TEAM CODE: ULC 6

XXII ALL INDIA NATIONAL MOOT COURT COMPETITION 2018

BEFORE THE HON’BLE SUPREME COURT OF ARYAVARTA

WRIT PETITION (CIVIL) NOS.___

CLUBBED WITH

WRIT PETITION (CIVIL) NOS.___

IN THE MATTERS OF:

AZS MINING PVT. LTD. CO. ................................................................................. PETITIONER

WORKERS UNION ................................................................................................. PETITIONER

V.

THE UNION OF ARYAVARTA ................................................................................. RESPONDENT

THE STATE OF HODU ............................................................................................ RESPONDENT

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF ARYAVARTA

UNDER ARTICLE 32 OF THE CONSTITUTION OF ARYAVARTA

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS

COUNSEL APPEARING ON BEHALF OF THE PETITIONERS

Table of Contents i

TABLE OF CONTENTS

 Table of Contents............................................................................................................ i
 List of Abbreviations......................................................................................................ii
 Table of Authorities.......................................................................................................iv
 Statement of Jurisdiction.............................................................................................viii
 Statement of Facts......................................................................................................... ix
 Substantial Questions of Law........................................................................................xi
 Summary of Arguments...............................................................................................xii
 Arguments Advanced..................................................................................................... 1

I. That the Writ petition is Maintainable............................................................................1

A. The Company can invoke the Jurisdiction of Hon’ble Supreme Court.......................1
B. That the Company and Workers Union, both have ‘Locus standi’..............................2

C. Alternative remedy is not a bar....................................................................................4

D. The jurisdiction of the SC under Art. 32 extends to violation of the Fundamental

rights...................................................................................................................................5

II. Whether the issuance of Notification by Union of Aryavarta, Prohibiting mining

activity violates Art. 14, Art. 19 and Art. 21.......................................................................... 5

A. The Notification suffers from the vice of arbitrariness and Legal Malice..................6

B. Vice of Legal Malice................................................................................................... 8

C. The notification is violative of the Principles of Natural Justice................................ 9

D. The Notification issued by Union of Aryavarta has abridged the freedom to carry on
trade and commerce as mentioned under Article 19(1)(g)............................................... 11

E. The Notification is violative of the Principle of Sustainable Development..............12

III. Whether the act of ungranting of Land to the mining company suffers from the vice of
maliciousness and would result in loss of livelihood...........................................................15

A. Vice of Maliciousness................................................................................................16

B. Loss to Livelihood.....................................................................................................16

IV. Whether it is open for the Government to resile from its Contractual obligation.......19
 Prayer For Relief......................................................................................................... xiv

MEMORIAL ON BEHALF OF THE PETITIONERS

List of Abbreviations ii

LIST OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

¶ Paragraph

A.I.R. All India Reporter

All ER All England Reporter

Anr. Another

Art. Article

Arts. Articles

EAC Expert Appraisal Committee

ECR Environment Clearance Rule

Ed. Edition

EP Act Environment Protection Act, 1986

Govt. Government

H.C. High Court

Hon’ble Honorable

Id. Idem

MEMORIAL ON BEHALF OF THE PETITIONERS

List of Abbreviations iii

Mines and Mineral(Development and

MMDR
Regulations) Act,1957
Ministry of Environment Forests and
MoEFCC
Climate change

Ors. Others

p Page

S.C. Supreme Court

S.C.C. Supreme Court Cases

S.C.R. Supreme Court Reporter

Sec. §

Govt. Government

Supp. Supplementary

U.O.I Union of India

v. Versus

Viz. Namely

Supp. Supplementary

Id. Idem

MEMORIAL ON BEHALF OF THE PETITIONERS

Table of Authorities iv

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS
 Const. Art 19 cl 1. sub cl (g).............................................................................................................2
 Const. Art. 21........................................................................................................................................4
 Const. Art. 299 cl 1..........................................................................................................................15
 Const. Art. 32 cl 2.............................................................................................................................18
 Const. Art. 37......................................................................................................................................18
 Const. Art. 39(a)................................................................................................................................18
 Const. Art.14..................................................................................................................................6, 16
 Const. Art.299.....................................................................................................................................16
 Const.Art. 32.........................................................................................................................................4

STATUTES
 Environment (Protection) Act,1986.............................................................................................12
 Environment Clearance Regulations,2006...................................................................................7
 Environment Protection Rules, 1986.............................................................................................9

OTHER AUTHORITIES

 David Woolley QC, John Pugh-Smith, William Upton, and Richard Langham;
nd
Environmental Law (2 Ed., 2016)............................................................................................14
 Gajendragadkar P.B., Constitution of India: Its Philosophy and Basic Postulates 14,
(1970). .......................................................................................................................... 18
 H.W.R.Wade & C.F.Forsyth, Administrative Law, Oxford publication, 293 - 294
(10thed, 2009)......................................................................................................................................7
 Judicial Discretion: Coke’s King Bench reports volume 5: Rooke’s case(1598) 5 Co.
Rep. 99b.................................................................................................................................................6
th
 Pollock & Mulla, Indian Contract and the Specific Relief Acts 312 (12 ed. 2001). . 16
th
 V.G. Ramachandran, Law of Writs 26, Vol.1 (6 ed. 2006)...................................................3

INDIAN CASES
 A. Basheer v District Labour Office, [2012(3) KLT 892].....................................................17
 A.K. Kraipak v. Union of India, A.I.R 1970, SC 150...............................................................9
 Aashirwad Films v. Union of India and Ors. , (2007) 6 S.C.C. 624....................................1

MEMORIAL ON BEHALF OF THE PETITIONERS

Table of Authorities v

 Ajit K Nag v. General Manager, Indian Oil Corporation (2005), 7 SCC 764................10
 Andhra Pradesh Pollution Control Board –II v. Prof. MV Nayudu, (2001) 2 SCC 62. 6
 Bandhua Mukti Morcha v Union of India and Ors. (1997) 10 SCC 549............................4

 Bangalore Water Supply and Sewerage Board v Kantha Chandra And Ors., A.I.R
1989,. .............................................................................................................................. 3
 Bennett Coleman & Co. v. Union of India [1973] 2 SCR 757............................................12
 Calcutta Gas Co. v State of West Bengal, A.I.R 1962, SC 1044, 1047............................18
 Chintaman Rao v State of MadhyaPradesh, A.I.R 1951 SC 118........................................12
 Delhi Cloth and General Mills v. Union of India A.I.R 1983 SC 937.................................2
 East Coast Railway and Anr. v. Mahadev Appa Rao and Ors., (2010) 7 SCC 678.........7
 Emmanuel Avodeji Ajaye v. Briscoe (1964) 3 All ER 556...................................................20
 Fertilizer Corporation Kangar Union (Regd.) v Union of India, A.I.R 1981, SC 344. . 4
 Francis Coralie v Union Territory of Delhi, A.I.R 1994, SC 1844....................................17
 In Godhra Electric Co. Ltd. V State of Gujarat A.I.R 1975, SC 32...................................11
 Inder Puri General Store And Ors. v Union of India, A.I.R 1992, JK 11.........................17
 Jagdish Chand v Labor Commissioner And Ors. 1995 PLR 581.......................................17
 Jaichand v State of WB, A.I.R 1967, SC 483.............................................................................9
 K. Guruprasad Rao v. State of Karnataka, (2013) 8 SCC 418.............................................13
 Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., A.I.R 2010, SC
3745. ............................................................................................................................... 9
 M.C Mehta v. Union of India, 2002 (4) SCC 353. ...................................................... 13
 M.C. Mehta v. Kamal Nath (1997) 1 SCC 388. ........................................................... 14
 M/s. Motilal Padampat Sugar Mills Co. Ltd., vs. State of Uttar Pradesh and others
(1979) 2 SCC 409.............................................................................................................................19
 Madhu Kishore v. State of Bihar, A.I.R 1996 SC 1864.........................................................14
 Minerva Mills Ltd. v Union of India, A.I.R 1980, SC 1789................................................18
 Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors.,
(1978) 1 SCC 405. ......................................................................................................... 7
 Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Barde and Anr. (1995) 2 SCC 549
...................................................................................................................................... 14
 New Horizons Ltd. v Union of India, (1995) 1 SCC 478.....................................................18
 Olga Tellis v Bombay Municipal Corporation A.I.R 1986, SC 180..................................17

