BEFORE

THE HON’BLE SUPREME COURT OF INDIA, AT NEW DELHI

UNDER
ARTICLE 136 OF THE CONSTITUTION OF INDIA
SPECIAL LEAVE PETITION (CIVIL) ____/2018
:IN THE MATTER OF:

DEEN DAYAL SHARMA.

APPELLANTS

VERSUS

UNION OF INDIA
RESPONDENT

WRITTEN AND FILED BY THE COUNSEL FOR THE RESPONDENT

MEMORANDUM ON BEHALF OF THE RESPONDENT: UNION OF INDIA

COUNSEL

INDEX OF AUTHORITIES

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 STATUTES AND OTHER AUTHORITIES
 Constitution of India Act, 1949.
CASES

 Bihar Legal Support Society v. Chief of Justice of India and Anr., (1986) 4 SCC 767
 Bombay v. F. N. Balsara, AIR 1951 SC 318 : 1951 SCR 682
 Bombay Hawkers' Union And Ors v. Bombay Municipal Corporation, AIR 1985 SC 1206 :
1985 (3) SCC 528
 Dhakeswari Cotton Mills Ltd. v CIT West Bengal, (1955) AIR 65 (SC)
 Divisional Forest Officer v. Bishwanath Tea Co. Ltd. AIR 1981 SC 1368 : (1981) 3 SCC
238,
 Indo-China Steam Navigation Co. v Jasjit Singh, AIR 1964 SC 1140 : (1964) 6 SCR 594
 Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, AIR 2004 SC 1815
 Municipal Corporation of City of Ahemdabad v. Jan Mohammed Usmanbhai, (1986) 2 SCC
516
 Power Measurement Ltd. v. U.P. Power Corporation Ltd., 2003 (2) AWC 1642 b
 Pritam Singh v. The State, AIR 1950 SC 169 : 1950 SCR 453
 Sakhawat Ali v. The State of Orissa, AIR 1955 SC 166 : (1955) 1 SCR 1004
 Sanaboina Satyamarayana v. Govt. of Andhra Pradesh, (2003) 10 SCC 78 : AIR 2003 SC
3074
 Shashikant laxman Kale and Anr v. Union of India and Anr, (1990) 4 SCC 366
 Shri Ram Krishna Dalmia vs Shri Justice S. R. Tendolkar, AIR 1958 SC 538 : 1959 SCR 279
 State Trading Corporation v. Commercial Tax Officer, AIR 1963 SC 1811 : (1964) 4 SCR 99
BOOKS
 Jain M. P., Indian Constitutional Law, (6th edition, 2010, Reprint) Lexis Nexis Butterworths
Wadhwa, Volume 1.
ONLINE RESOURCES

 www.manupatra.com

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 www.westlaw.com
 www.lexisnexis.com

LIST OF ABBREVIATION

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  Hon’ble Honorable
 v. Versus
 AIR All India Reporter
 SC Supreme Court
 SCC Supreme Court Cases
 SCR Supreme Court Reports
 AWC Allahabad Weekly Cases
 Co. Corporation
 Ltd. Limited
 Ors. Others
 U. P. Uttar Pradesh
 Govt. Government
 Art. Article
 Anr. Another

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 STATEMENT OF JURISDICTION

THE RESPONDENT HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE SUPREME COURT OF
INDIA, THE MEMORANDUM FOR THE RESPONDENT IN AN APPEAL FILED BY APPELLANT
UNDER ARTICLE 1361 OF THE CONSTITUTION OF INDIA, 1950.

STATEMENT OF FACTS
1
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.

