TEAM-E (P)

ISBR INTRA-MOOT COURT COMPETITION 2nd EDITION

ISBR, 2021

IN THE HON’BLE SUPREME COURT OF REPUBLIC OF INDIANA

IN THE MATTER OF

WRIT JURISDICTION

Writ Petition (Civil) No. 315 of 2021

PARVAAH IOC INDUSTRIES

V.

PETITIONER NO.1 RESPONDENT NO.1

&

APPELLATE JURISDICTION

Appeal (Civil) No. 2304 of 2021

ROT MANUFACTURERS IOC INDUSTRIES

V.

APPELLANT RESPONDENT NO.2

PETITIONS U/ARTs. 136 & 32 OF THE CONSTITUTION OF INDIANA,1950

MEMORANDUM ON THE BEHALF OF PETITIONER/APPELLANTS

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Table of Contents
LIST OF ABBREVIATION ...................................................................................................... 4

INDEX OF AUTHORITIES...................................................................................................... 6

I. Case Laws ....................................................................................................................... 6

II. Legislations ................................................................................................................. 8

III. Journals & Books ........................................................................................................ 9

IV. Websites ...................................................................................................................... 9

STATEMENT OF JURISDICTION........................................................................................ 10

STATEMENT OF FACTS ...................................................................................................... 11

STATEMENT OF ISSUES ..................................................................................................... 13

ISSUE 1 ............................................................................................................................... 13

ISSUE 2 ............................................................................................................................... 13

ISSUE 3 ............................................................................................................................... 13

ISSUE 4 ............................................................................................................................... 13

SUMMARY OF ARGUMENTS ............................................................................................. 14

1. WHETHER THE INSTANT MATTER IS MAINTAINABLE? ................................. 14

3. WHETHER MANAGEMENT OF WASTE BY IOC INDUSTRIES NEAR BOHRA

VILLAGE ACCORDING TO ENVIRONMENTAL NORMS? ........................................ 15

4. WHETHER ROT LIABLE TO PAY COMPENSATION FOR FAILING TO

COMPLETE THEIR CONTRACT? ................................................................................... 15

ARGUMENTS ADVANCED ................................................................................................. 16

1. WHETHER THE INSTANT MATTER IS MAINTAINABLE? ................................. 16

1.1. The Writ Petition is maintainable .......................................................................... 16

1.2. ROT Manufacturers have a valid Locus Standi to approach this court ................. 18

2. WHETHER IOC INDUSTIRES IS LIABLE FOR INJUCTION & TO PAY

COMPENSATION TO BHORA VILLAGE RESIDENTS? .............................................. 20

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2.1. The Petitioner fighting in the behalf of Bhora villagers are entitled to right to health
20

2.2. The Respondent is disposing the waste directly to the banks of the Jamuna river 21

2.3. IOC is not abiding by the waste disposal remedies as assigned by the Government of
Indiana.................................................................................................................................. 22

3. WHETHER MANAGEMENT OF WASTE BY IOC INDUSTRIES NEAR BOHRA

VILLAGE ACCORDING TO ENVIRONMENTAL NORMS? ........................................ 23

3.1. IOC had derived the Environmental clearances and the other permissions hastily .. 23

3.2. Fundamental duties should be respected along with Legal permissions. .............. 24

3.3. IOC Industries inability to abide by the concept of Sustainable Development or

Sustainable and Environment-friendly Industrial Production (SEIP) .............................. 24

4. WHETHER ROT LIABLE TO PAY COMPENSATION FOR FAILING TO

COMPLETE THEIR CONTRACT? ................................................................................... 26

4.1. Force Majeure in the contract ................................................................................ 26

4.2. Impossibility and Force Majeure ........................................................................... 28

4.3. Can a Force Majeure clause be interpreted to cover a ‘Pandemic’? ..................... 29

PRAYER .................................................................................................................................. 32

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LIST OF ABBREVIATION

ABBREVIATION EXPANSION
& And
ACJ Accident Claims Journal
AIR All India Reporter
Anr. Another
Art. Article
Chap. Chapter
DLT Delhi Law Times
Edn. Edition
i.e. That is
Ltd. Limited
NGO Non-Governmental Organization
No. Number
Ors. Others
Pg. Page
S. Section
SC Supreme Court
SCC Supreme Court Cases
SLP Special Leave Petition
WP Writ Petition
AJ Appellate Jurisdiction
WHO World Health Organization
V. Versus
US United States
UK Ukhrakhand
Vaj. Vajasthan
IPR Intellectual Property Rights
Env. Environment

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c. Canon
cc. Canons
CL Common Law
Cert. Certiorari
CJS Corpus Juris Secundum
ER Employer
EE Employee
SARS-CoV2 Severe Acute Respiratory Syndrome
Coronavirus-2
COV. Covid
JD Juris Doctor
JUST. Justice
Resp’t Respondent
Resp. Responsum
Rescr Rescriptum

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INDEX OF AUTHORITIES

I. Case Laws

[Link] CASE TITLE CITATION

1 High Court of Judicature at Bombay v. Shirish High Court of Judicature at
Kumar Rangroa Patil Bombay v. Shirish Kumar
Rangroa Patil, (1997) 6 SCC
339.
2 High Court of Judicature at Bombay v. Shirish Vishaka v. State of Rajasthan,
Kumar Rangroa Patil (1997) 6 SCC 241

