t14 - petitioner

B M SREENIVASAIAH MEMORIAL 2nd NATIONAL MOOT COURT COMPETITION2016

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

T 14

BEFORE THE HON’BLE SUPREME COURT OF KANO

STATE OF KARAK..……………………………….………………………….PETITIONER

VERSUS

STATE OF MANDEVILLE……………………………………………………RESPONDENT

PETITION FILED UNDER ARTICLE 131 OF THE CONSTITUTION OF KANO

The Hon'ble Constitutional Bench of the Supreme Court

The humble submission of the petitioner above named

Sd/- (Signature) Sd/- (Signature)

Counsel for the Petitioner Petitioner

To,

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TABLE OF CONTENTS

Sl. No. Particulars Page No.

1. LIST OF ABBREVIATIONS ii

2. INDEX OF AUTHORITIES

• Books referred

• Dictionaries and Law Lexicons

• Statutes and Rules referred

• Websites referred

• Table of cases

iii - v

3. STATEMENT OF JURISDICTION vi

4. STATEMENT OF FACTS vii

5. STATEMENT OF ISSUES viii

6. SUMMARY OF ARGUMENTS ix

7. ARGUMENTS ADVANCED 1 – 16

8. PRAYER 17

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LIST OF ABBREVIATIONS

1. AIR : All India Reporter

2. Art. : Article

3. Edn. : Edition

4. e.g : Example

5. EIA : Environmental Impact Assessment

6. Hon’ble : Honorable

7. i.e. : That is

8. MoEF : Ministry of Environment and Forest

9. SC : Supreme Court

10. SCC : Supreme Court Cases

11. SCR : Supreme Court Report

12. Vol. : Volume

13. Vs. : Verses

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INDEX OF AUTHORITIES

BOOKS REFERRED

i. D D BASU: “CONSTITUTION OF INDIA”, LEXIS NEXIS, NAGPUR, 14TH

EDN.(2009)

ii. D D BASU: “COMMENTARY ON THE CONSTITUTION OF INDIA”, LEXIS

NEXIS, NAGPUR, VOL.4, 8TH EDN. (2008)

iii. D.J.DE, “THE CONSTITUTION OF INDIA”, ASIA LAW HOUSE, HYDERABAD,

VOL. 2, 2002 EDN.

iv. Dr. L.M.SHINGHVI, “CONSTITUTION OF INDIA”, THOMSON REUTERS,

NEW DELHI, VOL.2, 3RD EDN., 2013

v. Dr. SUBHASH C. KASHYAP, “CONSTITUTIONAL LAW OF INDIA”,

UNIVERSAL LAW PUBLISHING CO., DELHI,VOL.1, 2008 EDN.

vi. H. M. SEERVAI: “CONSTITUTIONAL LAW OF INDIA”, N. M. TRIPATHI PVT

LTD, BOMBAY, 3RD EDITION.

vii. JAIN, M.P.: “INDIAN CONSTITUTIONAL LAW”, WADHWA AND

COMPANY,NAGPUR, 5TH EDN. (REP.2005)

viii. P. ISHWAR BHAT: “INTER-STATE AND INTERNATIONAL WATER

DISPUTE”, EASTERN BOOK COMPANY (P) LTD, LUCKNOW, 1ST EDITION.

ix. PROF. PRASAD DIWAN: “ENVIRONMENT ADMNISTRATION”, DEEP &

DEEP PUBLICATION, NEW DELHI.

x. S. C. SHASTRI: “ ENVIRONMENTAL LAW”, EASTERN BOOK COMPANY (P)

LTD, LUCKNOW, 3RD EDITION.

xi. SUSAN WOLF & ANNA WHITE: “PRINCIPLES OF ENVIRONMENTAL LAW”,

CAVENDISH PUBLISHING LTD, GREAT BRITAIN, 2ND EDITION.

xii. VIDYANATH: “WATER RESOURCES OF INDIA”, OXFORD UNIVERSITY

PRESS, NEW DELHI, 1ST EDITION.

xiii. V. R. KRISHNA IYER: ““ENVIRONMENTAL PROTECTION AND LEGAL

DEFENCE, STERLING PUBLISHERS PVT LTD

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DICTONARIES AND LAW LEXICONS

1. BLACK HENRY CAMPBELL, BLACK ' LAW DICTIONARY 6TH ED., 1990

2. BURTON WILLIAM C, LEGAL THESAURUS, 2ND ED., 1992

3. GARNER BRYAN, BLACK ' LAW DICTIONARY, 7TH ED

4. GARNER BRYAN, MODERN LEGAL USAGE, 1991

5. PRAMANATHA'S AIYER'S , "LAW LEXION", 2ND ED., 1997

6. THE OXFORD ADVANCED LEARNER DICTIONARY, 6TH ED. 2003

7. WHARTON, LAW LEXICON, 14TH ED. 1993

STATUTES, CONVENTIONS AND RULES REFERRED

• THE CONSTITUTION OF INDIA, 1950

• THE ENVIRONMENTAL (PROTECTION) ACT, 1986

• INTER – STATE WATER DISPUTES ACT, 1956

• CONVENTION ON THE LAW OF THE NON-NAVIGATIONAL USES OF

INTERNATIONAL WATER COURSES,1997

• THE INDUS WATER TREATY, 1960

• NATIONAL WATER POLICY, 2012

LIST OF WEBSITES REFERRED

• http://www.indiankanoon.org

• http://www.manupatra.com

• http://www.legalpundits.com

• http://www.lexisite.com

• http://www.judisnic.in

• http://www.lawteacher.net

• http://www.legalindia.in

• http://www.wrmin.gov.nic.in

• http://www.enfor.gov.in

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TABLE OF CASES

• A.D.M. v. ShivakantShukla (1976) 2 SCC 521 : AIR 1976 SC 1207;

