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TEAM CODE: 21R

9TH PRO B ONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2015

BEFORE

THE HONOURABLE SUPREME COURT OF MAHADESHA

UNDER ARTICLE 136 OF THE CONSTITUTION OF MANAS TIRTH


M/S. MARVOLO MINING COMPANY .......P ETITIONER 1
CENTRAL GOVERNMENT OF REPUBLIC OF MANAS TIRTH...........PETITIONER 2

V.

MR. PERCIVAL BRIAN ....RESPONDENT 1


STATE OF EAST PRADESH, REPRESENTED BY S.E.I.A.A ........RESPONDENT 2

MEMORIAL FOR THE RESPONDENTS

-Table of Contents -

- Memorandum for the Respondents-

TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................................ I
LIST OF ABBREVIATIONS ................................................................................................ II
INDEX OF AUTHORITIES ................................................................................................ III
STATEMENT OF JURISDICTION ................................................................................... IX
STATEMENT OF FACTS ..................................................................................................... X
ISSUES RAISED................................................................................................................... XI
SUMMARY OF ARGUMENTS ......................................................................................... XII
ARGUMENTS ADVANCED .................................................................................................. 1
1.

Whether the National Green Tribunal is vested with suo motu powers? ................ 1
1.1. That suo motu powers are necessary so as to further the objects of the NGT Act. 1
1.2. That the NGT has inherent and implied suo motu powers ..................................... 2

2.

Whether the New Mining Deal, 2015 permitting mining in the Area was valid and

whether mining in the Area was against environmental safety? ......................................... 3


2.1. That the NMD is arbitrary and thus violative of Article 14 .................................... 3
2.2. That NMD authorizing mining in the Area violates the right to wholesome
environment........................................................................................................................ 5
2.3. That the NMD is not violative of the rights of tribal people living in the area ...... 7
3.

Whether there has been a criminal violation of the mining license by Marvolo

Mining Company? ................................................................................................................. 11


3.1. That the present court has the jurisdiction to intervene in the matter ................. 11
3.2. That the allegations against Marvolo constitute criminal offences and thus a
criminal case shall be registered. .................................................................................... 14
PRAYER ................................................................................................................................. 21

I|Page

-List of Abbreviations -

- Memorandum for the Respondents-

LIST OF ABBREVIATIONS
1. / S.

Section

2.

Paragraph

3. AIR

All India Reporter

4. Air Act

Air (Prevention and Control of Pollution) Act, 1981

5. Area

Area of East Pradesh, in the region of the Burrow where mining


activities took place.

6. Art.

Article

7. Bom.

Bombay

8. Cal.

Calcutta

9. cl.

Clause

10. CrPC

Code of Criminal Procedure, 1973

11. E.P.A.

Environment Protection Act, 1986

12. EIA

Environment Impact Assessment

13. HC

High Court

14. IPC

Indian Penal Code, 1860

15. Marvolo

M/s. Marvolo Mining Company Ltd.

16. Mining Project

Mining done by Marvolo

17. MMDR Act

Mines and Minerals (Development and Regulation) Act, 1957

18. MoEF

Ministry of Environment and Forests

19. NGT

National Green Tribunal

20. NGT Act

National Green Tribunal Act, 2010

21. NMD

New Mining Deal, 2015

22. PCB

Pollution Control Board

23. PESA

Panchayats (Extension to Scheduled Areas) Act, 1996

24. S.E.I.A.A.

State Environment Impact Assessment Association

25. SC

Supreme Court

26. SCC

Supreme Court Cases

27. SLP

Special Leave Petition

28. U.O.I.

Union of India

29. Water Act

Water (Prevention and Control of Pollution) Act, 1974

II | P a g e

-Index of Authorities-

- Memorandum for the Respondents-

INDEX OF AUTHORITIES
Statutes
1. The Constitution of India, 1950.
2. National Green Tribunal Act, 2010.
3. The Panchayats (Extension to Schedules Areas) Act, 1996.
4. Mines and Minerals (Development and Regulation) Act, 1957.
5. Air (Prevention and Control of Pollution) Act, 1981.
6. Water (Prevention and Control of Pollution) Act, 1974.
7. Environment Impact Assessment Notification, 2006.
8. National Green Tribunal (Practice and Procedure) Rules, 2011.
9. Indian Penal Code, 1860.
10. Code of Criminal Procedure, 1973.
11. The Forest (Conservation) Act, 1980.
12. Indian Forests Act, 1927.
13. The Wildlife (Protection) Act, 1972.
Cases
A.I.D.M.K. v. State Election Commissioner, (2007) S.C.C. OnLine Mad 49. ......................... 14
A.P. Pollution Control Board v. Prof. M.V. Nayudu, (1999) 2 S.C.C. 718. ............................ 18
A.P. State Fishermen Development and Welfare Association v. District Collector and Ors.,
2010 (2) A.L.D. 300. .............................................................................................................. 8
A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadhwani and Anr., A.I.R.
1961 S.C. 1506..................................................................................................................... 13
Ajay Dubey v. State of M.P., 2010 S.C.C. OnLine M.P. 374: (2010) 4 M.P. L.J. 679. ........... 20
Aman Stone Crusher v. State of M.P & Anr., 2014 S.C.C. OnLine M.P. 154 : A.I.R. 2014
(N.O.C. 546) 195. ................................................................................................................ 20
Andhra Pradesh Pollution Control Board II v. Prof. M.V. Mayudu, (2001) 2 S.C.C. 62. ...... 7
Ashok Kumar Tripathi v. Union of India, (2000) 2 M.P.H.T. 193. ........................................... 8
Asstt. Collector of Central Excise v. Jainson Hosiery, A.I.R. 1979 S.C. 1889. ...................... 13
B.R. Surendranath Singh v. Deputy Director, Department of Mines and Geology, Karnataka
and Ors., A.I.R. 2011 S.C. 1679. ......................................................................................... 15
Babulal v. Aditya Birla, 1986(1) Crimes 248. ................................................................... 16, 18
Banaswasi Seva Ashram v. State of Uttar Pradesh, A.I.R. 1987 S.C. 378................................ 9

III | P a g e

-Index of Authorities-

- Memorandum for the Respondents-

Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi, A.I.R. 2010 S.C. 475. ................. 12
Bharat Bank Limited v. Employees, 1950 S.C.R. 459. .............................................................. 2
Bidi, Bidi Leaves and Tobacco Merchants Association v. State of Bombay, A.I.R. (1962)
S.C. 486.................................................................................................................................. 2
Birendra Singh v. State of Bihar, 1988 S.C.C. OnLine Pat. 244. .............................................. 8
Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action Group and Others,
(2006) 3 S.C.C. 434. ............................................................................................................ 12
Borgaram Deuri v. Premodhar Bora, (2004) 2 S.C.C. 227..................................................... 15
C.E.S.C. Ltd. v. Subhash Chandra Bose, (1992) 1 S.C.C. 441. ................................................. 6
C.I.T. v. National Taj Traders, (1980) 1 S.C.C. 370. ................................................................ 1
C.K. Rajan v. State, A.I.R. 1994 Ker. 179. .............................................................................. 13
Centre for Public Interest Litigation v. Union of India, (2012) 3 S.C.C. 1. ........................... 18
Champ Eng. Ventures Pvt. Ltd. v. Ministry of Environment and Forest (MoEF), 2015 S.C.C.
OnLine N.G.T. 83. ......................................................................................................... 16, 17
Charan Lal Sahu v. Union of India, (1990) 1 S.C.C. 613. ........................................................ 7
Charles J. in Reg. v. Miles, 24, Q.B.D. 423. ............................................................................ 19
Chennakesava Swamy Temple v. I. Sreeramulu , (1985) 2 A.P.L.J. (H.C.) 225. ...................... 9
Chhotelal Choudhury and Ors. v. State of West Bengal, 2008 Cri.L.J..3655.......................... 15
Committee of Management and Others v. Vice Chancellor and Others, (2009) 2 S.C.C. 630.
.............................................................................................................................................. 13
Common Cause, A Registered Society v. Union of India & Others, (1999) 6 S.C.C. 667. ..... 12
Comptroller and Auditor General v. K.S. Jagannathan, (1986) 2 S.C.C. 679. ....................... 12
Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 S.C.C. 590. ............................. 11
Francis Corallie Mullin v. Administrator, Union Territory of Delhi, A.I.R. 1981 S.C. 746. ... 7
George Fernandes v. Union of India and Others, 1993 Supp. (1) S.C.C. 418. ....................... 14
Goa Foundation and Others v. State of Goa and Others, 2001 (3) Bom. C.R. 813.................. 3
Goa Foundation v. State of Goa, 2000 S.C.C. OnLine Bom. 476. ............................................ 5
Goa Foundation v. Union of India, (2014) 6 S.C.C. 590. ................................................. 15, 20
Govt. Of Andhra Pradesh and Ors. v. Obulapuram Mining Company P.V.T.. Ltd. and Ors,
(2011) 12 S.C.C. 491. .................................................................................................... 11, 16
Harischandra Keshaolal Fulsunge v. Motilal Shivshankar Agrawal & Others, 2000 S.C.C.
OnLine Bom. 551................................................................................................................... 2
Heydons Case, (1584) 76 E.R. 637. ......................................................................................... 1
Indian Council for Enviro Legal Action v. U.O.I., (1996) 3 S.C.C. 212. .................................. 7
IV | P a g e

