SUITS BY AND AGAINST THE STATE

Subject Law of Torts

Submitted to Prof.M.Sridhar Acharyulu Professor of Law

Submitted by Pallavi Dutta Roll no 42 Ist Year, Ist Semester

National Academy for Legal Studies and Research University of Law, Hyderabad

TABLE OF CONTENTS

1.INTRODUCTION1 2.RESEARCH METHODOLOGY.2 3.KASTURILAL RALIA RAM JAIN v. STATE OF UTTAR PRADESH...3 4. STATE OF ANDHRA PRADESH v. CHALLA RAMKRISHNA REDDY & ORS 5.N.NAGENDRA RAO & CO.v. STATE OF ANDHRA PRADESH.. 6.ACHUTRAO HARIBHAU KHODWA AND OTHERS v. STATE OF MAHARASHTRA AND OTHERS 7. STATE OF RAJASTHAN v. MST VIDHYAWATI AND ANR 8.CONCLUSION 9.BIBLIOGRAPHY

1. Introduction

One of the oldest and most fundamental principles of English Common Law was that the King could do no wrong. A correct inference to this would be that neither could his servants i.e. servants of the State. But in subsequent years the duties discharged by the State rose in number and eventually the Crown Proceedings Act was passed by which now the State could be held liable for the torts committed its servants. In India tortious liability of the State is elucidated in Article 300. of the Constitution of India, which says that the Union of India and States of the Union are juristic persons and that they can sue and be sued.1

Article 300 reads as: (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 any may, subject to any provision 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 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.

1.1 Research Methodology

1

Ratanlal and Dhirajlal, THE LAW OF TORTS, 24TH edition, Wadhwa & co, p. 42

The researcher has adopted the doctrinal form of research in completing this project. As the project is primarily a case study on Suits By and Against the State, the doctrinal form of research was most appropriate. Primary as well as secondary sources of information have been used from the NALSAR Law Library. The above category of material consists of law reporters such as AIR and SCC .Also, secondary soft copy sources of information have been perused from online database Manupatra,. No part of this project is plagiarized and it is the original work of the researcher.

2. KASTURILAL RALIA RAM JAIN v. STATE OF UTTAR PRADESH AIR 1965 SC 1039

2.1 LEGAL PRINCIPLE : Acts done in the course of employment by officers and servants of the Government are protected from claims of tortious liability by the Doctrine of Sovereign Immunity.

2.2 FACTS : The appellant was a partner in a firm that dealt in bullion and other goods in Amritsar,registered under the Indian Partnership Act. On the 20th September, 1947 Ralia Ram arrived at Meerut by the Frontier Mail about midnight. His object in going to Meerut was to sell gold, silver and other goods in the Meerut market. Here he was taken into custody by three police constables and his belongings searched, after which he was confined to a police lock up and his belongings which consisted of gold, weighing 103 tolas 6 mashas and 1 ratti, and silver weighing 2 maunds and 6 1/2 seers, were seized from him and kept in police custody.On 21st September, 1947 the appellant was released on bail and his silver was returned to him.The appellant then made repeated demands for the gold which had been seized from or its equivalent pecuniary compensation. This claim was however resisted by the respondent on several grounds. It was made known that neither the gold nor its monetary equivalent could be given. The respondent alleged that the gold in question had been taken into custody by one Mohammad Amir, who was then the Head Constable, and it had been kept in the police Malkhana under his charge. Mohd. Amir, however, misappropriated the gold and filed away to Pakistan on the 17th October, 1947. He had also misappropriated some other cash and articles deposited in the Malkhana before he left India. The respondent further alleged that a case under section 409 of the Indian Penal Code as well as s. 29 of the Police Act had been registered against Mohd. Amir, but nothing effective could be done in respect of the said case because in spite of the best efforts made by the police department, Mohd. Amir could not be apprehended.This led to the present suit being filed by the appellant.

2.3 ISSUES : 1. Were the police officers in question guilty of negligence in the matter of taking care of the gold which had been seized from Ralia Ram?

2. Was the respondent liable to compensate the appellant for the loss caused to him by the negligence of the public servants employed by the respondent?

2.4 CONTENTIONS : 1. The appellant argued that it was impossible to deny the negligence of the police officers in their handling of the seized property. Not only was the property not kept in safe custody in the treasury, but the manner in which it was dealt with at the Malkhana shows gross negligence on the part of the police officers. A list of articles seized does not appear to have been made and there is no evidence that they were weighed either. It is true that the respondent's case is that these goods were misappropriated by Head Constable Mohd. Amir; but that would not assist the respondent in contending that the manner in which the seized property was dealt with at the police station did not show gross negligence.

