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TEAM CODE: 21P

9TH PRO B ONO ENVIRO NATIONAL MOOT COURT COMPETITION, 2015

BEFORE

THE HONOURABLE SUPREME COURT OF MANAS TIRTH

UNDER ARTICLE 136 OF THE CONSTITUTION OF MANAS TIRTH


M/S. MARVOLO MINING COMPANY .......P ETITIONER 1
CENTRAL GOVERNMENT OF REPUBLIC OF MANAS TIRTH...........PETITIONER 2

V.

MR. PERCIVAL BRIAN ....RESPONDENT 1


STATE OF EAST PRADESH, REPRESENTED BY S.E.I.A.A ........RESPONDENT 2

MEMORIAL FOR THE PETITIONERS

-Table of Contents -

- Memorandum for the Petitioners-

TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................................ I
LIST OF ABBREVIATIONS ................................................................................................ II
INDEX OF AUTHORITIES ................................................................................................ III
STATEMENT OF JURISDICTION ................................................................................ VIII
STATEMENT OF FACTS ................................................................................................... IX
ISSUES RAISED..................................................................................................................... X
SUMMARY OF ARGUMENTS .......................................................................................... XI
ARGUMENTS ADVANCED .................................................................................................. 1
1.

2.

Whether the National Green Tribunal is vested with suo motu powers? ............... 1
1.1.

That the NGT is strictly bound by the National Green Tribunal Act, 2010 ......... 1

1.2.

That it was not the intention of legislature to grant it suo motu powers. ............. 2

1.3.

That NGTs powers are not the same as that of the High Courts. ....................... 2

Whether the New Mining Deal, 2015 permitting mining in the Area was valid

and whether mining in the Area was against environmental safety? ................................. 3
2.1.

That the NMD was framed in accordance with statutory provisions and was not

arbitrarily............................................................................................................................. 3
2.2.

That NMD authorizing mining in the Area is not violative of right to wholesome

environment and thus doesnt violate Article 21. .............................................................. 4


2.3.
3.

That the NMD is not violative of the rights of tribal people living in the area .... 7

Whether there has been a criminal violation of the mining license by Marvolo

Mining Company? ................................................................................................................. 10


3.1.

That this court should refrain from judicial intervention and not initiate

criminal proceedings in the present case ......................................................................... 10


3.2.

That there is no evidence on record to suggest criminal violations on part of

Marvolo.............................................................................................................................. 13
3.3.

That the alleged acts do not constitute criminal offences and thus no criminal

case shall be initiated ........................................................................................................ 14


3.4.

That the allege violations are mere contractual violations and not criminal

violations............................................................................................................................ 20
PRAYER ................................................................................................................................. 21

I|Page

-List of Abbreviations -

- Memorandum for the Petitioners-

LIST OF ABBREVIATIONS
1. / S.

Section

2.

Paragraph

3. AIR

All India Reporter

4. Air Act

Air (Prevention and Control of Pollution) Act, 1981

5. Area

Area of East Pradesh, in the region of the Burrow where mining


activities took place.

6. Art.

Article

7. Bom.

Bombay

8. Cal.

Calcutta

9. cl.

Clause

10. CrPC

Code of Criminal Procedure, 1973

11. E.P.A.

Environment Protection Act, 1986

12. EIA

Environment Impact Assessment

13. HC

High Court

14. IPC

Indian Penal Code, 1860

15. Marvolo

M/s. Marvolo Mining Company Ltd.

16. Mining Project

Mining done by Marvolo

17. MMDR Act

Mines and Minerals (Development and Regulation) Act, 1957

18. MoEF

Ministry of Environment and Forests

19. NGT

National Green Tribunal

20. NGT Act

National Green Tribunal Act, 2010

21. NMD

New Mining Deal, 2015

22. PCB

Pollution Control Board

23. PESA

Panchayats (Extension to Scheduled Areas) Act, 1996

24. S.E.I.A.A.

State Environment Impact Assessment Association

25. SC

Supreme Court

26. SCC

Supreme Court Cases

27. SLP

Special Leave Petition

28. U.O.I.

Union of India

29. Water Act

Water (Prevention and Control of Pollution) Act, 1974

II | P a g e

-Index of Authorities-

- Memorandum for the Petitioners-

INDEX OF AUTHORITIES
STATUTES
1. The Constitution of India, 1950.
2. National Green Tribunal Act, 2010.
3. The Panchayats (Extension to Schedules Areas) Act, 1996.
4. Mines and Minerals (Development and Regulation) Act, 1957.
5. Air (Prevention and Control of Pollution) Act, 1981.
6. Water (Prevention and Control of Pollution) Act, 1974.
7. Environment Impact Assessment Notification, 2006.
8. National Green Tribunal (Practice and Procedure) Rules, 2011.
9. Indian Penal Code, 1860.
10. Code of Criminal Procedure, 1973.
11. The Forest (Conservation) Act, 1980.
12. Indian Forests Act, 1927.
13. The Wildlife (Protection) Act, 1972.
CASES
A.I.I.M.S. Employees Union v. Union of India, (1996) 11 S.C.C. 582. .................................. 12
Abdul Basit v. Mohd. Abdul Kadir Choudhary, (2014) 10 S.C.C. 754...................................... 1
Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh and Ors., (2011) 5 S.C.C 29.
................................................................................................................................................ 7
Amit Maru v. Secretary, Ministry of Environment and Forests, 2014 S.C.C. OnLine N.G.T.
6972........................................................................................................................................ 2
Anuj Garg v. Hotel Association of India, (2008) 3 S.C.C. 1. .................................................... 9
Ashok Kumar Gupta v. State of U.P., (1997) 5 S.C.C. 201. ...................................................... 6
Ashok Kumar Pandey v. State of West Bengal, (2004) 3 S.C.C. 349. ..................................... 11
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223. .. 3
Atherton West & Co. Ltd. v. Suti Mills Mazdoor Union, A.I.R. 1953 S.C. 241. ....................... 1
Avtar Singh v. State of Punjab, A.I.R. 1965 S.C. 666. ............................................................ 19
B. Singh v. Union of India, (2004) 3 S.C.C. 363. .................................................................... 13
B.A.L.C.O. Employees Union v. Union of India, (2002) 2 S.C.C. 333. ................................. 6, 7
Babulal v. Aditya Birla, 1986 (1) Crimes 248. .................................................................. 17, 18
III | P a g e

-Index of Authorities-

- Memorandum for the Petitioners-

Bandhua Mukti Morcha v. Union of India, (1984) 3 S.C.C. 161............................................. 18


Bangalore Municipal Trust v. B.S. Muddappa, (1991) 4 S.C.C. 54. ....................................... 10
Banwaslseva Ashram v. State of U.P., A.I.R. 1987 S.C. 374. ................................................... 8
Belmarks Metal Works, Podichery v. Member Secy., Pondichery Pollution Control
Committee, 2014 S.C.C. OnLine Mad. 844. .......................................................................... 8
C.P.M.S. Samti v. State Of U.P., (1990) 4 S.C.C. 449. ............................................................ 10
Cantt. Board v. Mahindra Owen Ltd., A.I.R. 1986 S.C. 1114. ................................................. 7
Central Areca Nut & Cocoa Marketing & Processing Coop. Ltd. v. State of Karnataka,
(1997) 8 S.C.C. 31. ................................................................................................................ 5
Centre for Environment and Food Security v. Union of India, Writ Petition (Civil) No. 645 of
2007........................................................................................................................................ 9
Centre for Public Interest Litigation v. Union of India, (2012) 3 S.C.C. 1. ............................ 18
Charles J. in Reg. v. Miles, 24, Q.B.D. 423. ............................................................................ 19
Chemtura Corp. v. Government of Canada, 2010 S.C.C. OnLine P.C.A. 1. ............................ 5
Court on its own motion v. Union of India, 2012 (12) S.C.A.L.E. 307. .................................... 7
Delhi Science Forum v. Union of India, (1996) 2 S.C.C. 405. .................................................. 4
Delhi Transport Corporation v. DTC Mazdoor Congress, A.I.R. 1991 S.C. 101. ................... 3
Dental Council of India v. Hari Prakash, (2001) 8 S.C.C. 61................................................... 2
Divine Retreat Centre v. State of Kerala, (2008) 3 S.C.C. 542. .............................................. 11
Election Commission of India v. Dr. Subramaniam Swamy, (1996) 4 S.C.C. 104.................... 3
Empathy v. C.B.I., 2009 S.C.C. OnLine Cal. 469. ................................................................... 13
Express Newspaper Ltd. v. Union of India, A.I.R. 1986 S.C. 872. ....................................... 3, 8
G. Sundarrajan v. Union of India, (2013) 6 S.C.C. 620. ....................................................... 4, 6
Goa Foundation and Others v. State of Goa and Others, 2001 (3) Bom. C.R. 813.................. 3
Govt. Of Andhra Pradesh and Ors. v. Obulapuram Mining Company PVT. Ltd. and Ors.
(2011) 12 S.C.C. 491. .......................................................................................................... 20
Gurpal Singh v. State of Punjab, (2005) 5 S.C.C. 136. ........................................................... 11
Hinch Lal Tiwari v. Kamala Devi, (2001) 6 S.C.C. 496.......................................................... 10
Hiralal Bonka and Ors. v. P.S. Bose and Ors., 1993 (2 C.H.N.) 15 : 1994 Tax. L.R. 712. .... 19
Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra, (2007) 14 S.C.C. 281. ........................ 13
Housing Development Infrastructure Ltd. v. State of Maharashtra, 2015 S.C.C. OnLine Bom.
3584........................................................................................................................................ 7
ICI India Ltd. and Anr. v. State of Orissa and Ors., (2007) 8 S.C.C. 629............................... 16
Institute of Chartered Accountants of India v. Price Waterhouse, (1997) 6 S.C.C. 312. .......... 2
IV | P a g e

