[Type text]

R-06

BEFORE THE HONB”LE SUPREME COURT OF UNION

OF SINDIA

IN THE CASE CONCERNING

SAVE BLUE…………………………………………………....PETITIONER

V.

UNION OF SINDIA………………………………………….…RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................................... II
LIST OF ABBREVIATIONS ............................................................................................. IV
LIST OF AUTHORITIES.................................................................................................... VI
STATEMENT OF JURISDICTION……………………………………………………….VIII
STATEMENT OF FACTS .................................................................................................. IX
ISSUES RAISED ................................................................................................................. XI
SUMMARY OF ARGUMENTS .......................................................................................... XII
ARGUMENTS ADVANCED ............................................................................................... 1

1. WHETHER THE WRIT PETITION FILED UNDER ART. 32 OF THE CONSTITUTION

OF INDIA IS MAINTAINABLE…………………………………………………………….1

1.1.Whether the present writ petition has been filed prematurely…………………….…….1

1.2.Whether this honourable court would be justified in interfering with a policy decision.1

2. Whether the project under CRZ affects the environment endangering

ecosystem…………………………………………………………………………………….3

2.1 In consonance with the provisions of various Acts…………………………………..3

2.1.1 In accordance with the Forest Conservation Act, 1980………………………..3
2.2 The Principle of Sustainable Development is Adhered to in the Construction Project...4

2.3 Whether the developments took place out of necessity………………………………5

3. WHETHER THE COASAL REGULATION ZONE IS CONTARAY TO THE NATIVE

TRIBAL PEOPLE RIGHT TO LIVELIHOOD……………………………………………..7

3.1 Whether the government decision violate the fundamental right granted under art. 21….7

3.1.1 No violation of Art. 21 of the Constitution………………………………………….7

3.2 Whether it is violating article 19………………………………………………………….8

3.3Whether the rehabilitation present case is violate the right of tribal people………….…..10

3.4 Reason for which government is going for development in coastal regulation zone........10

3.5 The developments will Provides Employment opportunities……………………..……...11

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4. Whether the CRZ giving excessive discretion to the union of sindia is ultra vires of the
parent law and the constitution.....................................................................................12
4.1 That the policy decision has not violated Article 14………………………………..12

4.1.1 That the ordinance is based on intelligible differentia……………………….12

4.2.That there is no violation of Article 19……………………………………………12

4.2.1 That there is no violation of Art. 21 of the Constitution of Sindia………….13

PRAYER……………………………………………………………………………………15

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LIST OF ABBREVIATIONS

¶ paragraph

AIR All India Reporter

Anr. Another

Art. Article

Cr.P.C. Code of Criminal Procedure

CriLJ Criminal Law Journal

FIR First Information Report

HC High Court

Hon‟ble Honourable

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IPC Indian Penal Code

CRZ Costal Regulation Zone

Ors. Others

Sec. Section
.

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Courts Report

v. Versus

Vol. Volume

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LIST OF AUTHORITIES
Cases
Andhra Industrial Works v.. Chief Controller of Imports and Ors, AIR 1974 SC 1539 ¶ 10,
Guruvayur Devaswom Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546 ¶ 50,
BALCO Employees Union (Regd.) v. Union of India (2002) 2 SCC
333…………………………………………………….……………………………………….1
Romesh thappar v. union of india, AIR 1950 SC
124………………………………………………………………..……………………………1
BALCO Employees Union (Regd.) v. Union of India,2001 AIR SCW 5135………..……….2

SC. Cooper v. Union of India, [1970] 3 SCR 530; Fertilizer Corporation Kamgar Union v.
Union of India, (1981)ILLJ 193 SC; R.K. Garg v. Union of India, AIR 1981 SC 2138; G.B.
Mahajan v. Jalgaon Municipal Council, AIR 1991 SC 1153………………………………….2

State of M.P. and Others vs. NandlalJaiswal and Other, (1986) 4 SCC 566……………….…2

Sushila Devi v. Ramnandan Prasad, AIR 1976 SC 177; SatyadhyanGhosal v. Sm. Deorajin,
AIR 1960 SC 941;……………………………………………………………………………..2

M.C. Mehta v. union of india, AIR 2004 SC 4016……………………………………………3

T.N. GodavarmanTirumulpad v. Union of India, 1997 (2) SC 67; B.S. Sandhu v. Govt. of
India,2014(7)SCALE390………………………………………………………………….…..4

Vellore Citizen Welfare Forum vs. Union of India, WP 914/1991

(1996.04.26)…………………………………………………………………………………5

G. Sundarrajan v. Union of India, 2013 (6) SCC 620…………………………………………6

Indian Hotel and Restaurants Association and Ors . vs. The State of Maharashtra and Ors,
(2013) 8 SCC 519……………………………………………………………………………8

G. Sundar Rajan v. Union Of India, 2013 6 SCC 620…………...……………………………9

Narmada Bachao Andolan vs. union of India, (2000) 10 scc

664……………………………………………………………………………………………10

Gulf Ry. v Ellis, (1897) 163 US 150……………………………………………………….12

Missouri Ry. v. Humes, (1885) 115 US 512…………………………………………………12

Jagdish Pandey v. Chancellor, Bihar University, AIR 1968 SC 353………………...………12

Shashikant Laxman Kale v. Union of India, AIR 1990 SC 2114 ; Mohd. Hanif Quershi v.
State of Bihar, AIR 1958 sc 731……………………………………………………….…….12

State of Kerala v. Peoples Union for Civil Liberties,(1972) 2 Scc 50……………………….13

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Kuttisankaran Nair v. State of Kerala, AIR 1965 Ker 161…………………………………...13

