Team Code:

CHAMBAL

6TH NATIONAL MOOT COURT COMPETITION - 2022

Before

THE HON’BLE HIGH COURT OF KALYANA

IN Writ Petition (C) NO. __ OF 2022

Chamber of Private Sector …PETITIONER

V.

STATE OF KALYANA …RESPONDENTS

Memorial Submitted to the Registry of the Hon’ble High Court of Kalyana

MEMORIAL ON BEHALF OF PETITIONER

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ....................................................................................... 4

INDEX OF AUTHORITIES ......................................................................................... 5

STATEMENT OF JURISDICTION.............................................................................. 8

STATEMENT OF FACTS ............................................................................................. 9

ISSUES RAISED ........................................................................................................... 12

SUMMARY OF ARGUMENTS .................................................................................... 13

PLEADINGS .................................................................................................................. 15

I. That private sector concerns are not 'state' for the purpose of Part-III
of the Constitution................................................................................................. 15

A. Private sector concerns are not 'state' under Article 12 of the COI ..................... 9

II. The Act violates the fundamental right to carry on business................................ 19

MEMORIAL ON BEHALF OF PETITIONER Page 2

B. Act violates Article 19(1)(g) of Part III of the Constitution................................. 11

III. That government is estopped from superimposing the Act on the

private sector......................................................................................................... 26

C. The government is estopped from superimposing the act on the private

sector after attracting them to invest in the state with concessions......................

IV. The rule prohibiting the employees from joining political parties
including student wings of political parties is "ultravires" the act
and also the Constitution....................................................................................... 29

D. Act violates Article 19(1)(c) of Part III of the Constitution ................................

PRAYER .......................................................................................................................... 35

MEMORIAL ON BEHALF OF PETITIONER Page 3

LIST OF ABBREVIATIONS

SCC Supreme Court Cases

AIR All India Reporter

Hon'ble Honourable

UOI Union of India

S. Section

A. Article

COI Constitution of India

Edn. Edition

Vol. Volume

H.P Himachal Pradesh

A.P Andhra Pradesh

M.P Madhya Pradesh

ILR Indian Law Reports

SCR Supreme Court Reporter

Mad Madras

MEMORIAL ON BEHALF OF PETITIONER Page 4

INDEX OF AUTHORITIES

Cases

Zee Telefilms v. Union of India 2005 AIR SCW 2985

The University Of Madras v. Shantha Bai And Anr AIR 1954, Mad 67

Tekraj Vasandi Alias K.L. v. Union Of India & Others 1988 AIR 469, 1988 SCR

(2) 260

Ujjambai v. State of U P, AIR 1962 SC 1621

Electricity Board v. Mohan Lal AIR 1967 SC 1857

Rameshwarlal Haralka v. Union of India AIR 1970, Cal 520;

S.S and Ship Management Pvt. Ltd v. Board of Trustees AIR 1989 Cal 212 at

p.222;

P.A. Kannan v. State AIR 1989 Knt 285 at p.290

Chintaman Rao vs The State Of Madhya Pradeshram 1951 AIR 118, 1950 SCR 759

Motilal Padampat Sugar Mills vs State Of Uttar Pradesh And Ors

Director of Education v. Rawat Prakash Pandey 1971 ALJ 155:(1971) st of Lab I.C

975: AIR 1971 All 371

Narendra Kumar And Others vs The Union Of India And Others 1960 AIR 430,

1960 SCR (2) 375

Damayanti V. Union of India

State of Madras V. VG Rao

Sivani V State of Maharahtra

MEMORIAL ON BEHALF OF PETITIONER Page 5

State of Gujarat vs Mirzapur

In State of Gujarat v. Mirzapur Moti Kureshi Kasab Jamat (2005),

Vishaka V State of Rajasthan

Excel Wear v. Union of India (1978)10,

State of Kerala v. K. Somaselty

R.D.Shetty v. The International Airport Authority of India

Sabhajit Tewary v. Union of India

Rajasthan Electricity Board v. Mohan Lal

Union of India v. R.C. Jain

Kunj Behari Lal Butail v. State of U.P(2000) 3 SCC 40 para 15

Statutes

Constitution of India

Central Civil Services (Conduct) Rules, 1964

Constitutional Provisions

Article 12 of the Constitution of India

Article 19(1)(c) of the Constitution of India

Article 19(1)(g) of the Constitution of India

102nd Constitutional Amendment Act 2018

105th Constitutional Amendment Act 2021

Article 46 of the Constitution of India (DPSP)

