GP (2) , petitioner

IV Mahamana Malviya National Moot Court Competition – 2016

BEFORE THE HON’BLE SUPREME COURT OF RHODO

APPELLATE WRIT JURISDICTION PUBLIC INTEREST LITIGATION

W.P. (CIVIL) NO. ___ OF 2016

UNDER ARTICLE 136 OF THE CONSTITUTION OF RHODO In the matter of Article 19 and Article 21 of Constitution of Rhodo

UNION OF RHODO…………….………………………………..PETITIONER v. DASHANAN MOTORS LTD. ………..……………………. RESPONDENTS

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF RHODO

MEMORANDUM ON BEHALF OF THE PETITIONER

GP

TABLE OF CONTENTS Table of Contents ........................................................................................................................

i

List Of Abbreviations .............................................................................................................. iii Index Of Authorities ..................................................................................................................

iv

Statement of Facts……………………………………………………………………… viii Statement of Issues ................................................................................................................ xi Summary of Arguments .......................................................................................................... xii Arguments Advanced.................................................................................................................

1

I.

is

Whether the directive issued unreasonable…………………………

I.1 I.2. I.3.

by

the

Government

No violation of Article 19(1)(g)……………………………………………….1 Restriction imposed was unreasonable................................................................1 Reasonable Restriction meaning......................................................................3

II. Whether There Has Been Violation Of Article 21 of the Constitution..........................6 II.1. Violation of Article 21..........................................................................................6 II.1.1 Violation of right to live in a healthy environment...........................................6 II.3. There is violation of Right to life of Endangered Species and Protection of Natural Resources......................................................................................................................9 III. Whether the compensation paid by the company should be enhanced .................................................................................................................................. 11 III.1. III.2. III.3 ……….12 III.3.1 12

Location of Construction Unit at an improper place 11 Pollution caused by DML, violated fundamental rights 11 Damages awarded should be enhanced………………………………. Polluter’s Pay Principle…………………………..…………………………… Prayer……………………………………………………………………………

15

LIST OF ABBREVIATIONS ¶

Para

¶¶

Paras

AIR

All India Reporter

All

Allahabad

Art.

Article

Del

Delhi

Ed.

Edition

Mad

Madras

DML

Dashanan Motors Ltd.

p.

Page No. PIL

Public Interest Litigation

SC

Supreme Court

SCC

Supreme Court Reports

SCJ

Supreme Court Journal

Sec.

Section

u/a

Under Article

iii MEMORIAL ON BEHALF OF THE PETITIONER

INDEX OF AUTHORITIES CASES Abhilash Textile v. Rajkot Municipal Corpn., AIR 1988 Guj 573 Amarnath Shrine,re, (2013) 3 SCC247,276 Bombay Dyeing & Mfg. Co. Ltd (3) v. Bombay Environmental Action Group, (2006) 3 SCC 434:AIR 2006 SC 1489 Burrabazar Fire Works Dealers Association v. The Commissioner of Police, Calcutta, A.I.R 1998 Cal. 121 p.134 Centre for Environmental Law, World Wide Fund, India v. Union Of India 37 Consumer Education and Resrarch Centre v. Union of India,(1995) 3 SCC 4220 D.S. Rana v. Ahemdabad Municipal Corpn, AIR 2000 Guj 454 Francis Coralis v. Union Territory of Delhi AIR 1981 SC 746 | 16 Free Legal Aid Cell Shri Sugan Chand Aggarwal v. Govt. of NCT of Delhi and Ors., AIR 2001 Del 4541 Hinch Lal Tiwari v. Kamla Devi, (2001) 6 SCC 213 ;AIR 2001 SC 3215 I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861 Indian Council for Enviro-Legal Action v. Union of India. (1996) 3 SCC 212 at 215 Intellectuals Forum v. State of A.P., (2006) 3 SCC 549: AIR 2005 SC 1975 Jackson & Co. v. Union of India, AIR 2005 Del 334 L.K. Koolwel v. State of Rajasthan , AIR 1988 Raj 2. 22 M.B. Cotton Assn. Ltd. V. Union of India, AIR 1954 SC 634 M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213: AIR 2000 SC 1997 9, 31 M.C. Mehta v. Kamal Nath , (2002) 3 SCC 653 M.C.Mehta v. Union of India (1987) 1 SCC 395 M.C. Mehta v. Union Of India, (1987) 4 SCC 463 ; AIR 1988 SC 1037. 35 M.C. Mehta v. Union of India,(1988) I SCC 471 13 M.C. Mehta v. Union of India, (1996) 8 SCC 462 : AIR 1996 SC 1977 11 iv MEMORIAL ON BEHALF OF THE PETITIONER

M.C. Mehta v. Union of India (1997) 2 SCC 353 12 M.C. Mehta v. Union of India, (2006) 3 SCC 399; AIR 2006 SC 1325 1 M.C. Mehta v. Union of Kamal Nath, AIR 2000 SC 1997 2 M.C. Mehta v. Union of India (2009) 6 SCC 142 38 Maneka Gandhi v. Union of India, AIR 1978 SC 567 15 Noida Memorial Complex Near Okhla Bird Sanctuary ,re (2011) I SCC 744 33 P.S.R. Sadhanantham v. R.S Naik, AIR 1992SC 1701 17 R. L. & E. Kendra, Dehradun v. State of U. P. A.I.R 1985 S.C. 652 24, 42 Rajneesh Kapoor v. Union of India , AIR 2007 MP 204 19 Ratlam Municipality v. Vardhi Chand , AIR 1980 SC 1622 21 Research Foundation for Science v. Union of India, AIR 2012 SC 2627 52 S. Jagannath, (1997) 2 SCC 87 :AIR 1997 SC 811 10 Samaj Parivartana Samudaya v. State of Karnataka, (2013) 8 SCC 154,193;AIR 2013 SC 3217 29 State of H.P. v. Umed Ram Sharma, (1986) 32 State of Bombay v. F.N. Balsara, AIR 1951 SC 318,328:1951 SCR 682 8 State of Madras v. V.G.Row, AIR 1952 SC196 ;1952 SCR 597 6 Sterlite Industries (India) Ltd. V. Union of India, (2013) 4 SCC 575 51 T. Damodar Rao v. Municipal Corpn. Of Hyderabad , AIR 1987 AP 171 34 Tirupur Dyeing Factory Owners Assn. v. Noyyal River Ayacutdars Protection Assn., (2009) 9 SCC 737 53 BOOKS 1. Basu D.D , Constitution of India ,14th edition 2009, LexisNexis, Butterworths Wadhwa Publication Nagpur. 2. Desai . A. Ashok, Environmental Jurisprudence , 2 nd Edition 2002, Modern Law House.

