8TH KIIT INTRA MOOT COURT COMPETITION 2016

MEMORIAL FOR RESPONDENT

8THKIIT INTRA MOOT COURT

COMPETITION2016

TC-856

W.P No____of 2016

BEFORE

THE HONBLE HIGH COURT OF BORISSA

IN THE MATTER BETWEEN

ALL BORISSA AD-HOC PRIMARY TEACHERS ASSOCIATION

(PETITIONER)
v.

STATE

(RESPONDENT)
To,
THE HONBLE CHIEF JUSTICE
AND OTHER COMPANION
JUDGES OF HIGH COURT OF
BORISSA

~ON THE SUBMISSION BEFORE THE REGISTRY OF THE COURT~

~MEMORANDUM ON BEHALF OF THE RESPONDENT~

8TH KIIT INTRA MOOT COURT COMPETITION 2016

MEMORIAL FOR RESPONDENT

TABLEOF CONTENTS

ABBREVIATION ................................................................................................................................. 1
INDEXOF AUTHORITIES ................................................................................................................. 3

PRIMARY AUTHORITIES: ........................................................................................................... 4

WEB REFERENCES: ...................................................................................................................... 4

CONSTITUTION AND STATUTES: ............................................................................................. 4

STATEMENTOF JURISDICTION .................................................................................................... 5

STATEMENTS OF FACTS................................................................................................................. 6

STATEMENT OF ISSUES .................................................................................................................. 7

SUMMARYOF ARGUMENTS ........................................................................................................... 8
ARGUMENTS ADVANCED ............................................................................................................... 9

I. THE WRIT PETITION FILED BEFORE THE HIGH COURT IS NOT

MAINTAINABLE............................................................................................................................. 9

A. Existence of an efficacious alternative remedy would bar the institution of the writ ............. 9
B. There is no infringement of fundamental rights .................................................................... 10

II. THE POWER UNDER S. 144 OF Cr.P.C. HAS NOT BEEN MISUSED ........................... 11
A. There was public nuisance and apprehension of danger ...................................................... 11

B. Danger To Life ........................................................................................................................ 13

C. Action Of Police Was Not Arbitrary ....................................................................................... 13

III. THE DEFENDANT IS NOT LIABLE FOR COMPENSATION TO THE PETITIONER

.......................................................................................................................................................... 14
A. Sovereign Immunity ............................................................................................................... 14
B. Contributory Negligence ......................................................................................................... 16

PRAYER .............................................................................................................................................. 19

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ABBREVIATION
ABBREVIATION

TERM

&

And

S.

Section

Paragraph

ACJ

Amended Consent Judgement

Art.

Article

AIR

All India Reporter

Cal.
Cri

Calcutta

Criminal

Cri LJ

Criminal Law Journal

CrPC

Code of Criminal Procedure

FRs.

Fundamental Rights

Govt.

Government

Co.
ER

Company

England Report

Gau

Gauhati

H.P.

Himachal Pradesh

I.P.C.

Indian Penal Code

Ltd.

Limited

LJ

Law Journal

M.P.

Madhya Pradesh

No.

Number

Mad

Madras

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Ors.

Others

Pvt.

Private

Pat
SC

SCC

Patna

Supreme Court

Supreme Court Cases

SCR

Supreme Court Reports

SLJ

School Library Journal

U.P.

Uttar Pradesh

Sik

U.O.I.

Sikkim

Union of India

V.

Versus

W.B.

