TEAM CODE - 25

TEAM CODE - 25

SHRI I.M. NANAVATI MEMORIAL MOOT COURT COMPETITION, 2020

IN THE HON’BLE SUPREME COURT OF UNION OF ARESE

SPECIAL LEAVE PETITION S.L.P. NO._____/2020

UNDER ARTICLE 136 OF THE CONSTITUTION OF UNION OF ARESE

Central Pollution Control Board…………………………………...………………………Petitioner

1
State Pollution Control Board………………………………………………………………Petitioner
2
State of Morgalia……………………………………………………………………………Petitioner
3
Medfoil Multi-Specialty Hospital…………………………………………………………...Petitioner
4

Hospitals Association of Arese……………………………………………………………....Intervener

Versus
Mr. Satyajeet Ghosh……………………………………………………………………..…Respondent

BEFORE THE SUBMISSION TO THE HON’BLE CHIEF JUSTICE

AND HIS COMPANION JUSTICES OF
THE HON’BLE SUPREME COURT OF ARESE
 MEMORIAL ON BEHALF OF THE RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

TABLE OF CONTENTS

TABLE OF CONTENTS.........................................................................................................2

LIST OF ABBREVIATIONS..................................................................................................4

INDEX OF AUTHORITIES...................................................................................................5

STATEMENT OF JURISDICTION......................................................................................9

STATEMENT OF FACTS....................................................................................................10

STATEMENT OF ISSUES...................................................................................................12

SUMMARY OF ARGUMENTS...........................................................................................13

ARGUMENTS ADVANCED................................................................................................15

ISSUE I: WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE.. .15

[I.A] There is no substantial question of law involved....................................................15

[I.B] There has been no grave and substantial miscarriage of justice..............................16

[I.C] There exists no special circumstances in the matter................................................16

[I.D] There is a viable alternate remedy...........................................................................18

ISSUE II: WHETHER THE CURRENT PETITION IS MAINTAINABLE BEFORE

THE NATIONAL GREEN TRIBUNAL.........................................................................19

[II.A] The Petitioner has the Locus Standi to approach the Tribunal..............................19

[II.B] The Tribunal has the jurisdiction to hear the current matter..................................21

[II.B.1] The present case is of civil nature...................................................................21

[II.B.2] There exists a substantial question relating to environment...........................22

[II.B.2.i] There is a direct violation of a specific statutory environmental obligation.

..................................................................................................................................22

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[II.B.2.ii] The environmental consequence relates to a specific activity and a point

which is source of pollution.....................................................................................23

[II.B.3] It enforces a legal right relating to environment.............................................23

[II.B.4] The issues substantially arise from the Acts mentioned in the Schedule I of
the Act..........................................................................................................................24

ISSUE III: WHETHER THE PETITONERS HAVE COMPLIED WITH THE

EXISTING LAWS DEALING WITH BIO-MEDICAL WASTE.................................25

[III.A] There have been violations under statutory provisions........................................25

[III.A.1] There have been violations by Hospitals.......................................................25

[III.A.2] There have been violations by Pollution Control Boards..............................27

[III.B] There have been violations under Law of Tort.....................................................28

[III.B.1] There have been violations by Hospitals.......................................................28

[III.B.1.i] The hospitals must be seen as polluters...................................................28

[III.B.1.ii] The hospitals should be made liable for causing nuisance.....................29

[III.B.2] Violations by Pollution Control Boards.........................................................29

[III.C] Violations of Law pertaining to Transboundary Movement of Bio-Medical

Waste................................................................................................................................30

[III.C.1] Violations by Hospitals..................................................................................30

[III.C.2] Violations by Pollution Control Boards.........................................................31

ISSUE IV: WHETHER THERE HAS BEEN A GROSS VIOLATION OF HUMAN

RIGHTS..............................................................................................................................31

[IV.A] There has been a violation of human rights by violating the laws prevalent in
India..................................................................................................................................31

[IV.A.1] There has been a violation of Article 21 of the Aresean Constitution..........31

[IV.A.2] Violation of Human Rights with respect to discharge of effluents in the river.
......................................................................................................................................33

[IV.B] There has been violation of human rights by contravention of international

covenants of human rights...............................................................................................34

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PRAYER.................................................................................................................................35

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LIST OF ABBREVIATIONS

ABBREVIATION ACTUAL TERM

AIR All India Reporter

AC Appeal Case

AIHC All India High Court Cases

All Allahabad

Anr. Another

AP Andhra Pradesh

AWC Allahabad Weekly Cases

Bom Bombay

BMW Bio-medical Waste

v. Versus

Co. Company

CBMWTF Common Bio-medical Waste Management Facility

Corpn. Corporation

CPCB Central Pollution Control Board

HCF Health Care Facility

DB Division Bench

Govt. Government

NGT National Green Tribunal

SC Supreme Court

SPCB State Pollution Control Board

SLP Special Leave Petition

WP No. Writ Petition Number

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INDEX OF AUTHORITIES

A] CASES

1. A.V. Papayya Sastry v. Govt. of A.P., (2007) 4 SCC 221..............................................15

2. All India Lokadhikar Sangathan v. Govt of NCT Delhi, E 2016 SCC OnLine NGT 3192
.........................................................................................................................................29
3. Amit Maru v. Secretary, Ministry of Environment & Forest, (2014) SCC OnLine NGT
6972...........................................................................................................................18, 19
4. Ankita Sinha v. State of Maharashtra O.A. No. 510 of (2018) order dated 30.10.2018. 28
5. Arvind Gupta v. Union of India and Others, W.P. No. 393 of 2012...............................19
6. Aryavart Foundation v. Vapi Green Enviro Ltd., (2018) SCC OnLine NGT 544..........29
7. Baigana v. Dy. Collector of Consolidation, (1978) 2 SCC 461.......................................15
8. Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group, (2006) 3
SCC 434...........................................................................................................................22
9. Central India AYUSH Drugs Manufacturers Association and Others. v. State of
Maharashtra and Other, AIR 2016 Bom 261...................................................................21
10. Chunilal Mehta & Sons Ltd. v. Century Spinning & Mfg. Co. Ltd., (1962) AIR 1314
SC.....................................................................................................................................14
11. Cicily Kallarackal v Vehical factory, (2012) 8 SCC 524................................................17
12. Council for Enviro Legal Action v Union of India, (1996) 5 SCC 281..........................31
13. Council of Scientific and Industrial Research v K. G. S. Bhatt (1989) AIR (1972) (SC)
.........................................................................................................................................16
14. Court on its own Motion v. Union of India and Ors, CWP PIL191 of (2019)................32
15. Dr.J.Umarani vs The State Of Tamil Nadu, W.P. No.43370 of 2016.............................26
16. Environment Monitoring Forum and Anr. Vs. Union of India (U O I) and Ors., Writ
Petition (civil)386 of (2001)............................................................................................28
17. GJ Fernandez vs. State of Mysore & Others, AIR 1967 SC 1753...................................24
18. Goa foundation v. Ministry of Environment, Forest and Climate Change and others,
(2018) (6) ALLMR 66...............................................................................................20, 23
19. Goa foundation v. Ministry of Environment, Forest and Climate Change and others,
(2018) 6 ALLMR 66........................................................................................................19