v MEMORIAL ON BEHALF OF THE PETITIONER

3. Dhirajlal & Ratanlal, The Law of Torts.26 th edition 2012, LexisNexis Butterworths Wadhwa. 4. Divan Shyam , Rosencranz Armin ,Environmental Law and policy in India, Second Edition 2004, Oxford India paperbacksS.C.Shastri, Environmental Law, Fifth edition 2015, Eastern Book Company, Lucknow. 5. Doabia T.S, Environmental & Pollution laws in India, 1 st Edition 2005, Wadhwa Nagpur. 7. Jain M.P., Indian Constitutional Law, 6th Edition 2011, LexisNexis Butterworth Wadhwa Nagpur. 8. Jaswal P.S., Environmental Law, 2nd Edition 2006, Allahabad Law agency.

LEGAL DATABASES 1. Manupatra 2. SCC Online 3. West Law 4. Hein Online LEGISLATIONS 1.

The Constitution of India, 1950 2. Environment Protection Act, 1986 3. Air (Prevention and Control of Pollution) Act, 1981

CONVENTIONS 1. Stockholm Declaration, 1972

vi MEMORIAL ON BEHALF OF THE PETITIONER

STATEMENT OF JURISDICTION The Hon’ble Supreme Court of Rambo has the jurisdiction in this matter under Article 136 of the Constitution of Rambo which reads as follows: “136. Special leave to appeal by the Supreme Court (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India (2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.”

vii MEMORIAL ON BEHALF OF THE PETITIONER

Statement of Facts Republic of Rhodo is a sovereign, socialist, democratic republic situated in the southern part of the Asian continent. It was under colonial rule of European powers for over two centuries and finally won its independence in the mid of twentieth century. Immediately, after independence, the intrinsically socialist government of Republic of Rhodo, with the Rhodo National Congress (RNC) at its helm embarked on a rapid industrialisation drive with the establishment of various state owned public sector industries and enterprises. One such establishment was Dashanan Motors Ltd. (DML), its flagship product being Pushpak, a car loosely modelled on the English automobile Morris Minor and buses which were marketed under the name Garuda. In the meantime, there was a growing concern in the international community regarding the degradation of environment, which led to various international treaties and conferences with the aim of creating a consensus among nations to make their environmental safety norms more stringent. The Republic of Rhodo was an active participant and signatory in many of these significant and subsequently it passed various legislations to that effect including an amendment to its Constitution. It also beefed up its vehicle emission standards and issued a directive to the Pollution Control Boards (PCBs) of all its provinces to ensure strict compliance to the afore-mentioned norms. The factory ever since its inception discharged all its trade effluents in the river Asli, has its confluence with the Khari Sea. There it has created the largest riverine delta network on the planet, the Mohana which incidentally has been recognised as an extremely important biosphere reserve by several international organisations. It has a vast spectrum of flora and fauna species and is inhabited by a number of endangered species, and has extensive foliage of mangroves. It was in the year 2015 that certain drastic changes were observed in the flora and fauna, and the health of the natives of this region and the over ground breathing roots of these mangroves were found to be plugged with sludge as a result of which vast patches of mangrove forests withered away and died. Moreover, bloated bodies of dead riverine dolphins unique to the Mohana delta floated up on the shores. The natives of the region started complaining of having developed black sores on various parts of the body and shortness of breath.

viii MEMORIAL ON BEHALF OF THE PETITIONER

This raised an alarm amongst the observing scientists and activists of the Mohana Biodiversity Conservation Forum (MBCF). Their study revealed that the water of the river Asli was heavily polluted due to the emission of trade effluents from the plant of DML. It contained various chemicals which are hazardous to flora and fauna of the region. It was also found that some of the major pollutants of the river were sulphur and heavy metals which could have been the cause of death of the dolphins and the black-sore disease. Therefore, it opined that the DML was responsible for such environmental deterioration. The government of Republic of Rhodo, in the mid of the year 2015, after proper consideration and deliberation, and also under the influence of various pressure groups working for environmental conservation opted Euro VI from 1 January 2016, and issued a directive to this effect in October 2015 in which it was strictly ordered to all automobile manufacturing companies to desist the manufacturing and selling all vehicles which do not comply with the new norms. The DML manufactured only three vehicles namely Pushpak Hatchback and Pushpak Sedan among cars and Garuda Premium bus which were noncompliant with the new norms. The board of directors of the company held a meeting on 1 November 2015 at which the vital issues pertaining to compliance with new norms were discussed, and it was concluded that they were not in a position to make the requisite changes in the engines of their products in such a short span. After an exhaustive deliberation it was found that necessary modifications in the engines of the products would require in a time of at least eight months and until the needful is done they would have to lay off their workers and also during this period they will be forced to stop both manufacturing and sale of their products which would incur huge losses. The Board of Directors of the company moved to the Hon’ble High Court of Judicature of Shivpuri on 1st December 2015 seeking issuance of a writ in nature of mandamus so as to get the impugned directive annulled. The writ petition was admitted as WP(C) 9813/2015. The petitioner in this case alleged that the directive of the central government was unconstitutional as it violated their fundamental right to freedom of trade and profession, and also the right to livelihood of their employees. The Hon’ble High Court took the arguments of the DML into proper consideration and ordered in favour of the Petitioners.