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 1. Government started to cut down all the trees of both sides of the road at NH-33 at the
way of Ranchi to Jamshedpur for the purpose of expansion of road
2. One primary teacher of Ranchi town, Deen Dayal Sharma realized the ecological
degradation and he conducted one survey with the help of Botanical Department of BIT
Mesra which has shown that 53 villages on the both sides of the NH-33 have become
polluted with huge density Carbon dioxide causing from vehicular smoke emission and
least number of trees
3. Sharmaji raised the complain to Municipality of both Ranchi and Jamshedpur but both of
them replied that all these projects are being conducted by central government and
National Highways Authorities of India under the part of road development project.
4. Sharmaji initiated legal proceedings under section 133 of Cr.P.C. 1973 against NHAI and
Municipalities before a Magistrate of Ranchi but Magistrate dismiss the case on the
ground that taking cognizance on an offence under the Air Act, 1981 previous sanction of
Pollution Control Board is needed.
5. In the revision High Court held that special statutes have to prevail over section 133 of
Cr.P.C. and Magistrate has no jurisdiction under 133 for the said purpose.
6. Sharmaji went to local police station for FIR under Jharkhand Private Trees Protection
Act, 2005 but the same was rejected as trees both sides of road are not private trees.
7. Finally Sharmaji went to the Chief Conservator of Forest for a complain but complaint
was not entertained as those trees are not coming under the provision of Reserved Forest
or Protected Forest under the Forest Act, 1927.
8. On 31st Jan 2016 he filed one Writ petition for violation of his fundamental rights towards
environment before the High Court but court did not find any merit of the case.
9. Now Sharma filed an appeal before the Supreme Court of India.
10. Hence, the present Special leave Petition.

ISSUES RAISED

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ISSUE 1: WHETHER THE PRESENT SPECIAL LEAVE PETITION IS MAINTAINABLE?
ISSUE 2: WHETHER ANY OF THE FUNDAMENTAL RIGHT WHICH IS GUARANTEED UNDER THE
CONSTITUTION OF INDIA HAS BEEN VIOLATED?
ISSUE 3: WHETHER GOVERNMENT IS LIABLE TO PAY COMPENSATION?

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 SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE PRESENT SPECIAL LEAVE PETITION IS MAINTAINABLE?

It is humbly submitted before this Hon’ble Supreme Court of that the special leave petition filed
by the appellant is not maintainable. Special Leave cannot be granted when substantial justice
has been done and no exceptional or special circumstances exist for the petition to be
maintainable. It is beyond the scope of judicial review to check the wisdom behind a policy and
the development projects should not be refused in the name of environment.

ISSUE 2: WHETHER ANY OF THE FUNDAMENTAL RIGHT WHICH IS GUARANTEED UNDER THE
CONSTITUTION OF INDIA HAS BEEN VIOLATED?

It is humble submitted before this Hon’ble court that in the present case, there has been no
violation of the fundamental rights since, the action taken by the State was in furtherance of the
principle of economic justice and public interest. It is submitted that ecology should not be
preserved at the cost of the development and also that the present development project was a
necessity.

ISSUE 3: WHETHER GOVERNMENT IS LIABLE TO PAY COMPENSATION?

It is submitted that the respondent is not liable to pay any compensation no fundamental right has
been violated. There should be a balance between the preservation of environment and
development.

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 ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE PRESENT SPECIAL LEAVE PETITION IS MAINTAINABLE?

It is humbly submitted that the present Special Leave Petition filed by the appellant is not
maintainable as this petition does not include any substantial question of law and no exceptional
circumstances exists. Moreover, there is no miscarriage of justice involved in the present
circumstances.

Article 136 states that 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. It is not mentioned in Article 136 of the
Constitution as to in what kind of cases the said discretion should be exercised. In the present
case, there has been no violation of the fundamental rights since, the action taken by the State
was in furtherance of the principle of economic and social justice and thus cannot be termed as
arbitrary or as one which was without the application of the mind.

An aggrieved party from the judgment or degree of high court cannot claim special leave petition
as a right but it is privilege which the Hon’ble SC is vested with and this leave can be granted by
it only. The scope of Article 136 was considered by the Supreme Court in various cases. 2 The
powers given by article 136 of the Constitution are in the nature of special or residuary powers
which are exercisable outside the purview of ordinary law.3 The power under 136 is to be
exercised sparingly and in exceptional cases only. The Court would not grant special leave
unless it is shown that exceptional and special circumstances exist. 4 It was held by this Hon’ble
that there is no uniform standard regarding excepting the special leave petition under Art.136 and
the only most generally excepted criteria is of ‘special circumstances’, which must exist in the
case. By Article 136, the S.C. has been given overriding power to grant special leave petition to

2
Bharat Bank v. Employees of Bharat Bank, A.I.R. 1950 S.C. 188.
3
Durga Shankar v. Raghu Raj, A.I.R. 1954 S.C. 520.
4
Pritam Singh v. The State , A.I.R. 1950 S.C. 169.