2. The respondent challenged the correctness of this allegation by stating that no negligence had been established against the police officers in question and that even if it was assumed that the police officers were negligent and their negligence led to the loss of gold, that would not justify the appellant's claim for a money decree against the respondent.

2.5 JUDGEMENT : 1. The High Court reversed the judgement of the trial court by dismissing the appellants appeal and not awarding him any damages on the grounds that the power to arrest a person, to search him, and to seize property found with him, are powers conferred on the specified officers by statute and in the last analysis, they are powers which can be properly characterised as sovereign powers; and so, there is no difficulty in holding that the act which gave rise to the present claim for damages has been committed by the employee of the respondent during the course of its employment; but the employment in question being of the category which can claim the special characteristic of sovereign power, the claim cannot be sustained.

3. STATE OF ANDHRA PRADESH v. CHALLA RAMKRISHNA REDDY & ORS. AIR 1989 AP 235

3.1 LEGAL PRINCIPLE : The Fundamental Right to Life under Article 21 of the Constitution is guaranteed to every citizen including prisoners and convicts and cannot be contravened by the Doctrine of Sovereign Immunity.

3.2 FACTS : The respondent, Challa Ramkrishna Reddy and his father, Challa Chinnappa Reddy were involved in Criminal Case No. 18/1997 of Owk Police Station in Baganapalle Taluk of Kurnool District.They were remanded in judicial custody on 26th April 1977 after being arrested on 25th April of the same year, and were lodged in Cell No. 7 of Sub-jail, Koilkuntla. In the night between 5th and 6th of May, 1977, at about 3.30 A.M., some persons entered the premises of Sub-jail and hurled bombs into Cell No. 7 as a result of which Challa Chinnappa Reddy sustained grievous injuries and died subsequently in Government hospital, Kurnool. His son Challa Ramakrishna Reddy who was also lodged in Cell No. 7, however, escaped with some injuries.Consequently, the appellant, his mother and his other four brothers filed a suit against the State of Andhra Pradesh. The contentions were accepted by the trial court and the suit was dismissed. On appeal, the suit was decreed by the High Court for a sum of Rs. 1,44,000/-with interest at the rate of 6 per cent per annum from the date of the suit till realisation. It is this judgment which is challenged in this appeal.

3.3 ISSUES : 1. To what extent was the State immune from liability with respect to its sovereign acts? 2. Since prisons are maintained by the State in lieu of maintaining law and order, are suits for compensation in case of custodial deaths un- maintainable?

3.4 CONTENTIONS : 1. The Counsel for the State of Andhra Pradesh contended that the suit was barred by time as the period of limitation, as provided by Article 72 of the Limitation Act, 1963 was only one year and since the act complained of took place in the night intervening 5th and 6th of May, 1977, the suit which was instituted on 9th of June, 1980, was barred by time. 2. Counsel appearing on behalf of the respondents on the other hand, contended that the period of limitation would be governed by Article 113 of the Limitation Act, 1963 which prescribed a period of three years from the date on which the right to sue accrued. It is contended that Article 113 was the residuary Article and since the nature of the present suit was not covered by any other Article of the Limitation Act, it would be governed by the residuary Article , namely, Article 113 and, therefore, the suit, as held by the High Court, was within limitation. 3.5 JUDGEMENT : 1. The Court while giving the judgement stated that, there had been a number of cases where compensation had been awarded to those who had suffered personal injuries at the hands of governmental officers including the police. The learned judges also said that the instance of KASTURILAL RALIA RAM JAIN v. STATE OF UTTAR PRADESH2 was now regarded as an example of miscarriage of justice was no longer of a binding value. 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. In lieu of the aforementioned reasons, the appeal was dismissed.

AIR 1965 SC 1039

4. N.NAGENDRA RAO & CO.v. STATE OF ANDHRA PRADESH AIR 1994 SC 2663

4.1 LEGAL PRINCIPLE : If a citizen is injured, when public servants are exercising their statutory duty, the state would be held liable.

4.2 FACTS : The appellant traded in fertiliser and foodgrains, and had the necessary licences issued.Following a report by a police inspector of the Vigilance Cell, large stocks of fertilisers, foodgrains and non essential commodities were seized from his premises on the pretext that it should be distributed to needy ryots and the foodgrains and non essential goods should be kept in custody of the Assistant Agricultural Officer for immediate disposal and the sale proceeds should be kept in the treasury.The appellant pleaded that the goods seized would perish and would result in great loss.Keeping this in mind the Collector passed an order, ordering the release of the goods.The same was upheld by the Sessions Judge, however despite the Collectors order and the Order passed in appeal by the Sessions Judge the Assisstant Agricultural Officer refused to release the goods.