Article 226 of the Constitution of India

Article 299 of the Constitution of India

MEMORIAL ON BEHALF OF PETITIONER Page 6

 Books

Indian Constitutional Law, M P Jain, Eighth Edition, Lexis Nexis

Principles of Administrative Law, Justice G P Singh, Justice Alok Aradhe, Sixth

Edition, Lexis Nexis

Administrative Law, Kailash Rai, Allahabad Law Agency

The Court and the Constitution of India, Summit and Shallows, Oxford India Paper

Backs, Sixth Impression 2013

MEMORIAL ON BEHALF OF PETITIONER Page 7

STATEMENT OF JURISDICTION

The Petitioner Ms. Chamber of Private Sector, in Writ Petition(C) __ of 2022 has

approached the High Court of Kalyana under Art. 226 of the Constitution of India.

MEMORIAL ON BEHALF OF PETITIONER Page 8

STATEMENT OF FACTS

In 2021, Kalyana State assembly passed Kalyana State Equal Opportunity of Employment in

Private Sector Act, 2021.

The state assembly also passed the Kalyana State Equal Opportunity of Employment in Private

Sector Rules, 2021, paving way for more employment opportunities for locals in the private

sector.

The act sought to reserve 50% of skilled and 80% of unskilled jobs for local candidates in

various private sector companies, societies, trusts and limited liability partnership firms situated

in the state of Kalyana, which employs more than 20 persons and who have taken any benefit

from the state in the form of land at subsidised price, free electricity, free water, exemption from

taxes, etc.

In a nutshell, the new reform reserves 50% of skilled and 80% of unskilled jobs for locals in the

private sector.

A candidate who lives in the state of Kalyana for a period of 15 years is a local candidate.

State Government is authorized to notify a list of skilled jobs to which the Act applies.

MEMORIAL ON BEHALF OF PETITIONER Page 9

 PROVISIONS

Preamble

• Preamble of the Act provides that it is an Act

(i) to secure the interests of the local people and

(ii) also to promote the interest of investors by providing for equal opportunities in

employment in private sector and

(iii) to insulate the private sector from political interference.

Applicability

• The act applies to

(i) all private sector companies, partnership firms, societies, trusts, limited liability

partnership firms etc.

(ii) any person employing 20 or more persons; and

(iii) who have taken any benefit from the state in the form of land at subsidised price,

free electricity, free water, exemption from taxes, etc.

• The Act has come into force and private sectors are required to comply the requirements of

the Act by 2025.

Reservations for Local Candidates

• All such employers must provide/reserve 50% of skilled jobs and 80% of unskilled jobs to

local candidates.

MEMORIAL ON BEHALF OF PETITIONER Page 10

 Benefits

• Benefits provided from the state in the form of land at subsidized price, free electricity, free

water, exemption from taxes, etc.

Compulsory for compliance

• Skilled jobs are defined to be those jobs that require the applicants to be technically qualified.

• Further the State Government is authorised to notify a list of skilled jobs to which the Act

applies.

Dispensation

• Employers may claim an exemption from providing reservation to locals if adequate number

of local candidates of desired skill, qualification or proficiency are not available.

Offences and Penalties

• In case of failure to comply with the provisions of the Act, the private sector concern has to

return the benefit it has received from the government of Kalyana.

Delegated Legislation

The State Government through the Kalyana State Equal Opportunity of Employment in

Private Sector Rules, 2021 provided that the employees cannot join political parties including

student’s wings of the political parties.

MEMORIAL ON BEHALF OF PETITIONER Page 11

ISSUES RAISED

The private sector concerns formed a Chamber of Private Sector and challenged the

constitutional validity of the Kalyana State Equal Opportunity of Employment in Private Sector

Act, 2021 before the High Court of Kalyana, inter alia on the following grounds:

1. That private sector concerns are not 'state' for the purpose of Part-III of the Constitution.

2. The Act violates the fundamental right to carry on business.

3. The government is estopped from superimposing the Act on the private sector after

attracting them to invest in the state with concessions.

4. The rule prohibiting the employees from joining political parties including student’s wings

of the political parties is ultravires the Act and also the Constitution.

MEMORIAL ON BEHALF OF PETITIONER Page 12

SUMMARY OF ARGUMENTS

ISSUE 1.

