IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 473 of 1996
FIRST APPEAL NO. 5952 of 1995
FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA
1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES
2 To be referred to the Reporter or not ?YES
3 Whether their Lordships wish to see the fair copy of the judgment ? NO
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India NO or any order made thereunder ?
CIRCULATE THE JUDGMENT AMONGST THE JUDICIAL OFFICERS OF THE SUBORDINATE COURTS.
LEGAL HERIS OF DECD.UMEDMIYA R RATHOD & 5….Appellant(s)
STATE OF GUJARAT….Respondent(s)
MR AJ MEMON, ADVOCATE for the Appellant(s) No. 1 – 1.2 , 2 – 6
MR MAULIK G NANAVATI, AGP for the Respondent(s) No. 1
MS NISHA THAKORE WITH MR UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADERS for the Respondent No.1
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 04/08/2017 CAV JUDGMENT
1 This Letters Patent Appeal has been placed before me by an order of the Honourable Chief Justice, as there was a difference of opinion between Hon’ble Mr. Justice Jayant Patel (as His Lordship then was) and Hon’ble Mr. Justice S.R. Brahmbhatt when they heard the Letters Patent Appeal in the first instance. The Hon’ble Judges comprising the Division Bench, while delivering the judgment and order dated 7th March 2011, have taken different views in respect of the issues that have arisen in the subject appeal and have stated the following:
“In view of the aforesaid disagreement by both of us, office is directed to place the matter before the Hon’ble the Chief Justice for placing the matter before the appropriate Court after obtaining suitable orders from the Hon’ble the Chief Justice on administrative side.”
2 I may state that the Letters Patent Appeal is against the judgment and order dated 16th March 1996 passed in the First Appeal No.5952 of 1995, whereunder the learned Single Judge of this Court (Coram: Y.B. Bhatt, J.) dismissed the appeal preferred by the plaintiffs / appellants under Section 96 of the Code of Civil Procedure challenging the judgment and order passed by the City Civil Court dated 10th July 1995 dismissing the suit for damages filed against the State of Gujarat for the loss caused to the family members of the deceased on account of his death in firing by an army personal on 20th June 1985.
3 The Hon’ble Justice Mr. S.R. Brahmbhatt dismissed the Letters Patent Appeal affirming the order passed by the Trial Court as well as by the learned Single Judge, whereas the Hon’ble Mr. Justice Jayant Patel quashed and set aside the judgment and decree for dismissal of the suit 2and its confirmation thereof by the learned Single Judge in the First Appeal, allowing the suit with the decree of compensation of Rs.90,00/ with interest at the rate of 7% per annum.
4 On 31st August 2012, the Division Bench passed the following order:
“After the order passed by the third Hon’ble Judge (Justice J.B. Pardiwala) of this Court dated 01.08.2012, the matter is again placed before us for formulating the points of difference. We have considered the view expressed by both of us. Hence, the following points of difference
1. If no evidence is led in a civil suit by the defendant after filing the written statement, what will be the effect, whether defence taken in the written statement could be considered by the Court at the final decision of the suit or not?
2. When the army is deployed for maintenance of law and order within the State at the request of the State Government and any liability arise for lapse or otherwise of the army, whether such would be the liability of the army or the Union of India of its own or such liability is to be borne by the State Government?
3. In a matter of State opening fire while maintaining law and order situation, it will be whose burden to prove the justification for opening fire, whether upon the State or it would be for the citizen to prove that there was negligence on the part of State official or the army official deployed at the State insistence for maintenance of law and order when civil suit is filed?
Matter now shall be placed by the office before Hon’ble the Chief Justice on administrative side for appropriate order.”
5 Let me now state the facts in details. The appellants are the original plaintiffs (being the legal heirs of the deceased husband of the original plaintiff No.3), who filed a Civil Suit No.3605 of 1986 in the Court of the learned City Civil Judge, Ahmedabad for damages in torts for an alleged act of negligent firing resulting into the death of the husband of the third plaintiff and the appellant in the First Appeal 3No.5952 of 1995 arising out the Civil Suit No.3605 of 1986.
6 On the fateful day of the incident i.e. on 20th June 1985, when a ‘Rath Yatra’ i.e. the chariot procession of Lord Jagannath was on its way to the Delhi Darwaja, via the Prem Darwaja, at the Jordan Road, the deceased had gone on the terrace of his neighbour’s building, which was adjacent to his own house situated 52 to 60 feet away on the western side of the Jordan Road for collecting the quilt, which was put up for drying. At that point of time, as pleaded, the Army opened fire recklessly and negligently, and in the process, the deceased sustained a serious bullet injury and died. The case of the appellants is that the Army, without giving any warning and without any justifiable reason and without making any appeal to maintain peace, arbitrarily and indiscriminately opened fire. It is alleged that the Army personnels, in an erratic mood, opened fire with an intention to kill the residents of the surrounding area. It is further averred in the plaint that on 20th June 1985, curfew was imposed within the walled area of the city of Ahmedabad, and on that date, there was no permission issued by the Government authorities for taking out the chariot procession. Despite the same, the persons connected with the chariot procession had taken out the procession without the permission. The procession started from the temple of Lord Jagannath. Instead of taking the procession through outside the Prem Darwaja, the procession entered into the walled city area through the Prem Darwaja under the surveillance of the Army and all of a sudden, as alleged, the Army opened fire resulting in the death of the husband of the appellant No.3 herein.
7 In the civil suit filed for damages, the following issues were framed by the Trial Court:
(1) Whether the plaintiffs prove that the deceased Gulam Rasul Umedmiya Rathod died in a police firing on 30.6.1985? (2) Whether the plaintiffs prove that the police was negligent in opening fire in the circumstances of the case?
(3) If the plaintiffs succeed what should be the amount of compensation?
(4) Whether the defendant State proves that the action of opening fire on the part of police was just and proper in the circumstances of the case to maintain law and order?
(5) What order and award?”
8 The findings of the aforesaid issues were answered as under:
“The findings on the aforesaid issues are as under:
(1) In the affirmative.
(2) In the negative.
(3) The plaintiffs failed and hence no award.
(4) In the affirmative.
(5) As per the final order.
9 The suit, ultimately, came to be dismissed vide judgment and order dated 10th July 1995. The appellants herein, thereafter, filed a First Appeal No.5952 of 1995 in this Court under Section 96 of the C.P.C. The First Appeal came to be dismissed vide judgment and order dated 16 th March 1996. The learned Single Judge, while dismissing the First Appeal, held as under:
“8. The first aspect which requires consideration is based on an admitted fact, in respect of which the trial court has apparently not devoted sufficient attention. However, the trial court cannot be faulted for the simple reason that the parties have themselves not focused their attention in their pleadings on this admitted fact. It is an admitted fact that the firing which resulted in the death of the husband of the third plaintiff 5was not a firing by the police authorities, but was a firing by the Army contingent. I say that this is an admitted position not merely on account of the recitals made in the judgement, but also because it appears to be common ground of the respective parties as appearing from the evidence on record. Furthermore, the learned counsel for the appellant was put this specific question during the course of the hearing, and after due deliberation, he has conceded that admittedly it was the Army and not the police who had actually resorted to firing.
9. The direct consequence of this admitted fact is that it would raise many other issues, which may be issues of fact and/or issues of law and/or mixed issues of facts and law, which unfortunately have not been raised on account of either defective pleading on the part of the plaintiffs and/or incomplete and vague evidence on the part of the plaintiffs. Only by way of illustration, I may indicate how this admitted fact would raise many other questions. Firstly, the Army authorities nor the Captain who is alleged to have been the head of the army Contingent at the relevant point of time have been made partydefendants to the suit. Thus, they have been denied an opportunity of defending themselves of the allegations made against them as regards negligence and/or nonjustification for the firing. If the tort feasor who is not merely a proper party, but a necessary party in a suit for damages for torts, cannot be held liable for negligence and consequently for damages, certainly the defendantState of Gujarat cannot be held liable on the principle of vicarious liability. It goes without saying, and it is certainly the plaintiffs’ case, that the State is liable for the acts complained of, on account of the acts done by its officers, agents, subordinates, etc. However, since it was the Army which had resorted to the firing and not the police, certainly it cannot be taken for granted or assumed that the Army authorities were servants, agents or officers of the State of Gujarat. This would be a matter of both pleading and evidence, and obviously there is no evidence on record to indicate in any manner whatsoever whether the Army authorities were present on the spot as of right, or whether their presence there was with a view to assisting the police, or with a view to supplant the police force, and whether they were there at the request of the civil administration, whether they were under the control of the civil administration and/or the executive Magistrate, whether they acted independently and/or on the judgement of the Army Captain who was present on the spot, or whether the Army contingent and the Captain were under the direction and control of the Executive Magistrate, etc. Thus, it is not a matter of assumption or presumption (and it can never be so) that the State of Gujarat (the sole defendant) would ipso facto become liable for damages in tort on the principle of vicarious liability in respect of acts committed by the Army authority (even if the Army contingent was shown by evidence to have acted negligently).
69.1 For an appropriate appreciation of the perspective discussed by me hereinabive, it must be kept in mind that the case of the plaintiffs, as pleaded in the plaint and as sought to be established by the evidence of the third plaintiff alleges negligence only to the State of Gujarat (the sole defendant) as vague and general entity, without any specific allegation being made either against the Executive Magistrate who was present on the spot and/or against the Army contingent which actually resorted to firing, and/or against the Army Captain who was incharge of the Army contingent and also present on the spot. In fact on a total interpretation of the pleadings as set out in the plaint and as sought to be established by the oral evidence of the third plaintiff, appears to indicate that the plaintiffs have attributed negligence to the police and not to the Army contingent. Thus, they have sought to make the State of Gujarat (the sole defendant) as liable on the principle of vicarious liability, although admittedly, the evidence establishes that it was the Army contingent which had resorted to firing.
10. As already stated hereinabove, these aspects have not been brought on record on account of the absence of pleadings of the plaintiffs and/or on account of the plaintiffs having not chosen to make the Army authorities party defendants to the suit. However, no further comment on my part is required except to state that the plaintiffs cannot succeed in this case, on the ground of negligence against the State of Gujarat unless the plaintiffs first establish that the person or entity committing such acts was under the authority and/or direction and/or under the control of or was an agency of the defendant State of Gujarat. I refer to this situation only to point out that this is merely an additional ground on which the suit is required to be dismissed.
11. It must also be borne in mind that the suit is for damages in torts, and for wrongful acts committed by the defendant which would amount to negligence and/or failing to take necessary degree of care. Without going into a detailed discussion on the case law on the subject, suffice it to say that the burden of proof is on the plaintiffs to show that the defendant and/or its servants, agents, etc. had failed to take the necessary care on the facts and circumstances of the case. It is equally obvious that whether sufficient care was taken or whether there was a flagrant abandonment of the duty to take adequate care is necessarily a question of fact and this bundle of facts must necessarily be established by the plaintiffs by bringing appropriate evidence on record. It would be futile on the part of the learned counsel for the appellant to suggest that the composite interpretation of issue no.2 and issue no.4 would result in each party being required to shoulder the burden of proof separately in respect of different portions or aspects of the very same bundle of facts.
7 of 116 Created On Sat Aug 05 01:41:42 IST 2017
12. It may also be noted that the evidence on record establishes that the Executive Magistrate was present on the spot and at that point of time, as also the Army Captain, when the firing actually took place. It is not necessary for me to resort to the provisions of section 114 of the Evidence Act to draw a presumption that this was a an official act of a person or a body acting in its official capacity and that therefore such action may be presumed to have been taken legally, unless contrary evidence is produced by the plaintiff. Even otherwise, without resorting to such a presumption, there is incontrovertible evidence on record that the two above mentioned officers were present on the spot, and if the firing was resorted to by the Army, and looking to the prevalent facts and circumstances, and looking to the reasons for which the Army personnel were kept present and were accompanying “Rath Yatra”, there certainly can be a general presumption, and not necessarily on the facts of the case, that if a firing was resorted to, it must have been for good and valid reasons, specifically for the purpose of maintaining law and order and specifically for the purpose of preventing a larger number of deaths of the citizens and/or larger damage to property, both of its citizens and belonging to the State.
12.1 Even otherwise when a plaintiff files a suit for unliquidated damages for negligence in torts, it is for the plaintiff to prove that the defendant was guilty of negligence and/or guilty of nonperformance of its minimum duty to take care. In the context of this well settled legal position the plaintiff has failed to establish by evidence on record, that the Army personnel who resorted to firing were in fact guilty of such an order of negligence. There is no substantive evidence on record on this aspect apart from the bare assertion of the third plaintiff in her deposition, who was inside the house and therefore not an eyewitness.
13. There is yet another matter or aspect on which the suit could have been and has been justifiably dismissed. The plaintiff has failed to lead any substantive evidence as regards the quantum of damages claimed except the bare assertion of the third plaintiff as regards the socalled income of the deceased and thus there is no justification for the quantum of damages claimed. Even this assertion of the socalled income does not lay sufficient foundation for the quantum actually claimed inasmuch as the other essential links are missing from the evidence. In other words, mere assertion of income even if found to be acceptable, fails on the particular facts and circumstances of the case to establish sufficient justification for the quantum of damages actually claimed.
14. Learned counsel for the appellant seeks to rely upon a decision of the Supreme Court in the case of Jay Laxmi Salt Works Ltd. Vs. State of Gujarat (1995 (1) GLH page 37). Learned counsel for the appellants 8relies particularly upon the observations made and the proposition laid down in paragraphs 11, 14 and 15 of the said decision. Having perused the same carefully, I am of the opinion that the same does not and cannot assist the appellants looking to the particular facts and circumstances of the case and looking to the state of evidence on record. Needless to say, there cannot be any controversy as regards the proposition of law laid down therein. However, when it comes to the application of those principles to the facts of the case, it is found that the plaintiffs have failed to establish the necessary and essential facts by way of appropriate evidence.
15.1 It must also be kept in mind that the observations of the Supreme Court in the said decision are made in the context of the scope and effect of Articles 26, 36, 49 and 115 etc. of the Limitation Act. It, is, therefore, obvious and does not require overemphasis to appreciate that the observations of the Supreme Court must be read in the context of the question which was under consideration and kept confined to that context.
15.2 The Supreme Court in the case of C.I.T. Vs. Sun Engg. Works (1992(4) SCC 363) in para 39 thereof has laid down the proposition, which is in itself a proposition of law, that the decisions of the Apex Court must be read, understood and applied in the context of the specific issue which was under consideration before the Apex Court in the specific decision under reference. Thus, observations or even principles laid down by the Supreme Court cannot be read out of context or outside the context of the specific issue before that Court in that particular decision. For this reason I am not inclined to enter into a detailed discussion of the decision sought to be relied upon by the learned counsel for the appellant.
16. Learned counsel for the appellants has also sought to rely upon an unreported decision of a Single Judge of this Court dated 21st August 1995 in First Appeal No.1716 of 1995. I have examined this decision in detail, with all possible emphasis laid thereon by learned counsel for the appellants, and I am nevertheless of the opinion that the same is a decision on the particular facts of that case, and does not involve any principle of law on account of which I am required to take a different view.
17. Learned counsel for the appellant also seeks to rely upon a decision of the Allahabad High Court in the case of Babu Singh Vs. Champa Devi (AIR 1974 Allahabad 90). He places particular reliance upon the observations made in para 9 of the said decision to the effect that negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something 9which is a prudent and reasonable man would not do do. Negligence is not a question of evidence, but it is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one and is rather a comparative term. What may be negligence in one case may not be so in another.
17.1 In the context of the said decision and the observations relied upon, needless to say, I entirely agree with the fundamental proposition laid down therein. However, in my opinion, the same would not be of any assistance to the learned counsel for the appellants inasmuch as, even going by this definition of negligence laid down in this decision, the question remains to this effect viz. “What inference can legitimately be drawn from the facts proved on the record of the case?”. As already discussed hereinabove, the paucity of evidence on record does not permit any positive inference to be drawn as regards the alleged negligent action of the defendant State of Gujarat and/or its servants, officers, agents, etc. It is mere hairsplitting to say that negligence is not a question of evidence, but is an inference to be drawn from such evidence. To my mind, it is obvious that first of all there must be proper, adequate and sufficient evidence on record, before the same can be appreciated (and correctly appreciated in the light of the appropriate law), before any inference whatsoever can be drawn from such evidence. Thus, when the trial court comes to the conclusion that the plaintiffs have failed to prove that the defendantState was negligent in its action(s), the net result and/or meaning of the finding is only that the evidence on record, such as it is, cannot possibly lead to any inference that the defendantState was guilty of negligence, on the particular facts and circumstances of the case.
18. In the light of the aforesaid discussion I am of the opinion that the impugned judgement and decree are eminently sustainable and there is no justification for interference, on facts or in law, in the present appeal. This appeal is, therefore, summarily dismissed.”
10 Being dissatisfied with the judgment and order passed by the learned Single Judge dismissing the appeal, the present Letters Patent Appeal was filed. There was a difference of opinion between two learned Judges of the Division Bench. One learned Judge thought fit to affirm the order passed by the learned Single Judge dismissing the First Appeal holding as under:
10 of 116 Created On Sat Aug 05 01:41:42 IST 2017
20.”The citizen received bullet fired by Army man when the latter was discharging his duty of maintaining law and order and when he was acting under the orders of Executive Magistrate. Let us examine whether in such a situation said act could be treated as actionable wrong in civil court. The law on the point of ‘State Act’ and ‘Sovereign Action’ is quite developed.
21.The Apex Court has in case of N.Nagendra Rao and Co. Vs. State of A.P. reported in AIR 1994 SC 2663 explained at length the concept of ‘State Act’ and ‘Sovereign Action’ as it was resorted to as defence in era of pre independence and post independence. The relevant observation deserve to be set out as under :
“23. In the modern sense the distinction between sovereign or non sovereign power thus does not exist. It all depends on the nature of power and manner of its exercise. Legislative supremacy under the Constitution arises out of constitutional provisions. The legislature is free to legislate on topics and subjects carved out for it. Similarly, the executive is free to implement and administer the law. A law made by a Legislature may be bad or may be ultra vires, but since it is an exercise of legislative power, a person affected by it may challenge its validity but he cannot approach a Court of law for negligence in making the law. Nor can the Government in exercise of its executive action be sued for its decision on political or policy matters. It is in public interest that for acts performed by the State either in its legislative or executive capacity it should not be answerable in torts. That would be illogical and impractical. It would be in conflict with even modern notions of sovereignty. One of the tests to determine if the legislative or executive function is sovereign in nature is whether the State is answerable for such actions in Courts of law. For instance, acts such as defence of the country, raising armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are functions which are indicative of external sovereignty and are political in nature. Therefore, they are not amenable to jurisdiction of ordinary Civil Court. No suit under Civil procedure Code would lie in respect of it. The State is immune from being sued, as the jurisdiction of the Courts in such matter is impliedly barred. 24. But there the immunity ends. No civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy.
From sincerity, efficiency and dignity of State as a juristic person, propounded in Nineteenth Century as sound sociological basis for 11State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government at par with any other juristic legal entity. Any watertight compartmentalization of the functions of the State as “sovereign and nonsovereign” or “governmental and non governmental” is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual, change of statutory power being statutory duty for sake of society and the people the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State even though it was against law and negligently. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a welfare State is not shaken. Even in America where this doctrine of sovereignty found its place either because of the ‘financial instability of the infant American States rather than to the stability of the doctrine theoretical foundation,’ or because of ‘logical and practical ground,’ or that ‘there could be no legal right as against the State which made the law’ gradually gave way to the movement from, ‘State irresponsibility to State responsibility.’ In welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and nonsovereign powers for which no rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity. The determination of vicarious liability of the State being linked with negligence of its officers, if they can be sued personally for which there is no dearth of authority and the law of misfeasance in discharge of public duty having marched ahead, there is no rationale for the proposition that even if the officer is liable the State cannot be sued. The liability of the officers personally was not doubted even in Viscount Canterbury (supra). But the Crown was held immune on doctrine of sovereign immunity. Since the doctrine has become outdated and sovereignty now vests in the people, the State cannot claim any immunity and if a suit is maintainable against the officer personally, then there is no reason to hold that it would not be maintainable against the State. 25. In the light of what has been discussed, it can well be said that the East India Company was not a sovereign body and therefore, the doctrine of sovereign immunity 12did not apply to the activities carried on by it in the strict sense. Since it was a delegate of the Crown and the activities permitted under the Charter to be carried on by it were impressed with political character, the State or its officers on its analogy cannot claim any immunity for negligence in discharge of their statutory duties under protective cover of sovereign immunity. The limited sovereign power enjoyed by the Company could not be set up as defence in any action of torts in private law by State. Since the liability of the State even today is same as was of the East India Company, the suit filed by any person for negligence of officers of the State cannot be dismissed as it was in exercise of sovereign power. Ratio of KasturiLal (supra) is available to those rare and limited cases where the statutory authority acts as a delegate of such function for which it cannot be sued in Court of law. In KasturiLal’s case the property for damages of which the suit was filed was seized by the police officers while exercising the power of arrest under Section 54(1)(iv) of the Criminal Procedure Code. The power to search and apprehend a suspect under Criminal Procedure Code is one of the inalienable powers of State. It was probably for this reason that the principle of sovereign immunity in the conservative sense was extended by the Court. But the same principle would not be available in large number of other activities carried on by the State by enacting a law in its legislative competence.
26. A law may be made to carry out the primary or inalienable functions of the State. Criminal Procedure Code is one such law. A search or seizure effected under such law could be taken to be an exercise of power which may be in domain of inalienable function. Whether the authority to whom this power is delegated is liable for negligence in discharge of duties while performing such functions is a different matter. But when similar powers are conferred under other statute as incidental or ancillary power to carry out the purpose and, objective of the Act, then it being an exercise of such State function which is not primary or inalienable, an officer acting negligently is liable personally and the State vicariously. Maintenance of law and order or repression of crime may be inalienable function, for proper exercise of which the State may enact a law and may delegate its functions, the violation of which may not be sueable in torts, unless it trenches into and encroaches on the fundamental rights of life and liberty guaranteed by the Constitution. But that principle would not be attracted where similar powers are conferred on officers who exercise statutory powers which are otherwise than sovereign powers as understood in the modern sense. The Act deals with persons indulging in hoarding and blackmarketing. Any power for regulating and controlling the essential commodities and the delegation of power to authorized 13officers to inspect, search and seize the property for carrying out the object of the State cannot be a power for negligent exercise of which the State can claim immunity. No constitutional system can, either on State necessity or public policy, condone negligent functioning of the State or its officers. The rule was succinctly stated by Lord Blackburn in Geddis v. Proprietors of Bonn Reservoir (1878) 3 App Cases p. 430 at p. 435 : “No action will lie for doing that which the legislature has authorized, if it be done without negligence, although it does occasion damage to any one; but an action does lie for doing that which the Legislature has authorized if it be done negligently.”
