TEAM CODE- N-024

IN THE HONBLE
SUPREME COURT OF INDIA,
AT NEW DELHI.

WRIT PETITION NO.

Of 2013

MR. BIDYUT CHARAN MOHANTY

PETITIONER
VS.
UNION OF INDIA & STATE OF ODISHA
RESPONDENT

29th
BAR COUNCIL OF INDIA TRUST INTER UNIVERSITY,
MOOT COURT COMPETITION
2013-2014

SUBMITTED IN THE REGISTRY OF THE COURT

ON BEHALF OF THE RESPONDENTS
-UNION OF INDIA & STATE OF ODISHA

MEMORIAL ON BEHALF OF RESPONDENTS

29th BCI Moot Court Competition

TABLE OF CONTENTS
LIST OF ABBREVIATIONS...... III
INDEX OF AUTHORITY.......................................................................................................IV
STATEMENT OF JURISDICTION........................................................................................VI
STATEMENT OF FACTS.....................................................................................................VII
STATEMENT OF ISSUES.....................................................................................................IX
SUMMARY OF ARGUMENTS..............................................................................................X
DETAILED PLEADING...1

ISSUE NO. 1: Whether the Petition is maintainable?.................................................................1

ISSUE NO.2 - Whether a Writ Can Be Issue to Government of India on Matter Relating to
Defence?.....................................................................................................................................4
PRAYER....................................................................................................................................6

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LIST OF ABBREVIATIONS

EIA

Environment Impact Assessment.

HC

High Court.

AIR

All India Reporter.

SC

Supreme Court.

SCC

Supreme Court Cases.

IIT

Indian Institute of Technology.

Subs.

Substituted.

Sec.

Section.

u/s

under section.

L.A.

Land Acquisition

NPP

Nuclear Power Plant

DRDO

Defence Research & Development Organisation

SNF

Spent Nuclear Fuel.

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INDEX OF AUTHORITY
S.NO.

PARTICULARS

STATUTORY COMPILATIONS
1. THE CONSTITUTION OF INDIA.
2. EIA NOTIFICATION, 2006.
3. THE ATOMIC ENERGY ACT, 1962.
4. OFFICIAL SECRET ACT, 1923.
5. THE LAND ACQUISITION ACT, 1894.

6.

ENVIRONMENT (PROTECTION) RULES, 1986.

7.

DEFENCE OF INDIA ACT, 1962.

BOOKS REFERRED
1. Dr. J.N. Pandey, The Constitutional Law of India, Central Law Agency, 48th
Edition.
2. M.P. Jain, Indian Constitutional Law, 256, (LexisNexis Butterworths
Wadhwa, Nagpur, 2010).
3. P.K. Sarkar, Law of Acquisition of Land in India, Eastern Law House, 2nd
Edition.
4. Justice Justice T S Doabia , Environmental and Pollution Laws in India,
(LexisNexis Butterworths Wadhwa) 2nd Ed.

5.

Justice P.S.Narayana, Concise Commentary on the Land Acquisition Act, 1894,

Jain Book Agency, 2011.

DICTIONARIES & LAW LEXICONS:

i.

Oxford Dictionary, 6th Ed., Oxford University Press, London, 2003.

ii.

GARNER, BRYAN A.: A Dictionary Of Modern Legal Usage, Oxford

University Press 2nd ed. Oxford (1995)

iii.

Greenberg, Daniel & Alexandra, Millbrook: Strouds Judicial Dictionary of

Words & Phrases, VOL. 2, 6th ed., London: Sweet & Maxwell (2000).

