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T- 09

B.M.Sreenivasaiah Memorial 2nd National Moot Court Competition, 2016


BEFORE THE HONBLE SUPREME COURT OF KANO
[UNDER ARTICLE 136 OF THE CONSTITUTION OF KANO]
IN THE MATTER OF

STATE OF MANDEVILLEPETITIONER

V.

STATE OF KARAKRESPONDENT

ON SUBMISSION TO THE HONBLE SUPREME COURT OF KANO


MEMORIAL FILED ON BEHALF OF THE PETITIONER

B.M.SREENIVASAIAH MEMORIAL 2ND NATIONAL MOOT COURT COMPETITION, 2016

TABLE OF CONTENTS

INDEX OF AUTHORITIES........................................................................................................... 4
STATEMENT OF JURISDICTION............................................................................................... 8
STATEMENT OF FACTS ............................................................................................................. 9
STATEMENT OF ISSUES .......................................................................................................... 10
SUMMARY OF ARGUMENTS .................................................................................................. 11
ARGUMENTS ADVANCED ...................................................................................................... 14
1. MAINTAINABILITY OF THE SPECIAL LEAVE PETITION BEFORE THE SUPREME
COURT OF KANO................................................................................................................... 14
A. INDISPUTABLE INHABITANCE OF JURISTICTION OF THE SUPREME COURT
OF KANO: ............................................................................................................................ 14
B. MATTER IS WITHIN THE SCOPE OF THE COURTSS JURISDICTION: ............... 16
C. LACK OF ALTERNATIVE REMEDY: .......................................................................... 19
2. CLEARANCE OBTAINED BY THE STATE OF KARAK IS IN DISCORD WITH THE
PROVISIONS OF LAW ........................................................................................................... 21
A. NEGLECT OF APPROPRIATE FORUM: ...................................................................... 21
B. INTERNATIONAL WATER SHARING PRINCIPLES:................................................ 22
C. INFRINGEMENT OF CONSTITUTIONAL PROVISIONS: ......................................... 24
D. REASONABLE LIKELIHOOD OF BIAS: ..................................................................... 25
3. THE CONSTRUCTION OF THE AISHANI JAL PROJECT MUST BE HALTED .......... 28

MEMORIAL ON BEHALF OF PETITIONER

B.M.SREENIVASAIAH MEMORIAL 2ND NATIONAL MOOT COURT COMPETITION, 2016


A. THE CONSTRUCTION OF THE AISHANI JAL PROJECT HAS VAST AND
IMMENSE ADVERSE ECOLOGICAL EFFECT AND HENCE MUST NOT BE
IMPLEMENTED: ................................................................................................................. 28
B. THE CONSTRUCTION OF THE DAM IS IN VIOLATION OF THE RIGHTS OF
PEOPLE IN STATE OF MANDEVILLE: ........................................................................... 33
PRAYER ....................................................................................................................................... 36
APPENDIX ................................................................................................................................... 37
ABBREVIATIONS USED: ...................................................................................................... 37
EXHIBITS .................................................................................................................................... 39
CONSTITUTIONAL PROVISIONS........................................................................................ 39
ISRWD Act,1956 ...................................................................................................................... 40
THE WILDLIFE PROTECTION ACT,1972: .......................................................................... 41
INTERNATIONAL AUTHORITIES ....................................................................................... 42
WORLD CHARTER FOR NATURE, 1982: ........................................................................ 42
BERLIN RULES ON WATER RESOURCES, 2004: .......................................................... 43
CONVENTION ON BIOLOGICAL DIVERSITY,1993:..................................................... 43
EARTH SUMMIT,RIO DECLARATION,1992: ................................................................. 44
STOCKHOLM DECLARATION,1972 ................................................................................ 44
BRUNDTLAND REPORT, OUR COMMON FUTURE,1987: ........................................... 44

MEMORIAL ON BEHALF OF PETITIONER

B.M.SREENIVASAIAH MEMORIAL 2ND NATIONAL MOOT COURT COMPETITION, 2016

INDEX OF AUTHORITIES

CASES
A. P. Pollution Control Board v. Prof. M. V. Nayudu & Ors. AIR 1999 SC 812 ......................... 31
A.K. Kraipak & Ors. v. Union of India & Ors. AIR 1970 SC 150 ................................................ 26
Association for Environmental Protection v. State of Kerala & Ors.(2013)7 SCC 226 ........ 30, 34
B. Premanand & Ors. v. Mohan Koikal & Ors. (2011) 4 SCC 266 ............................................. 22
Baigana & Ors. v. Deputy Collector of Consolidation. AIR 1978 SC 944 ................................... 20
Blaze and Central (P.) Ltd v. Union of India and Ors. AIR 1980 Kant. 186................................ 26
Dahanu Taluka Environment Protection Group v. Bombay Suburban Electricity Supply Co.
Ltd.,(1991) 2 SCC 539 .............................................................................................................. 29
Deepak Kumar Etc. v. State of Haryana & Ors. Etc. AIR 2012 SC 1386 .............................. 29, 32
Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat & Ors.
AIR 1991 SC 2176........................................................................................................................ 19
Diwan Bros. v. Central Bank of India, Bombay and Ors. AIR 1976 SC 1503.............................. 15
Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors. AIR 1954 SC 520 ............................... 17
Essar Oil Ltd. v. Halar Utkarsh Samiti & Ors. AIR 2004 SC 1350 ............................................. 31
Essar Oil Ltd. v. Haldar Utkarsh Samiti AIR 2004 SC 1834........................................................ 34
G. Sarana v. University Of Lucknow & Ors. AIR 1976 SC 2428 ................................................. 26
Gurudevdatta VKSSS Maryadit & ors. v. State of Maharashtra & Ors. (2001) 4 SCC 534 ........ 21
Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala & Ors.AIR 1961 SC 1669............. 17
Harshad S. Mehta & ors. v. State of Maharastra., (2001) 8 SCC 257 ......................................... 22
In the matter of: Cauvery Water Disputes Tribunal. AIR 1992 SC 522 ..................... 19, 20, 23, 24
Jai Bhagwan v. Management of the Ambala Central Co-operative Bank Ltd. & Anr.
AIR 1984 SC 286........................................................................................................................... 20
Jaswant Sugar Mills Ltd. Meerut v. Lakshmichand & Ors. AIR 1963 SC 677............................. 16

MEMORIAL ON BEHALF OF PETITIONER

B.M.SREENIVASAIAH MEMORIAL 2ND NATIONAL MOOT COURT COMPETITION, 2016


Juhi Kumari v. State of Bihar.2011 (59) BLJR 2662 .................................................................... 34
Kamini Kumar v. West Bengal. AIR 1972 SC 2060 ...................................................................... 25
Kunhayammed & Ors. v. State of Kerala & Anr. AIR 2000 SC 2587 .......................................... 14
M. C. Mehta v. Kamal Nath.(1997) 1 SCC 388 ............................................................................ 34
M. C. Mehta v. Union of India & Ors. AIR 2001 SC 1948 ........................................................... 33
M. C. Mehta v. Union of India AIR 1988 SC 1037 ....................................................................... 33
M. C. Mehta v. Union of India. (1997) 3 SCC 715 ....................................................................... 31
M. C. Mehta v. Union of India. AIR 2004 SC 4016 ...................................................................... 31
M.C.Mehta v. Union of India (2001) 3 SCC 756 .......................................................................... 33
Manak Lal v. Dr. Prem Chand. AIR 1957 SC 425........................................................................ 26
Master Construction Co. (P) Ltd. v. State of Orissa & Anr. AIR 1966 SC 1047.......................... 16
Metropolitan Properties Co. Ltd. v. Lannon, (1968) WLR 815 .................................................... 26
Minerva Mills Ltd. & ors. v. Union of India & Ors. AIR 1980 SC 1789 ...................................... 25
N. D. Jayal & Anr v. Union of India & Ors. AIR 2004 SC 867 .................................................... 29
Narmada Bachao Andolan v. Union of India AIR 2000 SC 3751 ............................................... 30
Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors. AIR 1986 SC 180 ....................... 25
Penu Balakrishna Iyer & Ors. v. Ariya M. Ramaswami Iyer & Ors. AIR 1965 SC 195 .............. 15
Sanjeev Coke Manufacturing Company v. Bharat Coking Coal Ltd. & Anr. AIR 1983 SC 239 .. 18
Satish v. State of Uttar Pradesh. (1992) Supp 2 SCC 94 .............................................................. 34
State of Andhra Pradesh v. State of Karnataka AIR 2001 SC 1560. ............................................ 34
State of Kansas v. State of Colorado. 206 U.S. 46 (1907) ............................................................ 23
State of Nebraska v. State of Wyoming. 373 U.S. 541 (1963)....................................................... 23
State of Tamil Nadu v. State of Karnataka & Ors. 1991 Supp (1) 240................................... 18, 19
Subash Kumar v. State of Bihar. (1991) 1 SCC 598 ..................................................................... 33
T. N. Godarvarman Thirumalpad v. Union of India. AIR 2005 SC 4256 ..................................... 33
T. N. Godarvarman Tirumalpad v. Union of India & Ors., (2013) 8 SCC 198............................ 32
T.N.Godarvarman Thirumalpad v. Union of India. (2002) 10 SCC 606 ...................................... 33
Tarun Bharat Sangh Alwar v. Union of India & Ors. AIR 1992 SC 514 ............................... 28, 29
The Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi and the Bharat Bank
Employees Union, Delhi AIR 1950 SC 188 ............................................................................... 17
Vellore Citizens Welfare Forum v. Union of India & Ors. AIR 1996 SC 2715 ..................... 30, 32
MEMORIAL ON BEHALF OF PETITIONER