27. Matter may be examined from yet another angle. Art. 300 of the Constitution of India is extracted below : “Art. 300. Suits and proceedings. (1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.
(2) If at the commencement of this Constitution
(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and
(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings.”
In Vidhyavati (supra) it was held that this Article consisted of three parts :
(1) that the State may sue or be sued by the name of the State;
(2) that the State may sue or be sued in relation to its affairs in like cases as the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted; and14(3) that the second part is subject to any provisions which may be made by an Act of the Legislature of the State concerned, in due exercise of its legislative functions, in pursuance of powers conferred by the Constitution.
In Vidhyawati (supra) and Kasturi Lal (supra) it was held that since no law had been framed by the Legislature, the liability of the State to compensate for negligence of officers was to be decided on general principle. In other words, if a competent Legislature enacts a law for compensation or damage for any act done by it or its officers in discharge of that statutory duty then a suit for it would be maintainable. It has been explained earlier that the Act itself provides for return of the goods if they are not confiscated for any reason. And if the goods cannot be returned for any reason then the owner is entitled for value of the goods with interest.
23.The Apex Court has in case of Smt. Nilabati Behera Vs.State of Orissa reported in AIR 1993 SC 1960 emphatically reiterated that when in a question of infringement of the fundamental rights, especially under Article 21 and 14 the plea of ‘Stater action’ and ‘Sovereign Immunity’ would pale into insignificance. Thus when a citizen is claiming violation of his rights under Article 21 of the Constitution of India the action based thereon would not be defeated only on the spacious pleas of ‘State Action ‘ or Sovereign immunity.
24.The complaint of breach of Article 21 and actionable wrong based thereon need not be brought only in realm of and as remedy in public law but it could be enforced also under the provisions of private law by way of bringing suit in civil court for tortuous act of State or its agent and servant, as Section 9 of the CPC do not specifically bar any claim based upon any rights including fundamental rights. Thus a citizen has right either to resort to public law remedy of filing a writ petition or filing a civil suit in competent court but in that case the suit is to be tried as if it was brought for enforcing rights and seeking redress in accordance with provisions of the Civil Procedure Code and the plaintiff citizen would be under obligation to prove the negligence or tortuous act of State or its servant in accordance with the provisions of civil procedure code and he would be bound by the rigors of Evidence Act as well.
25.The Apex Court has observed in case of Sube Singh Vs. State of Hariyana reported in AIR 2006 SC 1117 as under:
20. Cases where violation of Article 21 involving custodial death or torture is established or is incontrovertible stand on a different footing when compared to cases where such violation is doubtful or 15not established. Where there is no independent evidence of custodial torture and where there is neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of human right violation, by persons having criminal records in a routine manner for awarding compensation. That may open the floodgates for false claims, either to mulct money from the State or as to prevent or thwart further investigation. Courts should, therefore, while jealously protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable Police to discharge their duties fearlessly and effectively. While custodial torture is not infrequent, it should be borne in mind that every arrest and detention does not lead to custodial torture.
21. In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the Court will have to pose to itself the following questions:(a) Whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death or whether custodial torture is supported by medical report or visible marks or scars or disability. Where there is no evidence of custodial torture of a person except his own statement, and where such allegation is not supported by any medical report or other corroboration evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, courts may not award compensation as a public law remedy under Article 32 or 226, but relegate the aggrieved party to the traditional remedies by way of appropriate civil/criminal action.
26.Now in the light of the aforesaid discussion now let us examine as to what extent the plaintiffs proved the case of patent negligence and carelessness on the part of the State and the Armyman in opening fire and causing death of the husband of the plaintiff no. 3.
27.It is required to be noted at this stage that plaintiffs have chosen to take out remedy under Section 9 of the Code of Civil Procedure and have claimed that damages, which they sustained on account of death of deceased Umedmiya Rathod, husband of plaintiff no. 3, as a result of bullet injury fired by army man posted by the State for maintaining law and order situation. The Act of tort of negligence and carelessness on the agent is pleaded for fastening the liability on principal or in other words, 16the alleged negligence and reckless act of servant is sought to be made subject matter of claim for damages from the master in the suit. The trial Court has framed the following issues and answered as under:
(1) Whether the plaintiffs prove that the deceased Gulam Rasul Umedmiya Rathod died in a police firing on 30.6.1985? (2) Whether the plaintiffs prove that the police was negligent in opening fire in the circumstances of the case?
(3) If the plaintiffs succeed what should be the amount of compensation?
(4) Whether the defendant State proves that the action of opening fire on the part of police was just and proper in the circumstances of the case to maintain law and order?
(5) What order and award?
The findings on the aforesaid issues are as under:
(1) In the affirmative.
(2) In the negative.
(3) The plaintiffs failed and hence no award.
(4) In the affirmative.
(5) As per the final order.
28.The trial Court has discussed issued Nos. 1,2 and 4 together in its judgment. The trial Court has came to the conclusion that State cannot be said to have been in any way negligent and plaintiffs have failed to prove that the State agency had not exercised statutory powers honestly and in good faith. The State agency acted while discharging their statutory functions which ultimately are referable to base on the delegation of the sovereign powers of the State.
29.In these set of evidence, one needs to be mindful that plaintiffs were under duty to make out their own case as per their pleadings in the plaint. It is indeed unfortunate that the plaintiffs have chosen not to join concerned military man, who opened fire or whose bullet hit the plaintiff no.3’s husband, which resulted into sad demise. The nonjoinder of the party in absence of any specific objection, is required to be viewed from the aspect of plaintiffs lacuna in proving their case, as the plaintiffs have not rested their case only on State being vicariously liable on account of act of firing on the part of its servant and agent, in the instant case, as could be seen from the trial Court’s judgment and decree, the army personnel were posted at the behest of State in a sensitive area where the procession was to pass, which was surrounded by Muslim inhabitants and therefore, it cannot be said that army or army personnel were not under the control of the State but a question arises that can this in itself be sufficient to rope in State as a vicariously liable for death of the husband of plaintiff no. 3. As 17it depend upon various factors discussed hereinabove, the State has taken a different stand in its written statement, which, in view of this Court, could be said to be a definite admission qua plaintiffs’ claim that husband of plaintiff no. 3 died during riot or during the firing, that took place on Jordan Road on 30.6.1985. As against this, it can well be said that plaintiffs have not rested their case that they are entitled for claiming damaged on account of only filing, they have gone ahead and unequivocally pleaded and attempted to prove by leading evidence that there was uncontrolled and reckless firing aimed at killing the resident of surrounding area, which resulted into death of husband of plaintiff no. 3. Now when such specific plea is made, than, it was the burden lying upon the plaintiffs to prove it. In other words, when the State was consciously admitting the firing of five rounds during the time, which resulted into death of husband of plaintiff no. 3 and when such circumstances is pleaded and it is stated that the firing was done after giving due warning by the Executive Magistrate, in absence of any cogent evidence, showing contrary, it can well be said that written statement of the State cannot be partly accepted and partly brushed aside. Learned advocate for the State has therefore, rightly submitted that the case of the plaintiffs is otherwise taken upon the written statement to prove that the incident of firing is admitted by the State and death of husband of plaintiff no. 3 during firing is also admitted by the State. Otherwise, it was bounden duty cast upon the plaintiffs to prove the death by leading cogent evidence and therefore, when plaintiffs had relied upon the written statement of the State in respect of firing and death of of husband of plaintiff no. 3 during that firing, than, the rest of the statement, that the firing was absolutely necessary and it was warranted for saving life and liberty and saving damages to property and that it was done only after the executive magistrate on the spot ordered it to be done, etc, were required to be rebutted by the plaintiff by leading cogent evidence. The said written statement could not have been brushed aside by the learned trial Court, the learned trial Court has therefore, come to the conclusion that State has established that firing was warranted and there was no excess in resorting to fire. The amount of round fired looking to entire situation also go to support the case of the State.
30.Thus, from the evidence on record, it can well be said that the incident of death of husband of plaintiff no. 3, which occurred in firing, had not been on account of any overt action of enmity or over stepping of authority or deliberate action on killing someone. The court need to be mindful of the proposition of law that before holding the State responsible or vicariously liable for its servants or agents acts the vary act is required to be proved to be palpably and so imminently wrong as to give cause of action to the aggrieved. In the instant case, as it is seen, the plaintiffs have not proved, though attempted to plead a case of deliberate action on the part of the army to victimize particular community residing in that area. The facts pleaded by the plaints themselves go to show that the unfortunate victim 18had gone to roof top of his neighbor, in other words, the victim has in fact gone out of his residence and on the roof top his neighbor during the time when the entire area was under curfew. When the Curfew was imposed and Army personnel were deployed for maintaining law and order situation and when the procession was passing through the area, the unfortunate incident occurred. In these set of circumstance it was duty cast upon the plaintiffs to prove beyond doubt that the firing was resorted to without it being warranted and that no special care required under these circumstances were not taken by the State. In absence of such proof the Trial Court had no option but to dismiss the suit.
31.The question arises as to whether for such an act, which also amount to act of offence, for which obviously State would not authorize its officer, can State be held responsible?. The Court while holding State responsible in such a situation, has to come to a specific conclusion that act was in discharge of official duty and hence, it was thus rendering the State vicariously liable for the same.
32.Looking to the aforesaid facts and circumstances of the case and the fact that looking to attending circumstances five round of firing were taken place and looking to fact that Jordan Road area is popular for such acts and sensitive area, go to show that firing was not unjustifiable as a result thereof unfortunate incident of death has occurred, to which, though sympathy would flow, the claim under the law of tort cannot be accepted. The authorities cited by learned advocate for the appellants have not been of any avail to the facts and circumstances of the case on hand. It is required to be noted that nonjoinder of the concerned armyman, who opened fire, can be said to be lacuna on the part of the plaintiffs and learned Single Judge’s observation on this ground cannot be said to be in any way contrary to law so as to call for any interference.
33. The Learned Single Judge has elaborately discussed these as aspect. Therefore, the order passed by the trial Court as well as learned Single Judge needs no interference and the Letters Patent Appeal fails and is hereby rejected.”
11 Another learned Judge thought fit to allow the Letters Patent Appeal and decreed the suit holding as under:
5. “Right to life to any citizen guaranteed under Article 21 of the Constitution does provide no deprivation of life except according the procedure prescribed by law. It is hardly required to be stated that in the matter where the liberty or life of the citizen is involved, it is necessary for 19the officers to act with the expectation and strict compliance with the mandatory provisions of law, as it is not permissible in such cases to take a liberal or generous view of the lapses on the part of the officers. Reference may be made to the decision of the Apex Court in the case of Hem Lall Bhandari Vs. State of Sikkim reported in AIR 1987 SC 762.
6. The courts of the country have to render enough zeal to safeguard right to life of any citizen and any lenient approach on the part of the Court to leave room for a casual or cavalier approach on the part of the State or any of its officer would result into failure on the part of the Court to discharge its obligation with which the power is so vested in the judiciary by the constitution of the country. The Court would be zealous to protect and guard the fundamental rights of life of every citizen unless the deprivation by the State or its officer is strictly in accordance with the procedure prescribed by law. If the life of any citizen has been deprived by the State or its officers, heavy burden would lie upon the State to prove that the procedure prescribed by law for deprivation of such life was strictly followed and in absence thereof, any laxity on the part of the State should and must result into appropriate compensation for the lapse on the part of the State or its officers. The matter cannot be looked at from the point of alleged technicalities to join the concerned officer, who has deprived of the life to any citizen when the State itself has admitted that the life was lost in the police firing. It would be for the State prove by cogent material establishing that it is on account of the maintenance of law and order situation after taking all care and caution as was required, the unfortunate incident has happened. Any casual or cavalier approach on the part of the State can neither be leniently viewed nor can be countenanced by the Court, but on the contrary, such approach not only deserves to be deprecated strongly, but should result into heavy compensation for deprivation of the life to the citizen.
7. It is not a matter where the State is clothed with the power to take away the life of a citizen while maintaining law and order situation, but the life of a citizen may be lost if all proper care and cautions are taken by the concerned officers of the State for maintenance of law and order situation and the death of the citizen was the consequence thereof. Any attempt to style deprivation of the life of any citizen by any officer of the State cannot be accepted either on a mere ipsi dixit nor on any mere pleading without their being any proof of it. If the State was to prove that on account of stone throwing on the police or the army, the firing was a must, then it was required for the State to first prove that there was stone throwing. It was also required for the State to prove that after the stone throwing had started, proper warning was given to the mob. It was also required for the State to prove that inspite of the proper warning, the activity of stone throwing did not end. It was also required for the State to prove that thereafter, the permission of the Executive Magistrate was taken for opening police firing and it was also required for the State to prove that 20the police firing was opened in the manner to prevent the mob from stone throwing and not for targeting the bullet so as to take away the life of the citizen. It is undisputed position that neither any documentary evidence is produced whatsoever nor any officer of the State has entered the witness box, may be police officer or the Executive Magistrate who had authority to grant permission for opening police firing. Under these circumstances, if the State has rested itself by just filing written statement, the approach on the part of the trial court to dismiss the suit that too by recording the finding that issue no.2 was not proved, in spite of the fact that the wife of the deceased had entered the witness box and she stood by the pleadings narrated in the plaint even after her crossexamination and that the finding of issue no.4 in affirmative in spite of the fact that no officer of the State entered the witness box for proving the fact of the defences raised in the written statement or for proving the fact for following strict procedure for opening of police firing and consequently resulting into deprivation of the life of the deceased, in my view can be said to be ex facie perverse approach on the part of the trial court while protecting the right of the citizen of the country for right to life and consequently, granting exemption to the State and its officers from its liability to pay compensation.
8. The aforesaid is coupled with the important aspect that permission for procession of Chariot of Lord Jagannathji was not granted by the competent authority. It is while protecting such procession of chariot of lord Jagannathji, the police and the army were deployed and the unfortunate incident happened of deprivation of the life to the citizen. At the same time, it is true that the curfew was imposed in the area, but even if such was the position, the breach of curfew would not result into authorising the State or its officers to take away the life of the citizen unless there were orders of shoot at sight which was not even the case pleaded in the written statement by way of defence on behalf of the State.
9. The learned Single Judge of this Court in the First Appeal unfortunately gave undue weightage to the deployment of the army and consequently, leading to record the finding of nonjoinder of necessary parties. As such, it was not a case even pleaded by the State that the whole area of the route for the procession of chariot of Lord Jagannathji was entrusted to the army but the case pleaded in the written statement by way of defence was that the army was deployed to assist the State and that is the reason why the pleadings were made in the written statement for the permission of the Executive Magistrate. Had the area entrusted to army, the permission of the Commandant of the army would be required, but in a case where the State has requisitioned army for assistance of the State Police or for maintenance of the law and order in certain area of the State, the officers of the army or the members of the armed force would be acting on and behalf of the State Government who has so requisitioned the services of the army and that was the reason why the pleadings are made in the written 21statement for the permission granted by the Executive Magistrate. Therefore, when the members of the armed forces have acted under the permission of the Executive Magistrate, it was not a case where the suit could be thrown away just on the ground that the concerned officer of the army was not joined as the party or otherwise. A citizen who has lost his life or relative of the citizen who has suffered agony may not be knowing the name of the member of the armed force who opened firing under the permission of the officers of the State Government, but the burden as observed earlier, even as per the issues framed by the trial court and even as per the pleadings as well as constitutional mandate of Article 21 was upon the State to disclose the name and to establish that the procedure as prescribed for deprivation of the life was strictly followed.
15.The aforesaid observations and discussions lead me to record the following conclusion
1. On behalf of the plaintiff, a case was pleaded in the plaint and the evidence in support thereof was produced in the plaint for wrongful deprivation of the life of the deceased resulting into the consequence of liability on the part of the State to pay the compensation.
2. The State admitted the incident in the written statement and pleaded certain defences but led no evidence whatsoever by examining any of its officers nor produced any documentary evidence whatsoever in support of the defences raised in the written statement.
3. The plaintiff had satisfactorily discharged the burden upon it for proving issue no.2 in affirmative.
4. The defendant had failed to discharge the burden of proving issue no.4 in its favour.
5. The approach on the part of the State of not leading any evidence whatsoever in support of the defence pleaded in the written statement and after framing of issue no.4 could be said as casual, cavalier in prosecuting the defences in the suit for compensation.
6. The Trial Court failed to consider the basic aspect that the right to life guaranteed to any citizen under article 21 of the constitution is to be zealously guarded and to be enforced, unless the State or its officer by strict proof establishes that the deprivation of the life was through the procedure established by law.
7. The burden of proving the following of the procedure established by law for deprivation of the life of the citizen as per the constitutional 22mandate as well as per the Evidence Act and Civil Procedure Code after framing of the issue, was upon the State for which it failed.
8. The principles of proof beyond reasonable doubt has no applicability if the matter is to be considered for the purpose of awarding of compensation, but in a matter of deprivation of life of any citizen by and or its officers, the burden of proving the procedure followed in accordance with law would be upon the State either itself or through its officers who are representing the State.
9. Deployment of army for maintenance of law and order situation was to assist the State upon the requisition of the State. When the army is working under the instructions of the Executive Magistrate who is an officer of the State, it cannot be said as an action of the army under its military power, but can be said as its operation on behalf of State and the State would be liable for compensation for any lapse on the part of any member of the armed forces so deployed for the purpose of maintenance of law and order situation unless the whole area is entrusted by the State to the army under its full control of its military power.
10.When the State is joined as party in the proceedings and the compensation is prayed from the State, who is represented through the Secretary of the State of Gujarat, Home Department of the State Government, it cannot be said that the suit would fail on account of nonjoinder of necessary part, more particularly when no such issue was even framed by the Trial Court for such purpose.
11.No arguments are advanced on the question of quantum of compensation nor pleaded in the defence. As per the evidence on behalf of the plaintiff that her husband was earning Rs.700/ to Rs.750/ per month in the business could be said as sufficient for awarding of the compensation as prayed of Rs.90,000/. However, the interest rate of 18% p.a. is excessive and the reasonable interest would be of 7% p.a from the date of the suit until the amount is realised by the plaintiff.
16.In view of the aforesaid, the judgement and the decree for dismissal of the suit and its confirmation thereof by the learned Single Judge in First Appeal, in my view deserves to be quashed and set aside by allowing the suit with the decree of the compensation of Rs.90,000/ with interest at the rate of 7% p.a. from the date of the suit until the amount is realised and consequently, the appeal deserves to be allowed with the cost and the decree is required to be drawn accordingly.
17.Hence, with respect, I do not concur with the view taken by my brother (S.R. Brahmbhatt, J.) for dismissal of the appeal, but my ultimate view is 23to allow the appeal as observed hereinabove.”
“Further Order :
In view of the aforesaid disagreement by both of us, office is directed to place the matter before the Hon’ble the Chief Justice for placing the matter before the appropriate Court after obtaining suitable orders from the Hon’ble the Chief Justice on administrative side.”
12 In view of the conflict, this appeal has been placed before me as a third Judge.
13 Mr. A.J. Memon, the learned counsel appearing for the appellants submitted that the right to life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that right. He would submit that the doctrine of sovereign immunity, as pleaded by the State in its defence, is subject to the constitutional mandate enjoining a duty on the State not to deprive any person of his life or personal liberty except without following the procedure established by law. The learned counsel submitted that when a person is deprived of his fundamental right to life or personal liberty, except according to the procedure established by law, by police and the wrong done is actionable, the State is responsible for such deprivation caused by a wrongful act committed by a member of the police force of the Union. According to the learned counsel, the Army was deployed in the city upon the request made by the State Government to the Union in the wake of the tension which was prevailing at that point of time. The Executive Magistrate was put in charge. In such circumstances, he would be taking the decision whether to ask the military personnels to open fire or not. Mr. Memon submitted that the State, except filing the written statement, failed to lead any oral evidence in support of its defence. He would submit that when a party to the suit does not appear in the witness box and states his own case on 24oath and does not offer himself to be crossexamined by the other side, a presumption would arise that the case set up by him is not correct. The averments made in the written statement on oath would not constitute a legal evidence. In such circumstances, the Court has to accept the case put up by the plaintiff. Mr. Memon would submit that the averments made in the written statement would constitute a legal evidence provided the same is a neat question of law or that the facts are such that the Court can take judicial notice under Sections 56 and 57 of the Evidence Act. Mr. Memon submits that the liability would be of the State Government, as the incident occurred in the State of Gujarat and the firing was opened pursuant to the orders of the Executive Magistrate.
14 In such circumstances referred to above, Mr. Memon prays that the suit deserves to be decreed in favour of the plaintiff.
15 On the other hand, this appeal has been vehemently opposed by Mr. Maulik Nanavati, the learned A.G.P. for the State. Mr. Nanavati has filed his written submissions. The submissions read as under:
“Case of the plaintiff as contained in plaint and evidence led by plaintiff The relevant averments in the plaint, translated into English, would read as under:
(a) Military without any prior warning, without any justifiable cause and without making any preparation to maintain peace opened fire in an arbitrary manner. Further, the way in which firing was done indicates that military in a totally careless manner and with an intention to kill the residents of the locality did the firing.
(b) Military men in a manner which would encourage miscreants in their intention and conduct of seeking communal revenge opened fire by aiming at only Muslims and because of such firing by the military death of father of plaintiff has taken place and with the result that for such criminal at person responsible for it is liable.
(c) Military men were behaving in any arbitrary and brazenly negligent 25manner and yet the State did not make any attempt to stop them. Therefore, the State Government is responsible for the monetary loss caused to the plaintiffs.