-Index of Authorities-

- Memorandum for the Respondents-

Indian Council for Enviro Legal Action v. Union of India, (1996) 5 S.C.C. 281. ......... 1, 14, 15
Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 S.C.C. 212. .................. 18
Indra Sawhney v. Union of India, 1992 Supp. (3) S.C.C. 217................................................. 10
Institute of Chartered Accountants of India v. Price Waterhouse, (1997) 6 S.C.C. 312. .......... 1
Janata Dal v. H.S. Chowdhary, (1992) 4 S.C.C. 305. ............................................................. 11
K. Guruprasad Rao v. State of Karnataka, (2012) 12 S.C.C. 727............................................. 8
Karnataka Industrial Areas Development Board v. C. Kenchappa, (2006) 6 S.C.C. 371. ....... 5
Kinkri Devi and Anr. v. State Of Himachal Pradesh and Ors., A.I.R. 1988 H.P. 4. ................. 9
Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group, (2011) 3 S.C.C.
363.......................................................................................................................................... 3
L. Chandra Kumar v. Union of India, A.I.R. 1997 S.C. 1125. .................................................. 2
L.D.A. v. M.K. Gupta, (1994) 1 S.C.C. 243. .............................................................................. 1
Lafarge Umiam Mining (P) Ltd. v. Union of India, (2011) 7 S.C.C. 338................................ 20
Lalita Kumari v. State of U.P., (2014) 2 S.C.C. 1. .................................................................. 12
Laxmi Raj Shetty v. State of T.N., (1988) 3 S.C.C. 319. .......................................................... 15
M. Subba Reddy v. A.P.S.R.T.C., (2004) 6 S.C.C. 729. ............................................................. 1
M.C. Mehta v. Kamal Nath, (1997) 1 S.C.C. 388. ............................................................... 6, 18
M.C. Mehta v. Union of India, (1997) 2 S.C.C. 411. ............................................................... 18
M.C. Mehta v. Union of India, (1998) 9 S.C.C. 589. ............................................................. 5, 7
M.C. Mehta v. Union of India, (1998) 9 S.C.C. 93. ................................................................... 7
M.C. Mehta v. Union of India, (2003) 5 S.C.C. 376. ............................................................... 16
M.C. Mehta v. Union of India, (2004) 12 S.C.C. 118. ......................................................... 6, 20
M.C. Mehta v. Union of India, (2009) 6 S.C.C. 142. ......................................................... 11, 20
M.C. Mehta v. Union of India, A.I.R. 2004 S.C. 800. ............................................................. 12
Madhu Kishwar v. State of Bihar A.I.R. 1996 S.C. 1864; Samatha v. State of Andhra
Pradesh, (1997) 8 S.C.C. 191. ............................................................................................. 10
Manikant Pathak and Ors. v. State of Bihar and Ors,. 1997(1) B.L.J.R. 721. ........................ 19
Maqbool Hussain v. State of Bombay, A.I.R. 1953 S.C. 325. ................................................. 19
Mehsana District Central Cooperative Bank Ltd. v. State of Gujarat, A.I.R. 2004 S.C. 1576.
.............................................................................................................................................. 13
Ms. Anubha Agarwal, Adv. v. M/s. Maruti Suzuki India Ltd. & Anr., 2014 S.C.C. OnLine Del.
4892...................................................................................................................................... 16
Narmada Bachao Aandolan v. Union of India, (2000) 10 S.C.C. 664. ................................. 6, 7
New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar, A.I.R. 1963 S.C. 1207....... 1
V|Page

-Index of Authorities-

- Memorandum for the Respondents-

Olga Tellis v. Bombay Municipal Corp., A.I.R. 1986 S.C. 180. ......................................... 7, 10
Om Dutt Singh v. State of U.P., 2015 S.C.C. OnLine N.G.T. 153. ........................................... 6
Orissa Mining Corp. v. Ministry of Environment and Forests And Ors., (2013) 6 S.C.C. 476.8
P. Rami Reddy v. State of Andhra Pradesh, A.I.R. 1988 S.C. 1626........................................ 10
P.A. Jacob v. Supt. of Police, Kottayam, A.I.R. 1993 Ker. 1. ................................................... 5
P.G. Gupta v. State of Gujrat, 1995 (Supp.-2) S.C.C. 182. ....................................................... 9
Paramjeet Singh Kalsi v. Ministry of Environment and Forest, 2015 S.C.C. OnLine N.G.T.
109........................................................................................................................................ 16
Parmanand Katara v. Union of India, (1989) 4 S.C.C. 286. ............................................... 6, 14
Rural Litigation and Entitlement Kendra v. State of U.P., (1985) 2 S.C.C. 431. ................ 5, 16
S.P. Gupta v. Union of India, 1981 Supp. S.C.C. 87. .............................................................. 11
Samaj Parivartana Samudaya v. State of Karnataka, A.I.R. 2013 S.C. 3217................... 15, 17
Samatha v. State of A.P., 1995 S.C.C. OnLine A.P. 173. .......................................................... 4
Samatha v. State of Andhra Pradesh & Ors., A.I.R. 1997 S.C. 3297. ...................................... 8
Santokh Singh v. Delhi Administration, (1973) 1 S.C.C. 659.................................................... 4
Santosh Mittal v. State of Rajasthan, 2014 S.C.C. OnLine N.G.T. 2841. ............................... 11
Sarapu Chinna Potharaju Dora and Another v. District Collector, East Godavari District,
Kakinada and Others, 2002 S.C.C. OnLine A.P. 157. .......................................................... 8
Secretary, Hailakandi Bar Association v. State of Assam and Another, 1995 Supp. (3) S.C.C.
736........................................................................................................................................ 14
Secretary, Minor Irrigation and Rural Engineering Services Ltd., U.P. v. Sahngoo Ram Arya,
A.I.R. 2002 S.C. 2225. ......................................................................................................... 12
Sengol, Charles and K. Kannan, etc. v. State Rep. by Inspector of Police 2012 Cri. L.J. 1705.
.............................................................................................................................................. 18
Shantistar Builders v. Narayan Khimalal Totame, (1990) 1 S.C.C. 520............................. 7, 10
Smt. Ambika Ghorpade v. State of Karnataka, M.A.N.U./K.A./0209/2009, Writ Petition No.
4233 of 2009. ....................................................................................................................... 15
State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And
Others, Civil Appeal Nos. 104-105 Of 2001. ....................................................................... 8
State of NCT of Delhi v. Sanjay And Jaysukh Bavanji Shingalia v. State of Gujarat, A.I.R.
2015 S.C. 75............................................................................................................. 15, 18, 19
State of Punjab v. C.B.I., (2011) 9 S.C.C. 182. ......................................................................... 3
Sterlite Industries (India) Ltd. v. Tamil Nadu Pollution Control Board, 2013 S.C.C. OnLine
N.G.T. 68. ............................................................................................................................ 17
VI | P a g e

-Index of Authorities-

- Memorandum for the Respondents-

Subhash Kumar v. State of Bihar, (1991) 1 S.C.C. 598. ...................................................... 8, 18


Subhash Kumar v. State of Bihar, A.I.R. 1991 S.C. 420. ................................................ 5, 6, 17
Sugarcane G and S Sugars Shareholders Assn. v. T.N. Pollution Control Board, A.I.R. 1998
S.C. 2614.............................................................................................................................. 18
Suo moto v. State of Rajasthan, 2015 S.C.C. OnLine Raj. 352. .............................................. 17
Suo Motu v. Vatva Industries Association, A.I.R. 2000 Guj. 33. .............................................. 1
T.N. Godavarman Thirulpad v. U.O.I., (2008) 9 S.C.C. 711. ................................................. 15
T.N. Godavarman Thirumulkpad v.U.O.I., (1997) 2 S.C.C. 267. .............................................. 4
T.N. Godavarman Thirumulpad v. Union of India, (2006) 1 S.C.C. 1. ..................................... 5
T.N. Godavarman Thirumulpad v. Union of India, (2014) 4 S.C.C. 124. ............................... 20
The Indian Institute of Science Employees Ass. v. Indian Institute of Science, 1998 S.C.C.
OnLine Kar. 545. ................................................................................................................... 3
The Institute of Chartered Accountants of India v. Vimal Kumar Surana and Anr., (2011) 1
S.C.C. 534. ........................................................................................................................... 18
Union of India v. Mangal Textile Mills Ltd., (2010) 14 S.C.C. 553. ....................................... 13
Union of India v. Paras Laminates (P.) Ltd., (1990) 4 S.C.C. 453. .......................................... 2
Vellore Citizens Welfare Forum v. Union of India, (1996) 5 S.C.C. 647. ........................... 7, 11
Virender Gaur v. State of Haryana, (1995) 2 S.C.C. 577. ........................................................ 5
Whirlpool Corporation v. Registrar of Trade Marks, (1998) 8 S.C.C. 1. ............................... 13
Wilfred J. v. Ministry of Environment and Forests, 2014 S.C.C. OnLine N.G.T. 6860. ........... 2
Yunus Zia v. State of Karnataka, (2015)7 S.C.C. 327. ............................................................ 14
Books
Justice G.P. Singh, Principles of Statutory Interpretation 125 (10th ed. Wadhwa Nagpur
2006). ..................................................................................................................................... 2
Journals/ Online Resources
Arbitrary Actions of the State Are In Conflict With Article 14 (Right to Equality) of The
Constitution Of India available at https://lawreports.wordpress.com/2009/06/12/arbitraryactions-of-the-state-are-in-conflict-with-article-14-right-to-equality-of-the-constitution-ofindia/ accessed on 17th October. ............................................................................................ 4
Armin Rosencranz, Geetanjoy Sahu, Assessing the National Green Tribunal after Four Years
5 Monsoon J.I.L.S. (2014) 191. ............................................................................................. 2
Fifteenth

Lok

Sabha

Debate,

Lok

Sabha

Debates

(30-4-2010),

available

at

http://164.100.47.132.LssNew/psearch/Result15.aspx?dbsl=2380. ...................................... 1
VII | P a g e

-Index of Authorities-

- Memorandum for the Respondents-

K. Vidyullatha Reddy, Creating Infrastructure for Management of Surface Water: Issues


and Challenges Faced by A.P Government, 1 R.M.L.N.L.U.J. (2008) 95. ........................... 6
Nirmal Chopra, Environmental Issues- Penal Action Required, (2004) P.L. WebJour 3,
available at http://www.ebc-india.com/lawyer/articles/838.htm. ........................................ 13
V.K. Sircar, The Old and New Doctrines of Equality: A Critical Study of Nexus Tests and
Doctrine of Non-Arbitrariness, (1991) 3 S.C.C. (Jour.) 1. .................................................... 4

VIII | P a g e

-Statement of Jurisdiction-

- Memorandum for the Respondents-

STATEMENT OF JURISDICTION
The Respondents humbly submit this memorandum for two petitions filed before this
Honourable Court and the Honourable High Court of East Pradesh respectively, which have
been clubbed together and transferred for final hearing to be convened in this court. The first
petition is filed by the petitioners herein and invokes the Special Leave Jurisdiction of this
court under Article 136 of the Constitution of Manas Tirth. The second Writ Petition was a
Public Interest Litigation filed by the Respondents herein before the High Court of East
Pradesh invoking the Writ Jurisdiction of the Court under Article 226 of the Constitution, but
the petition has been transferred to the Supreme Court under the provisions of Article 139A
of the Constitution.
This memorandum sets forth the facts, contentions and arguments for the respondents in
the given case.

