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BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016
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Before
THE HONOURABLE HIGH COURT, ODISHA
Writ Petition Case No. ***/2016

IN THE MATTER OF
[A Writ Petition, by the Petitioner i.e. Save Odisha Organization, under Article 226 of the
Constitution of India, against the scheme introduced by the State of Odisha.]
[A Writ Petition, by the Petitioner i.e. Sri Ram Kumar Rath, Article 226 of the Constitution
of India, against the violation of fundamental rights by the State Of Odisha]
In The Matter Of:
Save Odisha Organization v. The State of Odisha.

In The Matter Of:
Sri Ram Kumar Rath v. State of Odisha
MEMORANDUM on behalf of RESPONDENTS

1
TABLE OF CONTENTS
Table of Contents ....................................................................................................................... 2

Index of Abbreviations .............................................................................................................. 3
Dictionaries ................................................................................................................................ 4
BOOKS, COMMENTARIES AND DIGESTS ......................................................................... 4
Table Of Cases ........................................................................................................................... 5
Statement of Jurisdiction............................................................................................................ 7
Statement of facts ....................................................................................................................... 8
Statement of Issues .................................................................................................................. 10
Summary of Arguments ........................................................................................................... 11

2
INDEX OF ABBREVIATIONS
A.C.
Appellate Cases
AIR
All India Reporters
All ER
All England Law Report
Anr.
Another
Bom DB
Bombay Division Bench
Bom
Bombay
CC
Company Cases
Ltd.
Limited
n.
Note
Ors.
Others
p.
Page
P.
Petition
Para
Paragraph
pvt
Private
P. Ltd
Private Limited
Rev
Review
SC
Supreme Court
SCC
Supreme Court Cases
Versus
v.

3
INDEX OF AUTHORITIES
STATUTES
Indian Constitution, 1950.
Income Tx Act, 1961.
DICTIONARIES
1. Compact Oxford Reference Dictionary Ninth Edition.
2. Blacks Law Dictionary Ninth Edition, 2009.
BOOKS, COMMENTARIES AND DIGESTS
Dr. U.P.D. Kesari, Administrative Law, Central Law Publications, Twentieth Edition2014.
2. Kailash Rai, Taxation Laws, Allahabad Law Agency, Ninth Edition.
3. Prof. M. P. Jain, Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa, Fifth
Edition-2009.
4. V.N. Shukla, Constitution of India, Eastern Book Company, Eleventh Edition-2008
5. Dr. J. N. Pandey, The Constitutional Law of India, Central Law Agency, Forty- sixth
Edition-2009.
6. P. K. Majumdar, R. P. Kataria, Commentary on the Constitution Of India, Orient
Publishing Company, Tenth Edition- Volume 1, 2011.
7. Durga Das Basu, Case book on Indian Constitutional Law, Kamal Law House, Second
Edition-2007.
1.

4

TABLE OF CASES
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
A. G. Prayagi v State of M.P. and other AIR 1987 MP.................21

Air India Statutory Corpn v. United Labour Union, (1977) 9 CC 377: AIR 1997 C 645.......19
Akhila Bharatiya Soshit Karamcharai Sangh Vs. Union of India......................................19
Anand v. H. D. Deve Goda AIR 1997 C 273.................................................................21
Anukul Chandra Pradhan v. Union of India and Ors. (1996) 6 SCC.......21
Blyth v. Birmingham Waterworks Co. 1856 11 EX CH 781, 156 ER 1047...........................20
Central Inland Water Transport Corporation v Brojo Nath Ganguly (1986) 3 SCC 156.........19
D. K. Basu v. State of West Bengal 1997 1 SCC 416.....................................................24
Deepti Anil Devasthali and Leena Anil Devastnali vs. State of Maharashtra 2009 111 Bom.
LR..............................................................................................................................22
Delhi Municipal Worker's Union v. Municipal Corporation of Delhi AIR 2001 Delhi 68......13
G.D. Karkara v. T.L. Shevde and others....................................12
Isha Beevi v. Tax Recovery Officer (1976)1 SCC 70: AIR 1975 SC 2135...........................12
Janta Dal v. H.. Choudhary. AIR 1993 C 892 at p. 918.................................................21
Jiwan Mal Kochar v. Union of India..............................................................................24
Kabul Singh v. Niranjan Singh, AIR 1958 Punj 168.......................................................12
Kartongen Kemi Och Forvaltning AB & Ors. vs. State through CBI, MANU/DE/0167/2004
................................................................................................................................21
Kini v. Union of India....................................................................................................21
Krishna Kant Jaiswal v. Vice Chancellor, Banara Hindu University, Varanasi, AIR 1984
All...........................................................................................................................13
L.C. Jayakaran and Minor Jaison Vs. Thanthai Periyar Transport Corporation Limited.........22
Lingappa Pochanna Appelar v. State of Maharashtra (1985) 1 SCC 479........................19
Madras v. State of Tamil Nadu, AIR 1985 NOC 165......................................................12
Naveen Jindal Vs. Zee Media Corporation Ltd. and Ors. MANU/DE/0662/2015...........21
Nilabati Behera v. State of Orissa...................................................................................24
President, Mahavidyalaya Sikha Sudhar Sngharh amity v. State of Bihar and other. AIR 1995
Patna................................................................................................................21
Rabindra Nath Ghosal v. College Of Calcutta (2002) 7 SCALE 137..............................24
Railway Board v. Chandrima Das.................................................................................. 24
Re: M.V. Jayarajan MANU/KE/2293/2011....................................................................22
Roe Vs. The Ministry of Health......................................................................................20
S.N. Bhargava vs Assistant Commissioner Of Delhi on 24 October, 1994, 1995 52 ITD.14
Saraswati Industrial Syndicate Ltd. V. Union of India, AIR 1975 SC 46.........................12
State of A.P. and others v. Sree Rama Rao.....................................................................11
State of Andhra Pradesh and others v. Chitra Venkata Rao........................................... 11
State Of Himachal Pradesh & Anr vs Umed Ram Sharma & Ors on 11 February, 1986, 1986
.......................................................................................................................................14
Subhas Kumar v. State of Bihar, AIR 1991 SC 420........................................................13
Sukhnandan Thakur v. State of Bihar AIR 1957 Pat 617...............................................19
Swatanter Kumar vs The Indian Express Ltd. & Ors. on 16 January,
2014...............................................................................................................................22

