Memorial On Behalf of Petitioner
Memorial On Behalf of Petitioner
of Constitution of Rambo
v.
TABLE OF CONTENTS
Table of Contents........................................................................................................................i
List Of Abbreviations...............................................................................................................iii
Index Of Authorities..................................................................................................................v
Statement of Jurisdiction............................................................................................................x
Statement of facts......................................................................................................................xi
Statement of Issues.................................................................................................................xiii
Summary of Arguments..........................................................................................................xiv
Arguments Advanced.................................................................................................................1
I. Whether the Public Interest Litigation filed against Union of Rambo and Maraco
International Ltd. is Maintainable..........................................................................................1
I.1. Public Interest litigation can be filed against the Union and MIL.......................1
II. Whether There Has Been Violation Of Fundamental Rights Of Indigenous People.....2
III. Whether Union Of Rambo And Maraco International Ltd. Are Liable For
Environment Degradation......................................................................................................6
III.1.2. Environment Impact Assessment was either not done or was done
i
III.3. Liability of the State for Climate Change in the Pongean Sea.............................9
Prayer.......................................................................................................................................11
ii
LIST OF ABBREVIATIONS
¶ Para
¶¶ Paras
All Allahabad
Art. Article
Cal Calcutta
Del Delhi
Ed. Edition
Mad Madras
Ori Orissa
p. Page No.
iii
PAT Patna
Raj Rajasthan
SC Supreme Court
Sec. Section
iv
INDEX OF AUTHORITIES
CASES
1.A.P. State Fishermen Development and Welfare Association v. District Collector and
Ors, 2010 (2) ALD 300.................................................................................................5
2.Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 121 2
4.Alaknanda Hydro Power Company Ltd. v. Anuj Joshi and Ors.2013 (10) SCALE 261
9 5.Andhra Pradesh Pollution Control Board –II v. Prof. MV Mayudu, (2001) 2 SCC 62
............................................................................................................................................2
6. Ashok Kumar Tripathi v. Union of India and others, W.P. No. 2262/99........................5
8. Bandhua Mukti Morcha v. Union Of India & Others 1984 AIR 802..............................9
9. Binny Ltd. And Anr. v. Sadasivan and Ors. AIR 2005 SC 320.....................................1
12. Church of God (Full Gospel) in India v. KKRMC Welfare Association AIR 2000 SC
2773..............................................................................................................................11
15. Farhad K. Wadia v.Union of India and Ors. (2009) 2 SCC 442...................................10
17. Free Legal Aid Cell Shri Sugan Chand Agarwal v. Government of National Territory
of Delhi, AIR 2001 Del 455.........................................................................................10
18. Free Legal Aid Cell Shri Sugan Chand Aggarwal v. Govt. of NCT of Delhi and Ors.,
AIR 2001 Del 45..........................................................................................................10
19. Goa Foundation and Others v. State of Goa and Others, 2001 (3) BomCR 813............6
21. In Re: Noise Pollution- Prevention of Environment and Sound Pollution v. UOI and
Anr, AIR 2005 SC 3136...............................................................................................10
22. Indian Council For Enviro Legal Action v. Union of India, (2011) 8 SCC 161......2, 12
23.K. Guruprasad Rao v. State of Karnataka and others, 2013 Indlaw SC 628..................4
24. Kailas v. State of Maharashtra, Criminal Appeal No. 11 of 2011, arising out of Special
Leave Petition No. 10367 of 2010.................................................................................4
33. NTPC Ltd. and Anr. v. State of Uttar Pradesh and Ors 2011(11) ADJ 390.................11
36. Orissa Mining Corporation Ltd. v. Ministry of Environment & Forest & Others, Writ
Petition No. 180 of 2011............................................................................................4, 5
37. People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473...............5
40. Rural Litigation and Entitlement Kendra v. State of U.P, 1989 Supp (1) SCC 504.......5
41.S. Jagannath v. Union of India and Others, W.P. (C) No. 561 of 1994..........................6
42. Samatha v. State of Andhra Pradesh & Ors., AIR 1997 SC 3297.........................4, 6, 7
vi
45. State of Himachal Pradesh v. Umed Ram Sharma and Ors. AIR 1986 SC 847.............9
46. State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit
And Others (Civil Appeal Nos. 104-105 Of 2001)........................................................4
47. State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit
And Others, Civil Appeal Nos. 104-105 Of 2001..........................................................5
48. State of Uttaranchal v. B.S. Chaufal & Ors, AIR 2010 SC 2550....................................9
50. Sukhdev and Ors v. Bhagat Ram and Ors. AIR 1975 SC 1331......................................1
53.T.N. Godavarman Thirumulpad v. Union of India (UOI) and Ors. AIR 2005 SC 425
BOOKS
1. Banerjee, Digest of Land Acquisition & Compensation cases, 2nd Edition 1997,
Ashoka Law House.
