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TEAM CODE -1

MEMORIAL ON BEHALF OF THE PETITIONER

Before
THE HONBLE SUPREME COURT OF ARESSIA
AT AHALI CITY

IN THE MATTERS CONCERNING LINKING OF RIVERS

ORIGINAL SUIT NO. ____OF 2014 (UNDER ARTICLE 131 OF THE CONSTITUTION OF ARESSIA)
STATE OF ADHALI& STATE OF PARMALA PETITIONER
v.

UNION OF ARESSIA...RESPONDENT
&
WRIT PETITION (CIVIL) NO. ___OF 2014 (UNDER ARTICLE 32 OF THE CONSTITUTION OF ARESSIA)
SAVE THE FARMERS FORUM..PETITIONER
v.

UNION OF ARESSIA...RESPONDENT
&
SLP(CIVIL) NO. _____OF 2014 (UNDER ARTICLE 136 OF THE CONSTITUTION OF ARESSIA)
FORUM FOR ENVIRONMENTAL RIGHT ....APPELLANT
v.

UNION OF ARESSIA...RESPONDENT
&
SLP(CIVIL) NO. _____OF 2014 (UNDER ARTICLE 136 OF THE CONSTITUTION OF ARESSIA)
CENTRE FOR ENVIRONMENTAL RIGHTS AND ADVOCACY .APPELLANT
v.

UNION OF ARESSIA...RESPONDENT
MEMORANDUM ON BEHALF OF THE PETITIONER

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MEMORIAL ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS
INDEX OF AUTHORITIES III.
STATEMENT OF J URISDICTION VIII.
STATEMENT OF FACTS IX
STATEMENT OF ISSUES ......XI
SUMMARY OF ARGUMENTS...XII

ARGUMENTS ADVANCED
1.

THAT THE PETITION FILED BY FORUM FOR ENVIRONMENTAL RIGHT (FER) IS MAINTAINABLE
BEFORE THE HIGH COURT OF NERUDA.1

1.1. THAT DISREGARD OF INTERNATIONAL OBLIGATIONS PROVIDES SUFFICIENT CAUSE OF

ACTION....1

1.2. THAT THE STATE IS BOUND TO ADHERE TO INTERNATIONAL COVENANTS..3

1.3. THAT THE APPELLANT WAS COMPETENT TO FILE A PETITION UNDER ARTICLE 2264

2. THAT SECTION 3 OF THE LINKING OF RIVERS ACT, 2010 IS ULTRA VIRES TO THE CONSTITUTION
OF ARESSIA.6

2.1. THAT SECTION 3 VIOLATES THE BASIC STRUCTURE OF THE CONSTITUTION OF INDIA...6
2.2. THAT THE ENACTMENT OF SECTION 3 OF INTERLINKING OF RIVERS ACT, 2010 IS A
COLORABLE EXERCISE OF POWER ON PART OF THE UNION OF ARESSIA.8

2.3. THAT

THE

AUTHORITY

FORMED

UNDER

SECTION

3(3)

IS

ARBITRARY

UNCONSTITUTIONAL...9

3. THAT 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 NORMANDA...10

3.1. THAT THE

EXCLUSION OF STATE OF VINDHYA BY ALR SMACKS FOUL OF WEDNESBURYS

PRINCIPLES OF NON-ARBITRARINESS10

3.2. THAT

ACTIONS OF ALR HAD VITIATED THE LEGITIMATE EXPECTATION OF THE PEOPLE OF

STATE OF VINDHYA& STATE OF NORMANDA.12

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MEMORIAL ON BEHALF OF THE PETITIONER

3.3. THAT EXCLUSION OF STATE OF VINDHYA WAS NOT PROPORTIONAL & WAS A COLOURABLE
EXERCISE OF POWER..13

3.4. THAT

THE FUNDAMENTAL RIGHTS OF PEOPLE OF

OBLIGATIONS

UNDERRAMSAR

CONVENTION

ARESSIA

ON

OVERRIDE THE STATES

WATERS

OF

INTERNATIONAL

IMPORTANCE..14

4.

THAT THE

LINKING OF RIVERS ACT, 2010 VIOLATES THE ENVIRONMENTAL RIGHTS OF CITIZENS

OF ARESSIA AND THE PROVISIONS OF THE FOREST (CONSERVATION) ACT, 1980..16

4.1. THAT

THE IMPLEMENTATION OF

LINKING

OF

RIVERS ACT, 2010

VIOLATES THE

ENVIRONMENTAL RIGHTS OF CITIZENS OF ARESSIA ...16

4.2. THAT

THE

LINKING

OF

RIVERS ACT, 2010

VIOLATES THE PROVISIONS OF

FOREST

(CONSERVATION) ACT, 1980.19

PRAYER.XV

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INDEX OF AUTHORITIES
REFERRED IN

CASE LAWS
1. 4.Megh Raj v. Allah Rakhia 74 I.A. 12 ....7
2. Air India Statutory Corpn. v. United Labour Union,(1997) 9 SCC 377 ...10
3. Arizona vs. California, (1931) 283 US 449.3
4. Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349...4
5. Ashoka Smokeless Coal India (P) Ltd. v. Union of India, (2007) 2 SCC 640..13
6. Anwar v. State of J&K (1971) 3 SCC 104..3
7. Aswani Kumar Ghose v. Arbind Bose, AIR 1953 SC 369,1952 SCR31920
8. B. P. Singhal v Union of India and another, (2010) 6 SCC 331.7
9. M/s. Patel Roadways vs. M/s. Prasad Trading Company,
1991(4)SCC270 ......6
10. BangloreMedcial Trust v B.S. Muddappa, AIR 1991 SC 1902.20
11. Bannari Amman Sugars ltd.v. Union of India, (2005) 1 SCC 625......2
12. Biswambhar Singh v. State Of Orissa ,AIR 1954 SC 139: 1954 SCR 842..19
13. Cauvery Water Disputes Tribunal In Re, 1991 Supp (1) SCC 96(II)..4
14. ChanchalGoyal (Dr)v. State of Rajasthan,(2003) 3 SCC 485...13
15. ChandavarkarSitaRatna Rao v. Ashalata S. Guram (1986) 4 SCC 44720
16. Connecticut vs. Massachusetts,(1931) 282 US 6603
17. Council of Civil Service Unions, 1985 AC 374 ,(1984) 3 All ER 935.13
18. Delhi Financial Corporation &Anr. v. Rajiv Anand&Ors., (2004)11 SCC 625;...12
19. E.P. Royappa v. State of T.N.,(1974) 4 SCC 3......................14
20. Navjyoti Coop. Group Housing Society v.Union of India
(1992) 4 SCC 477..13
21. Food Corporation of India v. Kamadhenu Cattle Feed Industries,(1993)1SCC 71...13
22. Gullapali Negeswara Rao v A.P. State R.T.C, 1959 supp (1) SCR 319 .9
23. H.R. Banthia v Union of India, AIR 1970 SC 14539
24. Harakchandv Union of India, AIR 1970 SC 1453...9
25. Humadard Dawakhana v Union of India, AIR 1960 SC 554..9
26. Hung. v. Slovk., 1997 ICJ Rep 92...2

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MEMORIAL ON BEHALF OF THE PETITIONER

27. I.R. Coelho v. State of T.N., (2007) 2 SCC 1....15

28. Francis Coralie Mullin vs. Union Territory, 1981 2 SCR 516......17
29. Indian Council for enviro legal action v Union of India,(1996) 3 SCC 212.....17
30. Ivory Traders & Mfg. Assn. v. Union of India, AIR 1961 97 Del 267.....18
31. Bagla v State of Madhya Pradesh, AIR 1954 SC 465.....9
32. Jaspal Singh v. State of Punjab,(2012) 1 SCC 10 ....15
33. JiwanK.Lohiav.DurgaDuttLohia, (1992) 1 SCC 56..12
34. K. Venkatachalam v A. Swamickan, (1999) 4 SCC 526 ....5
35. K.C.Gajapati Deo v State of Orissa, 1954 SCR 1...9
36. Kansas vs. Colorado (1902) 185 US 143 ...3
37. Karnataka Industrial Areas Development Board v. C. Kenchappa,
(2006) 6 SCC 371 .15
38. Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 : 1973 Supp SCR 1....4
39. Khambalia Municipality v. Gujarat State AIR 1967 SC 10489
40. Kiobel v. Royal Dutch Petroleum, Co. 2012 WL 2164614.5
41. Kishan Prakash Sharma v Union of India, (2001) 5 SCC 212........9
42. Kuldeep Singh v. Govt. of NCT of Delhi (2006) 5 SCC 702,para 25...11
43. Kuldip Nayar v Union of India and Others, (2006) 7 SCC 1..7
44. Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254 ...4
45. Lafarge Umiam Mining Private Limited and another v Union Of India And Others
(2011) 7 SCC 338..17

46. M.C Mehta v. Union of India ,1988 (1) SCC 471 ..4
47. M.C. Mehta v Kamalnath, AIR 2002 SC 1515..17
48. M.C. Mehta v Union of India AIR 1987 SC 1086.18
49. M.C. Mehta v.Union of India (2002) 4 SCC 356..15
50. M.P. Oil Extraction co. v State of MP (1997) 7 SCC 592.12
51. M.P. Special Establishment v.State of MP(2004) 8 SCC 788...11
52. Mahe Beach Trading Co. v Union territory of Pondicherry(1996) 3 SCC 741...9
53. Makhan Singh v State of Punjab AIR 1964 SC 3819
54. Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625...4
55. Monnet Ispat and Energy Limited v. Union of India (2012) 11 SCC 1.12

