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Team Code: 819

8th KIIT INTRA MOOT COURT COMPETITION, 2016

BEFORE THE HON'BLE HIGH COURT OF BORISSA

ALL BORISSA AD-HOC PRIMARY TEACHERS ASSOCIATION

(ABAPTA)........................................ (PETITIONER)

V.

STATE OF BORISSA...................................................... (RESPONDENT)

ON SUBMISSION TO HONBLE HIGH COURT, BORRISA

26THMARCH, 2016

MEMORIAL FOR THE PETITIONER

COUNSEL APPEARING ON BEHALF OF THE PETITIONER


8th KIIT INTRA MOOT COURT COMPETITION, 2016

TABLE OF CONTENTS

LIST OF ABBREVIATIONS4

INDEX OF AUTHORITIES.................................................................................................... 5

STATEMENT OF JURISDICTION........................................................................................ 9

STATEMENT OF FACTS .................................................................................................... 10

STATEMENT OF ISSUES ................................................................................................... 11

SUMMARY OF ARGUMENTS ........................................................................................... 12

ARGUMENTS ADVANCED.............13

1. THE PROCEEDINGS IS MAINTAINABLE IN THE HIGH COURT OF


BORISSA.
A. Presence of cause of action13
B. Locus standi of the petitioner.14
C. Alternative remedies not a bar14
2. THE ACTIONS OF THE POLICE AUTHORITY WERE UNCALLED FOR
AND ARBITRARY.
A. There was no situation of public disorder, hence no requirement of
immediate prevention or speedy remedy15
B. The restraint exercised was not reasonable lest minimal...16
3. THE STATE IS VICARIOUSLY LIABLE FOR THE UNJUSTIFIED ACTS
OF THE POLICE OF BORISSA.
A. Rule of vicarious liability.18
B. No defence of sovereign immunity on the part of the state of Borissa.19

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4. THE STATE IS COMPLETELY NEGLIGENT IN PURSUIT OF ITS


ACTIONS AND THE DEFENCE OF DOCTRINE OF CONTRIBUTORY
NEGLIGENCE WOULD NOT STAND.
A. Breach of a legal duty to exercise due care on the part of the police officials
towards the sitting members of ABAPTA22
B. The doctrine of contributory negligence will fail, making the state absolutely
liable..23
PRAYER25

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LIST OF THE ABBREVIATIONS

& And
Paragraph
A.I.R All India Reporter
ALL Allahabad
A.C. Appeal Cases
Anr. Anothers
Art. Article
ABAPTA All Borissa Ad-Hoc Primary Teachers Association
Cal Calcutta
CrPC Code of Criminal Procedure
Co. Corporation
Del Delhi
Dr. Doctor
Ed. Edition
Engg. Engineering
Etc. Etcetera
FC Federal Court
Govt. Government
H.L. House of Lords United Kingdom (UK)
HCA High Court of Australia
Honble Honourable
i.e. That is
IPC Indian Penal Code
KB Kings Bench
Ltd. Limited
Mad Madura
M.P. Madhya Pradesh
ORI Orissa
Ors. Others
P&H Punjab and Haryana
Pg. Page
Pvt. Private
QB Queens Bench
Raj. Rajasthan
SCC Supreme Court Cases
Supp. Supplementary
SCR Supreme Court Reports
SC Supreme Court of India
Sec. Section
UOI Union of India
v. Versus
Vol. Volume

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INDEX OF AUTHORITIES

LEGISLATIONS REFERRED

CODE OF CRIMINAL PROCEDURE, 1973


INDIAN PENAL CODE, 1860
THE CONSTITUTION OF INDIA, 1950
THE POLICE ACT, 1861

JUDICIAL PRECEDENTS

A
1. 1Asiatic Engg. Co. v. Achhru Ram, AIR 1951 ALL 746
.
B
2. 2Bokaro and Ramgur Ltd. v. State of Bihar, AIR 1963 SC 516, 518
.
3. 3 Babulal Parate v. State of Maharashtra, AIR 1961 SC 884
.
C
4. 4Calcutta Gas v. State of West Bengal, AIR 1962 SC 1044
.
5. 5 Chairman Railway Board v. Chandrima Das, AIR 2000 SC 988
.
D
6. 6Dr. Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740
.
7. 7 Donoghue v. Stevenson, (1932) A.C.562 (H.L.)
.

