2 s.c.R.

SUPREME COURT REPORTS 989

THE STATE OF RAJASTHAN

MST. VIDHYAWATI AND ANOTHER (B. P. SINHA, c. J., J. L. KAPUR, M. HIDAYATULLAII,

J.C. SHAH and J. R. MUDHOLKAR, JJ.) Tort-Suit for damages-Liability of State for tortious aci of its Bervant acting as such-Con•titution of India, Arts. 300 (I), 294, 295-Government of India, Act 1935 (25 and 26 Geo. v. C.

42) s. 176 (1)-Gavernment of India Act, 1915 (5 & 6 Geo.

V. C. 61), s. 32-Government of India Act, 1858 (21 and 22

Victoria Ch. U.V. 1)" a. 65.

The respondent l's husband and father of minor respondent 2 was on February 11, 1952, knocked down by a Government jeep car rashly and negligently driven by an employee of the State of Rajasthan, while being taken from the repair shop to the Collector'• resodence, and mbsequently died in hospita'. On a •uit by the respondents for damages, the trial court decreed the same exparte as against the driver but dismissed it as against the State, holding that a• the car was being maintained for he use of the Collector, in discharge of his official duties, even though it was not being used for arty purposes of the State at the time of the occurrence, that was sufficient to absolve th" State of any vicarious liability as the employer. The High Court on appeal, disagreoiug with the trial court, decreed the suit as against the State as well.

Held, that the liability of the State for d images in respect of a tortious act committed by its servant within the scope of his employment and functioning as such was the same as that of any other employer.

The relevant provisions for determining the.extent of that liability were not those contained in Arts. 294 and 295 which were primarily concerned with the devolution of rights, assets and Iiabili ties but those of Art. 3o0 ( 1) of the Constitution, which by using the expression "in like cases" in its second part defined the extent of t!1at liability and referred back to the legal position obtaining before the promulgation of the Constitution.

Article 300 (1), read in the light of s. 176 (l) of the Government of India Act of 1935 , s. 32 of the Government of India Act, 1915, , md s. 65 of the Government oflndia Act, 1858, left no manner of doubt that ihe extent of the liability of a State must be :lie same as that of the East India Company as decided by the Supreme Court of Calcutta, in the case of Peninw.lar "nd- Onental Steam Navigation Co. v. The SecrefJl, ry of State for , India.

l~6S

F eiruar.v 2.

IHI

T/t, St.t,.f

Rojutltan

•• Msl. Vidriyawah

990 SUPBEME OOURT REPORTS [1962] SUPP.

Ptnin.na1ar and Oriental Buam N avi4alion Co. "· Tht. l'lecrda'rg of 8'attfor India, (1868-69) 5 Born.

H. C.R. 1, approved.

R•gard beln11: had to the stai:ies by which the State of RaJa<than wu ultimately formed, it was not possible in order to 'udl!'o the Hability of that State under Art, 300 (1) to go lvvond the last stall:O of inte11:T3tion leading to the formation of the Rajasthan Union on the eve of the Constitution and that l.'nion would be the corresponding State as contemplaterl by the Article.

Jn the ahsence therefore, of any law providino otherwise, the Union of Rajasthan, just as the Domin-.

Ion of India or anv of its constituent providences, would be vicarioW1ly liable for the acts of its servant.

Viewed fmm the stand-point of the first principle., tbe conch,, ion could not be otherwise. Ever since the days of the

P.ast India Companv, the Sovereil!ll was held liable to be sued In tort or in contract and the En11l!.h Common law immunity as it existed in F.neland before the enactment of Crown Pror.•din"' Act. 1947, never operated in India. With the advent of the Constitutfon and ina1111uration of th• Republic with a vi•w to "tabli<hincr a Sociali•tic State with its varied industrial and oth-r activitiC' •ncrai:?in11: larire numben of employeeo thrrc rould no iutifi,_ation, in principle or public iritettt, that the State •hould not be held vicariowly liahle for the tortious acts of it:s servant~.

Stat• of Rihar v.-Abdul Majir1, 02541 S.C.R. 786, rerferred to

As neither the Parli .. ment nor any State Legislature had thou11ht fit to rnact tlny law on the matter, a right saved by hv Art, 300 of the Comtitution,.the law must continue to be the same as it had been since the days of the East India Companv. ·

Crvn. APPRLLATE JURISDIOTION: Civil Appeal No. 263 of 1 !l."i8.

Appsl from the judgment and decree dated March 22, 1~:17 of the Rajasthan Hiizh Court in D. B. Civil First Appeal No. 36 of 1954.

G. C. Ka.'lliwal, Adoocate-General, jaBthan, H.R.

Khanna, B.}{.. Kapur, P.T>. Mt11l>n, for thll appellant.

8. N. Andley, Ramuhwar Nath and P.L. Vohra, for the reapondenta. .. "

-< •

1962. February 2. The Judgment of thE" Court was delivered by

SINHA, C. J.-This appeal, on a certificate granted by the High Court of Rajasthan under Art. 133(l)(c) of the Constitution, raises a question of considerable importance, namely, the extent of the vicarious liability of Government for the tortious acts of its employees, acting in the course of their employment as such. 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. Lokumal, who is not a partyto this appeal.

On appeal by the plaintiffs against the judgment and decree of the Trial Court, the High Court of Rajas thnn passed a decree in favour of the plaintiffs allowing compensation of Rs. 15,000/· against the State of Rajasthan also, which is the appellant in this Court.

The facts of this case may shortly be stated as follows. The first defendant Lokumal, was a tempo rary employee of the appellant State, as a motor driver on probl>.tion. In February, 1952, he was employed as the driver of a Governmi>nt j iep car, registered as No. RUM 49, under the Collector of Udaipur. The car had been ent to a workshop for necessary repairs. After repairs had been carried out, the first defendant, while driving tho car back along a public road, in the evening of February 11, 19'i2, knocked down one Jagdishlal who was walking on the footpath by the side of the public road in Udaipur city, mmsing him multiple injuries, including fractures of the skull and backbone, resulting in 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 Raja, sthan for damages for 'the tort aforesaid. They claimed the compensation of Rs. 25,000/· from both the

Th, State of

Rojatlaon ...

Jlst. Vidhjawcti.

Sinh• C. J,

ntSt•ef ilV-IMa

1111. V; A,,_.i;

sw..c J.

1!92 SUPREME OOUR'.l' llEl'OHTS (1002] SUPP.

defendants. The first defendant remained llX-parte.

The suit was contested only by the second defendant on a number of issues. But in view of the fact that both the Courts below have agreed in finding that the first dE>fendant was rash and negligent in driving the jeep oar resulting in the accident and the ultimate death of Jagdiahlal, it is no more necessary to advort to all the questions raised by way Of answer to the suit, except the one on which the appeal has been preesed before us.

The second defendant, who was the resp'ondent in the High Court, and is tho appellant before us, conte1led the suit chiefly on the ground that it was not liable for the tortious act rif its employee. The Trial Court, after an elaborate discuseion of the evidence, decreed the suit against the first defendant e:i:-parte; and dismissed it without oosts against the second defendant. On appeal by tho plaintiff•, the High Court of Hajasthan (Wenchoo C.J., and D. S. Dave J.) allowed the appeal and .lecreed the suit against the second deftndant also, with costs in both the Courts.

The State of Rajasthan applied for and obtained the necessary certificate "that the case fulfils the require men ta of Art. 1 :~3( I Xe) of the Uomtitution

of India". Tlie High Court rightly observed that an important pciint of law of general publio importance, namely, the extent of the liability of tho State in tort, was involved. '

In s11pport of the appeal, couns<.'l for the Appellant raised substantially two questions, namely, (1) that under Art. 300 of tho Constitution, the State of

Ra.jaathan, was ..iot liable as the corresponding Indian State wollld not have been liable if the ~.ase had arisen before the Constitution came into force; and

(2) that the jeep oar, the rash and negligent driving of wt:ch led to the claim in the suit was being ma.intained "in exercise of sovereign powers" and not as part of any commercial activity of the State.

The second question may shortly be disposed of before we address ourselves to the first question,

which is the more serious of the two raised before us. Can it be said that when the jeep oar was being driven back from the repair shop to the Collector's place, when the accident took place, it was doing anything in connection with the . exercise of sovereign powers of the State? It has to be remembered that the injuries resulting .in the. death of Jagdishlal were not caused while the jeep car was being used in connection with sovereign powers of the State. On the findings of the Courts below it is clear that the tortious a<it complained of had been committed by the first defendant in circumstances wholly disriociated from the exercise of sovereign powers.· The Trial Court took the view that as the oar was being maintained'for the use of the Collector, in the discharge of his official duties, that circumstance alone was sufficient to take the case out uf the category of cases where vicarious liability of the employer could a.rise, even though the oar was not being use at the time of the occurrence for any purposes of the State. The Trial Court accepted the contention of the State of Raja.sthan, on reaching the conclusion, after a discussion of the lega.l position, in these words : .

"Therefore it foilows that the constitution and control of the Collector's office at the Uda.ipur is an instance of exercise of 11overeign

powers." On appeal, the High Court disagreed with the Trial Court on the lega.l issue. Its finding on this issue is in these words :

''In our opinion, the Sta.ta is in no better position in so far as it supplies cars a.nd keeps drivers for its civil service. It may be clarified that we are not here considering the case of drivers 11mployed by the Sta.ta for driving vehicles which are utilised for military or public service."

