Respondent_TC 9 (1)

TEAM CODE - 09

IN THE HON'BLE SUPREME COURT OF INDUS PETITION DRAWN AND FILED UNDER THE CONSTITUTION OF INDUS

IN THE MATTER OF:

KINGBIRD PRIVATE LTD AND ANR..………………………...................................PETITIONER v. UNION OF INDUS……………………….……………………...............................RESPONDENT

MATTER CONCERNING:

VALIDITY OF DILLI PROHIBITION ORDER, 2016

AND

VIOLATION OF FUNDAMENTAL RIGHT U/ART. 14, 19 R/W ART. 21 OF THE CONSTITUTION OF INDUS.

MEMORIAL ON BEHALF OF THE RESPONDENTS DRAWN AND FILED BY THE COUNSELS ON BEHALF OF THE RESPONDENTS

10th NALSAR - JUSTICE B.R. SAWHNY MEMORIAL MOOT COURT COMPETITION, 2016

TABLE OF CONTENTS TABLE OF ABBREVIATIONS ........................................................................................... IV INDEX OF AUTHORITIES ................................................................................................. V STATEMENT OF JURISDICTION ................................................................................... VIII STATEMENT OF FACTS .................................................................................................. IX STATEMENT OF ISSUES .................................................................................................. XI I.

WHETHER

THE

PETITION

FILED BY

MAINTAINABLE BEFORE THE

II.

KING BIRD

III. WHETHER

THE

ARTICLE 32

IS NOT

HON’BLE COURT? ................................................... XI

WHETHER THE CENTRAL GOVERNMENT CAPACITY TO PASS THE

UNDER

THROUGH THE

LT. GOVERNOR

HAD THE

DILLI PRADESH PROHIBITION ORDER 2016? .................. XI

PROHIBITION ORDER

PASSED BY THE

LT. GOVERNOR

IS NOT

VIOLATIVE OF THE FUNDAMENTAL RIGHTS GUARANTEED UNDER A RT . 14 AND A RT.

19(1)( G) OF THE C ONSTITUTION ........................................................................... XI SUMMARY OF ARGUMENTS .......................................................................................... XII ARGUMENTS ADVANCED ................................................................................................. 1 I.

THAT

THE

PETITION

FILED BY


II.

THAT LT. GOVERNOR

KING BIRD

UNDER

ARTICLE 32

IS NOT

HON’BLE COURT. ...................................................... 1

IS VESTED WITH

POWERS

TO PASS THE

DILLI PRADESH

PROHIBITION ORDER 2016. ..................................................................................... 2 A.

NCT of Dilli Pradesh is amenable to Art. 239. ............................................... 2

B.

Advise to Lt. Governer by CoM is recommendatory in Nature ..................... 4

i.

Union Government is vested with power to make laws in State of NCT. .................... 4

ii. Lt. Governor acts in his discretion on the directions of the Union Government......... 5 iii. Lt. Governor is not bound by the aid and advice clause of the President. .................. 5 iv. The Dilli Pradesh Prohibition Order 2016 is valid. .................................................... 7 III. THAT THE PROHIBITION ORDER IS NOT VIOLATIVE OF THE FUNDAMENTAL RIGHTS. ................................................................................................................................ 8 A.

“Prohibition Order” is not violative of Art. 14. .............................................. 8

II WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS


i.

That the classification is based on intelligible differentia. .......................................... 9

ii. Existence of Rational nexus b/w the classification & the objective of the order. ...... 10 iii. That the Prohibition Order is not arbitrary. ............................................................. 12 B. i.

“Prohibition Order” is not violative of Art. 19(1)(g). ................................... 13 There is no fundamental right to trade in liquor. ...................................................... 13

ii. Order imposes reasonable restriction on the Fundamental Right to Trade. ............. 14 iii. That the order is not arbitrary in nature. .................................................................. 15 PRAYER FOR RELIEF .................................................................................................. XIII

III WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS


TABLE OF ABBREVIATIONS ABBREVIATION

DEFINITION

&

And

¶

Para

§

Section

U/

Under

i.e.

That is

AIR

All India Reporter

Anr.

Another

Approx.

Approximately

Art.

Article

Const.

Constitution

Hon'ble

Honourable

Lt.

Lieutenant

Ltd.

Limited

M.P.

Madhya Pradesh

N.C.T.

National Capital Territory

Ors.

Others

Pvt.

Private

SC

Supreme Court

SCC

Supreme Court Cases

SCR

Supreme Court Reporter

U.P.

Uttar Pradesh

v.

Versus

IV WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS


INDEX OF AUTHORITIES -STATUTES REFERRED1.

The Constitution of India, 1950

2.

The Delhi Excise Act, 2009.

3.

The Government of National Capital territory of Delhi Act, 1991.

4.

The Industrial Act (Development and Regulation Act), 1951.

5.

Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993. -CASES CITED-

1.

Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 ............................................. 1

2.

Avinder Singh v. State of Punjab & Anr, 1979 (1) SCC 137 .......................................... 7

3.

B. Krishna Murthi v. State of Andhra Pradesh, 2005 (2) ALT 342 ................................. 9

4.

Balco Employees Union (Regd.) v. Union Of India & Ors (2002) 2 SCC 333 ............. 13

5.

Census Commissioner & Ors v. R.Krishamurthy (2015) 2 SCC 796 ............................ 12

6.

Chiranjit Lal Choudhuri v. Union of India, 1950 SCR 869 ............................................. 9

7.

Cooverji v. Excise Commissioner, Ajmer AIR 1954 SC 728 ........................................ 14

8.

D.S. Nakara & Others v. Union of India, 1983 SCR (2) 165 ........................................... 9

9.

Devji Vallabhbhai Tandel v. Administrator of Goa, Daman & Diu, (1982) 2 SCC 222 . 5

10.

Dharam Dutt v. Union of India, (2004) 1 SCC 712 ................................................... 9, 10

11.

G.V.K. Industries Ltd. & Anr. v. The Income Tax Officer & Anr. (2011) 4 SCC 36 ..... 2

12.

Govt. of N.C.T. Delhi v. Union of India, 2016 SCC OnLine Del 4308 ........................... 6

13.

Har Shankar & Ors. v. The Dy. Excise & Taxation Commr, AIR 1975 SC 1121 ......... 17

14.

I.R. Coelho v. State of T.N., (2007) 2 SCC 1 ................................................................... 1

15.