WEBSITES REFERRED:

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i.

www.findlaw.com

ii.

www.indiankanoon.com

iii.

www.indlawinfo.org

iv.

www.jstor.org.

v.

www.judis.nic.in

vi.

www.lawsofindia.org

vii.

www.manupatra.com

viii.

www.scconline.com

ix.

www.supremecourtcaselaw.com

CASES REFERRED
1. Pritam Pal v. High Court of Madhya Pradesh, Jabalpur through Registrar,
1993 Supp (1) SCC 529.
2. G.Sundarrajan v. Union of India & ors., Civil Appeal No. 4440 of 2013.
3. Asif Hameed v. State of Jammu and Kashmir AIR 1989 S.C. 1899.
4. Tehri Bandh v. State of U.P (1992) Supp. (1) S.C.C. 44.
5. Vacher & Sons v. London Society of Compositors (1913) AC 107(118)HL.
6. CCSU v. Min (1984) 3 All ER 935 (954) HL.
7. M.P. Oil Extraction and Another v. State of M.P. and Ors (1997) 7 SCC 592.
8. M/s Ugar Sugar Works Ltd. v. Delhi Administration & Ors., (2001) 3 SCC 635.
9. Dhampur Sugar (Kashipur) ltd. v. State of Uttranchal and Ors., (2001) 3 SCC
635.

10. Delhi Bar Association v. Union of India and Ors., (2008) 13 SCC 628.

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STATEMENT OF JURISDICTION
The petitioners have approached the Honble Supreme Court under Article 32 of the
Constitution of India. The respondents respectfully submit to the jurisdiction invoked by the
petitioners. Art 32 reads as hereunder:
Remedies for enforcement of rights conferred by this Part:
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

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STATEMENT OF FACTS
THE DECISION OF THE GOVERNMENT OF INDIA
To install a Nuclear Power Plant in the State of Odisha.
PURPOSE
1. Uninterrupted supply of power to DRDO Establishment for testing base (launching
pad) Intercontinental Ballestic Misile (ICBM) capable of carrying nuclear weapons.
2. Supply Power to Paradeep Shipyards, which is dedicated to manufacturing submarines.
Having acquired Russian nuclear submarine, the Government of India decided to
develop this shipyard as the maintenance yard for the nuclear submarine, as well.
3. Balance of the power may be used for the Paradeep Port establishment and township.
BALASORE
The area of Balasore is rural with high density of population. The district is agriculturally very
important for the economy of Odisha. Balasore is logistically important for the defence of the
country to maintain balance of power with China using the Yangoon open sea zone as the
advanced location for military logistics of China.
NOTIFICATION BY GOVERNMENT
The Government of Odisha notified the land in the district of Balasore near the sea covering
30,000 acres presently owned and occupied by farmers producing three crops in a year. Soon
the estate acquisition notice was given.
AGITATION BY FARMERS AND NATIONAL MAINSTREAM INTELLECTUAL
There has been continuous agitation by the people of Odisha in general and Balasore farmers
in particular. National mainstream intellectuals also joined the agitation especially indicating
that the district is susceptible for high tide and cyclonic weather. Naturally, such a plan for
establishing nuclear reactor creates panic among the farming community of the State. It is also
argued that Bay of Bengal is a very sensitive and geophysically disturbed area for earthquake
in the sea deep down the seabed and capable of causing tsunami.
RESOLUTION TO SHIFT THE PLANT TOWARDS SOUTH
At the height of agitation, the opposition Congress Party wanted to move a resolution in the
Legislative Assembly to shift the proposal towards South Odisha. But the resolution was not

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permitted. As a result the sessions in the Assembly has been shelved by the opposition
members.
PIL FILED BY A LOCAL LAWYER- ENVIRONMENTALIST
At this stage, a local lawyer-environmentalist Mr. Bidyut Charan Mohanty filed a Public
Interest Litigation in the Supreme Court of India seeking appropriate writ or writs directing the
Government of India and the State of Odisha, respectively, not to proceed with this project
because of very high stake on public interest.
The HC has issued notice to both the GOI and the State of Odisha.
Hence the present Writ Petition.

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STATEMENT OF ISSUES

ISSUE 1. WHETHER THE PETITION IS MAINTAINABLE?

