IN THE HON’BLE HIGH COURT OF BRAMHA

W.P. No________ / 2019

ALERT INDIVA …Petitioner

Versus

STATE OF BRAMHA & OTHERS …Respondents

PETITION INVOKED UNDER ARTICLE 226 & ARTICLE 227 OF THE

CONSTITUTION OF INDIVA

MEMORANDUM ON BEHALF OF THE PETIOTIONER

MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

TABLE OF CONTENTS

LIST ABBREVIATIONS…………………………………………...5-6

LIST OF AUTHORITY…………………………………………………………………………7

STAEMENT OF JURISDICTION………………………………….9

STATEMENT OF FACTS………………………………………….10

STATEMENT OF ISSUES …………………………………........11

QUESTION OF LAW ……………………………………………13

SUMMARY OF ARGUMENTS…………………………………14

PRAYER……………………………………………………………………………………….24

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MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

SUMMARY OF ARGUMENTS

I. WHETHER THE PRESENT PETITIONS HAS BEEN FILED IN PUBLIC

INEREST & THEREFORE MAINTAINABLE AS A PUBLIC INTEREST

LITIGATION ? ………………………………………………….......13

II. WHETHER THE WRIT PETITION FILED UNDER ART 226 & ART

227 OF THE CONSTITUTION OF INDIVA IS

MAINTAINABLE?.................................................................................15

III. WHETHER THE HIGH COURT OF BRAMHA CAN INTERFARE IN

ANY POLICY DECISION TAKEN BY THE STATE OF BRAMHA

?..................................................................................................................17

IV. WHETHER THE DISPLACEMENT OF THE AGRICULTURIST FROM

THE AREA WHERE THE PROPOSED DAM IS TO BE CONSTRUCTED

AMOUNT TO VIOLATION OF ART.21 OF THE CONSTITUTION OF

INDIVA?......................................................................................................18

V. WHETHER THE ENVIRONMENT CLEARANCE CERTIFICATE

GRANTED BY THE STATE IS CONTRARY TO THE PROVISIOND OF

CONSTITUTION OF

BRAHMA?..............................................................................................21

VI. WHETHER THE DECISION TAKEN BY THE STATE OF BRAMHA TO

CONSTRUCT THE DAM DESERVES TO BE MAINTAINED OR

SHOULDBEQUASHED AND SET

ASIDE?.....................................................................22

PRAYER…………………………………………………………………..........23

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MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

LIST OF ABBREVIATIONS

& And

¶ Paragraph

AIR All India Reporter

Anr. Another

Art. Article

Arts. Articles

CRL Civil rules for courts of limited jurisdiction

Co. Company

EC Environmental clearance

Govt. Government

Hon’ble Honorable

ISP Internet Service Provider

Ltd. Limited

MoEF Ministry of environment and forest

No. Number

NGO Non-governmental organization

NGT National green tribunal

Ors. Others

Pg. Page Number

PIL Public Interest Litigation

S. no Serial Number

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MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reports

Sec. Section

UOI Union of India

v. Versus

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 MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

INDEX OF AUTHORITIES

STATUTES REFERRED

S.No. NAME YEAR

1. The Constitution of India 1950

2. National Green Tribunal Act 2010

The Right To Fair Compensation And Transparency In

3. 2013
Land Acquisition , Rehabilitation and Resettlement act

4. Environment Protection Act 1986

BOOKS REFERRED

S.No. AUTHOR & TITLE EDITION & YEAR

1. M.P. Jain, Indian Constitutional Law 7th Edition, 2016

2. P.M. Bakshi, The Constitution of India 13th Edition, 2015

3. Shayam Diwan,Environmental Law and policy in India 2nd Edition,1991

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 MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

