BMS Respondent

T- 09 nd

B.M. Sreenivasaiah Memorial 2 National Moot Court Competition, 2016 BEFORE THE HON’BLE SUPREME COURT OF KANO [UNDER ARTICLE 136 OF THE CONSTITUTION OF KANO] IN THE MATTER OF

STATE OF MANDEVILLE…………………………………………………PETITIONER

V.

STATE OF KARAK……………………………………… KARAK………………………………………………………RESPONDENT ………………RESPONDENT

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF KANO MEMORIAL FILED ON BEHALF OF THE RESPONDENT

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B.M.SREENIVAS AIAH MEMORIAL 2

NATIONAL MOOT COURT COMPETITION, 2016

TABLE OF CONTENTS

INDEX OF AUTHORITIES................................................... AUTHORITIES................................................... ................................................... 4 STATEMENT OF JURISDICTION............................................................................ .............. 8 SUMMARY OF FACTS F ACTS ........................................................................... ................................ 9 STATEMENT OF ISSUES ....................................................................... .............................. 10 SUMMARY OF ARGUMENTS ..................................................... ............................................................................................. ........................................ 11 ARGUMENTS ADVANCED .................... ........................................................ ............................................................................. ..................... 14 1. MAINTAINABILITY OF THE SPECIAL LEAVE PETITION BEFORE THE SUPREME COURT OF KANO ....................... ........................................................ ...................................................................................... .............................. 14 A.

BAR ON THE JURISDICTION OF THE SUPREME COURT OF KANO: ......... 14

2. THE CLEARANCE GIVEN BY THE UNION GOVERNMENT MUST NOT BE REVOKED ............................................. ........................................................ ............................................................................. ..................... 20 A.

CLEARANCE GIVEN BY THE UNION GOVERNMENT IS IN ACCORDANCE

WITH THE PROVISIONS OF LAW: ........................... ................................................. 20 B.

AGREEMENT MUST BE ENFORCED: ................................................... ............ 22

C.

INTERNATIONAL WATER-SHARING PRINCIPLES: ...................................... 23

3. THE CONSTRUCTION OF THE DAM SHOULD NOT BE HALTED ....................... 25 A. THE PLIGHT OF THE PEOPLE AND THE NEED FOR WATER: ........................ 25 B. NO ADVERSE ECOLOGICAL IMPACT: .................................................... ................................................................ ............ 29 PRAYER ..................................................... ............................................................................................................. ............................................................................. ..................... 33 APPENDIX ................................................. ........................................................ ............................................................................. ..................... 34 ABBREVIATIONS USED: ................................................ ................................................. 34 EXHIBITS ........................................................... ........................................................ .................................................................... ............ 36 CONSTITUTIONAL PROVISIONS .............. ........................................................ .................................................................... ............ 36

MEMORIAL ON BEHALF OF RES PONDENT

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ISRWD Act,1956 ....................................................... .............................................................................................................. .......................................................... ... 38 DISASTER MANAGEMENT ACT, 2005............................................ .............................. 39 NATIONAL WATER POLICY, 2012 .................................................. .............................. 40 NATIONAL WATER POLICY, 2002 .................................................. .............................. 40 INTERNATIONAL AUTHORITIES .................................................... .................................................................................. .............................. 40 BRUNDTLAND REPORT, OUR COMMON FUTURE,1987: ..................................... 40 UNDP REPORT,1990,P.10 REPORT,199 0,P.10 : ................................................... ........................................ 40 EARTH SUMMIT, RIO DECLARATION,1992: ............................................... ............ 41 UN DECLARATION ON THE RIGHT TO DEVELOPMENT, 1986:.......................... 1986:.......................... 41 BERLIN RULES ON WATER RESOURCES,2004: ..................................................... 42


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INDEX OF AUTHORITIES

CASES

Ashok Nagar Welfare Association & Anr. v. R.K. Sharma & Ors., AIR 2002 SC 335. ........... 14 Attakoya Thangal v. Union of India, 1990 (1) KLT 580. ...................................................... ......................................................... ... 22 Bipinchand J.Diwan v. State of Gujarat, AIR 2002 Guj 9. ................................................... ... 23 Bombay Dyeing & Manufacturing Co. Ltd. v. Bombay Environmental Action Group, (2006) 3 SCC 434.................................................................................................................... 27 Central Inland Water Transport Corporation v. Brojo Nath , AIR 1986 SC 1571. ................ .... ............ 24 Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 2911. ................................................ 23 Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, AIR 1987 SC 117. ............................... 11 Cmd/Chairman,. B.S.N.L. & Ors. v. Mishri Lal & Ors., (2011) 14 SCC S CC 739. ........................ 18 Coffee Board v. Jt. Commercial Tax Officer, AIR 1971 SC 870. ......................................... ... 16 Delhi Water Supply & Sewage Disposal Undertaking v. State of Haryana, AIR 1996 SC 2992. ............................................... ........................................................ .............................................................. ...... 23, 25 Essar Oil Ltd. v. Halar Utkarsh Samiti, AIR 2004 SC 1834. ................................................ ... 21 J.P.Unnikrishnan v. State of Andhra Pradesh, AIR 1993 SC 2178. ........................................ 23 Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214. ........... 14 Jose Da Costa v. Bascora Sadasiva Sinai Narcornium, AIR 1975 SC 1843. .......................... 14 Kapila Hingorani v. State of Bihar, AIR 2003 SC 3724. ...................................................... ......................................................... ... 25 Kays Construction Co. v. Workmen, AIR 1959 SC 2008. ..................................................... ........................................................ ... 15 Kishanchand v. S.T.A., AIR 1968 SC 1461. ....................................................................... 14, 15 LIC of India & Anr. v. Consumer Education Research Centre & Ors. Etc., AIR 1995 SC 1811. ........................................................ ............................................................................................................... .......................................................... ... 24 M.C.Mehta v. Union of India, AIR 2002 SC 1696. ...................................................... .................................................................. ............ 24 Madhu Kishore v. State of Bihar, AIR 1996 SC 1864. ................................................. ............ 26 N.D.Jayal & Anr. v. Union of India & Ors., AIR 2004 SC 867. .................................. 26, 27, 28 Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751. ................ 25,27,28,29,30,31 MEMORIAL ON BEHALF OF RES PONDENT

