[ULC – 10]

IN THE HON’BLE SUPREME COURT

OF

ARYAVARTA

IN THE MATTER OF

M/S AZS MINING PVT LTD.CO. &

THE WORKERS’ UNION

(PETITIONERS)

V.

UNION OF ARYAVARTA &

THE STATE GOVERNMENT OF HODU

(RESPONDENTS)

[Under article 32 of the constitution]

XXII All India National Moot Court Competition

MEMORANDUM ON BEHALF OF THE RESPONDENTS

-DRAWN AND FILED BY THE COUNSEL FOR THE RESPONDENTS-

MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 2

 TABLE OF CONTENTS

Contents
INDEX OF AUTHORITIES .............................................................................................................................. 5
LIST OF ABBREVIATIONS ............................................................................................................................ 6
LIST OF CASES ............................................................................................................................................... 7
STATEMENT OF JURISDICTION ................................................................................................................ 10
STATEMENT OF FACTS .............................................................................................................................. 11
ISSUES FOR CONSIDERATION................................................................................................................... 12
SUMMARY OF ARGUMENTS ..................................................................................................................... 13
ISSUE 1: WHETHER THE WRIT PETITION UNDER ARTICLE 32 IS MAINTAINABLE, BECAUSE NO
FUNDAMENTAL RIGHTS WERE INFRINGED UPON? .......................................................................... 13
ISSUE 2: WHETHER THE NOTIFICATION ISSUED IN ORDER TO PROTECT THE RIGHT TO A
CLEAN ENVIRONMENT AND TO PREVENT FURTHER DETERIORATION OF THE MONUMENT IS
VALID? ....................................................................................................................................................... 13
ISSUE 3: WHETHER THE IMPORTANCE OF PROTECTING THE MONUMENT AND THE RIGHT TO
A CLEAN ENVIRONMENT PRECEDE THE WORKERS’ RIGHT TO EARN A LIVELIHOOD? ........... 14
WRITTEN SUBMISSIONS ............................................................................................................................ 15
WHETHER THE WRIT PETITION UNDER ARTICLE 32 IS MAINTAINABLE, BECAUSE NO
FUNDAMENTAL RIGHTS WERE INFRINGED UPON? .......................................................................... 15
THAT THE PETITION IS NOT MAINTAINABLE BECASAUSE NO FUNDAMENTAL RIGHTS
ENSHRINED IN PART III OF THE CONSTITUTION WERE VIOLATED. .......................................... 15
THAT THE RIGHT OF AUDI ALTERAM PARTEM WAS NOT VIOLATED IN ISSUING THE
NOTIFICATION ...................................................................................................................................... 16
WHETHER THE NOTIFICATION ISSUED IN ORDER TO PROTECT THE RIGHT TO A CLEAN
ENVIRONMENT AND TO PREVENT FURTHER DETERIORATION OF THE MONUMENT IS VALID?
.................................................................................................................................................................... 22
THAT, THE RIGHT TO A CLEAN ENVIRONMENT IS A RIGHT RECOGNISED BY THE
CONSTITUTION AND THE PROTECTION OF MONUMENTS IS AN OBLIGATION OF THE STATE
AS PART OF THE DIRECTIVE PRINCIPLES OF STATE POLICY ..................................................... 22
WHETHER THE IMPORTANCE OF PROTECTING THE MONUMENT AND THE RIGHT TO A
CLEAN ENVIRONMENT PRECEDE THE WORKERS’ RIGHT TO EARN A LIVELIHOOD? ............... 31

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 THAT, WHERE THERE IS A CONFLICT BETWEEN DIRECTIVE PRINCIPLES OF STATE POLICY
AND FUNDAMENTAL RIGHTS, THE FUNDAMENTAL RIGHTS SHOULD BE INTERPRETED IN
THE LIGHT OF THE DPSP TO OBSERVE THE LIMITS SET BY DPSP ............................................. 32
PRAYER ......................................................................................................................................................... 34

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 INDEX OF AUTHORITIES

List of Statutes/rules/regulations

 The Constitution of India,1950

 Environment Protection Act, 1986.
 Environment Protection (rules), 1986.
 Archaeological Sites and Remains Act, 1958.
 Universal Declaration of Human Rights, 1948.
 Ministry of Environment and Forests.
 Stockholm Declaration, 1972.
 International Union for Conservation of Nature and Natural Resources[IUCN]
 United Nations Environment Programme[UNEP]
 Indian Contract Act, 1872.

BOOKS/COMMENTARIES

1) A.S DE SMITH, JUDICIAL REVIEW OF ADMINISRATIVE ACTION 174 (2nd ed. 1968).
2) IUCN, WORLD CONSERVATION STRATEGY: LIVING RESOURCE CONSERVATION FOR
SUSTAINABLE DEVELOPMENT.
3) JEFFERY D. SACHS, THE AGE OF SUSTAINANBLE DEVELOPMENT (2015)
4) UNITED NATIONS; The world charter for nature A/RES/37/7, 1982.
5) SMITH,CHARLES;REES,GARETH,ECONOMIC DEVELOPMENT(2nd ed.,1998)
6) ARMIN ROSENCRANZ AND SHYAM DIVAN, ENVIRONMENTAL LAW AND POLICY IN
INDIA: CASES, MATERIALS AND STATUTES. (2nd ed.,2002)

FROM THE INTERNET

http://asi.nic.in/asi_monuments.asp

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List of Abbreviations

 AIR All India Reporter

 U.O.I Union of India
 Art. Article
 Bom Bombay
 Del Delhi
 Ed. Edition
 Govt. Government
 NGT National Green Tribunal
 Ltd. Limited
 Mad. Madras
 Ors. Others
 Anr. Another
 Sec. Section
 SC Supreme Court
 SCC Supreme Court cases
 Vol. Volume
 i.e. That is
 v. Versus
 U.P Uttar Pradesh
 A.P Andhra Pradesh
 MP Madhya Pradesh
 MoEF Ministry of Environment and Forests
 SCR Supreme Court Reports

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 LIST OF CASES

1. Daryao & Ors. v. State of U.P. & Ors. AIR 1961 SC 1457…………………………………….………..15
2. A.K. Gopalan v. State of Madras AIR 1950 SC 27……………………………………………….……..15
3. Bhagwandas Gangasahai v. Union of India & Ors. AIR 1956 SC 175……………………………….…15
4. Kalyan Singh v. State of Uttar Pradesh & Ors. AIR 1962 SC 1183……………………………………..15
5. Fertilizer Corporation Kamagar Union, Sindri & Ors. Vs. Union of India & Ors. AIR 1981 SC
344………………………………………………………………………………………………………..15
6. State of Rajasthan & Ors. Vs. Union of India AIR 1977 SC 1361………………………………………15
7. Poonam v. Sumit Tanwar, (2010) SC………………………………………………………...………15,16
8. Union of India V. Cynamide India Ltd, Air 1987 SC 1802; 1987 (2) SCR 841; 1987 (2) SCC 720; 1987
(2) Jt 107; 1987 (1) Scale 728 (10 April 1987)………………………………………………….……….17
9. Chairman Board of Mining Examination and Anr. v. Ramjee, Krishna Iyer, J, AIR 1977 SC 965; 1977
SCR (2) 904…………………………………………………………………………………….………..17
10. Bates v. Lord Halsham of St. Marlebone and Ors. , CHD 1972………………………………….……..17
11. Laxmi Khandsari v. State of U.P, AIR 1981 SC 873; 1981 SCR (3) 92………………………………...18
12. Saraswati Industrial Syndicate Ltd. v. Union Of India, AIR 1975 SC 460; 1975 SCR (1) 956…...…….18
13. Charanlal Shahu v. U.O.I, AIR 1990 SC 1480; 1989 SCR supl. (2) 597………………………..………18
14. Jawaharlal Nehru University v. B.S. Narwal, AIR 1980 SC 1666; 1981 SCR(1) 618…………..………18
15. Karnataka Public Service Commission v. B.M. Vijay Shanker, AIR 1992 SC 952; 1992 SCR (1)
668..............................................................................................................................................................19
16. Keshav Mills Co. Ltd. v. Union of India, AIR 1973 SC 389, 1973 SCR (3) 22………………………...19
17. Divisional Manager, Plantation Division V. Munnu Barrack, AIR 1966 Mad 13; (1965) 1 MLJ
7…………………………………………………………………………………………………….…….19
18. Maneka Gandhi v. Union of India, AIR 1978 597, 1978 SCR (2) 621………………………………….20
19. Union of India v. J. N. Sinha, AIR 1971 SC 40; 1971 SCR (1) 791…………………………………….20
20. State of Gujarat v. M.P. Shah Charitable Trust, 1994 SCC (3) 552; JT 1994 (3)96; 1994 SCALE
(2)374…………………………………………………………………………………………………….20
21. Balco Employees Union v. Union of India, 2001 SC……………………………………………………20