3 S. P. Gupta v. Union of India AIR 1982 SC 149

4 State of Bombay v. United Motors Ltd AIR 1953 SC 252
5 Coffee Board v. Jt. Commercial Tax Officer AIR 1971 SC 870
6 Satish Kumar vs Union Of India Ors Satish-Kumar-Vs-Union-of-
India-Ors M.A.T No.425 of
2015
7 Bandhua Mukthi Morcha etc vs Union of India AIR 1984 SC 802.
and others
8 Satyabrata Ghose v. Mugneeram Bangur & Co 1954 SCR 310

9 Rural Fairprice Wholesale Ltd. v. IDBI Rural Fairprice Wholesale

Ltd. v. IDBI, 2020 SCC
OnLine Bom 518
10 Anant Raj Ltd v. Yes Bank Anant Raj Limited v. Yes
Bank Limited, 2020 SCC
OnLine Del 543

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11 Halliburton Offshore Services Inc v. Vendanta 2020 SCCOnLine Del 542

Inc.
12 Narmada Bachao Andolan Vs. Union of India Narmada Bachao Andolan v.
Union of India, 10 S.C.C. 664,
18 October 2000
13 Kendra Dehradun vs. State of Uttar Pradesh Kendra Dehradun vs. State of
Uttar Pradesh AIR 1987 SC
2187
14 Samit Mehta vs. Union of India Samit Mehta vs. Union of
India National Green Tribunal
Aug 23, 2016
15 M.C. Mehta vs Union of India M.C. Mehta And Anr vs
Union Of India & Ors on 20
December, 1986

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II. Legislations

[Link]. Title of Legislation

1. Article 136, The Constitution of India
2. Article 21, The Constitution of India
3. Article 32, The Constitution of India
4. Section 51A(g) of Part IV of The Constitution of India
5. The Water Prevention and Control of Pollution Act, 1974
6 CPCB, Environment Protection Act, 1986
7 Section 37, Indian Contract Act, 1872
8 Section 32, Indian Contract Act, 1872
9 Section 56, Indian Contract Act
10 Universal Declaration of Human Rights
11 Force Majeure Clause Office Memorandum No.F. 18/4/2020-PPD
12 Noti. No. 283A8/2020-GRID SOLAR
13 Months' Rental Waiver to the IT Companies Operating from (STPI) dt. 16-4-2020

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III. Journals & Books

[Link]. Title of Journal/Book

1 Durga Das (1993). Introduction to the Constitution of India (15th ed.)
2 Dr. S. K. Kapoor, International Law and Human Rights (18th Edn.)
3 E. M. Rao, Industrial Jurisprudence, LexisNexis
4 Dr. S. R. Myneni, Law of intellectual Property, (7th Edn.)
5 M. P. Jain, Indian Constitutional Law, (6th Edn, 2010
6 P. J. Fitzgerald, Salmond on Jurisprudence (12th Edn.)
7 V. G. Ramachandran, Law of Writs
8 Bryan A. Garner, Black's Law Dictionary, (8th Edn.)
9 Oxford Dictionary of Law, (4th Edn.)
10 Oxford Medical Dictionary (Android Application)
11 P Ramanatha Aiyar, Law Lexicon, (3rd Edn.)
12 Biomedical Waste (Management and Handling) Rules, 2016

IV. Websites

[Link]. Website Link

1 [Link]
2 [Link]
3 [Link]
4 [Link]
5 [Link]

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STATEMENT OF JURISDICTION

The Appellants herein have approached the Supreme Court of Indiana though:

1. Appellant: An appeal U/Art. 136 of The Constitution of Indiana, 1950

2. Petitioner: A Wit Petition U/Art. 32 of The Constitution of Indiana, 1950.

The petitions have been clubbed together, and the Supreme Court has admitted the petitions as
maintainable.

This memorandum sets forth the facts, laws, and the corresponding arguments on which the
claims are based in the instant case. The petitioners affirm that they shall accept any judgment
of this Hon'ble Court as final and binding upon itself and shall execute it in its enmity and in
good faith.

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STATEMENT OF FACTS

The relevant facts are not contested by the parties, except as indicated in this opinion.

I. Indiana is one of the world's largest countries, with a diverse culture and heritage.
With numerous languages spoken, it is a home to people of different religions and
communities. It is a quasi-federal country and a major economic player in the Asian
region; consisting of East, West, North, South and Central Provinces. Indiana is the
Asian region's only democratic republic with socialist and secular characteristics. It
is abundant in minerals and other natural resources, and it is surrounded by rivers,
green forests, and mountains.

II. In the year 2020, a worldwide pandemic broke out due to the contagious SARS-
CoV2 (Severe Acute Respiratory Syndrome Coronavirus-2) and the disease caused
by contracting this virus is called as COVID-19 (Corona Virus Disease). On
11.03.2020, World Health Organisation (WHO) officially declared the outbreak of
Covid-19 as a global pandemic. It has spread across 170 countries while affecting
millions, is still increasing at a staggering rate. Amongst these countries, Indiana is
one of the most affected.

III. Indiana experienced its second wave of the virus in the year 2021 which worsened
the situation. Hospitals battling a furious Covid-19 surge around the country have
exhausted their supplies of oxygen cylinders, necessary to help patients in dealing
with the oxygen depletion caused by the virus. High Courts of various states have
been ordering the Indiana's government to get oxygen by any means possible, though
most avenues of procurement, including imports from other countries, are too slow
for the current emergency.

