11TH INTRA UNIVERSITY MOOT COURT COMPETITION, 2018

NATIONAL LAW UNIVERSITY ODISHA

Code: 158R

Before

THE HON’BLE CITY CIVIL COURT OF VIVAADBHOOMI

[UNDER SECTION 9 OF CIVIL PROCEDURE CODE]

In the matter of:

KENDRA OCCUPANTS v. MUNICIPAL CORPORATION OF VIVAADBHOOMI

MEMORIAL for THE RESPONDENT

 TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................... 2

LIST OF ABBREVIATIONS .................................................. Error! Bookmark not defined.

INDEX OF AUTHORITIES...................................................................................................... 3

STATEMENT OF JURISDICTION.......................................................................................... 4

STATEMENT OF FACTS ........................................................................................................ 5

ISSUES RAISED ....................................................................................................................... 7

Issue 1 ................................................................................................................................ 7

Issue 2 ................................................................................................................................ 7

SUMMARY OF ARGUMENTS ............................................................................................... 8

BODY OF ARGUMENTS ........................................................................................................ 9

A. The Agreement does not specify adequate consideration to be paid by the Kendra
occupants............................................................................................................................ 9

B. The contract is void under section 23 of the indian contract act, 1872. .................... 10

PRAYER FOR RELIEF .......................................................................................................... 13

 INDEX OF AUTHORITIES

Cases

Mohd. Salim vs. State of Uttarakhand and ors., 2017 ............................................................. 11

Hogan vs Directcor of public prosecutions [2007] All ER (D) 253 (Feb) ................................ 9
OlgaTellis vs. Bombay Municipal Corporation (1985) 3 SCC 545 AIR 1986 SC 180 ........... 10

Statutes

Constitution of India, 1860 ...................................................................................................... 12

Indian Penal Code, 1860 .......................................................................................................... 11
Section 23, The Indian Contract Act, 1872.............................................................................. 11
The Indian Contract Act, 1872, Section 23.............................................................................. 11
 STATEMENT OF JURISDICTION

The Respondent humbly submits to the jurisdiction of the City Civil Code of Vivaadhbhoomi
under Section 9 of the Civil Procedure Code, 1908.

The present memorandum sets forth the facts, contentions and arguments.
 STATEMENT OF FACTS

BACKGROUND
1. Vivaadbhoomi is a city located in Orissa where the Municipal Corporation of
Vivaadbhoomi (MCV) has been maintaining a public park on the banks of the river of
Mahanadi which is utilized by the citizens of the city for recreational, cultural and
social events. The MCV spends a considerable sum of money every month for the
maintenance and beautification of the park. At the center of the park there is a spot
containing hundreds of tall trees placed together densely which shields the people
from the excessive heat.

SETTLEMENT OF THE KENDRA PEOPLE

2. Starting from April 2018, several homeless people from across Vivaadbhoomi
encroached the Vruskh Kendra, and started their own occupations nearby the park, or
found menial jobs close or nearby the park and till June 2019, for approximately one
and a half years, 600 homeless people gathered upon the area of the park along with
their families. The MCV knew about the activities happening in the Kendra, but took
no action since the then Chairman of the MCV, Mr. Karun, sympathized with the
occupants.
3. As his tenure reached an end, several organizations OPUPL , AEFV and EORC
formed by the residents of the city stood against the MCV regarding the ‘permanent’
presence of the Kendra occupants in the park.

FORMULATION OF THE AGREEMENT

4. Mr. Karun, feared that the next Chairman might not show any sympathy towards the
Kendra occupants and signed an agreement with them on 28th June 2019. The
agreement was regarding the recognition of their fundamental right to livelihood, and
to stop their eviction from the facility before 1st October 2022, and by 31st August
2022, the MCV shall construct an apartment complex with a capacity to house 1800
people wherein all the occupants will be allotted houses on a random basis. The
occupants shall be given three weeks to vacate the Kendra.
 5. It also stated that every Kendra occupant, except minors, shall pay a sum of ₹10 per
month to the MCV, beginning from 1st July 2019 and ending in 1st September 2022.
The occupants shall comply with the Chairman’s order in this respect and shall vacate
the Kendra when ordered to do so without any resistance.

