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----------------------------------------------------------------------------------------------------------------------------------------------------------10th NALSAR BR Sawhney Moot, 2016
Best Team Memorial - Petitioner
Before
THE SUPREME COURT OF INDUS
WRIT PETITION NO ____/2016 & _____/2016
IN THE MATTER OF:
Government of Dilli Pradesh . . Petitioner
Versus
Union of Indus . . Respondent
&
King Bird Pvt. Ltd. . . Petitioner
Versus
Union of Indus . . Respondent
BRIEF FOR THE PETITIONERS
TABLE OF CONTENTS
TABLE OF CONTENTS
2
TABLE OF ABBREVIATIONS
3
INDEX OF AUTHORITIES
4
STATEMENT OF JURISDICTION
7
STATEMENT OF FACTS
8
STATEMENT OF ISSUES
10
SUMMARY OF ARGUMENTS
11
ARGUMENTS ADVANCED
1.
LT. GOVERNOR DOES NOT HAVE THE COMPETENCY TO ENACT SUCH A LAW
13
1.1
Power of Lt. Governor as an Administrator under Article 239AA
13
1.2
Lt. Governor is bound by the Aid and Advise of Council of Ministers
14
2.
CENTRAL GOVERNMENT (THROUGH LT. GOVERNOR) DOES NOT HAVE THE COMPETENCY TO ENACT SUCH A LAW
17
2.1
Union Territory has a separate status from Central Government
17
2.2
Distribution Of Lists Is Essence To Constitution
18
3.
PROHIBITION ORDER IS INFRINGING THE KING BIRD'S RIGHT TO TRADE UNDER ARTICLE 19
21
3.1
The Petition Filed By King Bird Is Maintainable
21
3.2
State Not Bound To Enforce Directive Principles When Abriding Fundamental Right
24
4.
PROHIBITION ORDER IS INFRINGING ARTICLE 14 OF KING BIRD
25
4.1
Prohibition Order Does Not Follow The Element Of Reasonable Classification
25
4.2
The Prohibition Order Is Arbitrary
26
5.
PROHIBITION ORDER IS IN VIOLATION OF ARTICLE 21
30
5.1
Validity of Law curbing liberty under Article 21
31
5.2
Violation of Right to livelihood
32
5.3
Right to Consumption under Article 21
32
PRAYER
33
TABLE OF ABBREVIATIONS
1.
AIR
:
All India Reporter
2.
Anr.
:
Another
3.
Admn.
:
Administration
4.
Cal
:
Calcutta
5.
Cl.
:
Clause
6.
DTC
:
Delhi Transport Corporation
7.
Edn.
:
Edition
8.
FC
:
Federal Court
9.
GNCTD
:
Government of National Capital Territory of Delhi
10.
Govt.
:
Government
11.
Ibid
:
Ibidem
12.
Id
:
Idem
13.
Lt.
:
Lieutenant
14.
NDMC
:
New Delhi Municipal Corporation
15.
No.
:
Number
16.
Ors.
:
Others
17.
p.
:
Page
18.
Para.
:
Paragraph
19.
SC
:
Supreme Court
20.
SCC
:
Supreme Court Cases
21.
SCR
:
Supreme Court Reports
22.
Sec.
:
Section
23.
Supp
:
Supplementary
24.
v.
:
Versus
25.
IRJCAR
:
International Research Journal Arts Science
INDEX OF AUTHORITIES
1.
53 Minn 214 : 54 NW 1115 (1893)
24
2.
A.K. Gopalan v. State of Madras, 1950 SCR 88
32
3.
A.K. Roy v. Union of India, (1982) 1 SCC 271
32
4.
A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602
32
5.
Andaman Wood Products Pvt. Ltd. v. Union of India, AIR 2001 Cal 61
14
6.
Ashok Kumar v. Union of India, (1991) 3 SCC 498
20
7.
Atiabari Tea Co. Ltd. v. State of Assam, AIR 1961 SC 232
25
8.
B.P. Singhal v. Union of India & Anr., Writ Petition 296 of 2004
15
9.
Bennett Coleman & Co. & Ors v. Union of India & Ors, (1973) 2 SCR 757
24
10.
Bhola Prasad v. Emp, AIR 1942 FC 17
21
11.
Chandigarh Administration and Anr. v. Surinder Kumar And Ors, (2004) 1 SCC 530
18
12.
Delhi Development Horticulture Employees' Union v. Delhi Admn., (1992) 4 SCC 99
33
13.
Dilip Chowdhry v. Registrar of Co-op. Societies, A&N Islands, Port Blair, AIR 2000 Cal 228
14
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----------------------------------------------------------------------------------------------------------------------------------------------------------14.
Dilip Chowdhry v. Registrar of Co-op. Societies, A&N Islands, Port Blair, AIR 2000 Cal 228; Andaman Wood Products Pvt. Ltd. 14
v. Union of India, AIR 2001 Cal 61.
15.
District Registrar and Collector, Hyderabad v. Canara Bank, (2005) 1 SCC 496 : AIR 2005 SC 186
32
16.
DTC v. Mazdoor Congress, 1991 Supp (1) SCC 600
33
17.
Francis Coralie Millin v. Union Territory, (1981) 1 SCC 608 : AIR 1981 SC 746
32, 33
18.
Goa Sampling Employees' Association v. General Superintendence Co. of India Pvt. Ltd., (1985) 1 SCC 206
15
19.
Govt. of NCT of Delhi v. All India Central Civil Accounts, Jaos Association and Ors., (2002) 1 SCC 344
19
20.
Govt. of NCT of Delhi v. Union of India, Writ Petition No. 5888/2015
16, 18, 20
21.
Inderjeet v. State of U.P., (1980) 1 SCC 255
32
22.
Kharak Singh v. State of U.P., AIR 1963 SC 1295
33
23.
Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574
28
24.
KolutharaExporrts Ltd. v. State of Kerela, (2002) 2 SCC 459
25
25.
Krishna S. v. State of Madras, 1951 SCR 621
33
26.
Lakshman v. State of M.P., (1983) 3 SCC 275 : AIR 1983 SC 656
25
27.
M.C. Mehta v. Union of India, (2003) 5 SCC 376
33
28.
M.J. Sivani v. State of Karnataka, (1995) 5 SCC 289
28
29.
Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597
27, 32
30.
Manoj Narula v. Union of India, Writ Peition (Civil) No. 289 of 2005
15
31.
Mohan Meakin Ltd. v. State of H.P., (2009) 3 SCC 157
20
32.
N.D.M.C. v. State of Punjab, (1997) 7 SCC 339
19
33.
Narendra Kumar Chnadla v. State of Haryana, (1994) 4 SCC 460
33
34.
Olga Tellis v. Bombay Municipal Corp., (1985) 3 SCC 545
33
35.
Om Prakash Pahwa v. State of Delhi, (1998) 46 DRJ 719
17
36.
P.V. Narsimha Rao v. State, (1998) 4 SCC 626
15
37.
R.C. Cooper v. Union of India, (1970) 3 SCR 530
24
38.
R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471
32
39.
R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183
17
40.
Ravi YashwantBhoir v. District Collector, Raigad, (2012) 4 SCC 407
15
41.
Samdasani P.D. v. Central Bank, AIR 1952 SC 59
22
42.
Satya Dev Bushari v. Padma Dev, AIR 1954 SC 587
19
43.
Shri Bileshwarb Khana Udyog Khedut Sahakari Mandal Ltd. v. State of Gujarat, (1992) 2 SCC 42
21
44.
Shrimant Shamrao Suryavanshi & Anr. v. Prahlad Bhairoba Suryavanshi by LRs & Ors., (2002) 3 SCC 676
17
45.
Shrimant Shamrao Suryavanshi & Anr. v. Prahlad Bhairoba Suryavanshi by LRs & Ors., (2002) 3 SCC 676
17
46.
State of A.P. v. Mc Dowell & Co., (1999) 3 SCC 709
20
47.
State of Bihar v. Industrial Corpn. (P) Ltd., (2003) 11 SCC 465
20
48.
State of Madras v. Nataraja Mudaliar, N.K., AIR 1969 SC 147
25
49.
State of Tamil Nadu v. Hind Stone, (1981) 2 SCC 205 : AIR 1981 SC 711
25
50.
State of U.P. v. Shah Md., (1969) 1 SCC 771
33
51.
State of U.P. v. Singhara Singh & Ors., (1964) 4 SCR 485
18
52.