Indian Express Newspapers (Bom.) Pvt. Ltd. & Ors. v. UoI & Ors.,1985 SCR (2) 287 . 7

16.

Indian Nut Products & Ors. v. UOI & Ors., (1994) 4 S.C.C. 269 .................................... 7

V WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS


17.

Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr., (1973) 4 SCC 225) ................................................................................................................................... 2

18.

Khoday Distilleries Ltd. v. State of Karnataka (1995) 1 SCC 574 .......................... 15, 16

19.

N.D.M.C. v. State of Punjab, AIR 1997 SC 2847 ............................................................ 2

20.

Nabam Rebia and Bamang Felix v. Deputy Speaker & Ors., S.L.P. (C) No.12591260/2016 ......................................................................................................................... 5

21.

Nashirwar v. State of Madhya Pradesh (1975) 1 SCC 29 ........................................ 14, 16

22.

Parvej Aktar v Union of India, (1993) 2 SCC 221 ......................................................... 10

23.

Ram Jawaya Kapur v. State of Punjab, (1955) 2 SCR 225 .............................................. 6

24.

S.K. Chakraborty v Union of India, (1988) 3 SCC 575 ................................................. 10

25.

Samsher Singh v Union of India, (1974) 2 SCC 831 ....................................................... 5

26.

Shashikant Laxman Kale and Anr. v Union of India, 1990 AIR 2114 ............................ 9

27.

Special Courts Bill, 1978, In re, (1979) 2 SCR 476 ....................................................... 10

28.

State of Andhra Pradesh and Ors. v. McDowell & Co., (1996) 3 SCC 709 .................. 14

29.

State of Andhra Pradesh v McDowell & Co. AIR 1996 SC 1627 ................................. 16

30.

State of Bombay v. FN. Balsara AIR 1951 SC 318 ....................................................... 15

31.

State of Bombay v. R.M.D. Chamarbaugwala AIR 1957 SC 699 ................................. 15

32.

T.M. Kanniyan v. I.T. Officer, Pondicherry, AIR 1968 SC 637 ...................................... 4

33.

Tej Bahadur Singh and Ors. v State Through Data Din, 1954 CriLJ 1399 ...................... 9

34.

U.P. Power Corpn. Ltd v Ayodhya Prasad Mishra, (2008) 10 SCC 139 ....................... 10

35.

Ugar Sugar Works Ltd. v. Delhi Administration, AIR 1975 SC 1121 ........................... 15

36.

Union Of India & Ors v M.V.Valliappan & Ors (1999) 6 SCC 259 .............................. 13

37.

Vasu Dev Singh & Ors. v. Union of India (UOI) & Ors. (2006) 12 SCC 753................. 7 -BOOKS REFERRED-

1.

DR. DURGA DAS BASU, The Indian Constitutional Law (3rd Ed Kamal Law House, 2011).

2.

KD GAUR, Criminal Law: Cases and Materials (6th Ed. LexisNexis 2013).

3.

M.P. JAIN, INDIAN CONSTITUTIONAL LAW (6th Ed LexisNexis Buttersworth, 2010). VI

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS


4.

C.K. THAKKER, M.C. THAKKER & V.G. RAMACHANDRAN, LAW OF WRITS, Vol. 1 & 2, (6th ed., 2006).

5.

DURGA DAS BASU, SHORTER CONSTITUTIONAL LAW OF INDIA, Vol. 1 & 2. (14th ed., 2009).

6.

H.M SEERVAI., CONSTITUTIONAL LAW OF INDIA, Vol. 1 & 2 (4th ed., 2006).

7.

L.M SINGHVI & JAGDISH SWARUP, CONSTITUTION OF INDIA, Vol. 1, 2 & 3 (2nd ed., 2007). -ARTICLES REFERRED-

1.

Shubhomoy Sikdar, Drunk Driving Behind 70% Accidents In Delhi: Survey. The Hindu, June 16, 2016.

2.

Dara Lee Luca, Emily Owens & Gunjan Sharam, The Effect of Alcohol Regulation on Violence Against Women: Evidence from India, Social Science Research Network.

3.

Chapter 5, Crime in India 2015 Statistics, National Crime Records Bureau, Ministry of Home Affairs.

4.

Murthy Pratima, Culture And Alcohol Use In India. World Cultural Psychiatry Research Review, 2015.

5.

Pia Mäkelä, A Bottle Of Beer, A Glass Of Wine Or A Shot Of Whiskey? Can The Rate Of Alcohol-induced Harm Be Affected by Altering the Population’s Beverage Choices? Contemporary drug problems, National Centre for Biotechnology Information, U.S National Library of Medicine.

6.

WC Kerr & Y. Ye, Beverage-Specific Mortality Relationships In US Population Data. Pubmed - NCBI, Contemplated Drug Probl. 2011 Winter, 561-578.

VII WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS


STATEMENT OF JURISDICTION The writ petition has been filed before the Hon'ble Supreme Court of Indus under Art. 321seeking appropriate remedy for violation of Fundamental Rights guaranteed u/Art. 14, 19(1) (g) and 21 of The Constitution of Indus. The Respondents reserve the right to object to the maintainability of present petition. The Supreme Court has suo-motu transferred the petition pending before the High Court of Dilli Pradesh.2 The Respondents humbly submit to the Jurisdiction. Article 32, Constitution of Indus, 1950 reads Remedies for enforcement of rights conferred by this Part – 1)

The right to move the Supreme Com 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 clauses (1) and

(2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction ill or any of the powers exercisable by the Supreme Court under clause (2). The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

