Moot Court

? The first defendant Lokumal, was a temporary employee of the appellant State, as a motor driver on probation. ? In February 1952, he was employed as the driver of government jeep car, registration no. RUM 49, under the collector of Udaipur. ? The car had been sent to a workshop for necessary repairs. After repairs had been carried out, the first defendant, while driving the car back along a public road, in the evening of February 11, 1952, knocked down one Jagdishlal, who was walking on the footpath by the said of the public road in Udaipur city.

? causing him multiple injuries, including fractures of the skull and backbone, resulting in his death three days later, in the hospital. ? The plaintiffs who are Jagdishlal’s widow and a minor daughter, aged three years, through her mother as next friend sued the said Lokumal and the State of Rajasthan for damages for the tort aforesaid. They claimed the compensation of Rs. 25,000/- from both the defendants. ? The first defendant remained ex-parte. The suit was contested only by the second defendant on a number of issues.

? Both the Courts below have agreed in finding that the first defendant was rash and negligent in driving the jeep car resulting in the accident and the ultimate death of Jagdishlal. The second defendant, who was the respondent in the High Court, and is the appellant before us, contested the suit chiefly on the ground that it was not liable for the tortious act of its employee. ? The Trial Court, decreed the suit against the first defendant ex-parte, and dismissed it without costs against the second defendant.

? On appeal by the plaintiffs, the High Court of Rajasthan allowed the appeal and decreed the suit against the second defendant also, with costs in both the Courts. ? The State of Rajasthan applied for and obtained the necessary certificate that the case fulfils the requirements of Art. 133(1)(a) of the Constitution of India. High Court rightly observed that an important point of law of general public importance, namely, the extent of the liability of the State, in tort, was involved. ? Now the petition lies before this Hon’ble Court. [pic].

ISSUES RAISED [pic] 1. Whether Doctrine of Sovereign Immunity applies to the state of Rajasthan or not. [pic] SUMMARY OF ARGUMENTS [pic] 1. Whether Doctrine of Sovereign Immunity applies to the state of Rajasthan or not. [pic] ? No, Doctrine of Sovereign Immunity do not apply in this case as such it is not under Indian constitution ? It existed in England before the enactment of Crown Proceedings Act, 1947, never operated in India. [pic] ARGUMENTS ADVANCED [pic] 1. Whether Doctrine of Sovereign Immunity applies to the state of Rajasthan or not.

The Old and archaic concept of Sovereign immunity that “King can do no wrong” still haunts us, where the state claim immunity for its tortious acts and denies compensation to the aggrieved party. The doctrine of sovereign immunity is based on the Common Law principle borrowed from the British Jurisprudence that the King commits no wrong and that he cannot be guilty of personal negligence or misconduct, and as such cannot be responsible for the negligence or misconduct of his servants. Another aspect of this doctrine was that it was an attribute of sovereignty that a State cannot be sued in its own courts without its consent.

No application of Sovereign Immunity to negligence causing threat/deprivation to life under Article 21 of the Constitution: Without prejudice to the aforesaid judicial pronouncements, even otherwise the concept of immunity in respect of sovereign functions has no application where the fundamental right to life as guaranteed by Article 21 of the Constitution of India has been transgressed as held in the judgment of the High Court of Andhra Pradesh in Challa Ramkonda Reddy Vs. State of AP[2], which has been subsequently approved by the Supreme Court in.

State of A. P. v. Chella Ramakrishna Reddy[3] . From the said judgments, the following points emerge: • The sovereign immunity is not applicable to the cases in public domain i. e. in cases of writ petitions under Article 32 & 226 of Constitution of India. The principle is equally applicable to private law domain, i. e. claim of damages under tort law, where the right to life as guaranteed by Article 21 Constitution of India is violated, as the said right is sacrosanct, inalienable, and indefeasible.

• Though the principle of Kasturi Lal Case[4] is not applicable where the right to life as guaranteed by Article 21 is transgressed. In such cases, damages have to be awarded for the tortuous acts of government servant depriving the person of his life and liberty except in accordance with the procedure established by law. • The Negligent act causing the deprivation of life and property of a person is to be held as violative of Fundamental right to life as guaranteed under Article 21 of the Constitution of India.

• Last but not the least, the Hon’ble Supreme Court has also concluded in the following words. “….. the law has marched ahead like a Pegasus but the Government attitude continues to be conservative and it tries to defend its action or the tortious action of its officers by raising the plea of immunity for sovereign acts or acts of State, which must fail. ” ARTICLE 21-protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to procedure established by law. Kasturilal V. State of UP

The ruling in this case was given holding that the act, which gave rise to the present claim for damages, has been committed by the employee of the respondent during the course of its employment. Also, that employment belonged to a category of sovereign power. This removed any liability on the part of the state. In this case, the plaintiff had been arrested by the police officers on a suspicion of possessing stolen property. Upon investigation, a large quantity of gold was found and was seized under the provisions of the Code of Criminal Procedure.

