NMC 09 (P) : Under Article 32 of The Constitution of India

3RD SMT.
NIRMALA DEVI BAM MEMORIAL INTERNATIONAL VIRTUAL MOOT COURT COMPETITION, 2021
NMC 09 (P)
3RD SMT. NIRMALA DEVI BAM MEMORIAL INTERNATIONAL

VIRTUAL MOOT COURT COMPETITION, 2021
BEFORE THE HON’BLE SUPREME COURT OF INDIA
UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA
IN THE MATTER OF
KAZA PORYO.........................………………………...………. PETITIONER
V.
UNION OF INDIA &

ANR......................................................RESPONDENTS
WRIT PETITION N o . X X X O F 2021
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND OTHER HON’BLE

JUSTICES OF THE SUPREME COURT OF INDIA
i
- WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER -
3RD SMT. NIRMALA DEVI BAM MEMORIAL INTERNATIONAL VIRTUAL MOOT COURT COMPETITION, 2021
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER
TABLE OF CONTENTS
COVER PAGE…………………………………………………………………………..
…….i
TABLE OF CONTENTS………………………………………….…...…………………ii-
iii
LIST OF ABBREVIATIONS………………………………………………...….……….…
iv
INDEX OF AUTHORITIES…………………………………………………………….v-
xiii
STATEMENT OF JURISDICTION………………………………………………………
xiv
STATEMENT OF FACTS……………………………………………...……………..……
xv
ISSUES FOR CONSIDERATION ……………………...……………………..

………….xvi
SUMMARY OF ARGUMENTS…………………………………………….………xvii-
xviii
WRITTEN SUBMISSIONS…………………………………………………..………….1-
24
[1.] Whether the writ petition filed by Kaza Poryo is

Maintainable?..................................1
A. The petitioner has a bona fide interest and hence they have a locus
standi……...1
B. There was violation of fundamental rights & there exists substantial questions
of
ii
law……………………………………………………………………………….
2
C. There is no requirement for the Petitioner to exhaust local
remedies…………….3
i. The right under Art. 32 is not subject to the exhaustion of local
remedies………………………………………………………………....
3
ii. The rule of exhaustion of local remedies is not binding on this Hon'ble
Court………………………………………………………………….....4
D. The Hon’ble Court is “Sentinel on the Qui Vive”
……….....................................4
[2.] Whether the word allottee is violative of Article 14, 19, 21 and 300A of Constitution
of India?
....................................................................................................................................5
A. It violates Principle of Equality which is Basic Structure of Constitution…….

……….5
B. It didn’t pass the prism of Article 14 of the
Constitution.................................................6
C. It is arbitrary and unreasonable…………………………………………………………
7
i. It is
Discriminatory..............................................................................................8
ii. It didn’t pass the Wednesbury
test........................................................................9
D. It is in violation of Article
19..........................................................................................10
i. Restriction under Article19 (6) is
unreasonable.................................................10
E. It is not in consonance with Article 21 of the
Constitution............................................11
i. It is in violation of procedure established by
law...............................................12
iii
ii. It is a piece of Colourable

Legislation................................................................13
F. It is in violation of Article 300-
A...................................................................................13
[3.] Whether the RERA and CPA are in conflict?

..............................................................14
A. It defeats legislative intent for the enactment of

RERA................................................14
B. Financial drain for the promoter, if parallel remedies are
available…………………...15
C. Special act should prevail over General
law..................................................................16
[4.] Whether the word allottee is arbitrary which is made in RERA?

...............................17
A. Under Inclusiveness and Over

Inclusiveness................................................................17
B. Classification is not
justifiable………………………………………………..............18
i. It does not satisfy the reasonable classification
test…………………………...18
a) It is not in consonance with Doctrine of
Proportionality……………...19
C. Purpose of act get
defeated............................................................................................20
i. It is Constitutionally
immoral...........................................................................20
ii. It is not based on Doctrine of Legitimate
Expectation.......................................21
iii. It is Ultravires in
nature.....................................................................................21
iv
[5.] Whether Kaza Poryo is liable to refund the amount invested by Mr. Ashok?
..........22
A. There is no concealment of facts from the side of Kaza

Poryo......................................22
B. There is default of post- payment from the side of
allottees…………………………..23
C. There was vitiation of contract from the side of the
allottee.........................................24
PRAYER……………………………………………………………………………….……25
*NOTE: It is Bookmarked. Click on items (Issues) to directly jump to the respective

page.
LIST OF ABBREVIATIONS
A.I.R. All India Records

IBC Insolvency and Bankruptcy Code
Art. Article
Cl. Clause
Const. Constitution
NCLAT National Company Law Appellate Tribunal
Hon’ble Honourable
Anr. Another
Ors. Others
Pg. Page
S.C.R. Supreme Court Report
S.C. Supreme Court
S.C.C. Supreme Court Cases
v
v. Versus
CP Act Consumer Protection Act
RERA Real Estate Regulatory Authority
¶ & Para. Paragraph
A.P. Andhra Pradesh
PC Privy Council
FR Fundamental Rights
NCLT National Company Law Tribunal
UOI Union of India
Co. Company
Ed. Edition
U.S. United State
& And
Ltd. Limited
INDEX OF AUTHORITIES
CASES
1. A.K. Gopalan v. State of Madras , A.I.R. 27 (S.C. 1950)

…………………………….......12
2. A.K. Roy v. Union of India, 1 S.C.C. 271 (1982) ...
…………………………………........12
3. ABSK Sangh (Railway) v. Union of India, 1 S.C.C 246 (1981)
……………………..........4
4. Ajay Hasia v. Khalid Mujib Sehravardi, 1 S.C.C. 722 (1981) …………………….…7 &
8
5. Ajoomal Lilaram v. Union of India, A.I.R. 278 (S.C.
1983) ...............................................21
6. Ajoy Kumar Banerjee and Ors. v. Union of India and Ors. , 3 S.C.C. 127 (1984)
………....9
vi
7. Alopi Parshad and Sons. Ltd. v. Union of India , 2 S.C.R.793 (1960)

…………………....24
8. Ameerunnissa Begum and Ors. v. Mahboob Begum and Ors. , S.C.R. 404
(1953) ..............9
9. Anand Prakash v. Asst. Registrar , A.I.R. 22 (All. 1968)
…………………………….......21
10. Anuj Garg v. Hotel Association of India , 3 S.C.C. 1 (2008) …………………………….
…7
11. Anwar Ali Sarkar v. The State of West Bengal , S.C.R. at pp 340-41
(1952) .......................6
12. Ashutosh Gupta v. State of Rajasthan and Ors., 4 S.C.C. 34 (2002)
…………………......9
13. Associated Provincial Pictures ltd v. Wednesbury Corp., 1 K.B. 223 (1948) …….....9 &
10
14. Bachan Singh v. State of Punjab, A.I.R. 1325 (S.C. 1982) ………………….……..3, 6 &
7
15. Bandhua Mukti Morcha v. Union of India, A.I.R. 802 (S.C. 1984) ……………........1 &
12
16. Basheshar Nah v. I.T. Commissioner, A.I.R. 149 (S.C.
1959) .............................................2
17. Bennet Coleman v. UOI, A.I.R. 106 (S.C. 1973)
…………………………………….........1
18. Bihar v. Kameshwar Singh, A.I.R. 252 (S.C. 1952) ……………………………….
…….14
19. Bikramjit Chatterji and Ors. v. Union of India , 9 S.C.ALE 588 (2019)
………………......13
20. Binny Ltd. And Anr. v. Sadasivan and Ors., A.I.R. 320 (S.C. 2005), ¶
11…………............2
21. Board of Port of Bombay v. Dilip Nandkarni, A.I.R. 109 (S.C. 1983)
………………........11
22. Bodhisattwa v. Subhra Chakraborty, A.I.R. 922, 926 (S.C. 1996)
………………………...3
vii
23. Boothlinga Agencies v. V.T.C. Poriaswami Nadar , 1 S.C.R. 65 (1969), at Page

79……...24
24. Brogden v. Metropolitan Railway Co., 2 App Cas. 666 (1877)
………………………......22
25. Budhan Choudhary & Ors. v. The State of Bihar, A.I.R. 191 (S.C. 1955) ………….……
7
26. Burrabazar Fire Works Association v. Comm. of Police, A.I.R. 121 (Cal. 1998)
………...12
27. Calcutta Electricity Supply Corp. Ltd. v. Subhash Chandra Bose , 1 L.L.N. 353
(1992) ....11
28. Chairman, Railway Board v. Chandrima Das, A.I.R. 998 (S.C. 2000)
………………......11
29. Chandra Raja Kumar v. Police Commissioner Hyderabad , A.I.R. 302 (A.P.
1998) ..........11
30. Chandrakant Kakodkar v. State of Maharashtra, A.I.R. 1970 S.C. 1390 (S.C.
1970) .........10
31. Charan Lal Sahu v. Union of India, A.I.R. 1480 (S.C. 1990), ¶
35…………………...........2
32. Chintamani Rao v. State of M.P., A.I.R. 118 (S.C. 1951)
…………………………….......10
33. Chitra Sharma and Ors. v. Union of India and Ors ., 144 S.C.L 1 (2017)
…………….......13
34. Coimbatore Co-op Bank v. Co-op Bank Employees Assn, 4 S.C.C. 669 (2007)
………...11
35. Collector of Customs v. Sampathu Chettty , A.I.R. 316 (S.C.
1963) ..................................10
36. Essar Steel India Limited v. Satish Kumar Gupta and Ors. , S.C.C. 1478 (2019)
………......9
37. Common Cause v. Union of India, 6 S.C.C 552 (2014)
………………………………........1
38. Common Cause: A Registered Society v. UOI , A.I.R. 1999 S.C. at 3020 (S.C. 1999)
…. ..3
viii
39. Consumer Education and Research Centre v. Union of India, 3 S.C.C. 42 (1995)
…........12
40. CPIO v. Subhash Chandra Aggarwal , A.I.R. 521 (S.C. 2019)
……………………….......19
41. D.A.V College v. State of Punjab, A.I.R. 1731 (S.C. 1971)
………………………............2
42. D.C. & G.M. v. Union of India, A.I.R. 1973 (S.C. 1983)
…………………………….........1
43. D.C. Wadhwa v. State of Bihar , 1 S.C.C 378 (1987)
………………………………............2
44. D.S. Nakara v. Union of India, 1 S.C.C. 305 (1983) ………………………………………
7
45. Dalmia case; S.I.S. Mills Assn. v. Union, AAP. 75, 81-82
(1972) ......................................6
46. Daryao v. State of UP, A.I.R. 1457 (S.C. 1967)
…………………………………………...3
47. Deepak Sibal & Ors. v. Punjab University , S.C.C. 903 (1989) ...................................5 &
18
48. Delhi Development Authority v. Kenneth Developers Ltd., S.C.C. 5370 (2016)
……….24
49. Delhi Metro Rail Corporation Ltd. v. Tarun Pal Singh and Ors. , 14 S.C.C. 161
(2018) ......9
50. Director of Public Works and Anr. v. Ho Po Sang and Ors. , 3 W.L.R. 39 (1961)
……….14
51. District Registrar and Collector v. Canara Bank, A.I.R. 186 (S.C. 2005)
………………....8
52. Dolly Chanda v. Chairman, A.I.R. 5043 (S.C. 2004) …………………………………...…
7
53. E. V. Chinnaiah v. State of Andhra Pradesh and Ors ., 1 S.C.C. 394 (2005)
…………......19
54. E.P. Royappa v. State of Tamil Nadu , 4 S.C.C. 3 (1974) ……………………….……7 &
8
ix
55. Federation of Bar Association in Karnatka v. Union of India, A.I.R. 2544 (S.C.
2000) ........2
56. Forum for People's Collective Efforts and Ors. v. State of W. B ,3 S.C.R. 1 (2021) ….
….14
57. Francis Coralie Mullin v. Union Territory of Delhi, 1 S.C.C. 608 (1981) ………....11 &
12
58. Glanrock Estate (P) Ltd. v. State of T.N. , 10 S.C.C. 96 (2010) at page 111
……………......6
59. Gullapalli Negeswara Rao v. A.P. State R.T.C. , A.I.R. 308, 316 (S.C. 1959)
…………....13
60. Harakchand v. UOI, A.I.R. 1453 (S.C.
1970) .....................................................................10
61. Haryana Development Authority v. Dropadi Devi, 9 S.C.C. 514 (2005) ……...…….3 & 7
62. Himachal Road Transport Corporation v. Dinesh Kumar , 4 S.C.C. 560 (1996)
………......5
63. Hindustan Construction Ltd. & Ors. v. Union of India & Ors. , A.I.R. 122 (S.C.
2020) ......9
64. Huang v. Secretary of State for the Home Dept , 4 All ER 15 (2007) para 19 p
29.............11
65. Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, 1 S.C.C. 98 (1980)
…........4
66. I.R Colho v. State of Tamil Nadu, 7 S.C.C. 550 (1998)
……………………………............2
67. In Maneka Gandhi v. Union of India, 1 S.C.C. 248 (1978)
……………………………......8
68. Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India , 1 S.C.C. 641
(1985) ....9
69. Indrajit Barua v. The State of Assam and Ors. , A.I.R. 513 (Del. 1983)
………………......12
70. Innoventive Industries Limited v. ICICI Bank and Anr., 1 S.C.C. 407 (2018) ……………
7
71. Jabalpur Bus Operators’ Ass. v. Union of India, A.I.R. 62 (M.P. 1994)
………………....13
x
72. Jalan Trading Co v. Mill Mazdoor Sabha, A.I.R. 691 (S.C. 1967)
……………………....13
73. Jayvantsinghji v. State of Gujarat, A.I.R. 821 (S.C. 1962)
……………………………....13
74. Jitendra Kumar & Ors. v State of Haryana & Anr., S.C.C. 5803 (2007)
…………….......21
75. John Vallamonttom v. Union of India, 6 S.C.C. 611 (2003)
………………………….......20
76. Joseph Shine v. Union of India, 3 S.C.C. 39
(2019) .............................................................9
77. Justice K.S. Puttuswamy and Ors. v. Union of India. , 10 S.C.C. 1 (2017) ...........9, 11 &
12
78. K. Kunhikoman v. State of Kerala, A.I.R. 23 (S.C. 1962)
……………………………....13
79. K. Nagaraj and Ors. v. State of Andhra Pradesh and Anr. , 1 S.C.C. 523
(1985) .................9
80. K. T. Plantation Private Ltd. and Anr. v. State of Karnataka , A.I.R. 1461 (S.C.
1973) ......13
81. K.C. Gajapati Narayana Deo v. State of Orissa, A.I.R. 375 (S.C.
1953) ...........................13
82. K.K. Kouchunni v. State of Madras, A.I.R. 1959 S.C. 725 (S.C. 1959)
…………………...3
83. K.R. Lakshman v. Karnataka Electricity Board , (2001) 1 S.C.C. 442………………...
…..18
84. Kanaya Ram and Ors. v. Rajender Kumar and Ors ., 1 S.C.C. 436 (1985) ………….
…….14
85. Kangshari Haldar v. State of West Bengal , A.I.R. 457 (S.C. 1960)
……………………......6
86. Kanubhai Brahmbhatt v. State of Gujarat , A.I.R. 1159 (S.C. 1987)
………………….........4
87. Karnataka Band Restaurants Assn. v. State of Karnataka, 4 S.C.C. 372 at 393
(2018) .......6
xi
88. Kartar Singh v. State of Punjab, 3 S.C.C. 569 (1994) ……………………………….……