5

37. The Warangal Chamber of Commerce v. Director of Marketing, (1974) 2 Andh. W.R.
382.....................................................................................................................................12
38. Ubhah kumar v tate of bihar AIR 1991 C 420...............................................................21
39. Union of India and others v. P. Gunasekaran 2015(2) SCC 610....................................11
40. United India Insurance Co., Ltd. v S.M. Kamala. MANU/TN/0399/2010......................22
41. Veena Sethi v. State of Bihar.........................................................................................24
42. Vinod Kumar Kanojia v. Union of India AIR 2011, Del. 73..........................................21

6
STATEMENT OF JURISDICTION
THE RESPONDENTS HAVE THE HONOUR TO SUBMIT BEFORE THE HONBLE

HIGH COURT THE MEMORANDUM FOR THE RESPONDENTS IN THE WRIT
PETITION NO. ***/2016 FILED BY SAVE ODISHA ORGANIZATION AND SHRI
RAM KUMAR RATH, UNDER ARTICLE 226 OF THE INDIAN CONSTITUTION, 1950.
THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND
ARGUMENTS IN THE PRESENT CASE.

7
STATEMENT OF FACTS
That a Whatsapp video was circulated showing a person carrying his dead child on National
Highway No.5 with a message regarding apathy of people of the State Government towards
its people. On account of hue and cry over the matter, the Odisha State Government directed
the collector, Cuttack to enquire into the matter and submit a report.
That there were several newspaper articles flashing that the hospital authorities, having failed
to provide help after the death of the child, the father was compelled to carry the body on his
shoulders as he did not have enough money to pay for transport. There were also several
news articles highlighting violation of rights and disrespect to the departed sole besides
questioning the governance.
That the news having spread across the globe, several NGOs and Charitable Organizations
came forward to help the poor man and also promised donations in his favour. The Collector
having enquired into the matter, later submitted that, the person on learning about the death
of his child, left the hospital without informing anyone.
That hospital being a Government Hospital, free facilities were available which he could have
availed by making proper application. The Collector ultimately put the blame on that person
and gave a clean chit to the hospital authorities.
That the said person however, on being asked by the media, was not able to show any
document from the hospital which could prove that he had asked the hospital authorities for
help before leaving. The media and press suggested that the above press statement was
coerced by top officials and not voluntary as because, the viral video and the interviews
published earlier, showed statements contrary to the above.
That the Chief Minister being targeted over the matter, finally, came out and declared that all
the monetary help that the person receives shall be tax free and the Government has decided
to introduce free transport to and from Government Hospitals.
That an organization named Save Odisha, headed by a political leader belonging to one of the
Non-ruling parties, who also happens to be an advocate, approached the High Court of Orissa
challenging that providing free transport to and fro from Government Hospitals will be an
unnecessary burden on the Government as the Government already has existing schemes that
provide free ambulance, free medicine, food, etc.
That on the other hand, one Sri Ram Kumar Rath, an advocate from the local bar filed a
Public Interest Litigation(PIL) claiming compensation for the said person on account of
Violation of his fundamental rights and disrespect towards citizens of the state alleging
inaction by the state besides praying for stringent actions against the erring officials. Sri Ram

8

Kumar Rath also challenged the decision of the state to exempt tax and introduce new
scheme which was neither necessary nor relevant to meet the present issue. The Honble
High Court of Orissa has directed for hearing of both the matters together.

