MOOT COURT EXERCISE

BA.LLB (HONS)
ABISHEK SRIRAM S

17BLA1008

Course Instructor

Prof Rajasathya & Dr. Anant Krishna Raj

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 BEFORE THE HON’BLE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, DEVA NADU, HIND

ENVIRONMENTAL PROTECTION FORUM (PETITIONER)

UNION OF HIND and Ors. (RESPONDENT)

ON SUBMISSION TO THE REGISTRY OF THE TRIBUNAL

OF THE NATIONAL GREEN TRIBUNAL, SOTHERN ZONE, DEVA NADU, HIND

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 MEMORIAL FOR THE RESPONDENT

TABLE OF CONTENTS

INDEX OF AUTHORITIES............................................................................................................. 06

STATEMENT OF JURISDICTION................................................................................................. 12

STATEMENT OF ISSUES.......................................................................................................... 13

STATEMENT OF FACTS........................................................................................................... 14

SUMMARY OF ARGUMENTS................................................................................................. 15

ARGUMENTS ADVANCED...................................................................................................... 17

1. THE APPEAL FILED BY THE PETITIONER IS NOT MAINTAINABLE...........17

2. THE ENVIRONMENT CLEARANCE GRANTED BY THE STATE AUTHORITIES IS

VALID........................................................................................23

3. HYDRAULIC FRACTURE COULD POTENTIALLY MAKE HIND A SUPER POWER IN TERMS OF

ENERGY............................................................................30

PRAYER...................................................................................................................................... 36

Page 3 of 37
 INDEX OF AUTHORITIES

INDIAN CASES

1 Chanan Singh v Registrar. Co-op Societies, AIR 1976 SC 1821 16

2 Hiralal RatanLal v STO, AIR 19173 SC 1034 16
3 India House v Kishan N. Lalwani, MANU/SC/1182/2002 16
4 Puducherry Environment Protection Association v Union of India
(2016), SZ 103 16

5 Amit Maru v Ministry of Environment and Forests and

Ors(2014)GT 0128 16

6 Goa Foundation & Anr v Union of India & Ors(2014) SC 0388 17

7 Dr Aravind Gupta v Union of India & Ors(2013) 1 SCC 393 17
8 Sreeranganathan K.P., Sreepadam Vadakkkekkottaram (H) and
Others V the Union of India(2014) ALL (I) NGT REPORTER (2) (SZ) 1 17

9 M.C. Mehta v University Grants Commission Ors(2014) GT 0071 18,19

10 M/S. Sterlite Industries (India) v The Chairman Tamil
Nadu Pollution(2013) GT 0070 18

11 Vellore Citizens Welfare Forum v Union of India, AIR 1996 SC 2715 18, 31
12 Tirupur Dyeing Factory Owners Association v Noyyal River
Ayacutdars Protection Association and Ors., AIR 2010 SC 19
3645
13 Rana Sen Gupta v Union of India(2013) GT 0032. 19
14 Indian Council for Enviro Legal Action and Ors v Union of India
and Ors.(1996) SC 1112 19

15 Wilfred J. and Ors v Ministry of Environment and Forests

and Ors(2016) GT 0113 20

16 Debadityo Sinha and Ors. v UOI and Ors MANU/GT/0148/2016 21

17 MD Yogesh and Ors. v UOI and Ors. MANU/GT/0012/2017 22

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18 Rajesh Kumar v Ministry of Environment, Forest and Climate
Change and Ors. MANU/GT/0045/2016 22

19 Sant Ram Sharma v State of Rajasthan and Anr AIR 1967 SC 1910 23
20 M. Srinivasa Prasad and Ors. v The Comptroller and Auditor
General of India and Ors. (2007)10 SCC 246 23

21 S.P. Muthuraman and Ors. v Union of India and Ors.

, MANU/GT/0116/2015 23

UK CASE LAWS

Mayor etc. of Westminister v London & North Western Ry. Co [1905]

31, 32
A.C. 426

INTERNET ARTICLES/REPORTS

1 Shreya, Doctrine of Necessity, LEGAL SERVICES 23

INDIA:25.09.2017(Sep 25 2017)
http://www.legalservicesindia.com/article/article/doctrin
e-of-necessity-1113-1.html

2 U.S. Crude Oil, natural gas, and natural gas 28

liquids proved reserves, EIA(Aug. 12, 2012),
http://www.eia.gov/naturalgas/crudeoilreserves
3 EIA, Energy Perspectives: United States Energy
imports decline while energy exports increase (Dec. 17, 28
2012),http:// www.eia.gov/todayinenergy/detail.cfm?
id=9230.
4 America's Natural Gas Alliance: The economic and
employment Contributions of Shale gas in the United
States,IHS GLOBAL INSIGHT, (Dec. 2011),
http://www.energyindepth.org/wp- 28
content/uploads/2011/12/Shale-Gas-Economic-Impact-
Dec-2011_EMB1.pdf

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 JOURNAL ARTICLE

1. Saad Abdulbaqi Sabti & YP Rama Subbaiah, Administrative law:

Doctrine of necessity, doctrine of legitimate expectations and 23
doctrine of delegation, INTERNATIONAL JOURNAL OF LAW,
(May, 2017)

2. M. Shansul Haque, Environmental Discourse and Sustainable

Development: Linkages and Limitations, Ethics and the 31
Environment, Vol. 5, No. 1(2000), Pp. 3-21

3. Stephen Marks, The Human Right to Development: Between

Rhetoric and Reality, HARVARD HUMAN RIGHTS JOURNAL, 24
Vol.17

STATUTES

Constitution of India, 1950

Constitution of Hind, 1950
National Green Tribunal Act, 2010
Environmental (Protection) Act, 1986
Limitation Act, 1963

