my 1st moot memorial

IN THE HON’BLE

SUPREME COURT OF INDIA

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA,1950)

WRIT PETETION ________/2011

ANDOLAN PANDEY& OTHERS………… PETITIONER

v.

TIKRAM BHATIA…….………… RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

COUNSEL FOR THE RESPONDENT

MEMORANDUM ON BEHALF OF THE RESPONDENT

1 MEMORIAL FOR THE RESPONDENT

TABLE OF CONTENTS

1. TABLE OF CONTENTS………………………………………………………2

2. LIST OF ABREVIATIONS……………………………………………………3

3. INDEX OF AUTHORITIES…………………………………………………..4-6

4. STATEMENT OF JURISDICTION……………………………………………7

5. STATEMENT OF FACTS…………………………………………………...….8

6. ISSUESRAISED………………………………………………………………….9

7. SUMMARY OF ARGUMENTS………………………………………..………10

8. ARGUMENTS ADVANCED……………………………………………………11

8a) WHETHER THE WRIT PETETION IS MAINTAINABLE ……………….…..11

(i) Whether the petitioner has exhausted all his remedies provided by law.

(ii) Whether the petition is filed against the ‘state’.

(iii) Whether the petitioner has locus standi.

8b) WHETHER THE ESTABISHMENT IS VIOLATIVE OF FUNDAMANTAL

RIGHTS………………………………………………………………………………………14

(i) Whether the writ petition is violative of article 19(1)(g).

(ii) Whether the writ petition is violative of article 21.

(iii) Whether the writ petition is violative of article 14.

8.c)WHETHER THE ESTABLISHMENT IS VIOLATION OF ENVIRONMENT

PROTECTION ACT,1986?........................................................................................................18

8.d)PETETIONER’S DEMAND FOR 50% RESERVATION COMES UNDER THE

PURVIEW OF THE INDIAN CONSTITUTION?

(i) Whether the institution is state aided or not?.................................................................19

9. PRAYER………………………………………………………………………...…………….24


LIST OF ABREVIATION

1. A.P……………………………………………………………………Andhra Pradesh

2. AIR ……………………………..…………………………………All India Reporter

3. All…………………………………………………………………………..Allahabad

4. Art………………………………………………………………………………Article

5. Cal…………………………………………………………………………….Calcutta

6. Co……………………………………………………………………………Company

7. CJ……. ………………………………………………………………….Chief Justice

8. E.d……………………………………………………………………………edition

9. G.O………………………………………………………………...Government Order

10. Hon’ble……………………………………………………………………Honourable

11. J&K………………………………………………………………..Jammu & Kashmir

12. 12. Ltd ………………………………………………………………………..Limited

13. M.P…………………………………………………………………..Madhya Pradesh

14. Mad…………………………………………………………………………….Madras

15. Ors………………………………………………………………………………Others

16. P&H………………………………………………………………..Punjab & Haryana

17. p…………………………………………………………………………………..page

18. Para………………………………………………………………………… Paragraph

19. Pat………………………………………………………………………………. Patna

20. Pvt…...................................................................................................................Private

21. Raj…………………………………………………………………………...Rajasthan

22. S.C……………………………………………………………………..Supreme Court

23. SCC…………………………………………………………......Supreme Court Cases

24. SCR………………………………………………………… Supreme Court Reporter

25. . Sec……………………………………………………………………………Section

26. U.P………………………………………………………………………Uttar Pradesh

27. UOI………………………………………………………………….....Union of India

28. . US……………………………………………………………………...United States

29. v…………………………………………………………………………………versus

30. Vol……………………………………………………………………………..volume


31. Govt……………………………………………………………………….government

INDEX OF AUTHORITIES

BOOKS

1. D.J. De.,The Constitution of India (3rd ed., Vol. 1&2, Asia Law House,

Hyderabad, 2008). 2.

2. Dr. L.M. Singhvi, JagadishSwarup Constitution of India (2nd ed., Vol 1 to 3,

Modern Law Publication, New Delhi, 2008).

3. Dr. Subhash C. Kashyup, Constitutional Law of India (1st ed., Vol. 1&2,

Universal Law Publishing Co., Delhi, 2008).

4. Durga Das Basu, Case Book on Indian Constitutional Law (2nd ed., Kamal Law

House, Kolkata, 2007).

5. Durga Das Basu, Commentary on Constitution of India (8th ed., Vol 1&2,

Wadhwa Nagpur, 2007).

