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ADMINISTRATIVE LAW PROJECT LIABILITY OF THE STATE IN TORT IN THE PRESENT SCENARIO

TABLE OF CONTENTS

1. INTRODUCTION 2. TORTIOUS LIABILITY OF THE STATE IN INDIA 1

2.1PRINCIPLE OF VICARIOUS LIABILITY 2.2POSITION IN INDIA PRE-CONSTITUTION 2.3POSITION IN INDIA POST-CONSTITUTION 3. FURTHER DEVELOPMENTS IN LAW

3.1 LIABILITY IN TRANSPORT 3.2 LIABILITY IN RAILWAYS 3.3 TORTS AGAINST PROPERTY 3.4 TORTS AGAINST PERSON 3.5 FAILURE TO MAINTAIN LAW AND ORDER  3.6 POLICE LAWLESSNESS 3.7 NEGLIGENCE BY MUNICIPAL BODIES 4. POSITION IN BRITAIN 5. CONCLUCION 6. SUGGESTION

LIST OF ABBREVIATIONS

1. S

-

Section

2. &

-

And

2

3. Eg.

-

Example

4. Ed.

-

Edition

5. All

-

Allahabad

6. ER

-

England Reporter

7. Vol.

-

Volume

8. Para.

-

Paragraph

9. Co.

-

Company

10. Ltd.

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Limited

11. Ch.

-

Chapter

12. LR

-

Law Reporter

13. App.

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Application

14. SCC

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Supreme Court Cases

15. BLR

-

British Law Reporter

16. AIR

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All India Reporter

17. MP

-

Madhya Pradesh

18. Cal

-

Calcutta

19. SCR

-

Supreme Court Review

20. SC

-

Supreme Court

3

LIST OF CASES

1. Kartick v. W.B.S.I.C. 2. Ramana v. I.A.A.I 3. State of Punjab v. Raja Ram 4. Gulam v. State of U.P. 5. Som Prakash v. Union of India 6. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology 7. Rajasthan State Electricity Board v. Mohan Lal 8. Ujjam Bai v. State of U.P. 9. Ramamurthi v. Chief Commr. 10. State of Gujarat v. Shantilal 11. Rashid Ahmed v. Municipal Board 12. Ajit Singh v. State of Punjab 13. Bhagat Ram v. State of Punjab 14. R. I. Handicraft Manufacturing Association v. Kottayam Municipality 15. Natwarlal 15. Natwarlal Khodidas Parmar v. Dist. Panchayat , Jamnagar 16. State Trading Corporation v. C.T.O 17. Housing Board v. H.H.B.E.U 18. Masthan Sahib v. Chief Commr 19. Sonu Prakash Rakhi v. Union of India 20. Trilok Singh v. Kailash Bharti

4

21. Tamlin v. Hannaford 22. U.S. v. Muniz 23. Peninsular & Oriental Steam Navigation Company v. Secretary of State 24. Secretary of State v. Hari Bhanji 25. Forrester v. Secretary of State for India 26. Maharaja Bose v. Governor –  Governor –  General  General in Council 27. State of Rajasthan v. Vidhyawati 28. Annamalai v. Abithakujambal 29. Chairman, Railway Board v. Chandrima Das 30. Satyawati v. Union of India 31. M. Vijaya v. Chairman and Managing Director, Singrani Collieries Co. Ltd. 32. State of Punjab v. Modern Cultivators 33. Union of India v. P. S. Mahal 34. Sebastin M. Hongray v. Union of India 35. Rudul Shah v. State of Bihar 36. Bhim Singh v. State of Jammu & Kashmir 37. SAHELI a Woman‟s Resources Centre v. Commr. of Police, Delhi 38. Inder Puri General Stores v. Union of IndiaNilabati Behera v. State of Orissa 39. Tobin v. The Queen 40. Nieraha 40. Nieraha v. Baker

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Aim & Objective of the Study To analyze the extent to which the State would be liable for the torts committed by its servants or the State as a whole.

