IN THE HONBLE SUPREME COURT OF INDIA

(WRIT PETITION NO. /2012)

CHANDRA REDDY & OTHERS. PETITIONERS V STATE OF KARNATAKA. ..RESPONDENTS

ON SUBMISSION TO THE SUPREME COURT OF INDIA

MEMORIAL FOR THE PETITIONERS

TABLE OF CONTENTS
INTRODUCTION.. LIST OF ABBREVIATIONS INDEX OF AUTHORITIES.
BOOKS DICTIONARIES INTERNATIONAL CONVENTIONS

STATUTES
WEBSITES

TABLE OF CASES.. STATEMENT OF JURISDICTION.. STATEMENT OF FACTS.. QUESTIONS PRESENTED SUMMARY OF ARGUMENTS. ARGUMENTS OF ADVANCED CONCLUSION AND PRAYER FOR RELIEF

_______________________________________________________________________________ MEMORIAL OF PETITIONERS Introduction i

INTRODUCTION

THE PETITIONER CHANDRA REDDY AND OTHERS HAS THE HONOUR TO SUBMIT TO THE HONBLE SUPREME COURT OF INDIA, THIS MEMORANDUM OF THE PRESENT CASE IN CONFORMITY WITH THE SUPREME COURT RULES. IT SETS FORTH THE GROUNDS OF FACTS AND LAW ON WHICH THE CLAIMS ARE MADE.

_____________________________________________________________________________ MEMORIAL FOR THE PETITIONERS List of Abbreviations

ii

LIST OF ABBREVIATIONS

AIR All ALR A.P Apv. Art. Bom. Cl. Co. Del. Ed. Honble ILR j. JILI JT Kant Ker. KLT Ltd. Ori p. Punj. Pvt. SC SCC

All Indian Reporter Allahabad Academy Law Reviw Andhra Pradesh Approve Assistant Bombay Clause Company Delhi Edition Honorable Indian Law Journal Journal Journal of Indian Law Institute Judgments Today Karnataka Kerala Kerala Law Times Limited Orissa Page Punjab Private Supreme Court Supreme Court Cases MEMORIAL FOR THE PETITIONERS

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List of Abbreviations Sub Cl. T.N Sub Clause Tamil Nadu

iii

Vol. W.B w.e.f

Volume West Bengal With effect from

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MEMORIAL FOR THE PETITIONERS Index of Authorities iv

INDEX OF AUTHORITIES

BOOKS 1.

D.D Basu, Shorter Constitution of India, 13th Ed.,2001, Wadhawa and Co., Nagpur .. Dr.J.N. Pandey, Constitution Law of India, 44th Ed., 2007. Central Law Agency, Allahabad... H.M Sreedevi, Constitutional Law of India, 4th Ed., 1993, N.M. Thripati Pvt. Ltd. Bombay M.P Jain, Indian Constitutional law, 5th Ed., 2003 rep.2005, Wadhwa Nagpur. P.M Bakshi , The Constitution of India, 4th Ed., 2000, Universal Law Publishing Co. Pvt.Ltd., Delhi.. V.N Shukla, Constitution of India, 10th Ed., 2003 rep.2007, Eastern Book Company, Lucknow P.Leela Krishnan, Environmental Law in India, 1st Ed., 1999 Butterworths Group of Companies, New Delhi Dr. Kailash Rai, Principles of Administrative Law, 5th Ed., 2005, Allahabad Law Agency, Haryana. Gurudip Singh, Environmental Law in India, Ed., 2005, Macmillan India Ltd. 1st

2.

3.

4. 5.

6.

7.

8.

9.

DICTIONARIES

1.

Blacks Law Dictionary (Brain A. Garner Ed., West Group 7th Ed. 1999)

INTERNATIONAL CONVENTIONS 1.

World Charter For Nature, 1982.

MEMORIAL FOR THE PETITIONERS

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Index of Authorities STATUTES

1. 2.

The Constitution of India The Environment Protection Act, 1986

3.

Water (Prevention and Control of Pollution) Act, 1974

WEBSITES 1. 2. 3. 4.

www.legalpundits.com......................................................................................... www.supremecourtonline.com............................................................................. www.manupatra.com............................................................................................ www.google.com..................................................................................................

