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Guramma Bhratar Chanbasappa Deshmukh v Mallappa Chanbasappa

HIDAYATULLAH NATIONAL LAW UNIVERSITY

IN THE HON’BLE
SUPREME COURT OF INDIA

IN THE MATTER OF

Bangalore Water Supply and Sewerage board & Others.


(Appellant)
v.
R. Rajappa
(Respondent)

MEMORANDUM ON BEHALF OF- Appellant


COUNSEL- Nitikesh Mahapatra
SEM-IV
ROLL NO.- 93

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TABLE OF CONTENTS

ABBREVIATIONS...................................................................................................................i
INDEX OF AUTHORITIES..........................................................................…........................ii
STATEMENT OF JURISDICTION...........................................................................................4
STATEMENT OF FACTS………..…………………………………………………………...4
ISSUES RAISED....................................................................................................................7
SUMMARY OF ARGUMENTS..........................................................................................…8
ARGUMENTS ADVANCED..................................................................................................10
CONTENTION I - Yes, the adoption of defendant number 3 is valid as per
law……………………………………………………………………………………………10
1.1 The main objective of adoption is to secure spiritual benefit to the adopter, though the
secondary object is to secure an heir to perpetuate the adopter’s name……………………..10

1.2. There is an essential distinction between an alienation, partition and inheritance on


the one hand and adoption on the other……………………………………………….
…….11

CONTENTION II - No, the gift and the maintenance deed executed in favour of the other
two wives, his widowed daughter and his relative is not
valid…………………………………...13

2.1. The next question is whether the two gifts were binding on the family………………...14

2.2. The next question is whether Chenbasappa can execute a gift and maintenance deed in
favour of his widowed daughter i.e defendant 8……………………………………………..15

CONTENTION III- Yes, the execution of gift deed in favour of the plaintiff is valid as per
law……………………………………………………………………………………………16

PRAYER FOR RELIEF...............................................................................................17

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ABBREVIATIONS

¶ Paragraph
& And
§ Section
A.I.R. All India Reporter
Anr. Another
Art. Article
Assn. Association
Bom. Bombay
Ed. Edition
Etc. Etcetera
Id. Ibid
M.P. Madhya Pradesh
Mad. Madras
Ors. Others
Pg. Page
S.C. Supreme Court
S.C.C. Supreme Court Cases
S.C.R. Supreme Court Reporter
I.L.R. Indian Law Reporter
U.P. Uttar Pradesh
Vs. Versus
Vol. Volume

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INDEX OF AUTHORITIES

I. CONSTITUTION /STATUTES/ RULES REFERRED


 The Constitution of India.

II. TABLE OF CASES

S. NO. CASES CITATION P.NO.


1. Nagabhushanam v. Seshammagaru I.L.R. 1878 Mad. 180 8
2. Shamavahoo v. Dwarkadas Vasanji I.L.R. (1888) Bom. 202 11
3. Daulat Ram v. Ram Lal I.L.R. (1907) All. 310 11
4. Avdesh Kumar v. Zakaul Hassai I.L.R. [1944] All. 612 11
5. Chandramani v. Jambeswara AIR 1931 Mad550 12
6. Bhagwat Prasad Bahidar v. Debichand Bogra I.L.R. (1941) Pat. 727 12
7. Jinnappa Mahadevappa v. Chimmava I.L.R. 1935 Bom. 459 12

III. BOOKS
 Hindu Law of Religious and Charitable Trust, at p. 211 Mayne,
 Mulla, Hindu Law, LexisNexis, 22th Edn., 2016.
 Sarkar Sastri, Hindu law, Forgotten books, 2012

IV. DICTIONARIES
 Bryan A. Garner, Black’s Law Dictionary, (9th ed., 2009).

 P.R. Aiyar, The Law Lexicon, (2nd ed., 1997).