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20. Haat Supreme Wastech Pvt. Ltd. &Ors. v. State of Haryana &Ors., (2014) SCC OnLine
NGT 6811..................................................................................................................16, 28
21. Hero Vinoth v. Seshammal (2006) AIR 2234 SC...........................................................14
22. Indian Handicrafts Emporium and others vs. Union of India and others, (2003) 7 SCC
589...................................................................................................................................30
23. Indira Nagar Jan Vikas Samiti vs State of Uttarakhand And Others, Writ Petition (PIL)
No.40 of 2017..................................................................................................................25
24. J. C. Galstaun v Dunia Lal Seal, [1905] 9 CWN 612......................................................28
25. J. Mehta v. Union of India and others, M.A. Nos. 507, 509, 644 and 649/2013, in
Application No. 88 of 2013 of the National Green Tribunal (PB)..................................18
26. J.P. Builders v. A. Ramadas Rao, (2011) 1 SCC 429......................................................17
27. Kalpavriksh v Union Of India, (2013) SCC OnLine NGT 1164.....................................23
28. Karanpura Development Co. Ltd. v. K. Narain Singh, (1962) AIR 429.........................14
29. Kehar Singh v State of Haryana, (2013) 1 All India NGT Reporter, Delhi 556.............19
30. Laxmi Suiting and Others. v. State of Rajasthan and Others, (2014) SCC OnLine NGT
1419.................................................................................................................................24
31. M. C Mehta v. Kamal Nath, AIR 2002 SC 1997.......................................................27, 32
32. M.C. Mehta and Ors. vs. Union of India and Ors,1988 AIR 1115..................................33
33. Maitree Sansad vs State Of Orissa And Ors (2007) Supp. 1 OLR246............................27
34. Meet Singh v. State of Punjab, (1980) 3 SCC 291..........................................................16
35. Ms. Ankita Sinha v. State of Maharashtra O.A. No. 510 of (2018), Date of Order
30.10.2018.......................................................................................................................29
36. Nirma Ltd. v. Lurgi Lentjes Energietechnik Gmbh, AIR 2002 SC 3695........................17
37. Pritam Singh v. The State, 1950 AIR 169.................................................................15, 16
38. Raj Rajendra Sardar Maloji Marsingh Rao Shitolev v. Sri Shankar Saran and Ors., AIR
1962 SC 173.....................................................................................................................17
39. S.B. Minerals v. MSPL Ltd., AIR (2010) SC 1137.........................................................17
40. Secretary, State of Karnataka v. Umadevi , (2006) 4 SCC 1...........................................14
41. Sobha Singh v. State of Punjab (2018) SCC OnLine NGT 346......................................29
42. State of H. P. v Kailash Chand Mahajan (1992) AIR 1277 (SC)....................................16
43. State of J&K v. Hazara Singh, 1980 Supp SCC 641.......................................................15
44. State of U.P. v. Ram Manorath (1972) 3 SCC 215 (SC).................................................16
45. Subhash Kumar v State of Bihar, AIR (1991) SC 420..............................................31, 33

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46. Sudarsan Das v. State of West Bengal O.A. No. 173 of (2018)......................................29

47. Sukhdev Vihar Resident's Welfare Association v. State of Delhi (2018) SCC OnLine
NGT 1681........................................................................................................................28
48. Sunil Kumar Samanta v. West Bengal, (2014) 2 All India NGT Reporter 5 (Delhi) 250
.........................................................................................................................................20
49. Suo Motu v Vatva Industries Association , AIR (2000) GUJ 33....................................32
50. Threat to Life Arising Out of Coal Mining in South Garo Hills district v. State of
Meghalaya O.A. No. 110 (THC) of (2012), Date of Order 04.01.2019..........................29
51. Union of India v. Kishorilal Gupta and Bros., AIR 1959 SC 1362.................................17
52. Union of India v. Rajeswari & Co. (1986) AIR 1748 (SC).............................................16
53. Uttarsanda Gram Panchayat and Ors. vs. State of Gujarat and Ors (2015) SCC
OnLineGuj 2038..............................................................................................................25
54. Visakha v. State of Rajasthan (1997) 6 SCC 241............................................................30

B] STATUTES

1. The Constitution of India, 1950.

2. Environment Protection Act, 1986, No. 29, Acts of Parliament, 2010.
3. The National Green Tribunal Act, 2010, No. 19, Acts of Parliament, 2010.
4. The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860.

C] RULES

1. The Bio-medical Waste Management Rules, 2016.

D] BOOKS

1. M.P JAIN, INDIAN CONSTITUTIONAL LAW (16th ed. 2011).

2. SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA ,

(2nd Ed., OUP India 2002).

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E]REPORTS

1. Anjali Acharya, Impact of Biomedical Waste on City Environment: Case Study of Pune,
India, IOSR Journal of Applied Chemistry (IOSR-JAC).
2. Inter-Ministerial Delegation to Participate in Basel, Rotterdam, Stockholm Conventions
in Geneva.
3. World Health Organisation, Health Impacts of Health Care Waste.

F] INTERNATIONAL CONVENTION

1. THE BASEL CONVENTION ON THE CONTROL OF TRANSBOUNDARY

MOVEMENTS OF HAZARDOUS WASTES AND THEIR DISPOSAL.

G] ONLINE DATABASES

1. SCC Online (www.scconline.in)

2. JSTOR (www.jstor.org)
3. Lexis Nexis Academics (www.lexisnexisacademics.com)

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STATEMENT OF JURISDICTION

The Respondent have invoked the jurisdiction of this Hon’ble Supreme Court under Article
136 of the Constitution of Arese:

Article 136 of the Constitution of Arese reads as:

“136. Special leave to appeal by the Supreme Court:

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in

its discretion, grant special leave to appeal from any judgment,

decree, determination, sentence or order in any cause or matter

passed or made by any court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination,

sentence or order passed or made by any court or tribunal constituted

by or under any law relating to the Armed Forces.”

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STATEMENT OF FACTS

INTRODUCTION

Arese is a South Asian Country which consists of 29 states and has a constantly increasing
population. Morgalia is the capital of Arese and is an historic city. Arese has a written
Constitution and a quasi-federal system of Government with a strong centralizing tendency
and makes the provision of healthcare the responsibility of the state governments including
the primary duties such as improving the public health and raising the level of nutrition.

PARTIES TO THE DISPUTE

A. Petitioners-
1) Central Pollution Control Board

2) State Pollution Control Board

3) State of Morgalia (through the Collector)

4) Medfoil Multi-Specialty Hospital

B. Intervener-

1) Hospitals Association of Arese

C. Respondent-

1) Mr. Satyajeet Ghosh

CAUSE OF ACTION

(1) A private hospital named “Medfoil Multi-Specialty Hospital” was established in

May, 2010 and was registered under the Indian Trusts Act, with the capacity of 52
beds and a team of doctors and nurses.
(2) The Respondent, Mr. Satyajeet Ghosh, was admitted to the Medfoil Hospital for
treatment. During his stay there, he observed that the bio-medical waste generated

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was neither being segregated properly nor being disposed regularly, posing a danger
to the health of the community. Further, it is alleged that not just the Hospital but
Government as well as the Pollution Control Boards were extremely negligent and
callous with regards to proper disposal of bio-medical waste.
(3) On the basis of the report issued by the Authorities regarding the bio-medical waste
disposal system of the above-mentioned hospital and other state hospitals, the
information obtained by the Respondent under the Right to Information, 2005, the
Respondent filed a case at National Green Tribunal.
(4) Contesting the allegations of the Respondent, the Petitioners claimed to be committed
to proper disposal of bio-medical waste. The NGT, considering submissions from
both sides ordered every hospital to submit their annual compliance reports regarding
such disposal of waste as well as directed the CPCB and the Med-foil Multi-
Specialty Hospital to pay compensation of 1 crore each.

CURRENT STATUS

Aggrieved by the decision of the NGT, the Petitioners filed an appeal under Article 136 of
the Constitution of Arese to the Supreme Court. Since the impugned order concerned various
hospitals across the country, several hospitals have intervened in the matter. The Intervention
Application has been granted.

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STATEMENT OF ISSUES

ISSUE 1: WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE.

ISSUE 2: WHETHER THE CURRENT PETITION IS MAINTAINABLE BEFORE THE NATIONAL

GREEN TRIBUNAL.

ISSUE 3: WHETHER THE PETITIONERS HAVE COMPLIED WITH THE EXISTING LAWS
DEALING WITH BIO-MEDICAL WASTE.

ISSUE 4: WHETHER THERE HAS BEEN A GROSS VIOLATION OF HUMAN RIGHTS.

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SUMMARY OF ARGUMENTS

I. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE.

It is humbly contended before this Hon’ble Court that the Special Leave Petition is
not maintainable as there is no substantial question of law involved in the present
matter. Further, no grave and substantial injustice was caused due to the judgement as
the NGT took cognizance of the violations committed and have passed appropriate
orders. There also exists no special circumstances as the judgement is within the
jurisdiction and the given decision is standard, complying with precedents with
similar violations. The respondents also have a viable alternate remedy available
under section 22 of the NGT Act.

