In The Hon’ble

Supreme Court of Renata

Writ Petition ( c ) : ____/2019

Ananda and Ors … Petitioner

v.

Union of Renata and Ors … Defendants

Written Submissions on Behalf of the Respondents,

Counsel for the Respondents

Amity University First National Moot Court Competition-2011

Table of Contents

Table of Contents...... ii

Index of Authorities...... iiI

Statement of Jurisdiction...... vi

Statement of Facts...... vii

StatementofCharges...... ix

Arguments Advanced...... 1

[A]. The supreme court of renata cannot entertain this present case

[B]. . The civil liabilities Nuclear Damages Act 2010 is valid and constitutional.

[C]. no absolute liability can accrue on the government of renata and santagar power corporation

Prayer...... 33

list of abbreviations

AIR: All India Reporter

CPC: Code Of Civil Procedure

HON’BLE: Honorable

SC : Supreme Court

SCC : Supreme Court Cases

SCR : Supreme Court Reporter

U.O.I. : Union Of India

www : World wide Web

2010 Act : Civil Liabilities Nuclear

Damage Act

list of Cases

  1. Additional sec. to the Govt. of India & Ors v. Smt Alka Subhas Gadia Anr ……….4
  1. AIADMK v. L.K.Tripathi …………………………………………………………..20
  1. Bacchan singh v. State of Punjab ……………………………………………………8
  1. Bank of India v. Peerless general finance & investment co ltd & ors……………... 11
  1. C.J. of Andhra Pradesh v. L.V.A.Dixitulu & ors. …………………………………. .11
  1. Deepak Bajaj v. State of Maharashtra & Anr ………………………………………. .4
  1. Dhondi Tukaram Mali v. Dadoo Piraji Adgale …………………………………….. .5
  1. E.P. Royappa v. St of Tamil Nadu & ors………………………………………… ....13
  1. Gundaji Satwaji Shinde v. Ramchandra Bhikaji …………………………………… .5
  1. Hillier v. Air Ministry ……………………………………………………………….21
  1. Jitendra nath Biswas v. Emperor & Cyclone tea & co……………………………... .6
  1. LMS International Ltd v Styrene Packaging and Insulation Ltd………………………22
  1. Maneka Gandhi v. UoI……………………………………………………………... .13
  1. National telephone co. v. Baker Eastern ……………………………………………21
  1. South African telegraph company limited v. Capetown tramways co ltd…………. 21
  1. Premier Automobile ltd v. Kamlekar Shantaram Wadke of B’bay & ors ………….. 6
  1. Quamarul Islam v. S.K.Kanya …………………………………………………… ..19
  1. Rylands v. Fletcher ……………………………………………………………….... 20
  1. S.A.Khan v. Bhajan lal……………………………………………………………. ..19
  1. Shri Panch Nagar Parakh Manaasur v. Purghottam Das …………………………... .5
  1. State of Bombay v. R.M.D.C……………………………………………………….. 9
  1. State of Madras v. V.G.Row ………………………………………………………….9
  1. Union of India v. Ranbaxy Laboratories ltd ………………………………………....10

list of websites

list of books and Articles

  1. IDSABrief 2110 Ramachandran
  2. “Torts” by Michael Jones, 4th Edn.
  3. “Winfield and Jolowicz on Tort” , 13th Edn .
  4. Rattanlal & Dhirajlal “The Law of Torts”26th Edn.
  5. The Constitution Of India

STATEMENT OF JURISDICTION

The Supreme Court of Renata has jurisdiction to try, entertain and adjudicate the present matter under the provisions of the Constitution Of Renata

Statement of Facts

1..Union of Renata is a developed state. It is located in the Southern Asia. The Constitution establishes a republican form of government with Presidents as the head of the state. It is a commonwealth nation and guarantees to its citizen’s basic fundamental rights including equality before law and protection of life and liberty.