I
8. 9Indrajeet Barua v. The State of Assam & Anr., AIR 1983 Delhi 513
.
J
9. 1Jay Lakshmi Salt Works(Pvt.) Ltd. v. State of Gujarat, (1994) 4 SCC 1
0
.
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K
10. 1Kishorilal v. Chairman Employees State Insurance Corporation, AIR 2007 SC
11819
.
L
11. 1Laughter v. Pointer, (1826) 108 ER 204
2
.
M
12. 1Mathuranayagam Pillai v. Municipal Council, Madura, AIR 1937 Mad 152
3
.
13. 1Maharaja Kishangarh Mills Ltd. v. Chairman Employees State Insurance Co.,
4AIR 2007 SC 1819
.
14. 1M.C. Mehta v. Union of India, 1987 1 SCC 395
5
.
N
15. 1Nilabati Behera v. State of Odisha, AIR 1993 SC 1960
6
.
16. 1Nagendra Rao & Co. v. State of A.P., AIR 1994 SC 2663
7
.
O
17. 1Om Prakash Srivastava v. UOI & Anr., (2006) 6 SCC 207
8
.
18. 1Om Kumar v. UOI, AIR 2000 SC 3689
9
.
P
19. 2Poonam Sharma v. UOI, AIR 2003 Del 50
0
.
20. 2Poonam Verma v. Ashwin Patel, AIR 1996 SC 2111
1
.
21. 2Peoples Union for Democratic Rights v. State of Bihar, AIR 1987 SC 355
2
.

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22. 2Prasar Bharti Broadcasting Co. Of India v. Debyajoti Bose, AIR 2000 Cal 43
3
.
23. 2Peninsular & Oriental Steel Navigation Co. v. Secretary for State of India
4(1869) 5 Bom HCR, App
.
R
24. 2Ramlila Maidan Incident v. Home Secretary, UOI & Ors., (2012) 5 SCC 1
5
.
25. 2Rudal Shah v. State of Bihar, AIR 1983 SC 1086
6
.
S
26. 2S.Rangarajan v. Jagjivan Ram, (1989) 2 SCC 574
7
.
27. 2Superitendent, Central Prision v. Lohia, AIR 1960 SC 633
8
.
28. 2State of Punjab v. O.G.B. Syndicate, AIR 1964 SC 669
9
.
29. 3State of Punjab v. Kalia, AIR 1969 P&H 172
0
.
30. 3Sitaram v. Santanuprasad, (1966)3 SCR 527
1
.
31. 3State of Rajasthan v. Vidyawati, AIR 1962 SC 993
2
.
32. 3State of A.P. v. Challa Ramkrishna Reddy, AIR 2000 SC 2083
3
.
V
33. 3Vidya Devi v. M.P. State Road Transport Co., AIR 1975 MP 89
4
.

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E-RESOURCES

www.manupatra.com
www.westlaw.com
www.scconline.com
www.jstor.org

BOOKS REFERRED

Halsburys Laws of India, vol 29 (1) 2008 Ed.


Commentary on the Constitution of India, Durga Das Basu, 8th vol, 2011.
Ratanlal Dhirajlal, The law of Torts, 26th Ed. 2010, Justice G.P. Singh.
Indian Constitutional Law, M.P. Jain, 2015, 7th Ed.
V.N. Shuklas Constitution of India, 12th Ed., Mahendra Pal Singh.
R.V. Kelkars Criminal Procedure, Dr. K.N. Chandrashekhar Pillai, 5th
Ed.,2008.
Ramaswamy Iyers The Law of Torts, 10th Ed.,2010.
Ratanlal Dhirajlal, Criminal Procedure, 20th Ed., 2012.

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STATEMENT OF JURISDICTION

ABAPTA . (PETITIONER)

V.

