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PDEA'S Law College, Hadapsar

MOOT COURT PROBLEM 7th 2018-2019

NAME:- Mr. NANDKUMAR VAIJENATH BANALE.

I.D.No:- 0241200137
CLASS:- L.L.B.-3rd YEAR

COUNSEL APPEAR ON BEHALF OF THE PETITIONER

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BEFORE THE HONBLE SUPREME COURT OF SINDHIA

MEMORIAL ON BEHALF OF THE PETITIONER

P.I.L. NO.------------/2019

IN THE MATTER BETWEEN

HAMEED KHAN AND OTHER ... PETITIONER

V/S.

UNION OF SINDHIA AND OTHER ...RESPONDENT

Most respectfully submitted to the Honourable chief justice &

other companion judge of Supreme Court of Sindhia.

COUNSEL APPEAR ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

Sr.No. Particulars Page No.

1. Index of Authorities 4
2. Abbreviations 5
3. Statement of Jurisdiction 6
4. Statement of Fact 8
5. Statement of Issues 10
6. Summary of Pleading 11
7. Arguments Advanced 12 to 18
8. Prayer 19

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THE INDEX OF AUTHORITIES

A] List Of Statute Referred:-

1. The Constitution Of India, 1950

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

3. The explosive act, 1884

B] Books Referred:-

1. M. P. Jain- The Constitution Of India.

2. M.Laxmikant- Indian Polity

C] Websites:-

1. www.indiankanoon.org

2. www.supremecourtcaselaw.com

D] Cases Referred:-

1. ARJUN GOPAL AND OTHERS V/S UNION OF INDIA AND OTHERS 1990 SC 851: 1990 (2)
SCC 3521.AIR

2.Subhas Kumar v. State of Bihar[lxi],

3.M .C. Mehta (Taj Trapezium Matter) v. Union of India,(1997) 2 SCC 353

4. Bombay Hawkers Union v Bombay Municipal Corporation

5. Chhattisgarh Biomass Energy Developers Association and Ors. v. Chhattisgarh S.E.R.C.

and Ors

ABREVIATIONS
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 AIR -------AII INDIA REPORTER

 SC ------- SUPREME COURT

 Art ------ ARTICLE

 PP ------ PAGES

 PIL ----- PUBLIC INTEREST LITIGATION

 SEC-----SECTION

 HC-------HIGH COURT

 UOI------UNION OF INDIA

 SCC------SUPREME COURT CASES

 &--------AND

 Pg---------PAGE

 VS-----------VERSUS

 PM---------- FINE PARTICULATE MATTERS (AIR POLLUTANTS)

STATEMENT OF JURISDICTION

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The petitioner has filed this PUBLIC INTEREST LITIGATION petition

before this Hon’ble Supreme Court under Art.32 of the constitution of Sindhia.

The Petitioner’s counsel respectfully submits that,

In this present case the Hon’ble Supreme Court of Sindhia has ample &
wide jurisdiction under Art. 32 of Constitution of Sindhia to hear & decide this
petition because in this present case the Petitioner has sufficient interest to file this
case & in this present case the violation of fundamental rights under Art.19(1)(G) &
Art. 21 , Art.51, are also present of public at large. So it has public interest.

State government of Rukma formulated “Using Firecrake During Diwali

and other festival” It is arbitrary action. This policy has violated the Fundamental
Rights of the petitioner and also public at large.

Therefore, this Hon’ble Supreme Court of Rukma has jurisdiction under

Article 32 of the Constitution of Sindhia to protect and enforce the Fundamental
Rights.

STATEMENT OF FACTS

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1. The union of Sindhia is located in the South Asian region of Asia. It is one of the
ancient nations in the world. It is the democratic country with the written
Constitution and having 29 states and 7 union territories. State of Rukma is the
national capital of the union of Sindhia
2. In a petition before the Supreme court of union of Sindhia the for alarming
degradation of air quality leading to serve air pollution in Asbia city to take
urgent step to improve environmental conditions in the city However, claim the
petitioners, children are much more vulnerable to air pollutants as exposure
thereto may affect them in various ways, including aggravation of asthma,
coughing, bronchitis, retarded nervous system breakdown and even cognitive
impairment..
3. certain suggestions were made by the learned counsel appearing for the
petitioners, which were as under:

1. Restrict licenses to low hazard fireworks.

2 .Period of grant of license is too early need not be from 2 days prior to
Dussehra.

