DR. A. T.

MARKOSE MEMORIAL 4TH NATIONAL MOOT COURT

COMPETITION, FEBRUARY 6th – 8th, 2015

MOOT PROBLEM

Mr. Kabir Khan & Others

v.
State of Pandora and Central Vigilance Commission

1. The Union of Hariyali is a South Asian country where quality wood is available and
is a leading exporter of plywood in the world. The State of Pandora in the Union of
Hariyali is considered as a hub for plywood companies. Almost all the topmost
plywood companies are having branches in Pandora state. The easy availability of
quality wood and cheap labour cost made the State of Pandora an attractive
destination for plywood companies.

2. Greenwood Inc. is a multinational company registered in USA having their

branches all over the world. In 2009, Greenwood Inc. decided to set up a joint venture
company in the Union of Hariyali. In 2010, Greenwood Inc. officials visited the Union
of Hariyali and entered into an agreement with Mayurwoods Ltd., an Indian Company
to establish a join venture project. As a result Particle Board Ltd. a new company was
established in the State of Pandora. This company concentrates on the production of
Faux Wood, a synthetic bio degradable wood which is a close substitute of natural
hardwood. Particle Board Ltd. mainly depends on recycled sawmill shavings and saw
dusts for the production of their product.

3. Particle Board Ltd. has registered under the Union of Hariyali laws. The promoters
of Particle Board Ltd. had purchased 10 acres of land from Mr. Kabir Khan, Member of
Parliament of Nimorah constituency. Nimorah is a place in the State of Pandora,
which is known for rubber products and other spices. This 10 acres of land, is a rubber
estate which was under the sole ownership of Mr. Kabir Khan.

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4. Mr. Kabir Khan, is the only son of late Shri Ilahi Muhammad Khan, who was a
prominent social reformer and pioneer in setting up various orphanages in the State of
Pandora. Shri Ilahi Khan held various positions in political institutions as well as
religious organisations. He also held the post of managing trusty of Sadiya Muslim
Orphanage. During his tenure as a managing trusty, he purchased, by spending his
own money, 10 acres of rubber estate in his name in the year 1990. Though he
purchased the rubber estate, he never took any profits from the estate, rather he
declared that all the profits will go to Sadiya Muslim Orphanage. From 1990 till his
death in 2009, the profits were given to the Sadiya Muslim Orphanage. This profit was
the main source of the day to day affairs of Sadiya Muslim Orphanage.

5. Mr. Kabir Khan, sold this 10 acres of land to Particle Board Ltd. in the year 2010. He
kept this transaction as a secret. When Particle Board Ltd. started their construction,
he informed the public that it is a plywood company. The construction site of the
manufacturing unit of Particle Board Ltd. is in an area, amidst more than 100 houses, a
playschool within 200metres in the south-eastern side, some farm-land, and most
importantly a rivulet flowing adjacent to this unit which is the main source of drinking
water for the inhabitants of Nimorah. This rivulet finally joins the river Tharangini,
which again is a major source of water supply for the whole district.

6. On 10th January 2009, the Ministry of Environment and Forests (MoEF), Hariyali
had appointed a committee headed by Prof. Ram Madhav to identify the ecologically
sensitive areas (ESA) in order to conserve and protect the Western Ghats. The said
committee had submitted its report and recommendations on 17th March 2010. The
Ram Madhav Committee had identified various ecologically sensitive areas all over the
country and particularly in the State of Pandora. The place Nimorah was also
considered by Ram Madhav Committee, however it was not listed as an ecologically
sensitive area.

7. On 22nd May, 2010 the Government of State of Pandora had appointed a High Level
Expert Group headed by M G Nair to study about the practical concerns which may
arise while implementing the recommendations of Ram Madhav Committee. M G Nair
Committee had identified that certain areas, though not identified as ecologically

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sensitive area by Ram Madhav Committee, is also necessary and required to be
included in the list of ecologically sensitive area. One such place was Nimorah.

8. On 8th March 2011, Mr. Kabir Khan met with a serious accident and he was in coma
stage. After several days of treatment he recovered from coma stage but he used to
lose his consciousness frequently. On 20th March, 2011, Adv. Hussain Noor, the private
secretary of Mr. Kabir Khan visited him in the hospital. During the conversation Mr.
Kabir Khan lost his consciousness several times and they continued their discussion
irrespective of warning from doctors. Suddenly Mr. Kabir Khan lost his
consciousnesses and started talking. During such revelation, he narrated that he had
transferred 10 acres of land to Particle Board Ltd. for setting up their company. Also he
stated that, the Particle Board Ltd. had obtained the necessary licenses and other
permissions from various agencies of government in an illegal manner with his help.
Further he admitted that he is having a large number of shares in Mayurwoods Ltd
Company. All these discussions were recorded by Adv. Hussain Noor through his I
phone 6.

9. On 25th March, 2011 Adv. Hussain Noor, sent an email to Central Vigilance
Commission narrating all the matters, on the basis of disclosure made by Mr. Kabir
Khan, when he was unconscious along with the recorded video. On the basis of this
email, on 30th March, 2011 the Central Vigilance Commission had directed the Central
Bureau of Investigation to conduct an enquiry.

