NEHU2016/03-D

NEHU NATIONAL MOOT COURT COMPETION, 2016

SAVE SOUTH WEST (SSW) VS SOMAVISHU AND OTHERS
IN THE HONBLE SUPREME COURT
ARTICLE 32 OF THE CONSTITUITON
WRIT PETITION NO../2016

SAVE SOUTH WEST (SSW).......PROSECUTOTION

VS
SOMAVISHU AND OTHERS.........DEFENDANT

NEHU NATIONAL MOOT COURT COMPETITION, 2016

MEMORIAL ON BEHALF OF THE DEFENDANTS

COUNSEL APPEARING ON BEHALF OF THE DEFENDANTS

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TABLE OF CONTENTS:
NAME:
1. INDEX OF AUTHORITY
I.
List of abbreviations.
II.
List of statutes.
III.
Lists of books and articles referred
IV.
Lists of internet sites
2.
3.
4.
5.
6.

STATEMENT OF JURISDICTION
STATEMENT OF FACTS
ISSUES INVOLVED
SUMMARY OF ARGUMENTS
BODY OF ARGUMENTS.
i.
Issue 1
ii.
Issue 2
iii.
Issue 3
7. PRAYER

PAGE NO:
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INDEX OF AUTHORITY.
I .LIST OF ABBREVIATIONS
PIL

Public Interest Litigation

Govt.

Government

NGO

Non Governmental Organisation

Corp.

Corporation

NGT

National Green Tribunal

Honble

Honourable

SC

Supreme Court

SCC

Supreme Court Cases

v.

Versus

Art.

Article

II. LIST OF STATUTES.

Constitution of India
Environmental Protection Act
The Indian Forest Act, 1927
The Forest (Conservation) Act, 1980
The Scheduled Tribes and other Traditional Forest Dwellers Act, 2006
The Mines and Minerals Act, 1957
The Factories Act, 1948
Code of Criminal Procedure, 1973
Indian Penal Code, 1860
Water (Prevention And Control Of Pollution) Act 1974
Stockholm Declaration, 1972

II. LISTS OF BOOKS REFERRED

1. Constitution of India V.N. Shukla

2. Constitution of India M.P. Jain
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3. Law of Torts R.K. Bangia
4. Environmental Law Dr. Sukanta K. Nanda
5. Environmental Law - Dr. S. C. Tripathi
6. Environmental Law - Dr. S.R. Myneni
7. Law of Evidence Batuk Lal
8. Law of Evidence- Ratan lal & Dhiraj Lal

IV. LIST OF INTERENT SITES

1 www.pollutionissues.com
2
3
4
5

www.encyclopedia.com
www.legalservicesindia.com
www.indiankanoon.com
www.manupatra.com

STATEMENT OF JURISDICTION

The Honble Supreme Court of Somavishu has the jurisdiction to entertain the PIL filed by the
Save South West NGO under Article 32(1) & (2) of the Constitution.

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STATEMENT OF FACTS
1. The region of Somavishu.
Somavishu is a country of many religions and ethnicity which has the shared history
of living together. It has 25 states and 9 union governed territories and each state
boundary is generally made either on the basis of regional language or regional

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ethnicity .Even then there is no clear division of the masses and each state has some
elements of language and ethnic mixture
2. The South West Region of Somavishu.
The South West Region of Somavishu is a region of language and ethnical diversity
like all other region of Somavishu and it consists of 9 states. This region of Somavishu is
known for its scenic natural beauty, diversified cultures and diversified cuisine. This
region is mostly comprised of many communities of tribal populations living there from
times immemorial. This whole region is comprised of hills, forests and many fast flowing
rivers. Though the area of this region comprised of only 5% of the total geographical area
of Somavishu but it consists of more than 30% of its forest cover.
3. The Region of Suhamo.
Suhamo was situated on the high altitudes in the central part of the Mutalia. It is the
origin point of three rivers of the state Mutalia; one is Sinasi, second is Rikang and third
is Purug. These rivers emanates from the lake Sulaom in three different directions. Lake
Sulaom was situated on the highest altitudes of the southwest region. Though this lake
was part of the district Suhamo but it remained uninhabitable in winter due to its
geographical location. Almost all the cities of the state Mutalia were situated on one or
other of these three rivers. Suhamo was situated on the river Sinasi and this river is one of
the sources of water for Suhamo city.
4. Suhamo and its Population.
The district of Suhamo is large and is comprised different communities of tribal
population.
The people of Suhamo and Mutalia have worshipped the Lake Sulaom and the three
rivers emanating from it. Around one tenth of the local population makes an annual
pilgrimage to Lake Sulaom on a day that generally falls in May. There is also a tradition
that people make replica of Lake Sulaom and these three rivers in local residential units
and perform some rituals there also. This day has been generally declared a holiday by
the State Government.
Only Around 80% of the people of Suhamo live in the district headquarter of Suhamo
city which is the first human habitation in the course of river Sinasi. The people of
Suhamo are dependent on river Sinasi for water in day to day purposes and other natural
lakes and springs. The rivers and Lake Sulaom means a lot to them both in temporal and

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religious senses. Only 30% population of Suhamo city has tap water connectivity and rest
70% population directly use the water of river Sinasi for their day to day purposes.
The fish X of river Sinasi is one of the basic source of protein and other important
nutrients of the population of Suhamo city. Fish X are the specificity of only the three
rivers of the region that emanate from Lake Sulaom. Except the water of rivers Sinasi,
Rikang and Purug, no other rivers of the region have fish X in such abundant quantity.
The literacy rate of people of Suhamo city is only 25%.
5. Government plan of excavation and Steel industry
In 1980, the central government of Somavishu conducted a geological survey in
the whole of the country to assess the presence of natural resources. This survey indicated
the presence of iron and other valuable minerals in the south west region of the country
which is quite necessary for the people of any country. In the subsequent years, the
planning has been made to extract these natural resources. As per this plan, the
excavation was to start from a district Suhamo in the state Mutalia and then subsequently
it was to be expanded in other districts and states of this region. This plan was made by
the high level committee constituted by the Central Government of Somavishu and it was
consisted of eminent engineers, environmentalist and other notable personalities of the
region. This plan has also indicated the probable environmental consequences and
suggested that environmental effects of the excavation in Suhamo should be appraised
before undertaking any expansion of the excavation activities in the region.
According to the above mentioned plan, the central government of Somavishu started
excavation of these mineral resources in district Suhamo in 1990. Necessary forest lands
were cleared to make this excavation possible. In addition to the above mentioned plan,
an iron and steel industry was also established in 1997 to make steel and other related
materials from the extracted iron ores. The water of the river Sinasi has been diverted to
fulfil the demands of the water for this industry.
6. After the inception of excavation activities and establishment of steel and iron
industry.
The government has set up a water purification plant to treat the used water of steel and
convert this used water again in River Sinasi. However due to some unforeseeable
technical errors a few times the untreated water from the steel industry had been allowed

