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Transcript of Liability in Tort
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LIABILITY IN TORT
The term "administration" is used synonymously with "State" or "Government". The
question as to what extent the State would be liable for the tortious acts committed by its
servants is a complex one. In other words, it refers to the vicarious liability of the State for
the wrongs committed by its servants. The answer to this vexed question is governed by the
principles of public law inherited from English Common Law.
The concept of vicarious liability is said to be founded on two maxims:
(i) Respondent superior (Let the principal be liable).
(ii) Quifacit per alium facit per se (He who does an act through another does it himself).
Lord Brougham, in Duncan v. Fin Later, explaining the concept observed:
The reason that I am liable in this, that by employing him I set the whole thing in
motion; and what he does, being done for my benefit and under my direction, I am
responsible for the consequences of doing it. Lord Pearce said that the doctrine of vicarious
liability was based on "social convenience and rough justice." Stating that there was no
reason why this doctrine should not be applied to the Crown in respect of torts committed
by its servants, His Lordship observed:
In fact, if the Crown is not held vicariously liable for such torts, the aggrieved party,
even though it had sustained a legal injury, would be without any effective remedy,inasmuch as the government servant may not have sufficient means to satisfy the judgment
and decree passed against him.
(a) Position in England
At Common Law, the Crown was always immuned from legal process. It was said that
"against the King the law had no coercive power." English law has always clung to the
amaxim "the King can do no wrong". It meant that the King had no legal power to do wrong.
The position was that the Crown could not be sued in tort either for wrong actuallyauthorised by it or committed by its servants, in the course of their employment. Further,
that no action could lie against the head of the department or other superior officials for the
acts of their subordinates for relationship between them was not of master and servant but
of fellow servants. The immunity implies that neither any wrong can be imputed to the
Crown nor could it authorise any wrong. One of the reasons for the doctrine of immunity as
implied from the maxim "King can do no wrong" was that it was regarded as an attribute of
sovereignty that the State could not be sued in its courts without its consent.
In Royster v. Cavey it was held that if it was necessary for a case to succeed, the
person named by the Treasury Solicitor should be the same who was apparently the
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wrongdoer. The position has been entirely changed after the passing of the Crown
Proceedings Act, 1947. Now the Crown is liable for a tort committed by its servants, just like
a private individual. Section 2 (1) of the Act provides:
"Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort
to which, if it were person of full age and capacity, it would be subject:
(a) In respect of torts committed by its servants or agents;
(b) In respect of any breach of those duties which a person owes to his servants or
agents at Common Law by reason of being their employer; and
(c) In respect of any breach of the duties attaching at common law to the ownership,
occupation, possession or control of property:
Provided that no proceeding shall lie against the Crown by virtue of paragraph (a) ofthis sub section in respect of any act or omission of a servant or agent of the crown unless
the act or omission would, apart from the provision of this Act, have given rise to a cause of
action in tort against the servant or agent of the estate
The Act, 1947makes the Crown in principle, liable for torts to the same extent as a
private person of full age and capacity, subject to expectation contained in Statues imposing
restrictions on the liability of any government department or officer.
(b) Position in India
(i) Position in General
Unlike the Crown Proceedings Act, 1947 (England), we do not have any statutory
provision mentioning the liability of the State in India. The position of State liability as stated
in Article 300 of the Constitution of India is as under:
" (1) The Government of India may sue and be sued by the name of Union of India and
the Government of a State may sue or be sued by the name of the State and may, subject to
any provision which may be made by Act of Parliament or of the Legislature of such Stateenacted by virtue of power conferred by this Constitution, sue or be sued in relation to their
respective affairs in the like cases as the Dominion of India and the corresponding Provinces
or the corresponding Indian States might have sued or been sued if this Constitution had not
been enacted.
(2) If, at the commencement of this Constitution
(a) any legal proceedings are pending to which Dominion of India is a party, the
Union of India shall be deemed to be substituted for the Dominion in those proceedings;
and
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(b) Any legal proceedings are pending to which a Province or an Indian State is a
party, the corresponding State shall be deemed to be substituted for the Province or the
Indian State in those proceedings."