The Central Government feeling aggrieved by decision of the High Court

approached the Supreme Court of Rhodo under its appellate jurisdiction. It filed an SLP on 22nd December 2015 which was admitted as SLP 8015/2015. ix MEMORIAL ON BEHALF OF THE PETITIONER

Maya Mehta has been one of the most prominent green crusaders of the legal fraternity of Rhodo. She took up the cause of the MBCF and sent a number of representations to the State Pollution Control Board and the concerned government authorities with detailed evidence of massive air and water pollution caused by the DML plant and its widespread consequences on both human and natural subjects. Aggrieved Ms. Mehta filed a Public Interest Litigation (PIL) in the High Court of Judicature of Northern Province at Shivpuri on 16 November 2015. In the petition she alleged that the reason because of which there was drastic shift in the ecological balance of the deltaic region which had resulted in acute harm to the flora and fauna of the region was the discharge of noxious trade effluents by the DML plant situated on the banks of the river Asli. From the Hon’ble High Court she sought relief in terms of damages and a writ in nature of mandamus to be issued to the State Pollution Control Board to close the plant of DML. After having a heard the arguments and thorough examination, the High Court in its final judgment dated 21st December held that due to this heavy discharge of pollutants in the river that the flora and fauna of the deltaic region were badly affected, and also that it was due to this reason that the natives had developed black sore diseases and ordered the company to pay damages worth Rs.10 crores to the aggrieved natives. The court further it decided not to issue any directive to shut the plant because if the plant was closed then it would render about 45000 employees of the enterprise unemployed, and it would also leave around 2 lacs family members of these employees in misery, hunger and squalor. But, Ms. Maya Mehta and the aggrieved natives were unsatisfied with the amount of damages awarded. She also said that the order of the court was not bold enough so as to meet the ends of justice because it had failed to issue a directive to shut the plant which had constantly for over a period of years polluted the river Asli and had disturbed the ecological harmony of the region. She filed a Special Leave Petition before the Supreme Court of Republic of Rhodo seeking enhancement of the awarded damages and closure of the plants. The Supreme Court admitted the Special Leave Petition under SLP 031/2016. After a couple of hearings, SC decided to club Special Leave Petition no. SLP 031/2016 and SLP 8015/2015 as they originated from the same subject matter and the same parent company, and also because Ms. Mehta was the council for the central government in the latter. The Supreme Court has set both of these cases to be decided before a division bench on 1st April 2016 for final hearing. x MEMORIAL ON BEHALF OF THE PETITIONER

SUMMARY OF ARGUMENTS Issue I Whether the directive issued by the Government is violative of Article 19 (1) (g) of the Constitution? It is most humbly submitted that the directive issued by the Central Government is not violative of Article 19(1) (g) of the Constitution of Republic of Rhodo as the restrictions imposed by Government was reasonable as they were in furtherance of the directive principles of state policy [Article 48-A] of the Constitution and the Environment Protection Act , 1986.

Issue II Whether there has been violation of Article 21 of the Constitution It is humbly submitted before the Hon‟ble Court that, Article 21 of the Constitution Constitution have been violated as [II.1.1] there is violation of right to live in a healthy environment and [II.1.2] there is violation of right to live in a pollution free environment [II.1.3] there is violation of right to life of endangered species and protection of natural resources Issue III Whether the compensation paid by the company should be enhanced? It is humbly submitted before the Hon‟ble Court that, the compensation paid by the company should be enhanced as , The DML has caused environmental degradation by their respective acts, that being, [III.1] Location of the factory at an Improper Place [III.2] Pollution caused by DML, violated fundamental rights [III.3] Compensation awarded by the High Court not satisfactory and therefore, liable to pay damages for the violation of fundamental rights.

xi

SUMMARY OF ARGUMENTS Issue I Whether the directive issued by the Government is violative of Article 19 (1) (g) of the Constitution? It is most humbly submitted that the directive issued by the Central Government is not violative of Article 19(1) (g) of the Constitution of Republic of Rhodo as the restrictions imposed by Government was reasonable as they were in furtherance of the directive principles of state policy [Article 48-A] of the Constitution and the Environment Protection Act , 1986.

Issue II Whether there has been violation of Article 21 of the Constitution It is humbly submitted before the Hon‟ble Court that, Article 21 of the Constitution Constitution have been violated as [II.1.1] there is violation of right to live in a healthy environment and [II.1.2] there is violation of right to live in a pollution free environment [II.1.3] there is violation of right to life of endangered species and protection of natural resources Issue III Whether the compensation paid by the company should be enhanced? It is humbly submitted before the Hon‟ble Court that, the compensation paid by the company should be enhanced as , The DML has caused environmental degradation by their respective acts, that being, [III.1] Location of the factory at an Improper Place [III.2] Pollution caused by DML, violated fundamental rights [III.3] Compensation awarded by the High Court not satisfactory and therefore, liable to pay damages for the violation of fundamental rights.

