Professional Documents
Culture Documents
.Appellants
v.
Union Of Aressia
.Respondents
TABLE OF CONTENTS
ABBREVIATIONS..........................................................................................................................3
INDEX OF AUTHORITIES............................................................................................................4
CASES.........................................................................................................................................4
BOOKS........................................................................................................................................6
INTERNATIONAL TREATIES AND CONVENTIONS AND STATISTICAL RECORDS.....8
STATUES REFERRED...............................................................................................................8
IMPORTANT DEFINITIONS.....................................................................................................8
STATEMENT OF JURISDICTION................................................................................................9
STATEMENT OF FACTS.............................................................................................................10
STATEMENT OF ISSUES............................................................................................................12
SUMMARY OF ARGUMENTS...................................................................................................13
ARGUMENTS ADVANCED........................................................................................................14
ISSUE ONE...............................................................................................................................14
ISSUE TWO..............................................................................................................................20
ISSUE THREE..........................................................................................................................25
ISSUE FOUR.............................................................................................................................30
PRAYER........................................................................................................................................35
2
Memorial on behalf of the Petitioners
ABBREVIATIONS
Paragraph
ACLU
AIR
ALR
Art.
Article
CERA
DPA
EC
Environmental Clearance
EIA
EPA
Factsheet
FC
Forest Clearance
FCA
FER
HLEC
Hon'ble
Honourable
ICCPR
MoEF
NGT
PIL
SC
Supreme Court
SCC
UDHR
3
Memorial on behalf of the Petitioners
INDEX OF AUTHORITIES
CASES
A. P. Pollution Control Board v. Prof. M. V. Nayadu, AIR 1999 SC 812......................................33
Alchemist Ltd. v. State Bank of Sikkim, (2007) 11 SCC 335 : AIR 2007 SC 1812......................19
Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759.......................................15
Att. Gen for Canada v. Att. Gen. for British Columbia, 1930 A.C. 111........................................21
Att. Gen. for Saskatchewan v. Att. Gen. for Canada, AIR 1949 P.C. 190.....................................21
Bangalore Medical Trust v. B. S. Muddappa, AIR 1991 SC 1902................................................32
Bokaro v. State of Bihar, AIR 1963 SC 516 : 1962 (Supp-3) SCR 831........................................17
Budhan v. State of Bihar, AIR 1970 SC 1453: (1969) 2 SCC 166................................................26
Calcutta Gas Co. v. State of West Bengal., AIR 1962 SC 1044 (1047) : 1962 (Supp-3) SCR 1...17
Central Bank of India Ltd. v. Ram Narain, AIR 1955 SC 36 at 38...............................................19
Citizens Insurance Company v. Parsons, 7 A.C. 96.......................................................................21
D. M. Singhvi v. Union of India, AIR 2005 Raj 280.....................................................................29
DDA v. Joint Action Committee, (2008) 2 SCC 672 (678)...........................................................20
DevDutt v. Union of India, (2008) 8 SCC 725..............................................................................20
Entertainment Network (I) Ltd. v. Super Cassette Industries, 2008 (9) SCALE 69................14, 18
France v. Spain (Lake Lanoux Arbitration), (1957) 12 R.I.A.A. 281; 24 I.L.R. 101....................15
Gramophone Company of India
AND
7
Memorial on behalf of the Petitioners
JUSTINE THORNTON, M.A. (CANTAB.) & SILAS BECKWITH, LL.B (LOND.), SWEET
&MAXWELLS TEXTBOOK SERIES ENVIRONMENTAL LAW,(2nd Ed, Sweet &Maxwell,
2004)
10. P LEELAKRISHNAN, ENVIRONMENTAL LAW CASE BOOK, (2nd Ed, Lexis Nexis Butterworth
Wadhwa, Nagpur, 2010)
11. 1-2 ALPANA PODDER, LALS ENCYCLOPEDIA ON ENVIRONMENTAL PROTECTION AND
POLLUTION LAWS, (5th Ed, Delhi Law House, 2013)
12. DR. G. INDIRA PRIYA DARSINI & PROF. K. UMA DEVI, ENVIRONMENTAL LAW AND
SUSTAINABLE DEVELOPMENT, (Regal Publications, 2010)
13. A. VAIDYANATHAN, OXFORD INDIA SHORT INTRODUCTIONS, (1st Ed, Oxford University
Press, 2013)
14. DR. RATHIN BANDOPADHYAY & DR. RAJENDRA DHAR DUBEY, AN INTRODUCTION TO
ENVIRONMENTAL RIGHTS , (1st Ed, Central Law Publications, 2010)
15. INDRAJIT DUBE, ENVIRONMENTAL JURISPRUDENCE POLLUTERS LIABILITY, (Lexis Nexis
Butterworths, 2007)
16. O.V.NANDIMATHM, HANDBOOK
OF
OF INTERNATIONAL
WITH
Press, 2012)
8
Memorial on behalf of the Petitioners
OF
9
Memorial on behalf of the Petitioners
STATEMENT OF JURISDICTION
The Honble Supreme Court of Aressia has inherent jurisdiction to try, entertain and dispose of
the present case by virtue of Article 131, 32 and 136 of The Constitution of India, 1950. Also
under S. 22 of National Green Tribunal Act, 2010 read with S. 100 of the Code of Civil
Procedure, 1908 the Supreme Court is empowered to hear appeal on those cases that are
adjudged by the National Green Tribunal.