Suhil flour Mills v. Chief Commissioner, (2000) 10 SCC 593
14
53.
Sushil Flour Dal & Oil Mills v. Chief Commissioner, (2000) 10 SCC 593
14
54.
Synthetics & Chemicals Ltd. v. State of U.P., (1990) 1 SCC 109
21
55.
T.M.A. PAI foundation v. State of Karnataka, (2002) 8 SCC 481
17
56.
U.N.R. Rao Gandhi v. Indra Gandhi, (1971) 2 SCC 63
16
57.
Ugar Sugar Works Ltd. v. Delhi Admin., (2001) 3 SCC 635 : AIR 2001 SC 1447
20
58.
United RWAS Joint Action v. Union of India, Wrtit Petition (C)-895/2011
17
59.
Vindy Pradesh v. Shri Maula Bux, (1962) 2 SCR 794
19
STATUTES
1. Constitution of India, 1950
2. Government of India Act, 1951
3. National Prohibition Act, 1919 (Volstead Act)
4. The Companies Act, 2013
5. 69th Amendment Act, 1991
6. GNCTD Act, 1991
7. Delhi Vat Act, 2004
OTHER AUTHORITIES
1. Balakrishanan Report on Re-Organization of Delhi Set Up
2. http://delhi.gov.in/wps/wcm/connect/doit_tourism/Tourism/Home/Infrastructure
3. http://homedistiller.org/intro/comm362/ChapterOne (Procedure to make beer)
4. http://www.abc.net.au/health/features/stories/2013/09/10/3845522.htm
5. http://www.delhi.gov.in/wps/wcm/connect/doit_excise/Excise/Home/Functions/Excise+Department/Licensed+Places+in+Delhi/List+of++L1+Licensees
6. http://www.delhi.gov.in/wps/wcm/connect/doit_excise/Excise/Home/Functions/Excise+Department/Licensed+Places+in+Delhi/List+of+Clubs
7. http://www.delhi.gov.in/wps/wcm/connect/doit_excise/Excise/Home/Functions/Excise+Department/Licensed+Places+in+Delhi/List+of+Hotels
8. http://www.delhi.gov.in/wps/wcm/connect/doit_excise/Excise/Home/Functions/Excise+Department/Licensed+Places+in+Delhi/List+of+Restaurants
9. https://www.morningmystbotanics.com/wp-content/uploads/distilling_principles.pdf (Procedure of Making any other alcohol)
10. Transaction of Business Rules for Disposal of Business, Delhi, 1993
COMMENATRIES AND DIGESTS
1. 1 P Ramanatha Aiyar, Advanced Law Lexicon, (3rd Edn. 2005)
2. 1, M.P. Jain, Indian Constitutional Law, (6th Edn. 2010)
3. 10, Durga Das Basu, Commentary on the Constitution of India, (8th Edn. 2012)
4. 2 H.M. Seervai, Constitutional Law, (4th Edn.)
5. 8, Halsbury's Laws of England, Para. 4th Edn. 1980)
6. Bryan A. Garner, Black Law Dictionary, (8th Edn. 2004)
7. Durga Das Basu, Constitutional Law of India, (8th Edn. 2011)
8. M.P. Jain, Indian Constitution Law, (6th Edn. 2013)
9. V.N. Shukla, Constitution of India, (13th Edn. 2016)
STATEMENT OF JURISDICTION
The counsel for the Petitioners most respectfully showeth:
In the Writ Petition Govt. Of Dilli Pradesh v. Union of Indus, the petitioner has approached Hon'ble High Court of Dilli Pradesh under Article 2261 of the
Constitution of India, 1950. Owing to the Public Interest question of law involved, the same writ has been transferred to this Hon'ble Court under Article
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----------------------------------------------------------------------------------------------------------------------------------------------------------139A2 of Constitution of India.
In the Writ Petition of Kings Bird Liquor Pvt. Ltd. v. Union of Indus, the petitioner has approached this Hon'ble Court under Article 323 of Constitution of
India. It is further submitted that this court has jurisdiction to entertain both writ petitions under article 139A and 32 of the Constitution.
STATEMENT OF FACTS
1. Indus is a Republic in the continent of Asia and the laws of the country are in para materia with the laws of India (including the Constitution of India).
Dilli Pradesh is one such union territory of Indus which has very rich cultural and historical importance. Dilli Pradesh have been given special status under
constitution, in which regard legislative assembly can enact laws in line with Article 239AA of the constitution.
2. Since 2015, there has been various incidences in Dilli Pradesh wherein the root cause of concern has been the heavy usage/consumption of alcohol. The
citizens of Dilli Pradesh have raised several concerns with respect to the menace being caused due to high proliferation of alcohol. Moreover, various NGOs
and International Organisations have agitated upon the same fact that there has been a widespread menaces being caused due to the consumption of
alcohol.
3. Government of Dilli Pradesh (which at that time was run by a political party called “Aap ki Party”) had taken note of the said problems, however, no
action had been taken with respect to the same. The Hon'ble Health Minister of Dilli Pradesh had indicated that, whilst he empathizes with the concerns
raised by the people, they are in deliberations for addressing such grievances in the best possible manner.
4. In March 2016, another national political party i.e. Moody Janta Party (hereinafter referred to as “MJP”) won the central elections in Indus.
Fundamentally, MJP's key manifesto agenda in Dilli Pradesh was a complete ban on the menace of alcohol in Dilli Pradesh. Additionally, MJP had promised
the citizens that if elected, it will ensure a complete prohibition on the sale of alcohol in Dilli Pradesh. Notably, MJP won all 8 seats in Dilli Pradesh.
5. After coming to power, the Central Government of Indus(through the Lt. Governor of Dilli Pradesh) in July 2016 issued a notification called the “Dilli
Pradesh Prohibition Order, 2016” (hereinafter referred to as the “Prohibition Order”). In terms of the Prohibition Order, there was a complete prohibition on
the “sale, distribution, marketing and consumption of whisky, wine, rum, vodka, gin, tequila or any other alcohol” within the territory of Dilli Pradesh.
Nonetheless, it is pertinent to note that that the said Prohibition Order expressly excluded “Beer and any other alcoholic beverage” wherein the alcohol
content is beneath 5%. Thereafter, the Prohibition Order came into effect from August 1, 2016.
6. The Prohibition order was heralded by the people of Dilli Pradesh as a move to completely eradicate the consumption of alcohol. The governor stated
that the said Prohibition Order has been passed pursuant to the guidelines laid down in the Directive Principles of State Policy. However the State
government criticised the said enactment as being counterproductive to the economy of the county.
7. The Chief Minister stated that apart from the adverse impact on the indirect taxes collected from the manufacture of alcohol, the Lt. Governor has acted
beyond its competence in enacting the said law.
8. King Bird Liquor Pvt. Ltd. (hereinafter referred to as “King Bird”), a company engaged in the business of manufacture of premium whiskies and vodkas
was gravely affected pursuant to which they filed a petition under Article 32 of the Constitution of Indus before the Hon'ble Supreme Court of Indus. Kind
Bird alleged that the Prohibition Order has violated its fundamental rights including (but not limited to) under Article 14 and 19 of the Constitution of Indus.
9. State Government of Dilli Pradesh also filed a petition under Article 226 of the Constitution of India before the High Court of Dilli Pradesh challenging
the legislative competence of the Central Government (through Lt. Governor) to enact such a law.
10. Owing to the public interest and questions of law involved, the Supreme Court suo motu sought transfer of the petition pending before the High Court
of Dilli Pradesh and has tagged both the petitions for hearing.
11. Hence, these Writ Petitions.
STATEMENT OF ISSUES
1. Whether the Lt. Governor has the Executive Competency in Enacting the said law?
2. Weather the Central Government (through Lt. Governor) has the Legislative competency to enact such a law?
3. Whether the Prohibition Order is infringing the King Bird's right to trade under Article 19?
4. Whether the Prohibition Order is infringing Article 14 of King Bird?
5. Whether the Prohibition Order is in violation of Article 21?
SUMMARY OF ARGUMENTS
1.
LT. GOVERNOR DOES NOT HAVE THE COMPETENCY TO ENACT SUCH A LAW
13
1.1 Power of Lt. Governor as an Administrator under Article 239AA
13
A. President in Control of Union Territories through an Administrator
13
B. Power of Lt. Governor Circumscribed by Article 239AA
14
1.2 Lt. Governor is bound by the Aid and Advise of Council of Ministers
14
A. Cabinet form of Government in State of Dilli Pradesh
14
B. Aid and Advice by Council of Ministers
15
2.
