BEFORE THE HON’BLE SUPREME COURT OF INDICA

DEFENDANT JURISDICTION

APPEAL No. 1/2021 UNDER ARTICLE 132 READ WITH ARTICLE

133(1) OF THE CONSTITUTION OF INDICA

K.D. & Firm…………………………………………………………………………

APPELANT
Vs.
State of Rajasthan……………………………………………………………………
RESPONDENT

CLUBBED WITH
APPEAL No. 2/2021 UNDER ARTICLE 133(1) OF THE
CONSTITUTION OF INDICA
K.D. & Firm............................................................................................................
APPELANT
Vs.
State of Rajasthan...................................................................................................
RESPONDENT
MEMORIAL FILED ON BEHALF OF THE K.D. & FIRM (DEFENDANT)
BEFORE THE HON’BLE SUPREME COURT OF INDICA
Name : Aditya Rajesh Bareliwala
PRN NO. : 2020033800073703
ROLL NO. : 16
 TABLE OF CONTENTS

Table of Contents
TABLE OF CONTENTS...................................................................................................................................2
LIST OF ABBREVIATION................................................................................................................................3
INDEX OF AUTHORITIES...............................................................................................................................4
STATEMENT OF JURISDICTION.....................................................................................................................7
STATEMENTS OF FACTS...............................................................................................................................8
ISSUES FOR CONSIDERATION....................................................................................................................10
SUMMARY OF ARGUMENTS......................................................................................................................11
ARGUMENTS..............................................................................................................................................12
PRAYER......................................................................................................................................................23

2|Page
 LIST OF ABBREVIATION

ABBREVIATIONS FULL FORMS

V./VS VERSUS
SEC SECTION
COI CONSTITUTION OF INDIA
SCC SUPREME COURT CASES
SC SUPREME COURT
HC HIGH COURT
K.D & F K.D & FIRM
IPO INITIAL PUBLIC OFFER
GOVT/GOVT. GOVERNMENT
ANR. ANOTHER
QB QUEEN’S BENCH
ART ARTICLE
ALL ER ALL ENGLAND REPORTER
GOI GOVERNMENT OF INDIA
AIR ALL INDIA REPORTER
U.P. UTTAR PRADESH
GUAH GUAHATI
IBID (LATION FOR IN THE SAME PLACE)
U/S UNDER SECTION
UOI UNION OF INDIA
& AND
FMCG FAST MOVING CONSUMER GOODS

3|Page
 INDEX OF AUTHORITIES
CASES

1. Amarchand Sobhachand v CIT (1971) AIR 720 (SC)

2. Asst. Controller, Central Excise v. N T Co., AIR 1972 SC 2563

3. Bennet Coleman Cov Union of India. AIR 1973 SC 106

4. Bishambha Dayal Chandra Mohan ... vs State Of Uttar Pradesh &Ors 1982 AIR 33,

1982 SCR (1)1137

5. Chiranjital Chaudhari vs. Union of India. AIR 1951 SC

6. CIT v Maganlal Chaganlal (P) Ltd. (1997) 11 SCC 557 (SC)

7. CIT v Orissa Corp ltd. (1986) 159 ITR 0078 (SC)

8. Commissioner of Income Tax v P. Mohanakala (2007) 210 CTR 20 (SC)

9. Council of Scientific and Industrial Research v K. G. S. Bhatt (1989) AIR 1972 (SC)

10. Delhi Cloth and General Mills Lud y Union of India. 1983 4 SCC 166

11. G.Arunkumar vs State Of Tamil Nadu, W.P.No.26236 of 2019

12. Gurbakhsh Singh v State of Punjab (1955) AIR 320 (SC)

13. Hero Vinoth (minor) v Seshammal (2006) AIR 2234 (SC)

14. Kasturilal v. State of U. P., (1965) 1 SCR 376= (AIR 1965 SC 1039)

15. M.P. v. ChironjiLal,AIR 1981 MP 65

16. Nain Singh Bhakuni v. Union of India, AIR 1998 SC 622

17. NobinChanderDey v. Secretary of State of India. (1876) ILR 1 Cal 12

18. P & O Navigation Company v Secretary of State for India (1861) 5 Bom. H.C.R. App.

4|Page
19. Raghunath G. Pauhale v ChaganLalSundarji& Co.(1999) 8 SCC 1 (SC)

20. Ram Gulam vs state of UP AIR 1950 All 206

21. Sankaravaidivelu Pillai v. Secretary of State for India, Council, (1905) 15 MLJ 32

22. Santosh Hazari v PurushottamTiwari (2001) 3 SCC 179 (SC)

23. Secretary of State v. Hari Bhanji, (1882) ILR 5 Mad 273

BOOKS

1. Company Law by Avatar Singh, Eastern Book Company, 15th Edition, 2007

2. Constitution Of India, V. N. Shukla [2019 edition].

3. Constitutional Law Of India, Dr. J.N. Pandey [2019 edition].

4. Contract and Specific Relief by Avatar Singh, Eastern Book Company, 11th Edition,
2013

5. Dr. R.K. Bangia, Law of Torts, Twenty Third Edition, 2010, Allahabad Law

Agency, Mathura Road, Faridabad(Haryana)