IV. To meet the rising demand for oxygen cylinders the government of Indiana in haste
gave all the environmental clearances and necessary permission for setting up of
medical oxygen generation plants. IOC Industries is one such industry which got the

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permission to set up a plant on a large scale at a distance of 200 meters from Jamuna
river in Bhora village of Ukhrakhand.

V. Three months later from setting up of this plant the inhabitants of Bhora village
started reporting in large numbers severe health diseases like typhoid, cholera,
diarrhea, encephalitis, etc. These water borne diseases were the result of excessive
water pollution caused by the medical oxygen generation plant of the IOC Industries.

VI. After information regarding the contamination of Jamuna river and critical health
conditions of locals of Bhora village was made public, an NGO named Parvaah
immediately filed Petition in Supreme Court of Indiana asking for injunction and
compensation to the people affected by the pollution.

VII. Meanwhile ROT Manufacturers, a leading manufacturing company for raw materials
in Vajasthan, had signed a contract with IOC Industries for providing raw materials
for the purpose of cryogenic distillation process, a process to produce oxygen. But
since state borders of Vajasthan got sealed due to the surge of Covid patients in the
State, they were not able to supply the raw materials owing to which IOC Industries
incurred huge losses. To seek compensation IOC Industries filed a suit against ROT
Manufacturers which was appealed in the High Court of Ukhrakhand. The High
Court decided in favour of IOC Industries and ordered the ROT Manufactures to
compensate for the losses. Appealing against this decision, the ROT Manufacturers
approached the Supreme Court of Indiana.

VIII. The Supreme Court took note of both the cases against IOC Industries. The Court
decided to here both the matters on 21.05.2021 and clubbed the cases, inter alia, Writ
Petition (Civil) No. 315 of 2021 and Appeal (Civil) No. 2304 of 2021.

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STATEMENT OF ISSUES

ISSUE 1
WHETHER THE INSTANT MATTER IS MAINTAINABLE?

ISSUE 2
WHETHER IOC INDUSTRIES ARE LIABLE FOR INJUNCTION & TO PAY
COMPENSATION TO BHORA VILLAGE RESIDENTS?

ISSUE 3
WHETHER MANAGEMENT OF WASTE BY IOC INDUSTRIES NEAR BOHRA
VILLAGE ACCORDING TO ENVIRONMENTAL NORMS?

ISSUE 4
IS ROT LIABLE FOR PAYING COMPENSATION FOR FAILING TO COMPLETE
THEIR CONTRACT WITH IOC

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SUMMARY OF ARGUMENTS

1. WHETHER THE INSTANT MATTER IS MAINTAINABLE?

Parvaah has filed for a petition under Art. 136 of the Constitution of India (hereafter referred
to as the Constitution of Indiana) before this Hon'ble Supreme Court, to seek judicial redress
for violating the Fundamental Rights under Art. 21 of the people living in Bohra village. The
petition filed is with bona fide intention. They have valid Locus Standi under Art. 32 since
there has been an infringement of Fundamental Rights. As for ROT industries, they have filed
a civil appeal. Supreme Court has both original and appellate jurisdiction. The appellate
jurisdiction of the Supreme Court of India is governed by the Constitution of India Article
136. This Article empowers the Supreme Court to grant leave to appeal against the order passed
by the high Court of UK which was a related to the contract. As the lockdown initiated by the
government can be seen as 'force Majeure. Therefore, the failure occurring due to an unforeseen
power or act of God.

2. WHETHER IOC INDUSTRIES IS LIABLE FOR INJUNCTION & TO PAY

COMPENSATION TO BHORA VILLAGE RESIDENTS?

Petitioner humbly submits that the activities of the Respondent is unconstitutional and the
impugned activity is within the ambit of Part IV of the Constitution under section 51A(g) in
the light of the following arguments:

Parvaah has stated the chemical disposal by the industry has led to a rise in health diseases for
Bhora villagers. Therefore, the disposal from the industry deprives the villagers of a right to
health under the fundamental rights of the Constitution.

As a prominent industry, it has been stated in the environmental laws. Every industry is
expected to build tanneries and process the waste before disposal under The Water Prevention
and Control of Pollution Act, 1974 (the "Water Act"). However, it is evident that the
Respondent hasn't taken such measures.

Compensation is a bare minimum that can be asked for the industry as a fine for not controlling
the disposal and contributing to the medical bills of the Bhora villagers. Previously

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Environmental Compensation(EC) has also been imposed by the Central Pollution Control
Board(CPCB) under the environment Protection Act of, 1986.

3. WHETHER MANAGEMENT OF WASTE BY IOC INDUSTRIES NEAR BOHRA

VILLAGE ACCORDING TO ENVIRONMENTAL NORMS?
It is humbly submitted to the Court that the permission given to the IOC industries is also
accompanied by responsibilities. According to the Environmental laws of Indiana, The
Ministry of Environment, Forest and Climate Change, Government of Indiana has mentioned
that openly dumped hazardous waste will cause contamination accompanied by severe
consequences in the field of agriculture and supply of public water. Therefore, it is requirement
that setting up an industry is followed by recycling of disposal from the particular industry
according to the Pollution Control Committee (PCC) or State Pollution Control Board (SPCB).

