Petitioners Memorial

THE JITENDRA CHAUHAN COLLEGE OF LAW INTRA COLLEGE MOOT, 2019
TEAM CODE: 26
BEFORE THE HON’BLE HIGH COURT OF SAURASHTRA
THE APPEAL FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
IN APPEAL NO: /2019
IN THE MATTER OF
PLASTIC UNION OF SAURASHTRA (PETITIONERS)
STATE OF SAURASHTRA (RESPONDENT)
MEMORIAL ON BEHALF OF THE PETITIONERS
MEMORIAL FOR THE PETITIONERS Page 1

TABLE OF CONTENTS
LIST OF ABBREVATIONS 3
LIST OF AUTHORITIES 4
STATEMENT OF JURISDICTION 6
STATEMENT OF FACTS 8
STATEMENT OF ISSUES 10
SUMMARY OF ARGUMENTS 11
ARGUMENTS ADVANCED 12
PRAYERS 26

LIST OF ABBREVATIONS
ART. ARTICLE
HON’BLE HONOURABLE
SC SUPREME COURT
AIR ALL INDIA REPORTER
SCC SUPREME COURT CASES
M. P. MADHYA PRADESH
U. P. UTTAR PRADESH
HON’BLE HONOURABLE
UN REPORT UNITED NATIONS REPORT ON SINGLE USE PLASTICS
UN – UDHR UNIVERSAL DECLARATION OF HUMAN RIGHTS
ORS OTHERS
ANR ANOTHER
V VERSUS
MANU MANUPATRA

LIST OF AUTHORITIES
CASES CITED
 FERTILIZER CORPORATION KAMGAR UNION V. UNION OF INDIA

 S.P. GUPTA V. UNION OF INDIA
 ESSAR OIL V. HALAR UTKARSH SAMITI
 INDIAN COUNCIL FOR ENVIRON-LEGAL ACTION V. UNION OF INDIA
 BUDHAN CHOUDHARY V. STATE OF BIHAR
 STATE V. V. C. SHUKLA
 CHINTAMAN RAO V STATE OF M. P.
 DWARKA PRASAD V STATE OF U. P.
 SAGHIR AHMED V. STATE OF U. P.
 M.C. MEHTA V. UNION OF INDIA
 CENTRE FOR ENVIRONMENT AND FOOD SECURITY V. UNION OF INDIA
 OLGA TELLIS V. BOMBAY MUNICIPAL CORP.
 GREATER BOMBAY MUNICIPAL CORP. V. NAGPAL PRINTING MILLS
 DIPAK SIBAL V. PUNJAB UNIVERSITY
 INDIAN EXPRESS NEWSPAPER (BOMBAY) LTD. V. UNION OF INDIA
WEBSITES REFERRED
 www.manupatra.in
 www.indiankanoon.org
 www.sci.gov.in
 www.moef.gov.in
 www.unenvironment.org
 www.nationalgeographic.com
 www.ficci.in

BOOKS REFERRED
 CONSTITUTIONAL LAW OF INDIA – DR J. N. PANDEY

 CONSTITUTION OF INDIA – DR. D. D. BASU
 INDIA’S CONSTITUTION ORIGINS AND EVOLUTION – SAMARADITYA PAL
 PUBLIC INTEREST LITIGATION IN INDIA – VIDEH UPADHYAY
 ENVIRONMENTAL & POLLUTION LAWS IN INDIA – JUSTICE T. S. DOABIA
 PRINCIPLES OF ADMINISTRATIVE LAW – M. P. JAIN AND S. P. JAIN
IMPORTANT DEFINITIONS
FOR THE PURPOSE OF THIS MEMORANDUM, PLASTIC UNION OF SAURASHTRA

SHALL BE CALLED PETITIONERS.
FOR THE PURPOSE OF THIS MEMORANDUM, THE STATE OF SAURASHTRA

SHALL BE CALLED RESPONDENT.
FOR THE PURPOSE OF THIS MEMORANDUM, THE SAURASHTRA NON –

BIODEGRADABLE GARBAGE (CONTROL) ACT, 2006 SHALL BE CALLLED THE
ACT.
FOR THE PURPOSE OF THIS MEMORANDUM, THE SAURASHTRA PLASTIC AND

THERMOCOAL PRODUCTS (MANUFACTURE, USAGE, SALE, TRANSPORT,
HANDLING, STORAGE) NOTIFICATION, 2018 SHALL BE CALLED THE
NOTIFICATION.

