US
LIABILITY
OF STATE
Submitted by: Zaheen
Roll no: 118/14
BA LLB, Sec: B
Submitted to: Ms. Anju
1. Jhnbkh
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Index
List of cases
11.
Union of India v. Bhagwati Prasad Mishra A.I.R. 1957 Madh. Pra. 159.
12.
13.
Shyamal Baran Saha v. State of West Bengal A.I.R. 1998 Cal. 203.
14.
15.
16.
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Introduction
ii.
iii.
iv.
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POSITION IN ENGLAND
In common law, the crown could not be sued in tort either for wrong authorized by it
or committed by its servants in course of employment. Moreover no action could lie
against the head of the department or other superior officials for the act of their
subordinates for relationship between them was not master and servant but of
fellow servants. The individual wrongdoer was personally liable and he could not
take defence of orders of Crown, or state necessity. The immunity of the Crown from
liability did not exempt the servant from liability. The result was that, whereas an
ordinary master was liable vicariously for the wrong done by his servant, the
government was not liable for a tort committed by its servant. 1
The maxim of the common law was the King can do no wrong 2 and, therefore, no
action in tort was possible against the crown either for wrongs which has expressly
authorized or for wrongs committed by its servants in the course of their
employment.3 The actual wrongdoer acting on behalf of the Crown did not enjoy this
exemption but while he personally could be sued, his superior officers could not, for
he would not be their servant, but like them the servant of the Crown.45
With the increase in the functions of the state, the crown became one of the largest
employers of labour in the country. Under these circumstances, the rule of
immunity for the Crown became highly incompatible with the demands of justice. To
overcome the shortcomings of the prevailing law and to ensure justice, various
devices were found out. The Parliament intervened by enacting the Crown
Proceeding Act, 1947, which into force on January 1, 1948. Hence the very citadel
of the absolute rule of sovereign has now been blown up. Section 2(1) provides as
follows-Subject to the provisions of this Act, the Crown shall be subject 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 committed by its servants or agents, subject to
other provisions in this Act. As already pointed out, the law applicable to India with
1 R.K. Bangia at 132
2 Hale, P.C. Vol. 1 at 43
3 Canterburry (Viscount) v. Att. Gen., 1842, 1 Ph. 305.
4 Bainbridge v. P.M.G., 1906, 1 K.B. 178.
5 Law of torts by Sinha at 98
Act of 1935
Even when the Government of India Act, 1935, was enacted, (replacing the Act of
1915), the same legal position was continued by section 176(1) of the Act which read
as follows:
The Federation may sue or be sued by the name of the Federation of India and a
Provincial Government may sue or be sued by the name of Province, and, without
prejudice to the subsequent provisions of this Chapter, may, subject to any
provisions which may be made by an Act of the Federal or a Province legislature
enacted by virtue of powers conferred on that legislature by this Act, sue or be sued
in relation to their respective affairs in the like cases as the Secretary of State in
Council might have sued if this Act had not been passed.
Act of 1915
This very provision was practically contained in section 32 of the Government of
India Act, 1915. Sub-sections (1) and (2) of that section read as follows:
(1)
The Secretary of State in Council may sue and be sued by the name of the
Every person shall have the same remedies against the Secretary of State in
Council as he might have had against the East India Company, if the Government of
India Act 1858 and this Act have not been passed.
Under the act of 1833,7 enacted by the British Parliament, the governance of India
was entrusted to the East India Company. The Act declared that the Company held
the territories in trust for His Majesty, his heirs and successors.
Resultant position
Thus, Article 300 of the Constitution practically takes us back to the Act of 1858,
which, in its turn, leads us to a consideration of the nature and extent of the
liability of the East India Company.
A consideration of the pre- Constitution cases begins with judgement of the
Supreme Court of Calcutta in the case.
held as under:
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licence for the sale ganja and had committed breach of contract. The High Court
i.
ii.
Even if there was breach of contract, the act was done in exercise of sovereign
power and, therefore it was not actionable. The High Court expressly followed
the P & O ruling.
idjuewjs
Law of torts- Salmond
The Crown
There is no remedy against the crown for a tort. For any violation by the crown of
the rights of subjects the appropriate remedy, if there is one at all, is not an action
but a petition of right. This remedy, however, is limited in its scope, and is not
available in cases of tort. The crown cannot be charged with negligence, fraud or
other forms of tortuous wrongdoings, nor is it responsible for the acts of its agents
and servants. The rule is subject to the following qualifications:a) A petition of right will lie against the Crown for the recovery of damages for
the breach of contract; and not the less so, it is presumed, because that
breach of contract is also a tort.
b) A petition of right will lie against the Crown for the specific restitution of
property wrongfully detained in the possession of the Crown; or for the value
of such property, when the Crown has had the benefit of it and specific
restitution is impossible.
The only cases, it has been said, in which the petition of the right is open to
the subject are where the land or goods or money of a subject have found their way
into the possession of the Crown, and the purpose of the petition is to obtain
restitution, or if restitution cannot be given, compensation in money; or where the
claim arises out of contract, as for goods supplied to the Crown or to the public
service
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The law on this topic has been greatly changed by the Crown Proceedings Act,
1947 which came into force on January 1, 1948. It applies to torts committed on or
after February 13, 1947 (Section 12).
Section 2(1) provides as follows-Subject to the provisions of this Act, the
Crown shall be subject to all those liabilities in tort to which, if it were a private
person of full age and capacity, it would be subject:
a) 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;
b) In respect of any breach of the duties attaching at Common Law to the
ownership, occupation, possession or control of property.
Section 2(2) renders the Crown liable for breach of statutory duty, provided
the duty binds persons other than the Crown, s well as the Crown itself, and that
breach of duty renders them liable in tort.
Section 2(3) provides that where functions are conferred by law directly on an
officer of the Crown, he is regarded for the purpose of the section as if he were
acting under the Crowns instructions.
Section 2(4) gives the Crown benefit of any statute regulating or limiting the
liability of a Government Department or Crown Officer.
Section 2(5) excludes proceedings against the Crown for acts done by any
person while discharging or purporting to discharge any responsibilities of a
judicial nature vested in him or any responsibilities which he has in connection with
the execution of judicial process.
Subject to the reservation of certain statutory rights, Section 3 provides for
proceedings against the Crown for infringement by a Crown servant or agent, with
the authority of the Crown, of a patent, registered trade mark or copyright.
Section 4 applies to the Crown the law relating to indemnity and contribution.
Although the most important purpose of the act is to make the Crown liable
and to put him in the same position as a private person but it i quite clear that
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