TEAM CODE: 16R

BEFORE THE SUPREME COURT OF MINAS TIRITH

Special Leave Petition filed under Article 136 of the Constitution of Minas Tirith

MEMORIAL FILED ON BEHALF OF THE RESPONDENTS

Special Leave Petition No.____ of 2015

M/s. Marvolo Mining Company ...Petitioner No.1

Central Government of the Republic of Minas Tirith ...Petitioner No.2

v.

State of East Pradesh ...Respondent No.1

Mr. Percival Brian ...Respondent No.2

Most Respectfully Submitted to the Hon’ble Chief Justice & Other Companion

Judges of the Supreme Court of Minas Tirith

COUNSELS APPEARING ON BEHALF OF ‘RESPONDENTS’

THE 9TH PRO BONO ENVIRO NATIONAL MOOT COURT COMPETITION 2015, SCHOOL OF
EXCELLENCE IN LAW, CHENNAI

~SUBMISSION ON BEHALF OF RESPONDENT~

-TABLE OF CONTENTS- PAGE II OF XVI

TABLE OF CONTENTS

INDEX OF AUTHORITIES......................................................................................................... III

LIST OF ABBREVIATIONS ....................................................................................................... IX

STATEMENT OF JURISDICTION............................................................................................. XI

STATEMENT OF FACTS .......................................................................................................... XII

ISSUES RAISED ......................................................................................................................... XII

SUMMARY OF ARGUMENTS ............................................................................................... XIV

ARGUMENTS ADVANCED ........................................................................................................ 1

1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE? ......................... 1

1.1. THAT SUO-MOTU COGNIZANCE BY NGT WAS JUSTIFIED. .............................................. 1

1.2. THAT THE PIL WAS FREE FROM ANY PERSONAL INTEREST AND WAS BONA FIDE............ 1

1.3. THAT THE SUPREME COURT HAS THE POWER TO DISMISS THE SLP. .............................. 2

2. WHETHER NGT HAS SUO MOTU POWERS? ............................................................... 5

2.1. THAT THE TRIBUNAL HAS BEEN ESTABLISHED WITH THE POWERS OF A COURT. ............. 5

2.2. THAT NGT HAS BEEN ESTABLISHED AS THE SUBSTITUTE OF HIGH COURT IN

ENVIRONMENT MATTERS. ......................................................................................................... 6

2.3. THAT NGT CAN EXERCISE SUO-MOTU POWERS IN THE INTEREST OF JUSTICE. .............. 7

3. WHETHER THERE WAS A CRIMINAL VIOLATION OF MINING LICENSE AND

WHETHER IT CAUSED THE ENVIRONMENTAL DEGRADATION? ............................... 8

3.1. THAT THE ACT OF MARVOLO MINING COMPANY IS PUNISHABLE UNDER MMDR ACT
1957... ...................................................................................................................................... 8

3.2. THAT THE ACT OF THE MARVOLO MINING COMPANY ATTRACTS PENAL PROVISIONS. ... 8

~SUBMISSION ON BEHALF OF RESPONDENT~

-TABLE OF CONTENTS- PAGE II OF XVI

3.3. THE PENAL PROVISIONS CAN BE IMPUTED ALONG WITH THE PROVISIONS OF THE MMDR
ACT… ……………………………………………………………………………………….10

3.4. THAT THE ACT OF MARVOLO MINING COMPANY CAUSED ENVIRONMENTAL

DEGRADATION........................................................................................................................ 11

4. WHETHER THE MINING IN THE AREA IS AGAINST ENVIRONMENTAL SAFETY

AND VIOLATES THE RIGHTS OF THE TRIBAL PEOPLE? .............................................. 13

4.1. THAT THE GOVERNMENT IS DUTY BOUND TO PROTECT THE ENVIRONMENT. ................ 13

4.2. THE SAID ENVIRONMENTAL IMPACT ASSESSMENT IS TOTALLY VIOLATIVE OF THE

PRESCRIBED PROCEDURE. ....................................................................................................... 14

4.3. THAT THE MANDATORY PUBLIC HEARING WAS NOT CONDUCTED. .............................. 16

4.4. THE PRINCIPLE OF SUSTAINABLE DEVELOPMENT HAS BEEN VIOLATED. ....................... 16

4.5. THE PRECAUTIONARY PRINCIPLE HAS BEEN VIOLATED. ............................................... 17

4.6. THE RIGHTS OF THE TRIBAL PEOPLE HAVE BEEN VIOLATED. ........................................ 17

4.7. THE SOURCE OF LIVELIHOOD OF THE TRIBAL PEOPLE HAS BEEN TAKEN AWAY............. 18

PRAYER .................................................................................................................................... XVI

~SUBMISSION ON BEHALF OF RESPONDENT~

-INDEX OF AUTHORITIES- PAGE III OF XVI

INDEX OF AUTHORITIES

CASES

1. A.P. Pollution Control Board v. Prof. M.V. Nayud, [1999] 1 SCR 235. ................................ 16
2. A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and Ors. , [1999]1SCR235. ..... 17
3. A.P. State Fishermen Development and Welfare Association v. District Collector and Ors,
2010 (2) ALD 300. .................................................................................................................. 19
4. A.V. Papayya Sastry v. Govt. of A.P., AIR 2007 SC 1546 ....................................................... 4
5. Ambica Quarry Works v. State of Gujarat and Ors., [1987] 1 SCR 562. .............................. 17
6. Arunachalam v. P.S.R. Sadanantham, (1979) 2 SCC 297 ........................................................ 3
7. Ashok Kumar Tripathi v. Union of India and others, 2000(1) JLJ 208. ................................. 19
8. Ashok Nagar Welfare Association v. R.K. Sharma, AIR 2002 SC 335 .................................... 2
9. Associated Cement Companies v. Sharma, P.N., AIR 1965 SC 1595 ...................................... 3
10. B.I.S.N. Co. v. Jasjit Singh, AIR 1964 SC 1451 ....................................................................... 3
11. Bachan Singh v. State of Punjab, AIR 1982 SC 1325. ........................................................... 18
12. Badri Narayan v. Kamdeo Prasad, AIR 1967 SC 38. .............................................................. 4
13. Baigana v. Deputy Collector of Consolidation, AIR 1978 SC 944 .......................................... 4
14. Balco Employees' Union (Regd.) v. Union of India and Ors., (2002) ILL J550 SC. ............... 2
15. Balvantrai Chimanlal Trivedi v. Nagrashana, M.N., AIR 1960 SC 1292 ................................ 4
16. Bharta Bank Ltd. v. Employees,AIR 1950 SC 188. ................................................................. 5
17. Chandi Prasad Chokhani v. State of Bihar, AIR 1961 SC 1708 .............................................. 3
18. Charan Lal Sahu v. Union of India, AIR 1990 SC 1480. ....................................................... 18
19. Concord of India Insurance Co. v. Nirmala Devi, AIR 1979 SC 1666 ................................ 1, 3
20. Council of Scientific and Industrial Research v. K. G. S. Bhatt (1989) AIR 1972 (SC) .......... 4
21. Dhakeshwari Cotton Mills v. Commissioner of I.T., AIR 1955 SC 65 ..................................... 3
22. East India Hotels v. Syndicate Bank, 1991 (6) JT 112 ............................................................. 3
23. Esher Singh v. State of A.P., (2004) 11 SCC 585 ..................................................................... 2
24. Fertilizer Corporation Kamagar Union v. Union Of India, [1982] 2 SCR 365 ....................... 2

