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3rd Justice Hidayatullah Memorial National Moot Court Competition, 2010

IN THE HONOURABLE SUPREMEHIGH COURT OF INDICANAJUDICATURE

ADVISORY JURISDICTIONT NEW DELHI __________________________________________________________________________ Under Article 226 of the Constitution of India __________________________________________________________________________ IN THE MATTER OF Bhaarat Ispat U.K Steels (APPLICANTS)

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VERSUS Satguru Steels Vinayak & Co Ltd Rajshree Enterprises. Chennai Steels India Steels K&S Enterprises Government of India (RESPONDENTS)

MEMORIAL SUBMITTED ON BEHALF OF APPLICANTS

1MEMORUNDUM ON BEHALF OF STATE Of KHAMBAT AND ORS.

COUNSELS FOR APPLICANTS

TABLE OF CONTENTS

Page No.s LIST OF ABBREVIATIONS................................................................................... LIST OF AUTHORITIES LEGISLATIONS.................................................................................. INTERNATIONAL AGREEMENTS.................................................. CASES.................................................................................................. BOOKS................................................................................................. ARTICLES............................................................................................ WEBSITES........................................................................................... iii) iii) iv) v) v) vi) vii) iii)

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

STATEMENT OF FACTS................................................................................................ viii) ISSUES RAISED....................................................................................................... SUMMARY OF ARGUMENTS............................................................................... ARGUMENTS ADVANCED..................................................................................... I. THE TWO WRITS SHOULD NOT BE HEARD BY THE SAME BENCH............................................................................................................ II. THE HIGH COURT SHOULD DECIDE ON THE ISSUE OF VIOLATION OF INDIAS OBLIGATION UNDER THE WTO. ............................................................................................................................ 1 1 x) xi)

III. THERE WAS NO DUMPING OF STEEL IN INDIA WHICH CAUSED INJURY TO THE DOMESTIC INDUSTRY SUPPLYING LIKE PRODUCT...................................................................................................... IV. THE GOVERNMENTS ORDER OF SUPERSEDING THE COMPETITION COMMISSION WAS NOT LEGAL.................................................................................................................... 11
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V. THE COMPETITION COMMISSIONS DECISION REGARDING SECTION 3 AND SECTION 4 OF THE COMPETITION ACT WAS PROPER.......................................................................................................... LIST OF ABBREVIATIONS ADA AIR Annex. Art. B.I.S.D GATT Govt. Honble SCC Sec. U.K. U.O.I U.S. Vol. WTO All India Reporter Annexure Article Basic Instruments and Selected Documents General Agreement on Tariffs and Trade, 1994 Government Honourable Supreme Court Cases Section United Kingdom Union of India United States Volumeolume World Trade Organisation Anti-Dumping AgreemenNt 12
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LIST OF AUTHORITIES LEGISLATIONS Article 245(1) Constitution of indicanaClayton Antitrust Act, 1914 (United States legislation) List II Seventh Schedule Constitution of Indicana List I Seventh Schedule ,Constitution of IndicanaCompanies Act, 1956 Competition Act, 2002
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Customs Tariff (Identification, Assessment And Collection Of Antidumping Duty On Dumped Articles And For Determination Of Injury) Rules, 1995 Customs Tariff Act, 1972
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INTERNATIONAL TREATIES AND AGREEMENTS Agreement for the Implementation of the WTO Anti Dumping Agreement General Agreement On Tariff And Trade, 1994 Agreement On Trade-Related Investment Measures Vienna Convention On Law Of Treaties, 1969