7
89. Kasturi Lal v. State of Jammu & Kashmir , A.I.R. 1992 (S.C. 1980)
……………………...21
90. Kathi Raning Rawat v. State of Saurashtra, S.C.C. 123 (1952)
………………………........5
91. Kehar Singh v. State (Delhi Admn) , 3 S.C.C. 609 (1988)
………………………………...20
92. Kesavananda Bharati v. State of Kerala, 4 S.C.C. 225 (1973) ......................................2 &
5
93. Kharak Singh v. State of Uttar Pradesh, A.I.R. 1295 (S.C. 1963) …………………...3 &
12
94. Kirti Kumar v. Indian Oil Corporation, Ahmedabad , A.I.R. 235 (Guj. 1983)
……….......21
95. Kishan Lal Lakhmi Chand v. State of Orissa , 4 S.C.C. 461 (1993)
……………………....8
96. Lalji Raja and Sons v. Hansraj Nathuram, 1 S.C.C. 721 (1971)
………………………….14
97. Lenigh Valley Coal Cp. v. Yensavage, 218 F 547 (1914) …………………………….
….16
98. LIC of India v. General Secretary and Ors., IILLJ317Guj. (2012), ¶
27………………......10
99. Lmj International Ltd. v. Sleepwell Industries Co. Ltd. , 1 C.L.J. 301 (2013)
…………....23
100. L'Office and Anr. v. Yamashita Co. Ltd ., 1 AllE.R. 20 (1994) …………………...
…..18
101. M Janardhan Rao v. Joint Commissioner of IT , 2 S.C.C. 324 (2005)
………….............2
102. M. Nagaraj v. Union of India, 8 S.C.C. 212 (2006)
………………………………........5
103. M.G. Badappanavar v. State of Karnataka, 2 S.C.C. 666 (2001)
……………………....5
xii
104. M.S. Shivananda v. Karnataka Road Transport Corp., 1 S.C.C. 149 (1980)
………….14
105. MS. Sethi Auto Service Station v. Delhi Development Authority & Ors. , A.I.R. 904
(S.C. 2009)
…………………………………………………………………………….....21
106. M/s Shantistar Builders v. Narayan Khimalal Totame , 1 S.C.C. 520 (1990)
…….......13
107. Madhu Limaye v. Sub-Divisional Magistrate, Monghgyr & Ors., A.I.R. 2486 (S.C.
1971)
……………………………………………………………………………………..10
108. Madhvan Pillai v. State of Kerala, A.I.R. 214 (Ker.
1966) ..........................................21
109. Maganbhai v. Union of India, A.I.R. 783 (S.C.
1969) ...................................................2
110. Maharashtra University of Health Sciences and Ors. v. Satchikitsa Prasarak Mandal
and Ors., 3 S.C.C. 786 (2010)
………………………………………………………………...12
111. Malpe Vishwanath Acharya v. State of Maharashtra, 2 S.C.C. 1 (1998)
……………...8
112. Maneka Gandhi v. Union of India, A.I.R. 597 (S.C. 1978) ………...……..3, 6, 11 &
12
113. Manish Kumar v. Union of India, S.C.C. Online S.C. 384 (2020)
…………………....20
114. Mardia Chemicals Ltd. v Union of India, 4 S.C.C. 311 (2004)
……………………......8
115. Matthews v. Ministry of Defence, 1 All ER 689 (2003), p
723…………………........11
116. MC Mehta v. Union of India, A.I.R. 1086 (S.C. 1987)
…………………………..........4
117. Minister for Immigration and Citizenship v. Li, 87 ALJR 618 (2013) ………......8 &
19
118. Modern Dental College Centre v. State of MP &Ors. , 7 S.C.C. 353 (2016)
……........11
xiii
119. Mohammed Ishaq v. S. Kazam Pasha, 1 S.C.C (Cri.) 721 (2009)

………………..........4
120. Mohini v. State of Karnataka , 3 S.C.C. 666 (1992) ……………………………..
……..3
121. Munn v. Illinois, 94 U.S. 113 (1877)
……………………………………………........12
122. Murthy Match Works and Ors. v. Assistant Collector of Central Excise and Anr. , 4
S.C.C. 428 (1974)
………………………………………………………………………....9
123. N.K. Bajpai v. Union of India and Another, 4 S.C.C. 653 (2012)
………………........11
124. Nagpur Improvement Trust and Anr. v. Vithal Rao , 1 S.C.C. 500 (1973) …........9 &
17
125. Nar Singh Pal v. UOI, 3 S.C.C. 589 (2000)
……………………………………............2
126. Naraindas v. State of Madhya Pradesh, A.I.R. 1232 (S.C. 1974)
…………………......8
127. Navtej Singh Johar v. Union of India , 10 S.C.C. 1 (2018) ………………….........6 &
9
128. NCT of Delhi v. Union of India and Others , S.C.C. OnLine 193 (2019)
…………....20
129. Netai Bag v. State of West Bengal, A.I.R. 3313 (S.C. 2000) …………………....8 &
21
130. Nilabati Behera v. State of Orissa , A.I.R. 1960 (S.C. 1993)
……………………..........4
131. O.P. Singla v. Union of India, 4 S.C.C. 450 (1984) …………………………….……
15
132. Occupational Health and Safety Association v. Union of India and Others , 3 S.C.C.
547 (2014)
………………………………………………………………………………….....12
133. Olga Tellis v. Bombay Municipal Corporation, A.I.R.180 (S.C. 1986) ...............2 &
11
xiv
134. Om Kumar v. Union of India, A.I.R. 3689 (S.C. 2000) ………………..……..3, 7 &
10
135. Om Prakash v. J&K, AS.C. 1001 (1981); D.D. Joshi v. Union, A.S.C. 420
(1983) .......6
136. P. Janardhan v. UOI, A.I.R. 171 (Mysore
1970) ..........................................................21
137. P. N. Kumar v. Municipal Corporation of Delhi , 4 S.C.C 609 (1987)
……………........4
138. Padma Sundara Rao v. State of Tamil Nadu , 255 I.T.R. 147 (S.C. 2002)
…………...16
139. Parashram Thakur Dass v. Ram Chand, A.I.R. 872 (S.C. 1982)
……………………...21
140. Pawan Dubey v. J.B.K. Developers, S.C.C. Online NCLT 794 (2018)
……………....24
141. Pioneer Urban Land and Infrastructure Ltd. and Anr. v. Union of India and Ors. , 8
S.C.C. 416 (2019) ………………………………………………………………......10 &
15
142. Pioneer Urban Land and Infrastructure Ltd. v. UOI, 8 S.C.C. 416 (2019), ¶
5…….......19
143. Prakash and Ors. v. Phulavati and Ors., 2 S.C.C. 36 (2016)
………………………....20
144. Prem Chand Garg v. Excise Commissioner , A.I.R. 1963 S.C. 996 (S.C. 1963)
………..3
145. Prem Shankar Shukla v. Delhi Admn. , 3 S.C.C. 526 (1980)
…………………….......11
146. Premjit Bhat v. Delhi Development Authority , A.I.R. 738 (S.C.
1980) ........................21
147. PUDR v. UOI, A.I.R. 1473 (S.C. 1982)
………………………………………….........1
148. Punjab Dairy Development Board v. Cepham Milk Specialities Ltd. , A.I.R. 4466
(S.C. 2004)
……………………………………………………………………………………....8
149. Purnendu Bikash Dhar v. Union of India (UOI) and Ors., 3 G.L.T. 19 (2000) ……....9
xv
150. R (JF) v. Secretary of State, 2 All ER 707 (U.K. S.C. 2010)

…………………….......11
151. R v. A, 3 All E.R. 1 (2001)
……………………………………………………….......11
152. R v. Home Secretary ex p Brind , 1 AC 696 (1991) ………………………….......8 &
19
153. R v. Secretary of State for Nottinghamshire CC, AC 240 at 249 (1986) ………..8 &
18
154. R v. Secretary of State for the Home Dept ex parte Daly , 3 All ER 433
(2001) ..........11
155. R v. Shayler, 2 All E.R. 477,498, 506
(2002) ...............................................................11
156. R. v. Chief Constable of International Trader's Ferry Ltd ., 1 All E.R. 129
(1999) .......10
157. R.D. Shetty v. International Airport Authority, 3 S.C.C. 489 (1979)
………………....8
158. R.S. Joshi v. Ajit Mills, Ahmedabad , A.I.R. 2279 (S.C. 1977)
………………............13
159. Raghunath Rai Bareja v. Punjab National Bank , 2 S.C.C. 230 (2007)
……………......6
160. Raichurmatham Prabhakar v. Rawatmal Dugar, A.I.R. 3625 (S.C. 2004)
…………....8
161. Rajbala v. State of Haryana, 2 S.C.C. 445 (2016)
…………………………………….7
162. Re, Special Courts Bill, 2 S.C.R. 476, 534-36 (1979)
………………………………...18
163. Romesh Thappar v. The State of Madras, A.I.R. 124 (S.C. 1950) …………….....3 &
4
164. Roop Chand v. State of Punjab, A.I.R. 1503 (S.C.
1963) ..............................................2
165. Royappa v. State of Tamil Nadu, A.I.R. 555 (S.C. 1974)
…………………………......6
xvi
166. Rustom Cavasjee Cooper v. Union of India . A.I.R. 564 (S.C. 1970)
…………….........1
167. S. Rangarajan v. Jagjivan Ram,2 S.C.C. 574 (1989)
……………………………........10
168. S.P Gupta v. UOI, A.I.R. 149 (S.C. 1982)
……………………………………….........1
169. S.R Bommai v. Union of India, 3 S.C.C. 2 (1994)
……………………………..............2
170. Sansar Chand Atri v. State of Punjab and Anr. , 4 S.C.C. 154 (2002) …….........18 &
19
171. Sarwan Singh and Anr. v. Kasturi Lal, 1 S.C.C. 750 (1977) …………………….……
17
172. Satwant Singh Sawhney v. D. Ramarathnam , A.I.R. 1836 (S.C. 1967) ........10, 12 &
18
173. Satyabrata Ghose v. Mugneeram Bangur and Co., S.C.R. 310 (1954)
……………....24
174. Saurabh Chandra v UOI, A.I.R. 361 (S.C. 2004)
…………………………………......11
175. Sharat Babu Digumarti v. Govt. of NCT of Delhi , S.C.C. 1592 (2016) ………………
17
176. Sharma Transport v State of A.P., 2 S.C.C. 188 (2002) ………………………….……
7
177. Shayara Bano v. Union of India, 9 S.C.C. 1 (2017) ..............................................9 &
19
178. Sheela Basse v. State of Maharashtra, 2 S.C.C 96 (1983)
………………………...........2
179. Shreya Singhal v. Union of India, 5 S.C.C. 1 (2015)
………………………………......9
180. Shri Ram Narain v. Simla Banking Co. Ltd. , A.I.R. 614 (S.C. 1956) …………...……
17
181. Siddharam Satlingappa Mhetre v. State of Maharashtra , 1 S.C.C. 694 (2011)
……....12
xvii
182. SMP Namrata Associates v. Mrs. Suvarna Santosh Nazrekar, 1 S.C.C. 522

(2020) ....23
183. Smt. Indira Nehru Gandhi v. Raj Narain , Supp. S.C.C. 1 (1975)
………………...........2
184. Smt. Nandini Satpathy v. P.L. Dani, A.I.R. 1025 (S.C. 1978) ………………....18 &
19
185. Soma Chakravorthy v. C.B.I., 5 S.C.C. 403, 411 (2007)
……………………………....6
186. SR Bommai v. Union of India, 3 S.C.C. 1 (1994)
……………………………………...5
187. Standard Chartered Bank v. Satish Kumar Gupta ,1 Comp L.J. 242 (2019)
…………....9
188. State of Bihar v. Shree Baidyanath Bhawan (P) Ltd. , 2 S.C.C. 762 at 783 (2005)
…....6
189. State of Bombay v. United motors Ltd., A.I.R. 252 (S.C. 1953) ……………….
……..3
190. State of Gujarat and Anr. v. Shree Ambica Mills Ltd. , 4 S.C.C. 656 (1974) ….….
…..18
191. State of Himachal Pradesh v. Narain Singh, 13 S.C.C. 165 (2009)
…………………....9
192. State of Jammu and Kashmir v. Triloki Nath Khosa and Ors. , 1 S.C.C. 19
(1974) .......9
193. State of Karnataka v. Karnataka Pawn Brokers Association , 6 S.C.C. 363 (2018) .
…..18
194. State of Kerela v. N.M. Thomas, 2 S.C.C. 310 (1976)
………………………………..18
195. State of Madhya Pradesh v. Hazarila, A.I.R. 1300 (S.C. 2008)
……………………......9
196. State of Madras v. V.G. Row, A.I.R. 196 (S.C. 1952)
……………………………........4
197. State of Punjab v. M.S. Chawla , A.I.R. 1225 (S.C. 1997)
………………………........11
xviii
198. State of Tamil Nadu v. Ananthi Ammal, 1 S.C.C. 519

