Memorial on Behalf of Respondents

1

Team Code 15

IN THE HON’BLE SUPREME COURT OF SOLETI

PUBLIC INTEREST LITIGATION NO:

/2015

[UNDER ART. 32 OF THE CONSTITUTION OF SOLETI]

--IN THE MATTER OF--

ENVIRONMENT CONCERNED AGENCY AND ANR.

……….…………PETITIONERS

VERSUS

UNION OF SOLETI AND NATURAL GAS AND OIL CORP.

....……………RESPONDENTS

NCU LAW SCHOOL MOOT COURT COMPETITION, 2015 III EDITION

MEMORANDUM ON BEHALF OF THE RESPONDENTS -DRAWN AND FILED BY THE COUNSEL FOR THE RESPONDENTS-

2

TABLE OF CONTENTS        

TABLE OF CONTENTS………………………………………………………………...…2 TABLE OF ABBREVIATIONS…………………………………………………………….3 INDEX OF AUTHORITIES………………………………………………………………...4 STATEMENT OF JURISDICTION…………………………………………………………..9 STATEMENT OF FACTS………………………………………………………………….10 ISSUES OF CONSIDERATION……………………………………………………….……12 SUMMARY OF ARGUMENTS…………………………………………………………….13 WRITTEN SUBMISSIONS………………………………………………………………..14

1. Whether the PIL filed by Environment Concerned Agency (ECA) is maintainable or not?...................................................................................................14 1.1.) The petitioner does not have a locus standi……………………………………………14 1.2.) There was no violation of fundamental rights of the indigenous people (Aryans) of Gaur………………………………………………………………………………………..16 1.3.) There existed alternative remedy and the petitioner is required to exhaust the local remedies available……………………………………………………………………….17 1.4.). The doctrine of exhaustion of alternate remedies is no abuse to article 32………17

2. Whether the government of Soleti is liable for environment degradation and is obliged to pay compensation to the Aryans?..............................................................20 2.1 ) The govt. is obliged to observe the doctrine of Harmonious Construction enshrined under the Constitution of Soleti……………………………………………………………..20 2.2 ) The mining project does not violate the Fundamental Rights of Aryans……………22 2.3 ) The Mining Project does not violate the right to wholesome environment………….25 2.4 ) The Mining Project does not violate the right to health……………………………….27 2.5 ) The Mining Project does not violate the right to livelihood…………………………..28 2.6 ) The Mining Project does not violate any religious rights……………………………..29 2.7 ) The Mining Project does not violate the right to information………………………...30 2.8 ) The forest clearance is valid……………………………………………………………….31 2.9 ) The environmental clearance is valid…………………………………………………….32  PRAYER……………………………………………………………………………35


3 TABLE OF ABBREVIATION ¶and ¶¶……………………………………………………………... Paragraph and Paragraphs A.P. ………………………………………………………………... Andhra Pradesh A.C………………………………………………………………… Appellate Cases AIR………………………………………………………………… All India Reporter Co. ………………………………………………………………… Company Corp………………………………………………………………… Corporation Hon’ble………………………………………………………………… Honourable MANU……………………………………………………………… Manupatra NCT ………………………………………………………………. National Capital Territory Ors………………………………………………………………….. Others PP…………………………………………………………………... Page no. or Pages SC…………………………………………………………………... Supreme Court SCC………………………………………………………………… Supreme Court Cases Sd/- ………………………………………………………………… Signed v. …………………………………………………………………… Versus SCR ………………………………………………………………… Supreme Court Reporter NGAO…………………………………………………………….....Natural Oil and Gas Corp ECA………………………………………………………….Environment Concerned Agency PSU……………………………………………………………........Public Sector Undertaking NGT………………………………………………………………….National Green Tribunal FCA………………………………………………………….Forest Conservation Act (1980) EC……………………………………………………………Environment Committee EIA…………………………………………………………..Environment Impact Assessment PESA……………………………….............. Panchayats (Extension to Scheduled Areas)


4 INDEX OF AUTHORITIES STATUTES REFERRED 1. 2. 3. 4.

THE CONSTITUTION OF INDIA, 1950. ENVIRONMENT PROTECTION ACT, 1986, (29 OF 1986). WILDLIFE (PROTECTION) ACT, 1972, (53 0F 1972). MINES AND MINERALS (DEVELOPMENT AND REGULATION) ACT,

1957, (10 OF 2015). 5. NATIONAL GREEN TRIBUNAL ACT, 2010, (19 OF 2010). 6. THE SCHEDULE TRIBES AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF FOREST RIGHTS) ACT, 2006, ACT OF 7.

2007. BIOLOGICAL DIVERSITY ACT, 2002.

LEXICONS 1. A. G. Bryan, ‘Black’s Law Dictionary’, 9th Ed., 2009, West Group. 2. Daniel Greenberg, ‘Strouds Judicial Dictionary of Words and Phrases’, 7th Ed. Sweet and Maxwell Co. 3. P. Ramanatha., ‘Concise Law Dictionary’, 3rd Ed., Rep. 2006, Wadhwa, Nagpur. ELECTRONIC MEDIUM 1. 2. 3. 4.

www.manupatra.com www.scconline.com www.jstor.com www.westlaw.in


5 LIST OF BOOKS REFERRED 1. M.P. JAIN, INDIAN CONSTITUTIONAL LAW(7th ed., Lexis Nexis Butterworth 2014 2. P. SESHAGIRI RAO, LAW OF MINES AND MINERALS (18th ed., Asia Law House 2012) 3. P. LEELAKRISHNAN, ENVIRONMENTAL LAW CASE BOOK (2nd ed. Lexis Nexis Butterworth 2006) 4. T S DOABIA, J., ENVIRONMENTAL & POLLUTION LAWS IN INDIA (2nd Lexis Nexis Butterworth 2010) 5. P. S. A. PILLAI’S, CRIMINAL LAW (11th ed., Lexis Nexis Butterworth 2012) 6. G.P. SINGH, J., PRINCIPLES OF ADMINISTRATIVE LAW (6th ed., Lexis Nexis Butterworth 2012)

CONVENTIONS 1. 2. 3. 4. 5. 6.

Aarhus convention, 1998 Cartagena protocol on biosafety to the convention of biological diversity, 2000. Convention of international trade in endangered species of wild fauna and flora, 1975. International union for conservation of nature red book, 2015. Rio declaration on environment and development, 1992 Stockholm declaration of the United Nations conference on the human environment,

principle, 1972. 7. The convention on international trade in endangered species of wild fauna and flora (Sites), 2015. 8. United Nation declaration of human rights, 1948. 9. United Nations declaration on the right of indigenous people, 2007.

ARTICLES 1. PROF. GRUDIP SINGH & AMRITA, RMLNLUJ, “SUSTAINABLE DEVELOPMENT: INTERNATIONAL AND NATIONAL PERSPECTIVE”, 2008, P.35 RULES 1. Environment Impact Assessment Notification 2006, Notification S.O.1533, Ministry of Environment and Forests, dated September 14, 2006.


