SEEDLING SCHOOL OF LAW AND GOVERNANCE, JAIPUR NATIONAL UNIVERSITY,
JAIPUR
IN
THE HON’BLE
HIGH COURT OF RAJASTHAN
[PETITION NO.______/2013]
CASE CONCERNING THE THREAT TO ENVIRONMENTAL DEGRADATION DUE TO BOOK FAIR
MR. AJAY ROY………………..……. [PETITIONER]
VS.
STATE OF RAJASTHAN ……… [RESPONDENT]
ON THE SUBMISSION TO THE HON’BLE COURT
MEMORIAL OF PETITIONER
MR. AJAY ROY
SUBMITTED TO: - ___________ [ASSISTANT PROFESSOR]
SUBMITTED BY: - ___________ [B.A.LLB 8TH SEM.]
1
TABLE OF CONTENTS
INDEX OF AUTHORITIES.................................................................................................................3
STATUTES.....................................................................................................................................3
CASES CITED...............................................................................................................................3
INDIAN COURTS JUDGMENTS..................................................................................................3
BOOKS CITED..............................................................................................................................4
STATEMENT OF JURISDICTION......................................................................................................5
STATEMENT OF FACTS...................................................................................................................7
QUESTIONS PRESENTED.................................................................................................................8
ARGUMENTS ADVANCED................................................................................................................9
ISSUE I: THE BOOK FAIR WILL POLLUTE OR DEGRADE THE ENVIRONMENT AND
SUBSEQUENTLY WILL RESULT IN VIOLATION OF THE FUNDAMENTAL RIGHT UNDER
ARTICLE. 21 OF THE CONSTITUTION OF INDIA.......................................................................9
ISSUE II: THE PERMISSION TO HOLD A BOOK FAIR IS INVALID..........................................13
ISSUE III: THE ORGANIZING BOOK FAIR AT GANDHI MAIDAN WOULD RESULT IN PUBLIC
NUISANCE..................................................................................................................................14
SUBMISSIONS TO THE COURT.....................................................................................................16
2
INDEX OF AUTHORITIES
STATUTES
1. THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981
2. THE NOISE POLLUTION (REGULATION AND CONTROL) RULES, 2000
3. ENVIRONMENT PROTECTION ACT, 1986
4. THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981
5. CONSTITUTION OF INDIA, 1950
CASES CITED
INDIAN COURTS JUDGMENTS
1. ABDUL RAZAAK MOHMDBHAI VS STATE OF GUJARAT SPL. C.A. NO. 4069/88.
2. BALAKRISHNAN NAIR V. GOVERNMENT OF KERELA AIR 2005 KER 223.
3. BANGALORE MEDICAL TRUST V. BS MUDDAPPA,1991 SC 1902.
4. BINNY LIMITED AND ANR. VS. V. SADASIVAN AND ORS
5. FRANCIS CORALIE VS. THE ADMINISTRATOR, UNION TERRITORY OF DELHI AND OTHERS,
AIR 1981 SC 746
6. GOBIND SINGH V. SHANTI SARUP AIR 1979 SC 143
7. HINCH LAL TIWARI V KAMAL DEV (2001) 6 SCC 496
8. KAILASH THAKUR, ENVIRONMENT PROTECTION LAW AND POLICY IN INDIA, DEEP AND
DEEP PUBLICATIONS, NEW DELHI, PG. 204
9. KARTAR SINGH VS. STATE OF PUNJAB, 1994 SCC (3) 569
10. KM CHINANAPA V. UNION OF INDIA AIR 2003 SC 724.
11. L. CHANDRA VS. UNION OF INDIA, AIR 1997 SC 1125
12. MANUSUKHAL VITHALDAS CHAUHAN V. STATE OF GUJARAT, AIR 1997 SC 3400 AT
3405.
13. NAVINCHANDRA MAJITHIA V STATE OF MAHARSHTRA (2000) 7 SCC 640.
3
14. PRABODH VERMA V STATE OF U.P, AIR 1985 SC 167: (1985) 1 SCR 216 : (1984) 4 SCC
251.
15. RAM BAJ SINGH (DR) V. BABULAL AIR 1982 ALL 285.
16. RAMLAL V. MUSTAFABAD OIL AND COTTON GINNING FACTORY, AIR 1968 PUNJ & HAR
399.
