Download OD PDF

Page 1

BHU’S 4TH MAHAMANA MALVIYA MOOT COURT COMPETITION 2016







BEFORE THE HON’BLE SUPREME COURT OF REPUBLIC OF RHODO







IN THE MATTER OF:

SLP NO. 8015/2015

REPUBLIC OF RHODO...……….…….…………………PETITIONER

DASHANAN MOTORS LIMITED………………………DEFENDANT



SLP NO. 031/2016

MAYA MEHTA …………………………………………...PETITIONER

STATE OF NORTHERN PROVINCE …………………..DEFENDANT







Memorial for Respondents

TEAM CODE-OD

Page 2

-BHU’S 4TH MAHAMANA MALVIYA MOOT COURT COMPETITION 2016-

I | P a g e

[Memorial for Respondent]

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................................................. I

LIST OF ABBREVIATIONS .................................................................................................... III

INDEX OF AUTHORITIES ....................................................................................................... V

STATEMENT OF JURISDICTION ...................................................................................... VIII

STATEMENT OF FACTS ......................................................................................................... IX

ISSUES RAISED ...................................................................................................................... XIII

SUMMARY OF ARGUMENTS ............................................................................................. XIV

ARGUMENTS ADVANCED ....................................................................................................... 1

I. THAT THERE IS NO DIRECT AND PROXIMATE NEXUS BETWEEN THE

POLLUTION CAUSED BY DML AND THE CONSEQUENTIAL EFFECTS IN THE

MOHANA REGION ................................................................................................................. 1

A. DRASTIC CHANGES WERE OBSERVED .................................................................. 1

B. NO CONCLUSIVE EVIDENCE. .................................................................................... 2

II. THAT DML CANNOT BE HELD TORTIOUSLY LIABLE ....................................... 5

A. THAT THERE EXISTED A DUTY OF CARE .............................................................. 5

B. THAT THERE WAS A BREACH OF THE DUTY OF CARE...................................... 6

C. THAT DAMAGES RESULTING FROM THE BREACH OF DUTY ........................... 7

III. THAT THERE IS VIOLATION OF ARTICLE 14 OF THE CONSTITUTION ... 9

A. RATIONALE BEHIND THE DIRECTIVE .................................................................... 9

B. THE REASON BEHIND THE WRONG DECISION .................................................. 10

Page 17

-BHU’S 4TH MAHAMANA MALVIYA MOOT COURT COMPETITION 2016-



1 | P a g e

[Memorial for Respondent]

ARGUMENTS ADVANCED

I. THAT THERE IS NO DIRECT AND PROXIMATE NEXUS BETWEEN THE

POLLUTION CAUSED BY DML AND THE CONSEQUENTIAL EFFECTS IN THE

MOHANA REGION

1. It is humbly submitted before the Hon’ble Supreme Court that there is no direct and proximate

nexus between the pollution caused by DML and the changes that were observed in the flora and

fauna as well as the natives of the region around the river Asli and the Mohana region. The

timeline of the events is such that the changes would not have been caused but for some

intervening factor.

A. DRASTIC CHANGES WERE OBSERVED

2. It has been stated in the facts that DML had been set up by the Government after the

independence of Rhodo in the mid-twentieth century and had been profitably operational for “the

first few decades of its existence”
1
. However, it can be reasonably inferred from the statement of

facts that the company was established before the year 1991, the year in which the government

relaxed its import regime and the sales of DML fell due to international competition. Another

concrete year mentioned is 2005, in which the disinvestment process of DML started, at the end

of which the Government of Republic of Rhodo (hereinafter referred to as the Government)

owned 49% stake. Thus it can be concluded that DML had been in existence for a few decades

even before 1991. The facts then state that the factory of DML had been discharging its effluents

in the river Asli since its inception, that is, a few decades before 1991 but it was in 2015 that

certain “drastic changes”
2
were observed, comprising withering of mangroves, death of

endangered riverine dolphins and the natives of the Mohana region suffering from black sores on

their body and shortness of breath.
3


3. It is not reasonable to draw a nexus between the alleged pollution that had been happening for so

many decades and the drastic effects seen in the region because every change, happening due to

a consistent cause, has a gestation period and shows symptoms before actually developing into


