KES JAYANTILAL H PATEL LAW COLLEGE MOOT COURT

EXAMINATIONS

IN THE HIGH COURT OF NAMEK

DARPAN FOUNDATION

(PETITIONER)

V/S

RIVERDALE CONSTRUCTION COMPANY LIMITED

(RESPONDENT)

ON SUBMISSION TO THE HIGH COURT OF NAMEK

MEMORIAL FOR THE RESPONDENTS

 TABLE OF CONTENTS

1) INDEX OF AUTHORITES
i) STATUTES
ii) BOOKS REFERRED
iii) UNION OF INDIA NOTIFICATIONS
iv) WEBSITES VISITED
2) STATEMENT OF JUSRISDICTION
3) STATEMENTS OF FACTS
4) ISSUES INVLOVED
5) SUMMARY OF ARGUMENTS
6) ARGUMENTS ADVANCED
7) PRAYER
 INDEX OF AUTHORITIES

1) STATUTES
a. ENVIRONMENT PROTECTION ACT, 1986
b. LAND ACQUISITION ACT, 2015 (AMENDED)

2) BOOKS REFERRED

a. DR. N.V. PARANJAPE – PUBLIC INTEREST LITIGATILAON, LEGAL AID

& SERVICES, LOK ADALATS & PARA LEGAL SERVICES
b. V.N. SHUKLA - CONSTITUTION OF INDIA
c. ARMIN ROSENCRANZ & SHYAM DIVAN – ENVIRONMENTAL LAWS
AND POLICY IN INDIA.

3) UNION OF INDIA NOTIFICATIONS

a. S.O. 804(E) DATED 14.03.2017

b. S.O. 1533 DATED 14.09.2006

4) WEBSITES VISITED

a. envfor.nic.in
b. www.legalserviceindia.com
c. www.indiankanoon.org
 STATEMENT OF JURISDICTION

DARPAN FOUNDATION …….PETITIONER

RIVERDALE CONSTRUCTION COMPANY LIMITED …….RESPONDENT

The jurisdiction of this honourable supreme court has been invoked under Article 226 of the
constitution . The respondents respectfully submit to this jurisdiction invoked by the petitioner.
 STATEMENT OF FACTS

