P87

HNLU Fresher’s Intra Moot Court Competition 2019

BEFORE THE HON’BLE

HIGH COURT OF CIHAR

PEOPLE’S LIBERTY………………….......………………………………….......PETITIONER
v.
M/s. RPF INDUSTRIES PVT. LTD. & ORS………………………………….….RESPONDENT

MEMORANDUM ON BEHALF OF PETITIONER

 Memorandum on the behalf of Petitioner

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ................................................................................................................ 2

INDEX OF AUTHORITIES.................................................................................................................. 3

THE STATEMENT OF JURISDICTION ......................................................................................... 6

THE STATEMENT OF FACTS .......................................................................................................... 7

STATEMENT OF ISSUES .................................................................................................................... 9

SUMMARY OF ARGUMENTS ......................................................................................................... 10

ARGUMENTS ADVANCED .............................................................................................................. 11

PRAYER .................................................................................................................................................. 25

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 Memorandum on the behalf of Petitioner

LIST OF ABBREVIATIONS

ABBREVIATION FULL FORM OF ABBREVIATION

& And

AIR All India Reporter

Anr. Another

Art. Article

Edn./ed. Edition

HC High Court

Hon’ble Honourable

i.e. Id Est (that is)

Ibid. Ibidum

J. Justice

LJ Law Journal

No. Number

M/s Messers

Ors Others

S.C. Supreme Court of India

S.C.C. Supreme Court Cases

Sec. Section

v. Versus

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 Memorandum on the behalf of Petitioner

INDEX OF AUTHORITIES

Constitutions:

 Constitution of India.

Acts and Statutes:

 The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation

and Resettlement Act, 2013.
 Income Tax Act, 1961.
 Environment Impact Assessment Notification, 2006.

Dictionaries:

 Garner Bryan, Black’s Law Dictionary (8th Edition, West Group Publication).

Books:

 Durga Das Basu, Commentary on Constitution Of India, (Wadhwa And Company, 8th Ed.
2007).
 M.P. Jain, Indian Constitutional Law (Lexis Nexis Buttersworth Wadhwa Nagpur, 7th Ed.
2016).
 Arvind P. Datar, Commentary on The Constitution of India (2nd Ed. Wadhwa And Co.
Nagpur 2007).
 H.M. Seervai, Constitutional Law of India, (2nd Ed. Wadhwa And Co. Nagpur 2007).
 Dr. Subhash C. Kashyap, Constitutional Law of India, (Universal Law Publishing, 2nd Ed.
2015).
 V.N. Shukla’s, Constitution of India, (Eastern Book Company, 11th Ed. 2008).

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 Memorandum on the behalf of Petitioner

List of cases cited:

S.No. Case Citation

1. Sukhdev & Ors v. Bhagat A.I.R. 1975 S.C. 1331
Ram & Ors
2. Ajay Hasia v. Khalid Mujib A.I.R. 1981 S.C. 487
3. Ramana Dayaram Shetty v. A.I.R. 1979 S.C. 1628
The International Airport
Authority
4. Binni Ltd.& Ors. v. A.I.R. 2005 S.C. 320
Sadasivan & Ors
5. Janata Dal v. H.S. A.I.R. 1993 S.C. 892
Chaudhury
6. S.P. Gupta v. UOI A.I.R. 1992 S.C. 149
7. Babu Ram Prakash Chandra A.I.R. 1969 S.C. 556
v. Antarim Zilla Parishad
Muzaffar Nagar
8. Harbanslal Sahnia v. Indian (2003) 2 S.C.C. 107
Oil Corporation Ltd.
9. Modern Steel Industries v. (2001) 10 S.C.C. 491
State of U.P. and Ors
10. Whirpool Corporation v. (1998) 8 S.C.C. 1
Registrar of Trademarks
11. Union of India v. Tantia (2011) 5 S.C.C. 697
Construction (P) Ltd.
12. National Sample Survey (2009) 14 S.C.C. 451
Organisation & ANR. v.
Champa Properties
13. Bachchu Prasad Singh v. 1990 (1) BLJR 215
Bharat Wagon &
Engineering Co.
14. Hirday Narain v. Income (1970) 78 ITR 26 (SC)
Tax Officer
15. Hindustan Petroleum (2010) 3 S.C.C. 321
Corporation Ltd. & Ors v.
Super Highway Services &
Anr.