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 22. Vellore Citizens Welfare Forum vs. Union of India, AIR 1996 SC 2715…………………………...22, 24
23. Subhash Kumar v. State of Bihar, AIR 1991 SC 420; 1991 (1) SCC 598…………………………...…..24
24. M.C. Mehta v. Union of India AIR 1991 SC 813 (Vehicular Pollution Case)……………………..……24
25. Shanti Star Builders v. Narayan Totame, 1990(1) SCC 520……………………………………….……24
26. M. C. Mehta v. Union of India, 1987 SCR (I) 819 [Oleum gas leak case]…………………………..…..24
27. Indian Council of Enviro-Legal Action v. Union of India, 1996 3 SCC 212………………………..…..25
28. M. C. Mehta v. Kamal Nath, (1997) 1 SCC 388……………………………………………………..….25
29. Tehri Bandh Virodhi Sangharsh Samiti v. State of Uttar Pradesh, 1992 SUP (1) SCC 44…………..….25
30. Narmada Bachao Andolan v. Union of India AIR 1999 SC 3345…………………………………….....25
31. T. N. Godavarman Thirumulpad v. Union of India, 2000 SC 636……………….……………..……….25
32. Tarun Bharat Sangh, Alwar v. Union of India 1992 SC 514, 516………………………………...……..25
33. Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh, 1985 SC 652……..……25
34. Samatha vs. State of Andhra Pradesh, 1997…………………………………………………………..…25
35. WWF v. Union of India, WP No 337/95……………………………………………………………...…25
36. Prof.Sergio Carvalho v. The State of Goa, 1989 (1) GLT 276……………………….………………….25
37. Goa Foundation v. North Goa Planning and Development Authority. 1995(1) GLT 181………………26
38. Research Foundation for science Technology and Natural resources Policy v. Union of India and
Another, SC 2005………………………………………………………………………………..……….26
39. Intellectuals Forum v. State of A.P. (2006) 3 SCC 549…………………………………………….……26
40. Karnataka Industrial Areas Development Board v. C. Kenchappa and others, 2006……………………26
41. Jit Ram Shiv Kumar v. State of Haryana, AIR 1980 1285, 1980 SCR (3) 689………………………….27
42. Nirma Ltd. v. Ministry of Environment & Forests & Ors, 2012…………………………………...……27
43. Perumatty Grama Panchayat v State Of Kerala, 2004 (1) KLT 731……………………………...……..27
44. PTR Exports Pvt. Ltd. v. Union of India, 1996 (5) SCC 268……………………………………………28
45. STO v. Shri Durga Oil Mills, AIR 1998 Orissa 163……………………………………………………..29
46. Panval Alloys & Castings Pvt. Ltd. v. Utter Pradesh state Electricity Board, 1997 (7) SCC 251………29
47. In N.L. Dalmia v. Union of India, AIR 1976 Delhi 154…………………………………………………29
48. Ramanatha Pillai v. state of Kerala, AIR 1973 SC 2641……………………………………………...…29
49. Achuthan Pillai v. State of Kerala, AIR 1972 Kerala 39…………………………………………...……30
50. Vittal Rao Mahale v. State of Madhya Pradesh, AIR 1984 MP 170……………………………...……..30
51. R.K. Daka v. Union of India, AIR 1984 DEL 413………………………………………………………30

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 52. Malhotra & Sons v. Union of India, AIR. 1976 Jammu & Kashmir 41………………………………....30
53. State of Madras v. Champakam Dorairajan, AIR 1951 226, 1951 SCR 525…………………………....32
54. Re Kerala Education bill, 1959 1 SCR 995……………………………………………………………...32
55. Chandra Bhavan Boarding v. The State Of Mysore And Anr, AIR 1970 2042;1970 SCR (2)
600………………………………………………………………………………………………………..32
56. Keshavananda Bharti v. State of Kerala, (1973) 4 SCC 225……………………………………...…….32
57. Minerva Mills Limited v/s Union of India, AIR 1980 SC 1789, (1980) 3 SCC 625, 1981 1 SCR 206,
1980 (12) UJ 727 SC……………………………………………………………………………….……32
58. Bandhua Mukti Morcha v/s Union of India, AIR 1984 SC 802, 1984 SCR (2)67……………………....33

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 STATEMENT OF JURISDICTION

It is humbly submitted that, the Respondent has appeared before this Hon’ble Court in response to the notice
sent to the Respondent with regard to the writ petition filed by the Petitioner under Article 32 1 of the
Constitution of Aryavarta.

1
Article 32 in The Constitution Of India 1950
32. Remedies for enforcement of rights conferred by this Part -
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is
guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred
by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any
other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause
( 2 ).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
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 STATEMENT OF FACTS

 FACTUAL BACKGROUND
 Aryavarta is a developing country with rich natural resources and Hodu, a state in Aryavarta, is known for
its ancient, historic monuments. Pumpa Nagar, one of the oldest cities in Hodu has a large reservoir of rare
granite (Magma Black).
 Hodu called for bids for the extraction of the rare granite, the tender for which was won by a Joint Venture
between a Mining Company and an MNC. The Mining Company specializes in using imported hi-end
mining technology. The contract was for a period of 15 years for an exclusive lease for 50 acres of land.
The State Govt. however, handed over only 20 acres of land to the Mining Company.
 Despite, the Ministry of Environment, Forest and Climate Change giving a valid clearance for the mining
operations, it declared a part of the region where the mining was carried on as an Eco-Sensitive Zone due to
the presence of a few endangered species of birds and animals.
 The mining site was close to an Ancient monument which was a popular religious and tourist center. An
International NGO after conducting research in the area, concluded that the foundation of the Monument
was deteriorating, even though the mining was carried out reasonably far away from it. The same was also
confirmed by Aryavarta’s National NGO after consulting a renowned geologist, Mr. X.
 Subsequently, The Union Govt. passed an order vide Notification dated 9/11/2017, to immediately cease all
mining and quarrying activities in and around Pumpa Nagar.

 PROCEDURAL BACKGROUND
 The mining activity employed about 200 employees from the surrounding locality. Upon learning the
MNC’s plans to exit the JV because of the State Govt. restricting the mining activity to 20 acres, they
formed a Union and filed a petition before the High Court under Article 226, seeking the State Govt. to
hand over the remaining 30 acres of land.
 Aggrieved by the actions of the Union Govt., the Mining Company filed a Writ Petition before the Supreme
Court under Article 32, questioning the Notification and the violation of their fundamental rights. The Apex
Court also permitted the clubbing of the petition pending before the High Court of Hodu with the Writ
Petition filed before the Apex Court.
 The Union and State Governments are approaching the Supreme Court in reply to the above petition filed
by the Mining Company and the Workers Union.