Ultimately, he was released, but the gold was not returned, as the Head Constable in charge of the maalkhana, where the said gold had been stored, had absconded with the gold. The plaintiff thereupon brought a suit against the State of UP for the return of the gold or alternatively, for damages for the loss caused to him. It was found by the courts below, that the concerned police officers had failed to take the requisite care of the gold seized from the plaintiff, as provided by the UP Police Regulations. Judgment: The trial court decreed the suit, but the decree was reversed on appeal by the High Court.

When the matter was taken to the Supreme Court, the court found, on an appreciation of the relevant evidence, that the police officers were negligent in dealing with the plaintiff’s property and also, that they had not complied with the provisions of the UP Police Regulations. However, the Supreme Court rejected the plaintiff’s claim, on the ground that “the act of negligence was committed by the police officers while dealing with the property of Ralia Ram, which they had seized in exercise of their statutory powers.

The power to arrest a person, to search him and to seize property found with him, are powers conferred on the specified officers by statute and they are powers which can be properly categorized as sovereign powers. Hence the basis of the judgment in Kasturi Lal was two-fold – The act was done in the purported exercise of a statutory power. Secondly, the act was done in the exercise of a sovereign function. Challa Ramkonda Reddy Vs. State of AP: In the judgment of the High Court of Andhra Pradesh in Challa Ramkonda Reddy Vs.

State of AP, it was held that the plea of sovereign immunity was not available, where there was a violation of the fundamental rights of the citizens. It was a case where a person arrested by the police was lodged in a cell in the jail. He expressed his apprehension to the authority in charge of the jail, that his enemies were likely to attack and kill him in the jail. This apprehension was not given any consideration by the authorities. During the particular night, there were only two persons guarding the jail, instead of the usual six.

The enemies of the arrested person entered the jail during the night and shot him dead. The legal representatives of the deceased filed a suit for damages. The trial court found that the authorities were negligent in guarding the jail and that the death of the deceased was attributable to such negligence. However, the suit was dismissed on the ground that the arrest and detention of the deceased in jail was in exercise of sovereign functions of the State. During the hearing of the plaintiff’s appeal, the State relied upon the decision of the Supreme Court in Kasturi Lal.

The High Court, however, held that where the fundamental rights of the citizens are violated, the plea of sovereign immunity, which is assumed to be continued by article 300 of the Constitution, cannot be put forward. This view has been approved by the Supreme Court in AIR 2000 SC 2083. [State of A. P. v. Chella Ramakrishna Reddy]. Saheli V. Commissioner of Police: Saheli V. Commissioner of Police was another milestone in the evaluation of compensation jurisprudence in writ courts.

The masterpiece judgement in Kasturi Lal was rightly quoted in this case. The State was held liable for the death of nine year old child by Police assault and beating. Delhi Administration was ordered to pay compensation of Rs. 75000/-. The significance of this case is that the Delhi Administration was allowed to recover money from those officers who are held responsible for this incident. English Law [pic] Crown Proceedings Act, 1947 1947 CHAPTER 44 10 and 11 Geo 6.

An Act to amend the law relating to the civil liabilities and rights of the Crown and to civil proceedings by and against the Crown, to amend the law relating to the civil liabilities of persons other than the Crown in certain cases involving the affairs or property of the Crown, and for purposes connected with the matters aforesaid. In India The entity sought to be made liable is not the government but the State. So far as the government is concerned, it may well say that the statutory authority is neither accountable nor subordinate to it.

Hence the government cannot be visited with the consequences flowing from a wrong order made by a statutory authority. As far as the State is concerned, it cannot put forward any such plea inasmuch as the statute is enacted by it by Legislature. The appointment of the authority is also done either by the Statute itself or by such authority as may be authorised by the Statute. The act of the statutory authority in such a case is an act done for and on behalf of the State. Hence the state is held liable.

State’s liability for the acts or omissions of statutory authorities arises only in cases where the statutory authority acts outside his legal authority while purporting to act pursuant to the legal authority conferred upon him and the act or omission, which causes or results in damage to a person, is not within the ambit of the statutory protection, if any, contained in such enactments. This rule is evolved for the obvious reason that an act done under a statute and in accordance with the statute can never amount to a tort as was said by the Supreme Court in Martin Burn Ltd. Vs. Calcutta Corporation.

The Court said “A result flowing from a statutory provision is never an evil”. Article 300; “The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.

” [pic] PRAYER [pic] Therefore in the light of the facts presented, issues raised, arguments advanced, reasons given and authorities cited, the counsel for the Respondent humbly pray before this Hon’ble Court that; Plea of appellant regarding sovereign immunity be rejected, state should be vicariously liable for the act of its servant and case should be dismissed with costs. All of which is most respectfully submitted _____________________ Counsel for Respondent.