CASES REFFERED

NATIONAL JUDICIAL DECISION

S.No Case Name Pg.No

1. Janta Dal v. H. S. Chowdhary AIR1993 SC 769 13

2. S.P. Gupta and Ors. v. UOI (AIR 1982 SC 149) 13

3. M.C.Mehta v.Union of india (AIR 1998) 8 SCC 206) 14

4. Almitra Patel v. UOI 14

5. T.N.Godaverman v. UOI (1996) 9 SCR982 14

6. Guruswami v. Mysore AIR 1954 SC592 15

7. Comptroller & auditor general v. K.S.Jagnnathan AIR1987SC537 15

8. Parry &co. v. Commercial Emplyees association AIR 1952 SC179 16

9. Dhaya lala v. Rasul Mohd Rahim AIR1964SC1320 16

10. Menka Gandhi v. UOI AIR 1978 SC597 17

11. Narmada Bachao Andolan v. State Of Madhya Pradesh AIR 2000 SC 664 17

13. A.S.sangwan v. UOI AIR 1981 SC 1595 17

14. Olga Tellis v. Bombay Municipal corporation AIR 1986 SC 180 18

15. Sayyed Ratanbhai Sayeed v. Shirdi nagar panchayat AIR 2016 SC 1042 18

16. chameli singh v. state of UP AIR 1996 SCC 549 19

17. Faridabad C.T.Scan centre v. Health service AIR1997SC3801 21

18. L.K.Kootwal v. State of Rajasthan AIR1988RAJ2 21

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MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

WEBSITES REFEREED

1. Indian kanoon Indiankanoon.org

2. Legal service India www.legalserviceindia.com

3. SCC Online www.scconline.com

4. Green Tribunal www.greentribunal.gov.in

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MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

STATEMENT OF JURISDICTION
The Petitioners humbly submit to the jurisdiction of the Hon’ble High Court of Brahma
invoked under Art. 226 & Art. 227 of the Constitution of Indiva.

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 MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

STATEMENT OF FACTS

¶1. The state of Brahma is one of the state of India the state of Indiva is facing an acute scarcity
of water and the condition is near to drought .

¶2. .Despite of the situation of drought ,the state of Brahma has taken decision to construct
number of dams to preserve the rainy water

¶3. For the purpose of construction of no. of dams ,the state has invited Global tender and
reliable Industries Limited has been given the contract of dam.

¶4. The construction of such dams would affect the Villagers .The villager have agriculture as
their main occupation, by the construction this dam their agricultural land will be acquired by
government and deprive them of their right to livelihood and they would be displaced.

¶5. The Reliable Industries Limited has been given environment clearance by the Ministry of
Environment and Forest on the ground that the government has authority to do in largest
public interest.

¶6. an NGO named Alert India which works for the protection of environment filed a petition
under article 226 and 227 of the Constitution of Indiva on the ground that the EC Certificate
granted is illegal.

¶7. Construction of such dams is violation of article 21 of the Constitution of Indiva.

¶8. That the constitution of Brahma is same as the Constitution of India.

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MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

STATEMENT OF ISSUES

I.WHETHER THE PRESENT PETITIONS HAS BEEN FILED IN PUBLIC INEREST & THEREFORE MAINTAINABLE AS A

PUBLIC INTEREST LITIGATION ? 13

II.WHETHER THE WRIT PETITION FILED UNDER ART 226 & ART 227 OF THE CONSTITUTION OF INDIVA IS
15
MAINTAINABLE?

III.WHETHER THE HIGH COURT OF BRAMHA CAN INTERFARE IN ANY POLICY DECISION TAKEN BY THE STATE

OF BRAMHA ? 17

IV.WHETHER THE DISPLACEMENT OF THE AGRICULTURIST FROM THE AREA WHERE THE PROPOSED DAM IS

TO BE CONSTRUCTED AMOUNT TO VIOLATION OF ART.21 OF THE CONSTITUTION OF INDIVA? 18

V.WHETHER THE ENVIRONMENT CLEARANCE CERTIFICATE GRANTED BY THE STATE IS CONTRARY TO THE

PROVISIOND OF CONSTITUTION OF BRAHMA? 21

VI.WHETHER THE DECISION TAKEN BY THE STATE OF BRAMHA TO CONSTRUCT THE DAM DESERVES TO BE

MAINTAINED OR SHOULD BE QUASHED AND SET ASIDE? 22

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MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

QUESTION OF LAW

1.Whether the right to livelihood under Art 21 is violated?

2.whether the required just,reasonable & fair procedure under Art 21 has been violated?

3.Whether procedure established by law under Art 300A was violated?

4.whether Right of trade,occupation under Art 19(1)(g) has been violated?

5.whether the Legal requirement of public hearing were fulfilled prior to grant the EC?

6.whether the NGT act were violated?

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 MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

SUMMARY OF ARGUMENTS

I. WHETHER THE PRESENT PETITION HAS BEEN FILED IN PUBLIC INEREST &
THEREFORE MAINTAINABLE AS A PUBLIC INTEREST LITIGATION ?

