15 A

SEVENTH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT

COURT COMPETITION, 2014

17TH

- 19TH

OCTOBER, 2014

BEFORE THE HON’BLE SUPREME COURT OF ARESSIA

TWO ARESSIAN STATES………………………………………PETITIONERNO. 1

SAVE THE FARMERS’ FORUM………………………………...PETITIONERNO. 2

FORUM FOR ENVIRONMENTAL RIGHT……………………….APPELLANT NO. 1

CENTRE FOR ENVIRONMENT RIGHTS AND ADVOCACY……...APPELLANT NO.2

V.

UNION OF ARESSIA………………………………………………..RESPONDENT

MEMORIAL ON BEHALF OF PETITIONER/APPELLANT

TEAM CODE 15

-SEVENTH JUSTICE HIDYATULLAH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2014-

Page | II

[Memorandum for Petitioner]

TABLE OF CONTENTS

LIST OF ABBREVIATIONS.............................................................................................. IV

INDEX OF AUTHORITIES ................................................................................................ V

STATEMENT OF JURISDICTION .................................................................................... IX

STATEMENT OF FACTS ................................................................................................... X

ISSUES RAISED ............................................................................................................... XII

SUMMARY OF ARGUMENTS ...................................................................................... XIII

BODY OF ARGUMENTS .................................................................................................... 1

I.THAT THE PETITION FILED BY FORUM FOR ENVIRONMENTAL RIGHT (FER) BEFORE

THE HIGH COURT OF NERUDA IS MAINTAINABLE .......................................................... 1

[A] THAT APPELLANT NO. 1 HAS LOCUS STANDI IN THE INSTANT MATTER...................... 1

i. That the NGO is a public-spirited person .............................................................. 2

ii. That there exists sufficient interest ....................................................................... 2

iii. That the petition filed is bona-fide ...................................................................... 3

[B] THAT THE CITIZENS OF BORESSIA ARE ‘AGGRIEVED PERSON’ ...................................... 4

i. That there exists a fundamental right .................................................................... 4

ii. That the fundamental right is being violated ........................................................ 5

II.THAT SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 IS ULTRA VIRES THE

CONSTITUTION OF ARESSIA .............................................................................................. 7

[A] THAT THERE IS ENCROACHMENT BY THE CENTER ON THE STATE POWERS ................... 7

i. That the powers of Union under Entry 56 of List I are confined ............................ 7

ii. That rivers in question are not ‘inter-state’ and the impugned act is a colourable

legislation ................................................................................................................ 8

iii. That the motive being commendable would not make the Act intra-vires ............. 9

[B] ARGUENDO: WITHOUT PREJUDICE TO THE ABOVE, EVEN IF THE LEGISLATION IS FRAMED

IN THE NATIONAL INTEREST, THE REQUISITE PROCEDURE HAS NOT BEEN COMPLIED WITH 10


Page | III


III.THAT THE EXCLUSION AND NON-IMPLEMENTATION OF LINKING OF RIVER PROJECT

FOR THE STATE OF VINDHYA WILL VIOLATE THE FUNDAMENTAL RIGHTS OF PEOPLE OF

STATE OF VINDHYA AND STATE OF NORMANDA ............................................................. 11

[A] THAT THERE IS INFRINGEMENT OF THE FUNDAMENTAL RIGHTS. ............................... 11

i. That different facets of right to life are being violated ......................................... 11

ii. That there was no reasonable classification ....................................................... 12

iii. That the exclusion is not within permissible limit of restriction. ........................ 13

[B] THAT SUSTAINABLE DEVELOPMENT IS POSSIBLE ....................................................... 14

i. That there exists a balance between development and conservation .................... 14

ii. That the State could be excluded due to excessive national interest .................... 15

IV.THAT THE LINKING OF RIVERS ACT, 2010 VIOLATES THE ENVIRONMENTAL RIGHTS

OF CITIZEN OF ARESSIA AND PROVISIONS OF THE FOREST CONSERVATION ACT, 1980 .. 16

[A] THAT THE ENVIRONMENTAL RIGHTS ARE BEING VIOLATED ....................................... 16

i. That the right to healthy environment is being violated ....................................... 16

ii. That the right to fresh drinking water is being violated ...................................... 17

ii. That the right to livelihood is being violated ..................................................... 18

[B] THAT THE ACT VIOLATES THE PROVISIONS OF FOREST CONSERVATION ACT, 1980 .... 18

i. That there is a duty to conserve forests ............................................................... 19

ii. That the Public Trust is being violated ............................................................... 19

PRAYER ......................................................................................................................... XIV


Page | IV


LIST OF ABBREVIATIONS

ABBREVIATION FULL FORM

¶ Paragraph

AIR All India Reporter

All LJ Allahabad Law Journal

ALT Andhra Law Times

AP LJ Andhra Pradesh Law Journal

Art. Article

BLJR Bihar Law Journal Reports

Bom. Bombay

Cal. Calcutta

Ed Edition

FC Federal Court

GLT Gauhati Law Times

Hon’ble Honourable

Ltd. Limited

NGO Non-Governmental Organisation

Ori. Orissa

Ors. Others

pg. Page

PIL PIL

Raj. Rajasthan

SC Supreme Court

SCALE Supreme CourtAlmanc

SCC Supreme Court Cases

SCR Supreme Court Reporter

SLP Special Leave Petition

Supp. Supplement

UOI Union of India

v. Versus

Vol. Volume


Page | V


INDEX OF AUTHORITIES

SUPREME COURT CASES

1. A.P. Pollution Control Board II v. Prof. M.C. Nayudu, AIR 1999 SC 812 ............. 16, 17

2. Ahmadabad Municipal Corporation v. Nawab Khan Gulab Khan(1997) 11 SCC 121 .. 18

3. Ammerunnisa Begum v. Mehboob Begum, AIR 1953 SC 91..................................... 11

4. Ashok Kumar Pandey v. State of WB, (2004) 3 SCC 363 .............................................. 2

5. Ashok Kumar v. UOI, AIR 1991 SC 1972. .................................................................... 8

6. B. Singh v. UOI (2004) 3 SCC 363 ............................................................................... 2

7. B.D. Sharma v. UOI, 1992, SCC 93 ............................................................................ 18

8. Bandhua Mukti Morcha v. UOI, (1984) 3 SCC 161 ................................................. 5, 11

9. Bangalore Medical Trust v. Muddappa B.S., (1991) 4 SCC 54 .................................. 4, 5

10. Banwasi Seva Ashram v. State of U.P. AIR 1987 SC 374 ....................................... 14,18

11. Centre for Environment & Food Security v. UOI (2011) 5 SCC 676 ............................. 5

12. Centre for PIL & Ors v. UOI & Ors, AIR 2013 SC 3725 ............................................. 20

13. Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465................................. 4

