TEAM CODE: 23
IN THE HIGH COURT OF PASOORI,
INDICA. CIVIL JURISDICTION
CIVIL PETITION NO. OF 2023
UNDER SECTION
(S)226
IN THE MATTER OF:
PEOPLE FOR ENVIRONMENT(NGO)……………………….. PETITIONER
VERSUS
SHIAN TECH PVT. LTD(STPL)…………………….. DEFENDANT
BEFORE SUBMISSION TO THE HONORABLE HIGH COURT OF PASOORI
SESHADRIPURAM LAW COLLEGE
5TH NATIONAL LEVEL MOOT COURT COMPETITION (2023-2024)
1
MEMORIAL ON BEHALF OF PETITIONER
TABLE OF CONTENT
S.NO HEADING PAGE.NO
1. LIST OF ABBREVATIONS
2. INDEX OF AUTHORITIES
3. STATEMENT OF JURISDICTION
4. STATEMENT OF FACTS
5. STATEMENT OF ISSUES
6. SUMMARY OF ARGUMENTS
7. ARGUMENT ADVANCED
8. PRAYER
2
MEMORIAL ON BEHALF OF PETITIONER
LIST OF ABBREVIATIONS
AIR All India Reporter
CRPC Code of Criminal Procedure
Del Delhi High Court
Ed. Edition
IPC Indian Penal Code
SCJ Supreme Court Journal
Sec Section
v. Versus
govt. Government
Art. Article
Hon’ble Honorable
3
MEMORIAL ON BEHALF OF PETITIONE
INDEX OF AUTHORITIES
LIST OF CASES
State of Bihar v. Rani Sonabati Kumari (AIR 1955 SC 282)
State of Orissa v. Madan Gopal Rungta (AIR 1952 SC 12)
Union of India v. Major General Madan Lal Yadav (AIR 2012 SC 2299)
Sampurna Behura v. Union of India (AIR 1968 SC 1355)
Dr. Balbir Singh v. Municipal Corporation of Delhi (AIR 1997 SC 2275)
State of Madhya Pradesh v. Bhailal Bhai (AIR 1964 SC 1006)
State of Jharkhand v. Govind Singh (AIR 2012 SC 1594)
Punjab National Bank v. Employees' Union (AIR 1960 SC 160)
Dastak N.G.O. V/s. Synochem Organics Pvt. Ltd. & Ors
Ayush Garg v. UOI and ors
Tamil Nadu Pollution Control Board v. Sterlite Industries (2018)
Common Cause v. Union of India (2017)
Alembic Pharmaceuticals v. Rohit Prajapati and Ors (2020)
Vellore Citizens Welfare Forum v. Union of India (1996):
Indian Council for Enviro-Legal Action v. Union of India (1996):
T.N. Godavarman Thirumulpad v. Union of India (2006)
Alembic Pharmaceuticals Ltd. V. Rohit Prajapati (2011)
‘M.C. Mehta v. Union of India’ (1986)
‘Subhash Kumar v. State of Bihar’ (1991)
WEBSITES REFERRED
www.manupatra.com
www.indiankanoon.com
www.highcourtcases.com
www.scconline.com www.livelaw.in
www.supremecourtcases.com
www.supremecourtcaselaw.com
BOOKS REFERRED
P.S.A PILLAI: CRIMAINAL LAW, 11TH EDN…, 2012
K.D GAUR: THE INDIAN PENAL CODE, 4TH EDN…,2009
RATANLAL AND DHIRAJLAL: THE INDIAN PENAL CODE 32ND EDN...,2010
R.C. NIGAM: PRINCIPLES OF THE LAW OF CRIME
DR. AVTAR SINGH: PRINCIPLES OF THE LAW OF EVIDENCE
BATUK LAL: THE LAW OF EVIDENCE
STATUTORY STATUTE
THE CONSTITUTION OF INDIA, 1950
THE ENVIRONMENTAL ACT,1986
THE CIVIL PROCEDURAL CODE
DICTIONARIES REFERRED
P. RAMANATHAAIYAR’S CONCISE LAW DICTIONARY (4TH ED. 2012) NEW DELHI:
LEXIS NEXIS BUTTERWORTHS WADHWA
WHARTON’S LAW LEXISON( 15TH ED. 2011) NEW DELHI: UNIVERSAL LAW
PUBLISHING CO.PVT. LTD.