17. RS VERMA V. STATE OF RAJASTHAN AIR 2004 RAJ 175.
18. SUBHASH KUMAR V. STATE OF BIHAR AIR 1991 SC 420.
19. SUBHASH KUMAR V. STATE OF BIHAR AND ORS., 1991 1 SCC 598
20. V LAKSHMIPATHY VS. STATE, AIR 1991 KANT 57.
21. VELLORE CITIZENS WELFARE V. UNION OF INDIA AIR 1996 SC 2715.
BOOKS CITED
1. CLERK AND LINDSHELL, LAW OF TORT, FOURTEENTH EDN.
2. ENVIROMENT LAW IN INDIA, P. LEELAKRISHNAN, THIRD EDITION, LEXIS NEXIS
BUTTERWORTHS WADHWA.
3. ENVIRONMENT LAW CASE BOOK, P. LEELAKRISHNAN, SECOND EDITION, LEXIS NEXIS
BUTTERWORTHS WADHWA.
4. ENVIRONMENTAL LAW CASE BOOK, P. LEELAKRISHNAN, SECOND EDITION, LEXIS NEXIS
STUDENT SERIES.
5. KAILASH THAKUR, ENVIRONMENT PROTECTION LAW AND POLICY IN INDIA, DEEP AND
DEEP PUBLICATIONS, NEW DELHI, P. 204
6. M P JAIN, INDIAN CONSTITUTIONAL LAW, SIXTH EDITION, 2010, LEXIS NEXIS
BUTTERWORTHS WADHWA.
7. P LEELAKRISHNAN ET AL, ‘ENVIRONMENT EXPERTISE AND JUDICIAL REVIEW: NEED FOR
STRATEGY SHIFT AND LAW REFORM’, JOURNAL OF THE INDIAN LAW INSTITUTE, 1999,
VOL 41.
8. P.M BAKSHI, CONSTITUTION OF INDIA.2009 EDITION.
9. POONAM AGGARWAL, RANJANA AGRAWAL, PARVEEN DAMIJA INTERACTIVE
ENVIRONMENTAL EDUCATIAON BOOK VIII P 137.
4
5
STATEMENT OF JURISDICTION
The Petitioner has approached before the Hon’ble High Court of Rajasthan under the writ
Jurisdiction of the court given under Art. 226 of the Constitution of India 1950. The petitioner
seek the issuance of a writ in the nature of mandamus directing respondents authorities to act in
accordance with law and to forthwith revoke all decisions relating to the holding of Book Fair at
Gandhi Maidan.1
In case of any violation of fundamental rights guaranteed under Part-III of the constitution, the
writ petition can be filed before the High Court under Article 226 and it can exercise its
jurisdiction regarding the environmental issues as the writs are known as the constitutional
remedies.
Writ petition under Article 226 of the Indian Constitution can be issued against private
authorities when they were discharging public functions.2
The Right of enjoyment of pollution-free water and air for full enjoyment of life is a fundamental
right enshrined under the right to life guaranteed under Article 21 of the Constitution. 3 In a
civilized society man has the fundamental right to freedom, equality and adequate conditions of
life in an environment of equality that permits a life of dignity and well-being and bears a solemn
responsibility to protect and improve the environment for present and future generation 4. The
same has been reiterated in the Stockholm Declaration of United Nations on Human
Environment 1972.5 It is the responsibilities of the state and the citizen to protect and improve
the environment under art 48-A and art 51-A (g), of the Indian constitution6.
1
Navinchandra Majithia v State of Maharshtra (2000) 7 SCC 640
2
Binny Limited and Anr. Vs. V. Sadasivan and Ors.
3
Subhash Kumar v. State of Bihar AIR 1991 SC 420
4
KM Chinanapa v. Union of India AIR 2003 SC 724
5
Principle No. 3
6
Hinch Lal Tiwari V Kamal Dev (2001) 6 SCC 496.
6
The writ of Mandamus is prayed before the High Court. Mandamus is issued where a
fundamental right is infringed by a statute, statutory order or notification; or a non-statutory
administrative order, to strike down such law or statutory order7.
