State And Its Liability: Admin Law Notes: Remedies for Actions of the administration is available to the individual against the State. However, they do not provide full redress to the aggrieved individual. Private citizens access to the ordinary courts and the ordinary legal remedies may be qualified by the existence of certain privileges and immunities enjoyed by the state. These privileges immunities though justified in the days in which they originated, are hardly justified in a democratic society. However, the state does enjoy and it may be necessary for it to enjoy certain privileges and immunities.
Administrative law is engaged in the process of redefining such privileges and immunities with a view to reconciling them with the needs of modern times. The Constitution clearly says that the executive power of the Union and of each state extends to ‘the carrying on for any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose’. The Constitution therefore, provides that a Government may sue or may be sued by its name. Similar provisions to be found in the Code of Civil Procedure. The above provisions do not, however, enlarge or restrict the extent of State liability; they merely provide the method of redress. The extent of liability will be discussed separately.
Privileges and Immunities of the Administration in Suits
The various privileges available to the Government under various statutes are as follows: –
Immunities from the operation of the statute.
In England the rule is that its own laws do not bind the Crown unless by express provision or by
necessary implication they are made binding on it. Thus in England the statutes are not binding on the crown unless by express provision or by necessary implication, they are made binding thereon. Its basis is the maxim “ the King can do on wrong.
This rule was followed even in India till 1967. In India the present position is that the statute binds the State or Government unless expressly or by necessary implication it has exempted or excluded from its operation. In case the State has been exempted from the operation of the statute expressly, there is no difficulty in ascertaining whether the statute is binding on the State or not but it becomes a difficult issue in case where the State is exempted from the operation of the statute by necessary implication. However, where the statute provides for criminal prosecution involving imprisonment, the statute is deemed to be excluded from the operation of the statute necessary implication.
PRIVILEGES AND IMMUNITIES UNDER THE CIVIL PROCEDURE CODE, 1908.
Section 80 (1) provides that no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered in the manner provided in the section. The section is mandatory and admits of no exception. Thus, the requirement of notice is mandatory.
However, it is to be noted that if a public officer acts without jurisdiction, the requirement of notice is not mandatory. Its object appears to provide the Government or the public officer an opportunity to consider the legal position thereon and settle the claim without litigation. The Government may waive the requirement of notice; the waiver may be express or implied.
The requirement of notice causes much inconvenience to the litigants especially when they seek
immediate relief against the Government. To minimize the hardships to the litigants a new Clause (20 was inserted in S.80 of the C.P.C by the Civil Procedure Code Amendment Act, 1970. The clause provides that the Court may grant leave to a person to file a suit against the Government or a public officer without serving the two-month’s notice in case where relief claimed is immediate and urgent. Before granting this exemption the Court is required to satisfy itself about the immediate and urgent need.
It is to be noted that S.80 of the C.P.C does not apply to a suit against a statutory Corporation.
Consequently in case the suit is filed against the statutory Corporation. Consequently, such notice is not required to be given in cases the suit is filed against statutory Corporation.
S.80 does not apply with respect to a claim against the Government before the claim Tribunal under the Motor Vehicle Act.
S.80 of the C.P.C. does not apply to a writ petition against the Government or a public officer, the
requirement of notice as provided under S.80 of the C.P.C is not required to be complied with S.82 of the C.P.C. also provide privilege to the Government. According to this section where in a suit by or against the Government or the public officer, a time shall be specified in the decreed within which shall be satisfied and if the decree is not satisfied writhing the time so specified and within three months from the date of the decree. Where no time is so specified, the Court shall report the case from the orders of the Government,. Thus a decree against the Government or a public officer is not executable immediately. The Court is required to specify the time within which the decree has to be satisfied and where no such time has been specified, three moths from the date of the decree will be taken to be the time within which is to be satisfied. If the decree is not satisfied within such time limit the Court shall report the case for the orders of the Government.
