SSGM09

SSG NATIONAL MOOT COURT COMPETITION, 2020

BEFORE THE HON’BLE SUPREME COURT OF UNNOVA

IN THE MATTER OF

STATE OF HAORAH … PETITIONER

Vs.

STATE OF ALAASAM AND ORS. …RESPONDENTS

WRITTEN MEMORIAL SUBMISSION ON BEHALF OF THE

RESPONDENTS

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 TABLE OF CONTENTS

I. INDEX OF AUTHORITIES……………………………………….03
II. STATEMENT OF JURISDICTION……………………………….06
III. STATEMENT OF FACTS…………………………………………07
IV. STATEMENT OF ISSUES...............................................................09
V. SUMMARY OF ARGUMENTS…………………………………..10
VI. ARGUMENTS ADVANCED……………………………………..12
VII. PRAYER…………………………………………………………...29

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 INDEX OF AUTHORITIES

BOOKS REFERRED:
1. Constitutional Law of India H.M. Seervai, 4th edition
2. First edition of Outlines of Criminal Law in 1902. Jerome Hall, General Principles of
Criminal Law. 2ndedn, Bobbs-Merril, New York, 1960, p 222, fn24.
3. Merriam webster, 1828
4. Glanville Williams, Textbook of Criminal Law, 2ndedn, Stevens & Sons, 1983, p30
5. Indian Constitution law, M.P. Jain, 6th edition
6. Black Law Dictionary
7. Nandi’s Civil Ready Referencer, A.K. Nandi, 7th edition 2010 Vol I
8. Sarkar, Code of Civil Procedure, Sudipto Sarkar ,V.R. Manohar, 11th edition 2009
Vol-I
9. DD BASU COMMENTARY ON THE CONSTITUTION OF INDIA, 8th edition
2009
10. The constitution of India, J.N. Pandey
11. V.N Shukla, Constitution of India, (514-519), (EBC, Lucknow, 12th edition, 2013)

CASES REFERRED:

1. State of Bihar V. Union of India 1970 AIR 1446, 1970 SCR (2) 522
2. State of Karnataka V. Union of India &Anr AIR 1978 SC 68
3. State of Rajasthan v. Union of India 1977 AIR 1361,
4. Vikash kumarsingh v. State of Bihar & Amp; Ors
5. Mahadeo Prasad v state of West Bengal AIR 954 SC 724
6. R. Balakrishna Pillai v state of Kerala (2003) 9 SCC 700
7. Kasturi Lal Rallia Ram V. State of Uttarpradesh AIR 1965 SC 1039
8. Union of India V. Saveetha Sharma AIR 1979 J&K 6.
9. Iswar Bhai C. Patel @ Bachu Bhai Patel vs. Harihar Behera&Anr (1999) 3 SCC 45
10. Shri Niharedu Majumdar v. State of Tripura AIR 2005 NOC 290
11. Kasturi versus Iyyamperumal AIR 2005 SC 2813
12. Jemine v. Commr of Wakfs, A 1983 NOC 126(C)
13. U P v. Atiga, A 1941 FC 16
14. Kishan v. Har, 33 A 272, 276 PC

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15. Sarvindeer Singh v. Dalip Singh, 1996 (6) Scale 59: 1996 (7) Supreme 210
16. Lal Pvt. Ltd. V. Murali AIR 2002 SC 1061
17. W.W. Joshi And Ors. vs State Of Bombay And Ors. AIR 1959 Bom 363
18. S.R. Bommai v. Union of India AIR ,1994 SC 1918
19. R. Venkata Raman V. Director General of police, Crl.O.P.Nos.8690 and 12060 of 2017
20. The State of Tamil Nadu vs Elephant G. Rajendran, CIVIL APPEAL NOS. 3918-3919
OF 2019
21. State of Seraikella v. Union of India AIR 1951 SC 253
22. Gopal Singh v. Swaran Singh &ors (2019) 2 SCC 177].

STATUTES REFERRED:

1. Legal rights act, 1935

2. Constitution of India, 1950
3. Civil Procedure Code, 1908
4. States Reorganisation Act, 1956

WEBSITES REFERRED:

1. www.manupatra.com
2. www.scconline.com
3. www.indiankanoon.com
4. www.livelaw.com
5. http://www.legalservicesindia.com/article/580/Vicarious-Liability-of-State-in-
Sovereign-Functions.html
6. https://www.criminaldefenselawyer.com/crime-penalties/federal/Vandalism.html

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LIST OF ABBREVIATIONS

& AND
AIR ALL INDIA REPORT
Anr. ANOTHER
Ors. Others
Art. Article
Sec. Section
Edn. Edition
Hon’ble Honourable
SCC Supreme Court Cases
SCR Supreme Court Reporter
V. Versus
UOI Union of India
Govt. Government
SC Supreme Court
CPC Civil Procedure code
IPC Indian Penal Code
WP Writ Petition
U/S Under Section
Vol. Volume
J. Justice
i.e. Id est
Etc Et cetra
Ltd. Limited
Pg. No. Page Number
FC Federal court
Ibid Ibidem
Para Paragraph

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 STATEMENT OF JURSIDICTION
The petitioner has approached the hon’ble supreme court under art.1311 of the Constitution

for the violation of the legal right. The respondent maintains that no violation of right has

taken place. Therefore, this hon’ble court need not to entertain the said jurisdiction.

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Article 131.Original jurisdiction of the Supreme Court-

Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have
original jurisdiction in any dispute-  

(a) between the Government of India and one or more States; or

(b) between the Government of India and any State or States on one side and one or more other States on the
other; or

(c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on
which the existence or extent of a legal right depends:

Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant,
engagements, and or other similar instrument which, having been entered into or executed before the
commencement of this Constitution, continues in operation after such commencement, or which provides that
the said jurisdiction shall not extend to such a dispute.