CENTRAL GOVERNMENT (THROUGH LT. GOVERNOR) DOES NOT HAVE THE COMPETENCY TO ENACT SUCH A LAW
17
2.1 Union Territory has a separate status from Central Government
17
A. Union Territory does not converge with Central Government
17
2.2 Distribution Of Lists Is Essence To Constitution
18
A. Importance of Demarcation of Lists
18
B. Item 8 under State List
19
C. Industries under Item 52 of Union List not to Include Potable Liquor
20
3.
PROHIBITION ORDER IS INFRINGING THE KING BIRD'S RIGHT TO TRADE UNDER ARTICLE 19
21
3.1 The Petition Filed By King Bird Is Maintainable
21
A. The Prohibition Order Is An Order Of State
21
B. The Status Of King Bird Can Be Construed As A Citizen Through Its Managing Director
22
C. Prohibition Order Violates Article 301
23
3.2 State Not Bound To Enforce Directive Principles When Abriding Fundamental Rights
24
4.
PROHIBITION ORDER IS INFRINGING ARTICLE 14 OF KING BIRD
24
4.1 Prohibition Order Does Not Follow The Element Of Reasonable Classification
25
A. The Classification Is Not Based On Intelligible Differentia
25
B. The Differentia Does Not Have A Nexus With The Object
26
4.2 The Prohibition Order Is Arbitrary
26
A. The Prohibition Order Is Not Absolute
26
B. Prohibition Order Is Politically Motivated
27
C. Ill Effects Of Prohibition Order
28
5.
PROHIBITION ORDER IS IN VIOLATION OF ARTICLE 21
30
5.1 Validity of Law curbing liberty under Article 21
31
A. Test of law under Article 14
31
B. Procedure for the law to be Just, Fair and Reasonable
31
5.2 Violation of Right to livelihood
32
5.3 Right to Consumption under Article 21
32
ARGUMENTS
1. LT. GOVERNOR DOES NOT HAVE THE COMPETENCY TO ENACT SUCH A LAW.
It is the contention of the Counsel of Petitioner in the Writ petition of Government of Dilli Pradesh v. Union of Indus, that the Lt. Governor as mentioned as
the administrator of Delhi Pradesh under Article 239AA of the Constitution of Indus does not have the competency to enact such a law. This contention is
humbly advanced before the Hon'ble court in two fold manner. Firstly, Power of the Lt. Governor as an Administrator under Article 239AA (1.1), Secondly,
Lt. Governor is bound by the Aid and Advise of the council of ministers (1.2).
The above mentioned submissions have been further substantiated herein:
1.1 Power of Lt. Governor as an Administrator under Article 239AA
It is the humble submission of Counsel of Petitioner that the Lt. Governor has been given special power to exercise control over Union territories as a
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----------------------------------------------------------------------------------------------------------------------------------------------------------delegate of the President. In order to understand the competency of Administrator, we need to understand his functioning under the provisions of the
constitution.
This proposition has been further substantiated in two fold manner:
A. President in Control of Union Territories through an Administrator
Part VIII of the constitution deals with the powers for administration of Union Territories.4 A Union Territory is administered directly by the Central
Executive.5 A Union Territory is to be administered by the President acting, to such an extent as he thinks fit, through an Administrator appointed by him
such designation as he may specify.6 Administrator appointed under Article 239 shall be designed as the Lt. Governor in case of Delhi.7 The Administrator
appointed under cl. (1) has such powers as may be conferred on him by the President.8 An Administrator so appointed was the medium through which the
President exercised function of administering the Union Territories.9 . The Administrator is a delegate of the President and cannot be likened to Governor, after
differing from his ministers; the administrator may act under the orders of the President.10 The Counsel hereby humbly submits that, it is the President who
has the ultimate control over the administration of the Union Territory. Administrator appointed therein is just a medium for the President to exercise his
control and Administrator takes instruction from President himself. Power to refer the matter to the President is given to Lt. Governor under Transaction of
Business Rules of Delhi.11
B. Power of Lt. Governor Circumscribed by Article 239AA
The Counsel of Petitioner humbly submits that the power of Lt. Governor has been defined under Article 239AA. It can be observed that the under Article
239AA, there will be a council of ministers with chief minister at its head to Aid and Advise Lt. Governor in matters in which the Legislative Assembly has
power to make law.12 It explains in the matters where the Legislative Assembly does not have competency to make law, only in those matter Lt. Governor
has been given discretion. This view has been fortified with GNCTD Act, which explicitly states, in what all matters Lt. Governor can exercise his discretion. 13
1.2 Lt. Governor is bound by the Aid and Advise of Council of Ministers.
In further of the contention above, the Counsel of Petitioner wants to elaborate how the Lt. Governor in the present case is bound by the Aid and Advise of
the Council of Ministers. This contention has been further submitted in twofold manner:
A. Cabinet form of Government in State of Dilli Pradesh
It is the contention that, in India we have Cabinet form of Government, wherein the real power has been entrusted with the Council of Ministers to
represent the public by whom they have been elected.14 Cabinet form of Government is the heart and soul of our Constitution and the government is
accountable through its elected representative.15 “The President has thus been made a formal or constitutional head of the executive and the real executive
powers are vested in the Ministers or the Cabinet.”16 Further “The paramount convention is that the Sovereign must act on the advice tendered to her by her
ministers, in particular the Prime Minister. She must appoint as Prime Minister that member of the House of Commons who can acquire the confidence of the
House, and must appoint such persons to be members of the ministry and Cabinet as he recommends”17 Since the State of Dilli Pradesh is governed by
Article 239AA18 of the Constitution, it is very evident that it had Cabinet form of Government, where Council of Ministers will provide Aid and Advise to Lt.
Governor.19 The counsel humbly submits since there was a cabinet form of Government in state of Dilli Pradesh, Lt. Governor is only a figure head and works
on the Aid and Advise of Council of Ministers. This Aid and Advise will be provided by council of Ministers in the matters in which the Legislative Assembly
have competency to make law.20
B. Aid and Advice by Council of Ministers.
The Counsel of Petitioner contends that there are certain subject matters and situations wherein the Lt. Governor as an Administrator can act on his own
discretion without Aid and Advise of Council of Ministers. This view can be further understood in twofold manner:
(i) Subject matters in which Aid and Advise is required
The Counsel of Petitioner humbly submits that State of Dilli Pradesh has been provided with a Legislative Assembly under the Constitution.21 This
legislative assembly has been given competency to enact law with all matters in State List except Item 1, 2, and 18.22 Now further counsel wants to contend
that the council of Ministers in State of Dilli Pradesh have been given power to Aid and Advise Lt. Governor on the matters in which the Legislative assembly
has competency to make law.23 This entails that Council of Minister with Chief Minister at its head are conferred with certain executive power which are coextensive with Legislative powers.24 Matters in which Lt. Governor can act without such Aid and Advise has are the ones which falls outside the purview of
Legislative Competency of Legislative Assembly of Delhi25 . Certain rules have been given by the President for smooth functioning of Delhi known as
Transaction of Business Rules. Lt. Governor in the matters of Public Order, Police and Land, i.e. item 1, 2 and 18 which are out of competency of legislative
assembly may act in his own discretion only after consultation with Chief Minister.26
Counsel of Petitioner humbly submits that in the present case, the impugned notification “Prohibition Order”, deals with the sale distribution, marketing
and consumption of liquor on which the Legislative Assembly has competency to enact a law.27
This view has been expressed in the Judgement28 of Delhi High court, where it has laid that Lt. Governor needs to advice on matters in which the
Legislative Assembly has power to make law. It has also been mentioned that where the Lt. Governor will be performing the executive function of the state,
he will be doing so with the Aid and Advice of Council of Ministers.29 Further in another Delhi High court judgement of United RWAS Joint Action v. Union of
India30 , which is dealing with the audit of accounts of companies of GNCTD, it has been explained that, the Administrator has to act according to the Aid and
Advice of Council of Minister. It is also the contention of the Counsel of Petitioner that intention of 69th Amendment act could be noted through Report
Balakrishnan Committee, who was entrusted with the work of Re-organization of Delhi Setup. This report clearly says “The Administrator should be
expressly required to perform his functions on the aid and advice of the Council of Ministers. The expression “to aid and advice” is a well
understood term of art to denote the implications of the Cabinet system of Government adopted by our Constitution”31 . This report can be used
as a reliable source for understanding the true Intention for the 69th Amendment Act, for this counsel can rely on plethora32 of case.