6

CASES REFERRED 1. A.P. Pollution Control Board v. M.V. Nayudu II , 2 SCC 62, (SC 2001). 2. A.P. Pollution Control Board v. M.V. Nayudu, 2 SCC 718, (1999) 3. A.S. Narayana Deeshitalyu v. State of Andhra Pradesh, AIR 1765,( SC 1996). 4. Acharya Maharajshri Narendera Prasadji Anand Prasadji Maharaj and Others v. State of Gujarat & Others, AIR 2098, (SC 1974) 5. Acharya Maharajshri Narendera Prasadji Anand Prasadji Maharaj v. State of Gujarat, AIR 2098,(SC 1974). 6. Ahmedabad Mun. Corp. V. Nawabkhan Gulab Khan, AIR 152, (SC 1997) 7. Bangalore v. State of Mysore AIR 2042, (SC 1970). 8. Air India Statutory Crop. V. United Labour Uninon, AIR 645, (SC 1997). 9. Amritlal Nathubhai Shah v. Union Government of India, AIR 2591, (SC 1976). 10. BALCO Employees Union v. Union of India ,2 SCC 333, (2002). 11. Netai Bag v. State of West Bengal, 8 12. BALCO Employees’ Union (Resd.) v. Union of India ,AIR 350, (SC 2009). 13. Banwasi Sewa Ashram v. State of Uttar Pradesh, AIR 374, (SC 1987). 14. Central Areca Nut & Cocoa Marketing & Processing Coop. Ltd. v. State of Karnataka ,8 SCC 31, (1997); Avishek Goenka v. Union of India 5 SCC 15. Chameli Singh v. State of Uttar Pradesh, AIR 1051, (SC 1996). 16. Chewang Pintso Bhutia v. State of Sikkim, W.P.(C) No. 22/2012. 17. Church Of God (Full Gospel) v. K.K.R. Majestic Colony Welfare, AIR 2773,(SC 2000 ); 18. Commissioner H.R.E v. L.T. Swamiar, AIR 282, (SC 1954) 19. Commissioner Of Police v. Acharya J. Avadhuta and Anr., AIR 2004 SC 2984 20. D.S. Nakara v. Union of India, AIR 130, (SC 1983). 21. Dahanu Taluka Environment Protection Group v.Bombay Suburban Electricity Supply Company, 2 22. Daryao v. The State of Uttar Pradesh, AIR 1457, (SC 1961) 23. G. Sundarrajan vs. Union of India, 6 SCC 620, (2013). 24. G. Sundarrajan vs. Union of India, 6 SCC 620, (2013).


7 25. Goa Foundation v. Union of India, 6 SCC 590, (2014). 26. Golakh Nath v. State of Punjab, AIR 1643, (SC 1967). 27. Indian Council for Enviro- Legal Action vs. Union of India and Ors. X, 6 SCC 281, (SC 2002) 28. Indian Council For Enviro-Legal Action v. Union of India, 5 SCC 261, (1996 SC). 29. Indian Council for Environmental-Legal Action v. Union of India, 3 SCC 212,( SC 1996) 30. Janata Dal v. H.S. Chowdhary AIR 892, ( SC 1993). 31. Kanubhai Brahmbhatt v. State of Gujarat, AIR 1159, (SC 1987). 32. Kasturi Lal Lakshmi Reddy v. State of Jammu & Kashmir, AIR 1992, (SC 1980) 33. M.C. Mehta v. Union of India (mining in Aravalli Hills case), 6 SCC 142, (2009). 34. M.C. Mehta v. Union of India , (2) SCC 176, (SC 1986) 35. Mathew Lukose v. Kerala State Pollution Control Board, 2 KLT 686, (1990). 36. Minerva Mills v. Union of India, AIR 130, (SC 1983). 37. Murlidhar Dayandeo kesekar v. Vishwanath Pandu Borde, 2 SCC 549, (1995 38. N .D. Jayal v. Union of India, 9 SCC 362, (2004 SC). 39. Narmada Bachao Andolan v. Union of India 10 SCC 664, (2000 SC). 40. Narmada Bachao Andolan v. Union of India, AIR 375,(SC 2000). 41. Olega Tellis v. Bombay Municipal Corp. AIR 1870,( SC 1996 42. Orissa Mining Corporation v. Ministry of Environment and Forests, 6 SCC 476, (2013). 43. People United for better Living in Calcutta v. State of West Bengal, AIR 215, (Cal. HC 1993). 44. PN Kumar v. Municipal Corp of Delhi, SCR (1) 732, (1988 SC) 45. Prem Chand Garg v. Excise Commissioner, AIR 996, (SC 1963). 46. Rambhau Patil v. Maharashtra State Road Development Corporation ,(1) Bom CR 76, (2002) 47. Rameshwar Prasad v. Union of India, 3 SCC 1, (1994). 48. Ramjas Foundation vs. Union of India, AIR 852, ( SC 1993). 49. Ramjilal v. Income Tax Officer, AIR 97, (SC 1951). 50. R. Chandrappa v. State of Karnataka 6 SCC 309, (SC 1995) 51. Reliance Infocom Ltd. v. Chemanchery Grama Panchayat, AIR 33,(Ker 2007) 52. Rural Litigation Entitlement Kendra v. State of Uttar Pradesh, AIR 652, SC 1985. 53. Samatha v. State of Andhra Pradesh, Civil Appeal 4601-02 of 1997.


8 54. Sardar Syedna Taher Saifuddin v. State Of Bombay, AIR 853, (SC 1962) 55. SCC 262, (2000); G. Sundarrajan vs. Union of India,6 SCC 620, (2013). 56. SCC 538, (1991) 57. Secretary, Govt. of India v. Alka Subhash Gadia, 1990 SCR, Supl. (3) 583; Avinash Chand Gupta v. State of 58. State of Himachal Pradesh v. Student’s parent, Medical College, Shimla, AIR 910 , ( SC 1985). 59. State of Karnataka v. Raghunath Reddy, AIR 215,( SC 1978). 60. State of T.N., 2 SCC 691, (1994). 61. Steel Authority of India Ltd. v. National Union Welfare Works, 7 SCC 1, (2007 SC ). 62. T.N. Godavarman Thirumalpad (through K.M. Chinnappa) v. Union of India, (10) SCC 606, (2002) 63. T.N. Godavarman Thirumulpad v. Ashok Khot ,AIR 2007, (SC 2006) 64. Tehri Bandh Virodhi Sangarsh Samiti v. State of Uttar Pradesh,1 SCC 44 ,(1992) Supp.. 65. University of Mysore v. C. D. Govinda Rao AIR 491, (SC 1965) 66. Uttar Pradesh, 2 SCC 726, (2004 SC); Union of India v. Paul Manickam, AIR 4622, (SC 2003) 67. Valsamma Paul v. Cochin University, AIR 1011, (SC 1996). 68. Villianur Iyarkkai Padukappu Maiyam v. Union of India & Ors., INSC 1077, (2009); Premium Granites vs. 69. Woon Tankan and Seven Others v. Asian Rare Earth Sdn. Ehd. CLJ 2 207 (Malaysia)


9 STATEMENT OF JURISDICTION

It is most humbly submitted that the Respondents are appearing before this Hon’ble Supreme Court as the petitioners have invoked the original writ jurisdiction of the Court under Article 321 of the Constitution of Soleti on grounds of violation of fundamental rights by the Government of Soleti. The respondents most humbly and respectfully submit before the jurisdiction of the present court and accept that it has the power and authority to preside over the present case.