6. H.M. Seervai, Constitutional Law Of India (4th edn. Vol 1 2010)

7. Introduction To The Constitution Of India, Dr. D. D. Basu [2011 edition].

8. M P Jain Indian Constitutional Law [2018 edition].

9. Paras Diwan, Administrative Law, Allahabad Law Agency, India, 2004, 3rd Edition

10. Ratanial&Dhirajlal, The Law of Torts, Lexis Nexis, Gurgaon 26" cdn. 2010

11. S.P. Sathe, Administrative Law, Lexis Nexis, India, 2009, 7th Edition

12. The Indian Constitution: Cornerstone Of A Nation, Austin Granville [ 1999 edition].

5|Page
LIST OF STATUTES

1) Constitution of India, 1950

2) Indian Contract Act, 1872

3) Disaster Management Act, 2005

4) Essential Commodities Act, 1955

Websites

1) https://indankanoon.org

2) https://www.lawctopus.com

3) http://www.legalservicesindia.com

6|Page
 STATEMENT OF JURISDICTION

The Counsel for the respondents humbly submits before the Hon'ble Supreme Court of Indica.
The memorandum is presented on behalf of the respondents.
The memo of appeal filed by the appellant, Rajeev, who is representing KD and Co. pursuant to
article 1321of the Constitution of Indica read with article 133(1)2 of the Constitution of Indica.

The respondent reserves the right to challenge the same.

An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory
of India, whether in a civil, criminal or other proceeding, if the High Court certifies under article 134A that the
case involves a substantial question of law as to the interpretation of this Constitution.
(3) Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that
any such question as aforesaid has been wrongly decided. High Court in the territory of India if the High Court
certifies under article 134A— (a) that the case involves a substantial question of law of general importance; and
(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.

7|Page
 STATEMENTS OF FACTS

THE PARTIES.

KD & Firm is leading grocery firm in Indica, which is a populous, plural, democratic country. It
has been working in the FMCG sector for the last 60 years and has 75% market share in the
category. The firm is managed by Rajeev who is a management graduate from Oxford Business
School. KD &Co. is having its registered office in Vadodara and operates from Ahmedabad, KD
&Co. in May 2020 signs an agreement with the Government of Indica under Article 299 for
supply of 200000 Tons of Wheat flour and 300000 Liters of edible oil. The warehouses of KD
&Co. are located in different cities of Indica namely Kolkata, Gurugram, Coimbatore, and
Ahmedabad.

BACKGROUND.

China reports an outbreak of Covid-19 virus in December 2019 which is highly contagious and
till April 10000000 peoples are infected with this virus and it has claimed 500000 lives. A
lockdown was declared by Indican Prime Minister in March and extended it intermittently till
May. Rajeev as per the terms of agreement asks for earnest payment. The agreement between
Government and Company is one to one contract and not through bidding or tendering
process. Initial payment is made by the Government. Rajeev has ties to political honchos of the
country. Also, his brothers are married to the daughters of the Ministers of the Union
Government.

THE PROBLEM.

Amid the Covid-19 outbreak Central Government has given guidelines and instructions to State
for following lockdowns. Rajeev starts supplying the items at desired locations of Government
of Indica. 200 trucks carrying essential items from Ahmedabad are caught and seized under
relevant law for breaking the lockdown by Rajasthan Government, likewise Kolkata
government seized 200 trucks and these trucks carrying tons of wheat flour and edible oils
valuing Rs.200 Crores are left open in Jaipur and Kolkata respectively. Due to negligence of
Government Officials trucks are left unattended and being in open the supply is destroyed by
mob rioting and heavy rains.

8|Page
PROCEEDINGS BEFORE THE HIGH COURT.

Rajeev on behalf Company files a petition in Calcutta High Court and in Rajasthan High Court
for payment of compensation owing to tortious acts of State and violation of hisFundamental
right to do business.

PROCEEDINGS BEFORE THE HIGH COURT.

Rajeev on behalf Company files a petition in Calcutta High Court and in Rajasthan High Court
for payment of compensation for tortious acts of State and violation of his Fundamental right
to do business and breach of constitutional right of freedom of trade commerce and
intercourse and holding it to be a non-contractual bailment. Both High Courts. rejects the
petition and upholds the Government's stand that this was a sovereign function and it was not
a bailment of goods. It was also held thatthis kind of function does not qualify for non
contractual bailment.

APPEAL.

Aggrieved by the judgment of High Courts, Rajeev went in appeal to the Supreme Court which
combines the matter for joint hearing.