4. WHETHER ROT LIABLE TO PAY COMPENSATION FOR FAILING TO

COMPLETE THEIR CONTRACT?
It is humbly submitted as per Section 37 of the Indian Contract Act, 1872, the parties to a
contract must either perform, or offer to perform, their respective promises, unless such
performance is dispensed with or excused under the provisions of this Act, or of any other law.
On account of this pandemic, the situations may arise in a catena of commercial contracts
wherein a party, without any fault on its part, is not able to perform its part of the contract
which is apparent in this case as in hoping to contain the spread of the disease the state borders
of the sate of Vaj. got sealed. It is further submitted that the contract will be deemed void acrd.
to Sec. 32 of the Indian Contract Act, 1872. Sec. 56 of the Indian Contract Act is also invoked
as it has become impossible and unlawful to try and deliver the goods after the State has
declared a lockdown.

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ARGUMENTS ADVANCED

1. WHETHER THE INSTANT MATTER IS MAINTAINABLE?

Parvaah has filed for a petition under Art. 136 of the Constitution of India (hereafter
referred to as the Constitution of Indiana1) before this Hon'ble Supreme Court, to seek
judicial redress for violating the Fundamental Rights under Art. 21 of the people living in
Bohra village. Petition filed is with bona fide intention. They have valid Locus Standi under
Art. 32 since there has been an infringement of Fundamental Rights. As for ROT industries,
they have filed a civil appeal. Supreme Court has both original and appellate jurisdiction.
The appellate jurisdiction of the Supreme Court of India is governed by the Constitution of
India Article 136. This Article empowers the Supreme Court to grant leave to appeal
against the order passed by the high Court of UK which was a related to contract. As the
lockdown initiated by the government can be seen as 'force Majeure. Therefore, the failure
occurring due to an unforeseen power or act of God.

[Link] Writ Petition is maintainable

It is humbly submitted before this Hon'ble Court that the petition is filed by the
Petitioner is maintainable as the Petitioner is filing it in public interest. The
Petitioners have no personal interest in the litigation and the petition is not guided
by self-gain or for gain of any other person/body/institution and that there is no
motive other than public interest. The Petitioner have a valid Locus Standi and the
cause of action has already had a direct violation on the Fundamental Rights of the
aggrieved. The judiciary is the protector of the fundamental rights as stated in High
Court of Judicature at Bombay v. Shirish Kumar Rangroa Patil 2.

1.1.1. The judiciary is the protector of the fundamental rights

The judiciary is the protector of the fundamental rights and to fill up
the vacuum in existing legislation for the enforcement of fundamental

1
Since all laws of Bharath are pari materia to India.
2
High Court of Judicature at Bombay v. Shirish Kumar Rangroa Patil, (1997) 6 SCC 339.

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rights, the Supreme Court can lay down guidelines and norms3.
Petitioner has always been an advocate of human and fundamental
rights of the weaker section. In the instant matter as well, Petitioner
has filed writ petition for protecting the fundamental rights of the
residents of Bohra village, which is in 'public spirit.'

And in the case of S. P. Gupta v. Union of India4, it was held that

when an individual is filing a case in a public spirit, there is no reason
to discourage it. It is humbly submitted before this Hon'ble Court there
this petition follows a legal action in a court of law for the enforcement
of public interest or general interest in which the public or a class of
the community have a pecuniary interest by which their legal rights or
liabilities are affected5.

1.1.2. Violation of Right to a Healthy Life

Health is the vital indicator of Human development, and this indeed is
the essential ingredient of economic and social development. In this
instant case, the Petitioner has observed that Fundamental Rights of the
innocent are being infringed and that there is grave abuse of Human
Rights.

The traditional rule in regard to Locus Standi is that judicial redress is

available only to a person who has suffered a legal injury by reason of
the violation of his legal right or legally protected interest by the
impugned action of the State or a public authority or any other of the
person or who is likely to suffer a legal injury by reason of threatened
violation to the property by reason of the violation of his legal right or
legally protected interest by any such action.

The basis of entitlement of judicial redress is personal injury to property,

body, mind, or reputation arising from violation, actual or threatened, of
the legal right or legally protected interest of the person seeking such

3
Vishaka v. State of Rajasthan, (1997) 6 SCC 241
4
AIR 1982 SC 149
5
Janatha Dal v. H.S. Chowdhary, (1992) 4 SCC 548.

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redress6. In the instant case, there is a grave violation of the legal rights,
and injury has been caused. Thus, Petitioner has all the rights to seek
judicial redress.

Further, in State of Bombay v. United Motors Ltd.7, it was stated that

when there is a well-founded allegation that fundamental rights have
been infringed, the alternative remedy is no bar for entertaining the
writ petition and granting relief. It is humbly submitted that in the instant
matter as there is a violation of fundamental rights of the Petitioner, the
petition cannot be quashed on the basis of the existence of alternative
remedies. The same was reiterated in Coffee Board v. Jt. Commercial
Tax Officer8.

In the present case, the redress sought satisfies the test for a valid cause of action,
and the Supreme Court shall have the power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto, and certiorari, whichever may be appropriate, for the enforcement of any
of the fundamental rights conferred under the Constitution.

[Link] Manufacturers have a valid Locus Standi to approach this Court

The traditional rule in regard to Locus Standi is that judicial redress is available
only to a person who has suffered a legal injury by reason of the violation of his
legal right or legally protected interest by the impugned action of the State or a
public authority or any other of the person or who is likely to suffer a legal injury
by reason of threatened violation to the property by reason of a violation of his legal
right or legally protected interest by any such action.

