NEHU2016/03-P

NEHU2016/03-P
NEHU NATIONAL MOOT COURT COMPETION, 2016
SAVE SOUTH WEST (SSW) VS SOMAVISHU AND OTHERS
IN THE HONBLE SUPREME COURT
ARTICLE 32(1) & (2) OF THE CONSTITUITON
WRIT PETITION NO.../2016

SAVE SOUTH WEST (SSW)..PROSECUTION

VS
SOMAVISHU AND OTHERS............DEFENDANT
NEHU NATIONAL MOOT COURT COMPETITION, 2016

MEMORIAL ON BEHALF OF THE PROSECUTION

COUNSEL APPEARING ON BEHALF OF PROSECUTION

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TABLE OF CONTENTS:
NAME:
1. INDEX OF AUTHORITY
I.
List of abbreviations.
II.
List of statutes.
III.
Lists of books and articles referred
IV.
Lists of internet sites
2.
3.
4.
5.
6.

STATEMENT OF JURISDICTION
STATEMENT OF FACTS
ISSUES INVOLVED
SUMMARY OF ARGUMENTS
BODY OF ARGUMENTS.
i.
Issue 1
ii.
Issue 2
iii.
Issue 3
7. PRAYER

PAGE NO:
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4-5
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7-10
11
12
13-37
13 -17
18-28
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INDEX OF AUTHORITY

I .LIST OF ABBREVIATIONS
PIL
NGO
A.I.R
H.P.
SCC
Sec.
ERC
SPM
RSPM
ILR
A.P
Art.
S.C
CNG
EPA
SPCB
CPCB
CrPC
Ker
UP

Public Interest Litigation

Non Government organisation
All India Reporter
Himachal Pradesh
Supreme Court Cases
Section
EIA Resource and Response Centre
Suspended Particle Matter
Respirable Suspended Particle Matter
Indian Law Reports
Andhra Pradesh
Article
Supreme Court
Compressed Natural Gas
Environmental (Protection) Act,
State Pollution Control Board
Central Pollution Control Board
Code of Criminal Procedure
Kerala
Uttar Pradesh

II. LIST OF STATUTES.

Constitution of India
Environmental Protection Act The Indian Forest Act, 1927
The Forest (Conservation) Act, 1980
The Scheduled Tribes and other Traditional Forest Dwellers Act, 2006
The Mines and Minerals Act, 1957
The Factories Act, 1948
Code of Criminal Procedure, 1973
Indian Penal Code, 1860
Water (Prevention And Control Of Pollution) Act 1974
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Stockholm Declaration, 1972

III. LISTS OF BOOKS AND ARTICLES REFERRED

Merriam Webster Dictionary

State of the Environment Report 2003 Mining and Quarrying
Survey of Environmental & Socio-Economic Impacts of Interim Ban on Mining in Goa

ERC, Goa, India

Indian Standard Guide for Treatment and Disposal of Steel Plant Effluents ( Second

Reprint AUGUST 1994)

Industrial Pollution The Water (Prevention and Control of Pollution) Act, 1974,

Asphyxiation of major rivers.

Constitution of India V.N. Shukla
Constitution of India M.P. Jain
Law of Torts R.K. Bangia
Environmental Law Dr. Sukanta K. Nanda
Environmental Law - Dr. S. C. Tripathi
Environmental Law - Dr. S.R. Myneni
Oxford dictionary

IV. LIST OF INTERENT SITES

www.environmentalnationalgeographic.com.
www.ipcc.ch
www.wikipesdia.org.
www.earthobservatory.nasa.gov.
www.yourarticlelibrary.com
www.freedictionary.com
www.planningcommission.nic.in
www.legalservicesindia.com.

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STATEMENT OF JURISDICTION:
The Honble Supreme Court of Somavishu has the jurisdiction to entertain the PIL filed by the
Save South West NGO under Article 32(1) & (2) of the Constitution.