(ii) In case of Difference between Lt. Governor and Council of Ministers.
Counsel of Petitioner further intends that, even in case of difference of opinion between Lt. Governor and his ministers, he can refer the matter to the
President for decision and act according to the decision given by the President.33 Counsel contends that it has been further explained in Transaction of
Business Rules, in case of difference of opinion, Lt. Governor can refer the matter to President and act according to the decision of thereof.34 It is humbly
submitted that in present case, there was no difference of opinion since the Lt. Governor did not consult any minster before enacting this notification. Hence
the matter could not be referred to President for his decision. “The power conferred by the proviso to Article 239AA(4) shall be exercised in accordance with
the procedure prescribed by Rules 49 to 51 of the Transaction of Business Rules or not at all”.35
2. CENTRAL GOVERNMENT (THROUGH LT. GOVERNOR) DOES NOT HAVE THE COMPETENCY TO ENACT SUCH A LAW
The Counsel of Petitioner humbly submits that the Central Government did not have the legislative competency to enact such a law in form Notification
(Impugned) as has been mentioned36 . This contention has been advanced before this Hon'ble court in twofold manner: Firstly, Union territory has a
separate status from Central Government (1.1), Secondly, Distinction of Lists in matters of Legislative Competency (1.2).
The above mentioned submissions have been substantiated herein:
2.1 Union Territory has a separate status from Central Government
It is the contention of the Counsel of Petitioner that, Union Territory has a separate identity from Central Government through the provisions of
Constitution. The Counsel will further substantiate this in the following manner:
A. Union Territory does not converge with Central Government.
The Counsel humbly submits that the Union Territory has been given separate status under constitution on India.37 It is the contention of the Counsel
that, Union territory does not converge with the Central Government. For this counsel relies on the Apex Court judgment in Chandigarh Administration and
Anr. v. Surinder Kumar and Ors38 wherein it has been said that “Under Article 239 of the Constitution of India the Union Territories are administered by the
President of India acting through an Administrator to be appointed by him. But this does not mean that the Union Territories become merged with the
Central Government.”This view has been further substantiated Apex court judgement, where in it has been stated that “Though the Union Territories are
centrally administered under the provisions of Article 239 they do not become merged with the Central Government”39 The President who is the executive
head of a Union Territory does not function as the head of the Central Government, but as the head of the Union Territory, under powers specially vested in
him under Article 239.40 The Parliament41 has been given the power to legislate for the Union Territory of Delhi over and above Legislative Assembly, but
through legislation and not through an Executive Action in the case at hand.
2.2 Distribution Of Lists Is Essence To Constitution.
The Counsel of Petitioner humbly submits that there has been clear division as of subject matters when it comes to area of legislation of the Central and
State government42 Counsel of Petitioner wants to substantiate that, it is the state, in our case Union Territory who has the sole prerogative to enact a law
with respect to liquor43 . This contention has been further explained in threefold manner:
A. Importance of Demarcation of Lists
Counsel of Petitioner has humbly submits that, Constitution of India have provided for the demarcation of legislative powers between the centre and the
state in the form of Lists. The three lists are very detailed and the constitution makers have made an attempt to make the entries in one List exclusive of
those in other lists.44 The Scheme of Article 246 is to secure that there is no transgression of the Union List over the Two Lists, and that of the concurrent
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----------------------------------------------------------------------------------------------------------------------------------------------------------lists over state list.45 An Entry in one list cannot be so interpreted as to make it cancel or obliterate another entry or make entry meaningless.46 The doctrine
of Colourable legislation is based on the maxim that what cannot be done directly also cannot be done indirectly. The idea conveyed by this expression
“Colourable” is that although a legislature in passing a statue purports to act within the limits of the powers, yet in substance and in reality it transgresses
those powers, the transgression being veiled by what appears on proper examination to be a mere pretence or disguise.47 The Union in the case at hand
indirectly using the position of the Lt. Governor, and trying to enact a law on whom competency rests with Legislative assembly of State. Counsel humbly
submits that in the case at hand legislative assembly of Dilli Pradesh has been given competency to enact laws with matters in state list48 . Herein the Item
1, 2 and 18 mentioned in the constitution cannot be merely altered by Notification. Power to amend constitution is only under Article 368.
B. Item 8 under State List
In Government of India Act, 1935, Intoxicating Liquor and narcotics drugs, that is to say, the production, manufacture, possession, transport, purchase
and sale of intoxicating liquors were all under the legislative competency of the state.49 In the present schedule too, the same in under prerogative power of
the state.50 . Alcohol liquor for human consumption means liquor which as it is consumable in the sense capable of being taken by human beings as such as
beverage of drinks51 .Persons engaged in manufacture of intoxicating liquors are governed by the law made by the state in which is competent to make a law
of prohibiting their manufacture and production, in addition to their sale, consumption, possession and transport, with reference to entry 6 and 8 of List II
read with Article 47 of the constitution.52 State has every authority to regulate the supply of liquor within its territorial jurisdiction to ensure that what is
supplied is ‘liquor of good quality’ in interests of health, morals and welfare of the people.53 The states under Entries 8 and 51 of List II read with Entry 84
have exclusive privilege to legislate on intoxicating liquor or alcohol for human consumption.54
‘That is to say’-These words show that the words ‘production etc’ which follows are merely illustrative and not words of limitation.55 By reason of these
words, the entire field of legislation on the subject of intoxicating liquors, including prohibition, belongs exclusively to the state legislature.56 Counsel of
Petitioner humbly submits that the Dilli Pradesh has the competency to enact laws with respect to all items in state list barring 1, 2, and 18.57 This clearly
that competency to make law on Item 8 of state list rests with Legislative Assembly of Dilli Pradesh and not with the Central Government.
C. Industries under Item 52 of Union List not to Include Potable Liquor
Counsel of Petitioner contends that, Union Government is in control of certain industries in public industries.58 Keeping in view this entry an act called as
Industries (Development and Regulation) Act, 1951 has been enacted. This Act explicitly states the industries which should be under the control of the
Union.59 One such entry in the schedule includes fermentation industry. This entry 26 under the Schedule in Industries (Regulation and Development) Act,
transgresses on the power of the State to legislate under Item 8 of the State list. In lieu of this confusion, an amendment was passed on14th May, 2016,
replacing the word “Fermentation Industry” with “Fermentation Industry (OTHER THAN POTABLE LIQUOR).”60 This amendment has lucidly settled the
confusion caused over legislative competency over ‘intoxicating liquor’. Counsel wants to rely on the Apex Court judgement in Synthetics & Chemicals Ltd. v.
State of U.P.61 , wherein it has been held that, industrial alcohol i.e. alcohol not for human consumption, Parliament alone has the legislative power.
Parliament cannot take over the control of industries engaged in the production and manufacture of the intoxicating liquors by making a declaration under
Entry 52 of List I since the said Entry governs only the industries referred to in Entry 24 of List II, but not the Entry 8 of List II. The power to grant licence
for manufacture of industrial alcohol vests with the Central Government alone.62 As regards industries manufacturing rectified spirit exclusively for Industrial
purposes, they fall under the total and exclusive control of the Centre and are governed by the IRDA Act.63 Counsel of Petitioner humbly submits that it is
has been established that, Union Government only holds power to control Alcoholic liquor only for the industrial purposes and not the Potable liquor for
Human Consumption.
3. PROHIBITION ORDER IS INFRINGING THE KING BIRD'S RIGHT TO TRADE UNDER ARTICLE 19
It is the contention of the Counsel of Petitioner in the case of King Bird Pvt. Ltd v. Union of Indus that the Impugned Dilli Pradesh Prohibition Order, 2016
(hereinafter referred to as “Prohibition Order”) is infringing the Fundamental Right of King Bird Pvt. Ltd (hereinafter referred to as “King Bird”). This
humble submission is substantiated in three fold manner; Firstly The Petition filed by King Bird is Maintainable (3.1); Secondly State not bound to enforce
Directive Principles when Abridging Fundamental Rights (3.2);
3.1 The Petition Filed By King Bird Is Maintainable
It is the contention of the Counsel of Petitioner that the instant petition is maintainable under Article 32 of the Constitution. It is further submitted that
the Fundamental Rights along with Constitutional Rights of the Petitioner have been gravely violated. This proposition is humbly advanced in three fold
manner hereinafter.
