15 R

SEVENTH JUSTICE HIDAYATULLAH MEMORIAL NATIONAL MOOT

COURT COMPETITION, 2014

17TH

- 19TH

OCTOBER, 2014

BEFORE THE HON’BLE SUPREME COURT OF ARESSIA

TWO ARESSIAN STATES………………………………………PETITIONER NO. 1

SAVE THE FARMERS’ FORUM………………………………...PETITIONER NO. 2

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

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

V.

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

MEMORIAL ON BEHALF OF RESPONDENT

TEAM CODE 15

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

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[Memorandum for Respondent]

TABLE OF CONTENTS

LIST OF ABBREVIATIONS............................................................................................... V

INDEX OF AUTHORITIES ............................................................................................... VI

STATEMENT OF JURISDICTION ..................................................................................... X

STATEMENT OF FACTS .................................................................................................. XI

ISSUES RAISED ............................................................................................................. XIII

SUMMARY OF ARGUMENTS ...................................................................................... XIV

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

I. THAT THE PETITION FILED BY FORUM FOR ENVIRONMENTAL RIGHT

(FER) BEFORE THE HIGH COURT OF NERUDA IS NOT MAINTAINABLE ........ 1

[A] THE RESPONDENTS HAVE TAKEN ALL RELEVANT CONSIDERATIONS IN DECIDING THE

IMPLEMENTATION OF THE PROJECT ................................................................................ 1

i. Two committees were formed at the direction the Supreme Court ....................... 1

ii. That the two committees made a proper analysis ............................................... 2

iii. That the Respondent applied its mind in the implementation of the project. ...... 2

[B] THE COURT CANNOT INTERFERE WITH THE DECISION OF THE GOVERNMENT .............. 3

i. The Court does not have the expertise to deal with the issue in hand .................. 3

ii. That the Court could not interfere in matters where the executive has adequately

applied its mind ..................................................................................................... 4

II. THAT SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 IS NOT ULTRA

VIRES THE CONSTITUTION OF ARESSIA.................................................................... 5

[A] THAT THE LINKING OF RIVERS IS COVERED UNDER ENTRY 56 OF UNION LIST ............ 5

i. That development also means creation of inter-state rivers................................. 6

ii. That the impugned Act was enacted expedient in the public interest .................. 6

[B] THAT THE LINKING OF RIVERS IS OUTSIDE THE SCOPE OF ENTRY 17 OF STATE LIST .... 7

i. That Entry 17 of State List is subject to Entry 56 of Union List ........................... 7


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ii. That the pith and substance is within permitted jurisdiction .............................. 8

iii. Doctrine of incidental or ancillary power applies............................................. 9

[C] ARGUENDO, THAT WITHOUT PREJUDICE TO THE ABOVE EVEN IF THE SUBJECT MATTER

DOES NOT FALL UNDER ENTRY 56, THE LINKING OF RIVERS IS STILL WITHIN THE AMBIT OF

LEGISLATIVE POWERS OF UNION .................................................................................... 9

i. That ‘Interlinking or Inter-basin transfer of rivers between two or more states’ is

not provided for under any list .............................................................................. 9

ii. That Art. 248 read with entry 97 is to be exercised .......................................... 10

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

RIVER PROJECT FOR THE STATE OF VINDHYA IS NOT VIOLATIVE OF

FUNDAMENTAL RIGHTS OF PEOPLE OF STATE OF VINDHYA AND STATE

OF NORMANDA ................................................................................................................ 11

[A] THAT THE STATE IS DUTY BOUND TO PROTECT THE WETLAND ................................ 11

i. That wetlands form an important part of the ecosystem .................................... 11

ii. That Aressia is a party to the Ramsar Convention of Wetlands of International

Importance .......................................................................................................... 12

iii. That any attempt to disturb a distinct ecosystem violates the doctrine of

sustainable development ...................................................................................... 12

[B] THAT THERE IS NO INFRINGEMENT OF FUNDAMENTAL RIGHTS ................................. 13

i. That the classification was reasonable ............................................................. 13

ii. That the exclusion doesn’t violate the right to freedom under Art. 19. ............. 14

iii. That the doctrine of Precautionary Principle is taken into consideration ........ 15

IV. THAT THE LINKING OF RIVERS ACT, 2010 DOES NOT VIOLATE THE

ENVIRONMENTAL RIGHTS OF CITIZEN OF ARESSIA AND PROVISIONS OF

THE FOREST CONSERVATION ACT, 1980 ............................................................... 15

[A] THAT THERE IS A PRESUMPTION OF CONSTITUTIONALITY ....................................... 16

[B] THAT THE ENVIRONMENTAL RIGHTS OF THE CITIZENS OF ARESSIA ARE NOT VIOLATED

.................................................................................................................................. 16

i. That there Exists a Right to a Healthy Environment.......................................... 17


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ii. That there exists a right to water ..................................................................... 17

iii. That the principle of sustainable development has been complied with to

achieve a balance between the two ...................................................................... 18

[C] THAT THE PROVISIONS OF FOREST CONSERVATION ACT, 1980 HAVE NOT BEEN

VIOLATED. .................................................................................................................. 19

i. That the due process has been complied with ................................................... 19

ii. That the precautionary principle has been complied with ................................ 19

PRAYER ...........................................................................................................................XV


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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 Public Interest Litigation

Raj. Rajasthan

SC Supreme Court

SCALE Supreme Court Almanc

SCC Supreme Court Cases

SCR Supreme Court Reporter

SLP Special Leave Petition

Supp. Supplement

UOI Union of India

v. Versus

Vol. Volume


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INDEX OF AUTHORITIES

SUPREME COURT CASES

1. A.P. Pollution Control Board II v. Prof. M.C. Nayudu (2001) 2 SCC 62....................... 17

2. A.P. Pollution Control Board v. M. V. Naidu, AIR 1999 SC 812 ............................ 15, 19

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

4. Amarnath Shrine v. UOI (2013) 3 SCC 247.................................................................. 13

5. Bandhua Mukti Morcha v. UOI 1984 (3) SCC 161 ....................................................... 17

6. Bombay Dyieng & Mfg. Co. Ltd. v. Bombay EA (2006) 3 SCC 434 ........................... 12

7. Cauvery Water Dispute Tribunal, Re., 1993 Supp (1) SCC 96(2)............................. 7,6, 8

8. Chameli Singh and Ors. v. State of U.P. and Anr AIR 1996 SC 1051 ........................... 18

9. Charan Lal Sahu v. UOI, (1990) 1 SCC 613 ................................................................. 16

10. Chhetriya Pradushan Mukti Sangharsh Samiti v. State of U.P. A.I.R. (1990) SC 2060 . 17

11. Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 .................................... 14

12. Dahanu Taluka EPG v. Bombay Suburban Electric Supply Ltd, (1991) 1 SCALE 472 1, 3

13. Dwarkadas Marfatia & Sons. v. Board of Trustees, Bombay Port, AIR 1989 SC 1642 .. 14

14. Essar Oil Ltd. V. Halar Utkarsh Samiti, (2004) 2 SCC 392 ........................................... 18

15. Express Newspaper Ltd. v. UOI, AIR 1958 SCR 12 ....................................................... 7

16. Forward Construction Co. v. Prabhat Mandal (Regd.), (1986) 1 SCC 100 .................... 18

17. Goa Foundation v. Disha Holdings, (2001) 2 SCC 97 ................................................... 12

18. Hinch Lal Tiwari v. Kamala Devi (2001) 6 SCC 496 .................................................... 18

19. Indian Council for Enviro- Legal Action v. UOI, AIR 1987 SC 965. ....................... 13,18

20. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC ...................................................... 4