STATEMENT OF JURISDICTION
THE RESPONDENT HUMBLY SUBMITS TO THE JURISDICTIONAS INVOKED BY THE
PETITINER UNDERSECTION UNDER ARTICLE 226 OF THE INDIAN CONSITUTION1 IS
MAINTAINABLE SINCE THERE IS NO VOILATION OF THE FUNDAMENTAL RIGHTS AND
THE DEFENDANT HAS FOLLOWED ALL THE NORMS OF THE IN ORDER TO COMMENCE
ITS OPERATIONS.
1 Article 226 is enshrined under Part V of the Indian constitution. The main objective of the article 226 is to provide an
inexpensive and quick remedy to an aggrieved person. It empowers the High Court to enforce any basic fundamental rights. If
a person’s fundamental rights are infringed then, he can approach to High Court under Article 226 for enforcement of his rights
by issuing writs or orders. The power under Art.226 cannot be curtailed by legislation . The power conferred under Art.226 on
the high court is wider than the power conferred on the supreme court. Because when the administrative action is declared as
final by a statute, it can still be challenged under Article 226.
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MEMORIAL ON BEHALF OF PETITIONER
STATEMENT OF
FACTS
• In the month of August 2022, an NGO named People for the Environment (PFE) documented
a writ request at the High Court of Pasoori that a manufacturing plant 'Shian Tech Pvt. Ltd.'
• (STPL) has been completing business since the year 2020 without getting the compulsory
'Natural Leeway' (EC) under the Natural Security Act, of 1986.
• STPL supplicated under the steady gaze of the Hon'ble High Court to promptly pass requests
to stop the activities of STPL. STPL has kept up that it is optional for them to get ecological
freedom and they have not been engaged in corrupting the climate, thus they ought to be
permitted to proceed with their tasks.
• PFE has kept up with that in environmental jurisprudence Precautionary Principle applies
and hence causing pollution is immaterial and Environmental Clearance is mandatory.
• High Court of Pasoori considered the make a difference to be of grave significance and posted
it for hearing from the primary seven-day stretch of September 2022.
• The communication of the Pasoori State Pollution Control Board (PSPCB) to STPL has made
it clear that Environmental Clearance is not mandatory to operate the factory.
• A certificate of commencement of business is sufficient between the bodies involved.
• PSPCB carried out an enquiry and found that STPL had not caused any environmental
pollution.
• The Government of Indica budget report notes that STPL had made substantial
contribution towards revenue generation and foreign exchange reserves.
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STATEMENT OF ISSUES
Issue 1: Whether the petition filed by the NGO is maintainable?
Issue 2: Whether obtaining of Environmental clearance is mandatory under
the Environment
Protection Act, 1986?
Issue 3: Whether the "freedom of trade" of STPL is violated if the
operations of the factory is stopped?
Issue 4: Does the continued operation of STPL constitute a violation of right to
environment?
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SUMMARY OF ARGUMENTS
ISSUE 1: It is humbly submitted before this honorable court that the petition filed by the NGO is
maintainable as the defendant has already got the clearance from the Pasoori State Pollution
Control Board (PSPCB) to defendant (STPL) has made it clear that Environmental Clearance is not
mandatory to operate the factory. Also the defendant is following the environmental principles that
was the pillars of the Environmental Protection Act, 1986. Here since there is no violation
of fundamental rights by the party, therefore the case does not have any standing in the honorable
court and should not be entertained further.