6
S.P. Gupta v Union of India, AIR 1982 SC 149.
7
AIR 1953 SC 252
8
AIR 1971 SC 870

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1.2.1. ROT can seek Judicial Redress

The basis of entitlement of judicial redress is personal injury to property, body,
mind or reputation arising from violation, actual or threatened, of the legal right
or legally protected interest of the person seeking such redress 9. In the instant
case there is grave violation of the legal rights and if not addressed there will be
huge loss of capital especially in these times for the appellant. Thus, the
appellant has all the rights to seek judicial redress.

In the present case the redress sought satisfies the test for a valid cause of action
and the Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate.

1.2.2. Supreme Court has the power of appellate jurisdiction

Article 32 provides a guaranteed remedy, in the form of a Fundamental Right
itself, for enforcement of all the other Fundamental Rights, and the Supreme
Court is designated as the protector of these rights by the Constitution10.

Therefore, it is well within the rights of the appellant and the jurisdiction of the
supreme Court to accept the Locus Standi of the appellant.

9
S.P. Gupta v Union of India, AIR 1982 SC 149.
10
p. 122, Durga Das (1993). Introduction to the Constitution of India (15th ed.)

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2. WHETHER IOC INDUSTIRES IS LIABLE FOR INJUCTION & TO PAY

COMPENSATION TO BHORA VILLAGE RESIDENTS?
It is humbly pleaded before the Court of Law that the Rules of procedure are unconstitutional
and against the basic feature of the Constitution. In addition, the right to health falls under the
Article 21 in the Constitution of Indiana.

Parvaah have stated the chemical disposal by the industry has led to arise in health diseases
for Bhora villagers. Therefore, the disposal from the industry deprives the villagers from a
right to health under the fundamental rights of the Constitution.

As a big industry it has been stated in the environmental laws. Every industry is expected to
build tanneries and process the waste before disposal under The Water Prevention and
Control of Pollution Act, 1974 (the "Water Act"). However, it is evident that the Respondent
hasn't taken such measures.

Compensation is a bare minimum that can be asked for the industry as a fine for not controlling
the disposal and contributing to the medical bills of the Bhora villagers. Previously
Environmental Compensation(EC) has also been imposed by the Central Pollution Control
Board(CPCB) under the environment Protection Act of, 1986.

2.1. The Petitioner fighting in the behalf of Bhora villagers are entitled to right to
health
According to the complaints of the Bhora villagers, the water pollution due to
the chemical disposal from the IOC Industries has led to health issues. The
waste from the industries was not treated before dumping them in the banks of
the river Jamuna. Since river Jamuna is the basic water source of water for the
Bhora villagers. The indirect intake of the fumes or chemicals with the water
was the result of the diseases.

With the rise of COVID-19, the general beds in the hospitals have been reduced
and building have been wholly devoted to treatment of the virus. In the midst of
the crises, Bhora villagers won't be able to seek proper medical help to fight

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typhoid, cholera, diarrhea, encephalitis. Previously in the judgement of 11Satish

Kumar vs Union Of India Ors on 12 December, 2013 Satish Kumar had
submitted similar reports on behalf of Mundka village, who were being affected
by the pollutants from the plastic industry. 12

Tribunal very clearly held that such contention does not give right to anyone of
such dealers to indulge in any illegality leading to environmental damage.
Tribunal also dealt with the issue relating to environmental protection and
enforcement of any legal right relating to environment and to give relief and
compensation to person and property and for matters connected therewith or
incidental thereto.

In the Bandhua Mukthi Morcha etc vs Union of India and others13 , the Court
addressed the types of conditions necessary for enjoyment of health. The Court
held that Right to Live with Human dignity also involves right to 'Protection of
Health'. The substantive recognition of right to health as essential to 'living with
human dignity' is also mentioned in the Universal Declaration of Human
Rights under Art. 2514.

[Link] Respondent is disposing the waste directly to the banks of the Jamuna river
Hazardous waste management regulations are dealt in the Factories Act, 1948,
the Public Liability Insurance Act, 1991, the National Environment Tribunal
Act, 1995. They have formulated the draft Bio-Medical Waste (Management &
Handling) Rules, 2015 (Draft BMW Rules) and the draft Solid Waste
Management Rules, 2015 (Draft SWM Rules).

In the Draft BMW Rules, the prescribed authorities have been given directions
to implement the rules more effectively, thereby, reducing the bio- medical
waste generation. The rules also guide the on the proper treatment and disposal
of factory waste and to ensure the waste deposited is environmentally sound.
The Draft SWM Rules aim at dealing with the management of solid waste

11
Satish-Kumar-Vs-Union-of-India-Ors M.A.T No.425 of 2015
12
Section 18(2) in The National Green Tribunal Act, 2010
13
AIR 1984 SC 802.
14
UDHR, Art.25.

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including it segregation at source, transportation of waste, treatment and final

disposal.

In Subhas Kumar v. State of Bihar15 , it has held that a Public Interest

Litigation is maintainable for ensuring enjoyment of pollution-free water and
air which is included in ‘right to live’ under Art.21 of the constitution. The court
observed:

“Right to live is a fundamental right under Art 21 of the Constitution and it

includes the right of enjoyment of pollution free water and air for full enjoyment
of life. If anything endangers or impairs that quality of life in derogation of
laws, a citizen has right to have recourse to Art.32 of the Constitution for
removing the pollution of water or air which may be detrimental to the quality
of life.”