T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481…………………………13

Court on its own motion v. Union of India, 2012 (12) SCALE 307; Kharak Singh v. State of
U.P, AIR 1963 SC 1295; Waman Rao v. Union of India, (1981) 2 SCC 362; Bachan Singh v.
State of Punjab, AIR1980 SC 898……………………………………………………………13

Court on its own motion v. Union of India, 2012 (12) SCALE307………………………….13

Obbayya Pujary v. Member-Secretary, Karnataka State Pollution Control Board, Bangalore,

AIR 1999 kant 157 (165)…………………………………………………………………….13

Olga v. Bombay Municipal Corporation, AIR 1986 SC 180………………………………...13

Suresh Kumar Koushal and Ors. V. NAZ Foundation and Ors.(2014) 1 scc 1……………...13

Chameli Singh v State of UP, (1996) 2 scc 549………………………………………….13

Modern dental college and research centre and other vs. State of Madhya Pradesh, (2005) 6
scc 535....…………………………………………………………………………………….14

LEGISLATIONS REFERRED
Constitution of india 1950
Environment Protection Act, 1986
Forest (conservation) Act, 1980
Scheduled Tribes & Traditional Forest Dwellers Act 2006
National Green Tribunal Act, 2010
CRZ Notification 1991,2011 & 2019

WEBSITES REFERRED
Manupatra online resources, http://www.manupatra.com
SCC online, http://www.scconline.co.in
Oxford Dictionary, http://www.oxforddictionaries.com

BOOKS REFERRED
Gurdeep singh, Environmental Law (2nd ed. 2016)
P Leelakrishnan, Environmental Law In India (4th ed. 2016)

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STATEMENT OF JURISDICTION
The petitioner has filed this writ petition under art. 32 of the constitution of India questioning the
validity of the special regulations 2.5 & 5.4.1 of the CRZ 2019. The respondent mentions that no
violation of rights has taken place. Therefore this Hon‟bleSupreme Court need not entertain its
jurisdiction in this writ petition.

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STATEMENT OF FACTS
INTRODUCTION
The Union of Sindia is the second largest populated country in the world with second largest
growing economy &youngest nation in the world. It gained independence last century. Like
other developing countries Sindia also faces excessive energy shortage problem. The coastal
region makes Sindia one of the preferred destination for Beach tourism. Tourism marks almost
9% approximately of the nations GDP.Hamanthaisland is the union territory of Sindia. Basic
occupation of people residing in island is fishing, tourism & a little bit of agriculture. The
Sakura Island, the smallest of all is the home of Saakuria tribe one of the most indigenous in the
world with. no outside world touch and the island is a Prohibited Area. The Hamantha island
population has increased from 2.5 lakhs in 2001 to 4 lakhs in 2011 wherein the tribal population
decreased from 2500 to 2000.

In 2018 Parliamentary election, the National Democratic Party came to power in the centre and
also in the island. Many developments have been brought up like Optic Fibre Connection Cable
under Connect Sindia Project to enhance speed of internet being the major project. Efforts are
made to enhance tourism. Government is running development projects in hamantha in
accordance with CRZ regulation 2019. Like-ocean power plant, resort development and also
sanctioned a huge bridge project to connect Tara island. The government is promoting sustainable
development in the island and also trying to conserve the unique environment of coastal & marine
areas. People rose protest against the development in hamantha.The agitations were done stating
the Regulation as “Coast Curtailment Regulation”. Slogans were shouted calling the CRZ
regulation as a suppression of Islanders interest rather than facilitating.

STATUS OF SINDIA IN INTERNATIONAL SUMMIT

Sindia is a prime member of SAARC and several other world forums playing a major role in
world arena. 17 Sustainable Development Goals were adopted in 2015 and thereby in
collaboration with the United Nations Development Programme (UNDP) 3 projects were
implemented since 2015. Sindia has also hosted the World Sustainable Development Summit in
April 2019 wherein the parties agreed to move towards Renewable source of energy and rural
development as its top aim. It is also the most anticipating member of reforms in United Nations
Security Council (UNSC). In April 201 8, International Renewable Energy Agency (IRENA)
held a conference in March 2019 under the United Nations Environment Programme (UNEP), the
conference passed a resolution wherein the countries including Sindia agreed to increase
renewable source of energy by 2 percent annually in nations total energy source.

GEOGRAPHICAL POSITION OF SINDIA & ITS UTs

Sindia has a total coastline of 7300 km approximately, out of which mainland coastline consists
of 6100 km and islands’ coastline consists of 1197 km. Its coastline consists of 9% approximately
of the nations GDP. Ocean power projects was launched under Sustainable Development
Goals(SDG).The coastal region makes Sindia one of the preferred destination for Beach tourism.
The coastal region is thitheart of economy as Sindia’s trade importance is largely due to its
coastal location.

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GOVERNMENT POLICIES
Tourism in Hamantha is promoted by Sindian Tourism Ministry (STM), a government of Sindia
undertaking. Sakura is the smallest of all island and is home to 6 indigenous tribe. Saakuria is a
prohibited area with no outside world touch. Power shortage is a major problem on the island.sea
turbine generator projects were initiated.The connectivity was enhanced from 4 major cities
through Air and Sea. The island since 2015 received a lot of tourist which is 30% more than
usual. Optic fiber connection cables were bought to island for internet connectivity. Huge bridge
project was sanctioned to connect Tara island which is close to Mannarisland(which is alleged to
be military camp). The Government exercised the power under CRZ provisions pertaining to
Hamantha Island.

CRZ REGULATIONS
After 2018 parliamentary election, government renotified the CRZ regulations which came into
effect from 18th January 2019.

