IN THE HONBLE COURT OF THE HIGH COURT

MATTER ENVIRONMENTAL LAW

GANGA BACHAO SANGATHAN.(Petitioner) Versus

THE AMBHUJA COLLEGE OF LAW.(Respondent)

(JAN-MAY 2015)

MOST RESPECTFULLY SUBMITTED

Memorial from the side of..... (Petitioner) Moot No. ...1 Submitted by..TWINKLE CHOPRA,573

TABLE OF CONTENTS

TABLE OF ABBREVATION..3INDEX OF AUTHORITIES ..................................4-6 STATUTE REFFERED.4 INTERNATIONAL TREATIES AND CONVENTION AND STATISTICALRECORD. 4 BOOKS REFFERED..4 ARTICLE REFFERED...4 CASES REFEFERED5-6

STATEMEMT OF JURISDICATION.7STATEMENT OF FACTS8STATEMENT OF ISSUES..9SUMMARY OF ARGUMENTS.10ARGUMENTS ADVANCED11-161. THAT THE PERPETUAL INJUNCTION BE GRANTED FOR THE CONSTRUCTION OF THE PROPOSED HOSTELS AND BUILDING ON THE BANK OF GANGA

1.1 THAT THERE IS VIOLATION OF ARTICLE 2111-14

1.2 NON COMPLAINCE OF DOCTRINE OF SUSTIANABLE DEVELOPMENT.15-16PRAYER.17

TABLE OF ABBREVATION

A.I.R All India Reporter Anr. Another A.P Andhra Pradesh Art. Article Del Delhi Honble Honorable HC High Court MLJ Madras Law Journal PIL Public Interest Litigation P. pages Pvt. Ltd private limited P&H Punjab and Haryana SC Supreme Court SCC Supreme Court Cases Supp. Supplementary Volume U.P Uttar Pradesh U.O.I Union of India & And V. Versus

INDEX OF AUTHORITIES

STATUTE REFFERED1. Constitution of India, 19502. Environment (Protection) Act,1986

INTERNATIONAL TREATIES AND CONVENTION AND STATISTICAL RECORD1. Rio Declaration, 19922. Pollution assessment: River Ganga, Central Pollution Control Board, July 2013

BOOKS REFFERED1. Environment Law, ed., 2013,Dr. P.S Jaswal2. Environment Law case book, ed., 2008,P. Leelakrishnan3. Environment Law, ed., 2010, Dr. H.N Tiwari 4. Introduction to environmental law, ed., 2005, S. Shanthakumar 5. Environmental Law and Policy in India, ed.,2004, Divan Rosencranz6. Indian Constitutional Law, ed., 2006, M.P Jain

ARTICLE REFFERED 1. Ecological Management of rivers in India: A long road Ahead, Pareenita & Himanshu thakkar2. Some Legal Cases on Ganga River Pollution, A.K Singla3. Role of Indian Judiciary in addressing air and water pollution, J. Hima Kholi

CASES REFFERED1. Ganga Pollution v.s State of U.P and others, (PIL) No.- 4003 of 20062. Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 18443. Shantisar Builders v. Narayanan Khimalal Totamen, AIR 1990 SC 6304. Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.5. M.C Mehta v. U.O.I, (2004) 12 SCC 1186. Deepak Grih Udyog v. State of Haryana AIR 1996 P&H 177 7. Ishwar v. State of Haryana, AIR 1996 P.& H 1778. Surinder Kumar v. State of Bihar, 1991 Supp. (2) SCC 628 9. M.C Mehta v. U.O.I, 1992 Supp. (2) SCC 85 10. MC Mehta v. Union of India, AIR 1987 SC 108611. Hinch Lal Tiwari vs. Kamala Devi , (2001) 6 SCC 49612. K.C Malotra v. state, AIR 1994 M.P 48 13. Fertilizers and Chemicals Travancore Ltd. Employees Assn. v. Law Society of India (2004) 4 SCC 420; 14. Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 64715. State of Orissa v. Government of India, (2009) 5 SCC 492 at 50516. Virender Gaur v. State of Haryana, (1995) 2 SCC 57717. S. Jagnatha v. U.O.I, AIR 1997 SC 734; 18. M.C Mehta v. Kamalnath,(1997) 1 SCC 38819. N. D. Jayal v. Union of India, AIR 2004 SC 867 (Supp), p 878; 2007 (6) MLJ 813.20. Susetha v. state of Tamil Nadu, AIR 2006 SC 2893 p. 2896 21.Bombay Dyeing and Manufacturing Co. Ltd v. Bombay Environmental Action Group, AIR 2006 SC 1489 22. Banvasi Seva Ashram v. State of Uttar Pradesh, 1987 AIR 374. 23. Indian Council for Enviro-Legal Action v. Union of India, 1996 (5) SCC 28124. Goa Foundation v. Diksha Holdings Pvt Ltd, AIR 2001 SC 184 25. M.C Mehta v. U.O.I, (2002) 4 SCC 35626. Damodar Rao v. The Special Officer, Municipal Corporation of Hyderabad, AIR 1987 AP 17127. Rural Litigation and Entitlement Kendra v. State Of U.P, A.I.R 1985 SC 65228. K.M Chinnappa v. Union of India, AIR 2003 SC 72429. Indian Council for Enviro-legal Action v. U.O.I, (1966) 5 SCC 281

