ARGUMENTS ADVANCED

STATE OF MANDEVILLE

1. Whether the Supreme Court of Kano has jurisdiction in the present matter.

It is humbly contended before the Hon’ble Supreme Court of Kano that it has jurisdiction under
the article 136 and 32 of the constitution of Kano. As this Hon’ble court may in its discretion
grant special appeal to an appeal from a judgment or order passed by any court or tribunal within
the territory of Kano. The scope under special appellate jurisdiction of the Supreme Court is very
flexible. There are no words in Article 136 itself qualifying the power of the Supreme Court. The
matter lies within the complete discretion of the Supreme Court and the only limit upon it is the
“wisdom and good sense of the judges” of the court.1

1.1 Jurisdiction under Article 136 of the constitution

It is humbly contended before this Hon’ble court that the power of the Supreme Court to grant
special leave to appeal from decision of any court or order is not subject to any constitutional
limitation and is left entirely to discretion of the Supreme Court.2 And as it has been proven in
the court mere existence of alternative relief is not a bar for granting leave under 136. 3
Furthermore, it vests in the Supreme Court a plenary jurisdication 4 in the matter of entertaining
and hearing appeals by granting of special leave against any kind of judgmemt or order made by
a court or tribunal in any cause and the powers could be exercised in spite of the specific
provisions for appeal contained in the Constitution or other laws.5 The nature of the statue or
limitation imposed within a statue 6 cannot deter the Supreme Court from exercising its
jurisdiction.7In cases where special leave is granted the discretionary power vested in the court
continues to remain with the court even at the stage when appeal comes up for hearing.8

For an “order” properly to be the subject of a petition for special leave to appeal under this
article, it must be an adjudicatory order, an order that adjudicates upon rival contentions of
1
Balakrishna Iyer v. Ramaswami Iyer AIR 1965 SC 195
2
Durgashankar v. Raghuraj AIR 1954 SC 520
3
East India Hotels v. Syndicate Bank Ltd. 1992 (Supp-2) SCC 29
4
Arunachalan v. Sethuratnam AIR 1979 SC 1284
5
Durgashankar v. Raghuraj AIR 1954 SC 520
6
Union of India v. West Coast Paper Mills Ltd.,(2004) 2 SCC 747
7
N. Natarajan v. B.K. Subba Rao (2003) 2 SCC 800
8
Ashok Nagar Welfare Association v. R.K. Sharma AIR 2002 SC 335
parties, and it must be passed by authority constitued by the state by law for the purpose in
discharge of state’s obligation to secure justice to people.9 And going parallel with the definition
the clearance given was an order by the tribunal and hence is open to challenge in appellate
court. Furthermore, special leave can be granted from the orders of any court or tribunal even
where there is an appeal to the High Court. The word “order”10 has not been qualified by the
word “final”11 and under Article 136 can be invoked even in respect of interlocutory orders.12
And the Supreme Court can interfere even with the interlocutory order under Article 136 13 if the
order is of temporary injunction and if the relevant circumstances have not been conidered.14

The current situation hence becomes appealable before the Hon’ble court as the tribunal rejected
the line of argument against injunction by not approving for stopping of construction of dam
under the umbrella of Aishani Jal project. Also they did not take into consideration the ecological
impact and the sensitive impact of economy in the State of Mandeville. And hence as the case
states above that court can grant special leave even on an interlocutory order, appeal can be
allowed.

1.1.1 Ground for appeal under Article 136

It is implicit in the reserve power that it cannot be exhaustively defined, but decided cases do not
permit interference unless by disregard to the forms of legal process or some violation of the
principles of natural justice or otherwise, substantial and grave injustice has been done.15 It is an
exceptional power to be exercised sparingly, with caution and care to remedy extraordinary
situation or situations occasioning gross failure of justice; the court may generously step in to
impart injustice and remedy injustice.16 And in the current situation the State of Mandeville has
suffered grave injustice after the principal clearance for the construction of Aishani Jal project
was given by the central government and denail of an injunction on the same by the tribunal as it

9
Konkan Railway Corpn. Ltd. v. Rani construction (P) Ltd. AIR 2002 SC 778
10
Varadaraja v. Subramonia (1968) SC (Cr. A. 1651/67, dated 18/12/1968)
11
Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, AIR 2004 SC 1815
12
Bharat Bank Ltd. v. Employees of Bharat Bank Ltd.,AIR 1950 SC 188: 1950 (II) LLJ 921
13
Article 136, Special leave to appeal by the Supreme Court
14
Haridas Girdhardas & Ors v. Varadaraja Pillai 1971 AIR 2366
15
Sanwant Singh v. State of Rajisthan AIR 1961 SC 715
16
Narpat Singh v. Jaipur Development Authority (2002) 4 SCC 666
is affecting its wildlife. Which is not only adversely affecting the environment but is also
affecting their economy to a large extent. As the state is heavily dependent on nature and tourism
for its revenue.

Since the jurisdiction is discretionary, the form in which the relief is to be granted is at the
discretion of the Supreme Court. It is open to the court to mould or restrict the relief in a manner
most appropriate to the situation before it in such a way as to advance the interests of justice. 17
And hence the State of Mandeville has approached the Supreme Court under special leave
petition as it has suffered grave injustice. In the light of which it is pleaded that the Hon’ble court
not only grant an injunction on the clearance given by the central government and approved by
the tribunal but also adjudicate on the matter of water distribution.