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 ISSUES FOR CONSIDERATION

1. WHETHER THE WRIT PETITION UNDER ARTICLE 32 IS MAINTAINABLE, BECAUSE

NO FUNDAMENTAL RIGHTS WERE INFRINGED UPON?
2. WHETHER THE NOTIFICATION ISSUED IN ORDER TO PROTECT THE RIGHT TO A
CLEAN ENVIRONMENT AND TO PREVENT FURTHER DETERIORATION OF THE
MONUMENT IS VALID?
3. WHETHER THE IMPORTANCE OF PROTECTING THE MONUMENT AND THE RIGHT
TO A CLEAN ENVIRONMENT PRECEDE THE WORKERS’ RIGHT TO EARN A
LIVELIHOOD?

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 SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE WRIT PETITION UNDER ARTICLE 32 IS MAINTAINABLE, BECAUSE

NO FUNDAMENTAL RIGHTS WERE INFRINGED UPON?

It is humbly submitted that none of the fundamental rights have been violated. The remedies under Article 32
can be invoked only is cases where the fundamental rights have been violated. In the instant case, the Right to
Audi Alteram Partem was not violated because the Notification was issued as per the provisions of the
Environment (Protection) Act, 1986 & Environment (Protection) Rules, 1986 and these provisions do provide
an opportunity of being heard to the aggrieved. Further, the Notification being legislative in nature, the
opportunity of being heard need not be given as a mandatory rule. Therefore, the Petitioner’s contention that not
giving an opportunity of being heard violates Article 14 of the Constitution as it is an arbitrary decision is not
tenable.

ISSUE 2: WHETHER THE NOTIFICATION ISSUED IN ORDER TO PROTECT THE RIGHT TO A

CLEAN ENVIRONMENT AND TO PREVENT FURTHER DETERIORATION OF THE
MONUMENT IS VALID?

It is humbly submitted that the Notification was issued in pursuance of the research report of the International
NGO and the subsequent confirmation by the National NGO after its consultation with the renowned expert,
Mr. X. The right to a clean and healthy environment is a fundamental right as recognized in Article 21 of the
Constitution and as a Directive Principles of State Policy in Article 48A; and the protection of ancient
monuments is recognized as an obligation of the State in the Directive Principles of State Policy in Article 49 of
the Constitution. Therefore, the Notification was issued in accordance of the above constitutional provisions,
and is hence valid.
It is further submitted that the Doctrine of Promissory Estoppel is not violated in the instant case as the
Notification was issued in the public interest and the public interest was of such nature that it could override the
doctrine.

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ISSUE 3: WHETHER THE IMPORTANCE OF PROTECTING THE MONUMENT AND THE RIGHT
TO A CLEAN ENVIRONMENT PRECEDE THE WORKERS’ RIGHT TO EARN A LIVELIHOOD?

It is humbly submitted that The Right to a clean and healthy environment which is a fundamental right as well
as a Directive Principles of State Policy and the obligation of the State to protect ancient monuments as required
by the Directive Principles of State Policy is more important than the workers’ right to earn a livelihood, though
it may be a fundamental right. When there is a conflict between the provisions of the Constitution, it is always
prudent to take into consideration, the ancillary provisions to decide on which course of action better reflects the
requirements of the Constitution. In the instant case, when the Government’s actions are supported by the
fundamental rights, directive principles of state policy and fundamental duties, it can be inferred that the right to
livelihood which is purely commercial in nature can be compromised for the greater public interest.

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 WRITTEN SUBMISSIONS

1. WHETHER THE WRIT PETITION UNDER ARTICLE 32 IS MAINTAINABLE, BECAUSE

NO FUNDAMENTAL RIGHTS WERE INFRINGED UPON?

1.1 THAT THE PETITION IS NOT MAINTAINABLE BECASAUSE NO FUNDAMENTAL RIGHTS

ENSHRINED IN PART III OF THE CONSTITUTION WERE VIOLATED.

1.1.1 It is humbly submitted that, there has been no violation of the fundamental rights since, the action taken
by the State was in furtherance of the principles of social justice and thus cannot be termed as arbitrary
or as one which was without the application of the mind. Therefore writ petition under Article 32 cannot
be maintained.
1.1.2 It is submitted that in a recent case, Poonam v. Sumit Tanwar2, the Supreme Court discussed the scope
of Article 32 of the Constitution. The Bench explained the provision, inter alia as follows;
“7. The citizens are entitled to appropriate relief under the provisions of Article 32 of the
Constitution, provided it is shown to the satisfaction of the Court that the Fundamental Right of the
petitioner had been violated. (Vide Daryao & Ors. Vs. State of U.P. & Ors. AIR 1961 SC 1457).
This Court has a constitutional duty to protect the Fundamental Rights of Indian citizens. (Vide M.C.
Mehta Vs. Union of India AIR 2006 SC 1325). The distinction in a Writ Petition under Article 226 and
Article 32 of the Constitution is that the remedy under Article 32 is available only for enforcement of the
Fundamental Rights, while under Article 226 of the Constitution, a Writ Court can grant relief for any
other purpose also. (Vide A.K. Gopalan Vs. State of Madras AIR 1950 SC 27; Bhagwandas Gangasahai
Vs. Union of India & Ors. AIR 1956 SC 175; Kalyan Singh Vs. State of Uttar Pradesh & Ors. AIR 1962
SC 1183; Fertilizer Corporation Kamagar Union, Sindri & Ors. Vs. Union of India & Ors. AIR 1981 SC
344). Even if it is found that injury caused to the writ petitioner alleging violation of Fundamental
Right is too indirect or remote, the discretionary writ jurisdiction may
not be exercised as held by this Court in State of Rajasthan & Ors. Vs. Union of India AIR 1977 SC
1361”.3
In the same case, it was observed that “9. It is settled legal proposition that the remedy of a person

2
WRIT PETITION (CIVIL) NO. 86 OF 2010, decided on 22-03-2010.
3
Poonam v. Sumit Tanwar, (2010) SC ( para 7).
MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 15
 aggrieved by the decision of the competent judicial Tribunal is to approach for redress a superior
Tribunal, if there is any, and that order cannot be circumvented by resorting to an application for a writ
under Article 32 of the Constitution. Relief under Article 32 can be for enforcing a right conferred by
Part III of the Constitution and only on the proof of infringement thereof.”4

1.1.3 THAT THE RIGHT OF AUDI ALTERAM PARTEM WAS NOT VIOLATED IN ISSUING THE
NOTIFICATION

1.1.4 It is humbly submitted that Sub-Rule 3 of Rule 5 of The Environment (Protection) Rules, 1986, permits
the Central Government to impose prohibition or restrictions on the carrying on of processes and
operations in an area, by notification in the Official Gazette5. Any person interested in filing an
objection against the imposition of prohibition or restrictions on carrying on of processes or operations
as notified under clause (a) may do so in writing to the Central Government within sixty days from the
date of publication of the notification in the Official Gazette6. The Central Government shall within a
period of one hundred and twenty days from the date of publication of the notification in the Official
Gazette consider all the objections received against such notification and may within one hundred
and eighty days from such day of publication impose prohibition or restrictions on location of such
industries and the carrying on of any process or operation in an area7. Therefore, as per above rules, the
Petitioner does have the requisite opportunities of being heard and to file his respective objections.
1.1.5 It is further submitted that the Central Government has been empowered by Section 5 of The
Environment (Protection) Act, 19868 to issue directions for the closure, prohibition or regulation of any

