MEMORIAL FROM SIDE OF APPELLANT BEFORE THE HONOURABLE COURT OF BRAHMA IN THE MATTER OF ALERT INDIVA & ORS------------------------2----=------7 APPELLANT STATE OF BRAHMA & ORS---------------------—---- RESPONDENT Se enn a ON SUBMISSION TO THE HON’BLE COURT MEMORIAL FILED ON BEHALF OF THE APPELLANTTABLE OF CONTENT Cecceccececceececceecceccceecceecceecce ‘STATEMENT OF JURISDICTION LIST OF ABBREVIATIONS Books and Websites referred STATEMENT OF JURISDICTION STATEMENT OF FACTS STATEMENT OF ISSUES SUMMARY OF ARGUMENTS ARGUMENTS ADVANCED PRAYER 2|Page= StuDocu a @ @ Premium ) i+ 2I Page LIST OF ABBREVIATIONS 1 & & 2 AIR All India Reporter a Art. Art, 4, ie, that is S sce ‘Supreme Court Cases | [6 Govt. Government 7 Vs. [ve 8. Ld, Limited 9 No. Number 10. [os Others u, Sec. Sec. 2 Hon'ble Honorable 13. HC High Court 4 vor Union OF India 3] Page= StuDocu a2 @ @ Premium ) & 3| Page BOOKS AND WEBSITES REFERRED | Books Constitution on India By P.M. Bakshi Bare Act of Constitution Websites https://www,scconline,com/Members/SearchResult.aspx https://www.casemine.com/search/in Cases used * R. Prakash Vs The Govt. of Tamil Nadu Ors 2016 SCC OnLine Mad 15634 ¢ Patel Kanjibhai Natthubhai Vs.Collector of Mehsana 2011 SCC OnLine Guj 6361 * Col. A.S. Sangwan v., Union of India 4|Page= StuDocu Q @- @ Premium ) rs A 4) Page STATE MEN’ JURISDICTIO! — JE APPELLANT FILED THE PIL & HI yr s i TI Tr VA, THE FA‘ A T.2: 227 ‘HE PRESENT MEM S| FO! IN — In which the followings are: Art. 21: Protection of Life & Personal Liberty. It states that “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” Thus, Art.21 secures two rights: Right to life, &. 2) Right to personal liberty. Art. 226: Empowers the high courts to issue, to any person or authority, including the Govt.(in appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari. Art. 227: Power of superintendence over all courts by the HC (1) Every High Court shall have superintendence over all courts & tribunals throughout the territories in relation to which it exercises jurisdiction. (2) Without prejudice to the generality of the foregoing provision, the High Court may- APP! S| Page= StuDocu a Premium ) Q provision, the High Court may- MEMORIAL FROM SIDE OF APPELANT S|Page (a) Call for returns from such courts; (b) Make & issue general rules & prescribe forms for regulating the practice & proceedings of such courts; & (c) Prescribe forms in which books, entries & accounts shall be kept by the officers of any such courts. (3) The High Court may also settle tables of fees to be allowed to the sheriff & all clerks & officers of such courts & to attorneys, advocates & pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, & shall require the previous approval of the Governor. (4) Nothing in this Art.shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. MEM 6|Page= StuDocu Q By @ Premium ) gr im 6|Page MENT OF FA‘ 1. The State of BRAHMA is one of the States in Indiva. Due to wrath of nature the state is facing an acute scarcity of water & the condition in major part of the state is near to drought. 2. To meet this situation, the state of BRAMHA has taken a policy the number of dams in the State so that the decision to construct he dams which would help rainy water could be accumulated in t! in meeting the growing needs of water for the purpose of drinking, agriculture & also for the industries. The Govt.is also of the opinion that the accumulation water in the dams would help in recouping the underground water level in the state. 3. One of such dams is to be constructed in a district which is more severely affected. The construction of the dam would affect ten villages which are adjoining to the location of the dam. The villagers have agriculture as their main occupation &as a consequence of the water stored in the dam, their agricultural fields would either be submerged or get water logged which would deprive them of their right to livelihood. The state of BAMHA for the purpose of the construction of dam had floated global tenders & one of the companies, Reliable Industries Ltd.has been given a contract to construct a dam. 4. The reliable industries Ltd.for the purpose of construction of the dam had applied for environment clearance to the Ministry of Environment & Forest for the purpose. Environment clearance has been given to the company on the ground that the Govt.has an authority to do so in larger public interest. 5. The agriculturist in the village are also not in favor of the construction of the dam Since they would be displaced from the 1& where the dam is to be constructed & Would be deprived of their livelihood. MEMORIAL FROM SIDE OF APPELANT. 7|Page= StuDocu Premium ) MEMORIAL FROM SIDE OF APPELANT 7|Page 6. “Alert Indiva” is NGO which for the protection of environment in Indiva. “Alert Indiva” which is fighting for the cause of environment has appealed to the Govt.not to proceed with the construction of the dam since it would lead to An environmental imbalance in the State. However the state of BRAMHA is determined to proceed with the construction of Dam in public interest. 