NOTIFICATIONS

EIA Notification, 2006

BOOKS

1. AMARTYA SEN, DEVELOPMENT AS FREEDOM, New York: Oxford University Press,

(1st ed. 1999).
2. 2 DR. MAHESHWARA SWAMY, LAW RELATING TO ENVIRONMENTAL POLLUTION
AND PROTECTION,(5th ed. 2009).
3. ARUN VENKAT, ENVIRONMENTAL LAW AND POLCY,(Eastern economy
ed.,PHI Learning Private Limited, 2011).
4. DR. DHARMENDRA S. SAGAR, ENVIRONMENTAL LAW, (Eastern economy
ed.,PHI Learning Private Limited, 2011).
5. DR. S. R. MYNENI, ENVIRONMETAL LAW, (Foreword by Dr. K. Vidyullatha
Reddy, Asia Law House, (New ed., 2008).
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Page 7 of 37
 STATEMENT OF JURISDICTION

The Respondent humbly submits this memorandum in response to the appeal filed before this
Honourable Tribunal. The Petitioner has invoked its jurisdiction under Section 16 of the
National Green Tribunal Act, 2010 (Herein after referred to as NGT Act, 2010). It sets forth the
facts and the laws on which the claims are based.

STATEMENT OF ISSUES

ISSUE I: Whether the appeal filed by the Petitioner under this Tribunal is maintainable?

ISSUE II:Whether the Environment Clearance Granted By The State Authorities Is Valid.

ISSUE III:Whether hydraulic fracture could potentially make hind a super power in terms of
energy.

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 STATEMENT OF FACTS

Due to alarming growth in energy consumption has resulted in global warming and climate change,
Union of Hind (third largest energy consumer in the World) are trying to mitigate the effects wherein
Paris Accor is a major initiative to which Hind is also a part thereof to mitigate the matter.
Hindgovernment is trying to substitute the usage of coal and oil with natural gas and they have initiated
various steps for exploration and exploitation of hydrocarbons, shale gas and oil at various places across
Hind, including Shrivery basin and the exploration was set to commence at Pudusevai District in the
state of Deva Nadu wherein agriculture is the main source of income and they rely on rice cultivation for
their livelihood. But meanwhile an NGO funded by a leading coal based company in Hind called
Environmental Protection Forum (“EPF”) is campaigning and working against the government initiatives
with the help of the common people. On one side districts in the state of Deva Nadu including
Puduvasevai District were facing the worst drought and the Centre approved a financial assistance of
mere Rs.2,000 /- crore for Deva Nadu. Other side they have united to protest against the hydrocarbon
and shale gas extractions.
Meanwhile Pearl Laboratories submitted their EIA (“PL EIA”) which comprised of detailed description of
the proposed project and some of the key features included in the project description while various
environmental organizations expected the PL EIA to address the lacunae created by the EGC EIA which
they failed to do so. In order to avoid the public outcry, they avoided publicizing the conduct of public
hearing by advertising it in newspapers that are not easily available. Subsequently environmental
clearance was issued on 3rd January 2017 which was made available online on 1st February 2017 due to
technical issues
Challenging the grant of environmental clearance to Pearl Laboratories, EPF filed an appeal before the
National Green Tribunal, Southern Zone under the NGT Act, 2010 contending that an environmental
clearance ought not have been issued to Pearl laboratories because hearing was not properly
conducted, water stress issues and tackling of potential environmental hazards were not adequately
addressed which will result in contravention of environmental legislations.
The government objected contending that appeal was barred by limitation and EPF being funded by a
coal company does not have locus standi since it has private interest and is not an “affected person”.
The laws of Union of Hind are pari materia with that of Republic of India.

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 ARGUMENTS ADVANCED

1. THE APPEAL FILED IS NOT MAINTAINABLE.

¶1. The appellate jurisdiction of the National Green Tribunals flows from Sec 16(h)1 of the National
Green Tribunal Act (herein after refer as NGT Act, 2010), which aims to provide for the establishment of
a National Green Tribunal for the 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 thereto.2 It is submitted that the appeal is not
maintainable on primarily four grounds: [1.1] that the Petitioner has no locus standi to approach the
NGT due to [1.1.1] That the Petitioner has exceeded the Limitation Period to make an appeal under Sec.
16 of the NGT Act, 2010 and [1.1.2] That the Appeal is not Brought up by an Aggrieved person due to
the Cause of Action; [1.2] That the matter does not involve any substantial question of law relating to
environment; [1.3] That the Respondent has adhered to doctrines of Sustainable Development,
Precautionary Principle and Polluter Pays Principle and; [1.4] That there is no violation on the principle
of natural justice.
[1.1]The Petitioner has no locus standi to approach the NGT.
¶2. The present appeal is made merely on pure apprehension. Ordinarily, a Court confines itself to the
facts at hand and does not delve into assumptions. 3The states and the various NGOs merely have an
apprehension of environmental damage, which is unfounded since the EIA has promised otherwise.
Since the courts do not have judicial review over the work of the expert committee, when the EIA is
claiming that the consequence of implementing the impugned act will have no drastic environmental
damages that will irreversibly damage the environment, the court should adhere to their decision. It has
no locus standi because of two reasons that is; the petitioner is not an aggrieved person due to the

1
“An order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental
clearance in the area in which any industries, operations or processes or class of industries, operations and
processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment
(Protection) Act, 1986”.
2
National Green Tribunal Act, 2010 (India).
3
See Chanan Singh v Registrar. Co-op Societies, AIR 1976 SC 1821(India).

