Abdul Kadir Ibrahim vs Saurashtra State

Baxi, J.—This appeal arises out of a suit for recovery of Rs. 6000/- filed by the Plaintiff-Appellant against the Saurashtra State us the Successor State of the former Nawanagar State. The Appellant claimed list. 3980/- as the price, paid by him for 311 goats and sheep alleged to be illegally seized by the servants of the former Nawanagar State and not restored to him, Rs. 1020/- as compensation for loss of profit and Rs. 1000/- as legal expenses in connection with the proceedings in connection with these animals.

The Appellant''s case was that he purchased in June, 1945, 304 goats and sheep from different Talukas of Kathiawar and sent them to Rajkot by road in charge of two shepherds. While on their way to Rajkot these animals were seized within the limits of the Lodhika Taluka by the village policeman and revenue servants of the then Nawanagar State and taken away to the village Vav within the Nawanagar State limits.

He tried to recover the animals and the matter was ultimately taken up by the higher authorities of the Nawanagar State and after a protracted inquiry lasting nearly two years the Dewan of the Nawanagar State held by his order dated 6-5-1948 that the seizure of the animals was illegal and ordered the refund of the sale proceeds of the animals Which wen; taken in the custody of the State.

Shortly after this order the Nawanagar State lnerced Into the Saurashtra State. The Appellant therefore made representations to the Saurashtra State and ultimately gave a notice u/s 80, CPC Thereafter he received two orders from the Saurashtra Government No. Rev/ A/583 dated 13-5-1949 and Rev/A/1677 dated 29-7-1949, by which the Saurashtra Government sanctioned the payment of Rs. 390-8-0 to the Appellant on account of the refund of the money realised from the sale proceeds of these animals.

The Appellant''s contention is that the animals were illegally seized by the servants of the Nawanagar State and therefore the Nawanagar State was liable not only to restore the animals but to, pay him compensation fdr loss of profit which he expected to make by their export to Ahmedabad and legal expenses Incurred in connection with the recovery of these animals. He contended that Rs. 390-8-0, which the Saurashtra Government had ''imncUoricO, represented the HP. IO proceeds of 3) surviving animals meaning thereby that the rest of the animals had perished, He relied upon cluse 6 of the Covenant of Merger, ''under which upon making over of the administration of his State by the Rifles of a Covenanting State to the Raj Pramukh, all assets and liabilities of the Covenanting State became the assets and liabilities of the United State of Kathiawar (later called the Saurashtra State), and were to be discharged by it. Several contentions were raised on behalf of the State.

The State questioned the jurisdiction of the -Court on this ground that as the Ruler of the Nawanagar State could not be sued in his own Court, if he Saurashtra Shift could'' ''not be sued, that the, 6 order of the Dewan had finally decided the Plaintiffs claim and the Civil Court had no jurisdiction) 6 to go behind the order by virtue of Article 14 of, the 6 Covenant. On merits the Plaintiff''s claim was denied, except as regards Rs. 390-8-0, which the State 9 had received from the Nawanagar State and the 6 amount has been subsequently deposited in the Court on behalf of the State.

The Civil Judge, Sr. Div. Rajkot, framed several issues and tried the issues relating to jurisdiction as preliminary issues and held against the State on those issues and ordered the trial of the other issues to proceed. Against, this order the State preferred a revision to this Court which was heard by the Pull Bench. At the hearing of the revision in addition to the contentions made In tile trial Court the learned Advocate-General raised further contentions against the Court''s jurisdiction to entertain the suit.

He contended that the Ruler of the Nawanagar State could not be sued in a Civil Court and the Saurashtra State too could not therefore be sued in a Civil Court for any alleged liability of the former State and that the suit was not competent) by virtue of Article 303 of the Constitution.