II. WHETHER THE CURRENT PETITION IS MAINTAINABLE BEFORE THE

NATIONAL GREEN TRIBUNAL.

It is humbly contended before this hon’ble court that the application filed before the
National Green Tribunal by the Respondents is maintainable as the respondents have
the requisite locus standi to approach the tribunal. The tribunal also has the
jurisdiction to entertain the application filed under section 14 of the NGT act, 2010 as
the matter is of civil nature and raises a substantial question relating to environment
enforcing a legal right of the respondent. Furthermore, it also arises out of the
implementation of the environment act, 1986 which is specified under Schedule I of
the NGT act, 2010 as required under section 14(1) of the act.

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III. WHETHER THE PETITIONERS HAVE COMPLIED WITH THE EXISTING

LAWS DEALING WITH BIO-MEDICAL WASTE.

It is humbly contended before this Hon’ble Court that the Respondents identified
violations on part of the Petitioner including the PCBs and the Med foil hospital come
under the purview of independent statutes such as the Bio medical Waste management
Rules of 2016, Environment Protection Act, 1986, Precautionary Principle and the
Polluters Principle under the NGT Act, 2010 and International Conventions. The
common law of torts which is the parent of the environment law in India; i.e., Public
Nuisance and Negligence is also constituted as per actions of the Petitioner as the
‘duty of care’ is imposed by the operation of the statutes which the Petitioners have
failed to comply with.

IV. WHETHER THERE HAS BEEN A GROSS VIOLATION OF HUMAN

RIGHTS.

It is humbly contended before this Hon’ble Court that the Petitioners have caused a
gross violation of Rights enshrined in the Constitution of Arese under Article 21.
There is a Constitutional duty on the State to provide the citizens with a clean and
healthy environment, which is a fundamental right of the citizens, which the
Petitioners, owing to their negligence, have flouted irreparably by the mishandling of
Bio Medical Waste and unscientific dumping of the same. The Petitioners have also
flouted international conventions that link human rights with the environment such as
the Stockholm and the Rio Declaration.

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ARGUMENTS ADVANCED

ISSUE I: WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE.

It is contended before this Hon’ble Court that the Special Leave Petition filed under Art. 136
is not maintainable. This contention will be dealt in a four-fold manner, [I.A] there is no
substantial question of law involved; [I.B] there has been no grave and substantial
miscarriage of justice; [I.C] there are no exceptional and special circumstances and [I.D]
there is a viable alternative remedy.

[I.A] There is no substantial question of law involved.

1. For a Special Leave Petition to be maintainable, it should have a substantial question of

law involved.1 This right of appeal is neither a natural nor an inherent right attached to the
litigation.2 Being a substantive statutory right, it has to be regulated in accordance with
law in force at the relevant time.

2. A Constitution Bench of this Court observed3 that a question of law would qualify as a

substantial question if it is a matter of general public importance or if it directly and
substantially affects the rights of the parties. And if so, whether it is an open question not
finally settled by the highest court.

3. In the present case, the question is whether the Petitioners have violated the Bio-medical
Waste Management Rules, 2016. It is contended that the appeal filed by the Petitioner
does not involve any substantial question of law rather it involves pure question of fact
and hence, is not maintainable. It is an established principle that questions of fact cannot
be permitted.4

1
Secretary, State of Karnataka v. Umadevi , (2006) 4 SCC 1.
2
Hero Vinoth v. Seshammal (2006) AIR 2234 SC.
3
Chunilal Mehta & Sons Ltd. v. Century Spinning & Mfg. Co. Ltd., (1962) AIR 1314 SC.
4
Karanpura Development Co. Ltd. v. K. Narain Singh, (1962) AIR 429.

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[I.B] There has been no grave and substantial miscarriage of justice.

4. It is contended that the powers of this Court cannot be invoked sans manifest injustice. 5
Intervention of this Hon’ble Court is required only when there has been grave and
substantial miscarriage of justice.6

5. This injustice should be reflected through the facts of the case which must present
features of sufficient gravity to warrant a review of the decision appealed against. 7 In the
present case, there has been no grave and substantial injustice. The National Green
Tribunal has exercised its powers in accordance with the law8 and set legal principles9 in
conjunction with the relevant facts of the case and thus had a valid and material basis for
its judgement.

6. The petitioners have committed grave violations which involve improper disposal of
infectious bio-medical waste in the open10 and even in water bodies11, increasing the
danger of the public being afflicted by dangerous diseases. Further, there has been a
lackadaisical attitude on the part of the authorities in formulating laws to prevent such
violations and implementation of the existing laws. All such violations are enumerated
under the Bio-medical Waste (Management and Handling) Rules, 2016.

7. Taking cognizance of such gross violations, the National Green Tribunal, an authority
with competent jurisdiction12 has gone into the evidence of the case and has adequately
directed the petitioners to pay compensation for the same. Such an order is in consonance
with the law and is required in the name of justice to undo the wrongs that have been
committed.

8. Therefore, it is humbly submitted that no grave and substantial miscarriage of justice has
been done in the passage of such an order against the petitioners.

5
Baigana v. Dy. Collector of Consolidation, (1978) 2 SCC 461; A.V. Papayya Sastry v. Govt. of A.P., (2007)
4 SCC 221.
6
State of J&K v. Hazara Singh, (1980) Supp SCC 641.
7
Pritam Singh v. The State, 1950 AIR 169.
8
National Green Tribunal Act, 2010, No. 19, Acts of Parliament, 2010.
9
National Green Tribunal Act, 2010, No. 19, Acts of Parliament, 2010, § 20.
10
¶ 3, Moot Proposition.
11
¶ 5, Moot Proposition.
12
National Green Tribunal Act, 2010, No. 19, Acts of Parliament, 2010, § 14(1).

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[I.C] There exists no special circumstances in the matter.

9. It is contended before the Hon’ble Court that there were no special circumstances
surrounding the case at hand to warrant a remedy under Article 136. Special Leave
Petition is a power conferred upon the Supreme Court which is of “residual nature” and is
a “discretionary power”.13

10. Special leave will not be granted when there is no failure of justice or when substantial
justice is done, though the decision suffers from some legal errors.14 Special
circumstances have to be understood in contradiction to the general or ordinary that is
distinguished by some unusual quality, and therefore anything which is common to a
large class or is governed by the same statute cannot be said to be special.15

11. The matter at hand involves violation of rules of waste disposal, enumerated in the Bio-
medical Waste Management Rules, 2016 by the Petitioners, and they have been
adequately ordered to pay compensation in accordance with law, established by
precedents16 and the Environment (Protection) Act, 1986. It is contended by the
respondent that the petitioner must show that exceptional circumstances exists and
without interference, substantial and grave injustice will result. Only in such cases,
manifest in special circumstances, the court would exercise its discretionary and
overriding powers under Art. 136. 17

12. It has been held that except when there has been an illegality or an irregularity of
procedure or a violation of principle of natural justice resulting in the absence of a fair
trial18 or gross miscarriage of justice, the Supreme Court does not permit a third review of
evidence with regard to question of fact.19

13. In the present case, there exists no irregularity or illegality of procedure as the National
Green Tribunal rightfully exercised jurisdiction under Section 14(1) of the Act. 20 It is a
settled law that the Tribunal shall have jurisdiction over all civil cases where a substantial
question relating to the environment is involved. As the case relates to implementation of

13
Pritam Singh v. The State, SC (1950) AIR 169.
14
Council of Scientific and Industrial Research v. K. G. S. Bhatt (1989) AIR (1972) (SC); State of H. P. v.
Kailash Chand Mahajan (1992) AIR 1277 (SC).
15
Meet Singh v. State of Punjab, (1980) 3 SCC 291.
16
Haat Supreme Wastech Pvt. Ltd. & Ors. v. State of Haryana &Ors., (2014) SCC OnLine NGT 6811.
17
M.P Jain, Indian Constitutional Law, (16th ed. 2011).
18
Union of India v. Rajeswari & Co. (1986) AIR 1748 (SC).
19
State of U.P. v. Ram Manorath (1972) 3 SCC 215 (SC).
20
The National Green Tribunal Act, 2010.

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rules formulated under the Environment Protection Act, 1986, it comes within the
jurisdiction of the National Green Tribunal.