2.5 - CRZ V-The Hamantha group of islands shall exclusively come under CRZ V

5.4.1 - The restrictions and prohibition applied to CRZ I under the CRZ 2019 shall apply to the
CRZ V.
Provided that nothing contained in any law, rule and the CRZ regulation 2019 shall affect the
exclusive power of Union of Sindia to limit or impose Prohibition and Regulation to the said
CRZ V including power to modify the CRZ limit and No development Zone limit except for
island in ecologically sensitive zones i.e. Sakura Island in advancement of development and
public interest of the Nation.
Provided all provision in any law contrary to this regulation shall remain inoperative till the
regulation is in operation to the extend needed to accomplish the purpose of the regulation. Any
such laws shall be operative only when the Government of Sindia specifically permits expressly
through order the operation of such laws.

PIL FILED AGAINST UNION OF SINDIA

There is a massive protest against policies of Sindia in the capital of Hamantha. The agitations
were done stating the Regulation as “Coast Curtailment Regulation”. “SAVE BLUE” is an
organisation devoted to research, development of marine ecosystem and coastal protection.SAVE
BLUE organization having top native people and former Member of Parliament including
Mr.Saarkar of opposition party Union People Party (UPP) as members filed a PIL in the Supreme
Court questioning the validity of the special regulations 2.5 & 5.4.1 of the CRZ 2019.

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ISSUES RAISED
-I-

Whether the PIL filed by “Save Blue”seeking interference of supreme

court is maintainable?

-II-

Whether the project under CRZ affects the environment endangering

ecosystem?

-III-

Whether the CRZ is contrary to the native tribal people’s right to

livelihood?

-IV-

Whether the CRZ giving excessive discretion to the Union of Sindia is

ultravires of the parent law and the Constitution?

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SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THE PIL FILED BY “SAVE BLUE” SEEKING

INTERFERENCE OF SUPREME COURT IS MAINTAINABLE?

The respondents contend that there has been no violation of fundamental right in the present case.
Moreover, the petition has been filed prematurely. A petition can be filed under Art. 32 of the
constitution only when the fundamental right is violated. Also, the alternative remedy has not
been exhausted. Thus, the writ petition is not maintainable.

ISSUE II: WHEHER THE PROJECT UNDER CRZ AFFECTS THE

ENVIRONMENT ENDANGERING ECOSYSEM?
It is humbly submitted that the project is according to the provisions of the Environment
Protection Act of 1986, Forest Conservation Act of 1980, Mines and that there has been no
violation of any of the above acts. The respondent is completely aware of the apprehensions
developed in the minds of the tribal community of Hamantha and therefore has laid down
stringent safeguard measures to protect the environment while simultaneously contributing to the
economic growth and development of the country. It is submitted that the project is of utmost
necessity to solve the problems of the island and also to provide livelihood security to the local
communities in the coastal areas and to promote sustainable development based on scientific
principles taking into account the dangers of natural hazards, sea level rise due to global
warming.

ISSUE III: WHETHER THE CRZ IS CONTRARY TO THE NATIVE

TRIBAL PEOPLES RIGH TO LIVELIHOOD?
The policy decision has a sound reason behind it. Also, it is not violative of the fundamental
rights enshrined in the part III of the Constitution. It is humbly submitted that no violation of
fundamental rights of the indigenous tribal community has occurred since; there is no special
right has been conferred to the tribal communities. The concept of sustainable development has
been adhered to. Thus, they are not violative of the rights of the people. It is further submitted
that there has been no restraint imposed on the indigenous people i.e., against their fundamental
rights and that the special provision of CRZ is merely to boost development and connectivity with
the islands on par with environment laws.

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ISSUE IV: WHETHER THE CRZ GIVING EXCESSIVE DISCRETION

TO THE UNION OF SINDIA IS ULTRAVIRES OF THE PARENT LAW
AND THE CONSTITUTION?
The respondent submitted before the honourable supreme court of sindia that the
regulation brought by government for implementing development project in coastal
regulation zone is not ultra vires of the parent law of the constitution. As in the case of
Modern dental college and research centre and other vs. State of Madhya Pradesh, the
court set four parameters for scrutinising the any act brought by the government i.e.
First, to enquire whether the purpose of imposing that limitation is legitimate. Second, it
must be established that the measures are rationally connected to fulfilling purpose.
Third, no alternative measures must be available that fulfil the same purpose with a
lesser degree of limitation, Fourth and finally, the relative importance of achieving the
end sought to be fulfilled by the measure ought to be adjudged vis-à-vis the social
importance of preventing limitations on Article 19(1)(g). The regulation brought by
government of sindi is not ultra vires to the parent law of the constitution because it
stands on all parameter set by the supreme court in the given case .

MEMORANDUM FOR THE RESPONDENT

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ARGUMENTS ADVANCED
1
1. WHETHER THE WRIT PETITION FILED UNDER ART. 32 OF THE
CONSTITUTION OF INDIA IS MAINTAINABLE.

A Public Interest Litigation can be filed under Article 32 of the Constitution for
enforcement of Fundamental Rights1, as guaranteed by part III of the Constitution.2In
the present case, there has been no violation of the fundamental rights since, the special
provisions of CRZ is merely to boost development and connectivity with the islands on
par with environment laws.

1.1.Whether the present writ petition has been filed prematurely

The respondent submits that the Court has held that only if there is a violation of
Fundamental Rights can it step in under the Jurisdiction of Article 323. The petitioner is
raising a mere scholarly objection, without any locus standi. Nothing has been done to
the environment and in fact the amendment in the new notification of this CRZ 2019 is
to conserve and protect the unique environment of coastal stretches and marine areas.
Hence when there is no damnus, the Petitioner cannot seek a remedy.