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National Textile Worker’s Union v. P.R.Ramakrishnan, AIR 1983 SC 750. ........................... 26 Olga Tellis v. Bombay Bomba y Municipal Corporation, AIR 1986 SC 180. 180 . .................................. 24, 25 Paschim Banga Khet Mazdoor Samiti & Ors. v. State of West Bengal & Anr., AIR 1996 SC 2426. ............................................... ........................................................ .................................................................... ............ 24 R (Pretty) v. DPP, (2002) 1 All ER 1. ........................................................ ...................................................................................... .............................. 22 Rai Sahib Ram Jawaya Kapur and Ors. v. The State of Punjab, AIR 1955 SC 549. ............... 17 Registrar, Trade Marks v. Ashok Chandra, AIR 1955 SC 558. ............................................... 14 Samata v. State of Andhra Pradesh, AIR 1997 SC 3297. 329 7. ........................................................ 26 Shantistar Builders v. Narayan Khimalal Totame, AIR 1990 SC 630. .................................... 24 Shri Balvantrai Chimanlal Trivedi v. M.N. Nagrashna & Ors., AIR 1960 SC 1292. .............. 14 State of Andhra Pradesh v. State of Karnataka & Ors., AIR 2001 SC S C 1560. .................... 13, 18 State of Andhra Pradesh v. State of Karnataka. ................................................. ............... 13, 18 State of Nebraska v. State of Wyoming, 373 U.S. 541 (1963).................................................. 20 State of Orissa v. Govt. of India, (2009) 5 SCC 492. ................................................... ............ 23 State of Tamil Nadu Na du v. State of Karnataka & Ors., 1991 Supp (1) SCC 240. ......................... 12 Tehri Bandh Virodhi Sangarsh Samiti v. State of U. P., (1992) Supp (1) SCC 44. ................. 19 The British India Steam Navigation Co. Ltd v. Jasjit Singh, Addl. Collector of Customs, Calcutta & Ors., .................................. ....................................................... ............................................................................................... ........................................ 15 The South India Corporation (P) Ltd. v. The Secretary, Board of Revenue, Trivandrum & Anr., AIR 1964 SC 207. ....................................................... .............................................................................................................. .......................................................... ... 11 Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715. ................................. 26

BOOKS REFERRED

1. Ahluwalia S.K, International Environmental Policy, ABD Publishers, Rajasthan. nd

2. Arvind.P.Datar, Commentary on the Constitution of India, Vol.1, 2 Ed. Reprint 2010, Lexis Nexis, Butterwords Wadhwa Publication, Nagpur. 3. Arvind.P.Datar, Commentary on the Constitution of India, Vol.2, 2nd Ed. Reprint 2010, Lexis Nexis, Butterwords Wadhwa Publication, Nagpur.


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NATIONAL MOOT COURT COMPETITION, 2016 th

4. Basu.D.D, Commentary on the Constitution of India, Vol.5, 8 Ed. 2009,Lexis Nexis, Butterwords Wadhwa Publication, Nagpur. th

5. Basu.D.D, Commentary on the Constitution of India, Vol.8, 8 Ed. Reprint 2012,Lexis Nexis, Butterwords Wadhwa Publication, Nagpur. th

6. Basu.D.D, Shorter Constitution of India, Vol.1, 14 Ed., Lexis Nexis, Butterwords Wadhwa Publication, Nagpur. 7. Basu.D.D, Shorter Constitution of India, Vol.2, 14th Ed., Lexis Nexis, Butterwords Wadhwa Publication, Nagpur. 8. Basu.D.D, Administrative Law, 6th Ed., Kamal Law House. 9. Choudhry R.N, Law of Forests in India, 1999 Ed., Orient Publication Co. 10. Cullet.P, Madhav.R, Gowland, Ramanathar, Water Governance in Motion, Foundation Books. 11. Dodda Srinivas Rao, Inter-State Water Disputes in India,1998, Deep & Deep Publications Pvt. Ltd., New Delhi. 12. Dr. Maheshwara Swamy.N, Laws Relating to Environmental Pollution & Protection, Asia Law House. 13. Dr.Indra Priya Dasini & Prof. K.Uma Devi, Environmental Law and Sustainable Development. 14. Indrajith Dube, Environment Jurisprudence, Lexis Nexis, Butterwords Wadhwa Publication, Nagpur. th

15. Jain M.P & Jain S.N, Principles of Administrative Law, 5 Ed. Reprint 2009, Lexis Nexis, Butterwords Wadhwa Publication, Nagpur. th

16. Jain.M.P, Indian Constitutional Law, 7 Ed., 2014, Lexis Nexis, Butterwords Wadhwa Publication, Nagpur. nd

17. Justice Doabia.T.S, Environment & Pollution Laws in India, Vol.1 & 2, 2 Ed., 2010, Lexis Nexis, Butterwords Wadhwa Publication, Nagpur. 18. Paras Diwan & Peeyushi Diwan, Vol.1, Environment Administration Law & Judicial Attitude, Deep & Deep Publications Pvt. Ltd., New Delhi. th

19. Shukla.V.N, Constitution of India, 12 Ed., 2013, Eastern Book Company, Lucknow.


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LEGAL DATABASES

1. All India Reporter 2. Manupatra 3. SCC Online

STATUTES REFERRED

1. The Constitution of India, 1950 2. Inter-State River Water Disputes Act, 1956 3. The Disaster Management Act, 2005

LEXICONS USED

1. Ramanatha Aiyar.P, Concise Law Dictionary, 5th Ed., 2014, Lexis Nexis, Butterwords Wadhwa Publication, Nagpur.

INTERNATIONAL CONVENTIONS

1. Berlin Rules on Water Resources, 2004 2. Earth Summit, Rio Declaration, 1992 3. Stockholm Declaration, 1972 4. UN Declaration on the Right to Development, 1986 5. UN Water Conference, 1997 6. UNDP Report, 1990 7. World Charter for Nature, 1982


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STATEMENT OF JURISDICTION

The Respondent humbly submits this memorandum in response to the petition filed by State of Mandeville before this Honourable Court. The petition is filed under Article 136 of the Constitution of Kano. The Respondent reserves the right to contest the Jurisdiction of this Honourable Court.


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SUMMARY OF FACTS

•

The Union of Kano, the fastest developing democratic republic is divided into North, South, East and West Zone. The Nudi Adami Party (NAP) at the centre has made promoting the use of the abundant renewable energy as its National Policy. The two neighbouring States, State of Mandeville and State of Karak, re-organised on the basis of language are situated in the predominantly agricultural Eastern Zone of Kano and have had stressed relations pertaining to distribution of water from the inter-state river Aishani which takes birth in the State of Karak and has a river basin covering 34,273 sq.km in the State of Karak and 43,856 sq.km in State of Mandeville.

•

The tensions were kept under control as both States were ruled by the same political party (Kano Adami Party). The two State governments also entered into a water sharing agreement which proposed the construction of a water dam AISHANI JAL to aid the drought prone areas in the State of Karak in 1970.

•

In 1985, a new regional party named Mandi Adami Party (MAP) displaced the former in Mandeville while the KAP still ruled in Karak. Thus due to ideological differences, the Aishani Jal Project was completely stalled. Around the same time, a drought hit the western part of Karak claiming lives and instigating farmers to riot against the Government for stalling the project. This led to the change in Government in Karak and the Nudi Adami Party (NAP) came to power. When talks resumed to settle the issue, Karak claimed that it would require 7.5 TMC of water to resolve its drought issues which was not accepted by Mandeville on environmental grounds.