IX | P a g e

-Statement of Fact -

- Memorandum for the Respondents-

STATEMENT OF FACTS
I.

In May 2015, the Central Government of Minas Tirth formulated a policy, New Mining
Deal, 2015 according to which various Iron Blocks in the State of East Pradesh were
auctioned to foreign mining giants. The auction was won by M/s. Marvolo Inc, a
company which has been accused of violating their licenses in 13 different countries. The
mining work commenced in June, 2015 after taking clearance from MoEF, but the State
government was not consulted and the process was not without corruption.

II.

In East Pradesh, Marvolos license was restricted to iron blocks A, B and C. Blocks D, E
and F which were not licensed as mining these unlicensed blocks may cause a huge
environmental hazard to the local population and also affect the existence of the forest.
Also, the mining in the blocks A, B and C was permitted only up to a depth of 100 feet.

III.

The mines were located in the greatest forest reserve of the country, The Burrow, which
houses tribal people, several precious animals which are on the verge of extinction and
migratory birds. Also, the river here is the only source of clean water to the whole State.

IV.

It was revealed in a Newspapers investigation that Marvolo mined in blocks A, B and D.


The report further alleged that they have mined more than 125 feet in the said blocks.
Also, there was depletion in the flora and fauna of the forest, and pollution in river water
due to mining wastes was witnessed which could have been avoided if better technology
was used. Also, an increase in air pollution and soil erosion was observed. Also, workers
and other people who visited the area started intruding into the peaceful living of the
tribal people. Deforestation of a huge area of the forest was also seen.

V.

Mr. Percival Brian, an independent candidate in the elections filed a PIL before the High
Court of East Pradesh against the whole mining activity. The court ordered SEIAA to
conduct an investigation. The SEIAA investigated and revealed that Marvolo had mined
violating the licensing in Block D and had dug deeper than 100 feet. It also announced
that the license should not have been granted to any of these mining blocks as they
critically affect the tribal population and the environment. The Agency also conceded that
an environmental impact assessment before the beginning of license would have
prevented such problems. The NGT convened on Saturday and granted a suo motu
injunction against mining and ordered the mine to be sealed until further orders.
Aggrieved by this and the High Court PIL, Marvolo decided to approach the Supreme
Court of Minas Tirth. The Supreme Court thus transferred all the cases to the Supreme
Court for a special hearing and the final hearing has been posted for November 1st, 2015.
X|Page

-Issues Raised-

- Memorandum for the RespondentsISSUES RAISED

1) Whether the National Green Tribunal is vested with suo motu powers?
1.1. That suo motu powers are necessary so as to further the objects of the NGT Act
That the NGT has inherent and implied suo motu powers

2) Whether the New Mining Deal, 2015 permitting mining in the Area was valid and
whether mining in the Area was against environmental safety?
2.1.That the NMD is arbitrary and thus violative of Article 14
2.2.That NMD authorizing mining in the Area violates the right to wholesome
environment
2.3.That the NMD is not violative of the rights of tribal people living in the area

3) Whether there has been a criminal violation of the mining license by Marvolo
Mining Company?
3.1. That the present court has the jurisdiction to intervene in the matter
3.2. That the allegations against Marvolo constitute criminal offences and thus a
criminal case shall be registered.

XI | P a g e

-Summary of Arguments -

- Memorandum for the RespondentsSUMMARY OF ARGUMENTS

I.

WHETHER

THE

NATIONAL GREEN TRIBUNAL

IS VESTED WITH SUO MOTU

POWERS ?

It is submitted that the National Green Tribunal has the inherent power to act suo motu
where the situation warrants so. This power also flows from Section 24 of the NGT
(Practice and Procedure) Rules, 2011. Also, the NGT has been established by the NGT
Act, 2010 with the sole intention to protect the environment and specializes in dealing
with environmental issues. A statute shall be interpreted in a manner so as to further the
objects of the legislation. It is submitted that suo motu powers are imperative so that NGT
can function properly without impediments.
II.

WHETHER THE NEW MINING DEAL, 2015

PERMITTING MINING IN THE

AREA

WAS VALID AND WHETHER MINING IN THE AREA IS AGAINST ENVIRONMENTAL


SAFETY ?

It is submitted that the mining activity in the State of East Pradesh was against
environment safety and the New Mining Deal, 2015 permitting the same was
constitutionally invalid. The NMD was framed arbitrarily and violates the principle of
sustainable development and the fundamental rights of the tribal people living in the
Area. Also, the mining policy was formed in a hurry. It is further submitted that the actual
implementation of the policy led to infringement of the rights of tribal people living in the
Burrow, and also resulted in significant environment damage. This suggests that there
should never have been a mining operation in this eco-sensitive area, and mining here
violated the precautionary principle.
III.

WHETHER
BY

THERE HAS BEEN A CRIMINAL VIOLATION OF THE MINING LEASE

MARVOLO MINING COMPANY?

It is submitted that there exists a prima facie case of criminal violations of the mining
lease against Marvolo, and a criminal case shall be registered against the violators under
the provisions of IPC, the EPA, the Air Act, the Water Act and the MMDR Act. There is
enough prima facie evidence including media reports which have been substantiated by
the SEIAA report, to register a criminal case. Also, the respondent, Mr. Percival Brian
had locus to file a PIL before the High Court. Also, it is not necessary to exhaust all the
alternative remedies and the order for a criminal case registration can be given by the
High Court and Supreme Court.

XII | P a g e

-Arguments Advanced -

- Memorandum for the Respondents-

ARGUMENTS ADVANCED
1. Whether the National Green Tribunal is vested with suo motu powers?
The respondents humbly submit that the NGT is vested with suo motu and the NGT correctly
exercised its jurisdiction in the present case. The detailed arguments in support are as follows.
1.1. That suo motu powers are necessary so as to further the objects of the NGT Act.
1.1.1. That a statute shall be interpreted so as to further the objects of the act.
The object of interpreting a statute is to ascertain the intention of the legislature. 1 The courts
shall depart from the rule of literal construction of statutes when it produces absurd results
not intended by the legislature.2 If two interpretations of as statute are possible, the one which
promotes justice and equity shall be considered.3 A statute shall be understood in a sense in
which they best harmonise with objects of the statute and which effectuate the object of the
legislature.4 Constructive approach shall be adopted in construing welfare legislations. 5 The
court shall follow the doctrine of purposive construction and the rule established in the
Heydon case6, which takes into account what is the mischief the law seeks to remedy.
1.1.2. That suo motu powers are necessary to further the objects of the NGT Act.
The parliament established the NGT recognizing the need for speedy and expeditious
disposal of environmental cases and an expert body dedicated to remedying environmental
cases.7 The NGT Act states that the act is meant for effective and expeditious disposal of
cases related to environmental protection and for the enforcement of any legal right relating
to environment. Also, the Act recognizes that in light of judicial pronouncement right to
healthy environment is a part of Article 21, and the NGT seeks to enforce the same. Hence,
NGT itself acts as a guardian of fundamental rights in the sense that it protects the right to life
of citizens. Also, the NGT has jurisdiction over all cases where a substantial question of
environment is involved.8 The courts have stressed on the need for quick action in
environmental cases.9 It would be practicable to allow NGT to act suo motu because in this
way the tribunal would be able to remedy injustice, whenever it receives knowledge or
1

Institute of Chartered Accountants of India v. Price Waterhouse, (1997) 6 S.C.C. 312.


C.I.T. v. National Taj Traders, (1980) 1 S.C.C. 370.
3
M. Subba Reddy v. A.P.S.R.T.C., (2004) 6 S.C.C. 729.
4
New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar, A.I.R. 1963 S.C. 1207.
5
L.D.A. v. M.K. Gupta, (1994) 1 S.C.C. 243.
6
Heydons Case, (1584) 76 E.R. 637.
7
Fifteenth Lok Sabha Debate, Lok Sabha Debates
(April 30, 2010), available at
http://164.100.47.132.LssNew/psearch/Result15.aspx?dbsl=2380.
8
The National Green Tribunal Act, 2010 14.
9
Indian Council for Enviro Legal Action v. Union of India, (1996) 5 S.C.C. 281; Suo Motu v. Vatva Industries
Association, A.I.R. 2000 Guj. 33.
2

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information about any violation of environmental principles. Also, there are several cases
where people who are suffering in remote areas dont have enough resources to access the
tribunal or courts. The tribunals are in a better position to grant relief in such situations and
thus shall have the power to raise issues suo motu, even if no party has approached the court
itself. It wont be just to estop the NGT from raising issues of grave environmental concern.
The suo motu powers of NGT are implied from the statute and thus the court shall interpret
the Act in a way so as the objects of the legislation are achieved. The tribunal has raised
several matters on its own motion, and has achieved tremendous success in dealing with
them.10 A construction that results in hardship, inconvenience, injustice, absurdity or anomaly
shall be rejected.11 Divesting NGT of this power would lead to precisely the same.
1.2. That the NGT has inherent and implied suo motu powers
Although, there is no express mention of suo motu powers in the NGT Act, 2010, the NGT
has inherent powers to take up matter suo motu. The tribunal has all those incidental and
ancillary powers to make fully effective the express grant of statutory powers. 12 The doctrine
of implied powers can be legitimately invoked if a duty has been imposed or power has
been conferred by a statute and such duty cannot be discharged or power cannot be exercised
unless some incidental and ancillary power is assumed to exist.13 A tribunal has all the
trappings of a court14 and its powers extend as high as judicial review of subordinate or
delegated legislation.15 It has already been shown that the tribunal is meant for enforcing
fundamental rights and statutory rights and these powers can be better exercised if suo motu
powers exist. Tribunals supplement and aid the High Courts in this regard16 and they can
perform this function more effectively if they enjoy similar inherent powers as the High
Courts. The inherent and suo motu powers of the Court cannot be limited by giving restricted
meaning.17 Furthermore, Section 24 of the NGT (Practice and Procedure) Rules, 2011 reads
that the tribunals may pass such orders or give such directions as may be necessary or
expedient or to give effect to its orders or to prevent abuse of its process or to otherwise
secure ends of justice. It is contended that Section 24 gives NGT inherent and broad powers
to remedy injustice, whether the aggrieved party has approached the court or not. The
10

Armin Rosencranz, Geetanjoy Sahu, Assessing the National Green Tribunal after Four Years 5 Monsoon
J.I.L.S. (2014) 191.
11
Justice G.P. Singh, Principles of Statutory Interpretation 125 (10 ed. Wadhwa Nagpur 2006).
12
Union of India v. Paras Laminates (P.) Ltd., (1990) 4 S.C.C. 453.
13
Bidi, Bidi Leaves and Tobacco Merchants Association v. State of Bombay, A.I.R. (1962) S.C. 486.
14
Bharat Bank Limited v. Employees, 1950 S.C.R. 459.
15
Wilfred J. v. Ministry of Environment and Forests, 2014 S.C.C. OnLine N.G.T. 6860.
16
L. Chandra Kumar v. Union of India, A.I.R. 1997 S.C. 1125.
17
Harischandra Keshaolal Fulsunge v. Motilal Shivshankar Agrawal & Others, 2000 S.C.C. OnLine Bom. 551.