~SUBMISSION ON BEHALF OF RESPONDENT~

-INDEX OF AUTHORITIES- PAGE IV OF XVI

25. Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844. ......................................... 18
26. Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors.,AIR 1981 SC 606.
................................................................................................................................................... 5
27. Harinagar Sugar Mills v. Shyam Sunder Jhunjhunwala, AIR 1961 SC 1669 ......................... 3
28. Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; Dolly Chandra v.
Chairman Jee, (2005) 9 SCC 779. ......................................................................................... 18
29. India general Navigation and Railway Co. Ltd. v. Workmen, AIR 1960 SC 219 .................... 3
30. Indian Council for Enviro Legal Action and Anr. v. Union of India (UOI) and Ors., ILR 1997
KAR 2956. .............................................................................................................................. 15
31. Indian Oil Corpn. v. NEPC India Ltd. and Ors., (2006) 6 SCC 736. ....................................... 9
32. Jamshed Hormusji Wadia v. Board of Trusteers, Port of Mumbai, AIR 2004 SC 1815......... 2
33. Janata Dal v. H.S. Chowdhary and Ors. 1993 Cri LJ 600. ...................................................... 2
34. K. Guruprasad Rao v. State of Karnataka and others, 2013 Indlaw SC 628. ........................ 19
35. Kishanchand Narsinghdas Bhatia v. State Transport Appellate Authority, AIR 1968 SC 1461
............................................................................................................................................... 1, 3
36. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125 ....................................................... 4
37. M.C. Mehta v. Kamal Nath,(1997) 1 SCC 388. ...................................................................... 13
38. M.C. Mehta v. Union of India (Trapezium matter),AIR 1997 SC 734. .................................. 17
39. M.C. Mehta v. Union of India, (1998) 9 SCC 589.................................................................. 13
40. M/s. Bengal Chemical & Pharmaceutical Works Ltd. v. Employees, AIR 1968 SC 633 ..... 1, 3
41. Malhu Yadav and Ors. v. State of Bihar, AIR 2002 SC 2137. ............................................... 10
42. Maneka Gandhi v. Union of India. AIR 1978 SC 597. .......................................................... 18
43. N.D. Jayal and Anr. v. Union of India (UOI) and Ors., (2004) 9 SCC 362. ............................ 7
44. N.D. Jayal and Anr. v. Union of India (UOI) and Ors., (2004)9SCC362. ............................. 17
45. Narmada Bachao Andolan v. Union of India and Ors., (2002) 10 SCC 408. ........................ 16
46. Om Kumar v. Union of India, AIR 2000 SC 3689. ................................................................. 18
47. Onkar Nath Mishra and Ors. v. State (NCT of Delhi), (2008) 2 SCC 561. .............................. 9
48. Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest Writ Petition (Civil)
No. 180 OF 2011.................................................................................................................... 19
49. People's Union for Democratic Rights and Ors. v. Union of India: AIR 1982 SC 1473......... 2

~SUBMISSION ON BEHALF OF RESPONDENT~

-INDEX OF AUTHORITIES- PAGE V OF XVI

50. People's Union for Democratic Rights v. Union of India, AIR 1982 SC ............................... 19
51. Pratap Singh v. Shri Krishna Gupta, AIR 1956 SC 140. ....................................................... 11
52. Raigarh Jute Mills Ltd. V. Eastern Railway, AIR 1958 SC 525 .............................................. 3
53. Rajkrishna Bose v. Binod Kanungo, AIR 1954 SC 202 ........................................................... 3
54. Ramakakant Rai v. Madan Rai, AIR 2004 SC 77..................................................................... 3
55. Rural Litigation and Entitlement Kendra v. State of U. P, AIR 1988 SC 2187. .................... 11
56. Rural Litigation and Entitlement Kendra v. State of U.P, 1989 Supp (1) SCC 504. ............. 19
57. Rural Litigation and Entitlement Kendra, Dehradun and Ors. v. State of U.P. and Ors., AIR
1985 SC 652............................................................................................................................ 12
58. S.P. Gupta v. Union of India [1982] 2 SCR 365 ...................................................................... 2
59. Samatha v. State of Andhra Pradesh & Ors., AIR 1997 SC 3297. ........................................ 19
60. Shantisar Builders v. Narayanan Khimalal Totamen, AIR 1990 SC 630. ............................. 18
61. Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and Ors., 1987 1 SCR 458. ....... 2
62. State of Bombay v. Rusy Mistry, AIR 1960 SC 391.................................................................. 2
63. State of Bombay v. S.L. Apte, AIR 1961 SC 578. ................................................................... 10
64. State of Gujarat and Anr. v. Gujarat Revenue Tribunal Bar Association and Anr., AIR 2013
SC 107....................................................................................................................................... 6
65. State of Gujarat and Anr. v. Gujrat Revenue Tribunal Bar Association and Anr., AIR 2013
SC 107....................................................................................................................................... 5
66. State of H. P. v. Kailash Chand Mahajan, AIR 1992 SC 1277. ............................................... 4
67. State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And
Others, Civil Appeal Nos. 104-105 Of 2001. ......................................................................... 19
68. State of Rajasthan v. Sohan Lal, (2004) 5 SCC 573 ................................................................. 3
69. Subhash Kumar v. State of Bihar,(1991) 1 SCC 598 .............................................................. 19
70. Suo-motu v. State of Rajasthan, 2007 (1) ILR (Raj) 758.......................................................... 7
71. Suo-motu v. The State of Karnataka Rep. by the Chief Secretary and Ors. W.P. No.
14029/2008. .............................................................................................................................. 7
72. Supreme Court Bar Association v. B.D. Kaushik, (2011) 13 SCC 774. ................................... 5
73. Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021. .................................................. 18
74. Sushil Kumar Gupta v Joy Shanker Bhattacharjee, AIR 1971 SC 1543. ................................. 9

~SUBMISSION ON BEHALF OF RESPONDENT~

-INDEX OF AUTHORITIES- PAGE VI OF XVI

75. Union of India v. Madras Bar Association AIR 2015 SC 1571. .............................................. 6
76. Vellore Citizens Welfare Forum v. Union of India. AIR1996SC2715. .................................. 17
77. Vishaka v. State of Rajasthan, (1997) 6 SCC 241 .................................................................. 19
78. Workmen v. Western India Match Co., AIR 1966 SC 976 ................................................... 1, 3
79. Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467 ......................................... 2

BOOKS

1. Basu D.D, Constitution of India, 14th edition 2009, LexisNexis, Butterworths Wadhwa
Publication Nagpur.

2. Behura N.K. Panigrahi Nilakantha, Tribals and the Indian Constitution, Edition 2006,
Rawat Publications.

3. Desai. A. Ashok, Environmental Jurisprudence, 2nd Edition 2002, Modern Law House.

4. Dhirajlal & Ratanlal, The Law of Torts.26th edition 2012, LexisNexis Butterworths
Wadhwa.

5. Divan Shyam, Rosencranz Armin, Environmental Law and policy in India, Second
Edition 2004, Oxford India paperbacks.

6. Doabia T.S, Environmental & Pollution laws in India, 1st Edition 2005, and Wadhwa
Nagpur.

7. Jain M.P., Indian Constitutional Law, 6th Edition 2011, LexisNexis Butterworth
Wadhwa Nagpur.

8. Jaswal P.S., Environmental Law, 2nd Edition 2006, Allahabad Law agency.

9. Karkara G.S., Environmental Law, 1st Edition, 1999, Central Law Publications.
10. Leelakrishnan P., Environmental Case Law Book, 2nd Edition 2006, LexisNexis
Butterworths.

11. Maheshwara N. Swamy, Law relating to Environmental Pollution and Protection, 2nd

~SUBMISSION ON BEHALF OF RESPONDENT~

-INDEX OF AUTHORITIES- PAGE VII OF XVI

Edition 2003, Asia Law House.

