Memorial in behalf of petitioner, Thesis of Environmental Law

Download Memorial in behalf of petitioner and more Thesis Environmental Law in PDF only on Docsity! 7 th Pro Bono National Environment Law Moot - 2013 MEMORIAL ON BEHALF OF THE RESPONDENTS BEFORE THE HON’BLE SUPREME COURT OF RAMBO Original Writ Jurisdiction PUBLIC INTEREST LITIGATION W.P. (CIVIL) NO. ___ OF 2013 UNDER ARTICLE 32 OF THE CONSTITUTION OF RAMBO In the matter of Article 19 and Article 21 of Constitution of Rambo PRO BONO ENVIRO SOCIETY…………….………………………………..PETITIONER v. UNION OF RAMBO AND ANR. ………....…………………………………. RESPONDENTS UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF RAMBO MEMORANDUM ON BEHALF OF THE RESPONDENTS 7 th Pro Bono National Environment Law Moot - 2013 i MEMORIAL ON BEHALF OF THE RESPONDENTS TABLE OF CONTENTS Table of Contents ........................................................................................................................ i List Of Abbreviations .............................................................................................................. iii Index Of Authorities .................................................................................................................. v Statement of Jurisdiction............................................................................................................ x Statement of facts ...................................................................................................................... xi Statement of Issues ................................................................................................................ xiii Summary of Arguments .......................................................................................................... xiv Arguments Advanced................................................................................................................. 1 I. WHETHER THE PUBLIC INTEREST LITIGATION FILED AGAINST UNION OF RAMBO AND MARCO INTERNATIONAL LTD. IS MAINTAINABLE. ....................... 1 II. WHETHER THERE HAS BEEN VIOLATION OF THE FUNDAMENTAL RIGHTS OF INDIGENOUS PEOPLE. ................................................................................. 1 II.1. No special right guaranteed to the indigenous people under the Constitution .... 1 II.2. Right to movement of the People of Rambo ........................................................ 2 II.3. No violation of Article 19 of indigenous people ................................................. 2 II.4. No violation Article 21 of the Constitution ......................................................... 3 II.5. No forced assimilation or isolation, so no requirement of rehabilitation ............ 5 III. WHETHER UNION OF RAMBO AND MARCO INTERNATIONAL LTD. CAN BE MADE LIABLE FOR ENVIRONMENTAL DEGRADATION .................................... 6 III.1. Location of Construction Unit at a proper place .................................................. 6 III.1.1. Construction of sea wall permitted under The Coastal Regulation Zone Notification, 2011 .......................................................................................................... 6 III.1.2. Construction Unit in sensitive area ............................................................... 7 III.2. Marco International Ltd. not liable for Pollution ................................................. 7 III.2.1. No liability for Air Pollution ........................................................................ 7 III.2.2. No liability for Noise Pollution .................................................................... 8 III.3. Union of Rambo not liable for climate change in Pongean Sea .......................... 8 7 th Pro Bono National Environment Law Moot - 2013 iv MEMORIAL ON BEHALF OF THE RESPONDENTS Raj Rajasthan SC Supreme Court SCC Supreme Court Reports SCJ Supreme Court Journal Sec. Section u/a Under Article UDHR United Nations Declaration on human rights. UNFCCC United Nations Framework Convention on Climate Change, 1992 7 th Pro Bono National Environment Law Moot - 2013 v MEMORIAL ON BEHALF OF THE RESPONDENTS INDEX OF AUTHORITIES STATUTES 1.A.P.Pollution Control Board v. M.V.Nayudu, AIR 1999 SC 812 ................................ 4, 8 2.Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh and Ors., (2011) 5 SCC 29.................................................................................................................................... 3 3.Andhra Industrial Works v.. Chief Controller of Imports and Ors AIR 1974 SC 1539 ... 1 4.Bachan Singh v. State of Punjab, AIR 1980 SC 898 ........................................................ 2 5.BALCO Employees Union (Regd.) v. Union of India (2002) 2 SCC 333 ....................... 1 6.Bandhua Mukti Morcha v. Union Of India & Others , 1984 SCR (2) 67 ......................... 