Memorial On Behalf of Petitioners

1
Team Code 15
IN THE HONBLE 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 PETITIONERS

-DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONERS-
TABLE OF CONTENTS
TABLE OF CONTENTS...2
TABLE OF ABBREVIATIONS.3
INDEX OF AUTHORITIES...4
STATEMENT OF JURISDICTION10
STATEMENT OF FACTS11
ISSUES OF CONSIDERATION...13
SUMMARY OF ARGUMENTS14
WRITTEN SUBMISSIONS.15
1. Whether the PIL filed by Environment Concerned Agency (ECA) is maintainable or

not?...............................................................................................................................15
1.1. . That the petitioners have a locus standi. .15
1.2.
That there was violation of fundamental rights of the Aryans..16
1.3. There is no requirement for the Petitioner to exhaust local remedies 18

1.4. In any event, the alternative local remedy is not equally efficacious .19
2. Whether the Government of Soleti is liable for environment degradation and is

obliged to pay compensation to the Aryans?.....................................................20
2.1. That there was violation of fundamental rights of the citizen

....20
2.2. That the environment clearance is invalid ...27
2.3. Pollution caused by respondents violated Fundamental Rights of people.30
2.4. Damages to be awarded33
PRAYER 34

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TABLE OF ABBREVIATIONS
and ... Paragraph and Paragraphs

A.P. ... Andhra Pradesh
A.C Appellate Cases
AIR All India Reporter
Co. Company
Honble Honourable
MANU Manupatra
Ors.. Others
SC... Supreme Court
SCC Supreme Court Cases
Sd/- Signed
v. Versus
SCR Supreme Court Reporter
NGT.National Green Tribunal
ECAEnvironment Concerned Agency
NGAO..Natural Gas and Oil Corporation
FCA.Forest Conservation Act (1980)
ECEnvironment Committee
EIA..Environment Impact Assessment
PESA.............. Panchayats (Extension to Scheduled Areas) Ac

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INDEX OF AUTHORITIES
STATUTES REFERRED
1.
2.
3.
4.
5.
6.
7.
8.
9.
CONSTITUTION OF INDIA (1950)

ENVIRONMENT IMPACT ASSESSMENT NOTIFICATION (2006)
ENVIRONMENT (PROTECTION) ACT (1986)
FOREST CONSERVATION ACT (1980)
NATIONAL FOREST POLICY (1988)
NATIONAL GREEN TRIBUNAL ACT (2010)
NATIONAL REHABILITATION AND RESETTLEMENT POLICY (2007)
PANCHAYATS (EXTENSION TO SCHEDULED AREAS) (1996)
PROTECTION OF HUMAN RIGHTS ACT (1993)
LEXICONS
1. A. G. Bryan, Blacks 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
LIST OF BOOKS REFERRED

1. Basu D.D , Constitution of India ,14th edition 2009, LexisNexis, Butterworths
Wadhwa Publication Nagpur.

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2. Behura N.K. Panigrahi Nilakantha, Tribals and the Indian Constitution, Edition 2006,
Rawat Publications.
3. Desai . A. Ashok, Environmental Jurisprudence , 2nd Edition 2002, Modern Law
House.
4. Dhirajlal & Ratanlal, The Law of Torts.26th edition 2012, LexisNexis Butterworths
Wadhwa.
5. Divan Shyam , Rosencranz Armin ,Environmental Law and policy in India, Second
Edition 2004, Oxford India paperbacks.
6. Shyam divan & armin rosencranz, environmental law and policy in india 157-158
(2nd ed. 2002).
7. Sairam bhat, natural resources conservation law 455 (2010).
8. Seervai H.M. , Constitutional law of India, 4th Edition 2002, Volume 2, Universal
Book Traders.
CONVENTIONS
1. United Nations Framework Convention on Climate Change, 1992
2. Convention Of International Trade In Endangered Species Of Wild Fauna And Flora,
1975 3. Convention on Migratory Species, 1983
3. The Indigenous and Tribal Populations Convention, 1957 (ILO Convention 107)
4. The Rio Submit, 1992
5. United Nation Declaration of Human Rights, 1948
6. International Convention on Civil and Political Rights, 1966
7. International Covenant on Economic, Social and Cultural Rights, 1966
8. United Nation Declaration on Indigenous People, 2007
ARTICLES
1. Justice A.R. Lakshmanan, Thoughts on Environmental Public Hearings 2, Vol. 17
STUDENT BAR REVIEW (2005).
RULES

6
1. Environment Impact Assessment Notification 2006, Notification S.O.1533, Ministry
of Environment and Forests, dated September 14, 2006.
CASES REFERRED
1.
2.
3.
4.
5.
6.
7.
8.
9.
Ashok Lanka v. Rishi Dixit,5 SCC 598, (SC 2005).

Basheshar Nah v. I.T. Commissioner, AIR 149, (SC 1959)
Bayer (India) Limited v. State of Maharashtra, AIR 290, (Bom H.C. 1995).
Bodhisattwa Gautam v. Subbra Chakraborty, AIR 722, (SC 1996).
Centre for Social Justice v. Union of India, AIR 71, (Guj. HC 2001)
CESC Ltd. v. Subash Chandra Bose, AIR 573, (SC 1992).
Charan Lal Sahu v. Union of India (1990)1 SCC 613
Chewang Pintso Bhutia v. State of Sikkim, W.P.(C) No. 22/2012.
Church of God (Full Gospel) in India v. KKRMC Welfare Association AIR 2000 SC
2773.
10. Indian Council for Enviro Legal Action v. UOI, (1996) 3 SCC 212; M C Mehta v.
UOI, (1987) 1 SCC 395.
11. Daryao v. The State of Uttar Pradesh, AIR 1457, (SC 1961)
12. Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd,13 SCC 30, (SC
2008)
13. Essar Oil Ltd. v. Halar Utkarsh Samiti, 2 SCC 27 (2003).
14. Farhad K. Wadia v.Union of India and Ors. (2009) 2 SCC 442.
15. Federation of Bar association in Karnataka v UOI, AIR 344, (SC 1981).
16. Free Legal Aid Cell Shri Sugan Chand Agarwal v. Government of National Territory
of Delhi, AIR 2001 Del 455.
17. Gaur v. State of Haryana,2 SCC 577, (SC 1995)
18. Goa Foundation v. Diksha Holdings Pvt. Ltd., (1) Bom. C.R 2001, (S.C. 2001)
19. In Re: Noise Pollution- Prevention of Environment and Sound Pollution v. UOI and
Anr, AIR 2005 SC 3136
20. Information for Decision Making, Agenda 21 (1992).
21. Kanubhai Brahmbhatt v. State of Gujarat, AIR 1159, ( SC 1987).
22. Kharak Singh v. State of Uttar Pradesh, AIR 129, (SC 1963)
23. Lafarge Umiam Mining (P) Ltd. v. Union of India, (20117 SCC 338 )
24. Law Society of India v. Fertilizers and Chemicals, AIR 308, (1994 Ker)
25. Lubicon Lake Band v. Canada CCPR/C/38/D/167/1984
26. M. C Mehta v Union of India, 9 SCC 93,(SC (1998).
27. M.C. Mehta v. Kamal Nath, 1 SCC 388 (1997)
28. M.C. Mehta v. Union of India 9 SCC 589, (SC 1998)
29. M.C. Mehta v. Union of India, 9 SCC 589,(SC (1998).
30. M.C. Mehta v. Union of India, AIR 965, (SC 1987)