A reading of the plaint would reveal that the case of plaintiffs is that the military indirectly encouraged the miscreants to seek communal revenge and afterwards opened fire without any justifiable reason and in an arbitrary and absolutely negligent fashion towards persons of Muslim community and thus killed the father of the plaintiffs, and that the person who killed their father committed a criminal act. The plaint does not state that the army men opened fire, in discharge of their duty or under colour of their office, with a view to control the rioting mob and prevent worsening of law and other situation. It is also not pleaded that military opened fire under instructions of the officers of the State Government. The only case pleaded is that the military personnel were acting as persons of the State Government and, therefore, the State Government is liable for the act of killing the plaintiff’s father.
It is settled that the plaintiff cannot plead a case which is contrary to his pleadings. The plaintiff has not led and cannot lead evidence which is contrary to the case as pleaded in the plaint. The evidence led by the plaintiff is that curfew was imposed in the area, that all the residents of the locality were inside their house and the husband of plaintiff no.3 had at the relevant time gone to the roof of their house for drying mattress. There was no pelting of stones on the police from their locality. The military had not given any prior warning before opening fire. The military aimed at persons and thereby killed their father.
Nonjoinder of necessary party – suit must fail. (CPC – Order 1, Rule 9 proviso) The allegations in the plaint and the evidence led in support of the pleadings are against the military. The accusation is that the military without any justifiable reason and without following proper procedure arbitrarily and indiscriminately opened fire, and not that they did so acting in discharge of their official duty or purported discharge of their duty. As per the averments in the plaint, they were acting of their own volition and not according to law. It is submitted that plaintiffs having pleaded such a case it was absolutely necessary for the plaintiffs to join the person responsible for firing towards their father and killing him as a party defendant in the suit. Yet, the army man who fired at the father of plaintiffs or other responsible of the military stationed in the area has not been made a party respondent. In absence of such a party no adverse finding could be recorded against it and the State cannot be made responsible for the act of such party. Such necessary party not having been made defendant in the suit, the suit deserved to fail as rightly held by the learned Single Judge.
26Defence of State Government The State has filed a written statement stating that curfew was imposed in the area and military was posted to maintain law and order. During the rath yatra procession there was pelting of stones from the direction of Jammadar Mohalla on the military and the law and order situation had so worsened that to control the state of affairs the military after taking approval of the Executive Magistrate who was present there opened fire to regain command of the situation. It is further averred that the military fired 5 rounds and it was in that firing that the father of plaintiff’s died.
Admission – Evidentiary value And averment in a written statement is not evidence, unless it is in the nature of admission. Here, there is admission on the part of the State that father of plaintiff’s died in military firing which was opened after approval from the Executive Magistrate and because the situation prevailing at the moment demanded resorting to firing to control the law and order situation. Now it is settled law that admission has to be accepted as a whole and in its entirety. (Dudh Nath Pandey vs. Suresh Chandra Bhattasali (1986) 3 SCC 360). A written statement is not a pleading in confession and avoidance whereby a defendant is bound by the confession and compelled to prove the avoidance; if used as evidence against a defendant, the whole statement must be taken together. If a written statement contains an admission of certain facts which are favourable to the plaintiff but contains a denial of other facts favourable to him or an assertion of other facts which are unfavourable, the plaintiff must, if he wants to avail himself of the admission, take not only the first set of facts as truly stated, but also the second set of facts. If the plaintiff is not prepared to take both, he would have to prove his case on his own pleadings and strength. (Fateh Chand Murlidhar vs. Juggilal Kamlapat – AIR 1955 Cal 465). If the written statement and the admission contained therein are accepted as a whole then the State has clearly made out a case that the firing was done because there was pelting of stones on the police and the situation required opening fire and that it was done after taking approval of the Magistrate. It is submitted that under the circumstances the said act can neither be said to be negligent or unnecessary and for which the State can be held liable. The plaintiff has thus failed to prove the case of negligence and the tortious liability of the State. This submission is made without prejudice to the contention of the State that in view of the said averment in the written statement it was not necessary for it to lead evidence in support of it as it was admission regarding the circumstances in which the firing was done.
But for the admission by the State in its written statement that the father of plaintiffs died in firing by the military, there is nothing on record to 27establish that their father died because of negligence in firing by the military. Therefore, if the written statement filed by the State is excluded, then the plaintiff has miserably failed to make out a case of negligent firing by the military and that while doing so the military was acting in discharge of its duty. On the contrary, the plaintiff’s pleading and evidence is that the persons who fired were acting of their own volition and in complete disregard of law and that the State made no attempt to stop them from acting in such manner. In that view of the matter, the State cannot be held vicariously liable for the individual act of the army man.
Doctrine of sovereign immunity Assuming that the evidence led by plaintiffs is believable still it does not make out a case of tort for which the State of Gujarat can be held liable for damages. To hold the State vicariously liable for the acts of its servants, it is necessary for the plaintiff to establish that the death was caused because of negligence of an officer of the State acting in discharge of his official duty or under colour of his office. Only after it is so established can the question of State being vicariously liable for examined.
An act which gives rise to a claim for damages, if committed by an employee of the State during the course of his employment, and if employment belongs to a category which can claim the special characteristic of sovereign power, the claim cannot be sustained. There would be no tortious liability of the State for an act performed by its servant in discharge of a sovereign function. As held in a series of judgments of the Hon’ble Supreme Court, functions such as making of laws, administration of justice, maintenance of law and order and repression of crime, carrying on of war, making of treaties of peace and other consequential functions, etc. are among the primary and inalienable functions of a constitutional government, and the State can claim immunity on account of sovereign function of the State.
It is true that where an account of tortious act of the servant of a State, a person’s fundamental right to life and liberty is violated, the Courts grant damages and compensation to that person. However, such liability is based on the provisions of the Constitution of India and is a new liability which is not hedged by any limitations including the doctrine of “Sovereign immunity”. In the present case, the plaintiff has not invoked powers of the Court under Article 226 of the Constitution alleging violation of law fundamental right but has on the contrary filed a suit in private law complaining of tort and seeking compensation on account of vicarious liability of State for the allegedly negligent act of its servant. Therefore, the defense of doctrine of sovereign immunity would be available to the State in the present case, both in law and on facts. (See: Nilabati Behera vs. State of Orissa – (1993) 2 SCC 746; N. Nagendra Rao & Co. vs. State of A.P. (1994) 6 SCC 205; Common Cause vs. Union of India –
28(1999) 6 SCC 667).
Therefore, in the alternative, it is submitted that assuming it is found that the military was acting in discharge of its official duty and on instructions of the State, even then the State cannot be held to be vicariously liable as the said act of the military was done by it in discharge of a sovereign function.
Conclusion For each of these reasons, viewed individually or collectively, the claim of the plaintiffs deserves to be rejected. The judgment of the Trial Court as confirmed by the learned Single Judge of this Hon’ble Court deserves to be confirmed, either for the reasons contained in those judgments or even independently for reasons mentioned herein above, and the present appeal is liable to be dismissed.”
16 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the suit is liable to be decreed and an appropriate compensation should be awarded in favour of the plaintiffs.
? SOVEREIGN IMMUNITY:
17 Let me first deal with the issue of sovereign immunity raised on
behalf of the State.
18 In England the immunity of the Crown from liability for a tort was
based on the maxim : ‘The King can do no wrong’. Ours is a sovereign socialist secular democratic republic and Article 21 of our Constitution protects the life and liberty of the citizens, except according to procedure established by law. In cases where this guaranteed right is invaded or infringed, may be by the State or by another citizen or body, an action lies under law for proper remedy. No doubt Article 300(1) of the Constitution renders immunity to the State against an action, if there is any law made clothing such immunity. It is not in dispute that so far 29neither this State nor the Parliament has legislated any law by virtue of the powers under Clause (1) of Article 300. However, there does lie no action if the act complained of is one committed in discharge of ‘sovereign functions’ since actions in accordance with the procedure established by law are immune and excepted from the protection guaranteed by Article 21 as regards the life and liberty of a citizen.
? SOVEREIGN FUNCTIONS:
19 Sovereign functions are those actions of the State for which it is
not answerable before the Court of Law. Matters such as defense of the country, raising and maintaining armed forces, making peace in retaining territory, are functions which are indicative of external sovereignty and are not amenable to jurisdiction of ordinary civil Court. Sovereign functions are primarily inalienable functions, which the State only could exercise. The State is engaged with various functions, but all of them cannot be construed as primary inalienable functions. Taxation, eminent domain and police functions including maintenance of law and order, legislative functions, administration of law, grant of pardon could be found as the sovereign functions of the State. In the modern sense, the distinction between sovereign or non sovereign power does not suit. It depends upon the nature of the power and the manner of its exercise.
20 Peninsular and Oriental Steam Navigation Co. vs. Secretary of State for India [(186869) 5 Bom HCR App.1], was the historical case which had drawn the principle of sovereign and non sovereign functions of the Government while deciding the extent of liability and immunity of the State. The Supreme Court of Calcutta held that the Secretary of State is liable only for the extent of commercial functions and not liable for anything done in exercise of sovereign powers. The dichotomy theory of 30″Sovereign and Non Sovereign functions determined by the Court in Peninsular case helped the judiciary to interpret the functions of the government when the question of liability of State arose. But there is no uniform and static norm to decide the sovereign functions. The following judicial interpretations are given by the Courts in various cases as sovereign functions to exempt the State from liability. When the functions of the State are carried out by its servants under the provisions of the State the State is not responsible to pay compensation for the wrongful acts of its servants.
? PERFORMANCE OF STATUTORY DUTY
21 There is no yardstick to measure to what extent the State is
immune from liability for the wrongful acts of servants of State. In Shivbhajan Durga Prasad vs. Secretary of State [ILR 28 Bom. 314 (1904)], certain bundles of hay were negligently attached by the Chief constable of Mahim, the petitioner was arrested and prosecuted, later he was acquitted by the Court. He sued the Secretary of State for compensation for the negligence of the constable. It was held that the Secretary of State was not liable for damages on account of the negligence of a Chief Constable, with regard to goods seized not in obedience to an order of the executed government, but in performance of a statutory power vested in him. Gurucharan kaur vs. Province of Madras [AIR 1980 SC 1362], was another case where a Sub. Inspector of Police, acting under a bona – fide, though erroneous belief that he was to detain Maharani of Nabha and wrongfully confined her. Concerning the claim of Compensation, the Government was held not liable, as the police officers have taken the action in pursuance of statutory duty even though under a mistaken view. A statutory duty was thus clothed with a sovereign halo. Also in Union of India v. Sat Pal [AIR 1969 J&K 128], 31the plaintiff’s claim for Rs.500/ being the penalty imposed by the Land customs Authority was rejected on the authority of the Supreme Court decisions as the levy of penalty was a power vested in the Land customs officers under the Statute.
? MAINTENANCE OF PUBLIC PATH:
22 The State maintains public paths, for the welfare of the general public and there is no commercial object in it. So, laying public path and its maintenance are part of sovereign functions of the State. In Mclnerny v. Secretary of State [(1911) 38 ILR Cal 797], the Calcutta High Court held that, the Government was not carrying any commercial operations in maintaining a public path and therefore was not liable for damages for the injury sustained by the plaintiff through coming into contact with a post set up by the Government on a public road.
? MAINTENANCE OF MILITARY ROAD:
23 Maintenance of military road is one of the sovereign functions of the State. It is carried out by the public works department for the purposes of defense. In Secretary of State v. Cockraft [AIR 1965 Mad. 993] where the plaintiff was injured by the negligent act of the servant who left a heap of gravel on a military road over which no one was walking. A suit for damages against the Government, was held not to be maintainable by the Madras High Court because the maintenance of roads particularly of a military road was one of the Sovereign, and not the private functions of the government.
? COMMANDING GOODS DURING WAR 24 As stated above, commandeering goods during war is sovereign functions of the State in Kessoram Poddar & Co. v. Secretary of State 32[AIR 1928 Cal. 74] the plaintiff company sued the Secretary of State to recover damages for the injury sustained by them by reason of the defendant’s failure to take delivery and pay for certain goods bought by the defendant from it by commandeering Orders. Rejecting the claim, Chotznar J, held that the commandeering Order was one which no one but the Government could make and being an act of the sovereign power, the Secretary of State could not be sued in respect of it.
? TRAINING FOR DEFENCE:
25 The training provided by the State for the purpose of defense is to secure the general public and it is the sovereign function. In Secretary of State v. Nagerao Limbaji [AIR 1943 Nag. 287] the plaintiff brought a suit against the Secretary of State for damages for the loss of his finger due to the explosion of an ignition sot lying near the area which was used as a practice bombing ground by the military authorities. It was held that the provision of facilities for bombing practice was a public duty undertaken by the State in order to provide training for the army. Such duties are not exercised by the State for its own benefit, but for the protection of the entire population.
? ARREST AND DETENTION 26 Maintenance of law and order includes arrest and detention; it is the sovereign function of the State when it is done in good faith. In M.A. Kador Zailany v. Secretary of State [AIR 1931 Rang. 294] where some police officer wrongfully arrested and imprisoned the plaintiff, he filed a suit for damages against the Secretary of State. It was held that, the Government was not liable for the wrongs done by its officers unless the wrongful act is done either by Order or on its behalf and subsequently ratified or adopted by it. Similarly, In Gurucharan Kaur v. Madras 33Province [AIR 1942 Mad. 539] the D.S.P. instructed the police Sub Inspector to go to the station and prevent certain Maharaja from leaving that station. The fact however was that it was not the Maharaja but his wife, the Maharani and his daughter alone were awaiting the arrival of the train in her own car. On the arrival of the train, the SubInspector acting under a bonafide, though erroneous belief, that he was to detain the Maharani, not only prevented the Maharani from boarding the train but also got the gate in the iron fencing closed and posted two constables near it. A suit was brought by the Maharani and her daughter for wrongful confinement. It was held that the Government could not be held liable for the acts of police done in discharge of their statutory duty in “good faith”. Thus, if the wrongful restraint by the government servant is made in “good faith,” the State is not liable.
? PERFORMANCE OF MILITARY DUTY:
27 In Union of India v. Harbans Singh [AIR 1959 P&H 39] where as a result of rash and negligent act of a driver of a truck of the Military Department of the Union of India, who was engaged in Military duty, in supplying meals to military personnel on duty the plaintiff?s father was knocked down and run over. The State was held not liable as the act of the driver was done whilst he was performing sovereign function.
In Thangarajan v. Union of India [AIR 1975 Mad. 32] a defense lorry was carrying carbon dioxide gas from a factory to the ship I.N.S. Jamuna. By the negligent act of driver it dashed a small boy. On a suit against the State, the Court held that the lorry belonged to the defense department. Union of India was driven in the exercise of sovereign function. So, State is immune from liability.
34State is not liable for the acts of its servant when such acts are committed without the authority of law. In such cases, State cannot be held liable because there is no act on the part of the State which holds the State responsible. The officials of the State enjoy a vast discretionary power which affects the individual rights. They should be held liable for improper exercise or abuse of discretion. In this regard, the Indian Law commission has recommended that the State should be liable if in the discharge of statutory duties imposed upon it or its employees, the employees act negligently or maliciously, whether or not discretion is involved in the exercise of such duty.
? MAINTENANCE OF NATIONAL HIGHWAYS 28 A welfare State has to maintain proper roads for the benefits of the general public. It is part of its sovereign function. In K. Krishnamurthy v. State of A.P. [AIR 1956 SC 333] the driver of a motor road roller negligently struck the plaintiff down and his right hand fell under the front wheel. The driver did not stop the engine forthwith. The plaintiff claimed damages from the State for the permanent loss of his limb occasioned by the rash and negligent act of their servant. The Andhra Pradesh High Court, held that the making and maintenance of National Highways is the exclusive duty of the State, and not a commercial function.
? KEEPING STOLEN GOODS IN THE POLICE MALKHANA:
29 In Kasturi Lal v. State of U.P. [AIR 1965 SC 1039], the appellant was arrested by three constables and his belongings like gold and silver were seized on the suspicion that they were stolen properties. When he was released on bail the silver was returned and the gold was kept at the police malkhana in the custody of a head constable. But the constable in 35charge of the malkhana misappropriated it and fled to Pakistan. The trader therefore, filed a suit against the State of Uttar Pradesh claiming the return of the gold or in the alternative, the full price of the gold. It was proved that the authorities were negligent in keeping the gold in safe custody. Gajendragadkar C.J., observed: If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is: Was the tortious act committed by the public servant in discharge of statutory functions which are referable to and ultimately based on the delegation of the sovereign powers of the State to such public servant. The act of negligence was committed by the police officers while dealing with the property of Kasturi Lal, which they had seized in exercise of their statutory powers. To arrest and detain a suspicious person and to seize his suspicious possessions are delegated sovereign powers of the Government officers under the Statute. Thus, the State was held immune from liability.
This position was also followed in State of Uttar Pradesh v. Chhotoy Lal [AIR 1967 All. 3247] where the police on suspicion, arrested the plaintiff and seized 16 bags of Khandasari sugar of which the movement was banned under the U.P. Control of Supplies (Temporary Power) Ordinance 11 of 1946. But the police could not account for the bags of sugar which had disappeared while in their custody. It was held that, the station officer who seized the plaintiff – respondent?s goods acted in the discharge of statutory duties or to use the words of the Supreme Court “in the exercise of delegated Sovereign power”. Therefore, the State is not vicariously liable for any loss to the plaintiffs resulting from the station officer?s misconduct or negligence or misconduct of any other State official or officials. In Oma Par shad v. Secretary of State [AIR 1937 Lah. 572], the Secretary of State was held not liable for any criminal act of his employee, e.g. where a party sued 36the Secretary of State for the recovery of stolen property, which during the trial of the thieves were kept in the malkhana and were appropriated by the government employee in charge of the malkhana. Keeping the stolen goods in the malkhana was a sovereign function and so there can be no action in respect of them though a private employer will be liable if his servant purloined the goods of “x? left in the possession of his employer. This was explained by the Chief Justice Gajendragadkhar, in Kasturi Lal v. State of U.P. [AIR 1965 SC 1039].
It is submitted that the reason behind the decision in Kasturi Lal’s case is totally illogical as it erroneously adopted the preconstitutional rule and identified statutory power as sovereign power. An official?s immunity corresponding to the statutory power was available only to the bonafide exercise of power, but not to the abuse or misuse of the same. The Kasturi Lal’s case is widely criticized by Jurists as it is a clear example of an improper application of an inadmissible test.
? MALICIOUS PROSECUTION:
30 Maharaja Bose v. Governor General in Council [AIR 1952 Cal. 242], this is the case of wrongful arrest and malicious prosecution brought against the Governor General in Council for damages. The plaintiff in this case was travelling by the defendants Railway from Howrah to Patna. On February 3, 1944, he boarded an interclass compartment in the 5 up Punjab mail at Howrah. On 4th at about 1 A.M. When the said train stopped at Asansol Railway station, 3 Indian soldiers forcibly occupied the plaintiff?s seat. The plaintiff protested against this and he informed it to two employees of the Railways. But they did not take any steps in this matter. When the train started moving, the soldiers threatened the plaintiff with violence. Out of fear for his personal safety, 37he pulled the emergency chain and caused the train to stop. Defendant’s servants to whom the plaintiff had earlier complained reached and made certain enquiries and asked the soldiers to vacate it. When such conversation was going on the Assistant Station master on duty rushed to the compartment and accused the plaintiff for pulling the chain and abused him by using filthy languages and severely assaulted him. Without hearing any more explanation, the plaintiff was dragged out of the compartment, and was given into the custody of a railway police on false charges and detained there. It was stated that the plaintiff was a notable dancer and was on the way to take part in a dance programme at Patna in aid of Red Cross. But the plaintiff failed to disclose his name and identity so the railway servant arrested him. The plaintiff was tried by the Magistrate and ultimately acquitted on July 24, 1944 and was released on a personal bond. The plaintiff claimed compensation on the ground of vicarious liability. It was argued on behalf of the defendant that in as much as the railway servant is concerned, he had acted in the “bonafide? exercise of powers under the Railways Act. Hence, no suit lay against the State. In this case, the issues were that whether the suit is maintainable? Was the plaintiff prosecuted maliciously and without reasonable and probable cause? Was he wrongfully arrested? And what damages, if any, did the plaintiff suffer for which the defendant was answerable.
The Court held that the plaintiff had no sufficient cause for pulling the communication chain. The defendant’s servant was justified in handling the plaintiff over to the police for non disclosure of his name and address. The Court also held that the defendant’s servants honestly and reasonably believed the guilt of the plaintiff and this negated the malice. The suit was dismissed and the State was not held liable for the act of the employee.
38The above decision protects the State’s servant on the ground of statutory immunity. It is evident that the employee of the railway department committed wrong. The theory of benefit applied in this case, showed that the judiciary was also very lenient to the State and the affected ordinary individual was left out without remedy. In State of M.P. v. Dattamal [AIR 1967 MP 246] one Ramachandra was killed by police firing, while controlling a riot on 21st, July 1954. On the date of occurrence there was a student?s agitation at the main road at Indore. The District Magistrate ordered firing. At that time, Ramachandra and his grandson were nearing their house by car after closing their shop. One of the bullets pierced the car and entered in to the body of Ramachandra, and as a result he died. The legal heirs claimed damages for the illegal shooting. The trial Court ordered damages for the negligent act of the police.
This Order was challenged by the State. The appellate Court reversed the Order of the trial Court and held that maintaining of law and order by way of police firing to control riot amounts to sovereign functions of the State. So, liability would not arise. Thus there is no remedy in Indian law since there is no codified law to deal vicarious liability of State like Federal Claims Act and Crown Proceedings Act.
It is unjustifiable that an innocent businessman was shot dead which threatened the right to life guaranteed by the Constitution. The Court also did not see the loss due to the negligence of the police official. Rejection of damages resulted with the economic stress on the innocent family.