Jffl

Ti., Stat.•/

Rojaslhatt

•• Mst. Yidhvawlll

Sinlui C. J.

"" n,811111 •f bjutW

•• -Jt, iYii

s;..w c. "·

994 SUPREME COURT REPORTS [l!l82) SUPP.

In ihe result, the High Court granted & decree to the plainWfs as against the second defendant also for the SUQl of Rs. 15,000/-. In our opinion, the High Court has t&ken the correct view of the legal

poaition, in view of the ciroumstan(){'S in which the occurrence took place.

Th~ more important question raised on this appeal rt>sta upon the true construction and effect

of Art. 300(1) of the Constitution, which is in these terms:·

"The Government of India may me or bf' sued by the name of the Union or India and the Government of a State may sue or he sued by the name of the State and may, subject to "' any provisions which may be made by Act of Parliaft'lent or of the Liislature of suoh State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to 1 heir respective affairs in the like cases as the Dominion or India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Consitution had not been enacted."

It will be noticed that this Article consists of three pa.rte, namely, (I) the first part provides for the form and the cause-title in a suit and says that a State (omitting any reference to the Government of Ind; a.) may sue or Jie sued by the name of the State, and

(2) that a state may sue or be sued in reltion to its affairs in like cases as the corresponding Provinces vr the correflponding IndianSte.te might have ued or been sued if this Constitution had not been enacted; and (3) tha~ the second p:ut is subject to any provi- 11ions which may be made by an Act of the Le, eislature of tbe 13tate concerned, in due exorcise of its

legislative £unctions, in pursuance of po,:-ers c<•nferred bv the Constitution. The learned Adv0<ate- Ge.neral for the State of Rajaethan argued that the

second part of the artiole ba.s referenoe to the ex, tent of the liability of .a State to be sued, and that, therefore, we have to determine the question of the liability of the State in this case in terms of the Article. On the other hand, it has been argued on behalf of the plaintiffs-respondents that chapter. III of part XII of the Constitution, whioh is headed as "Property, Contracts, Rights, Liabilities, Obligations and Suits", contains other Articles in the Chapter dealing with rights and liabilities, namely, Arts. 294 and 295 and that Art. 300 is confined to only the question iu whose name suits and prooeedings may be commenced, in which the Government of a State may figure as plaintiff or as defendant, and that the Arti cle is not concerned with defining the extent of liability of a State. In other words, it was contended that Art. 300 was irrelevant for determining the vicarious liability of the defendent State in this case, and that there was nothing .in this Article definitive of that liability. In our opinion, it is not correct to argue that the provisions of Art. 300 are wholly out of the way for determining the liability of appellant State. It is true that arts. 2114 and 295 deal witlr rights to property, assets, liabilities and obligations of the erstwhile Gcivemers' Provinces or of the Indian States (specified in Part B of the. First Schedule). But Arts. 294 and 295 a.re primarily concerned with the devolution of those rights, assets and liabilit-ies, and generally speaking, provide for the succession of a State in respect of the rights and liabilities of an Indian State. That is to say they do not define those rights and liabilities, hut only provi:ie for substitution of one Government in place of the other. It is also true that fust part of Art. 300, as already indicated, deals onlj with. the nomenclature of the parties to a suit or proeeeding but the second part defines the extent of liability by the use of the words. "in the Jike cases" and refers back for the determination . of s11oh cases to the legal position before the. eQ&otment of the

J961 -n. 81"'4"'

Rqj..UU..

•• Mtt. Yidh,....,, i

Si•ha C. J.

IHI

T/wdtDl.,, f v.

M1t.I'"~

s;, Ma c. J.

996 SUPREME COURT REPQRTI:j (1962) SUPP. t

Constitution.

That legal position is indicated in the Government of India Act, 1935 (25 & 26 Geo.

V c. 42), s. 176(1) which is in these words:

"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 aame of the Province, and, without prejudice to the subsequent provisiona of tt1is chapter. may subject to any provisions which may be m&de

by Act of the Federal or a Provincial Legislature enacted by virtue of powera conferred on that Legislature by this Act, sue or be sued in relation to their reapeotive affairs in the like caeee as the Secretary of State in council might have sued or been sued if this Act had not been passed." It will be noticed that the provisions of Art. ~00( J) ands. li6(l) are mtttatis mutandis substantially the eame. Section 176(1) refers b&ck to the legal poai tion as it obtained before the enactment of that Act, that is to eay, as it emerged on the enactment ofs. 32 of the Government of India Act, 1915 (5 & 6 Geo.Vo. 61) Sub-es. (l) and (2), which only are relevaat for our present purpoees, are in theae words:

"(l) The Secretary of State in Council may 111e and be sued by the name of the Secretary of State in Council, as a body corporate.

(~) Every person shall have the u.me remedies against the Secretary of State in Counoil as he might have h&d against the E&Bt India Company if t.he Government of Ind!,& Act, 1858, and this Act h&d not been paeeed.

As compared to the terme of Art. 300, it will be noticed that part (I) of that Article corresponde to sub-s. (1) of 11. 32 above, pa.rt (2) roughly, though not eI&ctly, corresponds to sub-a. (2), and pa.rt (3J of the Artiole, a.a indioated above, doea noi f'md a

' '

place in s. 32. Sub-section (2) of s. 32 has specific reference to "remedies", and has provided that the remedies against the Secretary of State in Council shall be the same as against the East India Company, if the Government of India Act of 1858, and the Government of India Act, 1915, had not been passed. We are, thus, referted further back to the Act 21 & 22 Victoria Ch. CVI, entitled "An Act for _ the better Government of India.." As thia Act transferred the Government of India to Her Majesty, it had to make provisions for succession of power and authority, rights and liabilities. Section 65 of the Act of 1858 is in these terms:

"The Secretary of State in Council shall and may sue and be sued as well in India as in England by the name of the Secretary of State in Council as a body corporate; and all persons and bodies politic shall and may have and take the same suits, remedies and proceedings, legal and equitable, against the Secretary

of State in Council of India as they could have done against the said Company; and the property and effects hereby vested .in Her Majesty for the purposes of the Government of India, or acquired for the said purposes; shall be subject and liable to the same judgments and executions as they would wlrlle

vested in the said Company have been liable to in respect of debts and liabilities lawfully contracted. and incurred by the said Company." - It Will thus be seen that by the chain of enactments, beginning with the Act of 1858 and ending with the Constitution, the word "shall and may have and take the same suits, remedies• and proceedings"

in s. 65 above, by incorporation, . apply the Government of a State to the same extent, as they applied to the East India Company.

J'h, SIMI of

Rajas than

•• Jlsl. V idhyowoli

Sinil• C. J.

TlwSl,,..of

.~'""" v.

Mst. Vid•JawGti

liiMii c. J.

998 SUPRE¥E COURT REPORTS (1962] SUPP.

The question naturally a.rises : What was the extent of liability of the East India Company for the tortious aoti! of its sen ants committed in course of their employment as such 1 The exa.ct question now before us a.rose in a case in Calcutta, before the StJ.Preme Court of Calcutt&, in the ca.se of TM. Penif&sular and Oriental Ste.am Navigaliqn Company v. The Secretary of St.arefo-r lndia ('). The Calcutta oase appears to have been cited before the High Court in .Bombay in the case of Narayan K rish1W Land v. Gerard N &rman, Collector of Bombay(').

The Bom ba.y case related to an action of trespass, brought by the plaintiff against the Collector of Bombay in respect of certain land, which the Collootor believed was Government property. Of immediate importance to us in his case is the repo'rt of the Calcutta case, which does not appear to have been reported in any Calcutt& legal, journal though, on the face of it, it was judgment of far reaching importance and bas always been cited as the lea.ding case on the subject. It was a cas~ decided by a Full Bench, consiHting of Pea.cock, C.J., aud Ja.kson

and Wells, JJ., of the Supreme Court of Calcutta.

It arose out. of a reference by the Small Ca.use Court Jud~ under s. 5.i of .Act IX of 1850. The

case, as stiLted to the Supreme Court, was to the following etrect. A servant of the plaintiffs wa.s prooeeding on & highway in Calcutt& driving a carriage drawn by a pair of horses belonging to the plaintiftil.

The a.ocideat, which toolr. place on the highway,

was caused by the servantB of the Government, employed in the Government dockyard at Kidderpore, acting in a negligent rash manner. As a reeu.lt. of the negligent manner in which the Government employOOl!fu the dockyard were carrying a piece of iron funnel, one of the horses drawing the plaintiffa

" (I) D<cided, io 1861 and reporte4 ill the Newspaper "Enalllhman' ol

Octobu 23. 1861, lllld republlahocl in AW-UX •A'. to lho -bay Hilb Qilurt Rcporta, Vol. V, of die year 1861-69,

(2) (1868) V Bc.m. H.C.R. 1.

~.

carriage was injured. The plaintiff company claimed dama.ges against the Secretary of State for India for the damage thus caused. The learned Small Cause Court Judge came to the finding that the defendant's servants were wrongdoers in carrying the' iron funnel in the centre of the road, and were, thus, liable for the consequences of what occurred. But he was in doubt as to th, e liability of the Secretary of State for the tortious acts of the Govornment servants concerned in the occurrence in which the injury was ca.used to the plaintiffs' horse.