STATE OF BORISSA.. (RESPONDENT)

The petitioner has approached the Honble High Court of Borissa claiming compensation and
damages against the Government of Borissa under Art. 300 (1) of The Constitution of India
under the common law principle of vicarious liability. The petitioner has approached this
Honble High Court under Art.226 for the enforcement of fundamental rights. The parties
shall accept any judgment of the court as final and binding upon them and shall execute in its
entirety and good faith.

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STATEMENT OF FACTS

1. Relay hunger strike- All Borissa Ad-hoc Teachers Association(ABAPTA), (a


society registered under society registration act), sought permission from the police
commissioner of Borissa for organising a relay hunger strike near the State Assembly
demanding regularization of 1500 such Ad-hoc teachers. The police granted a
conditional no objection certificate.
Further they started sitting on the strike from 5th October, 2015. After four days it was
observed that the leader of the opposition came before the dharna place and
mobilized them against the ruling party.

2. Prohibitory Order-further to the incident, permission was withdrawn and a


prohibitory order was imposed under Sec.144 of CrPC, 1973. After that the police
commissioner came before the agitating teachers and tried to convince the leaders and
the sitting teachers to withdraw the hunger strike, but the talks failed.

3. Crackdown at night-on 10th October, 2015, there was a crackdown at night. The
agitating teachers were asked to leave at midnight itself and police even evicted the
sleeping persons forcibly by caning and use of tear gas etc. As a result it led to injuries
to number of agitating teachers.

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STATEMENT OF ISSUES

1. THE PROCEEDINGS IS MAINTAINABLE IN THE HIGH COURT OF


BORISSA.
A. Presence of cause of action
B. Locus standi of the petitioner
C. Alternative remedies not a bar

2. THE ACTIONS OF THE POLICE AUTHORITY WERE UNCALLED FOR AND


ARBITRARY.
A. There was no situation of public disorder, hence no requirement of
immediate prevention or speedy remedy.
B. The restraint exercised was not reasonable lest minimal.

3. THE STATE IS VICARIOUSLY LIABLE FOR THE UNJUSTIFIED ACTS OF


THE POLICE OF BORISSA.
A. Rule of vicarious liability.
B. No defence of sovereign immunity on the part of the state of Borissa.

4. THE STATE IS COMPLETELY NEGLIGENT IN PURSUIT OF ITS ACTIONS


AND THE DEFENCE OF DOCTRINE OF CONTRIBUTORY NEGLIGENCE
WOULD NOT STAND.
A. Breach of a legal duty to exercise due care on the part of the police officials
towards the sitting members of ABAPTA.
B. The doctrine of contributory negligence will fail, making the state
absolutely liable.

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SUMMARY OF ARGUMENTS

1. THE WRIT PETITION FILED UNDER ART.226 OF THE CONSTITUTION OF


INDIA IS MAINTAINABLE IN THE HIGH COURT OF BORISSA.

The present case is maintainable in the Honble High court of Borissa approached under
Art.226 of the Indian Constitution as a writ petition and awarding of compensation and
damages. It is the duty of the state to enforce fundamental right to its citizens whenever and
wherever there is a violation.

2. THE ACTIONS OF THE POLICE AUTHORITY WERE UNCALLED FOR AND


ARBITRARY.
The actions of the police were not reasonable under the given circumstances. There was no
such emergency of public disorder that it would call for such actions and speedy remedy. The
actions of the police authority were in violation of the fundamental rights even in liberal sense.

3. THE STATE IS VICARIOUSLY LIABLE FOR THE UNJUSTIFIED ACTS OF THE


POLICE OF BORISSA.
The state of Borissa is to be held vicariously liable under Art. 300(1) for the unjust actions of
the police officials, the police being the functionary and an executive wing of the state
government. The state government and police officials establishes the relationship required
for the rule of vicarious liability to operate and the violation of fundamental rights also
suspends the defence of sovereign immunity.

4. THE STATE IS COMPLETELY NEGLIGENT IN PURSUIT OF ITS ACTIONS


AND THE DEFENCE OF DOCTRINE OF CONTRIBUTORY NEGLIGENCE
WOULD NOT STAND.
ABAPTA is not contributory negligent in the present case. It is negligent on the part of the
police officials to undertake such actions. There was breach of duty on the part of the police
officials to take due care regarding the sitting members of ABAPTA. Thus, this negligent
actions renders the state liable under the concept of absolute liability.