•

Mandeville approached the Union of Kano for referring the matter to a Water Tribunal which was accordingly created. Meanwhile Karak sought clearance for the AISHANI JAL Project from the Union Government as there was a complete halt on its economy. The Government, through the Ministry of Water Resources and the National Environment Engineering Institute Institute gave in principle clearance causing Mandeville to approach the Water Tribunal seeking a stay on the clearance and an injunction to stop the construction.The tribunal, not convinced with this line of argument rejected the application. Aggrieved by this, the State of Mandeville has approached the Supreme Court of Kano seeking relief. MEMORIAL ON BEHALF OF RES PONDENT

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STATEMENT OF ISSUES

ISSUE 1: WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE BEFORE THE SUPREME COURT OF KANO?

ISSUE 2: WHETHER THE CLEARANCE OBTAINED BY THE STATE OF KARAK IS IN DISCORD WITH THE PROVISIONS OF LAW?

ISSUE 3: WHETHER THE CONSTRUCTION OF THE AISHANI JAL PROJECT MUST BE HALTED?


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SUMMARY OF ARGUMENTS

ISSUE-1: MAINTAINABILITY OF THE SPECIAL LEAVE PETITION BEFORE THE SUPREME COURT OF KANO:

A. BAR ON THE JURISDICTION OF THE SUPREME COURT OF KANO:

On a perusal of Article 262 of the Constitution and Section 11 of the ISRWD Act of 1956, it is apparent that the Parliament is authorised by law to provide that neither the Supreme Court nor any other Court shall exercise jurisdiction in respect of any dispute or complaint relating to the use, distribution or control of the waters of, or in, any inter-State river or river valley. In this regard, it is contended that the jurisdiction of the Supreme Court or any other Court to adjudicate in matters falling under the purview of the ISRWD Act is barred in lieu of Article 262 read along with Section 11 of the said Act. Article 131 being subject to the other provisions of the Constitution including Article 262, if Parliament has made any law for adjudication of any water dispute or a dispute relating to distribution or control of water in any inter-State river or river valley, then such a dispute cannot be raised before the Supreme Court under Article 131, even if the dispute is one between the Centre or the State or between the two States. Article 136 provides for a petition by way of special leave in any judgement, order, determination or decree in any cause or matter before any Court or Tribunal. It does not confer a right of appeal on any party, but it confers a discretionary power on the Supreme Court to interfere in suitable cases. The power under Article 136 is an extraordinary power to be exercised in rare and exceptional circumstances. Furthermore in this present case, the Tribunal has not violated any of the aforementioned rules and hence it is contended that an appeal cannot lie to the Supreme Court by way of Article 32. Hence, in lieu of the submitted arguments, it is contended that this Hon’ble Court has no jurisdiction to entertain any ap peal against the impugned action of the Tribunal.


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ISSUE-2: THE CLEARANCE GIVEN BY THE UNION GOVERNMENT MUST NOT BE REVOKED:

A. CLEARANCE GIVEN BY THE UNION GOVERNMENT IS IN ACCORDANCE WITH THE PROVISIONS OF LAW:

In the present case, the in principle clearance given by the Union Government was done so through the Ministry of Water Resources and the same was approved by the National Environmental Engineering Institute. The clearance given was not only in accordance with the provisions of law but is also in furtherance of the Government’s National Policy, which is, promoting the use of renewable energy resources.

B. AGREEMENT MUST BE ENFORCED:

In a modern State, whatever be the form of government, the individual is affected in his everyday life and in the exercise of his civil rights by acts of the State and its officials in various spheres and in different ways. It is evident that had the agreement between the States been implemented, it would have led to the construction of the dam and would have provided water to the drought prone areas of the State of Karak, hence saving the lives of its citizens. It is thus contended by the respondents that the agreement entered into by the State of Mandeville and the State of Karak must be enforced.

D. INTERNATIONAL WATER-SHARING PRINCIPLES:

In the present case, as the lives of the citizens of the State of Karak are at stake, along with the economical predicament of the State, and as due weightage has also been given to the environment, it is contended by the respondents that the clearance given by the Union Government must not be revoked, keeping in mind the widely established principles of International Law in relation to the present case.


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ISSUE-3: THE CONSTRUCTION OF THE DAM MUST NOT BE HALTED:

A.THE PLIGHT OF THE PEOPLE AND THE NEED FOR WATER:

The right to have water for drinking purposes is a part of right to life. Due to the severe drought, there has been a huge loss of life and property in the State of Karak. The sanctity of human life is the most important aspect of all social values and hence it must be protected to the maximum possible extent especially when resources are available. Water is the basic need of survival of human beings and is a part of right to life and human rights as enshrined under Article 21 and can be served only by providing sources of water where there is none. Droughts are devastating as water supplies dry up, crops fail to grow, animals die and malnutrition and ill health become widespread. The environmental effects of drought, including salinisation of soil and groundwater decline, increased pollution of freshwater ecosystems and regional extinction of animal species occur. The Constitution of Kano, established a welfare State both at the Centre and the State, and a welfare State cannot remain blind to the problems that involve the basic necessities of life and hence, it is the duty of the State to provide security to the people especially when a natural calamity occurs. If the construction of the dam is halted, the people will be placed far from access to water for domestic purposes which could otherwise be provided by the State.

B. NO ADVERSE ECOLOGICAL IMPACT:

Any human activity will cause the natural state of the environment to change, but it cannot be presumed that a mere slight change in the environment would amount to destruction of ecology. The severe drought in the State of Karak has caused agitation in the minds of the inhabitants, especially the farmers and in pursuance of the progress made towards the implementation of the project, these people cannot be deprived of the right to develop from the situation the drought has driven them to. Moreover, the concept that ecology and development are enemies has become obsolete and sustainable development is the driving force today enabling development to take place without the destruction of the ecology. Also, the construction of the dam would further better the environment of the areas nearby as the drought causes severe environmental damage and flora and fauna also suffer without water. Therefore, the construction of the dam is in line with sustainable development and does not have any adverse impact on the ecology and hence must not be stopped.


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ARGUMENTS ADVANCED

1. MAINTAINABILITY OF THE SPECIAL LEAVE PETITION BEFORE THE SUPREME COURT OF KANO

A. BAR ON THE JURISDICTION OF THE SUPREME COURT OF KANO:

i.

It is a general principle of Interpretation of Statutes that a clause beginning with the expression "notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract" is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict, an overriding effect over the provision of the Act or the contract mentioned in the non-obstante clause. It is equivalent to saying that inspite of the provision of the Act or any other Act mentioned in the nonobstante clause or any contract or document mentioned the enactment following it will have its full operation.

ii.

1

The phrase "notwithstanding anything in the Constitution” is equivalent to saying that inspite of the other articles of the Constitution, or that the other articles shall not be an impediment to the operation of the Article.

iii.

2

In order to appreciate the above controversy it would be proper to refer to Article 262 of the Constitution and Section 11 of the Act which read as under: Article 262 - Adjudication of disputes relating to waters of inter-state rivers or river valleys:

1

Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, AIR 1987 SC 117.

2

The South India Corporation (P) Ltd. v. The Secretary, Board of Revenue, Trivandrum & Anr.,

AIR 1964 SC 207.


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(1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley. (2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other Court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in Clause (1). Section 11: Bar of Jurisdiction of Supreme Sup reme Court and other Courts: Notwithstanding anything contained co ntained in any a ny other law, neither the Supreme Court nor no r any other court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act. iv.