 Arabasta is a hill station having an altitude of 1045 metres on the banks of the river
Mahanadi in the state of Namek.
 Arabasta was declared an eco-sensitive zone (ESZ) by Benin government by the
notification dated 01.04.2016 under Environment Protection Act and the rules made
there under.
 Arabasta is spread over 10000 hectares of land laden with lush greenery of topical
trees.
 The forests in Arabasta triggers heavy rainfall which fills in dams and which in turn
provides precious water to the contiguous rain shadow area which is dependent on
this water as the substantial part of agrarian economy of the state thrives on this
source of water.
 Riverdale Construction Company Limited (Riverdale) started construction of a
planned township – ‘Tatvaa’.
 ‘Tatvaa’ is first such attempt in Benin by which Riverdale aims to bring life to the
hills in Arabasta and construct planned township.
 ‘Tatvaa’ is a project in which where there would be houses, villas, restaurants,
schools, colleges, hospitals, sport academies, hotels, and theme parks with state of art
infrastructure with modern amenities but within economical bufget.
 ‘Tatvaa’, when completed can house 1,00,000 people (around 30000 units). The entire
project is expected to be completed by 2022.
 The project comprises of four phases built on land over and around the hills in
Arabasta. Tatvaa Phase 1 is the first phase, the construction of which had already
commenced in early 2018.
 The construction of residential complexes, golf course, football academy, open
ground for sports and outdoor activities accommodating 10000 spectators, a very
large wellness centre, theme park of over 70 acres for tourists, organic plantation for
self-consumption, schools and three malls is continuing and the work of phase one is
almost 45% completed at the end of December 2018.
 The four phases requires almost 1000 acres of land.
 The entire project outlay for the four phases is around Rs. 13500 crores and it is
around Rs. 5000 crores for phase one. The expenditure of phase one includes initial
outlay on various counts in Arabasta area, such as steps taken for cinservarion of
natural resources and manmade heritage, protection of hill slopes, conservation of
existing water bodies, protecting natural springs, setting up sewageand effluent
treatment plans with segregation of solid wastes into bio degradable non-bio
degradable components, building several mini hydel power projects and establishing
enviro labs (Green labs) as permanent centres Arabasta for research in soil, moisture
retention, flora, fauna, vegetation and pollution prevention.
 The negotiations for land acquisition were undertaken with the bona fide residents, for
which monetary compensation was adequately and fully paid according to the market
value that existed when the land was acquired.
 The residents were also assured of jobs at Tatvaa construction site for semi-skilled
and unskilled labour.
 Riverdale took all such measures to fulfil its obligations as a part of its Corporate
Social Responsibility (CSR) by providing the residents and the locals of Arabasta
with i) water and electricity at very low rates, ii) sanitation and upgraded living
conditions, iii) free educations up to graduation for their children, iv) sill
improvement facilities and opportunities, v) employment in the agencies, services
coming up in the area and vi) workable opportunities to set up their own trades and
businesses in the area.
 Riverdale ensured that a Society will be established locally to ensure that these other
measures are taken continuously and Riverdale will provide adequate finance to such
Society as a CSR initiative with an undertaking given to this effect to the state.
 The Zonal Master Plan for Arabasta eco sensitive zone prepared by the state has
considered the Tatvaa project
 Social activists Veronica Lodge and Betty Cooper have filed a Public Interest
Litigation through Darpan Foundation (petitioners) against Riverdale for violating
environmental laws and rules and for illegal construction being carried out at Tatvaa.
 Darpan Foundation is leading the agitation of locals in Arabasta against the land
acquisition by Riverdale.
 Darpan Foundation is a NGO which was recently under investigations and scrutiny
for violation of Foreign Contribution Regulation Act (FCRA) and its FCRA license
was cancelled by the Government of Benin.
 The Environment Clearance for Tatvaa was issued on 15.03.2016 by the Environment
department of the State but not by the Central Government which is contended by the
petitioners to be the competent authority.
 The petitioners maintain that this was in violation of Environment Impact
Assessment.
 Th ongoing construction was commenced without prior Environment Clearance from
Central authorities.
 The State government and its department of Environment granted the clearance to
Riverdale.
 The court allowed an intervener through an intervention application by Mr. Crusader.
The intervener held the position that Tatvaa project is Part of the Benin Government
initiative and it is in line with the assurances given by the Benin Government for the
development of Arabasta hilly region that remained underdeveloped for decades.
 The assurances were given by the First Minister, the head of the ministers in Benin, in
the People’s House of Benin in response to which a private member’s bill for the
development of Namek was withdrawn.
 The private member represented the Arabasta constituency in 2009-16. In that bill,
developing township like Tatvaa was included as one of the provisions.
 The Intervener therefore held that Tatvaa project is a culminations of the demands of
the people of Arabasta and assurances given by the Government of Benin and hence it
is legal.
 STATEMENT OF ISSUES

1. Whether the petitioners have locus to file the PIL.

2. Whether the filing of PIL is barred due to undue delay.
3. Whether there has been violation of fundamental rights enshrined in the constitution.
4. Whether assurances given by the First Minister of Benin override law.
5. Whether the ongoing construction of Tatvaa be halted.
6. Whether Riverdale should be asked to restore the environment as it was on the date of
construction of the project.
7. Whether Riverdale be compelled to pay compensation to the residents of Arabasta.
8. Whether the provisions of Environment Protection Act are violated.
9. Whether post facto approval can be granted to Tatvaa and if granted, whether it is
legal.
10. Whether criminal liabilities can be imputed to the Directors of Riverdale and public
servants for unlawfully assisting Riverdale.
 SUMAMRY OF ARGUMENTS

1) Whether petitioners have locus to file PIL.

It is contended that the petitioners don’t have locus, for it can be reasonably established that
petitioners have personal motives for filing this PIL on the grounds of their public perception
being damaged as a result of their FCRA license being cancelled.

2) Whether filing of PIL is barred due to undue delay.

The filing of PIL where there has been inordinate delay and there is no satisfactory
explanation to justify delay, the court has the power to refuse relief even though it being not a
rule of law but a rule of practice ( Ram Chandra v. State of Maharashtra).

3) Whether there has been any violation of fundamental rights enshrined in the constitution.

Article 21 encompasses wide variety of many other rights such as protection of wild life,
forests, lakes, flora & fauna, unpolluted air, protection from water pollution & more
importantly maintenance of ecological balance and ‘sustainable development’. In State of
H.P v. Umed Ram Sharma, it was held that Article 21 embraces not only physical existence
of life but also quality of life, and in this regard the counsel humbly submits that there has
been no violation of fundamental rights enshrined in the constitution.

4) Whether assurances given by First Minister of Benin Government override law.

