LAW DEPARTMENT ACADEMIC MOOT, 2023

Moot Proposition:1

A Submission for the Paper

ENVIRONMENTAL AND WILDLIFE PROTECTION LAWS

Submitted to:
Ms.Dipti Bansal

Submitted by:
Rishita
141/21
Semester 4
LLB

MEMORIAL ON BEHALF OF RESPONDENT 1




 IN THE HON’BLE NATIONAL GREEN TRIBUNAL, MAHARASHTRA

SUIT NO. ___/20..

IN THE MATTER OF

NGO……………………………………………….……………………PETITIONER
V.

UNION OF INDIA……………….……………………………….…RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT 2

 TABLE OF CONTENTS

TOPIC PAGE NUMBER

List of Abbreviations 4
Index of Authorities 5
Statement of Jurisdiction 6
Statement of Facts 7
Issues Raised 8
Summary of Arguments 9
Arguments Advanced 10
Prayer 17

MEMORIAL ON BEHALF OF RESPONDENT 3

 LIST OF ABBREVIATIONS

Sec. Section
& And
Hon’ble Honourable
Ltd. Limited
S.C. The Supreme Court of India
v. Versus
Ors. Others

MEMORIAL ON BEHALF OF RESPONDENT 4

 INDEX OF AUTHORITIES

BOOKS
• P.S. Jaswal & NishthaJaswal : Environmental Law
• R.G. Chaturvedi& M.M. Chaturvedi : Law of Protection on Environment and Prevention of
Pollution

WEBSITES
• http://www.findlaw.com
• http://indiankanoon.org
• http://www.manupatra.co.in/AdvancedLegalSearch.aspx
• http://www.scconline.com

STATUTES
• The Rio Conference, 1992.
• The Railways Act, 1989
• The Environment (Protection) Act, 1986

CASE LAWS
• Bombay Environmental Action Group & Ors. Vs. The State of Maharashtra and Ors.
• Ganv Bhavancho Ekvott v. South Western Railways
• Goa Foundation v. Konkan Railway Corp.
• Indore Development Authority vs. Manoharlal
• Martin Burn Ltd. v. Corporation of Calcutta
• M.C. Mehta vs. Kamal Nath
• The National High Speed Rail Corporation Ltd. v. State of Maharashtra and Ors.

MEMORIAL ON BEHALF OF RESPONDENT 5

 STATEMENT OF JURISDICTION

The respondent humbly submits this memorandum before the National Green Tribunal under sec.
14 of The National Green Tribunal Act, 2010 which says

(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.
(2) The Tribunal shall hear the disputes arising from the questions referred to in sub- section (1)
and settle such disputes and pass order thereon.
(3) No application for adjudication of dispute under this section shall be entertained by the
Tribunal unless it is made within a period of six months from the date on which the cause of action
for such dispute first arose:
Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause
from filing the application within the said period, allow it to be filed within a further period not
exceeding sixty days.

MEMORIAL ON BEHALF OF RESPONDENT 6




 STATEMENT OF FACTS

1. Due to urbanisation, Private vehicles in big numbers are being added every year thereby rising
pollution levels which is affecting public health.
2. Two major commercial cities are on the western side of the country, Mumbai and Ahmadabad.
A lot of business takes place between these two cities. There is good connectivity by all existing
modes of transport.
3. To further boost the connectivity and welcome foreign investments, the Union of India has
come out with an ambitious plan of linking the two cities with Bullet Train, with Maglev
technology.
4. Maglev technology uses Magnetic levitation technique for achieving great speeds and uses
lesser electricity compared to the conventional electric trains.
5. Though a costly project, it is going to considerably reduce the travel time between the two cities
and give an infrastructure boost to the slowing down economy and generate good employment
opportunities.
6. Mumbai city is located near the sea and has good number of mangroves near to the coastal,
estuary and creek areas.
7. In the wake of implementing the Bullet Train, to minimise the cost of land acquisition and
rehabilitation, the Govt. thought fit to use nearly 15 hectares of mangrove lands, which will lead
to cutting around 50,000 mangrove trees, for chalking out the route for Bullet Train.
8. A section of environmentally spirited citizens along with fishermen are not happy with the
decision of identification of the mangrove area. They allege that clearing of mangroves will
hamper the marine life and cause massive environmental imbalance.
9. One NGO, has approached the National Environment Tribunal requesting the Tribunal to take
the cognisance and give a stay on the proposed project of Bullet Train.