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 STATEMENT OF FACTS
Unnova- a democratic country is known for its diversity of culture and religion since time
immemorial. But over years, Unnova has witnessed dramatic increase in violence and attack.
One such unpleasant incident is which occurred in the year 2019 which have raised questions
regarding effectiveness of the provisions of Acts/ Laws of the Country.

Haorah and Alaasam are two of the 33 states of Unnova. Pangoro in Alaasam has been
demanding separation from the state of Alaasam in the last 2 decades. Pangoro has been
fighting its little war with its state to detach from its land but in vain.

Haorah and Alaasam share their boundary with each other and also a Hindu deity temple
standing still on their frame with 60% of its structure in State of Haorah and 40% in State of
Alaasam. Two states had been sharing cordial relation for an extensive time post –
Independence.

In the late 1980s, dispute started arising between the States regarding the temple at their
border line. They entered into a peace pact between them on the issue of the temple. The pact
was agreed upon and signed by both the states on April 23, 1988. The pact was ratified every
2 years until one day (09-04-2019), the temple was vandalised.

The incident took place at midnight around 2: 30 a.m. where the Alaasamese broke into the
temple and took away all the articles of the temple. The incident came into light in the eyes of
Haorah authority maintaining the temple at around 10 a.m. in the morning. The eye witness
i.e., the care takers of the temple informed that they had seen the dacoits escaping from the
north wall of the temple which was in the territory of state of Haorah. After visiting the site,
the temple authorities, the temple authorities sent a notice to the State of Alaasam and sought
notice within 5 days from when the notice was sent. On receiving no formal reply, state of
Haorah filed a case on 27-04-2019 against the state government of Alaasam at the supreme
court of Unnova- the Highest Court of Appeal.

In its petition it was stated that, Alaasamese had been breaking the rules laid down in the
Pact again and again. It had been ignoring their negative acts of maintenance of peace
between them. But after temple vandalism it had lost its patience and approached the Apex
court of resolving the issue arising between 2 states. It is demanding compensation for
physically harming the people. The Haorah govt. is also asking the Alaasam govt. to restore
the articles of the temple.

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The government of Alaasam in its defence said that it had no knowledge of the incident and
had never gone against the peace pact signed between them.

The Hon`ble court got mystified on hearing from Alaasam govt. that the state of Haorah had
planned and plotted the whole scene which had occurred at the temple so that the
maintenance, power and authority over the temple shifts in the hands of Haorah.

The SC on hearing both the sides set up an Inquiry Commission composed of former CJI of
the supreme court of Unnova, Attorney General of Unnova, Secretary General of Haorah
Temple Maintenance authority, Secretary General of Alaasam Temple Maintenance
Authority, to look into the matter and report within 6 months.

In the intervening time, the State govt. of Alaasam had going through the process of
separating Pangoro from it. Finally, Pangoro won its battle. Mr. Arceus, who is the leader of
the state, was made as the chief minister of the state of Pangoro and Sinnoh is its capital.

The Apex Court on receiving the Inquiry Report from the commission called the two states to
appear before it on December 1,2019 to hear the intrinsic details of the finding report. The
Report stated that the Pangoro people on their own and with no such direction from the
Alaasam govt. broke into the temple from the side of the state of Haorah.

The outer premises wall adjoining the border of state of Haorah was demolished before the
incident which provided a cunning entrance to the dacoits. The articles had been found with
one of the officials, Mr. Tauros of the Haorah Temple Authority at his residence. It was
discovered by tapping the phone call that Mr. Arceus and Mr. Tauros had been planning this
attack on the temple for long time.

The case is pending before the Hon`ble Supreme Court for its arguments and contentions.

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 STATEMENT OF ISSUES

ISSUE I:

WHETHER THE PLEA IS MAINTAINABLE?

ISSUE II:

WHETHER THE STATE OF ALAASAM IS LIABLE FOR THE ACT OF

VANDALIZING THE TEMPLE?

ISSUE III:

WHETHER THE STATE OF PANGORO BE JOINED AS AN ESSENTIAL PARTY

TO THE PETITION?

ISSUE IV:

WHETHER THE STATE OF PANGORO BE JOINED AS AN ESSENTIAL PARTY

TO THE PETITION?

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 SUMMARY OF ARGUMENTS

ISSUE I:

WHETHER THE PLEA IS MAINTAINABLE?

It is humbly submitted before this hon`ble Supreme Court that the petition filed by the State
of Haorah is not maintainable under art. 131 as original jurisdiction can be invoked only
when there is dispute between two states on the matters involving question of existence or
extent of legal right. It is also not maintainable on the ground that the peace pact was signed
by both the parties and ratified every two years. The State of Haorah violated the proviso 4
mentioned in the Peace Pact. Sec 80 of CPC, 1908 provides that no suit can be instituted
against the government until the expiration of two months after a notice in writing has been
given whereas the petitioner demanded a reply within a five day from when the notice was
sent. Hence it is contended that the said petition is not maintainable under this hon’ble
Supreme Court of Unnova.

ISSUE II:

WHETHER THE STATE OF ALAASAM IS LIABLE FOR THE ACT OF

VANDALIZING THE TEMPLE?

It is humbly submitted before this hon’ble court that the State of Alaasam cannot be made
liable for the act of vandalism, as the elements of the vandalism was not fulfilled as there
were no mens rea and actus rea. The whole plan was plotted and wisely executed by the state
of Haorah. The state of Haorah in the view of taking over the full authority over the temple
maintenance had planned, plotted and executed the plan wisely. The state of Haorah should
be held vicariously liable for the act committed by the official of the temple authority.

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ISSUE III:

WHETHER THE STATE OF PANGORO BE JOINED AS AN ESSENTIAL PARTY

TO THE PETITION?