6. Durga Das Basu, Constitutional Law of India (7th ed., Wadhwa& Co., Nagpur,

2005).

7. Gokulesh Sharma, An Introduction to Jurisprudence (1st ed., Deep & Deep

Publications Pvt. Ltd., 2008).

8. H.M. Seervai, Constitutional Law of India (4th ed., Vol. 1 to 3, Universal Law

Publishing Co. Pvt. Ltd., Delhi, 2008).

9. M.P. Jain, Indian Constitutional Law (5th ed., Vol. 1&2, Wadhwa& Co., Nagpur,

2003).

10. N.K. Jayakumar,Lectures in Jurisprudence (2nd ed., Lexis NexisButterworths,

New Delhi, 2006).

11. P.M. Bakshi, The Constitution of India (8th ed., Universal Publication Co., New

Delhi, 2007).


12. V.N. Shukla, Constitution of India (Rev. Mahendra P. Singh), (10th ed., Eastern

Book Co., Lucknow, 2006).

13. Universal's Encyclopaedia of Central Laws, Vol- 15.

CASES

1. T.M.A. Pai Foundation v. State of Karnataka AIR 1995 SC 1938

2. Unnikrishnan v. State of A.P AIR 1993 SC 2178

3. Ajayhasiav.Khalidmujib AIR 1981 SC 487

4. .Islamic Academy of Educations v. State of Karnataka, AIR 2003 SC 3724

5. P.N. Kumar v.Municipal Corporation AIR 1987 (4)SCC 609

6. K.k.kochuni v. State of Madras AIR 1960 SCC 1080

7. KanubhaiBrahmabhattv.V.G. Rao AIR 1987 SCC 1159

8. P.A.Inamdar v. State of Maharashra, AIR 2005 SC 3226

9. A.K.Gopaalan’s v. Union of India

10. Maneka Gandhi v. union of India

11. St.stephens v. University of Delhi 1992 SCC 558

12. Ajizbasha v. Union of india AIR 1968 SC 662

13. Nareshagarwal v. Union of India( times of india jan 6,2006)

14. Dineshkumar v. Motilal Nehrumedical college. AIR 1985 SC 1059

15. Pradeepjain v. Union of India AIR 1984 SC 1420

16. Balaji v State of Mysore,AIR 1963 SC 649

17. Jagdish Saran v Union of IndiaAIR 1980 SC 820 at 829

18. Kerala v. N.M. Thomson

19. P. Rajendram v State of Madras,AIR 1968 SC 1012

20. MohanBir Singh Chawla v Punjab University, AIR 1997 SC 788

21. Consumer Education and Research Society vUnion of India AIR 1989 SC 9

22. Goa Foundation v Conservator of Forests,ForestDepartment, PanajiAIR 1999

Bom 177

23. BhanwasiSevaAshram v State of UttarPradeshAIR 1987 SC 374

24. K.thimmappa v. chairman, central board of directors, AIR 2001 SC 478,

25. Sachidanandapandey v. state of west Bengal AIR1987 2 SCC 295


STATUTES

1. The Constitution of India, 1950.

2. Environment Protection Act, 1986.

DICTIONARIES

1. Bryan A. Garner, Blacks Law Dictionary (8th ed. Thomson West, 2004).

2. Curzon l.b., Dictionary of Law, (Pitman Publishing, New Delhi, 4thed, 1994).

3. Aiyar P. Ramanatha, The Law Lexicon: the encyclopedia law dictionary with

legal maxims, latin terms, words & phrases, (Delhi Law House, Delhi, 2nd ed.,

1997).

4. Oppe A.S., Wharton’s law lexicon, (Sweet & Maxwell, New Delhi, 14th ed.,

1997).


STATEMENT OF JURISDICTION

The petitioner has approached the Hon’ble Supreme Court of India under the provision

of article 32 of the Indian constitution which provides for filing of writ petition.

Therefore the respondents duly submits to the jurisdiction of the Hon’ble Supreme

Court.


STATEMENT OF FACTS

1.Tikram Bhatia is well known entrepreneur. He heard that legal education is atool for

social empowerment. Hence he decided to establish a law college by the name of

Vikraal Vidhi College on the bank of river Himadri in prakritipura. He feels it is the

way of giving back to the society. Prakritipura is known to be a tourist spot and shelter

to a number of exotic species of insects, flowers and animals including the “sleepy

buffoons” and is also rich in flora and fauna.

