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 PETITIONER
-MR. BIDYUT CHARAN MOHANTY

MEMORIAL ON BEHALF OF PETITIONER

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. Sundrarrajan v. Union of India, Civil Appeal No. 4442 of 2013.
3. M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388;
4. State of M.P. v. Kedia Leather & Liquor Ltd., (2003) 7 SCC 389;
5. Subhash Kumar v. Bihar, AIR 1999 SC 812.
6. Narmada Bachao Andolan v Union of India, AIR 2000 SC 3751.
7. Bombay Dyeing and Mfg. Co. Ltd. Vs. Bombay Environmental Action Group
and Ors, AIR .[2006] 3 SCC 434.
8. Maharaj Singh v. State of Uttar Pradesh, AIR 1976 SC 2602 : (1977) 1 SCC
155.
9. S.P. Gupta v. Union of India, AIR 1982 SC 149 : 1981 Supp SCC 87;
10. Tehri Bandh v. State of U.P., (1992) Supp. (1) S.C.C. 44
11. Maneka Gandhi v. Union of India, AIR 1978 SC 597.

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STATEMENT OF JURISDICTION
The Honble Supreme Court has the jurisdiction to try and entertain this petition under Article
32 of the Constitution of India. Article 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 in form of PIL should be maintainable because the welfare of the people
is the supreme law as connoted by the maxim "Salus populi suprema lex. Under the facts and
circumstances existing in Balasore, Odisha setting up a Nuclear Plant is much more detrimental
than beneficial.
The present petition is maintainable, as the issue in question falls squarely within the ambit of
"matters of public importance", as per the Supreme Court Guidelines. Furthermore the
petitioner holds no vested interest in the present petition and is merely a "public-spirited
individual", thus the Hon'ble Court may graciously be pleased to relax the locus standi and
decide the issue after hearing the grounds of this PIL, which are :1. Right to clean air
2. Geographical Location of Balasore
3. Ecology and Environmental Impact Assessment
4. Disposal of Nuclear Waste

Therefore, unless long-term disposal policies are made which are more theoretical than
practical, India is not in a position to construct another Nuclear Power Plant (NPP). Therefore,
the gravity of situation does not permit the setting up of a Nuclear Power Plant (NPP) in
Balasore region.

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

MATTERS RELATING TO DEFENCE?
The present writ petition is being filed as a public interest litigation. The Supreme Court has
observed that 'where a wrong against community interest is done, 'no locus standi' will not
always be a plea to non-suit an interested public body chasing the wrong doer in the Court'.
The writ has been filed as a public interest litigation to safeguard the masses against the
infringement of their most basic fundamental right i.e. Right to life enshrined under Article 21
of the Constitution. If fundamental rights of a group of community are being collectively
infringed, or for that matter even a particular individual right is infringed the remedy can be
sought under Article 32 of the Constitution irrespective of the nature of infringer.

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Furthermore, there is no direct proximity of the Nuclear Power Plant with Defence of the
Country, as it is merely supplying electricity to the Defence Research Development
Organization's establishment along with the township. These power plants are created under
the agreement called co-operation agreement for peaceful uses of nuclear energy. India's
National Policy has been clearly and unequivocally expressed by the legislature in the Atomic
Energy Act. Therefore, merely if a NPP is supplying electricity to a DRDO establishment, it
cannot be said to be exclusively a defence undertaking for the purpose of filing a writ.
The Land Acquisition Act of 1894 is rightly referred to as Draconian Law of India; the
notification is given by the Government of Odisha to acquire land under the Land Acquisition
Act and not under S.29 of The Defence of India Act, 1962, which would make the matter
exclusively pertaining to Defence. Therefore the site being acquired for the a Nuclear Power
Plant is not directly a Defence establishment and is thus not a Prohibited Place under the
Officials Secret Act, 1923, whose information cannot be revealed to public.
In a rule of law, merely because an issue is of national importance or public importance, it
cannot be imposed upon citizens, as this project will do more harm than good to the citizens of
Balasore and surrounding areas.

