IN THE

HONOURABLE SUPREME COURT OF INDIA

WRIT PETITION NO………………. ……OF 2010

[UNDER ARTICLE 32]

IN THE MATTER OF:

BHUWAN………………………….. PETITIONER

VERSUS

STATE OF TALUNA & OTHERS……………....

RESPONDENT

MEMORIAL ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS

LIST OF ABBREVIATION……………………………………. I

INDEX OF AUTHORITIES…………………………………….II,III

STATEMENT OF JURISDICTION…………………………… IV

STATEMENT OF FACTS………………………………………V

ISSUES FOR CONSIDERATION………………………………VI

SUMMARY OF ARGUMENTS…………………………………VII

BODY OF ARGUMENTS

(1) ART. 32 IS MAINTAINABLE……………………………………………1

(2) VIOLATION OF ART. 21……………………………………………….2-4

(3) ESTABLISHMENT OF INDUSTRY POSING A THREAT

TO ECOLOGY…………………………………………….5-7

(4) CREDIBILITY OF ENVIRONMENTAL CLEARANCE……………….7-9

(5) SCHEME OF REHABILITATION………………………………………10

PRAYER…………………………………………………………..11

LIST OF ABBREVIATIONS

AIR ALL INDIA REPORTER Art. ARTICLE AP ANDHRA PRADESH EIA Environment Impact Assesment FDI Foreign Direct Investment Govt. Government Hon’ble Honourable i.e That is MoEF Ministry of Environment and Forest Pat. Patna PIL Public Interest Litigation SC Supreme Court SCC Supreme Court Cases Sec. Section ST Schedule Tribe Supp. Supplementary U.P. Uttar Pradesh U.O.I Union Of India Viz. Namely

V. Versus

(I)

INDEX OF AUTHORITIES

[ACTS AND STATUTES]

The Constitution of India, 1950 The Environment (Protection) Act,1986 The Environment Protection Rules, 1986

Displaced Persons (Compensation and Rehabilitation) Act, 1954 The Indian Forest Act, 1927 Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of

Forest Rights) Act, 2006

[ARTICLES]

C.M. Jariwala: “Complex Enviro-Techno Science Issues: Judicial direction

[BOOKS]

D.D. Basu, Shorter Constitution Of India,(Wadhwa & Company Law Publishers, Nagpur, 13th edn., 2004) H.M. Seervai, Constitutional Law Of India, (Universal Publishing Pvt. Ltd., 4th edn., Vol.1) P.Leelakrishnan, Environment Law in India,( Lexis Nexis Butterworths Wadhwa Nagpur, 3rd edn.,2008)

[CASES] 1. Tarun Bharat Sangh , Alwar v. U.O.I, AIR 1992 SC 514

2 .Olga Tellis v. Bombay Municipal Corp., AIR 1986 SC 180

3. P. Rathinam v. U.O.I , AIR 1994 SC 1844

4 . Shantisar Builders v. Naryan Khimalal Totamae, AIR 1990 SC 630

5. Barudev Yadav v. State of Bihar, AIR 2002 Pat. 64

6. MP Rambabu v. Divisional Forest Officer, AIR 2003 AP 256

7. Madhavi v. Thilakan 8. A.P. Pollution Control Board v. Prof. M.V. Nayudu , A.I.R 1999 SC 812.

9 . Sachinand Pandey v. State of West Bengal AIR 1987 SC1109.

10. Vellor Citizens Welfare form v. UOI AIR1996 SC2715

11. M.C. Mehata v. Kamal nath (1997) 1 SCC 388

(II)

12. Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P, 1987

Supp SCC 4872

13. Goa Foundation, Goa v. Diksha Holdings pvt. Ltd., AIR2001 SC 184

14. M.C. Mehta v. U.O.I , AIR 1988SC 382

15. Vedire Venkatta Reddy v. U.O.I, AIR 2005 AP 155

16. Vedanta Alumina Ltd. v. Praffulla Samantra & others

17. Essar Oil Limited v. Halar Utkarsh Samiti & Others,

18. Kamal Nagar Welfare Association v. Govt. Of Andhra Pradesh, AIR 2000 AP 132

(III) STATEMENT OF JURISDICTION

The petitioners in the present case have approached the Hon’ble Apex Court of India

under Art. 32 of the Constitution of India.

The Operative part of Art.32 provides-----

“(1) The right to move the Supreme Court by appropriate proceedings of the

enforcement of the rights conferred by the part is guaranteed.

