M.C.MEHTA V.

KAMAL NATH

BEFORE THE HONORABLE SUPREME COURT OF INDIA

IN THE MATTER OF:

M. C. MEHTA ……..PETITIONER

v.

KAMAL NATH AND OTHERS ……..RESPONDENT

Date of Submission: 26th September, 2016

Memorandum on behalf of Respondent

KAMALNATH AND OTHERS

Toshan Chandrakar

Semester III

Section A

Roll No. 182

Memorandum On Behalf of Respondent

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 M.C.MEHTA V. KAMAL NATH

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................ 2

LIST OF ABBREVIATIONS ......................................................................................................... 3

INDEX OF AUTHORITIES........................................................................................................... 4

STATEMENT OF FACTS ............................................................................................................. 5

STATEMENT OF ISSUES ............................................................................................................ 6

SUMMARY OF ARGUMENTS .................................................................................................... 7

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

1. THE FUNDAMENTAL RIGHT UNDER ARTICLE 21 OF THE CONSTITUTION OF

INDIA, 1950 HAS NOT BEEN VIOLATED. ............................................................................ 8

2. THE RESPONDENT IS NOT LIABLE FOR ENVIRONMENTAL DEGRADATION. .. 9

2.1 The Public Trust Doctrine cannot be a part of the law of the land in Indian Context. ...... 9

2.2 The Defendant is not liable to pay any sum for environmental degradation. .................. 10

PRAYER ....................................................................................................................................... 11

Memorandum On Behalf of Respondent

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 M.C.MEHTA V. KAMAL NATH

LIST OF ABBREVIATIONS

Acc. According

AIR All India Reporter

Art. Art.

BomCR Bombay Case Reporter

CEDAW Convention on the Elimination of

All forms of Discrimination
Against Women, 1979

Nos. Numbers

Ors. Others

P.I.L. Public Interest Litigation

SC Supreme Court

SCC Supreme Court Cases

Sec. Section

u/a Under Art.

u/s Under Sec.

UDHR Universal Declaration of Human

Rights, 1948

v. Versus

Memorandum On Behalf of Respondent

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INDEX OF AUTHORITIES

A. Constitution of India, 1950

B. Treaties/Conventions:
1. The Rio Summit, 1992

C. Statutes:
1. Environment Protection Act, 1986
2. Forest (Conservation) Act, 1980
3. Indian Forest Act, 1927

D. Case Laws:
1. Narmada Bachao Andolan v. Union of India
2. Vishaka v. State of Rajasthan
3. University of Kerala v, Council, Principal’s, Colleges, Kerala and Ors.

4. Books:
1. Dhirajlal & Ratanlal, The Law of Torts, 26th edition 2012, LexisNexis Butterworths Wadhwa
Nagpur.
2. Jain M.P., Indian Constitutional Law, 6th Edition 2011, LexisNexis Butterworth Wadhwa
Nagpur.
3. Leelakrishnan P., Environmental Case Law Book, 2nd Edition 2006, LexisNexis
Butterworths.
4. Mehdi Ali, Water Pollution Laws and Their Enforcement in India, 1st Edition, R. Cambray &
Co. Pvt Ltd.
5. Shanthakumar S., Introduction to Environmental Law, 2nd Edition, 2014, Lexis Nexis
6. Shukla V.N , Constitution of India, 11th edition 2008, Eastern Book Company.

Memorandum On Behalf of Respondent

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STATEMENT OF FACTS

Span Motels Private Limited, which owns Span Resorts, had floated another ambitious venture,
Span Club. The club was built 27.12 bighas of land, including substantial forestland, in 1990.
The land was later regularised and leased out to the company on April 11, 1994.

A worrying thought was that of the river eating into the mountains, leading to landslides which
were an occasional occurrence in that area. In September of the same year, these caused floods in
the Beas and property estimated to be worth Rs. 105 crore was destroyed.

The Government of India, Ministry of Environment and Forests by the letter dated 24.11.1993,
addressed to the Secretary, Forest, Government of Himachal Pradesh, Shimla conveyed its prior
approval in terms of Section 2 of the Forest (Conservation) Act, 1980 for leasing to the Motel 27
bighas and 12 biswas of forest land adjoining to the land already on lease with the Motel. An
expert committee formed to assess the situation of the area arrived at the conclusion that the river
is presently in a highly unstable regime after the extraordinary floods of 1995, and it is difficult
to predict its behaviour if another high flood occur in the near future.

Memorandum On Behalf of Respondent

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STATEMENT OF ISSUES

ISSUE 1: WHETHER THE FUNDAMENTAL RIGHT UNDER ARTICLE 21 OF THE

CONSTITUTION OF INDIA, 1950 HAS BEEN VIOLATED?

ISSUE 2: WHETHER THE RESPONDENT IS LIABLE FOR ENVIRONMENTAL

DEGRADATION?

Memorandum On Behalf of Respondent

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SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE FUNDAMENTAL RIGHT UNDER ARTICLE 21 OF THE

CONSTITUTION OF INDIA, 1950 HAS BEEN VIOLATED?