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 Memorandum on the behalf of Petitioner

16. R.D Shetty v. International (1979) 3 S.C.C. 489

Airport Authority of India &
Ors.
17. Punnen Thomas v. State of A.I.R. 1969 Ker 81
Kerala
18. Semens Public A.I.R. 2009 S.C. 1204
Communication Network
Pvt. Ltd. V. UOI
19. Harminder Singh Arora v. (1986) (3) S.C.C. 247
UOI
20. Bannari Amman Sugars Ltd. (2005) 1 S.C.C. 625
v. CTO
21. Gauri Shankar v. UOI A.I.R. (1995) S.C. 55
22. Ashutosh Gupta v. State of (2002) 4 S.C.C. 34
Rajasthan
23. Western UP Electric Power A.I.R. 1970 S.C. 21
& Supply Co. Ltd. V. State
of UP
24. Madhusudan Ghosh v. State A.I.R. 2016 N.O.C. 740
of West Bengal CAL.

25. Maneka Gandhi v. UOI, A.I.R. 1978 S.C. 597

26. Indian Council for Enviro- A.I.R. (1996) S.C. 1446
Legal Action v. UOI
27. M C Mehta v. UOI A.I.R. (1997) S.C. 761

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 Memorandum on the behalf of Petitioner

THE STATEMENT OF JURISDICTION

The Hon’ble High Court of Cihar has the jurisdiction in this matter under Art. 226 of the
Constitution of Indiana.

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 Memorandum on the behalf of Petitioner

THE STATEMENT OF FACTS

I. Union of Indiana is a federal republic country with 29 states and 7 union territories. Popular
Democratic Front (PDF) came with thumping majority in general election of 2014. PDF has
association with business conglomerates, with some media reports suggesting its inclination to
business houses with close relations to the PDF.

II. Economy of Indiana is a developing economy, however unemployment has been a big problem
in the states of Cihar, Lyndia and Vimachal. One of the election promises of PDF was
regarding the steps to counter rising unemployment.

III. Subsequently an Economic panel headed by Finance Minister collected data about
unemployment across all states and concluded that a legislation or policy is required in order to
curb the rising unemployment and create job opportunities.

IV. PDF came out with “Make in Indiana” Policy to encourage industrialisation, self-sufficient
industries and thereby reduce unemployment. Policy contained guidelines regarding tender and
resettlement policy which was in line with the existing resettlement policy of Indiana.

V. Govt. decided that the policy should first be implemented in states of Cihar, Lyndia and
Vimachal, since these states has maximum unemployment.

VI. Tenders were issued and most of them went to M/s RPF Industries Pvt. Ltd. And they setup
industries mainly in the states of Cihar. They generated a lot of employment opportunities and
constructed a lot of schools and hospitals in the state. Initiatives of M/s RPF Industries Pvt. Ltd.
Helped in uplifting the lives of people.

VII. However, after about six months, reports started emerging that they flouted several tender rules
and arm-twisted govt. in issuing them the tenders. Peoples’ Liberty, an NGO carried out reports
making allegations of collusion between the Govt. officials and the top officials of the RPF
Industries. Reports stated that policy mandated that tender could be issued only when there are

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 Memorandum on the behalf of Petitioner

at least two bidders competing. However, RPF Industries were awarded tenders even though
they were sole bidder. Apart from that several environmental rules were flouted. Acquisition of
land and payment of compensation to displaced people were not done properly according to the
Acts. The Rehabilitation policy has also not been implemented yet. There were Reports that the
Industries emitted hazardous substances and had serious impact on the health of the people.

VIII. With the support of Peoples’ Liberty, several demonstrations happened, and people took to
streets opposing the Industries so set up. Govt. contended that the report had no veracity and
accused Peoples’ Liberty of collusion with the opposition parties to topple the Govt. . The govt.
came out with report showing economic progress in state of Cihar. Still the protest did not die
down since the govt. didn’t addressed the demands of people.

IX. Peoples’ Liberty therefore moved to High Court of Cihar with the main grievance that RPF
Industries and the govt. violated Environmental Norms and Constitutional provisions. Peoples’
Liberty prayed that the court should put an immediate closure to all the projects.

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 Memorandum on the behalf of Petitioner

STATEMENT OF ISSUES

Issue 1

Whether a writ lies against a private property.

Issue 2

Whether People’s Liberty has the locus standi and whether alternative remedy needs to be
exhausted to exercise writ jurisdiction.

Issue 3

Whether Art. 14 and Art. 21 have been violated

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 Memorandum on the behalf of Petitioner

SUMMARY OF ARGUMENTS

Issue 1

Whether a writ lies against a private party.