(2) The Supreme Court shall have power to issue directions of orders of writs, including

writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,

whichever may be appropriate, for the enforcement of any of the rights conferred by this

part.”

All of which is urged in detail in the written submission and is submitted most

respectfully.

(IV)

STATEMENT OF FACTS I

The state of Taluna is a newly formed state bifurcated from the parent state of Anadi

Pradesh in the eastern region of the U.O.I. 40% of the state is covered by the forest with

about 1 million tribal population. State of Taluna is rich in minerals along with a diverse ,

complex and self-perpetuating eco-system.A proposal was made by the MOEF to convert a

part of forest area into a sanctuary.

II

Unemployment, underdevelopment and illiteracy are rampant in the Haku tribe, a listed

schedule tribe.There is one major industry in the region. A govt. established environmental

organization “GO GREEN”- has set up a govt. approved observatory.

III

There are many protests and agitations on the part of tribal people against the establishment

of steel plant called CORSO which will involve over 3500 acres of the forest land and will

result in relocation of 40000 people. It is estimated that the project will invite FDI of $100

million and possibly create 60,000 jobs. Atleast 10,000 people will be incorporated by the

CORSO who will lose their livelihood by the construction of the plant.

IV

In april 2009, MOEF gives clearance to the plan based on an EIA test carried out in

2000.As per the information of the RTI filed by the Bhuwan, the leader of the Haku tribe it

was discovered that the ten years study carried out by the GO GREEN’s and its

recommendations were completely ignored. (V)

ISSUES FOR CONSIDERATION

I. WHETHER THE WRIT PETITION UNDER ART.32 IS MAINTAINABLE?

II. WHETHER THERE IS VIOLATION OF ART. 21?

III. WHETHER ESTABLISHMENT OF INDUSTRY POSES ANY THREAT TO ECOLOGY?

IV. WHETHER THE ENVIRONMENTAL CLEARANCE HAS ANY CREDIBILITY?

V. WHETHER THE SCHEME OF REHABILITATION IS SUFFICIENT FOR A WEAKER AND SPECIFIC CLASS LIKE SCHEDULE TRIBES?

(VI)

SUMMARY OF ARGUMENTS

1. PETITION UNDER ARTICLE 32 IS MAINTAINABLE A. LOCUS STANDI B. PREMATURITY

2. VIOLATION OF ARTICLE 21:

A. PROTECTION OF LIFE AND PERSONAL LIBERTY B. RIGHT TO LIVELIHOOD:

C. RIGHT TO LIVE WITH HUMAN DIGNITY D. RIGHT TO FOOD AND CLOTHING E. RESTRICTION ON TRADE AND BUSINESS F. LIBERAL INTERPRETATION OF ARTICLE 21 GIVING STATUS OF . FUNDAMENTAL RIGHTS

3. ESTABHISHMENT OF INDUSTRY POSING A THREAT TO ECOLOGY A. PRECAUTIONARY PRINCIPLE: B. PUBLIC TRUST DOCTRINE C. PRINCIPLE OF INTERGENERATION EQUITY D. KYOTO PROTOCOL 1997 E. THIRD GENERATION RIGHTS F. ENVIRONMENT (PROTECTION) RULES, 1986

G. DEVELOPMENT V. ENVIRONMENT H. THE ENVIRONMENT (PROTECTION) ACT 1986

4. CREDIBILITY OF ENVIRONMENTAL CLEARANCE

A. OVERLOOKING OF ENVIRONMENT IMPACT ASSESSMENT B. OBJECTIVES OF EIA

C.ENVIRONMENTAL CLEARANCE AND LOCATION OF INDUSTRIES

5. . INSUFFICIENT SCHEME OF REHABILITATION

A. DISPLACED PERSONS (COMPENSATION AND REHABILITATION) ACT, 1954

B.SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF FOREST RIGHTS) ACT, 2006

(VII) BODY OF ARGUMENTS

I. PETITION UNDER ARTICLE 32 IS MAINTAINABLE :

LOCUS STANDI :

Technical objections as to the legal status of the Petitioner is irrelevant in “class-actions” involving public interest.

PREMATURITY:

The mere existence of a law is enough for a cause of action and Art. 32 and thus the contention of Prematurity is misplaced.