Article 300, thus, provides that the Union of India and the States are juristic persons
for the purpose of suit or proceedings. Although the Union of India and State Governments
can sue and be sued, but the circumstances under which that can be done, have not been
mentioned. According to Article 300, the Union of India and the State Government can sue
or be sued in the like cases as the Dominion of India and the corresponding Indian States
might have sued or been sued if the Constitution had not been enacted. The position
prevailing before the commencement of the Constitution, therefore, remains unchanged
though the Parliament and the State Legislature have been empowered to pass laws to
change the position. To know the present position as regards the liability of the State for
tortious acts, we have to go back to the pre-Constitution days. For that, we refer to Sec. 176of the Government of India Act, 1935. That Act, like the present Constitution, did not give
the circumstances of the Government's liability but recognized the position prevailing
before the passing of that Act. We find a similar position in Sec. 32 of the Govt, of India Act,
1935 and ultimately we refer to the Govt. of India Act, 1858. Section 65 of that Act provides
as under:
"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 East India Company.
Therefore, to know whether the State is liable for a particular act or not, we have to find the
position of the East India Company prior to 1858.
An important case in this connection is Peninsular and Oriental Steam Navigation
Company v. Secretary of State for India.
In that case, the plaintiff's servant was travelling in a horse driven carriage and was
passing by the Kidderpore Dockyard in Calcutta, which is the government property. Due to
negligence on the part of the defendant's servants, a heavy piece of iron, which they were
carrying for the repair of a steamer, fell and its clang frightened the horse. The horse rushed
forward against the iron and was injured. The plaintiff filed a suit against the Secretary of
State for India in Council for the damage which was caused due to the negligence of the
servants employed by the Government of India. The Court tried to look to the liability of the
East India Company. A distinction was drawn between the sovereign and non-sovereign
functions of the East India Company. It was held that, if the act was done in the exercise of
sovereign functions, the East India Company would not have been liable, but if the function
was a non-sovereign one, i.e., which could have been performed by a private individual
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without any delegation of power by the Government, the Company would have been liable.
Maintenance of the dockyard was considered to be a non-sovereign function and, as such,
the Government was held liable.
According to Peacock, C.J., "The East India Company were a Company to whom
sovereign powers were delegated, and who traded on their own account and for their own
benefit and were engaged in transactions partly for the purpose of Government and partly
on their own account, which without any delegation of sovereign rights might be carried on
by private individuals. There is a great and clear distinction between acts done in exercise of
what are usually termed sovereign powers and acts done in the conduct of undertakings
which might be carried on by private individuals without having such powers delegated to
them. It was further observed:
But, where the act is done, or a contract is entered into, in the exercise of powers
usually called sovereign powers, by which we mean powers which cannot be lawfully
exercised except by a sovereign or private individual delegated by a sovereign to exercise
them, no action will lie.
It may be stated that there was distinction in liability, depending upon the sovereign
and non-sovereign functions of the East India Company. It was due to the dual character
which the East India Company was having. It performed commercial functions and exercised
sovereign powers as well. The East India Company got the administrative power as the
representative of the British Crown and as such, the position as prevailing in England was
tried to be applied in India. In England, the King could not be held liable for the wrongs ofhis servant. That was due to the conviction that "the King can do no wrong, nor can he
authorize the same."
The Supreme Court in the case of Kasturi Lal v. State of U.P. has again stated that if
the act of the Government servant was one which could be considered to be in delegation
of sovereign powers, the State would be exempt from liability, otherwise not. In the instant
case, Ralia Ram, one of the partners of a firm of jewellers, Kasturi Lal Ralia Ram Jain, at
Amritsar happened to go to Meerut, reaching there on the midnight of 20th September,
1947 by Frontier Mail. He had gone to Meerut in order to sell gold and silver, etc. in theMeerut market While he was passing through one of the markets with his belongings, he
was taken into custody by three police constables on the suspicion of possessing stolen
property and then he was taken to the police station. On search, it was found that he had
been carrying 103 tolas of gold and over 2 maunds of silver. He was kept in police lock-up
and his belongings were also kept in the custody of the police under the provisions of the
Criminal Procedure Code. Next day, he was released on bail and sometime thereafter the
silver was returned to him. The gold had been kept in the police Malkhana under the charge
of the then Head Constable Mohammad Amir. The Head Constable misappropriated the
gold and fled to Pakistan in October, 1947. The plaintiff brought an action against the State
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of U.P. claiming either the return of the gold, or in the alternative, compensation amounting
to over Rs. 11,000 in lieu thereof.