Hypothesis The scope of the expression “sovereign functions” is considerably narrowed down and that various courts have regarded many Governmental acts as “non sovereign”.

Research Methodology The research methodology used in this project is the non-empirical type of research. The sources from where the data has been collected are the secondary sources.

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INTRODUCTION

This project mainly deals with the liability of a State or a Government, where the action is done either by the officials of the Government or by the State as a whole, and where the question of the liability of the State and protection of the rights of the citizens arises. The  basic question of this project is primarily to decide, the cases where the State or the Government can be said to be sovereign institutions- to decide if they are liable or not for their actions. The The concept of “State” as provided as provided in the Constitution under Art. 12 includes the Government, the Parliament of India, any form of Legislature and all local and other authorities that are under the control of the Government of India. To what extent the State would be liable for the torts committed by its servants is a complex problem especially in developing countries with ever widening State activities. The liability of the government in tort is governed by the principles of public law inherited from British common Law and the provisions of the Constitution. The whole idea of liability of the State for the torts committed committed by its servants is based on three principles: 

Respondeat superior (let the principal be liable).



Quifacit per alium facit per se s e (he who acts through another does it himself)



Socialisation of compensation.

Tortious liability of a Government means a situation where the Government is to be held liable for a civil wrong committed by any official working for the Government or the State as a whole, against an individual, that has resulted in violation of his Fundamental Rights. The liability of a Government only arises in situations where the Government has not been acting as a sovereign. A situation of vicarious liability has been created where, as per the definition, one person is held liable for the acts committed by the others. In a situation where vicarious liability is said to have arisen for the State, the Government or an official working for the Government has caused breach of the Fundamental Rights of an individual.

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STATE’S LIABILITY FOR TORTS

Article 300 of the Constitution says that the Government of India may sue or be sued by the name of the Union of India and Government of a State may sue or be sued by the name of the State, or of the Legislature of a State. St ate. Thus Thu s the Constitution Constit ution makes m akes the Union and the States as juristic persons capable for owning and acquiring property, making contracts, carrying on trade or business, bringing and defending legal action, just as private priv ate individuals. indivi duals. The legal l egal personality of the Union of India, or a State of Indian Union is thus placed beyond doubt by the express language of Article 300.

Article 300 (1) pr ovides that the Government of India may be be sued sued in relati relation on to its affairs in the like case as the Dominion of India, subject to any law which may be made by Act of Parliament. The Parliament has not made any law and therefore the question has to be determined as to whether the suit would lie against the Dominion of India before the Constitution came into force. Thus, so long as the Parliament or the State Legislature do not enact a law on the point, the legal position in this respect is the same as existed before the commencement of the Constitutio Constitution. n.

Before present Constitution came into force the East India Company, and after Government of India Act, 1858, which trans ferred the Government of India to Her Majesty with its rights and liabilities, the Secretary of State Council were liable for the tortuous acts of their servants committed in the course of their enjoyment.

PRINCIPLE OF VICARIOUS LIABILITY

Vicarious liability is a concept of Tort Law meaning the liability to be borne by one  person for the acts committed by another person. The principle of vicarious liability arises only in certain cases and where a relationship has been established between the two persons. These relationships are mainly categorized in three parts: (a) Principle and Agent, (b) Partners, and (c) Master and Servant. The liability of the principal arises when his agent commits a tort in the course of performance of his duty as an agent and hence they are considered to be joint tort feasors since their liability is joint and several. When the wrongful act is done by one partner in the ordinary course of the business of the firm, all the other 8

