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T- 09

B.M. Sreenivasaiah Memorial 2nd National Moot Court Competition, 2016


BEFORE THE HONBLE SUPREME COURT OF KANO
[UNDER ARTICLE 136 OF THE CONSTITUTION OF KANO]
IN THE MATTER OF

STATE OF MANDEVILLEPETITIONER

V.

STATE OF KARAKRESPONDENT

ON SUBMISSION TO THE HONBLE SUPREME COURT OF KANO


MEMORIAL FILED ON BEHALF OF THE RESPONDENT

B.M.SREENIVASAIAH MEMORIAL 2ND NATIONAL MOOT COURT COMPETITION, 2016

TABLE OF CONTENTS

INDEX OF AUTHORITIES...................................................................................................... 4
STATEMENT OF JURISDICTION.......................................................................................... 8
SUMMARY OF FACTS ........................................................................................................... 9
STATEMENT OF ISSUES ..................................................................................................... 10
SUMMARY OF ARGUMENTS ............................................................................................. 11
ARGUMENTS ADVANCED ................................................................................................. 14
1. MAINTAINABILITY OF THE SPECIAL LEAVE PETITION BEFORE THE SUPREME
COURT OF KANO ............................................................................................................. 14
A.

BAR ON THE JURISDICTION OF THE SUPREME COURT OF KANO: ......... 14

2. THE CLEARANCE GIVEN BY THE UNION GOVERNMENT MUST NOT BE


REVOKED .......................................................................................................................... 20
A.

CLEARANCE GIVEN BY THE UNION GOVERNMENT IS IN ACCORDANCE

WITH THE PROVISIONS OF LAW: ............................................................................ 20


B.

AGREEMENT MUST BE ENFORCED: ............................................................... 22

C.

INTERNATIONAL WATER-SHARING PRINCIPLES: ...................................... 23

3. THE CONSTRUCTION OF THE DAM SHOULD NOT BE HALTED ....................... 25


A. THE PLIGHT OF THE PEOPLE AND THE NEED FOR WATER: ........................ 25
B. NO ADVERSE ECOLOGICAL IMPACT: ................................................................ 29
PRAYER .................................................................................................................................. 33
APPENDIX .............................................................................................................................. 34
ABBREVIATIONS USED: ................................................................................................. 34
EXHIBITS ............................................................................................................................... 36
CONSTITUTIONAL PROVISIONS .................................................................................. 36
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ISRWD Act,1956 ................................................................................................................. 38


DISASTER MANAGEMENT ACT, 2005.......................................................................... 39
NATIONAL WATER POLICY, 2012 ................................................................................ 40
NATIONAL WATER POLICY, 2002 ................................................................................ 40
INTERNATIONAL AUTHORITIES .................................................................................. 40
BRUNDTLAND REPORT, OUR COMMON FUTURE,1987: ..................................... 40
UNDP REPORT,1990,P.10 : ........................................................................................... 40
EARTH SUMMIT, RIO DECLARATION,1992: ........................................................... 41
UN DECLARATION ON THE RIGHT TO DEVELOPMENT, 1986:.......................... 41
BERLIN RULES ON WATER RESOURCES,2004: ..................................................... 42

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INDEX OF AUTHORITIES

CASES

Ashok Nagar Welfare Association & Anr. v. R.K. Sharma & Ors., AIR 2002 SC 335. ........... 14
Attakoya Thangal v. Union of India, 1990 (1) KLT 580. ......................................................... 22
Bipinchand J.Diwan v. State of Gujarat, AIR 2002 Guj 9. ...................................................... 23
Bombay Dyeing & Manufacturing Co. Ltd. v. Bombay Environmental Action Group,
(2006) 3 SCC 434.................................................................................................................... 27
Central Inland Water Transport Corporation v. Brojo Nath , AIR 1986 SC 1571. ................ 24
Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 2911. ................................................ 23
Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, AIR 1987 SC 117. ............................... 11
Cmd/Chairman,. B.S.N.L. & Ors. v. Mishri Lal & Ors., (2011) 14 SCC 739. ........................ 18
Coffee Board v. Jt. Commercial Tax Officer, AIR 1971 SC 870. ............................................ 16
Delhi Water Supply & Sewage Disposal Undertaking v. State of Haryana,
AIR 1996 SC 2992.............................................................................................................. 23, 25
Essar Oil Ltd. v. Halar Utkarsh Samiti, AIR 2004 SC 1834.................................................... 21
J.P.Unnikrishnan v. State of Andhra Pradesh, AIR 1993 SC 2178. ........................................ 23
Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214. ........... 14
Jose Da Costa v. Bascora Sadasiva Sinai Narcornium, AIR 1975 SC 1843. .......................... 14
Kapila Hingorani v. State of Bihar, AIR 2003 SC 3724. ......................................................... 25
Kays Construction Co. v. Workmen, AIR 1959 SC 2008. ........................................................ 15
Kishanchand v. S.T.A., AIR 1968 SC 1461. ....................................................................... 14, 15
LIC of India & Anr. v. Consumer Education Research Centre & Ors. Etc.,
AIR 1995 SC 1811................................................................................................................... 24
M.C.Mehta v. Union of India, AIR 2002 SC 1696. .................................................................. 24
Madhu Kishore v. State of Bihar, AIR 1996 SC 1864.............................................................. 26
N.D.Jayal & Anr. v. Union of India & Ors., AIR 2004 SC 867. .................................. 26, 27, 28
Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751. ................ 25,27,28,29,30,31
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National Textile Workers Union v. P.R.Ramakrishnan, AIR 1983 SC 750. ........................... 26


Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180. .................................. 24, 25
Paschim Banga Khet Mazdoor Samiti & Ors. v. State of West Bengal & Anr.,
AIR 1996 SC 2426.................................................................................................................... 24
R (Pretty) v. DPP, (2002) 1 All ER 1. ...................................................................................... 22
Rai Sahib Ram Jawaya Kapur and Ors. v. The State of Punjab, AIR 1955 SC 549. ............... 17
Registrar, Trade Marks v. Ashok Chandra, AIR 1955 SC 558. ............................................... 14
Samata v. State of Andhra Pradesh, AIR 1997 SC 3297. ........................................................ 26
Shantistar Builders v. Narayan Khimalal Totame, AIR 1990 SC 630. .................................... 24
Shri Balvantrai Chimanlal Trivedi v. M.N. Nagrashna & Ors., AIR 1960 SC 1292. .............. 14
State of Andhra Pradesh v. State of Karnataka & Ors., AIR 2001 SC 1560. .................... 13, 18
State of Andhra Pradesh v. State of Karnataka. ................................................................ 13, 18
State of Nebraska v. State of Wyoming, 373 U.S. 541 (1963).................................................. 20
State of Orissa v. Govt. of India, (2009) 5 SCC 492................................................................ 23
State of Tamil Nadu v. State of Karnataka & Ors., 1991 Supp (1) SCC 240. ......................... 12
Tehri Bandh Virodhi Sangarsh Samiti v. State of U. P., (1992) Supp (1) SCC 44. ................. 19
The British India Steam Navigation Co. Ltd v. Jasjit Singh, Addl. Collector of Customs, Calcutta
& Ors., ................................................................................................................................. 15
The South India Corporation (P) Ltd. v. The Secretary, Board of Revenue, Trivandrum & Anr.,
AIR 1964 SC 207.................................................................................................................. 11
Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715. ................................. 26

BOOKS REFERRED
1. Ahluwalia S.K, International Environmental Policy, ABD Publishers, Rajasthan.
2. Arvind.P.Datar, Commentary on the Constitution of India, Vol.1, 2nd Ed. Reprint 2010,
Lexis Nexis, Butterwords Wadhwa Publication, Nagpur.
3. Arvind.P.Datar, Commentary on the Constitution of India, Vol.2, 2nd Ed. Reprint 2010,
Lexis Nexis, Butterwords Wadhwa Publication, Nagpur.

