STATE LEVEL MOOT COURT COMPETITION - 2024

TEAM: VELLODE

DIRECTORATE OF LEGAL STUDIES

TAMIL NADU STATE MOOT COURT COMMITTEE
STATE LEVEL MOOT COURT COMPETITION – 2024
BEFORE THE HON’BLE SUPREME COURT OF BHARATHAM

S.L.P. NO: ______ / 2024

(Under Art. 136)
THE DEMOCRAT APPELLANT
v.
UNION OF BHARATHAM RESPONDENT

A.S. NO: ______ / 2024

(Under Sec. 22 of NGT, Act)
VARSHI APPELLANT
v.
UNION OF BHARATHAM RESPONDENT

UPON THE SUBMISSION TO HON’BLE CHIEF JUSTICE OF BHARATHAM AND

HON’BLE COMPANION JUSTICES OF SUPREME COURT OF BHARATHAM

THE HON’BLE SUPREME COURT CLUBBED THOSE PETITION TO HEAR UNDER

ARTICLE 139A OF CONSTITUTION OF BHARATHAM, SINCE THE QUESTION OF
LAW INVOLVE BOTH PETITION RAISED FROM THE SAME CAUSE OF ACTION

COUNSEAL APPEARING ON BEHALF OF APPELLANT(S)

MEMORIAL on behalf of APPELLANT(S)

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S.No. TABLE OF CONTENTS Pg.No.

1. List of Abbreviation 3
2. Index of Authorities 4–6
a) Statutes 4
b) Conventions 4
c) Case Laws and Citation 4
d) Legal Databases 5
e) Books 6
3. Statement of Jurisdiction 7
4. Statement of Facts 8
5. Issues Raised 9
6. Summary of Arguments 10
7. Arguments Advanced 12 – 26
I. Whether the acquisition of the land of the tribal people
for the said project and construction of the Highway
through the Idukkal Reserve Forest violate the 12
Fundamental Rights of the Shengan Tribes?
II. Whether the said construction of the Greenfield
Expressway Corridor Project without requisite
environmental clearance and applying for the pos facto 19
clearance is justiciable?

III. Whether the construction of the Greenfield 23

Expressway Corridor Project is in violation of Coastal
Regulation Zone Notification and later on claiming
exemption under post facto clearance is valid?
8. Prayer 27

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LIST OF ABBREVIATIONS

S.No. Short Form Abbreviation

1. SCC Supreme Court Cases
2. AIR All India Report
3. Art. Article
4. CRZ Coastal Regulation Zone
5. NGT National Green Tribunal
6. MoEFCC Ministry of Environment, Forest and Climate Change
7. COB Constitution of Bharatham
8. WPA Wildlife Protection Act
9. EPA Environmental Protection Act
10. NHA National Highways Act
11. NHAI Act National Highways Authority of Bharatham Act
12. EIA Environment Impact Assessment
13. FRA Forest Rights Act
14. RFCTLARR Right to Fair Compensation and Transparency in Land
Acquisition and Resettlement and Rehabilitation Act
15. TNHA Thainadu National Highways Act
16. W(P&CP) Act Water (Prevention & Control of Prevention) Act
17. PPVFRA The Protection of Plant Varieties and Farmers Rights Act
18. BFA Bharatham Forest Act
19. UOI Union of India
20. EC Environmental Clearance
21. CITES Conventions on International Trade in Endangered Species
of Wild Flora and Fauna
22. CBD The Convention on Biological Diversity

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INDEX OF AUTHORITIES

S.No. STATUTES
1. Constitution of Bharatham, 1950
2. National green Tribunal Act, 2013
3. Wildlife Protection Act, 1972
4. Environmental Protection Act, 1986
5. National Highways Act, 1956
6. Right to Fair Compensation and Transparency in Land Acquisition and Resettlement
and Rehabilitation Act, 2013
7. The Protection of Plant Varieties and Farmers Rights Act, 2001

S.No. CONVENTIONS
1. Conventions on International Trade in Endangered Species of Wild Flora and Fauna
(CITES)
2. The Convention on Biological Diversity (CBD)
3. The United Nations Conference on Environment and Development (UNCED)
4. The International Covenant on Civil and Political Rights
5. Universal Declaration of Human Rights (UDHR)
6. International Covenant On Economic, Social and Cultural Rights
7. ILO Convention On Indigenous and Tribal People

S.No. CASE LAWS AND CITATIONS Pg.No.

1. Jagdev Singh Sidhanti v. Pratap Singh Daulta, AIR 1965 SC 183 13
2. Maneka Gandhi v. UOI, AIR 1978 SC 597 13
3. P.G. Gupta v. State of Gujarat, 1995 (Supp – 2) SCC 182 14
4. Subhash Kumar v. State of Bihar, AIR 1991 SC 420 15
5. Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021 15
6. Bachan Singh v. State of Punjab, AIR 1982 SC 1325 15

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7. Haranya Development Authority v. Dropadidevi, (2005)9 SCC 514 15