That private sector concerns are not 'state' for the purpose of Part-III of the Constitution.

As per Article 12, private sector concerns do not fall under the definition of 'Other

Authority'. The Petitioners are challenging that Private Sector does not come under the definition

of state under Article 12.

ISSUE 2.

The Act violates the fundamental right to carry on business.

The Petitioners are challenging that the act violates their very fundamental right to carry

on business as guaranteed in Part III under Article 19(1)(g) of the Constitution of India.

ISSUE 3.

The government is estopped from superimposing the Act on the private sector after

attracting them to invest in the state with concessions.

The challenge to the state on not honoring the principle of estoppel, and superimposing

the act on the private sector can be sustained.

MEMORIAL ON BEHALF OF PETITIONER Page 13

ISSUE 4.

The rule prohibiting the employees from joining political parties including student’s wings

of the political parties is ultravires the Act and also the Constitution

The rules formulated under Kalyana State Equal Opportunity of Employment in

Private Sector Rules, 2021 provided that the employees cannot join political parties including

students wings of the political parties.

The Petitioners are challenging the very nature of the rules under the delegated legislation

formulated under Kalyana State Equal Opportunity of Employment in

Private Sector Rules, 2021.

Further, they are challenging the very nature of the act itself as ultravires to the constitution.

MEMORIAL ON BEHALF OF PETITIONER Page 14

PLEADINGS

ISSUE 1.

That private sector concerns are not 'state' for the purpose of Part-III of the Constitution.

Definition in this part, unless the context otherwise requires, “the State includes the Government

and Parliament of India and the Government and the Legislature of each of the States and all

local or other authorities within the territory of India or under the control of the Government of

India “

The petitioner contends that Private Sector Companies do not fall under the definition of

State under the purview of Article 12 of the Constitution of India.

The Supreme Court in the case of Union of India v. R.C. Jain1 laid down the test for

determining which bodies would be considered as a local authority under the definition of state

enshrined under Article 12 of the constitution.

• Has a separate legal existence

• Functions in a defined area

• Has the power to raise funds on its own

• Enjoys autonomy i.e., self-rule and

• Is entrusted by statute with functions which are usually entrusted to municipalities, then

such authorities would come under ‘local authorities’ and hence would be ‘state’ under

Article 12 of the Constitution.

1 Union Of India & Ors vs R. C. Jain & Ors on 17 February, 1981

MEMORIAL ON BEHALF OF PETITIONER Page 15

The Supreme Court in the case of Rajasthan Electricity Board v. Mohan Lal2 laid down the

conclusive test for determining the bodies that would come under the ambit of ‘other authorities’.

The court held that if an authority

• has the power to issue directions and any offense against them is punishable by law

• has the power to make rules that would have statutory effect

• is an agency or instrumentality of state for carrying out trade or business which otherwise

would have been carried out by the state departments, such authorities would come

within the purview of ‘other authorities’ and hence would be considered ‘state’.

In Sabhajit Tewary v. Union of India3

The question before the court, in this case, was whether the Council of Industrial and Scientific

Research(CISR), which is registered under the Societies Registration Act, 1898 would come

within the definition of ‘state’ under Article 12. The Supreme Court observed that a body would

be ‘state’ if:

• It is performing essential state function and

• It is under the pervasive control of the Government.

• The court held CISR not to be ‘state’ as per the above said requirement.

2 Mohan Lal vs State And Ors. on 14 May, 1965

3 Sabhajit Tewary vs Union Of India & Ors on 21 February, 1975

MEMORIAL ON BEHALF OF PETITIONER Page 16

 In the case of R.D.Shetty v. The International Airport Authority of India4, a similar
question was raised before the court that whether International Airport Authority is a
state. The court through J.Bhagwati laid down the following test to determine whether a
body is included within ‘other authorities’ and comes within the definition of ‘state’ :

• The financial assistance given by the State and magnitude of such assistance;

• If any usual or extraordinary assistance is provided by the State’;

• Nature and extent of control of management and policies of the corporation by the state;

• The state conferred or state protected monopoly status;

• The function carried out by the corporation would ascertain whether the body is an

instrumentality or agency of the state or not;

• If one of the body is transferred to the government.

• The above-said parameters broadly determine whether an authority is ‘other authority’ as

per the definition of ‘state’ under Article 12. Considering these tests, International

Airport Authority was held to be ‘state’.