It is elementary in a republic, governed by a rule of law, no one howsoever high or low is

above the law. Everyone is subjected to the law fully and completely as any other and First
Minister of Benin is no exception. But the assurances given by the First Minister of Benin
Government invoke the doctrine of promissory estoppel and hence the counsel maintains that
the First Minister and the Government of Benin are bounded to assurances given by the same.

5) Whether ongoing construction of Tatvaa project to be halted.

The construction for Tatvaa Phase 1 had already begun in early 2018 and by the end of 2018,
45% of it has been already completed. The total estimation for cost of Tatvaa phase 1 is Rs.
5000 crores & if the construction of the same was to be halted, Respondent no.1 would suffer
heavy losses along with the local residents of Arabasta who were assured of jobs at the
construction site. It is therefore pleaded before this court to allow the continuation of the
construction of Tatvaa Phase 1.

6) Whether Riverdale should be asked to restore the environment as it was on the date of
construction of the project.

In the counsel’s humble opinion, the construction of Tatvaa project has an aim to develop the
underdeveloped region of Arabasta and through this development improve the quality of life
for the residents of the same. Secondarily, Riverdale through Tatvaa has an objective of
conserving existing water bodies, protecting natural springs, setting up sewages and treatment
plants and has taken actions for the same. Hence, the counsel argues respectfully that there
should be no question for the restoration of the environment since the respondents Riverdale
have already taken actions to improve the environment sustainably.

7) Whether Riverdale is compelled to pay compensation to Arabasta residents.

The respondents through the negotiations with Arabasta residents for the acquisition of land
for Tatvaa have adequately compensated the residents according to the market value during
the time of the same. Moreover, the respondents ensured that the residents are given jobs &
guaranteed their children free education until their graduation. On the above given premise
we, the counsel, contend that the residents of Arabasta have been already compensated
adequately and no further compensation is needed.

8) Whether provisions of Environment Protection Act are violated.

The petitioners maintain that the clearance granted to the respondents by the state is illegal
and as a result in violation of the Environment Protection Act, but the legality of the state
level clearance is not impugned in our opinion as the phase 1 of Tatvaa falls under category B
of programs or activities which requires clearance from state environment impact assessment
authorities.

9) Whether post-facto approval can be granted to Tatvaa and if granted, whether it is legal.

In a notification by the Union of India bearing reference S.O. 804(E) dated 14.03.2017, the
Union of India made a provision for grant of ex post facto environmental clearance for
project proponents, who have commenced, continued or completed a project without
obtaining clearance under the Environment Protection Act and the Environment Impact
Assessment. This notification legitimizes post facto approvals as it is made under the
guidelines issued by the Supreme Court in Indian Council for Enviro-Legal Action Vs. Union
of India.

10) Whether criminal liabilities can be imputed to the Directors of Riverdale and public
servants for unlawfully assisting Riverdale.

The counsel humbly submits that no criminal liabilities be imputed to the Directors of
Riverdale and public servants for their allegedly impugned actions, be as it may, for they
acted bona fide. The facts of the matter prima facie establish the absence of malice.
 ARGUMENTS ADVANCED

1) Whether petitioners have locus to file PIL.

The petitioners Darpan Foundation have filed a PIL against the respondents for violating
environmental norms and for carrying out illegal construction. The respondents maintain that
the construction is not illegal and are is in conformity with environmental norms. The
petitioners are a NGO and were recently under scrutiny and investigations for violation of
Foreign Contribution Regulation Act ( FCRA ). And as a result of such investigations their
license of the same has been cancelled by the Benin Government. The petitioners were also
leading the agitation of locals in Arabasta against the land acquisition made by the
respondents. The counsel for the respondents insinuates from the above given facts that the
NGO recently tarnished its reputation as an organisation for social activism and hence is
trying to improve the same through the PIL which is filed in this honourable court. The
Supreme Court while issuing a warning against the possible misuse of PIL in Asiad Workers’
Case Inter Alia observed and pointed out that before entertaining a PIL petition the court
must be careful to see that a body of persons or member of public, who approaches the court
is acting bona fide and not for personal gain or private motive, or political motivation or any
other oblique considerations. The object of the public interest litigation is to protect the legal
or constitutional rights of the disadvantaged or oppressed groups or individuals to render
social and economic justice to them. In Ramjas Foundation v. Union of India, the Apex Court
held that a person coming to the court through a PIL petition should not only come with clean
hands but with clean heart and a clean object. On these grounds the respondents contend that
the petitioners through their conduct are acting with private motives or any other oblique
considerations , with the social and economic justice of the residents of Arabasta being a
secondary concern to them. On the issues of social and economic justice of Arabasta
residents, the respondents are providing them with jobs, education guarantees, development
of their locality, opportunities for economic advancements and other benefits through the
project of Tatvaa. The respondents thereby maintain that the petitioners don’t have locus to
file PIL.
2) Whether filing of PIL is barred due to undue delay.