9|Page
 ISSUES FOR CONSIDERATION

ISSUE I: WHETHER THERE WAS A VIOLATION OF FUNDAMENTAL RIGHT OF FREEDOM OF TRADE

AND BUSINESS AND CONSTITUTIONAL RIGHT OF FREEDOM OF TRADE COMMERCE AND
INTERCOURSE OF KD&CO. ?

ISSUE II.: WHETHER THE PETITION IS MAINTAINABLE UNDER THE APPELLATE JURISDICTION OF THE
SUPREME COURT OF INDICA?

ISSUE III.: WHETHER THERE EXISTED A NON-CONTRACTUAL BAILMENT BETWEEN KD&CO. AND
RESPECTIVE STATE GOVERNMENT'S AND WHETHER THERE EXISTS ANY SOVEREIGN IMMUNITY
AVAILABLE TO THE RESPECTIVE STATES?

10 | P a g e
 SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THERE WAS A VIOLATION OF FUNDAMENTAL RIGHT OF

FREEDOM OF TRADE AND BUSINESS OF KD&CO. ?

It is humbly submitted before the Hon'ble Court that there was no violation of Fundamental
Right of Freedom of Trade and Business of KD &Co. KD & Co is a corporate body having
fundamental rights. But fundamental right is not absolute. Trucks have been seized for violation
of lockdown rules. The appellanthas violated the guidelines set up by respective State and held
liable for the same and not for carrying on Trade and Business. Hence, there is no violation of
fundamental right.

ISSUE II.: WHETHER THE PETITION IS MAINTAINABLE UNDER THE APPELLATE

JURISDICTION OF THE SUPREME COURT OF INDICA?

It is humbly submitted before the Hon'ble court that the petition filed under Article 132 & 133
is not maintainable. It is humbly submitted before this Hon’ble Supreme Court that the petition
filed by the appellant is not maintainable as Leave cannot be granted when substantial justice
has been done and no circumstances of substantial question of law of general importance exist
for the case to be maintainable. Also in the present case, no substantial question of law is
involved and interference is based on pure question of fact which is entitled to be dismissed.
Further the appeal is a question of law and not question of fact. Also, the practice of Non-
interference in the decision of the lower courts is followed.

ISSUE III.: WHETHER THERE EXISTED A NON-CONTRACTUAL BAILMENT

BETWEEN KD&CO. AND RESPECTIVE STATE GOVERNMENT'S AND WHETHER
THERE EXISTS ANY SOVEREIGN IMMUNITY AVAILABLE TO THE RESPECTIVE
STATES?

It is humbly submitted before this Hon’ble court that there was no bailment of goods. Such kind
of function do not qualify for non-contractual bailment. Furthermore, there exists sovereign
immunity to the respective states.

11 | P a g e
 ARGUMENTS

ISSUE I: WHETHER THERE WAS A VIOLATION OF FUNDAMENTAL RIGHT OF

FREEDOM OF TRADE AND BUSINESS OF KD &Co. ?

It is humbly submitted that there was no Fundamental Right violation of KD & Co. to do
business. Article 19 of the Indian Constitution bestows the freedom of trade and commerce.
Although it is not available to companies due to its scope restricted to citizens, in different
pronouncements, it has been held that the rights of shareholders are not lost when they proceed
to form a company. The arguments under this issue are twofold: [1] That there exist fundamental
rights of the firms

[1.1] CORPORATE BODY IS A PERSON HAVING FUNDAMENTAL RIGHTS.

It is submitted that certain fundamental rights incorporated under the constitution are available
for the protection of any person including corporate bodies and not merely to citizens 18. This
rule is now broadened it’s horizon by the judgment in Bennett Coleman Co. v Union of India 19
where the court remarked that, "fundamental rights of shareholders as citizens are not lost when
they associate to form a company". In addition, if the petitioner is an incorporated company, the
petition shall not be dismissed at the threshold as held by the full-bench of Hon'ble Supreme
Court in Delhi Cloth and General Mills Ltd. v Union of India 20 As mentioned in the factual
matrix, KD & Co. is having a registered office in Coimbatore, this means that KD & Co. is a
registered company.

In the instant case, after Rajeev started supplying the items at desired locations of Govt. of
India, 200 trucks carrying essential items from Ahmedabad were caught and seized and
challenged under relevant law for breaking the lockdown by Rajasthan Government, 200 trucks
were seized by Kolkata Govt. which were carrying tons of wheat flour and edible oils. The value
of the items was Rs. 200 Crores.

[1.2] FUNDAMENTAL RIGHTS NOT ABSOLUTE

The State Government had adopted various measures in the interest of the general public for the
control of production, supply and distribution of, and trade and commerce in, essential
commodities.

