GUJARAT NATIONAL LAW UNIVERSITY INTRA-MOOT COURT COMPETITION

In the Honble Supreme Court of India

STATE OF MAHARASHTRA (APPELLANT)

V.

TEXTILES TRADE PROMOTION COUNCIL (RESPONDENT)

WRITTEN SUBMISSION ON BEHALF OF RESPONDENT (R-24)

Case no....... of 2014

TABLE OF CONTENTS 1. Index of Authorities...3 2. Table of Cases...4 3. List of Abbreviations and Statutes Referred.5 4. Statement of Jurisdiction...6 5. Statement of Facts.7 6. Issues Raised..8 7. Summary of Arguments.........9 8. Arguments Advanced..11 9. Prayer...

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INDEX OF AUTHORITIES

BOOKS REFERRED

Basu DD, Commentary on the Constitution of India Volume 5 (2008), 8th Edition, Lexis Nexis, Butterworths Wadhwa, Nagpur Basu DD, Commentary on the Constitution of India Volume 6 (2008), 8th Edition, Lexis Nexis, Butterworths Wadhwa, Nagpur Basu DD, Commentary on the Constitution of India Volume 7 (2008), 8th Edition, Lexis Nexis, Butterworths Wadhwa, Nagpur Shukla VN, Constitution of India (2103), 12th Edition, Eastern Books Company, Lucknow

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TABLE OF CASES Pritam Singh vs. State- AIR 1950 SC 169 Kapildeo Singh vs. State Emperor- AIR 1950 FC 80 Bihar Legal Support Society vs. Chief Justice of India- AIR 1987 SC38 Dhakeswari Cotton Mills vs. CIT-(1954) 26 ITR 775 (SC) Dunlop India Ltd. vs. Union of India-1977 AIR 597 Shaw Wallace vs. Workmen- AIR 1978 SC 977 State of Orissa vs. Bina Pani Devi-[1967] 2 S.C.R. 625. A.K. Kraipak vs. Union of India-[1970] 1 S.C.R. 457 Koshy George v. The University of Kerala-[1969] 1 S.C.R. 317, Sumer Chand Jain v. Union of India Indian National Congress v. Institute of Social Welfare- AIR 2002 SC 2158 Cooper vs. Wilson-(1937) 2 KB 309 Queen vs. Dublin Corporation-(1878) 2 Ir. R. 371 Rex vs. Electricity Commissioners-(1924) 1 KB 17 Schmidt v. Secretary of State for Home Affairs-[1968] 112 AC 690 Maneka Gandhi v. Union of India-(1978)1 SCC 248
Bar Council of India vs. High Court Kerala-(2004) 6 SCC 311

Calico Mills Ltd. v. State of Madhya Pradesh- AIR 1961 MP 257 Geeta enterprises v. State of Uttar Pradesh and Ors- AIR1983SC1098
BSNL v. Union of India- AIR 2006 SC 1383 Federation of Hotel & Restaurant Association of India Vs. Union of India -1989 178 ITR

97(SC) Larsen & Toubro Vs. Union of India- (1993) 1 SCC 365 Godfrey Phillips (I) Ltd.& Anr. vs. State of U.P.& Ors.- 2005 AIR 1103, 2005 (1) SCR 732

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STATUTES REFFERED Bombay Entertainment Duty Act, 1923

LIST OF ABBREVIATIONS 1. &.....................................................................................and 2. AIR......................................................All India Reporter 3. Art. .......................................................................Article 4. Corp...............................................................Corporation 5. Honble ...........................................................honorable 6. J.............................................................................Justice 7. Ltd. ......................................................................Limited 8. Para. .................................................................paragraph 9. Pvt.........................................................................................................................Private 10. Pg. ............................................................................Page 11. Rs..........................................................................Rupees 12. s ............................................................................section 13. SC.............................................................Supreme Court 14. SCC................................................Supreme Court Cases 15. Supp.........................................................Supplementary 16. v. ...........................................................................Versus

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STATEMENT OF JURISDICTION The State of Maharashtra has approached The Honble Supreme Court of India under Article 136 1 of the Constitution of India by filing a Special Leave Petition. The Respondent submit the Jurisdiction of the Honble Court.