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ingredients of this provision are analogous to the inherent powers of the High Court under S.
482 of the Cr.P.C. It has been held that the High Courts is justified in exercising suo motu
powers under S 482 in order to secure ends of justice.18 Hence, a comparison between the
inherent powers of High Court and the NGT would reveal that the NGT also has inherent
powers to act suo motu to secure ends of justice.
2. Whether the New Mining Deal, 2015 permitting mining in the Area was valid and
whether mining in the Area was against environmental safety?
The petitioners humbly submit that the mining activity in the State of East Pradesh was not
against environment safety and the New Mining Deal, 2015 permitting the same was valid.
The NMD was framed arbitrarily and violates the principle of sustainable development and
the fundamental rights of the tribal people living in the Area. Also, the mining policy was
formed in a hurry. The detailed arguments in support of this contention follow.
2.1. That the NMD is arbitrary and thus violative of Article 14
Any forest land or any portion thereof may be used for any non-forest purpose; that any forest
land or any portion thereof may be assigned by way of lease or otherwise to any private
person or to any authority, corporation, agency or any other organisation not owned, managed
or controlled by Government.19 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.20
However, in the present case there has been non-application of mind for granting the
approval, since, firstly, the tribal people had to relocate after loss of their habitat, and the
government cannot foster deforestation.21 The order in the case of Krishnadevi Malchand
Kamathia v. Bombay Environmental Action Group22 clearly stated that the party at wrong had
knowingly and purposely damaged the forest which could have not been disturbed and so
violating the norms of environmental laws; thus no court can validate an action which is not
lawful at its inception. The counsel would hence plead that as the test of equality as is
enshrined under Articles 14, 15 and 1623, is not at all coming in purview of the scenario and
the New Mining Deal is hence violative of Fundamental Rights as it is arbitrary.
In fact equality and arbitrariness are sworn enemies. Where an act is arbitrary, it is
implicit in it that it is unequal both according to political logic and constitutional law and

18

State of Punjab v. C.B.I., (2011) 9 S.C.C. 182.


The Forest Conservation Act, 1980 2(ii).
20
Goa Foundation and Others v. State of Goa and Others, (2001) 3 Bom. C.R. 813.
21
Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group, (2011) 3 S.C.C. 363.
22
Id.
23
The Indian Institute of Science Employees Ass. v. Indian Institute of Science, 1998 S.C.C. OnLine Kar. 545.
19

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is therefore violative of Article 14.24 It prima facie applies to all States and subjects alike,
a construction consistent with the philosophy of equality enshrined in our Constitution.
This natural approach avoids the archaic rule and moves with the modem trends. This
will not cause any hardship to the State. 25 Law has reached its finest moments, stated
Douglas, J. in United States v. Wunderlick, when it has freed man from the unlimited
discretion of some ruler Where discretion is absolute, man has always suffered.26
The test of reasonableness of the restriction has to be considered in each case in the light of
the nature of the rights infringed.27 In this case there is a clear violation of rights of the tribals
in consideration to their right to life and livelihood and moreover violation of right to clean
environment of all the people for whom the river is the only source of clean water, and these
violations are irrecoverable in nature.
The Government of Minas Tirth has acted arbitrarily by neglecting the rights of tribal and
safeguarding the rights of non-tribal people, despite the fact that the movement of non tribals
is restricted to tribal area, so as to avoid their exploitation28, and thus, there has been violation
of Article 14, on account of abuse of power and arbitrariness in the actions of the
Government. It is now too well-settled that every State action, in order to survive, must not
be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution
and basic to the rule of law, the system which governs us.29 This principle of
unreasonableness was laid down in the Wednesbury case and is says that all such actions
which are arbitrary happening by the executive, can be challenged by judiciary.
Hence, the New Mining Deal, 2015 is violative of Article 14 and should be declared
unconstitutional.
Also, it is submitted that the NMD was formed in a hurry which is evident from the factual
matrix. The new central government of Manas Tirth came to power in May, 2015, and the
policy was framed and implemented in only a two month period as the mining work
commenced on July 1st, 2015. This further strengthens the argument that the Cabinet and
Central government acted unreasonably and arbitrarily, without giving much needed thought
to the possible results and implications of this policy.
24

V.K. Sircar, The Old and New Doctrines of Equality: A Critical Study of Nexus Tests and Doctrine of NonArbitrariness, (1991) 3 S.C.C. (Jour.) 1.
25
Samatha v. State of A.P., 1995 S.C.C. OnLine A.P. 173.
26
Arbitrary Actions of the State Are In Conflict With Article 14 (Right to Equality) of The Constitution Of India
available at https://lawreports.wordpress.com/2009/06/12/arbitrary-actions-of-the-state-are-in-conflict-witharticle-14-right-to-equality-of-the-constitution-of-india/ accessed on 17th October.
27
Santokh Singh v. Delhi Administration, (1973) 1 S.C.C. 659.
28
T.N. Godavarman Thirumulkpad v.U.O.I., (1997) 2 S.C.C. 267.
29
.Supra note 26.

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2.2. That NMD authorizing mining in the Area violates the right to wholesome
environment.
It is widely accepted that the right to life under Art. 21 also embrace the right to live in a
wholesome, pollution-free environment.30 This has to be read in conjunction with Article 48A
and Article 51A (g) which imposes a duty on the State to preserve and improve the
environment.31 Adding more to it, all these must as well be in consistent with International
Declarations, one of which eschews the term entirely in its first principle declaring that
humans are entitled to a healthy and productive life in harmony with nature. 32 It is hence
submitted that the New Mining Deal violates the said right.
Firstly, in order to achieve sustainable development, environmental protection shall constitute
an integral part of the development process and cannot be considered in isolation from it.33 In
the present case, there is no consideration given for sustainable development or even to any
idea of protecting the environment from harms. As Principle 4 of Rio Declaration was
enunciated that man has a special responsibility to safeguard and wisely manage the heritage
of wild life and its habitat which are now gravely imperilled by a combination of adverse
factors. Nature conservation, including wild life, must, therefore, receive importance in
planning for economic development.34
Secondly, there is a compulsory and unwilling exposure of population to pollution, which is
violative of Article 21.35 The compulsory exposure over here firstly is that being received by
the tribals as they end up losing their habitat and other factors which are contributing to an
unhealthy and poorer life and the next being that of water contamination of the river, which is
the only source of clean water to the entire state, i.e. a population larger than the tribals.
Thirdly, there is going to be a great ecological imbalance, as tigers have already started to
disappear and the migratory birds have not flocked after the mining process started.36 This
Court has a duty to guard against irreversible ecological damage.37 The Mining Project would
result in an ecological imbalance38 and destroy the guarantee of a wholesome environment. It

30

Subhash Kumar v. State of Bihar, A.I.R. 1991 S.C. 420; Virender Gaur v. State of Haryana, (1995) 2 S.C.C.
577.
31
M.C. Mehta v. Union of India, (1998) 9 S.C.C. 589.
32
Karnataka Industrial Areas Development Board v. C. Kenchappa, (2006) 6 S.C.C. 371.
33
Rio Declaration on Enivronment and Development, 1992, Principle 4.
34
Goa Foundation v. State of Goa, 2000 S.C.C. OnLine Bom. 476.
35
P.A. Jacob v. Supt. of Police, Kottayam, A.I.R. 1993 Ker. 1.
36
Moot Proposition, 7.
37
T.N. Godavarman Thirumulpad v. Union of India, (2006) 1 S.C.C. 1.
38
Rural Litigation Entitlement Kendra v. State of Uttar Pradesh, A.I.R. 1985 S.C. 652.

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is submitted that the mining project would disturb this and irreversibly damage the ecology.
Therefore, it violates the guarantee of right to wholesome environment.
Fourthly, proper health would not be given to the tribals and other people of the state. In the
case of Parmanand Katara v. Union of India39 , it was so held that right to health and medical
assistance must be held as a fundamental right under Article 21 read with Articles 39(c), 41
and 43 of the Constitution. The term health implies more than an absence of sickness.
Medical care and health facilities not only protect against sickness but also ensure stable
manpower for economic development. The maintenance of health is a most imperative
constitutional goal whose realisation requires interaction of many social and economic
factors.40 It would be hence pleaded that there is a violation of the said right.
Fifthly, there is a prima facie case of pollution. These resources meant for public use cannot
be converted into private ownership. The Court drew a fine distinction between public
use and public purpose. If the natural resource meant for public use is to be converted to
public purpose especially into private ownership Government must be cautious and see to it
that it does not commit breach of that trust.41 Article 21 of the Constitution ensures the
fundamental right to live decently and to enjoy clean air42, and the case at hand has a crystal
clear fact that there was occurrence of air pollution and hence, violation of Article 21. In
M.C. Mehta v. Kamal Nath43 it was so decided that Central government and the state
government have custodian rights over the inland water bodies and must take proper care of
the same, as per the public trust doctrine. In the case of Om Dutt Singh v. State of U.P.44, the
National Green Tribunal decided that water pollution is directly an offence under the water
act, and it is also a violation of the fundamental right of access to clean water. Even in the
case of T.N. Godavarman Trimpulad v. Union of India45 the Supreme Court held that water
contamination is a direct violation of Article 21. The last piece of the pollution puzzle is soil
erosion which is clearly seen happening.46 In the cases of Narmada Bachao Aandolan v.
Union of India47and M.C. Mehta v. Union of India48 the court was of the opinion that soil also
comes in the same ambit as that of air and water and hence degradation or erosion or
39

Parmanand Katara v. Union of India, (1989) 4 S.C.C. 286.


