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BEFORE
THE HON’BLE SUPREME COURT OF INDIA
AT
NEW DELHI

Writ Petition No____________/2019

Under Article 32 of the Constitution of India, 1950

IN THE MATTER OF

ACTION COUNSEL NITESH…………………..………Petitioner

verses

ROYAL AQUA………………………….………....….. Respondent

MEMORANDUM FOR THE PETITIONER

G. SANJAY KRISHNA
COUNSEL FOR PETITIONER

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TABLE OFOF
TABLE CONTENTS
CONTENT

INDEX OF AUTHORITIES -------------------------------------------- 3

STATEMENT OF JURISDICTION ---------------------------------- 4
STATEMENT OF FACTS ----------------------------------------------5
STATEMENT OF ISSUES ---------------------------------------------- 6
SUMMARY OF ARGUMENTS ---------------------------------------- 7
ARGUMENTS ADVANCED -------------------------------------------8
PRAYER AND CONCLUSION ----------------------------------------13

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INDEX
INDEX OF
OF AUTHORITIES
THE AUTHORITY

 Books Referred.
1. Indian Constitutional Law, 7th Edition, M.P. Jain, LexisNexis 2016.

2. The Indian Penal Code, Ratanlal & Dhirajlal,34th Edition, Lexis Nexis,2015.

3. Criminal procedure Code

 Statutes.
1. Indian Constitutional Law,7th Edition, M.P. Jain, LexisNexis 2016.

2. The Indian Penal Code, Ratanlal&Dhirajlal,34th Edition, LexisNexis,2015.

3. Criminal procedure Code

 Website.
1. www.manupatra.com

2. www.lawctopus.co.in

 Indian Cases.

1. CHAKMAS IN ARUNACHAL VS STUDENTS UNION AASPSU

2. A.P Pollution Control Board II V. Prof. M.V. Naidu and others

3. Som Prakash v/s union of India

4. RD Shetty V. International airport authority

5. U.P Warehousing corporation v/s Vijai Narain

6. Rajasthan State Electricity Board, Jaipur v. Mohan & Ors

7. Ajay Hasia vs Khalid Mujib

8. Indian council of of enviro-legal action V. Union of India [(1996)3 SSC 212]

9. A.P Pollution Control Board II V. Prof. M.V. Naidu and others [(1999)2 SSC 718]

10. Narmada bachao andolan v Union of India

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STATEMENTSTATEMENT OF JURISDICTION
OF JURISDICTION

The Petitioner, ACTION COUNSEL RITESH has the honor to submit this
Memorandum on behalf of the Petitioner to the jurisdiction of Hon’ble Supreme Court of India,
under Article 32 of the Constitution of India.

The Hon’ble Supreme Court has the jurisdiction to adjudicate the present matter.

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STATEMENT OF FACTS

 State of Rainistan (the fact that the river rainis pass through almost all the villages of the state
gave this name) is a state in Indian union .
 The village in the state name Ritesh is known for its individualize techniques of use of
ground water in the locality.
 In the year 2019, the government Rainisthan by the virtue of an agreement entered in with
Royal Aqua. A private company designated for bottling of water, vested certain land areas of
Ritesh with the latter . The agreement was for a period of 2yrs and it bad enabling provisions
for the agreement to continue in force subject to approval by both the parties.
 There was absolutely no problem with regard to vesting of land with the company as it was
for public process and the government was entitled to do the same under valid legislation.
 The problem that was faced by the inhabitants of the village of Ritesh was that the ground
water depleted due over exploitation of the same by the company.
 As action council named Ritesh action council was formed by the agreed villages against the
activities of Royal Aqua as their primary source of obtaining water is depleting.
 In the mean hence, the company whose main function was to supply drinking water in the
village of Ritesh acquired monopoly status by the virtue of government recognition.
 Though the action council approached the high court under article 226 of Indian constitution
alleging violation of basic rights of the villagers against the private company the honorable
high court discussed solely on the ground non-maintainability of writ petition against the
private authority.
 The action council approaches the Supreme court for the enforcement of fundamental right
 The respondents enters appearance contesting the claims of the petitioner including maintain
ability of the writ petition.

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STATEMENT OF ISSUES

1. WHETHER THE WRIT PETITION FILED BY THE PETITIONER UNDER

ARTICLE 32 OF THE CONSTITUTION OF INDIA IS MAINTAINABLE?

