Contractual Liability of the Government
Articles 294, 298, 299 and 300 of the constitution of India, deal with the contractual liability of the Government. Art 294 provides for succession by the present Governments of the Union and the states the property, aspects rights liabilities and obligations vested in the former Government. Art. 298 authorizes the Government to enter into contracts for the purpose of carrying out of the functions of the State. Article 299 provides essential formalities which a Government contract must fulfill and Article 300 deals with the procedure and the manner in which suits or proceedings against or by the Government may be instituted. It should be noted here that a Government contract in order to be valid must also fulfill the requirements of section 10 of the Indian Contract Act which deals with the essentials of a valid contract, beside fulfilling the requirements of Art, 299 (1) of the constitution. Similarly sections 73, 74 of the Indian Contract Act which contain the Principles for determining the quantum of damages also apply.
Application of the doctrine of waiver to the Government contract
Since the requirements of Art, 299 are mandatory; these cannot be waived by the Government. Privileges of the Government under the Civil Procedure Code and Evidence Act- Under Civil Procedure Code, the privilege available to the Government as compared to an individual is under section 80 of the Civil Procedure Code according to which no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done b such public officer capacity, until the expiration of two months next after notice in writing in the manner provided in the section.
Liability of the Government for Tort- English law-The immunity of the Crown from any civil
Criminal liability is based upon an ancient and fundamental principle of the English Constitution that “The King can do no wrong”. Earlier an action for a personal wrong will not lie against the sovereign. As such the crown cannot be sued for the tortuous acts of its servant.
Indian Law. In India the liability of the Government for the torts of their servants was accepted quite earlier than in England. In p. & o. Steam Navigation Co. Vs. The Secretary of State for India it was held that the Government is liable for the tortuous act of its servants.
According to Article 300 of the Indian Constitution, the Government of India and a State Government may sue and be sued in relation to their respective affairs in the like cases as Union of India and the corresponding Provinces or Indian Sates might sue or be sued if the constitution had not been passed.
- Rup Ram V. State of Punjab: P. a motor cyclist was seriously injured when the driver of a P.W.D truck dashed against him. It was held that the Government was liable. The Government’s argument that at the time of the accident,the driver was carrying materials for the construction of a bridge and that this was a Sovergin function and hence, the State was not liable was rejected by the court.
- Kasturilal. V. State of U.P: A was arrested on suspicion of having stolen gold. Gold so seized from him,was deposited in police Malkhana. A was acquitted. In the meanwhile, the Head Constable had stolen the gold and escaped to Pakisthan. A sued the Govt. for the return of the gold or for compensation. Gajendragadkar J held,that the State was not liable.