3. Restrict window for use of fireworks to be from 7:00 p.m. to 9:00 p.m.

4. RWAs to hold community fireworks for a brief period of 30 minutes on a single.

5.Government be directed to give wide publicity to the ill effects of fireworks and
encourage restraint on responsible use.

6. Encourage teachers to tell students not to buy and use fireworks.”

4, The petitioners had pressed for interim relief in respect of fireworks, drawing the
attention of this Court to the emergent situation that has resulted in worsening the
air quality standards in Asbia City because of extensive use of fireworks, including
firecrackers during Diwali last year. It was pointed out that onset of winter itself
deteriorates air quality in this region and it gets aggravated because of
festival/marriage season that occurs during these very months. Taking note of the

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aforesaid factors, particularly impact of fireworks on the ambient air and unhealthy
effects thereof which had created unprecedented situation in Asbia City.

5. In the process, this Court also recognised the duty of the State to ensure a healthy
environment in terms of Article 48A of the Constitution of India as well as the duty
of the citizens to ensure the same under Article 51A(g) of the Constitution. The
Court also reminded itself of the “precautionary principle” which mandates that
where there are threats of serious and irreversible damage, lack of scientific
certainty should not be used as a reason for postponing measures to prevent
environmental degradation..

6. Apart from these problems he found that the people having odd number cars has
advantage over the people with even number of cars an they can use their cars for
more days where the month is of 31 days. And the consecutive month also begins
with odd number. According to him on the end of the said month and on the starting
day of next month the odd numbered cars are and that constitutes discrimination. In
the order the Court had taken note of the deleterious effects of air pollution on the
health of the people, particularly the children. Going by all these considerations.

7. The Court accepted the fact that burning of firecrackers during Diwali was not the
only reason for air pollution in Delhi and NCR and there was a need to tackle those
factors as well. However, it was observed that the immediate impact of use of
fireworks and firecrackers bursting during Diwali is an altogether different aspect.
The Court noted that there is direct evidence of deterioration of air quality at
alarming levels, which happens every year.

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STATEMENT OF ISSUE

ISSUE - I

Whether this petition is maintainable?

ISSUE – II

Whether there is violation of Art. 21 of the Constitution?

ISSUES- III

Whether there is violation of Art. 19 (1) (g) of the Constitution?

ISSUES- IV

Whether the Directive Principle of Indian Constitution Art.48(A) is follow ?

SUMMARY OF PLEADING

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IAAUES 01-Whether this petition is maintainable?

YES.

It is most respectfully submitted before this Hon’ble court that the present PIL possess large
number of public interest and violates the Fundamental Rights. Hence this Hon’ble court
should admit this PIL.

ISSUES 02-Whether there is violation of Article 21 of constitution?

YES.

The counsel humbly submit that in this present case, “Right to live is a fundamental
right under Art 21 of the Constitution and it includes the right of enjoyment of pollution free
water and air for full enjoyment of life. If anything endangers or impairs that quality of life in
derogation of laws, a citizen has right to have recourse to Art.32 of the Constitution for
removing the pollution of water or air which may be detrimental to the quality of life .”

ISSUES 03- Whether there is violation of Art. 19 (1) (g) of the Constitution?

NO.

The counsel humbly submit that in this present case, of Constitution of India provides Right
to practice any profession or to carry on any occupation, trade or business to all citizens
subject to Art.19 (6) which enumerates the nature of restriction that can be imposed by the
state upon the above right of the citizens.

ISSUES- 04 Whether the Directive Principle of Indian Constitution Art.48(A) is follow

No,

The counsel humbly submit that in this present case, Protection and improvement of
environment and safeguarding of forests and wild life The State shall endeavour to protect
and improve the environment and to safeguard the forests and wild life of the country.

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ARGUMENTS ADVANCED

Issues 01-

Whether this petition is maintainable ?

It is most respectfully submitted before this Honorable Supreme Court that the present
PIL possess larger number of public interest. Hence this Honorable court should admit
this petition.