8. Om Kumar v. UOI, AIR 2000 SC 1325 15
9. Olga Tellis& Ors., v. Bombay Municipal Council, 1985 SCR Supp 15
(2) 51
10. K. GuruprasadRao v. State of Karnataka & Ors., 2013 INDLAW SC 16
628
11. Samata v. State of Andhra Pradesh, 1997 Supp (2) SCR 305 with 17
C.A. 4603 of 1997
12. Dr. B.L. Wadehra v. UOI & Ors., (1996) 2 SCC 594 18
13. State of U.P. & Ors v. Babu ram Upadhaya AIR 1961 SC 751 19
14. George Joseph & Ors., v. UOI, W.P. (C) No. 6602/2008 20
15. Karnataka Industrial Area Development Board v. C. Kenchappa, 20
(2006) 6 SCC 371
16. MC Mehta v. Union of India, (1997) 3 SCC 715; MC Mehta v. Union 20
Of India, AIR 1997 SC 734,pp 760, 761.
17. Vanashakti. UOI, Writ Petition No. 1394 of 2023 21
18. Hospitality Association of Mudumalai v.In Defence of Environment 21
and Animals, (2020) 10 SCC 589.
19. Animal and Environment Legal Defence fund v. Union of India, AIR 21
1997 SC 1071,P 1073.
20. Common Cause v. UOI, W.P. (C) No. 114/2014 22
21. Alembic Pharmaceuticals v. Rohit Prajapati, AIRONLINE (2020) SC 22
445
22. Piedade Filomena Gonsalves v. State of Goa & Ors., 2004 (3) SCC 23
445
23. Jagannath v. Union of India & Ors AIR 1997 25

LEGAL DATABASES: -
1. www.livelaw.in
2. www.indiankanoon.in

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3. www.casemine.com
4. www.morth.nic.in
5. www.scconline.in
6. www.ipleaders.in

S.No. BOOKS
1. Gurdeep Singh, “Environmental Law”, Second Edition, 2016
2. J.N. Pandey, “Constitution of India”, 56th Edition
3. M.P. Jain, “Constitution of India”, Eighth Edition, 2018
4. P. Leela Krishnan, “Environmental Law in India”, Sixth Edition
5. S. Shanthakumar, “Introduction to Environmental Law”, Second Editiom
6. S.C. Shastri, “Environmental Law”, Sixth Edition

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STATEMENT OF JUSRIDICTION

THE PETITIONERS HAVE APPROACHED THIS HON’BLE SUPREME

COURT BY INVOKING WRIT JURISDICTION UNDER THE SPECIAL LEAVE
PETITION UNDER ARTICLE 136 1 OF CONSTITUTION OF BHARATHAM, 1950
AGAINST THE ORDER ISSUED BY THE HIGH COURT OF THAI NADU. AND
UNDER SECTION 22 2 OF NATIONAL GREEN TRIBUNAL ACT, 2010. THIS
HON’BLE COURT HAS CLUBBED THOSE PETITIONS UNDER ARTICLE 139A3 OF
THE CONSTITUTION OF BHARATHAM. SINCE, THE QUESTION OF LAW
INVOLVED IN BOTH PETITION RAISED FROM THE SAME CAUSE OF ACTION.

1
136. Special leave to appeal by the Supreme Court: -
(1) Not withstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave
to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any
court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by
any court or tribunal constituted by or under any law relating to the Armed Forces.
2
§.22. Appeal to Supreme Court. –
Any person aggrieved by any award, decision or order of the Tribunal, may, file an appeal to the Supreme
Court, within ninety days from the date of communication of the award, decision or order of the Tribunal, to him, on
any one or more of the grounds specified in Section 100 of the Code of Civil Procedure, 1908: Provided that the
Supreme Court may entertain any appeal after the expiry of ninety days, if it is satisfied that the appellant was
prevented by sufficient cause from preferring the appeal.
3
139A. Transfer of certain cases: -
(1) Where cases involving the same or substantially the same questions of law are pending before the
Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied
on its own motion or an application made by the Attorney-General of India or by a party to any such case that such
questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases
pending before the High Court or the High Courts and dispose of all the cases itself: Provided that the Supreme
Court may after determining the said questions of law return any case so withdrawn together with a copy of its
judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on
receipt thereof, proceed to dispose of the case in conformity with such judgment.
(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case,
appeal or other proceedings pending before any High Court to any other High Court.

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SUMMARY OF FACTS

Union of Bharatham: -
The union of Bharatham became independent in 1947 and adopted its constitution in
1950 with sovereignty, socialist, secular, democratic and republic nature of polity, in which SC
act the final interpreter of the constitution not only protecting the Fundamental Rights of the
people but also developing the scope of Fundamental Rights. Since Vedic, the main motto of the
Bharatham is ‘to live in harmony in nature’. Only 2.7% of Bharatham’s total road network is
carried by NH, but causes 40% of the traffic.
State of Thainadu: -
Thainadu is Southern State of Bharatham where its Eastern part being fertile coastal
plains and Western and Southern part is home to Agriculture, dependent with Industrial
Development. This State is home to rich varieties of Flora and Fauna. The Western Ghats and
Eastern Ghats are harbor diverse ecosystem with the endemic flora and faunas.
Greenfield Expressway Corridor Project: -
In 2021, the Union Government proposed a ‘GECP’ connecting the city of Silverster to
Puhar, the capital city of Thainadu. According to the study of an NGO named, ‘The Nature’
number of threatened species of Flora and Fauna are found in IRF which is major biodiversity of
Thainadu. The project affects the forest areas and private lands for 72 KMS, the IRF for 45
KMS where the notable elephant corridor is identified, and passes through the villages for 55
KMS and the CRZ IB and CRZ II areas for 10 KMS. The Shengan Tribes raised their concerns
against the project proposed since it affects the routine livelihood of them as they revolve around
the IRF by pasturing, collecting and selling minor forest products, etc…
Petitions: -
On January 2023, ‘The Democrat’, an NGO for the welfare of STs filed a PIL before
Hon’ble HC of Thainadu and was dismissed and the petition was appealed before this Hon’ble
SC of Bharatham. On October 2023, Varshi, a Law Student filed a petition before Hon’ble NGT
to grant interim stay on the project. The petition dismissed and appealed to Hon’ble SC of
Bharatham. The Hon’ble SC merged both petition.