Article 136 in The Constitution Of India 1949, Special leave to appeal by the Supreme Court (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India (2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

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STATEMENT OF FACTS

Textiles Trade Promotion Council (Respondent) is a company incorporated under Section 25 of the Companies Act, 1956 i.e Companies established with no profit motive.

Company organizes annual exhibitions titled the International Apparel show which provides a platform for interaction between all traders. The organizers charge high entry fee in order to encourage only serious business visitors to attend the shows. The exhibition generates lot of revenue to the state and nomial income is earned by the organizers.

The Company paid lot of entertainment duty to the Appellant under protest since an No objection certificate was not issued until the duty was paid to the Collector. IAS 2014 was approaching, the respondent wanted to ensure no last minute problem and applied for the NOC and made it clear to the State that no Duty was payable, but the Police authorities instituted on the NOC from the Collector. Since the exhibition was fast approaching the respondent paid the duty again on protest.

Through a letter, the Respondent made an application to the Additional collector to refund the earlier deposits since it was paid under protest as the said act was not applicable on the exhibition.

The Additional Collector without hearing the Company passed an order which directed the Company to pay the due of the exhibition which happened in 2013 and was given 7 days to comply with the orders otherwise necessary step would be taken to ensure the payment.

The Respondent approached the High Court against the said order where the High Court gave an order in the favour of the respondent Hence the State has approached this Honble Court

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ISSUES RAISED

1. Special Leave Petition under article 136 is not maintainble in the Supreme Court of Indi this case 2. Was the Assistant Collector under an obligation to give a hearing to the Company. If, yes, whether such denial of such opportunity goes to the root of the matter and vitiates the proceedings? 3. Does the Trade exhibition organised by the Respondent falls under the definition of the Entertainment as defined under the Act and is the Company liable to payable to duty of such exhibition?

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SUMMARY OF ARGUMENTS

Issue No 1: Special Leave Petition under article 136 is not maintainable in the Supreme Court of India this case It is the humble submission of the Respondents before this Honble Court that the present petition seeking Special Leave under Article 136 is not maintainable. The Supreme Court made it abundantly clear that it can only exercise this wide discretionary power sparingly and in exceptional cases. If any mistake of law is brought to the notice of the Court or it finds that there has been a grave miscarriage of justice, the Court can exercise this wide discretionary power that has been granted to adjudicate and decide upon the matter. The Respondents contend that the dispute was satisfactorily decided upon by the High Court and that there are no grounds on which the petition of the Petitioners can be maintained

Issue No 2: Was the Assistant Collector under an obligation to give a hearing to the Company. If, yes, whether such denial of such opportunity goes to the root of the matter and vitiates the proceedings? The Respondent submits to the Honble Court that the Assessing office under the Bombay Entertainment Duty Act, 1923, has not followed the due process of the law. The Assessing officer has failed to give notice to the respondent and proceed on the merits of the case. It is rudimentary principle of law that the every person should be heard before being condemned or punished , which has not followed in this particular case. The Respondent are denied an opportunity of being heard by the statutory authority which is the mandatory obligation of the Collector under Section 4B of the 1923 act. The act of the collector in this particular case goes against various precedents of the this Honble Court. The respondent submits that Collector being mandated under the act for collection of entertainment duty has failed in the primary obligation of issuing notice to the Respondent, which goes to the root of this matter.

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Issue No 3: Does the Trade exhibition organised by the Respondent falls under the definition of the Entertainment as defined under the Act and is the Company liable to payable to duty of such exhibition.