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to go into river Sinasi. The necessary forest areas have also been cleared to dump other
garbage resulting from this industry.
From 1998 to 2015, there has been reportedly 50 such instances where foul water from
the iron industry got merged in river Sinasi either on small or large scale. On such
occasions, the water of river Sinasi turned full of dead aquatic creatures, its colour
changed and it became full of bad odour. Nowadays, the people of Suhamo city depend
on the water from some natural springs or natural lakes that are located far away from the
city.
There has been increase in the number of water borne diseases in Suhamo city and
adjoining areas. From 2000 to 2015, there were 20000 reported cases of such diseases
only in Suhamo city and almost 1000 deaths have also been reported during such period
from these diseases.
This period has also witnessed substantial fall in the number of fish X in river Sinasi and
by 2015, these fishes have only been in vogue for their scant presence in Sinasi.
As per the published article in news paper based on the study of World
Environmental Forum (a reputed environmental NGO), the basic reason for these
diseases has been concluded as untreated water of iron industry into river Sinasi. This
study has also reportedly pointed out that the released water from water purification plant
lacks in essential component of mineral Y of original water of river Sinasi that is the
specificity of the rivers originating from Lake Sulaom. It has said that this may be the
one of the reasons for the extinction of Fish X from river Sinasi.
The water of other natural lakes and streams situated in other parts of district Suhamo has
also started to change its colour and taste from 2010 onwards and some of these lakes and
springs have also turned barren by 2014. This whole situation has created a great
existential threat for the people of Suhamo.
7. Government steps.
The central government of Somavishu with the help of state government of Mutalia has
come with the idea of supplying tap water to each and every household of Suhamo in
December 2014 and this has to be completed by end of 2017.
The Government of Somavishu has also appointed has also appointed two high level
committees in July 2014. First, to consider the chances of expansion of iron ore excavation
activities in other areas of Mutalia and whole south west and second, to study water quality
of river Sinasi and other adjoining water bodies and to look into any linkages between
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excavation activities and the establishment of the steel industry, and the alleged water
pollution and diminishing of stock of fish X.
8. Steps of Save South West a Local NGO
50% shortage in rainfall in this region during 2000 to 2014 may be the reason behind
all these Before the report of the committees could be submitted, a local NGO named
Save South West (SSW) in the hue and cry of the situation, has organized a protest
march on 10th August 2015 in Suhamo district against the environmental degradation of
the region and submitted a memorandum of demands to the District Magistrate. This
memorandum contained the following demands.
Firstly, all the excavation works should immediately stop in the district Suhamo and
no further expansion of such activities should be considered.
Secondly, the steel industry established in district Suhamo should be closed
immediately and no water should be taken from river Sinasi for any other purposes than
its traditional use.
Thirdly, the central and state governments should immediately prepare a plan for
restoration of natural pristine beauty of district Suhamo.
Fourthly, the government should pay compensation to the peoples or their nearest
relatives who have been affected by any of the water borne disease in Suhamo city since
the establishment of steel industry and also the government should provide nutritional
care free of cost to all the population of Suhamo city till the abundance of fish X in the
river Sinasi is achieved.
However, the state and central governments have denied these demands and asserted
that it will not stop any excavation or steel industry activities till it gets substantial
evidence of any linkages between these activities and environmental degradation. Both
the governments have considered that the global climate change and more than 50%
shortage in rainfall in this region during 2000 2014 may be the reason behind all these
environmental losses.

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ISSUES INVOLVED.
1. WHETHER THERE IS ANY LINKAGE BETWEEN THE ENVIRONMENTAL
LOSES AND DEGRADATION/POLLUTION AND THE EXCAVATION
ACTIVITIES AND ESTABLISHMENT OF IRON AND STEEL INDUSTRY?
2. WHETHER THE STATE AND THE CENTRAL GOVERNMENT SHOULD BE
RESPONISBLE FOR THE RESTORATION OF NATURAL PRISTINE BEAUTY
OF SUHAMO?
3. WHETHER THE STATE AND THE CENTRAL GOVERNMENT SHOULD PAY
COMPENSATION AND FREE NUTRITIONAL CARE FOR THE PEOPLE IN
SUHAMO WHO WERE AFFECTED?

SUMMARY OF ARGUMENTS
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1. WHETHER THERE IS ANY LINKAGE BETWEEN THE ENVIRONMENTAL LOSES
AND DEGRADATION/POLLUTION AND THE EXCAVATION ACTIVITIES AND
ESTABLISHMENT OF IRON AND STEEL INDUSTRY?
Ans. No, there is no linkage between the environmental loses, degradation/pollution and the
excavation activities and establishment of iron and steel industry as there is no substantial
evidence of any linkages between those activities . Further no scientific report was referred
to prove the linkage.
2. WHETHER THE STATE AND THE CENTRAL GOVERNMENT SHOULD STOP
ALL EXCAVATION ACTIVITIES AND CLOSE THE STEEL INDUSTRY AND BE
RESPONISBLE FOR THE RESTORATION OF NATURAL PRISTINE BEAUTY OF
SUHAMO?
Ans. No, the state and the central government should not stop those activities or be
responsible for the restoration of natural pristine beauty of Suhamo. It has taken enough
steps to prevent environmental degradation and to undo the existential threat. The mining
project does not unjustifiably violate any right as public interest was taken into
consideration. Since the linkage cannot be established, so the claims of fundamental rights
violations are uncertain. Moreover no tortious liability can be claimed against the govt. for
public nuisance or deforestation of non-reserved forest as it is not in violation of the
provisions of The Forest Act.
3. WHETHER THE STATE AND THE CENTRAL GOVERNMENT SHOULD PAY
COMPENSATION AND FREE NUTRITIONAL CARE FOR THE PEOPLE IN SUHAMO
WHO WERE AFFECTED?
Ans. No, the govt is not liable to compensate or provide free nutritional care. The
Government has taken sufficient measures. The instant case is not maintainable since the
linkage between the excavation activities and industrialisation with the environmental
losses has not been established and hence lays no liability.