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MEMORIAL FOR THE PETITIONERS Table of Cases vi

TABEL OF CASES
1. A.P Agarwal v Govt. of NCT of Delhi 2000 SC 205

2. Amarjeeth Singh v. Zonal Manager , Food Corporation of India & Others, AIR 2002

NOC 14 (P&H)
3. Ashok Kumar Mishra v. Collector, AIR 1980 SC 112 4. Bandhu Mukti Morcha v Union of India AIR 1984 SC 811
5. 6.

Bd.of Trustee of port of Bombay v. Nata Dilip Kumar AIR 1983 SC 109, Board of Control for Cricket v.Netaji Cricket Club AIR 2008 SC 592 Burra Bazar v.Comm. of Police Cal AIR 1998 Ca/121 Charanlal Shahu v Union of India AIR 1990 SC 1480 DD.Vyas v Ghaziabad Development Authority AIR 1993 All 57; Dr. Hariraj L.Chulani v Bar Council of Maharashtra and Goa (1996) 3SCC 345

7. Bodhisattan v Subhra Chakrabarthy, AIR 1999 SC 922

8.

9. Chandra Kumar v Union of India (1997) 3 SCC 261

10. 11. 12.

13. E.P Rayappa v. State of Tamil Nadu AIR 1974 SC 555 14. E.P Royappa v.State of Tamil nadu AIR 1974 SC 555
15. 16.

F.K Hussain v Union of India AIR 1990 Ker 321 Fedaration of Bar Association in Karnataka v.Union of India AIR 2000 SC 2544. Francie Coralie v Union Territory Delhi Administrator, AIR 1981 SC 746

17. Food Corporation of India v.Kamadenu Cattle Feed Industries, AIR 1993 SC 1601
18.

19. Gopal Das Mohta v. Union of India AIR 1955 SC 1 20. Gujarat v. Mirzapur Moti Kureshi Kassab Janat, AIR 2006 SC 212
21. 22. 23.

Intellectual forum Tripathi v. State of Andra Pradesh AIR 2006 SC 1310 J N Chadurvedi v.Comm.All, Dist, AIR 2001 All 148 KC Malhotra (Dr) v State of MP AIR 1994 MD 48;

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MEMORIAL FOR THE PETITIONERS Table of Cases
24. 25. 26.

vii

Knnubai Brahm Bhatt v State of Gujarat, AIR 1987 SC 1159 Kumaon Mandal Vikas Nigam Ltd v Girija Shankar M C Metha V Union Of India AIR 1997 SC 734.

27.

M.C Mehta v Union of India (1998) 2 scc 435

28. M.S Veena Serhi v State of Bihar, AIR1983 SC 339 29. Mahabir Auto Stores v. Indian Corporation, AIR 1990 SC
30. 31. 32. 33. 34. 35. 36.

Mahesh Chandra v.Regional Manager, up Financial Corporation. AIR 1993 SC 935 Maneka Gandhi v Union of India AIR SC 597 MC Mehta v Union of India AIR 2000 SC 1997 MC. Mehta v.State of Orissa AIR 1992 Ori 225, Mohammed Ishaq V Kazam Pasha, AIR 2009 SC Sapp 1610 Mohan Vanajaya Viniyog Pvt Ltd v. State of West Bengal AIR 2007 NOC 190(Cal) Naraindas v State of MP AIR SC 1232 Narmada Bachao Andolan v.State of MP AIR 2008 MP 142; Nature Lovers Movement v. State of Kerala AIR 2000 Ker 13125 Olga Tellus v.Bombay Municipal Corp.AIR 1986 SC 180; Prem Chang Garg v. Excise Comm.UP , AIR 1963 SC 996 Pwarakadas marfahia & Soni v. Board of trustees of Port of Bombay; AIR 1989 SC 1642 Ramachand v Union of India (1994) 1 SCC 44. Rural Litigation & Entitlement Kendra v State of UP AIR 1987 SC 359; Satyavani v. A.P Pollution Control Board AIR 1993 AP, Sitaram Chhaparia v.State of Bihar AIR 2002 Pat 134;

37. Narayana v.State of Kerala AIR 1974

38. 39. 40. 41. 42.

43.

44. Ramasharan Auty v Union of India, AIR 1983 SC 339

45. 46.

47. Sheela Basse v State of Maharashtra, (1983) 25CC 96 AIR 1983 SC 378
48.

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MEMORIAL FOR THE PETITIONERS Table of cases viii

49.