2. The tourist guides and the wildlife activists out there like the “Bandar bachao morcha”

feel that coming up of educational institution in such an area would seriously affect the

flora and fauna of the place which is they think is ecologically fragile.

3. Further, Andolan Pandey, a social activist is also infuriated with this decision as he

feels it is the violation of the fundamental rights of the citizens of prakritipura. Hence

raises protest against establishment of the law college.

4. In retaliationhe also raised the demand for 50% reservation in vikraal vidhi college for

the citizens of prakritpura, which is completely unacceptable by Tikram Bhatia who

feels that this would completely dissuade thelaw college from becoming a world class

legal educational institution.

5.Hence Andolan Pandey who is not aware of laws and rights along with the “Bandar

Bachao Morcha” files a writ petition directly in the Hon’ble Supreme Court of India,

against the violation of the fundamental rights of the citizens of prakitipura and asks his

lawyer to frame as many charges as possible against Tikram Bhatia. Aandolan Pandey

wants that the case should be filed in the Hon’ble Supreme court only, because pleading

in a court lower than the supreme court would be against his self- respect.


ISSUES RAISED

1.WHETHER THE WRIT PETITION UNDER THE ARTICLE 32 IS

MAINTAINABLE OR NOT?

a) The petitioner has not exhausted all the remedy provided by law.

b)The petitioner is filed against the ‘state’.

c)Whether the petitioner has locus standi.

2.WHETHER THE ESTABLISHMENT IS PRESENTLY VIOLATING THE

FUNDAMENTAL RIGHTS OR NOT?

a) Whether the establishment is the violation of Art. 14.

b) Whether the establishment is the violation of Art. 19.

c) Whether the establishment the Art. 21.

3.WHETHER THE ESTABLISHMENT IS VIOLATION OF ENVIRONMENT

PROTECTION ACT 1986.

4.WHETHER THE DEMAND FOR 50% RESERVATION BY THE PETITIONER

IS CONSTITUTIONAL OR NOT?

a)Whether the institution is state aided or not.


SUMMARY OF ARGUMENTS

1. WHETHER THE WRIT PETETION FILED UNDER THE ARTICLE 32 IS

MAINTAINABLE BEFORE THEHON’BLE SUPREME COURT ?

It is humbly submitted that under Article. 32, Part III of Indian Constitution that the

citizens of India have the “right to constitutional remedy”. Any citizen of India can

approach the Supreme Court under this article if his fundamental rights have been

infringed by the state, itsinstitution, organization or agency.

In this writ petition not against state or its agency, hence this petition is not maintainable

before the Hon’ble Supreme Court.

2 .WHETHER THE WRIT PETETION IS VIOLATIVEOF THE FUNDAMENTAL

RIGHTS ?

a).It is humbly submitted that the establishment is not violative of article 19(1) (g) i.e.

right to profession .

b) It humbly submitted that the establishment is not violative of article 21 i.e. right to

life and protection of personal liberty.

c) It is humbly submitted that the establishment is not violative of article 14i.e right to

equality.

3 .WHETHER THE WRIT PETITION IS VIOLATION OF THE

ENVIRONMENTAL PROTECTION ACT 1986.

4. THE DEMAND FOR 50% RESERVATION IS CONSTITUTIONALY VALID?

It is humbly submitted under the article 30(1) the right to establish of religion, race, sex,

place of birth or any of them. The word “discrimination” means to give distinctive

privilege or favor to one section of the society over others.


ARGUEMENT ADVANCED

I. WHETHER THE PETITION IS MAINTABLE BEFORE THE HON’BLE

SUPREME COURT?

It is humbly submitted to the hon’ble supreme court that under Article 32 of the Indian

constitution is fundamental right which gives the aggrieved the right to move to the

supreme court for the effective remedy for the enforcement of his fundamental rights if

it has been violated. Article 32 (1) guaranteed the right to move to the supreme court by

“appropriate proceeding” for the enforcement of the fundamental right conferred in the

part III of the constitution. Only those proceedings are appropriate which invoke, by

original petition, the jurisdiction of the supreme court to issue, according to the nature of

the case, writs or orders or directions of the types described in clause (2).

Any case is maintainable before the Supreme Court under article 32 of the constitution,

only:

a)If the petitioner has exhausted all the remedy provided by law and has not obtained

proper redress:

It is humbly submitted that under the provision of the Art. 32, there is the existence of

the provision for alternative remedy.The court is bound to take into cognizance the

petition of the petitioner if his fundamental rights have been violated and only after he

has exhausted all his alternative remedy provided by the law and has not obtained proper

redress. In case of P.n.kumar v. Municipal Corporation,1, two bench judges said that a

petition than the Supreme Court in the first instance. The reason given by the Supreme

Court was that there was a huge backlog of cases pending before the Supreme Court.