According to Supreme Court, mandamus is issued, inter alia, “to compel performance of public
duties which may be administrative, ministerial or statutory in nature” 8. In the present case
environmental pollution will arise due to book fair going to be held in Maidan for which the
permission has been granted by the concerned departments. This will lead to huge amount of
dust particles being thrown into the atmosphere and result in air pollution.
The increase in the number of vehicles will also result into a much higher
suspended particulate matter (SPM) count for the entire area and create noise pollution due to
traffic jam. This environmental pollution which spoils the atmosphere and thereby affects the life
and health of the person is regarded as amounting to violation of Article 21 of the constitution. 9
The petitioners are residents of the locality and apprehended to be adversely affected by the
Book Fair going to be held at the Gandhi Maidan.
Furthermore In case of L. Chandra vs. Union of India10 and Kartar Singh vs. State of Punjab11,
the court held that it is settled law that no statute or legislation can take away or affect the writ
jurisdiction of the High court under Article 226 of the constitution.
Thus, the court is having the appropriate jurisdiction to entertain the petition under Article 226 of
Constitution of India.
7
Prabodh Verma V State of U.P, AIR 1985 SC 167 : (1985) 1 SCR 216 : (1984) 4 SCC 251 (paras. 38,50)
8
Manusukhal Vithaldas Chauhan v. State of Gujarat, AIR 1997 SC 3400 at 3405: (1997) 2 SCC 622
9
Kailash Thakur, Environment Protection Law and Policy In India, Deep and Deep Publications, New Delhi, Pg.
204
10
AIR 1997 SC 1125
11
1994 SCC (3) 569
7
STATEMENT OF FACTS
BACKGROUND:
Gandhi Maidan is an area of about 8.14 Square Kilometers.
This area is like an oasis in the heart of the Jaipur city facing numerous problems of air and
noise pollution.
The Maidan provides the much needed greenery to the city. It is used by young for
recreation and by the old to have daily walk. It is said to provide a true respite for the local
people residing in the area where seven busy roads of the city meet.
The area is also used for sports by schools and as a knowledge development area.
Over the years a large portion of the Maidan has been taken over by the water booster plant
and by the garage of Jaipur Development Authority. Now, only 4.7 Square km of the
Maidan is left for the use of the public.
PROBLEM ARISES:
The Jaipur Book Fair being organized by the Association of Publishers & Booksellers of
Jaipur, registered under the Rajasthan Societies Registration Act, 1961.
It is known as the “Publishers & Booksellers Guild”.
The fair was being held for 2 decades in the Gandhi Maidan at Bazar Road at the crossing
of Residency Street and Jawaharlal Nehru Road.
APPROACH BEFORE THE HON’BLE COURT:
Aggrieved against the degradation to the local environment writ petition was filed in the
Jaipur Bench of Rajasthan High Court by Ajay Roy, a local resident seeking, cancellation
of the permission to hold the Book Fair at the Gandhi Maidan from 31 st July, 2013 to
August 11, 2013.
8
QUESTIONS PRESENTED
ISSUE I: WHETHER THE HOLDING OF BOOK FAIR WILL POLLUTE OR DEGRADE THE
ENVIRONMENT AND SUBSEQUENTLY WILL RESULT IN VIOLATION OF THE FUNDAMENTAL
RIGHT UNDER ARTICLE. 21 OF THE CONSTITUTION OF INDIA?
ISSUE II: WHETHER THE PERMISSION TO HOLD A BOOK FAIR IS INVALID?
ISSUE III: WHETHER THE ORGANIZING BOOK FAIR AT GANDHI MAIDAN WOULD RESULT
IN PUBLIC NUISANCE?
9
ARGUMENTS ADVANCED
ISSUE I: THE BOOK FAIR WILL POLLUTE OR DEGRADE THE ENVIRONMENT AND
SUBSEQUENTLY WILL RESULT IN VIOLATION OF THE FUNDAMENTAL RIGHT UNDER
ARTICLE. 21 OF THE CONSTITUTION OF INDIA.
In the matter before the court, the permission to hold a Book Fair at Gandhi Maidan will result in
Environmental Degradation and subsequently result in the violation of Right to live with human
dignity enshrined under Article 21 and guaranteed by the Constitution of India, 1950.