It is humbly submitted by the petitioner that the present petition filed by petitioner is
maintainable as it is a matter of public interest under article 226 of the Constitution of Indiva.
since the construction of proposed dam is affecting a number of fundamental right integral to
the right to life guaranteed under article 21. so the petitioner (Alert Indiva) has approached
the Hon’ble Court for protecting fundamental right of the affected people through this PIL.
The petitioner is an NGO,which has been working for the protection of rights of persons
aggrieved by unjustifiable acquisition of their valuable agricultural property.The NGO acting
bonafide with the sole object of helping out the needy ,sufferers,aggrieved by the disputed EC

THE NGO has locus standi to bring the PIL-

The NGO respectfully submits that it has a locus standi to approach the Hon’ble Court for
this PIL. it is humbly submitted by petitioner that in the case of Janata Dal vs H.S.
Chowdhary1, a person acting Bonafide and having sufficient interest in the preceding of PIL
will alone have a locus standi and can approach the court to wipe out the tear of the poor and
needy suffering from violation of their Fundamental Rights. In the S.P. Gupta and others vs
President of India and others2 ,a seven judge bench of Supreme Court has held that any
member of the public having sufficient interest can approach the court for enforcing
constitutional or legal right of the person and for redressal of grievances .

Quote Justice P N Bhagwati –

“Where a legal wrong or legal injury is caused to person or to determine the class of person
by reason of violating of any constitutional or legal remedy and such person or determinant
class of person is by reason of poverty helplessness and disability or socially aur economic
disadvantages position unable to approach the code for relief any member of the public can
maintain an application for an appropriate direction or order writ in the high court under
article 226 in the case of breach any fundamental right to this court under article 32”

1.AIR 1993 SC 769. 2.AIR 1982 SC 149.

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MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

as a large number of judgement of Supreme Court and High court show several NGOs and
public spirited individual have moved to the court in the past to seek relief through PIL. In
matters such as problem created by and unchecked vehicle and industrial pollution3 ,
negligence in management of solid waste4 ,construction of large project and increasing
deforestation5 .The first PIL related to the protection of environment was filed by an NGO
(Rural litigation and entitlement Kendra vs State of UP AIR 1990 SC 292)

3.M.C.Mehta v. Union of India (1998)8 SCC206.

4.Almitra Patel v. UOI

5.T.N. Godaverman Tirumulkpal v. UOI

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MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

II.WHETHER THE WRIT PETITION FILED UNDER ART 226 & ART 227 OF THE
CONSTITUTION OF INDIVA IS MAINTAINABLE?

It is humbly submitted that the present writ petition brought under article 226 and article 227
of the Constitution of India is maintainable article 226 one of the Constitution states that
every high court shall have power within its jurisdiction to issue to any person authority
including any government directions order order it's including rates in nature of mandamus
and provision for the enforcement of any of the rights conferred by the part III and go for any
other purpose in the present petition the writ of mandamus and prohibition is applicable in
Present petition the environment clearance has been granted by the Ministry of Environment
and Forest in properly and regarded without following the procedure for obtaining such
clearance so the writ of mandamus and prohibition under article 226 is applicable is a
command issued by a court commanding a public authority to perform a public duty
belonging to its office.( Guruswami v. Mysore6 and Comptroller and Auditor General v. K.S.
Jagannathan7 )

The writ of prohibition of also applicable in the present petition to stop the construction of
proposed dams.

Role of NGT-

For effective and expeditors in disposal of cases relating to Environment protection and
conservation of forest and other natural resources including enforcement of any legal right
Relating to environment and giving relief and compensation for damages to person and
property and for matter connected therewith or incidental thereto.

In the present case the environment clearance has granted without any due process it shall be
referred to NGT for its environment aspects.

The petitioner urges the court that to quash the clearance granted and to command the
ministry to consider the matter to environment clearance a fresh with all due procedure.

6.AIR 1954 SC592.

7.AIR 1987 SC 537.

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MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

In PARRY & CO. V. COMMERCIAL EMPLOYESS ASSOCATION8court held that

Mandamus is issued to enforce performance of public duties by authorities of all kinds,when
a tribulan omits to decide a matter which it is bound to decide , it can be commended to
determine the question which it has left undecided.

ARTICLE 227

Every high court shall have supridentence over all courts and tribunals throughout the
territories in relation to which it exercise jurisdiction.