The State of U.P. was held to be not liable on the grounds that : (i) the police officials
were acting in discharge of statutory powers (this point has been discussed in greater details
below), and (ii) the power of the police official in keeping the property in the Police
Malkhana was a sovereign power.
(ii) Acts of Police Officials
In State of Orissa v. Padmalochan, the question which had arisen was whether the
excesses committed by police personnel while discharging their duties could come within
the purview of delegated sovereign function so as to exempt the State from liability. The
facts of the case are that, there was an apprehension of an attack on the office of the S.D.O.
and its properties by a mob which had resorted to violence there. The Orissa Military Policeunder the control of supervising officers and a Magistrate, cordoned the areas. Some police
personnel assaulted members of the mob without order from the Magistrate or any higher
police officer, as a result of which the plaintiff was injured.
It was held that the posting of police personnel for cordoning in front of the S.D.O.'s
court was in exercise of delegated sovereign function. The fact that the police personnel
committed excess in discharge of their function without authority would not take away the
illegal act from the purview of the delegated sovereign function. Thus, the injuries caused to
the plaintiff while police personnel were dispersing unlawful crowd were, in exercise ofsovereign function of the State. The State was held not liable.
Every act of the police official may not be in exercise of sovereign function. In State of
Punjab v. Lal Chand Sabharwal, some detenus arrested in connection with 'save Hindi'
agitation, who were lodged at a Chandi Mandir Police Station were taken out at midnight
for being carried in a bus to an unknown destination. Due to the negligence of the constable
driver, the bus met with an accident and the plaintiff suffered severe injuries. It was held
that the purpose of carrying the detenus being to disperse them, rather than producing
them before a magistrate, could not be considered to be a sovereign act and, as such, the
driver and the State were liable.
The following position emerges from the above decisions:
(1) The liability of the Government, i.e., the Union of India and the States is the same as
was that of the East India Company.
(2) The Government is not liable for the torts committed by its servants in exercise of
sovereign powers. The Government is liable for the torts which have been committed in
exercise of non-sovereign powers.
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(3) Sovereign powers means powers which can be lawfully exercised only by a sovereign
or by a person to whom such powers have been delegated.
(4) There are no well defined tests to know what are sovereign powers. Functions like
maintenance of defence forces, various departments of the Government for maintenance of
law and order and proper administration of the country, and the machinery for the
administration of justice can be included in sovereign functions. Functions relating to trade,
business and commerce and the welfare activities are amongst the non-sovereign functions.
Broadly speaking, such functions, in which private individual can be engaged in, are not
sovereign functions.
(iii) Negligence of Military Servants
Although the maintenance of the army is a sovereign function but this does not
necessarily mean that the State will be immune from liability for any tortious act committedby the army personnel. Here also, a distinction has to be drawn between acts which could
be done by the Government in the exercise of sovereign powers and acts which could have
been equally done by a private individual. There is no hard and fast rule to distinguish
sovereign and non-sovereign functions.
In Baxi Amrik Singh v. Union of India, on 14th May, 1967, there was an accident
between a military truck and a car on the Mall Road in Ambala Cantt. Due to the negligent
and rash driving by the truck driver, Sepoy Man Singh, who was also an army employee,
Amrik Singh, an occupant of the car, received serious injuries. Subsequently, he brought anaction against the Union of India to recover compensation amounting to Rs. 50,000/-. The
Union of India, apart from pleading that there was no fault on the part of the Military driver,
averred that the driver was acting in exercise of the sovereign power of the Union
Government at the time of accident in so far as he was detained for checking Army
personnel on duty throughout that day, and therefore there was no liability of the Union of
India to pay compensation. The Full Bench of the Punjab and Haryana High Court, after
discussing in detail the various authorities on the point, came to the conclusion that the
checking of the Army personnel on duty was a function intimately connected with the Army
discipline and it could only be performed by a member of the Armed Force and that too bysuch a member of that Force who is detained on such duty and is empowered to discharge
that function. It was, therefore, held that since the military driver was acting in discharge of
a sovereign function of the State, the Union of India was not liable for injuries sustained by
Amrik Singh as a result of rash and negligent driving of the military driver.
