1

Team Code: 4

BEFORE THE HONOURABLE SUPREME COURT OF ARESSIAs

AHALI CITY

IN THE MATTER OF

TWO ARESSIAN STATES & OTHERS

.PETITIONER

Vs.
THE UNION OF ARESSIA

.RESPONDENT

FOR THE KIND ATTENTION OF THE HONOURABLE CHIEF

JUSTICE AND HIS COMPANION JUSTICES OF THE SUPREME
COURT

MEMORANDUM FOR PETITIONER

TABLE OF CONTENTS

INDEX OF AUTHORITIES..

III

STATEMENT OF JURISDICTION.

IX

STATEMENT OF FACTS.

STATEMENT OF ISSUES....

XIII

SUMMARY OF ARGUMENTS.

XIV

ARGUMENTS ADVANCED..

XV

PRAYER OF RELIEF.....................................................
XXVI

MEMORANDUM FOR PETITIONER

INDEX OF AUTHORITIES
A. BOOKS REFERRED
ENVIRONMENTAL LAW:
1. P. LEELA KRISHNAN, ENVIRONMENTAL LAW, LEXIS NEXIS, INDIA, 2008, 3RD
EDITION
2. DIVAN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA, OXFORD, 2010,
11TH EDITION
3. JUSTICE T.S. DAOBIA, ENVIRONMENTAL AND PROTECTION LAWS IN INDIA,
WADHWA, INDIA, 2005 EDITON, VOLUME I AND II
4. ROBERT AND TOFFLAN WEISZ, CHRONICLES FROM THE ENVIRONMENTAL JUSTICE
FRONTLINE, CAMBRIDGE, ENGLAND, 2011, 1ST EDITION
5. S.C. SHASTRI, ENVIRONMENTAL LAW, EASTERN BOOK COMPANY, INDIA, 2008, 3RD
EDITION
6. BILL MCGILLIVARY, ENVIRONMENTAL LAW, OXFORD, USA, 2008, 7TH EDITION
7. SHANTI KUMAR, INTRODUCTION TO ENVIRONMENTAL LAW, WADHWA, INDIA, 2008,

2ND EDITION
INTERPRETATION OF STATUTES
1. JUSTICE G.P. SINGH, PRINCIPLES OF STATUTORY INTERPRETATION, LEXIS NEXIS,
INDIA 2010, 12TH EDITION
2. MAXWELL, INTERPRETATION OF STATUTES, LEXIS NEXIS, INDIA, 2006, 12TH
EDITION
3. N.S. BINDRA, INTERPRETATION OF STATUTES, LEXIS NEXIS, INDIA, 2004, 9TH
EDITION
4. VEPA. P. SARATHI, INTERPRETATION OF STATUTES, EASTERN BOOK COMPANY,

INDIA, 2008, 5TH EDITION

ADMINISTRATIVE LAW:
1. WADE AND FORSYTH, ADMINISTRATIVE LAW, OXFORD, USA, 2009, 10TH EDITION
2. PARAS DIWAN, ADMINISTRATIVE LAW, ALLAHABAD LAW AGENCY, INDIA, 2004,
3RD EDITION
3. S.P. SATHE, ADMINISTRATIVE LAW, LEXIS NEXIS, INDIA, 2009, 7TH EDITION
4. I.P. MOSSAY, ADMINISTRATIVE LAW, EASTERN BOOK COMPANY, INDIA, 2008, 7TH
EDITION

MEMORANDUM FOR PETITIONER

CONSTITUTION
1. D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, WADHWA, INDIA,
2007, 8TH EDITION, VOLUME I AND II
2. D.D. BASU, CONSTITUTION OF INDIA, LEXIS NEXIS, INDIA, 2009, 8TH EDITION
3. D.D. BASU, SHORTER CONSTITUTION OF INDIA, LEXIS NEXIS, INDIA, 2009, 14TH
EDITION
4. D.D. BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW, LEXIS NEXIS, INDIA, 2008,
3RD EDITION
5. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA, WADHWA, INDIA, 2007,
2ND EDITION, VOLUME I AND II
6. H.M. SEERVAI, CONSTITUTION LAW OF INDIA, UNIVERSAL PUBLICATIONS, INDIA,
2004, 4TH EDITION, VOLUME I,II AND III
7. V.N. SHUKLA, CONSTITUTION LAW OF INDIA, EASTERN BOOK COMPANY, INDIA,

2008, 11TH EDITION

8. D.J. DE, CONSTITUTION OF INDIA, ASIA LAW HOUSE,INDIA, 2008, 3RD EDITION
9. M.P. JAIN, INDIA CONSTITUTIONAL LAW, LEXIS NEXIS, INDIA, 2010, 6TH EDITION
LAW LEXICONS
1. GARNER, BLACKS LAW DICTIONARY, THOMAS & WEST, U.S.A, 1990, 9TH EDITION
B. WEBSITES REFERRED
1. www.lexisnexisacademic.com
2. www.vakilno1.com
3. www.indiakanoon.org
4. www.manupatra.com
5. www.ncaer.org
6. www.wikipedia.org
7. www.oecd.org
8. www.undp.org.in
9. www.uncsd2012.org
10. www.environmental-mainstreaming.org
11. www.britannica.com
12. www.internationalrivers.org
13. www.riverlinks.org
14. www.en.wikisource.org
15. www.thesouthasian.org
16. www.nrlp.iwmi.org
17. www.legalserviceindia.com
18. www.thehindu.com
19. www.catawbariverkeeper.org
20. www.worldwaterweek.org
21. www.law.cornell.edu
22. www.thebluebook.com
23. www.journals.cambridge.org
24. www.geology.geoscienceworld.org
25. www.worldbank.org