2. WHETHER THE ENTITY ROYAL AQUA COMES UNDER THE DEFINATION

OF STATE UNDER ARTICLE 12 OF THE CONSTITUTION OF INDIA?

3. WHETHER THERE IS AN ANY INFRINGEMENT OF FUNDAMENTAL

RIGHTS OF THE VILLAGES?

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SUMMARY OF ARGUMENTS

 Whether The writ petition filed by the petitioner under Article 32 of the
Indian Constitution is maintainable.
It is humbly submitted before this Hon’ble Court that the writ petition is
filed by the Ritesh action council is maintainable under article 32 of the Indian constitution.
Article 32 is the constitutional remedy for the infringement of the fundamental rights of the
individuals. The problem that was forced by the inhabitants of the village of Ritesh was that the
ground water depleted due to over exploitation by that the private company. There is huge
depletion of the ground water of villagers by that company due to that reason they were facing
lots of problem, because the water is the basic needs of the human life, villagers has suffered
intensely. In this case, as there is the violation of fundamental rights of the individuals of the
village and having all the remedies being exhausted the counsel for the petitioner has filed the
writ petition before the hon’ble supreme court.

 Whether the entity Royal Aqua comes under the definition of state under
Article 12 of the constitution of India.
Yes, the Royal Aqua comes under the Article 12 which defines about What is the
state? That operation of the company used as a state instrument. The main thing that the
government of the state Ranistan has delegated the function of providing the drinking water to
the Royal Aqua company, meaning the company is performing what is performing as a
government function. The company was doing the service of the welfare of the society then
indirectly it will become the instrument of the state. The company was doing the service of the
welfare of the society then indirectly it will become the instrument of the state. The mainly
things which includes in the
State and the government and parliament of India Which the State includes the Government and
Parliament of India and the Government and the Legislature of each of the States and all local or
other authorities within the territory of India or under the control of the Government of India”.
Though the instrumentality, agency, or a person who conduct commercial activities according to
business principle and are separately under their appropriate by laws or memorandum of
association, they become the arms of the government. Therefore, the Royal Aqua comes under
the definition of the state under the Article 12 of the construction of India.

 Whether there is an any infringement of fundamental rights of the villages .

Yes, there is an infringement of fundamental rights of the villages. However, the
Article 21 constitution of India says that protection of life and personal liberty and excepting
according to procedure establishing by law. So, the company was exploiting the Article 21 the
right to life of the villagers. Due to that reason villagers intensely suffer under it So we say in
this Article that there is infringement of fundamental rights of the villages.

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ADVANCED ARGUMENT

1. Whether the writ petition is maintainable under the Article 32 constitution

of India
It is humbly submitted before the Hon’ble Supreme Court of India that the writ
petition is maintainable under Article 32 of the Indian Constitution. In Article 32 which says that
the fundamental rights are infringement of the individually who suffers to file a suit before the
Hon’ble Court so in the above issues explains that there is an infringement in the fundamental
rights as an individually of the village in the Rainistan . in which have been struggle for the
drinking water. Although that the made has been fulfilled by the virtue of the private company
but after the time there are two ore issues which the monopoly status in which it was very
difficult the inhabitants of that village to have the drinking water.
In A.P Pollution Control Board II V. Prof. M.V. Naidu and others the right to
access to clean drinking water is fundamental to life and there is a duty on the state under article
21 to provide clean drinking water but also to protect water sources from pollution and
encroachment. Any act of the state that allows pollution of a water body must be treated as
arbitrary and contrary to the public interest and in violation of the rights to clean water under
article 21.

In the case of CHAKMAS IN ARUNACHAL VS STUDENTS UNION

AASPSU: In this case the student organization of the arunachal Pradesh issued an ultimatum to
the Chakmas residing in Arunachal to quit the state within the date fixed by them. The National
Human Rights Commission took the matter to the supreme court in a public interest litigation
under Art 32 of the constitution seeking to enforce the rights under Art 21 of the constitution.
The supreme court issued the direction to the state of Arunachal to ensure that the threat by the
students organization is repelled with force and the life and liberty of the Chakmas residing at
Arunachal is protected .The court observed that our constitution confers certain rights on every
human being and certain other rights on the citizens .So no person can be deprived of his life and
personal liberty except according to the procedure established by law.
After which the above case relating to our facts that the company of Royal Aqua is mostly comes
under the definition of state under the Article 21 of constitution of India so hence, that the Writ
petition is maintainable.

