OD

TEAM CODE-OD

BHU’S 4TH MAHAMANA MALVIYA MOOT COURT COMPETITION 2016

BEFORE THE HON’BLE SUPREME COURT OF REPUBLIC OF RHODO

IN THE MATTER OF: SLP NO. 8015/2015 REPUBLIC OF RHODO...……….…….…………………PETITIONER V.

DASHANAN MOTORS LIMITED………………………DEFENDANT

SLP NO. 031/2016 MAYA MEHTA …………………………………………...PETITIONER V.

STATE OF NORTHERN PROVINCE …………………..DEFENDANT

Memorial for Respondents

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TABLE OF CONTENTS TABLE OF CONTENTS .............................................................................................................. I LIST OF ABBREVIATIONS .................................................................................................... III INDEX OF AUTHORITIES ....................................................................................................... V STATEMENT OF JURISDICTION ...................................................................................... VIII STATEMENT OF FACTS ......................................................................................................... IX ISSUES RAISED...................................................................................................................... XIII SUMMARY OF ARGUMENTS............................................................................................. XIV ARGUMENTS ADVANCED....................................................................................................... 1 I.

THAT THERE IS NO DIRECT AND PROXIMATE NEXUS BETWEEN THE

POLLUTION CAUSED BY DML AND THE CONSEQUENTIAL EFFECTS IN THE MOHANA REGION ................................................................................................................. 1 A.

DRASTIC CHANGES WERE OBSERVED .................................................................. 1

B.

NO CONCLUSIVE EVIDENCE. .................................................................................... 2

II. THAT DML CANNOT BE HELD TORTIOUSLY LIABLE ....................................... 5 A.

THAT THERE EXISTED A DUTY OF CARE .............................................................. 5

B.

THAT THERE WAS A BREACH OF THE DUTY OF CARE...................................... 6

C.

THAT DAMAGES RESULTING FROM THE BREACH OF DUTY........................... 7

III.

THAT THERE IS VIOLATION OF ARTICLE 14 OF THE CONSTITUTION ... 9

A.

RATIONALE BEHIND THE DIRECTIVE .................................................................... 9

B.

THE REASON BEHIND THE WRONG DECISION .................................................. 10 I|P age [Memorial for Respondent]

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IV.

THAT THERE IS A VIOLATION OF THE FUNDAMENTAL RIGHTS OF THE

DIRECTORS AND THE EMPLOYEES OF THE COMPANY ........................................ 12 A.

INFRINGEMENT OF THE FUNDAMENTAL RIGHT TO TRADE OF THE

DIRECTORS OF DML. ......................................................................................................... 12 B.

INFRINGEMENT OF THE FUNDAMENTAL RIGHT TO LIVELIHOOD OF THE

EMPLOYEES OF DML ........................................................................................................ 14 PRAYER ................................................................................................................................... XVI

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LIST OF ABBREVIATIONS ABBREVIATION

EXPANSION

&

And

§

Section

§§

Sections

¶

Paragraph

¶¶

Paragraphs

AIR

All India Reporter

Anr.

Another

Art.

Article

DML

Dashanan Motors Limited

DPSP

Directive Principle Of State Policy

ED.

Edition

EPA

Environment Protection Act

HC

High Court of Shivpuri

Hon’ble

Honorable

IUCN

International Union for Conservation of Nature

MBCF

Mohana Biodiversity Conservation Forum

MoEF

Ministry of Environment and Forest

NGT

National Green Tribunal

Ors.

Others

PCB

Pollution Control Board

PIL

Public Interest Litigation

Rhodo

Republic of Rhodo

SBCB

State Pollution Control Board

SC

Supreme Cases

SCC

SCC Supreme Court Cases

SLP

Special Leave Petition

UDHR

United Declaration of Human Rights III | P a g e [Memorial for Respondent]

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UOI

Union of India

v.

Versus

Vol.

Volume

W.P.

Writ Petition

WWF

World Wildlife Fund

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INDEX OF AUTHORITIES CASES Abhilash Textiles v. Rajkot Municipal Corporation, AIR 1988 Guj 57 ....................................... 16 Angarki Cooperative Housing Society Ltd. v. State of Maharashtra, AIR 1997 SC 764............. 11 Ashok Kumar Gupta v. State of U.P., AIR 1997 SCW 2257 ....................................................... 16 Base Corporation Ltd.v. The Karnataka Industrial Areas Development Board and Ors., 2012(1) KarLJ372. .................................................................................................................................... 3 Basudeo Tiwary v. Sido Kanhu University, (1998) 8 SCC 194. .................................................. 11 Bennet Coleman & Co. and Ors. v. Union of India, AIR 1973 SC 106 ....................................... 12 Blyth v. Birmingham Waterworks Co., (1856) 11 Ex 781, 784 ..................................................... 5 Board of Trustees of Port of Bombay v. Dilip Kumar R. Nandkarni, AIR 1983 SC 109 ............ 14 D.D.H.E.U. v. Delhi Admn., AIR 1992 SC 789 ........................................................................... 14 D.T.C. v. Mazdoor Union D.T.C. AIR 1991 SC 101 ............................................................. 11, 14 Delhi Cloth & General Mills v. Union of India, AIR 1983 SC 937 ............................................. 12 Donoghue v. Stevenson (1932), AC 562, 618-19 ....................................................................... 5, 7 Faruk v. State of M.P., AIR 1970 SC 93(96) ................................................................................ 13 Francis v. Union Territory, AIR 1981 SC 746.............................................................................. 14 Lipscomb v. State, 75 Miss. 559, 23 So. 210 ................................................................................. 3 M.C. Mehta v. Union of India, (1986) 2 SCC 176 (201). ............................................................... 6 M.C. Mehta v. Union of India, AIR 1988 SC 1037 ...................................................................... 15

