Legal Challenge to Sand Quarrying in Matil Danu: A Public Interest Litigation Case, Study notes of Law

Download Legal Challenge to Sand Quarrying in Matil Danu: A Public Interest Litigation Case and more Study notes Law in PDF only on Docsity! Before THE HONOURABLE HIGH COURT OF MATIL DANU Under Article 226 of the Constitution of Hindia GREEN CANVAS …………………………...………………………………PETITIONER v. STATE OF MAMATIL DANU ……….…..................……………….……RESPONDENT P a g e | ii MEMORIAL ON BEHALF OF THE PETITIONER TABLE OF CONTENTS INDEX OF AUTHORITIES..................................................................................................iv STATEMENT OF JURISDICTION.....................................................................................vi STATEMENT OF FACTS....................................................................................................vii ISSUES RAISED.....................................................................................................................ix SUMMARY OF ARGUMENTS.............................................................................................x ARGUMENTS ADVANCED..................................................................................................1 1. The Public Interest Litigation filed by Green Canvas under Article 226 of The Constitution of Hindia is Maintainable………………………………………………..………….………1 2. The order passed by the Tribunal is beyond jurisdiction and perpetuates illegality……..…2 2.1 The impugned order of NGT allowing the State Government to continue quarrying operation for 6 months is beyond the power of NGT……………………………….…..….2 2.2 The impugned order of the NGT perpetuates illegality and hence is an error manifest on the face of the record………………………………………………………….…………....3 PRAYER.............................................................................................................................….xi P a g e | v MEMORIAL ON BEHALF OF THE PETITIONER BOOKS REFERRED:  Basu D.D., Commentary of the Constitution of India, (8th ed., 2011), Vol.1.  Basu D.D., Commentary of the Constitution of India, (8th ed., 2011), Vol.2.  Basu D.D., Commentary of the Constitution of India, (8th ed., 2011), Vol.9.  Datar A.P., Datar on Constitution of India, (1st ed., 2001), Wadhwa and Co.  Jain M.P., Indian Constitutional Law, (6th ed., 2010), Lexisnexis Butterworths Wadhwa, Vol.1.  Kashyap S.C., Constitution of India, (2006), Universal Law Publishing Co.  Sathe S.P., Administrative Law, (7th ed., 2004), Lexis Nexis Butterworths Wadhwa.  Seervai .H.M., Constitutional Law of India, (4th ed., 2010), Universal Law Publishing Co., Vol.2.  Seervai H.M., Constitutional Law of India, (4th ed., 2010), Universal Law Publishing Co., Vol.1. WEBSITES REFERRED:  www.lexisnexis.com (last visited on 25th October, 2014).  www.judis.nic.in (last visited on 26th October, 2014).  www.manupatra.com (last visited on 26th October, 2014).  www.scconline.com (last visited on 25th October, 2014). LEGAL DICTIONARIES:  Aiyer P.R., Advanced Law Lexicon, (3rd ed., 2005).  Greenberg Daniel, Stroud’s Judicial Dictionary of Words and Phrases, (4th ed.), Sweet and Maxwell, Vol. 4.  Mish F.C., Merriam-Webster's Collegiate Dictionary, (11th ed. 2003).  Garner B.A., Black’s Law Dictionary, (9th ed., 2009).  Oxford Advanced Learners Dictionary, (7th ed., 2008). P a g e | vi MEMORIAL ON BEHALF OF THE PETITIONER STATEMENT OF JURISDICTION THE PETITIONER HAS FILED THE PUBLIC INTEREST LITIGATION BEFORE THE HON’BLE HIGH COURT OF MATIL DANU, IN THE MATTER OF GREEN CANVAS v. STATE OF MATIL DANU, UNDER ARTICLE 2261 OF THE CONSTITUTION OF HINDIA. THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND ARGUMENTS. 