2 s.c.R.

SUPREME COURT REPORTS 989

THE STATE OF RAJASTHAN l~6S

v. Feiruar.v 2.

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 respon-
dent 2 was on February 11, 1952, knocked down by a Govern-
ment 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 dis-
missed it as against the State, holding that a• the car was be-
ing 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 Constitu-
tion, 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 Com-
pany 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.
 990 SUPBEME OOURT REPORTS [1962] SUPP. '
IHI
Ptnin.na1ar and Oriental Buam N avi4alion Co. "· Tht.
T/t, St.t,.f l'lecrda'rg of 8'attfor India, (1868-69) 5 Born. H. C.R. 1,
Rojutltan approved.
••
Msl. Vidriyawah 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 contempla-
terl by the Article. Jn the ahsence therefore, of any law pro-
vidino 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 Pro-
r.•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 indust-
rial and oth-r activitiC' •ncrai:?in11: larire numben of employeeo
thrrc rould ~ no iu~tifi,_ation, in principle or public iritett~t,
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, re-
rferred 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. ~
..
"
 Z S.C.R. SUPREME COURT REPORTS 991

1962. February 2. The Judgment of thE"

Court was delivered by Th, State of
SINHA, C. J.-This appeal, on a certificate ...
Rojatlaon

granted by the High Court of Rajasthan under Art. Jlst. Vidhjawcti.

133(l)(c) of the Constitution, raises a question of Sinh• C. J,
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 defen-
dant. 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 walk-
ing on the footpath by the side of the public road
in Udaipur city, mmsing him multiple injuries, includ-
ing 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
 1!92 SUPREME OOUR'.l' llEl'OHTS (1002] SUPP.
1111 defendants. The first defendant remained llX-parte.
ntSt•ef The suit was contested only by the second defendant
ilV-IMa on a number of issues. But in view of the fact that
•• both the Courts below have agreed in finding that •
1111. V;A,,_.i;
the first dE>fendant was rash and negligent in driv-
sw..c J. ing 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 r
dismissed it without oosts against the second defen-
dant. 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 Appel-
lant 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, '
 2 S.C.R. SUPREME COURT REPORTS 993
which is the more serious of the two raised before Jffl
us. Can it be said that when the jeep oar was being Ti., Stat.•/
driven back from the repair shop to the Collector's Rojaslhatt
place, when the accident took place, it was doing ••
Mst. Yidhvawlll
anything in connection with the . exercise of sove-
reign powers of the State? It has to be remem- Sinlui C. J.
bered 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 Collec-
tor, in the discharge of his official duties, that circum-
stance 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 reach-
ing 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 clari-
fied 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."
 994 SUPREME COURT REPORTS [l!l82) SUPP.

"" •f
n,811111
In ihe result, the High Court granted & decree
to the plainWfs as against the second defendant also
bjutW for the SUQl of Rs. 15,000/-. In our opinion, the
••
-Jt,iYi~i High Court has t&ken the correct view of the legal
poaition, in view of the ciroumstan(){'S in which the
s;..w c. "· 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 Lii~slature of suoh State
enacted by virtue of powers conferred by this
Constitution, sue or be sued in relation to
1heir 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 Consitu-
tion 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 rel~tion 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,eisla-
ture of tbe 13tate concerned, in due exorcise of its
legislative £unctions, in pursuance of po,:-ers c<•nfer-
red bv the Constitution. The learned Adv0<·ate-
Ge.neral for the State of Rajaethan argued that the
 I 2 S.C.R. SUPREME COURT REP!ORTS 995

second part of the artiole ba.s referenoe to the ex, J961

tent of the liability of .a State to be sued, and that, -n. 81"'4"'
therefore, we have to determine the question of the Rqj..UU..
liability of the State in this case in terms ·of the ••
Mtt. Yidh,....,,i
Article. On the other hand, it has been argued on Si•ha C. J.
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 ques-
tion iu whose name suits and prooeedings may be com-
menced, 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
'
 .
996 SUPREME COURT REPQRTI:j (1962) SUPP. t