(1995) .......................................8
199. State of U.P. v. Mata Tapeshwari Vidya Mandir, 1 S.C.C. 639 (2010) …………..
…..18
200. State of U.P. v. Renusagar Power Co., 4 S.C.C. 59 (1988)
………………………….....8
201. State of Uttar Pradesh v. Mohammad Nooh , A.I.R. 1958 S.C.
86………………..........4
202. State of West Bengal v. Union of India, A.I.R. 1241 (S.C. 1963) ………………...
…..15
203. State v. Nanga and Ors., A.I.R. 25 (Raj.
1951) ............................................................21
204. Style (Dress Land) v. Union Territory, Chandigarh, A.I.R. 3678 (S.C. 1999) ……...…
7
205. Subhash Mangla & Anr. v. M/S. M3M India Ltd. & Anr .,1 S.C.C. 325 (2019)
…......24
206. Subramanian Swamy v. Director, CBI and Anr. , 8 S.C.C. 682 (2014)
……………......9
207. Sudhaben Tamboli v. Ahmedabad Education and Anr., 2 G.L.H. 790 (2015)
………....8
208. Sukhdev and Ors v. Bhagat Ram and Ors ., A.I.R. 1331 (S.C. 1975), ¶
95…….............2
209. Sunil Batra v. Delhi Administration, A.I.R. 1675 (S.C. 1978)
……………………......12
210. Supreme Court Advocates on Record Association v. UOI, 5 S.C.C. 1 (2016)
…….......5
211. Suresh Chandra Sharma v. Chairman, A.I.R. 2021 (S.C. 2005) ………………...
……..3
212. SwarajInfrastructure (P) Ltd. v. Kotak Mahindra Bank Ltd. , 3 S.C.C. 620 (2019)
…..16
213. Swiss Ribbons v. Union of India, 4 S.C.C. 17 (2019) …………………….……6, 7,
22
xix
214. T.N. Godavarman Thirumulkpad v. UOI, 2 S.C.C. 267 (1997) ...…………...........1 &
3
215. Tilokchand Motichand v. H.B. Munshi, A.I.R. 898 (S.C. 1970)
……………………....3
216. Union of India and another v. G. Ganayutham, 7 S.C.C. 463 (1997)
………………....9
217. Union of India v. Vedem Vasco De Gama , A.I.R 981 (1990) …………………….
….16
218. Union of India v. Paul Manickam, A.I.R. 4622 (S.C. 2003)
……………………..........4
219. Union of India v. S.P.S. Vains and Ors., 12 S.C.ALE 360 (2008)
…………………...18
220. Union of India v. Tarsem Singh, 9 S.C.C. 304 (2019)
……………………………......9
221. V. Ramana v. A.P. SRTC and Others, 7 S.C.C. 338 (2005)
…………………………....9
222. Waman Rao v. Union of India, 2 S.C.C. 362 (1981)
……………………………...........2
223. Yick Wo v. Hopkins, 118 U.S. 356
(1886) .....................................................................5
ARTICLES AND JOURNALS
1. Ahmed, Remedy of Compensation under Article 32, LEGAL SERVICE INDIA (July 7
2020) https://www.legalservicesindia.com/article/2570/Remedy-of-Compensation-under-
Article-32.html
2. Prashanti, Compensatory Jurisprudence in India, LEGAL SERVICE INDIA (July 4
2020) http://www.legalservicesindia.com/article/2035/Compensatory-Jurisprudence In-
India.html
3. Megha Purohit, Mayank Purohit, An Analysis of Non-Refoulement In Indian Legal
Framework, Volume 2 JAMIA LAW JOURNAL 167 (2017).
xx
BOOKS
1. 1&2 M.P. JAIN, INDIAN CONSTITUTIONAL LAW: WITH CONSTITUTIONAL

DOCUMENTS (6th Edition, Lexis Nexis Butterworths Wadhwa Nagpur, 2010).
2. 1&2 DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA (AR Lakshmanan,
V.R. Manohar & Bhagabati Prosad Banerjee ed.,14th Edition, Lexis Nexis, 2009).
3. 1,2&3 SAMARADITYA PAL, INDIA’S CONSTITUTION ORIGINS AND
EVOLUTION (Lexis Nexis, 2014).
4. H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, (4TH Edition., Central Law
Publication, 1991).
5. J. BEATSON, A. BURROWS & J. CARTWRIGHT, ANSON’S LAW OF CONTRACT
(29th Edition, Oxford University Press, 2010).
6. MP JAIN, INDIAN CONSTITUTIONAL LAW (8th Edition., Lexis Nexis, 2018).
7. N S BINDRA, BINDRA’S INTERPRETATION OF STATUTES (M N Rao and Amita
Dhanda, 10th Edition, Lexis Nexis Butterworths, 2007).
8. MAMTA RAO, PUBLIC INTEREST LITIGATION (4th Edition, Eastern Book
company, 2015).
9. H.K SAHARAY, DUTT ON CONTRACT (11TH Edition, eastern law house, 2013).
10. V.S. WAHI, Treatise on Insolvency & Bankruptcy Code (3rd Edition, 2019).
11. PRANAV M KHATAVKAR, Insolvency and Bankruptcy Code, 2016 (Thomson
Reuters, Compilation of Select Judgement along with Executive Summaries).
12. DR. VK AGARWAL, Consumer Protection (Law and Practice (7th Edition, 2021).
13. Y.V. RAO, Commentary on the Consumer Protection Act, 1986 (4th Edition, 2017).
14. Taxman’s Insolvency and Bankruptcy Code 2016 – As amended by Insolvency &
Bankruptcy Code (Amendment) Ordinance 2019 (12th Edition, 2020).
15. SANJEEV KUMAR, Real Estate (Regulation and Development) Act, 2016 (1 st Edition,
2017).
16. Taman’s Guide to RERA with RERA Checklists (3rd Edition, 2017).
17. CA KAPIL GOYAL, Guide to Real Estate (Regulation & Development) Act, 2016 (1 st
Edition, 2019).
LEGAL DATABESES
xxi
1. www.scconline.com
2. www.manupatra.com
3. www.heinonline.com
4. www.jstor.com
5. www.lexisnexis.com
LEXICON
 Black’s Law Dictionary (9th edition, 2009)

 Oxford Dictionary of Law (2006)
STATEMENT OF JURISDICTION
The Hon’ble Supreme Court of India has the jurisdiction in this matter under Art. 32 of the
Constitution of India which reads as follows:
“32. Remedies for enforcement of rights conferred by this Part-
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
xxii
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.”
STATEMENT OF FACTS
Background of the Case
KAZA PORYO is a private limited company incorporated in India has earned the status of
being one of the most prominent and trustworthy real estate developers of India. In the year
2018 KAZA PORYO planned to expand their business on big levels. Consequently, they
initiated ten mega real estate projects in different parts of the country.
Due to unreasonable rules of real estate industry the interest of allottees were often hampered
so, to curb this issue, the Indian Government enacted a law, Real Estate (Regulation and
xxiii
Development) Act, 2016 (“RERA”), to defend the interests of the home buyers and make the
real estate developers liable for the delays in finishing the projects.
Conflict Arises
The KAZA PORYO project is started and the company is offering possession to the Allottees
who had made the pre investment. Mr. Ashok Prasad, one of the Allottee who has booked
one flat of approx value of Rs. one crore. He has paid pre instalments amount of Rs. Fifty
Lacs only thereafter he has to pay post instalments of Rs. Fifty Lacs and Mr. Ashok Prasad
defaulted in making the post payment of instalments. An agreement to Sale has also been
executed between the KAZA PORYO and Mr. Ashok Prasad detailing the terms and
conditions of the agreement. Therefore, an amount of post instalments along with interest and
penal interest become approx. Rs. Fifty-Five Lacs i.e., more than the current price of the flat
in question, therefore, Mr. Ashok Prasad is not attracted to take the possession of flat and
only fascinated to take refund of the amount invested by him therefore, Mr. Ashok prasad
had approached before the NCLT and filed a case against KAZA PORYO.
Contention Raised by Kaza Poryo
The KAZA PORYO has appeared before the NCLT and filed its reply and taken a
preliminary objection including the word Allottees. i.e., Allottees as a Financial Creditor is a
violation of Article 14 of Constitution of India. KAZA PORYO has also challenged the
validity of the Allottees, including Mr. Ashok Prasad as Financial Creditor before the
Supreme Court of India. The question of law arises before the Supreme Court of India and
now the matter is pending for hearing.
ISSUES FOR CONSIDERATION
ISSUE- 1
WHETHER THE WRIT PETITION FILED BY KAZA PORYO IS

MAINTAINABLE?
ISSUE- 2
xxiv
WHETHER THE WORD ALLOTTEES AS FINANCIAL CREDITOR IS

VIOLATIVE OF ARTICLE 14, 19, 21 AND 300-A OF CONSTITUTION OF INDIA?
ISSUE- 3
WHETHER THE RERA AND CONSUMER PROTECTION ACT ARE IN

CONFLICT?
ISSUE- 4
WHETHER THE WORD ALLOTTEES IS ARBITRARY WHICH IS MADE IN

RERA?
ISSUE- 5
WHETHER KAZA PORYO IS LIABLE TO REFUND THE AMOUNT INVESTED

BY MR. ASHOK?
SUMMARY OF ARGUEMENTS
[1.] WHETHER THE WRIT PETITION FILED BY KAZA PORYO IS

MAINTAINABLE?
It is humbly submitted before this Hon’ble Court that the instant writ petition is maintainable.
The Petitioner seeks to establish that; (A) The petitioner has a bona fide interest and hence
they have a locus standi, (B) There was violation of fundamental rights & there exists
substantial questions of law, (C) There is no requirement for the Petitioner to exhaust local
remedies as (i) The right under Art. 32 is not subject to exhaustion of local remedies and (ii)
xxv
Rule of exhaustion of local remedies is not binding on Hon'ble Court and (D) The Hon’ble
Court is “Sentinel on the Qui Vive”.
[2.] WHETHER THE WORD ALLOTTEES AS FINANCIAL CREDITOR IS

It is humbly submitted before this Hon’ble Court that the word Allottees as Financial
Creditor is in violation of Article 14, 19, 21 and 300-A of the Constitution. To that effect, the
Petitioner seeks to establish that; (A) It violates Principle of Equality which is Basic
Structure of Constitution, (B) It didn’t pass the prism of Article 14 of the Constitution, (C) It
is arbitrary and unreasonable as (i) It is Discriminatory and (ii) It didn’t pass the Wednesbury
Test, (D) It is in violation of Article 19 as (i) Restriction under Article 19 (6) is unreasonable,
(E) It is not in consonance with Article 21 of the Constitution as (i) It is in violation of
procedure established by law and (ii) It is a piece of Colourable Legislation and (F) It is in
violation of Article 300-A.
[3.] WHETHER THE RERA AND CONSUMER PROTECTION ACT ARE IN

CONFLICT?
It is humbly submitted before this Hon’ble Court that RERA Act, 2016 and Consumer
Protection Act, 2019 are in conflict with each other. The petitioner seeks to establish that;
(A) it defeats legislative intent for the enactment of RERA, (B) financial drain for the
promoter, if parallel remedies are available and (C) Special act should prevail over General
law.
[4.] WHETHER THE WORD ALLOTTEES IS ARBITRARY WHICH IS MADE IN

RERA?
It is humbly submitted before this Hon’ble Court that the word allottee is arbitrary under
RERA Act. The Petitioner seeks to establish that; (A) Under Inclusiveness and Over
Inclusiveness, (B) Classification is not justifiable as (i) It does not satisfy reasonable
classification test as (a) It is not in consonance with Doctrine of Proportionality and (C)
Purpose of act get defeated as (i) It is Constitutionally immoral, (ii) It is not based on
Doctrine of Legitimate Expectation (iii) It is Ultravires in nature.
[5.] WHETHER KAZA PORYO IS LIABLE TO REFUND THE AMOUNT

INVESTED BY MR. ASHOK?
xxvi
It is humbly submitted before this Hon’ble Court that Kaza Poryo is not liable to refund the
amount invested by Mr. Ashok. The petitioner seeks to establish that, (A) There is no
concealment of facts from the side of Kaza Poryo, (B) There is default of post- payment from
the side of allottees, (C) There was vitiation of contract from the side of the allottee.
xxvii
WRITTEN SUBMISSIONS
1. WHETHER THE WRIT PETITION FILED BY KAZA PORYO IS