10
Memorial on behalf of the Petitioners
1Rule 5 Order XLVII of the Supreme Court Rules, 1966 reads as : Where there are two or more
appeals arising out of the same matter, the Court may at any time either on its own motion or on
the application of any party, order that the appeals be consolidated.
11
Memorial on behalf of the Petitioners
STATEMENT OF FACTS
PART-I
1. Aressia, a South Asian Country is a union of 26 states, with land of many small and big rivers
(including trans-boundary rivers) and is having a written Constitution and a federal government
with strong centralizing tendency. The main economic activity in the country is Agriculture but
due to shortage of water it is being significantly affected for the past two decades.
PART-II
2. Aressian Civil Liberties Union (ACLU), a NGO, filed a writ petition before the Honble
Supreme Court of Aressia highlighting the shortage of water. The Honble Supreme Court
disposed the said petition by providing directions to the Government of Aressia to constitute two
committees. On the direction of Apex Court, Central Government constituted two committees
namely High Level Expert Committee and Environment Impact Assessment Committee. The
detailed report given by HLEC suggested and identified that certain rivers can be linked in the
country and EIA committee also identified various environmental and social impacts however it
approved the project cautioning the Government to take precautionary measures.
PART-III
3. In August, 2010 a Central Legislation the Linking of Rivers Act, 2010 was enacted. The
Centre is given all such powers as necessary to ensure availability of water and linking of rivers
vide S. 3 of the Act and also the power to constitute an appropriate authority to fulfill such
functions. In furtherance of the aforesaid sections the Central Government constituted an
Authority for Linking of Rivers(ALR). However this project was criticized by several State
governments as well as NGOs. The Government decided not to implement the project
immediately. In April, 2011 there was a change in government. Due to huge financial cost
involved the Government decided to implement the project in phases. In February, 2012 ALR
published the first phase-list (the list) of rivers which then were exclusively belonging to the
State but after the enforcement of the Act.
12
Memorial on behalf of the Petitioners
STATEMENT OF ISSUES
ISSUE 1: Whether the petition filed by Forum for Environmental Right (FER) is maintainable
before the High Court of Neruda?
ISSUE 2: Whether Section 3 of the Linking of Rivers Act, 2010 is ultra vires to the Constitution
of Aressia?
ISSUE 3: Whether, the exclusion and non-implementation of Linking of River Project for the
State of Vindhya is violative of fundamental rights of people of State of Vindhya and State of
Normanda?
ISSUE 4: Whether the Linking of Rivers Act, 2010 violates the environmental rights of citizens
of Aressia and the provisions of the Forest (Conservation) Act, 1980?
14
Memorial on behalf of the Petitioners
SUMMARY OF ARGUMENTS
ISSUE ONE: THE PETITION FILED BY FORUM FOR ENVIRONMENTAL RIGHT (FER) IS
MAINTAINABLE.
The petition filed by FER is maintainable. Firstly, Aressia is under an obligation to not cause
trans-boundary environmental damage. Secondly, the violation of such obligation would infringe
the legal as well as fundamental right of the people of Borresia. Therefore, the High Court of
Neruda is the appropriate forum to enforce the legal right of the Petitioner.
ISSUE TWO: SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 IS ULTRA VIRES TO THE
CONSTITUTION OF ARESSIA.
Section 3 of the Linking of the Rivers Act, 2010 is ultra vires the Constitution of Aressia as it is
providing with such a power to the Union to legislate on a subject over which the States have an
exclusive legal right. Further, the Union acting in furtherance of such a power as conferred by
the impugned section has wrongfully encroached upon the States powers.