MEMORANDUM FOR PETITIONER

26. www.indiantribalheritage.org
27. www.legalsutra.org
28. www.nwda.gov.in
C. CASE LAWS CITED
Issue 1
1. Sathyanarayana Sinha Vs Lal & Co AIR 1973 SC 2720.
2. Maneka Gandhi Vs The Union of India, 1978 AIR 597
3. Mahinder Vs The union of Indian (1995) 1 SCC 85T
4. Cf..M.S.M. Sharma Vs Krishan Sinha AIR 1959 SC 395
5. National Human Rights Commission Vs State of Arunachal Pradesh (1966) 1 SCC 742
6. Fertiliser Corporation Kamagar Union Vs Union of India AIR 1981 SC 344.
7. Gupta Vs The Union of India AIR 1982 SC 149
8. In Re kerala Eduction Bill AIR 1959 SC 956.
9. JP Uniikrishnan Vs State of Andhra Pradesh AIR 1993 SC 2178.
10. VR Sheerma Rao Vs Telugu Desam AIR 1983 AP 96.
11. KK Kochuni Vs The State Of Madras AIR 1959 SC 725.
12. S.Kalwati Vs Durga Prasad AIR 1975 SC 80.
13. Kiranmal Vs Dnyanoba AIR 1983 SC 461.
14. MMRDA Officers Association Kedarnath Rao Ghorpade Vs Mumbai Metropolitan Regional
devleopmnt Authority (2005) 2 SCC 235.
15. Kausalya Devi Bogra Vs Land Acquisition officer, Aurangabad, AIR1984 SC 892.
Issue 2
16. Mahabir Prasad Jalan v. State of Bihar, AIR 1991 Pat.40 (Para 46)
17. In Re Cauvery Water Dispute, AIR 1992 SC 522 (Paras 7,11)
18. Prafulla Kumar v. Bank of Commerce, AIR 1947 PC 60.
19. Subramaniam Chettiyar v. Muthuswami Goudan, AIR 1941 FC 47, 51
20. E.V.Chinnaiah v. State of AP. , (2005) 1 SCC 394.
21. Automobile Transport v. State of Rajasthan, AIR 1958 Raj, 114 (119) F.R.
22. R.M.D Chamarbauguala V. The Union of India, AIR 1957 S.C. 628 (633).
23. Rehman Shagoo v. State of Jammu and Kashmir, AIR 1960 SC 1 (6).
Issue 3
24. E.P. Royappa v. State of T.N. (1974) 4 SCC 3
25. Maneka Gandhi v. Union of India, (1978) 1 SCC 248
26. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223
27. Shrilekha Vidyarthi v. State of U.P. , (1991) 1 SCC 212; Style (Dress Land) v. Union
Territory of Chandigarh (1999) 7 SCC 89
28. Consumer Action Group v. State of T.N. (2000) 7 SCC 425
29. Rao v. India, AIR 1971 SC 1002
30. State of M.P v. Nandlal, AIR 1988 SC 251
31. Onkar Lal Bajaj v. Union of India, (2003) 2 SCC 673

MEMORANDUM FOR PETITIONER

32. Harminder v. Union of India AIR 1986 SC 1527

33. Banari Amman Sugars Ltd. v. CTO (2005) 1 SCC 625
34. Reid v. Covert, 354 U.S. 1 (1957)
35. ADM Jabalpur v. Shukla, AIR 1976 SC 1207
36. Francis Coralie v. Union Territory of Delhi (1981) 1 SCC 608
37. M.C mehta v. State of Orissa AIR 1992 ori 225
38. Narmada bachao andolan v. Union of India (2000 ) 10 SCC 664
39. A.P Pollution control board 2 v.M.V Nayudu (2001 )2 SCC 62
40. M.C Mehta v. Union of India AIR 1987 SC 1086
41. Nilabati Behera (Smt.) alias Laita Behera v. State of Orissa AIR 1993 SC 1960
42. Sodan singh v.New delhi municipal committee. (1989) 4 SCC 155
43. Pathumma v. State of Kerala, AIR 1978 SC 771(777) : (1978) 2 SCR 537 : (1978) 2 SCC 1.
44. Chintaman Rao v. State of Madhya Pradesh AIR 1951 SC 118(119)
45. Corporation of calcutta v. Calcutta tramways Ltd, AIR 1964 SC 1279 ; Govindji v. Deputy
controller of Imports and Exports, 1969 SCJ 93.

Issue 4
46. T. Damodhar Rao v. S.O. Municipal Corpn, Hyderabad, AIR 1987 AP 171
47. Indian Council for Enviro Legal Action c. Union of India, (1996) 5 SCC 281
48. Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647
49. M.C. Mehta v. Union of India (1997) 2 SCC 411
50. M.C. Mehta v. Union of India, (1998) 9 SCC 589
51. Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664
52. Francis Coralie v. Union Territory of Delhi (1981) 1 SCC 608
53. Intellectuals Forum, Tirupathi v. State of A.P,AIR 2006 SC 1350
54. Goa Foundation & Ors. v. State of Goa
55. Union of India v. G.M. Kokil, 1984 (Supp) SCC 196
56. South India Corporation (P) Ltd v. Secy., Board of Revenue, Trivandrum, AIR 1964 SC 207
(215)
57. Pannalal Bansilal Patil v. State of Andhra Pradesh, 1996 (1) Scale 405 (415).
58. T.R.Thandur v. Union of India, AIR 1996 SC 1643.
59. Punjab Sikh Regular Motor Service, Moudhapara, Raipur v. Regional Transport Authority,
Raipur, AIR 1966 SC 1318.
60. Rural Litigation and Entitlement Kendra v. State of UP., AIR 1988 SC 2187.
61. Thammayya v. Rajah Tyadapusapati, AIR 1930 Mad 963.
62. Pushpa Bai v. Sulochana Menon (1959) 1 Andh WR 363.
63. R v. London CC (1893) 2 QB 454 (462).
64. Bulova Watch Co v. United States, 365 US 753.
65. Authorised Officer v. M. Ramaswamy Gounder (1983) MAD LJ 269.
66. Carona Sahu Co v. VK Goyal, AIR 1979 Raj 1.

MEMORANDUM FOR PETITIONER

STATEMENT OF JURISDICTION

1. The petitioner submits to the jurisdiction of this Honble Court under Art 133 of the Aressian
Constitution which allows for the Supreme Court to pass a remand order on the High Courts.