1.2.Whether this honourable court would be justified in interfering with a policy

decision
The respondent most humbly submits that the Supreme Court has long held that
interference into policy actions is not within the its jurisdiction as reiterated in the recent
Iodine Salt Case.It has been held that a writ petition cannot be maintainable if its sole
purpose is to question a policy decision of the Government.

The position of law on the matter of policy decisions is quite clear, from decisions such as

1
Article 32(1) when r/w 32(2) itself states that, Article 32 can only be invoked for enforcement of
rights as guaranteed by Part III and, for issuing writs to enforce Rights as guaranteed under Part III.

2
Andhra Industrial Works v.. Chief Controller of Imports and Ors, AIR 1974 SC 1539 ¶ 10,
Guruvayur Devaswom Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546 ¶ 50, BALCO
Employees Union (Regd.) v. Union of India (2002) 2 SCC 333.

3
Romesh thappar v. union of india, AIR 1950 SC 124
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BALCO Employees Union4, and a host of other cases. The list is truly extensive5, as the
underlying principle is sound in law. Unless there is prima facie evidence to prove that
exercise of discretion has been arbitrary, unreasonable or mala fide, theCourt cannot step into
the shoes of the Government to decide the validity of a policy6. It is a matter of public policy
that the Court not permit litigations on the same issue be raised in perpetuity 7, as no public
undertaking will ever succeed if such a practice is encouraged. Thus, the policy decision of
the Government regarding the CRZ 2019 cannot be questioned before the court of law.Thus,
the respondents submit that the present writ petition in not maintainable for the aforesaid
reasons.

4
BALCO Employees Union (Regd.) v. Union of India,2001 AIR SCW 5135 “It was submitted … that
the wisdomand advisability of economic policies of Government are not amenable to judicial review.
It is not for Courts to consider the relative merits of different economic policies. Court is not the
Forum for resolving the conflicting clauses regarding the wisdom or advisability of policy..” 14
5
SC. Cooper v. Union of India, [1970] 3 SCR 530; Fertilizer Corporation Kamgar Union v.
Union of India, (1981)ILLJ 193 SC; R.K. Garg v. Union of India, AIR 1981 SC 2138; G.B.
Mahajan v. Jalgaon Municipal Council, AIR 1991 SC 1153.

6
State of M.P. and Others vs. NandlalJaiswal and Other, (1986) 4 SCC 566

7
Sushila Devi v. Ramnandan Prasad, AIR 1976 SC 177; SatyadhyanGhosal v. Sm.
Deorajin, AIR 1960 SC 941;

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2. Whether the project under CRZ affects the environment

endangering ecosystem?
The respondent humbly submits that the project under CRZ doesn’t affect the environment
endangering ecosystem. It is further submitted that all reasonable measures for the protection of
the environment and sustainable development have been initiated by the respondent. In fact the
basic aim and purpose of the projects brought under CRZ 2019 is to conserve and protect the
unique environment of coastal stretches and marine areas and to promote sustainable
development based on scientific principles taking into account the dangers of natural hazards , sea
level rise due to global warming. The respondent is completely aware of the apprehensions
developed in the minds of the people of Sindia and therefore has laid down stringent
safeguard measures to protect the environment while simultaneously contributing to the
economic growth and development of the country. In M.C.Mehta v. Union of India,8it was
held that it is possible to carry on development activity without degrading the environment,
by following certain measures to protect the environment. In that eventuality, the
development has to go on because one cannot lose sight of the need for development of and
power projects including the need to improve employment opportunities and the generation
of revenue as the islands primary occupation is tourism and fishing with little agriculture and
as tourism marks approx. 9% of tourism the union of sindia is bound to bring projects.
2.1 In consonance with the provisions of various Acts
The project clearance is in consonance with the Environment Protection Act, 1986 and the
Forest Conservation Act, 1980 in the performance of the respondent government’s duty to
protect the environment from any damage and protect the people. The respondent totally
believes in the striking of balance between the environment protection and economic
development.

2.1.1 In accordance with the Forest Conservation Act, 1980

It is submitted that the respondent alone has the power under Section 2 of the Forest
Conservation Act9, 1980 to approve any activity that results in the conversion of forests for
important to direct the Hon’ble court’s attention to Section 3 of the Scheduled Tribes and

8
AIR 2004 SC 4016
9
Section 2 of the Forest Conservation Act 1980 :- Notwithstanding anything contained in any other law for the
time being in force in a State, no State Government or other authority shall make, except with the prior
approval of the Central Government, any order directing-

(i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time
being in
force in that State) or any portion thereof, shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for any non-forest purpose;

(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private
person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by
Government;

(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that
land or portion, for the purpose of using it for reafforestation.

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non- forest purposes10 and de-reservation of forests. In addition to the submissions, it is

Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 which
enumerates various rights of the traditional forest dwellers with respect to the use of the
forest land and its products. This also includes the restriction on production of non-
conventional source of energy in the forest areas. In this case, the government declaring
two islands No development zone as 10 meter limit from HTL and inviting bidding for
setting resorts was done for promoting economic growth while also respecting the
conservation principles of coastal regions. This was it is submitted that every act done in
furtherance of the project right from the ocean power plant to construction of bridge
followed the procedure laid down.

The respondent would also like to submit that the decision of the government to sanction a
bridge to connect the Tara island one of the restricted island(due to its rare hora and fauna) with
the main land via sea is keeping in mind defence and security11 and as the Tara island is closest to
Mannar island which is alleged to be a military camp and has been given on lease to mandarina
the north-east neighbour of sindia by Swamabhumi the neighbouring state of sindia and here the
respondent would also like to state that the government respects the unique ecosystem and the
only reason the government has sanctioned the bridge is keeping in mind the security prospective
as the government has mentioned in the regulation of CRZ 2019 that the government will not
modify the CRZ limit and no development zone of saakura island a prohibited area due to its
indigenous tribes i.e. the government will not interfere with their world keeping in mind the
public interest of the nations.

