BHARATI VIDYAPEETH NEW LAW COLLEGE, PUNE

PRACTICAL PAPER-III

MOOT COURT, PRE-TRIAL PREPARATION AND

PARTICIPATION IN TRIAL PROCEEDINGS

ASSIGNMENT ON MOOT COURT MEMORIAL

ON BEHALF OF THE RESPONDENT

NAME- Akriti Sharma

CLASS- B.B.A. LL.B. 5TH YEAR (IX) SEM
ROLL NO.- B-44
 B-44

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

Table of Contents
LIST OF ABBREVIATIONS...........................................................................................................3

STATEMENT OF JURISDICTION.................................................................................................5

STATEMENT OF FACTS...............................................................................................................6

STATEMENT OF ISSUES..............................................................................................................7

I. Whether The PIL filed before the Hon’ble High Court of Kerela under Article 226 of the
Constitution of India maintainable or not?................................................................................7

II. Whether the Fundamental rights are violated?....................................................................8

ARGUMENTS ADVANCED..........................................................................................................8

Whether the PIL filed u/A 226 of The Constitution of India is Maintainable or not?..............8

Whether the right to healthy environment is violated or not?...................................................8

Whether the environment clearance is valid or not?.................................................................9

Whether the present writ petition has been filed prematurely or not?.....................................10

Whether the Fundamental rights are violated or not?..............................................................10

PRAYER.........................................................................................................................................12
 LIST OF 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
 Table of Authorities

Cases
Assistant Collector of Central Excise v. Jainson Hosiery Industries, 1979 4 SCC..........................9
Hinch Lal Tiwari v. Kamala Devi and 11 others AIR 2001 SC 3215..............................................8
Hinch Lal Tiwari v. Kamala Devi and others, AIR 2001 SC 3215..................................................8
L. Chandra Kumar v. Union of India, AIR 1997 SC 1125...............................................................9
M.C. Mehta v. Union of India AIR 1987 SC 965.............................................................................8
M.C. Mehta v. Union of India, AIR 1987 SC 965............................................................................8
T.N. Godavarman Thirumulpad vs Union Of India, AIR 1997 SC 1228.........................................9

Statutes
Environment Protection Act, 1986....................................................................................................8

Constitutional Provisions
Art.14. Constitution of India, 1949...................................................................................................9
Article 21. Constitution of India, 1949.............................................................................................8
Article 226 in The Constitution Of India 1949- Power of High Courts to issue certain writs.........4
 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.
 STATEMENT OF FACTS

● The management of Kerala Chemicals limited, a State-owned chemical factory which was
running in loss, decided to manufacture a new product. Methyl Iso Cyanate (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 Cyanate (M.I.C) in a new plant installed
within the factory site.

● There was an expert-report to the effect that if Methyl Iso Cyanate was produced
negligently, it would be highly hazardous to human beings and would create serious
environmental problems.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.

● 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 IsoCyanate.

● The management contended that their action was in public interest and they have taken
adequate precaution to prevent any accidents. They also contended 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.
 STATEMENT OF ISSUES

I.

Whether The PIL filed before the Hon’ble High Court of Kerela under Article 226 of the
Constitution of India maintainable or not?

II.

Whether the Fundamental rights are violated?

 ARGUMENTS ADVANCED

Whether the PIL filed u/A 226 of The Constitution of India is Maintainable or not?

A Public Interest Litigation can be filed under Article 226 of the Constitution for enforcement of
Fundamental Rights, as guaranteed by part III of the Constitution. In the present case, no
Fundamental Rights have been violated by the state, 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. As a result, there was no violation of
fundamental rights.

Whether the right to healthy environment is violated or not?

According to the respondent, there is no violation of the right to a healthy environment as stated
in Art. 21.2 Furthermore, it is claimed that the respondent has taken all necessary steps to
safeguard the environment and promote sustainable growth. The government understands the
significance of the actions and the repercussions, which have been taken into consideration
throughout the policy making process, as the Hon’ble Apex Court declared in Hinch Lal Tiwari v.
Kamala Devi and 11 others.3

Whether the environment clearance is valid or not?