MEMORIAL ON BEHALF OF RESPONDENT 7

 ISSUES RAISED

ISSUE 1:
Whether The Railways Act, 1989 overrides The Environment (Protection) Act, 1986 or not?

ISSUE 2:
Whether this project of Bullet Train is hazardous for the environment or not?

ISSUE 3:
Whether this petition is maintainable or not?

MEMORIAL ON BEHALF OF RESPONDENT 8

 SUMMARY OF ARGUMENTS

ISSUE 1:
Whether The Railways Act, 1989 overrides The Environment (Protection) Act, 1986 or not?
It is humbly submitted before this hon’ble court that sec. 11 of the Railways Act is an overriding
provision and that keeping in mind that the Railways Act starts with a non-obstante clause, it cannot
be said to be subject to the Environment Protection Act, since the intention of the Legislature is
quite clear in this regard when considered in the light of the fact that when the Parliament enacted
the Railways Act in 1989, the Environment Protection Act was already in place and the Parliament
was well aware of what it had enacted a couple of years before.

ISSUE 2:
Whether this project of Bullet Train is hazardous for the environment or not?
It is humbly contended before this Hon’ble court that this project will not only cover the distance of
509 kms in about 1/3rd of the time it presently takes and be a convenient par excellence for the rail
passengers of the two cities and the two States, increasing connectivity between the busy trade
corridor of Ahmedabad and Mumbai which will increase the economic productivity, running on
electricity not only saving valuable cost on conventional fuel but also generating employment for
thousands of people in the construction phase and during the operations and maintenance phase.

ISSUE 3:
Whether this petition is maintainable or not?
It is humbly submitted before this court that this PIL is not maintainable and that the respondent
should be granted the permission to cut the mangrove trees as this project is in national interest and
for greater good of the people.

MEMORIAL ON BEHALF OF RESPONDENT 9

 ARGUMENTS ADVANCED

ISSUE 1:
Whether The Railways Act, 1989 overrides The Environment (Protection) Act, 1986 or not?

It is humbly submitted before this hon’ble court that sec. 11 of the Railways Act is an overriding
provision and that keeping in mind that the Railways Act starts with a non-obstante clause, it cannot
be said to be subject to the Environment Protection Act.

Sec. 11 of The Railways Act, 1989 states:

Power of railway administrations to execute all necessary works.—Notwithstanding anything
contained in any other law for the time being in force, but subject to the provisions of this Act and
the provisions of any law for the acquisition of land for a public purpose or for companies, and
subject also, in the case of a non-Government railway, to the provisions of any contract between the
non-Government railway and the Central Government, a railway administration may, for the
purposes of constructing or maintaining a railway—
(a) make or construct in or upon, across, under or over any lands, or any streets, hills, valleys,
roads, railway, tramways, or any rivers, canals, brooks, streams or other waters, or any drains,
water-pipes, gas-pipes, oil-pipes, sewers, electric supply lines, or telegraph lines, such temporary
or permanent inclined-planes, bridges, tunnels, culverts, embankments, adequcts, bridges, roads,
lines of rail, ways, passages, conduits, drains, piers, cuttings and fences, in-take wells, tube wells,
dams, river training and protection works as it thinks proper;
(b) alter the course of any rivers, brooks, streams or other water courses, for the purpose of
constructing and maintaining tunnels, bridges, passages or other works over or under them and
divert or alter either temporarily or permanently, the course of any rivers, brooks, streams or other
water courses or any roads, streets or ways, or raise or sink the level thereof, in order to carry them
more conveniently over or under or by the side of the railway;
(c) make drains or conduits into, through or under any lands adjoining the railway for the purpose
of conveying water from or to the railway;
(d) erect and construct such houses, warehouses, offices and other buildings, and such yards,
stations, wharves, engines, machinery apparatus and other works and conveniences as the railway
administration thinks proper;

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 [(da) developing any railway land for commercial use;]

(e) alter, repair or discontinue such buildings, works and conveniences as aforesaid or any of
them and substitute others in their stead;
(f) erect, operate, maintain or repair any telegraph and telephone lines in connection with the
working of the railway;
(g) erect, operate, maintain or repair any electric traction equipment, power supply and distribution
installation in connection with the working of the railway; and
(h) do all other acts necessary for making, maintaining, altering or repairing and using the railway.