It is humbly submitted before this Hon`ble Court that the state of Pangoro became the
independent successor state after it got separated from state of Alaasam. The dispute in the
present case being the maintenance of the temple and allegations of negative acts of violation
of peace pact falls only within the scope of state of Haorah and state of Alaasam and the
Court can very well decide the case and pass an effective order only by impleading state of
Alaasam as defendants. Since it is possible to pass an effective degree even in the absence of
state of Pangoro, it cannot be construed as an essential party to the petition.

ISSUE IV:

WHETHER THE STATE OF PANGORO BE JOINED AS AN ESSENTIAL PARTY

TO THE PETITION?

It is humbly submitted before this Hon`ble court that State of Haorah does not have relief
against the State of Alaasam as the temple articles were well within the state of Haorah and
Since the allegations against the State of Alaasam on the violation for peace pact cannot be
proved, the full maintenance cannot be given to the state of Haorah..An individual who does
not prevent something which he/she could have prevented, is taken to have done that thing.
State of Haorah who had already failed to discharge its already existing duty cannot be given
with full maintenance of the temple.

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 ARGUMENTS ADVANCED
I. WHETHER THE PLEA IS MAINTAINABLE?

It is humbly submitted before the Hon`ble SC of Unnova that the petition filed by the State of
Haorah is not maintainable as original jurisdiction can be invoked only when there is dispute
between two states on the matters involving question of existence or extent of legal right.

1.1 WHAT IS ORIGINAL JURISDICTION CONFERRED BY SUPREME

COURT?

ART. 131. Original jurisdiction of the Supreme Court Subject to the provisions of this
Constitution, the Supreme Court shall, to the exclusion of any other court, have original
jurisdiction in any dispute

(a) Between the Government of India and one or more States; or

(b) Between the Government of India and any State or States on one side and one or more
other States on the other; or

(c) Between two or more States, if and in so far as the dispute involves any question (whether
of law or fact) on which the existence or extent of a legal right depends:

Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty,
agreement, covenant, engagements, and or other similar instrument which, having been
entered into or executed before the commencement of this Constitution, continues in
operation after such commencement, or which provides that the said jurisdiction shall not
extend to such a dispute.

Original jurisdiction of the Supreme Court gives the nature of disputes that can be brought
before the Supreme Court at the first instance and not to any lower court.

The Supreme Court held that the dispute which can be raised before the Supreme Court in its
exclusive original jurisdiction under Art 131:

1. Must be dispute between the Union and the states or between the states
2. Must raise questions on the extent of legal right
3. Any suit by private citizen against centre or state cannot be entertained.2
2
M.P. Jain, Indian Constitution law, 6th edition

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All the above three case clearly shows the federal nature of the disputes and also being
exclusive only to the Supreme Court.

1.2 PARTIES TO THE DISPUTE.

There must be an inter-state dispute, i.e. the dispute must be between the units of the Union
or between the union and any one or more of the states, or between the Union and state or
states on one side and one or more states on the other side. The Supreme Court in its original
jurisdiction cannot entertain a suit brought by private individuals.

In the case of State of Bihar V. Union of India3, Hindustan steel was not considered to be a
state under Article 131. The state of Bihar filed a suit in the Supreme Court under Article 131
against the Union of India as the owner of railways and the Hindustan Steel Ltd.., a
government company, claiming damages for a short supply of iron and steel ordered by the
state in connection with the Gandak Project. It was held that suit did not lie under Article 131
because its phraseology excludes the idea of the private citizen, a firm or a corporation.4

The main argument was the Hindustan steels can be regarded as the state under Article 12 of
Indian constitution, but the court held that the definition of the state under Article 12 of
Indian Constitution could not be applied under Article 131 and therefore Hindustan Steel
cannot be regarded as the state.

Similarly, in our case, the Report states that “Pangoro people on their own and with no such
direction from the Alaasam government broke into the temple from the side of the State of
Haorah.”5 This statement states that there was no direction from the Alaasam government to
break down into the temple. It is clear that the dispute is between private persons and state of
Alaasam is not involved in this dispute. Hence, the plea is not maintainable.

1.3 QUESTION OF LEGAL RIGHT MUST BE INVOLVED.

3
State of Bihar V. Union of India &Anr 1970 SCR (2) 522
4
M.P.Jain(2010) 6th edition ,Indian Constitutional law: Lexis Nexis, pg no. 225
5
Point no.9 of facts sheet pg no. 3

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Legal right refers to rights according to law. A legal right is a claim recognizable and
enforceable at law.6The term ‘legal Right’, used in section 204 7, obviously means a right
recognised by law and capable of being enforced by the power of a state, but not necessarily
in a court of law. It is a right of an authority recognised and protected by a rule of law, a
violation of which would be a legal wrong to his interest and respect for which is a legal duty,
even though no action may actually lie. The only ingredients seem to be a legal recognition
and a legal protection”.

The eminent jurist Shri H.M. Seervai in his book8 stated that the word “if and in so far as the
dispute involves any question (whether of law or fact) on which the existence of legal right
depends” are meant to emphasize the fact that the dispute must be one relating to legal right,
and not a dispute on a political plane not based on a legal right.”9

The legal right may be that of the plaintiff or of the defendant. In other words, what is
necessary is that the existence or extent of the legal right must be in issue in the dispute
between the parties.

The requirement necessary for attracting the applicability of Art. 131 is that the dispute must
be one involving any question "on which the existence or extent of a legal right" depends
irrespective of whether the legal right is claimed by one party or the other and it is not
necessary that some legal right of the plaintiff should be infringed before a suit can be
brought.10

Goswami J. and Fazl Ali J. upheld the objection stating that a dispute must affect the legal
rights of the state and not those of the state government11

In the case of State of Rajasthan v. Union of India12, it was said that the Supreme court has
got the power to give any kind of relief if it is necessary to enforce the legal right of any state
on dispute if such legal right has been established by the government of the state.