A. The Prohibition Order Is An Order Of State
It is the humble submission of the Counsel of Petitioner, that the impugned Prohibition Order is an order of the State. The counsel has substantiated this
contention in a twofold manner herein:
(i) Fundamental Rights Can Be Enforced Against State
The definition of the term “the state” specifies the authorities and instrumentalities functioning within or outside the territory of India which shall be
deemed to be “the State” for the purposes of Part III of the Constitution.64 The rights which are guaranteed by Articles 19,65 are guaranteed against State
action as distinguished from violation of such rights by private individuals. It is evident from the facts of Moot Proposition,66 that the Central Government of
Indus through the Lt. Governor has issued the Prohibition Order. Since, Central Government undeviating comes under the ambit of Article 1267 ; therefore the
Prohibition Order issued by the Central Government is an Order of State.
(ii) Prohibition Order To Be Construed As ‘Law’
To further this contention, the Counsel of Petitioner wishes to put some light on the Moot Proposition;68 wherein it has been clearly stated that the Central
Government through Lt. Governor issued a notification called the Dilli Pradesh Prohibition Order, 2016. It is further submitted by the Counsel of Petitioner
that the impugned Prohibition Order in the instant case falls under the definition69 of “law”, as provided under Article 13; wherein it is clearly stated that a
notification can be construed as a “law” which has a legal force in the territory of India. On a perusal of other provisions of Article 13,70 it is ascertained that
the state shall not make any law which could curtail any of the fundamental rights. Therefore, the Impugned Prohibition Order cannot curtail any of the
fundamental rights of King Bird and should be struck down on the vice of unconstitutionality.
B. The Status Of King Bird Can Be Construed As A Citizen Through Its Managing Director
It is indisputable from the facts of Moot Proposition that King Bird has filed the petition under Article 3271 through its Managing Director.72 Even
assuming, without conceding, in arguendo, that the status of King Bird as a citizen may be challenged, it is the Counsel's submission that as per the
Companies Act73 the managing director is a director who is appointed by virtue of articles of the company, and includes a director occupying the position of
managing director. Further, it is submitted that the Companies Act74 clearly embarks upon the standing of Director in a company; wherein it is stated that
the director shall act in good faith in order to promote the objects of the company for the benefit of its members as a whole, i.e. stakeholders. It is hereby
submitted by the Counsel that it is impossible for the company to call upon all the shareholders so as to make them a party in a petition; therefore, the
company has appointed the directors by the virtue of Section 14975 . It is a universal fact that, the shareholders are the owners of the company; therefore,
they have appointed directors who will represent them in the day-to-day business of the company.
As far as the distinctness is concerned between the members and shareholders, it is well established that every member may be a shareholder, but every
shareholder may not be the member of the company. This may be substantiated by the virtue of Section 8876 , wherein, it has been clearly stated that the
company maintains a register wherein, only the names of members of the company are registered. But it is not necessary, that the shareholders have their
names listed in the register. Therefore, it may be said, without conceding, in arguendo, that King Bird may have only 200 members as per Companies
Act,77 but they may have innumerable number of shareholders who are not members of the company.
To further substantiate the aforesaid contention, it is hereby submitted that, since the impugned Prohibition Order is infringing the rights of the
shareholders of the company, therefore they must have a right to exercise their Fundamental Right under Article 19, notwithstanding the fact that the King
Bird is not a Citizen. The counsel further relies on the dicta of Gallagher v. Germania Brewing Co.,78 wherein it has been stated that the business of the
company is ultimately carried on by some human beings who are also the real beneficiaries.
Hence the counsel humbly submits that, considering the facts and circumstances of the case in hand, the Hon'ble Court should contemplate lifting the
corporate veil of King Bird so as to determine the people who are actually being affected by the impugned Prohibition Order.
Reliance is place on the dicta of Bennett Coleman case,79 wherein it has been held that “the fundamental rights of shareholders as citizens are not lost
when they associate to form a company. When their fundamental rights as shareholders rights are equally and necessarily affected if the rights of the
company are affected.” The counsel further fortifies this view taking the sanction from R.C. Cooper case80 which observed that a shareholder, depositor or a
director is entitled to move a petition only if his rights are also infringed; But, if the state action impaired rights of both company as well as the shareholder,
then the court will come forward in order to grant justice by virtue of lifting the corporate veil of the company.
C. Prohibition Order Violates Article 301
The Counsel of Petitioner contends that the impugned Prohibition Order has gravely affected the constitutional right of freedom of trade & commerce of
King Bird under Article 301. As observed by the Supreme Court in Atiabari case,81 Article 301 is not a declaration of a mere platitude, or the expression of a
pious hope of a declaratory character. Even assuming, without conceding, in arguendo, that the Prohibition Order82 has curbed the right to sell, distribute
the alcoholic beverages in Dilli Pradesh exclusively and that does not infringe the constitutional right of King Bird to trade or export the subject matter to
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----------------------------------------------------------------------------------------------------------------------------------------------------------other states; it is the humble submission of the Counsel that notwithstanding anything contained in abovementioned arguments, King Bird has the right to
trade throughout the territory of India including Dilli Pradesh. To further this contention, the counsel relies on the catena83 of cases, wherein it has been
held that the word freedom in Article 301 not only extends to inter-state movements and transactions but also to intra-state movements and transactions.
Additionally, the Counsel submits that even the restrictions embarked under Article 304(b)84 won’t suffice because the Prohibition Order per se is not
reasonable.85
3.2 State Not Bound To Enforce Directive Principles When Abridging Fundamental Rights
It is the humble submission of the counsel of the petitioner that the Articles included in the Part IV of the Constitution of India contains certain Directives
which shall be the “duty” of the State to follow in the matter of administration as well as in the making of laws.86 The Duty imposed by Directive Principle of
the State policy is a “moral duty”, so that the word duty in Part III and IV is not used in the same sense.87 It is hereby submitted that where any statue of a
state is questioned on the ground of legislative competency, the state cannot claim legitimacy for enacting such provisions with reference of Directive
Principles.88 Since in the present case, it has been already established in the aforesaid arguments that the legislative competency with respect to Item 889 ,
it is only the Legislative Assembly of Dilli Pradesh who has the competency to enact laws pertaining to liquor. Therefore the Centre has no competency to
enact such laws pertaining to liquor in the garb of Directive Principles.
4. PROHIBITION ORDER IS INFRINGING ARTICLE 14 OF KING BIRD
It is the contention of the Counsel of Petitioner that the Impugned Prohibition Order is gravely infringing the Fundamental Right of King Bird under Article
14. This humble submissions is substantiated in three fold manner: Firstly Prohibition Order does not follow the elements of reasonable classification (4-1);
Secondly Prohibition Order is Arbitrary in Nature (4.2); thirdly Ill effects of Prohibition Order (4.3).
4.1 Prohibition Order Does Not Follow the Element of Reasonable Classification
The Counsel of Petitioner humbly submits that the Prohibition Order has not followed the basic elements of reasonable classification. This has been
substantiated herein:
A. The Classification Is Not Based On Intelligible Differentia
In furtherance of this proposition, the Counsel wishes to put some light on the process as to how beer and all other alcoholic beverages are made. Beer is
made by the process of fermentation90 and all other alcoholic beverages are prepared by the process of Distillation.91 Explaining further, the Counsel of the
Petitioner hereby explains the procedure of making beer in which fermentation takes place which is a Bio-logical process in which a sugar (pectin (source of
methanol)) is broken down into Alcohol (i.e. Ethanol, Methanol) and Carbon dioxide. ‘Methanol is the simplest form of alcohol. It is closely related to ethanol,
the type of alcohol normally found in beer, wine and spirits.’92 All other alcohols are prepared through distillation in which pure alcohol (ethanol and
methanol) can be extracted out from impure alcohol (which comes after fermentation process).93 It is evident from the abovementioned facts that Methanol
is present in both the process, which implies that both Beer and other alcoholic beverages contain Methanol.
The Counsel further submits that since methanol is present in beer which is not prohibited as per the Prohibition Order, therefore the excessive
consumption of beer can lead to the same effects on the human body as that of other alcohol beverages having more than 5% alcohol content. This further
concludes that the classification done in the Prohibition Order is malafide in nature and stands invalid.