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cause of action arose and has exceeded the period of limitation to make an appeal. Thus it is humbly
submitted that the case is not maintainable.
[1.1.1] The Petitioner has exceeded the limitation period to make the appeal under Sec.16 of NGT Act,
2010.
¶3. It is humbly submitted before this Hon’ble Court that when different periods of limitation are
prescribed under Sections 14, 15 and 16 of the NGT Act, jurisdiction based on limitation is a relevant fact
to be considered.4 It is clear that the Tribunal loses jurisdiction to condone the delay if the delay is of
more than 90 days. Every appeal has to be filed within 30 days from the date of communication of the
order. To put it simply, once the period of 90 days lapses from the date of communication of the order,
the Tribunal has no jurisdiction to condone the delay. As stated in the case Hiralal RatanLal v STO5 and
India House v Kishan N. Lalwani6 the period of limitation statutorily prescribed, has to be strictly adhered
to and cannot be relaxed and or departed from, on equitable consideration. The Hon'ble Bombay High
Court and Hon'ble Supreme Court interpreted the special enactments like the Arbitration Act, 1998, the
Electricity Act, 2003 and held that where a statute prescribes shorter period of limitation and different
scheme of limitation is provided under such a Statute, the provisions of the Limitation Act, 1963, are
excluded and the Tribunal must apply the period of limitation as prescribed under the special enactment
while exercising its powers. So, when the special provision is set out under Section 14(3) of the NGT Act,
then time cannot be extended any more by Application of Section 5 of the Limitation Act, 1963, or any
such analogues provision.7 Thus it is humbly submitted that the case has no locus standi as the case is
barred by period of limitation.
[1.1.2] The appeal is not brought up by an aggrieved person of cause of action.
¶4. It is humbly submitted that this case is not maintainable as the appeal is not brought up by an
aggrieved person of the cause of action. Section 16 of the NGT Act gives a right to any person to prefer
an appeal where a person has to be an ‘Aggrieved Person’ who has suffered a legal injury, i.e., to say
that he has been wrongly deprived of something. The Applicant is not affected by any of the acts of the
Respondent, while carrying out the construction activities on the said property and hence, he is not a
person aggrieved within the meaning of Section 18 of the said Act and hence has no locus to file the
same.8

4
See Puducherry Environment Protection Association v Union of India (2016), SZ 103.
5
AIR 19173 SC 1034.
6
MANU/SC/1182/2002.
7
See Amit Maru v Ministry of Environment and Forests and Ors (2014) GT 0128(India).
8
Id.

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 ¶5. Aggrieved is a person who has suffered a legal grievance, against whom a decision has been
pronounced or who has been refused something. This expression is very generic in its meaning and has
to be construed with reference to the provisions of a statute and facts of a given case. 9 Only barrier is
that his action shall not be baseless, ill-motivated or that outcome of vendetta nor shall he be a person
disinterested in such cause of environment but wants to take garb thereof for extraneous reasons. They
have a vested interest to file because of the fund received from the coal company and so as EPF is not
an aggrieved person to come up to this Tribunal.It is submitted that there are no legal injuries to the
person who filed the suit to be treated as an “aggrieved person” and also we can see that his intention
was not of a bonafide nature due to its acquaintance with a coal based company which was not
favourable for the respondents. In such case the Application may be dismissed and the Tribunal will
have to be on guard.
The matter does not involve substantial question of law relating to environment.

¶6. It is contended that the present application is beyond the scope and purview of Section 14 and
Schedule I of the NGT Act.10 Section 14 of the NGT Act states: “1. The Tribunal shall have the jurisdiction
over all civil cases where a substantial question relating to environment (including enforcement of any
legal right relating to environment), is involved and such question arises out of the implementation of the
enactments specified in Schedule I.”
¶7. Thus it gives jurisdiction to the Tribunal over all civil cases, where a substantial question relating to
the environment, more importantly, including enforcement of any legal right relating to environment is
involved. As far as Environment Clearance is concerned, Environmental Clearance document is certainly
not an official note conveying the decision of the authorities to the Project proponent. It is a document
which reflects the intent and policy of governance vis-a-vis the economic development and natural
resources management of the country. Even a cursory scrutiny of the impugned EC would reveal the
mechanical mindset and total lack of application of mind on the part of the authorities issuing such an
important document of utmost sanctity. 11Therefore, if there would have been any substantial question
of law relating to environment, they would have not passed the Environment Clearance order which, as
per the case in hand, was cleared by authorities whose decisions are binding on us.

9
See Goa Foundation & Anr v Union of India &Ors (2014) SC 0388(India).
10
See Dr Aravind Gupta v Union of India & Ors (2013) 1 SCC 393 (India).
11
See Sreeranganathan K.P., Sreepadam Vadakkkekkottaram (H) and others v the Union of India(2014) ALL (I) NGT
REPORTER (2) (SZ) 1.

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 ¶8. In M.C. Mehta v University Grants Commission Ors,12 it was contended that, “…Admittedly, the
present application has been filed under Section 14 of the NGT Act. Thus, it must plead and raise the
following:
a) It should be a civil case.

b) Where a substantial question relating to environment or enforcement of any legal right

relating to environment is involved.

c) Such question arises out of implementation of enactment specified in Schedule I of the NGT
Act.”13

¶9. By going with the aforementioned provisions of NGT Act declare that a direct violation of specific
statutory environmental obligations by a person by which the community at large is affected or is likely
to be affected by the environmental consequences, will be a substantial question relating to
environment14 which is not found in the present case and so the case is not maintainable under this
Hon’ble Court.

The respondent has adhered to doctrines of sustainable development, precautionary principle and
polluter pays principle.

¶10. The Precautionary Principle has been read into A.21 of the Constitution, thereby reading it
into the National Environmental law of India. Vellore Citizens Welfare Forum v Union of
India15 has been a landmark case in this regard.
“…since these principles are accepted as part of customary international law, there should be
no difficulties in accepting them as part of our domestic law.”

¶11. The judgment primarily emphasized on the fact that not only did the public have a
fundamental right to enjoy a wholesome environment under A.21, but the state had a positive
duty to ensure that such an environment was made available to the citizens. In the present case,
we have tried to ensure protection of environment with regard to the risks involved in the
project.

12
(2014) GT 0071 (India).
13
See M.C. Mehta v University Grants Commission Ors (2014) GT 0071 (India).
14
See M/S. Sterlite Industries (India) v The Chairman Tamil Nadu Pollution (2013) GT 0070(India).
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15
AIR 1996 SC 2715(India).