9
STATEMENT OF ISSUES
The following questions are presented before the Honble High Court in the instant matter:
ISSUE 1:Whether the cases are maintainable as laid?
ISSUE 2:Whether tax exemption granted by the Government is opposed to interests of the public and
tax payers of the state?
ISSUE 3:Whether the new Scheme introduced by the Government necessary and Constitutional?
ISSUE 4:Whether there has been any violation of any Constitutional right?
ISSUE 5:Whether the petitioners are entitled for any relief from the present petitions

10
SUMMARY OF ARGUMENTS
I.
WHETHER THE CASES ARE MAINTAINABLE AS LAID?
It is most humbly submitted before the High Court of Orissa that the present petition is not
maintainable under Article 226 because the High Courts should not venture into the reappreciation of information or interfere with the conclusion arrived at by the State authority
in the inquiry proceedings, if the same are conducted in accordance with law, or go into the
reliability of information, or interfere, if there is some legal evidence on which the findings
are based. Therefore, the instant petition is not maintainable.
II.
WHETHER TAX EXEMPTION GRANTED BY THE GOVERNMENT IS

OPPOSED TO INTERESTS OF THE PUBLIC AND TAX PAYERS OF THE
STATE?
It is most humbly submitted before the High Court of Orissa that tax can be exempted under
certain special circumstances under the purview of section 10(10BC) and Sec 10(17A) of the
Income Tax Act, 1961. The interests of the public and tax payers of the state will not be
hampered since these are done for the welfare of the people and government does allocate
extra funds for that rather the distribution of money is done with the existing revenue in hand.
III.
WHETHER THE
NEW
SCHEME
INTRODUCED
GOVERNMENT NECESSARY AND CONSTITUTIONAL?
BY
THE
It is most humbly submitted before the Honble High Court that the scheme
introduced by the State is of immense importance and necessity. The State has proceeded
with the scheme for alleviating the miseries regarding hearse service to beneficiaries for
carrying the corpse from hospital to their intended destination.

11

The scheme (Mahaprayan), launched would facilitate free transportation of bodies
from government hospitals to residence of the deceased. The mortuary vans will be parked at
all district headquarter hospitals and three medical college-cum-hospitals in the state.
IV.
WHETHER THERE HAS

CONSTITUTIONAL RIGHT?
BEEN
ANY
VIOLATION
OF
ANY
It is most humbly submitted that there has been no violation of any Constitutional
right in the instant case. This legal action initiated before this Honble Court for the
enforcement of public interest because some legal rights were affected is ill-founded. It is
humbly submitted that the petitioner has found the PIL as a handy tool of harassment. This
rampant abuse of PIL through privately motivated interests in the disguise of the so-called
public interests by the petitioner should be condemned.
V.
WHETHER THE PETITIONERS ARE ENTITLED FOR ANY RELIEF

FROM THE PRESENT PETITIONS?
It is humbly submitted before the Honble High Court that the Petitioners are not
entitled to any form of relief as the aggrieved father has already been granted adequate
monetary help from the State. Moreover it is humbly pleaded that the State Government is
not guilty of any act which could cause harm to the father of the deceased child.

12

ARGUMENT ADVANCED
1. WHETHER THE CASES ARE MAINTAINABLE AS LAID?
It is most humbly submitted before the High Court of Orissa that the present petition is not
maintainable under Article 226 of the Constitution of India because the High Courts should
not venture into the report of the Collector or interfere with the conclusion arrived at by the
State authority in the inquiry proceedings, if the same are conducted in accordance with law,
or go into the reliability of the findings.
Furthermore, it is most humbly stated that the High Court may interfere if the findings are
wholly arbitrary and capricious based on no evidence which no reasonable person could have
ever arrived it. In this case the findings were not arbitrary and the Collector after doing the
needed enquiry and investigation arrived at a conclusion 1
The State humbly pleads that in the State of Andhra Pradesh and others v. Chitra Venkata
Rao2, the same principles which has been laid down in are discussed.
It is most humbly contended that the manner in which the investigation was done was
not inconsistent with rules of natural justice and were neither violative of natural
justice so there is no reason for the High Court to not trust the competent authorities
in this case.
1.1. WRIT OF MANDAMUS.
It is most humbly pleaded that for the present case the writ of mandamus is not
maintainable since there was not a failure to perform a duty. The victim being a poor and
illiterate person was ignorant and unaware about the free facilities that were available to him
and without asking or informing anyone about it he went out of the hospital carrying his dead
child.
The State contends that since a writ of mandamus, is in the form of command directed
to the inferior Court, tribunal, a board, corporation or any administrative authority, or a
person requiring the performance of a specific duty fixed by law or associated with the office
occupied by the person.3 If this is to be analyzed properly we can come to a conclusion that
any reasonable person bereaved by the loss of his child would go around and ask for help.
Union of India and others v. P. Gunasekaran 2015(2) SCC 610; State of A.P. and others v. Sree Rama Rao
(1975) 2 SCC 557
3
Kabul Singh v. Niranjan Singh, AIR 1958 Punj 168.
2