STATEMENT OF JURISDICTION
THE PETITIONERS HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE HIGH
COURT OF SAURASHTRA, THE MEMORANDUM FOR THE PETITIONERS IN A
PETITION FILED BY PETITIONERS UNDER ART. 226 OF THE CONSTITUTION OF
INDIVA, 1949
UNDER ART. 226
(1) Notwithstanding anything in Art. 32 every High Court shall have power, throughout the
territories in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions corpus,
mandamus, prohibition, 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 said
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.

STATEMENT OF FACTS
1. The State of Saurashtra is one of the largest and densely populated state in Indiva.
Saurashtra has a population of over 12 crore and its capital Rombay is one of the most
densely populated city on the planet.
2. The city of Rombay is located near the coast and has a number of beaches open to public
use. But, with the rising population and reckless Waste Management system the beaches
of Rombay have become extremely dirty. Maximum of the garbage consisting of Non-
Biodegradable materials were simply thrown in the sea. Also, the dumping of plastic into
the sea caused great harm to the marine life as well. On many instances various fish and
tortoise were found on the beach having plastic straws embedded into their nose and other
organs ultimately causing their death. Even the manner in which plastic was burnt caused
Air pollution and difficulty in breathing for citizens especially for infants and people with
respiratory problems.
3. The menace rose to a point that the public was compelled to reduce their visit to the
beaches due to the filthiness on the beaches. Every morning, the entire beach used to get
covered with plastic materials. No space to walk on beach or to run or to enjoy some
fresh air. It augmented to such an extent that people started cleaning the beaches
themselves and later on even the Government of Saurashtra realised the menace caused
due to the excess use of plastic and irresponsible disposal of the same.
4. The Government of Saurashtra issued a notification i.e. Saurashtra Plastic and Thermocol
Products (Manufacture, Usage, Sale, Transport, Handling and Storage) Notification,
2018 (“Plastic Ban Notification”) through which the manufacture, transport, distribution,
wholesale and retail sale, usage, storage and import of certain plastic products has been
prohibited. The Plastic Ban Notification has been issued by the Government of
Saurashtra by virtue of the powers derived from clauses (1) and (2) of section 4 of the
Saurashtra Non-Biodegradable Garbage (Control) Act, 2006.
5. To ensure adherence to the ban by manufacturers, small businesses and citizens, the
government has imposed fines of up to Rs 1 lakh and a 6 – month sentence for regular

offenders, while first and second – time offenders are to be charged Rs 25,000 and Rs
50,000 respectively.
6. This Notification had brought a huge cheer to various Environmentalist, NGO’s and
certainly to the people of Saurashtra. But, the Plastic Union of the Sate opposed this ban.
They had contended that due to this ban almost 3 lakh people became jobless overnight
and shall result in a loss of almost 15,000 crore to the State. While the State is already
facing huge unemployment issues and fall in GDP and decrease in tax revenue collection,
such harsh measures shall not be taken by the State.
7. The Plastic Union of Saurashtra also contended that it and violation of their fundamental
right under Article 19(1) (g) which refers to freedom of trade and profession.
8. The Plastic Union of Saurashtra has now filed a Public Interest Litigation under Article
226 of the Constitution of Indiva alleging violation of their Fundamental Rights.
9. The matter now lies before the High Court of Saurashtra.

STATEMENT OF ISSUES
1. Whether the PIL is maintainable under article 226 of the Constitution?

2. Is there a violation of Article 19 (1) (g) of the Constitution?
3. Are the fines and punishment notifies by the Government reasonable?

SUMMARY OF ARGUMENTS
Issue 1: Whether the Public Interest Litigation is maintainable under Art. 226 of the
Constitution?
Public Interest Litigation filed by the petitioners is maintainable as the respondent arbitrarily
issued a notification under the guise of pollution and improper waste disposal which led to loss
of jobs of three lakh people and additional loss of Rs. Fifteen Thousand Crores.
Issue 2: Is there a violation of Art. 19 (1) (g) of the Constitution?
The constitution has provided all the citizens of this country with fundamental rights. In
exercise of these rights, laws are made. However, the respondent has violated Art. 14 in
arbitrary classification of plastic for banning, Art. 19 (1) (g) by restricting trade and profession
in a whole industry and Art. 21 by depriving the people their right to live with dignity, right to
shelter, right to livelihood and ultimately right to life without any law or procedure.
Issue 3: Are the fines and punishment notified by the Government reasonable?
The fines and punishment prescribed by the respondent is excessive and unreasonable as the
respondent has acted ultra vires the act and thus the notification must be struck down.

