1

Team Code- A9

INTRA MOOT COURT COMPETITION 2015

IN THE SUPREME COURT

SARAPOVA

EURASIA

CASE CONCERNING STATELESSNESS OF INHABITANTS OF ISHNIA

Swipe Away Statelessness, NGO, Eurasian Chapter

APPELLANT

V.

1. State of Ishnia represented by Mr. Beckor, Minister of Tourism, Eurasia

2. State of Eurasia represented by Mr. Taylor, Tourism Department Secretary
3. Mr. Kettle, General Manager, Kogala & Sons (Asian Region)

RESPONDENT

ON SUBMISSION TO THE SUPREME COURT OF EURASIA

MEMORIAL for the APPELLANT

Swipe Away Statelessness

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TABLE OF CONTENTS

PAGE.NO

1. INDEX OF AUTHORITIES………………………………………………………………1

2. STATEMENT OF JURISDICTION….…………………………………...........................3

3. STATEMENT OF FACTS………….…………………………………………………......4

4. ISSUES INVOLVED…………………………………………………………………...…7

5. SUMMARY OF ARGUMENTS.………………………………………............................8

6. BODY OF ARGUMENTS.…………………………………………………………..........9

7. PRAYER.……………..……………………………………………………………….…17

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INDEX OF AUTHORITIES

ACTS

1.Foreigners Act 1946

2.The Citizenship Act 1955
3.The Constitution of India, 1950
4.The Constitution of Jammu and Kashmir 1956
5.The Jammu and Kashmir Land Acquisition Act, 1934
6.The Jammu and Kashmir Requisition and Acquisition of Immovable Property Act 1952
7.
CASE LAWS

1. Bandana Mukti Morcha v. Union of India (1984) 3 SCC 161

2. D.S Nakara v. Union of India (1983) 1 SCC 305,344
3. Delhi Development Authority v. Skipper Construction & Anr, (1966) AIR 715 SCC (1)
272
4. Indian Council for Enviro-Legal Action v. Union of India & Others, Writ Petition No.
967 of 1989
5. M.C Mehta & Anr. Etc. v. Union of India & Ors 1987 AIR 965
6. Union of India & Ors v. Dhanwati Devi & Ors
7.
CONVENTION

1. International Convention on the Elimination of All Forms of Racial, New York, 7 March
1966, United Nations
BOOKS REFERRED

1. Upendra Baxi, Alice Jacob, Tarlok Singh, Reconstructing the Republic, Haranad
Publication Pvt. Ltd.
ONLINE SOURCES

1. Mohan Krishan Teng, Federal Jurisdiction, Kashmir Pandit Network, available at

www.ikashmir.net/article370/chapter5.html Last Visited on 20 Nov 2015
2. Brad K. Blitz, Statelessness, Protection and Equality, 9, Refugee Studies Centre, Vol. 3,
Sep 2009, available at http://www.rsc.ox.ac.uk/publications/statelessness-protection-and-
equality
3. Deepika Prakash Maanvi Tiku, India and the challenges of Statelessness: A review of the
legal framework relating to nationality, available at
http://www.nludelhi.ac.in/download/publication/2015/India%20and%20the%20Challeng
es%20of%20Statelessness.pdf

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4. Fayaz Wani, Citizen of India but stateless in Kashmir, The Sunday Standard, 2 Nov, 2014,
http://www.newindianexpress.com/thesundaystandard/Citizens-of-India-But-Stateless-in-
Kashmir/2014/11/02/article2503456.ece

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STATEMENT OF JURISDICTION

CASE CONCERNING THE STATELENESS OF INHABITANTS OF ISHNIA

Swipe Away Statelessness, NGO …. Appellant

V.

State of Ishnia represented by Mr. Beckor, Minister of Tourism, Eurasia

State of Eurasia represented by Mr. Taylor, Tourism Department Secretary
Mr. Kettle, General Manager, Kogla & Sons (Asian Region) …. Respondent

“The matter is before Supreme Court as a PIL filed by written letter by Swipe Away Statelessness
(NGO) under Article 32 of the Indian Constitution.
Since Eurasia and its legal framework is pari materia to India and its legal framework therefore
the India will be referred as Eurasia and Indian laws would be applicable in regard to Union of
Eurasia. Ishnia is given a special status by the Constitution of Eurasia, it would be treated as
Jammu and Kashmir since it is the only such state that has been given a special status under Art
370 of the Indian Constitution.”