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V. WEBSITES REFERRED:

1 www.manupatra.com

2 www.scconline.com

3. www.indiakanoon.org

4. www.legalserviceindia.com

5. www.thebluebook.com

6. www.bhu.ac.in

7. www.muse.jhu.edu

8. www.oxforddictionaries.com

9. www.utpress.utoronto.ca

10. www.freepressjournal.in

11. www.webindia123.com

13. www.highcourtchd.gov.in/hclscc

14. www.legalservicesindia.com

15. www.indianlawcases.com

16. http://www.authorstream.com/

17. http://www.rishabhdara.com/

18. http://www.business-standard.com/

19. http://www.the-laws.com/

STATEMENT OF JURISDICTION

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The Hon’ble Supreme Court of India has the inherent jurisdiction to try, entertain and dispose
off the present case by virtue of Artcle 136 of the Constitution of India.

STATEMENT OF FACTS

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1. The responded here i.e. R. Rajappa and few other employees were fined by the water
supply appellant court for misconduct and a lot of sums were recovered from the
employees.

2. R. Rajappa and other employees filed a claim application under 33(c)(2) of Industrial
Dispute Act, 1947.

3. They alleged that that the fined imposed on them is violation of natural justice.

4. The board raised an objection to the tribunal that they are not an industry under
Industrial Dispute Act, 1947 Section 2(j).

5. So, the employees of the water supply are not workmen under definition 2(s) Of
Industrial dispute Act,1947.

6. The tribunal dismissed the contention of the board.

7. The board filed two writ petition in the Karnataka High Court, but, the High Court too
dismissed both the petition and held that the board is an industry under 2(j) of
Industrial Dispute Act,1947.

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ISSUES RAISED

ISSUE 1: WHETHER REGAL OR SOVEREIGN FUNCTION OF THE STATE TO FALL WITHIN

THE DEFINITION OF 2 (J) IDA, 1947?

ISSUE 2: WHETHER ESTABLISHMENTS NOT UNDERTAKEN FOR PRODUCTION OR

DISTRIBUTION OF GOODS, RUN WITHOUT PROFIT MOTIVE WHICH DOESN ’T RENDER

ANY MATERIAL SERVICE ARE INDUSTRIES ?

ISSUE 3: WHETHER THE BANGALORE WATER SUPPLY AND SEWERAGE BOARD IS AN

INDUSTRY?

SUMMERY OF ARGUMENTS

CONTENTION 1- NO, THE SOVEREIGN OR THE REGAL FUNCTION OF THE


STATE DOES NOT FALL WITHIN SEC 2(J) OF IDA,1947.

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In the case of Nagpur Corporation v its Employees 1, the issue was whether all the department
of Municipal Corporation are induced in the definition of industry?
Answering to the question Supreme court held the definition of the term industry under 2(j)
of IDA cannot include what are called the regal functions described as “primary and
inalienable functions of the state”2 though delegated to a corporation is necessarily excluded
from the purview of the definition3. Even here we may point out the inaptitude of relying on
the doctrine of regal powers. That has reference, in this context, to the Crown's liability in tort
and has nothing to do with Industrial Law. In any case, it is open to Parliament to make law
which governs the State's relations with its employees. Articles 309 to 311 of the Constitution
of India, the enactments dealing with the Defence Forces and other legislation dealing with
employment under statutory bodies may, expressly or by necessary implication, exclude the
operation of the Industrial Disputes Act, 1947. That is a question of interpretation and
statutory exclusion; but, in the absence of such provision of law, it may indubitably be
assumed that the key aspects of public administration like public justice stand out of the
circle of industry.

CONTENTION 2- No, establishment undertaken not for production or distribution of


goods or for rendering material service or for profit motive are not industries under 2(j)
of IDA,1947.4
In Management of Safardjung Hospital, Delhi v kuldip Singh 5 was held not to be an industry.
Kurji family hospital was also held not to be an industry because it was entirely charitable
institution carring on work of training, research and treatment.

In Dhanrajgiri Hospital v Workmen,6 It was held Dhanrajrgiri Hospital at Solapur was not an
industry because it was not carring on any economic activity in the nature of trade or
business. It was not rendering any material service by brining any element of trade or
business in its activity. The main activity of the hospital was imparting in nursing and beds
in the hospital are meant for practical training.