1 Article 32 in The Constitution Of India, 195032. 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 clauses (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.


10 STATEMENT OF FACTS  FACTUAL BACKDROP I.

The Republic of Soleti which is located in South Asia, is part of many international treaties, such as UDHR, ICESCR and UNFCCC and is also a ratifier of the Kyoto Protocol. It obliges the country to follow strictly the various environment norms.

II.

Recently, a new govt. is formed in the country, National Liberation Alliance (NLA). Under the leader of Prime Minister Mr. Todi it initiated a national program. The program is named “Create in Soleti”. The program seeks to build infrastructure which will facilitate the manufacturing sector thereby revolutionize the economy and make the National economy independent.

III.

The state of Gaur is blessed with great scenic beauty. It has Aram Mountains followed by the Dhir forest. A river by the name Suhu passes through the central area of Gaur. Due its topography it rose as one of the better tourist destinations in the country. Aryans are the indigenous people living in the forests of Dhir.

IV.

Certain parts of the Dhir forest was declared as reserved area.

V.

Under the Create Soleti regime an expert committee was appointed to check the sectors to improve industrialization.

VI.

The expert committee found that, a mineral “Sona” is present in the soil of northwestern region of Gaur. The mineral is considered to be essential element in the processing of mineral oil.

VII.

Mineral oil has been part of the extensive export done by Soleti. Depending upon the grave use such a product, the economy of Soleti would be highly benifited if such product would be manufactured in the country itself.

VIII.

The follow-up of the reports were done and it was found that, Sona was prevalent in major portions of Dhir forest and the mountains.

IX.

The govt. decided to do the exploration and set up a manufacturing plant there. The work was delegated to Natural Gas and Oil Corp. (NGAO), a Public Sector Undertaking.


11 X.

The construction began in April’ 14. The people after some time complained about the high noise levels and an outbreak of respiratory problems.

XI.

An NGO by the Environment Concerned Agency (ECA) made assessment of the situation suo motu. Their report declared that, there is high emission of greenhouse gases and there is also a climate change in the area. Further, it said that, the number of migratory birds has decreased and the confrontation between humans and wildlife has grown many folds.

XII.

The report also highlighted that tourism has decreased because of such practice.

XIII.

In the month of May 2015, after the most of the construction was complete, a flood broke out in the area which had its origin in the Fabian Sea. It affected the lives of the people and the construction site as well. A further ill effect of the flood was noted within a month of the disaster.

 PROCEDURAL BACKDROP I.

There was huge protest against the project; therefore, the Wildlife Advisory Board issued orders to close the manufacturing plant of NGAO citing violations of various Legislations of Soleti by the end of June 2015.

II.

NGAO subsequently appealed to the Hon’ble High Court. The Hon’ble court put aside the orders of the advisory board thereby allowing the manufacturing plant to function in usual manner.

III.

Finally, the ECA and leader of the Aryans together filed a PIL in the Supreme Court of Soleti, alleging the violation of fundamental rights against the Union of Soleti, seeking compensation for the alleged violation.


12 ISSUES FOR CONSIDERATION

ISSUE 1: WHETHER THE PIL FILED BY ENVIRONMENT CONCERNED AGENCY (ECA) IS MAINTAINABLE OR NOT?

ISSUE 2: WHETHER THE GOVERNMENT OF SOLETI IS LIABLE FOR ENVIRONMENT DEGRADATION AND IS OBLIGED TO PAY COMPENSATION TO THE ARYANS?


13 SUMMARY OF ARGUMENTS I.

Whether the PIL filed by Environment Concerned Agency (ECA) is maintainable or not?

It is humbly submitted that in a Writ Petition, Petitioners should have a legal standing. As the Supreme Court of Soleti has observed, “The requirement of locus standi of a party to litigation is mandatory; because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold.” Therefore, it becomes imperative to establish that the interest of the People which the Petitioner in the instant case is espousing, have legally enforceable rights, recognized under the Constitution of Soleti. The interest of the nation is placed on a higher pedestal vis-à-vis international obligations. The instant case involves issues having international and national aspects, which renders it a policy decision. In such matters with no legal standing interference in the policy decision is not warranted. Therefore, the Writ Petition was not maintainable before the Hon’ble Supreme Court. II.

Whether the government of Soleti is liable for environment degradation and is obliged to pay compensation to the Aryans?

It is humbly submitted before the Hon’ble court that, it only appears that the govt. of Soleti is responsible for environmental degradation, even if it is considered that the govt. is responsible for environment degradation, it has restricted it to a minimal extent and the degradation caused was out of necessity and is completely valid as per the facts and circumstances. It was absolutely necessary to take such a step as it will make Soleti an economically independent state. This step is of absolute importance to the public policy, and the degradation caused will be made good through the course of time. Further, the govt. has done nothing wrong in going ahead with the mining project; hence it is not obliged to pay compensation to the Aryans. The Project does not violate the right to shelter since the Petitioner has not established it and in any case, there is a comprehensive Rehabilitation package in this case. The right to wholesome environment, the right to health or the right to livelihood under Art. 21. Further, there is no violation of any religious right or the right to information. On the contrary, the Respondents submit that the Mining Project aids Art. 21 of the Tribal Communities and the public at large.


14 WRITTEN SUBMISSIONS I.

Whether the PIL filed by Environment Concerned Agency (ECA) is maintainable or not?

It is humbly submitted before the Hon’ble court that, the present petition filed by the NGO, ECA is not maintainable; because the Petitioner should have a locus standi first. This “Legal standing” has a quintessential connotation and it is a condition precedent for the maintainability of a Writ Petition before the Court. Therefore, it becomes imperative to establish that the interest of the People which the petitioner is espousing, have legally enforceable rights, recognized under the Constitution of Soleti. The interest of the nation is placed on a higher pedestal vis-à-vis international obligations. The instant case involves issues having international and national aspects, which renders it a policy decision. In such matters with no legal standing interference in the policy decision is not warranted. Therefore, the PIL is not maintainable before the Hon’ble Court. The following submissions will substantiate the same: 1.1.) The petitioner does not have a locus standi 1.2.) There was no violation of fundamental rights of the indigenous people (Aryans) of Gaur 1.3.) There existed alternative remedy and the petitioner is required to exhaust the local remedies available. 1.4.). The doctrine of exhaustion of alternate remedies is no abuse to article 32. 1.1.