21. Intellectuals Forum v. State of A.P., AIR 2006 SC 1350. .............................................. 15

22. Kailash Chandra Sharma v. State of Rajasthan, (2002) 6 SCC 562 ............................... 14

23. Karnataka State v. UOI, AIR 1978 SC 68 ..................................................................... 10

24. Kerala State Electricity Borad v. Indian Aluminium Co. (1976) 1 SCC 466 .................... 8

25. Khandelwal Works v. UOI, AIR 1985 SC 1211 ............................................................ 10

26. Kishan Singh v. State of Rajasthan, AIR 1955 SC 795 ................................................. 14

27. LaxmiKhandsari v. State of Uttar Pradesh, AIR 1981 SC 873....................................... 13

28. Liv Oak Resort v. Panchgani Hill Station Municipal Council, (2001) 8 SCC 329. ........ 12

29. M. Rathinaswami v. State of Tamil Nadu (2009) 5 SCC 625. ......................................... 7

30. M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 ............................................................. 18

31. M.C. Mehta v. Kamal Nath, AIR 2002 SC 1515 ........................................................... 15

32. M.C. Mehta v. UOI, (1988) 1 SCC 471 ................................................................... 16,18

33. M.C. Mehta v. UOI, AIR 1987 SC 965 ......................................................................... 15

34. M. S. Rao v. Vijaywada, Guntur, Tenali, Mangalagiri UDA (2011) 12 SCC 154 ............ 6

35. Municipal Committee, Patiala v. Model Town Residents Assn. (2007) 8 SCC 669. ...... 16

36. Narendra Kumar v. UOI, AIR 1960 SC 430 ................................................................. 14

37. Networking of Rivers Re, (2012) 4 SCC 78. ................................................................... 7

38. Olga Telis v. Bombay Municipal Corporation, AIR, 1986 S.C. 180 .............................. 18


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39. Papnasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200 ............................. 15

40. Public Services Tribunal Bar Assn. v. State of U.P. (2003) 4 SCC 104 ......................... 16

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

42. Rural Litigation and Entitlement Kendra v. State of U.P., A.I.R. 1985 SC 652 ............. 17

43. Rural Litigation and Entitlement Kendra v. State of UP, AIR 1988 SC 2187 .................. 1

44. Rural Litigation Entitlement Kendra v. UOI, 1989 Supp (1) SCC 504 .......................... 19

45. S. Jagannath v. UOI (1997) 2 SCC 87 .......................................................................... 18

46. Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109. ........................... 1, 16

47. Society for Protection of Silent Valley v. UOI. UP No. 2949 & 3025 of 1979 (Ker). ...... 4

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

49. Special Reference (1) of 2001, (2004) 4 SCC 489........................................................... 8

50. State of Bihar v. Charusila Dasi, 1959 Supp (2) SCR 601 ............................................... 5

51. State of Bihar v. Kameshwar Singh, AIR 1952 SC 252................................................... 6

52. State of H.P. v. Umed Ram, AIR 1986 S.C. 847 ........................................................... 18

53. State of Madras v. Gannon Dunkerley, 1959 SCR 379. ................................................... 6

54. Susetha v. State of T.N., (2003) 6 SCC 543 ............................................................. 12,15

55. Sushila Saw Mill v. State of Orissa and Ors., (1955) 5 SCC 615 ................................... 14

56. T.N. Kalyan Mandal Association v. UOI (2004) 5 SCC 632 ........................................... 8

57. Tamil Nadu v. Hind Stone, A.I.R. 1981 SC 711. .......................................................... 18

58. Tarun Bharat Sangh Alwar v. UOI AIR 1992 SC 514 ..................................................... 1

59. Tarun Bharat Sangh v. UOI, 1993 Supp (3) SCC 115 ................................................... 19

60. Tehri Bandh Virodhi Sangharsh Samiti v. State of UP 1992 Supp (1) SCC 44 ................ 3

61. The Goa Foundation v. The Konkan Railway Corporation, 1994 1 Mah LJ 21 ............... 3

62. Unni Krishnan v. State of A.P. (1993) 1 SCC 645 ........................................................ 17

63. UOI v. Dhillon, AIR 1972 SC 1021 .............................................................................. 10

64. UPPCL v. Ayodhya Prasad Misra, (2008) 10 SCC 139 ................................................... 7

65. Vellore Citizen’s Welfare Forum v. UOI A.I.R. 1996 SC 2715 ................................ 17,20

66. Virender Gaur v. State of Haryana (1995) 2 SCC 577 ................................................... 17

HIGH COURT CASES

1. Anupama Minerals Kasturupally v. UOI, (1984) 2 AP LJ 66 (SN)................................ 19

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

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

4. Laxminarayan Saw Mill v. State of Orissa, AIR 1995 Ori. 114 ..................................... 15

5. Mahabir Prasad Jalan v. State of Bihar 1991 (1) BLJR 915. ............................................ 8

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

7. People United for Better Living in Calcutta v. State of W B, AIR 1993 Cal. 215 .......... 12

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

9. Society for Protection of Silent Valley v. UOI, UP No. 2949 & 3025 of 1979 (Ker) ..... 19

10. Vijay Singh Punia v. RSBPCWP, AIR 2003 Raj. 286 ................................................... 15


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

FEDERAL COURT CASE

1. Subramaniyam Chettiar, A.L.S.P.P.L. v. Muttuswami Goundan, AIR 1941 F.C. 47........ 5

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. LEELA KRISHNAN., 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).

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.


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2. STOCKHOLM DECLARATION, 1972.

3. CONVENTION ON BIOLOGICAL DIVERSITY, 1992.

LEXICONS

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

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

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


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STATEMENT OF JURISDICTION

The respondent humbly submits to the jurisdiction invoked by the Petitioner No. 1 under Art.

131 of the Constitution of India.

The respondent humbly submits to the jurisdiction invoked by Petitioner No.2 under Art. 32

of the Constitution of India.

The respondent humbly submits to the jurisdiction invoked by Appellant No.1 under Art. 133

of the Constitution of India.

The respondent humbly submits to the jurisdiction invoked by Appellant No.2 under Section

22 of the National Green Tribunal Act, 2010.


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STATEMENT OF FACTS

-BACKGROUND-

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

fisheries. Due to shortage of water over the last two decades there has been a decline in the

economy due to failure of agricultural crops. 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’ble Supreme 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 (hereinafter referred as ALR) through a notification in

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

the project was not implemented immediately.

-IMPLEMENTATION OF THE PROJECT-

In April, 2011 the new government at the centre to solve the national scarcity of water

decided to implement the Project in three phases. In February 2012, the ALR published a list

of rivers included in the first phase of the Project.

-ISSUE OF ULTRA VIRES-


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In March 2012, the Linking of Rivers Act, 2010 enacted by the Respondent to regulate and

develop the rivers which were to be ‘interstate in nature’ 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-

Owing to its international as well as constitutional obligations to protect the Wetland of State

of Vindhya provided in the Ramsar List of Wetlands of International Importance and the

report submitted by EIA Committee appointed by State of Vindhya the Respondent 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’ble Supreme 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-

Considering the prospective benefits, 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. Accepting the preliminary

objection of the Respondent the High Court dismissed the Petition on January 3, 2014.

Aggrieved by this order Appellant No. 1 approached the Hon’ble Supreme Court of Aressia.

-THE ISSUE OF LEGALITY OF THE ACT-

On 2 April, 2013 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’ble Supreme Court for the sake of convenience decided to hear all the petitions

together.Hence this petition.


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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?


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SUMMARY OF ARGUMENTS

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

HIGH COURT OF NERUDA IS NOT MAINTAINABLE

The petition filed before the High Court of Neruda is not maintainable. Firstly, all relevant

considerations were taken before the implementation of the project. Secondly, when there is a

reasonable application of mind in implementing big projects which would affect the

environment, the judiciary cannot interfere in such matters.