-Index of Authorities-

- Memorandum for the Petitioners-

Janata Dal v. H.S. Chowdhary, (1992) 4 S.C.C. 305. ............................................................. 11


Joseph M. Puthussery v. T.S. John, (2011) 1 S.C.C. 503. ....................................................... 17
K.R. Srinivas v. R.M. Premchand, (1994) 6 S.C.C. 620. ......................................................... 11
Kasturi Lal Lakshmi Reddy v. State of Jammu & Kashmir, A.I.R. 1980 S.C. 1992.................. 7
Khaitan (I) Ltd v Union Of India, A.I.R. 2000 Cal. 1. ............................................................. 14
Kharak Singh v. State of U.P., A.I.R. 1963 S.C. 1295. ............................................................. 7
Kunga Nima Lepcha v. State of Sikkim, (2010) 4 S.C.C. 513.................................................. 11
L. Chandra Kumar v. Union of India, A.I.R. 1997 S.C. 1125. .................................................. 2
Lafarge Umian v. Union of India, (2011) 7 S.C.C. 338. ........................................................... 4
Laxmi Raj Shetty v. State of T.N., (1988) 3 S.C.C. 319 ..................................................... 13, 18
M.C. Mehta v. Kamal Nath and Ors., (1997) 1 S.C.C. 388. .................................................... 18
M.C. Mehta v. Kamal Nath, (2000) 6 S.C.C. 213 .................................................................... 15
M.C. Mehta v. State of Tamil Nadu and Ors., (1991) 1 S.C.C. 283. ....................................... 10
M.C. Mehta v. Union of India, (2004) 12 S.C.C. 118. ............................................................. 15
M.C. Mehta v. Union of India, (2009) 6 S.C.C. 142 ................................................................ 20
M.M. Pathak v. Union of India, A.I.R. 1978 S.C. 803. ........................................................... 21
M.S. Ahlawat v. State of Haryana, (2000) 1 S.C.C. 278.......................................................... 20
Mahesh Chandra v. Regional Manager, U.P. Financial Corpn, A.I.R. 1993 S.C. 935. ........... 8
Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597. .................................................... 3, 8
Manohar Joshi v. State of Maharashtra, (2012) 3 S.C.C. 619. ............................................... 12
Maqbool Hussain v. State of Bombay A.I.R. 1953 S.C. 325. .................................................. 19
Narendra Kumar Chandla v. State of Haryana, (1994) 4 S.C.C. 460. ...................................... 9
Narmada Bachao Andolan v. Union of India, (2000) 10 S.C.C. 664: A.I.R. 2000 S.C. 3751.
....................................................................................................................................... .5, 8, 9
National Council for Civil Liberties v. Union of India, (2007) 6 S.C.C. 506.......................... 12
Naubat Rai v. Union of India, A.I.R. 1953 Punj. 137. ............................................................. 13
O.P. Gupta v. Rattan Singh, (1964) 1 S.C.R. 259. .................................................................... 1
Olga Tellis v. Bombay Municipal Corporation, (1985) 3 S.C.C. 545. ...................................... 9
Om Prakash Dhanuka v. The State of Bihar, Criminal Miscellaneous No. 55763 of 2006. .. 18,
19
Orissa Mining Corpn. Ltd. v. Ministry of Environment & Forest, (2013) 6 S.C.C. 476. ........ 20
P. Seshadri v. S. Mangati Gopal Reddy, (2011) 5 S.C.C. 484................................................. 11
Paardarshita Public Welfare Foundation v. Union of India and Ors., A.I.R. 2010 Del. 82. . 12

V|Page

-Index of Authorities-

- Memorandum for the Petitioners-

Paramjeet Singh Kalsi v. Ministry of Environment and Forest, 2015 S.C.C. OnLine N.G.T.
109........................................................................................................................................ 17
Peerless General Finance and Investment Co. v. Reserve Bank of India, (1992) 2 S.C.C. 343.
................................................................................................................................................ 7
Premium Granites v. State of T.N., (1994) 2 S.C.C. 691. .......................................................... 6
Quamarul Islam v. S.K. Kanta, 1994 Supp. (3) S.C.C. 5: A.I.R. 1994 S.C. 1733............. 13, 14
Rameshwar Prasad v. Union of India, (2006) 2 S.C.C. 1.......................................................... 4
Rashmi Rekha Thatoi v. State of Orissa, (2012) 5 S.C.C. 690. ................................................. 1
Ravinder Kumar Sharma v. State of Assam, (1999) 7 S.C.C. 435. .......................................... 13
Reliance Infocom Ltd. v. Chemanchery Grama Panchayat, A.I.R. 2007 Ker. 33. .................... 6
Research Foundation for Science Technology and Natural Resource Policy v. Union of India
and Others, A.I.R. 2007 S.C. (Supp.) 852. ............................................................................ 8
Rohit Pandey v. Union of India, (2005) 13 S.C.C. 702. .......................................................... 13
Rural Litigation and Entitlement Kendra v. State of U.P. (1985) 2 S.C.C. 431: A.I.R. 1985
S.C. 652............................................................................................................................ 6, 17
S.K. Kanta v. Quamarul Islam and Others, (2005) 11 S.C.C. 507. ......................................... 11
Sachidanand Pandey and Anr. v. State of West Bengal and Ors., (1987) 2 S.C.C. 295: A.I.R.
1987 S.C. 1109................................................................................................................... 6, 7
Santosh Mittal v. State of Rajasthan, 2014 S.C.C. OnLine N.G.T. 2841. ............................... 14
Shamlal v. State Election Commissioner, A.I.R. 197 P. & H. 164. ........................................... 2
Shiv Shakti Coop. Housing Society v. Swaraj Developers, (2003) 6 S.C.C. 659. ..................... 2
Shrikrishna Sitaramji Fande v. State of Maharashtra, A.I.R. 2008 Bom. 64. .......................... 1
Smt. Seema Sarkar v. The State, (1995) 1 C.A.L.L.T. 95 (H.C.). ............................................ 16
Sonu Babu Bhambid v. Deram Developers Ltd., (2009) 17 S.C.C. 124. ................................... 7
Sreeranganathan K.P. v. Union of India, 2014 S.C.C. OnLine N.G.T. 5631. .......................... 2
State of Karnataka v. Janthakal Enterprises, (2011) 6 S.C.C. 695 ......................................... 14
State Of M.P. v. Narmada Bachao Andolan , (2011) 12 S.C.C. 689. ........................................ 8
Subhash Kumar v. State of Bihar, (1991) 1 S.C.C. 598 ........................................................... 18
Sudiep Shrivastava v. State of Chhattisgarh, Appeal No. 73 of 2012 dated 24-3-2014. .......... 4
Super Cassettes Industries v. Music Broadcast Private Ltd., (2012) 5 S.C.C. 488. .................. 1
T. Sudhakar Prasad v. Government of A.P., (2001) 1 S.C.C. 516............................................. 2
T.N. Godavarman Thirulpad v. Union Of India (2008) 9 S.C.C. 711. .................................... 15
Tarun Patel v. Chairman, Gujarat Pollution Control Board 2014 S.C.C. OnLine N.G.T.
1383...................................................................................................................................... 18
VI | P a g e

-Index of Authorities-

- Memorandum for the Petitioners-

Tehri Bandh Virodhi Sangarsh Samiti v. State of Uttar Pradesh, (1992) Supp. (1) S.C.C. 44. 5
Textile Processors Association v. Chief Secy., State of Guj., (1966) 1 S.C.C. 772. ................. 8
Thol. Thirumavalavan v. State of Madras, 2013 S.C.C. OnLine Mad. 2570. ......................... 11
Titaghar Paper Mills Co. Ltd. v. State of Orrisa, (1983) 2 S.C.C. 433. .................................. 12
V.K. Ashokan v. C.C.E., (2009) 14 S.C.C. 85. ......................................................................... 15
Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 S.C.C. 647 ............................... 14
Vikram Deo Singh Tomar v. State of Bihar, 1988 Supp. S.C.C. 734. ..................................... 10
Whirlpool Corporation v. Registrar of Trade Marks, (1998) 8 S.C.C. 1. ............................... 12
Workmen and Others v. Hindustan Lever Ltd., (1984) 1 S.C.C. 728. ....................................... 1
Yogal Kishore Bhuwania v. State Of Jharkhand, (2013) 2 A.I.R. Jhar. 24. ............................ 16
JOURNALS/ ONLINE RESOURCES
Clean Water and Air, available at https://www.forestfoundation.org/healthy-forests-helpclean-air-water ....................................................................................................................... 5
Fifteenth Lok Sabha Debate, Lok Sabha Debates (30-4-2010), available at ............................. 2
Jeff Wheelwright, Where the Smog Ends Up: The Giant Sequoia Forest, (SEP 12 06:07
PM),

available

at

http://news.nationalgeographic.com/news/2014/09/140910-sequoia-

national-park-smog-ozone-california-science/ ...................................................................... 5
Techno Science Issues in Water Pollution Litigations: The Supreme Court Approach, 1
R.M.L.N.L.U.J. (2008) 104 ................................................................................................. 17

VII | P a g e

-Statement of Jurisdiction-

- Memorandum for the Petitioners-

STATEMENT OF JURISDICTION
The Petitioners humbly submit this memorandum for two petitions filed before this
Honourable Court and the Honourable High Court of East Pradesh respectively, which have
been clubbed together and transferred for final hearing to be convened in this court. The first
petition has been filed by the Petitioners and invokes the Special Leave Jurisdiction of this
court under Article 136 of the Constitution of Manas Tirth. The second Writ Petition was a
Public Interest Litigation filed before the High Court of East Pradesh by the respondents
herein invoking the Writ Jurisdiction of the Court under Article 226 of the Constitution, but
the petition has been transferred to the Supreme Court under the provisions of Article 139A
of the Constitution.
This memorandum sets forth the facts, contentions and arguments for the appellants/
petitioners in the given case.