C.E.S.C. Ltd. v. Subhash Chandra Bose, (1992) 1 S.C.C. 441.
41
K. Vidyullatha Reddy, Creating Infrastructure for Management of Surface Water: Issues and Challenges
Faced by A.P Government, 1 R.M.L.N.L.U.J. (2008) 95.
42
Subhash Kumar v. State of Bihar, A.I.R. 1991 S.C. 420.
43
M.C. Mehta v. Kamal Nath, (1997) 1 S.C.C. 388.
44
Om Dutt Singh v. State of U.P., 2015 S.C.C. OnLine N.G.T. 153.
45
T.N. Godavarman Thirumulpad v. Union of India, (2006) 1 S.C.C. 1.
46
Moot Proposition, 7.
47
Narmada Bachao Aandolan v. Union of India, (2000) 10 S.C.C. 664.
48
M.C. Mehta v. Union of India, (2004) 12 S.C.C. 118.
40

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pollution of the same shall amount to violation of Article 21. In the Narmada case the court
went to such great distances that it even said that there is a clear superiority of life, health and
care of people over economic goals and urbanization.
Lastly, the petitioners may rely on the lack of scientific consensus on the exact harms caused
to the environment. However, as held in Vellore Citizens Forum49, the onus of proof is on the
polluter to show that its actions are environmentally benign.50Further, this Court in M.C.
Mehta51 imposed on the State, a duty to anticipate, prevent and attack the causes of
environmental degradation.52 Therefore, it is not open to the petitioners to depend on
scientific uncertainty to push forth a project that violates the right to life of several people.
The counsel would hence like to plead that the polluter pays principle53 imposes absolute
liability for harm caused to the environment, to compensate the victims of pollution and to
pay the cost of restoring the environment.54 The burden of maintaining the said balance lies
on the unit which has caused the pollution.55
2.3. That the NMD is not violative of the rights of tribal people living in the area
The fundamental right to shelter56 and livelihood57 of the Indigenous people have been as
guaranteed under Article 21 of the Constitution been violated on account of the arbitrary
action of the state. Also, there has been violation of right to Healthy Environment58 as
guaranteed under Article 21 of the Constitution since the state and Marvolo Ltd. are
responsible for pollution among other things. What follows suit, is Article 19s violation, as
there is a clear incidence of relocation.
2.3.1. That mining in the Area is violative of Article 19 and Article 21.
The right to shelter has been read into Article 21 59 as an essential concomitant of the
fundamental right to life.60 In the present case, the tribals were relocated as their habitat had
changed.61
The indigenous people are considered on same pedestal as Scheduled Tribes62 in India
because of their backwardness63, dependence on basic natural resources for life and
49

Vellore Citizens Welfare Forum v. Union of India, (1996) 5 S.C.C. 647.


M.C. Mehta v. Union of India, (1998) 9 S.C.C. 93.
51
Id.
52
M.C. Mehta v. Union of India, (1998) 9 S.C.C. 589.
53
Charan Lal Sahu v. Union of India, (1990) 1 S.C.C. 613.
54
Indian Council for Enviro Legal Action v. U.O.I., (1996) 3 S.C.C. 212.
55
Narmada Bachao Aandolan v. Union of India, (2000) 10 S.C.C. 664.
56
Shantistar Builders v. Narayan Khimalal Totame, (1990) 1 S.C.C. 520.
57
Olga Tellis v. Bombay Municipal Corp., A.I.R. 1986 S.C. 180.
58
Andhra Pradesh Pollution Control Board II v. Prof. M.V. Mayudu, (2001) 2 S.C.C. 62.
59
Shantistar Builders v. Narayan Khimalal Totame, (1990) 1 S.C.C. 520.
60
Francis Corallie Mullin v. Administrator, Union Territory of Delhi, A.I.R. 1981 S.C. 746.
61
Moot Proposition, 7.
50

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livelihood and lack of exposure to civilization64. Thus, their (the tribals who reside in the
Burrow) rights have also been construed to be safeguarded under Article 244(1) and the
provisions of the Fifth Schedule of the Constitution. There is a necessity to protect the
inherent rights of indigenous people to empower them to utilise and to exercise control over
forest for sustainable development.65
The source of livelihood for forest dwelling people66 for generations has been forests and
forest land67 and so are considered inseparable.68 The Rio Submit, 1992, Article 1 of The
Indigenous and Tribal Populations Convention, 1957 and United Nation Declaration on
Indigenous people also recognize the rights of indigenous people over the land. 69 Hence, the
first and sole ownership of the land of the forest must be with the local inhabitants. Therefore,
to protect forest land State is given the responsibility under the principle of Public Trust
Doctrine70, Panchayats (Extension to the Scheduled Areas) Act 1996 (PESA)71 and Articles
48A of the Constitution to preserve the Forests which are considered to be a national wealth
under Environment Protection Act, 1986.72
As it is even evident there have been some disturbances with their way of life. 73 There should
be neither displacement of tribals nor any disturbance of tribal way of life for the purpose of
execution of irrigation projects, mining activities, industries, establishment of wild life
sanctuaries.74 So, prima facie it is wrong to enter into the area of the tribal people and what is
more hideous is disturbing their order.
Disturbances in the order of the tribal villages can be devastating in nature. In the case of
Birendra Singh v. State of Bihar75 it so happened that because of there being disturbance in a
tribal village of tribal v. non-tribal nature, there was killing of an important tribal nature and
that was termed as only an action coming out of political complexity. Hence, it would be
62

Orissa Mining Corp. v. Ministry of Environment and Forests And Ors., (2013) 6 S.C.C. 476.
State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And Others, Civil
Appeal Nos. 104-105 Of 2001.
64
Samatha v. State of Andhra Pradesh & Ors., A.I.R. 1997 S.C. 3297.
65
Ashok Kumar Tripathi v. Union of India, (2000) 2 M.P.H.T. 193.
66
The Scheduled Tribes and other Traditional Forest Dweller Act, 2006 2(o).
67
The Scheduled Tribes and other Traditional Forest Dweller Act, 2006 2(c).
68
K. Guruprasad Rao v. State of Karnataka, (2012) 12 S.C.C. 727.
69
State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And Others, Civil
Appeal Nos. 104-105 Of 2001.
70
A.P. State Fishermen Development and Welfare Association v. District Collector and Ors., 2010 (2) A.L.D.
300.
71
Panchayats (Extension to Scheduled Areas) Act, 1996 4(d) & (m).
72
Subhash Kumar v. State of Bihar, (1991) 1 S.C.C. 598.
73
Moot Proposition, 7.
74
Sarapu Chinna Potharaju Dora and Another v. District Collector, East Godavari District, Kakinada and
Others, 2002 S.C.C. OnLine A.P. 157.
75
Birendra Singh v. State of Bihar, 1988 S.C.C. OnLine Pat. 244.
63

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collaterally beneficial if the tribals are left with their own ways, and the other workers and
employees of the mines nearby do not interfere with the tribal population of the Burrow.
The Constitution of India clearly states that it is the duty of the State to protect and improve
the environment and to safeguard the forests and wildlife of the country under Art 48A
Directive principles of State Policy and under Art 51A (g) -Fundamental Duties. The Courts
are increasingly relying on the directive principles as complementary to fundamental rights.
The combined reading of Art. 48A and 51A (g) visualizes the collaboration and conjoint
effort of the citizen and the state to attain the aspirations and objectives embedded therein.76
The phrase used in Art.48A, protect and improve implies that government action is to
improve quality of environment and not just to preserve the degrading environment. In case
of failure to comply with the duties ingrained in Art 48A and 51A (g), it can be enforced in
courts by expanding the interpretation of Art.21. In order to attain the constitutional goal of
protection and improvement of the environment and protecting people inhabiting the
vulnerable areas from the hazardous consequences of the arbitrary exercise of power without
due regard to their life, liberty and property, the Court will be left with no alternative but to
intervene effectively by issuing appropriate writs, orders and directions .77 And those
directions can be in the nature of directing the authorities to provide the relocating parties
with some facilities, as was given in Banaswasi Seva Ashram v. State of Uttar Pradesh78. In
this case the court gave the decision in the favour of the respondents, i.e. the party whose
action was resulting in relocation, yet ordered for some relief and facilities to the indigenous
relocating people.
The counsel would hence like to plead that there is clear violation of Article 21.
2.3.2. That there has been a loss of livelihood of the tribal people
In the case of P.G. Gupta v. State of Gujrat79 it was so held that:
The act of the Government, of curtailing the movement of the forest dwellers thus
violates their fundamental right to livelihood (vide Art. 21), in the present case. The
right to residence and settlement is a fundamental right under Art. 19(1) (e) and is a
facet meaningful right to life under Art. 21. When the State, as in this instance, has
undertaken as its economic policy planned development of this country, allotment of
houses to weaker sections of the society, the same has to be recognised as its part. The
very nature of the act of the Government and its policies are such that the permanent
76

Chennakesava Swamy Temple v. I. Sreeramulu , (1985) 2 A.P.L.J. (H.C.) 225.