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4. Basu.D.D, Commentary on the Constitution of India, Vol.5, 8th Ed. 2009,Lexis Nexis,
Butterwords Wadhwa Publication, Nagpur.
5. Basu.D.D, Commentary on the Constitution of India, Vol.8, 8th Ed. Reprint 2012,Lexis
Nexis, Butterwords Wadhwa Publication, Nagpur.
6. Basu.D.D, Shorter Constitution of India, Vol.1, 14th Ed., Lexis Nexis, Butterwords
Wadhwa Publication, Nagpur.
7. Basu.D.D, Shorter Constitution of India, Vol.2, 14th Ed., Lexis Nexis, Butterwords
Wadhwa Publication, Nagpur.
8. Basu.D.D, Administrative Law, 6th Ed., Kamal Law House.
9. Choudhry R.N, Law of Forests in India, 1999 Ed., Orient Publication Co.
10. Cullet.P, Madhav.R, Gowland, Ramanathar, Water Governance in Motion, Foundation
Books.
11. Dodda Srinivas Rao, Inter-State Water Disputes in India,1998, Deep & Deep Publications
Pvt. Ltd., New Delhi.
12. Dr. Maheshwara Swamy.N, Laws Relating to Environmental Pollution & Protection,
Asia Law House.
13. Dr.Indra Priya Dasini & Prof. K.Uma Devi, Environmental Law and Sustainable
Development.
14. Indrajith Dube, Environment Jurisprudence, Lexis Nexis, Butterwords Wadhwa
Publication, Nagpur.
15. Jain M.P & Jain S.N, Principles of Administrative Law, 5th Ed. Reprint 2009, Lexis
Nexis, Butterwords Wadhwa Publication, Nagpur.
16. Jain.M.P, Indian Constitutional Law, 7th Ed., 2014, Lexis Nexis, Butterwords Wadhwa
Publication, Nagpur.
17. Justice Doabia.T.S, Environment & Pollution Laws in India, Vol.1 & 2, 2nd Ed., 2010,
Lexis Nexis, Butterwords Wadhwa Publication, Nagpur.
18. Paras Diwan & Peeyushi Diwan, Vol.1, Environment Administration Law & Judicial
Attitude, Deep & Deep Publications Pvt. Ltd., New Delhi.
19. Shukla.V.N, Constitution of India, 12th Ed., 2013, Eastern Book Company, Lucknow.

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LEGAL DATABASES
1. All India Reporter
2. Manupatra
3. SCC Online
STATUTES REFERRED
1. The Constitution of India, 1950
2. Inter-State River Water Disputes Act, 1956
3. The Disaster Management Act, 2005
LEXICONS USED
1. Ramanatha Aiyar.P, Concise Law Dictionary, 5th Ed., 2014, Lexis Nexis, Butterwords
Wadhwa Publication, Nagpur.
INTERNATIONAL CONVENTIONS
1. Berlin Rules on Water Resources, 2004
2. Earth Summit, Rio Declaration, 1992
3. Stockholm Declaration, 1972
4. UN Declaration on the Right to Development, 1986
5. UN Water Conference, 1997
6. UNDP Report, 1990
7. World Charter for Nature, 1982

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B.M.SREENIVASAIAH MEMORIAL 2ND NATIONAL MOOT COURT COMPETITION, 2016

STATEMENT OF JURISDICTION
The Respondent humbly submits this memorandum in response to the petition filed by State of
Mandeville before this Honourable Court. The petition is filed under Article 136 of the
Constitution of Kano. The Respondent reserves the right to contest the Jurisdiction of this
Honourable Court.

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B.M.SREENIVASAIAH MEMORIAL 2ND NATIONAL MOOT COURT COMPETITION, 2016

SUMMARY OF FACTS

The Union of Kano, the fastest developing democratic republic is divided into North,
South, East and West Zone. The Nudi Adami Party (NAP) at the centre has made
promoting the use of the abundant renewable energy as its National Policy. The two
neighbouring States, State of Mandeville and State of Karak, re-organised on the basis of
language are situated in the predominantly agricultural Eastern Zone of Kano and have
had stressed relations pertaining to distribution of water from the inter-state river Aishani
which takes birth in the State of Karak and has a river basin covering 34,273 sq.km in the
State of Karak and 43,856 sq.km in State of Mandeville.

The tensions were kept under control as both States were ruled by the same political party
(Kano Adami Party). The two State governments also entered into a water sharing
agreement which proposed the construction of a water dam AISHANI JAL to aid the
drought prone areas in the State of Karak in 1970.

In 1985, a new regional party named Mandi Adami Party (MAP) displaced the former in
Mandeville while the KAP still ruled in Karak. Thus due to ideological differences, the
Aishani Jal Project was completely stalled. Around the same time, a drought hit the
western part of Karak claiming lives and instigating farmers to riot against the
Government for stalling the project. This led to the change in Government in Karak and
the Nudi Adami Party (NAP) came to power. When talks resumed to settle the issue,
Karak claimed that it would require 7.5 TMC of water to resolve its drought issues which
was not accepted by Mandeville on environmental grounds.

Mandeville approached the Union of Kano for referring the matter to a Water Tribunal
which was accordingly created. Meanwhile Karak sought clearance for the AISHANI
JAL Project from the Union Government as there was a complete halt on its economy.
The Government, through the Ministry of Water Resources and the National
Environment Engineering Institute gave in principle clearance causing Mandeville to
approach the Water Tribunal seeking a stay on the clearance and an injunction to stop the
construction.The tribunal, not convinced with this line of argument rejected the
application. Aggrieved by this, the State of Mandeville has approached the Supreme
Court of Kano seeking relief.
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B.M.SREENIVASAIAH MEMORIAL 2ND NATIONAL MOOT COURT COMPETITION, 2016

STATEMENT OF ISSUES

ISSUE 1: WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE


BEFORE THE SUPREME COURT OF KANO?

ISSUE 2: WHETHER THE CLEARANCE OBTAINED BY THE STATE OF


KARAK IS IN DISCORD WITH THE PROVISIONS OF LAW?

ISSUE 3: WHETHER THE CONSTRUCTION OF THE AISHANI JAL PROJECT


MUST BE HALTED?

