Ram Labhaya, Ag. C.J.
1. This is a first appeal from the judgment and decree of the Second Additional District Judge, U.A.D., at Jorhat, by which plaintiffs' claim was decreed to the extent of Rs. 77,000/- with proportionate costs against the Union of India. The suit was dismissed against the State of Assam. The Union of India has appealed. The suit was instituted originally against the Governor-General in Council, the Secretary of State and the Province of Assam. During its pendency in the trial Court, the Union of India was substituted for the first two defendants and the Province of Assam was described as the State of Assam.
2. The suit was for recovery of a sum of Rs. 80,200/-. This sum was claimed for trespass on and damage done to Nawpookhri Fishery of which the plaintiffs were the lessees. Plaintiffs 1 to 3 are the sons of the late C.K. Bezbaruah, plaintiff 4 (minor) is his grandson, and plff. 5 is the widow of late S.N. Bezbarua. All the plffs. claim to be the joint owners of the fishery known as Nawpookhri Fishery. C.K. Bezbarua died in August 1939. His right, title and interest in the fishery devolved on the plffs. and one Krishna Kamal Bezbarua who also subsequently sold his interest to the plffs.
3. C.K. Bezbarua in his life-time obtained a lease of Nawpookhri and Ailajan Fisheries from the Government of Assam for a period of 3 years from 1-4-36 to 31-3-39. Plaintiffs case is that in order to carry on the fishery on a commercial and scientific basis, late C.K. Bezbarua had to spend a considerable sum of money in reclaiming the said tank (Nawpookhri) and for improvements necessary to give effect to the scheme. As the three years' period of the lease was not enough for fully developing the fishery, the late C.K. Bezbarua got an extension of the lease for a further period of seven years. Besides the Nawpookhri and Ailajan fisheries, the late C.K. Bezbarua got on lease all the Jamunas surrounding the Nawpookhri tank, A lease of the western halves of the northern and southern banks of the tank was also obtained by him. These leases ran from year to year.
4. It is claimed that late C.K. Bezbarua constructed fish-nurseries with auxiliary installations at considerable expense, The construction of nurseries involved the putting up of a high embankment following the middle line of the Jamunas on all sides of the main tank (Nawpookhri). Thus the entire Jamuna was divided into two parts--the outer and the inner. The late C.K. Bezbarua then converted a portion of the inner Jamuna, namely, the western half of the northern Jamuna and the northern half of the western Jamuna, into a fish-nursery, and provided for the outlet of the fish in the fish-nursery by having a fish-tight gate constructed in the middle of the inner western Jamuna. Parts of the main tank were also enclosed for service as nurseries. These nurseries also were equipped with fish-tight gates. A bungalow and other dwelling houses were constructed on the banks after clearing the jungle. The investments came to about Rs. 20,000/- a year.
5. In 1936-37 the late C.K. Bezbarua purchased a very large number of Row and Bahu spawns from Amta and Rajshahi in Bengal. These spawns were reared in the fish nurseries. The plaintiffs, after the death of C.K. Bezbarua, made further improvements in the Fishery. They imported about 4,00,000 (four lacs) of Row and Bahu spawns in 1940 despite-transport difficulties. In 1941 local Row and Bahu spawns numbering about 8000 (eight thousand) were put into the nursery tanks.
6. It is alleged on or about 10-3-1944, a company of United States Army men in furtherance of the prosecution of the War, occupied the eastern bank of Nawpookhri tank. They pitched their tents there. Plaintiffs' men were prevented by the armymen from going to the eastern Jamuna, and so fishing had to be abandoned in that part of the fishery. The armymen later on extended their occupation up to the middle of the northern bank and installed a radio station. They set up a wooden gate at the junction of the approach road and the northern bank of the said tank, and sentries were posted to guard the same. The occupation by these army men continued till about the end of the year 1944. It is averred that throughout this period, plaintiffs were prevented access to the eastern Jamuna and were put to a loss of Rs. 1000 (one thousand) on account of being prevented from fishing in the eastern Jamuna and the eastern halves of the northern and the southern Jamunas. This was one item of the total claim.