[Link] is not abiding by the waste disposal remedies as assigned by the Government
of Indiana
Since IOC hasn't been able to provide appropriate proof of their filtered
disposal. It is liable to pay compensation under Section 18(2) (e) of the
(National Green Tribunal) NGT Act. The fact is that there has been pollution
caused due to unregulated handling of plastic waste and its burning in the said
villages/areas and it has damaged the environment. Certainly, the plastic waste
dealers are the source of this pollution and as a polluter they are required to bear
the burden of restoring the environment. In the case of Satish Kumar vs Union
Of India Ors 1. The extent of area in use and occupation of each plastic waste
dealer. 2. Amount of plastic waste handled by each of the plastic waste dealer
over the years since the occupation of the area for their business. [Link] of
plastic waste not fit for recycling.
4. Any other data relevant for the purposes of the quantification of the damages

15
AIR 1963 SC 1295

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caused. Therefore, Bhora villagers should also be paid compensation similarly

based on the damage caused and the people affected.

3. WHETHER MANAGEMENT OF WASTE BY IOC INDUSTRIES NEAR

BOHRA VILLAGE ACCORDING TO ENVIRONMENTAL NORMS?
It is humbly submitted to the Court that the permission given to the IOC industries is also
accompanied by responsibilities. According to the Environmental laws of Indiana, The
Ministry of Environment, Forest and Climate Change, Government of Indiana has mentioned
that openly dumped hazardous waste will cause contamination accompanied by serious
consequences in the field of agriculture and supply of public water. Therefore, it is a
requirement that setting up an industry is followed by recycling of disposal from the particular
industry according to the Pollution Control Committee (PCC) or State Pollution Control Board
(SPCB).

Petitioner submits that the activities of the Respondent is unconstitutional and the impugned
activity is within the ambit of Part IV of the Constitution under section 51A(g) in the light of
the following arguments:

[Link] had derived the Environmental clearances and the other permissions
hastily
Every industry needs to be inspected properly before deriving the clearances.
As per the laws in Indiana, to get clearance certificate an EIA report is prepared
where EIA stands for "Environmental Impact Clearance". It is only after the
report is prepared comes the interference of the State Pollution Control board
and State Forest Department.

It is then the report is evaluated, the quality and quantity of the effluents which
is likely to be generated. Accordingly, investors suggest remedies or control
measures to make sure it is environmentally sound as per the prescribed
standard before handing over a NOC with a validity of 15 years. However, that
wasn't the case for IOC industries. The clearance given to IOC industries have
been clearly mentioned to be given "hastily" or rather in a hurry.

Since proper procedure was not attained while procuring the Environmental
Clearance, the waste deposition by the industries should be properly

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investigated by the officials and the affected members of the Bhora village
should be well compensated.

[Link] duties should be respected along with Legal permissions.

Our Constitution clearly mentions law is equal in the eyes for everyone.
Therefore, it was also a fundamental duty of the officials in IOC industries to
abide by their fundamental rights or be well educated of its application.
According to Part IV of the Constitution under section 51A(g) mentions it is our
duty to protect and improve the natural environment including forests, lakes,
rivers and wildlife, and to have compassion for living creatures.

Also, under the ambit of Section 7 of the Environment Protection Act states a
principal prohibition on harming the environment by stating that no person
carrying any activity should emit or discharge environmental pollutants in
excess of the prescribed standards.

Previously in the case of Narmada Bachao Andolan Vs. Union of India, the
Supreme Court, held that the right to clean water is a fundamental right under
Article 21 of the Indian [Link], under the ambit of the case it is
the right of the Bhora citizens to have access to clean water despite of the
"hastily" environmental clearance given to the IOC industries.

[Link] Industries inability to abide by the concept of Sustainable Development

or Sustainable and Environment-friendly Industrial Production (SEIP)
Previously under the bench of justices PN Bhagwati and Ranganath Misra in
rural litigation and entitlement Kendra Dehradun vs. State of Uttar
Pradesh the concept of sustainable development. In this case an NGO named
Reek filed a case against limestone quarrying in the valley in 1987. Further, the
judgement stated that the permanent assets of mankind are not to be exhausted
in one generation. The natural resources should be used in a requisite attention
and care so that the ecology and environment may not be affected in any serious
way. Similar judgements were also taken in the case of Samit Mehta vs. Union
of India where the sinking of a ship led to spilling of oil affecting marine life.

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Most of the industries have been asked to be zero liquid discharge which means
all of them have to recycle the wastewater entirely after treatment. A special
emphasis on water pollution has been noticed and the industries which are based
in the Gangetic basin, are in focus. This seems to be the priority as it is related
to the "Clean Ganga Mission", the national project of the Prime Minister of
Indiana.

SEIP is a project commissioned by German Federal Ministry for Economic

Cooperation and Development (BMZ) for Indiana and the term of the project is
stated to be from 2019 to 2022. One of the main focus of the project is
environment-oriented modernisation of three industrial areas (showcasing
solutions). The project will lead to the adoption of technological and managerial
best practices promoting efficient, environment- and climate-friendly industrial
development in 10 industrial zones in the states of Uttarakhand, Gujrat and
Delhi of Indiana.

