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8 th^ ANNUAL NATIONAL MOOT COURT COMPETITION - 2023 BEFORE THE HON’BLE SUPREME COURT OF INDRAPRASTHA THE WRIT PETITIONS FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF REPUBLIC OF INDRAPRASTHA. IN THE MATTER OF BHIM AND ORS -------------------------------------------------------------------------PETITIONERS Versus STATE OF GOKTAL AND OTHERS ----------------------------------------------- RESPONDENTS MEMORANDUM ON BEHALF OF THE RESPONDENT MEMORANDUM DRAWN AND FILED BY THE COUNSEL FOR THE RESPONDENTS
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TABLE OF CONTENTS
INDEX OF AUTHORITIES ---------------------------------------------------------------------------- 3 - 5
STATEMENT OF FACT---------------------------------------------------------------------------------- 6 - 7
STATEMENT OF JURISDICTION---------------------------------------------------------------------- 8
ISSUES RAISED ------------------------------------------------------------------------------------------- 9
SUMMARY OF ARGUMENTS------------------------------------------------------------------------- 10
ADVANCED ARGUMENTS------------------------------------------------------------------------- 11 - 25
1.WHETHER IT IS NECESSARY TO ABOLISH MANDIR BOARDS IN THE STATE OF
GOKTAL? ---------------------------------------------------------------------------------------------- 11 - 14
2. WHETHER THE CONTRIBUTION OF RS.10 CRORES TO GOKTAL CMDRF IS
CONSTITUTIONALLY VALID? ------------------------------------------------------------------ 14 - 17
3. WHETHER THE NEED FOR NOC FROM LEB IS UNCONSTITUTIONAL? ------ 18 - 21
4. WHETHER THE GOKTAL LOCAZ TEACHERS WELFARE FUND ACT,2019 IS
VIOLATIVE OF ART.14 OF THE CONSTITUTION? --------------------------------------- 22 - 25
PRAYER FOR RELIEF------------------------------------------------------------------------------------ 26
- M.E. Subramani and others v. The Commissioner, HR & CE (Admn.), AIR CASES REFERRED
- Bira Kishore Deb vs State of Orissa AIR 1964 SC
- Sri Shirur Mutt case 1954 SCR
- Kishore deb case AIR 1964 SC
- Ajay Hasia vs Khalid Mujeeb (1981) 1 SCC
- Shree Bhagyatachaarya vs State of Gujarat AIR 2001 Guj 208, (2001) 2 GLR
- Anil vs. State of Kerala and ors WP (c) no. 19035/
- Gopala Krishnan Nair Case Appeal(civil) 6675 of
- Union of India vs Raghubir Singh (1989) 2 SCC
- NO. 10770 OF State of Andhrapradesh vs. A.P. State Locaz Endowment Board CIVIL APPEAL
- Mohamed Mujeebur Rahman vs. The State of Tamilnadu W.P.No.1134 of
- AIR 1965 All Hafiz Mohammad Zafar Ahmad vs U.P Sunni Central Board of Locaz Endowments
- Meera Sawhney vs. Lt. Governor of Delhi and ors CIVIL APPEAL NOS. 3413-
- Vikram vs State of M.P MCRC No. 14580/
- P. Rajendran vs. State of Madras 1968 AIR
- Jaganath Prasad vs. State of U.P 1961 AIR
- Lily Kurian vs. Lewina and ors 1979 AIR 52,820 SCR
- P.N.Menon Case 1994 AIR
- Adam B Chaki vs. Mr.Paras kuhad WRIT PETITION (PIL) NO. 20 of
- Mohd.Sujat Ali vs. Union of India 1974 AIR
- Stephen's College Vs the University of Delhi Writ Petition (Civil) 1868 of
- Dr. Pradeep Jain etc vs. Union of India and ors,etc 1984 AIR 1420,298R SCR (3)
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WEBSITES REFERRED
http://www.lawctopus.com/ http://www.ngalaw.co.uk/ http://www.indianlawyers.wordpress.com/ http://www.indiankanoon.com/ http://www.legalservice.com/ http://www.outsideonline.com/ http://www.indianlawjournal.com/ http://www.acedemia.com/ http://www.casemine.com/ http://www.icj-cij.com/ http://www.lawbulls.com/ http://www.indianlawyers.wordpress.com/ http://www.scconline.com/ http://www.vakilsearch.com/ http://www.advocatedekhoj.com/
7 contending that the act of Inspector-general of registration according to the government order is arbitrary and unconstitutional. 7.Goktal Locaz Teachers Welfare Fund Act 2019 : This law was passed in Goktal to provide benefits for teachers who were appointed without any qualifications and taught only on the basis of religious thoughts and ideologies. A petition was filed before the high court of Goktal seeking to quash the act. 8.Occurrence of a great natural disaster : Meanwhile a great flood occurred in the state of Goktal where hundreds of Dead report and large scale loss of the property were registered. By considering this disaster into account, the Chief Minister's disaster relief fund which was constituted by the state government decided to provide donations. Then there by Goktal Mandir board decided to contribute Rs.10 crores to the CMDRF for the Zoro Mandir. Many allegations were rised against the Goktal Mandir board citing about the violation of equality. A writ petition was filed, claiming that the Mandir had no right to donate the money. 9.Writ petition challenging the discriminatory interference : Several debates where highlighted about the treatment of Goktal government. A citizen Bhim from Goktal filed a writ petition before the supreme court of Indraprastha challenging that discriminatory interference by the successive state government in this affair. All writ petitions were clubbed together by the supreme court and referred to the constitution bench.