So the question, which was referred to the Court for its answer, was whether the Secretary of State was liable for the damage occasioned by the negligence of the Government servants, assuming them to have been guilty of such negligence as would have rendered an ordinary employer liable. In the course of their judgment, their Lordships began by examining the question whether the proviso to the jurisdiction of the Small Cause Courts to the following effect could be a bar to the suit:

"Provided lwa.ys that the Court shall not have jurisdiction in any matter concerning the revenue, or concerning any act. ordered or done by the Governor, or Governor-General or any member of the Col.iiloil of India, or of any Presidency, in his public capacity, or done by any person by order of the Governor General or Governor in Council, or concerning any act ordered or done by any Judge or Judicial Officer, in the exooution of his office, or by any person in p'lii'SuancE) of any judg mentor order of any Court, or any such Judge or Judicill.i ()iijoer, or in 11.JlY suit for libel or slandec .'' (Pro\iiso to s. 25 of the Small Cause Court A.ct.). .

The Court came to'the oonolusion that the proviso was. not a ba.r to the sbit. Havillg disposed .-0f the preliminary question, the Court addresaed itself to

Tiu Sta" of

Bajaathan

Msl. Vidhyaw•ti

Sinha C. J.

n.si.1 .. 1 ••

1111. Yi<IA,.....ii

/lirtMC.J.

1000 SUPREME OOURT REPORTS (1962) SUPP.

the main controversy, which it described as "one

of very comiderable importance and of some difficulty". Then the Court considered the provisions

of s. 65 of the Act of 1858, and pointed out that as the Queen could not be sued in her own courts, as the East India Company oould have been, it was ueceaeary to provide by that section the mode for enforcing the liabilities of the Companynowdevolv ed upon the Secretary of State. Then the Court addressed iteelf to the question. Would the East India Company have been liable in the present action if the Aot (21 & 22 Vict. ch. 106) had not been p&Blled ? With reference to the provisions of 3 & 4 Wm IV, o. 85, it was pointed out that the Cqmpany not only exercised powers or government, but also carried on trade as. merchants. The Court then examined in great detail the provisions of the Act aforesaid and pointed out that by that Act the Company was directed to close its oommercial business and oeue to have any interest in the territorial acquisitions in India, whioh were to be held by the Company until April 30, 1854, in irust for the Crown. Seetion 10 of the Act, which may be charaoteriBed aa the anoestor of s. 66 or the Act or

1858, provided u follows :

"That so long 1111 the ion and government of the B&id territories shall be oontinued to the B&id Company, all persona and bodies politic shall and may have and take the same suits, remedies, and prooeedinga, legal and equitable, against the e&id Company, in reepect of debts and liabilitiea aa aforesaid ; and the prope~ vested in the eaid Company in trust as aforeeaid shall be subject and liable to ti. same judgments and execution, in the same manner and form reepeotively aa if the eaid property were hereby continued to the B&id Company to their own 11116." It is noteworthy that the provisions of s. 10, quoted &hove, are materially s•milar to the latter part

of s. 65 of the Act of 1858. It was in accordance with the provisions of s. 10, followed up by s.65 aforesaid, that the Court la; d it down that the Secretary of State for India Wll.B subject to the same liabilites as those which previously attached to the East India Company.

Before the Supreme Court of Calcutta, it was contended by the learned Advocate-General, on behalf of the defendant, that the State cannot be liable for damages occasioned by the negJi. gence of its officers or of persons. in its employment. It was pointed out, "it is true that it is an attribute of sovereignty that a State cannot be sued in its own courts without its consent." "In England, the Crown", it was further pointed out,

"cannot be made liable for damages for the tortious acts of its servants either by petition of right or in any other manner, as laid down by Lord Lyndhurst in the case of Viscount Canterbury v. The Attmney- General" (1). That decision was based upon the principle that the King cannot be guilty of personal negligence or misconduct, and oonsequently cannot be responsible for the neglig:mce or misconduct of his servants. The Court further pointed out that it was in view of these difficulties in the way of getting 'redress that the liability of the Secretary of State, in place of that of the East India Company, was specifically provided for by s. 10, aforesaid. The East India Company itself could not have claimed any such immunity as was available to the sovereign. This view was based on the opinion expressed by Grey, C.J., in the case of the Bank of Be:r11Jal v. The East India Company ('); that

"the fact of t, he Company's having been invested with powers usually called sovereign powers did not constitute them sovereigns". This dictum \oas

also founded upon the recit.al in 53 Geo.III o.155, by which the territories in the possession and under the government of the East India Company were vested in them without prejudice to the undoubted

(I) (1843) I Philip& 306: 41 E.R. 6t8, ( 4) llignell Rep. p. 120,

J9fll

Tiu Bi.te of

a,;.,111M ..

Jlsl. Vidh,111W•I/

Sina C J.

19'2 n. s .... •f

Rof•sl\.,.

Jl1l. Vidlry-Jua'i

5inha C. J.

1002 SUPREME COURT REPORTS (1962] SUPP. t

sovereignty of the Crown. The Court also pointed out that the liability of the Secretary of State was in no sense 11 personal liability, but had to be satisfied out of the revenues of India.

This case also meet.~ the second branch of the argument that the St.ate cannot be liable for the tortious acts of its servants, when such servants are engagt•d on an activity connected with the affairs of the State. In this connection it ha11 to be remembered that under the Constitution we have established a welfare state, whose functions are not confined only to maint."ining law and order, but extend to engaging in all act.ivities including induHtry, public transport, state trading, to name only a few of them. In so far as th~ State activities have such wide ramifications involving not only the use of sOTereign powers but also its powers as employers In so many public sectors. it is too much to claim that the State should be immune from the consequences of tortious acts of its employees committed in.the course of their employmer't as such. In this respect, the present sut up of the Government is analogous to the p09ition of the East India Company, which functioned not only as a Government with sovereign powers, as 11 delegate of the Bdtish Government, but also carri.ed on trade and commerce, as also public transport like railways, poets and telegraphs and road transport busine88. It was in the context of those facts that the Suprt>me Court of Calcutta repelled the a, rgument

advanced on behalf of the Secretary of State in these terms :

"It was contended in argument that the Secretary of State in Counoil, 88 regards his liability to be sued, must be oonsidered -.ii the State, or as a public officer employed by the

state. But, in our opinion his liability to be sued depends upon an express enactment in the 21st & 22nd Viot. c. l 06, by weich he is oonstitututed a mere nomial defendant for the purpoee of enforcing payment, out of the

l'evenues of India, of the debts and liabilities which had been contracted or incurred by the East India Company, or debts or liabilities of a similar nature, which might afterwards be contracted or incurred by the Government of India. We are further of opinion that the East India Company were not sovereigns, and therefore, could not claim all the exemption of a sovereign ; and that they. were not the public servants of Government, and, therefore, did not fall under the principle of the cases with regard to the liabilities of persons; but they were a company to whom sovereign powers were delegated, and who traded on their own account and for their own account and for their own benefit, and were engaged in transactions partly for the purposes of government, and partly on their own account, which without any delegation of sovereign rights, might be carried on by private in di vi<luals. There is a great and clei>r distinction betwetm 'acts done in the exercise of what are usually termed sovereign powers, and acts done in th:J conduct of undertakings which might be carried on by private individuals without having such powers delegated to them : Moodaley v. 'L'he East Indw Company and 'l'he Same v. Morton (1 Bro. 0. O. 469) ".

It was also argued before that Court tha.t the East India Company having the two-fold character of a sovereign power and of a .trading company, it would be very difficult to determine whether a particular act had been done in the exercise of sovereign powers or of its activity in relation to business. In answer to this contention, it was pointed out by the Court that the Company would not have been liable for any act done by its officers or soldiers in carrying on hostility or in seizing property as prize property or while engaged in

1 h< St.te of

Bajasu.an

M 81. Vidh)•<Jwali

Sinha C. J.

IHI

TMSW.o.f

B.;.slAa ..

J/14. Yid.tr.-;

s-.o .J.

1004 SUPREME COURT REPORTS [1962] SUPF. i

military or al action. In such cases no action would have lain even against the offioel'8 them selves. But the Comp1my would hi.ve been liable for the negligenoe of their servants or officers in navi gating a. river steamer or in repairing the same or in doing any act in connection with such repairs.

The argument that a distinction had to be drawn between the liability under a contract and that arising out of a wrongful act, and that the latter category of liability would not. be within the mischief of the words of the section ( R. 65) was rightly repelled with reference to the words of the Statute, which said "debts lawfully contracted and expenses or liabilities incurred". The latter expression 'liabilities incurred' wou Id include a liability arising out of a tortious a.ct. The Court, after an• elaborate consideration of all possible argument in favour of the Seoreta.ry of State, came to the folloll'ing conclusion, which is rightly BUID med up in the head-note in these words :

''The Secretary of State in Council of India is liable for the damages occasioned by the negligence of servants in the service of Government if the Legligence is such as would render an ordinary employer liable.~

But it was further urgued that Art. 300 speaks of 'like cases' with reference to the liability of the corresponding Indian States. In this connection, it was further argued that the plaintiff', in order to suooeed in his action against the Sta.to of Rajastha.n, must prove that the State of Udaipur which would be deemed to be the corresponding State, would have been liable in similar oiroumstanoee btfore the Con11titution was enacted. The history of event.a lea.ding up to the formation of the Stat.$ of Rajastha.n has to be adverted to in this oomiection. It is clear, on a reference to ihe Government publication oalled "The White Paper on Indian States" paragraphs 134 to 138, at pa.gea

(53-55) that the integration of the Rajasthan States into one single state was effected in several stages.