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ARGUMENTS ADVANCE

1. THE WRIT PETITION FILED UNDER ART.226 OF THE CONSTITUTION OF


INDIA IS MAINTAINABLE IN THE HIGH COURT OF BORISSA.

The writ jurisdiction of the High Court flows from the Constitution of India under Art. 226.
The powers under Art. 226 confer a discretion of a most extensive nature on the High
Courts.1It is submitted that the writ petition is thus maintainable against the Govt. of Borissa,
which is a party to the suit under Art.300 (1) on the following grounds:

A. Cause of Action

The expression "cause of action" has acquired a judicially settled meaning. In the restricted
sense "cause of action" means the circumstances forming the infraction of the right or the
immediate occasion for the reaction.2 'Cause of action' has also been taken to mean that
particular act on the part of the defendant which gives the petitioner his cause of complaint,
or the subject matter of grievance founding the action, not merely the technical cause of
action.3

It is Prima Facie evident from the fact sheet that there was an infraction of the fundamental
rights enshrined under Art.21 and Art.19(1)(a) and 19(1)(b) by the state authority. The
particular act on the part of the state authority of unreasonably withdrawing the permission to
ABAPTA to hold a Relay Hunger Strike and imposition of prohibitory order under s.144
wantonly violated their right to Freedom of Speech and Expression under Art. 19(1)(a) and
the right to assemble peaceably and without arms under Art.19(1)(b).That coupled with a
police crackdown at night where sleeping persons were evicted forcibly by caning and use of
tear gas, etc. due to which many of them also received injuries; blatantly infracted their right
to life and personal liberty under Art. 21. The violation of these basic human and fundamental
rights, forms sufficient subject matter of grievance giving ABAPTA sufficient cause of action
in the present petition.

1
Asiatic Engg. Co. v. Achhru Ram, AIR 1951 All 746.
2
Om Prakash Srivastava v. Union of India and Another, (2006) 6 SCC 207.
3
Halsburys Laws of England (Fourth Edition).
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B. Locus Standi of ABAPTA.

A petitioner should have legal standing to file a writ petition.4 A petition could be filed by
a person who suffered infraction of his rights and was an aggrieved person.5 Here, in the
present petition, the fundamental rights of the agitating teachers have been infringed by the
state authority and it can be clearly said that the members of ABAPTA are an aggrieved party.
Ordinarily a person can approach the High Court under Art. 226 to enforce his legal right, or
when he has sufficient interest in the subject-matter.6Hence, the ABAPTA clearly has a Locus
Standi in the present petition before the High Court.

C. Alternative Remedies not a bar

The existence of an adequate alternative legal remedy is not a bar to the invocation of the
High Courts jurisdiction under Art. 226 when relief is sought in case of infringement of a
fundamental right.7 Thus, though the ABAPTA can take recourse in claiming damages from
the state on the basis of the tortious acts of its servants, yet it cannot be denied the remedy
available in public law from the High Court under Art.226. This stand has been proposed by
the Supreme Court in the precedent setting Rudal Shah v. State Of Bihar8 as well i.e.
however, it cannot be understood as laying a law that in every case of tortious liability
recourse must be had to a suit. When there is negligence on face of it and infringement of Art.
21, it cannot be said that there will be any bar to proceed under Art. 226 of the Constitution.
Hence the present petition is maintainable notwithstanding an alternative legal remedy.

4
Prasar Bharati Broadcasting Corpn. Of India v. Debyajoti Bose , AIR 2000 Cal 43.
5
Bokaro and Ramgur Ltd. V. State Of Bihar, AIR 1963 SC 516,518.
6
Calcutta Gas v. State Of West Bengal, AIR 1962 SC 1044.
7
Himmat Lal v. State Of Madhya Pradesh, AIR 1954 SC 403.
8
AIR 1983 SC 1086.
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2. THE ACTIONS OF THE POLICE AUTHORITY WERE UNCALLED FOR AND


ARBITRARY

The rules of justice and fair play require that State action should neither be unjust nor unfair,
lest it attracts the vice of unreasonableness, thereby vitiating the law which prescribed that
procedure and, consequently, the action taken thereunder.9 The state functionary in this case
resorted to capricious and oppressive acts which were uncalled for on the following grounds.