In the case of Ganv Bhavancho Ekvott v. South Western Railways1, Hon’ble Bombay High Court
held that Section 11 of the Railways Act is an overriding provision and that keeping in mind that the
Railways Act starts with a non-obstante clause, it cannot be said to be subject to the Environment
Protection Act, since the intention of the Legislature is quite clear in this regard when considered in
the light of the fact that when the Parliament enacted the Railways Act in 1989, the Environment
Protection Act was already in place and the Parliament was well aware of what it had enacted a
couple of years before.

Moreover, in Goa Foundation v. Konkan Railway Corp.2, the Court had held that clearance under
the Environment Protection Act is not required even though the railway line passes over rivers,
creeks etc.

In the case of The National High Speed Rail Corporation Ltd. v. State of Maharashtra and Ors.3,
the Court observed that a clear reading of Section 11 of the Railways Act, would reveal that it
confers power, authority and competence on a railway administration, for the purposes of
constructing or maintaining a railway, to make or construct in or upon, across, under or over any
lands.

It is contended that we can not ignore the non-obstante clause of sec. 11 of The Railways Act under
the light of Environment Act as The Hon’ble Supreme Court in the case of Martin Burn Ltd. v.

1 PILWP NO. 15-2021 Judgment dated 3.8.2022 of High Court of Bombay at Goa
2 AIR 1992 Bom 471
3 Writ Petition No. 442 of 2020

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Corporation of Calcutta4, said that “A result flowing from a statutory provision is never an evil. A
court has no power to ignore a provision to relieve what is considered a distress resulting from its
operation. A statute must of course be given effect to whether a court likes the result or not.”

The same has been considered and approved by a constitution bench of The Hon’ble Supreme Court
in Indore Development Authority vs. Manoharlal5 by referring to the legal maxim “dura lex sed
lex” meaning that “the law is hard but it is the law”.

Lastly, noting that power having been conferred by Section 11, clause (b) on a railway
administration to even change the course of a river, brook, steam, or other water courses, read in the
light of “do all other acts necessary” in clause (h), the same leaves no manner of doubt with regard
to the intention the Parliament had in mind while enacting Section 11.

Hence, the Railways Act, 1989 does override the Environment Protection Act, 1986.

4 AIR 1966 SC 529

5 (2020) 8 SCC 129
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 ISSUE 2:
Whether this project of Bullet Train is hazardous for the environment or not?

It is humbly submitted to this Hon’ble court that the Project is India's first high speed or bullet train
project. The Project will connect the cities of Mumbai and Ahmedabad and will have an alignment
of 509 km. Out of the said alignment, the area falling in the Mangrove land is 15 hectares leading to
cutting of around 50,000 mangrove trees for chalking out the route for Bullet train.

It is submitted before the Hon’ble Court that there are various advantages of the Project connecting
the cities of Mumbai and Ahmedabad, some of which are summarised as under:
• Increase in connectivity in the busy corridor of Ahmedabad and Mumbai: Bullet train would
increase connectivity in the busy trade corridor of Ahmedabad and Mumbai which in turn
increases economic productivity.
• International funding: The project will attract foreign investments from countries like Japan.
• Reduction in travel time: Bullet Train will reduce travel time between Ahmedabad and Mumbai
upto 1/3rd of the time it currently takes. This is the first bullet train project conceptualised and
being executed in India.
• Globally accepted mode of transport: Bullet Train is a fast, safe, punctual, cost-effective and
viable mode of transport in over 20 countries including China, United Kingdom, France,
Germany, Japan, Korea, Taiwan and is under development in another 14 countries including
Russia, Qatar, South Africa, Brazil, Mexico etc. Thus, the Bullet train is a proven efficient,
environment friendly, feasible, viable and globally accepted mode of transport.
• Generation of employment: The project will also generate employment for about thousands of
people in construction phase and operations and maintenance, a lot of indirect jobs are also
expected to be generated.
• Reduction in pollution & carbon footprint: Bullet train runs on electricity and hence saves
valuable cost on conventional fuel which in turn reduces pollution and carbon footprint.
• Uses Maglev technology: Maglev uses magnetic levitation technique for achieving great speeds
and uses lesser electricity compared to the conventional electric trains.

It is the contended that the Project is as such of vital importance as it will not only reduce the
journey time between important cities like Mumbai and Ahmedabad but will reduce the costs of
travelling, reduce the carbon footprints, the pollution being caused by vehicular traffic, and will also
MEMORIAL ON BEHALF OF RESPONDENT 13

be a fast connectivity measure between the two cities. The Project is being envisaged as a pioneer
project for bullet trains in India.