Kinkri Devi and Anr. v. State Of Himachal Pradesh and Ors., A.I.R. 1988 H.P. 4.
78
Banaswasi Seva Ashram v. State of Uttar Pradesh, A.I.R. 1987 S.C. 378.
79
P.G. Gupta v. State of Gujrat, 1995 (Supp.-2) S.C.C. 182.
77

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settlement right of the indigenous tribal communities, though subjective, will be violated
because of the gross negligence on part of the former to comply with its own policies
and the legislations of the Parliament. The Preamble, Article 19(1) (e) read along with
Arts. 38, 39 and 46 make the life meaningful and liveable in equal status with the
dignity of the person. It is, therefore, imperative on the part of the state to provide
permanent housing accommodation to the indigenous tribal population or to sustain the
privileges provided in any undertaken projects within economic means.
In the light of the aforementioned case, the counsel representing the respondents would plead
that in the present case there has been a loss of livelihood of the tribal people because of their
relocation. In the case of Indra Sawhney v. Union of India80 the nine learned judges held that
tribals are historically backwards and hence the value of occupation or livelihood is immense.
All their resources and means of living come directly from the forest produce and now that
they are out of the periphery of their home and when even their habitat is changed, there is a
clear loss of means to live. It is not mere access but actual availability and possession of land
that is indispensable to the livelihood and sustenance of tribal communities.81 As the demand
for exact evidence to show the loss of livelihood is unrealistic82, the counsel would like to
urge the court to look for common sense and not rigid nexus between eviction and loss of
livelihood.83
Coming to the aspect of ill effects of externalities, there are many ill effects that can be done
regardless of the precautions that might as well be taken. Firstly, the respiratory problems that
is caused due to air pollution coming straightaway from mines would mean harmful effects
on the health of the people of the tribal community, and illness would result in the loss of
livelihood, if at all there was any. Secondly, the mining firm has reportedly brought their own
workers and hence there would be no employment generation for these tribal people; which is
more regressive that progressive, as they might even encroach upon the freedoms and areas
these tribal people have. Last but not the least, because of air pollution, water pollution and
soil pollution, there is great degradation in the means of livelihood of the tribals.

80

Indra Sawhney v. Union of India, 1992 Supp. (3) S.C.C. 217.


P. Rami Reddy v. State of Andhra Pradesh, A.I.R. 1988 S.C. 1626.; Madhu Kishwar v. State of Bihar, A.I.R.
1996 S.C. 1864; Samatha v. State of Andhra Pradesh, (1997) 8 S.C.C. 191.
82
Shantistar Builders v. Narayan Khimalal Totame, (1990) 1 S.C.C. 520.
83
Olga Tellis v. Bombay Municipal Corp., A.I.R. 1986 S.C. 180.
81

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3. Whether there has been a criminal violation of the mining license by Marvolo
Mining Company?
The respondents humbly submit that since our legal system having been founded on the
British common law, the right of a person to a pollution-free environment is a part of the
basic jurisprudence of the land84 and therefore, it is the responsibility of the state to ensure
that it prevents all such activities of M/s Marvolo Mining Company that cause environmental
pollution due to illegal mining activities85 and the courts should share the legislative concern
to conserve the forests and the mineral wealth of the country86. On account of over
exploitation as reaffirmed by the SEIAA report and considerable damage done to the
environment indeed paves way for application of the relevant statutes87 and mining sector per
se is regulated by a large number of environment and forest statutes88. On the basis of the
allegations and evidences on record there are several statutes from which criminal liability
arises due to violation of specific provision of the statue and penalty is also prescribed
therein. The detailed arguments in the support of this contention follow below.
3.1. That the present court has the jurisdiction to intervene in the matter
It is submitted that the present court has the jurisdiction to register a criminal case against
Marvolo for its illegal mining activities and the PIL which was filed in the HC seeking the
same was valid. Also, the existence of an alternative remedy is no bar and the respondents
herein had the right to directly approach the High Court. Also, the court can take into account
media reports and can initiate criminal proceedings on basis of the same.
3.1.1. That the respondent had locus standi to file a PIL.
The rule of locus standi has been relaxed in a PIL.89 No rigid litmus test can be developed
in defining rule of locus standi in a PIL.90 Any member of the public having sufficient
interest can maintain an action for judicial redress for public injury arising from breach of a
public duty or for cases where Fundamental Rights have been infracted.91 Public Interests
Litigations have been entertained frequently where a question of violation of the statutes
governing the environment or ecology of the country has been brought to the notice of the

84

Vellore Citizens Welfare Forum v. Union of India, (1996) 5 S.C.C. 647, p. 661.
Santosh Mittal v. State of Rajasthan, 2014 S.C.C. OnLine N.G.T. 2841.
86
State of Karnataka v. Janthakal Enterprises, (2011) 6 S.C.C. 695, p.703.
87
Govt. Of Andhra Pradesh and Ors. v. Obulapuram Mining Company P.V.T.. Ltd. and Ors, (2011) 12 S.C.C.
491.
88
M.C. Mehta v. Union of India, (2009) 6 S.C.C. 142, p.152.
89
S.P. Gupta v. Union of India, 1981 Supp. S.C.C. 87.
90
Janata Dal v. H.S. Chowdhary, (1992) 4 S.C.C. 305.
91
Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 S.C.C. 590.
85

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courts.92 In the present case, the respondent herein had brought up a matter of grave
ecological importance to the courts notice where significant environmental damage had been
committed from neglect and breach of duties from public authorities. Also, the mere fact that
the petitioner is a political person doesnt affect his right to file his PIL, as long as his PIL is
not politically motivated. In the present case, the issues which have been raised are very
serious in nature and the petition is not filed with the intention to foster or settle personal
disputes. Thus, the respondent had locus to file a PIL in the High Court.
3.1.2. That the present court has power to initiate a criminal case through a PIL
The present court has been vested with wide discretion in granting relief. 93 The Honble court
is also vested with the power to initiate criminal proceedings against any person if a prima
facie is being made out against him. The court has exercised this power in the past and has
directed the CBI to register a criminal case against certain persons against whom allegations
of corruption had been made.94 The decision to direct an enquiry against a person can be done
if the court after considering the material on record comes to a conclusion that such material
discloses prima facie case calling for criminal investigation.95 In Common Cause, A
Registered Society v. Union of India & Others96 held that a direction for investigation can be
given if an offence is, prima facie, found to have been committed or a persons involvement
is prima facie established. Also, the writ jurisdiction of the court extends to giving directions
to a public authority when it has failed to exercise a statutory duty or discretion. 97 It is the
public duty of the state to guarantee to its citizens clean and pollution-free environment.
Registration of a criminal case upon receiving information relating to commission of a
cognizable offence is a legal duty of a police officer.98 Similarly, Section 19 of the EPA and
other statutory provisions99 empowers the Central Government or any authority authorized on
his behalf to take cognizance of criminal offences under the different environmental statutes.
Thus, we can conclude that it is the legal duty of the Central government to initiate criminal
proceedings against polluters and defaulters. In the present case, the information of illegal
mining and the ensuing pollution is common knowledge, yet no criminal case has been

92

Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action Group and Others, (2006) 3 S.C.C. 434.
Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi, A.I.R. 2010 S.C. 475.
94
M.C. Mehta v. Union of India, A.I.R. 2004 S.C. 800.
95
Secretary, Minor Irrigation and Rural Engineering Services Ltd., U.P. v. Sahngoo Ram Arya, A.I.R. 2002
S.C. 2225.
96
Common Cause, A Registered Society v. Union of India & Others, (1999) 6 S.C.C. 667.
97
Comptroller and Auditor General v. K.S. Jagannathan, (1986) 2 S.C.C. 679.
98
Lalita Kumari v. State of U.P., (2014) 2 S.C.C. 1.
99
Air (Prevention and Control of Pollution) Act, 1981 43; Water (Prevention and Control of Pollution) Act,
1974 49; Mines and Minerals (Development and Regulation) Act, 1957 22.
93

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registered against the defaulter, Marvolo by the Central government. Where an alleged
violation of a statutory provision was brought to the notice of appropriate authorities, but no
action was initiated on behalf of them, a writ of mandamus directing competent authorities to
take appropriate action against the violator was directed by the Court. 100 Hence, the present
court has the power to direct the Central Government perform their legal duties by initiating
criminal proceedings against Marvolo.
3.1.3. That presence of alternative remedy is no bar.
In a Public Interest Litigation, the availability of alternative remedy sinks into oblivion.101
The availability of an alternative remedy does not operate as an absolute bar to entertaining a
writ petition but is a rule of discretion to be exercised depending on the facts of each case. 102
The jurisdiction of High Court in entertaining a writ petition under Art 226, in spite of
alternative statutory remedies is not affected.103 Special powers of the court, in spite of
alternative remedy can be exercised in those cases where a statutory authority has not acted in
accordance with the provisions of enactment in question.104 The courts may exercise their
jurisdiction where the alternative remedy would not be an efficacious one.105 Where there is
alternative statutory remedy court may interfere if the alternative remedy is too dilatory or
cannot grant quick relief.106 In the present case, the alternative remedy available to initiate
criminal proceedings against the alleged violator, Marvolo was to give a notice of Sixty days
to the Central Government.107 Also, there was no remedy available to the respondent herein
to get a criminal case registered against Marvolo for alleged offences under S. 21 of the
MMDR Act, 1957.108 The alternative remedy available to the respondent was dilatory as
environmental issues are serious in nature and require quick redressal. Also, the court must
take into account the fact that criminal liability under the environment-protection statutes is
rarely imposed against offenders109. Enactment of law but tolerating its infringement is
worse than not enacting the law at all. Even though, it is not the function of the court to see
the day-to-day enforcement of the laws, that being the function of the executive, but because
100

Mehsana District Central Cooperative Bank Ltd. v. State of Gujarat, A.I.R. 2004 S.C. 1576.
C.K. Rajan v. State, A.I.R. 1994 Ker. 179.
102
A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadhwani and Anr., A.I.R. 1961 S.C.
1506.
103
Whirlpool Corporation v. Registrar of Trade Marks, (1998) 8 S.C.C. 1.
104
Union of India v. Mangal Textile Mills Ltd., (2010) 14 S.C.C. 553.
105
Committee of Management and Others v. Vice Chancellor and Others, (2009) 2 S.C.C. 630.
106
Asstt. Collector of Central Excise v. Jainson Hosiery, A.I.R. 1979 S.C. 1889.
107
Air (Prevention and Control of Pollution) Act, 1981 43; Water (Prevention and Control of Pollution) Act,
1974 49; Environment Protection Act, 1986 19.
108
Mines and Minerals (Development and Regulation) Act, 1957 22.
109
Nirmal Chopra, Environmental Issues- Penal Action Required, (2004) P.L. WebJour 3, available at
http://www.ebc-india.com/lawyer/articles/838.htm.
101

