Before

THE HON’BLE ALLAHABAD HIGH COURT

CIVIL REVISON NOS. 92 OF 1948

RamGhulam and Anr. PLAINTIFFS

v.

The Government of United

Provinces DEFENDANTS

BEFORE SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND

THE COMPANION JUSTICES OF

THE HON’BLE ALLAHABAD HIGH COURT

Memorial for the Plaintiff.

1
 TABLE OF CONTENTS

Sr.
INDEX Page no.
No.

1 INDEX OF AUTHORITIES

2 LIST OF ABBREVIATIONS

3 STATEMENT OF JURISDICTION

4 STATEMENT OF FACTS

5 STATEMENT OF ISSUES

6 SUMMARY OF ARGUMENTS

7 ARGUMENTS ADVANCED

8 PRAYER

2
 INDEX OF AUTHORITIES

STATUTES

1. The Constitution of India.

2. The Indian Contract Act, 1872.
3. The Code of Civil Procedure, 1908.

CASES

1. Peninsular and Oriental Steam Navigation Co. v. Secretary of State

2. Secretary of State v. Hari Bhanji
3. A. M. Ross v. Secretary of State
4. Shivbhajan Durgaprasad v. Secretary of State

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 TABLE OF ABBREVIATIONS

AIR All India Refrencer

CrPC Code Of Criminal Procedure

I.e. That is

Pg Page

Hon’ble Honourable

SC Supreme Court

SCC Supreme Court Cases

Sec Section

U/s Under section

STATEMENT OF JURISDICTION

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The Appellants have filed the present Civil Revision before the Hon’ble
High Court, Allahabad under Section 115 of the Code of Civil Procedure
which reads as follows:

115. Revision—The High Court may call for the record of any case which
has been decided by any Court subordinate to such High Court and in
which no appeal lies thereto, and if such subordinate Court appears—
(a)to have exercised a jurisdiction not vested in it by law, or
(b)to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with mate-
rial irregularity, the High Court may make such order in the case as it
thinks fit:

[Provided that the High Court shall not, under this section, vary or re-
verse any order made, or any order deciding an issue, in the course of a
suit or other proceeding, except where the order, if it had been made in
favour of the party applying for revision would have finally disposed of the
suit or other proceedings.]
[(2) The High Court shall not, under this section, vary or reverse any de-
cree or order against which an appeal lies either to the High Court or to
any Court subordinate thereto.
[(3) A revision shall not operate as a stay of suit or other proceeding be-
fore the Court except where such suit or other proceeding is stayed by the
High Court.]

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 STATEMENT OF FACTS

a. The present Civil Revision to this Hon’ble High Court is preferred by

the Mr. Ramghulam (The Appellant) against the Government of
the United Provinces (The Defendants)
b. The suit giving rise to this application in revision was instituted by the
plaintiffs (applicants) against the Government of United Provinces for
the recovery of certain ornaments, and in the alternative for the recov-
ery of Rs. 599.4/- of their price.
c. The said ornaments were stolen from the house of the Plaintiffs. A for-
mal complaint was lodged by the Plaintiff to the Police.
d. In exercise of powers conferred by the Code of Criminal Procedure,
the Police conducted a search in another house, where they found the
said ornaments and according to due procedure, seized the said orna-
ments.
e. They were accordingly kept in the Collectorate Malkhana, to be pro-
duced as as exhibits at the trial of those, who were prosecuted in con-
nection with the theft. However, they were again stolen, this time from
the Malkhana and are now untraceable.
f. The plaintiffs applied to the Magistrate for an order for the restoration
of the said ornaments to them, where they were unsuccessful. Then
the Plaintiffs instituted the present suit, which was dismissed on the
finding that the Government was not liable to compensate the
plaintiffs.

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g. Through various sources, the Plaintiffs were informed that the orna-
ments are not available at the Malkhana, on account of the negligence
of the defendant's servants.
h. Despite repeated requests of the Plaintiffs for return of their property,
the said ornaments were not handed back to the rightful owners i.e the
Plaintiffs.
i. It is an admitted fact during the trial that the ornaments were stolen
from the Malkhana and are untraceable.
j. Hence, the Plaintiffs pressed for alternative relief only, for the recov-
ery of their price on the ground that the ornaments were lost on ac-
count of the negligence of the Government servants, and the Govern-
ment was liable for their tortuous conduct. Plea was overruled and the
suit dismissed.
k. Hence, this Revision application.