The petitioner does not have a locus standi

It is humbly submitted that, the petitioner in the present does not a have locus standi. The principle of equity enunciates that, “A writ petitioner who comes to the Court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective.”2

2 Ramjas Foundation vs. Union of India, AIR 1993 SC 852


15 In the case of Janata Dal v. H.S. Chowdhary3 the Hon’ble Supreme Court observed that “….The strict of rule of locus standi to private litigation is relaxed and a broad rule is evolved which gives the right of locus standi to any member of the public acting bona fide and having sufficient interest in instating an action for redressal of public wrong or public injury, but who is not a mere busy body or a meddlesome interloper; since the dominant object of PIL is to ensure observance of the provisions of the constitution or the law which can be best achieved to advance the cause of community or disadvantage groups and individuals or public interest by permitting any person, having no personal gain or private motivation or any other oblique consideration but acting bona fide and having sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery in motion like action popularis of Roman law whereby any citizen could bring such an action in respect of a public delict” In the present matter the Govt. is highly suspicious about what appears to be a bona fide act by NGO, i.e. filing of the present petition because they are relying heavily on the report prepared by themselves4. The govt. can in no case be bound by such reports unless it has either authorized an agency to do the same or the Hon’ble has directed any agency to do the same. The Hon’ble Supreme Court has cautioned that public interest litigation is a weapon which has to be used with great care and circumspection and that the judiciary has to be careful to see that under the guise of redressing a public grievance it does not encroach upon the sphere reserved by the constitution to the executive and the legislature5 Also in the case of T.N. Godavarman Thirumulpad v. Ashok Khot6, this very court observed that, “Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives, and try to bargain for a good deal as well as to enrich themselves. Often they are actuated by a desire to win notoriety or cheap 3 AIR 1993 SC 892 4 Moot Compromis ¶ 10 5 State of Himachal Pradesh v. Student’s parent, Medical College, Shimla, AIR 1985 SC 910 6 AIR 2006 SC 2007


16 popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.” It was held in the case Narmada Bachao Andolan v. Union of India7 that when two or more views are possible and after considering them the Government takes a policy decision, it is then not the function of the court to go into the matter afresh. Similarly in the present matter, the union govt. has decided to go ahead with the mining project to extract SONA, which is essential element in the manufacturing process of Mineral Oils8. The govt. went ahead with the extraction only after the EIA report was given the NGAO9. Therefore, it is a policy decision hence, the Hon’ble court must not go into the afresh. 1.2.

There was no violation of fundamental rights of the indigenous people (Aryans) of Gaur.

The jurisdiction under Art. 32 can be invoked only when Fundamental Rights are violated. It has been held that if a right, other than a fundamental right is claimed to be violated then such questions can be addressed only in the appropriate proceedings and not on an application under Art. 32.10 In the case of BALCO Employees’ Union (Resd.) v. Union of India11, the court has again reminded that the only ground on which a person can maintain a PIL is where there has been an element of violation of Art 21, on the human rights or where the litigation has been initiated for the benefit of the poor and the underprivileged who are unable to come to the court due to some disadvantage. As per the facts of the case it is well established that Aryans are Tribal people12 but it is nowhere mentioned that, they either poor or underprivileged. Indeed, there were certain environment issues but they were temporary and were aimed at a greater objective which ultimately will benefit the Aryans only, hence there is no violation on article 21 or any other fundamental right guaranteed by the Constitution of Soleti 7 (2000) 10 SCC 664 8 Moot Compromis ¶6 9 Clarification no. 6 10 Ramjilal v. Income Tax Officer, AIR 1951 SC 97 11 AIR 2009 SC 350 12 Clarification no. 3


17

In the instant case, it is submitted no fundamental rights of the Petitioner or the Tribal Communities have been violated; therefore, this petition must fail 1.3.

There existed alternative remedy and the petitioner is required to exhaust those local remedies.

It is humbly submitted that Art. 32 is not an absolute right and are subject to the self-imposed restraints evolved by the judiciary. It has been held that since Art. 32 confers “extraordinary” jurisdiction, the same must be used sparingly and in circumstances where no alternate efficacious remedy is available.13 The reason for this is two-fold: first, to reduce the increasing pendency of cases14 and second, to inspire faith in the hierarchy of Courts and the institution as a whole.15 Therefore, the Petitioner is required to approach the High Court or the National Green Tribunal before approaching the Supreme Court. 1.4.

The doctrine of exhaustion of alternate remedies is no abuse to Art. 32.

The Petitioner may contend that the rule of exhaustion of local remedies is unconstitutional and violative of the guarantee in Art. 32(1). However, it is submitted that the right under Art. 32(1) is not so absolute that no rules of procedure apply to it. Art. 32(1) confers a right to move the SC by "appropriate proceedings". “Appropriate proceedings” interpreted to mean “procedure relating to form, conditions of lodgment of petitions, and compliance with a reasonable directions”16. Indeed, procedural factors such as res judicata17, delay in filing the petition and parallel proceedings18 in another Court are considered before entertaining the appropriateness of a particular proceeding. It is submitted that the rule of

13 Secretary, Govt. of India v. Alka Subhash Gadia, 1990 SCR, Supl. (3) 583; Avinash Chand Gupta v. State of Uttar Pradesh, (2004) 2 SCC 726; Union of India v. Paul Manickam, AIR 2003 SC 4622

14 PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732 15 Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159. 16 Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996 17 Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457 18 M.P Jain Indian Constitutional Law


18 exhaustion of local remedies is another such procedural guideline and does not violate the right under Art. 32. It is further submitted that there are two alternative efficacious remedies that are available before the Petitioner in the instant case. First, to approach the High Court under Art. 226 and second, to approach the National Green Tribunal. a) The Petitioner may approach the High Court under Art. 226 The power of High Court under Art. 226 is wider than the powers of this Court under Art. 32 of the Constitution.19Further, the reliefs prayed for can be granted by High Court. This Hon’ble Court in ICELO held that in cases concerning environment, specifically, the High Courts would be in a better position to ascertain local conditions and facts and therefore, for proper monitoring, they must be preferred.20 Further, in another case, concerning the safety of development project,21 this Hon'ble Court transferred the matter to the High Court of Uttaranchal as it was expedient. The issues in the instant case are similar and require knowledge and ability to assess local conditions. Therefore, it is submitted that remedy available under Art. 226 is not just an alternative but also, a preferable remedy. b) The Petitioner may approach the National Green Tribunal Alternatively, the Petitioner also has the option of approaching the National Green Tribunal. It is submitted that the NGT has been expressly established to deal with questions related to “enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.”22

19 PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732 20 Indian Council For Enviro-Legal Action v. Union of India, (1996)5 SCC 261 21 N .D. Jayal v. Union of India, (2004) 9 SCC 362 22 Preamble, National Green Tribunal Act (2010)


19 Therefore, any submission that the NGT cannot enforce rights or protect them adequately is erroneous. Moreover, the NGT is specially equipped to evaluate scientific claims apart from regular civil claims due to the presence of scientific experts on the bench. With due respect to this Hon’ble Court, it is therefore submitted that the NGT is better situated than the SC to evaluate concerns about the health and environmental consequences of the Mining Project.23 In fact, the Supreme Court when faced with similar cases, in the past has lamented the lack of separate, multi-faceted environmental courts equipped with both judicial and scientific inputs.24 Thus, the Supreme Court itself has recognized the value of the NGT to deal with such cases. Further, in various cases in the past, the SC has had to refer scientific questions to special committees and expert bodies, thus, delaying the resolution of dispute. It is submitted that an expeditious resolution of the dispute is in the best interests of both parties. While the petitioners would like to seek certainty with regard to their homes, livelihood and environment, the Respondents would like to seek certainty about their investment at the earliest. Mining being a capital intensive process, the Respondents submit that they will face enormous financial hardship if the case is not resolved quickly as they have to make interest payments on loans. The Act provides that the NGT shall endeavor to adjudicate upon the dispute within six months from the date of filing of application or appeal.25Therefore, for expeditious disposal of this case, NGT must be preferred. Assuming arguendo, this petition is admitted by the Hon’ble Court, it will defeat the object of the NGT Act to create a specialized tribunal for environmental cases. The instant case will be used as a precedent to bypass the jurisdiction of the NGT to directly approach the Supreme Court. This should be avoided. In any case, the NGT Act reserves the right of the Petitioner to challenge an order passed by the NGT in the Supreme Court.26 23 SAIRAM BHAT, NATURAL RESOURCES CONSERVATION LAW 63 (2010) 24 .C. Mehta v. Union of India 1986 (2) SCC 176; Indian Council for Environmental-Legal Action v. Union of India, 1996 (3) SCC 212; A.P. Pollution Control Board v. M.V. Nayudu 1999 (2) SCC 718; A.P. Pollution Control Board v. M.V. Nayudu II 2001 (2) SCC 62