7. “Alert Indiva” has therefore filed a petition under Art.226 & Art.227 of the Constitution of Indiva on the ground that the Environment Clearance Certificate Granted is bad in letter & spirit of the constitution & against the national interest. “Alert Indiva” has also taken the cause of the agriculture who are likely to be Displaced & has submitted that the construction of the said dam is in violation of Art.21 of the constitution of Indiva as regards right to life & Personal liberty of the Agriculturists in the area. STATEMENT OF ISSUES 1. Whether the present petition has been field in public interest & therefore Maintainable as a Public Interest Litigation? 2. Whether the Writ Petition filed under Art.226 & Art.227 of the Constitution of Indiva is Maintainable? 3. | Whether the High Court of BRAMHA can interfere in any policy decision taken by The State of BRAMHA? 4. Whether the displacement of the agriculturists from the area where the proposed dam is to be constructed amounts to violation of Art. 21 of the Constitution of Indiva? ‘MEMORIAL FROM SIDE OF APPELANT 8|Page= StuDocu Q oO Premium ) & MEMORIAL FROM SIDE OF APPELANT Bi Page SUMMARY OF ARGUMENTS Whether the present petition has been filed in public interest and therefore is it maintainable as PIL? The petition claimed by the petitioner is maintainable in the court of law. The Hon’ble Judge of the High Court at BRAMHA has the inherent jurisdiction to try, entertain the present case by virtue of its writ jurisdiction; the petitioner has filled the Public Interest Litigation before the Hon'ble High Court of BRAMHA, in the matter under Art. 226 OF CONSTITUTION OF INDIVA. Whether the writ petition filed under art.226 and art.227 of the constitution of Indiva is maintainable? Yes, the Writ Petition filed under Art.226 and Art.227 of the Constitution of Indiva is maintainable under the eyes of law. Art, 226 of Indiva Constitution mentions power of High Courts to issue certain writs. Any member of the Public or social action group can plea for the Writ Jurisdiction of the High Courts, under Art. 226, seeking redressal against violation of legal or constitutional rights of persons who due to social or economic or any other disability cannot approach the Court. Whether the high court of Brahma can interfere in any policy decision taken by the state of brahma? The courts in exercise of their power of Judicial Review, do not ordinarily interfere with the policy decisions of the executive, unless the policy can be faulted on grounds of mala fide, unreasonableness, Which will be discussed further Whether the displacement of the agriculturists from the area where the proposed dam is to be constructed amounts to violation of art. 21 of the constitution of Indiva? Yes, displacement of the agriculturists from the area where the proposed dam is to be constructed amounts to violation of Art. 21, of the Constitution of Indiva. Because Art. 21 protects the life and personal liberty of an individual. It states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” The construction of the dam would affect ten villages which are adjoining to the location of the dam. The villagers have agriculture as their main occupation and as a consequence of the water stored in the dam, their agricultural fields would either be submerged or get water logged which would deprive them of their right to livelihood. This is also in violation of right to life and personal liberty of the agriculturists in the area land. MEMORIAL FROM SIDE OF APPELANT 9| Page= StuDocu Q Premium ) ry) [Page ARGUMENTS ADVANCED Issuel Whether the present petition has been filed in public interest and therefore is it maintainable as PIL? The Counsel Humbly Submits before this Hon’ble Court that the present petition has been filed in public interest for the people of Bramha as due to the environment imbalance has also taken place and livelihood of the people of these villages is in danger. It is affecting majority of the agricultural based families. Building of a dam isa very difficult process and it is going to be done in a very sensitive area where the agricultural fields would either be submerged or get water logged which would deprive them of their right to livelihood. Rather Govt. is not thinking of the poor famers and people of villages that what will happen to them even after govt. allot them the land in a new place but what's the benefit of that if they can’t make their livelihood. Council like to mention about a case’ in which it is clearly mentioned by justice s. Manikumar “No doubt, Public Interest Litigations have come to occupy an important field in the administration of Law. Public Interest Litigations are very useful handle for redressing the grievances of the people. But, unfortunately, lately, it has been abused by interested persons. Administration of justice