IN THE SUPREME COURT

EURASIA

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STATEMENT OF FACTS

1. That Eurasia is a multi-cultural and multi-lingual country which has a history of foreign
invaders who have conquered various portions of the country and have influenced the lives
of the Eurasians. It has led to the participation and adoption of various religions and beliefs
amongst the Eurasians and to name a few Hinduism, Islam, Jainism, and Sikhism are the
most popular religions followed by the Eurasians.
2. That a foreign nation, Hingistan came as traders in Eurasia and became the rulers of the
country for almost a century.
3. That Ishnia was one such princely state where the predominant religion followed was
Islam though there were certain existing population who are Hindus, Sikhs and Jains, but
were negligible in comparison to the former ones.
4. That when Eurasia received independence, Ishnia was being ruled by a Hindu Raja who
agreed to accede to Eurasia but not want to be a part of it in the matter of administration.
In this regard he signed a bilateral treaty with Eurasian government whereby it was stated
that Ishnia join Eurasia as a member state only if its entire people agreed to such a
proposal.
5. Ishnia failed to carry out plebiscite according to the treaty. Even though it was decided as
early as in 1948 but due to communal tension, war with the neighboring nation, etc. it
could not be carried out.
6. That in 1950 when Eurasia adopted its Constitution after an elaborate debate it was
decided to have a separate provision for Ishnia in the Constitution of Eurasia.
7. That in 2010 to curb the issue of political unrest at Ishnia the Union Government of
Eurasia decided to hold a plebiscite to curb growing demand of independence.
8. That a survey to calculate the number of eligible voters. After the survey it was revealed
that almost 20% of the total population were not eligible to give their votes due to absence
of proper document even after residing in Ishnia for some decades.
9. That on January 21, 2011 for one week the details of the persons were registered under
three distinct heads: personal, property and others details. For the third head they sought
clarifications on the manner in which they came to Ishnia and attach proof to substantiate
their claim.
10. That the second step whereby they declared the list of the candidates who are eligible to
participate in the plebiscite being a part of Ishnia. 30% of the total applicants were
dismissed on the ground that they could not produce valid documents to prove as to how
they came to reside in Ishnia or even Eurasia as a result of which they were declared as
non-nationals of Eurasia.

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11. The Government was unable to conduct the plebiscite due to wide spread protest across
the state of Ishnia which soon turned into communal dispute.
12. The protesters argued that the state was trying to communalize the issue by granting status
to Hindus and not the Muslims which will affect the plebiscite.
13. That in May 2013, the state government to promote trade and commerce invited
companies to invest in the tourism sector of Ishnia.
14. Kogala & Sons, a multinational company based in Chillinia expressed that they are
interested in setting up chain of hotels in India, and therefore require a memorandum of
understanding.
15. A tripartite agreement was signed between the Minister of Tourism Mr. Beckor, the state
of Ishnia was represented by its Tourism Department Secretary Mr. Taylor and Mr. Kettle,
the General Manager (Asian Region) Kogala & Sons.
16. That on 20 August 2013, a concession agreement was signed whereby in case the
concessionary fails to complete the project within the prescribed time period, the
ownership rights of the project will vest with the Government.
17. That the Government of Ishnia set to acquire land specially from the people who had not
been cleared by the Government of Eurasia as residents of either Eurasia or Ishnia.
18. That the Government of Ishnia justifies this act on the grounds of public good and holistic
development. They announced compensation for the land and assured that priority will be
given to the inhabitants in terms of job opportunities.
19. That the land was forcibly taken, without any compensation, from the stateless population
which caused discontent amongst the people and they started demonstrating against the
acquisitions. The Government of Ishnia justified their actions by stating that the land was
kept in possession of those who did not have proper documents, such piece of lands and
were neither the citizens of the Eurasia nor the residents of Ishnia according to legal terms,
resultantly, they did not have any right to acquire or hold any property in Ishnia and hence
there is no wrong in the acquisition action taken up by the government.
20. Swipe Away Statelessness, an NGO came to know about the problem and decide to file
an RTI claiming information on status and records of stateless, reasons for statelessness
and feedback about the survey.
21. That in October 2013, a writ petition was filed by the NGO for violation of environmental
standards. A committee was set up by the Union Government.
22. That on 24 January 2015, the committee set up gave it report and that the company owned
large funds in various countries.
23. That an investor based agency filed a complaint to SECE stating for the funds used to
finance the project in Eurasia is the profits of the company upon which they have not paid
any tax in the other states and was trying to siphon the amount in this way. The SECE
issued a show cause notice.