West Bengal

WP

Writ Petition

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INDEX OF AUTHORITIES
CASES
01. A S Mittal v. State of Uttar PradeshAIR 1989 SC 1570
02. Abdus Sattar v. Juran Chandra Sarkar(1985) 2 Gauh. Lr 115
03. Alok Mittal And Ors. v. Government of Haryana And Ors. 2008 (98) SLJ 369
CAT
04. Chandan Nagar, West Bengal v. Dunlop India Ltd. and others (1985) 1 SCC 260
05. Chief Conservation of Forests v. Jyannatha Maruti Khondare (1996) 2 SCC 293
06. D.S Joseph v. State of U.P, 2005 CrLJ 709 (712) (All)
07. Gopalji Prasad v. State of Sikkim, 1981 CrLJ 60 (Sik)
08. Heritage Engineer & Developers Pvt Ltd v. State of Assam, 2007 Cri LJ 1464
(1468)
09. Imaman vs Union Of India, (1976) ACJ 100
10. Jagrupa Kumari v. Chotay Naraiin Singh, (1963) 37 Cri LJ 95, 97 (Pat)
11. Joyanti Kumar Mookerjee v. Middleton, (1900) 27 Cal 785, 787
12. Madhu Limaye v. Sub- divisional Magistrate, (1970) 3 SCC 746
13. Mahamaddi Mollah, (1898) 2 CWN 747
14. Nance v. British Columbia Electric Railway Co Ltd [1951] AC 601, [1951] 2 All
ER 448
15. Premoda Medhi v. Gauhati Roller Flour Mills Ltd(2003) 1 Gau LR 205
16. Ramesh Chandra Dutt v. Union Of India AIR 1965 Pat 167;
17. Ramesh Thapper v. State of Madras AIR 1950 SC 124
18. Richardson v. Stephenson Clarke Ltd [1969] 3 All ER 705,
19. Secretary of State v. Har Bhanji ILR 5 Mad 273
20. State of Bihar v. ShailaBala AIR 1952 SC 329
21. State of Madhya Pradesh v. Chironji LalAIR 1981 MP 65
22. State of Madhya Pradesh v. Saheb Dattamal AIR 1967 MP 264
23. State of Orissa v. PadmlochanAIR 1978 MP 164
24. State of Rajasthan v. Vidhyawati AIR 1962 SC 933
25. Swenalata Barua vs Union Of India AIR 1963 Assam 117
26. Thangarajan v. Union of India, AIR 1975 Mad. 32
27. Titaghur Paper Mills Co. Ltd. v. State of Orissa
28. Union of India v. Sugrabati w/o of Abdul Majid AIR 1969 Bom 13

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PRIMARY AUTHORITIES:
1. D.D BASU, COMMENTARY ON CONSTITUTIONAL LAW OF INDIA, VOLUME
2.
2. MAHENDRA P. SINGH, V.N SHUKLAS CONSTITUTION OF INDIA, 326
(12TH EDITION 2013)
WEB REFERENCES:
1.

WWW.HEINONLINE.ORG (HEINONLINE)

3.

WWW.JUDIS.NIC.IN (SUPREME COURT OF INDIA OFFICIAL)

2.
4.
5.
6.

WWW.JSTOR.ORG (JSTOR)

WWW.MANUPATRAFAST.COM (MANUPATRA)
WWW.SCCONLINE.CO.IN (SCC ONLINE)

WWW.WESTLAWINDIA.COM (WESTLAW INDIA)

CONSTITUTION AND STATUTES:

1. CONSTITUTION OF INDIA, 1950.
2. CIVIL PROCEDURE CODE, 1908.

3. CODE OF CRIMINAL PROCEDURE, 1973.

JOURNAL

1. HALSBURYS LAWS OF INDIA, ADMINISTRATIVE LAW, LEXISNEXIS

BUTTERWORTHS, VOLUME 1, 2008.
2. HALSBURYS LAWS OF INDIA, TORTS, BUTTERWORTHS, VOLUME 29(1), 2008.

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STATEMENTOF JURISDICTION
That as the Municipal laws of Borissa is in pari materia to the Laws of India. The

Respondent humbly submits this memorandum in response to the petition filed before this

Honourable Court. The petition invokes its writ jurisdiction under Article 226 of the
Constitution of India. It sets forth the facts and the laws on which the claims are based.

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STATEMENTS OF FACTS
I.

All Borissa Ad-hoc Primary Teachers Association (ABAPTA), is a society

registered under Society Registration Act. In 2015, they raised the issue of

regularization of 1500 such ad-hoc teachers. They sought permission from the
Police Commissioner of Borissa for organizing a relay hunger strike near State

Assembly demanding for the same for which the police authorities granted a
II.

conditional no objection certificate.