12. Rajendra Prasad, Law of Social Status, Edition 1998, Hindu Law House.
13. Seervai H.M., Constitutional law of India, 4th Edition 2002, Volume 2, Universal Book
Traders.

14. Shukla V.N, Constitution of India, 11th edition 2008, Eastern Book Company.
15. Singh Bhavjit, Digest of Land Acquisition & Compensation cases, Edition (2000-
2010) Law Times Publication.

16. Sumeet Malik, Environmental Law, 1st Edition 2008, Eastern Book Company.

LEGAL DATABASES

1. Manupatra
2. SCC Online
3. West Law
4. Hein Online

LEXICONS

1. Aiyar Ramanathan P, Advanced Law Lexicon, 3rd Edition, 2005, Wadhwa Nagpur.

2. Garner Bryana, Black‟s Law Dictionary,7th Edition,1999

LEGISLATIONS

1. Environment Protection Act, 1986.

2. Air (Prevention and Control of Pollution) Act, 1981.

3. Forest (Conservation) Act, 1980.

4. Indian Forest Act, 1927.

~SUBMISSION ON BEHALF OF RESPONDENT~

-INDEX OF AUTHORITIES- PAGE VIII OF XVI

5. Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forests Right)

Act, 2006.

6. Coastal Regulation Zone Notification, 2011.

7. Coastal Regulation Zone Notification, 1991.

8. Wildlife Protection Act, 1972.

9. The Constitution of India, 1950.

10. Panchayats (Extension to the Scheduled Areas) Act, 1996.

CONVENTIONS

1. United Nations Framework Convention on Climate Change, 1992.

2. Convention of International Trade In Endangered Species Of Wild Fauna And Flora,

1975.

3. Convention on Migratory Species, 1983.

4. The Indigenous and Tribal Populations Convention, 1957 (ILO Convention 107).

5. The Rio Submit, 1992.

6. International Convention on Civil and Political Rights, 1966.

7. International Covenant on Economic, Social and Cultural Rights, 1966.

~SUBMISSION ON BEHALF OF RESPONDENT~

-LIST OF ABRREVIATIONS- PAGE IX OF XVI

LIST OF ABBREVIATIONS

AIR All India Reporter

Ald. Allahabad
Anr. Another
Art. Article
Cal. Calcutta
Co. Company
Cri. Criminal
ICCPR International Convention on Civil and Political
Rights,1966
ICESCR International Covenant on Economic, Social
and Cultural Rights
ILO International Labour Organisation
IPC Indian Penal Code
IUCN International Union for Conservation of Nature
JLJ Jabalpur Law Journal
KAR Karnataka
LJ Law Journal
Ltd. Limited
Mad. Madras
MoEF Ministry of Environment and Forests
MMDR Mines and Minerals (Development and
Regulation)
Nos. Numbers
Ori. Orissa
Ors. Others
PIL Public Interest Litigation

~SUBMISSION ON BEHALF OF RESPONDENT~

-LIST OF ABBREVIATIONS- PAGE X OF XVI

Raj. Rajasthan
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SLP Special Leave Petition
u/s Under Section
U.P. Uttar Pradesh
UNFCCC United Nations Framework Convention on
Climate Change
WP Writ Petition

~SUBMISSION ON BEHALF OF RESPONDENT~

-STATEMENT OF JURISDICTION- PAGE XI OF XVI

STATEMENT OF JURISDICTION

THE PETITIONERS HAVE APPROACHED THE HON’BLE SUPREME COURT OF MINAS TIRITH

UNDER ARTICLE 136 OF THE CONSTITUTION OF MINAS TIRITH WHICH READS AS UNDER:

“Article 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 Minas Tirith.

(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.”

“Article 139A. Transfer of certain cases

(1) Where cases involving the same or substantially the same questions of law are pending
before the Supreme Court and one or more High Courts or before two or more High Courts and
the Supreme Court is satisfied on its own motion or an application made by the Attorney-General
of India or by a party to any such case that such questions are substantial questions of general
importance, the Supreme Court may withdraw the case or cases pending before the High Court
or the High Courts and dispose of all the cases itself:

Provided that the Supreme Court may after determining the said questions of law return any case
so withdrawn together with a copy of its judgment on such questions to the High Court from
which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to
dispose of the case in conformity with such judgment.

(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any
case, appeal or other proceedings pending before any High Court to any other High Court.”

~SUBMISSION ON BEHALF OF RESPONDENT~

-STATEMENT OF FACTS- PAGE XII OF XVI

STATEMENT OF FACTS

1. The Republic of Minas Tirith is the world’s third most populous country. In the State of East
Pradesh which has a coastline of 1,000 km, the natural resources including iron ore and coal
are found in abundance. Around 40% of the State’s population consists of tribal people who
live in the forests.

2. The Central Government decided to lease out the mines. With the approval of the Cabinet,
the Government has notified the “New Mining Deal, 2015” which is its master plan on
mining. Subsequent to the plan, it had auctioned iron mines in blocks to several foreign
mining giants. The auction was won by M/s. Marvolo Miners Inc.

3. The MoEF gave the clearance for mining activities. The MoEF followed procedural
requirements and all the required assessments were carried out before granting the license.

4. In East Pradesh, Marvolo’s license was restricted to iron blocks A, B and C in which mining
was permitted only up to a depth of 100 feet. Marvolo mined in blocks A, B and D. They left
C untouched. This was only identified by a news reporter’s secret investigation. Mr. Percival
Brian who was a candidate campaigning for the elections filed a PIL before the High Court
of East Pradesh against the whole mining activity and sought a criminal case against Marvolo
for violations. The court ordered SEIAA to conduct an investigation.

5. The SEIAA held a press conference wherein it was informed that more than 100 feet was
mined. It also categorically announced that the license should not have been granted to any of
these mining blocks as they critically affect the tribal population and the environment.

6. The NGT convened a forum on Saturday and granted a suo motu injunction against any
further mining and ordered the mine to be sealed until further orders.

7. Aggrieved by this and the High Court PIL, Marvolo decided to approach the Supreme Court
of Minas Tirith. The Supreme Court found this matter to be of great importance and decided
to take up the case.

~SUBMISSION ON BEHALF OF RESPONDENT~

-ISSUES RAISED- PAGE XIII OF XVI

ISSUES RAISED

The following issues have arisen for consideration before the Hon’ble Court:-

I. Whether the SLP filed is maintainable or not?

II. Whether the NGT has suo motu powers?

III. Whether there was a criminal violation of mining license and whether it caused the
environmental degradation?

IV. Whether the mining in the area is against environmental safety and violates the rights of
the tribal people?

~SUBMISSION ON BEHALF OF RESPONDENT~

-SUMMARY OF ARGUMENTS- PAGE XIV OF XVI

SUMMARY OF ARGUMENTS

I. Whether the SLP filed is maintainable or not?

It is submitted before the Apex Court that Special Leave Petition by way of Article 136
of the Constitution of Minas Tirith can be invoked when a substantial question of law and
grave miscarriage of injustice takes place. It is further submitted that this jurisdiction of
the Apex Court must be invoked sparingly. Therefore in the instant matter no substantial
question of law is involved and further no apparent grave miscarriage of justice has taken
place. It is therefore clear that the current Special Leave Petition is not maintainable
before the Apex court.

II. Whether the NGT has suo motu powers?

It is most respectfully submitted that National Green Tribunal (NGT) has been
established as quasi-judicial body with all the trappings of the court. Furthermore the
NGT is not subordinate to High Court as the revisional jurisdiction of the National Green
Tribunal lies with the Supreme Court. Therefore the NGT can exercise discretionary
powers involving suo motu cognizance to meet the ends of justice.