Petitioners concern for the environment, ecology and the wildlife should be shared by the government. The observation of the court is important as it emphasizes the rationale of PIL in environmental issues. It is the duty of the state to protect the environment—a duty imposed by the Directive Principles and Fundamental Duties, introduced by the forty-second amendment of the Constitution.1

The range of issues addressed by PIL has been very broad. It extends from compassion to animals2, privileges of tribal people and fishermen3, to the eco-system of Himalayas and forests4, eco-tourism, land use patterns5 and vindication of an eco-malady of a village.6

_________________________________________ 1. Tarun Bharat Sangh , Alwar v. U.O.I, AIR 1992 SC 5142. AIR 1993 AP 2573. AIR 1996 SC 20414. AIR 1988 SC 2187

5. AIR 1992 Kant. 576. AIR 1986 SC 1446

(1)

II VIOLATION OF ARTICLE 21:

ARTICLE 21:

PROTECTION OF LIFE AND PERSONAL LIBERTY:

No person shall be deprived of his life or personal liberty except according to procedure

established by law.

RIGHT TO LIVELIHOOD:

The state is under negative obligation, viz, not to deprive a person of this right with out

just and fair procedure. any person, who is deprive of his right livelihood except

according to just and fair procedure established by law, can challenged the deprivation as

offending the right of life conferred by Article 21.1

In the present case people of haku tribe dependent on forests and common land for a

variety of non-commercial timber forest products for food and fuel, small timber for

housing, and herbs and medicinal plants for meeting their subsistence livelihood needs.

In a series of meeting held by the Government to resolve the issue, the Company,

CORSO, promises to incorporate only 10,000 persons who may lose their livelihood as a

result of the establishment of this industry.

RIGHT TO LIVE WITH HUMAN DIGNITY:

“The right to live with human dignity and the same does not connote continued drudgery.

It takes within its fold some of the fine graces of civilization which makes life worth

having and that the expanded concept of life would mean the tradition, culture and

heritage of the person concerned.”2.

_____________________________________

1.Olga Tellis v. Bombay Municipal Corp., AIR 1986 SC 180

2.P. Rathinam v. U.O.I , AIR 1994 SC 1844

( 2 )

In the present case the haku tribe does not want to relocate from their natural and

indigenous home and there many protest and agitations across these areas. It is natural

that the man living in the hills and valleys is dependent for survival on natural resources.

To remove him and rehabilitate him in the plains is taking a fish from the river and

putting it into an artificial reservoir or an aquarium where it might survive but can never

be happy.

RIGHT TO FOOD AND CLOTHING:

The right to life under article 21 would include the right to food and clothing, decent

environment and reasonable accommodation to live in. the difference between the need

of an animal and a human being for shelter has to be kept in view. For the animal, it is the

bare protection of the body, for a human being, it has to be suitable accommodation

which allows him to grow in all aspects-physical, mental and intellectual.”1

RESTRICTION ON TRADE AND BUSINESS :

The Patna High Court struck a balance and held that for the protection of environment,

the fundamental right of trade and business under Art. 19(1)(g) must be read together

with provisions in Art. 12,14,21,48-A and 51-A(g) of the Constitution.2

LIBERAL INTERPRETATION OF ARTICLE 21 GIVING STATUS OF

FUNDAMENTAL RIGHTS:

Article 21 of the Constitution provides the right to live a decent life, a good environment

and maintenance of ecology must be held to have primacy over the statutory right to hold

and enjoy the property. The right to pollution free environment and protection of ecology

came to acquire the status of a fundamental right under Article 21 by giving liberal

interpretation.3.

______________________________________

1.Shantisar Builders v. Naryan Khimalal Totamae, AIR 1990 SC 630

2.Barudev Yadav v. State of Bihar, AIR 2002 Pat. 64

3.MP Rambabu v. Divisional Forest Officer, AIR 2003 AP 256

(3)

Madhavi v. Thilakan

The Kerela High Court referred to Article 47, 51-A(g) and 21 of the Constitution and

held as follows:

To say that a workshop of factory should not be closed down, as it provides livelihood to

some persons unmindful of the consequences to others, would be to say the untenable.

Constitutionally recognized values cannot be ignored.”

(4)

III.ESTABHISHMENT OF INDUSTRY POSING A THREAT TO ECOLOGY:

PRECAUTIONARY PRINCIPLE:

Precautionary principle is based on the theory that it is better to err on the side of

caution, and prevent environmental harm which may indeed become irreversible.

Precautionary principle anticipated action to be taken to prevent harm.1

The precautionary principle makes it mandatory for the state government to anticipate,

prevent and attack the causes of environmental protection degradation.2

The onus of proof is on the actor or the developer industrialist to show that his action is

environmentally benign.3

Thus it is high time that the government take proper initiative in the present context and

prohibit the establishment of industry to sustain and preserve the rich and diverse

ecosystem.