The same decision was reiterated in the case of K.K.Kochuni v. State of Madras2 the

court held that Art.32 itself being a fundamental right the court will have to give relief

notwithstanding the existence of an alternative remedy and in Kanubhai Brahmabhatt v.

V.G. Rao3 that in order to enforce fundamental right judicial review of administration,

legislation and government action of any legislation or an administrative action or non -1AIR 1987 (4)SCC 6092AIR 1960 SCC 10803AIR 1987 SCC 1159


action is permissible. But article 32 cannot be invoked simply to adjudge the validity of

any legislation or an administrative action unless adversary affects Petitioner’s

Fundamental rights. The same decision was reiterated in Kharak Singh v. Union of

India4 the petitioner has the existence of provision of alternative remedy. The court is

bound to take cognizance of the petition if his fundamental rights have been infringed,

only after he has exhausted all his remedy provided by law and has not obtained any

proper redress. But in this case the petitioner has exhausted his means of legal aid and

same for redress of his disputes, directly to Supreme Court.

In the present case of Andolan Pandey v. Tikram Bhatia, the petitioner has not

exhausted of the legal aid provided by the law and has directly filed his petition in the

Hon’ble supreme court. hence it can be inferred from the various case laws that Andolan

Pandey and others have no ground of filing there petition in the Hon’ble supreme court

of India. Hence the present petition is not maintainable before the supreme court of

India.

b) If the petition is filed against the “state”:

It is humbly submitted that the term ‘state’ has been defined under Art. 12 that the state

include the govt. and parliament of India and the govt. of the legislature of each of the

states and all local or other authorities within the territory of India or under the control

of govt. of India. By and large fundamental rights enforced against the state.

In the case of Ajay Hasia v. Khalid Mujib5, Supreme Court laid down the following test

to adjudge whether a body is an instrumentality of the govt. or not:

i) If the entire share capital of the body is held by the govt. , it along way towards

indicating that the body is an instrumentality of the govt.

ii)Whether the financial assistance given by the govt. is so large as to meet almost entire

expenditure of the body, it may indicate that the body is pregnant with governmental

character.

iii) It is a relevant factor if the body enjoys monopoly status which is conferred or

protected by the state.

4 AIR 1963 SCC 12955 AIR 1981 SC 487


iv)Existence of the deep and pervasive state control may afford an indication that the

body is a state instrumentality.

v)If the functions performed by the body are the importance and closely relaed to

governmental functions, it is a relevant factor to treat the body as an instrumentality of

the government.

Hence it is inferred from the given case that since the Vikral Vidhi College does not

complies with any of the criteria of becoming a body of governmental authority so it

does not comes in the jurisdiction, control or authority of state, and since any writ

petition filed under article 32 should be filed against the ‘state’ only. Hence the writ

petition is not maintainable before the Hon’ble Supreme Court.

c)If the petitioner has locus standi

It is humbly submitted that under Art. 32 do not prescribe the persons or classes of

persons who can invoke the Supreme Court’s jurisdiction for redress of their grievances.

The matter of ‘standing’ thus lies within the realm of the Supreme Court. A person’s

whose fundamental right has been infringed has locus standi to move to Supreme Court

under Art.32 for the enforcement of his right.

The fundamental rights to be enforced under article 32 must ordinarily to be right of the

petitioner himself. It is not competent to a person to seek to enforce the rights of another

except when the law permits him to do so. This principle emanates from the theory that

the remedies and rights are correlative and, therefore, only a person whose own right is

in jeopardy is entitled to seek a remedy.

Since the petitioner Andolan Pandey has not complied with any of the requirements

which are essential for maintainability of the writ petition in the Hon’ble Supreme

Court:

i) The petitioner has filed the writ petition in the Hon’ble Supreme Court

directly, rather exhausting all the alternative redress provided by law.

ii) The petition is not filed against the ‘state’ but against a private individual

Tikram Bhatia, who is an entrepreneur.

iii) The petitioner has filed the case on behalf of the citizens of Prakritipura and

has not exhausted any of the alternative remedy provided by law rather has

filed the petition directly in the Hon’ble supreme court.