The Rajasthan Union was originally formed by the smaller States, whioh later united and formed the United State of Rajasthan, inaugurated on March 25, 1948.

Subsequently, bigger States joined and the second Rajasthan Union was inaugurated on April 18, 1948. By a further process of integration of some bigger States, new United State of Rajoisthan was inaugurated on March 30, 1949. There was a further accession of territory by the agreement contained in Appendix XLI, on May 10, 1949, with the result that the initial United State of Rajasthan with an area of 16, 807 sq. miles developed into one of the biggest units in India, as the Rajasthan Union, before the Constitution, with an area of l,28,424 sq. miles, and finally, on the inauguration of the Constitution emerged the State of Rajasthan as one of the Part B States. It is clear that we cannot go beyond the last stage of the integration, as aforsaid, which brought into existence the Sta\e just before the coming into effect of the Constitution. As al ready pointed ciut, the provisions of the second part of Art. 300 have to be traced backwards until we reach the Government of India Act 1858 (s.65), which itself was based upon s. IO of the Act (3 & 4 Wm. IV c. 85) of which the relevant portions have been set out above.

From the resume of the formation of the State of Rajasthan given above, it is clear that we need not travel beyond the stage when the Rajas. than Union was formed on the eve of the Constitution. It has not been shown that the Rajasthan Union would not have been liable for the tortious act of its employee, in the circumstances disclosed in the present case. The issue framed at the trial, on this part of the controversy, was issue No. 9, in these terms :

196!

Th• State of

RajastJur11 ••• M st. V idll.JW<lli

Sinha C. J.

lHI

Tit• Stol< of

Rojas I,,..

•• Jlsl. Yati

SW.. C. J.

1006 St:PREME COURT REPORTS (1002) SUPP. t

"Whether the State ofRajasthan is not liable for the act of Defendant No. l ?"

The State of Rajasthan haa not shown that the Rajasthan Union, it11 predeoessor, wu not liable by any rule of positive enactment or by common Law. It is clear from what hu been said above that the Dominion of India, or any constituent Province of the Dominion, would have been liable in view of the provisions afore11aid of the Govern ment of India Act, 1858. We have not been shown any provision of law, statutory or otherwise, which would exonerate the Rajastban Union from vicarious liability for the acts 0f its servant, analngous to the Common Law of Enii; land. It was impossible, by reason of the maxim "The King can do no wrong", to sue the Crown for the tortious Rct of its servant. But it was realised in the Unit.ed Kinp; dom that that rule had become outmoded in the context of modern developments in statecraft, and Parliament intnvened by enacting the Crown Proceedings .Act, 194 7, which came into force on

Januar~ I, 1948. Hence the very oitadel of the absolute rule of immunity of the sovereign has now been blown up. Section 2 (I) of the Act provides that the Crown shall be subject to all those liabili ties, in tort, to which it would be subject if it were a privat~ prson of full ago and capacity, in respect of torts committed by it.s servants or agents, 1mbjeot to the other provisions of the Act. As aln•ady pointed out, the law applicable to India in respect of torta committed by a servant of the Government was very much in advance of the Common law,

bofor!l the enactment of the Crown Proceedings Act, I9-i7. which has revolutionised the law in the United Kingdom. also. It ha, not been claimed before us that tho common law of th13 United Kingdom before it was altered by the said Act with dl'oot from 1048, applied to the Rajasthan Union in 1949, or even earlier. It must, therefore,

' .

be held that the State ofRajasthan has failed to discharge the burden of establishing the case raied in Issue No. 9, set out above.

Viewing the case from the point of view of first principles, there should be no difficulty in holding 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. The immunity of the Crown in the United Kingdom, was b&sed on the old feudalistic notiom of Justice, namely, that the King was incapable of doinli a wrong, and, therefore, ofauthorising or instigating one, and that he coll.Id not be sued in his own courts.

In India, ever since the time of the E11.st Indie Compam, the sovereign has been held liable to be sued in tort or in contract, and the Common Law immunity never operated in India. Now that we

have, by our Constitution, established a Republican form of Government, and one of the objectives is to establish a Socialistic State with its varied industrial and other activities, employing a large army of servants, there is no justification, in principle, or in public interest, that the State should not he held liable vicariously for the tortious act of its sArvant. The Court has deliberately departed from the Common Law rule that a civil SPrvant cannot maintain a suit against the Crm>rn.

In the case of State of Bihar v. Abdul Majid (1), thia Court has recognised the right of a government servant to sue the Government for recovery of arrears of salary.

When the rule of immunity in favour of the Crown based on common Law in the United Kingdom has disappeared from the land of its birth, there is no

legal warrant for holding that it has any validity in this country, particularly after the Constitution.

As the cause of action in this case arose after the coming into effect of the Constitution in, our opinion, it would be only recognising the old established rule, going back to more than 100

(I) [1954] S.R.C.c786.

"196'

TM •tote of

Bajasilum

•• Ms,, YidhJawati

Sin!za C. J.

Tiii Stall of

BttjaJIAa

v •• Jlsl. VidAJ...,.,;

SW.. C. J.

1008 SUPREME OOURT REPORTS [1962] SUPP. l

years at lea.at, if we uphold the vioarioua lia.billty of the St&t.e. Art. 300 of the Constitution itself has saved the r.ight of Parliament or the Legislature

of a State tq enact such law as it may think fit and proper ip this behalf. But so long as the Legis. lature has not expressed its intention to the contrary, it mu&t be held that th~ law i1 what it has been ever ilinoo the days of the East India Company.

In view of these considerations, it mnat be held that there is no merit in this appeal, &Dd it i& accordingly dismissed with costs.

A pptal dismissed.

989

THE STATE OF RAJASTHAN

MST. VIDHYAWATI AND ANOTHER

L. KAPUR

C. SHAH

R. MUDHOLKAR, JJ.

Arts. 300

s. 176

Gavernment of India Act, 1915

s. 32

Government of India Act, 1858

Arts. 294 and 295

Art. 3

Article 300

s. 176

s. 32

Government of India Act, 1915

s. 65

Government oflndia Act, 1858

Art. 133(l)(c)

Art. 1

Art. 300

Art. 300(1)

Arts. 294 and 295

Art. 300

Art. 300

Art. 300

arts. 2114 and 295

First Schedule

Arts. 294 and 295

Art. 300

s. 176(1)

Section 176(1)

Government of India Act, 1915

Art. 300

s. 32

s. 32

Government of India Act, 1915

Section 65

s. 65

s. 5

s. 25

s. 65

s. 66

s. 10

s. 65

s. 10

s. 10

Art. 300

Art. 300

Government of India Act 1858

Govern ment of India Act, 1858

Section 2

Art. 300


3 S.C.R.

. SU~REME COURT REPORTS 105

The contention urged before us is that this provision has no retrospective operation and that in consequence t.he proceedings which had been pending before the old Tribunal on March 10, 1957, could not be transferred to the new Tribunal under thi" section. This content.ion is clearly untenable, because the whole object of s.30(2) is to provide for the hearing of disputes which were pending before the old Tribunal, and its operation is entirely retrospective. This contention must therefore be rejected.

In the result, the repeal fails and is dismissed with costs. "

A ppe, al dismissed.

SRI SATYA NARAIN SINGH

DISTRICT ENGINEER, P.W.D. AND ANOTHEli

(B. P. SINHA, J. L. KAPUR, M. HIDAYATULLAH, J. C. SHAH and J, R. M:uDHOLKAR, JJ.)

Pu.blic ferry--Toll-Right to coUe<t from Governrnent Roadway JJuses-Co nmercial undertaking by Government, if public service-Hotijication No 252/IX-209/ (10) dated March.

JG, 1925-Northern India Ferries Act, 1878 (XVII of 1878) • 15.

The appellant being the highest bidder at a public auc tion got the right to collect the toll in respect of ferry for crossing the river of Piprighat for the year 1954. The'practice upto 1954 wa.• to allow the licensee to collect the toll from every stage carriage bus.

Till March of the year 1954 only privately owned stage carriage buses used to ply on the route.

Thereafter the route \\'as taken over by the Roadways department of the State of Uttar Pradesh. The applicant was informed 1'.nter alia that no toll \vas leviablc on the Roadways Vehicles and was asked to pay the monthly instalments of the 1ictnse fee without making any deduction therefor consequent upon the exemption of the Roadways buses from tolls. The point for consideration foter alia is whether tii~

Thi Atlus Cycl1 lndnJtries. Ltd,,

Sonepat

Their Workmen

Venkatarama

Aiyar J.

1962.

Februaty II.

S1i Saij'a N arai11

i11gh

•• Di.1tric1 Enginttr,

l'.lf'.O.

Muilwlkar J.

106 sePREME COCRT n.EP01{'f8 (HJ62] SCPP.

appella11t was bouru.l tu allo\\'. the state carriage buses 0f U.P.

Governrncnt tu cross the river by ferry \Vithout collecting any toll.