25 National Green Tribunal Act § 18(3) (2010) 26National Green Tribunal Act § 22 (2010)


20 In light of the foregoing, the Respondents request the Hon‟ble Court dismiss the petition.

II.

Whether the government of Soleti is liable for environment degradation and is obliged to pay compensation to the Aryans?

It is humbly submitted before the Hon’ble court that, it only appears that the govt. of Soleti is responsible for environmental degradation, even if it is considered that the govt. is responsible for environment degradation, it has restricted it to a minimal extent and the degradation caused was out of necessity and is completely valid as per the facts and circumstances. It was absolutely necessary to take such a step as it will make Soleti an economically independent state. This step is of absolute importance to the public policy, and the degradation caused will be made good through the course of time. Further it is submitted that, the govt. has done nothing wrong in going ahead with the mining project, hence it is not obliged to pay compensation to the Aryans. The following arguments will substantiate the above arguments: II.1.

) The govt. is obliged to observe the doctrine of Harmonious Construction

enshrined under the Constitution of Soleti. II.2. ) The mining project does not violate the Fundamental Rights of Aryans. II.3. II.4. II.5. II.6. II.7. II.8. II.9. 2.1.

) The Mining Project does not violate the right to wholesome environment. ) The Mining Project does not violate the right to health. ) The Mining Project does not violate the right to livelihood. ) The Mining Project does not violate any religious rights. ) The Mining Project does not violate the right to information. ) The forest clearance is valid. ) The environmental clearance is valid. ) The govt. is obliged to observe the doctrine of Harmonious Construction enshrined under the Constitution of Soleti.


21 It is humbly submitted that, the government is under the obligation to work as per the mandate of the Soletian constitution. It cannot function beyond that. The govt. not only has to take into consideration the Fundamental Rights, but also the Preamble and the Directive Principles of State Policy. The govt. has to observe this Trinity; otherwise it has failed the constitution and is no longer authorized to govern the State27. As it is known that, Aryans are tribes residing in the state of Gaur28 it is of paramount importance that, the government should take adequate steps to eradicate economic injustice suffered by them. The constitution makers rightly perceived that mere political democracy would be meaningless in a country of the poor millions without economic justice.29 The ideals stated in the Preamble are reinforced through the DPSPs which spell out in greater detail the goal of economic democracy, the socio-economic content of political freedom, the concept of a welfare state.30 The 42nd amendment was brought to establish an egalitarian social order through rule of law as it is basic structure.31 In Minerva Mills32, the Supreme Court considered the meaning of “Socialism” as to crystallize a socialistic state securing to its people socio-economic justice by interplay of Fundamental Rights and DPSPs. In Nakara33, the Supreme Court has stated that democratic socialism achieves social-economic revolution to end poverty, ignorance, disease and inequality of opportunity. The govt. of Soleti is striving towards achieving the goal of economic justice by this project, as it will generate employment and will also raise the standard of living of the tribes which remain backward if such actions are not taken.

27 M.P Jain Indian Constitutional Law 28 Clarification no. 3 29 Valsamma Paul v. Cochin University, AIR 1996 SC 1011 30 Supra note. 26 31 Air India Statutory Crop. V. United Labour Uninon, AIR 1997 SC 645 32 Minerva Mills v. Union of India, AIR 1983 SC130 33 D.S. Nakara v. Union of India, AIR 1983 SC 130


22 In Raghunath Reddy34, the Supreme Court has stated that the aim of socialism is the distribution of the material resources of the community in such a way as to subserve the common. The govt. of Soleti through this project aims to make Soleti an export country which will boost the economy and in the process will revolutionize the mineral oil processing in Soleti. In Sanjeev Coke Mfg Co. v. Bharat Coal Ltd.35, the Supreme Court has held that the broad egalitarian principle is implicit in every Directive Principle. The law ought to be designed so as to promote broader egalitarian social goals of economic justice for all. The mining project will help in achieving the object of economic justice. In toto it is submitted that, the Preamble, the FRs and the DPSPs have been characterized as the TRINITY36 of the constitution, hence FRs alone cannot prevail over the other parts of the constitution. The FRs creates a negative obligation on the State and the DPSPs create a positive obligation therefore, in the present case when we weigh the two we can clearly see that the obligation of the state to follow the trinity stands at a higher pedestal. 2.2.

) The mining project does not violate the Fundamental Rights of Aryans

The jurisdiction under Art. 32 can be invoked only when Fundamental Rights are violated. It has been held that if a right, other than a fundamental right is claimed to be violated then such questions can be addressed only in the appropriate proceedings and not on an application under Art. 3237 In the instant case, it is submitted no fundamental rights of the Petitioner or the Tribal Communities have been violated, therefore, this petition must fail. It is submitted that, although there seems to be violation of FRs, but in factual scenario it is not the case. In the case of Chandra Bhawan Boarding and Lodging, Bangalore v. State of Mysore38, the Supreme Court observed that, FRs and DPSPs are complementary and supplementary to each other. Hence, a particular act of the state may seem to interfere with 34 State of Karnataka v. Raghunath Reddy, AIR 1978 SC 215 35 AIR 1983 SC 239 36 Ahmedabad Mun. Corp. V. Nawabkhan Gulab Khan, AIR 1997 SC 152 37 Ramjilal v. Income Tax Officer, AIR 1951 SC 97 38 AIR 1970 SC 2042


23 the FRs but when looked upon meticulously it can be seen that, it is done in furtherance of the public policy which incorporates the objectives of DPSPs as well. In Golakh Nath39, the stressed upon the DPSPs and observed that, “FRs and DSPSs are an integrated scheme which was elastic enough to respond to the changing needs of the society”. In Pathumma v. State of Kerala40, the Supreme Court has emphasized that the purpose of Directive Principles is to fix certain socio-economic goals for immediate attainment. Another observation was made in Minerva Mills41, “the fundamental rights are not end in themselves but are the means to an end”. The end is specified in the Directive Principle. The Indian constitution is founded on the bedrock of the balance between the two42. The inter-relation of FRs and DPSPs. It is humbly submitted that, the FRs alone should not be given paramount importance but it should be read in consonance with the DPSPs otherwise the factual scenario would be seen in the incorrect form. This might lead to wrong interpretation of circumstances thereby causing havoc in the distribution of justice. It is further submitted that, Article 38(1)43which directs the state to strive “to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall inform all the institutions of the national life” , needs to be read with Article 1444 which says equality before the law. Article 38 (2)45 directs the state to strive “to minimize the inequalities in income” and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst the individuals but also groups of people residing areas or engaged in different vocations46. 39 Golakh Nath v. State of Punjab, AIR 1967 SC 1643 40 AIR 1978 SC 771 41 Supra note 31 42 Ibid 43 Article 38, Constitution of Soleti 44 Article 14 , Constitution of Soleti 45 Supra note 41 46 Supra note 30