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M.J. Sivani v. State of Karnataka, AIR 1995 SC 1770 ............................................................. 9, 11 Maneka Gandhi v. Union of India, AIR 1978 SC 597............................................................ 14, 16 Minerva Talkies v. State of Karnataka, AIR 1988 SC 526........................................................... 14 Narendra v. Union of India, AIR 1960 SC 430 ............................................................................ 14 Nazir Abbas v. Raja Ajamshah, ILR 1947 Nag 955 ....................................................................... 8 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180........................................ 14, 17 Praveen Singh v State of Punjab and Others, AIR 2001 SC 152.................................................... 9 Rashid Ahmad v. Municipal Board Kairana, (1950) SCR 566..................................................... 13 Rustom Cavasjee Cooper v. Union of India, AIR 1970 SC 564................................................... 12 South Australia Asset Management Corpn. v. York Montague Ltd., (1996) 3 All ER 365 (HL) .. 8 Sukhnandan Saran Dinesh Kumar v. Union of India, AIR 1982 SC 902 ..................................... 13 Systopic Laboratories (P.) Ltd. v. Prem Gupta, AIR 1994 SC 205 .............................................. 13 Union of India v. Dinesh Engineering Corporation Ltd., AIR 2001 SC 3887 ............................. 11 Unni Krishnan v. State of Andhra Pradesh, AIR 1993 SC 2178 .................................................. 16 Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647 ...................................... 16 Vrajlal Manilal & Co. v. State of Madhya Pradesh, AIR 1970 SC 129 ....................................... 13 Yasin v. Town Area Committee, (1952) SCR 572 ....................................................................... 13 BOOKS



A. DESAI, ENVIRONMENTAL JURISPRUDENCE (2ND ED. 2002).



DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8TH ED. 2009). VI | P a g e [Memorial for Respondent]

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

DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA, (14TH ED. 2009).



M.P. JAIN, INDIAN CONSTITUTIONAL LAW (6TH ED. 2010).



P. LEELAKRISHNAN., ENVIRONMENTAL CASE LAW BOOK (2ND ED. 2006).



P. S. JASWAL, ENVIRONMENTAL LAW (2ND ED. 2006).



S. K. SARKAR, PUBLIC INTEREST LITIGATION (2ND ED.2006).



S. SHANTHAKUMAR, INTRODUCTION TO ENVIRONMENTAL LAW (2ND ED. 2008).



SHANTHAKUMAR, S., INTRODUCTION TO ENVIRONMENTAL LAW (2ND ED. 2008).



SUMEET MALIK, ENVIRONMENTAL LAW (2ND ED. 2012).



V. N.SHUKLA , CONSTITUTION OF INDIA (11TH ED. 2008). STATUTES AND ACTS



THE CONSTITUTION OF INDIA, 1950.



WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 LEXICONS



BRIAM A. GARNER,BLACK’S LAW DICTIONARY (10TH ED. 2014).



P RAMANATHAAIYAR, THE MAJOR LAW LEXICON 3531 (4THED 2010).



SALLY WEHMEIER, OXFORD ADVANCED LEARNER’S DICTIONARY (7TH ED. 2005).

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STATEMENT OF JURISDICTION The respondents humbly submit before the Hon'ble Supreme Court under the jurisdiction invoked by the petitioner. The respondent reserves the right to challenge the same.

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STATEMENT OF FACTS -THE BACKGROUNDDashanan Motors Limited (hereinafter referred as DML) was initially established as a public sector enterprise after the independence of Republic of Rhodo (hereinafter referred to as Rhodo) in the mid-twentieth century. Its flagship product was Pushpak, and buses named Garuda which became the preferred means of mass transit. The sole and principal manufacturing unit of DML is situated in the suburbs of the capital city of Northern Province, Shivpuri on the banks of the River Asli and it remained profitably operational for the first few decades of its existence. 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 on environmental safety norms in which Rhodo was an active participant. In 1991, Rhodo, faced with an impending foreign exchange and balances of payment crisis, relaxed its import regime, which resulted in the entry of foreign automobile companies into Rhodo and people started opting for their products over DML’s products. Thus, sales dipped for DML and the government intervened by setting up ancillary units (tyre, lube & lubricant, paint & coolant) to manufacture the spare parts onsite, and injected funds to create updated and efficient components for the automobiles. The condition of DML, however, did not improve and its disinvestment process started in 2005, at the end of which DKS Enterprises held 30%, VS Motors held 21% and 49% was held by the government. After the private acquisition of DML, there has been a consistent rise in the value of the stock on the National Stock Exchange. -THE CONTROVERSIESA. The factory of DML, ever since its inception, discharged all its trade effluents in the river Asli. Fifty miles down the river from where the factory is situated, the river Asli created a delta the Mohana which is an internationally recognised important biosphere reserve. In 2015, certain drastic changes were observed in the flora and fauna, and the health of the natives of this region – IX | P a g e [Memorial for Respondent]

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i. The over-ground breathing roots of the deltaic mangroves were found plugged with sludge resulting in withering and death of vast patches of mangrove forests. ii.

Bloated bodies of dead riverine dolphins unique to the Mohana delta, which were

a special and endangered variety, floated up on the shores. iii.