It is humbly submitted before the Hon’ble High Court that the present PIL is maintainable
against M/s RPF Industries Pvt. Ltd. since, it is a state u/a 12 of the Constitution of Indiana. It is
further submitted that since there has been gross violation of Art. 14 and 21 of the Constitution,
the PIL is maintainable, and on the account of the same relief is sought.

Issue 2

Whether People’s Liberty has the locus standi and whether alternative remedy needs to be
exhausted to exercise writ jurisdiction.

It is humbly submitted before the Hon’ble High Court that the petitioner has locus standi in this
case as it is acting bona fide, has sufficient interest in the proceedings, is approaching the court
for the poor and the needy and the complaint is regarding violation of fundamental rights of the
persons whose rights are sought to be vindicated or protected.

It is also humbly submitted that an alternative remedy is not an absolute bar to the invocation of
the writ jurisdiction of the High Court or the Supreme Court and, that without exhausting such a
remedy, a writ petition would not be maintainable.

Issue 3

Whether Article 14 and 21 have been violated.

It is humbly submitted before the Hon’ble High Court that the govt. cannot act arbitrarily at its
sweet will like a private individual, but its action should be in conformity with the standards or
norms which is not arbitrary, irrational or irrelevant and departure from these norms would be
liable to be struck down under Art. 14.

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 Memorandum on the behalf of Petitioner

ARGUMENTS ADVANCED

1. WHETHER WRIT LIES AGAINST A PRIVATE PARTY.

The present petition is maintainable under Art. 226 of the Constitution of Indiana since M/s RPF
Industries Pvt. Ltd. falls within the ambit of “other authorities” as enshrined u/a 12 of the
Constitution.

1.1 Public Interest Litigation can be filed against M/s RPF Industries Pvt. Ltd.

A PIL can be filed against the state for the violation of Fundamental Rights1 u/a 226 of the
Constitution of Indiana. Further to constitute, a private party as being state, the same must fall
within the ambit of “other authorities” u/a 12 of the Constitution and thus must satisfy the court
that it is either an instrumentality or an agency of the state.2 In order to adjudge the same, the
functions of the corporation must be of public importance, and closely related to the
governmental functions.3

A public function is when a body seeks to achieve some collective benefit for the public or a
section of public and is accepted by the public or that section of the public as having authority to
do so. Bodies therefore exercise public function when they intervene or participate in social or
economic affairs in the public interest.4 Institutions engaged in performing public functions are
by the virtue of the functions performed, government agencies.

While considering this question it is necessary to bear in mind that an authority falling within the
expression "other authorities" is, by reason of its inclusion within the definition of 'State' in
Article 12, subject to the same constitutional limitations as the Government and is equally bound
by the basic obligation to obey the constitutional mandate of the Fundamental Rights enshrined
in Part III of the Constitution. We must therefore give such an interpretation to the expression
"other authorities" as will not stultify the operation and reach of the fundamental rights by

1
Sukhdev & Ors v. Bhagat Ram & Ors, A.I.R. 1975 S.C. 1331.
2
Ajay Hasia v. Khalid Mujib, A.I.R. 1981 S.C. 487.
3
Ramana Dayaram Shetty v. The International Airport Authority, A.I.R. 1979 S.C. 1628.
4
Binni Ltd.& Ors. v. Sadasivan & Ors, A.I.R. 2005 S.C. 320.

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 Memorandum on the behalf of Petitioner

enabling the Government to its obligation in relation to the Fundamental Rights by setting up an
authority to act as its instrumentality or agency for carrying out its functions.5

In Ajay Hasia & Ors v. Khalid Mujib the Supreme Court acknowledged the test for determining
as to when a corporation can be said to be an instrumentality, or the agency of the government as
laid down in the case of Ramana Dayaram Shetty v. The International Airport Authority. These
tests are not conclusive or clinching, but they are merely indicative indicia which have to be used
with care and caution while determining whether the corporation falls under the ambit of “other
authorities” u/a Art. 12 of the Constitution.

Summarization of the relevant test gathered from the decision are as follows:

(1) One thing is clear that if the entire share capital of the corporation is held by Government it
would go a long way towards indicating that the corporation is an instrumentality or agency of
Government.

(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of
the corporation, it would afford some indication of the corporation being impregnated with
governmental character.

(3) Where the corporation enjoys monopoly status which is the State conferred or State
protected.

(4) Existence of deep and pervasive State control may afford an indication that the Corporation is
a State agency or instrumentality.