VIII | P a g e

-Statement of Fact -

- Memorandum for the Petitioners-

STATEMENT OF FACTS
I.

After getting elected in May 2015, the Central Government of Manas Tirth took several
measures to bring in foreign investment and develop industries including mining in order
to increase economic development and provide job opportunities. There is also an
economic depression throughout the world and the country needed to keep itself afloat in
the sinking world market. The country also needed Iron for military purposes. Thus, the
Cabinet approved New Mining Deal, 2015 and subsequent to the plan several mining
blocks were auctioned. The mining ores auctioned earned 200% more than the expected
rate and was a huge profit for the country.

II.

The auction was won by M/s. Marvolo Miners Inc, which is a world leader in mining.
The mining work commenced on June 1st, 2015.The Ministry of Environment and Forest
gave the clearance for mining activities. The MoEF followed procedural requirements and
all the required assessments were carried out before granting the license.

III.

In East Pradesh, Marvolo was granted license for iron blocks A, B and C. There are other
blocks D, E and F adjacent to these blocks which were not licensed. According to a news
reporters secret investigation, it was alleged that Marvolo mined in Blocks A, B and D
and left C untouched. The report also made certain other allegation such as environmental
degradation due to mining activities and infringement of tribal rights. Deforestation of a
huge area of the forest was also seen however, the same was not against the licenses. The
new reports are unclear if these were the results of alleged illegal mining in block D.

IV.

Mr. Percival Brian who was an independent candidate campaigning for the elections filed
a PIL before the High Court of East Pradesh against the mining activity, after the matter
was discussed politically. The court doubted the locus standi and the jurisdiction for the
PIL, yet ordered the SEIAA to conduct an investigation and file a report of the status.

V.

The SEIAA took only 2 days to investigate and announced in a press conference that
Marvolo carried mining in Block D violating license, but its investigation was insufficient
to see whether Block D mining caused any environmental change. This report was not
filed in the High Court. Thereafter, the NGT convened on Saturday and granted a suo
motu injunction against mining and ordered the mine to be sealed until further orders.

VI.

Aggrieved by this and the High Court PIL, Marvolo decided to approach the Supreme
Court of Minas Tirth. The Supreme Court thus transferred all the cases to the Supreme
Court for a special hearing and the final hearing has been posted for November 1st, 2015.

IX | P a g e

-Issues Raised-

- Memorandum for the PetitionersISSUES RAISED

1) Whether the National Green Tribunal is vested with suo motu powers?
1.1. That The National Green Tribunal Is Strictly Bound By The National Green Tribunal
Act, 2010
1.2. That It Was Not The Intention Of Legislature To Grant It Suo Motu Powers.
1.3. That National Green Tribunals Powers Are Not The Same As That Of The High
Courts.

2) Whether the New Mining Deal, 2015 permitting mining in the Area was valid and
whether mining in the Area was against environmental safety?
2.1. That The NMD Was Framed In Accordance With Statutory Provisions And Was Not
Arbitrarily
2.2. That NMD Authorizing Mining In The Area Is Not Violative Of Right To Wholesome
Environment And Thus Doesnt Violate Article 21.
2.3. That The NMD Is Not Violative Of The Rights Of Tribal People Living In The Area

3) Whether there has been a criminal violation of the mining license by Marvolo
Mining Company?
3.1. That This Court Should Refrain From Judicial Intervention And Not Initiate Criminal
Proceedings In The Present Case
3.2. That There Is No Evidence On Record To Suggest Criminal Violations On Part Of
Marvolo
3.3. That The Alleged Acts Do Not Constitute Criminal Offences And Thus No Criminal
Case Shall Be Initiated
3.4. That The Allege Violations Are Mere Contractual Violations And Not Criminal
Violations.

X|Page

-Summary of Arguments -

- Memorandum for the PetitionersSUMMARY OF ARGUMENTS

I.

WHETHER

THE

NATIONAL GREEN TRIBUNAL

IS VESTED WITH SUO MOTU

POWERS

It is submitted that the National Green Tribunal is not vested with any suo motu powers and
thus exceeded its jurisdiction while. Firstly, the NGT is vested with only those powers which
have been expressly conferred upon it by the NGT Act, 2010. Tribunals being creation of a
statute have limited jurisdiction. The NGT Act limits NGTs jurisdiction to matters which are
brought up by aggrieved parties. Secondly, there was no intention on part of parliament to
grant NGT suo motu powers. Thirdly, the powers of NGT cant be equated with that of High
Courts and Supreme Court can thus, NGT cant have the same inherent powers.
II.

WHETHER THE NEW MINING DEAL, 2015

PERMITTING MINING IN THE

AREA

WAS VALID AND WHETHER MINING IN THE AREA IS AGAINST ENVIRONMENTAL


SAFETY ?

It is submitted that the NMD was framed non-arbitrarily and doesnt violate the principle of
sustainable development and the fundamental rights of the tribal people living in the Area.
Also, mining activity in the Area was imperative for the development of Manas Tirth and
thus was based on rule of necessity. The right to environment has to be balanced with other
rights and interests, and the NMD was based on this act of balancing competing interests.
Also, this question of balance is a policy matter and the courts shall refrain from intervening
in them. Furthermore, all principles of environmental safety and all statutory considerations,
including an Environment Impact Assessment and rehabilitation policy were to be followed
during the mining activity, and thus no fundamental rights of tribals were violated.
III.

WHETHER
BY

THERE HAS BEEN A CRIMINAL VIOLATION OF THE MINING LEASE

MARVOLO MINING COMPANY?

There has been no criminal violation of the mining lease as neither the media reports nor the
SEIAA report suggest any kind of environmental damage due to alleged illegal mining in
Block D. Also, both the SEIAA report and media reports are unreliable piece of evidence and
cannot form the basis of registration of a criminal case. Also, the PIL filed by the respondent
before the High Court had been filed before the wrong forum, without exhausting alternative
remedies in pursuance of vested political interests and solely on basis of media reports. Thus,
the respondent is not entitled to any relief as the petitioner has no locus standi and has vested
interests. Moreover, an alternative remedy is available and a criminal case cannot be
registered through a PIL.
XI | P a g e

-Arguments Advanced -

- Memorandum for the Petitioners-

ARGUMENTS ADVANCED
1. Whether the National Green Tribunal is vested with suo motu powers?
The petitioners humbly submit that the NGT is not vested with suo motu powers and
exceeded its jurisdiction in the present case. The detailed arguments are as follows.
1.1. That the NGT is strictly bound by the National Green Tribunal Act, 2010
The NGT is vested with only those powers which have been expressly conferred upon it by
the NGT Act, 2010. Tribunals being creation of a statute have limited jurisdiction.1 While
exercising a statutory power the court has to act within the four corners of the statute.2
Section 18(1) of the NGT Act talks about application or appeals to the tribunal, and reads that
the applications under S. 14 and 15 or appeals under S. 16 shall be made in the form which
may be prescribed. This form has been prescribed in the NGT (Practice and Procedure)
Rules, 2011 and S. 8 of these rules makes it clear that an application under S. 18, NGT Act
shall be made by the applicant or appellant. Furthermore, Section 19 (2) states that an
application for grant of relief or compensation or settlement of dispute can only be made by
certain persons, and the NGT is not one of them. None of the provisions of the Act or the
Rules anywhere directly read or suggest that the NGT can itself hear a matter or application
suo motu. Whatever cannot be done directly cannot be done indirectly. 3 Power to act suo
motu should be spelt out by the provisions and it is normally difficult to infer such power
more so when specific mode to initiate such process is mentioned in the statute itself.4
Tribunals, in numerous instances, have been refrained from exceeding the power which
wasnt conferred over them by the statute. For example, it was held that the action of the
Labour Appellate Tribunal in hearing an appeal suo motu was hardly legitimate.5 Also, it has
been held that if an issue is not raised by the parties, the Industrial Tribunal cannot suo motu
raise the issue and decide upon the same.6 Similarly, the Supreme Court held that the
Copyright Board could not pass an order for interim relief as no express provision conferring
such power was mentioned in the Copyright Act, 1957.7 Also, it was held that the Board of
Revenue didnt have the power to take cognizance of a matter suo motu, because the same
was not provided in the statute and was neither the intent behind the statute. Hence, it can be

O.P. Gupta v. Rattan Singh, (1964) 1 S.C.R. 259.


Abdul Basit v. Mohd. Abdul Kadir Choudhary, (2014) 10 S.C.C. 754.
3
Rashmi Rekha Thatoi v. State of Orissa, (2012) 5 S.C.C. 690.
4
Shrikrishna Sitaramji Fande v. State of Maharashtra, A.I.R. 2008 Bom. 64.
5
Atherton West & Co. Ltd. v. Suti Mills Mazdoor Union, A.I.R. 1953 S.C. 241.
6
Workmen and Others v. Hindustan Lever Ltd., (1984) 1 S.C.C. 728.
7
Super Cassettes Industries v. Music Broadcast Private Ltd., (2012) 5 S.C.C. 488.
2

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construed that the NGT is not vested with any suo motu power and exercising such power is
exceeding its jurisdiction.
1.2. That it was not the intention of legislature to grant it suo motu powers.
The object of interpreting a statute is to ascertain the intention of the legislature. 8 The
intention of the legislature is primarily to be gathered from the language used.9 The court
cannot read anything into a statutory provision which is plain and unambiguous. 10 It has
already been established that the language used is plain and NGT has no suo motu powers.
Also, the parliament, recognizing the need for speedy and expeditious disposal of
environmental cases, especially in the light of pending litigation, established the NGT.11
Also, the Long Title of the NGT Act state that the act is meant for effective and expeditious
disposal of cases. Thus, we can construe that the parliament wanted the NGT to speedily
dispose of cases which are brought before it by aggrieved parties and not to hijack the suo
motu jurisdiction of the High Courts. Answering the question whether the Election Tribunal
had the power to grant interim stay, the Punjab and Haryana HC, observed that if the
legislature had so desired nothing prevented it from conferring statutory power upon the
Election Tribunal.12 Other tribunals, such as the Competition Commission of India have
been vested with suo motu powers expressly13. Similarly, if it was intention of the parliament,
it would have expressly conferred it suo motu powers.
1.3. That NGTs powers are not the same as that of the High Courts.
It is submitted that the NGT is not vested with same powers as that of the High Courts under
Art 22614. While the HC has relaxed the rule of locus standi in case of PILs, the NGT has on
occasions dismissed petitions for want of locus15. Also, the HC has power of superintendence
over all tribunals throughout the territory it exercises jurisdiction16 and all the tribunals are
within the judicial control of the High Court.17 Tribunals are more like courts of first instance
and can supplement but cannot substitute the High Courts.18 While the HC can exercise suo
motu powers in cases of grave necessity, the tribunal is only meant to supplement the HC by
8

Institute of Chartered Accountants of India v. Price Waterhouse, (1997) 6 S.C.C. 312.