4
Poonam v. Sumit Tanwar, (2010) SC (para 9).
5
(3) (a) Whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the locations Of an
industry or the carrying on of processes and operations in an area, it may by notification in the Official Gazette and in such other
manner as the Central government may deem necessary from time to time, give notice of its intention to do so.
6
Any person interested in filing an objection against the imposition of prohibition or restrictions on carrying on of processes or
operations as notified under clause (a) may do so in writing to the Central Government within sixty days from the date of publication
of the notification in the Official Gazette.(3)(c)
7
The Central Government shall within a period of one hundred and twenty days from the date of publication of the notification in the
Official Gazette consider all the objections received against such notification and may [within one hundred and [eighty] days from
such day of publication] impose prohibition or restrictions on location of such industries and the carrying on of any process or
operation in an area.(3)(d)
8
Prohibitions and restrictions on the location of industries and the carrying on processes and operations in different areas.
MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 16
 industry, operation or process and Clause (5) of Rule 4 of The Environment (Protection) Rules, 1986 9,
permits the Central Government, in cases where the it is of the opinion that in view of the likelihood of a
grave injury to the environment it is not expedient to provide an opportunity to file objections against
the proposed direction, it may, for reasons to be recorded in writing, issue directions without providing
such an opportunity. Therefore, the above rules exempt the Central Government from giving any
opportunity of being heard in special cases.
1.1.6 It is submitted that Legislative action, plenary or subordinate, is not subject to the rules of natural justice
because these rules lay down a policy without reference to a particular individual. In Union of India V.
Cynamide India Ltd10. , the Supreme Court held that no principles of natural justice had been violated
when the government issued a notification fixing the prices of certain drugs. The Court reasoned that
since the notification flowed from a legislative act and not an administrative one so the principles of
natural justice would not apply. Similarly, in the instant case, the Notification issued by the Union Govt.
flows from a legislative act and is not merely administrative in nature.
1.1.7 In Chairman Board of Mining Examination and Anr. v. Ramjee, Krishna Iyer, J 11, speaking for the
Court, pointed out that there may be cases where rules of natural justice can be dispensed with. In this
connection he observed as follows: “Natural justice is no unruly horse, no lurking land mine nor a
judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form,
features and the fundamentals of such essential processual propriety being conditioned by the facts and
circumstances of each situation, no breach of natural justice, can be complained of. Unnatural
expansion of natural justice, without reference to the administrative realities and other factors of a
given case, can be exasperating."
1.1.8 In Bates v. Lord Halsham of St. Marlebone and Ors. 12, under similar circumstances a statutory
committee had made an order in relation to powers to licence hackney carriages. Commenting on this
provision Megarry, J. Observed as follows:-
"In the present case, the committee in question has an entirely different function: it is legislative rather
than administrative or executive. The function of the committee is to make or refuse to make a legislative
instrument under delegated powers. The order, when made, will lay down the remuneration for

9
In case where the Central Government is of the opinion that in view of the likelihood of a grave injury to the environment it is not
expedient to provide an opportunity to file objections against the proposed direction, it may, for reasons to be recorded in writing,
issue directions without providing such an opportunity.
10
Air 1987 SC 1802; 1987 (2) SCR 841; 1987 (2) SCC 720; 1987 (2) Jt 107; 1987 (1) Scale 728 (10 April 1987).
11
AIR 1977 SC 965; 1977 SCR (2) 904.
12
CHD 1972.
MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 17
 solicitors generally; and the terms of the order will have to be considered and construed and applied in
number-less cases in the future... Many of those affected by delegated legislation, and affected very
substantially are never consulted in the process of enacting that legislation, and yet they have no
remedy."
1.1.9 In Laxmi Khandsari v. State of U.P,13 the SC held that notification of The UP Govt. Sugar Cane
(Control) Order, 1966, directing that no power-crusher of Khandsari unit in reserved area of a Sugar mill
will work during the period Oct 9 to Dec 1st, 1980 is legislative in character hence Principles of Natural
Justice in not attracted and there is no violation of the Principles of Natural Justice. It was submitted by
the Attorney General in this case that having regard to the circumstances, the background and the
situation in which the impugned notification was issued under clause 8 of the Control Order, it had a
statutory complexion and should be regarded as purely legislative in character. He added that no one had
ever argued that before passing a legislation, the persons affected by the legislation should he heard, and
that therefore, the question of hearing or complying with the rules of natural justice would not arise. The
Attorney General placed reliance on a decision of this Court in Saraswati Industrial Syndicate Ltd. v.
Union of India.14 and particularly on the following observations made by Beg, J.,-
"Price fixation is more in the nature of a legislative measure even though it may be based upon objective
criteria found in a report or other material. It could not, therefore, give rise to a complaint that a rule of
natural justice has not been followed in fixing the price.”
1.1.10 In the same manner, in Charanlal Shahu v. U.O.I15, where the constitutionality of the Bhopal Gas leak
disaster (processing of claims) Act, 1985 was involved. The SC held: “for legislation by parliament no
principles of natural justice is attracted, provided such legislation is within the competence of
legislature”.
1.1.11 It is also submitted that where the nature of authority is purely administrative no right of hearing can be
claimed. The Supreme Court in Jawaharlal Nehru University v. B.S. Narwal16 held that the very
nature of academic adjudication appears to negative any right of an opportunity to be heard. Therefore if
the competent academic authorities examine and asses the work of a student over a period of time and
declare his work unsatisfactory, the rules of natural justice may be excluded.

13
AIR 1981 SC 873; 1981 SCR (3) 92.
14
AIR 1975 SC 460; 1975 SCR (1) 956.
15
AIR 1990 SC 1480; 1989 SCR supl.(2) 597.
16
AIR 1980 SC 1666; 1981 SCR (1) 618.
MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 18
 In the same manner in Karnataka Public Service Commission v. B.M. Vijay Shanker17when the
commission cancelled the examination of the candidate because, in violation of rules, the candidate
wrote his roll number on every page of the answer-sheet, the Supreme Court held that the principles of
natural justice were not attracted, the Court observed that the rule of hearing be strictly construed in
academic discipline and if this was ignored it would not only be against the public interest but also erode
the social sense of fairness.
1.1.12 It is further submitted that in Keshav Mills Co. Ltd. V. Union of India18 the appellant company after
doing business for 30 years suddenly had to be closed down because of fall in production. As a result,
1200 persons became unemployed. The government in India appointed a commission to inquire into the
affairs of the company under section 15 of the Industries (Development and Regulation) Act, 1951. On
the basis of the report of the inquiry commission, the government passed an order under Section 18-A of
the Act, authorizing the Gujarat State Textile Corporation to take over the Mill for a period of 5years.
This decision was challenged before the Supreme Court and one of the grounds of challenge was that the
report of the inquiry commission was not furnished. The Court held that it was not possible to lay down
any general principle on the question as to whether the report of an investigating body or an inspector
appointed by an administrative authority should be made available to the person concerned before the
authority reaches a decision upon that report. The answer to this question must always depend on the
facts and circumstances of each case. It is not at all unlikely that there may be certain cases where,
unless the report is given to the party, the party concerned cannot make any effective representation
about the action taken on the basis of that report. Whether the report should be furnish or not must,
therefore, depend on the circumstances of every individual case. Therefore, if the non-disclosure of a
report causes any prejudice in any manner to a party, it must be disclosed, otherwise non-disclosure
would amount to a violation of the principles of natural justice. In the instant case, the Notification was
based on the research findings of the NGOs, which are public documents. Therefore, not providing an
opportunity of being heard would not in any manner affect the interests of the Petitioner prejudicially.
Similarly, in Divisional Manager, Plantation Division V. Munnu Barrack 19, the Supreme Court once
again emphasized on ‘prejudice doctrine’ which makes it obligatory on the part of the workman to show
that he had been prejudiced by reason of non-supply of enquiry report. Therefore, principles of natural
justice must be seen in circumstantial flexibility. An administrative action can be quashed only if non-