/leld, that the notification No. 252/IX-209/( 10) dated March 16, 1925 exc1npts a vehicle crossing the river on 'public or district board service', an<l it could not be said that plying motor busrs by way of comn1ercial activity is n1nning it on a public service. 'l'he vcluclcs of the lload,, ays depart mcnt of the Gover11mc11t of Uttar Pradesh crossing over ferries cannot be regarded as crossing on public service.

It may be that plying stage carri<lge buses rvcn though for hire is an activity undertaken by the Government for ensuring the people a cheap, regular and reliable. 1node of tr:lnsport and is in that sense beneficial to the public, but it does not cease to be a co1nn1crcial activjty if it is run with 1profit mo1ive.

The vehicles of the Road, vays crossing the river cannot be exempted under the l'iotification of March 15, 1925.

Jleld, further that activities undertaken in the exercise of the sovereign power of the state or of Governn1enta} functions arc undoubtedly to be regarded as public services bul a pure business undertaking though run by the Govcrninent cannot be classified as pubJic service.

An activity however beneficial to the people and hov\'cvCr useful cannot reasonably be regarded as public service an<l cease to be a commercial undertaking if it is of a type \\'hich n1ay be carried on by private individuals ahd is carried on by Government \\'ith a distinct profit rnotivc. lly reason of the fact that a co1nmercial undertaking is O\'tncd and run by the State, it docs not ipso fachJ Uccome a "public service".

Crvn. APPELLA'rE Ju1mm!C'nox: C. A. No. 4:J5 of 1958.

Appeal from the judgment and order dated September :10, 1!156 of the Allahabad High Court in

pectal Appeal Xo. 243 of 1955.

Naunit Lal for the appellant.

G. N. Dikshit and C. P. Lal for tho 1-tespondent.

1962. February 8.

The following Judgment of the Court was delivered by

:\IuDHOLKAR, J.-This is an appeal by certificate from tho judgment of the High Court of

Allahabad reversing the decision of a single Judge of that Court directing the issue of a writ of Mandamus against the respondents under Art. 226 of the Constitution. The points which arise for consideration in the appeal are whether the appellant who was at the relevant time the lessee of a right to collect tolls from persons, vehicles etc., crossing the river by public ferry at Pipraghat, District Ballia was bound to allow State carriage buses belonging to the Government of Uttar Pradesh to cross the river by the ferry without collecting any toll or was entitled to claim abatement of rent from the Government under the proviso to s.15 of the .Northern India Ferries Act 1878 (hereafter referred to as the Act).

In order to appreuiate the points a few facts need to be stated. There is a ferry at the village Pipraghat, district Ballin for crossing the river and the right to collect tolls in respect of that ferry is put to public auction annually. The highest bidder at the auction gets the right.

The rent or licence fee is collected from him in monthly instalments during the year with respect to which the right was purchased by the licensee. The appellant was the highest bidder for the year 1954 and the licence fee payable by him was Rs. 31,751/·. The practice right upto 1954 .was to allow the lessee to collect a toll of Rs. 5-1-0 from every stage carriage bus. Till March 9 of tha.t year only privately owned stage carriage bt1ses used to ply on the route in which the ferry crossing was comprised.

Thereafter the r0ute has been taken over by the Roadways Dapartment of tha State of Uttar

Pradesh. From March 9 to March 16, the appellant realised tolls at Rs. 5.J.O from the State-owned stage carriage buses when he was informed by a ]13tter by the first respondent that he should allow the Roadways buses to use the ferry for crossing and recrossing the river on credit till March ill, 1954 and should thereafter submit his bill with

Sri Satya Narain Singh v.

District En.e, inrer,

P. W.D.

J1.udholkar J.

'-'ri Sa:ya Nt.rain 8i11gh

•• Di!trid E11ginttt,

P. W. D.

.ll 11dhol kar .J;

108 SUPRR:\fE COURT REPORTS [1962] £UPP.

respect to the tolls to the Roa<lways Department of the Government_\He was also informed that further

or<lers will he issmd on April I, 19ii4.

The a.ppella nt accordingly a I low< cl the H.oad ways buses to use the ferry for erosing and rP-r-rossiug the rivor and submitted his bill to the Roadways Department on J\Iarch :ll, HJ, i.i.

That bill was, howover, not paid.

On April I, I !);";.i he received two communications from respondeut no. I by one of which ho was iufo1 med that no toll is leviab.le ou the Roadways vehieles an<l by another he was asked to pay the mouthlv instalment of t.he liccnc<' foe without making. auy deduetion therefor consequent upon the exemption of tho Roadways busrs from tolls.

The appellant had move<l the High Court of Allahabad under Art. ~26 of tlw Constitution fur the issue of a wt it directing the respondent "to refrain from precluding the pditioner from charging tolls from the Hoadwavs hus1s"', to issue a writ comm:inding the respon; lents to ;; llow a batcmt>nt to tlw appellant and to issun rm int1l'im direction to the respondents asking tht!m to refrain from rcalis

ing the unpaid monthly instalments of the licence fees till the decision was gi1",11.

Before the petition was decided the appellant's licence had run out and, therefore, at the hearing the appellnnt confined himself to one relief, tha, t id, commanrling the rnspondcnts to allow rebate une account of the excmp tion of the Roadw:iys buses from liability to pay the tolls. The petition W•L<, however, not amendP-d.

We may incidentally mention that 11part. from the

relief,; a.bo\'C referred to, the appellant clrdmed two more reliefo, one of which was to pass any such

oth•-r and further order as may be 1lc1nwd fit and proper.

The learned single , Judge of t.he High Court

h,9 decided the petition ill the first instance cme

~ S.C.R. SUPBEMJ1J COUBT REPOBTS lO!:J

to the conclusion that the appelhnt was entitled to abatement of rent under the third paragraph of s.15 of the Act and directed the issue of a writ tu the respondents directing them to "perform their statutory duty relating to abatement of rent" payable by the appellant consequent on the exemption ofBoad-

Wll, JS buses from payment of tolls under the aforesaid provision before claiming or recovering arrears of rent from him.

The respondents preferred an appeal under the Letters Patent which was heard by a Division Bench of the Allahabad High Court.

The learned Judges held that a licensee is not entitled to abatement of rent unless the Government makes a declaration under s.15 of the Act subsequent to the grant of licence to him. It pointed out that the G.O. No. 1946/17-,') l dated December 11, 1951 upon which reliance was placed by the learned single Judge being prior in point uf time to the grant of the licence to collect tolls to the appellant, did not entitle him to claim abatement. It, however, held that the appellant may be entitled to claim abatement of rent or licence fee under the general law but that such a relief could be claimed only in a suit but not in a proceeding under Art. 226 of the Constitution.

They thus allowed the appeal and dismissed the petition.

Section 15 of the Northern India Ferries Act, 1878 runs thus:

"Toll, according to such rates as are from time to time fixed b} the State Government, shall be levied on all persons, animals, vehicles and other things crossing any river by a public ferry and not employed or transmitted on the public service: Provided that the State Government may from time to time, declare that any persons, animals, vehicles or other things shall be exempt from payment of such tolls .

Sri Satya Jllarain

8ingh

DiBtrict Engi111er1

P. lV. D.

Mudhollcar J.

Sri "aty.i Na rain

Sir.gh

Dirtrict f~'neintn,

p_ IF. D.

!rludlw/kar J,

I 10 SUPREfE COIJR.T REPORTS [1962] SUPP.

. \VherP the tolls of a. ferry have been let under sction 8, any such decl>iration, if made

nftr the date of the lease, shall entitle the ]Pssce to such abatement of the rent payable in rc8poct of tho tolls as may be fixed by the . Commisioner of the division or such other officer as tho :qtatc Government may, from timp, to time, appoint in this behalf by 11ame or virtue of his office." The proviso to the section confers upon the State Govp, rnment power to declare from time to time any persons, anima Is, vehicles etc., exempt from p'\yment of such tolls.

Before the question of allo\\'imr ahatement of rnnt or licence fee can arise it must first ho est.ah!ishod that there was a valid exempt.ion with respect to any vehicles etc., under s. 15 of the Act.

The section also provides that where such declaration is ma.de sub- 8equent to the grant of licence to colloct tolls under s. 8 the licensee is entitled to abatement of rent.: The Government order to which reference has been made in th<> two judgments of the High Court runs as follows:

"Subject: Exemption from payment. of toll.

I am dt•sircd to sa:v that a question ha.a hecn raised whether the Roadways Motor v., hicles should be exempt from payment of

forrv tolls while crollSing any river by a

public ferry.

Government have given their full consiclera.t.ion to this matter and havti come to the conclusion that the motor vehicles run by the Road\\'ays with the operational fitaff 'accompanying them on duty fall under the exemption granted from payment of frrry toll in paragraphs 2(a) of notification no. 252/-fX.20!J/(10) dated March 16, Ul25

(published on page 347 of the District Board Manual). . 2.

I am, however, to observe tbat the passengers travelling in these vehicles with their goods and all the private goodF, being tans ported in the Roadways trucks shall be hable to the payment of tolls as heretofore according to the rates fixed by the Local Government. 3.