ARGUMENTS ADVANCED
ISSUE 1: Whether the Public Interest Litigation is maintainable under Article 226 of the
Constitution?
Public interest litigation means litigation for the protection of the public interest. It is
litigation introduced in a court of law, not by the aggrieved party but by the court itself or by
any other private party. It is not necessary, for the exercise of the court’s jurisdiction, that the
person who is the victim of the violation of his or her right should personally approach the
court. Public interest litigation is the power given to the public by courts through judicial
activism. However, the person filing the petition must prove to the satisfaction of the court that
the petition is being filed for a public interest and not just as a frivolous litigation by a busy
body.
Art. 226 of the Constitution reads as under,
(1) Notwithstanding anything in Art. 32 every High Court shall have power, throughout the
territories in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions corpus,
mandamus, prohibition, 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 said
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.
Justice Krishna lyer in Fertilizer Corporation Kamgar Union vs. Union of India1
enumerated the following reasons for liberalization of the rule of Locus Standi:-
1. Exercise of State power to eradicate corruption may result in unrelated interference

with individuals’ rights.
2. Social justice wan ants liberal judicial review administrative action.
3. Restrictive rules of standing are antithesis to a healthy system of administrative

action.
4. “Activism is essential for participative public justice”.
In S.P. Gupta Vs. Union of India2, the Supreme Court has held that it may now be taken as
well established principle that where a legal wrong or a legal injury is caused to a person or to
determinate class of persons by reason of violation of any constitutional or legal right or any
burden as reason of violation of any constitutional or legal provisions or without authority of
law or any such legal wrong or legal injury or legal burden is threatened and such person or
determinate class of persons by reason of poverty, helplessness of disability or socially or
economically disadvantaged position, unable to approach the Court for relief, any member of
the public can maintain an application for an appropriate direction, order or writ in the High
1. 1981 AIR SC 344

2. AIR 1982 SC 149

Court under Article 226 of the Constitution of India. This principle had continued till date and
in fact is the origin of public interest litigation. The ingredients of Public Interest Litigation
like locus standi to any member of the public, relief against public wrong or public injury,
dominant object being public interest or public good and besides that it should also satisfy
essentials of a public interest litigation which would justify judicial interference or intervention.
In the case of Essar Oil v. Halar Utkarsh Samiti3, the Supreme Court held that, “this,
therefore, is the aim - namely to balance economic and social needs on the one hand with
environmental considerations on the other. But in a sense all development is an environmental
threat. Indeed, the very existence of humanity and the rapid increase in the population together
with consequential demands to sustain the population has resulted in the concreting of open
lands, cutting down of forests, the filling up of lakes and pollution of water resources and the
very air which we breathe. However there need not necessarily be a deadlock between
developments on the one hand and the environment on the other. The objective of all laws on
environment should be to create harmony between the two since neither one can be sacrificed
at the altar of the other.
This view was also taken by Supreme Court in Indian Council for Environ-Legal Action v.
Union of India4 where it was said: "while economic development should not be allowed to
take place at the cost of ecology or by causing wide spread environment destruction and
violation, at the same time the necessity to preserve ecology and environment should not
hamper economic and other developments. Both development and environment must go hand
in hand, in other words, there should not he development at the cost of environment and vice
versa but there should be development while taking due care and ensuring the protection of
environment"”.
From the abovementioned judgements, it is understandable that the requirement of locus standi
is not essential/fundamental to file a public interest litigation and the development of the state
and environment sustainability can go hand in hand. It is crucial to point out that the impugned
notification has not only resulted in loss of jobs of almost three lakh people and additional
monetary loss of Rupees Fifteen Thousand Crore to the respondent but also the violations of
3. MANU/SC/0037/2004
4. 1996 AIR SC 1446

Arts. 14, 19 (1) (g) and 21 due to state’s brash decision to enforce such a ban. By enforcing the
ban, the respondent has failed to fulfil the principle of proportionate equality which expects the
state to take affirmative action in favour of disadvantaged section of society within the
framework of liberal democracy and as a consequence, the respondent has failed to promote
the welfare of the people and increase the inequalities with respect to income, status, facilities
and opportunities as required under Art. 38.
Further, the impugned order provides for fines and punishment which is unreasonable as the
section under which such an order is passed empowers the respondent only to “… impose
restriction or prohibition on use of non – biodegradable material…” and this particular order
prescribes for fines and penalties as well which is excessive delegation of substantive powers
of legislature to the executive and further violates Arts. 14, 19 (1) (g) and 21 and thus, the
petitioners request this Hon’ble High Court to accept the petition.

