TEAM CODE: 22P

12th PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION – 2018.

BEFORE THE NATIONAL GREEN TRIBUNAL

(under the section 14 of National Green Tribunal act, 2010)

Application No. _____ / 2018

Mr.Yograj, Watchdog India ............................................................ Petitioner

v.

Mr. Ramachandran, Margo India Ltd. .......................................Respondent

Most Respectfully Submitted to the National Green Tribunal

MEMORIAL ON BEHALF OF THE PETITIONER

COUNSEL FOR THE PETITIONER

COUNSEL FOR THE PETITIONER Page 1

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS……………………………………………………………….3
INDEX OF AUTHORITIES…………………………………………………………...........4
TABLE OF CASES
BOOKS
STATUES
WEB SOURCES
STATEMENT OF JURISDICTION…………………………………………………..........7
STATEMENT OF FACTS……………………………………………………………..........8
ISSUES RAISED………………….………………………………………………………….9
SUMMARY OF ARGUMENTS…………………………………………………………...10
ARGUMENTS ADVANCED………………………………………………………………11

1. WHETHER PETITION UNDER SEC.14 OF NGT ACT, WAS BARRED BY THE

MORATORIUM GRANTED BY THE HON’BLE NCLT UNDER THE SEC.14 OF
IBC. ……………………………………………………………………………………11

2. WHETHER THE PETITION UNDER SEC.14 OF NGT WAS BARRED BY

LIMITATION & BEYOND THE SCOPE OF ORIGINAL JURISDICTION
CONFERRED UPON THE NGT UNDER SCHEDULE 1 OF THE NGT ACT….14

3. WHETHER THE TENETS OF SEC.20 OF IBC, WOULD SUPERSEDE G.O (Ms).

No.84 & PERMIT THE COMPANY TO PROCEED WITH ITS
MANUFACTURING PROCESS, IN LIGHT OF SEC.238 OF IBC?.......................16

4. WHETHER G.O (MS). NO. 84, WAS AN ABSOLUTE BAR TO MANUFACTURE

PLASTIC WITHIN THE STATE OF TAMIL NADU OR COULD IT BE
MANUFACTURED FOR LIMITED PURPOSES, IDENTIFIED IN THE G.O
ITSELF?...........................................................................................................................17

PRAYER……...………………………………………………………………………...…..20

LIST OF ABBREVIATIONS
COUNSEL FOR THE PETITIONER Page 2
 LIST OF ABBREVIATIONS LIST OF ABBREVIATIONS

& And

A.I.R. All India Reporter

Art. Article

Bom. Bombay

Ed. Edition

G.O. Government order

HC High Court

Hon’ble Honourable

IBC Insolvency and bankruptcy code

LDEP Low-density polyethylene

NCLT National company law tribunal

NGO Non – Governmental organization

NGPT National Green Principle Tribunal

NGT National Green Tribunal

Ors Others

p. Page

SC Supreme Court

Sec./s. Section

v. Versus

Vol. Volume

INDEX OF AUTHORITIES

TABLE OF CASES
S.no Case name Citation
COUNSEL FOR THE PETITIONER Page 3
1. Bal Krishna Savalram Pujari & Ors. v. Sh. MANU/SC/0174/1959 : AIR
Dayaneshwar Maharaj Sansthan & Ors 1959 SC 798

2. Canara Bank v. Deccan Chronicle Holdings 2017 SCC OnLine NCLAT 255
Limited

3. Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.

4. Consolidated Engineering Enterprises Vs. (2008) 7 SCC 169

Principal Secretary Irrigation Department and
Ors

5. Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844.

6. Innoventive Industries Ltd Vs. ICICI Bank & Appeal (Civil), 8337-8338 of
Anr. 2017, Judgment Date: Aug 31,
2017

7. Kehar Singh v. State of Haryana; [ALL (I) NGT REPORTER

(DELHI), 2013 (1) Part 7, Page
256]
8. M/s. K. K. Plastic Waste Management Private Appln.110/2016
Limited and Others v. State of Karnataka

9. M/S. S.H. Associate v. Rajasthan Financial W.P.(C) Nos. 1424/2011 &

Corporation, 2294/2011; Vishnu Dutt Tripathi
v. A.D.J. &Ors Writ (C ) No. 591
of 2000
10. Madhu Kishore v.State of Bihar; 1996 5 SCC 125

11. Medha Patekar v. Ministry of Environment 2013 All India NGT Reporter,
and Forest Page 174, Delhi

12. Ms. Shehla Zia v. WAPDA PLD 1994 Supreme Court 693

13. Power Grid Corporation Of India ... vs 20 November, 2017

Central Electricity Regulatory ...