ISSUE 2. WHETHER A WRIT CAN BE ISSUE TO GOVERNMENT OF INDIA ON MATTER

RELATING TO DEFENCE?

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SUMMARY OF ARGUMENTS
ISSUE 1. WHETHER THE PETITION IS MAINTAINABLE?
The present petition is not maintainable because the welfare of the people is the supreme law
as connoted by the maxim ""Salus populi suprema lex and the safety of the state is the
supreme law, and in case of any conflict, an individual must yield to the collective interest as
connoted by the maxim "Republicae Supreme lex". It is vital that these two maxims should
coexist harmoniously.
The Land Acquisition Act, 1894, is that Procedure established by law, which grants the
"appropriate government" authority to acquire land for the public purpose. All the procedures
under the L.A. Act, were duly followed when the notification for the acquisition of land was
given of the Balasore region. Therefore, the acquisition of land is valid in Toto.
The traditional concept of locus standi has been relaxed in the Public Interest Litigation, to
enforce the Fundamental Rights of those individuals who are incapable in doing so by the
reason of poverty, knowledge or lack of awareness. However, the same is being misused by
individuals with vested interest to file malafide petitions, hence wasting the time of the Hon'ble
Court. These plethora of acts provides an aegis to the citizens of the NPP surrounding areas
against any harmful and detrimental effects from the emissions of the plant, which of course
are treated indefinitely. The following are few key components of the project:1. Geographical
2. Environmental Factors
3. Health
4. Waste Management
5. Threat Perception

ISSUE 2. WHETHER A WRIT CAN BE ISSUE TO GOVERNMENT OF INDIA ON

MATTERS RELATING TO DEFENCE?
When land is acquired under the Land Acquisition Act, 1894 for any purpose specified therein,
it is inherent by the nature of the statute itself that some or the other right in interest of the
larger public welfare will have to be sacrificed. Maybe this is also the reason that the Land
Acquisition Act is also referred to as Draconian Law of the Country by the critics.

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The role of Judiciary is very limited, it shall merely interpret the provisions of an enactment
and where breach of fundamental rights exists, in terms of dangers of the project, cognizance
maybe taken.
India's National Policy has been clearly and unequivocally expressed by the legislature in the
Atomic Energy Act. National and International policy of the country is to develop control and
use of atomic energy for the welfare of the people and for other peaceful purposes. NPP being
set up at Balasore as part of the National Policy which is discernible from the Preamble of the
Act and Provisions contained therein
It is most humbly submitted, when the setting up of the Nuclear Power Plant is justified from
all angles, which in the instant case is being set up in the National Interest for supplying
electricity to DRDO establishments to safeguard the sovereignty of the Country, such projects
should not be interfered with considering the gravity of infiltration and security concerns of the
Country, with porus borders. India has to race with other nations developing Nuclear Power,
and co-operation of the citizens is required to finish such projects expeditiously.

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DETAILED PLEADINGS
ISSUE No. 1: WHETHER THE PETITION IS MAINTAINABLE?
It is most humbly submitted that, the present petition is not maintainable because the welfare
of the people is the supreme law as connoted by the maxim "Salus populi suprema lex"1, and
furthermore the safety of the state is the supreme law, and in case of any conflict, an individual
must yield to the collective interest as connoted by the maxim "Republicae Supreme lex"2. It is
vital that these two maxims should coexist harmoniously. The present case is the one where
there is a need for nuclear energy for the welfare of the public and for other welfare of the
people of India and for peaceful purposes3. It is further pertinent to note that recently, this Court
dismissed the Public Interest Litigation filed against the setting up of a Nuclear Power Plant at
Kundankulam, Tamil Nadu. It is a natural phenomenon in our country that people with vested
interest manipulate the masses just to delay the projects and large number of these agitators are
amongst those whose properties are being acquired. This Court in G.Sundarrajan v. Union of
India4, also known as Kundankulam NPP case observed:
"Court has to respect national nuclear policy of the country reflected in the Atomic
Energy Act and the same has to be given effect to for the welfare of the people and
the country, it is with these objectives in mind KKNPP has been set up."
Furthermore, The Land Acquisition Act, 1894,(hereinafter referred to as L.A. Act) is that
Procedure established by law which grants the "appropriate government" authority to acquire
land for the public purpose. All the procedures under the L.A. Act, were duly followed when
the notification for the acquisition of land was given of the Balasore region. Therefore, the
acquisition of land is valid in Toto.
It is further pertinent to note, that the traditional concept of locus standi has been relaxed in
the Public Interest Litigation, to enforce the Fundamental Rights of those individuals who are
incapable in doing so by the reason of poverty, knowledge or lack of awareness. But the same
is being misused by individuals with vested interest to file malafide petitions, hence wasting
the time of the Hon'ble Court. In the instant case it is pertinent to note that there is no violation
of fundamental rights in terms of Right to clean environment enshrined under Article 21 of the