On a perusal of Article 262 of the Constitution and Section 11 of the ISRWD Act of 1956, it is apparent that the Parliament is authorised by law to provide that neither the Supreme Court nor any other Court shall exercise jurisdiction in respect of any dispute or complaint relating to the use, distribution or control of the waters of, or in, and inter-State river or river valley.

v.

3

The jurisdiction of the Supreme Court in disputes as to existence of a legal right between the Union and the States or between the States inter se is exclusive, except in certain matters excepted by other provisions of the Constitution.

vi.

The distinction between Article 262 of the Constitution and Entry 56 of List I of the Seventh Schedule of the Constitution is that whereas the former speaks of adjudication of disputes with respect to use, distribution or control of waters of any inter-State river or river valley, Entry 56 speaks of regulation and development of inter-State rivers and river valleys. It cannot be disputed that the Act, viz., the ISRWD Act, 1956, is not legislation under Entry 56. It can be enacted and has been enacted only under Article 262 of the Constitution. In this regard, it is contended that the jurisdiction of the Supreme Court or any other Court to adjudicate in matters falling under the purview of the ISRWD Act is barred in lieu of Article 262 read along with Section 11 of the said Act.

3

State of Tamil Nadu v. State of Karnataka & Ors., 1991 Supp (1) SCC 240.


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vii.


Article 131 of the Constitution subject to the other provisions of the Constitution confers Original Jurisdiction on the Supreme Court over a dispute between the Central Government and one or more States or between two or more States subject to the condition that the dispute involves any question whether of law or fact on which the existence or extent of a legal right depends. Article 262(1) of the Constitution authorises the Parliament to make laws for adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley. Clause 2 of Article 262 also authorises the Parliament to provide by law for the exclusion of the jurisdiction of the Supreme Court or any other Court in respect of a dispute or complaint as is referred to in Clause (1).

viii.

Article 131 being subject to the other provisions of the Constitution including Article 262, if Parliament has made any law for adjudication of any water dispute or a dispute relating to distribution or control of water in any inter-State river or river valley, then such a dispute cannot be raised before the Supreme Court under Article 131, even if the dispute is one between the Centre or the State or between the two States. In exercise of Constitutional power under Article 262(1), the Parliament, in fact has enacted a law called the Inter-State Water Disputes Act, 1956 and Section 11 of the said Act provides that neither the Supreme Court nor any other Court shall have jurisdiction in respect of 4

any water dispute which could be referred to a tribunal under the Act. ix.

Article 136 provides for a petition by way of special leave in any judgement, order, determination or decree in any cause or matter before any Court or Tribunal. This Article begins with the words “Notwithstanding anything in this chapter”. The words clearly indicate that the exemption granted by the non obstante clause is in regard to this chapter alone, and has no bearing on the entire Constitution. Hence while reading this Article, due regard must be given to Article 262 of the Constitution.

x.

In regard to exercise of jurisdiction through Article 136 of the Constitution, it is a well settled principle that the exercise of jurisdiction by Article 136 is discretionary. It does not confer a right of appeal on any party, but it confers a discretionary power on the 5

Supreme Court to interfere in suitable cases. 4

State of Andhra Pradesh v. State of Karnataka & Ors., AIR 2001 SC 1560.

5

Ashok Nagar Welfare Association & Anr. v. R.K. Sharma & Ors., AIR 2002 SC 335.


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xi.


The power under Article 136 is permitted to be invoked not in a routine fashion, but in very exceptional circumstances when a question of law of general public importance arises or a decision sought to be impugned before the Supreme Court shocks its conscience. Article 136 does not confer a right of appeal. The power under Article 136 is 6

an extraordinary power to be exercised in rare and exceptional circumstances. xii.

The power under Article 136 cannot be taken away expressly or impliedly by any ordinary legislation short of Constitutional Amendment.7 It would be pertinent to note here that the power of appeal to this Hon’ble Supreme Court has not been barred by an ordinary legislation nor by the Constitution itself.

xiii.

An application for special leave may be summarily rejected where the Court is satisfied 8

that no substantial injustice has been done. In this regard it is humbly submitted before the Hon’ble Court that the petitioners have had no injustice wrought upon them, and justice was done on them when the Water Disputes Tribunal was constituted at their request as per the provisions of the law. xiv.

Additionally, leave will not be granted in case of exercise of discretion by a Tribunal in a 9

matter which falls within its discretion under the relevant law. In this present case, it is absolutely clear that the matter was the same for which the very Tribunal was constituted and being the sole authority capable of adjudicating it, the matter fell within the Tribunal’s discretion, and the same was exercised by the Tribunal. xv.

The general principle to be remembered in this context is that the Supreme Court would not disturb the decisions of specially constituted Tribunals or authorities, as if it were an appeal Court, and would not review findings of fact except where they are perverse or 10

shocking to the judicial conscience or the like. xvi.

It is to be noted at this juncture that a strong point of such a Tribunal is its freedom from political influence and its neutrality in the dispute in which it adjudicates a djudicates upon, more or less like the impartiality of a Judge in an ordinary Court, since being autonomous and not

6

Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214.

7

Jose Da Costa v. Bascora Sadasiva Sinai Narcornium, AIR 1975 SC 1843.

8

Shri Balvantrai Chimanlal Trivedi v. M.N. Nagrashna & Ors., AIR 1960 SC 1292.

9

Registrar, Trade Marks v. Ashok Chandra, AIR 1955 SC 558.

10

Kishanchand v. S.T.A., AIR 1968 SC 1461.


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an integral part of the Government department, it is more or less free from such bias which an administrative department might have in implementing its policies. xvii.

The reason to take these disputes out of the purview of the Courts and appoint Tribunals to solve them is that rules of law based on the analogy of private proprietary interests in water do not afford a satisfactory basis for settling these disputes where the interests of the public at large in the proper use of water supplies are involved.

xviii.

It is the contention of the respondents, while maintaining that the Tribunal has adjudicated correctly, that a decision of a Tribunal cannot be challenged on the ground that the Tribunal has come to a wrong decision, having the jurisdiction to come to that decision.11

xix.

It has previously been held by this Court that when the evidence that was shut out relates to an isolated point which in the opinion of the Tribunal has no bearing on the issue 12

before them, there is no sufficient ground for interference by the Supreme Court. In the present case, the point of contention raised by the petitioners is indeed an isolated point which barely has a bearing on the larger issue at hand, that is, the loss of life caused by the drought and the life of the people of the State of Karak. xx.

Furthermore, the Supreme Court generally does not entertain appeals against orders passed by a Tribunal unless the alternative remedies provided by the relevant statute by 13

way of appeal or revision have been pursued by the aggrieved party. The petitioners in this case did not file for a revision by the Tribunal, and as the decision of the Tribunal does not become final until it has been published in the Official Gazette, the petitioners had an opportunity to file a revised petition before the Tribunal. xxi.