The expression ‘legal rights’ according to this article has been interpreted to include the
following questions.

6
Re estate of FOLWELL,68 N.J. Eq.728, 731(N.J. 1905)
7
Legal rights act, 1935
8
Constitutional Law of India H.M. Seervai, 4th edition
9
State of Karnataka V. Union of India &Anr AIR 1978 SC 68
10
Ibid 9
11
State of Rajasthan v. Union of India 1977 AIR 1361
12
1977 AIR 1361

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 (i) The validity of a law of the union or of a State.13
(ii) Any claim or dispute between the Union and a State as to their competence, under
Sch. VII, to legislate over the subject.14
(iii) A question raised by a State as to the right of the Union to dissolve the State
assembly and the contrary right of the State to maintain the federal basis of the
Constitution against violation by the Union or an unconstitutional exercise by the
Union of the power under Art.356.
(iv) A question as to the power of the Union Government to order inquiry under the
Commissions of Inquiry Act, into allegations of corruption, misuse of
governmental powers, etc... against a minister or ministers or other officers or
agents of the State.
(v) A question as to the governmental powers vested in the Government of the State
and its ministers vis-à-vis those of the union government and its ministers.15

It is to be noted that none of the above can be linked to our present case, and there is no
question on existence of legal rights involved in this case.

Hence, it is humbly submitted before the court that the claim raised by the state of Haorah
does not involve any legal right. Hence, the plea filed by the petitioner is not maintainable
under Art 131 as there is no legal right involved in the issue.

1.4 PRIVATE PARTIES MUST NOT BE INVOLVED.

No private party, be it a citizen, or a firm or a corporation, can be impleaded as a party in a

suit under Article 131, along with a state either jointly or in the alternative.

In case of State of Bihar v. Union of India 16, the State government had filed a case against the
Central government on the behalf of the Railways and a company which was treated as a state
under Art 12 of the Indian Constitution. But the court said that the case could not be brought
under the jurisdiction under the Article 131 as the meaning of the word ‘state’ did not include
any private citizen, a company or a government department even if it had filed a complaint
along with any state government.

13
State of Seraikella v. Union of India AIR 1951 SC 253
14
Ibid 9
15
DD BASU COMMENTARY ON THE CONSTITUTION OF INDIA, 8th edition 2009, Pg 5461
16
1970 AIR 1446, 1970 SCR (2) 522

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The jurisdiction of the Supreme Court under Article 131 is narrow in three ways –by
limitations on nature of suits, by restriction on the types of parties to the suits and by
constitutionally specified exclusion

By looking into the above three sub points we can come to a conclusion that the plea filed by
the petitioner is not maintainable.

1.5 VIOLATION OF PEACE PACT

It is humbly submitted before this hon`ble court that the proviso clause clearly states any
treaty, agreement, covenant, engagements, and or other similar instrument which, having
been entered into or executed before the commencement of this Constitution, continues in
operation after such commencement, or which provides that the said jurisdiction shall not
entertained by this hon`ble court. Peace pact was agreed upon and signed by both states on
April 23, 1988 i.e., after the commencement of the constitution. Thus, the peace pact entered
into by the both states is legally binding. But the proviso clause 4 of Peace treaty 17 states that
“It is on the approval and consent of both the party states that any grievance caused should be
addressed bilaterally. No state should approach the Apex without prior consent and approval
of the other state”. Therefore, the petition filed by the petitioner is not maintainable on the
ground that the peace pact was signed by both the parties and ratified every two years. The
state of Haorah violated the proviso 4 mentioned in the peace pact.

Sec. 80 of the Civil Procedure Code, 1908 18, provides that no suit can be instituted against the
government until the expiration of two months after a notice in writing has been given.

In the case of Gopal Singh v. Swaran Singh &ors19.the Appellate Court dismissed the suit
because no notice as required under Section 80 of the Code of Civil Procedure was given
before filing the suit and no application was filed to dispense with the requirement of giving
notice under Section 80(2).The Two-Judge Bench of the Supreme Court has reiterated the
settled law that a suit being against State and its authorities without notice under Section 80
of CPC is not maintainable.

17
Annexure 1 Moot proposition
18
“Section 80 of the Code provides that no suit shall be instituted against the Government or against a Public
Officer in respect of any act purporting to be done by such public officer in his official capacity until the
expiration of 2 months next after notice in writing has been delivered”.
19
Gopal Singh v. Swaran Singh &ors (2019) 2 SCC 177].

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But in this case where the petitioner demanded a reply within a five day from when the notice
was sent. Hence it is contended that the said petition is not maintainable under this hon’ble
Supreme Court of Unnova.

Therefore, it is humbly submitted before the hon`ble Supreme Court that the petition filed by
the state of Haorah is not maintainable under art 131.

II. WHETHER THE STATE OF ALAASAM IS LIABLE FOR THE ACT OF

VANDALIZING THE TEMPLE?

Vandalism has been defined in Black law dictionary as “wilful or ignorant destruction of
private property, especially artistic, architectural, or literary treasurers as well as the actions
or attitudes of one who is maliciously or ignorantly destroys or disfigures public or private
property20.

Vandalism, like every other crime, is made up of different parts, known as elements. Such
elements which constitute to the act of vandalism is that,

a. Physical damage; where the damage is often permanent

b. Owned by someone else; the property which is being damaged must been owned by
someone else,
c. Intentionally; The act of vandalizing is that the party should have intention.

The fundamental principle of criminal liability is that there must be a wrongful act– actus
rea21, combined with a wrongful intention- means rea. This principle embodied in the maxim,
‘actus non facit reum mens sit rea’, meaning ‘an act does not make one guilty unless the
mind is also legally blameworthy. Similarly, in the present case, it is very much noticeable
that the state of Alaasam did not have the mental intention i.e., the mens rea, as well as the
‘actus rea’, where no act is per se criminal; it becomes criminal only when the actor does it
with requisite guilty mind. Where the state of Alaasam had no knowledge about the temple
vandalism and had never gone against the peace pact which has entered between the two
states and has been ratified every two consecutive years22.

