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DEPARTMENT OF LAWS, HPU Moot Court, 2018

BEFORE THE HON’BLE HIGH COURT OF JUDICATURE of RAJASTHAN

WRIT JURISDICTION Writ No.(C)_____ Of 2018 Under Article 226, 227 of Constitution
of India
In the matter of challenging the Environment clearance certificate
(Filed with in limitation)

Prakriti ………………………………………………………Appellant.

Versus

State of Rajasthan ……………………………………………………. Respondent.

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S

COMPANION JUSTICES OF THE HIGH COURT OF JUDICATURE OF RAJASTHAN

MEMORIAL ON BEHALF OF THE PETITIONER

Drawn By: - Bhawani Rajvir Singh Mandiyal. Roll No:- 15032, 9171
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TABLE OF CONTENTS
S.No. CONTENTS Pg. No.

1. List of abbreviations 3

2. Index of authorities. 4

3. Statement of jurisdiction 5

4. Statement of facts. 6

5. Issues raised 7

6. Summary arguments 8

7. Pleadings 9-13

8. Prayer 14
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LIST OF ABBREVIATION
Serial No. Abbreviation Explanation

1 ECC Environment Clearance

Certificate

2 HC High Court

3 SC Supreme Court

4 Page Pg.

5 Number No.
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INDEX OF AUTHORITIES

Indian Supreme Court Cases:

1. Narendra Kumar Chandla V. State of Haryana AIR 1995 SC 519
2. Sunil Batra V. Delhi Administration AIR 1978 SC 1675
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STATEMENT OF JURISDICTION

It is humbly submitted that the Petitioner has approached the Hon’ble HC Court of Rajasthan

invoking its jurisdiction under Article 226 of Indian constitution “Notwithstanding anything in

Article 32 every High Court shall have powers, throughout the territories in relation to which

it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any

Government, within those territories directions, orders or writs, including writs in the nature of

habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the

enforcement of any of the rights conferred by Part III and for any other purpose”

& under Article 227 of Indian Constitution “Power of superintendence over all courts by the

High Court: Every High Court shall have superintendence over all courts and tribunals

throughout the territories interrelation to which it exercises jurisdiction”

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STATEMENT OF FACTS

1. That, to meet an acute scarcity of water, the State of Rajasthan in India has taken
a policy decision to construct number of dams in the State so that the rainy water
could be accumulated in the dams.
2. That, one of such dams is to be constructed in a district which is more severely
affected. The construction of the dam affects ten villages which are adjoining to
the location of the dam.
3. That, the villagers have agriculture as their main occupation and as a
consequence of water stored in the dam, their agricultural fields would either be
submerged or get water logged which would deprive them of their right to
livelihood.
4. That, the state of Rajasthan gave contract to Grasim Industries Limited by
floating tenders. Grasim Industries Limited applied for environment clearance
to Ministry of Environment and Forest for the purpose of constructing dam.
5. That, Environment clearance has been given to the company on the ground that
the Government has an authority to do so in larger public interest.
6. That, the agriculturists in the village are also not in favour of the construction
of the dam since they would be displaced from the land where the dam is to be
constructed and would be deprived of their livelihood.
7. That, “Prakriti” (NGO) which is made for the protection of environment in India
is fighting for the cause of environment has appealed to the Government not to
proceed with the construction of the dam since it would lead to an environment
imbalance in the State.
8. That, the State of Rajasthan is determined to proceed with the construction of
dam in public interest. “Prakriti” has therefore filed a petition under Article 226
and Article 227 of the Constitution of India before the High Court of Judicature
of Rajasthan.
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ISSUES RAISED

ISSUE 1.

Whether the Environment Clearance Certificate granted is bad in letter and against the

spirit of the Constitution and the national interest?

ISSUE 2.

Whether the construction of said dam is in violation of Article 21 of Constitution of India

as regard to life and personal liberty of the agriculturists in the area?

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SUMMARY OF ARGUMENTS

ISSUE 1.

Whether the Environment Clearance Certificate granted is bad in letter and against the

spirit of the Constitution and the national interest?

It is humbly submitted that ECC granted to the state for the construction of dam is bad in letter

as it violated the provisions under land Acquisition act, Rajasthan land acquisition act,

environmental impact assessment notification, 2006 ISSUE 2.

Whether the construction of said dam is in violation of Article 21 of Constitution of India

as regard to life and personal liberty of the agriculturists in the area?

It is humbly submitted that the right to life and personal liberty of the agriculturists in the area

will violate the article 21 of constitution of India as Article 21 ensures the right to live with

dignity, livelihood, shelter.

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PLEADINGS

ISSUE 1. Whether the Environment Clearance Certificate granted is bad in letter and

against the spirit of the Constitution and the national interest?

Preamble of land Acquisition act

1. It is humbly submitted that the preamble of Acquisition Act, 2013 provides” An Act to

ensure, in consultation with institutions of local self-government and Gram Sabhas

established under the Constitution, a humane, participative, informed and transparent

process for land acquisition for industrialisation, development of essential

infrastructural facilities and urbanisation with the least disturbance to the owners of the

land and other affected families and provide just and fair compensation to the affected

families whose land has been acquired or proposed to be acquired or are affected by

such acquisition”

2. It is humbly submitted that the object & purpose of the act is to ensure the least

disturbance to owners of the land and affected families but in the instant case the

construction of the dam would affect ten villages which are adjoining to the location of

the dam.