MAINTAINABLE?
[¶1] It is humbly contended that the instant writ petition is maintainable. The Petitioner seeks
to establish that; (A) The petitioner has a bona fide interest and hence they have a locus
standi, (B) There was violation of fundamental rights & there exists substantial questions of
law, (C) There is no requirement for the Petitioner to exhaust local remedies as (i) The right
under Art. 32 is not subject to exhaustion of local remedies and (ii) Rule of exhaustion of
local remedies is not binding on Hon'ble Court and (D) The Hon’ble Court is “Sentinel on
the Qui Vive”.
(A) The petitioner has a locus standi
[¶2] This Hon'ble Court itself held that a writ petition by a public-spirited person on behalf
of a Section of society which complains of violation of FR is maintainable. 1 “Locus standi” is
right of party to appear and be heard on question before any tribunal.2 In other words, term
"locus standi" can be understood as legal capacity to challenge legislation, order or a
decision.3 Art. 32 confers one of highly cherished rights.4 In landmark cases5 the S.C. has
evolved a new rule viz., any member of the public, acting bona fide and having sufficient
interest can maintain an action for redressal of public wrong or public injury arising from
breach of public duty.
[¶3] If court finds question raised to be of substantial public interest, issue of locus standi of
person placing relevant facts and materials before court becomes irrelevant. 6 Following Bank
nationalisation7 and Bennet Coleman 8 cases SC in D.C. & G.M. v. UOI, 9 explicitly
mentioned that organization can file writ petitions for violation of fundamental rights. In
Common Cause v. Union of India,10 a Public Interest Litigation was filed seeking judicial
1
Bandhua Mukti Morcha v. Union of India, A.I.R. 802 (S.C. 1984).
2
Wharton’s Law Lexicon, 15th Edn. 2009, p.1019.
3
Ramchandran V.G., Law of Writs, 26 (6th Edition, 2006).
4
M.P. Jain, Indian Constitutional Law, Nagpur: Wadhwa and Company (2017) at p 703.
5
S.P Gupta v. UOI, A.I.R. 149 (S.C. 1982); PUDR v. UOI, A.I.R. 1473 (S.C. 1982).
6
T.N. Godavarman Thirumulkpad v. UOI, 2 S.C.C. 267 (1997).
7
Rustom Cavasjee Cooper v. Union of India. A.I.R. 564 (S.C. 1970).
8
Bennet Coleman v. UOI, A.I.R. 106 (S.C. 1973).
9
D.C. & G.M. v. Union of India, A.I.R. 1973 (S.C. 1983).
10
Common Cause v. Union of India, 6 S.C.C 552 (2014).
1
review of Government action alleged to be unreasonable and against public interest, was held
to be maintainable. The petitioner has sufficient interest to maintain a petition under Art. 32
as a member of the public because it is the right of public to be governed by laws made in
accordance with the Constitution and not laws made by the legislature in violation of the
constitutional provisions.11 The technique of writ serves to provide an effective remedy to
enforce group rights and interest.12 In instant case, Petitioner has locus standi as there exist
substantial question of law.
[¶4] To invoke the writ jurisdiction of the Supreme Court is not necessary that the
fundamental right must have been actually infringed even a threat to the same would be
sufficient.13 In M Janardhan Rao v. Joint Commissioner of Income Tax,14 it has been held that
facts and circumstances of case must contain substantial question of law for a petition to be
maintainable. Applying doctrine of ‘reasonable apprehension’, this Hon’ble Court may
interfere directly in said case. A Writ can be filed against State for violation of Fundamental
rights15 under Art. 32. Public Function is one which “seeks to achieve some collective benefit
for public”.16 Further under well-established doctrine of Parens Patriae, it is obligation of
State to protect and take into custody rights and privileges of its citizens for discharging its
obligations.17
(B) There was violation of FR and there exist Substantial Questions of Law
[¶5] Violation of FR is sine qua non of the exercise of the right conferred by Article 32. 18 It
is submitted that Part III which deals with “Fundamental rights” is regarded as the basic
structure of the Constitution.19 The doctrine of basic structure not only applies against the
amendments under the exercise of constituent power20 but also against exercise of
legislative21 and executive power.22 The fundamental rights are fundamental in sense that
11
D.C. Wadhwa v. State of Bihar, 1 S.C.C 378 (1987).
12
Sheela Basse v. State of Maharashtra, 2 S.C.C 96 (1983).
13
Roop Chand v. State of Punjab, A.I.R. 1503 (S.C. 1963); Maganbhai v. Union of India, A.I.R. 783 (S.C.
1969); D.A.V College v. State of Punjab, A.I.R. 1731 (S.C. 1971).
14
M Janardhan Rao v. Joint Commissioner of Income Tax, 2 S.C.C. 324 (2005).
15
Sukhdev and Ors v. Bhagat Ram and Ors., A.I.R. 1331 (S.C. 1975), ¶ 95.
16
Binny Ltd. And Anr. v. Sadasivan and Ors., A.I.R. 320 (S.C. 2005), ¶ 11.
17
Charan Lal Sahu v. Union of India, A.I.R. 1480 (S.C. 1990), ¶ 35.
18
Federation of Bar Association in Karnatka v. Union of India, A.I.R. 2544 (S.C. 2000).
19
I.R Colho v. State of Tamil Nadu, 7 S.C.C. 550 (1998).
20
Kesavananda Bharati v. State of Kerala, 4 S.C.C. 225 (1973); Smt. Indira Nehru Gandhi v. Raj Narain, Supp.
S.C.C. 1 (1975).
21
Waman Rao v. Union of India, 2 S.C.C. 362 (1981).
22
S.R Bommai v. Union of India, 3 S.C.C. 2 (1994).
2
human liberty is predicated on their availability and vice versa, and thus they cannot be
waived.23The facts and circumstances of case must disclose a substantial question of law for
petition to be maintainable.24
[¶6] In the instant case, there is violation of Art. 14, 15, 19 and 21 of the Constitution of
India. Further in order to establish violation of Article 21, the act should be subjected to the
equality test of Article 14 and test of reasonableness under Article 19. 25 Article 14 strikes at
arbitrariness because it negates equality 26 and permeates the entire fabric of Rule of Law. 27
Therefore, every action of State must be guided by reason for public good and not by whim,
caprice, and abuse of power.28 Article 19 provides that a restriction can be characterized to be
reasonable if it strikes a balance between the fundamental right and restriction imposed
thereon.29 Liberty of individual and protection of the FR are very essence of democratic way
of life adopted by constitution, and it is privilege and duty of this court to uphold those
rights.30 When the petitioner establishes infringement of his FR, the court has no discretion
but to issue an appropriate writ in his favor.31 In the instant case, there is substantial questions
of law involved.
(C) There is no requirement for the Petitioner to exhaust local remedies
(i) The right under Art. 32 is not subject to the exhaustion of local remedies
[¶7] Right to access to the Supreme Court under Article 32 is a fundamental Right itself. 32
Where there is well-founded allegation that fundamental right has been infringed alternative
remedy is no bar for entertaining writ petition and granting relief. 33 In Prem Chand Garg, it
was held that this right is absolute and may not be impaired on any ground. 34 The mere
existence of an adequate alternative legal remedy cannot be per se be a good and sufficient
ground for throwing out a petition under Art. 32 if the existence of a fundamental right and a
23
Basheshar Nah v. I.T. Commissioner, A.I.R. 149 (S.C. 1959); Olga Tellis v. Bombay Municipal Corporation,
A.I.R. 180 (S.C. 1986); Nar Singh Pal v. UOI, 3 S.C.C. 589 (2000).
24
M. Janardhan Rao v. Joint Commissioner of Income Tax, 2 S.C.C. 324 (2005).
25
Maneka Gandhi v. Union of India, A.I.R. 597 (S.C. 1978).
26
Suresh Chandra Sharma v. Chairman, A.I.R. 2021 (S.C. 2005).
27
Bachan Singh v. State of Punjab, A.I.R. 1325 (S.C. 1982).
28
Haryana Development Authority v. Dropadi Devi, 9 S.C.C. 514 (2005).
29
Om Kumar v. Union of India, A.I.R. 3689 (S.C. 2000).
30
Daryao v. State of UP, A.I.R. 1457 (S.C. 1967).
31
T.N. Godavarman Thirumulkpad v. UOI, 2 S.C.C. 267 (1997).
32
Bodhisattwa v. Subhra Chakraborty, A.I.R. 922, 926 (S.C. 1996); Common Cause: A Registered Society v.
UOI, A.I.R. 1999 S.C. at 3020 (S.C. 1999); Mohini v. State of Karnataka, 3 S.C.C. 666 (1992).
33
State of Bombay v. United motors Ltd., A.I.R. 252 (S.C. 1953).
34
Prem Chand Garg v. Excise Commissioner, A.I.R. 1963 S.C. 996 (S.C. 1963).
3
breach, actual or threatened, of such right and is alleged is prima facie established on the
petition.35 Further, unlike in Art. 226, remedy provided by Art. 32 is a fundamental right and
not merely a discretionary power of Court. 36 Exhaustion of local remedies is not mandatory. 37
In ABSK Sangh (Railway) v. Union of India,38 the Supreme Court overruled the objection that
an unrecognized association cannot file a petition under Article 32.
(ii) The rule of exhaustion of local remedies is not binding on this Hon'ble Court
[¶8] In Romesh Thappar v. State of Madras,39 the Supreme Court held that one can approach
directly to the Supreme Court without going to the High Court first whenever there is
violation of fundamental rights as Supreme Court is the “guarantor and protector of
Fundamental Rights”. This proposition has been reiterated by Supreme Court in number of
cases.40Admittedly, cases such as Paul Manickam,41Kanubhai,42and PN Kumar43require the
exhaustion of local remedies before approaching the Court under Art. 32. The Hon'ble court
must not be constrained by these decisions for following reasons: First, this self-imposed
restraint is merely a rule of convenience & discretion 44 and does not oust jurisdiction of this
Court under Art. 32.45Secondly, these cases are perincuriam as they were rendered in
ignorance of previous decisions by this Court that rejected such rule. Finally, Art. 32 (4)
specifically provides that this right may not be suspended except by a constitutional
provision.
[¶9] A rule of self-imposed restraint by the judiciary that requires exhaustion of local
remedies constitutes an extraconstitutional partial suspension and is unconstitutional. The
Constitutional obligation of this Hon'ble Court as the guarantor of fundamental rights has
been interpreted broadly46 and as one that exists independent of any other remedy that may be
available.47
35
K.K. Kouchunni v. State of Madras, A.I.R. 1959 S.C. 725 (S.C. 1959).
36
Daryao v. The State of Uttar Pradesh, A.I.R. 1457 (S.C. 1961); Tilokchand Motichand v. H.B. Munshi, A.I.R.
898 (S.C. 1970).
37
Kharak Singh v. State of Uttar Pradesh, A.I.R. 1295 (S.C. 1963); Romesh Thappar v. The State of Madras,
A.I.R. 124 (S.C. 1950).
38
ABSK Sangh (Railway) v. Union of India, 1 S.C.C 246 (1981).
39
Romesh Thappar v. State of Madras, S.C.R 594 (1950).
40
State of Madras v. VG Row, A.I.R. 196 (S.C. 1952).
41
Union of India v. Paul Manickam, A.I.R. 4622 (S.C. 2003).
42
Kanubhai Brahmbhatt v. State of Gujarat, A.I.R. 1159 (S.C. 1987).
43
P. N. Kumar v. Municipal Corporation of Delhi, 4 S.C.C 609 (1987).
44
State of Uttar Pradesh v. Mohammad Nooh, A.I.R. 1958 S.C. 86.
45
Mohammed Ishaq v. S. Kazam Pasha, 1 S.C.C (Cri.) 721 (2009).
46
MC Mehta v. Union of India, A.I.R. 1086 (S.C. 1987).
47
Nilabati Behera v. State of Orissa, A.I.R. 1960 (S.C. 1993).
4
(D) The Hon’ble Court is a “Sentinel on the Qui Vive”
[¶10] This Hon’ble Court has repeatedly assumed the role of the “sentinel on the qui vive” 48
to enforce fundamental rights of the people. It is humbly submitted that in light of the
prevailing circumstances which are continuously depriving the fundamental rights, the Court
has the constitutional duty and obligation49 to entertain this petition.
Hence, it is humbly submitted before this Hon’ble Court that the instant Writ Petition filed by
Kaza Poryo is maintainable.
2. WHETHER THE WORD ALLOTTEES AS FINANCIAL CREDITOR IS