The natives started complaining of having developed black sores on various parts

of the body and shortness of breath. The Mohana Biodiversity Conservation Forum (MBCF) conducted an exhaustive research to elicit the reason for these detrimental changes, which revealed that the water of the river contained various hazardous chemicals, some of the major pollutants being sulphur and heavy metals which could have been the cause of death of the dolphins and the black-sore disease. It averred that the major reason for presence of the hazardous chemicals beyond the tolerable limits in the river was due to the emission of effluents by DML and opined that it was responsible for such environmental deterioration. Their findings were independently confirmed by ecological studies conducted by researchers of international eminence. Maya Mehta, a prominent green crusader, took up the cause of the MBCF and demanded a thorough inspection of the trade effluents and plant facilities of the DML or a complete closure of the plant until such findings came out, but no action was taken. B. The government of Republic of Rhodo had switched to the Euro IV norms in 2010, and had declared to opt for Euro V norms by 2015 and Euro VI norms by 2020. At the end of 2014, the government decided to skip directly to Euro VI norms by 2020. By mid-2015, the air pollution levels in the country had risen dauntingly and the government, after proper consideration and deliberation, and under the influence of various environmental conservation pressure groups, opted to switch from Euro IV to Euro VI norms from 1 January 2016. It issued a directive to that effect in October 2015 strictly ordering all automobile manufacturing companies to desist manufacture and sale of 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 non-compliant. The Board of Directors of X|P a ge [Memorial for Respondent]

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DML held a meeting on 1 November 2015 at which it was found that necessary modifications of the products would require at least eight months, and till then, they would have to lay off workers and forced to stop both manufacturing and sale of their products, incurring huge losses. -THE LEGAL PROCEEDINGSA. Ms. Mehta filed a Public Interest Litigation (PIL) in the HC on 16 November 2015. She cited expert analyses on the effluent and emission figures and photographic and documentary evidence of the morphological and physiological changes in the deltaic ecosystem. She alleged the reason for the drastic shift in the ecological balance of the deltaic region to be the discharge of noxious effluents by the DML plant. She sought to recover damages from the DML to the natives suffering from black sores and a writ of mandamus to be issued to the State Pollution Control Board (SPCB) to close the DML plant. The HC directed the SPCB to conduct an examination of the trade effluents discharged by the plant and report the same to the court within 3 weeks. The HC, in its final judgment dated 21 December 2015, held that the report of the PCB revealed that effluents discharged by the plant contained many chemicals beyond the prescribed limits. After this examination, the Court ordered the company to pay damages worth Rs.10 crores to the aggrieved natives. It also opined that if the plant was closed, it would render about 45000 employees unemployed, and that it would leave around 2 lac family members of these employees in misery, hunger and squalor. Hence, it did not issue a directive to shut the plant. Ms. Mehta and the aggrieved natives were dissatisfied with the damages awarded and in the subsequent week, she filed a SLP before the SC seeking enhancement of the awarded damages and closure of the plant, which was admitted under SLP 031/2016. B. The directors of DML considered the government directive to be violative of their fundamental rights and moved the High Court of Shivpuri (hereinafter referred to as HC) on 1 December 2015 seeking the issuance of writ of mandamus to get the impugned directive annulled. The writ petition was admitted as WP(C) 9813R2015.

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The petitioner alleged that the directive was unconstitutional as it violated their freedom to trade and profession and the right to livelihood of their employees and the HC ruled in their favour. The aggrieved Central Government filed an SLP the Supreme Court of Rhodo (hereinafter referred to as SC) on 22 December 2015 which was admitted as SLP 8015/2015. C. After a couple of hearings, SC decided to club SLP 031/2016 and SLP 8015/2015 as they had the same subject matter and the same parent company, and because Ms. Mehta was the council for the central government in the latter. The SC has set both of these cases to be decided before a division bench on 1st April 2016 for final hearing.

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ISSUES RAISED I.

WHETHER THERE IS A DIRECT AND PROXIMATE NEXUS BETWEEN THE POLLUTION CAUSED BY THE DML AND THE EFFECTS RESULTED IN THE MOHANA REGION?

II.

WHETHER THERE IS A TORT OF NEGLIGENCE?

III.

WHETHER THERE IS A VIOLATION OF ARTICLE 14 OF THE CONSTITUTION?

IV.

WHETHER THERE IS A VIOLATION OF THE FUNDAMENTAL RIGHTS OF THE DIRECTORS AND THE EMPLOYEES OF THE COMPANY?

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SUMMARY OF ARGUMENTS I. THAT THERE IS NO DIRECT AND PROXIMATE NEXUS BETWEEN THE EFFLUENT DISCHARGE BY THE DML PLANT AND THE EFFECTS RESULTED IN THE MOHANA REGION Firstly, the deleterious changes observed in the Mohana region were drastic and could not have been suddenly caused by the consistent discharge of effluents by the DML plant for decades. Secondly, neither the MBCF nor Maya Mehta nor the PCB report have been able to prove conclusively that there is a nexus between the effluents discharged by the DML plant and the deleterious effects in the Mohana region. It is, therefore, humbly submitted that DML was wrongly held liable in the PIL filed by Ms. Mehta.

II. THAT DML CANNOT BE HELD TORTIOUSLY LIABLE It is humbly submitted that the mass tort action by Ms. Mehta for the natives who developed the black-sore disease allegedly due to the effluent discharge by the DML does not hold because the essentials of the tort of negligence have not been satisfied. So, there is no basis for demanding more compensation from DML.

III. THAT THERE IS VIOLATION OF ARTICLE 14 OF THE CONSTITUTION It is humbly submitted that the directive issued by the government is arbitrary based on the procedural aspect of the policy statement relating to the inadequacy of the time period provided by the government for making the necessary changes in the automobiles manufactured by the company.

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IV. THAT THERE IS A VIOLATION OF THE FUNDAMENTAL RIGHTS OF THE DIRECTORS AND THE EMPLOYEES OF THE COMPANY It is humbly submitted that the Fundamental Rights of the Directors and the employees of DML, ie. the right to trade and profession of the Directors and the right to livelihood of the employees are being violated.

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ARGUMENTS ADVANCED I.