 partners are vicariously liable for the same. Their liability is also joint and several and the  plaintiff can choose to sue either one of the partners or the entire firm for the tort committed  by the guilty partner. The same rule applies in the case of master –  master  –  servant  servant relationship where the master is vicariously liable for the wrongful act done by his servant in the course of employment. The principle of vicarious liability underlines one very important concept. It states that in the case of a principal  –   agent, partners, or a master  –   servant relationship, the  principal, all of the partners, and the master, respectively, can only be sued if the agent, the guilty partner, and the servant commit the wrongful act during the course of their employment. In the case of Trilok Singh v. Kailash Bharti 1, while the owner of the motor cycle was outside the country, his younger brother took the motor cycle without his knowledge or permission and caused the accident. It was held that the younger brother could not be deemed to be the agent of the owner of the motor cycle and the latter could not be vicariously liable for the accident. I n the t he case case whe wh er e a state state is to be held hel d li able abl e f or the th e acts commi tted by i ts empl empl oyee oyees and off ici als, Ar t. 300 300 of the Consti Consti tuti on shoul shoul d be r eff er ed. Ar t. 300 300 of th e Consti Consti tuti on of I ndia i s as under: under:

Art. 300 (1) The Government of India may sue and be sued by the name of 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 provision which may be made by Act of Parliament or of the Legislature of  such State enacted by virtue of power 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 –  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 of those proceedings; and

1

 1986 ACJ 757 (P & H). 9

(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.  No action lies against the Government for injury done to an individual individual in the course of exercise of sovereign functions of the Government. If the Government has been acting out of its own accord, and during such a course of fulfilment of the duty, it causes injury to any individual, then the individual cannot be compensated for the damages done to him because, such an act was done as a sovereign function and injury to the individual was not caused to him during the course of his employment. Art. 300 provides for situations under which the Government of India can be sued after the commencement of the Constitution. It provides for the trial of those cases that are pending in the Courts before and after Indian independence and admission and disposal of those cases under the name of Union of India.

POSITION IN INDIA PRE-CONSTITUION

The extent of liability of the government for torts of its employees is defined by Art. 300(1) of the Constitution which declares inter alia  alia  that the Government of India, or of a State, may 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 the Constitution had not been enacted. This is subject to any law made by the Parliament or the State Legislature. S. 176 of the Government of India Act, 1935, stated that the Dominion of India and the Provincial Government may sue or be sued in relation to their respective affairs in the like cases as the Secretary of State for India in Council might have sued or been sued if the Government of India Act of 1935 had not been enacted. Thus, the liability of the Government was made co  –   extensive with that of the Secretary of State for India under S. 32 of the Government of India Act, 1915, which in turn made it co –  co  –  extensive  extensive with that of the East India Company prior to the Government of India Act, 1958. S. 65 of this Act thus preserved against the government the same suits and  proceedings which were then available against the East India Company. The Secretary of State for India in Council could be sued in all those cases in which the East India Company

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could be sued before 1858 2. By the Charter Act of 1833, the East India Company came under the hold of the Government of India in trust for the British Crown. In 1858, the Crown assumed sovereignty in India to take over the administration of India from the hands of the Company. Thus, from 1765 to 1858, the Company had a dual character: it was a trader and also exercised some sovereign powers. As the Company was an autonomous corporation, having an existence of its own, and bearing no relationship of servant or agent to the British Crown, the immunity enjoyed by the Crown was never extended to it. In a leading case arising under S. 65 of the Government of India Act, 1858  –   Peninsular & Oriental Steam Navigation Company v. Secretary of State 3 –  was decided in 1861 by the Calcutta Supreme Court, where the  P. & O. made a claim for damages against the Secretary of State for injury to its horse caused on the highway because of the negligence of some workmen employed in the Government Kidderpore Dockyard. To determine the liability of the government, the court posed the question whether the East India Company would have been made liable in such a situation. After the Charter Act of 1833, the Company was acting in a dual capacity in India as a merchant, as well as one exercising sovereign  powers as a trustee of the Crown Cr own in respect of the t he territorial possessions acquired by b y it. The court pointed out that the fact that the Company exercised sovereign powers as a delegate of the Crown did not make it a sovereign. Therefore, the Crown immunity could not extend to it. As to the scope of actual liability of the Company, the court stated that where an act was done in exercise of „sovereign powers‟, no action would lie against it. The court further stated that if the Company were carrying on activities which would be carried on by private persons, the Company would be liable for torts of its servants committed during the course of such activities. Hence, no action would lie in the former case. The sovereign powers were defined as “powers which cannot be lawfully exercised except by a sovereign or private individual delegated by a sovereign to exercise them”. On the basis bas is of this reasoning, the court held in the instant case that the Company would have been liable for negligence of its servants in