In Executive Engineer State of Kerala v. K. Somaselty5, it was held that the term industry does

not comes under the purview of article 12, unless it was declared to be an instrumentality or

agency of state.

4 Ramana Dayaram Shetty vs The International Airport ... on 4 May, 1979 AIR 1628, 1979
SCR (3)1014
5 The Executive Engineer (State Of ... vs K. Somasetty & Ors on 2 May, 1997)

MEMORIAL ON BEHALF OF PETITIONER Page 17

In BCCI v. Zee Telefilms Ltd6., the Supreme court of India ruled that the Indian cricket board
was not a 'State’ as defined under Article 12 of the Indian Constitution and, hence, cannot be
sued for alleged violation of fundamental rights.

There is much controversy as to the meaning and import of the term "other authorities".

In the case of University of Madras v. Shanta Bai7, the Madras High Court held that the term

"other authorities" should be construed ejusdem generis with the Government or Legislature and

so construed can only mean authorities exercising governmental functions. This view of the

Madras High Court has not been accepted by the Supreme Court. (Ujjambai v. State of U P8,

AIR 1962 SC 1621)

The Supreme Court has made it clear that the doctrine of ejusdem generis cannot be

applied in the interpretation of the term "Other Authorities". The Supreme court has, thus it

rejected the view that the term "other authorities" includes only those authorities which exercise

governmental sovereign functions (Ujjambai case). The Supreme Court (Electricity Board v.

Mohanlal) has held that the term "other authorities" includes all the authorities created by the

Constitution or Statute and on whom powers are conferred by law, whether or not they are

performing governmental function. Thus it is almost settled that the constitutional or statutory

authorities on whom powers are conferred by law are included within the meaning of the term

"other authorities".

6 Zee Telefilms v. Union of India 2005 AIR SCW 2985

7 The University Of Madras v. Shantha Bai And Anr AIR 1954, Mad 67
8 Ujjambai v. State of U P, AIR 1962 SC 1621

MEMORIAL ON BEHALF OF PETITIONER Page 18

In a case, Tekraj Vasandi v. Union of India9, the Institute of Constitutional and Parliamentary

Studies registered under the Societies Registration Act is neither an agency nor instrumentality

of the State and therefore, it is not a state for the purpose of Article 12.

The Petitioner company is not a creation of any statute, it is incorporated under the Companies

Act, as a private limited company. Further no share capital is held by govt. in such private

companies and they do not take a penny from the Govt. so the question of financial aid is laid to

rest then and there, In addition to this there is no monopoly of the company, the state has not

given any monopoly or the state doesn't protects any monopoly which does not exist, there is no

law barring any other company in running the same business hence there is no issue of

monopoly. Hence the private concerns are not state.

The Petitioner, Chamber of Private Sector is thus contending that, Private Sector

Companies do not fall under the definition of State.

It is humbly prayed before the Hon’ble court that the Private sector concerns is not a ‘state’ for

the purpose of part-III of the Constitution.

9 Tekraj Vasandi Alias K.L. v. Union Of India & Others 1988 AIR 469, 1988 SCR (2) 260

MEMORIAL ON BEHALF OF PETITIONER Page 19

ISSUE 2.

The Act violates the fundamental right to carry on business.

Definition of Article 19(1)(g)

Freedom to practice any profession, or to carry on any occupation, trade or business.

Article 19(1) of the Constitution of India guarantees six fundamental freedoms to every citizen of

India, namely-

1. Freedom of speech and expression;

2. Freedom to assemble peacefully and without arms;

3. Freedom to form associations, unions or co-operative societies;

4. Freedom to move freely throughout the territory of India;

5. Freedom to reside and settle in any part of the territory of India, and

6. Freedom to practice any profession, or to carry on any occupation, trade or business.

These six fundamental freedoms are the natural and basic freedoms inherent in the status of a

citizen. However, these freedoms are not absolute or uncontrolled but are subject to certain

reasonable restrictions.

MEMORIAL ON BEHALF OF PETITIONER Page 20

Explanation:

Scope of Article 19(1)(g):

What’s included and what’s not

1. The right to carry on a business also includes the right to shut down the business.

In Excel Wear v. Union of India (1978)10, the Supreme Court declared Section 25-O of

Industrial Disputes Act, 1947, which required an employer to take prior permission from

the government for closure of his industrial undertaking, as unconstitutional and invalid

on the ground that it violated Article 19(1)(g).