17
AIR 1992 SC 952; 1992 SCR(1) 668.
18
AIR 1973 SC 389, 1973 SCR (3) 22.
19
AIR 1966 Mad 13; (1965) 1 MLJ 7.
MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 19
 observance of the principles of natural justice has caused serious prejudice to the complainant.
1.1.13 It is further submitted that where prompt action is needed, the Principles of Natural Justice can be
dispensed with. In Maneka Gandhi v. Union of India20,this argument was sought to be supported by
reference to the statement of the law in A.S. de Smith, Judicial Review of Administrative Action, 2nd
ed21. where the learned author says at page 174 that “in administrative law a prima facie right to prior
notice and opportunity to be heard may be held to be excluded by implication-where an obligation to
give notice and opportunity to be heard would obstruct the taking of prompt action, especially action of
a preventive or remedial nature”. In this case the Court recognized the circumstances under which
Principles of natural Justice can be discarded.
1.1.14 It is further submitted that the Rules of natural justice cannot be equated with the Fundamental Rights.
As held by the Supreme Court in Union of India v. J. N. Sinha22, that "Rules of natural justice are not
embodied rules nor can they be elevated to the position of Fundamental Rights. Their aim is to secure
justice or to prevent miscarriage of justice. These rules can operate only in areas not covered by any
law validly made. They do not supplant the law but supplement it. If a statutory provision can be read
consistently with the principles of natural justice, the courts should do 'so. But if a statutory provision
either specifically or by necessary implication excludes the application of any rules of natural justice
then the court cannot ignore the mandate of the legislature or the statutory authority and read into the
concerned provision the principles of natural justice." So also the right to be heard cannot be presumed
when in the circumstances of the case there is paramount need for secrecy or when a decision will have
to be taken in emergency or when promptness of action is called for where delay would defeat the very
purpose or where it is expected that the person affected would take an obstructive attitude. 23
1.1.15 Further, it is submitted that in State of Gujarat V. M.P. Shah Charitable Trust 24, the Supreme Court
held that the principles of natural justice are not attracted in case of termination of an arrangement in
any contractual field. Termination of an arrangement/agreement is neither a quasi-judicial nor an
administrative act so that the duty to act judicially is not attracted.
1.1.16 Finally, it is submitted that in Balco Employees Union V. Union of India25, the Apex Court was of the
view that in taking of a policy decision in economic matters at length, the principles of natural justice

20
AIR 1978 597, 1978 SCR (2) 621.
21
A.S DE SMITH, JUDICIAL REVIEW OF ADMINISRATIVE ACTION 174(2nd ed. 1968).
22
AIR 1971 SC 40;1971 SCR (1) 791.
23
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
24
1994 SCC (3) 552;JT 1994 (3)96; 1994 SCALE (2)374.
25
Transfer Case (civil) 8 of 2001.
MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 20
 have no role to play. In this case employees had challenged the government’s policy decision regarding
disinvestment in Public sector undertakings. The Court held that even though workers may have
interest in the decision, but unless the policy decision to disinvest is capricious, arbitrary, illegal or
uninformed , and is not contrary to law, the decision cannot be challenged on the grounds of
violation of the principles of natural justice. Therefore, if in exercise of executive powers the
government takes any policy decision, principles of natural justice can be excluded because it will be
against public interest to do so.
1.1.17 It is therefore, humbly submitted that for the aforesaid reasons, the Principles of Natural Justice as
described by the maxim “Audi Alteram Partem” was not violated by the Government in the instant case.

-X-X-X-X-X-X-

MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 21

2. WHETHER THE NOTIFICATION ISSUED IN ORDER TO PROTECT THE RIGHT TO A
CLEAN ENVIRONMENT AND TO PREVENT FURTHER DETERIORATION OF THE
MONUMENT IS VALID?

2.1 THAT, THE RIGHT TO A CLEAN ENVIRONMENT IS A RIGHT RECOGNISED BY THE

CONSTITUTION AND THE PROTECTION OF MONUMENTS IS AN OBLIGATION OF THE STATE
AS PART OF THE DIRECTIVE PRINCIPLES OF STATE POLICY.

2.1.1 It is humbly submitted that the Notification was issued in pursuance of the research report of the
International NGO and the subsequent confirmation by the National NGO after its consultation with the
renowned expert, Mr. X. This Notification was issued as a measure to protect the environment and the
monument from further degradation. Actions to protect the environment are usually based on principles
such as sustainable development, precautionary principle and polluter pays principle.26
2.1.2 It is submitted that in the 1972, Stockholm Conference, an international consensus about the
environment challenge was reached. The main gist of the Stockholm Declaration is that “man has the
fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality
that permits a life of dignity and wellbeing and he bears a solemn responsibility to protect and
improve the environment for present and future generation.” 27
2.1.3 It is further submitted that the 1980 International Union for the Conservation of Nature published a
world conservation strategy that included one of the first references to sustainable development as a
global priority28 and introduced the term "sustainable development"29. Two years later, the United
Nations World Charter for Nature raised five principles of conservation by which human conduct
affecting nature is to be guided and judged 30 .In 1987 the United Nations World Commission on
Environment and Development released the report Our Common Future, commonly called the
Brundtland Report. The report included what is now one of the most widely recognized definitions of

26
Vellore Citizens Welfare Forum vs. Union of India, AIR 1996 SC 2715.
27
Principle 1 of the Stockholm Declaration,1972.
28
World Conservation Strategy: Living Resource Conservation for Sustainable Development. International Union for Conservation of
Nature and Natural Resources. 1980
29
JEFFERY D. SACHS, THE AGE OF SUSTAINANBLE DEVELOPMENT (2015)..
30
World Charter for Nature, United Nations, General Assembly, 48th Plenary Meeting, October 28, 1982.
MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 22
 sustainable development.31
“Sustainable development is development that meets the needs of the present without compromising the
ability of future generations to meet their own needs. It contains within it two key concepts:
The concept of 'needs', in particular, the essential needs of the world's poor, to which overriding
priority should be given; and
The idea of limitations imposed by the state of technology and social organization on the environment's
ability to meet present and future needs. ”
— World Commission on Environment and Development, Our Common Future (1987).
Therefore, there is an urgent need to maintain a balance between the demands of development and the
levels of environmental protection in order to ensure sustainable development. Since pollution is the
major cause of environmental degradation and of imbalance, so, pollution control will be of greater
significance for sustainable development.
2.1.4 It is further submitted that The Principle 15 of the Rio Declaration notes: "In order to protect the
environment, the precautionary approach shall be widely applied by States according to their
capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty
shall not be used as a reason for postponing cost-effective measures to prevent environmental
degradation."32
The 1998 Wingspread Statement on the Precautionary Principle summarizes the principle this way:
"When an activity raises threats of harm to human health or the environment, precautionary
measures should be taken even if some cause and effect relationships are not fully established
scientifically."33 The Wingspread Conference on the Precautionary Principle was convened by the
Science and Environmental Health Network. Therefore, from the above paragraphs, it can be inferred
that protection of environment mandates greater significance than the development and protection of
economic interests.
2.1.5 It is further submitted that the backbone of environment protection is the relevant provisions in India’s
Constitution. The Constitution of India, 1950, did not include any specific provision relating to
environment protection or nature conservation. However, the first major development took place when
the Constitution (Forty-second Amendment) Act, 1976, was adopted in the mid-seventies. Specific

31
World Charter for Nature, United Nations, General Assembly, 48th Plenary Meeting, October 28, 1982;
SMITH,CHARLES;REES,GARETH,ECONOMIC DEVELOPMENT(2ND ed.,1998).
32
UNEP. "Rio Declaration on Environment and Development". Retrieved 29 October 2014.
33
Staff, Science and Environmental Health Network., Wingspread Conference on the Precautionary Principle(January 1998).
MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 23
 provisions relating to certain aspects of the environment were incorporated in Part IV- Directive
Principles of the State Policy – and List III – The Concurrent List – of the Seventh Schedule of the
Constitution. As a result, the Constitution has now the following provisions specifically relating to
environment protection and nature conservation:
 Part IV: Directive Principles of State Policy (Article 48A): Protection and improvement and
safeguarding of forests and wild life: The State shall endeavor to protect and improve the
environment and to safeguard the forests and wild life of the country.
 Part IV: Directive Principles of State Policy (Article 49): Protection of monuments and places and
objects of national importance: It shall be the obligation of the State to protect every monument or
place or object of artistic or historic interests, declared by or under law made by Parliament to be of
national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the
case may be.
 Part IV-A: Fundamental Duties (Article 51-A): It shall be the duty of every citizen of India – (g) to
protect and improve the natural environment including forests, lakes, rivers and wild life, and to
have compassion for living creatures.
 Seventh Schedule (Article 246) List III - Concurrent List Item no. 17 Prevention of cruelty to
animals, Item no. 17A Forests, Item no. 17B Protection of wild animals and birds. 34
The second major development has been the jurisprudence arising from certain judicial pronouncements
in recent years, more specially relating to Article 21 of the Constitution dealing with ‘the right to life’.