14. Chameli Singh and Ors. v. State of U.P. and Anr AIR 1996 SC 1051 .................... 10,17

15. Charan Lal Singh v. UOI, (1990) 1 SCC 598 .............................................................. 16

16. Chhetriya Pradushan Mukti Sangharsh Samiti v. State of U.P. AIR (1990) SC 2060... 16

17. Chiranjit Lal Chowdhuri v. UOI, (1950) SCR 869 ......................................................... 4

18. Common Cause, A Registered Society v. UOI & Ors, AIR 1999 SC 2979 ................... 20

19. Confederation of Ex-servicemen Association v. UOI, AIR 2006 SC 2945 ................. 10

20. D. S. Nakara v. UOI (1983) 1 SCC 305. .................................................................... 1, 3

21. Dalmia Cement (Bharat) Ltd. v. UOI, (1996) 10 SCC 104 ........................................... 11

22. Dattaraj Nathuji Thawarev. State of Maharashtra (2005) 1 SCC 590 ............................ 2

23. Dharam Dutt v. UOI, (2004) 1 SCC 712. ....................................................................... 9

24. Divine Retreat Centre v. State of Kerala (2008) 3 SCC 542. .......................................... 1

25. Fertilizer Corporation Kangar Union v. UOI, (1981) 1 SCC 658 ................................... 3

26. Fomento Resorts & Hotels Ltd. & Anr v. Minguel Martins & Ors, (2009) 3 SCC 571 . 20

27. Francis Coraile Mullin v. Administrator, UT of Delhi (1981) 1 SCC 608. ................ 5,11

28. Ghulam Qadir v. Special Tribunal (2002) 1 SCC 33 ...................................................... 4

29. Girjesh Srivastava v. State of M. P. (2010) 10 SCC 707. ............................................... 2

30. Greater Noida IDA v. Devendra Kumar &Ors (2011) 12 SCC 375 .............................. 20

31. Hinch Lal Tiwari v. Kamala Devi (2001) 6 SCC 496 ................................................... 17

32. Hindustan Paper Corporation Ltd. v. State of Kerala, (1986) 3 SCC 398 ................... 11

33. India Banks’ Assn. v. Devkala Consultancy Service, (2004) 11 SCC 1. ......................... 2

34. Indian Council for Enviro- Legal Action v. UOI, (1996) 5 SCC 261 ............................ 14


Page | VI


35. Jaora Sugar Mills Pvt. Ltd v. State of M.P. 1966 (1) SCR 523 .................................... 8

36. Joshi R. S. v. Ajit Mills Ltd., (1977) 4 SCC 98. ............................................... ……9, 10

37. K. C. Gajapati Narayana Dev v. State of Orissa, 1954 SCR 1. ...................................... 8

38. K. Chandru v. State of Tamil Nadu, AIR 1986 SC 204 ................................................ 18

39. Kansingh Kalusing Thakore v. Rabari Maganbhai Vashrambhai, (2006) 12 SCC 360.... 1

40. Kishen v. State of Orissa, AIR 1989 SC 677 ................................................................ 11

41. Kunhikaman v. State of Kerala, 1962 Supp (1) SCR 829 ............................................... 8

42. Lafarge Umiam Mining (P) Ltd. v. Union of India, (2011) 7 SCC 338........................ 19

43. M. C. Mehta v. UOI, (1987) Supp SCC 131 .................................................................. 5

44. M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388 .................................................... 17, 20

45. M.C. Mehta v. UOI, (2004) 12 SCC 118 ..................................................................... 20

46. M.C. Mehta v. UOI, AIR 1988 SC 1037:(1997) 2 SCC 411 ......................................... 17

47. M.I. Builders v. Radhey Shyam Sahu, AIR 1999 SC 2468 ........................................... 20

48. M.P. v. Kedia Leather & Liquor Ltd., AIR 2003 SC 3236. .......................................... 17

49. Meenakshi Mills Madurai v. A.V. Vishwanath Shastri, AIR 1955 SC 13 ................... 11

50. N.D. Jayal v. UOI, (2004) 9 SCC 362 .......................................................................... 13

51. Narendra Kumar v. State of Haryana (1994) 4 SCC 460 .......................................... 5, 11

52. Narmada Bachao Andolan v. UOI, (2000) 10 SCC 664 .............................. 11, 14, 17, 18

53. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180. .................. 10, 11, 17

54. Orissa State Co. v. State of Orissa, (1991) Supp. (1) SCC 430 ....................................... 8

55. Pathumma v. State of Kerela, AIR 1978 SC 771 .......................................................... 13

56. People’s Union v. UOI, (1982) 3 SCC 235 .................................................................... 4

57. PUCL v. UOI, (2004) 12 SCC 108 .............................................................................. 11

58. Ramesh Chander v. Imtiaz Khan, (1998) 4 SCC 760 ................................................... 18

59. Ramprasad Narayan Sahi v. State of Bihar, AIR 1953 SC 215 ..................................... 11

60. Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1985 SC 652 ............... 16

61. S. Jagannath v. UOI, (1997) 2 SCC 87 ........................................................................ 17

62. S. P. Gupta v. UOI, 1981 Supp SCC 87 ..................................................................... 2, 3

63. Shankara Narayana, B. R. v. State of Mysore, AIR 1966 SC 1571 ................................ 8

64. Sodan Singh v. N.D.M.C.,(1989) 4 SCC 155 ............................................................... 18

65. State of Bombay v. Balsara F.N., (1951) SCR 682......................................................... 8

66. State of H.P. v. Umed Ram, AIR 1986 SC 847 ............................................................ 18

67. State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83 ....................................... 5

68. State of Uttaranchal v. Balwani Singh, (2010) 3 SCC 402. ........................................... 3

69. Susetha v. State of T.N., (2003) 6 SCC 543. .............................................................. 13

70. Sushanta Tagore v. UOI, (2005) 3 SCC 16 .................................................................. 14


Page | VII


71. T.N. Godavarman Thirumalpad v. UOI, (2010) 13 SCC 316 ...................................... 19

72. The State of West Bengal v. Kesoram Industries Ltd. &Ors, AIR 2005 SC 1646 ......... 20

73. Unni Krishnan v. State of Andhra Pradesh, AIR 1993 SC 2178 ................................... 10

74. Vellore Citizens' Welfare Forum v. UOI, (1996) 5 SCC 647 ....................................... 17

75. Virender Gaur v. State of Haryana (1995) 2 SCC 577 ................................................ 16

76. Welfare Association A. R. P., Maharashtra v. Ranjit P. Gohil, (2003) 9 SCC 358. ......... 9

HIGH COURT CASES

1. Diwan Singh and another, v.The S.D.M. and other, 2000 ALL.L.J. 273 ................. 17

2. Gautam Uzir & Anr. v. Gauhati Municipal Corpn, 1999 (3) GLT 110 ..................... 17

3. Mahabir Prasad Jalan v. State of Bihar, AIR 1991 Pat. 40 .....................................7

4. Majra Singh & Ors v. Indian Oil Corporation & Ors, AIR 1999 J K 81 .................. 19

5. Mukesh Sharma v. Allahabad Nagar Nigam & Ors, 2000 ALL. L.J. 3077 ............... 17

6. Nature Lovers’ Movement v. State of Kerela, AIR 2000 Ker 131 ............................ 14

7. S.K. Garg v. State of UP, 1999 ALL. L.J. 332 ......................................................... 17

8. Wasim Ahmed Khan v. Govt. of AP, 2002 (5) ALT 526 (D.B.) .............................. 17

BOOKS REFERRED

1. A. A. DESAI, ENVIRONMENTAL JURISPRUDENCE (2ND

ed. 2002).

2. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8TH

ed. 2009).

3. DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA, (14TH

ed. 2009).

4. M.P. JAIN, INDIAN CONSTITUTIONAL LAW (6TH

ed. 2010).

5. P. LEELAKRISHNAN., ENVIRONMENTAL CASE LAW BOOK (2ND

ed. 2006).

6. P. S. JASWAL, ENVIRONMENTAL LAW (2ND

ed. 2006).

7. S. K. SARKAR, PUBLIC INTEREST LITIGATION (2ND

ed.2006).

8. S. SHANTHAKUMAR, INTRODUCTION TO ENVIRONMENTAL LAW (2ND

ed. 2008).

9. SHANTHAKUMAR, S., INTRODUCTION TO ENVIRONMENTAL LAW (2ND

ed. 2008).

10. SUMEET MALIK, ENVIRONMENTAL LAW (2ND

ed. 2012).

11. V. N.SHUKLA , CONSTITUTION OF INDIA (11TH

ed. 2008).


Page | VIII


STATUTES AND RULES

1. THE CONSTITUTION OF INDIA, 1950.

2. ENVIRONMENTAL (PROTECTION) RULES, 1986.

3. FOREST (CONSERVATION) ACT, 1980.

4. NATIONAL FOREST POLICY, 1988.

5. ENVIRONMENTAL IMPACT ASSESSMENT NOTIFICATION, 2006.

6. FOREST CONSERVATION RULES, 2000.

TREATIES AND CONVENTIONS

1. INTERNATIONAL CONVENTION ON WETLANDS OF INTERNATIONAL IMPORTANCE, 1987.

2. STOCKHOLM DECLARATION, 1972.

3. CONVENTION ON BIOLOGICAL DIVERSITY, 1992.

LEXICONS

1. BRIAM A. GARNER,BLACK’S LAW DICTIONARY (10th ed. 2014).

2. P RAMANATHAAIYAR, THE MAJOR LAW LEXICON 3531 (4thed 2010).

3. SALLY WEHMEIER, OXFORD ADVANCED LEARNER’S DICTIONARY (7th ed. 2005).


Page | IX


STATEMENT OF JURISDICTION

The Hon’bleSupreme Court of Aressia exercises original jurisdiction under Article 131 of the

Constitution of Aressia to adjudicate the instant matter filed by Petitioner No.1.

The Hon’bleSupreme Court of Aressia exercises appellate jurisdiction under Article 133 of

the Constitution of Aressia to adjudicate the instant matter filed by Appellant No.1.

The Hon’bleSupreme Court of Aressia exercises original jurisdiction under Article 32 of the

Constitution of Aressia to adjudicate the instant matter filed by Petitioner No.2.

The Hon’bleSupreme Court of Aressia exercises appellate jurisdiction under Section 22 of

the National Green Tribunal Act, 2010 to adjudicate the instant matter filed by Appellant

No.2.