1.2 Maintainability under Article 32 of the Kano constitution

It is humbly contended before this Hon’ble court that the issue of excessive sand mining shall be
dealt with by this court as it is maintainable under Article 32 of the Kano Constitution. Article 32
guarantees an unsuspended right and empowers to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred. And the Supreme Court can issue
directions or orders or writs which may be appropriate for the enforcement of rights conferred
under this part.18 This Article gives power to Supreme Court to sheild a law from challenge on
the ground of contravention of fundamental right.19

Furthermore, it has been held that powers given to Supreme Court under Article 32 for the
enforcement of Fundamental Rights, are not just confined to issuing prerogative writs only, and
are not necessarily circumscribed by such conditions which limit the exercise of the prerogative
writs.20 Also, the article is wide enough to consider even claims for compensation arising from
violations of fundamental rights.21

Taking a step ahead, it has also been held that right to apply under Article 32 arises not only
where a fundamental right has been infringed , but also where a serious threat to infringe has

17
Orissa Cement v. State of Orissa AIR 1991 SC 1676 (para 71)
18
Article 32, Remedies for enforcement of rights conferred by part III
19
Somawanti (Smt.) v. State of Punjab AIR 1963 SC 151 (165)
20
Election Commission of India v. Union of India 1995 Supp (3) SCC 643 (para 8)
21
Mehta, M.C. v. Union of India AIR 1987 SC 1086
been offered. 22 But a mere apprehension that he would be deprived of his fundamental right
would not be enough.23

In other words, a petition under Article 32 will be entertained if the petitioner can make out a
prima facie case that his fundamental right are either threatened or violated; it is not necessary
for him to wait till the actual threat has taken place.24

Hence, the State of Mandeville seeks to get relief under this Article as it is maintainable under
this court for various reasons. First, there is a clear infringment of Fundamental Rights of State
of Mandeville under Article 21, as their right to wholesome environment is getting affected.
Right to environment is constituted under Article 2125. Second, the impact of sand mining will be
discussed in brief subsequently in the third issue. It has been subsequently proven that as an
impact of sand mining there is reasonable threat to livelihood as State of Mandeville’s economy
is highly dependent on its ecology for its revenue. And hence, the appeal is maintainable.

Also, there have been cases similar to the dispute between State of Karak and State of
Mandeville, where the Supreme Court considered application under Article 32 of the constitution
for direction to refer an Inter State Water Dispute to a tribunal.26

It shall also be brought infront of this court that an application under Article 32 can not be
thrown out simply because the proper direction or writ has not been prayed for. Thus, for
example, where an order in the nature of Mandamus is sought in a particular form, nothing
debars the court from granting it in a different form. Article 32 gives the court a very wide
discretion in the matter of framing the writs to suit the exigencies of particular cases.27

In general, it has been observed that under Article 32, the Supreme Court has extraordinary
power, to prevent the manifest injustice being done, in proper cases.28

Concluding, not only Mandeville’s fundamental right is getting infringed and but their State has
suffered injustice as well. Injustice in true form as, Mandeville is already suffering ecological

22
Tata Iron and Steel Company v. S.R., AIR 1961 SC 65 (68)
23
Maganbhai v. Union of India (1970) 3 SCC 400 (para 213)
24
D.A.V. College v. State of Punjab (1971) 2 SCC 261 (para 5)
25
Virendra Gaur and Ors. v. State of Haryana 1995 (2) SCC 577
26
Tamil Nadu Cauvery v. Union of India and Ors 1990 AIR 1316; 1990 SCR (3) 83
27
Chiranji Lal Chowdhuri v. Union of India (1950) SCR 869 : AIR 1951 SC 41
28
Harbans Singh v. State of U.P. AIR 1982 SC 849 (para 20)
disbalance due to the ongoing dam construction which is resulting in harm to the Wildlife
Sanctury, which is home to several exquisite birds and species. Eventually, it also is harming the
livelihood of Mandeville’s and is severely affecting their economy. And along with that
Mandeville suffers serious harm by sand mining which is increasing the disbalance to a wide
extent. And hence, this appeal that lays in this court today shall be maintainable and the State of
Mandeville seeks to get justice as recent developments are a sign of grave injustice done.
2. Whether there is necessity to proceed with Aishani Jal Project.

It is humbly contended before this Hon’ble court that the Aishani Jal Project shall not be allowed
to proceed further. As an impact of construction not only does the environment adversely get
affected but it infringes the Fundamental Rights guaranteed by the constitution of Kano.

It is also appealed infront of this court that demand of excessive water by State of Karak shall not
be accepted as the quantum of water requested is more than double the amount proposed and is
beyond the capacity of State of Mandeville to grant as it affects them immensely.

2.1 Impacts of Construction of Dam

It is contended infront of this court under this particular issue that the World Commission on
dams found out that, on average, large dams go over the budget by 56%. They are high in risk
investment. Environment is threatened and ecology is the price.29 And there are several impacts
of construction of dams on Aishani River including adverse impact on environment and
infringment of Fundamental Rights.