B.M.SREENIVASAIAH MEMORIAL 2ND NATIONAL MOOT COURT COMPETITION, 2016

BOOKS REFERRED

1. Ahluwalia S.K, International Environmental Policy, ABD Publishers, Rajasthan.


2. Arvind.P.Datar, Commentary on the Constitution of India, Vol.1, 2nd Ed. Reprint 2010,
Lexis Nexis, Butterwords Wadhwa Publication, Nagpur.
3. Arvind.P.Datar, Commentary on the Constitution of India, Vol.2, 2nd Ed. Reprint 2010,
Lexis Nexis, Butterwords Wadhwa Publication, Nagpur.
4. Basu.D.D, Commentary on the Constitution of India, Vol.5, 8th Ed. 2009,Lexis Nexis,
Butterwords Wadhwa Publication, Nagpur.
5. Basu.D.D, Commentary on the Constitution of India, Vol.8, 8th Ed. Reprint 2012,Lexis
Nexis, Butterwords Wadhwa Publication, Nagpur.
6. Basu.D.D, Shorter Constitution of India, Vol.1, 14th Ed., Lexis Nexis, Butterwords
Wadhwa Publication, Nagpur.
7. Basu.D.D, Shorter Constitution of India, Vol.2, 14th Ed., Lexis Nexis, Butterwords
Wadhwa Publication, Nagpur.
8. Choudhry R.N, Law of Forests in India, 1999 Ed., Orient Publication Co.
9. Dodda Srinivas Rao, Inter-State Water Disputes in India,1998, Deep & Deep Publications
Pvt. Ltd., New Delhi.
10. Dr. Maheshwara Swamy.N, Laws Relating to Environmental Pollution & Protection,
Asia Law House.
11. Indrajith Dube, Environment Jurisprudence, Lexis Nexis, Butterwords Wadhwa
Publication, Nagpur.
12. Jain M.P & Jain S.N, Principles of Administrative Law,5th Ed. Reprint 2009, Lexis
Nexis, Butterwords Wadhwa Publication, Nagpur.
13. Jain.M.P, Indian Constitutional Law, 7th Ed., 2014, Lexis Nexis, Butterwords Wadhwa
Publication, Nagpur.
14. Justice Doabia.T.S, Environment & Pollution Laws in India, Vol.1 & 2, 2nd Ed., 2010,
Lexis Nexis, Butterwords Wadhwa Publication, Nagpur.

MEMORIAL ON BEHALF OF PETITIONER

B.M.SREENIVASAIAH MEMORIAL 2ND NATIONAL MOOT COURT COMPETITION, 2016


15. Paras Diwan & Peeyushi Diwan, Vol.1, Environment Administration Law & Judicial
Attitude, Deep & Deep Publications Pvt. Ltd., New Delhi.
16. Shukla.V.N, Constitution of India, 12th Ed., 2013, Eastern Book Company, Lucknow.

LEGAL DATABASES
1. All India Reporter
2. Manupatra
3. SCC Online

STATUTES REFERRED
1. The Constitution of India, 1950
2. Environment Protection Act, 1986
3. Wildlife Protection Act, 1972
4. Inter-State River Water Disputes Act, 1956

LEXICONS REFERRED
1. Ramanatha Aiyar.P, Concise Law Dictionary, 5th Ed., 2014, Lexis Nexis, Butterwords
Wadhwa Publication, Nagpur.

INTERNATIONAL CONVENTIONS
1. Berlin Rules on Water Resources, 2004
2. Convention on Biological Diversity, 1993
3. Earth Summit, Rio Declaration, 1992
4. Helsinki Rules, 1966
5. Stockholm Declaration, 1972
6. World Charter for Nature, 1982
7. World Commission on Economic Development, 1987
MEMORIAL ON BEHALF OF PETITIONER

B.M.SREENIVASAIAH MEMORIAL 2ND NATIONAL MOOT COURT COMPETITION, 2016

STATEMENT OF JURISDICTION

The Honourable Supreme Court of Kano has jurisdiction in this matter under Article 136 of the
Constitution of Kano which reads as follows:
Article.136: Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or
made by any court or tribunal constituted by or under any law relating to the Armed Forces.

MEMORIAL ON BEHALF OF PETITIONER

B.M.SREENIVASAIAH MEMORIAL 2ND NATIONAL MOOT COURT COMPETITION, 2016


STATEMENT OF FACTS

The Union of Kano, the fastest developing democratic republic is divided into North,
South, East and West Zone. The Nudi Adami Party (NAP) at the centre has made
promoting the use of the abundant renewable energy as its National Policy. The two
neighbouring States, State of Mandeville and State of Karak, re-organised on the basis of
language are situated in the predominantly agricultural Eastern Zone of Kano and have
had stressed relations pertaining to distribution of water from the inter-state river Aishani
which takes birth in the State of Karak and has a river basin covering 34,273 sq.km in the
State of Karak and 43,856 sq.km in State of Mandeville.

The tensions were kept under control as both States were ruled by the same political party
(Kano Adami Party). The two State governments also entered into a water sharing
agreement which proposed the construction of a water dam AISHANI JAL to aid the
drought prone areas in the State of Karak in 1970.

In 1985, a new regional party named Mandi Adami Party (MAP) displaced the former in
Mandeville while the KAP still ruled in Karak. Thus due to ideological differences, the
AISHANI JAL Project was completely stalled. Around the same time, a drought hit the
western part of Karak claiming lives and instigating farmers to riot against the
Government for stalling the project.This led to the change in Government in Karak and
the Nudi Adami Party (NAP) came to power. When talks resumed to settle the issue,
Karak claimed that it would require 7.5 TMC of water to resolve its drought issues which
was not accepted by Mandeville on environmental grounds.

Mandeville approached the Union of Kano for referring the matter to a Water Tribunal
which was accordingly created. Meanwhile Karak sought clearance for the AISHANI
JAL Project from the Union Government as there was a complete halt on its economy.
The Government, through the Ministry of Water Resources and the National
Environment Engineering Institute gave in principle clearance causing Mandeville to
approach the Water Tribunal seeking a stay on the clearance and an injunction to stop the
construction.The tribunal, not convinced with this line of argument rejected the
application. Aggrieved by this, the State of Mandeville has approached the Supreme
Court of Kano seeking relief.
MEMORIAL ON BEHALF OF PETITIONER

B.M.SREENIVASAIAH MEMORIAL 2ND NATIONAL MOOT COURT COMPETITION, 2016

STATEMENT OF ISSUES

ISSUE 1: WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE


BEFORE THE SUPREME COURT OF KANO?

ISSUE 2: WHETHER THE CLEARANCE OBTAINED BY THE STATE OF


KARAK IS IN DISCORD WITH THE PROVISIONS OF LAW?

ISSUE 3: WHETHER THE CONSTRUCTION OF THE AISHANI JAL PROJECT


MUST BE HALTED?