On end from 5th October 2015, the ABAPTA went for a relay hunger strike,

resulting in agitation. On 9th October, the Leader of the Opposition (political

party), seizing the opportunity came before the dharna place and mobilized the
III.

protesting teachers against the ruling government.

After this, the Government withdrew the permission and a prohibitory order was
imposed under Section 144 of Cr.P.C 1973. The Police Commissioner next day,

came before the agitating teachers and tried to convince the leaders and the sitting
IV.

teachers to withdraw the hunger strike but failed in doing so.

There was a police crackdown at night on 10th October, 2015 asking the agitating

teachers to leave the place at midnight itself. However, the police evicted the
sleeping persons forcibly by caning and use of tear gas which resulted injuries to

V.

various agitating teachers present then and there.

The ABAPTA decided to file a writ petition in High Court of Borissa claiming
compensation and damages against the Government of Borissa under Article 300
(1) of the Constitution of India, 1950 under common law principle of vicarious
liability. The Government of Borissa defended the case by pleading sovereign
immunity and claimed doctrine of contributory negligence.

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STATEMENT OF ISSUES
ISSUE I
WHETHER THE WRIT PETITION UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA IS MAINTAINABLE OR NOT?

ISSUE II
WHETHER THE POWER UNDER S. 144 OF CRPC HAS BEEN MISUSED?

ISSUE III
WHETHER THE DEFENDANT IS LIABLE FOR COMPENSATION TO THE
PETITIONER?

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SUMMARY OF ARGUMENTS
I. THE WRIT PETITION FILED BEFORE THE HIGH COURT IS NOT
MAINTAINABLE.

The writ petition filed by the petitioner is not maintainable. Firstly, the existence of an

efficacious alternative remedy in claiming relief under private law would oust the petitioner

from filing the writ petition. Secondly, no fundamental right was infringed and therefore the
writ will not be maintainable on this regard and hence writ cannot be issued.
II. THE POWER UNDER S.144 OF Cr.P.C IS NOT MISUSED

The rationale behind S.144 states its application is justified if it is to prevent annoyance,

injury to human life and disturbance of public tranquillity. Firstly, the act of the petitioner
was the act of annoyance. Since it was a strike there were abundant chances of violence for

meeting the demands. The facts clearly mention that the petitioners were agitated and hence
there were chances of disturbance of public tranquillity. Secondly, there was danger to human

life as the teachers were on a relay hunger strike from four days. Food and water is necessary
for a person to survive and since the petitioners were on relay hunger strike, S. 144 was

evoked in a good cause to save their life. Thirdly, the action of the police was not an arbitrary
action rather was in lawful exercise of the legitimate powers vested on them to maintain law
& order in the society.

III. THE DEFENDANT IS NOT LIABLE FOR COMPENSATION TO THE

PETITIONER

The defendant is not liable for providing compensation to the petitioner. Firstly, the Doctrine
of Sovereign immunity protects them. Secondly, there seems contributory negligence on part

of the petitioner. The most important contention is that there is no infringement of any
fundamental right and hence, there can be no initiation of mechanism for enforcement of the
infringed fundamental right, encompassing within its ambit the exercise of the right to
compensation guaranteed under the Constitution of India.

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ARGUMENTS ADVANCED
I.

THE WRIT PETITION FILED BEFORE THE HIGH COURT IS NOT

MAINTAINABLE

(1.) It is submitted that the writ filed in the High Court is not maintainable as there existed
an efficacious alternative remedy. [A] Further, the writ is not maintainable on account of noncontravention of any fundamental right. [B]

A. Existence of an efficacious alternative remedy would bar the institution of the writ
(2.) The powers conferred upon the High Court under Art 226 of the Constitution to issue to
any person or authority, including in appropriate cases, any Government directions, orders or

writs, including the five prerogative writs for the enforcement of any of the rights conferred

by Part III or for any other purpose, are very wide and there is no express limitation on
exercise of that power but, at the same time, one cannot be oblivious of the rules of selfimposed restraint evolved by this Court, which every High Court is bound to keep in view
while exercising the powers under Art 226 of the COI .1