LIST OF CASES Indian

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In re Modern Food Industries (India) Ltd RTP Enquiry No. 78/1992, decided on 7-21996 Jolly Verghese v. Bank of Cochin (1980 (2) SCC 360 Karan Dileep Nevatia v The Union of India (UOI) 2010(112)BomLR127 Maganbhai Ishwarbhai Patel vs Union Of India And Anr 1969 SCR (3) 254 Narendra Kumar v. Union of India AIR 1989 SC, 2138 Peoples Union for Civil Liberties v. Union of India, AIR 1997 SC 301 Re: All India Organisation Of Chemists And Druggists And Ors (1996) 21 CLA 322 State of West Bengal v. Kesoram Industries Limited and Ors 2004) 10 SCC 201 Tata Engineering and Locomotives Co. Ltd v. The Registrar of the Restrictive Trade Agreement (1977) 47 Com Cas 520 (SC) Young Medicos Cultural Organisation v. Pharmaceuticals Wholesalers' Association [1993] 3 Comp LJ 123 State of Bombay vs RMD AIR 1958 SC 699 Calcutta gas company vs state of west Bengal 1962 AIR 1044 Bharat Hydro Power Corpn, Ltd vs State of Assam (2004) 2 SCC 533 SR Bomai vs Union Of India AIR 1994 SC 1918
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United States Brown Shoe Co. Inc. V. US 384 US 316 International Boxing Club v. United States 358 US 242 (1959) Standard Oil Co. V. United States 337 US 293, 314 (1949)

CanadianWTO Appellate Body Report, Korea Taxes on Alcoholic Beverages (Korea Alcoholic Beverages), WT/DS84/AB/R, 17 February 1999 Panel report in United States- Measures Affecting Importation, Internal Sale and the Use of Tobacco, B.I.S.D. (41st supp., col. 1) 131 (1997) Thailand H-Beams case, WT/ DS122/AB/R, 5th April 2001,
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http://docsonline.wto.org USHot rolled Steel case WT/DS184/AB/R 23rd August 2001,

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http://docsonline.wto.org BOOKS AND DIGESTS

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Peter Van Den Bossche, THE LAW AND POLICY OF THE WORLD TRADE ORGANISATION-TEXTS, CASES AND MATERIALS, (Cambridge university press, New York, 2005)

OECD Dictionary US Department of Natural Gas Handbook Professor Raj Bhala, MODERN GATT LAW: A TREATISE ON THE GENERAL AGREEMENT ON TARIFFS AND TRADE, Thomson Sweet and Maxwell,2005 London

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Professor John.H Jackson , WORLD TRADE AND THE LAW OF THE GATT, BobbsMerill Company, Inc. USA.(1969) Rdiger Wolfram, et. al., WTO:TECHNICAL BARRIERS AND SPS MEASURES, Martinus Nijhoff Publishers, 2007 Daillier Patrick And Pellet Alain: DROIT INTERNATIONAL PUBLIC, (Public International Law) (7th edn 2002) paris Neeraj Varshney, ANTI-DUMPING MEASURES UNDER THE WTO REGIME, 2007, Universal Law Publication Philip Bentrey and Aubrey Silverstone, ANTI-DUMPING AND COUNTERVAILING ACTION:LIMITS IMPOSED BY ECONOMIC AND LEGAL THEORY, (Edwar Elgar Publishing 2007, Cheltenham)

TR Ramappa, COMPETITION LAW IN INDIA, (Oxford University Press, 2009) Sm Dugar, COMMENTARY ON MRTP LAW, COMPETITION LAW AND CONSUMER PROTECTION LAW, P. 726(Lexis Nexis, 2009) WTO Analytical Index: Guide to WTO Law and Practice Vol. I, 138(2003) Organisation mondiale du commerce Cambridge University Press, MP Jain & SN Jain, PRINCIPLES OF ADMINISTRATIVE LAW, (6TH ed., Wadhwa Nagpur, 2007

ARTICLES

Web Ratnakar Adhikari, The Local Content Paradox at the WTO: A Minor Lapse

or Lapse or Organised Hypocrisy?, The International Centre for Trade and Development<http://ictsd.org/i/news/bridges/11999/>

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 Wayne Gable, Myths about international trade in Robert W. McGee, Why Trade Deficits Don't Matter (1996). Policy Analysis No. 6. Available at SSRN <http://ssrn.com/abstract=2138

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ordoi:10.2139/ssrn.2138
Julien Chaisse, Effect of WTO law in India: Ensuring the Conformity of Domestic Law with World Trade Organisation Law - India as a Case Study (December 15, 2005). CSH Occasional Paper Volume 13 New Delhi: Rajdhani Press/CSH, 2005.p 27 Available at SSRN<http://ssrn.com/abstract=1494908 > Thomas Friedman, In Defence of Dumping. Newsweek February 1978