14. Rajiv Sarin and Ors. v. State of Uttarakhand AIR 2011 SC 3081
and Ors,

15. Savemon Region Federation v. Union of India 2013 Vol-1, All India NGT
Reporter Page 1

16. Shantisar Builders v. Narayanan Khimalal AIR 1990 SC 630.

Totamen,

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17. Shri Ram Narain v. Shimla Banking and 1956 AIR 614
Industrial Co. Ltd
18. State of Goa Vs. Western Builders (2006) 6 SCC 239

19. State of Himachal Pradesh v. Umed Ram AIR 1986 SC 847

Sharma and Ors.
20. State of Uttaranchal v. B.S. Chaufal & Ors AIR 2010 SC 2550,

21. Steamline Industries Ltd Vs. Tecpro Systems No. 299 of 2017.
Ltd.

22. The Forward Foundation A Charitable Trust (07.05.2015 - NGT) :

and Ors. v. State of Karnataka and Ors MANU/GT/0089/2015

23. Union of India and State of W.B. v. Kesoram Appeal (civil) 1532 of 1993
Industries Ltd.

BOOKS
1. Banerjee, B.P, Writ Remedies, 4th Edition, 2008, LexisNexis, Buttersworth Wadhwa
Publication.
2. Banerjee, Digest of Land Acquisition & Compensation Cases, 2nd Edition 1997,
Ashoka Law House.
3. Basu D.D., Constitution of India, 14th Edition 2009, LexisNexis Butterworths
Wadhwa Nagpur.
4. Desai. A. Ashok, Environmental Jurisprudence, 2nd Edition 2002, Modern Law
House.
5. Doabia T.S, Environmental & Pollution Laws in India, 1st Edition 2005, Wadhwa
Nagpur.
6. Jain M.P, Indian Constitutional Law, 6th Edition 2011, LexisNexis Butterworth
Wadhwa Nagpur.
7. Jaswal P.S., Environmental Law, 2nd Edition 2006, Allahabad Law Agency.
8. Karkara G.S., Environmental Law, 1st Edition, 1999, Central Law Publications.
9. Maheshwara N. Swamy , Law relating to Environmental Pollution and Protection, 2nd
Edition 2003, Asia Law House.
10. Malik Sumeet, Environmental Law, 1st Edition 2008, Eastern Book Company.
LEGAL DATABASES
1. Manupatra
2. SCC Online

COUNSEL FOR THE PETITIONER Page 5

 3. Westlaw
4. Hein Online
LEXICONS
1. . Aiyar P Ramanathan, Law Lexicon, 2005
2. Garner Bryana, Black’s Law Dictionary,7th Edition,1999
LEGISLATIONS
1. . The Constitution of India, 1950
2. Environment Protection Act, 1986
3. Insolvency and bankruptcy code.
4. National Green Law tribunal Act.

STATEMENT OF JURISDICTION

With regard to the circumstances of the instant case, the Appellant submits before this
Hon’ble Supreme Court of India, that it has the inherent jurisdiction to try, entertain and

COUNSEL FOR THE PETITIONER Page 6

dispose the present case by virtue of Sec. 14 of National Green Tribunal.

Sec. 14 : Tribunal to settle disputes. -

(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question
relating to environment (including enforcement of any legal right relating to environment), is
involved and such question arises out of the implementation of the enactments specified in
Schedule I.
(2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section
(1) and settle such disputes and pass order thereon.
(3) No application for adjudication of dispute under this section shall be entertained by the
Tribunal unless it is made within a period of six months from the date on which the cause of
action for such dispute first arose: Provided that the Tribunal may, if it is satisfied that the
applicant was prevented by sufficient cause from filing the application within the said period,
allow it to be filed within a further period not exceeding sixty days.

