B-57

IN THE HON’BLE HIGH COURT OF KERELA

IN PIL NO. _____ OF 2022

IN THE MATTER OF

People’s Union for Environment Protection ....PETITIONER

v.

STATE OF KERELA ....RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

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TABLE OF CONTENTS

ABBREVIATIONS ........................................................................................................................ 3
TABLE OF AUTHORITIES .......................................................................................................... 4
STATEMENT OF JURISDICTION............................................................................................... 5
STATEMENTS OF FACTS ........................................................................................................... 6
Background- .............................................................................................................................. 6
Occurrence of Events- ............................................................................................................... 6
Epilogue- .................................................................................................................................... 6
ISSUES RAISED ............................................................................................................................ 7
WHETHER THE PIL FILED BEFORE THE HON’BLE HIGH COURT OF KERELA
UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA IS MAINTAINABLE OR
NOT? ........................................................................................................................................... 7
WHETHER THERE IS ANY VIOLATION OR ENCROACHMENT OF FUNDAMENTAL
RIGHT OR NOT? ....................................................................................................................... 7
SUMMARY OF ARGUMENTS .................................................................................................... 8
ARGUMENTS ADVANCED ........................................................................................................ 9
1. WHETHER THE PIL FILED BEFORE THE HON’BLE HIGH COURT OF KERELA
UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA IS MAINTAINABLE OR
NOT? ....................................................................................................................................... 9
1.1 Non maintainability of PIL filed by PUEP .................................................................... 9
1.2 Alternative remedy exhausted or not- ................................................................. 10
2. WHETHER THERE IS ANY VIOLATION OR ENCROACHMENT OF
FUNDAMENTAL RIGHTS OR NOT? ................................................................................ 10
2.1 Whether the environment clearance is valid ................................................................ 10
2.2 Employment Opportunities .......................................................................................... 11
2.3. Right to sustainable development adhered while in production of M.I.C .................. 11
2.4. Whether Art. 14 of Indian Constitution is violated or not. ......................................... 11
2.5. Proper technique and equipments used for production of M.I.C ................................ 12
PRAYER ....................................................................................................................................... 13

MEMORIAL FOR RESPONDENTS

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ABBREVIATIONS

Art. Article
Hon’ble Honorable
HC High Court
SC Supreme Court
PIL Public Interest Litigation
v. Versus
Sec. Section
U/s Under section
Acc. According
Ltd. Limited
FR Fundamental Rights
MIC Methyl Iso Cynate
PUEP People’s Union for Environment Protection

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TABLE OF AUTHORITIES

Cases
Assistant Collector of Central Excise v. Jainson Hosiery Industries, 1979 4 SCC ........................ 9
Hinch Lal Tiwari v. Kamala Devi and others, AIR 2001 SC 3215 .............................................. 10
L. Chandra Kumar v. Union of India, AIR 1997 SC 1125. ............................................................ 9
M.C. Mehta v. Union of India, AIR 1987 SC 965 ........................................................................ 10
T.N. Godavarman Thirumulpad vs Union Of India, AIR 1997 SC 1228. ...................................... 9

Statutes
The Environment (protection) Act, 1986. ..................................................................................... 10

Constitutional Provisions
Article 21, Constitution of India, 1949 ........................................................................................... 9
Article 226 in The Constitution Of India 1949- Power of High Courts to issue certain writs ....... 4

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STATEMENT OF JURISDICTION

The Hon’ble High Court of Kerela has inherent jurisdiction to try, intervene and dispose of the
present case by the virtue of Art. 2261 of the Constitution of India.

The counsel of respondent contends the present PIL filed under Art. 226 of the Constitution of
India in the matter People’s Union for Environment Protection v. State of Kerela, set forth the
facts, contentions and arguments present in this case. The respondent Maintains that no violation
of rights has taken Place. Therefore, this hon’ble court need not Entertain its jurisdiction.

1
Article 226 in The Constitution Of India 1949- Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation
to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person
may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause
of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government
or authority or the residence of such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is
made on, or in any proceedings relating to, a petition under clause (1), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order;
and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such
order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel
of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it
is received or from the date on which the copy of such application is so furnished, whichever is later, or where the
High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High
Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as
the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the
Supreme court by clause (2) of Article 32.

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STATEMENTS OF FACTS
Background-
The management of Kerala Chemicals limited, a State-owned chemical factory which was
running in loss, decided to manufacture a new product. Methyl Iso Cynate (M.I.C) a chemical
which has high demand in the international market. The management aimed to overcome the
financial crisis faced by them by exporting the new product. They decided to manufacture the
new product, Methyl Iso Cynate (M.I.C) in a new plant installed within the factor site.