2

 By 3 & 4 Will IV, C. 85, the East India Co. was made a trustee for the Crown in respect of all the property which it possessed in India. The Act of 1858 transferred the Indian Terr itories to the Crown. As the Queen could not be sued in her own courts under the common law prevailing at the time, the Act provided that the Secretary of State as a body corporate would have the same rights of suit as the Company had and would be subject to the same liability of being sued as previously attached to the East India Company.

3

 5 Bom HCR App. 1. 11

repairing a river steamer or doing any action in connection with such repairs. Thus, the Secretary of State was held liable. The P. The P. & O. case O. case thus laid down two propositions: (a) Apart from any special statutory provision, suits could have against the East India Company and, consequently, against

the

been

Secretary

of

brought State

as

successor to the Company, in respect of acts done in the conduct of an undertaking which might be carried on by private individuals without sovereign sovereign powers. (b) The Secretary of State was not liable for anything done in the

exercise

of

functions

are

sovereign powers. Most of the cases cited in P. in P. & O. as examples of sovereign

really cases pertaining to act of state. However, the distinction between the „sovereign‟ and „non – sovereign‟ – sovereign‟ functions

is amorphous and unfocussed except when the court equals

sovereign functions with acts of state in the present case. The P. The  P. & O. case O.  case was considered by the Madras High Court in the case of Secretary of State v. Hari Bhanji 4. The facts of the case, briefly stated, were that during the course of transit of salt from Bombay to Madras ports, the rate of duty on salt as enhanced and the merchant was called upon to pay the difference at the port of destination. He paid under  protest and instituted a suit for recovery. The court ruled that the immunity of the East India Company extended only to “acts of  state”, strictly so –  called   called and that the distinction based on sovereign and non –  non  –  sovereign  sovereign functions of the East India Company was not well founded. Acts thus done in the exercise of sovereign powers but which do not profess to be justified by municipal law are what we understand to be the acts of State which municipal courts are not authorised to take cognizance. 5 As regards  P. & O., O., it was said that it was an authority for the proposition that the government was responsible for injuries in the course of transactions of a commercial or  private character, but that it did not exclude liability in other respects. In  Hari Bhanji, Bhanji, a  broader view of government liability, and a narrower view of the P. the  P. & O. ruling was adopted.

4

 (1882) ILR 5 Mad 273.

5

 (1882) ILR 5 Mad 273, 279, emphasis supplied. 12

The view propounded that the gover nment gover nment was liable for all acts other than an „act of state‟ and that the distinction based on „sovereign‟ and „non –  sovereign‟ functions was not well founded. The view was taken that the acts of the government fell either outside, or within, the municipal law and that it was only the former of which the courts could not take cognizance. While the line of reasoning adopted by the court in  Hari Bhanji found Bhanji found some support in a few later cases, in effect, the  P. & O. view O. view drawing distinction between sovereign and non  –   sovereign functions came to be perpetuated in the case of  Forrester v. Secretary of State for India. India.6 Had the view propounded in  Hari Bhanji found judicial acceptance in India, the position as regards the tortious liability of the government would have developed on entirely different lines. But the view that found general judicial acceptance, and thus became the ruling norm, was that the government was not liable for any tortious liability arising out of the exercise of a „sovereign‟ function. POSITION IN INDIA POST-CONSTITUTI POST-CONSTITUTION ON