• B.D.Sharma v. Union of India 1992 Supp. (3) SCC 93

• Chameli Singh v. State of U.P., (1996) 2 SCC 549

• Delhi Water Supply & Sewage Disposal Undertaking v. State of Haryana

• Gramophone Co. of India Ltd. v. BirendraBahadurPandey, (1984) 2 SCC 534

• State of Haryana v. State of Punjab, A.I.R. 2002 SC 685

• Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360: AIR 1980 SC 470

• Madhu Kishore v. State of Bihar, 1996 (5) SCC 125

• M.C.Mehta (Badkhal and Surajkund Lakes Matter) v. Union of India, (1997) 3 SCC

715

• M.C.Mehta v. Union of India, (1987) 4 SCC 463

• M.C.Mehta v. Union of India, 1988 SCR (2) 530 (1987)

• Narmada BachaoAndolan v. Union of India, (2000) 10 SCC 664

• N.D.Jayal v. Union of India (2004) 9 SCC 362; AIR 2004 SC 867

• Networking of Rivers, re (2012) 4 SCC 51

• Rural Litigation and Entitlement Kendra v. State of U.P., 1986 Supp SCC 517;

• Samata v. State of Andhra Pradesh, AIR 1997 (8) SC 3297;

• State of Andhra Pradesh v. State of Maharashtra &Ors

• State of Bihar v. Union of India A.I.R 1970 S.C. 1446

• Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715

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STATEMENT OF JURISDICTION

This petition has been filed invoking jurisdiction of the Supreme Court under Article 131 of

the Indian Constitution.

Whereas Article 131 reads as under:

131. Original jurisdiction of the Supreme Court Subject to the provisions of this Constitution,

the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any

dispute

a) between the Government of India and one or more States; or

b) between the Government of India and any State or States on one side and one or more

other States on the other; or

c) between two or more States, if and in so far as the dispute involves any question

(whether of law or fact) on which the existence or extent of a legal right depends:

Provided that the said jurisdiction shall not extend to a dispute arising out of any

treaty, agreement, covenant, engagements, and or other similar instrument which,

having been entered into or executed before the commencement of this Constitution,

continues in operation after such commencement, or which provides that the said

jurisdiction shall not extend to such a dispute.

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STATEMENT OF FACTS

1. Union of Kano is a democratic republic with 29 states. It is rich in non-renewable and

renewable resources. Kano which is headed by the Nudi Adami Party has always

supported the use of renewable energy which has been made as a national policy. East

zone of Kano is blessed with favorable ecosystem, helpful for agricultural purposes.

State of Karak and Mandeville are two neighboring states in east zone.

2. The State of Mandeville is excessively dependent on tourism and nature. The two States

had stressed relation pertaining to distribution of inter-state river Aishani which takes

birth in State of Karak and travels 800 km to the Great Kano Sea.

3. The two State Governments entered into agreement which proposed the construction of

a dam named AISHANI JAL for the purpose of providing water to the drought prone

areas in the State of Karak in the year 1970. New regional political party by name

Mandi Adami Party, displaced Kano Admi Party in State of Mandeville in the year

1985 and even contested in the State of Karak. Due to ideological differences between

the two parties, the JAL project was completely stalled.

4. The western part of Karak was hit by a severe drought which led to agitation and bundh

and a complete halt of the economy, affecting the State's revenue. This lead to change

of Government in the State of Karak and NAP came to power in the State of Karak. The

State of Karak proposed that there is need of 7.5 TMC of water to solve the issues in

western Karak, which was not agreed to on environmental grounds by the State of

Mandeville. State of Mandeville, approached the Union of Kano and a Water Tribunal

was set to solve the issue.

5. The Government of Karak, approached the Union Government for clearance for

AishaniJal project. The National Environment Engineering Institute and Ministry of

Water Resources gave in principle clearance.

6. The State of Mandeville approached the Water Tribunal seeking for a stay on the

clearance given and sought an injunction against construction of the Jal Project as the

same was affecting the flora and fauna. The tribunal was not convinced with this line of

argument and thus did not entertain the application and rejected the same. Aggrieved by

this, the State of Mandeville has approached the Supreme Court of Kano for seeking

relief. The matter is before the Supreme Court of Kano for final hearing.

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STATEMENT OF ISSUES

1. WHETHER THE PETITION IS MAINTAINABLE?

2. WHETHER THE CONSTRUCTION OF AISHANI JAL PROJECT WILL

LEAD TO VAST AND IMMENSE ECOLOGICAL IMBALANCE?

3. WHETHER THE CONSTRUCTION OF DAM WILL VIOLATE OR

PROTECT THE FUNDAMENTAL RIGHTS OF THE PEOPLE?

4. WHETHER THE STATE OF MANDEVILLE IS ENTITLED FOR ANY

RELIEF OR AWARD?

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SUMMARY OF ARGUMENTS


It is respectfully submitted before this honorable court that the petition filed by the

petitioner is maintainable. It is Art 131 of the constitution which was the sole resort to

approach this honorable court for a remedy. That is the original jurisdiction of the Supreme

Court Subject to the provisions of this Constitution, the Supreme Court shall, to the

exclusion of any other court, have original jurisdiction in any dispute, 131(c) Between two

or more States, if and in so far as the dispute involves any question (whether of law or fact)

on which the existence or extent of a legal right depends.

2. WHETHER THE CONSTRUCTION OF AISHANI JAL PROJECT WILL LEAD TO VAST

AND IMMENSE ECOLOGICAL IMBALANCE?