4.3 ISSUES : 1. Was the State vicariously liable for the negligence of its officers in discharge of their statutory duties?

4.4 CONTENTIONS : 1. The state put forward the defence of sovereign immunity wherein, the state in during the discharge of its statutory duties could not be held liable by way of a tortious act.

4.5 JUDGEMENT : 1. The Supreme Court in this case applied the principle of public policy whereby the Court

is required to exercise its power to compensate owners of goods where loss or damage has occurred due to lapse on part of its officers.Extending the doctrine of vicarious liability in torts to the state, the Court refused to accept the defence of sovereign immunity as propounded by the respondent and ruled in favour of the appellant.

5. ACHUTRAO HARIBHAU KHODWA AND OTHERS v. STATE OF MAHARASHTRA AND OTHERS AIR 1996 SC 2377

5.1 LEGAL PRINCIPLE : The State is not protected by the defence of Sovereign Immunity in the case of establishments where it derives commercial benefits such as hospitals.

5.2 FACTS : The case of the appellants was thus, the deceased, one Chandrikabai was admitted in the Civil Hospital, Aurangabad on 10th July, 1963, for delivery of a child. This maternity hospital is attached to the Medical College at Aurangabad and respondent No. 2 was working in the department of Obstetrics and Gynaecology as a doctor and it is she who attended on Chandrikabai. Respondent No. 3 was the Medical Officer of the said hospital while respondent No. 4 was the Dean of Medical College, Aurangabad. Chandrikabai delivered a male child on 10th July, 1963. As she had got herself admitted to this hospital with a view to undergo a sterilisation operation after the delivery, the said operation was performed by respondent No. 2 on 13th July, 1963. Soon thereafter Chandrikabai developed high fever and also had acute pain which was abnormal after such a simple operation. Her condition deteriorated further and on 15th July, 1963 appellant No. 1 approached respondent No. 3 and one Dr. Divan, PW-2, who was a well-known surgeon and was attached to the hospital, but was not directly connected with the Gynecological department. At the insistence of appellant No. 1 Dr. Divan examined Chandrikabai on 15th July 1963, and seeing her condition, he is alleged to have suggested that the sterilisation operation which had been performed should be re-opened. This suggestion was not acted upon by respondent Nos. 2 and 3 and the condition of Chandrikabai become very serious. On 19th July, 1963, Dr. Divan, on being called once again, re-opened the wound of the earlier operation in order to ascertain the true cause of the seriousness of the ailment and to find out the cause of the worsening condition of Chandrikabai. According to the appellants, respondent Nos. 2 and 3 assisted Dr. Divan in this operation. Dr. Divan, as a result of the second operation, found that a mop (towel) had been left inside the body of Chandrikabai when sterilisation operation was performed on her. It was found that there was collection of pus and the same was drained out by Dr. Divan. Thereafter, the abdomen was closed and the second operation completed. Even, thereafter the condition of Chandrikabai did not improve and ultimately she expired on 24th July 1963. Alleging that Chandrikabai was working as a teacher

in a government school and her salary augmented the total income of the family, it was pleaded that the death of Chandrikabai was caused due to the negligence of respondent No. 2 who had performed the sterilisation operation on 13th July 1963, as well as the irresponsible behavior of respondent No. 3. The appellants also alleged that the hospital lacked adequate medical aid and proper care and there was gross dereliction of duty on the part of the officers of the Government Civil Hospital which directly resulted in the death of Chandrikabai and, therefore, the appellants were entitled to recover damages from the Government of Maharashtra (respondent No. 1) as well as respondent Nos. 2 to 4.

5.3 ISSUES :

1. Do plaintiffs prove that the defendant No. 2 performed the operation without due care, attention and caution and in the most negligent manner ? 2. Do plaintiffs prove that a mop was left in the abdomen of the deceased Chandrikabai during the first operation, and if so, do plaintiffs further prove that it was so left as a result of negligence, lack of care and insufficient diligence in the operation performed by defendant No. 2 ? 3. Do plaintiffs prove that as a result of the mop remaining inside the body of Chandrikabai during the first operation by defendant No. 2, a severe pain was caused to her deteriorating her health and that the said mop disturbed the internal organism of the body and resulted ultimately in the death of Chandrkabai on 24th July 1963." 4. Do plaintiffs prove that the defendants No. 2 and 3 did not take proper care of Chandrikabai in the post operation stage? 5. Do plaintiffs prove that the defendant No. 4 also did not take any proper and necessary steps when he was instructed about the pain received by Chandrikabai ? 6. Do they prove that there was mismanagement and careless behaviour in the hospital and negligence by defendant No. 3 in the removal of the same and that it aggravated the situation resulting in the death of Chandrikabai ? 7. Do the plaintiffs prove that the death of Chandrikabai was caused due to failure of duty on the part of hospital authorities and their dereliction of duty and hence all defendants are liable for the same ?