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ISSUES RAISED

ISSUE – 01

Whether the acquisition of the land of the tribal people for the said project and construction of
the Highway through the Idukkal Reserve Forest violate the Fundamental Rights of the Shengan
Tribes?

ISSUE – 02

Whether the said construction of the Greenfield Expressway Corridor Project without requisite
environmental clearance and applying for the pos facto clearance is justiciable?

ISSUE – 03

Whether the construction of the Greenfield Expressway Corridor Project is in violation of

Coastal Regulation Zone Notification and later on claiming exemption under post facto clearance
is valid?

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SUMMARY OF ARGUEMENTS

ISSUE – 01

WHETHER THE ACQUISITION OF THE LAND OF THE TRIBAL PEOPLE FOR THE
SAID PROJECT AND CONSTRUCTION OF THE HIGHWAY THROUGH THE
IDUKKAL RESERVE FOREST VIOLATE THE FUNDAMENTAL RIGHTS OF THE
SHENGAN TRIBES?

It is most humbly submitted that the the Construction of Greenfield Expressway Corridor
project through the Idukkal Reserve forest violates the fundamental rights of the Shegen tribes on
the following grounds; firstly the action of the Government is arbitrary under article 14, secondly
it violates the right guaranteed under Article 19(1)(e) and Article 19(1)(g) and it also violated the
livelihood of the tribes who were lived in the region from immemorial days

ISSUE – 02

WHETHER THE SAID CONSTRUCTION OF THE GREENFIELD EXPRESSWAY

CORRIDOR PROJECT WITHOUT REQUISITE ENVIRONMENTAL CLEARANCE
AND APPLYING FOR THE POS FACTO CLEARANCE IS JUSTICIABLE?

It is humbly submitted that the Construction of Greenfield Express Corridor Project

without requisite environmental clearance and later applying for the post facto clearance is
unjustifiable as the present project requires mandatory prior environmental clearance as per the
provision and it creates a huge irretrievable loss to the environment. Exception under post facto
clearance cannot be tolerated, if does it creates a huge ecological destruction.

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ISSUE – 03

WHETHER THE CONSTRUCTION OF THE GREENFIELD EXPRESSWAY

CORRIDOR PROJECT IS IN VIOLATION OF COASTAL REGULATION ZONE
NOTIFICATION AND LATER ON CLAIMING EXEMPTION UNDER POST FACTO
CLEARANCE IS VALID?
It is humbly submitted before the Hon’ble Court that the construction of Greenfield
Expressway Corridor Project violates the Costal Regulation Zone Notification and later claiming
exemption under Post fact clearance is invalid. The CRZ notification is itself clear in its
provision about the mandatory prior clearance before commencing the project. Greenfield
Expressway corridor project which falls under CRZ IB and CRZ II areas for 10kms are highly
eco sensitive which are considered as "Biodiversity Hotspots”. Claiming exemption through post
facto clearance after violating the regulations are unacceptable.

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ARGUMENTS ADVANCED

ISSUE – 01

WHETHER THE ACQUISITION OF THE LAND OF THE TRIBAL PEOPLE FOR THE
SAID PROJECT AND CONSTRUCTION OF THE HIGHWAY THROUGH THE
IDUKKAL RESERVE FOREST VIOLATE THE FUNDAMENTAL RIGHTS OF THE
SHENGAN TRIBES?
It is most humbly submitted before the Hon’ble Court that the acquisition of the land of
the tribal people for the said project and construction of the highway through the Idukkal
Reserve Forest violate the Fundamental Rights of the Shengen tribes in the following grounds;

1.1 THE FUNDAMENTAL RIGHT OF SHENGEN TRIBES ARE GETTING

UNDERMINED:
“Development only for a few becomes displacement for many; they become refugee in
their own Country” Reading public 4are enlighten and alive to the problems of displacement and
development. It is time that development enthusiasts open their eyes to the miserable tales of the
living martyrs of development, whose woes should have been anticipated and who could have
been rehabilitated before, are along displacement.
It is humbly submitted that the Fundamental right to equality guaranteed under Art.14 of
the Constitution is violated by acquire the land of tribe for said project which also adversely
affect the fundamental right to reside in any part of the country5 and also the government is well
known about the livelihood of the Shengen tribes are mostly revolves around the Idukkal
Reserve Forest by pasturing, collecting and selling minor forest produces., 6 even though they
pacified the tribes on assuring that their interest over the forest is protected and secured before
commencing the project, but later government acquired the land and dislocated the people from
their places which clearly contrast to right to practice any profession or to carry on any

4
Surabhi Goyal of Punjab, letter to the Editor in The Hindu, 7th August 2015
5
Article 19 of COB, 1950
6
Page 18, ¶8, Moot proposition, Salem Law College state Level Moot Court Competition, 2024.