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ARGUMENTS ADVANCED

Issue No1. Special Leave Petition under article 136 is not admissible in the Supreme Court of Indi this case. It is the humble submission of the respondents before the Honble Supreme Court is that the present SLP under Art. 136 of the Constitution is not admissible. The jurisdiction of this Honble Court can be invoked only if the matter involves a substantial legal question, i.e., if there is a constitutional or legal issue upon which this Honble Court deems it necessary to re-adjudicate. The scope of appeal under Art. 136 is restricted to the aforementioned, and the Court is vested with the discretionary power to grant Special Leave or refuse it. The present case pertains to alleged non-payment of entertainment tax and it is the contention of the Respondents that it does not involve a substantial legal or constitutional question. Entertaining the present case would go against the stand of this Honble Court in which it stated as follows: The court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against. 1. The Respondent humbly submits before this Honble Court that it may not grant special leave to appeal under the plea to adjudicate and decide upon the dispute at hand as the Respondents were not afforded with an opportunity to be heard by the Additional Collector at the time of passing order and as a result, did not meet the ends of justice. 2. In the case of Pritam Singh v. State2, it was observed that the wide discretionary power conferred upon this Honble Court can be exercised sparingly and in exceptional cases. It is the contention of the Respondents that the present case does not involve such an exceptional question of law for the Honble Supreme Court to delve interfere and grant special leave. 3. The first instance of the principles being laid down for the grant of Special Leave can be seen in the case of Kapildeo Singh v. King Emperor3 adjudicated upon by the
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AIR 1950 SC 169 AIR 1950 FC 80 11 | P a g e

Federal Court. Though this Honble Court is not bound by the judgments of the Federal Court, the principles provide us with an understanding as to the circumstances under which Special Leave to Appeal can be granted. It was stated in the aforementioned case that exercise of prerogative takes place only where it is shown that injustice of a serious and substantial character has occurred or in a situation where there issue pertaining to admission of improper evidence by a lower court. It is abundantly clear from the facts of the present case that no grave injustice has been meted out to the Appellants and neither has there been admission of improper evidence against the Appellants. Thus, the Respondent contends present petition is not maintainable. 4. The purpose and scope of Article 136 was clarified by the Honble Supreme Court in the case of Bihar Legal Support Society v. Chief Justice of India 4. It was held that the extraordinary jurisdiction of the Supreme Court under Article 136 could only be invoked for the purpose of correcting a grave miscarriage of justice, and if the Supreme Court found that such injustice had been meted out, it would grant special leave to adjudicated and decide the case. In the present case, there has been no such injustice meted out by the Honble High Court in its order. In fact it has only corrected the injustice meted out by the Additional Collector. Thus, it provides no scope for appeal. 5. In several cases, including Dhakeswari Cotton Mills v. CIT 5 and Dunlop India Ltd. v. Union of India6, it has been made abundantly clear that the Honble Supreme Court that under Art. 136, the Supreme Court does not interfere with the current finding unless these findings are vitiated by errors of law or if the conclusion reached by the lower courts regarding the jurisdiction concerning the supervising of functioning of these bodies. However, in the present case there has been no error of law and neither has there been a mistake in assuming jurisdiction and thus, this Petition is not maintainable. 6. The Honble Supreme Court has also stated in the case of Shaw Wallace v. Workmen7 that its jurisdiction can only be invoked when there has been manifest injustice meted out, a fundamental legal error or perverse finding of facts. In the present case neither of the above requirements are met. Thus, the present case is not maintainable.
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AIR 1987 SC38 (1954) 26 ITR 775 (SC) 6 1977 AIR 597 7 AIR 1978 SC 977 12 | P a g e

7. The Honble Supreme Court, in general, does not interfere with the concurrent findings of a Tribunal or a High Court unless there is a mistake of law or omission of some important piece of evidence from consideration. In the present case, neither of the above criteria have been fulfilled and thus, in light of it, there is no ground for maintainability. In the light of the above contentions, the Respondents respectfully submit that the present petition is not maintainable.