III. Whether there was a criminal violation of mining license and whether it caused the
environmental degradation?

It is most respectfully submitted that the act of the Marvolo Mining Company attracts
penalties under Contracts Act and in addition to that of Minas Tirith Penal Code. It is
further contended that Indian Penal Code is the general law of land, therefore it shall be
applicable event though the statute or legislation bars it. Furthermore the offence

~SUBMISSION ON BEHALF OF RESPONDENT~

-SUMMARY OF ARGUMENTS- PAGE XV OF XVI

committed by Marvolo Mining license is different under the two statues and is liable to
be under both. On the same time since the ingredients of the offences committed are
different therefore the protection under Article 20(2) of the Constitution of Republic of
Minas Tirith is not available.

IV. Whether the mining in the area is against environmental safety and violates the
rights of the tribal people?

It is submitted that the New Mining Deal has been brought by the Government of Minas
Tirith in order to meet the military demands and moreover to remain stable under
financial pressure. In the pursuit of this the Govt. in the garb of New Mining Deal has
flouted all standards norms and procedures in granting mining license. Furthermore the
government has not even taken into consideration the impact of mining on the
environment which has led to environmental degradation. The government on the same
time was apathetic to the life of tribal people whose life totally depends upon the forest
produce. It is finally contended that the New Mining Deal has been implemented without
the application of logic and has lead or will in future lead to grave environmental
consequences along with the degrading life of the tribal people.

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 1

ARGUMENTS ADVANCED

1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE?

It is humbly submitted before this Hon’ble Court that the instant special leave petition1 is
maintainable as circumstances have arisen which involve a substantial question of law which
need to be addressed by this Court. Thus, the Petitioner has approached this Court against the
order of the NGT under Article 136 of the Minas Tirith Constitution.

1.1.THAT SUO-MOTU COGNIZANCE BY NGT WAS JUSTIFIED.

1.1.1. It is submitted that the general principle is that the Supreme Court would not disturb
the decisions of specially constituted authorities or tribunals, 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.2
1.1.2. Where a tribunal has exercised its discretionary power after a consideration of all the
relevant facts, the Supreme Court would not interfere.3 The act of NGT was justified
and did not constitute any special circumstance or grave injustice.

1.2.THAT THE PIL WAS FREE FROM ANY PERSONAL INTEREST AND WAS BONA FIDE.
1.2.1. It is submitted that the common rule of locus standi is relaxed so as to enable the
Court to look into the grievances complained on behalf of the poor, deprived,

1
Hereinafter referred as SLP.
2
Kishanchand Narsinghdas Bhatia v. State Transport Appellate Authority, AIR 1968 SC 1461; Concord of India
Insurance Co. v. Nirmala Devi, AIR 1979 SC 1666.
3
M/s. Bengal Chemical & Pharmaceutical Works Ltd. v. Employees, AIR 1968 SC 633; Workmen v. Western India
Match Co., AIR 1966 SC 976.

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 2

illiterate and the disabled who cannot vindicate the legal wrong or legal injury cause
to them for any violation of any constitutional or legal right.4
1.2.2. Where administrative decisions related to development are harmful to the
environment and jeopardize people's right to natural resources such as air or water.5
1.2.3. [Arguendo]It is submitted that the Court in exercise of powers under Article 32 and
Article 226 of the Constitution of India can entertain a petition filed by any interested
person in the welfare of the people who is in a disadvantaged position and, thus, not
in a position to knock on the doors of the Court. The Court is constitutionally bound
to protect the fundamental rights of such disadvantaged people so as to direct the
State to fulfil its constitutional promises6.
1.2.4. It is further submitted that in an appropriate case, although the petitioner might have
moved a Court in his private interest and for redressal of the personal grievances, the
Court in furtherance of the public interest may treat it necessary to enquire into the
state of affairs of the subject of litigation in the interest of justice.7

1.3.THAT THE SUPREME COURT HAS THE POWER TO DISMISS THE SLP.

1.3.1. It is respectfully submitted before the Hon’ble Court that Article 136 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.8 The power is vested in the Supreme Court but the
right to invoke the Court’s jurisdiction is vested in no one and the power is required
to be exercised only in exceptional circumstances for furthering the ends of justice.9

4
Fertilizer Corporation Kamagar Union v. Union Of India, [1982] 2 SCR 365 , S.P. Gupta (supra), People's Union
for Democratic Rights (supra), Dr. D.C. Wadhwa v. State of Bihar [1987]1SCR798 and Balco Employees' Union
(Regd.) v. Union of India and Ors., (2002) ILL J550 SC.
5
Balco (supra).
6
S.P. Gupta v. Union of India [1982] 2 SCR 365; People's Union for Democratic Rights and Ors. v. Union of India:
AIR 1982 SC 1473 , Bandhua Mukti Morcha v. Union of India and Ors. [1984] 2 SCR 67 and Janata Dal v. H.S.
Chowdhary and Ors. 1993 Cri LJ 600.
7
Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and Ors., 1987 1 SCR 458.
8
Ashok Nagar Welfare Association v. R.K. Sharma, AIR 2002 SC 335; State of Bombay v. Rusy Mistry, AIR 1960
SC 391; Jamshed Hormusji Wadia v. Board of Trusteers, Port of Mumbai, AIR 2004 SC 1815; Esher Singh v. State
of A.P., (2004) 11 SCC 585.
9
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467.

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 3

1.3.2. The term ‘tribunal’, used in juxtaposition with the ‘Court’, refers to quasi-judicial
tribunals, other than the ordinary courts which have the trappings of a Court.10 The
general principle is that the Supreme Court would not disturb the decisions of
specially constituted authorities or tribunals, 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.11
1.3.3. It is reverentially submitted that a special leave is granted not as a matter of course
but only for good and sufficient reasons on well-established practices of the Supreme
Court.12 Where a tribunal has exercised its discretionary power after a consideration
of all the relevant facts, the Supreme Court would not interfere.13
1.3.4. It is deferentially submitted that under Article 136 it is not that any and every error is
envisaged to be corrected in exercising powers. Ordinarily, the Supreme Court would
refuse to entertain an appeal under Article 136 from the order of an inferior tribunal
where the litigant has not availed himself of the ordinary remedies available to him at
law,14 e.g. a statutory right of appeal15 or revision16; or has not appealed from the final
order of an appellate tribunal on appeal from the decision of the inferior tribunal.17
1.3.5. It is further submitted that the powers under this Article are special and
extraordinary.18 The Supreme Court only intervenes where injustice, equity and good
conscience require such intervention.19An application for special leave may be
summarily rejected where the Court is satisfied that no substantial injustice is done.20

10
Associated Cement Companies v. Sharma, P.N., AIR 1965 SC 1595.
11
Kishanchand Narsinghdas Bhatia v. State Transport Appellate Authority, AIR 1968 SC 1461; Concord of India
Insurance Co. v. Nirmala Devi, AIR 1979 SC 1666.
12
Ramakakant Rai v. Madan Rai, AIR 2004 SC 77; Arunachalam v. P.S.R. Sadanantham, (1979) 2 SCC 297; P.S.R.
Sadanantham v. Arunachalam, (1980) 3 SCC 141.
13
M/s. Bengal Chemical & Pharmaceutical Works Ltd. v. Employees, AIR 1968 SC 633; Workmen v. Western India
Match Co., AIR 1966 SC 976.
14
Dhakeshwari Cotton Mills v. Commissioner of I.T., AIR 1955 SC 65; Raigarh Jute Mills Ltd. v. Eastern Railway,
AIR 1958 SC 525; East India Hotels v. Syndicate Bank, 1991 (6) JT 112.
15
Rajkrishna Bose v. Binod Kanungo, AIR 1954 SC 202; Harinagar Sugar Mills v. Shyam Sunder Jhunjhunwala,
AIR 1961 SC 1669; India general Navigation and Railway Co. Ltd. v. Workmen, AIR 1960 SC 219.
16
B.I.S.N. Co. v. Jasjit Singh, AIR 1964 SC 1451.
17
Chandi Prasad Chokhani v. State of Bihar, AIR 1961 SC 1708.
18
State of Rajasthan v. Sohan Lal, (2004) 5 SCC 573.
19
A.V. Papayya Sastry v. Govt. of A.P., AIR 2007 SC 1546; Baigana v. Deputy Collector of Consolidation, AIR
1978 SC 944.
20
Balvantrai Chimanlal Trivedi v. Nagrashana, M.N., AIR 1960 SC 1292.