MEMORIAL ON BEHALF OF THE PETITIONERS

Table of Authorities vi

 Onkarlal Bajaj and Ors. v. Union of India and Anr. (2003) 2 SCC 673...........................10
 Punjab State Electricity Board Ltd. v. Zora Singh & Ors., (2005) 6 SCC 776.................9
 R.C. Cooper v. Union of India [1970] 3 SCR 530..................................................................12
 Ram Lal v State of Punjab, A.I.R 1966, Punj 436...................................................................15
 Reserve Bank of India v. Palai Central Bank Limited A.I.R 1961 Ker 268.......................2
 S Rangarajan v. Jagjeevan Ram & Ors. (1989) 2 SCC 574................................................12
 S.P. Gupta v Union of India, A.I.R 1982, SC 149......................................................................3
 Samata v. State of Andhra Pradesh, A.I.R1997 SC 3297......................................................14
 Shri Sachidanand Pandey v State of West Bengal, A.I.R 1987, SC 1109........................16
 State of Bihar v Majeed, A.I.R 1954, SC 786..........................................................................16
 State of Bihar v. Kalyanpur Cement Ltd. (2010) 3 SCC 274...............................................19
 State of Bombay v R.M.D Chamarbaugwalla 1957 A.I.R 699..............................................1
 State of Haryana v. Ram Kishan & Ors. 1988 SCC (3) 416................................................10
 State of Himachal Pradesh v. Ganesh Wood Products, A.I.R 1996 SC 149....................14
 T.N. Godavarman Thirumulpad v. Union of India & Ors., (2009) 6 SCC 142..............13
 Umakant v State of Bihar, A.I.R 1973, SC 964.......................................................................18
 Union of India & Ors. v Indo- Afghan Agencies, 1968 SCR (2) 366...............................20
 Vellore Citizens Welfare Forum v. Union of India A.I.R 1996 SC 2715..........................13
 Vimalben Ajitbhai Patel v Vatshaben Ahok Bhai Patel & Ors. A.I.R 2008, SC 2675.
...................................................................................................................................... 17

FOREIGN CASES

 Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948), 1 KB

223. ................................................................................................................................. 7
 Luckin v Hamlyn, (1869) 21 LT 366 ...........................................................................17
 R v Paddington, (1966) 1 QB 380.................................................................................. 3
BOOKS REFERRED

 A. Sabitha, Public Health: Enforcement and Law (1st ed. 2008).

 A. Usha, Environmental Law (1st ed. 2007).
 A. Usha, Environmental Pollution: International Perspectives (1st ed. 2008).
 ArunaVenkat, Environmental Law and Policy (1st ed. 2011).
 Arvind P. Datar, Commentary on the Constitution of India (2d ed. 2007).

MEMORIAL ON BEHALF OF THE PETITIONERS

Table of Authorities vii

 Colette Daiute, Human Development & Political Violence (1st ed. 2010).
 Darren J O’Byrne, Human Rights: An Introduction(1st ed. 2003).
 David Hughes, Environmental Law (1st ed. 1986).
 Dr. A. Krishna Kumari, Environment and Sustainable Development (1st ed. 2007).
 Dr. A Krishna Kumari, Environmental Jurisprudence (1st ed. 2007).
 Dr. L.M. Singvi, Jagadish Swarup Constitution of India (3d ed. 2013).
 Dr. L.M. Singhvi, Fundamental Rights and Constitutional amendments (1st ed. 1971).
 Durga Das Basu, Commentary on the Constitution of India (8th ed. 2007).
 Durga Das Basu, Human Rights in Constitutional Law (3rd ed. 2008).
TREATIES AND CONVENTIONS
 Universal Declaration of Human Rights (UN), 1948
 American Declaration of Rights and Duties of Man (OAS), 1948
 Declaration on the Right to Development (UN), 1986
 Declaration on Human Duties and Responsibilities (UNESCO), 1998
 Universal Declaration on Cultural Diversity (UNESCO), 2001
 Declaration on the Rights of Indigenous Peoples (UN), 2007
 Convention for the protection of the World Cultural and National Heritage, 1972
WEBSITES REFERRED
 Manupatra Online Resources, http://www.manupatra.com.
 Lexis Nexis Academica, http://www.lexisnexis.com/academica.
 Lexis Nexis Legal, http://www.lexisnexis.com/in/legal.
 SCC Online, http://www.scconline.co.in.
 Oxford Dictionary, http://www.oxforddictionaries.com.

MEMORIAL ON BEHALF OF THE PETITIONERS

Statement of Jurisdiction viii

STATEMENT OF JURISDICTION

It is most respectfully submitted that the Petitioners have approached this Hon’ble Supreme
1
Court under Article 32 of the Constitution of Aryavarta for the violation of Fundamental
Rights guaranteed under the Constitution of Aryavarta.

The Petitioners most humbly and respectfully submit before the jurisdiction of the present
court and accepts the power of the Hon’ble Court and authority to preside over the present
case.

1 Article 32 in The Constitution Of India, 1950-

32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred
by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by
law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause ( 2 ).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.

MEMORIAL ON BEHALF OF THE PETITIONERS

Statement of facts ix

STATEMENT OF FACTS

~Introduction to Aryavarta and Hodu~

Aryavarta is a developing country with a rich cultural heritage and a union of 29 states. One
of the States, Hodu, referred to as a historical state because of its rich history, cultural and
natural resources, also has many marvelous monuments. Pumpa Nagar, which is the oldest
city in Hodu, contains a reservoir of extremely rare granite which goes by the name of
Magma Black.
~The Contract for mining Magma Black~
AZS MINING PVT. LTD. CO, a private mining company is proficient in using hi-tech
mining technology, imported from a foreign nation, to procure resources with the object of
earning profits. Hodu called for bids to extract the rare granite through a tender, but the
process of extraction and procuring was highly complex and involved intricacies, the Mining
Company placed its bid and was awarded the tender, upon entering into a Joint Venture with a
MNC, which promised to contribute 51% of the investment for Joint Venture. The Contract to
extract the granite was for a period of 15 years, under an exclusive lease for 50 acres of land.
~The Monument in the Vicinity~
th
An Ancient Monument constructed in the 14 century A.D. was in the proximity to the place
where the mining activity had to be carried out. The Monument had a deep cultural relevance
to the people and was extremely artistic, with alluring architecture. It was a source of
economy to the state and was visited almost by a thousand people a day.
~Employment under the Mining Company~
A large amount of man-power was needed for the quarrying/mining purposes because of the
use of the high-geared and high-calibered explosives. A number of villages lay in the vicinity
of the mining area with a sizeable population residing in these villages. 200 of these people
drew their employment from this quarrying/mining activity.
~Declaration of Eco-Sensitive Zone~
A part of the region where the mining activity had to be carried out was declared as an Eco-
Sensitive Zone by the Ministry of Environment, Forest and Climate Change for the reason
that the terrain had presence of a few endangered species of birds and animals.
~Petition filed by the Workers Union~
Only 20 acres of land was provided to the Mining Company as opposed to the 50 acres as
mentioned in the contract that was awarded to the Company. The remaining 30 acres were

MEMORIAL ON BEHALF OF THE PETITIONERS

Statement of facts x

left in the wind as it was not handed to them. Due to this, the MNC, in anticipation of the fact
they would not be able retrieve the amount invested, threatened to withdraw from the J.V.,
putting the livelihood of the 200 workers at risk. These workers formed a Union and filed a
petition under Article 226 of the Constitution of Aryavarta, seeking the Court to direct the
State Government to hand over the remaining 30 acres of land for the mining purposes.
~Research Findings by the International NGO~
A few Foreign Nationals of the International Environment and Ancient Monument
Preservation Organization. They conducted a research at the site of the Monument. It was
found that the Monument’s foundation was deteriorating, even though the site of the
quarrying activity was reasonably far away from it.
~Steps taken by the Domestic NGO~
MCM Heritage Protection Organization, the most active NGO of Aryavarta, consulted a
renowned Geologist Mr. X, when they came to know about the findings of the International
NGO regarding the Monument. Mr. X confirmed the research reports related to the
deterioration.
~Issuance of the Notification~
Since no steps were taken by the State Government, the issue was brought before the Union
Government. The Union Government passed a notification order, after conducting sufficient
enquiry on its own, and taking into consideration the heritage of the place, health of the
people and deteriorating income from tourism due to excess pollution. The Notification
pertained to put into effect immediate halt to all the mining/quarrying activities around
Pumpa Nagar.
~Petition filed by the Mining Company~
Due to the Notification, the Mining Company had to stop all the mining activity within 5
years of being awarded the Contract and setting up the J.V. The Contract was of the tenure of
15 years. Aggrieved by the action of the Union Government, the Mining Company filed a
writ petition before the Supreme Court, questioning the Notification, violation of their
fundamental rights and being unable to recover the amount invested, loss of profits and the
use of high-end technology for the purpose, due to the Notification.
~Clubbing of the Petitions~
The Mining Company asked for the clubbing of the present Petition, with the earlier petition
filed by the Workers Union pending before the High Court of Hodu. The Apex Court
permitted the clubbing of both the matters and posted it for the final arguments on
25/02/2012.