The District Magistrate, District Board and ferry contractors in your division may please be informed accordingly.'' It may be pointed out that this order, if what appears to be merely a communication addressed to certain authorities can be regarded as a Government order, does not itself confer any exemption with respect to the buses run by the U. P. Roadways but sets out. the opinion of the Government that such buses must be regarded as being exempted under a notification of March 16, 1925 issued under s. 15 of the Act. That notification reads thus:

"2. The following shall be exempt from the payment of tolls:

(a) All persons animals and vehicles crossing -tny river by a public ferry when employed or transmitted on the public or District Board service."

Admittedly at that date thn State was not running any bus services in the IJnited Provinces (now the State of Uttar Pradesh). May be there were no Government-owned buses at all in any other province of India at that time. Moreover it would not be reasonable to assume that a State enterprise of this kind was even in the contemplation of the U. P. Government nt that time. At that time, apart from running some railways the

Stiite had not entered the commercial field.· It is in the light of these facts that the language of the notification of March 16, 1925, must be interpreted.

196Z

Sri Satya Narain

Singh

Dislrict Engineer,

P.W.D.

M u.dholkar J,

Sri Satya .1\'aroi11

Sm.r; h

"· Diilrict E11Ji11tt1,

P. W. D.

Mudholkar J.

ii2 SUPREi\IE COtJRT HEPORTS [l!l62] surP.

What the notification exmpts is <L vehicle crossing the ri1cr on 'pulilic or diHtrict board service'.

Could it be said that plying motor buses liy wa~· of commercial activity is running it 011 a public service? It is undoulitedly not easy to define what is "public s•?rvice" and rach activity has t.o he

consiriered by itself for dciding whether it is carried on as a public service or 11ot.

Certain activitil'B will undoubtedly he regarded as public services, as for instance, t.hose undertaken in the exercise of thl: sovereign power of the State or of governmental functions.

About these there can be no doubt. Similarly a pure business undertaking though rnn by the Government cannot be classificd as public service.

But whern a particular activity concerns a public utility a question may aiise whether it falls in the first or the second category.

The mero fact that that activity may be useful to the public would not necessarily render it public service. An activity howe\•er beneficial to the people and however useful cannot, in our opinion, he reasonably regarded as public service if it is of a typu which may be carried on by private individuals and is carried on by government with a distinct pn>fit motive. It may be that plying stage carriage buses even though for hire is an acthity undertaken by the Government for ensuring the people a cheap, regular and reliable mode of tranoport and is in that sense henrficial to the public. It does not, however, cease to be a commercial activity if it is run with profit motive.

Indeed even private operators in order to attract custom are also interested in providing the samo facilities to the public as the Government under-· taking provides. Since that is so, it is difficult to see what difference there is between the activity

carried on by private individuals and that carried on by Government. By reason of the fact that a commercial undertaking is owned and run by the State

\ -

it dos not ipso .facto bepome a 'public service'. It is not disputed before us that the Roadways department of the Government of U. P. is running a profit making and a profitable activity by excluding every kind of competition. In the circumstances, therefore, we find it impossible to hold that its vehicles crossing over ferries can be regarded ltB crossing on public service. They are, therefore, not entitlec'I to any exemption under the notification of March 15, 1925. Since thev are not entitled to any exemption the question of abatPment of rent does not arise.

It is true that the petitioner, as already stated, confined himself at the sfa ge of ar1rnments in the High Court to the relief of abatement because of change of circumstances which took place between the date of filing his petition and its hearing. He did so evidently upon a misundAr

standing of the legal position with regard to the scope of the notification of March 16, l!l25.

How ever, the appellant has raised an alternntive con tention in his Statement of the case to the effect that the Roadways buses which carry passengers are used by the Government for carrying on a commercial undertaking '1.nd that; therefore they do not come within the exemption made by the noti fica ti on of the year 1925.

In view of this and of the fact that the petition which contains a prayer for grant of 'other relief' has not been amended and is thus in its original form we see no difficulty in granting appropriate relief to the appellant.

In the result we allow the appeal and set a•ide the judgment of the Division Bench as well as of the single judge of the High Court of Allahabad and direct that a writ in the nature of mandamus shall issue to the respondents directing them to pay to the appellant full tolls with respect to every

196t

Sri Satya Narai'i

Sint, h

"· District Engineer,

P. W.D.

Mudholkar J.

Sri Sntya .1Va1ain

Sill th

Dist1ict Enginr:<r,

P. W.D.

Mudholkar J,

Ftbruary fl.

114 SUPRE:IIE COURT REPORTS [.962] St.:I P.

crossing of the' Roadways buses over t.he ferry betwe<'n l\farch 16, 191">4, and the dnto on which the licence in favour of the appellant expired. • The costs of the appellant here and in the High Court will lrn borne by the r•,8pondents.

Appeal allou:ed.

IXDER LAL v.

LAL SINGH

(P. B. GA.JJ::>DRAC:ADKAU, A. K. SARKAU e.ncl

IC N. \VANCHOO, JJ.)

Elccfion~--Cornpf Praclicr-Faf.i; e statement in relatt'on to 7ir.u; o11al 1;/ir1ractcr ()Y r:onducl of canitidaU-StaU.nient alleging ]Htrr}, osing of iof-es-lj tf'dales to pi.rsonal charactr:r-Rcpresnla rion of II" l'eop!c Act, 1951 ( 4:J of Jli:jl), "· 123 (4).

Respondent I was declared rlected to the Legislative Asscrnbly. llis election \\'as challenged, inter a./ia, on the ground that he had committed the rorrupt practice under s. 123 (4~ of the Rep"sentation af People Act, 1951 of making false statements in relation to the personal character or conduct uf H.espo11dent 2, a defeated candidate. The staterrcnts "ere rontained in a pamphlet issued by the agent of Respondent I ,, ith his consent.

Among other statements the patnphlct contained a false statement that the Respondent 2 \\'as ''purchasrr of the cpponents of the Congress hy rncans of moneyn.

Respondent I cont, nded that the staten1ent related to the public: or political character of Respondent 2 an<l not to his private character and did not fall within the mischief of s. 123 (4).

!If-Id, that the statement rlated to the personal character of l{t"spondent 2 and Respondent 1 "'"as guilty of thr. corrupt practice under s. 123 (4) of the Ar.t. The offending staternent amounted to an allegation that Respondent 2 bought the votes of the opponents of the Congrcs by offering bribes.

Bribery \Vas itself a corrupt practice and an allegation of bribery involved moral t11rpitude anrlclearly and unfquivocally affected the private character of Respondent 2.

SRI SATYA NARAIN SINGH

DISTRICT ENGINEER, P.W.D. AND ANOTHEli

B. P. SINHA, J.

L. KAPUR

M. HIDAYATULLAH, J.

C. SHAH

Northern India Ferries Act, 1878

Art. 226

Northern India Ferries Act 1878

Art. 226

Section 15

Northern India Ferries Act, 1878

s. 15

s. 8

s. 15

s. 123

People Act, 1951

s. 123

s. 123


Sri Sntya .1Va1ain

Sill th

Dist1ict Enginr:<r,

P. W.D.

Mudholkar J,

Ftbruary fl.

114 SUPRE:IIE COURT REPORTS [.962] St.:I P.

crossing of the' Roadways buses over t.he ferry betwe<'n l\farch 16, 191">4, and the dnto on which the licence in favour of the appellant expired. • The costs of the appellant here and in the High Court will lrn borne by the r•,8pondents.

Appeal allou:ed.

IXDER LAL v.

LAL SINGH

(P. B. GA.JJ::>DRAC:ADKAU, A. K. SARKAU e.ncl

IC N. \VANCHOO, JJ.)

Elccfion~--Cornpf Praclicr-Faf.i; e statement in relatt'on to 7ir.u; o11al 1;/ir1ractcr ()Y r:onducl of canitidaU-StaU.nient alleging ]Htrr}, osing of iof-es-lj tf'dales to pi.rsonal charactr:r-Rcpresnla rion of II" l'eop!c Act, 1951 ( 4:J of Jli:jl), "· 123 (4).

Respondent I was declared rlected to the Legislative Asscrnbly. llis election \\'as challenged, inter a./ia, on the ground that he had committed the rorrupt practice under s. 123 (4~ of the Rep"sentation af People Act, 1951 of making false statements in relation to the personal character or conduct uf H.espo11dent 2, a defeated candidate. The staterrcnts "ere rontained in a pamphlet issued by the agent of Respondent I ,, ith his consent.

Among other statements the patnphlct contained a false statement that the Respondent 2 \\'as ''purchasrr of the cpponents of the Congress hy rncans of moneyn.

Respondent I cont, nded that the staten1ent related to the public: or political character of Respondent 2 an<l not to his private character and did not fall within the mischief of s. 123 (4).

!If-Id, that the statement rlated to the personal character of l{t"spondent 2 and Respondent 1 "'"as guilty of thr. corrupt practice under s. 123 (4) of the Ar.t. The offending staternent amounted to an allegation that Respondent 2 bought the votes of the opponents of the Congrcs by offering bribes.

Bribery \Vas itself a corrupt practice and an allegation of bribery involved moral t11rpitude anrlclearly and unfquivocally affected the private character of Respondent 2.

CrVIL APPELLATE JURISDICTION: Civil Appeal No. 280 of 1961.

Appeal by special le!llle from the judgment and order dated August 2, 1960, of the Rajasthan High Court in D. E. Civil Misc. (Election) Appeal No. I of 1960.