BODY OF ARGUMENTS
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ISSUE 1:
1. WHETHER THERE IS ANY LINKAGE BETWEEN THE ENVIRONMENTAL LOSES
AND DEGRADATION/POLLUTION AND THE EXCAVATION ACTIVITIES AND
ESTABLISHMENT OF IRON AND STEEL INDUSTRY?

There is no substantial evidence of any linkages between these activities and

environmental degradation

Mining is a global industry, and not every country has high-grade, large, exceptionally profitable
mineral deposits, and the transportation infrastructure to get the mined products to market
economically. Modern mining is an industry that involves the exploration for and removal of
minerals from the earth, economically and with minimum damage to the environment.1
Mining is important because minerals are major sources of energy as well as materials such as
steel and iron. Mining is necessary for nations to have adequate and dependable supplies of
minerals and materials to meet their economic and Defence needs at acceptable environmental,
energy, and economic costs.2
Some of the factors affecting global mining are environmental regulations; access to land
believed to contain valuable ore, etc.
In the instant case, the plan of excavation was made by a high level committee constituted by the
central govt. of Somavishu and it was constituted of eminent engineers, environmentalist and
other notable personalities of the region. Moreover it was proposed that the effects of such
excavation should be appraised before undertaking any further excavation, and therein after, it
was found that such activities would not deteriorate the environment.3
1 Mining- water effects-environmental pollution- www.pollutionissues.com
2Mining facts-www.encyclopedia.com
3 Cline V American Aggregates Corp(474 N.E.2D 324(OLT 1984 15OHIO ST 3D 384)

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There may be linkage between excavation and industrialization, as well as ecosystem, but all the
industrial activities may not have such adverse impact to stop the industrialization and
excavation activities all together and thereby halt the progress of the nation. All developed
countries have developed through industrial activities, and developing countries are progressing
through industrial activities.
In the case of Cline v. American Aggregates Corp3, the defendant operated a quarry, and as
part of the process of extracting limestone, underground aquifers were dewatered. The plaintiff
on the neighbouring land alleged that this dewatered and polluted their wells .The trial court
granted summary judgment to the defendants on the authority of Franzier v Brown, which
allowed a land owner absolute use of water on their land despite ramification for neighbours
landowner. In this case it was held that only unreasonable use of water which may cause harm to
a proprietor of a neighbouring land shall be stopped. This case emphasis how the reasonable use
doctrine provided flexible standards well suited to addressing modern problems associated
with water usage.
In the case of North Shore City Council v. Auckland Regional council4, the New Zealand
Supreme Court while accepting the submission that Okura Catchment would necessarily have
significant adverse affect on the environment of Okura and the ecosystem deserve to be
safeguarded. The court did not accept that there would necessarily be significant adverse effect
of urbanization of environment of long bay cost or the marine life of the marine reserves.

1.2 No scientific report was referred to prove the linkage

In this case the petitioner has not produced any scientific data containing expert opinion as to
how the excavation activities and industrialisation are creating adverse effect in the area. The
data and reports produced by the plaintiff are based on news reports and report submitted by an
NGO which caused a situation of hue and cry.
4 North Shore City Council VS Auckland Regional council (1997NZRMA 59)

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1.2.1 Newspaper reports are not admissible as evidence.
The strongest objection to the admission of hearsay evidence is that the opponent has no
opportunity to cross-examine the original declarant5 If it is desired to make the matter contained
in it evidence, a person who can directly testify to such matter must be produced6 In the words of
the Supreme Court, a newspaper report is hear-say secondary evidence. It cannot be relied upon
unless evidence aliunde. Even where nobody has opposed the report, the party citing the report
would not be absolved of his obligation to prove the truth of its content7.
In the case of, Rattan Lal Soni vs. The State of Rajasthan8 and others, it was stated that a
report in a newspaper is only hearsay evidence.
In the instant case, the authenticity of such reports published in the newspaper has never been
examined and on the contrary the project of excavation and industrialisation have been initiated
by the defendants after proper study of the reports submitted by expert panel committees
constituted by the central govt of Somavishu . It initiated the work after obtaining clearance and
reports from the committee. The forest department or any other authority never alleged that the
defendants have violated any provision relating to forest act as well as environment protection
act. Therefore simply a bald allegation that a mining activity meant for expansion of national
economy shall wither the giant environment is absolutely bogus.
Moreover, the NGT is specially equipped to evaluate scientific claims apart from regular civil
claims due to the presence of scientific experts on the bench. With due respect to this Honble
Court, it is therefore submitted that the NGT is better situated than the SC to evaluate concerns
5 (NLRB v. Imparto Stevedoring Corp., 250 F 2d 767(1954); Colgrove v. Goodyear, 325 Mich.127, 37 N.W. 2d 779
(1949).[Duke Law Journal]