7. About the beginning of May, 1944, it is further alleged that another party of Indian and British soldiers, with a large number of army trucks and vehicles, entered into the Nawpookhri Fishery and occupied the western and the western half of the northern bank of the Nawpookhri tank without any kind of requisitioning under the existing laws. This particular batch of soldiers left the place having caused damage to the bungalows and sheds. It may be noticed that so far as this batch is concerned, the damage attributed to them is limited to damage to the bungalows and sheds only.
8. Towards the end of May, another party of British and Indian troops, about 500 to 600 strong, with a large number of motor vehicles, occupied the aforesaid western half of the northern and the western banks. This party was in occupation of that part of the plaintiffs' fishery where their fishery business installation including the fish-nurseries, offices and godowns was located. They remained in occupation up to the end of July 1944. It is during this period that the plaintiffs alleged that serious damage was done to the fishery. This loss was due to the escape and destruction of select varieties of fish which had been reared in the fish-nurseries and nursery tanks. This batch of soldiers, it is averred, removed the 'bans' (barriers) placed at the outlets of the fishnursery and the nursery tanks. As a result of the removal of the barriers, the fish in the nursery and the nursery tanks escaped into the Ailajan and Namdang rivers and also into the adjoining areas under water. Small bombs which were thrown into the nurseries by the soldiers in occupation there had the effect of scaring away the fish. There were also excavations on the embankments and the consequent lowering of the wall partitioning the Jamuna.
The excavation on the embankment and the lowering of the walls also helped the fish to escape during the monsoon when the level of the water outside was high. The bombs also destroyed some fish in the nursery tanks and also in the main tank. The loss under this head has been estimated at Rs. 76,000/- (seventy-six thousand). The bulk of the fish from a lac (1,00,000) of fish from the fish nursery and about 5000 from the nursery tanks are said to have escaped; the rest were destroyed. The claim consisted of the following items:
1. Damage to bungalows, sheds, walls and furniture, including damage caused to the banks by digging pits - total
2. Damage to fishing nets, destruction of 'bans' (barriers) and bamboos which were used as fuel
3. Cost of repairs to embankments
4. Damage caused to dwelling houses by a batch of soldiers between the 18th June and the 23rd of July
5. Loss and destruction of fish ...
9. Plaintiffs averred that the occupation and User by the military of their fishery was illegal. They were inviting the attention of authorities from time to time to the loss that they were being put to but they got no redress though some officers visited the fishery and made some enquiries.
10. On behalf of the Union of India liability was denied. It was pleaded that the army lawfully occupied the banks of Nawpookhri Fishery in abnormal circumstances when the War threatened annihilation of the country. The allegations contained in paras 1 to 7 and 9 of the plaint were not admitted, and the plaintiffs were put to their proof. It was also pleaded that the property belonged to the Government and the plaintiffs could not claim compensation for any damage to it. As regards nets, it was averred that damage to them was caused as the plaintiffs did not remove them despite notice. The liability for damage caused by acts alleged to have been done by the forces -of the United States was specifically denied. The Union of India also raised the plea that it was not liable for unauthorised acts of its agents and servants. Immunity from liability was further claimed on the ground that no suit lay against the Union in respect of acts committed in the exercise of its sovereign authority.
11. The following issues were framed:
1. Whether the plaint discloses any cause of action against defendants 2 and 3 and the suit is liable to be dismissed against them for want of cause of action?