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SUMMARY OF ARGUMENTS
ISSUE-1: MAINTAINABILITY OF THE SPECIAL LEAVE PETITION BEFORE THE
SUPREME COURT OF KANO:
A. BAR ON THE JURISDICTION OF THE SUPREME COURT OF KANO:
On a perusal of Article 262 of the Constitution and Section 11 of the ISRWD Act of 1956, it is
apparent that the Parliament is authorised by law to provide that neither the Supreme Court nor
any other Court shall exercise jurisdiction in respect of any dispute or complaint relating to the
use, distribution or control of the waters of, or in, any inter-State river or river valley. In this
regard, it is contended that the jurisdiction of the Supreme Court or any other Court to adjudicate
in matters falling under the purview of the ISRWD Act is barred in lieu of Article 262 read along
with Section 11 of the said Act. Article 131 being subject to the other provisions of the
Constitution including Article 262, if Parliament has made any law for adjudication of any water
dispute or a dispute relating to distribution or control of water in any inter-State river or river
valley, then such a dispute cannot be raised before the Supreme Court under Article 131, even if
the dispute is one between the Centre or the State or between the two States. Article 136 provides
for a petition by way of special leave in any judgement, order, determination or decree in any
cause or matter before any Court or Tribunal. It does not confer a right of appeal on any party,
but it confers a discretionary power on the Supreme Court to interfere in suitable cases. The
power under Article 136 is an extraordinary power to be exercised in rare and exceptional
circumstances. Furthermore in this present case, the Tribunal has not violated any of the
aforementioned rules and hence it is contended that an appeal cannot lie to the Supreme Court by
way of Article 32. Hence, in lieu of the submitted arguments, it is contended that this Honble
Court has no jurisdiction to entertain any appeal against the impugned action of the Tribunal.

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ISSUE-2: THE CLEARANCE GIVEN BY THE UNION GOVERNMENT MUST NOT BE


REVOKED:
A. CLEARANCE GIVEN BY THE UNION GOVERNMENT IS IN ACCORDANCE
WITH THE PROVISIONS OF LAW:
In the present case, the in principle clearance given by the Union Government was done so
through the Ministry of Water Resources and the same was approved by the National
Environmental Engineering Institute. The clearance given was not only in accordance with the
provisions of law but is also in furtherance of the Governments National Policy, which is,
promoting the use of renewable energy resources.
B. AGREEMENT MUST BE ENFORCED:
In a modern State, whatever be the form of government, the individual is affected in his everyday
life and in the exercise of his civil rights by acts of the State and its officials in various spheres
and in different ways. It is evident that had the agreement between the States been implemented,
it would have led to the construction of the dam and would have provided water to the drought
prone areas of the State of Karak, hence saving the lives of its citizens. It is thus contended by
the respondents that the agreement entered into by the State of Mandeville and the State of Karak
must be enforced.
D. INTERNATIONAL WATER-SHARING PRINCIPLES:
In the present case, as the lives of the citizens of the State of Karak are at stake, along with the
economical predicament of the State, and as due weightage has also been given to the
environment, it is contended by the respondents that the clearance given by the Union
Government must not be revoked, keeping in mind the widely established principles of
International Law in relation to the present case.

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ISSUE-3: THE CONSTRUCTION OF THE DAM MUST NOT BE HALTED:


A.THE PLIGHT OF THE PEOPLE AND THE NEED FOR WATER:
The right to have water for drinking purposes is a part of right to life. Due to the severe drought,
there has been a huge loss of life and property in the State of Karak. The sanctity of human life is
the most important aspect of all social values and hence it must be protected to the maximum
possible extent especially when resources are available. Water is the basic need of survival of
human beings and is a part of right to life and human rights as enshrined under Article 21 and
can be served only by providing sources of water where there is none. Droughts are devastating
as water supplies dry up, crops fail to grow, animals die and malnutrition and ill health become
widespread. The environmental effects of drought, including salinisation of soil and groundwater
decline, increased pollution of freshwater ecosystems and regional extinction of animal species
occur. The Constitution of Kano, established a welfare State both at the Centre and the State, and
a welfare State cannot remain blind to the problems that involve the basic necessities of life and
hence, it is the duty of the State to provide security to the people especially when a natural
calamity occurs. If the construction of the dam is halted, the people will be placed far from
access to water for domestic purposes which could otherwise be provided by the State.
B. NO ADVERSE ECOLOGICAL IMPACT:
Any human activity will cause the natural state of the environment to change, but it cannot be
presumed that a mere slight change in the environment would amount to destruction of ecology.
The severe drought in the State of Karak has caused agitation in the minds of the inhabitants,
especially the farmers and in pursuance of the progress made towards the implementation of the
project, these people cannot be deprived of the right to develop from the situation the drought
has driven them to. Moreover, the concept that ecology and development are enemies has
become obsolete and sustainable development is the driving force today enabling development to
take place without the destruction of the ecology. Also, the construction of the dam would
further better the environment of the areas nearby as the drought causes severe environmental
damage and flora and fauna also suffer without water. Therefore, the construction of the dam is
in line with sustainable development and does not have any adverse impact on the ecology and
hence must not be stopped.

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ARGUMENTS ADVANCED

1. MAINTAINABILITY OF THE SPECIAL LEAVE PETITION BEFORE THE


SUPREME COURT OF KANO

A. BAR ON THE JURISDICTION OF THE SUPREME COURT OF KANO:


i.

It is a general principle of Interpretation of Statutes that a clause beginning with the


expression "notwithstanding anything contained in this Act or in some particular
provision in the Act or in some particular Act or in any law for the time being in force, or
in any contract" is more often than not 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 of the Act or the contract mentioned in the non-obstante clause. It is equivalent
to saying that inspite of the provision of the Act or any other Act mentioned in the nonobstante clause or any contract or document mentioned the enactment following it will
have its full operation.1

ii.

The phrase "notwithstanding anything in the Constitution is equivalent to saying that


inspite of the other articles of the Constitution, or that the other articles shall not be an
impediment to the operation of the Article.2

iii.

In order to appreciate the above controversy it would be proper to refer to Article 262 of
the Constitution and Section 11 of the Act which read as under:
Article 262 - Adjudication of disputes relating to waters of inter-state rivers or river
valleys:

Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, AIR 1987 SC 117.

The South India Corporation (P) Ltd. v. The Secretary, Board of Revenue, Trivandrum & Anr.,

AIR 1964 SC 207.

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(1) Parliament may by law provide for the adjudication of any dispute or complaint with
respect to the use, distribution or control of the waters of, or in, any inter-State river or
river valley.
(2) Notwithstanding anything in this Constitution, Parliament may by law provide that
neither the Supreme Court nor any other Court shall exercise jurisdiction in respect of
any such dispute or complaint as is referred to in Clause (1).
Section 11: Bar of Jurisdiction of Supreme Court and other Courts:
Notwithstanding anything contained in any other law, neither the Supreme Court nor any
other court shall have or exercise jurisdiction in respect of any water dispute which may
be referred to a Tribunal under this Act.
iv.

On a perusal of Article 262 of the Constitution and Section 11 of the ISRWD Act of
1956, it is apparent that the Parliament is authorised by law to provide that neither the
Supreme Court nor any other Court shall exercise jurisdiction in respect of any dispute or
complaint relating to the use, distribution or control of the waters of, or in, and inter-State
river or river valley.3

v.

The jurisdiction of the Supreme Court in disputes as to existence of a legal right between
the Union and the States or between the States inter se is exclusive, except in certain
matters excepted by other provisions of the Constitution.

vi.

The distinction between Article 262 of the Constitution and Entry 56 of List I of the
Seventh Schedule of the Constitution is that whereas the former speaks of adjudication of
disputes with respect to use, distribution or control of waters of any inter-State river or
river valley, Entry 56 speaks of regulation and development of inter-State rivers and river
valleys. It cannot be disputed that the Act, viz., the ISRWD Act, 1956, is not legislation
under Entry 56. It can be enacted and has been enacted only under Article 262 of the
Constitution. In this regard, it is contended that the jurisdiction of the Supreme Court or
any other Court to adjudicate in matters falling under the purview of the ISRWD Act is
barred in lieu of Article 262 read along with Section 11 of the said Act.

State of Tamil Nadu v. State of Karnataka & Ors., 1991 Supp (1) SCC 240.