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DETAILED PLEADINGS
ISSUE No. 1: WHETHER THE PETITION IS MAINTAINABLE?
It is most humbly submitted that, that the petition should be maintainable because the welfare
of the people is the supreme law as connoted by the maxim "Salus populi suprema lex"1. In a
democratic country like India, it is unfortunate that a project of significant importance like
Balasore is being forced upon the local community without considering the "Threat Perception"
of such a nuclear power plant. Though PIL filed against The Kundankulam Nuclear Plant was
upheld with safety guidelines in G. Sundrarrajan v. Union of India2, and the advantages of
setting up an Nuclear Power Plant are much more in a country like India, yet under the facts
and circumstances existing in Balasore, Odisha setting up a Nuclear Plant is much more
detrimental than beneficial. This proposition will be discussed subsequently.
That, the present petition is maintainable, as the issue in question falls squarely within the ambit
of "matters of public importance", as per the Supreme Court Guidelines3. Furthermore, the
present petition is being filed on behalf of poor and indigent farmers who are unable to enforce
their Fundamental and Legal rights due to poverty and lack of awareness. Furthermore the
petitioner holds no vested interest in the present petition and is merely a "public-spirited
individual", thus the Hon'ble Court may graciously be pleased to relax the locus standi and
decide the issue after hearing the grounds of this PIL, which are :1) Right to clean air: 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 Art.21
of the Constitution4. Unlike other nuclear reactors, for e.g. The Rajasthan Atomic Power
Station which is located at a remote location i.e. 65 kms from Kota, the Nuclear Power Plant
being built at Balasore is situated in a locality with High Population density, thus the population
is more vulnerable to cancer and other health problems as the radioactive waste and effluents
stays radioactive for atleast one million years. Furthermore, higher incidence of Leukaemia and
Hodgkin's disease has been reported in young persons in the vicinity of 14 nuclear facilities5.

Pritam Pal v. High Court of Madhya Pradesh, Jabalpur through Registrar, 1993 Supp (1) SCC 529.
Civil Appeal No. 4442 of 2013.
3
Supreme Court of India, Compilation of Guidelines to be followed for entertaining letters/petitions received.
4
M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388; State of M.P. v. Kedia Leather & Liquor Ltd., (2003) 7 SCC
389; Subhash Kumar v. Bihar, AIR 1999 SC 812.
5
"Geographical variation in moralirt from leukaemia and other cancers in Englad and Wales in relation to
proximity to nuclear installations, 1969-78" P.J. Cook-Mozaffari, S.C. Darby, R. Doll et al, Br J Cancer 59:476485(1989).
2

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Radioactive exhaust from nuclear power plants is also known to cause skin problems of several
kinds.
Furthermore, since Balasore is an agriculturally important district, it is pertinent to note that
the increased amount of sulphur dioxide in the air causes acid rain to form which then leads to
contamination of surface water bodies of the region, reduction of productivity of the soil, and
has several other negative effects on the region's vegetation and human health6, therefore it can
have much more dire consequences and repercussions on those whose property is not acquired.
2) Geographical Location of Balasore: It is further pertinent to observe that the territory of
Balasore is situated in seismic Zone III7, which transgresses the safe limit of seismic Zone II
for the erectment of a Nuclear Power Plant. Not only does it transgress this limit, but is also
identified as Tsunami & floods Prone area8 and has witnessed cyclones9 in past. Due to this
fact the Nuclear Plant is much more prone to deadly disasters which the world has witnessed
in the past like Fukushima, Three Mile Islands, Chernobyl, Ukraine, etc. disasters, whose
deadly effects can be still subsists as reported on September 5th, 2013 in The Hindu10. The
Article titled "Fukushima radiation at New High" exhibits the adverse effects of radiation in
Fukushima still, even after two years, exists in huge quantities in the surroundings. The relevant
extract of the same are as follows:"Unprotected persons standing close to contaminated areas would within
hours receive a deadly radiation dose....300 tonnes of radioactive ground water is
escaping into the nearby pacific ocean every day.."
Furthermore, two of the main rivers of Odisha namely Subarnarekha and Budhabalanga, pass
through Balasore and serve the basic requirement of the state. The state being an agricultural
land, these rivers carry vital responsibilities of irrigating the region as well as the surrounding
region. Subarnarekha is already bearing radioactive waste that enters the river through seepage
from tailing ponds of the Uranium Corporation of India at Jadugoda, and any further depletion
of radioactive waste in the river would turn it completely useless. Today the river has little to