In this present case, Firecrake is Used in Festival and Diwali due to large utiliation of
firecrake the Air is totally Pullulated this very harmful for Public at larges adn human
has facing Aggravation of asthma, coughing , Bronchitis, etc due to air pollution
violation of Fundamental Right u/Art. 21 of petitioner and peoples of State of Rukma.

There is a violation of right and right to Pollution free Air Fundamental Right of
people & said policy is arbitrary unreasonable. So, the counsel humbly submits that,
There is need to look into the above mentioned violation of Fundamental
Rights .Hence this court should admit this petition for the protection of those
fundamental Rights. Hence, this petition be admitted in public interest.

The above mentioned argument is strengthened by the case law mentioned hereinafter.

1. Arjun Gopal and Others Vs. Union of India and Others, AIR 1990 SC 851:
In this case S.C Has Observed that, “It is well settled that, the jurisdiction
conferred on Supreme Court under Art. 32 is an important and integral part of
the Indian Constitution but violation of a Fundamental Right is the sine quo
non for seeking enforcement of those rights by the Supreme Court. In order to
establish the violation of a Fundamental Right, the court has to consider the
direct and inevitable consequences of the action which is sought to be
remedied or the guarantee of which is sought to be enforced

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ISSUES 02-Whether there is violation of Article 21 of constitution?

The counsel humbly submits before this Hon’ble Court that in this present case,

The Blasting of Fiecrake is harmful to Public and this reason the quality of air is also
very poor violated Art. 21 i.e. Right of Pollution free water & Air. Environment and
life are interrelated. The existence of life on earth depends on the harmonious
relationship between ecosystem and environment. Especially homo-sapiens have very
close interaction with nature. Human beings are at the centre of concerns for
sustainable development and that they are entitled to a healthy and productive life in
harmony.
In the long evolution of the human race on this planet, a stage has been reached when,
through the rapid acceleration of science and technology, we have acquired the power
to transform our environment in countless ways and on an unprecedented scale.
Humanity's capacity to transform its surroundings, if used wisely and with respect to
the ways of nature, can bring to all communities the opportunity to enhance the
quality of life. Wrongly or heedlessly applied, or applied in iniquitous ways, the same
power can do incalculable harm to human beings and their environment. We see
around us growing evidence of human-caused harm in many regions of the earth the
dangerous levels of pollution in water, air, earth and living beings; destruction and
depletion of irreplaceable life forms and natural resources; major and undesirable
disturbances in the earth's climate and protective layers; gross deficiencies, harmful to
physical, mental and social health, in the living and working environments of humans,
especially in cities and industrial complexes. The “Right to Life” under Article 21
means a life of dignity to live in a proper environment free from the dangers of
diseases and infection. Maintenance 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.

The above mentioned argument is strengthen by the case law mentioned herein
after:-

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1.Subhas Kumar v. State of Bihar[lxi],

It has held that a Public Interest Litigation is maintainable for insuring

enjoyment of pollution free water and air which is included in ‘right to live’ under
Art.21 of the constitution.

The court observed:

“Right to live is a fundamental right under Art 21 of the Constitution and it

includes the right of enjoyment of pollution free water and air for full enjoyment of
life. If anything endangers or impairs that quality of life in derogation of laws, a
citizen has right to have recourse to Art.32 of the Constitution for removing the
pollution of water or air which may be detrimental to the quality of life

2. M.C. Mehta (Taj Trapezium Matter) v. Union of India,(1997) 2 SCC 353

In this case the S. C. has observed that,

The Court applied the principle of Sustainable Development in this case observing
that there needs to be a balance between economic development and environmental
protection. The Court indicated that relocation of the industries from TTZ was to be
resorted to only if Natural Gas was not acceptable/available by/to the industries as a
substitute for coke/coal The Court reaffirmed the “Precautionary Principle” and
“Polluter Pays Principle” laid down in Vellore Citizens Welfare Forum v. Union of
India . The ‘Polluter Pays Principle

The court held that the above-mentioned 292 industries shall as per the schedule
indicated change-over to natural gas as an industrial-fuel and the industries which
were not in a position to get gas connections for any reason would stop functioning
with the aid of coke/coal in the TTZ and may relocate themselves as per the orders
given by the Supreme Court.