20
Vikash kumar singh v. State of Bihar & Amp; Ors
21
The expression ‘actus rea’ has apparently been coined by Prof Kenny in the first edition of Outlines of
Criminal Law in 1902. Jerome Hall, General Pinciples of Criminal Law. 2ndedn, Bobbs-Merril, New York, 1960,
p 222, fn24.
22
Para 6 of the moot proposition.

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 2.1 WHETHER THE ELEMENTS OF VANDALISIM ARE FULFILED?

Firstly, there must be a physical damage done to a public property. To constitute the crime of
vandalism there must be a, wilful or malicious destruction or defacement of public or private
property23. As stated, the temple wall of the state of Haroah was demolished much before the
incident took place which gave a cunning entrance to the dacoits. This clearly tell us that the
outer premises wall adjoining the border of the state of Haorah was not demolished on the
night of vandalism, rather it was demolished before the incident took place. And by the
inquiry report it was found out that the temple article which was lost was found with one of
the officials, of Haorah temple maintenance authority at his residence. By this it is evident
that the state of Alaasam had no knowledge about the act of vandalism and the whole plot
was construed by the state of Haorah and there was no physical damage done to the temple.

Secondly, the property must be owned by someone else, wherein in this instant plea the
property is jointly shared by both the states. Where the temple standing still on that border
with 60% in the state of Haorah and 40% in the state of Alaasam. So, by that this is not any
property owned by someone else. Rather the Hindu deity temple is owned by both of the
states.

Thirdly, no external conduct, howsoever serious in its consequences, is generally punished

unless the prohibited consequences is produced by some wrongful intent, fault, or mens rea24.
The state of Alaasam had no wrongful intention to vandalise the temple and to take away all
the valuable articles from the temple. The mere act of commission or deed of omission i.e.,
bringing a prohibited consequence, is not enough to constitute a crime. These generally
require, in addition, some element of wrongful intent or other fault25. In the following case
where the state of Alaasam has omitted to the probable consequences but it never had any
wrongful intention to vandalize the temple or to steal away the temple articles. It was the plot
executed by the state of Haorah by claiming a false accusation on the state of Alaasam.

Therefore, it is humbly submitted before this Hon’ble court that the State of Alaasam had no
knowledge about the vandalism and never had any wrongful intention to attack on the temple
property and to loot away all the articles of the temple. The state of Alaasam have always

23
Merriam webster, 1828
24
Mahadeo Prasad v state of West Bengal AIR 954 SC 724; R. Balakrishna Pillai v state of Kerala (2003) 9 SCC
700
25
Glanville Willams, Textbook of Criminal Law, 2ndedn, Stevens & Sons, 1983, p30

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obeyed to the peace pact which have been signed by both the governors and have never went
against the peace pact.

2.2 WHETHER THE ALLEGED ACT OF VANDALISM OCCURRED?

It is humbly submitted before this hon’ble court that, as contended by the state of Alaasam in
6th 7th
the and para of the moot proposition, the state of Alaasam did not have any knowledge
of the temple vandalism and had never gone against the peace pact and also stated that
government of Haorah had planned and plotted the whole scenario which had occurred at the
temple so that the maintenance, power, and authority over the temple shifts solely in the
hands of Haroah.

The few incidents which occurred on the midnight of 09.04.2019 is to be deeply analysed and
looked into carefully, we can come to a conclusion that the State of Haorah is behind the
whole act of Vandalism. Firstly the 4th point of the moot proposition states that the alleged act
of incident occurred around 2.30 in the midnight. It is also stated that the eyewitness i.e. the
caretakers of the temple informed that they had seen the dacoits (in total 7) escaping from the
north wall of the temple which was in the territory of Haorah. But even when they had seen
dacoits escaping, it was stated by the State of Haorah that the incident came to light in the
eyes of the Haorah Authority maintaining the temple only around 10 in morning.

This lapse of time needs to be carefully looked into because when they claim that the
eyewitness informed about the dacoits escaping from the temple, an immediate action ought
to be taken by the appropriate authority or should have been informed to the joint patrolling
officials. But in this present case this has not been done and only in the morning they claim
the incident came into light. This lapse is time is the crucial key factor which holds the entire
case.

The intrinsic details of the Inquiry report from the commission, only states that the Pangoro
people on their own with no such direction from Alaasam Government broke into the temple,
but it does not state that those people vandalised the temple and took away the articles and
even the eye witness stated that they had only seen them escaping but they had not seen them
vandalizing the temple or rather taking away the temple articles.

So, it is significant from the fact that the people who entered into the temple did not take
away the articles and Haorah temple maintenance authority used the time between 2.30 a.m.
to 10 a.m. to hatch a plan and to plot the whole act of vandalism there by to gain the full

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COUNSEL ON BEHALF OF RESPONDENTS
maintenance of the temple by accusing the State of Alaasam. It is pertinent to note that the
first person to enter into the temple after the alleged act of vandalism occurred was Mr.
Tauros and the details of the report states that the articles are found in the residence of Mr.
Tauros. By examining the two situation we can come into the conclusion that the official of
the Haorah temple maintenance authority has plotted the whole scenario between the time
gap and looted away the articles on the morning of 10.04.2019 and placed it in his residence.

Thus, it is humbly submitted before this hon’ble court that, the state of Haorah in the view of
taking over the full authority over the temple maintenance had planned, plotted and executed
the plan wisely. So, that the blame falls on the state of Alaasam and hence they will take over
the temple as a whole.