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Precautionary Principle and stated that the principle should be read with the principle of
sustainable development.16

¶12. Precautionary principle states that any harm which can reasonably be foreseen is to be
prevented immediately. It is submitted that Pearl Laboratories submitted its EIA (“PL EIA”) for
the extraction phase at Tiruveni village 17and it is in concurrence to the Energy Gas Corporation
(EGC) EIA which comprised a detailed report on project description, drilling technology,
description of environment, environmental impact, mitigation measures and project benefits.
From this, it is submitted that the Respondent has adhered to the Precautionary Principle by
foreseeing its reasonable harm.

¶13. Needless to say, striking a balance between the ecology and development is a difficult task.
But, at the same time, it cannot be forgotten that for ones sake other should not be sacrificed. A
balance has to be struck whereby a compromise is made in order to achieve the development
without causing environmental degradation and damaging ecology. 18Furthermore, the concept of
"sustainable development" implies development which would not severally degrade the
environment. That does not mean absence of environmental impact but means a minimal impact
which can be endured / tolerated by human beings. It also means that environment will not be
degraded to such a degree that future generation will be deprived of a clean and healthy
environment to a reasonable degree.19

¶15. It is submitted can see that the alarming growth in energy consumption across the planet
…Hind is set to play a main role along with other major jurisdictions to combat climate

16
See Tirupur Dyeing Factory Owners Association v Noyyal River Ayacutdars Protection Association and Ors., AIR
2010 SC 3645(India), Supra at 10
17
See Moot Proposition, Page 2, ¶ 11.
18
Supra note 9.
19
See Rana Sen Gupta v Union of India (2013) GT 0032(India).

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change…. Ultimately they have initiated various steps for exploration and exploitation of
hydrocarbons, shale gas and oil in order to increase the domestic oil and gas production due to
its enormous success in US.22 Through these steps, the Respondent is only trying to protect the
environmental condition which is deteriorating due to intense energy consumption which
indirectly is trying to uphold the nature and its resources for the future generations, which is
indeed the principle of sustainable development. The Petitioner has instituted this suit not
because of any concern for the environment but only for their individual benefit and thus their
contention should not be upheld. Thus it is humbly submitted that they have adhered to all
principles relating to environment protection.

There is no violation on the principle of natural justice.

¶16. Since the NGT is not bound by Code of Civil Procedure, 1908, and is guided by principles
of natural justice, the Respondent has adhered to the principle of nature justice according to
Section 19 of the NGT Act, 2010. Taking this project into consideration the Project Proponent is
legally obliged under this provision to make public the Environmental Clearance granted for the
project with the environmental conditions and safeguards at their cost by promptly advertising it
in at least two newspapers of the district or in the state where the project is located. In addition,
the order shall also be displayed on its website permanently.23It is submitted that the
Respondents have adhered to all the necessary requirements, conducted the public hearing to
acknowledge the public sentiments and also conducted the Environment Impact Assessment and
gave a detailed report on various parameters.

¶17. Though various criticisms arose due to non-inclusion of certain safety measures in the
report, the work did not affect or injure any person in that location legally or physically. Even at
the time of the difficult stage of drought, Centre subsequently approved a financial assistance of
Rs.2, 000 /- crore as against the demand of Rs.40, 000/- crore. It has to be taken into
consideration that the laws Union of Hind is in pari materia with that of Republic of India and
since it is a developing Country, it is not possible for the Government to fulfil every requirement
of the public because of the inability to make an equitable distribution of those subject matters.

22
See Moot Proposition, Page 1, ¶ 4.
23
See Wilfred J. and Ors v Ministry of Environment and Forests and Ors (2016) GT 0113(India).

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So it is submitted that the Government has tried to give a reasonable financial assistance to those
people in its capacity.

¶18. Considering the aforementioned facts and provisions, the Respondents have tried to adhere
to the principles of natural justice and therefore it is humbly submitted that there is no violation
of principle of natural justice and hence the case is not maintainable.

2. THE ENVIRONMENT CLEARANCE GRANTED BY THE STATE AUTHORITIES

IS VALID.

¶19. The counsel submits before this hon’ble court that the environmental clearance granted to
Pearl Laboratories by the respondents is valid because [2.1] the procedure of formulating the
EIA report was carried out while adhering to the provisions of law and [2.2] the respondents
have upheld the right to life of the villagers contrary to the Petitioner’s allegations. The former is
because of the fact that [2.1.1] the public hearing part of the procedure was carried out properly,
[2.1.2] the doctrine of necessity validates the respondents’ actions and the latter is because
[2.2.1] the respondents have upheld the right to development and right to livelihood,
[2.2.2]Petitionerhas vested interest in putting an end to the hydraulic fracturing operations.

[2.1] The procedure of formulating the EIA report was carried out while adhering to
the provisions of law.

¶20. The counsel submits that it is the duty of the SPCB to grant an environmental clearance to
any operation that requires the submission of an EIA report if proper adherence has been made
while carrying out the process and therefore the court must not put the respondents in further
duress for the completion of their statutory duty. It is submitted that it is usual these days for
groups such as the petitioner’s that focus the blame, for every small environment deterring event
that occurs, on the state authorities. The counsel contends that this appeal is also one such act
and this court must not waste its time on such matters. The counsel’s submissions establishing
the same are given below.

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 [2.1.1] The public hearing part of the procedure was carried out properly

¶21. In the case of Debadityo Sinha and Ors. v UOI and Ors. 24, the court had to deal with the
question of whether a notice in Delhi and a newspaper advertisement in Mirzapur for the public
hearing aspect of the EIA report served as valid completion. It was argued by the petitioner in the
abovementioned case that the lack of proper publication had caused many rural local folk to be
unaware of the event and therefore not show up.