MEMORIAL ON BEHALF OF THE PETITIONERS

Issues raised xi

SUBSTANTIAL QUESTIONS OF LAW

WHETHER THE WRIT PETITION FILED UNDER ARTICLE 32 OF THE

CONSTITUTION OF ARYAVARTA IS MAINTAINABLE.

II

WHETHER THE ISSUANCE OF NOTIFICATION BY UNION OF ARYAVARTA,

PROHIBITING MINING ACTIVITY VIOLATES ART. 14, ART. 19 AND ART. 21.

III

WHETHER THE ACT OF UNGRANTING OF LAND TO THE MINING COMPANY WOULD RESULT IN
LOSS OF LIVELIHOOD TO THE WORKERS UNDER ART. 21 OF THE CONSTITUTION AND HENCE
BAD LAW.

IV

WHETHER IT IS OPEN FOR THE STATE GOVERNMENT TO RESILE FROM ITS

CONTRACTUAL OBLIGATION.

MEMORIAL ON BEHALF OF THE PETITIONERS

Summary of Arguments xii

SUMMARY OF ARGUMENTS

Issue 1: WHETHER THE WRIT PETITION FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF
ARYAVARTA IS MAINTAINABLE.

It is submitted that the Mining Company has invoked the jurisdiction of the Hon’ble Court
under Article 32. It is contended that the Company has approached the Court in the capacity
of a ‘citizen’ as the infringement of the fundamental right of the Company leads to the
violation of the rights of its shareholders since their rights are interlinked and co-extensive.
The denial of right to one leads to an automatic denial to the other. In this instance, the
impugned notification has lead to the violation of the freedom of trade enshrined under
Article 19(1)(g) by putting a halt to the Mining/Quarrying activities. Furthermore, the
Workers Union and the Mining Company have ‘locus standi’ or legal standing in the Hon’ble
Court as their rights have infringed and they seek relief from the Court as ‘aggrieved’ parties.
Any form of alternative remedy available to the petitioners does not bar them from
approaching the Court under Article 32.

Issue 2: WHETHER THE ISSUANCE OF NOTIFICATION BY UNION OF ARYAVARTA, PROHIBITING

MINING ACTIVITY VIOLATES ART. 14, ART. 19 AND ART. 21.

It is contended that the impugned notification is unreasonable and suffers from arbitrariness
and is violative of Article 14 and the rule of law as the environmental clearance to carry out
the mining was given by the Central Government, the procedure for which is laid down in
Environment Clearance Rules. Moreover, the impugned notification also violates the
Principles of Natural Justice as it does not accord any opportunity to the parties to be heard
by virtue of filing any objections or complaints. The authority who granted the clearance for
mining now seeks to halt all the activities through the issuance of the notification citing the
interest of the public as its basis, which is against the law. The notification also abridges the
freedom of trade of the Mining Company. Furthermore, it is contended that the path of
sustainable development be pursued by which there is no degradation of the environment
complemented with steady industrial development.

Issue 3: WHETHER THE ACT OF UNGRANTING OF LAND TO THE MINING COMPANY WOULD
RESULT IN LOSS OF LIVELIHOOD TO THE WORKERS UNDER ART. 21 OF THE CONSTITUTION
AND HENCE BAD LAW.

It is further submitted that the remaining 30 acres of land which was not granted by the State
of Hodu infringes upon the right to livelihood of the workers as the MNC in agreement with

MEMORIAL ON BEHALF OF THE PETITIONERS

Summary of Arguments xiii

the Mining Company threatened its departure, afraid that it would not be able recuperate its
investments, thus, threatening the livelihood of the workers. The right to livelihood has been
held to be an essential component of Article 21 and it has been held by the Hon’ble Court in a
catena of cases, to be a part of it. Furthermore, a government contract was formed under
Article 299, by which the State is under an obligation to grant the remaining piece of land to
the Company. The Directive Principles of State Policy also points to right to livelihood as an
essential function by the virtue of Article 39(a) and it is contended that the State must
maintain harmony between the right to livelihood and the right to environment. Therefore, it
is humbly prayed that a writ of mandamus be issued to command the State to release the
remaining land and hand it to the Mining Company. Furthermore, for declaration of an Eco-
Sensitive Zone, the State Government sends a recommendation to the MoEFCC which
declares it as such. This implies that the State of Hodu must have a sent a requisite
recommendation for the same which implies ill-will on the part of the State and an act done
without lawful excuse.

Issue 4: WHETHER IT IS OPEN FOR THE STATE GOVERNMENT TO RESILE FROM ITS
CONTRACTUAL OBLIGATION.

It is contended that the State of Hodu is bound by the Doctrine of Promissory Estoppel upon
entering into a contract with the Mining Company under the requirements laid down under
Article 299(1). It is only in the case that the State which had made the promise is either acting
as per any requirement of a particular statute or the deviation from the contractual obligation
is in the interest of the general public, that the State can justify its non-compliance to the
contract. In the instant case, none of the two aforementioned exceptions are in force and the
State of Hodu’s act is arbitrary and unreasonable in nature. Promissory Estoppel applies
because the promisee changed its position upon the representation of the promisor i.e. the
State, when it started mining in the region provided as per the contract. Hence, the
Government is liable to grant the remaining 30 acres of land.

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 1

ARGUMENTS ADVANCED

I. THAT THE WRIT PETITION FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF

ARYAVARTA IS MAINTAINABLE.

The present petition is maintainable under Article 32 of the Constitution as it is a writ petition
2
for challenging the constitutional validity of the notification issued by Union of Aryavarta as
well as the validity of the not granting of Land to the mining company. The instant writ
before the Hon’ble Court is maintainable, as the parties of the case have locus standi in the
present case because of the reason that the fundamental rights of the Petitioners have been
violated by the acts of the Union and the State Government. Therefore Present Writ is
maintainable.

A. The Company can invoke the Jurisdiction of Hon’ble Supreme Court under
Article 32 for the violation of the Fundamental rights of its Shareholders.

Companies are broadly classified into Public and Private Companies; the latter is taken here
to be proved that it comes under the definition of a ‘Citizen’. A private company is a very
suitable device for carrying on the business of family and small scale concerns, as the
3
minimum number of members required to form a private company is only two. The instant
question here is whether a company could claim remedy against violation of fundamental
rights, provided exclusively to the citizens of Aryavarta.

There have been variations on the status of companies from a constitutional point of
4
view over the years. The first stance was taken in the R.M.D Chamarbaugwalla Case ,
where the Court observed that in the event that the nature of rights in question, cannot be
confined to natural persons then the corporation must be entitled to those rights as much as an
individual citizen. Since, a company is regarded as a juristic person and is quite different from
a natural person; the Court took cognizance of that and ruled in favor of rights being
conferred on corporations.

Since, the citizens of Aryavarta have been conferred with the right to form
associations and unions, then these corporations have been formed by the very same citizens,
therefore, the denial of rights to the corporation would tantamount to denial of rights to these

2 Aashirwad Films v. Union of India and Ors. , (2007) 6 S.C.C. 624.

3 Ibid.
4 State of Bombay v R.M.D Chamarbaugwalla 1957 A.I.R 699.

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 2

very aggregate of citizens that constitute this body corporate. It virtually amounts to denial of
those fundamental rights to the citizens who (though, of course, different person) really
5
constitute those bodies.