2.1.1 Adverse impact on Environment

There have been cases where it has been held that subject to any permount right to the use of the
water under the general law in some other person, a riparian owner has the right to make any use
of water, beneficial to himself as long as he does not inflict any substantial or material injury on
those below him.30 It also has been stated that doctrine of riparian rights recognises equal rights
to the use of water by all owners of land abutting a river, as long as there is no resulting
interference with the rights of other riparian owners.31 It is apparent that State of Mandeville is
suffering a substantial injury and hence the riparian owner cannot make any use of water, how so
ever it likes.

The “Precautionary Principle” makes it obligatory for a state to anticipate, prevent and attack the
causes of environment degradation. 32 The polluter has to pay damages for restoration of

29
United Nations Environment Programme, Dams and Development 2000, available from
http://www.unep.org/dams/WCD/report/WCD_DAMS%20report.pdf
30
U.S. Indian Refining Co. v. Ambraw River Drainage Dist., D.C. I11.,F.Supp, 937
31
Krishna Water Disputes Tribunal Report (1973), Vol. 1, page 93, Valsalan, page 25
32
M.C.Mehta v. Union of India (1997) 3 SCC 715
ecological balance and also pay damages to the victims who have suffered due to ecological
disturbances.33 Further, it has been laid that the burden of proof for the new concept lays on the
actor/developer to show that his action is environmentally benign.34 Right to clean water, enjoins
the State and its agencies to strictly enforce environmental laws.35

The Final Report of the Special Rapporteur on Prevention of Discrimination and Protection of
Minorities36 listed over 15 rights relative to environmental quality. Some of these include: the
right to freedom from pollution, environmental degradation and activities, which threaten life,
health or livelihood; protection and preservation of the air, soil, water, flora and fauna.

The Columbian court held that side by side with fundamental rights such as liberty, equality and
necessary conditions for people’s life, there is the right to the environment. The right to a healthy
environment cannot be separated from the right to life and health of human beings. If this is so
we can state that the right to the environment is a right fundamental to the existence of
humanity.37 The Phillipine Constitution also states that the State shall protect and advance the
right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of
nature.38 Guatemala too has seen the environmental ombudsman in a case39 where the lack of
interest and irresponsibility on the part of authorities in charge of National Environmental Policy
amounts to a violation of human rights, considering that it impairs the enjoyment of a healthy
environment, the dignity of the person, the preservation of the cultural and natural heritage and
socio-economic development.

The concept of sustainable development contains three basic components or principles. First
among these is the precautionary principle, whereby the state must anticipate, prevent and attack
the cause of environmental degradation.40 The Rio Declaration affirms the principle by stating
that where ever “there are threats of serious or irreversible damage, lack of full scientific

33
M.C. Mehta v. Kamal Nath (2000) 6 SCC 213
34
Vellore Citizen’s Welfare Forum v. Union of India (1996) 5 SCC 647
35
Indian Council for Enviro Legal Action v Union of India, (1996) 5 SCC 281
36
United Nations Doc. E/CN4/Sub.2/1994/9 (1994)
37
Antonio Mauricio Monroy Cespedes (1993)
38
Section 16, Article II of Constitution of Phillipines 1987
39
Concesiones otorgadas por el Ministerio de Energía y minas a Empresas Petroleras (1999)
40
Vellore Citizen’s Welfare Forum v. Union of India AIR 1996 SC 2715
certainty shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.”41

In 1996, the Supreme Court 42 stated that environmental measures, adopted by the State
Government and the statutory authorities, must anticipate, prevent and attack the causes of
environmental degradation.

The word environment is of broad spectrum which brings within its ambit, hygienic atmosphere
and ecological balance. The State, in particular has duty in that behalf and to shed its extravagant
unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic
environment.43

Considering all the above mentioned principles laid through various case laws and declarations it
is safe to observe that Right to Environment constitutes an important position in the Constitution
of Kano. And matter under the violation of such right is appellable. And, the construction of dam
that has got clearance shall be stopped as it affects the ecology of State of Mandeville. Specially
the Wildlife Sanctury based in the border region of Mandeville which is home to various
exquisite birds and species. So, not only will Mandeville’s sensitive ecology get affected but due
to construction of dam the water flow will reduce resulting into adverse impact on lives of
various birds and animals. Lastly, in light of justice there has been case where ecology prevailed
under the ground of necessity.44

2.1.2 Infringment of Fundamental Rights

It is humbly contended infront of this Hon’ble court that the Aishani Jal Project shall be stalled
as it is not only degrading the environment of the State of Mandeville but also infringing their
fundamental rights. And as guaranteed by the Constitution of Kano, Fundamental Rights are the
rights which enable a man to chalk out his own life in the manner he likes best.45

41
Principle 15, Rio Declaration on Environment and Development (1992).
42
Vellore Citizen’s Welfare Forum v. Union of India AIR 1996 SC 2713
43
Virulent Gar v. State of Haryana 1995(2) SCC 577
44
The case concerns dispute between Hungary and Slovaki concerning a treaty for a project of construction of dam
on Danube River for the production of electricity, among other purposes. Hungary had suspended the development
of the project alleging that it would impair the environment.
45
Golak Nath v. State of Punjab (1967) 2 SCR 762 (790)
2.1.2.1 Infringement of Right to Environment within Article 21

It has been held46 that the Article 48A47 and Article 51A(g)48 are to be considered in the light of
Article 21 49 of the Constitution of India. Thus, any disturbance of the basic environment
elements, namely, air, water and soil which are necessary for “life” would be hazardous to “life”
within the meaning of Article 21.