ISSUE 2: Is there a violation of Article 19 (1) (g) of the Constitution?

“The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India.”
Art. 19 (1) (g) of the Constitution reads as under,

“All citizens shall have the right to practice any profession, or to carry on any occupation, trade
or business.”

“No person shall be deprived of his life or personal liberty except according to procedure
established by law.”
The impugned notification imposes a total ban on manufacture, transport, distribution,

wholesale and retail sale, usage, storage, and import of certain plastic products. This
notification is issued under section 4 of Saurashtra Non – Biodegradable Garbage (Control)
Act, 2006. Apart from Art. 19 (1) (g), Arts. 14 and 21 are also violated as a consequence of
this impromptu notification.
The respondent had issued a notification in official gazette under the act to curb the menace
caused due to reckless waste management system. The notification was issued to combat the
problem of improper non – biodegradable materials being disposed off improperly and the
respondent claims that such materials has resulted in rise in pollution, water and air, and is
threatening the life of people in the city of Rombay as well as the marine life located in and
around the city beaches. However, the petitioners would like to bring to the attention of the
court that the impugned order has achieved objects which are contradictory to the objects
sought to be achieved. The order has caused the loss of jobs of three lakh people and an
additional loss of Rupees Fifteen Thousand Crore to the state. In doing so, the respondent is
not only turning away from its responsibility of managing the waste and providing for public
health and sanitation but also violating the people’s rights under Arts. 19 (1) (g), 21, namely,

right to practice a trade or profession and the right to shelter and live with dignity and ultimately
right to equality under Art. 14 due to violation of above mentioned rights as a consequence of
the arbitrary and discriminatory order.
The order issued by the respondent has taken away from the people their jobs which further
threatens to deprive them of their right to shelter and live life with dignity. The respondent has
also not provided any alternatives to the people affected by the order with respect to
employment and ultimately causes their right to livelihood being affected.
The word “deprive” used in Art. 21 is of great significance. The dictionary meaning of this
term means debar from enjoyment. Since this right of any person can only be prohibited by the
state except in accordance with procedure established by law it is to be construed strictly
against the State.
Nonetheless, the duty of the state is to properly manage the waste generated as such that it does
not affect the people’s health. Rather, the respondent is busy in ruining people’s lives by
making them jobless without having a thought over the magnitude of the investment, monetary
or otherwise, made by such people in the particular trade or profession.
A glaring example of how the respondent has arbitrarily passed such a draconian order without
any legal justification for the permissible classification is that the state has banned, inter alia,
bottles having carrying capacity of less than 200 milliliters made using
Polyethylene terephthalate (PET) whereas the bottles manufactured using same material
having carrying capacity over 200 milliliters are allowed for sale, with a rider that buyback
price for the purpose of recycle is printed on it. It makes one think about the motive behind
such mysterious move as the work required to recycle such bottles available for sale is same as
those required for the bottles banned. This is just one instance, among many others, of illegal
classification made by the respondent under this impugned order. Such an order is, prima facie,
failing to fulfill conditions necessary for permissible classification under Art. 14 namely,
i) The classification must be founded on an intelligible differentia which distinguishes

persons or things that are grouped together from others left out of
the group and,

ii) The differentia must have a rational relation to the object sought to be achieved by
the statute in question.
iii) There must be a nexus between the differentiation which is basis of the
classification and the object of the Act.
Budhan Choudhary v State of Bihar5 and later in State v V. C. Shukla6 .
As can be drawn from point (i) and (ii) above, the respondent has failed to provide a reasonable
ground for permissible classification and the objects sought to be achieved and objects achieved
are contradictory. Similarly, the respondent mentions that the office and educational
stationeries and raincoat, inter alia, are excluded from the ban which are as a matter of fact,
more difficult to recycle due to the types of plastics used in the manufacture of such items
which happens to be poly vinyl chloride. Additionally, the respondent allows the plastic to be
used in packaging of chips, shampoos, oil, chocolates. This again goes on to show the arbitrary
nature of the respondent in imposing such an order.
Further, the respondent has banned certain categories of plastics pursuant to the notification
but as per a study conducted by National Geographic7, among all types of plastics,
Polyethylene terephthalate (PET), High-density polyethylene (HDPE) and Low-density
polyethylene (LDPE), the types which are banned, are one of the most easily recyclable plastics
compared to the types which are not covered within the purview of the order. It is well
documented in a UN8 report that a ban on plastics has never had a desirable effect and rather a
levy has been more successful way to deal with plastic waste management issue.
If the government fails to support its action of classification on the touchstone of the principle
whether the classification is reasonable having an intelligible differentia and a rational basis
germane to the purpose, the classification has to be held as arbitrary and discriminatory
In Chintaman Rao v State of M. P.9, law authorized the government to prohibit all persons
residing in certain areas from engaging themselves in manufacture of biri during the
agricultural season. The object of the law was to provide adequate labour for agricultural
purposes in biri making areas. The Supreme Court held the law invalid as it imposed
unreasonable restrictions on biri making business of the area. The act is much in excess of the
5. [1955] 1 SCR 1045
6. AIR 1980 SC 1382
7. https://www.nationalgeographic.com/magazine/2018/06/plastic-planet-waste-pollution-trash-crisis/
8. United Nations Report on Single Use Plastic, pg. 21 – pg. 44
9. AIR 1951 SC 118