The respondent humbly asserts that the environmental clearance complies fully with the
Environmental Protection Act of 19864 and that none of its provisions have been broken. The
respondent has established strict safeguard procedures to protect the environment while
concurrently contributing to the economic growth and development of the nation since they are
well aware of the concerns that have grown in the minds of the residents of the immediate region.
In M.C. Mehta v. Union of India, it was held that development activities may continue without
harming the environment if appropriate environmental protection measures are taken. In such
case, growth must continue since one cannot lose sight of the need for development of industries,
irrigation resources and power projects including the need to improve employment opportunities
and the generation of revenue.5

Provides Employment opportunities

The respondent submits that it is the responsibility of the state to give its citizens access to
employment opportunities and economic empowerment. The manufacturing of M.I.C.s in
factories aids in economic growth as well.

2
Article 21, Constitution of India, 1949.
3
Hinch Lal Tiwari v. Kamala Devi and 11 others AIR 2001 SC 3215.
4
Environment Protection Act, 1986.
5
M.C. Mehta v. Union of India AIR 1987 SC 965.
The wall was built with the intention of safeguarding people’s means of subsistence, but it also
provides indigenous people living in Kerela and neighbouring states with work possibilities.

The Principle of Sustainable Development is Adhered to in the production of M.I.C

According to Art. 21, the right to sustainable development is a fundamental right and should be
seen as an essential aspect of existence. The respondent claims that in formulating the policy
M.I.C production, the notion of sustainable development has been closely 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. This ethical mix is termed as sustainable development. As a
result, the respondent respectfully submits that the government’s policy does not violate Art. 14 6
or Art. 21 of the Indian Constitution.

Whether the present writ petition has been filed prematurely or not?

According to the respondent, the court has ruled that it can only intervene in accordance with
Article 226's jurisdiction if there has been a violation of fundamental rights. The petitioner lacks
locus standi and is just making a scholarly objection. Nobody has been displaced, integration has
not been forced, and the environment has not been harmed. Therefore, the Petitioner cannot
request a remedy if there is no damnus. Additionally, the National Green Tribunal, 2010 has
added a new dimension to the existing forest governance structure. The Chemical Regulation Act,
2011, which serves as the foundation for the multiple judgements in the Godavarman case 7, 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.

Alternative remedy has not been exhausted

The tribunals are qualified to hear this particular case Due to L. Chandra Kumar v. Union of
India.8 Alternative remedies are not allowed unless the officer or authority to conduct the action in
question has no jurisdiction at all. However, the existence of a competent body to hear this
particular matter raises doubts about the viability of the filed writ petition. In Asst. Collector of
Central Excise v. Jainson Hosiery9, this Hon'ble Apex Court held 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 prompt relief. Because an alternative remedy has not been pursued,
6
Art.14. Constitution of India, 1949.
7
T.N. Godavarman Thirumulpad vs Union Of India, AIR 1997 SC 1228.
8
L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
9
Assistant Collector of Central Excise v. Jainson Hosiery Industries, 1979 4 SCC 22.
the respondents respectfully submits that the current writ petition cannot be maintained. The
respondents contend that the aforementioned factors make the current writ petition
unmaintainable.

Whether the Fundamental rights are violated or not?

The respondents contend that the government's policy decision to create M.I.C. does not violate A
rt. 14, 21, or the Rule of Law.

Whether or not the policy decision has been framed arbitrarily

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

The Policy Decision has been framed based on the rule of reason

The respondent humbly submits that the M.I.C. production is based on strict 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 described scenario. The respondent's attorney
respectfully submitted before this Honourable Court that the government's policy decision is
based on logic, necessity, and scientific study and is thus not arbitrary and does not violate Article
14 of the Indian Constitution.

Proper technique and equipment used for production of M.I.C

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 68000liter 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. The pressurization allowed liquid M.I.C to be pumped out of
each tank. 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.
 PRAYER

Therefore, 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 relief, that this Hon’ble High Court of Kerala may deem fit and proper in the
interest of justice, equity and good conscience. For this act of kindness, the Respondent shall duty
bound forever pray

Sd/-
(Counsel for respondents)