Page | X


STATEMENT OF FACTS

-BACKGROUND-

Aressia is a South Asian country whose economy is mainly based on agriculture and

fisheries. In the year 2009, highlighting the plight of farmers, womenfolk and others due to

acute shortage of water, a writ petition was filed by Aressian Civil Liberties Union before the

Hon’bleSupreme Court of Aressia wherein the NGO suggested the “Linking of Rivers”

across the country. The Supreme Court disposing the writ petition on 24th September 2009

directed the Central Government (hereinafter referred as the Respondent) to constitute two

committees for the same.

-CONSTITUTION OF COMMITTEES-.

In December 2009 on direction of the Supreme Court the Respondent appointed two

committees. One committee was the High Level Expert Committee to conduct a study of the

viability of the Linking of River project across the country. The other committee was to

conduct an Environment Impact Assessment pertaining to Linking of Rivers. In May 2010,

various rivers which could be linked together were approved for the project pertaining to a

detailed report and suggested certain precautionary measures to avoid environmental harms.

-THE LINKING OF RIVERS ACT, 2010-

In August, 2010 the Respondent enacted legislation, The Linking of Rivers Act, 2010 which

empowered the Respondent to take all such measures for the purpose of ensuring availability

and accessibility of water and linking of rivers all over the country. On September 28, 2010

an Authority for Linking of Rivers (herein after referred to as ALR) through a notification

in official gazette was constituted in the exercise of the power conferred by the Act.

-IMPLEMENTATION OF THE PROJECT-

The various state governments in Aressia criticized the idea of linking of rivers due to

adverse environmental concerns. Due to the criticisms and opposition from various states and

NGOs the former Government decided not to implement the project immediately. In

February 2012, the ALR published a list of rivers included in the first phase of the Project.

The aforesaid rivers belong exclusively to the states and only after the implementation of the

project would they become inter-state.

-ISSUE OF ULTRA VIRES-


Page | XI


In March 2012, the Linking of Rivers Act, 2010 enacted by the Respondent was challenged

by the state of Adhali and Parmala(hereinafter referred to as Petitioner No. 1) stating that

Section 3 of the Act was ultra vires to the Constitution of Aressia and was an encroachment

by the Centre on the State’s power.

-THE ISSUE OF EXCLUSION OF STATE OF VINDHYA FROM THE PROJECT-

The State of Vindhya included in the Ramsar List of Wetlands of International Importance

after the submission of the report by EIA Committee appointed by State of Vindhya the

Respondent under the wheel of international obligations decided to exclude the state of

Vindhya from the Project. In December, 2012 Save the Farmers Forum (herein after

referred to as Petitioner No. 2) comprising of the farmers of state of Normanda and state of

Vindhya filed a writ petition before the Hon’bleSupreme Court arguing that the non-

implementation of the project for state of Vindhya would violate the Fundamental Rights of

people of State of Normanda and state of Vindhya.

-THE ISSUE OF RIVER BHARGAVI-

The Respondent included a trans- boundary river, Bhargavi in the Project the Forum for

Environmental Rights (hereinafter referred to as Appellant no. 1) filed a petition in the

High Court of Neruda, the state from which river Bhargavi originates. Stating that linking of

the river would violate the Right to Livelihood of citizens of Boressia, the country where the

river Bhargavi ends. The Respondent raised a preliminary objection, owing to which, the

High Court dismissed the Petition on January 3, 2014. Aggrieved by this order Appellant No.

1 approached the Hon’bleSupreme Court of Aressia.

-THE ISSUE OF LEGALITY OF THE ACT-

In March, 2014 a news channel telecasted a disturbing interview wherein the members of the

EIA committee confessed to giving a favorable report due to political pressure. On 2 April,

2014 Centre for Environment Rights and Advocacy (hereinafter referred to as Appellant

No. 2) approached the National Green Tribunal of Aressia challenging the legality of the

Linking of Rivers Act, 2010 and violation of provisions of Forest Conservation Act, 1980.

On 4 July, 2014 the Tribunal dismissed the Petition. On 5 August 2014, aggrieved by the

order Appellant No. 2 approached the Supreme Court of Aressia.

The Hon’bleSupreme Court for the sake of convenience decided to hear all the petitions

together. Hence this petition.


Page | XII


ISSUES RAISED

I. WHETHER THE PETITION FILED BY FORUM FOR ENVIRONMENTAL RIGHTS

(FER) IS MAINTAINABLE BEFORE THE HIGH COURT OF NERUDA?

II. WHETHER SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 IS ULTRA

VIRES TO THE CONSTITUTION OF ARESSIA?

III. WHETHER, THE EXCLUSION AND NON IMPLEMENTATION OF LINKING OF

RIVER PROJECT FOR THE STATE OF VINDHYA IS VIOLATIVE OF

FUNDAMENTAL RIGHTS OF PEOPLE OF STATE OF VINDHYA AND STATE OF

NORMANDA?

IV. WHETHER THE LINKING OF RIVERS ACT, 2010 VIOLATES THE

ENVIRONMENTAL RIGHTS OF CITIZENS OF ARESSIA AND THE PROVISIONS OF

FOREST (CONSERVATION) ACT, 1980?


Page | XIII


SUMMARY OF ARGUMENTS

I. THAT THE PETITION FILED BY FORUM FOR ENVIRONMENTAL RIGHT (FER) BEFORE THE

HIGH COURT OF NERUDA IS MAINTAINABLE

The petition filed before the High Court of Neruda is maintainable. Firstly, the appellant has

locus standi in the instant matter as it is a bona-fide petition having sufficient interest filed by

a public spirited person. Secondly, there has been violation of Fundamental Rights of citizens

of Boressia.

II. THAT SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 IS ULTRA VIRES THE

CONSTITUTION OF ARESSIA

Section 3 of the Linking of Rivers Act, 2010 is ultra vires the Constitution. Firstly, there is

encroachment by the Center on the State powers as the subject matter of the act is covered

under the State list. Secondly, even if the Union wishes to frame a law in the State List for a

national interest, the requisite procedure has not been followed.

III. THAT THE EXCLUSION AND NON-IMPLEMENTATION OF LINKING OF RIVER PROJECT FOR

THE STATE OF VINDHYA WILL VIOLATE THE FUNDAMENTAL RIGHTS OF PEOPLE OF STATE

OF VINDHYA AND STATE OF NORMANDA

The directions given by the Central Government to the the Authority for Linking of rivers to

exclude the State of Vindhya from the Linking of River Project would result into violation of

Fundamental Rights of the people of State of Vindhya and Normanda. Firstly, there is an

infringement of fundamental rights violating the right to life and equality of the people.

Secondly, that the project could have been implemented following the principle of sustainable

development.

IV. THAT THE LINKING OF RIVERS ACT, 2010 VIOLATES THE ENVIRONMENTAL RIGHTS OF

CITIZEN OF ARESSIA AND PROVISIONS OF THE FOREST CONSERVATION ACT, 1980

The ‘Interlinking of Rivers Act, 2010, is not valid. Firstly, it violates the environmental rights

of the citizens due to ignorance of certain ill-facets of the project. Secondly, the clearance

obtained by the ALR may be rigged according to a television interview which if true, would

be grave violation of the Forest Conservation Act, 1980.


Page | 1


BODY OF ARGUMENTS

I. THAT THE PETITION FILED BY FORUM FOR ENVIRONMENTAL RIGHT (FER) BEFORE THE

HIGH COURT OF NERUDA IS MAINTAINABLE

1. It is most respectfully submitted before the Hon’bleCourt that the petition filed before the

High Court of Neruda is maintainable. It is submitted that “PIL” means a legal action

initiated in a Court of law for the enforcement of public interest or general interest in which

the public or a class of community have pecuniary interest or some interest by which their

legal rights or liabilities are affected.1

2. It is further submitted that only a person acting bona fide and having sufficient interest in the

proceeding of PIL will alone have locus standiand can approach the Court to wipe out the

tears of the poor and needy suffering from violation of their fundamental rights but not a

person for personal gain or private gain or private profit or political or any oblique

consideration.2 In the present case, the Forum for Environmental Right [herein referred as

“Appellant No.1”] has locus standi in the instant matter [A] and there has been violation of

Fundamental Rights of citizens of Boressia[B].

[A] THAT APPELLANT NO. 1 HAS LOCUS STANDI IN THE INSTANT MATTER

3. It is humbly submitted that any member of the public having sufficient interest can maintain

an action for judicial redress for public injury arising from breach of public duty or from

violation of some provision of the Constitution or the law and seek enforcement of such

public duty and observance of such constitutional or legal provision.3 It is further submitted

that the rule for Locus standi in case of a PIL is iterated as a person acting bona-fide and

having sufficient interest in the proceeding of PIL will alone have a locus standi and can

approach the Court to wipe out violation of fundamental rights and genuine infraction of

statutory provisions, but not for personal gain or private profit or political motive or any

1 ILI, RESTATEMENT OF INDIAN LAW: PIL 10 ( 2nd ed., 2012).

2 Kansingh Kalusing Thakore v. Rabari Maganbhai Vashrambhai (2006) 12 SCC 360; Divine Retreat Centre v.

State of Kerala (2008) 3 SCC 542. 3 D. S. Nakara v. UOI (1983) 1 SCC 305.


