Moot Petitioner KIMCC 2016

TC-856

8THK IIT IIT INTRA MOOT COURT COMPETITION2016 W.P No____of 2016

BEFORE THE HON’BLE HIGH COURT OF BORISSA IN THE MATTER BETWEEN

ALL BORISSA AD-HOC PRIMARY TEACHERS ASSOCIATION (PETITIONER ) v.

STATE (R ESPONDENT ESPONDENT)

To, THE HON’BLE CHIEF JUSTICE AND OTHER COMPANION JUDGES OF HIGH COURT OF BORISSA

EGISTRY OF THE COURT~ ~ON THE SUBMISSION BEFORE THE R EGISTRY ~ MEMORANDUM ON BEHALF OF THE P ETITIONER~

8TH KIIT INTRA MOOT COURT COMPETITION 2016 MEMORIAL FOR PETITIONER

TABLEOF CONTENTS

............................................................................................................................... .................................................................... .. 1 ABBREVIATION ............................................................. INDEXOF AUTHORITIES ................................................................................................................. 2

............................................................................................................................................... 2 CASES. ............................................................................................................................................... PRIMARY AUTHORITIES: ........................................................................................................... .......................................................................................................... 3

...................................................................................................................... ...................................................... 3 WEB REFERENCES: ................................................................ CONSTITUTION AND STATUTES: ............................................................................................. ............................................................................................ 3 STATEMENTOF JURISDICTION .................................................................................................... 4 STATEMENTS OF FACTS. ................................................................................................................ ................................................................................................................ 5

.................................................................................................................. ...................................................... 6 STATEMENT OF ISSUES ............................................................ SUMMARYOF ARGUMENTS ........................................................................................................... .......................................................................................................... 7

............................................................................................................... .......... I ARGUMENTS ADVANCED ...................................................................................................... THE WRIT PETITION FILED IS MAINTAINABLE BEFORE THE HIGH COURT .... I

I.

A.

This Hon'ble Court has an obligation to entertain the instant petition ................................ I

B.

Writ petition is maintainable when there is infringement of fundamental rights ............... II

C.

The writ is independent of the existing alternative remedies .............................................. III

II.

THE POWER UNDER S. 144 OF CR.P.C HAS BEEN MISUSED ................................ IV

A. S. 144 of Crpc applies applies to cases of nuisance nuisance and apprehended apprehended dangers .............................. IV B.

The use of police force amounts to arbitrary action protected by Art. 14 of the constitution V

C.

There Has Been Violation of Fundamental Right Under Art. 21 Of The Constitution ...... V

IV.

THE DEFENDANT IS LIABLE FOR THE COMPENSATION ....................................VI

A.

...................VI Compensation must be provided, if there is violation of fundamental rights ......................

B.

The Petitioner is liable under the common law principle of vicarious liability ................. VII

............................................................................................................................................... IX PRAYER . ...............................................................................................................................................


ABBREVIATION ABBREVIATION

TERM

&

“And”

S.

Section

¶

Paragraph

ACJ

Amended Consent Judgement

AIR

All India Reporter

Art.

Article

Cr.PC

Code of Criminal Procedure

Ed.

Edition

Hon'ble

Honourable

H.P.

Himachal Pradesh

I.P.C.

Indian Penal Code

Ltd.

Limited

M.P.

Madhya Pradesh

Ors.

Others

SC

Supreme Court

SCC

Supreme Court Cases

SCR

Supreme Court Reports

U.O.I.

Union of India

U.P.

Uttar Pradesh

V.