G. 8. Pathak, A. V. Viswanatha 8astri, 8. N.

Andley and P. L. Vohra, for the appellant. ·

G. C. Mathur, for the respondent No. 2.

1962. February 8. The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-This appeal by special leave arises out of an election petition filed by the appellant challenging the validity of the eleotion of respondent No. J, Lal Singh on several grounds.

The appellant is an elector in the Chittorgarh Constituency and the election which led to the present petition was held in March. 1957, for the Rajasthan Legislative Assembly from the said constituency. As a result of the election, respondent No. 1 was declared to have been duly elected on the 11th March, 1957. He secured 7272 votes whereas respondent No. 2 Laxman Singh s/o Maharawal Sir Bijey Singh secured 7261 votes and respondent No. 3 Chhogalal secured 569 votes.

The appellant's cqse was that respondent No. l's election was invalid inasmuch as he had practised corrupt practices at the said election. According to the appellant, respondent No. l procured or abetted or attempted to 'procure either by himself or by his agents or by other persons with his connivance or that of his agents the reception of invalid votes and .as a result of the said votes, the result of the Election had been materially affected. The appellant stated in detail the manner in which the said invalid votes had been procured. The appellant further pleaded that respondent No. l, his agents and other persons with the connivance of respondent No. I or that of his agents published such

' 1861

/ndtr Lal v.

Lal Singh

lndv L•l

Lal Sinih

Go; ir1dragarllr.ar J.

116 SUPRE::\fE COURT REPORTS [1962) SUPP.

stR.tements of facts (Exts. 3 & 6) which were false nnd which thev either bolieved to be false or did not believe . to ·be true, in rrlation to the personal character or conduct of' respondent Xo. :! whirh were likely to prejudice tho prospect of respondent Ko. 2 at the election. It is on thrse two grounds

that the appellant claimed a declaration that the election of respondent ;\o. l was im-.ilid.

He also claimed that reRpondent No. 2 should be declared to have bl'cn validly elected.

ReRpondent No. 2 filed his written statement supporting the petition but he did not appear before the Tribunal at the hearing. RcRpondent No. 3 did not appear at all, while respor.dPnt No. I denied all the allegations made by the appt>llantand contended that the election petition filed by the appellant should he dismissed.

On the pleadings of th<' parties, the Election Tribunal framed as many as ~(j isnt>s. In substance

it held that the scvcrnl al!Pgations made by the appellant in respect. of the rccPipt of invalid votes had not been proved and so the first ground on which r<'spondent No. l's election was challenged by appellant, could not succeed.

In regard to the second ground on which rrspondcnt Xo. l 'H election was challenged by the appellant, the Tribu1rnl held that Ext. 3 had hecn published by the ageut of rcspo11dent No. I bnt; not with his expreRs consent and in regard to Ext. 6, the Tribunal was not Ratisfied that it hacl been published by respondent

o. l's agent.

Th:tt. is how even tho second grounrl made by the appellant disputing the Yalidity of respondent No. J's election did not sncc<'<'<L In the rPsult, the clt'ction petition was dismisHe<l.

Against the Haid decision, the ap]H•llant preferred an appeal in the RajaHthan High Court. Tho High Court confirmed the finding of the Tribunal on the first point in reg; ird t.o the receipt of invalid votes. It is true that tho High Court wa~ not

satisfied with the approach adopted by the Tribunal in dealing with this part of the oase and it thought that some of the reasons given by the Tribunal in support of its conclusions were not satisfactory.

lnder Lal

Lal Singh

Even so, the High Court felt that the final conclu- Gajendragadkar J, sion of the Tribunal was, on the whole, correct and need not be reversed. Thus both the Tribunal and the High Court have recorded findings against the appellant 0n the first part of his case.

In regard to the second contention raised by the appellant, the High Court has accepted the finding of the Tribunal about the publication of Ext. 3. In regard to the other document-Ext, 6, the High Court has reversed the conclusion of the Tribunal and held that the said document had been published for the benefit of respondent No. 1 and differing from the view taken by the Tribunal, the High Court has held that the publication. of both the pamphlets was with consent of respondent No. 1

and so was outside the purview of s. 100(2) of the Representation of the People Act 1951 (43 of 1951) (hereinafter called the Act). H •:wing thus found that the two pamphlets had been published by the agent of respondent No. l and with his consent, the High Court proceded to examine the question as to whether the material allegations made against respondent No. 2 by the said pamphlets were true or false.

The High Court held that the said material allegations were false and it came to the conclusion that they were calculated to effect prejudicially the prospects of the election of respondent No. 2.

The High Court was, however, not satisfied that the said allegations had relation to the personal character or conduct of respondent No. 2 and so it held that the corrupt practice alleged by the appellant against respondent No. 2 on the strength of the said two pamphlets under s. 123(4) of the act had not been proved. The result was that though the High Court differed from the Election Tribunal in regard to some of the findings recordecl

Lol Singh

118 SUPREME COURT REPORTS [1962] SUl'l>,

by the Tribunal on the second ground it;; ultimate conclusion was the" same as that orthe Tribunal.

Tho appeal preferred by the appellant was accordingly dismissed. lt is against this order that the appellant has come to this Court by Special leave.

In thi• appeal, the only question which we aru called upon to consider is whether the two pamphlets justify tho wntention of the appellant that respondent No. 1 has committed a corrupt practice under s. 153( 4). The question a.s to whether respondent Nu. l's election has been materially assisted by the receipt of invalid votes, is concluded by concurrent fiudiug of fact recordod against the appellant and su we have not allowed Mr. Sastri to dispute the correctness of that finding .

. Before dealing with the short point raised for our decision under s. 123(4) of the Act, it is necessary to sot out the material portion of the pamphlets on which the appellant's case uf currupt practice is based. The relevant portion in the pamphlet Ext, 3 to which objection is ta.ken by the appellant reads thus :-

"(1) Enemy of Democracy? (2) Agent of th:i foreigners strangling the freedom of Bharat?

(3) Supporter and collaborator of the conspiracy of Pakistani attack on Bharat?

(4) Bringer of tyrannical rule of Rajas in Rajastha.n?

(5) Destroyer of Hindu 2\Iuslim unity by raising tho slogan of Ham llajya.?

(6) Purchaser of the opponents of tho Congress by means of Money?

"Maharawal of Dungarpur, Shri Laxman Singh, who was defeated in the last election by thousands of votes, has come to mislead the people of Chittor, has come to push back the backward district of Chittor by 100 years, has come to destroy the peace and tranquillity of Chittor under cover of communal organisation, has come to provide means to the public to spend their hard earned money on drinking orgies, has come to intensify again the tynmny of Raja Maha.rajas in Rajasthan, has come to make a gift of Kashmir to the aggressor Pakistan, has come to enslave India again by collaborating with Pakistan and Pakistan's friends.

He is a friend of Raja Maharajas and an enemy of cultivators and labourers. He wants to grant la, nd to Bhoosw<tmis and thereby oust the cultivators and wants to establish once more his pa.gent by exploitation of the hard labour of cultivators," The other pamphlet contains substantially the same portion and so it need not be reproduced.

It is urged for thii appellant that in describing respondent No. 2 as the agent of foreigners strangling the freedom of Bharat, the personal character of respondent No. 2 has been falsely and adversely criticised. The same comment is made in respect of the description of respondent No. 2 as the supporter and collaborator of the conspiracy of Pakistani attack on Bharat and in support of this argument, reliance has been placed on the further statement in the pamphlet that respondent No. 2 had come to make a gift of Kashmir to the aggressor Pakistan and had come to enslave India by collaborating with Pakistan and Pakistan's friends.

It is also argued that describing respondent No. 2 as the purchaser of the opponents of the Congress by means of money, attracts the provisions of 123 ( 4). It is mainly on these three allegations in the

J96Z

InderSingh

Lal Singh

Gajendragadkar J.

1!162

Jndu 5;, igh

Lal Singh

Gqjtn-iragodhar J.

120 SUPH.EME COURT REPORTS (1962) SUPP.

pamphlet that the case of the appellant rests and tho argument is that by making theso allegations, tho private character of respondent :N'o. :! has been falsely vilified and that tho said vilification was reasona1Jly calculated to prejudice the prospects of

his election.

On the other hand, for respondent No. I .\-Ir. :lfathur who appcarnd u.m-icus curu.ie at our request has contended that :ill the thrne allegations, though false, cannot he said to touch or effect the private character of respondent No. 2.

He has argued that in dealing with s. l:.!3 (4), it is neceBSary to make a distinction between the personal or private oharaeter or conduct of a candidate and his public or political character. :\Ir. llfathur's contcntibn is that though the criticism made againt respondent No. 2 by tho impugned pamphlet may be extravagant, uuroasonablc and false, >it is nevertheless

criticism made against him in his public and politi

cal character and as such, a. 123 (4) cannot be invoked.

It is, therefore, necessary to determine the true scope and effect of the relevant provision in s. 123 (4). Section 123 dea!s with corrupt praoticea and amongst them, is the corrupt practice specified by sub-section (4). That sub.section roads thus :-

"The publication by 0: candidate or his agent or by any other1person, of any statement of fact which is false, and which he either believes to bo false or docs not believe to be true, in relation to tho personal character or conduct of any candidate, or in relation to tho candidature, or withdrawal, or retirement from contest, of any candidate, being a. statement reasonably calculated to prejudice the prospects of that candidate's election." It would thus be aeon that the publication in question must be by a candidate or his agent or by any other person ; the said publication should be

in regard to a statement of fact which is false and which he either believes to be false or does not believe to be true ; that it must have relation to the personal character or conduct of the candidate, or should have relation to the candidature, withdrawal or retirement from contest of any candidate and that it should be astatement reasonably calculated to prejudice the prospects of that candidate's election.