Issue 2: It is modestly submitted under the steady gaze of this fair court that it is compulsory to take
clearance from the environmental protection board required under the Environmental
Protection Act, 1986 since the litigant isn't hampering the climate in the way and being a mindful
resident following every one of the standards of the demonstration with cautiously going to lengths to
save the climate, take preparatory messages and going to every one of the defensive lengths so it
doesn't hamper the climate in future as well.
Issue 3: it is humbly submitted before this honorable court that the freedom of trade is clearly not
violated if there is any kind of restriction implied on the operation of the factory since the petition is
filed on the motive not only to check the operational work but also to stop the activities of the factory.
This shows the clear violation of article 19(1)(g) of the constitution of India that clearly shows a
hampering of the fundamental rights of the defendants.
Issue 4: it is humbly submitted that is the continued operation of STPL does constitute a violation of
right to environment under the Environmental protection act nor the violation of fundamental right
of the people. Since the defendant is following all the principles laid under the environmental law
hence there is now shadow of light to show that there is a violation of fundamental right of the people.
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ARGUMENTS ADVANCED
ISSUE: I
Whether the petition filed by the NGO is
maintainable?
It is humbly submitted that the present writ petition (PIL) filed by the NGO is maintainable
under Art-226 of the Indian constitution2.
Article 226 states that -
Article 226 in The Constitution Of India 1949
It is submitted that Under Article 21, which protects the right to life and personal freedom, the
Indian Constitution recognizes the right to a healthy environment as a basic right. In accordance
with Articles 48A and 51A(g) of the Constitution, the State is also required to safeguard
and enhance the environment.
The Petitioner herein has filed a PIL. Any individual, organization, or group may petition the
court on behalf of the general public or to safeguard the public interest through a process known as
public interest litigation. The promotion of environmental protection and conservation in India has
been greatly helped by PIL in environmental law.
Holding public authorities accountable for their environmental protection-related activities or
inactions, PIL fosters openness and accountability in governance. PIL in environmental law has also
aided in raising awareness of environmental challenges and rights among the general public. It has
given individuals the authority to take legal action against environmental infractions.
For the purpose of upholding fundamental rights as well as for any other reason, each High Court
has the authority to issue any person within its jurisdiction with directives, orders, or writs,
including writs of habeas corpus, mandamus, prohibition, quo warranto, and certiorari. Any High
Court with jurisdiction over the territories where the cause of action, in whole or in part, arises for
the exercise of such power may also exercise this power, even if that court's jurisdiction does not
extend to those territories or where the person's residence is.
If a Fundamental right is violated, a writ petition may be sent to the Supreme Court under Article
32 and the High Court under Article 226. Since it has been established that the right to a
healthy.
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Issue -2
Whether obtaining of Environmental clearance is mandatory under the Environment
Protection
Act, 1986?
It is humbly submitted that Environmental clearance is mandatory under the Environment
Protection Act,1986.
The clearance process typically involves conducting an Environmental Impact Assessment study,
which assesses the potential impacts of the project on the environment and local communities. The
study considers factors such as air and water pollution, ecological impacts, socio-economic effects,
etc. Based on the findings of the study, the project may be granted environmental clearance
with or without certain conditions or may be rejected if it poses significant
environmental risks.
Under the Environment Protection Act,1986 the central government has the power to take
measures to protect and improve the environment, including prescribing standards for emissions
and discharges, regulating hazardous substances, and preventing environmental pollution. The
Act also empowers the central government to require environmental clearances for certain
projects or activities that have the potential to cause significant environmental impacts.
The Central Government issued an Environmental Impact Assessment (EIA) Notification dated
January 27, 1994, herein marked as ANNEXURE - A directing that no new project or activity listed
in Schedule I to the said notification, nor any expansion or modernization of any such
activity, shall be undertaken in any part of India unless the Central Government has granted it EC
in accordance with the procedures outlined in the said No.
12
The Central Government once more issued a notification on September 14, 2006, known as
notification S.O. 1533 (E), herein marked as ANNEXURE- B which required prior
environmental clearance from the Central Government or, if applicable, by the State-Level
Environment Assessment Authority, legally established by the Central Government. This
notification said that there would only be a maximum of four steps in the environmental
clearance procedure for new projects, some of which might not apply in specific circumstances.