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vii.

Article 131 of the Constitution subject to the other provisions of the Constitution confers
Original Jurisdiction on the Supreme Court over a dispute between the Central
Government and one or more States or between two or more States subject to the
condition that the dispute involves any question whether of law or fact on which the
existence or extent of a legal right depends. Article 262(1) of the Constitution authorises
the Parliament to make laws for adjudication of any dispute or complaint with respect to
the use, distribution or control of the waters of, or in, any inter-State river or river valley.
Clause 2 of Article 262 also authorises the Parliament to provide by law for the exclusion
of the jurisdiction of the Supreme Court or any other Court in respect of a dispute or
complaint as is referred to in Clause (1).

viii.

Article 131 being subject to the other provisions of the Constitution including Article
262, if Parliament has made any law for adjudication of any water dispute or a dispute
relating to distribution or control of water in any inter-State river or river valley, then
such a dispute cannot be raised before the Supreme Court under Article 131, even if the
dispute is one between the Centre or the State or between the two States. In exercise of
Constitutional power under Article 262(1), the Parliament, in fact has enacted a law
called the Inter-State Water Disputes Act, 1956 and Section 11 of the said Act provides
that neither the Supreme Court nor any other Court shall have jurisdiction in respect of
any water dispute which could be referred to a tribunal under the Act.4

ix.

Article 136 provides for a petition by way of special leave in any judgement, order,
determination or decree in any cause or matter before any Court or Tribunal. This Article
begins with the words Notwithstanding anything in this chapter. The words clearly
indicate that the exemption granted by the non obstante clause is in regard to this chapter
alone, and has no bearing on the entire Constitution. Hence while reading this Article,
due regard must be given to Article 262 of the Constitution.

x.

In regard to exercise of jurisdiction through Article 136 of the Constitution, it is a well


settled principle that the exercise of jurisdiction by Article 136 is discretionary. It does
not confer a right of appeal on any party, but it confers a discretionary power on the
Supreme Court to interfere in suitable cases.5

State of Andhra Pradesh v. State of Karnataka & Ors., AIR 2001 SC 1560.

Ashok Nagar Welfare Association & Anr. v. R.K. Sharma & Ors., AIR 2002 SC 335.

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xi.

The power under Article 136 is permitted to be invoked not in a routine fashion, but in
very exceptional circumstances when a question of law of general public importance
arises or a decision sought to be impugned before the Supreme Court shocks its
conscience. Article 136 does not confer a right of appeal. The power under Article 136 is
an extraordinary power to be exercised in rare and exceptional circumstances.6

xii.

The power under Article 136 cannot be taken away expressly or impliedly by any
ordinary legislation short of Constitutional Amendment.7 It would be pertinent to note
here that the power of appeal to this Honble Supreme Court has not been barred by an
ordinary legislation nor by the Constitution itself.

xiii.

An application for special leave may be summarily rejected where the Court is satisfied
that no substantial injustice has been done.8 In this regard it is humbly submitted before
the Honble Court that the petitioners have had no injustice wrought upon them, and
justice was done on them when the Water Disputes Tribunal was constituted at their
request as per the provisions of the law.

xiv.

Additionally, leave will not be granted in case of exercise of discretion by a Tribunal in a


matter which falls within its discretion under the relevant law.9 In this present case, it is
absolutely clear that the matter was the same for which the very Tribunal was constituted
and being the sole authority capable of adjudicating it, the matter fell within the
Tribunals discretion, and the same was exercised by the Tribunal.

xv.

The general principle to be remembered in this context is that the Supreme Court would
not disturb the decisions of specially constituted Tribunals or authorities, as if it were an
appeal Court, and would not review findings of fact except where they are perverse or
shocking to the judicial conscience or the like.10

xvi.

It is to be noted at this juncture that a strong point of such a Tribunal is its freedom from
political influence and its neutrality in the dispute in which it adjudicates upon, more or
less like the impartiality of a Judge in an ordinary Court, since being autonomous and not

Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214.

Jose Da Costa v. Bascora Sadasiva Sinai Narcornium, AIR 1975 SC 1843.

Shri Balvantrai Chimanlal Trivedi v. M.N. Nagrashna & Ors., AIR 1960 SC 1292.

Registrar, Trade Marks v. Ashok Chandra, AIR 1955 SC 558.

10

Kishanchand v. S.T.A., AIR 1968 SC 1461.

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an integral part of the Government department, it is more or less free from such bias
which an administrative department might have in implementing its policies.
xvii.

The reason to take these disputes out of the purview of the Courts and appoint Tribunals
to solve them is that rules of law based on the analogy of private proprietary interests in
water do not afford a satisfactory basis for settling these disputes where the interests of
the public at large in the proper use of water supplies are involved.

xviii.

It is the contention of the respondents, while maintaining that the Tribunal has
adjudicated correctly, that a decision of a Tribunal cannot be challenged on the ground
that the Tribunal has come to a wrong decision, having the jurisdiction to come to that
decision.11

xix.

It has previously been held by this Court that when the evidence that was shut out relates
to an isolated point which in the opinion of the Tribunal has no bearing on the issue
before them, there is no sufficient ground for interference by the Supreme Court.12 In the
present case, the point of contention raised by the petitioners is indeed an isolated point
which barely has a bearing on the larger issue at hand, that is, the loss of life caused by
the drought and the life of the people of the State of Karak.

xx.

Furthermore, the Supreme Court generally does not entertain appeals against orders
passed by a Tribunal unless the alternative remedies provided by the relevant statute by
way of appeal or revision have been pursued by the aggrieved party.13 The petitioners in
this case did not file for a revision by the Tribunal, and as the decision of the Tribunal
does not become final until it has been published in the Official Gazette, the petitioners
had an opportunity to file a revised petition before the Tribunal.

xxi.

In regard to appeal by way of Article 32 of the Constitution, the Supreme Court has
explained that a petitioner has a right to move a writ petition under Article 32 to
challenge a quasi-judicial decision where the action is proposed to be taken under an
ultra vires statute, or where the action is taken without jurisdiction, or without following


11

Kays Construction Co. v. Workmen, AIR 1959 SC 2008.

12

Kishanchand v. S.T.A., AIR 1968 SC 1461.

13

The British India Steam Navigation Co. Ltd v. Jasjit Singh, Addl. Collector of Customs, Calcutta & Ors.,

AIR 1964 SC 1451.

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natural justice. 14 In this present case, the Tribunal has not violated any of the
aforementioned rules and hence it is contended that an appeal cannot lie to the Supreme
Court by way of Article 32.
xxii.

Hence, in lieu of the submitted arguments, it is contended that this Honble Court has no
jurisdiction to entertain any appeal against the impugned action of the Tribunal. It is
submitted that Article 262 of the Constitution clearly provides that in respect of
adjudication of disputes relating to waters of inter-State rivers has to be decided by law
made by Parliament in this regard. Clause (2) of Article 262 further provides that
Parliament may by law provide that neither the Supreme Court nor any other Court shall
exercise jurisdiction in respect of any such dispute or complaint as is referred to in Clause
(1), notwithstanding anything in this Constitution. It is submitted that the ISRWD Act,
1956 has been enacted by Parliament in this regard, and Section 11 of the said Act clearly
takes away, not only the jurisdiction of any other Court but also of the Supreme Court in
express terms.


14

Coffee Board v. Jt. Commercial Tax Officer, AIR 1971 SC 870.