xii

1 ARGUMENTS ADVANCED

I. WHETHER THE DIRECTIVE ISSUED BY THE GOVERNMENT VIOLATIVE OF ARTICLE 19 (1) (g) OF THE CONSTITUTION?

IS

It is most humbly submitted that the directive issued by the Central Government is not violative of Article 19(1) (g) of the Constitution of Republic of Rhodo as the restrictions imposed by Government was reasonable. 1.1 No Violation of Article 19 (1) (g) Article 19 (1) (g) of the Constitution confers right upon every citizen to practice any profession or to carry on any occupation, trade or business. But this fundamental right is subject to reasonable restrictions which may be placed in the interest of the general public as provided for in sub clause of Article 19 itself. No one has a right to carry on business so as to cause nuisance to society. One cannot carry on business in a manner by which the business activity becomes a health hazard to the entire society. It is most humbly submitted that the directive issued by the Central Government was not violative of Article 19(1) (g) of the Constitution of Republic of Rhodo as the restrictions imposed by Government was reasonable. 1.2 Restriction Imposed Was Reasonable Article 19 (1) (g) of the Constitution confers right upon every citizen to practice any profession or to carry on any occupation, trade or business. But this fundamental right is subject to reasonable restrictions which may be placed in the interest of the general public as provided for in sub clause of Article 19 itself. No one has a right to carry on business so as to cause nuisance to society. One cannot carry on business in a manner by which the business activity becomes a health hazard to the entire society. Most of the pollution is mainly from trade and business – particularly from industries. It has been found that tanneries, acid factories, tie and die factories, distelleries and now a days the hotel industries are contributing to environmental pollution. Thus it all relates to fundamental right to freedom of trade and commerce/ business guaranteed under Article 19 (I) (g) of the Constitution of Rhodo. Some of these industries or business/trades are carried on in a manner which endangers vegetation cover, animals, aquatic life and human health. But time and again, it has 2

been made clear that this freedom of trade and commerce is not absolute and is subject to certain reasonable restrictions. Therefore any trade or business which is offensive to flora and fauna or human beings cannot be permitted to be carried on in the name of the fundamental right. If the residential buildings are converted to commercial use, it amounts to violation of municipal laws, master plan, and environmental laws. Therefore, the Supreme Court ordered that for selling such residential premises. It was observed that persons do not have right to carry on any trade profession in flagrant violation of regulatory provisions on massive scale.This would also result in environmental pollution.1 In M.C. Mehta v. Union of Kamal Nath 2, the Supreme Court made it abundantly clear that if a hotel is discharging untreated effluent into the river Beas, thereby disturbing the aquatic life and causing water pollution, it cannot be permitted to work. Any disturbance of the basic environment elements namely , air, water and soil, which are necessary for ” life”, would be “hazardous to life”. Thus, the court in the exercise of jurisdiction under Article 32 cannot only award damages but can also levy “fine”-exemplary damages on the erring industry /hotel which will act as a deterrent for others not to cause pollution. The Gujarat High Court in Abhilash Textile v. Rajkot Municipal Corpn.3 made it clear that “the petitioners cannot be allowed to reap profit at the cost of public health. This is the mandate of law”. In the abovementioned case the petitioners (about 165), conducting the business of dying and printing works in Rajkot area, were discharging dirty water from the factory on the public road and in public drains without purifying the same , thereby causing damage to the public health. The petitioners claimed that they were carrying on the business for the last 20-25 years and the industry was providing employment to 20,000 to 30,000 families. Thus, notice to close down would be very harsh as they would be compelled to close down the factory and would also be violative of Article 19(I) (g). It was held that the petitioner had no fundamental right under Article 19 (I) (g) to carry on business without complying with the municipal law and other environmental statutes; for example , the Water (Prevention and Control of Pollution) Act, 1974. Recently, the Gujarat High Court , in D.S. Rana v. Ahemdabad Municipal Corpn.4, while making a significant judgement pronounced that “a reasonable restriction may take form of total prohibition of a trade activity in a particular area on the ground that it is likely to be injurios to the health of its residents or cause nuisance”. 3 1 M.C. Mehta v. Union of India, (2006) 3 SCC 399; AIR 2006 SC 1325 2 (2000) 6 SCC 213; AIR 2000 SC 1997 3 AIR 1988 Guj 57. 4 AIR 2000 Guj 45

In another case, the Commisioner of Municipal Corporation, Mumbai granted license under section 376(5), Bombay Provincial Municipal Corporation Act , 1949 subject to restrictions and conditions to operate business of melting gold, etc. Later on, the Commissioner issued a notice to all businessmen engaged in melting gold, etc., that their trade operations were causing nuisance and were hazardous to health and causing environmental pollution. So, either they should close down their furnaces or silver factories or operate from the industrial area only. If they continued to operate their licenses were to be cancelled. The petitioners contended that they were continuously doing so for last many decades and the license was issued long ago. The restriction imposed by the Commissioner, the petitioners stated, was arbitrary and unreasonable as it violated the freedom of trade and business guaranteed under Article 19 (I) (g). The defendant declared that the restriction imposed by the orders of the Commissioner were not unreasonable or excessive as they were in furtherance of the directive principles of state policy [Article 48-A] of the Constitution and the Environment Protection Act , 1986. In fact, there is no absolute prohibition on the right to carry on the trade or business but only a reasonable restriction imposed by the Commissioner in the nature of confining it to an industrial zone, so that it does not become a health hazard or source of nuisance to the general public. Ina case5, the court clarified that if the state makes it compulsory to provide “acoustic enclosure” with diesel generator, it is not a restriction on the right to carry on any occupation, trade and business, but such restriction is with an aim to prevent noise pollution which is violative of the right to life enshrined in Article 21 of the Constitution. In this case, the petitioners were manufacturing diesel generators which were producing noise beyond permissible limits. It was also held that the State Governments are authorized to make such rules under Section 3 and 25, Environment Protection Act, 1986. REASONABLE RESTRICTION meaningThe Constitution does not define the expression “reasonable restrictions”. Nor can an abstract standard or general pattern of reasonableness be laid down for all cases and situations. The test may vary from right to right restricted by the impugned law6. Reasonableness includes prohibition- The word “restriction” also includes cases of total prohibition and the state can establish that a law , though purporting to deprive a person of his fundamental right, under certain circumstances amounts to a reasonable restriction only.7 4 Reasonableness and Directive Principles of State Policy – Imposition of a restriction for the implementation of the Directive Principles of State Policy is a point in favour of the 5 Jackson & Co. v. Union of India AIR 2005 Del 334 6 State of Madras v. V.G.Row, AIR 1952 SC196 ;1952 SCR 597 7 M.B. Cotton Assn. Ltd. V. Union of India, AIR 1954 SC 634