Where the question arises as to the corporation in relation to its subjects i.e., the
shareholders, the rights of the company as well as its shareholders have been taken in a
unified context and are not in any way severable. Since, a private company does not issue its
shares to the general public and these shares are owned by the directors and the members of
the corporation, there is a thread which links the rights of the members with that of the
corporation to which they belong as they are the very entities who formed that corporation.
There have been instances, for example, taking into consideration Newsprint Control Laws,
the Directors, editors and Shareholders, all expressed and exercised their Freedom of Speech
and Expression through the Newspaper that they deal in; hence, the denial of relief to this
very corporation will impair the rights of the Shareholders as well. Therefore, the Newsprint
6
Laws were struck down.

If a law pertaining to a particular subject is in a ‘nebulous state’, but the rights of the
shareholders and the company is co-extensive then the denial of one would lead to the denial
of the other. Hence, Petitioner’s fundamental right was not denied even though the company
7
was the co-petitioner.

With the issuance of the notification by the Union, putting an immediate halt to the
mining/quarrying activity, it has lead to the violation of right to trade, not only of the
8
corporation but its members too, as the right to freedom to practice any trade and profession
was infringed in the present case. Moreover, the remaining land which was not handed to the
Company has lead to gross violation of right to livelihood of the Workers employed by the
Mining Company.

B. That the Company and Workers Union, both have ‘Locus standi’ for filing the writ
Petition.

5 Reserve Bank of India v. Palai Central Bank Limited A.I.R 1961 Ker 268.
6 Bennett Coleman & Company & Others v. Union of India and Others 1970 A.I.R 106.
7 Delhi Cloth and General Mills v. Union of India A.I.R 1983 SC 937.
8 Const. Art 19 cl 1. sub cl (g).

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 3

The Instant writ petition before the Hon’ble Court is maintainable, as the parties of the case
have locus standi because of the reason that the fundamental rights of the Petitioners have
been violated by the acts of the Union and the State Government.

As a general rule, a person has locus standi in a given situation if it is possible for
such a person to show that the issue at hand causes harm and that an action undertaken by the
9
court could redress the harm. It was observed by Lord Denning in R v Paddington that the
court would not listen, of course, to a mere busybody who was interfering in things which did
not concern him. But it will listen to anyone whose interests are affected by what has been
done. In other terms, the term ‘locus standi’ can be understood as legal capacity to challenge
10
legislation, an order or a decision. The principle of locus standi presupposes the presence of
a person or body of persons who suffered a legal injury.

The essential or the condition to have ‘standing’ in a court of law, is that the party
who is seeking relief from the court, must demonstrate on its part that it has suffered some
harm. The matter of ‘standing’ lies within the realm of the courts. The traditional rule of
standing has been that a petition for a legal remedy can ordinarily be moved only be an
‘aggrieved person.’ This principle is based on theory that remedies and rights are correlative
11
and therefore, only a person whose own right is in jeopardy is entitled to seek a remedy.
The concept of locus standi is being liberalized and the scope of the concept is being
12
expanded day to day. Here, the petitioners approach the Court in the capacity of ‘aggrieved
persons’ as they have suffered legal injury at the hands of the Government.

Since the Instant writ petition has been clubbed with an earlier petition by the
Workers Union filed before the High Court of Hodu, both of the parties are aggrieved and are
harmed by the actions of the Central and the State Government. The Mining Company’s right
to freedom of trade has been violated by the Notification issued by the Government. As far as
the Workers Union is concerned, the State Government’s non-compliance with the contract
for 50 acres of land, of which only 20 acres have been granted, has led to infringement of the
13
right to livelihood under Article 21 . The Workers Union is a registered Union and even if it

9 R v Paddington, (1966) 1 QB 380.

10 V.G. Ramachandran, Law of Writs 26, Vol.1 (6th ed. 2006) .
11 S.P. Gupta v Union of India, A.I.R 1982, SC 149.
12 Bangalore Water Supply and Sewerage Board v Kantha Chandra And Ors., A.I.R 1989.
13 Const. Art. 21.

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 4

were not registered, the Hon’ble Court has entertained the petition of an unregistered
14
association in Bandhua Mukti Morcha v. Union of India & Ors.

The workers have now been recognized to have locus standi to question certain
15
actions which may affect the working of the company in which they are employed. In
16
Fertilizer Corporation Kamgar Union (Regd.) v. Union of India , the Court dismissed the
petition, yet it upheld that the labour union had locus standi to maintain a petition challenging
the sale of old plant and machinery by the management. In A.B.S.K. Sangh (Railway) v.
17
Union of India , the Court iterated, ‘the petitioners belong to the recognized union or not,
the fact remains that a large body of persons with a common grievance exists and they
approach this Court under Article 32.’

Hence, the Petitioners have standing in the Hon’ble Court as they have suffered harm
and they have the right to seek remedy from the Hon’ble Court as their fundamental rights
have been violated. They approach this Court under Article 32, which is itself a fundamental
right guaranteed by the Constitution of Aryavarta.

C. Alternative remedy is not a bar.

Where there is well-founded allegation that a fundamental right has been infringed,
18
alternative remedy is no bar for entertaining the writ petition and granting relief. The mere
existence of an adequate alternative legal remedy cannot per se be a good and sufficient
19
ground for throwing out a petition under Art. 32 if the existence of a fundamental right and
the breach, actual or threatened, of such right and is alleged and prima facie established on
20
the petition .

In spite of availability of the alternative remedy, the Court may exercise its writ
jurisdiction in the petitions where the petitioner seeks enforcement of any of the fundamental
21
rights . Thus, the petitioner humbly submits that instant writ petition is maintainable as the
existence of any alternative remedy is not a bar.

14 Bandhua Mukti Morcha v Union of India and Ors. (1997) 10 SCC 549.
15 Supra Note 1.
16 Fertilizer Corporation Kangar Union (Regd.) v Union of India, A.I.R 1981, SC 344.
17 A.B.S.K Sangh (Railway) v Union of India, A.I.R 1981, SC 298.
18 State of Bombay v. United motors Ltd. A.I.R 1953, SC 252.
19 Const.Art. 32.
20 K.K. Kouchunni v. State of Madras, A.I.R 1959, SC 725.
21 HarbansalSahnia v. Indian Oil Corporation Ltd. A.I.R 2003, SC 2120.

MEMORIAL ON BEHALF OF THE PETITIONERS

 Arguments Advanced 5

D. The jurisdiction of the SC under Art. 32 extends to violation of the Fundamental

rights.

The Jurisdiction of the Supreme Court extends to the present matter, as the rights of the
Mining Company as well as the rights of the Workers Union, which are of a fundamental
nature. It has been listed below:

i. Violation of the Rights of the Company

The Notification issued by Government of Aryavarta has violated various rights of the
Company which are as follows:

22
 Article 14: The fundamental right to equality enshrined under Art. 14 of the
Constitution have been violated.
 Article 19: To practice any profession or to carry on any occupation, trade or
23
business enshrined under Art. 19.
 Article 21: Right to Economic Development which is an integral part of Sustainable
24
Development. Sustainable development is a part of Right to life enshrined under
Art. 21.

ii. Violation of Rights of the Workers Union

 Article 21: The State Government did not grant the remaining 30 acres of land as per
the contract which has shaken the MNC who refused to remain the in the J.V. Thereby
threatening her departure and jeopardizing the right to livelihood of the Workers
Union.

 Promissory Estoppel: The Government retracted on its promise made under Article
299, which is a Government Contract. It was unreasonable and arbitrary and devoid
any powers provided by any statute and not even in the public interest.

II. WHETHER THE ISSUANCE OF NOTIFICATION BY UNION OF ARYAVARTA, PROHIBITING

MINING ACTIVITY VIOLATES ART. 14, ART. 19 AND ART. 21.