Occurrence of Events-

There was an expert-report to the effect that if Methyl Iso Cynate was produced negligently, it
would be highly hazardous to human being and would create serious environmental problem.
The factory was located in the heart of a major city. However, a river which was the major
source of water for the inhabitants flows nearby the factory site.

Epilogue-

A group of inhabitants who were members of People’s union for Environmental Protection, a
registered society, brought the matter before the High Court, challenging the action of the
company to prevent the authorities from manufacturing Methyl Iso Cynate.
The management contented that their action was in public interest and they have taken adequate
precaution to prevent and accidents. They also contented that if they are prevented, it may affect
the life of the substantial number of workers of the factory, who depend solely on the wages
from the factory for their livelihood. There were more than 3000 workers in the factory.

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ISSUES RAISED

1.

WHETHER THE PIL FILED BEFORE THE HON’BLE HIGH COURT OF KERELA UNDER
ARTICLE 226 OF THE CONSTITUTION OF INDIA IS MAINTAINABLE OR NOT?

2.

WHETHER THERE IS ANY VIOLATION OR ENCROACHMENT OF FUNDAMENTAL

RIGHT OR NOT?

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SUMMARY OF ARGUMENTS

1. WHETHER THE PIL FILED BEFORE THE HON’BLE HIGH COURT OF

KERELA UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA IS
MAINTAINABLE OR NOT?
It is humbly submitted that the PIL filed by the petitioners is not maintainable under Art. 226
filed by the petitioner is not maintainable. The essential grounds for the writ to be maintainable
have not been fulfilled. A writ PIL can be filed by any person whose Fundamental Rights have
been infringed by the State. For the enforcement of Fundamental Rights, as protected by Part III
of the Constitution, a Public Interest Litigation may be brought under Article 226 of the
Constitution. Since the factory's action was done to advance the idea of economic and social
fairness, it cannot be said to have been arbitrary or made without using reason in the current
instance. As a result, there has been no breach of fundamental rights.

2. WHETHER THERE IS ANY VIOLATION OR ENCROACHMENT OF

FUNDAMENTAL RIGHT OR NOT?
The respondents contend that the government's policy choice to create M.I.C. does not violate
Art. 14, 21, or the Rule of Law. The right to healthy environment enshrined under Art. 21 is not
violated by this decision as proper measures for environment protection and sustainable
development have been taken.

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ARGUMENTS ADVANCED

1. WHETHER THE PIL FILED BEFORE THE HON’BLE HIGH COURT OF

KERELA UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA IS
MAINTAINABLE OR NOT?

1. The Respondent contends the instant petitions filed under Art.226 of the Constitution of
the India before this Hon’ble High Court. The question in this issue is regarding the
maintainability of the PIL filed by petitioner. The above PIL is not maintainable on the
following grounds.

1.1 Non maintainability of PIL filed by PUEP

2. It is humbly submitted by the respondent, that the court has held in various cases that it
can only intervene in accordance with Article 226's jurisdiction if there has been a breach
of fundamental rights. The petitioner lacks locus standi and is just making a scholastic
objection. Nobody has been uprooted, transformation has not been forced, and the
environment has not been destroyed. Therefore, the Petitioner cannot request a remedy if
there is no damnum.
3. Additionally, the National Green Tribunal, 2010 law's passage gave the system of forest
control a new dimension. The Chemical Regulation Act, 2011, the core of the multiple
judgements in the Godavarman2 case, is expressly empowered to be heard by the
National Green Tribunal. The petitioner does not need to waste this Hon'ble Court's time
when an authority has been established particularly to hear the matters related to the
nature of this writ petition.

2
T.N. Godavarman Thirumulpad vs Union Of India, AIR 1997 SC 1228.

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1.2 Alternative remedy exhausted or not-

4. Due to Apex Court judgement in L. Chandra Kumar v. Union of India3, AIR 1997 SC
1125 the tribunals are competent to hear this particular case. Alternative remedies are not
allowed unless the official or authority to take the action in issue has no jurisdiction at all.
However, the maintainability of the filed PIL is called into doubt because there is a
competent body to hear this specific matter.
5. In Asst. Collector of Central Excise v. Jainson Hosiery4, this Hon'ble Apex Court ruled
that if there is an alternative legislative remedy, the court should not become involved
unless the alternative remedy is overly drawn out or cannot provide timely relief.
6. Therefore, the respondents respectfully contend that the current PIL cannot be maintained
because an alternative remedy has not been used up. For the aforementioned grounds, the
respondents contend that the current PIL cannot be maintained.

2. WHETHER THERE IS ANY VIOLATION OR ENCROACHMENT OF

FUNDAMENTAL RIGHTS OR NOT?