On the pretext of not complying with any of the requisites, the petition does not come

under the purview of article 32. Hence the petition is not maintainable before the

supreme court in prima facie.

2. WHETHER THE ESTABLISHMENT IS VIOLATIVE OF FUNDAMENTAL

RIGHTS?

It is humbly submitted that the Part III of the Indian constitution talks about the

fundamental rights granted and guaranteed to the citizens. Fundamental Right is a

necessary consequence of the declaration in the preamble to the constitution that the

people of India have solemnly resolved to constitute India into a sovereign, socialist,

Democratic, Republic and to secure to all citizens justice, economic and political; liberty

of thought and expression, belief, faith and worship; equality of status and opportunity.

The fundamental rights hold a great importance since it is justiciable. Under the article

32 of the fundamental rights impart to the citizens of India the right to move to the court

in case of violation or infringement of these rights. The writ petition under art.32 is

enforceable only when there has been a breach of fundamental rights.

a)Whether the establishment is violation of article 19(1)g?

It is humbly submitted that under article 19(1)g guarantees that all citizens shall have the

right to practice any profession or to carry on any occupation, trade or business. It can

be regulated and restricted by the authority of law. The state can:

a) Impose reasonable restriction on this right,

b) Prescribe professional or technical qualification necessary for practicing any

Profession, trade or business.

In the case of P.A.Inamdar v. State of Maharashra6, it has been held that the right to

establish an educational institution for charity or profit, being an occupation is

guaranteed under the constitution to all citizens under article 19(1)g and to minorities

under article 30.Education even though is an occupation but it cannot be equated with

trade or business. In short, education is the national wealth of a country and is the most

important factor for nation’s progress and prosperity, permissible under article 19(1)(g)

of constitution to prevent profiteering and selection of non- meritorious students. It

6 AIR 2005 SC 322614

MEMORIAL FOR THE RESPONDENT

disallows charity of capitation fee and found reservation seats unreasonable restriction

on the right under article 19(1)(g).

Initially in the case of unnikrishnan v. state of Andhra Pradesh7, ,the court had denied

that education could be trade, business or profession within the meaning of article 19(1)

(g) because all these activities are carried for profit while “education has never been

commerce in country”. The court however coincided that e4ducation could perhaps fall

under the category of occupation provided no recognition is sought from universities.

But most importantly in the T.m.pai foundation v. state of karnataka 8 held that

imparting of education could be an occupation under article 19(1)(g) . Consequently

right to establish and administer educational institution is available to all citizen of India

subject to reasonable restriction imposed on that right under clause of article . The same

decision was reiterated in Islamic academy of education v. state of Karnataka9,the court

emphasized that educational institution could not be used for profiteering and directed

appointment of committees in each stage for the purpose offsetting the fee structure and

admission in unaided private institution.

Hence relying on the decisions superseded in the P.A.Inamdar case10 and T.m. Pai

foundation case11 it is well proven that since right to establish educational institution is

available to all citizen subject to reasonable restriction .Hence the defendant Tikram

Bhatia ground is legally sound and hence there is no violation of article 19(1)(g) of part

III of the fundamental right.

b) Whether the establishment is violation of article 21?

Article 21 states that no person shall be deprived of his life or personal liberty except

according to procedure establishment by law.

According to the A.K.Gopaalan’s v. Union of India,12 Art. 21 guaranteed the right to life

and personal liberty to citizens only against the arbitrary action of the executive, and not

from legislative action. The state could interfere with the liberty of citizens if it could

support its action by a valid law. But after the Maneka Gandhi v. Union of India13

decision Art. 21 now protect the right of life and personal liberty of citizens not only

from the executive action from the legislative Action also. a person can be deprived of

7 AIR 1993 1 SCC 6458 2002 8 SCC 4819 AIR 2003 6 SCC 69710 AIR 2005 SCC 322611 AIR 2008 8 SCC 48112

13


his life and personal liberty if two conditions are complied with, first , there must be a

law and secondly , there must be a procedure by that law, provided that the procedure is

just, fair and reasonable. The 44th amendment has amended article 359 which provides

that the enforcement of that the enforcement of the right to life and liberty under article

21 cannot be suspended by the presidential order. This amendment is intended to prevent

the re-occurrence of the situation in future which arose in the habeaus corpus case.

In Gopalan’s case14 the supreme court interpreted the ‘law’ as “state made law” and

rejected the plea that by the term of law in article 21 meant not the state made law but

jus natural or the principles of natural justice.