Provisions under Land Acquisition Act

3. It is humbly submitted that under Section 4 of land acquisition act, 2013 provides

“preliminary investigation for determination of social impact and public purpose”

where an appropriate government who acquires land has to concern the local panchayat

or Municipality or Municipal Corporation, as the case may be, at village level or ward

level, in the affected area and carry out a Social Impact Assessment study in

consultation with them.

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4. It is humbly submitted that the government of Rajasthan has failed to consult the local

public who is likely to get effected by the construction of the dam.

Rajasthan land Acquisition Act

5. It is submitted that under section 2 (2) of Rajasthan land Acquisition Act, provides

“Application of the Act. - (1) The provisions of this Act shall apply when the State

Government acquires land for its own use, hold or control or for use, hold and control

of a local authority or a corporation owned and controlled by the State, for public

purposes. (2) The provisions of this Act shall also apply, when the State Government

acquires land for the following purposes, namely: - (a) for public private partnership

projects, where the ownership of the land continues to vest with the State Government.

(b) for private companies for public purpose: Provided that in the case of acquisition

for(i) private companies, the prior consent of at least eighty percent of persons

interested; and (ii) public private partnership projects excluding infrastructure projects,

the prior consent of at least sixty percent of the persons interested, shall be obtained in

the prescribed manner.”

6. It is humbly submitted that the government failed to take consent of the local people

which is again in violation of provisions of the land acquisition act.

Environmental Impact Assessment Notification, 2006

7. It is humbly submitted that under Environmental Impact Assessment Notification, 2006

, for the grant of environmental clearance certificate , the Central Government hereby

directs that on and from the date of its publication the required construction of new

projects or activities or the expansion or modernization of existing projects or activities

listed in the Schedule to this notification entailing capacity addition with change in

process and or technology shall be undertaken in any part of India only after the prior
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environmental clearance from the Central Government or as the case may be, by the

State Level Environment Impact Assessment Authority, duly constituted by the Central

Government under sub-section (3) of section 3 of the said Act, in accordance with the

procedure specified hereinafter in this notification.

8. It is humbly submitted that, in the instant case the Grasim industry did not take the ECC

from the State Level Environment Impact Assessment Authority & have not undergone

the 4 stages mentioned under Sec 7 of the notification, where as the ministry of

environment and forest has granted the ECC on the ground that the government has an

authority to do so in public interest.

9. It is humbly submitted that clearance granted by the Ministry of Environment and

Forests is not legal and proper hence construction of dam shall not be taken place and

even if takes place it shall be constructed where there is no harm to public at large.

10. It is humbly submitted that, the agriculturalists are also not in favour of the construction

of the dam since they will be displaced from the land where the dam is to be constructed

and would be deprived of livelihood.

11. It is submitted that the said dam is an earth fill dam which does not require the large

area to construct dam where 10 villages will be submerged in water. The purpose of the

construction of earth fill dam is raise the water level in the ground.
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Issue No.2 Whether the construction of said dam is in violation of Article 21 of

Constitution of India as regard to life and personal liberty of the agriculturists in the area?

1. It is humbly submitted that the construction of dam is in violation of article 21 of the

constitution of India as it guarantees right to live with decently as a member of a

civilized society.

2. It is humbly submitted that a constitution bench of Hon’ble SC reiterated in the case of

Sunil Batra V. Delhi Administration1 with approval the above observations and held

that the right to life would also include person’s traditions, culture, heritage and all that

gives meaning to the man’s life. It gives right to live in peace, to sleep in peace and the

right to repose and health.

3. It is humbly submitted that, in the instant case, by the construction of the said earth fill

dam would violate the right to life of the villagers.

4. It is humbly submitted that in the case of Narendra Kumar Chandla V. State of

Haryana2, the Hon’ble SC held that the right to livelihood as an integral facet of right

to life.

5. It is humbly submitted that right to shelter has been held to be fundamental right which

from the right to residence secured under Article 19 (1)(e) and right to life guaranteed

under Article 21.

6. It is humbly submitted that under Article 25(1) of Universal Declaration of Human

Rights Everyone has the right to a standard of living adequate for the health and

wellbeing of himself and of his family, including food, clothing, housing and medical

care and necessary social services, and the right to security in the event of

1
AIR 1978 SC 1675
2
AIR 1995 SC 519
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unemployment, sickness, disability, widowhood, old age or other lack of livelihood in

circumstances beyond his control.

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PRAYER

Where in light of the issues raised, arguments advanced &authorities cited, it is humbly

prayed that this Hon’ble Court may be pleased to adjudge &declare that:

1. To call for records of the Environmental Clearance Certificate & Quash the Environmental

Clearance Certificate granted to the Grasim Industries.

2. To ensure the right to life and personal liberty of the agriculturalists in the area.

& pass any other order, direction, or relief that this Hon’ble Court may deem fit in the

interests of justice, equity &good conscience.

Date: 10.04.2018.

All of which is humbly prayed

15032

Counsel for the Petitioner.