¶22. The court in this issue held, “Public hearing is held for ascertaining concerns of local
affected persons. However, the process of public consultation also envisages obtaining of
responses in writing from other concerned persons having plausible stake in environmental
aspects or project activity. We are of the considered view that the procedure adopted for
publication of notice of public hearing has been duly followed in the present case by its
advertisement published in the mentioned newspapers.”25

¶23.In the case of MD Yogesh and Ors. v UOI and Ors. 26, the NGT while dealing with a similar
case held that allegations of small publicity of the event and of public consultation not being
carried out in the prescribed manner as queries of the few people who showed up were not
properly addressed, were dismissed by the court.

¶24. In Rajesh Kumar v Ministry of Environment, Forest and Climate Change and Ors. 27, the
Petitioners pleaded that the public hearing, a necessary ingredient of the process of grant of EC,
was not conducted as per Environment Clearance Regulation 2006 in as much as there was no
prior intimation to the villagers of the public hearing and only two attended the public hearing
and the Project Proponents lured the illiterate villagers with distribution of sweets to procure
their silence. The court in this case held that none of the “alleged” reasons establish sufficient
disparity for the public hearing to be declared invalid.

¶25. Applying the logic, applied by the hon’ble courts in the abovementioned cases, into the
case in hand, the counsel submits that the respondents look not at the company or the economic
power

24
MANU/GT/0148/2016.
25
Id. at ¶58.
26
MANU/GT/0012/2017.
Page 18 of 37
27
MANU/GT/0045/2016.

Page 19 of 37
they possess but rather whether or not the procedure that should have been complied with has
been followed and it is on the basis of this that the respondents grant the clearance.

¶26. The counsel vehemently contends that if the public consultation has been declared to be
valid when they were only published in a newspaper which caused rural people to be unaware
and thus not show up or if it was carried out in a way that ensured only a small number showed
up with no importance given to their concerns, then the public consultation procedure in the case
at hand was validly complied with as well. The counsel submits that the respondents’ failure in
publishing the clearance letter on time must not be utilised to confer additional liability due to
the fact that it was due to technical problems28 faced and therefore beyond control of the
respondents.

[2.1.2] The doctrine of necessity validates the respondents’ alleged actions.

¶27. The counsel submits that all the alleged actions of the respondents, in conducting the public
hearing in a low profile manner in the outskirts of Tiruveni 29 as well as for the publication of the
advertisement in a newspaper that would not be read by the villagers, would be validated upon
the application of the doctrine of necessity.

¶28. The Doctrine of Necessity is a term used to describe the basis on which administrative
actions by administrative authority, which are designed to restore order, are found to be
constitutional.30It is submitted that the Government cannot amend or supersede statutory rules by
administrative instructions, but, if the rules are silent on any particular point, the Government
can fill up the gaps and supplement the rules and issue instructions not inconsistent with the
rules already framed.31

28
See Moot Proposition, p.5 ¶14.
29
Id.
30
Saad Abdulbaqi Sabti & YP Rama Subbaiah, Administrative law: Doctrine of necessity, doctrine of legitimate
expectations and doctrine of delegation, INTERNATIONAL JOURNAL OF LAW, (May, 2017), Accessible at:
www.lawjournals.org/download/119/3-3-16-196.pdf, Last accessed on 25.09.2017; Shreya, Doctrine of Necessity,
LEGAL SERVICES INDIA, Accessible at:http://www.legalservicesindia.com/article/article/doctrine-of-necessity-1113-
1.html, Last accessed on 25.09.2017.
31
See Sant Ram Sharma v State of Rajasthan and Anr AIR 1967 SC 1910 (India).

Page 20 of 37
¶29. Similarly, in M. Srinivasa Prasad and Ors. v The Comptroller and Auditor General of India
and Ors.32, the Supreme Court held that if the statutory rules in force are absent or are silent on a
particular aspect, then, executive orders can fill up such lacunas. The administrative instructions
would normally have no force of law and would relate to matters procedural in nature. 33 The
counsel submits that incorporating both the above ideas into the current case in hand would
justify the acts carried out by the respondent.

¶30. It is only practical that such a project, that has conjured up so much unrest among the
people, who simply are unable to cope with or understand the impact this one site could have for
the country, accentuated to an intolerable level by environmental groups who practice a system
of no-confidence with the government while being funded private corporations, must not have a
public hearing any place near the site or the village because the villagers’ conviction in the ill
effects of fracking would end up clouding the reasoning side and things could quite possibly end
up in violence and destruction to the village, site and equipment. The counsel submits that under
the doctrine of necessity the actions of the respondents are justified.

[2.2]The respondents have upheld the right to life of the villagers contrary to the
Petitioner’s allegations.

¶31. It is a well-accepted notion that every right available to a person creates an obligation or a
duty upon the governing authority to uphold these rights. The counsel submits that the
respondents’, in granting the clearance have effectively upheld the right to livelihood and right
to development of the villagers under A.21. Furthermore, it is submitted that, unlike the
allegations made by the petitioner, shale gas has a lot of positive impacts on the environment
and therefore its continuation would result in a cleaner environment.

[2.2.1]The respondents have upheld the right to development and right to livelihood

¶32. The right to development ensures a development that is a comprehensive economic, social,
cultural and political process, which aims at the constant improvement of thewell-being of the
entire population and of all individuals on the basis oftheir active, free and meaningful
participation in development and in the fairdistribution of benefits resulting therefrom. It is a

32
(2007)10 SCC 246.
33
See S.P. Muthuraman and Ors. v Union of India and Ors. , MANU/GT/0116/2015.

Page 21 of 37
known fact that with respect to compliance with States tend to express rhetorical support for this
right but neglect its basic precepts in development practice.34

¶33. It is submitted that every human being possesses a valid right to development under A.21
of the Constitution of Hind as it is one of the facets of the right to life.