Finally in Maneka Gandhi v. Union of India15, the Supreme Court has not only overruled

Gopalan’s case but has widened the scope of the words ‘personal liberty’ considerably.

Bhagwati observed :

“the expression ‘personal liberty’ in article 21 is of the widest amplitude and it covers a

variety of rights which go to constitute the personal liberty f man and some of them have

raised to the status of distinct fundamental rights and given additional protection under

article 19.”

The article 21 under the fundamental right guarantees the protection of ecology and

environment pollution. In the case of Sachidananda Pandey v. State of West Bengal16,

The appellant through public interest writ petition challenged the govt. of west Bengal’s

decision to allot a land for the construction of a five star hotel in the vicinity of

zoological garden of Calcutta. The court has always the power to give necessary

directions. In the present case, it was held that the decision to allot the land for the

constitution of hotel was taken openly by the govt. after taking into consideration all

facts and considerations including ecology. Its action was neither against the interest of

the zoo nor against the financial interest of the state . The govt. has acted bona fide in

allotting the land to the Taj group of hotels for the consideration of a five star hotel at

the vicinity of the zoo. Applying this case in the petition filed by the appellant in the

case of AndolanPandey v. Tikram Bhatia, the defendant only wanted to establish a law

college for the social empowerment of the people of prakritipura where his act was

completely a bona fide so it can be inferred that there is no violation of the Art.21 of the

constitution.

c)Whether the establishment is violation of article 14.

14 AIR 1950 SC 27 15 Supra 916 AIR 1987 2 SCC 295


It is humbly submitted that under article 14 of the Indian constitution explains about the

right to equality. “The state shall not deny any person equality before the law or the

equal protection of the laws in territory of India.” article 14 of the constitution ensures

equality among equals, is aim is to protect persons similarly placed against

discriminatory treatment. It does not however operate against rational classification.

A legislature is entitled to make reasonable classification for the purpose of legislation

and treat all in one class on an equal footing. The Supreme Court has underlined this

principle thus, ‘article 14 of the constitution ensures equality among the equals. Its aim

is to protect persons similarly placed against discriminatory treatment. Article 14 forbids

class legislation; it does not forbid reasonable classification of persons, objects and be

reasonable should fulfill the two following tests:

a)It should not be arbitrary or evasive,

b) The classification must have a rational or reasonable nexus.

In other words, there must be some rational nexus between the basis of classification of

classification and the object intended to be achieved. Therefore it is necessary to show

the selection or differentiation is unreasonable or arbitrary; that it does not rest on any

rational basis having a regard to the object which the legislature has in view in making

the law question.

In the case of k.thimmappa v. Chairman, Central Board of Director17 was held mere

differentiation does not per se amount to discrimination within the inhibition of the

equal protection clause. It is necessary to show that the selection or differentiation is

unreasonable or arbitrary, that it does not rest on any rational basis having regard to the

object which the legislature has in view by referring from the given case laws , we can

infer that the reservation demanded by the petitioner is on unreasonable grounds and

that confirming to the demand of 50% reservation would be discrimination of the rights

of the common people and also violation of article 14 of the Indian constitution. Hence

the fundamental right under Article 14 is not violated.

3. WHETHER THE ESTABLISHMENT IS VIOLATION OF ENVIRONMENT

PROTECTION ACT, 1986.

It is humbly submitted that Forest act 1927 states that from the moment a notification for

reserved forest is made, all claims or interests in, or over any land or portion of the

reserved forest are subjected to the decisions of a settlement officer. In Bhanwasi Seva

17 AIR 2001 SC 47817

MEMORIAL FOR THE RESPONDENT

Ashram v State of Uttar Pradesh,18NTPC wanted to establish a thermal power plant in an

area which was in the forest. The court examined the method by which this could be

granted with least disturbance. In Goa Foundation v Conservator of Forests, Forest

Department, Panaji,19In this case The Forest Department laid down certain criteria such

as extent of area, proximity to a larger forest area, composition of crops, and crown

density for identification.

The Wildlife law-Wildlife (Protection) Act 1972(Wildlife Act) the aim is to protect,

propagate and develop wildlife under the protected area of the forest. For such a

declaration, the Central Government and the state governments will consider adequate,

ecological, faunal, floral, geo-morphological, or zoological significance of the area in

2002 amendment to wildlife provides in Consumer Education and Research Society v

Union of India,20that there can be reduction of area of a wildlife sanctuary and that to by

1/3 of its size is justified so that to have economic development to the people providing

immense benefit. Here in this we can reduce the area and built college. Land is to be

used and not abused. By establishing a college it can by no way abuse the land as it

being no industry which is going-top reduces the quality of land with wastes.

