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STATEMENT OF JURISDICTION

The present writ petition is directed in the Hon’ble High Court, under Article 226 of The
Constitution of India which says,
Power of High Courts to issue certain writs.-
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose.

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in
relation to the territories within which the cause of action, wholly or in part, arises for the
exercise of such power, notwithstanding that the seat of such Government or authority or the
residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or
in any other manner, is made on, or in any proceedings relating to, a petition under clause (1),
without-

(a) furnishing to such party copies of such petition and all documents in support of the plea
for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court
for the vacation of such order and furnishes a copy of such application to the party in whose
favour such order has been made or the counsel of such party, the High Court shall dispose of
the application within a period of two weeks from the date on which it is received or from the
date on which the copy of such application is so furnished, whichever is later, or where the
High Court is closed on the last day of that period, before the expiry of the next day
afterwards on which the High Court is open; and if the application is not so disposed of, the
interim order shall, on the expiry of that period, or , as the case may be, the expiry of the aid
next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme Court by clause (2) of Article 32.

Memorial for the Respondent 2


QUESTIONS PRESENTED

I. Whether there was any negligence on the part of the government?


II. Is the government liable to pay any compensation?

Memorial for the Respondent 3


PARTIES INVOLVED
 Owner of school
 State

STATEMENT OF FACTS

In Jaipur city one huge nullah was situated on which the government did not give any
khatedari rights.

II

Person residing nearby the nullah and the land grabbers illegally sold the nullah’s land
in form of pieces of plots, for which they were not entitled.

III

In 1981, during rainy season, furious flood came damaging the entire Jaipur city,
specially the houses situated near the bank of the nullah.

IV

The rescue operations were performed by the government authorities in only those
areas which was JDA approved and did not operate the nullah area stating the lack of
resources and manpower. As such the area situated near the nullah was badly affected.

A school of a resourceful person, whose inauguration was done by the Chief Minister
and other cabinet ministers, was also situated on the nullah’s land, in which most of the
students studying were from prestigious family.

VI

The school authorities filed a suit, against the government for not performing rescue
operations in their area, in the district court claiming damages, which was finally
rejected on the ground that the school building was illegally constructed and as such
could not foresee the consequences of sudden flood.

Memorial for the Respondent 4


SUMMARY OF PLEADINGS

Conduct that falls below the standards of behavior established by law for the
protection of others against unreasonable risk of harm. A person has acted
negligently if he or she has departed from the conduct expected of a
reasonably prudent person acting under similar circumstances.

In order to establish negligence as a Cause of Action under the law of TORTS, a


plaintiff must prove that the defendant had a duty to the plaintiff, the defendant
breached that duty by failing to conform to the required standard of conduct,
the defendant's negligent conduct was the cause of the harm to the plaintiff,
and the plaintiff was, in fact, harmed or damaged.

The concept of negligence developed under English Law. Although


English Common Law had long imposed liability for the wrongful acts of others,
negligence did not emerge as an independent cause of action until the
eighteenth century. Another important concept emerged at that time: legal
liability for a failure to act. Originally liability for failing to act was imposed on
those who undertook to perform some service and breached a promise to
exercise care or skill in performing that service. Gradually the law began to
imply a promise to exercise care or skill in the performance of certain services.
This promise to exercise care, whether express or implied, formed the origins
of the modern concept of "duty." For example, innkeepers were said to have a
duty to protect the safety and security of their guests.

A person has acted negligently if she has departed from the conduct expected
of a reasonably prudent person acting under similar circumstances. The
hypothetical reasonable person provides an objective by which the conduct of
others is judged. In law, the reasonable person is not an average person or a
typical person but a composite of the community's judgment as to how the
typical community member should behave in situations that might pose a threat
of harm to the public. Even though, the majority of people in the community
may behave in a certain way that does not establish the standard of conduct of
the reasonable person.

In a negligence suit, the plaintiff has the burden of proving that the defendant
did not act as a reasonable person would have acted under the circumstances.
The court will instruct the jury as to the standard of conduct required of the
defendant. For example, a defendant sued for negligent driving is judged
according to how a reasonable person would have driven in the same
circumstances. A plaintiff has a variety of means of proving that a defendant did
not act as the hypothetical reasonable person would have acted. The plaintiff
can show that the defendant violated a statute designed to protect against the
type of injury that occurred to the plaintiff.