object which the law seeks to achieve. It not only compels those who are engaged in agricultural
labourers from taking other vocation but also restrict persons such as infirm, disabled, old
women and children incapable of working as agricultural labourers from engaging themselves
in the business of biri making and thus earning their livelihood, hence it was arbitrary and
unreasonable.
In Dwarka Prasad v State of U. P.10, the Supreme Court held as follows,
“8. The more formidable objection has been taken on behalf of the petitioners against clause
4(3) of the Control Order which relates to the granting and refusing of licenses. The licensing
authority has been given absolute power to grant or refuse to grant, renew or refuse to renew,
suspend, revoke, cancel or modify any licence under this Order and the only thing he has to do
is to record reasons for the action he takes. Not only so, the power could be exercised by any
person to whom the State Coal Controller may choose to delegate the same, and the choice can
be made in favour of any and every person. It seems to us that such provision cannot be held
to be reasonable. No rules have been framed and no directions given on these matters to
regulate or guide the discretion of the licensing officer.” Thus, a law or order which gives
arbitrary powers to the government and its officials to grant, refuse or cancel a licence without
assigning any reason and without giving and opportunity to the applicant to be heard, impose
unreasonable restriction on the right of the citizens to carry on any profession, trade, business.
As can be perceived from the above – mentioned cases, even though the State of Madhya
Pradesh had provided for an alternate avocation, the Supreme Court has held the legislation to
be violating Art. 19 (1) (g) and struck down the impugned order of the state for being ultra
vires the Constitution as the state cannot decide, by a law, to unreasonably restrict a person
from carrying a trade or profession. Similarly, the state of Uttar Pradesh had passed an order
delegating wide discretionary powers to an authority with regard to licensing. The Supreme
Court held that such an order is unreasonable by reason of its violation of Art. 19 (1) (g) and
such powers cannot be delegated which is identical case to this case of plastic ban.
10. AIR 1954 SC 224

The powers delegated under the impugned notification is excessive as it calls for the total ban
on trade of certain plastics. Such powers cannot be delegated to the executive as the delegation
is excessive and the law making power solely rests with legislature as it is an essential feature
of legislature to legislate and it violates fundamental right to trade and profession of an
individual and has already resulted in discharge of three lakh people from their jobs.
The aspect clear from this impugned order is that the respondent was less worried in taking
care of its duties than it should have been and as a consequence thereof, the respondent
implemented an order for which it was ill prepared and caused a large scale layoffs of people
and conclusively nailing an industry to death. In a similar case in Manchester, people called
for a referendum to tackle the issue of improper waste management and agreed to phase out all
plastic use by the end of year 2020. It is worth mentioning this incident here as it displays a
proper manner in which such a huge task was taken care of by not issuing such a heavy handed
arbitrary order calling for a total ban on certain items with exception to many in a short amount
of time.
Further, in the case of Saghir Ahmad v State of U. P.11, it was held that the word ‘restriction’
would mean ‘limitation’ and not ‘extinction’. If the word, ‘restriction’ does not include total
prohibition then the law under the review cannot be justified under the Art. 19 (6) unless it can
be supported under Art. 31.
In M.C. Mehta V. Union of India12, popularly known as the Taj Mahal case, the path of the
sustainable development was followed and directions were issued to the effect that the
industries operating in Taj Trapezium Zone using coke or coal as industrial fuel must stop
functioning and they be relocated in alternate area on sites provided under the Agra Master
Plan. In case the Supreme Court of India specified the rights and benefits to which the workmen
of such industries were entitled and thus, protected their right to livelihood and followed the
guiding principle of sustainable development.
Moreover, a UN report13 underlines a roadmap to improve and make effective waste

management systems. It calls for segregation of waste into plastics, metals, paper, etc. at the
source only so that the waste can be properly transported for effective recycling and
management which in turn leads to proper disposal and leads to less landfilling and illegal
11. AIR 1954 SC 728