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31. Madhu Kishwar v. State of Bihar AIR 1864, SC 1996)
32. MC Mehta v. Union of India, 8 SCC 132 (2012)
33. MC Mehta v. Union of India, AIR 1086, (SC 1987).
34. Mohammed Ishaq v. S. Kazam Pasha, 1 SCC (Cri.) 721.
35. Nar Singh Pal v. UOI,3 SCC 589,(SC 2000).
36. Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1, (SC 1978).
37. Narmada Bachao Andolan v. Union of India , (2000) 10 SCC 664
38. Narmada Bachao Andolan v. Union of India, AIR 3751, (2000 SC)
39. Nilabati Behera v. State of Orissa, AIR 1960,( SC 1993)
40. NTPC Ltd. and Anr. v. State of Uttar Pradesh and Ors 2011(11) ADJ 390.
41. Olga Tellis v Bombay Municipal Corporaion, AIR 180, (SC 1986)
42. Orissa Mining Corporation v. Ministry of Environment and Forests, 6 SCC 476, ( SC
2013) .
43. P Rami Reddy v. State of Andhra Pradesh, AIR 1626,(SC 1988);
44. P. N. Kumar v. Municipal Corporation of Delhi,4 SCC 609, ( SC 1987).
45. Prem Chand Garg v. Excise Commissioner, AIR 996, (SC 1963).
46. PUDR v. UOI, AIR 1473,( SC 1982
47. P.A. Jacob v. Supt. of Police, Kottayam, AIR 1, (Ker 1993); Murli S Deora v. Union
of India, W.P.(C) 316 of 1999.
48. Paramanand Katara v. Union of India, AIR 2039, (SC 1989); State of Punjab v. Ram
Lubhaya Bagga, AIR 1703,( SC 1998).
49. R. (Greepeace Ltd) v. Secretary of State for Trade and Industry
50. Research Foundation for Science Technology National Reserve Police v. Union of
India, 10 SCC 510. (2005)
51. Romesh Thappar v. The State of Madras, AIR 124, (SC 1950).
52. Romesh Thappar v. The State of Madras, AIR 124, ( SC 1950).
53. Rameshwar Prasad v. Union of India, 3 SCC 1 (1994).
54. Rudresh Naik v. Goa State Coastal Zone Management Authority NGT Appeal No.
20/2013..
55. Rudul Shah v. State of Bihar AIR 1086, (SC 1950).: (1983) 4 SCC 141,
56. Rural Litigation Entitlement Kendra v. State of Uttar Pradesh, AIR 652,( 1985 SC) .
57. S.P Gupta v. UOI, AIR 149, (SC 1982)
58. Sahibzada Saiyed Muhammed Amirabbas Abbasi v. TheState of Madhya Bharat, AIR
768,( SC 1960)
59. Samatha v. State of Andhra Pradesh, 8 SCC 191, (1997)
60. Secretary, Ministry of Information and Broadcasting v.Cricket Association of Bengal.
AIR 1995 SC 1236.
61. Shantistar Builders v. Narayan Khimalal Totame, AIR 180, (SC 1986).
62. State of Punjab v. Mahinder Singh Chawla, S.L.P. (C) Nos. 12945 and 18828 of 1996
63. State of Uttar Pradesh v. Mohammad Nooh, AIR 86, (SC 1958).
64. State of Uttar Pradesh v. Mohammad Nooh, AIR 86, (SC 1958).
65. Sterlite Industries (India) Ltd. v. Union of India, 4 SCC 575 (2013).
66. Subhash Kumar v. State of Bihar , AIR 420, SC 1991.
67. Tilokchand Motichand v. H.B. Munshi, AIR 878,(SC 1970).

8
68. T. Damodar Rao v. The Special Officer, Municipal Corporation, AIR 171, (1987 AP).
69. T.N. Godavarman Thirumulkpad v. UOI, , 2006 WP(C) No. 202 of 1995. Tata Sons
Limited v. Greenpeace International and Anr ,2011 (45) PTC 275 (Del)
70. Union of India v. Association of Democratic Reforms, AIR 2002 SC 2112
71. Union of India v. Paul Manickam, AIR 4622, ( SC 2003) .
72. Utkarsh Mandal v. Union of India, WP No. 9340/2009.
73. Vellore Citizens Welfare Forum v. Union of India, 5 SCC 647, (1996 SC).
74. Virender Gaur v. State of Haryana, 2 SCC 577, (SC 1955).

STATEMENT OF JURISDICTION
It is most humbly submitted that the Petitioner has approached this Honble Supreme Court
under Article 321 of the Constitution of Soleti on grounds of violation of fundamental rights
by the Government of Soleti.
The petitioner most humbly and humbly submits before the jurisdiction of the present court
and accepts that it has the power and authority to preside over the present case.
1 Article 32 in The Constitutionitution 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
Constitutionitution.

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STATEMENT OF FACTS
FACTUAL BACKDROP
I.
In January 2014, one of the mineral Sona was found in the soil of the northwestern region of Gaur. Sona is one of the essential raw materials which are used
in the manufacturing process of Mineral Oils. Mineral Oil has been part of
extensive imports done by Soleti from the west. Considering the grave use of such
a product, the economy of Soleti will be highly benefitted if such product would
be manufactured in the country itself.
II.
The Government decided to initiate exploration and set up a big manufacturing

plant to manufacture mineral oil in state of Gaur. To serve the purpose,
Government delegated the task to NGAO (Natural Gas and Oil) Corp, a PSU of
Soleti, to set up a manufacturing unit to extract and process Sona.
III.
The commencement of the construction of site began in April 2014. Around the
end of 2014 of the site being set up, there were constant complaints by the people
living in and around residential areas regarding outbreak of respiratory problems
due to the dust and fumes emitting from the site. The high level of noise caused by
the construction work was also a nuisance to the neighborhood especially during
night times.
IV.
According to the report of ECA (Environment Concerned Agency), an NGO

working in Gaur itself in June 2014 highlighted two areas of concern that the site
had caused:
The construction resulted in huge deforestation and emissions of carbon gases. It also
caused the wildlife to suffer, in a way that migratory birds were found less during the
monsoon of 2014, Leopards venturing into residential areas etc. (Refer Annexure B).
The gases released in the area resulted in drastic climatic change (Refer Annexure C
& D). Also river Suhu was being contaminated and polluted because of all these
actions. This largely affected Aryans Suhu was their prime source of food and water.
V.
In May 2015, after majority of construction was completed with, a flood broke out
originating from the Farabian Sea, in the west, majorly affecting the state of Gaur.
The flood added more problems to the civilization and wild-life of the state as the

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forest cover was considerably reduced. The encroachments in the forest cover
increased as people sought shelter, resulting in more deforestation.
VI.
Within a month of the disaster, the area became a chaos as the reserved area of the
forest depleted and the civilization and wild-life was affected. Further, climatic
change and contaminated river Suhu added to the problems.
PROCEDURAL BACKDROP
I.
The Wildlife Advisory Board directed the closure of the manufacturing

plant/construction site of NGAO under the ambit of Environment, Wildlife & Air
legislations of Soleti by the end of June 2015.
II.
The Court on appeal by NGAO struck down the closure order and ordered NGAO
to install necessary pollution control equipment to protect people and the
environment from the hazards of air pollution. The court further directed a disaster
management committee, having forest officers and experts to evaluate the harm
caused to wildlife in Gaur.
III.
However, in October 2015, ECA and other NGOs along with the leader of Aryans
filed a Public Interest Litigation (PIL) before the Supreme Court of Soleti against
the Union of Soleti and NGAO. Inter alia, the petitioner also submitted that the
widespread deforestation & pollution in Gaur due to the construction of
manufacturing unit by NGAO has largely affected the economic, cultural and
social life of Aryans. Compensation for the same was also sought.
IV.
The Supreme Court has posted the matter for final hearing on the November 20,
2015.