It is respectfully submitted that there is vast and immense ecological imbalance due to the

construction of Aishani jal project. State of Mandeville is excessively dependent on

tourism, because of the wildlife sanctuary located on a vast area and which is the home of

various exquisite birds, animals and with varieties of flora and fauna alongside the border

with the state of Karak. It is logical that when a dam is constructed it uses acres together

and clears the land by cutting down trees (deforestation). Environmental consequences of

dam include direct impacts to the biological, chemical and physical properties of rivers and

riparian (or "stream-side") environments. The dam wall itself blocks fish migrations, which

in some cases and with some species completely separate spawning habitats from rearing

habitats.

3. WHETHER THE CONSTRUCTION OF DAM WILL VIOLATE OR PROTECT

THE FUNDAMENTAL RIGHTS OF THE PEOPLE?

It is humbly submitted before this Hon’ble Supreme Court that if the construction of dam is

not delayed or stopped it will lead to grave violation of fundamental rights of the people of

State of Mandeville.

Firstly, the fundamentals right which will be violated here are Art. 21. Article 21 enshrines

that ‘No person shall be deprived of his personal life and liberty expect otherwise the

procedure established by law.’

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The counsel for petitioners are here before the Supreme Court stand with the plea that the

construction of dam should not be implemented and if at all it is to be implemented the

petitioners want proper arrangement and time to deal with the ecological imbalances that

would be a result of construction of dam. Article 21 in itself is a vast ocean consisting of

several other rights such as human rights, right to environment, right to live with dignity,

right to water.

Deforestation, soil erosion, eviction of residents from the site, loss of livelihood. Due to

construction and heavy machine working on the land, fertility of land will face major hit

back and the soil will be eroded. Water resource upon which the dam is to be constructed

will definitely get polluted when the material to be used for construction gets into the water

body.

4. WHETHER THE STATE OF MANDEVILLE IS ENTITLED FOR ANY AWARD

OR RELIEF?

It is most humbly submitted before this Hon’ble Supreme Court that the State of

Mandeville is eligible for injunction to stop the construction of dam as the negative impact

of this proposed construction has been already proved in this written submission.

There are many aspects which have to be taken in consideration to prove that the State of

Mandeville is entitled to temporary injunction against State of Karak to stop the proposed

construction.

The counsel for the petitioner humbly contends for the temporary injunction. The reason

behind praying for temporary injunction is that the petitioners want the dispute to be fully

adjudicated by the Tribunal set up for the same. Further, when there is a Tribunal who has

not looked into the matter yet, then how any policies arising out of that dispute can be

implemented? The State of Mandeville has approached the Tribunal with the same prayer

of seeking injunction, but that was dismissed. The petitioners having no alternative way

came to the Supreme Court in a belief that they will be heard and there grounds will be

assessed and at last justice will be provided by the Temple of Justice.

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ARGUMENTS ADVANCED


It is respectfully submitted before this honorable court that the petition filed by the petitioner

is maintainable. “From great power comes great responsibility”, it is the responsible state of

Mandeville which has taken up this great cause of protecting the rights of the people and

animals and also to prevent the harm that would be caused to the ecosystem if there rises a

dam along the Aishani river by the respondents i.e. state of Karak.

1.1 Aggrieved by the decision of the tribunal (set up by the Union of Kano to resolve the

water dispute issues) to go ahead with the construction of dam across Aishani river, inspite of

seeking for a stay on clearance given by the Union Government through the ministry of water

resources and also by the National Engineering Institute and also sought an injunction against

the state of Karak to stop the construction of the Aishani Jal Project immediately as the same

was affecting the flora and fauna of the wild life sanctuary in the same application. The

tribunal rejected the application of the same.

It is Art 131 of the constitution of Kano which was the sole resort to approach this honorable

court for a remedy. Art 131 categorically states that:

Original jurisdiction of the Supreme Court Subject to the provisions of this Constitution, the

Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any

dispute

(a) Between the Government of India and one or more States; or

(b) Between the Government of India and any State or States on one side and one or more

other States on the other; or

(c) Between two or more States, if and in so far as the dispute involves any question (whether

of law or fact) on which the existence or extent of a legal right depends: Provided that the

said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant,

engagements, and or other similar instrument which, having been entered into or executed

before the commencement of this Constitution, continues in operation after such

commencement, or which provides that the said jurisdiction shall not extend to such a

dispute.

1.2 This makes the locus standi of the petitioner very clear before this honorable court. The

provision further explains that the Supreme Court has power to hear and declare the disputes.



So the Supreme Court is competent to pass decree of execution as the decree of any other

court. The Supreme Court has been exclusive original jurisdiction in disputes between the

union and the state or states or between states inter se. However, this article provides that this

jurisdiction shall not extent to a dispute arising out of a treaty, agreement, covenant,

engagement, sand or other similar instrument which was executed before the commencement

of the constitution or continues in operation. Under this article Supreme Court has, not only

the power to give a declaratory judgment in a suit but also has power to give all reliefs which

are necessary for enforcement of this legal right claimed in the suit if such legal right is

established.

1.3 Parliament may by law exclude Supreme Court’s jurisdiction under Article 262.

According to this article, disputes or complaints with respect to use, distribution or control of

water in any inter – State River or river valley can be adjudicated by the respective statutory

tribunal. Whereas, the aggrieved petitioner is seeking for relief against the decision of the

constituted tribunal which rejected the application filed seeking for the stay on the clearance

given and sought an injunction against the State of Karak to stop the construction of Aishani

Jal Project, which makes it crystal clear that the petitioner is not before this hon’ble bench for

use, distribution or control of the inter-state river water that is Aishani, or at that sake for the

dispute settlement of the very same.

1.4 In support to the above arguments, in the case of Haryana V. State of Punjab1, it was

held that, where there was an agreement between two states to share the waters of a river and

the riparian state was to construct for waters to reach the other state but failed to do so, there

was no water dispute between two states as they had already agreed to share the waters. The

issue was that of the obligation of one the states to construct the canal as part of the

agreement. The matter came under the ambit of article 131. The obligation had to be fulfilled.