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SUMMARY OF ARGUMENTS

ISSUE-1: MAINTAINABILITY OF THE SPECIAL LEAVE PETITION BEFORE THE


SUPREME COURT OF KANO:
A. INDISPUTABLE INHABITANCE OF JURISTICTION OF THE SUPREME COURT
OF KANO:
The existence of jurisdiction confers upon the Court, the authority to adjudicate any case referred
to it. Over and above the normal appellate powers conferred by Articles 132, 133 and 134 of the
Constitution on the Supreme Court to hear appeals from the lower Courts and Tribunals in
constitutional, civil and criminal cases, a very special appellate jurisdiction is conferred on the
Court by Article 136. Under this provision, the Supreme Court has power to grant, in its
discretion, special leave to appeal from any judgement, decree, determination, sentence or order
in any cause or matter passed or made by any Court or Tribunal in the territory of Kano, except a
Court or Tribunal constituted by law relating to Armed Forces. In Article 136, the word
judgement and decree which are used in Articles 132 and 133 are retained. Similarly, the
words judgement and sentence occurring in Article 134 are also retained. But the expression
final order becomes order. Additionally, the words determination, Tribunal and any
cause or matter are used. They show that an appeal will lie also from a determination or order of
any Tribunal in any cause or matter.
B. MATTER IS WITHIN THE SCOPE OF THE COURTSS JURISDICTION:
Paying due regard to the language used in Article 136 of the constitution, this Court is manifestly
invested with jurisdiction to entertain appeals from judgements, decrees, determinations,
sentences or orders in causes or matters passed by Courts and Tribunals. Tribunals which are
found vested with certain functions of a Court of Justice and have some of its trappings also
would fall within the ambit of Article 136 and would be subject to the appellate control of this
Court. When a Water Disputes Tribunal has been constituted by the Central Government as per
the provisions of the ISRWD Act, 1956, it is to be invested with the certain same powers as are
vested in a civil court under the Code of Civil Procedure, 1908. The Tribunal is a statutory
authority constituted under an Act made by the Parliament and this Court has jurisdiction to
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decide the parameters, scope, authority and jurisdiction of the Tribunal. This Court is the
ultimate interpreter of the provisions of the ISRWD Act and has an authority to decide the limits,
powers and the jurisdiction of the Tribunal constituted under the Act.
ISSUE-2: CLEARANCE OBTAINED BY THE STATE OF KARAK IS N DISCORD
WITH THE PROVISIONS OF LAW:
A. NEGLECT OF APPROPRIATE FORUM:
When a request has been received by the Central Government from any State Government
regarding a water dispute and the Central Government is of the opinion that the dispute cannot be
solved through negotiations, then the Central Government shall constitute a Water Disputes
Tribunal via a notification in the Official Gazette for the adjudication of the water dispute. It is
contended that the clearance given for the furtherance of the JAL project was given in neglect of,
and in by-pass of the appropriate forum constituted for settling this issue, that is, the Tribunal.
B. INTERNATIONAL WATER SHARING PRINCIPLES:
In the present case, the petitioner State, in whose territory the majority of the river basin lies, has
not been consulted, and neither has their welfare been taken into account while such clearance
was given. It is thus contended that the clearance given was not in accordance and was in
disharmony with the International principles of water sharing.
C. INFRINGEMENT OF CONSTITUTIONAL PROVISIONS:
Article 262 of the Constitution provides that Parliament shall be the final and ultimate authority
in regard to enacting laws that deal with water disputes between States. It was under this Article
262 that the ISRWD Act has been enacted. It is the contention of the petitioners that the
clearance given by the Union Government is ultra vires the Constitution as it seeks to override or
neutralize the law enacted by the Parliament.
D. REASONABLE LIKELIHOOD OF BIAS:
The maxim nemo judex in re sua has also come to mean that a judge must be impartial.
A 'likelihood' of bias is given the meaning of 'possibility' of bias rather than 'probability'.

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In lieu of these circumstances, it would appear that the Nudi Adami Party which heads the Union
Government, and who is also ruling the State of Karak may have acted with bias while granting
clearance for the approval of the JAL project.
ISSUE-3: THE CONSTRUCTION OF THE DAM MUST BE HALTED:
A.THE CONSTRUCTION OF THE AISHANI JAL PROJECT HAS VAST AND
ADVERSE ECOLOGICAL IMPACTS AND HENCE MUST NOT BE IMPLEMENTED:
The Ecosystem is an integrated unit and anything that affects a part of the ecosystem is likely to
affect the ecology as a whole. The Aishani river basin is a large river basin and a home to plenty
of flora and fauna. In consideration with the adverse impacts that the construction of the dam
would cause, it is important to protect the habitat charecteristics of fauna which largely depend
on natural and un-interfered ecosystems for survival. What is most important is the protection of
natural habitat of flora and fauna and the Government concerned, must also keep in mind the
necessity for preservation of social and ecological balances for the future generations as well
while implementing projects for better living conditions. Also, the Precautionary Principle
requires that the harm can be prevented even on a reasonable suspicion. Environmental
protection should not only aim at protecting health, property and economic interest but also
protect the environment for its own sake and while dealing with environment issues, the
principle of eco-centrism should be followed rather than anthropocentrism.
B. THE CONSTRUCTION OF THE DAM IS IN VIOLATION OF THE RIGHTS OF
PEOPLE IN STATE OF MANDEVILLE:
Any threat to the ecology can lead to the violation of the right of enjoyment of healthy life
guaranteed under Article 21 of the Constitution of Kano. Moreover, the State has an obligation to
protect and preserve the environment under Article 48A as the public has trust on the
Government regarding the protection of environment and natural resources. The State of
Mandeville, is an ideal place for agricultural activities and the construction project will affect the
irrigation and cultivation patterns of the inhabitants and the independent proposal for 7.5 TMC of
water by State of Karak is also excessive. The adverse ecological effects of the dam construction
will eventually cause the income of State of Mandeville also to decline as tourism is its main
source of income. Thus, the implementation of the project must be halted.

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ARGUMENTS ADVANCED

1. MAINTAINABILITY OF THE SPECIAL LEAVE PETITION BEFORE THE


SUPREME COURT OF KANO

A. INDISPUTABLE INHABITANCE OF JURISTICTION OF THE SUPREME COURT


OF KANO:
i.

The existence of jurisdiction confers upon the Court, the authority to adjudicate any case
referred to it. Blacks Law Dictionary defines Jurisdiction as the power and authority
constitutionally conferred upon a Court or Judge to pronounce the sentence of the law.

ii.

Over and above the normal appellate powers conferred by Articles 132, 133 and 134 of
the Constitution on the Supreme Court to hear appeals from the lower Courts and
Tribunals in constitutional, civil and criminal cases, a very special appellate jurisdiction
is conferred on the Court by Article 136. Under this provision, the Supreme Court has
power to grant, in its discretion, special leave to appeal from any judgement, decree,
determination, sentence or order in any cause or matter passed or made by any Court or
Tribunal in the territory of Kano, except a Court or Tribunal constituted by law relating to
Armed Forces.

iii.

The appellate jurisdiction exercised by the Supreme Court is conferred by Articles 132 to
136 of the Constitution. Articles 132, 133 and 134 provide when an appeal thereunder
would lie and when not. Article 136 of the Constitution is a special jurisdiction conferred
on the Supreme Court which is sweeping in its nature. It is an overriding provision
conferring a special jurisdiction providing for invoking of the appellate jurisdiction of the
Supreme Court not fettered by the sweep of preceding Articles. It is a untrammeled
reservoir of power incapable of being confined to definition bounds; the discretion

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conferred on the Supreme Court being subjected to only one limitation, that is, the
wisdom and good sense or sense of justice of the Judges.1
iv.

Article 136 is worded in the widest terms possible. It vests in the Supreme Court a
plenary jurisdiction in the matter of entertaining and hearing of appeals by granting
special leave against any kind of judgement or order made by a Court or Tribunal in any
cause or matter and the powers can be exercised in spite of the limitations under the
specific provisions for appeal contained in the Constitution or other laws.2

v.

In suitable cases, this Court has to exercise its jurisdiction under Article 136 of the
Constitution in the larger interest of the administration of justice.3

vi.

It is well known that an appeal is a creature of statute and there can be no inherent right
of appeal from any judgement or determination unless an appeal is expressly provided for
by the law itself. The powers given by Article 136 of the Constitution however are in the
nature of special or residuary powers which are exercisable outside the purview of
ordinary law, in cases where the needs of justice demand interference by the Supreme
Court of the land. The Article itself is worded in the widest possible terms. The
Constitution for the best of reasons did not choose to fetter or circumscribe the powers
exercisable under this Article in any way. No enactment which provides for the finality of
decision can in anyway cut down or affect the overriding powers which this Court can
exercise in the matter of granting special leave under Article 136 of the Constitution.4

vii.

Even though an order or determination given or made by a Court or a Tribunal


constituted under a statute provides for finality of judgement, the power of this Court
under Article 136 granted by the Constitution will override any stamp of finality given by
a statute or Act passed by Parliament.5

viii.

Having regard to the wide scope of powers conferred on this Court by Article 136 it is
not possible and, indeed it would not be expedient to lay down any general rule which
would govern all cases. The question as to whether the jurisdiction of this Court under

Kunhayammed & Ors. v. State of Kerala & Anr., AIR 2000 SC 2587.

Union Carbide Corporation, etc., etc. v. Union of India, etc., AIR 1992 SC 248.

State of Maharashtra v. Mahboob S. Allibhoy and Anr., AIR 1996 SC 2131.

Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors., AIR 1954 SC 520.

Diwan Bros. v. Central Bank of India, Bombay and Ors., AIR 1976 SC 1503.

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Article 136 should be exercised or not, and if yes, on what terms and conditions, is a
matter which this Court has to decide on the facts of each case.6
ix.

Additionally, Article 136 of the Constitution confers a discretionary appellate jurisdiction


on this Court against any order passed or any determination made by any Court or
Tribunal in the territory of Kano. The said jurisdiction is not subject to any condition that
the party who seeks special leave of this Court to appeal from such order should exhaust
all his other remedies.7

x.

The expression determination in the context in which it occurs in Article 136 signifies
an effective expression of opinion which ends a controversy or dispute by some authority
to whom it is submitted under a valid law for disposal. The word order must have also
a similar meaning, except that it need not operate to end the dispute.8

xi.

In Article 136, the word judgement and decree which are used in Articles 132 and
133 are retained. Similarly, the words judgement and sentence occurring in Article
134 are also retained. But the expression final order becomes order. Certain other
words are also used in the Article which seem to have a special significance, these being
determination, cause or matter and Tribunal. It is obvious that these words widen
the scope of Article 136. They show that an appeal will lie also from a determination or
order of any Tribunal in any cause or matter.9

B. MATTER IS WITHIN THE SCOPE OF THE COURTSS JURISDICTION:


i.