2. Renata facing extreme energy crisis was eyed as the best business centre for all the corporate giants related to nuclear energy. The Government of Renata, while understanding this part and with the intention of raising its revenues besides protecting the human rights of its citizens passed the Civil Liabilities for Nuclear Damages Act, 2010. The Preamble to the Act laid down:

“An Act to provide for civil liability for nuclear damage, and prompt compensation to the victims of a nuclear incident through a no fault liability regime channelling liability to the operator, appointment of Claims Commissioner, establishing of Nuclear Damage Claims Commission and for connected matters therewith or incidental thereto.”

Retania is not a member of any international instrument regarding civil liability for nuclear damages but signed and ratified Agreement for Civil Nuclear Cooperation with the Golanod United on August 3, 2007 which entered into force on January 1, 2008. The Agreement provides for transfer of technology and nuclear fuel at subsidised rates to be used for production of energy.

3. On March 27, 2017 at 0023 Hrs while testing the potential safety emergency core cooling feature in a scheduled experiment during the normal shutdown procedure at the Santagar Power Plant located at Santagar District in Eastern Province of Renata, the nuclear reactor suffered a catastrophic power increase leading to explosions in the core thereby dispersing large quantities of radioactive fuel and core materials into the atmosphere igniting the combustible graphite moderator leading to a nuclear meltdown. Five neighbouring provinces and some trans-boundary areas were also affected.

4. The incident was brought to the notice of the Atomic Energy Regulatory Authority which in a meeting held on April 4, 2017 and after preliminary inquiry concluding that there was no grave and imminent danger to life and property did not notify the incident.

5.The Renatan Times, leading newspaper reported that ‘four hundred times more radioactive material was released than had been by the atomic bombing of Hiroshima. However, compared to the total amount released by nuclear weapons testing during the 1950s and 1960s, the Santagar disaster released 100 to 1000 times less radioactivity. Around 1.24 million people affected with damage to property amounting to $1.2 billion’. The matter was of grave concern as per the reports but the reply by the authorities was found to be completely disappointing. When contacted by the Press, the Director-General of the Santagar Power Plant refused to comment on the incident. A similar report on melt down was published in Retanian Daily another leading newspaper.

6. Sources in the Santagar Power Plant mentioned that the cooling feature imported from Karnikav Inc. of Golanod United had been replaced a month back. Foul play on the part of Karnikav was suspected which was later confirmed by the Director-General’s office. It was contended by Santagar Power Corporation that no liability could be accorded since the cooling feature supplied by Karnikav which was the cause of the incident was faulty.

7. The claims were estimated to be around $23 billion. Several Writ Petitions were filed against Santagar Power Corporation including Karnikav Inc , by various NGOs in the High Courts of as many as five provinces of Renata (as the district courts had no jurisdiction over this matter) inter alia challenging the validity of the Nuclear Damages Act, 2010 mainly on

the grounds of its insufficiency to meet the liabilities in case of nuclear disaster. Transfer petition was filed in the Supreme Court by Anada, an organisation working for the protection and preservation of environment founded by Ms. Riyalin Roundal, a Retanian citizen.

8. The Supreme Court issued notice to all concerned and listed the matter for hearing on 20.08.2019.

Statement of issues

Part One: Challenge to Jurisdiction

I. The Supreme Court of Renata has no jurisdiction to hear the present claims .

Part Two: Challenge To Validity

II. The 2010 Act is completely valid and constitutional in nature .

Part Three: Merits

III. There is no absolute liability on part of the Respondents for the damage caused in the present case.

1.No absolute liability on part of the Government.