Further it was apodictic in the case of State of Andhra Pradesh V. State of Maharashtra

&Ors2.it was challenged ,whether the suit is not maintainable in view of the bar under Article

262 of the Constitution of India read with Section 11 of the ISWD Act 1956? In which the

petitions were admitted.

1.5 The point of departure for this article is the fact that the Special Leave Petitions (SLPs)

against the Cauvery Tribunal's Final Order submitted by three States (Tamil Nadu,

Karnataka, and Kerala) have been admitted by the Supreme Court and will be heard further, 1Haryana Vs State of Punjab, A.I.R. 2002 SC 685 2State of Andhra Pradesh V. State of Maharashtra & Ors



but the article is not about the merits of those petitions; it is about the role of the Supreme

Court in such cases.

1.6 Further in the case of State of Bihar v. Union of India3, it was held that article 131 did

not contemplate a suit for complete adjudication of all the issues in the dispute between the

parties, resulting in an executable decree but merely a declaration of the legal question on

which the existence or extent of a legal right depended.

1.7 It is further submitted that the aggrieved party state of Mandeville) had no other

alternative than to knock the doors of Supreme Court of Kano as it is the Apex court and the

last resort. It is the right life and lively hood which is violated. The role of judiciary is to

protect the fundamental rights. A modern democracy is based on the twin principles of

majority rule and the need to protect fundamental rights. It is the job of the judiciary to

balance the principles. Thus the petitioners would claim the maintainability.

Henceforth the counsel would like to conclude by contending that the petition is

maintainable.

3State of Bihar v. Union of India A.I.R 1970 S.C. 1446



2. WHETHER THE CONSTRUCTION OF AISHANI JAL PROJECT WILL LEAD

TO VAST AND IMMENSE ECOLOGICAL IMBALANCE?

It is respectfully submitted that there will be vast and immense ecological imbalance if the

construction of Aishani jal project is implemented. State of Mandeville is excessively

dependent on tourism and nature, because of the wildlife sanctuary located on a vast area and

which is the home of various exquisite birds, animals and with varieties of flora and fauna

alongside the border with the state of Karak. The construction of Aishani jal project alongside

the border of state of Mandeville and state of Karak would affect the peaceful condition of

the environment and cause ecological imbalances. It is logical that when a dam is constructed

it uses acres together and clears the land by cutting down trees (deforestation). Deforestation

is the cutting down of trees from an area with no intention of establishing a future stand of

trees. Deforestation on a human scale results in decline in biodiversity, and on a natural

global scale is known to cause the extinction of many species. The removal or destruction of

areas of forest cover has resulted in a degraded environment with reduced biodiversity.

2.1 It is submitted that the environmental consequences of dams also includes direct impacts

to the biological, chemical and physical properties of rivers and riparian (or "stream-side")

environments. The dam wall itself blocks fish migrations, which in some cases and with some

species completely separate spawning habitats from rearing habitats. The dam also traps

sediments, which are critical for maintaining physical processes and habitats downstream of

the dam (include the maintenance of productive deltas, barrier islands, fertile floodplains and

coastal wetlands). Another significant and obvious impact is the transformation upstream of

the dam from a free-flowing river ecosystem to an artificial slack-water reservoir habitat.

Changes in temperature, chemical composition, dissolved oxygen levels and the physical

properties of a reservoir are often not suitable to the aquatic plants and animals that evolved

with a given river system. Indeed, reservoirs often host non-native and invasive species (e.g.

snails, algae, predatory fish) that further undermine the river's natural communities of plants

and animals. The alteration of a river's flow and sediment transport downstream of a dam

often causes the greatest sustained environmental impacts. Life in and around a river evolves

and is conditioned on the timing and quantities of river flow. Disrupted and altered water

flows can be as severe as completely de-watering river reaches and the life they contain. Yet

even subtle changes in the quantity and timing of water flows impact aquatic and riparian life,

which can unravel the ecological web of a river system.



2.2 It is also submitted that large dams have led to the extinction of many fish and other

aquatic species, the disappearance of birds in floodplains, huge losses of forest, wetland and

farmland, erosion of coastal deltas, and many other immitigable impacts. The construction of

a dam itself can contribute to the degradation of its catchment. Improved access to the forests,

both during and after dam construction, degrades catchment forests. The construction of

roads and other infrastructure and the enhanced activities in the area also put an additional

pressure on the forests. In many cases the state has taken effort to protect its environmental

aspects as in the case of Supreme court in N.D. Jayal v. Union of India4, which elaborately

dealt with the state preparation to manage environmental impacts of Tehri dam project, which

included the issues relating to treatment of catchment area, avoidance of soil erosion,

protection of flora and fauna. The court appreciated the state efforts and insisted on effective

implementation of the proposed scheme.

2.3 It is also submitted that one of the problems with construction of dams is is the erosion

of land. Dams hold back the sediment load normally found in a river flow, depriving the

downstream of this. In order to make up for the sediments, the downstream water erodes its

channels and banks. This lowering of the riverbed threatens vegetation and river wildlife. A

major example of soil erosion problems is the Aswan Dam. Before the construction of the

High Dam, the Nile deposited sediments of various particle size – consisting of fine sand, silt

and clay – on fields in Upper Egypt through its annual flood, contributing to soil fertility.