A. There was no situation of Public Disorder, hence no requirement of immediate


prevention or speedy remedy.

It is contended on behalf of the petitioners that the ABAPTA was sitting on relay hunger strike
peacefully in continuation for four days. If ABAPTA would have decided to strike or create
a riotous situation; it would not have peacefully waited for so long. Even in this backdrop, the
Govt. withdrew the permission and imposed a prohibitory order under Sec.144 CrPC. The
anticipated danger should not be remote, conjectural or far-fetched.10 There was no justifiable
reason as to why such steps were taken. Even after that, the assembly continued as a peaceful
one and suddenly there was a police crackdown at midnight. As a reasonable and prudent
man, anyone would expect the assembly to be tired after fasting for four days on end and
expect them to be passive and resting at that hour of night. It is even evident from the
factsheet11 that many of them were sleeping. Such a sleeping and reposing crowd could not
be possibly termed to be unlawful and hence no situation of Public disorder nor any
anticipation of it could be made out. Absence of 'public order' is an aggravated form of
disturbance of public peace which affects the general current of public life. Any act which
merely affects the security of others may not constitute a breach of 'public order'.12 In this
situation the slacking crowd were not even affecting the general current of public life lest
affecting the security of others. Hence imposing restriction on them just on a mere assumption
of possibility of breach of public disorder is needless. The language of Sec.144 is somewhat
different. The test laid down in the Section is not merely 'likelihood' or 'tendency'. The section
says that the magistrate must be satisfied that immediate prevention of particular acts is

9
Ramlila Maidan Incident Vs.Home Secretary, Union of India (UOI) and Ors., (2012) 5 SCC 1.
10
S. Rangarajan v. Jagjivan Ram (1989) 2 SCC 574.
11
4, Moot Proposition.
12
Dr. Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740.
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necessary to counteract danger to public safety etc.13 The Fundamental Rights could not be
controlled on hypothetical and imaginary considerations.14 Therefore, from the aforesaid
contentions it is unambiguous that there was no real situation for which immediate prevention
or speedy remedy was desirable. The authorities acted out of mere possibility

B. The restraint exercised was not reasonable lest minimal.

Any action taken by a public authority which is entrusted with the statutory power has,
therefore, to be tested by the application of two standards - first, the action must be within the
scope of the authority conferred by law and, second, it must be reasonable.15 Though the
police authority were backed by the sanction of Sec.144 CrPC, yet they acted outside the
scope of their authority when they exercised their power negligently on an assembly which
did not require the amount of force that the executives used for their dispersal. Moreover,
there was no action as such on part of the agitating members of ABAPTA which created an
urgent and emergent situation for the police authorities to act so recklessly. Hence their
actions were unreasonable as well. These powers are, however, exercisable with safeguards.
These powers though providing for use of force, also provided that the force used has to be
minimum force necessary for discharging or dispersing the assembly.16 The use of force by
the police was thus in contravention of this minimal restraint theory and on contrary can be
held as an act of brutality and inhumane attitude towards the assembly. Such restraint should
not be allowed to exceed the constraints of the particular situation either in nature or in
duration.17 A restriction should strike a proper balance between the freedom guaranteed by
any of the clauses and the social control, so that the freedom is limited only to the extent
necessary to protect society of which a citizen is only a part.18 Moreover, there was no prior
warning issued as regards to this crackdown. It is evident that the teachers had not been
informed about such action because in that case they would have taken some precautionary
measures or would have tried to evacuate the place peacefully. Even if they would not have
evacuated, they could have tried to have another round of talks with the concerned authority.
But it appears from the fact sheet that no such warning was issued and hence the actions of