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appeal against orders of Courts and tribunals which go against the principles of natural justice
and lead to grave miscarriage of justice.5

In the case of Sirpur Paper Mills v. Commissioner of Wealth Tax, it was held by the Supreme
Court that Leave under Art.136 is also granted when some “special or peculiar” circumstances
exist.6 The Supreme Court as the Apex Court in the country was meant to deal with important
issues like constitutional questions, questions of law of general importance or where grave
injustice had been done. If the Supreme Court entertains all and sundry kinds of cases it will
soon be flooded with a huge amount of backlog and will not be able to deal with important
questions relating to the Constitution or the law or where grave injustice has been done, for
which it was really meant under the Constitutional Scheme. After all, the Supreme Court has
limited time at its disposal and it cannot be expected to hear every kind of dispute.

There are some ground on which special leave petition can be granted. First, where the judgment
is tainted with some serious legal infirmities, or is founded on a legal construction which is
wrong.7 Second, petition for leave can be granted where approach of the court whose judgment is
under appeal is wrong in law.8

In the present case, there is neither any special and extraordinary situations nor any substantial
question of law. The project of expansion of road was for development purpose.It is submitted
that no development is possible without some adverse effect on the ecology and environment 9. A
proper balance must be struck between the protection of environment and the development
process.10 The task of striking the aforesaid delicate balance between maintain environment and
solving other problems is for the government. 11 Such a delicate balance is a matter of policy and
must be lightly interfered with. Further, it has been reiterated multiple times by this Hon’ble
court that it is beyond the scope of judicial review to examine the wisdom behind a policy. 12 The
court does not test the correctness of a policy or strike it down merely because there are

5
Justice B. P. Banerjee, WRIT REMEDIES (4th Ed. 2008).
6
Sirpur Paper Mills v. Commissioner of Wealth Tax, A.I.R. 1970 S.C. 1520.
7
Balakrishna v. Matha, (1991) 2 S.C.C. 203.
8
Munisami v. Ranganathan, (1991) 2 S.C.C. 139
9
T. N. Godavarman Thirumalpad v. Union of India, 2001 (10) SCC 606.
10
Indian Council for Enviro Legal action v. UOI and Ors., (1995) 6 SCC 281.
11
Dahanu Taluka Environment Protection Group v. Bomabay Subarban Electricity Supply Company, (1991) 2 SCC
538.
12
Natai bag v. State of West Bengal, (2000) 8 SCC 262.

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alternatives that are in the courts opinion may be fairer or wiser.13 The court may interfere only if
there is illegality or malafides.14

Moreover, the hon’ble Supreme Court in the case of Narmada Bachao Andolanv v. UOI 15,
observed that:

“for any project which is approved after due deliberation, the court should refrain from being
asked to review the decision just because a petitioner in filing a public interest litigation alleges
that such a decision should not have been taken because an opposite view against the
undertaking of the project, which may have been considered by the government is possible.
When two or more options or views are possible and after considering them the government
takes a policy decision it is then not the function of the court to go into the matter afresh and in a
way sit in appeal over such a policy decision”

If any development project is not contrary to environment and according to the directions of
appropriate authorities, then court had no objection at all. This has been held by the Supreme
Court in the case of Centre for DNA Fingerprinting and Diagnostic v. A.P. Pollution Control
Board16. The Court was of the view that “we can’t refuse the permission of development projects
blindly on the name of environment”.

Therefore, it is humbly submitted before the hon’ble Supreme Court that, after examining the
case on the touch-stone of the afore-noted legal principles, the present Special Leave Petition
filed by appellant is not maintainable.

ISSUE 2: WHETHER ANY OF THE FUNDAMENTAL RIGHT WHICH IS GUARANTEED UNDER THE
CONSTITUTION OF INDIA HAS BEEN VIOLATED?

It is humbly submitted before the Hon’ble Supreme Court that there has been no violation of any
of the Fundamental right of the appellant since, the action taken by the State was in furtherance
of the principle of economic and social justice and thus cannot be termed as arbitrary or as one
which was without the application of the mind. It is submitted before this Hon’ble court that
there is no violation of Article 21 of the Constitution.

13
Premium Granites v. State of T. N., (1994) 2 SCC 691.
14
BALCO Employess Union v. UOI, (2002) 2 SCC 333.
15
Narmada Bachao Andolanv v. UOI, 2000 (10) SCC 664.
16
Centre for DNA Fingerprinting and Diagnostic v. A.P. Pollution Control Board, (2005) 3 ALT 779.