14. In the absence of any procedural irregularity, a standard judgement in the attempt to
penalise violations of statutory rules has been issued, eliminating any manifestation of
special circumstances. It is therefore, submitted that the case does not portray any special
circumstances to invite remedy under Article 136 and is liable to be dismissed.

[I.D] There is a viable alternate remedy available.

15. It is humbly contended before this Hon’ble Court that the Respondent has not availed any
equally efficacious alternative remedy that exists. Before invoking the jurisdiction of the
Hon’ble Supreme Court under Article 136 the aggrieved party must exhaust any remedy
which may be available under the law.21

16. The Apex Court has already been overburdened with matters other than over which it
exercises original jurisdiction. It has, therefore imposed on itself restriction that in
ordinary circumstances, the aggrieved party must exhaust other available alternate
remedies before filing an SLP.22 The Respondent has an alternate remedy available to him
under Section 22 of the National Green Tribunal Act, 2010. Once the legislature has
provided for a statutory appeal to a higher court, it cannot be proper exercise of
jurisdiction to permit the parties to bypass the statutory appeal to such higher court and
entertain petitions.23

17. Section 22 of the abovementioned Act, allows an aggrieved person to file an appeal
before the Supreme Court against any award, decision or order of the Tribunal. Even
though, the institution of appeal is the same under Section 22 and Article 136, detailing
the provision of Special Leave to Appeal, it has been proved by the above sub-issues that
no criteria for maintainability of an SLP has been fulfilled by this case. Further the
existence of a remedy under the National Green Tribunal Act, is further a ground not to
allow such an appeal. It has been well established by precedents that the existence of an
alternative remedy brought to the notice of this Hon’ble Court can allow it to refuse a
grant of special leave.24

21
J.P. Builders v. A. Ramadas Rao, (2011) 1 SCC 429.
22
Nirma Ltd. v. Lurgi Lentjes Energietechnik Gmbh, AIR 2002 SC 3695.
23
Cicily Kallarackal v. Vehicle factory, (2012) 8 SCC 524.
24
Union of India v. Kishorilal Gupta and Bros., AIR 1959 SC 1362; S.B. Minerals v. MSPL Ltd., AIR (2010)
SC 1137; Raj Rajendra Sardar Maloji Marsingh Rao Shitolev v. Sri Shankar Saran and Ors., AIR 1962 SC 173.

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Therefore, it is humbly submitted before this Hon’ble court that leave to the present petition
under Article 136 should not be granted as there exists no substantial question of law or any
special circumstances and that there is no grave injustice caused. Further, existence of a
viable alternate remedy further bars the maintainability of such a petition.

ISSUE II: WHETHER THE CURRENT PETITION IS MAINTAINABLE BEFORE

THE NATIONAL GREEN TRIBUNAL.

It is contended that the case filed by the Respondent is maintainable before the Hon’ble
National Green Tribunal as [II.A] the Respondent had the locus standi to file an Application
and [II.B] the Tribunal had the required jurisdiction to hear the instant matter.

[II.A] The Petitioner has the Locus Standi to approach the Tribunal.

18. Any person approaching the judiciary has to show sufficient locus standi. Locus standi is
the right to bring an action, to be heard in court, or to address the Court on a matter before
it.

19. It is contended that cause of action is not restricted to 'in personam' but is an action
available to any person in terms of Sec. 14 of the Act. 25 Every citizen is entitled to a clean
and decent environment in terms of Article 21 of the Constitution. In a case before NGT
it was held that if any person can raise environmental dispute regardless of whether he is
personally affected due to the wrongful act of wrong doer/polluter or violator of
environmental Law/Norms.”26

20. If we read the Section 1427 in comparison with the Section 1628, which refers to ‘any
person aggrieved’ in contrast to the omission of the same phrase from Section 14. Here
the legislative intent can be interpreted as to widening the jurisdiction so that any person
can file an application for the protection of environment. It is not referable to any person
aggrieved by any kind of order as such, but may be a person aggrieved due to loss of
environment, breach of environmental norms or like causes.29

21. Arguendo, even if we consider that an aggrieved person can only approach this Tribunal,
it is not required that the person should be directly or personally affected by such damage

25
J. Mehta v. Union of India and others, M.A. Nos. 507, 509, 644 and 649/2013, in Application No. 88 of 2013
of the National Green Tribunal (PB) .
26
Amit Maru v. Secretary, Ministry of Environment & Forest, (2014) SCC OnLine NGT 6972.
27
The National Green Tribunal Act, 2010, No. 19, Acts of Parliament, 2010, § 14.
28
The National Green Tribunal Act, 2010, No. 19, Acts of Parliament, 2010, § 16.
29
Id.

20
 MEMORIAL ON BEHALF OF THE RESPONDENT

but just be able to prove that such matter affects environment can be ‘aggrieved person’
under Section 14. As the constitution makes it the duty of the citizen under Part IVA 30 to
protect the environment and in furtherance of his right to life and clean environment, it
becomes imperative for the respondent to file an application seeking redressal from the
Hon’ble tribunal. Hence, anyone who has bonafide intention to protect environment can
approach the Tribunal for the purpose of protection of such right.31

22. The contention as to no actual harm has been suffered by the respondent is not consistent
with the provisions of the Act. Section 14(1) which also has to be read with the principles
mentioned under Section 20 of the National Green Tribunal Act, 2010 i.e., Precautionary
principle, Polluter Pays and sustainable development. On the combined reading of
Section 14 with the Precautionary Principle under section 20, here even anticipated action
ought to be considered as 'substantial question relating to environment’. 32 Inaction in the
facts and circumstances of a given case could itself be a violation of the precautionary
principle, and therefore, bring it within the ambit of jurisdiction of the Tribunal, as
defined under the National Green Tribunal Act.33

23. Hence, on the application of precautionary principle, direct harm on the petitioner is not
necessary as environmental degradation is indirectly affecting every individual. The
nexus with environment can be direct or even indirect. 34 Though as it has been held, he
shall not be totally alien. In other words, if it is demonstrated that the Petitioner is a
person interested in protection of environment, or at least restitution of environment, then
prima facie, he has locus standi to maintain the Application.35

24. Only barrier is that his action shall not be baseless, ill-motivated or that outcome of
vendetta. In the present case, it is very clear from the facts that the petitioner being a
public spirited person and associated with many social organizations 36, he is a citizen
interested in protecting environment; therefore, he have locus standi to maintain
application as there is no material on record to show that application was ill-motivated.
Hence, the respondent has sufficient locus standi to approach the tribunal.

30
INDIA CONST., Part IVA, 1950.
31
Amit Maru v. Secretary, Ministry of Environment & Forest, (2014) SCC OnLine NGT 6972.
32
Goa foundation v. Ministry of Environment, Forest and Climate Change and others, (2018) 6 ALLMR 66.
33
Arvind Gupta v. Union of India and Others, W.P. No. 393 of 2012.
34
Kehar Singh v. State of Haryana, (2013) 1 All India NGT Reporter, Delhi 556.
35
Arvind Gupta v. Union of India and Others, W.P. No. 393 of 2012.
36
¶ 6, Moot Proposition.

21
 MEMORIAL ON BEHALF OF THE RESPONDENT

[II.B] The Tribunal has the jurisdiction to hear the current matter.

25. The National Green Tribunal Act, 2010 is a self-contained code.37 The Act provides for
the forum, procedure, limitation, functions and powers of the Tribunal. 38 The said
Tribunal has Original as well as Appellate jurisdiction given under Section 14 and
Section 16 respectively. The present matter deals with the original jurisdiction of the
National Green Tribunal which is given under Section 14 of the National Green Tribunal
Act, 2010.

26. Section 14 of the NGT Act vests jurisdiction in the Tribunal in relation to the following:
(1) all civil cases (2) where a substantial question in relation to environment is raised (3)
enforcement of a legal right relating to environment (4) it should arise out of the
implementation of the enactments specified in Schedule-I to the National Green
TribunalAct, 2010.

[II.B.1] The present case is of civil nature.