3. Behura N.K. Panigrahi Nilakantha, Tribals and the Indian Constitution, Edition 2006,
Rawat Publications.
5. Dhirajlal & Ratanlal, The Law of Torts.26th edition 2012, LexisNexis Butterworths
Wadhwa.
6. Divan Shyam , Rosencranz Armin ,Environmental Law and policy in India, Second
Edition 2004, Oxford India paperbacks.
vi
7. Doabia T.S, Environmental & Pollution laws in India, 1st Edition 2005, Wadhwa
Nagpur.
8. Jain M.P., Indian Constitutional Law, 6th Edition 2011, LexisNexis Butterworth
Wadhwa Nagpur.
9. Jaswal P.S., Environmental Law, 2nd Edition 2006, Allahabad Law agency.
10. Karkara G.S., Environmental Law, 1st Edition, 1999, Central Law Publications.
11. Leelakrishnan P., Environmental Case Law Book, 2nd Edition 2006, LexisNexis
Butterworths.
12. Maheshwara N. Swamy, Law relating to Environmental Pollution and Protection, 2nd
Edition 2003, Asia Law House.
13. Rajendra Prasad, Law of Social Status, Edition 1998, Hindu Law House.
14. Seervai H.M. , Constitutional law of India, 4th Edition 2002, Volume 2, Universal
Book Traders.
15. Shukla V.N , Constitution of India, 11th edition 2008, Eastern Book Company.
16. Singh Bhavjit, Digest of Land Acquisition & Compensation cases, Edition (2000-
2010) Law Times Publication.
17. Sumeet Malik, Environmental Law, 1st Edition 2008, Eastern Book Company.
LEGAL DATABASES
1. Manupatra
2. SCC Online
3. West Law
4. Hein Online
LEXICONS
1. Aiyar Ramanathan P , Advanced Law Lexicon, 3rd Edition, 2005, Wadhwa Nagpur.
LEGISLATIONS
vi
6. Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forests Right)
Act, 2006.
CONVENTIONS
4. The Indigenous and Tribal Populations Convention, 1957 (ILO Convention 107)
ix
STATEMENT OF JURISDICTION
The Hon‟ble Supreme Court of Rambo has the jurisdiction in this matter under
STATEMENT OF FACTS
1. The “Republic of “Rambo” is an island in the Pongean Sea. It has a lush topography.
It is the tenth largest country in the world with a land area measuring 21, 30,500 square
kilometres, one of the fastest developing countries and the most populated country as well.
There are two national political parties, Democratic People Front (DPF) and Liberal People
Front (LPF) and several regional parties. The country has ratified various international
treaties such as UDHR, ICESCR, and UNFCCC. The Republic of Rambo on account of its
coastline faces natural disasters frequently.
2. In February 2005, the government headed by DPF had proposed various
developmental projects including environmental projects in the country. It had constituted a
Committee to control Environmental hazards. In November 2005, the Committee had
submitted its report suggesting various recommendations including reduction of carbon
emissions, construction of sea walls and disaster management.
3. In February 2010, LPF came to power. In March 2011, an expert committee headed
by the former Chief Justice of Rambo, Hon‟ble J. Tikishaki was constituted for analysing the
feasibility of implementation of the project among other things.
4. The committee recommended a revisit to the Disaster Management Program of the
country stressing on the need to remove industries from the coastline which were adding to
the pollutants and, to protect the fragile environment zones in the Country.
5. The Union Territory of Roah is an island that is not connected to the mainland of
Rambo. It lies 200 kilometres off the eastern coast of the country. The extent of land in Roah
is 5, 13,500 square kilometres. Its topography includes lush mangrove forests. These forests
consist of the indigenous population “Karyos” who are untouched by civilization. The
people worshiped nature and followed traditional methods. The eastern coastline of Roah
consists of rich forest reserves called Nacro forest.
6. In April 1989, 2, 10,000 square kilometres of Roah were declared as reserved forests.
The Kayos were not relocated since, they were key to the protection of the environment and
the forests
7. Due to population growth, land space became scarce in Rambo and thus, the
unexplored civilization of the island of Roah was brought to light. The people in the
mainland started moving to Roah. The price of land in Roah increased manifold
xi
8. With the advent of civilization to Roah, the Indigenous people were either pushed into
isolation or exposed to forced assimilation. Moreover, the forests in the region were
gradually cut.