In regard to appeal by way of Article 32 of the Constitution, the Supreme Court has explained that a petitioner has a right to move a writ petition under Article 32 to challenge a quasi-judicial decision where the action is proposed to be taken under an ultra vires statute, vires statute, or where the action is taken without jurisdiction, or without following

11

Kays Construction Co. v. Workmen, AIR 1959 SC 2008.

12

Kishanchand v. S.T.A., AIR 1968 SC 1461.

13

The British India Steam Navigation Co. Ltd v. Jasjit Singh, Addl. Collector of Customs, Calcutta & Ors.,

AIR 1964 SC 1451.


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natural justice.

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In this present case, the Tribunal has not violated any of the

aforementioned rules and hence it is contended that an appeal cannot lie to the Supreme Court by way of Article 32. xxii.

Hence, in lieu of the submitted arguments, it is contended that this Hon’ble Court has no jurisdiction to entertain any appeal against the impugned action of the Tribunal. It is submitted that Article 262 of the Constitution clearly provides that in respect of adjudication of disputes relating to waters of inter-State rivers has to be decided by law made by Parliament in this regard. Clause (2) of Article 262 further provides that Parliament may by law provide that neither the Supreme Court nor any other Court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in Clause (1), notwithstanding anything in this Constitution. It is submitted that the ISRWD Act, 1956 has been enacted by Parliament in this regard, and Section 11 of the said Act clearly takes away, not only the jurisdiction of any other Court but also of the Supreme Court in express terms.

14

Coffee Board v. Jt. Commercial Tax Officer, AIR 1971 SC 870.


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2. THE CLEARANCE GIVEN BY THE UNION GOVERNMENT MUST NOT BE REVOKED

A. CLEARANCE GIVEN BY THE UNION GOVERNMENT IS IN ACCORDANCE WITH THE PROVISIONS OF LAW:

i.

The functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive can ca n exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, 15

however, can never go against the provisions of the Constitution or of any law. ii.

The limits within which the executive Government can function under the Constitution of Kano can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up. Our Constitution, though federal in its structure, is modeled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law. The executive function comprises both the determination of the policy as well as carrying it into execution.16

iii.

In the present case, the in principle clearance given by the Union Government was done so through the Ministry of Water Resources and the same was approved by the National Environmental Engineering Institute. The clearance given was not only in accordance with the provisions of law but is also in furtherance of the Government’s National Policy, which is, promoting the use of renewable renewa ble energy resources.

iv.

In regard to the validity of the clearance given by the Union Government, it is contended by the Respondents that the same being given in furtherance of its National Policy,

15

Rai Sahib Ram Jawaya Kapur and Ors. v. The State of Punjab, AIR 1955 SC 549.

16

Supra.


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constitutes a policy decision of the Government. In this regard, it is a well settled and established principle that matter regarding the policy decisions of the Government cannot 17

be interfered with , as long as such decisions are within the scope of powers conferred upon the executive by the Parliament. v.

When clearance is given for the furtherance of the project by the concerned authority, in the absence of any law that compels such authority to seek the permission of the other riparian States for the granting of such clearance, such clearance is a valid one and the Central Government is not duty bound to take the consent of other States while sanctioning a project of any of the riparian States.18

vi.

The several provisions of the Constitution have been tested and there is no reason to conceive that any State will force ahead with its project concerning usage of water in respect of Inter State reservoir without getting the sanction/concurrence of the Appropriate Authorities and without compliance with the relevant statutes or laws made by the Parliament. It is a common knowledge that the large scale projects planned by each of these States, are submitted to the Planning Commission for its approval and for getting financial assistance. Such projects are then examined by different authorities and it is only after getting approval of the Planning Commission the same is submitted to the appropriate departments of the Government of Kano where again all the formalities are 19

scrutinised and final sanction or permission is granted. vii.

Furthermore, The National Environmental Engineering Institute, being a pioneer and leading expert on environmental science and engineering for sustainable development, has approved of and has given in principle clearance, along with the Ministry of Water Resources, for the AISHANI JAL project, and the same can be implemented in lieu of the given clearances.

viii.

It is clearly indicated by the facts that the Union Government has considered the safety of the project in detail by obtaining the reports of experts. Clearance may be given only after

17

Cmd/Chairman,. B.S.N.L. & Ors. v. Mishri Lal & Ors., (2011) 14 SCC 739.

18

State of Andhra Pradesh v. State of Karnataka & Ors.,

AIR 2001 SC 1560.

19

Supra.


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the Government is satisfied with the report of experts. It has been held in such situations, 20

directions restraining authorities from implementation of projects cannot be given. ix.

Thereby, it is contended and humbly submitted that the in-principle clearance given by the Union Government through the Ministry of Water Resources is a valid one and hence the project can be implemented.

B. AGREEMENT MUST BE ENFORCED:

i.

In a modern state, whatever be the form of government, the individual is affected in his everyday life and in the exercise of his civil rights by acts of the State and its officials in various spheres and in different ways. Some of these acts are done by the State as the sovereign while others are done by the State in trading and other capacities in the same manner as a private individual does.21

ii.

It has been established in the facts that the State of Mandeville had entered into a water sharing agreement with the State of Karak in the year 1970 which has proposed the construction of the AISHANI JAL dam across the border region for the purpose of providing water to the drought prone areas of the State of Karak.

iii.

The project which was the object of the agreement had been delayed and completely stalled due to ideological differences between the Kano Adami Party and the Mandi Adami Party, the then ruling parties of the State of Karak and the State of Mandeville respectively. And due to a subsequent drought in the State of Karak, there was a loss of 189 lives in the State due to the non-implementation of the project as per the agreement.

iv.

It is hence evident that had the agreement between the States been implemented, it would have led to the construction of the dam and would have provided water to the drought prone areas of the State of Karak hence saving the lives of its citizens.

v.

It is hence contended by the respondents that the agreement entered into by the State of Mandeville and the State of Karak must be enforced, and as the in principle clearance

20

Tehri Bandh Virodhi Sangarsh Samiti v. State of U. P., (1992) Supp (1) SCC 44.

21

Basu, D. D., Administrative Law, 6th Ed., Kamal Law House, Kolkata, at p. 371.


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given by the Union Government has the same effect as that of enforcing the agreement, it must be considered to be valid and be upheld.

C. INTERNATIONAL WATER-SHARING PRINCIPLES:

i.

The Doctrine of Equitable Apportionment lays down that every riparian or basin State or other concerned entity justifying entitlement for a share is entitled to a fair share of water of the said basin or inter-state river as the case may be. Upon the conception of this theory, the emphasis was shifted from the “Doctrine of Prior Appropriation” to 22

“Equitable Apportionment Theory”. Hence the right of states in inter-State water is determined by applying the rule of equitable apportionment, each unit getting a fair share of the water of the common river. ii.

23

In relation to the aforementioned rule of water-sharing, it is contended that the respondent State is justified in having sought the clearance of the Union Government. The conditions prevailing in the State of Karak are such that they demand the implementation of the JAL project as a solution to its problems.

iii.

Further, it is contended that as the present case deals with the environment, the project must be implemented keeping in mind the Stockholm Declaration of 1972 which has been described as the "Magna-Carta of our environment".

iv.