RESISTANCE BY THE MCV AND THE NEW CHAIRMAN

6. After the retirement of Mr. Karun, Mr. Zaalim took charge as the new Chairman of
MCV with effect from 1st July 2019. He began a mass eviction programme under
which all the occupants were ordered to vacate the park by 7th July 2019.

FILING OF THE SUIT

7. In response to this, the occupants filed a civil suit in the City Civil Court of
Vivaadbhoomi, seeking a restraining degree from eviction. A stay was granted on the
mass eviction programme until the suit was decided. The MCV claimed that the
agreement was void as it lacked adequate consideration and assuming arguendo that it
was formed, it contravened public policy under Section 23 of the Indian Contract Act.
8. The matter is posted for final hearing before the Court from 16th to 18th August.
 ISSUES RAISED

ISSUE 1
DOES THE AGREEMENT SPECIFY ADEQUATE CONSIDERATION TO BE PAID BY
THE KENDRA OCCUPANTS?

ISSUE 2
IS THE CONTRACT VOID UNDER SECTION 23 OF THE INDIAN CONTRACT ACT,
1872?
 SUMMARY OF ARGUMENTS

Issue 1. It is argued that the consideration of the contract for the construction of a new
communal facility is not adequate as the chairman was not in a right state of mind to enter
into the contract making the consideration inadequate. Mr. Karun was acting as an agent of
the MCV but he acted outside the scope of his authority which renders the MCV from any
liability arising out of the contract so formed.

Issue 2. It is argued that the contract is void under section 23 of the Indian Contracts Act
1872 as [1] it defeats the provision of the law [2] injury to the property of another or [3] is
opposed to public policy which renders the contract void and makes the occupants
unauthorized to stay in the park and gives the authority to the Chairman and MCV to evict
the Kendra occupants from the ‘legal entity’ i.e the park of vivaadbhoomi.
 BODY OF ARGUMENTS

A. THE AGREEMENT DOES NOT SPECIFY ADEQUATE CONSIDERATION TO BE PAID BY

THE KENDRA OCCUPANTS

The agreement signed between the Kendra occupants and the chairman of the MCV on 28 th
June 2019 regarding the stay in the public park, their relocation and the construction of the
apartment complex using the funds of the MCV. The agreement formed did not have
adequate consideration since the chairman was not in a right state of mind since he
sympathized with the Kendra occupants and he was going to retire in 3 days and knew that
the next chairman might not be sympathetic with the occupants and evict them under section
7 of the MCV act 1996. So, in order to save them from lawful eviction he made a contract
with inadequate consideration and as stated in the case of Hogan vs Director of public
prosecutions1 that a person not in a right state of mind and even if the consideration of the
contract so formed has some value in the eyes of the law it is still considered to be inadequate
in nature.

I. The Principal should not be held liable for the Unauthorized acts of the
agent.

In accordance to the section 228 of Indian Contracts Act 1872, which clearly
states that the Principal is not bound by his agent’s act “where he does an act
which he was not authorized to do, and what he does beyond the scope of his
authority cannot be separated from what is within it, the principal is not bound to
recognize the transaction” and according to Section 4 of the MCV the chairman
only had the authority to make contracts regarding the use or non-use of
Communal Facilities and not concerning the funds of the MCV for the
construction of new one’s which was the main object of the contract , therefore,
Mr. Karun the then chairman of the MCV who was acting as an agent of the MCV
when he entered into a contract with the Kendra occupants on 28th June 2019 he
was acting beyond the scope of his authority.

1
Hogan vs Directcor of public prosecutions [2007] All ER (D) 253 (Feb)
 So, in accordance with the above facts we can conclude that the MCV is not
bound by the contract formed with the Kendra occupants as although he had the
power to enter into other contracts ,but, his authority regarding the construction of
a new communal facility cannot be separated from his authority concerning the
use or non-use of a communal facility which makes the contract non-enforceable
on the MCV and releasing them from any liability.

B. THE CONTRACT IS VOID UNDER SECTION 23 OF THE INDIAN CONTRACT ACT, 1872.

It is humbly submitted before the court that the contract formed on 28th June 2019 is void
under section 23 of Indian contracts act 1872 as [I] it defeats the provision of the laws [II] it
causes injury to the property of another and [III] it is opposed to public policy.