It in its expanded horizion includes all that gives meaning to a man’s life 50 including his
tradition, culture and heritage and protection of that heritage in its full measure would certainly
come within the compass at Article 21.51 Right to live under Article 21 includes the right of
enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or
impairs that quality of life in derogation of laws. 52 The Supreme Court of India interpreted
Article 21 which guarantees the Fundamental Right to life and Personal Liberty, to include right
to a wholesome environment and held that a litigant may assert his or her right to healthy
environment against the State.53

Subsequently, the court has observed that right to life guaranteed by Article 21 includes the right
of enjoyment of pollution-free water and air for full enjoyment of life.54 Through this case, the
Court recognised the right to a wholesome environment as part of the fundamental right to life.
The Supreme Court has used the right to life as a basis for emphasizing the need to take drastic
steps to combat air and water pollution.55

Keeping in mind all the principles laid above, it is clear that right to water and environment is a
part of Fundamental Right under Article 21. State of Mandeville hence contends that stay should
be put on clearance given to State of Karak for construction of Dam as Mandeville’s
environment is getting affected within the meaning of Article 21. It is further laid down that it is

46
M.C.Mehta v. Kamal Nath AIR 2000 SC 1997 (para 8)
47
Part IV, Fundamental Duty under Directive Principle
48
Id.
49
Article 21, Right to Life and Pesonal Liberty
50
Bhuvan mohan patnik v. State of A.P. AIR 1974 SC 2092; M.C.Mehta v. UOI (1999) 6 SCC 542 (para 1)
51
Ramsharan Autyanuprasi v. UOI AIR 1989 SC 549; Board of trustees of port of Bombay v. Dilipkumar R.
Nadkarni AIR 1983 SC 109
52
M C Mehta v. State of Tamilnadu AIR 1991 SC 417
53
Municipal Council, Ratlam v. Vardichand AIR 1980 SC 1622
54
Subhash Kumar v. State of Bihar, AIR 1991 SC 420
55
V. Mathur v. Union of India, (1996) 1 SCC 119.
a very sensitive issue as environment degradation is affecting the flora and fauna of the State.
Moreover, if the dam is constructed the water flow to lower riparian state i.e. Mandeville will
reduce, affecting the Wildlife Sancutry which is highly dependent on Aishani River’s water as it
is home to various birds and animals.

Arguendo, there are circumstances where the full enjoyment of the rights to life, to healthy living
and to ones culture can lead to the depletion of natural resources and environmental degradation.
Nevertheless, clearly there is a prima facie rhetorical and moral advantage in making the
environment a human rights issue.56

2.1.2.2 Infringment of Right to Livelihood within Article 21

If right to livelihood is not treated as a part of the constitutional Right to Life, the easiest way of
depriving a person of his right to life would be to deprive him of his means of livelihood to the
point of abrogation. Such deprivation would not only denude the life of its effective content and
meaningfulness but it would make life impossible to live. And yet,such deprivation would not
have to be in accordance with the procedure established by law, if the right to livelihood is not
regarded as a part of right to life.57 That which alone makes it possible to live, leave aside what
makes life livable, must be deemed to be an integral component of the right to life.58

There is an affirmative obligation on the part of the state to preserve and protect human life and
property. This obligation is an integral element in fulfilling development endeavours. 59 Other
environmental impacts of dams are also direct blows to livelihood security, e.g. disruption of
downstream water and silt flows, causes losses in fisheries in the river and the coastal areas,
robbing fisherfolk of their livelihoods.60

State of Mandeville is excessively dependent on its tourism and nature because of wildlife
sanctury and hence impact on its ecology directly impacts its economy resulting into loss of
livelihood in numerous ways. Livelihood and Environment is an integral part of Article 21 as

56
Margaret DeMerieux, “Deriving Environmental Rights from the European Convention for the Protection of
Human Rights and Fundamental Freedoms” 21 (3) OXFORD JOURNAL OF LEGAL STUDIES 521 (2001).
57
Olga Tellis v. Bombay Municipal Corpn. AIR 1986 SC 181 (para 32). D.D.H.E. Union v. Delhi Administration
AIR 1992 SC 789
58
Id.
59
N.D. Jayal v. Union of India 2004 (9) SCC 362
60
Singh et.al 2000
seen above. And depriving the State with both infringes their basic fundamental right leading
into loss of economy and leaving an immense impact on lives of its citizens, flora and fauna and
the State as a whole.

Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment
including their right to life with human dignity encompasses within its ambit, the protection and
preservation of environment, ecological balance free from pollution of air and water, without
which life cannot be enjoyed. Environmental protection, therefore, becomes a matter of grave
concern for existence. Promoting environmental protection implies maintenance of the
environment as a whole comprising the man-made and the natural environment which the State
of Mandeville is entitled of and hence there plea should be considered.