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STATEMENT OF FACTS:
1. The region of Somavishu.
Somavishu is a country of many religions and ethnicity which has the shared history
of living together. It has 25 states and 9 union governed territories and each state
boundary is generally made either on the basis of regional language or regional ethnicity.
2. The South West Region of Somavishu.
That the South West Region of Somavishu is the region of utmost language and
ethnical diversity and it consists of 9 states. This region of Somavishu is known for its
scenic natural beauty, diversified cultures and diversified cuisine. This region is mostly
comprised of many communities of tribal populations living there from times
immemorial. This whole region is comprised of hills, forests and many fast flowing
rivers. Though the area of this region comprised of only 5% of the total geographical area
of Somavishu but it consists of more than 30% of its forest cover.
3. The Region of Suhamo.
Suhamo was situated on the high altitudes in the central part of the Mutalia. It is also
the origin point of three important rivers of the state Mutalia; one is Sinasi, second is
Rikang and third is Purug. These rivers emanates from the lake Sulaom in three different
directions. Lake Sulaom was situated on the highest altitudes of the southwest region.
Though this lake was part of the district Suhamo but it remained uninhabitable in winter
due to its geographical location. Almost all the cities of the state Mutalia were situated on
one or other of these three rivers. Suhamo was situated on the river Sinasi and this river is
the important source of water for Suhamo city.
4. Suhamo and its Population.
. The people of Suhamo and Mutalia has worshipped the Lake Sulaom and the three
rivers emanating from it since time immemorial and the lake and these rivers are
religiously very important to the people living there. In fact an annual pilgrimage is made
by the local population to Lake Sulaom on a day that generally falls in May and almost
one tenth of the population of Mutalia visit Sulaom on this auspicious day. This day is
always declared a holiday by the State Government. The lake Sulaom and these rivers
form an indispensible part of the religion of people of Mutalia and Suhamo.
Around 80% of the people of Suhamo live in the district headquarter of Suhamo city
which is the first human habitation in the course of river Sinasi. The people of Suhamo is
very much dependent on river Sinasi for water in day to day purposes and the river means
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a lot to them both in temporal and religious senses. Only 30% population of Suhamo city
has tap water connectivity and rest 70% population directly use the water of river Sinasi
for their day to day purposes.
Also the fish X of river Sinasi has also been the basic source of protein and other
important nutrients of the population of Suhamo city. Fish X are the specificity of only
the three rivers of the region that emanate from Lake Sulaom. Except the water of rivers
Sinasi, Rikang and Purug, no other rivers of the region have fish X in such abundant
quantity. Fish X serves as one of the staples of the people of Suhamo.
The literacy rate of people of Suhamo city is only 25%.
5. Government plan of excavation and Steel industry
In 1980, the central government of Somavishu conducted a geological survey in
the whole of the country to assess the presence of natural resources. This survey indicated
the presence of iron and other valuable minerals in the south west region of the country.
In the subsequent years, the planning has been made to extract these natural resources. As
per this plan, the excavation was to start from a district Suhamo in the state Mutalia and
then subsequently it was to be expanded in other districts and states of this region. This
plan was made by the committee constituted by the Central Government of Somavishu
and it was consisted of eminent engineers, environmentalist and other notable
personalities of the region. This plan has also indicated the probable environmental
consequences and suggested that environmental effects of the excavation in Suhamo
should be appraised before undertaking any expansion of the excavation activities in the
region. However, neither there was any communication of such to the people of Suhamo
nor were there any reports of such appraisal anywhere.
However, according to the above mentioned plan, the central government of
Somavishu started excavation of these mineral resources in district Suhamo in 1990.
Large swathes of forest lands were cleared to make this excavation possible. In addition
to the above mentioned plan, an iron and steel industry was also established in 1997 to
make steel and other related materials from the extracted iron ores. The large chunk of
water of the river Sinasi near its origin point has been diverted to fulfil the demands of
the water for this industry.
6. After the inception of excavation activities and establishment of steel and iron
industry.
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The government has set up a water purification plant to treat the used water of steel
industry that never worked properly. The local news papers have reported many instances
when the untreated water from the steel industry had been allowed to go into river Sinasi.
The government authorities related to the steel industry have sometimes also accepted
this fact and pleaded some technical reasons for the instances. The nearby forest areas
have also been cleared to dump other garbage resulting from this industry.
From 1998 to 2015, there are almost 50 such instances where foul water from the iron
industry got merged in river Sinasi. On such occasions, the water of river Sinasi turned
full of dead aquatic creatures, its colour changed and it became full of bad odour. During
these days, the most of the people of Suhamo city have to depend on the water from some
natural springs or natural lakes that are located quite far away from the city for their basic
water needs.
There has also been the increase in the number of water borne diseases in Suhamo
city and adjoining areas and from 2000 to 2015, there has been 20000 reported cases of
such diseases only in Suhamo city and almost 1000 deaths have also been reported during
such period from these diseases.
This period has also witnessed substantial fall in the number of fish X in river Sinasi
and by 2015, these fishes have only been in vogue for their scant presence in Sinasi. This
has also caused great deficiencies in protein and other nutritional intake of the population
of Suhamo city and resulted in massive malnutrition. As per the published reports in news
paper that is based on the study of World Environmental Forum (a reputed environmental
NGO), the basic reason for these diseases is mixing of untreated water of iron industry
into river Sinasi. This study has also pointed out that the released water from water
purification plant lacks in essential component of mineral Y of original water of river
Sinasi that is the specificity of the rivers originating from Lake Sulaom. It has indicated
that this may be the one of the reasons for the extinction of Fish X from river Sinasi.
The water of other natural lakes and streams situated in other parts of district Suhamo
has also started to change its colour and taste from 2010 onwards and some of these lakes
and springs have also turned barren by 2014. This whole situation has created a great
existential threat for the people of Suhamo.
7. Government steps.
The central government of Somavishu with the help of state government of Mutalia has
come with the idea of supplying tap water to each and every household of Suhamo in
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December 2014 and this has to be completed by end of 2017. But, no other plan has been
made to restore the pristine natural condition of river Sinasi and adjoining areas.
8. Steps By Save South West a Local NGO
Taking in the concern of the local people and their plight a local NGO, named Save
South West (SSW) has organized a protest march on 10th August 2015 in Suhamo
district against the environmental degradation of the region and submitted memorandum
of demands to the District Magistrate. The memorandum demanded:
Firstly, that all the excavation works should immediately stop in the district Suhamo
and no further expansion of such activities should be considered. Secondly, that the steel
industry established in district Suhamo should be closed immediately and no water
should be taken from river Sinasi for any other purposes than its traditional use. Thirdly,
that the central and state governments should immediately prepare a plan for restoration
of natural pristine beauty of district Suhamo. Fourthly, that the government should pay
compensation to the peoples or their nearest relatives who have been affected by any of
the water borne disease in Suhamo city since the establishment of steel industry and also
the government should provide nutritional care free of cost to all the population of
Suhamo city till the abundance of fish X in the river Sinasi is achieved.
However, the state and central governments ignoring the plight of the people have
turned a blind eye to them and denied these demands and asserted that it will not stop any
excavation or steel industry activities. It has also taken no steps to address the problems
of the people of Suhamo. The governments have dismissed the valid concerns of the
people and dismissively given the reason that the global climate change and more than
50% shortage in rainfall in this region during 2000 to 2014 may be the reason behind all
these environmental losses.
ISSUES INVOLVED.
1. WHETHER THERE IS ANY LINKAGE BETWEEN THE ENVIRONMENTAL
LOSES AND DEGRADATION/POLLUTION AND THE EXCAVATION
ACTIVITIES AND ESTABLISHMENT OF IRON AND STEEL INDUSTRY?
2. WHETHER THE STATE AND THE CENTRAL GOVERNMENT SHOULD STOP
ALL EXCAVATION ACTIVITIES AND CLOSE THE STEEL INDUSTRY AND BE

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RESPONISBLE FOR THE RESTORATION OF NATURAL PRISTINE BEAUTY
OF SUHAMO?
3. WHETHER THE STATE AND THE CENTRAL GOVERNMENT SHOULD PAY
COMPENSATION AND FREE NUTRITIONAL CARE FOR THE PEOPLE IN
SUHAMO WHO WERE AFFECTED?

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SUMMARY OF ARGUMENTS
1. WHETHER THERE IS ANY LINKAGE BETWEEN THE ENVIRONMENTAL
LOSES AND DEGRADATION/POLLUTION AND THE EXCAVATION
ACTIVITIES AND ESTABLISHMENT OF IRON AND STEEL INDUSTRY?
Ans. Yes, there is linkage between the environmental loses and degradation/pollution
and the excavation activities and establishment of iron and steel industry as can be
established through the fact sheet and consequences of the nature of activities and the
current scenario in the present day.
2. WHETHER THE STATE AND THE CENTRAL GOVERNMENT SHOULD STOP
ALL EXCAVATION ACTIVITIES AND CLOSE THE STEEL INDUSTRY AND BE
RESPONISBLE FOR THE RESTORATION OF NATURAL PRISTINE BEAUTY
OF SUHAMO?
Ans. Yes, the state and the central government should stop all excavation activities
and close the steel industry and be responsible for the restoration of natural pristine
beauty of Suhamo as the definition of State makes it binding for them to be responsible
and also the fundamental rights of the people were violated. The Government is also
responsible because of the violation of environmental principles, different legislations and
international conventions. It is also responsible for its breach of legal duty and creating a
public nuisance.
3. WHETHER THE STATE AND THE CENTRAL GOVERNMENT SHOULD PAY
COMPENSATION AND FREE NUTRITIONAL CARE FOR THE PEOPLE IN
SUHAMO WHO WERE AFFECTED?
Ans Yes, the state and the central government should pay compensation and free
nutritional care for the people in Suhamo who were affected because the losses incurred
posed an existential threat to the people of Suhamo and the steps taken by the
Government were insufficient and inadequate. The Government is also liable to pay
compensation because it is responsible for it under tort and environmental principles and
due to its breach of legal duties
BODY OF ARGUMENTS:
ISSUE 1:
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1. WHETHER THERE IS ANY LINKAGE BETWEEN THE ENVIRONMENTAL
LOSES AND DEGRADATION/POLLUTION AND THE EXCAVATION
ACTIVITIES AND ESTABLISHMENT OF IRON AND STEEL INDUSTRY?
Yes, there is linkage between the environmental loses and degradation/pollution and the
excavation activities and establishment of iron and steel industry as because
1.1 The fact sheet provides that since the inception of these activities there has been
environmental loses.
The South West Region Somavishu is comprised of only 5% of its geographical area;
however it consists of more than 30% of its forest cover and is the home of many
communities of tribal populations living there from times immemorial.
Since the inception of excavation activities in Suhamo in 1990 and the establishment of
iron and steel industry in 1997:a. Large swathes of forest land were cleared to make excavation activities possible and also
nearby forest areas of the steel and iron industry have also been cleared to dump other
garbage resulting from the industry leading to deforestation.
b. Large chunk of the water of the river Sinasi, which originates from Lake Sulaom at
Suhamo itself, has been diverted to fulfil the needs for these activities and industry.
c. In many reported instances the untreated water from the steel industry has been allowed
to go to river Sinasi from the water purification plant established to treat used water from
the industry, which has never worked properly.
d. From 1998 to 2015, there are almost 50 such instances where foul water from the iron
industry got merged in river Sinasi and on such occasions, the water of the river Sinasi
turned full of dead aquatic creatures, its colour changed and it became full of bad odour.
e. From 2000 to 2015 there were 20000 reported cases of diseases only in Suhamo city and
almost 1000 deaths from those diseases. There has been also increase in the number of
water borne diseases in Suhamo city and adjoining areas.
f. This period has also witnessed substantial fall in the number of fish X in river Sinasi and
by 2015, these fishes have only been in vogue for their scant presence in Sinasi.
g. The water of other natural lakes and streams situated in other parts of district Suhamo
has also started to change its colour and taste from 2010 onwards and some of these
lakes and springs have also turned barren by 2014.
1.2. Deforestation leads to environmental degradation and environmental losses.