(3.) In this case petitioner would have first approached to Civil Court as there was a

existence of Alternative Remedy available in S.9 of CPC. It has two condition i.e the suit
must be of a civil nature and the cognizance of such suit should not have been expressly or

impliedly barred. Both the condition were satisfied in the present case. The civil court in state
of Borrisa has competency to trail this case and also in S. 15 of CPC which says "every suit

shall be instituted in the Court of the lowest grade competent to try it". So, there was a

alternative remedy available in lower court i.e. Civil Court. It is true that the rule of
exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is

difficult to fathom any reason why the High Court should entertain a petition filed under
Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can

avail effective alternative remedy by filing application, appeal, revision, etc. and the
particular legislation contains a detailed mechanism for redressal of his grievance. Therefore,
1

Durga Das Basu, Constitutional Remedies and Writs (Kolkata: Kamal Law House, 3rd ed., 2009) p. 107

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in all such cases, High Court must insist that before availing remedy under Article 226 of the
Constitution, a person must exhaust the remedies available under the relevant statute.

(4.) Art. 226 is not meant to short-circuit or circumvent statutory procedures.2 It is only
where statutory remedies are entirely ill-suited to meet the demands of extraordinary
situations, as for instance where the very vires of the statute is in question or where private or
public wrongs are so inextricably mixed up and the prevention of public injury and

Constitution or by filing a civil suit, which is expressly barred.3 Even though a provision
under an Act cannot expressly oust the jurisdiction of the court under Art 226 of the COI,
nevertheless, when there is an alternative remedy available, judicial prudence demands that

the Court refrains from exercising its jurisdiction under the said constitutional provisions.4

Thus it is humbly submitted that this is a case where the hon'ble High Court should not

entertain the petition under Art. 226 of the Constitution and should direct the petitioner to
take recourse to efficacious alternative remedy.

B. There is no infringement of fundamental rights

(5.) It is humbly submitted by the defendant that the writ filed by the petitioner is not
maintainable as there is no violation of any fundamental right in the action taken by the

police authority. The State has a duty to protect itself against certain unlawful actions and
therefore has power to enact such laws for protection. The right guaranteed under Article
19(1) (a) is not absolute and unchecked. If there would not be any restraint, the rights and
freedoms would become synonymous with anarchy and disorder.5

(6.) There is no violation of Fundamental Rights. Therefore, there is no locus standi, as

rights of the petitioner has not been infringed. Rather Art.19 (2) and Art 19 (3) says about
reasonable restriction can be imposed by state to prevent the public disorder.6

(7.) If an act has tendency to cause public disorder it would be a valid ground under Art.19

(2) to impose restrictions, even though it may not lead to breach of public order. Supreme
Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCR 743; Assistant Collector of Central Excise,
Chandan Nagar, West Bengal v. Dunlop India Ltd. and others (1985) 1 SCC 260.
3
Ibid.
4
Durga Das Basu, Constitution of India (Nagpur: Lexis Nexis Butterworths Wadha, 8th ed., Reprint 2012) p.
6507.
5
State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92.
6
Article 19(2) & (3), The Constitution of India, 1950.
2

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Court explained the meaning of the public order as that state of tranquility, which prevails

amongst the member of a political society as the result of the internal regulations, enforced by
the Government, which they have established. 7 The expression security of state refers to
serious and aggravated form of public disorder and not ordinary law and order problem and

public safety.8 The speeches and expressions, which encourage violent crimes, are related to

security of state. 9 Thus, in this case where the teachers were agitated by the Leader of

Opposition of political party10, the action of Police was sovereign and they had legitimate
right of imposing the prohibitory order u/S 144 of Cr.P.C for securing public peace and
tranquillity for a larger group of people.

(8.) In this current case, it is humbly submitted that there is no direct and definite relation

between the cause of action and the locus standi. In case of petitioner, who is registered under

an act11, it would seem reasonable if they first approached the Concerned Authority to meet
their demands, on failure of which they can go for a relay hunger strike.