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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?

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SUMMARY OF ARGUMENTS
I.
Whether the PIL filed by Environment Concerned Agency (ECA) is

maintainable or not?
The petitioners humbly submit that the instant PIL is maintainable under Article 32 of the
Indian constitution. This argument is fourfold. Firstly the petitioners have a bona fide interest
and hence they have a locus standi . Secondly, the fundamental rights of the citizens have
been violated. Thirdly, the cases that impose a rule of exhaustion of local remedies are not
binding upon this Court. Fourthly, there is a Constitutional obligation on this Court to protect
fundamental rights. In any case, the alternative remedies are not equally efficacious.
II.
Whether the Government of Soleti is liable for environment degradation and

is obliged to pay compensation to the Aryans?
The Project violates several fundamental rights including the right to shelter, livelihood,
religion and culture by displacing the Tribal Communities from their homes and lands that are
sacred to them. Further, the right to health and right to wholesome environment guaranteed
under Art. 21 of the Constitution are also violated because of the polluting nature of
extraction process. Additionally, the lack of a proper public hearing violates their right to
information.
The Environmental Clearance given to NGAO is invalid for three reasons: first, the
mandatory public hearing was not conducted; second, the EIA was conducted in violation of
PESA,; and third, it suffers from Wednesbury unreasonableness
In the instant case, NGAO is liable for non-compliance with the precautionary principle;
since no preventive measures were taken by NGAO 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

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WRITTEN SUBMISSIONS
I.
Whether the PIL filed by Environment Concerned Agency (ECA) is

maintainable or not?
The petitioners humbly submit that the instant PIL is maintainable under Article 32 of the
Indian constitution. This argument is fourfold. Firstly the petitioners have a bona fide interest
and hence they have a locus standi [1.1]. Secondly, the fundamental rights of the citizens
have been violated [1.2]. Thirdly, the alternative remedies available to the Petitioners are not
equally efficacious.[1.3]. Lastly, In any event, the alternative local remedy is not equally
efficacious[1.4].
1.1. That the petitioners have a locus standi.
Locus standi is the right of a party to appear and be heard on the question before any
tribunal. 2It means the legal capacity to invoke the jurisdiction of the court.
The SC has ruled that to exercise its jurisdiction under art 32, it is not necessary that the
affected person should personally approach the court. The court can itself take cognizance of
the matter and proceed suo motu or on a petition of any public spirited individual or body3.
In landmark cases 4 the SC has evolved a new rule viz., any member of the public, acting
bona fide and having sufficient interest can maintain an action for redressal of public wrong
or public injury. In S.P Gupta v. UOI5 the court observed that, any member of the public
having sufficient interest can maintain an action for judicial redress for public injury arising
from breach of public duty or from violation of some provisions of the constitution or the law
and seek enforcement of such public duty and observance of such constitutional or legal
provision.
2 Whartons Law Lexicon, 15th Edn. 2009, p.1019.
3 Bodhisattwa Gautam v. Subbra Chakraborty, AIR 722, (SC 1996).
4 S.P Gupta v. UOI, AIR 149, (SC 1982); PUDR v. UOI, AIR 1473,( SC 1982); Bandhua
Mukti Morcha v. UOI, AIR 802, (SC 1986).
5 AIR 149, (SC 1982).

15
However, the member of the public should not be a mere busybody or a meddlesome
interloper but one who has sufficient interest in the proceeding. In the instant matter, the
petitioners i.e. ECA and other NGOs along with leader of Aryans have sufficient interest.
And are concerned about the environment and the impact it shall create on the public if
hampered.
Furthermore, even if the petitioner in fact moved to the Court in private interest and for the
redressal of his personal grievances, or to seek his personal revenge, Court can proceed to
enquire the state of affairs of the subject of the litigation in the interest of justice and in
furtherance of justice. Individual conduct of the party would not be of any relevance when the
Court entertains PIL and construed not only provisions of any statute but also had taken into
consideration the subsequent events. 6If the court finds the question raised to be of
substantial public interest, the issue of locus standi of the person placing the relevant
facts and materials before the court becomes irrelevant. 7
Therefore, locus standi of the petitioners should not be in question.
1.2 That there was violation of fundamental rights of the Aryans
It is humbly submitted that there was violation of fundamental rights of the citizens due to the
acts of the government. The fundamental rights are fundamental in the sense that human
liberty is predicated on their availability and vice versa, and thus they cannot be waived.8
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 life9 , which includes right of food, and
6 Ashok Lanka v. Rishi Dixit,5 SCC 598, (SC 2005).

7T.N. Godavarman Thirumulkpad v. UOI, , 2006 WP(C) No. 202 of 1995.
8 Basheshar Nah v. I.T. Commissioner, AIR 149, (SC 1959) ; Olga Tellis v Bombay
Municipal Corporaion, AIR 180, (SC 1986) ; Nar Singh Pal v. UOI ,3 SCC 589,(SC 2000).
9 Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844.

16
reasonable accommodation to live in10 and the right to a wholesome environment.11Also
ICCPR12, UDHR13 and ICESCR14 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 19.15 Article 14 strikes at
arbitrariness because it negates equality16 and permeates the entire fabric of Rule of Law17.
Therefore, every action of the State must be guided by reason for public good and not by
whim, caprice, and abuse of power.18Article 19 provides that a restriction can be
characterized to be reasonable if it strikes a balance between the fundamental right and
restriction imposed thereon.19
The fundamental rights are intended not only to protect individual rights but they are based
on high public policy. Liberty of the individual and the protection of the fundamental rights
are the very essence of the democratic way of life adopted by the constitution, and it is the
privilege and the duty of this court to uphold those rights.20
Violation of fundamental rights is sin qua non of the exercise of the right conferred by
art.32 .21When once the court is satisfied that the petitioners fundamental right has been
infringed, it is not only its right but also the duty to afford relief to the petitioner, and he need
not establish either that he has no other adequate remedy, or that he has exhausted all
10 Shantisar Builders v. Narayanan Khimalal Totamen, AIR 1990 SC 630.
11 Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.
12 Article 6, ICCPR.
13 Article 3, UDHR.
14 Article 11, ICESCR
15 Maneka Gandhi v. Union of India. AIR 1978 SC 597.
16 Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021.
17 Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
18Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514.
19 Om Kumar v. Union of India, AIR 2000 SC 3689.
20 Daryao v. State of UP, AIR 1457, (SC 1961
21 Federation of Bar association in Karnataka v UOI, AIR 344, (SC 1981).