Since the ministry of Env. And forest have granted the Env. Clearance by excersing
its quasi judicial powers to do so. The quasi-judicial function is questionable under Art.227 of
the constitution of india. The quasi-judicial functional are not performed under the proper
procedure. In relation to which is exercise jurisdiction is the ministry of Environment and
Forest have granted the environment clearance by exercising is Quasi judicial power to do so
the Quasi judicial function is questionable under article 227 of the Constitution of India is
Quasi judicial functions are not performed under the proper procedure the high court will
usually interfere under article 227

In Dahya lala v. Rasool Mohammad Abdul Rahim state of Maharashtra9 The high court will
usually interfere under article 227 if a court or Tribunal act arbitrary or declines to do what is
legally incumbent in a on it to do and thereby refuses to exercise jurisdiction vested in it by
law, or exceeds its jurisdiction or assumes erroneous jurisdiction or Tribunal act against
natural justice e or its finding are based on no evidence or or otherwise preserve or there is an
error of law Apparent on the face of the record .

8.AIR 1952 SC179.

9.AIR 1964 SC1320.

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MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

III.WHETHER THE HIGH COURT OF BRAMHA CAN INTERFARE IN ANY

POLICY DECISION TAKEN BY THE STATE OF BRAMHA?

it is humbly submitted by the petitioner in the instant matter High Court can interfere in
public policy decisions. Decisions taken by the state of Brahma because due to this policy
decisions large number of people affected it and policy is unjust and unfair for those villager
whose land acquired by the state of Brahma

The law providing deprevation of property under article 300A must be just fair and
reasonable Maneka Gandhi VS Union of India10.

The high court will usually interfere under article 227, if a court or Tribunal act arbitrary or
declines to do what is legally incumbent on it jurisdiction vasted in it. By law and its finding
are based on no evidence or otherwise preserve or there is any error of law Apparent on the
face of the record

There is not mentioned that Ministry of Environment and Forest give clearance although of
its essential requirement under both statutory and judicial pronounced law compensation and
Rehabilitation .So high court of Brahma can inrtfare in the policy decision. Narmada bachao
andolan vs State of MP11, in the present Case High Court of MP interfere for the
rehabilitation and compensation would be paid to person whose property has been acquired
and high courts said Policy was amended from time to time.

A.S.Sangwan vs Union of India12,a policy once formulated is not good for ever. It is perfectly
within the competence of the Union of India to the compulsion of circumstances and the
imperative of national considered.Through this judgement in respect of the facts of a
particular case the legal principles laid down in it are applicable in other similer situations
where policy decision are takenor changed by the government.

10.AIR1978SC597

11.AIR2000SC664

12.AIR1981SC1545

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 MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

IV.WHETHER THE DISPLACEMENT OF THE AGRICULTURIST FROM THE

AREA WHERE THE PROPOSED DAM IS TO BE CONSTRUCTED AMOUNT TO
VIOLATION OF ART.21 OF THE CONSTITUTION OF INDIVA?

It is most humbly submitted by the petitioner that the displacement of the agriculturist from
the place where the proposed dam is to be constructed.it is the violation of article 21 of the
Constitution Indiva .Art. 21 says “No person shall be deprived of his life and personal liberty
except according to procedure established by law.The most important words are procedure
established by law.The petitioner plea that due to displacement the agriculturist from area
they deprive their fundamental rights(Right to livelihood).

Olga tellis v. Bombay Municipal corporation13(popularly known as the pavement dwellers) a

five judges bench of the court has finally ruled that the word Life of Livelihood. Also the
court said “it does not mean merely that life cannot be extinguished or taken away .The right
to life is equally important for the right to livelihood because no person can live without the
means of livelihood.If the right to livlihoodis not treated as a part of the constitutional right to
life, the easiest way of depriving a person of his right to life would be to deprive him the
livelihood.

Any person who is deprived of his right to livelihood accept according to just and fair
procedure established by law can challenge the derivation of offending the right to life
conferred by article 21.The petitioner plea that due to displacement the large number of
people affected economically, socially and traditionally and there is no mention about the
rehabilitation in the policy.Sayyed Ratanbhai sayeed v.shirdi nagar panchayat14,the
appellants small scale shopkeeper in the vicinity ofinternally reserved Sai Baba at Shirdi,
who had been held in either incroachers nor trespass of public property let out to them by the
erstwhile Gram Panchayat but were complelled to clear in the public interest and for its
overall development resulting in their displacement as a compelling necessity,had to be
essentially rehabilitated or adequately compensationed.

13.AIR1986 SC180

14.AIR2016SC1042 pg.1059

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MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

Chameli Singh vs State of up15 it has been held that right to shelter is a fundamental right
under article 21 of the Constitution.If any organized locality the right to live aa a human
being is not ensured by meeting only the animal need of man and it is secured only when he
is assured of all facility to benefit himself .Right to live guaranteed in any i civilized society
implises the right to food, water, decent environment ,education ,medical care and shelter .