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56. Mosaraf Hossain Khan v. BhagheerathaEngg. Ltd., (2006) 3 SCC 658 4

57. N.D. Jayal v. Union of India, (2004) 9 SCC 362...15
58. Nature Lovers Movement v. State of Kerala, (2009) 5 SCC 373 .19
59. Nebraska vs. Wyoming (1945) 325 US 589...9
60. Networking of Rivers, In re, (2012) 4 SCC 51,para 48,51 ..7,11,12
61. State of Karnataka v. Vishwabharathi House Building Coop. Society,
(2003) 2 SCC 415
62. Noida Entrepreneurs assn. v. Noida, (2011) 6 SCC 508 .....14
63. North Dakota vs. Minnesota (1923) 263 US 365...3
64. OnkarLal Bajaj v. Union of India, (2003) 2 SCC 673 ..12
65. People's Union for Civil Liberties v.Union of India (1997) 3 SCC 433.3
66. Punjab Communications Ltd. v. Union Of India (1999) 4 SCC 727.13
67. R. v. Secy.of State for Home Department ex parte Ruddock (1987) 2ALL ER 518 13
68. R.S. Joshi v Ajit Mills Ahemdabad (1977) 4 SCC 2279.9
69. R.S. Raghunath v. State of Karnataka, (1992) 1 SCC 335 ...20
70. Ram Deo Chauhan v. Bani Kanta Das, (2010) 14 SCC 209 ..5
71. Ram Pravesh Singh v. State of Bihar(2006) 8 SCC 38112
72. RamlilaMaidan Incident, In re, (2012) 5 SCC ..15
73. RammanaDayaram Shetty v. International Airport Authorityof India,
AIR 1979 SC 1628.19
74. Ranjit Thakur v. Union of India (1987) 4 SCC 611..12
75. Rashid K.s. v Income tax investigations commn. (1954) scr 7394
76. Railway Board v. Chandrima Das, (2000) 2 SCC 465...3
77. Research Foundation for Science (18) v. Union of India, (2005) 13 SCC 186 ..3
78. S.R. Bommai v. Union of India, (1994) 3 SCC 18
79. Sanjan m. wig v Hindustan petroleum corp.ltd (2005) 8 SCC 242 5
80. ShrilekhaVidyarthi v. State of U.P. [(1991) 1 SCC 212,para 36...11
81. Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694.3
82. Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ETIO (2007) 5
SCC 447.........................................13
83. Srinivasa Co-operative Housing Building Society Ltd.V.Madam Gurumutry Sastri.
(1994) 4 SCC 675,..14

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84. State Of Gujarat & Anr v Honble Mr. Justice R.A. Mehta (Retd) & Ors
(2013) 3 SCC 1..7
85. State of Rajasthan v Basant Nahata (2005) 12 SCC 77.....9
86. State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201 ....6
87. Sunil Singh v. Union of India, (2008) 152 DLT 441 ... .5
88. Mahesh Chandra v. U.P. Financial Corpn (1993) 2 SCC 279, 15
89. Supreme Court Advocates-on-Record Assn. v. Union of India,
(1993) 4 SCC 441 .13
90. Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698 .5
91. Sushila Saw mill v State of Orissa (1995) 5 SCC .18
92. T.N Godavaram Thirumulpad v. Union of india AIR 2005 SC 425619
93. T.N. Godavaram Thirumulpad V. Union of India, (2008) 7 SCC 126.19
94. Teri Oat Estates (P) Ltd. v. UT, Chandigarh (2004) 2 SCC 130 ..14
95. Union of India v. Kamath Holiday Resorts (P) Ltd., (1996) 1 SCC 774 ..20
96. Union of India v. Adani Exports Ltd. (2002) 1 SCC 5674
97. Union of India v. G.M. Kokil [1984 Supp SCC 196 : 1984 SCC (L&S) 631...20
98. Vellore Citizens' Welfare Forum v.Union of India (1996) 5 SCC 64...4,5,15,16,18
99. Virendra Gaur v State of Haryana (1995) 2 SCC 577..17
100. Wyoming vs.Colorado (1922) 159 US 4193
101. Tarun Bhagat Singh, Alwar v Union of India (Sariska Case) W.P. No 509 of 1991.......18
102. Essar Oil Ltd. v. Halar Utkarsh Samiti, (2004) 2 SCC 392..18
CONSTITUTIONS, STATUTES, NOTIFICATIONS, POLICIES ET AL
1. Air (Prevention and Control of Pollution) Act, 1981
2. Environment (Protection) Act, 1986
3. Forest (Conservation) Act, 1980
4. Constitution of India,1950
5. Inter-State Water Dispute Act,1956
6. National Green Tribunal Act, 2010
7. National Forest Policy (1988)

8. National Forest Conservation(amendment) rules,2014

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MEMORIAL ON BEHALF OF THE PETITIONER

9. Environment Impact Assessment Notification (2006)

10. MoEF, [Notification no 657 Regd number D.L- 33004/99] vide letter dated on
December 4th, 2010
11. Wetlands(Conservation and Management) Rules,2010
BOOKS REFFERED
1. DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA (14th ed., 2011)
2. H.M. SEERVAI, CONSTITUIONAL LAW OF INDIA(4 TH ED.,2008)
3. JUSTICE BHAGABATI PROSAD BANERJEE, BHASKARPROSAD B ANERJEE &SANKARPROSAD
BANERJEE, WRIT REMEDIES (6TH ED. 2013)
4. JUSTICE T S DOABIA, ENVIRONMENTAL & POLLUTION LAWS IN INDIA,(2ND ED., 2010)
5. M.P. JAIN & S.N. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW, (6TH ED.,2011)
6. SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA (2ND
ED.,2001)

TREATISES
1. Stockholm Declarartion, June., 6, 1972, U.N Doc. A/Conf.48/14/Rev
2. Rio Declaration on Environment and Development,Aug.,12 1992, A/CONF.151/26(Vol1)
3. Convention on Wetlands of International Importance Ramsar, art. 2, 2.2.1971 as amended
by the Protocol of 3.12.1982 and the Amendments of 28.5.1987
ARTICLES
1. Aaron Schwabach, Diverting the Danube: The Gabcikovo-Nagymaros Dispute and
International Freshwater Law, 14 Berkeley J. Int L. 290, 326(1996)
2. J. Austin, Canada-US Practice and Theory Respecting the International Law of
International Rivers: A Study of the History and Influence of the Harmon Doctrine37
Canadian Bar Review, 432-434(1959); (1932) 13 British Yearbook of International Law,
189
3. Shekhar Singh, Linking of Rivers: Submission to Prime Minister, Economic and Political
Weekly, Vol. 38, No. 40 (Oct. 4-10, 2003), pp. 4278-4280

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STATEMENT OF JURISDICTION
STATE OF ADHALI & STATE OF PARMALAv.UNION OF ARESSIA
The Petitioners invoke the original jurisdiction of the Honble Supreme Court of Aressia under
Article 131 of the Constitution of Aressia for adjudicating on the dispute between the Union of
Aressia and State of Adhali and Parmala pertaining to the validity of Linking of Rivers Act,
2010.

SAVE THE FARMERS FORUM v.UNION OF ARESSIA

The Petitioner invokes the Writ Jurisdiction of the Honble Supreme Court of Aressia under
Article 32 of the Constitution of Aressia for the enforcement of the Fundamental Rights of the
people of State of Vindhya and State of Normanda.
FORUM FOR ENVIRONMENTAL RIGHT v. UNION OF ARESSIA
The petitioner invokes the Special Leave Jurisdiction of the Honble Supreme Court of Aressia
under Article 136 of the Constitution of Aressia for grant of leave, assailing the order of Honble
High Court of Neruda dismissing the writ petition filed by the appellant under article 226 of the
Constitution of Aressia on 3 January, 2014.

CENTRE FOR ENVIRONMENTAL RIGHTS AND ADVOCACY v. UNION OF ARESSIA

The petitioner invokes the Special Leave Jurisdiction of the Honble Supreme Court of Aressia
under Article 136 of the Constitution of Aressia for grant of leave, assailing the order of National
Green Tribunal dismissing the petition filed by the appellant under Section 14 (1) of the National
Green tribunal Act,2010 on 4 July,2014

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STATEMENT OF FACTS

RELEVANT FACTS

Aressia, a South Asian country is a union of 26 states and is having a written Constitution and a
federal government with strong centralizing tendency. Being an agrarian economy, Aressia has
suffered due to the failure of agricultural crops in many regions owing to shortage of water.
Consequently, hundreds of farmers became bankrupt all over the country and many of them
committed suicide. ACLU, an NGO filed a petition before the Supreme Court of Aressia
concerning the menace of water scarcity. The Court directed the Government of Aressia to
constitute a High Level Expert Committee and an Environment Impact Assessment(EIA)
committee to conduct a study on the viability of linking of rivers across the country. In
compliance of the directions issued by this Court the Central Government on December 2009,
constituted the afore mentioned committees. The EIA had adequate representations from
different strata of society. In May, 2010, EIA committee while submitting its report to the
Central Government suggested that, certain rivers can be linked together to assuage the situation
and also identified various environmental and social harms that may be caused. However, the
EIA committee approved the project and suggested certain precautionary measures.
THE LINKING OF RIVERS ACT,2010
Section 3 of the act states subject to the provisions of this Act, the Central Government, shall
have the power to take all such measures as it deems necessary or expedient for the purpose of
ensuring availability and accessibility of water and linking of rivers all over the country.
Section 3(3)the constitution of an authority for the exercise of such powers and performance of
such functions which are necessary for the linking of rivers across the country. On the basis of
this provision the Central Government constituted an Authority for Linking of Rivers (ALR)
through a notification in official gazette on September 28, 2010.
STATE OF ADHALI & STATE OF PARMALA V. UNION OF ARESSIA
The Central Government decided to implement the Act in three phases. The rivers identified by
ALR in Phase I belonged to seven states including State of Adhali and Paramala. The rivers were
exclusively located within the territory of the states but post implementation they will become
inter-state. State of Adhali and Parmala challenged the validity of Linking of Rivers Act, 2010.