B. The Differentia Does Not Have A Nexus With The Object
In furtherance of this proposition, the Counsel of the Petitioner puts reliance on the Moot Proposition,94 wherein it has been stated that the various
incidence has been happening in Dilli Pradesh due to the consumption of alcohol. As far as the Counsel can relate, the Prohibition Order in Dilli Pradesh
premise its existence from the abovementioned facts of the Moot Proposition. However, as per the abovementioned arguments, the counsel has already
substantiated that there is no difference between beer and other alcoholic beverages having more that 5% of alcohol content. Therefore, the differentia which
the Prohibition Order has proclaimed stands to have no legitimate nexus with the object. The counsel further explains that the main object of the Prohibition
Order was to eradicate the menace which was caused due to the high proliferation of alcohol. But according to the case in hand, the prohibition is not
absolute, i.e. the prohibition is partial; therefore, the people can still resort to their practice of drinking. This clearly implies that the object to eradicate the
menace which was caused by the consumption of alcohol is nullified.
4.2 The Prohibition Order Is Arbitrary
The Counsel of Petitioner humbly submits that the Prohibition Order is Arbitrary in nature. The Counsel puts reliance on the dicta of Supreme Court in the
case of Maneka Gandhi v. Union of India95 wherein, an additional ground under Article 14 i.e. non-arbitrariness, has been deduced on the premise of equal
protection. However, the counsel herein submits that the basic grounds of article 14 have not been complied with.
A. The Prohibition Order Is Not Absolute
The counsel of Petitioner submits that as per the above mentioned arguments, it has been substantiated that beer and all other alcohol stands on the
same footing. Therefore the effects from consumption of beer and alcohol are homologous. Moreover, it is evident from the aforesaid contentions that the
impugned Prohibition Order is not absolute but, only partial. The counsel contends that there may be a possibility of never-ending menace in Dilli Pradesh
because beer and other alcohol below 5% content can efficiently fulfil the desires of the consumers if consumed excessively.
Even assuming, without conceding, in arguendo, that arbitrariness is not found ex facie on mere reading of the impugned Prohibition Order, the Counsel
humbly puts reliance on a case,96 wherein it has been observed that the actions of the state, uninformed by reason, may amount to be arbitrary and be
liable to be questioned.
The Counsel humbly submits that, regardless of the fact that the harm of beer and all other alcohol are similar, yet the prohibition did not extend to beer
and other products having less than 5% of alcohol content. This clearly creates a suspicion within masses that the practice which has been resorted to by the
Government involves malice. The action of prohibiting alcohol partially stands liable to be dismissed as arbitrary as it does not satisfy the object of
eradicating the dreadful effects of alcohol consumption.
Further, the counsel contends that the procedure adopted while enacting the impugned Prohibition Order has not followed the basic element of Article 14.
The Prohibition Order is ought to follow a fair and just procedure while enacting the order itself. However, it has already been substantiated that the
procedure adopted in enacting the impugned Prohibition Order is bad per se.
Furthermore, the counsel puts reliance on the dicta of Khoday Distilleries,97 wherein, it has been held that “when the state permits trade or business in
potable liquor, the citizen has the right to carry on trade or business subject to the limitations, if any, and then State cannot make discrimination between
the citizens who are qualified to carry on the trade or business.” Therefore, it is evident that the impugned Prohibition Order has put a partial prohibition,
giving privilege to some to do trade in liquor while horrendously prohibiting others. Hence, the prohibition is arbitrary in nature and stands liable to be
dismissed in toto.
B. Prohibition Order Is Premised On Political Opportunism
The Counsel of Petitioner wishes to put some light on the facts mentioned in the Moot Proposition,98 wherein it is conspicuous that Moody Janta Party
(hereinafter reffered to as ‘MJP’) promised the citizens of Dilli Pradesh that it will ensure a complete ban on the sale of alcohol, if elected. Moreover, it is
pertinent to note99 that MJP won all the seats in Dilli Pradesh pursuant to which, the impugned Prohibition Order was enacted.
It is hereby submitted that, that the impugned Prohibition Order has been enacted partially which apparently stands contrary to the promises made by
the MJP. This further substantiates that the promises of complete ban by the MJP was only an instrument to come into the power and gain votes from the
citizens of Dilli Pradesh.
C. Ill Effects Of Prohibition Order
The counsel of Petitioner humbly submits that there is plethora of ill effects which is caused by the impugned Prohibition Order in Dilli Pradesh. Moreover,
it is submitted that the Central Government did not appoint any Committee100 in order to analyse the pros and cons of the prohibition order. This affair of
Central Government while enacting the Prohibition Order is clear evidence in order to prove that, this is totally an arbitrary action. Some of them have been
substantiated herein:
(i) Impact On Employment
The Counsel of Petitioner submits that there has been a grave injustice with large number of people who were employed into liquor trade. It is pertinent
to note that alot of liquor licences that are issued to different categories of people employed in liquor trade.101
The counsel submits that from a careful perusal of the official website102 of Delhi Government it has been made out that there are around 60
breweries103 and distillers104 in Delhi which are entrusted in manufacturing of potable liquor, and around 115 hotels105 including 3/4/5 star category.
Additionally, 736 restaurants106 and 51 Government Clubs107 that are committed to liquor trade alone. The counsel further submits that each of these
institutes, outfits or setups will have thousands of employees working with them; and it is important to note that there will be lakhs of families which are
confided on each of those employees. As far as Counsel can relate, it is an obnoxious and loathsome practice to prohibit the trade in liquor where lakhs of
people are dependent upon it. Therefore, the Counsel further submits that the Government has no power to take away that the right of livelihood which has
been clearly protected within the ambit of Article 21108 .
Even assuming, without conceding, in arguendo, that the Prohibition Order has been enacted keeping in view the public interest of the people at large,
the counsel submits, that as per the aforesaid submissions, the impugned Prohibition Order has displaced lakhs of people which have been stranded
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----------------------------------------------------------------------------------------------------------------------------------------------------------unemployed. The counsel further submits that no proper rehabilitation process has been carried out in order to compensate the losses which these people
are subjected to.
(ii) Impact On Economy
Dilli Pradesh is the capital city of the Country, wherein innumerable number of business conferences and parties are organised. It is the humble
submission of the Counsel of Petitioner that a complete embargo on the alcohol consumption by virtue of the Prohibition Order will drive out all the
investments and businesses from Dilli Pradesh. This action will directly hit on the Economy of Dilli Pradesh. It is a settled fact that the trade in liquor
contributes a large share in the revenues earned by the state.109
(iii) Impact On Tourism
As per the Moot Proposition,110 it is evident that Dilli Pradesh has a very rich cultural and historical importance. Moreover, Dilli Pradesh, by the virtue of
Article 239AA111 is not just a Union Territory, but shall be called as the National Capital Territory (hereinafter referred to as NCT). Dilli Pradesh has its origin
from 1450 B.C. and has been continuous existence for over a thousand years now. Dilli Pradesh being the NCT receives 62% of foreign travellers and NRI
visiting India.112
The tourism industry accounts for a 5.6% of total GDP, which provides employment to approximately 20 million people.113 It is hereby submitted by the
Counsel of Petitioner that, the impugned Prohibition Order will deter the tourism in Dilli Pradesh. Thus, this deterrence on the account of prohibition will drive
out the innumerable number of tourist who is visiting the capital city.
(iv) Bootlegging
It is humbly submitted by the Counsel of Petitioner that, one of the reason why Prohibition order is bad in law is that it will lead to further brewing of illicit
liquor and giving an opportunity for burgeoning of Bootleggers. The Counsel further submits that as far as History pertaining to liquor ban in United
States114 is concerned, it can be made out that the prohibition was never a solution. Instead of drinking legally, people started drinking illegally.
The Counsel further contends that, Dilli Pradesh as a state is susceptible to smuggling of liquor from the neighbouring states. “Recently more than 130
people died after bootleg in Gujarat.”115 It is pertinent to note that if there is a prohibition in state on liquor, people are forced to buy illicit liquor at inflated
price.