Surabhi Malik, Concept Paper: Definition And Delineation Of Relevant Market In Competition Analysis, (September 2007),

http://www.cci.gov.in/images/media/ResearchReports/surabhi_20090119114030.pdf
Shilpa Bhadoria, Glossary Of Terms Related To Indian Competition Law(2007) <http://www.cci.gov.in/images/media/ResearchReports/shilpa_report_20080730103931.pdf > Shalini Joseph, Balancing Regulatory Needs And Business Interests (December 2008)<http://www.cci.gov.in/images/media/ResearchReports/balancing_regulatory_shalini_2

0080715110959.pdf
Willard E. Stone, Legal Implication of Intracompany pricing, The Accounting Review, Vol. 39, No. 1 (Jan., 1964), pp. 38-42 Note on the The Legality of Discrimination under the Robinson-Patman Act,Columbia Law Review Vol. 36, No. 8 (Dec., 1936), pp. 1285-1321 Web Resources
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Agreement on Trade Related Investment Measures, <http://www.wto.org/english/docs_e/legal_e/18-trims.pdf http://www.competition-commissionindia.nic.in/advocacy/Booklet_AbuseOfDominance11032008.pdf Introduction to General Agreement on Tariff and Trade, 1947 <http://www.wto.org/english/docs_e/legal_e/gatt47_e.pdf www.geoexpress.com
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STATEMENT OF JURISDICTION
The Hon'ble Court has advisory jurisdiction in the present matter under Article 143(1) of the Constitution of Indicana
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Article 143 states as follows:

Article 143. Power of President to consult Supreme Court.

(1). If at any time it appears to the President that a question of law of fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the supreme Court upon it, he may refer the question to that Court for consideration and the C ourt ma y, af te r such hea ring as it thinks f it, report its opinion the re on.

The Counsels for the Applicants most humbly submit that the Honble High Court of Judicature, at New Delhi has the jurisdiction to try this present matter under Article 226 of the Constitution of India. This sincere submission of the counsel is further substantiated in the Written Submissions.

All of which is most respectfully submitted. Counsel for Applicants Place: New Delhi.

The laws of Union of Indicana are pari materia with that of Union of India

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STATEMENT OF FACTS
Doctrine of separation of powers has been adopted by Republic of Indicana as the basic feature of its constitution. The constitution also give forth a federal setup , with distribution of powers between central and the state governments. The executive is headed by the president, who is the Head of the state and exercise his powers directly through officers subordinate to him. The Legislative banch is divided into the lower house and the upper house. Both the state and union legislature and given power to legislate in their respective lists but both while making legislation can incidentally trench on each others subject. Such incidental encroachment need not make the legislation ultra vires . The Republic of Indicana has adopted similar pattern of internal governance and laws of India. The energy resources in Indicana are various conventional and non conventional sources and natural gas is one of the widely used resources. Natural gas is mainly used for transportation, heating homes, commercial buildings, power generation and industrial processing. State of Khambat one of the states in Indicana is the most prominent source of Natural gas in Indicana catering to 80% of the need throughout the country. For this purpose there is a well established processing and transportation network and related infrastructure , owned by companies ,government and public sector undertakings , the transportation for exploring , processing and transportation of natural gas from the state of Khambat to the rest of Indicana, It is for this reason to minimize the transportation costs , most of the industries using Natural gas and and LNG as their fuel source are located in the state of Khambat . Thus is in order to establish a improved gas transportation and supply system the state Legislature of Khambat state passed a state legislation by the name Khambat Gas ( Regulation of Transmission, Supply and Distribution) Act 2010, which came into force w.e.f September 15,2010. The objective of the enactment was regulation of transmission, supply and distribution of natural gas , in the interest of general public

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and to promote gas fuelled industry in the Khambat state, and for that purpose ,to establish Khambat Gas Regulatory Board and for matters connected therewith and incidental thereto. The legislature of the State of Khambat passed the said enactment by tracing its legislative competence under Entry 25 of List II of the seventh Schedule of the Constitution of Indicana. In counter action to the above energy welfare legislation which is called the Khambat Act, the union Government of Indicana under its regulatory power functions increased the transportation and basic prices of Natural Gas supplied by various companies throughout Indicana. Aggrieved by this arbitrary action of the Union Government to increase prices of Natural gas , the consumer Association of Oil and Natural Gas , Khambat filed a Writ Petition before the High court of Khambat wherein they Challenged the legislative competence of the Unioon to make laws which would enable the union government to increase the prices of Natural Gas. .