[¶11] It is humbly contended that the word Allottees as Financial Creditor is in violation of
Article 14, 19, 21 and 300-A of the Constitution. To that effect, the Petitioner seeks to
establish that; (A) It violates Principle of Equality which is Basic Structure of Constitution,
(B) It didn’t pass the prism of Article 14 of the Constitution, (C) It is arbitrary and
unreasonable as (i) It is Discriminatory and (ii) It didn’t pass the Wednesbury Test, (D) It is
in violation of Article 19 as (i) Restriction under Article 19 (6) is unreasonable, (E) It is not
in consonance with Article 21 of the Constitution as (i) It is in violation of procedure
established by law and (ii) It is a piece of Colourable Legislation and (F) It is in violation of
Article 300-A.
(A) It violates Principle of Equality which is Basic Structure of Constitution
[¶12] Article 14 guarantee every person ‘equality before law’ and ‘equal protection of
laws.’50 Article 14 is based on Rule of Law and Equality before law. 51 Right to Equality is the
basic structure of the constitution52 and Parliament cannot transgress principle of Equality.53
This Hon’ble Court reiterated this view in SR Bommai v. Union of India54. The Hon’ble
Supreme Court has laid down the basic structure theory, which states that any law in
violation of the basic structure of the constitution is unconstitutional. In Supreme Court
48
State of Madras v. V.G. Row, A.I.R. 196 (S.C. 1952).
49
Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, 1 S.C.C. 98 (1980).
50
Himachal Road Transport Corporation v. Dinesh Kumar, 4 S.C.C. 560 (1996).
51
M. Nagaraj v. Union of India, 8 S.C.C. 212 (2006).
52
M.G. Badappanavar v. State of Karnataka, 2 S.C.C. 666 (2001)
53
Kesavananda Bharati v State of Kerala, 4 S.C.C. 225 (1973).
54
SR Bommai v. Union of India, 3 S.C.C. 1 (1994); Hindustan Aeronautics Ltd. v. A. Radhika Thirumalai, 6
S.C.C. 394 (1996).
5
Advocates on Record Association v. Union of India 55, it was observed by Hon’ble Justice
Khehar that for examining constitutional validity all the constitutional provisions, on the
basis of which “basic features” arise and even breach of a single provision is sufficient to
render legislation as unconstitutional.
[¶13] It was stated by Supreme Court in Kathi Raning Rawat v. State of Saurashtra56 that the
term 'discrimination' has been understood to mean to have an element of unfavourable bias.
In Yick Wo v. Hopkins,57 the Hon'ble Supreme Court held that when an act, even though fair,
is administered by public authorities in an “unequal” and “oppressive manner” amounts to a
denial of equal protection of law to the people by the state. In order to ascertain whether a
person is a financial creditor or operational debt, he should fall within the definition of a
financial debt or operational debt.58 In Raghunath Rai Bareja v. Punjab National Bank 59 SC
held that when statue is unambiguous and unclear literal meaning of the statute is the only
source of interpretation. Further, it was in the case of Swiss Ribbons Pvt. Ltd. And Ors. v.
Union of India and Ors.60 the division bench of the Supreme Court of India decided the
constitutional validity of the distinction between the operational and financial creditor in the
insolvency and bankruptcy code, 2016. The principal argument of petitioner was that there
was no “intelligible differentia” between the creditors and hence the distinction was
discriminatory in nature.
(B) It didn’t pass the prism of Article 14 of the Constitution
[¶14] A 3-judge bench of this Hon’ble Court in Glanrock Estate (P) Ltd. v. State of T.N.61 has
held that: “Para 37. The doctrine of classification under Art. 14 has several facets …
Equality is a comparative concept. A person is treated unequally only if that person is treated
worse than others, and those others (the comparison group) must be those who are “similarly
situated” to the complainant….” The SC in Dalmia case62and Navtej Singh Johar v. Union of
India63 points out that reasonable classification must satisfy two conditions; (1) it must be
55
Supreme Court Advocates on Record Association v. Union of India, 5 S.C.C. 1 (2016).
56
Kathi Raning Rawat v. State of Saurashtra, S.C.C. 123 (1952).
57
Yick Wo v. Hopkins, 118 U.S. 356 (1886); Deepak Sibal & Ors. v. Punjab University, S.C.C. 903 (1989).
58
Insolvency and Bankruptcy Code, 2016, s. 5 ss. 7, 8, 20, 21.
59
Raghunath Rai Bareja v. Punjab National Bank, 2 S.C.C. 230 (2007).
60
Swiss Ribbons Pvt. Ltd. And Ors. v. Union of India and Ors., A.I.R. 739 (S.C. 2019).
61
Glanrock Estate (P) Ltd. v. State of T.N., 10 S.C.C. 96 (2010) at page 111.
62
Dalmia case; S.I.S. Mills Assn. v. Union, AAP. 75, 81-82 (1972); State of Bihar v. Shree Baidyanath
Ayurved Bhawan (P) Ltd., 2 S.C.C. 762 at 783 (2005); Karnataka Live Band Restaurants Assn. v. State of
Karnataka, 4 S.C.C. 372 at 393 (2018).
63
Navtej Singh Johar v. Union of India, 10 S.C.C. 1 (2018).
6
founded on an intelligible differentia which distinguishes persons or things that are grouped
together from others left out of the group and (2) differentia must have a rational relation to
the object sought to be achieved by the statute in question.64 In Kangshari Haldar v. State of
West Bengal wherein Gajendragadkar, J. has held that if either of two criteria are not satisfied
then act is liable to be struck down as unconstitutional. 65 In Royappa v. State of Tamil Nadu66
and Maneka Gandhi v. Union of India 67 where Courts have held that Art. 14 strikes at
arbitrariness68 in state action and ensures fairness and equality of treatment. In instant case,
treatment of allottees as financial creditors violates two facets of Article 14. One, that it is
discriminatory in as much as it treats unequal’s equally, and equals unequally, having no
intelligible differentia; and two, that there is no nexus with the objects sought to be achieved
by Code.
(C) It is arbitrary and unreasonable
[¶15] The Principle of classification under Art. 14 has been subject of deliberation in a
catena of cases.69 No action of State should be of arbitrary and irrational nature which
distinguishes among Individuals.70 Bhagwati J in Bachchan Singh v. State of Punjab71, Rule
of law which permeates entire fabric of Indian Constitution exclude arbitrariness. While
Article 14 forbids class legislation, it does not forbid reasonable classification. 72
Classification must not be arbitrary but scientific, and rest upon real and substantial
distinction73 between those covered and those left out.74 In Rajbala v. State of Haryana,75 it
has rejuvenated debate on content and scope of doctrine of arbitrariness 76 propounded by
apex court in famous Royappa case.77 In Innoventive Industries Limited v. ICICI Bank and
64
Anwar Ali Sarkar v. The State of West Bengal, S.C.R. at pp 340-41 (1952); Om Prakash v. J&K, AS.C. 1001
(1981); D.D. Joshi v. Union, AS.C. 420 (1983).
65
Kangshari Haldar v. State of West Bengal, A.I.R. 457 (S.C. 1960).
66
Royappa v. State of Tamil Nadu, A.I.R. 555 (S.C. 1974).
67
68
Bachan Singh v. State of Punjab, A.I.R. 1336 (S.C. 1982); Soma Chakravorthy v. C.B.I., 5 S.C.C. 403, 411
(2007)
69
Budhan Choudhary & Ors. v. The State of Bihar, A.I.R. 191 (S.C. 1955).
70
Om Kumar v. Union of India, 2 S.C.C. 386 (2001).
71
Bachan Singh v. State of Punjab, A.I.R. 1336 (S.C. 1982); See also, Style (Dress Land) v Union Territory,
Chandigarh, A.I.R. 3678 (S.C. 1999); Dolly Chanda v. Chairman, A.I.R. 5043 (S.C. 2004); Haryana Urban
Development Authority v Dropadi Devi, A.I.R. 1487 (S.C. 2005).
72
D.S. Nakara v. Union of India, 1 S.C.C. 305 (1983).
73
Anuj Garg v. Hotel Association of India, 3 S.C.C. 1 (2008).
74
Kartar Singh v. State of Punjab, 3 S.C.C. 569 (1994).
75
Rajbala v. State of Haryana, 2 S.C.C. 445 (2016); Sharma Transport v State of A.P., 2 S.C.C. 188 (2002).
76
Ajay Hasia v. Khalid Mujib Sehravardi, 1 S.C.C. 722 (1981).
77
E.P. Royappa v. State of Tamil Nadu, 4 S.C.C. 3 (1974).
7
Anr.,78 this Court elaborately analysed the scheme of Code and distinction between the
financial creditors and the operational creditors.
[¶16] Swiss Ribbons v. Union of India,79 in copious detail, in order to drive home the point
that not a single one of several characteristics of financial creditors stated in that judgment
would apply to allottees/home buyers. In Casu, it is argued that it would be wholly arbitrary
to include allottees as financial creditors when, in fact, they possess none of the
characteristics pointed out in Swiss Ribbons of banks and financial institutions. In instant
case, by treating allottees as financial creditors vis-à-vis real estate developers, it is claimed
that it violated Art. 14. The concept of reasonableness and non- arbitrariness pervades entire
constitutional scheme and is a golden thread which runs through the whole of the fabric of
the Constitution.80 It is not necessary that every rational decision is reasonable, 81 it may
unreasonable because unreasonable means devoid of satisfactory reasons.82
[¶17] In R.D. Shetty v International Airport Authority, 83 it was held that reasonableness and
rationality is an essential element of equality or non-arbitrariness protected by Art. 14.’ A
Division Bench of the Hon’ble Gujarat High Court in case Sudhaben B. Tamboli Versus
Ahmedabad Education Society and Anr.,84 has laid down that while interpreting the
provisione very word should be given its importance and meaning and any interpretation
which leaves any part of the statute redundant must be avoided. If there is arbitrariness or
unreasonableness in state action court strike down such action or statute. 85 Arbitrariness is
antithesis of Art. 14.86 Equality and arbitrariness are sworn enemies.87
78
Innoventive Industries Limited v. ICICI Bank and Anr., 1 S.C.C. 407 (2018).
79
Swiss Ribbons v. Union of India, 4 S.C.C. 17 (2019).
80
Ajay Hasia v Khalid Mujib Sehravardi, 1 S.C.C. 722 (1981); EP Royappa v State of TN, 4 S.C.C. 3 (1974).
81
Airo-Farulla, ‘Reasonableness, Rationality and Proportionality’ in Matthew Groves and HP Lee (eds),
Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007).
82
R v. Secretary of State for the Environment ex p Nottinghamshire CC, AC 240 at 249 (1986); R v. Home
Secretary ex p Brind, 1 AC 696 (1991). See also, Minister for Immigration and Citizenship v. Li, 87 ALJR 618
(2013).
83
R.D. Shetty v. International Airport Authority, 3 S.C.C. 489 (1979); In Maneka Gandhi v. Union of India, 1
S.C.C. 248 (1978) it was held that, ‘[T]he principle of reasonableness, which legally as well as philosophically,
is an essential element of equality or non-arbitrariness pervades article 14 like a brooding omnipresence.’
84
Sudhaben B. Tamboli Versus Ahmedabad Education Society and Anr., 2 G.L.H. 790 (2015).
85
State of U.P. v. Renusagar Power Co., 4 S.C.C. 59 (1988); State of Tamil Nadu v. Ananthi Ammal, 1 S.C.C.
519 (1995); Malpe Vishwanath Acharya v. State of Maharashtra, 2 S.C.C. 1 (1998); Mardia Chemicals Ltd. v
Union of India, 4 S.C.C. 311 (2004).
86
Netai Bag v. State of West Bengal, A.I.R. 3313 (S.C. 2000).
87
Jain (n 6); See Russel Hardin, Constitutionalism in the Oxford Handbook of Political Economy (Donald A.
Wittman & Barry R. Weingast Ed., 2008) 289; Andreas Sajo, Limiting Government: An Introduction to
Constitutionalism (CEUP 1999) 12.
8
(i) It is Discriminatory
[¶18] The key difference between ‘arbitrary’ and ‘discriminatory’ is that former does not
need a comparator whereas latter does.88 Article 14 strikes at arbitrary and discriminatory
state action to ensure equality.89 Unbridled discretionary power may degenerate into
arbitrariness, or may result in discrimination and contravenes Art. 14 which bars
discrimination.90 This Court recognized that the deposit-holders and security-holders form a
sub-class/class of financial creditors, who are treated a little differently, on account of sheer
number of such creditors coupled with the heterogeneity within the group that may cause
difficulties in the decision-making process.91 State action is not arbitrary if it is to pass muster
in a court of law.92 It falls foul of Art. 14 if it found vague. 93 There is principle that object
itself cannot be discriminate.94
[¶19] The SC finally settled question of parity between financial creditors and operational
creditors in Essar Steel case,95 by overruling July 2019 decision of NCLAT, 96 which held that
financial creditors and operational creditors cannot be treated in a discriminatory manner by
CoC. A proviso cannot override the main provision. 97 Shri Shyam Divan relying upon
Nagpur Improvement Trust and Anr. v. Vithal Rao and Ors.,98 and Subramanian Swamy v.
Director, Central Bureau of Investigation and Anr.,99 argued that the object is itself
88
Tarunabh Khaitan, Equality, first page, cited page in The Oxford Handbook of the Indian Constitution,
(Madhav Khosla).
89
Naraindas v. State of Madhya Pradesh, A.I.R. 1232 (S.C. 1974); See also, District Registrar and Collector v.
Canara Bank, A.I.R. 186 (S.C. 2005); Punjab Dairy Development Board v. Cepham Milk Specialities Ltd.,
A.I.R. 4466 (S.C. 2004); Kishan Lal Lakhmi Chand v. State of Orissa, 4 S.C.C. 461 (1993); Raichurmatham
Prabhakar v. Rawatmal Dugar, A.I.R. 3625 (S.C. 2004).
90
District Registrar and Collector v. Canara Bank, A.I.R. 186 (S.C. 2005).
91
Ameerunnissa Begum and Ors. v. Mahboob Begum and Ors., S.C.R. 404 (1953); State of Jammu and
Kashmir v. Triloki Nath Khosa and Ors., 1 S.C.C. 19 (1974); Murthy Match Works and Ors. v. Assistant
Collector of Central Excise and Anr., 4 S.C.C. 428 (1974); Ajoy Kumar Banerjee and Ors. v. Union of India
and Ors., 3 S.C.C. 127 (1984); Ashutosh Gupta v. State of Rajasthan and Ors., 4 S.C.C. 34 (2002).
92
Shayara Bano v. Union of India, 9 S.C.C. 1 (2017); Indian Express Newspapers (Bombay) (P) Ltd. v. Union
of India, 1 S.C.C. 641 (1985); Navtej Singh Johar and Ors. v. Union of India and Ors., 10 S.C.C. 1 (2018);
Joseph Shine v. Union of India, 3 S.C.C. 39 (2019); Justice K.S. Puttuswamy and Ors. v. Union of India and
Ors., 10 S.C.C. 1 (2017); Hindustan Construction Co. Ltd. and Ors. v. Union of India and Ors., A.I.R. 122 (S.C.
2020).
93
Shreya Singhal v. Union of India, 5 S.C.C. 1 (2015); K. Nagaraj and Ors. v. State of Andhra Pradesh and
Anr., 1 S.C.C. 523 (1985); State of Himachal Pradesh v. Narain Singh, 13 S.C.C. 165 (2009).
94
Union of India v. Tarsem Singh, 9 S.C.C. 304 (2019).
95
Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta and Ors., S.C.C. 1478 (2019).
96
Standard Chartered Bank v. Satish Kumar Gupta,1 Comp L.J. 242 (2019).
97
Delhi Metro Rail Corporation Ltd. v. Tarun Pal Singh and Ors., 14 S.C.C. 161 (2018).
98
Nagpur Improvement Trust and Anr. v. Vithal Rao and Ors., 1 S.C.C. 500 (1973) at paragraph 26.
99
Subramanian Swamy v. Director, Central Bureau of Investigation and Anr., 8 S.C.C. 682 (2014) at
paragraphs 44, 58 and 68.
9
discriminatory in that it seeks to insert into a "means and includes" definition a category
which does not fit therein, namely, real estate developers who do not, in the classical sense,
borrow monies like banks and financial institutions. In instant case, threshold is thrust upon
only on home buyer and is not applicable across board for other financial creditors, so, it is
Discriminatory.
(ii) It didn’t pass the Wednesbury test
[¶20] In the case of Associated Provincial Pictures houses ltd v. Wednesbury Corp., 100 it was
clearly stated that to judge the validity of any administrative order or statutory discretion,
normally Wednesbury test is to be applied. Court would also consider whether decision was
absurd or perverse.101 Wednesbury principle of unreasonableness has been displaced by the
doctrine of proportionality.102 In Om Kumar v. Union of India,103 the SC traced history of
principle of proportionality, and noticed decision of the House of Lords in R. v. Chief
Constable of Success ex.p. International Trader's Ferry Ltd., 104 wherein principles of
Wednesbury and proportionality were almost equated and held that where decision of an
administrative authority is attacked being arbitrary, the principle of secondary review will
have to be kept in mind.105
[¶21] Wednesbury test states that a policy or an enactment can be stated to be arbitrary, if it
is unreasonable.106 Act was arbitrary as if policy and discretion are unguided, then discretion
can be held to be arbitrary.107 In Casu, this Court in its decision in Pioneer Urban Land and
Infrastructure Ltd. and Anr. v. UOI and Ors.,108 has elaborately dealt with the apprehension
that allowing home buyers like the Petitioners who finance the builder's activities to invoke
the CIRP process will lead to misuse of the provisions and allayed the unfounded fears.
(D) It is in violation of Article 19
100
Associated Provincial Pictures houses ltd v. Wednesbury Corp., 1 K.B. 223 (1948); Union of India and
another v. G. Ganayutham, 7 S.C.C. 463 (1997); Purnendu Bikash Dhar vs. Union of India (UOI) and Ors., 3
G.L.T. 19 (2000); V. Ramana v. A.P. SRTC and Others, 7 S.C.C. 338 (2005).
101
Union of India and another v. G. Ganayutham, 7 S.C.C. 463 (1997), ¶ 1.
102
State of Madhya Pradesh v Hazarila, A.I.R. 1300 (S.C. 2008).
103
Om Kumar v. Union of India, A.I.R. 3689 (S.C. 2000).
104
R. v. Chief Constable of Success ex.p. International Trader's Ferry Ltd., 1 All E.R. 129 (1999).
105
Life Insurance Corporation of India v. General Secretary and Ors., IILLJ 317 Guj. (2012), ¶ 27.
106
Associated Provincial Picture Houses Ltd. v. Wednesbury Corp., 1 K.B. 223 (1948).
107
Satwant Singh Sawhney v. D. Ramarathnam and Ors., A.I.R. 1836 (S.C. 1967).
108
Pioneer Urban Land and Infrastructure Ltd. and Anr. v. Union of India and Ors., 8 S.C.C. 416 (2019).
10
[¶22] Our commitment of freedom of expression demands that it cannot be suppressed unless
situations created by allowing freedom are pressing and community interest is endangered 109.
The reasonableness of restraint would have to judge by magnitude of evil it seeks to restrain,
curb or eliminate.110 The nature of right alleged to have been infringed, underlying purpose of
restrictions imposed, extent and urgency of evil sought to be remedied thereby, disproportion
of imposition and prevailing conditions at the time, should all enter into judicial verdict. 111 It
is necessary to see whether a class which comes into contact with such knowledge suffer in
their moral outlook or might have impure or lecherous thoughts aroused in their minds.112
(i) Restriction under Article 19 (6) is unreasonable
[¶23] It is the foremost duty of the state to ensure security and protect the citizens- their
lives, limbs and property.113 For a law to be called proportionate, it must pass all the four
stages i.e., Legitimate goal stage, suitability or rational connection stage, necessity stage,
balancing stage in the test of proportionality.114 While undertaking the exercise of balancing,
which is the fourth stage inquiry should be conducted by the Court at the balancing stage. 115
But the spirit of the principle may be applied in appropriate cases.116 It is well settled that
proportionality involves balancing test and necessity test. The former scrutinizes
infringement of rights, the latter requires infringement of human rights to the least restrictive
alternative.117
[¶24] Judgment on proportionality must always involve striking of a fair balance between the
rights of the individual and the interests of the community. 118 In the case of N.K. Bajpai v.
UOI and Another,119 it was argued that a person shall not be entitled to appear before
109
S. Rangarajan v. Jagjivan Ram, 2 S.C.C. 574 (1989).
110
Collector of Customs v. Sampathu Chettty, A.I.R. 316 (S.C. 1963)
111
Harakchand v. UOI, A.I.R. 1453 (S.C. 1970); Chintamani Rao v. State of M.P., A.I.R. 118 (S.C. 1951).
112
Chandrakant Kalyandas Kakodkar v. State of Maharashtra, A.I.R. 1970 S.C. 1390 (S.C. 1970).
113
Madhu Limaye v. Sub-Divisional Magistrate, Monghgyr & Ors., A.I.R. 2486 (S.C. 1971).
114
Modern Dental College & Research Centre v. State of MP & Ors., 7 S.C.C. 353 (2016).
115
K S Puttaswamy v. Union of India, 1 S.C.C. 1 (2019).
116
Saurabh Chandra v UOI, A.I.R. 361 (S.C. 2004).
117
Coimbatore District Central Co-op Bank v. Coimbatore District Central Co-op Bank Employees Assn , 4
S.C.C. 669 (2007). It has also been held in the case of De Fruitas v. Permanent Secretary of Ministry of
Agriculture, Fisheries and Housing, 1 AC 69 (1999), p 80 that, ‘[T]he principle of proportionality requires the
court to apply a three stage test: (1) whether the objective sought to be achieved is relevant and sufficiently
important to justify limiting the fundamental rights; (2) whether the means chosen to limit that right are rational
fair and not arbitrary, and (3) whether the means used impair the right as minimally as reasonably possible’.; R
v. Shayler, 2 All E.R. 477,498, 506 (2002); R v. A, 3 All E.R. 1 (2001); R v. Secretary of State for the Home
Dept ex parte Daly, 3 All ER 433 (2001); Matthews v. Ministry of Defence, 1 All ER 689 (2003), p 723.
118
Huang v. Secretary of State for the Home Dept, 4 All ER 15 (2007) para 19 p 29; R (JF) v. Secretary of
State, 2 All ER 707 (U.K. S.C. 2010) para 7 (Lord Phillips President).
119
N.K. Bajpai v. Union of India and Another, 4 S.C.C. 653 (2012).
11
Customs, Excise and Service Tax Appellate Tribunal, on the ground that it is violates
Articles 14, 19 (1) (g) and 21. In para-12, the Apex Court held that “......... If restriction is not
able to satisfy these tests or either of them, it will vitiate law so enacted and action taken in
furtherance thereto is unconstitutional....” In Casu, in instant case, restriction under Art. 19
(6) is unreasonable.
(E) It is not in consonance with Article 21 of the Constitution
[¶25] Right to life includes the right to live with human dignity 120 and all that goes along
with it.121 Right to life includes within itself right to dignified life 122, right to healthy life123,
right to livelihood124, right to social security and protection of family 125etc. The Supreme
Court gave a new dimension to Art. 21 and held that the right to live is not merely a physical
right but includes within its ambit the right to live with human dignity.126 The leading opinion
of DY Chandrachud, J., in K.S. Puttaswamy v. Union of India,127 holds inter alia: “…. Article
14, as a guarantee against arbitrariness, infuses the entirety of Article 21. A law within the
meaning of Article 21 must be consistent with the norms of fairness which originate in
Article 14.
[¶26] Right to life is one of the basic human rights and not even the State has the authority to
violate that right.128 Our Constitution assured the dignity of the individual 129 and right to
Health130 is an integral component of the right to live with dignity. 131 A person cannot be
deprived of his liberty by a law which is nebulous and uncertain in its definition and
application.132 In Bandhua Mukti Morcha v. Union of India133, court observed that “it is the
fundamental right of everyone in this country, assured under the interpretation given to
120
Prem Shankar Shukla v. Delhi Admn., 3 S.C.C. 526 (1980).
121
Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Others, 1 S.C.C. 608 (1981).
122
123
State of Punjab v. M.S. Chawla, A.I.R. 1225 (S.C. 1997).
124
Board of Trustees of the Port of Bombay v. Dilip kumar Raghavendranath Nandkarni, A.I.R. 109 (S.C.
1983); Olga Tellis v. Bombay Municipal Corporation, A.I.R. 180 (S.C. 1986).
125
Calcutta Electricity Supply Corporation. Ltd. v. Subhash Chandra Bose, 1 L.L.N. 353 (1992).
126
Francis Coralie v. Union Territory of Delhi, A.I.R. 746 (S.C. 1981); Chandra Raja Kumar v. Police
Commissioner Hyderabad, A.I.R. 302 (A.P. 1998); Chairman, Railway Board v. Chandrima Das, A.I.R. 998
(S.C. 2000).
127
K.S. Puttaswamy v. Union of India, 10 S.C.C. 1 (2017).
128
Siddharam Satlingappa Mhetre v. State of Maharashtra, 1 S.C.C. 694 (2011).
129
Kharak Singh v. State of U.P., A.I.R. 1295 (S.C. 1963).
130
Maharashtra University of Health Sciences and Ors. v. Satchikitsa Prasarak Mandal and Ors., 3 S.C.C. 786
(2010); Sunil Batra v. Delhi Administration, A.I.R. 1675 (S.C. 1978).
131
Burrabazar Fire Works Dealers Association and Ors. v. Commissioner of Police, Calcutta, A.I.R. 121 (Cal.
1998).
132
A.K. Roy v. Union of India, 1 S.C.C. 271 (1982).
133
Bandhua Mukti Morcha v. Union of India, 3 S.C.C. 161 (1984).
12
Article 21 by this court in Francis Coralie Mullin v. Administrator, Union Territory of