¶34. It was held by the hon’ble supreme court in the case of Samatha v State of Andhra
Pradesh35that, “Theright to life as claimed by the Applicant, is no doubt, guaranteed by Article
21 of theConstitution. One of the facet of Article 21, however, is also the right to ensure
development of the society and welfare of the society. No doubt, right to have a clean
environment is fundamental right. On the other hand, the right to develop isalso an equally
important one”

¶35. The abovementioned statement was applied by the court in the case of Lower Painganga
Dharan Virodhi Sangharsha Samiti Through its Convener Shri. Balaji and Shri. Deorao v The
State of Maharashtra, through its Secretary Revenue and Forest Department and Ors. 36 while
deciding on the validity of an environmental clearance and forest clearance that provided for the
carrying out of the Painganga irrigation project, which according to the applicant was primarily
obtained without adhering to proper procedure which has resulted in the displacement of the
residents or even a general imbalance in the ecosystem due to the damage rendered upon to the
environment by way of induced seismic activities and other pollution.

¶36. The respondent counsel submits that to adhere completely to the principle of sustainable
development does not mean eradicating pollution for today but in ensuring that there is a plan to
ensure that this control lasts for the future generation. Therefore, even though the respondents’
recognise that fracking like every other activity does pollute the environment, the success of
hydraulic fracturing could nullify other energy sources and thereby reducing pollution in the long
term.

¶37. The counsel submits that this is the true way to uphold the principle of sustainable
development. The counsel submits that individual interest or, for that matter, smaller public

34
Stephen Marks, The Human Right to Development: Between Rhetoric and Reality, HARVARD HUMAN RIGHTS JOURNAL,
Vol.17, p.137.
35
1997 8 SCC 191.
36
MANU/GT/0020/2014.

Page 22 of 37
interest must yield to the larger public interest and, therefore, inconvenience of some should be
bypassed for a largerinterest or cause of the society 37 which is, in the case at hand, is the
eradication of pollution on a national level which can be achieved if hydraulic fracturing is
established properly.

¶38. Furthermore it was held in the case of MP Patil v UOI, through its Secretary38, that,
“Development may be carried out to satisfy the need of a developing society but it has to be
regulated so as to satisfy the requirement of preservation and nurturing of the natural resources,
which are the real assets of the society.”39

¶39. The counsel submits that there has no evidence linking hydraulic fracturing to the
environmental effects seen in Tiruveni village such as the drought and therefore as per the
abovementioned statement the development works is being carried out while simultaneously
preserving the natural resources as well.

¶40. With the defining of the word “life” in Article 21 in broad and expansive manner, the court
in Board of Trustees of the Port of Bombay v Dilipkumar Raghavendranath Nandkarni 40, came
to hold that “the right to life” guaranteed by Article 21 includes “the right to
livelihood”.Furthermore in the Pavement Dwellers Case41,a five judge bench of the Supreme
Court now implied that ‘right to livelihood’ is borne out of the ‘right to life’, as no person can
live without the means of living. The court in the same case stated that, “An equally important
facet of the right to life is the right to livelihood because no person can live without the means of
livelihood.”42

¶41. A recent study by IHS Global Insight calculates that shalegas development currently
supports more than 600,000 direct, indirect, and induced jobs and projects this number to grow
to
1.66 million jobs by 2035. It is submitted that fracking once established throughout the country
can create 1.66 million jobs a good fraction of which would be available to the residents of
Tiruveni village once the work begins. Furthermore, it is evident that the land’s fertility would

37
See G. Sundararjan v Union of India & Ors.MANU/SC/0466/2013.
38
MANU/GT/0021/2014.
39
See MP Patil v UOI, through its Secretary v UOI, MANU/GT/0021/2014, p.27, ¶75.
40
(1983) 1 SCC 124.
41
See Olga Tellis v Bombay Municipal Corporation, AIR 1986 SC 180 (India).
Page 23 of 37
42
Id.

Page 24 of 37
be affected by the droughts and other issues prevalent at the moment which would result in the
farmer’s losing their occupation. However it is submitted that the right to livelihood of the
person is upheld by the state at this time due to the availability of a number of jobs in carrying
out the process of hydraulic fracturing.

[2.2.2]Petitioner has vested interest in putting an end to the hydraulic fracturing operations

¶42. The counsel submits that hydraulic fracturing if established can create an economic boom
in our country. But in doing so it shall be effectively displacing the coal industry which, as the
application of fracking goes nationwide, shall result in an end to the usage of coal as a fuel. The
counsel submits that it cannot be a coincidence that the same group, that seems so inclined onto
the exaggerated ill effects of fracking and is the main source from which the villagers derive
their knowledge on the process, is funded by a coal company. It is submitted that such a detail
causes a shade of doubt to fall upon the Petitioner’s motives as well.

¶43. In the case of Ashok Kumar Pandey v State of W.B 43 it was held that, “the Court must be
careful to see that a body of persons or a member of the public, who approaches the Court is
acting bona fide and not for personal gain or private motive or political motivation or other
oblique consideration.”44 This was further reiterated in the case of Vijay Singh v Balaji Grit
Udyog (Unit-I and Unit-II) 45It is submitted that the courts must do justice by promotion of good
faith and prevent law from crafty invasions. 46 It is further submitted that the Petitioner has not
made out a prima facie case nor is the balance of convenience in favour of the Petitioner. The
present appeal is motivated, frivolous, vexatious and as such without any merits. Ultimately the
public interest is suffering because of the vested interest of the Petitioner.47

¶44. The respond submits that the court must not allow the plight of such a group that has
thrived due to its funding by the coal based company because such a group would show a certain
amount of pecuniary bias towards the coal industry and not towards anything else.

43
MANU/SC/0936/2003.
44
Id.
45
MANU/GT/0036/2014.
46
Id., ¶16.
47
R. Veeramani v The Secretary, Public Works Department and Ors.; MANU/GT/0027/2013 (India).

Page 25 of 37
 ¶45. The respondent finally submits that by way of case laws, arguments advanced and statutes
that the respondents have not carried out any activity with any ulterior motive other than the
benefit of this country and its people unlike the Petitioner.