1
1960 SCR (2) 942
2
Ibid
3
Secretary, Madras Gymkhana Club vs Management Of The Gymkhana Club, 1968 SCR (1) 742
4
1960 SCR (2) 866
5
1971 1 SCR 177
6
(1975) 4 SCC 621

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CONTENTION 3- No, Bangalore water supply and sewerage board in not an industry
within definition 2(j) Of IDA.
It is humbly submitted that it has been well settled that the sovereign or regal functions of the
state cannot be said to fall under this definition.
We have so many judgments and decisions of the Supreme Court itself which sets the
precedent value. Mclnerny v. Secretary of State, K. Krishnamurthy v. State of A.P,
Abdul Sabir Khan v municipal council Bhandara, Om Prakash v Executive Engineer S.Y.L.
Canal Division Co, State of Gujrat v Deenaji Bidhaji Thakore, Management of hospitals,
Odisha v Their Workmen, Theyyam Joseph’s case.

ARGUMENT ADVANCED

CONTENTION 1- NO, THE SOVEREIGN OR THE REGAL FUNCTION OF THE


STATE DOES NOT FALL WITHIN SEC 2(J) OF IDA,1947.

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In the case of Nagpur Corporation v its Employees 7, the issue was whether all the department
of Municipal Corporation are induced in the definition of industry?
Answering to the question Supreme court held the definition of the term industry under 2(j)
of IDA cannot include what are called the regal functions described as “primary and
inalienable functions of the state”8 though delegated to a corporation is necessarily excluded
from the purview of the definition9. Even here we may point out the inaptitude of relying on
the doctrine of regal powers. That has reference, in this context, to the Crown's liability in tort
and has nothing to do with Industrial Law. In any case, it is open to Parliament to make law
which governs the State's relations with its employees. Articles 309 to 311 of the Constitution
of India, the enactments dealing with the Defence Forces and other legislation dealing with
employment under statutory bodies may, expressly or by necessary implication, exclude the
operation of the Industrial Disputes Act, 1947. That is a question of interpretation and
statutory exclusion; but, in the absence of such provision of law, it may indubitably be
assumed that the key aspects of public administration like public justice stand out of the
circle of industry.
Even here, as has been brought put from the excerpts of ILO documents, it is not every
employee who is excluded but only certain categories primarily engaged and supportively
employed in the discharge of the essential functions of constitutional government. In a
limited way, this head of exclusion has been recognised throughout.
In this case it was also observed ‘If a department of a municipality discharges many
functions, some pertaining to industry as defined in the Act, and others non industrial
activities, the predominant functions of the department shall be the criterion for the purpose
of the Act.10

1.1. What are the regal or sovereign functions of the state?

Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India,11 was the
historical case which had drawn the principle of sovereign and non sovereign functions of the

7
1960 SCR (2) 942
8
Ibid
9
Secretary, Madras Gymkhana Club vs Management Of The Gymkhana Club, 1968 SCR (1) 742
10
Supra note 1
11
5 Bom HC App 1 (A)

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Government while deciding the extent of liability and immunity of the State. The Supreme
Court of Calcutta held Government was not liable for anything done in exercise of sovereign
powers. The State maintains public paths, for the welfare of the general public and there is no
commercial object in it. So, laying public path and its maintenance are part of sovereign
functions of the State. In Mclnerny v. Secretary of State,12 the Calcutta High Court held that,
the Government was not carrying any commercial operations in maintaining a public path
and therefore was not liable for damages for the injury sustained by the plaintiff through
coming into contact with a post set up by the Government on a public road. A welfare State
has to maintain proper roads for the benefits of the general public. It is part of its sovereign
function. In K. Krishnamurthy v. State of A.P,13 the driver of a motor road roller negligently
struck the plaintiff down and his right hand fell under the front wheel. The driver did not stop
the engine forthwith.