? MAINTENANCE OF LAW AND ORDER:
3931 In State of Orissa v. Padmalochan [AIR 1975 Ori. 41], the Orissa Military Police made a lathi charge on a mob assembled in front of the District Court to press their demands. It was stated that without any Order from the Magistrate or other police authorities the police personnel assaulted members of the mob, as a result of which the plaintiff received injuries. He filed a suit for damages against the State for injuries caused to him. The lower Court decided in favour of the claimant but on appeal, the High Court pointed out that, the police personnel committed excess in discharge of their functions without authority and that would not take away the illegal act from the purview of delegated sovereign function and held that the injuries caused to the plaintiff by the police while dispersing the unlawful mob were in exercise of the sovereign function of the State.
Similarly in State of M.P. v. Chironji Lal [AIR 1981 MP 65], the police, while regulating the procession, made a lathicharge and caused damage to the property of the respondent, the State Government will not be liable for the damage. The functions of the State of regulating processions is delegated to the police by section 30 of the Police Act, 1861 and the function of maintaining law and order, including the quelling of riots, is delegated to the authorities specified by section 14 of the Code of Criminal Procedure, 1973. Those functions cannot be performed by private individuals. They are powers exercisable by the State or its delegates as “Sovereign Functions” of the State.
? COLLECTION OF REVENUE:
32 The State is not liable for any wrong done by a public official in the purported exercise of his statutory duties in the area of sovereign activities of the State like collection of revenue etc.
40In Kuppanna Chetty & Co. v. Collector of Anantapur [AIR 1965 AP 457] the Tahsildar wrongfully attached the movable goods under the Madras Revenue Recovery Act and thereby caused considerable damage to the plaintiffs. The Court held that since the collection of revenue was a sovereign or purely State activity, the State was not liable for any tort committed by a Government employee in the course of such activity in breach of his statutory duties. This was upheld in State of Andhra Pradesh v. Ankanna [AIR 1967 AP 41] the revenue officers acted illegally and maliciously detained a bullockcart belonging to the plaintiff for realizing the land revenue under the Revenue Recovery Act. The Court held that the collection of land revenue is a sovereign function and the State is not liable for the malicious act of its servants, when such act is made under a Statute.
In the Preconstitutional period, the act of the authorities in refusing license to the plaintiff relating to the imposition and collection of excise duties [Nobin Chunder Day vs. Secretary of State (1876) ILR 1 Cal. 12] were held as sovereign functions. The State was also exempted from liability for a wrongful act of the collector of Chittagong who paid the surplus sale proceeds of a Taluk not to the real owner but to another person [Secretary of State vs. Ramnath Bhatta, AIR 1934 Cal. 128].
33 The Andhra Pradesh High Court also held in another decision [Venkataramadas v. Latchanna, AIR 1966 AP 277] that the Government is not liable for the illegal seizure of the property (later, the property was sold at an auction by the Government.) for arrears of revenue due of respondent by a public officer (a head village Munsiff).
41? ACTS OF COURTS OF WARDS:
34 Generally acts of Courts of Wards are considered as sovereign function of the State. So the State is immune from liability when there is any fault of Court of wards. In Secretary of State v. Srigobinda [AIR 1932 Cal. 834] the plaintiff?s State was released from the management of the Court of Wards complaining that the manager appointed by the Courts of Wards has not done his duty by realizing all money with diligence. He has also not accounted to the Courts of Wards for certain money which he collected. It is not a case in which the plaintiff can make the Secretary of State or the revenue of India liable.
? ADMINISTRATION OF JUSTICE:
35 One of the functions of the State, in exercise of sovereign power, is to take cognizance of offences coming to its knowledge and to order the trial of such persons in accordance with law. If the persons, discharging administration of the justice, were found to be guilty, the system of judicial functions cannot be carried out properly. So, statutory protection is afforded to them, by the Judicial Officers Protection Act,1960. This is available to the person whose acts can be deemed to have been in his judicial capacity as a Judicial Officer.
A government servant is vested with both „Judicial? and „executive? powers. He is exempted from liability only if he is discharging “Judicial acts” in the Courts of administration of justice. But if he committed the tort of false imprisonment while acting in his executive capacity, he cannot claim sovereign immunity.36 In Mata Prasad v. Secretary of State [[AIR 1931 Oudh. 29], the plaintiff was convicted and imprisoned for four and half years for dacoity. He has also to pay a fine of Rs.500/. But for his good conduct 42he was released after 2 ½ years. The plaintiff claimed damages against the Secretary of State for wrongful conviction of his officials. The Court held that a person who has been charged by a competent Court and punished for that offence is not, therefore, entitled to sue the Secretary of State for India in council for damages in respect of the act of the State in exercise of its sovereign powers. Similarly, in Secretary of State v. Sukhdeo [(1899) 21 All. 341] the Magistrate in his official capacity, ordered to seize certain property belonging to the plaintiff in satisfaction of fine imposed on his son. On the suit brought by the plaintiff for recovery of property, the Court held that the secretary of State was not liable for the seizure of property by the Court.
In Maha Nirbani v. Secretary of State [AIR 1922 All. 2705], the presiding officer of the criminal Court directed, some ornaments which was delivered by the plaintiff to a police officer, to be returned to the original owner and not to the plaintiff. In the suit by the plaintiff, the Court expressed the view that the State was not liable for the loss resulting from a wrong Order of the Court.
Nonliability of the State can be imposed only if any loss is caused to any person by any officer when he is acting under judicial capacity. On this basis the State was held not liable for wrong warrants issued by the judicial officer, as judicial act belongs to the category of sovereign powers.
? NONLIABILITY OF THE STATE UNDER LEGISLATIVE
36 Now the extent of liability and immunity of State under tort
depends on the nature of the power and manner of its exercise. The 43Constitution of India, provides legislative supremacy subject to Judicial review. The Parliament is free to enact any legislation on any topics and any subjects authorized by the Constitutional provisions without violating basic structure of the Constitution. Likewise, the executive is also free to execute the actions through law. Thus the legislature may enact bad law due to its negligence or the law may be affected due to failure of compliance of fundamental rights or public policy. In such circumstances, the affected person cannot approach a Court of law for negligence in making law. The legislature may justify it on the ground of public interest and the executive may also justify it on the same ground. Thus the statutory provisions protect the acts of State for its smooth functioning. Even though it is conflicting with the modern concept of sovereignty, the State should not be answerable in torts. But it is not acceptable that the affected common man is left out without remedy. It is left to the judiciary to render social justice in case when injustice is done due to the legislative or executive action. In such cases, the officers are made personally liable for torts. In such situation the question is why the State is exempted from liability when the officers who are linked with the State are made liable? For better understanding of this chapter, the following are some of the statutory provisions which protect the State from suits. These provisions protect the State for action taken in good faith. The following are protection clauses provided in various legislations exempt the State from liability.
1. THE INFORMATION TECHNOLOGY ACT, 2000 Section 34 of The Information Technology Act, 200040reads: No suit prosecution or legal proceeding shall lie against the Central Government, the Controller or any person acting on behalf of him, the presiding officer, adjudicating officers and staff of the Cyber Appellate 44Tribunal, for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or regulation or order made there under.
2. DRUGS AND COSMETICS ACT, 1940:
Section 37 of Drugs and Cosmetics Act, 1940,41 reads as “No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done under this Act”.
3. CHIT FUNDS ACT, 1982 Section 88 of Chit Funds Act, 1982 (Act 23 of 1940) reads as “No suit, prosecution or other legal proceeding shall lie against the State Government, the Registrar or other officers of the State Government, of the Reserve Bank or any of its officers exercising any powers or discharging any functions under this Act in respect of anything which is in good faith done or intended to be done in pursuance of this Act or the rules made there under”.
4. CONSUMER PROTECTION ACT, 1986 Section 28 of Consumer Protection Act, 1986 (Act 68 of 1986) provides: No suit, prosecution or other legal proceeding shall lie against the members of the District Forum, or the State Commission or the National Commission or any officer or person acting under the direction of the District Forum, the State Commission or the National Commission or executing any order made by it or in respect of anything which is in good faith done or intended to be done by such member, officer or person under this Act or under any rule or order made there under.
45 of 116 Created On Sat Aug 05 01:41:42 IST 2017
5. INSURANCE (REGULATORY AND DEVELOPMENT AUTHORITY) ACT, 1999 Section 22, of Insurance (Regulation and Development) Act, 1999 (Act 41 of 1991) reads as “No suit, prosecution or other legal proceedings shall lie against the Central Government or any officer of the Central Government or any member, officer or other employee of the authority for any act which is in good faith done or intended to be done under this Act or rules or regulations made there under”.
6. NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 Section 69 of Narcotic Drugs and Psychotropic Substances Act, 1985 (Act 61 of 1985) provides as “No suit, prosecution or other legal proceeding shall lie against the Central Government or the State Government or any officer of the Central Government or of the State Government any person exercising any powers or discharging any functions or performing any duties under this Act, for anything in good faith done or intended to be done under this Act or any rule or order made there under.”
7. PROTECTION OF HUMAN RIGHTS ACT, 1993 Section 38 of Protection of Human Rights Act, 199346 provides that “No suit or other legal proceedings shall lie against the Central Government, the State Government or any member thereof or any person acting under the direction either of the Central Government, the State Government, the commission or the State Commission, in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules or any order made there under or in respect of the publication, by or under the authority of the Central 46Government, the State Government, the Commission or the State Commission, of any report, paper or proceedings”.
8. CIVIL PROCEDURE CODE, 1908 Section 80 of Civil Procedure Code, 1908 (Act 5 of 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.
Section 82 of the Code of Civil Procedure, 1908, when a decree is passed against the Union of India or a State, it shall not be executed unless it remains unsatisfied for a period of three months from the date of such decree.
Article 112 of the Limitation Act, 1963, any suit by or on behalf of the Central Government or any State Government can be instituted within the period of 30 years.
9. MONOPOLIES AND RESTRICTIVE TRADE PRACTICES ACT 1969 Section 3 of Monopolies and Restrictive Trade Practices Act 196948 says that the Act shall not apply in certain cases unless the Central Government [by notification], otherwise directs, this Act shall not apply to.
(a) Any undertaking owned or controlled by a Government company,
(b) Any undertaking owned or controlled by the Government,
(c) Any undertaking owned or controlled by a corporation (not being a company) established by or under any Central Provincial or State Act,
(d) Any trade union or other association of workmen or employees 47formed for their own reasonable protection as such workmen or employees,
(e) Any undertaking engaged in an industry , the management of which has been taken over by any person or body of persons in pursuance of any authorization made by the Central Government under any law for the time being in force,
(f) Any undertaking owned by a cooperative society formed and registered under any Central, Provincial or State Act relating to co operative societies,
(g) Any financial institution.
a) The Act is not applicable in the following situations: The undertaking owned or controlled by the Government or Government companies, as the case may be and which are engaged in the production of arms and ammunition and allied items of defense equipment, defense aircraft and warships, atomic energy, minerals specified in the Schedule to the Atomic Energy (Control of Production and Use) Order, 1953 and industrial units under the Currency and Coinage Division, Ministry of Finance, Government of India.
b) Any restrictive or unfair trade practice expressly authorized by any law for the time being in force.
c) A restrictive trade practice flowing from an agreement which has the approval of the central government or if central government is a party to such agreement.
In addition to the above, any monopolistic trade practice which 48was expressly authorized by any enactment for the time being in force or when it is necessary to
1. Meet the defense requirement of the country,
2. ensure maintenance of supply of essential goods and services, or
3. Give effect to any agreement to which Central Government is a party was also exempted from the purview of the Act.
10. THE COMPETITION ACT 2002 Section 2(h) of The Competition Act 2002 (Act 12 of 2003) provides an exemption for activities of the government relatable to the sovereign functions of the State. Section 54 of the Act, empowers the Central Government to exempt the application of any provision of the Act to an enterprise performing a sovereign function on behalf of the Central or State Government, through a notification. Thus, one problem with the wordings of these two sections taken together is the confusion as to whether an enterprise carrying out an activity relatable to sovereign functions requires an express notification by the Central Government by virtue of Section 54 for exemption; or would anyway be excluded from the scope of an „enterprise? under section 2(h).
Although what a “Sovereign function? is has never been elucidated by the Commission or Courts in the context of competition law, interpretation of the term has been carried out for other legislations. It has been extensively discussed in the context of understanding, the scope of the term other authorities’ under the definition of State? under Article 12 of the Constitution, which include bodies that are agencies and instrumentalities of the State.
11. NATIONAL SECURITY ACT 198049Section 16 of National Security Act 1980 (Act 65 of 1980) provides protection of action taken in good faith. No suit or other legal proceeding shall lie against Central Government, or a State Government, and no suit, prosecution or other legal proceeding shall be against any person, for anything in good faith done or intended to be done in pursuance of this Act It is evident that the immunity of the Crown in the United Kingdom was based on the feudalistic notions of justice, namely the King can do no wrong. One should understand the position of the king as an administrator and what are the powers which are considered as sovereign powers? India as a welfare country, having its constitutional law approves immunity to the government unlike various legislations. However the Indian Governmental functions carried out by its servants cannot be left free for their wrong doings. To bring a balance in administration and to achieve the goals of the Indian Constitution, the State is protected from liability for its sovereign activities. The Competition Act 2002, also brings a distinction of governmental functions into sovereign functions and non sovereign functions. The sovereign functions as specified in this Act are functions carried out by the departments of Central Government dealing with atomic energy, space, defense and currency which are excluded from the purview of this Act. On the question of „what is sovereign function?, different opinions have been given time to time and again and attempts have been made to explain it in different ways:
? VARIOUS TESTS TO IDENTIFY THE NATURE OF FUNCTIONS OF THE STATE:
37 (1) Primary and Inalienable Functions:
HC-NIC Page 50 of 116 Created On Sat Aug 05 01:41:42 IST 2017
Krishna Iyer J, in Bangalore Water Supply and Seweragre board v. A. Rajappa [AIR (1978) SCC 548] said that the definition of “industry? although of wide amplitude can be restricted to take out of its purview certain sovereign functions of the State, limited to its “inalienable functions?.
As to what are inalienable functions?, Lord Watson, in Coomber v. Justices of Berks [(188384) 9 App. Cas. 61, 74] describes the functions such as administration of justice, maintenance of order and repression of crime, as among the primary and inalienable functions of a constitutional Government.
However, the Supreme Court has also held that the definition can include the regal primary and inalienable functions of the State, though the statutory delegated functions to a Corporation and the ambit of such functions cannot be extended so as to include the activities of a modern State and must be confined to legislative power, administration of law and judicial powers.53 37 (2) Regal & NonRegal Functions Isaacs, J. in his dissenting judgment in The Federated State School Teachers Association of Australia v. The State of Victoria [(1929) 41 CLR 569] concisely States “Regal functions are inescapable and inalienable. Such are the legislative power, the administration of laws, the exercise of the judicial power. Nonregal functions may be assumed by means of the legislative power. But when they are assumed the State acts simply as a huge corporation, with its legislation as the charter. Its action under the legislation, so far as it is not regal execution of the law is merely analogous to what a private company is similarly 51authorized.55 These words clearly mark out the ambit of the regal functions which are distinguished from the other powers of a State.
37 (3) Governmental Functions What is meant by the use of the term “sovereign”, in relation to the activities of the State, is more accurately brought out by using the term “Governmental” functions although there are difficulties here also in as much as the Government has entered largely new fields of industry. Therefore, only those services which are governed by separate rules and constitutional provisions, such as Articles 310 and 311 should, strictly speaking be excluded from the sphere of industry by necessary implication.56 37 (4) Constitutional Functions:
The learned judges in the Bangalore Water Supply & Severage Board v. A. Rajappa [AIR 1978 SC 48] a Sewerage Board case seem to have confined only such sovereign function outside the purview of „industry? which can be termed strictly as constitutional functions of the three wings of the State I.e. executive, legislature and judiciary. However, the concept is still the same with insubstantial differences between the terms. This can be noticed by the following observation by the Court in Nagendra Rao and Co. v. The State of Andhra Pradesh [AIR 1994 SC 2663] as to which function could be, and should be, taken as regal or sovereign function. It has been recently examined by the Bench of the Court, where in the words of Hansaria. J, the old and archaic concept of sovereignty does not survive as sovereignty now vests in the people. It is because of this, that in an Australian case, the distinction between sovereign and nonsovereign functions was 52categorized as regal and nonregal. In some cases, the expression used is State function, whereas in some Governmental functions.
37 (5) Nature and form of activity “It is now increasingly necessary to abandon the lingering fiction of a legally indivisible State and of a feudal conception of the crown, and to substitute for it the principle of legal liability where the State either directly or through incorporated public authorities, engages in activities of a commercial, industrial or managerial character. The proper test is not an impracticable distinction between governmental and non governmental function, but the nature and form of the activity in question”. [Ghaziabad Development Authority vs. Balbir Singh, AIR 2005 SC 1206].
37 (6) The dominant nature test
(a) Where a complex of activities, some of which qualify for exemption, others not, involves employees on the total undertaking, or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur v. Its Employees [AIR 1960 SC 675] will be the true test. The whole undertaking will be “industry? although those who are not “workmen? by definition may not be benefited by the statutes.
(b) Sovereign functions, strictly understood, (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by government or statutory bodies.
(c) Even in departments discharging sovereign functions, if their 53core units which are industries and they are substantially severable, then they can be considered to come within section 2(j) the definition of “industry?.
(d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby.
As per the Bangalore WaterSupply case, sovereign functions “strictly understood” alone qualify for exemption; and not the welfare activities or economic adventures undertaken by the Government. A rider has been added that even in the department discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to be an industry. As to which activities of the Government could be called sovereign functions strictly understood, had not been spelt out in the aforesaid case.
In relation to what are “sovereign” and what are “nonsovereign” functions, this Court in the Chief Conservator of Forests and Anr. v. Jagannath Maruti Kandhare and Ors. [(1996) 1 LLJ 1223 (SC)] holds; “We may not go by the labels, Let us reach the hub. And the same is that the dichotomy of sovereign and nonsovereign functions does not really exist it would all depend on the nature of the power and manner of its exercise.”
As per the decision in this case, one of the tests to determine whether the executive function is sovereign in nature is to find out whether the State is answerable for such action in Courts of law. It was stated by Sahai, J. that acts like defense of the country, raising armed 54forces and maintaining it, making peace of war, foreign affairs, power to acquire and retain territory are functions which are indicative of external sovereignty and are political in nature. They are, therefore, not amenable to the jurisdiction of ordinary civil Court in as much as the State is immune from being sued in such matters. But then according to this decision the immunity ends there. It was then observed that in a welfare State, functions of the State are not only the defense of the country or administration of justice or maintaining law and order but extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even martial. Because of this the demarcating line between sovereign and nonsovereign powers has largely disappeared. The aforesaid observation shows that, if we were to extent the concept of sovereign function to include all welfare activities the ratio in Bangalore Water Supply case would get eroded, and substantially we would demur to do so on the face of what was Stated in the aforesaid case according to which except the strictly understood sovereign functions, welfare activities of the State would come within the purview of the definition of industry; and not only this, even within the wider circle of sovereign function, there may be an inner circle encompassing some units which could be considered as industry if substantially severable.
37 (7) Predominant Nature of the Activity As referred in part (a) of the Dominant Nature Test, the Court in the Corporation of Nagpur case,63 evolved another test when there may be cases where the said departments may not be in charge of a particular activity or service covered by the definition of sovereign function but also in charge of other activity or activities falling outside the definition. In such cases, a working rule may be evolved to advance social justice 55consistent with the principles of equity. In such cases, the solution to the problem depends upon the answer to the question whether such a department is primarily and predominantly concerned with activity relatable to the sovereign function or incidentally connected therewith.
It was also held in the same case that in a modern State the sovereign power extends to all the statutory functions of the State except to the business of trading the industrial transactions undertaken by its quasiprivate personality.
Also, the regal functions described as primary and inalienable functions of the State though statutorily delegated to a corporation are necessarily excluded from the purview of the definition. Such regal functions shall be confined to legislative power, administration of law and judicial power.
In N. Nagendra Rao & Co. v. State of A.P. [AIR 1994 SC 2663] defines nonsovereign functions as “discharge of public duties under a Statute, which are incidental or ancillary and not primary or inalienable function of the State”. This decision holds that the State is immune only in cases where its officers perform primary or inalienable functions such as defense of the country administration of justice, maintenance of law and order.
The Court gave an example where a search or seizure affected under such law could be taken to be an exercise of power which may be in domain of inalienable function. Whether the authority to which this power is delegated is liable for negligence in discharge of duties while performing such functions is a different matter. But when similar powers are conferred under other Statute as incidental or ancillary power to carry out the purpose and objective of the Act, then it being an exercise of such State function which is not primary or inalienable, an officer acting negligently is liable personally and the State vicariously.
56[Agricultural Produce Market Committee vs. Shri Ashok Harikuni & Another, etc., AIR 2000 SC 3116].
In fact, all governmental function cannot be construed as either primary or inalienable sovereign function. Hence even if some of the functionaries under the Act could be said to be performing sovereign functions of the Government that by itself would not make the dominant object of the Act to be sovereign in nature. Various decisions rendered by the Supreme Court prior to and after the decision in Bangalore Water Supply v. A. Rajappa [(1978) 2 SCC 213], had been discussed by the Supreme Court in the case of State of U.P. v. Jai Bir Singh [(2005) 5 SCC 1] where the Court inter alia wished to enter a caveat on confining sovereign functions to the traditional functions, described as “inalienable functions” comparable to those performed by a monarch, a ruler of a nondemocratic government. The concept of sovereignty is confined to “law and order”, “defense”, “law making? and “justice dispensation”. In a democracy governed by the Constitution the sovereignty vests in the people and the State is obliged to discharge its constitutional obligations contained in the Directive Principles of the State Policy in PartIV of the Constitution of India. From that point of view, wherever the government undertakes the public welfare activities in discharge of its Constitutional obligations, as provided in PartIV of the Constitution, such activities should be treated as activities in discharge of sovereign functions. Therefore, such welfare governmental activities cannot be brought within the fold of industrial law by giving an undue expansive and wide meaning to the words used in the definition of industry regarding immunity to sovereign powers.