ISSUE THREE: EXCLUSION AND NON-IMPLEMENTATION OF LINKING OF RIVERS PROJECT FOR
THE
The governmental action of exclusion and non-implementation of the Linking of Rivers Act,
2010 for the State of Vindhya is violative of fundamental rights of people of State Of Vindhya
and State Of Normanda as it does not satisfy the elements of Reasonability Test under Article 14,
19 and 21 of the Constitution.
ISSUE FOUR: THE LINKING OF RIVERS ACT, 2010 VIOLATES THE ENVIRONMENTAL RIGHTS
OF CITIZENS OF ARESSIA AND THE PROVISIONS OF THE
The Linking of Rivers Act, 2010 is ultra vires the Constitution of Aressia as it is in violation with
the environmental rights of the citizens of Aressia guaranteed under Article 21 of the
Constitution & Environment (Protection) Act, 1986 and provisions of the Forest (Conservation)
Act, 1980.
15
Memorial on behalf of the Petitioners
ARGUMENTS ADVANCED
ISSUE ONE
WHETHER
FORUM
FOR
ENVIRONMENTAL RIGHT
(1.)The writ petition filed by the Petitioner against the Respondent is maintainable before the
High Court of Neruda as Aressia is under an obligation to not cause trans-boundary
environmental damage [A]. Further, the violation of such obligation would infringe the legal as
well as fundamental right of the Petitioner [B] and therefore, the High Court of Neruda is the
appropriate forum to enforce the legal right of the Petitioner [C].
A. ARESSIA IS BOUND TO FOLLOW INTERNATIONAL OBLIGATIONS
(2.)In order to fulfill spirit of international obligations which India has entered into, when they
are not in conflict with the existing domestic law, the Honble Supreme Court has extensively
made use of international law.2 It is humbly submitted before this Honble Court that certain
International Conventions, to which Aressia is a party, impose an obligation upon Aressia to not
cause trans-boundary environmental damage and also to not violate the human rights (i). Further,
any attempt to link river Bhargavi with any other river in Aressia would lead to violation of such
obligation (ii).
i) Aressia is under International Obligation to not cause Trans-boundary environmental damage
and also to not violate the human rights
(3.)Where the protection of environment, ecology and other second generation or third
generation right is involved, the courts shall not be loathe to refer to the International
Conventions.3 Art. 51 of the Indian Constitution directs the State that it shall endeavour to foster
2 Entertainment Network (I) Ltd. v. Super Cassette Industries, 2008 (9) SCALE 69
3 Id.
16
Memorial on behalf of the Petitioners
4 His Holiness Kesavanada Bharati Sripadavalvaru v. State of Kerala, (1973) 4 SCC 225
5 Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759
6 National Legal Services Authority v. Union of India, (2014) 5 SCC 438; Also see, Gramophone
Company of India
Ltd. v. BirendrabahadurPandey (1984) 2 SCC 534 and Tractor Export v.
Tarapore& Co. (1969) 3 SCC 562, Mirza Ali Akbar Kashani v. United Arab Republic, (1966) 1
SCR 391
7 KAPOOR S.K., INTERNATIONAL LAW & HUMAN RIGHTS , 399 (14th Ed. Central Law Agency,
2002)
8 Oppenheim, International Law, 475 (8thed, Vol. 1, 1955)
17
Memorial on behalf of the Petitioners
9 United States v. Canada (Trail smelter), Vol. 35A. J.I.L. (1941), P. 684
10 United Kingdom v. Albania (Corfu Channel Case), 15 XII 49, I.C.J. Reports 1949, p. 244
11 France v. Spain (Lake Lanoux Arbitration), (1957) 12 R.I.A.A. 281; 24 I.L.R. 101
12 An Introduction to Environmental Rights Dr. Rathin Bandopadhyay 189
13 United Nations General Assembly Resolution No. 3281 [XXVII] (1974)
14 Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715
18
Memorial on behalf of the Petitioners
LAW
ON JURISPRUDENCE,
27 Id., p. 217
20
Memorial on behalf of the Petitioners
34 Rural Litigation and entitlement Kendra, Dehradun v. State of Uttar Pradesh, AIR 1988 SC
2187; Kendra, Dehradun v. State of Uttar Pradesh,AIR 1988 SC 2187