However, the nutrient value of the sediment has often been overestimated. 88 percent of the

sediment was carried to the sea before the construction of the High Dam. The nutrient value

added to the land by the sediment was only 6,000 tons of potash, 7,000 tons of phosphorus

pent oxide and 17,000 tons of nitrogen. These amounts are insignificant compared to what is

needed to reach the yields achieved today in Egypt's irrigation. Also, the annual spread of

sediment due to the Nile floods occurred along the banks of the Nile. Areas far from the river

which never received the Nile floods before are now being irrigated. The trapping of

sediment by the dam has also increased coastline erosion surrounding the Nile Delta. The

coastline erodes an estimated 125–175 m (410–574 ft) per year.

“A river is more than an amenity…. It is a treasure. It offers a necessity of life that must be

rationed among those who have power over it.”

4N.D.Jayal v. Union of India (2004) 9 SCC 362; AIR 2004 SC 867



2.4 The conceptual origin of the precautionary principle can be traced to the rejection of the

“assimilative capacity approach”, which was premised on the assumption that the

environment has an inherent capacity to assimilate environmental damage to a certain degree.

This is best reflected in the axiom “The solution to pollution is dilution”. Pollution beyond

this frontier required legal intervention.

2.5 In M.C.Mehta (Badkhal and Surajkund Lakes Matter) V. Union of India5, the context

of our municipal law, the principle implies that the state government and statutory authorities

are to anticipate, prevent and attack the causes of environmental degradation (Environmental

degradation is the deterioration of the environment through depletion of resources such as air,

water and soil; the destruction of ecosystems and the extinction of wildlife. It is defined as

any change or disturbance to the environment perceived to be deleterious or undesirable.),

and when 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.

It is rightly quoted by the great environmentalist, Ansel Adams “It is horrifying that we have

to fight our own government to save the environment”

Any project is appropriate if it goes hand in hand with the sustainable development. In

Vellore Citizens Welfare Forum v. Union of India6, it was observed that the balance

between environmental protection and developmental activities could only be maintained by

strictly following the principle of ‘sustainable development.’

2.6 A basic shift in the approach to environmental protection occurred initially between 1972

and 1982. Earlier the Concept was based on the `assimilative capacity' rule as revealed from

Principle 6 of the Stockholm Declaration of the U.N. Conference on Human Environment,

1972. The said principle assumed that science could provide policy-makers with the

information and means necessary to avoid encroaching upon the capacity of the environment

to assimilate impacts and it presumed that relevant technical expertise would be available

when environmental harm was predicted and there would be sufficient time to act in order to

avoid such harm. But in the 11th Principle of the U.N. General Assembly Resolution on

World Charter for Nature, 1982, the emphasis shifted to the `Precautionary Principle', and

this was reiterated in the Rio Conference of 1992 in its Principle 15 which reads as follows:

5M.C.Mehta (Badkhal and Surajkund Lakes Matter) V. Union of India, (1997) 3 SCC 715 6 Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715



"Principle 15: In order to protect the environment, the precautionary approach shall be widely

applied by States according to their capabilities. Where there are threats of serious or

irreversible damage; lack of full scientific certainty shall not be used as a reason for

proposing cost-effective measures to prevent environmental degradation."

2.7 In regard to the cause for the emergence of this principle, Charmian Barton, in the article

earlier referred to in Vol. 22, Harv. Entt.L.Rev. (1998:547) says:

"There is nothing to prevent decision makers from assessing the record and concluding there

is inadequate information on which to reach a determination. If it is not possible to make a

decision with "some" confidence, then it makes sense to err on the side of caution and prevent

activities that may cause serious or irreversible harm. An informed decision can be made at a

later stage when additional data is available or resources permit further research. This ensures

that greater caution is taken in environmental management; implementation of the principle

through Judicial and legislative means is necessary."

In other words, the inadequacies of science are the real bases that have led to the

Precautionary Principle of 1982. It is based on the theory that it is better to err on the side of

caution and prevent environmental harm which may indeed become irreversible.

2.8 The principle of precaution involves the anticipation of environmental harm and taking

measures to avoid it or to choose the least environmentally harmful activity. It is based on

scientific uncertainty. Environmental protection should not only aim at protecting health,

property and economic interest but also protect the environment for its own sake.

Precautionary duties must not only be triggered by the suspicion of concrete danger but also

by (justified) concern or risk potential. The precautionary principle was recommended by the

UNEP Governing Council (1989). The Bomako Convention also lowered the threshold at

which scientific evidence might require action by not referring to "serious" or "irreversible"

as adjectives qualifying harm. However, summing up the legal status of the precautionary

principle, one commentator characterized the principle as still "evolving" for though it is

accepted as part of the international customary law, "the consequences of its application in

any potential situation will be influenced by the circumstances of each case."

Hence, the counsel for the petitioner conclude the issue of construction of dam leading to

ecological imbalance in a positive node. As it will definitely lead to loss of flora and fauna.



3. WHETHER THE CONSTRUCTION OF DAM WILL VIOLATE OR PROTECT

THE FUNDAMENTAL RIGHTS OF THE PEOPLE?

It is humbly submitted before this Hon’ble Supreme Court that if the construction of dam is

not delayed or stopped it will lead to grave violation of fundamental rights of the people of

State of Mandeville.

3.1 Firstly, the fundamentals right which will be violated here are Art. 21. Article 21

enshrines that ‘No person shall be deprived of his personal life and liberty expect otherwise

the procedure established by law.’

3.2 The counsel for petitioners are here before the Supreme Court stand with the plea that the

construction of dam should not be implemented and if at all it is to be implemented the

petitioners want proper arrangement and time to deal with the ecological imbalances that

would be a result of construction of dam. Article 21 in itself is a vast ocean consisting of

several other rights such as human rights, right to environment, right to live with dignity,

right to water.