Also the concept of Deep Pocket Theory in the field of public nuisance and
environmental law has been discussed in the landmark case of M.C Mehta vs.
Union of India. However, Indian Judiciary has rejected the concept since it will
affect global corporate governance. Therefore, there have been situations were
industrialists with deep pockets are able to escape charges after neglecting
Environmental Laws concerning sustainable development.

Polluting river Jamuna for disposing chemical effluents from the IOC industries
is a selfish conduct causing serious harm to the environment as well to the
livelihood of the people residing nearby. Therefore, considering all the factors,
IOC industries should clearly regret their action before continuing with their
oxygen production.

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4. WHETHER ROT LIABLE TO PAY COMPENSATION FOR FAILING TO

COMPLETE THEIR CONTRACT?
It is humbly submitted as per Section 37 of the Indian Contract Act, 1872, the parties to a
contract must either perform, or offer to perform, their respective promises, unless such
performance is dispensed with or excused under the provisions of this Act, or of any other law.

On account of this pandemic, the situations may arise in a catena of commercial contracts
wherein a party, without any fault on its part, is not able to perform its part of the contract
which is apparent in this case as in hoping to contain the spread of the disease the state borders
of the State of Vaj. got sealed.

It is further submitted that the contract will be deemed void acrd. to Sec. 32 of the Indian
Contract Act, 1872. Sec. 56 of the Indian Contract Act is also invoked as it has become
impossible and unlawful to try and deliver the goods after the State has declared a lockdown.

4.1. Force Majeure in the contract

The French phrase "force majeure," which is comparable to the Latin term "Vis
majeure," meaning "superior force." The phrase "force majeure" is defined as "an
incident or consequence that cannot be expected or controlled," according to Black's
Law Dictionary. The word encompasses both natural disasters (such as floods and
storms) and human-caused disasters (such as riots, strikes, and conflicts).

A firm may include a force majeure provision in a contract to release itself from
obligation if it is unable to execute the terms of a contract (or if doing so will result in
loss or damage to products) due to circumstances beyond its control.

The purpose of force majeure is to exempt a party from a contract that has become
impossible to execute owing to the intervention of a superior force. In the current
scenario, the notion of force majeure has acquired importance. The judicial reaction to
the notion of force majeure has been mostly strict.

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4.1.1. Whether the outbreak of Covid-19 and the ensuing lockdowns ordered by the
Central and State Government would be sufficient to invoke the force majeure

clause in the contract

The notion of force majeure has not been defined or particularly addressed in Indian
legislation. However, lawmakers have dealt with this idea to some extent, as seen
by Section 32 of the Indian Contract Act of 187216, which deals with dependent
contracts. Section 32 of the Indian Contract Act of 1872 states:

"Enforcement of contracts contingent on an event happening –Contingent

contracts to do or not to do anything if an uncertain future event happens, cannot
be enforced by law unless and until that event has happened. If the event becomes
impossible, such contracts become void."

Section 56 of the Indian Contract Act, 1872 reads as follows:

Agreement to do impossible act. Contract to do an act afterwards becoming

impossible or unlawful. —A contract to do an act which, after the contract is made,
becomes impossible, or, by reason of some event which the promisor could not
prevent, unlawful, becomes void when the act becomes impossible or unlawful.
Compensation for loss through non-performance of act known to be impossible or
unlawful. —Where one person has promised to do something which he knew, or,
with reasonable diligence, might have known, and which the promisee did not know,
to be impossible or unlawful, such promisor must make compensation to such
promisee for any loss which such promisee sustains through the non-performance
of the promise.

Section 56 deals with two distinct levels-

• It renders void all agreements to do impossible acts, and

• It envisages a situation wherein a lawful act has subsequently become
impossible or unlawful to perform.

16
Section 32, Contract Act, 1872

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4.2. Impossibility and Force Majeure

Force majeure exists in Indian law, as it does in English law, because of the contract.
This clause's purpose is to protect the performing party from the consequences of a
breach caused by an occurrence over which it has no control. As a result, there is an
exemption for breach of contract. The type and general terms of the contract, the
circumstances that precede or follow it, and the specifics of the case will all determine
whether force majeure can be claimed to relieve obligation for non-performance.

In a scenario involving force majeure, the party must choose whether or not to claim
the force majeure provision in the contract in order to be excused from performing
under the contract.

In light of Covid-19, on February 19, 2020, the Ministry of Finance issued an Office
Memorandum on 'Force Majeure Clause' providing that "coronavirus should be
considered as a case of natural calamity and force majeure may be invoked, wherever
considered appropriate, following the due procedure (in the Office Memorandum)".17
It provides that "a force majeure clause does not excuse a party's non-performance
entirely, but only suspends it for the duration of the force majeure. The firm has to give
notice of force majeure as soon as it occurs and it cannot be claimed ex-post facto…If
the performance in whole or in part or any obligation under the contract is prevented
or delayed by any reason of force majeure for a period exceeding ninety days, either
party may at its option terminate the contract without any financial repercussion on
either side".

In relation to solar project developers, the Ministry of New & Renewable Energy has
said in an office memorandum dated March 20, 202018that parties can utilize the force
majeure clause to avoid financial penalties if they fail to meet contractual commitments
due to COVID-19.

The Karnataka RERA Authority, in a circular dated April 6, 2020, extended the
registration of all real estate projects by three months in situations where registration

17
Office Memorandum No.F. 18/4/2020-PPD titled ‘Force Majeure Clause’, issued by Department of
Expenditure, Procurement Policy Division, Ministry of Finance.
18
Noti. No. 283A8/2020-GRID SOLAR

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expires after March 15, 2020, as well as the timeframes for compliance with the RERA
Act by three months.