MEMORANDUM FOR PETITIONER

2. The petitioner submits to the jurisdiction of this Honble Court under Art 131 of the Aressian
Constituion which gives the Supreme Court original Jurisdiction over disputes between the
Central Government and one or more states.

3. The jurisdiction of this Honble Court under Art 32 of the Aressian Constitution is invoked as
there is a violation of Articles 14, 19 (1) (g) and 21
4. The Petitioner submits to the jurisdiction of this Honble Court under the National Green Tribunal
Act, 2010 which allows for appeals to be preferred to the Honble Supreme Court within 90 days
of commencement of award.

STATEMENT OF FACTS

Aressia, is a South Asian country with a written constitution and a strong centralising tendency. Aressia is
a land of many rivers which include trans-boundary Rivers. Its economy was mainly based agriculture
and fishing. But in the past few decades there has been shortage of water, which lead to the failure of
agriculture and commission of suicides by many farmers.

MEMORANDUM FOR PETITIONER

In the year 2009, an Ngo named ACLU filed a writ petition in Honble SC of Aressia citing the plight of
the farmers, women folk and acute water shortages in the area. It pointed out many reasons for the
shortage of water including industrial activity, agriculture an urban development. A study report was
submitted showing the decline in the number of rivers in Aressia from the 1960s to the 1980s and then to
2000, from 782 to 324 out of which 50% of the latter were highly polluted.
To address this issue, the ACLU suggested the linking of rivers across the country which the SC of
Aressia considered and then directed the Central Government to constitute a high level expert committee
to conduct a study on the projects viability. It also directed the Centre to constitute a committed to
conduct Environment Impact Assessment and thus disposed the writ petition.
In December 2009, the Centre appointed both the committees. The EIA committee comprised of
representatives from various sections including environmental experts, concerned parties and both state
and central government representatives.
In May 2010. The High Level Expert Committee submitted a detailed report suggesting the linking of
certain rivers to mitigate the water shortage problem. The EIA committee identified various social and
environmental harms that could be caused by the project and suggested certain precautionary measures.
The Linking of Rivers Act, 2010 was enacted in August 2010 under which, S.3 of the Act gave the
Central Government the power to any measures deemed necessary for ensuring accessibility of water and
linking of rivers all over the country. Further S.3 (3) of the Act provided for the constitution of an
Authority for the exercise of such powers and performance of such functions necessary for linking rivers
across the country. The Authority for Linking of Rivers (ALR) was constituted on the basis of this
provision.
The project was criticised by various State governments who cited their concerns, both environmental and
otherwise. It was also criticised by various NGOs as being a political move to water to industries of some
states and they also noted the risk of corruption. The Centre decided to shelve the project for the time
being due to all the opposition to the project.
In April 2011, there was a change in the Centre with the Democratic Progressive Alliance (DPA) coming
into power. The new Prime Minister promised the Implementation of the project to provide water for
drinking, sanitation, agricultural and industrial purposes. Due to the large financial burden, it was to be
implemented in three phases.

MEMORANDUM FOR PETITIONER

10

The ALR included six states, Somanda, Normanda, Adhali, Neruda, Vindhya and Parmala in the first
phase. To date, all the rivers in these states belong exclusively to those them; but after inter-linking they
will be interstate. This included the River Bhargavi which was a trans-boundary river flowing from
Neruda to the neighbouring country of Boressia.
The States of Adhali and Parmala have objected the move of the ALR and approached the Honble SC of
Aressia challenging the validity of the Act, arguing that S.3 is Ultra Vires to the Aressian Constitution and
is an encroachment by the Centre on the States power.
The state of Vindhya possesses the largest wetland in Aressia which has been included on the Ramsar List
of Wetlands of International Importance. A state EIA committee identified that the ILR project would
harm the wetland and on the basis of its report, the Central Government directed the ALR to exclude the
state from the ILR project.
12 rivers from Vindhya were to be linked with rivers in Normanda which was facing a water Shortage.
Farmers in both the states, formed the Save the Farmers Forum and approached the Honble SC of
Aressia under Art 32 of the Constitution of Aressia to have a writ of mandamus issued. It was argued that
non-implementation of the project would lead to violation of fundamental rights of the people of both
states.
In April 2013, the Boressian Minister of Forest and Agriculture on visit to the Union of Aressia, requested
the exclusion of the River Bhargavi from the first phase of the project. But it was rejected, considering the
prospective benefits of its inclusion.
The Forum for Environmental Right (FER), an international NGO with its head office in Boressia and a
branch office in Boranda, the capital of Neruda approached the Honble HC of Neruda challenging the
inclusion of Bhargavi as being violative of the fundamental rights of the people of Boressia and
destruction of the environment there. The writ petition was dismissed by the HC of Neruda on the
acceptance of a preliminary objection raised by the respondents. An appeal has been preferred to the
Honble SC of Aressia.
In March 2014, a news channel telecast an interview where some members of the EIA committee
appointed by the Central Government disclosed that certain states could face various environmental
disasters as a consequence of the ILR project. Four members, two representing NGOs and two

MEMORANDUM FOR PETITIONER

11

representing the Central Government confessed to political pressure for a favourable EIA report. This
heavily publicised news caused wide spread protests against the ILR project.
The Centre for Environmental Rights and Advocacy (CERA), an NGO approached the National Green
Tribunal of Aressia, challenging the legality of the Linking of Rivers Act, 2010 on that grounds that it
violated the environmental rights of the citizens of Aressia and also the provisions of the Forest
(Conservation) Act, 1980. It was dismissed and an appeal was preferred to the Honble Supreme Court of
Aressia.

STATEMENT OF ISSUES

I.

Whether the petition filed by the FER is maintainable in the High Court of Neruda?

II.

Whether S.3 of the Linking of Rivers Act, 2010 is Ultra Vires the Constitution of Aressia?

MEMORANDUM FOR PETITIONER

12

III.

Whether, the exclusion of and non-implementation of Linking of Rivers Project for the State
of Vindhya is violative of fundamental rights of people of the States of Vindhya and
Normanda?

IV.

Whether the Linking of Rivers Act, 2010 violates the environmental rights of the people of
Aressia and the provisions of the Forest (Conservation) Act, 1980

SUMMARY OF ARGUMENTS
I.