Whenever there has been inordinate delay in filing the PIL and there is no satisfactory
explanation to justify delay, the court may refuse to grant relief. However it was established
in Ram Chandra v. State of Maharashtra, AIR 1974 SC 259 that, this is not a rule of law but a
rule of practice where the court has been given discretion to consider whether delay is
condonable depending on the facts and the circumstances of the case. The Supreme Court in
Ravindra Nath v. Union of India, AIR 1970 SC 470. Has observed that though article 32 is
itself a guaranteed right, but it does not follow from this that it should discard all principles of
law and grant relief to the petitioner even if there has been an inordinate delay in filing the
petition. Thus where a petition under Article 32 was filed in the Supreme Court in 1971 (
Amritlal v. Collector, AIR 1975 SC 538) challenging the promotion made in 1959, the
Supreme Court refused to entertain the writ on the ground of delay. Now the petitioners in
this matter have filed the PIL in the year of 2019 when the construction of the same had
begun in early 2018, any prudent person would insinuate that an organisation concerned with
the legality of a project would be set in motion for attaining relief against the said project as
soon as possible. In Dairy Rohtas Rights Rly. Co. v. Central Board of Direct Taxes AIR 1975
SC 1816, the Supreme Court reiterated its stand against delay in filing the PIL and held that if
the delay has not been satisfactorily explained by the petitioner, he would not have any right
to relief. Expressing a similar view, the Court in Lalithamma v. State AIR 1996 Kar 112, held
that delay in filing PIL would imply that the petition is not being filed bona fide and therefore
it ought to be rejected. Similarly, the petitioners in this matter filed the PIL after a period of
approximately a year and hence the counsel for respondents maintain that due to the fact that
Darpan Foundation was under scrutiny for FCRA violations and their FCRA license was
cancelled for the same and due to impugned delay in the filing of PIL, one can
circumstantially infer that the PIL is not being filed bona fide and therefore it ought to be
rejected.
3) Whether there has been any violation of fundamental rights enshrined in the Constitution.

It was established in landmark cases such as MC Mehta v Union of India, Subhash Kumar v.
State of Bihar, Narmada Bachao Andolan v. Union of India, Vellore Citizens Welfare Forum
v. Union of India and others that environment is one of the facets of the right to life
guaranteed under Article 21 of the Constitution. Environment is , therefore, a matter directly
under the Constitution and if the Court perceives any project or activity as harmful or
injurious to the environment it would feel obliged to step in. Right to unpolluted environment
and preservation and protection of nature’s gifts has also been conceded under Article 21.
This right encompasses wide variety of many other rights such as protection of wild life,
forests, lakes, ancient monuments, fauna-flora, unpolluted air, protection from noise, air and
water pollution, maintenance of ecological balance and sustainable development. The scope
of sustainable development covers human development while at the same time sustaining the
ability of natural systems. The desired result is a state of society where living conditions and
resource use continue to meet human needs without undermining the integrity and stability of
the natural system. In short, it is a form of development that meets the needs of the present
without compromising the ability of the future generations. The respondents through the
project of Tatvaa are providing the residents of Arabasta with employment, education,
economic opportunities, sanitation and upgraded living conditions, sill improvement facilities
among other things. Moreover, this project develops a hilly area which was mostly under-
developed with the construction of hospitals, villas, colleges, restaurants. And to top it the
respondents are taking all the steps which are required to conserve and maintain natural and
man made heritages and to achieve sustainable development. The respondents while
constructing phase one of the project in question have already took actions to protect hill
slopes, conserve existing water bodies, protecting natural springs, setting up sewage and
effluent treatment plants with segregation solid wastes into biodegradable and non-
biodegradable components, build several mini hydel power projects and establishing
Envirolabs (Greenlabs) as permanent centres in Arabasta for research in soil, moisture
retention, flora, fauna, vegetation and pollution prevention. The respondents therefore have
took all necessary prudent steps for sustainable development. The Supreme Court in State of
H.P. v. Umed Ram Sharma AIR 1986 SC847, held that the right to life in Article 21 “
embraces not only physical existence of life but also quality of life and for residents of hilly
areas, access to road is access to life itself. The counsel for respondents hence contend that
there is no violation of fundamental rights enshrined in the Constitution.
4) Whether assurances given by First Minister of Benin Government override law.