I. It defeats the provision of the laws.

On 28th June 2019, an agreement was formed between Mr Karun, the then chairman of
the MCV and the Kendra occupants regarding their illegal stay in the public park of
Vivaadbhoomi which is a legal entity as discussed in the case of Mohd. Salim2 that if a
place or thing serves the needs of the public or the society and is used for the common
good it can be classified as a public entity and since the park was used as a source of
recreation and social welfare events conducted by NGO’s , it comes under the definition
of a ‘legal entity’.

In the case of Olga Tellis3 a precedent was set that encroachers can be evicted from the
concerning property if they are residing there for less than 20 years although the right to
livelihood cannot be separated from the right to life under article 21 of the Indian
Constitution it does not gives them a right to create public nuisance and encroach on
public property.

The so called Kendra occupants with whom the agreement was signed regarding their
illegal stay in the Vruksh Kendra is, therefore, void under section 23 of the Indian
Contracts Act 1872 as it allows them to encroach on the living entity as stated in section

2
Mohd. Salim vs. State of Uttrakhand
3
OlgaTellis vs. Bombay Municipal Corporation (1985) 3 SCC 545 AIR 1986 SC 180
 441 of IPC4 “that if a person lawfully enters into or upon a property and unlawfully
remains there with the intent thereby to intimidate, insult or annoy any person is said to
commit an offence” therefore these occupants who are annoying and intimidating the
taxpayers and the general public residing around the park comes under the definition of
encroachment. Hence, the contract signed between the Kendra occupants and the
chairman of the MCV is void under section 23 of The Indian Contracts Act as it allows
for the illegal stay in the legal entity which defeats the provision of the section 447 of IPC
and Environment Protection Act 1996.

II. It causes injury to the property of another.

The Kendra occupants have encroached upon the public park located on the banks
of the Mahanadi river, a park which all the residents of Vivaadbhoomi have the
right to use and according to Section 23 of the Indian Contract Act, 1872, any
contract thus formed which causes injury to any person or property shall be void5.
It is humbly submitted before the court that the homeless people who encroached
the Vruksh Kendra located within the park caused injury to the park itself, as a
legal entity [1] and have interfered with the rights of the residents to enjoy the
facility for recreational, cultural and social purposes [2].
1. The park is a legal entity.
As stated in the Mohd. Salim case6, any entity, living inanimate, objects or
things can be stated as a legal entity if it is useful enough to be recognized by
the Court of Law to be sub serving the needs of the society and the people in
general. The park in question can also be asserted for the same, as it is a place
for the cultural, recreational and social activities of the residents and the
nearby people, which in turn is an essential need of the society. Thus, the
facility can also be classified as a legal entity and any injury caused to it in the
form of encroachment would result in the violation of the provisions as
mentioned in the Section 23of the Indian Contract Act, 1872.

4
Indian Penal Code, 1860
5
The Indian Contract Act, 1872, Section 23
6
Mohd. Salim vs. State of Uttarakhand and ors., 2017
 III. It is opposed to public policy.

Public policy can be defined as a legislation founded on the current needs of the
community and the Section 20 of the MCV Act, 1996, clearly states that the MCV shall
be guided by this policy, and article 19(5) and article 19(6)7 of the constitution, which
states that nothing in sub-clause 19(d ,e and g) shall affect the operation of any law and
will prevent the state from making a law against the interest of the general public,
therefore even the occupants have the right to reside in any part of the country, it should
not stop the MCV from creating a policy i.e section 20 of the MCV act 1996,in
consonance with the interests and comfort of the general public

Now, to conclude since the Kendra occupants were not evicted from the public park
because of the contract with Mr. Karun which we concluded to be void. The occupants ,
therefore , becomes unauthorized and MCV and the Chairman have the full authority to
evict them from the park under section 447 of IPC and section 7 of the MCV Act
respectively.

7
Constitution of India, 1860
 PRAYER FOR RELIEF

In the light of the facts stated, arguments advanced and authorities cited; it is most humbly
prayed and implored before the Hon’ble City Civil Court of Vivaadbhoomi that is may be
pleased to:

1. Declare that the contract formed between the Kendra occupants and the
MCV was void in nature.
2. The MCV is hereby giving a written eviction notice to the Kendra
occupants and we humbly request the court to remove the injunction from
the eviction program of the Kendra occupants to prevent their further
encroachment on Vruksha Kendra.

And pass any other order, direction, or relief that it may deem fit in the best interests of
justice, fairness, equity and good conscience.

For this act of kindness, the respondent shall duty bound forever pray.