8. Do plaintiffs prove the various details of compensation? 9. To what amount are plaintiffs entitled on account of damages?

5.4 CONTENTIONS : 1. In support of their case, the appellants relied upon the evidence of one ,Dr. Divan, who said that Chandrikabais condition was attributed to post operative peritonitis which was due to a mop left inside the peritoneal cavity and caused inflammation, from which recovery was difficult. 2. All allegations of negligence were specifically denied. In addition thereto, respondents 2 and 3 filed separate written statements in which they also denied any negligence on their part. Respondent No. 2 denied having left any mop in the abdomen of Chandrikabai and, in the alternative, pleaded, that even if such a mop was left inside the body, the same could not have, either directly or remotely, caused the death. Respondent No. 3 also denied the recovery of the mop from the abdomen and generally supported the case of the other respondents.

5.5 JUDGEMENT : The Supreme Court said the claim of the appellants cannot be defeated merely because it may not have been conclusively proved as to which of the doctors employed by the State in the hospital or other staff acted negligently which caused the death of Chandrikabai. Once death by negligence in the hospital is established, as in the case here, the State would be liable to pay the damages. In our opinion, therefore; the High Court clearly fell in error in reversing the judgment of the trial court and in dismissing the appellants' suit. For the aforesaid reasons, this appeal was allowed, the judgment of the High Court of Bombay under appeal is set aside and the judgment and decree of the trial court is restored. The appellants were also be entitled to costs throughout.

6. STATE OF RAJASTHAN v. MST VIDHYAWATI AND ANR AIR 1962 SC 933

6.1 LEGAL PRINCIPLE : The extent of the vicarious liability of Government for the tortious acts of its employees, acting in the course of their employment as such.

6.2 FACTS : The first defendant Lokumal, was a temporary employee of the appellant State, as a motor driver on probation. In February, 1952, he was employed as the driver of a Government jeep car, registered as No. RUM 49, under the Collector of Udaipur. The car had been sent to a workshop for necessary repairs. After repairs had been carried out, the first defendant, while driving the car back along a public road, in the evening of February 11, 1952, knocked down one Jagdishlal, who was walking on the footpath by the said of the public road in Udaipur city, causing him multiple injuries, including fractures of the skull and backbone, resulting in his death three days later, in the hospital where he had been removed for treatment. The plaintiffs who are Jagdishlal's widow and a minor daughter, aged three years, through her mother as next friend sued the said Lokumal and the State of Rajasthan for damages for the tort aforesaid. They claimed the compensation of Rs. 25,000/- from both the defendants. The first defendant remained ex-parte. The suit was contested only by the second defendant on a number of issues. The Trial Court dismissed the claim for compensation as against the State of Rajasthan, which was the second defendant in the suit for damages for tortious act of the first defendant.This is an appeal against the decree of the Trial Court.

6.3 ISSUES ; 1. Under Art. 300 of the Constitution, the State of Rajasthan, was not liable as the corresponding Indian State would not have been liable if the case had arisen before the Constitution came into force.

2. That the jeep car, the rash and negligent driving of which led to the claim in the suit was being maintained "in exercise of sovereign power" and not as part of any commercial activity of the State?

6.4 CONTENTIONS : 1. The plaintiffs demanded compensation from the State of Rajasthan on the ground that first defendant was rash and negligent in the act of driving which ultimately resulted in the death of the plaintiffs husband, in lieu of the first defendant being an employee of the government. 2. The respondents argued that though the car in question was in the service of the Collector, who happens to be an employee of the State, at the time of the accident the car was not being used to discharge any duties of the State.

6.5 JUDGEMENT : 1. The Appeal was dismissed by the Rajasthan High Court on the grounds that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such as any other employer.

7. PUSHPA THAKUR v. UNION OF INDIA AIR 1986 SC 1199

7.1 LEGAL PRINCIPLE : Carrying on of war is a sovereign function it is incorrect to say that in all cases when a tort is committed by a member of the defence services in the course of employment, the State would succeed in pleading its immunity.