Whether the petition filed by the FER is maintainable in the High Court of Neruda?
The petitioner submits that the present petition is maintainable in the High Court of Neruda. There
has been an infringement of both fundamental and legal rights of the people of Boressia. Petitioner
FER a Boressia based organisation in Neruda have sufficient interest in this cause, thereby having
Locus stanti to file this appeal. Article 133 of the Aressian Constitution provides for appeal to the
Supreme Court in Civil matters. The S.C can remand the matter to the High Court, which has to
take it up as a fresh petition

II.

Whether S.3 of the Linking of Rivers Act, 2010 is Ultra Vires the Constitution of Aressia?
The petitioner submits that, Section 3 of Linking of Rivers Act, 2010 is Ultra Vires to the

MEMORANDUM FOR PETITIONER

13

constitution. The Centre has power only to legislate upon the interstate rivers. In this case all the
rivers in the six States are within the territory of those states. Therefore the centre has gone
beyond it legislative competence, thereby attracting the Doctrine of Pith and substance.
III.

Whether, the exclusion of and non-implementation of Linking of Rivers Project for the State
of Vindhya is violative of fundamental rights of people of State of Vindhya and State of
Normanda?
The petitioner submits that the exclusion of the State of Vindhya is violative of Articles 14, 19 (1)
(g) and 21 of the Aressian Constitution. The action of the Centre is arbitrary and unreasonable.
Further the Wetlands (Conservation and Management) Rules, 2010 excludes main river channels
form the definition of wetlands. The right to water, life and to live with human dignity are being
deprived, Normanda also suffers from an acute shortage of water. The lack of access to water

IV.

restricts the farmers from practising their trade, violating the freedom of trade.
Whether the Linking of Rivers Act, 2010 violates the environmental rights of citizens of
Aressia and the provisions of the Forest (Conservation) Act, 1980?
The Courts have enshrined the Right to Environment as a part of Right to Life. The severe
environmental degradation resulting from the ILR project will lead to violation of this right.
Further, the non obstantate clause in Section 3 of the Forest (Conservation) Act, 1980 and that the
said Act is a special Act should give it priority over The Linking of Rivers Act, 2010 which
violates its provisions.
ARGUMENTS ADVANCED

I.

Whether the petition filed by Forum for Environmental Rights (FER) is maintainable in the High
Court of Neruda?
Whether the petitioner has locus standi to approach the High Court of Neruda?
S.C has the jurisdiction to determine the locus Standi of the petitioner to present the petition under
Article 226 of the Aressian constitution1.
One can approach the high court if, fundamental right or legal right has been affected. The petitioner
submits that the, if the linking of river projects take place the water from river bhargavi will not reach the
1 Sathyanarayana Sinha Vs Lal & Co AIR 1973 SC 2720.

MEMORANDUM FOR PETITIONER

14

people of Boressia, thereby depriving of their right to livelihood, which is covered under Article 21 of the
Aressian constitution. Object of Article 21 is to prevent encroachment upon personal liberty and should
be construed in a wider sense2.
Any person who complains of any infraction of any Fundamental right guaranteed by the constitution is
at the liberty to move to the court, including corporate bodies 3. Certain fundamental rights are conferred
only to the citizen of the country4, but a non-citizen or a company or a statutory authority can apply for
enforcing any of the fundamental rights guaranteed to all persons. It is the obligation of the State to
protect the life and liberty of every Human being, be he a citizen or not 5.Meaning of the person has a very
wider scope, according to black law dictionary, a person means a Human being6.
Petitioner in this case is a Boressian based Ngo having its branch office in Neruda. If an organisation
having special interest in the subject matter or a member thereof should be allowed to apply 7. The concept
of aggrieved person has been enlarged, to include any public spirited individual or association 8, acting
bona fide the cause of justice and it is not purported by any political motive 9. These type of petitions will
be entertained if a segment of public is interested and the petitioner is not aggrieved in his individual
capacity alone. Our current processual jurisprudence is broad based, people oriented and envisions access
to justice through class action, public interest litigation and representative proceedings.
In determining the scope and ambit of the fundamental rights, the court may not entirely ignore the
directive principles of state policy laid down in Pt 4 of the constitution, but should attempt to give effect

2 Maneka Gandhi Vs The Union of India

3 Mahinder Vs The union of Indian (1995) 1 SCC 85.
4 Cf.M.S.M. Sharma Vs Krishan Sinha AIR 1959 SC 395.
5 National Human Rights Commission Vs State of Arunachal Pradesh (1966) 1 SCC 742
6 GARNER, BLACKS LAW DICTIONARY, THOMAS & WEST, U.S.A, 1990, 9TH EDITION
7 Fertiliser Corporation Kamagar Union Vs Union of India AIR 1981 SC 344.
8 ibid
9 Gupta Vs The Union of India AIR 1982 SC 149.

MEMORANDUM FOR PETITIONER

15

to both as much as possible10. The consistent approach of the court is adopting the approach that the
fundamental Rights and Directive Principles are supplementary and complementary to each other and that
the provisions in the Part 3 should be interpreted having regard to the preamble and the Directive
Principles of State Policy11. All parts of the constitution must be read together and harmoniously12.
Article 51( c) of the Aressian Constitution provides that the State shall foster respect for international law
and treaty obligations in the dealings of organised peoples and one and other.
It is submitted by the petitioner that the International laws have binding force in the Indian courts. The
interpretation of a statute, the courts would so construe, if possible, as will not violate any established
principles of International Law13.
Article 16 of the International Covenant on Civil and Political Rights states that everyone shall have the
right to recognition everywhere as a person before the law. It follows from Article 6 of the United Nations
Declaration of Human Rights.
Application under Article 226 of the Areesian constitution can be presented if the applicants legal right
has been threatened with a legal peril 14.The petitioner submits, that linking of rivers will not only affect
the fundamental rights of people of Boressia, but will also lead to the destruction of forest, wildlife and
submergence of wetlands.
In here include the conventions and others international laws for the notebook, thereby affecting the legal
rights of the people in Boressia
Whether Supreme Court has the power to direct the High court to entertain this petition?
The petitioner herein has approached this Honble SC under Article 133 (3) of the Aressian Constitution.
The article provides for an appeal to the SC from the judgement, decree or final order. An order of the

10 In Re kerala Eduction Bill AIR 1959 SC 956.

11 JP Uniikrishnan Vs State of Andhra Pradesh AIR 1993 SC 2178.
12 VR Sheerma Rao Vs Telugu Desam AIR 1983 AP 96.
13 Cf. Maxwell(13th Ed.), pp. 183-86
14 KK Kochuni Vs The State Of Madras AIR 1959 SC 725.

