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
2 MEMORIAL FOR THE RESPONDENT
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
3 MEMORIAL FOR THE RESPONDENT
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).
4 MEMORIAL FOR THE RESPONDENT
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
5 MEMORIAL FOR THE RESPONDENT
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).
6 MEMORIAL FOR THE RESPONDENT
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.
7 MEMORIAL FOR THE RESPONDENT
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.
8 MEMORIAL FOR THE RESPONDENT
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.
9 MEMORIAL FOR THE RESPONDENT
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.
10 MEMORIAL FOR THE RESPONDENT
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
11 MEMORIAL FOR THE RESPONDENT
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
12 MEMORIAL FOR THE RESPONDENT
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.
13 MEMORIAL FOR THE RESPONDENT
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
15 MEMORIAL FOR THE RESPONDENT
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
16 MEMORIAL FOR THE RESPONDENT
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
18 MEMORIAL FOR THE RESPONDENT
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
19 MEMORIAL FOR THE RESPONDENT
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
20 MEMORIAL FOR THE RESPONDENT
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
21 MEMORIAL FOR THE RESPONDENT
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
22 MEMORIAL FOR THE RESPONDENT
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
23 MEMORIAL FOR THE RESPONDENT
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