The principle of estoppel is a rule of evidence incorporated in Section 115 of the Indian
Evidence Act, 1872. The section reads as follows : When one person has, by his declaration,
act or omission, intentionally caused or permitted another person to believe such a thing to be
true and to act upon such beliefs, neither he nor his representative shall be allowed, in any
suit or proceeding between himself and such other person or his representative, to deny r truth
of that thing. The assurances given by the First Minister of Benin Government invokes the
doctrine of promissory estoppel in our humble opinion. The true principle of promissory
estoppel is where one party has by his words or conduct made to the other a clear and
unequivocal promise which is intended to create legal relations or effect a legal relationship
to arise in the future, knowing or intending that it would be acted upon by the other party to
whom the promise is made and it is in fact so acted upon by the party, the promise would be
necessary, in order to attract the applicability of the doctrine of promissory estoppel that the
promisee acting in reliance of that promise, should suffer any detriment. The only thing
necessary is that the promisee should have altered his position in reliance of the promise. The
evolution of this application of this doctrine prior to Anglo Afghan case did not apply against
the government. But the position altered with the case of Union of India v. Anglo Afghan
Agencies, the government of India announced certain concessions with regard to the import
certain raw materials in order to encourage export of woollen garments to Afghanistan.
Subsequently, only partial concessions and not full concessions were extended as announced.
The Supreme Court held that the Government was estopped by its promise. Thereafter the
courts have applied the doctrine of promissory estoppel even against the government.
Though, there are certain essentials to make any promise binding on the government such as
the promise should be within the ambit of law, there is an intention to enter into an legal
relationship and the other party must do an act in furtherance of that promise or is forbidden
to do anything. The First Minister of Benin in this matter gave assurances to the respondents
as a part of the Benin Government initiative for the development of the Arabasta hilly region
that remained underdeveloped for decades. The assurances are well within the ambit of law
and are conducive to Articles 38, 39, 42, 43, 47 and 48-A Directive Principles of State Policy.
It is also established that there is an intention to enter into legal relations since Tatvaa is a
part of the Benin Government initiative. The respondents also have acted in furtherance of
the assurances given by the First Minister by starting the construction of phase 1 of Tatvaa.
These are all the essential characteristics required to make a promise or assurance binding on
the government. The Government is not exempted from liability to carry out the
representation made by it to its future conduct and it cannot on some undefined and
undisclosed grounds of necessity or expediency fail to carry out a promise made, solemnly by
it. It is elementary in a republic, governed by a rule of law, no one howsoever high or low, is
above the law. Everyone is subjected to the law as fully and completely as any other and the
Government is no exception. It is indeed the pride of constitutional democracy and the rule of
law that the Government stands on the same footing as a private individual so far as
obligation under the law is concerned. In State of Rajasthan v. Mahavir Oil Mills, a new
industry was set up on the basis of an incentive scheme from the government wherein it
promised some benefits. The Supreme Court held that the State Government was bound by its
promise held out in such situation. However it does not preclude the State Government from
withdrawing the scheme prospectively. It could withdraw the scheme even during its
continuance, if public interest so requires. Even if the party has altered his position, if due to
supervening circumstances public interest requires the withdrawal of benefits, the benefits
can be withdrawn or modified. The supervening public interest would prevail over
promissory estoppel. Further, in Century Spinning and Manufacturing Co. v. Ulhasnagar
Municipality, the municipality agreed to exempt certain existent industrial concerns in the
area from octroi duty for a period of seven years. However, later on it sought to impose duty.
This was challenged and the Supreme Court, while remanding the case to High Court, held
that where the private party had acted upon representation of a public authority, it could be
enforced against the authority on the grounds of equity in appropriate cases even though the
representation did not result in a contract owing to the lack of proper form. On these
contentions, the counsel for respondents respectfully maintain that, though the assurances
given by the First Minister of Benin do not override law, they are still bounded to be obliged
by the First Minister and his contemporaneous government.

5) Whether ongoing construction of Tatvaa project be halted.

The construction of Tatvaa phase 1 began in early 2018 and as of current date more that 45%
of the construction has been completed. Halting the project would result in heavy losses for
the respondents and would hamper the development plans for the under developed region of
Arabasta as a part of the Benin Government initiative. Moreover, the construction project of
Tatvaa provides employment for skilled and unskilled labour of Arabasta locals, halting the
ongoing construction would also result in loss of wages and livelihood for the locals of
Arabasta. This would violate their right to livelihood enshrined in Article 21 of the
constitution and hence the respondents humbly opine that the construction of Tatvaa not be
halted.