6 Mi Hawk v. King Emperor (1907) 4 LBR 121; Lal Singh v. The Crown (1924) LAH 396 Batuk Lal- The Law of
Evidence.

7 Ratanlal & Dhirajlal- the law of evidence

8 Rattan Lal Soni vs. The State of Rajasthan; 1994(1) WLC 679, 1993 WLN UC 194
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about the health and environmental consequences of the Mining Project .In fact, the Supreme
Court when faced with similar cases, in the past, has lamented the lack of separate, multi-faceted
environmental courts equipped with both judicial and scientific inputs. Thus, the Supreme Court
itself has recognised the value of the NGT to deal with such cases. Further, in various cases in
the past, the SC has had to refer scientific questions to special committees and expert bodies,
thus, delaying the resolution of dispute. It is submitted that an expeditious resolution of the
dispute is in the best interests of both parties. While the petitioners would like to seek certainty
with regard to their homes, livelihood and environment; the Defendants would like to seek
certainty about their investment at the earliest. Mining being a capital intensive process, the
Defendants submit that they will face enormous financial hardship if the case is not resolved
quickly as they have to make interest payments on loans. The Act provides that the NGT shall
endeavour to adjudicate upon the dispute within six months from the date of filing of application
or appeal. Therefore, for expeditious disposal of this case, NGT must be preferred.
In the case of Chemical Waste Management Inc V. Hunt9, the issue was raising barriers to the
free flow of interstate trade. A fee was imposed on out of state hazardous waste. One of the judge
explained that no state may attempt to isolate itself from a problem common to several states by
raising barriers to the free flow of interstate trade. The Chief Justice however opined that states
may avoid the risk to public health and environment by regulating the disposal hazardous waste.
Therefore in this case also effective measure may be taken and indeed The Central Government
has already contemplated to take effective measure for disposal of hazardous waste.
Here in this case the central govt has taken all precautionary measures for disposal of hazardous
waste and has contemplated to make it full proof so that there cannot be any adverse affect on the
ecosystem in accordance with the provision of the directive principle of state policy.
In light of the foregoing submission, the Defendant requests the Honble Court to dismiss
the petition as no linkage has been established on scientific grounds.

9 Chemical Waste Management ,Inc. v. Hunt(504 U.S 334,112 S.C.T 2009,34 ERC 1721,119 LED 2D121,60USlw
4433,22 ENVTL LKEP 20,909)

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ISSUE 2
WHETHER THE STATE AND THE CENTRAL GOVERNMENT SHOULD STOP ALL
EXCAVATION ACTIVITIES AND CLOSE THE STEEL INDUSTRY AND BE
RESPONISBLE FOR THE RESTORATION OF NATURAL PRISTINE BEAUTY OF
SUHAMO?

2.1 The state and the central govt have taken enough steps to prevent environmental
degradation
2.1.1 The Government has taken appropriate plans before it started excavation:
The plans of excavation were made by the high level committee constituted by the central
government of Somavishu and it was consisted of eminent engineers, environmentalist and other
notable personalities of the region. This plan has also indicated the probable environmental
consequences and suggested that environmental effects of the excavation in Suhamo should be
appraised before undertaking any expansion of the excavation activities in the region.
2.1.2 The Government of Somavishu has taken measures to undo any possible existential
threat that may arise:
The govt of Somavishu established water purification plant to treat the used water from the steel
industry and convert this used water again to the river Sinasi. Though the local news paper have
reported instances when untreated water from steel industry had been allowed to go into river
Sinasi. But government has accepted this fact and pleaded some technical reasons that had been
out of their control.
As due to excavation and industry the natural lakes and streams situated in other parts of district
started to change its colour and taste from 2010 onwards and some of these lakes and springs
have also turned barren by 2014.The Central government of Somavishu with the help of state
Government of Mutalia has come with the idea of supplying tap water to each and every
household in Suhamo in December 2014 and this has to be completed by end of 2017.
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The government Of Somavishu has also appointed two high level committees in July 2014. First,
to consider the chances of expansion of iron ore excavation activities in other areas of Mutalia
and whole South west and second, to study water quality of river Sinasi and other adjoining
water bodies and to check the alleged water pollution and diminishing stock of Fish X.
The abovementioned initiatives taken by the government shows its concern in safeguarding its
people. Moreover the government has left no stone unturned to make sure that no harm is caused
but there are some technical errors or defaults which might have occurred even after due care
has been taken. So the govt cannot be held liable merely on the grounds of technical error
because there are certain exceptional circumstances which might happen without prior
apprehension and such kind of error, if any, is supposed to be considered under the General
defences in tort for Inevitable Accident.
According to Sir Frederick Pollock, it does not mean absolutely inevitable, but it means not
avoidable by any such precaution as a reasonable man, doing such an act then and there, could be
expected to take.10 Therefore the govt. neither intended to injure the plaintiff nor could he avoid
the injury by taking reasonable care. 11
.
2.2 The mining project does not unjustifiably violate any right
The Petitioners may contend that the Mining Project violates several rights. On the contrary, the
Defendants submit that, the Mining Project aids also public at large under Art. 21 of the
Constitution in benefit of the Tribal Communities It is now well settled that the word life as
employed by Article 21 takes in its sweep not only the concept of mere physical existence, by
also all finer values of life including the right to work and livelihood.12 In the instant case, the
10 The law of Torts: a treatise on the principles of obligations arising from civil wrongs in the Common Law (4th
Ed.) [1886]

11 Law of Torts- R.K.Bangia

1212Article 21 of the constitution of India and right to livelihood- Neepa Jani- Visiting Faculty- Sri L.A. Shah Law
College and I.M. Nanavati Law College, Ahmadabad.

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purpose of the Mining Project is evident development of the entire state by facilitating
employment opportunities. Thus, the Defendants submit that the Mining Project must be seen as
facilitating the right to life under Art. 21 of the general public at large.
2.2.1 The public interest was taken into consideration
Public interest means a subject matter in which the rights of the public or section of the public is
interested to the means of concern which is advantageous to people as a whole. The excavation
activity does not violate the right to wholesome environment. It is submitted that the Mining
Project does not violate the right to environment since the Project is subject to stringent
regulations and over sighted by competent bodies that ensure change in environment, if any, is
not harmful. In any case, the right to environment must be balanced with other interests and such
a balance is necessarily a question of policy that cannot be interfered with lightly.
In the instant case the principle of sustainable development was complied with.
Sustainable Development means an integration of development and environment imperative it
means development in harmony with environmental consideration. To be sustainable,
development must possess both economic and ecological sustainability. It is a development
process where exploitation of resources, direction of investment, orientation of technology
development and institutional changes are all in harmony. Sustainable development also implies
local control over the resource use, and is the only path for conserving and promoting socioeconomic wellbeing in a democratic form.
In case of AP Pollution Board Vs Prof. M.V.Nayudu it was observed that the policy should be
such that the environment and ecology should not be disturbed at the same this should not hinder
development, the government has taken the same position in its policy towards the mining leaseagreement.
Here in this case it is submitted that the defendants has acted with utmost care in the formulation
and the execution of its policies. The policies of the government are best on reason and
reasonable care has been taken so as to pave the way for development.