13
Babulal Parate v. State of Maharashtra, AIR 1961 SC 884.
14
Superintendent, Central Prision v. Lohia, AIR 1960 SC 633.
15
Ramlila Maidan Incident Vs.Home Secretary, Union of India (UOI) and Ors., (2012) 5 SCC 1.
16
Indrajit Barua v. The State of Assam and Anr , AIR1983Delhi513.
17
Ramlila Maidan Incident Vs.Home Secretary, Union of India (UOI) and Ors., (2012) 5 SCC 1.
18
Om Kumar v. UOI, AIR 2000 SC 3689.
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the police were arbitrary. It was expected of the Police to make elaborate, adequate and precise
arrangements to ensure safe eviction of such large number of persons, that too, at midnight.
The fundamental emphasis is on prevention of situation which would lead to disturbance of
public tranquillity, however, action proposed to be taken should be one which itself is not
likely to generate public disorder and disturb the public tranquillity. It should be preventive
and not provocative. The Police action in the present case led to a terror in the minds of
members of the assembly and finally the untoward incident of their receiving injuries from
the police actions. A sleeping crowd clearly cannot be included within the bracket of an
unlawful category.

Thus this is in clear transgression of the most cherished rights enshrined on them by Art. 21
as well as trespass into other Fundamental Rights of peaceful assembly and freedom of Speech
and Expression under Art. 19(1(a) and 19(1)(b) respectively.

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3. THE STATE IS VICARIOUSLY LIABLE FOR THE UNJUSTIFIED ACTS OF THE


POLICE OF BORISSA.

The state of Borissa is held responsible for the unreasonable actions of the police of the said
state under the common law principle of vicarious liability. The actions of the police are clear
from the factsheet which renders the state liable.19 The expression vicarious liability
signifies the liability that the defendant may incur the benefit of, as a result of negligence or
other wrongful acts of the third persons such as employees20, agents, partners, children or
defined relationship with the defendant. Rule of law requires21 that the responsibility and the
obligations of the government must be the same as imposed on others by the government
under same conditions.22

A. Rule of vicarious liability.

The constitution under Art.300 provides that Government of India and a Government of a
state may sue or be sued in relation to their respective affairs in the like cases as the Union of
India and the corresponding province or Indian state might sue or be sued if the constitution
has not been enacted.23 The article provides that the Union of India and the government of
states shall be a juristic personality24 for purpose of suits and proceedings. It commits affairs
not by itself but through its functionaries. Hence as it gives the consent to being sued in the
courts of law,25 the interpretation includes the common law principle of vicarious liability.
Doctrine of vicarious liability is based on the legal principle qui facit per alium facit per se
stating another person acting on your behalf. The rule is usually stated thus: a master is liable
for a tort committed by his servant in the course of the latters employment.26 It involves two
points, first that the relationship of master and servant exists between them, and second, a tort
is committed by the servant in the course of his employment. A master is not responsible for
the negligence of other wrongful act of his servant simply because it is committed at a time
when the servant is engaged on his masters business. It must be committed in the course of

19
4, Moot Proposition.
20
State of Punjab v. Kalia. AIR 1969 P&H 172
21
Democracy, equality and Freedom, K.K.Mathew, 179(Upendra Baxi Ed.)
22
Democracy, equality and Freedom, K.K.Mathew, 179(Upendra Baxi Ed.)
23
Kishangarh v state of Rajasthan, AIR 1953 Raj 88.
24
State of Punjab v O.G.B syndicate, AIR 1964 SC 669
25
Commentary on Constitution of India, Durga Das Basu 9543 (8TH ed.,2011)
26
Laugher v. pointer
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that business so as to form a part of it and not merely coincide with it.27 The relationship of
master and servant is based on test of control or authority and which arise under certain set of
facts which are distinct in different cases.

In the present situation, the state is held liable for the actions of the police; it being a
functionary of the state. The police force is an instrument for the prevention and detection of
crime.28 The force consists of such number of officers and is constituted in such a manner as
the state government may decide from time to time. The constitution gives power to the state
government to act legislatures which may regulate the recruitment, and conditions of service
of persons appointed, to the public services and post in connection with the affairs of the union
29
or the state. The entire police establishment is considered to be one police force and is
regulated under the state government from time to time. The pay and all other conditions of
service of members of the subordinate rank shall be determined by the state government ;30
hence, establishing a relationship of employer and employee and making the state government
fall under the ambit of being liable vicariously if the police commits a tortious act in the course
of its employment.

