1960 Supreme(Raj) 28

Rajasthan High Court
Ranawat & Jagat Narayan, JJ.
State of Rajasthan - Appellant
Versus
Rikhabchand Dhariwal - Respondents
Civil Reference Case No. 24 of 1950
Decided On : February 08, 1960

Headnote:(a) Tort—International Law—Vicarious liability of successor State for tort committed by servant of former State.(b) Preventive Detention—Former State of Rajasthan Public Safety Ordinance (No. IX of 1948) secs. 44 and 3(1)(b)—Good faith and honesty.(c) Preventive Detention—Former State of Rajasthan Public Safety Ordinance (No. IX of 1948) Sec. 43 — Delegation power does not make Commissioner agent.(d) Tort—Vicarious liability—Delegation of legal power by Government.(e) Limitation Act, Art. 19 —Suit for compensation for wrongful arrest.(f) Tort—Damages—Loss of reputation for wrongful arrest under Preventive Detention Act.

       The plaintiff R. was a practising Advocate at Kotah. On the 17th of July 1948, under the orders of the then Chief Minister of former Rajasthan, the plaintiff was arrested and detained in the Bundi Central Jail under sec. 3(1)(b) of the Rajasthan Public Safety Ordinance (No. IX of 1948). A habeas corpus application was filed by his brother for his release and the Bench of the former Rajasthan High Court, ordered the release of the plaintiff on the 14th of August 1948. He was consequently released, but before he could get out of the outer gate of the Jail, he was again arrested under a warrant of detention issued by the Commissioner, Kotah Division, under the same provision of the Ordinance. Again, a habeas Corpus application was presented for his release and by the order dated the 26th of August 1948, he was again released by the same Bench of the High Court. The plaintiff alleged that both of his detentions were illegal, wrongful and mala fide and claimed a sum of Rs. 100/- as damages for his first detention and Rs. 5,000/- for the second, making a total of Rs. 5,100/-. The present State of Rajasthan, which is the successor of the former United State of Rajasthan, contested the suit. (Paras 3, 4 and 5)

       Held that the position of the United State of Rajasthan to sue and be sued stood on a different footing from that of the Dominion of India or its Provinces, for the reason that sec. 176 of the Government of India Act, 1935 and the corresponding sections of the earlier Government of India Acts did not apply to them. The United State of Rajasthan could sue and be sued under Art. 300 of the Constitution in the like cases as it might have sued or been sued if the Constitution had not come into force.

       It is an established principle of jurisprudence in all civilized nations that a sovereign State cannot be sued in its own courts or in any other without its consent and permission; but it may, if it thinks fit, waive this privilege and permit itself to be made a defendant in a suit by individuals or by another State and as this permission is altogether voluntary on the part of a sovereign, it follows that it may prescribe the terms and conditions on which it may consent to be sued and the manner in which a suit may be conducted and may withdraw its consent whenever it may think that it is in the public interest to do so. This con-sent may be found in the Constitution of the State itself or in the laws enacted by it or even in the executive orders issued by it.

       Sec. 17 of Ordinance No. 1 of 1948, contains a specific provision about the consent of the United State of Rajasthan for being sued in its own courts. In this provision, unlike Art. 300, no limitation whatsoever has been provided as regards the nature of the suits which might be brought against the State. (Para 12)

       The evidence shows that there was no material before the Commissioner to afford even a probable ground for believing that the plaintiff was likely to commit any prejudicial act referred to in sec. 3(1). The Commissioner reproduced the three grounds given in the section itself in his order which also goes to show that he did not apply his mind to the particular circumstances of the case in order to come to the conclusion as to which one of the grounds existed in the instant case. The Commissioner did not care to examine the question whether the plaintiff was likely to do such a prejudicial act. He cannot under these circumstances be said to have acted honestly in a judicial sense. He did not act dishonestly, but that is not enough. The order of the Commissioner, under the circumstances, cannot be taken to have been passed in good faith within the meaning of S.44 of the Ordinance. The protection given by sec. 44 would, therefore, be not available to the State for this reason. (Para 18)

       The delegation of the power to the an ordinary agent of the State. He is in Commissioner under Sec. 43 does not make such cases only discharging a duty imposed him an agent of the Government in the upon him by law and not by the will of the ordinary sense of the term for the reason Government employing him and therefore, that the Commissioner, after he was clothed with the powers to act under sec. 3, had to exercise his own discretion in the matter. The power delegated was a statutory one and in exercising that power, the Commissioner did not act as an agent of the Government. He acts for himself under the law. The maxim "Respondent Superior" has no application, nor does the ordinary law relating to principal and agent, apply to such cases. Where a Government officer purports to act under a statutory power conferred upon him, it cannot be said that he acts as an ordinary agent of the State. He is in such cases only discharging a duty imposed upon him by law and not by the will of the Government employing him and, therefore, whatever wrong he does is his own and not that of his employer ; the officer performing such a statutory duty is not obeying any command of the State, but that of the law. The Commissioner not being an agent of the Government, his act in ordering the detention of the plaintiff cannot be said to have been performed on behalf of the Government. Government could not, therefore, ratify it even though it may have approved of the action of the Commissioner (Paras 21 and 22)