8 7.Banwaslseva Ashram v. State of U.P, AIR 1987 SC 374 ................................................. 5 8.Bennett Coleman and Co. and Ors. v. Union of India, (1972) 2 SCC 788 ....................... 3 9.BSES Ltd. v. Union of India 2001 (1) Bom CR 394 ...................................................... 10 10.Consumer Education And Research Centre And Others v. Union Of India And Others , Air 1995 SC 922 ............................................................................................................ 4 11.Court on its own motion v. Union of India, 2012(12) SCALE 307............................ 2, 4 12.Dahanu Taluka Environment Protection Group v. Bombay Suburban Electricity Supply Company Ltd. (1991) 2 SCC 539 .................................................................... 10 13.Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101 ................ 3 14.Express Newspaper Ltd. v. Union of India, AIR 1986 SC 872 ...................................... 4 15.Forum, Prevention of Envn. & Sound Pollution v Union of India and another, (2005) 8 SCC 796 ......................................................................................................................... 8 16.Francis Coralie v. Union Territory Of Delhi, Air 1994 SC 1844 ................................... 4 17.G. Sundarrajan v Union Of India And Others JT 2013 (7) SC 266 ................................ 8 18.Guruvayur Devaswom Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546 ........................................................................................................................................ 1 19.In Re: Airports Authority of India Ltd. , AIR 1999 SC 2367 ......................................... 7 7 th Pro Bono National Environment Law Moot - 2013 vi MEMORIAL ON BEHALF OF THE RESPONDENTS 20.Kharak Singh v. State of U.P, AIR1963SC1295 ............................................................ 2 21.Kuttisankaran Nair v. Kumaran Nair, AIR 1965 Ker 161 .............................................. 2 22.LIC v. Consumer Education and Research Centre, AIR 1995 SC 1811......................... 4 23.M C Mehta v. Kamal Nath, [1997] 1 SCC 388 .............................................................. 4 24.M S Bhut Educational Trust v. State of Gujarat, AIR 2000 Guj 160 ............................. 4 25.Mahesh Chandra v. Regional Manager, U.P. Financial Corpn, AIR 1993 SC 935 ........ 3 26.Malverer v. Spinke (1537) Dyer, (Part I), 356 .............................................................. 10 27.Maneka Gandhi v. Union of India.AIR 1978 SC597...................................................... 3 28.Nand Kishore Gupta and Ors. v.State of Uttar Pradesh and Ors. AIR 2010 SC 3654 ... 8 29.Narmada Bachao Andolan v. Union Of India (2000) 10 SCC 664 ............................ 4, 5 30.Netai Bag v. State of West Bengal, AIR 2000 SC 3313 ................................................. 4 31.Om Kumar v. Union of India, AIR 2000 SC 3689 ......................................................... 4 32.Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest, Vishaka v. State of Rajasthan, (1997) 6 SCC 241 ........................................................................... 2 33.People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473 .............. 2 34.Ramsumaran Prasad v. ShyamKumari ,1922 AIR P.C. 856 ........................................... 7 35.Rekharani Maitra & Ors. v. Additional District Magistrate & Ors. C.R. No. 9063 (W) of 1983 ........................................................................................................................... 9 36.Research Foundation For Science Technology And Natural Resource Policy v. Union Of India And Others, AIR 2007 SC (Supp) 852 ............................................................ 5 37.S. Jagannath v Union of India and Others,W.P.(C) No. 561 of 1994 ............................. 8 38.S.R Bommai v. Union of India, (1994) 2 SCR 644 ........................................................ 3 39.Sachidanand Pandey and Anr.v. State of West Bengal and Ors. (1987) 2 SCC 295 ...... 3 40.Sadhuram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 1471 ....................................... 3 41.State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And Others, Civil Appeal Nos. 104-105 Of 2001 ......................................................... 1 7 th Pro Bono National Environment Law Moot - 2013 ix MEMORIAL ON BEHALF OF THE RESPONDENTS 4. Forest (Conservation) Act, 1980 5. Indian Forest Act, 1927 6. Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forests Right) Act, 2006. 