The steps were screening, scoping, public consultation, evaluation, and screening.
Indian courts, including the National Green Tribunal (NGT) and the Supreme Court, have issued
judgments on various aspects of environmental clearance certificates. These judgments have
addressed issues like the validity of clearances, the need for public participation, the enforcement
of conditions, and the review of clearances for projects that have already been granted.
When we consider the case of Dastak N.G.O. V/s. Synochem Organics Pvt. Ltd. & Ors. which was
presented in front of the NGT is a specialized body equipped with the necessary expertise to handle
environmental disputes involving multi-disciplinary issues held
“We thus hold that without prior EC the units cannot be allowed to operate. The State has no power
to exempt the requirement of prior EC or to allow the units to function without EC on payment of
compensation." The 5- Judge Division Bench of the Tribunal gave its final Order on June 3, 2021.
The Tribunal held that the units cannot be allowed to operate without prior EC and also the State
acted ‘ultra vires’ (out of authority) to permit the units to operate without prior EC.
The same view were taken in the case of Ayush Garg v. UOI and ors
In the case of Goa Foundation v. Union of India (2014)3 The NGT reaffirmed the requirement of
mandatory environmental clearance for projects that have the potential to cause significant
environmental damage. The tribunal held that environmental clearance cannot be granted if there is
a likelihood of irreversible damage to the environment, emphasizing the precautionary
approach.
Tamil Nadu Pollution Control Board v. Sterlite Industries4 the NGT held that environmental
clearance is mandatory for industries and projects that fall within the ambit of the EIA
3(2014) 6 SCC 590.
4 AIR 2019 SC 1074.
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Notification, 2006. The tribunal set aside the environmental clearance granted to Sterlite
Industries for its copper smelting plant, citing environmental violations and the potential harm to
public health and the environment.
It is submitted that when we rely upon the judgment of apex court Common Cause v. Union of
India (2017)5 “The Court held that granting an ex-post-facto environmental clearance could be
harmful and may cause irreparable degradation of the environment. As per the Supreme Court, the
concept of an ex-post-facto or a retrospective EC is totally alien to environmental
jurisprudence, including the EIA 1994 and EIA 2006”.
In the case of Alembic Pharmaceuticals v. Rohit Prajapati and Ors6
“The Court was of the decision that ‘ex post facto’ Environmental Clearance (EC) is against the
basic principles of environmental jurisprudence”.
It is humbly submitted that the Environment clearance as per the environmental jurisprudence is a
mandatory to obtain before the commencement of the operations. It is also to be noted that the state
acts as a nodal agency and has no authority with regard to exempting any such statutory requirement.
Issue 3:
Whether freedom of trade of the respondent is violated if the operations are stopped?
It is humbly submitted that in order to answer the question of the “freedom of trade” of Shian Tech
Pvt. Ltd. (STPL) is violated if the operations of the factory are stopped due to the absence of
environmental clearance raises complex considerations regarding the interplay between
economic liberties and environmental regulations. To address this issue, we must carefully
examine the legal framework, constitutional principles, and the balancing of competing interests.
The freedom of trade, recognized as a fundamental right, plays a vital role in fostering economic
growth and individual enterprise. In the Indian context, Article 19(1)(g) of the Constitution
guarantees the right to practice any profession, occupation, or trade. However, it is important to note
that this right is not absolute and can be subject to reasonable restrictions imposed in the
5
(2017)9SCC499.
6[2020]10SCR677.
14
interest of the general public.
In the case at hand, STPL asserts that its freedom of trade is infringed upon if the operations of the
factory are halted due to the absence of environmental clearance. STPL contends that it has not
caused any environmental degradation and argues for the continuation of its operations
without the need for environmental clearance.
To address this issue, we must consider the legal framework governing environmental protection.