PUBLIC TRUST DOCTRINE:

The state is the trustee of all national resources which are by nature meant for public use

and enjoyment. Public at large is the beneficiary of the running water, airs, forest and

ecologically fragile lands. The state as a trustee is under a legal duty to protect to natural

resources; these resources is meant for public use can not be converted into private

ownership.4

Article 48-A deals with the protection and the improvement of the environment and

safeguarding of forests and wild life: it provides that the state shall endeavour to protect

and improve the environment and to safeguard the forests and wildlife of the country.

In the present case a proposal was made by the ministry of environment and forest to the

government to convert the lake Sokka into a sanctuary .Thus it imposes a moral

obligation on the government to prohibit the establishment of the industry._____________________________________

1. A.P. Pollution Control Board v. Prof. M.V. Nayudu , A.I.R 1999 SC 812.

2 .Sachinand Pandey v. State of West Bengal AIR 1987 SC1109.

3.Vellor Citizens Welfare form v. UOI AIR1996 SC2715

4.M.C. Mehata v. Kamal nath (1997) 1 SCC 388

(5)

PRINCIPLE OF INTERGENERATION EQUITY:

The principle of intergeneration equity envisage an emergence of a right of the unborns.

This right to intergeneration equity and right of unborn to clean environment has emerged

from Articles 21, 48-A, 51-A(g), and that “existing generation was ordained not to

plunder but us Nature according to one’s capacity to repay”.1

KYOTO PROTOCOL 1997:

The protocol provides that member nations have to reduce the emission of green house

gases by at least 5%, below 1990 levels in the commitment period of 2008-2012.2

THIRD GENERATION RIGHTS :

Todays emerging jurisprudence, environment right, which encompass a group of

collective rights, are describes as “third generation rights”. The first generation rights are

political rights while the second generation rights are social and economical. Thus, right

to have a noise free environment is a third generation right.3

The forest have been home to the indeginous tribe of haku and thus their rights are to be

protected and preserved.

ENVIRONMENT (PROTECTION) RULES, 1986

Rule 5 deals with prohibition and restriction on the location of industries and the carrying

on of processes and operations in different areas.

DEVELOPMENT V. ENVIRONMENT:

Governments – both are the centre and the state- must realize and remain cognizant of the

fact that the stake involved in the matter is large and far reaching. The evil consequences

________________________

1.C.M. Jariwala: “Complex Enviro-Techno Science Issues: Judicial direction

2. Article 3

(6).

would last long. Once that unwanted situation sets in, amends or repairs would not be

possible the greenery of India, as some doubt, may perish and the Thar desert may

expand its limit.1

As the forest and bio-diversity of Taluna is complex and characterized by self

perpetuating eco system and is vulnerable and is liable to be destroyed by the

establishment of industry.

THE ENVIRONMENT (PROTECTION) ACT 1986

The central government shall have power for restriction of areas in which any industries,

operations or processes shall not be carried out or shall be carried out subject to certain

safeguards.2 The court should approach that no activities which would ultimately lead to

unscientific and unsustainable development and ecological destruction at all be allowed

and court must scrupulously try to protect the ecology and environment.3

The central government empowered to take all such measures as deemed necessary or

expedient for the purpose of protecting and improving the quality of environment and

preventing, controlling and abating environmental pollution.4

IV.CREDIBILITY OF ENVIRONMENTAL CLEARANCE:

Validity of environment clearance:

The validity of the prior environmental clearance as follows:

(a) for river valley project - 10 years

(b) area development or township - upto or to responsibility of the develop or

which can be extended upto 5 years

(c) all other projects - 5 years 4

1.Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P, 1987 Supp SCC 487

2. Section 3(2)(v)

3.Goa Foundation, Goa v. Diksha Holdings pvt. Ltd., AIR2001 SC 184

4.. M.C. Mehta v. U.O.I , AIR 1988SC 382

5.Para 9 of the notification, dated September 14, 2006

(7)

The present case falls within the “all other projects” and thereby the environment impact

assessment test carried out in 2000 is no more valid which was given in april 2009 by

ministry of environment and forest.