1 Power of High Courts to issue certain writs (1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose (2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated. (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause (2) of Article 32. P a g e | vii MEMORIAL ON BEHALF OF THE PETITIONER STATEMENT OF FACTS For the sake of brevity and convenience of the Hon’ble Court the facts of the present case are summarised as follows: 1. Hindia is a South Asian country, having second largest population in the world. Due to globalisation, there is a rapid development in the Hindia specifically in its southern coastal State of Matil Danu. Due to unchecked increase in sand quarrying mining, The High Court of Matil Danu, directed the State Government to constitute a Committee of Experts to study the river and river beds in the State with particular reference to the damage caused on account of indiscriminate sand quarrying operations. The Government inserted Rule 38A of the Matil Danu Minor Mineral Concession Rules, on basis of recommendation of committee whereby all existing leases for quarrying sand ceased to be effective and right to quarry sand vested only with the Government. 2. In the year 2010, various writ petitions were filed in The High Court of Matil Danu 2010 batch of cases, with regard to indiscriminate sand quarrying operations in the river swachjal. The Division Bench of The High Court of Matil Danu, modifying its earlier order permitted two poclains to be used, during restricted timings. Thereafter,various writ petitions were filed, to forbear the respondent from carrying on sand quarrying operations alongside the stretches of the rivers of Swachjal. The Division Bench The High Court of Matil Danu disposed of the said writ petitions by order stating permission for fresh sand quarrying operations in the river Swachjal could be granted only after getting environmental clearance from the State Environment Impact Assessment Authority [SEIAA] and the Office Memorandum of the Ministry of Environment and Forest [MoEF]. The Bench directed some of the existing quarries to be either stopped forever or to be started after getting environmental clearance. 3. Finding no response from the MoEF, the SEIAA granted environmental clearances on 30.11.2012, on the basis of the guidelines framed by it. These clearances by the SEIAA to the Executive Engineer of the Public Works Department of the Government of Matil Danu were challenged by various Farmers’ Associations and Environmentalists by way of various appeals under Section 16 of the National Green Tribunal Act, 2010. The National Green Tribunal disposed of all the appeals holding that in view of the guidelines issued by the MoEF, the guidelines issued by the SEIAA and the environmental clearances P a g e | x MEMORIAL ON BEHALF OF THE PETITIONER SUMMARY OF ARGUMENTS 1. THE PUBLIC INTEREST LITIGATION FILED BY GREEN CANVAS UNDER ARTICLE 226 OF THE CONSTITUTION OF HINDIA IS MAINTAINABLE. A group of environmentalist known as ‘Green Canvas’, filed a petition under Article 226 of the Constitution of Hindia. The petitioners, Green Canvas, have the locus standi to file the said petition to protect the environment in public interest, as the tribunal allowed the state government to continue quarrying operations for a period of 6 months on the basis of the environmental clearances granted by the State Environment Impact Assessment Authority (SEIAA). On the ground of jurisdiction and error of law apparent on the face of the record, the superior court can grant certiorari notwithstanding the existence of an alternative remedy by way of appeal or the like. 2. THE ORDER PASSED BY THE TRIBUNAL IS BEYOND JURISDICTION AND PERPETUATES ILLEGALITY. The National Green Tribunal (NGT) went beyond its jurisdiction to allow Public Works Department (PWD) to continue the quarrying operation for a period of 6 months. Also, the order of the tribunal contains a manifest error on the face of the record by allowing PWD to be governed by the guidelines and clearances granted by the SEIAA when the same had been already lapsed, thereby perpetuating illegality. P a g e | 1 MEMORIAL ON BEHALF OF THE PETITIONER ARGUMENTS ADVANCED 1. THE PUBLIC INTEREST LITIGATION FILED BY GREEN CANVAS UNDER ARTICLE 226 OF THE CONSTITUTION OF HINDIA IS MAINTAINABLE. Black’s Law Dictionary defines Public Interest as: “Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national Government.”2 The word ‘litigation’ means a legal action, including all legal proceedings initiated in a Court of law with the purpose of enforcing a right or seeking a remedy.3 In