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24. Kogla & Sons filed a suit in High Court on grounds that there was no Locus Standi. The
Government also repudiated the concession on grounds of non-performance and providing
completion date as two years from date of agreement (Clause 13 & Clause 2).
25. Kogla & Sons filed a suit as being violative of force majeure clause of the concession
agreement.
26. That on the request of the NGO through a letter, the Apex Court summoned representation
from the Government of Eurasia and Kogala & Sons and asked them to show cause as to
why action should not be initiated against them.
27. That the Apex Court after hearing the response and considering other matters in High
Court they decided to take up the matter for hearing before itself & asked parties to file
respective petitions due consideration of cost.

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ISSUES INVOLVED

1. Whether the suit is maintainable under the jurisdiction of Supreme Court of Eurasia?
2. Whether the Government of Ishnia is exploiting the stateless nature of inhabitants?
3. Whether the Government is prioritizing the interest of the company over public interest?

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SUMMARY OF ARGUMENTS

1. THAT THE SUIT IS MAINTAINABLE UNDER JURISDICTION OF SUPREME

COURT OF EURASIA

The supreme Court of Eurasia has right to hear the present case as it was a PIL filed on behalf of
the people of Ishnia whose lands have been acquired. The Supreme Court has decided to take up
the matter after considering the case pending before High Court. Such power has been conferred
to the Supreme Court by Art 139 A. The Supreme Court has right to hear cases as PIL which
have been filed for the protection of the environment. In the present case the company is accused
of violating environmental standards. Everybody within the territory of India has been conferred
the right to life and livelihood under Art 21 of the Indian Constitution and which cannot be taken
away in any circumstances. After considering all the circumstances it can be said that the
Supreme Court has right to hear the present case.

2. THAT GOVERNMENT OF ISHNIA ARE EXPLOITING THE STATELESS NATURE

OF INHABITANTS.

The Government of Ishnia over the past 67 years from attaining the special status has not been
able to hold a plebiscite and therefore has not been able to decide the status of its inhabitants. In
Eurasia there is a lack of laws in regards to statelessness and the state government is taking
advantage of the situation. There is an absence of proper identification process due to which the
basic rights of inhabitants of Ishnia. By laws of citizenship of Eurasia, the inhabitants of Ishnia are
citizens, but they are not considered inhabitants of Ishnia.

3. THAT GOVERNMENT OF ISHNIA IS PRIORITIZING INTEREST OF THE

COMPANY ABOVE THE PUBLIC INTEREST.

The government is making use of the political turmoil and is able to maintain and promote their
interest over public interest. They have violated the directive principles of state. By the agreement
they have helped Kogla & Sons to acquire land forcefully hence targeting the stateless citizens.
They have not declared their intention to acquisition and according to law the method of giving
compensation is incorrect.

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BODY OF ARGUMENTS

1. THAT THE SUIT IS MAINTAINABLE UNDER JURISDICTION OF SUPREME

COURT OF EURASIA
The State of Ishnia is between a political turmoil due to its history. Due to this turmoil some
inhabitants living in Ishnia from 1948 are denied the right of citizen and hence they cannot be a
part of the plebiscite. The state has time and again failed to carry out the plebiscite1 in 67 years.
The circumstances in Ishnia has taken away the basic rights of people residing in Ishnia and the
government has failed to find a solution for that matter. The Government of Ishnia on the other
hand have used this situation to their advantage by forcibly taking away and targeting the land of
the stateless.
1.1 THAT SUPREME COURT HAS JURISDICTION TO WITHDRAW CASE PENDING
BEFORE HIGH COURT.
1.1.1 The Supreme Court of Eurasia have powers to withdraw any case/cases pending in high court
and dispose of the case itself2. On the report submitted by the three person committee set up by
the government of Eurasia stated that “funds used by the company were largely foreign funds from
the various businesses that the company were owning in various other countries”3. On a complaint
made to SECE, one of regulatory bodies of Eurasia, the SECE issued a show cause notice as the
company’s profit used in Eurasia were the profits of companies in other state where they had not
paid any tax and were trying to siphon the money out. To which Kogala & Sons challenged the
notice on grounds of absence of Locus Standi. In return the Government also decided to repudiate
the concession agreement which was challenged by Kogala & Sons being violative of force
majeure.4
1.1.2 In the above mentioned circumstance the matter related to siphoning the money to avoid tax
was pending before the High Court. The matter was further delayed as the Government decided to
repudiate certain clauses of the agreement. Hence under Article 139 A, Constitution of India, 1950
the Supreme Court, if it is satisfied on its own motion it can withdraw the case pending before the
High Court.
1.1.3 In similar circumstances, the Supreme Court directed transfer of all cases regarding different
properties concerning the Skipper Construction Company to itself. It was directed that no court or