2. There is no right to hold a particular job of one’s choice. For example, in the case of

closure of an establishment, a man who has lost his job cannot say that his fundamental

right to carry on an occupation is violated.

3. There is no right to carry on any dangerous activity or any antisocial or criminal activity.

4. No one can claim a right to carry on business with the government.

5. The right to trade does not include the right of protection from competition in trade.

Thus, loss of income on account of competition does not violate the right to trade under

Article 19(1)(g).

10 Excel Wear v. Union of India (1978)10, 1979 AIR 25, 1979 SCR (1)1009

MEMORIAL ON BEHALF OF PETITIONER Page 21

The Hon’ble Supreme Court in Vishaka v. State of Rajasthan (1997)11 has observed that the
sexual harassment of working women in workplaces violates the fundamental right under Article
19(1)(g). In this case, comprehensive guidelines and binding directions were issued by the court
to prevent the incidents of sexual harassment of women at workplaces in both public and private
sectors.

Definition of Article 19(6) - which is a reasonable restriction to Article 19(1)(g)

Reasonable restrictions on freedom of profession, occupation, trade or business

Article 19(6) provides that the fundamental right under Article 19(1)(g) can be restricted in the

following ways:

1. By imposing reasonable restrictions in the interest of the general public.

2. By state monopoly: Sub-clause (ii) of Article 19(6) enables the state to make laws for

creating state monopolies either partially or completely in respect of any trade or business

or industry or service. The right of a citizen to carry on trade is subordinated to the right

of the state to create a monopoly in its favor.

Also, Sub-clause (i) of Article 19(6) empowers the state to lay down, by law, “the

professional or technical qualifications necessary for practicing any profession or carrying on

any occupation, trade or business”.

11 Vishaka V State of Rajasthan ,& Ors on 13 August, 1997

MEMORIAL ON BEHALF OF PETITIONER Page 22

In State of Gujarat v. Mirzapur Moti Kureshi Kasab Jamat (2005),12 the Supreme Court has

held that the expression ‘in the interest of general public’ in Article 19(6) is of wide import

comprehending public order, public health, public security, morals, economic welfare of the

community and the objects mentioned in Part IV of the Constitution.

Test of Restrictions under Article 19(2) to 19(6)

The restrictions to be imposed on the fundamental freedoms under Article 19(2) to Article 19(6)

must satisfy the following tests:

1. The restriction must be imposed by or under the authority of a law duly enacted by the

appropriate legislature. The law authorizing the restriction must be reasonable.

2. The restriction imposed must be for the particular purpose or object envisaged in the

specific clauses, i.e., Article 19(2) to 19(6). There has to be a reasonable nexus between

the restriction imposed and the objects mentioned in the respective clause.

3. The restriction must be reasonable.

Connecting this with facts of our case with reference to Kalyana State Equal Opportunity of

Employment in Private Sector,

12 State Of Gujarat vs Mirzapur Moti Kureshi Kassab ... on 26 October, 2005

MEMORIAL ON BEHALF OF PETITIONER Page 23

The Kalyana State Equal Opportunity of Employment in Private Sector Act, 2021 is violating

Article 19(1)(g) on the following grounds:

1. Every person who is going to employ people and conduct business needs to have his own

freedom to appoint people of his choice. He should be his own master and decision making

power should lie within his scope to conduct his business or operations effectively and

profitably.

If the private sector concerns are going to follow the act, the following are the consequences

a. There is a feature which states that 50% of skilled jobs and 80% of the unskilled job

reservations are to be given for the locals, which seems to be highly unreasonable as 80% of

unskilled reservations would mean loss of freedom to recruit the staff of choice and compromise

with the employee's performance leading to economic losses. Also if the 50% skilled employees

are not available in the state of Kalyana, and that skill is not listed in the skilled jobs notification

of the state, the employer is not able to understand from where he needs to appoint the remaining

skilled employees.

b. No guidelines on what is to be done when there is a shortfall of 50%, whether can i employ

from other states and how many people i can employ etc. On these reasons, the act is once again

silent.

c. If the employer is not able to employ, skilled employees from the state of Kalyana then who is

going to compensate for the economic losses caused due to nonperformance of work, breach of

contracts arising out of shortage of employees which results, out of a feature in the act, which

restricts employer from hiring from other states and depend only upon the scare resource pool of