2.1.6 It is submitted that the right to healthy environment has been incorporated, directly or indirectly, into the
judgments of the court. The link between environmental quality and the right to life was first addressed
by a constitutional bench of the Supreme Court in the Charan Lal Sahu Case 35(Bhopal Gas Leak
Case), the Supreme Court interpreted the right to life guaranteed by article 21 of the Constitution to
include the right to a wholesome environment.
2.1.7 It is further submitted that in Subash Kumar36, the Court observed that ‘right to life guaranteed by
article 21 includes the right of enjoyment of pollution-free water and air for full enjoyment of life.’
Through this case, the court recognized the right to a wholesome environment as part of the fundamental

34
See ARMIN ROSENCRANZ AND SHYAM DIVAN, ENVIRONMENTAL LAW AND POLICY IN INDIA: CASES,
MATERIALS AND STATUTES. (2nd ed.,2002)
35
Charan Lal Sahu v. Union Of India And Ors on 22 December, 1989.
36
Subhash Kumar v. State of Bihar ,AIR 1991 SC 420; 1991 (1) SCC 598.
MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 24
 right to life. This case also indicated that the municipalities and a large number of other concerned
governmental agencies could no longer rest content with unimplemented measures for the abatement
and prevention of pollution. They may be compelled to take positive measures to improve the
environment. This was reaffirmed in M.C. Mehta v. Union of India 37 The case concerned the
deterioration of the world environment and the duty of the state government, under article 21, to ensure
a better quality of environment. The Supreme Court has held that life, public health and ecology have
priority over unemployment and loss of revenue. The Supreme Court ordered the Central government to
show the steps they have taken to achieve this goal through national policy and to restore the quality of
environment.
2.1.8 It is further submitted that in Shanti Star Builders vs. Narayan Totame38, the Supreme Court held that
right to life is guaranteed in a civilized society and would take within its sweep the right to food, the
right to clothing, the right to decent environment and a reasonable accommodation to live in. Similarly,
in Subhash Kumar vs. State. of Bihar39, the Supreme Court held that right to life is a fundamental
right under Art. 21 of the Constitution and it include the right to enjoyment of pollution free water and
air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws a
citizen has recourse to Art.32 of the Constitution for removing the pollution of water or air which may
be detrimental to life.
2.1.9 It is further submitted that in M. C. Mehta vs. Union of India40 (the Oleum Gas Leak case), the
Supreme Court established a new concept of managerial liability – ‘absolute and non-delegable’ – for
disasters arising from the storage of or use of hazardous materials from their factories. The enterprise
must ensure that no harm results to anyone irrespective of the fact that it was negligent or not.
2.1.10 It is further submitted that in Vellore Citizens Welfare Forum vs. Union of India41, the Supreme Court
held that industries are vital for the country’s development, but having regard to pollution caused by
them, principle of ‘Sustainable Development’ has to be adopted as the balancing concept.
‘Precautionary Principle’ and ‘Polluter Pays Principle’ has been accepted as a part of the law of the
country.
2.1.11 It is further submitted that in Indian Council of Enviro-Legal Action vs. Union of India42(the Bichhri

37
M.C. Mehta v. Union of India AIR 1991 SC 813 (Vehicular Pollution Case).
38
1990(1) SCC 520.
39
1991) 1 SCC 598.
40
1987 SCR (I) 819.
41
AIR 1996 SC 2715.
42
1996 3 SCC 212.
MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 25
 pollution case), following the decision in the Oleum Gas leak case and based on the polluter pays
principle, the polluting industries were directed to compensate for the harm caused by them to the
villagers in the affected areas, specially to the soil and to the underground water. Enunciating the
doctrine of ‘Public Trust’ in M. C. Mehta vs. Kamal Nath43 , the SC held that resources such as air,
sea, waters and the forests have such a great importance to the people as a whole that by leasing
ecologically fragile land to the Motel management, the State Government had committed a serious
breach of public trust.
2.1.12 It is also submitted that there have been many initiatives in Public Interest Litigation (PIL) vis-à-vis
environment protection. Some of these include the cases against the construction of the Tehri Dam 44
and Narmada Dams45 against deforestation46 (T. N Godavarman Thirumulpad vs. Union of India,
2000 SC 1636, a case that has since then spawned dozens orders pertaining to forests in India); against
mining in the Aravallis 47 against mining in the Dehra Dun hills48 against mining in adivasi lands of
Andhra Pradesh 49, a judgment with important consequences for acquisition or use of adivasi lands
elsewhere too); on implementation of the Wild Life (Protection) Act 1972 50; on implementation of
Coastal Regulation Zone measures 51 on protection of the coastal area against destructive practices 52
(Prof.Sergio Carvalho v. The State of Goa), on the right of citizens to inspect official records (this was
before the Right to Information Act came into force) 53(Goa Foundation vs. North Goa Planning and
Development Authority. 1995(1) GLT 181); against forest logging and other environmental aspects of
Andaman and Nicobar Islands. These judgments clearly highlight the importance of environment
protection in India.
2.1.13 It is further submitted that in Perumatty Grama Panchayat v. State Of Kerala on 16 December,
200354, the license to operate the Coca-Cola factory was revoked by the Panchayat because the
Company’s activities were leading to a water scarcity. Subsequently, the Company appealed the license
revocation to the State Govt., which directed the Panchayat to investigate and only then to take a

43
(1997) 1 SCC 388.
44
Tehri Bandh Virodhi Sangharsh Samiti vs. State of Uttar Pradesh, 1992 SUP (1) SCC 44.
45
Narmada Bachao Andolan vs. Union of India AIR 1999 SC 3345.
46
T. N Godavarman Thirumulpad vs. Union of India, 2000 SC 1636.
47
Tarun Bharat Sangh, Alwar vs. Union of India 1992 SC 514, 516.
48
Dehradun vs. State of Uttar Pradesh, 1985 SC 652.
49
Samatha vs. State of Andhra Pradesh, 1997.
50
WWF vs. Union of India, WP No 337/95.
51
Indian Council for Enviro-Legal Action vs. Union of India, 1996(3) 579.
52
Prof.Sergio Carvalho vs. The State of Goa, 1989 (1) GLT 276.
53
Goa Foundation vs. North Goa Planning and Development Authority. 1995(1) GLT 181.
54
2004 (1) KLT 731.
MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 26
 decision. The Panchayat filed a Writ Petition at the Kerala HC against this interference. The Company
argued that there were no statutory provisions prohibiting the digging of bore wells. The Court rejected
this argument as it was incompatible with the emerging environmental jurisprudence developed around
Article 21 of the Constitution of India. The Court observed - Principle 2 of Stockholm Declaration,
1972 reads as follows:-
"The natural resources of the earth, including the air, water, land, flora and fauna especially
representative samples of natural eco-systems, must be safeguarded for the benefit of present and future
generations through careful planning or management, as appropriate."
The Court in the above case observed that the State and its instrumentalities should act as trustees of this
great wealth. The State has got a duty to protect ground water against excessive exploitation and the
inaction of the State in this regard will tantamount to infringement of the right to life of the people
guaranteed under Article 21 of the Constitution of India. The water extraction by the Company was held
to be illegal.
2.1.14 It is submitted that in Research Foundation for science Technology and Natural resources Policy v.
Union of India 55 Dumping of hazardous waste, whether directions shall be issued for destruction of
consignments with a view to protect environment and, if not, in what other manner consignments may
be dealt with it was held, precautionary principles are fully applicable to facts and circumstances of
the case and only appropriate course to protect environments is to direct destruction of consignments by
incineration as recommended by Monitoring Committee.
2.1.15 It is submitted that in Intellectuals Forum, Tirupathi v. State of AP56 raised two kinds of questions.
In this case the Court has reiterated the importance of the Doctrine of Public Trust in maintaining
sustainable development which has been declared as inalienable human right by UN General
Assembly.
2.1.16 It is submitted that in Karnataka Industrial Areas Development Board v. C. Kenchappa and
others57 in consonance with the principle of 'Sustainable Development', a serious endeavor has been
made in the impugned judgment to strike a golden balance between the industrial development and
ecological preservation.
2.1.17 It is therefore submitted that Article 48A mandates that the State shall strive to protect the environment
and Article 49 requires the State to protect every monument and objects of historic interests. The Right