Paying due regard to the language used in Article 136 of the Constitution, this Court is
manifestly invested with jurisdiction to entertain appeals from judgements, decrees,
determinations, sentences or orders in causes or matters passed by Courts and Tribunals
except those constituted by or under any law relating to the Armed Forces.10

Penu Balakrishna Iyer & Ors. v. Ariya M. Ramaswami Iyer & Ors., AIR 1965 SC 195.

Master Construction Co. (P) Ltd. v. State of Orissa & Anr., AIR 1966 SC 1047.

Jaswant Sugar Mills Ltd. Meerut v. Lakshmichand & Ors., AIR 1963 SC 677.

The Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi and the Bharat Bank Employees Union,

Delhi, AIR 1950 SC 188.


10

Jaswant Sugar Mills Ltd. Meerut v. Lakshmichand & Ors., AIR 1963 SC 677.

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ii.

It is well settled that the expression Tribunal as used in Article 136 does not mean the
same thing as Court but includes within its ambit, all adjudicating bodies, provided
they are constituted by the State and are invested with judicial functions as distinguished
from purely administrative or executive functions.11

iii.

But before an appeal can lie to this Court from a Tribunal it must perform some kind of
judicial function and partake to some extent of the character of a court.12

iv.

A judicial decision is not always the act of a Judge or a Tribunal invested with power to
determine questions of law or fact; it must however be the act of a body or authority
invested by law with authority to determine questions or disputes affecting rights of
citizens and under a duty to act judicially.13

v.

Tribunals which are found invested with certain functions of a Court of Justice and have
some of its trappings also would fall within the ambit of Article 136 and would be subject
to the appellate control of this Court whenever it is found necessary to exercise that
control in the interests of justice.14

vi.

It has also been observed that a body which is required to act judicially and which
exercises judicial power of the State does not cease to be one exercising judicial or quasijudicial functions merely because it is not expressly required to be guided by any
recognised substantive law in deciding the disputes which come before it.15

vii.

When a Water Disputes Tribunal has been constituted by the Central Government as per
the provisions of the ISRWD Act, 195616, it is to be invested with the certain same
powers as are vested in a civil court under the Code of Civil Procedure, 1908.

viii.

It is, therefore, contended that a Tribunal is required to perform a purely judicial function
which but for Article 262 of the Constitution and Section 11 of the ISRWD Act, would
have been performed by a Court of law. Since the Tribunal is a substitute for the Supreme


11

Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors., AIR 1954 SC 520.

12

The Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi and the Bharat Bank Employees Union,

Delhi, AIR 1950 SC 188.


13

Jaswant Sugar Mills Ltd., Meerut v. Lakshmichand & Ors., AIR 1963 SC 677.

14

The Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi and the Bharat Bank Employees Union,

Delhi, AIR 1950 SC 188.


15

Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala & Ors., AIR 1961 SC 1669.

16

Section 4(1), The Inter-State River Water Disputes Act, 1956.

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Court (but for Article 262 and Section 11 of the ISRWD Act, Article 131 would have
applied), it is reasonable to infer that all the powers which the Supreme Court has under
Article 131 can be exercised by the Tribunal while adjudicating a water dispute.
ix.

It is additionally contended that the provisions contained in Section 11 of the ISRWD Act
read along with Article 262 of the Constitution only excludes the jurisdiction of the
Supreme Court or any other Court to decide any dispute or complaint with respect to the
use, distribution or control of the waters of, or in, any inter-state river or river valley. It is
submitted that the petitioners have not come before this Hon'ble Court to get a decision
on merits of any dispute which is within the jurisdiction of and suitable for hearing only
before the Tribunal. The grievance of the petitioners is only to the extent that the Tribunal
wrongly decided that it was not convinced with the line of arguments of the petitioners
and rejected the petitioners application.

x.

The Tribunal is a statutory authority constituted under an Act made by the Parliament and
this Court has jurisdiction to decide the parameters, scope, authority and jurisdiction of
the Tribunal. It is the Judiciary, i.e. the Courts alone have the function of determining
authoritatively the meaning of a statutory enactment and to lay down the frontiers of
jurisdiction of anybody or Tribunal constituted under the statute.17

xi.

No one may speak for the Parliament and Parliament is never before the Court. After
Parliament has said what it intends to say, only the Court may say what the Parliament
meant to say. None else. Once a statute leaves Parliament House, the Courts is the only
authentic voice which may echo (interpret) the Parliament.18

xii.

This Court is the ultimate interpreter of the provisions of the ISRWD Act and has an
authority to decide the limits, powers and the jurisdiction of the Tribunal constituted
under the Act.19


17

State of Tamil Nadu v. State of Karnataka & Ors., 1991 Supp (1) 240.

18

Sanjeev Coke Manufacturing Company v. Bharat Coking Coal Ltd. & Anr., AIR 1983 SC 239.

19

State of Tamil Nadu v. State of Karnataka & Ors., 1991 Supp (1) 240.

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C. LACK OF ALTERNATIVE REMEDY:
i.

Section 11 of the ISRWD Act, read along with Article 262 of the Constitution bars any
Court, including the Honble Supreme Court, from hearing any matter in which a river
water dispute is concerned.

ii.

The distinction between Article 262 of the Constitution and Entry 56 of List I of the
Seventh Schedule of the Constitution is that whereas the former speaks of adjudication of
disputes with respect to use, distribution or control of the water of any Inter-State river or
river valley, Entry 56 speaks of regulation and development of Inter-State rivers and river
valleys. It cannot be disputed that the Act, viz., the ISRWD Act, 1956, is a legislation
under Entry 56 of List I of the Seventh Schedule of the Constitution. The ISRWD Act
1956 can be enacted and has been enacted only under Article 262 of the Constitution. It
has not been enacted under Entry 56 as it relates to the adjudication of the disputes and
with no other aspect either of the Inter-State river as a whole or of the waters in it.20

iii.

It is hence now clear and has been established as per the language used in Article 262 of
the Constitution that the Parliament may by law enact any law for the adjudication of
water disputes and may bar the jurisdiction of all Courts, the Supreme Court included, in
relation to the law so enacted. It is in this regard that the ISRWD Act has been enacted
and Section 11 of the act explicitly bars the jurisdiction of all Courts. This leaves the
petitioners with no alternative remedy in the present case, as the appropriate forum
constituted for adjudicating this dispute has rejected the petitioners application.

iv.

Once the Parliament has enacted the Act providing for adjudication of a dispute in regard
to sharing of water, no other Court in the country has the jurisdiction to grant relief and,
as such, the Tribunal has the inherent powers to grant the relief, otherwise petitioners
shall be left with no remedy for the enforcement of their rights.21

v.

The Courts appellate power under Article 136 is plenary, it may entertain any appeal by
granting special leave against any order made by any Magistrate, Tribunal or any other
Subordinate Court. The width and amplitude of the power is not affected by the practice
and procedure followed by this court in insisting that before invoking the jurisdiction of


20

In the matter of: Cauvery Water Disputes Tribunal, AIR 1992 SC 522.

21

State of Tamil Nadu v. State of Karnataka & Ors., 1991 Supp (1) 240.

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this Court under Article 136 of the Constitution, the aggrieved party must exhaust remedy
available under law.22
vi.

Furthermore, it is difficult to comprehend how a Water Disputes Tribunal to whom a


dispute has been referred to for adjudication can refuse to adjudicate upon it. While the
Government may exercise their discretion in deciding whether to refer or not to refer a
dispute for adjudication, the Tribunal to whom the dispute has been referred has no
discretion to decide whether to adjudicate or not.23

vii.

It may also be pertinent to note that the petitioners have not approached this Honble
Court by-passing the appropriate forum which was constituted for adjudicating this
dispute. The petitioners had approached the Water Tribunal for the adjudication of this
dispute and it is only upon rejection of their application that they have approached this
Honble Court.

viii.

It has been held previously by this Court that the Supreme Court will not and cannot
interfere sans manifest injustice or substantial question of public importance.24It has also
been established that all matters relating to flowing water is a matter of public juris.25

ix.

In lieu of the circumstances of the present case, it is contended that the matter is one fit
for adjudication before this Honble Supreme Court of Kano.


22

Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat & Ors., AIR 1991 SC 2176.

23

Jai Bhagwan v. Management of the Ambala Central Co-operative Bank Ltd. & Anr., AIR 1984 SC 286.

24

Baigana & Ors. v. Deputy Collector of Consolidation, AIR 1978 SC 944.

25

In the matter of: Cauvery Water Disputes Tribunal, AIR 1992 SC 522.

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2. CLEARANCE OBTAINED BY THE STATE OF KARAK IS IN DISCORD WITH THE


PROVISIONS OF LAW

A. NEGLECT OF APPROPRIATE FORUM:


i.

Article 262 of the Constitution empowers the Parliament to provide for adjudication of
any dispute or complaint with respect to the use, distribution, or control of waters of or in
any inter-state river or river valley. It was in pursuance of this provision, that Parliament
enacted the ISRWD Act, 1956.

ii.

When a request has been received by the Central Government from any State
Government regarding a water dispute and the Central Government is of the opinion that
the dispute cannot be solved through negotiations, then the Central Government shall
constitute a Water Disputes Tribunal via a notification in the Official Gazette for the
adjudication of the water dispute.26

iii.