(9.) It is submitted that, there is no contravention of any fundamental right, as fundamental

rights have reasonable restrictions. Therefore, the Government had every legitimate right of
imposing the prohibitory order for securing public peace and tranquillity and hence it is
humbly submitted that the writ petition to this regard is not maintainable.

II. THE POWER UNDER S. 144 OF Cr.P.C. HAS NOT BEEN MISUSED
The power under S. 144 of Cr.P.C has not been misused as there was public nuisance and
apprehension of danger. [A] Further, there was danger to life of the petitioners [B] and thus
the action of police was not arbitrary. [C]

A. There was public nuisance and apprehension of danger

(10.) The Defendant can invoke section 144 as there was an anticipation of nuisance or

apprehended danger which S. 144 of Cr.P.C clearly suggests. The gist of action under Section

144 is the urgency of the situation; its efficacy is the likelihood of being able to prevent some
Ramesh Thapper v. State of Madras AIR 1950 SC 124
State of Bihar v. Shaila Bala AIR 1952 SC 329
9
Ibid.
10
2, Moot Proposition.
11
1, Moot Proposition.
7
8

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harmful occurrences12. The sine qua non for an order under this section is urgency requiring

an immediate and speedy intervention by passing of an order.13 There was an apprehension to

danger because the petitioner seemed quite agitated during last four days and there were
chances of them getting violent. Further, they also created public nuisance by going on strike

near State Assembly. There is no general proposition that an order under S. 144 cannot be

passed without taking evidence. 14 Action under this section is anticipatory, that is, it is
utilized to restrict certain actions even before they actually occur.

(11.) Anticipatory restrictions are imposed generally in cases of emergency, where there is

an apprehended danger of some event that has the potential to cause major public nuisance or
damage to public tranquillity, as described under S. 268 of IPC that any act or guilt of an

illegal omission which causes any injury, danger, obstruction or annoyance to the public or

people in general who dwell or may have occasion to use any public right. Preservation of the
public peace and tranquillity is the primary function of the Government and the aforesaid

power is conferred on the Executive Magistrate enabling it to perform that function

effectively during the emergent situations.15

(12.) The principles that must be borne in mind before the application of this section has
also been elaborated upon in the case of Manzur Hasan v Muhammad Zaman16 and approved

in the case of Shaik Piru Bux v Kalandi Pati17 which include, urgency of the situation and the
power is to be used for maintaining public peace and tranquillity, private rights may be
temporarily overridden when there is a conflict between public interest and private rights and

the consideration should not be that restriction would affect only a minor section of the

community rather that a large section more vociferous and militant. The petitioner here were
the minor sector, and when it comes to public at large, the petitioners right can be over ridden
by the force of law.

(13.) Thus it is respectfully submitted that there was urgency of the situation to evoke the
section as to maintain the public peace and tranquillity. It can also be assumed that the

inhabitants of the locality had raised pertinent concerns about their restricted freedom of
Observation in Jagdishwaranand vs Police Commissioner: 1983 Cri LJ 1872(CAL)
Gopalji Prasad v. State of Sikkim, 1981 CrLJ 60 (Sik)
14
Jagrupa Kumari vs Chotay Naraiin Singh, (1963) 37 Cri LJ 95, 97 (Pat); Madhu Limaye Vs SubdivisionalMagistrate, (1970) 3 SCC 746 : 1971 Cri LJ 1720, 1731
15
Ratanlal & Dhirajlal, The Code of Criminal Procedure (Nagpur: Lexis Nexis Butterworths Wadha, 19th
ed.,2010) p. 379.
16
(1921) ILR 43 ALL 692.
17
(1969) 2 SCR 563.
12
13

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movement due to the purported strike. The functioning and conduct of the Assembly was also
curtailed due to the mass agitation on issues which are constitutionally ultra vires.
B. Danger To Life
(14.) The Dharna which the petitioners were doing would lead to the deterioration in their

health and some of the physical and mental side effects of a hunger strike would be general

weakness, loss of concentration and focus, dehydration, hair loss, and skin breakdown, not to

mention vitamin and mineral deficiencies such as anaemia (iron deficiency) and to prevent

this suffering of the people S.144 of Cr.P.C is applied in good faith which is described in
S.52 of I.P.C. The intention of the police wasn't to harm them but to deter them from greater
harm of their health.