THAT THERE IS NO DIRECT AND PROXIMATE NEXUS BETWEEN THE POLLUTION CAUSED BY DML AND THE CONSEQUENTIAL EFFECTS IN THE MOHANA REGION

1. It is humbly submitted before the Hon’ble Supreme Court that there is no direct and proximate nexus between the pollution caused by DML and the changes that were observed in the flora and fauna as well as the natives of the region around the river Asli and the Mohana region. The timeline of the events is such that the changes would not have been caused but for some intervening factor. A. DRASTIC CHANGES WERE OBSERVED 2. It has been stated in the facts that DML had been set up by the Government after the independence of Rhodo in the mid-twentieth century and had been profitably operational for “the first few decades of its existence”1. However, it can be reasonably inferred from the statement of facts that the company was established before the year 1991, the year in which the government relaxed its import regime and the sales of DML fell due to international competition. Another concrete year mentioned is 2005, in which the disinvestment process of DML started, at the end of which the Government of Republic of Rhodo (hereinafter referred to as the Government) owned 49% stake. Thus it can be concluded that DML had been in existence for a few decades even before 1991. The facts then state that the factory of DML had been discharging its effluents in the river Asli since its inception, that is, a few decades before 1991 but it was in 2015 that certain “drastic changes”2 were observed, comprising withering of mangroves, death of endangered riverine dolphins and the natives of the Mohana region suffering from black sores on their body and shortness of breath.3 3. It is not reasonable to draw a nexus between the alleged pollution that had been happening for so many decades and the drastic effects seen in the region because every change, happening due to a consistent cause, has a gestation period and shows symptoms before actually developing into 1

Paragraph 4, Moot Proposition. Paraghraph 11, Moot Proposition. 3 Paragraph 11, Moot Proposition. 2

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anything so deleterious. So, there should have been some gradual changes noticed over the years due to the alleged pollution, but since the changes mentioned are drastic, it is humbly submitted that these changes were due to some intervening change(s) that had taken place in 2015 and not because of the effluent release of the factory that had been taking place for so many decades. B. NO CONCLUSIVE EVIDENCE. 4. It has been stated that the only findings that the research conducted by the MBCF has revealed concretely is that the water of the river Asli is heavily polluted, that some of the chemicals it contained are hazardous to the flora and fauna of the region, and that some of its major pollutants are sulphur and heavy metals. The mention of the non-conformity of the reports to establish a link between the acts is as followsi. From these findings, it was “averred” that the reason for the existence of sulphur and heavy metals beyond the tolerable limits was the trade effluents discharged by the plant. ii. It was “opined” that DML is responsible for the environmental deterioration. iii. It is also stated that the MBCF thought that the high concentration of sulphur and heavy metals “could have been” the cause of the death of the dolphins. iv. In the PIL filed by Ms. Mehta in the High Court of Judicature of Northern Province at Shivpuri, she too “alleged”, without any concrete evidence to confirm, that the drastic shift in the ecological balance was due to the trade effluents being discharged by the DML plant. 5. It is humbly submitted that although extensive research has been conducted on the conservation of this endangered species, sulphur or heavy metals have not been mentioned as the cause of death of riverine dolphins by any eminent national or international organisation. The only two chemicals which have been widely associated with the death of this species are organochlorine and butylin (WWF and IUCN)4.

4

https://www.worldwildlife.org/threats/pollution; http://wwf.panda.org/what_we_do/endangered_species/cetaceans/about/river_dolphins/ganges_river_dolphin/ 2|P age [Memorial for Respondent]

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6. The PCB report submitted to the Hon’ble High Court in the mentioned case stated that the plant discharged such effluents in the river which contain many chemicals way beyond the prescribed limits, but did not confirm Ms. Mehta’s allegations, thus leaving the Hon’ble High Court to aver that the heavy discharge of pollutants in the river that caused the deleterious effects, thereby holding DML liable for the same. 7. It is submitted that in the legal context, the meaning of the words used by the PCB, MBCF, Maya Mehta or the findings confirmed by researchers of international eminence are as followsi. the meaning of the term aver is “to allege”5, of allege is “to assert as true, esp. that someone has done something wrong, though no occasion for definitive proof has yet occurred”6, and ii. opine is “In the law of evidence, opinion is an inference or conclusion drawn by a witness from facts some of which are known to him and others assumed, or drawn from facts which, though lending probability to the inference, do not evolve it by a process of absolutely necessary reasoning”7. 8. It is, therefore, humbly submitted before the Hon’ble Supreme Court that DML cannot be held liable only on the ground that the PCB report “alleged” that the effluent discharge from its plant was the reason for the drastic changes without any conclusive evidence to prove the same. Moreover, a report prepared by the PCB cannot be relied on in all the cases, as a touchstone8. 9. It is also humbly submitted that Section 17 of the Water (Prevention and Control of Pollution) Act, 19749 states – (1) Subject to the provisions of this Act, the functions of a State Board shall be(f) to inspect sewage or trade effluents, works and plants for the treatment of sewage and trade effluents and to review plans, specifications or other data relating to plants set up for the treatment of water, works for the purification thereof and the system for the

5

Black’s Law Dictionary 5 (10th ed. 2010). Black’s Law Dictionary 5 (10th ed. 2010). 7 Black's Law Dictionary 4th Ed. Rev. 6-1971. See also Lipscomb v. State, 75 Miss. 559, 23 So. 210. 8 Base Corporation Ltd.v. The Karnataka Industrial Areas Development Board and Ors., 2012(1) KarLJ372. 9 Section 17, Water (Prevention and Control of Pollution) Act, 1974. 6

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disposal of sewage or trade effluents or in connection with the grant of any consent as required by this Act; 10. In this case, the DML plant either has never been inspected by the SPCB or it has been inspected and no discrepancy in the effluent discharge has been discovered by the SPCB. In either case, the SPCB has not properly performed the function that it has under the ambit of the Act and DML was, thereby, unaware of the fact that they were flouting any rule. Thus, it is unreasonable to suddenly hold DML liable for an act which had been in existence and had not been condemned for many decades.

4|P age [Memorial for Respondent]

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II.

THAT DML CANNOT BE HELD TORTIOUSLY LIABLE

11. It is respectfully submitted before the court that the company DML is not liable under the mass tort action filed by Ms. Maya Mehta since it does not fulfil all the essentials of the specified tort. 12. Negligence is the breach of duty caused by the omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.10 According to Winfield, “Negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff”.11 This leads to the conclusion that there are three basic essentials of negligence. They are listed as followsi.