7. Coastal Regulation Zone Notification, 2011 8. Coastal Regulation Zone Notification, 1991 9. Wildlife Protection Act, 1972 10. Panchayats (Extension to the Scheduled Areas) Act, 1996 CONVENTIONS 1. United Nations Framework Convention on Climate Change, 1992 2. Convention Of International Trade In Endangered Species Of Wild Fauna And Flora 1975 3. Convention on Migratory Species, 1983 4. The Indigenous and Tribal Populations Convention, 1957 (ILO Convention 107) 5. The Rio Submit, 1992 6. United Nation Declaration of Human Rights, 1948 7. International Convention on Civil and Political Rights, 1966 8. International Covenant on Economic, Social and Cultural Rights, 1966 9. United Nation Declaration on Indigenous People, 2007 7 th Pro Bono National Environment Law Moot - 2013 x MEMORIAL ON BEHALF OF THE RESPONDENTS STATEMENT OF JURISDICTION The Honourable Supreme Court of Rambo has the jurisdiction in this matter under Article 32 of the Constitution of Rambo which reads as follows: “32. Remedies for enforcement of rights conferred by this Part (1)The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2)The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.” 7 th Pro Bono National Environment Law Moot - 2013 xi MEMORIAL ON BEHALF OF THE RESPONDENTS STATEMENT OF FACTS 1. The “Republic of “Rambo” is an island in the Pongean Sea. It has a lush topography. It is the tenth largest country in the world with a land area measuring 21,30,500 square kilometres, one of the fastest developing countries and the most populated country as well.. There are two national political parties,Democratic People Front (DPF) and Liberal People Front (LPF) and several regional parties. The country has ratified various international treaties such as UDHR, ICESER, UNFCCC. The Republic of Rambo on account of its coastline faces natural disasters frequently. 2. In February 2005, the government headed by DPF had proposed various developmental projects including environmental projects in the country. It had constituted a Committee to control Environmental hazards. In November 2005, the Committee had submitted its report suggesting various recommendations including reduction of carbon emissions, construction of sea walls and disaster management. 3. In February 2010, LPF came to power. In March 2011, an expert committee headed by the former Chief Justice of Rambo, Hon‟ble J. Tikishaki was constituted for analysing the feasibility of implementation of the project among other things. 4. The committee recommended a revisit to the Disaster Management Program of the country stressing on the need to remove industries from the coastline which were adding to the pollutants and, to protect the fragile environment zones in the Country. 5. The Union Territory of Roah is an island that is not connected to the mainland of Rambo. It lies 200 kilometres off the eastern coast of the country. The extent of land in Roah is 5,13,500 square kilometres. Its topography includes lush mangrove forests. These forests consist of the indigenous population “Karyos” who are untouched by civilization. The people worshiped nature and followed traditional methods. The eastern coastline of Roah consists of rich forest reserves called Nacro forest. 6. In April 1989, 2, 10,000 square kilometres of Roah were declared as reserved forests. The Kayos were not relocated since, they were key to the protection of the environment and the forests 7. Due to population growth, land space became scarce in Rambo and thus, the unexplored civilization of the island of Roah was brought to light. The people in the mainland started moving to Roah. The price of land in Roah increased manifold 7 th Pro Bono National Environment Law Moot - 2013 xiv MEMORIAL ON BEHALF OF THE RESPONDENTS SUMMARY OF ARGUMENTS Issue I Whether the Public Interest Litigation filed against Union of Rambo and Marco International Ltd. is maintainable. It is humbly submitted that, since Fundamental Rights of any group of Individuals have not been violated, the petition is not maintainable. Issue II Whether there has been violation of the rights of the Indigenous People. It is humbly submitted that, no violation of the rights of the Indigenous people has occurred since, no special right is per se granted to the Indigenous people in Rambo. Also, the Government was only safeguarding the right to free movement as guaranteed under Article 19 of the migrant population. The Cutting of forests of Roah wasn’t arbitrary as the Government followed the principle of Social and Economic Justice, thus, meeting the test of reasonableness. It is further submitted that since no right has been violated the need for rehabilitation doesn’t arise. ISSUE III Whether Union of Rambo and Maraco International Ltd. can be made liable for environmental degradation The Union of Rambo and Maraco International Ltd. cannot be made liable for the degradation of environment, since, the sea wall construction site which was located on the coast was out of extreme necessity and so the company is not liable for the pollution. Further, the Union of Rambo is not liable for climate change in Pongean Sea, since, the claim is based on a report whose validity cannot be corroborated, following which both Union of Rambo and MIL are not liable to pay compensation. 