When such a Water Disputes Tribunal has been constituted for an adjudication of a
dispute, the Central Government shall refer the dispute or any matter relevant or
seemingly connected to the dispute to the Tribunal for adjudication.27

iv.

It is a cardinal principle of interpretation of statutes that the words of a statute must be


understood in their natural, ordinary or popular sense and construed according to their
grammatical meaning, unless such construction leads to some absurdity or unless there is
something in the context or in the object of the statute to suggest to the contrary. The
golden rule is that the words of a statute must prima facie be given their ordinary
meaning. It is yet another rule of construction that when the words of the statute are clear,
plain and unambiguous, then the courts are bound to give effect to the meaning,
irrespective of the consequences.28


26

Section 4(1), The Inter-State Water Disputes Act, 1956.

27

Section 5(1), The Inter-State Water Disputes Act, 1956.

28

Gurudevdatta VKSSS Maryadit & ors. v. State of Maharashtra & Ors., (2001) 4 SCC 534.

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v.

The literal rule of interpretation really means that there should be no interpretation. In
other words, we should read the statute as it is, without distorting or twisting its
language.29 There is no doubt that if the words are plain and simple and call for only one
construction, that construction is to be adopted whatever be its effect.30

vi.

Keeping in mind these integral principles of statutory interpretation, it is contended that


the appropriate forum for the adjudication of the dispute being the Tribunal, the
respondents have wrongly approached the Central Government for clearance of the
project.

vii.

The ISRWD Act clearly states that the Central Government shall refer the dispute to the
Tribunal for adjudication. The expression used in the Act is unambiguous and must be
given effect to as was intended while enactment.

viii.

The ISRWD Act does not leave the referring of the dispute to the Tribunal at the
discretion of the Central Government. Although the Central Government may exercise
their discretion while deciding whether or not to constitute a Water Dispute Tribunal,
once it has been constituted, the Central Government is under a compulsion to refer the
water dispute or any relevant matter or seemingly relevant matter to the Tribunal for
adjudication.

ix.

In lieu of the aforementioned arguments, it is contended that the clearance given for the
furtherance of the JAL project was given in neglect of, and in by-pass of the appropriate
forum constituted for settling this issue, that is, the Tribunal.

B. INTERNATIONAL WATER SHARING PRINCIPLES:


i.

The Doctrine of Riparian Rights is a principle of common law which says that the lower
riparian owner has the right to have the stream substantially preserved in its natural size,
flow and purity and to protection against material diversion or collection.

ii.

If pushed to its logical conclusion this principle would enable a state at the mouth of a big
river to insist that no state higher up shall make any sensible diminution in the water
which comes down the river. There may be desert areas in the upper state. Nevertheless


29

B. Premanand & Ors. v. Mohan Koikal & Ors., (2011) 4 SCC 266.

30

Harshad S. Mehta & ors. v. State of Maharastra., (2001) 8 SCC 257.

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on the application of this common law principle, a lower state can insist that the water
shall flow down the river without sensible diminution even if this means that the upper
desert areas shall forever remain desert.31
iii.

It will be pertinent at this stage also to note the true legal position about the inter-state
river water and the rights or Riparian states to the same.32 One cardinal rule, underlying
all the relations of the states to each other, is that of equality of right. Each state stands on
the same land with the rest. The action of one state reaches, through the agency of natural
laws into the territory of another state. The question of the extent and the limitation of the
rights of the two states becomes a matter of justiciable dispute between them. This
Honble Court alone may settle that dispute in such a way as will recognise the equal
rights of both and at the same time establish justice between them.33

iv.

Additionally the Doctrine of Equitable Apportionment lays down that every riparian or
basin state or other concerned entity justifying entitlement for a share is entitled to a fair
share of water of the said basin or inter-state river as the case may be. Upon the
conception of this theory, the emphasis was shifted from the Doctrine of Prior
Appropriation to Equitable Apportionment Theory.34 Hence the right of states in an
inter-state water is determined by applying the rule of equitable apportionment, each unit
getting a fair share of the water of the common river.35

v.

The Natural Water-flow Theory, also known as the territorial integrity theory is often
invoked by basin states in international water disputes and sometimes by parties in the
inter-state water disputes. According to this theory, a river is treated as a part of the
territory of the concerned state and, therefore, under this theory every lower riparian is
entitled to the natural flow of the river uninterrupted or unhampered by the upper riparian
states. In an agreement embodied in the exchange of notes in 1929 between Egypt and


31

Report of the Narmada Water Disputes Tribunal,


Vol. 1, 1978, 105, Central Water Commission, New Delhi.

32

In the matter of: Cauvery Water Disputes Tribunal, AIR 1992 SC 522.

33

State of Kansas v. State of Colorado, 206 U.S. 46 (1907).

34

State of Nebraska v. State of Wyoming., 373 U.S. 541 (1963).

35

Report of the Krishna Water Disputes Tribunal, with Decision,


Vol.1. 1973, 93, Central Water Commission, New Delhi.

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Great Britain representing Sudan, Britain conceded to Egypt the right of veto on
exclusive utilization of water by Sudan as upper riparian.
vi.

The Helsinki Rules on the Uses of the Waters of International Rivers, 1966 has
repeatedly stressed upon the Equitable Utilization Theory of water sharing and by
adopting this, provided a status and authenticity to this theory. According to this theory,
each basin state is entitled, within its territory, to a reasonable and equitable share in the
beneficial uses of water. One of the relevant factors to be considered while deciding what
is reasonable and equitable is the extent of the drainage area in the territory of each basin
state. In the Narmada Water Dispute36 and Krishna Water Dispute37, the respective
Tribunals which adjudicated the matters, applied the Equitable Utilization Theory whilst
deciding the issues.

vii.

In the present case, the petitioner state, in whose territory the majority of the river basin
lies, has not been consulted, and neither has their welfare been taken into account while
such clearance was given. It is thus contended that the clearance given was not in
accordance and was in disharmony with the above stated principles of water sharing.

C. INFRINGEMENT OF CONSTITUTIONAL PROVISIONS:


i.

Article 262 of the Constitution provides that Parliament shall be the final and ultimate
authority in regard to enacting laws that deal with water disputes between States. It was
under this Article 262 that the ISRWD Act has been enacted. The Parliament which was
authorized by the Constitution to enact such a law has done so in exercise of such
powers.38

ii.

It is the contention of the petitioners that the clearance given by the Union Government is
ultra vires the Constitution as it seeks to override or neutralize the law enacted by the
Parliament in exercise of powers conferred by Article 262 of the Constitution.


36

Report of the Narmada Water Disputes Tribunal,


Vol. 1, 1978, 105, Central Water Commission, New Delhi.

37

Report of the Krishna Water Disputes Tribunal, with Decision,


Vol.1. 1973, 93, Central Water Commission, New Delhi.

38

In the matter of: Cauvery Water Disputes Tribunal, AIR 1992 SC 522.

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iii.

The objective of the impugned action is to set at naught the powers of the Tribunal and
hence interferes with the power of the judicial functions and hence is unconstitutional.
The clearance seeks to eclipse the Tribunal constituted under the ISRWD Act, made in
virtue of Article 262 and being in conflict with Central Legislation, is void.

iv.

It has been firmly established that a harmony between the Fundamental Rights and
Directive Principles of State Policy must be maintained in all state actions.39 The right to
livelihood has also been pronounced by this Honble Court to be an integral part of the
Right to Life guaranteed under Article 21 of the Constitution.40

v.

It is the petitioners contention that the clearance granted for the furtherance of the JAL
project was given without giving due regard and in total disregard of the right to life of
the inhabitants of Mandeville who survive in Aishani waters. It is further contended that
the clearance which intends the diminution of Aishani waters to the inhabitants of
Mandeville is also against the spirit of Article 38 and Article 39 of the Constitution.

D. REASONABLE LIKELIHOOD OF BIAS:


i.

The maxim nemo judex in re sua literally means that a man should not be a judge in his
own cause. It has also come to mean that a judge must be impartial. This is known as the
rule against bias. An administrator being a part and parcel of the administrative
mechanism may imbibe an official or a policy bias which he may not be able to shed
when he acts as an adjudicator.

ii.

Bias may arise because the adjudicator may have a general interest in the subject matter
in dispute because of his association as a member or otherwise with a private body, or
with the administration in his official capacity.

iii.

Policy bias may occur when the adjudicator acts in several capacities, say, both as a judge
and a witness, or as a judge and a complainant.41

iv.

The modern concept of the rule against bias is rooted on the well-known principle that
"justice should not only be done, but should manifestly and undoubtedly be seen to be


39

Minerva Mills Ltd. & ors. v. Union of India & Ors., AIR 1980 SC 1789.

40

Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors., AIR 1986 SC 180.

41

Kamini Kumar v. West Bengal, AIR 1972 SC 2060.

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done". A man may be disqualified from sitting in a judicial capacity on one of two
grounds. First, a "direct pecuniary interest" in the subject matter, second, "bias" in favour
of one side or against the other.42
v.