STATEMENT OF ISSUES

1. Whether the act of Government Servant’s amounts to tortious act of

negligence?

2. Whether the Government of United Provinces is liable to indemnify

the Plaintiffs?

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 SUMMARY OF ARGUMENTS

1. Whether the act of Government Servant’s amounts to tortious act

of negligence?

The Courts of law derive their existence, jurisdiction and authority from
the State itself; and have, therefore, no jurisdiction over it and no authority
to pronounce any binding adjudication against it, except in so far as the
State has consented to submit to their jurisdiction and to abide by their de-
8
cisions. This consent may be found in the Constitution of the State itself,
or in the laws enacted by it, or even in the executive orders issued by it.
Government is the political organisation through which the sovereign will
of the State finds expression, and through which the State functions. A suit
by a citizen against the Government is thus, in substance, a suit against the
State by its own citizen and is regulated by the same principles as it would
be in a person v. person suit.
There are several cases in which the liability of the Secretary of State to be
sued for tortious acts of Government servants has been judicially consid-
ered, and the question that has arisen in this case is not res integra.
The actions of the Police are in capacity of the servants of the Govern-
ment, hence the Government is automatically liable for any tortious act of
its servants.

2. Whether the Government of United Provinces is liable to indemnify

the Plaintiffs for the negligent actions of the Servants of State?

The common jurisprudential principle of ‘Respondent Superior’ is applica-

ble here. If any another person would have been guilty of such negligence,
then he would have had to indemnify the party at loss and that is a settled
legal principle. However, just because this is an entity of State as Defen-
dant, it is claiming to be absolved of all liabilities. If this is allowed, it
would set dangerous precedent, making it virtually impossible to hold ac-

9
countable the activities and actions of Government servants as any wrong-
doing could be disguised under the garb of “sovereign function”.
This would give rise to rampant corruption of morals and institutions and
result in humongous injustice upon the Republic who entrust the State for
their protection.

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 ARGUMENTS ADVANCED

ISSUE 1.

Whether the act of Government Servant’s amounts to tortious act of

negligence?

According to political theory, sovereignty is an essential attribute of a

State, which means that it is the supreme and ultimate authority within its
territory, and that there is no other authority, to which its citizens may look
for redress, if they have any grievance against it. The Courts of law derive
their existence, jurisdiction and authority from the State itself; and have,
therefore, no jurisdiction over it and no authority to pronounce any binding
adjudication against it, except in so far as the State has consented to submit
to their jurisdiction and to abide by their decisions. This consent may be
found in the Constitution of the State itself, or in the laws enacted by it, or
even in the executive orders issued by it.

So far as the English law is concerned, this juristic principle, based on the
theory of sovereignty, has found expression in such rules as 'The King can
do no wrong,' and 'No action lies against the Grown’. English law contains
no general principle of non-discrimination. This deficiency ought to be
rectified: non-discrimination is a key aspect of the principle of equality be-
fore the law. However, the same principle has found no place in the demo-
cratic conscience of the world. The Fourteenth Amendment of the US
Constitution guarantees equality before law to all persons.

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Amdt 14.1: No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal protection
of the laws.

No person, authority or chair is above the law. Every civilised State has,
hence, to some extent, recognised the moral claim of a citizen to redress
against itself and has, therefore, consented to submit to the jurisdiction of
the Courts to that extent.

Therefore, it is humbly submitted to the Hon’ble Court that the Plaintiffs

have total faith in this Hon’ble Court of law that just because the Defen-
dant in this matter is the State, that would not warrant for any exceptions
which could result in forfeiture of justice.