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Clearing out large areas of forests without repairing or restoring it back to its original
state leads to deforestation1. In Suhamo as evidenced by the fact sheet, the forests cleared
were used for non forestry purpose i.e. for excavation activities and for industry purposes and
has not been regenerated; thus leading to the consequences of deforestation.
According to Intergovernmental Panel on climate change deforestation could account for
up to a third of total anthropogenic carbon dioxide emissions2, which is a greenhouse gas3
and is one of the major contributors of global warming and global climate change and also
affecting the rainfall in a place or area4. One of the most serious consequences of
deforestation is a loss of biodiversity and displacement of indigenous communities.
Deforestation leads to stress of environmental change which may make some species more
susceptible to the effect of insects, pollution and diseases5. In Suhamo as evidenced by the
fact sheet we see more than 50% shortage in rainfall in the region during 2000 -2014 (after
the establishment of industry) as a consequence of deforestation, resulting in the
environmental losses and degradation and pollution.
Environmental Pollution: Environmental Pollution is presence of substances injurious to the environment i.e. in
land, water, air, soil, etc. and environmental degradation is pollution of the natural
environment.
According to Sec 2(c) of The Environment (Protection) Act, 1986 environmental
pollution means the presence in the environment of any environmental pollutant.
Reproducing Sec 2(b) of The Environment (Protection) Act, 1986 environmental
pollutant means any solid , liquid or gaseous substance present in such concentration as may
be or tend to be injurious to the environment;

1 Deforestation - www.environment.nationalgeographic.com.
2 Deforestation- www.ipcc.ch
3 Greenhouse gas www.ipcc.ch
4 Tropical deforestation Climate change www.earthobservatory.nasa.gov.
5 Deforestation in India: Causes and consequences of Deforestation in India -By Puja Mondal
www.yourarticlelibrary.com
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Reproducing Sec 2(a) of The Environment (Protection) Act, 1986 environment
includes water, air and land and the inter-relationship which exists among and between water,
air and land, and human beings, other living creatures, plants, micro-organism and property
1.3 Excavation activities and industrial activities impacts and degrades/pollutes the
environment.
1.3.1. Excavation is the process of excavating i.e. uncovering by digging away and
removing the earth that covers it6 and mining7 poses a serious environmental threat. One of
the consequences of mining in high altitudes is the erosion of exposed hillsides, mine dumps,
resultant siltation of drainages, creeks and rivers which can significantly impact the
surrounding areas like the giant Ok Tedi Mine in Papua New Guinea. In forest or wild areas
mining can cause disturbance and destruction of ecosystems 8 as evidenced in Suhamo.
1. The environmental impact of excavation includes erosion and contamination of soil,
surface and ground water by chemical from mining processes which can result in
unnaturally high concentration of some chemicals such as arsenic, sulphuric acid over a
significant area of surface of water and in water9. Iron mining release pollutants such as
chlorides, ferrous sulphate, ferric hydroxide, sulphuric acid , hydrogen sulphide,
suspended solids, etc10 into water causing acid mine drainage11.From this it can be
established that change in the odour and taste in natural lakes and streams in Suhamo has
been due to chemical contamination leading to environmental degradation.
2. Mining causes destruction of habitat of aquatic animals by direct poisoning caused by
extracted material12, in this case iron ore and species extinction by contamination of
6 Excavation - Merriam Webster Dictionary
7 Mine www. thefreedictionary.com
8 State of the Environment Report 2003 Mining and Quarrying
9 ibid
10 id
11 Consequences of mining www.wikipedia.org
12 ibid
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ground and surface water by chemical if there is a high level of local endemism13 as in the
case of Fish X which slowly got depleted from Suhamo.
3. Mining also causes soil erosion and destruction of hills and scenic natural beauty.
On a survey report on mining and quarrying in the State of Karnataka14 it was found that
mining and quarrying activities lead to problems like land degradation, degradation of forests
and decrease in biodiversity, surface water pollution, air pollution due to SPM and RSPM and
environmental degradation. Also in Goa as by survey report of ERC15 onslaught of mining has
left rivers and agricultural lands silted. In the case of Rural Litigation and Entitlement
Kendra, Dehradun v State of Uttar Pradesh16 the court found that mining operations had
adverse ecological effects. Also in Kinkri Devi v State of Himachal Pradesh17 that mining
was causing gross damage to the hills as also the people living in the area.
Thus it can be said that the excavation or mining of ores in Suhamo has caused
environmental degradation.
1.3.2 Industries are a serious threat to the environment. Industries are one of the major causes
of environmental degradation and pollution and causes air, water, soil, land, etc pollution18.
Industrial discharges causes acidity in the water and effluents or chemical waste causes
water pollution. Waste water from a steel plant can cause water pollution on the following
aspects:
a. Suspended solids (scale, sand, burden fines, fly ash, coal, coke, etc);
b. Heat (cooling water, boiler blowdown etc);
c. Oil (rolling mill oils, lubricants, hydraulic oils, quench oil, fuel oil, solvents, tar, pitch,
etc);
d. Chemicals (pickle liquor, acid sludge, caustic wash, lime, brine cleaners, spent
ammoniacal[ ammonia (NH3)] liquor, toxic chemicals, boiler blow-down, etc); and
13 Endemism Oxford Dictionary
14 State of the Environment Report 2003 Mining and Quarrying
15 Survey of Environmental & Socio-Economic Impacts of Interim Ban on Mining in Goa ERC, Goa,
India
16 [(1985) 2 SCC 431]
17 A.I.R. 1988. H.P. 4.
18 Environmental Law Dr. Sukanta. K. Nanda
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e. Sanitary wastes (domestic sewage from change rooms, toilets, canteen, etc).
The steel plant waste, therefore, may cause sedimentation on the bed of the receiving
water course or may be injurious to aquatic life, and render water sources unfit for human
consumption as well as for industrial use19. It is thus evident that in Suhamo, where untreated
water from the industry was released in many instances that there has been water pollution20
and also considerable harm to river Sinasi and injury and death of the aquatic animals there
and thus environmental degradation in the region. Thus taking in the waterborne diseases in
Suhamo since the establishment of the industry, it can be said that the effluents released by
the industry in river Sinasi are the cause of health hazards to human21 and the cause of the
diseases and death in Suhamo. Pressures due to discharges of highly complex wastes from
industries have resulted in considerable degradation in the quality of water sources.
Indication of these deteriorations includes depletion of oxygen, excessive presence of
pathogens, bad odour, etc.22
In the case of Vellore Citizens Welfare Forum v Union of India23 the enormous discharge
of untreated effluents by tanneries was deemed pollution and the Supreme Court held that
such industries, though are of vital importance to the countrys development but they cannot
be allowed to destroy the ecology, degrade the environment and pose a health hazard.
In the case T. Rama Krishan Rao v The Chairman, HUDA & Others24, the Andhra
Pradesh High Court said that water pollutants are of two kinds, i.e. Conventional water
pollutants and Non-Conventional Water pollutants. Chemical and industrial pollutants which

19 Indian Standard Guide for Treatment and Disposal of Steel Plant Effluents ( Second Reprint
AUGUST 1994)
20 Water pollution Dr .S.R Myneni
21 Industrial Pollution The Water (Prevention and Control of Pollution) Act, 1974, Asphyxiation of
major rivers
22 India 2025 Environment Shaheen Singhal - www.planningcommission.nic.in
23 [(1996) 5 SCC 560]
24 ILR (2001) 2. A.P 186 (DB)
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are thrown or diverted into water channels like rivers and lakes, etc were held to be nonconventional water pollutants.
1.4. Current Scenario in India
The rivers Sabarmati, Sutlej, Yamuna, Godawari, Gomti, Kali, etc. are currently highly
polluted because of domestic and industrial waste25. Also mining activities in Karnataka26 and
Goa27 have greatly contributed to environmental degradation and pollution in those places.
Thus it can be said that there is linkage between the environmental loses and
degradation/pollution and the excavation activities and establishment of iron and steel
industry in Suhamo and South West Region of Somavishu.