In the present case, Gandhi Maidan is such a place where seven busy roads of the city meet and
this is only true respite for the people living nearby. It should be regarded as silent zone in
accordance with the Rule 3(5) of the Noise Pollution (Regulation and Control) Rules, 2000. This
type of Open spaces like green areas and parks are the lungs of densely populated region and the
same shall not be allowed to be converted for other purposes. 12 Parks and green belts help in
purification of air and they prevent pollution. They are instrumental in maintaining ecological
balance.13
If book fair will be held at such place, this will increase the density of noise pollution, air
pollution, and soil pollution in that particular area which is harmful for the people who are living
there. The pollution will increased in very high density as a large gathering of people will attend
this book fair.
The green cover of the Maidan will be degraded as during the Book Fair due to visitors would be
walking on the grass. This will lead to huge amount of dust particles being thrown into the
atmosphere. The increase in the number of vehicles will also translate into a much higher
suspended particulate matter (SPM) count for the entire area and increased noise pollution due to
traffic jam.
12
RS Verma v. State of Rajasthan AIR 2004 Raj 175
13
Ibid, p. 176
10
Major sources of SPM are burning of fossil fuel, burring of waste, running of vehicle like cars,
buses, truck, motor cycle,14 Noise pollution The trucks, buses, cars, two wheelers , all produce
excessive noise15
The generation of unreasonable noise within the environment is considered a form of pollution
because it lowers the quality of life. There are several specific ways in which excessive noise
can affect people adversely16
a) Repeated interference with sleep of Human beings.
b) Effect on hearing or Deafness
c) Effect on communication or speech interference
d) Mental or Physiological Effects
e) Effects on physical health and working efficiency or psychological
This adverse effect on the people living nearby is in violation of the fundamental right of Right
to life under article 21 of the constitution of India.
Protection of the environment, open spaces for recreation and fresh air, play grounds for
children, promenade for the residents, and other conveniences or amenities are matters of great
public concern and of vital interest to be taken care of in a development scheme.17
The public interest in the reservation and preservation of open spaces for parks and play grounds
cannot be sacrificed by leasing or selling such sites to private persons for conversion to some
other user. Any such act would be contrary to the legislative intent and inconsistent with the
statutory requirements.18 Furthermore, it would be in direct conflict with the constitutional
mandate to ensure that any State action is inspired by the basic values of individual freedom and
14
Poonam Aggarwal, Ranjana Agrawal, Parveen Damija Interactive Environmental Educatiaon Book VIII p 137
15
Ibid p 103
16
SCHEDULE(See rule 3 (1) and 4 (1) of THE NOISE POLLUTION (REGULATION AND CONTROL) RULES,
2000,
17
Bangalore Medical Trust v. BS Muddappa,1991 SC 1902
18
Bangalore Medical Trust vs B.S. Muddappa And Ors, [AIR 1991 SC 1902].
11
dignity and addressed to the attainment of a quality of life which makes the guaranteed rights a
reality for all the citizens19.