Pritam Pal v. High Court of Madhya Pradesh, Jabalpur through Registrar, 1993 Supp (1) SCC 529.
Ibid.
3
G.Sundarrajan v. Union of India & ors., Civil Appeal No. 4440 of 2013.
4
Ibid.
2

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Constitution in and around Balasore, Odisha. When a Nuclear Power Plant is set up, the
mandates of all the precautionary Acts like Atomic Energy Act, 1962, Environment
(Protection) Act, 1986, Water (Prevention and Control of Pollution Act), 1977, Disaster
Management Act, 2005, Atomic Energy (Radiation Protection) Rules, 2004, Atomic Energy
(Safe Disposal of Radio Active Waste) Rules 1987 and Air (Prevention and Control
Regulation) Act, 1981 etc are followed. These plethora of acts provides an aegis to the citizens
of the NPP surrounding areas against any harmful and detrimental effects from the emissions
of the plant, which of course are treated indefinitely. The following are few key components
of the project:1) Geographical location : It is pertinent to observe that the territory of Balasore is situated in
seismic Zone III5, which is comparatively lower seismic zone as compared to Nuclear Power
Plants of other countries, like Japan etc. where NPP's are being established at Zones VII, VIII
and IX, while Taiwan's are in VIII and IX. Thus the 20-odd nuclear power plants in India, with
a generating capacity of 4, 780 megawatt (Mw), are located at much lower and safe seismic
zones. Furthermore, our nuclear power plants are situated 300-2,000 km away from the tectonic
Himalayan boundary, thus making it invulnerable to tsunamis and earthquakes6.
It is further noted that, the location i.e. Balasore, Odisha is one of the most suitable location in
terms of land disputes and territorial location. Balasore site is free from all litigations because
the areas fall under the CRZ belt and there is no biosphere, historical monuments, architectural
religious establishments and tribal settlements around them7. Therefore merely the acquisition
of 30,000 acres i.e. 121 sq.kms out of 3806 sq.kms area will not have any implications on the
agricultural economy of the state. In this regard it may be noted that as per various researches
conducted by National Environmental Engineering Research Institute (NEERI), operation of
NPP's do not have any adverse impact on agriculture, livestock and food security8. Lastly, water
serves as a coolant in the Nuclear power plants and is required in large quantities9, and Balasore
serves as an ideal location for this purpose as it is situated at the Bay of Bengal.

Editorial, "Quake Shadow hangs on Orissa" The Telegraph, January 03.2005.