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STATEMENT OF JURISDICTION
It is humbly submitted by the respondent counsel to the honorable Supreme court of Indraprastha has no jurisdiction in this fact under ARTICLE 32 of the Constitution of Indraprastha which read as follows: Article 32: Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
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SUMMARY OF ARGUMENTS
1.WHETHER IT IS NECESSARY TO ABOLISH MANDIR BOARDS IN THE STATE OF
GOKTAL?
It is humbly submitted that it is not necessary to abolish Mandir Board in the State of Goktal as it runs in accordance with the law and does not violate any fundamental rights of the religious denomination. If there are no such boards then it will be easier for aristocratic administration of mandirs.
2. WHETHER THE CONTRIBUTION OF RS.10 CRORES TO GOKTAL CMDRF IS CONSTITUTIONALLY VALID? It is submitted that the contribution done by the Goktal Mandir Board of Rs. 10 crores to the Chief Minister Disaster Fund Relief is constitutionally valid as the board is a statutory body and it is government by the state. As per the sections of the Goktal Mandir Board act it is clear that the board could contribute funds as it is not violating fundamental rights like Art 14. 3.WHETHER THE NEED FOR NOC FROM LEB IS UNCONSTITUTIONAL? It is submitted that the need for NOC from LEB is unconstitutional because the government order is a law under Art 13(3) and the board is a statutory body under Art 12 of the constitution of Indraprasatha. In order to regulate the maladministration, the government can make orders. Therefore, the Government order is constitutional and so the need of LEB is unconstitutional. 4.WHETHER THE GOKTAL LOCAZ TEACHERS WELFARE FUND ACT,2019 IS VIOLATIVE OF ART.14 OF THE CONSTITUTION? It is submitted that the Goktal Locaz Teachers Welfare Fund Act,2019 is not violative of Art 14 because art 14 prescribes that likes should be treated alike and unlike should not be treated alike. There is no violation of Article 14.
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ARGUMENTS ADVANCED
1.WHETHER IT IS NECESSARY TO ABOLISH MANDIR BOARDS IN THE STATE OF
GOKTAL?
It is Submitted that the Mandir boards in the state should not be abolished as it only runs in accordance with the law and it is not violative of the rights of Religious Denominations. 1.1ABOLITION OF MANDIR BOARDS IS NOT NECESSARY
- It is submitted that the Goktal Mandir Board Act,1978 manages many Mandirs in the state of Goktal. Abolishing the Mandir Boards will pave the way for several malpractices and misuse of temple funds.
- It is to noted that to whom the Mandir will be handover after abolishing Mandir Board. The contention made by the petitioner that the Government is looting Mandir’s revenue is a false propaganda. All the income from the Mandir Hundi Boxes, Ticket Sales, or lease Collection and Auction of sarees and Dhoti’s Directly Goes into the Mandir’s Bank account which is jointly managed by Mandir’s executive officer and the Government appointed trustee.
- M.E.Subramani and others v. The Commissioner, HR & CE(Admn.^1 ), Madras a, Justice Ramanujam has observed as follows: - " 4. ..... Section 45 cannot be taken to confer an unguided and arbitrary power on the Commissioner and that the power has got to be exercised in terms of the policy of the Act i.e., to provide for the administration and governance of the religious and charitable institutions and endowments under the State of Tamil Nadu. ...... When the Commissioner has specifically stated, in the order appointing the Executive Officer, that the power has been exercised for the better and proper administration of the group of temples, it cannot say that this is, in any way, either irrelevant or extraneous.” (^1) AIR 1976 Mad. 264
13 “5. This review of the provisions of the Act shows that broadly speaking the Act provides for the management of the secular affairs of the Temple and does not interfere, with the religious affairs thereof, which have to be performed according to the record-of-rights prepared under the 1952 Act and where there is no such record- of-rights in accordance with custom and usage obtaining in the Temple.