12 | P a g e
Under Entry 33, List III,The State Legislature is competent to enact a law on the subject relating
to Regulation of trade and commerce in, and the production, and supply and distribution of
"foodstuffs". In exercise of concurrentjurisdiction under Entry 73, List II, of the Seventh
Schedule to the Constitution as amended by the Constitution (Third Amendment) Act, 1954,
The Essential

Commodities Act, 1955 was enacted by Parliament. The exercise of such concurrentjurisdiction
would not deprive the State Legislature of its jurisdiction thereunder. The executive power of
the State which is coextensive with the legislative power is subject to the limitation contained in
Article 162 which directs that in any matter with respect to which the legislature ofa State and
Parliament have power to make laws, the executive power of the State shall be subject to, and
limited by, the executive power expressly conferred by the Constitution or by any law made by
Parliament upon the Union of authorities thereof.

The State in exercise of its executive powers is charged with the duty and the responsibility of
carrying on the general administration of the State. So long as the State Government does not go
against the provisions of the constitution of any law, the width and amplitude of its executive
power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly
the Government can carry on the administrative directions or instructions, until the legislature
makes a law in that behalf. Otherwise the administration would come to a standstill.

The executive power of "search and seizure" is a necessary concomitant of a welfare State. It
tends to promote the well being of the nation. Many questions arising in the field of search and
seizure are factual in nature, involving varying degrees of difference among the infinitely
diverse facts. It is a limitless area where not only every factual variation presents a new
constitutional question, but it is a peculiar field in which the decisions of courts do not help in
clarifying the law. The decisions in the field are of little precedental value, because the more the
cases that are decided the more issues arise, through possible factual variation.
The Essential Commodities Act, 1955 is a "law" within the meaning of Article 302 of the
Constitution imposing reasonable restrictions on the right to carry on trade and commerce as
guaranteed by Article 19(1)(g) and Article 301 of the Constitution. The object of the Act is
toprovide, in the interest of the general public for the control, production, supply and
distribution of, and trade and commerce in, certain essential commodities.

The fundamental right to carry on trade or business guaranteed under Article 19(1)(g) or the
freedom of inter-State trade, commerce and intercourse under Article 301 of the Constitution,
has its own limitations. The liberty of an individual to do as he pleases is not absolute. It must
yield to the common good. Absolute or unrestricted individual rights do not and cannot exist
inany modern State. There is no protection of the rights themselves unless there is a measure of
control and regulation of the rights of each individual in the interests of all. Whenever such a
conflict comes before the Court, it is its duty to harmonise the exercise of the competing rights.
The Court must balance the individual’s rights of freedom of trade under Article 19(1)(g) and
the freedom of interState trade and commerce under Article 301 as against the national interest.
Such a limitation is inherent in the exercise of those rights.

13 | P a g e
 Under Article 19(1)(g) of the Constitution, a citizen has the right to carry on any occupation,
trade or business and the only restriction on this unfettered right is the authority of the State to
make a law imposing reasonable restrictions under clause (6). The expression "reasonable
restriction" signifies that the limitation imposed on a person in enjoyment of the right should not
be arbitrary or of an excessive nature, beyond what is required in the interests of the public.
Thetest of reasonableness, wherever prescribed, should be applied to each individual statute
impugned, and no abstract standard, or general pattern of reasonableness can be laid down as
applicable in all cases. The restriction which arbitrarily or excessively invades the right cannot
be said to contain the quality of reasonableness and unless it strikes a proper balancebetween the
freedom guaranteed in Article 19(1) (g) and the social control permitted by clause (6) of Article
19, it must be held to be wanting in that quality Article 301 imposes a limitation on all
legislative power in order to secure that trade, commerce and intercourse throughout the
territory of India shall be free. Although Article 301 guarantees that trade, commerce intercourse
throughout the country shall be free, the right to carry on inter-State trade and commerce may be
subject to reasonable restrictions in the interests of the general public.21

The word ’free’ in Article 301 does not mean freedom from laws or from regulations. Article
301 guarantees freedom of trade, commerce and intercourse throughout the country from any
State barriers. The whole object was to bring about the economic unity of the country under a
federal structure, so that the people may feel that they are members of one nation. One of the
means to achieve this object is to guarantee to every citizen in addition to the freedom of
movement and Bishambhar Dayal Chandra Mohan vs State Of Uttar Pradesh &Ors 1982 AIR
33, 1982 SCR (1)1137 residence throughout the country, which is achieved by Article 19(1)(d)
and (e) is the freedom of movement or passage of commodities from one part of the country to
another.

The word ’law’ in the context of Article 300A must mean an Act of Parliament or of a State
Legislature, a rule, or a statutory order, having the force of law, that is positive or State-made
law.

True it is, if the governmental action is arbitrary or there is no rational nexus to the object sought
to be achieved it is liable to be struck down as violative of Art.14 of the Constitution. The State
Government has adopted various measures in the interest of the general public for the control of
production, supply and distribution of, and trade and commerce in, essential commodities. To
obviate the spread of CORONAVIRUS, checks and balances to achieve the object is a
reasonable restriction within the meaning of Art. 19(6) of the Constitution.