7 th Pro Bono National Environment Law Moot - 2013 1 MEMORIAL ON BEHALF OF THE RESPONDENTS ARGUMENTS ADVANCED I. WHETHER THE PUBLIC INTEREST LITIGATION FILED AGAINST UNION OF RAMBO AND MARCO INTERNATIONAL LTD. IS MAINTAINABLE. A Public Interest Litigation can be filed under Article 32 of the Constitution for enforcement of Fundamental Rights 1 , as guaranteed by part III of the Constitution. 2 In the present case, there has been no violation of the fundamental rights since, the action taken by the State was in furtherance of the principle of economic and social justice and thus cannot be termed as arbitrary or as one which was without the application of the mind. Also, on allegations of Air Pollution, since the High Court has already adjudicated upon a similar dispute the facts being silent as to whether the same was followed or not, no action against MIL lies. Further, no scientific data per se has been provided from the side of the petitioner to substantiate its allegations as regards to either air or water pollution and hence the PIL is not maintainable. II. WHETHER THERE HAS BEEN VIOLATION OF THE FUNDAMENTAL RIGHTS OF INDIGENOUS PEOPLE. The fundamental rights of the indigenous people have not been violated since [II.1] No special right is guaranteed to them under the Constitution[II.2] No violation of Article 19; [III.3] and Article 21 of the Constitution 3 ; [II.4] No violation of fundamental rights because of forced assimilation or isolation, therefore, no rehabilitation is required. II.1. No special right guaranteed to the indigenous people under the Constitution The term “indigenous people” is not recognized in India 4 and so the indigenous people have not been guaranteed any special status, per se, unless recognized under the Constitution as Scheduled Caste or Scheduled Tribe. Therefore, all the tribals are considered to be indigenous, but all indigenous people are not considered as tribal 5 . To be safeguarded under 1 Article 32(1) when r/w 32(2) itself states that, Article 32 can only be invoked for enforcement of rights as guaranteed by Part III and, for issuing writs to enforce Rights as guaranteed under Part III. 2 Andhra Industrial Works v.. Chief Controller of Imports and Ors AIR 1974 SC 1539 ¶ 10, Guruvayur Devaswom Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546 ¶ 50, BALCO Employees Union (Regd.) v. Union of India (2002) 2 SCC 333. 3 Constitution of Rambo is Pari Materia to Constitution of India [hereinafter referred as Constitution ] 4 Convention on Indigenous People, Available at http://www.ilo.org/wcmsp5/groups/public/---ed_norm/ normes/documents/publication/wcms_106474.pdf, Last Accessed 18 th October 2013. 5 State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And Others, Civil Appeal Nos. 104-105 Of 2001. 7 th Pro Bono National Environment Law Moot - 2013 2 MEMORIAL ON BEHALF OF THE RESPONDENTS Article 244(1) of the Constitution as Scheduled Caste and Scheduled Tribe the President has to recognize the indigenous people as Scheduled Tribe and Scheduled Caste or the area as the Scheduled area under Article 341 and 342 of the Constitution. In the present case, the indigenous population “Karyos” cannot be considered as Scheduled Tribe or Scheduled caste, as the facts are being silent whether they have been declared by President as Scheduled Tribe, one cannot assume that, the same has been done. II.2. Right to movement of the People of Rambo The fundamental rights of the citizens, to reside and to settle freely throughout the territory of the Raoh, have been safeguarded under Article 19(1) (e) of the Constitution 6 . Also the UDHR 7 and ICCPR 8 , recognize the freedom to movement and residence in the borders of the State. The international conventions are considered important to enlarge the scope of the fundamental rights. 9 Therefore, the citizens of Rambo have a right to reside and settle in Roah as guaranteed under Article 19 (1) (d) and (e) and the Government being the guarantor of the fundamental rights have a duty to protect the rights of all the citizens of Rambo. II.3. No violation of Article 19 of indigenous people Article 19(1) (e) provides the right to reside and settle in any part of the territory of Rambo, however, reasonable restriction can be put on the same under Article 19(5) if it is in the public interest. 10 Therefore, the rights of the indigenous people to reside and settle in the forest area is not an absolute right and can be restricted under Article 19(5) if it is in the public interest. 11 “Public interest” means a subject matter in which the rights of the public or a section of the public is interested 12 or the means of concern which is advantageous to people as a whole. 