No person has a right to make user of his property as materially interfering with right of
neighbour to enjoy his property. The relation of the members of the society is necessarily to be
governed by the principles of ‘live and let live’ and ‘give and take’. 20 In the present matter, the
residents of the locality are the persons intimately, vitally and adversely affected by the plan of
Association of Publishers & Booksellers as it is destructive of the environment and deprives
them of facilities reserved for the enjoyment and protection of the health of the public at large.21
The petition for cancellation of permission to organize a book fair at Gandhi Maidan is under
“Precautionary Principle” that is a tool for environment protection and has even attained
international recognition in the Rio conference on Environment and Development 1992.22 The
main purpose of Protection of Environment Act is to create an authority under Sec. 3(3) is to
create an authority with adequate powers to control pollution and protect the environment 23. With
the change in time, the Supreme Court is of the view that it is better to err on the side of caution
and prevent environmental harm than to run the risk of irreversible harm.24
One cannot underestimate the contributions of trees to the non-forest areas as they help to
preserve the ecological integrity of the areas and plays a vital role in prevention of soil erosion,
and wanton destruction of trees.25
The petitioners are entitled to live in an environment having clean air and noise levels within the
prescribed limits. They are also entitled to enjoy facilities provided by the Ghandi Maidan. The
importance of clean air in the lives of individuals and the community is a fundamental right
guaranteed under Article 21 of the Constitution of India
19
Abdul Razaak Mohmdbhai, Heirs Of ... vs State Of Gujarat on 10 October, 2001 Spl. C.A. No. 4069/88
20
Ram Baj Singh (Dr) v. Babulal AIR 1982 All 285, p. 287
21
Compromis. Para.1
22
Rio Declaration 1992, Principle 15
23
Vellore Citizens Welfare v. Union of India Air 1996 SC 2715, p. 2724
24
P Leelakrishnan et al, ‘Environment Expertise and Judicial Review: Need for strategy shift and law reform’,
Journal of the Indian Law Institute, 1999, vol 41, p. 357, 362-63
25
Balakrishnan Nair v. Government of Kerela AIR 2005 Ker 223, p. 225
12
The Supreme Court in a landmark judgment Francis Coralie vs. The Administrator, Union
Territory of Delhi and others,26 observed “We think that the Right to Life includes the right to
live with human dignity and all that goes along with it…. The magnitude and content the
components of this right would depend upon the extent of development of the country, but it
must, in any view of the matter, include the right to the basic necessities of life. This now
includes the right to clean and hygienic environment and above all, the right to live with basic
dignity.”
In the present case environmental pollution will arise due to book fair going to be held in
Maidan, This will lead to huge amount of dust particles being thrown into the atmosphere and
create air pollution due to the increase in the number of vehicles will also translate into a much
higher suspended particulate matter (SPM) count for the entire area and create noise pollution
due to traffic jam..
In Hinch Lal Tiwari v. Kamla Devi,27 the Supreme Court held that healthy environment enables
people to enjoy a quality of life which is the essence of the rights guaranteed under Article 21.
The importance of a Gandhi maidan in the lives of citizens in a crowded city has also been
recognized by the Supreme Court in the case of Bangalore Medical Trust vs. BS Muddappa28.In
this case the Supreme Court considered the question as to whether the members of the public
being residents of the locality, have a right to object to the diversion of the users of the space
reserved for a Park meant for the general public and for the protection of the environment.
In the case of Subhash Kumar v. State of Bihar and Ors.,29 the supreme Court held that Right to
live is a fundamental right under Article 21 of the Constitution and it includes the right of
enjoyment of pollution-free water and air for full enjoyment of life.
It is humbly contended that if the Association of Publishers & Booksellers are given the
permission to organize the Book Fair, it would certainly turn Gandhi Maidaan into an unhealthy
and unsafe place by digging up the Maidan for their installations. Huge branches of the big trees
would be cut off. It is apprehended that the grass will be totally destroyed. This will lead to huge
26
AIR 1981 SC 746
27
(2001) 6 SCC 496
28
1991 SC 1902.
29
1991 1 SCC 598
13
amount of dust particles being thrown into the atmosphere and would lead to environmental
degradation at large scale. The green cover of the Maidan will be degraded as during the Book
Fair would be visited by millions of people and would leave the surface dusty, bare and dirty.
Shopkeepers and visitors will be looking for refreshments at the Fair. This will lead to
unhygienic environment during as well as at the conclusion of the Fair. The increase in the
number of vehicles will also translate into a much higher suspended particulate matter (SPM)
count for the entire area30 thereby in violation of the Air (Prevention and Control of Pollution)
Act, 1981
In the present matter pollution will arises due to book fair and will adversely affect the human
health, therefore the book fair should not be held at such a place which wouldn’t serve the
purpose of that. Henceforth, it is submitted that organizing book fair would result in degradation
of environment and subsequently violation of Article 21 of Indian constitution.
ISSUE II: THE PERMISSION TO HOLD A BOOK FAIR IS INVALID.
In present matter the permission of holding book fair is invalid as Gandhi Maidan lies at the
heart of the Jaipur city. It is one of the busiest traffic areas of the city. It is regularly used by not
only the local residents but also by the people living in the nearby locality for their recreational
activities. Most of these activities such as walking, jogging, light exercise, in the form of sports,
such as Tennis, are now recognized as essentials for good health. By providing an open space in
an otherwise congested locality Gandhi Maidan provides the necessary space for a breath of
fresh air.
