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NAME : RADHIKA TOLAMBE.CLASS: LL 3 RD YEAR.DIV: NON GRANT.RADHIKA TOLAMBERADHIKATOLAMBE@GMAILYASHWANTRAO CHAVANLAW COLLEGE MOOTMEMORIAL, 2022PRESENTATIONPAGE IIBeforeTHE HONOURABLE HIGH COURT OF MAHAPRADESHUnder Article 226 of the Constitution Of IndiaAlert Indiva..................................VS...

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NAME : RADHIKA TOLAMBE. CLASS: LL.B 3RD YEAR. DIV: NON GRANT.

YASHWANTRAO CHAVAN LAW COLLEGE MOOT MEMORIAL, 2022 PRESENTATION

RADHIKA TOLAMBE [email protected]

YASHWANTRAO CHAVAN LAW COLLEGE MOOT MEMORIAL, 2022

Before

THE HONOURABLE HIGH COURT OF MAHAPRADESH

Under Article 226 of the Constitution Of India

Alert Indiva……………………………..Petitioner

VS.

State Of Mahapradesh……………………………Respondent

MEMORIAL ON BEHALF OF RESPONDENT

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TABLE OF CONTENTS

INDEX OF AUTHORITIES…………………………………………………………………….page. 04

STATEMENT OF JURISDICTION………………………………………………………….page. 05

STATEMENT OF FACTS…………………………………………………………………page. 06,07

ISSUES RAISED …………………………………………………………………………………page. 08

SUMMARY OF ARGUMENTS………………………………………………………… page. 09,10

ARGUMENTS ADVANCED……………………………………………………….page. 11,12,13,14

PRAYER…………………………………………………………………………………………..page. 15

MEMORIAL ON BEHALF OF RESPONDENT

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LIST OF ABBREVIATIONS

AIR SC SCC NGT MOEF GOVT. HON’BLE

MEMORIAL ON BEHALF OF RESPONDENT

All India Report Supreme Court Supreme Court Cases National Green Tribunal Ministry of Government Honourable

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INDEX OF AUTHORITIES

CASES

SANAPALA SURYANARAYANA V. STATE OF A.P. CHAMELI SINGH AND ORS. V. STATE OF U.P AND ANR. NEW REVIERA COOPERATIVE HOURSING SOCIETY V. SPECIAL LAND ACQUISITION OFFICER NARMADA BACHAO ANDOLAN V. UNION OF INDIA AND ORS.

STATUTES

LAND ACQUISITION ACT, 1894 ENVIRONMEN PROTECTION ACT, 1986

STATEMENT OF JURISDICTION

MEMORIAL ON BEHALF OF RESPONDENT

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The Petitioner has filed the Public Interest Litigation before the Hon’ble High Court of Judicature of Mahapradesh, in the matter of Alert Indiva v. State of Mahapradesh, under article 226 and article 227 of the Constitution Of Indiva . The Respondent reserves the right to challenge the same. The present memorandum sets forth the facts, contentions and arguments.

STATEMENT OF FACTS

MEMORIAL ON BEHALF OF RESPONDENT

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For the sake of brevity and convenience of the Hon’ble Court the facts of the present case are summarized as follows:

1. The State of Mahapradesh is one of the States in Indiva and due to acute scarcity of water the major part of the state is suffering from drought. 2. To overcome the situation , the State of Mahapradesh has to construct dams in the State so that rainwater could be accumulated in the dams which would help in meeting the needs of water for drinking purpose as well as for agriculture and industries purpose. 3. The Government also of the opinion that the accumulation of water in the dams would help in recouping the underground water level. 4. As per that decision dams had to be constructed in a district and which is severely affected and the construction of the dam would affect ten more villages which are adjoining to the location of the dam. The villagers have agriculture as their main occupation and the water stored in the dam, their agricultural fields would either submerged or get water logged which deprive them of their right to livelihood. 5. The state of Mahapradesh for the purpose of the construction of dam had floated global tenders and one of the companies, Reliable Industries Limited has been given a contract to construct a dam. The Reliable Industries for the construction of dam had applied for environment clearance to the Ministry of Environment and Forest for the purpose.

MEMORIAL ON BEHALF OF RESPONDENT

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6. Environment clearance has been given to the company on that ground that Govt. has authority to do so in larger public interest. The agriculturist are also not in favor of the construction of dam since they would displaced from land because of constructed dam they would be deprived of their livelihood. 7. The NGO which works for the protection of environment in Indiva. “Alert Indiva” which fights for the cause of environment, therefore filed a petition under Art.226 and Art. 227 of the Constitution of Indiva on the ground that Environment Clearance Certificate granted is bad in letter and spirit of the constitution and against the villager’s interest. 8. “Alert Indiva” has also taken the cause of the agriculture who are likely to displaced and submitted that the construction of the dam is in violation of Art.21 of the constitution of Indiva as regards right to life and Personal Liberty of the agriculturist in the area.