Government is the political organisation through which the sovereign will

of the State finds expression, and through which the State functions. A suit
by a citizen against the Government is thus, in substance, a suit against the
State by its own citizen and is regulated by the same principles as it would
be in a person v. person suit. Section 176 of the Constitution Act, 1935
states that: The result of reading these two sections together is that only
such suits are maintainable against the Provincial Governments in respect
of affairs of the Provinces, as could be maintained against the East India
Company before the Government of India Act, 1858

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(1)The Federation may sue, or be sued by the name of the federation of In-
dia and a Provincial Government may sue or be sued by the name of
the Province, and, without prejudice to the subsequent provisions of
this chapter, may, subject to any provisions which may he made by the
Act of the Federal or a Provincial Legislature enacted by virtue of
powers conferred on that Legislature by this Act, sue or be sued in re-
lation to their respective affairs in the like cases as the Secretary of
State in Council might have sued or been sued if this Act had not been
passed.
(2)The Provincial Governments have thus been made liable to be sued, in
respect of affairs of the Provinces, to the same extent to which the Sec-
retary of State was liable to be sued before the Constitution Act, 1935.
This liability of the Secretary of the State is to be found in Section 32,
Constitution Act of 1919, according to which:
(3)"Every person shall have the same remedies against the Secretary of
State in Council as he might have had against the East India Company
if the Government of India Act, 1858, and this Act had not been passed.

The result of reading these two sections together is that only such suits are
maintainable against the Provincial Governments in respect of affairs of
the Provinces, as could be maintained against the East India Company be-
fore the Government of India Act, 1858 that is, before the direct govern-
ment of this country was assumed by the British Crown. In order to deter-
mine, therefore, whether the present suit is maintainable against the Pro-
vincial Government it is necessary to determine whether a suit for com-

13
pensation was maintainable against the East India Company for the tor-
tious acts of its servants.

There are several cases in which the liability of the Secretary of State to be
sued for tortious acts of Government servants has been judicially consid-
ered, and the question that has arisen in this case is not res integra.

The East India Company began as a trading corporation. It acquired certain

sovereign lights when it obtained the Diwani from the Mogul Emperor
Shah Alam in 1765. By reason of the Charter Act, 1833, it held the Gov-
ernment of India in trust for the British Crown. Upto the year 1858 it held
a dud character, namely, the character of a trading corporation and the
character of a body possessed of certain sovereign rights, although it was
not a fully sovereign body. It is necessary to make reference to this dual
character of the East India Company, because a distinction has been made
in decided cases between the responsibility of the Company or of the Sec-
retary of state for the tortious acts committed in pursuance of commercial
undertakings and non-commercial undertakings.

In Peninsular and Oriental Steam Navigation Co. v. Secretary of State1,

whee damages were claimed against the Secretary of State for injury sus-
tained by a horse of the plaintiff’s due to the negligence of certain Govern-
ment servants employed in the Dockyard at Kidderpore. Sir Barnes Pea-
cock C. J. who delivered the judgment of the Court, pointed out the dual
character of the East India Company and the distinction between a mercan-
tile undertaking carried on by the Company whether for its own private or
1 6 Bom. H. C. App. 1.
14
for public benefit and an activity carried on in the exercise of governmen-
tal functions, and after referring to Section 65, Government of India Act,
1858, according to which the liability of the Secretary of State was co-ex-
tensive with the liability of the East India Company, held that the Secre-
tary of State was liable for damages occasioned by Government servants
while they were engaged in a commercial undertaking which could be car-
ried on by a private individual not possessed of any sovereign powers. The
learned Chief Justice further observed:

"But where an act is done, or a contract is entered into, in the exercise of

powers usually called sovereign powers, by which we mean powers which
cannot be lawfully exercised except by a sovereign, or private individual
delegated by a sovereign to exercise them, no action will lie.”

In Secretary of State v. Hari Bhanji2, it was held that:

“The jurisdiction of Court was ousted in respect of acts of State and not
with respect to acts done under colour of Municipal law, that the Peninsu-
lar Company's case, does not decide anything beyond this that no charac-
ter of sovereignty attached to the commercial operations of the Company
and that it was liable to be sued in respect of wrongs done in the course of
such operations, that it does not decide that no suit could be maintained in
respect of wrongs done in the operation of sovereign rights, that every act
performed in the exercise of sovereign rights is not an act of State and that
acts of State are only such acts which do not pretend to justify themselves
by any canon of Municipal law.”
2 5 Mad 273
15
Therefore, from the authorities cited above it is abundantly clear that the
Government is liable for the actions of its servants since there is a clear ex-
istence of a master-servant relationship.