He further contended that the Saurashtra State was not liable vicariously for the acts of the servants of the former Ruler of the Nawanagar State. As these questions went to the root of the Court''s Jurisdiction, they were allowed to be urged in revision and the suit was remanded to the trial Court for a fresh decision of all the preliminary issues after consideration of the objections which) might be raised by the Defendant at the- fresh hearing.

The State was permitted to amend its written statement and the Appellant was given an opportunity to reply to such amended written statement, In obedience to these directions a further written statement was filed on behalf of the State incorporating the objections which were urged during the revision and the Appellant submitted an additional written statement in answer to the State''s further written statement.

In the further written statement the State submitted that the Appellant had no cause of action against the Saurashtra State as the Saurashtra State was not liable for the vicarious or other liability of the former Ruler of the Nawanagar State, that the Appellant was not entitled to take advantage of Article 6 of the Covenant as there was no private of contract between him and the State, and, the Court had no jurisdiction to try the'' suit on the ground that the former Nawanagar Ruler could not have been sued in a Civil Court and hence the suit against the Saurashtra State could not lie for the alleged liability of the NawanagM State.

It was lastly urged that the suit was barred by virtue of Article 363 of the Constitution. The Appellant''s reply was that the Saurashtra S Sato had ratified and accepted the liability of the old Nawvnagar State. He denied the contention that the Ruler of the Nawanagar State could not be sued in a Civil Court and urged that Article 363 of the Constitution had no application to the present it.

The learned Civil Judge framed additional issues and tried certain preliminary issues of law. He held that Article 363 had no application to the suit and there was no substance in the plea that the Ruler of the former Nawanagar State could not be sued in a Civil Court. He further held that the Appellant had a cause of action against the Siurashtra Ste-''e and that the Dewan''s order was roi final but was subject to the scrutiny by a Oivin Court.

He further held that the Nawanagar State was liable to the Appellant for illegal seizure of his animals by its servants but that liability did not devolve upon the Saurashtra State under clause 6 of the Covenant, for under that clause only those liabilities of the Nawanagar State which related to the welfare, health, education, safety, protection mid; property of subjects, were taken over by the Sauradhtrct State and consequently the Plaintiff''s suit .against the Saurashtra State did not lie and dismissed the suit. He however made no order as to costs. The Appellant has preferred this appeal .against the learned Civil Judge above decree.

The appeal was argued at considerable length on the points decided by the Court below. It is, however, unnecessary to enter into all these points for we think that the appeal must fail on the ground that the Nawanagar State was initially not liable for the Plaintiff''s claim except to the extent of Rs. 390-8-0 and consequently the Saurashtra State could not be held liable for the Appellant''s claim except to the extent of that amount. Before the Appellant can invoke the aid of Article 6 of the Covenant and hold the Saurashtra State liable he has to prove in the first instance that the Nawanagar State was liable for his claim. The question of the Saurashtra State''s liability arises only thereafter. Therefore the questions for determination in this appeal are whether (a) the Nawanagar State was at all liable to the Plaintiff for the seizure of his animals by Its servants and Vo) if .so what; is the extent of that liability.

As the suit has been disposed of on preliminary issues only, we have to assume that 304 animals were seized by the servants of the Nawanagar State, that the seizure was illegal, that all except 39 animals perished while in the custody of the Nawanagar State and Rs. 390-8-0 represent the sale proceeds of the surviving 39 animals. The Saurashtra State has produced the Dewan''s order as Ey. 4 and the two orders of the Saurashtra Government sanctioning payment of Rs. 390-8-0 to the Appellant as Exs. 5 and 6. The order of the Dewan has also an important bearing on the suit.

The Plaintiff alleges that these animals ware wrongfully seized and all except 39 perished. Beyond that he is unable to state what actually happened after they were seined. The Dewan''3 cider throws considerable light as to what happened after the seizure of the animals. It appears from the Dewan''s order that some proceedings of an executive nature were taken against the Appellant on a charge of exporting the animals from the Hr.wanagar State limits to Rajkot, The proceedings eventually ended in his conviction and fine and the animals were continued in the State''s custody.

