( 1 ) THIS is defendant's appeal against judgment and decree dated 24-12-1968 passed by the Third Additional District Judge, Morena, whereby the judgment and decree dated 20-10-1965, passed by the trial Court have been affirmed.

( 2 ) FACTS material for decision of this appeal are as under:-The plaintiff-respondent No. 1 Chironji-lal instituted the suit giving rise to this appeal for recovery of Rs. 600/- by way of damages caused by Police to loud-speaker, amplifier, mike and other accessories belonging to him, and which were given on hire to sunderlal, defend ant-respondent No. 2. Students' procession was being taken out on 27-12-1959 near Motor-stand, Morena. There was a lathi-charge by the Police. The aforesaid loud-speaker set was fitted in a rickshaw. Although at the time of the lathi-charge, it was in Jiwaji ganj, Sikharwari Block, Morena, away from the place of lathi-charge yet the Police Constables without any reasonable cause wilfully in order to cause damage to the plaintiff damaged the aforesaid set. Accordingly, the plaintiff is entitled to recover Rs. 600/- as damages for the loss so caused by the employees of the defendant State.

( 3 ) THE defendant-appellant State resisted the claim of the plaintiff and contended that the State cannot be made liable for the damage even if caused by the aforesaid acts complained of by the plaintiff.

( 4 ) THE trial Court decreed the suit for Rs. 377/- and dismissed the rest of the claim of the plaintiff. Aggrieved by this judgment and decree, the defendant preferred an appeal which has been dismissed vide the impugned judgment and decree. Hence, this second appeal.

( 5 ) IN this appeal, Shri B. P. Singhal, learned Additional Government Advocate for the appellant State contended that Police Act, 1861, by Section 30 regarding regulation of processions and by Section 144 of the Code of Criminal Procedure, 1898, regarding maintenance of law and order including right to quell riot, the state Government is immune from the liability complained of. Shri Motilal Gupta, learned counsel for the plaintiff-respondent argued in support of the impugned judgment and decree and submitted that the present case is a case of exceeding authority conferred by the law. Accordingly, the state is liable in the matter. Shri Gupta, further contended that the State is liable for unlawful or legally unwarranted acts done by their employees during the course of employment and do not enjoy the immunity envisaged by the ratio of Kasturilal v. State of U. P. (AIR 1965 SC 1039 ).

( 6 ) HAVING heard the learned counsel for the parties, I have come to the conclusion that the appeal deserves to be allowed.

( 7 ) IN this case, the findings given by both the Courts below concurrently are that lathi-charge was made by the Police on the procession when it became unruly. At that time, the loud-speaker set was fitted on a rickshaw and was employed for leading the procession. When there was lathi-charge, the occupant of the rickshaw took it hurriedly on the road leading to Jiwaji Ganj, morena. The loud-speaker set was damaged on account of the lathi-charge.

( 8 ) IN (1861-5 Bom HCR App 1) Peninsular and Oriental Steam Navigation Co, v. Secretary of State, the basic principle regarding liability of the State was stated thus :-

"there is a great and clear distinction between acts done in the 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. "

Having thus enunciated the basic principles, Peacock C. J. stated another proposition as flowing from it -"where an 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 exorcised except by sovereign, or private individual delegated by a sovereign to exercise them, no action will lie. "

In (ILR 59 Cal 1289 : (AIR )932 Cal 834)) Secretar