2.3 WHETHER THE STATE OF HAORAH CAN BE VICARIOUSLY HELD

LIABLE?

In Britain the maxim “King can do no wrong “operates. One of the results of this maxim is
that king is not bound by a Statute unless he is expressing named, or unless he is bound by
necessary implication, or unless the statute, being for the public good, it would be absurd to
exclude the king from its purview.26 But purview of this legal maxim took precedence by the
Crown Proceedings act, 1947.

So, now the present scenario is that the state can be held vicariously liable for the acts done
by its servants while doing the non-sovereign function.

While interpreting the sovereign and non-sovereign functions the SC in the case of Kasturi
Lal Rallia Ram V. State of Uttarpradesh27held that

“The theory of sovereign power which was propounded in Kasturi Lal’s case as yield to new
theories and is no longer available in the welfare state. It merely pointed out that functions of
the government in a welfare state had manifold, all of which cannot be set to be the activities
relating to exercise of sovereign powers. The function of the state not only relate to the
defence of the country or the administration of justice, but they extend to many other spheres
as, for example education, commercial, social, economic, political and even martial. These
activities cannot be said to be related to sovereign power.”

26
Indian Constitutional Law, M.P. Jain, 6th edition, 2010, pg- 2179
27
Kasturi Lal Rallia Ram V. State of Uttarpradesh AIR 1965 SC 1039

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In the non-sovereign function, the principle of vicarious liability operates between the
government and its servants while acting within the scope of their employment. As the
‘sovereign’ area is shrinking and ‘non-sovereign’ area expanding through judicial activism, it
means that the government is increasingly becoming liable to pay damages if any of its
employees commits a tortious act. To distinguish between Sovereign and Non-Sovereign
functions, the court adopts a simple test:

Is the function such which can be performed by an ordinary person?28

While applying this principle in the present case, looting the temple articles can be done by
any ordinary person and does not need any sovereign authority to commit an offence.
Therefore, the state of Haorah should be held vicariously liable for the act committed by the
official of the temple authority. Even by the intrinsic reports it is to be noted that the Mr.
Tauros had been planning on this attack for a long period of time and therefore the state of
Haorah should be held liable.

Hence, it is humbly submitted before this hon’ble court that the State of Alaasam cannot be
liable for the act of vandalism, as the whole plan was plotted and wisely executed by the state
of Haorah. And hence the state of Haorah should be held liable for the false accusation so that
the maintenance, power and authority over the Temple shifts solely in the hands of Haorah.

III. WHETHER THE STATE OF PANGORO BE JOINED AS AN

ESSENTIAL PARTY TO THE PETITION?

The state of Haorah and Alaasam are two of the 33 States of Unnova. Pangoro in Alaasam
had been demanding separation from the State of Alaasam for the last 2 decades 29. Eventually
Pangoro won the Battle and got separated from the state of Alaasam thereby becoming one of
the successor states of Alaasam. This present case in hand revolves around the issue of
vandalization of the temple which was jointly maintained by the state of Haorah and
Alaasam. It is humbly submitted before this Hon`ble Court that the state of Pangoro became
the independent successor state after it got separated from state of Alaasam. The Present issue
dealing with whether the state of Pangoro should be added as an essential party to the petition

28
Union of India V. Saveetha Sharma AIR 1979 J&K 6.
29
Para 1, Moot proposition

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can be addressed by examining who are the necessary and proper parties to the petitions and
who may be added as the defendants to the suit.

3.1 WHO MAY BE JOINED AS DEFENDANTS IN A SUIT?

An attempt has been made by the legislators, and in order to provide the defendants with
equal footing, a provision has been provided for in Order 1, Rule 3 of Code of Civil
Procedure, 1908 which reads as:

“3.  Who may be joined as defendants?

All persons may be joined in one suit as defendants where—

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of
acts or transactions is alleged to exist against such persons, whether jointly, severally or in
the alternative; and

(b) if separate suits were brought against such persons, any common question of law or fact
would arise.”30

This was further clarified and explained by the Hon`ble Supreme Court in 1999 in the
important case of Iswar Bhai C. Patel @ Bachu Bhai Patel vs. Harihar Behera&Anr31where
the Supreme Court observed that: “This Rule requires all persons to be joined as defendants
in a suit against whom any right to relief exists provided that such right is based on the same
act or transaction or series of acts or transactions against those persons whether jointly,
severally or in the alternative. The additional factor is that if separate suits were brought
against such persons, common questions of law or fact would arise. The purpose of the Rule
is to avoid multiplicity of suits.

Whereas it is contended before this Hon`ble Court that when the alleged act of vandalization
of temple occurred at the part of the state which is now separated and stand as the state of
Pangoro was well within the control of state of Alaasam. So, it is submitted that if at all there
exists any right to relief to the state of Haorah it can be only against the state of Alaasam and
not against state of Pangoro and moreover even the separate suit cannot be brought against
the state of Pangoro as it is in no way connected with the state of Haorah , its peace pact with
the state of Alaasam and the maintenance over the temple after it got separated. So, it is

30
Order 1, Rule 3 of Code of Civil Procedure, 1908
31
Iswar Bhai C. Patel @ Bachu Bhai Patel vs. Harihar Behera&Anr, (1999) 3 SCC 45

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pertinent to note that it was held in the case of Shri Niharedu Majumdar v. State of
Tripura32that persons against whom no relief is claimed are not necessary party, shall not be
arrayed as defendants in the case.

3.2 WHETHER STATE OF PANGORO CAN BE CONSTRUTED AS

NECESSARY OR PROPER PARTY TO THIS SUIT?