STATEMENT OF FACTS

Character enmeshed:
Margo India Ltd. One of the leading exporter of plastic, Specialized in the manufacturing of

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low density polyethylene (LDPE) whereas its factory is being situated near Mooveri Lake.
Adding up this lake is the only source of water for the nearby 3 districts for the purpose of
agriculture. The capstone of heavy contamination of water and soil was found by personnel
from a NGO Watchdog India which is under the branch of Watchdog International.
Remonstrance by the villagers: Soon after the shocking results, that water bodies is been
contaminated by toxic chemical resin and agriculture soil is been contaminated by LDPE.
The villages started to agitate for closing down of factory in January 2016. 3rd May 2016, a
press release was made by Margo Co. that company would be temporarily shut for
investigation purpose.
Orders down the lane: Margo filed a petition in High court challenging the temporary
closure in March, 2017. The court directs to complete the investigation within 8 weeks and
reopen the factory. At the later point even the investigation also revealed that the
contamination of land and water is because of this company. Government ordered to shut
down the factory completely. Went to an appeal to SC, the decree that there was a violation of
natural justice on part of HC by the time the company started to reopen the factory on 13th
February 2018. Company has lent money from the bank due to the failure to payback, the
Bank filed a petition to appoint interim insolvency professional.
Moral Compass gets slipped:
In spite of protests made, the NCLT asked the protesters not to interfere with the insolvency
resolution process. Though showing G.O., the professional says code prevails over the
government order. Now the present case is before the tribunal to decide upon the following
issues.

ISSUES RAISED
ISSUE: 1

WHETHER PETITION UNDER SEC.14 OF NGT ACT, WAS BARRED BY THE

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MORATORIUM GRANTED BY THE HON’BLE NCLT UNDER THE SEC.14 OF
IBC.

ISSUE: 2

WHETHER THE PETITION UNDER SEC.14 OF NGT WAS BARRED BY

LIMITATION & BEYOND THE SCOPE OF ORIGINAL JURISDICTION
CONFERRED UPON THE NGT UNDER SCHEDULE 1 OF THE NGT ACT.

ISSUE: 3
WHETHER THE TENETS OF SEC.20 OF IBC, WOULD SUPERSEDE G.O (Ms).
No.84 & PERMIT THE COMPANY TO PROCEED WITH ITS MANUFACTURING
PROCESS, IN LIGHT OF SEC.238 OF IBC?

ISSUE: 4
WHETHER G.O (MS). NO. 84, WAS AN ABSOLUTE BAR TO MANUFACTURE
PLASTIC WITHIN THE STATE OF TAMIL NADU OR COULD IT BE
MANUFACTURED FOR LIMITED PURPOSES, IDENTIFIED IN THE G.O
ITSELF?

SUMMARY OF ARGUMENTS
1. WHETHER PETITION UNDER SEC.14 OF NGT ACT, WAS BARRED BY THE
MORATORIUM GRANTED BY THE HON’BLE NCLT UNDER THE SEC.14 OF
IBC.

COUNSEL FOR THE PETITIONER Page 9

 It is humbly submitted to the court that the petition under sec.14 of NGT act, is not barred
by the moratorium granted by the hon’ble NCLT under the sec.14 of IBC. It should be
noted that IBC is silent on the aspect of the definition of moratorium and what
proceedings will fall under the ambit of Section 14 of the IBC would still require judicial
assessment.
2. WHETHER THE PETITION UNDER SEC.14 OF NGT WAS BARRED BY
LIMITATION & BEYOND THE SCOPE OF ORIGINAL JURISDICTION
CONFERRED UPON THE NGT UNDER SCHEDULE 1 OF THE NGT ACT.
 It is humbly submitted before this Tribunal that now request of maintainability is viable
under S.14 of NGT act and is well inside the recommended purview presented upon the
NGT under Schedule 1 of the NGT demonstration. It is additionally presented that the
restriction recommended under S.14 stretches from the day of cause of action and not
earlier.
3. WHETHER THE TENETS OF SEC.20 OF IBC, WOULD SUPERSEDE G.O (Ms).
No.84 & PERMIT THE COMPANY TO PROCEED WITH ITS
MANUFACTURING PROCESS, IN LIGHT OF SEC.238 OF IBC?
 It is humbly submitted before this Tribunal, that the tenets of S.20 of the IBC do not
supersede the G.O (Ms) No. 84 and the manufacturing process of the company must be
stopped from being proceeded. It is very unequivocal that, IBC and State Government’s
order work in their particular subject matter
4. WHETHER G.O (MS). NO. 84, WAS AN ABSOLUTE BAR TO MANUFACTURE
PLASTIC WITHIN THE STATE OF TAMIL NADU OR COULD IT BE
MANUFACTURED FOR LIMITED PURPOSES, IDENTIFIED IN THE G.O
ITSELF?
 It is humbly submitted before the Hon’ble Tribunal that there is No Absolute Bar to
manufacture ‘use and throw away’ plastic within the State of Tamil Nadu. There are
recognized exemptions in the G.O (Ms). No.84. According to the GO, no industry or
individual will manufacture 'use and throwaway plastics'. However the GO itself
perceives five exceptions and allows making of use and throwaway plastics in such cases.
ARGUMENTS ADVANCED