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ISSUES 03-

Whether there is violation of Art. 19(1)(g)?

The counsel humbly submits before this Hon’ble Supreme Court that in this present
case,

Article 19(1)(g) provides a tool which will ensure to all citizens their right to earn
livelihood, this article is an enabling provision for the same. Article 19(1)(g)
guarantees to all citizens the right to practise any profession or to carry on any
occupation, trade or business. The ambit of this article tries to cover all forms as well
as means to earn livelihood and to do economic activity. The basic objective to add so
many overlapping terms i.e trade , business ,occupation, profession in this article in
our constitution is that the our constitution makers did not want to omit any kind of
economic activity and create any loophole.

Therefore We have said that Manufacturing of fire crake is also a one of the business
but it is explosive in nature in that lot of Harmful and Polluted Substances is used is
for manufacturing the fire crake and fire crake is used for only occasionally in India.

1) Bombay Hawkers Union v Bombay Municipal Corporation

which had come for consideration before the Supreme Court , the provisions of the
Bombay Municipal Corporation Act , 1888, were challenged on the ground that the
authorities were conferred arbitrary power to grant or refuse licenses for hawkers on
public streets and for removing unauthorized hawkers without giving them an
opportunity to be heard. Rejecting this contention the Supreme Court observed that
the public streets are by their very definition, meant for the use of the general public.
No person, has the fundamental right to carry on any business which causes nuisance,
annoyance or inconvenience to the public. It was, therefore, held that the provisions of
the B.M.C Act were in the nature of reasonable restrictions in the interest of the
general public and not violative of Art 19(1) (g) of the Constitution

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ISSUES- 04 Whether there is Follow the Direction of Art 48(A) of Indian Constitution?

The counsel humbly submits before this Hon’ble Supreme Court that in this present
case, Protection and improvement of environment and safeguarding of forests and
wild life The State shall endeavour to protect and improve the environment and to
safeguard the forests and wild life of the country Article 48A was added by the
Constitution (42nd Amendment) Act, 1976. The citizens of the country have a
fundamental right to a wholesome, clean and decent environment. The Constitution of
India, in terms of Article 48A, mandates that the State is under a Constitutional
obligation to protect and improve the environment and to safeguard the forest and
wild life in the country. By 42nd Amendment to the Constitution, the Parliament, with
an object of sensitizing the citizens of their duty, incorporated Article 51A in the
Constitution, inter alia, requiring a citizen to protect and improve the natural
environment including the forests, lakes, rivers and wild life and to have a
compassion for living creatures. The legislative intent and spirit under Articles 48A
and 51A(g) of the Constitution find their place in the definition of 'environment' under
the Environment (Protection) Act, 1986 (for short the 'Act of 1986'). The legislature
enacted various laws like the Air (Prevention and Control of Pollution) Act

The above mentioned argument is strengthened by the case law mentioned

hereinafter.

1.Chhattisgarh Biomass Energy Developers Association and Ors. v. Chhattisgarh

S.E.R.C. and Ors. it was observed that where Power Purchase Agreements between
distribution licensees and the generating companies utilizing renewable sources of
energy are in conformity with MNES guidelines or various policy guidelines, the
agreements are not to be tinkered with. The Commission has not considered the
impact of the aforesaid decisions, the preamble and Section 61(h) of the Electricity
Act, 2003, the National Electricity Policy, MNES guidelines, Article 48A and 51A(g)
of the Constitution and the aspect relating to protection of environment, which has
been the subject matter of various treaties and conventions,

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PRAYER

It is humbly prayed before this Hon’ble Supreme Court that in the light of the issues
raised, argument advanced and authorities cited,

IT IS THEREFOR PRAYED THAT

1. This PUBLIC INTEREST LITIGATION be admitted.

2. To declare the said policy unconstitutional.

3. Any other relief in the interest of justice, equality & good conscience.

And for this act of kindness the Respondent an in duty bound, shall forever
Pray.

(COUNSEL FOR THE PETITIONER)

DATE :- …23/…01…/2019……..

COUNSEL APPEAR ON BEHALF OF THE PETITIONER