3.3 In the sphere of law governing Inter – State Water disputes, several values such as human

rights, development with human right to water7, development with justice, environmental

protection, dignity of life, democracy, federalism, and social harmony come to the forefront

and the mechanisms for law making, adjudication and administration ought to uphold them in

a balanced manner. Similarly in Chameli Singh v. State of U.P.8, “…Right to live guaranteed

in any civilized society implies the right to food, water, decent environment, education,

medical care and shelter. These are basic human rights known to any civilized society.”

According to dworkin’s proposition that a genuine advance of constitutional law can occur

only with the fusion of moral theory into it, the question of enhancing the moral worthiness

of the Constitution shall be properly addressed in any discourse on sensitive and serious

problems like inter – state water disputes, which the constitution contemplates to decide.9

Issue of Inter State water dispute is a legal as well as moral issue. The best way to decide this

issue or any issue that arise out of this dispute is by moral perspective.

7Delhi Water Supply & Sewage Disposal Undertaking v. State of Haryana, it was held that Right to water is a fundamental right under Art. 21. 8Chameli Singh v. State of U.P., (1996) 2 SCC 549 p.555 para 8 9 Ronald Dworkin, Taking Rights Seriously (2ndEdn., Universal Law Publishing Company, New Delhi 1999) 149. For treatment of constitution as moral document and its implications.



3.4 Fundamentals Rights violated here are mainly:

Art. 21 Right to life and in that: 1) Right to environment, 2) Right to shelter, 3) Right to

livelihood, 4) Human Rights

In this submission it would be further proved one by one how the fundamentals rights

enshrined under Art. 21 is being violated. First of all thinking from the perspective of Right

to environment effect of construction of dam is having adverse effect on environment. Right

to Environment is a fundamental right.10 Here by the construction of dam ecological balance

will be disturbed. Ecological balance is synonyms to sound environment, so if ecological

balance is disturbed then Right to Environment will be taken away by the people of

Mandeville.

3.5 In Samata v. State of Andhra Pradesh11

Concept of “Precautionary Principle” plays a very important role here to show that the

petitioners are on the right path. The “Precautionary Principle” makes it mandatory for the

State Government to anticipate, prevent and attack the causes of environment degradation.

As held in M.C.Mehta (Badkhal and Surajkund Lakes Matter) V. Union of India12. In the

same case the court held that, “We are, however, of the view that ‘The Precautionary

Principle’ and ‘The Polluter Pays’ principle are essential features of ‘Sustainable

development. The ‘Precautionary Principle’ in the context of the municipal law means-

i) Environmental Measures- by the State Government and the statutory authorities- must

anticipate, prevent, attack the causes of environmental degradation.

ii) The ‘onus of proof’ is on the actor or the developer/industrialist to show that his action is

environmentally benign.”

Taking note of the above principle the Supreme Court held that the Precautionary principle

and the Polluter Pays principle are part of environmental law of the country.

10M.C.Mehta v. Union of India, 1988 SCR (2) 530 (1987) 11Samata v. State of Andhra Pradesh, AIR 1997 (8) SC 3297; Madhu Kishore v. State of Bihar, 1996 (5) SCC 125 12 Supra page 11 para 4, Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647; Rural Litigation and Entitlement Kendra v. State of U.P., 1986 Supp SCC 517; M.C.Mehta v. Union of India, (1987) 4 SCC 463, relied on



Where the Customary International law is not contrary to the municipal law, it shall be

deemed to have been incorporated in the domestic law and shall be followed by the courts.13

3.6 Any development in this modern world is to be made keeping the idea of sustainable

development in mind. It is an internationally accepted principle. Environment law also

contemplates the doctrine of sustainable development. Sustainable development means

“development that meets the needs of the present, without compromising the ability of future

generations to meet their own needs." Construction of dam will be having ecological impact

which is negative in character. First of all the flora and fauna will be affected vastly as there

will be cutting of trees to make the site eligible for construction. The land will get affected

immensely as it is a known fact that land beside the river bank is the most fertile land for

agriculture.

Riverbed deepening (or "incising") will also lower groundwater tables along a river, lowering

the water table accessible to plant roots (and to human communities drawing water from

wells). Altering the riverbed also reduces habitat for fish that spawn in river bottoms, and for

invertebrates.

3.7 To substantiate that there will be an effect on environment it would be sufficient to point

out the N.D.Jayal v. Union of India14judgment, which is a case relating dam safety, benefit

sharing and performance of joint undertaking of States of U.P. and Uttaranachal, the Supreme

Court looked from human right perspective. Developing the thee that issues of development

cannot be separated from framework of human rights, Rajendra Babu J for the majority

observed:

The right to development includes the whole spectrum of civil, cultural, economic,

political and social process, for the improvement of people’s well-being and realization

of their full potential. It is an integral part of human rights. Of course, construction of a

dam or a mega project is definitely an attempt to achieve the goal of wholesome

development……

Therefore, the adherence of sustainable development principle is a sine qua non for the

maintenance of the symbiotic balance between the rights to environment and

development. Right to development is a fundamental right. On the other hand, right to

13A.D.M. v. Shivakant Shukla (1976) 2 SCC 521 : AIR 1976 SC 1207; Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360: AIR 1980 SC 470; Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, (1984) 2 SCC 534: 1984 SCC (Cri) 313: AIR 1984 SC 667 14Supra Page 9, Para.2



development is also one. Here the right to ‘sustainable development’ cannot be singled

out. Therefore, the concept of ‘sustainable development’ is to be treated an integral part

of ‘life’ under Art. 21.

So it is very evident that if the dam is built it would be against the perspective of sustainable

development because when the construction of dam is in progress it will destroy

environment.

3.8 Deforestation, soil erosion, eviction of residents from the site, loss of livelihood. Due to

construction and heavy machine working on the land, fertility of land will face major hit back

and the soil will be eroded. Water resource upon which the dam is to be constructed will

definitely get polluted when the material to be used for construction gets into the water body.