Delhi134 to live with human dignity, free from exploitation. Every state has an obligation and
duty to provide at least minimum conditions ensuring human dignity.135
(i) It is in violation of procedure established by law
[¶27] In Menaka Gandhi v. UOI136 SC observed that procedure prescribed by law for
depriving a person of his life and personal liberty must be “right, just and fair” 137 and not
“arbitrary, fanciful and oppressive”138, otherwise it would be no procedure at all and the
requirement of Article 21 would not be satisfied. Right to life means something more is
meant than mere animal existence.139 In Arguendo, SC has embraced the qualitative concept
into article 21 when it held that the right to life with human dignity encompasses within its
fold, some of the finer facets of human civilization which make the life worth living. 140 In
A.K. Gopalan v State of Madras141 that, ‘[T]he word ‘law’ in Article 21 does not mean
merely enacted law but incorporates principles of natural justice so that a law to derive a
person of his life or personal liberty cannot be valid unless it incorporates these principles in
the procedure laid down by it.
(ii) It is a piece of Colourable Legislation
[¶28] It is submitted that colourable legislation means what cannot be done directly cannot
be done indirectly. This doctrine doesn’t take into consideration mala fide or bona fide
intention on the part of the legislation. 142 It has been held by the hon’ble court in the case of
K.C. Gajapati Narayana Deo v. State of Orissa 143 that the legislature has to legislate under
the limits of its constitutional powers. It cannot transgress the powers indirectly or directly.
(F) It is in violation of Article 300-A
134
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, 1 S.C.C. 608 (1981).
135
Occupational Health and Safety Association v. Union of India and Others, 3 S.C.C. 547 (2014).
136
Menaka Gandhi v. Union of India, S.C.C. 597 (1978).
137
Indrajit Barua v. The State of Assam and Ors., A.I.R. 513 (Del. 1983).
138
Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer and Ors., 3 S.C.R. 525 (1967).
139
Munn v. Illinois, 94 U.S. 113 (1877).
140
Consumer Education and Research Centre v. Union of India, 3 S.C.C. 42 (1995).
141
A.K. Gopalan v. State of Madras, A.I.R. 27 (S.C. 1950).
142
R.S. Joshi v. Ajit Mills, Ahmedabad, A.I.R. 2279 (S.C. 1977).
143
K.C. Gajapati Narayana Deo v. State of Orissa, A.I.R. 375 (S.C. 1953); Gullapalli Negeswara Rao v. A.P.
State R.T.C., A.I.R. 308, 316 (S.C. 1959); K. Kunhikoman v. State of Kerala, A.I.R. 23 (S.C. 1962);
Jayvantsinghji v. State of Gujarat, A.I.R. 821 (S.C. 1962); Jalan Trading Co v. Mill Mazdoor Sabha, A.I.R. 691
(S.C. 1967); Jabalpur Bus Operators’ Ass. v. Union of India, A.I.R. 62 (M.P. 1994).
13
[¶29] The word Allottees violates Art. 19 (1) (g) and 300-A as in case of a real estate
developer who completes projects on time and never defaults, can be removed or replaced by
somebody if a single allottee manages to obtain an insolvency order from NCLT. It is against
UNCITRAL Legislative Guide on Insolvency Law as difference between financial creditor
and operational creditor was ignored.
[¶30] A home for a family is a basic human yearning. In diverse contexts, it has been held by
in M/s Shantistar Builders v. Narayan Khimalal Totame,144 that same is part of right to life,
as a fundamental constitutional guarantee. This has also been recognized by in para 25, page
16 in Chitra Sharma and Ors. v. Union of India and Ors.145 and Bikramjit Chatterji and Ors.
v. Union of India.146 Hence, the present legislation when denies Home Buyers their right of
approaching NCLT, actually denies them accessing their Fundamental Rights. Based on the
judgment in the case of K. T. Plantation Private Limited and Anr. v. State of Karnataka,147 it
was submitted RERA are contrary to Article 300-A as provisions divest promoters from their
right to enjoy peaceful possession of their property and, therefore, they are arbitrary in
nature. In the instant case, the word Allottees as Financial Creditor doesn’t violate Art. 300-
A as there is rational nexus present in treating Allottees as Financial Creditor under the code.
Hence, it is humbly submitted before this Hon’ble Court that the word Allottees as Financial
Creditor is not in consonance with Article 14, 19, 21 and 300-A of the Constitution of India.
3. WHETHER THE RERA AND CONSUMER PROTECTION ACT ARE IN

CONFLICT?
[¶31] It is humbly contended that RERA Act, 2016 and Consumer Protection Act, 2019 are
in conflict with each other. The petitioner seeks to establish that; (A) it defeats legislative
intent for the enactment of RERA, (B) financial drain for the promoter, if parallel remedies
are available and (C) Special act should prevail over General law.
(A) It defeats legislative intent for the enactment of RERA
[¶32] The legislative background demonstrates the concern of the policy makers that the
unregulated growth of the real estate sector, accompanied by a lack of professionalism and
standardization, had resulted in serious hardship to consumers. The real estate sector is of
144
M/s Shantistar Builders v. Narayan Khimalal Totame, 1 S.C.C. 520 (1990).
145
Chitra Sharma and Ors. v. Union of India and Ors., 144 S.C.L 1 (2017).
146
Bikramjit Chatterji and Ors. v. Union of India, 9 S.C.ALE 588 (2019).
147
K. T. Plantation Private Limited and Anr. v. State of Karnataka, A.I.R. 1461 (S.C. 1973).
14
crucial significance to meet the demand for housing in the country. While remedies were
provided to consumers by the Consumer Protection Act, 1986, this recourse was "curative"
and did not assuage all the concerns of buyers on the one hand and promoters on the other
hand in the sector.148 The lack of standardisation has been a constraint to the healthy and
orderly growth of industry. Therefore, the need for regulating sector has been emphasised in
various forums. Mere right to take advantage of a statute is not a vested right. 149 Once the
RERA Act came into force, all questions concerning the Project including issues relating to
construction and completion thereof, would be under exclusive control and jurisdiction of the
authorities under the RERA Act. The Commission, therefore, ought not to have entertained
the Consumer Cases.
[¶33] The Real Estate (Regulation and Development) Act, 2016 are in the interests of
effective consumer protection, uniformity and standardization of business practices and
transactions in the real estate sector. For regulation and promotion of real estate sector and to
ensure sale of plot, apartment or building, as the case may be, in an efficient and transparent
manner and to protect the interest of consumers in real estate sector and establish the Real
Estate Appellate Tribunal to hear appeals from the decisions, directions or orders of the
Authority. It will ensure greater accountability towards consumers, and significantly reduce
frauds and delays as also the current high transaction costs. It will induct professionalism and
standardization in the sector, thus paving the way for accelerated growth and investments in
long run. The legislature is best judge of what is good for the community, by whose suffrage
it comes into existence.150
[¶34] The court must ascertain intention of Legislature by directing its attention not merely
to clauses to be construed but to entire statute; it must compare clause with other parts of
law, and setting in which clause to interpreted occurs. 151 One must have regard to scheme of
fasciculus of relevant rules or sections in order to determine true meaning of any one or more
of them. Isolated consideration of provision leads to risk of some other interrelated provision
becoming otiose or devoid of meaning.152 In casu, RERA Act has been enacted to empower
authority to deal exclusive with the matters concerning real estate sector but if there will be
148
Forum for People's Collective Efforts and Ors. v. State of West Bengal, 3 S.C.R. 1 (2021).
149
Director of Public Works and Anr. v. Ho Po Sang and Ors., 3 W.L.R. 39 (1961); M.S. Shivananda v.
Karnataka State Road Transport Corporation and Ors., 1 S.C.C. 149 (1980); Lalji Raja and Sons v. Hansraj
Nathuram, 1 S.C.C. 721 (1971); Kanaya Ram and Ors. v. Rajender Kumar and Ors., 1 S.C.C. 436 (1985).
150
Bihar v. Kameshwar Singh, A.I.R. 252 (S.C. 1952).
151
State of West Bengal v. Union of India, A.I.R. 1241 (S.C. 1963).
152
O.P. Singla v. Union of India, 4 S.C.C. 450 (1984).
15
another remedy available under Consumer Protection Act the ultimately it defeats purpose of
the RERA Act.
(B) Financial drain for the promoter, if parallel remedies are available
[¶35] It is argued that going by the objective for which the RERA Act was enacted and
considering the special expertise and the qualifications of the Chairpersons and Members of
the Authority (Section 22) and the Appellate Tribunal (Section 46), such authorities alone
must be held entitled to decide all issues concerning Project registered under RERA Act. It
was submitted that if allottees were to be permitted to initiate parallel proceedings before
forum under Consumer Protection Act, the financial drain on promoter would render
completion of construction an impossibility and, therefore, the RERA Act in general and
Section 89 in particular be construed in such a way that all issues pertaining to concerned
project be decided only by authorities under RERA Act. Even with acceptance of such
interpretation, the allottees would still be entitled to approach the authorities Under Section
18 of the RERA Act.
[¶36] So, if a Consumer has not approached for redressal of its grievance under the particular
Statute, the Consumer can approach the Consumer Forum under the Consumer Protection
Act. But, if the Consumer had already approached the Authority under the relevant Statute,
he cannot simultaneously file any complaint under the Consumer Protection Act. It will
ultimately lead to more frustration for the promoter to deal the cases under multiple
authorities. In Casu, in the instant case, RERA Act and CP Act are in conflict with each
other.
(C) Special act should prevail over General law
[¶37] It is submitted that the legislature failed to appreciate the hardship in consolidating all
or some of the allottees to meet the requisite threshold from different jurisdictions. 153 For
example, Section 11 of the Consumer Protection Act, 1986 provides for the institution of
complaint in a district forum at a place of business of opposite party or where the cause of
action wholly or in part arose, it certainly creates more confusion in the mind of the allottees
as the placing of suing is very much restrictive in case of remedies seek under Consumer
Protection Act, 1986. If we look a perusal of Section 88 reveals, on the one hand, that the
provisions of the RERA, are in addition to and not in derogation of the provisions of any
153
Pioneer Urban Land and Infrastructure Ltd. v. Union of India, 8 S.C.C. 416 (2019).
16
other law for the time being in force. 154 At the same time, Section 89 provides that the RERA
will prevail over any other inconsistent law.155 The result is that while all cognate laws,
which are not inconsistent with RERA will continue to operate within their own sphere, the
provisions, which are, however, inconsistent with RERA, will not survive after RERA has
come into force.
[¶38] It is deemed to be prospective only 'nova constitutio futuris formam imponere debet
non praeteritis' means a new law ought to regulate what is to follow, not the past. 156 RERA
has been enacted to bring transparency in real estate sector like other sectors i.e., banking,
insurance etc. The real estate sector has been in dire need for regulations to protect life
savings of consumers / buyers which clearly demarcates that consumer protection act is not
competent to provide equal and effecious remedy so, current remedies should not be given to
the allottees.
[¶39] The court cannot read anything into a statutory provision which is plain and
unambiguous. A statute is an edict of the legislature. The language employed in a statute is
the determinative factor of legislative intent. The first and primary rule of construction is that
the intention of the legislation must be found in the words used by the legislature itself. The
question is not what may be supposed and has been intended but what has been said.
“Statutes should be construed, not as theorems of Euclid”, Judge Learned Hand said, “but
words must be construed with some imagination of the purposes which lie behind them”.157
So the RERA Act enacted has its own object and purpose so giving an alternate remedy
shows that legislature intention has been defeated. Thus, proceedings against same real estate
developer for the same project may be pending in different forums at different stages and in
different jurisdictions.158 In such cases, bona fide applicants will fail to consolidate all
allottees under one umbrella application or provide number of pending disputes against same
real estate developer.
[¶40] Absence of professionalism and standardization and lack of adequate consumer