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of the non-functioning by the enforcement agency, the courts as of necessity have had to pass
orders or direction to the enforcement agencies to implement the law for the protection of the
fundamental rights of the people.110 Hence, in interests of justice, it is imperative for the
court to intervene in the present case.
3.1.4. That the Honble court can rely on newspaper reports and media reports.
There are many decisions, where on the basis of newspaper reports proceedings have been
initiated by the Supreme Court in PILs.111In AIDMK v. State Election Commissioner112 it was
held that there is no bar to rely on newspaper reports in a PIL. The Madras High Court in this
case also said that action should have been taken by the Election Commission against alleged
offenders on basis of newspaper reports and such an authority can initiate any step based on
newspaper reports. Also, in the decision of Secretary, Hailakandi Bar Association v. State of
Assam and Another113, the SC issued directions to register a criminal case and ordered
investigations on the basis of a letter and certain news reports. Furthermore, the SC in a case
affirmed the action of a police officer in registering an FIR on the basis of media/newspaper
reports was held to be valid by the SC.114 Thus, it is well established that criminal cases can
be registered solely on basis of media reports.
3.2. That the allegations against Marvolo constitute criminal offences and thus a
criminal case shall be registered.
3.2.1. That there has been a criminal violation of Mines and Minerals (Development
and Regulation) Act, 1957
The respondents humbly submit that there has been a criminal volition under this statue by
M/s Marvolo Mining Company as they mined in total contravention to the conditions subject
to which they were granted lease. Since, Block A and Block B were mined more than 100
feet exceeding the cap value as that of 100 feet it amounts to violation of the mining lease and
over exploitation of the resource and calls in for an criminal action since the MMDR Act
provides that no one should undertake mining operation in any area which is not in
accordance with the mining lease115. Moreover, mining that was done on block D was in
total violation of the license116 and thereby even this action call for a criminal liability as even

110

Indian Council for Enviro Legal Action v. Union of India, (1996) 5 S.C.C. 281.
Parmanand Katara v. Union of India, (1989) 4 S.C.C. 286; George Fernandes v. Union of India and Others,
1993 Supp. (1) S.C.C. 418.
112
A.I.D.M.K. v. State Election Commissioner, (2007) S.C.C. OnLine Mad 49.
113
Secretary, Hailakandi Bar Association v. State of Assam and Another, 1995 Supp. (3) S.C.C. 736.
114
Yunus Zia v. State of Karnataka, (2015)7 S.C.C. 327.
115
The Mines and Minerals (Development and Regulation) Act, 1957 4.
116
Moot Proposition, 9.
111

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though mining is an important industry but still one cannot be allowed to exploit the
resources indiscriminately117 and in Smt. Ambika Ghorpade W/o Sri Karthikeya Ghorpade
Vs. State of Karnataka118, The High court opined,
Once it is found that a person has encroached upon forest land and operating its
activity outside limits of leased out area, then Authority should initiate criminal
action against him.
Moreover, it was due to this trespass and mining on the Block D which was labelled to be
untouched and use of inferior technology which was in violation to the lease because of
which led to disturbance of ecological balance119 as affirmed by the SEIAA report. As the
policy and object of MMDR Act is to stop the damages being caused to the nature 120, thereby
penal provision121 for contravention of the provision of Sub-section (1) of Section 4 of the
Act and Section 4(1) provides that no person shall undertake any reconnaissance, prospective
or mining operations in any area except under and in accordance with the terms and
conditions of prayer or license122 can be invoked. Moreover, the dumping of waste which is
circumscribed as a mining operation123 as per Section 3(d) of the MMDR Act uses forest land
causing pollution to river as the effluents are discharged in the river which is outside the
leased area and is not permissible under Section 9124 as well as Rule 5(3) of the EPA, 1985125.
Thereby since it is established by the evidence on record such as media report126 which was
further reaffirmed by the SEIAA127 report that the company acted in violation of the Section
4 of the act, thereby respondents humbly plead that the company which can be made liable as
per Section 23128 should be made subject to the penaltys given under Section 21 and the
company i.e. the lessee of the mining lease can be made to hand over the iron ores extracted
in violation as he has no right over it129 and he can be made to compensate the loss caused to
the State Legislature in its furtherance.

117

T.N. Godavarman Thirulpad v. U.O.I., (2008) 9 S.C.C. 711.


Smt. Ambika Ghorpade v. State of Karnataka, M.A.N.U./K.A./0209/2009, Writ Petition No. 4233 of 2009.
119
Indian Council for Envirolegal Action v. Union of India, (1996) 5 S.C.C. 281.
120
State of NCT of Delhi v. Sanjay and Jaysukh Bavanji Shingalia v. State of Gujarat, A.I.R. 2015 S.C. 75.
121
The Mines and Minerals (Development and Regulation) Act, 1957 21(1) and 21(3).
122
Chhotelal Choudhury and Ors. v. State of West Bengal, 2008 Cri.L.J..3655.
123
Samaj Parivartana Samudaya v. State of Karnataka, A.I.R. 2013 S.C. 3217.
124
Goa Foundation v. Union of India, (2014) 6 S.C.C. 590.
125
The Environment Protection Act, 1986 5(3).
126
Laxmi Raj Shetty v. State of T.N., (1988) 3 S.C.C. 319., p.346.
127
Borgaram Deuri v. Premodhar Bora, (2004) 2 S.C.C. 227., p.233.
128
The Mines and Minerals (Development and Regulation) Act, 23 (1957).
129
B.R. Surendranath Singh v. Deputy Director, Department of Mines and Geology, Karnataka and Ors., A.I.R.
2011 S.C. 1679.
118

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3.2.2. That there has been a criminal violation of Air (Prevention and Control of
Pollution) Act, 1981 and Section 277 of the Indian Penal Code, 1860
The respondents submit that there has been a criminal volition under these statue by M/s
Marvolo Mining Company as they mined in total contravention to the conditions subject to
which they were granted lease. As a consequence of Block A and Block B being overexploited and Block D which was labelled to be untouched being mined has led to
unprecedented air pollution in the area130 which has affect the entire eco system and the flora
and fauna in the region. Since the evidences on record prove that there has been air pollution,
thereby in attracts penalties under chapter IV which the courts can adjudge. 131
The Anti-Pollution Laws are framed and the Notification issued thereunder contain
provisions which prohibit132 and or regulate certain activities with a view to protect and
preserve the environment133. These activities namely include those which have a detrimental
effect on the air purity and cause air pollution and chapter VI of the Air Act makes penalties
and procedure to levy the same have been set out. Even though it has been stated that only the
specific courts can take cognizance under the given act but still the matters involving these
can be adjudicated upon by the courts since these are not there to provide immunity to the
companies134 instead to ensure a balance between development and ecosystem. For a petition
under Article 32, the cognizance clause135 can be over rided in cases of over exploitation and
damage to the eco system136 and in Ms. Anubha Agarwal, Adv. v. M/s. Maruti Suzuki India
Ltd. & Anr137 the court established that:
There is nothing in in the Rules framed under the Act also mandating the filing of
the complaint of any offence committed under the Act.
The gravamen of contemptuous act of M/s Marvolo Mining Company is of superlative
dimension as this relates to the violation of not only the Air (Prevention and Control of
Pollution) Act, 1981 but also of the Indian Penal Code, 1860. The pollution of air is causing
deleterious effect on the health of the entire society and thereby on the basis of that the court
can even take into consideration the Air Act while decided the offence under the IPC 138.
In the present facts and circumstances since the M/s Marvolo Mining Company violating the
130

Rural Litigation and Entitlement Kendra v. State of U.P., (1985) 2 S.C.C. 431.
Champ Eng. Ventures Pvt. Ltd. v. Ministry of Environment and Forest, 2015 S.C.C. OnLine N.G.T. 83.
132
The Air (Prevention and Control of Pollution) Act, 1981 22.
133
Paramjeet Singh Kalsi v. Ministry of Environment and Forest, 2015 S.C.C. OnLine N.G.T. 109.
134
Babulal v. Aditya Birla, 1986(1) Crimes 248.
135
The Air (Prevention and Control Of Pollution) Act, 1981 19.
136
Govt. Of Andhra Pradesh and Ors. v. Obulapuram Mining Company PVT. Ltd., (2011) 12 S.C.C. 491.
137
Ms. Anubha Agarwal, Adv. v. M/s. Maruti Suzuki India Ltd. & Anr., 2014 S.C.C. OnLine Del. 4892.
138
M.C. Mehta v. Union of India, (2003) 5 S.C.C. 376, p.387.
131

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conditions under the provisions of the Air Act, as decided in Sterlite Industries (India) Ltd. v.
Tamil Nadu Pollution Control Board139, it is an offence140 punishable with imprisonment and
with fine.
3.2.3. That there has been a criminal violation of Water (Prevention and Control of
Pollution) Act, 1974 and Section 278 of the Indian Penal Code, 1860
The counsel humbly submits that the evidence on record prove that M/s Marvolo Mining
Company have committed water pollution by discharge of waste in to the river 141, and more
over all of this had mens rea since this could have been avoided as the company wilfully used
inferior technology that caused pollution. The graveness of such an act multiplies in
magnitude just by the shear fact that this river was the only source of clean water to the whole
state142. Such an act is in contravention to both The Water Act, 1974 143 as well as The IPC,
1860144. In Suo moto v. State of Rajasthan145, by taking cognizance of a report published in
English Newspaper TOI, the court itself took matter and registered a petition for writ in
public interest to call upon the authorities to notice as to why necessary directions be not
taken under Section 277 of the IPC. For the cognizance clause under The Water Act

146

the

court opined that under Article 32 for the prevention of pollution is maintainable at the
instance of affected persons or even by a group of social workers or journalists and can take
up a complain under Section 24147 and more over the court can use its power under Art. 32
and Art 142 to bring into effect the provisions which deal with violation of the relevant
statutes in there is merit in the case148.
The penalty and procedure for such activities which are in contravention to Section 24, are
highlighted under Section 43, Chapter VII of the Water Act and procedure to levy it by the
courts have also been set out149. The evidences on record which include the SEIAA report are
substantial enough to subject the M/s Marvolo Mining Company to criminal proceedings
since a company can be made liable150 and there are many precedents wherein the courts has