C. Action Of Police Was Not Arbitrary

(15.) Although Fundamental Rights are considered sacred, when Police are entrusted the

duty of preserving the public peace and tranquillity, they must also be given the powers to
regulate public gatherings. The police is an instrument of Government18 to enable them to
enforce their authority and fulfil their responsibility for the maintenances of law and order.
The police therefore placed by law under the general control and direction of the Magistrate

who is responsible that it carries out its duties in such a manner that effective protection is
afforded to the public against lawlessness and disorder.19

(16.) The state has given a special arbitrary power to the police to maintain peace and

tranquillity. The action taken by the police appears to be just and reasonable and has the
nexus with the objects sought to be achieved. Imposing reasonable restrictions on any public

gathering especially when it is evident that a large number of people are expected is
necessary to regulate and take sufficient precautionary measures.

(17.) As the Conditional No Objection Certificate was cancelled due to its violation by the
petitioner, so the police were fully competent to revoke it as well as to pass orders under
Section 144 Cr.P.C and previously the Police Commissioner came before the petitioner and
tried to convince the leaders and sitting teachers to withdraw the hunger strike but they didn't
18
19

Alok Mittal And Ors. v. Government of Haryana And Ors. 2008 (98) SLJ 369 CAT
S.N Mishra, The Code of Criminal Procedure, 1973,( Central Law Publications, 17th ed. 2010)p. 179

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agree upon it. Thats why the action taken by the Police was reasonable and not beyond the
power conferred to them. Hence, there was no arbitrary action taken by the Police.

(18.) It is well settled that citizens have right to take out procession or to hold demonstration

or public meetings as part of the freedom to assembly peacefully and without arms and the

right to move freely anywhere in the territory of India.20 In the present case, the Court held
that S.144 of Criminal Procedure Code was constitutional and that the Magistrate had power
to prevent such activities which would obstruct the public interest and peace. It should be
kept in mind that only peaceful demonstration is protected and not all forms of
demonstrations.

III. THE DEFENDANT IS NOT LIABLE FOR COMPENSATION TO THE

PETITIONER
The defendant is not liable for providing compensation to the petitioner as the Doctrine of
sovereign Immunity protects them [A] and there was Contributory negligence on part of
petitioner [B].

A. Sovereign Immunity
(19.) Firstly, the meaning of "Sovereignty" is the Supreme power which governs the body
politic that constitutes the state; a term used to express the supreme political authority of an

independent state or nation; power by which any state is governed. 21 Secondly, the
"Sovereign Functions"- One of the tests to determine whether the executive function is
sovereign in nature is to find out whether the State is answerable for such action in Courts

law. Acts like defence of the country, raising armed forced and maintaining it, making peace

or war, foreign affairs, power to acquire and retain territory, are functions, which are
indicative of external sovereignty and are political in nature. So they are, not amenable to the
jurisdiction of ordinary Civil Court in as much as the State is immune in such matters.22

(20.) In this case the action of police is an executive act which is covered under the
definition of Sovereign act. Since the action of petitioner may lead to violence as there was
20 Babulal Parate v. State of Maharashtra, AIR 1961 SC 884.
21 P Ramanathan Aiyar, The Major Law Lexicon, Vol. IV, 4379 (J.S.S Subramani & V R Manohareds, Nagpur:
Lexis Nexis Butterworth Wadhwa, 4th ed., 2010)
22 Chief Conservation of Forests v. Jyannatha Maruti Khondare, (1996) 2 SCC 293

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apprehend danger, so the action taken by police was in order to maintain peace and
tranquillity in the society. Thus, it will be covered under sovereign function. Hence Govt. can
take the defence of Sovereign Immunity as interest of large is the main concern of police
authority.