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2. THE CLEARANCE GIVEN BY THE UNION GOVERNMENT MUST NOT BE


REVOKED

A. CLEARANCE GIVEN BY THE UNION GOVERNMENT IS IN ACCORDANCE


WITH THE PROVISIONS OF LAW:
i.

The functions of the different parts or branches of the Government have been sufficiently
differentiated and consequently it can very well be said that our Constitution does not
contemplate assumption, by one organ or part of the State, of functions that essentially
belong to another. The executive can exercise the powers of departmental or subordinate
legislation when such powers are delegated to it by the legislature. It can also, when so
empowered, exercise judicial functions in a limited way. The executive Government,
however, can never go against the provisions of the Constitution or of any law.15

ii.

The limits within which the executive Government can function under the Constitution of
Kano can be ascertained without much difficulty by reference to the form of the
executive which our Constitution has set up. Our Constitution, though federal in its
structure, is modeled on the British Parliamentary system where the executive is deemed
to have the primary responsibility for the formulation of governmental policy and its
transmission into law. The executive function comprises both the determination of the
policy as well as carrying it into execution.16

iii.

In the present case, the in principle clearance given by the Union Government was done
so through the Ministry of Water Resources and the same was approved by the National
Environmental Engineering Institute. The clearance given was not only in accordance
with the provisions of law but is also in furtherance of the Governments National Policy,
which is, promoting the use of renewable energy resources.

iv.

In regard to the validity of the clearance given by the Union Government, it is contended
by the Respondents that the same being given in furtherance of its National Policy,


15

Rai Sahib Ram Jawaya Kapur and Ors. v. The State of Punjab, AIR 1955 SC 549.

16

Supra.

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constitutes a policy decision of the Government. In this regard, it is a well settled and
established principle that matter regarding the policy decisions of the Government cannot
be interfered with17, as long as such decisions are within the scope of powers conferred
upon the executive by the Parliament.
v.

When clearance is given for the furtherance of the project by the concerned authority, in
the absence of any law that compels such authority to seek the permission of the other
riparian States for the granting of such clearance, such clearance is a valid one and the
Central Government is not duty bound to take the consent of other States while
sanctioning a project of any of the riparian States.18

vi.

The several provisions of the Constitution have been tested and there is no reason to
conceive that any State will force ahead with its project concerning usage of water in
respect of Inter State reservoir without getting the sanction/concurrence of the
Appropriate Authorities and without compliance with the relevant statutes or laws made
by the Parliament. It is a common knowledge that the large scale projects planned by
each of these States, are submitted to the Planning Commission for its approval and for
getting financial assistance. Such projects are then examined by different authorities and
it is only after getting approval of the Planning Commission the same is submitted to the
appropriate departments of the Government of Kano where again all the formalities are
scrutinised and final sanction or permission is granted.19

vii.

Furthermore, The National Environmental Engineering Institute, being a pioneer and


leading expert on environmental science and engineering for sustainable development,
has approved of and has given in principle clearance, along with the Ministry of Water
Resources, for the AISHANI JAL project, and the same can be implemented in lieu of the
given clearances.

viii.

It is clearly indicated by the facts that the Union Government has considered the safety of
the project in detail by obtaining the reports of experts. Clearance may be given only after


17

Cmd/Chairman,. B.S.N.L. & Ors. v. Mishri Lal & Ors., (2011) 14 SCC 739.

18

State of Andhra Pradesh v. State of Karnataka & Ors., AIR

19

Supra.

2001 SC 1560.

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the Government is satisfied with the report of experts. It has been held in such situations,
directions restraining authorities from implementation of projects cannot be given.20
ix.

Thereby, it is contended and humbly submitted that the in-principle clearance given by
the Union Government through the Ministry of Water Resources is a valid one and hence
the project can be implemented.

B. AGREEMENT MUST BE ENFORCED:


i.

In a modern state, whatever be the form of government, the individual is affected in his
everyday life and in the exercise of his civil rights by acts of the State and its officials in
various spheres and in different ways. Some of these acts are done by the State as the
sovereign while others are done by the State in trading and other capacities in the same
manner as a private individual does.21

ii.

It has been established in the facts that the State of Mandeville had entered into a water
sharing agreement with the State of Karak in the year 1970 which has proposed the
construction of the AISHANI JAL dam across the border region for the purpose of
providing water to the drought prone areas of the State of Karak.

iii.

The project which was the object of the agreement had been delayed and completely
stalled due to ideological differences between the Kano Adami Party and the Mandi
Adami Party, the then ruling parties of the State of Karak and the State of Mandeville
respectively. And due to a subsequent drought in the State of Karak, there was a loss of
189 lives in the State due to the non-implementation of the project as per the agreement.

iv.

It is hence evident that had the agreement between the States been implemented, it would
have led to the construction of the dam and would have provided water to the drought
prone areas of the State of Karak hence saving the lives of its citizens.

v.

It is hence contended by the respondents that the agreement entered into by the State of
Mandeville and the State of Karak must be enforced, and as the in principle clearance


20

Tehri Bandh Virodhi Sangarsh Samiti v. State of U. P., (1992) Supp (1) SCC 44.

21

Basu, D. D., Administrative Law, 6th Ed., Kamal Law House, Kolkata, at p. 371.

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given by the Union Government has the same effect as that of enforcing the agreement, it
must be considered to be valid and be upheld.

C. INTERNATIONAL WATER-SHARING PRINCIPLES:


i.

The Doctrine of Equitable Apportionment lays down that every riparian or basin State or
other concerned entity justifying entitlement for a share is entitled to a fair share of water
of the said basin or inter-state river as the case may be. Upon the conception of this
theory, the emphasis was shifted from the Doctrine of Prior Appropriation to
Equitable Apportionment Theory.22 Hence the right of states in inter-State water is
determined by applying the rule of equitable apportionment, each unit getting a fair share
of the water of the common river.23

ii.

In relation to the aforementioned rule of water-sharing, it is contended that the respondent


State is justified in having sought the clearance of the Union Government. The conditions
prevailing in the State of Karak are such that they demand the implementation of the JAL
project as a solution to its problems.

iii.

Further, it is contended that as the present case deals with the environment, the project
must be implemented keeping in mind the Stockholm Declaration of 1972 which has
been described as the "Magna-Carta of our environment".

iv.

The need for economic development has been dealt with in Principle 8 of the Stockholm
Declaration of 1972 where it is said that "economic and social development is essential
for ensuring a favorable living and working environment for man and for creating
conditions on earth that are necessary for improvement of the quality of life". The
importance of maintaining a balance between economic development on the one hand
and environment protection on the other is again emphasized in Principle 11 which says
"The environmental policies of all States should enhance and not adversely affect the
present or future development potential of developing countries nor should they hamper


22

State of Nebraska v. State of Wyoming, 373 U.S. 541 (1963).

23

Report of the Krishna Water Disputes Tribunal, with Decision, Vol.1. 1973, 93, Central Water Commission, New

Delhi.

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the attainment of better living conditions for all. This has been reiterated by this Honble
Court on various occasions.24
v.

The Helsinki Rules on the Uses of the Waters of International Rivers, 1966 has
repeatedly stressed upon the Equitable Utilisation Theory of water sharing and by
adopting this, provided a status and authenticity to this theory. According to the theory,
each basin state is entitled, within its territory, to a reasonable and equitable share in the
beneficial uses of water. One of the relevant factors to be considered while deciding what
is reasonable and equitable is the extent of the drainage area in the territory of each basin
state. The Narmada Water Dispute 25 and Krishna Water Dispute 26 , the respective
Tribunals which adjudicated the matters applied the Equitable Utilisation Theory whilst
deciding the issues.

vi.