2.2 The Principle of Sustainable Development is Adhered to in the Construction Project

The RESPONDENT contends that the principle of sustainable development has been strictly
observed while launching the huge ocean power project. The Courts have balanced priorities
while deciding environmental matters in the past12. The doctrine of Sustainable Development

10
T.N. GodavarmanTirumulpad v. Union of India, 1997 (2) SC 67; B.S. Sandhu v. Govt. of
India,2014(7)SCALE390
11
On 25 June 2015, MoEF issued a draft Notification in light of the amendment to CRZ-2011 proposed by
MCZMA. The draft Notification reads as under:
In the notification of the Government of India in the erstwhile Ministry of Environment and Forests, dated the
6th January 2011 published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii) vide SO.
19(E) dated the 6th January, 2011-
(A) In paragraph 3, in sub-paragraph (iv), for item (a), the following item shall be substituted, namely:—
“(a) required for setting up, construction or modernisation or expansion of foreshore facilities like ports,
harbours, jetties, wharves, quays, slipways, bridges, sealink, road on stilt, road on reclaimed surface without
affecting tidal flow or water, and such as meant for defence and security purpose and for other facilities that are
essential for activities permissible under the notification:
12
M.C. Mehta (Taj Trapezium Matter)

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was implemented by the Supreme Court in the case of Vellore Citizen Welfare Forum vs.
Union of India13. In the instant case, the Supreme Court held that the precautionary principle
and polluter pays principle are a part of the environmental law of India. The court also held
that: "Remediation of the damaged environment is part of the process of 'Sustainable
Development' and as such polluter is liable to pay the cost to the individual sufferers as well
as the cost of reversing the damaged ecology."

Here the ocean power plant sea turbines generate power project has been launched to meet
the power crisis as the Hamantha island falls in the east region and the eastern and southern
states are facing excessive energy shortage. As Sindia is a developing country, certain
ecological sacrifices are deemed necessary to ensure the benefit of future generations. This
ocean power plant project becomes more important keeping in mind the excessive power
shortage in this territory its also one of the cause of dissatisfaction among the people of
Hamantha and it was also noted that in 2015 when the connectivity was enhanced through
four main cities the island recieved a lot of tourist which was 30% more than the usual so
keeping in mind the economy purpose the public interest of larger group is vested and as the
basic aim and purpose of this CRZ regulation is to promote sustainable development based on
scientific principles taking into account the dangers of natural hazards, sea level rise due to
global warming.

2.3 Whether the developments took place out of necessity

The respondent herein submits that the developments in the region took place out of necessity
and the remoteness of the island is one of the major challenges and as the island has the
largest tourism potential in Sindia and as tourism is the islands primary occupation the
government of Sindia was left with no choice but to develop the island and proceeding
forward the govt. declared two islands no development zone as 10 m from high tide line and
bidding were invited for setting resorts in the island for economic development and rural
development was also one of the aim of World Sustainable Development Summit 2019 of
which sindia is also a member and this conference was hosted by sindia itself so by
developing these two islands the government of sindia is not only trying to solve the
challenges of this island but also fulfilling its international obligations and also promoting
economic growth while also respecting the conservation principles of coastal region The
Doctrine of Public Necessity i.e., the welfare of the people is of paramount importance and is
to be applied in the instant case14.To achieve the larger public good, the property, liberty and
life of an individual can be placed in jeopardy in the case of existing, immediate and
overwhelming necessity15

13
The Petitioners therein had filed a petition in public interest under Article 32 of the Constitution of India
against the pollution caused by discharge of untreated effluent by the tanneries and other industries in the river
Palar in the State of Tamil Nadu.
14
RekharaniMaitra& Ors. v. Additional District Magistrate & Ors. C.R. No. 9063 (W) of 1983
15
Malvererv. Spinke(1537) Dyer, (Part I), 356.

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The important principle that has been ingrained is that if a project is beneficial for the larger
public, inconvenience to smaller number of people is to be accepted. It has to be respectfully
accepted as a proposition of law that individual interest or, for that matter, smaller public
interest must yield to the larger public interest. Inconvenience of some should be bypassed
for a larger interest or cause of the society16. The development of the these projects to solve
the challenges of the territory and to enhance tourism in this region besides livelihood
security to the other community is the most feasible and an utmost

16
G. Sundarrajan v. Union of India, 2013 (6) SCC 620

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3. WHETHER THE COASAL REGULATION ZONE IS CONTARAY TO

THE NATIVE TRIBAL PEOPLE RIGHT TO LIVELIHOOD.

The respondent humbly submits that government decision of doing development work in costal
regulation zone in not contrary to native tribal people`s right to livelihood. Establishment and
development in coastal regulation zone is based on strict reason.

The decision of government of going forward for development work nearby coastal regulation
zone does not violate any fundamental right grunted under the constitution of sindia. The right
grunted under article 19(1)(g), i.e.to practice any profession ,or to carry on any occupation trade
or business .The very article i.e. article 19 empower the government to put reasonable restriction
for implementing the policy in interest of the sovereignty and integrity of India .The concept of
livelihood strategy has become central to development policies, programs and practices in recent
year throughout the world .Livelihood is a set of economic activities ,involving self employment
or wage –employment by using one`s endowment (human and material ) to generate adequate
resources (cash and no cash) for meeting the requirement of self and the household, usually
carried out repeatedly and become a way of life. However the government act does not violate
any right of tribal people, even though the government is very much concern about the livelihood
of tribal people and for which government is going for the rehabilitation of native people, the
rehabilitation is not confined to the shifting of people from one place to another ,rehabilitation is
broad concept which also include giving proper employment opportunity to meet the livelihood.