In Networking of Rivers, re15, the court considered the argument that the preservation of

water resources is part of the right to life enshrined in Art. 21 and that the Central

Government had the duty to adopt all necessary natural and scientific measures to augment

and preserve natural resources. Although the court did not give definite answer on this issue,

the general thrust of the judgment aimed at treating the right to water as fundamental rights to

be protected through remedies under Article 32, and enforced by effective governmental

measures.

3.9 Here in this instant case Central Government shall make some policy such as rain water

harvesting and some other methods which will resolve water issues without disturbing the

ecological imbalance. The public interest of people of State of Mandeville is at stake, they

will suffer largely if the dam is constructed.

3.10 Even Art. 48-A of Constitution of Kano enshrines “ Protection and improvement of

environment and safeguarding of forests and wildlife.- The State shall endeavor to protect

and improve the environment and to safeguard the forests and wildlife of the country.” This

directive principle also focuses on environment safety and benefit of people in the long run.

Though Article 37 of the Constitution declares that the Directive Principles of State Policy

‘shall not be enforceable by any court, but the principles therein laid down are nevertheless

fundamental in the governance of the country and it shall be the duty of the state to apply

these principles in making laws’. The subsequent amendments to the Constitution have

emphasized the need to give priority to the DPSPs over the fundamental rights.

15Networking of Rivers, re (2012) 4 SCC 51



3.11 The issue of displacement of large sections of the population on account of the

construction of a multi-purpose dam and the question of their right to rehabilitation again

came up for consideration in N. D. Jayal v. Union of India16. Two of the three judges

constituting the bench that heard the case declined to examine the safety aspects of the dam,

following the dictum in the Narmada decision holding that: When the government or the

authorities concerned after due consideration of all view points and full application of mind

took a decision, then it is not appropriate for the court to interfere. Such matters must be left

to the mature wisdom of the Government or the implementing agency. It is their forte …. The

consideration in such cases is in the process of decision and not in its merits134 . In regards

to the rehabilitation issue, the Court accepted the version of the Government that there was

‘substantial compliance with all the conditions’, and that the monitoring of the fulfillment of

the conditions for environment clearance would be done by the High Court of Uttaranchal.

The dissenting judge differed on both aspects of safety as well as rehabilitation. Applying the

precautionary principle based in international environmental law, but which had also become

part of domestic law, it was held that ‘it is only after 3-D non-linear analysis of the dam is

completed and the opinion of the experts on the safety aspects is again sought that further

impoundment of the dam should be allowed.’

3.12 Water issues arise primarily as environmental issues, whether it is the matter of access to

appropriate share in natural resource, submergence of vast forest area, eviction of dam site

residents, ensuring of adequate flow of water in the river for supporting the living beings or

dam safety issues that arouses apprehension about danger to human life. According to

National Water Policy, 200217:

3.13 In the planning, implementation and operation of projects, the preservation of the quality

of environment and ecological balance should be a primary consideration.The adverse

impact, if any, on the environment should be minimized and should be off-set by adequate

compensatory measures. The project should nevertheless, be sustainable.

3.14 The concept of sustainable development is to be treated an integral part of ‘life’ under

Art. 21 of the Constitution. To ensure sustainable development is one of the goals of

Environmental Protection Act, 1986 and this is quite necessary to guarantee ‘right to life’. If

the Act is not armed with the powers to ensure sustainable development, it will become a

16 Supra page 9 para 2 17Passed by Government of India through Ministry of Water Resources



barren shell. Even Right to health is a fundamental right therefore the impact of the project on

Human Health cannot be given a go by. It has to be seriously scrutinized.

Narmada Bachao Andolan18 judgment, which involved implementation of ISWD Act, one

can find extensive discourse on human rights touching upon: right of the people to have

access to water for drinking irrigation and other purposes, right to environment and right of

the evictees to have rehabilitation and resettlement.

3.15 Now coming to look from Right to shelter perspective the construction of dam will take

away the shelter of many people. People who are residing near the proposed dam site will

lose their habitat and they need to be reallocated properly. Reallocation of those poor people,

who are residing there from a long time, is it proper to evict them from their natural habitat

and ancestral and old atmosphere. Logically people who reside near river banks are poor and

backward and their livelihood is their agriculture. The displacement of economically weaker

sections of the society and tribal is the most serious aspect of displacement from the point of

view of uprooting them from their natural surroundings. Absence of these surroundings in the

new settlement colonies shatters their social, cultural and physicals links. Rehabilitation is not

only about providing just food, clothes or shelter. It is also about extending support to rebuild

livelihood by ensuring necessary amenities of life. The benefit of dam cannot be taken over

the oustees’ rights of rehabilitation. As decided in B.D.Sharma v. Union of India19,

Rehabilitation should took place before six months of submergence. The concerned

authorities will have to take proper steps to rehabilitate all those who are entitled for

rehabilitation before six months of impoundment.

The above argument revolves around Right to shelter and right to livelihood. It is most

substantially be inferred from the above arguments that if they are evicted from the proposed

dam site they will lose their source of livelihood i.e., agriculture. Even if they are not evicted

due to proposed construction the soil will be eroded and the land would become infertile for

proper agriculture.

Hence, it is contended that the construction of dam will violate the fundamental right of

people of the State of Mandeville.

18Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664 19B.D.Sharma v. Union of India 1992 Supp. (3) SCC 93



4. WHETHER THE STATE OF MANDEVILLE IS ENTITLED FOR ANY AWARD

OR RELIEF?

It is most humbly submitted before this Hon’ble Supreme Court that the State of Mandeville

is eligible for injunction to stop the construction of dam as the negative impact of this

proposed construction has been already proved in this written submission.