MEMORIAL ON BEHALF OF PETITIONER Page 24

skilled employees from the State of Kalyana. Already the facts say, even though much of the

employment was generated, it was of no use for the people of Kalyana, as they were not used to

these types of new employments. The facts say that the locals were employed majorly only in

clerical, non-skilled and menial jobs.

d. If a meritorious candidate is honing multi skills and these skills are not in the authorised skill

list of the state, then there is a legal difficulty to recruit that employee simply because his skill is

not listed in the state skill to which the act applies, also if that employee is appointed, then he

will be performing both state listed skill jobs and state unlisted skill jobs. The Act is silent on

this.

e. Also the Act is silent on other aspect where Kalyana being a welfare state is not ready to take

up this responsibility of compensating employers whose businesses are prone to loses resulting

out of a unclear (like skilled job list) features in the act.

With these above mention problems and this kind of situation it becomes problem to continue

business in a state

Also some more questions like "What if I the employer is not able to fulfill the obligations, then

if is incurring losses, then when on returning the land, will the state compensate them is the

question which this Act fails to answer. Who will incur the costs?

Also how to return the benefits, and How will the employer return the benefit if loss caused due

to labor troubles arising out of direct consequences of the act. where also taken huge loan to start

the private sector.

MEMORIAL ON BEHALF OF PETITIONER Page 25

 Any restrictions imposed by law by the State on the right guaranteed under Article

19(1)(g) can be challenged on the ground either that the restriction is unreasonable, or that the

restriction is in excess of the right, or that even activities which are not pernicious have been

included within the sweep of restrictions, or that the procedure laid down for curbing any activity

is in just, arbitrary or unreasonable (Rameshwarlal Haralka v. Union of India13 AIR 1970, Cal

520; see also S.S and Ship Management Pvt. Ltd v. Board of Trustees14 AIR 1989 Cal 212 at

p.222; P.A. Kannan v. State15 AIR 1989 Knt 285 at p.290.) - Act doesn't satisfy the test of

reasonable restrictions under A.19(6).

Reasonableness of restriction is to be determined in an objective manner and from the

standpoint of interest of the general public and not from the standpoint of the interests of persons

upon whom the restrictions have been imposed or upon abstract considerations. A restriction

cannot be said to be unreasonable merely because in a given case, it operates harshly. In

determining whether there is any unfairness involved, the nature of the right alleged to have been

infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil

sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at

the relevant time enter into judicial verdict. The reasonableness of the legitimate expectation has

to be determined with respect to the circumstances relating to the trade or business in question.

Canalization of a particular business in favor of even a specified individual is reasonable where

the interest of the country are concerned or where the business affects the economy of the

country.

13 Rameshwarlal Haralka v. Union of India AIR 1970, Cal 520;

14 S.S and Ship Management Pvt. Ltd v. Board of Trustees AIR 1989 Cal 212 at p.222;

15 P.A. Kannan v. State AIR 1989 Knt 285 at p.290

MEMORIAL ON BEHALF OF PETITIONER Page 26

 It is humbly prayed before the Hon’ble court that this Act violates the fundamental

right of the petitioner to carry on business.

ISSUE 3.

The government is estopped from superimposing the Act on the private sector after

attracting them to invest in the state with concessions.

The doctrine of promissory estoppel is an equitable doctrine. Like all equitable remedies,

it is discretionary, in contrast to the common law absolute right like right to damages for breach

of contract. The doctrine has been variously called 'promissory estoppel', 'equitable estoppel',

'quasi estoppel' and 'new estoppel'. It is a principle evolved by equity to avoid injustice and

though commonly named 'promissory estoppel', it is neither in the realm of contract nor in the

realm of estoppel.

The true principle of promissory estoppel is where one party has by his words or conduct

made to the other a clear and unequivocal promise which is intended to create legal relations or

effect a legal relationship to arise in the future, knowing or intending that it would be acted upon

by the other party to whom the promise is made and it is in fact so acted upon by the other party,

the promise would be binding on the party making it and he would not be entitled to go back

upon it. It is not necessary, in order to attract the applicability of the doctrine of promissory

estoppel that the promisee acting in reliance of the promise, should suffer any detriment. The

only thing necessary is that the promisee should have altered his position in reliance of the

promise.