In Banglore Medical Trust vs. BS Muddapa31, the Supreme Court held that a private nursing
home cannot be a substitute for Public Park and Justice KT Thommen based his supporting
judgment on the premises that land set apart for a public park remains dedicated to the public and
is reserved for that purpose.
32
In case of V Lakshmipathy vs. State, the High Court said, ‘once an entry is made in the
outline development plan embarking the area for residential purpose of use, the land is bound to
be put to such a use only.’
30
http://lifestyle.iloveindia.com/lounge/causes-and-effects-of-air-pollution-4434.html
31
AIR1991 SC 1902,pp 1912, 1216
32
AIR 1991 Kant 57
14
In the present matter the permission to hold the Book Fair at the Gandhi Maidan is invalid
because the Gandhi Maidan provides the necessary space for a breath of fresh air of the people
who are residing near, and it is only use for residential purpose.
As per the sub clause (3) of rule 3 33 The State Government shall take measures for abatement of
noise including noise emanating from vehicular movements and ensure that the existing noise
levels do not exceed the ambient air quality standards specified under these rules.
Section 3 and 5 of environment Protection Act 1986, empowers the government to make all such
direction and take all such measures as are necessary or expedient for protecting and promoting
the environment.
The Central and the State Boards now exercise the powers and functions under Sec. 16 and 17 of
the Air Act, respectively with regard to the prevention and control of noise pollution including
the laying down of noise standards34
In the present matter the permission of hold book fair is invalid due to contrary to law and
statute.
ISSUE III: THE ORGANIZING BOOK FAIR AT GANDHI MAIDAN WOULD RESULT IN PUBLIC
NUISANCE.
The essence of nuisance is a condition or activity which unduly interferes with use or enjoyment
of land.35 The freshness of air is necessarily diminished by erecting of building or pillars and
36
tents as environment around become tainted. One’s right to the beneficial enjoyment of one’s
land free from air, water or noise pollution, without disturbing the natural environment, is
guaranteed under the law of easement.37
It is very much clear from the facts that, Gandhi Maidan is one of the hold-up areas of the city.
The junction where seven roads meet is a region of permanent traffic jam throughout the day. It
33
THE NOISE POLLUTION (REGULATION AND CONTROL) RULES, 2000
34
The Air (Prevention and Control of Pollution) Act, 1981
35
Clerk and Lindshell, Law of Tort, Fourteenth Edn, para 13, p. 91
36
Ramlal v. Mustafabad Oil and Cotton Ginning Factory, AIR 1968 Punj & Har 399
37
Gobind Singh v. Shanti Sarup AIR 1979 SC 143
15
is apprehended that stepping up of noise pollution and traffic jams would inevitably cause
hardship to people living in vicinity. The traffic snarls every morning and afternoon for
continuous ten days would aggravate the intolerable situation.38
Holding of the Fair at Gandhi Maidan would be a direct infringement of the directive principles
as enshrined in Articles 48A and in breach of Article 51A(g). A perusal of the aforesaid two
articles would clearly show that State has been mandated two endeavours to protect and improve
the environment. Article 51A(g) makes it a fundamental duty of every authority including every
citizen of India to protect and improve the environment.39
Hence, if book fair is organized by Association of Publishers & Booksellers of Jaipur, it would
result in public nuisance.
38
Compromis para. 2
39
Subhash Kumar v. State of Bihar and Ors., 1991 1 SCC 598.
16
SUBMISSIONS TO THE COURT
In the light of the issues raised, argument advanced authorities cited and for the forgoing reasons
the petitioner “Mr. Ajay Roy” requests to the Hon’ble Court to adjudge and
1. declare, that the Holding Book Fair at such place will pollute the environment and will
cause serious body harm to the people living nearby.
2. declare, that the permission to hold the Book Fair should be cancelled as it pollute the
environment.
3. declare, that the Book Fair will amount to public Nuisance.
Or to pass any such judgment as it may deem fit in the interest of justice, equity and good
conscience
All of Which Respectfully Submitted
Counsel of Petitioner
Date________
Place _______
17