STATEMENT OF JURISDICTION

The counsel for the petitioner has approached honble High Court under Article 226 of the Constitution of India, 1949.

This Article read as:

Power of High Courts to issue certain writs (1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

STATEMENT OF FACTS

The Ambhuja College of Law was inaugurated on the 10th of feb, 2002 situated on the bank of the Ganga River.

Management decided to start a new course for which additional land of 23 acres was granted it at much lower cost because of its influential management.

The land that was allotted was supposed to be a recreational park for society children of the locality.

As the college proposed to make hostels and buildings on the acquired land, the members of the Ganga Bachao Sangathan, petitioner, were up in arms against this and filed petition for the same before the Honble court.

ISSUE RAISED

ISSUE 1: WHETHER PERPETUAL INJUNCTION BE GRANTED FOR THE CONSTRUCTION OF THE PROPOSED HOSTELS AND BUILDING ON THE BANK OF GANGA?1.1 THAT THERE IS VIOLATION OF ARTICLE 21

1.2 THAT THERE IS NON COMPLAINCE OF DOCTRINE OF SUSTIANABLE DEVELOPMENT

SUMMARY OF ARGUMENTS

1.1: WHETHER PERPETUAL INJUNCTION BE GRANTED FOR THE CONSTRUCTION OF THE PROPOSED HOSTELS AND BUILDING ON THE BANK OF GANGA

The petitioner who is an active social worker has filed this petition under Article 226 before the honble court inter alia for the issue of a writ/order/direction in the nature of mandamus to the respondent for restraining the construction of proposed hostels and building on the bank of Ganga. The construction of such hostels and building will lead to violation of fundamental rights of the society as a whole and also it is not in consonance with doctrine of sustainable development.

ARGUMENT ADVANCED

1. THAT THE PERPETUAL INJUNCTION BE GRANTED FOR THE CONSTRUCTION OF THE PROPOSED HOSTELS AND BUILDING ON THE BANK OF GANGA

From the Himalayas to the plains, rampant growth is turning the Ganges into a toxic sewer. It is not too late to put things right[footnoteRef:2] [2: Ganga Pollution v.s State of U.P and others, (PIL) No.- 4003 of 2006]

This is public interest litigation. The petitioner who is an active social worker has filed this petition under Article 226 before the honble court inter alia for the issue of a writ/order/direction in the nature of mandamus to the respondent for restraining the construction of proposed hostels and building on the bank of Ganga. The construction of such hostels and building will lead to violation of fundamental rights of the society as a whole and therefore, the honble High court is appropriate forum for the enforcement of the rights.

1.1 That there will be Violation of Article 21

Article 21[footnoteRef:3] of the Constitution envisages a right to life and personal liberty of a person. The word Life under Article 21 means a quality of life[footnoteRef:4] which includes right to food, and reasonable accommodation to live in[footnoteRef:5] and the right to the wholesome environment[footnoteRef:6]. 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 the life[footnoteRef:7]. Right to carry occupation under Article 19 (1) (g)[footnoteRef:8] is subjected to right to environment[footnoteRef:9] [3: Article 21 Constitution of India, 1949- No person shall be deprivedof his life or personal liberty except according toprocedure established by law] [4: Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844] [5: Shantisar Builders v. Narayanan Khimalal Totamen, AIR 1990 SC 630] [6: Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.; See Also M.C Mehta v. U.O.I, (2004) 12 SCC 118; Deepak Grih Udyog v. State of Haryana AIR 1996 P&H 177; Ishwar v. State of Haryana, AIR 1996 P.& H 177, Surinder Kumar v. State of Bihar, 1991 Supp. (2) SCC 628, M.C Mehta v. U.O.I, 1992 Supp. (2) SCC 85 ] [7: MC Mehta v. Union of India, AIR 1987 SC 1086] [8: Article 19 (1) (g) Constitution of India 1949- to practice any profession or to carry any occupation , trade and business ] [9: MC Mehta v. Union of India, AIR 1988 SC 1037; Ivory Traders and Manufacturer Association v. Union of India, AIR 1997 Del 267, p 293 ]