B. No defence of sovereign immunity on the part of the state of Borissa.

The defence of sovereign immunity would not stand in the present case because of the gross
violation of fundamental rights being evident from the factsheet31. The affirmation of
sovereign functions gives the ground to the state for pleading such immunity. But the
difference of sovereign and non- sovereign functions sublimes when there is an infringement
of fundamental rights by the state and so the defence of sovereign immunity evades. However
when it is established that the police authorities fired their weapons without provocation on
people who were not guilty of any unlawful conduct, there was violation of fundamental rights
to life and the state was held liable.32 It was held that the concept of sovereign functions ends
when Art. 21 of the constitution begins.33

27
Sitaram v santanuprasad, 1966 3 SCR 527.
28
Preamble, Police Act 1861.
29
Art.309, The Constitution of India.
30
Sec.2, Police Act 1861.
31
4, Moot Proposition.
32
Peoples Union for Democratic Rights v. State of Bihar, AIR 1987 SC 355.
33
Chairman railway board v Chandrima das AIR 2000 SC 988.
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In Nagendra Rao & Co. v. State of A.P.34, the determination of vicarious liability of the state
being linked with the negligence of its officer, if they can be sued personally for which there
is no dearth of authority, there is no rationale for the proposition that even if the officer is
liable the state cannot be sued.

There should be wide interpretation of constitutional provisions in granting compensations to


the victim who suffered harm owing to the unlawful conduct of the servants of the government
regardless of the sovereign nature of the functions. Under the constitutional scheme, there is
no application of sovereign immunity for the contravention of fundamental rights and
therefore is no defence to the constitutional remedy under Art. 32 and Art. 226 of the
constitution35.

The only practicable mode of remedy for the enforcement of the fundamental rights of
ABAPTA may be the award of compensation or else the enforcement of fundamental rights
would remain in paper itself as a mere say.

It has been stated that there is no justification in principle or in public interest that the state
should not be held vicariously liable for the tortious acts of its servant36. The actions of the
police at night grossly violated the fundamental rights of the agitating teachers under Art. 21
of the constitution, which is the most protected and the supreme right of an individual.

No civilised system can permit the executive to play with the people of its country and claim
that it can act in any manner as it is sovereign. No constitutional system can either on state
necessity or public policy, condone negligent functioning of the state or its officers. Moreover
the government should not take technical pleas like sovereign immunity but should defend
the on merit on actions.

In the case of State of Andhra Pradesh v. Challa Ramkrishna Reddy 37, the Hon'ble. Supreme
Court held that

34
AIR 1994 SC 2663.
35
Nilabati behera v state of Odisha Air 1993 SC 1960.
36
State of rajasthan v vidyawati AIR 1962 SC 993.
37
AIR 2000 SC 2083.
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the principle of sovereign immunity has no place in Indian jurisprudence where the power
vests in the people who elect the representatives to run the Government which has to act in
accordance with provisions of the Constitution and would be answerable to the people.

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4. THE STATE IS COMPLETELY NEGLIGENT IN PURSUIT OF ITS ACTIONS


AND THE DEFENCE OF DOCTRINE OF CONTRIBUTORY NEGLIGENCE
WOULD NOT STAND.

ABAPTA in the present case would not be held liable under the doctrine of contributory
negligence. The question of contributory negligence arises when both the parties are found to
be negligent. From the facts it is distinctly evident that the state would be solely liable for the
negligent acts of the police, its functionary. ABAPTA in no way contributed to the act of
causing such negligence that is solely delivered by the police. There is an evident causal link
between the damages suffered by the petitioner and the defendants wrong. The use of tear
gas, canning and forced eviction at night is a direct cause instituting the abrogation of
fundamental rights of the petitioner. The actions of the defendant is a legal effective cause of
the petitioners loss.

A. Breach of a legal duty to exercise due care on the part of the police officials towards the
sitting members of ABAPTA.