2.2 Water distribution scheme of Aishani River

The right to the use of flowing water is publici juris and common to all the riparian proprietors; it
is not an absolute and exclusive right to all the water flowing past their land so that any
obstruction would give a cause of action; but it is a right to the flow and enjoyment of the water,
subject to a similar right in all the proprietors to the reasonable enjoyment of the same gift of
providence.61 Person may deal as he choses with the water rising on his land. This is subject to
the limitation that the water thus rising be not the source or the main. 62 A proprietor cannot
diminish the quantity or injure the quality of water, which would otherwise descend.

At common law every riparian owner is entitled to the natural flow of the water of a running
stream through or along with his land, in its accustomed channel, undiminished in quantity or
63
quality. The Narmada Tribunal on its elaborate discussion of doctrine of Equitable
Apportionment and its application said, alternative remedy available of satisfying the need shall
also be considered.64

61
T.N. Cauvery v. Union of India [1989] 1 SCC 204
62
Williams v. Morland (1824) 2 B&C 910
63
Ark Harrall v. City of Conway 83 A 2d 177
64
The Narmada Water Dispute Tribunal (Report, 1978, Volume 1, page 109)
The waters of an inter-State river pass through the territories of the riparian States such waters
cannot be said to be located in any one State. They are in a state of flow and no State can claim
exclusive ownership of such waters so as to deprive the other States of their equitable share.65

The right to flowing water is now well settled to be a right incident to property in the land; it is a
right public juris, of such character that, whilst it is common and equal to all through whose land
it runs, and no one can obstruct or divert it, yet as one of the beneficial gifts of Providence, each
proprietor has a right to a just and reasonable use of it.66

In the present matter brought infront of this Hon’ble court, the State of Mandeville pleads that
the request made for requirement of 7.5TMC water is excessive as due to construction of dam
the water flow of the lower riparian state i.e. Mandeville is anyway reducing and their ecology
and livelihood is adversely getting affected as briefly discussed in the above issues. On the top of
it the demand for more than double the amount stated is not affecting their nature but is now
affecting their Riparian Rights which the state is entitled to. Also, it has to be borne in mind that
the East Zone of Union of Kano is coupled with various water bodies and Aishani River is not
the only source for survival. Hence, State of Mandeville shall not be obliged to release the
excessive water which in return is leaving adverse impact on its own State.

Moreover, what needs to be kept in mind is the Government can utilize the natural resources for
common good but cannot be allowed to exploit or virtually plunder it is a manner to deprive
those presently sustaining their lives on those natural resources and deprive the coming
generations who have also a right of living on those resources.67

Furthermore, whenever a problem of ecology is brought before the Court, the Court is bound to
bear in mind Art. 48A of the Constitution and Art. 51A(g).When the Court is called upon to give
effect to the Directive Principles and the fundamental duty, the Court is not to shrug its shoulders
and say that priorities are a matter of policy and so it is a matter for the policy-making
authority.68 Hence, bearing the rights of animals of Wildlife Sanctury in the State of Mandeville
can not be ignored as excessive water release will affect them as well. It also has been said when

65
Cauvery Water v. Unknown AIR 1992 SC 522
66
State of Kansas v. State of Colorado [206] US 46
67
N D Jayal v. Union of India 2003 Supp(3) SCR 152
68
Sachidanand Pandey v. State of West Bengal AIR 1987 SC 1109
we look at the rights of animals from the national and international perspective, what emerges is
every species has an inherent right to live and shall be protected by the state.69

It has even been said that the largest single factor in the depletion of the wealth of animal life in
nature has been the civilized man operating directly through excessive commercial hunting or,
more disastrously, indirectly through invading or destroying natural habitats.70

A suit in law or equity is not entertained by a citizen of another State vide 11th amendment to the
Constitution of United States and independent of it considered the argument based on Parens
patriae and observed as follows: "The "parens patriae" doctrine however, has aspects which go
beyond mere restatement of the Eleventh amendment; it is a recognition of the principle that the
State, when a party to a suit involving a matter of sovereign interest 'must be deemed to represent
all its citizens'."71 While State Governments in their sovereign capacity are expected to protect
and represent the interests of all its people they do not act as at adversories in the usual sense.72

Hence, under the doctrine of Parens Patriae the State of Mandeville, acting as a
guardian/caretaker pleads that the water shall not be released as it is performing its own duty by
looking after its citizens. And as not only their livelihood, basic environment fundamental right
is getting infringed but the State is in a loss and deprived position already due to the ongoing
construction of dam resulting into reduce of water flow in the lower riparian state.

69
Animal Welfare Board of India v. A. Nagaraja & Ors (2014) SC [W.P 145/5388, dt 07-05-2014]]
70
State of Bihar v. Murad Ali Khan, AIR 1989 SC
71
United States in State of New Jersey v. State of New York, 97 Lawyers Edn. 1081
72
R. Krishnaiah v. Union Of India 1996 (4) ALT 175
3. Whether sand mining has led to environmental degradation.

It is humbly contended before the Hon’ble Supreme Court that allowing the excessive sand
mining across the River Aishani leads to adverse effects on the ecology as mentioned by the
Geological Survey of India (GSI) 73 , such as destruction of riparian habitat, depletion of
groundwater tables and the pollution of groundwater.