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2. Whether the entity of Royal Aqua comes under the definition of state
under the Article 12 of the Constitution of India
It is humbly submitted before the Hon’ble Supreme Court of India that the
entity of Royal Aqua is comes under the definition of state under the Article 12 of the
Constitution of India. Which it is clearly speaks the authority of a state. Which the case is
relating to Ajay Hasia Vs Khalid Mujib in this judgement that which provides the 6 clauses in
order to a conclusion. Which it is a state authority or not. Hence by relating the facts of the case
we known that the Royal Aqua is a state authority or not. Theses clauses are following:

A. Whether the financial assistance of the state is so much as to meet almost entire
expenditure of the corporation, it would afford some indication of the corporation
being impregnated with government character.
B. It may also be a relevant factor… whether the corporation enjoys monopoly status
which is the state conferred or state protected.
C. Existence of deep and pervasive state control may afford an indication that the
corporation is a state agency or instrumentality.
D. If the functions of the corporation of public importance and the closely related to
government function, it would be a relevant factor in classifying the corporation as an
instrumentality or agency of government.
E. One thing is clear that if the entire share capital of the corporation is held by
government it would go a long way towards indicating that the corporation is an
instrumentality or agency of government
F. Specifically which a department of Government is transferred to a corporation it
would be a strong factor of this inference of the corporation being an instrument or
angency of government. If any of these clases are in connection with connection with
the private company then it is support of an inference to state it as an state.

In the above which the clauses of B and C says strongly support that the entity
of Royal Aqua is comes under the authority of state.

Which in the case of the Ajay Hasia vs Khalid Mujib that the corporation is
involved in performing the importance of the public function then it may be regarded as the state
agency or the instrument of the state here Royal Aqua is also performing the act of supplying the
water to the inhabitants. It may also be a relevant factor to consider whether the corporation
enjoys monopoly status which is the state conferred or state protected. There can be the state
aggregate weight of the corporation ties to the state.
As the institution so called Royal Aqua pvt.co is providing the bottling of
drinking water and in return they earn profits. So they were carrying the business activities, and
other then state this company will consider as the other authorities which is mention under Art

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12 of the Indian constitution because that company is not clearly mention as state but it is
consider to be state instrument.Other authorities in Art 12 includes all constitutional or statutory
authorities on whom powers are conferred by law.
In Som Prakash v/s union of India, the supreme court held that a
government company (Bharat petroleum corporation) fell within meaning of the expression the
state used in article 12.

Also, which the case Dayaram Shetty vs International Airport

Authority of India gives that the Airport It will comes under the State. which the point that the
“corporation acting as the agency of the state or the instrumentality of the state would have same
limitations in the field of constitution and as the same of the administration as the government
itself although in the eyes of the Law it would be distinct entity.
In U.P Warehousing corporation v/s Vijai Narain it was held that the
U.P warehousing corporation which was constituted under a statute and owned and controlled by
the government was an agency or instrumentality of the government and therefore the state
within the meaning of article 12.

As the relating case in the Court in  Rajasthan State Electricity Board,

Jaipur v. Mohan & Ors. (1967) 3 S.C.A. 377 said that an "authority is a public administrative
agency or corporation having quasi- governmental powers and authorized to administer a
revenue- producing public enterprise. The expression "other authorities" in Article 12 has been
held by this Court in the Rajasthan Electricity Board case to- be wide enough to include within it
every authority created by a statute and functioning within the territory of India, or under the
control of the Government of India. This Court further said referring to earlier decisions that the
expression "Other authorities" in Article 12 will include all constitutional or statutory authorities
on whom powers are conferred by law.

In the above judgement of supreme court, there were tests which were enunciated whether an
entity is an instrumentality or agency of state:

1. Where the financial assistance of the state is so much as to meet almost entire
expenditure of the cooperation, it would afford some indication of the cooperation being
impregnated with governmental characters.
2. One thing is clear that if the entire share capital of the cooperation is held by government,
it would go a long way towards indicating that the cooperation is an instrumentality or
agency or government.
3. It may also be a relevant factor whether the cooperation enjoys monopoly status which is
the state conferred or state protected.
4. Existence of deep and pervasive state control may afford an indication that the
cooperation is a state agency or instrumentality.