In the present case, as the lives of the citizens of the State of Karak are at stake, along
with the economical predicament of the State, and as due weightage has also been given
to the environment, it is contended by the respondents that the clearance given by the
Union Government must not be revoked.


24

Essar Oil Ltd. v. Halar Utkarsh Samiti, AIR 2004 SC 1834.

25

Report of the Narmada Water Disputes Tribunal, Vol. 1, 1978, 105, Central Water Commission, New Delhi.

26

Report of the Krishna Water Disputes Tribunal, with Decision, Vol.1. 1973, 93, Central Water Commission, New

Delhi.

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3. THE CONSTRUCTION OF THE DAM SHOULD NOT BE HALTED

A. THE PLIGHT OF THE PEOPLE AND THE NEED FOR WATER:


i.

The right to drinking water is an attribute of right to life.27 All people whatever their
stage of development of their social and economic conditions have the right to access
drinking water in quantum and of a quality equal to their basic needs. 28 But, the
inhabitants of Western Karak, due to drought have not been able to access their basic
need for water. Water is important for life and the sanctity of human life is probably the
most fundamental of the human social values.29 Loss of human life due to drought
conditions cannot be tolerated when there is an alternative to prevent the same.

ii.

Every individual has a right of access to sufficient, safe, acceptable, physically


accessible, and affordable water to meet that individuals vital human needs.30 Water is
the basic need of survival of human beings and is a part of right to life and human rights
as enshrined in Article 21 and can be served only by providing sources of water where
there is none.31 Thus, the right to water is not only a negative right but is also a positive
right.32 Moreover, the right to live in any civilized society implies the right to food,
water, decent environment, education, medical care and shelter.33 All civil, political,
social and cultural rights enshrined in UDHR and convention or under the Constitution
cannot be exercised without these basic human rights.34


27

Attakoya Thangal v. Union of India, 1990 (1) KLT 580.

28

Part II, (a) of UN Water Conference, Resolution of UNO at Mar Del Plata,1997

29

R (Pretty) v. DPP, (2002) 1 All ER 1.

30

Article 17(1), Ch. V, Berlin Rules on Water Resources, 2004

31

Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751.

32

J.P.Unnikrishnan v. State of Andhra Pradesh, AIR 1993 SC 2178.

33

Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 2911.

34

State of Orissa v. Govt. of India, (2009) 5 SCC 492.

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iii.

Drinking is the most beneficial use of water like irrigation. So the right to use water for
domestic purposes would prevail over other needs. 35 Even in the NWP 2002, 36 the
prioritisation of water allocation are broadly stated as 1)Drinking water 2)Water for
irrigation 3)Hydro power 4)Ecology 5)Agro Industries & Non-Agricultural industries
6)Navigation & other uses. Hence, at all costs the drinking water priorities must be given
due consideration and the dam construction must not be halted.

iv.

Article 21 is the repository of all important human rights essential for a person or a
citizen and when there is a natural calamity, the State as guardian of people is obliged to
provide support to the victim to save their lives.37 State of Karak has been hit by a severe
drought which is a disaster according to Sec.2 (d) of the Disaster Management Act, 2005.
In case of a drought where around 189 deaths have occurred, the State is obliged to take
immediate steps to prevent any further loss of life as well as other critical calamities. To
stop the construction of the dam would be to touch upon the rights of the people to access
water for domestic purposes.

v.

People affected by drought suffer depletion of assets, loss of livelihoods, health and even
life. Droughts are devastating as water supplies dry up, crops fail to grow, animals die
and, malnutrition and ill health become widespread. The environmental effects of
drought, including salinisation of soil and groundwater decline, increased pollution of
freshwater ecosystems and regional extinction of animal species occur.38The Constitution
envisaged establishment of a welfare State at the federal level as well as at the State level,
and in a welfare State, the primary duty of the Government is to secure the welfare of the
people. The Centre, the States and the local bodies (governance institutions) must ensure
access to a minimum quantity of potable water for essential health and hygiene to all its
citizens, available within easy reach of the household.39 Article 21 imposes an obligation


35

Delhi Water Supply & Sewage Disposal Undertaking v. State of Haryana, AIR 1996 SC 2992.

36

3.1, National Water Policy, 2002, Ministry of Water Resources, India.

37

Bipinchand J.Diwan v. State of Gujarat, AIR 2002 Guj 9.

38

Disaster management in India, New Delhi, 2011. Under the UNDP risk reduction scheme.

39

3.2,NWP, 2012

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on the State to safeguard the right to life of every person and preservation of human
rights is of paramount importance.40
vi.

When the people have faced a severe drought, it is the duty of the State to provide
security and a hope of life for those who have survived the devastating drought. States
shall progressively realise the right of access to water by providing water or the means
for obtaining water when individuals are unable, through reasons beyond their control, to
access water through their own efforts.41 Moreover, Articles 39, 47 & 48A by themselves
and collectively cast a duty on the State to secure the health of the people, improve public
health and protect and improve the environment.42 Social security has been assured
under Article 47 which imposes a positive duty on the State to raise the standard of living
and to improve public health43. Moreover, the States must cooperate in the management
of waters to prevent, control, or mitigate droughts, having due regard to the interests of
other basin States. The implementation of the AISHANI JAL project is to provide for
drinking water and making water available for agriculture as State of Karak is situated in
the East zone 44 of Kano and is an ideal place for agriculture and the drought has
hampered the entire economic activity as well. Also, merely because the Directive
Principles are not justiciable, this does not preclude the courts from taking note of the
spirit behind these principles.45

vii.

In a plethora of cases, right to livelihood46 has been included as a right to life. Livelihood
necessarily includes the basic needs of man. Basic needs of man have traditionally been
accepted to be three- food, clothing and shelter.47 Water is also the basic need for the
survival of human beings.48 No one can survive without drinking water. That which alone
makes it possible to live, leave aside what makes life livable, must be deemed to be an


40

Paschim Banga Khet Mazdoor Samiti & Ors. v. State of West Bengal & Anr., AIR 1996 SC 2426.

41

Article 17(3) (d), Berlin Rules on Water Resources, 2004.

42

M.C.Mehta v. Union of India, AIR 2002 SC 1696.

43

LIC of India & Anr. v. Consumer Education Research Centre & Ors. Etc., AIR 1995 SC 1811.

44

3 of the Moot Proposition

45

Central Inland Water Transport Corporation v. Brojo Nath , AIR 1986 SC 1571.

46

Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

47

Shantistar Builders v. Narayan Khimalal Totame, AIR 1990 SC 630.

48

Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751.

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integral component of the right to life49. It is contended that if the construction of the dam
is halted, the inhabitants of Western Karak will be placed far from accessing water for
domestic purposes which could otherwise be provided by the State.
viii.

The severe drought has caused agitation and bundh and a complete halt of the economy,
affecting the States revenue.50 Without the dam, the long term costs for people would be
much greater and lack of an income source for future generations would put increasing
pressure on the environment.51

ix.

Water is a gift of Nature. The primary use to which water is being put being drinking, it
would be a mocking nature to force the people who live on the bank of a river to remain
thirsty.52 River Aishani has a river basin of 34273 sq. kms in the State of Karak and flows
through the State of Mandeville to reach the Great Kano Sea.53 When there is a river
flowing through the State, a part of the State cannot suffer because that river water is not
within its reach. Water should be made available to water short areas.54 A Natural river is
not only meant for the people close by but it should be for the benefit of those who can
make use of it, being away from it or nearby.55

x.