(21.) In the case of Kasturi lal23 the learned Chief Justice said: "there is a great and clear
distinction between acts done in the exercise of what are usually termed sovereign powers,

and acts done in the conduct of undertakings which might be carried on by private individuals

without having such powers delegated to them." Having thus enunciated the basic principle,
the then Chief Justice stated another proposition as flowing from it. He observed that "where

an act is done, or a contract is entered into, in the exercise of powers usually called sovereign

powers; by which we mean powers which cannot be lawfully exercised except by sovereign,

or private individual delegated by a sovereign to exercise them, no action will lie." And,

naturally it follows that where an act is done, or a contract is entered into, in the exercise of
powers which cannot be called sovereign powers, action will lie. The act of the public servant
committed by him during the course of his employment is, in this category of cases, an act of
a servant who might have been employed by a private individual for the same.

(22.) The State to regulate processions has delegated to police under S. 30 of the Police Act

and the function to maintaining law and order including quelling of riot is a sovereign

function delegated to the authorities specified by S.144, Cr.P.C. 24 These functions, being
Sovereign functions, the State is not liable for any damage caused in the exercise of that
function. The State will not liable for anything done in exercise of sovereign powers.25

(23.) In deciding whether a particular act was performed by a government servant in

discharge of a sovereign power delegated to him, the proper test is whether it was necessary
that the state for the proper discharge of sovereign functions to have had the act done through

its own agency.26 In order to maintain law and order held to be sovereign function of the
state, the government will not be held liable for false imprisonment when the officers acts in

exercise of statutory power in detaining an individual. 27 As compared to present case, the

defendant will thus be not held liable for its police officials using caning and tear gas in order
Kasturilal v State of U.P., (1965) AIR 1039
M.P. v. Chironji Lal, AIR 1981 M.P. 65
25
Secretary of State v. Har Bhanji ILR 5 Mad 273; Harbans Singh v, State of U.P. & Ors., AIR 1959 Punjab 39;
Thangarajan v. Union of India, AIR 1975 Mad. 32
26
Union of India v. Sugrabati w/o of Abdul Majid, (1968) ILR Bom 998,.
27
State of Madhya Pradesh v. Chironji Lal AIR 1981 MP 65.
23

24

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to maintain law and order. Quelling of riots has been treated as sovereign function of the
state, not capable of being undertaken by any private person, therefore no liability would be

arise in respect of any injury suffered in the process 28 even if the police personnel had
committed acts in excess of the discharge of their functions. 29 An act of State cannot be
questioned or made the subject of legal proceedings in court. 30

(24.) It is humbly submitted that the defendant will come under the canopy of Doctrine of

Sovereign Immunity and thus, cannot be held liable for the act committed by the police
officials.

B. Contributory Negligence
(25.) Contributory negligence means that though the defendant has been negligent, the
petitioner by his negligence has broken the casual connection between the defendant's

negligence and injury.31 Contributory negligence32 is an expression which implies that the
person who has suffered damage is also guilty of some negligence and has contributed

towards damage. A situation may exist where the plaintiff fault is so great that his clam may
fail even if the defendants contribution to the injury cannot be denied.33 In such case, the
court has power to apportion the loss between the parties who can be held guilty of
negligence by act or omission on their part. Every action is to follow its prescribed in course

of law. The factual situation in the case state that the petitioners did not cut down strike even

after the Police Commissioner tried to convince them. The action taken by police of caning &

using tear gas on the petitioner was based on several reasons, but it is important to note that
the action was taken only after the police requesting the petitioner to withdraw the hunger

strike but failed in doing so. 34 Thus the contributory negligence is evident on part of
petitioner.

(26.) In that process there might be a contributory disobedience which is a material

contributory factor. It must be an act or omission on the part of plaintiff which has materially
State of Madhya Pradesh v. Saheb Dattamal AIR 1967 MP 264.
State of Orissa v. Padmlochan AIR 1978 MP 164.
30
Halsbury's Laws of India, Administrative Law, LexisNexis Butterworths, Vol. 1, 2008, p. 005.316
31
Halsbury's Laws of India, Tort, LexisNexis Butterworths, , Vol. 29(1), 2008, p.285.338..
32
See Contributory Negligence in Causation; UOI Vs Hindustan Lever Ltd., AIR 1975 259.
33
Richardson v. Stephenson Clarke Ltd [1969] 3 All ER 705, [1965] 1 WLR 1965
34
3, Moot Proposition.
28
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contributed to the injury or damage.35 Volenti non fit injuria is a complete defence so the
liability of defendant in the case of contributory negligence is based on proportion of his fault
in the matter.