35 Olga Tellis v. Bombay Municipal Corporation,AIR 1986 SC 180
36 M/s. J. Mohapatra& Co. v. Orissa, AIR 1984 SC 1572, 1574 : (1984) 4 SCC 108
37 S.P. Gupta v. Union of India, AIR 1982 SC 149 : 1981 Supp SCC 87
38 Fact Sheet, para 14
39 Art. 226 (2) of The Constitution of India, 1950
40 MP JAIN,INDIAN CONSTITUTIONAL LAW,429 (6th ed., LexisNexis Butterworths Wadhwa
Nagpur, 2010)
22
Memorial on behalf of the Petitioners
41 Id.,
42 Alchemist Ltd. v. State Bank of Sikkim, (2007) 11 SCC 335 : AIR 2007 SC 1812
43 Fact Sheet, para 9
44 Central Bank of India Ltd. v. Ram Narain, AIR 1955 SC 36 at 38
45 Id., 38-39
23
Memorial on behalf of the Petitioners
46Tashi Delek Gaming Solutions Ltd. v. State of Karnataka, (2006) 1 SCC 442
47 Secy, ONGC Ltd. v. V.U. Warrier, (2005) 5 SCC 245 : AIR 2005 SC 3039
48 T.K. Rangarajan v. Govt. of T.N., (2003) 6 SCC 581 : AIR 2003 SC 3032
49 DDA v. Joint Action Committee, (2008) 2 SCC 672 (678)
50 DevDutt v. Union of India, (2008) 8 SCC 725
51 Id.
24
Memorial on behalf of the Petitioners
OF THE
LINKING
OF
IS ULTRA VIRES TO
CONSTITUTION OF ARESSIA?
(18.) The counsel on behalf of the State of Adhali and State of Parmala (Hereinafter referred to
as States) humbly submit to this Honble Court that S. 3 of the Linking of Rivers Act, 2010
(Hereinafter referred to as Act) is ultra vires to the Constitution of Aressia as it is the States
and not the Union who have an exclusive legal right to legislate upon rivers that are within their
territories [A]. Further, the Union has wrongfully encroached upon the States powers [B].
A. STATES HAVE A LEGAL RIGHT TO LEGISLATE UPON EXCLUSIVE LEGAL RIVERS
(19.) The States invoke the extraordinary original jurisdiction of the Supreme Court in the
instant case (i). They humbly submit that the pith and substance of the impugned act is water
(ii). Further, the word water in Entry 17 of State List in Schedule Seven when interpreted
broadly includes exclusive rivers within it (iii) and as such States have a legal right to legislate
upon exclusive rivers.
62 Factsheet, para 6
63 Factsheet, para 1
64 The Elel Hotels and Investment Ltd. v. Union of India, AIR 1990 SC 1664, at 1669 : (1989) 3
SCC 698; State of Rajasthan v. Chawla, AIR 1959 SC 544 : 1959 Supp (1) SCR 904; Hans
Muller v. Superintendent, Presidency Jail, Calcutta, AIR 1955 SC 367 : (1955) 1 SCR 1284;
Navichandra Mafatlal v. Commr. Of Income tax, Bombay, AIR 1955 SC 58 : (1955) 1 SCR
829; See also Welfare Assn. ARP v. Ranjit P. Gohil, (2003) 9 SCC 358 : AIR 2003 SC 1266;
65 P RAMANATHA AIYAR, ADVANCED LAW LEXICON, 4939
27
Memorial on behalf of the Petitioners
regulation and development of inter-state rivers and river-valleys are to be centrally controlled;
the State Legislature has full power to enact all legislation regarding water.73
(30.) On a true construction of Entry 56 of List I it would be clear that the said entry could not
be invoked by the Union to acquire the rights over exclusive rivers of a State. Entry 56 of List I
is limited to the regulation and development of those rivers that are inter-state. It cannot be
interpreted to mean that the Union can create Inter-state Rivers. The use of the word Inter-State
before Rivers makes if further clear that the intention of the founding fathers of the Constitution
was to exclude exclusive rivers from the Union List. Thus, the impugned Act cannot be
legislated by the Union by taking resort to Entry 56 of Union List as the field of Entry 56 is
limited to Inter-State Rivers alone.
(31.) Even on a harmonious construction of both these entries i.e. Entry 56 and Entry 17 it
cannot be said that the impugned Act has a mere incidental effect on the Entry 17. The impugned
Act has a direct effect upon Entry 17 of State List. Further the impugned Act doesnt any where
expressly mention that the Act was made in furtherance of public interest and as such the Union
cannot invoke Entry 56 of List I to legislate upon the subject matter of water.