1
Paragraph 4, Moot Proposition.

2
Paraghraph 11, Moot Proposition.

3
Paragraph 11, Moot Proposition.

Page 18

-BHU’S 4TH MAHAMANA MALVIYA MOOT COURT COMPETITION 2016-



2 | P a g e

[Memorial for Respondent]

anything so deleterious. So, there should have been some gradual changes noticed over the years

due to the alleged pollution, but since the changes mentioned are drastic, it is humbly submitted

that these changes were due to some intervening change(s) that had taken place in 2015 and not

because of the effluent release of the factory that had been taking place for so many decades.

B. NO CONCLUSIVE EVIDENCE.

4. It has been stated that the only findings that the research conducted by the MBCF has revealed

concretely is that the water of the river Asli is heavily polluted, that some of the chemicals it

contained are hazardous to the flora and fauna of the region, and that some of its major pollutants

are sulphur and heavy metals. The mention of the non-conformity of the reports to establish a

link between the acts is as follows-

i. From these findings, it was “averred” that the reason for the existence of sulphur and

heavy metals beyond the tolerable limits was the trade effluents discharged by the plant.

ii. It was “opined” that DML is responsible for the environmental deterioration.

iii. It is also stated that the MBCF thought that the high concentration of sulphur and heavy

metals “could have been” the cause of the death of the dolphins.

iv. In the PIL filed by Ms. Mehta in the High Court of Judicature of Northern Province at

Shivpuri, she too “alleged”, without any concrete evidence to confirm, that the drastic

shift in the ecological balance was due to the trade effluents being discharged by the

DML plant.

5. It is humbly submitted that although extensive research has been conducted on the conservation

of this endangered species, sulphur or heavy metals have not been mentioned as the cause of

death of riverine dolphins by any eminent national or international organisation. The only two

chemicals which have been widely associated with the death of this species are organochlorine

and butylin (WWF and IUCN)
4
.


4
https://www.worldwildlife.org/threats/pollution;

http://wwf.panda.org/what_we_do/endangered_species/cetaceans/about/river_dolphins/ganges_river_dolphin/

Page 33

-BHU’S 4TH MAHAMANA MALVIYA MOOT COURT COMPETITION 2016-



17 | P a g e

[Memorial for Respondent]

“The State shall, in particular, direct its policy towards securing –

(a) That the citizens, man and women equally, have the right to an adequate means of livelihood.”

51. This DPSP has been read as a fundamental right in Olga Tellis v. Bombay Corporation
44

.

52. Article 39(a) of the Constitution, which is a DPSP, provides that the State shall, in particular,

direct its policy towards securing that the citizens, men and women equally, have the right to an

adequate means of livelihood. Article 41, which is another Directive Principle, provides, inter

alia, that the State shall, within the limits of its economic capacity and development, make

effective provision for securing the right to work in cases of unemployment and of undeserved

want. Article 37 provides that the Directive Principles, though not enforceable by any court, are

nevertheless fundamental in the governance of the country. The Principles contained in

Articles 39(a) and 41 must be regarded as equally fundamental in the understanding and

interpretation of the meaning and content of fundamental rights. If there is an obligation upon the

State to secure to the citizens an adequate means of livelihood and the right to work, it would be

sheer pedantry to exclude the right to livelihood from the content of the right to life. The State

may not, by affirmative action, be compellable to provide adequate means of livelihood or work

to the citizens. But, any person, who is deprived of his right to livelihood except according to just

and fair procedure established by law, can challenge the deprivation as offending the right to life

conferred by Article 21.


44

Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

Page 34

-BHU’S 4TH MAHAMANA MALVIYA MOOT COURT COMPETITION 2016-



XVI | P a g e

[Memorial for Respondent]

PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited it is most

humbly and respectfully requested that this Hon’ble Court to adjudge and declare that:



1. The SLPs be dismissed.

2. The directive issued by the government should be struck down.

3. Reverse the order of High Court and not give any extra compensation.

In the alternative, pass any other relief which the court may deem fit and proper.





All of which is humbly submitted by

Counsels on behalf of the Respondents