Professional Documents
Culture Documents
STATE OF MANDEVILLEPETITIONER
V.
STATE OF KARAKRESPONDENT
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
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
BOOKS REFERRED
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
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.
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
STATEMENT OF ISSUES
10
11
12
13
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
14
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.
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.
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.
15
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
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,
Jaswant Sugar Mills Ltd. Meerut v. Lakshmichand & Ors., AIR 1963 SC 677.
16
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,
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,
Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala & Ors., AIR 1961 SC 1669.
16
17
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.
18
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.
19
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
25
In the matter of: Cauvery Water Disputes Tribunal, AIR 1992 SC 522.
20
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.
26
27
28
Gurudevdatta VKSSS Maryadit & ors. v. State of Maharashtra & Ors., (2001) 4 SCC 534.
21
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.
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.
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
22
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
32
In the matter of: Cauvery Water Disputes Tribunal, AIR 1992 SC 522.
33
34
35
23
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.
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
37
38
In the matter of: Cauvery Water Disputes Tribunal, AIR 1992 SC 522.
24
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.
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
25
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
44
45
A.K. Kraipak & Ors. v. Union of India & Ors., AIR 1970 SC 150.
46
26
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.
27
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
51
28
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.
52
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.
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
29
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.
59
Dahanu Taluka Environment Protection Group v. Bombay Suburban Electricity Supply Co. Ltd.,
(1991) 2 SCC 539.
60
61
62
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
66
30
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
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
71
72
A. P. Pollution Control Board v. Prof. M. V. Nayudu & Ors., AIR 1999 SC 812.
73
74
75
Essar Oil Ltd. v. Halar Utkarsh Samiti & Ors., AIR 2004 SC 1350.
76
31
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
79
80
Deepak Kumar Etc. v. State of Haryana & Ors. Etc. AIR 2012 SC 1386.
32
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
83
Vellore Citizens Welfare Forum v. Union of India & Ors. AIR 1996 SC 2715.
84
85
86
87
33
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
89
90
Association for Environmental Protection v. State of Kerala & Ors. (2013) 7 SCC 226.
91
92
93
94
34
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
96
97
98
99
100
4 of Moot Proposition.
35
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.
36
APPENDIX
ABBREVIATIONS USED:
Paragraph
Paragraphs
&
And
AIR
Art.
Article
BLJR
CBD
Ch.
Chapter
Co.
Company
Doc.
Document
Ed.
Edition
EPA
MoEF
Ors.
Others
p.
Page no.
pp.
Pages
Raj.
Rajasthan
SC
Supreme Court
SCC
Sec.
Section
Supp.
Supplementary
TMC
U.S
United States
MEMORIAL ON BEHALF OF PETITIONER
37
United Nations
WCED
WPA
(P) Ltd.
Private Limited
CWC
Vol.
Volume
ISRWD Act
38
EXHIBITS
CONSTITUTIONAL PROVISIONS
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 ).
39
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.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
MEMORIAL ON BEHALF OF PETITIONER
40
Sec.2(15):"habitat" includes land, water or vegetation which is the natural home of any wild
animal.
41
INTERNATIONAL AUTHORITIES
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
42
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.
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.
43
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.
44