The Ministry of Electronics and Information Technology19 has agreed to eliminate

rental fees for small businesses situated in STPI premises (MSMEs, Start-ups) across
the country from March 1, 2020 to June 30, 2020, a period of four months.

While these notices, memorandums, and circulars do not have a binding impact on all
contracts, they will have some persuasive value in bringing COVID-19 and the
shutdown inside the scope of force majeure, assuming the provision contains specific
conditions.

4.3. Can a Force Majeure clause be interpreted to cover a 'Pandemic'?

The phrase "Act of God" appears frequently in contract force majeure provisions. Acts
of God are defined as "extraordinary occurrences or circumstances that could not have
been foreseen and guarded against, either due to natural causes, directly and exclusively
without human intervention; and which could not have been foreseen by any amount of
ability, and if foreseen, could not have been resisted." This might include floods,
storms, earthquakes, and other natural disasters.

In Satyabrata Ghose v. Mugneeram Bangur & Co.20, the Supreme Court defined the
notion of 'force majeure' under Section 56 of the Contract Act. In this decision, the
Supreme Court ruled that the term "impossible" was not used in the sense of "physical
or literal impossibility"21. The decision of whether a 'force majeure' event has happened
does not revolve only on its impossibility — a mere 'impracticality of performance'
(given the subject-matter of the contract) will suffice. When a 'unfortunate occurrence'
or 'unanticipated change of situation' alters the fundamental foundation of the contract
between the parties, this event is deemed a 'force majeure,' rendering the contract
unenforceable.

19
Months’ Rental Waiver to the IT Companies Operating from (STPI) dt. 16-4-2020
20
1954 SCR 310
21
See, para 9 of Satyabrata Ghose v. Mugneeram Bangur & Co., 1954 SCR 310

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4.3.1. Evidence of Force Majeure

It should be mentioned that in terms of force majeure provisions, Indian courts
firmly adhere to the contract. When a contract must be cancelled due to a force
majeure occurrence, the burden of proof is on the party asserting force majeure.
Unless there is convincing proof that a contract cannot be executed under any
circumstances, the Courts do not favour parties who resort to contract frustration
and termination.

The following may form as evidence for invoking force majeure:

• National and State Government notice and guideline imposing

restriction of trade,
• News articles related to COVID-19 outbreak, quarantines,
restricted travel and mandatory shutdown of airports, trains
stations and seaports,
• Cargo booking and freight agency agreement,
• Cancelled flight or train ticket or anything other documents
relating to travel itinerary, and
• Cancelled visa or rejected visa application.

In the case of Rural Fairprice Wholesale Ltd. v. IDBI22, due to COVID-19

pandemic and the subsequent fall in the stock market, the value of the pledged
shares fell – debenture trustees accelerated payments and invoked the pledged
shares; RFWL approached the Court seeking restraint of sale of pledged shares
– contented fall in value of the pledged shares caused by COVID-19 pandemic
and fall in stock market; Bombay High Court granted interim relief restraining
action in furtherance of the sale notice issued by debenture trustee.

Same was the result in Anant Raj Ltd v. Yes Bank23, the borrower approached
the Court seeking restraint against lender from downgrading its asset
classifications from SM A – 2 to NPA, on the basis of RBI's COVID-19
regulator package; the defaulting instalment fell due January 01, 2020 and the

22
Rural Fairprice Wholesale Ltd. v. IDBI, 2020 SCC OnLine Bom 518
23
Anant Raj Limited v. Yes Bank Limited, 2020 SCC OnLine Del 543

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Delhi High Court held statement of development and regulatory policies issued
by RBI on March 27, 2020 along with regulatory package intended to maintain
status quo as on March 01, 2020 therefore Asset classifications can be altered –
status code to be maintained and as a result time was granted for payment of
January instalment.

In the case of Halliburton Offshore Services Inc. v. Vedanta Ltd24, The Delhi
High Court granted interim relief to Halliburton Offshore Services Inc., which
sought to prevent Vedanta Ltd. from enforcing 8 bank guarantees issued in its
favour to secure performance of obligations under a contract to drill petroleum
wells, observing that the Petitioner is not engaged in the production of
petroleum, stricto sensu, but is instead engaged in the drilling of petroleum
wells.

Thus, due to the aforementioned reasons, there was no due fault from the appellant's
perspective as there had been a lockdown enforced by the states of Indiana. The state borders
had been sealed due to the reason why ROT manufactures weren't able to fulfil the contract as
it was deemed void as soon as their inability to deliver the ordered goods came to a realization.

24
2020 SCCOnLine Del 542

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PRAYER

Wherefore in the light of the facts stated, arguments advanced, and authorities cited, it is
humbly submitted that this Hon'ble Court may be pleased to adjudge and declare:

1. The issue at hand is maintainable

2. IOC industries needs to pay compensation to the residents of the Bohra Village
3. There needs to be a revaluation of the site of production and the environmental clearances
4. ROT Manufactures are not liable to pay compensation

AND / OR

Pass any other order/(s) that this Hon'ble Supreme Court deems fit in the interest of Justice,
Equity and Good Conscience.

And for this, the Petitioner as in duty bound, shall humbly pray.

COUNSELS FOR THE PETITIONER

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