(5) If the functions of the corporation of public importance and closely related to governmental
functions, it would be a relevant factor in classifying the corporation as an instrumentality or
agency of Government.

(6) Specifically, if a department of Government is transferred to a corporation, it would be a

strong factor supportive of this inference of the corporation being an instrumentality or agency of
Government.6

5
Supra note 2.
6
Supra note 2.

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 Memorandum on the behalf of Petitioner

As it is self-evident from the facts of the case that the tenders were given to the corporations
under “Make in Indiana” policy 2018, the purpose and aim of which was to encourage
industrialization, development of self-sufficient industries and thereby reduce unemployment and
accelerate growth. It is also evident that most of the tenders and projects went to M/s RPF
Industries Pvt. Ltd. and abiding by that policy, they generated employment opportunities, setup
schools and hospitals in the State of Cihar. It ipso facto suggests that the functions of the
corporation were of public importance and closely related to the governmental functions which
fulfills the point no. 5 of the test which has been laid down in the case of Ramana Dayaram
Shetty v. The International Airport Authority.

Since it is apparent from the facts that most of the tenders were awarded to M/s RPF Industries
Pvt. Ltd., it occupied a kind of monopolistic status which was conferred and protected by the
state which fulfills the test no. 3 laid down in the case of Ramana Dayaram Shetty v. The
International Airport Authority.

2. Whether People’s Liberty has the locus standi and whether alternative remedy needs to
be exhausted to exercise writ jurisdiction.

2.1 Whether People’s Liberty has locus standi or not.

On the basis of the reasoning of the Supreme Court four pre-conditions have been specified for
determining the locus standi of the petitioner in a PIL. The petitioner:

 must be acting bona fide;

 must have sufficient interest in the proceedings;
 should approach the court for the poor and needy;
 must be regarding the violation of the Fundamental Rights of the persons whose rights
are sought to be vindicated or protected;7

Only a petitioner who fulfills all the four pre-conditions can maintain such an objection.

7
Janata Dal v. H.S. Chaudhury, A.I.R. 1993 S.C. 892.

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 Memorandum on the behalf of Petitioner

i. Whenever there is a public wrong or public injury cause 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 of such wrong or public injury. Any member of the public
having sufficient interest can maintain an action for judicial redress for public injury
arising from breach of public duty or violation of some provision of the Constitution
or the law and seek enforcement of such public duty and observance of such
constitutional or legal provision. If public duties are to be enforced and social
collective “diffused” rights and interests are to be protected, we have to utilize the
initiative and zeal of public minded persons and organizations by allowing them to
move the court and act for a general or group interest, even though, they may not
even be injured in their own rights.8 As it is apparent from the facts that from the very
beginning, People’s Liberty was working with a “bona fide” interest regarding the
people of Cihar as it was the NGO who after waiting for a sufficient period of 6
months conducted a report which brought out serious malfunctions regarding the
working of the government and exposed the defiance of several tender rules with the
collusion of certain ministers in the government, high level officials in the state of
Cihar and top officials of M/s RPF Industries Pvt. Ltd., without having any personal
gains, whatsoever, in this regard. In addition to this, the onus probandi regarding the
accusation made by the govt. on People’s Liberty that it is acting “hands-in-glove”
with the opposition parties to topple the govt. lies on the govt. itself in conformity
with the legal principle of semper necessitas probandi incumbit ei qui agit which
means “the necessity of proof always lies with the person who lays charges.”

ii. Public Interest Litigation which is a strategic arm of the legal aid movement and
which is intended to bring justice within the reach of the poor masses, who constitute
the low visibility area of humanity, is a totally different kind of litigation from the
ordinary traditional litigation which is essentially of an adversary character where
there is a dispute between two litigating parties, one making claim or seeking relief
against the other and that other opposing such claim or resisting such relief. And, it is

8
S.P. Gupta v. UOI, A.I.R. 1992 S.C. 149.

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 Memorandum on the behalf of Petitioner

evident from the statement of facts that People’s Liberty being an NGO, raised this
issue with sincerity and carried several demonstrations too regarding the violation of
various Fundamental Rights of the affected party. This shows integrity and probity of
People’s liberty regarding the sufficient interest in the proceeding.

iii. As the whole setup of tendering and industrialization by the govt. was for the
upliftment of the poor and needy section of the society, which basically comprised of
“unemployed” through the enunciation of “Make in Indiana” policy, which clearly
demarcates the main beneficiary to be the poor and needy people of Cihar and since
the case is being filed against the govt. for the violation of Fundamental Rights of
people it is very well established that People’s Liberty has approached the court for
the benefit of “poor and needy”.

iv. From the statement of facts it is perceptible that, besides having several irregularities
in the issuance of tenders to M/s RPF Industries Pvt. Ltd. and the arbitrary discretion
of the govt. in issuing the tenders which clearly infringed the Fundamental Right of
equality as conferred in Art. 14, there were various other environmental rules which
were defied which included no conduction of environmental impact assessment which
ultimately resulted as a paramount affect and resulted in the poor condition of
environment of living for the people of Cihar which clearly is a blatant attack on the
Fundamental Right to life as conferred in Art. 21 of the Constitution of Indiana.