State of Maharashtra v Chandrabhan AIR 1983 SC 803 Subhash Kumar v State of Bihar AIR 1991 SC 420

50. State of W.B v Committee for Protection of Democratic Rights AIR 2010 SC 1476
51.

52. 53.

Subhash Kumar v. State of Bihar , AIR 1991 SC 420 T.Ram Krishna Rao v. The Chairman Huda and Ors, ILR (2001) 2 AP 180

54. Vikram Dhillon v State of Haryana

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MEMORIAL FOR THE PETITIONERS Statement of Jurisdiction ix

STATEMENT OF JURISDICTION

THE PETITIONER HAS THE HONOUR TO SUBMIT THE MEMORIAL OF THE PRESENT CASE FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA TO THE HONOURABLE SUPREME COURT OF INDIA. IT SETS FORTH THE AROUNDS OF FACTS AND LAW ON WHICH THE CLAIMS ARE MADE.

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MEMORIAL FOR THE PETITIONERS Statement of Facts x

STATEMENT OF FACTS
Sitaram Diversion Scheme (SDS for short) is an inter-State irrigational project covering lands in the States of Karnataka and Andra Pradesh. The project comprises of canal on the river Tunghabadra (Inter-State River), tributary of river Krishna, near Village Sitapet in Raichur District in

the State of Karnataka. The canal is of the length of about 89 miles (143KM) having discharge capacity of 850 cusecs of water. It was constructed by the then Nizam of Hydrabad before more than fifty years. SDS caters needs of drinking and irrigation water in Mehboobnagar District, which is a drought-prone area of the State of Andra Pradesh. About 40,000 farmers, out of which 30,000 are small and marginal farmers, are entirely dependent on the water from the said canal for drinking, irrigation, sanitation and other domestic purposes. State of Karnataka sanctioned and granted approval to a Mini Hydro Power Project at Sitaram Diversion Scheme in favour of Sree Mahalekshmi Energy Limited (SMEL). Aggrieved by the states action, a group of residents headed by one Chandra Reddy of Mehboobnagar District in the State of Andra Pradesh approached the Supreme Court under Article 32 of the Constitution praying for an appropriate writ, direction or order, restraining State of Karnataka and Sree Mahalekshmi Energy Ltd. From constructing a mini hydro power project at Sitaram Diversion Scheme and hence the matter is pending before the Supreme Court of India. The power channel is so designed that it will take away water from poundage of SDS which would result in substantially curtailing the flow of water diverting water to Power Project. It would adversely affect 40,000 farmers, their family members and residents who depend on RDS canal in the State of Andra Pradesh. It is stated by the Petitioners that they are citizens of India and are residence of Mehaboobnagar District and that they depend on SDS for the irrigation of their agricultural lands. Petitioners further contented that State of Karnataka has acted illegally and unlawfully in sanctioning and approving the power project in favor of a private party. Due to the said project, sufficient water for drinking purpose and for irrigation facility is not available to the residence and farmers of District Mehaboobnagar of the State of Andhra Pradesh. They stated that the petitioners in the larger interest of the public are, there for, constrained to approach Supreme Court under Article 32 of the Constitution. Petitioner have further stated that the power channel is so designed that it will take away water from poundage of SDS which would result in substantially curtailing the flow of water to Power Project. It would adversely affect 40000 farmers, their family members and the residence who depend on RDS Canal in the State of Andhra Pradesh. The respondents inter alia, contented that writ petition filed by the petitioners under Article 32 of the Constitution is no maintainable. On merits, it was contented that the grievance raised by the petitioners that the Mini Hydel Power Project would consume water is totally unfounded and ill conceived. The scheme contemplated production of electricity on the Run-off-the River Technology which involves no consumptive utilization of water at all. The respondents allege that the writ petition is an abuse of process of Court and the Court is being used as a Political Platform to achieve Political mileage by the opposition parties. The matter is pending before the Supreme Court of India

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MEMORIAL FOR THE PETITIONERS

Questions Presented

xi

QUESTIONS PRESENTED

A.

WHETHER THE WRIT PETITION FILED UNDER ARTICLE 32 IS MAINTAINABLE?

B.