3.1 Whether the government decision violate the fundamental right granted under art.
21 ?

 3.1.1 No violation of Art. 21 of the Constitution

In the present case, there has been no violation of Article 21 of the Constitution. To
establish the violation Article 21, the act should be subjected to the equality test of
Article 14 and test of reasonableness under Article 19. Article 14 ensures fairness and
guarantees against arbitrariness. It provides that every action of the government must
be informed by reasons and guided by public interest Article 19 provides that a
restriction can be characterized to be reasonable if it strikes a balance between the
fundamental right and restriction imposed thereon. In the present case the Union of
India was facing continuously a power crisis which in many ways chopped economic
growth and employment in the country. The Supreme Court, in its earlier order, stated
clearly that it is the duty of the government to provide the people of the country with
necessary conditions for leading a peaceful life as promised by the Constitution under
Art. 21. The respondent has only followed the said order. Hence, it is submitted that
there has been no violation as such on the part of the government. The government is
providing indigenous people who would be displaced with accommodation and basic
standard of living guaranteed under Article 21 of the Constitution through
rehabilitation. Since, Article 21 envisages a right to life and personal liberty of a
person, which not merely guarantees the right to continuance of a person’s existence
but a quality of life, and therefore, State is casted upon a duty to protect the rights of
the citizen in discharge of its constitutional obligation in the larger public interest,

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guaranteed as a fundamental right under Article 21 of the Constitution. The onerous

duty lies upon the State under the concept of 'sustainable development recognized as a
fundamental right under Article 21 to keep in mind the "principle of proportionality"
so as to ensure protection of environment on the one hand and to undertake necessary
development measures on the other hand, since, the economic development cannot be
allowed to take place at the cost of ecology but the necessity to preserve ecology and
environment should not hamper economic and other developments, which includes
generation of revenue and public interest. Hence, despite the fact that life of the
indigenous people is dependent on the forest, the Government not only considering
the necessity to preserve the ecology, while allowing deforestation, but also has to
consider the importance of public projects for the betterment of the conditions of
living of the people and the revenue generated from such projects. Therefore, the fact
that the new buildings or permanent structures are to be constructed by deforestation
in some area of reserved forest cannot be considered to be violation of Article 21 as it
is protecting the right to shelter of the Indigenous people and generates revenue and
electricity which will further provide aid to the government in countering the present
energy crisis. Therefore, the government has struck a balance to protect the
fundamental right of all the citizens including indigenous population, so it cannot be
considered that there is violation of Article 21 especially the right to life of
indigenous people, since; the action of the government is guided by public interest.
 The article 21 is occupies a place of pride in Indian constitution .India being a
singnatory to the International convenient on civil and political right , 1996 as well as
17 sustainable development goal in 2015. So the state has obligation to provide
basics amanitas and electricity is one of them for which government for ocean power
plant ,rather going for other conventional project i.e. thermal power plant because
government is very much concern about environment and ecosystem as well as the
development of country.
 The government is not taking away some one livelihood , the only thing which
government is asking for shifting of mode of livelihood because the ultimate goal of
occupation or trade to earn money to meet basics need of livelihood . It is well said in
case of Indian Hotel and Restaurants Association and Ors . vs. The State of
Maharashtra and Ors17. in which court held that the prohibitation of bar dancer to
dance certain premises does not violate her right to livelihood ,she can go other place
or other work for meet her livelihood because it was necessary for public decency and
morality of people residing in the society.
Hence, Reason for which government is asking to do so because government want to
implement certain policy for national interest i.e. economic development and security
purpose which will benefit public at large.

3.2 Whether it is violating article 19

 No violation to article 19(1)(E)

17
1994 scc online pat 145

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Article 19(1)(e) provides the right to reside and settle in any part of the country; but
reasonable restriction under Article 19(5) can be imposed if it is in public interest. Public
interest means a subject matter in which the rights of the public or section of public is
interested to the means of concern which is advantageous to people as whole. Therefore, the
rights of the indigenous people to reside and settle in the forest area is not an absolute right
and can be restricted under Article 19(5) if it is in the public interest. 'Interest of general
public' is a comprehensive expression intended to achieve the socio- economic justice for
people by the State. The respondent submits that there has been no restraint imposed on the
indigenous people which are against their fundamental rights. 'Interest of general public' is a
comprehensive expression intended to achieve the socio- economic justice for people by the
State. In May 2001, The Committee on Economic, Social and Cultural rights adopted a
statement on poverty, which recognized that poverty constituted a denial of human rights and
defined it as a state of deprivation of the resources, capabilities, choices & security. The
Government's policies are in light of the declaration; it is the duty of the government to meet
its duties and to reduce poverty in the society.