The right to life covers the right to a wholesome environment which was done with the
expansion of the scope of Article 21 in the recent past. It was held that every person enjoys the
right to a wholesome environment, which is a facet of the right to life guaranteed under Article
21 of the Constitution.74 The right to life also covers the right to livelihood75. Hence, what Karak
should have kept in the mind while allowing the sand mining is the variety of flora and fauna that
is at stake in the Wildlife Sanctuary located in Mandeville, alongside the border of Karak, and its
overall effect on ecology and nature, subsequently leading to an effect on livelihood.

3.1 Adverse impacts of sand mining on ecology

DEVELOPMENTS DUE TO CHANGE IN RIVER COURSE

Economic development should not be allowed to take place at the cost of ecology or by causing
widespread environment destruction.76 In other words, there should not be development at the
cost of environment.77

One more fact revealed by Geological Survey of India (GSI)78, is that mining from, within or
near a riverbed has a direct impact on the stream’s physical characteristics, such as channel
geometry, bed elevation, substratum composition and stability, instream roughness of the bed,
flow velocity, discharge capacity, sediment transportation capacity, turbidity, temperature, etc.

73
Geological Survey of India,“Impacts and Methodology of Systematic and Scientific Mining in the river bed
material”, available from http://www.portal.gsi.gov.in/gsiDoc/pub/riverbed_mining_guidelines.pdf
74
Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh AIR 1988 SC 2187. Subhash Kumar
v. State of Bihar (1991) 1 SCR 5
75
Delhi Transport Corporation v. D.T.C. Mazdoor Congress 1991 AIR 101, Samatha v. State of Andhra Pradesh &
Ors. AIR 1997 SC 3297, Chief Medical Officer, General Hospital, Bhiwani and Ors.v. Vijay Kumar and Ors. 2016
(148) FLR 67, Satya Deo Mishra v. State of U.P. and Anr. 1996(94) ALJ 464, Madhu Kishwar and others v. State of
Bihar and others AIR 1996 SC 1864
76
K. Guruprasad Rao v. State of Karnataka & Ors. (2013) 8 SCC 418
77
Indian Council for Enviro-Legal Action v. Union of India (1996) 5 SCC 281
78
Geological Survey of India, supra
Alteration or modification of the above attributes may cause hazardous impact on ecological
equilibrium of riverine regime. This may also cause adverse impact on instream biota and
riparian habitats. This disturbance will also cause changes in channel configuration and flow-
paths. And hence it is clear that even if the mining takes place in the State of Karak then also the
riparian owners get adversely affected which here is the State of Mandeville.

3.1.1 Riparian Habitat

It is humbly submitted before this Hon’ble Court that bank erosion through sand mining and
change of morphology of the river, which here is change in river course can affect the riparian
vegetative cover. Riparian habitat includes vegetative cover on and adjacent to the river banks,
which controls erosion, provides nutrient inputs into the stream and prevents intrusion of
pollutant in the stream through runoff 79 . And subsequently cause of these leading effects,
Mandeville’s Wildlife Sanctuary which is a habitat to various exquisite birds and animals will
adversely get affected.

Over the years, rivers and their Riparian ecology have been badly affected by the alarming rate
of unrestricted sand mining which damage the ecosystem of rivers and the safety of bridges,
weakening of river beds, destruction of natural habitats of organisms living on the river beds,
affects fish breeding and migration, spells disaster for the conservation of many bird species,
increases saline water in the rivers etc. Altering these habitat characteristics can have deleterious
impacts on both in-stream biota and the associated riparian habitat.80

Depletion of sand in the streambed causes the deepening of rivers which may result in
destruction of aquatic and riparian habitats as well.81 Also, extraction of alluvial material from
within or near a streambed has a direct impact on the stream's physical habitat characteristics.82
Hence, as seen above there are several adverse effects which State of Mandeville will go through
being along the border with State of Karak across the Aishani River.

79
Id
80
Deepak Kumar and others v. State of Haryana and others 2012 (4) SCC 629
81
Appi Reddy v. The Government of Andhra Pradesh 2013 (6) ALT 523
82
Kollidam Aaru Pathukappu Nala Sangam v. Union of India 2014 (5) CTC 397
3.1.2 Lowering of Ground Water Table

It is also contended in this court that not only does the excessive sand mining affect the habitat
but it also causes lowering of riverbed level as well as river water level resulting in lowering of
groundwater table due to excessive extraction and draining out of groundwater from the adjacent
areas. 83 This may cause shortage of water for the vegetation and human settlements in the
vicinity. Excessive pumping out of groundwater during sand mining results in depletion of
groundwater resources causing severe scarcity and affecting irrigation and potable water
availability.84

The prime concern in interfering in the matters of sand mining has been attributable to
the depletion of ground water in the neighbouring areas85. Several cases in the past have agreed
that one of the numerous major adverse effects of sand mining is the reduction in the ground
water table in the surrounding areas86. Also, along with various ecological factors the State of
Mandeville will also get affected due to scarcity of water available..