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ISSUES FOR ADJUDICATION

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I. Whether Natural Gas is a union subject or State subject and whether the state of Khambat and the other states have the legislative competence to make laws on Natural Gas and Liquiefied Natural Gas under Entry 5 of List II of the Seventh Schedule to the Constitution.

II. Whether Natural Gas in whichever physical form is a Union subject and whether Union has exclusive legislative power to enact laws on natural gas , including natural gas in all its forms viz. shale gas , coal bed methane etc.

III. Whether the Kambhat Gas ( Regulation of Transmission , Supply and Distribution) Act,2010 is ultra vires to the constitution being enacted without the legislative competence.

IV. Whether the states under the Union of Indicana are Sovereign entities entitled to use the natural resources within their territorial limits.

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SUMMARY OF ARGUMENTS
I. Whether Natural Gas is a union subject or State subject and whether the state of Khambat and the other states have the legislative competence to make laws on Natural Gas and Liquiefied Natural Gas under Entry 5 of List II of the Seventh Schedule to the Constitution.

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1. Article 245(1) confers the power on the state legislature to make laws for any part of the state. 2. Doctrine of territorial nexus widens the amplitude of the state legislative power to enact laws on questionable entries. 3. The state legislature should be allowed to make laws on natural Gas and LNG as it directly affects the welfare of its people. 4. The decision of the union government to increase the prices of transportation and basic prices of natural gas is an arbitrary step . Whether Natural Gas in whichever physical form is a Union subject and whether Union has exclusive legislative power to enact laws on natural gas , including natural gas in all its forms viz. shale gas , coal bed methane etc? 1. Natural gas is a very wide term and consists of various forms of gases not only petroleum related gases. 2. There are two types of natural gases associated and non- associated the later one has no connection with petroleum products. . V. Whether the Kambhat Gas ( Regulation of Transmission , Supply and Distribution) Act,2010 is ultra vires to the constitution being enacted without the legislative competence. I. 1. Entries itself are not authorities given by the constitution but they are area of legislation endowed by the constitution on different legislatures.

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2. The doctrine of pith and substance should be applied to check the objective and essence of the legislation. 3. Doctrine of harmonious interpretation should be applied to find the harmonize the contradicting entries .

VI. Whether the states under the Union of Indicana are Sovereign entities entitled to use the natural resources within their territorial limits. 1. the intent of the constituition framers about the federal structure. 2. Federalism is a essential feature of the constitution 3. Unjust to the owner of the resources to deprieve it from control over its gas wealth.

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II.

ARGUMENTS ADVANCED

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I. Whether Natural Gas is a union subject or State subject and whether the state of Khambat and the other states have the legislative competence to make laws on Natural Gas and Liquiefied Natural Gas under Entry 5 of List II of the Seventh Schedule to the Constitution.

5. The entry 25 of the State list in Seventh Schedule include Gas and Gas works Article 245 (1) of the constitution of Indicana states Subject to the provisions of this Constitution Parliament may make laws for the whole or any part of the territory of India and the Legislature of a State may make laws for the whole or any part of the State. 2 . The mentioned Article gives the power to the state legislature to enact laws for the parts of their state , the article gives the word whole which includes the things concerning the state within its territory. The state of Khambat holds the natural gas deposits thus the it comes under the purview of its legislature to frame laws on it. 1.1 The Doctrine territorial nexus is used to show the relation of the legislation passed by the state legislature and the its object. The doctrine of territorial nexus is applied to find out whether a particular state law has extra territorial operation. It signifies that the object to which the law applies need not be physically located within the territorial boundaries of the state , but what is necessary is that it should have a sufficient territorial connection with the state, but what is necessary is that it should have a sufficient territorial connection with the state. If there is a territorial nexus between the subject matter of the Act and the state making the law, then the staute in question is not regarded as having extra-territorial operation.3