II. THAT SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 IS NOT ULTRA VIRES THE

CONSTITUTION OF ARESSIA

Section 3 of the Linking of Rivers Act, 2010 is not ultra vires the Constitution. Firstly, the

subject matter falls under Entry 56 of the Union List. Secondly, even if the subject matter

does not fall under Entry 56, it will fall under the residuary powers of the Union as the

‘interlinking and inter-basin transfer of rivers between two states’ is outside the scope of

powers of the State.

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

THE STATE OF VINDHYA WILL NOT VIOLATE THE FUNDAMENTAL RIGHTS OF PEOPLE OF

STATE OF VINDHYA AND STATE OF NORMANDA

The exclusion of the State of Vindhya from the Linking of River Project from the project was

valid. Firstly, the Union was duty bound to protect the wetland under its international as well

as constitutional obligation. Secondly, the exclusion protects the fundamental rights rather

than infringing the rights.

IV. THAT THE LINKING OF RIVERS ACT, 2010 DOES NOT VIOLATE THE ENVIRONMENTAL

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

1980

The ‘Interlinking of Rivers Act, 2010 is valid. Firstly, there is a presumption of

constitutionality of the act as the State was aware of the needs of its people. Secondly, the

principle of sustainable development has been followed. Thirdly, due process with the

precautionary principle has been followed in implementing the project and there is no

violation of the Forest Conservation Act, 1980.


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BODY OF ARGUMENTS

I. THAT THE PETITION FILED BY FORUM FOR ENVIRONMENTAL RIGHT

(FER) BEFORE THE HIGH COURT OF NERUDA IS NOT MAINTAINABLE

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

Hon’ble High Court of Neruda is not maintainable. When the court is called upon to give

effect to the Directive Principle and the Fundamental Duty, the court is not to shrug off its

shoulders and say that priorities are a matter of policy-making authority. The least that the

court may do is to examine whether appropriate considerations are borne in mind and

irrelevancies are excluded.

2. It is further submitted that in appropriate cases, the court may even go further but how much

further must depend on the circumstances of the case.1 In the present case, the Central

Government of Aressia [Hereinafter referred as “Respondent”] have taken all relevant

considerations in deciding the implementation of the project [A]. As a result, the Court

cannot interfere with the decision of government [B].

[A] THE RESPONDENTS HAVE TAKEN ALL RELEVANT CONSIDERATIONS IN DECIDING THE

IMPLEMENTATION OF THE PROJECT

3. It is humbly submitted before the Hon’ble Court that all the relevant considerations relating

to the project have been taken by the Respondent. In the case of Dahanu Taluka Environment

Protection Group v. Bombay Suburban Electric Supply Ltd,2 it was held that the Court’s role

is restricted to examining whether the executive has taken all relevant aspects and has neither

ignored or overlooked any material considerations nor has been influenced by extraneous

considerations in arriving at its final decision. The Respondent, in the case at hand formed

two committees as directed by the Supreme Court [i]. Further, the two committees made

proper analysis [ii]. Also, the Respondent applied its mind in implementing the project [iii].

i. Two committees were formed at the direction the Supreme Court

4. Reliance is placed on the case of Rural Litigation and Entitlement Kendra v. State of UP

3,Tarun Bharat Sangh Alwar v. UOI

4 and other similar cases. In cases involving large

1 Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109. 2 DahanuTaluka E P G v. Bombay Suburban Electric Supply Ltd. (1991) 1 SCALE 472. 3 Rural Litigation and Entitlement Kendra v. State of UP, AIR 1988 SC 2187. 4 Tarun Bharat Sangh Alwar v. UOI, AIR 1992 SC 514.


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projects, a judicial discipline has been observed wherein it has been the norm of the Courts to

constitute committees to look into the environmental aspects of cases.

5. Similarly, it is humbly submitted that in the present case, according to the directions of the

Supreme Court, the Respondent appointed two committees.5 One committee was a ‘High

Level Expert Committee’ to conduct a study on the viability of linking of rivers across the

country. The other committee was to conduct an Environmental Impact Assessment

[Hereinafter referred as “EIA”] pertaining to the linking of rivers.

ii. That the two committees made a proper analysis

6. It is humbly submitted before the Hon’ble Court that the two committees formed at the

direction of the Supreme Court had applied their mind in approving the project. It is

submitted that the ‘High Level Expert Committee’ submitted a report to the Respondent and

suggested that, certain rivers can be linked together to mitigate the problem of water shortage

in the country.6 The fact that the committee only approved certain rivers to be included in the

project shows that only those rivers which were viable to be included in the project were

given approval.

7. Further, it is submitted that according to the National Environment Policy, 2006,7 EIA

continues to be the principal methodology for appraising and reviewing new projects. The

purpose of EIA is to identify and evaluate the potential impacts (beneficial and adverse) of

developmental projects on the environmental system. This exercise should be undertaken

early enough in the planning stage of projects for selection of environmentally compatible

sites, process technologies and such other environmental safeguards.8 Thus, it is the humble

submission of the Respondent that the committees duly looked into the details of viability of

the project.

iii. That the Respondent applied its mind in the implementation of the project.

8. The present petition was filed against the inclusion of river ‘Bhargavi’ in the Linking of

River Project as its inclusion would lead to destruction of forest area and wildlife,

submergence of wetlands and violation of right to livelihood of thousands of fishermen in

5 Moot Proposition ¶ 4. 6 Moot Proposition ¶ 5. 7 GOVERNMENT OF INDIA, MINISTRY OF ENVIRONMENT AND FORESTS, NATIONAL ENVIRONMENT POLICY 2006.

8 SUMEET MALIK, ENVIRONMENT LAW 157 (2nd ed. 2012).


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Boressia. The grounds raised by the Appellant lead to the conclusion that the safety aspects of

the project have not been duly considered. It is humbly contended that the same is not true.

9. Reliance is placed on the case of Tehri Bandh Virodhi Sangharsh Samiti v. State of UP 9

wherein the Court dismissed the petition while clarifying that “it was not possible to hold that

the UOI has not applied its mind” to all possible ramifications of the project.Further, reliance

is placed on the case of Dahanu Taluka EPG v. Bombay Suburban Electric Supply Ltd.10

wherein it was held that the court’s role is restricted to examining whether the executive has

taken all relevant aspects and has neither ignored or overlooked any material considerations

nor has been influenced by extraneous considerations in arriving at its final decision. In the

present case, the EIA report which was prepared by the EIA Committee appointed by the

State of Vindhya identified the damage of wetland due to the proposed project and thereby,

the Respondent directed to exclude the state from the project.11

Thus, it cannot be said that

the Respondent has not applied its mind in the implementation of the project.

[B] THE COURT CANNOT INTERFERE WITH THE DECISION OF THE GOVERNMENT

10. It is most respectfully submitted before the Hon’ble Court that the Court cannot interfere with

the decision of the Respondent as the Court does not have the requisite expertise to deal with

the issue [i], and the Court does not interfere with the decisions where the executive has

adequately applied its mind [ii].

i. The Court does not have the expertise to deal with the issue in hand

11. It is humbly submitted that the Court does not have an expertise to deal with the

developmental projects which involve complex issues relating to science, environment,

engineering and other such technical issues. Reliance for the same is placed on the case of

Tehri Bandh Virodhi Sangharsh Samiti v. State of UP,12

wherein it was pointed out that the

case brought forth ‘an intricate question relating to science and engineering’ and the Court

does not possess the requisite expertise to deal with it. Similarly, in the Konkan Railway

Corporation13

case, it was held that when an expert and a renowned engineer has given the

green signal, the court is not to interfere.It is thus submitted that the court is not to interfere

when the issues have already been dealt by experts appointed at the direction of the Court.