3.1.3 Pollution of Ground Water

The GSI has found that in case the river is recharging the groundwater, excessive mining will
reduce the thickness of the natural filter materials (sediments), infiltration through which the
ground water is recharged. The pollutants due to mining, such as washing of mining materials,
wastes disposal, diesel and vehicular oil lubricants and other human activities may pollute the
ground water.87

It was also stated that the ground water level was being depleted as a result of the mining
activity. Further, the query dust that comes out of mining pits is a serious health hazard for
human population living nearby and also the wild animals inhabiting in close proximity88. It has
also been proven that the mining of aggregates in rivers has led to severe damage to river,
including pollution and changes in pH levels. Removing sediment from rivers causes the river to

83
Gokul Das v. Geologist and others 2009 (3) KHC 821
84
by Geological Survey of India, supra.
85
V. Bhaskar v. State of A.P. 2004(3)ALD341, D. Viswanatha Reddy and Co. Kurnool v. Government of A.P.
2002(4) ALD 161
86
M.C. Mehta v. Union of India AIR 2004 SC 4016: III (2004) SLT 41, M . Palanisamy v. The State of Tamil Nadu
AIR 2012 Mad215
87
Geological Survey of India, supra.
88
M. C. Mehta v. Union of India (2004) 12 SCC 118
cut its channel through the bed of the valley floor, or channel incision, both upstream and
downstream of the extraction site. This leads to coarsening of bed material and lateral channel
instability. It can change the riverbed itself.89

Furthermore, setting the tone of the precautionary principle, an established norm of international
environmental law90, the ‘Precautionary Principle’ makes it obligatory for a state to anticipate,
prevent and attack the causes of environmental degradation.91 The court has also stated that all
precautionary measures must be taken during sand mining operations for conservation and
protection of endangered flora and fauna92.

In another case, the Supreme Court held in Principle 15 of Rio Conference of 1992 relating to the
applicability of precautionary principle which stipulates that where there are threats of serious or
irreversible damage, lack of full scientific certainty shall not be used as a reason for proposing
effective measures to prevent environmental degradation. If an activity is allowed to go ahead,
there may be irreparable damage to the environment and if it is stopped, there may be irreparable
damage to economic interest. In case of doubt, however, protection of environment would have
precedence over the economic interest. Precautionary principle requires anticipatory action to be
taken to prevent harm. The harm can be prevented even on a reasonable suspicion. It is not
always necessary that there should be direct evidence of harm to the environment.93

The Supreme Court also held that a decision making authority must give due weight and regard
to ecological factors such as the environmental policy of the government and the sustainable use
of natural resources. A government decision that fails to take into account relevant
considerations affecting the environment is invalid.94

89
State of NCT of Delhi v. Sanjay (2014) 2 SCC 532
90
See also: Vellore Citizens’ Welfare Forum v. Union of India (1996) 5 SCC 647, M.C. Mehta v. Union of India
(1997) 2 SCC 353, N.D. Jayal v. Union of India (2004) 9 SCC 362, Indian Council for Enviro-Legal Action v.
Union of India (1996) 5 SCC 281, A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and Ors. (1996) 5
SCC 718, State of Tamil Nadu v. State of Kerala and Anr. AIR 2014 SC 2407, Goa Foundation and Peaceful
Society v. Union of India and Ors. 2014 (4) FLT 60, Nisarga Nature Club v. Shri Satyawan B Prabhudessai,NGT
Application No. 29/2012, M/s. Laxmi Suiting & Ors. v. State of Rajasthan W.P.(C) No.3121/2013
91
M.C. Mehta v. Union of India (199) 7 (3) SCC 715
92
Sandeep Shah v. State of Rajisthan S.B. Civil Writ Petition No.10480/2013
93
M.C. Mehta v. Union of India AIR 2004 SC 4016
94
Pleasant Stay Hotel v. Palani Hills Conservation Council 1995 (6) SCC 127, 136,139,140
Hence, the change in river course due to sand mining, is a proof of the fact that the State of
Karak did not wisely set the tone to prevent or anticipate the impact before granting the license
for sand mining. Moreover, now that the government of Karak has failed to take all the aspects
into account which later resulted in environment degradation, the said allowance since the
dispute is raised shall be held to be invalid.

3.2 Right to life as guaranteed under Article 21

It is humbly contended in front of this Hon’ble court that according to the Environment
(Protection) Act, 1986, Section 2(a) states that ‘environment includes water, air and land and the
interrelationship which exists among and between water, air and land, and human beings, other
living creatures, plants, micro-organism and property.95

3.2.1 Right to Wholesome Environment

Through the expansion of the scope of Article 2196 in the recent past, the Supreme court held that
every person enjoys the right to a wholesome environment, which is a facet of the right to life
guaranteed under Article 21 of the Constitution.97

Article 21 of the Constitution is interpreted by the courts to include in this right to life, the right
to clean and decent environment. Right to decent environment, as envisaged under Article 21 of
the Constitution also gives, by necessary implication, the right against environmental
degradation. It is in the form of right to protect the environment, as by protecting environment
alone can we provide a decent and clean environment to the citizenry.98

Enjoyment of life includes the right to live with human dignity which encompasses within its
ambit, the protection and preservation of environment, ecological balance free from pollution of
air and water, sanitation, without which life cannot be enjoyed.99 It therefore, becomes the