13

It is a very well known fact that in a government hospital there would be hundreds of
patients, how the hospital authorities will help him if he doesnt ask for it. If one thinks
logically if free facilities were available why will the hospital authorities deny giving him
access to those services.
Furthermore, it is most humbly contended that no occasion for the issue of a writ of
mandamus can arise unless the applicant shows non-compliance with some mandatory
provision and seeks to get that provision enforced because some obligation towards him is
not carried out by the authority alleged to be flouting the law.4
Applicant for the issue of a mandamus must show that he has a right to compel the
government to act in a particular manner. In the absence of any such right, mandamus cannot
be granted. The existence of such right is the sine qua non for the issuance of the writ.5
1.2. LOCUS STANDI.
While expanding the scope of the 'Locus Standi' one must be careful to see that the
member of the public, who approaches the court in case of this kind, is acting bona fide and
not for personal gain or private profit or political motivation or other oblique consideration.
The court must not allow its process to be abused by politicians and others.6 This observation
makes it clear that this liberal rule of locus standi might be misused by vested interests.7
In the case of G.D. Karkara v. T.L. Shevde and others8 in order to preserve the
purity and sanctity of the P.I.L. the court issued following directions :
1. The Court must encourage genuine and bona fide PIL and effectively discourage and curb
PIL filed for extraneous considerations.
2. Instead of every individual judge devising his own procedure of dealing with the PIL it
would be appropriate for each High Court to properly formulate rules for encouraging the
genuine PIL and discouraging PIL filed for oblique motives.
In the instant case public interest litigation has been used like a weapon against the
Government and court needs to see behind the beautiful veil of public interest there is an ugly
private malice, vested with publicity seeking interest.9 The victim in this case doesnt have
any evidence that when he asked for aid, it was denied to him by the hospital authorities and
on top of that the collector also gave a clean chit to the hospital authorities, the fault and
4
Isha Beevi v. Tax Recovery Officer (1976)1 SCC 70: AIR 1975 SC 2135
The Centre for the Action of Law, Madras v. State of Tamil Nadu, AIR 1985 NOC 165; Saraswati Industrial
Syndicate Ltd. V. Union of India, AIR 1975 SC 46; Halsbury's Laws of England, 3rd Edn., Vol. 13.p. 106; The
Warangal Chamber of Commerce v. Director of Marketing, (1974) 2 Andh. W.R. 382
6
Professor A.T. Markose writes in his book JUDICIAL CONTROL OF ADMINISTRATIVE ACTIONS
7
A.T. Markose, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION IN INDIA, p.364.)
8
AIR 1952 Nag. 333
9
Delhi Municipal Worker's Union v. Municipal Corporation of Delhi AIR 2001 Delhi 68
5

14

ignorance of the victim cannot be ignored here. This case is nothing but a vexatious and
frivolous attempt to attack the government.
Therefore, it is most humbly contended that Public Interest Litigation cannot be
invoked by a person or body of persons to satisfy his or its personal grudge and enmity. If
such petitions are entertained it would amount to abuse of process of the Court, preventing
speedy remedy to other genuine petitioners from this court.10
10
Subhas Kumar v. State of Bihar, AIR 1991 SC 420

15
2. WHETHER TAX EXEMPTION GRANTED BY THE GOVERNMENT IS

OPPOSED TO INTERESTS OF THE PUBLIC AND TAX PAYERS OF THE
STATE?
It is most humbly submitted before the High Court of Orissa that tax can be exempted
under certain special circumstances under the purview of section 10(10BC) and Sec 10(17A)
of the Income Tax Act, 1961. The interests of the public and tax payers of the state will not
be hampered since these are done for the welfare of the people and government does allocate
extra funds for that rather the distribution of money is done with the existing revenue in hand.
It is most humbly contended that taking into consideration the provision for ambulance
service on which service tax is leviable. It does not fall into the definition of goods under
the Odisha Vat Act 2004 hence sales tax is not leviable and nor is it an income on which
income tax can be levied. Excise is levied only on manufacturing.
2.1. EXEMPTION CLAUSES UNDER LAW.
Customs Duty is only levied when goods are imported. By way of the notification
attached, the Central Government in 2012 has already exempt Healthcare Services from
Service Tax. Hence exemption of tax by the State Government is in consonance with the
finance act 2012 and the fiscal policy of India.
Furthermore, it is pleaded that the compensation amount received or receivable from
Central or State Govt. or Local authority on account of "disaster" is just like an ex-gratia
amount given to the victim. This amount is not included as income either in the definition of
Income under Section 2 (24) or Section 28 or in Section 56(2) of Income Tax Act, 1961.
Thus this cannot be termed as income for purpose of taxation.
Moreover, it is most humbly stated that in order to remove the ambiguity regarding taxing
of the compensation received on account of disaster, the Finance Act, 2007 has inserted a
new clause (10BBC) in section 10 of IT Act. However, out of this compensation, the amount
which was allowed as deduction either in business or otherwise, allowed as deduction under
the other provisions of the Act, is to be excluded and only the balance is exempt.
The expression "disaster" shall have the same meaning as defined under clause (d) of
Section 2 of the Disaster Management Act, 2005. Under this clause "disaster" means
catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or
manmade causes, or by accident or negligence which results in substantial loss or life or
human suffering or damage to and destruction of property or damage to or degradation of