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Under the concept of ‘Sustainable Development 17’ onerous duty lies upon the State recognized as
a fundamental right under Article 2118 to keep in mind the ‘principle of proportionality’ 19 so as to
ensure protection of environment on the one hand 20 and to undertake necessary development
measures on the other hand21, since, the economic development cannot be allowed to take place
at the cost of ecology but the necessity to preserve ecology and environment should not hamper
economic and other developments22, which includes generation of revenue and public interest.23

The Hon’ble Court in the case of T.N. Godavarman Thirumalpad (through K.M. Chinnapa)
v. Union of India and Others24, observed that:

“where the commercial enterprise would bring in results which are far more useful for the
people, difficulty of a small number of people has to be bypassed. The comparative hardships
have to be balanced and the convenience has to get primacy over comparatively lesser
hardship.”

In the case of T.M.A. Pai Foundation v. State of Karnataka, 25 the court defined “Public
Interest”. According to the Court “Public interest” means a subject matter in which the rights of
the public or a section of the public is interested or the means of concern which is advantageous
to people as a whole.26 ‘Interest of general public’ is a comprehensive expression intended to
achieve the socio- economic justice for people by the State.27

The Bombay High Court in the case BSES Limited v. Union of India 28, held that environmental
issues are relevant and deserve serious consideration. But the needs of the environment require to
be balanced with the needs of developing countries.

17
Brutland Commission Report, 1983; Principle 2 of Stockhom Conference, 1973; Principle 1 of Rio
Declarartion,1992.
18
Supra Footnote 6.
19
Thirumalpad v. Union of India and Ors. (2002) 10 SCC 606.
20
Court On Its Own Motion v. Union of India, 2012 (12) Scale 307.
21
Subhash Kumar v. State Of Bihar, AIR 1991 SC 420.
22
Banwaslseva Ashram v. State of U.P, AIR 1987 SC 374.
23
Research Foundation For Science Technology And Natural Resource Policy v. Union Of India And Others, AIR
2007 SC (Supp) 852
24
Supra Footnote 5.
25

26
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.
27
Court on its own motion v. Union of India, 2012 (12) SCALE307
28
BSES Limited v. Union of India, AIR 2001 Bom. 128 (DB).

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No development is possible without some adverse effect on the ecology and environment but the
projects of public utility cannot be abandoned and it is necessary to adjust the interest of the
people as well as the necessity to maintain the environment. The balance is to be struck between
the two interests and this existence must be left to the persons who are familiar with and
29
specialized in the field. In addition to this, there can be no dispute that the society has to
prosper, but it shall not be at the expense of environment. In the like vein, the environment shall
have to be protected, but not at the cost of the development of the society, both the development
and environment shall co-exist and go hand-in-hand. 30

The Rajasthan High Court in case of Forest Friendly Camps Pvt. Ltd. v. State of Rajasthan 31,
called for a balance between development and ecology. The traditional concept that the
development and ecology are opposed to each other is no longer acceptable. Sustainable
Development has to be accepted as a viable concept to eradicate poverty and improve the quality
of human life while living within the carrying capacity of the supporting eco-systems.
Sustainable Development as a balancing concept between the ecology and development has been
accepted as a part of the customary international law. The society has to be prosper but of course
not at the cost of environment and in the similar way the environment has to be protected but not
at the cost of development of the society. There shall have to be both- development and proper
environment and, as such, balance has to be found out and administrative action ought to proceed
in accordance with. Hence, despite the fact that trees are important for a healthy environment, the
Government not only has to consider the necessity to preserve the ecology, while allowing
deforestation, but also has to consider the importance of public projects for the betterment of the
conditions of living of the people and the revenue generated from such projects.

 That the expansion of the road is necessity:

The doctrine of public necessity is derived from the maxim salus populi suprema lex i.e. the
welfare of the people is of paramount importance.32

29
Goa Foundation and anr. v. The Konkan Railway Corporation and Others, AIR 1992 Bom. 471 (DB).
30
Citizen, Consumer and Civic Action Group v. Union of India, AIR 2002 Mad. 299.
31
Forest Friendly Camps Pvt. Ltd. v. State of Rajasthan, AIR 2002 Raj. 214
32
Rekharani Maitra & Ors. v. Additional District Magistrate & Ors. C.R. No. 9063 (W) of 1983.