Page | 2


oblique consideration.4 In the present case Appellant No. 1 is a public-spirited person [i], has

sufficient interest in the matter [ii] and has bona fide intention [iii].

i. That the NGO is a public-spirited person

4. Reliance is placed on the case of S. P. Gupta v. Union of India5 wherein relaxing the rule of

locus standi a legal wrong or a legal injury is caused to a person or to a determinate class of

persons by reason of violation of any constitutional or legal right or any burden is imposed in

contravention of any constitutional or legal provision or without authority of law or any such

legal wrong or legal injury or illegal burden is threatened and such person or determinate

class of persons is by reason or poverty, helplessness or disability or socially or economically

disadvantaged position, unable to approach the Court for relief, any member of the apublic

can maintain an application for an appropriate direction, order or writ in the High Court under

Article 226.

5. It is humbly submitted that Appellant No.1 is an NGO working in the field of environmental

rights and had approached the High Court of Neruda on infringement of rights of the people

of Boressia mainly fisherman who comprise of the economically and socially backward class

of the society.

ii. That there exists sufficient interest

6. Reliance is placed on the case of India Banks’ Assn. v. Devkala Consultancy Service6

wherein it was held that while entertaining a PIL, the Supreme Court in exercise of its

jurisdiction under Article 32 of the Constitution and the High Courts under Article 226

thereof are entitled to entertain a petition moved by a person having knowledge in the

subject-matter of the list and thus, having an interest therein, as contradistinguished from a

busy body, in the welfare of the people. The rule of locus standi has been relaxed by the

Courts for such purposes with a view to enable citizen of India to approach the Courts to

vindicate legal injury or legal wrong caused to a section of people by way of violation of any

statutory or constitutional right. Even where a writ petition has been held to be not

maintainable on the ground or otherwise the lack of locus, the Court in larger public interest

has entertained a writ petition. It is further submitted that when public interest is affected by a

4 Dattaraj Nathuji Thaware v. State of Maharashtra (2005) 1 SCC 590; Ashok Kumar Pandey v. State of WB

(2004) 3 SCC 363; B. Singh v. UOI (2004) 3 SCC 363; Girjesh Srivastava v. State of M. P. (2010) 10 SCC 707.

5 S. P. Gupta v. UOI, 1981 Supp SCC 87. 6 India Banks’ Assn. v. Devkala Consultancy Service (2004) 11 SCC 1.


Page | 3


State action, an organisation which has special interest in the subject-matter or a member

thereof should be allowed to apply.7

7. It is humbly submitted that the Union Government supports public participation in taking

environmental considerations.8 PIL has successfully demonstrated that responsible non-

governmental organisation and public-spirited individuals can bring about significant

pressure on polluting units for adopting abatement measures. The commitment and expertise

will be encouraged and their practical work supported.9

8. It is submitted that a non-governmental organization (NGO) is defined as "private

organizations that pursue activities to relieve suffering, promote the interests of the poor,

protect the environment, provide basic social services, or undertake community

development".10

Further it is submitted that an international non-governmental

organization (INGO) has the same mission as a non-governmental organization (NGO), but it

is international in scope and has outposts around the world to deal with specific issues in

many countries.

9. In the present case, Appellant No.1 is an international NGO having expertise in

environmental rights of people. Herein, the rights of the citizens of Boressia are being

violated because of a law framed by the Union of Aressia. Since, the NGO possesses

requisite information relating to environmental rights, it has sufficient interest in the matter.

iii. That the petition filed is bona-fide

10. Relying on the case of State of Uttaranchal v. Balwant Singh11

wherein it was held that the

Court should ensure that the PIL is aimed at redressal of genuine public harm or public injury

and that there is no personal gain, private or oblique motive behind the PIL, it is contended

that the petition filed by Appellant No.1 in High Court is bona-fide. Where a public injury

has been committed by the State or a public authority, by an act or omission which is contrary

to the Constitution or a law, any member of the public can maintain an action for redressing

7 Fertilizer Corporation Kangar Union v. UOI, (1981) 1 SCC 658; S. P. Gupta v. UOI (1981) Supp SCC 87; D.

S. Nakara v. UOI, (1983) 1 SCC 305. 8 A. A. DESAI, ENVIRONMENTAL JURISPRUDENCE 401 (2ND ed. 2002).

9 Moot Proposition, ¶11. 10

P. S. JASWAL, ENVIRONMENTAL LAW 157 (2NDed. 2006). 11 State of Uttaranchal v. Balwani Singh (2010) 3 SCC 402.

http://en.wikipedia.org/wiki/Non-governmental_organization


Page | 4


that public injury, provided only he acts bona fide and not for personal or private gain, or out

of political motivation or other oblique consideration.12

11. It is humbly submitted that the nature of the Appellant No.1 being international in nature,

there arises no private vendetta on their behalf. Appellant No. 1 is concerned with

environmental rights of people. In the present case, the rights of people of Boressia are being

violated and hence the petition was filed pro bono publico for the same. It is submitted that if

the case had been opposite in nature, the role of Appellant No. 1 would have been same.

Thus, there exists a bona-fide intention.

[B] THAT THE CITIZENS OF BORESSIA ARE ‘AGGRIEVED PERSON’

12. It is most humbly submitted that the fundamental rights of the citizens of Boressia is being

violated as the inclusion of river ‘Bhargavi’ will lead to destruction of forest area and

wildlife, submergence of wetlands and violation of right to livelihood of thousands of

fishermen in Boressia. It is thus submitted that there exists a right[i], further the right is being

violated[ii].

i. That there exists a fundamental right

13. It is humbly submitted that the existence of a legal right of the Petitioner which is alleged to

have been violated is the foundation for invoking the jurisdiction of the High Court under

Article 226.13

It is further submitted that the person who complains of the infringement of a

fundamental right must show that the alleged fundamental right belongs to him.14

14. It is submitted that the Constitution of Aressia guarantees right to life and personal liberty to

every person. According to the tenor of the language used in Article 21, it will be available

not only to every citizen of this country, but also to a ‘person’ who may not be a citizen of the

country. Just as the State is under an obligation to protect the life of every citizen in this

country, so also the State is under an obligation to protect the life of the persons who are not

citizens.15

It is further submitted that the power of the High Court to issue writs can be for the

enforcement of fundamental rights. Also, according to the Constitution of Aressia, the State

cannot make any law which takes away or abridges the fundamental rights.

12 People’s Union v. UOI (1982) 3 SCC 235; Bangalore Medical Trust v. Muddappa B.S. (1991) 4 SCC 54. 13 Ghulam Qadir v. Special Tribunal (2002) 1 SCC 33. 14 Chiranjit Lal Chowdhuri v. UOI (1950) SCR 869. 15 Chairman, Railway Board v. Chandrima Das (2000) 2 SCC 465.


Page | 5


15. It is most respectfully submitted that Appellant No.1 has approached on behalf of the citizens

of Aressia who have a right to life under the Constitution of Aressia and can approach the

High Court if this right is being infringed by a law (inclusion of River Bhargavi).

ii. That the fundamental right is being violated

16. It is most respectfully submitted that the inclusion of River Bhargavi in the interlinking of

rivers project violates the fundamental right of the citizens of Boressia. It is humbly

submitted that right to livelihood is higher than a mere legal right and is an integral part of

right to life under Article 21.16

17. Reliance is placed on Virendra Gaur v. State of Haryana17

wherein it was held that the word

‘environment’ is of broad spectrum which brings within its ambit “hygienic atmosphere and

ecological balance”. It is, therefore, not only the duty of the State but also the duty of every

citizen to maintain hygienic environment. The State, in particular has duty in that behalf and

to shed its extravagant unbridled sovereign power and to forge in its policy to maintain

ecological balance and hygienic environment. Article 21 protects right to life as a

fundamental right. Enjoyment of life and its attainment including their right to life with

human dignity18

encompasees within its ambit, the protection and preservation of

environment, ecological balance free from pollution of air and water, sanitation without

which life cannot be enjoyed. Any contradictory acts or actions would cause environmental

pollution. Environmental, ecological, air, water, pollution etc. should be regarded as

amounting to violation of Article 21. Therefore, hygienic environment is an integral facet of

right to healthy life19

and it would be impossible to live with human dignity without a

humane and healthy environment20

. Environmental protection, therefore, has now become a

matter of grave concern for human existence. Promoting environmental protection implies

maintenance of the environment as a whole comprising the man-made and natural

environment. Therefore, there is a constitutional imperative on the State government and the

municipalities, not only to ensure and safeguard proper environment but also an imperative

duty to take adequate measures to promote, protect and improve both the man-made and the

natural environment.