protection. Though the Consumer Protection Act, 1986 is available as a forum to the buyers
in the real estate market, the recourse is only curative and is inadequate to address all the
154
RERA Act, S. 88.
155
RERA Act, S. 89.
156
Justice G.P. Singh, Principles of Statutory Interpretation, Ninth Edition, 2004 at p. 438.
157
Lenigh Valley Coal Cp. v. Yensavage, 218 F 547 (1914); Union of India v. Filip Tiago De Gama of Vedem
Vasco De Gama, A.I.R 981 (1990); Padma Sundara Rao v. State of Tamil Nadu, 255 I.T.R. 147 (S.C. 2002).
158
Swaraj Infrastructure (P) Ltd. v. Kotak Mahindra Bank Ltd., 3 S.C.C. 620 (2019).
17
concerns of buyers and promoters in that sector. the real estate sector is the second largest
employer in the country only next to agriculture besides accounting for 9% of the GDP.
Therefore, it was desirable to have transparent and accountable system in the real estate
sector of the country.159
[¶41] A special law shall prevail over the general and prior laws. 160 When two or more laws
operate in same field and each contains a non-obstante Clause stating that its provisions will
override those of any other law, stimulating and incisive problems of interpretation arise.
Since statutory interpretation has no conventional protocol, cases of such conflict have to
decide in reference to object and purpose of laws under consideration. 161 It is desirable to
determine overriding effect of one or other of relevant provisions in these two Acts, in a
given case, on much broader considerations of purpose and policy underlying two Acts and
clear intendment conveyed by language of relevant provisions therein. 162 Special and specific
purpose which motivated the enactment of RERA Act would be wholly frustrated if the
provisions of Consumer Protection Act dealing with cases of real estate sector were to
prevail over them.
Hence, it is submitted that RERA and CP Act are in conflict with each other.
4. WHETHER THE WORD ALLOTTEES IS ARBITRARY WHICH IS MADE IN

RERA?
[¶42] It is contended that word allottee is arbitrary under RERA Act. The Petitioner seeks to
establish that; (A) Under Inclusiveness and Over Inclusiveness, (B) Classification is not
justifiable as (i) It does not satisfy reasonable classification test as (a) It is not in consonance
with Doctrine of Proportionality and (C) Purpose of act get defeated as (i) It is
Constitutionally immoral, (ii) It is not based on Doctrine of Legitimate Expectation (iii) It is
Ultravires in nature.
(A) Under Inclusiveness and Over Inclusiveness
[¶43] In Nagpur Investment Trust and Ors. v. Vithal Rao and Ors.163 where this Hon’ble
court drew attention to definition of word 'allottee' in RERA. A home buyer who before
159
Rajya Sabha Debates on the Real Estate (Regulation and Development) Bill, 2015.
160
Sharat Babu Digumarti v. Govt. of NCT of Delhi, S.C.C. 1592 (2016).
161
Sarwan Singh and Anr. v. Kasturi Lal, 1 S.C.C. 750 (1977).
162
Shri Ram Narain v. Simla Banking & Industrial Co. Ltd., A.I.R. 614 (S.C. 1956).
163
Nagpur Investment Trust and Ors. v. Vithal Rao and Ors., 1 S.C.C. 500 (1973).
18
amendment could by himself set law into motion, is now left at mercy of similarly
circumstanced persons which itself is rendered impossible by absence of an information
generating mechanism which is accessible. An amendment has been engrafted without
removing the premise on which Pioneer was decided.164 In State of Gujarat and Anr. v. Shree
Ambica Mills Ltd.,165 this Court has laid down certain principles relating to under inclusive
and over inclusive classification.
(B) Classification is not justifiable
[¶44] The classification must satisfy two conditions, namely, (i) it is founded on an
intelligible differentia which distinguishes those that are grouped together from others; and
(ii) the differentia must have a rational relation to the object sought to be achieved by the
Act.166 In the case of L' Office Cherifien des Phosphates and Anr. v. Yamashita-Shinnihon
Steamship Co. Ltd.,167 this hon’ble court observed that the question of fairness will have to be
answered in respect of a particular statute by taking into account various factors viz., value of
the rights which the statute affects; extent to which that value is diminished or extinguished
by the suggested retrospective effect of the statute; unfairness of adversely affecting the
rights; clarity of the language used by Parliament and the circumstances in which the
legislation was created.
(i) It does not satisfy the reasonable classification test
[¶45] If the policy and the discretion is unguided, then discretion can be held to be
arbitrary.168 The Supreme Court in Smt. Nandini Satpathy v. P.L. Dani169, quoting Lewis
Mayers, stated that “to strike the balance between the needs of law enforcement on the one
hand and the protection of the citizen from oppression and injustice at hands of law-
enforcement machinery on the other is a perennial problem of statecraft.” Intelligible
differentia encompasses within its scope whether classification is rational and is capable of
being understood.170 If there is no rational nexus between classification and object sought it
has to be held unreasonable.171
164
State of Karnataka & Ors. v. Karnataka Pawn Brokers Association, 6 S.C.C. 363 (2018), para:16,20,23,24
165
State of Gujarat and Anr. v. Shree Ambica Mills Ltd., 4 S.C.C. 656 (1974).
166
Re, Special Courts Bill, 2 S.C.R. 476, 534-36 (1979).
167
L' Office Cherifien des Phosphates and Anr. v. Yamashita-Shinnihon Steamship Co. Ltd., 1 All E.R. 20
(1994).
168
Satwant Singh Sawhney v. D. Ramarathnam and Ors., A.I.R. 1836 (S.C. 1967).
169
Smt. Nandini Satpathy v. P.L. Dani, A.I.R. 1025 (S.C. 1978).
170
K.R. Lakshman v. Karnataka Electricity Board, (2001) 1 S.C.C. 442.
19
[¶46] In State of U.P and Ors. v. Committee of Management, Mata Tapeshwari Saraswathi
Vidya Mandir and Ors.172 this hon’ble court held that creation of a class within a class was
unconstitutional and arbitrary, thus making it ultra vires the Constitution. Similar views were
also expressed in the case of Sansar Chand Atri v. State of Punjab and Ors. 173 wherein this
Hon’ble Court quashed a notification that created a class within the already existing class of
defence pensioners. Classification is not reasonable and amounts to Class Legislation within
the meaning of “Arbitrariness” and the same is prohibited by Art. 14 of the Constitution.
[¶47] The Hon’ble SC in E. V. Chinnaiah v. State of Andhra Pradesh and Ors. 174 refused to
create class within already existing class of Schedule Caste/Scheduled Tribes for the purpose
of reservation holding that such a “class within a class” amounts to tinkering with and
violation of Article 14 of the Constitution. This Hon’ble Court held as follows: “If a class
within a class of members of the Scheduled Castes is created, the same would amount to
tinkering with the List. Such sub classification would be violative of Article 14.” Here,
allottees already had a sector-specific remedy under the RERA, which provides a mechanism
for adjudicating disputes between the developer and allottees. There were also arguments
made about how allottees could blackmail real estate developers by threatening to trigger the
IBC and force developers to divert funds from other projects to benefit the allottees.175
(a) It is not in consonance with Doctrine of Proportionality
[¶48] In CPIO v. Subhash Chandra Aggarwal176, the meaning of proportionality was

explained as: ...It is also crucial for standard of proportionality to be applied to ensure that
neither right is restricted to a greater extent than necessary to fulfil the legitimate interest of
countervailing interest in question... ‘Irrational’ most naturally means ‘devoid of reasons’
whereas ‘unreasonable’ means ‘devoid of satisfactory reasons.177 Where the law is challenged
on the ground that it is violative of Fundamental Rights Under Article 14, necessarily the
Court must enquire whether it is a capricious, irrational, disproportionate, excessive and,
171
Deepak Sibal v. Punjab University, 2 S.C.C. 145 (1989); State of Kerela v. N.M. Thomas, 2 S.C.C. 310
(1976).
172
State of U.P. v. Mata Tapeshwari Saraswathi Vidya Mandir, 1 S.C.C. 639 (2010); Union of India v. S.P.S.
Vains and Ors., 12 S.C.ALE 360 (2008); Sansar Chand Atri v. State of Punjab and Anr., 4 S.C.C. 154 (2002).
173
Sansar Chand Atri v. State of Punjab and Ors., 4 S.C.C. 154 (2002).
174
E. V. Chinnaiah v. State of Andhra Pradesh and Ors., 1 S.C.C. 394 (2005).
175
Pioneer Urban Land and Infrastructure Ltd., 8 S.C.C. 416 (2019), ¶ 5.
176
CPIO v. Subhash Chandra Aggarwal, A.I.R. 521 (S.C. 2019).
177
R v. Secretary of State for the Environment ex p Nottinghamshire CC, A.C. 240 at 249 (1986) and in R v.
Home Secretary ex p Brind, 1 A.C. 696 (1991); Minister for Immigration and Citizenship v. Li, H.C.A. 18
(2013).
20
finally, without any determining principle. 178 The Supreme Court in Smt. Nandini Satpathy v.
P.L. Dani179, quoting Lewis Mayers, stated that “to strike the balance between the needs of
law enforcement on the one hand and the protection of citizen from oppression and injustice
at hands of law-enforcement machinery on other is a perennial problem of statecraft.”
[¶49] In the case of Manish Kumar v. Union of India,180 the provision has been challenged as
violative of Article 14 of the Constitution of India. Not only that, the amendment has been
challenged on the ground of being class legislation without any reasonable differentia and its
retrospective application as manifestly arbitrary. Furthermore, the legislature has not
explained what is meant by the term “modified”181 used in the third proviso to Section 3 of
the Ordinance and the IBC Amendment, 2020. Also, amendment does not state whether the
required strength of 100 or 10% of the total number of allottees, whichever is less, is
mandated to be required only at the stage of initiating the proceedings or whether the strength
needs to be continued and maintained all through. What will be the consequence if one or
some allottees settle with the real estate developer and the requisite numbers then fall short
subsequently?
(C) Purpose of the act get defeated
[¶50] In the case of Kehar Singh v. State (Delhi Admn),182 Hon’ble court had explicitly
mentioned that if the words in any act are ambiguous, uncertain or any doubt arises as to the
terms employed, then it’s our paramount duty to put upon the language of the legislature
rational meaning that is to say examine every word, every section and every provision. While
considering the act as a whole and the necessity which gave rise to the Act. In Prakash and
Ors. v. Phulavati and Ors.,183 the apex Court observed that interpretation of a provision
depends on the text and the context. Normal rule is to read words of a statute in ordinary
sense. In case of ambiguity, rational meaning has to be given. In Casu, in case of apparent
conflict, harmonious meaning to advance object and intention of legislature has to be given.
In instant case there has been clear violation of the object shout to be achieve by the given
act.
178
Shayara Bano v. UOI, A.I.R. 945 (S.C. 1985).
179
Smt. Nandini Satpathy v. P.L. Dani, A.I.R. 1025 (S.C. 1978).
180
Manish Kumar v. Union of India, S.C.C. Online S.C. 384 (2020).
181
Pareekshit Bishnoi, IBC Ordinance, 2019: Impleadment of Allottees in a Pending Application”, India Corp
Law, 2020
182
Kehar Singh v. State (Delhi Admn), 3 S.C.C. 609 (1988).
183
Prakash and Ors. v. Phulavati and Ors., 2 S.C.C. 36 (2016).
21
(i) It is Constitutionally immoral
[¶51] In NCT of Delhi v. UOI and Ors.,184 Dipak Misra, CJI observed: “Constitutional
morality, appositely understood, means the morality that has inherent elements in the
constitutional norms and the conscience of the Constitution. If the law arbitrarily selects one
individual or class of individuals, one corporation or class of corporations and imposes a
penalty upon them, which is not imposed upon others guilty of same delinquency it would be
a bad law.185
(ii) It is not based on Doctrine of Legitimate Expectation
[¶52] Doctrine is based on right and grounded in rule of law 186 principle of non-
arbitrariness.187 It is well settled that it is expectation of benefit and while dispensing its
largess state should act in conformity with standards and norms. 188 Principle that state cannot
act in an arbitrary or discriminatory manner in matter of conferring or not conferring benefits
on individuals & that the distribution of largess should be reasonable has been applied in a
large number of cases.189
(iii) It is Ultravires in nature
[¶53] In State v. Nanga and Others,190 it was stated that the word “ultra vires only means
something has been done by a person or by a body of persons which was beyond his or their
powers”. Further, in P. Janardhan v. Union of India191 the Court said that “Term ultra vires
simply means beyond the power or lack of power. In instant case, while it posits that the
Home Buyers have to constitute 10% of the total allottees or be 100 in number, it remains
silent on what ought to be done when some of the allottees settle or withdraw.
Hence, it is humbly submitted that word ‘allottees’ enshrined under RERA is arbitrary.
184
NCT of Delhi v. Union of India and Others, S.C.C. OnLine 193 (2019).
185
John Vallamonttom v. Union of India, 6 S.C.C. 611 (2003).
186
Jitendra Kumar & Ors. v. State of Haryana & Anr., S.C.C. 5803 (2007).
187
M/S Sethi Auto Service Station v. Delhi Development Authority & Ors., A.I.R. 904 (S.C. 2009).
188
Netai Bag v. State of West Bengal, A.I.R. 3313 (S.C. 2000).
189
Kasturi Lal v. State of Jammu & Kashmir, A.I.R. 1992 (S.C. 1980); Parashram Thakur Dass v. Ram Chand,
A.I.R. 872 (S.C. 1982); Premjit Bhat v. Delhi Development Authority, A.I.R. 738 (S.C. 1980); Ajoomal
Lilaram v. Union of India, A.I.R. 278 (S.C. 1983); Kirti Kumar v. Indian Oil Corporation, Ahmedabad, A.I.R.
235 (Guj. 1983).
190
State v. Nanga and Ors., A.I.R. 25 (Raj. 1951); Madhvan Pillai v. State of Kerala, A.I.R. 214 (Ker. 1966).
191
P. Janardhan v. UOI, A.I.R. 171 (Mysore 1970); Anand Prakash v. Asst. Registrar, A.I.R. 22 (All. 1968).
22
5. WHETHER KAZA PORYO IS LIABLE TO REFUND THE AMOUNT INVESTED