It is humbly submitted before the Hon’ble bench that the notification by the Union of
Aryavarta is constitutionally invalid as it manifests arbitrariness and is violative of the

22 Maneka Gandhi v. Union of India, A.I.R 1978, SC 597.

23 Sodansingh v. New Delhi Municipal Committee, A.I.R 1989, SC 1988.
24 Madhu Kishore v. State of Bihar, A.I.R 1996, SC1864.

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 6

constitution. Notification is an instrument by which some power conferred by statute is

25
brought to public notice. A Notification issued under a statutory provision is a ‘law’ under
26
Art.13(3) of the Constitution, will be struck down if violates Part III of the Constitution and
consequently every notification which ‘intra vires’ has the force of law and has to be read
27
along with the statute.

A. The Notification suffers from the vice of arbitrariness and Legal Malice,
hence violative of Art. 14.

The petitioner contends that the Notification of the Government is arbitrary and unreasonable,
hence violative of the right to equality enshrined under Art. 14 and the rule of law. The
Petitioners humbly submit that they had submitted exhaustive details about the working of the
mine, the impact on the environment and it was only after following the stringent prescribed
28
procedure that the environmental clearance was granted to the Petitioners after holding the
29
screening, scrutiny, public hearing and appraisals. Thus, the Petitioner has all the requisite
licenses, permits and No Objection Certificates for carrying out the mining activity in the said
area. The Petitioner has employed about 200 persons, directly and indirectly, and such
persons and their families are dependent upon the mining operation for their livelihood.

30
The petitioner submits that the jurisdiction of Art 14 extends to the prevention of arbitrary
31
and unreasonable actions of the State, which are “antithetical” to the rule of equality. The
principles of Indian Law have thrown open the gates of Executive action to Judicial Scrutiny.

 The Rule of Law and the Rule of Reason or Reasonableness

The petitioner submits that the term Rule of Law, derived from the French term, la
principe de legalite, is the foundation of the concept of a State that revolves around the law,
32 33
and not around men. As Lord Coke observed in Rooke’s Case , acts which under the guise
of discretion can only be described as a colourable exercise of power. The essence of

25 Union of India v. Maharaja Kishangarh Mills Ltd., A.I.R. 1961 S.C. 683 (India).
26 Indian Express Newspapers v. Union of India, (1985) 1 S.C.C. 641 (India).
27 Kailash Nath v. State of UP, A.I.R. 1957 S.C. 790 (India).
28 Clarification Point No. 14.
29 § 7, Environment Clearance Regulation, 2006, Acts of Parliament, 2006.
30 Const. Art.14.
31 Andhra Pradesh Pollution Control Board –II v. Prof. MV Nayudu, (2001) 2 SCC 62.
32 I.P.MASSEY, ADMINISTRATIVE LAW, EASTERN BOOK COMPANY 25 (7thed, 2008).
33 Judicial Discretion: Coke’s King Bench reports volume 5: Rooke’s case(1598) 5 Co. Rep. 99b.

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 7

judgments with development of the Common Law is that exercise of discretion should be
34
coupled with equity and grounded in sound reason. The Petitioner submits that the word
reasonableness has been used in a biased manner which is contradicting the Rule of Reason.

 The Wednesbury Test of Unreasonableness

An unlawful decision is one to which no reasonable authority could have come. This is the
35
underlying principle of the famous Wednesbury case wherein Lord Greene MR expounded
the duty of an authority to consider facts that they are bound to consider.

 Reasonableness is necessary while exercising statutory powers

For the proposition that for a valid order there has to be the application of mind by the
authority, and in the absence of such application of mind by the authority, the order is
36
arbitrary and is liable to be quashed.

When a statutory functionary makes an order based on certain grounds, its validity
must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in
37
the shape of affidavit or otherwise.

38
As per the Rule 2 of ECR , 2006: the project or activities shall require prior
environmental clearance from the concerned regulatory authority.

39
As per the Rule 4(ii) of ECR , 2006: All projects or activities included as category
“A” shall require prior environmental clearance from the central government in the MoEF
on the recommendation of an EAC to be constituted by the central government for the
purpose of this notification. (The project which has been stopped in the present matter also
comes under category “A”, as per the general condition mentioned under ECR, 2006, Any
Project or activity specified in category “B” will be treated as category “A”, if located whole
in part or in Part of within 10km from the boundary of a notified Eco- Sensitive Area.)

34 H.W.R.Wade & C.F.Forsyth, Administrative Law, Oxford publication, 293 - 294 (10thed, 2009).
35 Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948), 1 KB 223.
36 East Coast Railway and Anr. v. Mahadev Appa Rao and Ors., (2010) 7 SCC 678.
37 Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors., (1978) 1 SCC 405.
38 Environment Clearance Regulations,2006, Acts of Parliament, 2006.
39 Ibid.

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 8

40
Rule 7 of ECR , 2006 comprises of four stages viz. Screening, Scoping, Public
Consultation and appraisal. These are the rigorous processes through which a project has to
undergo.

Environmental Impact Assessment is one of the integral parts of this clearance which
analyses all the potential threat to the environment. After going through such a rigorous test
the environment clearance is given to a project. In case of mining, this prior environment
41
clearance last for 30 years.

The environment clearance for the mining of granite to AZS Mining Pvt. Ltd. Co. was duly
given by MoEFCC as mentioned in clarification.

Thus, the Notification dated 09/11/2017 issued by Union of Aryavarta to immediately

stop all mining activities on the various grounds is arbitrary and irrational because the same
authority has given environment clearance for the mining activities to the company after
following the due process. The EIA must have analysed all the potential threats to
environment and keeping that all those points in mind then only clearance was given. Now
suddenly after five years issuing a Notification which prohibits all the mining activities on the
grounds which have been previously worked upon, suffers from the vice of arbitrariness
which is antithetical to Art. 14. The Company has employed a substantial amount of resources
which includes human and physical resources and now issuing a Notification which put the
rights of shareholder and labourers on stake is arbitrary and matter of such importance cannot
be implemented negligently as has been done by government in the present matter. Hence
violates Art.14.

B. Vice of Legal Malice

The State is under obligation to act fairly without ill will or malice- in fact or in law. "Legal
malice" or "malice in law" means something done without lawful excuse. It is an act done
wrongfully and wilfully without reasonable or probable cause, and not necessarily an act
done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where
malice is attributed to the State, it can never be a case of personal ill- will or spite on the part
of the State. It is an act which is taken with an oblique or indirect object. It means exercise of

40 Ibid.
41 Rule 9 of Environment Clearance Regulation, 2006, Acts of Parliament, 2006.

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 9

42
statutory power for "purposes foreign to those for which it is in law intended." It means
conscious violation of the law to the prejudice of another, a depraved inclination on the part
of the authority to disregard the rights of others, which intent is manifested by its injurious
43 44
acts. Passing an order for an unauthorized purpose constitutes malice in law. Malice in
law means something done in law without lawful excuse. It presupposes an act done wrongly
without sufficient cause and reason.

C. The notification issued by government of Aryavarta is violative of the Principles

of Natural Justice.

45
Rule 5(3)(c) allows individuals to file objection against the imposition of Prohibition or
restriction to the central government. The Notification issued by the government of
Aryavarta did not give any such opportunity to the Individual or to the Company to file any
objection against the imposition of Prohibition and it is violative of the Principles of Natural
justice.

The entire gamut of the submissions made on behalf of the Petitioner is with regard to
the non-adherence of the Principles of Natural justice. Thus, it is humbly requested before
Hon’ble Court to examine the basic principles of natural justice.

"The phrase, Natural Justice is not capable of a static and precise definition. It cannot
be imprisoned in the straight-jacket of a cast-iron formula. Two fundamental maxims of
Natural Justice have now become deeply and indelibly ingrained in the common
consciousness of mankind, as pre-eminently necessary to ensure that the law is applied
impartially, objectively and fairly. Described in the form of Latin tags of these twin principles
46
are: (i) audi alteram partem and, (ii) nemo judex in re sua .

It must be noticed that the aim of rules of Natural Justice is to secure justice, or to put
47
it negatively, to prevent miscarriage of justice. Flexibility in the process of Natural Justice
is an inbuilt feature of this doctrine. Absolute rigidity may not further the cause of justice and
48
therefore adoption of flexibility is important for applying these principles.