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2.2.2 Since the linkage cannot be established, so the claims of fundamental rights violations
are uncertain
The jurisdiction under Art. 32 can be invoked only when Fundamental Rights are violated. It has
been held that if a right, other than a fundamental right is claimed to be violated then such
questions can be addressed only in the appropriate proceedings and not on an application under
Art. 32. In the instant case, it is submitted that since the linkage between those activities and
environmental pollution could not be established, no fundamental rights of the Petitioner or the
Tribal Communities have been violated as Prosecutors claim was not backed by any scientific
report. Moreover it has been already established that no linkage could be drawn between those
activities and the environmental degradation. Hence the claim of fundamental rights violation is
not maintainable.
Moreover the claim of individual fundamental rights violation due to the excavation and the
establishment of industries is not maintainable. It is not a case of the petitioner that the central
government has forcibly acquired the land or property of any individual for the excavation and
establishment of industry. No liberty of the citizen has been curtailed. There is no question of
deprivation of equality of opportunity in any manner. The excavation and establishment of the
industry will boost the economy of the state in general and local resident of the area in particular.
These activities will generate employment opportunities to the locals. Since there is no violation
of fundamental rights this writ in the form of PIL is not maintainable.
In the case of Northern Corporation vs. Union of India13, it was held that
11. However, there is a far more serious objection in entertaining this application under Article
32 of the Constitution; Article 32 of the Constitution guarantees the right to move the Supreme
Court for enforcement of fundamental rights. If there is breach of the fundamental rights, the
petitioner can certainly have recourse to Article 32 of the Constitution provided other conditions
are satisfied. But we must, in all such cases, be circumventive of what is the right claimed.
In this case, the petitioner as such has no fundamental right to claim the goods imported except
in due process of law. Now in the facts of this case, such clearance can only be made on payment
13Northern Corporation vs. Union of India, (1990) 4 SCC 239
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of duty as enjoined by the Customs Act.
In a particular situation whether customs duty is payable at the rate prevalent on a particular date
or not has to be determined within the four corners of the Customs Act, 1962. The petitioner has
no fundamental right as such to claim any goods imported without payment of duties in
accordance with the law.
There is procedure provided by law for determination of the payment of customs duty. The
revenue has proceeded on that basis. The petitioner contends that duty at a particular rate
prevalent at a particular date was not payable. The petitioner cannot seek to remove the goods
without payment at that rate or without having the matter determined by the procedure envisaged
and enjoined by the law for that determination. The petitioner without seeking to take any relief
within the procedure envisaged under the Act had moved to the Court for breach of fundamental
right. This is not permissible and should never be entertained.
In a matter of this nature where liability of a citizen to pay a particular duty depends on
interpretation of law and determination of facts and the provision of a particular statute for which
elaborate procedure is prescribed, it cannot conceivably be contended that enforcing of those
provisions of the Act would breach fundamental right which entitle a citizen to seek recourse to
Article 32 of the Constitution.
Therefore, it can be clearly implied that the relief under Article 32 of the Constitution is wholly
inappropriate in the facts and the circumstances of this case. It has further to be reiterated that for
enforcement of fundamental right which is dependent upon adjudication or determination of
questions of law as well as question of fact without taking any resort to the provisions of the Act,
it is not permissible to move this Court on the theoretical basis that there is breach of the
fundamental right. Whenever a person complains and claims that there is a violation of law, it
does not automatically involve breach of fundamental right for the enforcement of which alone
Article 32 of the Constitution is attracted. It appears that the facts of this nature require elaborate
procedural investigation and this Court should not be moved and should not entertain on these
averments of the Article 32 of the Constitution. This position is clearly well settled, but
sometimes we are persuaded to accept that an allegation of breach of law is an action in breach
of fundamental right.
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In the case of Ram Jawaya Kapur vs. State of Punjab14, AIR 1955 SC 549
Dismissing the writ petition, a five Judges Constitution Bench, headed by the then Chief Justice
observed:As in our view the petitioners have no fundamental right in the present case which can be said
to have been infringed by the action of the Government, the petition is bound to fail on that
ground. This being the position, the other two points raised do not require consideration at all. As
the petitioners have no fundamental right under Article 19(1) (g) of the Constitution, the question
whether the Government could establish a monopoly without any legislation under Article 19(6)
of the Constitution is altogether immaterial.
Again a mere chance or prospect of having particular customers cannot be said to be a right to
property or to any interest in an undertaking within the meaning of Article 31(2) of the
Constitution and no question of payment of compensation can arise because the petitioners have
been deprived of the same. The result is that the petition is dismissed with costs.
In the case of Hindi Hitrakshak Samiti vs. Union of India15, (1990) 2 SCC 352, a similar
question relating to the maintainability of the writ petition under Article 32 of the Constitution
came for consideration before a three Judges Bench of Supreme Court for the enforcement of
any Government policy. It was observed that in order to establish the violation of fundamental
right, the Court has to consider the direct and inevitable consequences of the action which is
sought to be remedied or the guarantee of which is sought to be enforced. Where the existence of
fundamental right has to be established by acceptance of a particular policy, or a course of action
for which there is no legal compulsion or statutory imperative and on which there are divergent
views, the same cannot be sought to be enforced by Article 32 of the Constitution.
In the case of UjjamBai vs. State of U.P16, AIR 1962 SC 1621
14 Ram Jawaya Kapur vs. State of Punjab, AIR 1955 SC 549
15 Hindi Hitrakshak Samiti vs. Union of India, (1990) 2 SCC 352
16 UjjamBai vs. State of U.P, AIR 1962 SC 1621

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It was observed that Article 32 guarantees the right to a constitutional remedy and relates only to
the enforcement of the rights conferred by Part III of the Constitution. Unless a question of the
enforcement of a fundamental right arises, Article 32 does not apply. There can be no question of
the enforcement of a fundamental right if the order challenged is a valid and legal order, in spite
of the allegation that it is erroneous. The court has, therefore, come to the conclusion that no
question of the enforcement of fundamental right arises in this case and the writ petition is not
maintainable.