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 4

1.3.6. It is submitted that in case of L Chandra Kumar v. Union of India 21, it was held that
all decisions of these Tribunals will, however, be subject to scrutiny before a Division
Bench of the High Court within whose jurisdiction the concerned Tribunal falls.
Special leave will not be granted when there is no failure of justice or when
substantial justice is done, though the decision suffers from some legal errors.22
1.3.7. It is contended that this court is not bound to go into the merits and even if it were to
do so, and declare the law or point out the error, still it may not interfere if the justice
of the case on facts doesn’t require interference or if it feels that the relief could be
moulded in a different fashion.23

21
L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
22
Council of Scientific and Industrial Research v. K. G. S. Bhatt (1989) AIR 1972 (SC); see also State of H. P. v.
Kailash Chand Mahajan, AIR 1992 SC 1277.
23
Badri Narayan v. Kamdeo Prasad, AIR 1967 SC 38.

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 5

2. WHETHER NGT HAS SUO MOTU POWERS?

It is most respectfully submitted that NGT is very well justified in exercising suo-motu powers to
meet the purpose for which it was established. The legislature in its wisdom has created tribunals
and transferred the work which was regularly done by civil courts to them, as it was found
necessary to do so in order to provide efficacious remedy and also to reduce burden on the civil
courts and further, also to save the aggrieved person from bearing the burden of heavy court
fees.24

2.1.THAT THE TRIBUNAL HAS BEEN ESTABLISHED WITH THE POWERS OF A COURT.

2.1.1. It is submitted before the Apex Court that to distinguish between court and a tribunal
one cannot go by mere nomenclature. One has to examine the functions of a Tribunal
and how it proceeds to discharge those functions.25
2.1.2. It is further submitted that the Tribunal has general powers to do what is necessary for
it to administer environmental justice.26 Moreover it is a well-known rule of statutory
construction that a Tribunal or body should be considered to be endowed with such
ancillary or incidental powers as are necessary to discharge its functions effectively
for the purpose of doing justice between the parties.27
2.1.3. It is most respectfully submitted that the NGT has all the trappings of a court by lieu
of Section 19(4) of NGT Act 2010 which confers powers vested in a civil court to
NGT. Moreover, according to Section 19(5) of NGT Act 2010 the proceedings before
the NGT are deemed to be judicial proceedings. Therefore it is established that NGT
is not a common tribunal but has the force of a civil court.

24
State of Gujarat and Anr. v. Gujrat Revenue Tribunal Bar Association and Anr., AIR 2013 SC 107.
25
Bharta Bank Ltd. v. Employees, AIR 1950 SC 188.
26
Supreme Court Bar Association v. B.D. Kaushik, (2011) 13 SCC 774.
27
Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors., AIR 1981 SC 606.

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 6

2.2.THAT NGT HAS BEEN ESTABLISHED AS THE SUBSTITUTE OF HIGH COURT IN

ENVIRONMENT MATTERS.

2.2.1. It is most respectfully submitted that power and jurisdiction of courts are controlled
by legislative enactments. If the jurisdiction of the High Court can be created by
providing for appeals, revisions and references, jurisdiction can also be taken away by
deleting the provisions for appeals, revisions and references.
2.2.2. It is further submitted that the legislature has the power to create tribunals and confers
jurisdiction on them to decide disputes in regard to matters arising from special
enactments.28 As has been held by Hon’ble Supreme Court in Union of India v.
Madras Bar Association29 Recognized constitutional conventions pertaining to the
Westminster model, do not debar the legislating authority from enacting legislation to
vest adjudicatory functions, earlier vested in a superior court, with an alternative
court/tribunal. Exercise of such power by the Parliament would per se not violate any
constitutional convention.
2.2.3. The High Court's power of judicial superintendence, even under the amended
provisions of Article 227 is applicable, provided that two conditions are fulfilled;
firstly, such Tribunal, body or authority must perform judicial functions of rendering
definitive judgments having finality, which bind the parties in respect of their rights,
in the exercise of the sovereign judicial power transferred to it by the State, and
secondly such Tribunal, body or authority should be the subject to the High Court's
appellate or revisional jurisdiction.30
2.2.4. On a bare perusal of Section 22 of the NGT Act 2010 it is verily clear that the
appellate jurisdiction of NGT vests with Supreme Court, therefore NGT cannot be
considered to be subordinate to High Court. In a further observation made by the
Hon’ble Supreme Court in L Chandra Kumar v. UOI and Ors.31 it was observed that
“It is must not be forgotten that what is permissible to be supplanted by another

28
Union of India v. Madras Bar Association AIR 2015 SC 1571.
29
Ibid
30
State of Gujarat and Anr. v. Gujarat Revenue Tribunal Bar Association and Anr., AIR 2013 SC 107.
31
Supra Footnote 21

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 7

equally effective and efficacious mechanism is the High Courts and not the judicial
review itself.”
2.2.5. Therefore it can be seen that what the NGT has supplanted is the judicial mechanism
exclusively made for matters relating to environment. Hence it is concluded that NGT
is at par with High Court and not subordinate to it but limited to Environment matters.

2.3.THAT NGT CAN EXERCISE SUO-MOTU POWERS IN THE INTEREST OF JUSTICE.

2.3.1. In the above mentioned arguments as it has been highlighted that the NGT is on equal
footing with that of High Court it is therefore justified on the part of NGT to take suo-
motu cognizance of the matters pertaining to environment as also taken by various
High Courts in India on other matters viz. the High Court of Rajasthan took suo-motu
cognizance in the case Suo-motu v. State of Rajasthan32 and suo-motu cognizance
taken by Karnataka High Court in Suo-motu v. The state of Karnataka Rep. by the
Chief Secretary and Ors.33
2.3.2. It is further submitted that for meeting the objectives of effective and expeditious
disposal of cases relating to environmental protection and conservation of forests and
other natural resources including enforcement of any legal right relating to
environment and giving relief and compensation for damages to persons and property
and for matters connected therewith or incidental thereto34, NGT is justified in taking
suo motu cognizance the right to live with human dignity encompasses within its
ambit the protection and preservation of environment and ecological balance free
from pollution of air and water.35
2.3.3. In the light of facts and principles discussed above it is submitted before the court that
the NGT has suo motu powers and was justified in exercising the same in the present
case.

32
Suo-motu v. State of Rajasthan, 2007 (1) ILR (Raj) 758.
33
Suo-motu v. The State of Karnataka Rep. by the Chief Secretary and Ors. W.P. No. 14029/2008.
34
Preamble, NGT Act, 2010.
35
N.D. Jayal and Anr. v. Union of India (UOI) and Ors. (2004) 9 SCC 362.

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 8

3. WHETHER THERE WAS A CRIMINAL VIOLATION OF MINING LICENSE AND

WHETHER IT CAUSED THE ENVIRONMENTAL DEGRADATION?

3.1.THAT THE ACT OF MARVOLO MINING COMPANY IS PUNISHABLE UNDER MMDR ACT
1957.