WHETHER THE ACT OF STATE OF KARNATAKA TO SET UP THE HYDRO POWER PROJECT ARE ILLEGAL, UNLAWFUL, AND UNCONSTITUTIONAL AND VIOLATES ARTICLE 14 OF THE CONSTITUTION OF INDIA?

C.

WHETHER THE ACT OF THE RESPONDENT VIOLATES THE FUNDAMENTAL RIGHT GUARANTEED UNDER ARTICLE 21 OF THE INDIAN CONSTITUTION?

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MEMORIAL FOR THE PETITIONERS

Summary of Arguments

xii

SUMMARY AND ARGUMENTS

A. B.

THE WRIT PETITION UNDER ARTICLE 32 IS MAINTAINABLE: THE ACT OF STATE OF KARNATAKA TO SET UP THE HYDRO POWER PROJECT ARE ILLEGAL, UNLAWFUL AND UN CONSTITUTIONAL AND VIOLATES ARTICLE 14 OF THE CONSTITUTION OF INDIA : THE ACT OF THE RESPONDENT VIOLATES THE FUNDAMENTAL RIGHT GUARANTEED UNDER ARTICLE 21 OF THE INDIAN CONSTITUTION:

C.

C.1. C.2.

Right to Livelihood of the Petitioners is violated under Article 21 of the Constitution of India Right to water Guaranteed under Article 21 of the Constitution of India is violated

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MEMORIAL FOR THE PETITIONERS Arguments Advanced 1

ARGUMENTS ADVANCED __________________________________________________________

A.

WRIT PETITION FILED UNDER Art 32 IS MAINTAINABLE

Article 321 of the Constitution of Indian states that when there is violation of fundamental right any person can move to the court for an appropriate remedy 2. The significant aspect of Indian Constitution is the jurisdiction it confers on the Supreme Court to issue writs under Article 32 3. The sole object of Article 32 is enforcement of fundamental rights guaranteed by the Constitution. 4 Underlying the significance of Article 32 the Supreme Court has characterized the jurisdiction conferred on it by Article 32 as an important and integral part of the basic structure of the Constitution because it is meaningless to confer fundamental rights with out providing an effective remedy for their enforcement, if and when they are violated. 5 In Vikram Dhillon v State of Haryana6 The fundamental Right to move this court can-therefore be appropriately described as the cornerstone of the democratic edifice raised by the constitution. It is natural that this court should regard itself as protector and guarantor of

Arguments Advanced

fundamental rights and refuse to entertain application seeking protection against infringement of such rights. The court has to pray the role of a sentinel on the qui vive and it must always regard it us its solemnly duty to protect the Fundamental Right Zealously and Vigilantly.

Article 32(1) guarantees the right to move the supreme court by appropriate proceedings for the enforcement of the fundamental rights conferred by Part III of the constitution.
2

Pramod Kumar Saxena v. Union of India and others (2008) 9scc 685, Fedaration of Bar Association in Karnataka v.Union of India AIR 2000 SC 2544.
3

Ashok Kumar Mishra v. Collector, AIR 1980 SC 112, See also Prem Chang Garg v. Excise Comm.UP , AIR 1963 SC 996
4

Gopal Das Mohta v. Union of India AIR 1955 SC 1, see also Dr.Durga Das Basu, Shorter Constitution of Indian, (13th Ed 2001)
5

Banti kanta Das & Another v. state of Assam & Ors JT (2009(7) SC 562, Fedaration of Bar Association in Karnataka v. Union of India AIR 2000 SC 2544. 6 AIR 2007 SC 1067, State of W.B.v. Committee for Protection of Democratic Rights AIR 2010 SC 1476.

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MEMORIAL FOR THE PETITIONERS

In the instant case the petitioner have got the innate right to enjoy the fundamental right conferred to them by the constitution of India. The very fact that the said right has been infringed by the respondent empower them to invoke the jurisdiction of the supreme court under Article 32 for the redressal of their grievances. The technique of Public Interest Litigation serves to provide an effective remedy to enforce group rights and interest.7 Where a person or class of person to whom legal injury is caused by reason of violation of a fundamental Right is unable to approach the court for judicial redress on account of poverty or disability or socially or economically disadvantage position any member of public acting bonafide can move to the court for relief under Article 32.8 Any member of public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. 9 In the instant case the act of State of Karnataka in sanctioning mini hydro power project affect the 40,000 farmers who where entirely dependant on the water from the said canal for drinking, irrigation, sanitation and other domestic purposes. Aggrieved by state action a group of residence headed by Chandra Reddy moved this Public Interest Litigation under Article 32 before this honorable court. In Common Cause, a Registered society v Union of India 10. The Supreme Court opined that ; Aricle 32 provides a guaranteed , quick and summary remedy for enforcing the fundamental Right because a person can go straight to the Supreme Court without having
Arguments Advanced 3