The Court does not look to see if there was a real likelihood that he would, or did, in fact
favour one side at the expense of the other. The Court looks at the impression which
would be given to other people. Nevertheless there must appear to be a real likelihood of
bias. Surmise or conjecture is not enough. There must be circumstances from which a
reasonable man would think it likely or probable that the Justice, or Chairman, as the case
may be, would, or did, favour .one side unfairly at the expense of the other. The Court
will not inquire whether he did in fact, favour one side unfairly. Suffice it that reasonable
people might think he did.43

vi.

It is of the essence of administration that the Judges should be able to act impartially,
objectively and without any bias. In such cases the test is not whether in fact a bias has
affected the judgment; the test always is and must be whether a complainant could
reasonably apprehend that a bias attributable to a member of the administration might
have operated against him in the final decision of the administrator. It is in this sense that
it is often said that justice must not only be done but must also appear to be done.44

vii.

It has been established on what clearly follows from the above mentioned statements is
that in a case where there is an allegation of bias in respect of a member of an
administrative board or body is whether there is a reasonable ground for belief that he
was likely to have been biased.45 In other words whether there is substantial possibility of
bias animating the mind of the member against the aggrieved party.46

viii.

From these observations, it appears that a 'likelihood' of bias is given the meaning of
'possibility' of bias rather than 'probability'. For it is always assumed that a reasonable
man would suspect bias only on the real possibility and not on probability.


42

Blaze and Central (P.) Ltd v. Union of India and Ors., AIR 1980 Kant. 186.

43

Metropolitan Properties Co. Ltd. v. Lannon, (1968) WLR 815.

44

Manak Lal v. Dr. Prem Chand, AIR 1957 SC 425.

45

A.K. Kraipak & Ors. v. Union of India & Ors., AIR 1970 SC 150.

46

G. Sarana v. University Of Lucknow & Ors., AIR 1976 SC 2428.

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ix.

In the present case, the Union of Kano, which is currently headed by the Nudi Adami
Party (NAP) has always been promoting the use of renewable energy and the same has
been made the National Policy. Additionally, the Union of Kano has also signed a pact
with 22 countries for generation of hydel energy.

x.

It is also pertinent to note that the respondent state, that is, the State of Karak, which until
recently was headed by the Kano Adami Party (KAP), saw the ruling party being ousted
from power due to mass protests against the State Government following the drought.
The ousting of the Kano Adami Party lead to the ascension of the Nudi Adami Party to
power in the State of Karak.

xi.

From a plain perusal of the aforementioned facts, two things are clear: (a) The Nudi
Adami Party has always been a great propagator of renewable energy, and (b) The Nudi
Adami Party, upon ascension to power, was under immense sociological pressure to
appease the citizens of Karak, who were reeling from a series of violent protests.

xii.

In lieu of these circumstances, it would appear that the Nudi Adami Party which heads
the Union Government, and who is also ruling the State of Karak may have acted with
bias while granting clearance for the approval of the JAL project.

xiii.

Hence, it is the contention of the Petitioners, in the light of the aforementioned


arguments, that the clearance given for the JAL Project must be stayed.

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3. THE CONSTRUCTION OF THE AISHANI JAL PROJECT MUST BE HALTED

A.THE CONSTRUCTION OF THE AISHANI JAL PROJECT HAS VAST AND


IMMENSE ADVERSE ECOLOGICAL EFFECT AND HENCE MUST NOT BE
IMPLEMENTED:
i.

Nature shall be respected and its essentials not be impaired47 is the very first principle
of the World Charter for Nature. The construction of the dam results in immense
ecological effect as, when a part of the river flow is altered, the entire ecosystem as a
whole is affected. The basic insight of ecology is that all living things exist in interrelated systems, nothing exists in isolation. The world system is web-like and to pluck
one strand is to cause all to vibrate; whatever happens to one part has ramifications for all
the rest. Our actions are not individual but social; they reverberate throughout the whole
ecosystem.48 Environmentalists conception of the ecological balance in nature is based
on the fundamental concept that nature is "a series of complex biotic communities of
which a man is an inter-dependent part" and that it should not be given to a part to
trespass and diminish the whole.49 In The International Law Association conference, it
was stated that the best way to apportion waters of an inter-state river is to treat the entire
basin as an integrated whole and not different parts.50 When the integrity of the
ecosystem is interfered with, it results in irreversible damage to the ecosystem. Chapter
V, Article 22 of the Berlin Rules on Water Resources,51 states that States shall take all
appropriate measures to protect the ecological integrity necessary to sustain ecosystems


47

Principle 1 of the World Charter for Nature adopted by the UN General Assembly on 28th October,1982.

48

A. P. Pollution Control Board v. Prof. M.V. Nayudu & Ors., AIR 1999 SC 812.

49

Tarun Bharat Sangh Alwar v. Union of India & Ors., AIR 1992 SC 514.

50

International Law Association, New York Conference, 1958.

51

International Law Association, Berlin Rules, 2004.

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dependent on particular waters. Ecology knows no boundaries.52 Environmental effects
can have far reaching long term impact as well.
ii.

The Aishani River has a catchment area of 78,129 sq.km and this beautiful ecosystem
cannot be altered by the construction project. On the basis of catchments, the river basins
with catchment area of 20,000 sq.km and above are major river basins.53 The preservation
of the fauna and flora, some species of which are getting extinct at an alarming rate, has
been a great and urgent necessity for the survival of humanity.54 Moreover, the Aishani
River originates in the State of Karak and flows through the State of Mandeville to reach
the Great Kano Sea.55 The construction of the dam in the State of Karak affects the
ecology of the downstream riparian State of Mandeville. The downstream environment
impacts of dams are :(1) Water-logging and salinity (2) micro-climatic changes (3)
reduced water flow and deposition in river, with related impacts on aquatic eco-system,
flora and fauna (4)flash floods (5) loss of land fertility along with river (6) vector
breeding and increase in related diseases. These adverse effects have long term and
irreversible loss of quality of human life and other creatures in the region.56 Altering the
habitat characteristics can have deleterious impacts on both in-stream biota and the
associated riparian habitat.57 Habitat characteristics include bed elevation, substrate
composition and stability, in-stream roughness elements, depth, velocity, turbidity,
sediment transport, stream discharge and temperature.58

iii.

It is primarily for the Governments concerned to consider the importance of public


projects for the betterment of the conditions of living of the people on the one hand and
the necessity for preservation of social and ecological balances, avoidance of
deforestation and maintenance of purity of the atmosphere and water free from pollution


52

T. N. Godarvarman Thirumalpad v. Union of India, 2006 (10) SCALE 246.

53

Government of India, CWC, Guidelines for Preparation of River Basin Master Plan, June 2007, Ch.II-1.0.

54

Tarun Bharat Sangh Alwar v. Union of India & Ors., AIR 1992 SC 514.

State of Bihar v. Murad Ali Khan, AIR 1989 SC 1.


55

5 of the Moot Proposition.

56

N. D. Jayal & Anr v. Union of India & Ors., AIR 2004 SC 867.

57

Deepak Kumar Etc. v. State of Haryana & Ors. Etc., AIR 2012 SC 1386.

58

ibid

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on the other.59 Construction projects must not be implemented at the cost of ecological
damage.
iv.

Notification has been issued under Sec.3 of the Environment Protection Act, 1986
regarding prior environment clearance in the case of undertaking of projects and setting
up of industries including Inter State River Projects.60 There has been no adherence to the
said notification61 by the State of Karak and also there is no clearance given by the
Ministry of Environment and Forests.

v.

Ecosystems means a dynamic complex of plant, animal and micro-organism


communities and their non-living environment interacting as a functional unit.62 What is
most important is that the flora and fauna must be protected in their natural habitats.
Article 8(d) of CBD provides that Each Contracting Party shall, as far as possible and as
appropriate: Promote the protection of ecosystems, natural habitats and the maintenance
of viable populations of species in natural surroundings.63 The Parliament passed The
Wild Life (Protection) Act 53 of 1972 to provide for the protection of wild animals and
birds with a view to ensuring the ecological and environmental security of the
country.64A"habitat" includes land, water or vegetation which is the natural home of any
wild animal65 and "animal" includes amphibians, birds, mammals and reptiles and their
young, and also includes, in the cases of birds and reptiles, their eggs.66 In such a wide
ambit the habitat of the fauna must not be harmed and the dam construction should be
halted in order to uphold the nature of the ecosystem and to protect the wide variety of
flora and fauna and exquisite birds in their natural habitat.


59

Dahanu Taluka Environment Protection Group v. Bombay Suburban Electricity Supply Co. Ltd.,
(1991) 2 SCC 539.

60

Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751.

61

Environment Impact Assesment Notification,1994 under Sec.3 of the EPA,1986.

62

Article 2 of CBD, 1993.

63

Convention on Biological Diversity, Earth Summit, Rio de Janerio, 29th December, 1993.

64

Association for Environmental Protection v. State of Kerala & Ors., (2013) 7 SCC 226.

65

Sec.2 (15), The Wildlife (Protection) Act, 1972.

66

Sec.2 (1), The Wildlife (Protection) Act, 1972.

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vi.