- Inferences can be drawn from neighboring states, In the state of Tamilnadu, “after a lot of struggle a lot of people from the lower caste groups were allowed to enter into temples. And also there were rule to include women and lower caste people as trustees and executive officers.
- If the Mandir board have been abolished the control will go into the hands of few dominant zoro communities who may not allow other communities to enter Mandir. If there is control of Government over the Mandir Lost’s of people’s interest will be protected and their fundamental right will be protecting. Untouchability could be completely eradicated and Article 14,15,16 will also be protected.
- Sri Shirur Mutt case^4 , the Supreme Court has held as follows:- " 17. It will be seen that besides the right to manage its own affairs in matters religion, which is given by clause (b), the next two clauses of article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of the article applies. What then are matters of religion? The word "religion" has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition.
- Article 38 of the Constitution provides that a state to secure order for the promotion of welfare of the people. So the Mandir Boards are necessary for the equitable (^4) 1954 SCR 1005
14 protection of the zoro religions. In Kishore Deb^5 , wherein this Court has held that the Lord Jagannath Temple occupies a unique position in the State of Odisha and is a temple of national importance and no other temple in that State can be compared with it. It stands in a class by itself and with respect to be a subject of special consideration by the State Government and thus requires special treatment. Therefore, it is humbly submitted that the mandir boards should not be abolished. If there are no such boards it will easier for aristocratic administration of Mandirs.
2. WHETHER THE CONTRIBUTION OF RS.10 CRORES TO GOKTAL CMDRF IS CONSTITUTIONALLY VALID? It is submitted that the contribution made by the Goktal Mandir Board to CMDRF is constitutionally valid as there is no violation of fundamental rights and abuse of power. 2.1 CONTRIBUTION OF RS.10 CRORE TO GOKTAL CMDRF IS CONSTITUTIONAL 1. It is to be noted that providing funds to CMDRF is part of one’s social responsibility. Chief Minister’s Disaster Relief Fund is an emergency assistance scheme to provide relief for deserving families and individuals financially devasted by natural calamities or death of breadwinners or serious diseases. It is meant for helping the poor particularly for their medical treatment. So in such extraordinary circumstances the donation has been made by the Goktal Mandir board concerning the life of the peoples of state. 2. The board is not a corporate body and it’s a government body. According to sec 135 of the companies act the body corporate could not contribute funds to the government schemes but the Goktal mandir board is a statutory body. 3. Article 12 of the Constitution of Indraprastha reads that “in this part, unless the context otherwise requires, “the state” includes the government and the parliament of Indraprastha and the government and the legislature of each of the state and all local (^5) AIR 1964 SC 1501
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- Sec 27 of the Goktal Mandir Board Act,1978 prescribes the purposes for which the board could incur expenditure. Sec 27 deals as follows: Authority of committee to incur expenditure for certain purposes The Committee may, after making adequate provision for purposes referred to in sub- section (2) of section 21, incur expenditure out of the funds of the Devaswom for all or any of the following purposes, namely: - (c) medical relief, water supply and other sanitary arrangements for the worshippers and the pilgrims and construction of buildings for their accommodation;
- From this section it is clear that Sec 27 of the Goktal Mandir Board act mentions the word to incur "certain expenses" this can be related to the authority of the board can donate the fund to CMDRF.
- It also to be noted that the government and the Mandir board owes a duty to contribute and mitigate the losses caused by the act of God in times of disaster. This is clearly a case of "Vis Major"^8 , the loss happened is due to the act of God. In such circumstances concerning the goodness of people a statutory body under art 12 could donate certain funds. A
- Therefore, from this it's clear that donating funds to CMDRF by the board is in accordance with duties vested on the committee.
- It is also submitted that as far as a worshipper or pilgrim is concerned the geographical proximity should not have been seen and it has no significance at all and the benefit necessaily must go in favour of others also
- Anil V. vs. State of Kerala & Ors^9 , , a division bench upheld the donation of Rs. 5 crore made during the floods. It was held therein that the Managing Committee of the Devaswom may, after making adequate provision for the purposes referred to Section 21(2), incur expenditure out of the funds for all or any of the purposes mentioned under clauses (a) to (g) therein and the provisions under Section 27 would not be (^8) Act of god (^9) WP (C) No. 19035/
17 understood to carry an interdiction so as to invalidate the action in making donation to the Chief Minister's Distress Relief Fund.
- The donation made by the Mandir board is in accordance with Sec 3 9 of the disaster management act,2005 The mandir board gas donated 10 crores to the CMDRF which was meant to help a large population of people ravaged by the flood. Many of the flood's victims are the devotees of the Zoro religion. So it largely benefits them also.
