UILS ACADEMIC CIVIL MOOT, 2019

Original Writ Jurisdiction

PUBLIC INTEREST LITIGATION

BEFORE THE HON’BLE HIGH COURT OF PUNJAB & HARYANA

UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF INDIA

SURESH TANDON …………PETITIONER

VERSUS
STATE OF PUNJAB &ANR. …………RESPONDENTS

MEMORANDUM ON BEHALF OF THE RESPONDENT

 MEMORANDUM ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS

1. TABLE OF CONTENTS .......................................................................................................... 2

2. LIST OF ABBREVATIONS .................................................................................................... 2
3. INDEX OF AUTHORITIES..................................................................................................... 3
4. STATEMENT OF JURISDICTION......................................................................................... 5
5. STATEMENT OF FACTS ....................................................................................................... 5
6. QUESTIONS PRESENTED ...................................................Error! Bookmark not defined.
7. SUMMARY OF PLEADINGS ................................................................................................ 8
8. PLEADINGS .................................................................... Error! Bookmark not defined.-16
9. PRAYER……………………………………………………………………………………..17

MEMORANDUM ON BEHALF OF THE RESPONDENT

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 LIST OF ABBREVATIONS

1. § SECTION
2. ¶ PARAGRAPH
3. & AND
4. AIR ALL INDIA REPORTER
5. Annex ANNEXURE
6. Anr . ANOTHER
7. Art . ART.
8. Cl. CLAUSE
9. HC HIGH COURT
10. Hon'ble HONORABLE
11. . i.e. THAT IS
12. MANU MANUPATRA
13. No. NUMBER
14. Ors. OTHERS
15. P. PAGE
16. PIL PUBLIC INTEREST LITIGATION
17. SC SUPREME COURT
18. SCC SUPREME COURT CASES
19. .SCR SUPREME COURT REPORTER
20. .Supp. SUPPLEMENTARY

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 INDEX OF AUTHORITIES

STATUTE

1. CONSTITUTION OF INDIA, 1950

2. THE ENVIRONMENT PROTECTION ACT, 1986
3. THE ENVIRONMENTAL RULES, 1986.

BOOKS

1. Armin Rosencranz and Shyam Diwan: Environmental Law and Policy in India,
2. Oxford Leela Krishanan, P: The Environmental Law in India Butterworths-
3. Jaswal, P.S: Environmental Law, Allahabad Law Agency
.

DYNAMIC LINKS

1. www.manupatra.com
2. www.scconline.com
3. www.indinakanoon.org
4. www.scconline.com
5. www.lexisnexis.com
6. www.ebscohost.com

REPORTS

1. “Towards managing rural drinking water quality in the state of Punjab, India” a report by
world bank 2015.
2. “Water Quality Issues and Challenges in Punjab 2014 ” by The Central Ground Water
Board& Ministry of Water Resources

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 CASES

S.no Authorities Citied Pg. No.

1. Asstt. Collector of Central Excise v. Jainson Hosiery 11
2. Ashok Kumar Pandey v. The State of West Bengal and Ors.1 15

3. Commissioner of Income Tax v. Chhabil Dass Agrawals . 10

4. L. Chandrakumar V. Union of India 11
5. . Venkateshwaran v. R.S.Wadhwani AIR 1961 SC 1906 11
6. Saksham Foundation Charitable ... vs U.O.I. Thru. Secy. Environment 15

7. Kalyaneshwari vs Union of India, 15.

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 STATEMENT OF JURISDICTION

The Petitioner most humbly submits to the original civil writ jurisdiction of the Hon’ble High

Court under Article 226 of the Constitution of India.

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 STATEMENT OF FACTS

1. The State Thermal power plan situated at Bathinda is a coal based power plant and is
generating the electricity for the entire city of Bathinda.

2. The power plant emits pollutants and smoke which is quite usual to thermal plant which
are conventional and coal based. However all the precautionary measures has been taken
by the state government to ensure ecological balance of the area.

3. The residents of the nearby area suffer from many diseases such as aasthama, bronchitis
etc. However it is specifically mentioned the same has not been caused by the power plant.

4. According to study conducted by NGO XYZ it is stated that since past 7 years, hundreds
of cases of cancer have also been reported in this area and the cause attributed to cancer
is high content of uranium in water released from the power plant and the uranium in the
nearby water bodies has contaminated not only the underground but also the surface water
used for drinking.

5. The Petitioner a renowned environmentalist had filed a PIL under art-226 of the
Constitution for disclosure of state power thermal plant based on grounds of study by the
NGO mentioned above and is also demanding compensation for victims of pollution .