16 Centre for Environment & Food Security v. UOI (2011) 5 SCC 676; Narendra Kumar v. State of Haryana

(1994) 4 SCC 460. 17 Virendra Gaur v. State of Haryana (1995) 2 SCC 577; Bangalore Medical Trust v. B. S. Muddappa (1991) 4

SCC 54. 18 Francis Coraile Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC 608. 19 State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83. 20 M. C. Mehta v. UOI (1987) Supp SCC 131; Bandhua Mukti Morcha v. UOI (1984) 3 SCC 161.


Page | 6


18. It is humbly submitted that environmental threats do not respect national borders. Any change

in the ecology in one country would be transnational in nature. It is further submitted that any

change in the ecosystem affects the wildlife and aquatic life also which would lead to death

of thousands of species of animals, birds and fish. Since the livelihood of thousands of

fishermen in Boressia depends on this aspect of the ecosystem and the linking of river

Bhargavi would affect their livelihood, thus, there is a violation of the fundamental rights of

the people of Boressia who are economically dependent on this livelihood.

In the light of the arguments advanced and authorities cited, it is most respectfully submitted

that there exists a locus standi in the aforesaid matter where violation of thousands of

fishermen of Boressia is being affected. Thus, the impugned judgement of High Court should

be set aside and the petition be held maintainable.


Page | 7


II. THAT SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 IS ULTRA VIRES THE

CONSTITUTION OF ARESSIA

19. It is humbly submitted that Section 3 of the Linking of Rivers Act, 2010 is ultra vires the

Constitution as there is encroachment by the Center on the State powers; [A]. [B] Arguendo:

Without prejudice to the above, even if the legislation is framed in the national interest, the

requisite procedure has not been complied with.

[A] THAT THERE IS ENCROACHMENT BY THE CENTRE ON THE STATE POWERS

20. It is humbly submitted before the Hon’bleCourt that the Centre has encroached upon the

State’s power by giving powers to the Central Government under Section 3 of the Linking of

Rivers Act, 2010. [herein after referred as the “Impugned Act”]. It is thus submitted that

the powers of Union under Entry 56 of List I are confined [i]. Further, the rivers in question

are not ‘inter-state’ and the impugned act is a colourable legislation[ii] and that the motive

being commendable does not make a legislation intra-vires [iii].

i. That the powers of Union under Entry 56 of List I are confined

21. It is most respectfully submitted that the powers of Union under Entry 56 of List I is

confined.

22. Entry 17 of List II reads as:

Water, that is to say, water supplies, irrigation and canals, drainage and embankments,

water storage and water power project subject to the provisions of entry 56 of list I.

23. Entry 56 of List I reads as:

Regulation and development of inter-state rivers and river valleys to the extent to which such

regulation and development under the control of the Union is declared by Parliament by law

to be expedient in the public interest.

24. It is submitted that when one entry is made ‘subject to’ another Entry, it means that out of the

scope of the former Entry, a field of legislation covered by the latter Entry has been reserved

to be specially dealt with by the appropriate legislature.21

Reliance is placed on Orissa

Cement Co. v. State of Orissa22

,wherein a similar case where Entry 24 of the State List was

21 Mahabir Prasad Jalan v. State of Bihar, AIR 1991 Pat. 40. 22 Orissa State Co. v. State of Orissa (1991) Supp. (1) SCC 430.


Page | 8


subject to Entries 7 and 52 of the Union List, it was held that the exclusion of the State

Legislature is not total, it would be confined only to those aspects of the industry which are

brought under the control of the Union by the relevant legislation. It is contended that in the

present case, only the regulation and development of inter-state rivers and river valleys fall

under the jurisdiction of the Union, while the management of the water resources is within

the jurisdiction of State. It is further contended that the state power to legislate on any subject

not ‘occupied’ by the Union legislation survives.23

ii. That rivers in question are not ‘inter-state’ and the impugned act is a colourable

legislation

25. It is humbly submitted that the doctrine of colourable legislation means that if the

Constitution of a State distributes the legislative spheres marked out by specific legislative

entries, or if there are limitations on the legislative authority in the shape of fundamental

rights, questions do arise as to whether the legislature in a particular case has not, in respect

to the subject-matter of the statute or in the method of enacting it, transgressed the limits of

its constitutional powers. Such transgression may be patent, manifest or direct, but may also

be disguised, covered and indirect and it is to this latter class of cases that the expression

“colourable legislation” has been applied in certain judicial pronouncements.24

It is also

called “Legislative fraud” in legal parlance.25

It is submitted that the idea conveyed by the

expression is that although apparently a Legislature is passing a statute purporting to act

within limits of its powers yet in substance and in reality has transgressed these powers,26

the

transgression being veiled by what appears, on proper examination, to be a mere pretence or

disguise.27

It is humbly contended that in the present case, the Centre has transgressed the

powers of the State in such a disguise.

26. It is humbly submitted that in order to determine the true nature of a legislation impeached as

colourable, the Court must look to the substance and not merely the form of the Act.28

Further, it is submitted that it should also be clearly understood that the doctrine against

colourable legislation has nothing to do with the motive of the legislation; it is in essence a

question of vires or power of the Legislature to enact the law in question.29

Thus, the

23 State of Bombay v. Balsara F.N. (1951) SCR 682. 24 K. C. Gajapati Narayana Dev v. State of Orissa, 1954 SCR 1; Kunhikaman v. State of Kerala 1962 Supp (1)

SCR 829; Shankara Narayana, B. R. v. State of Mysore, AIR 1966 SC 1571. 25 Ashok Kumar v. UOI, AIR 1991 SC 1972. 26 Jaora Sugar Mills Pvt. Ltd v. State of M.P. 1966 (1) SCR 523. 27 K. C. Gajapati Narayana Dev v. State of Orissa, 1954 SCR 1. 28 Ibid. 29 Dharam Dutt v. UOI (2004) 1 SCC 712.


Page | 9


Courthas to examine the object of the legislation for the purpose of ascertaining the true

character and substance of the enactment and the class of subjects of legislation to which it

really belongs and not for finding out the motives which induced the Legislature to exercise

its powers.30

27. It is humbly submitted that it follows that if a legislation, apparently enacted under one Entry

in the Legislative List, falls in truth and fact, within the content not of that Entry, but of one

assigned to another Legislature, it can be struck down as colourable even though the motive

of the legislature was commendable.31

28. It is humbly submitted that in the present case, the clear conflict is between Entry 56 of List I

and Entry 17 of List II. It is also apparent from the facts that the rivers are under the exclusive

jurisdiction of the States and only after the linking is complete would the rivers become inter-

state.32

Thus it is contended that the interpretation of the word ‘inter-state’ comes into play

here.

29. It is submitted that Inter-state is defined as “pertaining to the mutual relations of the states;

existing between or including, different states ”33

It is further submitted that under Entry 56

of List I the Union has power to legislate for the regulation and development of inter-state

rivers, which do not exist in the present case. It is contended that only when the rivers would

be linked that the rivers would become inter-state and it is evident that something that doesn’t

exist, the Union cannot have power to legislate on that subject.It is the humble submission

that substance of the impugned Act is that it seeks to frame laws for rivers which are under

the exclusive jurisdiction of one-state and thus covered under the State List. The Union is

thus encroaching upon the powers of the State by disguising it under the ambit of ‘inter-state’

rivers.

iii. That the motive being commendable would not make the Act intra-vires

30. It is humbly submitted that if a legislation, apparently enacted under one Entry in the

Legislative List, falls in truth and fact, within the content not of that Entry, but of one

30 Welfare Association A. R. P., Maharashtra v. Ranjit P. Gohil (2003) 9 SCC 358. 31 Joshi R. S. v. Ajit Mills Ltd. (1977) 4 SCC 98. 32 Moot Proposition, ¶ 9. 33

P RAMANATHAAIYAR, THE MAJOR LAW LEXICON 3531 (4thed 2010).


Page | 10


assigned to another Legislature, it can be struck down as colourable even though the motive

of the legislature was commendable.34

31. Thus, it is submitted that even if the legislation was formed in the national interest, the Union

cannot transgress upon the waters over which the States have jurisdiction to frame a law in

this regard.