OBJECTIVES OF EIA:

The effects of a project on the environment must be assessed in order to take account of

the concerns to protect human health, to contribute by means of a better environment to

the quality of life, to ensure maintenance of the diversity of species and to maintain the

reproductive capacity of the ecosystem as a basic resource of life.1

ENVIRONMENTAL CLEARANCE AND LOCATION OF INDUSTRIES:

Rule 5 of the Environment Protection Rules, 1986, read with Section 3(1) and Section

3(2) empowers the Central Government to prohibit or restrict the location of industries

and carrying on of processes and operations in different areas, after taking into various

consideration, such as standards for quality of environment in an area, the maximum

allowable limits of concentration of environmental pollutants(including noise) for an

area, the likely emission or discharge from the proposed industry. Clearance would be so

accorded only on the basis of an Environmental Impact Assessment of the project and the

necessary Environmental Management Plan for the prevention, elimination or mitigation

of the adverse impacts, right from the inception stage of the project. (vide notification

dated 29-1-1992).

OVERLOOKING OF ENVIRONMENT IMPACT ASSESSMENT:

In one of the case it has been made clear that as environmental clearance is mandatory

procedure under notification 24-4-1994 must be meticulously followed. Only on such

clearance by the Impact Assessment Agency of the Central Government, the project of

construction of dam by the State Government can be started. The court held that it was

not permissible for the State Government of Andhra Pradesh to proceed ahead with the

_______________________

1. Council on European Economic committee

(8)

implementation of dam construction project till such clearance is obtained.1

In the present case recommendation given by the GO-GREEN was completely ignored by

the authority which consists comprehensive study of 10 years on environment of the

region. This shows that clearance was not meticulously examine by the authorities.

IN ESSAR OIL LIMITED V. HALAR UTKARSH SAMITI & OTHERS,

For this purpose the State Government must ask for and obtain an environmental impact

report from expert bodies. The applicant must also come forward with an environmental

management plan which must be cleared by the experts. To prevent possible future

damage, the State Government must also be satisfied that the damage which may be

caused is not irreversible and the applicant should be prepared and must sufficiently

secure the cost of reversing any damage which might be caused. There is also a strong

link between Article 21 and the right to know particularly where "secret Government

decisions may affect health, life and livelihood".

In the present case a member of GO GREEN which is an environmental organization

having a government approved observatory suggested a compromise: an environment

management system at the plant set-up and managed by GO GREEN but CORSO i.e. the

proposed steel company refuses to accept those terms.2

__________________________________________

1.Vedire Venkatta Reddy v. U.O.I, AIR 2005 AP 155

2.Vedanta Alumina Ltd. v. Praffulla Samantra & others

(9)

V. INSUFFICIENT SCHEME OF REHABILITATION

DISPLACED PERSONS (COMPENSATION AND REHABILITATION) ACT, 1954

The preamble sets out to provide for the payment of compensation and rehabilitation grants to displaced persons and for matters connected therewith.

SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF FOREST RIGHTS) ACT, 2006

The preamble sets out ------An Act to recognize and vest the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations but whose rights could not be recorded; to provide for a framework for recording the forest right so vested and the nature of evidence required for such recognition and vesting in respect of forest land

And whereas it has become necessary to address the long standing insecurity of tenurial and access rights of forest dwelling Scheduled Tribes and other traditional forest dwellers including those who were forced to relocate their dwelling due to State development interventions

Man living in the hills and valley is dependent for survival on natural resources. To remove him and rehabilitate him in the plains is taking a fish from the river and putting it into an artificial reservoir or an aquarium where it might survive but can never be happy.1

As part of beautification of an encroached area, it is just and proper if the encroachers, who are poor, are rehabilitated in a healthier and more congenial habitat with better civic amenities.2

In the present case CORSO promise to incorporate and rehabilitate only 10000 persons where as the number of affected people is around 40000 people belonging to the tribal belt.

____________________________ 1.AIR 2004 SC 8672.Kamal Nagar Welfare Association v. Govt. Of Andhra Pradesh, AIR 2000 AP 132

(10)

PRAYER FOR RELIEF

Whereof in the light of the issues raised, arguments advanced and authorities cited it is humbly prayer before the Hon’ble Apex Court that it may be pleased to-

1. That the petition is to be allowed.

2. That the writ of mandamus to be passed for injunction against the establishment of the industry.

3. Grant any other relief which seems fit to the Hon’ble Apex Court as per the powers given under Art.32 of Constitution of India.

AND FOR THIS ACT OF KINDNESS YOUR LORDSHIP THE PETITIONERS SHALL AS IN DUTY BOUND EVER PRAY.

All of Which Is Humbly Submitted

S/D-------------------------------(Counsel for the Petitioners

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