Versus

WP

Writ Petition

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INDEXOF AUTHORITIES CASES

01. A S Mittal v. State of Uttar Pradesh (1989) Pradesh (1989) 3 SCC 223 02. Alok Mittal And Ors. v. Government of Haryana Haryana And Ors. Ors. 2008 (98) 03. Bannari Amman Sugars Sugars Ltd. v. C. T. O. (2005) (2005) 6 SCC625 04. Consumer Education and Research Centre v. UOI , UOI , (1995) SCC 42 05. Gulam Abbas v. State of U.P (1982) U.P (1982) 1 SCC 71 06. Haji Suleman Yusuf Bhat v. Custodian of Evacuee Property AIR Property AIR 1954 MB 173 07. Himmatlal v. State of M.P. (1954) M.P. (1954) SCR 1122 08. In Re: Ramlila Maidan Incident Dt. 4/5. 06.2011 v. Home Secretary & Ors . (2012) 5 SCC 1 09. K. Thiagarajan @ Thozhar Thozhar Thaigu v. The Commissioner Commissioner Of Police W.P No. 26930 of 2013 10. Khatri v. State of Bihar (1981) (1981) 1 SCC 627 11. M. Kasirajan v. The District Collector W.P.(MD) W.P.(MD) No.12973 of 2013 12. Mahesh Chandra v. Regional Manager, U.P. Financial Corporation & Ors, ( 1992) 1992) SCR (1) 616 13. Nilabati Behera v State of Orissa & Ors. Ors. (1993) SCR (2) 581 14. Praveen Bhai Thogadia v. State of Karnataka (2003) Kant LJ 48 15. Premoda Medhi v. Gauhati Gauhati Roller Flour Mills Ltd , (2003) 1 Gau LR 205 16. Ramana Dayaram Shetty v. The International Airport Authority of India Ors. Ors . AIR 1979 SC 1628. 17. Rudul Shah v State of Bihar Bihar (1983) 4 SCC 141 18. S. G. Jaisinghani v. Union Of India And Ors. AIR 1967 SC 1427 (1982) 3 SCC 131 19. Sant Bir v. State of Bihar (1982) 20. Shivram Poddar v. ITO AIR 1964 SC 1095 21. Som Raj v. State of Haryana AIR 1990 SC 1176 22. State of Rajasthan v. Vidhyawati AIR 1962 SC 933 23. The Chairman, Railway Board & Ors v. Mrs. Chandrima Das & Ors. (2000) 2 SCC 465 24. . Udai Bhan Singh v. State of U.P. & Ors. AIR 1974 All 202 25. Union of India v. Bajaj Tempo Ltd. (1998) 9 SCC 281 26. Union of India v. Hidalco Industries (2003) 5 SCC 194 (198) 27. Veena Sethi v. state of Bihar (1982) 2 SCC 583 28. Whirlpool Corporation v. Registrar of Trade Marks, (1998) Marks, (1998) 8 SCC 1 (11).

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PRIMARY AUTHORITIES:

1. D.D BASU, COMMENTARY ON CONSTITUTIONAL LAW OF INDIA, VOLUME

2. 2. V.N SHUKLA’S CONSTITUTION OF INDIA, MAHENDRA P. SINGH, 326 (12TH EDITION 2013) WEB REFERENCES: 1.

WWW.HEINONLINE.ORG WWW.HEINONLINE. ORG (HEINONLINE)

2.

WWW.JSTOR.ORG (JSTOR)

3.

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

4.

WWW.MANUPATRAFAST.COM WWW.MANUPATRAFAS T.COM (MANUPATRA)

5.

WWW.SCCONLINE.CO.IN (SCC ONLINE)

6.

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. HALSBURY’S

LAWS OF INDIA, ADMINISTRATIVE LAW, LEXISNEXIS BUTTERWORTHS, VOLUME 1, 2008.

2. HALSBURY’S 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 materia to the Laws of India hence, the Petitioner has appeared before the Hon’ble High Court of Borissa under Art.226 of the Constitution of India,1950 by preferring this instant Writ Petition on behalf of the ABAPTA and this Hon’ble Court has ample jurisdiction to entertain the ins tant subject-matter.

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STATEMENTS OF FACTS



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 conditional no objection certific ate.



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 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 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 b y caning and use of tear gas which resulted res ulted injuries to various agitating a gitating 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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SUMMARYOF ARGUMENTS I.

THE

WRIT

PETITION

FILED

BEFORE

THE

HIGH

COURT

IS

MAINTAINABLE.

It is humbly submitted that the writ petition filed by the petitioner is maintainable. Firstly, Firstly, there is a Constitutional obligation on the Court to protect fundamental rights. Secondly, Secondly, fundamental rights were infringed under Article 14, 19 and 21 and therefore the writ will be maintainable on this regard. Thirdly, Thirdly, the existence of an efficacious alternative remedy by filing money suit in civil court would not oust the Petitioner from filing the writ petition as fundamental rights have been infringed.

II.