MEMORANDUM FOR PETITIONER

16

High court under Art 226 and 227 of the Aressian constitution would be an order in a civil proceeding of
the High Court and so fall under Art 13315.
The petition in the Honble High Court under Article 226 of the Aressian constitution was dismissed
sighting preliminary objection. This appeal is preferred in the Honble S.C to direct the High Court to
take up this matter for consideration. The S.C will interfere, if is satisfied that the Justice of that case
requires interference. In the case of S. Kalwati vs Durga Prasad, it was held that the non- reasoning for
dismissing the petition in limine will evoke the jurisdiction of the Supreme Court.
When the order of the H.C court is unsatisfactory and the case cannot be disposed of without further
investigation, then the Supreme Court can direct the high court to take up this matter. The order of the
high court did not disclose any reasons for the dismissal. One word dismissal order by the High Court, the
Supreme Court found that the appellant could have raised serious question of law and the matter was
remanded to the High Court16.
Reasons substitute subjectivity by objectivity. Right to reason is an indispensable part of a sound judicial
system. The affected party can know why the decision has gone against him17.
When the Supreme Court, sets aside the judgement of the High Court and remands the case for disposal
according to law, the High Court must write a fresh judgment and cannot re correct its old judgment on
the record as its judgment after remand18. Also if the Supreme Court does not go into the merit of the case,
it goes without saying that the High Court shall pass a speaking order recording the reasons for the
same19.
II. Whether S.3 of the Linking of Rivers Act 2010 is Ultravires to the Constitution of Aressia?

15 S.Kalwati Vs Durga Prasad AIR 1975 SC 80.

16 Kiranmal Vs Dnyanoba AIR 1983 SC 461.
17 MMRDA Officers Association Kedarnath Rao Ghorpade Vs Mumbai Metropolitan Regional devleopmnt
Authority (2005) 2 SCC 235.
18 Kausalya Devi Bogra Vs Land Acquisition officer, Aurangabad, AIR1984 SC 892.
19 Refer MMRDA case.

MEMORANDUM FOR PETITIONER

17

Section 3 of the said act gives powers to the Central Government to take all measures for ensuring
availability and accessibility of water for linking of rivers all over the country. 20
Article 246 of the Aressian Constitution assigns fields of legislative powers for the Parliament and State
Legislatures through the lists enumerated in the Seventh Schedule.
The Parliament may legislate on Interstate Rivers and River Valleys to the extent of which it declares by
law to be expedient in the public interest. 21 Entry 17 of List II in the Seventh Schedule gives the State
Legislature exclusive rights to legislate on all water within state territory subject to Entry 56, List I.
When one entry is made subject to another entry, it means that out of the scope of the former entry, a
field of legislation covered by the latter entry has been reserved to be specifically dealt with by the
appropriate legislature.22 This means that any enactment by the State Legislature is subject to Entry 56
only to the extent that it legislates on interstate rivers and river valleys. Conversely the Parliament may
only pass an enactment under entry 56, list I on interstate rivers and river valleys.
In Re Cauvery Water Dispute23, under entries 14, 17 & 18 of list II, the state legislature has competence to
legislate with respect to all water within its territory but so far as interstate rivers are concerned, the
powers shall be subject to Entry 56 of List I, which means that the State Legislatures powers relating to
regulation and development of interstate rivers shall be exercisable only so long and so far as the control
over the their regulation has not been taken over by a law of parliament passed under Entry 56 of List I.
To ascertain the true character of law, the Court must point out in which of the three lists an act of that
nature truly falls. In understanding the substance of the impugned legislation, one must have regard to the
enactment as a whole, to its object and scope and the effect of its provision. 24 A mere verbal interpretation
of the legislation will not suffice.25
20 Section 3 of the Linking of Rivers Act 2010 states, Subject to the provisions of this Act, the Central Government,
shall have the power to take all such measures as it deems necessary or expedient for the availability and accessibility
of water and linking of river all over the country.
21 Entry 56 of List 1 in the Seventh Schedule, Constitution of Aressia.
22 Mahabir Prasad Jalan v. State of Bihar, AIR 1991 Pat.40 (Para 46)
23 AIR 1992 SC 522 (Paras 7,11)
24 Prafulla Kumar v. Bank of Commerce, AIR 1947 PC 60.

MEMORANDUM FOR PETITIONER

18

When Legislative competency of the legislature with the regard to a particular enactment is challenged
with reference to entries in different legislative lists, because a law dealing with a subject in one list
within the competency of the legislature concerned is also touching on a subject in another list not within
the competency of that legislature. When this happens, the Doctrine of Pith and Substance applies.26
The First Phase of the linking of rivers project involves six states whose rivers currently, exclusively
belong to them and only on implementation of the project will they become inter-state rivers. 27 The
Legislative Powers of the legislature of the Union and the States are limited by the provisions relating to
distribution of powers and other mandatory limitations imposed by different provisions of the
constitution.28
The Linking of Rivers Act, 2010 by giving powers to Central Government under Section 3, legislates
upon rivers exclusively belonging to the states and The Parliament is therefore legislating upon matters
outside its scope of competency. A law passed without legislative competency is void ab initio 29 and
nothing can be done to cure such a law.30
III. Whether, the exclusion and non-implementation of Linking of River project for the state of Vindhya
is violative of fundamental rights of people of State of Vindhya and State of Normanda?
1. Whether, there is a violation of Article 14 of the Aressian constitution?
The petitioner submits that the decision taken by the central government, directing the ALR to
exclude the state of Vindhya from the first phase of ILR project is arbitrary. Equality is antithetic to
arbitrariness and where an act is arbitrary, it is implicit in it that it is unequal.