27. The expression 'civil cases' used under Section 14(1) of the National Green Tribunal Act
has to be understood in contradistinction to 'criminal cases’. This expression has to be
construed liberally as a variety of cases of civil nature could arise which would be raising
a substantial question of environment and thus would be triable by the Tribunal.39

28. Reference to Section 15 of the National Green Tribunal Act at this juncture would be
appropriate. The legislature has specifically vested the Tribunal with the powers of
granting reliefs like compensation to the victims of pollution and other environmental
damage, for restitution of property damaged and for restitution of the environment for
such area or areas.

29. Once Section 14 is read with the provisions of Section 15, it can, without doubt, be
concluded that the expression 'all civil cases' is an expression of wide magnitude and
would take within its ambit cases where a substantial question or prayer relating to
environment is raised before the Tribunal. 40Since the present case involves prayer of
substantial question relating to environment and also prays for reliefs of compensation for
the environmental damage which has been done. Hence, the present case is of civil nature
and is triable by the Hon’ble Tribunal.

37
Sunil Kumar Samanta v. West Bengal, (2014) 2 All India NGT Reporter 5 (Delhi) 250.
38
Id.
39
Goa foundation v. Ministry of Environment, Forest and Climate Change and others, (2018) (6) ALLMR 66.
40
Id.

22
 MEMORIAL ON BEHALF OF THE RESPONDENT

[II.B.2] There exists a substantial question relating to environment.

30. The substantial question relating to environment has been defined under the Act41. Section
2(m) defines substantial question relating to environment. This definition is wide and
inclusive.42 It stipulates that (i) if there is direct violation of specific statutory
environmental obligation or then (ii) environmental consequences relating to a specific
activity or a point source of pollution, will amount to substantial question relating to
environment.

[II.B.2.i] There is a direct violation of a specific statutory environmental obligation.

31. To determine whether there is a substantial question related to environment, there should
be a direct violation of a specific statutory environmental obligation by a person which
includes that (i) it must affect the community at large other than an individual or group of
individuals or (ii) the gravity of damage to environment or property substantially, or (iii)
the damage to public health is broadly measurable.43

32. Firstly, there are number of instances where improper disposal of bio-medical waste can
be seen. One such is the case of Community health Centre at Shyampur where thousands
of residents depend on health security but their life has been put to risk and the
community is affected at large.44 Secondly, as it is well-known that such bio-medical
waste needs special handling and is of highly infectious and hazardous nature if not
disposed in the scientific manner.45 Hence, the gravity of damage that can occur is
substantial. Thirdly, the bio-medical waste that is scattered in the open has spread into the
river Jalshakti and usage of outdated, expired and waste materials which caused the death
of 15 patients undoubtedly results in damage to public health. 46 Hence, it is clear from the
aforementioned instances that there exists a direct violation of statutory obligation
relating to environment.

41
National Green Tribunal Act, 2010, No. 19, Acts of Parliament, 2010, § 2(m).
42
Central India AYUSH Drugs Manufacturers Association and Others. v. State of Maharashtra and Other, AIR
2016 Bom 261 .
43
National Green Tribunal Act, 2010, No. 19, Acts of Parliament, 2010, § 2(m).
44
¶ 11, Moot Proposition.
45
¶ 3, Moot Proposition.
46
¶ 5, Moot Proposition.

23
 MEMORIAL ON BEHALF OF THE RESPONDENT

[II.B.2.ii] The environmental consequence relates to a specific activity and a point which is
source of pollution.

33. To prove that there is a substantial question of environment, it is necessary to show the
source or the activity which leads to destruction to the environment. 47 In the present case,
the following reasons show that the environmental consequence relates to a specific
activity and a point source of pollution. Environment as defined under Section 2(c) 48,
includes the inter-relationship which exists among human beings and other living
creatures. The activity of not segregating bio-medical waste in colour coded bags and not
dumping them in the proper method prescribed under the Bio-Medical Waste
Management Rules, 2016 amounts to degradation of environment. 49 The health care
facilities, nursing homes and hospitals who dispose the bio-medical waste without any
segregation or dumping them with other chemical, plastic and solid wastes in the open
which is affecting the health of human beings but also of the animals. These sources have
adverse effect and eventually lead to the pollution of environment.

34. Hence, there exists a substantial question relating to environment as there is a violation of
statutory violation of environmental obligation and the consequences relate to a specific
activity and point source of pollution.

[II.B.3] It enforces a legal right relating to environment.

35. A legal right is which the court of law can enforce against persons and also against the
government. A legal right is an interest accepted and protected by law and hence all the
fundamental rights which have been given to us by the constitution and is enforceable by
law are also legal rights.

36. Here, in the present matter, respondent being a citizen of Arese whose laws are pari
materia with the laws of Union of India50, inherits the right to life and liberty given under
Article 2151. In this article, the meaning of the word life includes the right to live in fair
and reasonable conditions, right to rehabilitation after release, right to livelihood by legal
means and decent environment. Thus, Article 21 in its legal interpretation has expanded
to include the principles environmental law and environmental degradation. 52 Here, the

47
The National Green Tribunal Act, 2010, No. 19, Acts of Parliament, 2010, § 2(m).
48
The National Green Tribunal Act, 2010, No. 19, Acts of Parliament, 2010, § 2(m).
49
¶ 12, Moot Proposition.
50
Note, page 7, Moot Proposition.
51
INDIA CONST., art 21.
52
Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group, (2006) 3 SCC 434.

24
 MEMORIAL ON BEHALF OF THE RESPONDENT

respondent has the legal right to life and liberty which includes right to clean environment
which is enforceable under Section 14 of the NGT Act.

37. Hence, the respondent can file the application for enforcing his existing legal right of
right to clean environment before the Hon’ble National Green Tribunal.

[II.B.4] The issues substantially arise from the Acts mentioned in the Schedule I of the
Act.

38. The jurisdiction conferred under Section 14 of the National Green Tribunal Act, 2010
lays down a number of essentials which needs to be fulfilled in order to have jurisdiction
over a matter. Even if one of the essentials is not satisfied, the Tribunal loses the
administration over such dispute. One of the most important essential is that the issue
must arise from the given Schedule53.

39. The Schedule I of the concerned Act54 lists out seven enactments to which the Tribunal
shall have jurisdiction and it may not have jurisdiction to entertain and decide such
proceedings even when all the above nexus is established, as there is still another sine qua
non for exercise of the jurisdiction by the Tribunal, that is, it must arise or be relatable to
the implementation of the Acts specified in Schedule I of the National Green Tribunal
Act.

40. It is not necessary that it should arise out of those seven enactments. As it was held in
Goa Foundation v. Union of India55 that the preamble of the act56 is an indicator of the
jurisdiction of the Tribunal and by using the words “for matters connected therewith or
incidental thereto”, it has expanded its jurisdiction. The preamble certainly acts as a
precept to gather the legislative intention and how the object of the act can be achieved 57
and since the provision58 itself clearly says that the question should be from the
implementation of the enacted acts and should not necessarily be directly under those
acts.59

41. Here, the most significant expression in this entire gamut of law is the expression
'implementation'.60 The expression 'implementation' appears under different Acts even
53
The National Green Tribunal Act, 2010, No. 19, Acts of Parliament, 2010, Schedule I.
54
The National Green Tribunal Act, 2010, No. 19, Acts of Parliament, 2010, Schedule I.
55
Goa foundation v. Ministry of Environment, Forest and Climate Change and others, (2018) (6) ALLMR 66.
56
The National Green Tribunal Act, 2010, No. 19, Acts of Parliament, 2010.
57
Goa foundation v. Ministry of Environment, Forest and Climate Change and others, (2018) (6) ALLMR 66.
58
National Green Tribunal Act, 2010, No. 19, Acts of Parliament, 2010§ 14(1).
59
Themrei Tuithung & Others. v. State of Manipur & Others, (2013) SCC OnLine NGT 868.
60
Kalpavriksh v. Union of India, (2013) SCC OnLine NGT 1164.

25
 MEMORIAL ON BEHALF OF THE RESPONDENT

under environmental laws. ‘Implementation’, therefore, within the provisions of Section

14 of the National Green Tribunal Act would relate to implementation of the various
provisions, rules, regulations and the notifications issued in exercise of subordinate or
delegated legislation with regard to any or all of the Acts stated in Schedule I of the
National Green Tribunal Act.61

42. Hence, as the current matter deals with Bio-Medical Waste Management Rules, 2016
issued by the government exercising the powers conferred by Section 6, 8 and 25 of the
Environment Protection Act, 1986 and the said Act has been enlisted within the Schedule
1 of the National Green Tribunal Act, the issue arises from the implementation of the
enactments given under the Schedule-I of the National Green Tribunal Act.