THE POWER UNDER S. 144 OF CRPC HAS BEEN MISUSED.

It is humbly submitted that S. 144 is to be applied in cases where there is imminent threat to security or there is a need for speedy remedy. remedy. Firstly, Firstly, it is settled law that the order issued under section 144 must prescribe the material facts and cannot be used for dangers which are foreseeable, but only in cases of imminent dangers. Secondly, Secondly, the use of police force amounts to arbitrary action protected by Article 14 of the Constitution. Thirdly, Thirdly, it amounts to violation of a fundamental right under Article 21 of the Indian Consti tution.

III.

THE DEFENDANT IS LIABLE FOR COMPENSATION TO THE PETITIONER

The defendant is liable for compensation to the Petitioner. Firstly, Firstly, there has been violation of fundamental right under Art. 14, 19 (1) (a), (b) &Art. 21. When a person's fundamental right is infringed, he has a public law remedy of seeking compensation from the state and this public law remedy rem edy is in addition to private law remedy by way wa y of a civil suit for damages. Secondly, Secondly, the petitioner is also liable under the principle of vicarious liability.

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ARGUMENTS ADVANCED I. THE WRIT PETITION FILED IS MAINTAINABLE BEFORE THE HIGH COURT

(¶1.) The writ petition filed by the Petitioner is maintainable, as this Hon'ble Court has a constitutional duty to entertain the instant petition [A].Further, there is infringement of fundamental rights [B] and it is independent of any alternative remedy [C].

A. This Hon'ble Court has an obligation to entertain the instant petition

(¶2.) The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. 1 It is well settled that Article 226 confers a discretionary power on the High Courts to make or issue appropriate orders and writs for the enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose. 2 (¶3.) The petitioner is a society registered under Society Registration Act, which confers them a legal personality within the jurisdiction of state. Whenever there is infringement of a fundamental right, no question of delay arises for consideration. 3 Article 226 does not describe the persons who are entitled to enforce the fundamental right by filing a writ petition before the High Court. So, in the absence of any such guide, the court might apply the English certiorari concept of "person aggrieved". (¶3.) Any person whose fundamental rights have been infracted will be at liberty to move the Court. The fundamental rights of the Petitioner have been violated under Art. 14, Art. 19(1)(a), (b) and Art. 21 and is the “person aggrieved” in the instant. Also, under the legal maxim ‘audi ‘audi alterem partem’ the Hon’ble High Court has the jurisdiction of hearing and deciding this matter as it concerns the issue of violation of fundamental rights. Consequently, 1

Durga Das Basu, Commentary on the Constitution of India (Nagpur: LexisNexis Butterworth Wadhwa, Vol. 6, 8th ed., 2012) p. 6719 2 Udai Bhan Singh v. State of U.P. & Ors., Ors ., AIR 1974 All 202 3 Haji Suleman Yusuf Bhat v. Custodian of Evacuee Property, Property , AIR 1954 Madh B 173.

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it is submitted that a refusal to entertain the instant petition would be inconsistent with the aforesaid obligation. B. Writ petition is maintainable when there is infringement of fundamental rights

(¶4.) It is humbly submitted that the petitioner is entitled to relief because, the infringement of fundamental rights, as conferred by the pro visions of Part III of the Constitution, is involved in this application. Hence a writ petition can be filed with respect to such infringement. The action of the police who is an instrument of Petitioner 4, is infringing the rights of freedom of speech, peaceful assembly and life as enshrined by the Constitution under Articles 19(1)(a), 19(1)(b) and 21 respectively. Further, there was also violation of petitioner's Fundamental Right under Art. 14, caused by the misuse of power by the Police Officials. (¶5.) It is urged that the prohibitory orders are in total violation Art. 19 (1) (a)and (b) and the same have been issued without any basis and thereby tantamount to abuse of the process of the mandate contained in S. 144 of Cr.P.C. Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitations are the basic features of a democratic system.5 (¶6.) Thus, imposing a prohibitory order under S. 144 of Cr.P.C amounts to gross violation of fundamental rights of the Petitioners. Rather, the police should evolve a mechanism to ensure law and order without infringing the fundamental right to Assembly and other basic rights guaranteed by the Constitution.6 (¶7.) The Police Officials act of forcibly evicting sleeping people destroys the essence of protection of life l ife and personal liberty libert y under Art. 21. Right to sleep forms an essential part of Article 21 which guarantees protection of life and personal liberty to all. Hence as sleep forms an essential part of living a peaceful life, it is a fundamental right. The term "life" as enshrined in Art.21 of the Constitution has received very liberal interpretation at the hands of the Supreme Court, where the Hon'ble Supreme Court has gone to the extent of declaring that