That the defendant owed a duty of care towards the plaintiff

ii.

That such duty of care was breached through his conduct or action

iii. That

the plaintiff suffered damage or injury as a consequence A. THAT THERE EXISTED A DUTY OF CARE

13. The first and foremost constituent which needs to be satisfied for the occurrence of the tort of negligence is the existence of duty of care towards the victim. It is humbly submitted to the Hon’ble Court that, in the present case, the DML plant does owe a duty of care. It not only owes a duty of care towards the environment but also towards the health of the natives of the Mohana region. 14. Within the existence of duty the test of reasonable foreseeability and proximity also comes into the folds of the instant case. As Lord Atkin said, “You may take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”12 15. Applying this principle in the present case, it is evident that some “drastic changes”13 took place in the year of 2015 which cannot be contended to be attributed to the continuous discharge of effluents into the river Asli for so many decades by the DML plant. Thus, it cannot be concluded 10

Blyth v. Birmingham Waterworks Co., (1856) 11 Ex 781, 784. WINFIELD AND JOLOWICZ, Tort, 12th edition, p. 69. 12 Donoghue v. Stevenson (1932), AC 562, 618-19. 13 Moot Proposition, ¶11. 11

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that this continuous discharge of the effluents in the river led to the sudden deleterious effects observed there. It is therefore contended that there must have been some sudden changes elsewhere in the environment which resulted in the “drastic” changes observed in the Mohana region and these could not have been reasonably foreseen on the part of the DML. Since this chain of events was not reasonably foreseeable, an act or omission on the part of the DML cannot be contended. 16. Further, as has already been submitted, the reports furnished by the SPCB, the observing scientists and activists of MBCF and the findings “independently confirmed” by the researchers of international eminence could not conclusively prove that the major pollutants of the river which “could have been” the cause behind the death of dolphins, the black-sore disease, drastic changes in the flora and fauna were due to the DML plant. It is, therefore, contended that there were intervening factors between both the acts and hence, it cannot be affirmed that the actions of DML were responsible for the changes and that there exists a proximate and foreseeable link between them. B. THAT THERE WAS A BREACH OF THE DUTY OF CARE 17. As it has been contended successfully that DML owed a duty of care to the natives, it is now submitted that the next essential to be fulfilled for the tort of negligence to have taken place is that there was a breach of this duty on the part of DML. 18. It is further submitted that it was observed by the Supreme Court in case of hazardous industries14 that – “We cannot possibly adopt a policy of not having any chemical or other hazardous industries merely because they pose hazard or risk to the community. If such a policy were adopted, it would mean the end of all progress and development. Such industries, even if hazardous have to be set up since they are essential for economic development and advancement of well-being of the people.”

14

M.C. Mehta v. Union of India, (1986) 2 SCC 176 (201). 6|P age [Memorial for Respondent]

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19. It is humbly submitted before the Court, that the even in the above case, the role of hazardous industries is recognised and they are allowed to function so that the economic development as well as advancement of the people as well as of the nation is not atrophied. 20. In the present case, though it is acknowledged that DML owes a duty of care, it is contended that there is no breach that duty of care. This is further supported by the fact that the effluent discharge by the plant of DML has not been conclusively tied to the far-reaching changes by any of the reports mentioned in the facts. 21. It is submitted that for the DML to be held liable there needs to be a direct and proximate link between the discharge by the plant and the effects which are taking place. Since there is no certain report which can establish the connection between the two incidents and establish a cause and effect relationship, it cannot be contended that DML was responsible for the effects on the environment and the people. Hence it is contended that DML is not responsible for the harm caused in the Mohana region. 22. According to the facts, Ms Mehta accepts that “there was drastic shift in the ecological balance of the deltaic region”15, thereby accepting that there was a sudden change in the status quo. The facts also confirm that it has been more than a few decades since the inception of the company and it has, since its inception, discharged all the waste in the river Asli. This confirms that there was no direct and proximate relation between the two events. C. THAT DAMAGES RESULTING FROM THE BREACH OF DUTY 23. It is submitted that the last essential to be fulfilled in case of the tort of negligence is the damage resulted from the breach of duty of the negligent party. It is contended that since the second essential fails to be fulfilled, there cannot be any damages resulting from such non-existent breach of duty. 24. In the landmark judgement of Donoghue v. Stevenson16, Lord Macmillillan said that, The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In 15 16

Moot Proposition, ¶19. Donoghue v. Stevenson (1932), AC 562, 618-19. 7|P age [Memorial for Respondent]

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such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence.

25. It is further contended that although damages have been observed in the environment and the natives of the Mohana region according to the facts, there is no conclusive proof to establish that any act of the DML could have caused the same. It is, therefore, submitted that the demand for extra compensation is should be dismissed by the Hon’ble Supreme Court. 26. As has already been established, in a suit for damages on the ground that the tort of negligence has been committed, it must be established first a duty to take care existed, secondly a breach of duty had taken place and thirdly, that such breach was the proximate cause of the loss or injury that occurred to the plaintiff17. 27. It had to be proved that the duty which the defendant has failed to comply was owed to him and was “in respect of the kind of loss which he has suffered.”18 It is contended that in the present case, the establishment of the connection between the acts of the plant of DML and the harm caused has failed. Hence, it is humbly submitted before the court that the essentials which constitute the tort of negligence are not satisfied, so the tort has not been committed.

17 18

Nazir Abbas v. Raja Ajamshah, ILR 1947 Nag 955. South Australia Asset Management Corpn. v. York Montague Ltd., (1996) 3 All ER 365 (HL), p. 370. 8|P age [Memorial for Respondent]

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III.