24

Since the Aryans are tribal people they are dependent whatever the forest gave them and are heavily dependent on the river Suhu47, the project will give them employment, this in turn will give them a chance to attain the same standard of living as other individuals are getting in other parts of Soleti. The Supreme Court from time to time has read, Art. 19 (1)(d), 21 and 38 (2)48 together and has insisted that people of hilly areas should have access to roads, as without roads their economic conditions cannot improve.49 In the present matter the government of Soleti has to construct roads in order to run the project smoothly, the construction of roads will give Aryans to connect with other parts of different states surrounding the state of Gaur. It is further submitted that, the Supreme Court has taken recourse to Art. 39(a)50to interpret Art. 2151 to include therein the “right to livelihood”. In the case of Olga Tellis52this hon’ble court observed, “if there is an obligation upon the State to secure to the citizen an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of right to life.” The mining project will ensure that Aryans get proper means of livelihood which also their fundamental right, so the project instead of violating the FRs is facilitating the proper implementation of the same. Art. 39 (b) and (c)53 are very significant constitutional provisions as they affect the entire economic system in Soleti. Directive Principles contained in Art. 39 have assumed great importance and have figured in a number of judicial pronouncements after its enactment. In State of Karnataka v.

47 Moot Compromis ¶ 10.2 48 Constitution of Soleti 49 Steel Authority of India Ltd. v. National Union Welfare Works (2001) 7 SCC 1 50 Article 39, Constitution of Soleti 51 Article 21, Constitution of Soleti 52 Olega Tellis v. Bombay Municipal Corp. AIR 1996 SC 1870 53 Supra note 48


25 Ranganathan Reddy54 the Supreme Court said that, “….and material resources of the community in the context of re-ordering the national economy embraces all the national wealth, not merely natural resources, all the private and public sources of meeting material needs, not merely public possessions. Everything of value or use in the material world is material resource and the individual being a member of the community his resources are part of those of the community..” hence, the mineral “Sona” belongs to the whole of Soleti and all its citizens are entitled to the economic benefits arising out of it. The project undertaken by the govt. is ensuring the same. The government of Soleti is under an obligation to ensure economic empowerment of the country. Reading Art. 14, 21, 38, 39 and 46, and the Preamble to the Constitution, the Supreme Court has developed the doctrine of economic empowerment of the weaker sections of the society55. The court has held that the right to economic empowerment to the Dalit, tribes56, and the poor is a part of the distributive justice and is a Fundamental Right.57 The court has observed in R. Chandrappa v. State of Karnataka58 “the economic empowerment, therefore, to the poor, dalits and tribes is an integral constitutional scheme of socio-economic democracy is a way of life of political democracy. Economic empowerment is therefore, a basic human right and a Fundamental Right as part of right to live, equal opportunity and of status and dignity to the poor, weaker sections”. 2.3.

) The Mining Project does not violate the right to wholesome environment

It is submitted that the Mining Project does not violate the right to environment since the Project is subject to stringent regulations and oversight by competent bodies that ensure change in environment, if any, is not harmful. Further, the question of whether the Mining Project is dangerous is essentially a scientific one that is beyond the scope of judicial review

54 AIR 1978 SC 215 55 Supra note 26 56 Aryans are tribal people 57 Murlidhar Dayandeo kesekar v. Vishwanath Pandu Borde, (1995) 2 SCC 549 58 (1995) 6 SCC 309


26 [a]. In any case, the right to environment must be balanced with other interests [b] and such a balance is necessarily a question of policy that cannot be interfered with lightly [c]. a) Scientific questions are beyond the scope of judicial review The issue of environmental safety of the mine is one that requires scientific expertise. This Court does not possess the requisite expertise to adjudicate on intricate scientific questions or conflicting expert opinions.59 Consequently, there is a long-standing tradition of this Court not interfering with the decisions to experts60. In Tehri Bandh Virodhi Sangarsh Samiti61, it was held that the role of the Court is only to investigate whether the Government was alive to the inherent dangers of a project and whether the Government had applied its mind to the safety of a project62

In this case, the safety aspects of the Mining Project have been considered by experts and the Respondents at the EIA Stage. Therefore, it is submitted that it is beyond the scope of judicial review to re-open such questions merely on the apprehension of environmental degradation. b) A proper balance must be struck between environment and development It is submitted that, it has been accepted that no development is possible without some adverse effect on the ecology and environment63. A proper balance must be struck between the protection of environment and the development process64. Therefore, even if the Mining 59 Tehri Bandh Virodhi Sangarsh Samiti v. State of Uttar Pradesh, (1992) Supp (1) SCC 44 60 University of Mysore v. C. D. Govinda Rao AIR 1965 SC 491; Central Areca Nut & Cocoa Marketing & Processing Coop. Ltd. v. State of Karnataka (1997) 8 SCC 31; Avishek Goenka v. Union of India (2012) 5 SCC 275; Woon Tankan and Seven Others v. Asian Rare Earth Sdn. Ehd. CLJ (1992) 2 207 (Malaysia)

61 Ibid 62 Tehri Bandh Virodhi Sangarsh Samiti v. State of Uttar Pradesh, (1992) Supp (1) SCC 44 63 T.N. Godavarman Thirumalpad (through K.M. Chinnappa) v. Union of India, 2002 (10) SCC 606 64 Indian Council for Enviro- Legal Action vs. Union of India and Ors. (1995) 6 SCC 281; Rambhau Patil


27 Project has the potential to cause harm, “the larger public interest of the community should give way”65 This approach was taken in Narmada Bachao Andolan66 and Sundarrajan67 and it is submitted that such an approach must be adopted herein also. c) Balancing competing interests is a policy decision that cannot be lightly interfered with The task of striking the aforesaid delicate balance between maintaining environment and solving other problems in public interest is for the Government68, and not the Court. Such a delicate balance is a matter of policy and must be lightly interfered with. Further, it has been reiterated multiple times by this Hon'ble Court that it is beyond the scope of judicial review to examine the wisdom behind a policy.69 The Court does not test the correctness of a policy or strike it down merely because there are alternatives that are in the Courts opinion may be fairer or wiser70. The Court may interfere only if there illegality or mala fides71 and not merely because it is wanting in public interest72. Therefore, the Court may not strike down the policy decision of the Government to carry on the Mining Project unless there is some illegality or mala fide in it.

v. Maharashtra State Road Development Corporation 2002(1) Bom CR 76; People United for better Living in Calcutta v. State of West Bengal, AIR 1993 Cal. 215