IHI Constitution. That legal position is indicated in

T/wdtDl.,,f the Government of India Act, 1935 (25 & 26 Geo.
~ V c. 42), s. 176(1) which is in these words:
v.
M1t.I'"~
"The Federation may sue or be sued by the
s;,Ma c. J. name of the Federation of India and a Provi-
ncial 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 Legisla-
ture 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 cor-
porate.
(~) 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
 2 S.C.R. SUPREME COURT REPORTS 997
1961
place in s. 32. Sub-section (2) of s. 32 has specific
reference to "remedies", and has provided that the J'h, SIMI of
remedies against the Secretary of State in Council Rajasthan
••
shall be the same as against the East India Com- Jlsl. V idhyowoli
pany, if the Government of India Act of 1858, and
Sinil• C. J.
the Government of India Act, 1915, had not been
1 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 proceed-
ings, 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 judg-
ments 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.
 998 SUPRE¥E COURT REPORTS (1962] SUPP.
1962 The question naturally a.rises : What was
TlwSl,,..of the extent of liability of the East India Company
.~'"""
v.
for the tortious aoti! of its sen ants committed in
Mst. Vid•JawGti course of their employment as such 1 The exa.ct
liiMii c. J. 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 tres-
pass, 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.d-
ing 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 pro-
oeeding 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 Kidder-
pore, 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.
 ·~.
2 S.C.R. SUPREME COURT REPORTS 999
carriage was injured. The plaintiff company claim- 1961
ed dama.ges against the Secretary of State for Tiu Sta" of
India for the damage thus caused. The learned Bajaathan
v.
Small Cause Court Judge came to the finding that Msl. Vidhyaw•ti
the defendant's servants were wrongdoers in carry-
ing the' iron funnel in the centre of the road, and Sinha C. J.
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 occur-
rence in which the injury was ca.used to the plainti-
ffs' 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, assu-
ming them to have been guilty of such negligence
as would have rendered an ordinary employer
liable. In the course of their judgment, their Lord-
ships 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
 1000 SUPREME OOURT REPORTS (1962) SUPP.
'
the main controversy, which it described as "one
n.si.1..1
of very comiderable importance and of some diffi-
~ culty". Then the Court considered the provisions
••
1111. Yi<IA,.....ii
of s. 65 of the Act of 1858, and pointed out that
as the Queen could not be sued in her own courts,
/lirtMC.J. as the East India Company oould have been, it was
ueceaeary to provide by that section the mode for r
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 busi-
ness 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 govern-
ment 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 ree-
pect 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, quot-
ed &hove, are materially s•milar to the latter part
2 s.C.R. SUPREME COURT REPORTS 1001

of s. 65 of the Act of 1858. It was in accordance J9fll

with the provisions of s. 10, followed up by s.65 Tiu Bi.te of
aforesaid, that the Court la;d it down that the
Secretary of State for India Wll.B subject to the ..
a,;.,111M
Jlsl. Vidh,111W•I/
same liabilites as those which previously attached
to the East India Company. Sin~a C J.
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 Com-
pany, was specifically provided for by s. 10,
aforesaid. The East India Company itself could
not have claimed any such immunity as was avail-
able 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,
 ..

1002 SUPREME COURT REPORTS (1962] SUPP. t

19'2 sovereignty of the Crown. The Court also pointed
n. s.... •f out that the liability of the Secretary of State was
Rof•sl\.,. in no sense 11 personal liability, but had to be
v.
Jl1l. Vidlry-Jua'i satisfied out of the revenues of India.
5inha C. J. 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 rail-
ways, poets and telegraphs and road transport busi-
ne88. 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
I
the purpoee of enforcing payment, out of the
! S.8.R. SUPREME COURT REPORTS I 003
l'evenues of India, of the debts and liabilities 1968
which had been contracted or incurred by the 1 h< St.te of
East India Company, or debts or liabilities of Bajasu.an
v.
a similar nature, which might afterwards be M 81. Vidh)•<Jwali
contracted or incurred by the Government of Sinha C. J.
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, there-
fore, 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 delega-
tion of sovereign rights, might be carried on
by private indi 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 pro-
perty as prize property or while engaged in
 1004 SUPREME COURT REPORTS [1962] SUPF. i
IHI military or ~al action. In such cases no action

.
TMSW.o.f
B.;.slAa
J/14. Yid.tr.-;
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·
s-.o .J.
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 oiroums-
tanoee 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

•
 \ 2 S.C.R. SUPREME COURT REPORTS 1005
196!
(53-55) that the integration of the Rajasthan States
into one single state was effected in several stages. Th• State of
The Rajasthan Union was originally formed by RajastJur11
the smaller States, whioh later united and formed •••
M st. Vidll.JW<lli
the United State of Rajasthan, inaugurated on Sinha C. J.
March 25, 1948. Subsequently, bigger States
joined and the second Rajasthan Union was
inaugurated on April 18, 1948. By a further pro-
cess 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 be-
yond 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 Constitu-
tion. 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 :

•
 1006 St:PREME COURT REPORTS (1002) SUPP. t
lHI
"Whether the State ofRajasthan is not liable
for the act of Defendant No. l ?"
I,,..
Tit• Stol< of
Rojas
••
Jlsl. Y~ati The State of Rajasthan haa not shown that the
Rajasthan Union, it11 predeoessor, wu not liable
SW.. C. J.
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 I
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, 1947, 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~ p~rson 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,
 !

2 S.O.R. SUPREME COURT REPORTS 1007

"196'
be held that the State ofRajasthan has failed to dis-
charge the burden of establishing the case rai~ed TM •tote of
Bajasilum
in Issue No. 9, set out above.
Viewing the case from the point of view of
••
Ms,, YidhJawati
first principles, there should be no difficulty in Sin!za C. J.
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, of·authorising 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 indus-
trial 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.
 1008 SUPREME OOURT REPORTS [1962] SUPP. l

years at lea.at, if we uphold the vioarioua lia.billty

Tiii Stall of of the St&t.e. Art. 300 of the Constitution itself
BttjaJIAa has saved the r.ight of Parliament or the Legislature
v ••
Jlsl. VidAJ...,.,; of a State tq enact such law as it may think fit
and proper ip this behalf. But so long as the Legis.
SW.. C. J. lature has not expressed its intention to the con-
trary, it mu&t be held that th~ law i1 what it has
been ever ilinoo the days of the East India Com-
pany.
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.
'

'