to under go dilatory process of proceeding from the lower court to the high court as he has to do in after ordinary litigation The Supreme Court cannot refuse on application under Article 32 merely on the following grounds:
7

Sheela Basse v State of Maharashtra, (1983) 25CC 96 AIR 1983 SC 378: M C Metha V Union Of India AIR 1997 SC 734. 8 Bandhu Mukti Morcha v Union of India AIR 1984 SC 811 9 Villianus Iyarkkai Padukappu Maiyam v Union of India (2009) 7 SCC561 : (2009) 8JT 339. 10 AIR 1999 SC 3020, Bodhisattan v Subhra Chakrabarthy, AIR 1999 SC 922

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MEMORIAL FOR THE PETITIONERS

 That such application has been made to the Supreme Court in the first instance without

resort to High Court under Article 226 11 That there is some alternative remedy available 12 The existence of an adequate alternative relief is not a bar to the invocation of the Supreme Courts jurisdiction under Article 32. When a relief a sort in case of a infringement of a Fundamental Right 13 The respondent curtailed the fundamental rights of the petition guaranteed under the constitution of Indian. Being aggrieved by the impugned Act the petitioner has the very right to seek relief under Article 32 of the constitution ass there has been infringement of fundamental rights; alternative remedy is in no way debarring from approaching the Supreme Court. In Janata Dal v H.S Chowdhary 14 . It was opined that: The Supreme Court has to innovate new methods and device new strategies for the purpose of providing access to justice who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way this can be done is by entertaining writ petitions. In the instant case, the very fact that the petitioner is in a grevious situation that the said project curtails the right to water that is their basic fundamental right has been violated. This empowers them to approach the Supreme Court and the court to grant relief through allowing the petition. The Supreme Court is the greatest authority to
Arguments Advanced 4

safeguard the fundamental rights of the citizen and also to see that justice being given to the needy. Hence, it is humbly submitted before this honorable Court that the writ petition filed under Article 32 is maintainable.

11 12

Kumar P.N v Municipal Coprn Delhi (1987) 45CC 609; Knnubai Brahm Bhatt v State of Gujarat, AIR 1987 SC 1159 State of W.B v Committee for Protection of Democratic Rights AIR 2010 SC 1476 : Mohammed Ishaq V Kazam Pasha, AIR 2009 SC Supp 1610 13 Chandra Kumar v Union of India (1997) 3 SCC 261; Ramachand v Union of India (1994) 1 SCC 44. 14 AIR 1993 SC 892; see also M.S Veena Serhi v State of Bihar, AIR 1983 SC 339; Ramasharan Auty v Union of India, AIR 1983 SC 339

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MEMORIAL FOR THE PETITIONERS

B.

THE ACT OF STATE OF KARNATAKA TO SET UP THE HYDRO POWER PROJECT ARE ILLEGAL, UNLAWFUL AND UN CONSTITUTIONAL AND VIOLATES ARTICLE 14 OF THE CONSTITUTION OF INDIA :

Article 14 outlaws arbitrary administrative action. When there is arbitrariness in state action Art14 springs in to action and the court strikes down such action. Arbitrary state action infringes Art 14 .15 Every action of the State must be informed by reasons and guided by public interest. Actions uninformed by reason may questioned as arbitrary.16 In case any right conferred on citizens which is sought to be interfered, such action is subject to Art 14 of the Constitution, and must be reasonable and can be taken only upon lawful and relevant grounds of public interest.17 Every state action in order to survive must not be susceptible to the vice of arbitrariness which is the crux of Art 14 of the Constitution and the basic to the rule of law.18 In Maneka Gandhi V Union of India 19 the Supreme Court held that: The new concept of arbitrariness was reinforced thus Art 14 strikes at arbitrariness in state action. The principle of reasonableness which legally as well as philosophically, is an essential element of equality or non-arbitrariness provides Art 14 as a brooding omnipresence. The statutory body is bound to follow the doctrine of fairness and good faith in all its activities having regard to the fact that it has to fulfill the hopes and aspirations of millions, it has the duty to act reasonably. It cannot act arbitrary, whimsically or capriciously as the body controls environmental issues its action are required to be judged and viewed by higher standard.20
Arguments Adavanced 5