Sanjay Jog, "Indian N-Plants safe, located in less seismic zones", The Business Standard, March 13,2011.
7
Hemant Kumar Rout, "Balasore woos miffed", The Times of India, October 10, 2009.
8
Expert Group, Government of India, Report: Safety of Kudankulam Nuclear Power Plant and Impact of its
Operations on the Surroundings,(Department of Atomic Energy, Dec 2011). available at, barc.gov.in (last visited
on September, 05, 2013).
9
"Water & Sustainability (Volume 3): U.S. Water Consumption for Power Production - The Next Half Century,"
Electric Power Research Institute, Technical Report 1006786, March 200
6

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2) Environmental Factors: The problems like Poverty, malnutrition and under-employment

can only be corrected through concerted effort towards economic and industrial development,
thus it is essential to estimate the future electrical energy demand in light of the expected
population growth. Currently Nuclear Power merely constitutes 2.6% in electricity generation
while Coal/Oil/Gas constitute massive 65.1% and Hydro and other Renewable constitutes
32.3% in electricity generation10. Indian Coal reserves will deplete in 80 years and rest of the
hydro potential remains untapped due to physical restrains in Himalayan Ranges. Therefore,
exploitation of Nuclear Energy is the key to energy independence for India in coming centuries,
which will also help in the fight against global warming at a much cheaper price11.
3) Health Factors: Nuclear Power Plants are well protected in terms of its emissions, which
will be subsequently discussed. Nuclear Plants causes cancer, leukaemia in persons who lived
near nuclear facilities is a myth. Studies and researches conducted in France, which is also
home to most of the NPPs confirm that radiation from NPP's does not increase the mortality12
4) Waste Management: Management of radioactive waste in Indian context includes all types
of radioactive wastes generated in the entire nuclear fuel cycle right from the mining of
uranium, fuel fabrication and subsequent reprocessing of fuel spent. In consideration to the
primary object of protecting human health, environment and future generation, the overall
philosophy for the safe management of radioactive waste relies on the concept of i) Delay and
Decay ii) Dilute and Disperse and iii) Concentrate and Contain13. These processes ensure the
safe disposal of all kinds of solid, liquid and gaseous waste as per the international standards.
India has further got the Capability for re-processing SNF (Spent Nuclear Fuel), experts say.
Additional re-processing facilities are being set up to accelerate the program14.
4) Threat Perception : Apprehension that, setting up of these units will repeat accidents like
Three Miles Island, Chernobyl, Union Carbide, Fukushima etc., are legitimate, but cannot
override justification of the project. Fukushima Power Plant was built on seismic zone VII,
while, Chernobyl disaster occurred due to deficiency in design. Lessons from these disasters
have been learnt by humans, much stringent safeguards and measures have been adopted to

10

Supra 8.
APJ Abdul Kalam & Srijan Pal Singh, Nuclear power is our gateway to a prosperous future, The Hindu,
November 6, 2011.
12
C.Hill & A.Lapelanche, Overall Mortality and Cancer mortality around french nuclear sites, Nature, 347: 755757 (1990).
13
Ibid 10.
14
Supra 3.
11

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ensure that such incidents and not reported. Once the justification test is satisfied, the
apprehension test is bound to fail. Thus, on the other hand these plants are only protecting rights
enshrined u/A 21 of the Constitution by safeguarding larger public interest.
ISSUE NO.2 - WHETHER A WRIT CAN BE ISSUE TO GOVERNMENT OF INDIA ON MATTER
RELATING TO DEFENCE?
It is most humbly submitted that, when land is acquired under the Land Acquisition Act, 1894
for any purpose specified therein, it is inherent by the nature of the statute itself that some or
the other right in interest of the larger public welfare will have to be sacrificed. Maybe this is
also the reason that the Land Acquisition Act is also referred to as Draconian Law of the
Country by the critics.
It is unambiguous, though with checks and balances our Constitution has inherited the principle
of separation of powers. In Asif Hameed v. State of Jammu and Kashmir15, the Hon'ble
Supreme Court observed:
Although the doctrine of separation of powers has not been recognised under the Constitution
in its absolute rigidity but the Constitution makers have meticulously defined the functions of
various organs of the State. Legislature, executive and judiciary have to function within their
own spheres demarcated under the Constitution. No organ can usurp the functions assigned to
another. The Constitution trusts to the judgment of these organs to function and exercise their
discretion by strictly following the procedure prescribed therein. The functioning of democracy
depends upon the strength and independence of each of its organs.
Therefore, the role of Judiciary is very limited, it shall merely interpret the provisions of an
enactment and where breach of fundamental rights exists, in terms of dangers of the project,
cognizance maybe taken. In Tehri Bandh v. State of U.P16, where a PIL was brought on the
allegation that Government proposes to construct a dam regardless of its safety and ecological
aspects, it was held that the Court is only concerned to examine whether the Government has
applied its mind to the dangers complained of, but cannot enter into the merits of that complaint
as to which the court does not possess the expertise to decide.
That, India's National Policy has been clearly and unequivocally expressed by the legislature
in the Atomic Energy Act. National and International policy of the country is to develop control
and use of atomic energy for the welfare of the people and for other peaceful purposes. NPP
being set up at Balasore as part of the National Policy which is discernible from the Preamble
15
16