1. WHETHER PETITION UNDER SEC.14 OF NGT ACT, WAS BARRED BY THE

MORATORIUM GRANTED BY THE HON’BLE NCLT UNDER THE SEC.14 OF
IBC.
COUNSEL FOR THE PETITIONER Page 10
1. It is humbly submitted to the court that the petition under sec.14 of NGT act, is not barred
by the moratorium granted by the hon’ble NCLT under the sec.14 of IBC. It should be
noted that IBC is silent on the aspect of the definition of moratorium and what
proceedings will fall under the ambit of Section 14 of the IBC would still require judicial
assessment. Nonetheless, the language of Section 14 of IBC is wide and the intention of
the legislature is also to provide complete calm period.
1.1. Intention of the legislation to be seen:
2. When we examine lot of cases the important point pertinent to sec. 14 of Insolvency and
bankruptcy code is that it is always the dispute between the creditors and the debtors.
Whereas in our case there is no question for dispute between the creditor and debtors. It is
a general petition made to the tribunal by Mr.Yogaraj to have a peaceful Public Function.
Public Function is one which “seeks to achieve some collective benefit for the public or a
section of the public”1 Further under the well-established doctrine of Parens Patriae, it is
the obligation of the State to protect and take into custody the rights and the privileges of
its citizens for discharging its obligations.2
3. As the reason is that the provisions of section 14(1)(a) of the Code are very wide and
appear to be a complete bar against the institution or continuation of suits or any legal
proceedings against a corporate debtor on the declaration of moratorium by the
adjudicating authority.3 Section 14(1)(a) of the Code reads as follows:

14. (1) Subject to provisions of sub-sections (2) and (3), on the insolvency
commencement date, the Adjudicating Authority shall by order declare moratorium
for prohibiting all of the following, namely: —

(a) the institution of suits or continuation of pending suits or proceedings against

the corporate debtor including execution of any judgment, decree or order in any
court of law, tribunal, arbitration panel or other authority;

4. Although the ambit of section 14 covers the initiation and continuation of any
proceedings, the NCLAT has in its judgment of Canara Bank v. Deccan Chronicle
Holdings Limited4 categorically carved out an exception holding that the moratorium

1
Binny Ltd. And Anr. v. Sadasivan and Ors. AIR 2005 SC 320 ¶ 11
2
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480, ¶ 35.
3
https://indiacorplaw.in/2018/01/scope-moratorium-section-14-insolvency-bankruptcy-code-2016-analysis.html
4
2017 SCC OnLine NCLAT 255
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 will not affect any proceedings initiated or pending before the Supreme Court under
Article 32 of the Constitution of India or where an order is passed under Article 136 of
the Constitution of India. The NCLAT also concluded that the moratorium will not affect
the powers of any High Court under Article 226 of the Constitution of India. In times to
come it will be interesting to see if judicial pronouncements carve out any exceptions for
certain legal proceedings from the applicability of section 14(1)(a) of the Code .5
5. A logical connect can be made in the above holding of the case, that the cases goes to
High Court and Supreme Courts, when there is a miscarriage of justice, when there is a
substantial question of law or violation of natural justice. It is also a point put forward
towards the court that why is there a need for dragging a case, were the credential for
moving to the higher forum is already present in the present forum.
6. To substantiate, Article 21 of the Constitution envisages a right to life and personal liberty
of a person. The word “Life” under Article 21 means a quality of life6 , which includes
right of food, and reasonable accommodation to live in7 and the right to a wholesome
environment.8 Also ICCPR9, UDHR10 and ICESCR11 recognizes right to life and adequate
standard of living. Here in the present case, people of Karapura is suffering from disease
and several children were suffering from malnutrition due to contamination of water
made by the factory. The doctrine of repugnancy cannot be different subjects of law and
hence does not apply to the present case. 12
7. Whereas if you read it with, sec. 14 of National green tribunal act, 2010 :