42 Jaichand v State of WB, A.I.R 1967, SC 483.

43 Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., A.I.R 2010, SC 3745.
44 Punjab State Electricity Board Ltd. v. Zora Singh & Ors., (2005) 6 SCC 776.
45 Environment Protection Rules, 1986, Acts of Parliament, 1986.
46 Swadeshi Cotton Mills v. Union of India (1981) 1 SCC 664.
47 A.K. Kraipak v. Union of India, A.I.R 1970, SC 150.
48 Ajit K Nag v. General Manager, Indian Oil Corporation (2005), 7 SCC 764.

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 10

The Sections must be interpreted to imply that a person who may be affected by such
a decision should be afforded an opportunity to prove that the proposed step would not
advance the interest of Mines and Mineral development. Not to do so will be violative of the
49
Principles of Natural Justice. Breach of Principles of Natural Justice was in itself treated as
50
prejudice and that no other defect/prejudice needs to be proved.

The role model for governance and decision taken thereof should manifest equity, fair
play and justice. The cardinal principle of governance in a civilized society based on rule of
law not only has to be based on transparency but must create an impression that the decision
making was motivated on the consideration of probity. The Government has to rise above the
nexus of vested interests and nepotism and eschew window dressing. The act of governance
has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious
actions. Therefore, the principle of governance has to be tested on the touchstone of justice,
equity and fair play and if the decision is not based on justice, equity and fair play and has
taken into consideration other matters, though on the face of it, the decision may look
legitimate but as a matter of fact, the reasons are not based on values but to achieve popular
51
accolade, that decision cannot be allowed to operate.

The Principle of audi alteram partem is one of the basic concepts of the Principles of
Natural Justice. The omnipotent nature inherent in the doctrine is that no one should be
condemned unheard. In the field of administrative action, this principle has been applied to
52
ensure fair play and justice to affected persons. The expression audi alteram partem simply
implies that a person must be given an opportunity to defend himself. This principle is a sine
qua non of every civilized society. Corollary deduced from this rule is qui aliquid statuerit,
parte inaudita altera aeuquum licet dixerit, haud aequum facerit i.e. he who shall decide
anything without the other side having been heard although he may have said what is right
will not have done what is right. The rule of fair hearing is a code of procedure, and hence
covers every stage through which an administrative adjudication passes, starting from notice
to final determination.

Thus it is humbly submitted before Hon’ble court that the order violates the Principles of
Natural Justice viz. Audi Alteram Partem, as it has not given the opportunity to the affected

49 State of Haryana v. Ram Kishan & Ors. 1988 SCC (3) 416.
50 Ridge v. Burbin, 1964 AC 40.
51 Onkarlal Bajaj and Ors. v. Union of India and Anr. (2003) 2 SCC 673.
52 Keshav Mills Co. Ltd & Anr. v Union of India And Ors. 1973 A.I.R 389.

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 11

Company to file any objection against the Notification issued by the Government of
Aryavarta which is duly mentioned under Environment Protection Rules, 1986.

D. The Notification issued by Union of Aryavarta has abridged the freedom to

carry on trade and commerce as mentioned under Article 19(1)(g).

It is humbly submitted before the Hon’ble court that the notification of the Government
clearly impinges upon the right to trading activities of the Mining Company and the Mining
lease was granted to the Company by the State of Hodu. It has impacted upon the
Fundamental right of the company mentioned under Art. 19(1)(g).

The Supreme Court has held that writ petition filed by a company, complaining denial
of fundamental rights guaranteed under Article 19 is maintainable. In the matter of
fundamental freedom guaranteed by Article 19, Desai, J held, the right of a shareholder and
the company which the shareholders have formed are coextensive and the denial to one of the
53
fundamental freedom would be denial to the other.

The Court has moved a step further and evolved the concept of Corporate Personhood; it
has tried to settle the dispute by mentioning that a company is not a citizen under Article 19 but a
shareholder, a managing director of a company had a right to carry on business through agency of
company and if that right was taken away or abridged he was not disabled from challenging the
54
validity of the provisions of any Act, which affected his right.

The Court has further elaborated the significance of the shareholders and expressed
that these rights are entitled to the protection provided by Article 19. The Bank
Nationalisation case has established the view that the fundamental rights of shareholders as
citizens are not lost when they associate to form a company. When their fundamental rights as
shareholders are impaired by State action, their rights as shareholders are protected. The
reason is that the shareholders' rights are equally and necessarily affected if the rights of the
55
company are affected.

Any order passed by the State which violates the rights of shareholders, the
jurisdiction of the Court to grant relief cannot be denied, when by State action the rights of an
individual shareholder is impaired, if that action impairs the rights of the Company as well.

53 D.C. & G.M. V Union of India A.I.R 1983, SC 937.

54
In Godhra Electric Co. Ltd. V State of Gujarat A.I.R 1975, SC 32.
55 Bennett Coleman & Co. v. Union of India [1973] 2 SCR 757.

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 12

There is an informal test to determine whether a shareholder's right is impaired or not; it is

essentially qualitative: if the State action impairs the right of the shareholders as well as to
the Company, the Court will not, concentrating merely upon the technical operation of the
56
action deny itself jurisdiction to grant relief.

57
In the Chintaman Rao Case, the Supreme Court laid down the test for a
“Reasonable restriction”, the phrase "reasonable restriction" connotes that the limitation
imposed on a person in enjoyment of the right should not be arbitrary or of an excessive
nature, beyond what is required in the interests of the public. The word "reasonable" implies
intelligent care and deliberation, that is, the choice of a course which reason dictates.

Government which is to implement the Statutory Rules has failed to do the same and
it is not even the case that the steps have been taken in accordance with the Rules. No object
could be achieved, and in such circumstances it is certainly not open by exercising the power
58
under § 5 of the EP Act to close down all mining activities. This affects the fundamental
freedom guaranteed under Article 19(1) (g) of the Constitution of Aryavarta and the total ban
59
will not amount to reasonable restriction.

The issue with regards to the invocation of Art. 19(1)(g) is well settled; in order to
secure the rights of its share holders, company can invoke the aforementioned article and
being not a citizen is not a bar.

It is humbly submitted before the Hon’ble court that the notification issued by the
Government of Aryavarta has put unreasonable restriction on the freedom to carry on trade
and commerce. The Mining Company has been awarded the mining lease to extract granite
but now they are deprived of the activity due to the issuance of the notification. It clearly
indicates that the government has not applied intelligent care and deliberation before issuing
it. Hence it violates Art. 19(1)(g).

E. The Notification is violative of the Principle of Sustainable Development, which

is an integral part of Right to Life and Hence it Violates Art.21.

56 R.C. Cooper v. Union of India [1970] 3 SCR 530.

57 Chintaman Rao v State of MadhyaPradesh, A.I.R 1951 SC 118.
58 Environment (Protection) Act,1986, No. 29, Acts of Parliament, 2006.
59 S Rangarajan v. Jagjeevan Ram & Ors. (1989) 2 SCC 574.

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 13

It is humbly submitted before Hon’ble court that the notification has violated the principle of
Sustainable Development, as it has not properly quantified the significance of mining
industry and benefits it is providing to indigenous people.

Development and the protection of the environment, these two things are not contrary to each
other, but both are essential as without the presence of both, the environment would either
perish or remain stagnant long enough to wither away rather slowly, which is essentially the
same thing as far as the outcome is concerned. If without degrading the environment,
stringent safeguards are swiftly applied, then it is possible to carry on development activity
by applying the principles of sustainable development. Development has to go on because
one cannot lose sight of the need for development of industries, irrigation resources and
power projects etc. which includes the need to improve employment opportunities and the
generation of revenue. There must be equilibrium between the two which means that
development has to be done complemented with adverse minimum effects. Only in this
60
eventuality, the environment would grow. A balance has to be struck.

Mining within the principle of Sustainable Development comes within the concept of
"balancing" whereas mining beyond the principle of sustainable development comes within
the concept of "banning". It is a matter of degree. Balancing of the mining activity with
environment protection and banning such activity are two sides of the same principle of
61
sustainable development. They are parts of the precautionary principle.