The plaintiff claimed damages from the State for the permanent loss of his limb occasioned
by the rash and negligent act of their servant. The Andhra Pradesh High Court, held that the
making and maintenance of National Highways is the exclusive duty of the State, and not a
commercial function. Similarly, in the case of Abdul Sabir Khan v municipal council
Bhandara14 the octroi department of the Municipality is not an Industry.

Similarly in another case of Om Prakash v Executive Engineer S.Y.L. Canal Division Co. 15,
the question for determination was whether the irrigation department of the state government
can be termed as industry? It was held that merely the fact that water is supplied by charging
certain rates cannot warrant a finding that the state is indulging in trade or business activity. It
is kind of activity that cannot be left to private enterprise and therefore, this department is not
an industry under section 2(j).16

It was held in State of Gujrat v Deenaji Bidhaji Thakore, 17 That the irrigation department of
the state is not an industy under section 2(j) of IDA.

12
(1911) 38 ILR Cal 797.
13
1964 SCR (7) 410
14
1970 Lab IC 488(Bom)
15
(1985) I LLJ 16 (P&H)
16
ibid
17
(2003) III LLJ 630 ( Gujrat)

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In Management of hospitals, Odisha v Their Workmen, 18 it was held that “hospital run by
the government as part of the function is not an industry. Hospital run by State of
Odisha are places where persons can get treated. They are run as department of
Government. The mere fact the payment is accepted in respect of some beds cannot lead
to the inference that the hospital are run as a business in a commercial way. Primarily,
the hospital are ment to be free of service by the government to the patient without any
profit motive”.
In University of Delhi v Ramnath,19 it was held by Supreme Court that the work of imparting
education is more a mission and vocation than a profession of trade or business and therefore
university is not an industry.20
A blanket exclusion of every one of the host of employees engaged by government in
departments) falling under general rubrics like, justice, defence, taxation, legislature, may not
necessarily be thrown out of the umbrella of the :
Secon 2(j) uses words of very wide denotation, a line would have to be drawn in a fair and
just manner, so as to exclude some callings, services or undertakings. If all the words used
are given their widest meaning, all services and all callings would come within the purview
of the definition; even service rendered by a servant purely in a personal or domestic matter
or even in a casual way would fall within the definition. It is not and cannot be suggested that
in its wide sweep the word "service" is intended to include service howsoever rendered in
whatsoever capacity and for whatsoever reason. We must, therefore, consider where the line
should be drawn and what limitations can and should be reasonably implied in interpreting
the wide words used in Section 2.
Again in the case of Theyyam Joseph21 held that the function of the postal department are
part of sovereign function of the state and it is therefore not an industry within the definition
of 2(j) of IDA,1947.
Similarly, in Bombay Telephone Canteen Employees’ Association v UOI 22 this decision was
followed for taking the view that the Telephone Nigam is not an Industry.

18
(1972) 4 SCC 216
19
1964 SCR (2) 703
20
ibid
21
(1996) II LLJ 230
22
(1997) II LLJ 647

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The wide words used in Section 2(j) if applied without rational limitations, may cover
every bilateral activity even spiritual, religious, domestic, conjugal, pleasurable or
political.

2. No, establishment undertaken not for production or distribution of goods or for


rendering material service or for profit motive are not industries under 2(j) of
IDA,1947.23
In Management of Safardjung Hospital, Delhi v kuldip Singh24 was held not to be an industry.
Kurji family hospital was also held not to be an industry because it was entirely charitable
institution carring on work of training, research and treatment.
In Dhanrajgiri Hospital v Workmen,25 It was held Dhanrajrgiri Hospital at Solapur was not an
industry because it was not carring on any economic activity in the nature of trade or
business. It was not rendering any material service by brining any element of trade or
business in its activity. The main activity of the hospital was imparting in nursing and beds
in the hospital are meant for practical training.

Hidayatullah C. J., considered the facts of the appeals clubbed together there and held that all
the three institutions in the bunch of appeals were not industries. Abbreviated reasons were
given for the holding in regard to each institution, which we may extract for precise
understanding :

It is obvious that Safdarjung Hospital is not embarked on an economic activity which can be
said to be analogous to trade or business. There is no evidence that it is more than a place
where persons can get treated. This is a part of the functions of Government and the Hospital
is run as a Department of Government. It cannot, therefore, be said to be an industry.