From the above mentioned four contentions it can be ascertained that in this case, the
petitioner i.e. People’s Liberty is fulfilling all the pre-conditions specified by the
Supreme Court for the determination of the locus standi of the petitioner in the PIL.

2.2 Whether alternative remedy needs to be exhausted to exercise writ jurisdiction.

The rule of exhaustion of statutory remedies before a writ is granted is a rule of ” self-
imposed limitation ”, a rule of policy and discretion rather than a rule of law and the court
may therefore in exceptional cases issue a writ such as a writ of certiorari notwithstanding
the fact that the statutory remedies have not been exhausted.

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 Memorandum on the behalf of Petitioner

In the case of Babu Ram Prakash Chandra v. Antarim Zilla Parishad Muzaffar Nagar9, there
are at least two well recognized exceptions to the doctrine with regard to the exhaustion of
statutory remedies :-

i. Where proceedings are taken before a Tribunal under a provision of law, which is
ultra vires, it is open to a party aggrieved thereby to move the High Court under Art.
226 for issuing appropriate writs for quashing them on the ground that they are
incompetent, without his being obliged to wait until those proceedings run their full
course.10
ii. The doctrine has no application in a case where the impugned order has been made in
violation of the principle of natural justice.11

In the case of Harbanslal Sahnia v. Indian Oil Corporation Ltd.12, the Court observed that “the
Rule of exclusion of writ jurisdiction by availability of an alternative remedy, was a rule of
discretion and not one of compulsion and there could be contingencies in which the High Court
exercised its jurisdiction in spite of availability of an alternative remedy.”

Even in the case of Modern Steel Industries v. State of U.P. and Ors13, wherein on the same point
this Court had held that the High Court ought not to have dismissed the writ petition requiring
the Appellant therein to take recourse to arbitration proceedings, particularly when the virus of a
statutory provision was not in issue.

It is now well-established that an alternative remedy is not an absolute bar to the invocation of
the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such
alternative remedy, a writ petition would not be maintainable.14 “Injustice, whenever and
wherever it takes place, has to be struck down as an anathema to the rule of law and the
provisions of the Constitution.”15.

9
Babu Ram Prakash Chandra v. Antarim Zilla Parishad Muzaffar Nagar, A.I.R. 1969 S.C. 556.
10
Ibid .
11
Ibid.
12
Harbanslal Sahnia v. Indian Oil Corporation Ltd., (2003) 2 S.C.C. 107.
13
Modern Steel Industries v. State of U.P. and Ors, (2001) 10 S.C.C. 491.
14
Whirpool Corporation v. Registrar of Trademarks, (1998) 8 S.C.C. 1.
15
Union of India v. Tantia Construction (P) Ltd., (2011) 5 S.C.C. 697.

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 Memorandum on the behalf of Petitioner

Hence, the High Court is fully within its competence to entertain and dispose of the Writ Petition
filed by the People’s Liberty.

In addition to this a mere plea as to the alternative remedy raised by the respondent before the
case admitted to hearing for non-exhaustion of the alternative remedy is never a plea as to any
bar to the jurisdiction under Art. 226 of the Constitution of Indiana.16 It is only reminding the
court that an alternative and efficacious remedy is available where the whole dispute may
adequately be adjudicated and decided by the court as to whether it shall impose upon its
jurisdiction any limitation as to the petitioners’ exhausting the alternative remedy or not.17

Even in L. Hirday Narain v. Income Tax Officer18 the Supreme Court considered a case where an
alternative remedy of revision under Section 33-A of the Income Tax Act was available to the
writ petitioner, but without exhausting the same he moved the High Court under Article 226 of
the Constitution of India. When reminded of the alternative remedy not exhausted before moving
the High Court, the Supreme Court said:

“If the High Court had not entertained his petition, Hirday Narain could have moved the
Commissioner in revision, because at the date on which the petition was moved the period
prescribed by Section 33-A of the Act had not expired. We are unable to hold that because a
revision application could have been moved for an order correcting the order of the Income Tax
Officer under Section 35, but was not moved, the High Court would be justified in dismissing as
not maintainable the petition, which was entertained and was heard on the merits.”