1
¶ 5, Factsheet
2
Article 139 A, Constitution of India 1950
3
¶10, Factsheet
4
¶ 11, Factsheet

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authority shall be competent to interdict or otherwise interfere with the disciplinary or other
proceedings that may be taken against the aforesaid authorities pursuant to the order.5

1.1.4 Therefore the Supreme Court can transfer cases involving the same or substantially the same
question of law which are pending before the court and that such questions are of general
importance. Therefore, due to the circumstance in Ishnia in regard to communal tension and to
protect the interest of investors, the Supreme Court of Eurasia have the jurisdiction to take up the
case.

1.2 THAT THE NGO CAN FILE A WRIT PETITION IN VIOLATION OF

ENVIRONMNTAL STANDARDS

1.2.1 The NGO being representative of the inhabitants of Ishnia, filed a writ petition against the
company for having violated the environmental standards by disturbing the ecological balance
while constructing their chain of hotels and forest resorts without due approval. The NGO was
authorized to file a writ petition for violation of Article 21, Protection of Life and Personal Liberty.

1.2.2 “An environmentalist organization brought to light the sufferings and woes of people living
in the vicinity of chemical industrial plants in India. It was demonstrated how the conditions of a
peaceful, nice and small village of Rajasthan were dramatically changed after the respondent
started producing certain chemicals like Oleum (concentrated form of sulphuric acid) and Single
Super Phosphate”6

1.2.3 The High Court of Ishnia is vested with the power to issue writs of mandamus, prohibition,
quo warranto and certiorari, or any of them, for the enforcement of any of the fundamental rights.7

1.2.4 The right to a clean and pollution free environment comes under the Article 21 8, Right to
Life “The right to live is a fundamental right under Article 21 of the Constitution, and it includes
the right of enjoyment of pollution-free water and air for full enjoyment of life. If anything
endangers or impairs that quality of life in derogation of laws, a citizen has the right to have
recourse to Article 32 of the Constitution…” As held in the famous M.C Mehta & Anr. Etc. v.
Union of India & Ors9. Therefore a writ can be filed on behalf of the NGO against the company
for violation of Article 21.

1.3 THAT SUPREME COURT HAS JURISDICTION TO ACCEPT LETTER FILED BY

THE NGO.

5
Delhi Development Authority v. Skipper Construction & Anr, (1966) AIR 715 SCC (1) 272
6
Indian Council for Enviro-Legal Action v. Union of India & Others, Writ Petition No. 967 of 1989.
7
Mohan Krishan Teng, Federal Jurisdiction, Kashmir Pandit Network, www.ikashmir.net/article370/chapter5.html
Last Visited on 20 Nov 2015.
8
Article 21, Constitution of India 1950
9
1987 AIR 965

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1.3.1 The NGO working for protection of stateless population across the globe 10 filed a RTI
petition and a writ petition against the company having violated environmental standard by
disturbing the ecological balance while constructing the chain of hotels and forest resorts without
due approval.11 The lack of response of the RTI and the influence of Government of Eurasia by
setting up the committee by Union Government for investigation the writ, compelled the NGO to
write an application to the Supreme Court of Eurasia and after hearing the respondents the court
decided to take up the matter. Hence the NGO was correct in filing a Public Interest Litigation on
behalf of the inhabitants of Ishnia, whose status was not cleared by the state government and who
were targeted by forceful acquisition of land.