14. Tribunal to settle disputes. –

1. The Tribunal shall have the jurisdiction over all civil cases where a substantial
question relating to environment (including enforcement of any legal right relating to
environment), is involved and such question arises out of the implementation of the
enactments specified in Schedule I.

2. The Tribunal shall hear the disputes arising from the questions referred to in sub-
section (1) and settle such disputes and pass order thereon.
5
Canara Bank v. Deccan Chronicle Holdings Limited
6
Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844.
7
Shantisar Builders v. Narayanan Khimalal Totamen, AIR 1990 SC 630.
8
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.
9
Article 6, ICCPR
10
Article 3, UDHR
11
Article 11, ICESCR
12
Rajiv Sarin and Ors. v. State of Uttarakhand and Ors, AIR 2011 SC 3081
COUNSEL FOR THE PETITIONER Page 12
 3. No application for adjudication of dispute under this section shall be entertained by
the Tribunal unless it is made within a period of six months from the date on which the
cause of action for such dispute first arose:

Provided that the Tribunal may, if it is satisfied that the applicant was prevented by
sufficient cause from filing the application within the said period, allow it to be filed
within a further period not exceeding sixty days.13

8. The very first clause says that when there is a “substantial question relating to the
environment” the court can take up the matter to settle the dispute. So whereas in the
present case the ambit of substantial question is that, because of the contamination of
water and land by toxic chemical, livelihood of many villagers were affected very badly.

9. It was also stated in Power Grid Corporation of India 14case that considering the object behind
the moratorium, Section 14 of the Code would not apply to the proceedings 15 which are in the
benefit of the Corporate Debtor. 16 It is humbly submitted that the, the tribunal needs to take
this case as it concerns public welfare issues and it is also an evident fact that, when it
comes to money or people it, they needs to choose people as it is a obliged duty of the
state to protect its people.

2. WHETHER THE PETITION UNDER SEC.14 OF NGT WAS BARRED BY

LIMITATION & BEYOND THE SCOPE OF ORIGINAL JURISDICTION
CONFERRED UPON THE NGT UNDER SCHEDULE 1 OF THE NGT ACT.
It is humbly submitted before this Tribunal that now request of maintainability is viable
under S.14 of NGT act and is well inside the recommended purview presented upon the
NGT under Schedule 1 of the NGT demonstration. It is additionally presented that the
restriction recommended under S.14 stretches from the day of cause of action and not
earlier.
2.1. Limitation issue:

13
National Green Tribunal,2010.
14
Power Grid Corporation Of India ... vs Central Electricity Regulatory ... on 20 November, 2017
15
Innoventive Industries Ltd Vs. ICICI Bank & Anr.
16
Steamline Industries Ltd Vs. Tecpro Systems Ltd.
COUNSEL FOR THE PETITIONER Page 13
1. Moreover with regard to limitation issue, it is true to accept that there is a lapse of time
period but the importance needs to be shifted to the reasons for not filing the case,
proceedings of investigation was going on as per the governments order. From 3rd may
2016 to 1st week of March 2018. When there is galore amount of delay on part of the
government just for a mere invitation to find out whether the waste from the factory has
only affected the water bodies and land or any other means. And if this does not prick the
consciousness of the court there ends the balance.

