Professional Documents
Culture Documents
V.
.RESPONDENTS
APPLICATION NO.___/2016
THE APPLICATIONS FILED BEFORE THIS HONBLE TRIBUNAL ARE NOT MAINTAINABLE.... 1
1.1
The Applicants do not have the locus standi to file an application in this
The Application is barred by the limitation stipulated under NGT Act, 2010 2
1.3
This Honble Tribunal lacks the subject-matter jurisdiction over the present
matter ................................................................................................................................ 3
2. THE
GRASSLAND
GILEAD
CANNOT BE TERMED AS A
FOREST
UNDER
FOREST
OF
REPUBLIC
OF
DORADO
HAS
NOT
VIOLATED
TRIBAL
Constitution ...................................................................................................................... 5
3.3
3.4
GOVERNMENT OF
REPUBLIC
OF
DORADO
II
MEMORANDUM ON BEHALF OF THE RESPONDENTS
INDEX OF AUTHORITIES
TABLE OF CASES
Amit Maru v. Ministry of Environment and Forests, 2013 SCC Online 6972 .......................... 2
Aradhana Bhargav and Anr. v. MoEF and Ors., 2013 SCC Online NGT 84 ............................ 2
B.D. Sharma v. Union of India, 1992 Supp (3) SCC 93 ............................................................ 7
Bank of India and Ors. v. Jayantilal N. Mistry and Ors., AIR 2016 SC 1 ............................... 10
Bharti Airtel Ltd. v. Union of India, (2015) 12 SCC 1 .............................................................. 7
Buttu Prasad Kumbhar v. Steel Authority of India Ltd., 1995 Supp (2) SCC 225 .................... 6
Chameli Singh v. State of Uttar Pradesh, (1992) 2 SCC 549 .................................................. 12
Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715 ............................................ 12
Commissioner of Police and Ors. v. Acharya Jagdishwarananda Avadhuta and Anr., (2004)
12 SCC 770 ............................................................................................................................ 8
Dr. M. Ismail Faruqui v. Union of India, AIR 1995 SC 605 ..................................................... 8
for Environmental Protection Amravati v. Union of India, Application No. 153(THC)/2013 .. 9
G. Sundarrajan v. Union of India, (2013) 6 SCC 620................................................................ 7
Gram Sabha of village Battis Shirala v. Union of India, 2014 SCC Online Bom 1395 ............ 8
Hari Khemu Gawali v. Deputy Commissioner of Police, Bombay, AIR 1956 SC 559 ............ 6
Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 281 ...................... 12
Jan Chetna v MoEF, SCC Online NGT 81 ................................................................................ 9
K. Guruprasad Rao v. State of Karnataka, (2013) 8 SCC 418................................................... 7
Kalpavriksh and Ors. v. Union of India, Application no. 116 (THC) of 2013 ............................ 3
Kehar Singh v. State of Haryana, 2013 SCC Online NGT 52 ................................................... 2
Kishore Deepak Kodwani v. The Chief Secretary, Government of Madhya Pradesh 2014 SCC
Online 6702 ............................................................................................................................ 2
Leo F. Saldhana v. Union of India, 2014 ALL (I) NGT Reporter (3) (SZ) ............................... 2
M.P. Patil v. Union of India, Appeal no.12/2012 .................................................................... 11
Maneka Gandhi v. Union of India, AIR 1978 SC 597............................................................... 6
Municipal Corporation. v. Jan Mohammad Usmanbhai and Anr., AIR 1986 SC 1205 ............ 6
N.D. Jayal & Anr v. Union of India & Ors., AIR 2004 SC 867 .............................................. 12
Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751 ...................................... 6, 12
Nekumar K. Porwal v. Mohanlal Harigovindas, AIR 1963 Bom 246 ....................................... 2
III
MEMORANDUM ON BEHALF OF THE RESPONDENTS
V
MEMORANDUM ON BEHALF OF THE RESPONDENTS
STATEMENT OF JURISDICTION
The applicants have approached this Honble Tribunal under section 14 of the National
Green Tribunal Act, 2010. However, the Respondents challenge the jurisdiction of this
tribunal as well as maintainability of the applications filed.