Hence, with all these cited authorities, it can be ascertained that it is well within the writ
jurisdiction of the High Court of Cihar under Art. 226 of the Constitution of Indiana to entertain
and hear the writ on the merits without the exhaustion of alternative remedy provided to the
petitioners.19

16
National Sample Survey Organisation & ANR. v. Champa Properties, (2009) 14 S.C.C. 451.
17
Bachchu Prasad Singh v. Bharat Wagon & Engineering Co., 1990 (1) BLJR 215.
18
Hirday Narain v. Income Tax Officer, (1970) 78 ITR 26 (SC).
19
Hindustan Petroleum Corporation Ltd. & Ors v. Super Highway Services & Anr. (2010) 3 S.C.C. 321.

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 Memorandum on the behalf of Petitioner

3. Whether Art. 14 and Art. 21 have been violated.

3.1 Whether article 14 have been violated or not.

3.1.1 Arbitrariness in the state’s action

It is now well settled in the decision of SC in E. P. Rayappa v. State of Tamil Nadu & Maneka
Gandhi v. UOI that Article 14 strikes at arbitrariness in State action and ensures fairness and
equality of treatment. It requires that State action must not be arbitrary but must be based on
some rational and relevant principle which is non-discriminatory: it must not be guided by any
extraneous or irrelevant considerations, because that would be denial of equality.20

The principle of reasonableness and rationality which is legally as well as philosophically an

essential element of equality or non-arbitrariness is protected by Article 14 and it must
characterise every State action, whether it be under authority of law or in exercise of executive
power without making of law.21

The State cannot, therefore act arbitrarily in entering into relationship, contractual or otherwise
with a third party, but its action must conform to some standard or norm which is rational and
non-discriminatory.22

It must, therefore follow as a necessary corollary from the principle of equality enshrined in
Article 14 that though the State is entitled to refuse to enter into relationship with any one, yet if
it does so, it cannot arbitrarily choose any person it likes for entering into "such relationship and
discriminate between persons similarly circumstanced, but it must act in conformity with some
standard or principle which meets the test of reasonableness and non-discrimination and any
departure from such standard or principle would be invalid unless it can be supported or justified
on some rational and non-discriminatory ground.23

20
R.D Shetty v. International Airport Authority of India & Ors., (1979) 3 S.C.C. 489.
21
Ibid .
22
Ibid .
23
Ibid .

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 Memorandum on the behalf of Petitioner

Where the Government is dealing with the public, whether by way of giving jobs or entering into
contracts or issuing quotas or licences or granting other forms of largess, the Government cannot
act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but
its action must be in conformity with standard or norms which is not arbitrary, irrational or
irrelevant. The power or discretion of the Government in the matter of grant of largess must be
confined and structured by rational, relevant and non-discriminatory standard or norm and if the
Government departs from such standard or norm in any particular case or cases, the action of the
Government would be liable to be struck down unless it can be shown by the Government that
the departure was not arbitrary but was based on some valid principle which in itself was not
irrational, unreasonable or discriminatory.24

In the case of Punnen Thomas v. State of Kerala Hon’ble High Court stated,

“The Government is not and should not be as free as an individual in selecting the recipients for
largesse. Whatever its activity the Government is still the Government and will be subject to
restraints, inherent in its position in a democratic society. A democratic Government cannot lay
down arbitrary and capricious standards for the choice of persons with whom alone it will
deal.”25

In the case of Semens Public Communication Network Pvt. Ltd. V. UOI, The Hon’ble SC
unambiguously observed that the decision-making process of the govt. or its instrumentality
should exclude remote possibility of discrimination, arbitrariness and favouritism. It should be
transparent, bona fide and in public interest.26

In the case of Harminder Singh Arora v. UOI, tenders were invited for the supply of milk by a
notice which demanded supply of fresh buffaloes or cows’ milk but the respondent had
submitted for the pasteurised milk, still the military farm which was another respondent in the
case accepted the tender in arbitrary manner without abiding by the norms and guidelines of the
tender notice. In this case, the court held if the state or its instrumentalities choses to invite

24
Ibid.
25
Punnen Thomas v. State of Kerala, A.I.R. 1969 Ker 81.
26
Semens Public Communication Network Pvt. Ltd. V. UOI, A.I.R. 2009 S.C. 1204.