65 G. Sundarrajan vs. Union of India, (2013) 6 SCC 620 66 Narmada Bachao Andolan v. Union of India, AIR 2000 SC 375 67 G. Sundarrajan vs. Union of India, (2013) 6 SCC 620 68 Dahanu Taluka Environment Protection Group v.Bombay Suburban Electricity Supply Company, (1991) 2 SCC 538; Rural Litigation Entitlement Kendra v. State of Uttar Pradesh, AIR 1985 SC 652 69 BALCO Employees Union v. Union of India (2002) 2 SCC 333; Netai Bag v. State of West Bengal (2000) 8SCC 262; G. Sundarrajan vs. Union of India, (2013) 6 SCC 620 70 Villianur Iyarkkai Padukappu Maiyam v. Union of India & Ors. [2009] INSC 1077; Premium Granites vs. State of T.N., (1994) 2 SCC 691

71 BALCO Employees Union v. Union of India (2002) 2 SCC 333 72 Kasturi Lal Lakshmi Reddy v. State of Jammu & Kashmir, AIR 1980 SC 1992


28 2.4.) The Mining Project does not violate the right to health The Respondents submit that the right to health is not violated in the instant case since: first, the Mining Project has not violated any safety regulations or standards [a]; and a balancing approach has to be adopted and here, the benefits outweigh potential risks [b] a) The Mining Project has not violated any safety regulations or standards The Mining Project is under strict supervision by various authorities including the High Court to ensure that all safety features are complied with. The yardstick for permissible level is determined by the appropriate authorities, and there is no scope for judicial intervention unless these permissible limits are crossed.73 In the instant case it can be seen that, all the allegations of environment pollution are based on the report prepared by the NGO74 which is not a competent authority hence the report is completely inacceptable in the court of law. The NGAO did not cross any limits set by the standards75. At most, the Courts issue directions to ensure that safety regulations are complied with and periodic checks are conducted.76 b) In the balancing approach, the benefits outweigh potential risks It has been held that sometimes the ill-effects of technology have to be tolerated as the cost of their advantages.77 Since the Petitioner is unable to demonstrate any tangible harm to human health, this balancing approach is the right one. Further, the substantial benefits of the Mining Project outweigh the apprehension of minor health problems, it is submitted that there is no violation of right to health.

73 Mathew Lukose v. Kerala State Pollution Control Board, (1990) 2 KLT 686 74 Moot Compromis ¶ 10 75 Clarification no. 7 76 Reliance Infocom Ltd. v. Chemanchery Grama Panchayat, AIR 2007 Ker 33; G. Sundarrajan vs. Union of India, (2013) 6 SCC 620.

77 Reliance Infocom Ltd. v. Chemanchery Grama Panchayat, AIR 2007 Ker 33


29 2.5.) The Mining Project does not violate the right to livelihood It is submitted that the right to livelihood is not restricted since they are merely displaced, but still enjoy access to the lands and forests of Dhir [a]. In any event, the restriction is justified [b] a.) There is no deprivation of the right to livelihood The Tribal Communities namely the Aryans engage in activities such as gathering fruits and flowers, apiculture etc. for their livelihood. It is submitted that this right is not infringed since the EC mandates that govt. permit the Tribal Communities to continue with these activities according to their customary practices. In the instant case, the Tribal Communities still have access to these lands and forests for their livelihood and this is unconnected with their displacement. The Aryans were never displaced there allowed to stay at their residents but the left their homes on their own discretion. In Chameli78this Court held that a land acquisition for a public purpose does not violate the right to livelihood. Thus, it is submitted that the Petitioners may not argue that the mere displacement from their traditional lands is sufficient to establish deprivation of livelihood. On the contrary, the opportunities for livelihood for the Tribal Communities are enhanced since the project did not displace any of the Aryans, instead it will create opportunity for them to work also provides for their vocational training which increases their overall employability.

b.) In any event, the deprivation of the right to livelihood is justified

78 Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 1051


30 It is submitted that the right to livelihood is not absolute and is sometimes has to yield to compelling public interest.79 In the instant case, the Mining Project was undertaken to extract Sona which is an essential mineral in the petroleum oil processing which is the need of the hour for the country as it will make the country economically independent. In fact, it was this very Court called for such pressing issue to be addressed expeditiously in the interest of the livelihood of the industrial workers who faced forced layoffs and retrenchment. Indeed, in Banwasi Sewa Ashram80, this Court on similar facts agreed with the executive's decision to prioritise the industrial growth of the country and demand for energy over the right of adivasis to collect forest produce. Further, that effect of closure of the Mining Project on livelihood of those who work therein is also a relevant factor to be considered.81 2.6.) The Mining Project does not violate any religious rights It is submitted that the Tribal Communities have not established how their religious rights are violated [a] and in any event, a restriction on their religious rights is justified [b]. a.) The Tribal Communities have not established any violation of religious rights It is submitted that the Petitioners have not established the manner by which the Mining Project allegedly violates their freedom of religion. Cases which have required the Court to interfere on ground on violation of Art. 25 by developmental projects have stated the specific religious practice, such as worship of a particular deity82or conduct of a ceremony83 that is infringed. Furthermore, the freedom of religion is not absolute84and extends to only those 79 Ibid 80 Banwasi Sewa Ashram v. State of Uttar Pradesh, AIR 1987 SC 374. 81 Goa Foundation v. Union of India, (2014) 6 SCC 590 82 Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476. 83 Chewang Pintso Bhutia v. State of Sikkim, W.P.(C) No. 22/2012. 84Commissioner H.R.E v. L.T. Swamiar, AIR 1954 SC 282; Sardar Syedna Taher Saifuddin v. State Of Bombay, AIR 1962 SC 853; Acharya Maharajshri Narendera Prasadji Anand Prasadji Maharaj and Others v. State of Gujarat & Others, AIR 1974 SC 2098; Church Of God (Full Gospel) v. K.K.R. Majestic Colony Welfare, AIR 2000 SC


31 religious practices that are essential or integral85. In this case, the Petitioners did not mention any concern regarding their beliefs and religious practices and have failed to show any actual invasion into their beliefs or essential practices by the Mining Project. Therefore, it is submitted that no religious rights have been violated. b.) In any event, the restriction on the religious rights is justified. The right guaranteed under Art. 25 is not absolute86 and can be restricted on, inter alia, other provisions in Part III of the Constitution87. The right to development has been read into Article 2188. Moreover, even in cases of encroachment of religious rights, it is legitimate for the State to step in to balance competing interests taking into account the Directive Principles and social welfare as a whole89. In this case, the Mining Project was undertaken to utilise the resources of its country and to meet its requirements. It was most feasible method to resolve the economic conditions of the country and meet the pressing needs to process mineral oil in the country.90 Therefore, it must be interpreted to be in pursuance of the right to development, exercise of eminent domain and in any case, an instance of the State balancing competing interests. Hence, it is submitted that any restriction of the right to religion is justified. 2.7.) The Mining Project does not violate the right to information. The Respondents submit that the right to information of the Tribal Communities has not been violated since first, the provisions in the EIA Notification that mandate dissemination 2773. 85 Commissioner Of Police v. Acharya J. Avadhuta and Anr., AIR 2004 SC 2984; Church Of God (Full Gospel) v. K.K.R. Majestic Colony Welfare, AIR 2000 SC 2773; 86 A.S. Narayana Deeshitalyu v. State of Andhra Pradesh, AIR 1996 SC 1765. 87 Church Of God (Full Gospel) v. K.K.R. Majestic Colony Welfare, AIR 2000 SC 2773. 88 Samatha v. State of Andhra Pradesh, Civil Appeal 4601-02 of 1997. 89 Acharya Maharajshri Narendera Prasadji Anand Prasadji Maharaj v. State of Gujarat, AIR 1974 SC 2098. 90 Moot Compromis ¶ 6