[B] ARGUENDO: WITHOUT PREJUDICE TO THE ABOVE, EVEN IF THE LEGISLATION IS

FRAMED IN THE NATIONAL INTEREST, THE REQUISITE PROCEDURE HAS NOT BEEN

COMPLIED WITH

32. It is humbly submitted before the Hon’bleCourt that the Constitution empowers the Union to

make laws on State subjects in case of a national interest. It is humbly submitted that even if

the Union wants to legislate under a subject mentioned in the State List, there is a requisite

procedure which has to be followed in doing the same provided under Article 249(1) of the

Constitution which requires a special majority of the States. This procedure has not been

complied with at any stage. In the present case, as is apparent from the facts35

the various

state governments had initially criticized the idea of Linking of Rivers and due to the

criticisms and oppositions the project was put on hold. When the new government came into

power, the first phase of the project was implemented without the consent of the States. It is

apparent from the facts and circumstances of the case, that Centre has been trying to

transgress the powers of the State and even if the motive is taken into account, it would not

make the impugned Act intra vires as the requisite procedure has not been complied with.

Therefore, in light of arguments advanced and authorities cited, it is humbly submitted that

the Centre has encroached upon the powers of the State.

34Joshi R. S. v. Ajit Mills Ltd. (1977) 4 SCC 98. 35Moot Proposition, ¶ 7.


Page | 11


III. THAT THE EXCLUSION AND NON-IMPLEMENTATION OF LINKING OF RIVER PROJECT

FOR THE STATE OF VINDHYA WILL VIOLATE THE FUNDAMENTAL RIGHTS OF PEOPLE OF

STATE OF VINDHYA AND STATE OF NORMANDA

33. It is humbly submitted that the directions given by the Central Government [hereafter

referred as “Respondent”]to the Authority for Linking of rivers [hereafter referred as

“ALR”] to exclude the State of Vindhya from the Linking of River Project would result into

violation of basic Fundamental Rights of the people of State of Vindhya and Normand. It is

humbly submitted that ‘Save the Farmers Forum’ [hereafter referred as “Petitioner No.2]

seek issuance of writ of mandamus as there is violation of the fundamental rights,[A]. Further

sustainable development is possible,[B].

[A]THAT THERE IS INFRINGEMENTOF THE FUNDAMENTAL RIGHTS.

34. It is most respectfully submitted that the exclusion of State of Vindhya infringes the

fundamental rights of the people of State of Vindhya and Normanda. It is contended that

different facets of right to life are violated [i], that there was no reasonable classification [ii]

and that the exclusion is not within permissible limits [iii].

i. That different facets of right to life are being violated

35. It is humbly submitted that Article 21 is the heart of the Fundamental Rights.36

It is further

submitted that the right to life guaranteed under this Article embraces within its sweep not

only physical existence but the quality of life.37

Reliance is placed on Chameli Singh v. State

of Uttar Pradesh38

wherein it was observed that right tolife guaranteed in any civilized

society implies the right to food, water, decent environment, education, medical care and

shelter and these are basic human rights known to any civilized society.

36. It is submitted that the economy of Aressia is agrarian and due to the shortage of there have

been instances of commission of suicide by the farmers.39

Further, the state of Normanda is

facing acute scarcity of water40

and because of the gravity of situation the state of Vindhya

was included in first phase of the project.41

It is contended that non-exclusion of state of

36 Unni Krishnan v. State of Andhra Pradesh, AIR 1993 SC 2178. 37 Confederation of Ex-servicemen Association v. UOI, AIR 2006 SC 2945; Olga Tellis v. Bombay Municipal

Corporation, AIR 1986 SC 180. 38 Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 1051. 39 Moot Proposition, ¶ 1. 40 Ibid. ¶ 12. 41 Ibid, ¶ 9.


Page | 12


Vindhya from the Linking of River Project deprives the people of State of Normanda as well

as state of Vindhya of the basic necessities of life and thus violates the various facets of rights

of the people of both the states covered under the ambit of Article 21.

37. It is submitted that water is essence of life and any denial of water implies a denial of right to

life. Reliance is placed on Narmada Bachao Andolan v. Union of India42

wherein it was

observed that:

“Water is the basic need for the survival of human beings and is part of the right to

life and human rights as enshrined in Article21 of the Constitution of Aressia and can

be served only by providing source of water where there is none.”

38. It is further contended that violation of right to water in result violates the right to food43

as

the economy of Aressia is mainly agrarian and water is needed for irrigation facilities. Right

to livelihood is an integral facet of the right to life.44

Relying on the case of Dalmia Cement

(Bharat) Ltd. v. Union of India45

wherein it was held that right of agriculturists to cultivation is a

part of their fundamental right to livelihood it is humbly submitted that the farmers of both the

States are being denied this opportunity which infringes this right.

ii. That there was no reasonable classification

39. It is humbly submitted before the Hon’bleSupreme Court that the classification under Article

14 needs to be reasonable. Further it is submitted that, if the classification is based on

unreasonable footing, then the classification would itself render the action invalid.46

40. It is submitted that to pass the test of permissible classification two conditions must be

fulfilled: (i) that the classification must be founded on intelligible differentia and (ii) that the

differentia must have a rational relation to the object sought to be achieved by the statute in

question.47

41. It is humbly submitted before the Hon’bleCourt that exclusion of state of Vindhya alone from

the proposed project is in violation of Article 14 because there was no intelligible differentia

42 Narmada Bachao Andolan v. UOI (2000) 10 SCC 664. 43 PUCL v. UOI (2004) 12 SCC 108, Kishen v. State of Orissa, AIR 1989 SC 677; Francis Coralie Mullin v.

Union Territory, AIR 1981 SC 746; Bhandua Mukti Morcha v. UOI, AIR 1984 SC 802. 44 Narendra Kumar v. State of Haryana, JT (1994) 2 SC 94. Olga Tellis v. Bombay Municipal Corporation, AIR

1986 SC 180. 45 Dalmia Cement (Bharat) Ltd. v. UOI (1996) 10 SCC 104. 46 Ammerunnisa Begum v. Mehboob Begum, AIR 1953 SC 91; Ramprasad Narayan Sahi v. State of Bihar,

AIR 1953 SC 215; Meenakshi Mills Madurai v. A.V. Vishwanath Shastri, AIR 1955 SC 13. 47 Hindustan Paper Corporation Ltd. v. State of Kerala (1986) 3 SCC 398.


Page | 13


of classification. The classification was made because State of Vindhya has the largest

wetland in the country and is included in Ramsar list of Wetlands of International

Importance.48

42. It is submitted that only State of Vindhya being excluded from the Linking of River project

due to damage to the wetland is not a reasonable classification. It is contended that State of

Vindhya being designated as the ‘largest wetland’49

, inference can be made that there existed

other wetlands in the country. It can be apprehended that if the project damages the wetland

of Vindhya, it will damage the other wetlands in the same manner. It is humbly submitted

that each wetland is important for national economy.50

It is humbly submitted that exclusion

of state of Vindhya in accordance with the international obligations51

is arbitrary in nature.

43. Further it is humbly submitted that the suitable wetlands are designated by the contracting

party for inclusion in the list.52

Also, the inclusion of wetlands in the list doesn’t prejudice the

sovereign rights of the contracting party.53

It is submitted that in the exercise of its sovereign

rights the Respondents have notified the Wetlands Conservation and Management Rules. It is

further submitted that these rules specifically exclude ‘major river channels’ from the

definition of wetlands.It is humbly submitted that the interlinking of rivers projects involves

the linking of major rivers of the country and thus does not come within the ambit of

reasonable classification.

iii. That the exclusion is not within permissible limit of restriction.

44. It is submitted that the standard of reasonableness is to be judged with due reference to the

subject matter of the legislation in question and economic and social conditions in the

country. Reliance is placed on Pathumma v. State of Kerela54

wherein it was held that:

“In interpreting the constitutional provisions the Court should keep in mind the social

setting of the country so as to show a complete consciousness and deep awareness of

the growing requirements of the society, the increasing needs of the nation, the burning

problem of the day and the complex issues facing the people which the legislature in its

wisdom through beneficial legislation seeks to solve.”

48 Moot Proposition ¶ 11. 49 Ibid. 50 Barbier, E. B., Acreman M. C. &Knowler D., Economic Valuation of Wetlands : A guide for Policy makers

and Planners, inRAMSAR CONVENTION BUREAU, (1997). 51 Moot Proposition, ¶ 12. 52 The Convention on Wetlands of International Importance, Art.2.1, 1971. 53 The Convention on Wetlands of International Importance, Art.2.3, 1971. 54 Pathumma v. State of Kerela, AIR 1978 SC 771.


Page | 14


45. It is humbly submitted that the Respondent completely ignored the present status quo of the

country which is facing acute scarcity of water and the issues faced by the people.55

Thus the

exclusion doesn’t come under the permissible limit of restriction.