A. Bond et al., "Environmental Impact Assessment and the Decommissioning of Nuclear Power Plants - a
Review and Suggestion for a Best Practicable Approach," Environmental Impact Assessment Review 23, 197
(2003).
7
Editorial, "Quake Shadow hangs on Orissa" The Telegraph, January 03.2005.
8
Editorial, "IIT atlas alert for Orissa Coast- Balasore, Bhadrak, Kendrapara declared tsunami- prone" The
Telegraph, November 21, 2007
9
Suhrid Shankar Chattopadhyay, "Killer Cyclone", Frontline, Vol. 16- Issue 24, Nov 13- 26, 1999.
10
Justin McCurry, Fukushima radiation at New High, The Hindu, September 05th 2013.
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offer which was once the lifeline of tribal's population located in the area as fishing industry in
the area is now on the verge of extinction.
3) Ecology and Environmental Impact Assessment: - The Environment Impact Assessment was
judicially considered first in Narmada Bachao Andolan v Union of India11 and finally in
Bombay Dyeing and Mfg. Co. Ltd. Vs. Bombay Environmental Action Group and Ors12, the
Supreme Court directed that it is a mandatory procedure13, in such scenarios. EIA was not
conducted by the Government and the people of the Balasore were not included in the
discussions. Even though the Public opinion is an integral and important aspect of an EIA14, it
was not taken in the instant case, thus exhibiting arbitrariness on part of the Government.
Furthermore, Budabalanga River flowing through Balasore is home to endangered species of
Irrawaddy Dolphins and such radioactive effluents will turn out to be futile for these creatures.
These creatures have been declared endangered by International Union for Conservation of
Nature15. It is the duty of the State to safeguard and conserve wild life and forests which is also
a directive principle of state policy enshrined under Article 48(A) of the Constitution.
4) Disposal of Nuclear Waste: There are currently twenty operational nuclear power reactors
in India, across six states. They contribute less than three per cent of the country's total energy
generation, yet radioactively pollute at every stage of the nuclear fuel cycle: from mining and
milling to reprocessing or disposal. There is no long-term radioactive waste disposal policy in
India unlike other nuclear power generating countries, which is a crucial stage of a nuclear
cycle. Ms. Arundhati Roy rightly expressed solidarity with Kundankulam supporters when she
said "Our government has shown itself incapable of even being able to dispose day to day
garbage, leave alone industrial effluent or urban sewage. How does it dare to say that it knows
how to deal with nuclear waste"16. Therefore, unless long-term disposal policies are made
which are more theoretical than practical, India is not in a position to construct another Nuclear
Power Plant (NPP). Therefore, in light of these highlighted proposition, the gravity of situation
does not permit the setting up of a Nuclear Power Plant (NPP) in Balasore region.
11

Narmada Bachao Andolan v Union of India AIR 2000 SC 3751.

AIR .[2006] 3 SCC 434.
13
Bombay Dyeing and Mfg. Co. Ltd. Vs. Bombay Environmental Action Group and Ors.[2006] 3 SCC 434 it was
held that an expert body albeit within the four corners of the regulatory provisions would be entitled to consider
the entire question from the environmental aspect.
14
Schedule IV subs. By S.O. 356 (E), Dated 4 May 1994.
15
Reeves, R. R., Jefferson, T. A., Karczmarski, L., Laidre, K., OCorry-Crowe, G., Rojas-Bracho, L., Secchi, E.
R., Slooten, E., Smith, B. D., Wang, J. Y. & Zhou, K. (2008). "Orcaella brevirostris". IUCN Red List of
Threatened Species. Version 2011.1. International Union for Conservation of Nature. Retrieved 26 June
2011. Database entry includes a brief justification of why this species is of vulnerable.
16
Editorial, Anti-Nuke activisits plan 'kundankulam chalo', The Hindu, March 05, 2012.
12

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ISSUE NO.2 - WHETHER A WRIT CAN BE ISSUE TO GOVERNMENT OF INDIA ON MATTER