9 Tehri Bandh Virodhi Sangharsh Samiti v. State of UP 1992 Supp (1) SCC 44. 10 Dahanu Taluka EPG v. Bombay Suburban Electric Supply Ltd. (1991) 1 SCALE 472. 11 Moot Proposition, ¶ 11. 12 Tehri Bandh Virodhi Sangharsh Samiti v. State of UP 1992 Supp (1) SCC 44. 13 The Goa Foundation v. The Konkan Railway Corporation 1994 1 MahLJ 21.


Page | 4


ii. That the Court could not interfere in matters where the executive has adequately applied

its mind

12. It is the humble submission of the Respondent that in the case of Hunnawara Taluka

Parisara v. State of Karnataka where release of forest land for construction of a dam and

environmental approval by the Central Government was challenged, the Hon’ble court

clarified that if all the relevant aspects are considered by the government, the court would not

interfere with its decisions.Further, in the case of Society for Protection of Silent Valley v.

UOI,14

the Court held that the Court cannot substitute its judgement for that of the

government on the use of a national asset and thatthe Courtis not to substitute its opinion and

notions on these matters for those of the government.”

13. It is humbly submitted that all the above decisions and their rationale clearly bring out the

fact that the courts have been conscious of the system of separated powers on which our

system of constitutional governance is based. The government’s decision on any

infrastructure development has been seen as a policy decision that could not be interfered

with by the courts. The Court had played its role and has exercised its power of judicial

review by appointing the expert committees to look into the environmental concerns raised.

While exercising the power of judicial review of administrative action, the Court shall not act

as an appellate authority and the Court cannot direct or advise the executive in matter of

policy. Thus, the court cannot interfere at every stage of the administrative decision when it

has already exercised its power in its constitutional capacity. Any further interference would

be an encroachment on the doctrine of separation of powers which forms the basic structure

of the Constitution.15

In light of the arguments advanced and authorities cited, it is humbly submitted that since all

the relevant aspects have been considered by the executive in its decision, the judiciary can

no more interfere in this matter.

14 Society for Protection of Silent Valley v. UOI, UP No. 2949 & 3025 of 1979 (Ker). 15 Indira Nehru Gandhi v. Raj Narain 1975 Supp SCC 1.


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II. THAT SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 IS NOT ULTRA

VIRES THE CONSTITUTION OF ARESSIA

14. It is most respectfully submitted before the Hon’ble Court that Section 3 of the Linking of

Rivers Act, 2010 [Hereinafter referred as the “impugned Act”] is not ultra vires the

Constitution as the linking of rivers is covered under Entry 56 the Union List [A] and the

linking of rivers is outside the scope of Entry 17 of State List.; [B]. Arguendo, without

prejudice to the above even if the subject matter does not fall under Entry 56, the linking of

rivers is still within the ambit of legislative powers of Union [C].

[A] THAT THE LINKING OF RIVERS IS COVERED UNDER ENTRY 56 OF UNION LIST

15. It is humbly submitted of the Respondent that Art. 246 of the Constitution of Aressia deals

with the distribution of legislative powers as between the Union and the State Legislatures,

with reference to the different lists in the 7th

Schedule. Art. 246 provides that the Union

Parliament has an exclusive power to legislate with respect to matters in List I and also has

power to legislate with respect to matters in List III. The State legislature, on the other hand,

has exclusive power to legislate with respect to matters in List II, minus falling in List I and

List III and has concurrent power with respect to matters included in List III.16

16. It is further submitted that in construing an enactment of a legislature with limited

competence, the Court must presume that the legislature in question knows its limits and that

it is only legislating for those who are actually within its jurisdiction.17

The enactment should

therefore receive, if possible, such interpretation as will make it operative and not

inoperative.18

In the present case, the Respondent has enacted the legislation under Entry 56

of List I that deals with the Regulation and development of inter-State rivers and river valleys

to the extent to which suchregulation and development under the control of the Union is

declared by Parliament by law to beexpedient in the public interest.

17. In the present case, the rivers exclusively belong to the States in which they are flowing but

after linking of rivers, they will become inter-state.19

Thus, the linking of rivers is covered

under Entry 56 of List I as development also takes under its ambit creation of inter-state

rivers; [i]. Further, the impugned act is expedient in the public interest; [ii].

16 Subramaniyam Chettiar, A.L.S.P.P.L. v. Muttuswami Goundan, AIR 1941 F.C. 47. 17 State of Bihar v. Charusila Dasi, 1959 Supp (2) SCR 601. 18 Ibid. 19 Moot Proposition, ¶ 9.


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i. That development also means creation of inter-state rivers

18. It is contended that Entry 56 of List I talks about ‘regulation and development of inter-state

rivers and river-valleys’. A matter mentioned in an entry is construed to cover all ancillary or

subsidiary matters which can be reasonably said to be comprehended in it.20

It is humbly

submitted that the rivers which are inter-state automatically fall under this list. Also, rivers

which currently are under exclusive state jurisdiction would after linking become inter-state

and would thereby also fall under the Union List.

19. It is submitted that each entry of the Seventh Schedule has to be interpreted in a broad

manner.21

The expression ‘regulation and development of inter-State rivers and river valleys’

would include the use, distribution and allocation of the waters of the inter-state rivers and

river valleys between different riparian States.22

The word development is also defined as the

“process of producing or creating something new or more advanced.”23

The term

“development” is comprehensive. It includes within its ambit all or any of the works

contemplated in a master plan or zonal development plan. It also covers carrying out of

building, engineering, mining or other operations in, on, over or under land.24

20. Therefore, it is humbly submitted that taking the widest interpretation, it can be logically

inferred that development also means creating or building something new. Thus, when the

entry states “regulation and development of inter-state rivers and river-valleys”, the term

‘development of inter-state rivers’ would also include the creation of new inter-state rivers

within its ambit and thus would fall under Entry 56 of List I giving the legislative competence

to the Union

ii. That the impugned Act was enacted expedient in the public interest

21. It is most humbly submitted that ‘Public Interest’ does not have a rigid meaning, is elastic

and takes its colour from the statute in which it occurs, the concept varying with time and

state of society and its needs.25

It also means the general welfare of the public that warrants

recognition and protection; something in which the public as a whole has a stake.26

20 State of Madras v. Gannon Dunkerley 1959 SCR 379. 21

D. D. BASU, SHORTER CONSTITUTION OF INDIA 1683 (14TH ED. 2012).

22 Cauvery Water Dispute Tribunal, Re 1993 Supp (1) SCC 96(2). 23 SALLY WEHMEIER, OXFORD ADVANCED LEARNER’S DICTIONARY 418 (7TH

ED. 2005). 24 Machavarapu Srinivasa Rao v. Vijaywada, Guntur, Tenali, Mangalagiri Urban Development Authority (2011)

12 SCC 154. 25 State of Bihar v. Kameshwar Singh AIR 1952 SC 252. 26 BRIAM A. GARNER,BLACK’S LAW DICTIONARY, 5509 (10TH

ED. 2014).


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22. In Cauvery Water Dispute Tribunal Re,27

it was held that the competence of State Legislature

in respect of inter-state river water is denuded by the Parliamentary legislation only to the

extent to which such latter legislation occupies the field and no more, and only if the

Parliamentary legislation in question declares that that the control and regulation and

development of the inter-state rivers and river valleys is expedient in the public interest and

not otherwise.

23. Further reliance is placed on the case of Networking of Rivers Re28

wherein it has been

observed that the State Governments are expected to view national problems with a greater

objectivity, rationality and spirit of service to the nation and ill-founded objections may result

in greater harm, not only to the neighbouring States but also to the nation at large.