25 Subramaniam Chettiyar v. Muthuswami Goudan, AIR 1941 FC 47, 51

26 E.V.Chinnaiah v. State of AP. , (2005) 1 SCC 394.
27 Paragraph 9 of the Facts.
28 Automobile Transport v. State of Rajasthan, AIR 1958 Raj, 114 (119) F.R.
29 R.M.D Chamarbauguala V. The Union of India, AIR 1957 S.C. 628 (633).
30 Rehman Shagoo v. State of Jammu and Kashmir, AIR 1960 SC 1 (6).
31 E.P. Royappa v. State of T.N. (1974) 4 SCC 3

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31

19

In Maneka Gandhi v. Union of India32 it was observed that Article 14 strikes at arbitrariness in State
action and ensures fairness and equality of treatment. It further observed that the principle of
reasonableness is an essential element of equality.
Further, the Wednesbury case33 establishes that an unlawful decision is one to which, no reasonable
authority could have come. Reasonable and non-arbitrary exercise of power is an essential
requirement of Article 14.34 The discretion that is entrusted to the state must be exercised reasonably,
and its relevance to the furtherance of public policy, or public good must be firmly established. 35 If an
executive decision is violative of fundamental rights36, oversteps any constitutional provision or bar,
then it is vitiated37.
Further, discretionary action taken without the application of mind will be annulled as an arbitrary
exercise of power.38 When the Government exercises discretion arbitrarily, such exercise is to be
struck down.39 Every State action must be informed by reason and it follows that an act not informed
by reason is per se arbitrary.40

32 (1978) 1 SCC 248

33 Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223It is true that discretion must be
exercised reasonably. This includes, for instance, that a person entrusted with
a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound
to consider.

34 Shrilekha Vidyarthi v. State of U.P. , (1991) 1 SCC 212; Style (Dress Land) v. Union Territory of Chandigarh
(1999) 7 SCC 89
35 Consumer Action Group v. State of T.N. (2000) 7 SCC 425
36 Rao v. India, AIR 1971 SC 1002
37 State of M.P v. Nandlal, AIR 1988 SC 251
38 Onkar Lal Bajaj v. Union of India, (2003) 2 SCC 673
39 Harminder v. Union of India AIR 1986 SC 1527

40 Banari Amman Sugars Ltd. v. CTO (2005) 1 SCC 625

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The respondent has argued that exclusion of the State of Vindhya from the ILR project is an
international obligation under the RAMSAR convention. 41 However in Reid v. Covert42, The SC of
the U.S.A held that international obligations cannot override constitutional guarantees.
It is further submitted that the Wetlands (Conservation and Management) Rules, 2010 was enacted as
Aressia is signatory to the RAMSAR convention. S.2 (1) (g) of the said rules excludes main river
channels from the definition of wetlands. Therefore it is not understood how the respondent can
justify the exclusion of rivers in the name of protection of wetlands. Further, local law must be given
preference when there is a conflict with international law.43
The state of Normanda is suffering from an acute scarcity of water 44. It is further submitted that this
act of the Central Government contradicts Section 3 of Linking of Rivers Act, 2010 45 which provides
powers to ensure availability of water and linking of rivers all over the country. The ALR constituted
under Section 3 (3)46 of the act is supposed to exercise powers necessary for linking of rivers across
the country.
2. Whether, there is a violation of Article 21 of the Aressian constitution?
The petitioner submits that the decision of the Centre violates Article 21. 47 The right to life includes
the right to live with human dignity and all that goes with it. Every Act which offends against and
41 Paragraph 12 of the fact sheet.
42 354 U.S. 1 (1957)
43 ADM Jabalpur v. Shukla, AIR 1976 SC 1207
44 Para 12 of the facts
45 subject to the provisions of this Act, the Central Government, shall have the power to take all such measures as it deems
necessary or expedient for the purpose of ensuring availability and accessibility of water and linking of rivers all over the
country

46 Section 3 (3) provides for the constitution of an authority for the exercise of such powers and performance of such functions
which are necessary for the linking of rivers across the country Para 6 of the facts.

47 Article 21 of the Aressian constitution : No person shall be deprived of his law or personal liberty except according
to procedure established by law.

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impairs human dignity would constitute deprivation pro tanto of this right to live and it would have
to be in accordance with reasonable,fair and just procedure established by law which stands the test
of other fundamental rights.48
Water, one of the greatest gifts of nature is an attribute to right to life. 49 The right to water and a duty
on the state to provide clean drinking water to its citizens has been recognized under Article 21 of the
Indian constitution.50The Right to life and personal liberty is the most precious, sacrosanct,
inalienable and fundamental of all the fundamental rights of the citizens. 51 It is the bulwark against
the infringement of the fundamental rights by the state instrumentalities.52
The State of Normanda is facing an acute scarcity of water. Out of 12 rivers from the state of
Vindhya, 8 were to be linked with Normanda. 53 The exclusion of Vindhya from the ILR project will
deprive the farmers of the water that has been guaranteed to them under Article 21.
3. Whether there is a violation of Article 19 (1) (g) of the Aressian constitution?
The petitioner submits that the decision taken by the central government, directing the ALR to
exclude state of Vindhya from the first phase of ILR Project is restricting the freedom of the farmers
to practice agriculture. This act violates Article 19(1) (g) of the Aressian constitution.54
The object of using the four analogues and overlapping words in Article 19(1)(g) is to make the
guaranteed right as comprehensive as possible to include all the avenues and modes through which a
man may earn his livelihood.55
48 Francis Coralie v. Union Territory of Delhi (1981) 1 SCC 608
49 M.C mehta v. State of Orissa AIR 1992 ori 225
50 Narmada bachao andolan v. Union of India (2000 ) 10 SCC 664 ; A.P Pollution control board 2 v.M.V Nayudu
(2001 )2 SCC 62
51 M.C Mehta v. Union of India AIR 1987 SC 1086
52 Nilabati Behera (Smt.) alias Laita Behera v. State of Orissa AIR 1993 SC 1960
53 Para 12 of the facts
54 Article 19(1)(g) :It gaurantes that all citizens have the right to pratice any profession or to carry on occupation or
trade or business.