17
remedies provided by law, but has not obtained proper redress. When the petitioner
establishes infringement of his FR, the court has no discretion but to issue an appropriate writ
in his favor.22
In Bandhua Mukti morcha23 the apex court has clarified that procedurally, under article 32,
it is not bound to follow the ordinary adversary procedure and may adopt such procedure as
may be effective for the enforcement of the FR.
1.3. There is no requirement for the Petitioner to exhaust local remedies

a) The right under Art. 32 is not subject to the exhaustion of local remedies
The right to approach this Hon'ble Court in case of violation of fundamental rights is itself a
fundamental right enshrined in Art. 32.24 In Prem Chand Garg, it was held that this right is
absolute and may not be impaired on any ground.25 Further, unlike in Art. 226, the remedy
provided by Art. 32 is a fundamental right and not merely a discretionary power of the
Court.26 Moreover, this Honble Court has on multiple occasions expressly rejected an
argument that called for exhaustion of local remedies.27 Therefore, it submitted that it is not
open to this Court to carve out exceptions when there are none in the text.
Furthermore, judicial orders are not amenable to writ jurisdiction under Art. 32.28
Consequently, if a violation of Art. 32 takes place by this Court's rejection of the instant
22 Supra note 7.
23 AIR 814, (SC 1984)
24 India Constitution. Art. 32.
25 Prem Chand Garg v. Excise Commissioner, AIR 996, (SC 1963).
26 Daryao v. The State of Uttar Pradesh, AIR 1457, (SC 1961); Tilokchand Motichand v.
H.B. Munshi, AIR 878,(SC 1970).
27 Kharak Singh v. State of Uttar Pradesh, AIR 1295, ( SC 1963); Romesh Thappar v. The
State of Madras, AIR 124, (SC 1950).
28 Sahibzada Saiyed Muhammed Amirabbas Abbasi v. The State of Madhya Bharat, AIR
768,( SC 1960); Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1, (SC 1978).

18
petition, the petitioners will have absolutely no remedy for such violation of their
fundamental right. Hence, the Petitioner submits that a liberal approach should be adopted,
erring on the side of caution, in cases where the Court rejects a petition under Art. 32.
b) The rule of exhaustion of local remedies is not binding on this Hon'ble Court
Admittedly, cases such as Paul Manickam,29Kanubhai,30and PN Kumar31require the
exhaustion of local remedies before approaching the Court under Art. 32. However, it is
submitted that this Hon'ble court must not be constrained by these decisions for the following
reasons: First, this self-imposed restraint is merely a rule of convenience and discretion32 and
does not oust the jurisdiction of this Court under Art. 32.33 Secondly, these cases are per
incuriam as they were rendered in ignorance of previous decisions by higher benches of this
Hon'ble Court that expressly rejected such a rule. Finally, Art. 32(4) specifically provides that
this right may not be suspended except by a constitutional provision.34 A rule of self-imposed
restraint by the judiciary that requires exhaustion of local remedies constitutes an extraconstitutional partial suspension and is therefore, unconstitutional.
c) This Hon'ble Court has a constitutional duty to entertain the instant petition
The Constitutional obligation of this Hon'ble Court as the guarantor of fundamental rights has
been interpreted broadly35 and as one that exists independent of any other remedy that may be
available.36 This is particularly true in cases of grave public importance, such as
environmental litigation where relief may not be denied on mere technical grounds.
29 Union of India v. Paul Manickam, AIR 4622, ( SC 2003) .
30Kanubhai Brahmbhatt v. State of Gujarat, AIR 1159, ( SC 1987).
31 P. N. Kumar v. Municipal Corporation of Delhi,4 SCC 609, ( SC 1987).
32 State of Uttar Pradesh v. Mohammad Nooh, AIR 86, (SC 1958).
33 Mohammed Ishaq v. S. Kazam Pasha, 1 SCC (Cri.) 721.
34 India Constitution. Art. XXXII, 4.
35 MC Mehta v. Union of India, AIR 1086, (SC 1987).
36 Nilabati Behera v. State of Orissa, AIR 1960,( SC 1993); Kharak Singh v. State of Uttar
Pradesh, AIR 1295,( SC 1963).

19
Consequently, it is submitted that a refusal to entertain the instant petition would be
inconsistent with the aforesaid obligation.37
1.4. In any event, the alternative local remedy is not equally efficacious
The respondents may submit that the NGT is better equipped to hear this case, than this
Honble Court since it has expert members who can evaluate scientific claims. However, it is
submitted that the issues herein do not just relate to the procedural aspects of granting
environmental clearances. While this falls squarely within the jurisdiction of this Court under
Art 32, the NGT is not equipped to assess claims of violation of fundamental rights. Its
jurisdiction is circumscribed to adjudicating upon harm to the petitioner due to the
environmental consequences, damage to the environment and damage to property.38
Therefore, while it may be legal for the NGT to hear this case, it is not expedient or
efficacious.
Moreover, under the NGT Act only the person aggrieved by an order made under the FCA
and/or EPA can seek relief from the Court. 39 This bars any public spirited person or
organization, such as the Petitioner, from approaching the NGT due to the rigidity of the
locus standi requirement. On the contrary, the relaxation of locus standi rules by this Honble
Court ensures that this dispute may be filed as a Public Interest Litigation (PIL). Further, the
petitioners submit that the persons whose Fundamental Rights have been affected are Tribal
Communities who are unaware of their Fundamental Rights and the legal procedure to seek
remedies. It is therefore imperative that the petition be adjudicated upon by the Supreme
Court so that concerned environmental groups like the Petitioner may render able assistance
to the Court.
In any case, the NGT is ill-equipped to deal with the petition in its entirety as its provisions
pertain only to the resolution of environmental disputes. While the NGT may have
jurisdiction for adjudicating upon orders passed under the FCA and EPA,40 it does not have
37 Kharak Singh v. State of Uttar Pradesh, AIR 129, (SC 1963);. Romesh Thappar v. The
State of Madras, AIR 124, ( SC 1950).
38 National Green Tribunal Act 2(1)(m) (2010).
39 National Green Tribunal Act 16 (2010).
40 National Green Tribunal Act 16 (2010).

20
jurisdiction to decide upon issues arising out of FRA and PESA. It is submitted that these
questions are central to the petition as they concern statutory rights granted to the Tribal
Communities. This distinguishes the petition from a simple environmental dispute. Moreover,
it is illogical to split the petition because the issues of rights are integral and emanate from
the orders being challenged. Further, it will cause great inconvenience to the Petitioner to
agitate the matters in two different Courts. Thus, it is submitted that only the Supreme Court
can render effective justice in the instant case.
II.
Whether the Government of Soleti is liable for environment degradation and is

obliged to pay compensation to the Aryans?
2.1 That there was violation of fundamental rights of the citizen
It is submitted that implementation of the Project would result in a violation of multiple

fundamental and statutory rights that emanate therefrom. These rights include the right to
shelter under Art. 21 [A], the right to clean environment under Art. 21 [B], the right to a clean
health under Art. 21 [C], the right to livelihood under Art. 21 and Art. 19(1)(g)[D], the
cultural rights under Art. 29 [E] and finally, the right to information under Art. 19(1)(a) [F].
A. The lack of an enforceable rehabilitation policy violates the right to shelter.

The right to rehabilitation of displaced persons is a part of Art. 21.41In cases of forced
displacement, it has been held rehabilitation of the oustees is a logical corollary of Article
21".42 Further, since there is a void in domestic law, international law instruments become
relevant. This is especially true in issues concerning the environment and human rights.43
Therefore, the Guiding Principles on Internal Displacement must be considered.
41 Bal Kishan v. State of Haryana, W.P. No. 596 of 2014; Sudama Singh v. Govt. of Delhi,
W.P. (C) No. 8904/2009.
42 State of Bihar v. Prem Kumar Singh, L.P.A/702/2012 IN (CWJC/3114/2012); N .D.
Jayal v. Union of India, (2004) 9 SCC 362.