2. No Liability on Part of Santagar power Corporation

Memorial for the Respondent

Arguments Advanced

PART ONE: OBJECTIONS TO JURISDICTION

The Supreme Court of Renata has no jurisdiction to hear the present claims

  1. Union of Renata is a developed state . It is a commonwealth nation and guarantees to its citizens basic fundamental rights including equality before law and protection of life and liberty. Renata was facing “extreme energy crisis”.[1]The Government of Renata, while understanding this part and with the intention of raising its revenues besides protecting the human rights of its citizens passed the Civil Liabilities for Nuclear Damages Act, 2010[2]. The Preamble to the Civil Liabilities for Nuclear Damages Act, 2010 (hereinafter “the 2010 Act”) states as follows:

“An Act to provide for civil liability for nuclear damage, and prompt compensation to the victims of a nuclear incident through a no fault liability regime channelling liability to the operator, appointment of Claims Commissioner, establishing of Nuclear Damage Claims Commission and for connected matters therewith or incidental thereto.”[3]

  1. The 2010 Act itself purports to establish a concrete framework for disposal of cases that relate to the subject-matter such as the one in the present case. The competent authority to entertain the claims such as those arising out of or incidental to nuclear damages shall be dealt in accordance with the procedure established by law. The correct procedure is the one which is inlaid in the 2010 Act and the Legislature itself has approved the same.
  1. It is humbly submitted before the Hon’ble Supreme Court that it is clear from the preamble of impugned Act the claims commission has the competent jurisdiction in the present case as per the procedure in accordance with law laid down by the legislature “ appointment of Claims Commissioner, establishing of Nuclear Damage Claims Commission and for connected matters therewith or incidental thereto.”. Under this provision the matter should have been raised before the Claims Commission rather than directly approaching the Supreme Court .The Supreme court although is the apex court ,its doors cannot be knocked before exhausting other available alternatives remedies established by law.
  1. In this case, as per Para.6 of the Moot Problem “ The claims were estimated to be around $23 billion.” The claims are basically for compensation and are conceived as monetary claims having determinate amounts. Thus, more than being a patent breach of Fundamental Rights, the present case deals with compensation arising out of Torts. Such matter is purely of a civil nature and invoking the Writ Jurisdiction of the Supreme Court in garb of the violation of Fundamental Rights will only frustrate the very purpose of the 2010 Act.
  1. The 2010 Act provides the apt procedure to settle such kind of a matter through a Claims Commission. Merely because an alternative remedy in the form of approaching the Supreme Court exists, it does not mean that the appropriate course need not be followed. Even M.C. Mehta vs. UOI[4] States that:

“It is only in exceptional cases of the nature indicated by us above, that compensation may be awarded in a petition under Article 32.”

In India the Courts of law have laid down in a number of cases that the power under Article 32 should be sparingly used. Article 32 Of The Indian Constitution provides for :

(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, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution .

“The powers under Articles 226 and 32 are wide, and are untrammeled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the Courts(India) have over the years evolved certain self-restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. ”[5]

“It is in pursuance of this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the Courts insist that the aggrieved person first allow the due operation discretionary extraordinary and equitable jurisdiction under Articles 226 and 32 respectively and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. ”[6]

  1. Similarly in the present case the appellants should have first exhausted the available remedy before invoking the writ jurisdiction of the Supreme Court of Renata . Therefore it is humbly submitted that the writ petition holds no merit should not be entertained by the Supreme Court of Renata in the present case .
  2. A perfectly sound analogy may be drawn from Section 9 of the Civil Procedure Code, 1908 of India (India being a commonwealth country like Renata). That Section only recognizes the principle that a Court has the jurisdiction to try all the suits of a civil nature unless the Court is impliedly or expressly barred from doing so. For instance,

where the jurisdiction to try suits relating to agricultural land were specifically meant to be tried by the competent authority under the Tenancy Act of 1948, the Civil Court was expressly barred from trying such a suit.[7] Similarly, in cases where the subject-matter is Electricity, Income Tax, Central Administration etc, there have been separate Tribunals which have been established by various Legislations and it is only those Tribunals that are competent to try the suits of a civil nature dealing with a subject-matter such as theft of Electricity, Income Tax Evasion, Indian Administrative Services etc respectively.