24. In the present case, the Respondent enacted the Linking of Rivers Act, 2010. Section 3 of the

Act empowers the Central Government to take measures for the purpose of ensuring

‘availability and accessibility of water and linking of rivers all over the country’. The need of

the society at that instance is the availability and accessibility of water.29

The economy of

Union of Aressia is mainly based on agriculture and fishing but due to shortage of water there

have been lots of problems caused to the farmers and womenfolk and the only viable option

was that of linking of rivers. Thus, the Act was framed expedient to the ‘public interest’.

[B] THAT THE LINKING OF RIVERS IS OUTSIDE THE SCOPE OF ENTRY 17 OF STATE LIST

25. It is the humble submission of the Respondent that if on one construction a given statute will

become ultra vires the powers of the Legislature whereas on another construction, which may

be open, the statute remains effective and operative, the court will prefer the latter, on the

ground that the Legislature is presumed not to have intended an excess of its jurisdiction.30

It

is thus submitted that Entry 17 of State List is subject to Entry 56 of Union List [i]. Further,

the pith and substance of the matter is within the permitted jurisdiction [ii] and the doctrine of

incidental or ancillary powers applies [iii].

i. That Entry 17 of State List is subject to Entry 56 of Union List

26. It is humbly submitted that States have exclusive power over ‘water supplies’ under Entry 17

of List II but it is subject to the provisions of entry 56 of List I. Also, it must be taken into

27 Cauvery Water Dispute Tribunal Re, 1993 Supp (1) SCC 96(2). 28 Networking of Rivers Re, (2012) 4 SCC 78. 29 Moot Proposition, ¶ 1, 2. 30 Express Newspaper Ltd. v. UOI, AIR 1958 SCR 12; UPPCL v. Ayodhya Prasad Misra (2008) 10 SCC 139;

M. Rathinaswami v. State of Tamil Nadu (2009) 5 SCC 625.


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consideration that clauses (2) and (3) of Art. 246 are subject to clause (1). Thus, the use of the

words “subject to” in clauses (2) and (3) denote supremacy of Parliament. 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.31

Where an entry is in general terms in List II and part of that entry is

in specific terms in List I, the entry in List I take effect notwithstanding the entry in List II.32

27. It is submitted that under Entries 14, 17 and 18 of List II, the state legislature has competence

to legislate with respect to all water within its territory, but so far as inter-state rivers flowing

through the State are concerned, the powers of the State Legislature shall be subject Entry 56

of List I, which means that the State’s legislature power relating to regulation and

development of inter-State rivers shall be exercisable only so long and so far as the control

over their regulation and development has not been taken over by a law of Parliament passed

under Entry 56 of List I.33

Therefore, it is humbly submitted that State has no power to

legislate under this subject.

ii. That the pith and substance is within permitted jurisdiction

28. It is humbly submitted that if the pith and substance is covered by an entry within the

permitted jurisdiction of the Legislature, any incidental encroachment in the rival field is to

be disregarded.34

In the present case, the pith and substance of the legislation is the

‘interlinking of rivers’ which includes the regulation and development of such rivers, which

would not fall under exclusive jurisdiction of ‘one particular state’ but would be in the nature

of ‘inter-state rivers’ over which the Union has power to legislate under Entry 56 of List I.

Also, even if there seems to be incidental encroachment upon a matter in List II as the

exclusive power of the State Legislature in respect of List II under Art. 246(3) is subject to

clauses (1) and (2) of the same Art. which confer legislative power upon Parliament in

respect of matters in Lists I and III and as the power of Parliament in respect of List, under

clause (1) is notwithstanding anything in clauses (2) and (3), the Central Act will still be

effective.35

The observation made by Balakrishnan J, who delivered the unanimous opinion

of a constitutional bench in Special Reference (1) of 200136

supports this argument: wherein it

was held that when there is irreconcilable conflict between the two legislations the Central

31 Mahabir Prasad Jalan v. State of Bihar 1991 (1) BLJR 915. 32 Kerala State Electricity Borad v. Indian Aluminium Co (1976) 1 SCC 466. 33 Cauvery Water Dispute Tribunal, Re. 1993 Supp(1) SCC 96(2). 34 T.N. Kalyan Mandal Association v. UOI (2004) 5 SCC 632. 35 JUSTICE G. P. SINGH, PRINCIPLES OF STATUTORY INTERPRETATION, 595 (13TH

ED. 2012). 36 Special Reference (1) of 2001, (2004) 4 SCC 489.


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Legislation shall prevail.Thus, it is humbly submitted that even if it appears to be incidental

encroachment, the Central Legislation i.e. The Linking of Rivers Act, 2010 will prevail.

iii. Doctrine of incidental or ancillary power applies

29. It is submitted that the doctrine of incidental or ancillary power is founded upon the principle

that on the face of the constitution, the legislative power falls both in the Union as well as the

State lists, but on a careful scrutiny of the object of enactment, it becomes clear that it falls

merely incidentally in one list, but substantially in another list.37

In the present case, on

careful scrutiny, it becomes clear that the object is of interlinking of rivers for availing and

accessibility of water to the people. Linking of rivers would make the rivers ‘inter-state’ per

se and merely on the grounds that water is currently belonging to the state when substantially

the object is linking of the rivers does not give the State legislative competence in the

aforesaid matter.

[C] ARGUENDO, THAT WITHOUT PREJUDICE TO THE ABOVE EVEN IF THE SUBJECT MATTER

DOES NOT FALL UNDER ENTRY 56, THE LINKING OF RIVERS IS STILL WITHIN THE AMBIT OF

LEGISLATIVE POWERS OF UNION

30. It is humbly submitted that even if the subject matter of linking of rivers does not fall under

Entry 56 of the Union List, the entry still falls within the ambit of legislative powers of the

Union because the ‘Interlinking or Inter-basin transfer of rivers between two or more states’

is not provided for under any list [i] and Art. 248 read with entry 97 is to be exercised. [ii]

i. That ‘Interlinking or Inter-basin transfer of rivers between two or more states’ is not

provided for under any list

31. It is submitted that there are two water-related entries under the Seventh Schedule in the

Constitution of Aressia. It is submitted that in the present case the doctrine of harmonious

construction is not applicable.

32. Entry 17 of List II empowers the States in matter of water, that is to say, water supplies,

irrigation and canals, drainage and embankments, water storage and water power subject to

the provisions of Entry 56 of List I.It is submitted that a state has exclusive powers on the

entries withintheState list. Also, a state’s legislative competence is limited within its territorial

jurisdiction. State cannot make laws for subjects which fall outside its jurisdiction. Once the

project is implemented, the rivers would cease to be under the exclusive jurisdiction of State

37 D. D. BASU, SHORTER CONSTITUTION OF INDIA (14th ed. 2012).


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and would become inter-state.38

Thus, once the rivers become inter-state the State cannot

exercise its power to make laws in this regard. The subject matter would then fall under Entry

56 of List I.

33. Entry 56 of List I states empowers the Union in the matter of 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

national interest. Assuming, without prejudice to above arguments, the Union has power only

on existing inter-state rivers, then the Union will cease to have power to legislate under this

entry. Therefore, the subject matter that is ‘Interlinking or Inter-basin transfer of rivers

between two or more states’ does not fall under any of the three lists of the Seventh Schedule.

ii. That Art. 248 read with entry 97 is to be exercised

34. It is humbly submitted that if the law does not relate to any of the matters enumerated in List

II or List III, it will come under Entry 97 of List I.39

This follows from Art. 248.40

Entry 97 of

List Igive power regarding any other matter not enumerated in List II or List III including any

tax not mentioned in either of those Lists.Therefore it is most respectfully submitted thatArt.

248 (1) 2 read with entry 97 of List I empowers the Union to frame laws for the current

subject matter i.e. ‘Interlinking or Inter-basin transfer of rivers between two or more states’.