55
Research Foundation for science Technology and Natural resources Policy v. Union of India and Another, SC 2005.
56
Intellectuals Forum v. State of A.P. (2006) 3 SCC 549.
57
Appeal (civil) 7405 of 2000, decided on 12-05-2006.
MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 27
 to Clean and Healthy Environment is also part of the Fundamental Rights as enshrined in Article 21.
Hence, the Notification issued by the Union Government is in accordance with the provisions of the
Constitution and is valid.

2.2 THAT THE NOTIFICATION DOES NOT RESULT IN A VIOLATION OF THE DOCTRINE OF
PROMISSORY ESTOPPEL AND THE GOVERNMENT IS FREE TO PROHIBIT THE MINING
ACTIVITIES

2.2.1 It is humbly submitted that the principles of estoppel cannot override the provisions of a statute. Where a
statute imposes a duty by positive action, estoppel cannot prevent it. The doctrine cannot also be
invoked to prevent the legislative and executive organs of the Government from performing their duties.
In Jit Ram Shiv Kumar v. State of Haryana58 , a municipality granted exemption from octroi for
developing a mandi, but subsequently is revoked the exemption. Later it again granted the exemption in
keeping with the terms of the original sale of plots, but levied taxes again. Even so, a claim of estoppel
against its legislative power was not allowed.
In the instant case, it is submitted that the Notification is legislative in nature and has been made for
public interest. Therefore, there is no estoppel against the Government.
2.2.2 It is further submitted that in Nirma Ltd. vs. Ministry of Environment & Forests & Ors. 59, the
Environment Clearance for a proposed cement plant was obtained by the proponent from the MoEF
was subsequently revoked by the Govt. in light of new facts that had emerged, regarding certain
deficiencies in the EIA as well as the public hearing.
2.2.3 It is further submitted that in PTR Exports Pvt. Ltd. v. Union of India60 , it was held that the doctrine
of legitimate expectation plays no role when the appropriate authority is empowered to take a decision
by an executive policy or under law. The court leaves the authority to decide its full range of choice
within the executive or legislative power in matters of economic policy. It is well settled in law that the
court accepts the wide power vested on the executive and legislature. Granting license for import or
export is an executive or a legislative policy. The government would take diverse factors for formulating
the policy for import or export of the goods granting relatively greater priority to various items in the
overall interest of the economy of the country. It is, therefore, within the power of the executive or the

58
AIR 1980 1285, 1980 SCR (3) 689.
59
NGT[New Delhi] APPEAL No. 04 OF 2012.
60
1996 (5) SCC 268.
MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 28
 legislature to evolve such policies. A private decision would not bind the government for all times
together. When the government is satisfied that the change in policy is necessary in public interest, it
would be entitled to revise the policy and lay down the new policy. The court, therefore, would prefer to
allow free play to government to evolve a new policy in public interest and to act upon the same.
Equally, the government is free to determine priorities in matters of allocation or utilization of its
finance in public interest.
2.2.4 It is further submitted that in STO v. Shri Durga Oil Mills61 , the question before the Supreme Court
was whether the government had made any promise to the respondent and if so, can it depart from the
promise so made? Allowing the appeal, the Supreme Court held that Industrial Policy Resolution (IPR)
can be changed if there is an overriding public interest. Considering the peculiar economic situation, the
scope of the earlier notification had to be restricted. Withdrawal of notification was done in public
interest. Public interest must override any consideration of private loss or gain.
2.2.5 It is further submitted that in Panval Alloys & Castings Pvt. Ltd. Vs. Utter Pradesh state Electricity
Board62 , the SC held that the state can withdraw its promise or representation even before the expiry of
the specified period on the ground of overriding public interest or by giving reasonable opportunity to
the promisee to resume his earlier position if restoration of status quo ante is possible.
2.2.6 It is further submitted that, In N.L. Dalmia Vs. Union of India 63 the maintainability of writ petitions
against government in contractual matters was considered. The dispute arose out of a contract for
supply of goods. The government, alleging non supply of goods before the stipulated date, cancelled the
contract. The petitioner claimed the value of the goods which he had already supplied. Writ petition was
filed by the petitioner. Supreme Court dismissed the writ petition saying that the contractual right
could not be enforced through writ petitions. Supreme Court took the view that in case of contracts
where general complicated questions of facts are involved, the same cannot be resolved in the High
Court or Supreme Court on the basis of affidavits.
2.2.7 It is further submitted that the government can change its policy at any time in public interest. As far as
principle of promissory estoppel is concerned, question is whether its applicability is conditioned by the
change of policy by the public authorities in public interest. In Ramanatha Pillai v. State of Kerala 64,
Supreme Court refused to interfere in the abolition of a post which was being held by the petitioner. Mr.

61
AIR 1998 Orissa 163.
62
1997 (7) SCC 251.
63
AIR 1976 Del 154.
64
AIR 1973 SC 2641.
MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 29
 Ramanatha Pillai was an advocate practicing in the High Court of Kerala. His contention was that he had
left his lucrative practice to take up the office which was offered to him. His contention was negatived
by the Supreme Court since the abolition of the post was done by the government in public interest.
After Ramanatha Pillai’s case, a series of decisions were made where public interest was made to
prevail over private interest.
Similarly, in In Achuthan Pillai v. State of Kerala65 the petitioner filed applications for clear felling of
trees on the land on lease with Devaswom. The lease was granted in favor of the petitioner by the
Commissioner of Hindu Religious & Charitable Endowments. The government allowed the application
for clear felling. Later, after seven years, the government cancelled the lease of the land. This action of
the Government was challenged stating that relying on the promise made by the Government, the
petitioner has altered his position by investing substantial amount. The challenge of the cancellation by
the petitioner was repelled by the court
Similarly, in Vittal Rao Mahale v. State of Madhya Pradesh66 , the Supreme Court observed that the
government is free to modify its policy from year to year depending on various factors
2.2.8 It is further submitted that in R.K. Daka v. Union of India67 , the Government, in 1978, announced a
scheme to allot land to non-resident Indians for construction of house. The petitioner's application for
allotment of house plot was sanctioned. Later, government in public interest dropped the entire scheme
stating that it was a non-priority one. The petitioner's plea on promissory estoppel was rejected by the
court and the court observed "public policy should not and does not remain static".
2.2.9 It is further submitted that in Malhotra & Sons Vs. Union of India 68, the court observed “the court
will not bind the government by its promise to prevent manifest injustice or fraud and will not make the
government a slave of its policy for all times to come when the government acts in its governmental,
public or sovereign capacity". Similarly, the court observed "the authority has to exercise its
discretionary power as and when it ought to exercise as required by the statute and the courts may not
prevent the authority in genuine exercise of discretionary statutory powers"
2.2.10 It is therefore humbly submitted that the Union Government is free to issue the Notification in the public
interest and it cannot be bound to the contract entered with the Mining Joint Venture.
-X-X-X-X-X-X-

65
AIR 1972 Kerala 39.
66
AIR 1984 MP 170.
67
AIR 1984 Del 413.
68
AIR. 1976 Jammu & Kashmir 41.
MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 30
3. WHETHER THE IMPORTANCE OF PROTECTING THE MONUMENT AND THE RIGHT TO A
CLEAN ENVIRONMENT PRECEDE THE WORKERS’ RIGHT TO EARN A LIVELIHOOD?