1 2

Article 32, Constitution of Indus, 1950. Article 139A, Id.. VIII



STATEMENT OF FACTS ~ Introduction to Indus and Dilli Pradesh ~ Indus is a Republic in the continent of Asia which is divided into various states and union territories. Dilli Pradesh is one such union territory which is situated in the central part of Indus. It enjoys rich cultural and historical importance. It has also been given special status under the Constitution of India. Dilli Pradesh has been entitled to have a legislative assembly and to enact laws subject to Art. 239AA of the Constitution of Indus. ~ Menace of Alcohol in Dilli Pradesh ~ There had been various incidents caused due to excessive consumption of alcohol in Dilli Pradesh, since 2015. The citizens of Dilli Pradesh raised several concerns regarding the issue. Agitations were also organized by various NGOs and international organizations. The Government of Dilli Pradesh, run by Aap Ki Party took no action in relation to the matter. The Health Minister in his public announcements said that the Government is in deliberations to deal with the problem in the best possible manner. But, no action was taken by them. ~ The General Election of 2016 ~ The General elections were held in March, 2016 and Moody Janta Party formed the Union Government. The party had promised in its manifesto to completely prohibit the sale of alcohol in Dilli Pradesh, if elected. The party won all the 8 seats on Dilli Pradesh. ~ Issuance of the Prohibition Order~ As there is no central law enacted by the Government of Indus that restricts the production, sale, or consumption of alcohol, the government issued a notification through the Lt. Governor of Dilli Pradesh to completely prohibit the sale, distribution, marketing and consumption of whisky, wine, rum, vodka, gin, tequila or any other alcohol within the territory of Dilli Pradesh. The Order excluded Beer and any other alcoholic beverage where the alcohol content is less than 5%. The Order was notified and came into effect from 1 August 2016. ~ Impact of the order ~ The Prohibition Order was acclaimed by the people of Dilli Pradesh. It was welcomed as a move to completely eradicate the consumption of alcohol. After the notification of the Prohibition Order, the Lt. Governor stated that the order has been passed considering the directive principles of state policy. The order was criticized by the State Government of Dilli

IX WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS


Pradesh on the account of loss to state exchequer. It was also stated that the Lt. Governor was not competent to enact the order. ~ Impact on King Bird Liquor Pvt. Ltd. ~ There was complete embargo on the sale, distribution, marketing and consumption of alcohol from 1August, 2016 in Dilli Pradesh. King Bird Liquor Pvt. Ltd, a company dealing with manufacture of premium whiskeys and vodkas was affected due to the ban. ~ Filing of the Present Petition ~ King Bird Pvt. Ltd. filed a petition under Art. 32 of the Constitution of Indus before the Hon’ble Supreme Court of Indus alleging that the Prohibition Order violated its fundamental Art. 14 and 19 of the Constitution of Indus. The State Government of Dilli Pradesh also filed a petition under Art. 226 of the Constitution before the High Court of Dilli Pradesh challenging the legislative competence of the Central Government to enact such a law. The Supreme Court suo motu transferred the petition pending before the High Court of Dilli Pradesh and tagged both the petitions.

X WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS


STATEMENT OF ISSUES

I.

WHETHER

THE

PETITION

FILED BY


II.

KING BIRD

III. WHETHER

THE

ARTICLE 32

IS NOT

HON’BLE COURT?

WHETHER THE CENTRAL GOVERNMENT CAPACITY TO PASS THE

UNDER

THROUGH THE

LT. GOVERNOR

HAD THE

DILLI PRADESH PROHIBITION ORDER 2016?

PROHIBITION ORDER

PASSED BY THE

LT. GOVERNOR

IS NOT

VIOLATIVE OF THE FUNDAMENTAL RIGHTS GUARANTEED UNDER A RT . 14 AND A RT.

19(1)( G) OF THE C ONSTITUTION

XI WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS


SUMMARY OF ARGUMENTS

I.

THAT

THE

PETITION

FILED BY


KING BIRD

UNDER

ARTICLE 32

IS NOT

HON’BLE COURT.

It is humbly submitted that the Petition filed by King Bird is not maintainable under Article 32 of the Indus Constitution. As a company is not the citizen of the country, it has no Fundamental Right under Article 19. Art. 14 cannot be used to invoke the jurisdiction of this Court as it and it is not permissible to the court to speculate about the legislative intent. Even though corporations are recognised, they cannot claim rights equivalent to citizens. II.

THAT

THE

CENTRAL GOVERNMENT

CAPACITY TO PASS THE

THROUGH THE

LT. GOVERNOR

HAD THE

DILLI PRADESH PROHIBITION ORDER 2016?

It is submitted that the Central Government had the power to issue the Prohibition Order in Dilli Pradesh via the Lt. Governor. Firstly, the National Capital Territory of Dilli Pradesh is a Union territory; Secondly, the Lt. Governor is the Administrative Head of Dilli Pradesh as it has the power to make laws regarding it, he acts in his discretion on the directions of the Union Government and he is not bound by the aid and advice of the ministers; Thirdly, the Dilli Pradesh Prohibition Order, 2016 is valid. III. THAT THE PROHIBITION ORDER PASSED BY THE LT. GOVERNOR IS NOT VIOLATIVE OF THE

FUNDAMENTAL RIGHTS

OF THE

CONSTITUTION .

GUARANTEED UNDER

ART. 14

AND

ART. 19(1)(G)

It is submitted that the Order does not violate any Fundamental Right of any individual. Firstly, it does not violate Art. 14 as the classification created by the order is based on reasonable differentiation, this classification has a direct nexus with the objective sought to be achieved by the act and it is not arbitrary. Secondly, the order does not violate any right under Art. 19(1)(g) as there is no fundamental right to trade in alcohol and the order puts reasonable and logical restrictions on the liquor trade.

XII WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS


ARGUMENTS ADVANCED I.

THAT THE PETITION FILED BY KING BIRD UNDER ARTICLE 32 IS NOT MAINTAINABLE BEFORE THE HON’BLE COURT.

It is humbly submitted that the writ petition filed under Article 32 by King Bird Liquor Pvt. Ltd. (hereinafter referred as King Bird) is not maintainable because the incorporated company is not a citizen thus, freedom guaranteed by Article 19(1)(g) is not secured to it. It is well settled that a company cannot maintain a petition under Article 32 of the constitution for enforcement of Fundamental Rights guaranteed under Art.32 of the Constitution. A company, being not a citizen, has no Fundamental Rights under Art. 19 of the Constitution.3 In Tata Engineering & Locomotive Co. v. State of Bihar4 the Hon’ble Court held that a Corporation was not a citizen within the comprehension of Article 19 and therefore, could not complain of denial of fundamental freedom guaranteed by Article 19 to a citizen of this country. These two decisions are an authority for the proposition that an incorporated company being not a citizen could not complain of violation of fundamental freedom guaranteed to citizens under Article 19. Furthermore, it is contended that the situation would not be improve merely by impleading a Director or a shareholder as one of the petitioners because company has a juristic personality independent of the shareholders and the Directors. Trade or business carried on by the company cannot be said to be the trade or business carried on by the Director or Shareholders.5 Art. 14 is merely a facade to invoke the jurisdiction of this Court and it is submitted that when the court is construing a statutory enactment, the intention of the Legislature should be gathered from the language used by it and it is not permissible to the court to speculate about the legislative intent.6 In State Trading Corporation of India Ltd. v. The Commercial Tax Officer, Visakhapatnam7, the court has held that no doubt the existence of corporations as entities is recognised but the entity obtains only such rights as the law confers on it. This entity cannot claim other rights as a matter of course or by standing side by side with citizens.