21
In the present case, there is no plan for rehabilitation or measures for resettlement for any of
the displaced tribal communities.
Accordingly, non-compliance of the aforesaid condition can at most lead to cancellation of
the Environmental Clearance, without providing any remedy to the displaced persons.
Finally, and in any event, measures for rehabilitation must be taken prior to the
implementation of the Project, which is not true in this case.44
B. The Mining Project violates the right to a wholesome environment

It is widely accepted that the right to life under Art. 21 also embraces the right to live in a
wholesome, pollution-free environment.45This has to be read in conjunction with Art. 48A
and Art. 51A (g) that imposes a duty on the State to preserve and improve the environment.46
Further, this is in line with India's international obligations.47
It is submitted that the extraction operations in the forests of Dhir violate the aforesaid right
to wholesome environment in two ways.
First, the project violates right to pollution-free environment by exposing the public at large
to radiation. The compulsory exposure of unwilling persons to pollution48 has been held to
violate Art. 21. Secondly, it is submitted that the Project would result in an ecological
imbalance49 and destroy the guarantee of a wholesome environment. This Court has a duty to
43 Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd,13 SCC 30, (SC
2008).
44 Narmada Bachao Andolan v. Union of India, AIR 3751, (2000 SC)
45 Subhash Kumar v. State of Bihar, AIR 420, (1991); M.C. Mehta v. Union of India 9
SCC 589, (SC 1998); Virender Gaur v. State of Haryana, 2 SCC 577, (SC 1955).
46 India Constitution. Art. 48A ; India Constitution. Art. 51 A, cl. (g). ; M.C. Mehta v. Union
of India, 9 SCC 589, (SC 1998).
47 Rio Declaration on Environment and Development (1992).
48 P.A. Jacob v. Supt. of Police, Kottayam, AIR 1, (Ker 1993); Murli S Deora v. Union of
India, W.P.(C) 316 of 1999.
49 Rural Litigation Entitlement Kendra v. State of Uttar Pradesh, AIR 652,( 1985 SC) .

22
guard against irreversible ecological damage.50Gaur is more of a tourist destination
considering its topography and diverse wildlife. It is submitted that the extraction project
would disturb this and irreversibly damage the ecology. Therefore, it violates the guarantee of
right to wholesome environment.
The Respondent may rely on the lack of scientific consensus on the exact harms caused to the
environment by extraction and manufacture of Sona. However, as held in Vellore Citizens
Forum,51 the onus of proof is on the Respondents to show that its actions are environmentally
benign.52Further, this Court in M C Mehta imposed on the State, a duty to anticipate, prevent
and attack the causes of environmental degradation.53Therefore, it is not open to the
Respondent to depend on scientific uncertainty to push forth a project that violates the right
to life of several people.
C. The Mining Project violates the right to health

The right to health has been held to be an integral to the meaningful right to life, and is thus,
protected under Art. 21.54Further, it is both a constitutional obligation under Art. 4755 and an
international obligation to allow citizens to enjoy the highest standard of health. Indeed, this
50 Goa Foundation v. Diksha Holdings Pvt. Ltd., (1) Bom. C.R 2001, (S.C. 2001); T.N.
Godavarman Thirumulpad v. Union of India, 1 SCC 1, (SC (2006).
51 Vellore Citizens Welfare Forum v. Union of India, 5 SCC 647, (1996 SC).
52 M. C Mehta v Union of India, 9 SCC 93,(SC (1998).
53 M.C. Mehta v. Union of India, 9 SCC 589,(SC (1998).
54 State of Punjab v. Mahinder Singh Chawla, S.L.P. (C) Nos. 12945 and 18828 of 1996,
Paramanand Katara v. Union of India, AIR 2039, (SC 1989); State of Punjab v. Ram
Lubhaya Bagga, AIR 1703,( SC 1998).
55 CESC Ltd. v. Subash Chandra Bose, AIR 573, (SC 1992).

23
obligation has been interpreted to include the prevention of pollution by extractive
industries56 and ensuring a hygienic environment.57
In the instant case, it is submitted that the Sona extraction and manufacture activity in the
north-western region of Gaur affects the health of tribal communities living in and around the
vicinity of the forest.
Moreover, the mere condition of developing an emergency response procedure is
insufficient as the tribal communities still suffer from slow poisoning by the polluted
atmosphere58 and are compelled to live under the dark shadow of a genocide.59
The Respondent might attempt to justify the Project on the ground of employment and
revenue generation. However, this Court in MC Mehta has explicitly laid down that life and
public health override considerations such as unemployment and revenue generation. The
Respondent may also seek to rely on the scientific uncertainty surrounding the exact
consequences on mining on public health. However, it is submitted that the Court must adopt
the precautionary principle in matters of public health also. Indeed, there is a global trend
towards the same.60 Moreover, the courts in India have recognised that it is impossible to
eliminate hazards altogether, even with the most sophisticated safety and alarm systems.61
This is particularly true in a developing country like Soleti.62In light of the foregoing, it is
submitted that the right to health is negated by the project under dispute.
56 ICESCR General Comment 12 on Art. 11 (1966).
57 Gaur v. State of Haryana,2 SCC 577, (SC 1995).
58 T. Damodar Rao v. The Special Officer, Municipal Corporation, AIR 171, (1987 AP).
59 Law Society of India v. Fertilizers and Chemicals, AIR 308, (1994 Ker)
60 See THE PRECAUTIONARY PRINCIPLE: PROTECTING PUBLIC HEALTH, THE
ENVIRONMENT AND THE FUTURE OF OUR CHILDREN, WHO Europe (2004)
available at http://www.euro.who.int/__data/assets/pdf_file/0003/91173/E83079.pdf for the
Resolution on the Precautionary Principle, endorsed by Heads of Government at General
Affairs Council at Nice (2000); Also see Public Health and Well-being Act, Australia (2006).
61 M.C. Mehta v. Union of India, AIR 965, (SC 1987); Bayer (India) Limited v. State of
Maharashtra, AIR 290,(Bom H.C. 1995).
62 Bayer (India) Limited v. State of Maharashtra, AIR 290, (Bom H.C. 1995).

24
D. The Mining Project violates the right to livelihood

The right to livelihood, being an important facet of the right to life is protected under Art.
21.63 With respect to forest dwelling tribal communities, this is also statutorily guaranteed in
the FRA.64 In the instant case, the tribal communities' livelihood includes activities such as
apiculture, gathering of herbs, fruits and flowers, and collection of gum dust. Therefore, it is
submitted that the mining project, by displacing the tribal communities from their land and
forest deprives them of their right to livelihood. The right of the indigenous people to settle
and reside and to own the property65 anywhere in the territory of Soleti, especially in the Dhir
forests guaranteed under Article 19(1) (e) has been violated, since; there was a lot of
encroachment in the forest on account of deforestation. Further when the Government
instrumentality, due to their negligence there were lot of encroachments in the forest, which
violated their right to reside under Article 19 of the Constitution.
The Respondent may take up the defence that the tribal communities have been given access
to the Forest for their livelihood requirements. However, it is not mere access but actual
availability and possession of land that is indispensable to the livelihood and sustenance of
tribal communities.66Moreover, the environmental degradation caused by extraction process
will inevitably have an adverse effect on livelihoods that are heavily dependent on the forest
ecosystem and forest produce.67 In any case, demand for exact evidence to show the loss of
livelihood by eviction is 'unrealistic'.68Indeed, the Supreme Court in Olga, advocated for the
use of common-sense and not strict proof of nexus between eviction and loss of livelihood.
63 Olga Tellis v. Bombay Municipal Corporation, AIR 180, (SC 1986); Shantistar Builders
v. Narayan Khimalal Totame, AIR 180, (SC 1986).
64 Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights)
Act 3(1) (2006)
65 UDHR Articles 17 as well as in Article 6 of the ICESCR.
66 P Rami Reddy v. State of Andhra Pradesh, AIR 1626,(SC 1988); Madhu Kishwar v.
State of Bihar AIR 1864, SC 1996); Samatha v. State of Andhra Pradesh, (1997) 8 SCC
191.
67 National Forest Policy (1988).