1.3.2 The Supreme Court has jurisdiction over the state, most of the important fundamental rights
have been extended to the state.12The right to life and personal liberty, embodied in Article 21 is
applicable to the state without exception.13 In the State, the right to property is still a fundamental
right; hence, deprivation of the property without payment of solatium and interest violates an
individual's fundamental right to property and, therefore, it would be arbitrary offending Article
14 of the Constitution.14

1.3.3 Article 3215 guarantees remedies for enforcement of rights, as right to property is still a
fundamental right in Ishnia, the violation of this right can be challenged by way of PIL. “Even a
letter can be treated as a Writ Petition if in the nature of Public Interest Litigation… when letter is
addressed by an aggrieved person or by a public spirited individual or a social action group for
enforcement of the constitutional rights of a person who by reason of poverty, disability or socially
or economically disadvantaged position find it difficult to approach the court would be justified,
nay bound, to treat the letter as a writ petition”16. Therefore the inhabitants of Ishnia who are
termed as ‘stateless’ being socially disadvantage are being represented by the non-governmental
organization and the court is bound to treat the letter written by the NGO.

1.3.4 “Registered society, a non-political, non-profit making and voluntary organization,

espousing cause of old infirm pensioners, has locus standi. Any member of the public having
sufficient interest can maintain an action for judicial redress for public injury arising from breach
of public duty or from violation of some provision of the Constitution or the law and seek
enforcement of such public duty and observance of such constitutional or legal provisions.”17

10
¶ 8, Factsheet.
11
¶ 9, Factsheet.
12
Upendra Baxi, Alice Jacob, Tarlok Singh, Reconstructing the Republic, Haranad Publication Pvt. Ltd.
13
Mohan Krishan Teng, Federal Jurisdiction, Kashmir Pandit Network, www.ikashmir.net/article370/chapter5.html
Last Visited on 20 Nov 2015.Union of India & Ors vs. Dhanwati Devi & Ors, available at
www.judis.nic.in/supremecourt/imgs1.aspx?filename=15251
14
Union of India & Ors vs. Dhanwati Devi & Ors, available at
www.judis.nic.in/supremecourt/imgs1.aspx?filename=15251
15
Article 32, Constitution of India 1950
16
Bandana Mukti Morcha v. Union of India (1984) 3 SCC 161
17
D.S Nakara v. Union of India (1983) 1 SCC 305,344

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Therefore, non-governmental organization being the unaffected third party can file a Public
Interest Litigation by way of a letter.

1.3.5 Therefore, considering the multiplicity of cases and the nature of the case, the Supreme Court
of Eurasia has the jurisdiction to take up the case based on the abovementioned factors and the
NGO can represent the inhabitants of Ishnia.

2. THAT GOVERNMENT OF ISHNIA ARE EXPLOITING THE STATELESS NATURE

OF INHABITANTS.

The nation of Eurasia had a history of various foreign invaders due to which there has been
participation and adoption of various religions within the country.18 Ishnia, being a princely state,
was ruled by a Hindu raja but the majority of the population followed Islam.19 A bilateral treaty
was signed by the Raja and it was decided that Ishnia join Eurasia as a member of state on if its
people agreed. The consensus was decided to be carried out by the plebiscite. In 1948, the
government attempted to conduct the plebiscite but failed due to communal tension with the
neighboring company. Accordingly, Ishnia was given a special status when Eurasia adopted its
constitution in 1950.20 The state government since 1948 did not attempt to conduct the plebiscite
till 2010, which too was effect of political unrest. Therefore the state government whilst enjoying
the special recognition ignored the need to clarify the status of people residing in Ishnia. In 2010,
the survey revealed that 20% of the population were not eligible for voting as they did not have
any proper documentation. The conduct of state government points towards serving interest of
particular section and violating the basic rights of inhabitants of Ishnia.

2.1 IDENTIFICATION OF STATELESS PEOPLE

2.1.1 Eurasia being one of the member of United Nations and a supporter of basic Human Rights,
that they have not signed any of the Convention 1954 related to status of stateless persons. There
is a dire need for a framework to help identify and subsequently decide the status of stateless
inhabitants.