In the instant case the sanction of hydro power project by the State of Karnataka is not made in a just, fair and reasonable manner, but according to the whims & fancies of the Government. The respondent owes a duty towards the public not to act in a capricious manner and to inpede the lawful exercise of fundamental right. The Act not only affects the Petitioner but also to the greater public i.e. 40,000 farmers who will be sufferers of impugned act are entirely dependant on the water from the said Canal for drinking, irrigation, sanitation and
15 16

A.P Agarwal v Govt. of NCT of Delhi 2000 SC 205, H.M. Sreedevi , Constitutional law of India. [4th Ed, 1993] E.P Rayappa v. State of Tamil Nadu AIR 1974 SC 555 C also 17 Amarjeeth Singh v. Zonal Manager , Food Corporation of India & Others, AIR 2002 NOC 14 (P&H) Mahabir Auto Stores v. Indian Corporation, AIR 1990 SCIDBI, Pwarakadas marfahia & Soni v. Board of trustees of Port of Bombay; AIR 1989 SC 1642 18 Gujarat v. Mirzapur Moti Kureshi Kassab Janat, AIR 2006 SC 212, Govt. Of AD V P.Laxmi Devi (2008) 4. 19 AIR 1978 SC 597 20 Board of Control for Cricket v.Netaji Cricket Club AIR 2008 SC 592

MEMORIAL FOR THE PETITIONERS

other domestic purposes. It does not satisfy the requirement of public interest and hence vitiated by the vice of arbitrariness which is antithetical to Article 14. Further, to satisfy the requirement of non-arbitrariness in state action, it is necessary to consider and give due weight to the reasonable and legitimate expectations of the persons likely to be affected by the decision or else the unfairness in the exercise of the power may amount to an abuse or excess of power .21 Any arbitrary action thus taken by the state would be subject to scrutiny by the courts because arbitrariness is the very antithesis of rule of law.22 In the instant case, the State of Karnatakas proposal to set up the hydro power project will cause an irreparable impact on the environment. The plan to set up the project has been taken without considering the legitimate expectation of the people. If the project is given a green signal by the Government it would no doubt result in arbitrariness in state action and would lead to negation of equality as enshrined under Art 14 of the Constitution. Once it is acknowledged that non-arbitrariness is an ingredient of Art 14 pervading the entire realm of state action governed by Art 14 it has come to be established, as a further corollary, that the audi alteram partem fact of natural justice is also a requirement of Article 14, for natural justice is the antithesis of arbitrariness. The right of audi alteram partem is a valuable right recognized under the Indian Constitution23. In the instant Case, State of Karnataka Sanctioned Mini Hydro Power Project without following the procedure of natural justice and hence the act of State

Arguments Advanced

violate Article 14 of the Indian Constitution . So it can be state that the action made by the State of Karnataka is purely arbitrary. Hence it is humbly submitted before the Honorable Court that the act of state of Karnataka to set up hydro power project is illegal, unlawful & unconstitutional and hence violative of Article 14 of the Constitution.
C. THE ACT OF THE RESPONDENT VIOLATES THE FUNDAMENTAL RIGHT GUARANTEED UNDER ARTICLE 21 OF THE INDIAN CONSTITUTIION:21

Food Corporation of India v.Kamadenu Cattle Feed Industries, AIR 1993 SC 1601, Mahesh Chandra v.Regional Manager, up Financial Corporation. AIR 1993 SC 935 22 Naraindas v State of MP AIR SC 1232 23 E.P Royappa v.State of Tamil nadu AIR 1974 SC 555 c also Narayana v.State of Kerala AIR 1974, V.N Shukla, Constitution of India [ 10th Ed, 2007] ;Kumaon Mandal Vikas Nigam Ltd v Girija Shankar AIR 2001 SC 24) _____________________________________________________________________________________________