Memorial for the Respondent 5


PLEADINGS AND AUTHORITIES

I. Whether there was any negligence on the part of the government?

The Amanishah ka Nullah, incidentally a hundred years ago was called river Dravyavati
which flowed through the outskirts of the city moving to the south west side. But now it is
a dirty drain with sewage and the city's industrial and other effluents finding their way
through it. Also the Nullah has increasingly become real estate for the land mafia, with
not just big land sharks encroaching on the land, but huge tracks of land have been taken
over by institutions with big wealth and finally the city's poor, the migrants, those
displaced due various reasons including riots, thought were finally going to own a house
plot in Jaipur were trapped by the mafia into buying land on the Nullah.
What has contributed to Jaipur’s mess is the city’s growing migrant population, leading to
illegal settlements and slum dwellings. A dry river bed, Amanishah ka Nalla, houses the
largest number of illegal residential colonies in Jaipur. It has been one of the worst-hit
localities in the recent rain.

In regard to this, it has been alleged by the appellant that there was a serious negligence
on the part of the government or to say the state machinery in carrying out rescue
operations in the school situated by the nullah. It may be humbly submitted that the nullah
area is a protected area meant only for the drainage of the water from the city and its total
area is fixed vide various maps which the JDA releases from time to time.
Also what is to be seen is that the school had encroached into the catchment area of the
nullah and catchment area is nothing but the area drained by a river or body of water and
from these it becomes very eminent that the disaster that struck the school was in a true
sense one of its own making and the state cannot be held liable because due to the severe
flood, there was unprecedented damage to life and property throughout the city and a
result of which all the government machinery was stressed beyond its threshold limit and
it became practically impossible for the government to send relief on a short notice as
these were other priorities that were to be fulfilled. In spite of this all efforts were made to
provide relief to as many areas as possible and hence there was no laxity on the part of the
government.

Memorial for the Respondent 6


There was no negligence on the part of the government. This can be very well understood
as:
The concept of negligence developed under English Law. Although English Common
Law had long imposed liability for the wrongful acts of others, negligence did not emerge
as an independent cause of action until the eighteenth century. Another important concept
emerged at that time: legal liability for a failure to act. Originally liability for failing to
act was imposed on those who undertook to perform some service and breached a
promise to exercise care or skill in performing that service. Gradually the law began to
imply a promise to exercise care or skill in the performance of certain services. This
promise to exercise care, whether express or implied, formed the origins of the modern
concept of "duty."
One of the most important concepts in negligence law is the "reasonable person," which
provides the standard by which a person's conduct is judged.

THE REASONABLE PERSON

A person has acted negligently if she has departed from the conduct expected of a
reasonably prudent person acting under similar circumstances. The hypothetical
reasonable person provides an objective by which the conduct of others is judged. In
law, the reasonable person is not an average person or a typical person but a composite
of the community's judgment as to how the typical community member should behave
in situations that might pose a threat of harm to the public. Even though, the majority of
people in the community may behave in a certain way which does not establish the
standard of conduct of the reasonable person. For example, a majority of people in a
community may jay-walk, but jaywalking might still fall below the community's
standards of safe conduct.

The concept of the reasonable person distinguishes negligence from intentional torts
such as Assault and Battery. To prove an intentional tort, the plaintiff seeks to establish
that the defendant deliberately acted to injure the plaintiff. In a negligence suit,
however, the plaintiff seeks to establish that the failure of the defendant to act as a
reasonable person caused the plaintiff's injury. An intoxicated driver who accidentally
injures a pedestrian may not have intended to cause the pedestrian's injury. But because
a reasonable person would not drive while intoxicated because it creates an
unreasonable risk of harm to pedestrians and other drivers, an intoxicated driver may be
held liable to an injured plaintiff for negligence despite his lack of intent to injure the
plaintiff.

The law considers a variety of factors in determining whether a person has acted as the
hypothetical reasonable person would have acted in a similar situation. These factors
include the knowledge, experience, and perception of the person, the activity the person
is engaging in, the physical characteristics of the person, and the circumstances
surrounding the person's actions.
Memorial for the Respondent 7
With regard to this, it can be widely seen that there was no negligence on the part of the
government as it was doing its best in order to provide relief to the citizens.

