'Clear Case Of Excessive Delegation': Plea Before Kerala High Court Challenges Condition To Obtain License From BIS To Manufacture PVC Pipes

A plea has been filed before the Kerala High Court challenging the 'Lead Stabilizer in Polyvinyl Chloride Pipes and Fittings Rules, 2021' and the requirement therein to obtain a license from the Bureau of Indian Standards for manufacturing PVC pipes and fittings.

The plea challenges a notification issued by the Ministry of Environment, Forest and Climate Change (MOEF) dated 30.03.2021 notifying the said Rules. Senior Advocate George Poonthottam appeared on behalf of the petitioners.

The requirement of obtaining a license from the Bureau of Indian Standards has been alleged to be per se arbitrary and violative of the object of the Environment Protection Act, 1986 and the Rules.

Similarly, the plea contends that such requirement is a clear case of excessive delegation forcing the petitioners to approach the Court challenging the same. 

The preface of the notification discloses that it was issued in light of the judgment of the National Green Tribunal in Jan Sahyog Manch vs Union of India & Ors. 

The plea submitted that a perusal of this judgment would show that the Tribunal concluded that the powers of the BIS is limited in prescribing 'quality' of a product and it is the duty of the MOEF to fix standards for control of pollution caused by a product or process.

Thereafter, the Tribunal had directed the MOEF to lay down the standards for the presence of lead in PVC pipes in consultation with BIS.

In compliance with the Tribunal's directions, the MOEF notified the Draft Lead Stabilizer in Polyvinyl Chloride Pipes and Fittings Rules, 2019. 

As per the said Draft Rules, every manufacturer and importer of PVC pipes and fittings was directed to comply with the limits of lead extraction as specified by the Bureau of Indian Standards. 

The plea stated that the MOEF had conveniently skipped its duty of prescribing standards in consultation with BIS by adopting the standards fixed for quality purposes by BIS.

"Not content in abdicating its duty in fixing standards, the MOEF went another step further into the abyss of arbitrariness by requiring all manufacturers of PVC pipes and fittings to obtain a license from the BIS within 6 months of publication of the Rules," the plea adds.

Technical Complications Involved

The main complication in the notification is that the mechanism put in place for control of lead by the MOEF is highly impractical, the petitioners asserted.

In order to comply with the said requirement, the manufacturer has to first set up a testing laboratory as per BIS guidelines, which requires considerable time and investment for purchase and installation of testing equipment and construction of a building, which again requires permission from various statutory government bodies.

Once the laboratory is set up, the manufacturer has to possess the technology to produce pipes and fittings that passes all the prescribed tests. 

Since the number of PVC pipe & fittings manufacturers without BIS certification is huge when compared with the certified manufacturers, numerous samples from the uncertified manufacturers have to be tested in the BIS approved laboratories to get confirmatory results for each group of pipes to file an application for BIS certification.

The existing testing facilities at the BIS laboratories are not capable enough to handle the huge number of samples to be tested from the existing uncertified manufacturers and report the result in six months, the plea avers.

"Thus making BIS certification mandatory will threaten the very existence of such manufacturers since their pipes cannot be sold in the market with ISI emblem and this in turn will affect the users of such pipes for plumbing applications," the plea read. 

Representations Ignored By Govt.

Pointing out the illegalities and arbitrariness in the draft Rules, the petitioner sent an objection to the Draft Rules 2019 through a letter dated 06.11.2019, pointing out that it is not viable to obtain a BIS licence within 6 months under the present circumstances.

However, the plea states that the repeated representations of the petitioner before the Central Government fell on deaf ears.

Deviance From the NGT Decision

The petitioners asserted that the very intention of the 2019 Rules was to prohibit the use of Lead Compound in the manufacture of PVC Pipes and Fittings. On this ground, they argued that it was sufficient that the pipes comply with the limits of the lead extraction as specified by the BIS.

Accordingly, it was prayed that the 2021 Rules be set aside for being unconstitutional and that it is in excess of the jurisdiction of the Government. 

The petitioner also sought a writ declaring that the compulsory imposition of BIS license for PVC pipes and fittings is arbitrary and illegal.

Case Title: All Kerala Small Scale PVC Pipe Manufacturers & Anr v. Union of India & Ors.