VI
MEMORANDUM ON BEHALF OF THE RESPONDENTS
STATEMENT OF FACTS
1. The Republic of Dorado is the ninth largest economy in the world with a population
of 1.2 billion. Dorado had 15,00,000 hectares of semi-arid grasslands, named Gilead,
which was inhabited by the Tribal community called Tarda. However, due to
anthropogenic pressure, the grasslands were converted into townships and industrial
areas leaving 1,50,000 hectares of grasslands intact.
2. The Government announced to establish a Uranium Enrichment facility and Defence
related research institute to develop indigenous aircrafts and missiles in the District of
Khyber in 2013. 12 villages of District of Khyber formed an action council Radava
Mehel to raise a voice against the government for establishing such facilities. The
government did not divulge the information regarding the projects as it was protected
under Right to Information Act, 2005 for the construction of several secret projects in
that area. The government further proposed to divert the river through the grasslands
along with the plantation of 3,00,000 trees. The government further proposed to
provide employment to every person in the region as per his/her qualifications.
3. An NGO Environmental Action Network, inter alia, based in various countries and of
them being Isqandar, started working with Radava Mehel and alleged that no public
consultation and hearing was conducted prior to construction of such projects.
Furthermore, there was a rumour in February 2015 that 15 Blackbucks and 1 Great
Bustard had died due to the bomb testing carried out by the government.
4. A newspaper in May 2015 published that the government purportedly did not obtain
necessary environmental clearance for the construction of such projects. The
Government stated in response that necessary clearance was obtained back in January
2015 from State Environment Impact Assessment Authority (SEIAA) for Uranium
Enrichment facility and spent fuel storage facility and the same cannot be published
as it involved concerns of national security.
5. Mr. Tharik Ghulam, a resident of Khyber and Environmental Action Network alleged
to be aggrieved by the ongoing construction in the District of Khyber and claimed it
to be in violation of various environmental legislations of the nation. Hence, the
present application.
VII
MEMORANDUM ON BEHALF OF THE RESPONDENTS
STATEMENT OF ISSUES
1. WHETHER THE APPLICATIONS FILED BEFORE THIS TRIBUNAL ARE MAINTAINABLE?
2. WHETHER
THE GRASSLANDS
GILEAD
IS DEEMED TO BE
FOREST
UNDER
FOREST
VIII
MEMORANDUM ON BEHALF OF THE RESPONDENTS
SUSTAINABLE
SUMMARY OF ARGUMENTS
1. That the applications are not maintainable before this Honble Tribunal.
a. The Environmental Action Network does not have locus standi to file an
application.
b. The applications filed by Mr. Tharik Ghulam as well as the Environmental Action
Network are barred by limitation.
c. That this Honble tribunal does not have jurisdiction to entertain the application
filed by Mr. Tharik Ghulam as it deals with an enactment not stipulated under
Schedule I of the National Green Tribunal Act, 2010.
2. That the Gilead cannot be termed as a forest for the purpose of protection
under Forest Conservation Act, 1980.
a. The Land must be notified, deemed or declared as a forest by the Ministry of
Environment and Forests.
b. The land must have trees which the Gilead did not have.
3. That the rights of Tardas have not been violated
a. This Honble Tribunal does not have jurisdiction to deal with the matters
pertaining to the Scheduled Tribe and Other Forest Dwellers (Recognition of
Forest Rights) Act, 2010. The Government is entitled to acquire the land of forest
dwellers under the Land Acquisition Act, 2013.
b. The Government has not violated Article 19 of the Constitution as it is in the
interests of general public.
c. The Government has not violated Article 21 of the Constitution as the procedure
followed by the Government has been just, fair and reasonable.
4. That the government obtained the environment clearance and did not violate the
Environment Protection Act, 1986
a. The government is exempted from conducting public consultation and hearing.
b. The EIA study need not be done for the exempted projects.
c. The government is not bound to disclose any information related to the projects as
the facilities are concerns of national security.
IX
MEMORANDUM ON BEHALF OF THE RESPONDENTS
X
MEMORANDUM ON BEHALF OF THE RESPONDENTS
ARGUMENTS ADVANCED
1.