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Issue No 2: Was the Assistant Collector under an obligation to give a hearing to the Company. If, yes, whether such denial of such opportunity goes to the root of the matter and vitiates the proceedings? The Respondent submits to the Honble Court that the Assessing office under the Bombay Entertainment Duty Act, 1923, has not followed the due process of the law. The Assessing officer has failed to give notice to the respondent and proceed on the merits of the case. It is rudimentary principle of law that the every person should be heard before being condemned or punished , which has not followed in this particular case. The Respondent are denied an opportunity of being heard by the statutory authority which is the mandatory obligation of the Collector under Section 4B of the 1923 act. The act of the collector in this particular case goes against various precedents of the Honble Court. The respondent submits that Collector being mandated under the act for collection of entertainment duty has failed in the primary obligation of issuing notice to the Respondent, which goes to the root of this matter. Respondent rely on the State of Orissa v. Bina Pani devi8 where the court held that . It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. The respondent submits that the Court gave effect the principle of natural justice wherever the matter had civil consequences. Respondent has not been given an hearing before the statutory authority which has lot of civil consequences, since the respondent have been forced to pay the entertainment duty . The respondent also relies on A.K Kripak v. Union of India9 where this Honble Court held that The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was
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[1967] 2 S.C.R. 625. [1970] 1 S.C.R. 457 14 | P a g e

thought that it included just two rules namely (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon there- after a third rule was envisaged and that is that quasi- judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi judicial in character. Arriving at a just decision is the aim of both quasi- judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. The University of Kerala10 the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that was necessary for a just decision on the facts of that case. In Sumer Chand Jain v. Union of India11 the Honble court held that when there is denial of natural justice the entire matter is vitiated since the denial of basic principle goes the root of the matter.

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[1969] 1 S.C.R. 317, Decision of the Supreme Court on 4th May 1967 15 | P a g e

The Collector being an quasi- judicial authority under the statue has an obligation for giving an opportunity of hearing to the respondent. The respondent relies on the Indian National Congress v. Institute of Social Welfare12 where the court held that the dictionary meaning of :the word quasi is 'not exactly' and it is just in between a judicial and administrative function. It is true, in many cases, the statutory authorities were held to be quasi-judicial authorities and decisions rendered by them were regarded as quasi judicial, where there were contest between the two contending parties and the statutory authority was required to adjudicate upon the rights of the parties. In Cooper vs. Wilson13, it is stated that "the definition of a quasi-judicial decision clearly suggests that there must be two or more contending parties and an outside authority to decide those disputes.. Thus, where there is a lis or two contesting parties making rival claims and the statutory authority under the statutory provision is required to decide such a dispute, in the absence of any other attributes of a quasi-judicial authority, such a statutory authority is quasi-judicial authority. In Queen vs. Dublin Corporation14, it was held thus : " In this connection the term judicial does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for purpose of this question, a judicial act seems to be an act done by competent authority upon consideration of facts and circumstances and imposing liability or affecting the rights. And if there be a body empowered by law to enquire into facts, makes estimates to impose a rate on a district, it would seem to me that the acts of such a body involving such consequence would be judicial acts." In Rex vs. Electricity Commissioners15 Atkin L.J., stated that when anybody of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, such body of persons is a quasi-judicial body and decision given by them is a quasi-judicial decision. The Commissioner, after making an enquiry and hearing the objections was required to pass order.

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AIR 2002 SC 2158 (1937) 2 KB 309 14 (1878) 2 Ir. R. 371 15 (1924) 1 KB 17 16 | P a g e

In summary, it can be said that from aforesaid decisions, where a statutory authority is empowered to take a decision which affects the rights of persons and such an authority under the relevant law required to make an enquiry and hear the parties, such authority is quasijudicial and decision rendered by it is a quasi-judicial act. In Schmidt v. Secretary of State for Home Affairs16 approved. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it 'negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi- judicial enquiry and not to administrative enquiry. It must logically apply to both. It cannot be said that the requirements of fairplay in action is any the less in an administrative enquiry than in a quasi-judicial one. Sometimes an unjust decision in an administrative enquiry may have far more serious consequences than a decision in a quasi-judicial enquiry and hence rules of natural justice must apply, equally in an administrative enquiry which entails civil consequences. Finally, the respondent relies on the Maneka Gandhi v. Union of India17, the facts of the case can be summarized in a nutshell, the appellant passport was impounded and was not given an hearing by the statutory authority, who was under no obligation to give the appellant an hearing but the 7 judge bench this Honble Court followed the due process of law which was until not recognized by the Honble Court till then. The respondent would like the take this court through the paragraphs of the land mark Judgment Sections 5, 6 and 10 of the impugned legislation (Passport Act) must be tested even under Art. 21 on canons of processual justice to the people outlined above. Hearing is obligatorymeaningful hearing, flexible and realistic, according to circumstances' but not ritualistic and wooden. In exceptional cases and emergency situations, interim measures may be taken, to avoid the mischief of the passportee becoming an. escapee before the hearing begins. "Bolt the stables after the horse has been stolen" is not a command of natural justice. But soon after the provisional seizure, a reasonable hearing must follow, to minimise procedural prejudice. And when a prompt final order is made against the applicant or passport holder the reasons must be disclosed to him almost invariably save in those dangerous cases, where irreparable injury will ensue to the State. A government which revels in secrecy in the field of people's
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[1968] 112 AC 690 (1978)1SCC 248 17 | P a g e