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5. If the functions of the cooperation of public importance and closely related to

governmental functions it would be a relevant factor in classified the corporation as a
instrumentality or agency of government.
6. Specifically, if a department of government is transferred to corporation, it would be a
strong factor supportive of this inference of the corporation being an instrumentality or
agency of government.
All the points to the facts that the government of Rainisthan is using the private entity as
an instrument of the state which has been initiated to provide drinking water, leading to
the fact that the private entity acting as an instrument of the government comes with
under the meaning of other authorities as mentioned in the definition state provide under
article 12 of the constitution. As Royal Aqua private company has been conferred with
the state of monopoly over its functions which also happens to be governmental, which is
also with the approval and under the protection of the state, the council for the petitioner
humbly pleads to the honble supreme court by taking all the cases into consideration its
previous judgments in similar cases and declare that the private entity named Royal Aqua
private company which is a government body which fall within the meaning of other
authorities mentioned in the definition of state in article 12 of Indian constitution.

Hence it is clearly that the entity of Royal Aqua is comes under the state
and it is the agency of the state so it is come under the state.

3. Whether there is violation of fundamental right of the inhabitance of the

village named Ritesh.

There is violation of the fundamental rights of the inhabitants of the village named
Ritesh which is thereby supported by the article 21 of the Indian Constitution which states
“Protection of life and personal liberty No person shall be deprived of his life or personal liberty
except according to procedure established by law” although the whole article is not in connection
with the issue stated but we are primarily look at the “protection of life”. So by looking into the
definition of the “life” we can state that there is violation of fundamental right of the individuals.
The life of water is life itself. Fundamental rights are constitutional guarantees. Constitution of
India is a bible of rights and cherished aspersion of people of India. The holy document reflects
the promised rights, future governing policy and mechanism to realize and enforce such rights.
Number of rights have been enumerated in constitution. Though water has been constitutionally
dealt with yet there is no fundamental guarantee of right to water as such. It may come as a
surprise to many that water- which after air is the most fundamental requirement for human
survival. So, the only source of water they left to drink is the bottling of drinking water which is
provided by mopolistic status to do so, by virtue of an agreement between the private entity and
the government.

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In Indian council of enviro-legal action V. Union of India (the bichhri pollution

case), following the decision in the oleum gas leak case and based on the polluter pays principle,
the polluting industries were directed to compensate for the harm caused by them to the villagers
in the affected areas, specially to the soil and to the underground water.

In A.P Pollution Control Board II V. Prof. M.V. Naidu and others the right to
access to clean drinking water is fundamental to life and there is a duty on the state under article
21 to provide clean drinking water but also to protect water sources from pollution and
encroachment. Any act of the state that allows pollution of a water body must be treated as
arbitrary and contrary to the public interest and in violation of the rights to clean water under
article 21.
The above judgments are illustrative judgments of how judicially the right to water
has been dealt with. Access to safe drinking water is fundamental precondition for the enjoyment
of several human right, including the right to education, health, life.

In the case Narmada bachao andolan v Union of India it has been stated that
“Water is one element without which life cannot sustain. Therefore, it is to be regarded as one of
the primary duties of the Government to ensure availability of water to the people.” In this case
which the relating to our case so private company Royal Aqua has got a monopoly status by the
virtue of the government recognition whose primary function was to supply the drinking water to
the villager.

The Royal Aqua private company has deprived the elements the elements of food,
water and air which is any how essential for a human to live a life. Without any fail the fact that
Royal Aqua has deprived the means to living means to life, the right to live of the villagers, as
the Royal company comes under the definition of state under article 12 and it has violated
fundamental right of article 21 so the petition filed is maintainable. The one more thing that the
council humbly appeals the supreme court to issue a writ of mandamus, to immediately give the
permanent or temporarily until they shift to another locality.

Basically, the life of the villagers was greatly suffering due scarcity of water they
couldn’t able to survive well. So, the private entity is responsible for the depletion water of the
villagers. At the end the royal aqua is responsible for denying the Art 21 right to life of the
citizens. Hence, there is an infringement of Fundamental rights in the villages.

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PRAYER AND CONCLUSION

Wherefore in the light of the facts of the case, issues raised, arguments advanced and

authorities cited, this Hon’ble Court may be pleased to declare that

1. Writ Petition is maintainable

2. The entity of Royal Aqua is come under the definition of the State under the
Article 12 of the constitution of India.

3. There is an infringement of fundamental rights in the state

And to pass any other order in favor of the petitioner that it may deem fit in the interest of

justice, equity and good conscience. All of which are respectfully submitted,

Place: New Delhi S/d __________________

Date: 19/02/2019 Counsel for the Petitioner

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