The Tuberculosis Hospital is not an independent institution. It is a part of the Tuberculosis


Association of India. The hospital is wholly charitable and is a research institute. The
dominant purpose of the Hospital is research and training, but as research and training cannot
be given without beds in a hospital, the hospital is run. Treatment is thus a part of research

23
1960 SCR (2) 866
24
1971 1 SCR 177
25
(1975) 4 SCC 621

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and training. In these circumstances the Tuberculosis Hospital cannot be described as


industry.

The objects of the Kurji Holy Family Hospital are entirely charitable. It carries on work of
training research and treatment. Its income is mostly from donations and distribution of
surplus as profit is prohibited. It is, therefore, clear that it is not an industry as laid down in
the Act.
Even a cursory glance makes it plain that the learned Judge took the view that a place of
treatment of patients, run as a department of government, was not an industry because it was
a part of the functions of the government. We cannot possibly agree that running a hospital,
which is a welfare activity and not a sovereign function, cannot be an industry. Likewise,
dealing with the Tuberculosis Hospital case, the learned Judge held that the hospital was
wholly charitable and also was a research institute. Primarily, it was an institution for
research and training. Therefore, the Court concluded, the institution could not be described
as industry. Non sequitur. Hospital facility, research products and training services are surely
services and hence industry. It is difficult to agree that a hospital is not an industry. In the
third case the same factors plus the prohibition of profit are relied on by the Court. We find it
difficult to hold that absence of profit, or functions of training and research, take the
institution out of the scope of industry.

Although the facts of the three appeals considered in Safdarjung related only to hospitals with
research and training component, the bench went extensively into a survey of the earlier
precedents and crystallisation of criteria for designating industries. After stating that trade
and business have a wide connotation, Hidayatullah, C. J., took the view that professions
must be excluded from the ambit of industry; "A profession ordinarily is an occupation
requiring intellectual skill, often coupled with manual skill. Thus a teacher uses purely
intellectual skill, while a painter uses both. In any event, they are not engaged in an
occupation in which employers and employees cooperate in the production or sale of
commodities or arrangement for their production or sale or distribution and their
services cannot be described as material service".

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On similar lines, clubs or self service institutions or non-proprietary member club will not be
an industry according to Hospital Mazdoor Sabha Case as the clubs neither produce or
distribute goods nor renders material service to the community.
There are two leading case on the similar lines. The Cricket club of India v Bombay Labour
Union26 and Madras Gymkhana Club Employees’ Union v Management27.
The question was whether The Cricket club of India which was a member’s club and not a
proprietry club, although although it was incorporated as a company under the Companies
Act was an industry or not?
It was held that the club was a self service institution and not an industry and “it was wrong
to equate the catering facilities provided by the club to its members or their guests , with a
hotel. The catering facilities also was in the nature of self service by the clubs to its
members”.
Again, in Madras Gymkhana Case, this was a member’s not and not a proprietary club with a
membership of about 1200. Its object was to provide a venue for sports and games and
facilities for recreation and entertainment. It was running a catering service which was
providing food and refreshment not only generally but also for special occasion. It was held
that the club was member’s self service institution and not an industry.

The Madras Gymkhana Club, a blue-blooded, members' club has the socialite cream of the
city on its rolls. It offers choice facilities for golf, tennis and billiards, arranges dances,
dinners and refreshments, entertains and accommodates guests and conducts tournaments for
members and non-members. These are all activities richly charged with pleasurable service.
For fulfilment of these objects the club employs officers, caterers, and others on reasonable
salaries. Does this club become an industry ? The label matters little; the substance is the
thing. A night club for priced nocturnal sex is a lascivious 'industry'. But a literary club,
meeting weekly to read or discuss poetry, hiring a venue and running solely by the self-help
of the participants, is not. Hidayatullah C.J., in Gymkhana ruled that the club was not an
'industry'. Reason? 'An industry is thus said to involve cooperation between employer and
employees for the object of satisfying material human needs but not for oneself nor for
pleasure nor necessarily for profit'