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The States argued that Section 3 is ultra vires to the Constitution of Aressia and is an
encroachment by the Center on the States power.
SAVE THE FARMERS FORUM V. UNION OF ARESSIA
Out of the 12 rivers identified in the first phase from the State of Vindhya, 8 were to be linked to
Normanda which was facing water scarcity. State of Vindhya has been included in the Ramsar
List of Wetlands of International Importance. According to the EIA committee appointed by the
State this wetland will be damaged by the implementation of project. On request of State of
Vindhya, the Central Government directed ALR to exclude the State of Vindhya from the
Linking of Rivers Project. Under the banner of, Save the Farmers Forum the farmers of both
States approached this Honble Court under Article 32 of the Constitution of Aressia impugning
that the non-implementation of the project will lead to deprivation of their fundamental right.
The government replied that such a decision was taken in lieu of their international obligation .
FORUM FOR ENVIRONMENTAL RIGHT V UNION OF ARESSIA
River Bhargavi which is a trans-boundary river has been identified by ALR in first phase.The
river originates in the State of Neruda and ends in the country of Boressia. In April 2013, the
Minister of Agriculture and Forest of Boressia, requested Union of Aressia to exclude river
Bhargavi from the first phase of Linking of River Project, but it was denied. In November 2013,
FER an international NGO with branch office in Neruda approached the Honble High Court of
Neruda assailing that the Linking of River Bhargavi will lead to destruction of forest area and
wildlife, submergence of wetlands and violation of Right to livelihood of fishermen in Boressia.
The High Court dismissed the appeal in limine. FER has preferred an appeal before this Court.
CENTRE FOR ENVIRONMENTAL RIGHTS AND ADVOCACY V UNION OF ARESSIA
After a news report was aired divulgingthe negative opinions of the members of the EIA
committee appointed by the Central government. On 2nd April, 2014 Centre for Environment
Rights and Advocacy (CERA), an NGO impugned the legality of The Linking of Rivers Act,
2010 on the ground that the implementation of the project would violate the environmental
rights of the people of Aressia and also the provisions of the Forest (Conservation) Act, 1980.
However, on 4thJuly 2014, the NGT dismissed the petition filed by CERA against which it has
preferred an Appeal on 5th August 2014.
The Honble Supreme Court of Aressia for the sake of convenience decided to hear the petitions
together.

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STATEMENT OF ISSUES

1. WHETHER

THE PETITION FILED BY

FORUM

FOR

ENVIRONMENTAL RIGHT (FER)

IS

MAINTAINABLE BEFORE THE HIGH COURT OF NERUDA?

2. WHETHER SECTION 3

OF THE

LINKING

OF

RIVERS ACT, 2010

IS ULTRA VIRES TO THE

CONSTITUTION OF ARESSIA?
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 S TATE OF NORMANDA?

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?

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SUMMARY OF ARGUMENTS
1.

THAT THE PETITION FILED BY

FORUM

FOR

ENVIRONMENTAL RIGHT (FER)

WAS

MAINTAINABLE BEFORE THE HIGH COURT OF NERUDA

It is humbly submitted that the Appellant had locus standi before the High Court of
Neruda. It is germane to mention that Linking of River Bhargavi by the Union of Aressia
will have detrimental effects in the territory of Boressia. The trans-boundary harm arising
from such a pursuit will have ramifications will be catastrophic for the people of Boressia
affecting their right to livelihood and ecological balance. The Union of Aressia is
constitutionally bound to honour its international commitments and causing such transboundary harms violates the very spirit of the Constitution. Further, it is indispensible to
mention that the Petitioner is competent to assert the violation of Rights of people in
Boressia owing to disability. Since, the river is flowing through State of Neruda and the
implementation of the project is within its territory, a cause of action has arisen in the
State of Neruda.

2.

THAT

SECTION 3

OF THE

LINKING

OF

RIVERS ACT, 2010

IS ULTRA VIRES TO THE

CONSTITUTION OF ARESSIA
It is humbly asseverated that Section 3 of the Linking of Rivers Act, 2010 is ultra vires
to the Constitution of Aressia. It is humbly submitted that the impugned provision is a
blatant encroachment on the States domain and thus is against the federal structure of the
Constitution. It is quiet established that in the instant matter the rivers which are going to
be linked are confined to the States but after the implementation of the project they will
become interstate. Enactment of such legislation by Union constitutes a colourable
exercise of power. It is also submitted that Sec.3(3) conferred unbridled powers on
Authority of Linking of Rivers(ALR) and renders it arbitrary. Therefore, Section 3 is
ultra vires to the Constitution of Aressia.

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3.

MEMORIAL ON BEHALF OF THE PETITIONER

THAT, THE EXCLUSION AND NON-IMPLEMENTATION OF

FOR THE

STATE

OF

VINDHYA

LINKING

OF

RIVER PROJECT

IS VIOLATIVE OF FUNDAMENTAL RIGHTS OF PEOPLE OF

STATE OF VINDHYA AND STATE OF NORMANDA

It is humbly asseverated that the exclusion and non-implementation of Linking of Rivers
Project for the State of Vindhya is violative of the Fundamental rights of people of State
of Vindhya and State of Normanda, as arbitrariness is writ large in the actions of ALR.
Publication of the name of the rivers which were going to be the part of first phase of the
Project, had prompted a legitimate expectation about the prospective benefits from the
implementation of the project. There was no overriding reason for denying such a
legitimate expectation. Also the exclusion of entire State of Vindhya by ALR was not
proportional and averse to the objective sought to be achieved.

4.

THAT THE

LINKING OF RIVERS ACT, 2010

OF CITIZENS OF

VIOLATES THE ENVIRONMENTAL RIGHTS

ARESSIA AND THE PROVISIONS OF THE FOREST (CONSERVATION) ACT,

1980
It is humbly submitted that the Linking of Rivers Act, 2010 violates the environmental
rights of citizens of Aressia and the provisions of the Forest (Conservation) Act, 1980.
The implementation of project would lead to submergence of land, destruction of forest
and wildlife which is against the provisions of the Forest (Conservation) Act, 1980.
Further such an act would adversely affect the environment, or threaten life, health,
livelihood, well-being or sustainable development. The ecological imbalance violates
right to life under Article 21 of Constitution of India..

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ARGUMENTS ADVANCED
1. THAT

THE PETITION FILED BY

FORUM

FOR

ENVIRONMENTAL RIGHT (FER)

IS

MAINTAINABLE BEFORE THE HIGH COURT OF NERUDA

It is humbly submitted before this Honble Court that the Petition was maintainable before the
Honble High Court of Neruda. Petitioner is an international NGO in the name and style of
Forum for Environmental Rights (FER) with its head office in Boressia and a branch office in
Boranda, Capital City of Neruda. It is apprehended that Country of Boressia is most vulnerable
to devastation associated with the purported interlinking of river Bhargavi. 1 It is humbly
submitted that the Honble High Court of Neruda erred in dismissing the petition in limine.

1.1 THAT

DISREGARD OF

INTERNATIONAL

OBLIGATIONS PROVIDES SUFFICIENT CAUSE OF

ACTION

1.1.1 It is humbly submitted that the activities carried out by the government of Aressia was in
exercise of their right of territorial sovereignty but in effect it causes a trans-boundary harm
whose repurcussions will be catastrophic for the people of Boressia. The draft of UNO on
Prevention of Trans boundary Harm from Hazardous Activities 2 defines both trans-boundary
harm 3 and harm 4.It is evident that any step taken in furtherance of linking river Bhargavi will
have detrimental impact on the ecosystem of Boressia, depriving people of their livelihood.
International law governs the utilization of common rivers in order to ensure the just and
equitable share of waters for all competing claimants and interests. There exists a lawful right of
co-riparians to the same water. This is Helsinki Rules on the Uses of Waters of International
Rivers 1966 affirm that the right of a riparian state to its international rivers is limited.
1

Factsheet 14
Text adopted by the Commission at its fifty-third session, in 2001, and submitted to the General Assembly as a part
of the Commissions report covering the work of that session. The report, which also contains commentaries on the
draft articles, appears in Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10
(A/56/10).
3
Prevention of Transboundary Harm from Hazardous Activities art. 2(d)- transboundary harm means harm caused
in the territory of or in other places under the jurisdiction or control of a State other than the State of origin, whether
or not the States concerned share a common border
4
harm means harm caused to persons, property or the environment;
2

(HNMCC), 2014

MEMORIAL ON BEHALF OF THE PETITIONER

1.1.2 This act of mutual respect for each others right itself is a limitation on the exercise of
sovereignty over international rivers. 5To this end, the UN Charter embodies the general principle
of good neighborliness i.e. due account being given to the interests and well-being of the rest of
the world in social, economic, and commercial matters (Art. 74).6
1.1.3 Another fundamental principles of international law is that the holder of a right must
exercise it in a manner not injurious to others. 7 In the present matter the inclusion of river
Bhargavi in the linking of river project will cause substantial harm to the eco system of
Boressia. There will be large scale destruction of forest area, wildlife and submergence of
wetlands8. This is in contravention with the aforesaid principle. There is also an obligation on the
state to notify foreign countries about the plans which will have an impact on them and also
discuss the possible solution with them. 9 This principle of notice was not adhered to by the Union
of Aressia.
1.1.4 Further, the Stockholm Declaration on the Human Environment, 1972 10 recognizes that
States have sovereign rights to exploit their own resources pursuant to their own environmental
policies, and the responsibility to ensure that activities within their jurisdiction or control do not
cause damage to the environment of other States or of areas beyond the limits of national
jurisdiction 11. It is luminescent that under the garb of linking the rivers Union of Aressia
disdained all its International Obligations.