PRIVILEGES UNDER THE EVIDENCE ACT (PRIVILEGES TO WITHHOLD DOCUMENTS).
In England the Crown enjoys the privilege to withhold from producing a document before the Court in case the disclosure thereof is likely to jeopardize the public interest. In Duncon v. Cammel Laird Co. Ltd. ( 1942 AC 624)The Court held that the Crown is the sole judge to decide whether a document is a privileged one and the court cannot review the decision of the Crown. However, this decision has been overruled in the case of Conway v. Rimmer. ( 1968 AC 910) In this case the Court has held that it is not an absolute privilege of the Crown to decide whether a document is a privileged one. The court can see it and decide whether it is a privileged one or not. In India S. 123 provides that no one shall be permitted to give any evidence derived from unpublished official records relating to any affair of State except with the permission of the officer at the Head thinks fit.
Only those records relating to the affairs of the State are privileged, the disclosure of which would cause injury to the public interest. To claim this immunity the document must relate to affairs of state and disclosure thereof must be against interest of the State or public service and interest.
The section is based on the principle that the disclosure of the document in question would cause
injury to the public interest And that in case of conflict between the public interest and the private
interest, the private interest must yield to the public interest.
The Court has power to decide as to whether such communication has been made to the officer in
official confidence. For the application of S.124 the communication is required to have made to a
public officer in official confidence and the public officer must consider that the disclosure of the
communication will cause injury to the public interest.
According to S.162 a witness summoned to provide a document shall, if it is in his possession or
power, bring it to the Court, not with outstanding any objective which there may be to its production or to its admissibility. The Court shall decide on the validity of any such objection. The court, if it sees fit, may inspect the document, unless it refers to the matters of State or take other evidence to enable it to determine on its admissibility. If for such purpose it is necessary to cause any document to be translated the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the direction, he shall be held to have committed an offence under S.166 of the Indian Penal Code.
S. 162 apply not only to the official documents but also to the private documents. It is for the Court to decide as to whether a document is or is not a record relating to the affairs of the State. For this
purpose the Court can take evidence and may inspect the document itself.
Period of Limitation for Suit Against Government
Art 149 of the First Schedule of the Limitation Act of 1890 prescribed a longer period of limitation for suits by or on behalf of the State. The Act of 1963 contains a similar provision under Art 112. The Article applies to the Central Government an all the State Governments including the Government of the State of Jammu land Kashmir. This longer limitation period was based on the common law maxim nulla tempus occur it rein, that is, no time affects the Crown. The longer period of limitation, however, does not apply to appeals and applications by Government. Under s 5 of the Limitation Act, it is provided that an appeal or application may be admitted after the expiry of the period of limitation if the court is satisfied that there was sufficient cause for the delay. It was held that the government was not entitled to any special consideration in the matter of condo nation of delay.
Immunity from Promissory Estoppel
Estoppel is a rule whereby a party is precluded from denying the existence of some state of facts, which he had previously asserted and on which the other party has relied or is entitled to rely on. Courts, on the principle of equity, to avoid injustice, have evolved the doctrine of promissory estoppels. The doctrine of promissory estoppel or equitable estoppel is firmly established in administrative law. The doctrine represents a principle evolved by equity to avoid injustice.
Application of the doctrine against government is well established particularly where it is necessary to prevent manifest injustice to any individual. The doctrine of promissory estoppel against the Government also in exercise of its Government, public or executive functions, where it is necessary to prevent fraud or manifest injustice. The doctrine within the aforesaid limitations cannot be defeated on the plea of the executive necessity or freedom of future executive action. The doctrine cannot, however, be pressed into aid to compel the Government or the public authority “to carry out a representation or promise.
- which is contrary of law; or
- which is outside the authority or power of the Officer of the Government or of the public authority to make.