19
 Memorandum on the behalf of Petitioner

tenders then it must abide by the norms and guidelines mentioned in the tender notice and it
cannot act in arbitrary fanciful and capricious manner.27

In Bannari Amman Sugars Ltd. V. CTO, Court stated,

“Where a particular mode is prescribed for doing an act and there is no impediment in adopting
the procedure, the deviation to act in different manner which does not disclose any discernible
principle which is reasonable in itself shall be labelled as arbitrary. Every state action must be
informed by reason and it follows that an act uninformed by the reason is per se arbitrary.”28

In the instant case, since the policy very specifically mandated that the tender could be issued for
the industries only where there are at least 2 bidders for it. Since, M/s RPF Industries Pvt. Ltd.
Have been awarded tenders for industrial projects in which they were the sole bidder the govt.
departed from the norms and guidelines of the policy and acted in arbitrary, fanciful and
capricious manner which is liable to be struck down as a violation of article 14 according to the
SC in Harminder Singh Arora v. UOI

3.1.2 Administrative Discrimination

In the case of Gauri Shankar v. UOI, it was held that under article 14, the equals should not be
treated unlike and the unlikes should not be treated alike. Likes should be treated alike.29

In the case of Ashutosh Gupta v. State of Rajasthan, the court said that to apply the principle of
equality in a practical manner the courts have evolved the principle that if the law in question is
based on rational classification it is not regarded as discriminatory.30

SC in the case of Western UP Electric Power & Supply Co. Ltd. V. State of UP, underline the
principle that article 14 of the constitution aims to protect similar persons placed against
discriminatory treatment. A person setting up a grievance of denial of equal treatment of law
must establish that between the persons similarly circumstanced somewhere treated to their

27
Harminder Singh Arora v. UOI, (1986) (3) S.C.C. 247.
28
Bannari Amman Sugars Ltd. V. CTO, (2005) 1 S.C.C. 625.
29
Gauri Shankar v. UOI, A.I.R. (1995) S.C. 55.
30
Ashutosh Gupta v. State of Rajasthan, (2002) 4 S.C.C. 34.

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 Memorandum on the behalf of Petitioner

prejudice and the differential treatment had no reasonable relation to the object sort to be
achieved by the law.31

In the instant case, facts suggest that the unemployment has been a big problem specially in the
state of Cihar, Lyndia & Vimachal. As the govt. initiative, it was decided that the policy shall
first be implemented in the states of Cihar, Lyndia & Vimachal since these states have maximum
unemployment putting them under a reasonable classification.

The facts also suggest that when the tenders were issued the sole bidder M/s RPF Industries Pvt.
Ltd. Won most of the tenders and set up industries mainly in the state of Cihar. As it has already
been contended by the petitioner that M/s RPF Industries Pvt. Ltd. is an instrumentality of the
state. Keeping that in mind the M/s RPF Industries Pvt. Ltd. acted in a discriminatory manner by
setting up industries only in state of Cihar, even though the people of Cihar, Lyndia and
Vimachal were on an equal footing and deprived the people of Lyndia & Vimachal of the similar
opportunities which they were entitled to which suggest that the action of the instrumentality of
the state was in contravention of the article 14 of constitution of Indiana.

3.2 Whether Art. 21 has been violated

The right to life includes the right to live with human dignity and all that goes along with it,
namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities
for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and
commingling with fellow human beings.

The magnitude and the component of this right depends upon the extent of the economic
development of the country, but it must, include the right to basic necessities of life and also the
right to carry one such functions and activities as constitute the bare minimum expression of the
human self.

Every act which offends against or impairs human dignity would constitute deprivation, pro tanto
of this right to life and it would have to be in accordance with reasonable, fair and just procedure
established by law which stands the test of other Fundamental Rights.

31
Western UP Electric Power & Supply Co. Ltd. V. State of UP, A.I.R. 1970 S.C. 21.

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 Memorandum on the behalf of Petitioner

In this present case the human dignity has been compromised by several factors which includes
improper acquisition of land and non-payment of compensation to the displaced people,
emittance of hazardous substances, having serious impact on the health of the people living in
Cihar.

3.2.1 Anomalies in the acquisition of land

The expression “personal liberty” occurring in article 21 is of the widest amplitude and it covers
a variety of rights which go to constitute the personal liberty of man and it also includes rights
which “have been raised to the status of distinct Fundamental Rights and given additional
protection under Art. 19.”