6) Whether Riverdale should be asked to restore the environment as it was on the date of
construction of the project.

The liability of restoring the environment as it was on the date of construction arises only
when the regulations of environmental norms have been violated and there is significant
damage to the environment itself. Whereas, the respondents have took and commit to take all
such measures necessary for the conservation and protection of environment sustainably. The
respondents have taken steps for protection of hill slopes, conservarion of existing water
bodies, protecting natural springs, setting up sewage and effluent treatment plans with
segregation of solid wastes into biodegradable and nonbiodegradable components, building
several mini hydel power projects and have also established Envirolabs (Greenlabs) as
permanent centres in Arabasta for research in soil, moisture retention, flora, fauna, vegetation
and pollution prevention. All of these measures have already been took in the construction of
phase 1 of Tatvaa and much more steps are yet to be taken with the other 3 phases of the
project. The state level Environment Impact Assessment Authorities have granted
environmental clearance for Tatvaa, meaning the project is in complete compliance of the
norms required on a state level for environmental clearance. On these basic facts the
respondents argue that Riverdale should not be asked to restore the environment as it was on
the date of construction of the project.

7) Whether Riverdale be compelled to pay compensation to Arabasta residents.

The respondents negotiated with the local communities living in Arabasta bona-fide
residents, for which monetary compensation was adequately and fully paid according to the
market value that existed when the lands were acquired. The respondents also assured the
bona fide residents of jobs at Tatvaa construction site for semi-skilled or unskilled residents.
The respondents also as a part of their Corporate Social Responsibility ( CSR ) took various
efforts which include i) water and electricity at very low rates, ii) sanitation and upgraded
living conditions, iii) free education up to graduation for their children, iv) sill improvement
facilities and opportunities, v) employment in the agencies, services coming up in the area
and vi) workable opportunities to set up their own trades and businesses in the area. A society
will also be established locally by Riverdale to ensure that these and other required measures
are taken continuously and Riverdale will provide adequate finance to such society as a CSR
initiative. The respondents have also given an undertaking to this effect to the state.
Therefore, the counsel for respondents contend that the respondents have already
compensated enough for the Arabasta residents in adequate amount according to market
value at the time of negotiations and are also providing with various perks and benefits as a
part of their CSR and hence we maintain that no further compensation is to be paid to
Arabasta residents.

8) Whether provisions of Environment Protection Act are violated.

The only violation which can be attributed to the respondents is the one where prior
Environmental Clearance is not obtained from Central Authorities. It is our contention that
the assurances given by the First Minister itself act as a pseudo clearance for constructing the
project. Though the Ministry of Environment and Forest has not actually granted
environmental clearance for the same, the assurance given by the First Minister can act as
ratification since the First Minister is the actual head of the Central Government. The
ratifications if established, by this honourable court as legal, would give birth to an
undeniable fact, there are no provisions of Environment Protection Act which have been
violated.

9) Whether post facto approval can be granted to Tatvaa and of granted, whether it is legal.