9. The economy of Rambo suffered a huge setback in December 2010. In March 2012, a
powerful cyclone named “Voldemort” ravaged the coastline of Rambo particularly the island
of Roah. The island of Roah was affected by severe floods newly constructed Buildings
were washed away and people moved into the Nacro forests. The markings of the forests
were obliterated by the cyclone.
10. A PIL was filed by Ms. Kriantha before the Hon‟ble High Court of Roah. The Court
held that the authorities have to take steps immediately to strike a balance between providing
a place for people to live and protecting the mangrove forests which were of prime
importance to the Karyos and to the island of Roah.
11. Following the cyclone, the Rambo Coordinated Research Committee (RCRC), a
Central Government accredited research institution reported an increase in sea water
intrusion and identified Roah as a sinking island giving it a time of only 10 years. They
advised the government to relocate the population prevent deforestation. The government
decided to build sea walls that could protect the island for at least a decade.
12. The government invited tenders to construct sea walls and “Maraco International
Ltd.” A company registered in the U.S. was selected. A construction site was set up in Roah
at the beach to immediately begin construction activities. Within a month of the site being
set up, there were constant complaints of respiratory problems on account of the dust and
fumes emitted by the site by the people living in and around residential areas. There were
complaints of noise as well especially during night time.
13. In August 2012, the “Pro Bono Enviro Society” an NGO, published a report in its
annual magazine. In January 2013, due to wide protests in Roah, the Central Pollution
Control Board (CPCB) directed the closure of the MIL under section 31A of the Air
(Prevention and Control of Pollution) Act, 1981. The Court on appeal by MIL struck down
the closure order, ordered the company to install necessary pollution control equipment to
protect people and the environment from the hazards of air pollution.
14. In October 2013, the “Pro Bono Enviro Society” filed a PIL before the Supreme
Court of Rambo against the Union of Rambo and MIL with regard to with regard to various
issues which have been listed for hearing on 26th and 27th of October 2013.
xi
STATEMENT OF ISSUES
ISSUE I:
ISSUE II:
ISSUE III:
Whether Union of Rambo and Maraco International Ltd. are liable for
Environment Degradation.
xi
SUMMARY OF ARGUMENTS
Issue I
Whether the public interest litigation filed against union of Rambo and Maraco
International Ltd. is maintainable.
It is humbly submitted before the Hon‟ble Court that present PIL is maintainable against
Union of Rambo and also against Maraco International since, it is a state u/a 12 of the
Constitution. It is further submitted that since there has been gross violation of Article 14, 19
and 21 of the Constitution, the PIL is maintainable, and on account of the same relief is
sought.
Issue II
Whether there has been violation of the rights of the Indigenous People.
It is humbly submitted before the Hon‟ble Court that, Article 19 and Article 21 of the
Constitution have been violated on account of arbitrary action of state, thus, resulting in the
violation of Article 14 as well. Right to Reside, Right to Livelihood and Right to Shelter have
been violated on account of deforestation and right to Culture has also been violated since,
the Indigenous people were subject to forced assimilation and Isolation.
Issue III
Whether Union of Rambo and Maraco International Ltd. are liable for Environment
Degradation.
It is humbly submitted before the Hon‟ble Court that, Union of Rambo and Maraco
International Ltd. are liable for degrading the environment by committing acts such as that of
setting up the construction unit in an improper location, thereby violating the coastal
regulation norms and polluting the environment, which further violated fundamental rights of
the people. Union of Rambo is also responsible for the climate change and therefore, is liable
to pay damages.
xi
ARGUMENTS ADVANCED
I. WHETHER THE PUBLIC INTEREST LITIGATION FILED AGAINST UNION OF RAMBO AND
MARACO INTERNATIONAL LTD. IS MAINTAINABLE.
The present petition is maintainable under Article 32 of the Constitution 1, since, (I.1) Maraco
International Ltd. (hereinafter referred to as MIL) falls within the ambit of “other authorities”
as enshrined u/a 12 of the Constitution (II.2) There has been violation of Fundamental Rights.
I.1. Public Interest litigation can be filed against the Union and MIL
A PIL can be filed against the State for the violation of Fundamental rights 2 under Article 32
of the Constitution; therefore, the PIL is maintainable against Union of Rambo.