Case Concerning the Gabcikovo - Nagymaros Project (Hung. v. Slovk.), 1997 ICJ Rep 92 (order of February 5).
The nuclear fallout case, 1974 ICJ Rep 253. Corfu Channel (UK vs. Alb.), 1949 ICJ Rep 22. Trail Smelter (US vs.
Can.), 3 RIAA 1965; (1941) 35 Am J. Intl L 684.
6
This is precisely the objective of international economic cooperation under Chapter IX (Art. 55) of the UN Charter.
All UN members pledge themselves in Article 56 of the UN Charter to attain this objective through individual and
collective efforts.; Aaron Schwabach, Diverting the Danube: The Gabcikovo-Nagymaros Dispute and International
Freshwater Law, (1996) 14 Berkeley J. Int L. 290, 326.
7
sic utere tuo ut alienum non laedasThis obligation requires a state not to use its territory to the detriment of
another state. The Convention on the Law of the Non-navigational Uses of International Watercourses 1997
(hereafter the Convention on Non-navigational Watercourses) embodies the principle of no significant harm in
Article 7.
8
Factsheet 14
9
Networking of Rivers (2012) 4 SCC 51, In re.
10
Stockholm Declarartion, June., 6, 1972, U.N Doc. A/Conf.48/14/Rev
Principle 21 used extensively by the US Supreme Court in Kansas vs. Colorado (1902) 185 US 143 and (1907)
206 US 46; Wyoming vs. Colorado (1922) 159 US 419; North Dakota vs. Minnesota (1923) 263 US 365;
Connecticut vs. Massachusetts (1931) 282 US 660; New Jersey vs. New York (1931) 283 US 336; Arizona vs.
11

(HNMCC), 2014

MEMORIAL ON BEHALF OF THE PETITIONER

1.1.5 The Honble Supreme Court of India in the case of Research Foundation for Science v.
Union of India

12

has referred to Article 7 of the above draft 13 to include the need for the State to

take necessary legislative, administrative and other actions to implement the duty of prevention
of environmental harm. Environmental concerns have been placed at the same pedestal as human
rights concern, both being traced to Article 21 of the Constitution of Aressia. 14 It is the duty of the
Court to render justice by taking all aspects into consideration and even protect the Fundamental
rights of non-citizens.15
1.1.6 In the case of Railway Board v. Chandrima Das,16 it has been opined that being a part to
the international covenants recognizing human rights, these are available to all persons. It has also
been observed that provisions of a covenant which elucidate and effectuate the Fundamental
Rights guaranteed by the Constitution can be relied upon by Courts as facets of those fundamental
rights and hence enforceable as such 17. The Basel Convention, it cannot be doubted, effectuates
the fundamental rights guaranteed under Article 21.In the instant matter the High Court has
sufficient territorial jurisdiction under Article 226 to entertain the matter as the river originates
within the state and the implementation of the project is to be carried out within the state.
Therefore it is unequivocal that the actions of Aressia smacks foul of these basic human rights
and obligations enshrined under these international covenants.
1.2 THAT THE STATE IS BOUND TO ADHERE TO INTERNATIONAL COVENANTS
1.2.1 It is humbly asseverated that Article 51 of the Constitution directs that the State shall
endeavor to inter alia, foster respect for international law and treaty obligations in the dealings of
organized peoples with one another. It is now a established law that the directive principles
though do not create rights enforceable in a Court of law, it does not follow that they do not create
any obligations on the State and the State would be bound by a constitutional mandate to carry out
California (1931) 283 US 449; Nebraska vs. Wyoming (1945) 325 US 589; see also J. Austin, Canada-US Practice
and Theory Respecting the International Law of International Rivers: A Study of the History and Influence of the
Harmon Doctrine (1959) 37 Canadian Bar Review, 432-434; (1932) 13 British Yearbook of International Law, 189.
12
(2005) 13 SCC 186 at 203
13
Prevention of Transboundary Harm from Hazardous Activities. approved by the working group of the
International Law Commission in 1996, supra at note 3
14
Subhash Kumar v State of Bihar AIR 1991 SC 420 at 424
15
Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 at 723 64
16
(2000) 2 SCC 465 48, Anwar v. State of J&K (1971) 3 SCC 104
17
People's Union for Civil Liberties v.Union of India (1997) 3 SCC 433 : 1997 SCC (Cri) 434

(HNMCC), 2014

MEMORIAL ON BEHALF OF THE PETITIONER

such obligations or duties18.Hence the constitution should be subject to interpretation in the light
of the United Nations Charter and the solemn declaration subscribed to by India. 19 Further the
Doctrine of Incorporation of law states that the rules of Customary International Law which are
not contrary to the municipal law shall be deemed to have been incorporated in the domestic law
and shall be followed by the Courts of law.20 Even while resolving disputes within federal states
the Honble Supreme Court of India has expressly used the above doctrines to achieve justice. 21
Therefore, failure to honour the international obligations has given rise to cause of action.
1.3 THAT THE APPELLANT WAS COMPETENT TO

FILE A PETITION UNDER ARTICLE 226

1.3.1 It is humbly submitted before this Honble Court that sufficient territorial jurisdiction and
the necessary cause of action existed for the plaintiff to file such a petition. Article 226 confers all
the high Courts very wide powers in the matter of issuing writs which they never possessed
before especially lis involving public interest 22.In the instant matter as already stated the cause of
action arises within the territorial bounds of the State and therefore the High Court has sufficient
jurisdiction under Article 226 to entertain this petition and issue the appropriate writ to the
authority for redressing the grievance of the appellant. 23
1.3.2 It is pertinent to mention that the order of the writ petition if it had been issued would have
stayed within the territory of the state as the project envisaged working on the river which is in
Nerudas territory and this constitutes an integral fact for establishment of cause 24. In fact In a few
instances, Courts have used international environmental law as a source of binding norms that
establish a cause of action. Courts in India and other countries appear to have relied on principles
of international environmental law as a cause of action. 25

18

Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 at 707 110.
Sikri, C.J. in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 at 333 151
20
Vellore Citzens Welfare Forum V.Union of India &Ors. (1996) 5 SCC 547 13, 14, 15
21
Cauvery water dispute tribunal In re 1991 Supp (1) SCC 96(II),M.C Mehta v. Union of India ,1988 (1) SCC 471
22
The rule of Locus standi in PIL has been relaxed. Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349
23
Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd., (2006) 3 SCC 658 at page 669 26; Rashid K.s. v Income tax
investigations commn. (1954) SCR 739;Union of India v. Adani Exports Ltd. (2002) 1 SCC 567
24
Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254 at 261 16.
25
The U.S. courts entertain suits between foreigners arising out of foreign conduct or transactions, and it certainly
is not a violation of international law.Kiobel v. Royal Dutch Petroleum, Co. 2012 WL 216 4614
19

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MEMORIAL ON BEHALF OF THE PETITIONER

1.3.3 In Vellore Citzens Welfare Forum v. Union of India & Ors. 26 The Apex Court recognizing
the Principles of Sustainable Development & Principle of Polluter Pays as part of Law of Land
and specifically the Environment Law of the Country exercised jurisdiction. The modern theory
of Conflict of Laws recognizes and, in any event, prefers the jurisdiction of the State which has
the most intimate contact with the issues arising in the case 27 and even if a small portion of the
cause of action gives the Court jurisdiction over the matter 28 which makes Neruda the most viable
place to sue. In the event, a complainant feels that he will have a better and effective remedy in
any other forum he indisputably may file a suit in an appropriate civil Court or may take recourse
to some other remedies as provided for in other statutes. 29
1.3.4 In addition to that Article 226 is couched in widest possible terms unless there is a clear
bar to its jurisdiction. Powers under this article can be exercised when there is any act which is
against ay provisions of law or violative of the constitutional provisions and when recourse
cannot be had to the provisions of the act for the appropriate relief. 30 In the instant matter the
Linking of rivers Act, 2010 neither any other act provides any remedy. Human rights are general
in nature31 and Access to justice by public law remedy would not be denied when a lis involves
public law character and when the forum chosen by parties would not be in position to grant
appropriate relief 32.In this case the high Court keeping in view the public law remedy rule had
sufficient power to grant appropriate relief to the people of Boressia who because of their
disability could not approach this Court. Therefore the International Ngo which is espousing the
rights of the said people had locus standi before the Court33. Hence the petition was maintainable
before the High Court of Neruda.