25
The Respondent may also submit that the Compassionate-Employment safeguard is sufficient
to ensure that right to livelihood is not deprived. However, it is submitted that this is
inadequate for two reasons. First, the safeguard in the EC is merely a guideline and not a
guarantee. Moreover, in the absence of stipulations like provision of vocational training, such
a safeguard is meaningless. Indeed, the Planning Commission of India has admitted that there
has been a failure to provide "alternative livelihoods to those displaced by developmental
projects". Second, even the safeguard is limited to one adult member per family and not to
every single person who may lose their livelihood.
E. The Mining Project violates the cultural rights
a) The Mining Project violates Art. 29
The tribal communities have a fundamental right to conserve their distinct culture.69 Since the
ARYANS are indigenous tribal communities living within the vicinity of Dhir forests, they
are forest dwelling Scheduled Tribes70 for the purposes of the FRA and are entitled to
certain statutorily guaranteed cultural rights.71 Moreover, recent precedents such as Orissa
Mining72 and Chewang Pintso Bhutia73 have recognized that tribals are entitled to protect
their rights under the FRA.
Moreover, this Court may liberally adopt principles from International Conventions since it is
an issue concerning 'human rights, environment, ecology and other second-generation or
68 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180; Shantistar Builders v.
Narayan Khimalal Totame, AIR 1986 SC 180.
69 Soleti Constitution. Art. 29, 1.
Act 2, cl.C.
Act 3(i), 3(k), 5(c) (2006); 4(d), Panchayats (Extension to Scheduled Areas) Act (1996).
72 Orissa Mining Corporation v. Ministry of Environment and Forests, 6 SCC 476, ( SC
2013) .
73 Chewang Pintso Bhutia v. State of Sikkim, W.P.(C) No. 22/2012.

26
third-generation rights'.74 Thus, international instruments that mandate recognition of
customary and cultural rights of indigenous people 75become relevant. In fact, in Lubicon
Lake Band, an energy exploration project that threatened the way of life and culture of the
indigenous community was held to violate the cultural rights guaranteed under the ICCPR. 76
F. The Mining Project violates the right to information
The petitioner submits that there exists a right to access environmental information.77 First,
this right has been recognized as a corollary to right to clean and hygienic environment under
Art 21 of the Indian Constitution.78 Second, the Courts have also recognized right to
information as an integral part of freedom of expression.79Finally, it is submitted that the
public trust doctrine,80 necessitates that the public be informed of any diversion of these
natural resources and be made known of its environmental consequences. Moreover, this
right is internationally recognized 81in conventions such as the Rio Declaration,82 where the
74 Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd, 13 SCC 30, (SC
2008).
75 ICCPR Art. 25 (1966), International Labour Organization (ILO) Convention on
Indigenous and Tribal Populations Convention No. 169 (1957); Convention on Biological
Diversity (1992).
76 Lubicon Lake Band v. Canada CCPR/C/38/D/167/1984
77 See SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND
POLICY IN INDIA 157-158 (2nd ed. 2002).
78 Right to information and community participation for protection of environment and
human health flows from Art 21 Research Foundation for Science Technology National
Reserve Police v. Union of India, 10 SCC 510. (2005)
79 Union of India v. Association of Democratic Reforms, AIR 2002 SC 2112; Secretary,
Ministry of Information and Broadcasting v. Cricket Association of Bengal. AIR 1995 SC
1236.
80 M.C. Mehta v. Kamal Nath, 1 SCC 388 (1997)
81 R. (Greepeace Ltd) v. Secretary of State for Trade and Industry, (2007) Environmental
Law Reports 29.
82 Rio Declaration on Environment and Development (1992).

27
right of the public to access information about the environment is recognized. This right is
imperative at the grass root level to aid environmental decision making,83particularly when a
decision may affect health, life or livelihood.84
In light of the foregoing, it is submitted that public hearing under EIA is one of the ways in
which the State realizes the citizens right to access environmental information. A public
hearing informs affected persons of the consequences of a project and elicit objections for the
same. Further, the EIA Notification necessitates dissemination of the EIA report85 to locally
affected persons so that the participation at public hearings is informed.
Therefore, it is submitted that Tribal Communities right to access information has been
curtailed.
2.2 THE ENVIRONMENTAL CLEARANCE IS INVALID
It is submitted that the Environmental Clearance given to NGAO is invalid since first, the
mandatory public hearing was not conducted. [A].Second, the EIA was conducted in violation
of PESA [B]; lastly, EC is struck by Wednesbury unreasonableness. [C].
Section 2(ii) (iv) of The FCA, 1980 provides that Central Government can only grants the
permission of deforestation for the non-forest purposes86 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. However, in the present case there has been non-application of
mind for granting the approval, considerable reduction of forest made it more susceptible to
natural disasters. It thus fails to meet the test of reasonableness under Article 19. Further, the
Government has acted arbitrarily by neglecting the rights of tribals and safeguarding the
rights of non-tribals, and thus, there has been violation of Article 14, on account of abuse of
power and arbitrariness in the actions of the Government
83 Information for Decision Making, Agenda 21 (1992).

84 Essar Oil Ltd. v. Halar Utkarsh Samiti, 2 SCC 27 (2003).
85 Centre for Social Justice v. Union of India, AIR 71, (Guj. HC 2001).
86 Section 2, FCA, 1980.

28
A. The mandatory public hearing was not conducted.
It is submitted that the grant of an EC is contingent upon compliance with all the essential
pre-requisites under the EIA Notification. Accordingly, a public consultation is required to
complete the EIA.87 It is submitted that the language in Section 7 is mandatory in nature and
not directory.88Thus, public consultation is an essential and non-derogable component of EIA,
the failure of which can render the EC invalid.89
It is submitted that the public consultation process in the instant case was defective since,
first, the Tribal Communities had the right to participate in the public hearing regardless of
property rights in the land; and secondly, in any case, the tribal communities possess property
rights within the Reserve Forest. Therefore, it is submitted that in the absence of an effective
public consultation process, the EC granted to NGAO is invalid.
a) No public hearing was given to all local affected persons
The right to participate in public hearing is not qualified by any property rights. Indeed, the
EIA Notification 90 have given a wide interpretation to public hearing to ensure the widest
possible participation to all affected people. The purpose of this is to gather all the concerns
of all local affected persons.91 In fact, one can be affected by a extraction project without
having any property rights. The Supreme Court in Sterlite Industries v. Union of India held
that a procedural impropriety can be a ground for quashing an environmental clearance if a
87 Environment Impact Assessment Notification 7(III) (2006).
88 "shall undertake Public Consultation" Environment Impact Assessment Notification
7(III) (2006). See SHYAM DIVAN, The Contours of EIA in India, WATER AND THE LAWS
IN INDIA 396 (Ramaswamy R. Iyer ed. 2009).
89 MC Mehta v. Union of India, 8 SCC 132 (2012); Utkarsh Mandal v. Union of India,
WP No. 9340/2009.
90 The Public Hearing shall be arranged in a systematic, time bound and transparent
manner ensuring widest possible public participation at the project site. Environment
Impact Assessment Notification Appendix IV (2006).
91 Environment Impact Assessment Notification 7 (2006).