ISSUE 2
WHETHER THE STATE AND THE CENTRAL GOVERNMENT SHOULD STOP
ALL EXCAVATION ACTIVITIES AND CLOSE THE STEEL INDUSTRY AND BE
RESPONISBLE FOR THE RESTORATION OF NATURAL PRISTINE BEAUTY OF
SUHAMO?
2.1 The definition of the term state makes it binding on them to be responsible for
the restoration:
The activities of excavation and establishment of iron and steel industry was an initiative
of the Central government of Somavishu. This plan was made by the high level committee
constituted by the Central Government of Somavishu and it was consisted of eminent
engineers, environmentalist and other notable personalities of the region.
Art 12 gives an extended significance to the term state. Art 12 clarifies that the term state
occurring in art 13(2) or any other provision concerning fundamental rights has an expansive
meaning.
Reproducing Art 12:
According to Art 12, the term State includes:
25 India 2025 - Environment Shaheen Singhal - www.planningcommission.nic.in
26 State of the Environment Report 2003 Mining and Quarrying
27 Survey of Environmental & Socio-Economic Impacts of Interim Ban on Mining in Goa ERC, Goa,
India
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1) The Government and the Parliament
2) The Government and the Legislature of a state;
3) All local authorities; &
4) Other authorities within the territory of Nation, or under the control of the Central
Government.
The actions of any of the bodies comprised within the term State as defined in Art 12 can
be challenged before the courts under Art 32 on the ground of violation of fundamental rights.
Also reproducing Art 32
Reproducing Article 32 of the Constitution:
Remedies for enforcement of rights conferred by this Part. - (1) The right to move the
Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this
Part is guaranteed.
..........................
...........................
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this constitution.
Article 32 is the key provision as it gives teeth to the fundamental rights and makes it
justifiable28. The effect of the Article is that the fundamental rights is available against the
Government and makes it liable for infringement of them. Since due to those excavation
activities along with the establishment of iron and steel industry caused existential threat to
the livelihood of the people of Suhamo, violating their basic right to life.
2.2 Fundamental rights of the people of South West Region were violated
The South West Region of Somavishu was mostly comprised of many communities of tribal
population whose fundamental rights were violated by the government decisions.
ART. 14 states: The states shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.
The right to equality may also be infringed by government decisions that have an impact on the
environment. An arbitrary action must necessarily involve a negation of equality, thus urban

28 Constitution M.P. Jain

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environmental groups often resort to Art.14 to quash arbitrary municipal permission for
construction that are contrary to development regulations.
2.2.1. Right to life and liberty (Article 21)
Article 21 states that:"No person shall be deprived of his life or personal liberty except
according to procedure established by law."
In Maneka Gandhi v Union of India, the Supreme Court while elucidating on the importance
of the right to life under Art. 21 held that the right to life is not confined to mere animal
existence, but extends to the right to live with the basic human dignity. (Bhagwati J.)
2.2.1.1 Violation of the right to water needed by the people
The right to water is a basic need of the people and has been held as a fundamental right
under Article 21 of the Constitution.
In APPCB v M.V Nayudu29 the Supreme Court held, Water is the basic need for the
survival of human beings and is part of the right to life and human rights as enshrined in Art 21
of the Constitution of India.
In Suhamo, around 70% of the people use water from river Sinasi for their day to day
purposes since they do not have access to tap water and the river Sinasi is very important to
them. However, for use industrial purposes a large chunk of river Sinasi was diverted to fulfil its
demands. Since river Sinasi originated from Lake Sulaom in Suhamo, any harm caused to river
Sinasi would not only hamper the rights of people of Suhamo (which is the first human
habitation in the course of the river) but also other human habitations in the course of the river.
Access to drinking water is the fundamental right of the people as it the basic need of people
and is very important for the survival of human beings. However due to the diversion of water of
river Sinasi there is scarcity of water for the people of Suhamo, which is why the people had to
depend on the water from natural springs or natural lakes located far away from the city.
However, even some of these lakes and springs have turned barren by 2014. Thus, it can be said
that there was scarcity of drinking water of the people. Hence we can say that there was violation
of the fundamental right of the people to access drinking water. And it is a consequence resultant
of establishment of steel and iron industry by the government.

29 [ 2001 (2) SCC 62]

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Not only that due to release of effluents from the industry and untreated used water into river
Sinasi in many instances, there has been water pollution which has made the water inconsumable
and contaminated it.
In Rajiv Ranjan Singh alias Lallan Singh v State of Bihar & Others30, it was held that
contamination of water resources amounts to violation of fundamental rights.
In Santosh Govind Mahajan v State of Maharastra31, the Bombay High Court was of the
view that the citizens right to access clean water is a fundamental right and the State is bound to
supply portable water to the citizens.
In a number of districts of India, Coca Cola company and its subsidiaries are accused of
creating severe water shortages for the community by extracting large quantities of water for
their factories, affecting both the quantity and the quality of water .The village council
consideration to revoke of the license to be necessary in order to protect the interests of local
people was challenged in the High Court of Kerala.
In the Palachimada case32 the Court recognised that the State as a trustee is under a
legal duty to protect natural resources. It is considered that these resources, meant for public use,
cannot be converted into private ownership. Justice Balakrishnan Nair asserted that, ..... it can
be safely concluded that the underground water belongs to the public. The state and its
instrumentalities should act as trustees of this great wealth. The state has got a duty to protect
ground water against excessive exploitation and the inaction of the state in this regard will
tantamount to infringement of the right to life of the people guaranteed under article 21 of the
constitution of India.33
Thus, it can be said that there has been violation of the fundamental right to access water for
the basic needs of people. Thus, the government can be held liable for violation of the
fundamental rights
30 A.I.R. 1992 Pat. 86 (DB)
31 2012 (3) FLT 56
32 Preumatty Grama Panchayat v. State of Kerala ( 16 December 2003)
33 Environmental Laws and Constitutional Provisions In India- by Rudra Advocate at High Court
Calcutta-www.legalservicesindia.com
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2.2.1.2 Right to Wholesome and healthy environment:
Right to Wholesome Environment is a fundamental right guaranteed under Art 21.
In Suhamo, this right was being curtailed due to the situation that was prevailing in the region
since the inception of those excavation activities and establishment of the iron and steel industry.
Due to these activities there was pollution of air, water, etc in Suhamo causing environmental
pollution and degradation. There was also release of hazardous pollutant into the environment
affecting the wholesomeness of the environment. Polluted environment is an unhealthy
environment.
In F.K Hussain v Union of India34, the Court observed that right to sweet water and the right to
free air are attributes of the right to life under Article 21.
Since due to affect of government activities ,peoples right to wholesome and healthy
environment has been violated therefore government is liable for it and such activities should be
stopped immediate as due to such activities peoples fundamental right has been infringed.
2.2.1.3 Right to enjoyment of healthy life:
Due to the environmental pollution and degradation caused by the excavation activities
and the steel and iron industry, there have been health issues for the people of Suhamo.
The people of Suhamo have been having diseases because of polluted water of river Sinasi,
which is the most important source of water in Suhamo and which has been traditionally used
by its people for day to day purposes. From 2000 to 2015 there were 20000 reported cases of
diseases only in Suhamo city and almost 1000 deaths from those diseases. There has been also
increase in the number of water borne diseases in Suhamo city and adjoining areas. It can be
hence inferred that these activities are creating health hazards for people and thus it is harming
their right to live a life of good health.
In the very recent case of T.N. Godavarman Thirummulped v. Union of India35, a case
concerning conservation of forests, Justice Y.K. Sabharwal, held: Considering the compulsions
of the States and the depletion of forest, legislative measures have shifted the responsibility from
States to the Centre. Moreover any threat to the ecology can lead to violation of the right of