? IMMUNITY OF STATE UNDER THE DOCTRINE OF “ACT OF
HC-NIC Page 57 of 116 Created On Sat Aug 05 01:41:42 IST 2017
38 There is no doubt that no action may be brought either against the
crown or any one else in respect of an act of State [W.V.H. Rogers, Winfield and Jolowicz on Tort, 702 (14 Edn Sweet & Maxwell, 1994]. An act of State, under the English law is an act of the executive as a matter of policy performed in the course of its relations with another State or during its relations with the subjects of that State, unless they are temporarily within the allegiance of the Crown [Wade and Bradlye, Constitutional Law, 265 (Edn., 1971]. In the words of Hartley and Griffith [Hartley and Griffith, Government and Law 287 (1976)], the term means an act of such character that the Courts have no jurisdiction to determine its lawfulness. Thus it is an act of a sovereign against another sovereign or an alien outside its territory. An act of State derives its authority not from municipal law but from ultralegal or supralegal means [M.P. Jain and S.N. Jain, Principles of Administrative Law, 816 (Edn., 2007)]. Municipal Courts have no power to examine the propriety or legality of an act of State. The term is defined by various writers, [A History of the Criminal Law of England (1883) Edn.) Vol. 2 p.p. 6162], Lord Atkin in Eshughay v. The Government of Nigeria defined the term as:
“An act of the sovereign power directed against another sovereign power not owing temporary allegiance in pursuance of sovereign rights of waging war or maintaining peace on the high seas or abroad, may give rise to no legal remedy. But as applied to acts of the executive directed to subjects within those territorial jurisdictions it has no special meaning, and can give no immunity from the jurisdiction of the Court to inquire the legality of the act”.
A nation is sovereign within its own borders, and its domestic actions may not be questioned in the Courts of another nation. The 58object of the act of State doctrine is to protect the Executive?s prerogatives in foreign affairs. The act of State doctrine is applied for the act of a governmental body or of a body having governmental powers and must be carried out in the exercise of such governmental or sovereign powers and the act in question must be a formal act or evidenced by formal action such as legislation or an executive order.
a) Act of State and Sovereign Immunity The Act of State doctrine differs from sovereign immunity doctrine. The Act of State doctrine provides sovereign States with a substantive defense on the merits. But a claim of sovereign immunity, which merely raises a jurisdictional defense. The Courts of one State will not question the validity of public acts performed by other sovereigns within their own borders, even when such Courts have jurisdiction over a controversy of in which one of the litigants had stood to challenge those acts. But this is not so in sovereign immunity. Act of State does not deal with the subjects of the State but deals with foreigners who cannot seek the protection of the municipal law. It is a sovereign act of the government performed in exercise of its executive prerogative sanction for which is derived from sovereignty of the State [Union of India vs. Ram Kamal, AIR 1953 Assam 116]. Thus the act of State doctrine operates extra territorially and it is difficult to conserve of an act of State as between a sovereign and his subjects [P.V. Rao vs. Kushaldas Adwani, AIR 1949 Bom. 277 at 279].
b) History and Development The Act of State doctrine was initially developed in US in cases against officials or agents of foreign government and applied as a corollary to the personal immunity of foreign sovereigns. In Underhill v.
59Hernandez [168 US 250 (1897)], the Supreme Court of United State of America held that a citizen of the United States was not entitled to recover damages in a United States Court from a Venezuelan military General who refused to issue a passport to him because the acts of General were held to be acts of the Venezuelan government.
In France and in some continental countries under “Act of State” doctrine, officers acting in their official capacity are not cognizable by the ordinary Courts, nor are they subject to the ordinary laws of the land.
c) Essentials of “Act of State”
The essence of an “Act of State? in the exercise of sovereign power exercised arbitrarily on principles either outside or paramount to the municipal law [Saurashtra v. Menon Haji Ismail, AIR 1959 SC 1383]. If a transaction takes place in one jurisdiction and the forum is in another, the Court merely declines to adjudicate or makes applicable its own law to parties or property before it. The refusal of one country to enforce the penal laws of another is a typical example of an instance when the Court will not entertain a cause of action arising in another jurisdiction. The United States Supreme Court in Banco Nacional De Cuba v. Sebbatino [398 U.S. (1964)], Cuba nationalized its sugar industry, taking control of sugar refineries and other companies in the wake of the Cuban revolution. The case involved a claim by Cuba for the price of a cargo of sugar which had been expropriated by the Cuban government, and then sold to a U.S. commodity broker (Farr, whitlock &Co.). In addition to the Cuban claim, Farr was faced with a claim from the receivers of original owner (Sebbatino) who argued that the Cuban expropriation was contrary to international law. Both the District Court and the Court of Appeals, found in favour Sebbatino, holding that the 60Act of State doctrine was in applicable where the relevant foreign act was in violation of international law. However, the Supreme Court reversed this decision. Justice Harlan applied the Act of State doctrine and held that US Courts could not question the validity of the Cuban expropriations even if the plaintiff alleged a violation of international law.
The Supreme Court of United States [W.S. Kirk Patrick & Co. v. Environmental Tectonics Crop. Int’l, 493 (U.S. 1990)] held that the Act of State doctrine applies only when a US Court must declare such official act “invalid, and thus ineffective as a rule of decision for the Courts of this country”.
In Secretary of State v. Hari Bhanji [(1882) ILR 5 mad. 273], the plaintiff had sued for the return of a certain sum of money alleged to have been illegally seized from him as import duty on salt. The Madras High Court did not follow Nobin Chunder Dey v. Secretary of State [(1876) ILR 1 Cal. 12] and held that the act of State of which the municipal Courts in British India were debarred from taking cognizance were acts done in the exercise of sovereign powers which were not justified by municipal law. In India, actions which are purportedly taken under municipal law are denied the status of act of State if the private party only seeks to set aside the action [Bombay v. Khushaldes, Adveni, AIR (1950) SC 222 at 249]. But if he claims damages in tort the Courts generally examine whether the power exercised was sovereign in nature, and denies relief if it is found in the affirmative [Kasturilal vs. Uttar Pradesh, AIR (1965) SC 1039; Thangarajan v. Union of India, AIR (1975) Mad 32]. Even though the distinction between sovereign and non sovereign functions was doubted83, the view has never been overruled. The present tendency is to minimize the use of the distinction and to award damages.
61It follows that to raise a defense of „act of State? three conditions must be fulfilled. The first is that the act must be authorized or subsequently ratified by the government. The second is that act must be committed outside the territory of India, and the third is that the plaintiff must be an alien. Another important thing to remember is, in speaking of the exercise of sovereign power a clear distinction must be made between exercise of power in relation to foreign States, their subjects not within the allegiance, and action under municipal law in relation to subjects [H.M. Seevai, Constitutional Law of India, (1984) p. 1792].
d) Instances of “Act of State”
(a) During War During war the acts of a sovereign State affecting alien are not cognizable by municipal Courts. In Secretary of State for India v. Kamachee Boye [(1859) VII M.I.A. 476], the facts were that on the death of Raja Shivaji of Tanjore, the East India Company seized the public and private properties of the deceased Raja. The seizure was made on the ground that the dignity of the Raja was extinct for want of a male heir, and that the property of the late Raja lapsed to the British Government. The widow claimed it as the legal heir of the deceased Raja. The claim was accepted by the Supreme Court of Madras. But, on appeal the Privy Council reversed and it was held that the seizure made by the company on the death of last male Raja was an act of State, which could not be questioned before a municipal Court. The transactions of independent States are governed by laws other than those which municipal Courts administer. In this regard “Lord Kings down observed”:
62″Of the propriety or justice of that act, neither the Court below nor the Judicial Committee has the means of forming, or the right of expressing, if they had formed, any opinion. It may have been just or unjust, politic or impolitic, beneficial or injurious taken as a whole to those whose interests are affected. It is sufficient to say that, even if a wrong has been done, it is a wrong for which no Municipal Court of justice can afford a remedy.”
A further question is whether a State is bound to indemnify citizens for the damage sustained during actual hostilities? The issue was examined by the House of Lords in Burmah Oil Co. v. Lord Advocate [(1965) AC 75]. The facts of this case if that the installations as well as the petrol were destroyed, to prevent its falling into the hands of the advancing Japanese army. It was clear that, the destruction was carried out on the orders of the Crown in the lawful exercise of its prerogative power to provide for the defense of British territory. The question that fell for decision by the House of Lords was whether the Crown must pay compensation. The House of Lords held that if property of the subject was damaged by the State during actual hostilities, no compensation need be given. The plaintiffs had claimed the full value of the property destroyed, which might have amounted to more than £30,000,000. In that case, Lord Reid pointed out that the appellants appear to be claiming the full value of these installations in time of peace. I am holding that they are entitled to compensation and it will be necessary to consider whether compensation must not be related to their loss, in the sense of what difference it would have made to them if their installations had been allowed to fall into the hands of the enemy instead of being destroyed. Lord Pearce also dealt with the point thus “There may, however, well be a distinction in terms of compensation. Petrol which is 63taken and used may be worth its full value. Petrol which is blown up when it is about to pass into the hands of an enemy, who will undoubtedly consume it without paying the owner, may be valueless. That matter has not been argued and is not yet relevant”.
Lord Radcliffe, dissented and held that the State should not be asked to pay a requisition price for something for which there was at the time no conceivable purchaser.
Thus the common law rule is that seizure or destruction of private property within the realm under prerogative power, even during grave national emergency, if not during actual hostilities could be done only on the footing that compensation was payable. The decision was immediately nullified by the War Damages Act, 1965, which prevented the payment of compensation in such or similar circumstances. The Assam High Court in Union of India v. Ramkamal [AIR (1953) Ass. 116] examined this aspect. The respondent was a lessee of certain fisheries. He had constructed fishnurseries with auxillary installations. In the year 1944, a party of Indian and British soldiers occupied the western half of the northern and the western banks of the fisheries. During this period serious damage was caused to the fishery. The trial Court decreed the suit and awarded damages of Rs.77.000/ with proportionate costs against the Union of India. On appeal, the Assam High Court held that acts in the exercise of sovereign power of the State in time of war, insurrection, rebellion or any other emergency of a like character, affecting the person or the property of the subjects should also enjoy immunity. However, it was held that the State should satisfy the Court as to the necessity and reasonableness of the action before it could claim recognition of immunity. It means that the necessity and the reasonableness of the sovereign act are subject to judicial scrutiny. In the instant case, no evidence was produced on behalf of the State to prove 64the gravity of the emergency justifying the occupation without recourse to the provisions of the municipal law contained in the Defense of India Act. Occupation by the troops in such circumstances amounted to an act of trespass.
Thus Union of India was held liable to compensate the plaintiff respondent, Ram Labhaya C.J. Observed: “Indian decisions do not support the contention that the expression “act of State” refers only to acts against foreigners or foreign States. The expression has been used in relations to all acts of the sovereign authority whether they operated extraterritorially or whether they were acts between the State and its own subjects. No distinction has been made between acts of the sovereign authority affecting foreign States or foreigners and those affect the citizens of the State.
The division of sovereignty into two compartments which has taken place in England for purpose of convenience has not been adopted in India. The difficulty in adopting this division was probably historical”.
It seems that the law in India is also similar to that available in England. The learned Chief Justice had evolved the test of necessity and reasonableness of the action for claiming immunity. Though it is impossible for a Court of law to access the necessity and reasonableness of a military action, the test in practice means that if done during actual hostilities the State may claim immunity.
b. International Treaties An act of State includes signing of treaties. It can only be done by a sovereign and not by a private person. In State of Kerala v. Ravi Varma Raja Menon, [AIR 1964 Ker. 123], the Kerala High Court held 65that, the formation of United States of Travancore and Cochin was an act of State as it was the result of a covenant entered into by the rulers of Travancore, Cochin. Also in Nawab of Carnatic v. East India Company [4 Bro CC 198 (1793)] the suit brought by the Nawab, against the Company was dismissed on the ground that it was an act of State as it was a matter of political treaty between two sovereigns.
c. Annexation or Cession of Territories The rule that cession of territory or annexation of territory by a sovereign State is an act of State. In East India Company v. Syed Alley [(1827) VII, M.oo.Ind. App. 555(1829)], it was held that resumption by the Madras Government of a Jagir granted by former Nawabs, before the date of the treaty, and a regrant by the Madras Government to another for a life State only, was such an act of sovereign power by the East India Company. So the Supreme Court at Madras was precluded from taking cognizance of a suit by the heirs of the original grantee in respect of such resumption. In State of Saurashtra v. Memon Haji Ismail [AIR 1959 SC 1583], the Nawab of Junagadh had gifted certain property to the respondent. After the annexation of the State by the Indian Union, the Administrator resumed those properties and the grantee brought a suit against the State for the recovery of the price of those properties. The Supreme Court rejected the suit on the ground that the sovereign act of annexation could not be questioned before civil Courts.
When the princely States were merged into the Union of India, the inhabitants of those States have raised problems as to their rights. The question was how far the newly formed successor governments were bound by the rights enjoyed by the inhabitants under the former rulers. The law is that the prior rights will be recognized only if the successor 66government had recognized them. The rational of the rule has been explained in Nayak Vajesingji Joravarsingjai Naayk v. Secretary of State [AIR 1924 PC 216], where the Privy Council in consolidated appeals, the three Nayaks of Tanda, Chandwana and Katwada respectively sued the Indian Government for a declaration that they are proprietors of the whole land in the Talukas belonging to them and that they are not bound to accept a lease of the same in the terms offered to them by the Government in 1907. In this case, the Privy Council observed „when a territory is acquired by a sovereign State for the first time that is an “act of State”. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following a treaty, it may be by occupation of territory hitherto unoccupied by a recognized rule. In all cases, the result is the same. Any inhabitant of the territory can only make good in the municipal Courts established by the new sovereign, such rights as he had under the rules of predecessors will avail him nothing. Even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights that does not give a title to these inhabitants to enforce these stipulation in the Municipal Courts. The right to enforce remains only with the High Contracting Parties.
The above observation was followed by Lord Atkin in Secretary of State v. Sardar Rustam Khan [AIR 1941 PC 64] where it was held that as the Khan of Kalat had made over to the British State the whole of his sovereign rights and by the terms of the treaty as well as by virtue of Section 1 of Foreign Jurisdiction Act, 1890, the Government of India had full sovereign rights over the territory in question and had the right to recognize or not to recognize existing titles to land, the respondents could enforce no claim against the Government in the municipal Courts.
The Supreme Court followed the view in Dalmia Dadri Cement 67Company v. Income Tax Commissioner [AIR 1958 SC 816]. The Jind State was merged into Patiala and East Punjab States Union in 1948. While the new State was formed all the laws operating in former States were abrogated and the laws prevailing in the Patiala State were made applicable to all the merged States. It became a Part B State of the Indian Union and the Indian Income Tax Act was made applicable. The Company claimed exemption from the imposition of income tax relying on the exemption granted to it by the former ruler of Jind State. The Court rejected the contention holding that the rights granted by the former State could be enforced against the new State only if it accorded recognition to them either by an affirmative declaration or conduct.
In Premsukhdas v. Rajasthan [AIR 1967 SC 40], the former State of Bharatpur had allowed certain concessions of 25 per cent reduction from custom duties for those persons who purchased plots in a colony in Bharatpur to do business. The intention was to develop that area by encouraging people to settle there. On this condition the appellant purchased plot in that area. But when the Bharatpur State was merged in the State of Rajasthan, the latter State repudiated the concession and enacted uniform customs duties throughout the State. The appellant filed a suit for recovery of excess custom duties which he had been compelled to pay on account of disallowance of concessions given by the former State of Bharatpur. The Supreme Court rejected the claim on the ground that the contractual liability of a former State was binding on a succeeding sovereign State only if it recognized the contractual liability. In Pramod Chandra Deb v. Orissa [AIR 1962 SC 1288], the former ruler had given certain maintenance grants to the junior members of their families. The Supreme Court held that those grants could be enforced against the Government of India in so far as they were recognized by it. There were four such grants of which three had been 68recognized by the Government. The fourth grant had been annulled by an order issued under the Extra Provincial Jurisdiction Act, 1947 and that grant was held to be unenforceable. In Gwalior R.S. (W) Co. v. India [AIR 1960 MP 330] the Gwalior Maha Rajah, by his order dated 18.1.1947 had given exemption from income tax for a period of twelve years to Birla Brothers in the Gwalior State, when they set up new industries and factories there. In pursuance of the Order, the Gwalior State Government had entered into an agreement with the Birla Brothers subsequently the State was merged into Madhya Bharat. Income tax assessment proceedings were launched by the Madhya Bharat State and later by the Central Government. The company claimed exemption on the ground of the order of exemption and the subsequent agreement entered into with the State Government. The Madhya Bharat High Court, allowed the claim of exemption on the ground that an obligation was cast on the Gwalior Government to give exemption which in turn devolved on the Central Government under Act 205(1). The Indian Income Tax Act did not abrogate specific exemption already granted to the petitioner by special statutory provisions and virtually the Union Government and its predecessor Government had recognised the plaintiff?s claim.
In Virendra Singh v. State of U.P. [AIR 1954 SC 447], the Court took different view of the effect of conquest or cession on private rights. Here the ruler of Sarilla, granted village Rijura to the petitioner on January 5, 1948, and the ruler of Charkari and Sarilla, agreed to unite into the United State of Vindhya Pradesh. While this union was in existence, certain officials of the Government interfered with the rights of the petitioners but the Government of the United State of Vindhya Pradesh issued orders directing the officers to abstain from such interference. Subsequently, the territory was ceded to the Dominion of 69India, which thereafter constituted the area into a Chief Commissioner’s Province for the purpose of administration; but the four villages granted to the petitioner were detached from the centrally administered State and absorbed into the State of Uttar Pradesh. On August 29, 1952, the Governor of Uttar Pradesh revoked the grants made in favour of the petitioner. The Supreme Court rejected the plea of “act of State? holding there can be no “act of State” by a sovereign State as against its own subjects. In this case, it was held the plaintiff having become a citizen of India; he could enforce his property rights under Articles 19 and 31.
But, the decision of Virendra Singh was overruled by a bench of seven judges of Supreme Court in Gujarat v. Vora Fiddali [AIR 1964 SC 1043], the facts of the case were that the Ruler of the Sant State ceded the territory of his State to India by an agreement of merger on March 19, 1948. Later, it became a part of the Province of Bombay from August 1, 1949. A week before ceding the State territory to India, the ruler of Sant made a tharao by which holders of certain villages were given full rights and authority over the forests in the villages under the rules. Some of these holders executed contracts in favour of the plaintiffs between May 1948 and 1950. After merger the question arose whether those contracts should be approved or not. Considering that the tharao made by the ruler transferring the forest rights was malafide, the Government of Bombay cancelled the tharao on July, 1949. Before the High Court the plaintiffs succeeded on the ground that the agreement being law was protected by article 372 of the constitution and could not be abrogated by an executive act of the State Government. The Supreme Court by majority held that Virendra Singh was wrongly decided. The tharao was held to be not “law”. The Court also held that the integration of Indian States with the Dominion of India was act of State and the Central 70Government could refuse to recognize the rights created on the eve of merger by the tharao of the Ruler of Sant State and say that it was not acceptable to them and therefore not binding on them.
The rule was applied to termination of services of employees of former State by the Successor State. In Amarsingh v. Rajasthan [AIR 1958 SC 231], the appellant was a District and Sessions Judge in the former Bikaner State. The integration of the State of Bikaner into the new State of Rajasthan necessarily involved reorganization of the various services in the several integrating States. When the final reorganization was brought into force the appellant was appointed subsequently as Civil Judge. He was placed in Group C (Civil Judges and Munsiffs) and placed at No. 18 in the list of junior posts. His pay and emoluments were as before and he retained the same grading. His earned increments were not affected, and except for the change in name, his conditions of service were not worse than that in the service of the former State. In the writ petition, he contended that under the guarantee given by the United States of Rajasthan, he was entitled to be posted as a District and Sessions Judge in the new set up and that he had been reduced in rank in violation of Article 311. The Supreme Court held that no question of reduction in rank attracting Article 311 was involved because all his previous postings in the New State were purely temporary; and so far as Article XIV(1) of the Covenant was concerned its guarantee had been fulfilled [Followed in Cipriani v. Union of India, AIR 1969 Goa 76].
39 It is true that extreme cases are easy to recognise; such as acts of war or ‘hot pursuit’ of a foreign ship as example of sovereign functions on the one hand, and carriage of goods and passengers for reward or 71sale of commodities as examples of commercial activities on the other hand. In between these two extremes, innumerable examples can be cited where it will not be easy to draw any rational or clear distinction between sovereign acts (acts jure imperii) and commercial activities (acts jure gestionis). It is because of this difficulty and the inequity of exempting the State from private law obligations that it has been increasingly recognised in most jurisdictions that an unlimited claim of State immunity from legal proceedings has no theoretical or legal basis. That is the reason why the Crown Proceedings Act, 1947 drastically curtailed the operation of the doctrine of immunity in England.
40 The doctrine of absolute immunity never formed part of classical law. Neither Gortius [De Jure Belli ac Pacis (Carnegie edition, 1913)] nor Bynkershoek [Quaestiones Juris Publici (Carnegie edition, 1930)] nor Vattel [Droits des Gens, Book III Ch. 15] accepted the doctrine in its absolute form, [See the Judgment of Lord Reid in Burmah Oil Co. Ltd. v. Lord Advocate (1965) A.C. 75] Nor does it find acceptance in modern jurisprudence?. The doctrine is now confined to narrow regions, namely,
(a) the immunity of a foreign State from the jurisdiction of the local courts in regard to acts jure imperil (noncommercial activities of States in its sovereign capacity) as distinguished from acts jure gestionis (commercial activities of State); and (b) the immunity of a State from the jurisdiction of its own courts in regards to acts of state and matters arising from military operations. The principle of State immunity whether of the territorial state or of the foreign state is a survival of the period when the sovereign was considered to be above the law. This is no longer the position. [For a survey of legislation and judicial practice in common law and civil law countries, see Lauterpacht, op. Cit. See H.M. Seevai, Constitutional Law of India, 2nd Ed. Vol. II pp. 1137 1139, See also State of West Bengal v. Corporation of Calcutta (AIR 721967 SC 997)].