The need for economic development has been dealt with in Principle 8 of the Stockholm Declaration of 1972 where it is said that "economic and social development is essential for ensuring a favorable living and working environment for man and for creating conditions on earth that are necessary for improvement of the quality of life". The importance of maintaining a balance between economic development on the one hand and environment protection on the other is again emphasized in Principle 11 which says "The environmental policies of all States should enhance and not adversely affect the present or future development potential of developing countries nor should they hamper

22

State of Nebraska v. State of Wyoming, 373 U.S. 541 (1963).

23

Report of the Krishna Water Disputes Tribunal, with Decision, Vol.1. 1973, 93, Central Water Commission, New

Delhi.


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the attainment of better living conditions for all”. This has been reiterated by this Hon’ble 24

Court on various occasions. v.

The Helsinki Rules on the Uses of the Waters of International Rivers, 1966 has repeatedly stressed upon the Equitable Utilisation Theory of water sharing and by adopting this, provided a status and authenticity to this theory. According to the theory, each basin state is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of water. One of the relevant factors to be b e considered while deciding what is reasonable and equitable is the extent of the drainage area in the territory of each basin state. The Narmada Water Dispute 25 and Krishna Water Dispute 26 , the respective Tribunals which adjudicated the matters applied the Equitable Utilisation Theory whilst deciding the issues.

vi.

In the present case, as the lives of the citizens of the State of Karak are at stake, along with the economical predicament of the State, and as due weightage has also been given to the environment, it is contended by the respondents that the clearance given by the Union Government must not be revoked.

24

Essar Oil Ltd. v. Halar Utkarsh Samiti, AIR 2004 SC 1834.

25

Report of the Narmada Water Disputes Tribunal, Vol. 1, 1978, 105, Central Water Commission, New Delhi.

26

Report of the Krishna Water Disputes Tribunal, with Decision, Vol.1. 1973, 93, Central Water Commission, New

Delhi.


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3. THE CONSTRUCTION OF THE DAM SHOULD NOT BE HALTED

A. THE PLIGHT OF THE PEOPLE AND THE NEED FOR WATER:

i.

27

The right to drinking water is an attribute of right to life. All people whatever their stage of development of their social and economic conditions have the right to access drinking water in quantum and of a quality equal to their basic needs.

28

But, the

inhabitants of Western Karak, due to drought have not been able to access their basic need for water. Water is important for life and the sanctity of human life is probably the most fundamental of the human social values.29 Loss of human life due to drought conditions cannot be tolerated when there is an alternative to prevent the same. ii.

Every individual has a right of access to sufficient, safe, acceptable, physically accessible, and affordable water to meet that individual’s vital human needs.30 Water is the basic need of survival of human beings and is a part of right to life and human rights as enshrined in Article 21 and can be served only by providing sources of water where there is none.31 Thus, the right to water is not only a negative right but is also a positive right.

32

Moreover, the right to live in any civilized society implies implies the right to food, 33

water, decent environment, education, medical care and shelter. All civil, political, social and cultural rights enshrined in UDHR and convention or under the Constitution 34

cannot be exercised without these basic human rights.

27

Attakoya Thangal v. Union of India, 1990 (1) KLT 580.

28

Part II, (a) of UN Water Conference, Resolution of UNO at Mar Del Plata,1997

29

R (Pretty) v. DPP, (2002) 1 All ER 1.

30

Article 17(1), Ch. V, Berlin Rules on Water Resources, 2004

31

Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751.

32

J.P.Unnikrishnan v. State of Andhra Pradesh, AIR 1993 SC 2178.

33

Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 2911.

34

State of Orissa v. Govt. of India, (2009) 5 SCC 492.


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iii.


Drinking is the most beneficial use of water like irrigation. So the right to use water for 35

domestic purposes would prevail over other needs.

36

Even in the NWP 2002, 2002 , the

prioritisation of water allocation are broadly stated as 1)Drinking water 2)Water for irrigation 3)Hydro power 4)Ecology 5)Agro Industries & Non-Agricultural industries 6)Navigation & other uses. Hence, at all costs the drinking water priorities must be given due consideration and the dam construction must not be halted. iv.

Article 21 is the repository of all important human rights essential for a person or a citizen and when there is a natural calamity, the State as guardian of people is obliged to provide support to the victim to save their lives.37 State of Karak has been hit by a severe drought which is a disaster according to Sec.2 (d) of the Disaster Management Act, 2005. In case of a drought where around 189 deaths have occurred, the State is obliged to take immediate steps to prevent any further loss of life as well as other critical calamities. To stop the construction of the dam would be to touch upon the rights of the people to access water for domestic purposes.

v.

People affected by drought suffer depletion of assets, loss of livelihoods, health and even life. Droughts are devastating as water supplies dry up, crops fail to grow, animals die and, malnutrition and ill health become widespread. The environmental effects of drought, including salinisation of soil and groundwater decline, increased pollution of 38

freshwater ecosystems and regional extinction of animal species occur. The Constitution envisaged establishment of a welfare State at the federal level as well as at the State level, and in a welfare State, the primary duty of the Government is to secure the welfare of the people. The Centre, the States and the local bodies (governance institutions) must ensure access to a minimum quantity of potable water for essential health and hygiene to all its 39

citizens, available within easy reach of the household. Article 21 imposes an obligation

35

Delhi Water Supply & Sewage Disposal Undertaking v. State of Haryana, AIR 1996 SC 2992.

36

3.1, ‘National Water Policy, 2002’, Ministry of Water Resources, India.

37

Bipinchand J.Diwan v. State of Gujarat, AIR 2002 Guj 9.

38

‘Disaster management in India’, New Delhi, 2011. Under the UNDP risk reduction scheme.

39

3.2,NWP, 2012


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on the State to safeguard the right to life of every person and preservation of human 40

rights is of paramount importance. vi.

When the people have faced a severe drought, it is the duty of the State to provide security and a hope of life for those who have survived the devastating drought. States shall progressively realise the right of access to water by providing water or the means for obtaining water when individuals are unable, through reasons beyond their control, to access water through their own efforts.41 Moreover, Articles 39, 47 & 48A by themselves and collectively cast a duty on the State to secure the health of the people, improve public health and protect and improve the environment.42 Social security has been assured under Article 47 which imposes a positive duty on the State to raise the standard of living 43

and to improve public health . Moreover, the States must cooperate in the management of waters to prevent, control, or mitigate droughts, having due regard to the interests of other basin States. The implementation of the AISHANI AISHANI JAL project is to provide for drinking water and making water available for agriculture as State of Karak is situated in the East zone

44

of Kano and is an ideal place for agriculture and an d the drought has

hampered the entire economic activity as well. Also, merely because the Directive Principles are not justiciable, this does not preclude the courts from taking note of the 45

spirit behind these principles. vii.

46

In a plethora of cases, right to livelihood has been included as a right to life. Livelihood necessarily includes the basic needs of man. Basic needs of man have traditionally been 47

accepted to be three- food, clothing and shelter. Water is also the basic need for the 48

survival of human beings. No one can survive without drinking water. That which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an 40

Paschim Banga Khet Mazdoor Samiti & Ors. v. State of West Bengal & Anr., AIR 1996 SC 2426.