Thereafter the matter was taken up by the Dewan, who, by his order, held that it was not proved that the animals were purchased from the State limits, that as they were seized from tie limits of a foreign territory, no offence appeared to have been committed in the State territories and No. proceedings should have been taken at all. In the result he acquitted the Appellant and ordered the fine to be refunded to him and directed that the sale proceeds of the animals, which were custody, should be refunded to him.

Now the initial seizure of the animals was admittedly illegal but that seizure took place in a foreign territory and the Nawanagar State cannot be held vicariously liable for the illegal seizure in a Court of law. The Appellant'' could have moved the then Political Authorities for-redress but he nailed not approach the Courts of the State in which the animals were seized or the Courts of Nawanagar State for the redress of his grievance.

The animals were however brought into the Nawanagar State territories and handed over to the-custody of the Nawanagar State. As its servants''-had committed the wrong outside the Nawanagar State limits, It could not be said that they were acting under colors-of their office. But after the animals were seized, they were taken within the State limits and handed ''over to the State''s custody. From the date of this handing over and thereafter whatever was done purported to have been done in the exertion at the powers conferred upon thus State servants under the Municipal law.

Proceedings of a criminal Mature had alsd-been taken against the Appellant, he was convicted and fined and It was only after the Appellant approached the highest authority of the State that he succeeded in obtaining his acquittal and an order for the refund of the sale proceeds of the animals. The facts therefore raise the question of the extent of after liability of the Nawanagar State for acts done by its servants under colour of autbo., rity conferred upon them by- the Municipal Law, The law on this point has been summarised lathe - State of Bihar Vs. Rani Sonabati Kumari, . Ahmad J. dealing with the extent of the vicarious liability of the State in the Fled of torts and after referring to various cases on the point observed as follows:

I teed not discuss each of these authorities elaborately. It will suffice to ray that they unim-peachably establish that by now the general immunity of the State in India in the field of torts-has been put to at least three broad exceptions and in those cases the State is liable to an action in Court for the tortuous liabilities of its servants. For a clear appreciation of the problem it may be advantageous to state the three broad exception here. They are as follows:

(1) Where the act complained of is done In the conduct of undertakings which might be carried on without having sovereign power delegated to it. That is, the State is liable for the negligence of its-employees In the course of their employment in the-same way as any private employer in a similar case, where the act complained of is of a private'' nature and not done in the exercise .of powers usually called sovereign or Governmental power or in the performance of an act of State: - ''Peninsular "and Oriental Steam Navigation Co. v. Secretary of State 5 Bom H C App 1 (13 and 14) (B), a case referred to with approval in the Privy Council by the Lord Chancellor Viscount Haldane in - ''Secy. of State v. Moment J.'', 40 Ind App 48 (PC) (O),

(2) Where the acts complained of consist in detention by the State of land, goods or chattels-belonging to the subject though in fact those nets-are done by the officer of the State in tne err-ise of power given to them under the municipal law. In .cases of this class the subject; has a right to-maintain an action against the State which in Engr land, as already stated above, is done by a Petition of Right.

It may be mentioned here that the acts done-in the exercise of sovereign-powers are proudly divisible into two groups, the first covering the acts of State property so tilled such as, making el treaty, commandeering private property for war purposes, or quelling, civil disturbances by force, over which the Court has no jurisdiction as regard!} Which the agent is protected as well as the principal and (ii) the second covering the .cuts done under color of municipal law as to which the agent at any rate is always responsible.

These acts done under colour of Municipal law .are again divisible into two sub-groups (1) those cons:.sting in detention by the Crown., of land, goods or chattels belonging to the subject and (2) those done by officers of the Orowii 111 the discharge of their official duties. The former, as stated above, constitutes tho second exception to the general rule: --''Uday Chand v. Province of Bengal'' 51 Cal WN 537 (D).