2. Whether any wilful damage was done to the fishery in the manner alleged by the plaintiffs?
3. Whether In view of the situation created by the war, the occupation by Army of the Banks of Naw Pukhuri is illegal?
4. What rights were acquired by the plaintiff to the Nawpukhuri including the banks?
5. What was the state of the fishery at the time the Army occupied the banks of the tank?
6. Did the Army prevent the plaintiffs in following the normal working or in any way interfere with Bans, etc.?
7. Are the plaintiffs entitled to any compensation? If so, to what extent and on what count?
8. Whether defendant 1 is a Sovereign and, as such is liable for any tort?
12. The learned trial Judge held, relying mainly on--'Municipal Corporation, Bombay v. Secy. of State', AIR 1934 Bom 277 (A), that the State in some cases could be made liable for tortuous acts, even though they may be acts of State, and further held that the Government could claim no immunity in a case of civil trespass to property. He found under Issue 3 that despite the fact that the occupation of the fishery commenced during the peak period of the War, there was no basis for a finding that the occupation was necessary and, even if such necessity was presumed, the occupation was not lawful. In his view, it was an invasion of rights in private property, and the case was one of trespass.
13. The fishery was found to have consisted of the tank known as Nawpookhri or Rudra Sagor, and the 4 Jamunas on its four sides. So far as the banks were concerned, the settlement in favour of the plaintiffs was in respect of the western bank and the western halves of the northern and southern banks. Plaintiffs had no right to the eastern bank and the eastern halves of the northern and the southern banks. The plaintiffs had the lease of the main tank and the Jamunas on all four sides thereof up to 31-3-1946. They were also granted annual leases in respect of the western bank and of the western, halves of the northern and the southern banks. By the settlements and the leases, the plaintiffs acquired the rights to develop, and maintain fisheries. They also had the rights of an annual settlement-holder to use the western bank and the western halves of the northern and southern banks.
14. On issues 2 and 6, his finding was that the troops caused damage to the 'bans' (barriers), nets and 'dhaps' and this damage was wilful. The acts causing damage were not within the scope of the normal activities of army men for defence purposes. The troops also prevented the plaintiffs from doing their normal business of the fishery and thus caused wilful damage.
15. As to the quantity of fish lost to the plaintiffs, his finding was that in the beginning of 1941 there were about one lac seventeen thousand spawns; some out of these were sold out later to remove congestion. In his view, the thinning could not possibly reduce the fish to anything lower than one lac five thousand. His conclusion was that at the relevant time, Nawpookhri was a full-fledged fishery with not less than one lac of fish in the Jamunas. It had also a bungalow, an office, huts and sheds with 'bans' (barriers) and dhaps in the Jamunas.
16. The claim as regards the item of Rs. 1000/- which was claimed on account of loss for being prevented from fishing in the eastern Jamuna was abandoned by the plaintiffs, as it was attributed to troops from the United States. The price of one lac of fish in -the Jamunas was assessed at Rs. 75,000 at the rate of He. -/12/- (twelve annas) per fish, and this sum was allowed on account of loss of fish. The only other item allowed was a sum of Rs. 2000/- on account of damage to huts, houses and nets, etc. No compensation has been allowed for any loss of fish from the nursery tanks.
17. The correctness of the decree in regard to the two items which have been decreed is challenged. Mr. Ahmed, the learned counsel for the defendant appellant has first urged that the occupation complained of was an act for which the Union of India was not answerable in the municipal courts of the country. He argued that the occupation was an act of State in the exercise of the sovereign powers of the State which it could draw upon when a global war which threatened the security of the country was raging. For such an act no action lies. Plaintiffs respondents could only get redress from the executive Government by a petition or a representation in the nature of a petition of right. The plea is a denial of the jurisdiction of the municipal Courts to entertain the claim.
18. Plaintiffs' case was that no part of the fishery was requisitioned under the Defence of India Rules before occupation. There is no denial of this fact. The learned Additional District Judge who heard the case found that there was nothing to indicate that any steps were taken to requisition any part of the fishery for use and occupation under the Defence of India Rules. Mr. Ahmed does not dispute this fact. His case is that though the Government had the power to requisition the property under the Defence of India Rules (vide S. 2(24), Defence of India Act, read with Rule 79, Defence of India Rule), its power to occupy the property in an emergency like war or rebellion in the exercise of its sovereignty remained in tact and the exercise of this power could not be questioned in Courts of law.