The Environmental Protection Act, 1986, establishes the requirement of obtaining environmental
clearance for activities that have the potential to cause environmental pollution or degradation. This
legislation aims to safeguard the environment and promote sustainable development.
The court’s role is to strike a delicate balance between economic interests and environmental
protection. It must assess the potential environmental impact of STPL’s operations conducted
without the necessary environmental clearance. Factors such as the nature and scale of the
factory’s activities, the sensitivity of the surrounding environment, and the potential harm to
public health must be taken into account.
If the court finds that STPL’s operations pose a significant risk of environmental harm, it may
conclude that stopping or restricting the factory’s operations is a reasonable restriction in
the interest of protecting the environment. In such a scenario, the limitation on STPL’s freedom of
trade would be justifiable as it serves to prevent potential damage to the environment and the
well-being of the community. However, the court should also consider alternative approaches to
striking a balance between economic interests and environmental protection. It may explore
options such as directing STPL to obtain the necessary environmental clearance, implement
pollution control measures, or adopt sustainable practices. This approach would allow STPL to
continue its trade while ensuring compliance with environmental regulations and minimizing
harm to the environment.
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It is important to note that environmental protection is essential for the long-term viability
of businesses and the overall well-being of society. Neglecting environmental concerns can lead to
adverse consequences such as ecological degradation, health hazards, and socio-economic
disruptions. By enforcing environmental regulations and imposing reasonable restrictions, the
court upholds the principles of sustainable development and ensures the preservation of a clean and
healthy environment for present and future generations.
While “freedom of trade” is an important aspect of economic liberties, it is not an absolute right.
The court’s task is to carefully balance the competing interests of economic growth and
environmental protection. By considering the potential environmental impact and exploring
alternative solutions, the court can ensure that STPL’s operations align with environmental
regulations, thereby safeguarding the environment and the broader interests of society.
It is submitted that the judicial decrees have made it easier to understand and we would like to rely
upon a few judgments:
Vellore Citizens Welfare Forum v. Union of India (1996)7
In this landmark case, the Supreme Court of India emphasized that the right to a clean
environment is a fundamental right under Article 21 of the Constitution. The court recognized that
any activity causing environmental degradation can be challenged, and environmental
protection should be given priority over economic considerations. This case solidified the
principle that environmental preservation is of paramount importance.
Indian Council for Enviro-Legal Action v. Union of India (1996)8:
In this case, the Supreme Court recognized the concept of sustainable development and the
precautionary principle. It held that even in the absence of conclusive scientific evidence,
preventive measures should be taken to protect the environment. The court emphasized that
economic activities must be carried out in an environmentally sustainable manner, and the
polluter must bear the cost of pollution control.
7 AIR 1996 SC 2715.
8 AIR 1996 SC 1446.
16
T.N. Godavarman Thirumulpad v. Union of India (2006)9:
In this case, the Supreme Court highlighted the importance of environmental clearances for
industrial projects. It held that the precautionary principle should be applied, and projects must
obtain necessary clearances from the relevant authorities before commencing operations. The
court reaffirmed that the right to a clean environment is a fundamental right and that economic
development must be in harmony with environmental protection.
Alembic Pharmaceuticals Ltd. V. Rohit Prajapati (2011)10:
In this case, the Gujarat High Court addressed the issue of industrial pollution. The court
emphasized that the freedom of trade cannot be absolute and must be balanced with the
protection of the environment and public health. It held that industries have a constitutional duty to
comply with environmental laws and regulations, and any violation of such laws can result in the
closure of the factory.
Issue -4:
Does the continued operation of STPL constitute a violation of right to environment?
It is submitted that the Violation of the right to a clean environment is a significant concern in the
case involving STPL’s operation without obtaining environmental clearance. The court must
carefully address this issue by considering the potential environmental impacts of STPL’s
activities and assessing whether they amount to a violation of the fundamental right to a clean
environment.