In order to examine whether the state of Pangoro comes within the ambit of either of
necessary or proper party to the suit, the essential distinction between necessary and proper
parties to the suit must be identified. The primary meaning of the party is a litigant who has a
part to play in the proceedings.33 Necessary parties are parties whose presence is essential
and, in whose absence, no effective degree can at all be passed. 34 Necessary parties are those
whose presence is necessary for the proper constitution of a suit. 35 Similarly a proper party is
one whose presence is necessary for a complete and final decisions of questions involved in
the proceedings.36 However even in the absence of proper party the Court can decide on the
case and it is not mandatory to implead all the proper parties to the suit.

In the landmark case of Kasturi versus Iyyamperumal37, the two tests have been provided for
determining the question whether a particular party is a necessary party to the proceeding or
not

1. There must be right to some relief against such party in respect of the matter involved in
the proceeding in question; and

2. It should not be possible to pass an effective degree in the absence of such a party.

It is humbly submitted that as contended in the previous sub issue if at all there exists a right
to relief to the state of Haorah it can be only against state of Alaasam and not against Pangoro
thereby failing the test for determining necessary party laid down in the Kasturi case. The
dispute in the present case being the maintenance of the temple and allegations of negative
acts of violation of peace pact falls only within the scope of state of Haorah and state of
Alaasam and the Court can very well decide the case and pass an effective order only by
impleading state of Alaasam as defendants. Since it is possible to pass an effective degree

32
Shri Niharedu Majumdar v. State of Tripura, AIR 2005 NOC 290
33
Jemine v. Commr of Wakfs, A 1983 NOC 126(C)
34
U P v. Atiga, A 1941 FC 16
35
Kishan v. Har, 33 A 272, 276 PC
36
Sarvindeer Singh v. Dalip Singh, 1996 (6) Scale 59: 1996 (7) Supreme 210
37
Kasturi versus Iyyamperumal, AIR 2005 SC 2813

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even in the absence of state of Pangoro, it cannot be construed as an essential party to the
petition.

To further substantiate in the case of Lal Pvt. Ltd. V. Murali,38it was held that where the
impleadment of a person would change the complex of litigation and the presence of the
party is neither necessary for the decision of the question involved in the proceedings nor to
enable the court effectively and completely to adjudicate upon and settle the question
involved in the case such a person is neither a necessary nor a proper party.

3.3 WHETHER THE STATE OF PANGORO ACQUIRE THE LIABILITY AS

THE SUCCESSOR STATE IN ACCORDANCE WITH SECTION 88 OF STATE
REORGANIZATION ACT-1956?

Section 88 of the state reorganization act imposes liability upon the successor state for the
actionable wrong done by the existing state before the separation took place.

“88. Liability in respect of actionable wrong. Where, immediately before the appointed day,
an existing State is subject to any liability in respect of an actionable wrong other than
breach of contract, that liability shall--

(a) if there be only one successor State, be a liability of that State;

(b) if there be two or more successor States and the cause of action arose wholly within the
territories which as from that day are the territories of one of them, be a liability of that
successor State; and

(c) in any other case, be initially a liability of the principal successor State, but subject to
such financial adjustment as may be agreed upon between all the successor States
concerned, or in default of such agreement, as the Central Government may by order
direct.39”

According to Section 88(b) when an existing state is subjected to the liability of an actionable
wrong, the successor states on whose territories the cause of action arose will bear the
liability of the existing state. However, State of Alaasam does not have any such liability to
subject its successor state. But however, when the suit is dealing with fixing the liability of
existing state thereby eventually extending the liability to its successor state, The obligation

38
Lal Pvt. Ltd. V. Murali, AIR 2002 SC 1061
States Reorganisation Act, 1956, Act ID: 195637. Act Number: 37. Enactment Date: 1956-08-31. Act Year:
39

1956, Section 88.

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stands on the part of the successor state to contend how the state of Pangoro will not be liable
for the actionable wrong even though the liability is fixed on the state of Alaasam.

As contended earlier only section 88(b) is attracted to the present case. It states if two or more
successor states are present then the liability is on the state on whose territory cause of action
arose. So, applying this principle in the present case is bad in law as the fact sheet as well as
map is unclear and vague as to where the temple is situated after the Pangoro got separated
from the state of Alaasam. If at all the temple is situated in the principle successor state that is
state of Alaasam then Pangoro is not subjected to the liability. To further substantiate more
on this in the case of W.W. Joshi And Ors. vs State Of Bombay And Ors.40It was held that

“18. The successor States of the former State of Madhya Pradesh are more than one and they
are the New State of Madhya Pradesh and the State of Bombay. Out of these two successor
States under Section 2(m)(i) of the Act the new or the present State of Madhya Pradesh is
"the principal successor State" of the former State of Madhya Pradesh. To call in aid this
clause it must be shown that the cause of action arose in its entirety within the territories
which as from that day (1-11-56) formed part of the territories of one of the successor States,
i.e., the present State of Bombay.

21. In Miscellaneous Petition No. 470 of 1956, the consequences of the order for termination
of the service of the petitioner fell at Drug. Drug does not form part of the present State of
Bombay. This petition is therefore not maintainable against the State of Bombay.”

Since section 88(b) cannot be applied in this case as it is difficult to infer the territory in
which the cause of action arose the first part of the section 88(c) should be looked into which
states that “in any other case, be initially a liability of the principal successor State”. Since
state of Alaasam is the principle successor state only it can be subjected to the liability of
actionable wrong. Since Pangoro is not subjected to the liability it cannot be added as the
essential party to the petition.

IV. WHETHER THE STATE OF HAORAH BE GIVEN THE FULL RIGTHS

FOR THE MAINTENANCE OF THE TEMPLE?