41

Article 17(3) (d), Berlin Rules on Water Resources, 2004.

42

M.C.Mehta v. Union of India, AIR 2002 SC 1696.

43

LIC of India & Anr. v. Consumer Education Research Centre & Ors. Etc., AIR 1995 SC 1811.

44

¶ 3 of the Moot Proposition

45

Central Inland Water Transport Corporation v. Brojo Nath , AIR 1986 SC 1571.

46

Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

47

Shantistar Builders v. Narayan Khimalal Totame, AIR 1990 SC 630.

48



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NATIONAL MOOT COURT COMPETITION, 2016 49

integral component of the right to life . It is contended that if the construction of the dam is halted, the inhabitants of Western Karak will be placed far from accessing water for domestic purposes which could otherwise be provided by the State. viii.

The severe drought has caused agitation and bundh and a complete halt of the economy, 50

affecting the State’s revenue. Without the dam, the long term costs for people would be much greater and lack of an income source for future generations would put increasing pressure on the environment.51 ix.

Water is a gift of Nature. The primary use to which water is being put being drinking, it would be a mocking nature to force the people who live on the bank of a river to remain thirsty.52 River Aishani has a river basin of 34273 sq. kms in the State of Karak and flows 53

through the State of Mandeville to reach the Great Kano Sea. When there is a river flowing through the State, a part of the State cannot suffer because that river water is not 54

within its reach. Water should be made available to water short areas. A Natural river is not only meant for the people close by but it should be for the benefit of those who can 55

make use of it, being away from it or nearby. x.

All have equal rights in articles of food and water. The yoke of the chariot of life is placed equally on the shoulders of all. All should live together with harmony supporting suppo rting 56

one another like the spokes of a wheel of the chariot connecting its rim and the hub.

Hence, it is contended that water is the most basic necessity without which one cannot live and the construction of the dam must not be halted to secure the livelihood of the inhabitants of the State of Karak.

49

Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

50


51


52

Delhi Water Supply & Sewage Disposal Undertaking v. State of Haryana, AIR 1996 SC 2992.

53


54

3.5, NWP, Ministry of Water Resources, 2002

55


56

Kapila Hingorani v. State of Bihar, AIR 2003 SC 3724.


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B. NO ADVERSE ECOLOGICAL IMPACT:

i.

Dams play a vital role in providing irrigation for food security, domestic and industrial water supply, hydroelectric power and keeping flood waters back.

57

But the most

important use of a dam is to provide water for domestic purposes so so that the generation can survive. Water resources available to the country should be brought within the 58

category of utilisable resources to the maximum possible extent. Also, drinking water 59

needs of human beings should be the first charge on any available water. ii.

Any man-made activity will change the natural state of the environment. What is important is that the ecology must not be destroyed. The construction of the dam undoubtedly would result in the change in environment but it will not be correct to 60

presume that the construction of a dam will result in ecological disaster. Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy 61

and productive life in harmony with Nature. It is true that there was severe drought and the State has undergone a huge loss and there has been a complete halt on the economy. But, the State has to recover from the situation and develop. We cannot allow the dead 62

hand of the past to stifle the growth of the living present. It is made clear that the traditional concept of development and ecology are opposed to each other is no longer acceptable and that "Sustainable Development" is an acceptable principle in the present 63

day context. Therefore, the adherence to sustainable development principle is a sine a sine qua non for non for the maintenance of the symbiotic balance between the rights to environment and development.64 57


58

3.1, NWP, 2002.

59

ibid.

60


61

Principle 1-Earth Summit, Rio Declaration.

62

National Textile Worker’s Union v. P.R.Ramakrishnan, AIR 1983 SC 750.

63

Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715.

64

N.D.Jayal & Anr. v. Union of India & Ors., AIR 2004 SC 867.


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iii.

NATIONAL MOOT COURT COMPETITION, 2016 65

The right to development is a component of Article 21. This right to development 66

cannot be treated as a mere right to economic betterment. ‘Human development is a process of enlarging people’s choices. The most critical ones are to lead a long and 67

healthy life, to be educated and to enjoy a decent standard of living.’ While economic development should not be allowed to take place at the cost of ecology, at the same time the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice versa but there should be development while taking due care and ensuring the protection of environment.68 iv.

The right to development includes the whole spectrum of civil, cultural, economic and political and social process, for the peoples’ well-being and realisation of their full 69

potential. It is an integral part of human rights. Of course, construction of a dam or mega project is definitely an attempt to achieve the goal of wholesome development; 70

such works could very well be treated as integral component for development. v.

71

According to the Brundtland Report , Sustainable Development means Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs. But, only when the basic need for water of the present generation is met, can the future generations lead an adequate standard of life. Sustainable development means what type or extent of development can take place which 72

can be sustained by nature or ecology with or without mitigation. It is contended that the construction of the dam is in line with sustainable development and its construction must continue to meet the drinking water requirements of the people of State of Karak. vi.

Treating the principle of Sustainable Development as Fundamental concept of our law, it

65

Samata v. State of Andhra Pradesh, AIR 1997 SC 3297.

66

Madhu Kishore v. State of Bihar, AIR 1996 SC 1864.

67

UNDP, 1990 Report, p.10 (Human Development Defined).

68

Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446.

69

UN Declaration on the Right to Development, 1986

70


71

World Commission on Economic Development, Brundtland Report, 1987

72



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is opined that the development of the doctrine is indeed a welcome feature but while emphasising the need of ecological impact, a delicate balance between it and the necessity for development must be struck. Whereas it is not possible to ignore intergenerational interest, it is also not possible to ignore the dire need which the society 73

urgently requires. The State of Karak is in dire need of availing fresh water in order to recover from the drought and the farmers who are dependent on water for irrigation, as agriculture is their source of income, have been very aggrieved and also protested against 74

the previous Government leading to additional loss of life and property. vii.

The construction of the dam on the other hand would result in multifold improvements in the environment of the area.75 The drought prone areas would become fresh again and the flora and fauna of the wildlife sanctuary alongside the border of State of Karak too would be in a pleasant environment when water is made available. In the present case, the dam, 76

is not comparable to a nuclear establishment or to a polluting industry. Merely because there will be a change in the environment is no reason to presume that there will be ecological disaster, especially when a dam is constructed to satisfy the need of the public 77

for water. viii.

Change in the environment does not per se violate any right under Article 21 of the Constitution of Kano especially when ameliorative steps are taken not only to preserve 78

but to improve ecology and environment. In the present case, the main purpose for the construction of the dam itself is due to the scarcity of water and drought conditions. And also, as State of Karak has also made tourism and commerce the main source of income, the construction of the dam will enhance the living conditions of all. Hence, there is no violation of any right under Article 21 due to the construction of the AISHANI JAL project. ix.

Moreover, point 6.1 of the National Water Policy, 2002 mentions that ‘Water resource

73

Bombay Dyeing & Manufacturing Co. Ltd. v. Bombay Environmental Action Group, (2006) 3 SCC 434.