41 In the United Kingdom the principle of State immunity from the jurisdiction of the British Courts was founded on the doctrine of royal prerogative which in the words of Dicey [Law of the Constitution, 10th ed., p. 424. ?See War Damages Act, 1965, reversing in effect the decision of the House of Lords in Burmah Oil Co. Ltd. v. Lord Advocate (1965) A.C. 75, H.L. Sc.] is “The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the crown.” Prerogative in its absolute form is no longer recognised in that country except in matters arising from war in which the sovereign was or is engaged or from act of state. [See War Damages Act, 1965, reversing in effect the decision of the House of Lords in Burmah Oil Co. Ltd. v. Lord Advocate (1965) A.C. 75, H.L. Sc.] [The doctrine of act of state cannot be pleaded in a British Court as a defence against a citizen or a resident alien who is the subject of a friendly state, Nissan v. Attoreny General (1970) A.C. 179 (H.L.E.) and the various authorities cited therein.]. If property belonging to a citizen is taken or damaged or destroyed under orders of the crown, albeit in the exercise of the prerogative power, the owner of the property is entitled to be compensated unless such loss arose from war damage. [Burmah Oil Co. Ltd. v. Lord Advocate (1965) A.C. 75 (H.L.(Sc.) ), and War Damages Act, 1965.] Subject to such defence, the crown is no longer protected from claims for compensation for the act of its servant if such act was performed negligently or ultra vires the statute creating the powers under which it is purported to have been done. [Home Office v. Dorset Yacht Co. (1970) A.C. 1004 H.L. (E); See the judgments of Lord Reid and Lord Diplock.] 42 In a republican and democratic form of Government, as we have 73under our constitution, there is no justification for recognising the archaic theory of sovereign immunity which was founded on the feudalistic notions of justice in England. It is highly doubtful whether such doctrine had ever struck roots in the jurisprudence of our country, for, as pointed out by the Supreme Court in State of Rajasthan v. Mst.
Vidhyawathi (1962) Supp 2 SCR 989 : (AIR 1962 SC 933) . In India ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the Common Law immunity never operated in India.”
43 All powers vested in the State are derived from the Constitution or the relevant statute. Under the Constitution, there is no scope for immunity based on any prerogative or arbitrary right. Any such right is alien to our system. Ours is a Government of laws and not of men. Except where special provisions have been made under the Constitution (e.g. Article 361), or a reasonable classification is made under a statute, treating the State or certain individuals as a special class and conferring upon them special privileges and exemptions or immunities, against a citizen the State has no right to immunity. The State is not protected from liability for the tortious act of its servant which is either ultra vires the statute granting the powers under which he is purported to have acted or is a negligent exercise of such powers: Home Office v. Dorset Yacht Co. Ltd. (1970) A.C. 1004 H.L. (E); per Lord Blackburn in Geddis v. Proprietors of Bann Reservoir (1878) 3 A. C. 430, 456. In other words the state is vicariously liable to third parties in such circumstances as would render a private employer liable.
44 The concept of sovereignty is not a satisfactory test for deciding the questions of immunity. The sovereign exercise of power is not the dividing line between jurisdiction and immunity. As stated earlier, apart 74from the constitutional or statutory provisions granting certain immunities or exemptions or privileges to the State or its instrumentalities and with the exception of matters arising from war damage, the State, in relation to its citizens, has no immunity from liability or from the jurisdiction of its courts.
45 In the aforesaid context, I may refer to and rely upon a decision of the Supreme Court in the case of Agricultural Market Produce Committee vs. Ashok Harikuni and another [AIR 2000 SC 3116], wherein the Supreme Court has explained what are the sovereign and nonsovereign functions. The Supreme Court observed in paras 21, 22, 23, 31, 32 and 33 as under:
“21. In relation to what are “sovereign” and what are “nonsovereign” functions, this Court in Chief Conservator of Forests v. Jagannath Maruti Kondhare, (1996) 2 SCC 293 : (1996 AIR SCW 735 : AIR 1996 SC 2898 : 1996 Lab IC 967) holds (Paras 12 and 13) :
“We may not go by the labels. Let us reach the hub. And the same is that the dichotomy of sovereign and nonsovereign functions does not really exist it would all depend on the nature of the power and manner of its exercise, as observed in para 23 of Nagendra Rao case (1994 AIR SCW 3753 : AIR 1994 SC 2663). As per the decision in this case, one of the tests to determine whether the executive function is sovereign in nature is to find out whether the State is answerable for such action in Courts of law. It was stated by Sahai, J. that acts like defence of the country, raising armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are functions which are indicative of external sovereignty and are political in nature. They are, therefore, not amenable to the jurisdiction of ordinary civil Court inasmuch as the State is immune from being sued in such matters. But then, according to this decision the immunity ends there. It was then observed that in a welfare State, functions of the State are not only the defence of the country or administration of justice or maintaining law and order but extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even martial. Because of this the demarcating line between sovereign and nonsovereign powers has largely disappeard.
75The aforesaid shows that if we were to extend the concept of sovereign function to include all welfare activities as contended on behalf of the appellants, the ratio in Bangalore Water Supply case (AIR 1978 SC 548 : 1978 Lab IC 467) would get eroded, and substantially. We would demur to do so on the face of what was stated in the aforesaid case according to which except the strictly understood sovereign function. welfare activities of the State would come within the purview of the definition of industry; and, not only this, even within the wider circle of sovereign function, there may be an inner circle encompassing some units which could be considered as industry if substantially severable.”
22. In other words, it all depends on the nature of power and the manner of its exercise. What is approved to be “Sovereign” is defence of the country, raising armed forces, making peace or war, foreign affairs, power to acquire and retain territory. These are not amenable to the jurisdiction of ordinary civil Courts. The other functions of the State including welfare activity of State could not be construed as “sovereign” exercise of power. Hence, every governmental function need not be “sovereign”. State activities are multifarious. From the primal sovereign power, which exclusively inalienably could be exercised by the Sovereign alone, which is not subject to challenge in any civil Court to all the welfare activities, which would be undertaken by any private person. So merely one is employee of statutory bodies would not take it outside the Central Act. If that be then Section 2(a) of the Central Act read with Schedule I gives large number of statutory bodies should have been excluded, which is not. Even if a statute confers on any statutory body, any function which could be construed to be “sovereign” in nature would not mean every other functions under the same statute to be also sovereign. The Court should examine the statute to severe one from the other by comprehensively examining various provisions of that statute. In interpreting any statute to find it is “industry” or not we have to find its pith and substance. The Central Act is enacted to maintain harmony between employer and employee which brings peace and amity in its functioning. This peace and amity should be the objective in the functioning of all enterprises. This is to the benefit of both, employer and employee. Misuse of rights and obligations by either or stretching it beyond permissible limits have to be dealt with within the framework of the law but endeavor should not be in all circumstances to exclude any enterprise from its ambit. That is why Courts have been defining “industry” in the widest permissible limits and “sovereign” functioning within its limited orbit.
23. In N. Negendra Rao and Co. v. State of A. P., (1994) 6 SCC 205 : (1994 AIR SCW 3753 : AIR 1994 SC 2663), the question raised was about the liability of the State to pay compensation for the negligence or misfeasance on the part of its officers in discharge of their public duties under a statute, which are incidental or ancillary and not primary or 76inalienable function of the State. This decision holds that the State is immuned only in cases where its officers perform primary or inalienable functions such as defence of the country, administration of justice, maintenance of law and order. This Court held :
“A search or seizure effected under such law could be taken to be an exercise of power which may be in domain of inalienable function. Whether the authority to whom this power is delegated is liable for negligence in discharge of duties while performing such functions is a different matter. But when similar powers are conferred under other statute as incidental or ancillary power to carry out the purpose and objective of the Act, then it being an exercise of such State function which is not primary or inalienable, an officer acting negligently is liable personally and the State vicariously.
In the modern sense the distinction between sovereign or non sovereign power thus does not exist. It all depends on the nature of power and manner of its exercise. ……………. One of the tests to determine if the legislative or executive function is sovereign in nature is whether the State is answerable for such actions in Courts of law. For instance, acts such as defence of the country, raising armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are functions which are indicative of external sovereignty and are political in nature. Therefore, they are not amenable to jurisdiction of ordinary civil Court.”
“31. From the aforesaid catena of authorities, inalienability is one of the basic character of sovereignty. The Encyclopedia of the American Constitution with reference to “sovereignty” attempts to define sovereignty. It records :
“Within the American regime the ultimate power and authority to alter or a abolish the constitutions of Government of state and Union resides only and inalienably with the people. If it be necessary or useful to use the term “sovereignty” in the sense of ultimate political power, then there is no sovereign in America but the people.
DENNIS J. MAHONEY”
32. Words and Phrases, Permanent Edition, Volume 39A with reference to “sovereign power” records :
“The “sovereign powers” of a Government include all the powers necessary to accomplish its legitimate ends and purposes. Such powers must exist in all practical Governments. They are the 77incidents of sovereignty, of which a state cannot devest itself. Boggs v. Meree Min. Co., 14 Cal, 279, 309 …………. In all Governments of constitutional limitations “sovereign power” manifests itself in but three ways. By exercising the right of taxation; by the right of eminent domain; and through its police power. United States v. DouglasWillan Sartoris Co., 22 p. 92, 96, 3 Wyo. 287.”
33. So, sovereign function in the new sense may have very wide ramification but essentially sovereign functions are primary inalienable functions which only State could exercise. Thus, various functions of the State, may be ramifications of ‘sovereignty’ but they all cannot be construed as primary inalienable functions. Broadly it is taxation, eminent domain and police power which covers its field. It may cover its legislative functions, administration of law, eminent domain, maintenance of law and order, internal and external security, grant of pardon. So, the dichotomy between sovereign and nonsovereign function could be found by finding which of the functions of the State could be undertaken by any private person or body. The one which could be undertaken cannot be sovereign function. In a given case even in subject on which the State has the monopoly may also be nonsovereign in nature. Mere dealing in subject of monopoly of the State would not make any such enterprise sovereign in nature. Absence of profit making or mere quid pro would also not make such enterprise to be outside the ambit of “industry” as also in State of Bombay case (AIR 1960 SC 610) (supra).”
46 In India the doctrine of sovereign immunity found reference in certain decisions. In Kasturi Lal v. State of U.P. [AIR 1965 SC 1039], the Supreme Court held that the State is not liable if the wrongful act was committed by its employees “in exercise of delegated sovereign power”. The subsequent decisions of the Supreme Court have narrowed down the scope and sphere of sovereign immunity. The defence of sovereign immunity is not available when the State or its officers acting in the course of employment infringe a person’s fundamental right of life and personal liberty as guaranteed by Article 21 of the Constitution. The decisions commencing from Rudul Shah v. State of Bihar [AIR 1983 SC 1086], have greatly undermined and eroded the concept of sovereign immunity and have laid more emphasis on the principle that if a tortious act has been committed causing injury to any person he would be entitled to claim reasonable compensation from the State for the 78wrongful act done by its employees. It is by now well settled that the State is responsible for the tortious act of its employees. The compensation for violation of fundamental rights can be awarded in exercise of the writ jurisdiction by the Supreme Court and the High Court. The Civil Court can also award damages to a person aggrieved by wrongful act of the employees of the State. The maintenance of law and order and repression of crime are the traditional sovereign functions of the State and the doctrine of sovereign immunity must be confined to that sphere alone. In that field also the State can be held liable to pay compensation to its citizens if their fundamental rights have been violated and they suffered injuries on that account. The ideal of a welfare State is that it must take care of those who are unable to help themselves. The innocent victims must be provided succour and reasonable compensation. The society as a whole and the people in whom the real sovereignty vests are the insurers of such victims.
47 In N. Nagendra Rao v. State of Andhra Pradesh [AIR 1994 SC 2663], the Supreme Court has observed that in the modern sense the distinction between sovereign or nonsovereign power does not exist. No civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of State as a juristic person, propounded in Nineteenth Century as sound sociological basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with 79archaic State protection and place the State or the Government at par with any other juristic legal entity. Any watertight compartmentalization of the functions of the State as “sovereign and nonsovereign” or “governmental and nongovernmental” is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for sake of society and the people, the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State even though it was against law and negligently. Needs of the State, duty of its officials and right of the citizen are required to be reconciled so that the rule of law in a welfare State is not shaken. In the welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and nonsovereign powers for which no rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity. Maintenance of law and order or repression of crime may be inalienable function, for proper exercise of which the State may enact a law and may delegate its functions, the violation of which may not be sueable in torts, unless it trenches into and encroaches on the fundamental rights of life and liberty guaranteed by the Constitution. But that principle would not be attracted where similar powers are conferred on officers who exercise statutory powers which are otherwise than sovereign powers as understood in the modern sense. The suit for damages for negligence of officers of State in discharging statutory duty 80is maintainable, is also supported by Art. 300.
48 In Common Cause, a Registered Society v. Union of India [AIR 1999 SC 2979], a three Judge Bench of the Supreme Court affirmed the principle of law mentioned above.
49 In State of A. P. v. C. R. Reddy [AIR 2000 SC 2083], it has been observed that “the Maxim that King can do no wrong or that the Crown is not answerable in tort has no place in Indian jurisprudence, where the power vests, not in the Crown, but in the people who elect their representatives to run the Government, which has to act in accordance with the provisions of the Constitution and would be answerable to the people for any violation thereof”. It is observed that “the Fundamental Rights, which also include basic human rights, continue to be available to a prisoner and those rights cannot be defeated by pleading the old and archaic defence of immunity in respect of sovereign acts which has been rejected several times by this Court”. It is further stated : “in this process of judicial advancement, Kasturi Lal’s case (supra) has paled into insignificance and is no longer of any binding value”. The Supreme Court further proceeded to observe in paras 31 and 32 as under : “This Court, through a stream of cases, has already awarded compensation to the persons who suffered personal injuries at the hands of the officers of the Government including Police Officers and personnel for their tortious act. Though most of these cases were decided under Public law domain, it would not make any difference as in the instant case, two vital factors, namely, police negligence as also the SubInspector being in conspiracy are established as a fact.”
“Moreover, these decisions, as for example, Nilabti Behera v. State of Orissa, AIR 1993 SC 1960. In Re : Death of Sawinder Singh Grover, (1995) Supp (4) SCC 450 and D. K. Basu v. State of West Bengal, AIR 1997 SC 610, would indicate that so far as Fundamental Rights and human rights or human dignity are concerned, the law has marched ahead like a Pegasus but the Government attitude continues to be conservative and it tries to defend its action or the tortious action of its 81officers by raising the plea of immunity for sovereign acts or acts of State, which must fail.”
50 The Supreme Court in D.K.Basu v. State of West Bengal [AIR 1997 SC 610] has reiterated Smt. Nilabati Behera alias Lalita Behera (AIR 1993 SC 1960) as follows: “Till about two decades ago the liability of the Government for tortuous act of its public servants was generally limited and the person affected could enforce his right in tort by filing a civil suit and there again the defence of sovereign immunity was allowed to have its play. For the violation of the fundamental right to life or the basic human rights, however, this Court has taken the view that the defence of sovereign immunity is not available to the State for the tortuous acts of the public servants and for the established violation of the rights guaranteed by Article 21 of the Constitution of the India. In Nilabati Behera v. State (1993 AIR SCW 2366) (supra) the decision of this Court in Kasturi Lal Ralia Ram Jain v. State of U.P., (1965) 1 SCR 375 : (AIR 1965 SC 1039), wherein the plea of sovereign immunity had been upheld in a case of vicarious liability of the State for the tort committed by its employees was explained??..”
51 In State of Andhra Pradesh v. Challa Ramkrishna Reddy and others [AIR 2000 SC 2083], the Supreme Court has noticed N. Nagendra Rao and Co. v. State of A.P. AIR 1994 SC 2663 wherein immunity of the State for sovereign functions has been explained as follows: “But there the immunity ends. No civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of State as a juristic person, propounded in nineteenth century as sound sociological basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government at par 82with any other juristic legal entity. Any watertight compartmentalization of the functions of the State as `sovereign and nonsovereign’ or `governmental or nongovernmental’ is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for sake of society and the people the claim of a common man or ordinary citizen cannot be thrown but merely because it was done by an officer of the State even though it was against law and negligently. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a welfare State is not shaken. Even in America where this doctrine of sovereignty found its place either because of the `financial instability of the infant American States rather than to the stability of the doctrine theoretical foundation’, or because of `logical and practical ground’, or that `there could be no legal right as against the State which made the law gradually gave way to the movement from, `State irresponsibility to State responsibility’. In welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and nonsovereign powers for which no rational basis survives, has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity.”
The Supreme Court ultimately has held as follows: “This Court, through a stream of cases, has already awarded compensation to the persons who suffered personal injuries at the hands of the officers of the Government including police officers and personnel for their tortuous act. Though most of these cases were decided under public law domain, it would not make any difference as in the instant case, two vital factors, namely, police negligence as also the SubInspector being in conspiracy are established as a fact.
Moreover, these decisions, as far example, Nilabati Behera v. State of Orissa, (1993) 2 SCC 746: (1993) 2 SCR 581: AIR 1993 SC 1960: (1993 AIR SCW 2366): In Re: Death of Sawinder Singh Grover, (1995) Supp (4) SCC 450: (1992) 6 JT (SC) 271: 1992(3) Scale 34(2); and D.K. Basu v. State of West Bengal, (1997) 1 SCC 416: AIR 1997 SC 610: (1997 AIR SCW 233), would indicate that so far as fundamental rights and human rights or human dignity are concerned, the law has marched ahead like a Pegasus but the Government attitude continues to be conservative and it tries to defend its action or the tortuous 83action of its officers by raising the plea of immunity for sovereign acts or acts of State, which must fail.”
52 In State of Madhya Pradesh and another v. Smt. Shantibai and another [AIR 2005 MP 66] on the question whether the State Government is not liable to pay damages because of the doctrine of sovereign immunity, it has been held as follows: “…… In welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non overeign powers for which no rational basis survives, has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity. Maintenance of law and order or repression of crime may be inalienable function, for proper exercise of which the State may enact a law and may delegate its functions, the violation of which may not be sueable in torts, unless it trenches into and encroaches on the fundamental rights of life and liberty guaranteed by the Constitution. But that principle would not be attracted where similar powers are conferred on officers who exercise statutory powers which are otherwise than sovereign powers as understood in the modern sense. The suit for damages for negligence of officers of State in discharging statutory duty is maintainable, is also supported by Art.300.
In view of the above legal position, the plea of sovereign immunity is not available to the defendants in the present case. The plaintiffs sustained injuries at the hands of police officers even though unwittingly. They deserve some compensation from the State to repair the damage done to them. They were innocent victims. The judgment and decree of the trial court are unassailable.”
53 In the RFA No. 92 of 2001 with CrossObjection No. 93 of 2001, State of H.P. and another v. K.L. Malhotra and Ors. decided on 29th August 2008, the same firing dated 27th September 1990 in Mandi town was in question. In para 26 of the judgment, it has been held as follows:84″The police and the administration was negligent in opening firing, which killed Karan Malhotra. There was gross violation of Article 21 of the Constitution. The State has no right to take away the life of a citizen except by following due process of law. The servants of the State if take law in their own hands and violate Article 21 of the Constitution then State is liable for the acts of its servants and in that situation cannot seek protection by pleading sovereign immunity. The servants of the State are expected to deal with the public with care and caution. They should handle the mob tactfully and should resort to force after careful assessment, firing should be strictly in accordance with law and that too as a last resort. The servants of the State cannot be permitted to take law in their own hands under the shelter of sovereign immunity. In view of facts and circumstances of the present case, the police had killed Karan Malhotra son of respondents No. 1 and 2 without any provocation on the part of the deceased. It has not been proved on record that Karan Malhotra had indulged in any act which provoked the police to fire at him causing his death. In these circumstances, the appellants have failed to bring their case within the ambit of sovereign immunity, in fact no case for sovereign immunity has been made out by the State.”
54 Immunity of State for its sovereign acts is claimed on the basis of the old English Maxim that the King can do no wrong. But even in England, the law relating to immunity has undergone a change with the enactment of Crown Proceedings Act, 1947. Considering the effect of this Act, it is stated in Rattan Lal’s “Law of Torts” (23rd Edition) as under:
“The Act provides that the Crown shall be subject to all those liabilities in tort to which, if it were a person of full age and capacity, it would be subject (1) in respect of torts committed by its servants or agents, provided that the act or omission of the servant or agent would, apart from the Act, have given rise to a cause of action in tort against that servant or agent or against his estate; (2) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; (3) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property. Liability in tort also extends to breach by the Crown of a statutory duty. It is also no defence for the Crown that the tort was committed by its servants in the course of performing or purporting to perform functions entrusted to them by any rule of the common law or by statute. The law as to indemnity and contribution as between joint tort feasors shall be enforceable by or against the Crown and the Law Reform (Contributory Negligence) Act, 1945 binds the Crown. Although the 85Crown Proceedings Act preserves the immunity of the Sovereign in person and contains savings in respect of the Crown’s prerogative and statutory powers, the effect of the Act in other respects, speaking generally, is to abolish the immunity of the Crown in tort and to equate the Crown with a private citizen in matters of tortious liability.”
55 Thus, the Crown in England does not now enjoy absolute immunity and may be held vicariously liable for the tortious acts of its officers and servants.
56 The Maxim that King can do no wrong or that the Crown is not answerable in tort has no place in Indian jurisprudence where the power vests, not in the Crown, but in the people who elect their representatives to run the Government, which has to act in accordance with the provisions of the Constitution and would be answerable to the people for any violation thereof.