Union cannot resort to Residuary Powers
72 MP JAIN, INDIAN CONSTITUTIONAL LAW, 551
73 Id.
29
Memorial on behalf of the Petitioners
Jaora Sugar Mills v. State of Madhya Pradesh, AIR 1966 SC 416, 421 : (1966) 1 SCR 523
30
Memorial on behalf of the Petitioners
(35.) The counsel on behalf of Save the Farmers Forum contends that the governmental
action of exclusion and non-implementation of the Linking of Rivers Act, 2010 for the State of
Vindhya is violative of fundamental rights of people of State Of Vindhya and State Of
Normanda. It is contended so for the reason that such governmental action is violative of Article
14 [A] and Article 19, 21 of the Constitution. [B]
A. GOVERNMENTAL ACTION VIOLATES ARTICLE 14 OF THE CONSTITUTION
Scope of Article 14 of the Constitution
(36.) The governmental action of excluding the State of Vindhya 78 falls under the definition of
law as defined under Article 13(3) (a) 79 of the Constitution, as the law in Article 14 80 is not
confined to the law enacted by the legislature but includes any order or notification 81. The
petitioner contends that the exclusion of the State of Vindhya is violative of Article 14 of the
78 Fact Sheet, para 11
79 Art. 13(3)(a) of Constitution of India, 1950
80 Art. 14 of Constitution of India, 1950
81 State of West Bengal v. Anwar Ali Sarkar AIR 1952 SCR 284
31
Memorial on behalf of the Petitioners
82 Id.
83 State of Bombay v. Balsara F. N.AIR 1951 SC 609
84 Mohd.Shujat Ali v. UOI, AIR 1974 SC 1631
85 Classification means segregation of classes which have a systematic relation, usually found
in common properties and characteristics. 2 ACHARYA DR. DURGA DAS BASU, COMMENTARY
ON THE CONSTITUTION OF INDIA, 1396 (8th Ed., LexisNexis Butterworths Wadhwa Nagpur, 2007)
86 Kangshari v. State of W.B., 1960 SC 457(484): (1960) 2 SCR 646; KedarNath v. State of
West.Bengal. 1954 SCR 30 AIR 1953 SC 404; Ram Sarup v. Union of India, AIR 1965 SC
247(252): (1964) SCR 931
87 The expression Intelligible Diffrentia means difference capable of being understood. A factor
that distinguishes or in different state or class from another which is capable of being
understood. 2 RAMANATHA AIYER, ADVANCE LAW MEXICAN, 2391, (3rd Ed., 2005)
88 LaxmiKhandsari v. State of Uttar Pradesh, 1981 SC 873, 891: (1981) 2 SCC 600; Budhan v.
State of Bihar, AIR 1970 SC 1453: (1969) 2 SCC 166.
32
Memorial on behalf of the Petitioners
THE
LINKING
OF
THE
ARESSIA
VIOLATES
THE
FOREST
(45.) The appellant is an NGO working for the protection of environment and wildlife and
thereby approaches this Honble for challenging the legality of Linking of Rivers Act, 2010. The
Act, 2010 is violating the environmental rights of the people of Aressia. [A] It is further
contended by the appellant that provisions of the Linking of Rivers Act, 2010 is also violating
the provisions of Forest (Conservation) Act, 2010. [B]
to
all
forests
irrespective
of
the
nature
of
ownership
or
classification
PRAYER
WHEREFORE, in light of the issues raised, arguments advanced and authorities cited it is most
humbly and respectfully requested that this Honble Court to adjudge and declare on behalf of:
1. FER that The Petition filed by FER is maintainable and shall be redirected to the High
Court of Neruda for adjudication.
2. Two Aressian States that the Section 3 of the Linking of Rivers Act, 2010 is ultra vires
the Constitution.
3. Save the Farmers Forum that to issue a writ of mandamus to the Government of Aressia
for including and implementing the Linking of Rivers Act, 2010 of the State of Vindhya.
4. Centre for Environment Rights and Advocacy that the Linking of Rivers Act, 2010 as
ultra vires the Constitution.
The court may also be pleased to pass any other order, which this Honble Court may deem fit in
light of justice, equity and good conscience. All of which is respectfully submitted on behalf of
The Appellants
Sd/..............................
(Counsel for the Appellants)
44
Memorial on behalf of the Petitioners