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occupation, trade or business7which simultaneously violates the right to livelihood and shelter
enriched under Article 21 of the constitution. And also, Government fails to protect the interest
of minorities guaranteed under Article 29(1).8

1.2 ARBITRARY ACT OF GOVT. IS INVALIDATED BY PROVISION OF

ARTICLE14:-
The petitioner humbly submitted that there is no need for Greenfield Expressway
Corridor Project in the way of Idukkal forest region, the government can make an alternate way
for constructing the highway for connecting Silverster and Puhar in order facilitate the
transportation between the two economic centers. The Fundamental right to equality enshrined
under Article 14 of the Constitution extents to the prevention of Arbitrary and unreasonable
actions of the State, which are “anti- ethical” to “the rule of equality”.9
It is also submitted that the Greenfield project doesn’t get any prior environment
clearance, which is clearly mentioned in the fact itself as “later after completion of 50% of the
Construction work by September 2023, based on the notification by MoEFCC which gives one
time remedy for the violators to apply for post facto clearance, then Government has applied for
Post facto clearance for the said project”10 but according to EIA notification,2006 states that
prior environmental clearance is necessary for Category ‘A’ project, here what the “Greenfield
Expressway Corridor Project” fall under the Category ‘A’ so the prior environmental clearance is
mandatory but here without a proper clearance Government acquire the lands of the tribe is
completely arbitrary.11

1.3 VIOLATION OF ARTICLE 19: -

The Shengen tribes has the right to reside and settle in any part of the territory of India12,
which states that they have a right to reside in the Idukkal forest region which is abruptly
guaranteed under Article 19 (1)(e) of the Constitution has been violated.

7
Supra note 1
8
Jagdev Singh Sidhanti v. Pratap Singh Daulta, AIR 1965 SC 183, ¶ 188
9
Maneka Gandhi v. UOI, AIR 1978 SC 597
10
Page 19, ¶11, Moot proposition, Salem Law College state Level Moot Court Competition, 2024.
11
¶3, EIA Notification, 2006
12
Supra note 1

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The preamble and Art.19 (1)(e) r/w Art. 3813, 3914, 4615 makes the life meaningful and
loveable in equal status with the dignity of the person. It is therefore, imperative on the part of
the state to provide permanent housing accommodation to the indigenous tribal population or to
sustain the privileges provide in any undertaken project within economic means.16 It should also
take in mind that the right of indigenous tribal communities in regard to movement is intertwined
with their right to profession as well as the right to livelihood as act of searching food in the
forest is their only source meet their needs.
And also, Article 19(1)(g) of the Constitution of India provides right to practice any
profession or to carry on any occupation, trade or business to all citizen, here the Shengen tribes
are mostly revolves around the Idukkal Reserve Forest by pasturing, collecting and selling minor
forest produces.17 It is humbly submitting that through the said project which plug the tribe from
their root and make their livelihood as question mark.
1.4 VIOLATION OF ARTICLE 21:
`The “Shengen Tribes” who are the native of Idukkal region has been enjoying the
indigenous rights of the Idukkal forest since time immemorial. The livelihood of the Shengen

13
38. State to secure a social order for the promotion of welfare of the people
(1)The State shall strive to promote the welfare of the people by securing and protecting as effectively as it
may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
(2)The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate
inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people
residing in different areas or engaged in different vocations.
14
39. Certain principles of policy to be followed by the State
The State shall, in particular, direct its policy towards securing—
(a)that the citizens, men and women equally, have the right to an adequate means to livelihood;
(b)that the ownership and control of the material resources of the community are so distributed as best to
sub serve the common good;
(c)that the operation of the economic system does not result in the concentration of wealth and means of
production to the common detriment;
(d)that there is equal pay for equal work for both men and women;
(e)that the health and strength of workers, men and women, and the tender age of children are not abused
and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;
(f)that children are given opportunities and facilities to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are protected against exploitation and against moral and material
abandonment.
15
46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other
weaker sections: -
The State shall promote with special care the educational and economic interests of the weaker sections of
the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social
injustice and all forms of exploitation.
16
P.G. Gupta v. State of Gujarat, 1995 (Supp – 2) SCC 182
17
Supra note 2