Dental Council of India v. Hari Prakash, (2001) 8 S.C.C. 61.
10
Shiv Shakti Coop. Housing Society v. Swaraj Developers, (2003) 6 S.C.C. 659.
11
Fifteenth Lok Sabha Debate, Lok Sabha Debates (Apr. 30,2010), available at
http://164.100.47.132.LssNew/psearch/Result15.aspx?dbsl=2380.
12
Shamlal v. State Election Commissioner, A.I.R. 197 P. & H. 164.
13
The Competition Act, 2002 26.
14
Amit Maru v. Secretary, Ministry of Environment and Forests, 2014 S.C.C. OnLine N.G.T. 6972.
15
Sreeranganathan K.P. v. Union of India, 2014 S.C.C. OnLine N.G.T. 5631.
16
The Constitution of India, 1950, art. 227.
17
T. Sudhakar Prasad v. Government of A.P., (2001) 1 S.C.C. 516.
18
L. Chandra Kumar v. Union of India, A.I.R. 1997 S.C. 1125.
9

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hearing disputes brought by applicants and disposing them expeditiously. Thus, it can be
concluded that the powers of High Courts are much broader to those of the NGT and the
NGT cannot claim the suo motu power which is derived from Article 226.
2. Whether the New Mining Deal, 2015 permitting mining in the Area was valid and
whether mining in the Area was against environmental safety?
The petitioners humbly submit that the mining activity in the State of East Pradesh was not
against environment safety and the New Mining Deal, 2015 permitting the same was valid.
The NMD was framed non-arbitrarily and doesnt violate the principle of sustainable
development and the fundamental rights of the tribal people living in the Area. Also, mining
activity in the Area was imperative for the development of Manas Tirth and thus was based
on rule of necessity. The detailed arguments in support of this contention follow.
2.1. That the NMD was framed in accordance with statutory provisions and was not
arbitrarily
Any forest land or any portion thereof may be used for any non-forest purpose; that any forest
land or any portion thereof may be assigned by way of lease or otherwise to any private
person or to any authority, corporation, agency or any other organisation not owned, managed
or controlled by Government.19 Such clearances are granted if central government considers
it reasonable to cut the forest, which is decided on the basis of the report of the committee.20
Hence, the great right of granting such powers is vested in the hands of the central
government who can do the act if it deems it fit.
Article 14 ensures fairness21 and guarantees against arbitrariness.22 It provides that every
action of the government must be informed by reasons and guided by public interest.23
Counsel on behalf of the respondent humbly submit that the policy decision of the
government is based on scientific research , rule of necessity24 and reason and is therefore not
arbitrary and thus does not violate the provisions under Article 14 of the Constitution of
Manas Tirth. In the landmark Wednesbury case25 it was so decided that for every executive
action that can be challenged by the judiciary, the following three questions must be satisfied:
(1) whether the executive body in question, took into account factors that ought not to have
been taken into account, or, (2) the executive body failed to take into account factors that
19

The Forest Conservation Act, 1980, 2(ii).


Goa Foundation and Others v. State of Goa and Others, 2001 (3) Bom. C.R. 813.
21
Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.
22
Delhi Transport Corporation v. DTC Mazdoor Congress, A.I.R. 1991 S.C. 101.
23
Express Newspaper Ltd. v. Union of India, A.I.R. 1986 S.C. 872.
24
Election Commission of India v. Dr. Subramaniam Swamy, (1996) 4 S.C.C. 104.
25
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223.
20

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ought to have been taken into account, or, (3) the decision was so unreasonable that no
reasonable authority would ever consider imposing it.
There are no such causes which show that the government touched something proximal in
nature while drafting New Mining Deal. Adding more to the case, the government even took
proper care to draft this new deal as there was need of iron for military purposes and the
country was going through an economic turn moil, so mining activities were inevitable.
Lastly, this decision was completely sane, reasonable and in consistent with the rule of law,
as it would be a developmental act for the entire countrys population. This test of
unreasonableness has been adopted in many cases like Delhi Science Forum v. Union of
India26 and Rameshwar Prasad v. Union of India27. Also, the NGT in cases like Sudiep
Shrivastava v. State of Chhattisgarh28 has applied principle of Wednesbury unreasonableness.
Coming to the International conventions, the right to development must be fulfilled so as to
equitably meet developmental and environmental needs of present and future generations.29
The action of the central government is aimed at safeguarding the interests of the economic
aspect of the union and providing a better tomorrow to the next generation. The lifestyle of
the entire mass is modern, and takes into account many tools of development, like electricity,
which is even regarded as the heart and soul of modern life.30 Principle 22 of the Rio
Declaration on Environment and development talks about sustainable development by
keeping the touch of tribal people as well.
Environmental protection is an on-going process and environmental protection is not the
same thing as sustainable development, as they have different facets. 31 What the respondents
have been asking about in environmental protection and not sustainable development which
is the need of the hour.
2.2. That NMD authorizing mining in the Area is not violative of right to wholesome
environment and thus doesnt violate Article 21.
It is submitted that the Mining Project does not violate the Right to Environment. The
following points are raised in support of this contention

26

Delhi Science Forum v. Union of India, (1996) 2 S.C.C. 405.


Rameshwar Prasad v. Union of India, (2006) 2 S.C.C. 1.
28
Sudiep Shrivastava v. State of Chhattisgarh, Appeal No. 73 of 2012 dated March 24,2014.
29
Rio Declaration of Environment and Development, 1992, Principle 3.
30
G. Sundarrajan v. Union of India, (2013) 6 S.C.C. 620.
31
Lafarge Umian v. Union of India, (2011) 7 S.C.C. 338.
27

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2.2.1. That the Mining Activity was to be carried out under stringent regulations
The respondent may submit that mining activities are causing air pollution, water pollution
and soil degradation, but forestland also helps keep our water safe to drink, and purify the air
by consuming carbon dioxide and trapping greenhouse gasses.32 In an agricultural basin of
California, known as Sierra Nevada Mountains, there is a report that heavy smog from the
adjoining industries get trapped and the air is getting cleaner.33
Moreover, the MoEF gave the clearance for mining activities and followed all the procedural
requirements and all the required assessments before granting the license, and even the state
government did not raise any issues about it.34. Central government and forest officers cannot
be held liable for damage to forest produce. 35
Lastly, it has been held that a mere change in environment does not per se violate Art. 21,
especially when steps are taken to preserve and improve it.36
2.2.2. That scientific arguments are beyond the scope of judicial review
The issue of environmental safety of the mine is one that requires scientific expertise. This
Court does not possess the requisite expertise to adjudicate on intricate scientific questions or
conflicting expert opinions.37 Consequently, there is a long-standing tradition of this Court
not interfering with the decisions to experts.38 In Tehri Bandh Virodhi Sangarsh Samiti39, it
was held that the role of the Court is only to investigate whether the Government was alive to
the inherent dangers of a project and whether the Government had applied its mind to the
safety of a project. In this case, the safety aspects of the Mining Project have been considered
by experts and the Respondents at the EIA Stage. Therefore, it is submitted that it is beyond
the scope of judiciary, and the report of a properly authorised committee should be given the
weightage. This the present case, the MoEF carried out an Environment Impact Assessment
which is carried on by an independent expert body before granting clearance for mining.
2.2.3. That the Right to Environment shall be balanced with other interests.

32

Clean Water and Air, available at https://www.forestfoundation.org/healthy-forests-help-clean-air-water


accessed on Oct. 20, 2015.
33
Jeff Wheelwright, Where the Smog Ends Up: The Giant Sequoia Forest, (SEP 12 06:07 PM), available at
http://news.nationalgeographic.com/news/2014/09/140910-sequoia-national-park-smog-ozone-californiascience/ accessed on Oct. 20, 2015 .
34
Moot Proposition, 4.
35
Indian Forest Act, 1947 43.
36
Narmada Bachao Andolan v. Union of India, A.I.R. 2000 S.C. 3751.
37
Tehri Bandh Virodhi Sangarsh Samiti v. State of Uttar Pradesh, (1992) Supp. (1) S.C.C. 44.
38
Central Areca Nut & Cocoa Marketing & Processing Coop. Ltd. v. State of Karnataka, (1997) 8 S.C.C. 31.
39
Tehri Bandh Virodhi Sangarsh Samiti v. State of Uttar Pradesh, (1992) Supp. (1) S.C.C. 44.