LIABILITY OF STATE OR GOVERNMENT IN CONTRACT
Article 298 provides that the executive power of the Union and of each State shall extend to the
carrying on of any trade or business and to the acquisition holding and disposal property and the
making of contracts for any purpose. Article 299 (I) lays down the manner of formulation of such
contract. Article 299 provides that all contracts in the exercise of the executive power of the union or of a State shall be expressed to be made by the President or by the Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorize.
Article 299 (2) makes it clear that neither the President nor the Governor Shall be personally liable in respect of any contract or assurance made or executed for the purposes of this Constitution or for the purposes of any enactment relating or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof. Subject to the provisions of Article 299 (1), the other provisions of the general law of contract apply even to the Government contract.
A contract with the Government of the Union or State will be valid and binding only if the following conditions are followed: –
- The contract with the Government will not be binding if it is not expressed to be made in the name of the President or the Governor, as the case may be.
- The contract must be executed on behalf of the President or the Governor of the State as the case may be. The word executed indicates that a contract with the Government will be valid only when it is in writing.
- A person duly authorized by the President or the Governor of the State, as the case may be, must execute the contract.
The above provisions of Article 299 are mandatory and the contract made in contravention thereof is void and unenforceable.
In India the remedy for the branch of a contract with Government is simply a suit for damages. The writ of mandamus could not be issued for the enforcement of contractual obligations. But the Supreme Court in its pronouncement in Gujarat State Financial Corporation v. Lotus Hotels, ((1983) 3 SCC 379) has taken a new stand and held that the writ of mandamus can be issued against the Government or its instrumentality for the enforcement of contractual obligations.
According to section 70 where a person lawfully does anything for another person or delivers anything to him such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of or to restore, the thing so done or delivered. If the requirements of Section 70 of the Indian Contract act are fulfilled, even the Government will be liable to pay compensation for the work actually done or services rendered by the State.
Section 70 is not based on any subsisting contract between the parties but is based on quasi-contract or restitution. Section 70 enables a person who actually supplies goods or renders some services not intending to do gratuitously, to claim compensation from the person who enjoys the benefit of the supply made or services rendered. It is a liability, which arise on equitable grounds even though express agreement or contract may not be proved.
Section 65 of the Indian Contract Act
If the agreement with the Government is void as the requirement of Article 299 (1) have not been complied, the party receiving the advantage under such agreement is bound to restore it or to make compensation for it to the person form whom he has received it. Thus if a contractor enters into agreement with the Government for the construction of go down and received payment therefore and the agreement is found to be void as the requirements of Article 299 (1) have not been complied with, the Government can recover the amount advanced to the contractor under Section 65 of the Indian Contract act. Action 65 provides that when an agreement is discovered to be void or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it to make compensation for it to the person from whom he received it.
For THE INDIAN CONTRACT ACT, 1872 Notes visit here
SUIT AGAINST STATE IN TORTS
Before discussing tortuous liability, it will be desirable to know the meaning of ‘tort’. A tort is a civil wrong arising out of breach of a civil duty or breach of non-contractual obligation. The word ‘tort’ has been defined in Chambers Dictionary in the following words; “Tort is any wrong or injury not arising out of contact for which there is remedy by compensation or damages.”
Thus, tort is a civil wrong, which arises either out of breach of no contractual obligation or out of a breach of civil duty. In other words, tort is a civil wrong the only remedy for which is damages. The essential requirement for the arising of the tort is the beach of duty towards people in general. Although tort is a civil wrong, yet it would be wrong to think that all civil wrongs are torts. A civil wrong which arises out for the breach of contact cannot be put in the category of tort as it is different from a civil wrong arising out of the breach of duty towards public in general.
LIABILITY FOR TORTS
In India immunity of the Government for the tortious acts of its servants, based on the remnants of old feudalistic notion that the king cannot be sued in his own courts without his consent ever existed. The doctrine of sovereign immunity, a common law rule, which existed in England, also found place in the United States before 1946 Mr. Justice Holmes in 1907 declared for a unanimous Supreme Court: “A sovereign is exempt from suit not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.”