The time has come to realize for the people’s welfare to understand Arts 38, 41, and 43

of the Constitution of India to achieve industrialization leading to development. There is

need to balance between both industrialization and industry.

3.WHETHER THE 50% RESERVATION DEMANDED IS

CONSTITUTIONALLY VALID?

It is humbly submitted that the petitioner has filed the case against the establishment of

the Vikral Vidhi Law College by the respondent Tikram Bhatia. He believes that since

the establishment of the law college is in the area which is ecologically fragile so it may

hamper the flora and fauna of the area. Further he pleads that even if the college is

established he demands that 50% reservation should be given to the citizens of

Prakritipura.

The framers of Constitution took care to safeguard the interests of minorities. With a

view, a number of provisions have been created and incorporated in the constitution of

18 AIR 1987 SC 37419 AIR 1999 Bom 177.20 AIR 1989 SC 975


India safeguarding specifically the social, economic and education interest of minority

groups. In addition, certain general constitutional provisions, Example. Fundamental

Rights, protect some of the rights of the minority groups. The policy of constitution is to

do away with caste and to strive to create a casteless society. There is thus neither any

safeguard to any one socially based on caste except to the scheduled caste, to extent, nor

is there any discrimination against anyone on the basis of caste. The constitution of India

provides for the reservation of the schedule Caste, schedule tribe, or other socially and

economically backward classes. The residents of Prakritipura are neither socially no

economically backward, so it does have no ground to demand 50% reservation.

Article 29(2) of the Indian constitution says that admission should not be denied to any

citizen into any educational institution maintained by the state, or receiving aid out of

the state funds, on the grounds only of religion, race, caste, language or any of them.

This provision guarantees the rights of the citizen as an individual irrespective of the

community to which he belongs. Thus the citizens of Prakritipura cannot have 50%

reservation for just being the citizens of the place as it would be violation of the

fundamental rights of other people.

Fixation of district wise quota on the basis of the district population to the whole state

population for admission to the state medical colleges has been held to be discriminatory

& is not justified because the object is to secure the best possible talent because it may

be the better qualified candidates from one district may be rejected while the less

qualified candidates from other district may be admitted.21

The power under Art.16 (4) must be exercised in a fair manner and within reasonable

Limits. In the case of State of Kerala v. N.M. Thomson it was held that the total

reservation cannot exceed 50% in any year.

In Jagdish Saran v Union of India22the Supreme Court emphasized that the primary

imperative of Arts 14 and 15 is equal opportunity for all across the nation to attain

excellence. The philosophy and pragmatism of excellence through universal equal

opportunity is part of Indian culture and constitutional creed. Reservation must be kept

in check by the demands of competence

21 P. Rajendram v State of Madras,AIR 1968 SC 1012, Mohan Bir Singh Chawla v Punjab University, AIR 1997 SC 78822 AIR 1980 SC 820 at 829


In case of Balaji v State of Mysore23, the court attempted to impose a constitutional limit

on the extent of preference, not on the narrower ground of reservation, but on the

broader grounds of policy. The Court spoke of adjusting the interests of the weaker

sections of society with the interests of the community as a whole. The court declared

that a formula must be evolved which would strike a reasonable balance between the

several relevant considerations

In the St. Stephen’s College V. University of Delhi24 after declaring the law as stated

above, it was held that minority institution can admit students of their own community

up to 50%.but the decision was over ruled in the T.M.A. pai foundations v. State of

Karnataka AIR 2003 SC 355, fixation of ceiling up to 50% was held bad and it was held

in article 29 and 30 apply not only to institution of higher education, but also to schools,

a ceiling of 50% would not be proper. It was held that it would be more appropriate that,

depending upon the level of institution ,whether it is primary or college or professional

or otherwise ,and on the population of and educational needs of the area in which the

institution is to be located , state properly balances the interest of all by providing for

such a percentage of students of the minority community to be admitted so as to

adequately serve the interest of the community for which the institution was established.

While clarifying the above decision, the court held in Islamic academy of educations v.

state of Karnataka25, that though the govt. has the right to regulate, the same should not

be violating art. 30 under the guise of regulation, and while fixing the percentage, apart

from local needs, the interest or needs of the community in the state should be taken into

consideration. It was further observed that the need of the “that” community in the state

would be paramount vis-à-vis the local needs. Hence the minority educational institution

has the right to admit students of its own choice. It is matter of its own free will, to

admit students of non- minority students.