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Even if mining operations would do harm the larger public interest of the community should
give way.40 This view was also taken in Narmada Bachao Andolan case. It has been held that
sometimes the ill-effects of technology have to be tolerated as the cost of their advantages.41
Also, the respondent submits that the state is duty bound to provide employment
opportunities and economic empowerment for its citizens.42 The mining project solves the
economic and military crisis, and it provides employment to local inhabitants as well. The
construction and maintenance of the mines also serve to secure employment opportunities for
the indigenous people as well the people who have come from the other parts of the country.
Right to Sustainable Development is a fundamental right and is to be treated as an integral
part of life under Article 21. Therefore, the respondent humbly submits that the policy of the
government does not violate Article 14 or Article 21of Constitution of Manas Tirth.
Since the respondents are unable to demonstrate any tangible harm to human health, this
balancing approach is the right one. Further, the substantial benefits of the Mining Project
outweigh the apprehension of minor health problems, it is submitted that there is no violation
of right to health.
2.2.4. That such a balance is a question of policy and cannot be interfered lightly.
The task of striking the aforesaid delicate balance between maintaining environment and
solving other problems in public interest is for the Government, 43 and not the Court.44 Such a
delicate balance is a matter of policy and must be lightly interfered with. Further, it has been
reiterated multiple times that it is beyond the scope of judicial review to examine the wisdom
behind a policy.45 The Court does not test the correctness of a policy or strike it down merely
because there are alternatives that are in the Courts opinion may be fairer or wiser. 46 The
Court may interfere only if there illegality or mala fides47 and not merely because it is
wanting in public interest.48 Therefore, the Court may not strike down the policy decision of
the Government to carry on the mining project unless there is some illegality or mala fide in
it, by the way of calling it violative of Article 21.

40

G. Sundarrajan v. Union of India, (2013) 6 S.C.C. 620.


Reliance Infocom Ltd. v. Chemanchery Grama Panchayat, A.I.R. 2007 Ker. 33.
42
Ashok Kumar Gupta v. State of U.P., (1997) 5 S.C.C. 201.
43
Rural Litigation Entitlement Kendra v. State of Uttar Pradesh, A.I.R. 1985 S.C. 652.
44
Sachidananda Pandey v. State of West Bengal, A.I.R. 1987 S.C. 1109.
45
B.A.L.C.O. Employees Union v. Union of India, (2002) 2 S.C.C. 333.
46
Premium Granites v. State of T.N., (1994) 2 S.C.C. 691.
47
B.A.L.C.O. Employees Union v. Union of India, (2002) 2 S.C.C. 333.
48
Kasturi Lal Lakshmi Reddy v. State of Jammu & Kashmir, A.I.R. 1980 S.C. 1992.
41

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2.3. That the NMD is not violative of the rights of tribal people living in the area
2.3.1. That the NMD was not violative of Article 19
As is the case, the tribal people relocated.49 Rights of tribal people to reside in tribal areas can
be restricted under Article 19(5) if it is in the public interest.50 The public interests over here
are that of economic wellbeing of the country51 and security of the nation.52 'Interest of
general public' is a comprehensive expression intended to achieve the socioeconomic justice
for people by the State.53 In cases like Akhil Bhartiya Upbhokta Congress v. State of Madhya
Pradesh and Ors.54 and Sachidanand Pandey and Anr.v. State of West Bengal and Ors.55 it
was so held that the Government while exercising its power and by subscribing to the concept
of 'social justice' and 'economic justice' enshrined in the preamble might detract from some
technical rule in favour of a party, in order to do greater good to a larger number so as to act
in consonance with the principles of equality and public trust.
Coming to the rehabilitation aspect of the problem, in the case of Housing Development
Infrastructure Ltd. v. State of Maharashtra56 it was so held that the scope of rehabilitation
can only be promised when there was a provision of the same in the context of the statutory
act which resulted in forceful evacuation of the people of that area. In the present case, there
firstly, is no forceful evacuation and that is followed by wilful relocating by the tribals, so the
claim for rehabilitation falls flat, and the government has no onus on itself to provide for such
rehabilitations. In many cases, original residents are not entitled to rehabilitation scheme, if
the land is proposed to be developed and not recognised.57 The relocation of the tribal people
is completely on their own wish and does not come in the proximity of the New Mining Deal,
and moreover, the said mining area is for development cause. It has been held that that the
displacement of tribals does not per se result in the violation of their fundamental rights.58
The Tribal Communities may be displaced for the Mining Project; however, this alone is not
sufficient to establish violation of Art. 21. Even ILO Convention No. 169 allows for
involuntary displacement in the interest of economic development.59

49

Moot Proposition, 8.
Kharak Singh v. State of U.P., A.I.R. 1963 S.C. 1295.
51
Peerless General Finance and Investment Co. v. Reserve Bank of India, (1992) 2 S.C.C. 343.
52
Cantt. Board v. Mahindra Owen Ltd., A.I.R. 1986 S.C. 1114.
53
Court on its own motion v. Union of India, 2012 (12) S.C.A.L.E. 307.
54
Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh and Ors., (2011) 5 S.C.C 29.
55
Sachidanand Pandey and Anr. v. State of West Bengal and Ors., (1987) 2 S.C.C. 295.
56
Housing Development Infrastructure Ltd. v. State of Maharashtra, 2015 S.C.C. OnLine Bom. 3584.
57
Sonu Babu Bhambid v. Deram Developers Ltd., (2009) 17 S.C.C. 124.
58
Narmada Bachao Andolan v. Union of India, (2000) 10 S.C.C. 664.
59
I.L.O. C. 169, art. 7(2).
50

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In fact, it is submitted that there is a possibility for the Tribal Communities to lead a better
life with more amenities at the sites of rehabilitation.60
2.3.2.

That the NMD was not violative of Art 21.

In the present case, there has been no violation of Article 21 of the Constitution. To establish
of the violation Article 21, the act should be subjected to the equality test of Article 14 and
test of reasonableness under Article 1961, Article 14 ensures fairness62 and guarantees against
arbitrariness.63
In the present case Minas Tirith was facing shortage of iron for military purposes and was
having economic hardships as well, hence the New Mining Deal came in to the serve the
purpose of the entire nation, making it reasonable, fair and just. The plan was development
oriented from tip to toe.
Factual analysis of the condition says that, only a part of the mining area was under the
Burrow and hence the damage of environment and loss of the tribals, which are being sought
cannot be put onto such an extensive level as it has been by the respondents. There can be
positive findings in favour of industries64 and other such institutions of development, like
mining. Even in the case of Belmarks Metal Works, Pondichery v. Member Secy., Pondichery
Pollution Control Committee65 , the Madras high court was of the view that unless authorities
have a positive approach in encouraging the expansion of industries, the country will not
achieve the goal of rapid industrialization.
Since, the economic development cannot be allowed to take place at the cost of ecology but
the necessity to preserve ecology and environment should not hamper economic and other
developments66, which includes generation of revenue and public interest.67 In the present
case, the rights of the indigenous people have not been violated on the account of isolation or
relocation since the movement of the people to forest was rather an inevitable consequence. It
is considered that the gradual assimilation of the indigenous people in the mainstream of the
society will lead to their betterment and progress.68 Furthermore, Article 16 of the ILO C169
says that Where the relocation of these peoples is considered necessary as an exceptional
60

State Of M.P. v. Narmada Bachao Andolan , (2011) 12 S.C.C. 689.


Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.
62
Mahesh Chandra v. Regional Manager, U.P. Financial Corpn, A.I.R. 1993 S.C. 935.
63
Express Newspaper Ltd. v. Union of India, A.I.R. 1986 S.C. 872.
64
Textile Processors Association v. Chief Secy., State of Guj., (1966) 1 S.C.C. 772.
65
Belmarks Metal Works, Podichery v. Member Secy., Pondichery Pollution Control Committee, 2014 S.C.C.
OnLine Mad. 844.
66
Banwaslseva Ashram v. State of U.P., A.I.R. 1987 S.C. 374.
67
Research Foundation for Science Technology and Natural Resource Policy v. Union of India and Others,
A.I.R. 2007 S.C. (Supp.) 852.
68
Narmada Bachao Andolan v. Union of India, (2000) 10 S.C.C. 664.
61

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measure, such relocation shall take place only with their free and informed consent. Where
their consent cannot be obtained, such relocation shall take place only following appropriate
procedures established by national laws and regulations, including public inquiries where
appropriate, which provide the opportunity for effective representation of the peoples
concerned. In the present case, all the requirements are seen to fit the puzzle for the
petitioners.
Adding more to it, there even happens to be a right to employment as guaranteed under
Article 21. In the case of Centre for Environment and Food Security v. Union of India69 it
was so held thatThe framers of the Constitution, in the Preamble to the Constitution, guaranteed to
secure its citizens justice, social, economic and political as well as equality of status
and opportunity but the right to employment was not incorporated in Part III of the
Constitution as a Fundamental Right. By judicial pronouncements, the courts expanded
the scope of Article 21 of the Constitution of India and included various facets of life as
rights protected under the said Article despite the fact that they had not been
incorporated by specific language in Part III by the framers of the Constitution.
Judgments of this Court in the cases of Olga Tellis v. Bombay Municipal Corporation
70

and Narendra Kumar Chandla v. State of Haryana71 expanded the scope of Article 21

and held that right to livelihood is integral part of the right to life.
The counsel would like to derive that if there are some mines in the area of tribal residences,
the jobs for blue collared labour would be taken by none other than the tribal population
itself. So over here, the right to livelihood, gets recognition. And hence, Article 21s stance is
strengthened.
Right to employment itself is not a fundamental right but in terms of Article 14 and Article
16 each person similarly situated has a fundamental right to be considered for employment. 72
So even there is right to employment that is being promised to the tribal population, which
would definitely assure another fundamental right, i.e. the right to quality life.
Another aspect of Article 21 is the enjoyment of quality life, which is the essence of Article
21.73 Every citizen has a fundamental right to enjoyment of quality of life and living as