4

Alok Mittal & Ors. v. Government Of Haryana & Ors., Ors ., 2008 (98) SLJ 369 CAT In Re: Ramlila Maidan Incident Dt. 4/5. 06.2011 v. Home Secretary & Ors., (2012) Ors., (2012) 5 SCC 1 6 K. Thiagarajan @ Thozhar Thaigu v. The Commissioner Of Police, W.P No. 26930 of 2013 5

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even right to sleep is a fundamental right falling within the purview of Art. 21 of the Constitution of India. 7 (¶8.) It is humbly submitted that the action of the police officials was arbitrary and unreasonable and thus violation of Art. 14 of the Constitution. The absence of arbitrar y power is the first essential of the rule of law upon which our whole constitutional system is based. 8 In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. 9 Every state stat e action must be informed by reason and it follows that an act unimproved by reason is per se arbitrary. se arbitrary.10 A notice to evacuate given at around midnight cannot be said to be reasonable. Also, a sleeping crowd cannot be a threat, so use of tear-gas and caning was totally arbitrary and unreasonable. Therefore it is submitted that the police officials acted arbitrarily and the writ remedy can be invoked.

C. The writ is independent independent of the existing alternative remedies

(¶9.) The existence of an alternative remedy does not operate as an absolute bar on the writ court11 as it is a process that the court chooses to opt out of convenience and discretion12. Under special circumstances the High Court may grant writ remedies to a Petitioner even with the existence of an alternative remedy13. (¶10.) Where public functionaries are involved and the matter relates to the violation of Fundamental Rights or the enforcement of public duties, the remedy would still be available under the Public Law notwithstanding that a suit could be filed for damages under Private Law.14 Thus the existence of an alternative remedy is no ground for refusing writ, where there has been a contravention of fundamental right. 15

7

M. Kasirajan v. The District Collector , W.P.(MD) No.12973 of 2013 S. G. Jaisinghani v. Union Of India And Ors., Ors ., AIR 1967 SC 1427 9 Ibid . 10 Bannari Amman Sugars Ltd. v. C.T.O., (2005) 6 SCC 625 11 Shivram Poddar v. ITO, ITO, AIR 1964 SC 1095; Also see JUSTICE B L HANSARIA’S, WRIT JURSIDICTION (3 ed. 2005). 12 JUSTICE B L HANSARIA’S, WRIT JURSIDICTION (3 ed. 2005); Union of India v. Hidalco Industries (2003) 5 SCC 194 (198); Union of India v. Bajaj Tempo Ltd., (1998) 9 SCC 281. 13 Whirlpool Corporation v. Registrar of Trade Marks, Marks, (1998) 8 SCC 1 (11). 14 The Chairman, Railway Board & Ors v. M rs. Chandrima Das & Ors., Ors ., (2000) 2 SCC 465 15 Himmatlal v. State of M.P., (1954) M.P., (1954) SCR 1122. 8

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(¶11.) Therefore, it is humbly submitted by the Pet itioner, that the writ petition petit ion filed would be maintainable.

II. THE POWER UNDER S. 144 OF CR.P.C HAS BEEN MISUSED

(¶12.) An order passed under S. 144 is administrative in nature and not judicial or quasi judicial, is amenable to writ jurisdiction under Art. 32 and 226 of the constitution, if it violates fundamental right.16 The power under S.144 of Cr.P.C has been misused, as S. 144 of CrPC applies to cases of imminent dangers [A]. Further, the use of police force amounts to arbitrary action protected by Art. 14 of the Constitution [B] and there has been violation of fundamental right under Art. 21 of the Constitution [C].