4.1 There are many aspects which have to be taken in consideration to prove that the State of

Mandeville is entitled to temporary injunction against State of Karak to stop the proposed

construction.

4.2 The counsel for the petitioner humbly contends for the temporary injunction. The reason

behind praying for temporary injunction is that the petitioners want the dispute to be fully

adjudicated by the Tribunal set up for the same. Further, when there is a Tribunal who has not

looked into the matter yet, then how any policies arising out of that dispute can be

implemented? The State of Mandeville has approached the Tribunal with the same prayer of

seeking injunction, but that was dismissed. The petitioners having no alternative way came to

the Supreme Court in a belief that they will be heard and there grounds will be assessed and

at last justice will be provided by the Temple of Justice.

4.3 Apart from this, if this dam is to be built and same order if passed by the Tribunal in

future after the adjudication of water dispute, the State of Mandeville need proper time to

make arrangements for its people who will be affected by this construction. Now the question

arise how much time is needed for this kind of arrangements? The answer to this was decided

in B.D.Sharma v. Union of India20, Rehabilitation should took place before six months of

submergence. So going by the decision of Supreme Court, the State will be in need of six

months prior to the starting of construction. The counsel for petitioner are still, firmly, taking

the ground that this dam should not be built. In case, the tribunal decides and order for

construction of dam, then also time will be needed. For this the petitioner need temporary

injunction now on the permit given to the respondents.

4.4 Apart from that there has been procedural lapse in granting permission. Any such project

will always need Environmental Impact Assessment clearance from the Central Government.

Environmental Impact Assessment is a method which evaluates what products of nature are

worth or what environment value would a project/ action have on natural or man-made

environment. The Ministry of Environment and Forests (MoEF), had under the

20Supra. page 17, para 4



Environmental (Protection) Act, 1986, promulgated a notification, making environmental

clearance mandatory for expansion or modernization of any activity or for setting up new

projects listed in Schedule I of the Notifications. The MoEF amended the Notification

making public hearing mandatory for environmental clearance. The public hearing will be

conducted by the State Pollution Control Boards before the proposals are sent to MoEF for

obtaining environmental clearance and, for site specific projects, it is even before the site

clearance applications are forwarded to the MoEF. One of the key aspects of EIA 2006 is

that it clearly lays out the procedure to be followed for the purposes of obtaining

environmental clearance. This procedure is divided into four stages: 1) Screening, 2) Scoping

3) Public Consultation 4) Appraisal.

4.5 Now the counsel would like to bring the International perspective of Inter State Water

Disputes or International Water Disputes. There are various principles to be added in this

instant case. Though they are of persuasive value but the Hon’ble Supreme court has taken

the idea in number of cases. As happened in the Lake Lanoux Arbitration (1957) between

France and Spain. This arbitration was decided in 1957. This was about a proposed

hydroelectric power project by France and the same was opposed by Spain as it involved

diversion of Lake Lanoux waters. The Arbitral Tribunal, referred to several principles of

general international law such as: 1) prohibiting the upper riparian state from altering the

waters of a river in circumstances calculated to do serious injury to the lower riparian state; to

upper riparian state in good fate to take into account the concerns of lower riparian; 3)

obligation to take adverse interest into account in the course of negotiations and the

obligation to give a reasonable place to such interest in the solution adapted.21

4.6 The respondents are contending that they want 7.5 tmc of water also and the construction

of dam also will provide the same. But river is a national resource and nobody is having the

absolute right over it. They are making the dam for their benefit without thinking of other

stakeholders. Any decision or any policy if taken it should in public benefit at whole. Here if

the dam is made ecological balance will suffer. The obligation to prevent harm to other

riparian States. It should be noted that this “no- harm principle” has been identified with the

maxim sic uteretuoutalienum non laedas(so use your own as not to harm that of

another).There has also been excessive sand mining across the Aishani river in the State of

Karak. This is having a bad impact on the river and river bed. The impact includes bed

degradation, bed coarsening, lowered water tables near the stream bed. Now when the river 21 Lake Lanoux Arbitration



bed is degrading it will definitely result in the lowering of water level in the river. When the

water level is decreased there will be less flow of water to the lower riparian State. Even after

doing excessive sand mining which is having this unhealthy impact on river, the petitioner

state is asking for 7.5 TMC water. If in both the situation they want their words to be obeyed,

then the lower riparian State will not get any benefit of this national and natural resource.

4.7 Now the question will arise about the agreement entered in the year 1970 in which State

of Mandeville agreed for the construction of dam. Point to be noted is that, during the time

when agreement was entered the ruling party in both the states was same. They had their

understanding. As we can infer from the fact sheet that there had been change in political

arena in both the states. Due to ideological differences between the parties the Aishani Jal

project and the talks on water dispute was stalled. Now the scenario has been changed, the

State of Mandeville is opposing the construction of dam because they are worried about the

ecological impact and environment, where everything will have negative impact at large on

public only.

Henceforth, the counsel for the petitioner most humbly submits that the State of Mandeville

is entitled for the injunction for the benefit of its people.



PRAYER

Wherefore, in the lights of the facts stated issues raised, arguments advanced, authorities

cited and cases given the counsel for the petitioner most humbly and respectfully pray before

this Honorable Supreme Court that it may be pleased to adjudge and declare that:

1. The Petition is maintainable.

2. The construction of Aishani Jal project will lead to vast and immense ecological

imbalance. Hence it should not be implemented.

3. There will be violations of Fundamental Rights of people of Mandeville.

4. The Petitioner is entitled to get injunction on the implementation of project.

And the Court may be pleased to pass any such order or decree as it deems fit in terms of

justice and good conscience.

And for this act of kindness, your lordships, petitioner shall as duty bound ever humble pray.

Respectfully submitted

….………………………..

(Counsel for Petitioner)

t14 - petitioner

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