BY MR. ASHOK?
[¶54] It is humbly contended that Kaza Poryo is not liable to refund the amount invested by
Mr. Ashok. The petitioner seeks to establish that, (A) There is no concealment of facts from
the side of Kaza Poryo, (B) There is default of post- payment from the side of allottees, (C)
There was vitiation of contract from the side of the allottee.
(A) There is no concealment of facts from the side of Kaza Poryo
[¶55] An express contract is a legally binding agreement, the terms of which are all clearly
stated either orally or in writing.192 Express contracts consist of agreements in which the
terms are stated by the parties. As a general rule, if an express contract between the parties is
established, a contract embracing the identical subject cannot be implied in fact, as the law
will not normally imply a substitute promise or contract for an express contract of the
parties.193 Misrepresentation is when false information is disclosed to the other party
believing to be the truth.194 In casu, there is no misrepresentation from the side of promoter
rather the allottee has failed to make the remaining payment.195
[¶56] To trigger the corporate insolvency resolution process, the homebuyers need to prima
facie establish that a default exists with regards to any unpaid amount. Once a homebuyer
has established that a default exists in relation to unpaid amount from the developer, then the
onus shall shift on the developer to show that the homebuyer is itself a defaulter as per the
agreement entered between both the parties and Real Estate Regulatory Authority ("RERA")
Rules and Regulations and hence, the homebuyer is not entitled to any compensation or
refund of the amount. If the developer can successfully prove the same, then it will amount to
the dismissal of the petition under Section 7 of the IBC. In Swiss Ribbons, articulated
reasons for the legislative policy enshrined in the IBC, i.e., the maintenance of predictability
and certainty, protection of the interests of the corporate debtor, ensuring that liquidation is
the last resort.196 Furthermore, it is well settled law that the conduct of a party is sufficient to
prove acceptance of offer.197 The terms of a contract can be expressly agreed orally or in
writing. In addition, terms may even be implied by law, the conduct of the parties, custom in
192
Up council, https://www.upcounsel.com/difference-between-implied-and-express-contract
193
Find a legal form in minutes, https://contracts.uslegal.com/types-of-contracts/express-and-implied-contracts/
194
Indian Contract Act, S. 18
195
¶ 9, Moot Proposition.
196
Swiss Ribbons Case, 4 S.C.C. 17 (2019), ¶ 64.
197
Brogden v. Metropolitan Railway Co., 2 App Cas. 666 (1877).
23
a particular trade, previous dealings or the parties’ intentions. In the instant case Mr. Ashok
was not willing to pay post instalment even after several notice send by the company. 198
Whereby, promoter has acted in accordance with section 11 (4) (a) and section 17 (1) of the
act.199
(B) There is default of post- payment from the side of allottees
[¶57] It is well settled law that the conduct of a party is sufficient to prove acceptance of
offer.200The terms of a contract can be expressly agreed orally or in writing. In addition,
terms may even be implied by law, the conduct of the parties, custom in a particular trade,
previous dealings or the parties’ intentions. According to the Indian Contract Act 1872, for a
contract to be valid, there should be an offer and acceptance, intention to create a legal
relationship, and a consideration.201 In case of a delay in payment from the allottee, the Act
enforces similar stringent action. The allottee will be liable to pay a similar monthly interest
as compensation to the promoter if they default in making timely instalments. Continued
violations post issuance of a notice give the promoter a right to terminate the allotment of
property and refund the amount collected after deducting booking amount and interest.
[¶58] Both the allottee and the promoter enter into an agreement for sale (hereinafter referred
to as “the agreement”) by virtue of which, they share a contractual relationship with each
other tied with restrictions of the agreement. The rights and obligations as specified by the
agreement have to be adhered to. In the case of non-obligation of the same, it attracts
liabilities. In an unprecedented case, Maharashtra Real Estate Regulatory Authority has
asked a home-buyer to pay a penalty (in the form of interest) to the developer for delay in
payment.202 Where, section-19 (6) of the RERA Act states that “every allottee, who has
entered into an agreement for sale to take an apartment, plot or building as case may be,
under section 13, shall be responsible to make necessary payments in the manner and within
the time as specified in said agreement for sale .......” Meanwhile clause (7) states that “the
allottee shall be liable to pay interest, at such rate as may be prescribed, for any delay in
payment towards any amount or charges to be paid under sub-section (6).” In instant case
Mr. Ashok failed to act in accordance with law.
198
¶ 9, Moot Proposition.
199
RERA Act, 2016.
200
Brogden v. Metropolitan Railway Co., 2 App Cas. 666 (1877).
201
202
SMP Namrata Associates v. Mrs. Suvarna Santosh Nazrekar, 1 S.C.C. 522 (2020).
24
(C) There was vitiation of contract from the side of the allottee.
[¶59] The factors vitiating a contract, inter alia include fraud by actively concealing a
material fact and its non-disclosure during performance of agreement. 203 S. 17 of ICA,
“fraud” includes a promise made without the intention of performing it. 204 Under Section 19
of the RERA Act allottees is liable to pay interest for any delay in payment towards any
amount or charges to be paid.205 If homebuyer fails to make necessary payments for
continuous period, developer is empowered to terminate agreement and revoke allotment
made to the buyer. Amount paid to promoter must be refunded to homebuyer within a period
of 90 days under RERA.
[¶60] In case of failure of the Allottee to make timely payments of any of the instalments as
per the payment plan, along with other charges and dues as applicable or otherwise payable
in accordance with the payment plan or as per the demands raised by the Company from time
to time in this respect, despite acceptance of delayed payment along with interest or any
failure on the part of the Allottee to abide by any of the terms and conditions of this
Agreement, the time periods mentioned in this clause shall not be binding upon the company
with respect to the handing over of the possession of the Apartment. 206 Doctrine of frustration
of contract cannot apply where the event which is alleged to have frustrated the contract
arises from the act or election of a party." Commercial exigencies can never lead to
frustration. 207
[¶61] The word "impossible" used in Section 56 of ICA has not been used in sense of
physical or literal impossibility. It ought to interpret as impracticable and useless from point
of view of object and purpose that parties had in view when they entered into contract. 208
Impracticability could arise due to some intervening or supervening circumstance which the
parties had not contemplated. However, if the intervening circumstance was contemplated by
the parties, then the contract would stand despite the occurrence of such circumstance.209
203
Lmj International Ltd. v. Sleepwell Industries Co. Ltd., 1 C.L.J. 301 (2013).
204
205
RERA Act, S. 19 (7).
206
Subhash Mangla & Anr. vs M/S. M3M India Ltd. & Anr., 1 S.C.C. 325 (2019).
207
Boothlinga Agencies v. V.T.C. Poriaswami Nadar, 1 S.C.R. 65 (1969), at Page 79.
208
Satyabrata Ghose v. Mugneeram Bangur and Co., S.C.R. 310 (1954)
209
Delhi Development Authority vs. Kenneth Builders and Developers Ltd. and Ors., S.C.C. 5370 (2016).
25
[¶62] In Pawan Dubey v. J.B.K. Developer210 the NCLT refused to consider a ‘delay’ as a
default and stated that allottees could only seek relief as financial creditors if there was a
failure in timely payment. Where parties can still perform main obligation despite fact that
subject-matter has gone out of their hands, frustration may not follow. There occur situations
when due to change in certain external circumstances contract becomes difficult to perform
but it still not become impossible to perform. Courts have no power to absolve party from
liability to perform contract because performance becomes onerous; expressed covenants in a
contract cannot be ignored only on account of unexpected and uncontemplated turn of events
after contract.211
Hence it is humbly submitted that Kaza Poryo is not liable to refund amount to Mr. Ashok as
there is default of payment from side of allottee.
PRAYER
It is hereinafter humbly prayed before the Hon’ble Supreme Court of India that in the light of
issue raised, argument advanced, authorities cited and pleadings made, the Hon’ble Court
may be pleased to adjudge and declare:
1. That, the instant writ petition is maintainable.

2. That, the word Allottees as Financial Creditor is not in consonance with Article 14, 19,
21 and 300-A of the Constitution.
3. That, RERA Act, 2016 and CP Act, 2019 are in conflict with each other.
4. That, the word Allottee is Arbitrary under RERA Act.
5. That, Kaza Poryo is not liable to refund the whole amount invested by Mr. Ashok.
OR / OTHERWISE
PASS ANY OTHER ORDER OR DIRECTION THAT THIS HON’BLE COURT MAY
DEEM FIT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD
CONSCIENCE.
FOR THIS ACT OF KINDNESS, THE COUNSELS SHALL FOREVER PRAY.
210
Pawan Dubey v. J.B.K. Developers, S.C.C. Online NCLT 794 (2018).
211
Alopi Parshad and Sons. Ltd. v. Union of India, 2 S.C.R. 793 (1960).
26
Sd/-
(Counsel for the Petitioner)
27

NMC 09 (P) : Under Article 32 of The Constitution of India

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NMC 09 (P) : Under Article 32 of The Constitution of India

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3RD SMT.

3RD SMT. NIRMALA DEVI BAM MEMORIAL INTERNATIONAL

BEFORE THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

KAZA PORYO.........................………………………...………. PETITIONER

UNION OF INDIA &

WRIT PETITION N o . X X X O F 2021

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND OTHER HON’BLE

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

ISSUES FOR CONSIDERATION ……………………...……………………..

[1.] Whether the writ petition filed by Kaza Poryo is

A. It violates Principle of Equality which is Basic Structure of Constitution…….

ii. It is a piece of Colourable

[3.] Whether the RERA and CPA are in conflict?

A. It defeats legislative intent for the enactment of

[4.] Whether the word allottee is arbitrary which is made in RERA?

A. Under Inclusiveness and Over

A. There is no concealment of facts from the side of Kaza

*NOTE: It is Bookmarked. Click on items (Issues) to directly jump to the respective

A.I.R. All India Records

1. A.K. Gopalan v. State of Madras , A.I.R. 27 (S.C. 1950)

7. Alopi Parshad and Sons. Ltd. v. Union of India , 2 S.C.R.793 (1960)

23. Boothlinga Agencies v. V.T.C. Poriaswami Nadar , 1 S.C.R. 65 (1969), at Page

88. Kartar Singh v. State of Punjab, 3 S.C.C. 569 (1994) ……………………………….……

119. Mohammed Ishaq v. S. Kazam Pasha, 1 S.C.C (Cri.) 721 (2009)

150. R (JF) v. Secretary of State, 2 All ER 707 (U.K. S.C. 2010)

182. SMP Namrata Associates v. Mrs. Suvarna Santosh Nazrekar, 1 S.C.C. 522

198. State of Tamil Nadu v. Ananthi Ammal, 1 S.C.C. 519

ARTICLES AND JOURNALS

1. 1&2 M.P. JAIN, INDIAN CONSTITUTIONAL LAW: WITH CONSTITUTIONAL

 Black’s Law Dictionary (9th edition, 2009)

“32. Remedies for enforcement of rights conferred by this Part-

Background of the Case

Contention Raised by Kaza Poryo

ISSUES FOR CONSIDERATION

WHETHER THE WRIT PETITION FILED BY KAZA PORYO IS

WHETHER THE WORD ALLOTTEES AS FINANCIAL CREDITOR IS

WHETHER THE RERA AND CONSUMER PROTECTION ACT ARE IN

WHETHER THE WORD ALLOTTEES IS ARBITRARY WHICH IS MADE IN

WHETHER KAZA PORYO IS LIABLE TO REFUND THE AMOUNT INVESTED

[1.] WHETHER THE WRIT PETITION FILED BY KAZA PORYO IS

[2.] WHETHER THE WORD ALLOTTEES AS FINANCIAL CREDITOR IS

[3.] WHETHER THE RERA AND CONSUMER PROTECTION ACT ARE IN

[4.] WHETHER THE WORD ALLOTTEES IS ARBITRARY WHICH IS MADE IN

[5.] WHETHER KAZA PORYO IS LIABLE TO REFUND THE AMOUNT

1. WHETHER THE WRIT PETITION FILED BY KAZA PORYO IS

(A) The petitioner has a locus standi

(C) There is no requirement for the Petitioner to exhaust local remedies

(D) The Hon’ble Court is a “Sentinel on the Qui Vive”

2. WHETHER THE WORD ALLOTTEES AS FINANCIAL CREDITOR IS

(A) It violates Principle of Equality which is Basic Structure of Constitution

(B) It didn’t pass the prism of Article 14 of the Constitution

(C) It is arbitrary and unreasonable

(ii) It didn’t pass the Wednesbury test

(D) It is in violation of Article 19

(i) Restriction under Article 19 (6) is unreasonable

(E) It is not in consonance with Article 21 of the Constitution

Article 21 by this court in Francis Coralie Mullin v. Administrator, Union Territory of

(i) It is in violation of procedure established by law

(ii) It is a piece of Colourable Legislation

(F) It is in violation of Article 300-A

3. WHETHER THE RERA AND CONSUMER PROTECTION ACT ARE IN

(A) It defeats legislative intent for the enactment of RERA