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Article 245(1) Constitution Of India MP Jain Pg 529

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1.1.1

The state of Khambat which has 80%4 of the Natural Gas resources of Indicana is solely dependent on this resource for the development of its economy and welfare of its people. Numerous industries are flourishing in the state of Khambat which give employment to a very large number of people. Thus the connection of the law made by its legislature and the its relation with the sate of Khambat is clearly evident. The authority of state legislature to make laws on Natural gas has been backed by the judicial decision in The Calcutta gas company vs the state of west Bengal and ors 5 , the court pronounced that under entry 25 of list II the state legislature can pass any legislation on Gas and related industry .

1.1.2

The legislature of Khambat is competent to make laws on Natural Gas and Liquefied Natural Gas as it comes under the ambit of entry 25 of List II schedule 7 , in case the entry is ambiguous then the above arguments can be used in expand the purview of the entry. The doctrine of territorial nexus is upheld in the case State of Bombay Vs RMDC6 , where the state legislation was not struck down on the evident territorial nexus.

1.1.3

The step taken by the union government under its regulatory powers is an arbitrary step which will hamper the industries and common masses throughout Indicana as the major use of natural gas is in industries of importance and heating homes of people. The common people will be adversely affected by this step .

II.

Whether Natural Gas in whichever physical form is a Union subject and whether Union has exclusive legislative power to enact laws on natural gas , including natural gas in all its forms viz. shale gas , coal bed methane etc?

2.1

The Natural Gas is a very wide term , it not only includes gases associated with petroleum.

It is humbly submitted that; 2.1.1 Definition of Natural gas comprises gases, occurring in underground deposits, whether liquefied or gaseous, consisting mainly of methane. It includes both "nonassociated" gas originating from fields producing only hydrocarbons in gaseous
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Para 10 , Fact Sheet Calcutta gas company vs state of west Bengal 1962 AIR 1044 6 State of Bombay vs RMD AIR 1958 SC 699

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form, and "associated" gas produced in association with crude oil as well as methane from coal mines.7 The union list entry 53 states that Regulation and development of oilfields and mineral oil resources; petroleum and petroleum products; other liquids and substances declared by Parliament by law to be dangerously inflammable thus the union list only gives power to the central legislature to frame laws on petroleum related products , thus only associated form of natural gas comes under its purview, Natural gas of unassociated type does not comes under it. The state legislature under entry 25 of list II includes Gas and Gas works has the a uthority to legislate on Natural gas . 2.1.2 Raw natural gas comes primarily from any one of three types of wells: crude oil wells, gas wells, and condensate wells. Natural gas that comes from crude oil wells is typically termed associated gas. This gas can have existed as a gas cap above the crude oil in the underground formation, or could have been dissolved in the crude oil. Natural gas from gas wells and from condensate wells, in which there is little or no crude oil, is termed non-associated gas. Gas wells typically produce only raw natural gas, while condensate wells produce raw natural gas along with other low molecular weight hydrocarbons. Those that are liquid at ambient conditions are called natural gas condensate (sometimes also called natural gasoline or simply condensate. Natural gas is termed sweet gas when relatively free of hydrogen sulfide , some produced gas does contain this substance and thus is called sour gas Raw natural gas can also come from methane deposits in the pores of coal seams and especially in a more concentrated state of adsorption onto the surface of the coal itself. Such gas is referred to as coalbed gas or coalbed methane. Coalbed gas is a from of natural gas that is has being extracted from coalbed.
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2.1.3 As given in the issue Natural gas which is present in different forms also consists of Shale gas and Coal bed methane. Shale is called the rock that burns it is extracted in the gaseous and liquid form from the stones .It is independent of the petroleum extraction process and thus is not included in Petroleum, another type of Natural gas.
This difference has been reiterated in Borys v Canadian Pacific Railway Co. And Anr.10, hence this very well shows the legislative competence of the state legislature to make laws
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OECD Dictionary US department of Natural Gas Handbook 9 www.geoexpress.com 10 1953(1)All ER 451

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on he subject of natural gas and LNG. It was also said that natural gas is found in many

parts of assam in non associated form, thus it again shows that natural gas is such a wide term, Natural gas is used as petroleum substitute thus it is not exactly related to petroleum.Thus it clearly states that natural gas consists of many different gases and the most of its kind will come under entry 25 list II Seventh schedule rather than entry 55 of List I Seventh Schedule which consists only a very narrow variety of natural gases.