Even in Republican India after the new Constitution came into force in 1950, the pre  –  Constitution   Constitution judicial trend continued and the courts kept on enforcing the  P. & O. ruling. O.  ruling. The courts continued to distinguish between sovereign and non  –  sovereign   sovereign functions of the government for purposes of governmental liability. In the case of  Maharaja Bose v. Governor  –   General in Council 7 , the Government was held liable for tortious action of a railway servant committed by him within the course of his employment as running of railways was held to be not in exercise of sovereign powers. Railways were held to be a “commercial undertaking, an undertaking which a private individual can can equally well undertake, an undertaking not in exercise of sovereign powers.” FURTHER DEVELOPMENTS IN THE LAW:

a. Transportation: A large number of cases have occurred pertaining to claims of damages against the State by individuals for injuries caused to them due to negligence of the drivers of the State transport. As stated by the Supreme Court in the case of State of 6

 IA, Suppl. Vol. 55.

7

 AIR 1952 Cal 242. 13

 Rajasthan v. Vidhyawati 8 , the State was held liable for the accident caused by the driver of a jeep owned and maintained by the State for the official use of the collector. Similar are the judgments of various High Courts and the Supreme Court in various cases concerning the state liability, in light of the Vidhyawati9 case. In the case of Annamalai of Annamalai v. Abithakujambal 10, a person was killed in an accident with a jeep driven by a government employee during the scope and course of his employment. Hence, the court held that the government was to be held liable to pay damages to the widow of the deceased on the principle of vicarious liability for fo r its servant‟s tortious act, as driving a jeep is a non –  non –  sovereign  sovereign function, since any person can drive a jeep.  b. Railways: In the case of Chairman, Railway Board v. Chandrima Das 11, a Bangladeshi woman was gang raped by several railway employees in  yatri niwas  niwas  attached to a railway station. The court ruled that running of railways has been characterised as a commercial activity. Establishing  yatri niwas  niwas  at various railway stations to provide lodging and boarding facilities to passengers on payment of charges is regarded as a  part of the commercial activity of the Government of India and such an activity cannot be equated with the exercise of sovereign power. c. Military Vehicles: In several cases, the government has been held liable to pay compensation for injuries caused by negligent driving of military vehicles engaged in doing various odd  jobs. The test applied is not that a military vehicle was involved in an accident, but the  purpose on which the vehicle was employed and whether that purpose could be characterized as „sovereign‟. If not, the government would become vicariously liable for the torts of its servants.

8

9

 AIR 1962 SC 933 : 1962 Supp (2) SCR 989. State of Rajasthan v. Vidhyawati, Vidhyawati , AIR 1962 SC 933 : 1962 Supp (2) SCR 989.

10

 AIR 1979 Mad 276.

11

 AIR 2000 SC 988 : 2000 CrLJ 1473 : JT 2000 (1) SC 426. 14

Similarly, in the case of Satyawati v. Union of India 12, no „sovereign‟ function was held to be discharged when a military vehicle carrying hockey and basket ball teams to an Indian Air Force station to play matches against the Indian Air Force, met with an accident due to the negligence of the driver, and a person was killed and hence the state was not entitled entitl ed to claim immunity for the tortious act of its employee. d. Government Hospitals: In the case of  M. Vijaya v. Chairman and Managing Director, Singrani Collieries Co. Ltd. 13 , the appellant was awarded compensation by the court for negligent transfusion of HIV infected blood in a government hospital. e. Torts against Property: The government was held liable under the general principles of law of torts in the case of State of Punjab v. Modern Cultivators 14, where the plaintiff brought a suit for compensation against the State Government for the damage caused to his land and crops due to inundation as a result of breach in canal maintained by the government under the Northern India Canal and Drainage Act, since the breach had been caused  by the negligence of the government government employees.

f. Torts against Person: Art. 21 of the Constitution of India plays a very important role in this part, since it means right to live with human dignity and this includes a guarantee against. In the case of Chairman, Railway Board v. Chandrima Das

15

, where a

Bangladeshi woman was gang raped by railway employees in the  yatri niwas attached niwas attached to a railway station, the Supreme Court ruled that rape is an offence which is violative of the Fundamental Right of a person under Art. 21. It violates the most cherished

12

 AIR 1967 Del 98. Union of India v. P. S. Mahal , Mahal , AIR 1976 J&K 80.