Tort committed while performing duty in discharge of obligations imposed by law
has been considered to be a defence in India.
In order to exempt the State from liability, it is further necessary that the statutory
functions which are exercised by the Government servant were exercised by way of
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delegation of the sovereign power of the State. In case, the tortious act committed by the
servant was in discharge of non-sovereign functions, the State would be liable for the same.
The position was thus, stated by the Supreme Court in Kasturi Lal Ralia Ram Jain v. State of
U.P:
If the tortious act is committed by a public servant and it gives rise to a claim for
damages, the question to ask is : Was the tortious act committed by the public servant in
discharge of statutory functions which are preferable to, and ultimately based on, the
delegation of the sovereign powers of the State of such public servant? If the answer is in
the affirmative, the action for damages for loss caused by such tortious act will not lie. On
the other hand, if the tortious act has been committed by a public servant in discharge of
duties assigned to him, not by virtue of the delegation of any sovereign power, an action for
damages would lie. The act of the public servant committed by him during the course of his
employment is, in this category of cases, an act of a servant who might have been employedby a private individual for the same purpose.
In Kasturi Lai Ralia Ram Jain v. State of U.P., the Supreme Court also refused to hold
the State liable for the act done by its servant in the exercise of statutory duties. In this case,
a partner of the firm of jewellers in Amritsar, Kasturilal Ralia Ram Jain, happened to go to
Meerut (in U.P) reaching there by a train in the midnight. He was carrying a lot of gold and
silver with him. The police constables, on the round in the market through which he was
passing, suspected that he was in the possession of stolen property. He was taken to the
police station. He, with his belongings, was kept in the police custody under the provisions
of the Cr. P.C. Next day, he was released on bail and sometime thereafter the silver was
returned to him. The gold was kept in the police Malkhana, and the same was then
misappropriated by the Head Constable, Mohammad Amir, who thereafter fled to Pakistan.
The plaintiff brought an action against the State of U.P. claiming either the return of the 103
tolas of gold, or compensation of Rs. 11,000/- in lieu thereof.
In Kasturi Lal's case, it was found that the police officers failed to observe the
provisions of the U.P. Police Regulations in taking care of the gold seized. The Supreme
Court held that since the negligence of the police officers was in the exercise of statutory
powers which can also be characterised as sovereign powers, the State was not liable for
the same. According to Gajendragadkar, C.J. : "In the present case, the act of negligence was
committed by police officers while dealing with the property of Ralia Ram which they had
seized in exercise of their statutory powers. Now, the power to arrest a person, to search
him, and to seize property found with him, are powers conferred on the specified officers by
statute and in the last analysis, they are powers which can be properly characterised as
sovereign powers, and so, there is no difficulty in holding that the act which gave rise to the
present claim for damages has been committed by the employees of the respondent during
the course of its employment; but the employment in question being of the category which
can claim the special characteristic of sovereign power, the claim cannot be sustained, and
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so we inevitably hark back to what Chief Justice Peacock decided in 1861 and hold that the
present claim is not sustainable."
(iv) Sovereign Immunity Is Subject To Fundamental Rights
In Peoples Union for Democratic Rights v. State of Bihar, about 600 to 700 poor
peasants and landless persons had collected for a peaceful meeting. Without any previous
warning by the police or provocation on the part of those collected, the Superintendent of
Police surrounded the gathering with the help of police force and opened fire, as a result of
which at least 21 persons, including children died and many more were injured. The Peoples
Union of Democratic Rights (PUDR) filed an application before the Supreme Court under
Article 32 of the Constitution, claiming compensation for the victims of the firing. It was held
by the Supreme Court that the State should pay compensation of Rs. 20,000 for every case
of death and Rs. 5,000 for every injured person. This amount was ordered to be paid within
two months without prejudice to any just claim for compensation that may be advanced by
the sufferers afterwards.