MEMORIAL ON BEHALF OF PETITIONER Page 27

In M/s Motilal Padampat Sugar Mills v. State of Uttar Pradesh16, it was held that, Waiver as to a

person’s right can operate only when person granting it has full knowledge of his right and

intentionally abandons it, either expressly or impliedly.

The case of Motilal Padampat Sugar Mills v. State of U.P. is a trendsetter regarding

the application of the doctrine of promissory estoppel against the Government. In this case the

Chief Secretary of the Government gave a categorical assurance that total exemption from sales

tax would be given for three years to all new industrial units in order them to establish

themselves firmly. Acting on this assurance the appellant sugar mills set up a hydrogenation

plant by raising a huge loan. Subsequently, the Government changed its policy and announced

that sales tax exemption will be given at varying rates over three years. The appellant contended

that they set up the plant and raised huge loans only due to the assurance given by the

Government. The Supreme Court held that the Government was bound by its promise and was

liable to exempt the appellants from sales tax for a period of three years commencing from the

date of production.

However, in present case, there was no such waiver of rights by plaintiff: he didn’t have any full

knowledge of his rights to exemption under the assurance given by the State. Firstly, the doctrine

of promissory estoppel is not so well defined in scope and ambit and so free from uncertainty

that plaintiff must have had full knowledge of his rights. Secondly, there is no presumption that

every person knows the law; there is the rule that ignorance of law is not an excuse which is

altogether different in its scope and application.

16 Motilal Padampat Sugar Mills vs State Of Uttar Pradesh And Ors, 1979 AIR 621, 1979

SCR (2) 641

MEMORIAL ON BEHALF OF PETITIONER Page 28

Where the government makes a promise, even in sovereign, administrative or governmental

capacity, knowing or intending that it would be acted on by the promisee and, in fact,

promisee, acting in reliance on it, alters his position, the Government will be abstained to go

back on its promise if it will be inequitable to do so, notwithstanding that there is no

consideration for the promise and promise is in fact is not recorded in form of a formal

contract as required by Art.299 of Constitution. The defense of ‘executive necessity’ which

holds that Government can’t fetter its future executive action to be determined by needs of

community at relevant time do not release government from being bound by such promises for it

will be ultra-vires to rule of law and justice.

The Petitioner contends that in the year 2018 when the state government of Kalyana adopted a

major policy decision with anticipating the huge investments, it was not having any intention of

bringing this Act in place But the respondent has bought the Act without even

consulting/discussing with the Petitioners hence they estopped now from their promise.

The petitioner contends that the claim made by respondent saying the respondent is interested in

safeguarding the interests of Petitioner. But in reality there is absolutely zero intent as the fact of

the case shows that there were concessions offered 3 years before to attract the Investors but

now through this Act they are restricting us to comply under 3 more years if not complied

petitioner need to discard the benefits from the government.

MEMORIAL ON BEHALF OF PETITIONER Page 29

 It is humbly prayed before the Hon’ble court that government to be estopped from

superimposing the Act on the private sector after attracting them to invest in the state with

concessions.

ISSUE 4.

The rule prohibiting the employees from joining political parties including student’s wings

of the political parties is ultravires the Act and also the Constitution

Article 19(1)(c) - provides Freedom to form Associations or Unions (97th

amendment act 2011) or Co-operative societies.

The citizen's right of association with political parties is not suspended while he is under

government employment, though this right is subject to reasonable restrictions and cannot be

abridged without hearing (Director of Education v. Rawat Prakash Pandey17

The Supreme Court held in Narendra Kumar v. Union of India18 that a law affecting

fundamental right may be held bad on the ground of uncertainty and vagueness

The right to form associations is considered as the life-blood of democracy, as without

such a right, the political parties critical to the functioning of a democracy cannot be formed.

The right to form associations and unions includes the right to form companies, societies, trade

unions, partnership firms and clubs, etc. The right is not confined to the mere formation of an

association but includes its establishment, administration and functioning as well.

17 Director of Education v. Rawat Prakash Pandey 1971 ALJ 155:(1971) st of Lab I.C 975:
AIR 1971 All 371

18 Narendra Kumar And Others vs The Union Of India And Others 1960 AIR 430, 1960
SCR (2) 375

MEMORIAL ON BEHALF OF PETITIONER Page 30

Some of the facets of the right to form associations are as follows:

• The right to form associations means the right to be a member of an association

voluntarily. It also includes the right to continue to be or not to continue to be a member

of the association.