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tribe also mostly revolved around the Idukkal Reserve Forest by Pasturing, collecting and selling
minor forest produces, etc.,18
This is clearly states that the Shengen tribe has the rights of ownership and possession of
the land from time immemorial and also it is the duty of the Government should guarantee the
effective protection of their rights of ownership and possession19 and also in the case20, Supreme
court held that the Right to a wholesome of environment is a part of right to life under Article 21
of the Constitution of India.21 Also, ICCPR22, UDHR23and ICESCR24 recognizes right to life
and adequate standard of living. Further it is humbly submitted that, in order to establish
violation of Article 21, the act should be subjected to the equality test of Article 14 and test of
reasonableness under Article 1925.
Article 14 strikes at arbitrariness because it negates equality26and permeates the entire
fabric of Rule of law27. Therefore, every action of the state must be guided by reason for public
good and not by whim, caprice, and abuse of power.28 Article 19 provides that a restriction can
be characterized to be reasonable if it strikes a balance between the fundamental right and
restriction imposed thereon29.
The right to livelihood in Article 21 of the Constitution refers to the right of every person
to earn a livelihood by lawful means. It encompasses the right to work and pursue a chosen
occupation to oneself and one’s family. This is ruled by the Supreme Court that the right to life
in Article 21 of the Indian Constitution includes the right to livelihood and right to shelter. 30 And
also, the Sources of livelihood for the forest dwelling people for generation have been forest and

18
Supra note 2
19
Article 14 0f ILO Convention On Indigeneous And Tribal People,1989
20
Subhash Kumar v. State of Bihar, AIR 1991 SC 420
21
Supra note 12
22
Article 6, ICCPR
23
Article 3, UDHR
24
Article 11, ICESCR
25
Supra note 5
26
Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021
27
Bachan Singh v. State of Punjab, AIR 1982 SC 1325
28
Haranya Development Authority v. Dropadidevi, (2005)9 SCC 514
29
Om Kumar v. UOI, AIR 2000 SC 1325
30
Olga Tellis& Ors., v. Bombay Municipal Council, 1985 SCR Supp (2) 51

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forest lands and so are considered inseparable31.However, with the advent civilization they were
exploited by outsiders.32
If the tribe and dwellers disposed of the land their rights to livelihood are being affected.
This is clear-cut contrast to Article 21 of the Constitution which provides every person with the
Right to life and Personal liberty to the citizen and even the non-citizen. And also, the Forest
dwellers and tribal form a significant part of the population. As stated above they form about 8.6%
of the population of this country. If they are deprived of their livelihood, then Bharatham cannot
achieve the main objective of democracy as stated “the Country has adopted its Constitution in
1950 with a sovereign, socialist, secular, democratic and republic nature of policy” in the moot
proposition33, as they are still ruled over by the thoughts and whims of the Government.

1.5. LAND RIGHTS OF SCHEDULED TRIBES: -

The population of the Scheduled Tribes became more marginalized and isolated. It is
necessary to protect and safeguard the land rights of the Scheduled Tribes in the nation. The
Legal and Constitutional Rights of Scheduled Tribes in Land affairs are;
Section 4(5) of The Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 states, “Save as otherwise provided, no member of a
forest dwelling Scheduled Tribes or Other Traditional Forest Dweller shall be evicted or
removed from the Forest Land under his occupation till the recognition and verification
procedure is complete.”
Here fact itself clears that The Shengan Tribes who are the natives of Idukkal region has
been enjoying the indigenous rights of the Idukkal forest since time immemorial – On knowing
that the proposed highway project has been passing through the Idukkal reserve forest, The
Shengan tribes raised their concerns and conducted various mass movements. The Government
pacified the tribes on assuring that their interest in the forest will be protected and secured before

31
K. GuruprasadRao v. State of Karnataka & Ors., 2013 INDLAW SC 628
32
M.P.Jain, The Constitution of India, First Report of the Commissioner for Scheduled Castes and Scheduled Tribes,
3, 11(1952); Samantha v. State of Andhra Pradesh
33
Page 16, ¶2, Moot proposition, Salem Law College state Level Moot Court Competition, 2024.

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commencing the project. Later, the Government acquired the land and the tribal people were
dislocated from their place.34
Therefore, from the fact itself clearly states that the verification procedure 9s not yet
completed, for this the counsel seeks to rely upon the In the landmark case of Samata v. State of
Andhra Pradesh35judgment of 1997, (popularly known as the Samata Judgment) the Supreme
Court of India delivered an authoritative verdict in favor of the right to livelihood of the tribals
inhabiting the scheduled areas of the country. In this case, the judiciary reached its pinnacle in
upholding the rights of the tribal community. The Samata judgment is an outcome of sustained
people’s struggle to safeguard their land, resources and livelihood in tribal belts of Andhra
Pradesh. It had ramifications across the country.

1.6. ACQUISITION OF TRIBAL LANDS: -

The Government is aware of the impact of tribal community due to such acquisition of
tribal land. To address the issue of the Land Acquisition and dislocation of the tribal,
Constitutional and legal proceedings for safeguarding the rights of tribals to land already placed
under as follows; -
Government has enacted the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 201336. The purpose of the said Act is to
ensure, in consultation with institutions of local self-government and Gram Sabhas established
under the Constitution, a humane, participative, informed and transparent process for land
acquisition with the least disturbance to the owners of the land and the other affected families
and provide just and fair compensation to the affected families whose land has been acquired or
proposed to be acquired. And also, the rights of Scheduled tribes and Scheduled area have been
constructed to be safeguard under Article 244(1) and the provisions of Fifth Schedule of the
constitution. Therefore, in the present issue also the Shengen tribes were need to be safeguard
and protected by the State.

34
Supra note 2
35
Samata v. State of Andhra Pradesh, 1997 Supp (2) SCR 305 with C.A. 4603 of 1997
36
Fair Compensation Act, 2013 in short.