Further, to constitute a private party as being state, the same must fall within the ambit of
other authorities u/a 12 and thus must satisfy the court that it is either an instrumentality or an
agency of the State3. In order to adjudge the same, the functions of the corporation 4 must be
of public importance, and closely related to governmental functions.5
Public Function is one which “seeks to achieve some collective benefit for the public or a
section of the public”6.Institutions engaged in performing public functions are, by virtue of
the functions performed, government agencies.7 Further under the well-established doctrine
of Parens Patriae, it is the obligation of the State to protect and take into custody the rights
and the privileges of its citizens for discharging its obligations.8
The act of construction of a sea wall is ideally perpetuated to seek the collective benefit of the
people9 by protecting the interests and lives of the individuals of the concerned area where
the construction takes place.
Hence, in the present case, the act of MIL engaged in construction of sea wall is a public
function as well as a Governmental function.
1
Constitution of Rambo, Pari Materia to Constitution of India (Herein after referred as Constitution).
2
Sukhdev and Ors v. Bhagat Ram and Ors. AIR 1975 SC 1331, ¶ 95.
3
Ajay Hasia v. Khalid Mujib , AIR 1981 SC 487, ¶9.
4
For the purposes of this test a company can be considered corporation, Ibid at ¶ 11.
5
Ibid at ¶ 9(5).
6
Binny Ltd. And Anr. v. Sadasivan and Ors. AIR 2005 SC 320 ¶ 11.
7
Sukhdev and Ors v. Bhagatram and Ors AIR 1975 SC 1331
8
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480, ¶ 35.
9
Technical Memorandum on Guidelines for design and construction of sea wall Ministry of water resources
Govt. of India. Avalable at http://cwc.gov.in/CPDAC/Guideline/CWPRS%20-Technical%20Memoranda.pdf,
Last Accessed 18th October, 2013.
Therefore, it is humbly submitted that, MIL being an instrumentality of the state for the
purposes of construction of sea wall falls within the ambit of “Other Authroity” as enshrined
u/a 12 of the Constitution. Therefore, a PIL is maintainable against MIL
Arguendo, if, MIL is a private party, a PIL can be instituted against private party u/a 32 of the
Constitution10, if the State is made a co-party in the petition.
The fundamental right to shelter11 and livelihood12 of the Indigenous people have been as
guaranteed under u/a 21 of the Constitution been violated on account of the arbitrary action
of the state.
Also, there has been violation of right to Healthy Environment 13 as guaranteed under Article
21 of the Constitution since the state and MIL are responsible for pollution among other
things.
Thus, it is humbly submitted that the present PIL is maintainable against Union of Rambo
and Maraco International Ltd.
The indigenous people were subjected to forced assimilation and isolation and hence, the
fundamental rights as guaranteed under; [II.1] Article 21 of the Constitution [II.2] and Article
19 have been violated; [II.3] Therefore, they should be rehabilitated and relocated.
Article 21 of the Constitution envisages a right to life and personal liberty of a person. The
word “Life” under Article 21 means a quality of life14 , which includes right of food, and
10
Indian Council For Enviro Legal Action v. Union of India, (2011) 8 SCC 161 ¶ 20.
11
Shantistar Builders v. Narayan Khimala Totame, (1990) 1 SCC 520, PG Gupta v. State of Gujarat, (1995) 2
SCC 182, Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 121.
12
Olga Tellis v. Bombay Municipal Corp, AIR 1986 SC 180.
13
Andhra Pradesh Pollution Control Board –II v. Prof. MV Mayudu, (2001) 2 SCC 62.
reasonable accommodation to live in15 and the right to a wholesome environment. 16 Also
ICCPR17, UDHR18 and ICESCR19 recognizes right to life and adequate standard of living.
Further in order to establish violation of Article 21, the act should be subjected to the equality
test of Article 14 and test of reasonableness under Article 19.20 Article 14 strikes at
arbitrariness because it negates equality 21 and permeates the entire fabric of Rule of Law 22.
Therefore, every action of the State must be guided by reason for public good and not by
whim, caprice, and abuse of power.23 Article 19 provides that a restriction can be
characterized to be reasonable if it strikes a balance between the fundamental right and
restriction imposed thereon.24
In this case, there is violation of Article 21 as [II.1.1] they are indigenous people and [II.1.2]
there is deforestation of forests [II.1.3] arbitrary action of government is violating test of
equality and reasonableness.
The indigenous people are considered on same pedestal as Scheduled Tribes 25 or Scheduled
Caste in India26 because of their backwardness27, dependence on basic natural resources28 for
life and livelihood and lack of exposure to civilization 29. Thus, their rights have also been
construed to be safeguarded under Article 244(1) and the provisions of the Fifth Schedule of
the Constitution. Therefore, in the present case, the indigenous people “Karyos” can be
considered to be on the same footing as Scheduled Tribes.