ISSUES RAISED The following questions are presented for adjudication in the instant matter: MEMORIAL ON BEHALF OF RESPONDENT

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Issue No. 01 Whether the present petition has been filed in public interest and therefore maintainable as a Public Interest Litigation?

Issue No. 02 Whether the writ Petition filed under Art. 226 and Art. 227 of the Constitution of Indiva is Maintainable?

Issue No. 03 Whether the High Court of Mahapradesh can interfere in any policy decision taken by the State of Mahapradesh?

Issue No. 04 Whether the displacement of the agriculturists from the area where the proposed dam is to be constructed amounts to violation of Art.21 of the Constitution of Indiva? Issue No. 05 Whether the decision taken by the State of Mahapradesh to construct the dam deserves to be maintainable or should be quashed and set aside? Issue No. 06 Whether the decision taken by the State of Mahapradesh to construct the dam deserves to be maintainable or should be quashed and set aside SUMMARY OF ARGUMENTS

1. Whether the present petition has been filed in public

interest and therefore maintainable as a Public Interest Litigation?

MEMORIAL ON BEHALF OF RESPONDENT

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The group of NGO known as ‘Alert Indiva’ filed a petition under Article 226 and Article 227of the Constitution of India for the Issuance of writ is partly maintainable and partly not maintainable. 2. Whether the Writ Petition filed under Art.226 and Art.227 of

the Constitution of Indiva is maintainable? The Present Petition filed under Art.226 and Art.227 of the Constitution of Indiva is partly maintainable and partly not maintainable. 3. Whether the High Court of Mahapradesh can interfere in any

policy decision taken by the State of Mahapradesh? No, the High Court of Mahapradesh cannot interfere in any policy decision of the State of Mahapradesh. 4. Whether the displacement of the agriculturists from the area

where the proposed dam is to be constructed amounts to violation of Art. 21 of the Constitution of Indiva? No, the displacement of agriculturists from the proposed area of dam does not violate the Art.21 of the Constitution of Indiva. As displaced persons or villagers rehabilitated and resettled in such a manner that are in a better position to lead a decent life and earn their livelihood.

5. Whether the Environment Clearance Certificate granted by

the State is contrary to the provisions of Constitution of Indiva?

MEMORIAL ON BEHALF OF RESPONDENT

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As per the provision laid down in the EIA notification of 1994 made the environmental clearance mandatory for all new projects. The latest draft of EIA notification 2020, the environment ministry has also proposed and had given lifeline to all projects.

6. Whether the decision taken by the State of Mahapradesh to

construct the dam deserves to be maintained or should be quashed and set aside? According to the above said reasons and submissions under the umbrella of the acquisition laws the present public interest litigation deserves to be dismissed with cost.

ARGUMENTS ADVANCED

1. Whether the present petition has been filed in public interest and therefore maintainable as a Public Interest Litigation? MEMORIAL ON BEHALF OF RESPONDENT

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Black’s Law Dictionary defines Public Interest as : “Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. As per the petition filed by the Alert Indiva in public interest is not maintainable because they are not concerned with the rights of the affected people, they are just for publicity and no way concerned with the displacement of the affected people and do not come under the ambit of representing public at large. Article 226 pf the Constitution of India by the petitioner which is said to be an NGO being a trust registered under the Indian Trust Association, and therefore, petitioner NGO is not a juristic person. It is well settled law that writ petition filed by the unregistered association is not maintainable. And it is not a public interest litigation, its just a private interest litigation. 2. Whether the Writ Petition filed under Art.226 and Art.227 of the Constitution of Indiva is maintainable? (i)

The Present Writ Petition filed by “Alert Indiva” under Article 226 of the Constitution of Indiva is maintainable.

According to the article 226 of the Constitution of India a person can move to the High Court to file a writ petition when there is violation of his or her fundamental rights. Article 226 of the Constitution empowers the High court to exercise power through various writs. MEMORIAL ON BEHALF OF RESPONDENT

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As per the petition filed by the petitioner. According to the petitioner though the present petition may be maintainable in article 226 but as per the present petition it will not be said that the PIL is maintainable under article 227 of the constitution, because according to the article 227 of the constitution it determines that every High Court shall have superintendence over all courts as well as tribunals to which it exercises jurisdiction and under article 227 of the Constitution High Courts only have supervisory jurisdiction and not original. No writ petition can be moved under Article 227 of the Constitution nor can a writ be issued under Article 227 of the Constitution. Therefore, a petition filed under Article 227 of the Constitution cannot be called a writ petition.