26

(1996) 5 SCC 547 13, 14, 15

Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698 at 702 10.
28
Sunil Singh v. Union of India, (2008) 152 DLT 441 at 443 7
29
New India Assurance Company Limited and others v Bhagwandas Vyapar Udyog Limited and others 53; State
of Karnataka v. Vishwabharathi House Building Coop. Society, (2003) 2 SCC 412
30
K. Venkatachalam v A Swamickan (1999) 4 SCC 526 27
31
Ram Deo Chauhan v. Bani Kanta Das, (2010) 14 SCC 209 at 223 48.
32
Sanjan . M Wig v Hindustan petroleum corp.ltd (2005) 8 SCC 242 13
33
Subordinate office carrying day-to-day business can sue- M/s. Patel Roadways vs. M/s. Prasad Trading Company,
1991 (4) SCC 270
27

(HNMCC), 2014
2. THAT SECTION 3

MEMORIAL ON BEHALF OF THE PETITIONER

OF THE

LINKING

RIVERS ACT, 2010

OF

IS ULTRA VIRES TO THE

CONSTITUTION OF ARESSIA
It is humbly submitted before the Honble Supreme Court of Aressia that the Section 3 of the
Llinking of Rivers Act,2010 is ultra vires to the Constitution of Aressia. It is humbly submitted
that the attempt of the Union to enact such a provision is a blatant encroachment on the States
domain and thus is against the federal structure of the Constitution. The Centre draws its
legislative power from the List I of the Seventh schedule of the Constitution and section 3 is dehors the legislative competency of the Union

2.1 THAT SECTION 3 VIOLATES THE BASIC STRUCTURE OF THE CONSTITUTION OF INDIA
2.1.1 It is submitted that the Union Powers Committee, in its report34 declared that the soundest
frame-work for our Constitution is a Federation, with a strong Centre. At the same time, they
ruled out the idea of framing a Constitution on the basis of a Unitary State as it would be a
retrograde step, both politically and administratively 35.
2.1.2 It is pertinent to mention that though the centre receives the lions share of powers it is
sometimes necessary to interpret the Constitution in a manner so as to protect the interest of the
weaker, thus any conscious whittling down of the powers of the State can be guarded against by
the Courts.36In the present matter the centre draws it power to legislate from article 245(1) read
with entry 56 List I. Using this power the Union has legislated to settle inter-water disputes
amicably37. In the present matter centre has no power to legislate over any river as they expressly
belong to the state. At this juncture it is pertinent to refer Lords Wrights opinion about land
which holds good for water exclusively located within the territory of a State. Therefore, things
connected with land and water, such as agriculture and irrigation are essentially "local", and are
allocated to the States. 38 A similar view has been taken by the Sarkaria Commission while
discussing the matter of water dispute in Chapter XVII where they have definitively inferred that
34

Report by Union Powers Committee on July 5, 1947 to the President of the Constituent Assembly
2.1.01 Sarkaria Commission Report. Chapter 2
36
State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201 at 289 50.
37
Inter-State Water Dispute Act,1956
38
4 Megh Raj v. Allah Rakhia 74 I.A. 12 (per Lord Wright); H.M. S EERVAI, CONSTITUIONAL LAW OF INDIA(4TH
ED.,2008) 3244 appendix 1
35

(HNMCC), 2014

MEMORIAL ON BEHALF OF THE PETITIONER

'land', are assigned to the States. They have exclusive powers in respect of waters which are not
part of Inter-State rivers and are located within the territory of a State 39 and similarly they have
stated that in entry 17 the expression water has not been prefixed by the term Inter-State thus
limiting the states jurisdiction in such rivers 40.
2.1.3 A bare perusal of list I and list II shows that the State has competence to legislate in all
aspects of water including the water flowing through Inter-State Rivers but such legislation must
not have extra territorial effect. Whereas, the parliament has been given the authority to deal with
inter-state river in public interest 41.In addition to that entry 14 of list 2 also gives the power to the
State to legislate for regulation and development of water bodies in furtherance of agriculture
within the state 42.It has been expressly held by the Supreme Court that Entry 97 can be invoked
only in matters involving inter-state river which has not been enumerated in any of the lists. The
Supreme Court has enunciated that the state can deal with the water bodies within it territory 43.
2.1.4 At this juncture, it is lucid from the interpretations that the Legislature never intended to
provide the Centre any power over state owned rivers. Thus, keeping in mind the express
intention of the Legislature it cannot be legislated upon by resorting to Entry 97 List I of the
Constitution. 44Hence States consent to such a project is an important aspect which has been
recognized by the Supreme Court of India In Re: Networking of Rivers.45This view is further
supported by the fact showing how centre has acted while enacting legislation in prior matters.
While enacting the Water Pollution Act the object of the act clearly specifies that the act would
apply to the States that expressly consent to it 46. The Honble Supreme Court of India has held
the federal structure of the constitution to be a basic structure

47

and Section 3 stands in gross

violation of this dictum.

17.4.02 reliance on Sarkaria Commission Report has been placed in State Of Gujarat & Anr v Honble Mr.
Justice R.A. Mehta (Retd) & Ors (2013) 3 SCC 1; B. P. Singhal v Union of India and another (2010) 6 SCC 331;
Kuldip Nayar v Union of India and Others, (2006) 7 SCC 1
40
Id., 17.2.02
41
Cauvery Water Disputes Tribunal, In re., 1991 Supp (1) SCC 96(II) , 52.
42
Id,. 53
43
Id,. 64
44
Legislative power of the union and states, H.M. Seervai, Constituional Law of India(4th ed.,2008) 2843
45
(2012) 4 SCC 51 the suggestions of the standing committee appointed in this case also eluciated the importance of
the consent of the state government which was further relied upon by the Attorney General of India.
46
Article 254 of Constitution of India
47
S.R. Bommai v. Union of India, (1994) 3 SCC 1 at 118, 106
39

(HNMCC), 2014
2.2 THAT

THE ENACTMENT OF SECTION

MEMORIAL ON BEHALF OF THE PETITIONER

OF INTERLINKING OF RIVERS ACT,

2010

IS A

COLORABLE EXERCISE OF POWER ON PART OF THE UNION OF ARESSIA

2.2.1 It is humbly submitted that the Constitution distributes legislative powers between the
State Legislatures and Parliament, and each has to act within its sphere and enactment of
Section 3 of Linking of Rivers act,2010 is a colorable exercise of jurisdiction on part of the
union of Aressia . In respect of a particular legislation, the question may arise whether the
legislature has transgressed the limits imposed on it by the Constitution. Such transgression may
be patent, manifest or direct, or may be disguised, covert or indirect. It is to the latter class of
cases that the expression 'colourable legislation' is applied. The underlying idea is that
although, apparently, a legislature in passing a statute purports to act within the limits of its
powers, yet, in substance and reality, it has transgressed these limits on its powers by taking
resort to a mere pretence or disguise. If that is so, the legislation in question is invalid. In the
instant matter it has already been established that no express control has been provided to the
Centre to legislate in matters concerning to the rivers within the territory of the state. Thus it is
evident that the intention of the Union is to gain control of such rivers which will become interstate ones they have been linked. Apparently one of the objectives of the project is to make
these water bodies accessible for industrial use thereby materializing the ulterior motive of the
government.. This will seriously undermine the States endeavor to take precaution against any
such activities which might cause irreparable harm to the river. Thus a political agenda is
clearly reflected here which is detrimental to the interest of the state and also in contravention of
the objective of Supreme Courts order. 48
2.2.2 The essence of the matter is that a legislature having restrictive power cannot seek to do
something, indirectly which it cannot accomplish directly within the scope of its power. It is
also characterized as a fraud on the Constitution because no legislature can violate the
Constitution by employing an indirect method. 49 Hence such a colorable exercise of power
conferred in section 3 of the act should be held invalid.

48

Factsheet 4
K.C.Gajapati Deo v State of Orissa, 1954 SCR 1 see also Gullapali Negeswara Rao v A.P. State R.T.C, 1959 supp
(1) SCR 319, R.S. Joshi v Ajit Mills Ahemdabad (1977) 4 SCC 2279
49

(HNMCC), 2014

MEMORIAL ON BEHALF OF THE PETITIONER

2.3 THAT THE AUTHORITY FORMED UNDER SECTION 3(3) IS ARBITRARY UNCONSTITUTIONAL
2.3.1 It is humbly submitted that the authority formed under Section 3(3) is arbitrary as it has
unbridled powers for performance of such functions which are necessary for the implementation
of the project. There are no defined set of powers and functions to limit the authoritys exercise.
The Legislature cannot delegate unrestrained, uncanalised and unqualified legislative powers on
an administrative body. 50 In case the Legislature fails to do so, the law made by it delegating,
legislative power would be invalid. 51In the instant matter unlimited powers have been vested in
the authority which makes it arbitrary, and militates against the conscience of constitution.
2.3.2 A completely unlimited blanket power as provided to ALR in the instant matter, where
there is neither any guidance to delegate, nor any procedural safeguards against improper
exercise of powers, tantamount to excessive delegation. 52 The present matter is overshadowed by
excessive delegated legislation because the legislature has not laid down the policy in clear and
unambiguous terms.53 It is couched in vague and extremely wide terms. 54
2.3.3 In the case of H.R. Banthia v Union of India55, the apex Court declared the provision
invalid because it was very wide and suffered from the vice of excessive delegation. It is
pertinent to mention that there is a total surrender of its legislative function to another body by
the Legislature which is not permissible56. The provision should be such that it should give a
clear and sufficient guidance to the delegate its power under the section. 57 In the present case,
there is no such guidance given to the authority instead it has been vested with unlimited
authority to exercise its power and for performance of its functions.