It was observed that the balance between environmental protection and developmental
activities could only be maintained by strictly following the principle of 'sustainable
62
development.' This is a development strategy that caters the needs of the present without
negotiating the ability of upcoming generations to satisfy their needs. The strict observance of
sustainable development will put us on a path that ensures development while protecting the
environment, a path that works for all peoples and for all generations. All environmental
related developmental activities should benefit more people while maintaining the
63
environmental balance.

60 K. Guruprasad Rao v. State of Karnataka, (2013) 8 SCC 418.

61 T.N. Godavarman Thirumulpad v. Union of India & Ors., (2009) 6 SCC 142.
62 M.C Mehta v. Union of India, 2002 (4) SCC 353.
63 Vellore Citizens Welfare Forum v. Union of India A.I.R 1996 SC 2715.

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 14

In a catena of cases we have reiterated that right to clean environment is a guaranteed

64
fundamental right, May be in different context, the right to development is also declared as
65
a component of Article 21.

The right to development is an inalienable human right by virtue of which every

human person and all people are entitled to participate in, contribute to, and enjoy economic,
social cultural and political development, in which all human rights and fundamental
66 67
freedoms can be fully realised. The Declaration on the Right to Development to which
India is a signatory recognising that development is a comprehensive.

Therefore, the adherence of sustainable development principle is a sine qua non for
the maintenance of the symbiotic balance between the rights to environment and
development. Right to environment is a fundamental right. On the other hand right to
development is also one. Here the right to 'sustainable development' cannot be singled out.
Therefore, the concept of 'sustainable development' is to be treated an integral part of 'life'
68 69
under Article 21. The weighty concepts like inter-generational equity , public trust
70 71
doctrine , and precautionary principle , which are declared as inseparable ingredients of
our environmental jurisprudence, could only be nurtured by ensuring sustainable
72
development.

The specific grounds upon which a public authority can be challenged by way of
judicial review are the same for environmental law as for any other branch of judicial review,
73
namely on the grounds of illegality, irrationality, and procedural impropriety.

The Notification issued by the government has totally overlooked the concept of
sustainable development. There is a dire need of protecting the environment but on the other
hand economic development is also need of the hour. The resources when used optimally and
within the ambit of sustainable development then it lead to the betterment of the society. All

64 Samata v. State of Andhra Pradesh, A.I.R1997 SC 3297.

65 Madhu Kishore v. State of Bihar, A.I.R 1996 SC 1864.
66 Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Barde and Anr. (1995) 2 SCC 549.
67 Universal Declaration of Human Rights, 1948.
68 ND Jayal and Anr. v. Union of India and Ors. (2004) 9 SCC 362.
69 State of Himachal Pradesh v. Ganesh Wood Products, A.I.R 1996 SC 149.
70 M.C. Mehta v. Kamal Nath (1997) 1 SCC 388.
71 Supra Note 4.
72 Supra note 7.
73 David Woolley QC, John Pugh-Smith, William Upton, and Richard Langham; Environmental Law (2nd
Ed., 2016).

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 15

the principal viz. Inter generational equity, public trust doctrine and precautionary principle
along with industrial development, use of natural resource and employment generation can
pave a way for better future. The notification issued by government has overlooked the
employment of those 200 workers and their dependent families, it has overlooked the revenue
generation.

The petitioner humbly submits that earlier the MoEFCC has granted them the
environment clearance and thereafter the company had invested huge amount of resources
and employed labour which has been jeopardized by the Notification. The company has
imbibed the principal of sustainable development that is why the company has followed all
the procedure established by law and then only started mining. The Notification which has
been issued has only considered the one half of the Sustainable Development which is itself
flawed because the same authority has given the environment clearance.

Thus the notification issued by Union of Aryavarta is violative of the Principle of

Sustainable development which is an integral part of Art. 21. Hence it violates article 21.

III. WHETHER THE ACT OF UNGRANTING OF LAND TO THE MINING COMPANY SUFFERS FROM
THE VICE OF MALICIOUSNESS AND WOULD RESULT IN LOSS OF LIVELIHOOD TO THE

WORKERS UNDER ART. 21 OF THE CONSTITUTION AND HENCE BAD LAW.

It is most humbly submitted that the contract formed between the Mining Company, was in
74
accordance with the requirements of a Government contract. About 200 people from the
vicinity of the Mining Company drew their employment from the operation of high-caliber
75
explosives and machinery , and the State’s action pertaining to non-compliance to the
contract, would result indirectly in the loss of livelihood of the workers.

There is no distinction between a contract between two parties and a contract in which
76
one of the parties is the Government. It means to serve the purpose of principle of equating
the capacity of the Government to that of an individual, so as to provide no undue advantage
in the favor of the Government upon entering into a contract. Even though a Government
contract is governed by the provisions of the Indian Contract Act, it still has to comply with

74 Const. Art. 299 cl 1.

75 8, Factsheet.
76 Ram Lal v State of Punjab, A.I.R 1966, Punj 436.

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 16

77
the provisions of Article 299 (1) of the Constitution. If the formal requirements required by
78
article 299 are complied with, the contract can be enforced against the Union or the
79
States. The principle of reasonableness and rationality is an essential element of equality
80
provided by Article 14 and it must be projected in every State Action. The action of the
Government should be non-arbitrary, even though it can depart from the terms and conditions
of a government contract in the interest of the public as nothing should be done which gives
81
an appearance of bias, jobbery or nepotism. In the present case, the State did act in an
arbitrary and in an unreasonable manner which did not pertain to any public interest.

A. Vice of Maliciousness

82
As per the Guidelines of MoEF , the State forwards the proposal for declaring a specific
area as an Eco-Sensitive Zone. Now if MoEFCC has declared an area as Eco-Sensitive Zone,
then suggestion must have been sent by State of Hodu. This shows the malice intention of
state that if they have issued a tender of 50 acres, then sending a proposal for declaration of
an area, which is near to the mining area, as an Eco-Sensitive Zone shows an ill will. It is an
act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully
without reasonable or probable cause, and not necessarily an act done from ill feeling and
spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the
State, it can never be a case of personal ill- will or spite on the part of the State. It is an act
which is taken with an oblique or indirect object. It means exercise of statutory power for
83
"purposes foreign to those for which it is in law intended. Malice in law means something
done in law without lawful excuse. It presupposes an act done wrongly without sufficient
cause and reason.

B. Loss to Livelihood

The delay in granting of the land in the present case is tantamount to denial or refusal, and for this
very reason the MNC, which is in agreement with the Company threatened its departure. It has
put the livelihood of the workers at risk, as the livelihood is a part of human dignity and is
perceived within the ambit of quality of life and the Constitution also envisages personal

77 State of Bihar v Majeed, A.I.R 1954, SC 786.

78 Const. Art.299.
79 Pollock & Mulla, Indian Contract and the Specific Relief Acts 312 (12th ed. 2001).
80 Const. Art.14.
81 Shri Sachidanand Pandey v State of West Bengal, A.I.R 1987, SC 1109.
82 Guidelines for Eco-Sensitive Zone Around Protected Area, Ministry of Environment and Forest,
Government of India.
83 Supra note 36.

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 17

84
liberty of the person. Living a life would be rendered impossible if the way to live, which is
85
the limbs and faculties through which it is exercised, is choked.

86
It was observed in Olga Tellis v Bombay Municipal Corporation :

‘’An equally important facet of this right is the right to livelihood because, no person
can live without the means of living, that is, the means of livelihood. If the right to livelihood
is not treated as a part of the constitutional right to life, the easiest way of depriving a person
his right to life would be to deprive him of his means of livelihood to the point of
abrogation.’’

If the Courts have safeguarded the right to speech and expression, the right to form
associations and unions, right to property, right to freedom of trade, then it cannot be
oblivious of the rights of millions who are deprived of their livelihood by arbitrary, capricious
87
and whimsical actions of the State and its instrumentalities.

The actions of the State have not only violated right to livelihood of the workers but it
has put an immediate halt to all of the mining activities, which were carried out in the region
of the area. It is contended that there is a violation of freedom of trade, business or
occupation of workers due to the callous actions of the State in granting the remaining 30
acres. Along with the right to livelihood, the freedom to exercise their business, occupation or
trade has also been infringed.