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“As far as possible, no acquisition of land shall be made in the Scheduled Areas.” 37
Whereas the fact itself clearly mentioned that the Government pacified the Tribes on assuring
that their interest in the forest will be protected and secured before commencing the project. But
later on, the lands of the Tribal Communities were acquired and the tribals were dislocated from
the forest.
Article 29 of the Constitution and Article 27 of ICCPR states that minority group should
not be denied the right to enjoy their own culture. However as per the fact the Shengen tribes
were settled and reside in the Idukkal forest from immemorial day, but this sudden dislocation of
the tribes to the new culture, making them more prone to exploitation, as they were not ready to
change their culture and which make them to suffer for their livelihood. Therefor under Article
47, the Government is obliged to take steps ‘for the improvement of public health’ and the non-
availability of financial resources is not an excuse in this regard.38
Whereas in present issue, it is clearly mentioned that the tribes were dislocated later by
the government which clearly shows that just a dislocation of the people is takes place there is no
compensation and rehabilitation made as per the provisions of Forest rights Act and fair
compensation Act, 2013.39

37
§. 41 (1), The Right to Fair Compensation in Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013
38
Dr. B.L. Wadehra v. UOI & Ors., (1996) 2 SCC 594
39
Supra note 2

MEMORIAL on behalf of APPELLANT(S)

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ISSUE – 02

WHETHER THE SAID CONSTRUCTION OF THE GREENFIELD EXPRESSWAY

CORRIDOR PROJECT WITHOUT REQUISITE ENVIRONMENTAL CLEARANCE
AND APPLYING FOR THE POST FACTO CLEARANCE IS JUSTICIABLE?
It is humbly submitted that the Construction of Greenfield Express Corridor Project
without requisite environmental clearance and later applying for the post facto clearance is non-
justiciable as the present project requires mandatory prior environmental clearance as per the
provision.

2.1. MANDATORY REQUIREMENTS OF PRIOR EC: -

EIA Notification 200640, details the different type of project that would need to obtain
environmental clearance prior to commencing the project. Regulation no.2 of the notification
provides that prior environmental clearance is required for all projects provided in the schedule
to the notification. Item no.7(f) of the schedule deals with highways and its states that if a new
highways is being Constructed when such a project is classified as Category “A” Projectwhich
made environmental clearance from the Central Government. Therefore, it is submitted that a
new highway project needs to receive prior environmental approval from the central government
before commencing construction work. The provision read as;
The following projects or activities “shall” require prior environmental clearance from
the concerned regulatory authority, is held by the Hon’ble Supreme Court in the case41 explained
the meaning of the word “shall” to mean “it is mandatory.” This decision is cited to support the
contention that prior environmental clearance as stipulated in the notification dated 14.09.2006 is
a mandatory condition required to be followed. And also, the Environmental Clearance
notification dated 14.09.2006, uses the word “prior” which shall mean that prior approval is
mandatory and failure to obtain prior approval will result in serious and disastrous consequences.
In our case, “Greenfield Expressway Corridor Project” is a project to acquire mandatory
prior Environmental Clearance.

40
EIA Notification, 2006
41
State of U.P. & Ors v. Babu ram Upadhaya AIR 1961 SC 751

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In requirement of getting prior EC, the four mandatory stages are as follows: -
1) Screening,
2) Scoping,
3) Public Consultation,
4) Appraisal.
Only after the completion of these stages a proper report can be made about the project
environmental impact.
Here, the important step is public consultation which is a very important step and not an
empty formality and it is indispensable. In terms of condition XXVI of the terms of reference
mandates a social impact assessment to be conducted. Especially in present issue, the most
indigenous i.e. “Tribal people” are involved, so their thorough consultation is very important.
Reliance was placed on the decision of the High Court which held that public hearing
should be conducted before deciding42.In this project the loss is huge than the benefit.
In the light of the decision of the Hon’ble Supreme Court, that being the general direction
prior environmental clearance is required.43
Recently, The Supreme Court suspended two union government orders from July 2021
and January 2022 for ex-post facto clearance for mining projects without the prior environmental
clearance mandated under the 2006 Environment Impact Assessment (EIA) notification
A provision of ‘prior EC’ and ‘ex post facto EC’ cannot co-exist being mutually
destructive and an oxymoron, for the simple reason that an impact assessment can only take
place before commencement of activity and not after, and that an EC is an approval which is
taken prior to the commencement of activity and emanates from the ‘precautionary principle’44
which is one of the cornerstones of environmental jurisprudence. The 2006 notification, a
statutory document having the force of law in which the words ‘prior environmental clearance’
used for 34 times and in addition thereto the expression ‘prior’ used six times to emphasize the
need for obtaining environmental clearance prior to the commencement of any project activity.

42
George Joseph & Ors., v. UOI, W.P. (C) No. 6602/2008
43
Karnataka Industrial Area Development Board v. C. Kenchappa, (2006) 6 SCC 371
44
MC Mehta v. Union of India, (1997) 3 SCC 715; MC Mehta v. Union Of India, AIR 1997 SC 734,pp 760, 761.