Therefore, it is humbly submitted to this Hon’ble Court that on a plain reading of Section 14
of the Act would irrefutably justify that Tribunal has been conferred with the jurisdiction over
all civil courts where a substantial question relating to environment and if the case falls under
these categories then the locus of the petitioner can hardly be questioned.62

ISSUE III: WHETHER THE PETITONERS HAVE COMPLIED WITH THE

EXISTING LAWS DEALING WITH BIO-MEDICAL WASTE.

It is humbly contended that [III.A] the enforceability of the rules is legitimate and presents
instances of the upholding of the penalty on grounds of violation of the Rules of 2016 which
the Pollution Control Boards and the Med-Foil hospital have violated. It is also contended
that [III.B] violations under Common Law have been constituted, thus establishing that the
sum ordered by the Hon'ble NGT is fitting.  The Counsel humbly submits whilst justifying
that the [III.C] Transboundary Movement of Bio-Medical Waste is a major violation of the
existing laws on the subject. 

[III.A] There have been violations under statutory provisions.

[III.A.1] There have been violations by Hospitals.

43. It has been a principle that in order for executive instructions to have the force of
statutory rules it must be shown that they have been issued either under the authority
conferred on the Government by some statute or under some provision of the Constitution
providing therefore.63 The Bio-medical Waste (Management and Handling) Rules, 2016
61
Kalpavriksh v. Union of India, (2013) SCC OnLine NGT 1164.
62
Laxmi Suiting and Others. v. State of Rajasthan and Others, (2014) SCC OnLine NGT 1419.
63
GJ Fernandez vs. State of Mysore & Others, AIR 1967 SC 1753.

26
 MEMORIAL ON BEHALF OF THE RESPONDENT

were made by the Central Government in the exercise of its powers under Sections 6, 8
and 25 of the Environment Protection Act, 1986 making it mandatory in nature.
Therefore, these are executive instructions backed by statutory authority and thus, the
claim of the Petitioners that such rules are of non-mandatory nature is false.

44. As per the present facts regarding the dumping of Bio-Medical Waste in the river
Jalshakti in Arese64, a parallel must be drawn with the decided case of Indira Nagar Jan
Vikas Samiti vs State of Uttarakhand And Others 65, where the bio-medical waste was also
dumped near one Gola River which was held to be a serious breach of the Bio-Medical
Waste Management Rules, 2016.

45. As per the Bio Medical Waste (Management and Handling) Rules, 2016, prevalent in
Arese, the microbiological and biotechnical wastes are to be treated by the methods
prescribed in the Schedule 166 by local autoclaving/micro waving/incineration. However,
in the state of Morgalia, such toxic waste is disposed of negligently which is a clear
violation of Rule 8(2) which states that bio-medical waste shall be segregated into
containers or bags67. Such waste is being collected by rag pickers, or is dumped without
precautionary measures at dumping sites. Such toxic waste is also unsegregated, pooled
with other waste68which is a clear violation of Rule 4(b)69. Another instance is that of
open trucks carrying unsegregated rotten waste in the State of Morgalia 70 is a violation of
Rule 8(5)71 which states that the transportation of BMW can only be done in the vehicles
having label as provided in part ‘A’ of the Schedule IV along with necessary information
as specified in part ‘B’ of the Schedule IV.

46. In a case72it was held that the improper management of the waste generated in health care
facilities causes a direct health impact on the community, the health care workers and on
the environment. The indiscriminate disposal of the BMW or hospital waste that Med-
Foil Hospital exposed to the public in the vicinity to such waste posed a serious threat to
the public environment and to public health that requires specific treatment and
management prior to its final disposal. IT must be mentioned that the waste which was
64
¶ 5, Moot Proposition.
65
Indira Nagar Jan Vikas Samiti vs State of Uttarakhand And Others,Writ Petition (PIL) No.40 of 2017.
66
The Bio-medical Waste Management Rules, 2016, Rule 5.
67
The Bio-medical Waste Management Rules, 2016.
68
¶ 12, Moot Compromis
69
The Bio-medical Waste Management Rules, 2016.
70
¶ 12, Moot Compromis.
71
The Bio-medical Waste Management Rules, 2016.
72
Uttarsanda Gram Panchayat and Ors. vs. State of Gujarat and Ors (2015) SCC OnLineGuj 2038.

27
 MEMORIAL ON BEHALF OF THE RESPONDENT

exposed to the public was done so for days73 which is a clear violation of Rule 8(7) of The
Bio-medical Waste Management Rules, 2016.

47. Infectious waste contains a great variety of pathogenic microorganisms causing damage
to the health of all consumers. This applies to management of health-care waste both
within and outside health-care establishments. Vectors feed or breed on waste are well
known passive carriers of microbial pathogens; their populations increases dramatically
where there is mismanagement of waste.74 Thus, exposure to medical waste has grave
repercussions on human health and the ecological balance of a particular area where such
waste is haphazardly dumped owing to mismanagement. Thus, it is submitted that the
Petitioners are subjecting the citizens of Arese to such vicious dangers by the
mismanagement of its Bio Medical Waste.

[III.A.2] There have been violations by Pollution Control Boards.

48. As far as the liability of the PCBs is concerned, it has been held that responsibility of the
PCBs does not end with merely enacting laws & granting licenses to Common Bio
Medical Waste Treatment Facility in a case75 in which the court went on to hold the Tamil
Nadu Pollution Control board liable for its inaction on constitution of requisite
committees for regulation of disposal of Bio-Medical Waste.

49. As per the Annexure I report submitted by the State Pollution Control Board, it can be
inferred that 15 CBWTF haven’t been issued directions/notices for violation of the BMW
Rules of 2016 out of the 245 CBWTFs. It is also been noticed that there are only 6
CBWTFs having liquid waste treatment facility. As per the Annexure II report, the
Central Pollution Control Board has not issued notices/ directions to 5,732 CBWTFs
having violative tendencies of the BMW Rules of 2016. Moreover, there are
disproportionate number of CBWTF for so many HCFs i.e., only 222 CBWTFs pitted
against a whopping 2,38,259 HCFs with only 84805 HCFs being granted authorization.
The 2 Boards, under the Rules of 2016 are required to grant authorization to HCFs and
CBWTFs after satisfying itself that the applicant possesses the necessary capacity to
handle bio-medical waste in accordance with these rules, grant or renew an authorization
as the case may be.76
73
¶ 10, Moot Compromis.
74
World Health Organisation, Health Impacts of Health Care Waste, (Dec 6, 2019, 5:34 pm),
https://www.who.int/water_sanitation_health/medicalwaste/020to030.pdf.
75
Dr.J.Umarani vs The State Of Tamil Nadu, W.P. No.43370 of 2016.
76
The Bio-medical Waste Management Rules, 2016, Rule 7.

28
 MEMORIAL ON BEHALF OF THE RESPONDENT

50. In fact, a deep analysis of the report in Annexure 1 shows that bedded HCFs do not have
Plasma Pyrolysis, Microwave, Hydroclave, Shredder, Sharps encapsulation or concrete
pits, Deep burial pits and Incinerator, shredder in non-bedded HCFs which are absolutely
necessary for disposal of certain types of wastes.77 And thus, the PCBs have illegally
given authorization to such facilities which are clearly incapable of treating Bio-medical
Waste.

51. In the case of Suo Motu v Vatva Industries Association78, the Gujarat High Court held that
it is not appropriate for the Gujarat Pollution Control Board, or its officers just to point
out those defaults and wrong doings and wait for the High Court's directions in a matter
which is entirely within their domain under the statutory provisions.

[III.B] There have been violations under Law of Tort.

[III.B.1] There have been violations by Hospitals.

[III.B.1.i] The hospitals must be seen as polluters.