3.1.1. It is most respectfully submitted that the terms of the mining license specifically
stipulated that the mining license was granted to Marvolo Mining Company in respect
of mines A,B and C stating further that the area was limited to 100 ft.36
3.1.2. It is further submitted as has been alleged and identified by the SEIAA that the
mining was done in contravention of the stipulated terms whereby Marvolo mined
mine D and more than 100 ft. in respect to other mines was mined.37
3.1.3. It is submitted that the Section 21(1) and Section 21(2) of the MMDR Act 1957
provides for the punishment in terms of violation of the terms of the mining license.
The said provision calls for imprisonment up to 5 years or fine or both.
3.1.4. Section 438 of the MMDR Act states “that No person shall undertake any
reconnaissance, prospecting or mining operations in any area, except under and in
accordance with the terms and conditions of a reconnaissance permit or of a
prospecting licence or, as the case may be, of a mining lease, granted under this Act
and the rules made thereunder”
3.1.5. It is further submitted that the mining operation of the Marvolo Mining Company was
not in accordance with the terms stipulated under the mining license as highlighted
under the issue mentioned above.

3.2.THAT THE ACT OF THE MARVOLO MINING COMPANY ATTRACTS PENAL PROVISIONS.

36
Page 5, Para 6, Moot Proposition.
37
Page 6, Para 9, Moot Proposition.
38
Section 4 Prospecting or mining operations to be under licence or lease.

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 9

3.2.1. It is submitted that the act of the Marvolo Company in addition to the violation of the
mining license is an offence under Indian Penal Code39.
3.2.2. It is further submitted that Section 40540 of the IPC talks about “Criminal Breach of
Trust.” It states that when a person who is entrusted in any manner with property or
with dominion over it, dishonestly misappropriates it, or converts it to his own use,
or-dishonestly uses it or disposes it of in violation of any direction of law
prescribing the mode in which the trust is to be discharged,
or of any lawful contract, express or implied, made by him touching such
discharge, or wilfully suffers any other person so to do.41
3.2.3. It is respectfully submitted that for the criminal act u/s 405 of IPC two elements are
necessary viz. creation of an obligation in relation to the property over which
dominion or control is acquired by the accused and the misappropriation or dealing
with the property dishonestly and contrary to the terms of the obligation created.42
3.2.4. This penal provision stipulates the creation of a relationship whereby the owner of
property makes it over to another person to be retained by him until a certain
contingency arises or to be disposed of by him on the happening of a certain event. 43
3.2.5. It is most respectfully submitted that in the instant case the alleged act of the Marvolo
satisfies the essential element of the Section 405 of IPC. There was in the first place
entrustment by the govt. to the Marvolo in relation to the mining blocks A and B on
the other hand the Marvolo Company used these mines contrary to the conditions
stipulated in the mining license and therefore is liable for Criminal Breach of Trust
3.2.6. It is further submitted that the act of Marvolo Company falls within the definition of
theft as contained under Section 37844 of the MTPC which states Whoever, intending
to lake dishonestly any moveable property out of the possession of any person without
that person's consent, moves that property in order to such taking, is said to commit
theft.

39
Hereinafter referred to as IPC.
40
Section 405-Criminal Breach of Trust (IPC).
41
Sushil Kumar Gupta v Joy Shanker Bhattacharjee, AIR 1971 SC 1543.
42
Onkar Nath Mishra and Ors. v. State (NCT of Delhi), (2008) 2 SCC 561.
43
Indian Oil Corpn. v. NEPC India Ltd. and Ors., (2006) 6 SCC 736.
44
Section 378- Theft (IPC).

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 10

3.2.7. It is submitted that Marvolo Mining Company mined in the mine D contrary to the
provisions of the mining license. Moreover it has been held in Malhu Yadav and Ors.
v. State of Bihar45 that a thing attached to the earth as soon as it is severed from the
earth will sufficiently constitute the ingredient necessary to make the act fall under
the said provision.
3.2.8. It is submitted that the iron ore mine is a mineral attached to the earth and therefore as
soon as it is detached from the earth it will constitute theft. It is therefore contended
that the act of Marvolo constitutes theft and criminal breach of trust.

3.3.THE PENAL PROVISIONS CAN BE IMPUTED ALONG WITH THE PROVISIONS OF THE

MMDR ACT.

3.3.1. It is submitted that Sec 21 itself is a penal provision because it defines an offence and
prescribes its corresponding fine, penalty or punishment. It is contended that the
Section 378 and Section 405 of the IPC can be invoked simultaneously as the act of
Marvolo Mining Company falls under these sections too.
3.3.2. It is submitted that to operate as a bar the second prosecution and the consequential
punishment thereunder must be for "the same offence". The crucial requirement,
therefore for attracting the Section is that the offences are the same, i.e., they should
be identical. If, however, the two offences are distinct, then notwithstanding that the
allegations of facts in the two complaints might be substantially similar, the benefit of
the ban cannot be invoked.46
3.3.3. It is submitted that the offences under the two statues is not similar. One is violation
of mining license governed by Indian Contracts Act and the other is Theft and
Criminal Breach of Trust governed by IPC.
3.3.4. A cursory comparison of these two provisions with Section 378 of IPC would go to
show that the ingredients are totally different. The contravention of the terms and
conditions of mining lease, etc. constitutes an offence punishable under Section 21 of

45
Malhu Yadav and Ors. v. State of Bihar, AIR 2002 SC 2137.
46
State of Bombay v. S.L. Apte, AIR 1961 SC 578.

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 11

the Mines and Minerals Act, whereas dishonestly taking any movable property out of
the possession of a person without his consent constitutes theft.47
3.3.5. In other words, the prohibition contained in Section 22 of the Act against prosecution
of a person except on a complaint made by the officer is attracted only when such
person sought to be prosecuted for contravention of Section 4 of the Act and not for
any act or omission which constitute an offence under Indian Penal Code.
3.3.6. It is submitted that in the light of aforesaid discussions and judgments act of Marvolo
falls under IPC and therefore relevant punishment under the IPC can be imputed on
them.

3.4.THAT THE ACT OF MARVOLO MINING COMPANY CAUSED ENVIRONMENTAL

DEGRADATION.

3.4.1. It is submitted that the mining operation carried out in the Burrow was open-cast
mining48 commonly known as open-pit mining. In this context a report by Ministry of
Environment and Forest titled “Air Pollution due to Opencast Coal Mining and It's
Control in Indian Context”49 is substantial which states that for open-cast mining
purposes “..a massive overburden will have to be removed to reach the mineral
deposits. This may require excavators, transporters, loaders, conveyer belts, etc.,
which will results in massive discharge of fine particulate from the overburden
materials. Similarly normal operations will also require excavation, transportation,
loading, unloading, size reduction, stock piling etc4. All of these will generate
particulate matter '·
3.4.2. It is respectfully submitted that mining activity is in itself uncongenial to environment
and ecology50. Further it is submitted that mining operations are detrimental to forest

47
Pratap Singh v. Shri Krishna Gupta, AIR 1956 SC 140.
48
Page 4, Corrections and Clarifications.
49
Environmental Impact Assessment Guidance Manual. http://environmentclearance.nic.in/writereaddata/Form-
1A/HomeLinks/miningofminerals_10may.pdf. (Last accessed on 21 October 2015).
50
Rural Litigation and Entitlement Kendra v. State of U. P, AIR 1988 SC 2187.

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 12

growth and that limestone quarries and excavation in the area adversely affects water
springs and environmental ecology.51
3.4.3. This would be further strengthened from the facts mention on Page 6, Para 9 which
mentions the SEIAA Report stating that “mining in the area critically affects the
environment”.
3.4.4. It is further submitted that from a bare reading of the facts it is clear that the
environment was critically affected which necessarily implies that there was Air
Pollution in terms of fine particles that are discharged from mining, Noise Pollution
because of operation of machinery and water pollution because mining operation
necessarily affects water table52.