2. Hon’ble Tribunal in the case of Savemon Region Federation v. Union of India17 & Ms.
Medha Patekar v. Ministry of Environment and Forest18, it was held that Courts
should not adopt an injustice oriented approach, while determining period of limitation.
To further examine the question of limitation, we must deliberate upon what does the
expression 'cause of action' mean. The connection between the two phraseology ‘cause of
action’ and ‘such dispute’ should be read together as per the rules of construction of
noscitur a sociis i.e. the meaning of a word or an expression is to be judged by the
company it keeps.19 Thereby it is humbly pleaded that the suit is well maintainable and is
not barred by the limitation period..

2.2. Cause of action is been prolonged:

3. In contradistinction to 'cause of action first arose', there could be 'continuing cause of

action', 'recurring cause of action' or 'successive cause of action'. They certainly have a
distinct and different meaning in law, 'Cause of action first arose' would refer to a definite
point of time when requisite ingredients constituting that 'cause of action' were complete,
providing applicant right to invoke the jurisdiction of the Court or the Tribunal. The
'Right to Sue' or 'right to take action' would be subsequent to an accrual of such right. 20
concept of continuing wrong which would be the foundation of continuous cause of
action has been accepted by the Hon'ble Supreme Court in the case of Bal Krishna
Savalram Pujari & Ors. v. Sh. Dayaneshwar Maharaj Sansthan & Ors. 21

2.3. It is under the ambit of original jurisdiction:

17
2013 Vol-1, All India NGT Reporter Page 1
18
2013 All India NGT Reporter, Page 174, Delhi
19
Kehar Singh v. State of Haryana; [ALL (I) NGT REPORTER (DELHI), 2013 (1) Part 7, Page 256]
20
The Forward Foundation A Charitable Trust and Ors. v. State of Karnataka and Ors. (07.05.2015 - NGT) :
MANU/GT/0089/2015
21
MANU/SC/0174/1959 : AIR 1959 SC 798
COUNSEL FOR THE PETITIONER Page 14
4. The present case is under the scope of original jurisdiction conferred by the NGT. The
schedule 1 of the National Green Tribunal gives the power to 7 acts namely, The Water
(Prevention and Control of Pollution) Act, 1974; The Water (Prevention and Control of
Pollution) Cess Act, 1977; The Forest (Conservation) Act, 1980; The Air (Prevention and
Control of Pollution) Act, 1981; The Environment (Protection) Act, 1986; The Public
Liability Insurance Act, 1991; The Biological Diversity Act, 2002.

5. Whereas in the present case it involves The Water (Prevention and Control of Pollution)
Act, 1974; The Water (Prevention and Control of Pollution) Cess Act, 1977; and the
environmental protection act. As the case involves both contamination of water and land
with toxic substances.

6. In the case of Consolidated Engineering Enterprises Vs. Principal Secretary

Irrigation Department and Ors22 &“State of Goa Vs. Western Builders23” the
following relevant observations were made as under:24 “While considering the provisions
of Section 14 of the Limitation Act, proper approach will have to be adopted and the
provisions will have to be interpreted so as to advance the cause of justice rather than
abort the proceedings.” This view is further to be accepted in this instance case.”

7. It is an humble contention from the petitioner counsel that, we all being in a democratic
country, laws are formed for regulating the conduct of the people, and not to give way to
creation of situations which is going to have an adverse effect on the people.