reasonableness of the restriction8. Acts done by industry are in contravention of The Environment (Protection ) Act, 1986 The acts done by industry are in contravention of the Environment ( Protection) Act 1986 as the emission of trade effluents from the plant of DML was way beyond the permissible limits as prescribed by the govt. As per section 7 of the Environment (Protection) Act, 1986 , No person carrying on any industry, operation or process shall discharge or emits any environmental pollutants in excess of such standards as may be prescribed. Thus, section 79 makes it a legal obligation /duty of a person having an industry, operation or a process not to discharge any environmental pollutants, i.e. solid , gaseous, liquid and noise , which exceeds the standards prescribed under various schedules of the Act. Any discharge or emission in excess of the permissible limits amounts to violation of the Environment (Protection ) Act and attracts punishment as provided under Sections 15 to 17 of the Act. Thus any activity which is or is likely to injure any component of the environment has been prohibited by this section. Prohibition of Section 7 shows that certain standards have to be maintained and a person or an industry cannot be permitted to cause damage to the environment. In the Kamal Nath case10, the Supreme Court declared that pollution, by its very nature, is a tort against the community as a whole . Therefore , one who is guilty of causing pollution has to pay damages (compensation) for restoration of the environment and ecology. In S. Jagannath11 , it was declared by the Supreme Court that setting up of modern shrimp aquaculture farms, right on sea coast and construction of ponds and other infrastructure thereon is per se hazardous and is bound to degrade marine ecology, coastal environment and aesthetic uses of the sea coast. Therefore, they cannot be permitted to operate and were ordered to be closed and demolished by the Court. Further, they were made liable to pay compensation to 1) individuals, and 2) to reverse the ecology of the area on the basis of the “polluter pays principle”. 5 Kuldeep Singh J, in M.C. Mehta v. Union of India12, declared that “the standards for sensitive area are stringent than the standards prescribed for industrial and residential areas “.

8 State of Bombay v. F.N. Balsara, AIR 1951 SC 318,328:1951 SCR 682 9 The Environment (Protection) Act, 1986 10 M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213: AIR 2000 SC 1997, 11 (1997) 2 SCC 87 :AIR 1997 SC 811 12 (1996) 8 SCC 462 : AIR 1996 SC 1977

Thus, the Central Pollution Control Board recommended that an area of five kms around the periphery of a centre of tourism be notified as a sensitive area. In the Taj Trapezium case13, substantial level of sulphur dioxide and particulate matter generated by various industries and the Mathura refinery and vehicular traffic was found to be very high. Thus, it caused “acid rain” resulting in the yellowing of the Taj Mahal. On this basis 292 industries were ordered either to switch over to gas, or close down , or shift out of the Taj Trapezium. In the Ganga Pollution case14, it was observed by the Supreme Court that the water of river Ganga was highly toxic near Kanpur city- as the tanneries were discharging their untreated effluents into the river,, nine nallahs of the city were discharging sewage effluent and sludge into the river. This all polluted the water and the contents of iron, manganese were very high from the ISI limits of river water and BOD and COD were found very high then the prescribed limits. Therefore, the court held the Kanpur Mahanagarpalika liable and also passed various directions to prevent and control the pollution of Ganga river. Rule 3 of the Environment (Protection) Rules, 1986 talks about Standards for emission or discharge of environmental pollutants - It provides that environmental standards for emission or discharge of environmental pollutants for the purpose of I) protection and improvement of the quality of the environment, and 2) the prevention and abatement of environmental pollution have been specified in Schedules I,III,IV, VI, and VII. These specified standards can be made more stringent by the Central Pollution Control Board looking at the specific nature, location and gravity of adverse effects of the industry, process or operation No citizen can manufacture , sell and deal with fireworks creating sound beyond permissible limit and generating pollution endangering public health- It must be held that Article 19 (I) (g) of the Constitution of the India does not guarantee the fundamental right to carry on trade or business which creates pollution or which takes away that communities safety, healthy and place. It cannot be said that a citizen have a fundamental right under Article 19 (I) (g) of the Constitution of India to carry on trade or business and/or manufacture poison which may be used for killing of people. This right is negative as nobody has any right to carry on any trade or business in intoxicating liquors by virtue of the right conferred under Article 19 (I) (g). 6 There is no inherent or fundamental right in citizen to manufacture, sell and deal with fireworks which will create sound beyond permissible limit and which will generate pollution which would endanger the health and the public order. A citizen or people cannot be made a captive listener to hear the tremendous sounds caused by bursting out from a noisy fire works. It may give pleasure 13 M.C. Mehta v. Union of India (1997) 2 SCC 353 14 M.C. Mehta v. Union of India,(1988) I SCC 471

to one or two persons who burst it but others have to be a captive listener whose fundamental rights guaranteed under Article 19 (1) (a) and other provisions of the Constitution are taken away, suspended and made meaningless. The order passed by the Commissioner of Police, pursuant to the purported directions issued by the court and the Pollution Control Board of West Bengal have not banned the manufacturing selling or dealing or using all types of fire work, but only few fireworks have been picked up and prohibited which creates noise beyond permissible limit15