Contributory negligence in common-law jurisdictions is defense to a claim based on


negligence, an action in tort. It applies to cases where plaintiffs/claimants have, through
their own negligence, contributed to the harm they suffered. For example,
a pedestrian crosses a road negligently and is hit by a driver who was driving
negligently. The pedestrian has contributed to the accident. Another example of
contributory negligence is where a plaintiff voluntarily disregards warnings and
assumes a certain level of risk, although accepting reasonable risk while attempting to
rescue another person is not considered contributory negligence.
Contributory negligence is sometimes regarded as unfair because under the doctrine a
victim who is at fault to any degree, including only 1% at fault may be denied
compensation entirely, which is known as pure contributory negligence.
If the claimant suffers further injury as a result of his own actions, there will be a break
in the chain of causation only if the claimant acted unreasonably.

Public policy will prevent a claimant relying on his own criminal acts from seeking
compensation from the defendant.
In this case there is a clear sense of negligence on the part of the plaintiff who, as a
reasonable man can foresee, had encroached upon the land and that too the catchment
area of the nullah and the catchment area is nothing but the area drained by a river or
body of water and it can be easily foreseen that the catchment area by its very nature is
prone to flood and hence the school authority acted highly negligently.

Badger v Ministry of Defense1:


“D employed the deceased as a boiler maker. During the course of his employment, he
had been exposed to asbestos, which caused him to develop asbestosis he developed
lung cancer which eventually killed him. D smoked and so contributed to the
negligence that caused his death.

Held: D did not take reasonable care for his own safety.
Continuing to smoke amounted to contributory negligence which was causative of lung
cancer. A reasonably prudent man warned that there was a substantial risk that
smoking would seriously damage his health, would stop smoking.”

1
[2005] QBD

Memorial for the Respondent 8


Green v Gaymer2:
“C was the pillion passenger on a motorcycle that hit a lamppost, C was injured and D
who had been drinking, was killed.

Held: Evidence that deceased driver had consumed at least five pints of cider.
Reasonable to conclude claimant was aware that the deceased's capacity to drive was
impaired when they left the pub and found guilty of 20% contributory negligence.”

Owens v Brimmell3:
“C and D together in D's car drank considerable amounts of beer in a pub. Whilst
driving home C did not wear a seat belt. D negligently caused an accident, whereby C
was injured.

Held: The principle was recognised that a passenger can be held to have been
contributorily negligent if he rides with a driver who he knows has consumer alcohol in
such quantity as is likely to impair to a dangerous degree that driver's capacity to drive
properly and safely.”

One much approach the Court with clean hands: Supreme Court

A well-known maxim, having its origin in equity courts, comes to test the quality of
litigants each time they pray for a particular relief in common lawcourts. The notion
that one must approach the court with clean hands has been so indoctrinated in the
common law system that all courts, right from the trial court up to the Supreme Court,
are loath to entertain a vexatious claim before it. The latest pointer to this regard is a
recent decision of the Supreme Court which reaffirms this time tested principle of civil
litigation.

In a recently pronounced decision, the Supreme Court affirmed the principle in the
following terms;
“It is quite intriguing and surprising that the lease agreement was not brought to the
notice of the Additional Commissioner and the learned Single Judge of the High Court
and neither of them was apprised of the fact that the appellant had taken 27.95 acres
land on lease from the Government by unequivocally conceding that it had purchased
excess land in violation of Section 154(1) of the Act and the same vested in the State
Government. In the list of dates and the memo of special leave petition filed in this
Court also there is no mention of lease agreement dated 15.10.1994. This shows that
the appellant has not approached the Court with clean hands. The withholding of the

2
[1999] QBD
3
[1977] QBD

Memorial for the Respondent 9


lease agreement from the Additional Commissioner, the High Court and this Court
appears to be a part of the strategy adopted by the appellant to keep the quasi-judicial
and judicial forums including this Court in dark about the nature of its possession over
the excess land and make them believe that it has been subjected to unfair treatment. If
the factum of execution of lease agreement and its contents were disclosed to
the Additional Commissioner, he would have definitely incorporated the same in order
dated 30.5.2001. In that event, the High Court or for that reason this Court would have
non suited the appellant at the threshold. However, by concealing a material fact, the
appellant succeeded in persuading the High Court and this Court to entertain
adventurous litigation instituted by it and pass interim orders. If either of the courts
had been apprised of the fact that by virtue of lease deed dated 15.10.1994, the
appellant has succeeded in securing temporary legitimacy for its possession over
excess land, then there would have been no occasion for the High Court or this Court
to entertain the writ petition or the special leave petition.”