Issue no. 3 Whether the High Court of Mahapradesh can interfere in any policy decision taken by the State of Mahapradesh?

The High Courts cannot take any cognizance of matters because it is barred under the acquisition laws and the judiciary cannot interfere into a legislation and the effect of it that is laid down under the legislation. They cannot go beyond the object laid down in a certain legislation until and unless the legislation is challenged to be ultra vires. It was held that courts do not interfere in any policy matters of the state unless the policy violates the mandate of the constitution or any statutory provision or otherwise actuated by mala fides. In case of Ugar Sugar Works Ltd. V. Delhi Administrative & Ors., it is well settled that the courts, in exercise of their power of judicial review do not ordinarily interfere with the policy decisions of the

MEMORIAL ON BEHALF OF RESPONDENT

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executive unless the policy can be faulted on the grounds of mala fide unreasonableness, arbitrariness or unfairness. Thus, generally, the judiciary cannot and will not interfere in the policy decision of the Government. Hence, according to the facts of the present case, the petitioners should have approached the tribunal for review of the judgement instead of approaching the writ jurisdiction of the High Court under Article 226.

Issue no. 04 Whether the displacement of the agriculturists from the area where the proposed dam is to be constructed amounts to violation of Art. 21 of the Constitution of Indiva?

No, As per the proposed dam is constructed and the result of it amounts to displacement of agriculturists from the area does not amounts to violation of `Art.21 of the Constitution. Under the Land Acquisition Act, 1894 it states about the word Eminent Domain, which speaks about the power of the government to take private property and convert it into public use. Eminent Domain, simply put is the State’s power to acquire private property against the consent of the owner for a ‘public purpose’. The act also directs the state to pay compensation to the land owner.

MEMORIAL ON BEHALF OF RESPONDENT

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As per the judgement given in the Narmada Bachao Andolan case, N.D. Jayal v. Union of India case, the Supreme court has held that so long as the displaced persons are rehabilitated and resettled in such a manner that they are in a better position to lead a decent life and earn their livelihood in the rehabilitated location, their fundamental right guaranteed under article 21 of the Constitution would not be violated by construction of a dam. In New Reviera Cooperative Housing Society v. Special Land Acquisition Officer in which the Supreme Court has held that if the contention that acquisition of land by the state for public purpose violates Art.21 of the Constitution is given credence, then no land can be acquired under the Land Acquisition Act, 1894 for any public purpose in all such cases, owners and all other persons would be deprived of their property. In Chameli Singh v. State of U.P. and Ors. In which the Supreme Court has similarly held that in every acquisition of land which is compulsory in nature, the owner may be deprived of land, the means of his livelihood, but the State exercises its power of eminent

domain for public purpose and so long as the exercise of the power is for the public purpose, the individual’s rights as the owner of the land must yield place to a larger public purpose.

Issue no. 05 Whether the Environment Clearance Certificate granted by the State is contrary to the provisions of Constitution of Indiva? Environmental Clearance Certificate granted by the State is not Contrary to the provisions of the Constitution of Indiva because the

MEMORIAL ON BEHALF OF RESPONDENT

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Act related to the environment in India was The Shore Nuisance (Bombay and Kolaba) Act, 1853. According to the provisions for the constitution, the Central Government and State Government shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. Environment Clearance Certificate is valid or not cannot be decided by the High Court and can only be decided by the competent authority as contemplated under the acquisition laws.

Issue no. 06 Whether the decision taken by the State of Mahapradesh to construct the dam deserves to be maintained or should be quashed and set aside?

From the above said reasons and submissions under the umbrella of the acquisitions laws the present PIL deserves to be dismissed with cost. Hence, according to the facts of the present case, the petitioners should have approached the tribunal for review of the judgement instead of approaching the writ jurisdiction of the High Court under Article 226.

MEMORIAL ON BEHALF OF RESPONDENT

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PRAYER Wherefore, in the light of the facts presented, arguments advanced and authorities cited, the Respondent humbly submit that the Hon’ble High Court of Mahapradesh be pleased to adjudge and declare that: 1. The present PIL is not maintainable under Article 226 as the NGO has neither exercised excessive jurisdiction nor is there any error apparent on the face of the record. 2. The PIL should also be dismissed as the Petitioner did not exhaust the alternative remedies available to him. And pass any other relief, that this Hon’ble High Court of Matil Danu may deem fit and proper in the interest of justice, equity and goods conscience. For this act of kindness, the Respondent shall duty bound forever pray.

MEMORIAL ON BEHALF OF RESPONDENT

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