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Whether the Kambhat Gas ( Regulation of Transmission , Supply and Distribution) Act,2010 is ultra vires to the constitution being enacted without the legislative competence. 3.1 There has not been dumping of steel by U.K Steels or its subsidiaries. It is humbly submitted that; 3.1.1 Ultra vires is defined as beyond the legal power or authority of a person or official or body
etc .When any legislation is exceeding its limit or authority , it jumps the legal restrictions on

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it.But the legislation Khambat Act is not exceeding its legal limit as raised in the issue. Entries itself are not powers of legislation but fields of legislation. Thus one entry could not be interpreted in a way that it cancels out or nullifies the other entry or make it meaningless. To determine whether the law passed is ultra vires or not the court applies the rule of Pith and Substance , which ascertains its true nature and character11 . To examine whether an enactment has impinged on the field of the other legislature. For applying the principle of pith and substance regard is to be had (i) to the enactment as a whole (ii) to its main objects (iii) to the scope and effects of its provisions 12 . Thus the Khambat Act can be analyzed by the above conditions. The Act is on the lines of a Energy welfare legislation, which is aimed at the welfare of the people of khambat as and the industries in the state of Khambat. The gas fuelled industry consists of industries related to waste treatment and
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MP JAIN Pg 591 Bharat Hydro Power Corpn, Ltd vs State of Assam (2004) 2 SCC 533

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incineration, metals preheating (particularly for iron and steel), drying and dehumidification, glass melting, food processing, and fueling industrial boilers. Natural gas may also be used as a feedstock for the manufacturing of a number of chemicals and products, thus the large number of industries concentrated in the state of Khambat thus makes it a very important industrial hub in the country, thus the objective of the legislation which deals with regulation , supply and transmission of natural gas is clearly required as it aims to make the energy supply system a well organised touch. It has been enunciated by the Supreme court in Premchand Jain v. R.K Chabra as follows As long as the legislation is within the permissible field in ith and substance, objection would not be entertained merely on the ground that while enacting legislation, provision has been made for a matter which though germane for the purpose for which competent legislation is made, it covers an aspect beyond it. In a series of decisions this court has opined that if an enactment substantially falls within the powers expressly conferred by the constitution upon the legislative enacting it, it cannot be held to be invalid merely because it incidently encroaches on matters assigned to another legislature. The entry of list II Gas and Gas works should be treated in a wider scope and meaning . Applying the concept of Harmonious interpretation of entries It is a sound canon of interpretation that courts must try to avoid a conflict between theprovisions of Statute. he rule of reconciliation on the Entries was propounded for the first time in the case of in re C.P. and Bera Act .1 It is the province of the courts to determine the extent of the authority to deal with subjects falling within the legislative purview of each legislature. To avoid conflict, the Courts should read Entries of two Lists together and the language of one Entry can be interpreted, and modified too, with the help of another Entry. Interpreting Entries 24 and 25 of the State List harmoniously, the Supreme Court held that gas and gas works being in Entry 25 would not fall in the general Entry 24Industry and observed14: It is also well settled that widest amplitude should be given to the language of Entries but some of the entries in the different Lists , may overlap and sometimes may also appear to be in direct conflict with each other, it is then duty of this court to reconcile the entries and bring about harmony between them. Natural gas as explained in the advanced arguments 2 , consists of different types of gases, it petroleum related natural gas is one of its kind , thus due to this there is a slight encroachment of both the entry no 53 and 25 of Union list and
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10AIR FC 19399 14 Calcutta Gas Co. v. State of W.B., AIR 1962 SC 1044

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state list respectively. The step taken by the state of Khambat is in good faith , it seeks the welfare of its people and the state as a whole. If the production in the state of Khambat of Natural Gas rises, it will itself spread to the rest of Indicana . Thus the legislation paased by the state legislature of Indicana is not Ultra Vires.
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VII. Whether the states under the Union of Indicana are Sovereign entities entitled to use the natural resources within their territorial limits.