3. HYDRAULIC FRACTURE COULD POTENTIALLY MAKE HIND A SUPER POWER IN TERMS OF ENERGY

¶46. Union of Hind is the second most populous country, being the third largest energy consumer
is the world, with energy consumption rate expected to grow exponentially48 which makes it
vital for the government to take measures for effective replacement of coal consuming Industries
with Natural Gas, to meet the future energy requirements. Beyond meeting more of the nation's
burgeoning energy needs, unconventional oil and gas development would also benefit Union of
Hind geopolitically. Reducing the nation's dependence on foreign energy improves its energy
security and ultimately its national security. Reducing energy imports also shrinks the outflow of
money to foreign interests, making these funds available for domestic investment.

Economic Development observed in the United States

¶47. Between 2009 and 2010, proved oil and gas reserves increased by more than 12% due to
expanding exploration and development through Fracking, and this marked the largest increase
recorded. 49 As a result, the ratio of energy imports to exports has decreased from eight to one in
2002 to three to one in 2011. 50

¶48. Unconventional oil and gas development has provided significant economic benefits for the
United States. A recent study by IHS Global Insight calculates that shalegas development
currently supports more than 600,000 direct, indirect, and induced jobs and projects this number
to grow to 1.66 million jobs by 2035.51 The same study estimates that lower energy costs have

48
Moot Proposition, Page 4, ¶ 1.
49
See EIA, U.S. Crude Oil, Natural Gas, and Natural Gas Liquids Proved Reserves (Aug. 12, 2012),
http://www.eia.gov/naturalgas/crudeoilreserves.
50
See EIA, Energy Perspectives: United States Energy Imports Decline While Energy Exports Increase (Dec. 17, 2012).
http:// www.eia.gov/todayinenergy/detail.cfm?id=9230.
The Economic And Employment Contributions Of ShaleGas In The United States,IHS GLOBAL
51

INSIGHT, 20-21 (Dec. 2011) (prepared for America's Natural Gas Alliance), available
athttp://www.ihs.com/info/ecc/a/ shale-gas-jobs-report.aspx.

Page 26 of 37
 increased annual household disposable income by $926 and that the shalegas industry is
generating $18.6 billion in annual tax revenues and $76 billion in gross domestic product; by
2035, these numbers are projected to increase to $2,000, $57 billion, and $231 billion,
respectively.52

¶49. A similar study by the American Chemistry Council describes shalegas as an economic
“game changer,” which is creating “a competitive advantage for US manufacturers, leading to
greater investment and industry growth.” 53
It finds that lower energy costs will increase the
output of eight gas-intensive manufacturing industries by $121 billion, generating $26 billion in
annual tax revenues and $76 billion in capital investment and construction activity. A recent
54

trade press article notes that chemical and related industries have already announced $45 billion
in new projects in the United States. 55

¶50. With a view the make the Union of Hind Economically sustainable and provide for the
future need and demand for Energy, the Project Proponents believe and agree with the decision
taken by the Government and recognise the Right and need for Development.

Fracking process does not cause large scale damage to the environment

A. Induced Seismic activity would not result in large earthquakes

¶51. The National Research Council has recently addressed the earthquake issue.56Their report
acknowledges growing public concern over the potential for various energy technologies that inject or

Hydraulic Fracturing: How It Works - Hydraulic Fracturing: The Process (“Fracfocus Hydraulic
52

Fracturing Process”), FRACFOCUS, (Sept., 2016) http:// fracfocus.org/hydraulic-fracturing-how-it-

works/hydraulic-fracturing-process.

AMERICAN CHEMISTRY COUNCIL, COMPETITIVENESS AND NEW U.S. INVESTMENT: A

53

CASE STUDY OF EIGHT MANUFACTURING INDUSTRIES 1 (May 2012), available

athttp://www.americanchemistry.com/Policy/Energy/ Shale-Gas.
54
SECRETARY OF ENERGY ADVISORY BOARD, SHALEGAS PRODUCTION SUBCOMMITTEE 90-DAY REPORT at 5 (Aug.
18, 2011) (“SEAB 90-DAY REPORT”), available athttp:// www.shalegas.energy.gov/index.html.
Michael Lauzon, Shalegas to give US plastics sector a boost, PLASTICS & RUBBER WEEKLY, Dec.
55

12, 2012, http:// www.prw.com/subscriber/headlines2.html?cat=1&id=2004.

Induced Seismicity Potential in Energy Technologies, NATIONAL RESEARCH COUNCIL, and (June
56

15, 2012), available athttp://dels.nas.edu/besr.

Page 27 of 37
extract fluid from the subsurface, including hydraulic fracturing, to cause induced seismic events. 57But
they conclude that hydraulic fracturing “does not pose a high risk for inducing felt seismic events” in
large part because of the relatively short duration of the injection process and small volume of fluids
58
involved. DOE has reached similar conclusions, noting that the process “rarely creates unwanted
induced seismicity that is large enough to be detected on the surface--even with very sensitive
sensors.”59
B. Wastewater Management
¶52. To protect ground water, wells are constructed with multiple layers of steel pipe called
“casing,” which are surrounded by layers of cement. 60The steel casing and surrounding cement
isolate the internal portion of the well from the surrounding geologic formations, which may
include fresh water aquifers; they thereby help ensure that neither the fracturing fluids injected
down the wellbore nor the oil and gas flowing up the wellbore can reach the aquifers. 61
Measures
to prevent surface spills and releases include lined pits, setbacks from surface waters, and
“closed loop” fluid handling systems.

¶53. Chemical additives constitute .5% to 2% of the hydraulic fracturing fluid, and they toovary
by well and formation.62Each additive serves a specific purpose. For example, friction reducers
decrease pumping friction, gels improve sand distribution, and biocides eliminate bacteria that
can cause corrosion.63The States of Colorado and Texas found that hydraulic fracturing accounts
for one percent or less of annual water use.