[B]THAT SUSTAINABLE DEVELOPMENT IS POSSIBLE

46. It is most respectfully submitted that the exclusion of the State of Vindhya is not valid as

sustainable development could take place. It is submitted that a balance between development

and conservation exists [i]. Further, there exists an excessive national interest, [ii] and the

State of Vindhya could be excluded from the list.

i. That there exists a balance between development and conservation

47. It is humbly submitted before the Hon’bleCourt that right to development and right to

environment are integral part of right to life guaranteed under Article 21 the balance between

environment protection and development activities could only be maintained by following the

principle of sustainable development.56

Sustainable development is a welcome feature but

while emphasising the need of ecological impact a delicate balance between it and the

necessity for development must be struck. Where it is not possible to ignore intergenerational

interest, it is also not possible to ignore the dire need which the society urgently requires.57

48. Reliance is placed on Narmada Bachao Andolanv. Union of India58

, wherein it was held that

environmental and ecological consideration must, of course, be given due consideration but

with proper channelization of developmental activities ecology and environment can be

enhanced. It is submitted that a three-year project carried out by Wetlands International in

partnership with the International Water Management Institute found that it is possible to

conserve wetlands while improving the livelihoods of people living among them.59

49. It is humbly submitted that the Respondent should have looked into including the State of

Vindhya in the project with sustainable measures rather than completely excluding the State

of Vindhya from the project. It is humbly submitted that the Courts seek to draw a balance

between preservation of the environment and sustainable development. The Courts have to

adjust and reconcile between the imperatives of preservation of the environment and

55 Moot Proposition ¶ 1. 56 N.D. Jayal v. UOI (2004) 9 SCC 362. 57 Susetha v. State of T.N. (2003) 6 SCC 543. 58 Naramada Bacahao Andolan v. UOI (2000) 10 SCC 664. 59 Senaratna Sellamuttu, S. de Silva, S. Nguyen Khoa, & S. Samarakoon J. ,“Good practices and lessons

learned in integrating ecosystem conservation and poverty reduction objectives in wetlands”in

INTERNATIONAL WATER MANAGEMENT INSTITUTEMANUAL(2008).

http://en.wikipedia.org/wiki/International_Water_Management_Institute


Page | 15


development of the economy.60

Thus, the fundamental rights of the people cannot be

completely ignored in the name of environment protection.

ii. That the State could be excluded due to excessive national interest

50. It is humbly submitted that Petitioner No. 2 has approached the Hon’bleSupreme Court to

issue a writ of mandamus being conscious of the fundamental rights of the people. It is

further submitted that for effective orders to be passed, so as to ensure that there can be

protection of environment along with development, it becomes necessary for the Court

dealing with such issues to know about the local conditions.61

It is most humbly submitted to

the Hon’bleCourt of Aressia that the action of taken by the Respondent to exclude the State

of Vindhya from the Linking of River Project, 2010 was made without giving any

consideration the conditions of the farmers in the State of Vindhya and State of Normanda,

which was facing acute scarcity of water.62

The policy of the state should be directed toward

minimizing the inequalities in status amongst group of people residing in different areas.

51. It is submitted that contracting parties can delete the wetlands from the Ramsar List whenever

an urgent national interest requires.63

It is further submitted that an economy of a country

that has suffered from past two decades due to agricultural failure that has led to commission

of suicides of farmers64

, it is rational that the State be excluded from the list and included in

the project.

52. It is humbly submitted that the decision of the Respondent to exclude the State of Vindhya

from the project is arbitrary and violates the fundamental rights of the people. It is further

submitted that the State could be included in the list through sustainable development

procedures.

In lights of the arguments advanced and authorities cited, it is most respectfully submitted

that the exclusion of State of Vindhya from the Interlinking of Rivers Project violates the

fundamental right of people Vindhya and Normanda.

60 BanwasiSeva Ashram v. State of Uttar Pradesh, AIR 1987 SC 359, Nature Lovers’ Movement v. State of

Kerela, AIR 2000 Ker 131, Sushanta Tagore v. UOI, (2005) 3 SCC 16. 61 Indian Council for Enviro- Legal Action v. UOI, (1996) 5 SCC 261. 62 Moot Proposition, ¶ 12. 63 The Convention on Wetlands of International Importance, Art. 2.5,1971. 64 Moot Proposition, ¶ 1.


Page | 16


IV. THAT THE LINKING OF RIVERS ACT, 2010 VIOLATES THE ENVIRONMENTAL RIGHTS OF

CITIZEN OF ARESSIA AND PROVISIONS OF THE FOREST CONSERVATION ACT, 1980

53. It is most respectfully submitted that the legality of ‘Linking of Rivers Act,2010’[hereinafter

referred as the “Impugned Act”], is being challenged.. It is humbly submitted that the

environmental rights of the citizens is being violated [A]. Further, it violates the provisions of

the Forest Conservation Act, 1980 [B].

[A] THAT THE ENVIRONMENTAL RIGHTS ARE BEING VIOLATED

54. It is humbly submitted that the environmental rights are judicially conferred on the citizens of

Aressiaby theConstitution of Aressia. It is submitted that the Act aims at implementing the

Project of Linking of Rivers which poses potential threat of violation of the environmental

rights of the citizens. It is submitted that the right to healthy environment [i], right to healthy

drinking water [ii] and right to livelihood [iii] is being violated.

i. That the right to healthy environment is being violated

55. It is humbly submitted that right to healthy environment and sustainable development are

fundamental human rights implicit in right to life.65

It is submitted that people have a right to

live in a healthy environment with minimal ecological disturbance and the same shall be

safeguarded.66

Relying on Virender Gaur67

case whereinthe Principle 1 of Stockholm

Declaration was reaffirmed it is humbly submitted that in the instant case, the impugned act

aims at implementing the Linking of Rivers project as a result of which the fundamental right

to live in healthy environment of the people of Aressia is likely to be breached with

submergence of land, forests and diversion of river channels. The project undertakes

construction of dams and canals for inter linking of rivers which poses severe threat to

environment degradation and would thus deprive the citizens of Aressia with their right to

healthy environment. Reliance is placed on Charan Lal Singh v. Union of India68

wherein the

Supreme Court held that right to environment is guaranteed under Article 21 and it is the duty

of the State to protect the guaranteed constitutional rights.

65 A.P. Pollution Control Board II v. Prof. M.C. Nayudu, AIR 1999 SC 812; Bandhua Mukti Morcha v. UOI,

1984 (3) SCC 161. 66 Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1985 SC 652; Chhetriya Pradushan Mukti

Sangharsh Samiti v. State of U.P. AIR (1990) SC 2060. 67 VirenderGaur v. State of Haryana (1995) 2 SCC 577. 68 Charan Lal Singh v. UOI, (1990) 1 SCC 598.


Page | 17


ii. That the right to fresh drinking water is being violated

56. It is most respectfully submitted that right to water is a judicially recognised fundamental

right.69

In the matter concerning accessibility of water, Supreme Court in the Vellore case70

has held the importance of right to water as a common law right. Reliance is placed on

cases71

wherein the Court was of the view that it is importantto notice that the material

resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature’s

bounty. They need to be protected for a proper and healthy environment which enables

people to enjoy a quality of life.

57. It is humbly submitted that right to fresh water is a pressing human need72

that gains

precedence over [all] other rights and in co-extension paves way for Right to Food. These are

the basic human rights in any civilised society.73

In Narmada Bachao Andolan v. Union of

India74

, the Supreme Court held that water is the basic need for survival of human beings and

can be served only by providing source of water where there is none.

58. It is submitted that in the instant case, firstly, there remain 324 rivers in Aressia out of which

only 50% are fit enough for potable and drinking purposes and the rest 50% have become

polluted.75

It is contended thatafter implementation of this project, the rivers of fresh water

would be interlinked with the polluted rivers thereby polluting the entire river ecosystem. It is

further contended that channelization of river flow would ultimately lead to extensive

withdrawal of water from basin which puts the population at downstream at disadvantageous

position. Reliance is placed on State of M.P. v. Kedia Leather & Liquor Ltd.76

, wherein it was

held that right to live with human dignity becomes illusory in absence of humane and healthy

environment. Therefore, implementation of project would thus violate right to water of the

citizens.

69 Wasim Ahmed Khan v. Govt. of AP, 2002 (5) ALT 526 (D.B.); Mukesh Sharma v. Allahabad Nagar Nigam

& Ors, 2000 ALL. L.J. 3077; Diwan Singh and another, v.The S.D.M. and other, 2000 ALL.L.J. 273; S.K.