69

Centre for Environment and Food Security v. Union of India, Writ Petition (Civil) No. 645 of 2007.
Olga Tellis v. Bombay Municipal Corporation, (1985) 3 S.C.C. 545.
71
Narendra Kumar Chandla v. State of Haryana, (1994) 4 S.C.C. 460.
72
Anuj Garg v. Hotel Association of India, (2008) 3 S.C.C. 1.
73
Hinch Lal Tiwari v. Kamala Devi, (2001) 6 S.C.C. 496.
70

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contemplated by Article 21.74


In the case of Vikram Deo Singh Tomar v. State of Bihar75 it was so held that
Our constitution lays special emphasis on the protection and wellbeing of the weaker
sections of the society and seeks to improve their economic and social status on the
basis of constitutional guarantees spelled out in its provisions. Under Article 21, every
person is entitled to the right to quality life and to live with human dignity as per his
human personality.
The counsel would like to plead that, if there would be development of the country in its
entirety by this mining act and even there would be employment generation in case of the
resident tribals, there would be resources such as education76, hospitals77 and other relevant
civic amenities. Moreover, the interaction between two cultural groups is a form of
progression. The workers that came into that area for the purpose of mining were of
diversified culture and hence, it is considered to be of a peaceful nature, rather than a
disturbance.
3. Whether there has been a criminal violation of the mining license by Marvolo
Mining Company?
The petitioners humbly submit that there has not been a criminal violation of the Mining
License by M/s Marvolo Mining Company and thus a criminal case shall not be registered
against them. The detailed arguments in the support of this contention follow below.
3.1. That this court should refrain from judicial intervention and not initiate criminal
proceedings in the present case
The PIL filed by the respondent before the High Court had been filed before the wrong
forum, without exhausting alternative remedies in pursuance of vested political interests and
solely on basis of media reports. Thus, the respondent is not entitled to any relief.
3.1.1. That the petitioner has no locus standi and has vested interests
The court should be careful and circumspect and should reject at the outset petitions which in
the guise of PILs are really intended to settle personal scores or to gain cheap popularity. 78
Only a person acting bona fide and having sufficient interest in the proceedings of the PIL
will have a locus standi. But a person for private gain or personal profit or political motive or

74

C.P.M.S. Samti v. State Of U.P., (1990) 4 S.C.C. 449.


Vikram Deo Singh Tomar v. State of Bihar, 1988 Supp. S.C.C. 734.
76
M.C. Mehta v. State of Tamil Nadu and Ors., (1991) 1 S.C.C. 283.
77
Bangalore Municipal Trust v. B.S. Muddappa, (1991) 4 S.C.C. 54.
78
Gurpal Singh v. State of Punjab, (2005) 5 S.C.C. 136.
75

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any oblique consideration has no locus standi.79 In the present case, Mr. Percival Brian, the
respondent herein was an independent candidate campaigning for elections and filed a PIL
regarding the mining activity only after the same was discussed politically. 80 This suggests
that the petitioner had a vested interest as intervening in the issue would have given political
mileage in the elections. A petitioner who comes to the Court for relief in public interest must
also come with a clean heart, clean mind and clean objective along with clean hands.81 Public
Interest Litigation which has now come to occupy an important field in the administration of
law should not be publicity interest litigation or private interest litigation or politics
interest litigation.82 Also, the courts in PILs must satisfy themselves about the credentials
and motives of the petitioner.83 A petition filed by a political rival cant be said to be filed by
a public-spirited person and cannot be maintained as a PIL.84 As the respondent herein didnt
have a clean objective and his actions were guided by political interests, and thus had impure
motives and credentials, he has no locus standi to approach the court.
3.1.2. That a criminal case cannot be registered through a PIL
Third party PILs in a criminal case ought not to be entertained.85 The High Courts or the
Supreme Court is not an appropriate forum for aggrieved parties to get criminal cases
registered. That function clearly lies in the domain of the executive and it is up to the
investigating agency to decide whether the material presented before them provides a
sufficient basis to launch an investigation.86 In Divine Retreat Centre v. State of Kerala87, the
Supreme Court held that the High Court in exercise of its whatsoever jurisdiction cannot
direct investigation by constituting a Special Investigation Team on the strength of
anonymous petitions. The High Courts cannot be converted into Station Houses. Similarly,
a complainant cannot approach the High Court by filing a petition and seeking directions to
conduct an investigation by the Central Bureau of Investigation. 88 In Manohar Joshi v. State
of Maharashtra89, the Supreme Court deleted a part of impugned order of the High Court
which directed to initiate criminal investigation against the accused CM and other ministers,

79

Janata Dal v. H.S. Chowdhary, (1992) 4 S.C.C. 305.


Moot Proposition, 8.
81
K.R. Srinivas v. R.M. Premchand, (1994) 6 S.C.C. 620.
82
Ashok Kumar Pandey v. State of West Bengal, (2004) 3 S.C.C. 349.
83
P. Seshadri v. S. Mangati Gopal Reddy, (2011) 5 S.C.C. 484.
84
S.K. Kanta v. Quamarul Islam and Others, (2005) 11 S.C.C. 507.
85
Thol. Thirumavalavan v. State of Madras, 2013 S.C.C. OnLine Mad. 2570.
86
Kunga Nima Lepcha v. State of Sikkim, (2010) 4 S.C.C. 513.
87
Divine Retreat Centre v. State of Kerala, (2008) 3 S.C.C. 542.
88
A.I.I.M.S. Employees Union v. Union of India, (1996) 11 S.C.C. 582.
89
Manohar Joshi v. State of Maharashtra, (2012) 3 S.C.C. 619.
80

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as this order was not sustainable. Also, in a particular case90, the Supreme Court refused to
direct criminal investigation against the other respondents on the basis of vague allegations.
Similarly, the Delhi HC refused to accept a PIL which sought to get a criminal case registered
against the respondents, because the HC is not a place to get ordinary criminal cases filed and
a place to settle personal disputes.91 In the present case, the respondent approached the High
Court to get an ordinary criminal case registered on the basis of vague allegations published
in newspaper reports. Also, the PIL seems to be filed for political purposes and to settle the
herein respondents own political rivalry. Thus, it would not be in interests of justice to allow
the PIL filed in the HC and register a criminal case against Marvolo as first, it is not the
domain of the courts to register criminal cases and second, the allegations made by the
respondents are vague and guided by political motives.
3.1.3. That there is an alternative remedy available
If an effective and efficacious remedy is available, the High Court would not normally
exercise its jurisdiction.92 In the present case, there was a statutory remedy available to the
respondent to approach the police93 or magistrate94 to get a criminal case registered against
Marvolo. Also, Section 22 of the Environment (Protection) Act, 1986 provides remedy and
the procedure to be followed by the complainant to get a criminal case registered under the
Act. Similar procedure is also mandated by other environmental statutes 95. It is now well
recognised that where a right or liability is created by a statute which gives a special
remedy for enforcing it, the remedy provided by that statute only must be availed of.96
Also, one of the conditions for granting relief under the writ jurisdiction is that there must
be a demand for the relief and its refusal by the authority concerned.97Here, the respondent
has an effective and efficacious statutory remedy available, and he has not even tried to
avail it, and has come directly to the High Court to avail an ordinary criminal case
registered. Thus, he is not entitled to any remedy.

90

National Council for Civil Liberties v. Union of India, (2007) 6 S.C.C. 506.
Paardarshita Public Welfare Foundation v. Union of India and Ors., A.I.R. 2010 Del. 82.
92
Whirlpool Corporation v. Registrar of Trade Marks, (1998) 8 S.C.C. 1.
93
The Code of Criminal Procedure Code, 1973, 153.
94
The Code of Criminal Procedure Code, 1973, 190.
95
Air (Prevention and Control of Pollution) Act, 1981, 43; Water (Prevention and Control of Pollution) Act,
1974, 49; The Indian Wildlife (Protection) Act, 1972, 55.
96
Titaghar Paper Mills Co. Ltd. v. State of Orrisa, (1983) 2 S.C.C. 433.
97
Naubat Rai v. Union of India, A.I.R. 1953 Punj. 137.
91

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3.2 That there is no evidence on record to suggest criminal violations on part of


Marvolo
The Petitioners humbly submit that before entertaining a PIL, the Court has to be satisfied
about (a) the credentials of the applicant; (b) the prima facie correctness or nature of
information given by him; (c) the information being not vague and indefinite.98 It has already
been shown that the respondent herein lacked credentials. The second and third conditions are
also not being satisfied in the present case, for reasons enumerated below.
3.1.4. That criminal charges cannot be framed solely on the basis of media reports
Judicial notice cannot be taken of the facts stated in a news item being in the nature of
hearsay secondary evidence.99 A report in a newspaper is only hearsay evidence.100 A
newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872
by which an allegation of fact can be proved. The presumption of genuineness attached under
Section 81 of the Evidence Act to a newspaper report cannot be treated as proof of the facts
reported therein.101 In the present case, the respondent filed a PIL solely on the basis of
newspaper reports with no other material to substantiate the allegations. Where, a writ
petition to initiate criminal proceedings against certain persons was filed solely on the basis
of newspaper reports, the Court refused to grant the prayer.102 Similarly, a writ petition
seeking criminal investigation in a particular issue was dismissed with costs. 103 Likewise, the
SC dismissed a particular petition filed by a political leader, which sought registration of a
criminal case against his rival, as the petition was based solely on media reports.104 The court
also observed that newspaper reports do not constitute evidence. A petition based on
unconfirmed news reports, without verifying their authenticity should not be entertained. As
the media reports are not valid evidence and the prima facie correctness of the allegations is
not established, no criminal case shall be initiated on their basis.
3.1.5.

That the SEIAA report is not enough to suggest any criminal violation

The petitioners humbly plead that in the present set of facts and circumstances the only thing
that can be conclusively but forward on the table is one mere fact that there exists no detailed
reliable source of information on the basis of which the criminal case can be sought out105.

