024A

IN THE

HON’BLE SUPREME COURT OF KISAANISTAN

AT NEW DELHI

IN THE MATTERS OF

SPECIAL LEAVE PETITION NO. 2455/2021

MS. SADHIKA CHABBRA.............................................................................APPELLANT

(REPRESENTED BY HERSELF)

V.

SPEAKER, GAJSTHAN LEGISLATIVE

ASSEMBLY.............................RESPONDENT

(REPRESENTED BY HIMSELF)

[Under Article 136 of the Constitution of Kisaanistan, 1950, read with Rule 3 of Order XXI

of the Supreme Court Rules, 2013]

AND

SPECIAL LEAVE PETITION NO. 2456/2021

MS. SADHIKA CHABBRA..............................................................................APPELLANT

(REPRESENTED BY HERSELF)

V.

CHIEF MINISTER, STATE OF

GAJSTHAN.............................................RESPONDENT

(REPRESENTED BY MS. R. D. KUMARPANI)

 [Under Article 136 of the Constitution of Kisaanistan, 1950, read with Rule 3 of Order XXI

of the Supreme Court Rules, 2013]

CLUBBED WITH

CIVIL APPEAL NO. 2457/2021

7 MILES PVT. LTD...........................................................................................APPELLANT

(REPRESENTED BY CEO, MS. LAKSHMEE MEHLOT)

V.

GHANTAGHAR PVT. LTD..........................................................................RESPONDENT

(REPRESENTED BY CEO, MR. SOORESH HANZ)

[Under Article 133 of the Constitution of Kisaanistan, 1950, read with Rule 1 of

Order XIX of the Supreme Court Rules, 2013.]

THE ABOVE MATTERS HAVE BEEN CLUBBED

Under Article 142 of the Constitution of India Read with Rule 3, Order LV Of the Supreme

Court Rules, 2013

ON BEHALF OF THE APPELLANTS

TABLE OF CONTENTS
INDEX OF AUTHORITIES
 STATEMENT OF FACTS

 On December 26, 2019, assembly elections took place in the province of Gajsthan

situated in the Republic of Kisaanistan [“ Kisaanistan”]. The results were declared

and the Peace Party thus formed the provincial government.

Disputes arose among ministers of the Peace Party during July 2020 regarding

allocation of state revenue. The matters of dispute were related to the fundamental

idea of the Peace Party, and thus the Party asked the members to support it in all its

policies.

On August 15, 2020, the dissenting ministers, along with 13 other representatives

publicly opposed the policies of provincial government, and the central leadership of

the Peace Party denounced said resolution.

On August 16, 2020, the Socialist Party’s representative presented an application for

the disqualification of the forementioned members from the Assembly on the grounds

of defection. Meanwhile, on October 15, 2020, the Bill was introduced in the

assembly; with the dissenting members voting against it, the Bill was defeated.

Following this, on November 5, 2020, the Socialist Party urged the State Governor to

direct the Chief Minister to face a trust vote in the assembly. The Governor thus

directed that it be done by November 15, 2020. The Chief Minister denied the

direction challenging its constitutionality. On November 18, the Speaker dismissed

the application for disqualification of dissenting members.

 The appellant, 7 Miles Pvt. Ltd. [“7 Miles”] observing that the colleges in Veerupur,

Gajsthan host fests annually from September-December, decided to monetize on this

opportunity in 2020 in order to kickstart a massive expansion at their restaurants.

Thus, in order to procure large-scale kitchen equipment for their restaurants, the
appellant entered into an agreement on May 1, 2020, with the respondent, Ghantaghar

Pvt. Ltd. [“Ghantaghar”], who has a reputation for delivering quality products

within aggressive deadlines. Ghantaghar had also boasted about its vast network of

suppliers. The agreement specified the deadline for delivery of goods as 31 July 2020.

The agreement also had a force majeure clause.

On June 15, 2020, the Ministry of Health notified regulations for closing educational

institutions till November 30, 2020, and banning inter-state transportation of goods till

July 30, 2020, which came into force in the entire State of Gajsthan on the onslaught

of a flu that was contained within the state. However, neither intra-state transport nor

manufacturing was suspended. Hence, the respondent denied delivering goods within

the deadline citing increased costs and difficulty.

 STATEMENT OF JURISDICTION

The appellants most humbly submit to the jurisdiction of the Hon’ble Supreme Court of

Kisaanistan to hear all the matters of

1. Special Leave Petition No. 2455/2021, filed under Article 136 of the Constitution of

Kisaanistan, 1950, read with Rule 3 of Order XXI of the Supreme Court Rules, 2013

2. Special Leave Petition No. 2456/2021, filed under Article 136 of the Constitution of

Kisaanistan, 1950, read with Rule 3 of Order XXI of the Supreme Court Rules, 2013

3. Civil Appeal No. 2457/2021, filed under Article 133 of the Constitution of

Kisaanistan, 1950, read with Rule 1 of Order XIX of the Supreme Court Rules, 2013.