57 Right to Life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that Right.
58 I have to my advantage a very erudite and lucid judgment on the point in question delivered by a Division Bench of this Court in the case of State of Gujarat vs. Govindbhai Jakhubhai and another [AIR 1999 Gujarat 316]. In the said case, the plaintiff had undertaken work as a Contractor for the construction of Rajendranagar Dam. The respondent No.2 before this Court, who was the original defendant No.2, was working as a police constable at the Raigadh Outpost and was in the service of the appellant – State of Gujarat, who was the original defendant No.1. On 22nd April 1976, after the close of the work for the day, the plaintiff was proceeding to Himatnagar for purchasing a kingpin for his damaged truck and when he was passing by the Raigadh Police 86Outpost, situated on the highway, he came to know that the truck driver was carrying some of his labourers in his truck. He learnt that his truck driver was detained in the Outpost and was being manhandled. The plaintiff, therefore, went inside the Police Outpost and requested the constable, defendant No.2, to desist from beating the driver, asking him that he may take legal action as may be warranted, but should not take law into his own hands. The defendant No.2 – constable got annoyed and excited. He started abusing the plaintiff and gave him threats. He asked another policeman to bring his rifle from the adjoining room, and on getting the rifle, he continued his hostility towards the plaintiff and before the plaintiff could run away, he fired a shot at him, which hit the plaintiff on his right thigh above the kneecap. Despite treatment at the Civil Hospital, the wound did not heal and the plaintiff had to get his right leg amputated above the kneecap. The plaintiff filed a suit for damages on the premises that the act of the defendant No.2 was a tortious act for which the State was vicariously liable. The Trial Court on the basis of the evidence on record decreed the suit rejecting the defence that the State was not vicariously liable because the act was relatable to the sovereign powers of the State. The State of Gujarat, being dissatisfied with the decree passed by the Trial Court, preferred an appeal before this Court. Affirming the judgment and decree passed by the Trial Court and dismissing the First Appeal filed by the State of Gujarat, a Division Bench of this Court held as under:
“11.1. The security of man’s person is the most elementary of civil rights. Even a Constable would be liable in tort like any other citizen for any unlawful interference with the person or liberty of another in the same manner as a private citizen would be. Actual violence inflicted on a person results in deprivation of the basic right of life which is guaranteed as a fundamental right under Art. 21 of the Constitution. A direct application of physical force to a person of another, whether inflicted with any weapon or missile is battery, when it be done either intentionally or negligently.
Battery falls in the category of tort known as trespass to the person; the 87other two in that category being assault and false imprisonment. In an action of trespass to the person, once the trespass is admitted or proved, it would be for the defendant to justify the trespass, if he can, on the defences available to him under the law, such as, that the defendant was acting in defence of his person or property or using reasonable force in the prevention of crime or stopping a breach of peace or in effecting lawful arrest or using permissible force under the law.
11.2. The question that arises before us is when a person is deprived of his fundamental right to life or personal liberty, except according to the procedure established by law, by police and the wrong done is actionable, is the State responsible for such deprivation caused by a wrongful act committed by a member of the police force.
11.3. It is a rule of law that an employer, though guilty of no fault himself, is liable for the damage done by the fault or negligence of his servant acting in the course of his employment (Per Lord Reid in Staveley Iron and Chemical Co. v. Jones, (1956) AC 627 at 643. On the other hand, if it is established that master himself owed a duty to the plaintiff and that duty has been broken by the act of the servant, the master will be liable for his primary liability and not vicarious liability. In England, Crown immunity in tort was brought to an end by the Crown Proceedings Act, 1947, which by Section 2 subjected Crown to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject; in respect of torts submitted by its servants or agents; in respect of any breach of those duties which a person owes to his servant or agents at common law by reason of being their employer; and in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property. Thus, the Crown is made vicariously liable to third parties for torts committed by its servants in the course of their employment, if committed in circumstances which would render a private employer liable. It was also provided that the Crown was not to be liable, unless the act or omission in question would, apart from the Act, have given rise to a cause of action in tort against the servant or agent. This preserves such defences as acts of state and the exercise of statutory or prerogative powers but it does not protect the Crown from liability for the tortious act of its servant which is ultra vires the statute creating the powers under which the act is purported to be done, nor does it protect the Crown from the negligent exercise by its servant of such powers. (See Clerk and Lindsell on Torts, Fourteenth Edition, Paragraph 153 at page 87).
11.4. In England by Section 48 of the Police Act, 1944 the Chief Officer of the Police for any police area is made liable in respect of torts committed by constables in the like manner as a master is liable in respect of torts committed by his servants in the course of their employment.
88 of 116 Created On Sat Aug 05 01:41:42 IST 2017
12. Any police atrocity, be it custodial or otherwise, which results in death of or injury to a person is per se a violation of fundamental right guaranteed by Article 21 of the Constitution. The defence of sovereign immunity would in such cases be alien to the concept of guarantee of the fundamental right to life and personal liberty. Assault or battery, when committed by the Stateagency would be a violation of the fundamental right to life guaranteed by Article 21. The doctrine of sovereign immunity of the State would be subject to the constitutional mandate enjoining a duty on the State not to deprive any person of his life or personal liberty without following the procedure established by law. Causing injury or death by police excesses would be a clear violation of such right and such wrongful acts even if referable to the sovereign functions of the State of maintenance of law and order will not immune the State from its strict liability which arises due to the violation of the fundamental right to life and personal liberty. The State must in such cases adequately compensate for the wrong done irrespective of the fact that it was done by the employee during the course of employment, which is relatable to the sovereign functions of the State, such as maintenance of law and order.
13. Tort committed by a State employee resulting in violation of fundamental right would be an actionable wrong for which a remedy lies in Civil Court for damages to compensate the victim. The fact that a public law remedy lies under Articles 32 and 226 of the Constitution before the Superior Courts in respect of torts committed by police for which State is liable on the principle of strict liability when there is violation of the fundamental right to life under Article 21, would not take away the power of civil Court to grant relief of damages for violation of fundamental rights by the State agency by committing such tort. The ordinary civil Courts have jurisdiction in all matters of civil nature. As provided by Section 9 of the Code of Civil Procedure, the Courts shall, subject to the provisions contained in the Code, have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Violation of fundamental right to life by committing a tort would, therefore, constitute a valid cause of action to seek redressal in a civil Court. Such violation by tortious act of the police being an actionable wrong can be tried in a civil Court and a large portion of the population of the rural area of this vast country would find it more convenient to approach the civil Courts in their local area rather than to rush to the High Court or the Supreme Court for invoking their extraordinary writ powers. Suits for compensation against the State Government are not excluded from the jurisdiction of the civil Court. Therefore, in a suit for damages for a tort committed by an employee of the State, where the liability of the State arises, the civil Court has jurisdiction to pass a decree for damages against the State. In case of an establishment breach of fundamental rights, the liability of the State is a strict liability and no question of pleading a defence of sovereign functions can now arise in face of the Constitutional protection of the fundamental rights which enjoins a 89duty on the State not to violate them. Therefore, when the said defence is not available in context of the established breach of fundamental rights, the civil Court can award damages for such violation against the State for the tort committed by the police during the course of employment, even though the maintenance of law and order may be in the nature of sovereign functions of the State.
13.2. The Civil Court obviously has to determine whether the tort in question committed by the State employee violates the fundamental right of the person. When the plaintiff establishes that the police man has, during the course of his employment, caused physical harm such as battery, that by itself is sufficient proof of violation of fundamental right to life even if the expression ‘fundamental right’ is not used in respect of such harm. The fundamental rights are allpervasive and do not depend on whether they are so described. When physical harm is wrongfully caused by the State agency, it amounts to violation of the right to life and it does not require a label to become such violation. Therefore, mere nonmention of Article 21 in the pleadings will not defeat a claim where the facts proved clearly establish that the fundamental right to life is in fact violated. In other words, when a person pleads and proves that he was tortured, maimed or assaulted by the police wrongfully, that established fact itself means that the fundamental right of that person to life is violated and even if he had not added the surplusage to the effect: “therefore my fundamental right under Article 21 is violated”, it nonetheless remains a violation of his fundamental right under Article 21 and he cannot be non suited on the ground that there is no pleading or issue to that effect.
14. We gain support for our above conclusions from the decision of the Hon’ble Supreme Court in D. K. Basu v. State of W. B., reported in (1997) 1 SCC 416 : (AIR 1997 SC 610) in which the Supreme Court held that custodial violence, including torture and death in the lockups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. The protection of an individual from torture and abuse by the police and other lawenforcing officers is a matter of deep concern in a free society, observed the Supreme Court. The question before the Supreme Court was whether monetary compensation should be awarded for established infringement of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India. It was observed: “Whether it is physical assault or rape in police custody, the extent of trauma a person experiences is beyond the purview of law.” “Custodial torture” is held to be a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. It was held that the expression “life or personal liberty” in Article 21 includes the right to live with human dignity and thus it would 90also include within itself a guarantee against torture and assault by the State or its functionaries. The precious right guaranteed by Article 21 cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. It was observed that it cannot be said that a citizen ‘sheds off’ his fundamental right to life the moment a policeman arrests him. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21, whether it occurs during investigation, interrogation or otherwise. It was further observed that the interrogation and investigation into a crime should be in true sense purposeful to make the investigation effective. By torturing a person and using third degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. Referring to Kasturi Lal’s case (AIR 1965 SC 1039) (supra), the Supreme Court reiterated what it had said in Nilabati Behera v. State of Orissa, reported in (1993) 2 SCC 746 : (AIR 1993 SC 1960) reproducing the following observations which appeared at page 761 of the reports (at page 1967 of AIR) :
“In this context, it is sufficient to say that the decision of this Court in Kasturilal (AIR 1965 SC 1039) upholding the State’s plea of sovereign immunity for tortious acts of its servants is confined to the sphere of liability in tort, which is distinct from the State’s liability for contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the constitutional scheme, and is no defence to the constitutional remedy under Articles 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights, when the only practicable mode of enforcement of the fundamental rights can be the award of compensation. The decisions of this Court in Rudul Sah (AIR 1983 SC 1086) and others in that line relate to award of compensation for contravention of fundamental rights, in the constitutional remedy under Articles 32 and 226 of the Constitution. On the other hand, Kasturilal related to the value of goods seized and not returned to the owner due to the fault of Government servants, the claim being of damages for the tort of conversion under the ordinary process, and not a claim for compensation for violation of fundamental rights. Kasturilal is, therefore, inapplicable in this context and distinguishable.”
The Supreme Court then held that the claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. It was held :
91″Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved.”
It was further observed :
“The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the Courts too much, as the protector and custodian of the indefeasible rights of the citizens.”
The Court reiterated what was stated in Nilabati Behera’s case that it was not always enough to relegate the heirs of victim of custodial death to the ordinary remedy of a civil suit to claim damages, as that remedy in private law indeed is available to the aggrieved party. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy, as held by the Supreme Court in Nilabati Behera’s case (AIR 1993 SC 1960) (supra). We then would reproduce hereunder paragraph 54 of the judgment which in our view clearly lays down that the State is vicariously liable for the acts of its public servants which amount to an established infringement of the fundamental right to life and that the claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State of such award of compensation in public law jurisdiction is without prejudice to any other action, like civil suit for damages, which is lawfully available to the victim or the heirs of the deceasedvictim with respect to the same matter.
“54. Thus, to sum up, it is now a wellaccepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of 92compensation) must be left to the criminal Courts in which the offender is prosecuted, which the State, in law, is dutybound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceasedvictim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no straitjacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit .”
15. It is significant to note that the Supreme Court, in terms held that the amount of compensation as awarded by the Court in its public law jurisdiction and paid by the State to redress the wrong may in a given case be adjusted against any amount which may be awarded to the claimant by way of damages in civil suit. From the aforesaid holding of the Supreme Court in D. K. Basu’s case (AIR 1997 SC 610) (supra), we gain strength in stating that an action in respect of a tort committed by a public servant, which violates fundamental right to life, would lie in the civil Court and when the infringement of fundamental right to life is established, it will not be open for the State to claim sovereign immunity as a defence and the State would be vicariously liable for the tortious act committed by its functionaries which has resulted in such violation of fundamental right to life. The nature of liability that arises because of the violation of fundamental rights would, in our opinion, remain the same, irrespective of the forum from which the remedy is sought by the victim or the heirs of the deceasedvictim. It cannot be said that though for violation of the fundamental right to life by tortious acts of a State employee the superior Court may in its extraordinary powers award compensation, notwithstanding the availability of the alternative forum, that liability changes its colour when the remedy is sought in the civil Court. The remedy of compensation under Articles 32 and 226 of the Constitution is evolved as an additional and speedy remedy and would be over and above the remedy available, to claim damages for tortious act of a State servant violating fundamental right to life in a Court of ordinary civil jurisdiction.
The strict liability of the State for such violation can be enforced even in a civil Court when there is violation of fundamental right to life. Albeit when the victim approaches the civil Court, he will have to go through the rigmarole of the procedural laws and establish his case as regards the breach of fundamental right to life by leading appropriate evidence and 93will also have to establish his case as regards his claim for compensation for the wrong done. These detailed fetters do not operate, when the Supreme Court or the High Court exercises its extraordinary powers. But, nonetheless, as observed by the Supreme Court, there has to be an established breach of fundamental right to life by a wrongful act of the public servant to create a strict liability on the part of the State.
16. We must here refer to a decision of the Andhra Pradesh High Court in Challa Ramkonda Reddy v. State of A. P. by District Collector, Kurnool, reported in AIR 1989 AP 235, in which it was held that the theory of sovereign function does not clothe the State with the right to violate the fundamental right to life and liberty guaranteed by Art. 21 and no such exception can be read into it by reference to Art. 300 (1). It was held that where a citizen was deprived of his life or liberty, otherwise than in accordance with the procedure prescribed by law, it is no answer to say that the said deprivation was brought about while the officials of the State were acting in discharge of the sovereign functions of the State and suit for compensation against the State was, therefore, maintainable in such cases. It was observed that this was the only mode in which the right to life guaranteed by Art. 21 could be enforced. We respectfully agree with the ratio of that decision.
17. The facts which are established in the case clearly show that the respondent No. 2, during the course of his employment as a Constable, had on 2241976, when the respondent No. 1 had come to the Police Outpost, wrongfully and without any justification whatsoever, wounded him by a gunshot which resulted in amputation of his right leg. This tort, since it was committed by the State servant, amounted to violation of the fundamental right to life of the respondent No. 1 guaranteed by Art. 21, raising a strict liability on the part of the State which could be remedied by giving compensation in a civil Court, on the basis that the State is vicariously liable for such an act.”
59 In Bakshi Amrik Singh v. The Union of India (1974 ACJ 105) (FB), a Bench of five Judges of the High Court of Punjab and Haryana at length considered all the decisions on the question and ultimately laid down 11 tests :
“Though sovereign functions of a State have nowhere been exhaustively enumerated nor is there any authoritative definition of what constitutes the sovereign functions from a review of the ratio of the various authorities that have been noticed above, certain rules of guidance, which appear to be well settled emerge and they may be stated thus :
94 of 116 Created On Sat Aug 05 01:41:42 IST 2017
1. Under Article 300(1) of the Constitution of India, the Union of India and the states in our Republic have the same liability for being sued for torts committed by their employees as was that of the East India Company.
2. The nature and extent of this liability, as stated in P. and O. Steam Navigation Company’s case and authoritatively settled by their Lordships of the Supreme Court in Kasturi Lal’s case is that the Union of India and states are liable for damages occasioned by the negligence of servants in the service of the Government if the negligence is such as would render an ordinary employer liable.
3. That in view of the rule stated above Government is not liable if the tortious act complained of has been committed by its servant in exercise of its sovereign powers by which we mean powers that cannot be lawfully exercised except by sovereign or a person by virtue of delegation of sovereign rights.
4. The Government is vicariously liable for the tortious acts of its servants or agents which are not proved to have been committed in the exercise of its sovereign functions or in exercise of the sovereign powers delegated to such public servants.
5. The mere fact that the act complained of was committed by a public servant in course of his employment is not enough to absolve the Government of the liability for damages for injury caused by such act.
6. When the State pleads immunity against claim for damages resulting from injury caused by negligent act of its servants, the area of employment referable to sovereign powers must be strictly determined. Before such a plea is upheld, the Court must always find that the impugned act was committed in the course of an undertaking or an employment which is referable to the exercise of the delegated sovereign powers.
7. There is a real and marked distinction between the sovereign functions of the Government and those which are not sovereign and some of the functions that fall in the latter category are those connected with trade, commerce, business and industrial undertakings.
8. Where the employment in the course of which the tortious act is committed is such in which even a private individual can engage, it cannot be considered to be a sovereign act or an act committed in the course of delegated sovereign functions of the State.
9. The fact that the vehicle, which is involved in an accident, is owned by the Government and driven by its servant does not render the Government immune from liability for its rash and negligent driving. It must further be 95proved that at the time the accident occurred, the person driving the vehicle was acting in discharge of the sovereign function of the State, or such delegated authority.”
60 Although the maintenance of Army is a sovereign function of the Union of India, yet it does not follow that the Union is immune from all the liability for any tortious act committed by an army personnel. In determining whether the claim of immunity should or should not be allowed, the nature of the act, the transaction in the course of which it is committed, the nature of the employment of the person committing it and the occasion for it, have all to be considered.
61 The Old and archaic concept of Sovereign immunity that “King can do no wrong” still haunts us, where the state claim immunity for its tortious acts and denies compensation to the aggrieved party. Last but not the least it would be interesting to note that in Australia also this doctrine of sovereign immunity has been ignored as can be seen from the decision in Parker v. The Commonwealth of Australia [112 CLR 295 (Aus)] where two ships of the Royal Australian Navy, viz. Melbourne and Voyager, came into collision on the highseas about 20 miles off the Australian cost. Melbourne struck the Voyager and she sank along with some men therein resulting in the death of one Parker. His widow brought an action against the Commonwealth for damages on the basis that her husband’s death was caused by the negligence of the officers and crew of the ships of the Commonwealth. The deceased Parker was a civilian employed by the Navy Department in a technical capacity. In those facts and circumstances Windeyer, J., of the High Court of Australia held that the Commonwealth was liable in tort for damages and that the widow of Parker could bring in the suit for damages for the negligent acts or omission of the members of the Royal 96Australian Navy. The plea of defense based on the old and archaic concept of sovereignty immunity as borrowed from British jurisprudence prevalent during colonial rule is based on old feudalistic notions of justice namely the “King can do no wrong”. This common law immunity do not exist in the realm of welfare state and is against the modern jurisprudence where the distinction between sovereign or nonsovereign power does not exist and the state like any ordinary citizen is liable for the acts done by its employees as has been ruled by the Hon’ble Apex Court and various High Courts in its various judicial pronouncements.
62 No doubt, the maintenance of law and order by the Police is an exercise of sovereign and regal powers of the State and amounts to an act of state. The legal justification of firing by the Army personnel at the relevant point of time for controlling the riotous assembling is a question of fact to be established by evidence. Indisputably, the defendants have not led any evidence except filing of a written statement to show that the conduct of Army personnel concerned in firing was warranted by circumstances and diligently done. On the other hand, the evidence placed by the plaintiff discloses that the deceased had gone on the roof top of his neighbour’s house to collect the quilt, which was put for the purpose of drying. The deceased had not even the slightest of the idea that the Army would open fire all of a sudden and he would be hit by a bullet. According to the State’s contention, firing had to be resorted, as there was pelting of stones. It is not even the case of the defendants that the deceased was pelting the stones or was trying to create trouble in any manner. If the firing had to be resorted to disperse the unruly crowd, then there would be no possibility of bullet hitting the deceased who was actually inside the house.
63 I shall now discuss how the defendants have failed to prove the 97circumstances under which the firing took place, the mode and manner of firing by the Army personnel to successfully invoke the plea of act of State to avoid liability.
64 In the case on hand, the defendants did not deem fit to lead any oral evidence. All that was done was to file a written statement trying to justify the firing and the claim of sovereign immunity.
65 The plaint and the written statement are the “pleadings” of the parties and they stand on a different footing. The pleadings cannot take the place of proof according to the Evidence Act. If the pleadings are to be considered as evidence, then the efficacy of the Evidence Act and the burden of proving the facts pleaded would be lost. The aforesaid stands with the exception that after the plaint, if there is an admission in the written statement, then the Court may not insist for proof, but thereby, it cannot be said that the power of the Court for insistence of the proof does not exist on a mere admission, but such power leaves discretion upon the Court to act on admissions. Order VI Rule 1 of the Civil Procedure Code provides that pleadings shall mean plaint or written statement”. Order VI Rule 2, SubRule (1) reads as under:
(1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
The aforesaid makes a fine distinction between the pleadings and the evidence by which they are to be proved. Pleadings cannot be treated as proof unless there is an admission of the averments stated in the plaint in the written statement of the defendant.
9866 Mr. Nanavaty, the learned A.G.P. appearing for the State of Gujarat, first contended that the case on hand is one in which the principles of res ipsa loquitur did not apply, as the plaintiffs themselves have assigned the cause of accident; that the plaintiffs should have, therefore, affirmatively proved that the death of the deceased was due to negligence of the Army personnel; that the plaintiffs could not succeed merely because the State had failed to explain the accident: that even if the doctrine applied, the onus that lay on the defendant was not an onus of disproving negligence but that it was sufficient for them to give a reasonable explanation of the way in which the accident might have happened, without any negligence on their part; this they had done by showing that on the day of the incident, a procession of Lord Jagannath was on the way popularly known as “Rath Yatra” in the State of Gujarat, there was pelting stones from the side of both the communities when the chariot was passing through a particular locality; the stone throwing was also upon the military personnel whose assistance was taken by the State of Gujarat for maintenance of law and order; the officers despite giving warning, the pelting of stones was not stopped; the firing was opened under the permission of the Executive Magistrate, was not of any personal vengeance of any nature and no negligence of the State or its officers, but was with a view to maintain law and order situation which is a sovereign act of the State.