16

environment and is of such a nature or magnitude as to be beyond the coping capacity of the
community of the affected area.
In the present case taking into consideration the suffering of the victim and the trauma
that he went through, it can be very well stated that his situation comes under the definition of
disaster. It is most humbly stated that in view of the exemption allowed u/s 10(10BC) which
states that;
This clause exempts any amount received or receivable as compensation by an
individual or his legal heir on account of any disaster
(1) Such compensation should be granted by the Central Government or a State
Government or a local authority
(2) However, exemption would not be available in respect of compensation for
alleviating any damage or loss, which has already been allowed as deduction
under the Act
(3) Disaster means catastrophe, mishap, calamity or a grave occurrence in any
area, arising from natural or manmade causes, or by accident or negligence. It
should have the effect of causing(i)
Substantial loss of the life or human suffering ;or
(ii)
Damage to, and destruction of , property; or
(iii) Damage to, or degradation of, environment.
It should be of such a nature or magnitude as to be beyond the coping capacity
of the community of the affected area.
The amount is includable as income in the computation of income for tax purposes.
However the amount received is to be shown as exempted income. Since entire amount
received is exempt for tax purposes, there is no tax deduction under any provisions of the
Act, i.e. from 192 to 194LA. Sec 10(17 A) of the Income Tax Act states that;
any payment made, whether in cash or in kind,(I) in pursuance of any award instituted in the public interest by the Central
Government or any State Government or instituted by any other body. and approved
by the Central Government in this behalf; or
(ii) as a reward by the Central Government or any State Government for such
purposes as may be approved by the Central Government in this behalf in the public
interest;
It is most humbly contended that exemptions can also be made under Section 10 (17
A) of the Income Tax Act if it is in the nature of an award for literary, scientific or artistic
work or attainment or for services for elevating the distress of poor, the weak and the ailing

17

or for proficiency in sports and games instituted by the Central Government and nor it is in
the nature of a reward for certain purposes which have to be approved by the Central
Government under the provisions of Clause (17B) in public interest.11
Furthermore according to Art 282 of the Constitution;
Expenditure defrayable by the Union or a State out of its revenues The Union or
a State may make any grants for any public purpose, notwithstanding that the purpose
is not one with respect to which Parliament or the Legislature of the State, as the case
may be, may make laws.
Moreover, there are millions of people who evade paying taxes, if the public does not get
affected by them why will they get affected by some welfare scheme that is adopted by the
government to for the betterment of the weaker sections and economically backward people.
It is most humbly contended that the Central Board of Direct Taxes is a statutory authority
functioning under the Central Board of Revenue Act, 1963. The officials of the Board in their
ex-officio capacity also function as a Division of the Ministry dealing with matters relating to
levy and collection of direct taxes.
The State proceeds by contending that CBDT has its commissioners of Income Tax who
deal with serious cases of Grievances wherever urgent attention is needed. The state has gone
through each and every process established by the procedure of law and has sought
permission from the CBDT before making the monetary value that they were providing to the
victim tax free so the petitioners cannot question us regarding this.
Moreover, it is most humbly contended that Govt. does not only collect money in the form
of taxes from the general public there is infact a flexible source of revenue. It collects money
via various other ways like duties, excise, fine and penalties, fees, borrowing funds etc.
11
S.N. Bhargava vs Assistant Commissioner Of Delhi on 24 October, 1994, 1995 52 ITD 49 Delhi.

18
3. WHETHER THE NEW SCHEME INTRODUCED BY THE GOVERNMENT IS

NECESSARY AND CONSTITUTIONAL?
It is most humbly submitted before the Honble High Court that the scheme
introduced by the State is of immense importance and necessity. The State has proceeded
with the scheme for alleviating the miseries regarding hearse service to beneficiaries for
carrying the corpse from hospital to their intended destination.
The scheme (Mahaprayan), launched would facilitate free transportation of bodies
from government hospitals to residence of the deceased. The mortuary vans will be parked at
all district headquarter hospitals and three medical college-cum-hospitals in the state.
Furthermore, as many as 40 vehicles will be procured to offer the promised services.
While 30 of them will be stationed at district headquarters hospitals, two each will be
deployed at three state government run medical college and hospitals, one each at Capital
Hospital of Bhubaneswar, IGH Rourkela, Cuttack Sishu Bhavan and Cuttack cancer
hospital.12
Notably, the government also has a running scheme named Harischandra Sahayata
Yojana that was launched in August 2013 for providing financial assistance to poor and
destitute for conducting the last rites of their family member and for cremation of unclaimed
dead bodies. This scheme provided financial assistance for cremation, while the current
scheme expressly provided for transportation of bodies.
The State further begs to contend that that the man forcibly took his child's body out
of the hospital, then again immediate action was ordered after the incident came to notice.
The Collector was instructed to enquire into the matter and submit a report. Furthermore the
father had not asked for any transport facility. The father of the child was also unable to show
any receipt, or documentation proving that he had in any way asked the hospital help before
leaving.
The Mahaprayana scheme will be run under the Red Cross and will help transport the
poor and dead from government hospitals to their homes free of cost.13 It is being made
available to 30 district headquarter hospitals and a handful of government medical colleges
across the state.
12
http://odishasuntimes.com/2016/08/25/odisha-cm-launches-mahaprayan-scheme/
http://m.economictimes.com/news/politics-and-nation/odisha-cm-naveen-patnaik-launches-mahaprayanscheme-for-hearse-service/articleshow/53861388.cms
13

19
3.1. NUMBER OF SUCCESSFUL SCHEMES.