6 AI. WHETHER THERE HAS BEEN VIOLATION OF ARTICLE 21 OF THE CONSTITUTION II.1.

Violation of Article 21

15 Burrabazar Fire Works Dealers Association v. The Commissioner of Police, Calcutta, A.I.R 1998 Cal. 121 p.134

Article 21 of the Indian Constitution states: ‘No person shall be deprived of his life or personal liberty except according to procedures established by law.’ Article 21 is the heart of all other fundamental rights. After the Maneka Gandhi case16, the horizon of Art. 21 are expanded by the apex court through judicial pronouncement. According to Bhagwati, J.,Article 21 “embodies a constitutional value of supreme importance in a democratic society 17 . Iyer, J., has characterized Article 21 as “the procedural magna carta protective of life and liberty.18 This right has been held to be the heart of the Constitution19, the most organic and progressive provision in our living constitution, the foundation of our laws.20 The expression life assured in Article 21 of the Constitution does not connote mere animal existence of continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standards of life, and hygienic condition in workplace.21 The “Right to Life” under Article 21 means a life of dignity to be lived in a proper Environment free from the dangers of diseases and infection. 22Maintenance of health, preservation of the sanitation and environment have been held to fall within the purview of Article 21 as it adversely affects the life of the citizens and it amounts to slow poisoning and reducing the life of the citizens because of the hazards created if not checked.23 In this case, there is violation of Article 21 as [II.1.1] there is violation of right to live in a healthy environment and [II.1.2] there is violation of right to live in a pollution free environment [II.1.3] there is violation of right to life of endangered species and protection of natural resources II.2.] Violation of right to live in a healthy environment. The environmental laws which have been passed by Parliament and State legislatures are based on the recognition of clean environment as a human right or fundamental right. As it has been recognized that a clean environment is the basic need for the survival of humanity and it cannot be ensured without ecological balance ,thus, this right belongs to all as survival of mankind

16 AIR 1978 17 Francis Coralis v. Union Territory of Delhi AIR 1981 SC 746 | 18 P.S.R. Sadhanantham v. R.S Naik, AIR 1992SC 1701 19 I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861 20 Rajneesh Kapoor v. Union of India , AIR 2007 MP 204 21 Consumer Education and Resrarch Centre v. Union of India,(1995) 3 SCC 42 22 Ratlam Municipality v. Vardhi Chand , AIR 1980 SC 1622. 23 L.K. Koolwel v. State of Rajasthan , AIR 1988 Raj 2.

7 depends on clean, healthful or pollution free environment. Any attempt to defile,damage the natural environment would amount to violation of the human right to a clean environment.24 The first indication of recognizing the right to live in a healthy environment as a part of Article 21 was evident from the case of R. L. & E. Kendra, Dehradun v. State of U. P. 25 The Stockholm Conference of 1972 also declared that “man has the fundamental right to freedom of equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being….”26 The Constitutional scheme to protect and preserve the environment has been provided under Article 21, 48-A and 51-A (g) which includes fundamental right to have healthy and pollution free environment, constitutional obligation of the State and fundamental duty of all the citizens of Rhodo to protect and improve the natural environment. The Supreme Court has clarified it in many cases. It has also been observed by the Court that this scheme is based on the ‘constitutional policy of sustainable development’ which must be implemented.’27 The Court has observed: The development of the doctrine of sustainable development indeed is a welcome feature but while emphasizing the need of taking into account the ecological impact, a delicate balance between it and the necessity for development must be struck. Whereas it is not possible to ignore inter-generational interest, it is also not possible to ignore the dire need which the society urgently requires. What the Court should follow is a principle of sustainable development and find a balance between the developmental needs which the respondents asserts, and the environmental degradation, that the appellant alleges.28 It is also clear that if development works have to be undertaken , it should be without damaging the forest cover and the environment.” It must be ensured that the development does not impinge upon the purity of the environment beyond restricted and permissible limits.”29

24 See,for details,R.P.Mishra,”Ecological Balance as a Human Right” in Environmental Law In India(1996)20-26 25 A.I.R 1985 S.C. 652 (popularly known Doon Valley Case) 26 Stockholm Declaration, 1972,Principle I 27 Bombay Dyeing & Mfg. Co. Ltd (3) v. Bombay Environmental Action Group, (2006) 3 SCC 434:AIR 2006 SC 1489 28 Intellectuals Forum v. State of A.P., (2006) 3 SCC 549: AIR 2005 SC 1975 29 Amarnath Shrine,re, (2013) 3 SCC247,276

In Samaj Parivartana Samudaya v. State of Karnataka 30, the court declared that “intergenerational equity and sustainable development have come to be firmly embedded in our constitutional jurisprudence as an integral part of the fundamental rights conferred by Article 21 of the Constitution.” 8 In a recently decided case , Hinch Lal Tiwari v. Kamla Devi 31, the Supreme Court declared that material resources of a community like forests, tanks, ponds ,hillocks ,mountains, etc, are nature’s bounty .They maintain a delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality of life which is the essence of the guaranteed right under Article 21 of the Constitution. The Court decided that the pond’s land could not be allotted for a residential purpose. In M.C.Mehta v. Kamal Nath 32, Saghir Ahmed J explained ; In order to afford protection to’ life’, in order to protect ‘environment’ and in order to protect ‘air, water and soil’ from pollution , this court through its various judgments has given effect to the rights available to the citizens and other persons alike, under Article 21 of the Constitution. It was clarified by the Supreme Court that “any disturbance of the basic environment elements ,namely , air, water and soil, which are necessary for ‘life’, would be hazardous to’ life ‘ within the meaning of Article 21 of the Constitution.’’ All this means that the right to life means I) right to live with human dignity , and 2) the quality of life as understood in its richness 33 and fullness by the ambit of the Constitution. It also ‘’encompasses within its fold, some of the finer facets of human civilization which make life worth living’’ It has also been declared by the Supreme Court that “for the jurisprudence developed by this court environment is merely a statutory issue. Environment is one of the facets of the right to life guaranteed under Article 21 of the Constitution.34 The court also made it clear that since environment is a matter directly under the Constitution and “if the court perceives any project or activity as harmful or injurious to the environment, it would feel obliged to step in.”