liberty not only acts against democratic decency but busies itself with its own burial. That is the writing on the wall if history were teacher, memory our mentor and decline of liberty not our unwitting endeavor. Public power must rarely hide its heart in an open society and system. Article 14 has a pervasive procession potency and versatile quality, equalitarian in its soul and allergic to discriminatory diktats. Equality is the antithesis of arbitrariness. The Legislature by making an express provision may deny a person the right to be heard. Rules of natural justice cannot be equated with the fundamental rights. Their aim is to secure justice and to prevent miscarriage of justice. They do not supplant the law but supplement it. If a statutory provision can be read consistently with the principles of natural justice the court should do so but if a statutory provision that specifically or by necessary implication excludes the application of any rules of natural justice this Court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. To a limited extent it may be necessary to revoke or to impound a passport without notice if there is real apprehension that the holder of the passport may leave the country if he becomes aware of any intention on the part of the Passport Authority or the Government to revoke or impound the passport but that itself would not justify denial of an opportunity to the holder of the passport to, state his case before the final order is passed. The legislature has not by express provision excluded the right to be heard. We may commence the discussion of this question with a few general observations to emphasise the increasing importance of natural justice in the field of administrative law. Natural justice is a great humanising principle intended to invest law with' fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action.

Thus, the soul of natural justice is fair play in action' and that is why it has received the widest recognition throughout the democratic world. In the United States, the right to an administrative hearing is regarded as essential requirement of fundamental fairness. And in England too it has been held that 'fair play in action' demands that before any prejudicial or adverse action is taken against a person, he must be given an opportunity to be heard18.

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Bar Council of India vs. High Court Kerala, (2004) 6 SCC 311 18 | P a g e

Considering various precedents as mentioned above and relying heavily on the Maneka Gandhi Judgment, where the 7 Judge Bench of this Honble Court recognized the importance of the Principles of Natural Justice, the Respondent humbly submits to this Court to held that Order of the Collector void on the grounds of the statutory authority denied an opportunity of hearing to the respondent which was an obligation under Section 4B (2) of the Bombay Entertainment Duty Act,1923. The acts of theCollector has caused lot of civil consequences to the Respondent which puts the Respondent into lot of hardships. Respondent being a company who are incorporated under Section 25 of the Companies, which speaks about the companies incorporated not for profit has been ordered to pay extra duty on the exhibition conducted by us without giving an opportunity of hearing or notice, since the issue goes to the root of the matter, the Respondent urge the Honble Court to dism iss the case and to affirm the High Court decision. .

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Issue No 3.: Does the Trade exhibition organized by the Respondent falls under the definition of the Entertainment as defined under the Act and is the Company liable to payable to duty of such exhibition?

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PRAYER

Wherefore in the lights of the statement of issues, arguments advanced and authorities cited before the Honourable bench of the Honble Supreme Court of Indi,the Counsel for Respondents most humbly prays to this Honourable this Court to adjudge and declare the following:

1. The Stay order be vactated 2. Special Leave Petiton be dismissed 3. And Refund of the extra duty paid by the Respondent with interest as applicable.

OR

May pass any order, decree or judgement in the light of Justice, Equity and Good Conscience.

For which the counsel for the Appellant shall pray duty bound as ever most humbly to this Honourable Court.

All of which is most respectfully, humbly and equitably submitted and affirmed before this Honourable Court.

Sd/Respondents

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