All have equal rights in articles of food and water. The yoke of the chariot of life is
placed equally on the shoulders of all. All should live together with harmony supporting
one another like the spokes of a wheel of the chariot connecting its rim and the hub.56
Hence, it is contended that water is the most basic necessity without which one cannot
live and the construction of the dam must not be halted to secure the livelihood of the
inhabitants of the State of Karak.


49

Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

50

9 of the Moot Proposition

51

Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751.

52

Delhi Water Supply & Sewage Disposal Undertaking v. State of Haryana, AIR 1996 SC 2992.

53

5 of the Moot Proposition

54

3.5, NWP, Ministry of Water Resources, 2002

55

Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751.

56

Kapila Hingorani v. State of Bihar, AIR 2003 SC 3724.

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B. NO ADVERSE ECOLOGICAL IMPACT:


i.

Dams play a vital role in providing irrigation for food security, domestic and industrial
water supply, hydroelectric power and keeping flood waters back. 57 But the most
important use of a dam is to provide water for domestic purposes so that the generation
can survive. Water resources available to the country should be brought within the
category of utilisable resources to the maximum possible extent.58 Also, drinking water
needs of human beings should be the first charge on any available water.59

ii.

Any man-made activity will change the natural state of the environment. What is
important is that the ecology must not be destroyed. The construction of the dam
undoubtedly would result in the change in environment but it will not be correct to
presume that the construction of a dam will result in ecological disaster.60 Human beings
are at the centre of concerns for sustainable development. They are entitled to a healthy
and productive life in harmony with Nature.61 It is true that there was severe drought and
the State has undergone a huge loss and there has been a complete halt on the economy.
But, the State has to recover from the situation and develop. We cannot allow the dead
hand of the past to stifle the growth of the living present.62 It is made clear that the
traditional concept of development and ecology are opposed to each other is no longer
acceptable and that "Sustainable Development" is an acceptable principle in the present
day context.63 Therefore, the adherence to sustainable development principle is a sine qua
non for the maintenance of the symbiotic balance between the rights to environment and
development.64


57

Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751.

58

3.1, NWP, 2002.

59

ibid.

60

Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751.

61

Principle 1-Earth Summit, Rio Declaration.

62

National Textile Workers Union v. P.R.Ramakrishnan, AIR 1983 SC 750.

63

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

64

N.D.Jayal & Anr. v. Union of India & Ors., AIR 2004 SC 867.

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iii.

The right to development is a component of Article 21.65 This right to development


cannot be treated as a mere right to economic betterment.66 Human development is a
process of enlarging peoples choices. The most critical ones are to lead a long and
healthy life, to be educated and to enjoy a decent standard of living.67 While economic
development should not be allowed to take place at the cost of ecology, at the same time
the necessity to preserve ecology and environment should not hamper economic and
other developments. Both development and environment must go hand in hand, in other
words, there should not be development at the cost of environment and vice versa but
there should be development while taking due care and ensuring the protection of
environment.68

iv.

The right to development includes the whole spectrum of civil, cultural, economic and
political and social process, for the peoples well-being and realisation of their full
potential. It is an integral part of human rights.69 Of course, construction of a dam or
mega project is definitely an attempt to achieve the goal of wholesome development;
such works could very well be treated as integral component for development.70

v.

According to the Brundtland Report71, Sustainable Development means Development


that meets the needs of the present without compromising the ability of the future
generations to meet their own needs. But, only when the basic need for water of the
present generation is met, can the future generations lead an adequate standard of life.
Sustainable development means what type or extent of development can take place which
can be sustained by nature or ecology with or without mitigation.72 It is contended that
the construction of the dam is in line with sustainable development and its construction
must continue to meet the drinking water requirements of the people of State of Karak.

vi.

Treating the principle of Sustainable Development as Fundamental concept of our law, it


65

Samata v. State of Andhra Pradesh, AIR 1997 SC 3297.

66

Madhu Kishore v. State of Bihar, AIR 1996 SC 1864.

67

UNDP, 1990 Report, p.10 (Human Development Defined).

68

Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446.

69

UN Declaration on the Right to Development, 1986

70

N.D.Jayal & Anr. v. Union of India & Ors., AIR 2004 SC 867.

71

World Commission on Economic Development, Brundtland Report, 1987

72

Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751.

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is opined that the development of the doctrine is indeed a welcome feature but while
emphasising the need of ecological impact, a delicate balance between it and the
necessity for development must be struck. Whereas it is not possible to ignore
intergenerational interest, it is also not possible to ignore the dire need which the society
urgently requires.73 The State of Karak is in dire need of availing fresh water in order to
recover from the drought and the farmers who are dependent on water for irrigation, as
agriculture is their source of income, have been very aggrieved and also protested against
the previous Government leading to additional loss of life and property.74
vii.

The construction of the dam on the other hand would result in multifold improvements in
the environment of the area.75 The drought prone areas would become fresh again and the
flora and fauna of the wildlife sanctuary alongside the border of State of Karak too would
be in a pleasant environment when water is made available. In the present case, the dam,
is not comparable to a nuclear establishment or to a polluting industry.76 Merely because
there will be a change in the environment is no reason to presume that there will be
ecological disaster, especially when a dam is constructed to satisfy the need of the public
for water.77

viii.

Change in the environment does not per se violate any right under Article 21 of the
Constitution of Kano especially when ameliorative steps are taken not only to preserve
but to improve ecology and environment.78 In the present case, the main purpose for the
construction of the dam itself is due to the scarcity of water and drought conditions. And
also, as State of Karak has also made tourism and commerce the main source of income,
the construction of the dam will enhance the living conditions of all. Hence, there is no
violation of any right under Article 21 due to the construction of the AISHANI JAL
project.

ix.

Moreover, point 6.1 of the National Water Policy, 2002 mentions that Water resource


73

Bombay Dyeing & Manufacturing Co. Ltd. v. Bombay Environmental Action Group, (2006) 3 SCC 434.

74

7 of the Moot Proposition.

75

N.D.Jayal & Anr. v. Union of India & Ors., AIR 2004 SC 867.

76

Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751.

77

ibid.

78

ibid.

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development projects should as far as possible be planned and developed as multipurpose


projects. Provision for drinking water should be a primary consideration. Therefore, the
construction of the dam, will bear provision for drinking water on one hand and help in
the sustainable use of the renewable energy that is water, for other purposes as well on
the other, which has also been made a National Policy in the Union of Kano.79
x.

Therefore, it is contended that the construction of the dam must not be halted on the
grounds that there is no adverse environmental damage and also that water for domestic
purposes is a dire need for the inhabitants of State of Karak.

























79

2 of the Moot Proposition.

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PRAYER

Wherefore it is humbly prayed, in the light of issues raised, arguments advanced and authorities
cited, that this Honble Court may be pleased to:
1. Dismiss the present petition as not maintainable.
2. Uphold the in principle clearance given for the implementation of the AISHANI JAL
project.
3. Allow for the continuation of the dam construction.
And pass any other Order or Direction that it may deem fit in the light of Equity, Justice and
Good Conscience for which the counsel may forever pray.

Sd/(Counsel for Respondent)






















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APPENDIX


ABBREVIATIONS USED:
(P) Ltd.

Private Limited

Paragraph

Paragraphs

&

And

AIR

All India Reporter

Art.

Article

Ch.

Chapter

Co.

Company

Doc.