The aforementioned matters have been clubbed under Article 142 of the Constitution of

Kisaanistan, 1950, read with Rule 3 of Order LV of the Supreme Court Rules, 2013.

All of which is urged in detail in the written submission and is submitted most respectfully.
 ISSUES FOR CONSIDERATION

I. WHETHER OR NOT WOULD THE ACTIONS OF THE DISSENTING MEMBERS BE REGARDED

AS ‘VOLUNTARILY GIVING UP MEMBERSHIP’ AND THUS AMOUNT TO DEFECTION?

II. WHETHER OR NOT DOES THE GOVERNOR HAVE THE DISCRETIONARY POWER TO

DIRECT THE CHIEF MINISTER TO CALL FOR A TRUST VOTE IN THE ASSEMBLY?

III. WHETHER OR NOT IS THE FAILURE OF THE RESPONDENT TO DELIVER GOODS

ACCORDING TO THE CONTRACTUAL DATE IN VIOLATION OF THE AGREEMENT DATED

MAY 1, 2020?
 SUMMARY OF ARGUMENTS

I. THE ACTIONS OF THE DISSENTING MEMBERS SHOULD BE REGARDED

‘VOLUNTARILY GIVING UP MEMBERSHIP’ AND THUS AMOUNT TO AS DEFECTION

The fact that the Peace Party had asked all its members to support it in all its policies, and

that subsequently their Bill was opposed on the floor of the assembly by the dissenting

members of the Party makes evident the defiance of Party direction, and thus amounts to

defection under Schedule X of the Constitution of Kisaanistan.

II. THE GOVERNOR DOES HAVE THE DISCRETIONARY POWER TO DIRECT THE CHIEF

MINISTER TO CALL FOR A TRUST VOTE IN THE ASSEMBLY

As per Article 163(2) of the Constitution of Kisaanistan, whenever there is doubt with

regards to whether or not the Governor is required to act in his discretion under the

Constitution, the decision of the Governor in his/her discretion shall be final, and the validity

of anything done by the Governor shall not be called in question on the ground that he ought

or ought not to have acted in his discretion. Additionally, the Supreme Court of India has

affirmed the power of the Governor to call for a trust vote/floor test whenever he/she a

government in power has lost the confidence of the House/Assembly.

III. THE FAILURE OF THE RESPONDENT TO DELIVER GOODS ACCORDING TO THE

CONTRACTUAL DATE IS IN VIOLATION OF THE AGREEMENT DATED MAY 1, 2020

The fact that intra-state transport of goods and manufacturing activities have not been

suspended by the Ministry of Health’s notification proves that the delivery of goods within

the deadline, however difficult, is not impossible. Courts, in various cases, have held that

increased costs and difficulty is no excuse for non-performance of contractual obligations by

invoking the doctrine of frustration and force majeure.

 ARGUMENTS ADVANCED

I. THE ACTIONS OF THE DISSENTING MEMBERS SHOULD BE REGARDED AS

‘VOLUNTARILY GIVING UP MEMBERSHIP’ AND THUS AMOUNT TO AS DEFECTION

It must first be clarified that “the words ‘voluntary giving up membership’ are not

synonymous with ‘resignation’ and have a wider connotation...Even in the absence of a

formal resignation, an inference can be drawn from the conduct of a member that he has

voluntary given up membership of the political party to which he belongs.”1

A. The scope of judicial review on the decision of the Speaker

The Supreme Court of India [“Supreme Court”] has elaborated on the rationale underlying

Tenth Schedule2 and upheld the Anti-Defection Law brought out by way of Constitutional

Amendment3, and ruled that “the Speaker’s order under the law disqualifying a member of

the legislature is subject to judicial review.”4

Admittedly, paragraph 7 of Tenth Schedule bars court interference. The majority view of the

Supreme Court was that “Paragraph 7 of Tenth Schedule barring judicial review affects

Article 136, 226 and 227 of the Constitution (of India), and thus is required to be ratified by

half the State Legislatures in accordance with Article 368(2) of the Constitution (of India). As

it has not been ratified, it would be constitutionally invalid.”5

1
Ravi S. Naik v. Union of India, AIR 1994 SC 1558
2
Constitution of Kisaanistan, 1950
3
The Constitution (Fifty-second Amendment) Act, 1985
4
Kihoto Hollohan v. Zachilhu, AIR 1993 SC 412; cited in M. P. JAIN, INDIAN

CONSTITUTIONAL LAW 49(LexisNexis, 8th ed. , 2018)

5
Kihoto Hollohan v. Zachilhu, AIR 1993 SC 412; cited in M. P. JAIN, INDIAN

CONSTITUTIONAL LAW 49(LexisNexis, 8th ed. , 2018)

 B. The dissenting members are liable to be disqualified from the Assembly

on grounds of defection

Paragraph 2(b) of Tenth Schedule states that a member of the House belonging to any

political party shall be disqualified for being a member of the House, if he votes in such