THAT THERE IS VIOLATION OF ARTICLE 14 OF THE CONSTITUTION

28. It is humbly submitted before the Hon’ble Supreme Court that there is violation of the fundamental right to equality of DML under Article 14 of the Constitution under the ambit of arbitrariness of the directive issued by the government. 29. The ambit of this Article has been widened in scope in the recent times by the Hon’ble Supreme Court itself where the distinctions between the arbitrariness as under Article 14 and Article 19 have been made to overlap. Now, in order to evoke Article 14, it is no longer required that the narrow definition of arbitrary classification. Article 14 can hence be evoked for protection against any arbitrary or irrational act on the part of the State. It is also humbly submitted that in Praveen Singh v. State of Punjab and Ors.19, the Court held that – “Arbitrariness being opposed to reasonableness is an antithesis to law. There cannot, however, be any exact definition of arbitrariness neither can there be any straight jacket formula evolved therefore, since the same is dependent on all varying facts and circumstances of each case.”

30. The Hon’ble Supreme Court in M.J. Sivani v. State of Karnataka20 held that – “It is settled law that every action of the State or an instrumentality of the State must be informed by reason. Actions uninformed by reason may amount to being arbitrary and liable to be questioned under Article 226 or Article 32 of the Constitution. The action must be just, fair and reasonable.”

A. RATIONALE BEHIND THE DIRECTIVE 31. In the SLP 8015/2015, it is contended that the government directive issued in October 2015 is an arbitrary act of the government since there was no rationale behind the same. The reasons to support the same are:

19 20

Praveen Singh v State of Punjab and Others, AIR 2001 SC 152. M.J. Sivani v. State of Karnataka, AIR 1995 SC 1770 9|P age [Memorial for Respondent]

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i. The government had originally decided in 2010, when they adopted the Euro IV norms, that they would switch from the Euro IV to the Euro V norms in 2015 and subsequently from the Euro V to the Euro VI norms in 2020. ii. At the end of 2014, that it would decided to skip the Euro V norms altogether and switch to the Euro VI norms in 2020. iii. In mid 2015, with rising air pollution in the country and under the influence of pressure groups for environment conservation, the government suddenly decided to switch to the Euro VI norms by 1 January 2016, issuing a directive to that effect in October 2015. iv. Thus, the government arbitrarily preponed the switch by five years. B. THE REASON BEHIND THE WRONG DECISION 32. The time period of three months, as provided by the Government to make this transition, is not just inadequate, but also arbitrary in so far as it does not taken into account the substantial changes required to be made in the engines complying with Euro VI norms21. The facts also state that only three of the vehicles of DML were non-compliant with the new norms, thereby implying that the rest of its vehicles complied with the norms, and also that the company knew how much time it could take to make the necessary changes in the engines of those three vehicles, i.e. at least eight months, since they had already started the process of changing the engines of the rest of the cars. 33. This shows that the government did not take into consideration all the facts and circumstances surrounding the switch to the Euro VI norms and had not provided sufficient time for the company to make the necessary changes, moreover imposing restrictions on their trade by prohibiting the manufacture and sale of the non-compliant vehicles. It is, therefore, submitted that the directive issued by the government was procedurally arbitrary. 34. Once it is acknowledged that non-arbitrariness is an ingredient of Article 14, pervading the entire realm of State action, it has come to be established, as a further corollary, that the audi alteram partem facet of natural justice is also a requirement of Article 14, for natural justice is an 21

https://www.theaa.com/motoring_advice/fuels-and-environment/euro-emissions-standards.html; http://www.dieselnet.com/standards/eu/hd.php 10 | P a g e [Memorial for Respondent]

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antithesis of arbitrariness22. This requirement of natural justice is applicable to administrative orders affecting prejudicially the party in question and any action taken in contravention of natural justice is violative of fundamental rights guaranteed by the Articles 14, 19 and 21 of the Constitution23. It is submitted that DML is being denied natural justice because it is subject to the arbitrary directive issued by the government. 35. Another aspect of this Article in dealing with the citizens in a non-arbitrary manner is the doctrine of “legitimate expectation” which, although not a right in itself, can be relevant in determining the arbitrariness of the action taken by the government authority. This principle is based on the rule of fairness and states that where a person’s legitimate expectation was not fulfilled by taking a particular decision, then the decision-maker should justify the denial of such justification. In the present case, the directors of DML legitimately expected that they would be required to switch to the Euro VI norms by 2020 according to the declaration of the government in 2014 and even began working on that expectation since only three of their vehicles were noncompliant with the norms. The state transgressed such legitimate expectation by suddenly deciding to switch to the Euro VI norms by 1 January 2016, thereby cutting short the time provided drastically by five years. This again proves that the directive issued is unconstitutional and arbitrary. In fact, an arbitrary action need not be mala fide24. In the case of M.J. Sivani25 it was held by the Hon’ble Supreme Court that“It is settled law that every action of the State or an instrumentality of the State must be informed by reason. Actions uninformed by reason may amount to being arbitrary and liable to be questioned under Article 226 or Article 32 of the Constitution. The action must be just, fair and reasonable.”

22

D.T.C. v. Mazdoor Union D.T.C. AIR 1991 SC 101; Basudeo Tiwary v. Sido Kanhu University, (1998) 8 SCC 194. 23 Union of India v. Dinesh Engineering Corporation Ltd., AIR 2001 SC 3887. 24 Angarki Cooperative Housing Society Ltd. v. State of Maharashtra, AIR 1997 SC 764. 25 M.J. Sivani v. State of Karnataka, AIR 1995 SC 1770. 11 | P a g e [Memorial for Respondent]

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IV.