In case of Pradeep Jain v. Union of India26 the court condemned as unconstitutional and

void reservation under the ‘Residence’ or ‘domicile’ as ‘wholesale reservation’ and void

of art. 14, or on the basis of ‘institutional’ preference for the students passing the

qualifying examination for admission so as to exclude all students not satisfying the

requirement regardless of merit. In Dinesh Kumar v. Motilal Nehru Medical College27.,

Held that admissions must be based on evaluation of relative merits through an entrance

23 AIR 1963 SC 64924 AIR 1992 AC 163025 AIR 2003 SC 372426 27 AIR 1985 SC 1059


exam open to all candidates through -out the country. The country has suggested that a

common all-India entrance examination be held by the institution for the purpose.

Hence we can say that 50% reservation for the citizens of prakritipura unconstitutional

and govt. has no provision to provide so.

a)Whether the establishment is state aided?

In an unaided private professional institution(both minority or majority), the court held

that scheme for reservation of seats ,is violating article 30 and 19(1)(g). It affects the

autonomy of such institutions. The court held that there is nothing wrong in having

centralized entrance test being held for one group of institution imparting same or

similar education. Admission be made from the list of successful candidates without

altering inter se merit. It would benefit twin object, first, serving students free from

exploitation and secondly , ensuring merit based admission.

In Naresh Agarwal v. Union of India28 the petitioners, who were Hindu students, were

denied admission to P.G. medical courses in Aligarh Muslim university for the session

2005-06, challenged the validity of rule, which declared the Aligarh Muslim university a

minority institution and allowed 50% reservation of Muslim students. Allahabad high

court held that Aligarh Muslim University was not a minority institution. The court

struck down the amendment made to this effect in the statute of Aligarh Muslim

university to the Muslim students. the court, followed the Ajiz Basha v. Union of India29

case wherein the supreme court has held that Aligarh university was established by an

act of parliament not by any Muslim. The court by majority held that state govt. and

universities cannot regulate the admission policies of unaided educational institution run

by linguistic and religious minorities. However, they can prescribe academic

qualifications for teachers and other staff and make some rules, regulations to maintain

academic standards. The unaided institution have the right to admit student of their

choice but subject to an objective and rational procedure of selection and compliance of

conditions if any, requiring admission of a small percentage of students belonging to

weaker sections of the society by granting them free ship and scholarship. Admission,

the court said, should be on the basis of merit and be conducted in the transparent

manner.

The court over ruled unnikrishnan v. State of Andhra Pradesh30 and in St. Stephens v.

University of Delhi31, the decision of the court whatsoever ruled that the minority

28 ( times of India Jan 6,2006)29 AIR 1968 SC 66230 1993 1 SCC 64531 1992 SCC 558


educational institutions were free to reserve 50% for the minority students. A number of

petition were filed in the court challenging the direction of setting up permanent

committee for regulating admissions and fixing fee structure in unaided minority and

non-minority institutions. It was contended that these directions were contrary to the

decision in the T.m.a. pai foundation v. State of Karnataka AIR 2003 SC 355. It was said

that the directions for setting up permanent committees for fixing quota and fee structure

seriously violate the constitutional guarantee of autonomy to minority institutions under

article 30 and to unaided minority under 19(6) of the constitution .Neither in T.M. Pai v.

state of Karnataka nor in Kerala education bill there is anything that would allow the

state to regulate or control or regulate admissions in the unaided educational institutions.

Thus, a private unaided professional institution (minority or majority) cannot be forced

to accept reservation policy of the state.

Since the Vikral Vidhi College is not a state aided college hence, the govt. has no power

of control for regulating the admission process or the capitation and fee structure.

Hence the demand for 50% reservation is completely unlawful and unreasonable.

PRAYER


In the light of the facts stated, arguments advanced and authorities cited the respondent,

humbly prays before the honorable court, to be graciously pleased to:

1. Quash the writ petition filed by the petitioner in the honorable court of

law since there is no violation of fundamental rights of the citizens of

prakritipura.

2. Give the establishment of the institution, a constitutional validity.

3. Pass any other order, which the court may deem fit in the light of justice,

equity and good conscience.

ALL OF WHICH IS HUMBLY PRAYED

Sia shruti

COUNSEL FOR THE RESPONDENT


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