30 (2013) 8 SCC 154,193;AIR 2013 SC 3217 31 (2001) 6 SCC 213 ;AIR 2001 SC 3215 32 (2000) 6 SCC 213; AIR 2000(AIR) 33 Amarnath Shrine , re (2013) 3 SCC 247; State of H.P. v. Umed Ram Sharma, (1986) 34 Noida Memorial Complex Near Okhla Bird Sanctuary ,re (2011) I SCC 744

Thus, this includes the right to have a “living environment” congenial to human existence. Any activity which pollutes the environment and makes it unhealthy, hazardous to human health or health of flora and fauna, is violative of right to have “living environment”, implicitly guaranteed by Article 21. Similarly, “the slow poisoning by the polluted atmosphere caused by environmental pollution and spoliation could also be regarded as amounting to violation by

9 Article 21 of the Constitution”.35 And the fulfillment guaranteed by Article 21 also embraces the protection and preservation of nature’s gift without which life cannot be fully enjoyed. In M.C. Mehta v. Union Of India36 (Ganga Pollution Case) , Singh J declared in unequivocal terms that the closure of industries (tanneries) may bring unemployment and loss of revenue to the State, “but life, health and ecology have greater importance for the people.”37 Similarly, in the instant case, certain drastic changes were observed in the flora and fauna and the health of the natives of the region of Mohana deltaic region. The over-ground breathing roots of the mangroves were found to be plugged with sludge as a result of which vast patches of mangrove forests withered away and died. Bloated bodies of special endangered varieties of dead reverine dolphins floated up on the shores. Deleterious changes became evident on the health of the natives of the region; and they had developed black sores on various parts of the body and shortness of breath. Later, it was reported that the major reason for this situation was due to the presence of sulphur and other metals in the river Asli way beyond the tolerable limits. Therefore, due to this situation, the right of clean and healthy environment of the people of Mohana are getting infringed. [II.3] There is violation of Right to life of Endangered Species and Protection of Natural Resources It has been clarified that the Right to life is also available to species of animals. The Court declared that “ we are committed to safeguard this endangered species because the species have a right to live on this earth just like human beings.’’ And that Article 21 of the Constitution of Rhodo “protects not only the human rights but also caste and obligation on human beings to

35 T. Damodar Rao v. Municipal Corpn. Of Hyderabad , AIR 1987 AP 171 36 (1987) 4 SCC 463 ; AIR 1988 SC 1037. 37 Ibid, 482 (SCC) ;1048 (AIR).

protect and preserve a species becoming extinct, conservation and protection of environment is an inseparable part of Right to life.38 Thus, we, as human being have a pious duty to prevent the species who are on the verge of extinction and must implement effectively.”species protection regime”. Thus the state as a custodian ,is also duty bound to maintain and safeguard the benefit of public but for the “best interest of flaora and fauna, wildlife.” Environment and ecology are national assets. They are subject to inter-generational equity. 39 The basis, scope and nature of the state responsibility for the protection of natural resources was 10 discussed by Supreme Court in Intellectual Forum v. State of A.P40. The Court was required to deal with the question at the jurisprudential level as it related to the conflict between the competing interest of protecting the environment and social development. The Court held: The responsibility of the state to protect the environment is now a well accepted notions in all countries. It is this notion that in interntional law, gave rise to the principle of State Responsibility for pollution emanating within one’s own territories. This responsibility is clearly enunciated in the United Nation’s Conference on Human Environment, Stockholm, 1972 (Stockholm’s Convention) to which Rhodo was a party. Thus, the Court declared that there is a responsibility bestowed upon the Government to preserve and protect the natural resources.

38 Centre for Environmental Law, World Wide Fund, India v. Union Of India 39 M.C. Mehta v. Union of India (2009) 6 SCC 142 40 (2006) 3 SCC 549

III.

11 WHETHER THE COMPENSATION PAID BY THE COMPANY SHOULD BE ENHANCED The DML has caused environmental degradation by their respective acts, that being, [III.1] Location of the factory at an Improper Place [III.2] Pollution caused by DML, violated fundamental rights [III.3] Compensation awarded by the High Court not satisfactory and therefore, liable to pay damages for the violation of fundamental rights.

[III.1] Location of DML at an Improper PlaceIn the present case, the proximate area in which the factory is located has lush Mangrove topography, vast spectrum of flaura and fauna species, nesting grounds for dolphins and susceptible ecological features, therefore, the designated riverine area for the factory is clearly an improper place. Therefore, the presence of such a polluting factory will further add to environmental degradation and natural disasters. [III.2] Pollution caused by DML, violated fundamental rightsPollution constitutes wrongful contamination in the environment in such concentrations as may be or tends to be injurious to human beings or other living creatures or plants or property or environment41, thereby violating Article 21 of the Constitution.42 41 Section 2 (a) The Air (Prevention and Control of Pollution) Act 1981. 42 Free Legal Aid Cell Shri Sugan Chand Aggarwal v. Govt. of NCT of Delhi and Ors., AIR 2001 Del 45