52. Pollution is a civil wrong committed against the community as a whole 79. A person,
therefore, who is guilty of causing pollution has to pay damages for restoration of the
environment and ecology80. In addition to damages, the person guilty of causing pollution
can also be held liable to pay exemplary damages, so that it may act as a deterrent for
others not to cause pollution in any manner. 81 From the facts of the present case, it can be
deciphered that unsegregated waste that had been lying scattered for days together
amounted to waste and land pollution when it has been categorically held that no
untreated Bio-Medical waste can be kept beyond a period of 48 hours in a case.82
Therefore, the unsegregated biomedical waste must be seen as pollution and a tort
committed against the community living in the vicinity.

53. A Judgment of the Calcutta High Court in 190583 is important because it shows how the
common law regulatory system can check polluters. The court held the defendants liable
for polluting by discharging the refuse liquid of his shellac factory and endangering the
health and comfort of public at large and to the plaintiff. A parallel analogy can be drawn

77
The Bio-medical Waste Management Rules, 2016,SCHEDULE I (See Rule 5).
78
Suo Motu v Vatva Industries Association AIR 2000 GUJ 33.
79
M.C.Mehta v. Kamal Nath, (2000) 6 SCC 213.
80
Id.
81
Id.
82
Maitree Sansad vs State Of Orissa And Ors (2007) Supp. 1 OLR246.
83
J. C. Galstaun v Dunia Lal Seal, [1905] 9 CWN 612.

29
 MEMORIAL ON BEHALF OF THE RESPONDENT

with the present case where the mistreatment of BMW exposed the public at large to
various health hazards.

54. The ‘Polluter pays’ principle84 which is a part of the basic environmental law of the land
requires that a polluter bear the remedial or cleanup costs as well as the amounts payable
to compensate the victims of pollution 85. Thus, as per the Polluter Pays’ principle, the
polluters must be required to pay damages by the concerned authorities.

[III.B.1.ii] The hospitals should be made liable for causing nuisance.

55. The petitioner having committed an illegal omission86 of the Rules of 2016 i.e., keeping
unsegregated BMW left in the open for days, etc. which was a cause of common injury,
danger and annoyance to the public i.e., caused Tuberculosis to the petitioner and
exposure of hazardous waste and fulfills the essentials to constitute the offence of public
nuisance87 and thus, the sum ordered by the hon’ble NGT is apt.

56. In one case, the court has held that it is the duty of the institutions generating biomedical
waste to take all steps to ensure that such waste is handled without any adverse effect to
human health and environment.88 Under this instant case, the breach of this duty lays
down the conditions for imposing liability under the law of Torts are made out, which is
in Nuisance defined as an unreasonable interference with a general right of the public. 89
Rather, the hon’ble NGT has been merciful in its order of damages by not imposing
injunction on the business of the Med-foil hospital.

[III.B.2] Violations by Pollution Control Boards.

57. The “precautionary principle”90 under the environmental jurisprudence requires that, if

there is a strong suspicion that a certain activity may have environmentally harmful
consequences, it is better to control that activity now rather than to wait for
incontrovertible scientific evidence. Therefore, the PCBs, as authorities, should have

84
National Green Tribunal Act, 2010, No. 19, Acts of Parliament, 2010, § 20.
85
Vellore Citizens' Welfare Forum vs. Union of India (1996) 5 SCC 647.
86
Venkatesh v. Union of IndiaOriginal Application No. 179 of (2017); Ankita Sinha v. State of Maharashtra
O.A. No. 510 of (2018) order dated 30.10.2018; Sukhdev Vihar Resident's Welfare Association v. State of Delhi
(2018) SCC OnLine NGT 1681,Haat Supreme WastechPvt. Ltd. &Ors. v. State of Haryana &Ors., (2014) SCC
OnLine NGT 6811.
87
The Indian Penal Code, No. 45,Acts of Parliament 1860,§268.
88
Environment Monitoring Forum and Anr. Vs. Union of India (U O I) and Ors., Writ Petition (civil)386 of
(2001).
89
Id.
90
National Green Tribunal Act, No. 19, Acts of Parliament, 2010.§20.

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 MEMORIAL ON BEHALF OF THE RESPONDENT

applied foresight as expected under the precautionary principle and be held accountable
due its inaction.

58. On ‘Polluter Pays’ principle, damages can be recovered not only from the polluters but
91
also from the State functionaries who collude with the polluters. Failure to do so
renders the authorities also liable to pay damages as has been directed in several orders of
the Hon’ble.92 Performance Guarantee may also be required if there is no improvement. 93
Such illegal grant of authorization to facilities incapable of disposing Biomedical wastes
makes PCBs colluders with the polluters as the Hon’ble NGT has aptly decided in its
order.

[III.C] Violations of Law pertaining to Transboundary Movement of Bio-Medical

Waste.

[III.C.1] Violations by Hospitals.

59. The Basel Convention declared that the improper management of Bio-Medical and
Healthcare wastes come under its purview of toxic and hazardous wastes.94 The
Convention was duly ratified by India on 24th June, 1992, 95 and thus, she has an
obligation to adhere to the resolutions of the Convention. 96 One instance can be the case
of Visakha v. State of Rajasthan97, where the Supreme Court sought help of international
conventions for the purpose of construction of Domestic law. Thus, the actions of those
hospitals involved in are transboundary movement of waste should be deemed illegal.

60. In fact, in a case98, the court held that Parliament can make law to see that the law is not
evaded by taking recourse to machination or camouflage. Both substantial and procedural
provisions can be made to make a law in furtherance of the object for which the Act has

91
Aryavart Foundation v. Vapi Green Enviro Ltd., (2018) SCC OnLine NGT 544.
92
All India LokadhikarSangathan v. Govt of NCT Delhi, E2016 SCC OnLine NGT 3192; Sobha Singh v. State
of Punjab (2018) SCC OnLine NGT 346; Threat to Life Arising Out of Coal Mining in South Garo Hills
district v. State of Meghalaya O.A. No. 110 (THC) of (2012), Date of Order 04.01.2019; Ms. Ankita
Sinha v. State of Maharashtra O.A. No. 510 of (2018), Date of Order 30.10.2018, Sudarsan Das v. State of West
Bengal O.A. No. 173 of (2018), Date of Order 04.09.2018; Court on its Own Motion v. State of Karnataka,
(2017) SCC OnLine NGT 1135.
93
Id.
94
THE BASEL CONVENTION ON THE CONTROL OF TRANSBOUNDARY MOVEMENTS OF
HAZARDOUS WASTES AND THEIR DISPOSAL; 5th January 2020, last accessed: 19:55,
https://www.basel.int/Portals/4/Basel%20Convention/docs/text/BaselConventionText-e.pdf.
95
Id.
96
INDIA CONST., art.253.
97
Visakha v. State of Rajasthan (1997) 6 SCC 241.
98
Indian Handicrafts Emporium and others vs. Union of India and others, (2003) 7 SCC 589.

31
 MEMORIAL ON BEHALF OF THE RESPONDENT

been enacted. Thus, the Rules of 2016 should be given as wide an interpretation to
include the ambit of transboundary movement of BMW.

[III.C.2] Violations by Pollution Control Boards.

61. The PCBs have been given authority to issue directions/notices for non-compliance of the
BMW Rules of 201699, file a complaint100, refuse grant of101, scrap authorization102, to any
applicant. The inaction on part of the PCBs to take cognizance and stop the trans
boundary movement of such waste should be seen as a violation on its part.

Therefore, it is humbly submitted before this Hon’ble Court that the Petitioners are in
violation of the Bio-medical Waste Management Rules of 2016, Environment Protection Act,
1986, Precautionary Principle and the Polluters Principle under the NGT Act, 2010 and
International Conventions. The Petitioners are also in violation of the principles of Public
Nuisance and Negligence by flouting the “duty of care” under the Law of Torts.

ISSUE IV: WHETHER THERE HAS BEEN A GROSS VIOLATION OF HUMAN

RIGHTS.

It is humbly contended by the Respondent that there has been a gross violation of human
rights by the Petitioners by their gross conduct and violation of the laws related to Bio
Medical Waste management and disposal causing grave and irreparable harm to the society.

[IV.A] There has been a violation of human rights by violating the laws prevalent in
India.

[IV.A.1] There has been a violation of Article 21 of the Aresean Constitution.