57
Id.
International Energy Administration, Golden Rules for a Golden Age Of Gas At 9, IEA GOLDEN
58

RULES REPORT(May 29, 2012), available athttp:// www.worldenergyoutlook.org/.

DOE, Induced Seismicity Primer, EARTH SCIENCES DIVISION, LAWRENCE LIVERMORE

59

LIBRARY,http://esd.lbl.gov/research/projects/induced_ seismicity/primer.html.
60
SeeFracfocus Hydraulic Fracturing Process, Supra; Groundwater Protection: Well Construction and Groundwater
Protection (“Fracfocus Well Construction”), FRACFOCUShttp://www.fracfocus.org/hydraulic-fracturing-how-it-
works/casing.
61
Id.
SeeChemical Use in Hydraulic Fracturing: Introduction to Chemical Use, FRACFOCUS,
62

http://www.fracfocus.org/water-protection/drilling-usage.
63
Chemical Use in Hydraulic Fracturing: What Chemicals Are Used, FRACFOCUS,
http://www.fracfocus.org/chemicals-use/why-chemicals-are-used.
Water Sources and Demand For The Hydraulic Fracturing Of Oil And Gas Wells In Colorado from
64

2010 Through 2015, COLORADO WATER CONSERVATION BOARD, AND COLORADO OIL
AND
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 The Environmental Laws and Procedures have not been ignored

ine of Sustainable Development and Precautionary principle have been accounted for in the present case.

¶56. None of the doctrines of environmental jurisprudence can be perceived without the doctrine
of sustainable development.71 Merely using the doctrine of Sustainable development has led to
synchronising the protection of the environment, 72 without compromising on encouragement
given to development.73 Sustainable development has become the “most significant and focal
point of environmental legislation and judicial decisions relating to the same.” 74
The
development is such that the future generations are not deprived of environment
completely.75However, this development should take place in the interest of the public. 76 And
keeping in mind the interest of the public and need for the future generations, there is a
requirement of rapid Energy Generation; It was held in Intellectuals Forum v State Of A.P.,77
“Merely asserting an intention for development will not be enough to sanction the destruction of
local ecological resources. What this Court should follow is a principle of sustainable
development and find a balance between the developmental needs which the respondents assert,
and the environmental degradation, that the Petitioner alleges.”

¶57.The Hon’ble Supreme Court has in another case, 78 read Right to Development into A.21 of
the Constitution and held that Right to a Healthy Environment should be read in a corresponding
manner with Right to Development and one cannot be advantaged over the other. Here the right
is not treated as a mere economic right. As Amartya Sen’s book said 'the issue of development

71
See Vellore Citizens Welfare Forum v Union of India Reported, (1996) AIR 1996 SC 2715, ¶11.
72
See Essar Oil v Halar Utkarsh Samiti AIR 2004 SC 1834, ¶27.
73
See Intellectuals Forum, Tirupati v State Of A.P, AIR 2006 SC 1350 (India), ¶56.
74
See Bombay Dyeing 81 Meg. Co. Ltd. v Bombay Environmental Action Group And Others, 2006(3) SCC 434,
¶251.
75
M. Shamsul Haque, Environmental Discourse and Sustainable Development: Linkages and Limitations, ETHICS AND
THE ENVIRONMENT, Vol. 5, No. 1 (2000), pp. 3-21.
76
See Friends Colony Development Committee v Orissa, (2004) 8 SCC 733(India), ¶6.
77
Supra at 73.
78
See N.D. Jayal and Anr. v Union Of India Others, (2004) 9 SCC 362, ¶23.

Page 29 of 37
cannot be separated from the conceptual framework of human right'. 79 Hence this right becomes
all the more imperative to human survival.

The decision of the Environment Impact Assessment Committee should be relied upon.

¶60. In this case, the Environment Impact Assessment Committee 85 to conduct an inquiry into
the impact on the environment caused by fracking. 86The formulation of the impugned act was
contingent on the response by the EIA’s report. EIA’s reports mentioned the possibility of social
and environmental harms that could take place if such an idea was given legislative binding, but
also cleared the project since these harms could be afforded in course of development.

¶61.Hence, the EIA ratified and approved the idea of Fracking for Extraction of Shale Gas and
providing Environmental Clearance. The NGOs merely have an apprehension of environmental
damage, which is unfounded since the EIA has promised otherwise. 87 Since the courts do not
have judicial review over the work of the expert committee, when the EIA is claiming that the
consequence of implementing the impugned act will have no drastic environmental damages that
will irreversibly damage the environment, the court should adhere to their decision. Due to
aforementioned cases, law and arguments, the Counsel humbly submits that no environmental
rights of the citizens have been violated since harm to the environment is a mere apprehension of
the future and EIA has promised that the harm can be avoided if due care is taken.

79
Amartya Sen, (1999). Development as freedom, (1st ed.). NEW YORK: OXFORD UNIVERSITY PRESS, 1999.
80
See Dalpat Abasaheb Solunke and Ors. v Dr. B.S. Mahajan and Ors., AIR 1990 SC 434, ¶7.
85
Dr. Maheshwara Swamy, Law Relating To Environmental Pollution And Protection, 2 THOMSON REUTERS, P.1058.
86
See Moot Proposition, p. 5, ¶7

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 PRAYER

In light of the issues raised, arguments advanced and authorities cited, the counsel for the

Respondent humbly prays that the Hon’ble Tribunal be pleased to adjudge, hold and declare:

1. That, the appeal filed by the Petitioner is not maintainable.

2. The Environment Clearance granted by the state authorities is valid.
3. Hydraulic fracturing could potentially make Hind a super power in terms of energy and thus
must be allowed.

And pass any order that this Hon’ble Tribunal may deem fit in the interest of equity, justice and
good conscience.

And for this act of kindness, the counsel for the petitioner shall duty bound forever pray.

Sd/-

(Counsel for Respondent)

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