34 A.I.R. 1990 Ker 321

35 2012(3) SCC 277
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enjoyment of healthy life guaranteed under Art 21, which is required to be protected. The
Constitution enjoins upon this Court a duty to protect the environment.
Also due to these activities there was extinction of Fish X in river Sinasi, which is the
basic is the basic source of protein and other important nutrients of the people of Suhamo. A
study of World Environmental Forum pointed out that the released water from water purification
plant lacks in essential component of mineral Y which can be considered one of the reasons for
extinction of Fish X. This has caused deficiencies in protein and other nutritional intake in
population of Suhamo and resulted in massive malnutrition, thus harming their right to lead a
healthy life.
2.3. There was breach of duty on the part of the states role in protecting the environment.
To protect and improve the environment is a constitutional mandate. It is the commitment for
a country wedded to the ideas of a welfare State. The constitution contains specific provisions for
environmental protection under the chapters of Directive Principles of the State Policy and
Fundamental Duties. The absence of any specific provision in the Constitution recognising the
fundamental right to (clean and wholesome) environment has been set off by judicial activism in
the recent times.
Under Article 48A:
A global adaption consciousness for the protection of the environment in the seventies
prompted the Government to enact the 42nd Amendment (1976) to the Constitution. The said
amendment added Article 48A to the Directive Principles of State Policy. It Declares:The State shall endeavour to protect and improve the environment and to safeguard the
forests and wildlife of the country
The Andhra Pradesh High Court in T. Damodar Rao v S.O. Municipal Corporation,
Hyderabad36 and the High Court of Himachal Pradesh in Kinkri Devi v State37 interpreted the
Article 48A as imposing an obligation on the government including courts, to protect the
environment.
36 AIR 1987 A.P. 171.
37 AIR 1988 H.P. 4
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Thus the Government itself engaging in activities causing environmental pollution breaches
its duty and obligation to protect the environment and hence it is liable to restore the
environment and stop all activities that harm the environment.
In L.K Kollwal vs. State of Rajasthan38, a simple writ petition by citizens of Jaipur
compelled the municipal authorities to provide adequate sanitation. The court observes that when
every citizen owes a constitutional duty to protect the environment (Art.51A), the citizen must be
also entitled to enlist the courts aid in enforcing that duty against recalcitrant State agencies. The
Court gave the administration six month to clean up the entire city, and dismissed the plea of lack
of funds and staff.
The Public Trust Doctrine, evolved in M.C. Mehta v. Kamal Nath39, states that certain
common properties such as rivers, forests, seashores and the air were held by Government in
Trusteeship for the free and unimpeded use of the general public. Granting lease to a motel
located at the bank of the River Beas would interfere with the natural flow of the water and that
the State Government had breached the public trust doctrine.
A matter regarding the vehicular pollution in Delhi city, in the context of Art 47 and 48 of the
Constitution came up for consideration in M.C. Mehta vs. Union of India 40(Vehicular Pollution
Case). It was held to be the duty of the Government to see that the air did not become
contaminated due to vehicular pollution. The Apex court again confirming the right to healthy
environment as a basic human right stated that the right to clean air also stemmed from Art 21
which referred to right to life. This case has served to be a major landmark because of which
lead-free petrol supply was introduced in Delhi. There was a complete phasing out old
commercial vehicles more than 5 years old as directed by the courts. Delhi owes its present
climatic conditions to the attempt made to maintain clean air.
The Ganga Water Pollution case: M C Mehta V. Union of India41,
38 A I R 1988 Raj 2, 1987 (1) WLM 134
39 (1997 ) 1 SCC 388
40 AIR 1988 SC 617
41 AIR 1988, SC 1037
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The owners of some tanneries near Kanpur were discharging their effluents from their factories
in Ganga without setting up primary treatment plants. The Supreme Court held that the financial
capacity of the tanneries should be considered as irrelevant while requiring them to establish
primary treatment plants. The Court directed to stop the running of these tanneries and also not to
let out trade effluents from the tanneries either directly or indirectly into the river Ganga without
subjecting the trade effluents to a permanent process by setting up primary treatment
In the very recent case of T.N. Godavarman Thirummulped v. Union of India42, a case
concerning conservation of forests, Justice Y.K. Sabharwal, held: Considering the compulsions
of the States and the depletion of forest, legislative measures have shifted the responsibility from
States to the Centre. Moreover any threat to the ecology can lead to violation of the right of
enjoyment of healthy life guaranteed under Art 21, which is required to be protected. The
Constitution enjoins upon this Court a duty to protect the environment.
So from the abovementioned cases it is evident that in this instant case the fundamental
rights of the people were violated and Government breached its duty to protect the environment
for which it is responsible for restoration since in this instant case the Government itself is the
polluter.
2.4 Environmental Pollution:
As Stated earlier, there has been environmental pollution and degradation in Suhamo due to
excavation activities and industrial activities and Right to a pollution free environment, pollution
free air, water, soil, etc is a fundamental right. Thus these activities harm the public interest and
should be stopped and plan for restoration should be made in the interest of the public welfare.
Salus Populi Suprema Lex or The health, safety and welfare of the people are the supreme
law. Accordingly to this maxim which has been enforced in courts, the welfare of the people
should always be the first concern and the supreme law. Anything detrimental to welfare of
public should be stopped. The activities in Suhamo are harming the welfare of the people by
creating an unbalanced environment that is polluted and is thus liable to be stopped.
Also restoring the scenic beauty of Suhamo should be restored in public interest.