In a notification issued by the Ministry of Environment and Forest dated 14.03.2017 bearing
reference S.O.804(E) under section 3(1) and 3(2)(v) of Environment Protection Act, 1986,
the Union of India has made a provision for grant of ex post facto environmental clearance
for project proponents, who have commenced, continued or completed a project without
obtaining clearance under the Environment Protection Act and the Environment Impact
Assessment. The notification cited the Honourable Supreme Court’s observations in Indian
Council for Enviro-Legal Action Vs. Union of India, the court observed that, ……. Section 3
of Environment Protection Act 1986 expressly empowers the Central government [ or it’s
delegates as the case may be ] to “ take all such measures as it deems necessary or expedient
for the purpose of protecting and improving the quality of environment…….”. Section 5
clothes the Central government with the power to issue directions for achieving the objects
of the Act. The Central Government is empowered to take all measures and issue all such
directions as are called for the above purpose of this notification. In the present case of the
particular notification in question, the said powers will include giving directions for removal
of sludge, for undertaking remedial measures and also the power to impose the cost of
remedial measures on the offending industry and utilize the amount so recovered for carrying
out remedial measures……. In case the projects or activities requiring prior environmental
clearance under Environment Impact Assessment Notification, 2006 from the concerned
Regulatory Authority are brought for environmental clearance after starting the construction
work, or have undertaken expansion, modernization, and change in product – mix without
prior environmental clearance, these projects shall be treated as cases of violations and in
such cases, even Category B projects which are granted environmental clearance by the State
Environment Impact Assessment Authority constituted under sub-section (3) Section 3 of the
Environment (Protection) Act, 1986 shall be appraised for grant of environmental clearance
only by the Expert Appraisal Committee and environmental clearance will be granted at the
Central level. In cases of violation, action will be taken against the project proponent by the
respective State or State Pollution Control Board under the provisions of section 19 of the
Environment (Protection) Act, 1986 and further, no consent to operate or occupancy
certificate will be issued till the project is granted the environmental clearance. The cases of
violation will be appraised by respective sector Expert Appraisal Committees constituted
under subsection (3) of Section 3 of the Environment (Protection) Act, 1986 with a view to
assess that the project has been constructed at a site which under prevailing laws is
permissible and expansion has been done which can be run sustainably under compliance of
environmental norms with adequate environmental safeguards; and in case, where the finding
of the Expert Appraisal Committee is negative, closure of the project will be recommended
along with other actions under the law. In case, where the findings of the Expert Appraisal
Committee on point at sub-para (4) above are affirmative, the projects under this category
will be prescribed the appropriate Terms of Reference for undertaking Environment Impact
Assessment and preparation of Environment Management Plan. Further, the Expert Appraisal
Committee will prescribe a specific Terms of Reference for the project on assessment of
ecological damage, remediation plan and natural and community resource augmentation plan
and it shall be prepared as an independent chapter in the environment impact assessment
report by the accredited consultants. The collection and analysis of data for assessment of
ecological damage, preparation of remediation plan and natural and community resource
augmentation plan shall be done by an environmental laboratory duly notified under
Environment (Protection) Act, 1986, or a environmental laboratory accredited by National
Accreditation Board for Testing and Calibration Laboratories, or a laboratory of a Council of
Scientific and Industrial Research institution working in the field of environment. The Expert
Appraisal Committee shall stipulate the implementation of Environmental Management Plan,
comprising remediation plan and natural and community resource augmentation plan
corresponding to the ecological damage assessed and economic benefit derived due to
violation as a condition of environmental clearance. The project proponent will be required to
submit a bank guarantee equivalent to the amount of remediation plan and Natural and
Community Resource Augmentation Plan with the State Pollution Control Board and the
quantification will be recommended by Expert Appraisal Committee and finalized by
Regulatory Authority and the bank guarantee shall be deposited prior to the grant of
environmental clearance and will be released after successful implementation of the
remediation plan and Natural and Community Resource Augmentation Plan, and after the
recommendation by regional office of the Ministry, Expert Appraisal Committee and
approval of the Regulatory Authority. The projects or activities which are in violation as on
date of this notification only will be eligible to apply for environmental clearance under this
notification and the project proponents can apply for environmental clearance under this
notification only within six months from the date of this notification. The Chief Justice of
Madras High Court, The Hon’ble Ms. Indira Banerjee while agreeing with fellow Hon’ble
Mr. Justice M. Sundar in a writ petition PIL filed against the said notification in question
observed that, i) The Ministry of Environment, Forest and Climate Change and the State
Environment Impact Assessment Authorities had been receiving proposals under the
Environment Impact Assessment Notification, 2006 for grant of Terms of Reference and
Environmental Clearance for projects which had started the work on site, expanded
production beyond the limit of environmental clearance or changed the product mix without
obtaining prior environmental clearance. ii) The Ministry of Environment, Forest and Climate
Change deemed it necessary that all entities not complying with the environmental regulation
under Environment Impact Assessment Notification, 2006, be brought to comply with the
environmental laws in expedient manner, for the purpose of protecting and improving the
quality of the environment and reducing environmental pollution. iii) The Ministry of
Environment, Forest and Climate Change deemed it necessary to bring such projects and
activities in compliance with the environmental laws at the earliest point of time, rather than
leaving them unregulated and unchecked, which would be more damaging to the
environment. iv) In furtherance of this objective, the Government of India deemed it essential
to establish a process for appraisal of cases of violation of norms, and prescribing such
adequate environmental safeguards that would deter violation of the provisions of
Environment Impact Assessment Notification, 2006 and ensure that damage to environment
was adequately compensated for. v) There can be no doubt that the need to comply with the
requirement to obtain environmental clearance is non-negotiable. Environmental clearance
ensures compliance of environmental laws. A project can be set up or allowed to expand
subject to compliance of the requisite norms. The environmental clearance is subject to the
satisfaction of the existence of necessary infrastructural facilities and equipment for
compliance of environmental norms. To protect the future generations, it is imperative that
pollution laws be strictly enforced. vi) The question is whether an establishment contributing
to the economy of the country and providing livelihood to hundreds of people should be
closed down only because of failure to obtain prior environmental clearance, even though the
establishment may not otherwise be violating pollution laws or the pollution, if any, can
conveniently and effectively be checked. The answer necessarily has to be in the negative.
vii) The Central Government is well within the scope of its powers under Section 3 of the
1986 Act to issue directions to control and/or prevent pollution including directions for prior
environmental clearance before a project is commenced. Such prior environmental clearance
is necessarily granted upon examining the project from the angle of environmental pollution.
However, one time relaxation and that too only in cases where the projects are otherwise in
compliance with or can be made to comply with the pollution norms is, in my view, not
impermissible. The notification ought not to be interfered with. viii) It is reiterated that
protection of environment and prevention of environmental pollution and degradation are
non-negotiable. At the same time, the Court cannot altogether ignore the economy of the
Nation and the need to protect the livelihood of hundreds of employees employed in projects,
which as stated above, otherwise comply with or can be made to comply with norms. ix) The
impugned notification does not compromise with the need to preserve environmental purity,
but only allows those industries and/or projects which might otherwise have been given prior
environmental clearance, but omitted to obtain environmental clearance to operate, on the
conditions imposed by the authorities concerned, including their liability under the principle
‘polluter pays’. It is in this view of the Hon’ble Chief Justice of Madras High Court and the
said notification issued by the Union of India, the counsel for respondents maintain that post
facto approval could be granted to Tatvaa and if granted, it would be legal.