In Damyanti v. Union of India(1971)19, the Supreme Court upheld the right of the

members of an association to continue the association with its composition as voluntarily agreed

upon by the persons forming the association.

• The right to form an association includes the right not to be a member of an association.

• The right under Article 19(1)(c) does not prohibit the state from making reservations or

nominating weaker sections into the cooperative societies and their managing

committees.

• No prior restraint can be imposed on the right to form an association.

• There is no fundamental right of recognition of the association or union by the

government.

• The right to form an association includes no right to achieve the objects of the association.

19 "Damyanti Naranga vs The Union Of India And Others on 23 February, 1971 Equivalent citations:
1971 AIR 966, 1971 SCR (3) 840

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Reasonable restrictions on right to form association

According to Article 19(4), reasonable restrictions can be imposed on the right to form

associations, unions and co-operative societies, etc. on the following grounds:

1. In the interests of the sovereignty and integrity of India, or

2. In the interests of public order or morality.

Rules of Kalyana State Equal Opportunity of Employment in Private Sector Rules, 2021

(a) Ultravires to the Act

(b) Ultravires to the Constitution

Rules framed by the government is in excess of the legislative powers delegated to it under the

Act. So the rules are unconstitutional

Rules framed by the government is in excess of legislative power delegated to it under the Act

The reasonable restrictions provided in Article 19(4) which can be imposed on violation of

public order or morality in an act, where there is no disturbance on public order, restrictions held

by the act renders the act unconstitutional.

The fundamental freedom under Article 19(1)(c) which grants the freedom to join any union

association but the entire Act does not speak anything about the student wings but the (Rules)

speaks about student wings which is excessive use of delegation and making the rules ultravires

to the Act and thereby rendering the act unconstitutional.

Advantages of politics

It provides leaders to societies

MEMORIAL ON BEHALF OF PETITIONER Page 32

These leaders govern society one way or other.

More successful leaders often formulate governments and legislate policies for the people.

Socializing people with similar point of view in one place.

Negotiation skills (wherein two parties can conclude any subject with a favorable outcome).

What are political parties?

A political party is an organisation that co-ordinates candidates to compete in a particular

country's elections. It is common for the members of a party to hold similar ideas about politics,

and parties may promote specific ideological or policy goals.

What are student wings?

A student wing is a subsidiary, autonomous or independently allied front of a larger organization

that is formed in order to rally support from students and focus on student specific issues

typically of those attending college / university.

Student wings may also be discussion forums for student members and supporters of the

organization to debate policy and ideology

How student wings are different from political parties?

Even though the ideologies are aligned from political parties, student wings will not be

competing in any elections where political parties compete.

The primary intention / purpose of student wings is to safeguard or protect the concerns of the

students in college or university.

MEMORIAL ON BEHALF OF PETITIONER Page 33

 The S.C has struck down the proviso inserted in Rule 3 of the H.P Ceiling on Land Holings

Rules.20 1973 the notification by Registrar, District Kangra declared them Invalid, they being

Ultra Vires the Powers of The H.P Ceiling of land Holdings Act, 1973 as they were outcome

of unguided general delegation and did not subserve any purpose sought to be achieved by

the parent Act.

It is humbly prayed before the Hon’ble court that rule prohibiting the employees from

joining political parties including student’s wings of the political parties is ultravires the

Act and also the Constitution.

20. Kunj Behari Lal Butail v. State of U.P(2000) 3 SCC 40 para 15

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PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities

cited, it is most humbly prayed and implored before the Hon’ble High Court of Kalyana that it

may be graciously pleased to adjudge and declare that:

I. Private Sector Concerns, does not fall under the definition of State under Article 12 of the

Constitution of India

II. The Kalyana State Equal Opportunity of Employment in Private Sector Act, 2021

violates the fundamental right to carry on business as guaranteed under Article

19(1)(g) of the Constitution of India

III. The government should be estopped from superimposing the act on the private sector.

IV. The Kalyana State Equal Opportunity of Employment in Private Sector Rules, 2021

violates the fundamental right to form unions as guaranteed under Article 19(1)(c) of the

Constitution of India

For this act of Kindness, the PETITIONER shall be duty bound forever pray.

Place: Kalyana sd /-

Dated: 28th April 2022 Counsel for Petitioner

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