3

Shree Sidhbali Steels Ltd. and Ors. v. State of U.P. and Ors. Tata Engineering & Locomotive Co. v. State of Bihar (1964) 6 SCR 885. 5 Delhi Cloth & General Mills Co. Ltd. and Ors. v Union of India and Ors., (1983) 4 SCC 166. 6 Polestar Electronic (Pvt.) Ltd. v. Additional Commissioner, Sales Tax and Anr.,(1978 )1 SCC 636. 7 State Trading Corporation of India Ltd. v. The Commercial Tax Officer, Visakhapatnam, (1964) 4 SCR 99. 4

1 WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS


Thus, the writ petition filed by the King Bird is not maintainable in the Hon’ble Court and is liable to be dismissed. II.

THAT LT. GOVERNOR

IS VESTED WITH

POWERS

TO PASS THE

DILLI PRADESH

PROHIBITION ORDER 2016. The counsel humbly submits before this Hon'ble Court that the notification so provided by the Central Government falls within the vires of its competence. In the foregoing submissions, it shall be put forth [A] that the National Capital territory of Dilli Pradesh is a Union Territory under the Constitution of Indus; [B] the Lt. Governor is not bound by the aid and advise clause of the council of Ministers and can act in his own discretion.; [C] The Dilli Pradesh Prohibition Order 2016 is valid. A.

NCT of Dilli Pradesh is amenable to Art. 239.

It is submitted before this Hon'ble Court that Dilli Pradesh is a Union Territory under the Constitution of Indus devoid of any special status. As according to Art. 1 of the Constitution of Indus, Indus is a Union of States and further Clause (2) and (3) classify the distinction between the States and Union Territories specified in the first schedule. Moreover Clause (30) in Art. 366 defines the Union Territory means the territory specified in the first schedule and includes any other territory. 8Dilli Pradesh is categorised as a Union Territory under the same. Since 1911-12 the territory of Dilli Pradesh has been under the control of the Central Government and after the Constitutional Seventh Amendment Act, 1956 it was specified as a Union territory. It was by the Constitution Sixty Ninth (Amendment) Act, 1991, Art. 239AA was inserted in Part VIII of the Constitution9 and added that the Union Territory of Dilli Pradesh shall be called the National Capital Territory of Dilli Pradesh (hereinafter referred to as N.C.T of Dilli Pradesh). Federal Structure is part of the basic structure of the Constitution10 and as according to the Supreme Court the basic structure of the Constitution shall not be altered.11Also the power to make changes to the basic structure of the Constitution vests only in the people sitting, as a

8

INDIA CONST. art. 366, cl. 30. M.P. JAIN, Indian Constitutional Law 1738 (6th ed. Lexis Nexis Buttersworth 2010). 10 Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1; I.R. Coelho v. State of T.N., (2007) 2 SCC 1. 11 Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala and Anr., (1973) 4 SCC 225). 9



nation, through its representatives in a Constituent assembly.12 But as far as Delhi is concerned the Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clause and any such law shall not be deemed to be an amendment of this constitution for the purpose of Art. 368 notwithstanding that it contains any provisions which amends or has the effect of amending Constitution.13 Therefore, it is submitted that the status of Dilli Pradesh does not commensurate to that of a state. Hence it is a territory governed under the complete autonomy of the Union. Dilli Pradesh shall be governed under Art. 239AA however, Clauses 3(b) and 3(c) of Art. 239AA make it abundantly clear that the plenary power to legislate upon matters affecting Delhi still vests with Parliament as it retains the power to legislate upon any matter relating to Delhi and, in the event of any repugnancy, it is the Parliamentary law which prevails. It is, therefore, clear that Union Territories are in fact under the supervision of the Union Government and it cannot be contended that their position is akin to that of the States.14 Thus Art. 239 continues to be applicable to it.15 There are certain Union Territories for which there can is no Legislature. There is a second category of Union Territories as under Art. 239A (i.e., Pondicherry), which has legislatures conferred Parliament. The third category is Delhi. Indeed, a reference to Art. 239B read with clause (8) of Art. 239AA shows how the Union Territory of Delhi is in a class by itself but is certainly not a State within the meaning of Art. 246 or Part VI of the Constitution. As the federal structure presupposes that power to tax is an incident of sovereignty that is one sovereign cannot tax the other sovereign. In other words the property of the state shall be exempt from Union Taxation as a mutual regard and immunity has been provided but in a manner peculiar to our constitutional scheme. Therefore as it was held in case of Delhi the taxes levied by the Delhi Municipal Corporation Act, 1957 enactments constitute “Union taxation” within the meaning of Art. 289(1) and these are Parliamentary laws enacted under and by virtue of the legislative power vested in Parliament by Clause (4) of Art. 246. In sum, it is also a territory governed by clause (4) of Art. 246.16

12

G.V.K. Industries Ltd. & Anr. v. The Income Tax Officer & Anr. (2011) 4 SCC 36. INDIA CONST. art. 239AA, cl. 7. 14 N.D.M.C. v. State of Punjab, AIR 1997 SC 2847. [Hereinafter referred as N.D.M.C ] 15 Balakrishnan Committee Report on Delhi Set-up, 1989. 16 N.D.M.C., Supra at 7. 13



B.

The Lt. Governor is not bound by the aid and advice of the Council of Ministers.

The Counsel humbly submits before this Hon'ble Court that the Lt. Governor is the Administrative Head, directed by the President, of the N.C.T. of Dilli Pradesh. The Lt. Governor is not bound by the aid and advice of the Council of Ministers of N.C.T. of Dilli Pradesh. . In the following sub contentions, the same is sought to be put forth. i.

Union Government is vested with power to make laws in State of NCT.

