13. Power to amend Schedule.- (1) Where it is expedient to do so, the State Government may, in public interest and in consultation with the Public Analyst, by notification in the Official Gazette, add to, or omit from the Schedule any item of non-biodegradable waste and thereafter the Schedule shall be deemed to be amended accordingly.

(2) Every notification under sub-section (1) shall be laid, as soon as may be after it is made, before the State Legislative Assembly.

14. Power to delegate.- The State Government may, by order published in the Official Gazette, direct that any power exercisable by it under this Act (not including the power to make rules under section 17) may also be exercised, in such cases, as may be specified in the order, by the Local Self Government Institution concerned.

15. Protection of action taken in good faith.- No suit, prosecution or other legal proceedings shall lie against the State Government or the Local Self Government Institution concerned or any officer or the employees of the State Government or the employees of the Local Self Government Institution concerned for any thing which is in good faith done or intended to be done under this Act or the rules made thereunder.

16. Other laws not affected.- The provisions of this Act are in addition to, and not in derogation of the provisions of any other law for the time being in force.

17. Power to make rules.- (1) The Government may by notification in the Gazette, make rules for the purpose of carrying out the provisions of this Act.

(2) Every rule made under this Act shall be laid as soon as may be, after it is made before the State Legislative Assembly, while it is in session, for a total period of fourteen days which may be comprise in one session or in two successive session, and if, before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly makes any modification in the rule or decides that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

SCHEDULE

(See section 2 (e)

NON-BIODEGRADABLE GARBAGE

1. Polyethylene 9. Cellulose Acetate

2. Polycarbonate 10. Cellulose Acetate Butyrate

3. Polypropylene 11. Nylon

4. Polystyrene

5. Polyzinyl Chloride (PVC)

6. ABS

7. Acetal

8. Cellulose Acetate

STATEMENT OF OBJECTS AND REASONS.

The removal of garbage has become a major problem especially in Cities and Towns. Removal of solid waste is the duty of local government institutions. A good percentage of garbage in the State is biodegradable that is, it can be destroyed by action of living being and can be converted into compost or used as a source of energy, but in recent years polythene and plastic bags have become ubiquitous and even bio-degradable garbage is dumped on road sides everywhere in such bags. The polythene and plastic bags made of Polyvinyl Chloride (PVC), Polypropylene and Polystyrene are not capable of being easily degraded. Attempts have been made in several States in India to ban the use of such bags. Bags made of material below a certain thickness are sought to be bounded in our state also. But since they are easy to handle and are convenient in every way, they are in ordinary use by people for a variety of purposes. Banning the use of such bags has therefore been found to be ineffective.

2. The Bill seeks to achieve the above objects.

FINANCIAL MEMORANDUM
As per clause 4 and 5 of the Bill the local authority is duty bound for the placement of receptacles and places for deposit of non-biodegradable garbage and also for the removal of non-biodegradable garbage. The expenditure for the purpose will have to be met from the local self-governments concerned.

Clause 7 of the Bill mier alia provides that the Government may undertake studies research and conduct support programmes. This may be done through Government organizations or Non-Government organization. Some expenditure from the Consolidated Fund of the State will be incurred for implementing the programme. A sum of Rs.25 lakhs is expected to be incurred during the financial year.

Memorandum Regarding Delegated Legislation
1. Sub-clause (3) of clause 1 of the Bill seeks to empower the Government to extend the provisions of the Act to such areas of heritage, pilgrimage and tourist centres etc.

2. Clause 13 of the Bill seeks to empower the Government to add to or omit from the schedule any item of non-biodegradable waste by notifying in the Gazette.

3. Clause 14 of the Bill seeks to empower the Government to delegate, by order, any power exercisable by it to any such officers or authority.

The matters in respect of which rules may be made or orders may be issued are matters of procedure or of details and are of routine and administrative nature. Further every rule made under this Act are subject to scrutiny any the Legislative Assembly The delegation of legislative power is, thus of a normal character.