(27.) Therefore the damages which the plaintiff claim will be reduced to the extent the
claimant himself was to blame for loss.36 In the past, the rule was that whenever the direct
and proximate cause of the damage was the plaintiffs own blameworthy37, carelessness or
wants of skill, he could not recover anything, even if the primary and original cause of

damage was the defendants negligence. In this case, the petitioner should have complied
with the prohibitory order given by the police and themselves should have left the place to

avoid this situation that arose due to non compliance. Had it been the case that the prohibitory

order was not imposed on them, then the strike was legal, but that was not the case. They
were under a legal obligation to co-operate in enforcement of lawful orders, but they didn't

comply with it which can be said that they didn't comply with S. 186 of IPC which states
"obstructing public servant in discharge of duties". The petitioners can be termed as the
'author of its own wrong'.

(28.) The conditional no objection certificate was given to petitioner, but they didn't confer

to it. The contributory negligence38 on the part of petitioners resulted in the violent action
taken by the police to evict the crowd as there was apprehended danger. If they done what
they were told, the police would not have taken the further step to stop the agitating crowd. It

has been said that if the plaintiffs injuries have resulted from the negligent of both the

defendant and the plaintiff, the plaintiff can recover nothing.39All that needs to be established
is that the injured party did not, in his own interest, take reasonable care of himself and

thereby contributed to his own injury by this want of care,40 which is quite evident in the
given factual context.

(29.) The petitioner who alleged infringement of FRs should also keep in mind that every
right comes with an corresponding duty. Every person or body of persons to whom such
permission is granted shall give an undertaking to the authorities concerned that they would
Imaman v. Union Of India, (1976) ACJ 100; Ramesh Chandra Dutt Vs Union Of India AIR 1965 Pat 167;
Swenalata Barua v. Union Of India AIR 1963 Assam 117.
36
Dr. R.K Bangia, Law of Torts , Pg 48 , (22nd ed. Allahabad Law Agency , Haryana , 2011)
37
Ken Oliphant BA (Oxon), BCL, The Law Of Torts,( LexisNexis Butterworths, 2nd ed. 2013), p.195
38
Municipal Corporation of Delhi vs Association of Victims of Uphaar Tragedy and Ors. [CA No. 71116 of
2003: CA No.6748 of 2004].
39
Butterfield vs forrester (1809) 103 ER 926.
40
Nance v. British Columbia Electric Railway Co Ltd., [1951] 2 All ER 448.
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co-operate in carrying out their duty and any lawful orders passed by such competent

authority at any stage of the agitations. COI through Article 38 (1) provides that the State
shall strive to promote the welfare of the people by securing and protecting, as effectively as
it may, a social order in which justice social, economic and political shall inform all the
institutions of national life.

(30.) The requirement of police is as important organ of the State is that, they are instrument

of state for ensuring implementation of rule of law while holding such large scale meetings,
dharnas and protests, they have to look after that the FRs under Article 19 should not be
violated, but then again those FRs would fall within the regulatory mechanism of reasonable

restrictions under Article 19 (2) and (3). In the present case, the police officials thus would
not be unreasonable and arbitrary.

(31.) It is humbly submitted, that the defendant is not liable under the Doctrine of Sovereign
Immunity and Doctrine of Contributory Negligence.

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PRAYER

In light of the issues raised, arguments advanced and authorities cited, the counsel for the
Respondent humbly prays that the Honble Court be pleased to adjudge, hold and declare:
1. To dismiss the writ petition.
2. Hold that no violation of fundamental rights has taken place.
3. S.144 OF C.R.P.C was not been misused.
4. Doctrine of sovereign Immunity is applicable.
And pass any order that this Honble court may deem fit in the interest of equity, justice and

good conscience. And for this act of kindness, the counsel for the respondent shall duty
bound forever pray.
Sd/(Counsel for Respondent)

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