32 of information have been complied with. In any case, the Petitioner and the Tribal Communities enjoy a statutory right to information. First, the EIA Notification contains various provisions mandating the dissemination of information itself so that the locally affected persons and concerned sections of civil society may peruse the EIA91. Moreover, the NGAO has to advertise the draft EIA in a major National Daily and a Regional Daily thirty days before the public hearing.92 The advertisement shall also contain information on where the public can access the draft EIA and Summary report before the hearing93. Lastly, “every person present at the venue shall be granted the opportunity to seek information or clarifications on the project from the Applicant.”94 In the present matter the petitioners did not raise any objections as to procedures followed by NGAO in the preparation of EIA report. The right to information is considered to as a fundamental right of a person nothing can waive it off. It can be safely concluded that, all the due procedures were followed as the EIA report got clearance95 which is of paramount importance before going ahead with any development activity. 2.8) The forest clearance is valid The Respondents submit that the Petitioner may not dispute the validity of the Forest Clearance since first, the State’s rights over its mines and minerals is not restricted [a]; the prior approval of the Central Government has been obtained [b]. a.) The State’s rights over its mines and minerals is not restricted It is submitted that the FRA and PESA do not interfere with the right of the State to mine Sona. In Amritlal Nathubhai Shah v. Union Government of India96, Supreme Court held that the State is “the owner of minerals within its territory, and the minerals vest in it.” It is 91 Environment Impact Assessment Notification ¶ 2.3 & 2.4, Appendix IV (2006). 92Environment Impact Assessment Notification ¶ 3.1, Appendix IV (2006). 93 Environment Impact Assessment Notification ¶ 3.2, Appendix IV (2006). 94 Environment Impact Assessment Notification ¶ 6.4, Appendix IV (2006). 95 Clarification no. 6 96 Amritlal Nathubhai Shah v. Union Government of India, AIR 1976 SC 2591


33 submitted that the rights of the Govt. of Soleti under the FRA do not interfere with the aforesaid power of the State. This is because the FRA is “in addition to and not in derogation of” other laws in force.97 Since there is no law to the contrary, “laws in force” includes the Petroleum Act, 1934, Petroleum Minerals pipeline (acquisition of rights in users land), 1962. In fact, the SC has affirmed that the Forest Rights Act has not “interfered with the right of the State over mines or minerals lying underneath the forest land, which stand vested in the State.”98Thus, the right of the State to mine remains undisturbed. The PESA stipulates that prior approval of the Gram Sabha must be sought in the case of prospecting license for minor minerals and auction thereof.99 Since Sona cannot be considered a minor mineral, the approval of the Gram Sabha is not necessary. Therefore, the State has an unconditional right to mine Sona from the reserve forest of Dhir. b.) Prior Approval of Central Government has been obtained. It is submitted that, since NGAO was a PSU of the Union Govt. of Soleti100, all the approvals would have been granted the govt. easily. This also for the fact the govt. is acting under the authority of a master servant relationship. Had it been some private agency it had to prove that, it had adhered to all the pre-requisites before moving ahead with work. The reserved forest area can anytime converted and used for the necessary purpose if the central govt. gave the approval taking into consideration Forest (Conservation) Act, 1980, Environment (Protection) Act, 1996 and the Environment Impact Assessment Regulations101. It evident from the facts of the case that, all the necessary approvals were taken, and also there is no objections raised by the petitioners regarding the same. 97 Panchayats (Extension to Scheduled Areas) Act § 13 (1996). 98 Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476. 99 Panchayats (Extension to Scheduled Areas) Act § 4(k) & 4(l) (1996). 100 Moot Compromis ¶ 8 101 M.C. Mehta v. Union of India (mining in Aravalli Hills case), (2009) 6 SCC 142.


34

2.9.) The environmental clearance is valid It is submitted that the Environmental Clearance granted cannot be challenged by the Petitioners since first, the public consultation requirement can be considered to be satisfied under the EIA[a]; second, the EC does not suffer from Wednesbury unreasonableness [b]; and finally, the Forest Clearance is valid [c] a.) The public consultation requirement can be considered to be satisfied. It is submitted for the requirement of public consultation can be considered to be satisfied in the instant case. The EIA Notification specifies that a public hearing must be conducted for the purpose of ascertaining concerns of all local affected persons.102 In the present case when the govt. framed the policy to go ahead with the project, it is mandatory for any govt. to publish the public policy decision in the general public. Although the Aryans were directly consulted but they still had recourse of demanding the information through a written submission103. Therefore, the non-inclusion of Aryans in the public hearing does not vitiate public consultation process. Hence, the EIA was proper and the EC is valid.

b.) The EC does not suffer from Wednesbury unreasonableness. The Petitioner may submit that the EC suffers from Wednesbury unreasonableness on account of cancellation of a mandatory public hearing by the SPCB and non-consideration of all relevant objections by the EAC. An administrative decision is struck by Wednesbury unreasonableness if it has, inter alia, “ignored a very relevant material which it should have taken into consideration.”104

102 Environment Impact Assessment Notification (2006). 103 Environment Impact Assessment Notification ¶ 6.4, Appendix IV (2006) 104 Rameshwar Prasad v. Union of India (1994) 3 SCC 1


35 However, the Respondents submit that, the present matter does not talk about or even give a hint regarding the issue, whether the public hearing was conducted or not. Since no possible conclusions can be drawn regarding the mandatory public hearing it cannot be covered under the ambit of “relevant material”. Moreover, there is nothing to suggest that the NGAO “ignored a very relevant material which it should have taken into consideration” during the appraisal process. In fact, there were no objections to be considered since the central govt. gave approval to the EIA report.105 Therefore, the decisions made by the NGAO were sound and in accordance with law. The EC is not struck by Wednesbury unreasonableness.

c.) The Forest Clearance is valid The Petitioner may submit that the EC is conditional on the grant of Forest Clearance and its validity thereof. The Respondents submit that since the FC is valid106, and hence the EC cannot be challenged on that ground.

105 Supra note 93 106 Pleadings 2.8 (a)


36 PRAYER

Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly prayed that this Hon’ble Court may be pleased to hold, adjudge and declare that; 1. The instant Writ Petition is not maintainable. 2. The govt. is not responsible for the flood which occurred in the state of Gaur. 3. The Project does not violate any fundamental right of the Aryans. 4. The govt. of Soleti is not liable to pay compensation to the Aryans. 5. The plant should keep working and there is no need to shut it down. Any other relief which this Hon’ble court may be pleased to grant in the interests of Justice, Equity and Good Conscience. All of which is respectfully submitted. For This Act of Kindness, the Respondents Shall Be Duty Bound Forever Pray.

All of which is respectfully submitted. S/d__________________ (Counsel for the Respondents)


Memorial on Behalf of Respondents

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