To determine the violation of the right to a clean environment, the court should examine
the environmental protection laws and regulations in place. The Environmental Protection Act,
1986, provides a framework for safeguarding the environment and ensuring sustainable
development. It imposes the requirement of obtaining environmental clearance for activities
that have the potential to cause environmental pollution or degradation.
In the present case, the petitioner, People for Environment (PFE), contends that STPL’s
operation without obtaining environmental clearance violates the right to a clean environment.
9
AIR2006SC1774
10
Ibid, at 14.
17
The court must consider the arguments put forth by PFE and evaluate the evidence presented.
This may include examining reports from the State Pollution Control Board and conducting an
environmental impact assessment of STPL’s operations.
If it is found that STPL’s activities have resulted in environmental pollution or degradation, the
court may conclude that the right to a clean environment has been violated. The Supreme Court’s
judgment in ‘Vellore Citizens Welfare Forum v. Union of India’ (1996) established that the right to
a clean environment is an integral part of the right to life under Article 21 of the Constitution. The
court recognized that protecting the environment is essential for the well-being and quality of life
of citizens.
In addressing the violation of the right to a clean environment, the court should consider
the precautionary principle. This principle, recognized in environmental jurisprudence, emphasizes
taking preventive measures to avoid environmental harm, even in the absence of conclusive
scientific evidence. Applying this principle, the court may prioritize the protection of the
environment and public health over economic considerations. However, it is crucial for the court to
strike a balance between environmental protection and economic interests. The court can
explore remedies that ensure compliance with environmental regulations while minimizing
adverse effects on STPL’s operations. These remedies may include directing STPL to obtain the
necessary environmental clearance, implementing mitigation measures, and closely monitoring the
company’s future activities to ensure compliance with environmental standards.
By addressing the issue of the violation of the right to a clean environment, the court can
reinforce the importance of environmental protection and uphold citizens’ fundamental rights.
This will contribute to sustainable development and the overall well-being of society.
It is submitted that in order to support we have relied upon various judicial decision:
‘Vellore Citizens Welfare Forum v. Union of India’ (1996)11:
This landmark case by the Supreme Court of India emphasized the fundamental right to a clean
environment under Article 21 of the Constitution. The court held that industries causing
environmental pollution or degradation could be challenged, and the right to a clean environment
11
Ibid, at 16.
18
was deemed essential for the enjoyment of life and personal liberty.
Indian Council for Enviro-Legal Action v. Union of India (1996)12:
In this case, the Supreme Court recognized the importance of environmental protection and
declared that the right to a clean environment was a part of the right to life under Article 21 of the
Constitution. The court emphasized that any activity causing environmental degradation could
be subject to legal action.
M.C. Mehta v. Union of India (1986)13:
In this case, the Supreme Court dealt with the issue of pollution caused by hazardous industries.
The court reiterated that the right to a clean environment was a fundamental right of every
citizen. It directed the closure of certain industries and outlined strict guidelines to prevent
pollution and protect the environment.
Subhash Kumar v. State of Bihar (1991)14:
This case involved the issue of pollution in hospitals. The Supreme Court highlighted that the
right to a clean environment was inherent in the right to life under Article 21. The court
emphasized the duty of the state to protect and improve the environment for the well-being of the
citizens. environment is an implicit fundamental right, writ petitions are frequently redirected to
environmental matters. In environmental concerns, the writs of Mandamus, Certiorari, and
Prohibition are typically used.
12
Ibid, at 16.
13
1987 AIR 1086.
14
1991 AIR 420.
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PRAYER
In the light of issued raised, Argument advances and authorities cited, may this Hon’ble court be
pleased:
1) That the petition filed by the NGO is maintainable.
2) That obtaining of Environmental clearance is mandatory under the Environment Protection
Act, 1986, and all the operations related to the factory should be terminated till they comply
with the same. Lastly, there is no violation of trade under Article 19(1)(g) of the Indian
Constitution,
And
pass such order as this Hon’ble court may deemed fit and proper.
All of which is respectfully submitted and for this Respondent as a duty bound, shall humbly pray.
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