42 2012 (3) SCC 277

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In Mehta M.C v Union of India43 , the SC directed 168 industries, which are considered to be the
main cause of environmental degradation in the capital to be closed and cannot be permitted to
operate and function in Delhi.
In Vellore Citizens Case44 , the SC directed 162 tanneries in Tamil Nadu to be closed down
because they were polluting air and the water around the area where they were operating and the
water had been unworthy for drinking.
In the Aravalli Case, the SC allowed the State to revoke all mining leases due to the large scale
devastation of Aravalli Hills due to mining.
Thus in the above cases we can see that due to devastation and pollution of environment, the
concerned activities was directed to be stopped. Thereby, it can be said that in larger public
interest it can be it can be said that the state and the central government should stop all
excavation activities and close the steel industry and be responsible for the restoration of natural
pristine beauty of Suhamo.
2.5 The Government would be also liable for violating various principles on environment
With a view to protecting and improving the environment, different legislations have been made
and different regulations, rules have been issued. The Government, through its Ministry of
Environment and Forests is administering and has enacted nationwide comprehensive laws.
2.5.1 Violation of the concept of Sustainable Development:
The concept of Sustainable Development means an integration of development and environment
Imperative it means development in harmony with environmental consideration. To be
sustainable, development must possess both economic and ecological sustainability. It is a
development process where exploitation of resources, direction of investment, orientation of
technology development and institutional changes are all in harmony. Sustainable development
also implies local control over the resource use, and is the only path for conserving and
promoting socio-economic wellbeing in a democratic form.
The Supreme Court has laid down that the "Precautionary principle" and the "Polluter Pays
Principle" is essential features of "sustainable development". These concepts are part of
Environment Law of the country.
43 AIR 1996 SC 2231
44 supra
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The essential ingredients of the precautionary principle are:
(i) Environmental measures- by the state government and the statutory authorities- must
anticipate, prevent and attack the causes of environment degradation.
(ii) When there are threats of serious and irreversible damage, lack of scientific certainty should
not be used as a reason for postponing measure to prevent environmental degradation.
(iii) The Onus of Proof is on the actor or the developer/industrialist to show that his action is
environmentally benign.
(iv) Precautionary duties must not only be triggered by the suspicion of concrete danger but also
by concern or risk potential.
In the instant it was observed that, the plan of excavation and industry indicated the probable
environmental consequences. Further the committee appointed by the govt suggested
environmental effects of the excavation in Suhamo should be appraised before undertaking any
expansion of the excavation activities in the region. But the govt paid no heed to it.
The state and central governments have asserted that it will not stop any excavation or steel
industry activities till it gets substantial evidence of any linkages between these activities and
environmental degradation. So it observed that even there was apprehension of environmental
loss, the govt was grossly negligent on its part on taking preventive measures.
In M.C. Mehta v Union of India (CNG Vehicle Case)45
The Supreme Court observed that any auto-policy framed by the Government must, therefore,
of necessarily conform to the constitutional principles well as overriding statutory duties cast
upon the government under the EPA. The auto policy must adopt a precautionary principles and
make informed recommendations which balance the need to protect the environment.
The polluter pays' principle as interpreted by the Court means that the absolute liability for harm
to the environment extends not only to compensate the victims of pollution but also the cost of
restoring the environmental degradation.
In other words, Polluter should bear the cost of pollution as the polluter is responsible for
pollution. The principle demands that financial costs of preventing or remedying damage caused
by pollution should lie with the undertakings which cause pollution. It may be noted that the
polluter pays principle evolved out of the rule of absolute liability as laid down by the apex
court in Sriram Gas Leak Case
45 (AIR 2002 SC 1696)
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Hence it is the government who is liable for the restoration of the environmental loses.
Vellore Citizens Case:46
In a landmark judgment43 where the principle of sustainable development has been adopted
by the Supreme Court as a balancing concept, while rejecting the old notion that development
and environmental protection cannot go together, the apex court held the view that sustainable
development has now come to be accepted as a viable concept to eradicate poverty and improve
the quality of human life while living within the carrying capacity of the supporting eco system.
Thus, pollution created as a consequence of development must be commensurate with the
carrying capacity of our ecosystem.
However, in Suhamo there was no balance between development and environment as there
was significant environment degradation that violated the fundamental rights and caused deaths.
Hence, there was no sustainable development.
2.6. Violation of international conventions ratified by the country
The state of Somavishu has ratified to the 1972 Stockholm Declaration which affirms that "Man
has the fundamental right to freedom, equality and adequate conditions of life, in an environment
of quality that permits a life of dignity and well-being, and he bears a solemn responsibility to
protect and improve the environment for present and future generations..." This shows that it has
been internationally recognized that man's fundamental rights embraces the need to live in an
uncontaminated environment but it also puts forth man's obligation to protect the environment
for posterity.
So the government is also liable for the violation of international conventions.
2.7. Violation of legislation:
According to the Water (Prevention and Control of Pollution) Act 1974
It prohibits discharge of pollutants into water bodies beyond a given standard and lays down
penalties for non-compliance with its provisions.
It set up the Central Pollution Control Board (CPCB) which lays down standard for the
prevention and control of water pollution. At the state level, the State Pollution Control Board
(SPCB) functions under the direction of CPCB.

46[( 1996) 5 SCC 560]

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The functions of CPCB have been laid down in section 16 whereas the functions of SPCB has
been laid down in section 17.The sampling of effluents for test has been laid down in section 21.
2.8. The Government is liable for causing Public nuisance
The environmental degradation in Suhamo due to the excavation and industrial activities is
harming the environment and causing danger to the lives of the people of Suhamo. Nuisance is
acts interfering with the comfort, health or safety of the individuals. As evidenced above the
excavation activities and establishment of the steel industry has threatened the very existence of
the people in Suhamo and caused danger and injury to the people. It is going against the peaceful
living of the people and going against their health. Thus the excavation and industrial activities
being undertaken by the Defendant makes them guilty of Public Nuisance.
Public nuisance is defined in section 268 of the Indian penal code, 1860 as follows:
A person is guilty of a public nuisance who does any act or is guilty of an illegal omission
which causes any common injury, danger or annoyance to the public or to the people in general
who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction,
danger or annoyance to persons who may have occasion to use any public rights.
A common nuisance is not excused on the ground that it causes some convenience or advantage.
Thus the Defendant can be held liable for civil as well as criminal wrong for nuisance under
Section 133 of the CrPC.
In Deshi Sugar Mill v Tupsi Kahar47, the law of public nuisance contained in Sec. 133 of
the CrPC was used as early in 1926 for the purpose of the protection of the environment. On the
request of about a hundred people, the sub-divisional magistrate ordered that the two sugar mills
in the locality should discontinue draining dirty and toxic water into the river. On appeal, the
Patna High Court held that the law of nuisance in Sec 133 of CrPC would be applicable to a case
of pollution.
Thus in light of the advanced arguments it can be said that the state and the central
government should stop all excavation activities and close the steel industry and be responsible
for the restoration of natural pristine beauty of Suhamo.