10. On 5th April, 2011 Mr. Ismail Muhammad, the manager of Sadiya Muslim
Orphanage had approached the CVC with a petition under Right to Information Act,
2005. The CVC had provided all the details regarding this case including a hard copy
of email and recorded video which was sent by Adv. Hussain Noor. Mr. Ismail
Muhammad approached the Hon’ble High Court of Pandora for declaring the transfer
of 10 acres of rubber estate to Particle Board Ltd. as invalid. He maintains that, the
object of said 10 acres of rubber estate was for providing financial assistance to Sadiya
Muslim Orphanage. Thus any transfer that affects the conversion of land into any
other purpose than rubber estate would affect the interest of Sadiya Muslim
Orphanage.

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11. On 10th April, 2011 Mr. Kabir Khan approached the Hon’ble High Court of Pandora
challenging the CBI probe into the matter of establishment of Particle Board Ltd. Mr.
Khan argues that, the CVC has no authority to direct for a CBI enquiry and such a
move has some political agendas. He also argued that, the disclosure of his words
which he made while he was unconscious and the recorded video would amount to
violation of his right to privacy.

12. On 5th May, 2011, a group of people attacked Adv. Hussain Noor and as a result he
got severely injured. This attack resulted in irreparable injury to his legs and hands.
According to him the attack was because of the disclosure he made to the CVC and
the CVC had disclosed his name and other details which was the main reason for such
an unfortunate event. Due to the sufferings, Adv. Hussain Noor has approached the
Hon’ble High Court of Pandora claiming damages against CVC on the ground of
alleged violation of his rights under Right to Information Act, 2005 and Whistle
Blower Protection laws in Hariyali.

13. The matter got wide public attention and as a result there was widespread protest
against the construction of Particle Board Ltd. The protesters formed an action
council, i.e. Environmental Protection Forum (EPF) and started campaigns against the
construction of the proposed company. One of the officials of Particle Board Ltd. had
disclosed to the leaders of EPF that, the proposed plan includes construction of an
underground storage and usage of 4 tonnes of formaldehyde.

14. The EPF had approached the High Court of Pandora through a Public Interest
Litigation, against the construction of proposed Particle Board Ltd. According to the
petitioners, the said Particle Board Ltd. would cause severe environmental damages.
They pointed out that, last year monsoon was terrifying for the residents as the water
level of the rivulet was drastically raised and most of the houses near the river let
along with the construction site were submerged and people had to stay out from their
homes for more than 3 days. Hence there is a potential danger in the coming
monsoons. The Hon’ble High Court of Pandora has directed the State government to
consider the implementation of M. G. Nair Committee recommendations and
disposed the petition accordingly.

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15. On the basis of directions from the Hon’ble High Court, the Government of
Pandora had taken various initiatives for implementing the M. G. Nair Committee
recommendations. Most important step was the enactment of ‘The Management of
Ecologically Fragile Areas Act, 2012’. One of the most important provisions in this Act
is Section 4.

Section 4. Prohibition of Activities

1) Not withstanding anything contained in any other law for the time being in
force, no person or other entity shall carry the following activities in an
Ecologically Fragile Areas listed under Schedule I of the Act -

(a) Construction of any building, house or structure using cement and iron.

(b) Modification or improvement of any existing building or structure using

cement and iron.

[Provided that the maintenance of existing building or structure using cement

and iron can be done if a permission has obtained prior to carrying out of such
maintenance from the competent authority constituted in this behalf.]

2) Nothing contained in this section shall apply to any activities, if performed

by:

(a) the Central Government or agencies, undertakings owned and controlled by

the Central Government for Defence purposes;

(b) the Central Government or any State Government, statutory corporation,

public body or Government undertaking for public purposes.

16. Nimorah was one of the places which were listed as an Ecologically Fragile Area
under Schedule I of the Management of Ecologically Fragile Areas Act, 2012. Thus the
State Level Environment Impact Assessment Authority of Pandora has cancelled the
Environmental Clearance Certificate issued by them to the Particle Board Ltd.
Aggrieved by this cancellation the Particle Board Ltd. had approached the Hon’ble
High Court of Pandora through a writ petition. The petitioner, Particle Board Ltd. had

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challenged the constitutional validity of Section 4 of the Management of Ecologically
Fragile Areas Act, 2012 on various grounds including the violation of their fundamental
rights.

17. The Hon’ble High Court of Pandora, for the sake of convenience decided to hear
all the cases together and framed the following issues for hearing:

1. Whether the Central Vigilance Commission can direct the CBI to investigate on the
matters relating to the establishment of Particle Board Ltd.?

2. Whether the transfer of 10 acres of land by Mr. Kabir Khan to Particle Board Ltd. is
valid?

3. Whether the disclosure of statements made in unconscious stage and its recorded
video would violate the right to privacy of Mr. Kabir Khan?

4. Whether Section 4 of the Management of Ecologically Fragile Areas Act, 2012 is

unconstitutional?

5. Whether Adv. Hussain Noor is entitled to get any remedy for disclosing his name
and other details?

Note:

1. The laws in Hariyali and Republic of India are in pari materia except ‘The
Management of Ecologically Fragile Areas Act, 2012’.

2. The Counsels representing both sides are required to address the issues that are
specifically mentioned in the moot problem. They have to argue for the Appellants i. e.
Mr. Kabir Khan; Adv. Hussain Noor; Particle Board Ltd.; and Mr. Ismail Muhammad
or for the Respondents i. e. State of Pandora and Central Vigilance Commission (also
Mr. Kabir Khan and Particle Board Ltd. for second issue).