12. (1996) 4 SCC 750
13. United Nations Report on Single Use Plastic, pg. 18

dumping in environment. The same report states that the total plastic packaging waste
generated in India14 is less than 10 million tons whereas the same in United States of America,
China and European Union is around 15 million tons, 45 million tons and 20 million tons
respectively. The only country having generated less total plastic packaging waste when
compared to India is Japan but nevertheless taking into account the total population of the
countries as against the total plastic packaging waste as mentioned above, the amount of plastic
generated in terms of Kg per capita15 in India is astronomically dwarfed by almost 6 times the
next country.
Moreover, as per a FICCI report16 on plastic industry, “recycling of plastics is currently

3.6MnTPA and it provides employment to almost 1.6 Million people (0.6 million directly, 1
million indirectly).” Even this report calls for proper segregation of waste at source and
promoting creation of waste management infrastructure coupled with investment in developing
recycling centers. Best practices of other developed nations could be adopted for packaging
waste, which follow a covenant of better product design to ensure reduction, re-use and
recycling of packaging materials.
This goes on to show that the plastic manufacture and sale is not the root cause of the alleged
problem of dirty beaches but the improper and reckless waste management systems employed
by the respondent is.
Art. 21 of the Constitution is a constitutional command to the State to preserve the basic human
rights of every person. Existence of right and its preservation has thus to be construed liberally
and expansively. It is well settled that procedure established by law extends both to substantive
and procedural law. Mere law is not sufficient, it must be fair and just law.
Further, no person can live without the means of living i.e. means of livelihood. If the right to
livelihood is not treated as the Constitutional right to life, the easiest way of depriving a person
of his right to life would be to deprive him of his means of livelihood to the point of abrogation.
Such deprivation would not only denude the life of its effective content of meaningfulness but
it would make life impossible to live leave aside what makes life livable.

16. FICCI Report on POTENTIAL OF PLASTICS INDUSTRY IN NORTHERN INDIA WITH SPECIAL
FOCUS ON PLASTICULTURE AND FOOD PROCESSING -2014, pg. 27

As cited by Supreme Court in Centre for Environment and Food Security v Union of
India17, the legislative scheme of Mahatma Gandhi National Rural Employment Guarantee
Act places right to livelihood at a higher pedestal than a mere legal right by ensuring that a
minimum of 100 days of employment of one person in the family is given so that the members
of the family are able to take care of their bare minimum requirement for existence. Right to
livelihood is held to be integral part of the Article 21.
Furthermore, shelter is place where opportunities to grow physically, mentally, intellectually

and spiritually are available. Right to shelter is supposed to include adequate living space, safe
and decent structure, clean and decent surroundings, sufficient light, pure air and water,
electricity, sanitation and other civic amenities like roads so as to have easy access for attending
daily avocation. It was concluded that the right to shelter does not mean a mere right to roof
over one’s head but right to all the infrastructure to enable human beings to live and develop
as human beings. This was found to be an essential requisite to right to live and should be
deemed to have been guaranteed as a fundamental right. Reference is also made to the Directive
Principles of State policy and it was ultimately concluded that the state should be deemed to
be under an obligation to secure for its citizens subject to economic budgeting a decent shelter.
Moreover, in the case of Olga Tellis v Bombay Municipal Corp18, a reference was made to
what was said by Duglas J., in Banksy [(1954) 347 MD 442]. The learned Judge said that the
right to work is the most is the most precious liberty that a man possess, it is the most precious
liberty because it sustains and enables a man to live and the right to life is a precious freedom.
It was ultimately concluded that the pavement dwellers are indeed entitled to alternate
accommodation.
The apparent thing is that the people had jobs which enabled them to provide for shelter, life
with dignity, and finally a livelihood. But as a result of the impugned order, those people
deprived of their right to shelter and life with dignity. As said by Alexander Hamilton in the
Federalist Paper No. 79, “In the general course of human nature, a power over a man’s
subsistence amounts to a power over his will.” Thus, any order by which a control over other
person’s will/mind is attempted by any law, such law is liable to be struck down as control over
a person’s will amounts to control over person’s life and a person whose life is controlled by
17. 2011 5 SCC 67

18. AIR 1986 SC 180

another person is violating that person’s right to life under Art. 21.
Lastly, the respondent, by issuing the impugned order, has ensured that the people affected by
such order have their rights under UN – UDHR also violated. The charter aims to provide
people around the globe basic human rights which must be protected by all the signatory
nations. As per Art. 25 of the charter, “Everyone has the right to a standard of living adequate
for the health and well-being of himself and of his family, including food, clothing, housing
and medical care and necessary social services, and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control.” Thus, in event of any loss of livelihood, it must be the duty
of the state to tend the people with such loss. However, the respondent, in this case, has failed
remarkably in protecting its people from loss of their trade and profession, livelihood, shelter
and dignity.