10) Whether criminal liabilities can be imputed to the Directors of Riverdale and public
servants for unlawfully assisting Riverdale.

The fundamental principle of whole criminal law summed up in famous English maxim, ‘
actus non facit reum, nisi mens sit rea’, which means, ‘ The act itself does not constitute guilt
unless done with a guilty intent. This is an established and cherished principle of natural
justice. The maxim that, generally, a person cannot be guilty of a crime unless two elements
are present : the *actus reus ( guilty act ) and the *mens rea ( guilty mind ). The four elements
that go to constitute crime are, 1) A human being under legal obligation to act in a particular
way and fit subject for the inflection of appropriate punishment, 2) An evil intent or mens rea
on the part of such human being, 3) Actus reus i.e. act committed or omitted in furtherance of
such an intent and 4) An injury to another human being or to the society at large by such act.
The Apex Court in Director of Enforcement v. M/s MCTM Corpn. Pvt.Ltd. AIR 1996 SC
1100(1103) held, ‘Mens rea’ is a state of mind. Under criminal law, mens rea is considered
as the guilty intention and unless it is found that the accused had the guilty intention to
commit the crime, he cannot be held guilty of committing the crime. It is the submission of
the counsel for the respondents that, there is an absolute absence of ‘mens rea’ and ‘actus
reus’ pertaining to the conduct of Directors of Riverdale Construction Company Limited and
public servants assisting them, for any criminal liabilities to be imputed upon them. The
conduct of the Directors though profit motivated as it should be, had a bona fide element
which is conducive towards the development of an underdeveloped region and was
empowered with the assistance of state government along with assurances given by the First
Minister of Benin, who have a responsibility to develop underdeveloped regions as a part and
parcel of governing a welfare state. Moreover, the conduct of the public servants are further
protected under Section 18 of Environment Protection Act which states, ‘No suit, prosecution
or other legal proceeding shall lie against the Government or any officer or other employee of
the Government or any authority constituted under this Act or any member, officer or other
employee of such authority in respect of anything which is done or intended to be done in
good faith in pursuance of this Act or the rules made or orders or directions issued
thereunder.’ Hence, with the protection provided under Environment Protection Act, and the
absolute lack of proof for mens rea and actus reus in the conduct of the directors and the
public servants, the counsel for respondents respectfully maintain before this Hon’ble Court
that no criminal liabilities can be imputed to the Directors of Riverdale and the public
servants for assisting them.

PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to:

a. Dismiss the writ petition

b. In the alternative declare and adjudge:
1. That the respondents have not violated the fundamental rights enshrined in the
constitution.
2. That the construction of Tatvaa project not be halted.
3. That the First Minister of Benin is bounded to the assurances made in his capacity.
4. That post facto approval be granted to Tatvaa.
5. That no criminal liabilities are to be imputed to the Directors of Riverdale and
public servants for assisting them.

AND/OR

Pass any order that deems fit in the interest of Justice, Equity and Good Conscience.

And for this, the respondents as in duty bound, shall humbly pray.

COUNSEL FOR RESPONDENTS