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In the instant case, the expansion of road was a matter of urgent necessity and national interest,
so as to avoid accidents and to support the plying of heavy. Therefore, by expanding the road the
State was performing its duty to safeguard the well- being of the people, keeping in mind that the
needs of environment need to be balanced with the needs of community at large in a developing
country33 and hence there is no liability for any wrong committed by the Government.

A total of 163 fatal accidents have taken place in Bundu and Tamar police station area in 2010,
2011, and 2012. “The number of non-fatal accidents in both of these police stations for the same
period is 147. The accidents occur because of narrow highway and sharp curves," said Ranchi SP
(rural) A V Minz. The Ranchi Jamshedpur highway is 20 feet wide and has over 40 sharp curves
in 125km.34

In the present case, considering the susceptibility of the highway to accidents because of its
narrowness, it became imperative for the government to allow the development project,
considering it to be in the public interest and of absolute priority, so as to save the people.

Therefore, it is humbly submitted before this Hon’ble court that there is no violation of
fundamental right as the project was a necessity and also that the environment should be
protected but not at the cost of the development of the society.

 That the Report prepared by the Botanical Department of BIT Mesra is not valid.

In scientific matters of complex nature, reference has to be made to a specialized expert body to
examine the matter if all relevant considerations have been taken note of.35 The entire claim of
the petitioner is based on the survey report prepared by the Botanical department of BIT Mesra,
not supported by any substantial scientific data, to impute its validity.

If it needs to be established that the development project is the cause of pollution and that there is
huge density of Carbon dioxide in the nearby villages of NH-33, the Court may appoint an expert

33
Supra Footnote 23.
34
Ranchi-Jamshedpur highway on fast track, (February 17, 2017)
https://timesofindia.indiatimes.com/city/ranchi/Jharkhands-haunted-highway-where-prayers-dont-
work/articleshow/19572217.cms
35
A.P. Pollution Control Board v. Prof.M.V. Nayadu and Ors., 1999 1 SCR 235.

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committee, for gathering facts and data in regard to the complaint of breach of fundamental
right36

The survey by the Botanical department of Bit Mesra is not a competent authority as it is a
private organization. Since there is no sufficient scientific data or material facts to support the
same. The report of the Botanical department is a mere conjecture in this regard and hence
invalid and therefore an expert committee should be appointed for looking into the validity.37

ISSUE 3: WHETHER THE GOVERNMENT IS LIABLE TO PAY COMPENSATION?

It is humbly submitted before the Hon’ble court that even if it is considered that the govt. is
responsible for environmental degradation, it has restricted to a minimal extent and the
degradation caused was out of necessity and is completely valid as per the facts and
circumstances. The step is of importance to the public policy. Further it is submitted that, the
govt. has done nothing wrong in going ahead with the project, hence it is not obliged to pay
compensation.

It is submitted that no development is possible without some adverse effect on the ecology and
evvironment38. A proper balance must be struck between the protection of environment and the
development process.39

In the instant case it can be seen that, all the allegations of environment pollution are based on
the survey by the Botanical department of Bit Mesra which is not a competent authority hence
the report is unacceptable in the court of law. Relying on the facts of the case, it is mentioned
that survey has been conducted by a private organization.

It has been held that sometimes the ill-effects of technology have to be tolerated at the cost of
their advantages.40 It is humbly submitted that as there is no violation of fundamental right, the
respondent is not liable to pay any compensation.

36
Bandhua Mukti Morcha v. Union of India & Others, 1984 SCR (2) 67.
37
Id.
38
Supra footnote 5.
39
Supre Footnote 6.
40
Reliance Infocom Ltd. v. Chemanchary Grama Panchayat, AIR 2007 Ker 33.

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 PRAYER

Wherefore, in the light of the facts of the case, issues raised, arguments advanced and authorities
cited, this Honorable Court may graciously be pleased to adjudge and declare that:

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  the special leave petition filed by the appellant is not maintainable,

 there is no violation fundamental right as guaranteed under the Indian

Constitution,
 The respondents are not liable to pay compensation,

And pass any order in favor of the petitioner that it may deem fit in the ends of justice, equity
and good conscience.

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