The counsel further submits that as far as Home Brewed liquor is concerned, people are forced to prepare their own home made liquor. “In the year 2009
43 people from western India died due to drinking this very tainted liquor, out of which 23 were from Ahmadabad where the Prohibition was imposed in
absolute.”116
5. PROHIBITION ORDER IS IN VIOLATION OF ARTICLE 21
Counsel of Petitioner humbly submits that the impugned “Prohibition Order” is violation of liberty enshrined under Article 21. In the view of the above
contentions where it has been justified, how Prohibition Order is in bad in law, it would be not difficult to establish how Article 21 of the Directors and
Employees of the Company is being violated. This view has been substantiated in threefold manner. Firstly, Validity of Law curbing liberty under article 21
(5.1), Secondly, Violation of Right to livelihood (5.2). Thirdly, Right to consumption under Article 21 (5.3). The above contentions have been
substantiated herein:
5.1 Validity of Law Curbing Liberty under Article 21
In Article 21, it is open to challenge the constitutional validity of a law which deprives a person of his life and liberty on the ground that it contravenes
fundamental rights other than Article 21 e.g. Article 14117 or 19118 . This contention has been further explained in two fold manner:
A. Test of law under Article 14
The object of Article is to prevent encroachment upon personal liberty by the Executive save in accordance with law and in conformity with the provisions
thereof.119 Right to personal liberty also means live free from encroachments unsustainable in law.120 Any law interfering with the personal liberty must
satisfy triple test :(i) it must prescribe a procedure; (ii) the procedure must withstand test of one or more of the Fundamentals Rights conferred under
Article 19 ; (iii) it must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and
the procedure authorizing interference with personal liberty and right to privacy must also be right, just and fair and arbitrary. If the procedure prescribed
does not satisfy provisions of article 14, it would be no procedure under Article 21.121 Counsel humbly submits that since in the Issue 4, it has been clearly
established how the Prohibition order is arbitrary, it does not qualify as law under Article 21 to Curb Personal Liberty.
B. Procedure for the law to be Just, Fair and Reasonable
The expression ‘procedure established by law’ in the same article 21 means the procedure prescribed by the law of the state should not be arbitrary,
unfair or unreasonable.122 In A.K. Roy v. Union of India123 , it was observed executive action cannot be qualified as ‘law’ within Article 21. The underlying
object of Article 21 is to wholly deny the executive the power to deprive a person to deprive a person of his life or deprive a person of his personal liberty.124
Parliament has the power to change the procedure by enacting a law by amending it and when the procedure is so changed, it becomes the ‘procedure
established by law.125 Herein the Counsel of Petitioner contends that, as shown in Issue 1 and Issue 2, the Lt. Governor did not have the competency to
enact the said law and further Central Government did have the legislative competency, which goes on to prove that impugned prohibition was brought into
force without the right procedure to curb liberty within Article 21.
5.2 Violation of Right to Livelihood
It is evident from the above mentioned arguments that lakhs of people are solely dependent on liquor of Dilli Pradesh. The Counsel further contends that
the impugned Prohibition Order will result in the loss of livelihood of the public at large. Article 21 can be construed to include the bare necessities of life
such as adequate nutrition, clothing and shelter.126 Further the counsel places reliance on catena127 of cases, wherein it has been clearly embarked that right
to livelihood is included in Right to Life128 , because no person can live without the means of living, that is, the means of livelihood.
5.3 Right to Consumption under Article 21
The Counsel of Petitioner humbly submits that, an Individual has the Right to consume in the privacy of his dwelling any commodity he wants to
consume. Liberty under Article 21 does not merely means that liberty of body, but means much more than that.129 In Kharak Singh v. State of U.P.130 , the
Apex court rules that the term “Personal Liberty” is a compendious term to include within itself all varieties of rights which go up to make personal liberties,
that the term per se Contrary to this Moot Proposition131 , clearly states that the consumption of liquor has been banned. It is hereby submitted by the
Counsel, that the prohibition on the consumption is complete arbitrary action of the state which eradicates the personal liberty of an individual guaranteed
under Article 21. Even assuming without conceding in arguendo that the Prohibition Order was heralded132 by the people of Dilli Pradesh, the counsel
submits that the personal liberty of an individual cannot be by passed in the garb of collective liberty. This means that even if the Prohibition Order is
celebrated all over the city, it does not bestow upon the state to take away the right to consumption of an individual.
PRAYER
Wherefore, in the light of the facts of the case, issues raised, arguments advanced and authorities cited, this Hon'ble Court may be pleased to:
1. DECLARE THAT, LT. GOVERNOR DOES NOT HAVE THE COMPETENCY TO ENACT SUCH A LAW IN HIS SOLE DISCRETION WITHOUT AID AND
ADVICE OF COUNCIL OF MINISTERS.
2. DECLARE THAT CENTRAL GOVERNMENT DOES NOT HAVE THE LEGISLATIVE COMPETENCY IN ENACTING THE IMPUGNED LAW.
3. ISSUE A WRIT OF MANDAMUS STRIKING DOWN THE IMPUGNED PROHIBITION ORDER AS UNCONSTITUTIONAL.
And issue any other, writ or direction in the interest of justice, equity and good conscience.
This, the Counsel for the Petitioner shall duty bound, forever pray.
Place: Union of Indus
S/d________________
Date:
(Counsel for Petitioner)
———
226. Power of High Courts to issue certain writs (1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to
issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions,
quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose(2) The power conferred by clause ( 1 ) to issue directions, orders or
writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the
exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories(3) Where any party against whom an interim order,
whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without(a) furnishing to such party copies of such petition and all
documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy
of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which
it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day
afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand
vacated(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause ( 2 ) of Article 32.
1
139A. Transfer of certain cases(1) Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more
High Courts and the Supreme Court is satisfied on its own motion or an application made by the Attorney General of India or by a party to any such case that such questions are substantial questions of
general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself: Provided that the Supreme Court may after
determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court
2
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----------------------------------------------------------------------------------------------------------------------------------------------------------shall on receipt thereof, proceed to dispose of the case in conformity with such judgment (2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or
other proceedings pending before any High Court to any other High Court.
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
3
4
Constitution of India, 1950, Part VIII
5
M.P. Jain, Indian Constitution Law, p.507 ( 6th Edn. 2013)
6
Dilip Chowdhry v. Registrar of Co-op. Societies, A&N Islands, Port Blair, AIR 2000 Cal 228; Andaman Wood Products Pvt. Ltd. v. Union of India, AIR 2001 Cal 61.
7
Constitution of India, 1950, Article 239AA (1)
8
V.N. Shukla, Constitution of India, p. 731 (13th Edn. 2016)
9
Suhil flour Mills v. Chief Commissioner, (2000) 10 SCC 593 at Para. 4
10
Constitution of India, 1950, Article 239AA Cl. (4) Proviso; Goa Sampling Employees’ Association v. General Superintendence Co. of India Pvt. Ltd., (1985) 1 SCC 206 at Para. 17
11
Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, Rule 49 to 50
12
Constitution of India, 1950, Article 239AA (4)
13
Government of National Capital Territory of Delhi Act, 1991, Sec. 41(1) (i)
14
B.P. Singhal v. Union Of India & Anr., Writ Petition 296 of 2004; Manoj Narula v. Union of India, Writ Peition (Civil) No. 289 of 2005
15
P.V. Narsimha Rao v. State, (1998) 4 SCC 626; Ravi Yashwant Bhoir v. District Collector, Raigad, (2012) 4 SCC 407
16
U.N.R. Rao Gandhi v. Indra Gandhi, (1971) 2 SCC 63
17
8, Halsbury's Laws of England Para. 819 (4th Edn. 1980); S.R. Chaudhari v. State of Punjab, (2001) 7 SCC 126
18
Moot Proposition, Para. 2
19
Constitution of India, 1950. Article 239A(4)
20
Ibid.
21
Moot Proposition, Para. 2
22
2 Constitution of India, 1950, Article 239AA(3)(a)
23
Constitution of India, 1950, Article 239AA(4) ; Union Territories Act, 1963, Sec. 44(1)
24
Govt. of NCT of Delhi v. Union of India, Writ Petition No. 5888/2015. p. 23
25
Government of National Capital Territory of Delhi Act, 1991, Sec. 41(1)(i)
26
Transaction of Business Rules, 1991, Proviso Rule 45
27
Moot Proposition, Para. 7; Constitution of India, 1950, Schedule VII, State List, Item 8
28
Om Prakash Pahwa v. State of Delhi, (1998) 46 DRJ 719, Para. 67
29
Id at Para. 78
30
Writ Petition(c) – 895/2011
31
Balakrishanan Report on Re-Organization of Delhi Set Up, Para. 6.7.21
Shrimant Shamrao Suryavanshi & Anr. v. Prahlad Bhairoba Suryavanshi by LRs & Ors., (2002) 3 SCC 676; T.M.A. PAI foundation v. State of Karnataka, (2002) 8 SCC 481; R.S. Nayak v. A.R. Antulay
(1984) 2 SCC 183
32
33
Constitution of India, 1950, Article 239AA(4) Provsio
34
Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, Rule 50
35
Supra Note 16 at 58; State of U.P. v. Singhara Singh & Ors. (1964) 4 SCR 485.