In the case of DM Wayanad Institute Of Medical Science Vs Union Of India(Writ

Petition(C) No 448 Of 2015 19 ,the Supreme Court of India re-visited the case of Priyadarshini
Dental College and Hospital v. Union of India and Ors.,(2011) 4 SCC 623,Unnikrishnans
Case,1993(1) SCC 645,Northern corporation v. Union of India (1990) 4 SCC
239(supra),Kanubhai Brahnbhatt v. State of Gujarat, AIR 1987 SC 1159,Ram Jawaya Kapur v.
State of Punjab, AIR 1955 SC 549,Hindi Hitrakshak Samiti v. Union Of India(1990) 2 SCC
352( supra),J.Fernandes and company v. DY. Chief Controller Of Imports and Exports(1975) 1
SCC 716,UJJAM BAI v. STATE OF UP,AIR 1962 SC 1621 and held that under article 32 of the
constitution the supreme court is not supposed to go into findings of facts into findings of facts
recorded by the authorities(govt) and to come to a different conclusion. Moreover, having regard
to the law settled by constitution Bench of this court in number of decisions, in our considered
opinion, the rights so claimed by the petitioner are not fundamental rights; hence the same cannot
be agitated directly before this Court under article 32 of the constitution.
According to the Constitution, the fundamental rights may be summarized as follows
1

Right to equality (Article 14-18)

Right to freedom (Article 19-22)

DM Wayanad Institute Of Medical Science Vs Union Of India(Writ Petition(C) no 448 of 2015 Priyadarshini
Dental College and Hospital VS Union of India and Ors.,(2011) 4 SCC 623,Unnikrishnans Case,1993(1) SCC
645,Northern corporation VS Union of India (1990) 4 SCC 239,Kanubhai Brahnbhatt vs. State of Gujarat, AIR
1987 SC 1159,Ram Jawaya Kapur Vs State of Punjab, AIR 1955 SC 549,Hindi Hitrakshak Samiti VS Union Of
India(1990) 2 SCC 352,J.Fernandes and company VS DY. Chief Controller Of Imports and Exports(1975) 1 SCC
716,Ujjam Bai Vs State Of U.P.,AIR 1962 SC 1621
19

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3

Right against exploitation (Article 23-24)

Right to freedom of religion (Articles 25-28)

Cultural & educational rights (Articles 29-30)

Right to Property (Article 31)

Right to constitutional remedies (Article 32).

But, Right to property was removed from the list of the Fundamental Rights by the 44th
Constitution amendment Act, 1978 and after amendment; it was made legal right under article
300-A in part-12 of the constitution.
Hence for the enforcement of fundamental rights aforementioned once can approach the
Supreme Court but in this case none of the fundamental rights guaranteed in the constitution has
been violated.
Although there are directive Principles, no such directive principles has been violated because
Directive principles deal with social order for promotion of welfare of the people by providing
equal justice and free legal aid, organization of village Panchayat, right to work, to education,
participation of workers in management of industry, civil code for the citizens, child care,
nutrition, etc. The state has taken all endeavours to implement the directive principles of state
policies. It is not a case that the state has not attempted to protect and improve the environment
or to safeguard the forest and wild life of the country.
Government has insured the welfare of its citizen by taking all adequate and preventive measures
prior to and during the process of excavation and establishment of industrialization as stated in
facts of the case.

2.2.2 No tortious liability can be claimed against the govt.

2.2.2.1 The govt. cannot be held liable under Negligence.
As per the fact sheet, the govt of Somavishu established water purification plant to treat the used
water from the steel industry and convert this used water again to the river Sinasi. Though the
local news paper have reported instances when untreated water from steel industry had been
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allowed to go into river Sinasi. But government has accepted this fact and pleaded some
technical reasons that had been out of their control.
As due to excavation and industry the natural lakes and streams situated in other parts of district
started change its colour and taste from 2010 onwards and some of these lakes and springs have
also turned barren by 2014.The Central government of Somavishu with the help of state
Government of Mutalia has come with the idea of supplying tap water to each and every
household in Suhamo in December 2014 and this has to be completed by end of 2017.
The government Of Somavishu has also appointed two high level committees in July 2014. First,
to consider the chances of expansion of iron ore excavation activities in other areas of Mutalia
and whole South west and second, to study water quality of river Sinasi and other adjoining
water bodies and to check the alleged water pollution and diminishing stock of Fish X.
The abovementioned initiatives taken by the government shows its concern in safeguarding its
people. Moreover the government has left no stone unturned to make sure that no harm is caused
but there are some technical errors or defaults which might have occurred even after due care
has been taken. So the govt cannot be held liable merely on the grounds of technical error
because there are certain exceptional circumstances which might happen without prior
apprehension and such kind of error, if any, is supposed to be considered under the General
defences in tort for Inevitable Accident.
According to Sir Frederick Pollock, it does not mean absolutely inevitable, but it means not
avoidable by any such precaution as a reasonable man, doing such an act then and there, could be
expected to take17.
Therefore the govt. neither intended to injure the plaintiff nor could he avoid the injury by taking
reasonable care18.
2.2.2.2 The people of Somavishu are liable for Negligence:
17 [The law of torts: a treatise on the principles of obligations arising from civil wrongs in the common law (4th
Ed.) { 1886}]