13 6 Court on its own motion v. Union of India, 2012(12) SCALE 307, Kharak Singh v. State of U.P, AIR 1963 SC 1295, Waman Rao v. Union of India, (1981) 2 SCC 362, Bachan Singh v. State of Punjab, AIR 1980 SC 898. 7 Article 13, UDHR. 8 Article 12, ICCPR. 9 Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest, Vishaka v. State of Rajasthan, (1997) 6 SCC 241 at 249, People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473 at 1487. 10 Ibid at 5. 11 Court on its own motion v. Union of India, 2012 (12) SCALE 307; Kharak Singh v. State of U.P, AIR 1963 SC 1295, Waman Rao v. Union of India, (1981) 2 SCC 362; Bachan Singh v. State of Punjab, AIR1980 SC 898. 12 Kuttisankaran Nair v. Kumaran Nair, AIR 1965 Ker 161. 13 T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481. 7 th Pro Bono National Environment Law Moot - 2013 5 MEMORIAL ON BEHALF OF THE RESPONDENTS preserve ecology and environment should not hamper economic and other developments 37 , which includes generation of revenue and public interest. 38 Hence, despite the fact that life of the indigenous people is dependent on the forest, the Government not only has to consider the necessity to preserve the ecology, while allowing deforestation, but also has to consider the importance of public projects for the betterment of the conditions of living of the people and the revenue generated from such projects. Therefore, the fact that the new buildings were constructed by doing deforestation in some area of reserved forest cannot be considered to be violation of Article 21 as it is protecting the right to shelter of the citizens of Rambo and generates revenue which will further provide aid to the government to save the island from submerging. Also, the fact that the indigenous people 39 were not relocated from the reserved forest considering their importance to environment shows that the Government had indeed taken into account the needs and rights of the indigenous population and thus, it cannot be said that the Government violated the same. Therefore, the government had struck a balance to protect the fundamental right of all the citizens including indigenous population, so it cannot be considered that there has been violation of Article 21 especially the right to life of indigenous people, since; the action of the government is guided by public interest. II.5. No forced assimilation or isolation, so no requirement of rehabilitation In the present case, the rights of the indigenous people have not been violated on account forced assimilation or isolation, since; the movement of people to forest was rather an inevitable consequence. Further no law casts a duty upon the government to absolutely protect the indigenous people from assimilation or isolation, as it is considered that the gradual assimilation of the indigenous people in the mainstream of the society will lead to their betterment and progress. 40 Moreover the Government of Rambo has already promised to relocate the people of Roah considering the inhabitable conditions of island of Roah; therefore, the point of rehabilitation does not arise. 37 Banwaslseva Ashram v. State of U.P, AIR 1987 SC 374; T.N. Godavarmanthirumalpad v. Union Of India And Ors., (2002) 10 SCC 606. 38 Research Foundation For Science Technology And Natural Resource Policy v. Union Of India And Others, AIR 2007 SC (Supp) 852. 39 ¶5,Moot Proposition. 40 Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664. 7 th Pro Bono National Environment Law Moot - 2013 6 MEMORIAL ON BEHALF OF THE RESPONDENTS III. WHETHER UNION OF RAMBO AND MARCO INTERNATIONAL LTD. CAN BE MADE LIABLE FOR ENVIRONMENTAL DEGRADATION The Union of Rambo and MIL cannot be held liable as [III.1] Sea wall construction site can be located on the coast [III.2] MIL not liable for pollution [III.3] Union of Rambo not liable for climate change in Pongean Sea; [III.4] Union of Rambo and MIL not liable to pay compensation. III.1. Location of Construction Unit at a proper place III.1.1. Construction of sea wall permitted under The Coastal Regulation Zone Notification, 2011 The Coastal Regulation Zone Notification, 2011 41 , issued under the Environment Protection Act, 1986 42 , regulates permissible activities on the coast including the construction and operation of erosion control measures. 43 Seawalls are considered to be most effective 44 erosion control measure 45 , as it provides protection to infrastructure, property, and human life 46 , by preventing sliding of the soil by the wave action. In the instant case, due to the susceptibility of Roah’s coastline to natural disasters and threat of the island being submerged in ten years 47 , it became imperative for the government to construct concrete seawall, permitted under CRZ Notification, 2011, so that it would withstand the strong tidal wave action, to protect the island until the inhabitants of the island are relocated. 