6. The State of Punjab is already going through power crises and shutting of same will worsen
the situation and further aggravate the energy crisis in state.

7. Also the state power plant is not responsible for uranium content causing cancer in the
present case.

8. All the facts mentioned are true and are not twisted in any manner to put the petitioner’s in
advantageous position.

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 ISSUE 1

WHETHER THE PIL FILED BEFORE THE HON’BLE COURT IS MAINTAINABLE

OR NOT ?

ISSUE 2

WHETHER THE STUDY CONDUCTED BY THE NGO CAN FORM THE SOLE BASIS
FOR FILING OF AN PIL?

ISSUE 3

WHETHER THE PIL HAS BEEN FILED IN BONA FIDE PUBLIC INTEREST ?

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 SUMMARY OF PLEADINGS

ISSUE 1: WHETHER THE PRESENT PETITION IS MAINTAINABLE BEFORE THE

HON’BLE HIGH COURT ?

It is most respectfully submitted that the present PIL is not maintainable before the Hon’ble High
Court as the petitioner has an effective alternate remedy under statutory law and therefore the
present petition is liable to be dismissed.

ISSUE 2 WHETHER THE STUDY CONDUCTED BY THE NGO CAN FORM THE
SOLE BASIS FOR FILING OF AN PIL?

It is most vehemently submitted that the PIL petition being in nature of larger public interest cannot
be solely based on study conducted by some NGO and same cannot form the basis of PIL in the
present matter where disclosure of power plant and compensation is prayed by the petitioner.

ISSUE 3 WHETHER THE PIL HAS BEEN FILED IN BONA FIDE PUBLIC INTEREST?

It is most respectfully submitted that petitioner has not filed the present petition in bona fide public
interest. The petition lacking bona fide interest holds no good in the eyes of law and therefore and
is liable to be dismissed with exemplary costs.

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 PLEADINGS

ISSUE 1- WHETHER THE PRESENT PETITION IS MAINTAINABLE BEFORE THE

HON’BLE HIGH COURT ?

At the outset it is submitted that the present writ petition in the form of PIL is not
maintainable before the Hon'ble Court on the ground mentioned below and same is liable
to be dismissed outright. It is humbly requested that the written arguments be read in
conjunction with the oral arguments of the counsel present on behalf of the State .

ALTERNATE REMEDY NOT EXHAUSTED

It is most vehemently submitted that to file a petition under Art- 226 the petitioner must have
exhausted all the remedies available to him. The Bombay High court in a recent judgement
stated that “ Litigants must exhaust all other legal remedies before approaching the high
court with PIL’s.”1 It is the case of the answering respondent that in the present case the
petitioner case is against the pollution caused by state thermal power plant which is covered
under the environment laws and for same the petitioner has an alternate remedy which is in
fact is the most effective remedy i.e to file an application under National Green Tribunal
Act, 2010. It is submitted that National Green Tribunal has been exclusively formed to deal
with the issue pertaining to environment and thus by filling the present PIL results in
defeating the very purpose of the act. Justice Dharmadhikari in the case of Commissioner of
Income Tax v. Chhabil Dass Agrawals aid2 held that “when the statutory forum is created
by law for redressal of grievances, the writ petition should not be entertained ignoring
statutory dispensation subject to certain exceptions". Further Bombay High Court said that
“Before filing PILs, the citizens, especially the activists who know the law and its
procedure, should exhaust the alternative remedies.”

1
ttps://economictimes.indiatimes.com
2 CIVIL APPEAL NO. 6704 OF 2013

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 Moreover, the enactment of the National Green Tribunal, 2010 has added a new
dimension to the existing forest governance structure. The National Green Tribunal has
explicit power to hear matters concerning the Forest (Conservation) Act, 1980 which forms
the core of the various decisions of the Godavarman case.3 When an authority has been
specifically set up to hear the issues pertaining to the nature of this writ petition, the petitioner
need not waste the time of this Hon’ble Court. The tribunals are competent enough to hear
this particular case by the virtue of L. Chandrakumar V. Union of India 4 . Alternative
remedy is a bar unless there was complete lack of jurisdiction in the officer or authority to
take action impugned5, however, the existence of a competent body6to hear this particular
case questions the maintainability of the writ petition filed. It was held this Hon’ble apex
court in Asstt. Collector of Central Excise v. Jainson Hosiery 7 said that where there is
alternative statutory remedy court should not interfere unless the alternative remedy is too
dilatory or cannot grant quick relief. In a recent case the Delhi high court has sent a PIL
seeking closure of a waste-to-energy plant near a residential colony in the capital, to the
National Green Tribunal (NGT) for hearing and subsequent decision. A bench comprising
Chief Justice D Murugesan and Justice V K Jain cited a verdict of the Supreme Court which
had said that “ the courts would desist from hearing matters, relating to environmental
issues and, rather send all of them to the green panel which came into being in 2010.
“It would be appropriate if the matter is transferred to the tribunal,” 8the bench said.