50

Humadard Dawakhana v Union of India, AIR 1960 SC 554

State of Rajasthan v Basant Nahata (2005) 12 SCC 77 19
52
Kishan Prakash Sharma v Union of India,(2001) 5 SCC 212 18
53
Makhan Singh v. State of Punjab AIR 1979 SC 381
54
Khambalia Municipality v. Gujarat State AIR 1967 SC 1048; Harakchand v Union of India AIR 1970 SC
1453
55
AIR 1970 SC 1453, 17
56
Mahe Beach Trading Co. v Union territory of Pondicherry (1996) 3 SCC 741, 13;Makhan Singh v State of
Punjab, AIR 1964 SC 381
57
Bagla v State of Madhya Pradesh, AIR 1954 SC 465
51

(HNMCC), 2014

MEMORIAL ON BEHALF OF THE PETITIONER

3. THAT 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 NORMANDA.

It is humbly asseverated that the exclusion and non-implementation of Linking of Rivers

Project for the State of Vindhya is violative of the Fundamental rights of people of State of
Vindhya and State of Normanda, as arbitrariness is writ large in the actions of ALR. Publication
of the name of the rivers which were going to be the part of first phase of theProject, had
prompted a legitimate expectation about the prospective benefits from the implementation of
the project. Also the exclusion of entire State of Vindhya by ALR was not proportional and
averse to the objective sought to be achieved.

3.1

THAT THE EXCLUSION OF STATE OF VINDHYA BY ALR SMACKS FOUL OF WEDNESBURYS

PRINCIPLES OF NON-ARBITRARINESS

3.1.1 It is submitted that the exclusion of State of Vindhya by ALR was done in an arbitrary
manner and it smacks foul of the principles of Natural Justice. Adverting to the facts of the case
it is discernible that committee appointed for conducting the environment impact assessment
had a given a detailed report and approved the project recognizing that some potential harms to
the environment exists, however they can be circumvented by taking precautions. 58 State of
Vindhya has the largest wetlands and it has been included in the Ramsar Convention. The EIA
report prepared by the Committee appointed by State of Vindhya identified that the wet land will
be damaged due to the proposed project. On request of State of Vindhya, the Central
Government directed the ALR to exclude the State of Vindhya from the project. 59
3.1.2 ALR being an instrumentality of the State 60, it is imperative that all its actions subscribe
to rational and relevant principles. It must not be guided by irrational or irrelevant considerations
and basic law requirements of Article 14 should be satisfied. 61Ostensibly, actions of ALR and
Central Government pertaining to exclusion of State of Vindhya is arbitrary , unreasonable and
not informed by reason as it failed to acknowledge the EIA report of the committee constituted
58

Factsheet 5
Factsheet 11
60
Article 12 of Constitution of Aressia defines State and its instrumentalities
61
Air India Statutory Corpn. v. United Labour Union, (1997) 9 SCC 377, 27
59

10

(HNMCC), 2014

MEMORIAL ON BEHALF OF THE PETITIONER

by the Central government, which had approved the project and recommended certain safeguards
to avoid the consequential harm. 62In State action, public interest has to be the prime guiding
consideration.63At this juncture, it is pertinent to mention that the said project inhere a significant
public interest and promised benefits for both the States. In the first phase 12 rivers were
identified from the State of Vindhya out of which 8 rivers were going to be linked with rivers in
State of Normanda which was facing scarcity of water .Therefore, it was crucial for realization of
fundamental rights of people. In addition to this even State of Vindhya accrued a substantial
benefit by the proposed linking. Although, State of Vindhya was resourceful in terms of
availability of water, associated benefits for it were in the form of storage facilities, flood
control, navigation, irrigation etc. 64So it is quiet lucid that the implementation of the linking of
rivers was intrinsically connected with the enforcement and realisation of Fundamental Rights
enshrined under the Constitution of Aressia.
3.1.3 The discretion conferred upon ALR cannot be exercised whimsically or capriciously. 65
Similarly, if power is exercised on non-application of mind to relevant factors, the exercise of
power will be regarded as manifestly erroneous or the refusal to take into consideration a
relevant fact, or acting on the basis of irrelevant and extraneous factors not relevant to the
purpose of arriving at the conclusion would vitiate an administrative order. 66The actions of ALR
are required to be non-arbitrary and justified on the touchstone of Article 14 67, but apparently the
exclusion of the entire State on the pretext of preservation of the wetland does not align the
actions of ALR with spirit of Article 14 and renders it arbitrary.
3.1.4 In the instant matter, the veracity of EIA report of the committee is cynical because it
creates a reasonable apprehension of bias in favour of respective State and also militates against
a principle of natural justice Nemo in propria causa judex, essedebet. The report of EIA
committee highlighting a substantial damage to the wetland in state of Vindhya suffers from
vices of subject matter bias as it was appointed by State Government. 68 As regards bias, the test
to be applied is not whether in fact bias has affected the judgment but whether a litigant could
62

ShrilekhaVidyarthi v. State of U.P. (1991) 1 SCC 212, 36

Id,.
64
Networking of Rivers, In re., (2012) 4 SCC 51, 48,51
65
Kuldeep Singh v. Govt. of NCT of Delhi (2006) 5 SCC 702, 25
66
M.P.Special Establishment v. State of MP(2004) 8 SCC 788 28,29
67
Constitution of Aressia, art. 14
68
Delhi Financial Corporation &Anr. v. Rajiv Anand & Ors.(2004)11 SCC 625;para 9
63

11

(HNMCC), 2014

MEMORIAL ON BEHALF OF THE PETITIONER

reasonably apprehend that a bias attributable might have operated against him in the final
decision.69 Hence, proper approach would be to look into the mind of the person before it. 70
3.1.5 Another crucial aspect which requires considerations is that a under the Ramsar
Convention a State can delete or alter the boundaries of wetlands because of national interest. 71
The national interest associated with the Linking of Rivers is incontrovertible but ALR seems
to have disdained the paramount national interest. Therefore, such an arbitrary exercise of power
and non-application of mind by ALR deserves to be quashed. 72

3.2

THAT ACTIONS OF ALR HAD VITIATED THE LEGITIMATE EXPECTATION OF THE PEOPLE OF
STATE OF VINDHYA & STATE OF NORMANDA

3.2.1 The Petitioners humbly submits that in February 2012, ALR had published the list of
rivers which were going to be a part of the first phase of the project. It is pertinent to mention
that 12 rivers were identified from the State of Vindhya out of which 8 rivers were going to be
linked with rivers in State of Normanda which was facing scarcity of water. 73
3.2.2 The aforesaid publication by ALR constituted a sufficient representation to give rise to a
legitimate expectation of conferment of a substantial benefit from the project viz. increasing
area under irrigation, water storage, inland waterways ,providing water to drought prone states,
power generation etc.74This doctrine confers an enforceable right and it is based on the principles
of reasonableness and fairness. 75Economy of Aressia suffered due to failure of agricultural crops
owing to scarcity of water, therefore, expectations were legitimate and justifiable. 76Thus people
of both the States had legitimate expectation substantive as well as procedural. 77Doctrine of
Legitimate expectation owes its genesis to principles of Natural Justice. 78Principle of
69

Jiwan K. Lohia v. Durga Dutt Lohia (1992) 1 SCC 56

Ranjit Thakur v. Union of India (1987) 4 SCC 611
71
Ramsar Convention on Wetlands of International Importance, art. 2(5), 2.2.1971 as amended by the Protocol of
3.12.1982 and the Amendments of 28.5.1987
72
OnkarLal Bajaj v. Union of India, (2003) 2 SCC 673 , 27
73
Factsheet 12
74
Ram Pravesh Singh v. State of Bihar(2006) 8 SCC 381,Bannari Amman Sugars ltd.V Union of India (2005) 1
SCC 625;Networking of Rivers, In re, (2012) 4 SCC 51, 48,51
75
Monnet Ispat and Energy Limited v. Union of India(2012) 11 SCC 1, 188.1; M.P. Oil Extraction co. v State of
MP (1997) 7 SCC 592
76
Factsheet 1
77
Punjab Communications Ltd. v. Union Of India (1999) 4 SCC 727, 26
78
Ashoka Smokeless Coal India (P) Ltd. v. Union of India, (2007) 2 SCC 640, 183
70

12

(HNMCC), 2014

MEMORIAL ON BEHALF OF THE PETITIONER

Legitimate Expectation is at the root of the rule of law and requires regularity, predictability and
certainty in Governments dealing with the Public. 79
3.2.3 In Food Corporation of India v. Kamadhenu Cattle Feed Industries 80 it has been opined
The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself
be a distinct enforceable right, but failure to consider and give due weight to it may render the
decision arbitrary, and this is how the requirement of due consideration of a legitimate
expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule
of law. It imposes a duty on an authority to act fairly and is not restricted situations where
beneficiary is to be consulted or be given an opportunity to make representation. 81
3.2.4 A legitimate expectation could be defeated by an authority only by showing an
overriding public interest warranting a change in policy. 82In the instant case, it is lucid that there
existed no overarching public interest that warranted the denial of such an expectation which as a
matter of fact was instrumental for realization of Fundamental Rights of people in both the
States. Therefore it was incumbent upon ALR to act fairly by taking into consideration all
relevant factors, relating to such legitimate expectation. 83 Due consideration of every legitimate
expectation in the decision making process is a requirement of the rule of non-arbitrariness.84
3.2.5 It is contended that the Court will in a proper case decide whether to frustrate the
expectation is so unfair that to take a new and different course will amount to an abuse of power.
In such circumstances Court will have the task of weighing the requirements of fairness against
any overriding interest relied upon for the change of policy. 85
3.3

THAT EXCLUSION OF STATE OF VINDHYA WAS NOT PROPORTIONAL

& WAS A COLOURABLE

EXERCISE OF POWER

3.3.1 It is humbly submitted that exclusion of State of Vindhya from the Linking of Rivers
was not proportional and it was colourable exercise of power. Proportionality requires the Court
to judge whether the action taken was really needed as well as whether it was within the range of
79