MEMORIAL FOR THE PETITIONERS

Right to life enshrined in Article 21 means something more than survival or animal existence.24 It would include right to live with human dignity.25 It would include all those aspects of the life which goes to make mans life meaningful, complete and worth living26. That which alone can make it possible to live must be declared to be an integral component of right to life.27 Every person enjoys the right to wholesome environment, which is a facet of the right to life guaranteed under Article 21 of the constitution of India.28 In the instant case, the proposal of Mini hydro power project would deprive the petitioners right to live with human dignity which is guaranteed under Article 21 of the Constitution. As the inhabitants of Mehaboobnagar, which is a drought prone area of the Andra Pradesh depend completely on this water from the canal for drinking, irrigation, sanitation and other domestic purpose. The denial of this will lead to the gross violation of the right as adumptrated in Article 21 of the Constitution.
C1.
RIGHT TO LIVELIHOOD OF THE PETITIONERS IS VIOLATED UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA

Arguments Advanced

An important facet of Article 21 is the right to life which includes right to livelihood because no person can live without the means of living ie, the means of livelihood. Olga Tellis v Bombay Muncipal Corporation 29 the Supreme Court held that easiest way of depriving a persons right to life would be deprive his right to livelihood. Deprivation of livelihood would not only denude the life but it also makes life impossible to live. That which alone makes it possible to live must be an important component of right to life. Any person who is deprived of his right to livelihood except according to just and fair procedure established by law can challenge the deprivation as offending to the right to life conferred under Article 21.
24 25

State of Maharashtra v Chandrabhan AIR 1983 SC 803; see also MP Jain, Indian Constitutional Law, (5th Ed; 2005) P. Francie Coralie v Union Territory Delhi Administrator, AIR 1981 SC 746; see also Olga Tellus v.Bombay Corp.AIR 1986 SC 180; D.T.C v. Mazdoor Congress Union Air 1991 SC 101; KC Malhotra (Dr) v State of MP AIR 1994 MD 48; J N Chadurvedi v.Comm.All, Dist, AIR 2001 All 148 26 Maneka Gandhi v Unioon of India AIR SC 597 see also Bd.of Trustee of port of Bombay v. Nata Dilip Kumar AIR 1983 SC 109, Burra Bazar v.Comm. of Police Cal AIR 1998 Ca/121 27 Supra on 25 see also D.D Basu , Shorter Constitution of India [13th Ed 2001] 28 Subhash Kumar v. State of Bihar , AIR 1991 SC 420 _____________________________________________________________________________________________

MEMORIAL FOR THE PETITIONERS

29

[AIR 1986 SC 180] see also Dr. Hariraj L.Chulani v Bar Council of Maharashtra and Goa (1996) 3SCC 345

In the instant case the State of Karnataka illegally and unlawfully sanctioned the mini hydro power project. Thus this affects the right to livelihood of petitioners who are the marginal farmers who solely depend on this canal for the irrigation
C2.
RIGHT TO WATER GUARANTEED UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA IS VIOLATED

Sec 2 of the Water (Prevention and Control of Pollution) Act 1974 defines water pollution as pollution means such contamination of water or such alternation of physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or salt substance in to water (whether directly or indirectly) as may, or is likely to create a nuisance or render such harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate use, or the life and health of animals or plants or of aquatic organisms Right it life under Article 21 includes Right to enjoyment of pollution free water and air for full enjoyment of life.30 Right to life includes right to potable water as it is one of the basic elements which sustain life itself.31 In the instant case the construction of hydro power project by the State Government would have an adverse affect on the quality of the river water. Water which

Arguments Advanced

is essential for the very existence of human being is a gift of nature. The run-off-the-rivertechnology used here will change the quality of water in the river, on which the petitioner depends for drinking, irrigation, sanitation and other domestic purposes. Thus it is clear that the State action would lead to degradation in the quality of water and there by preventing people from enjoying the free flow of water. The State Government has Constitutional obligation to protect and preserve the environment Article 48-A and 51A (g) have to be considered in the light of Article 21 of the Constitution. Article 48 A of the constitution of India mandates that State shall endeavor to
30