74

¶ 7 of the Moot Proposition.

75


76


77

ibid.

78

ibid.


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development projects should as far as possible be planned and developed as multipurpose projects. Provision for drinking water should be a primary consideration.’ Therefore, the construction of the dam, will bear provision for drinking water on one hand and help in the sustainable use of the renewable energy that is water, for other purposes as well on 79

the other, which has also been made a National Policy in the Union of Kano. x.

Therefore, it is contended that the construction of the dam must not be halted on the grounds that there is no adverse environmental damage and also that water for domestic purposes is a dire need for the inhabitants of State of Karak.

79

¶ 2 of the Moot Proposition.


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PRAYER

Wherefore it is humbly prayed, in the light of issues raised, arguments advanced and authorities cited, that this Hon’ble Court may be pleased to: 1. Dismiss the present petition as not maintainable. 2. Uphold the in principle clearance given for the implementation of the AISHANI JAL project. 3. Allow for the continuation of the dam da m construction.

And pass any other Order or Direction that it may deem fit in the light of Equity, Justice and Good Conscience for which the counsel may forever pray.

Sd/(Counsel for Respondent)


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APPENDIX

ABBREVIATIONS USED:

(P) Ltd.

Private Limited

¶

Paragraph

¶¶

Paragraphs

&

And

AIR

All India Reporter

Art.

Article

Ch.

Chapter

Co.

Company

Doc.

Document

Ed.

Edition

ER

England Reporter

Guj.

Gujarat

ISRWD Act

Inter State River Water Dispute Act

NWP

National Water Policy

Ors.

Others

p.

Page no.

pp.

Pages


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SC

Supreme Court

SCC

Supreme Court Cases

Sec.

Section

Supp.

Supplementary

TMC

Thousand Million Cubic

UN

United Nations

UNDP

United Nations Development Programme

UNO

United Nations Organisation

Vol.

Volume

WCED

World Commission on Economic Development


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EXHIBITS

CONSTITUTIONAL PROVISIONS

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

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India (2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

Art.262: Adjudication of disputes relating to waters of inter State rivers or river valleys

(1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter State river or river valley (2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause ( 1 ).

Art.131: Original jurisdiction of the Supreme Court

Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute (a) between the Government of India and one or more States; or (b) between the Government of India and any State or States on one side and one or more other States on the other; or (c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said


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jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagements, and or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.

Art.32: Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and (2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

Art.21: Protection of life and personal liberty

No person shall be deprived of his life or personal liberty except according to procedure established by law.

Art.39: Certain principles of policy to be followed by the State:

The State shall, in particular, direct its policy towards securing (a) that the citizens, men and women equally, have the right to an adequate means to livelihood; (b) that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good; (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; (d) that there is equal pay for equal work for both men and women;


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(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

Art.47: Duty of the State to raise the level of nutrition and the standard of living and to improve

public health The State shall, regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

Art.48A: Protection and improvement of environment e nvironment and safeguarding of forests and wild life

The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country

Seventh Schedule,List I-entry 56: 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.

ISRWD Act,1956

Sec.2: Definitions. In this Act, unless the context otherwise requires,--

(a) " prescribed" means prescribed by rules made under this Act; (b) " Tribunal" means a Water Disputes Tribunal con stituted under section 4; (c) " water dispute" means any dispute or difference between two or more State Governments with respect to- MEMORIAL ON BEHALF OF RES PONDENT

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(i) the use, distribution or control of the waters of, or in, any inter- State river or river valley; or (ii) the interpretation of the terms of any agreement relating to the use, distribution or control of such waters or the implementation of such agreement; or (iii) the levy of any water rate in contravention of the prohibition contained in section 7.

Sec.3: Complaints by State Governments as to water disputes.

If it appears to the Government of any State that a water dispute with the Government of another State has arisen or is likely to arise by reason of the fact that the interests of the State, or of any of the inhabitants thereof, in the waters of an inter- State river or river valley have been, or are likely to be, affected prejudicially by-(a) any executive action or legislation taken or passed, or proposed to be taken or passed, by the other State; or (b) the failure of the other State or any authority therein to exercise any of their powers with respect to the use, distribution or control of such waters; or (c) the failure of the other State to implement the terms of any agreement relating to the use, distribution or control of such waters, the State Government may, in such form and manner as may be prescribed, request the Central Government to refer the water dispute to a Tribunal for adjudication.

Sec.11: Bar of jurisdiction of Supreme Court and other courts.

Notwithstanding anything contained in any other law, neither the Supreme Court nor any other court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act.

DISASTER MANAGEMENT ACT, 2005

Sec.2 (d): "disaster" means a catastrophe, mishap, calamity or grave occurrence in any area,

arising from natural or man made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area. MEMORIAL ON BEHALF OF RES PONDENT

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NATIONAL WATER POLICY, 2012

3.2 The Centre, the States S tates and the local bodies (governance institutions) must ensure access to a minimum quantity of potable water for essential health and hygiene to all its citizens, available within easy reach of the household.

NATIONAL WATER POLICY, 2002

3.1 Water resources available to the country should be brought within the category of utilisable resources to the maximum possible extent.

3.5 Water should be made available to water short areas by transfer from other areas including transfers from one river basin to another, based on a national perspective, after taking into account the requirements of the areas / basins

INTERNATIONAL AUTHORITIES

BRUNDTLAND REPORT, OUR COMMON FUTURE,1987:

SUSTAINABLE DEVELOPMENT: “Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs".

UNDP REPORT,1990,P.10 :

‘Human development is a process of enlarging people’s choices. The most critical ones are to lead a long and healthy life, to be educated and to enjoy a decent standard of living.’


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EARTH SUMMIT, RIO DECLARATION,1992:

Principle 1 Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature. Principle 3 The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. Principle 4 In order to achieve sustainable development, d evelopment, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. Principle 9 States should cooperate to strengthen endogenous capacity-building for sustainable development by improving scientific understanding through exchanges of scientific and technological knowledge, and by enhancing the development, adaptation, diffusion and transfer of technologies, including new and innovative technologies. UN DECLARATION ON THE RIGHT TO DEVELOPMENT, 1986:

Article 1

1. The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.


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2. The human right to development also implies the full realization of the right of peoples to selfdetermination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.

BERLIN RULES ON WATER RESOURCES,2004:

Article 17 The Right of Access to Water 1. Every individual has a right of access to sufficient, safe, acceptable, physically a ccessible, and affordable water to meet that individual’s vital human needs. 2. States shall ensure the implementation of the right of access to water on a non discriminatory basis. 3. States shall progressively realize the right of access to water by: a. Refraining from interfering directly or indirectly with the enjoyment of the right; b. Preventing third parties from interfering with the enjoyment of the right; c. Taking measures to facilitate individuals access to wa ter, such as defining and enforcing appropriate legal rights of access to and use of water; and d. Providing water or the means for obtaining water when individuals are unable, through reasons beyond their control, to access water through their own efforts. 4. States shall monitor and review periodically, through a participatory and transparent process, the realization of the right of access to water.


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BMS Respondent

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