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

that Section 3 of the impugned act is not ultra vires the Constitution.

38 Moot Proposition, ¶ 9. 39 UOI v. Dhillon, AIR 1972 SC 1021; Karnataka State v. UOI, AIR 1978 SC 68. 40 Khandelwal Works v. UOI AIR 1985 SC 1211.


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

RIVER PROJECT FOR THE STATE OF VINDHYA IS NOT VIOLATIVE OF

FUNDAMENTAL RIGHTS OF PEOPLE OF STATE OF VINDHYA AND STATE OF

NORMANDA

35. It is most respectfully submitted before the Hon’ble Court that it is the duty of state to respect

international obligations. It is further submitted that the directions given by the Central

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

[hereafter referred as “ALR”] does not violate the fundamental rights of the people of state

of Normanda and State of Vindhya. It is submitted that the State is duty bound to protect the

wetland [A]; and there is no infringement of fundamental rights [B].

[A] THAT THE STATE IS DUTY BOUND TO PROTECT THE WETLAND

36. It is most respectfully submitted that it is the duty of the State to protect the environment.

Therefore, it is submitted that the State was excluded because wetland form an important part

of the ecosystem[i]. Further, Aressia is a party to the Ramsar Convention on Protection of

Wetlands of International Importance [ii]. Further, any attempt to disturb a distinct

ecosystem violates the doctrine of sustainable development [iii].

i. That wetlands form an important part of the ecosystem

37. It is humbly submitted before the Hon’ble Court that wetlands are a valuable natural source

for a country. They contribute to national economics41

and environmental benefits such as

flood and pollution control, shore stabilization and storm protection.42

They have a very high

ecological value as they perform various production, regulation, carrier and information

functions.43

It is further submitted that a wetland takes on the characteristics of a distinct

ecosystem.44

Wetlands are also considered the most biologically diverse of all ecosystems,

serving as home to a wide range of plant and animal life.

41 Barbier, E. B., Acreman M. C. &Knowler D., Economic Valuation of Wetlands : A guide for Policy makers

and Planners, in RAMSAR CONVENTION BUREAU, (1997). 42 Ibid. 43 Schyut Kirsten and Brander Luke, The Economic Value of World Wetlands,,in RAMSAR CONVENTION

BUREAU, (Institute of Environmental Studies, Gland, Amsterdam 2004) 44 DEPARTMENT OF ENVIRONMENTAL PROTECTION, STATE OF FLORIDA GLOSSARY TERMS.

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

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

http://www.dep.state.fl.us/evergladesforever/about/glossary.htm


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38. Reliance is placed on People United for Better Living in Calcutta v. State of West Bengal 45

,

wherein the court explained the importance of wetlands as, a benefactor to the society and

there cannot be any manner of doubt in regard thereto and as such encroachment thereof

would be detrimental to the society which the Law Courts cannot permit.Therefore, it is most

respectfully contended that wetlands form an important part of the ecosystem and it is an

important duty of the Respondent to preserve the same.

ii. That Aressia is a party to the Ramsar Convention of Wetlands of International Importance

39. It is most humbly submitted that Aressia is a contracting party to the Ramsar Convention.

The Ramsar Convention is an international treaty for the conservation and sustainable

utilization of wetlands, recognizing the fundamental ecological functions of wetlands and

their economic, cultural, scientific, and recreational value. Article 1.1 of the Ramsar

convention defines wetlands.It is submitted that the Respondent thus formulates and

implement its planning so as to promote the conservation of the wetlands included in the List,

and as far as possible the wise use of wetlands in its territory.46

It is further submitted that the

Respondent fosters to respect the international treaty and act accordingly.

40. It is submitted that the State of Vindhya the largest wetland in Aressia and is included in the

Ramsar List of Wetlands of International Importance.47

Thus, it is humbly submitted that the

decision of exclusion of state of Vindhya from the Linking of River Project was to give effect

to the wise use principle of Ramsar Convention.48

iii. That any attempt to disturb a distinct ecosystem violates the doctrine of sustainable

development

41. It is humbly submitted that the doctrine of sustainable development has become the focal

point of environmental legislation and judicial decision. It is a process in which development

can be sustained over generations. Making the concept of sustainable development

operational for public policies raises important challenges that involve complex synergies and

trade-offs.49

It is humbly submitted that if the Respondent exercises the option of

45 People United for Better Living in Calcutta v. State of West Bengal, AIR 1993 Cal. 215; Goa Foundation v.

Disha Holdings (2001) 2 SCC 97; Liv Oak Resort v. Panchgani Hill Station Municipal Council (2001) 8 SCC

329. 46 The Convention on Wetlands of International Importance, Art. 3.1,1971. 47 Moot Proposition, ¶ 11. 48 The Convention on Wetlands of International Importance, Art. 6.3,1971. 49 Bombay Dyieng& Mfg. Co. Ltd. v. Bombay Environmental Action Group (2006) 3 SCC 434; Susetha v. State

of T.N., (2003) 6 SCC 543.

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

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

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


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withdrawing the State of Vindhya from the Ramsar list50

and include the State of Vindhya in

Linking of River Project then it will result in an irreversible damage to the environment

resulting from change in the hydrology51

particularly to the fisheries52

and to the economy of

Aressia.53

It is contended that the decision of the Respondent to exclude the State of Vindhya

from the Linking of River Project is in the larger public interest.

42. Reliance is placed on Indian Council for Enviro- Legal Action v.UOI 54

wherein the court

observed that no activities which would ultimately lead to unscientific and unsustainable

development and ecological destruction should at all be allowed. It is humbly submitted that

since wetlands form an important part of the ecosystem and any attempt to disturb this

ecosystem would be degradation of the environment on a large scale according to the reports

of the State of Vindhya Environmental Impact Assessment Committee report55

, it is the duty

of the State to protect the state as its constitutional as well as international obligation.

[B] THAT THERE IS NO INFRINGEMENT OF FUNDAMENTAL RIGHTS

43. It is most respectfully submitted before the Hon’ble Court that the exclusion of State of

Vindhya from the project does not violate the fundamental rights of the people of State of

Normanda and State of Vindhya.It isfurther submitted that that for a right to declared violated

protected under Art. 21 of the Constitution, it must be liable to be tested with reference to

Art. 14and Art. 19ofthe Constitution. It is the duty of the State to protect these rights in

ensuring due protection to the environment of the country.56

Therefore, the exclusion was

valid as the classification was reasonable [i]; further, it does not violate the Right to freedom

under Art. 19 [ii]. Also, the doctrine of Precautionary Principle is taken into consideration

[iii].

i. That the classification was reasonable

44. It is most humbly submitted that Art. 14 does not forbid reasonable classification of persons

for the purpose of achieving specific ends.57

It is further submitted that the decision of the

Respondent was in consonance with its international obligations and from protection of grave

50 The Convention on Wetlands of International Importance, Art.2.5, 1971. 51 Erwin, Kelvin L., “Wetlands and global climatic change: the role of wetlands restoration in changing

world.”2 (2008). 52 National Academy of Agricultural Sciences, India, “Impact of Inter-linking Basin Transfer on Fisheries”,

2004, Pg. No. 3. 53 Moot Proposition, ¶ 1. 54 Indian Council for Enviro- Legal Action v. UOI (1996) 5 SCC 281. 55 Moot Proposition, ¶ 11. 56 Amarnath Shrine v. UOI (2013) 3 SCC 247. 57 LaxmiKhandsari v. State of Uttar Pradesh, AIR 1981 SC 873.


Page | 14


environmental harm. It is thus contended, that it was not illogical and only to protect the

irreversible damage to be caused to the environmentif the State of Vindhya were to be

included in the Linking of River Project, 2010. It is humbly submitted that geographical

considerations form a valid basis for classification. Such classification should be based upon

empirical study. It should be based on a scientific study and relevant data.58

The Respondent

has based its decision on the study of EIA Committee appointed by the State of Vindhya59

and their basis of classification was valid.