19. Mr. Ghose, the learned counsel for the respondents, argued that the proposition as stated by Mr. Ahmed was not sound. He urges that the plea that the State is not answerable as the act complained of was in the exercise of its sovereign power's or that it was an act of State was not available against a subject of the State under any circumstances. He seemed to think that the exercise of sovereign power which conferred immunity from liability was possible only against foreign States or subjects of foreign States.
20. Mr. Ahmed's alternative contention was that the Government of India was not liable for the torts of its servants and employees under the Government of India Act, 1935, and compensation for any loss or damage could not be claimed from it. Mr. Ghose's answer to this contention was that the Government could not escape responsibility for damages caused by trespass of its servants on private property. The occupation of fishery was illegal and in any case compensation for occupation could be claimed and also for any damages that the plaintiffs suffered as the, direct result of the occupation of the fishery.
21. As shown above the Union of India has been substituted for the Governor-General in Council and the Secretary of State who were originally sued. The substitution became necessary when the Constitution of India came into force.
22. The main question of law in the case is whether and to what extent, if any, the Government of India could claim immunity under the Government of India Act, 1935, against its subjects on the ground that impugned acts were clone or committed in the exercise of the sovereign powers of the State or that they were torts committed by its servants.
23. Sovereignty is an acknowledged and an essential attribute of the State. It is the source of all ultimate authority within its territorial limits. It follows that the sovereign power should not normally be liable to be sued in its own Courts without its consent. The Courts are constituted by it in the exercise of its sovereign power and can have no jurisdiction or power over it unless it has consented to submit to their jurisdiction, they being its creatures. Limits to which Courts in a country may have jurisdiction over the State or its acts may be defined in a Constitution. The Government of India had sovereignty delegated to it by the British Crown. The British Crown got it from the East India Company, The Company began as a trading corporation. It required certain sovereign rights when it obtained the Dewani from a Moghul Emperor in 1765, But the Company held the Government of India in trust for the British Crown by virtue of the Charter Act of 1833. In 1858 when the first Constitution Act was passed, the Company had a duel character. It was a trading corporation and it was also possessed of certain sovereign rights.
The object of Section 65 of the Act of 1858 was to transfer to Her Majesty the possession of the Government of British territories in India which were then held by the East India Company in trust for the Crown. That section provides that the Secretary of State in Council would sue and be sued as a body corporate and all persons could have the same remedies in proceeding legal and equitable against the Secretary of State in Council as they could have had against the corporation. This provision was in substance reproduced in Section 32, Constitution Act of 1919, which provides as follows:
'Every person shall have the same remedies against the Secretary of State in Council as he might have had against the East India Company if the Government of India Act 1858 and this Act had not been passed.'
24. Section 176, Constitution Act, (1935), is also to the same effect. It provides that the Federation and a Provincial Govt. may sue and be sued in respect of their respective affairs in cases in which the Secretary of State in Council might have sued or been sued if this Act had not been passed.
25. The result of these provisions has been that only such suits could be maintained against the Government of India under the Constitution Act of 1935 as could be maintained against the East India Company before the Government of India Act, 1858, was passed. The determination of the question involved in the two-fold contention raised on behalf of defendant appellant depends on the interpretation of the provisions contained in Section 176 of the Constitution Act, 1935, which merely reproduces the law which has been in force since 1858. Decisions given on the corresponding provisions of the earlier Constitution Acts, therefore, all bear directly on the question before us. Of these cases those relied on by Mr. Ahmed in support of his contention may now be examined.
26. He began with the leading case on the point reported in--'P. & O. Steam Navigation Co. v. Secy, of State', 5 Bom H C R App 1 (B). In this case plaintiffs (the P. and 0. Steam Navigation Co.) sued to recover damages sustained by them by reason of injuries caused to their house through the negligence of certain servants of the defendant (Secretary of State for India). It was held in this case that the Secretary of State in Council was liable for damages occasioned by the negligence of its servants in the service of the Government while they were engaged in a commercial undertaking which could be carried on by a private individual not possessed of sovereign powers.