It has been further claimed that there were Rogi Kalyan Samitis (Patient Welfare
Committees) across the State where help is always forthcoming for poor people like the
father of the deceased. Some NGOs like Badhte Kadam provide cheaper ambulance
services.
It is most humbly stated that, from the time a mother conceives to performing of last
rites, the state has schemes for every occasion. The objectives of these schemes get defeated
due to poor implementation.14 This latest scheme was launched keeping in view the success
of Harischandra Yojana, under which poor people get financial assistance for cremation.
3.2. CONSTITUTIONAL MANDATE.
It is humbly submitted that Article 38(2) in the Constitution Of India 1949 states the
following;
The State shall, in particular, strive to minimize the inequalities in income, and
endeavor to eliminate inequalities in status, facilities and opportunities, not only
amongst individuals but also amongst groups of people residing in different areas or
engaged in different vocations.
Hence it can be positively stated that affirmative action is taken in the form of some
remedial measure, in public interest, in the background of the constitutional aspirations as
enshrined in Article 38.15 Hence the State is only mobilizing its resources towards creation of
development facilities.
The State humbly pleads that Article 38 embodies the jurisprudential doctrine of
distributive justice. The Constitution permits and even directs the State to administer
distributive justice. The concept connotes inter alia, the removal of economic inequalities,
rectifying the injustice resulting from the dealing and transaction between unequal in
society.16 Hence this provision has been utilized to its maximum capacity as a weapon for
arming the community.
14
Statement made by Biswapriya Kanungo, human rights activist, who is taking up the issue of dignity of dead
bodies with the State Human Rights Commission.
http://m.thehindu.com/news/national/other-states/after-outrage-odisha-government-launches-scheme-totransport-bodies/article9032633.ece Deccan Herald logo, Thursday 3 November 2016, News Updated at 05:11
AM IST
15
State Of Himachal Pradesh & Anr vs Umed Ram Sharma & Ors on 11 February, 1986 Equivalent citations:
1986 AIR 847, 1986 SCR (1) 251
16
Central Inland Water Transport Corporation v Brojo Nath Ganguly (1986) 3 SCC 156. See also Lingappa
Pochanna Appelar v. State of Maharashtra (1985) 1 SCC 479.

20

Further, this clause has often been relied upon to sustain and demand social welfare
measures and to remind the State about the kind of society the constitution expected to
create.17 Inaugurating new schemes will do good because they are necessarily implemented.
Art 41 deals with undeserved want.18 Yet again the Government seems to interpret these
provisions for the welfare of the people.
Emphasizing the importance of Directive Principles of State Policy in Akhila
Bharatiya Soshit Karamcharai Sangh Vs. Union of India19 The directive principles cannot,
in the very nature of things be enforced in a court of law, but it does not mean that directive
principles are less important than fundamental rights or that they are not binding on various
organs of the state.
17
See e.g. Air India Statutory Corpn v. United Labour Union, (1977) 9 CC 377: AIR 1997 C 645.
Sukhnandan Thakur v. State of Bihar AIR 1957 Pat 617
19
1981 1 SCC 246..
18

21
4. WHETHER THERE HAS BEEN ANY VIOLATION OF ANY

CONSTITUTIONAL RIGHT?
It is most humbly submitted that there has been no violation of any Constitutional
right in the instant case. This legal action initiated before this Honble Court for the
enforcement of public interest because some legal rights were affected is ill-founded. It is
humbly submitted that the petitioner has found the PIL as a handy tool of harassment. This
rampant abuse of PIL through privately motivated interests in the disguise of the so-called
public interests by the petitioner should be condemned.
The Defendant begs to state an equally pertinent factor that it is so easy to be wise
after the event and to condemn as neglect that which was only a misfortune.20 It is true that
the state owed a duty by providing transport facilities of the hearse. All such facilities were
available but the Petitioner had not asked for help and did not disclose his miserable plight
before the concerned hospital authorities.
Hence the State is not in any breach of its duty which had led to any infringement of
his right. The hospital will be liable only when a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs 21, would feel that it as
a breach of duty.
To assume that the authorities have extraordinary, superhuman or capable of unusual
skills or possess beyond normal intelligence to know that a person is helpless without him
actually stating the same would be incorrect.
4.1. VEXATIOUS AND FRIVOLOUS LITIGATION.
It is most humbly submitted that the petition should not be inspired by malice or a
design to malign others or be actuated with the desire for propaganda. The motive of personal
vendetta political or otherwise should be looked upon with eminent disfavor before such writ
petition is entertained.22
This vexatious petition under the color of PIL brought before this Honorable Court by
the petitioner is only for vindicating personal grievance and oblique motive and deserve
rejection23. The writ should involve the genuine infringement of right and should not be
moved by any other extraneous consideration.24 In this case there has been no such
20
Observations of Lord Denning in Roe Vs. The Ministry of Health

Blyth v. Birmingham Waterworks Co. 1856 11 EX CH 781, 156 ER 1047
22
Krishna Kant Jaiswal v. Vice Chancellor, Banaras Hindu University, Varanasi, AIR 1984 All 350
23
Janta Dal v. H.. Choudhary. AIR 1993 C 892 at p. 918.
24
Anand v. H. D. Deve Goda AIR 1997 C 273
21