The "Precautionary Principle"67 means: (i) Environmental measures - by the State


Government and the statutory authorities - must anticipate, prevent and attack the causes
of environmental degradation.68 This principle has been emphasized in the World Charter
for Nature69 and reiterated in the Rio Conference, 1992. Article 23 of the Berlin rules on
Water Resources also mentions the Precautionary Approach. It is mandatory for the
Government to anticipate, prevent and attack the causes of environmental degradation70
before any harm is done. The project not only has immediate direct effects but may also
result in gradual destruction of ecology. The Precautionary Principle requires anticipatory
action to prevent harm. The harm can be prevented even on a reasonable suspicion. It is
not always necessary that there should be direct evidence of harm to the environment.71
Environmental protection should not only aim at protecting health, property and
economic interest but also protect the environment for its own sake. Precautionary duties
must not only be triggered by the suspicion of concrete danger but also by (Justified)
concern or risk potential.72 Conservation of biological diversity is a common concern of
human kind.73A construction project is likely to cause irreversible damage to the habitat
of the flora and fauna in the Wildlife Sanctuary and therefore must not be allowed to
continue.

vii.

Sustainable development is the development that meets the needs of the present without
compromising the ability of future generations to meet their own needs.74 In the UN
Conference on Human Environment-Stockholm Declaration, 1972, the Magna Carta of
our Environment75, Natural resources of the Earth, including air, water, land, flora and
fauna should be protected for present and future generations.76 This is the principle of


67

Recommended by the UNEP Governing Council (1989).

68

Vellore Citizens Welfare Forum v. Union of India & Ors., AIR 1996 SC 2715.

69

World Charter for Nature, 1982, Principle 11; Rio Conference, 1992.

70

M. C. Mehta v. Union of India, (1997) 3 SCC 715.

71

M. C. Mehta v. Union of India, AIR 2004 SC 4016.

72

A. P. Pollution Control Board v. Prof. M. V. Nayudu & Ors., AIR 1999 SC 812.

73

CBD, Rio Summit, 1992.

74

(World Commission on Economic Development [WCED], 1987 : 43)- Brundtland report.

75

Essar Oil Ltd. v. Halar Utkarsh Samiti & Ors., AIR 2004 SC 1350.

76

Principles 1 & 2 of the Stockholm Declaration, 1972.

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inter-generational equity which provides that nature does not belong to one generation
alone, it must be preserved for the future as well. The construction of the AISHANI JAL
project will affect the right of the future generations to enjoy a beautiful and unaltered
ecosystem and also deprive them of the originality of the ecosystem subject to natural
cyclic changes. The obligation to preserve mainly relates to freshwater ecosystems in
their original condition. While similar to that of protection, [preserve] applies in
particular to freshwater ecosystems that are in pristine or unspoiled condition. It requires
that these ecosystems must be protected in such a way as to maintain them as much as
possible in their natural state.77
viii.

The principle to be applied while dealing with matters involving the environment is ecocentrism and not anthropocentrism. Under the anthropocentrism approach, environment
is only protected as a consequence of and to the extent needed to protect human wellbeing. On the other hand, eco-centric approach to environment stresses the moral
imperatives to respect intrinsic value, inter dependence and integrity of all forms of life.
Eco-centrism supports the protection of all life forms, not just those which are of value to
humans or their needs and underlines the fact that humans are just one among the various
life forms on Earth.78 The implementation of the project is disregarding the habitat and
life line of all other living creatures in the wild life sanctuary and also an interruption on
the rich ecosystem. The Universe along with its creatures belong to the Lord. No
creature is superior to any other. Human beings should not be above nature. Let no one
species encroach over the rights and privileges of other species.79 Therefore, the needs of
man must not be placed above all other living creatures.

ix.

Since the construction of the project started, there has been removal of sand from the
river bed which has led to new developments in the river course. Sand mining on either
side of the rivers, upstream or in-stream is one of the causes for environmental
degradation and also a threat to the biodiversity.80 Removal of sand may have serious
environmental impact on ephemeral, seasonal and perennial rivers and river beds. Further


77

Report of the International Law Commission on the Work of its Forty-Sixth Session, Doc. A/49/10 (1994), p.282.

78

T. N. Godarvarman Tirumalpad v. Union of India & Ors., (2013) 8 SCC 198.

79

Supra. 20 while quoting the Isha Upanishad.

80

Deepak Kumar Etc. v. State of Haryana & Ors. Etc. AIR 2012 SC 1386.

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it may also lead to bed degradation and sedimentation having a negative effect on aquatic
life.81 The river changing its course of flow is a natural phenomenon, but when mans
activities intervene, the natural cyclic effects are harmed. The river has its own course
and it follows that course. If that course is sought to be regulated by human effort, the
river may not accept it.82The Precautionary Principle is based on scientific uncertainty.83
There is no certainty that the State of Mandeville will not experience floods or severe
drought conditions as the result of nature as well as due to the implementation of the
construction project. Hence, it is contented that the construction project must be halted on
ecological grounds and environmental concerns.

B.THE CONSTRUCTION OF THE DAM IS IN VIOLATION OF THE RIGHTS OF


PEOPLE IN STATE OF MANDEVILLE:
i.

Water is the most important of the elements of Nature.84 Enjoyment of Right to Life
includes within itself, the protection and preservation of environment and ecological
balance. It is important to note that material resources of the community like forests,
tanks, ponds, hillock, mountain, etc. are natures bounty. They maintain delicate
ecological balance.85 The environment is a broad spectrum and brings within its ambit
hygienic atmosphere and ecological balance86. Firstly, the implementation of the
AISHANI JAL Project affects the ecology of the State which thereby encroaches on the
right of the inhabitants of the State of Mandeville.

ii.

Every person enjoys the right to a wholesome environment, which is a part of the right to
life.87 Large quantities of standing water provide fertile breeding ground for diseases


81

Supra. 8.

82

Justice T.S.Doabia, Environment & Pollution Laws in India, 2nd Ed 2010,Vol.1,p.837

83

Vellore Citizens Welfare Forum v. Union of India & Ors. AIR 1996 SC 2715.

84

M. C. Mehta v. Union of India, AIR 1988 SC 1037.


Hinch Lal Tiwari v. Kamala Devi & Ors AIR 2001 SC 3215.

85

M. C. Mehta v. Union of India & Ors. AIR 2001 SC 1948.

86

T.N.Godarvarman Thirumalpad v. Union of India. (2002) 10 SCC 606.


Residents for Sanjay Nagar v. State of Rajasthan, AIR 2004 Raj. 116.

87

Subash Kumar v. State of Bihar. (1991) 1 SCC 598.

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carrying vector. River valley projects have been cited as a cause to the spread of many
epidemics.88Any threat to the ecology can lead to the violation of the right of enjoyment
of healthy life guaranteed under Article 2189 of the Constitution of Kano. The AISHANI
JAL project is likely to alter the ecosystem as it has adverse ecological effects on the
habitat of the Wildlife and also affects the right of normal enjoyment of the river water
and also the ecology of the inhabitants. Therefore, it is contended that the project must be
halted.
iii.

From time immemorial, people across the world have always made efforts to preserve
and protect the natural resources like air, water, plants, flora and fauna.90 Our legal
system, based on English Common Law-includes the public trust doctrine as part of its
Jurisprudence. The State is the trustee of all Natural Resources, which are by nature
meant for public use and enjoyment.91 In view of this doctrine, the State has a
Constitutional obligation under Article 48A of the Constitution of Kano. Article 48A
provides that the State shall endeavor to protect and improve the environment and
safeguard the forests and wildlife of the country. Though it is a Directive Principle of
State Policy, it is not only enforceable at the behest of a citizen, but a Constitutional
obligation of the State to be performed on its own, without waiting for a citizen to
demand for it.92 The duty under Article 48A can be enforced on the basis of Article 21.93

iv.

The State of Mandeville, situated in the East Zone of the Union of Kano94 is an ideal
place for agricultural activities. The construction of the project will thus affect the
agricultural and irrigation pattern of the inhabitants of Mandeville as well. No State can
on its own carry on the affairs within its territory, particularly when such projects may
have adverse effects on other States, particularly in respect of an Inter-State river where


88

M.C.Mehta v. Union of India, (2001) 3 SCC 756.

89

T. N. Godarvarman Thirumalpad v. Union of India, AIR 2005 SC 4256.

90

Association for Environmental Protection v. State of Kerala & Ors. (2013) 7 SCC 226.

91

M. C. Mehta v. Kamal Nath, (1997) 1 SCC 388.

92

Juhi Kumari v. State of Bihar, 2011 (59) BLJR 2662.

93

Satish v. State of Uttar Pradesh, (1992) Supp 2 SCC 94;


Tarun Bharat Singh Alwar v. Union of India, AIR 1992 SC 514.

94

4 of the Moot Proposition.

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each riparian State and its inhabitants through which the river flows have its right.95 The
citizens views and rights must be given due consideration while implementing such a
project. Environment issues are best handled with the participation of all concerned
citizens, at the relevant level.96 Besides, the citizens who have been made responsible to
protect the environment have a right to know.97 Considering the geographical proximity
between the two States and the principle of equitable apportionment, it is contended that
the State of Mandeville feels aggrieved by the proposal by the State of Karak , for 7.5
TMC of water to solve the issues of Western Karak while 3.5 TMC of water will actually
suffice.
v.