51
Rural Litigation and Entitlement Kendra, Dehradun and Ors. v. State of U.P. and Ors., AIR 1985 SC 652.
52
Ibid.

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 13

4. WHETHER THE MINING IN THE AREA IS AGAINST ENVIRONMENTAL

SAFETY AND VIOLATES THE RIGHTS OF THE TRIBAL PEOPLE?

4.1.THAT THE GOVERNMENT IS DUTY BOUND TO PROTECT THE ENVIRONMENT.

4.1.1. It is humbly submitted that under Article 48A53of the Constitution states that it is the
duty of the Government “to endeavour to protect and improve the environment”. This
duty has been recognized by the Supreme Court interpreted to be read along with the
Right to Life under Article 21 as exemplified in case of M.C. Mehta v. Union of
India54. Further the doctrine of public trust is part of Indian law and finds application
in the present case as well. It is thus the duty of the Government to provide complete
protection to the natural resources as a trustee of the people at large.55
4.1.2. It is reverentially submitted that this Hon’ble Court recognized in M.C. Mehta56 that
mining operations are hazardous in nature, impairs the ecology and people's right of
natural resources and require utmost good faith and honesty on the part of the
intending entrepreneur.57 Thus, the endeavour of undertaking mining operations is to
be governed not only by the principles of environmental protection in the Constitution
but also with the added burden of utmost good faith.
4.1.3. This is also evident from the duty imposed on the Government under Section
18(1)58of the Mines and Minerals (Regulation and Development) Act, 195759, which
makes it clear that the Government is duty bound to protect the environment while the
mining operations are under way.

53
Article 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.
54
M.C. Mehta v. Union of India, (1998) 9 SCC 589.
55
M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388.
56
Supra Footnote 54.
57
Ibid.
58
Section 18(1) It shall be the duty of the Central Government to take all such steps as may be necessary for the
conservation and systematic development of minerals in India and for the protection of environment by preventing
or controlling any pollution which may be caused by prospecting or mining operations…
59
Hereinafter referred to as the MMDR Act.

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 14

4.1.4. It is submitted that in the instant matter according the New Mining Deal 2015 the
licenses were given for mines that were open pit mines requiring digging into the
Earth for extraction of iron ore, which is inherently dangerous for the Environment.
Consequently, it is essential that such projects be undertaken only after making
complete investigations that satisfactorily conclude that there will be an overall
positive impact of the project as has been mandated by the Notification of 2006.60
4.1.5. It is further submitted that it is clear that the New Mining Deal has led to grave
environmental repercussions and has resulted in serious environmental hazards. The
newspaper report indicates that there has been a great damage caused to environment
and wildlife.61 Submitting further the report of SEIAA indicates that the mining
license in the first place must not have been granted because they critically affect the
environment.62

4.2.THE SAID ENVIRONMENTAL IMPACT ASSESSMENT IS TOTALLY VIOLATIVE OF THE

PRESCRIBED PROCEDURE.

4.2.1. It is submitted that, in the instant case, the project proponent has not obtained the
requisite environmental clearances from the PCB, and the same shall be proved
through an objective interpretation of facts.
4.2.2. As per the 2006 notification63, once the requisite above mentioned documents have
been submitted, the State Pollution Control Board as provided in the Air Act and
Water Act is four months after receipt of the application in which to vet, evaluate and
convey their decision on the proposal.
4.2.3. It must be noted that the Marvolo Miners Inc. commenced mining operations on 1st
June, which is merely 20 days after the New Mining Deal was notified. Considering
the maximum prescribed and allotted period for completing the evaluation is 4

60
Ministry of Environment and Forests, Notification dated 14 th September 2006.
61
Page 6, Para 7 of Moot Proposition.
62
Page 6, Para 9 of Moot Proposition.
63
Supra Footnote 60

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 15

months, it is highly unlikely that SPCB would have been able to complete this
evaluation process in a fraction of that time.
4.2.4. Thus, since the mining operations were clearly started before obtaining the requisite
environmental clearance, the Government is in violation of the Environmental
Protection Act, and the 2006 Notification64 thereunder.
4.2.5. Water pollution and air pollution clearances, wherever required can duly be obtained
from the State Pollution Control Board only, which has not been done in this case.
4.2.6. It is submitted humbly before the Hon’ble Court that the apparent Environmental
Impact Assessment (EIA) carried out by the Government, is itself inadequate. In
order to appreciate this assertion, it must be noted that the EIA, if undertaken by the
Ministry of Environment and Forests appears to have been completed in a period of
twenty days starting on 10th May 2015, which was the date of notification of New
Mining Deal 201565.
4.2.7. It is further submitted as per the Guidelines released by the Ministry of Environment
and Forests66 to be adhered to according the 2006 Notification, an EIA report can be
of two types, Comprehensive and Rapid67. Even a Rapid EIA requires data from any
one season of the year, not including the monsoon season, to be incorporated. The
monsoon season in the geographically comparable South Asian country of India,
extends from June to September according to the Indian Meteorological
Department.68
4.2.8. It is thus clear that the Rapid EIA, even if conducted was not in conformity with law.
This argument is further strengthened by the fact that it has been held in Indian
Council for Enviro Legal Action and Anr. v. Union of India (UOI) and Ors.69“The
novel technique is adopted in granting conditional environmental clearances on the
basis of preliminary reports, rapid environment impact assessments and cursory site
inspections and absence of any follow up action and transparency in the decision-

64
Supra Footnote 60
65
Page 3 of the Corrections and Clarifications.
66
Available at http://www.moef.nic.in/divisions/iass/eia/Cover.htm, (Last viewed on 21 Oct, 2015).
67
Available at http://envfor.nic.in/divisions/iass/eia/Chapter1.htm, (Last viewed on 21 Oct, 2015).
68
Available file://localhost/at http/::www.imd.gov.in:section:nhac:dynamic:monsoon_report_2014.pdf (Last viewed
on 21 Oct, 2015).
69
Indian Council for Enviro Legal Action and Anr. v. Union of India (UOI) and Ors., ILR 1997 KAR 2956.

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 16

making. It is submitted that the environmental clearance given by the Governmental

authorities without comprehensive environment impact assessments, is illegal.”

4.3.THAT THE MANDATORY PUBLIC HEARING WAS NOT CONDUCTED.

4.3.1. It is most respectfully submitted that the said project lies within Category A of the
Schedule as specified under Notification of Ministry of Environment and Forest.70
4.3.2. The mentioned notification states that all the Category A and Category B1 projects
requires mandatory public hearing. The 2006 Notification mandates that he public
hearing must be conducted by the concerned State Pollution Control Board.71
4.3.3. It is further submitted that the concerned state pollution control board was not
consulted72, therefore the question of public hearing doesn’t arise
4.3.4. It is most respectfully submitted that on the bare perusal of arguments advanced
above, it can be ascertained that the New Mining Deal has violated all prescribed
norms and standard procedure for granting Mining Lease.

4.4.THE PRINCIPLE OF SUSTAINABLE DEVELOPMENT HAS BEEN VIOLATED.

4.4.1. It is submitted that sustainable development means the type or extent of development
that can take place and which can be sustained by nature/ecology with or without
mitigation.73 It is the duty of the State under our Constitution to devise and implement
a coherent and co-ordinated programme to meet its obligation
of Sustainable Development based on inter-generational equity.74
4.4.2. Moreover the awareness that deforestation and ecological imbalances as a result of
deforestation have become social menaces and the same should be prevented.75 The

70
http://envfor.nic.in/legis/eia/so1533.pdf (Last viewed on 21 Oct, 2015).
71
http://envfor.nic.in/legis/eia/so1533.pdf (Last viewed on 21 Oct, 2015).
72
Page 5, Para 4 of Moot Proposition.
73
Narmada Bachao Andolan v. Union of India and Ors., (2002) 10 SCC 408.
74
A.P. Pollution Control Board v. Prof. M.V. Nayud, [1999] 1 SCR 235.
75
Ambica Quarry Works v. State of Gujarat and Ors., [1987] 1 SCR 562.