13

 AIR 2001 AP 502.

14

 AIR 1965 SC 17 : 1964 (8) SCR 273.

15

 AIR 2000 SC 988 : 2000 CrLJ 1473 : (2000) 2 SCC 465. 15

rights of the victim, viz., the right to live with human dignity contained in Art. 21. The Court also ruled that the protection of Art. 21 extends not only to the citizens of India but even to foreigners who come to India merely as tourists or in any other capacity, and hence the Court awarded compensation to the concerned person. The cases of Rudul of  Rudul Shah v. State of Bihar, 16  Sebastin M. Hongray v. Union of  India, 17  Bhim Singh v. State of Jammu & Kashmir 18 and SAHELI a Woman’s  Resources Centre v. Commr. of Police, Delhi, Delhi,19  also lead to the inference that the defence of sovereign immunity is not available when the State or its officers acting in the course of their employment infringe a person‟s fundamental right  right   of life and  personal liberty as guaranteed by Art. 21 of of the Constitution. g. Failure to maintain Law and Order: In the case of Inder of  Inder Puri General Stores v. Union of India I ndia20, loss of property was caused to the petitioners in a communal riot in Jammu. The Government made an ex gratia  payment of Rs. 25,000 as compensation to the petitioners whereas the government appointed expert committee had assessed the loss at a much higher figure. Directing the Government to pay adequate compensation to the petitioners for the loss suffered by them, the High Court pointed out that the maintenance of law and order is the duty of a responsible government; it cannot abdicate this function and put the life and liberty of the citizens in jeopardy. h. Police Lawlessness: A significant pronouncement in this line of cases is Nilabati is  Nilabati Behera v. State of Orissa21, where the Supreme Court had awarded a compensation of Rs. 1,50,000 to the widow of a person who had died in police custody as a result of injuries inflicted on him because of the police. The Court explained the basis on which the liability of 16

 AIR 1983 SC 1086 : 1983 CrLJ 1644 : (1983) 4 SCC 141 : (1983) 3 SCR 508.

17

 (1984) 3 SCC 82 : AIR 1984 SC 1026.

18

 (1985) 4 SCC 677 : AIR 1986 SC 494 : 1986 All LJ 653 :1986 CrLJ 192.

19

 AIR 1990 SC 513 : AIR 1984 SC 1026 : (1990) 1 SCC 422.

20

 AIR 1992 J&K 11.

21

 AIR 1993 SC 1960 : (1993) 2 SCC 746 : 1993 CrLJ 2899. 16

the State arises in such cases like custodial death, police atrocities etc.) for payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in an action of tort. The award of compensation in a  proceeding under Art. 32 or Art. 226 of the Constitution is a remedy available in  public law, “based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. I.Statutory functions of officials: Formerly, the principle was followed that the state would not be vicariously liable for acts of its servants performed by them in pursuance of a power conferred on them by a statute. This was on the basis that the rule embodied in the maxim “respondent superior” is superior”  is subject to the well recognized exception that a master is not liable for the acts of his servant performed in the discharge of a function conferred on him by law. As it was held in the case of Tobin v. The Queen 22 , where a function is conferred by law directly on the employee, the employer cannot be said to have legal control over him in the discharge of that function and, accordingly, the employer cannot be held liable for the wrongs committed by the employee during the course of discharging that function. In such a case, the general law of agency has no application. However, the official himself may be personally liable for the torts he commits. Similarly, in the case of Ross of  Ross v. Secretary of State23, the Secretary of State was held not liable for the wrongful acts of the district magistrate done by him in the exercise of statutory authority. J.Negligence of municipal bodies:

22

 143 ER 1148. Also, Nieraha Also,  Nieraha v. Baker , 1901 AC 561; Stanbury v. Exeter Corporation, Corporation , (1905) 2 KB 839.