A. S. 144 of Crpc applies to cases cases of nuisance and and apprehended apprehended dangers

(¶13.) The nuisance referred to is public nuisance, and the danger apprehended is disturbance of public tranquillity, or riot, or affray. 17 It is humbly submitted that the Petitioner sought permission from the police authority for organizing a relay hunger strike and was thus granted a conditional no objection certificate for the same. The relay hunger strike was to bring to the attention of Petitioner, the regularization of 1500 ad-hoc ad-hoc teachers. (¶14.) The provisions of S. 144, CrPC are meant to be used only in the grave circumstances for maintenance of public place. 18 The gist of the action under this section is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. A mere statement by the Magistrate that he is satisfied that there is every possibility for serious breach of peace between parties as well as public tranquillity is not sufficient to exercise power under S. 144(1) and 144(2) CrPC. 19

16

Gulam Abbas v. State of U.P., U.P., (1982) 1 SCC 71 Ratanlal & Dhirajlal, The Code of Criminal Procedure, Procedure , (Nagpur: LexisNexis Butterworth Wadhwa, 19 th ed., 2010) p. 385. 18 Praveen Bhai Thogadia v. State of Karnataka, Karnataka , (2003) Kant LJ 48 19 Premodha Medhi v. Gauhati Roller Flour Mills Ltd., (2003) Ltd., (2003) 1 Gau LR 205 17

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B. The use of police force amounts to arbitrary action protected by Art. 14 of the constitution

(¶15.) The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is projected by Art. 14 and it must characterize every State action, whether it be under authority of law or in exercise of executive power without making of law. 20 The public functionaries f unctionaries should s hould be duty conscious rather power charged. 21 Its actions and decisions which touch the common man have to be tested on the touchstone of fairness and justice. 22 That which is not fair and just is unreasonable. And what is unreasonable is arbitrary. An arbitrary action is ultra vires. The prohibitory order under S. 144 of CrPC does not in any way allow the police to enforce it in an unreasonable manner. Their action is termed unreasonable as eviction orders at midnight, when the crowd is sleeping and they are no threat, use of caning and tear gas on such crowd, who is in a semi-conscious state, the police seems to have misused their power arbitrarily. It would have been reasonable if the police ordered the crowd to vacate the place next morning and if then the crowd was violent, then use force. In any country, especially a democracy, the balancing of interests must be ensured and no organ of the state should have unlimited or unguided powers. This is applicable equally to the public as well to the police. The police in this case had discretionary and unguided powers which led to violation of fundamental right of Petitioner. Discretion means sound discretion guided by law or governed by known principles of rules, not by whim or fancy or caprice of the authority.23

C. There Has Been Violation of Fundamental Right Under Art. 21 Of The Constitution

(¶16.) Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by the “State” as defined in Article 12. Under the canopy of Article 21 so many rights have found shelter, growth and nourishment. Thus, the bare necessities, minimum and

20

Ramana Dayaram Shetty v. The International Airport Authority of India Ors. Ors . AIR 1979 SC 1628. Mahesh Chandra v. Regional Manager, U.P. Financial Corporation & Ors., Ors., (1992) SCR (1) 616 22 Ibid. 23 Som Raj v. State of Haryana, AIR 1990 SC 1176 21

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basic requirements that is essential and unavoidable for a person is the core concept of right to life. Similarly, Sleep is essential for a human being to maintain the delicate balance of health necessary for its very existence and survival. Sleep is, therefore, a fundamental and basic requirement without which the existence of life li fe itself would be in peril. A citizen has a right to sound sleep because it is fundamental to life and falls within the purview of Art. 21. 24

IV.

THE DEFENDANT IS LIABLE FOR THE COMPENSATION

(¶17.) The defendant is liable for compensation on grounds of violation of fundamental rights. [A] Further, they are also liable under Art. 300(1) of the Indian constitution which states the common law principle of vicarious liability. [B] A. Compensation must be provided, if there is violation of fundamental rights

(¶18.) The seed of compensation for the infraction of the rights implicit in Article 21 was first sowed in Khatri in Khatri25, Sant Bir 26 and Veena Sethi27, which sprouted with such a vigorous growth that it finally enabled the Court to hold that the State is liable to pay compensation. This dynamic move of the Supreme Court resulted in the emergence of compensatory jurisprudence for the violation of right to personal liberty through Rudul Shah v. State of Bihar 28 , which recognised the principle of monetary compensation for violation of fundamental rights. In this case, the Petitioner's fundamental right is violated under freedom of speech and expression enshrined in Art. 19 (1) (a) of Constitution, under freedom of peaceful assembly without arms enshrined in Art. 19 (1) (b) of constitution, by arbitrary action of police used unreasonably which is violative of Art. 14 of Constitution, under right to sleep which is violative of Art. 21 enshrined in Constitution. (¶19.) A claim in public law for compensation justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only