22

infringement of right. The Petitioner cannot make claim if their case suffer from mala fide
and frivolity.25 Then it will be a gross abuse of the process of the court.
The present plaint is obstructed or polluted by unscrupulous litigants by invoking writ
petition.26 Apart from any other consideration, the Court may dismiss a Petition which is
malicious and ill motivated as has been stated in the case of Kini v. Union of India27
4.2. TRIAL BY MEDIA.
In the present case, various articles in the print media and Whatsapp video had
appeared even during the pendency of the matter which again gave rise to unnecessary
controversies and apparently, had an effect of interfering with the administration of criminal
justice. Presumption of innocence of an accused is a legal presumption and should not be
destroyed at the very threshold through the process of media trial and that too when the
investigation is pending.28
It is contended that investigative journalism and publicity of pre-mature, half baked or
even presumptive facets of investigation either by the media itself29 or by circulation of video
only created apathy against the Government and helped in creating chaos in the name of
dispersal of information.
Moreover this kind of cheap and objectionable publicity makes the criminal justice
system not transparent but patchy and hazy. Right to information is wrongly interpreted and
mislead by the public in the instant case, because the society is bound to be influenced by the
manner the case is projected and ultimately affect the sanctity of peoples opinion regarding
the ruling Government.
The Respondent humbly submits that every effort should be made by the print and
electronic media to ensure that the distinction between trial by media and informative media
should always be maintained. Furthermore trial by media should be avoided particularly, at a
stage when the suspect is entitled to the constitutional protections. Invasion of his rights is
bound to be held as impermissible.
This case is a nefarious example which manifestly demonstrates how the trial and
justice by media can cause irreparable, irreversible and incalculable harm to the reputation of
25
A. G. Prayagi v. State of M.P. and Other AIR 1987 MP 25. Vinod Kumar Kanojia v. Union of India AIR
2011, Del. 73. President, Mahavidyalaya Sikha udhar ngharh Amity v. State of of Bihar and other.AIR 1995
Patna 7.
26
Ubhah kumar v State Of Bihar AIR 1991 C 420
27
AIR 1985 SC 893 (para 4)
28
Anukul Chandra Pradhan v. Union of India and Ors. MANU/SC/1258/1996: (1996) 6 SCC 354; Naveen
Jindal Vs. Zee Media Corporation Ltd. and Ors. MANU/DE/0662/2015
29
Deepti Anil Devasthali and Leena Anil Devastnali vs. State of Maharashtra 2009 111 Bom. LR 3981.

23

a person and shunning by the society. The Government is ostracized and humiliated without
trial. All this puts grave risk to due administration of justice.30
The Respondents contention is based on the fact that the electronic media was to give
a true and ungarbled report of the actual event as they occurred. 31 It is evident that now-adays trial-by-media has become highly aggressive32 and creating ill will against the
Government.
The State proceeds to contend that the situation is made by creating a sensation
amongst the public by highlighting and underscoring mere allegations on the front pages of
daily routine news.33 The Media has just been conducting parallel investigations and points
its finger at the State Government who may indeed be innocent. It tried to find fault even
before the investigation was completed and this only raises suspicions in the minds of the
public about the efficiency of the official investigation machinery.
While it is true that only a subset of interests may survive death, and even a smaller
subset receive legal protection, death does not necessarily cut off all interests, and
consequently, it does not end all legal rights. Recognition of posthumous legal rights gives
the dead significant moral standing within our legal system, as would be expected if
lawmakers are driven by a desire to treat the dead with dignity. However, the realization that
some interests survive death does not necessarily lead to the conclusion that all interests must
or should survive death.
4.3. RIGHTS OF THE DEAD
Rights of the dead are often discussed in a loose sense without carefully defining the
terms. The State contends that because the dead are incapable of making significant choices
and lack the ability to form interests, they cannot have the same right as living person.35 The
34
30
Kartongen Kemi Och Forvaltning AB & Ors. vs. State through CBI, MANU/DE/0167/2004 : 2004(72) DRJ
693.
31
A similar situation arose in the case of L.C. Jayakaran and Minor Jaison Vs. Thanthai Periyar Transport
Corporation Limited rep. by its Managing Director, St. Francis Matriculation School by its Founder Robin
Joseph, United India Insurance Co., Ltd. and S.M. Kamala. MANU/TN/0399/2010
32
In Re: M.V. Jayarajan MANU/KE/2293/2011
33
Swatanter Kumar vs The Indian Express Ltd. & Ors. on 16 January, 2014
34
Hohfeld wrote, the term rights tends to be used indiscriminately to cover what in a given case may be a
privilege, a power, or an immunity, rather than a right in the strictest sense; and this looseness of usage is
occasionally recognized by the authorities. WESLEY NEWCOMB HOHFELD, FUNDAMENTAL LEGAL
CONCEPTIONS AS APPLIED IN JUDICIAL REASONING AND OTHER LEGAL ESSAYS 36 (Walter
Wheeler Cook ed., 1919).
35
Interest Theorists define a right as something that protects a right-holders interests. For examples of how
Interest Theory intersects with the law, see JOEL FEINBERG, The Rights of Animals and Unborn Generations,
in RIGHTS, JUSTICE, AND THE BOUNDS OF LIBERTY: ESSAYS IN SOCIAL PHILOSOPHY 159, 16263 (1980) [hereinafter FEINBERG, Animals and Unborn Generations]; Kramer, supra note 2, at 30-31; and
Aaron-Andrew P. Bruhl, Note, Justice Unconceived: How Posterity Has Rights, 14 YALE J.L. & HUMAN.
393, 405-07 (2002).