ISSUE 2.

Whether the Government of United Provinces is liable to indemnify

the Plaintiffs for the negligent actions of the Servants of State?

Prima facie, the present case sets out as follows.

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a. The Plaintiffs were robbed and their precious Jewellery was stolen.
b. The Plaintiffs approached the Police and lodged a complaint.
c. The Police, duty bound by the law and in capacity as the servants of
the State began investigating and found the said stolen jewellery.
d. When the Jewellery was found, it should have been handed over to
its rightful owners, the Plaintiffs, however it was kept in the
Malkhana as evidence for Prosecution of the accused.
e. The Jewellery was stolen.

It is most respectfully submitted that after all is said and done the Plaintiffs
stand to incur a financial as well as judicial loss. The common jurispruden-
tial principle of ‘Respondent Superior’ is applicable here. The case is
straight as an arrow. No, turns, no confusing twists whatsoever. However,
the State is looking to unburden themselves of the liability of the negligent
actions of their servants, pushing the Plaintiffs into depths of injustice by
entangling them into a barrage of technical knowhow, being perfectly
aware that the Plaintiffs are poor, uneducated citizens who would be un-
able to combat this aggressive technical bombarding. The Hon’ble Court
must take cognisance of this action by the State as this Court of Law is the
last viable remedy available to the Plaintiffs.

It was pointed out in A. M. Ross v. Secretary of State3, in a very well-con-

sidered judgment of Wallis J:

“That the Peninsular Company's case, only established that the East India
Company or that the Secretary of State did not enjoy immunity in respect
3 37 Mad 55
17
of torts committed in transactions that could be carried on by private indi-
viduals and that whether the immunity extended in respect of torts commit-
ted in the performance of transactions in the exercise of sovereign author-
ity was not finally decided in that case.”

In another case of Shivbhajan Durgaprasad v. Secretary of State4 it was

held that
“That the Secretary of State could be held liable only if the liability was
incurred on account of the Government of India.”
The facts of Shivabhajan's case were that certain bundles of hay were at-
tached by the Chief Constable of Mahim, because they were believed to be
stolen property; the plaintiff, from whose possession the bundles of hay
were attached, was prosecuted, and acquitted, but did not get back all the
bundles attached because they were lost. He sued the Secretary of State for
compensation for loss due to the negligence of the Chief Constable. It was
held on these facts that in order to be maintainable against the Secretary of
State the suit must be one in which the East India Company could have
been held liable, subject to this further condition that the liability must be
one incurred on account of the Government of India. It was pointed out
that the executive Government of Bombay was carried on by the Governor
of Bombay, and that the Chief Constable not having been appointed by the
Governor of Bombay, the liability could not be held to have been incurred
on account of the Government of India.
The above judgment is in two parts;
a. There was liability on part of the Chief Constable

4 28 Bom 314
18
b. The liability was not enforceable on the Governor of Bombay since
he was no appointed by the Governor himself.
However this second part of the principle cannot be applied to this present
case since the Investigating officer was appointed by the Government of
United Provinces.

Therefore it is crystal clear that the Plaintiffs would suffer heinous miscar-
riage of Justice if they are not indemnified against their rightful property,
their Jewellery.

PRAYER

In the light of the facts presented, issues raised, arguments advanced and
authorities cited, may this Hon’ble Court be pleased to:

• Order the Government of the United Provinces to indemnify the Plain-

tiffs for their stolen property i.e the said jewellery amounting to Rs.
599.4/- (Rupees five Hundred and Ninety Nine, Four Paise only)

19
And pass any such order, direction, or relief that it may deem fit I the best
interests of Justice, Fairness, Equity and Good Conscience and for this the
Plaintiffs as in duty, shall humbly pray.

All of which is respectfully submitted.

Sd/-
Counsel for the Plaintiff.

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