62. It is humbly contended by the Respondent that irrespective of enforced legislations, the
citizens are being constantly exposed to life threatening situations, which is a gross
violation of the human right to life protected by the Article 21 of the Constitution of
Arese. Every person enjoys the right to a wholesome environment, which is a facet of the
right to life guaranteed under Article 21103. Enforcement agencies are under an obligation

99
Environment Protection Act 1986, § 5.
100
Environment Protection Act, 1986, §15.
101
The Bio-medical Waste Management Rules, 2016,Rule 7(6).
102
The Bio-medical Waste Management Rules, 2016, Rule 7(8).
103
Subhash Kumar v. State of Bihar, AIR 1991 SC 420.

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to strictly enforce environmental laws104, which in the said case, they have failed to do,
violating the very guarantee enshrined under Article 21105.

63. In Subhash Kumar v State of Bihar 106, the Supreme Court held that the right to life
includes the right to enjoy unpolluted air and water. The State has duty in that regard to
forge in its policy to maintain ecological balance and a hygienic environment. Article 21
protects right to life as a fundamental right. Environmental ecological, air, water,
pollution, etc. should be regarded as amounting to violation of Article 21. There is a
constitutional imperative on the State Government and the municipalities, not only to
ensure and safe-guard proper environment but also an imperative duty to take adequate
measures to promote, protect and improve the environment man-made and the natural
environment.

64. In the present case, with the gross negligence of the Petitioners, that has resulted in the
exposure of the citizens of Morgalia to toxic bio-medical waste 107, and has created an
imbalance in the ecology, the rights of an individual enshrined under Article 21 have been
violated. All the waste was gathered in one place, which was near to the places populated
with humans, due to which the health of human beings and animals was getting adversely
affected.108

65. Such acts of health care facilities such as Medfoil Multi-Specialty Hospital, perpetrated
and continued owing to negligence of enforcement of any regulation by the CPCB,
SPCB, and the State of Morgalia, have grave implication for the society subject to
exposure to toxic bio- medical waste. Bio-medical waste is hazardous in nature. 109 All
individuals exposed to hazardous health-care waste are potentially at risk, including those
within health-care establishments that generate hazardous waste, and those outside these
sources who either handle such waste or are exposed to it as a consequence of careless
management.110

66. It was observed by the Gujarat High Court that it is the onus of the State authorities to
ensure that there is scientific disposal of hazardous wastes, and not just point out the

104
Council for Enviro Legal Action v. Union of India, (1996) 5 SCC 281.
105
INDIA CONST., art.253.
106
Subhash Kumar v. State of Bihar, AIR 1991 SC 420.
107
¶ 11, Moot Proposition.
108
¶ 11, Moot Proposition.
109
¶ 3, Moot Proposition.
110
World Health Organisation, Health Impacts of Health Care Waste,
https://www.who.int/water_sanitation_health/medicalwaste/020to030.pdf, (Last accessed: Dec 6, 2019, 17:34).

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violations of the defaulting parties111. The non-scientific disposal of garbage also causes
air pollution which degrades the quality of air and public health, which is a violation of
the rights of an individual enshrined under Article 21112. In the present case, the
Petitioners submitted reports regarding compliance of hospitals with environmental
norms prescribed under Bio Medical Rules (Management and Handling), 2016, but they
have not ensured the implementation of adequate measures to curb the menace of
mismanagement of disposal of bio medical waste, as it was found that various
transporters were carrying unsegregated bio medical waste only to be dumped in an
unscientific manner. There have been occasions wherein the dumped garbage has come in
the reach of rag pickers, which exposes them to the dangers of coming in contact with
toxic bio medical waste.113

67. In Pakistan on average scavenger boys who were going through medical waste, for
collection and resale, experienced three to five needle stick injuries a day. Low income
households are more likely to live close to waste sites resulting in more direct contact
with health care waste.114. By endangering the lives of citizens of Morgalia, it is thus
contended that the Petitioners violated the basic human right to life guaranteed to the
individuals under Article 21.

[IV.A.2] Violation of Human Rights with respect to discharge of effluents in the river.

68. In the case of M. C Mehta v. Kamal Nath115, where a hotel was discharging effluent into
river and hence causing disturbance to aquatic life and water sanitation, the Supreme
Court held that any disturbance of basic environmental elements namely air, water and
soil which are necessary for life would be hazardous to life and cannot be polluted.

69. In the case of M.C. Mehta and Others. vs. Union of India and Others 116, it was
specifically provided that there should be no disposal of bio medical waste directly in a
river, or its banks. It was observed by the Respondent that Bio medical waste is scattered
in the open and also spread out into the river Jalshakti, that flows alongside Medfoil
Hospital. Owing to negligence in fulfilling their duties aforementioned in Issue 3, the
health care facilities have been unable to meet the standards required by the Bio Medical
111
Suo Motu v. Vatva Industries Association , AIR (2000) GUJ 33.
112
Court on its own Motion v. Union of India and Ors, CWP PIL191 of (2019).
113
¶ 12, Moot Proposition.
114
Anjali Acharya, Impact of Biomedical Waste on City Environment: Case Study of Pune, India, IOSR Journal
of Applied Chemistry (IOSR-JAC), Volume 6, Issue 6 (Jan. 2014).
115
M. C Mehta v. Kamal Nath, AIR 2002 SC 1997.
116
M.C. Mehta and Ors. v. Union of India and Ors,1988 AIR 1115.

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Waste Management Rules, it has had serious implication on the human health and
ecology of Morgalia117, resulting in the violation of the human rights guaranteed to the
individuals under the Constitution under Article 21118.

[IV.B] There has been violation of human rights by contravention of international

covenants of human rights.

70. It is humbly contended that the Petitioners are in gross violation of the standards preset by
the international fora to adjudge human rights linked with environment. States who have
agreed to ratify a treaty or to comply with accepted norms or have ratified it have a legal
and moral obligation to implement such conventions. Principle 1 of the Stockholm
Declaration declares that Man has fundamental right to freedom, adequate conditions to
life in an environment that is conducive of a life of dignity and well-being. India, too, has
ratified the Stockholm Convention on May 24, 2005.119

71. The Rio Declaration on Environment and Development formulates a link between human
rights and environmental protection largely in procedural terms, declaring in Principle 10
that access to information, public participation and access to effective judicial and
administrative proceedings, including redress and remedy, should be guaranteed because
“environmental issues are best handled with the participation of all concerned citizens, at
the relevant level.” Thus, these procedural rights, contained in all human rights
instruments, are adopted in environmental texts in order to have better environmental
decision-making and enforcement.

72. It is evident from the facts that the Petitioners are in gross violation of the aforementioned
principles, and have thereby violated human rights guaranteed to the citizens of Arese by
the national and international laws. Owing to their vile negligence, and gross violation of
their duties towards the citizens, by failing to implement and abide by the laws, they have
caused irreparable damage to the society.

Therefore, it is humbly submitted before this Hon’ble court that the Petitioners have grossly
violated human rights as under Article 21 of the Constitution, and have flouted all
international conventions that link the environmental norms with human rights.

117
¶4, Moot Compromis.
118
Subhash Kumar v. State of Bihar, AIR (1991) SC 420.
119
Inter-Ministerial Delegation to Participate in Basel, Rotterdam, Stockholm Conventions in Geneva,
https://pib.gov.in/newsite/PrintRelease.aspx?relid=161203; 5th January,2020, last accessed:1932).

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PRAYER

Wherefore, it is humbly prayed to this Hon’ble Court that in light of the issues raised,
arguments advanced and authorities cited, this Hon’ble Court may be pleased to:

1. DECLARE that the Special Leave Petition filed under Article 136 of the Constitution
of Arese is not maintainable.

2. HOLD that the Hon’ble National Green Tribunal had sufficient jurisdiction for
passing the orders.

3. HOLD that there have been violations of Environmental and Human right laws.

4. UPHOLD the order passed by the Hon’ble National Green Tribunal.

AND/OR

Pass any such Order, Direction, Relief that it may deem fit in the interests of Justice, Equity,
and Good conscience.

For this act of Kindness, the Respondents shall, duty bound, forever pray.

Sd/-

Counsel for the Respondent

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