- In Gopala Krishnan Nair case^10 , it has been Clearly ruled that the State has the requisite jurisdiction to oversee the administration of a temple subject to Articles 25 and 26 of the Constitution. Further, it has been held that the freedom guaranteed under Article 25 of the Constitution is not an unconditional one and a distinction exists between the matters of religion on the one hand and holding and managing the properties of religious institutions on the other. In paragraph 36, the Supreme Court further said that although State cannot interfere with the freedom of a person to profess, practice and propagate his religion, the secular matters connected therewith can be the subject matter of control by the State.
- Entry 28 of the concurrent list deals with the subject matter of religious endowments and religious institutions thereby under art 245 of the constitution the state can make law and regulate the laws.
- Normally, the Mandir board may take care of public interest by performing purely secular duties like disbursement of salary, collection of rents and profits, discharging contractual obligations, etc. Worshippers interest will encompass within its limits the public interest and, in addition to that, the religious rights as well. In other words, a worshipper, being a member of the public, has interests in dual capacity, viz: both secular and religious.
- Therefore, the funds given by the board is constitutionally valid as it does not affect people’s rights rather it provides for the welfare of the people at large. (^10) Appeal (civil) 6675 of 1999
19 to protect its property .it is subjected to the control of government in case of maladministration. In the case of Mohamed Mujeebur Rahman vs The State Of Tamil Nadu,^13 , It is also made clear that if the Government finds any mal-administration or mismanagement or misappropriation committed by the erstwhile mutawallis, appropriate action shall be taken in accordance with law against the persons concerned.
- Under sec 64 of the Local Endowment Board Act, 1954, If willfully and persistently disobeys the lawful orders made by the Central Government, State Government, Board or rule or order made thereunder; (k) misappropriates or fraudulently deals with the property of the Locaz endowment can be removed. In the case of Hafiz Mohammad Zafar Ahmad vs U.P. Sunni Central Board Of Locaz endowments^14 ,Under Section 19 of the Act only general superintendence of all Locaz endowments vests in the Board. The Act does not deprive religious institutions to manage their own affairs either in religious matters or in the administration of property in accordance with law. The Board can only ensure that the Locaz endowments are properly governed and the rights of administration of properties are not taken away by Section 19 of the Act.
- Meanwhile, the Uttar Pradesh,Mohsin Raza, the state's minority-affairs minister, promised an overarching investigation into the suspected scam of the board". Likewise, the government has the authority to check into the dubious transaction by the members of the board
- Minority affairs minister at the 76th meeting of the Central Locaz Endowment Council said that during the last three years, more than two thousand criminal cases have been filed in connection with encroachment on locaz endowment board properties.
- "The purpose of directing the State Governments to conduct survey under section 4 of the Locaz Endowments Act is to find out the left over Locaz endowments properties (^13) W.P.No.1134 of 2011 (^14) AIR 1965 All 333
20 in the earlier survey and also to ascertain the extent of encroachment of the Locaz Endowments properties. Any delay in carrying out the survey will only help land grabbers and land mafia in occupying valuable Locaz Endowments properties.The Committee, therefore, strongly recommends that every State should conduct survey of all the Locaz Endowment properties situated in the State, registered or unregistered.” Parliamentary committee on Locaz Endowments,2008, has observed and suggested these measures. Therefore, providing NOC can be a restriction to conduct survey. And various properties will be dubiously alienated. In order to reduce the misappropriation, the No objection certificate should not be produced.
- Meera Sawhney v. Lt. Governor^15 has observed,We are of the view that No objection certificate (NOC) is of no legal consequence. We also hold that no permission under Section 5 of the 1972 Act was ever sought regarding transfer of the land in question nor any permission was granted. The alleged transfer, therefore, is clearly in violation of the provisions of the 1972 Act. It has no legal validity. The Act does not envisage any NOC. Section 5 only recognizes a permission in writing for transfer of lands under Sections 4 and 6 notifications and the permission is to be granted by the Competent Authority under the Act alone. In fact, the learned Counsel for the petitioner did not dispute that permission was a sine qua non.
- A no Objection Certificate (NOC) of society is not required for the sale and renting of a flat, the state housing minister had recently said. However, housing experts and legal brains have claimed that such provisions were already given in the bye-laws of the society and it is not a new provision. The model bye-law no.38 of the cooperative housing society approved by the cooperative commissioner of Maharashtra in 2014 states that it is not mandatory to obtain NOC for the sale of flats. The Maharashtra Cooperative Societies Act, 1960, states that in case the society fails to discharge its obligation as per Act, Rules and bye-laws, the deputy registrar on complaints is empowered to do the needful.” “The challenge is that in spite of such provisions in the bye-laws, some societies by their (^15) CIVIL APPEAL NOS. 3413-3414 OF 200 1