7.2 FACTS : A military truck coming from Delhi went to the wrong side of the road and hit a culvert because of the negligence of the driver. Four people who were seated on the culvert sustained severe injuries, the plaintiff an unmarried girl of 23 fractured both her legs and had had to have the right one amputated. The truck belonged to the First Division which had been stationed at Ferozepur during the Indo Pak war of 1971.It was on its ways back to Jhansi when the accident occurred. The plaintiff consequently sued for damages.

7.3 ISSUES : 1. The truck belonged to the military whose primary function is that of defense of the State which is a sovereign function. In such a case the defense of sovereign immunity could be invoked? 7.4 CONTENTIONS : 1. The respondents argued on grounds of sovereign immunity, whereby since the truck was in the course of duty carrying out the orders of the State, it was protected from all liability. 7.5 JUDGEMENT : The High Court dismissed the claim of the plaintiff on grounds of sovereign immunity and did not hold the state liable. The Supreme Court negatived this and held that the truck was not performing a routine duty directly connected to the function of defence, a traditional sovereign function, hence the plea of sovereign immunity was rejected and compensation amounting to the sum of 1,00,000 was granted to the plaintiff along with interest.

8. NALINI KANT SINHA v. STATE OF BIHAR AND OTHERS AIR 1993 SC 1358 8.1 LEGAL PRINCIPLE : The State is liable to compensate for the wrongful denial of claims but is not liable to compensate for mental anguish suffered as it is not a legal claim allowable in law. 8.2 FACTS : The plaintiff was a Deputy Secretary to the Government of Bihar. However he was denied promotion to the post of Joint Secretary and a junior was promoted in his place and was given the salary that the post had to offer. The Government later realised its mistake and promoted the plaintiff but refused to pay him the difference in salary, as they argued that rules did not permit the award of difference as the plaintiff had not worked on the post of promotion before his actual promotion. Hence the promotion was only notional. The plaintiff consequently sued the respondent State for compensation on this account and also for compensation for the mental anguish he suffered because of the wrongful denial of promotion. 8.3 ISSUES : 1. Could the Government deny the plaintiff the difference in salary on grounds of such rules? 2. Could the plaintiff recover damages not only on grounds of denial of salary but also for the mental anguish he suffered on account of it? 8.4 CONTENTIONS : 1. The plaintiff demanded the difference in salary that was denied to him along with additional compensation for his state of mind that followed the denial of that difference. 2. The respondents argued that statutory rule do not permit the payment of the difference of salary in such cases on retrospective notional promotion. Explaining the circumstances under which the said junior employee was paid, it was stated, that the payment was the result of a mistake and that, having regard to the circumstances of the case, the Government did not initiate proceedings for the recovery of the amount. 8.5 JUDGEMENT : The Court in this case directed the respondent State to pay the petitioner the actual quantum of the difference but the claim for compensation with respect to the alleged mental agony suffered that arose from the denial of promotion was dismissed on grounds of there being no legal claim.

8. CONCLUSION :

To conclude it would be correct to say that in the sphere of tortious acts the State can be held liable and made to pay damages in the capacity of a juristic person a stated above.Though the State can claim sovereign immunity, but this defence holds no water if actions of the State come into conflict with an individuals Fundamental Rights. Even in those cases where the State is protected from vicarious liability on the doctrine of sovereign immunity, the public servant committing the tort is not.It is also no defence for the public servant to say that the wrong was committed in the course of discharging some statutory function or carrying out the orders of superiors. Section 80 of the Civil Procedure Code states that : Save as otherwise provided in sub-section (2), no suits shall be instituted against the Government (including the Government of the State of Jammu & Kashmir) or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of? (a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government; (b) in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway; (bb) in the case of a suit against the Government of the State of Jammu and Kashmir the Chief Secretary to that Government or any other officer authorised by that Government in this behalf; (c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district; and, in the case of a public officer, delivered to him or left at this office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. The two months notice is given so that the aggrieved individuals may sort out their differences with the State so as to prevent them from going to Court.

9.BIBLIOGRAPHY

1. Ratanlal and Dhirajlal, THE LAW OF TORTS, 24TH edition, Wadhwa & co. 2. Rakesh Kumar, LL.M., Doctrine Of Constitutional Tort : Evolution And Evaluation 3. Dr.M.Sridhar Acharyulu, Materials and Cases on 1.2 Law of Torts, BA, LLB (Hons) Websites: 1. www.manupatra.com 2. www.google.com 3.www.legalservicesindia.com