House contrary to any direction issued by the political party to which he belongs, without

obtaining, the prior permission of such political party, and such voting has not been condoned

by such political party within fifteen days from the date of such voting.6

The Supreme Court in Kihoto Hollohan7 has adopted a restrictive view of the ‘direction’

issued by a political party “the violation of which may entail disqualification”. 8 With

relevance to the current facts, such direction should pertain to matters where “the motion

under consideration relates to a matter which is an integral policy of the political party on the

basis of which it approached the electorate.”9

The forementioned provisions become relevant when considering the fact that the central

leadership of the Peace Party had asked the members to support the Party in all its policies. 10

Keeping in mind the aforementioned case and the fact that the Gajsthan (Tax and other

Exemptions) Bill, 202011 introduced by the Peace Party was integral to the policies and ideals

of the party and the basis on which it approached the electorate, it can be concluded that the

party had issued a direction to all its members. The dissenting members, voting against such

6
Para 2(b), Tenth Schedule, Constitution of Kisaanistan, 1950
7
Kihoto Hollohan v. Zachilhu, AIR 1993 SC 412
8
M. P. JAIN, INDIAN CONSTITUTIONAL LAW 47(LexisNexis, 8th ed. , 2018)
9
Kihoto Hollohan v. Zachilhu, AIR 1993 SC 412; cited in M. P. JAIN, INDIAN

CONSTITUTIONAL LAW 47(LexisNexis, 8th ed. , 2018)

10
Proposition, The First Year Intra-Batch Moot Court Competition, 2020-21, para. 06
11
Proposition, The First Year Intra-Batch Moot Court Competition, 2020-21, para. 11.
direction on the floor of the House12, have violated the direction issued the party, and thus

would be liable for disqualification on the grounds of defection.

II. THE GOVERNOR DOES HAVE THE DISCRETIONARY POWER TO DIRECT THE

CHIEF MINISTER TO CALL FOR A TRUST VOTE IN THE ASSEMBLY

Admittedly, the normal rule is that the Governor is bound by the aid and advice of the

Council of Ministers. This rule, however, has exceptions allowing the Governor to act in his

discretion.

The Constitution gives the Governor the power to decide whether or not a matter falls under

his discretionary powers.13 The Governor’s decision under this is final, and the validity of

such decision shall not be called into question.14

Admittedly, the exceptions pointed out under the Constitution do not relate to the power of

the Governor calling a trust vote. However, the Supreme Court has held that such exceptions

are exhaustive.15 The Governor has been conferred discretionary powers for the primary

reasons that he is an agent of the Central Government and serves as an important link

between the Centre and State to maintain the unity and integrity of the country. 16 The counsel

submits that it is sine qua non for the State Government of Gajsthan to have the confidence of

the Assembly for the maintenance of unity and integrity in the country. Thus, the Governor

has the right as well as the duty to direct the Chief Minister to call for a trust vote if or when

he objectively believes that the government has lost the confidence of the Assembly. This

12
Proposition, The First Year Intra-Batch Moot Court Competition, 2020-21, para. 11
13
Article 163(2), Constitution of Kisaanistan, 1950
14
Article 163(2), Constitution of Kisaanistan, 1950
15
M.P. Special Police Establishment v. State of M.P., (2004) 8 SCC 788
16
VIII CAD, 489, 495
view has been affirmed by the Supreme Court in Shivraj Singh Chouhan & Ors. v. Speaker

Madhya Pradesh Legislative Assembly & Ors.17

Therefore, in the present case, the counsel submits that the Governor’s direction to the Chief

Minister to call a trust vote came under his discretionary powers and was not ultra vires of his

constitutional mandate. The Governor called for a trust vote only upon the application by the

Socialist Party, wherein it alleged that the incumbent government had lost the trust of the

assembly.18 Additionally, the Governor’s direction was in accordance with the S. R. Bommai

judgement, wherein the Supreme Court asked for a floor test to be held if the government is

believed to have lost the trust of the House.19

III. THE FAILURE OF THE RESPONDENT TO DELIVER GOODS ACCORDING TO THE

CONTRACTUAL DATE IS IN VIOLATION OF THE AGREEMENT DATED MAY 1, 2020

A. The agreement cannot be frustrated by invoking Clause 5

The doctrine of frustration has been defined by the Supreme Court in Satyabrata Ghose,

wherein it stated that “the doctrine is based essentially on impossibility of performance of the

contract.”20 The doctrine is a special case of impossibility and as such comes under S. 56 of

the Contract Act.21 It describes such impossibility as something “which is so fundamental as

to be regarded by law as striking the root of the contract a whole.

17
(2020) SCC OnLine SC 486
18
Proposition, The First Year Intra-Batch Moot Court Competition, 2020-21, para. 12
19
S. R. Bommai v. Union of India, 1994 AIR 1918
20
Satyabrata Ghose v. Mugneeram Bangur & Co., AIR 1954 SC 44
21
S. 56, Indian Contract Act, 1872