Section 2 of The right to fair compensation and transparency in land acquisition

rehabilitation and resettlement act 2013 says that compensation ,rehabilitation and
resettlement shall apply when the appropriate government acquires land for its own use hold
and control. Including the public undertaking and for public purpose article 21 requires the
following conditions to be fulfilled before a person is deprived of the property-(1) there must
be a valid law.

(2)The law must provide a procedure.

(3) The procedure must be just ,fair and reasonable.

(4)The law must satisfy the requirement of art.14 and 19 it must be reasonable .

In the present case the respondent has not follow the serial number two three and four step
because they have not give the any notice to petitioners and Section 21 of the land acquisition
act says that -notice to prior interest(The collector shall publish notice to be given at
convenient places .Governments intends to take possession of the land and the claim
compensation and Rehabilitation and resettlement for all interest in such land may be made
on him).

15.AIR1996 2SCC549

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MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

The procedure is not fair and reasonable because there is no mention about compensation and
Rehabilitation. The policy is also violate article 19 of the Constitution of Indiva. article 19-(
to freedom to reside and settle and also freedom of profession,occupation and business)is
violating by the construction of dam policy

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MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

V.WHETHER THE ENVIRONMENT CLEARANCE CERTIFICATE GRANTED BY

THE STATE IS CONTRARY TO THE PROVISIOND OF CONSTITUTION OF

BRAHMA?

Environment Clearance Certificate has been given to the Company on the ground that the

Government has an autority to do so ,Of course it is contrary to the provisions of

Constitution of Indiva.Art. 14 of the constitution bars discrimination and prohibits

discrimination arbitrary State action therefore ,which EC has baan given by MoEF appears

arbitrary exercise of power because the agriculturistbin the village are also notin favour of the

construction of the dams. We are a country governed by the rule of law and the absence of

arbitrary power,it is the basic requirement of Rule Of Law .Faridabad C.T.Scan centre v.

Health service.16

The EC certificate granted by the state amounts the violation of art 21 also because the

agriculturist in the village would be displaced from the land and that will definitely effect

their livelihood .

The defective public hearing procedure adopted by the State of Brahms amounts to violation

of right to know. In L.K.Kootwal v. State Of Rajasthan17, court held that right to know entitle

the citizen to receive full information about the recalcitrant state agencies and where those

government agencies ,the lack of it thereto, as far as given EC is concern amounts to violation

of art. 19(1)(a).

16.AIR1997SC3801

17.AIR1988RaJ2

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MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

VI.WHETHER THE DECISION TAKEN BY THE STATE OF BRAMHA TO

CONSTRUCT THE DAM DESERVES TO BE MAINTAINED OR SHOULD BE
QUASHED AND SET ASIDE?

It is humbly submitted to the hon’ble court that the decision taken by state of bramha to
construct dam should be quashed .The purpose of dams is store rainy water and it is well
known that the area is drought effecte and chances of rainis rare in such area .The no. of dams
to construct the rainy water it seems an imaginary project.The gov. with the help of Reliable
Industries wants to waste the public money and it is purely misuse of the resources all wll as
time.

The success of said dam is in suspension from the very bigining.However,it is a huge project
and will take a huge amount of money . It is not justifiable to ruin the land and livelihood of
the villagers.

To store the rainy water ,there are so many traditional and modern ways,which will surely not
affect the right to livelihood to the villagers.Displacement of villagers will affect them
mentally,pshychologically, socially and economically.They will lost their cultural heritage
.on being the walfare state it is the responsibility of state to make such policies in public
interest but industrial interest. The construction of dams is against to the provisions to the
constitution also .It will affect the life of the people and lead to the environment imbalance.

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MEMORANDUM ON BEHALF OF THE BEHALF OF PETITIONER

PRAYER

That therefore, it is most respectfully prayed that this Hon’ble Court may be pleased to:

A. Issue a Writ, or any other appropriate Order pursuant to Article 226 & Art 227 of the
Constitution of Indiva to declare the act of the state as un-constitutional and
colourable.
B. Issue a Writ, or any other appropriate order to stop the constructin of dams and pass
an order for return the land to the villagers.
C. Pass any such further Order(s) as this Hon’ble Court may deem fit in the interest of
Justice.

AND FOR THIS ACT OF KINDNESS YOUR HUMBLE PETITIONER AS IN

DUTY BOUND SHALL EVER PRAY

Counsel for the Petitioners

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