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Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the
interest of the general public.56 The phrase reasonable restriction connotes that the limitation
imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature
beyond what is required in the interest of the public.57
Any uncontrolled, arbitrary administrative discretion to restrict a citizen right in respect of trade,
business, industry cannot be permitted as it would be imposing an unreasonable restriction outside
the scope of clause (6) of Article 19.58

IV.

Whether the Linking of Rivers Act, 2010 violates the environmental rights of citizens of Aressia
and the provisions of the Forest (Conservation) Act, 1980?
1. Whether there is a violation of environmental rights?
It has become a facet of law through various judgments of the SC, that the right to environment is
inalienable from the right to life as envisaged under Article 21 of the Aressian Constitution. 59 It was
observed that the right to life includes the right to live with human dignity and all that goes with it. 60
The stress is now on sustainable development, on meeting the needs of the present without
compromising the needs of future generations.61
Interlinking of Rivers will cause severe Environmental degradation. The pollution and exhaustion of
groundwater in costal aquifers are potential hazards to the coasts. Through networking of rivers, the

55 Sodan singh v.New delhi municipal committee. (1989) 4 SCC 155

56 Pathumma v. State of Kerala, AIR 1978 SC 771(777) : (1978) 2 SCR 537 : (1978) 2 SCC 1.
57 Chintaman Rao v. State of Madhya Pradesh AIR 1951 SC 118(119)
58 Corporation of calcutta v. Calcutta tramways Ltd, AIR 1964 SC 1279 ; Govindji v. Deputy controller of Imports
and Exports, 1969 SCJ 93.
59 T. Damodhar Rao v. S.O. Municipal Corpn, Hyderabad, AIR 1987 AP 171; Indian Council for Enviro Legal
Action c. Union of India, (1996) 5 SCC 281; Vellore Citizens Welfare Forums case supra,; M.C. Mehta v. Union of
India (1997) 2 SCC 411; M.C. Mehta v. Union of India, (1998) 9 SCC 589; Narmada Bachao Andolan v. Union of
India, (2000) 10 SCC 664
60 Francis Coralie v. Union Territory of Delhi (1981) 1 SCC 608
61 Intellectuals Forum, Tirupathi v. State of A.P,AIR 2006 SC 1350; Goa Foundation & Ors. v. State of Goa

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government shall divert water resources that replenish underground aquifers. 62 The region 200 meters
from the high tidal line is the most sensitive region of the coastal belts. Inflow of waters, coupled
with littoral drift will cause substantial deposits of silt. 63 Mangrove swamps, which are an essential
feature of coastal protection will also be hit hard. 64
Case studies in the Green and Colorado rivers, where reservoir development activities significantly
altered stream flow, suggest significant hydrological imbalance. 65 Trees, which are natural
contributors to the hydrological cycle, will be cut down in large scale, throwing the cycle off
balance.66
Reservoirs are known to cause earthquakes, as the added pressure of the water increases stress on the
sub terrain.67 Construction of dams has several negative impacts from displacement to causing
diseases.68

62 P.B SAHASRANMAN, LAW OF ENVIRONMENTAL PROTECTION pp 199-200.

63 Gopinathan, C P and Qasim, S Z (1971) Silting In Navigational Channels Of The Cochin Harbour Area. Journal
of the Marine Biological Association of India, 13 (1). pp. 14-26; H-Sense Report (Harbours Silting and
Environmental Sedimentology)
64 Interlinking of Rivers: Implications to Coastal Environments, Kakani Nageswara Rao: Any interruptions in the
balancing forces of the riverine and marine processes would lead to serious environmental implications. For instance,
reduction in freshwater supply at the estuaries would destroy mangrove swamps that at present occupy about
2,750km2 area at the major deltas of east coast of India alone, play an important role in coastal stability by promoting
deposition and preventing erosion, providing protection to coastal communities by buffering the impacts of storm
surges and sheltering many types of fauna including fish.
65 A spatial assesmment of hydrological alteration in a river network, Brian D. Richter, Jeffrey V. Baumgartner,
David P. Braun & Jennifer Powell The structure and persistence of native biotic communities within river ecosystems
is strongly influenced by both spatial and temporal variations in environmental conditions. Spatially complex riverine
environments present diverse habitats along longitudinal, lateral and vertical dimensions. The stream-flow regime is a
driving force in such river ecosystems for stream-flow controls key habitat parameters.
66 RIVER INTERLINKING IN INDIA, THE DREAM AND REALITY, SITA RAM SINGH, MOHAN
SHRIVASTAVA, p 245
67 Can Dams and Reservoirs Cause Earthquakes? Triggering Earthquakes by Ramesh Chander, Resonance, 1999,
p11:

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River networking may also affect fish feeding and breeding habitats in the rivers and lakes in the
water donor zones. There is also severe risk of decrease in genetic diversity of the fish population.69
Alteration of river courses from their established terrain will lead to unforeseen catastrophes. 70
Diversion of rivers in to new land masses will lead to problems like bank instability. Structural
stability of the canals will suffer from heavy water flow. Erosion and consequent shifting of the water
course will be inevitable.71
The ACLU in its petition cited that the shortage of water was due to increased extraction of ground
water by industries and that pollution of river waters was due to industrial waste among other causes.
Its study report suggested that decrease in the number of rivers from 1960s 782 to 1980s 564 was
due to industrialisation and development. This number has further decreased to 324, out of which
50% are highly polluted and unfit for irrigation. 72 With Industries being one of the major causes of
the decline of rivers, it is troubling that the Prime Minister has pledged to ensure availability of water
for not only the people to whom it is a necessity but also to the original polluters, the industries. 73
There is huge risk for large scale pollution if the waters of the linked rivers were to be made available
to the industries.
The project was originally shut down by the previous government due to criticism from various state
governments who are worried about the environmental impacts and also NGOs who criticised it as a
68 Environmental Impact of Dams Monosowski, E, International Water Power and Dam Construction Vol. 37, No. 4,
p 48-50 and 61, April, 1985 in addition to their benefits, water projects in many countries have been the source of
significant environmental change, unexpected diseases, the impoverishment of aquatic fauna and decrease of water
quality. Local people have been seriously affected by resettlement.
69 Impact of Inter River Basin Linkages on Fisheries, National Academy of Agricultural Sciences, July 2004: Each
river system has distinct groups of biota different from other water bodies. When environment is altered, they
are affected, with particular threat to endangered and endemic species. The linkage of rivers could also lead to loss
and homogenisation of genetic diversity of fishes.
70 JUSTICE T S DOABIA, ENVIRONMENTAL AND POLLUTION LAWS IN INDIA, WADHWA NAGPUR,
(2005) VOLUME I, p690
71 American Institutes of Biological Sciences ; United States Geological Survey ; River Environment Classification
Systems of New Zealand ; Rao, K.L. (1975) India's Water Wealth. Orient Longman Ltd., Hyderabad, New Delhi
72 Para 3 of the facts.
73 Para 8 of the facts.