  1. In a more recent case of Shri Panch Nagar Parakh Manaasur v. Purshottam Das,, the Supreme Court (India) examined the issue of implied bar of the Civil Court under section 9 of the C.P.C. in the matter where remedy was provided in a special statute and it observed :

"..... However, in cases where there is no express provision, excluding jurisdiction of the Civil Court, it would be necessary to enquire and determine whether it is impliedly barred. For this purpose, the scheme of the Act and the relevant provisions are required to be examined to find out whether the statute provides rights and remedy and where the scheme of the Act is such that the procedure provided therein will be conclusive giving finality and thereby excluding the jurisdiction of the Civil Court in respect thereof."[8]

  1. “The enforcement of a right or an obligation under the Act, the remedy provided uno flatu in it is the exclusive remedy. The legislature in its wisdom did not think it fit and proper to provide a very easy and smooth remedy for enforcement of the rights and obligations created under the Act. Persons wishing the enjoyment of such rights and wanting its enforcement must rest content to secure the remedy provided by the Act. In India, under s. 9 C.P.C. courts have, subject to certain restrictions, jurisdiction to try suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. If a suit in relation to an industrial dispute relates to the enforcement of a right created under the Act by necessary intendment, the jurisdiction of the civil court is barred. That being so. in India, it is barred for all purposes and a suit for in-”[9]
  2. “A five-Judges Bench of this Court (Supreme Court of India) considered the language of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was observed: "Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be deter- mined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not."[10]
  3. In the present case the preamble clearly states that the Nuclear Damage Claims Commission will be set up which will deal with connected matters therewith or incidental thereto. Thus the act itself provides the procedure and remedy and it was not open to the appellant to approach the civil court for getting the relief which he could get only under the scheme of the Act.
  1. Hence it is humbly submitted before this Hon’ble Court, that even though the Supreme Court is the ultimate guardian of Fundamental Rights of any citizen, still it does not mean that the procedure established by law will be compromised in a callous manner. Hence, it is only the Nuclear Claims Commission which is competent to hear the present case. The Supreme Court cannot be approached before exhausting the available remedy provided for in the 2010 Act.

PART TWO: VALIDITY OF THE 2010 ACT

II. The 2010 Act is completely valid and constitutional in nature

  1. It is not disputed that if any enactment violates the Fundamental Rights as being arbitrary, unjust, unreasonable or irrational in nature, then such enactment is clearly invalid.[11] However, that is not the case with the 2010 Act in the present matter. As per Para 2 of the Moot Problem, the Government of Renata has fully considered three things before enacting the 2010 Act, i.e. (a) trying to find a solution to the extreme energy crisis in Renata, (b) raising the Revenue of the State and (c) protecting the Human Rights of its citizens. It cannot be patently said that the Government has arbitrarily formulated such a policy as the 2010 Act without even considering the various practicalities associated with the Act. As M.C. Mehta[12] (supra) puts it:

“The infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the civil courts.”

  1. The 2010 Act purports to establish a “no fault liability regime” and provides “for civil liability for nuclear damage”. There is nothing which is patently wrong or ulterior about the 2010 Act. The basic Fundamental Rights such as equality before law and protection of life and liberty have by no means been abridged or curtailed by the very inception of the 2010 Act. It has been laid down in State of Bombay vs. RMDC[13] that

“when the validity of an Act is called in question, the first thing for the court to do is to examine whether the Act is a law with respect to a topic assigned to the particular Legislature which enacted it. If it is, then the court is next to consider whether, in the case of an Act passed by the Legislature of a Province (now a State), its operation extends beyond the boundaries of the Province or the State, for under the provisions conferring legislative powers on it such Legislature can only make a law for its territories or any part thereof and its laws cannot, in the absence of a territorial nexus; have any extra-territorial operation. If the impugned law satisfies both these tests, then finally the court has to ascertain if there is anything in any other part of the Constitution which places any fetter on the legislative powers of such Legislature. The impugned law has to pass all these three tests.”