According to Winfield, negligence as a tort is the breach of a legal duty to take care which
results in damage, undesired by the defendant to the petitioner38. The constituents of the
negligence being, firstly a duty of care towards the petitioner, secondly a breach of the said
duty and thirdly a consequential damage.39 The cardinal principle of liability is that the party
complained of should owe to the party complaining a duty to take care, and that the party
complaining should be able to prove that he has suffered damage in consequence of breach of
that duty.40 The petitioner herein humbly submits that, in the present situations the police
officials were obliged to exercise a reasonable amount of duty of care in evicting the agitating
teachers. Canning and use of tear gas at night is not the method to be resorted to, which clearly
indicates the breach of the legal duty that the police officers owe to the petitioner. Cause of
actions in negligence arises only when damage occurs for damage is a necessary ingredient
of this tort.41 And these actions of the defendant caused damage to the petitioner in forms of
physical injury as trespass to body, grievous hurt, criminal force, and acute transgression of
valued fundamental rights, which the petitioner herein stands to enforce it from the state. In

38
Jay Lakshmi salt works (P) ltd. V. state of Gujrat (1994) 4 SCC 1.
39
Poonam Verma v. Ashwin Patel, AIR 1996 SC 2111.
40
Donoghue v. Stevenson, 1932 (AC) 562 (HL).
41
Kishorilal v. Chairman employees state insurance corporation, AIR 2007 SC 1819.
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strict legal analysis, negligence properly connotes the complex concept of duty, breach, and
damage thereby suffered by the person to whom the duty was owing.42 Herein the petitioner
humbly submits that, the police officials committed a breach of legal duty of exercising due
care.

B. The doctrine of contributory negligence will fail, making the state absolutely liable.

The rule of contributory negligence was that whenever the direct and proximate cause of the
damage was the petitioners own carelessness, he could not recover anything, even if the
primary and original cause of damage is the petitioners negligence.43 The rigour of this rule
now stand relaxed.44 In spite of the contributory negligence of the petitioner, if the defendant
would by ordinary exercise of care have avoided the injury the petitioner is entitled to
recover.45 The petitioner humbly submits, that the present situation was completely in control
of the police officials and had they wanted they could have avoided the injury caused to the
petitioner with exercise of reasonable due care. Here the defence of contributory negligence
fails because the action that proximately caused the injury was the negligence of the
defendant. For sustaining the defence of contributory negligence each problem must be
approached in the light of its own facts and having regard to general principles of justice,
equity and good conscience. Throwing light on the present facts, the petitioner humbly
submits that mere knowledge of the danger does not paves way to satisfy that there was
consent to the danger. The mindless actions of the police was not within the arena of
reasonable foreseeability. The chain of causation would have been broken making the case
fall under doctrine of contributory negligence, had there been any warning by the police
officials before restoring to physical force. The answer to the question but for the defendants
actions would the damage have occurred? affirms that state has to be held absolutely liable
for the actions of the police, because the actions taken by the police was on their sole
discretion. The prosecution humbly submits that the state would be held absolutely liable46
contradicting the defence of contributory negligence, on the occasion of gross violation of

42
Poonam sharma v. Union Of India, AIR 2003 Del 50.
43
Mathuranayagam Pillai v Municipal Council, Madura AIR 1937 Mad 152.
44
Vidya Devi v Madhya Pradesh State Road Transport Corporation AIR 1975 MP 89.
45
Mathuranayagam Pillai v Municipal Council, Madura AIR 1937 Mad 152.
46
M.C.Mehta v. Union of India,1987 1 SCC 395.
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fundamental rights of ABAPTA by the police officials and no defence would be allowed to
the state.

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PRAYER

Wherefore, in light of the facts of this case, issues raised, arguments advanced and authorities
citied, the Petitioner humbly prays that this Hon'ble Court may please to adjudge and declare:

A. The Hon'ble High Court has jurisdiction under Art. 226 of the Constitution of India and
thus this case is maintainable.

B. The actions of the police authority were arbitrary and hence the state is vicariously liable
for the unjustified acts of its functionary.

C. Ensuing this liability, the state of Borissa is liable to pay compensation and damages to the
hapless victims of the police atrocities; quantum of which is to be decided as the Honble
court deems fit.

The Hon'ble Court may also be pleased to pass any other order, which the court may deem fit
in the light of justice, equity and good conscience.

ALL OF WHICH IS MOST HUMBLY PRAYED

DATE: 26.03.2016 COUNSEL FOR THE PETITIONER

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