In Smt. Kumari v. State of Tamil Nadu, six year old son of the appellant died as a
result of falling in a ten feet deep sewerage tank in the city of Madras. The Supreme Court
issued a direction to the State of Tamil Nadu to pay compensation of Rs. 50,000/- to the
appellant with interest @ 12% p.a. from Jan. 1, 1990 till the date of payment. The Supreme
Court further held that it was open to the State of Tamil Nadu to recover the said amount or
any part thereof from the local authority or any other person who might be responsible of
keeping the sewerage tank open.
(iii) Liability of StateConstitutional Tort
In Ramjan v. State of Rajasthan, the Rajasthan High Court has held the State liable to
provide free and full medical aid as also compensation to the victim for injury caused by
private person, as per new horizons of constitutional tort. It has been held that the claim in
public law for compensation for unconstitutional deprivation of a fundamental right is a
claim based on strict liability and is in addition to private law remedy.
In the instant case, four women were injured by throwing acid on them. It was held
to be deprivation of the right to live with human dignity of the victims. Scars on their face
and ,other parts of their bodies, which were caused by the acid thrown on them had
resulted in their permanent disfiguration and continuous mental torture for the whole of
the remaining life or loss of status, particularly the women.
It was held to be a duty of the State to protect fundamental right, maintain the law
and order situation, prevent the crime, the prosecution of the accused in case the crime is
committed. Since it amounted to violation of the right secured by Article 21 of the
Constitution of India, the Rajasthan High Court held that the writ was also the properremedy. The State, the Court said, could not be allowed to take the defence of filing of civil
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suit for compensation against the private person who had caused the injury. It is interesting
to note that in many of the cases, subsequent to Kasturi Lal case, the Supreme Court has
granted compensation as an ancillary relief while exercising its writ jurisdiction under Article
32 of the Constitution. The Supreme Court has not only itself granted compensation as an
interim measure but has also expressly stated that the same is granted without prejudice tothe right of the petitioners to claim just compensation from the State by a subsequent
regular suit. This approach by the Supreme Court is a welcome measure which was long
overdue to do away with the outmoded law which was being applied for historical reasons,
and perhaps, owing to the wrong interpretation of the law on the subject.
Liability of Administration under Contract
The subject of government contracts is becoming more and more important day by
day. The law in this respect is in many ways distinct from the law pertaining to private
contracts. Although, contract is basically a matter of private law, but in the area of
government contracts, there arises need to protect public interest and also to protect
individuals against unfair exercise of administrative power.
Besides, government contracts involve problems of public law, such as, estoppel,
natural justice, fundamental rights, writ jurisdiction. The Courts in India seem to regard
contracts between the Government and private individuals as not merely a matter of private
law, but, to some extent of public law as well. It has been emphasized that in these matters,
the Government ought to be held subject to some public law discipline. It has been said that
if the Courts lay stress on contractual aspects ignoring public law aspects of government
contracts, it might be tantamount to letting public authorities to use their powers as they
like without the other party having an opportunity to have any redress. The Supreme Court
in Divisional Forest Officer v. Ram Sanehi Singh, emphasized :
We are unable to hold that merely because the source of right which the respondent
claims was initially in a contract, for obtaining relief against any arbitrary and unlawful
action on the part of a public authority, he must resort to a suit and not to a petition by wayof writ...There can be no doubt that the petition was maintainable, even if the right to relief
arose out of an alleged breach of contract, where the action challenged was of a public
authority invested with statutory power.
1. Formation of Contract-Power ThereforeArticle 298 of the Constitution of India 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 of property and the making of contracts for any purpose."