Subhash Kumar v State of Bihar AIR 1991 SC 420: see also; Rural Litigation & Entitlement Kendra v State of UP AIR 1987 SC 359; DD.Vyas v Ghaziabad Development Authority AIR 1993 All 57; Narmada Bachao Andolan v.State of MP AIR 2008 MP 142; MC. Mehta v.State of Orissa AIR 1992 Ori 225, 31 F.K Hussain v Union of India AIR 1990 Ker 321: see also Charanlal Shahu v Union of India AIR 1990 SC 1480 ; M.C Mehta v Union of India (1998) 2 scc 435; P. Leela Krishnan, Environmental Law in India [1st Ed.1999] _____________________________________________________________________________________________

MEMORIAL FOR THE PETITIONERS

protect and improve the environment and safeguard the forest and wildlife of the country. Article 51A (g) enjoys that it shall be the duty of every citizen of India, inter alia, to protect and improve national environment including forest, lakes, rivers, wild life and to have compassion for living creatures. 32 These two Articles are not only fundamental in governance of the country but also shall be the duty of the State of apply these principles in making policies 33. In MC Mehta v. Kamal Nath 34 the Supreme Court accepted the doctrine of public trust which rest on the premise that certain natural resources like air, sea water are meant for general use. These resources are gift of nature and the State as a trustee thereof, is duly to bound to protect them. The World Charter for Nature delineates the special protection to be accorded to unique areas or the habitats of rare or endangered species and enjoins upon the States the duty to take the account of the conservation of nature in the implementation of economic development activities 35. Activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; their proponents shall be required to demonstrate that

Arguments Advanced

expected benefits outweigh potential damage to nature and where potential adverse effects are not fully understood the activities shall not proceed 36 In the instant case, the respondent failed to conduct an exhaustive examination of the said project and therefore the project should not be preceded. Environment impact Assessment (EIA) is a technique to ensure that the likely effects of development activities on the environment will be taken in to consideration before the activities authorized to proceed. EIA involves continuing assessment and evaluation of the
32

MC Mehta v Union of India AIR 2000 SC 1997; T.Ram Krishna Rao v. The Chairman Huda and Ors, ILR (2001) 2 AP 180 33 Intellectual forum Tripathi v. State of Andra Pradesh AIR 2006 SC 1310 see also: Sitaram Chhaparia v.State of Bihar AIR 2002 Pat 134; Satyavani v. A.P Pollution Control Board AIR 1993 AP, Nature Lovers Movement v. State of Kerala AIR 2000 Ker 13125 34 (1997) 1 SCC 388 35 Art 7 of the World Charter of Nature _____________________________________________________________________________________________

MEMORIAL FOR THE PETITIONERS

36

Art II (b) id ; see also Mohan Vanajaya Viniyog Pvt Ltd v. State of West Bengal AIR 2007 NOC 190(Cal); Research Foundation for Science and Technology & National Resources v Union of India 2005 (3) 193

environment effects on the developmental project as long as the project is in operation and is not confined to pre-project evaluation of possible environmental effects.37 In the instant case, EIA was not undertaken by the State of Karnataka .The act of State of Karnataka to set up the mini hydro power project has been taken without considering the legitimate expectations of the people. So, green signal cannot be given to the hydro power project without taking EIA. Hence it is humbly submitted before this Honble Court that the act of State of Karnataka to set up mini hydro power project is violative of Article 21 of the Indian Constitution.

Conclusion and Prayer Relief

10

CONCLUSION AND PRAYER RELIEF

In the light of the issues raised, arguments advanced and the authorities cited the Petitioners humbly that this Honble Court may kindly adjudge and declare that:
A. B. THE WRIT PETITION UNDER ARTICLE 32 IS MAINTAINABLE: THE ACT OF STATE OF KARNATAKA TO SET UP THE HYDRO POWER PROJECT ARE ILLEGAL, UNLAWFUL AND UN CONSTITUTIONAL AND VIOLATES ARTICLE 14 OF THE CONSTITUTION OF INDIA :

37

Gurdip Singh, Environmental Law in India [1st Ed. 2005)

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MEMORIAL FOR THE PETITIONERS

C.

THE ACT OF THE RESPONDENT VIOLATES THE FUNDAMENTAL RIGHT GUARANTEED UNDER ARTICLE 21 OF THE INDIAN CONSTITUTION:

And may kindly pass any order that this Honble court may deem fit. For the act of kindness the Appellant as in duty bound shall forever pray.

Respectfully submitted Sd/(Counsel for the Petitioners)

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MEMORIAL FOR THE PETIOTIONERS