ISSUE 3: Are the fines and punishment notifies by the Government reasonable?
The petitioners claim that the fines and penalty issued under the notification by the government
are unreasonable. The reason being so is that the empowering section of the parent act, namely
section 4, does not provide for imposing fines and penalties. Moreover, the parent act itself
contains provisions for penalties. It is ridiculous that the respondent went ahead and inserted
such penal provisions in the notification which are not only multiple times of the penal
provisions contained in the parent act but also multiple time the fines prescribed under section
12 of such act, i.e., compounding of offences.
According to theory of Separation of Powers, it is the function of the legislature to legislate

and of the executive to administer and execute the laws made by the legislature. However, in
this case, the administrative authority, which is the respondent, not only did not administer the
act made by the legislature but issued a notification under the act with provisions for which it
did not have any powers to do so. The notification contains fines and punishment which is
power of the legislature as the legislature is made of members elected from amongst the people
of the state by the people of the state. Such a legislative power is not to be delegated and such
a delegation is ultra vires the Constitution and any law made by any such delegated legislative
authority is ultra vires the Constitution which is liable to be struck down by the court.
Further, where an act or omission amounts to an offence, naming such an act or omission as an
offence is an essential legislative function and therefore, cannot be delegated. Moreover, the
executive is only empowered to prescribe the punishment for a particular violation of the
provisions of the parent act, subject to ceiling laid down by such parent act.
Substantive ultra vires means that the rule making authority has no substantive power under
the empowering Act to make the rules in question. It refers to the scope, extent and the range
of power conferred by the Parent act to make delegated legislation.
In Greater Bombay Municipal Corp. v Nagpal Printing Mills19, the Supreme Court held
that, “If the exercise of power is in the nature of subordinate legislation, the exercise must
conform to the provisions of the statute. All the conditions of the statute must be fulfilled.”
Thus, delegated legislation repugnant to, or inconsistent with or in contravention of, or in
excess of, or overriding the provisions of the parent act is ultra vires.
19. AIR 1988 SC 1009

In Dipak Sibal v Punjab university 20, the Supreme Court held that a decision by a court that
a piece of delegated legislation is ultra vires makes it void and renders it incapable of ever
having any effect upon the rights and duties of the concerned parties to the proceedings.
Although such a decision is directly binding only as between the parties to the proceedings in
which it was made, but because of doctrine of precedent, the benefit of the decision accrues to
all other persons whose legal rights have been interfered with in reliance of the law which the
delegated legislation purports to declare. Until there is a challenge to the validity of some
delegated legislation, and the same is upheld or invalidated by a court of law, there is
presumption of validity of the delegated legislation in question as well as of legality of acts
done in pursuance thereof. If the valid and invalid portions of a rule can be severed then only
the invalid portion of the rule is quashed and the valid portion can continue to remain operative.
Whether the invalid portion can be severed from the valid portion is a question for the court to
decide. But if the invalid and valid parts of a rule are inextricably mixed up, then the entire rule
has to be set aside.
In Indian Express Newspapers (Bombay) Ltd. v Union of India21, the Supreme Court has
made an important pronouncement. A legislative order dated July, 1977, was superseded by
another order dated March, 1981. The latter order was held to be ultra vires by the court. The
court has ruled that the invalidation of the latter order would not lead to the revival of the earlier
order.
Hence, from the above – mentioned judgements, even though the administrative authorities
have in past tried to encroach upon the powers of the legislature, such encroachments are struck
down by the courts and the petitioners request this Hon’ble High Court to do the same to bring
justice to the people affected as a consequence of this impugned notification.
20. AIR 1989 SC 903

21. AIR 1986 SC 515

PRAYER
In the light of issues raised, arguments advanced and the judgments cited, it is most humbly
requested that this Hon’ble High Court adjudge and declare that:
1. The Public Interest Litigation is maintainable.