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Proviso to Article 298 conditions the executive power of the Union or of the State, as
the case may be, to the laws of the Legislature within the legislative competence, the
subject matter in respect to which the trade or business carried on falls. Article 298,
however, does not restrict the power of the respective Government, Union or a State, by
the scheme of distribution of legislative power between the Centre and the States. It meansthat the Central or the State Government may enter into a contract whether or not the
subject-matter of the contract is within its legislative competence. Secondly, the
Government can enter into a contract, in exercise of its executive power. So no statutory
authority is necessary for the purpose.
2. Valid ContractConditions ThereforeClause (1) of Article 299 of the Constitution of India provides : "All contracts made 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 authorise".
Article 299 (1) lays down that a contract to bind the Government must satisfy the
following requirements
(a) The contract must be expressed to be made by the President or by the Governor of
the State, as the case may be ;
(b) The contract must be executed on behalf of the President or the Governor, as the
case may be ;
(c) The contract must be executed by such person and in such manner as the President
or the Governor may direct or authorise.
(a) Object
It has been held that "in order to bind a Government there should be a specific
procedure enabling the agents of the Government to make contracts. The public funds
cannot be placed in jeopardy by contracts made by unspecified public servants without
express sanction of the law". The provisions of Article 299 are therefore, based on the
ground of protection of the general public.
Article 299 (1) does not prescribe any particular mode in which authority must be
conferred on a person to execute a contract on behalf of the President or the Governor.
Normally, such conferment is done by Notification in the Official Gazette. It can also be
conferred ad hoc on any person. However, grant of government contract, without
publishing advertisement in newspaper having wide circulation, is held to be arbitrary.
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(b) Effect of Non-Compliance
The provisions of Article 299 (1) are mandatory in character and their contravention
nullifies the contracts and make them void. It follows that a contravention of this
constitutional requirement cannot be waived and the waiver of either party cannot confer
any validity upon the invalid agreement. There is, therefore, no question of estoppel or
ratification in such a case. Also, in such cases, the doctrine of indoor management cannot be
applied.
(c) No Personal Liability [Article 299(2)]
Clause (2) of Article 299 immunizes the President or the Governor, or the person
executing any contract on his behalf, from any personal liability in respect of any contract
executed for the purposes of the Constitution or for the purposes of any enactment relating
to the Government of India.
However, in case of arbitrary exercise of power, the principle of public accountability
applies and in case of loss to the State, the concerned Minister would be liable to
compensate.
(d) Ratification of Invalid Contract
Prior to 1968, the judicial attitude was that though, the Government could not
ordinarily, be sued on a contract not conforming with the requirements of Article 299(1), yet
the Government could accept the responsibility for it by ratifying the contract. It was heldthat the contracts which did not conform with Article 299(1) would not be void simply
because the Government could not be sued on them by reason of Article 299(1). The Court
in Chaturbhuj v. Vithaldas Moreshwar, specifically ruled that "there would be nothing to
prevent ratification of the contract by the Government especially if that was for the benefit
of the Government."
The purpose of Article 299(1), the Court explained was to dispense with proof of the
due "making and execution" of the contract when the form prescribed was followed. The
contract not non-forming with Article 299(1) was not "void" in "the technical sense" that it
could not be ratified. It was thus held that when the contract was negotiated by an officer in
excess of his authority or it was entered into by an unauthorised person, it could be ratified
by the Government if it was for its benefit.
3. Statutory ContractsA distinction is to be made between a Contract entered into in the exercise of
executive power and that which is made in the exercise of statutory powers. It has been said
that the act of entering into a contract is an executive act to which the provisions of Article
299(1) apply. But, a contract that has been entered into in the exercise of statutory powers
would not attract the operation of Article 299(1). Statutory duties and liabilities, it has been
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said, might be enforced in accordance with statutory provisions and therefore, equitable
obligations might also arise and be enforced by decree of courts quite apart from
requirements of Article 299.
For instance, in State of U.P. v. Kishori Lal Minocha, the Court held that absence of
agreement executed in the manner required by Article 299(1) would not be a bar to
proceedings for recovery of exercise dues in view of Section 39 of the U.P. Excise Act, 1910.