7. It is respectfully submitted by the respondent that there is no violation of the right to

enjoyment of pollution free water and air for full enjoyment of life as enshrined
under Art. 215. Furthermore, it is claimed that the respondent has taken all necessary
steps to safeguard the environment and promote sustainable growth.
8. The government recognizes the significance of the actions and the repercussions, which
have been kept in mind throughout the policy-making process, as the Hon'ble Apex Court
decided in Hinch Lal Tiwari v. Kamala Devi and Others6.

2.1 Whether the environment clearance is valid

9. The respondent humbly contends that the environmental clearance complies fully with
the Environmental Protection Act of 19867 and that none of its provisions have been
violated. The respondent has established strict safeguard procedures to protect the
environment while concurrently contributing to the economic growth and development of

3
L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
4
Assistant Collector of Central Excise v. Jainson Hosiery Industries, 1979 4 SCC 22.
5
Article 21, Constitution of India, 1949.
6 Hinch Lal Tiwari v. Kamala Devi and others, AIR 2001 SC 3215.
7
The Environment (protection) Act, 1986.

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the nation since they are well aware of the concerns that have grown in the minds of the
residents of the immediate region.
10. In M.C. Mehta v. Union of India8, it was held that by adhering to specific environmental
protection standards, development activity may be conducted without harming the
environment. In such case, growth must continue since it is imperative to create
industries, irrigation systems, and power projects in order to increase job prospects and
generate cash, among other things.

2.2 Employment Opportunities

11. It is humbly submitted by respondent that it is the responsibility of the state to give its
citizens access to work possibilities and economic empowerment. The manufacturing of
M.I.C in factories aids in economic growth as well. The wall was built with the intention
of safeguarding people's means of subsistence, but it also provides indigenous people
living in Kerala and neighboring states with work possibilities.

2.3. Right to sustainable development adhered while in production of M.I.C

12. According to article 21, the right to sustainable development is a basic right and should
be seen as an essential aspect of existence. The respondent claims that in formulating the
policy for MIC production, the notion of sustainable development has been scrupulously
adhered to. Priorities have historically been balanced by the courts while determining
environmental cases. India is a developing nation; hence certain environmental sacrifices
are thought to be required to safeguard the welfare of future generations. Sustainable
development is the name given to this moral mashup. As a result, the respondent
respectfully claims that the government's policy does not contravene Article 21 of the
Indian Constitution.

2.4. Whether Art. 14 of Indian Constitution is violated or not.

13. It is respectfully submitted that there is no violation of Art. 14 of the Constitution of

India, the policy decision was not made arbitrarily. The choice was made in the interests
of economic growth and in accordance with a number of legal regulations.

8
M.C. Mehta v. Union of India, AIR 1987 SC 965.

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14. The response respectfully claims that the M.I.C. production is grounded in reason. It is
evident that the Environmental Protection Agency form was submitted on July 19, 2017.
The creation of M.I.C. is the most practical alternative in the mentioned scenario. The
respondent's counsel respectfully contended in front of this Hon’ble Court that the
government's policy choice is grounded on logic, necessity, and science and is thus not
arbitrary and does not go against the requirements of Article 14 of the Indian
Constitution.

2.5. Proper technique and equipments used for production of M.I.C

15. In accordance with Section 16 of the Hazardous and Other Wastes Rules, 2016,
management follows the required storage and removal facility requirements for
hazardous and other wastes and takes all necessary safeguards. Three 68000-liter Mic
storage tanks, designated E610, E611 and E619, are used to store the methyl isocyanate
that Kerala Chemicals Limited manufactures. No tank may be filled to more than 50% of
its capacity, and each tank is pressurised with inert nitrogen gas as a safety measure. Each
tank's liquid M.I.C might be pushed out thanks to the pressurisation. Each tank could
hold no more than 30 tonnes of liquid M.I.C. according to the regulations. However, just
25 tonnes of M.I.C. have been filled by management.

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PRAYER

Wherefore, in the light of the facts presented, arguments advanced and authorities cited, the
Respondent humbly submit that the Hon’ble High Court of Kerala be pleased to adjudge and
declare that:

1. The present PIL is not maintainable under Article 226 as the NGT has neither exercised
excessive jurisdiction nor is there any error apparent on the face of the record.

2. The PIL should also be dismissed as the petitioner did not exhaust the alternative remedies
available to him.

And pass any other Order, Direction, or Relief that it may deem fit in the Best

Interests of Justice, Fairness, Equity and Good Conscience.

All of which is most humbly and respectfully submitted.

Sd/-

(Counsel for Respondent)

MEMORIAL FOR RESPONDENTS