24

State humbly seeks to rely on the doctrine of actio personalis moritur cum persona means a
personal action dies with the person.

25
5. WHETHER THE PETITIONER ARE ENTITLED TO ANY RELIEF FROM

THE PRESENT PETITION?
It is humbly submitted before the Honble High Court that the Petitioners are not
entitled to any form of relief as the aggrieved father has already been granted adequate
monetary help from the State. Moreover it is humbly pleaded that the State Government is
not guilty of any act which could cause harm to the father of the deceased child.
The State had made available provisions for free transport facilities which were not
availed by the father of the deceased child. Hence there has been no flagrant infringement of
any fundamental rights as alleged by the Petitioners. So the claim for any form of relief is ill
founded. Demand of relief must be practicable and if no right is contravened then it cannot be
claimed.
The State wishes to contend that the Constitution of India does not contain the express
provisions for grant of compensation for violation of fundamental right to life. It evolved the
right to compensation in case of established constitutional deprivation right to life36 which
has not taken place in the instant case. The duty of the State is to make positive efforts
towards creating facilities for the public which they have tended to dutifully.
It is humbly contended that reliance should be placed on the case of Nilabati Behera
v. State of Orissa37 where it has been stated that the award of monetary compensation for
contravention of fundamental rights guaranteed by the Constitution should be made, when
that is the only practicable mode of redress available for the contravention. It has been stated
in the case of Railway Board v. Chandrima Das38 which has been herein below quoted;
The power of the court to grant such remedial relief may include the power
to award compensation in appropriate cases. the Court also clarified that the
compensation would be given only in appropriate cases and not in every case.
The appropriate cases are those cases where the infringement of
fundamental right is gross and patent that is incontrovertible and ex facie glaring
and either such infringement should be on a large scale affecting the fundamental
right of a large number of persons or it should appear unjust or unduly harsh or
oppressive on account of their poverty or disability or socially or economically
36
D. K. Basu v. State of West Bengal 1997 1 SCC 416

AIR 1993 SC 1960
38
AIR 2000 SC 988
37

26

disadvantaged position to require the person affected by such infringement to initiate
and pursue action in civil courts.
It would not be correct to assume that every minor infraction of public duty by any
government servant would commend the court to grant compensation in a petition under
Article 226.39
In Veena Sethi v. State of Bihar40 also the Court observed that the question would
still remain to be considered whether the petitioners are entitled to compensation from the
State Government for the contravention of the right guaranteed under Article 21 of the
Constitution.
In the light of the views expressed by the Court in the above case it can be said that
the Court had shown its concern for the protection of right to life and liberty against the
lawlessness of the State but did not actually grant any compensation to the victims.
The Supreme Court had taken a different view in Jiwan Mal Kochar v. Union of
India by holding that the petitioner could not be granted the damages and compensation
under Article 32 of the Constitution when the writ petition was filed challenging certain
remarks made against him by the Supreme Court behind his back at the instance of
Respondents.
41
39
Para 9 of Rabindra Nath Ghosal v. College Of Calcutta (2002) 7 SCALE 137.

(1982) 2 SCC 583
41
(1984) 1 SCC 200
40

27
PRAYER FOR RELIEF
Wherefore, in the lights of facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed and implored before the Honble High Court, to adjudge and
declare that:
1. The scheme introducing free transport to and fro from Government Hospital be
declared valid.
2. That both the Petitions be dismissed.
The court may also be pleased to pass any other order, which this Honble Court may deem
fit in light of justice, equity and good conscience.
All of which is most humbly and respectfully submitted.
s/d Moot Counsel For Respondents

28

Biswaranjan Pattanayak Memorial Moot Court Competition Winning Memorials.

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BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

THE HONOURABLE HIGH COURT, ODISHA

Writ Petition Case No. ***/2016

In The Matter Of:

Save Odisha Organization v. The State of Odisha.

Sri Ram Kumar Rath v. State of Odisha

MEMORANDUM on behalf of RESPONDENTS

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

Table of Contents ....................................................................................................................... 2

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

All India Reporters

All England Law Report

Bombay Division Bench

Supreme Court Cases

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

BOOKS, COMMENTARIES AND DIGESTS

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

A. G. Prayagi v State of M.P. and other AIR 1987 MP.................21

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

THE RESPONDENTS HAVE THE HONOUR TO SUBMIT BEFORE THE HONBLE

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

WHETHER THE CASES ARE MAINTAINABLE AS LAID?

WHETHER TAX EXEMPTION GRANTED BY THE GOVERNMENT IS

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

WHETHER THERE HAS

WHETHER THE PETITIONERS ARE ENTITLED FOR ANY RELIEF

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

1. WHETHER THE CASES ARE MAINTAINABLE AS LAID?

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

Subhas Kumar v. State of Bihar, AIR 1991 SC 420

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

2. WHETHER TAX EXEMPTION GRANTED BY THE GOVERNMENT IS

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

3. WHETHER THE NEW SCHEME INTRODUCED BY THE GOVERNMENT IS

MEMORANDUM on behalf of RESPONDENTS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

3.1. NUMBER OF SUCCESSFUL SCHEMES.

MEMORANDUM on behalf of RESPONDENTS