In Indian Aluminium Co. v. K.S.E. Board, in the exercise of power under Section 49(3)
of the Electricity (Supply) Act, 1948, the Board entered into an agreement with the
petitioner, consumer, stipulating for a special concessional tariff for supply of electricity for
25 years with effect from 1957. In the exercise of its power under Section 49(1) of the Act,
1948, the Board fixed new rates and right to apply these to the petitioner as well in breach
of the agreement with them. The Apex Court held the agreement between the Board and
the petitioner as binding since it was entered into by the Board in the exercise of power
conferred on the Board under the Statute. The Court explained that if the statutory power
was to have any meaning and content, the stipulation made in exercise thereof must be
valid and binding and it would exclude the exercise of other statutory powers in respect of
the same subject-matter. The Court reasoned that if the Board were allowed to escape its
contractual obligations, then it would have meant that no one could depend on a contract
with a statutory body or with any other government body for that matter and plan on the
basis.
4. Article 299 and Doctrine of Unjust EnrichmentIt is settled that a contracts which do not comply with the requirements of Article 299
is absolutely void, not even capable of ratification. Nevertheless, it may give rise to certain
equities which the Courts may enforce against the Government. One such equity is based on
the doctrine of unjust enrichment. It is based on the principle that no person can get benefit
when he has not suffered any loss. Explaining the principle, Lord Wright, in Fibrosa v.
Fairbarin, stated :
Any civilized system of law is bound to provide remedies for cases of what has been
called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the
money of, or some benefit derived from another which it is against conscience that he
should keep. "Such remedies in English law", Lord Wright said :
are genetically different from remedies in contract or in tort and are now recognised to fall
within a third category of the Common Law which has been called quasi-contract or
restitution.
The Supreme Court in Mulamchand v. State of M.P., recognised :
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...in all civilised systems of law proper remedy must be provided to prevent a person from
getting unjust enrichment or unjust benefit and restitution must be allowed in all such cases
so as to place the parties as nearly as possible in the same position, as if the contract had
not come into existence.
The principle of unjust enrichment is incorporated in Section 70 of the Indian Contract
Act, 1872. This Section provides :
Where a person lawfully does anything for another or delivers anything to him, .not
intending to do so gratuitously and 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. Section 70, however, would be applicable where what has been done is for the
benefit of the Government, its use and enjoyment and is otherwise legitimate and proper.
Therefore, where a person has done something for the Government under a void contract
but the Government has not obtained any benefit under it, a more complicated question of
liability arises.
The question as to the relationship between Article 299(1) and Section 70, was
explained by the Supreme Court in State of West Bengal v. B.K. Mondal. Dilating upon the
nature of Section 70 and the basis of the liability thereunder, the Court said that three
conditions were to be fulfilled before this Section could be invoked. These are :
(1) A person should lawfully do something for another person or deliver something to
him;
(2) In doing so, he must not intend to act gratuitously; and
(3) The other person for whom something is done or to whom something is delivered,
must enjoy the benefit thereof.
If the above conditions are satisfied, Section 70 imposes upon the latter person the
liability to make compensation to the former in respect of, or to restore, the thing done or
delivered. In the instant case, the respondent executed some construction work on the
request of a Sub-Divisional Officer, who had accepted his tender. The building so
constructed was accepted by the Government. But, it denied its liability to pay on the
ground that the requests in pursuance of which the building was constructed was made
were invalid and unauthorised being not complying with the requisites of Article 299(1).
Stating that all the ingredients of Section 70 were satisfied, the Supreme Court held that
Government liable to pay to the plaintiff.
Explaining the content of Section 70 the Court said that where a claim for
compensation was made by one against another person, it was not on the basis of any
subsisting contract between the parties, but it was on the basis of the fact that something
was done by the party for another and the said work so done had been voluntarily accepted
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by the other party. The word "lawfully" in Section 70, the Court said, indicate that there was
undoubtedly subsisting between the parties some lawful relationship.
"It is only when the latter party accepts an enjoys what is done by the former party that a
lawful relationship arises between the parties and it is the existence of the said lawful
relationship, that would give rise to the claim for compensation, the Court said.