In the light of the above mentioned submission and arguments

advanced it is most humbly submit before the Hon'ble Court that the present writ petition is
not maintainable on the ground that effective alternative remedy is existing in nature and
same has not been exhausted by the petitioner and therefore the petitioner is not entitled to
seek the remedy of art-226 in the present case.

3
4 Rithwick Datta,Bhupender Yadav,Supreme Court on Forest Conservation(3rd ed, 2011.)
4
17AIR1997SC1125 ¶ 94
5
18A.V. Venkateshwaran v. R.S.Wadhwani AIR 1961 SC 1906
6
19 National Green Tribunal Act 2010
7
20 AIR 1979 SC 1889
8
https://economictimes.indiatimes.com/

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ISSUE 2 - WHETHER THE STUDY CONDUCTED BY THE NGO CAN FORM THE
SOLE BASIS FOR FILING OF AN PIL?

In respect to the issue no. 2 it is most vehemently submitted that the study conducted
by some NGO cannot form the sole basis of cause for filing of an PIL.In the recent
case the SC bench held that “Petitions should not be on the basis of the raw
information," Further one cannot ask for disclosure of the power plant which is as
asset for state in time of energy crises to be shut down just because a study by NGO
alleges it to be the cause of cancer in the area of Bathinda city.

In the present PIL Mr. Tandon has contended that according to the
study conducted by NGO it is stated that since past 7 years, hundreds of cases of
cancer have also been reported in this area and the cause attributed to cancer is high
content of uranium in water released from the power plant. According to the study the
uranium in the nearby water bodies has contaminated not only the underground but
also the surface water used for drinking. The respondent most humbly likes to draw
the attention of the hon’ble bench to the following reports of the government which
can be duly taken into consideration on account of high level of expertise and
authenticity. It is submitted that as per the study conducted by State, the Department
of Drinking Water Supply and Sanitation (DWSS) in collaboration with World Bank
the report states the reasons for high content of uranium in the area due to reasons as
follows:-

“Most hydrogeochemical studies worldwide, as well as those in Punjab, attribute

arsenic, uranium and fluoride to geogenic origins. Some authors propose anthropogenic sources
like fertilizers (fluoride, uranium), pesticides (arsenic) and fly ash from coal incineration
(uranium). Evidence of elevated nitrates in the deeper drinking water wells indicates the
occurrence of anthropogenic contaminants in the deeper wells. However the lack of consistency
between high concentrations of arsenic, fluoride and uranium, and the pattern of nitrate
occurrences, indicate the more likely source to be the underlying sediments and the chemical
conditions promoting their mobilization. Arsenic, fluoride and uranium originate from the erosion
products of the Himalayas that make up the Indo-Gangetic sedimentary basin. The irrigation

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 return flows and other effluents entering the groundwater leads to high alkalinities because of
dissolved organic matter and nutrients. Part of this water has reached the wells screens of the
DWSS wells. Because this water enhances the mobilization of the contaminants arsenic, uranium
and fluoride, the problem of the geogenic contaminants is aggravated by anthropogenic
activities “9

The Central Ground Water Board& Ministry of Water Resources in the report “Water
Quality Issues and Challenges in Punjab” states the following ;-
“It appears that Phosphatic fertilizers along with mineralogical control within the
sediments is one of the possible causes of Uranium in ground water on the basis of their
studies. These fertilizers are used extensively in the State and are known to contain
uranium ranging from 20 to 300 mg/kg.” However detailed systematic studies are
required to confirm this”10.

Therefore by taking into account the mentioned reports and various other reports by
government of India the source of uranium is not the power plant of the state rather it’s
the pesticides and other industries too. Mr Tandon being an environmentalist should have
consulted the studies, surveys and reports of various government organizations rather than
being in hurry to shut the state power plant which is not responsible for the present cancer
scenario in the area, and same is not even liable to pay compensation. In the light of the
above mentioned submissions it is submitted that petitioner relying upon study of NGO
has no cogent grounds to serve as a sufficient cause for PIL. Also it is submitted that
rather than Mr. Tandon the NGO would be in the better position to file the application for
the cause .In a recent case the SC said “why does not the NGO, instead of filing PILs,
itself ask a particular individual or organisation to make their own efforts by
approaching the court, "Why don't you advise if they have any material and
information, instead of you filing the PIL, they themselves can file the writ petitions,"