26
AIR 1969 SC 276
27
AIR 1968 SC 554

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It is not of any consequence that there is no profit motive because that is considered
immaterial. It is also true that the affairs of the club are organised in the way business is
orgainsed, and that there is production of material and other services and in a limited way
production of material goods mainly in the catering department. But these circumstances are
not truly representative in the case of the club because the services are to the members
themselves for their own pleasure and amusement and the material goods are for their
consumption. In other words, he club exists for its members. No doubt occasionally strangers
also benefit from its services, but they can only do so on invitation of members. No one
outside the list of members has the advantage of these services as of right. Nor can these
privileges be bought. In fact they are available only to members or through members.

If today the club were to stop entry of outsiders, no essential change in its character visl-a-vis
the members would take place. In other words, the circumstances that guests are admitted is
irrelevant to determine if the club is an industry. Even with the admission of guests being
open the club remains the same, that is to say, a member's self-serving institution. No doubt
the material needs or wants of a section of the community is catered for but that is not
enough. This must be done as part of trade or business or as undertaking analogous to trade or
business. This element is completely missing in a members' club.

Can charity be 'industry' ? This paradox can be unlocked only by examining the nature of the
activity of the charity, for there are charities and charities. The grammar of labour law in a
pluralist society tells us that the worker is concerned with wages and conditions of service,
the employer with output and economies and the community with peace, production and
stream of supply. This complex of work, wealth and happiness, firmly grasped, will dissolve
the dilemma of the law bearing on charitable enterprises. Charity is free; industry is business.
Then how ? A lay look may scare; a legal look will see; a social look will see through a hiatus
inevitable in a sophisticated society with organizational diversity and motivational dexterity.

CONTENTION 3: No, Bangalore water supply and sewerage board in not an industry
within definition 2(j) Of IDA.
It is humbly submitted that it has been well settled that the sovereign or regal functions of the
state cannot be said to fall under this definition.

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We have so many judgments and decisions of the Supreme Court itself which sets the
precedent value. Mclnerny v. Secretary of State, K. Krishnamurthy v. State of A.P,
Abdul Sabir Khan v municipal council Bhandara, Om Prakash v Executive Engineer S.Y.L.
Canal Division Co, State of Gujrat v Deenaji Bidhaji Thakore, Management of hospitals,
Odisha v Their Workmen, Theyyam Joseph’s case.

In that light it is humbly submitted that when the irrigation department, postal department,
hospital carried out by the government for the poor without profit motive, maintaining of
public path, “A welfare State has to maintain proper roads for the benefits of the general
public. It is part of its sovereign function” as held in K. Krishnamurthy v. State of A.P by this
very court itself. The Bangalore water supply and sewerage board function is to provide
water to the subjects of the state and we all know the value of water and what will be the
repercussions if not provided with utmost responsibility by an responsible authority and in
this case only the government can be the one because in case this is given to private
individuals or organization they may provide the same facilities but the responsibility won’t
be the same towards the people and they can fall in to greed and do commercialization of
water. So, it can’t be left to a private party or organization as it’s one of the sovereign and
inalienable function of the state to provide water to its citizen. So, in the same line it is
humbly submitted that the function of Bangalore water supply should fall under the sovereign
or regal function of the state government and so it is not an industry.

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PRAYER FOR RELIEF

Wherefore, in the light of the facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed before this Hon’ble Court to may be pleased to adjudge
and declare that:

1. The appeal should be maintained and to held that the sovereign function are not to
fall under Section 2(j) of Industrial Dispute Act, 1947.
2. To held that the Bangalore Water Supply and The Sewerage board not an industry.

Or pass any other order which the Federal Court may deem fit in the light of Justice, Equity
and Good Conscience.

All of which is most humbly and respectfully submitted.

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PLACE- s/d Nitikesh Mahapatra


DATE- 5/10/2017 COUNSEL ON BEHALF OF THE APPELLANT

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