Explaining the nexus between Section 70 and Article 299(1) the Court said that the
former, in no way, detracted from the binding character of Article 299(1) nor did it amount
to circumvention of Article 299(1) in any way. Therefore, the cause of action for the former
party's claim under Section 70 was not any breach of any contract but it was based upon the
acceptance and enjoyment of the goods delivered or the work done by the former. Thus,
"Section 70 does not nullify Article 299(1)", the Court held.
The propositions enunciated by the Apex Court in Mandal case have been reiteratedand applied by the Courts in a number of subsequent cases. The liability under Section 70 is
said to arise on equitable grounds even though express agreement may not be proved. "The
right here is not peculiar to equity or contract or tort, but falls naturally within the
important category of cases, where the Court orders restitution if the justice of the case so
requires, the Court explained.
A complicated question of liability, however, arises in situations where the party to
the contract has done something for the Government, under a void contract but the
Government has not obtained any benefit under it. In such a case Section 70 has been held
not applicable.
5. Grant of Government LargessTodays functional State is to undertake several commercial activities. It discharges its
wide ranging functions even through its instrumentalities. Being a big source of wealth, the
Government has power to grant licences, quotas, permits. Though, free to enter into
contracts like any private individual the Government does not stand in the same position as
a private individual in the matter of granting largess.
The Government, it is held, is still a Government and therefore, it cannot act
arbitrarily while entering into a contract or in administering' largess. The Supreme Court in
Erusian Equipment & Chemicals Ltd. v. State of West Bengal, stated : The Government is a
Government of laws and not of men.... The activities of the Government have a public
element and, therefore,, there should be fairness and equality. The State need not enter
into any contract with any one but if it does so, it must do so fairly without discrimination
and without unfair procedure.
In the instant case, the question related to the blacklisting of a person without giving
him an opportunity to be heard. Stating that the blacklisting "not only affects the reputation
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of the affected person, but it also denies him equality in the matter of entering into
contract, with the Government, the Court held that the Government not like a private
individual, could pick and choose the person with whom it would deal.
Stating that the power of judicial review on the question of awarding licences and
contracts should rest only on grounds of bad faith, irrational or irrelevant consideration,
non-compliance with the prescribed procedure or violation of any constitutional or
statutory provision, the Apex Court in L.I.C. v. Consumer Education and Research Centre,
elaborating their approach further held :
That, in the sphere of contractual relations the State, its instrumentalities, public
authorities whose acts bear insignia of public element, action to public duty or obligation
are enjoined in a manner that is fair, just and equitable, after taking into consideration all
the relevant options and in a manner that is reasonable, relevant and germane to effectuate
the purpose of public god and in general public interest.
That, the State must not take any irrelevant or irrational factors into consideration or
appear arbitrary in its decisions. So said, the Court held that the power of the LIC to enter
into contract and prescribe terms and condition for life insurance, did not include power to
confine, its policies for salaried class from Government, semi-government or reputed
commercial firms. Many-a-time, the provision of law vests power in the statutory
authorities, to be exercised as they "think fit". Stating it as misconceived, the Court in Delhi
Science Forum v. Union of India, said that such provisions, while vesting power in authorities
enjoined a fiduciary duty to act with restraint to avoid "implaced philanthropy or ideology".As such, the State is expected to put such conditions while granting largess which would
safeguard public interest and interest of the Nation. Such condition, the Court said, should
commensurate with the obligations that flow while parting with the privilege which had
been exclusively vested in the Central Government by the Act in question.
6. Contractual Liability and Writ JurisdictionFor long, the judicial trend had been that a writ petition was not an appropriate
remedy against breach of contractual obligations.
In Satish Chandra v. Union of India, the service of the petitioner, a civil servant, were
terminated in accordance with the terms of the service contract. The petitioner challenged
his termination by way of writ petition filed under Article 32 alleging violation of his
fundamental rights secured under Articles 14 and 16(1). Dismissing the petition the Court
observed that he had not been discriminated against nor denied any protection of any laws
which others similarly situated could claim and therefore, the remedy of writ was
misconceived.
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