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political move to provide water to the industries of some states.74 This is further substantiated by the
fact the new government originally included the State of Vindhya on the list of states in phase 1 of
the project. The state had to submit a report from an EIA committee that it constituted to show the
Centre that it had a protected wetland, the largest in Aressia and that the project would harm it.75
That the Centre even envisaged including the state in the project puts serious doubts on its
commitment to sustainable development, environmental rights of the people and the reports of the
originally constituted EIA committee. This supports the allegations made by certain members of the
EIA committee appointed by the Centre including two members who were representatives of the
same, that there was political pressure for a favourable EIA report. In that same interview, it was also
disclosed that the project would result in the submergence of land, destruction of forest and wildlife
and disturb the ecological balance in certain states. 76
2. Whether there is violation of the provisions of the Forest Conservation Act, 1980?
S.2 of the 1980 Act begins with a non obstantate clause when giving the State Government power to
perform activities in forests including non-forest activities with the permission of the Central
Government. A non obstantate clause is appended to a section in the beginning, with a view to give
the enacting part of the section in case of conflict an overriding effect over the provision or Act
mentioned it that clause.77 It is equivalent to saying that in spite of the provision or Act mentioned in
such clause, the enactment following it will have its full operation. 78 Such a clause maybe used as a
legislative device to modify the ambit of the law mentioned in the clause 79 or to override it in
circumstances.80

specified

74 Para 7 of the facts.

75 Para 11 of the facts.
76 Para 15 of the facts.
77 Union of India v. G.M. Kokil, 1984 (Supp) SCC 196
78 South India Corporation (P) Ltd v. Secy., Board of Revenue, Trivandrum, AIR 1964 SC 207 (215)
79 Pannalal Bansilal Patil v. State of Andhra Pradesh, 1996 (1) Scale 405 (415).
80 T.R.Thandur v. Union of India, AIR 1996 SC 1643.

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It is submitted that the phrase notwithstanding anything in is in contradistinction to the phrase

subject to.81 The wide meaning of the non obstantate clause and the enacting words following it
cannot be curtailed when the use of wide language accords with the object of the Act as was seen
with the Forest Conservation Act, 1980.82 It is submitted that S.3 of the Linking of Rivers Act, 2010
makes the powers that it provides to the Central Government subject only to other provisions within
the Act, effectively violating S.2 of the Forest Conservation Act, 1980. The latter Act allows States to
perform certain activities in forests with the permission of the Central Government but it does give
any power to the latter to exercise the power of the States. However, the wide wording of the S.3 will
allow the Central Government to exercise its powers on the forests and removes the states out of the
picture.
It is submitted that the Forest Conservation Act, 1980 is a special statute in comparison to the
Linking of Rivers Act, 2010 because of the latters wide and general nature as seen in S.3 of the Act.
Classification of acts as general or special must be made with reference to the context in each case
and the subject matter dealt with by each statute. It was observed that most Acts can be classed as
general Acts from one point of view and special Acts from another.83 A special law is taken as one
that is exhaustive in the subject that it enacts 84 while a general law is unlimited, both in its parliament
and, as regards the individual, in its effects. 85 It is a familiar rule that a special statute controls a
general one without regard to priority of enactment.86

81 Punjab Sikh Regular Motor Service, Moudhapara, Raipur v. Regional Transport Authority, Raipur, AIR 1966 SC
1318.
82 Rural Litigation and Entitlement Kendra v. State of UP., AIR 1988 SC 2187.
83 Thammayya v. Rajah Tyadapusapati, AIR 1930 Mad 963.
84 Pushpa Bai v. Sulochana Menon (1959) 1 Andh WR 363.
85 R v. London CC (1893) 2 QB 454 (462).
86 Bulova Watch Co v. United States, 365 US 753.

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It has been recognised that a special Act overrides the general in cases that deal with the same subject
matter87 special statutory provisions prevail over general provisions.88 In this case forest, activities
fall under the many wide powers that S.3 of the Linking of Rivers Act, 2010. It is clear that S.3 of the
2010 act violates S.2 of the 1980 Act which should be given overriding effect.

PRAYER

In light of the legal precedents and principles cited; and in light of the provisions of the Constitution
applied and arguments advanced; and in light of the scientific studies relating to the issue referred to,
the Petitioners most humbly prays that the Supreme Court:
1. Hold that the petition filed by the FER is maintainable under Art 226 in the High Court of Neruda.
2. Declare S.3 of the Linking of Rivers Act as being ultra vires to the Constitution of Aressia,
violating Art 246.
87 Authorised Officer v. M. Ramaswamy Gounder (1983) MAD LJ 269.
88 Carona Sahu Co v. VK Goyal, AIR 1979 Raj 1.

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3. Issue a writ of mandamus directing the Central Government to reinstate the State of Vindhya in
the Interlinking of Rivers project.
4. Hold the Linking of Rivers Act, 2010 as being violative of the Environmental rights of the people
of Aressia and also as violating the provisions of the Forest (Conservation) Act, 1980.

MEMORANDUM FOR PETITIONER