2. There are violation of Fundamental Rights prescribed under the Constitution.
3. The fines and punishment notified by the Government are unreasonable and excessive.
The Hon’ble High Court may also be pleased to pass any other order, which this court may
deem fit in the light of justice, equity and good conscience.
Sd/-
………………….
(Counsel for the “Petitioner”)

Petitioners Memorial

Загружено:

Сведения о документе

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Petitioners Memorial

Загружено:

Авторское право:

Доступные форматы

THE JITENDRA CHAUHAN COLLEGE OF LAW INTRA COLLEGE MOOT, 2019

BEFORE THE HON’BLE HIGH COURT OF SAURASHTRA

THE APPEAL FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA

IN APPEAL NO: /2019

PLASTIC UNION OF SAURASHTRA (PETITIONERS)

STATE OF SAURASHTRA (RESPONDENT)

MEMORIAL ON BEHALF OF THE PETITIONERS

MEMORIAL FOR THE PETITIONERS Page 1

MEMORIAL FOR THE PETITIONERS Page 2

AIR ALL INDIA REPORTER

SCC SUPREME COURT CASES

UN REPORT UNITED NATIONS REPORT ON SINGLE USE PLASTICS

UN – UDHR UNIVERSAL DECLARATION OF HUMAN RIGHTS

MEMORIAL FOR THE PETITIONERS Page 3

 FERTILIZER CORPORATION KAMGAR UNION V. UNION OF INDIA

MEMORIAL FOR THE PETITIONERS Page 4

 CONSTITUTIONAL LAW OF INDIA – DR J. N. PANDEY

FOR THE PURPOSE OF THIS MEMORANDUM, PLASTIC UNION OF SAURASHTRA

FOR THE PURPOSE OF THIS MEMORANDUM, THE STATE OF SAURASHTRA

FOR THE PURPOSE OF THIS MEMORANDUM, THE SAURASHTRA NON –

FOR THE PURPOSE OF THIS MEMORANDUM, THE SAURASHTRA PLASTIC AND

MEMORIAL FOR THE PETITIONERS Page 5

COURT OF SAURASHTRA, THE MEMORANDUM FOR THE PETITIONERS IN A

PETITION FILED BY PETITIONERS UNDER ART. 226 OF THE CONSTITUTION OF

UNDER ART. 226

territories in relation to which it exercises jurisdiction, to issue to any person or authority,

such person is not within those territories.

plea for such interim order; and

MEMORIAL FOR THE PETITIONERS Page 6

next day, stand vacated.

power conferred on the Supreme Court by clause (2) of article 32.

MEMORIAL FOR THE PETITIONERS Page 7

MEMORIAL FOR THE PETITIONERS Page 8

9. The matter now lies before the High Court of Saurashtra.

MEMORIAL FOR THE PETITIONERS Page 9

1. Whether the PIL is maintainable under article 226 of the Constitution?

MEMORIAL FOR THE PETITIONERS Page 10

Issue 2: Is there a violation of Art. 19 (1) (g) of the Constitution?

MEMORIAL FOR THE PETITIONERS Page 11

Art. 226 of the Constitution reads as under,

MEMORIAL FOR THE PETITIONERS Page 12

1. Exercise of State power to eradicate corruption may result in unrelated interference

2. Social justice wan ants liberal judicial review administrative action.

3. Restrictive rules of standing are antithesis to a healthy system of administrative

4. “Activism is essential for participative public justice”.

1. 1981 AIR SC 344

MEMORIAL FOR THE PETITIONERS Page 13

MEMORIAL FOR THE PETITIONERS Page 14

MEMORIAL FOR THE PETITIONERS Page 15

ISSUE 2: Is there a violation of Article 19 (1) (g) of the Constitution?

Art. 14 of the Constitution reads as under,

Art. 19 (1) (g) of the Constitution reads as under,

Art. 21 of the Constitution reads as under,

The impugned notification imposes a total ban on manufacture, transport, distribution,

MEMORIAL FOR THE PETITIONERS Page 16

i) The classification must be founded on an intelligible differentia which distinguishes

MEMORIAL FOR THE PETITIONERS Page 17

Budhan Choudhary v State of Bihar5 and later in State v V. C. Shukla6 .

MEMORIAL FOR THE PETITIONERS Page 18

In Dwarka Prasad v State of U. P.10, the Supreme Court held as follows,

10. AIR 1954 SC 224

MEMORIAL FOR THE PETITIONERS Page 19

Moreover, a UN report13 underlines a roadmap to improve and make effective waste

11. AIR 1954 SC 728