3. WHETHER THE TENETS OF SEC.20 OF IBC, WOULD SUPERSEDE G.O (Ms).

No.84 & PERMIT THE COMPANY TO PROCEED WITH ITS
MANUFACTURING PROCESS, IN LIGHT OF SEC.238 OF IBC?
1. It is humbly submitted before this Hon’ble court that the tenets of section 20 of the IBC
do not supersede G.O (Ms). No. 84. In the case of Union of India and State of W.B. v.
Kesoram Industries Ltd.,25 it was held that Doctrine of repugnancy would not apply as
the Insolvency and Bankruptcy Code and the G.O (Ms). No. 84 does not operate in the
same field as required for the Central Act to prevail by virtue of the doctrine.
2. It is very unequivocal that, IBC and State Government’s order work in their particular
22
(2008) 7 SCC 169
23
(2006) 6 SCC 239
24
Appeal No. 24/2012
25
Appeal (civil) 1532 of 1993
COUNSEL FOR THE PETITIONER Page 15
 subject matter. When there is a violation of fundamental and posting a threat to the
environment, through improper disposal of waste toxics from the factory contaminating
the land and water bodies in turn which affects the people in the locality. It is all a beeline
to the violation of art.21 which includes their right to have a good quality of life26 and any
disturbance in the environmental elements is detrimental to this right.27
3. Section 20 read with Section 238 of IBC gives overriding effect for the provisions
contained therein over any other law or any instrument having effect by virtue of such law
that is inconsistent with the said provisions. When the balance between the government
order The G.O (Ms). No. 8428 was issued under the provisions of Environment Protection
Act, 1986. S.24 of the said Act gives overriding effect to the rules or orders made therein
over any other enactment inconsistent with it.
4. In case of conflict between two non-obstante clauses, later enactments ought to be
interpreted as overriding the earlier enactments. The court would also endeavour to
resolve the conflict with reference to the object and purpose of laws in consideration.29
5. Each of the enactments being a special Act, the ordinary principle that a special law
overrides a general law does not afford any clear solution30 in the case at hand.
6. If two special enactments contain provisions which give overriding effect to the
provisions contained therein, then the Court is required to consider the purpose and the
policy underlying the two Acts and the clear intendment conveyed by the language of the
said provisions.31
7. The object of the Environment Protection Act is to provide for the protection and
improvement of Environment. This is also in consonance with the implementation of
Art.48 (A) of the Indian Constitution. When compared with the objective of IBC which
is relating to insolvency resolution of corporate persons, partnership firms and individuals
in an efficient manner, the purpose of the Environment Protection Act that facilitates
public good demands implementation.

26
Madhu Kishore v.State of Bihar 1996 5 SCC 125; Ms. Shehla Zia v. WAPDA PLD 1994 Supreme Court 693 in
State of Uttaranchal v. B.S. Chaufal & Ors, AIR 2010 SC 2550, State of Himachal Pradesh v. Umed Ram Sharma
and Ors. AIR 1986 SC 847
27
M.C. Mehta v. Kamal Nath , AIR 2000 SC 1997.
28
Moot Proposition, P.5, para 11
29
M/S. S.H. Associate v. Rajasthan Financial Corporation, W.P.(C) Nos. 1424/2011 & 2294/2011; Vishnu Dutt
Tripathi v. A.D.J. &Ors Writ (C ) No. 591 of 2000
30
Shri Ram Narain v. Shimla Banking and Industrial Co. Ltd 1956 AIR 614
31
EPF Commissioner v. Official Liquidator of Esskay Pharmaceuticals Ltd Civil Appeal No. 9630 of 2011 ( arising
out of SLP (civil no. 7642 of 2011) with civil appeal no. 96331-33 of 2011 (arising out of SLP (civil no. 7644-46 of
2011)
COUNSEL FOR THE PETITIONER Page 16
8. Hence, it is contended that the tenets of S.20 of the IBC do not supersede the G.O (Ms)
No. 84 and the manufacturing process of the company must be stopped from being
proceeded.

4. WHETHER G.O (MS). NO. 84, WAS AN ABSOLUTE BAR TO MANUFACTURE

PLASTIC WITHIN THE STATE OF TAMIL NADU OR COULD IT BE
MANUFACTURED FOR LIMITED PURPOSES, IDENTIFIED IN THE G.O
ITSELF?
1. It is humbly submitted before the Hon’ble Tribunal that there is No Absolute Bar to
manufacture ‘use and throw away’ plastic within the State of Tamil Nadu. There are
recognized exemptions in the G.O (Ms). No.84. for this purpose we rely on the case, M/s.
K. K. Plastic Waste Management Private Limited and Others v. State of
Karnataka32, It is humbly submitted that the GO does not impose an absolute bar to
manufacture plastic within the state of Tamil Nadu. “Plastic” means a material which
contains as an essential ingredient a high polymer such as polyethylene terephthalate,
high density polyethylene, vinyl, low density polyethylene, polypropylene, polystyrene
resins, multi-materials like acrylonitrile, butadiene styrene, polyphenylene oxide,
polycarbonate, polybutylene terephthalate.33