47 AIR 1926 Pat 506

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ISSUE 3
WHETHER THE STATE AND THE CENTRAL GOVERNMENT SHOULD PAY
COMPENSATION AND FREE NUTRITIONAL CARE FOR THE PEOPLE IN
SUHAMO WHO WERE AFFECTED?
The State and the Central Government should pay compensation and free nutritional care for
the people in Suhamo who were affected because
3.1.
There have been significant losses since the inception of excavation activities
and establishment of steel and iron industry which has caused environmental
pollution and this environmental pollution and degradation has caused existential
threat to the people in Suhamo.
3.1.1. Loss of Drinking Water
More than 70% of people in Suhamo depend on River Sinasi for drinking water and
other day to day uses as only 30% of them have tap water. Large chunk of river Sinasi
was diverted to fulfil the demands of the water of the steel industry and Sinasi originated
in Suhamo from Lake Sulaom. With Sinasi being polluted and its water becoming
inconsumable from 1998, people of Suhamo have to depend on water from natural
springs or natural lakes far away. By 2014 even some of these lakes and springs have
turned barren. Thus, they were hampering the access to basic water needs of the people.
In APPCB v M.V Nayudu48 the Supreme Court observed that Drinking water is of
primary importance in the country. In fact, India is a party to the resolution of the
UNO passed during the United Nations Water conference in 1977 as under: All
people, whatever their stage of development and their social and economic
conditions, have right to access drinking water in quantum and a quality equal to
their basic needs.
3.1.2. Loss of Wholesome and healthy environment:
Since the inception of the inception of excavation activities and establishment of steel
and iron industry, there has been environmental pollution and degradation of the
environment.
In many reported instances the untreated water from the steel industry has been
allowed to go to river Sinasi from the water purification plant established to treat used
water from the industry, which has never worked properly. From 1998 to 2015, there are
48 [2001 (2) SCC 62]
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almost 50 such instances where foul water from the iron industry got merged in river
Sinasi and on such occasions, the water of the river Sinasi turned full of dead aquatic
creatures, its colour changed and it became full of bad odour. It has thus created water
pollution.
Large swathes of forest land were cleared to make excavation activities possible and
also nearby forest areas of the steel and iron industry have also been cleared to dump
other garbage resulting from the industry leading to deforestation.
Thus there has been a loss of healthy and wholesome and balanced environment.
In Rural Litigation and Entitlement Kendra v State of UP49 it was held by the
Supreme Court that pollution free environment is an integral part to life under Article 21.
It further observed that it is impossible to live with dignity in an unhealthy and
unbalanced environment.
In Hinchal Tiwari v Kamala Devi50, the Supreme Court observed that material
resources of the community like forests, tanks, ponds, hillock, mountain etc., are natures
bounty. They maintain delicate ecological balance. They need to be protected for a proper
and healthy environment which enables people to enjoy a quality of life is the essence of
the guaranteed right under Article 21 of the Constitution.
3.1.1. Loss of health due to polluted environment.
Due to the environmental pollution and degradation caused by the excavation activities
and the steel and iron industry, there have been health issues for the people of Suhamo.
The people of Suhamo have been having diseases because of polluted water of river
Sinasi, which is the most important source of water in Suhamo and which has been
traditionally used by its people for day to day purposes. From 2000 to 2015 there were
20000 reported cases of diseases only in Suhamo city and almost 1000 deaths from those
diseases. There has been also increase in the number of water borne diseases in Suhamo
city and adjoining areas. It can be hence inferred that these activities are creating health
hazards for people and thus it is harming their right to live a life of good health.

49 AIR 1985 SC 652

50 (2001) 8 SCC 765
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In T.N. Godavarman Thirummulped (87) v Union of India51 the Supreme Court any
threat to the ecology can lead to violation of the right of enjoyment of healthy life
guaranteed under Article 21 of the Constitution of India.
Fish X which is the specificity of only the three rivers that emanate from Lake
Sulaom, is the basic source of protein and other important nutrients of the people of
Suhamo. The period of 2000 -2015 has also witnessed substantial fall in the number of
fish X in river Sinasi and by 2015, these fishes have only been in vogue for their scant
presence in Sinasi. A study of World Environmental Forum pointed out that the released
water from water purification plant lacks in essential component of mineral Y which
can be considered one of the reasons for extinction of Fish X. This has caused
deficiencies in protein and other nutritional intake in population of Suhamo and resulted
in massive malnutrition, thus harming their right to lead a healthy life.
In CESC Ltd vs. Subash Chandra Bose52 the Supreme Court held that Right to health
is a fundamental right.
3.1.4 Loss of forest cover
The South West Region of Somavishu is comprised of hills, forests and many fast
flowing rivers and is comprised of many communities of tribal populations living there
since times immemorial. Large swathes of forest land were cleared in this region for
excavation and industrial purposes causing deforestation.
The forest was used for non forest purposes that are excavation of minerals i.e. mining
and dump industrial waste in forest land.
3.2. The steps taken by the Government are inadequate and insufficient.
3.2.1 The water treatment or purification plant established to treat used water from industry
has never worked properly and from 1998 to 2015, there are almost 50 such instances where foul
untreated water from the iron industry got merged in river Sinasi. The government authorities
have pleaded technical reasons out of their control but no steps have been taken to fix the
purification plant even after so many instances.

51 (2006) 1 SCC 1
52 AIR 1992 SC 573, 585
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3.2.2 Around 70% of People of Suhamo depend on Sinasi and other natural lakes and springs
for their basic water needs. However with river Sinasi polluted and many lakes and springs
having turned barren, water has become an issue. Only 30% has tap water and even though the
Government has promised tap water to every household, it is an idea. In the meantime no other
steps have been taken to address the water problems of the people.
3.2.3. No steps have been taken to address the nutritional needs of the people and to provide
health measures for people affected of diseases. Also no steps have been taken to address the
environmental pollution caused by these activities and return Suhamo to its pristine natural
beauty.
3.3. It is the responsibility of the Government to pay compensation.
3.3.1 The Government is guilty of Public Nuisance.
The environmental degradation in Suhamo due to the excavation and industrial activities is
harming the environment and causing danger to the lives of the people of Suhamo. Nuisance is
acts interfering with the comfort, health or safety of the individuals. As evidenced above the
excavation activities and establishment of the steel industry has threatened the very existence of
the people in Suhamo and caused danger and injury to the people. It is going against the peaceful
living of the people and going against their health. Thus the excavation and industrial activities
being undertaken by the Defendant makes them guilty of Public Nuisance.
Public nuisance is defined in section 268 of the Indian penal code, 1860 as follows:
A person is guilty of a public nuisance who does any act or is guilty of an illegal omission
which causes any common injury, danger or annoyance to the public or to the people in general
who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction,
danger or annoyance to persons who may have occasion to use any public rights.
A common nuisance is not excused on the ground that it causes some convenience or advantage.
Thus the Defendant can be held liable for civil as well as criminal wrong for nuisance under
Section 133 of the CrPC.
In Deshi Sugar Mill v Tupsi Kahar53, the law of public nuisance contained in Sec. 133 of
the CrPC was used as early in 1926 for the purpose of the protection of the environment. On the
request of about a hundred people, the sub-divisional magistrate ordered that the two sugar mills
in the locality should discontinue draining dirty and toxic water into the river. On appeal, the
53 AIR 1926 Pat 506
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Patna High Court held that the law of nuisance in Sec 133 of CrPC would be applicable to a case
of pollution.
In the case Dr. Balwant Singh v Commissioner of Police and others54 the Supreme Court
opined that the law on nuisance is well settled. Nuisance in any form is recognised in the Law
of Torts. Whether private, public or common which results in affecting anyones personal or land
property rights gives him a cause of action/right to seek remedial measures in Court of law
against those who caused such nuisance to him and further gives him a right to obtain necessary
reliefs both in the form of preventing of committing of nuisance and appropriate damages/
compensation for the loss, if sustained by him, due to causing of such nuisance.
Thus the Defendant here is criminally liable as well as liable to pay appropriate damages/
compensation for the losses of the people of Suhamo.
3.3.2. Negligence by the government makes it liable to pay appropriate damages and
compensation.
The Government was negligent in their duty to protect the environment and ensuring peaceful
enjoyment of the health, safety and life of the people. Negligence is a kind of tort where a
remedy for environmental pollution lies. By negligence we mean a breach of duty caused by the
omission in doing something or doing something carelessly or negligently.
Due to the steel and iron industry there has been environmental pollution. The Water
purification plant of the industry never worked properly and there are 50 instances when foul
water from the industry got mixed with the river releasing poisonous substances and toxins in
Sinasi. In spite of that no steps were taken by the Defendant i.e. the government to correct or fix
the plant. This has caused great harm and damage to the people in Suhamo by making the water
polluted, contaminated, and hampering access of basic water needs which is the fundamental
right of the people. Not only that the polluted water has caused diseases and infringed the right of
the people to enjoy a healthy life. The resulting environmental pollution and degradation because
of the negligent acts of the government has infringed the right of people to enjoy a wholesome,
healthy, safe, balance and clean environment.
The infringed rights of the people are fundamental rights and per as the Constitution of
India, the State i.e. The Government, the courts, etc are legally duty bound to respect them and
not violate them.
54 2015 (5) FLT 1
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Also Article 48 A of the Constitution of India states that, the State shall endeavour to
protect and improve the environment and to safeguard the forests and wildlife of the country.
The Andhra Pradesh High Court in T. Damodar Rao v S.O. Municipal Corporation,
Hyderabad55 and the High Court of Himachal Pradesh in Kinkri Devi v State56 interpreted the
Article 48A as imposing an obligation on the government including courts, to protect the
environment.
In Centre for Environmental Law, WWF-1 v Union of India and others57 the Supreme
Court observed that the State as a custodian of natural resources, has a duty to maintain them
not merely for the benefit of the public, but for the best interest of flora, fauna, wildlife and so
on.
It is thus evident that the Government has a legal duty to protect the environment and the
rights of the people and by not taking care in operation of these activities which resulted in
environmental pollution/ degradation, the Government has breached their legal duty to take care
and is guilty of negligence.
Thus the people of Suhamo are entitled to appropriate damages and compensation.
3.3.3. The Government is tortiously liable to pay appropriate damages and compensation to
the people of Suhamo.
The environmental pollution and degradation in Suhamo is due to the excavation activities
and the industrial activities. These activities have infringed the fundamental rights of the people
of Suhamo and have released hazardous pollutants in the environment due to which an unsafe,
unhealthy, unbalanced environment has resulted as the consequences of those actions. The State
has a duty to protect the environment. A healthy, balanced, safe and wholesome environment is
the fundamental right of people. The Government is liable under Law of Torts to pay
compensation and repair any damage suffered by the people of Suhamo.