9
Para 8, Pg. 11 of “TOWARDS MANAGING RURAL DRINKING WATER QUALITY IN THE STATE OF PUNJAB, INDIA” a
report by world bank 2015.
Pg 101 of report “Water Quality Issues and Challenges in Punjab 2014 ” by The Central Ground Water Board&
10

Ministry of Water Resources

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 11
the bench asked. Same can be said about the present case where Mr. Tandon being has
filed the PIL.
Therefore in light of the above mentioned submissions and arguments

presented it sis most humbly submitted that the NGO study should not be relied upon in

the present case to make a good cause for the PIL rather an survey should be conducted

for the same so the residents can be properly compensated.

11
https://economictimes.indiatimes.com/

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ISSUE 3- WHETHER THE PIL HAS BEEN FILED IN BONA FIDE PUBLIC INTEREST ?

It is humbly submitted before the hon’ble high court that it is to be noted that Petitioner is
an inveterate litigant, who had filed many different proceedings before the Supreme Court
& HC in form of PILs. One would wonder, whether this petition had been filed bona fide?
I t is most vehemently submitted that the present PIL if not in bona fide public interest and
it is crystal clear from the fact that Mr. Tandon without acquainting himself with the full
cause for the sake of publicity and money filed the case against the state. Has he been a
true environmentalist he must have gone into the root of the cause and must have filed the
same against the other industries in the area To rely solely on the study conducted by an
NGO where there are various others major resources of same causing the clearly shows
shows that petitioner has something only against the government and is not supporting any
cause through PIL.

This is yet another case of frivolous petition masked as a public interest petition and we
find that the Petitioner is misusing the process of this court requiring strict action to be
taken against the Petitioner."at the Petitioner is misusing the process of the court for the
reasons best known to him only. Hon'ble Judges: Doraiswamy Raju and Arijit Pasayat, JJ.
In the case of Ashok Kumar Pandey v. The State of West Bengal and Ors.12 held that -
“Courts of justice should not be allowed to be polluted by unscrupulous litigants by
resorting to the extraordinary jurisdiction. A person acting bona fide and having sufficient
interest in the proceeding of public interest litigation will alone have a locus standi and
can approach the Court to wipe out violation of fundamental rights and genuine infraction
of statutory provisions, but not for personal gain or private profit or political motive or
any oblique consideration. . A writ petitioner who comes to the Court for relief in public
interest must come not only with clean hands like any other writ petitioner but also with a
clean heart, clean mind and clean objective.”

12
AIR 2003

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Allahabad High Court in the case of Saksham Foundation Charitable ... vs U.O.I. Thru. Secy.
Environment 13 dismissed the writ petition on the ground that same does not qualify as a Public
Interest Litigation at all. It is nothing, but a petition filed for extraneous considerations for personal
gains, and, therefore, deserves to be dismissed with exemplary cost in order to discourage the writ
petitioner from filing such frivolous Public Interest Litigation again.

n Kalyaneshwari vs Union of India, 14the court cited the misuse of public-interest litigation "The
Courts, while exercising jurisdiction and deciding a public interest litigation, has to take great
care, primarily, for the reason that wide jurisdiction should not become a source of abuse of
process of law by disgruntled litigant. Such careful exercise is also necessary to ensure that the
litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon
the litigant to disclose true facts and approach the Court with clean hands. Thus, it is imperative
that the petitions, which are bona fide and in public interest alone, be entertained in this category.
Abuse of process of law is essentially opposed to any public interest. One, who abuses the process
of law, cannot be said to serve any public interest, much less, a larger public interest. A petition
which lacks bona fide and is intended to settle business rivalry or is aimed at taking over of a
company or augmenting the business of another interested company at the cost of closing business
of other units in the garb of PIL would be nothing but abuse of the process of law".

Therefore in light of the above mentioned submissions and the arguments advanced it
is submitted that the present petition being a mala fide one and for misusing provision of law for
personal gain be dismissed with exemplary costs.

13
AIR 2019
14
AIR 2013

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 PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the Respondent hereby
humbly submits that this Hon’ble court may:-

1. Dismiss the PIL filed under Art-226 with exemplary costs

2. Allow the State Power Plant to continue to combat the present energy crises.
3. To probe into the matter of pollutants caused by the industries situated and direct the respective
authorities to look into the matter.
ANY OTHER ORDER AS IT DEEMS FIT IN THE INTERST OF EQUITY, JUSTICE AND GOOD
CONSCIENCE.

ALL OF WHICH IS RESPECTFULLY AFFIRMED AND SUBMITTED

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