2.1.2 According to Professor Brad K. Blitz’s Research on Statelessness, “denial or deprivation of

citizenship may include introduction of discriminatory laws that target specific communities, the
carrying out of a census of selected populations, or the introduction of onerous provisions that
make it virtually impossible for certain groups and individuals to access their rights to citizenship,
including establishing a legal identity by means of formal registration of births, marriages, and
voting.”21 Therefore, the various attempts made by the government to eradicate statelessness are
actually the source of statelessness. In Eurasia there are lack of opportunities to register births and

18
¶ 1 Factsheet.
19
¶ 2 Factsheet
20
Id.
21
Brad K. Blitz, Statelessness, Protection and Equality, 9, Refugee Studies Centre, Vol. 3, Sep 2009.

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marriages, the use of high fee for documents and requirement of witness to certify documents are
the various sources due to which inhabitants of Ishnia have not been able to attain citizenship.22

2.1.3 According to Section 2(3), Foreigner’s Act23 a foreigner is, “A person who is not a citizen of
India”. In a report submitted to UNHCR, “The report finds this definition to not be clear about
inclusion of stateless persons within it. A person who may be in possession of nationality of
another nation but is present in India is as much a foreigner under this definition as is a person
with no proof of identity on him to prove his nationality”24 Therefore the provision is silent in case
nationality is not proved.

2.2 CITIZENSHIP IN EURASIA

2.1.1 The International Convention on the Elimination of All Forms of Racial Discrimination
adopted by the General Assembly of the United Nations on 21 December 1965 was signed by 88
countries, Eurasia was one of the signatories and had ratified the convention on 3 December 1968.
According to convention’s Article 5(d) (iii) “States Parties undertake to prohibit and to eliminate
racial discrimination in all its forms and to guarantee the right of everyone, without distinction as
to race, color, or national or ethnic origin, to equality before the law, notably in the enjoyment of
the right to nationality”25. Therefore Eurasia after ratification should be responsible for making
laws to clarify nationality of inhabitants.

2.1.2 The laws of the Constitution of Eurasia applies to the state of Ishnia without any exception
in matters related to citizenship. Article 526 defines the citizens as the persons, who at the time of
the commencement of the Constitution, had their domicile in the country, provided they were
either born in the country, or either of their parents were born in or were residents of the country
for not less than five years immediately before the commencement of the Constitution.27

2.1.3 The Citizenship Act28 provides for registration as citizens, to such persons who are not
citizens by any other provision of this Act or the Constitution, including a minor, a spouse of a
citizen of the country, and a person general.29

22
Brad K. Blitz, Statelessness, Protection and Equality, 16, Refugee Studies Centre, Vol. 3, Sep 2009.
23
Section 2(3) Foreigners Act 1946
24
Deepika Prakash Maanvi Tiku, India and the challenges of Statelessness: A review of the legal framework relating
to nationality.
25
International Convention on the Elimination of All Forms of Racial, New York, 7 March 1966, United Nations
Treaty Series, Vol 660, p 195. Available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx
26
Article 5, The Constitution of India, 1950
27
Article 5, The Constitution of India, 1950
28
The Citizenship Act 1955
29
Deepika Prakash Maanvi Tiku, India and the challenges of Statelessness: A review of the legal framework relating
to nationality.

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2.1.4 Section 5, Citizenship Act, 1955(b) “a person of the country’s origin who is ordinarily
resident in any country or place outside the undivided country” can be considered as a Citizen of
Eurasia. Therefore according to these provisions inhabitants should be given citizenship.

2.3 CITIZEN OF EURASIA, BUT NOT ISHNIA

2.3.1 There are several instances where people of Ishnia have been denied their basic rights
because they do not possess necessary documents. One such similar instance is “83-year-old Mela
Ram Baghat enthusiastically exercised his right to vote at one of the polling booths in Jammu like
he has been doing in all previous Lok Sabha elections as citizen. But in the coming Assembly
elections to be held from November 25 for the 87-member J&K Legislature, he cannot vote. He is
prevented by state law since the first elections happened in 1951, because he is considered
stateless.30

2.3.2 Technically people residing in Ishnia should have acquired citizenship but the state itself
does not want to clarify the status of inhabitants and further want to exploit them and deprive them
of their basic rights.

3. THAT GOVERNMENT OF ISHNIA IS PRIORITIZING INTEREST OF THE

COMPANY ABOVE THE PUBLIC INTEREST.