It is settled law that a person who approaches the Court for grant of relief, equitable
or otherwise, is under a solemn obligation to candidly disclose all the
material/important facts which have bearing on the adjudication of the issues raised
in the case. In other words, he owes a duty to the court to bring out all the facts and
refrain from concealing/suppressing any material fact within his knowledge or which
he could have known by exercising diligence expected of a person of ordinary
prudence. If he is found guilty of concealment of material facts or making an attempt
to pollute the pure stream of justice, the court not only has the right but a duty to
deny relief to such person.
In one of the earliest decisions on the subject i.e., R. v. Kensington Income Tax
Commissioner4, Viscount Reading, Chief Justice of the Divisional Court observed:
“Where an ex parte application has been made to this Court for a rule nisi or other
process, if the Court comes to the conclusion that the affidavit in support of the
applicant was not candid and did not fairly state the facts, the Court ought, for its
own protection and to prevent an abuse of its process, to refuse to proceed any further
with the examination of the merits. This is a power inherent in the Court, but one which
should only be used in cases which bring conviction to the mind of the Court that it has
been deceived. Before coming to this conclusion a careful examination will be made of
the facts as they are and as they have been stated in the applicant’s affidavit
and everything will be heard that can be urged to influence the view of the Court when
it reads the affidavit and knows the true facts. But if the result of this examination and
hearing is to leave no doubt that this Court has been deceived, then it will refuse to
hear anything further from the applicant in a proceeding which has only been set in
motion by means of a misleading affidavit.”

The above extracted observations were approved by the Court of Appeal in the
following words: “It is the duty of a party asking for an injunction to bring under the

4
(1917) 1 KB 486
Memorial for the Respondent 10
notice of the Court all facts material to the determination of his right to that injunction:
and it is no excuse for him to say that he was not aware of the importance of any facts
which he has omitted to bring forward. If an applicant does not act with malafide
intention and put every material fact before the Court it will not grant him an
injunction, even though there might be facts upon which the injunction might be
granted.” His Lordship rightly pronounced: “The Court, for its own protection, is
entitled to say: We refuse this writ… without going into the merits of the case on the
ground of the conduct of the applicant in bringing the case before us.” Warrington,
L.J. was also of the same opinion. In a concurring judgment His Lordship observed: “It
is perfectly well settled that a person who makes an ex parte application to the Court –
that is to say, in absence of the person who will be affected by that which the Court is
asked to do – is under an obligation to the Court to make the fullest possible disclosure
of all material facts within his knowledge, and if he does not make that fullest
possible disclosure, then he cannot obtain any advantage from the proceedings, and he
will be deprived of any advantage he may have already obtained by means of the order
which has thus wrongly been obtained by him.”

This Court and different High Courts have repeatedly invoked and applied the rule that
a person who does not disclose all material facts has no right to be heard on the merits
of his grievance –
State of Haryana v. Karnal Distillery Co. Ltd.5,
Vijay Kumar Kathuria v. State of Haryana6,
Welcome Hotel and others v. State of Andhra Pradesh and others etc.7,
G. Narayanaswamy Reddy (dead) by LRs. v. Government of Karnataka and another8,
S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by LRs.9,
Agricultural and Processed Food Products v. Oswal Agro Furane and others10,
Union of India and others v. Muneesh Suneja11,
Prestige Lights Ltd. v. State Bank of India12,
Sunil Poddar and others v. Union Bank of India13,
K.D. Sharma v. Steel Authority of India Ltd. and others14,
G. Jayshree and others v. Bhagwandas S. Patel and others15