139

Sterlite Industries (India) Ltd. v. Tamil Nadu Pollution Control Board, 2013 S.C.C. OnLine N.G.T. 68.
The Air (Prevention and Control Of Pollution) Act, 1981 39.
141
Moot Proposition, 7.
142
Moot Proposition, 6.
143
The Water (Prevention and Control of Pollution) Act, 1974 24.
144
The Indian Penal Code, 1860 277.
145
Suo moto v. State of Rajasthan, 2015 S.C.C. OnLine Raj. 352.
146
The Water (Prevention and Control Of Pollution) Act, 1974 49.
147
Subhash Kumar v. State of Bihar and Ors., A.I.R. 1991 S.C. 420.
148
Samaj Parivartana Samudaya v. State of Karnataka, A.I.R. 2013 S.C. 3217.
149
Champ Eng. Ventures Pvt. Ltd. v. Ministry of Environment and Forest (MoEF), 2015 S.C.C. OnLine N.G.T.
83.
150
The Water (Prevention and Control of Pollution) Act, 1974 47.
140

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done this151,152. As it has been established that in case of environmental degradation which
affects the quality of the life of its citizens the court must take cognizance and dispose of the
cases as soon as possible153 since these special acts are not on the Statute Book for providing
to the trade or industry any absolute immunity from prosecution for offenders 154. Since every
citizen has a right to pollution free water which may be detrimental to the quality of his life155
and therefore, even though it may cause hardship to owners of company, the court may even
order that a complete ban as no such operations may take place within the 10 km radius of the
water source as it was done in the M.V. Nayudu case156.
3.2.4. That there has been a criminal violation of Section 379 of the Indian Penal
Code, 1860
From the respondents it is humbly presented that in the present facts and circumstances there
are sufficient evidences to bring to the table that M/s Marvolo Mining Company had mined
Block D without the due lease that was required and committed illegal mining which has
been reaffirmed by both the media reports as well the report that was submitted by SEIAA
per the orders of the High Court. It is a well settled principle that Doctrine of Public Trust157
rests on the principle that certain resources like air, sea, waters and forests are of such great
importance to the people as a whole that it would be highly unjustifiable to make them a
subject of private ownership158 and as it is clear from the facts that it was a situation where
without any lease or license or any authority the Block D has been mined and minerals
extracted in a clandestine manner with an intent to remove dishonestly those minerals from
the possession of the State, is liable to be punished for committing such offence under
Sections 378 and 379 of the Indian Penal Code159.
A cursory comparison of the Section 4(1) of the Mines and Minerals Act with Section 378 of
Indian Penal Code would go to show that the ingredients are totally different160. In Sengol,
Charles and K. Kannan, etc. etc. v. State Rep. by Inspector of Police161 court held that:
After the interpretation of similar clauses under different enactments, the contravention
of the terms and conditions of mining lease, etc. constitutes an offence punishable under
151

M.C. Mehta v. Union of India, (1997) 2 S.C.C. 411.


Sugarcane G and S Sugars Shareholders Assn. v. T.N. Pollution Control Board, A.I.R. 1998 S.C. 2614.
153
Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 S.C.C. 212.
154
Babulal v. Aditya Birla, 1986(1) Crimes 248.
155
Subhash Kumar v. State of Bihar, (1991) 1 S.C.C. 598, p.604.
156
A.P. Pollution Control Board v. Prof. M.V. Nayudu, (1999) 2 S.C.C. 718.
157
Centre for Public Interest Litigation v. Union of India, (2012) 3 S.C.C. 1.
158
M.C. Mehta v. Kamal Nath, (1997) 1 S.C.C. 388.
159
State of NCT of Delhi v. Sanjay And Jaysukh Bavanji Shingalia v. State of Gujarat, A.I.R. 2015 S.C. 75.
160
The Institute of Chartered Accountants of India v. Vimal Kumar Surana and Anr., (2011) 1 S.C.C. 534.
161
Sengol, Charles and K. Kannan, etc. v. State Rep. by Inspector of Police, 2012 Cri. L.J. 1705.
152

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- Memorandum for the Respondents-

Section 21 of the Mines and Minerals Act, whereas dishonestly taking any movable
property out of the possession of a person without his consent constitutes theft. Thus, it is
undoubtedly clear that the ingredients of an offence of theft as defined in Section 378 of
Indian Penal Code are totally different from the ingredients of an offence punishable
Under Section 21(1) r/w Section 4(1) of the Mines and Minerals Act.
Therefore criminal prosecution under Section 378 of the IPC162 will not amount to double
jeopardy163, since there are different key ingredients and punishments for theft and mining in
contravention to Section 4 of the Mines and Minerals Act, therefore since there is no
application of Double Jeopardy principle164 and Hence no violation of Article 20(2) of the
Constitution of India, 1950165.
The penalty for such activities which are in contravention to Section 378, are highlighted
under Section 379, IPC and procedure has been set out under Section 378 of Code of
Criminal Procedure, on receipt of the police report, the Magistrate having jurisdiction can
take cognizance of the said offence without awaiting the receipt of complaint that may be
filed by the authorized officer for taking cognizance in respect of violation of various
provisions of the MMRD Act166. The evidences on record which include the SEIAA report
are substantial enough to subject the M/s Marvolo Mining Company to criminal proceedings
since a company can be made liable as per the concept of Corporate Criminal Liability167 by
unveiling the corporate veil168.
3.2.5. That there has been a criminal violation of the Environment Protection Act,
1986
The Environment Act, 1986 is a umbrella legislation and thereby it acts in furtherance to
protect from having an imbalance in the ecosystem and prescribes rules to protect the
standards of the quality of air, water and soil169 and also prevents emission or discharge of
effluents beyond the allowable limits of concentration of various environmental pollutants for
an area170. From the fact sheet at hand which is further substantiated by the evidences on
record, there has been air pollution viz. the concentration and presence of pollutants in the air
is above the permitted limit and even water pollution coupled with soil erosion that has been
162

The Indian Penal Code, 1860 378.


Maqbool Hussain v. State of Bombay, A.I.R. 1953 S.C. 325.
164
Charles J. in Reg. v. Miles, 24, Q.B.D. 423.
165
Avtar Singh v. State of Punjab, A.I.R. 1965 S.C. 666.
166
State of NCT of Delhi v. Sanjay And Jaysukh Bavanji Shingalia v. State of Gujarat, A.I.R. 2015 S.C. 75.
167
Standard Chartered Bank and Ors. v. Directorate of Enforcement and Ors., A.I.R. 2005 S.C. 2622.
168
Manikant Pathak and Ors. v. State of Bihar and Ors,. 1997(1) B.L.J.R. 721.
169
The Environment (Prevention) Act, 1986 5.
170
The Environment (Prevention) Act, 1986 7.
163

19 | P a g e

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- Memorandum for the Respondents-

caused. Moreover, dumping of mining waste outside the leased area by M/s Marvolo Mining
Company into the river and thereby causing pollution water pollution is also a wrong under
Rule 5171. In addition to this mining without having EIA done172 and use of inferior
technology which led to further more uncontrolled exploitation and environmental
degradation just to maximize profits, itself is a prima facie wrong173. Moreover, there wasnt
any kind of rehabilitation scheme174 as it is evident from the fact sheet, as a result of which
the tribal people were violated and such thing would not have happened, thereby indicating
the failure of Environment Management Plan175 if an EIA would have been conducted. M/s
Marvolo Mining Company can be held stand to trial since companies can be tried 176 as per
this act and the light of the arguments in regards to the cognizable clause the court can take
the cognizance of this since EIA is a pre requisite177. Keeping in mind the impact that the
mining had which resulted in loss of tigers and migratory birds, kills the very essence of
having such Anti- pollution laws, out of which the application of this umbrella legislation is
most important and the courts should be proactive in it178.
Thereby, in blatant disregard to the rules laid down there has been per se 179, a criminal
violation of the act180 and there have been many precedents to this181.

171

Goa Foundation v. Union of India, (2014) 6 S.C.C. 590.


M.C. Mehta v. Union of India, (2009) 6 S.C.C. 142.
173
M.C. Mehta v. Union of India, (2004) 12 S.C.C. 118.
174
Environment Impact Assessment, 2011, Appendix VII, 33.
175
Environment Impact Assessment, 2011, Appendix II, 32.
176
Aman Stone Crusher v. State of M.P & Anr., 2014 S.C.C. OnLine M.P. 154 : A.I.R. 2014 (N.O.C. 546) 195.
177
T.N. Godavarman Thirumulpad v. Union of India, (2014) 4 S.C.C. 124.
178
Ajay Dubey v. State of M.P., 2010 S.C.C. OnLine M.P. 374: (2010) 4 M.P. L.J. 679.
179
The Environment (Prevention) Act, 1986 22.
180
The Environment (Prevention) Act, 1986 15.
181
Lafarge Umiam Mining (P) Ltd. v. Union of India, (2011) 7 S.C.C. 338.
172

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-Prayer-

- Memorandum for the Respondents-

PRAYER
In the light of arguments advanced and authorities cited, the Respondents humbly submit
that the Honble Court may be pleased to adjudge and declare that:
1. The National Green Tribunal is vested with suo motu powers and thus the
order of NGT granting an injunction against further mining is sustainable in
the eyes of law and shall be upheld by the honourable court.

2. The Public Interest Litigation filed before the High Court of East Pradesh was
maintainable and wasnt beyond jurisdiction of the court and thus shall be
allowed.

3. There has been a criminal breach of mining license by M/s. Marvolo Mining
Company causing environmental damage and hence the present court shall
direct the Central Government to initiate criminal proceedings against the
said company in exercise of powers under Section 43 of Air (Prevention and
Control of Pollution) Act, 1981; Section 49 of Water (Prevention and Control
of Pollution) Act, 1974; Section 19 of Environment Protection Act, 1986 and
Section 22 of the Mines and Minerals (Development and Regulation) Act,
1957.

4. The New Mining Deal, 2015 permitting mining activities in the area, is
unconstitutional and violates the fundamental or statutory rights of citizens
and that mining in the area is against the principles of environmental safety.

Or any other order as it deems fit in the interest of equity, justice and good
conscience.
Sd/(Counsels for the Respondents)

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