The counsel humbly submits before this Hon'ble Court that the Parliament has the power under the Constitution to make laws with respect to any matters for N.C.T. Dilli Pradesh. According to Art. 239AA (3)(b), the parliament has the power under the Constitution, to make laws with respect to any matters for a Union Territory or any party thereof notwithstanding anything in sub-clause (a). In case of a repugnancy it is the Parliament Law that shall prevail.17 This necessarily means that so far as the Union Territories are concerned, there is no such thing as List I, List II or List III. The only legislative body is Parliament - or a legislative body created by it.18 In the Parliamentary debate of Rajya Sabha when 69th amendment was tabled in the Parliament it was said, "At no time in the past has it ever been considered possible to make Delhi a fullfledged State. The Constituent Assembly went into the matter in great depth. It was observed during debates that "in the capital city of a large federation like ours the arrangement should be that in the area over which the federal Government has to function daily, practically in all details, that Government should have unfettered power, power which is not contested by another and subordinate Legislature."19 Also as rightly pointed out by a Constitution Bench of this Court in T.M. Kanniyan v. IncomeTax Officer20, the context of Art. 246 excludes Union territories from the ambit of the expression "State" therefore parliament has the legislative power vested in it by Clause (4) of Art. 246 to make laws for the Union territories. Through the bare interpretation of Art. 246(4) and Art. 239AA (3) it is directed that former is subject to no restriction of the Constitution whereas the latter is subject to the provisions of the Constitution. Therefore, Art. 246(4) is

17

INDIA CONST. art. 239AA, cl. 3(c). N.D.M.C., Supra Note 7. 19 Constitution 69th Amendment Bill available at , last accessed on 24th September, 2016. 20 T.M. Kanniyan v. I.T. Officer, Pondicherry, AIR 1968 SC 637. 18



subject to no limitation from Art. 239AA (3). Thus, it proves that the Union of Indus is the sovereign authority in case of matters relating to Dilli Pradesh. ii.

Lt. Governor acts in his discretion on the directions of the Union Government.

It is submitted that the Lt. Governor acts in his discretion on the directions of the Union Government. According to Art. 239 (1) of the Constitution the Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify. Now Art. 239 AA (4) mentions about the executive power of the Lt. Governor with which the Legislative Assembly has power to make laws and also matter in which he is required to act in his discretion provided that in case of a difference of opinion the Lt. Governor shall refer it to the President and shall act accordingly. According to Section 41(1)(i) of the G.N.C.T.D. Act these Lt. Governor shall act in his discretion which fall outside the purview of Legislative Assembly but in respect of which are delegated to him by the President. If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final.21 Now as Clause (3) of Art. 239AA of the Constitution makes it clear that the Parliament will have legislative supremacy with respect to any laws made in Delhi. As a natural corollary, the Central Government will also have executive supremacy over the NCT of Delhi.22 Also as the satisfaction of the President is not the personal satisfaction, it is the satisfaction of Council of Ministers on whose aid and advise the President generally exercises all his powers.23 Therefore as the Legislative power is co-extensive with Executive power of the Union and the Lt. Governor is bound to follow the President, he acts in his discretion with the directions of the Union Government. iii.

Lt. Governor is not bound by the aid and advice clause of the President.

The counsel humbly submits before this Hon'ble Court that the Lt. Governor is not bound by the aid and advise clause of the President. In Devji Vallabhbhai Tandel v. Administrator of Goa, Daman & Diu And Anr24 it was stated that the Administrator even in matters where he is 21

The Government of National Capital Territory of Delhi, § 41(2) (1991). INDIA CONST. art. 73. 23 Samsher Singh v. Union of India, (1974) 2 SCC 831. 24 Devji Vallabhbhai Tandel v. Administrator of Goa, Daman & Diu, (1982) 2 SCC 222. 22



not required to act in his discretion under the Act or where he is not exercising any judicial or quasi-judicial function, is not bound to act according to the advice of the Council of Ministers. Section 44(1) of the Government of Union Territories Act, 1963 which is pari materia with Art. 239AA (4). The proviso to Art. 239 (4) talks about the difference of opinion between the Lt. Governor and his ministers on any matter, thus it provides for a situation where the Lt. Governor can put forth a contrary opinion and is not bound by the aid and advise clause of the President in any matter. Though in Nabam Rebia and Bamang Felix v. Deputy Speaker & Ors.25 the Constitutional Bench held that even though the Governor is authorized to exercise some functions under different provisions of the Constitution, the same are required to be exercised only on the basis of the aid and advice rendered by him under Art. 163 unless the Governor has been expressly authorized by or under a Constitutional provision to discharge the concerned function in his own discretion. The case with the Lt. Governor is different because the matters involving which he has to act in his discretion are wider than the Governor.26 As according to Art. 239AA (4) the Lt. Governor has the Council of Ministers to aid and advise the Lt. Governor in exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion. Now as according to Section 41(2) of The Government of National Capital Territory of Delhi Act, 1991 that if any question arises as whether any matter is or is not a matter as respects with which the Lt. Governor is by or under any law required to act in his discretion, the decision of the Lt. Governor thereon shall be final. In this regard, it is also relevant to refer to Chapter V of the Transaction of Business Rules27 which prescribed the procedure to be followed in case of difference of opinion between the Lt. Governor and the Council of Ministers. Rule 51 the Lt. Governor is competent to direct that action shall be suspended pending the decision of the President on such case or in any case. Rule 52 further provides that where a direction has been given by the Lt. Governor in terms of Rule 51, the Minister concerned shall take action to give effect to such direction. Rule 56 also states that when a matter has been referred by the Lieutenant Governor for the decision of the President further action thereon shall not be taken except in accordance with the decision of the Central Government. It is clear from the above provisions of the Transaction of Business 25

Nabam Rebia and Bamang Felix v. Deputy Speaker & Ors. S.L.P. (C) No.1259-1260/2016. INDIA CONST. art. 239AA, cl. 4. 27 Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993. 26



Rules that it is always open to the Lt. Governor to differ with the decision of the Council of Ministers, in which event, he has to follow the procedure as prescribed under Chapter V of the Transaction of Business Rules. Moreover, Rule 23 makes clear the legislative intent that the proposals specified (i) to (viii) therein are not exhaustive.28 Therefore the Lt. Governor is not bound by the aid and advice of the Council of Ministers decision to act in his own discretion is justified. iv.

The Dilli Pradesh Prohibition Order 2016 is valid.