Document

Ed.

Edition

ER

England Reporter

Guj.

Gujarat

ISRWD Act

Inter State River Water Dispute Act

NWP

National Water Policy

Ors.

Others

p.

Page no.

pp.

Pages

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SC

Supreme Court

SCC

Supreme Court Cases

Sec.

Section

Supp.

Supplementary

TMC

Thousand Million Cubic

UN

United Nations

UNDP

United Nations Development Programme

UNO

United Nations Organisation

Vol.

Volume

WCED

World Commission on Economic Development

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EXHIBITS

CONSTITUTIONAL PROVISIONS
Art.136: Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

Art.262: Adjudication of disputes relating to waters of inter State rivers or river valleys
(1) Parliament may by law provide for the adjudication of any dispute or complaint with respect
to the use, distribution or control of the waters of, or in, any inter State river or river valley
(2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither
the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute
or complaint as is referred to in clause ( 1 ).

Art.131: Original jurisdiction of the Supreme Court


Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any
other court, have original jurisdiction in any dispute
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side and one or more other
States on the other; or
(c) between two or more States, if and in so far as the dispute involves any question (whether of
law or fact) on which the existence or extent of a legal right depends: Provided that the said
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jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant,
engagements, and or other similar instrument which, having been entered into or executed before
the commencement of this Constitution, continues in operation after such commencement, or
which provides that the said jurisdiction shall not extend to such a dispute.
Art.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
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and (2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution.
Art.21: Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to procedure
established by law.

Art.39: Certain principles of policy to be followed by the State:


The State shall, in particular, direct its policy towards securing
(a) that the citizens, men and women equally, have the right to an adequate means to livelihood;
(b) that the ownership and control of the material resources of the community are so distributed
as best to sub serve the common good;
(c) that the operation of the economic system does not result in the concentration of wealth and
means of production to the common detriment;
(d) that there is equal pay for equal work for both men and women;

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(e) that the health and strength of workers, men and women, and the tender age of children are
not abused and that citizens are not forced by economic necessity to enter avocations unsuited to
their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment.
Art.47: Duty of the State to raise the level of nutrition and the standard of living and to improve
public health
The State shall, regard the raising of the level of nutrition and the standard of living of its people
and the improvement of public health as among its primary duties and, in particular, the State
shall endeavour to bring about prohibition of the consumption except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to health.
Art.48A: Protection and improvement of environment and safeguarding of forests and wild life
The State shall endeavour to protect and improve the environment and to safeguard the forests
and wild life of the country

Seventh Schedule,List I-entry 56: Regulation and development of inter-State rivers and river
valleys to the extent to which such regulation and development under the control of the Union is
declared by Parliament by law to be expedient in the public interest.

ISRWD Act,1956
Sec.2: Definitions. In this Act, unless the context otherwise requires,-(a) " prescribed" means prescribed by rules made under this Act;
(b) " Tribunal" means a Water Disputes Tribunal constituted under section 4;
(c) " water dispute" means any dispute or difference between two or more State Governments
with respect to-MEMORIAL ON BEHALF OF RESPONDENT

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(i) the use, distribution or control of the waters of, or in, any inter- State river or river valley; or
(ii) the interpretation of the terms of any agreement relating to the use, distribution or control of
such waters or the implementation of such agreement; or
(iii) the levy of any water rate in contravention of the prohibition contained in section 7.
Sec.3: Complaints by State Governments as to water disputes.
If it appears to the Government of any State that a water dispute with the Government of another
State has arisen or is likely to arise by reason of the fact that the interests of the State, or of any
of the inhabitants thereof, in the waters of an inter- State river or river valley have been, or are
likely to be, affected prejudicially by-(a) any executive action or legislation taken or passed, or proposed to be taken or passed, by the
other State; or
(b) the failure of the other State or any authority therein to exercise any of their powers with
respect to the use, distribution or control of such waters; or
(c) the failure of the other State to implement the terms of any agreement relating to the use,
distribution or control of such waters, the State Government may, in such form and manner as
may be prescribed, request the Central Government to refer the water dispute to a Tribunal for
adjudication.
Sec.11: Bar of jurisdiction of Supreme Court and other courts.
Notwithstanding anything contained in any other law, neither the Supreme Court nor any other
court shall have or exercise jurisdiction in respect of any water dispute which may be referred to
a Tribunal under this Act.

DISASTER MANAGEMENT ACT, 2005


Sec.2 (d): "disaster" means a catastrophe, mishap, calamity or grave occurrence in any area,
arising from natural or man made causes, or by accident or negligence which results in
substantial loss of life or human suffering or damage to, and destruction of, property, or damage
to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the
coping capacity of the community of the affected area.
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NATIONAL WATER POLICY, 2012


3.2 The Centre, the States and the local bodies (governance institutions) must
ensure access to a minimum quantity of potable water for essential health and
hygiene to all its citizens, available within easy reach of the household.

NATIONAL WATER POLICY, 2002


3.1 Water resources available to the country should be brought within the category of utilisable
resources to the maximum possible extent.
3.5 Water should be made available to water short areas by transfer from other areas including
transfers from one river basin to another, based on a national perspective, after taking into
account the requirements of the areas / basins

INTERNATIONAL AUTHORITIES

BRUNDTLAND REPORT, OUR COMMON FUTURE,1987:



SUSTAINABLE DEVELOPMENT: Development that meets the needs of the present without
compromising the ability of the future generations to meet their own needs".

UNDP REPORT,1990,P.10 :

Human development is a process of enlarging peoples choices. The most critical ones are to
lead a long and healthy life, to be educated and to enjoy a decent standard of living.

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EARTH SUMMIT, RIO DECLARATION,1992:



Principle 1
Human beings are at the centre of concerns for sustainable development. They are entitled to a
healthy and productive life in harmony with nature.
Principle 3
The right to development must be fulfilled so as to equitably meet developmental and
environmental
needs of present and future generations.
Principle 4
In order to achieve sustainable development, environmental protection shall constitute an integral
part of the development process and cannot be considered in isolation from it.
Principle 9
States should cooperate to strengthen endogenous capacity-building for sustainable development
by improving scientific understanding through exchanges of scientific and technological
knowledge, and by enhancing the development, adaptation, diffusion and transfer of
technologies, including new and innovative technologies.
UN DECLARATION ON THE RIGHT TO DEVELOPMENT, 1986:

Article 1
1. The right to development is an inalienable human right by virtue of which every human person
and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural
and political development, in which all human rights and fundamental freedoms can be fully
realized.

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2. The human right to development also implies the full realization of the right of peoples to selfdetermination, which includes, subject to the relevant provisions of both International Covenants
on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural
wealth and resources.
BERLIN RULES ON WATER RESOURCES,2004:

Article 17
The Right of Access to Water
1. Every individual has a right of access to sufficient, safe, acceptable, physically accessible,
and affordable water to meet that individuals vital human needs.
2. States shall ensure the implementation of the right of access to water on a non discriminatory
basis.
3. States shall progressively realize the right of access to water by:
a. Refraining from interfering directly or indirectly with the enjoyment of the right;
b. Preventing third parties from interfering with the enjoyment of the right;
c. Taking measures to facilitate individuals access to water, such as defining and enforcing
appropriate legal rights of access to and use of water; and
d. Providing water or the means for obtaining water when individuals are unable,
through reasons beyond their control, to access water through their own efforts.
4. States shall monitor and review periodically, through a participatory and transparent
process, the realization of the right of access to water.

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