18 Ibid.
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The govt. in this case cannot be held liable for Negligence as the people of south-west region of
Somavishu are themselves liable under Negligence.
Negligence has been defined as Failure to exercise the standard of care which the doer as a
reasonable man should, by law, have exercised in the circumstances. In general there is a legal
duty to take care where it was or should have been reasonably foreseeable that failure to do so
was likely to cause injury
As per the fact sheet, 70% population of the Suhamo city directly use the water of river Sinasi
for their day to day purposes and they are mostly dependant on it. Moreover, it is to be observed
that the local population visits the lake for religious purpose in gigantic numbers every year for
pilgrimage which involves polluting the water through immersion of idols and ashes of the dead
bodies which has been happening since time immemorial.
Similarly instances of such pollution cases where idols are immersed and disposal of ashes in the
river water can be drawn from the Ganga pollution case where the Allahabad high court has
already banned immersion of idol in Ganga and Yamuna River in India.
It is also to be noted that the excavation and industrial activities started only a decade ago, but
those activities of idol immersion, and using the water of the river on daily basis has been
happening since times immemorial. Moreover, the instances of leakage into the river were just
few instances for which reasonable care was taken, but default had happened due to some
technical error which was beyond the purview of reasonable care.
So it would not be correct to blame the Govt. for such activities as the people themselves are
liable for the environmental loss that has been caused.
2.2.2.3 The govt. cannot be held liable for public nuisance:
The term Public nuisance is defined in section 268 of the Indian penal code, 186021 as follows:
A person is guilty of a public nuisance who does any act or is guilty of an illegal omission
which causes any common injury, danger or annoyance to the public or to the people in general
who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction,
danger or annoyance to persons who may have occasion to use any public rights.
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The pre-requisite of the offence of public nuisance is committing an act or an illegal omission,
but in the instant case the govt. cannot be held liable as the govt. has taken all the necessary steps
to undo the situation of existential threat. Rather the govt. has also appointed various
committees; firstly to make a study on the possibilities of excavation and to ascertain the amount
of loss that would be caused; secondly to study the quality of water along with finding any
linkage between those activities and the environmental loss also the depletion of Fish X.
2.3 Deforestation of non-reserved forest cannot be claimed as there is violation of the
provisions of The Forest Act
Reserved forest is an area mass of land duly notified under the provisions of Forest Act of India
or the State Forest Act having full degree of protection or the State Forest Act having full degree
of protection. In reserved forest all activities are prohibited unless permitted. Reserved forest is
notified under the Section 20 of the Indian Forest Act. [Act 16 of 1927] or under the reservation
provisions of the forest Acts of the [state govts of the Indian union].
So as per this provision of law, the govt has not encroached upon any reserved forest, so no right
has been violated in this regard.
In the light of the above reasons the government cannot be held liable for any tortious
liability, violation of any fundamental right or any other law of the country. So the question
of being liable for the restoration does not arise neither the excavation activities should be
stopped or the iron and steel industry should be closed; as no linkage could be established
between those activities.

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ISSUE 3
WHETHER THE STATE AND THE CENTRAL GOVERNMENT SHOULD PAY
COMPENSATION AND FREE NUTRITIONAL CARE FOR THE PEOPLE IN SUHAMO
WHO WERE AFFECTED?
3.1 The Government has taken sufficient measures
The govt of Somavishu established water purification plant to treat the used water from the steel
industry and convert this used water again to the river Sinasi. Though the local news paper have
reported instances when untreated water from steel industry had been allowed to go into river
Sinasi. But government has accepted this fact and pleaded some technical reasons that had been
out of their control.
As due to excavation and industry the natural lakes and streams situated in other parts of district
started change its colour and taste from 2010 onwards and some of these lakes and springs have
also turned barren by 2014.The Central government of Somavishu with the help of state
Government of Mutalia has come with the idea of supplying tap water to each and every
household in Suhamo in December 2014 and this has to be completed by end of 2017.
The government Of Somavishu has also appointed two high level committees in July 2014. First,
to consider the chances of expansion of iron ore excavation activities in other areas of Mutalia
and whole South west and second, to study water quality of river Sinasi and other adjoining
water bodies and to check the alleged water pollution and diminishing of stock of Fish X.
The abovementioned initiatives taken by the government shows its concern in safeguarding its
people. Moreover the government has left no stone unturned to make sure that no harm is caused
but there are some technical errors or defaults which might have occurred even after due care
has been taken. So the govt cannot be held liable merely on the grounds of technical error
because there are certain exceptional circumstances which might happen without prior
apprehension and such kind of error, if any, is supposed to be considered under the General
defences in tort for Inevitable Accident.

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According to Sir Frederick Pollock, it does not mean absolutely inevitable, but it means not
avoidable by any such precaution as a reasonable man, doing such an act then and there, could be
expected to take.19 Therefore the govt. neither intended to injure the plaintiff nor could he avoid
the injury by taking reasonable care20.
3.2 The instant case is not maintainable since the linkage between the excavation
activities and industrialisation with the environmental losses was not certain and
hence lies no liability :
No linkage was established between those activities and the environmental losses.
3.2.1

The mining project does not unjustifiably violate any right.

The excavation and establishment was done under the strict supervision of the committee
appointed to make sure that the principle of sustainable development has been complied with.
Moreover this industry will boost the economy of the state in general and local resident of the
area in particular. These activities will generate employment opportunities to the locals.
The state has taken all endeavours to implement the directive principles of state policies. It is not
a case that the state has not attempted to protect and improve the environment or to safeguard the
forest and wild life of the country. Therefore since no linkage was established as to the violation
of any rights in particular to fundamental rights; this writ in the form of PIL is not maintainable.

3.2.2

The govt. cannot be held liable for public nuisance

The pre-requisite of the offence of public nuisance is committing an act or an illegal omission,
but in the instant case the govt. cannot be held liable as the govt. has taken all the necessary steps
to undo the situation of existential threat.

19 The law of torts: a treatise on the principles of obligations arising from civil wrongs in the common law (4th
Ed.) [1886] [Supra]