41 Hereinafter referred to as CRZ Notification 2011. 42 Section 3 (2) (1) (v) Environment (Protection) Act, 1986. 43 Regulation 4(f) Coastal Regulation Zone Notification 2011; IOC-UNEP-WMO-SAREC Coastal Erosion Planning Workshop,Sea Level Changes and their Impacts Intergovernmental Oceanographic Commission Workshop Report No. 96 -Supplement 1 Available at http://www.jodc.go.jp/info/ioc_doc/Workshop/w096s1.pdf, Last Accessed 18 th October 2013. 44 Ministry of Water Resources, Technical Memorandum on Guidelines for Design and Construction of Seawalls, May 2010, Government of India , Pg. 2, Available at http://cwc.gov.in/CPDAC/Guideline/CWPRS%20-Technical%20Memoranda.pdf, Last Accessed 18 th October, 2013. 45 Ibid. p 2. 46 Basco D.R. Seawall Impact on Adjacent Beaches: Separating Fact from Fiction Journal of Coastal Research SI 399 Brazil, Available at http://siaiacad09.univali.br/ics2004/arquivos/149_basco.pdf , Last Accessed 18th October 2013. 47 ¶ 11 of the Moot Proposition. 7 th Pro Bono National Environment Law Moot - 2013 7 MEMORIAL ON BEHALF OF THE RESPONDENTS III.1.2. Construction Unit in sensitive area The construction sites can be allowed in sensitive areas if it maintains the coastline 48 , is in the national interest and is of utmost necessity 49 .Necessity is the kind of pressure which the law recognizes as serious and sufficient. 50 In the instant case, the construction of seawalls was a matter of urgent necessity and national interest, since; the report released by Rambo Coordinated Research Committee stated that the island of Roah would become uninhabitable within ten years 51 , therefore, the construction of seawall was the only effective alternative, before the permanent place could be found for the settlement of those in Roah. Further, the lack of financial resources 52 restricted the setting up of the construction site in any other area since factors such as transportation costs and labour would have made it difficult to operate. III.2. Marco International Ltd. not liable for Pollution III.2.1. No liability for Air Pollution Air pollution is the presence of pollutants in the atmosphere in concentrations that tend to be injurious to human beings or biodiversity. 53 In the instant case, there were allegations by the people residing around construction unit of some respiratory problems, and because of the constant protest, an order was passed by the High Court to install necessary pollution control equipment 54 , to protect the people and since it cannot be construed, whether the order has been followed or not, an inquiry needs to be carried out in that regard. Until the petitioner proves the company’s non-compliance with the High Court’s orders, it cannot be reasonably ascertained that the company Maraco International Ltd. is liable for polluting the atmosphere and causing harm to the people. 48 Regulation 4 (i) (f) of CRZ Notification 2011, Pg. 5. 49 In Re: Airports Authority of India Ltd. , AIR 1999 SC 2367. 50 Ramsumaran Prasad v. ShyamKumari , AIR 1922 P.C. 856. 51 ¶ 11 of the Moot Proposition. 52 ¶9 of the Moot Proposition. 53 Section 2 (a) The Air (Prevention And Control Of Pollution) Act, 1981. 54 ¶ 14 of the Moot Proposition. 7 th Pro Bono National Environment Law Moot - 2013 10 MEMORIAL ON BEHALF OF THE RESPONDENTS liberty and life of an individual can be placed in jeopardy in the case of existing, immediate and overwhelming necessity. 68 In the instant case, the construction of seawalls was a matter of urgent necessity and national interest, so as to delay the submerging of island and thereby to protect the life of people. Therefore, by constructing sea wall the State was performing its duty to safeguard the well- being of the people, keeping in mind that the needs of environment need to be balanced with the needs of community at large in a developing country 69 and hence there is no liability for any wrong committed by the Union of Rambo. Also, since the liability of polluting the environment cannot be imputed to the company or the government, they are not liable to pay damages. 68 Malverer v. Spinke (1537) Dyer, (Part I), 356. 69 BSES Ltd. v. Union of India 2001 (1) Bom CR 394; Dahanu Taluka Environment Protection Group v. Bombay Suburban Electricity Supply Company Ltd. (1991) 2 SCC 539. 7 th Pro Bono National Environment Law Moot - 2013 11 MEMORIAL ON BEHALF OF THE RESPONDENTS PRAYER In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble Court be pleased to: 1. Dismiss the writ petition. 2. In the alternative declare and adjudge: a. That the Respondents have not violated the fundamental rights of the indigenous people. b. That the Respondents are not liable for environmental degradation. AND/OR Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience. And for this, the Respondents as in duty bound, shall humbly pray. COUNSELS FOR THE RESPONDENTS