29
mandatory requirement is violated.92 Thus, petitioner requests the Court to set aside the EC
granted to NGAO.
Further, the Respondent may suggest that deprivation of the public hearing component alone
does not necessarily vitiate the public consultation process as stakeholders still have the
option of submitting their concerns in writing. However, such an argument is unsustainable
on two grounds. First, public hearing has been interpreted to be mandatory component of
EIA process and second, for a public consultation to be meaningful and effective it must
ensure the widest participation of locally affected persons.93
Further, it is reasonable to assume that many of the STs and other TFDs are completely
unaware of their rights.94 Therefore, the public hearing serves the twin purpose of informing
them of the consequences of the proposed project and seeking their objections. In the absence
of a public hearing, it is unreasonable to presuppose that the STs and TFDs possess requisite
expertise to determine the consequences of the Project and make written objections to it.
b) In any event, tribal communities enjoy property rights in the Reserved Forest.
Assuming arguendo, property rights are a pre-requisite to take part in a public hearing
process, the petitioner submits that the Tribal Communities living in Gaur possess property
rights as granted by the Forest Rights Act. Further ILO Convention, which has been ratified
by Soleti, confers Tribal Communities with rights of ownership over the lands that they have
traditionally occupied.95With regard to the foregoing, the petitioner submits that the denial of
public hearing on the ground that the Tribal Communities do not have property rights is
erroneous. Therefore, the EC must be set aside.
92 Sterlite Industries (India) Ltd. v. Union of India, 4 SCC 575 (2013).

93 J. A.R. LAKSHMANAN, Thoughts on Environmental Public Hearings 2, Vol 17 STUDENT BAR REVIEW
(2005).
94 Orissa Mining Corporation v. Ministry of Environment and Forests, 6 SCC 476 (2013).
95 ILO Convention on the Indigenous and Tribal Populations Convention Art. 11 (1957).

30
B. The EIA was conducted in violation of PESA
The PESA makes the Gram Sabha96 as the focal point of tribal self-governance. 97Section 4(d)
of the PESA acknowledges the competence of the Gram Sabha to safeguard and preserve
the traditions and customs of the people, their cultural identity, community resources It is
submitted this provision is inviolable and reveals that the Gram Sabha is clothed with
enormous plenary powers98 to safeguard its traditions and customs. Since the Mining Project
infringes on the customs and community resources of the Tribal Communities, the logical
corollary of Section 4(d) is that the Gram Sabha must be mandatorily consulted.99 In the
present case, there was no consultation with the Gram Sabhas of the affected Tribal
Communities. Therefore, Respondent has acted in contravention of the law laid down under
PESA.
C. The EC suffers from Wednesbury unreasonableness

The Wednesbury principle, as laid down Rameshwar Prasad v. Union of India100 determines
an administrative action to be unreasonable if it, inter alia, has ignored a very relevant
material which it should have taken into consideration. Further, in Lafarge Umiam Mining
(P) Ltd. v. Union of India,101 the Supreme Court stated that it will review the decision of the
96 India Constitution. Art. 243(b) (1950) and Panchayats (Extension to Scheduled Areas) Act
4(c) (1996) define a Gram Sabha as a body consisting of person registered in the electoral
rolls for the Panchayat at the village level.
97 SAIRAM BHAT, NATURAL RESOURCES CONSERVATION LAW 455 (2010).
98 India Constitution. Art. 40 (1950): This is in contrast with the Gram Sabhas or Panchayats
in general areas who are merely endowed with powers as may be necessary to enable them
to function as institutions of self-government.
99 AJITHA S. GEORGE, The Paradox of Mining and Development, LEGAL GROUNDS NATURAL
RESOURCES, IDENTITY, AND THE LAW IN JHARKHAND 167 (Nandini Sundar ed., 2009).
100 Rameshwar Prasad v. Union of India, 3 SCC 1 (1994).

101 Lafarge Umiam Mining (P) Ltd. v. Union of India, (20117 SCC 338 )

31
MoEF to see if all relevant factors and the legislative policy underlying the law have been
strictly considered before reaching the decision.
It is submitted that the decision to grant the EC without considering the material from public
hearing is unreasonable as per the Wednesbury principle. One of the duties of the committee
during appraisal is to consider all the objections raised during a public hearing and respond to
them.102The failure to consider all objections and give a reasoned order renders the decision
of the committee vulnerable to non-application of mind.
Therefore, the he appraisal process i.e. the EIA is vitiated by the committee responsible for
sanctioning the EC which should be set aside.
2.3 Pollution caused by respondents violated Fundamental Rights of people
The Union of Soleti and NGAO has caused environmental degradation by their respective
acts causing air, noise and water pollution and are therefore, liable to pay damages for the
violation of fundamental rights.
Climate Change means a change in climate, attributed directly or indirectly to human
activity that alters the composition of the global atmosphere over comparable periods of
time.103 The Union of Soleti is liable for the climate change induced due to the activities
orchestrated by the State.
Pollution constitutes wrongful contamination in the environment in such concentrations as
may be or tends to be injurious to human beings or other living creatures or plants or property
or environment104, thereby violating Article 21 of the Constitution.
102 Samatha v. State of Andhra Pradesh, 8 SCC 191, (1997); Rudresh Naik v. Goa State
Coastal Zone Management Authority NGT Appeal No. 20/2013; detailed scrutiny of the
application and other documents like theoutcome of the public consultations including
public hearing proceedings Environment Impact Assessment Notification 7 (2006).
103 Article 1, United Nations Framework Convention on Climate Change, 1992.
104 Section 2 (a) The Air (Prevention and Control of Pollution) Act 1981.

32
2.3.1. Air Pollution caused by NGAO
Article 21 of the Constitution ensures the fundamental right to live decently and to enjoy
clean air.105 The setting-up of the construction site in the proximity of the area without any
appropriate pollution-control equipment is indicative of NGAOs disregard for the
precautionary norms to be followed for public safety. Due to this, the inhabitants suffered
from severe respiratory problems within few months of the site being set up, thus causing air
pollution, and violating the right to clean air guaranteed under Article 21 of the Constitution.
The UNFCCC aims for the stabilization of greenhouse gas concentrations in the atmosphere
at a level that would prevent dangerous anthropogenic interference with the climate106. Union
of Soleti despite of ratifying it , failed to bring under control the anthropogenic greenhouse
gases and carbon emissions thereby causing pollution107 , haze, sea water intrusion and the
erratic climatic conditions. Further, the Government orchestrated deforestation of the
reserved forest areas, thereby causing air pollution.108
2.3.2. Noise Pollution caused by NGAO
Noise pollution is described as an unwanted sound if it exceeds a reasonable limit and
contaminates the environment109, causes nuisance and affects the health of a person110, thereby
violating Article 21 of the Constitution. In the instant case, construction noise caused by
NGAO, especially during night time became a nuisance to the people residing in the vicinity
105 Subhash Kumar v. State of Bihar , AIR 420, SC 1991.