It is humbly submitted before this Hon`ble court that the peace pact had been signed between
both the states on April 23, 1988 in order to resolve the dispute between them after keeping in
mind the peace of the country. It is agreed upon by the parties through the pact that based on

40
W.W. Joshi And Ors. vs State Of Bombay And Ors,AIR 1959 Bom 363

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the territorial division, the funds for maintenance will be shared between them. So basically,
as per the territorial division, 60% of the fund will be contributed by the State of Haorah
having 60 % of the territory and 40% will be contributed by the State of Alaasam for its 40%
territory41. This was a valid deal and hence the State of Alaasam initially agreed to it. But
what is now being prayed by the petitioner for the full maintenance of the temple is not
acceptable as the State of Haorah did not produce any valid evidence to prove that there had
been err on the part of state of Alaasam and to establish that State of Alaasam had been
regularly violating the peace pact. As contended in the moot proposition State of Alaasam did
not have knowledge about the act of vandalism that had occurred and Government of Haorah
had planned and plotted the whole scene which had occurred at the Temple so that the
maintenance, power and authority over the Temple shifts solely in the hands of Haorah.
Proving this contention, the report of enquiry commission also states that the stolen temple
articles were found in the residence of Mr. Tauros who is the Haorah temple maintenance
authority. This denotes huge flaw in their maintenance. In that case, giving entire
maintenance to them is like making a rat in charge of a cheese factory, ultimately leaving us
with an empty space.

In the case of S.R. Bommai v. Union of India 42, while dealing with various writ petitions, the
SC observed that,

“The very manifestoes and their programme of action were such to hurt the religious feelings
of the Muslim community. The demolition of the disputed structure was no ordinary event…
which dealt a serious blow to the communal harmony and peace in the country. It was
difficult in this situation for the minorities in the four states to have any faith in the neutrality
of the four governments. It was absolutely necessary to recreate a feeling of security among
them. They required to be assured of the safety and security of their person and property.
This was not possible with BJP government in power.”

Applying this logic to our case, we can understand that party causing mischief can never
protect and prevent mischief. So, State of Haorah who orchestrated this whole of
vandalization of temple cannot be given with the full authority over the maintenance of the
temple.

41
Annexure 1, Moot Proposition
42
S.R. Bommai v. Union of India AIR ,1994 SC 1918

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In the case of R. Venkata Raman V. Director General of police 43Idols worth several crores
of rupees under the custody of Sri Pasupatheeswarar Temple was swindled by the trustees in
collusion with the HR & CE authorities namely, the executive officers K. Kamaraj and A.
Ramachandran and head clerk K. Raja. They also created false records as if every Idol was
intact.

In a Similar case, The State Of Tamil Nadu vs Elephant G. Rajendran 44certain accused
police officers who by misusing their status as officers of Idol wing, recovered the idols from
one Arokyaraj and kept the same under their custody and wantedly failed to report and record
the recovery and subsequently sold the same and also certain higher officials were found to
shield the accused.

A common order passed in both the cases with such directions to prosecute the delinquent
officials and also disciplinary proceedings to be initiated against them. Present case is also
yet another case in this order and separate criminal proceedings should be initiated against
Mr. Tauros who is the Haorah temple maintenance authority.

4.1 WHETHER HON’BLE SUPREME COURT IS PRESCRIBED FOR THE

COMPLETE ADJUDICATION OF SUIT UNDER ARTICLE 131?

The Hon`ble SC in the case of State of Bihar vs Union of India &Anr45held that

“The other distinguishing feature is that the Court is not required to adjudicate upon the
disputes in exactly the same way as ordinary courts of law are normally called upon to do for
upholding the rights of the parties and enforcement of its orders and decisions. The words in
the article "if and in so far as the dispute involves any question (whether of law or fact) on
which the existence or extent of a legal right depends" are words of limitation on the exercise
of that jurisdiction. These words indicate that the disputes should be in respect of legal rights
and not disputes of a political character. Moreover, this Court is only concerned to give its
decision on questions of law or of fact on which the existence or extent of a legal right
claimed depends. Once the Court comes to its conclusion on the cases presented by any
disputants and gives its adjudication on the facts or the points of law raised, the function of
this Court under Art. 131 is over. Art. 131 does not prescribe that a suit must be filed in the
Supreme Court for the complete adjudication of the dispute envisaged therein or the passing
of a decree capable of execution in the ordinary way as decrees of other courts are”
43
R. Venkata Raman V. Director General of police, Crl.O.P.Nos.8690 and 12060 of 2017
44
The State of Tamil Nadu vs Elephant G. Rajendran, CIVIL APPEAL NOS. 3918-3919 OF 2019
45
State of Bihar vs Union of India &Anr, 1970 AIR 1446

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Applying the principle laid down in the above case the State of Haorah do not have the
jurisdiction and cannot claim for the complete maintenance of the temple before this Hon`ble
court and such claim is not maintainable under art.131 of the constitution.

So it is humbly submitted before this Hon`ble court that State of Haorah does not have relief
against state of Alaasam as the temple articles were well within the state of Haorah and
allegations against state of Alaasam on the violation for peace pact cannot be proved, the full
maintenance cannot be given to the state of Haorah.

To Conclude by applying the principle of “Qui non obstat quod obstare potest facere
videtur” (An individual who does not prevent something which he/she could have prevented,
is taken to have done that thing) State of Haorah who had already failed to discharge its
already existing duty cannot be given with full maintenance of the temple.

It is humbly submitted before this hon’ble court that, the full maintenance of the temple
should not be given to the State of Haorah.

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 PRAYER

Wherefore in the lights of the issued raised, arguments advanced, authorities citied, it is
humbly prayed before this hon’ble court to declare that:

the case is not maintainable and,

the State of Alaasam is not liable for the act of vandalizing the temple and also cannot be
made liable to pay compensation for the physical harm to the people of Haorah and,

the State of Pangoro is not to be impleaded as an essential party to this suit and,

the full maintenance of the temple should not be given to the state of Haorah.

And pass any other order or orders as this hon’ble court may deem fit and proper in the
circumstances of the case and in the light of justice, equity and good conscience and thus
render justice.

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