36
Moot Proposition, Para. 7
37
Constitution of India, 1950, Part VIII
38
(2004) 1 SCC 530 at Para. 1
39
Satya Dev Bushari v. Padma Dev, AIR 1954 SC 587, Para. 1; Govt. of NCT of Delhi v. All India Central Civil Accounts, Jaos Association and Ors., (2002) 1 SCC 344
40
N.D.M.C v. State of Punjab, (1997) 7 SCC 339; Vindy Pradesh v. Shri Maula Bux (1962) 2 SCR 794
41
Constitution of India, 1950, Article 239AA(3)(b)
42
Constitution of India, 1950, Seventh Schedule.
43
Moot Proposition, Para. 9
44
1, M.P. Jain, Indian Constitutional Law, p. 756 (6th Edn. 2010)
45
Id at p. 757
46
Id at p. 758
47
Ashok Kumar v. Union of India, (1991) 3 SCC 498
48
Supra Note 16 at. p. 88
49
Government of India Act, 1951, List II, Item 31
50
Constitution of India, 1950, Seventh Schedule, List II, Item 8
51
Mohan Meakin Ltd. v. State of H.P., (2009) 3 SCC 157
52
State of A.P. v. Mc Dowell & Co., (1999) 3 SCC 709; State of Bihar v. Industrial Corpn. (P) Ltd., (2003) 11 SCC 465
53
Ugar Sugar Works Ltd. v. Delhi Admin., (2001) 3 SCC 635 : AIR 2001 SC 1447
54
10, Durga Das Basu, Commentary on the Constitution of India, p. 11998 (8th Edn. 2012)
55
Id at p. 12000
56
Bhola Prasad v. Emp, AIR 1942 FC 17
57
Moot Proposition, Para. 2; Constitution of India, 1950, Article 239AA(3)(a)
58
Constitution of India, 1950, Schedule 7th, List I, Item 52
59
Industries (Regulation and Development) Act, 1951, Sec. 2 Read with Schedule
60
The Industries (Development And Regulation) Amendment Act, 2016, Sec. 3
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(1990) 1 SCC 109
62
State of U.P. v. Synthetics & Chemicals Ltd., (1993) 2 SCC 308
63
Shri Bileshwar Khana Udyog Khedut Sahakari Mandal Ltd. v. State of Gujarat, (1992) 2 SCC 42
64
V.N. Shukla, Constitution of India, p. 26(12thEdn. 2016)
65
Samdasani P.D. v. Central Bank, AIR 1952 SC 59
66
Moot Proposition, Para. 7
67
Constitution of India, 1950, Article 12
68
Moot Proposition, para 7
69
Constitution of India, 1950 Article 13(3)(a)
70
Constitution of India, 1950 Article 13(2)
71
Constitution of India, 1950 Article 32
72
As per the Clarifications provided dated 11 September, 2016
73
The Companies Act, 2013, Sec. 2(54)
74
The Companies Act, 2013, Sec.166(2)
75
The Companies Act, 2013, Sec. 149
76
The Companies Act, 2013, Sec. 88
77
The Companies Act, 2013, Sec. 68(ii)
78
53 Minn 214: 54 NW 1115 (1893)
79
Bennett Coleman & Co. &Ors v. Union of India & Ors, (1973) 2 SCR 757
80
R.C. Cooper v. Union of India, (1970) 3 SCR 530
81
Atiabari Tea Co. Ltd. v. State of Assam, AIR 1961 SC 232
82
Moot Proposition, Para 7
83
State of Madras v. Nataraja Mudaliar, N.K., AIR 1969 SC 147; Lakshman v. State of M.P., (1983) 3 SCC 275 : AIR 1983 SC 656; State of Tamil Nadu v. Hind Stone, (1981) 2 SCC 205 : AIR 1981 SC 711
84
Constitution of India, Article 304 (b)
85
Infra
86
Durga Das Basu, Constitutional Law of India, p.213(8thEdn. 2011)
87
2 H.M. Seervai, Constitutional Law p. 1933-1934(4thEdn.)
88
Koluthara Exporrts Ltd. v. State of Kerela, (2002) 2 SCC 459
89
Constitution of India, 1950, Schedule 7, List II, Item 8
90
See at http://homedistiller.org/intro/comm362/ChapterOne
91
See at https://www.morningmystbotanics.com/wp-content/uploads/distilling_principles.pdf
92
See at http://www.abc.net.au/health/features/stories/2013/09/10/3845522.htm
93
See at https://www.morningmystbotanics.com/wp-content/uploads/distilling_principles.pdf
94
Moot Proposition, Para 3
95
Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597
96
M.J. Sivani v. State of Karnataka, (1995) 5 SCC 289
97
Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574
98
Moot Proposition, Para 6
99
Moot Proposition, Para 6
Bryan A. Garner, Black Law Dictionary, p. 289 (8thEdn. 2004); committee- a subordinate group to which a deliberate assembly or other organisation refers business for consideration, investigation,
oversight, or action.
100
101
See at http://delhi.gov.in/wps/wcm/connect/doit_excise/Excise/Home/Licences/
102
See at http://www.delhi.gov.in/wps/wcm/connect/doit_excise/Excise/Home/Functions/Excise+Department/Licensed+Places+in+Delhi/List+of++L1+Licensees
103
1 P Ramanatha Aiyar, Advanced Law Lexicon, p. 598 (3rdEdn. 2005)
104
2 P Ramanatha Aiyar, Advanced Law Lexicon, p. 1436 (3rdEdn. 2005
105
See at http://www.delhi.gov.in/wps/wcm/connect/doit_excise/Excise/Home/Functions/Excise+Department/Licensed+Places+in+Delhi/List+of+Hotels
106
See at http://www.delhi.gov.in/wps/wcm/connect/doit_excise/Excise/Home/Functions/Excise+Department/Licensed+Places+in+Delhi/List+of+Restaurants
107
See at http://www.delhi.gov.in/wps/wcm/connect/doit_excise/Excise/Home/Functions/Excise+Department/Licensed+Places+in+Delhi/List+of+Clubs
108
Constitution of India, 1950, Article 21
109
Delhi Vat Act, Sechedule, 2004, Schedule 4, 20% Vat on Liquor Trade.
110
Moot Proposition, Para 1
111
Constitution of India, 1950, Article 239AA
112
See at http://delhi.gov.in/wps/wcm/connect/doit_tourism/Tourism/Home/Infrastructure/
113
Ibid.
114
National Prohibition Act, 1919 (Volstead Act)
115
Effects of Total Liquor Ban on Gujarat's Economy, Prof. Tanu Sachdeva, IRJCAR. at p. 124
116
Ibid.
117
A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602
118
R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471
119
A.K. Gopalan v. State of Madras, 1950 SCR 88
120
M.P. Jain, Indian Constitutional Law, p. 1191, ((6th Edn. 2010)
121
District Registrar and Collector, Hyderabad v. Canara Bank, (2005) 1 SCC 496 : AIR 2005 SC 186
122
Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597; Inderjeet v. State of U.P., (1980) 1 SCC 255; Francis Coralie Millin v. Union Territory, (1981) 1 SCC 608 : AIR 1981 SC 746, Para.
3
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(1982) 1 SCC 271
124
M.P. Jain, Indian Constitutional Law, p. 1193, (6th Edn. 2010)
125
Krishna S. v. State of Madras, 1951 SCR 621; State of U.P. v. Shah Md., (1969) 1 SCC 771
126
Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608
Olga Tellis v. Bombay Municipal Corp., (1985) 3 SCC 545; DTC v. Mazdoor Congress, 1991 Supp (1) SCC 600; Delhi Development Horticulture Employees’ Union v. Delhi Admn., (1992) 4 SCC 99;
Narendra Kumar Chnadla v. State of Haryana, (1994) 4 SCC 460.
127
128
Constitution of India, 1950, Article 21
129
M.C. Mehta v. Union of India, (2003) 5 SCC 376
130
AIR 1963 SC 1295
131
Moot Proposition, Para. 7 and Para. 10
132
Moot Proposition, Para. 8
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