THE APPLICATIONS FILED BEFORE THIS HONBLE TRIBUNAL ARE NOT MAINTAINABLE
1. It is humbly submitted that the applications filed by the applicants are not
maintainable before this Honble tribunal because [1.1] the applicants do not have the
locus standi to file an application in this Honble Tribunal [1.2] the applications are
barred by the limitation [1.3] this tribunal lacks the subject matter jurisdiction over the
present matter.
1.1 The Applicants do not have the locus standi to file an application in this Honble
Tribunal
2. It is humbly submitted that the Environmental Action Network does not have locus
standi to file the application. This Honble tribunal is empowered to entertain
applications only which pertain to a substantial question relating to the environment.1
National Green Tribunal Act, 2010 [mentioned as NGT Act hereinafter] stipulates
various instances where the Honble Tribunal can entertain an application.2
3. This Tribunal has given the interpretation of person aggrieved mentioned in section
18 of the Act as one who must have a legal grievance in a way that one should have
been deprived of something wrongfully either directly or indirectly. 3 The application
must not be filed with a mala-fide intention or to pursue vexatious litigation in this
tribunal.4 The Tribunal has also held that person aggrieved must be considered at par
with every citizen under Article 48-A Constitution.5
4. In the instant matter, the Environmental Action Network does not have the locus
standi to file an application under section 14 of the NGT act because first, the
applicant is neither directly nor indirectly affected by the establishment of Uranium
Enrichment Facility and Defence Related Research Institute by the government;
second, the application was filed with mala fide intention and was vexatious as the
1
MEMORANDUM ON BEHALF OF THE RESPONDENTS
2
MEMORANDUM ON BEHALF OF THE RESPONDENTS
13
6, Moot Proposition.
7, Moot Proposition.
15
National Green Tribunal Act, 2010; Kalpavriksh and Ors. v. Union of India, Application no. 116 (T HC) of
2013.
16
2014 SCC Online NGT 1177.
17
Ibid.
14
3
MEMORANDUM ON BEHALF OF THE RESPONDENTS
18
4
MEMORANDUM ON BEHALF OF THE RESPONDENTS
3.1 No violation of the Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006
16. The FR Act, 2006 was not held to be applicable by this Honble tribunal as the land in
that matter was neither a scheduled area nor qualified to be notified or declared or
deemed as forest, even when it had trees planted on the land, because of the fact that
it did not fulfil the criteria laid down by T.N. Godavarman which requires a forest to
be at least notified or deemed as a forest under government records.24
17. Thus, since the grasslands Gilead are not notified, deemed or declared by the
Ministry of Environment and Forest [mentioned as MoEF hereinafter] as forest,
they are not statutorily recognised forest unlike 1,100 hectares of grasslands in
District of Hutin which was explicitly notified.25 Furthermore, there was no planted
tree on Gilead which is a fundamental requirement to call the land as forest. Hence, it
is humbly submitted that the claim of Mr. Tharik Ghulam cannot be sustained under
Forest Rights Act, 2006.
18. In arguendo, the government is not prohibited from acquiring lands of scheduled
tribes or other tribal forest dwellers for the public purpose such as military, defence,
national security etc. and said acquisition would remain valid under the Right to Fair
Compensation
and
Transparency in
Land
Acquisition,
Rehabilitation
and
24
Smt. Mithlesh Bhai Patel v. State of Madhya Pradesh, 2014 (4) FLT 347.
4, Moot Proposition.
26
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013.
25
5
MEMORANDUM ON BEHALF OF THE RESPONDENTS
27
6
MEMORANDUM ON BEHALF OF THE RESPONDENTS
36
7
MEMORANDUM ON BEHALF OF THE RESPONDENTS
27. The Honble Supreme Court has dealt with Articles 25 and 26 and laid down
Essential practices test protecting the rituals, observances and ceremonies as an
essential part of the Religion.47 The essential practice has to be ascertained by the
doctrines, practices and historical beliefs of the Religion.48 There has to be some
evidence, text or historic practice which proves that the practice is so essential that
taking away of that part will result in a fundamental change of the Religion.49
28. Worshipping or praying constitutes an essential practice but the location of offering
such prayers cannot be considered as essential to the religion. 50 In the instant matter,
although worshipping nature and grasslands can be considered as an essential practice
but grasslands per se cannot be integral to the religion of Tardas as that particular
location was not significant to their religious belief.