All the requirements of this sub-section, except one, are held to have been satisfied by the High Court.

The only requirement of the sub-section which has not been satisfied according to the High Court is that the statement has no relation to the personal character or conduct of respondent No. 2. Mr.

Sastri contends that this finding of the High Court is erroneous in law.

It would be noticed that in prescribing the requirement that the false statement should have relation to the personal character of the candidate, a distinction is intended to be drawn between the personal character of the candidate and his public

or political character.

The provision postulates that if a false statement is made in regard to the public or political character of the candidate, .it would not constitute a corrupt practice even if it is likely to prejudice the prospects of that candidate's election.

This assumption is presumably based on the theory that the electorate being politically educated and mature, would not be deceived by a false criticism against the public or political character of any candidate.

The public and political character of a candidate is open to public view and public criticism and even if any false statements are made about the political viewa of a candidate or his public conduct or character, the electorate would be able to judge the allegations on the merits and may not be misled by any false allegations. in that behalf. It is on this theory that false statements of fact effecting the public or political character of a candidate are not brought

Inder Lal

Lal Singh

Gajendragadk'lr J.

J9G2

Jr, dn Lal v.

Lal Si1:9h

G•jtndro1:adkdr J.

122 SUPRE~IE COUHT REPORTS [!DG5J Sl'PP.

within the mischief of ss. 123(4). In order that tho elections should be free, it is necessary that tho electorate should be educated on political i&mcs in a fearless manner and so, the Legislature thought that full and ample scope should bo left for free and fcarloss criticism by candidates against tho public and political character of their opponents.

But the position with regard to the private or persona.I character of the candidate is very different.

Circulation of false statements about tho private or. personal character of the candidate during tho period preceding elections is likely to work against tho freedom of election itself inasmuch as the effect created by false statements cannot be met by denials in proper time and so tho Constituency h<l<! t, o be protected against tho circulation of such false statements which are likely to effect tho voting of the electors. That is why it is for the protection of the constituency against acts which would be fatal to the freedom of election that tho statute provides for the inclusion of the circulation of false statements concerning tho private character of a. candidate amongst corrupt practices. Dissemination of false statements about the personal character of a candidate thus constitutes a corrupt practice.

Though it is clear that tho statute wants to make a broad distinction between public and political character on the one hand and private character on the other, it is obvious that a sharp and clear-cut dividing lino cannot be drawn to distinguish the one from the other. In discussing the distinction between the private cha.racter and the public character, sometimes reference is made to the "an

beneath the politician" and it iH said that 1f a statement of fact e.ffcc:ts the man beneath the politician it touches private character a:nd .if it affects the politician. It does not touch his private

- character. There may be some false statements of

fact which clearly affect the private character of

...

the candidate ; if, for instance, it is said that the C'Jtrididate is a cheat or murderer there can be no doubt that the statement is in regard to his private character and conduct and so if the statement is shown to be false, it would undoubtedly be. a corrupt practice. Similarly, if the economic policy of the party to which the candidate belongs or its political idealogy is falsely criticised and in strong words it is suggested that the said poliqy and idea. logy would cause .the ruin of . the country, that clearly would be criticism, though false, against the public character of the candidate and his political party and as such, it would be outside the purview . of the statute. But there may be oases on the border-line where the false statement may affect both the politician and the man beneath the politician and it is precisely in dealing with cases on the border-line that difficulties are experienced in determining whether the impugned false statement constitutes a corrupt practice or not. If, for instance, it is said that in his public life, the candidate has utilised his position for the selfish purpose of secur ing jobs for his relations, it may be argued that it is criticism against the candidate in his public character and it may also be suggested that it nevertheless affects his private character. Therefore, it is clear that in dealing with corrupt practices alleged under s. 123( 4) where we are concerned with border-line cases, we will have to draw a working line to distinguish private character from public character and it may also have to be borne in mind that in some cases, the false statement may affect both the private and the public character as well. .

In the present case, we are satisfied that the allegation made in the pamphlet that respondent No. 2 is a purchaser of the opponents of the Congress by means of money clearly attracts the

[nder Lal v.

Lal Singh

Ga;'u1dragadkar ./.

lllft

/11der J., al

lal ,'•lin:J'i

CajcndragadJ; a1 J,

' 124 SCPREllIE COCRT REPORTS [19132] SUPP.

provisions of ss. 123(4). In plain terms, the statement amounts to an allegation that respondent :N'o. 2 buys by offering bribes the votes of the opponents of tho Congress.

Bribery is itself a a corrupt practice and if it iH saicl ag:inst a candidate that the practices the corrnpt practice of

buying the votes of the opponents of the Congress by means of bribery, that clearly and unequivocally affects his private chnracter. Olfeiing a bribe in an election introduces an element of moral turpitude and it cannot be denied that a person who offers bribe loses reputation as an individual in the eyes of the public. The statement alleges that the bribes are offered by respondent No. 2 for the purpose of election and in that sense it may be that it is his public character which is falsely criticised.

But, in our opinion, it would be idle to oontend that it is a false statement only against the public character of respondent :N'o. 2.

Having regard to the moral turpitude involved in tho offering of tho bribe, the statement in question undoubtedly af(ects his private character as woll. Unfortunately, in dealing with this point, the High Court dotlS not appear to have considcrd this statement at all.

It has dealt with this problem in vory genera.I term~.

It has obsorved that tho impugned statements all refer to the Maharawal as one of thoso various persons of his class who as a body appear to be responsible in the opinion of the writer for tho political mischiefs referred to in the statements, and that a general reading of the document shows that the attack upon him is a part of a bigger organisation of individuals who do not appear to

be as the writer thinks, well inclined towards the progross of the country.

I.tis perfectly. trne that in dealin" with the contont1on that the false statement cotained in tho pamphlet amounts to a

corrupt practice under ss. 12314), it .is Bccessa.ry. to read the document as a whole before determmmg the effect of any particular objectionable statement.

i i ...

But reading the document as a whole, we see no justification whatever for the view expressed by the High Court that the criticism made in the document is directed against a body of persons and not against respond<'nt No. 2 himself.

The failure of the High Court to deal with the. several specific statements on which the argument of the appellant is based, has introduced a serious infirmity in its final conclusion. If only the High Court had considered whether the allegation that respondent No. 2 was the purchaser of opponents of the Congress by me11ns of money, we are inclined to think that the High Court would not have brushed aside the appellant's case with the general observations which it has made in its judgment. We are, therefore, satisfied that the appellant is right in contending that the false statement of fact to which we have just referred constitutes a corrupt practice under ss. 123(4) of the Act.

In that view of the matier, it is unnecessary to consider whether the other impugned statements of fact also attract the provisions of ss. 123( 4).

In the result, we must reverse the finding of the High Court that publication of the impugned pamphlets does not constitute a corrupt practice under ss. 1~3(4).

The result of this conrlnsion inevitably is that the election of responncnt No. 1 must be declared to be invalid because there is no doubt that the corrupt practioe proved in this case falls under section l OJ(b) and is outside the purview of section 100(2).

That takes to us the question as to whether respondent No. 2 can be declared to have been validly elected at the election in question.

This question will have to be necided in the light of provisions of section lOl(b) of the Aot.

The said section provides. inter alia, that "if any person who has lodged a petition ha8, in addition to callincr in question the election of the returned candidate,

lnder Lal v.

Lal Singh

Gajendragadkm J,

(ntftr Lal

Lal Singh

126 SUPREME COURT REPORTS [1962] SCPP.

claimed a declaration that any other candidate ha.a been duly elected and the Tribunal is of opinion that but for the votes obtained by such returned candidate by corrupt practices such other candidate would have obtained a majority of thu valid votes, the Tribunal shall after declaring the election of the returned candidate to he void declare such other candidate to have been duly elected." This question has not been considered by the High Court and it cannot be de<'ided unless the relevant fact.a arc examined on the merits and that normally would mean our reman11ing the case to the High Court for the decision of the point in acco1dance

wit.h law. We do not, however, propose to adopt such a course in view of the fact that it would be futile to give a11y further least' of life to this petition. The election which is challenged took place in 195i and in fact we are now on the verge of fresh elections which would take place this month.

That is why wo think it would serve no purposf

in sending the matter bark for the decision of the question as to whether on the evidence adduned in thn case, respondent No. 2 can be declared to have been validly elected.

The result iH, the a ppPal is allowed and the

elotion of r.~Hpondent No. I is set aside.

Since respondent o. I did nut appear, there would be no order as to costs.

Appml allowed.

IXDER LAL

LAL SINGH

s. 123

People Act, 1951

s. 123

s. 123

s. 100(2)

Representation of the People Act 1951

s. 123(4)

s. 153( 4)

s. 123(4)

s. 123

Section 123

ss. 123(4)

s. 123( 4)

ss. 123(4)

ss. 12314

ss. 123(4)

ss. 123( 4)

ss. 1

section 100(2)