should not be for any publicity interest litigation or private interest litigation or political litigation, There must be real and genuine public interest. Courts of Justice should not be allowed to be used by unscrupulous litigants under this extraordinary jurisdiction.” By this council like to mention that the issue of farmers is under the interest of public and the livelihood of them. IR. Prakash Vs The Govt. of Tamil Nadu Ors 2016 SCC OnLine Mad 15634 MEMORIAL FROM SIDE OF APPELANT 10 [Page= StuDocu Q @ ¥ @ Premium ) A TA. Prakash Vs The Govt. of Tamil Nadu Ors 2016 SCC OnLine Mad 15634 MEMORIAL FROM SIDE OF APPELANT 10 Page Issue2 Whether the writ petition filed under art.226 and art.227 of the constitution of Indiva is maintainable? Council humbly like to mention that it completely maintainable under Art.226 and 227 i.e. “The power of the HC to issue writes under article 226 is wider than that of the SC. It is not confined to fundamental rights , but extends to all cases where a breach of right is alleged’ *. ‘And here the right of personal liberty is breached. Art.226 also states about its maintainability i.e. ‘If the respondents are not employees of Govt. the writ would not be maintainable’. And according to a case* which says ‘that HC have the power to issue writ of Mandamus or any other appropriate writ to direct the respondents not to dispossess the petitioner during pendency, During the pendency and final disposal of this petition the respondents may be direct not to take the possession till the suit is decided finally’. This also makes the Petition maintainable. Issue3, Whether the high court of Brahma can interfere in any policy decision taken by the state of brahma? Directions given by the HC under 226 can not be altered by the state Govt. Policy Decisions of the State are not to be disturbed/interfered with unless they are found to be grossly arbitrary or irrational this is a statement by SC, and it is also mentioned in the judgement of case° that while infringement of fundamental right HC can pass a order to state for a stay or shutting down or just adjust it and readjust it according to. the compulsions of circumstances and the imperatives of national considerations. 2 he corsiation Onda by PM, Bats year 2082 Page no 213 3 the Corsten Of Ida by PM. sth yea 2012 Pogeno213 {4 Patel Kanjlbhai Natthubhai Vs.Collector of Mehsana 2012 SCC OnLine Guj 6361, 5 Col. AS. Sangwan v Union of India MEMORIAL FROM SIDE OF APPELANT [Page= StuDocu a @y Premium ) ra Q issue Nos, Whether the displacement of the agriculturists from the area where the proposed dam is to be constructed amounts to violation of art. 21 of the constitution of Indiva? Council like to mention the above arguments are typically based on the infringement of article 2 which is being violated, So Govt. can shift those villagers to another place and can construct the dam easily but what about the consequences that villagers will face? It is mentioned under Art.21 "Protection of Life and Personal Liberty: no person shall be deprived of his life and personal liberty except according to procedure established by law”. The state ‘cannot snatch their land and give them any other land to start their lives all over again. They have the right to live wherever they want, they have the liberty of choosing how they want to leave. Shifting to another place, they have to search new resources for agricultural activities , building new homes & being from farming background they use to have cattle with them it will take around 2 to 3 years to cope up from new situations of life. Their main occupation is agriculture, which affects a lot due to movement in the land what is the soil of new land in not much fertile They don't know anything about the fertility soil, new environment, they even don't know about the new atmosphere of that place is good for their crops or not. As in it will be good for the society like it to just with them a substitute of land or compensation because their peace of living and liberty will be violated. L FR [Page= StuDocu Q py @ Premium ra a PRAYER In light of the questions presented, arguments advanced and authorities cited the counsel for the appelent most humbly and respectfully pray before this Hon'ble Court, that it may be pleased to adjudge and declare that: 4a) That the Present Petition is maintainable as Public Interest Litigation and the Writ Petition filed under Art.226 and Art.227 of the Constitution of Indiva is Maintainable. ’b) The High Court can interfere in any policy decision taken by the state of Bramha, ©) The Displacement of the agriculturists amounts to violation of Art.21 of the Constitution of Indiva. ‘The Petitioner additionally prays that the Court may make any such order as it may deem fit in terms of equity, justice and due conscience. And for this act of kindness the Petitioner shall as duty bound ever humbly pray. (Respectfully Submitted) - Counsel on behalf of the Appelant. 13|Page