55 AIR 1987 A.P. 171.

56 AIR 1988 H.P. 4
57 2012 (3) FLT 672
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Tort is a civil wrong for which the remedy in common law is action for unliquidated
damages58 and tortiuous liability arises from a breach of duty fixed by law. The Government as
mentioned earlier has a duty and obligation to protect the environment and is also duty bound not
to violate the fundamental rights guaranteed to the people. Since there has been both
environmental degradation and infringement of fundamental rights due to the excavation
activities and industrial activities undertaken by the Government, they have clearly breached
their duty and can be held tortiously liable.
3.3.3.1. Strict Liability
Under the doctrine of strict liability a person is held liable even though he is not
negligent in causing the same or there is no intention to cause the harm.
In the Ryland v. Fletcher59, the Supreme Court observed, we are of the view that an
enterprise which is engaged in a hazardous or inherently dangerous industry which poses a
potential threat to the health and safety of the persons working in the factory and residing in
surrounding areas owes an absolute and non delegatable duty to the community to ensure that no
harm results to any one on account of hazardous or inherently dangerous activity which it has
undertaken.
By this the Government of Somavishu can be strictly held liable for their actions which has
caused harm to the people of Suhamo on account of creating an existential threat to the people
and posing hazard to their health and life due to environmental pollution .Thus the government is
tortiously liable to the people of Suhamo for appropriate damages and compensation.
3.3.3.2 Absolute Liability
Under the doctrine of absolute liability and as per the provisions of rule of strict liability, the
hazardous industries operating the country are supposed to bear, the burden of the damage they
caused.
In the case of Bhopal Gas Leak Case (supra) the need to evolve a new principle in the
prevailing socio-economic conditions was felt. While applying the principle of absolute liability,
the Supreme Court held:

58 Definition by Blackstone
59 [ (1868) IR 3 HL 330]
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We would therefore hold that an enterprise is engaged in a hazardous or inherently
dangerous activity and harm results on account of accident in the operation of such activity
resulting in for example an escape of toxic gas, the enterprise is strictly and absolutely liable to
compensate all those who are affected by accident and such liability is not subjected to any of the
exception which operate vis-a-vis the tortious principle of strict liability under the rulings made
in Ryland vs. Fletcher. The larger and the more prosperous the enterprise, the greater must be the
amount of compensation payable by it for the harm caused on account of an accident in carrying
on the hazardous or inherently dangerous activity of the enterprise.
In Indian Council for Enviro-legal action v Union of India60 it was held that the
polluting industries are absolutely liable to compensate for the harm caused by them to the
villagers in the affected area, to the soil and to the underground water and hence, they are bound
to take all necessary measures to remove sludge and other pollutants lying in the affected areas.
In Suhamo, the excavation activities and the establishment of iron and steel industry,
there has been huge amount of environmental pollution and degradation with the release of
noxious pollutants in the environment which has created an existential threat to the people of
Suhamo. Thus the Government is absolutely liable to pay compensation to the people of
Suhamo.
3.3.4. The Government being the polluter is liable to pay compensation and free nutritional
care for the people in Suhamo who were affected
The Government is liable to pay compensation and free nutritional care for the people in
Suhamo who were affected because it is the polluter. According to the polluter pays principle is
the `commonly accepted practice that those who pollutes must bear the burden of the
consequences of the pollution.
The Polluter Pays principle came about in the 1970s at the time when the importance of
environment, and its protection was in the realized in the whole world and it was subsequently
promoted by the organisation for economic corporation and development (OECD). The polluter
pays principle as interpreted by the court means that the absolute liability to the environment
extends not only to compensate the victims of pollution but also the cost of restoring
environmental degradation.

60 1996 AIR SCW 1069

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In other words polluter should bear the cost of pollution as the polluter is responsible for the
pollution. The principle demands that financial costs of preventing and remedying damage
caused by pollution should lie with the undertaking which cause pollution.
It may be noted that polluter pays principle evolved of the rule of absolute liability as laid down
by the Apex Court in Sriram Leak Case.
In the Taj Trapezium Case61 the court recognised that the polluter pays principle means two
things primarily: 1. The polluter should pay for the administration of the pollution control system
and 2. The polluter should pay for the consequences of the pollution. And, the polluter should
also bear the financial consequences of the pollution
The Supreme Court in Vellore Citizens Welfare Forum v Union of India 62 observed that The
Authority shall compute the compensation under two heads namely, for revising the ecology and
for payment to individuals.
In Hamid Khan vs. State of M.P.63 the court ordered free medical treatment to be given to the
people besides awarding compensation.
Thus we can say that the Government being the polluter is liable to pay compensation and
free nutritional care for the people in Suhamo who were affected.
Thus in light of the aforesaid arguments it can be said that the Government is liable for the
injury to peoples rights and environmental degradation and hence is liable to restore the
environment and pay appropriate damages or compensation and free nutritional care to
the people of Suhamo who were thus affected by the acts of the Government.

61 [ AIR 1996 SC 2715]

62 Supra at citation 42
63 [ AIR 1997 MP 191]
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PRAYER
In light of the issues raised , arguments advanced, cases citied in front of the Honble
Supreme Court, the Prosecutor most humbly pleas that the Court may:
1. Direct the Defendants to stop all excavation works in the district of Suhamo immediately
sand to stop further expansion of such activities should be considered.
2. Direct the steel industry established in district Suhamo to be closed immediately.
3. The State govt. as well as the Central govt. may be directed to prepare a plan for
restoration of natural beauty of the district Suhamo immediately.
4. Direct the Governments to pay compensation to the victims or their nearest relatives who
have been affected by any one of the water borne disease in Suhamo city on account of
establishment of Steel industry and to provide nutritional care free of cost to all
population of Suhamo city till the abundance of Fish X in the river Sinasi is achieved
5. The Prosecutor humbly prays that they may be allowed to approach the appropriate forum
in order to take punitive criminal action against the Defendants for their negligence and
tortious acts.
6. Grant other reliefs as the Honble Court may deem fit in the light of Justice, Equity and
Good conscience
For which the counsels on behalf of the prosecution will forever be duty bound and obliged.

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