The counsel humbly submits before this Hon'ble Court that the Dilli Pradesh Prohibition Order is valid. The Supreme Court had held in the case of Ram Jawaya Kapur v. State of Punjab29, that the federal principle or doctrine of separation of powers is not incorporated in the Indian Constitution in the strict and rigid form. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. Delegated legislation, however, involves delegation of rule-making power of legislation and authorises an executive authority to bring in force such an area by reason thereof. The discretion conferred on the executive by way of delegated legislation is much wider. Such power to make rules or regulations, however, must be exercised within the four corners of the Act.30 Similarly in Avinder Singh v. State of Punjab & Anr,31 the validity of tax on foreign liquor imposed by the Municipalities in the State of Punjab on the strength of a Government Notification issued under Section 90(5) of the Punjab Municipal Corporation Act, 1976 was upheld, explaining the concept of excessive delegation to mean that ... however numerous and significant they be, may well be made over to appropriate agencies because the delegate is subject to the authority and control of the principal and exercise of delegated power can always be directed, corrected or cancelled by the principal. Indian Nut Products & Ors. v. UoI & Ors.,32 holds that it is imperative upon the Government to disclose the grounds of its satisfaction enabling it to exercise its statutory power and to disclose the reasons and the existence of circumstances as these are open to judicial review. The Dilli Pradesh Prohibition Order is within the boundaries of Law as the menace was being caused due to high proliferation of alcohol as for instance, according to a survey 70% accidents

28

Govt. of N.C.T. Delhi v. Union of India, 2016 SCC OnLine Del 4308. Ram Jawaya Kapur v. State of Punjab, (1955) 2 SCR 225. 30 Vasu Dev Singh & Ors. v. Union of India (UOI) & Ors. (2006) 12 SCC 753. 31 Avinder Singh v. State of Punjab & Anr, 1979 (1) SCC 137. 32 Indian Nut Products & Ors. v. UOI & Ors., (1994) 4 S.C.C. 269. 29



in Dilli Pradesh were caused by drunk driving.33 Also according to Section 76 of Delhi Excise Act The Government may issue such order and take such measures as may be deemed appropriate to regulate drinking or to enforce prohibition in whole or in any part of Delhi.34 On the facts and circumstances of a case, a subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statue or, say, the Constitution.35 Since the subordinate legislation took into both matters into account i.e. the Constitution or the Delhi Excise Act, 2010 therefore the present order is valid. Thus the counsel on behalf of the Respondents humbly submit before this Hon'ble Court that the Central Government through the Lt. Governor had the capacity to pass the Dilli Pradesh Prohibition Order 2016. III. THAT THE PROHIBITION ORDER IS NOT VIOLATIVE OF THE FUNDAMENTAL RIGHTS. It is humbly submitted that the Prohibition Order passed by the Lt. Governor does not violate any Fundamental Right. That the “Prohibition Order” is not violative of the fundamental right as established in the following submissions: A.

“Prohibition Order” is not violative of Art. 14.

It is humbly submitted that the principle underlying guarantee of Art. 14 is not that the same rules of law should be applicable to all persons within the Indian Territory or that the same remedies should be made available to them irrespective of differences of circumstances. 36 It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.37 Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.38 It does not mean

33

Shubhomoy Sikdar,. Drunk Driving Behind 70% Accidents In Delhi: Survey, The Hindu. 16 June, 2016.last accessed on 24 Sept. 2016. 34 Delhi Excise Act, § 76, (2010). 35 Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of India and Ors., 1985 SCR (2) 287. 36 Chiranjit Lal Choudhuri v Union of India, 1950 SCR 869; B. Krishna Murthi v. State of Andhra Pradesh, 2005 (2) ALT 342. 37 Shashikant Laxman Kale and Anr. v. Union of India, 1990 AIR 2114. 38 D.S. Nakara & Others v. Union of India, 1983 SCR (2) 165; Tej Bahadur Singh and Ors. v. State through Data Din, 1954 CriLJ 1399. 8 WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS


that legislative classification should be scientifically perfect or logically complete.39 Therefore, Art.14 has not been violated by the Prohibition Order as, i.

That the classification is based on intelligible differentia.

The Prohibition Order state that there was a complete prohibition on the “sale, distribution, marketing and consumption of whisky, wine, rum, vodka, gin, tequila or any other alcohol”40 within the territory of Dilli Pradesh. However, it expressly excluded Beer and any other alcoholic beverage where the alcohol content is less than 5 % from the ambit of prohibition. Art. 14 permits reasonable classification for the purpose of disposition.41 The classification must be rational, that is to say, it must be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out. The condition that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together must be fulfilled.42The subject matter of legislation should be a welldefined class founded on an intelligible differentia which distinguishes that subject matter from the others left out.

43

In other words, equals must be treated alike in like circumstances and

conditions44 and such classification is based in legal and relevant consideration.45 There is real and substantial distinction between the beer and liquor having alcohol content less than 5% and the hard liquor with more alcohol content. It is submitted before the Court that the Delhi Excise Act, 2009, Beer has been defined separately in the section 2(7) and brewery has been defined in 2(14) in contrast to the umbrella term liquor defined in the section 2(46). Fermented liquor has been defined in the section 2(32). It includes Beer, ale, stout etc. but not whisky or vodka. Beer is manufactured by the way of fermentation whereas the hard liquor like whisky, vodka etc is further distilled. The beverages like whisky, vodka, gin etc… come under the category of Spirits under Section 2(66) as they are manufactured by the way of distillation. Moreover, the Schedule of the Delhi Excise Act, 2009 which deals with the Excise duty, countervailing duty and special duty on all intoxicants which are produced, manufactured, transported or imported into Dilli Pradesh has two separate entries for Beer and other liquor.

39

Dharam Dutt v. Union of India, (2004) 1 SCC 712. Moot Proposition ¶ 7. 41 S.K. Chakraborty v. Union of India, (1988) 3 SCC 575. 42 Special Courts Bill, 1978, In re, (1979) 2 SCR 476. 43 Dharam Dutt v. Union of India, (2004) 1 SCC 712. 44 Parvej Aktar v. Union of India, (1993) 2 SCC 221. 45 U.P. Power Corpn. Ltd v. Ayodhya Prasad Mishra, (2008) 10 SCC 139. 40



The rates at which the duty is charged on these beverages has been mentioned separately. The Indian Liquor and Foreign Liquor (including whisky, vodka, gin etc.) are charged 400 per cent of the wholesale price. Beer and Cider (Indian and Foreign) is charged 200 per cent of the wholesale price. Even though according to the Schedule, wine also has a separate entry, it is prohibited under the order because its alcohol content is more than 5%. The Order has created a separate class of Liquor with alcohol content lower than 5%, (which includes Beer- a fermented alcohol) within the larger category of Potable Alcohol. The separate class has been created on the basis of alcohol content. Hard liquor like whisky, vodka etc. is different from Beer which is manufactured using Fermentation. Thus, the subject matter of legislation is based on an intelligible differentia which distinguishes the subject matter included from the others left out. ii.