It is quite open for anybody to have his own freedom to do the work, trade and
88
business or occupation which is a fundamental right under Article 19(1)(g). The trade or
89
calling by which one ordinarily seeks to get his livelihood. Here the workers had their
employment in the form of manning this high-powered machinery which required a large
amount of manpower. It is what primarily takes up one’s time, thought and energies,
especially, one’s regular business or employment; also whatever one follows as the means of
making a livelihood. It may be a particular business, profession, trade or calling which

84 Francis Coralie v Union Territory of Delhi, A.I.R 1994, SC 1844.

85 Inder Puri General Store And Ors. v Union of India, A.I.R 1992, JK 11.
86 Olga Tellis v Bombay Municipal Corporation A.I.R 1986, SC 180.
87 Jagdish Chand v Labor Commissioner And Ors. 1995 PLR 581.
88 A. Basheer v District Labour Office, [2012(3) KLT 892].
89 Luckin v Hamlyn, (1869) 21 LT 366.

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 18

engages an individual’s time and efforts; employment in which one regularly engages or
90
vocation of his life.

Moreover, the Directive Principles of State Policy also point to the protection of
livelihood to the working class. Although Article 32 and 226 provide for the enforcement of
91
Fundamental Rights, the Directive Principles are equally important even though Article 37
explicitly provides that they are not enforceable in a Court of law and that there must be
conformity between the Directive Principles and the Fundamental Rights as both of them, in
92
unity, emit the philosophy of the Constitution. The equilibrium between the Directive
93
Principles is maintained through the application of Doctrine of Harmonious Construction.
94
Article 39(a) of the Constitution, provides that the State shall, in particular, direct its policy
towards securing that the citizens, men and women equally, have the right to an adequate
means of livelihood.

95
It is humbly pleaded before the Hon’ble Court that a writ of mandamus be issued by
the Apex Court against the State of Hodu, in order to compel the authorities to grant the
remaining land of 30 acres to the Mining Company so that a recuperative Domino Effect is
put into motion, which means that MNC holds its part of the bargain and retains the Joint
Venture with the Mining Company. All the conditions for the issuance of a prerogative writ
like mandamus have been effectively satisfied in the present case:

96
1. There must be legal right of the petitioner. It is the right of the Mining Company to
be entitled to the land arising out of the obligation of the State to grant it.

2. There must be legal duty and that must be of public nature. Even though the writ is
not issued for discharging contractual obligations or to enforce a contract inter partes,
it will lie where the petitioner’s contractual right with a third party is interfered by the
97 98
State. Here, the State itself a was party to the contract as it was made in
accordance with Article 299 (1) and fulfilled all the requirements so as to be called a
government contract. Moreover, the third party i.e. the MNC has formed a contractual

90 Vimalben Ajitbhai Patel v Vatshaben Ahok Bhai Patel & Ors. A.I.R 2008, SC 2675.
91 Const. Art. 37.
92 Gajendragadkar P.B., Constitution of India: Its Philosophy and Basic Postulates 14, (1970).
93 Minerva Mills Ltd. v Union of India, A.I.R 1980, SC 1789.
94 Const. Art. 39(a).
95
Const. Art. 32 cl 2.
96 Umakant v State of Bihar, A.I.R 1973, SC 964.
97 Calcutta Gas Co. v State of West Bengal, A.I.R 1962, SC 1044, 1047.
98 4, Factsheet.

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 19

agreement in the form of a Joint Venture with the Mining Company, which is
described as are a form of corporation wherein two or more persons or companies
99
may join together. .

All the enumerated points which are requisites of condition of issuance of the writ
have been fulfilled. Hence, it is requested that the writ be issued against the State by the Apex
Court so as to provide remedy to the workers.

IV. WHETHER IT IS OPEN FOR THE STATE GOVERNMENT TO RESILE FROM ITS
CONTRACTUAL OBLIGATION.

It is humbly submitted that the doctrine of promissory estoppel is squarely applicable to the
facts and circumstances of the present case inasmuch as the State of Hodu promised to grant
50 acres of land and pursuant to this promise, company heavily invested in the Project. The
100
Apex Court in State of Bihar v. Kalyanpur Cement Ltd. , has held that in order to invoke
doctrine of promissory estoppel, it must establish that:

(a) A party must make an unequivocal promise or representation by word or conduct to the
other party;

(b) The representation was intended to create legal relations or affect the legal relationship,
to arise in the future;

(c) A clear foundation has to be laid in the petition, with supporting documents;

(d) It has to be shown that the party invoking the doctrine has altered its position relying on
the promise;

Further, the Apex Court in M/s. Motilal Padampat Sugar Mills Co. Ltd., v State of Uttar
101
Pradesh and others in para 36 has held as follows:

"36..... It is indeed difficult to see on what principle can a Government, committed to the rule
of law, claim immunity from the doctrine of promissory estoppel. The Court would not act on
the mere ipse dixit of the Government, for it is the Court which has to decide and not the

99 New Horizons Ltd. v Union of India, (1995) 1 SCC 478.

100 State of Bihar v. Kalyanpur Cement Ltd. (2010) 3 SCC 274.
101 M/s. Motilal Padampat Sugar Mills Co. Ltd., vs. State of Uttar Pradesh and others (1979) 2 SCC 409.

MEMORIAL ON BEHALF OF THE PETITIONERS

Arguments Advanced 20

Government whether the Government should be held exempt from liability. If, however, the
102
promisee cannot resume his position, the promise would become final and irrevocable.

Satisfaction of four salient pre-conditions is essential before invoking the rule of estoppel.
Firstly, one party should make a factual representation to the other party. Secondly, the other
party should accept and rely upon the aforesaid factual representation. Thirdly, having relied
on the aforesaid factual representation, the second party should alter his position. Fourthly,
the instant altering of position should be such that it would be iniquitous to require him to
103
revert back to the original position. Here, the contract represented factual representation
and the same was accepted and relied upon, thus fulfilling the first two conditions. On the
basis of this contract, the mining company commenced their operation which pertains to
altering of position with respect to representations made. This fulfills the third condition.
Finally, the mining company was in no position to revert to its initial stage, hence, promissory
estoppel should be applied in the instant case.

104
Prior to the case of Union of India v Anglo Afghan Agencies , the doctrine of promissory
estoppel was not applicable against the Government.

Therefore, The Government of Aryavarta or any State Government cannot backtrack

if it has made any promise to any person and that person or party in respect of that must have
made or acted in some manner with respect to that promise. The exception to this rule is that
the promise should not be inconsistent with the law of the land and that it should not be
against public interest. In the present condition, there was no such thing present and hence the
Government is liable to return the remaining 30 acres of land.

In the case in hand, petitioner has placed its bid and got the tender, for a period of 15
years, under an exclusive lease for 50 acres of land. The Company entered into a J.V., which
showed that company has altered its position. Thus, there is enough material on record to
show that the Government agreed to grant the 50 acres of land for mining. Thus, the
Government gave promise that the mining leases would be executed and pursuant to the
promise, the petitioners altered their position. Therefore, it is not open for the Government to
resile from the promise as it is estopped by the doctrine of promissory estoppel from doing
so.

102 Emmanuel Avodeji Ajaye v. Briscoe (1964) 3 All ER 556.

103 Pratima Chowdhury v. Kalpana Mukherjee, (2014) 4 SCC 196.
104 Union of India & Ors. v Indo- Afghan Agencies, 1968 SCR (2) 366.

MEMORIAL ON BEHALF OF THE PETITIONERS

Prayer for Relief xiv

PRAYER FOR RELIEF

WHEREFORE, in the lights of the facts used, issues raised, arguments advanced and
authorities cited, it is most humbly and respectfully prayed that this Hon'ble court may be
pleased to adjudge and declare that:

A. The said petition is maintainable and should be accordingly disposed of.

B. The Notification issued by Union of Aryavarta is unconstitutional.

C. A writ of mandamus must be issued to command the State Government to release the
remaining land

D. Declaration of area, near mining land, as the Eco-Sensitive Zone is invalid.

And pass any order that this Hon’ble court may deem fit in the interest of equity, justice
and good conscience.
And for this act of kindness, the counsel for the petitioners shall duty bound forever pray.

Place: Aryavarta S/d

Date: Feburary, 2018 (Counsel for the Petitioners)

MEMORIAL ON BEHALF OF THE PETITIONERS