It is humbly submitted before the honorable court that the right to life as stated under article 21
has not been violated in the present case. There may be other remedies available to the petitioner.
Whatever other remedies may be open to a person aggrieved, he has no right to complain under
Article 32 where no fundamental right has been infringed.

ISSUE 2: WHETHER THE RESPONDENT IS LIABLE FOR ENVIRONMENTAL

DEGRADATION?

It is humbly submitted before the honorable court that the respondent is not liable for any
damages to be paid under the polluter pays principle. Public Trust doctrine as founded by the
British Courts and followed on by the American Courts cannot be a part of the law of the land.

Memorandum On Behalf of Respondent

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ARGUMENTS ADVANCED

1. THE FUNDAMENTAL RIGHT UNDER ARTICLE 21 OF THE

CONSTITUTION OF INDIA, 1950 HAS NOT BEEN VIOLATED.

Art. 21 of the constitution of India provides for protection of life and liberty. It is submitted
before the honorable court that the right to life as stated under article 21 has not been violated in
the present case. There may be other remedies available to the petitioner. Whatever other
remedies may be open to a person aggrieved, he has no right to complain under Article 32 where
no fundamental right has been infringed.

This hon’ble court in Narmada Bachao Andolan v. Union of India1 has held that “when it
comes to the matter of sustainable development, the state needs to take some measures which
may involve risk and a considerable amount of inconvenience to the general public. But the
inconvenience caused should not be arbitrary and unreasonable……..”.

It is humbly submitted before this hon’ble court that the measures to prevent flood in nearby
areas is among the acts being challenged. The motel is for the convenience of the general public
and the acts involved in preventing it from floods does not amount to violation of right to life and
liberty.

Therefore, it is reasoned that the construction and other acts done by the respondent would not
‘per se result in violation of fundamental rights or other rights.’2 Hence, establishing that there
has been no violation of fundamental right of right to life as prescribed under article 21 of the
Constitution of India.

1
(2000) 10 SCC 664
2
Narmada Bachao Andolan v. Union of India; AIR 2000 SC 3751

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2. THE RESPONDENT IS NOT LIABLE FOR ENVIRONMENTAL

DEGRADATION.

The Respondent and others have not caused environmental degradation by their respective acts.
The act done by the Respondent was only limited to the protection of private property with no
intention to harm or damage to any public property. The floods of 1994-1995 proved to be very
fatal washing away the lawns and nearby areas and such act of god made the motel institute a
committee to take a decision in order to save its property. The acts done hence are justifiable as
the acts were done on the leased land and under every legal principle, in order to save itself from
the wrath of the nature.

2.1 The Public Trust Doctrine cannot be a part of the law of the land in Indian Context.

It is submitted before the honorable court that the Public Trust Doctrine as held to be law of the
land by the subordinate courts cannot be so as the honorable courts have been acting outside the
course of their authority. Making laws is the work of the legislature. The judiciary can enforce
laws but cannot make a law. Here it is most humbly submitted that the judiciary did the work of
the legislature. The judiciary cannot discharge administrative functions representing the
Parliament of India and that such law making powers have been vested only with the legislature
of this country. The courts acting outside the course of its authority has not only failed the
principles of natural justice but also the faith of the defendant.

In this respect it is submitted that the courts can only submit guidelines. Where the court3 had
issued a series of guidelines based on CEDAW4, the bench in University of Kerala v, Council,
Principal’s, Colleges, Kerala and Ors.5 argued that the guidelines had encroached on the

3
Vishaka v. State of Rajasthan; AIR 1997 SC 3011
4 Convention on the Elimination of All Forms of Discrimination, 1979
5
AIR 2010 SC 2532

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legislature’s jurisdiction. Making observations on the court’s role in Vishaka it said:

In Vishaka v. State of Rajasthan… a three-judge bench of this court has issued various
directives and as stated therein these will be treated as law under Article 141 of the
Constitution… While we fully agree that working women should be protected against sexual
harassment, the constitutional question remains whether such directives by this court are
constitutionally valid? In substance the court has said… that it will become an interim
Parliament and legislate on the subject until Parliament makes a law… Is this constitutionally
valid? Can the court convert itself into an interim Parliament and make law until parliament
makes a law on the subject?

It is hence, submitted that the Public trust Doctrine cannot be made a law under the Indian
Context by the courts.

2.2 The Defendant is not liable to pay any sum for environmental degradation.

It is contended that since there has been no environmental degradation caused by the respondent;
he is not liable to pay any amount of sum under the polluters pay principle.

Memorandum On Behalf of Respondent

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PRAYER

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

1. Quash the appeal.

2. Pass a decree for compensation in favor of the respondents.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience. And
for this, the Respondent as in duty bound, shall humbly pray.

COUNSEL FOR THE RESPONDENT

TOSHAN CHANDRAKAR

SEMESTER – III

SECTION – A

ROLL NO. – 182

Memorandum On Behalf of Respondent

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