(3) As ft rule, acts falling in the second subgroup done by the servants in the discharge of their duties imposed upon them by the municipal law do not constitute a liability for action against the state on the principle that in exercising such authority or In exceeding it they cannot be considered to have been the agents of the authority appointing them so as to render the latter liable.

In such cases neither the doctrine of ''respondeat superior'' apply: - Tobln v. The Queen (1864) 143 ER 1148 (E); - ''Shivabhajan v. Secy. of State 28 Bom 314 (F), and - Secy. of State Vs. Srigobinda Chaudhuri, . Story on Agency in his well-known passage says that the Government itself is not responsible for:

Misfeasance, or wrongs, or negligence or omissions of duty of the subordinate officers or agents cnu''ahc''d in the public service, for it does not under tee to any person the fidelity of any of the walkers or agents whom .it employs since that would involve it, in all its operations, in endless embarrassments and difficulties and losses which would be subversive of the public Interests.

Ih cases of this class even ratification by the State would make no difference, because there can be no ratification unless the act is done on behalf of the principal in the first instance: - ''Huron v. Uenman (1848) 6 St Tr (NS) 525 (H) and note; to - ''Armory v. Delamirie (1903) 1 Sm LC 35fi (I). In 4 Inst. 317, Lord Coke says:

By the common law he that receiveth a trespass mid agredh to a Irespufis lifter it Is done, is no trespasser, unless the trespass was done for his, use or for his benefit, and then his agreement subsequent amounteth to a commandment, for in that case ''Omnia ratihabitio retrptrahitur et mandato. priori aequiparatur.

But from the very principles stated above it is manifest that where it is proved that the Impugned act has been expressly authoris/d by the State or that the State has been profited by its, performance, the State will not be left immune from an action for the liability arising from them - ''A. M. Ross v. Secy. of State AIR 1915 Mad 434 ( v. 2) (J). They, therefore, constitute the third exception to the general rule of Immunity applicable in favour of the State.

These exceptions constituting liability against the State for the tortious acts of its servants and agents fully illustrate that law in India has developed on entirely different lines and I think there in lot of force in the opinion '' expressed by Mukharj J. in the rase of - Calcutta Motor Cycle Co. Vs. Union of India (UOI), , ''that it will be insensible especially in view of the conditions now prevailing wherein police states are fast changing into welfare states to import all the Medieval immunities of the English Crown into the Indian Law.

Though the Nawanagar State was not liable for the initial illegal seizure of the animals by its servants outside its territories, the animals were made over to it and it cannot be allowed to profit by the transaction. It is therefore clearly liable to restore them and where restoration cameos be made of all the animals seized, it must account for the animals which were not restored. The appellant admits that ail except 39 animals perished in the custody of the State.

It may be that those servants of the State who had custody of the animals, might be negligent is not selling them away before they perished but in detaining the animals they were acting in the exercise of powers conferred upon them by Municipal law and the Nawanagar State clearly cannot be. held responsible for the loss of animals for It cannot be said that It has profited, by the loss of the animals. We therefore hold that the Nawai nagar State was liable for the sale proceeds actually'' realised and the Saurashtra State''s liability cannot extend beyond that.

It is common ground that Rs. 390/8/- were Heallsed by the Nawanagar State and as the amount is tendered in Court by the Saurashtra State, the Appellant cannot claim any more than, this amount and his claim, except to the extent of this amount, must fall. In view of this finding: it is not necessary to go into the general question of the devolution of the liability of the Nawanagar: State on the Saurasht-a State under clause 6 of the-Covenant.

In the result we confirm the decree of the learned Civil Judge and order the suit to bP dismissed. The Appellant was permitted to sue in forma pauper is. He was also allowed to appeal in forma pauper is. He shall therefore pay the Court-fees to the Government payable on the plaint and also on the memo of appeal. We however make no farther order as to costs.

Shah, C.J.

I agree.