The first indication of recognizing the right to live in a healthy environment as a part of Article 21 was evident from the case of R. L. & E. Kendra, Dehradun v. State of U. P. 43 In the present case, the over-ground breathing roots of the mangroves were found to be plugged with sludge as a result of which vast patches of mangrove forests withered away and died. Also, bloated bodies of dead riverine dolphins which happened to be of special varieties and endangered unique to the Mohana Delta, floated up on the shores. Deleterious changes became evident on the health of the natives of the region as they started complaining of having developed black sores on various parts of the body and shortness of breath. The High Court in its final judgment held that the report of the PCB revealed that the plant discharged such effluents in the river Asli which contained many chemicals which were way beyond the prescribed limits. It also averred that it was due to this heavy discharge of pollutants in the river that the flora and fauna of the deltaic region were badly affected and the natives had developed black sore diseases. 12 Now, It was clarified by the Supreme Court in M.C.Mehta v. Kamal Nath44 that “any disturbance of the basic environment elements ,namely , air, water and soil, which are necessary for ‘life’, would be hazardous to ‘life’ within the meaning of Article 21 of the Constitution.’’ Hence, the right to Life of the people is getting violated. [III.3] Damages awarded should be enhanced[III.3.1] Polluter’s pay PrincipleThe Polluter Pays Principle is an extension of the principle of absolute liability. The principle of absolute liability is invoked regardless of whether or not the person took reasonable care and it makes him liable to compensate those who suffered on account of his inherently dangerous activity.45 The Polluter Pays principle extends the liability of the polluter to the costs of repairing the damage to the environment. The principle broadens the ambit of the principle of absolute liability. The importance of this principle is that the damage to the environment may be remedied and this is extremely essential to sustainable development. “The polluter is liable to pay the cost to the individual suffers as well as the cost of reversing the damaged ecology”46

43 A.I.R 1985 S.C. 652 (popularly known Doon Valley Case) 44 (2000) 6 SCC 213; AIR 2000(AIR) 45 M.C.Mehta v. Union of India (1987) 1 SCC 395 46 Indian Council for Enviro-Legal Action v. Union of India. (1996) 3 SCC 212 at 215

This principle was invoked in the Enviro-Legal Action47 in 1996. In this case, the court affirmed the principle of absolute liability as stated in the Oleum Gas Leak48 case and extended it. The court laid down, "The polluter pays principle demands that the financial costs of preventing or remedying the damage caused by pollution should lie in the undertakings which cause the pollution or produce the goods that cause the pollution." The judgement of the above case on the polluter pays principle and the justification for invoking it was reaffirmed by another Bench in 1996, in the case of Vellore Citizens Welfare Forum v. Union of India49 In these cases the use of the polluter pays principle has been justified via the constitutional mandate50, statutory provisions51 and international customary law. 13 The Supreme Court in Sterlite Industries (India) Ltd. V. Union of India52, imposed a fine of Rs. 100 crores on the industry for working without proper consent for a long time and for causing air, water and soil pollution. The court reiterated the principle of “absolute liability” and that the fine or compensation by way of damages “must have a deterrant effect”. It was observed that the amount should be deposited in a bank for a period of five years and the interest of the fixed deposit must be used/spent for improving the environment of the area. The court also clarified that this award of damages of Rs. 100 crores “will not stand in the way of any claim for damages…in a civil court or any other forum in accordance with law”. Similarly, the Supreme court has also applied the principle of “polluter pays principle” and “precautionary principle” in Research Foundation for Science v. Union of India53. The basic question involved in this case was permission of Union of India to import toxic waste from the industrialized countries. On detention of various containers having toxic waste, the Court 47 Id. 48 Supra n. 44, hereinafter referred to as the Oleum Gas Leak Case. 49 (1996) 5 see 647. In this case tanneries and other industries in the state of Tamil Nadu were discharging untreated effluents into the agricultural fields, roadsides, waterways and open lands. The untreated effluents were finally discharged into the River Palar, which was the main source of water supply to the residents of that area. 50 Under Article 21 and Article 47. The most relevant provision invoked was Article 48-A, which states that the State will endeavour to protect and improve the environment, and Article 51 -A(g) which ensures the protection of the natural environment. 51 The Water Act. 1974. the Air Act, 1981 and The Environmental Protection Act, 1986. 52 (2013) 4 SCC 575 53 (2012) 7 SCC 769: AIR 2012 SC 2627

ordered for the disposal by incineration and the cost of incineration was to be received from the owners of the containers. The Supreme Court again declared that the “polluter pays principle” and “precautionary principle” have to be read with the doctrine of “sustainable development”. In this case, the Court imposed heavy fine for polluting the water of Noyyal river to meet the expenses of reversing the ecology.54 The powers of the Court under Article 32 are not restricted and it can award damages in a PIL; and in addition to damages as explained by “polluter pays principle”, “the person held guilty of causing pollution can be held liable to pay ‘exemplary damages’ so it may act as a deterrent for others not to cause pollution”.55 Pollution is a civil wrong. By its very nature, it is a tort committed against the community as a whole. A person, therefore, who is guilty of causing pollution has to pay damages (compensation) for restoring of environment and ecology. The powers of the Court under Article 32 are not restricted and it can award damages in a PIL or writ petition as has been held in a series of decisions. The person guilty of causing pollution can also be held liable to pay exemplary damages so that it may act as a deterrent for others not to cause pollution in any manner.56 14 So, in the light of the above cases, and the fact that such immense pollution has been caused by DML, the compensation amount should be enhanced as the aggrieved people are unsatisfied by the amount.

54 Tirupur Dyeing Factory Owners Assn. v. Noyyal River Ayacutdars Protection Assn., (2009) 9 SCC 737 55 M.C. Mehta v. Kamal Nath (2000) 6 SCC 213 56 M.C. Mehta v. Kamal Nath , (2002) 3 SCC 653

15 PRAYER In the light of the issues raised, arguments advanced and authorities cited, may this Hon‟ble Court be pleased to: 1. Hold the DML liable for violation of fundamental rights of the people. 2. Hold the Dashanan Motors Ltd. liable for environmental degradation and loss of biodiversity. 3. Order and direct the company to take corrective measures to restore the degraded Environment. 4. Order for the closure of the construction unit. 5. Award enhanced compensatory damages to be paid by Dashanan Motors for environmental clean-up and for the aggrieved people.

AND/OR Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience. And for this, the Petitioner as in duty bound, shall humbly pray.

COUNSELS FOR THE PETITIONER