23

 AIR 1915 Mad 434. 17

Municipal bodies are statutory bodies discharging many functions of public interest. In a number of cases, the courts have held such bodies liable to pay compensation for the tortious acts of their servants. In the case of Venkatesh v. The City Municipal Council 24 , where the municipality had demolished some buildings belonging to the plaintiff for the purpose of broadening a road without taking any action to acquire the buildings under the Land Acquisition Act, the court had awarded damages to the plaintiff to compensate him for the injury sustained by him for the tortious act of the municipality. a. Government Companies: The government sets up a number of statutory corporations or bodies incorporated under the Companies Act. Most of these bodies are engaged in carrying commercial enterprises. Actions for damages against such bodies for tortious acts of their servants are not covered by Art. 300 of the Constitution and therefore the  principles of the general law of torts are applicable to them to the same extent as to any corporate body. Thus, in  National Small Scale Industries Corpn. v. Bishambhar  Nath25, the corporation was held liable for the damage caused to the building of the respondent [of which the corporation was a tenant] due to the negligence of the employees of the corporation. POSITION IN BRITAIN

Before 1947, the Crown enjoyed immunity from tortious liability under the common law because it was believed that the neither any wrong could be imputed to the King and nor could he authorize any wrong, and as such, the King could not be held responsible for the negligence or misconduct of his servants. Moreover, as per one of the aspect of the doctrine of immunity, it was regarded as an attribute of sovereignty that the state could not be sued in its own courts without its consent. To mitigate the injustice arising out of the immunity rule, the government would pay compensation in proper cases by settling the matter with the injured party. However,

24

 AIR 1975 Knt 62.

25

 AIR 1979 All 35. 18

as it was decided in the case of Tamlin v. Hannaford 26 , statutory corporations were held liable for torts. Hence, the position was accordingly changed by the Parliament enacting the Crown Proceedings Act, 1947, which makes the Crown in principle liable for torts to the same extent as a private person of full age and capacity subject to such exception, inter alia,  alia,  as defence of the realm, armed forces and postal services. The Crown thus becomes vicariously liable o a very large extent for the torts committed by its servants.

CONCLUSION

It is therefore concluded that the present state of the law relating to liability of the State in tort in India, it is apparent that the law is neither just in its substance, nor satisfactory in its form. It denies relief to citizens injured by a wrongful act of the State, on the basis of the exercise of sovereign functions –  functions  –  a  a concept which itself carries a flavour of autocracy and high-handedness. In other words when a state is exercising sovereign functions of its own, it cannot be sued. The rule of liability of the State for torts of its servants as laid down in the Steam Steam Navigation's case is very out-moded. In the modern age when the activities of the State have vastly increased, it is very difficult to draw a distinction between sovereign and non-sovereign functions of the State. The increased activities of the State have made a deep impact on all facts of an individual's life, and therefore, the liability of the State should accordingly be made co-extensive with its modern role of a welfare State and not be confined to the era of individualism. SUGGESTION

In view of uncertainty as to State Liability, there has to be a proper legislation relating to the liability of the state for it‟s tortuous acts. A political organisation which is set up to protect its citizens and to promote their welfare, should, as a rule, accept legal liability for its wrongful acts, rather them denounce such liability. Exceptions can be made for exceptional cases  –   but the exceptions should be confined to genuinely extraordinary situations.

26

 (1951) 1 KB 18. 19

BIBLIOGRAPHY

Statutes Referred: 1. The Constitution of India

Books Referred: 1. Principles of Administrative Law –  Law  –  M.  M. P. Jain and S. N. Jain, Sixth Edition, Wadhwa  Nagpur Publications. 2. Administrative Law  –   I.P. Massey, Seventh Edition, Eastern Book Company Publications.

Web-sites referred: 1. www.westlaw.com 2. www.lexisnexis.com 3.

www.indiakannon.com

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