Existence of Rational nexus between the classification & the objective of the order.

The condition that the differentia adopted as the basis of classification must have a rational or reasonable nexus with the object sought to be achieved by the statute in question is also fulfilled. It is submitted before the court that there is a connection between alcohol consumption and menaces caused due to it, like drunken driving46, violent sexual crimes47, and other crimes against women like domestic violence etc.48The harmful impact on health due to excessive alcohol consumption has also been observed.49 It is humbly submitted before the Court that the distinction and the classification made in the order has a reasonable nexus with the objectives it aims to achieve. The order aims to reduce the menaces caused due to excessive alcohol consumption in Dilli Pradesh. Different types of alcohol have different effects on human mind and body. In the study conducted on the effect of different alcoholic beverages on Human Behaviour, it was found that there is strong relation between violence and spirits (the distilled liquor). It was observed-

46

Sikdar, Shubhomoy. "Drunk Driving Behind 70% Accidents In Delhi: Survey". The Hindu. N.P., 2016. Web. 24 Sept. 2016. 47 Biswas, Tanima and Shamik Ghosh. "Delhi Gang-Rape Case: Bus Driver Was Often Drunk, Picked Fights". NDTV.com. N.p., 2016. Web. 24 Sept. 2016. 48 “85% Crime against Women Due To Alcoholism: NCRB - Times Of India". The Times of India. N.P., 2016. Web. 24 Sept. 2016. 49 Murthy, Pratima. Culture And Alcohol Use In India. World Cultural Psychiatry Research Review, 2015. Web. 24 Sept. 2016. 10 WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS


There are a few types of problems where spirits, when consumed in concentrated form, seem to have a special association with harm. The most unarguable of these is overdose or poisoning; it is very difficult to die of an overdose of 2.8% beer, but not so hard with a beverage with 40% ethanol content. Particularly where there is a strong cultural association of alcohol and violence, spirits also seem to be particularly implicated.50 In the study conducted by Kerr & Ye (2011), based on the evidence from a number of time series studies carried out in the US, spirits were found to be more strongly related to, or the only beverage type with a significant detrimental association with, cirrhosis, IHD and head and neck cancer mortality.51 The standard drink of 12 fl oz of regular beer with about 5 % alcohol is equivalent to 1.5 fl oz of spirits like whisky, gin, rum, vodka, tequila etc with alcohol content 40%. It may be argued that the prohibition of liquor with alcohol more than 5% would fail as an individual may drink more beer which may have the same impact as the hard liquors. However, even if substitution effects may potentially lessen the intended effects of policies directed at problems associated with one beverage type, marked effects may still be achieved sometimes. Also evidence from economic studies lends support to the idea that substitution is likely to be partial but not complete: cross-price elasticises for different beverage types in comparison to own-price elasticises are small and unsystematic.52 The order does not violate the Fundamental Right to Equality under Art. 14. The order is an endeavour by the Government to reduce the menace caused due to alcohol consumption and maintain the peace in the society. The order in no manner attempts to create a separate class of beer manufacturers. The order aims to slowly limit the consumption and then phase out alcohol consumption completely. It can also be seen as a preventive measure to avoid the deaths that may be caused due to sale of Hooch as observed in other states who have initiated Prohibition.

50

Pia. Mäkelä, A Bottle Of Beer, A Glass Of Wine Or A Shot Of Whiskey? Can The Rate Of Alcohol-Induced Harm Be Affected By Altering The Population’s Beverage Choices?". Contemporary drug problems 38.4 (2011) last accessed on 24 Sept. 2016.( Hereinafter referred to as Altering Choices). 51 WC Kerr and Y Ye. Beverage-Specific Mortality Relationships In US Population Data. - Pubmed NCB", Ncbi.nlm.nih.gov. last accessed on 24 Sept. 2016. 52 Altering Choices, Supra at 45. 11 WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS


It is further contended before the Hon’ble Court that as the Order is not arbitrary and does not violate the Art. 14. In the case of Census Commissioner & Ors v. R. Krishamurthy53, the Supreme Court heldThe court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded ipse dixit offending the basic requirement of Art. 14 of the Constitution. It is submitted before the court that the Supreme Court has held that it is settled law that differentiation is not always discriminatory. If there is a rational nexus on the basis of which differentiation has been made with the object sought to be achieved by particular provision, then such differentiation is not discriminatory and does not violate the principles of Art. 14 of the Constitution.54 In the case of BALCO Employees Union (Regd.) v. Union Of India & Ors55, the Supreme Court held, In a democracy, it is the prerogative of each elected Government to follow it's own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the Court. It is humbly submitted before the Court that there is a reasonable nexus between the classification and the objectives sought to be achieved by the Order. iii.

That the Prohibition Order is not arbitrary.

It is humbly submitted before the Hon’ble Court that the Prohibition Order is not arbitrary. Moreover, no enactment can be struck down by saying that it is arbitrary or unreasonable. 56 The Order has been issued to bring about a change in the society. It aims to rid the National Capital Territory of Dilli Pradesh from all the menaces associated with the alcohol

53

Census Commissioner & Ors v. R. Krishamurthy (2015) 2 SCC 796. Union of India & Ors. v. M.V. Valliappan & Ors. (1999) 6 SCC 259. 55 Balco Employees Union (Regd.) v. Union of India & Ors (2002) 2 SCC 333. 56 State of Andhra Pradesh and Ors. v. McDowell& Co., (1996) 3 SCC 709. 54



consumption. It has been passed keeping in mind the Directive Principles of State Policy which every Government should aim to achieve. The order is not arbitrary as firstly, only alcoholic beverages with alcohol content over 5% (including beer) are banned. Secondly, it does not ban alcohol used for industrial, medicinal and toilet preparations. It is respectfully submitted that the order does not violate the Fundamental Right to Equality under Art. 14. “Prohibition Order” is not violative of Art. 19(1)(g).

B.

It is humbly submitted before the Hon’ble Court that Art. 19(1)(g) grants “a fundamental right to practice any profession or to carry on any occupation, trade or business.” The restrictions that can imposed on the right to freedom of trade have been stated in Art. 19(2) to 19(6). i.

There is no fundamental right to trade in liquor.