24

Supra, Supra, Note 5. Khatri v. State of Bihar , (1981) 1 SCC 627 26 Sant Bir v. State of Bihar , (1982) 3 SCC 131 27 Veena Sethi v. state of Bihar , Bihar , (1982) 2 SCC 583 28 (1983) 4 SCC 141 25

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practicable mode of redress available for the contravention c ontravention made by the State or its servants in the purported exercise of their powers. 29 B. The Petitioner is liable under the common law principle of vicarious liability

(¶20.) The legal basis of liability of the respondent comes under Art. 300(1) of the Indian constitution. It provides a platform for state to sue or be sued as juristic personality. It is well settled that ambit of Article 300 included tortious liability of State and its scope is not limited to suit or right to one in respect of contractual liability only. The doctrine of vicarious liability is a rule of responsibility by which the defendant will be found liable for the torts of another, without proof of fault. 30 The whole idea of vicarious liability of state is based on 3 principles, Respondent superior, Qui facit per alium facit per se and socialisation of compensation. (¶21.) 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 tortious act of its servants. 31 The vicarious liability of state is linked with the negligence of its officers. 32 The courts now interpret the constitutional provisions to recommend either an ex-gratia payment by the government or payment of compensation to the victims suffering harm owing to the unlawful conduct of the servants of the government in discharge of their functions, regardless of the sovereign nature of those functions. 33 In this case, when the defendant claim against petitioners, the doctrine of contributory negligence, to an extent they admit, the negligence of police officials in taking due care of petitioners. Thus, it is humbly submitted that the petitioner are liable for compensation under the principle of vicarious liability. (¶22.) The old distinction between sovereign and non-sovereign functions should no longer be invoked to t o determine the liability lia bility of a state. state .34 The expression king can do wrong has now been interpreted to mean that king has no legal power to do wrong. 35 The defence of sovereign immunity which is implicit to Constitution of India Art. 300 (1) is inapplicable and alien to the concept of guarantee of fundamental rights, therefore, there is no question of such

29

Nilabati Behera v State of Orissa & Ors., Ors., (1993) SCR (2) 581 Ken Oliphant, The Law of Tort , (LexisNexis Butterworths, 2 nd ed., 2013) p. 87. 31 State of Rajasthan v. Vidhyawati, Vidhyawati , AIR 1962 SC 933 32 Halsbury's Laws of India, Administrative India, Administrative Law, Law, LexisNexis Butterworths, Vol. 1, 2008, p. 005.227. 33 Halsbury's Laws of India, Tort, LexisNexis Butterworths, , Vol. 29(1), 2008, p. 127. 127. 34 nd Dr. R. K. Bangia, Law Bangia, Law of Torts, Torts, (Haryana: Allahabad Law Agency, 22 ed., 2011) p. 65 35 A S Mittal v. State of Uttar pradesh, pradesh , (1989) 3 SCC 223 30

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defence being available in a constitutional remedy. 36 Since, the petitioner's fundamental rights were violated, the defence of sovereign soverei gn immunity will therefore not apply in this case.

36

Consumer Education and Research Centre v. UOI, UOI, (1995) SCC 42

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PRAYER In light of facts presented, questions raised, arguments advanced and authorities cited, Counsels for the Petitioners most humbly pray before this Hon’ble Court, to adjudge and declare that: 1. The Petition Filed by the “ABAPTA” in this Hon'ble court is maintainable. 2. The Fundamental right of ABAPTA have been violated. 3. The power under S. 144 of CrPC has been misused. The Petitioners thus prays for the following relief from the court: 1. Issue a writ of mandamus against the Government of Borissa. 2. Award compensation to ABAPTA as there has been gross violation of their legal and fundamental rights. The Court being satisfied, may also make any such order as it may deem fit in the light of Justice, Equity and Good conscience. And for this act of kindness the Petitioners shall as duty bound ever humbly pray.

Respectfully submitted, Counsels Appearing for Petitioners

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Moot Petitioner KIMCC 2016

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