People’s Union for Democratic Rights & Others v. Union of India & Others,4 the Hon’ble court defined Public Interest Litigation and observed that “Public interest litigation is a cooperative or collaborative effort by the petitioner, the State of public authority and the judiciary to secure observance of constitutional or basic human rights, benefits and privileges upon poor, downtrodden and vulnerable sections of the society.” In case of a certiorari, a stranger5 may be allowed, by the court, at its discretion, to apply for the writ in exceptional circumstances, viz., where the impugned order or decision- i) Involves a grave miscarriage of justice; ii) Has an adverse impact on public interest.6 The proceedings of judicial court or quasi-judicial bodies subordinate to the High Court can be subjected to the writ of certiorari.7 If the matter to be reviewed is one which affects the public at large,8 anyone can apply for a writ of certiorari.9 It is the duty of the High Court to quash an order which is manifestly illegal or ultra-vires.10 Therefore any member of the public or organisation may bring it for judicial scrutiny.11 Hence, the petitioners, ‘Green Canvas’ has the locus standi to file this PIL under Article 226 of the Constitution. 2 Garner B.A., Black’s Law Dictionary, (9th ed., 2009). 3 www.jurisdictionary.com, (Last visited on 19th October, 2014). 4 (1982) 3 SCC 235. 5 Satya Narayana Sinha v. S. Lal, AIR 1973 SC 2720. 6 Kalyan Singh v. State of UP, AIR 1962 SC 1183. 7 Surya Dev Rai v. Ram Chander Rai, AIR 2003 SC 3044. 8 Peoples’ Union for Democratic Rights v. Union of India, AIR 1982 SC 1473. 9 Jasbhai Motibhai Desai v. Roshan Kumar, AIR 1976 SC 578. 10 Fertilizer Corp. Kamgar Union v. Union of India, AIR 1981 SC 344. 11 Bandhua Mukti Morcha v. Union of India, 1984 SC 802. P a g e | 2 MEMORIAL ON BEHALF OF THE PETITIONER 2. THE ORDER PASSED BY THE TRIBUNAL IS BEYOND JURISDICTION AND PERPETUATES ILLEGALITY. Certiorari can be issued not only to quash the decision of an inferior court but also to quash the decision of any administrative body or tribunal which comes within the ambit of the technical term ‘quasi-judicial’.12 Certiorari can be issued under Article 226 in the following cases- 1. For correcting errors of jurisdiction as when an inferior court or tribunal acts, without jurisdiction or in excess of it or fails to exercise it.13 2. When the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving any opportunity to the parties to be heard or violates the principles of natural justice.14 3. The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous.15 4. An error in decision and determination itself may also be amenable to writ of certiorari, if it a manifest error apparent on the face of the proceedings,16 e.g. when it is based in clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not mere wrong decisions.17 2.1 The impugned order of NGT allowing the State Government to continue quarrying operation for 6 months is beyond the power of NGT. The tribunal cannot act beyond the limits of the jurisdiction conferred by the statute which created itself or subsequently conferred or modified its jurisdiction.18 It cannot invent a jurisdiction simply because it would be convenient that it should do so,19 or because the excess of jurisdiction would be only technical.20 Where a tribunal purports to exercise a power not given to it by the statute which created the jurisdiction,21 or exercises a power in disregard the condition laid down by the statue for its exercise or on extraneous 12 R. v. Electricity Commr., (1924) 1 KB 171 (CA). 13 Hari Vishnu Kamath v. Syed Ahmed, AIR 1955 SC 233. 14 Parry & Co. v. Commercial Employees Assn., AIR 1952 SC 179. 15 Veerappa Pillai v. Raman & Raman Ltd., AIR 1952 SC 192. 16 Custodian General of Evacuee Property v. Khan Saheb Abdul Shukoor, AIR 1961 SC 1087. 17 Ebrahim Aboobakar v. Custodian General of Evacuee Property, AIR 1952 SC 319. 18 Nagendra v. Commr., AIR 1958 SC 398 (408). 19 Cf. Cowley v. Cowley, (1901) AC 450. 20 R. v. Minister of Agriculture, (1955) 2 All ER 129 (138) (CA). 21 Nagendra Nath Bora v. Commr., Hills Division, AIR 1958 SC 398.