 No violation of article 19(1)(g)

As in regards to the right to practice any profession or ,to carry out any occupation ,trade or
business Art. 19(1)(g) the respondent humbly submits that there is no violation of the said
right. The Indigenous people have guaranteed rights to carry on with any profession of their
choice. Every citizen has a right to carry out any lawful calling business or profession he may
choose subject only to such restrictions as are imposed. It is pointed out that no such
restrictions have been imposed on the indigenous tribal communities. The indigenous people'
right of foraging the forests, which is in many ways their livelihood, has not been violated. It
should also be noted, even if only for argument’s sake, that the right to freedom as enshrined
in Art. 19 of the Constitution, though fundamental, is not an absolute right as such; it is
always subject to reasonable restrictions which may be imposed in the larger interest of the
society. Freedom of profession, trade and business as contemplated by Clause (1)(g) of the
Article 19 of the Constitution is always subject to the limits as may be imposed by the state in
the interest of public welfare. Government policy in the public interest would override the
business interests of an individual person. Social justice is the recognition of greater good to
larger number without deprivation of accrual of legal rights of anybody which are considered
to be their fundamental rights, and the government while exercising its power and by
subscribing to the concept of social and economic justice as enshrined in the constitution
might detract from some technical rule in favour of a party, in order to do greater good to a
large number so as to act in consonance with the principles of equality and public trust. Thus
it is humbly submitted by the respondent, that there is no violation of any provision of Art. 19
by the Union of Sindia .Even the supreme court rightly upheld that government can put
reasonable restriction on trade & business ,in the case of G Sunder Rajan vs union of India 18
court balance the benefit of arising out of government policy with right to life and property
and the protection of environment including marine life, we have to strike a balance, since the
production of nuclear energy is of extreme importance for the economic growth of our
country, alleviate poverty, generate employment etc. While setting up a project of this nature,

18
2013 6 SCC 620

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we have to have an overall view of larger public interest rather than smaller violation of right
to life guaranteed under Article 21 of the Constitution. Also in the case of Kuttysankaran Nair
vs. state of Kerala19, the honorable court observe that right grunted under article 19 is not
absolute ,the government can put reasonable restriction on it , while making policy which is
nation interest and benefit public at large .

3.3Whether the rehabilitation present case is violate the right of tribal people?

3.3.1 The respondent submit that the decision of government does not violate any legal as
well as fundamental right grunted under the constitution of sindia . Because the people
which displaced by the government will be provided with proper shelter to reside, health
facilities, and proper employment opportunity. These all things are rightly observed in the
case of Narmada Bachao Andolan vs. union of India20. The court disposed the writ
petition by issuing various guidelines i.e.
 Displacement of the tribal and other person would not per se result in violation of
their fundamental right.
 On their rehabilitation at new location they would be better off than what they were.
 At the rehabilitation sites they will have more and better amenities than those they
enjoyed in their tribal hamlets
 The gradual rehabilitation in the mainstream of the society would lead to betterment
and progress.

3.4 Reason for which government is going for development in coastal regulation zone
The respondent herein submits that the country is facing huge power crisis and is unable to
protect the right to livelihood of the majority of the population. The industries were shut down
due to power crisis thereby giving rise to unemployment and deprivation of right to life under
Article 21 hence granting environment clearance for the mining project along with various
safeguard measures. The Doctrine of Public Necessity i.e., the welfare of the people is of
paramount importance and is to be applied in the instant case. To achieve the larger public good,
the property, liberty and life of an individual can be placed in jeopardy in the case of existing,
immediate and overwhelming necessity.

The important principle that has been ingrained is that if a project is beneficial for the larger
public, inconvenience to smaller number of people is to be accepted. It has to be respectfully
accepted as a proposition of law that individual interest or, for that matter, smaller public interest
must yield to the larger public interest. Inconvenience of some should be bypassed for a larger
interest or cause of the society. In the instant case, the public hearing was conducted prior to the
grant of environment clearance. The respondent herein submits that the environmental clearance
was granted taking necessary safeguard measures in order to satisfy the larger public necessity.
The development projects to solve the issues like power crisis, employment, security of sindia is
the most feasible and an utmost necessity.

19
MANU/SC/0517/1986
20
MANU/SC/0206/2005

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3.5 The developments will Provides Employment opportunities.

The respondent submits that the state is duty bound to provide employment opportunities and
economic empowerment for its citizens. The development project not only solves the power
crisis, it helps in the development of the economy as well. Built with the view of protecting the
livelihood of people11, the construction and maintenance of the wall also serves to secure
employment opportunities for the indigenous people as well the people living in the villages in
and around the coastal regulation zone.

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4. Whether the CRZ giving excessive discretion to the union of sindia is

ultra vires of the parent law and the constitution?
The respondent humbly submitted before honourable supreme court of sindia that the
regulation brought by the government is not ultra vires to parent law and the constitution.
As it does not violate fundamental Rights enshrined in the Articles 14, 19 and 21 of the
Constitution of Sindia. It is based upon intelligible differentia and have rational nexus or
rational relation to the object sought to be achieved by the statute, it does not violate the
person’s right to life.

4.1 That the policy decision has not violated Article 14.
The respondent humbly submits to the honourable court that the project introduced by the
government is not violation of article 14. Article 14 provides that a law based on a
permissible classification, fulfils the guarantee of the equal protection of the laws and is
valid21 that is based upon intelligible differentia and the differentia must have a relation to
the object sought to be achieved by the policy22. The respondent humbly submits that the
policy decision has been framed on sound reasons and scientific research. The decision
has been taken in consonance with various provisions of various acts in the interests of
social and economic development.

4.1.1 That the ordinance is based on intelligible differentia

The respondent reasonably submits that, a classification is reasonable when it is not
arbitrary23 but rests on differences pertinent to the subject in respect of which
classification is made24. To find out the reason and the justification for the classification,
the court may refer to relevant material e.g. objects and reason appended25 and for
determining the purpose or object of the policy, it is permissible to look into the
circumstances which prevailed at the when the policy was introduced and which
necessitated its emergence26. It is humbly submitted before the honarable court that the
CRZ regulation made is based upon the intelligible differentia and it is made to promote
the sustainable development.

4.2.That there is no violation of Article 19.