It is humbly submitted that no individual has a fundamental right to trade in liquor and other intoxicating substances under Art. 19(1) (g). It has been declared and established by the Supreme Court in plethora of cases. The Supreme Court has held that no one has an inherent right to sell intoxicating liquors in retail sale. A citizen has no such privilege. The State may entirely prohibit it or permit it under conditions. The manner and extent of regulation rest within the discretion of the State as it is a business which is harmful for the society.57 The Supreme Court has held that there is no Fundamental Right to carry on trade in liquor. The Court has said that the state has the police power to enforce public morality and to prohibit trades in noxious or dangerous goods.58 Reliance has been placed on Art. 47, a Directive Principle, in support of this view. Art. 47 reads which enumerates as: “…in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health…” The State reserves the right to restrict and even prohibit the liquor trade to enforce this Directive Principle and for the betterment and well being of the society. In State of Bombay v. F.N.

57 58

Cooverji v. Excise Commissioner, Ajmer AIR 1954 SC 728. Nashirwar v. State of M.P. (1975) 1 SCC 29. 13



Balsara59 the Hon’ble Supreme Court while deciding the validity of the Bombay Prohibition Act, 1949 held that in view of the provisions of Art. 47 of the Constitution, the total prohibition on potable liquor would be reasonable. The Court has observed that a citizen has no Fundamental Right to trade or business in intoxicating liquors and that trade or business in such liquors can be completely prohibited. Because of its pernicious and vicious nature, dealing in intoxicating liquors is considered to be res extra commercium. 60 Res extra commercium is a doctrine introduced by Chief Justice Das of the Supreme Court in the case, State of Bombay v. R.M.D. Chamarbaugwala61, which has the effect of constricting the scope of fundamental rights by rendering as constitutional outcasts certain purportedly “immoral” or “noxious” activities. It does this by blocking these activities from falling within the purview of the protection of fundamental rights. The Supreme Court has held that the state can create a monopoly either in itself or in an agency created by it for manufacture, possession, sale and distribution of liquor as a beverage. The state may impose restrictions, limitations and even prohibition on intoxicating liquors.62 ii.

Order imposes reasonable restriction on the Fundamental Right to Trade.

On the other hand in even if it were to be argued that trade in intoxicating liquors falls within the scope of Art. 19(1)(g), the State could still impose severe restrictions, or even prohibition, on the trade in intoxicating liquors under Art. 19(6). It can be done to achieve the Directive Principle enumerated in Art. 47.63 In Nashirwar v. State of Madhya Pradesh.64 while dealing with the question whether the State has power to grant liquor licence by public auction and whether the said power violated fundamental right under Art. 19(1)(g) of the Constitution, the Court stated three reasons for why there is no fundamental right to trade in Liquor: First, there is the police power of the State to enforce public morality to prohibit trades in noxious or dangerous goods. Second, there is power of the State to

59

State of Bombay v. FN. Balsara AIR 1951 SC 318. Khoday Distilleries Ltd. v. State of Karnataka (1995) 1 SCC 574. 61 State of Bombay v. R.M.D. Chamarbaugwala AIR 1957 SC 699. 62 Ugar Sugar Works Ltd. v. Delhi Administration, AIR 1975 SC 1121. 63 State of Andhra Pradesh v. McDowell & Co. AIR 1996 SC 1627. 64 Nashirwar v. State of M.P. (1975) 1 SCC 29. 60



enforce an absolute prohibition of manufacture or sale of Intoxicating liquor. Third, the history of excise laws shows that the State has the exclusive right or privilege of manufacture or sale of liquor. It is submitted before the Court that the Union Government can impose restrictions on the liquor trade even by a subordinate legislation. Therefore, the order issued by the Lt. Governor of Dilli Pradesh is completely constitutional. In the case of Khoday Distilleries Ltd. v. State of Karnataka65, the Supreme Court heldClauses (2) to (6) of Art., 19 make no distinction between the law made by the legislature and the subordinate legislation for the purpose of placing the restrictions on the exercise of the respective fundamental rights mentioned in Art. 19(1)(a) to (g). …There is nothing in this provision which makes it imperative to impose the restrictions in question only by a law enacted by the legislature. In Har Shankar & Ors. v. The Dy. Excise & Taxation Comm..66, the Hon’ble Supreme Court has said that there is no inherent right to trade in alcohol. Trading in liquor is a privilege and not a right. The court has accepted that liquor traffic is source of crime. Hence, it is subject to restrictions by the state. The State, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants its manufacture, storage, export, import, sale and possession. This power of control is an incident of the society’s right to self-protection and it rests upon the right of the State to care for the health, morals and welfare of the people. Liquor traffic is a source of pauperism and crime (pp. 539, 540, 541). As there was inaction on the part of the Dilli Pradesh Government to check the widespread menaces being caused due to alcohol consumption, the Union Government through the Lt. Governor of Dilli Pradesh issued the Prohibition Order. This order does not violate the Fundamental Right of King Bird Liquor Pvt. Ltd. as there is no Fundamental Right to trade in liquor. iii.

That the order is not arbitrary in nature.

It is also submitted before the court that the order does not prohibit manufacturing of alcohol.

65 66

Khoday Distilleries Ltd. v. State of Karnataka (1995) 1 SCC 574. Har Shankar & Ors. v. The Dy. Excise & Taxation Commissioner, AIR 1975 SC 1121. 15



The order prohibits sale, distribution, marketing and consumption of whiskey, wine, rum, vodka, gin, tequila or any other alcohol. This implies that the prohibition is only on the Hard Potable liquor with alcohol content more than 5%. However, there is no prohibition on alcohol used in medicinal and toilet preparations. It does not infringe upon the rights of individuals in the liquor industry involved in production of alcohol for any purpose except as a beverage. It is contended that the order is not arbitrary and discriminatory. The restrictions imposed are well founded and reasonable. It is humbly submitted before the Hon’ble Court that the Prohibition Order does not violate any Fundamental Right enshrined in the Constitution.



PRAYER FOR RELIEF Wherefore in the light of arguments advanced, authorities cited and facts mentioned the Hon’ble Court may be pleased to adjudicate by issuing an appropriate writ, direction or order that:

That the Dilli Prohibition Order, 2016 passed by Lt. Governor of Dilli Pradesh shall be upheld as valid as the Lt. Governor has exercised this power within the scope of its jurisdiction and without violating any Fundamental Rights of the King Bird or any other citizen/person of Indus.

And any other relief that the Hon’ble Court may be pleased to grant in the interests of justice, equity and good conscience. All of which is humbly submitted.

Sd/COUNSELS FOR THE RESPONDENTS

XIII WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS

Respondent_TC 9 (1)

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