98

B. Singh v. Union of India, (2004) 3 S.C.C. 363.


Laxmi Raj Shetty v. State of Tamil Nadu, (1988) 3 S.C.C. 319.
100
Quamarul Islam v. S.K. Kanta, A.I.R. 1994 S.C. 1733.
101
Ravinder Kumar Sharma v. State of Assam, (1999) 7 S.C.C. 435.
102
Empathy v. C.B.I., 2009 S.C.C. OnLine Cal. 469.
103
Rohit Pandey v. Union of India, (2005) 13 S.C.C. 702.
104
Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra, (2007) 14 S.C.C. 281.
105
Quamarul Islam v. S.K. Kanta, 1994 Supp. (3) S.C.C. 5, p. 27.
99

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The SEIAA report is silent as to whether there was any kind of environmental pollution that
was caused or not, this argument is in the light of the fact that there are set parameters beyond
which if there is presence of pollutants in the air, to be in contravention to the Air Act106.
Whereas the report nowhere establishes on this very aspect and merely talks about the
environmental changes that have resulted in inconvenience to the locals107. Even the release
of dust that is an indispensable part of mining, may be a cause for inconvenience that but is in
nowhere close to being a conclusive proof that air pollution has been caused. The Calcutta
High Court in Khaitan (I) Ltd v Union Of India opined108,Where there exists a disputed
question of fact the court may not entertain the writ petition.. Moreover, the veracity of this
very report of SEIAA has been under the scanner since the outset since the report was made
just within two days and that too vaguely without any conclusive proof just made assertions.
It is also pertinent to mention that it has also not been filed. Since, on the face of it the report
doesnt make any efforts to establish that has been any conduct which has caused pollution or
anything which attracts criminal liability.
3.2. That the alleged acts do not constitute criminal offences and thus no criminal case
shall be initiated
The petitioners humbly submit there exists a well-established principle as that of Sustainable
Development the view of which is strike out a balance between development and
environment protection thereby operations such as mining which are allowed109 if they have
requisite clearence, it has been reaffirmed in T.N Godavarman Thirulpad vs. Union Of
India110 the Supreme Court opined that :
Mining

is

an important

revenue

generating

industry

and

if

there

has

been certification by MoEF and if there exist a balance between the principle of
sustainable development viz. protection of ecology and mining, thereby it may be
allowed.
Therefore, M/s Marvolo Mining Company had acted in total accordance with the procedure
as established under the license since the only thing that has been proved is that the mines
were excavated beyond the prescribed limit and this may amount to a mere contractual
violation for which the damages can be claimed111 As an arguendo even though it has been
already proved for the record there isnt anything to prove the mere baseless allegations and
106

The Air (Prevention And Control Of Pollution) Act, 1981 22.


Moot Proposition, 9.
108
Khaitan (I) Ltd v Union Of India, A.I.R. 2000 Cal. 1.
109
M.C. Mehta v. Union of India, (2004) 12 S.C.C. 118.
110
T.N. Godavarman Thirulpad v. Union Of India, (2008) 9 S.C.C. 711.
111
V.K. Ashokan v. C.C.E., (2009) 14 S.C.C. 85.
107

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to prepare the ground for even a prima facie case, there have no such actions which may
amount to criminal violation. It is a very well established principle in the Indian criminal
jurisprudence that the sine qua non for punishment of imprisonment and fine under any of the
acts is a fair trial in a competent court112 as reaffirmed by the Supreme Court in M.C. Mehta
v. Kamal Nath. The issue regarding inability to cognizance and how none of the provisions
have been violated have been explained further.
3.2.1. There has been no criminal violations under the Mines and Minerals
(Development and Regulation) Act, 1957
The petitioners humbly submit that there has been a no criminal violation under this statue by
M/s Marvolo Mining Company as they mined with due regard to all the conditions to which
they were subjected in the lease granted. Even though there are no sufficient proof, but still
even if Block A and Block B were mined more than 100 feet exceeding the cap value as that
of 100 feet it amounts to mere violation of the mining lease i.e. per se a contract and a
criminal a criminal action cannot be called in for a mere contractual violation. At max M/s
Marvolo Mining Company can be sued in the civil court for damages and not a criminal
prosecution. The petitioners submit that even though if we for argument sake assume that the
company had committed all such acts which attract the criminal provisions under the Mines
and Minerals Act, 1957, thus imposing criminal liability cannot be imposed as taking
cognizance of such crimes if the due procedure that has been prescribed has not been adhered
to because of the cognizance clause113, is a bad law. The court in Smt Seema Sarkar v The
State114 explicitly held that:
This is the admitted position that the complainant who lodged the complaint is not
an authorized person to make such complaint. So taking cognizance on the basis of
the complaint by the learned Magistrate for violation of the provision Under
Section 21(2) of the Mines and Minerals (Regulation and Development) Act, 1957 is
bad law.
Moreover, the court held that even partial cognizance will also amount to a bad law and this
decision was reaffirmed in the recent decision of the Yogal Kishore Bhuwania v. State Of
Jharkhand115, wherein court quashed an order on the ratio decidendi

that, since the

competent person has never come forward to lodge any complaint for commission of the
offence under the Mines and Mineral (Regulation and Development) Act and thereby the
112

M.C. Mehta v. Kamal Nath, (2000) 6 S.C.C. 213, p.222.


The Mines And Minerals (Development And Regulation) Act, 1957, 22.
114
Smt. Seema Sarkar v. The State, (1995) 1 C.A.L.L.T. 95 (H.C.).
115
Yogal Kishore Bhuwania v. State Of Jharkhand, (2013) 2 A.I.R. Jhar. 24.
113

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- Memorandum for the Petitioners-

court has certainly committed illegality in taking cognizance of the offences under the Mines
and Mineral (Regulation and Development) Act.
Since the MMDR act provides that no one should undertake mining operation in any area
which is not in accordance with the mining lease116, the counsel submits that it was merely a
mistake of fact117 under which the company had mined the Blocks A and B more than the
permissible limit and it over exploitation was of very less quantum. Moreover, even the
mining that was done on block D is in violation of the act, it was merely a mistake of fact and
as all the mines were adjacent to each. This can be established on the basis of the fact that if
they would have wanted to mine Block D in contravention to the law, then they would not
have left Block C (which was leased out) unmined, thereby it can be said that mining on
Block D happened merely as the mistake of Fact, which is a valid defence118. Moreover
thereby the penal provisions119 for contravention of the provision of Sub-section (1) of
Section 4 of the Act cannot be invoked.
3.2.2. Criminal violations under the Air (Prevention and Control of Pollution) Act,
1981 and the Water (Prevention and Control of Pollution) Act, 1974
It is submitted that there has been no criminal violation under these statues by M/s Marvolo
Mining Company as they mined subject to the conditions specified in the lease. Throughout
the entire report it has been nowhere mentioned that there has been pollution as to of any kind
neither air nor water, as the SEIAA report itself reads as environmental changes 120, which per
se cannot amount to pollution since it does not justifies such the definition121. There no
evidences what so ever on the basis of which it can be said that since Block A, B and D have
been mined, it has led to unprecedented air pollution in the area 122 . There must be utter
disregard to the media reports since, they are merely hearsay123 evidence and the court must
not misdirect itself in the basis of these reports. Moreover, the argument that the river water
which is the sole source of fresh water is getting polluted has been put up only in the news
report. The possibility of happening of such an instance falls flat since the reason stated to be
it behind is the use of inferior technology124, which per se cannot happen since the technology
that the mining company has been using is of the best in class as per the tender and passed the
116

The Mines And Minerals (Development And Regulation) Act, 1957 4.


The Indian Penal Code, 1860 76.
118
ICI India Ltd. and Anr. v. State of Orissa and Ors., (2007) 8 S.C.C. 629.
119
The Mines and Minerals (Development and Regulation) Act, 1957 21(1) and 21(3).
120
Moot Proposition, 6.
121
The Air (Prevention and Control Of Pollution) Act, 1981 19.
122
Rural Litigation and Entitlement Kendra v. State of U.P., (1985) 2 S.C.C. 431.
123
Joseph M. Puthussery v. T.S. John, (2011) 1 S.C.C. 503.
124
Factsheet, 7.
117

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EIA test during the MoEF clearance. If there would had been so then it would had been
highlighted in the report published by SEIAA.
The Anti-Pollution Laws are framed and the Notification issued thereunder contains
provisions which prohibit125 and/or regulate certain activities with a view to protect and
preserve the environment126 but not with such an intention to stall the development of the
country by subjecting industries to litigation without following the due procedure. Under all
the Anti-Pollution acts the procedure to bring an issue to the courts notice has been given and
it has been stated that only the specific courts can take cognizance under the given acts 127
with a purpose, not as that of providing immunity to the companies128 but to balance the
industrial process and the environment, so that it does not upset the economic growth129.
Moreover, the Supreme Court discouraging courts to take up matters under special acts
without adherence to due process in Babulal v. Aditya Birla130, reaffirmed in Bandhua Mukti
Morcha v. Union of India131 and Subhash Kumar v. State of Bihar132 said:
In the case in hand the right of filing private complaint is clearly there but by the special
Acts the right has been subjected to the restriction on the lines of Section 197 of the
Cr.P.C. and previous written sanction of the State Boards has been made a condition
precedent to the cognizance of the offences being taken by Courts. This safeguard has a
rational basis. Without it industrialists could be vexed day in and day out be being
dragged to the criminal Courts for variety of reasons even unconnected with the indication
of the law.
Since there are no evidences on record prove that there has been air or water pollution and
secondly even the due process for taking cognizance wherein if a complaint has to be filed it
has to be made by a Board or any officer authorized in this behalf by it, which has hasnt
been adhered to and therefore cognizance cannot be taken133, thereby this court should rely
upon what has been said in Tarun Patel v. Chairman, Gujarat Pollution Control Board134 ,
It is settled law that unless there is a specific power in the Statute enabling the authority
to do so, it cannot levy penalties or damages with reference to the general power under
125

The Air (Prevention And Control Of Pollution) Act, 1981, 22.