The Wildlife Protection Act allows permission for tourism in a sanctuary98 and the same
Act also provides that No person shall destroy, exploit or remove any wildlife from a
sanctuary or destroy or damage the habitat of any wild animal or deprive any wild animal
or its habitat within such sanctuary99 The State of Mandeville has a sanctuary with
huge biodiversity and exquisite birds and varieties of flora and fauna alongside the State
of Karak and has thereby succeeded to make tourism as its main source of income.100 The
damage to ecology has chain effects and eventually will cause the economy of State of
Mandeville to decline.

vi.

Therefore, in regard to the afore mentioned issues, it is contended that the construction of
the AISHANI JAL project must be halted as it infringes on the rights of the people of
Mandeville and also has immense adverse effects on the ecology.


95

State of Andhra Pradesh v. State of Karnataka, AIR 2001 SC 1560.

96

Principle 10, Rio Declaration, (1992).

97

Essar Oil Ltd. v. Haldar Utkarsh Samiti, AIR 2004 SC 1834.

98

Sec. 28 (d), Ch. IV WPA, 1972.

99

Sec.29, Ch. IV, WPA, 1972.

100

4 of Moot Proposition.

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PRAYER

Wherefore it is humbly prayed, in the light of issues raised, arguments advanced and authorities
cited, that this Honble Court may be pleased to:
1. Direct the Water Tribunal to entertain the application.
2. Stay the clearance given for the further implementation of the AISHANI JAL Project.
3. Pass an order of injunction against the construction of the dam.
And pass any other Order or Direction that it may deem fit in the light of Equity, Justice and
Good Conscience for which the counsel may forever pray.

Sd/(Counsel for the Petitioner)

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APPENDIX

ABBREVIATIONS USED:

Paragraph

Paragraphs

&

And

AIR

All India Reporter

Art.

Article

BLJR

Bihar Law Journal

CBD

Convention on Biological Diversity

Ch.

Chapter

Co.

Company

Doc.

Document

Ed.

Edition

EPA

Environment Protection Act

MoEF

Ministry of Environment and Forest

Ors.

Others

p.

Page no.

pp.

Pages

Raj.

Rajasthan

SC

Supreme Court

SCC

Supreme Court Cases

Sec.

Section

Supp.

Supplementary

TMC

Thousand Million Cubic

U.S

United States
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UN

United Nations

WCED

World Commission on Economic Development

WPA

Wildlife Protection Act

(P) Ltd.

Private Limited

CWC

Central Water Commission

Vol.

Volume

ISRWD Act

Inter State River Water Dispute Act

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EXHIBITS

CONSTITUTIONAL PROVISIONS

Art.136: Special leave to appeal by the Supreme Court


(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

Art.262: Adjudication of disputes relating to waters of inter State rivers or river valleys
(1) Parliament may by law provide for the adjudication of any dispute or complaint with respect
to the use, distribution or control of the waters of, or in, any inter State river or river valley
(2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither
the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute
or complaint as is referred to in clause ( 1 ).

Art.131: Original jurisdiction of the Supreme Court


Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any
other court, have original jurisdiction in any dispute
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side and one or more other
States on the other; or
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(c) between two or more States, if and in so far as the dispute involves any question (whether of
law or fact) on which the existence or extent of a legal right depends: Provided that the said
jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant,
engagements, and or other similar instrument which, having been entered into or executed before
the commencement of this Constitution, continues in operation after such commencement, or
which provides that the said jurisdiction shall not extend to such a dispute.

Seventh Schedule,List I-entry 56: Regulation and development of inter-State rivers and river
valleys to the extent to which such regulation and development under the control of the Union is
declared by Parliament by law to be expedient in the public interest.

Art.21: Protection of life and personal liberty


No person shall be deprived of his life or personal liberty except according to procedure
established by law.

Art.48A: Protection and improvement of environment and safeguarding of forests and wild life
The State shall endeavour to protect and improve the environment and to safeguard the forests
and wild life of the country.

ISRWD Act,1956

Sec.2: Definitions. In this Act, unless the context otherwise requires,-(a) " prescribed" means prescribed by rules made under this Act;
(b) " Tribunal" means a Water Disputes Tribunal constituted under section 4;
(c) " water dispute" means any dispute or difference between two or more State Governments
with respect to-(i) the use, distribution or control of the waters of, or in, any inter- State river or river valley; or
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(ii) the interpretation of the terms of any agreement relating to the use, distribution or control of
such waters or the implementation of such agreement; or
(iii) the levy of any water rate in contravention of the prohibition contained in section 7.

Sec.3: Complaints by State Governments as to water disputes.


If it appears to the Government of any State that a water dispute with the Government of another
State has arisen or is likely to arise by reason of the fact that the interests of the State, or of any
of the inhabitants thereof, in the waters of an inter- State river or river valley have been, or are
likely to be, affected prejudicially by-(a) any executive action or legislation taken or passed, or proposed to be taken or passed, by the
other State; or
(b) the failure of the other State or any authority therein to exercise any of their powers with
respect to the use, distribution or control of such waters; or
(c) the failure of the other State to implement the terms of any agreement relating to the use,
distribution or control of such waters, the State Government may, in such form and manner as
may be prescribed, request the Central Government to refer the water dispute to a Tribunal for
adjudication.
Sec.11: Bar of jurisdiction of Supreme Court and other courts.
Notwithstanding anything contained in any other law, neither the Supreme Court nor any other
court shall have or exercise jurisdiction in respect of any water dispute which may be referred to
a Tribunal under this Act.

THE WILDLIFE PROTECTION ACT,1972:

Sec.2(15):"habitat" includes land, water or vegetation which is the natural home of any wild
animal.

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Sec.2(1):"animal" includes amphibians, birds, mammals and reptiles and their young, and also
includes, in the cases of birds and reptiles, their eggs.

INTERNATIONAL AUTHORITIES

WORLD CHARTER FOR NATURE, 1982:


Principle 1: Nature shall be respected and its essentials not be impaired.

Principle 11: . Activities which might have an impact on nature shall be controlled, and the best
available technologies that minimize significant risks to nature or other adverse effects shall be
used; in particular:
a) Activities which are likely to cause irreversible damage to nature shall be avoided,
b) Activities which are likely to pose a significant risk to nature shall be preceded by an
exhaustive examination their proponents shall demonstrate that expected benefits outweigh
potential damage to nature, and where potential adverse effects are not fully understood the
activities should not proceed,
c) Activities which may disturb nature shall be preceded by assessment of the consequences, and
environmental impact studies of development project shall be conducted sufficiently in advance,
and if they are to be undertaken, such activities shall be planned and carried out so as to
minimize potential adverse effects,
d) Agriculture, grazing, forestry and fisheries practices shall be adapted to the natural
characteristics and constraints of given areas,
e) Areas degraded by human activities shall be rehabilitated for purposes in accord with their
natural potential and compatible with the well-being of affected populations

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BERLIN RULES ON WATER RESOURCES, 2004:

Chapter V, Article 22 :States shall take all appropriate measures to protect the ecological
integrity necessary to sustain ecosystems dependent on particular waters.
Article 23 : The Precautionary Approach: 1. In implementing obligations under this Chapter,
States shall apply the precautionary approach.
2. States shall take all appropriate measures to prevent, eliminate, reduce, or control harm to the
aquatic environment when there is a serious risk of significant adverse effect on or to the
sustainable use of waters even without conclusive proof of a causal relation between an act or
omission and its expected effects.
Article 30: Participation in Impact Assessments in Another State
A person who suffers or is under a serious threat of suffering damage from programs, projects,
or activities relating to the waters in another State shall be entitled in the other State to the
same extent and on the same conditions as a person in that State to participate in an
environmental impact assessment procedure.

CONVENTION ON BIOLOGICAL DIVERSITY,1993:

Article 8(d): Each Contracting Party shall, as far as possible and as appropriate: Promote the
protection of ecosystems, natural habitats and the maintenance of viable populations of species in
natural surroundings.

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EARTH SUMMIT,RIO DECLARATION,1992:
Principle 10: Environmental issues are best handled with participation of all concerned citizens,
at the relevant level. At the national level, each individual shall have appropriate access to
information concerning the environment that is held by public authorities, including information
on hazardous materials and activities in their communities, and the opportunity to participate in
decision-making processes. States shall facilitate and encourage public awareness and
participation by making information widely available. Effective access to judicial and
administrative proceedings, including redress and remedy, shall be provided.

STOCKHOLM DECLARATION,1972
Principle 2: The natural resources of the earth, including the air, water, land, flora and fauna and
especially representative samples of natural ecosystems, must be safeguarded for the benefit of
present and future generations through careful planning or management, as appropriate.
Principle 4: Man has a special responsibility to safeguard and wisely manage the heritage of
wildlife and its habitat, which are now gravely imperilled by a combination of adverse factors.
Nature conservation, including wildlife, must therefore receive importance in planning for
economic development.

BRUNDTLAND REPORT, OUR COMMON FUTURE,1987:


SUSTAINABLE DEVELOPMENT: Development that meets the needs of the present without
compromising the ability of the future generations to meet their own needs".

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