De Smith, Adminisrative law ,5thEdition,para 8.038; Chanchal Goyal (Dr) v. State of Rajasthan,(2003) 3 SCC
485,12
80
(1993)1SCC 71, 8
81
R. v. Secy.of State for Home Department ex parte Ruddock (1987) 2 ALL ER 518
82
Navjyoti Coop. Group Housing Society v.Union of India (1992) 4 SCC 477, 16
83
Id.,31 Reference was made to Halsbury's Laws of England [p. 51, Vol. 1(1), 4th Edn. reissue] and to the case
in Council of Civil Service Unions 1985 AC 374: (1984) 3 All ER 935
84
Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 at 703
85
Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ETIO (2007) 5 SCC 447, 134

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MEMORIAL ON BEHALF OF THE PETITIONER

courses of action that could be reasonably followed.86 In Teri Oat Estates (P) Ltd. v. UT,
Chandigarh87, it was opined that the Court will see whether the legislature and the administrative
authority
maintain a proper balance between the adverse effects which the legislation or the
administrative order may have on the rights, liberties or interests of persons keeping in mind the
purpose which they were intended to serve.
Proportionality is an important facet of Wednesburys non-arbitrariness under Article 14. 88On
application of the aforementioned judgment to the facts of the instant case it is ostensible that
exclusion of State of Vindhya was not proportional, as they had excluded the entire State from
the project which resulted in deprivation of Fundamental Rights of people in both States in an
arbitrary manner.
3.3.2

Petitioners also submit that if the exercise of powers does not serve the purpose

envisaged under the statute, it amounts to colourable exercise of power. 89 An authority is under a
legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for
which power stood conferred. There are inherent limitations to the exercise of such powers.In
welfare legislations this responsibility is graver and the approach of the authority has to be
objective.90It must be exercised bona fide for the purpose envisaged and for none other. In the
instant case arbitrariness is discernible from the actions. Therefore, the exclusion ofState of
Vindhya in a capricious manner by ALR obliterates the purpose of Linking of Rivers
Act,2012. 91

3.4 THAT

THE FUNDAMENTAL RIGHTS OF PEOPLE OF

OBLIGATIONS

UNDER

RAMSAR

CONVENTION

ARESSIA

ON

OVERRIDE THE STATES

WATERS

OF

INTERNATIONAL

IMPORTANCE.

3.4.1 The Petitioner humbly submits that Fundamental Rights of the people are supreme and it
overrides any other obligation to be fulfilled by the State. In the instant matter implementation of

86

WADE H.W.R & F ORSYTH C.F. , ADMINISTRATIVE LAW , (10th ed.,2009) 312
(2004) 2 SCC 130 , 46
88
E.P. Royappa v. State of T.N. (1974) 4 SCC 3
89
Srinivasa Co-operative Housing Building Society Ltd.v. .Madam Gurumutry Sastry (1994) 4 SCC 675, 13
90
Mahesh Chandra v. U.P. Financial Corpn (1993) 2 SCC 279, 15
91
Noida Entrepreneurs Assn. v. Noida, (2011) 6 SCC 508 , 41
87

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MEMORIAL ON BEHALF OF THE PETITIONER

Linking of Rivers is indispensible for realization of Fundamental Rights .Therefore,the said

project is not in contravention of the international obligation
3.4.2 It is an established fact that the Fundamental Rights enshrined in PART III of the
Constitution of Aressia is an embodiment of human rights and has been a defining part facet of
the socialist democracy envisaged by our Constitution. Article 21 of the Constitution of
Aressiahas been characterized as supreme, basicand placed on the highest pedestal. 92It casts
both a negative as well as positive obligations on the State.Positive obligation requires that State
has an overriding obligation to protect the right to life and negative obligation entails an overall
prohibition on arbitrary deprivation of life. 93
3.4.3 It is evident that the primary duty of democratic state is the protection of fundamental
rights. 94 It is lucid from the facts that Aressia is an agrarian economy and the water shortage in
Aressia has deprived people of their livelihood, forcing many farmers to commit suicide.
3.4.4 The Ramsar Convention,under the garb of which the Union excluded the State of
Vindhya, recognizes the right of a contracting party tocede away, owing to its national interest. 95
Even the Wetlands (conservation and management) rule 2010 enacted by the Ministry of
Environment and forest affairs provides for conversion of a wetland to a non -wetland when it is
expedient in public interest. The legitimacy of the project is further reinforced by the concept of
Sustianable Development as interpreted by Supreme Court of India in myriad of
decisions.96Thus, the Central government has all the necessary powers to implement the linking
of river project in order to protect the fundamental rights of people State of Vindhya and State of
Normanda.

92

Ramlila Maidan Incident, In re, (2012) 5 SCC 1 at 121 317

Jaspal Singh v. State of Punjab(2012) 1 SCC 10 , 26
94
I.R. Coelho v. State of T.N., (2007) 2 SCC 1 43,44,47
95
Article 2(5) of Ramsar Convention on Wetlands of International Importance
96
Karnataka Industrial Areas Development Board v. C. Kenchappa, (2006) 6 SCC 371 at 374; M.C.Mehta v.Union
of India (2002) 4 SCC 356;Vellore Citizens' Welfare Forum v.Union of India (1996) 5 SCC 647
N.D. Jayal v. Union of India, (2004) 9 SCC 362 , 24
93

15

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4.

THAT THE

LINKING

MEMORIAL ON BEHALF OF THE PETITIONER

OF

RIVERS ACT, 2010

VIOLATES THE ENVIRONMENTAL RIGHTS OF

CITIZENS OF ARESSIA AND THE PROVISIONS OF THE FOREST (CONSERVATION) ACT, 1980

It is humbly submitted that the Linking of Rivers Act, 2010 violates the environmental rights of
citizens of Aressia and the provisions of the Forest (Conservation) Act, 1980. The
implementation of project would lead to submergence of land, destruction of forest and wildlife
which is against the provisions of the Forest (Conservation) Act, 1980. Further such an act
would adversely affect the environment, or threaten life, health, livelihood, well-being or
sustainable development. Such an ecological imbalance violates right to life under Article 21and
other environmental rights of Constitution of India.

4.1 THAT

THE IMPLEMENTATION OF

LINKING

OF

RIVERS ACT, 2010

VIOLATES THE

ENVIRONMENTAL RIGHTS OF CITIZENS OF ARESSIA .

4.1.1 It is humbly submitted that implementation of the project would result in submergence of
land, destruction of forest and wildlife of, ecological imbalance, intrusion of saline water in
fertile coastal area, decrease in fisheries etc. 97 Experts opinion on the consequence of this
project concludes that there is a considerable doubt regarding the efficacy of large projects as a
means of achieving the objective of flood control. Even if the river-linking proposals are
implemented, the contribution that this will make to the mitigation of the flood problem may not
be substantial. Apart from its inevitable social and human impacts, the project is potentially
fraught with serious environmental and ecological consequence. 98In the planning and
implementation of social and economic development activities, due account shall be taken of the
fact that the conservation of nature is an integral part of those activities. 99
4.1.2 In Vellore Citizens Welfare Forum v. Union of India,100 the Supreme Court of India
traced the source of the Constitutional and statutory provisions that protect the environment, to
the inalienable common law right of every person to a clean environment. The Court has
97

Factsheet 7
Shekhar Singh, Linking of Rivers: Submission to Prime Minister, Economic and Political Weekly, Vol. 38, No. 40
(Oct. 4-10, 2003), pp. 4278-4280
99
Provsion 4 under Functions, Charter of Nature, A/Res/37/37, 48th Plenary meeting, 28 October 1982 available at
http://www.un.org/documents//ga/res/37/a37r007.htm
100
AIR 1996 SC 2715
98

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MEMORIAL ON BEHALF OF THE PETITIONER

identified that National Forest Policy, 1988 must govern the grant of permissions under Section 2
of the Forest (Conservation) Act, 1980 as the same provides the road map to ecological
protection and improvement under the Environment (Protection) Act, 1986. The guidelines
mentioned in the National Forest Policy, 1988 should be read as part of the provisions of the
Environment (Protection) Act, 1986 read together with the Forest (Conservation) Act, 1980.101 It
is reasonable to presume that the implementation of the project will have serious repercussion on
the environment.
4.1.3 Emphasising on the matter of environmental rights the Supreme Court of India has
opined that environmental, ecological, air, water pollution etc., should be regarded as a gross
violation of right to life assured by Article 21 of Constitution. 102The disturbance of ecology
affects the quality of life, resulting in deprivation of the sacrosanct Right to Life. 103The Court
further opined that the Right to Life includes the right to live with human dignity and all that
goes along with it, namely the bare necessaries of life. 104
4.1.4 The phraseology of Article 48-A,105 enunciates that it is the States duty to maintain
environmental balance and stability. The State is the trustee of all natural resources and is
obligated to protect resources which are by nature meant for public use and enjoyment. Public at
large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile
lands. 106
4.1.5 Section 3 of the EPA, 1986 Act enjoins the Central Government of Aressia to take such
measures as it deems necessary or expedient for the purpose of protecting and improving quality
of the environment and preventing, controlling and abating environmental pollution. Similarly,
while interpreting the word forest conservation it is required to provide an extended meaning to
the term, so as to preserve forest land from deforestation to maintain ecology and to prevent
environmental degradation. Environment and ecology are national assets. They are subject to