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In other words, the notification mandates the requirement of ‘prior environmental clearance’
without exception.45

2.2. IRRETRIEVABLE LOSS: -

Application for the ex post facto clearance after the completion of nearly 50% of
construction is like squaring the circle as it has already covered the ‘Idukkal Reserve Forest’
which is the major biodiversity region with number of threatened species of flora and fauna.46
The proposed Greenfield Expressway Corridor Project is traversing through various forests and
private lands for the length of 72kms also passes “Idukkal Reserve Forest” for the length of
45kms, which has notable “Elephant Corridor” in it. The Hon’ble Supreme Court emphasized the
need to protect the travel routes of Elephants47 and highlighted their roles48 as the “Keystone
species”, a species without whom the ecosystem would be different or cease to exist altogether.
“Shengen Tribes” who is enjoying indigenous right of the Idukkal Forest since the time
immemorial are being affected a lot. “Tribals looked upon forest, the nature’s gift, as their own
property and they have unfettered freedom to do as they pleased 49 . The rights of the tribals
formally living in the area to keep body and soul together must receive proper consideration.
Undoubtedly, every effort should be made to ensure that the tribals, when resettled, are in a
position to earn their livelihood50.

2.3 POST FACTO CLEARANCE IS VERY EXCEPTIONAL: -

Applying for post facto clearance is unacceptable and not justiciable. Post Facto
Clearance is rejected in number of cases as it is provided very exceptionally and in rare
conditions. It is given only after strict procedure. It checks all the protocols before providing.
In our issue, there is no need for providing post facto clearance as the project in whole is a
violation. It has caused severe damages to environment.

45
Vanashakti v. UOI, Writ Petition No. 1394 of 2023
46
Supra note 6
47
Hospitality Association of Mudumalai v.In Defence of Environment and Animals, (2020) 10 SCC 589.
48
Ibid 39 Page 605
49
VS Saxena, “Social Forestry In Tribal Development” in Desh Bandhu and RK Garg, Social Forestry and Tribal
Development, Natraj publishers, Dehradun, 1986,pp 38,39
50
Animal and Environment Legal Defence fund v. Union of India, AIR 1997 SC 1071,P 1073.

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This project has alternative roads which show this is not a best alternative. In Re,
Common Cause51 (2017) and Alembic Pharmaceuticals52 (2020), the petition has contended that
not only have ex post facto environmental clearance been consistently deprecated by the top
court as alien to environmental jurisprudence and a violation of its fundamental principle, but no
positive amendments can be made and no retrograde or regressive steps taken as per the purport
of Section 3 of the EP Act, 1986.53
In Re, Vanashakti 54 , the Hon’ble Supreme Court suspended two union governments’
orders from July 2021 and January 2022 for ex post facto clearance for mining project without
the prior EC mandated under the 2006 EIA Notification, acknowledging the potential ecological
impact of allowing mining projects without the mandated clearance. Grant of Ex – Post Facto
Clearance, invariably has a severe, deleterious and adverse impact on ecologically sensitive and
vulnerable areas.
Therefore, it is humbly submitted that the Construction of Greenfield Express
Corridor Project without requisite environmental clearance and later applying for the post facto
clearance is non-justiciable

51
Common Cause v. UOI, W.P. (C) No. 114/2014
52
Alembic Pharmaceuticals v. Rohit Prajapati, AIRONLINE (2020) SC 445
53
§. 3 of EP Act, 1986— (1) Subject to the provisions of this Act, the Central Government shall have the power to
take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of
the environment and preventing, controlling and abating environmental pollution.
54
Supra note 38

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ISSUE – 03

WHETHER THE CONSTRUCTION OF THE GREENFIELD EXPRESSWAY

CORRIDOR PROJECT IS IN VIOLATION OF COASTAL REGULATION ZONE
NOTIFICATION AND LATER ON CLAIMING EXEMPTION UNDER POST FACTO
CLEARANCE IS VALID?
It is humbly submitted before the Hon’ble Court that the construction of Greenfield
Expressway Corridor Project violates the Costal Regulation Zone Notification and later claiming
exemption under Post fact clearance is invalid on the following grounds;

3.1. COASTAL REGULATION ZONE NOTIFICATION,2019

The CRZ notification, issued under Section 3 of the Environmental Protection Act,1986,
seeks “to conserve and protect the unique of coastal stretches and marine areas, besides
livelihood security to the fisher communities and other local communities in the Coastal area”.
And also, it humbly submitted by the counsel that The Coastal Regulation Zone notifications
have been issued in the interest of protecting environment and ecology in the coastal area.
Construction raised in violation of such regulations cannot be lightly condoned55
As per the procedure the Coastal are have been classified into four categories as
CRZ-1These are environmentally sensitive areas which are important for the protection
of the coastal ecosystem. These include national parks/marine parks, sanctuaries, forest reserves,
areas for birds, mangroves, and coral/coral reefs. Such areas are situated between the high and
low tide lines
CRZ-2 This includes areas which have already grown before the coastline. Construction
of unauthorized structures is prohibited in this zone.
CRZ-3 Rural and urban settlements are included under CRZ-3 which are largely
undisturbed and do not belong to the first two groups. Only limited agricultural or some public
facilities-related activities are permitted in this region. This covers non-substantially built-up
areas within city boundaries or in legally designated urban areas.