RELATING TO DEFENCE?
It is most humbly submitted that, the present writ petition is being filed as a public interest
litigation. The Supreme Court has observed that 'where a wrong against community interest is
done, 'no locus standi' will not always be a plea to non-suit an interested public body chasing
the wrong doer in the Court'17. Enunciating the broad aspect of PIL, Bhagwati, J., observed
that18: "whenever there is a public wrong or a public injury caused by an act or omission of
the State or a public authority which is contrary to the Constitution or the law, any member of
the public acting bona fide and having sufficient interest can maintain an action for redressal
for such wrong or public injury".
That, under the facts and circumstances of the instant case, a writ is being filed as a public
interest litigation to safeguard the masses against the infringement of their most basic
fundamental right i.e. Right to life enshrined under Article 21 of the Constitution. If
fundamental rights of a group of community are being collectively infringed, or for that matter
even a particular individual right is infringed the remedy can be sought under Article 32 of the
Constitution irrespective of the nature of infringer. While basic purpose underlying Art. 32 is
to empower the Supreme Court to give relief to an aggrieved person whose Fundamental Right
has been infringed, the Court has used Article. 32 for a much wider purpose than that, viz. to
lay down general guidelines having the effect of law to fill the vacuum till such time the
legislature steps in to fill in the gap by making the necessary law to fill till such time the
legislature steps in to fill the gap by making the necessary law19.
Furthermore, under the facts and circumstances of the instant case, there is no direct proximity
of the Nuclear Power Plant with Defence of the Country, as it is merely supplying electricity
to the Defence Research Development Organization's establishment along with the township.
These power plants are created under the agreement called co-operation agreement for peaceful
uses of nuclear energy. 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. Therefore, merely if a NPP is supplying electricity to a DRDO

17

Maharaj Singh v. State of Uttar Pradesh, AIR 1976 SC 2602 : (1977) 1 SCC 155.
S.P. Gupta v. Union of India, AIR 1982 SC 149 : 1981 Supp SCC 87; supra.
19
Supra
18

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establishment, it cannot be said to be exclusively a defence undertaking for the purpose of filing
a writ.
Furthermore, it is admitted that the Land Acquisition Act of 1894 is rightly referred to as
Draconian Law of India, and the Court can merely examine the issue with regards to the
dangers in a project, therefore it is hereby submitted that the propositions put forward before
the Hon'ble Court merely highlights the dangerous aspects of the project20 and thus a remedy
is being sought in terms of violation of Fundamental Rights, which pose a immediate and urgent
threat to the Right to Life of the citizens of Balasore and surrounding area.
It is furthermore noted that, the notification is given by the Government of Odisha to acquire
land under the Land Acquisition Act and not under S.29 of The Defence of India Act, 1962,
which would make the matter exclusively pertaining to Defence. Therefore, the site being
acquired for the Nuclear Power Plant is not directly a Defence establishment and is thus not a
Prohibited Place under the Officials Secret Act, 1923, whose information cannot be revealed
to public. For that matter, Arguendo, it was acquired for Defence Purposes directly, still a writ
can be filed against the Ministry of Defence against the Acquisition or Requisition, had it
infringed the fundamental Rights of the citizens of India.
It is further pertinent to note, that in a rule of law, merely because an issue is of national
importance or public importance, it cannot be imposed upon citizens, as this project will do
more harm than good to the citizens of Balasore and surrounding areas. Fundamental Rights
like right to life u/A 21 of the Constitution can also be enforced during emergencies21, thus this
right requires the most special treatment amongst Fundamental rights, and should be equally
balanced with the issues pertaining to national importance.
Therefore, in lights of the above proposition it is most humbly submitted that, the Hon'ble Court
shall graciously be pleased to pass an interim order restraining the respondents from acquiring
the land, till the decision of the case, as rightly done by Hon'ble HC of Andhra Pradesh
restraining the state government from issuing notification for acquiring land for setting up a
nuclear power plant in Kovvada of Ranasthalam mandal in Srikakulam district22 and further
allow this writ against the "appropriate government" restraining them from acquiring the said
land situated in the Balasore district at Odisha.

20

Tehri Bandh v. State of U.P., (1992) Supp. (1) S.C.C. 44 (para 14).
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
22
Editorail, HC stays land acquisition for Kovvada nuclear plant, Times of India, March 12th 2013.
21

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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 maintainable.

That the writ can 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 PETITIONER

Sd.

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