Garg v. State of UP, 1999 ALL.L.J. 332; Gautam Uzir & Anr.v. Gauhati Municipal Corpn, 1999 (3) GLT 110. 70 Vellore Citizens' Welfare Forum v. UOI, (1996) 5 SCC 647. 71 M.C. Mehta v. UOI, AIR 1988 SC 1037:(1997) 2 SCC 411; M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388;

S. Jagannath v. UOI, (1997) 2 SCC 87; HinchLal Tiwari v. Kamala Devi (2001) 6 SCC 496. 72 A.P. Pollution Control Board II v. Prof. M.V. Nayudu and Others, AIR 1999 SC 812. 73 Chameli Singh and Ors. v. State of U.P. and Anr AIR 1996 SC 1051. 74 Narmada BachaoAndolan v. UOI, (2000) 10 SCC 664. 75 Moot Proposition, ¶ 3. 76 M.P. v. Kedia Leather & Liquor Ltd., AIR 2003 SC 3236.


Page | 18


ii. That the right to livelihood is being violated

59. It is humbly submitted that right to livelihood encompasses the right to earn livelihood.77

The

environment impact under the Act threatens the socially and economically backward people78

of their livelihood by dislocating them from their place of living or otherwise by depriving

them of their livelihood. It is submitted that the right to livelihood was recognised by the

Supreme Court in Olga Tellis Case,79

wherein the Hon’ble Court was of the view that

depriving a person of his means of livelihood tantamount to deprivation of life, thus

unconstitutional. Further, the procedure of law by which displacement of people is done is

‘just, fair and reasonable’ only when the displaced are provided with suitable alternatives of

life with suitable amenities.80

The Supreme Court has held in cases that in such river projects

rehabilitation is not only by providing food, clothes and shelter but is also of restoring the

livelihood81

for enjoyment of life and that such rehabilitation should take place six82

months

before the project starts.

60. It is humbly submitted thatAressia is primarily an agrarian and fishery economy. Linking of

rivers would result in submergence of land, cultivable or non-cultivable, thereby depriving

the framers of their right to livelihood. Also, submergence of forest land would deprive the

indigenous people of their right to livelihood. It also includes those people who are culturally

and economically dependent on the natural resources whose right would be violated. Thus, in

light of the arguments herein above stated, the Respondent most humbly submits that the Act

violates the environmental rights of the citizens of Aressia.

[B] THAT THE ACT VIOLATES THE PROVISIONS OF FOREST CONSERVATION ACT, 1980

61. It is humbly submitted before the Hon’bleCourt that the provisions of Forest Conservation

Act, 1980 are being violated. It is submitted that there is a duty to conserve forests [i] and that

the public trust is being violated [ii].

77 State of H.P. v. Umed Ram, AIR 1986 SC 847. 78 BanwasiSeva Ashram v. State of U.P. AIR 1987 SC 374. 79 Olga Telis v. Bombay Municipal Corporation, AIR, 1986 S.C. 180. Sodan Singh v. N.D.M.C.,(1989) 4 SCC

155; Ahmadabad Municipal Corporation v. Nawab Khan Gulab Khan(1997) 11 SCC 121; Ramesh Chander v.

Imtiaz Khan, (1998) 4 SCC 760. 80 K. Chandru v. State of Tamil Nadu, AIR 1986 SC 204. 81 N.D. Jayal v. UOI, (2004) 9 SCC 362. 82 B.D. Sharma v. UOI, 1992, SCC 93.Narmada BachaoAndolan v. UOI, (2000) 10 SCC 664.


Page | 19


i. That there is a duty to conserve forests

62. Reliance is placed on Lafarge Umiam Mining83

wherein the Supreme Court enunciated that

for matters concerning forest land National Forest Policy 1988 is to be read with Forest

Conservation Act, 1980 and Environment Protection Act, 1986. It is humbly submitted that

National Forest Policy dictates that any activity concerning public necessity should not

happen without re-vegetation and reparation of the land.It is further submitted that the

preamble of the policy states that diversion of land for purposes other than Afforestation

without ensuring compensatory a forestation and environmental safeguards is when

development is done at the cost of irreversible damage to environment. Section 2 of the

Forest Conservation Act mandates clearance from central government to carry on any other

purpose on forest land other than aforestation.

63. Reliance is placed on M.C. Mehta v. Union of India84

wherein it was held that diversion of

forest land for any non-forest purpose should be subject to most careful examinations by

specialists from standpoint of social and environmental costs and benefits. Further reliance is

placed on T.N. Godavarman Thirumalpad v. Union of India85

, that conservation includes

preservation, maintenance, sustainable utilisation, restoration and enhancement of natural

environment. The principal aim of Forest Policy 1998 is to ensure environmental stability and

maintenance of the ecological balance including atmospheric equilibrium which vital for

sustenance of all life forms. It is humbly submitted that it is the duty of the Respondent to

conserve forests without degrading the environment.

ii. That the Public Trust is being violated

64. It is humbly submitted that the Doctrine of Public Trust dictates that the State is the trustee of

the material resources and enjoins upon the government to protect the resources to ensure

availability of the same for general public. The same principle has been envisaged in the

Constitution which mandates the government to utilise the material resources in order to

subserve the common good. It is contended that this view was upheld by the Supreme Court

later in Majra Singh & Ors v. Indian Oil Corporation &Ors86

and M.I. Builders v. Radhey

83 Lafarge Umiam Mining (P) Ltd. v. Union of India, (2011) 7 SCC 338. 84 M.C. Mehta v. UOI, (2004) 12 SCC 118. 85 T.N. GodavarmanThirumalpad v. UOI, (2010) 13 SCC 316. 86 Majra Singh & Ors v. Indian Oil Corporation &Ors, AIR 1999 J K 81.


Page | 20


Shyam Sahu87

which along with other cases88

form the backbone of the development of this

doctrine.

65. The members of the EIA committee had found in the initial stage some environmental hazards

that the project imposes but cleared the same pertaining to suggested safeguards. Later in

March 2014, media interview of members of the committee that were under a political

pressure to clear the project. This casts a doubt on the integrity of the committee and validity

of the clearance issued. Relying on M.C. Mehta v. Kamal Nath89

, wherein the Supreme Court

took notice of a news item of Indian Express and was of the view that if the report were true it

would be a gross violation of the public trust; it is contended that in the instant case, ALR

issued the project phases on approval of the Central Government. In accordance with Section

2 of Forest Conservation Act read with National Forest Policy, the project mandatorily needed

clearance from the government. The projects involving potential threat to environment have to

pass through Environment Impact Assessment. Here the EIA committee appointed by the then

government gave clearance to the project at initial stages; however. However, in a live

television interview the members of the committee claimed that the same was not bona fide in

nature. It is contended that this interview raises concerns over the EIA report whose sanctity

is in question and raises a deep environmental concern especially with regards to loss of huge

area of forests.

66. It is mostrespectfully submitted that the clearance issued by the EIA committee to the project

should be set aside as it is in direct conflict with the doctrine of public trust. Reliance is

placed on Fomento Resorts & Hotels Ltd. & Anrv. Minguel Martins &Ors90

wherein it was

held that Courts can invoke the public trust doctrine & take affirmative action for protecting the rights

of people to have access to light, air & water and also for protecting rivers, sea, tanks, trees, forests

&associated natural eco-systems.

In lights of the arguments advanced and authorities cited, it is most respectfully submitted

that the impugned act violates the environmental rights of the citizens of Aressia as well as

the provisions of Forest Conservation Act, 1980.

87 M.I. Builders v. RadheyShyamSahu, AIR 1999 SC 2468. 88 Centre for PIL &Ors v. UOI &Ors, AIR 2013 SC 3725; Common Cause, A Registered Society v. UOI &Ors,

AIR 1999 SC 2979; Greater Noida Industrial Development Authority v. Devendra Kumar &Ors, (2011) 12 SCC 375; The State of West Bengal v. Kesoram Industries Ltd. &Ors, AIR 2005 SC 1646.

89 M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388. 90 Fomento Resorts & Hotels Ltd. &Anr v. Minguel Martins &Ors, (2009) 3 SCC 571.


Page | XIV


PRAYER

In the light of the issues raised, arguments advanced and authorities cited the Counsel for the

Petitioner/Appellant humbly pray that the Hon’bleCourt be pleased to adjudge:

1) That for Appellant No. 1, the petition filed by Forum for Environmental Rights is

maintainable before the High Court of Neruda.

2) That for Petitioner No. 1, Section 3 of the Linking of Rivers Act, 2010 is ultra vires to

the Constitution of Aressia.

3) That for Petitioner No. 2, the exclusion and non- implementation of Linking of River

Project for the State of Vindhya is in violation of the Fundamental Rights of the people

of State of Vindhya and State of Normanda.

4) That for Appellant No. 2, the Linking of Rivers Act 2010 violates the environmental

rights of the citizen of Aressia and provisions of the Forest Conservation Act, 1980.

And pass any other order that this Hon’bleCourt may deem fit in the interest of equity, justice

and good conscience.

And for this act of kindness the Counsel for the Petitioner/Appellant shall duty bound forever

pray.

Sd/-

(Counsel for Petitioners)

Documents

15 A