AIR 1989 S.C. 1899.

(1992) Supp. (1) S.C.C. 44 (para 14).
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of the Act and Provisions contained therein. It is not for the Courts to determine whether a
particular policy or a particular decision taken in fulfilment of a policy, is fair. Reason is
obvious, it is not the province of a court to scan the wisdom or reasonableness of policy behind
the Statute. Lord Macnaughten in Vacher & Sons v. London Society of Compositors17 has
stated: "Some people think the policy of the Act unwise and even dangerous to the community.
But a Judicial Tribunal has nothing to do with the policy of any Act which it may be called
upon to interpret. That may be a matter of a private judgement. The duty of the Court, and its
only duty is to expand the language of the Act in accordance with the settled rules of
construction. In CCSU v. Min18, it was held that it is not for the Courts to determine whether a
particular policy or particular decision taken in fulfilment of that policy are fair. They are
concerned only with the manner in which those decisions have been taken, if that manner is
unfair, decision will be tainted with what Lord Diplock labels as procedural impropriety.
This Court in M.P. Oil Extraction and Another v. State of M.P. and Ors19., held that unless the
policy framed is absolutely capricious, unreasonable and arbitrary and based on mere ipse dixit
of the executive authority or is invalid in constitutional or statutory, courts interference is not
called for20.
Therefore, it is most humbly submitted, when the setting up of the Nuclear Power Plant is
justified from all angles, which in the instant case is being set up in the National Interest for
supplying electricity to DRDO establishments to safeguard the sovereignty of the Country,
such projects should not be interfered with considering the gravity of infiltration and security
concerns of the Country, with porus borders. India has to race with other nations developing
Nuclear Power, and co-operation of the citizens is required to finish such projects
expeditiously.
It is further prayed by the Respondents that, the Hon'ble Court may also be graciously be
pleased to frame guidelines, which should prevent such unscrupulous and time consuming writs
being filed under the hood of public interest litigation against projects which are solely in the
national interest, and should be finished fast. This does not mean shutting of the doors, but
merely defining the "locus standi" in such cases. Heavy costs as the Hon'ble Court may deem
fit should be imposed, if Petitions are found to be replicas of other situations.
17

(1913) AC 107(118)HL.
(1984) 3 All ER 935 (954) HL.
19
(1997) 7 SCC 592.
20
M/s Ugar Sugar Works Ltd. v. Delhi Administration & Ors., (2001) 3 SCC 635; Dhampur Sugar (Kashipur)
ltd. v. State of Uttranchal and Ors., (2001) 3 SCC 635; Delhi Bar Association v. Union of India and Ors., (2008)
13 SCC 628.
18

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PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is most
humbly prayed that this Honorable Court may be pleased to:

TO HOLD

That the writ petition under Article 32 of the Indian Constitution is not maintainable.

That the writ cannot be issued to Government of India on matters relating to defence.

MISCELLANEOUS

Any other relief that this Honble Court may be pleased to grant in the interest of
equity, justice and good conscience.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSELS FOR RESPONDENTS

Sd.

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