67 The above noted contention canvassed on behalf of the State makes it necessary for me to examine the meaning and the scope of the doctrine of res ipsa loquitur. The expression res ipsa loquitur only means that “the thing speaks for itself.” When used in connection with cases of negligence, it connotes that the circumstances attendant upon an accident are of themselves sufficient and of such a character as to justify an inference of negligence as the cause of that accident. As was said by 99Erle C.J., in ‘Scott v. London Dock Co.’, (1865) 3 H and C 596 (A) :
“Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management used proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”
68 The doctrine thus depends on the absence of explanation and is merely a rule of evidence affecting onus. It imports that the plaintiff has made out a prima facie case without any direct proof of actionable negligence and this is enough to shift the burden of proof on to the defendant of giving an adequate explanation of the cause of accident, if he desires to protect himself. Since ‘Scott’s case (A)’ there have been several cases where the question of the “explanation” required of defendant has been discussed, it is not necessary to examine those cases. One view is that the principle of res ipsa loquitur is a rule creating a legal presumption of negligence, and to displace this presumption the defendant’s explanation must exclude negligence and his evidence must disprove negligence. The case of ‘Woods v. Duncan’, (1946) AC 401 (B) is sometimes regarded as an authority for this view. The presumption of negligence theory was also advanced by Asquith L.J., in the Court of Appeal in the case of ‘Barkway v. South Wales Transport Co.’, 19482 All ER 460 (C). Another view is that the principle is only a rule of evidence in the sense of shifting the onus on to the defendant, leaving the ultimate burden of proving negligence on the plaintiff, and that for discharging his onus it is sufficient for the defendant to give reasonable explanation falling short of disproof of negligence. In ‘McGowan v. Scott’, (1923) 99 LJ (KB) 357n (D) Lord Atkin treated the principle as equivalent to a statement that on facts in evidence, the plaintiff has satisfied the burden of proof enough to shift it on to the 100defendant. When the case of ‘Barkway v. South Wales Transport Company’ went up in appeal to House of Lords, 19501 All ER 392 (E) Lord Normand said that “the maxim is no more than a rule of evidence affecting onus. It is based on commonsense, and its purpose is to enable justice to be done when the facts bearing on causation and the care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant.” Lord Radcliff regarded the maxim as nothing more than a rule of evidence “of which the essence is that an event which in the ordinary course of things is more likely than not to have been caused by negligence is by itself evidence of negligence.” He also made the observation that “the true question is not whether the appellant adduced some evidence of negligence but whether on all the evidence she proved that the respondents had been guilty of negligence in a relevant particular.”
On the whole, it seems to me that the balance of authority is in favour of the view that the maxim res ipsa loquitur when applied to an action for negligence is merely a rule of evidence affecting onus. It does not alter the general rule that the burden of proof of the alleged negligence rests upon the plaintiff. It means that the res or the facts and circumstances of the accident proved by the plaintiff are by themselves, without any direct proof of negligence, sufficient prima facie evidence from which an inference of negligence may reasonably be drawn.
The inference may be rebutted by the defendant by proving some specific cause of the accident for which he was not responsible or by proving that he was, in fact, not negligent, or by giving a reasonable explanation and proving it, that the happening of the accident was as consistent with the absence of negligence as it was with the presence of negligence. When the defendant has done this, the burden is shifted 101back to the plaintiff.
If the defendant fails to give any such evidence, the plaintiff succeeds not because the burden of disproof of negligence is on the defendant, but because by reason of the res or the facts and circumstances of the accident proved, he has discharged the onus of establishing his case of negligence. From what has been stated above, it is clear that there is no room for the operation of the doctrine of res ipsa loquitur when all the facts are known and the cause of the accident has been ascertained. As was said by Lord Porter in 19501 All ER 392 at p.393 (E) “if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and the solution is to be found by determining whether on the facts as established negligence is to be inferred or not.”
But in my view, it is not correct to say that the principle of res ipsa loquitur ceases to apply if the plaintiff assigns a possible cause of the accident and tenders evidence which does not completely explain the accident. If the mere fact of the occurrence is prima facie evidence of negligence, and res ipsa loquitur is only a rule for inferring negligence from the res or circumstances of the accident proved, then it is easy to see that the effect of the plaintiff’s assigning a cause for the accident and leading some evidence to explain it can only be to strengthen or weaken the inference of prima facie negligence resulting from the fact of the accident itself.
In such a case, it is the weight and the cogency of the evidence as a whole that will determine the inference of negligence. It is difficult to see how the cogency of the fact of the accident by itself would disappear by the mere fact of the plaintiff assigning a cause for the accident and by offering evidence that may or may not completely explain the accident.
102That cogency can disappear or be strengthened or weakened only on an evaluation of the evidence tendered by the plaintiff. But this is quite different from saying that res ipsa loquitur is excluded when the plaintiff assigns a cause and offers evidence.
69 In the aforesaid context, let me refer to and rely upon a Division Bench decision of the Calcutta High Court in the case of Pranballav Saba and another vs. Smt. Tulsibala Dassi and another [AIR 1958 Calcutta 713]. In the said case, the issue was whether the letting of certain premises was for the immoral purpose of carrying on prostitution and running a brothel. In the plaint, it was alleged that the premises were let out by one Ranubala Dassi to the defendant for running a brothel. A case of disorderliness, annoyance and nuisance was also made in the plaint. The plaintiffs being the executors and trustees of the premises in question prayed for possession. The defendant filed a written statement and pleaded that she resided with her family and children. In the said case, like the case in hand, the defendant failed to enter the witness box and lead any evidence in support of her pleadings in the written statement. The Division Bench observed in para 14 as under:
“Before leaving this question of fact it is necessary to emphasize the defendant’s absence from the witnessbox and the effect of such absence on the issue of fact. In fact not only the defendant but no witness on her behalf gave any evidence at the trial. The learned trial Judge says on this point:
“The counsel for the plaintiff made strong comment on the absence of the defendant from the witnessbox and contended that because of such absence I ought to presume that she kept herself away from the witness box in order to prevent the truth coming out of her own lips. Before the court can be called upon to make any presumption of the kind it is for the plaintiffs to satisfy the court prima facie that they have made out a case.”
103The question then is what is a prima facie case. All the evidence of reputation from family physician, executors, trustees, local residents is there. It is surely prima facie evidence. The distinct charge in the evidence from the witness box is (1) that the defendant is a prostitute and carries on prostitution and (2) that she took the house on rent to run a brothel there. That is the prima facie case. She does not come herself nor calls any witness to deny these serious allegations of fact. Whether the Judge should believe one witness or another or one case or another in such a context of facts is not then a question of prima facie case. It is then a question of the weight of evidence and its credibility. Prima facie case is not the conclusive case and the learned Judge mistook the one for the other in his judgment. The very fact that the defendant neither came to the box herself nor called any witness to contradict evidence given on oath against her shows that these facts cannot be denied. What was prima facie against her became conclusive proof by her failure to deny.”
70 I may also refer to and rely upon on a Privy Council decision in the case of Sardar Gurbakhsh Singh vs. Gurdial Singh and another [AIR 1927 Privy Council 230]. It has observed as under:
“The practice of not calling the party as witness with a view to force the other party to call him, and so suffer the disconfiture of having him treated as his, (the other party’s) own witness is a bad and disregarding practice. 32 All. 104 (P.C.) Ref. The true object to be achieved Court of Justice can only be furthered with propriety by the testimony of the arty who personally knowing the whole circumstances of the case can dispel the suspicious attaching to it. The story can then be subjected in all its particulars to crossexamination.”
“But in any view her nonappearance as a witness, she being present in Court, would be the strongest possible circumstance going to discredit the truth of her case.
How did the High Court deal with this? They say: “It is true that she has not gone into the witness box, but she made a full statement before Chaudhri Kesar Ram, Chaudhri Kear Ram was the Assistant Collector, also known in the Punjab as Revenue Assistant and it does not scorn likely that her evidence before the Subordinate Judge would have added materially to what she had said in the statement.”
Their Lordships disapprove of such reasoning. The true object to be 104achieved by a Court of Justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its particulars to cross examination.”
71 The Supreme Court in the case of Vidhyadhar Vishnupant Ratnaparkhi vs. Manikrao Babarao Deshmukh [AIR 1999 SC 1441] considered the effect of a party to the suit not appearing into the witness box and stating his or her case on oath. The Supreme Court observed as under:
“15…He did not state the facts pleaded in the written statement on oath in the Trial Court and avoided the witness box so that he may not be cross examined. This, by itself, is enough to reject the claim that the transaction of sale between defendant No. 2 and the plaintiff was a bogus transaction.
16 Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr [AIR 1927 PC 230]. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors [AIR (1930) Lahore 1] and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh [AIR (1931) Bombay 97]. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat [AIR 1970 Madh Pra 225] also followed the Privy Council decision in Sardar Gurbakhsh Singh’s case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. [AIR 1971 Allahabad 29] held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors. [AIR 1974 Punj and Har 7], drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.”
72 Thus, in Sardar Gur Bux Singh v. Gurudayalsingh [AIR 1927 PC 230], their Lordships of the Privy Council observed at pages 233 and 234 that it is the bounden duty of a party acquainted with the facts of 105the case to give evidence in support of his case; failure to do so would be the strongest possible circumstance going to discredit the truth of his case.
73 I am of the view that mere filing of the written statement would not constitute adducing of legal evidence unless the statement contains a neat question of law or the Court can take judicial notice of the facts pleaded in the written statement in accordance with the provisions of Sections 56 and 57 of the Evidence Act. Merely taking a defence in the written statement is not sufficient without proving it by evidence in a suit filed by the plaintiff against the State for damages. It is only the wife of the deceased who entered into the witness box and was examined as the PW 1.
74 Let me at this stage take a note of one very important aspect. The plaintiffs could be said to have satisfactorily discharged the burden open it for proving the issue No.2 in the affirmative. The plaintiff in her cross examinationinchief has stated as to the rash and negligent manner in which the firing was opened by the Army and how the same led to death of her husband. She has made out a case of wrongful deprivation of the life of the deceased resulting into consequence of liability on the part of the State to pay the compensation. The point, I would like to take note of, is that except putting suggestions in the cross examination, the defendants have not been able to discern anything from the evidence of the plaintiff on the strength of which the issue No.4 could have been in the affirmative. It is a settled position of law that mere suggestions are not sufficient to dislodge or disprove the case of the plaintiff. Suggestions in cross examination have no evidentiary value. In absence of any evidence, nor any material traced in the crossexamination in support thereof, the findings so far could not have been answered in the 106affirmative by the Trial Court as well as by this Court in the First Appeal.
75 The issue No.1 was on the aspect as to “whether the plaintiff proves that the deceased Gulam Rasul Rathod died in the police firing on 30th June 1985” and the said is held to be in the affirmative. Whereas the issue No.2 on the aspect of as to “whether plaintiff proves that the police was negligent in opening fire in the circumstance of the case”, if was to be examined in context to the proof produced in support of the said issue, the same was very much there before the Trial Court through the deposition of the wife of the deceased – one of the plaintiffs, who entered into the witness box and offered herself for examination. The issue No.2 ought to have been answered in the affirmative.
76 I am also not impressed by the submission canvassed on behalf of the State that as the responsible officer, who opened fire, was not joined as one of the defendants nor the Union of India was joined as one of the defendants, no liability can be fastened upon the State Government. It is too feeble an argument to be countenanced for the purpose of rejecting the claim of the plaintiff. The incident occurred in the State of Gujarat. The Executive Magistrate was very much present at the time of the incident and it was under his permission that the firing was resorted to. The State has not even pleaded that the entire area of the route in the procession of chariot of Lord Jagannath was entrusted to the Army, but the case pleaded in the written statement by way of defence is that the Army was deployed to assist the State and such is the reason why the pleadings were made in the written statement for the permission of the Executive Magistrate. If the entire area would not have been entrusted to the Army, then probably, the permission of the Commandant of the Army would be required, but, in a case where the State had requisitioned Army for the assistance of the State Police or for 107maintenance of the law and order in certain areas of the State, the officers of the Army or the members of the armed force would be acting on and behalf of the State Government, who had so requisitioned the services of the Army. In my view, when the members of the armed force acted upon under the permission of the Executive Magistrate, the suit could not have been dismissed on the ground that the concerned officer of the Army was not joined as the party or otherwise. I fail to understand how the State expects the plaintiff to pinpoint a particular Army personnel responsible for the rash and negligent act of firing. How the State expects the plaintiff to name a particular person? The admissions in the pleadings are as under:
1. “Admissions in the pleadings :
1. The day of the incident was the day of Rathyatra on which a procession is being carried of Lord Jagannathji by Hindus.
2. Because of the law and order situation, the permission was not granted for the procession of the chariot of Lord Jagannathji.
3. In spite of the nongrant of the permission for the procession of Lord Jagannathji, Hindus had decided to carryout the procession of Lord Jagannathji on the same day and procession of the chariot of Lord Jagannathji was organised and undertaken by Hindus.
4. As it was not possible for the State to stop the undertaking of the procession of chariot of Lord Jagannathji, in order to maintain law and order situation, curfew was imposed and assistance of the army was taken by the State in certain area of the city which included the area at which the incident happened. In that area, there was also residence of the deceased.
5. When the chariot was passing through certain area, police opened 108firing. The bullet in the police firing hit the deceased who died on account of the bullet injury.”
The following pleadings of the original defendants remained without proof:
2. “The pleadings of the appellants (original defendants) remained without proof:
1. There was stone throwing from both the community when the chariot was passing through Sajan Jamadar Mohalla. The stone throwing was also upon the platoons of the military whose assistance was taken by the State for maintenance of law and order.
2. The officers gave warning to the mob for stoppage of stone throwing, but was not responded/or discontinued.
3. The firing was opened under the permission of the Executive Magistrate.
4. Five rounds were opened in the police firing.
5. The police firing was not on account of any personal vengeance or by keeping vengeance to a particular community.
6. There was no negligence of the State or its officers, but was with a view to maintain law and order situation which is a sovereign act of the State.”
77 This being the legal position, the question to be considered is whether on the facts taken as a whole, negligence or rashness on the part of the defendants can or cannot be deduced.
10978 The expression “burden of proof” is used in two senses, i.e. the burden of proving an issue or issues sometime termed the ‘legal burden’, and the burden of proof as a matter of adducing evidence during the various stages of the trial. What is called the burden of proof on the pleading should not be confused with the burden of adducing evidence which is described as “shifting”. See, observations in Narayan v. Gopal [AIR 1960 SC 100]; Pickup v. Thames Insurance Co., [(1878) 3 QBD 594]; Lakshmana v. Venkateswarlu, [76 Ind App 202 : (AIR 1949 PC
278); 15 Halsbury (Simond) 267]; HuytonwithRoby Urban District Council v. Hunter, [(1955) 2 All E. R. 398 at p. 400] per Denning L. J. These two aspects of the burden of proof are enunciated in Sections 101 and 102 of the Evidence Act. Section 101 shows that the initial burden of proving a prima facie case in his favour is on the plaintiff. When he gives such evidence as will support a prima facie case, the onus shifts on the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, the onus may shift back again to the plaintiff.
79 The principles on which the suits of the present nature are decided are well known. The general rule that it is for the plaintiff to prove negligence, and for the defendant to disapprove it, would in some cases cause considerable hardship to the plaintiff as the true cause of the accident might be solely within the knowledge of the defendant. The plaintiff may be able to prove the accident, but it might well be that he cannot prove how it happened so as to show its origin in the negligence of the defendant. This hardship is avoided to a considerable extent by the rule res ipsa loquitur discussed above. There are cases in which the accident speaks for itself, so that it is sufficient for the plaintiff in such cases to prove the accident and no more. It would be then for the 110defendant to show that the accident arose through no negligence of his. The maxim res ipsa loquitur applies whenever it is so improbable that such an accident could have happened without negligence of the defendant that a reasonable jury could find without further evidence that it was so caused. It is true that there must be reasonable evidence of negligence, but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care. On the other hand, if the defendant produces a reasonable explanation, equally consistent with negligence and no negligence, the burden of proving the affirmative, that the defendant was negligent and that his negligence caused the accident, would still remain with the plaintiff.
80 I have reached to the conclusion that in the absence of any evidence whatsoever adduced on behalf of the State by examination of any of its officers or any other witness, it could not have been said that the pleadings, in the written statement, by way of a defence raised on behalf of the State, stood proved. If the State was to prove that on account of stone pelting on the police or the Army, the firing was the only alternative, then it was necessary for the State to have first proved that there was pelting of stones. It was also necessary for the State to prove that no sooner the pelting of stones started, then a proper warning was given to the mob. It was also necessary for the State to establish and prove that in spite of the warning, the pelting of stones continued. It was also necessary for the State to prove that thereafter, the permission of the Executive Magistrate was obtained for resorting to police firing, and at the same time, it was necessary for the State to prove that the police 111firing had to be resorted to prevent the mob from pelting of stones and not for targeting a particular individual so as to take away his life. Indisputably, neither any documentary evidence has been produced nor any oral evidence has been led in this regard. In such circumstances, with just filing of the written statement, the Trial Court ought not to have dismissed the suit, more particularly, when the plaintiff entered into the witness box and she stood by the pleadings narrated in the plaint. This aspect has not been considered by the learned Single Judge while dismissing the First Appeal. At this stage, let me look into the Division Bench decision of the Calcutta High Court in the case of Fateh Chand Murlidhar vs. Juggilal Kamlapa [AIR 1955 Calcutta 465] on which strong reliance has been placed by the learned A.G.P. appearing for the State. In the said case, the Division Bench observed as under:
“17. I shall refer only to two old cases where the law was laid down with all the clarity and brevity, of Sir Barnes Peacock. Both the decisions are reported in Vol. IX of the Weekly Reporter. The first of them is the case of ‘Sooltan Ali v. Chand Bibee’, 9 Suth WR 130 (A). The headnote of the case which correctly summarises the decision is in the following words:
“A written statement is not a pleading in confession and avoidance whereby a defendant is bound by the confession and compelled to prove the avoidance: if used as evidence against a defendant, the whole statement must be taken together.”
18. What the learned Chief Justice held in that case with the concurrence of Dwarkanath Mitter J., was what has subsequently been laid down in several decisions of the Judicial Committee notably ‘Motabhoy Mulla Essabhoy v. Mulji Haridas’, AIR 1915 PC 2 (B). The principle is that while a Court of law is entitled to accept a part of the evidence of a witness and to reject another part, a pleading cannot be so dissected, but must be taken either as a whole or left alone altogether. In other words, if a written statement contains an admission of certain facts which are favourable to the plaintiff but contains a denial of other facts favourable to him or an assertion of other facts which are unfavourable, the plaintiff must, if he wants to avail himself of the admission, take not only the first set of facts as truly stated, but also the second set of facts.
Applying that principle to the present case, respondents, if they wanted to 112avail themselves the statement of the appellants were bound to take not only their admission that a sum of Rs.5,000/had been paid and that it had been paid in pursuance of a form of settlement, but also their further statement that they had been compelled to submit to the settlement by coercion.
In the case to which I have already referred, Sir Barnes Peacock illustrated the principle by a hypothetical case.
“Suppose”, the learned Chief Justice observed, “a man should be sued for goods sold and delivered, and should state and swear to the statement that the goods were bought and delivered to him in a shop by a person whom he did not know and that he paid for them at the time.”
If that statement were true, he could not honestly state that he had never bought the goods; and if the statement that he had bought them, was to be taken against him without also taking his statement that he paid for them at the time, the greater injustice might be done, for he would be unable to compel the attendance of the man who sold the goods, inasmuch as he was unknown to him; but if the plaintiff being unable to read one part of the statement as evidence against, the defendant without reading in his favour what he said as to payment, the plaintiff would have to cite the man who sold the goods for the purpose of proving his case, and then if the witness should speak the truth, the defendant would make out his defence by eliciting from the witness on crossexamination the fact that the defendant had paid for the goods at the time.”
81 The principles explained by the Division Bench referred to above, in my view, has no application in the facts of the present case. The principle was applied to the facts of that case where it was held that if the respondents wanted to avail themselves of the statement of the appellants, they are bound to take not only the admission that Rs. 5,000/ had been paid and that it had been paid in pursuance of a form of settlement but also their further statement that they had been compelled to submit to the settlement by coercion. It cannot be said that the plaintiff has been able to establish its case only on the basis of the admission of the State in the written statement as regards resorting to police firing. Probably, what is sought to be contended on behalf of the State is that in the written statement, firing has been admitted, but at 113the same time, the justification has also been assigned, then in such circumstances, the plaintiff is obliged not only to avail himself of the admission of firing, but also as regards the justification to resort to firing. The Division Bench decision of the Calcutta High Court, in my opinion, indicates that when a statement on admission is made in pleading together with further statement centering round, depending and standing on and conditional upon that admission, all the statements are to be taken and considered together in respect of such pleading. But if a statement on admission is made unconditionally and thereafter further admission is made which is not conditional or based on such earlier admission but is an assertion of the specific case not dependent or conditional upon the earlier admission, the above principle will not be applicable. In the case on hand, the plaintiff has independently established that the Army resorted to indiscriminate firing for no good reason and that too without any prior warning. The rash and negligent act led to the death of the deceased, thereby violating Article 21 of the Constitution of India. Having regard to the circumstances proved by the oral evidence of the wife of the deceased i.e. one of the plaintiffs, the onus of proving the absence of negligence or the justification to resort to firing was on the defendants. In Halsbury’s Laws of England Volume: 35, 3rd Edition at page 688, it is stated thus:
“By providing certain circumstances the plaintiff may shift the burden of proof on to the defendant. Thus, where a vessel under way in daylight and clear runs down a vessel at anchor, the burden, is on the owners of the vessel at anchor established a prima facie case when he has shown that his vessel had a proper light.”
See: Jalim Ram Mallah vs. The R.S.N. Co. Ltd. [1969 I UJ 63 SC].
82 In my view, the plaintiff could be said to have satisfactorily 114discharged the burden upon it for proving the issue No.4 in the affirmative and the defendant could be said to have failed to discharge the burden of proving the issue No.4 in its favour.
83 No submissions were canvassed on the question of quantum of compensation nor pleaded in the defence. According to the evidence of the plaintiff, her husband was earning Rs.700/ to Rs.750/ per month by doing some petty business. In my view, awarding of the compensation, as prayed for, of Rs.90,000/ (Rupees Ninety Thousand only) would meet with the ends of justice.
84 In the result, this appeal succeeds and is hereby allowed. The judgment and decree dismissing the suit and its affirmation thereof by the learned Single Judge in the First Appeal is hereby quashed and set aside. The Civil Suit No.3605 of 1986 is allowed with a decree of the compensation of Rs.90,000/ (Rupees Ninety Thousand only) with interest at the rate of 7% per annum from the date of the suit until the amount is realised. The decree be drawn accordingly.
(J.B.PARDIWALA, J.) FURTHER ORDER After the judgment is pronounced, Mr. Maulik Nanavati, the then A.G.P. made a request that as he is no longer an A.G.P. as on date, the names of two learned A.G.Ps. attached with this particular Court as on date, be shown in the appearance so that the State would come to know about the judgment and order passed by this Court. Let the names of Ms. Nisha Thakore and Mr. Utkarsh Sharma, the learned A.G.Ps. be shown in the appearance.