15
Shantisar Builders v. Narayanan Khimalal Totamen, AIR 1990 SC 630.
16
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.
17
Article 6, ICCPR.
18
Article 3, UDHR.
19
Article 11, ICESCR.
20
Maneka Gandhi v. Union of India. AIR 1978 SC 597.
21
Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021.
22
Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
23
Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; Dolly Chandra v. Chairman Jee,
(2005) 9 SCC 779.
24
Om Kumar v. Union of India, AIR 2000 SC 3689.
25
Section 342 lays down the procedure for scheduling and de-scheduling of tribe.
26
Orissa Mining Corporation Ltd. v. Ministry of Environment & Forest & Others, Writ Petition No. 180 of
2011; Kailas v. State of Maharashtra, Criminal Appeal No. 11 of 2011, arising out of Special Leave Petition
No. 10367 of 2010; ILO Convention on Indigenous People, Available at
http://www.ilo.org/wcmsp5/groups/public/---ed_norm/ normes/documents/publication/wcms_106474.pdf, Last
Accessed on 18th October, 2013.
27
State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And Others (Civil
Appeal Nos. 104-105 Of 2001).
28
Samatha v. State of Andhra Pradesh & ors, AIR 1997 SC 3297.
29
Samatha v. State of Andhra Pradesh & ors, AIR 1997 SC 3297, State Of Kerala And Another v. Peoples
Union For Civil Liberties, Kerala State Unit And Others (Civil Appeal Nos. 104-105 Of 2001).
The source of livelihood for forest dwelling people 30 for generations have been forests and
forest lands31 and so are considered inseparable. 32 However, with the advent of civilization
they were exploited by outsiders33, thus, there was a necessity to protect the inherent rights of
indigenous people to empower them to utilise and to exercise control over forest for
sustainable development.34 Therefore, to protect forest land from deforestation and to
encourage forestation35, State is casted upon a duty to save the fast diminishing forest cover
of the country36 under the principle of Public Trust Doctrine 37, Panchayats (Extension to the
Scheduled Areas) Act 1996 (PESA)38 and Articles 48A of the Constitution to preserve the
Forests which are considered to be a national wealth under Environment Protection Act,
1986.39
The Rio Submit, 1992, The Indigenous and Tribal Populations Convention, 1957 and
40
United Nation Declaration on Indigenous people also recognize the rights of indigenous
people over the land.41 The international conventions are considered important to be read
with fundamental rights as they further, enlarge the scope of the same. 42 This depicts the
special relationship between the indigenous people and the forests and their sustenance which
solely arises from these forests.
As stated above forest dwellers derive their sustenance, shelter, source of livelihood, social
and economic status from forests43, therefore, for them forests act as potent weapon of,
economic empowerment in social democracy.44
30
Section 2 (o), The Scheduled Tribes and other Traditional Forest Dweller Act, 2006.
31
Section 2(c), The Scheduled Tribes and other Traditional Forest Dweller Act, 2006.
32
K. Guruprasad Rao v. State of Karnataka and others, 2013 Indlaw SC 628.
33
M P Jain, The Constitution of India, First Report of the Commissioner For Scheduled Castes and Scheduled
Tribes, 3, 11(1952); Samatha v. State of Andhra Pradesh & Ors., AIR 1997 SC 3297.
34
Ashok Kumar Tripathi v. Union of India and others, W.P. No. 2262/99.
35
Rural Litigation and Entitlement Kendra v. State of U.P, 1989 Supp (1) SCC 504.
36
A.P. State Fishermen Development and Welfare Association v. District Collector and Ors, 2010 (2) ALD 300.
37
Ibid.
38
Section 4(d)& (m) of PESA.
39
Subhash Kumar v. State of Bihar,(1991) 1 SCC 598.
40
Article 11, ILO Convention, 1957.
41
State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And Others, Civil
Appeal Nos. 104-105 Of 2001.
42
Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest Writ Petition (Civil) No. 180 OF
2011, Vishaka v. State of Rajasthan, (1997) 6 SCC 241 at 249, People's Union for Democratic Rights v. Union
of India, AIR 1982 SC 1473 at p 1487.
43
Samatha v. State of Andhra Pradesh & ors, AIR 1997 SC 3297.
44
Waman Rao v. Union of India [1981] 2 SCR1, Dalmia Cement Bharat Ltd. v. UOI (1996) 10 SCC 104.