Also, it is provided under the Directive Principles of the Indian Constitution as contained in Article 48A[footnoteRef:10] enjoins upon the state to endeavour to protect and improve the environment and to safeguard the forests and wild life of the country and Fundamental Duties as enshrined under Article 51A(g)[footnoteRef:11] requires every citizen to protect and improve the natural environment, including forests, lakes, rivers and wild life, and to have compassion for living creatures. [10: Article 48 A Constitution of India 1949- 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] [11: Article 51A(g) Constitution of India 1949- to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures]

Water is the most important element of the nature[footnoteRef:12]. In State of Orissa v. Government of India[footnoteRef:13] it was held Right to life guaranteed in any civilized society, inter alia right to water and descent enivronment. [12: Hinch Lal Tiwari vs. Kamala Devi , (2001) 6 SCC 496 -recognized that tanks, ponds, amongst others, are natures bounty which maintains the delicate ecological balance and they need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Art. 21 of the Constitution] [13: (2009) 5 SCC 492 at 505 ]

The honble Supreme Court in the case of Virender Gaur v. State of Haryana[footnoteRef:14] observed: [14: (1995) 2 SCC 577; See Also K.C Malotra v. state, AIR 1994 M.P 48; Fertilizers and Chemicals Travancore Ltd. Employees Assn. v. Law Society of India (2004) 4 SCC 420; Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647]

Enjoyment of life and its attainment including their right to live with the human dignity encompasses within its ambit, the protection and preservation of the environment , ecological balance free from pollution of water and air , sanitation without which the life cannot be enjoyed Environmental, ecological, air, water pollution etc. should be regarded as amounting to violation of Article 21. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a human and healthy environment.

In the instant case, the respondent acquired additional land on the bank of ganga river of about 23 acres on which construction of the proposed hostels and building were announced. Though the decision to introduce new course is positive, however this will deprive the fundamental right of the society as a whole because construction on the bank a) will lead to bank erosion having catastrophe effects eg. Floods etc. ,b) River bank failure can be caused when the gravitational force exceeds which holds the sediment together, c) concrete driveways runoff onto the river bank will weaken the soil strength, d) construction if completed will lead to water pollution due to sewage and domestic waste which is highly contaminated with infectious agents for typhoid, cholera, dysentery and various skin diseases, e) it will constitute callous interference with natural flow of river ganga resulting in the degradation of the enivornment, f) will effect the local flaura and fauna. According to the Central Pollution Control Board[footnoteRef:15], 2723 millions litre of sewage is generated by 50 Cities located along with the ganga river, which adds upto to over 85% of river pollution load resulting to irreparable loss to the ecology and violating fundamental right of present generations as well as also future. [15: Pollution assessment: River Ganga, Central Pollution Control Board, July 2013]

The water resources are over-exhausted, ponds, tanks are filled up for real estate development, ground water depletion is taking place in an alarming manner, the rivers are choked and this is resulting not only in exhaustion of whatever little water we have but also destruction of biodiversity and flood plains which is capable of recharging such sources. There is thus a permanent and irreversible damage happening. The effort, therefore, should be to urgently identify all the sources of conservation of water and take action to save them from any further damage and make all efforts to restore / rejuvenate them. If this not done the situation will soon come when water will become extremely scarce and with growing population it will create danger to the survival of mankind. The development vis--vis protection of water resources has also to be thought from this angle: on one hand with criminal negligence and unpardonable acts it is lost forever and on the other hand there is an alternative. But even if there is no such option it is in the interest of survival of life that such development should be given up.

The honble supreme court in reference to the case Ganga Pollution v. State of U.P[footnoteRef:16] and others dismissed the special leave petition filed by the Allahabad development authority and held that no construction shall be permitted within 500 metres from the highest flood level. [16: Supranote1, decided on 2013 ]

Also in S. Jaganath v. U.O.I [footnoteRef:17]- in the instant case honble Supreme Court ordered the closure of Shrimp Culture Industries around Chilka and Pulikat lakes, adjacent to the East Coast causing salinity of the soil and the drinking water. The densely populated Ganga basin is inhabited by 37 per cent of India's population. The entire Ganga basin system effectively drains eight states of India. About 47 per cent of the total irrigated area in India is located in the Ganga basin alone. Thus, construction of the hostels and building will not only lead to harmful effect in this particular basin but will also effect society at large. [17: AIR 1997 SC 734; See also M.C Mehta v. Kamalnath,(1997) 1 SCC 388- the Supreme court held that the span Motel interfered into the natural flow of the water . Hence, the Motel was directed to pay compensation by the way of cost for the restitution of the environment and ecology of the area by applying polluter pay principle.]