Today, hardly, anyone agrees that the stated ground for exempting the sovereign from suit is
either logical or practical.
VICARIOUS LIABILITY OF THE STATE
When the responsibility of the act of one person falls on another person, it is called vicarious liability. Such type of liabilities is very common. For example, when the servant of a person harms another person through his act, we held the servant as well as his master liable for the act done by the servant. Here what we mean is essentially the vicarious liability of the State for the torts committed by its servants in the exercise of their duty. The State would of course not be liable if the acts done were necessary for protection life or property. Acts such as judicial or quasi-judicial decisions done in good faith would not invite any liability. There are specific statutory provisions which the administrative authorities from liability. Such protection, however, would not Extent malicious act. The burden of proving that an act was malicious would lie on the person who assails the administrative action. The principles of law of torts would apply in the determination of what is a tort and all the defences available to the respondent in a suit for tort would be available to the public servant also. In India Article 300 declares that the Government of India or a of a State may be sued for the tortious acts of its servants in the same manner as the Dominion of India and the corresponding provinces could have been sued or have been sued before the commencement of the present Constitution. This rule is, however, subject to any such law made by the Parliament or the State Legislature.
Case Law on the tortious liability of the State
=P.and O. Steam Navigation v. Secretary of State for India. (5 Bom HCR App 1.)
=State of Rajasthan v. Vidyawati, (AIR 1962 SC 933)
=Kasturi Lal v. State of U. P. (AIR 1965 SC 1039)
It may happen that a public servant may be negligent in the exercise of his duty. It may, however, be difficult to recover compensation from him. From the point of view of the aggrieved person, compensation is more important than punishment. Therefore, like all other employers the State must be made vicariously liable for the wrongful acts of its servants The Courts in India are now becoming conscious about increasing cases of excesses and negligence on the part of the administration resulting in the negation of the personal liberty. Hence they are coming forward with the pronouncements holding the Government liable for damages even in those cases where the plea of sovereign function could have negative the governmental liability. Personal liability for abuse of power is a recent phenomenon
“In modern sense the distinction between sovereign and non-sovereign power does not exist. It all depends on the nature of power and manner of its exercise. Legislative supremacy under the Constitution arises out of Constitutional provisions. Similarly the executive is free to implement and administer the law. One of the tests to determine if the legislative or executive functions sovereign in nature is whether the State is answerable for such actions in courts of law, for instance, acts such as defense of the country, raising armed forces and maintain it, making peace or war, foreign-affairs, power external sovereignty and are political in nature. Therefore, they are not amenable to the jurisdiction of ordinary civil court. The State is immune from being sued as the jurisdiction of the courts in such matters is impliedly barred.”
But there the immunity ends. No civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner, as it is sovereign. No legal or political system today can place the State above law, as it is unjust and unfair for a citizen to be deprived of his property illegally by the negligent act of officers of State. The modern social thinking and judicial approach is to do away with archaic State protection and place the State or the Government at par with other juristic legal entity. Any watertight compartmentalization of the functions of the State as sovereign or non-sovereign is not sound. It is contrary to modern jurisprudence. But with the conceptual change of statutory power being statutory duty for sake of society and the people, the claim of a common man cannot be thrown out merely because it was done by an officer of the State official and the rights of the citizen are require to be reconciled so that the rule of law in a welfare State is not shaken. It is unfortunate that no legislation
has been enacted to lay down the law to torts in India. For that law, our courts have to draw from the English common law. Since the law of contract and the law of Sale of Goods and now the law of consumer protection have been enacted, it is high time that our Parliament enacts a law and thereby comes out of the legislative inertia.. The law in India on State liability has developed in the last two decades through judicial process. It has made the State liable for the torts of its servants. The courts have, however,
developed such a law without expressly overruling some of the earlier decision, which defined the State liability in very narrow terms.
For Torts Notes visit here