Paramjeet Singh Kalsi v. Ministry of Environment and Forest, 2015 S.C.C. OnLine N.G.T. 109.
127
The Air (Prevention and Control Of Pollution) Act, 1981 43.
128
Babulal v. Aditya Birla, 1986 (1) Crimes 248.
129
Techno Science Issues in Water Pollution Litigations: The Supreme Court Approach, 1 R.M.L.N.L.U.J.
(2008) 104, p.115.
130
Babulal v. Aditya Birla, 1986 (1) Crimes 248.
131
Bandhua Mukti Morcha v. Union of India, (1984) 3 S.C.C. 161.
132
Subhash Kumar v. State of Bihar, (1991) 1 S.C.C. 598, p.604.
133
Om Prakash Dhanuka v. The State of Bihar, Criminal Miscellaneous No. 55763 of 2006.
134
Tarun Patel v. Chairman, Gujarat Pollution Control Board 2014 S.C.C. OnLine N.G.T. 1383.
126

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- Memorandum for the Petitioners-

Section 31A of the Air Act or Section 33A of Water Act.


3.2.3. Criminal violations under the Section 378 of the Indian Penal Code, 1860
From the respondents it is humbly submitted that in the present facts and circumstances there
are not sufficient evidences to bring to the table that M/s Marvolo Mining Company had not
committed illegal mining as suggested by merely by the media reports which is not
permissible as a primary evidence135 and the report of SEIAA was made only within 2 days
which puts its credibility under the scanner. Moreover, Blocks D were over mined only as a
matter of mistake of fact and taking into consideration that since it is a well settled principle
that Doctrine of Public Trust136 per se provides that certain resources like air, sea, waters and
forests are of such great importance and therefore are subject of state ownership137 and
thereby are the property of state. Since M/s Marvolo Mining Company has not committed
any kind of over exploitation of the resource in pursuance of their own private interests as the
company was granted a lease to merely just extract the iron ore and indeed the iron produce
was to eventually go to the Govt. itself, thereby the provisions of Theft enumerated under the
IPC,1860 cannot be called in to force since there is no change in possession which is a pre
requisite . Since, no of the basic essential ingredients of theft are not fulfilled thereby, one
cannot contend that theft has been committed. The company cannot be even held liable under
for the offence of public nuisance138 since such operations had been given public approval,
which was a part of the clearance of the MoEF139. The petitioners humbly plead that the
company cannot be sued under IPC, 1860 since it has been held that general provision ceases
to have for the moment there is a special provision as affirmed in Chhotelal Choudhury and
Ors. Vs. State of West Bengal:
If according to the prosecution extraction of brick earth or mines is an offence under
Sections 21(1) and 21(2) of the Mines and Minerals (Regulation and Development) Act,
1957, then obviously prosecution under Section 379 of the Indian Penal Code or for that
matter under Section 447 of the Indian Penal Code is total misnomer.
Moreover, criminal prosecution under Section 379 of the IPC140 will amount to double
jeopardy141, since there are different key ingredients for theft and mining in contravention to
Section 4 of the Mines and Minerals Act are per se same, therefore since therefore the Double
135

Laxmi Raj Shetty v. State of T.N., (1988) 3 S.C.C. 319, p.346.


Centre for Public Interest Litigation v. Union of India, (2012) 3 S.C.C. 1.
137
M.C. Mehta v. Kamal Nath and Ors., (1997) 1 S.C.C. 388.
138
The Indian Penal Code, 1860 268.
139
Environment Impact Assessment, 2011, Appendix VII, 5, 33.
140
The Indian Penal Code, 1860 379.
141
Maqbool Hussain v. State of Bombay, A.I.R. 1953 S.C. 325.
136

18 | P a g e

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- Memorandum for the Petitioners-

Jeopardy principle142 which will be violation of Article 20(2) of the Constitution of India,
1950143.
Similarly, Section 277 and Section 278 of the IPC, 1860 are also not applicable because
firstly, there is no evidence to prove that there was any such act to make the atmosphere
noxious to health or results in fouling water of public spring or reservoir. In addition to this,
in Om Prakash Dhanuka v The State of Bihar144, the court held that if there are special
enactments viz. for prevention of pollution of water and there are penal provisions for any
contravention of the provisions of the aforesaid Acts, summoning the petitioner for the
offence under IPC, 1860 appears to be an abuse of the process of the Court. This was
reaffirmed in Hiralal Bonka and Ors. v. P.S. Bose and Ors.145, wherein the court specified
that where it was held that when the offences allegedly falls under specific provision of any
special Act then inclusion of several sections of the Indian Penal Code together with the
provisions of the Special Act is illegal because the offences said to have been committed
under the Indian Penal Code are only ancillary to the offence.
3.2.4. Criminal violations under the Environment (Protection) Act, 1986
The Environment Act, 1986 is a umbrella legislation and thereby it acts in furtherance to
protect from having an imbalance in the ecosystem and prescribes rules to protect the
standards of the quality of air, water and soil146 and also prevents emission or discharge of
effluents beyond the allowable limits of concentration of various environmental pollutants for
an area147. In the present facts and circumstances, M/s Marvolo Mining Company had got a
clearance from MoEF148 which include EIA and Rehabilitation scheme and the requisite due
process was followed, there is no violation of any procedure or rights 149. Moreover there
exists nothing on record to show that considerable damage so as to attract criminal liability
has been done to the environment and indeed there exists no way for application of
the relevant environment and forest statutes150 by which the mining sector per se is
regulated151. From the fact sheet at hand which is further substantiated that it is nowhere
mentioned that has been air pollution viz. the concentration and presence of pollutants in the
142

Charles J. in Reg. v. Miles, 24, Q.B.D. 423.


Avtar Singh v. State of Punjab, A.I.R. 1965 S.C. 666.
144
Om Prakash Dhanuka v. The State of Bihar, Criminal Miscellaneous No.55763 of 2006.
145
Hiralal Bonka and Ors. v. P.S. Bose and Ors., 1993 (2 C.H.N.) 15 : 1994 Tax. L.R. 712.
146
The Environment (Prevention) Act, 1986 5.
147
The Environment (Prevention) Act, 1986 7.
148
Moot Proposition, 4.
149
Orissa Mining Corpn. Ltd. v. Ministry of Environment & Forest, (2013) 6 S.C.C. 476.
150
Govt. Of Andhra Pradesh and Ors. v. Obulapuram Mining Company PVT. Ltd. and Ors.,(2011) 12 S.C.C.
491.
151
M.C. Mehta v. Union of India, (2009) 6 S.C.C. 142, p.152.
143

19 | P a g e

-Arguments Advanced -

- Memorandum for the Petitioners-

air is above the permitted limit and even water pollution coupled with soil erosion that has
been caused, thereby there has been total adherence to the Act- Mining after the requisite
approval from MoEF, which as a procedural perquisite includes EIA and rehabilitation
scheme.152
M/s Marvolo Mining Company cannot be subjected to trial since as per, a court cannot take
the cognizance of this unless the Central Government or any authority or officer authorized in
this behalf by that Government makes a complaint or unless a person gives a notice of not
less than sixty days, in the manner prescribed, of the alleged offence and of his intention to
make a complaint, to the Central Government or the authority or officer authorized as
aforesaid153. The court should act in furtherance of what has been said in M.S. Ahlawat v.
State of Haryana154 that,
The Supreme Court cannot altogether ignore the substantive provisions of a statute
and pass orders concerning an issue in furtherance of Article 142 of the Constitution
which can be settled only through a mechanism prescribed in another statute.
Keeping in mind that since there exists nothing on record to prove that any kind of violation
has been done, initiating a criminal proceeding will kill the very essence of having such Antipollution laws as it will result in undue stalling of justice.
3.3. That the allege violations are mere contractual violations and not criminal
violations.
As it has been established that there has been no violation of any statute by the Marvolo
Mining Company, no criminal liability can be affixed on the company, and no registration of
a criminal case is required. At best the allegations put forth by the respondents, however
unsubstantiated constitute only contractual violation of the Mining Lease. The High Courts
and the Supreme Courts are not the adequate forums to listen to contractual disputes and that
too in a PIL. Also, it is settled practice of the court to decide no more than what is absolutely
necessary for the decision of the case.155 Thus, the court shall not delve into the issue of
contractual violations and shall dispose of the present matter accordingly.

152

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


The Environment (Prevention) Act, 1986 19.
154
M.S. Ahlawat v. State of Haryana, (2000) 1 S.C.C. 278.
155
M.M. Pathak v. Union of India, A.I.R. 1978 S.C. 803.
153

20 | P a g e

-Prayer-

- Memorandum for the Petitioners-

PRAYER
In the light of arguments advanced and authorities cited, the Petitioners humbly submit
that the Honble Court may be pleased to adjudge and declare that:
1. The National Green Tribunal is not vested with any suo motu powers
whatsoever and thus the order of NGT granting an injunction against further
mining is liable to be set aside by the honourable court.

2. The Public Interest Litigation filed before the High Court of East Pradesh was
filed without any locus standi and was beyond jurisdiction of the court and
thus shall be dismissed.

3. There has been no criminal breach of mining license by M/s. Marvolo Mining
Company and thus no criminal case shall be instituted against the company.

4. The New Mining Deal, 2015 permitting mining activities in the area, is
constitutionally valid and does not violates the fundamental or statutory rights
of citizens and that mining in the area is not against the principles of
environmental safety.

Or any other order as it deems fit in the interest of equity, justice and good
conscience.
Sd/(Counsels for the Petitioners)

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