5
(1977) 2 SCC 431
6
(1983) 3 SCC 333
7
(1983) 4 SCC 575
8
(1991) 3 SCC 261
9
(1994) 1 SCC 1
10
(1996) 4 SCC 297
11
(2001) 3 SCC 92
12
(2007) 8 SCC 449
13
(2008) 2 SCC 326
14
(2008) 12 SCC 481
15
(2009) 3 SCC 141
Memorial for the Respondent 11
In Hari Narain v. Badri Das16, this Court revoked the leave granted to the appellant by
making following observations: “It is of utmost importance that in making material
statements and setting forth grounds in applications for special leave made under
Article 136 of the Constitution, care must be taken not to make any statements which
are inaccurate, untrue and misleading. In dealing with applications for special leave,
the Court naturally takes statements of fact and grounds of fact contained in the
petitions at their face value and it would be unfair to betray the confidence of the Court
by making statements which are untrue and misleading. Thus, if at the hearing of the
appeal the Supreme Court is satisfied that the material statements made by the appellant
in his application for special leave are inaccurate and misleading, and the respondent is
entitled to contend that the appellant may have obtained special leave from the
Supreme Court on the strength of what he characterizes as misrepresentations of facts
contained in the petition for special leave, the Supreme Court may come to
the conclusion that in such a case special leave granted to the appellant ought to be
revoked.”
In Dalip Singh’s case, the appellant’s grievance was that before finalizing the case
under the U.P. Imposition of Ceiling on Land Holdings Act, 1960, the prescribed
authority did not give notice to the tenure holder Shri Praveen Singh (predecessor of
the appellant). On a scrutiny of the records, this Court found that the prescribed
authority had issued notice to Shri Praveen Singh, which was duly served upon him and
held that the appellant is not entitled to relief because he did not approach the High
Court with clean hands inasmuch as he made a misleading statement in the writ petition
giving an impression that the tenure holder did not know of the proceedings initiated by
the prescribed authority. The preface and para 21 of that judgment read as under:
“For many centuries, Indian society cherished two basic values of life i.e., `Satya’
(truth) and `Ahimsa’ (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi
guided the people to ingrain these values in their daily life. Truth constituted an integral
part of justice delivery system which was in vogue in pre-independence era and the
people used to feel proud to tell truth in the courts irrespective of the
consequences. However, post-independence period has seen drastic changes in our
value system. The materialism has over-shadowed the old ethos and the quest for
personal gain has become so intense that those involved in litigation do not hesitate to
take shelter of falsehood, misrepresentation and suppression of facts in the court
proceedings. In last 40 years, a new creed of litigants has cropped up. Those who
belong to this creed do not have any respect for truth. They shamelessly resort to
falsehood and unethical means for achieving their goals. In order to meet the challenge
posed by this new creed of litigants, the courts have, from time to time, evolved new
rules and it is now well established that a litigant, who attempts to pollute the stream
of justice or who touches the pure fountain of justice with tainted hands, is not entitled
to any relief, interim or final.
From what we have mentioned above, it is clear that in this case efforts to mislead the
authorities and the courts have transmitted through three generations and the conduct of

16
AIR 1963 S.C. 1558
Memorial for the Respondent 12
the appellant and his son to mislead the High Court and this Court cannot, but be
treated as reprehensible. They belong to the category of persons who not only attempt,
but succeed in polluting the course of justice. Therefore, we do not find
any justification to interfere with the order under challenge or entertain the appellant’s
prayer for setting aside the orders passed by the Prescribed Authority and the Appellate
Authority.

Here in this case too, the plaintiff was an encroacher and was an illegal owner of the land
and it was this act of the plaintiff which endangered the lives of many school going kids
and hence the plaintiff is responsibility to ensure the safety of the kids.

II. Whether the government is liable to pay any compensation?

Since there was no negligence on the part of the government, there is no liability on the
government to pay any compensation to the plaintiff.

Memorial for the Respondent 13


PRAYER FOR RELIEF

Respondent requests that the Hon’ble High Court may rightly adjudge and declare that:

1. The order of the lower court to reject the plaint is correct.

2. The government is not liable for negligence.

3. Any other relief that this hon’ble court may be pleased to pass.

Respectfully submitted,

COUNCEL OF RESPONDENT

Memorial for the Respondent 14

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