In the present case, the island of Roah includes lush topography of Mangrove Forests 45.
Mangrove trees have been classified as endangered species by IUCN. Further, the Coastal
Regulation Zone (CRZ) Notification, 1991 [hereinafter referred to 1991 Notification] passed
under Environmental Protection Act, 198646, classifies the mangroves area under eco-
sensitive area where the construction of residential building is not permitted. 47However, in
2010 Mangroves were cut and buildings were constructed to accommodate the people of
Rambo48, which not only resulted in violation of 1991 Notification but also that of Article 21.
Since, Mangrove forests removes the pollutants and also acts as a barrier of floods, provides
nesting places for fishes49; it is the ultimate source of life and livelihood and so by conducting
deforestation on these forests there is a violation of Article 21.
Section 2(ii) (iv) of The FCA, 1980 provides that Central Government can only grants the
permission of deforestation for the “non-forest purposes”50 and such clearances are granted if
Central Government considers it reasonable to cut the forest, which is decided on the basis of
the report of the committee 51. However, in the present case there has been non-application of
mind for granting the approval, since, firstly, residential buildings cannot be constructed by
causing deforestation of Mangrove trees52, secondly, considerable reduction of forest in the
island of Roah made it more susceptible to natural disasters. It thus fails to meet the test of
reasonableness under Article 19. Further, the Government of Rambo has acted arbitrarily by
neglecting the rights of tribals and safeguarding the rights of non-tribals, despite the fact that
the movement of non tribals is restricted to tribal area, so as to avoid their exploitation 53, and
thus, there has been violation of Article 14, on account of abuse of power and arbitrariness in
the actions of the Government.
45
¶4 Moot Proposition.
46
Section 3(1) And Section 3(2) (v) Of EPA, 1986 And Rule 5(3)(D) Of The Environment Protection Rules.
47
Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group, [2011] 3 S.C.R. 291.
48
¶10 Moot Proposition.
49
S. Jagannath v. Union of India and Others, W.P. (C) No. 561 of 1994.
50
Section 2, FCA, 1980.
51
Constituted under Rule 2-A of the Forest Conservation Rules,1981, Rule 5 and 6 of Forest Conservation
Rules , 1981, Goa Foundation and Others v. State of Goa and Others, 2001 (3) BomCR 813.
52
Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group, [2011] 3 S.C.R. 29.1.
53
Samatha v.State of AP & Ors. AIR 1997 SC 3297, T.N Godavarman Thirumulkpad v.UOI, (1997) 2 SCC 267.
The right of the indigenous people to settle and reside 54 and to own the property55 anywhere
in the territory of Rambo, especially in the forest of the Roah, guaranteed under Article 19(1)
(e) has been violated, since; there was a lot of encroachment in the forest on account of
deforestation.56 Further when the Government personnel‟s were involved in disaster
management program, due to their negligence there were lot of encroachments in the forest,
which violated their right to reside under Article 19 of the Constitution.
Hence, in the present case the cutting of forest has violated the rights of indigenous people to
hold and live in the forest57, right to protect or conserve resource, and the right to access
biodiversity and cultural diversity58 guaranteed to indigenous people/tribals since their right
to life and livelihood has been violated as envisaged under Article 21.
Article 29 of the Constitution and Article 27 of ICCPR states that minority group should not
be denied the right to enjoy their own culture. However, the fact that people of Rambo were
allowed to settle and reside in the forest area of Roah, forcibly subjected the indigenous
people to the new culture, making them more prone to exploitation, as they were not prepared
physically, socially and culturally for such an interface.
Therefore, it is humbly submitted that the indigenous people should be rehabilitated pending
their relocation59 in an environment which is conducive to their right to life with dignity as
ensured u/a 21. Under Article 47, the government is obliged to take steps 'for the
improvement of public health' and the non-availability of financial resources is not an excuse
in this regard.60
III.WHETHER UNION OF RAMBO AND MARACO INTERNATIONAL LTD. ARE LIABLE FOR
ENVIRONMENT DEGRADATION
The Union of Rambo and MIL has caused environmental degradation by their respective acts,
that being, [III.1] Location of Construction unit at an Improper Place [III.2] Pollution caused
54
Article 19, Constitution.
55
UDHR Articles 17 as well as in Article 6 of the ICESCR.
56
¶10 Moot Proposition.
57
Section 3, The Scheduled Tribes and other Traditional Forest Dweller Act, 2006.
58
Ibid.