2. “Use and throwaway plastic” means items such as plastic carry bags or plastic flags,
plastic sheets used for food wrapping, spreading on dining table etc., plastic plates, plastic
coated tea cups and plastic tumbler, water pouches and packets, plastic straw irrespective
of thickness.34

3. According to the GO, no industry or individual will manufacture 'use and throwaway
plastics'.35 However the GO itself perceives five exceptions and allows making of use and
throwaway plastics in such cases36

4.1. Margo factory manufacturing factory does not fall within the barred
exemptions:

32
Appln.110/2016
33
Explanation 1, G.O (Ms).No. 84
34
Explanation 2, G.O (Ms).No. 84.
35
Direction 1 (a), G.O (Ms). No. 84
36
Proviso (b) to Direction 1 (b), G.O (Ms). No. 84
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4. Firstly, the important thing to be noted is that, the Margo India Ltd. is not located in a
Special Economic Zone (SEZ) nor is it an Export Oriented Unit (EOU).37 It has both
international as well as domestic operations.38 It is not engaged in manufacturing plastic
bags which form an integral part of packaging in which goods are sealed prior to us at
manufacturing / processing units. It is not engaged in manufacturing plastic bags and
sheets used in Forestry and Horticulture Nurseries against the order from the
Government Departments. It is not engaged in manufacturing plastic used for packing of
milk and milk products (dairy products), oil, medicine and medicinal equipments. It does
not manufacture carry bags made from compostable plastics bearing a label
‘compostable’ and conforming to the Indian Standard : IS or ISO 17088:2008 titled as
Specifications for ‘Compostable Plastics’.

4.2. Investigation report as conclusive proof:

5. The Respondent may contend that the examination report given by the Government of
Tamil Nadu, which comprises the proof in the moment case, is a nullity because of
rejection of the principle of natural justice. Nonetheless, in India, it has been for the most
part recognized that in instances of extraordinary earnestness, where enthusiasm of the
general population would be risks by the postponement or reputation engaged with a
hearing, a hearing before judgment would not be required by natural justice or in
outstanding instances of crisis where incite activity, preventive or medicinal, is required,
the prerequisite of notice and hearing might be forestalled. In this manner, if the privilege
to be heard will deaden the procedure, law will reject it. Along these lines, the
examination report will be considered as definitive proof.

4.3. Order for prohibition of manufacturing activities:

6. The Water (Prevention and Control of Pollution) Act, 1974

The meaning of pollution needs to be analysed, "Pollution" means such contamination of

water or such alteration of the physical, chemical or biological properties of water or such
discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance
into water (whether directly or indirectly) as may, or is likely to, create a nuisance or
render such water harmful or injurious to public health or safety, or to domestic,

37
Corrigendum to Moot Proposition, ¶ 11.
38
Corrigendum to Moot Proposition, ¶ 3.
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 commercial, industrial, agricultural or other legitimate uses, or to the life and health of
animals or plants or of aquatic organisms.39 No person shall knowingly cause or permit
any poisonous, noxious or polluting matter determined in accordance with such standards
as may be laid down by the State Board to enter (whether directly or indirectly) into any
stream.40

When the above credentials are connected to the present case, there is a contamination of
water due to the improper disposal of toxic waste from the factory, which has affected the
huge no. of people in the nearby locality in the form of disease and malnutrition. Adding
up affecting their source of income, as there was a subsequent issue of crop failure,
because of the contamination of soil as per the government agriculture department.

PRAYER

WHEREFORE, in light of the issues raised, arguments advanced and authorities cited, it is

humbly prayed before this Hon’ble Court to:

- The petition under sec.14 of NGT act, is not barred by the moratorium granted by the

hon’ble NCLT under Sec. 14 of IBC

- The petition under sec.14 is not barred by limitation and it is under the scope of

original jurisdiction conferred upon the NGT act.

- The tenets of sec.20 of IBC would not supersede G.O and permit the company to

proceed with manufacturing process.

39
The Water (Prevention and Control of Pollution) Act, 1974, S.2(e).
40
The Water (Prevention and Control of Pollution) Act, 1974, S.24.
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- Manufacture can be done to an extend of limited purpose according to the words of

G.O itself.

All of which is most humbly and respectfully submitted.

S/d_____________

COUNSEL FOR THE PETITIONER

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