As it is evident from the statement of facts that acquisition of land and payment of compensation
to the displaced people were not done properly by the government under the Acts. Moreover,
rehabilitation policies was also envisaged by the govt. had not been implemented even after six
months after the acquisition. In the act RFCTLARR Act it has been stated that full compensation
is to be paid within a period of three months and monetary part of entitlement within a period of
six months from the date of the collector arriving at the final award after taking into account all
the considerations mentioned in the act. Only after the insuring of the above stated payment can
the govt. take the possession of the land.

In Madhusudan Gosh v. State of West Bengal32, the writ court has observed that the petitioner
has to plea with clean hands and with utter honesty ad transparency which will manifest itself
from the pleadings itself wherein only material facts are required to be stated without concealing
or suppressing anything. Thus, it is enough to secure compliance with the prescription of Art. 21
with semblance of a procedure for depriving a person of his life or personal liberty, but the
procedure prescribed by the law must be reasonable, fair and just. The court expanded the scope
and ambit of the right to life and personal liberty enshrined in Art. 21 and sowed the seed for
future development of the law enlarging this most fundamental of Fundamental Rights.33

As it was held in Sunil Batra v. Delhi Administration, the Right to life included the bare
necessities comprising shelter and other facilities, which in the present case has been hampered

32
Madhusudan Ghosh v. State of West Bengal, A.I.R. 2016 N.O.C. 740 CAL.
33
Maneka Gandhi v. UOI, A.I.R. 1978 S.C. 597.

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 Memorandum on the behalf of Petitioner

as the govt. has not implemented the rehabilitation policy existing in the Union of Indiana.
Hence, it can be perceived that it is a clear violation of Art. 21.

3.2.2 Absolute liability u/a 21

For the purpose of Environmental Protection, the courts are depended upon directive principles
as those contained in article 47 and 48A as well as on the fundamental duty contained in article
51A (g) of the Constitution. The right to healthy environment is an internationally recognized
essential. For example, the Basel convention effectuates the fundamental rights guaranteed under
article 2.

On the question of relationship between ecology and art. 21, the thinking of the court is that
since the right to life is a fundamental right under art. 21, and since the right to life connotes
“Quality of Life”, a person has the right of enjoyment of pollution-free water and air to enjoy life
fully.

The principle of “polluter pays” means that one who carries on a hazardous activity is liable to
make good the loss caused to another person by such activity. The court has ruled in the case of
Indian Council for Enviro-Legal Action v. UOI that:

“Once the activity carried on is hazardous or inherently dangerous, the person carrying on such
activity is liable to make good the loss caused to any other person by his activity irrespective of
the fact whether he took reasonable care while carrying on his activity. The rule is premised
upon the very nature of the activity carried on.”34

In M C Mehta v. UOI, the court has observed,

“The ‘Polluter Pays’ principle as interpreted by the SC means that absolute liability for harm to
the environment extends not only to compensate the victims of pollution but also the cost of
restoring the environmental degradation.”35

In the instant case, the report of Peoples’ Liberty clearly suggests that the industries so set up
emitted hazardous substances which had serious impact on the health of people living in the area.
This particular case falls under the “Polluter Pays” principle and thus the M/s RPF Industries Pvt.

34
Indian Council for Enviro-Legal Action v. UOI, A.I.R. (1996) S.C. 1446.
35
M C Mehta v. UOI, A.I.R. (1997) S.C. 761.

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 Memorandum on the behalf of Petitioner

Ltd. is absolutely liable for the harm it caused to the environment and people residing in the
nearby areas. Hence, M/s RPF Industries Pvt. Ltd. violated the art. 21 of constitution of Indiana
and is liable to compensate the victims of pollution and to restore the cost of environmental
degradation.

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 Memorandum on the behalf of Petitioner

PRAYER

Wherefore, in the light of facts of the case, issues raised, arguments advanced and authorities
cited, this Hon’ble court may be pleased to adjudge and declare that:

 Writ is maintainable against the respondent 1, a private party, in this case.

 The tender awarded to Respondent 1 by Respondent 2, be held unconstitutional and thus

all the industries so set up by Respondent 1 be put to an immediate closure.

 The Respondent 1 harmed the environment and the health of people living nearby,
thereby compensate the victims and compensate the cost of environmental degradation
done by them.

Or, pass any other order as it deems fit in the interest of equity, justice and good conscience.

For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray
All of which is respectfully submitted,

S/d:
Place: Cihar
(Counsel on behalf of the petitioner)
Date: 25th January 2019

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