THAT THERE IS A VIOLATION OF THE FUNDAMENTAL RIGHTS OF THE DIRECTORS AND THE EMPLOYEES OF THE COMPANY

36. It is humbly submitted to the Hon’ble Supreme Court that there is violation of the fundamental right to trade of the Directors of DML and the right to livelihood of the employees of the enterprise provided under Article 19(1)(g) and Article 21 of the Constitution respectively. A. INFRINGEMENT OF THE FUNDAMENTAL RIGHT TO TRADE OF THE DIRECTORS OF DML. 37. It is submitted to the Hon’ble Supreme Court that Article 19(1)(g) of the Constitution under its ambit covers, the object of using four analogous and overlapping words is to make the guaranteed right as comprehensive as possible to include all the avenues and modes through which a man may earn his livelihood. a. In this context, “occupation” would be an activity of a person undertaken as a means of livelihood or a mission in life. This directly proves that the directorship of DML is an occupation for the directors of the company. b. Moreover, “trade or business” is considered synonymous to each other in the context of this Article, meaning any substantial and systematic or organised course of purpose. Since the Board of Directors has been organised for the purpose of governance of the company, their right also falls under the ambit of trade or business. It has been firmly established by the various orders passed by the Hon’ble Supreme Court that the Directors of a company can claim the rights enshrined in Article 19(1)(g) of the Constitution26. 38. With respect to the SLP 8015/2015, the government directive dated October 2015, ordering all automobile manufacturing companies to desist the manufacture and sale of such automobiles which do not comply with the newly introduced Euro VI norms, is causing DML to stop the production of three of their products, thus restricting the trade carried on by the directors of the company.

26

Rustom Cavasjee Cooper v. Union of India, AIR 1970 SC 564; Bennet Coleman & Co. and Ors. v. Union of India, AIR 1973 SC 106; Delhi Cloth & General Mills v. Union of India, AIR 1983 SC 937. 12 | P a g e [Memorial for Respondent]

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39. The government had deliberated and decided that it will adopt the Euro VI norms in 2020 and this sudden change in decision to prepone this switch five years is unreasonable, as has been contended above. Moreover, since the facts of the case mention that only three vehicles produced by DML do not comply with the new norms, namely, Pushpak Hatchtback and Pushpak Sedan “among cars”27, and Garuda Premium bus, it is implicit that the rest of the vehicles manufactured by them comply with the Euro VI norms already, although it was only in 2014 that the government had declared that they would skip the switch to Euro V norms that was to take place in 2015 and would skip to the Euro VI norms in 2020. In the time period between 2014 and mid 2015, DML had already changed the configuration of the engines of the rest of the vehicles it manufactures to the Euro IV norms, thereby showing its intention of following the directive, given the adequate time. 40. Since the inadequacy of time has already been firmly contended, it is now humbly submitted that the restriction imposed by the government directive is unreasonable not due to the substance but due to the procedural aspect of the directive. As contended, DML is willing to switch to the Euro VI norms, but the procedure undertaken by the government is unreasonable since it is prohibiting the company from the manufacture and sale of three of its products, thereby restricting the right to trade of its directors. Since natural justice is a condition of procedural reasonableness, it is submitted that injustice is caused to the directors of the company in the form of restriction of trade and loss of revenue. Moreover, the burden to prove that the restriction is reasonable and is covered under 19(6) of the Constitution lies on the Government28. 41. With respect to the SLP 031/2016, Ms. Mehta is demanding the closure of the only plant of DML, thereby asking for complete prohibition of the occupation of the directors29. Other than in exceptional categories of inherently dangerous business30 or trade, like making and selling of intoxicating liquor, explosives, etc. or illegal trade, like trafficking or women and children, etc. a total prohibition on the right to trade would be considered as an “unreasonable restriction”. It has also been held that “greater the restriction, the more the need for strict scrutiny by the courts”31. 27

Moot Proposition, ¶15. Sukhnandan Saran Dinesh Kumar v. Union of India, AIR 1982 SC 902; Vrajlal Manilal & Co. v. State of Madhya Pradesh, AIR 1970 SC 129. 29 Yasin v. Town Area Committee, (1952) SCR 572; Rashid Ahmad v. Municipal Board Kairana, (1950) SCR 566. 30 Faruk v. State of M.P., AIR 1970 SC 93(96); Systopic Laboratories (P.) Ltd. v. Prem Gupta, AIR 1994 SC 205. 31 Narendra v. Union of India, AIR 1960 SC 430; Minerva Talkies v. State of Karnataka, AIR 1988 SC 526. 28

13 | P a g e [Memorial for Respondent]

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In this case, where the directors are not carrying on any such inherently dangerous or illegal trade, it is submitted that Ms. Mehta’s demand that the SPCB impose prohibition on the sole factory of the company is unreasonable. B. INFRINGEMENT OF THE FUNDAMENTAL RIGHT TO LIVELIHOOD OF THE EMPLOYEES OF DML 42. It is humbly submitted before the Hon’ble Supreme Court that Article 2132 of the Constitution talks about the right to life and personal liberty which cannot be restricted except reasonably by procedure established by law. Here, the definition of life has been extended to something more than the survival or animal existence and now includes the right to live with human dignity as well33. The right to dignity in turn means the right to a quality life, which can be ensured through minimum subsistence, i.e. livelihood of the person34. If the person is deprived of his livelihood, he is deprived of his minimum subsistence, thereby infringing upon his right to dignity. 43. Thus, Article 21 includes the right to livelihood by means which are not illegal, immoral or opposed to public policy35. In the instant case, the employees are employed in an automobile manufacturing company and since they only engage in the manufacture of automobiles, their employment is in no way illegal, immoral or opposed to public policy. The ambit of the right to livelihood also implies that public employment cannot be taken away by any procedure which is not reasonable, fair and just36 and that after the appointment of an employee, whether under the state, its agency, instrumentality, juristic person or private entrepreneur, the employee is to be dealt with as per public element and public interest. 44. According to the facts of the case, the government directive issued in October 2015 ordered all the automobile companies to stop the manufacture and sale of vehicles which are non-compliant with the new Euro VI norms. DML had only three vehicles non-compliant with the new norms and as contended above, the Board of Directors of DML, after exhaustive deliberation, came to the conclusion that the time span provided by the government to make the necessary changes in 32