In the case of Bombay Environmental Action Group & Ors. Vs. The State of Maharashtra and
Ors.6, it has been said that a ban on cutting/felling/destruction of forests was imposed thereby with
a window being kept open for cases where the Court is satisfied that such cutting/felling/destruction
of forests is for national good or national interest.

Considering that the mangroves fall in the category of forests, we seek permission to carry out the
project work. The respondent would conduct afforestation as will be directed by the Competent
Authority, and will plant as much trees as will be directed by the Competent Authority for the tress
cut/felled for the purpose of laying down the alignment of the High Speed Rail through the
mangroves area.

It is contended that the court should apply the public trust doctrine as the project is not only in
public interest but also for public good.

Thus, this project of Bullet Train is not hazardous for the environment.

6 PIL No. 87 of 2006

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 ISSUE 3:
Whether this petition is maintainable or not?

It is humbly submitted before this court that this petition is not maintainable and that the respondent
should be granted the permission to cut the mangrove trees as this project is in national interest and
for greater good of the people.

It cannot be said that the environment has to be protected for its preservation but at the same time
development cannot be stopped altogether. There has to be created harmony between the two
competing interests and that is what is sought to be achieved by insisting on compliances of
stringent conditions.

It is contended that the court should apply the public trust doctrine as the project is not only in
public interest but also for public good. The Hon’ble Supreme Court in the case of M.C. Mehta vs.
Kamal Nath7, dealt with the Public Trust Doctrine in great detail. The Court observed as under:
“We are fully aware, that the issues presented in this case illustrate the classic struggle between
those members of the public who would preserve our rivers, forests, parks and open lands in their
pristine purity and those charged with administrative responsibilities, who, under the pressures of
the changing needs of an increasingly complex society, find it necessary to encroach to some extent
upon open lands heretofore considered inviolate to change. The resolution of this conflict in any
given case is for the legislature and not the court. If there is a law made by Parliament or the State
Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of
its powers of judicial review under the Constitution. But in the absence of any legislation, the
executive acting under the doctrine of public trust cannot abdicate the natural resources and
convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory
of the natural resources, the environment and the ecosystems of our country cannot be permitted to
be eroded for private, commercial or any other use unless the courts find it necessary, in good faith,
for the public good and in public interest to encroach upon the said resources."

Similarly, the concept of "sustainable development" has been a matter of judicial expositions by the
Supreme Court. It has been consistently observed that while economic development should not be

7 (1997) 1 SCC 388

MEMORIAL ON BEHALF OF RESPONDENT 15

allowed to take place at the cost of ecology or by causing widespread environment destruction and
violation, at the same time the necessity to preserve ecology and environment should not hamper
economic and other development. Both development and environment must go hand in hand, in
other words, there should not be development at the cost of environment and vice versa, but there
should be development while taking due care and ensuring the protection of environment.

‘Sustainable development’ means ‘a development which can be sustained by nature with or without
mitigation’. In other words, it is to maintain delicate balance between industrialisation and ecology.
While development of industry is essential for the growth of economy, at the same time, the
environment and the ecosystem are required to be protected. The pollution created as a consequence
of development must not exceed the carrying capacity of ecosystem. The Courts in various
judgments have developed the basic and essential features of sustainable development. In order to
protect sustainable development, it is necessary to implement and enforce some of its main
components and ingredients such as - Precautionary Principle, Polluter Pays and Public Trust
Doctrine. We can trace foundation of these ingredients in number of judgments delivered by this
Court and the High Courts after the Rio Conference, 1992.

Sustainable use of natural resources should essentially be based on maintaining a balance between
development and ecosystem. Coordinated efforts of all concerned would be required to solve the
problem of ecological crisis and pollution. Unless we adopt an approach of sustainable use, the
problem of environmental degradation cannot be solved.

Therefore, this petition is not maintainable.

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 PRAYER

For the foregoing reasons, the petitioner respectfully requests to allow the petition and declare that:

1. The Railway Act of 1989 does override The Environment (Protection) Act,1986.
2. This Railway project is not hazardous for the environment and is indeed beneficial for the
country.
3. The petition is not maintainable.

And pass such order keeping in view the principle of equity and good conscience.

Respectfully Submitted
COUNSEL FOR THE PETITIONER

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