It is humbly submitted that; T o elaborate on this issue it is necessary to retrospectively go back to intent of the

constitutional framers about the federal structure of Indicana . The states should have a independent framework which gives them the independence to develop and prosper. The development and prosperity of the sates will give prosperity to the whole union. To back this argument ,would like to put forward the speech of Dr Ambedkar in the constituent assembly I think it is agreed that our constitution , notwithstanding the many provisions which are contained in it whereby the centre has been given powers to override the provinces ,nonetheless is a fedral constitution it means this , that the provinces are as sovereign in their field which is left to them by the constitution as the centre is in the field which is assigned to it. In other words, barring the provisions , which permit thee centr to override any legislation that may be passed by the provinces , the provinces have a plenary authority to make any law for the peace ,order and god government of that province. Now when once the constitution makes the provinces sovereign and gives them plenary powers, the intervention of the centre or any other authority must be deemed to be barred , because that would be an invasion of the sovereign authority of the province .That is a fundamental proposition, which we must accept15 It is very evident from the above speech of the father of the constitution that it is the essence of the constitution to give the states in the union their autonomy in their internal governance, in the case state of Khambat has passed the legislation for its benefit and for the good of the people. Holding 80% of the Natural gas resources of Indicana , Khambat state holds an implied authority to control things which comes under it , depriving Khambat state to have a control over its resources will amount to unjust treatment to it .
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15

Constituent assembly debate on august 3 1949

rd

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1MEMORUNDUM ON BEHALF OF STATE Of KHAMBAT AND ORS.

In the landmark judgement of SR Bomai Vs Union of India , Justice Sawant and Justice kuldip singh held-Democracy and Federalism are essential features of Constitution of Indicana. The overriding powers of the centre in the event of emergency do not destroy the federal character of the Indian Constitution. 16 Time and again the notion of state independence has been reiterated by the courts. The question raised that , whether the state has sovereign authority to use its own resources is answered by that state as a different linguistic cultural entity has a very much right in managing of its natural resources. The basic features required to fulfil fedral conditions are 1) Written constitution-The constitution of India is a written constitution, actually one of the lengthiest in the world, as Indicana has adopted laws and internal governance from India thus it applies to it. 2) Independent Judiciary- a very sound system of judiciary is followed in Indicana, which exercises powers such as judicial review . 3) Separation of powers the separation of powers between the states and the union is clearly distinguished the three lists of Seventh Schedule. The following features gives a federal view to the state of Indicana, thus it gives the power to its states, which helps them to maintain their individualistic identity in the country. Deprieving someone of which its own will amount to injstce.

16

SR Bomai vs Union Of India AIR 1994 SC 1918

Formatted: English (U.S.)

1MEMORUNDUM ON BEHALF OF STATE Of KHAMBAT AND ORS.

PRAYER
Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited, it is most humbly and respectfully prayed on behalf of the state, before the honble High Court of Judicature and New Delhi that it may be pleased to Declare that the governments order of superseding the Competition Commission was not legal Declare that the Indian Government has acted in contravention of the WTO and direct the Central government to withdraw the order requiring for manufactures to procure at least 60% of their domestic requirement Uphold the decision of the Competition Commission regarding violations of Section 3 and 4 of the Competition Act. Declare that the anti-dumping duty imposed by the government was arbitrary and the same should be withdrawn. Grant any other order in favour of the Applicants that the honble High Court may deem fit in the eyes of equity, justice and good conscience

Formatted: Font: 14 pt, Underline

All of which is most humbly and respectfully submitted Date: 15th October 2010 Counsel for the Applicants

1MEMORUNDUM ON BEHALF OF STATE Of KHAMBAT AND ORS.

Place: New Delhi

1MEMORUNDUM ON BEHALF OF STATE Of KHAMBAT AND ORS.