Article 21, Constitution, 1950. Francis v. Union Territory, AIR 1981 SC 746; Maneka Gandhi v. Union of India, AIR 1978 SC 597. 34 Board of Trustees of Port of Bombay v. Dilip Kumar R. Nandkarni, AIR 1983 SC 109. 35 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180; D.T.C. v. Mazdoor, AIR 1991 SC 101; D.D.H.E.U. v. Delhi Admn., AIR 1992 SC 789. 36 Id. 33

14 | P a g e [Memorial for Respondent]

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the engines of the vehicles is inadequate and that to comply with the directive issued, they would have to stop the manufacture and sale of the aforementioned products, which will force them to lay off workers and incur huge losses. It is, therefore, humbly submitted before the Hon’ble Supreme Court that in the SLP 8015/2015, the right to livelihood of the employees of DML under Article 21 of the Constitution is being infringed, as they will be deprived of their employment as a tangible effect of this directive without any reasonable, fair or just procedure. 45. At the same time, when Ms Mehta is demanding the closure of the sole plant of DML, the tangible harm of this demand is the deprivation of all the employees of the company of their right to livelihood by rendering them unemployed. It is, therefore, also submitted that in the SLP 031R2016, the right to livelihood of the employees under Article 21 is being violated since employment of the employees is being taken away unreasonably without considering them in context of their public interest. 46. It is pertinent to note the judgement of the Hon’ble Supreme Court in the case of M.C. Mehta v. Union of India37. In the above mentioned case, the tanneries conceded to the fact that they were discharging effluents in the river and that such effluents were responsible for the adverse effects on the environment and the river. Yet, the Supreme Court did not shut down the tanneries. Instead, it ordered the tanneries to install effluent treatment plants and accordingly gave them a time period of six months. In the instant case, it is humbly submitted that although the Respondent has been discharging effluents in the River Asli, there is no direct and proximate nexus between the pollution and its consequential effects. And, thus, shutting down the factory would infringe upon the right to livelihood of the employees and would involve gross injustice. 47. In the case of Vellore Citizens’ Welfare Forum v. Union of India38, the Hon’ble Supreme Court passed a judgement suspending the closure order of tanneries in five districts, providing them reasonable time to install treatment devices. Inter alia, it stated that“We suspend the closure orders in respect of all the tanneries in the five districts of North Arcot Ambedkar, Erode Periyar, Dindigul Anna, Trichi and Chengai M.G.R. We direct all the tanneries in the above five districts to set up CETPs or Individual Pollution control Devices on or before November 30, 1996. Those connected with CETPs shall have to 37 38

M.C. Mehta v. Union of India, AIR 1988 SC 1037. Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647. 15 | P a g e [Memorial for Respondent]

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install in addition the primary devices in the tanneries. All the tanneries in the above five districts shall obtain the consent of the Board to function and operate with effect from December 15, 1996.”

48. From the perspective of personal liberty, the Supreme Court has, in Unni Krishnan v. State of Andhra Pradesh39, stated that several unenumerated rights fall under the ambit of Article 21 and recognised the right to social justice and economic empowerment as fundamental rights in Ashok Kumar Gupta v. State of U.P.40 Along the same lines, in Maneka Gandhi v. Union of India41, the Supreme Court observed that the compliance with natural justice is implicit in Article 21. When social and natural justice are considered to be fundamental rights, it is unreasonable on the part of Ms. Mehta to demand the closure of the sole plant of DML, which will thereby render around 45,000 workers unemployed and leave 2,00,000 more dependents in misery and squalor, or on the part of the government to issue a directive one of whose tangible harms is the loss of livelihood of all the employees who will have to be laid off by DML if they are forced to stop the manufacture and sale of some of their products. 49. In the case of Abhilash Textiles v. Rajkot Municipal Corporation42, the Gujarat High Court, keeping in mind the loss of livelihood of the employees in case the factory is shut down, did not pass any order shutting down the factory. It was held that“ In the facts and circumstances of the case it is hoped that before taking any coercive steps the respondent-Municipal Commissioner will give some more time to the petitioners to mend their ways and prevent the nuisance. This observation is made with a view to see that several workmen employed by the numerous factories may not be rendered unemployed on account of the fact that the petitioners are carrying on their business in unregulated manner. Subject to the aforesaid observations, the petitions are rejected. Notice discharged. Ad interim relief granted earlier stands vacated in each petition.”

50. It is also imperative to view Article 21 in the light of Article 39(a) of the Constitution43 which states –

39

Unni Krishnan v. State of Andhra Pradesh, AIR 1993 SC 2178. Ashok Kumar Gupta v. State of U.P., AIR 1997 SCW 2257. 41 Maneka Gandhi v. Union of India, AIR 1978 SC 597. 42 Abhilash Textiles v. Rajkot Municipal Corporation, AIR 1988 Guj 57. 43 Article 39(a), Constitution, 1950. 40

16 | P a g e [Memorial for Respondent]

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“The State shall, in particular, direct its policy towards securing – (a) That the citizens, man and women equally, have the right to an adequate means of livelihood.”

51. This DPSP has been read as a fundamental right in Olga Tellis v. Bombay Corporation44. 52. Article 39(a) of the Constitution, which is a DPSP, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another Directive Principle, provides, inter alia, that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though not enforceable by any court, are nevertheless fundamental in the governance of the country. The Principles contained in Articles 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21.

44

Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180. 17 | P a g e [Memorial for Respondent]

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PRAYER Wherefore, in light of the issues raised, arguments advanced and authorities cited it is most humbly and respectfully requested that this Hon’ble Court to adjudge and declare that:

1. The SLPs be dismissed. 2. The directive issued by the government should be struck down. 3. Reverse the order of High Court and not give any extra compensation. In the alternative, pass any other relief which the court may deem fit and proper.

All of which is humbly submitted by Counsels on behalf of the Respondents

XVI | P a g e [Memorial for Respondent]