55
Piedade Filomena Gonsalves v. State of Goa & Ors., 2004 (3) SCC 445

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CRZ-4 These areas include Lakshadweep’s coastal coasts, the Andaman and Nicobar
Islands and several other small islands, with the exception of CRZ-I, CRZ-II or CRZ-III.
These areas exist up to the territorial limits within the aquatic zone. In this zone activities such as
fishing and other related services are permitted. Releasing of solid waste on such land is
forbidden.
Here in the present issue, 10 km of the Greenfield Expressway Corridor Project Falls on
CRZ IB and CRZ II area which are highly eco sensitive areas. Eco Sensitive areas are bio
diversity hotspots or a biogeographic region with a significant reservoir of bio diversity. It
exhibit relatively high native plant and or animal species richness in the context of other areas.
These areas are more productive, Hence their conservation and sustainable use is significant for
the long term interest of eco system.

3.2 VIOLATION OF NOTIFICATION

The Greenfield Expressway Corridor Project is clearly a violation of Coastal regulation
Zone Notification, because any construction under CRZ Notification is subjected to a detailed
marine or terrestrial or both environment impact assessment, to be recommended by the coastal
zone management Authority and approved by the Ministry of Environment Forest and Climate
Change.
Under the provisions of CRZ Notification, 2019 states that;
CRZ clearance for permissible and regulated activities- Delegation:56
(i) All permitted or regulated project activities attracting the provisions of this
notification shall be required to obtain CRZ clearance prior to their commencement.
(ii) All development activities or projects in CRZ-I and CRZ-IV areas, which are
regulated or permissible as per this notification, shall be dealt with by Ministry of
Environment, Forest and Climate Change for CRZ clearance, based on the
recommendation of the concerned Coastal Zone Management Authority.
(iii) For all other permissible and regulated activities as per this notification, which
fall purely in CRZ–II and CRZ-III areas, the CRZ clearance shall be considered by the
concerned Coastal Zone Management Authority and such projects in CRZ –IIand III,

56
§. 7, CRZ Notification, 2019.

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which also happen to be traversing through CRZ–I or CRZ-IV areas or both, CRZ
clearance shall, however be considered only by the Ministry of Environment, Forest and
Climate Change, based on recommendations of the concerned Coastal Zone Management
Authority.
(iv) Projects or activities which attract the provisions of this notification as also the
provisions of EIA notification, 2006 number S.O. 1533(E), dated the 14th September, 2006,
shall be dealt with for a composite Environmental and CRZ clearance under EIA Notification,
2006 by the concerned approving Authority, based on recommendations of the concerned
Coastal Zone Management Authority, as per delegations i.e., State Environmental Impact
Assessment Authority (hereinafter referred to as the SEIAA) or the Ministry of Environment,
Forest and Climate Change for Category ‘B’ and Category ‘A’ projects respectively.
As per the above provisions, any project which comes under ‘CRZ IB, CRZ II’, must
obtain clearance prior to their commencement from the respective authorities. Here, it shows the
clear violation.

3.3 CLAIMING FOR PFC IS INVALID:

In S. Jagannath,57 The Court opined that ‘before any activity is permitted to be installed
in the ecologically fragile coastal area it must pass through a strict environmental test. There
must be an Environmental impact assessment before permission is granted to install commercial
activity. the Assessment must also include the social impact on different population strata in the
area. The quality of the assessment must be analytically based on superior technology’. This led
to the direction to the Central Government to constitute an authority to oversee the protection of
the Coastal areas.
It also held that, “The purpose of CRZ Notification is to protect the ecologically fragile
coastal areas and to safeguard the aesthetic qualities and uses of the sea coast.”
There should be strict nature while providing environmental clearance to any project, mainly
when there is an involvement of coastal environment.
In the case, Indian council for Enviro – Legal Action V. Union of India, ‘On the issue
of non-enforcement of environmental laws, the court observed that enactment of a law, but

57
Jagannath v. Union of India & Ors AIR 1997

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tolerating is infringement, is worse than not enacting a law at all…. continued tolerance of such
violations of law not only renders legal provisions nugatory but such tolerance by the
enforcement authorities encourages lawlessness and adoption of means which cannot, or not to,
be tolerated in any civilized society’
In our case there is no Environmental clearance as well as coastal regulation clearance,
thus, providing them exemption under post facto clearance cannot be tolerated

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PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced and
authorities cited, it is most humbly prayed and implored before the Hon’ble Supreme Court of
Bharatham that it may be benevolently pleased to

1. Declare, that the acquisition of the land of the tribal people for the said Project and
Construction of the Highway through the Idukkal Reserve Forest violate the Fundamental
Rights of the Shengen tribes.

2. Declare, that the said construction of the Greenfield Expressway Corridor Project without
requisite Environmental Clearance and applying for the post facto clearance is
unjustifiable.

3. Declare, that the construction of Greenfield Expressway Corridor Project is in violation

of Coastal Regulation Zone Notification and later on claiming exemption under post facto
clearance is invalid at any Cost.

And

Also pass any other order that this Honorable Court deems fit and proper in the interests of
Justice, Equity, and Good Conscience.

For this act of Kindness, the APPELLANT(S) shall be duty-bound forever to pray.

All of which is humbly prayed,

MEMORIAL on behalf of APPELLANT(S)

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Counsels appearing on the behalf of APPELLANT(S)

MEMORIAL on behalf of APPELLANT(S)

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