[1.3] SEIZURE OF TRUCKS FOR VIOLATION OF LOCKDOWN RULES

Premising on the above submissions, The appellants humbly submit that when the goods were
seized by the govt. officials, by the order of seizure by respective governments.
Search and seizure is done in accordance with the provisions of Essential Commodities Act,
1955 as well as the Control Orders, namely, Motor Sprit and High Speed Diesel (Regulation of
Supply & Distribution & Prevention of Malpractices) Order, 1998. Under Section 3(j) of the
14 | P a g e
Essential Commodities Act, the seizure is required to be made by a person authorised. Clause 4
of the Control Order reads as follows:

15 | P a g e
“4.Power of Search and Seizure: (A) Any Gazetted Officer of the Central or State Government
or any Police Officer not below the rank of Deputy Superintendent of Police (DSP) duly
authorised, by general or special order by the Central Government or State Government as the
case may be or any Officer of the concerned Oil Company not below the rank of Sales Officer
may, with a view to securing compliance with the provisions of this Order, or for the purpose of
satisfying himself that this order or any order made thereunder has been complied with-

(i) enter and search any place or premises being made use of or suspected to be made use
by a dealer, transporter, consumer or any other person who is an employee or agent of such
dealer/ transporter / consumer or any other person, with respect to which there is reason to
believe that the provisions of this order have been / are being or are about to be contravened.

(ii) stop and search any person or vehicle or receptacle used or intended to be used for the
movement of the product.

(ii) inspect any book of account or other documents or any stock of the product used or
suspected to be used in the business of the dealer, transporter, consumer or any other person
suspected to be employee or agent of the dealer, transporter or consumer.

(iv) take samples of the product and / or seize of the stocks of the product which the officer has
reason to believe has been or is being about to be used in contravention of this order and
hereafter take or authorise the taking of all measures necessary for securing the production of
stocks / items so seized before the collector having jurisdiction under the provision of the
Essential Commodities Act, 1955 (10 of 1955) and for their safe custody pending such
production.22

In the present case, the search and seizure, from the very inception, has been done by an
authority who is authorised to seize the vehicle and, therefore, all consequential actions taken
based on such illegal search and seizure would also be lawful and thereby the confiscation order
cannot be questioned. It is not disputed that the trucks were caught and seized and challenged
under relevant law for breaking the lockdown regulations.
In exercise of the powers, conferred under Section 10(2)(1) of the Disaster Management Act
2005, Order dated 14th April, 2020 that the lockdown measures stipulated in the Consolidated
Guidelines of Ministry of Home Affairs (MHA) for containment of COVID-19 epidemic in the
country, to contain the spread of COVID-19 in the country:
16 | P a g e
Companies dealing with the transportation of essential goods may follow the below principles in
line with the Government orders is each respective State:

The vehicle shall have a poster/sticker/notice pasted stating that the goods being transported fall
within the purview of essential goods in that particular state [if the same is intrastate] and shall
have the names of other States mentioned as well should the transport of goods be provided
between other States [if the same is interstate]. Some of the wordings that can be used include
“ESSENTIAL MEDICAL SUPPLIES”, “EXEMPTED GOODS AS PER ORDERS”, “STAFF
FOR
ESSENTIAL SERVICES”, etc;
The driver and any other person accompanying the driver of the vehicle shall carry with them a
valid Government identity proof and a letter from the company, to be presented when required
by any authority;
The driver shall keep a letter from the company stating that the company is engaged in the
business of manufacturing, selling, procuring and transporting exempted essential goods as per
the respective State Government’s order;
The vehicle shall be equipped with all other documents necessary in the normal course of
transport of goods, whether interstate or intrastate as may be necessary; and
Vehicles shall be required to also maintain hygiene, sanitation and strictly follow social
distancing norms while on transit.
Furthermore, the Companies/establishments providing such essential services shall track the
latest regulations to check if they are required to obtain a ‘curfew pass’, in their respective
States.

The trucks were seized for non compliance of the lockdown regulations. Non-compliance of the
lockdown rules attracts sanction. Thereby, appellant's fundamental right to trade and commerce
is not violated. The appellanton the belief that he has political connections, the very fact that his
brothers are married to daughter of Ministers of Union government, he may do away with any
charges of violation of the lockdown guidelines framed by the state government. On the
contrary, the appellant has violated the lockdown regulations and hence liable for such violation.

Union of India v. Era Educational Trst. AIR 2000 SC 15731

Nain Singh Bhakuni v. Union of India, AIR 1998 SC 622

Asst. Controller, Central Excise v. N T Co., AIR 1972 SC 2563

17 | P a g e
ISSUE II.: WHETHER THE PETITION IS MAINTAINABLE UNDER THE
APPELLATE JURISDICTION OF THE SUPREME COURT OF INDICA?