The Government of Ishnia signed a Memorandum of Understanding with the state government
which stated that the state government will provide as a guarantor and provide necessary approvals.
The company in turn set a special purpose vehicle in which the government has 40% stake. For
Kogala & Sons the government started forcefully acquiring land targeting especially the people
whose status was still not clear.31

3.1 PRIVATE INTREST OVER PUBLIC INTEREST

3.1.1 As according to the argument in the second issue the stateless people have the right to enjoy
their property and the work of government is to protect the interest of its people in this case the
government is deviating from its object and completely ignoring the interest of its people and
signing an agreement that will not only take away their land but would also promote the personal
interests of the company and government.

3.1.2 According to Section 1332 under Part IV, Directive Principle of State Policy, “The prime
object of the State consistent with the ideals and objectives of the freedom movement envisaged
shall be the promotion of the welfare of the mass of the people by establishing and preserving a
socialist order of society wherein all exploitation of man has been abolished and wherein justice-

30
Fayaz Wani, Citizen of India but stateless in Kashmir, The Sunday Standard, 2 Nov, 2014,
http://www.newindianexpress.com/thesundaystandard/Citizens-of-India-But-Stateless-in-
Kashmir/2014/11/02/article2503456.ece
31
¶ 7 & 8 Factsheet
32
Section 13, The Constitution of Jammu and Kashmir 1956

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social, economic and political-shall inform all the institutions of national life” Therefore, it is the
duty of the government to protect the rights and at no circumstance exploit the people, whereas in
this case it had been exploiting inhabitants and prioritizing private interest over public interest
thereby violating the abovementioned provision.

3.1.2 The government here is forming a subsidiary company i.e. a special purpose vehicle with the
co. in which it has a stake which means that they are preparing a backup plan that in case the parent
company goes bankrupt they are still in a beneficial position. Forming of a special purpose vehicle
is in no way connected to the personal good of the people as it only secures the position of the
government and the company.

3.1.3 The issue of domicile of stateless people was kept on hold by the government due to
communal riots and even later on after filing of an RTI petition no response was given from the
side of government on the statelessness of the people.

3.1.4 The three member committee was formed under government influence because its members
was appointed by the government and the government under clause 3 of the agreement had agreed
to provide all necessary sanctions that was needed to run the company and since the government
had a stake in the company it had to give a clean chit to the company.

3.2 THAT THE STATE OF ISHNIA FAILED TO PROVIDE DECLARATION OF

INTENDED ACQUISITION.

3.2.1 When the Government is satisfied that any particular land is needed for public purpose, a
declaration shall be made to that effect under the signature of the Revenue Minister or of some
officer duly authorized on his behalf.33 Therefore the Government failed to make any such
declarations. The communal war started for the very reason that the government failed to specify
which land were to be acquired and further targeted the homeless by forceful acquisition.

3.2.1 The Collector shall cause public notice to be given at convenient places on or near the land
to be taken, stating that the government intends to take possession of the land.34 Also when the
government is of the opinion that any property is needed or likely to be needed for any public
purpose, being the purpose of the state, it may by an order notify that the property should be
requisitioned provided that no property which is bonafide used by the owner thereof as the
residence of himself or his family.35 In the facts, the Government of Ishnia on purpose took
residential land of the stateless inhabitants which is against the abovementioned provisions.

3.3 INADEQUATE COMPENSATION

33
Section 6, The Jammu and Kashmir Land Acquisition Act, 1934
34
Section 9, The Jammu and Kashmir Land Acquisition Act, 1934
35
Section 3(1) (a), Requisition and Acquisition of Immovable Property Act 1952

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3.1.5 The compensation provided by the government is not adequate because the valuation of
property done by them is not correct. The value of property goes on increasing many folds in future
so the value assessed here is not correct. According to Sec 2936 market value of the land should
not form a part of compensation. Whereas in the present case the market value has been a part of
compensation.

36
Section 29, The Jammu and Kashmir Land Acquisition Act, 1934

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PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is humbly
requested that this Honorable Court may be pleased to adjudge and declare:

1. That the tripartite agreement should be declared as void as the government had no authority
to acquire the land.
2. Direct the Eurasia and Ishnia government to return the land acquired by it.
3. Direct government to make statutory provisions for protecting the interest of people who
are not able to proof their domicile or nationality.
4. Direct the respondents to pay compensation and legal expenses to the appellant and the
people that were made stateless.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

COUNCIL FOR APPELENT

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