20 Law of Torts- R.K.Bangia

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Since the govt is not liable under any tortious liability or any fundamental rights violation,
so the question of compensation does not arise.
3.3 The petition is not maintainable:
As earlier stated, the petition itself is not maintainable, since there is no violation of fundamental
right and a petition can be filed under article 32 of the constitution only when fundamental right
is violated. Moreover in this case the alternative remedy has not been exhausted, thus the writ
petition is not maintainable. That apart, the concept of sustainable development has to be
considered, the activities of the defendant/govt is in consonance with the environment protection
act, forest conservation act and mines and minerals act since there has been no violation of any
of the aforesaid acts, the petition is eligible to be rejected. The petitioner is raising mere
academic objection or scholarly objection, without obtaining any expert opinion. The court
should refrain from exercising its jurisdiction in a matter of policy decision of the govt. All
reasonable measures for the protection of environment and sustainable development have been
initiated by the defendants. Therefore the courts should dismiss the writ petition or in
alternative, declare that the defendants have not violated the fundamental rights of the indigenous
people and that the defendants are not causing environmental degradation.
For nuisance and negligence of the defendant if any, the petitioner ought to have approached an
appropriate forum as argued earlier.
Honble Apex Court in the case of Nivedita Sharma v. Cellular Operators Association of
India21 has held that Petitioner must exhaust its alternative remedy before the State Commission
and should not directly come to High Court
The jurisdiction of the Supreme Court under article 32 is extraordinary jurisdiction. Therefore
any dispute where facts are not admitted, it must be adjudicated in the proper forum. Moreover,
there is no allegation with regard to violation of any forest conservation act. That apart the
enactment of national green tribunal has added a new dimension to the existing forest
governance structure. The National Green Tribunal has explicit power to hear matters concerning
the Forest (Conservation) Act. When an authority has been specifically setup to hear issues
21 Nivedita Sharma v. Cellular Operators Association of India 2011 14(SCC) 337
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pertaining to nature of this writ petition, the petitioner need not waste the time of this honourable
Court
The Supreme Court has held in Catena of cases that interference into policy actions is not within
its jurisdiction. A writ petition cannot be maintainable if its sole purpose is to question a policy
decision of the government.
In case of Association of Drugs and pharmaceuticals, Manufacturers, A.P. vs. A.P health,
medical Housing and infrastructure Development Corporation22 it was held that a writ
petition was not maintainable to question the policy decision. It is neither within the domain of
course nor the scope of judicial review to embark upon an enquiry as to whether a particular
public policy is wise or better public policy and can be evolved. Similarly in case of BALCO
Employees Union (Regd) Vs Union of India23 it was observed that the wisdom and advisability
of economic policies of govt are not amendable to judicial review. It is not for courts to consider
the relative merits of different economic policies. Court is not the forum for resolving the
conflicting clauses regarding the wisdom or advisability of policy.
It is submitted by the Defendant that iron ore mining is not new in the country nor is it new in the
rest of the world. Similarly establishment of iron and steel industry is prevalent all over the
world.
The state has an obligation under the constitution to preserve the life and livelihood of every
person. The state is also duty bound to employment opportunities and economic empowerment
for its citizens. The mining project not only solves the poverty crises, it helps in the development
of the economy as well.
Right to sustainable development is a fundamental right and is to be treated as integral part of
life under the constitution. The defendant contends that the principle of sustainable development
has been strictly observed in framing of policy of iron mining. The courts have balanced
22 Association of Drugs and Pharmaceuticals, Manufacturers, A.P. vs. A.P Health, Medical Housing And
Infrastructure Development Corporation, Hyd and Anr,2002(2) ALD 609
23 BALCO Employees Union(Regd) Vs Union Of India AIR SCW
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priorities while deciding environmental matters in the past. As Somavishu is a developing
country, certain ecological sacrifices are deemed necessary to ensure the benefit of future
generation. This ethical management is termed as sustainable development. Therefore the policy
of government does not violate the constitution of the country
As stated earlier the fundamental rights of the citizens to reside and to move freely or to carry out
their occupation have in no way been infringed in the present case. Also the international
conventions such as UDHR and ICCPR considered to enlarge the scope of fundamental right
have not been violated. The government through the precondition expressed by it in the
environmental clearance makes it mandatory for the industry and the agencies to respect the right
to movement, personal liberty as well as the right to forage in the forest in the neighbouring
forest. The local people have the right to reside and settle along the border of forest as they have
been granted under the constitution.
The defendant submits that the right to healthy environment as under article 21 is not violated by
the policies of the government since all reasonable measures for the protection of environment
and sustainable development have been initiated by the defendant. The Supreme Court has in no
sense prohibited the government for carrying on excavation projects; it is only the projects where
the environmental protection measures were not complied with the court was against such
activities. In the present case enough measures have been taken to maintain and hold sustainable
development. The declaration on the right to development 1986 states right to development as an
inalienable human right and ILO convention NO 169 declares that, the people concerned shall
have the right to choose their own process of development. The government acknowledges and
respects such rights and this is the reason why the local communities have not been displaced.
Developmental progress comes through industrialization which in turn is the main factor behind
the degradation of environment. To resolve this issue, the experts worldwide have come up with
a doctrine called sustainable development i.e. there must be balance between development and
ecology
In Poween and Rainer vs. United Kingdom24, the court though acknowledging the fact that
24 Poween and Rainer vs. United Kingdom 12 EHRR 355
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rights of person involved is affected in a strict interpretation of the guidelines, ultimately found
that an economic institution like an airport was a modern economic necessity that justified the
breach.
In MC Mehta Vs Union of India25, it was held that it is possible to carry on developmental
activity without degrading the environment by following certain measures to protect the
environment. In that, eventually the development has to go on because one cannot lose sight of
the need for development of industries, irrigation resources and mining projects including the
need to improve employment opportunity and the generation of revenue. The Defendant being
aware of all apprehension of the local people has granted environmental clearance to conducting
excavation operation in the area by listing down various safety measures to be followed. This is a
clear evidence of the defendant taking necessary steps to protect the people and the environment
while developing excavation projects and industries.
In case of AP Pollution Control Board v. Prof MV Nayadu26, it was stated that just by the
mere reason of an industry being hazardous; it cannot be debarred from functioning. Necessary
steps need to be taken to safeguard environment and the people. Following the safeguards any
person shall be allowed to handle hazardous substances.
Therefore the Prosecutor cannot pray before this court that the establishment of industry
activities related to hazardous substances should be stopped from functioning. The Defendant
herein has taken all necessary steps to safeguard the environment from damage.
The defendant submits that the country is facing economic crises and is unable to protect the
right to livelihood of the majority of the population. If the industries are shutdown it will raise
the unemployment and deprivation of right to life. To achieve the larger public good, the
property, liberty and life of the individual can be placed in jeopardy in the case of existing
immediate and overwhelming necessity.

25 MC Mehta Vs Union Of India Air 2004 SC 4016

26 AP Pollution Control Board Vs Prof MV Nayadu(Supra)
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Thus in light of the aforesaid arguments it can be said that the Government is not liable
for the injury to peoples rights and environmental degradation and hence is not liable to
restore the environment and pay damages and compensation or free nutritional care to the
people of Suhamo who were thus affected by the acts of the Government.

PRAYER

In light of the issues raised , arguments advanced, cases citied in front of the Honble Supreme
Court, the Defendant most humbly pleas that the Honble Court may:
1. Dismiss the writ petition
2. In the alternative declare and adjudge.
3. Grant other reliefs as the Honble Court may deem fit in the light of Justice, Equity and Good
conscience.
For which the counsels on behalf of the defendants will forever be duty bound and obliged.

33