59
In accordance with Article 12 of the ILO Convention, 107.
by MIL, violated fundamental rights [III.3] Climate changes caused by Union of Rambo
[III.4] and therefore, liable to pay damages for the violation of fundamental rights.
The Coastal Regulation Zone Notification 61, 2011 issued under the Environment Protection
Act, 1986 62
regulates construction and other similar activities on the coast. 63 An area to be
classified as CRZ-I64 , must have ecologically sensitive areas including mangroves, protected
reserved forest areas and turtle nesting grounds65, where no new construction is permitted,
except as provided under the regulation.66
In the present case, the proximate area in which the construction unit is located has lush
Mangrove topography, reserved forests, nesting grounds for turtles and susceptible ecological
features, therefore, the designated coastal area for the construction of sea walls can be
construed to be CRZ I, and, since no sea wall construction is permitted in this area, it is
clearly violative of the express regulations laid down in the CRZ Notification.
Also, the ecologically sensitive areas like that of Roah are classified as Critical Vulnerable
Coastal Area (CVCA)67 , therefore, the presence of such a polluting construction site will
further add to environmental degradation and natural disasters.
In the instant case, within one month of the construction site being set up, the effluents which
were emitted from the construction site coupled with the high level of noise caused by the
construction work polluted the environment, caused respiratory problems and became a
nuisance for the inhabitants in and around the residential area, thus, violating Article 21
61
Hereinafter referred to as CRZ Notification 2011.
62
Section 3 (2) (1) (v) Environment (Protection) Act, 1986.
63
Regulation 8 (i) (I) (i) and (ii) CRZ Notification 2011, Pg. 9.
64
Coastal Zone Regulation Notification, 1991.
65
Regulation 7 (i) (A) and (B) CRZ Notification 2011, Pg. 8.
66
Regulation 8 (i) (I) (i) and (ii) CRZ Notification 2011, Pg. 9.
67
Regulation 8 (iii) (c) (4) CRZ Notification 2011, Pg. 16.
68
M.C. Mehta v. Union of India and Ors. AIR 2004 SC 4016, Alaknanda Hydro Power Company Ltd. v. Anuj
Joshi and Ors.2013 (10) SCALE 261
which includes their right to have a good quality of life 69 and any disturbance in the
environmental elements is detrimental to this right.70
Therefore, it can be reasonably assumed, as the facts are silent about the same, that the norms
for the setting up of the construction site in residential area have not been complied with.
This further corroborates the fact that either the EIA was not conducted, or the same was
conducted improperly, since, had it been conducted systematically, the people would not
have faced problems in such a short span of time. 71 Hence, an expert committee must be
appointed to further look into the matter.72
Article 21 of the Constitution ensures the fundamental right to live decently and to enjoy
clean air.75 The setting-up of the construction site in the proximity of the residential area
without any appropriate pollution-control equipment is indicative of MIL‟s disregard for the
precautionary norms to be followed for public safety. Due to this, the inhabitants suffered
from severe respiratory problems within a month of the site being set up, thus causing air
pollution, and violating the right to clean air guaranteed under Article 21 of the Constitution.
69
Madhu Kishore v.State of Bihar 1996 5 SCC 125; Ms. Shehla Zia v. WAPDA PLD 1994 Supreme Court 693
in State of Uttaranchal v. B.S. Chaufal & Ors, AIR 2010 SC 2550, State of Himachal Pradesh v. Umed Ram
Sharma and Ors. AIR 1986 SC 847
70
M.C. Mehta v. Kamal Nath , AIR 2000 SC 1997.
71
¶ 12 of the Moot Proposition.
72
Bandhua Mukti Morcha v. Union Of India & Others 1984 AIR 802, 1984 SCR (2) 67.
73
Section 2 (a) The Air (Prevention and Control of Pollution) Act 1981.
74
Free Legal Aid Cell Shri Sugan Chand Aggarwal v. Govt. of NCT of Delhi and Ors., AIR 2001 Del 45.
75
Subhash Kumar v. State of Bihar , AIR 1991 SC 420.
76
In Re: Noise Pollution- Prevention of Environment and Sound Pollution v. UOI and Anr, AIR 2005 SC 3136
77
Free Legal Aid Cell Shri Sugan Chand Agarwal v. Government of National Territory of Delhi, AIR 2001 Del
455.
In the instant case, construction noise caused by MIL, especially during night time became a
nuisance to the people residing in the vicinity of construction site as it resulted in violation of
their right to silence, sleep, and rest79, guaranteed under Article 21 of the Constitution80.