It is humbly submitted before this Hon’ble Supreme Court that the petition filed by the appellant
is not maintainable as Leave cannot be granted when substantial justice has been done and no
circumstances of substantial question of law of general importance exist for the case to be
maintainable. Also in the present case, no substantial question of law of general importance is
involved and interference is based on pure question of fact which is entitled to be dismissed.

[2.1] NO CIRCUMSTANCES OF SUBSTANTIAL QUESTION OF LAW OF GENERAL

IMPORTANCE EXISTS IN THIS CASE AND SUBSTANTIAL JUSTICE HAS ALREADY
BEEN DONE

It is contended by the respondent that there is no interference, substantial and grave injustice
will result and the case has features of sufficient gravity to warrant review of the decision
appealed against on merits. Furthermore, if in the opinion of the High Court the said question
needs to be decided by the Supreme Court, only then the court would exercise its overriding
powers under Article 1333. It is also contended that Special leave will not be granted when there
is no failure of justice or when substantial justice is done 4. Substantial Justice has already been
done by the HC itself and the appellant is unable topresent the flaws in the present case. This
shows that the law is wellsettled in this regard and the present case is not a question of law. In
addition to this no appeal shall, lie to the Supreme Court from the judgment, decree or final
order of one Judge of a High Court unless Parliament by law otherwise provides.
It is humbly stated that in absence of irregularity of procedure of violation of principle of natural
justice , it is contended that in line of the case of Raghunath G. Pauhale v ChaganLalSundarji&
Co.5 this Hon’ble court is not bound to go into the merits and even if it were to do so, and
declare the law or point out the error, still it may not interfere if the justice of the case on facts
doesn’t require specific interference or if it feels that the relief could be molded in a different
fashion. Hence, it is most respectfully humbly that the case should be dismissed because the
principles of natural justice are not being harmed in any way.

[2.2] THAT THE APPEAL MAY BE A QUESTION OF FACT AND NOT A QUESTION
OF LAW AND HENCE IS NOT MAINTAINABLE

It is most humbly contended by that the appeal does not involve any substantial question of law,
on the contrary, it involves pure question of fact and hence, is not maintainable. Questions of
fact cannot be permitted to be raised unless there is material evidence which has been
disregarded by the HC or the finding arrived at by the court is perverse.6 The SC cannot
consistently with its practice of entertaining question of fact, convert itself into a court of facts.7

18 | P a g e
Generally no interference will be madein SC on finding of fact.8 Even in cases where
conclusions are arrived at without proper discussion, yet if it involves finding in fact, no
interference of SC is called for.9Furthermore, If the conclusion is groundedupon some evidence
on which a Judgement could be arrived at, no question of law as such arise. 10 It is now well-
settled that the superior courts while exercising their jurisdiction under Article 132 and Article
133 may not exercise the same inappropriate cases. It is submitted that the Hon’ble High Court
is a court of law itself and the High Court, after a lot of analysis only, would have passed such
an appeal. Here in the present case, the appellant is appealing before this Hon’ble Court without
any stable grounds for the appeal. There is no strong substantial question of law involved in this
case which might allow this appeal to be heard. It is thereforemost respectfully submitted that
this appeal should not be maintainable in thishon’ble court of justice.

Even if we assume the involvement of a “question of law”, still there is no “substantial question
of law” in the present case. It has to be borne in mind that the right of appeal is neither natural
nor an inherent right attached to the litigation. 11Right to appeal being a substantive statutory
right, it bound to be regulated in accordance with law in force at the relevant time. In Sir
Chunilal Mehta & Sons Ltd. v Century Spinning & Mfg. Co. Ltd 12., the Court had laid down the
following tests to determine whether a substantial question of law is involved. The tests are: (1)
whether directly or indirectly it affects substantial rights of the parties, or (2) the question is of
general-public importance, or (3) whether it is an open question in the sense that there is no
scope for interference by the High Court with a finding recorded when such finding could be
treated to be a finding of fact.

In additional to the above-mentioned, If the question is settled by the Apex Court or the general
principles to be applied in determining the question which are well settled and where there is a
mere question of applying those well settled principles, the question would not be a substantial
question of law.
In the case of Santosh Hazari v PurushottamTiwari (2001) 3 SCC 179 (SC)13, it was held that :
To be “substantial”, a question of law must be debatable,not previously settled by the law of the
land or any bindingprecedent, and must have a material bearing on the decision ofthe case and/or
the rights of the parties before it, if answeredeither way.