3.1 It is humbly submitted that Article 49, Part IV, of the Constitution (Directive Principles of State Policy)
mandates the State to Protect monuments and places and objects of national importance: It shall be the
obligation of the State to protect every monument or place or object of artistic or historic interests,
declared by or under law made by Parliament to be of national importance, from spoliation,
disfigurement, destruction, removal, disposal or export, as the case may be.
A "Monument of National Importance" is designated by the Archaeological Survey of India and includes
the remains of an ancient monument.69
An ancient monument is defined as “Ancient Monument means any structure, erection or monument, or
any tumulus or place of interment, or any cave, rock-sculpture, inscription or monolith which is of
historical, archaeological or artistic interest and which has been in existence for not less than 100 years”70
It is therefore, submitted that the Monument in the instant case is a Monument of National Importance.
3.2 It is humbly submitted that Article 48A, Part IV, of the Constitution (Directive Principles of State Policy)
mandates the State to Protect and improve and safeguard forests and wild life: The State shall endeavor
to protect and improve the environment and to safeguard the forests and wild life of the country.
Therefore, the protection of the environment and the monument form an important part of the Directive
Principles of State Policy.
It is also submitted that the environment is protected under the Right to Clean and Healthy Environment
enshrined in Article 21 of the Constitution.
3.3 It is humbly submitted that Article 51A, Part V, of the Constitution (Fundamental Duties), Clause (g)
requires every citizen to protect and improve the natural environment including forests, lakes, rivers and
wild life, and to have compassion for living creatures.
3.4 It is further submitted that Article 51A, Part V, of the Constitution (Fundamental Duties), Clause (i)
requires every citizen to safeguard public property and to abjure violence. Therefore the fundamental
duties requires every citizen to protect the environment and to safeguard public properties such as ancient
monuments.

69
http://asi.nic.in/asi_monuments.asp (browsed on 12/10/2017, 24/12/2017, 06/01/2018, 12/01/2018)
70
Archaeological Sites and Remains Act, 1958.
MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 31
3.5 THAT, WHERE THERE IS A CONFLICT BETWEEN DIRECTIVE PRINCIPLES OF STATE
POLICY AND FUNDAMENTAL RIGHTS, THE FUNDAMENTAL RIGHTS SHOULD BE
INTERPRETED IN THE LIGHT OF THE DPSP TO OBSERVE THE LIMITS SET BY DPSP

3.5.1 It is submitted that the dichotomy between part III and part IV and the supremacy of the former over the
latter, a theory based on formalistic and too textual an interpretation, in Champakam Dorairajan 71 did
not last for long time. In the above case, a government order of the Madras government divided seats in
colleges on the basis of religion and caste. This was repugnant to article 29(2). But it was argued that the
government order could be supported on the basis of article 46 of the constitution which makes the state
responsible for promoting the education interests of the weaker sections of people. The Supreme Court
held that the fundamental rights under Article 29(2) over the Directive principle under article 46. So the
government order was struck down. It was held that in case of any conflict between part III and part
IV, the part III would prevail. These observations of the court were based on the literal interpretation of
the provision of article 37 which declares the directive principle not justifiable.
3.5.2 It is submitted that in Re Kerala Education bill72, the Supreme Court observed “though the directive
principles cannot override the fundamental rights, nevertheless, in determining the scope and ambit of
fundamental rights the court could not entirely ignore the directive principles but should adopt the
principle of harmonious construction and should attempt to give effect to both as much as possible”.
The Supreme Court began to assert that there is “no conflict on the whole” between the fundamental
rights and the directive principles. They are complementary and supplementary to each other.
3.5.3 It is submitted that in Chandrabhavan73and Kesavananda Bharati74 cases inaugurated a new era of
integrationist approach which could emphasize the under pinning of interrelated value of part III and
part IV. Kesavananda Bharati’s case stood for penetration of the notion of distributive justice under
Article 39(b) and (c) into the property relations by upholding the constitutionality of Article 31c.
Judicial review, by removing unreasonable provisions monitored this process. In Kesavananda’s Case,
it was held that the Parliament was empowered to amend the Fundamental Rights for giving effect to
Directive Principles of State Policy, provided the Basic Structure of the Constitution remains
unaltered.

71
State of Madras v. Champakam Dorairajan, AIR 1951 226, 1951 SCR 525.
72
1959 1 SCR 995.
73
Chandra Bhavan Boarding v. The State Of Mysore And Anr, AIR 1970 2042;1970 SCR (2) 600.
74
Keshavananda Bharti v. State of Kerala , (1973) 4 SCC 225.
MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 32
3.5.4 The parliament subsequently passed the 42nd Amendment, empowering it to amend any provision of the
Constitution, even the Basic Structure of the Constitution. It added clauses (4) and (5) in Article 368,
which gave the parliament greater power to amend.
3.5.5 It is submitted that in Minerva Mills Limited v/s Union of India75, the court observed that the
constitution was founded on the bed-rock of balance between part III and part IV. To give absolute
primacy to one over the other was to disturb the harmony of the constitution. This harmony and balance
between fundamental rights and the directive principles is an essential feature of the basic structure of
the constitution. Both the fundamental and directive principles of the state policy are embodying the
philosophy of our constitution, the philosophy of justice social economic and political. They are the two
wheels of the chariot as an aid to make social and economic democracy a truism. In this case the clauses
(4) and (5) of Article 368 was struck down and the Basic Structure Doctrine was retained.
3.5.6 It is submitted in Bandhua Mukti Morcha v/s Union of India76, the approach of sticking to strict
legalism in the implementation of laws enforcing directive principles, which in turn promote
fundamental rights, has increased the role of directive principles in the inter-relationship doctrine.
The integrative approach towards fundamental rights and directive principles or that the both should be
interpreted and read together has now come to hold the field. It has now become a judicial strategy to
read fundamental rights along with Directive principles with a view to define the scope and the ambit of
the former. Mostly, directive principles have been used to broaden and to give depth to some
fundamental rights and to imply some more rights therein for the people over and what are expressly
stated in the fundamental rights.
3.5.7 It is therefore humbly submitted, that in light of the afore-mentioned reasons, the Protection of the
Monument and the Right to Clean Environment takes precedence over the Right of Livelihood of the
Workers, the latter being only a Fundamental Right in purely commercial terms while the former (Right
to Clean Environment) is both a Directive Principle of State Policy as well as a Fundamental Right.

-X-X-X-X-X-X-

75
AIR 1980 SC 1789, (1980) 3 SCC 625, 1981 1 SCR 206, 1980 (12) UJ 727 SC.
76
AIR 1984 SC 802, 1984 SCR (2)67.
MEMORANDUM ON BEHALF OF THE RESPONDENTS Page 33
 PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities cited, it is most
humbly prayed before this Hon’ble Supreme Court, that it may graciously be pleased to-

1. Dismiss the instant Writ Petition.

2. Hold that there were no violations of Fundamental Rights of any persons by the actions of the
Government of Aryavarta and the State of Hodu.
3. Rescind or Cancel the Contract of Mining with the Joint Venture Mining Company.

And pass any other order in favor of the Respondent which this Court may deem fit and proper in the
circumstances of the case.

All of which is most humbly and respectfully submitted.

Sd/-

Counsels for the Respondents

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