101

Lafarge Umiam Mining Private Limited and another v Union Of India And Others (2011) 7 SCC 338
Virendra Gaur v State of Haryana (1995) 2 SCC 577
103
M.C. Mehta v Union of India AIR 1987 SC 1086; Indian Council for enviro legal action v Union of India.(1996)
3 SCC 212; Vellore Citizens Welfare Forum v Union of India, (1996) 5 SCC 647
104
In Francis Coralie Mullin vs. Union Territory,1981 2 SCR 516
105
The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of
the country. Parliamentary Debate: Rajya Sabha : official report, Vol. XCVIII, No.5, Nov. 9,1976, columns 158-71
106
M.C. Mehta v Kamalnath, AIR 2002 SC 1515
102

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MEMORIAL ON BEHALF OF THE PETITIONER

inter-generational equity. 107Among international norms is Principal 21 of the 1972 Stockholm

Declaration 108 on the Human Environment. 109The Supreme Court of India has relied on several
principles of Rio Declaration and Stockholm Convention 110 that highlight the importance of
conservation in planning for economic developments. 111Owing to these obligations, it is
incumbent upon the Union of Aressia to uphold their spirit.
4.1.6 The Courts have laid down that Right to healthy environment being a concomitant of
Right to Life guaranteed under Article 21 of Constitution of India, the State should endeavor to
protect the environment and safeguard the forest in discharge of their Constitutional duty under
Article 48A of Constitution of India. But, if the development project aimed at welfare of the
people also involves degradation of forest area, balance must be struck. It is expedient that the
Court has to be liberal towards ensuring social justice and protection of human rights of the
citizens of Aressia.112It is pertinent to state that the issues of environment must and shall receive
the highest attention from this Court. 113 Hence, it is stressed that Environmental considerations
are not to be compromised.114
4.1.7 The Court in cases where it was contended that, conservation of forest is violative of
Article 19(1)(g),it was held that the statute intends to impose a total ban which is to be found in
public interest and because of their particular significance to maintain ecology ,they are needed
to preserve bio-diversity.115It is submitted that in the present case, implementation of the project
would result in environmental destruction which is against the public interest and so it has to
undergo a strict scrutiny of this Court.
4.1.8 The object of the Act is to ensure the availability of sufficient water not only for
drinking or sanitation but also for agricultural and industrial purposes. 116It has also been held that
107

M.C. Mehta v Union of India, (2009) 6 SCC 142

Stockholm Declarartion, June., 6, 1972, U.N Doc. A/Conf.48/14/Rev
109
The fundamental right to life guaranteed under Article 21 of the Indian Constitution has been interpreted by the
Supreme Court of India to include the right to wholesome environment see Subhash Kumar v State of Bihar AIR
1991 SC 420 at 424
110
Rio Declaration on Environment and Development,Aug.,12 1992, A/CONF.151/26(Vol 1)
111
Id., Principle 2,4 cited in Essar Oil Ltd. v. Halar Utkarsh Samiti, (2004) 2 SCC 392;Id., Principles 4,8,22,25
112
M.C.Mehta v Union of India (2004) 12 SCC 118
113
Tarun Bhagat Singh, Alwar v Union of India (Sariska Case) W.P. No 509 of 1991
114
Vellore Citizens Welfare Forum v Union Of India, AIR 1966 SC 2715
115
Sushila Saw Mill v State of Orissa (1995) 5 SCC ; see also Ivory Traders & Mfg. Assn. v. Union of India, AIR
1961 97 Del 267
116
Factsheet 8
108

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MEMORIAL ON BEHALF OF THE PETITIONER

Economic development is not to be at the cost of complete degradation of forest or environment

and eco system provided by green area of forest. 117Such a policy or development plan of linking
rivers has to evolve a systemic approach so as to balance economic development and
environment protection. Therefore, there is an absolute need to take all precautionary measures
when forest lands are sought to be directed for non-forest use.118
4.1.9 Environmental Impact Assessment balances economic benefits with environmental costs.
The logic of such an assessment dictates that before a project is undertaken, its economic
benefits must substantially exceed its environmental costs. 119It is submitted that in the present
case, linking of rivers was suggested for the cause to minimize water scarcity. It was also
mentioned that the culprit for such scarcity were industries. However, the Government has
deviated from such cause and the present project aims to provide water to industries. 120Thus,
apart from destroying the forest ecosystem the project will also make the water resources more
vulnerable to industrial abuse. The State action must conform to some standard or norm which is
rational and non- discriminatory. 121

4.2 THAT

THE

LINKING

OF

RIVERS ACT, 2010

VIOLATES THE PROVISIONS OF

FOREST

(CONSERVATION) ACT, 1980

4.2.1 It is humbly submitted that the provisions of Linking of River Act, 2010 is in
contravention to the object of Forest Conservation Act, 1980 (hereinafter referred to as
FCA,1980). The object of the 1980 Act is conservation of forests and to prevent depletion
thereof. It is an established principle that the Court is bound to interpret the provisions of a
legislation which would further its object. 122It has been held that Courts are bound to construe
the ambiguous words in a sense which will carry out the purpose of the act and not in a way
which will travel beyond. 123 It is one of the settled rules of construction that to ascertain the
legislative intent all the constituent parts of a statute are to be taken together and each word,

117

T.N. GodavaramThirumulpad V. Union of India, (2008) 6 SCR 321: (2008) 7 SCC 126
T.N GodavaramThirumulpad v. Union of India AIR 2005 SC 4256
119
India has adopted this norm for select projects which are covered under the Environmental Impact Assessment
(EIA) regulations introduced in January, 1994.
120
Factsheet 8
121
RammanaDayaram Shetty v. International Airport Authorityof India, AIR 1979 SC 1628.
122
Nature Lovers Movement v. State of Kerala, (2009) 5 SCC 373 at 393
123
Biswambhar Singh V. State Of Orrisa ,AIR 1954 SC 139: 1954 SCR 842.
118

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MEMORIAL ON BEHALF OF THE PETITIONER

phase or sentence is to be considered in the light of the general purpose and object of the Act
itself.124 It is pertinent to mention that the impugned act is in direct violation of the objects of
FCA, 1980 which is unyielding towards any activity which might cause destruction of forest
ecosystem.
4.2.2 Section 2 of the FCA, 1980 makes it mandatory for any authority or State Government to
take the Central governments permission prior to indulging in any activity constituting a nonforest purpose on a forest land. The non-obstante clause in this section provides an overriding
effect on the powers conferred upon ALR by sub-section 3(3) of the Linking of Rivers Act,
2010. It is recognized that a non obstante clause is a legislative device which is usually employed
to give overriding effect to certain provisions over some contrary provisions that may be found
either in the same enactment or some other enactment, that is to say, to avoid the operation and
effect of all contrary provisions. 125 Thus, allocating arbitrary power in all matters relating to
implementation of project to ALR grossly violates the spirit of Section 2 of the FCA, 1980.
4.2.3

It is also pertinent to mention that the matter of allocation of forest land for such

purposes requires to be first scrutinized by an advisory committee under FCA, 1980 and the
subsequent rules framed under it. It is submitted that the authority does not have the power to
forego this procedure and the Union as a patron of forest conservation should have refrained
from such a delegation . 126In the context, the expression other authority, as is evident from the
above reproduction of the provision, is all-comprehensive and far wide to include any authority
concerned with the matter. 127 The power conferred under an environmental statute may be
exercised only to advance environmental protection and not for a purpose that would defeat the
object of law128 and so it must be read in a manner that approval from the central government is
mandatory. Therefore, the Union being a patron of environment protection its action should in no
way derogate them.

124

Aswani Kumar Ghose v. Arbind Bose, AIR 1953 SC 369 :1952 SCR319.
Union of India v. G.M. Kokil ,1984 Supp SCC 196:1984 SCC (L&S) 631, see also R.S. Raghunath v. State of
Karnataka, (1992) 1 SCC 335 ; Aswini Kumar Ghose v. Arabinda Bose AIR 1952 SC 369 ;Chandavarkar Sita Ratna
Rao v. Ashalata S. Guram (1986) 4 SCC 447
126
National Forest Conservation(amendmen) rules, 2104 notified on 14,Mar 2014.
127
Union of India v. Kamath Holiday Resorts (P) Ltd., (1996) 1 SCC 774 at 776
128
BangloreMedcial Trust v B.S. Muddappa AIR 1991 SC 1902 at 1911, 1924
125

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MEMORIAL ON BEHALF OF THE PETITIONER

PRAYER

Therefore in the light of issues involved, arguments advanced, reasons given and the authorities
cited this Honble Court may be pleased:
a)

To set aside the order of High Court and declare that the Petition filed by Forum for
Environmental Right (FER) is maintainable before the High Court of Neruda.

b) To declare that Section 3 of the Linking of Rivers Act, 2010 is ultra vires to the
Constitution of Aressia.
c) To quash the decision taken by Authority on Linking of Rivers and issue a writ of
mandamus for the inclusion of State of Vindhya in the first phase of the project for the
enforcement of the Fundamental Rights of the people of State of Vindhya and Normanda.

d) To set aside the judgment of National Green Tribunal and declare that Linking of Rivers
Act, 2010 is in contravention of the environmental rights of citizens of Aressia and the
provisions of the Forest (Conservation) Act, 1980.
Any other and further relief which this Honble Court may be pleased to grant in the interests of
Justice and Equity. All of which is respectfully submitted.
For This Act of Kindness, the Appellant/Petitioner Shall Duty Bound Forever Pray.
Sd/(Counsels for the Appellant/Petitioner)

XIV