It must also be noted that Re-appreciation of evidence and substitution of the findings by the High
Court is impermissible.14It is humbly submitted before the Hon’ble Supreme Court thatthere is
no substantial question of law is involved in the present case, this petition of the appealant is not
maintainable in the court.
Raghunath G. Pauhale v ChaganLalSundarji& Co.(1999) 8 SCC 1 (SC)
Union of India v Rajeshwari& Co. (1986) 161 ITR 60 (SC)
Gurbakhsh Singh v State of Punjab (1955) AIR 320 (SC)
CIT v MaganlalChaganlal (P) Ltd. (1997) 11 SCC 557 (SC)

19 | P a g e
 [2.3] NON-INTERFERENCE IN THE DECISION OF THE LOWER COURTS
It is submitted that, if it appears prima facie that the order in question cannot be justified by any
judicial standard, the ends of justice and the need to maintain judicial discipline require the
Supreme Court to intervene15; If the SC has taken all the relevant factors into consideration and
there has been no misapplication of the principles of law, the Supreme Court does not interfere
with the conclusion arrived at by the High Court.
Normally, in exercising its jurisdiction under Article 132 and 133, the Supreme Court does not
interfere with the findings of the fact concurrently arrived at by the HC unless there is a clear
error of law or unless some important piece of evidence has been omitted from consideration.
AA question is not allowed to be raised for the first time in an appeal before the Supreme
Court16. It would refuse a question to be developed before it when it had been not urged before
the High Court.17
The Supreme Court in the present case need not interfere in the decision of the High Court of
Rajasthan as well as the decision of the High Court of Calcutta. The practice of non-interference
in the decisions of lower courts is followed by the Supreme Court when it is of the view that all
relevant factors have been taken into consideration as in the instantaneous matter. Even once
admitted petition might be rejected if the grounds to approach the Supreme Court are infirm.
Hence, in the instant case, Hon’ble Supreme Court must reject the petition.
[2.3]NON-INTERFERENCE IN THE DECISION OF THE LOWER
COURTS
It is submitted that, if it appears prima facie that the order in question cannot be justified by any
judicial standard, the ends of justice and the need to maintain judicial discipline require the
Supreme Court to intervene15; If the SC has taken all the relevant factors into consideration and
there has been no misapplication of the principles of law, the Supreme Court does not interfere
with the conclusion arrived at by the High Court.
Normally, in exercising its jurisdiction under Article 132 and 133, the Supreme Court does not
interfere with the findings of the fact concurrently arrived at by the HC unless there is a clear
error of law or unless some important piece of evidence has been omitted from consideration.
AA question is not allowed to be raised for the first time in an appeal before the Supreme
Court16. It would refuse a question to be developed before it when it had been not urged before
the High Court.17
The Supreme Court in the present case need not interfere in the decision of the High Court of
Rajasthan as well as the decision of the High Court of Calcutta. The practice of non-interference
in the decisions of lower courts is followed by the Supreme Court when it is of the view that all
relevant factors have been taken into consideration as in the instantaneous matter. Even once
admitted petition might be rejected if the grounds to approach the Supreme Court are infirm.
Hence, in the instant case, Hon’ble Supreme Court must reject the petition.

Ram Gulam vs state of UP AIR 1950 All 206

20 | P a g e
Sankaravaidivelu Pillai v. Secretary of State for India, Council, (1905) 15 MLJ 32

21 | P a g e
ISSUE III.: WHETHER THERE EXISTED A NON-CONTRACTUAL BAILMENT BETWEEN
KD&CO. AND RESPECTIVE STATE GOVERNMENT'S AND WHETHER THERE EXISTS
ANY SOVEREIGN IMMUNITY AVAILABLE TO THE RESPECTIVE STATES?
[3]BAILMENT DOES NOT EXIST BETWEEN KD & FIRM AND THE RESPECTIVE
STATE GOVERNMENT AND THERE EXISTS SOVEREIGN IMMUNITY TO THE
RESPECTIVE STATES

There can not be any bailment without a contract.23 In this case, the goods in the trucks were not
made over to the Police under any contract. So, the government never acquired the position of
the bailee and is not liable to indemnify the plaintiffs.

The rule embodied in the maxim “Respondent Superior” is a known exception. Accordingly,
master is not liable for the acts of the servants which he performed in discharge of duty imposed

Even if we consider the situation to of a bailor and bailee, negligence cannot be taken as a plea
for recovery of damages by the appealant. Whatever damages have been caused to the appealant
was due to heavy rainfall and mob rioting. In the case of Sankaravaidivelu Pillai v. Secretary of
State for India, Council,24 A Caligula structure was constructed by the Government in 1892 and
due to abnormal floods in 1895, the land of a Ryot was inundated.It was held that it was no part
of the Government’s liability to have anticipated such heavy rains. Furthermore, the act of mob
rioting is not something which is foreseeable.Therefore, the Government is not liable to
compensate for the goods destroyed by mob rioting and heavy rains.