45. Reliance is placed on Kishan Singh v. State of Rajasthan 60

wherein the Supreme Court held

that, classification might be properly made on territorial basis andthat an act cannot be held

discriminatory merely because it did not apply to the whole state. Therefore, it is humbly

submitted the decision of exclusion cannot be held discriminatory merely because it only

excludes State of Vindhya from the project as Art. 14 prohibit discrimination between people

who are similarly situated which is not the factum of the present case. Further, the action of

the State was informed by reason and guided by public interest and thus Art. 14 cannot strike

down such action.61

That state action was guided by the EIA Report submitted by the State if

Vindhya and thus was not arbitrary and thus was outside the scope of Art. 14.

ii. That the exclusion doesn’t violate the right to freedom under Art. 19.

46. It is most humbly submitted before the Hon’ble that for a right of freedom of occupation to

be violated the State action must not fall under the restrictions contemplated inArt. 19(2) (6).

The right to freedom of occupation affected due to non-availability of water as result of

decision of the Respondent to exclude the State of Vindhya from the Linking of River

Project, 2010 is a reasonable restriction under Art. 19(6)62

. Reliance is placed on Chintaman

Rao v. State of Madhya Pradesh 63

wherein the court held that the circumstances, purpose

and the urgency of the evil is considered for adjudging reasonableness of a

restriction.Therefore, it is humbly submitted that the exclusion of State of Vindhya from the

Linking of river project was reasonable considering the circumstances of the time to follow

the international treaty and to protect the damage to the environment to be caused if the

58 Kailash Chandra Sharma v. State of Rajasthan (2002) 6 SCC 562. 59 Moot Proposition, ¶ 11. 60 Kishan Singh v. State of Rajasthan, AIR 1955 SC 795. 61 Dwarkadas Marfatia & Sons. V. Board of Trustees, Bombay Port, AIR 1989 SC 1642. 62 Ibid. 63 Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118; Narendra Kumar v. UOI, AIR 1960 SC 430;

Sushila Saw Mill v. State of Orissa and Ors. (1955) 5 SCC 615.


Page | 15


decision of exclusion was not taken. The decision was in the greater interest 64

of the

economy of Aressia and was thus reasonable and thus any right of freedom enumerated in

Art. 19.

iii. That the doctrine of Precautionary Principle is taken into consideration

47. It is most humbly submitted to the Hon’ble Supreme Court that it is the duty of the State to

protect the environment, consisting inter alia, of forests, wildlife, water and air.65

Reliance is

placed onIntellectuals Forum v. State of A.P.,66

wherein the court held that for understanding

the real scope of Arts.14, 19 and 21, the impact of Art.48A and Art. 51A must also be taken

into consideration.

48. It is humbly submitted that it is a constitutional duty of the State under Art. 48A to protect the

natural water bodies.67

Natural sources of air, water and soil cannot be utilized if the

utilization results in irreversible damage to the environment. Thus, the Respondent acting as

the trustee of public resources68

has taken a fair and logical decision to exclude State of

Vindhya from the project so as to prevent environmental degradation. The Respondent have

upheld the Precautionary Principle69

and acted accordingly. Therefore it is the humble

submission of the Respondent that in the light of Art. 31C, no state action can be held void on

the ground that it is inconsistent with Art. 19 and Art. 14 if it is giving effect to the policy of

the state towards securing principles laid down in Part IV of the Constitution.

In light of the arguments advanced and authorities cited, it is humbly submitted that the

exclusion and non-implementation of the Interlinking of Rivers project for the State of

Vindhya does not violate the fundamental rights of the people of State of Vindhya and of

Normanda.

64 Papnasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200. 65 M.C. Mehta v. UOI, AIR 1987 SC 965; Vijay Singh Punia v. RSBPCWP, AIR 2003 Raj. 286, Laxminarayan

Saw Mill v. State of Orissa, AIR 1995 Ori. 114. 66 Intellectuals Forum v. State of A.P., AIR 2006 SC 1350. 67 Susetha v. State of Tamil Nadu 2006 (6) SCC 543. 68 M.C. Mehta v. Kamal Nath, AIR 2002 SC 1515. 69 A.P. Pollution Control Board v. M. V. Naidu, AIR 1999 SC 812.


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IV. THAT THE LINKING OF RIVERS ACT, 2010 DOES NOT VIOLATE THE

ENVIRONMENTAL RIGHTS OF CITIZEN OF ARESSIA AND PROVISIONS OF

THE FOREST CONSERVATION ACT, 1980

49. It is most respectfully submitted that the Linking of rivers Act, [hereafter referred as “the

Impugned Act] does not violate the environmental rights of the citizens of Aressia and the

provisions of Forest Conservation Act, 1980, and therefore stands constitutionally valid. It is

submitted that the impugned Act enacted by Union of Aressia [herein referred as

“Respondent”] is constitutionally valid as there has to be a presumption of constitutionality

[A], that the environmental rights are not being violated, [B] and the provisions of Forest

Conservation Act are not being violated [C].

[A] THAT THERE IS A PRESUMPTION OF CONSTITUTIONALITY

50. It is humbly submitted that the Court will presume the constitutionality of an Act and the

burden of proof is upon the shoulders of the incumbent who challenges it.70

It is further

submitted that in order to sustain the presumption of constitutionality, the court can take into

consideration matters of common knowledge, and, at the same time, the Court must presume

that the legislature understands and correctly appreciates the need of its people.71

51. It is submitted that the constitutional validity of an Act can be challenged only on two

grounds, viz., (i) lack of legislative competence; and (ii) violation of any of the fundamental

rights guaranteed in Part II of the Constitution or any other constitutional provisions. The

ground of invalidation must necessarily fall within the four corners of these two grounds.72

It

is humbly submitted that the impugned act was formed under Entry 56 of list I by the

Respondent. It is thus submitted that the Act is within the legislative competence of the

Respondent.

[B]THAT THE ENVIRONMENTAL RIGHTS OF THE CITIZENS OF ARESSIA ARE NOT VIOLATED

52. It is most respectfully submitted that the Constitution recognises the importance of

environment protection. The Constitution mandates the government to direct its policy in

ensuring that all the material resources of the community are so distributed so as to subserve

the common good. Reliance is placed on various cases73

wherein the matters involving

70 Public Services Tribunal Bar Assn. v. State of U.P (2003) 4 SCC 104. 71 Municipal Committee, Patiala v. Model Town Residents Assn. (2007) 8 SCC 669. 72 Public Services Tribunal Bar Assn. v. State of U.P. (2003) 4 SCC 104. 73 Shri Sachidananda Pandey v. State of W.B., A.I.R. 1987 S.C. 1109; M.C. Mehta v. UOI (1988) 1 SCC 471;

Charan Lal Sahu v. UOI (1990) 1 SCC 613.


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ecology are to be decided in lights of directive principles as these are fundamental in

governance of the country. It is further submitted that the Fundamental Rights are but means

to achieve the goal in Directive Principles of State Policy and thus, must be read

collectively.74

It is submitted that that there exists a right to a healthy environment [i] and

there exists a right to water [ii]. Furtherthe principle of sustainable development has been

complied with to achieve a balance between the two [iii].

i. That there Exists a Right to a Healthy Environment

53. It is most respectfully submitted that right to healthy environment and to sustainable

development are fundamental human rights implicit in right to life.75

People have a right to

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

safeguarded.76

Reliance is placed on Virender Gaur77

where in the court reaffirmed the

Principle 1 of Stockholm Declaration .It is humbly submitted that in the instant case, the Act

aims at implementing the project as a result of which the fundamental right to live in healthy

environment of the people of Aressia may appear to be breached becauseof submergence of

land, forests and diversion of river channels. It is submitted that there exists a right to healthy

environment which is to be read in consonance with the doctrine of sustainable development.

ii. That there exists a right to water

54. It is contended that in light of acute shortage of water for people of Aressia, the Act had

become primarily vital for sustenance of Aressia’s social and economical development. It is

humbly submitted that right to water is a judicially recognised fundamental right.78

Furthermore, in the matter concerning accessibility of water, Supreme Court in the Vellore

case 79

has held the importance of right to water as a common law right.