95
The Environment (Protection) Act, 1986 available at http://envfor.nic.in/legis/env/env1.html
96
Article 21,‘No person shall be deprived of his life or personal liberty except according to procedure established
by law.’
97
Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh AIR 1988 SC 2187. Subhash Kumar
v. State of Bihar (1991) 1 SCR 5
98
M/s Sterlite Industries Ltd. v. Tamil Nadu Pollution Control Board (2013) 1 NGT R 368
99
Chameli Singh v. State of Uttar Pradesh AIR 1996 SC 1051, 1053
legitimate duty of the courts as the enforcing organs of the Constitutional objectives to forbid all
action of the State and the citizen from upsetting the environmental balance.100

There is a constitutional imperative on the State Government and the municipalities, not only to
ensure and safeguard proper environment but also an imperative duty to take adequate measures
to promote, protect and improve both the man-made and the natural environment.101

Moreover, it clearly has been laid that deterioration of environment arises from abuses of
economic and other freedoms. As observed, Industrialisation, urbanisation, explosion of
population, over- exploitation of resources, depletion of traditional resources of energy and raw
materials and the search for new sources of energy and raw materials, the disruption of natural
ecological balances, the destruction of a multitude animal and plant species for economic reasons
are all the factors which have contributed to environmental deterioration.102

It is the duty of State of Mandeville to ensure that its citizens have Right to Environment as it is a
part of their fundamental right. And not only are they entitled of it, they also deserve to have the
Wholesome of it and it shall not be compromised for an excuse for livelihood or economic
interests.

3.2.2 Right to Livelihood

It is humbly contended that continual of the sand mining activity across the River Aishani is
violative of Article 21 of the Constitution as the right to life includes right to livelihood under the
said Article.103 The courts have held that depriving a person of his right to livelihood would
amount to deprivation of his life.104

Moreover, through Article 38 and 39 of the Constitution which provides that a state must strive
to promote the welfare of the people by protecting all their economic, social and political rights.

100
T. Damodar Rao v. The Special Officer, Municipal Corporation of Hyderabad AIR 1987 AP 171,181.
101
Virender Gaur v. State of Haryana 1995(2) SCC 577,
102
Shri Sachidanand Pandey v. State of W.B. AIR 1987 SC 1109
103
Delhi Transport Corporation v. D.T.C. Mazdoor Congress 1991 AIR 101, Samatha v. State of Andhra Pradesh
&Ors. AIR 1997 SC 3297, Chief Medical Officer, General Hospital, Bhiwani and Ors.v. Vijay Kumar and Ors.
2016 (148)FLR 67, Satya Deo Mishra v. State of U.P. and Anr. 1996(94) ALJ 464, Madhu Kishwar and others v.
State of Bihar and others AIR 1996 SC 1864
104
Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180
These rights include the right to livelihood.105 The happiness of the people is the ultimate aim of
a welfare state and a welfare state would not qualify as one, unless it strives to achieve the
same.106

The State of Mandeville is excessively dependent on its tourism and nature which is located on a
vast area across the border region. As mentioned above, the excessive sand mining is causing an
adverse impact on the environment. Subsequently, even the economy is getting affected causing
infringement of Right to livelihood and violation of basic fundamental rights.

3.2.3 Other principles

Supreme Court accepted a major principle under the public trust doctrine107 for the protection of
natural resource. The Court used the Public Trust Doctrine in this case to restore the environment
to its original condition.108 Briefly, this doctrine postulates that the public has a right to expect
that certain lands and natural areas will retain their natural characteristics. The State is the trustee
of all natural resources, which are by nature meant for public use and enjoyment. The State as a
trustee is under a legal duty to protect the natural resources.

Also, under the parens patriae theory109 it is the obligation of the State to protect and take into
custody the rights and the privileges of its citizens for discharging its obligations. Our
Constitution makes it imperative for the State to secure to all its citizens the rights guaranteed by
the Constitution and where the citizens are not in a position to assert and secure their rights, the
State must come into picture and protect and fight for the rights of its citizens.110

Another doctrine that can possibly be derived in current situation is Right To Intergenerational
Equity from Article 21, which says, there is a right of every generation of human beings to
benefit from the cultural and natural inheritance from past generations as well as the obligation

105
Senior Divisional Commercial Manager v. S.C.R. Caterers, Dry Fruits, Fruit Juice Stalls Welfare Association
2016 (2) SCALE 38
106
Lala Ram v. Union of India, (2015) 5 SCC 813
107
Centre for Public Interest Litigation and Ors. v. Union of India and Ors. AIR 2012 SC 3725, State of Tamil Nadu
v. State of Kerala and Anr AIR 2014 SC 2407
108
M.C. Mehta v. Kamal Nath (1997)1 SCC 388
109
Shankar Kisanrao Khade v. State of Maharashtra 2013 (4) ABR 567. According to Black's Law Dictionary 1003
(5th ed. 1979), parens patriae plainly means 'parent of the country' and refers traditionally to the role of the State as
a sovereign and guardian of persons under legal disability.
110
Charan Lal Sahu v. Union of India AIR 1990 SC 1480
to preserve such heritage for future generation. The doctrine requires conserving the diversity
and quality of biological resources, and of renewable resources such as forests, water and
soils.111

In the current situation the State of Mandeville is under the obligation to not only look after the
current ecological impact and its effect on the economy but also to look after the welfare of its
future generations which it is obliged to and which is not possible unless the excessive sand
mining is put to a halt.

111
State of Himachal Pradesh v. Ganesh Wood Products & Ors. 1996 AIR 149