III.3. Liability of the State for Climate Change in the Pongean Sea
The UNFCCC aims for the stabilization of greenhouse gas concentrations in the atmosphere
at a level that would prevent dangerous anthropogenic interference with the climate 82. Union
of Rambo despite of ratifying it , failed to bring under control the anthropogenic greenhouse
gases and carbon emissions83 thereby causing pollution84 , haze, sea water intrusion and the
erratic climatic conditions85. Further, the Government orchestrated deforestation of the
mangroves and reserved forest areas, thereby causing air pollution.86
The sea water in Roah was crystal clear before migration of people 87, however, to
accommodate the new population in Rambo, the Government allowed new buildings to be
constructed in reserved forests88, this not only reduced the forest cover but also polluted the
sea water when the newly constructed buildings were washed away in the heavy floods
caused by the occurrence of „Voldemort‟89, which when mixed with the flood water, releases
pollutants such as silica and alumina.90
78
Ibid ¶16.
79
Farhad K. Wadia v.Union of India and Ors. (2009) 2 SCC 442.
80
In Re: Noise Pollution- Prevention of Environment and Sound Pollution v. Union of India and Anr, AIR 2005
SC 3136, p 3141 ,Church of God (Full Gospel) in India v. KKRMC Welfare Association AIR 2000 SC 2773.
81
Article 1, United Nations Framework Convention on Climate Change, 1992.
82
Article 2, United Nations Framework Convention on Climate Change, 1992.
83
¶ 3 (b) and (c), Tikishaki report, Moot Proposition.
84
Section 2 (a)The Air Pollution (Prevention) Act 1981.
85
¶ 13 (a) and (b), Moot Proposition.
86
NTPC Ltd. and Anr. v. State of Uttar Pradesh and Ors 2011(11) ADJ 390; T.N. Godavarman Thirumulpad v.
Union of India (UOI) and Ors. AIR 2005 SC 4256.
87
¶ 4 Moot Proposition.
88
¶ 8 and 10 of the Moot Proposition
89
¶ 10 of the Moot Proposition
90
Schedule IV The Water (Prevention and Control of Pollution) Rules, 1975
In the present case, there has been a substantial risk to the survival and thriving of the
endangered turtles due the close proximity of the seawall construction site to the surrounding
turtle nesting and breeding habitats. Further, the sea turtles were being killed in their natural
habitat due to the post-migration use of motor boats by the people. 96 Therefore, the
Government of Rambo has failed to perform its duty imposed under Article 48 A and 51A (g)
of the Constitution, to safeguard the environment and especially the existence of sea turtles.
The polluter pays principle97 imposes absolute liability for harm caused to the environment, to
compensate the victims of pollution and to pay the cost of restoring the environment. 98 The
burden of maintaining the said balance lies on the unit which has caused the pollution 99.
Therefore, in the instant case, MIL is liable for non-compliance with the aforementioned
principle; since no preventive measures were taken by MIL for curbing the pollution released
from construction unit, and therefore must pay damages for the harm caused to the
environment as well as to people since it is their fundamental right to be compensated 100.
Also, the Government of Rambo must be directed to take corrective measures in order to
restore the environment.
91
International Union for Conservation of Nature Red Data Book at http://www.iucnredlist.org/
92
Schedule I, Indian Wildlife (Protection) Act, 1972
93
Tata Sons Limited v. Greenpeace International and Anr ,2011 (45) PTC 275 (Del)
94
Article III, Appendix I of The Convention on International Trade in Endangered Species of Wild Fauna and
Flora (CITES), Schedule I of the Indian Wildlife Protection Act, 1972
95
Memorandum of Understanding II signed by India under The Convention on Migratory Species(CMS).
96
¶ 13 (c) of the Moot Proposition
97
Charan Lal Sahu v. Union of India (1990)1 SCC 613
98
Indian Council for Enviro Legal Action v. UOI, (1996) 3 SCC 212; M C Mehta v. UOI, (1987) 1 SCC 395.
99
Narmada Bachao Andolan v. Union of India , (2000) 10 SCC 664
1795
PRAYER
In the light of the issues raised, arguments advanced and authorities cited, may this Hon‟ble
Court be pleased to:
1. Hold the Union of Rambo liable for violation of fundamental rights of the
2. Hold the Union of Rambo and Maraco International Ltd. liable for environmental
3. Order and direct the government to take corrective measures to restore the degraded
environment.
4. Order for the relocation of the construction unit; and, grant a temporary injunction
against the same until an expert committee is appointed to assess the impact of the
environmental clean-up.
AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
And for this, the Petitioner as in duty bound, shall humbly pray.