106 Article 2, United Nations Framework Convention on Climate Change, 1992.
107 Section 2 (a)The Air Pollution (Prevention) Act 1981.
108 NTPC Ltd. and Anr. v. State of Uttar Pradesh and Ors 2011(11) ADJ 390.
109 In Re: Noise Pollution- Prevention of Environment and Sound Pollution v. UOI and
Anr, AIR 2005 SC 3136
110 Free Legal Aid Cell Shri Sugan Chand Agarwal v. Government of National Territory
of Delhi, AIR 2001 Del 455.

33
of construction site as it resulted in violation of their right to silence, sleep, and rest111,
guaranteed under Article 21 of the Constitution.112
2.3.3. Water pollution by Union of soleti
Pollution" means such contamination of water or such alteration of the physical, chemical or
biological properties of water or such discharge of any sewage or trade effluent or of any
other liquid, gaseous or solid substance into water (whether directly or indirectly) as may, or
is likely to, create a nuisance or render such water harmful or injurious to public health or
safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the
life and health of animals or plants or of aquatic organisms;113
In the present case, River Suhu was being contaminated and polluted because of the project
being undertaken in the reserved are like release of harmful gases and waste material. This
largely affected Aryans Suhu was their prime source of food and water thereby, violating their
fundamental rights.
2.3.4 Danger to Migratory Birds and Leopards in their natural habitat:
The above species being an endangered species have been declared as Vulnerable114.
Therefore, their protection is considered to be of absolute115 and paramount importance116
under conventions such as CITES117, CMS118 and the Wildlife Protection Act, 1972.
111 Farhad K. Wadia v.Union of India and Ors. (2009) 2 SCC 442.
112 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.
113 Section 2 (e) The Water (Prevention and Control of Pollution) Act 1974).
114 International Union for Conservation of Nature Red Data Book at
http://www.iucnredlist.org/
115 Schedule I, Indian Wildlife (Protection) Act, 1972
116 Tata Sons Limited v. Greenpeace International and Anr ,2011 (45) PTC 275 (Del)

34
In the present case, there has been a substantial risk to the survival and thriving of these
endangered species due the close proximity of the construction site to the surrounding nesting
and breeding habitats. Further, there was a danger of them being killed as people made
encroachments upon their habitat as the forest cover was reduced. Therefore, the Government
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 migratory birds and leopards.
2.4 Damages to be awarded
Non-Compliance of Precautionary Principle:
The polluter pays principle119 imposes absolute liability for harm caused to the environment,
to compensate the victims of pollution and to pay the cost of restoring the environment.120The
burden of maintaining the said balance lies on the unit which has caused the pollution121.
Therefore, in the instant case, NGAO is liable for non-compliance with the aforementioned
principle; since no preventive measures were taken by NGAO 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 compensated122.
Also, the Government of Soleti must be directed to take corrective measures in order to
restore the environment.
117 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
118 95Memorandum of Understanding II signed by India under The Convention on
Migratory Species(CMS).
119 Charan Lal Sahu v. Union of India (1990)1 SCC 613
120 Indian Council for Enviro Legal Action v. UOI, (1996) 3 SCC 212; M C Mehta v.
UOI, (1987) 1 SCC 395.
121 Narmada Bachao Andolan v. Union of India , (2000) 10 SCC 664
122 Rudul Shah v. State of Bihar AIR 1086, (SC 1950).: (1983) 4 SCC 141, CERC v.
Union of India AIR 1795, (SC 1995).

35
PRAYER
Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Honble Court may be pleased to hold, adjudge and declare that;
A writ of mandamus shall be issued to direct the immediate closure of the
manufacturing unit.
The instant Writ Petition is maintainable;
The Extraction Project infringes on several rights of the Tribal Communities
including the right to shelter, right to wholesome environment, right to health, right to
livelihood, right to information and right to preserve culture;

The Environmental Clearance granted to NGAO is invalid;
Order and direct the government to take corrective measures to restore the degraded
environment.
Award compensatory damages to the victims.
Any other relief which this Honble 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 Petitioners Shall Be Duty Bound Forever Pray.
All of which is respectfully submitted.

S/d__________________
(Counsel for the Petitioners)


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Memorial On Behalf of Petitioners

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1

IN THE HONBLE SUPREME

PUBLIC INTEREST LITIGATION NO:

[UNDER ART. 32 OF THE CONSTITUTION OF SOLETI]

--IN THE MATTER OF--

ENVIRONMENT CONCERNED AGENCY AND ANR.

UNION OF SOLETI AND NATURAL GAS AND OIL CORP.

NCU LAW SCHOOL MOOT COURT COMPETITION, 2015

MEMORANDUM ON BEHALF OF THE PETITIONERS

1. Whether the PIL filed by Environment Concerned Agency (ECA) is maintainable or

That there was violation of fundamental rights of the Aryans..16

1.3. There is no requirement for the Petitioner to exhaust local remedies 18

2. Whether the Government of Soleti is liable for environment degradation and is

2.1. That there was violation of fundamental rights of the citizen

MEMORANDUM ON BEHALF OF THE PETITIONERS

and ... Paragraph and Paragraphs

MEMORANDUM ON BEHALF OF THE PETITIONERS

CONSTITUTION OF INDIA (1950)

LIST OF BOOKS REFERRED

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

Ashok Lanka v. Rishi Dixit,5 SCC 598, (SC 2005).

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

The Government decided to initiate exploration and set up a big manufacturing

According to the report of ECA (Environment Concerned Agency), an NGO

MEMORANDUM ON BEHALF OF THE PETITIONERS

The Wildlife Advisory Board directed the closure of the manufacturing

MEMORANDUM ON BEHALF OF THE PETITIONERS

ISSUE 1: WHETHER THE PIL FILED BY ENVIRONMENT CONCERNED

ISSUE 2: WHETHER THE GOVERNMENT OF SOLETI IS LIABLE FOR

MEMORANDUM ON BEHALF OF THE PETITIONERS

Whether the PIL filed by Environment Concerned Agency (ECA) is

Whether the Government of Soleti is liable for environment degradation and

MEMORANDUM ON BEHALF OF THE PETITIONERS

Whether the PIL filed by Environment Concerned Agency (ECA) is

MEMORANDUM ON BEHALF OF THE PETITIONERS

6 Ashok Lanka v. Rishi Dixit,5 SCC 598, (SC 2005).

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

1.3. There is no requirement for the Petitioner to exhaust local remedies

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

Whether the Government of Soleti is liable for environment degradation and is

It is submitted that implementation of the Project would result in a violation of multiple

A. The lack of an enforceable rehabilitation policy violates the right to shelter.

MEMORANDUM ON BEHALF OF THE PETITIONERS

B. The Mining Project violates the right to a wholesome environment

MEMORANDUM ON BEHALF OF THE PETITIONERS

C. The Mining Project violates the right to health

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

D. The Mining Project violates the right to livelihood

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

83 Information for Decision Making, Agenda 21 (1992).

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

92 Sterlite Industries (India) Ltd. v. Union of India, 4 SCC 575 (2013).