55. It is contended that right to fresh water is a pressing human need80

. Furthermore, it is

submitted that the Right to fresh water also lays emphasis on the collateral rights of Right to

74 Unni Krishnan v. State of A.P. (1993) 1 SCC 645. 75 A.P. Pollution Control Board II v. Prof. M.C. Nayudu(2001) 2 SCC 62.; Bandhua Mukti Morcha v. UOI 1984

(3) SCC 161. 76 Rural Litigation and Entitlement Kendra v. State of U.P., A.I.R. 1985 SC 652; ChhetriyaPradushanMukti

Sangharsh Samiti v. State of U.P. A.I.R. (1990) SC 2060. 77 Virender Gaur v. State of Haryana (1995) 2 SCC 577. 78 Wasim Ahmed Khan v. Govt. of AP 2002 (5) ALT 526; 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; GautamUzir& Anr.v. Gauhati Municipal Corpn. 1999 (3) GLT 110.

79 Vellore Citizens' Welfare Forum v. UOI, (1996) 5 SCC 647. 80 A.P. Pollution Control Board II v Prof. M.V. Nayudu and Others (2001) 2 SCC 62.


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Food and Right to Livelihood.81

It is contended these are the basic human rights in any

civilised society.82

Also, Supreme Court has held that deprivation of right to livelihood is

deprivation of right to life.83

56. Reliance is placed on Forward Construction Co. v. Prabhat Mandal (Regd.)84

wherein it was

held that the law-maker has to make his choice between the preferred two conflicting public

interests. It is the humble submission of the Respondent that protection of right to water is on

the same grounds of protection as the right to healthy environment of people.The impugned

Act has been enacted with the aforesaid object to ensure availability and accessibility of water

to all the citizens which gains precedence over all other rights85

.

iii. That the principle of sustainable development has been complied with to achieve a

balance between the two

57. It is most respectfully submitted that there is a necessity to strike a balance between the two

co-existing rights. It is submitted that the sustainable development means development that

meets the demand of the present without compromising the needs of the future generation.86

Reliance is placed on Indian Council for Enviro-legal Action v. UOI 87

wherein the doctrine

of Sustainable Development was explained and the principle iterated. It is further submitted

that every generation owes a duty to the coming generation to develop and conserve the

resources in best possible way.88

The Supreme Court has further in cases 89

held that it is

important to 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. But, there also exists a right to

water and in this case there is a public necessity for the same.

58. It is most respectfully submitted that only after checking the viability of the project90

, the

impugned act had been framed by the Respondent. It is further submitted that the project was

81 State of H.P. v. Umed Ram, AIR 1986 S.C. 847. 82 Chameli Singh and Ors.v. State of U.P. and Anr., AIR 1996 SC 1051. 83 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. 84 Forward Construction Co. v. Prabhat Mandal (Regd.), (1986) 1 SCC 100. 85

NAYUDU Supra Note 83. 86 Essar Oil Ltd. V. HalarUtkarshSamiti (2004) 2 SCC 392. 87 Indian Council for Enviro- Legal Action v. UOI, AIR 1987 SC 965. 88 Tamil Nadu v. Hind Stone, A.I.R. 1981 SC 711. 89 M.C. Mehta v. UOI AIR 1988 SC 1037 ; 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. 90 Moot Proposition, ¶ 11.


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in consonance with the principle of sustainable development and it has been ensured by the

respondent that there is no harm to be caused to the citizens.

[C]THAT THE PROVISIONS OF FOREST CONSERVATION ACT, 1980 HAVE NOT BEEN

VIOLATED.

59. The respondent most respectfully submits that the provisions of Forest Conservation Act,

1980 have not been violated. It is submitted that that due procedure was followed for the

project as enunciated in the Forest Conservation Act[i] and that the viability of the project for

Aressia vocalises public interest [ii].

i. That the due process has been complied with

60. It is most respectfully submitted that for the conservation and preservation of forests, any

project in category A of schedule to Environment Clearance Regulation Rules, 2006 read with

section 2(ii) needs clearance from the Central Government before the project begins. Reliance

is placed on various cases91

wherein the importance and significance of attaining clearance

from the Central Government has been emphasized.

61. It is humbly submitted that in the instant case, the EIA committee was appointed by the

Central Government to provide technical expertise for viability of the project without having

much irreversible damage to ecology, thereafter, the same was approved. Thus, it is contended

that section 2 of Forest Conservation Act has not been violated. It is further submitted that in

the High Level Expert Committee, majority stake holders were people from all walks of life

thereby representing the public of Aressia for the purpose of public consultation in such

projects.92

Therefore, it is humbly submitted that due procedure has been followed that

validates the action of the central administration.93

ii. That the precautionary principle has been complied with

62. Reliance is placed on A.P. Pollution Control Board v. Prof. M.V. Nayadu (Retd.) & Ors94

the

apex court held inter alia the principle of precaution involves the anticipation of

environmental harm & taking measures to avoid it or to choose the least environmentally

harmful activity.

91 Anupama Minerals Kasturupally v. UOI (1984) 2 AP LJ 66 (SN); Rural Litigation Entitlement Kendra v. UOI

1989 Supp (1) SCC 504; Tarun Bharat Sangh v. UOI 1993 Supp (3) SCC 115. 92

ENVIRONMENT CLEARANCE REGULATION 2006, CLAUSE 7 STAGE 3. 93 Society for Protection of Silent Valley v. UOI & Ors.UP No. 2949 & 3025 of 1979 (Ker); SHYAM DIVAN &

ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA- CASES, MATERIALS AND STATUES 428-430

(2ND ED., 2001).

94 A.P. Pollution Control Board v. Prof. M.V. Nayadu (Retd.) &Ors, AIR 1999 SC 812.


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63. Further reliance is placed on Vellore Citizen’s95

case wherein it was held that the

precautionary principle is an essential feature of sustainable development. It is humbly

submitted that clearance from EIA committee was an exercise of the precautionary principle

in the concerned project and that the technical expertise was relied upon.The Respondent

most humbly contends that no violation of provisions of Forest Conservation Act has taken

place.

In light of the arguments advanced and authorities cited, it is humbly submitted that the

environmental rights of the citizens have not being violated and that the provisions of Forest

Conservation Act, 1980 have been duly complied with and thus there arises no question of

illegality of the impugned Act on the grounds raised.

95 Vellore Citizen’s Welfare Forum v. UOI, A.I.R. 1996 SC 2715.


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PRAYER

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

Respondent humbly prays that the Hon’ble Court be pleased to adjudge:

1) That the petition filed by Forum for Environmental Rights is not maintainable before the

High Court of Neruda;

2) That Section 3 of the Linking of Rivers Act, 2010 is not ultra vires to the Constitution of

Aressia;

3) That the exclusion and non- implementation of Linking of River Project for the State of

Vindhya is not in violation of the Fundamental Rights of the people of State of Vindhya

and State of Normanda; and

4) That the Linking of Rivers Act 2010 does not violate the environmental rights of the

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

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

justice and good conscience.

And for this act of kindness the Counsel for the Respondent shall duty bound forever pray.

Sd/-

(Counsels for Respondent)

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