Article 19(1) (e) and 19(1) (g) provides the right to reside and settle in any part of the
country and right to practise, or to carry on any occupation, trade or business respectively;

21
India Const., art. 14
22
Id.
23
Gulf Ry. v Ellis, (1897) 163 US 150.
24
Missouri Ry. v. Humes, (1885) 115 US 512.
25
Jagdish Pandey v. Chancellor, Bihar University, AIR 1968 SC 353.
26
Shashikant Laxman Kale v. Union of India, AIR 1990 SC 2114 ; Mohd. Hanif Quershi v. State of Bihar, AIR
1958 sc 731

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but reasonable restriction under Article 19(5) and 19(6) can be imposed if it is in public
interest27.Public interest means a subject matter in which the rights of the public or
section of public is interested28 to the means of concern which is advantageous to people
as whole29 Therefore, the rights of the tribal people to reside and settle in their native
location is not an absolute right and can be restricted under Article 19(5) and 19(6) if it is
in the public interest30. Article 19(1) (g) does not at all mean that the interest of the tribal
people related to their occupation of fishing is not absolute and can be restricted on the
stance of the protection of other people. Interest of general public is a comprehensive
expression intended to achieve the socio- economic justice for people by the State31. The
Government's policies are in light of its duty of the government to meet its duties and to
eliminate the challenges existing in the island. Further, the government has invited the
setting up of resort and made attempts to improve connectivity with the island with a
view to boost the tourism which is one of the main occupations of the indigenous people.
It should also be noted, even if only for argument’s sake, that the right to freedom as
enshrined in Art. 19 of the Constitution, though fundamental, is not an absolute right as
such32 Thus, the steps of the government does not infringe the rights conferred upon the
tribal people under Article 19 of the Constitution of Sindia and consequently the powers
provided to the government under the regulation is not ultra vires.

4.2.1 That there is no violation of Art. 21 of the Constitution of Sindia.

The respondent humbly submits that, it is the duty of the government to provide the
people of the country with necessary conditions for leading a peaceful life as promised
by the Constitution under Art. 2133 The question whether the procedure prescribed by a
law which curtails or takes away the personal liberty guaranteed by Article 21 is
reasonable or not has to be considered not in the abstract or on hypothetical
considerations34.The court held that Right to life includes the right to a reasonable
accommodation to live in, right to shelter, including the necessary infrastructure to live
with human dignity35. The project providing internet and communication facility and
connectivity with the mainland inessential infrastructure. In G. Sundarrajan vs UOI the
court said that “We have to resolve the issue whether the establishment of NPP would

27
State of Kerala v. Peoples Union for Civil Liberties,(1972) 2 Scc 50
28
Kuttisankaran Nair v. State of Kerala, AIR 1965 Ker 161.

29
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481

30
Court on its own motion v. Union of India, 2012 (12) SCALE 307; Kharak Singh v. State of U.P, AIR 1963
SC 1295; Waman Rao v. Union of India, (1981) 2 SCC 362; Bachan Singh v. State of Punjab, AIR1980 SC 898
31
Court on its own motion v. Union of India, 2012 (12) SCALE307
32
Obbayya Pujary v. Member-Secretary, Karnataka State Pollution Control Board, Bangalore, AIR 1999 kant
157 (165).

33 olga v. Bombay Municipal Corporation, AIR 1986 SC 180.

34 Suresh Kumar Koushal and Ors. v. NAZ Foundation and Ors., (2014) 1 scc 1

35 Chameli Singh v State of UP, (1996) 2 scc 549

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have the effect of violating the right to life guaranteed under Article 21 to the persons
who are residing in and around Kudankulam or by establishing the NPP, it will uphold the
right to life in a larger sense. While balancing the benefit of establishing KKNPP Units 1
to 6, with right to life and property and the protection of environment including marine
life, we have to strike a balance, since the production of nuclear energy is of extreme
importance for the economic growth of our country, alleviate poverty, generate
employment etc. While setting up a project of this nature, we have to have an overall
view of larger public interest rather than smaller violation of right to life guaranteed under
Article 21 of the Constitution. “Thus, when all the constituents of the Article 21, which
are several rights conferred upon the people, are provided by the Union of Sindia under
this project, then it can be concluded that the excessive discretion given to the Union of
Sindia by CRZ and its usage made by the government thereupon is not ultra vires.

The Supreme Court in Modern dental college and research centre and other vs. State of Madhya
Pradesh36. The test itself consists of a conjunctive four-part

Firstly, to enquire whether the purpose of imposing that limitation is legitimate.

Secondly, it must be established that the measures are rationally connected to fulfilling
purpose.

Thirdly, no alternative measures must be available that fulfil the same purpose with a
lesser degree of limitation,

Fourth and finally, the relative importance of achieving the end sought to be fulfilled by
the measure ought to be adjudged vis-à-vis the social importance of preventing
limitations on Article 19(1)(g).

Going through the first parameter, the limitation imposed by the government is
legitimate as the article which give fundamental right, the very article also put
reasonable restriction. The restriction imposed also stand on second parameter as
government is making proper provision for livelihood of people who are being
displaced. There is no alternative, as other are more harmful for the environment and
well stand on fourth parameter as well.

Hence, the regulation brought by government of sindia is not ultra vires to the parent law
of the constitution because it stands on all parameter set by the supreme court in the given
case.

36
(2005) 6 scc 535

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

1. Dismiss the writ petition.

2. In the alternative declare and adjudge:

a. That the Respondents have not violated the fundamental rights of the indigenous
people.

b. That the Respondents are not causing environmental degradation

AND/OR

Pass any other order that it deems fit in the interest of Justice,

Equity and Good Conscience. And for this, the Respondents as in

duty bound, shall humbly pray.

COUNSELS FOR THE

RESPONDENTS

MEMORANDUM FOR THE RESPONDENT