Thus it is most humbly submitted before the honble court that the construction will infringe the right to clean water and therefore perpetual injunction be granted for proposed construction on the bank of ganga.

1.2 Non Compliance of doctrine of sustainable development

It is further submitted that Environment Protection Act, 1986 aims at sustainable development.[footnoteRef:18] Doctrine of Sustainable Development is not an empty slogan; but must be viewed in a pragmatic manner.[footnoteRef:19]It is a principle which is recognized not only at national level but it is international phenomena enshrined under Principle 3 and Principle 4 of the Rio Declaration 1992[footnoteRef:20] which demands delicate balance between environmental values and developmental needs.[footnoteRef:21] The Supreme Court observed that environmental statutes were enacted to ensure a good quality of life for unborn generations since it is they who must bear the brunt of ecological degradation.[footnoteRef:22] [18: N. D. Jayal v. Union of India, AIR 2004 SC 867 (Supp), p 878; 2007 (6) MLJ 813.] [19: Susetha v. state of Tamil Nadu, AIR 2006 SC 2893 p. 2896] [20: Rio Declaration 1992, Principle 3 the right to development must be fulfilled so as to equitably meet development and environmental needs of present and of future generations; Principle 4 in order to achieve sustainable development, environmental protection shall constitute integral part of the development process and cannot be considered in isolation from it] [21: Bombay Dyeing and Manufacturing Co. Ltd v. Bombay Environmental Action Group, AIR 2006 SC 1489; Banvasi Seva Ashram v. State of Uttar Pradesh, 1987 AIR 374. ] [22: Indian Council for Enviro-Legal Action v. Union of India, 1996 (5) SCC 281; See Also Goa Foundation v. Diksha Holdings Pvt Ltd, AIR 2001 SC 184; M.C Mehta v. U.O.I, (2002) 4 SCC 356- the SC emphasized the significance of the principle of sustainable development and held sustainable ]

It is humbly submitted that protection of life under Article 21 includes the principle of sustainable development and it is sine qua non for maintenance of symbolic balance between rights to development and environment.[footnoteRef:23] Therefore it would be reasonable to hold that the enjoyment of life and its attainment and fulfillment guaranteed by Article 21[footnoteRef:24] of the Constitution as it embraces the protection and preservation of natures gifts without which life cannot be enjoyed.[footnoteRef:25] In N. D. Jayal v. Union of India,[footnoteRef:26] the honble SC held Sustainable development to be a fundamental right in order to justify construction of a dam as a symbol of wholesome development. [23: Supra note 17] [24: Art. 21 of the Constitution of India, 1950] [25: T. Damodar Rao v. The Special Officer, Municipal Corporation of Hyderabad, AIR 1987 AP 171 ] [26: Id]

The honble SC in Rural Litigation and Entitlement Kendra v. State Of U.P[footnoteRef:27] observed: [27: AIR 1985 SC 652]

We are not oblivious of the fact that the natural resources have got to be tapped for the purposes of the social development but one cannot forget at the same time that tapping of the resources have to be done with the requisite attention and care so that ecology and environment may not be affected in any serious way, there may not be depletion of water resources and long term planning must be undertaken to keep up the national wealth. It is always to be remembered that these are permanent assets of mankind and or not intended to be exhausted in one generation.In instant case, though the decision to introduce new course is positive but it will have adverse effect on the ecology which is irreparable. No activities which would ultimately lead to unsustainable development and ecological destruction should be at all allowed[footnoteRef:28]. The balance has to be struck between the interests, both environment as well as development, but there should not be development at the cost of environment[footnoteRef:29] [28: K.M Chinnappa v. Union of India, AIR 2003 SC 724] [29: Indian Council for Enviro-legal Action v. U.O.I, (1966) 5 SCC 281]

The Honble SC in Vellore Citizens Welfare Forum v. Union of India[footnoteRef:30] observed: [30: (1996) 5 SCC 647]

though the leather industries is of vital importance to the country as it generate foreign exchange and provides employment avenues, it has no right to destroy the ecology, degrade the environment and pose a health hazard. Thus, in light of the above mentioned reasons it is humbly submitted before the honble court that writ of mandamus should be issued to Ambuja College of law directing perpetual injunction on construction of new hostels and building on the bank of ganga.

PRAYER

In light of the issues raised, arguments advanced and cases cited it is most humbly prayed before this Honble court

That the Perpetual Injunction for the construction of the proposed hostels and building on the bank of Ganga be granted under Article 226 of the Indian constitution, 1949

Or grant such other relief as the court may deem fit in the light of justice, equity and good conscience and for this Act of Kindness the Counsel as in duty bound, shall pray forever.

Respectfully Submitted Sd/- Counsel for Petitioner

1