Further, Government is the political organizations through which the sovereign will of the State
finds expression, and through which the State functions.
In the case of Ram Ghulam v. UP 25, a person accused of theft, ornaments seized by police. After
case, the accused asks for ornaments, it was found that ornaments lost. Filed against on police as
a bailee. But, J Seth held that “as there was no contract made between the accused and the
police.
So, police not liable as a bailee”.
In the case of State Of Madhya Pradesh vs Singhai Kapoor chand Of Seoni 26 it was held that the
State Government could not be held liable for torts committed by their servants in exercise of
powers and duties imposed upon them by law. The Division Bench relied on State of Tripura v.
Province of East Bengal27. In that case, proceedings had been started under Section 251 of the C.
P. Land Revenue Act for contravention of the rules framed thereunder. It was held that the Deputy

22 | P a g e
Commissioner exercising powers conferred upon him by the Act did not act as a servant of the
State.

In Kasturilal v. State of U. P.28, the question of liability of the State arose in these circumstances.
The plaintiff was arrested by police officers on suspicion of possessing stolen property and on
search of his person a large quantity of gold was seized under the provisions of the Code of
Criminal Procedure. Ultimately, he was released but the gold seized from him was not returned
as the Head Constable in charge of the Malkhana had absconded with valuable property
including the gold seized from the plaintiff. In the suit instituted against the State for return of
the gold or, in the alternative its value, the evidence disclosed that the police, officers had not
followed the provisions of the Police Regulations in taking care of the gold seized from the
plaintiff. It was held (i) that the manner in which the gold seized from the plaintiff had been
dealt with at the Malkhana showed a gross negligence on the part of the police officers and that
the loss suffered by the plaintiff was due to the negligence of police officers of the State, and (ii)
that the act of negligence was committed by the police officers while dealing with the property
of the plaintiff 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 in the last analysis they are powers which can be properly
characterised as sovereign powers; and so the act which gave rise to the present claim for
damages had been committed by the employee of the State during the course of its employment;
but the employment in question being of the category which can claim the special characteristic
of sovereign power, the claim could not be sustained.

In P & O Navigation Company v Secretary of State for India 29 This was the first case in which
the Sovereign immunity of the state was debated. There was a piece of a funnel made up of iron
which was being carried by some workers on a Government’s steamer, which in its way hit
plaintiff’s horse-driven carriage. Plaintiff sued the Govt. for damages due to negligence on the
part of the servants employed by the govt. It was held that “The Government cannot be held
liable when the injuries are caused while carrying out sovereign functions but is liable when the
acts of the servants are non-sovereign functions”.

In the case of Secretary of State v. Hari Bhanji,30the Madras High Court held that State
immunity was confined to acts of State. In the P & O Case, the ruling did not go beyond acts of
State, while giving illustrations of situations where the immunity was available. It was defined
that Acts of State, are acts done in the exercise of sovereign power, where the act complained of
is professedly done under the sanction of municipal law, and in the exercise of powers conferred
by law.
The mere fact that it is done by the sovereign powers and is not an act which could possibly be
done by a private individual does not oust the jurisdiction of the civil court. The Madras
judgment in Hari Bhanji holds that the Government may not be liable for acts connected with
public safety, even though they are not acts of State.

23 | P a g e
In the landmark case of State of M.P. v. Chironji Lal, 31A new question came before the court
relating to the payment of damages for the loss caused by the lathi-charge of the police in a
situation where it was unauthorized and unwarranted by law. It was alleged that the police
resorted to lathi-charge willfully and without any reasonable cause and thus damaged the
plaintiff’s property. The claim was rejected on the ground that the function of the state to
regulate processions and to maintain law and order is a sovereign function.

Further, this doctrine of immunity, for acts done in the exercise of sovereign functions, was
applied by the Calcutta High Court in Nobin Chander Dey v. Secretary of State of India 32, The
plaintiff, In this case, contended that the Government had made a contract with him for the issue
of a license for the sale of ganja and had committed a breach of the contract. The High Court
held that upon the evidence, no breach of contract had been proved. Secondly, even if there was
a contract, the act had been done in exercise of sovereign power and was thus not actionable.

Here, considering the Covid pandemic, duty has been discharged by the police officers in
exercise of public health and safety even though they are not the acts of state, government
cannot be held liable. In the instant case, this was a sovereign function and it was not a bailment
of goods.
Wherefore, this kind of function also does not qualify for non-contractual bailment.

Ram Gulam vs state of UP AIR 1950 All 206

Sankaravaidivelu Pillai v. Secretary of State for India, Council, (1905) 15 MLJ 32

24 | P a g e
 PRAYER

Wherefore, In light of the facts of the case, issues raised, arguments advanced and authorities cited,
may this Hon'ble Court be pleased to adjudge and declare that;

i. That there has been no violation of fundamental right to trade and business, and constitutional right
of freedom of trade, commerce and intercourse by the State.

ii. That a non-contractual bailment does not existed between the KD & Co. and respective states.

iii. That defense of "sovereign immunity" exists in the instant case.

All of which is respectfully submitted Counsel for the Respondents.

25 | P a g e