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 17

Apex Court in N.D. Jayal and Anr. v. Union of India (UOI) and Ors.76 that
sustainable development is one of the means to achieve the object and purpose of the
Act as well as the protection of 'life' under Article 21.
4.4.3. It is submitted that the principle of Sustainable Development have been violated in
the current instance as the govt. has allocated mines in the reserved forest with a wide
range of flora and fauna.

4.5.THE PRECAUTIONARY PRINCIPLE HAS BEEN VIOLATED.

4.5.1. It is submitted that 'precautionary principle' and the corresponding burden of proof
on the person who wants to change the status quo will ordinarily apply in a case of
polluting or other project or industry where the extent of damage likely to be inflicted
is not known.77 Precautionary principle is declared as inseparable ingredients of our
environmental jurisprudence.78
4.5.2. Safeguards are required to be undertaken on the 'precautionary principle' as contained
in 'the RIO Declaration on Environment and Development' taken in the United
'Nation conference held in January 1992 to which India is a party.
4.5.3. In M.C. Mehta v. Union of India (Trapezium matter)79 this Court has applied
'Polluter pays principle' and 'Precautionary principle' of International law as law of
the land of this country, India being party to the United Nation Conference and
signatory to International Declarations and Agreements.
4.5.4. It is submitted that the government was totally unjustified in allocating these mines in
the reserved forest without taking preventive measures and keeping in mind the
sensitivity of the area.

4.6.THE RIGHTS OF THE TRIBAL PEOPLE HAVE BEEN VIOLATED.

76
N.D. Jayal and Anr. v. Union of India (UOI) and Ors., (2004)9SCC362.
77
A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and Ors. , [1999]1SCR235.
78
Vellore Citizens Welfare Forum v. Union of India., AIR 1996 SC 2715.
79
M.C. Mehta v. Union of India (Trapezium matter), AIR 1997 SC 734.

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 18

4.6.1. Article 21 of the Constitution envisages a right to life and personal liberty of a
person. The word “Life” under Article 21 means a quality of life 80 , which includes
right of food, and reasonable accommodation to live in81 and the right to a
wholesome environment.82 Also ICCPR83, UDHR84 and ICESCR85 recognizes right
to life and adequate standard of living.

4.6.2. Further in order to establish violation of Article 21, the act should be subjected to
the equality test of Article 14 and test of reasonableness under Article 19. 86 Article
14 strikes at arbitrariness because it negates equality87 and permeates the entire
fabric of Rule of Law88.

4.6.3. Therefore, every action of the State must be guided by reason for public good and
not by whim, caprice, and abuse of power.89 Article 19 provides that a restriction can
be characterized to be reasonable if it strikes a balance between the fundamental
right and restriction imposed thereon.90

4.6.4. In this case there is a violation of Article 21 of the tribal people and there is
arbitrariness on the part of the government

4.7.THE SOURCE OF LIVELIHOOD OF THE TRIBAL PEOPLE HAS BEEN TAKEN AWAY.

4.7.1. It is submitted that the source of livelihood for forest dwelling people 91 for
generations have been forests and forest lands92 and so are considered inseparable.93

80
Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844.
81
Shantisar Builders v. Narayanan Khimalal Totamen, AIR 1990 SC 630.
82
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.
83
Article 6, ICCPR.
84
Article 3, UDHR.
85
Article 11, ICESCR.
86
Maneka Gandhi v. Union of India. AIR 1978 SC 597.
87
Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021.
88
Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
89
Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; Dolly Chandra v. Chairman Jee, (2005) 9
SCC 779.
90
Om Kumar v. Union of India, AIR 2000 SC 3689.
91
Section 2 (o), The Scheduled Tribes and other Traditional Forest Dweller Act, 2006.
92
Section 2(c), The Scheduled Tribes and other Traditional Forest Dweller Act, 2006.

~SUBMISSION ON BEHALF OF RESPONDENT~

-ARGUMENTS ADVANCED- 19

However, with the advent of civilization they were exploited by outsiders94, thus,
there was a necessity to protect the inherent rights of indigenous people to empower
them to utilize and to exercise control over forest for sustainable development.95

4.7.2. Therefore, to protect forest land from deforestation and to encourage forestation96,
State is casted upon a duty to save the fast diminishing forest cover of the
country97under the principle of Public Trust Doctrine, Panchayats (Extension to the
Scheduled Areas) Act 1996 (PESA)98 and Articles 48A of the Constitution to
preserve the Forests which are considered to be a national wealth under
Environment Protection Act, 1986.99

4.7.3. The Rio Submit, 1992, The Indigenous and Tribal Populations Convention,
1957100and United Nation Declaration on Indigenous people also recognize the
rights of indigenous people over the land.101 The international conventions are
considered important to be read with fundamental rights as they further, enlarge the
scope of the same.102 This depicts the special relationship between the indigenous
people and the forests and their sustenance which solely arises from these forests.
4.7.4. It is submitted that on the basis of abovementioned judgments and discussions that
mining in the area was against environmental safety and violates the rights of tribal
people.

93
K. Guruprasad Rao v. State of Karnataka and others, 2013 Indlaw SC 628.
94
M P Jain, The Constitution of India, First Report of the Commissioner For Scheduled Castes and Scheduled
Tribes, 3, 11(1952); Samatha v. State of Andhra Pradesh & Ors., AIR 1997 SC 3297.
95
Ashok Kumar Tripathi v. Union of India and others, 2000(1) JLJ 208.
96
Rural Litigation and Entitlement Kendra v. State of U.P, 1989 Supp (1) SCC 504.
97
A.P. State Fishermen Development and Welfare Association v. District Collector and Ors, 2010 (2) ALD 300.
98
Section 4(d) & (m) of PESA.
99
Subhash Kumar v. State of Bihar,(1991) 1 SCC 598.
100
Article 11, ILO Convention, 1957.
101
State Of Kerala And Another v. Peoples Union For Civil Liberties, Kerala State Unit And Others, Civil Appeal
Nos. 104-105 Of 2001.
102
Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest Writ Petition (Civil) No. 180 OF 2011,
Vishaka v. State of Rajasthan, (1997) 6 SCC 241 at 249, People's Union for Democratic Rights v. Union of India,
AIR 1982 SC.

~SUBMISSION ON BEHALF OF RESPONDENT~

-PRAYER- PAGE XVI OF XVI

PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED, REASONS GIVEN AND

AUTHORITIES CITED, THIS COURT MAY BE PLEASED TO:

1. Declare that the Special Leave Petition filed before this Apex Court is not maintainable.
2. Hold that the suo motu injunction granted by the National Green Tribunal is valid.
3. Hold that there has been criminal violation of mining license and provisions of the Indian
Penal Code shall apply.
4. Hold that the Republic of Minas Tirith and Marvolo Mining Corporation is liable for
environmental degradation.
5. Hold that the Republic of Minas Tirith liable for violation of fundamental rights of the tribal
people

AND ANY OTHER RELIEF THAT THIS COURT MAY BE PLEASED TO GRANT IN THE INTERESTS OF

JUSTICE, EQUITY AND GOOD CONSCIENCE.

COUNSELS FOR THE RESPONDENTS

~SUBMISSION ON BEHALF OF RESPONDENT~