29. Therefore, it is submitted that taking away of those lands for the purpose of
establishment of facilities would not lead to fundamental alteration in their religious
practice since there remains a vast area of grassland even after establishing facilities
in Varkia.
3.4.2
Commissioner of Police and Ors.v. Acharya Jagdishwarananda Avadhuta and Anr., (2004) 12 SCC 770.
Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest and Ors., (2013) 6 SCC 476.
49
Gram Sabha of village Battis Shirala v. Union of India, 2014 SCC Online Bom 1395.
50
Dr. M. Ismail Faruqui v. Union of India, AIR 1995 SC 605.
51
INDIA CONST. art.25.
52
Supra note 42.
53
Supra note 46.
48
8
MEMORANDUM ON BEHALF OF THE RESPONDENTS
9
MEMORANDUM ON BEHALF OF THE RESPONDENTS
10
MEMORANDUM ON BEHALF OF THE RESPONDENTS
11
MEMORANDUM ON BEHALF OF THE RESPONDENTS
69
Reserve Bank of India and Ors. v. Jayantilal N. Mistry and Ors., AIR 2016 SC 1.
Ibid.
71
Peoples Union of Civil Liberties & Anr v. Union of India & Ors., (2004) 2 SCC 476.
72
Ibid.
73
6, Moot Proposition.
74
Ritusree Samanta v. State of West Bengal, 2013 SCC Online Cal 12117.
70
12
MEMORANDUM ON BEHALF OF THE RESPONDENTS
43. Development has been read to include civil, cultural, political and social aspects in
addition to economic development and has been considered to be a fundamental right
under the Constitution.75 The Honble Supreme Court has read Right to life under
Article 21 as something more than mere animal existence and to provide at least
basic amenities such as shelter, decent environment and employment to the people to
live with human dignity.76
44. The Concept of Sustainable Development not only requires that interests of future
generation must not be compromised for needs of present generation but also strikes
a balance between environmental protection and development.77 The Supreme Court
has held that larger interests of the society must prevail if they are in conflict with the
interests of fewer people.78
45. The priority for the developing nations is to carry out development, unlike developed
nations.79 Although development may result in disturbance to ecology but that cannot
be the sole reason to set aside the development as a whole.80 The Honble Supreme
Court has reiterated this view and held that nuclear plants and production of energy
are prominent for a nation to compete with the developed nations.81 There has to be a
balance between the environment protection and development,82 however, in cases of
conflict the one which promotes larger public interest should be held enforceable.83
46. In the instant matter, the Government of the Republic of Dorado has been
constructing Uranium Enrichment facility and defence related research institute
which will, in effect, generate revenue and employment. The government had also
75
N.D. Jayal & Anr. v. Union of India & Ors., AIR 2004 SC 867.
Chameli Singh v. State of Uttar Pradesh, (1992) 2 SCC 549; State of Maharashtra v. Chandrabhan, AIR 1983
SC 803.
77
Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715.
78
Supra note 36.
79
James A. Lee, Economic Development and the Environment, in ECOLOGY AND LESS DEVELOPED NATIONS 90102 (1971).
80
Ibid.
81
Supra note 43.
82
Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 281.
83
Supra note 46.
76
13
MEMORANDUM ON BEHALF OF THE RESPONDENTS
84
7, Moot Proposition.
14
MEMORANDUM ON BEHALF OF THE RESPONDENTS
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Honble Tribunal may be pleased to adjudge and declare:
1. That the applications filed before the Honble National Green Tribunal are not
maintainable.
2. That the Gilead cannot be deemed to be a forest for the purpose of Forest
Conservation Act, 1980.
3. That the government has not violated the rights of Tardas by establishing the facilities
in the District of Khyber.
4. That the government has obtained the required environmental clearance prior to the
establishment of the facilities.
5. That the Government has adhered to the principle of Sustainable development while
carrying out such developmental activity.
And pass any other relief, that this Honble tribunal may deem fit and proper in the interest of
justice, equity and good conscience.
XI
MEMORANDUM ON BEHALF OF THE RESPONDENTS