Explaining the position of the East India Company Sir Barnes Peacock who delivered the judgment in the case observed as follows:
'We are further of opinion that the E. I. C. were not a sovereign and, therefore, could not claim all the exemptions of a sovereign, and that they were not the public servants of Government, and, therefore, did not fall under the principle of the cases with regard to the liability of such persons, but they 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 purposes of Government and partly on their own account which, without any, delegation of sovereign rights, might be carried on by private individuals. There is 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.'
In relation to the exercise of the delegated sovereign powers, his conclusion was stated as follows:
'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 exercised except by a sovereign or private individual delegated by a sovereign to exercise them, no action would lie.'
We are not concerned with the first rule laid down by Sir Barnes Peacock. It deals with the commercial ventures of the Company which any private individual could engage in. It is the second part of it that bears on the question in the case. It is the dictum relating to acts done or contracts entered into in the exercise of powers usually called sovereign powers that we are concerned with in this case. Mr. Ahmed relies on this dictum. It may be stated that the dictum is obiter.
27. In--'Nobin Chunder Dey v. Secy. of State', 1 Cal 11 (C) the plaintiff was the highest bidder at a sale of licenses for selling liquor and drugs. He did all that was necessary for him to entitle him to the licenses but he did not get them. The result was that he was forced to close his shops. He sued for compensation for the damage suffered and in the alternative for the refund of the deposit made by him. The suit was against the Secretary of State for India. It was held that the acts or omissions complained of were of officers employed in the excise department of the Government. The sale at which the plaintiffs claimed to have purchased the rights he was seeking to enforce, constituted a part of the machinery and arrangement by which the imposition and collection of excise duties were regulated in the country. These acts could only be performed in the exercise of the sovereign powers of the State. The claim, therefore, could not be enforced against the Government of India. The acts complained of could not have been done by a private individual.
This decision recognizes the position that the plea that an impugned act is an act of State in the exercise of its sovereign powers can be available to the State against its own subjects even in times of peace. This is the first case in which the dictum of Sir Barnes Peacock was so applied that even acts of Government officials which were done professedly under the sanction of the municipal law were regarded as such acts of State for which the Secretary of State for India was held not liable.
28. In--'Secy, of State v. Srigobinda', AIR. 1932 Cal 834 (D) plaintiff's case was that the manager of the Court of Wards and the staff employed under him had mismanaged the affairs of his estate. He sued the Secretary of State for India for damages. It was held that where an act was done by an officer of the Government in the exercise of powers which cannot be lawfully exercised, save by the sovereign power, no action in tort lies against the Secretary of State for India in Council upon the principle of 'respondent superior'. Even here the decision in--'the P. and O. Steam Navigation Company's case (B)' was followed. In--'Uday Chand Mahatab v. Province of Bengal', 51 Cal W N 537 (E) a collector holding a sale under the Putrii Regulation, 1819 negligently paid out the sale proceeds thereof to a person who was not entitled to the same. On an application made by the landlord for payment of the same he declined to do so. It was held that the Crown was not liable for the negligence of the collector. The decision follows the view taken in '1 Cal 11 (C)'.
In this case also a distinction was drawn between acts done by the Crown in pursuance of ventures which a private individual might undertake equally well and acts done in the exercise of Governmental powers. Acts of the latter class were divided into two categories one of which covered acts of State properly so called, such as making a treaty, commandeering of property for war purposes or for quelling of civil disturbances. These were held not justiciable. Acts placed in the second category were acts which are done under the sanction of some municipal law or statute and in the exercise of powers thereby conferred. This class of acts was again sub-divided and it was held that for acts involving detention by the Crown of lands, goods or chattels belonging to subjects an action would lie in the Courts in India but no action would He in regard to acts done by officers of the Crown in the discharge of their official duties, except in cases where it can be found that the impugned act had been expressly authorised by the Crown or that the Crown had profited by its performance.
29. In--'Secy, of State v. Hari Bhanji', 5 Mad 273 (F) the learned Judges of the Madras High Court dissented from the view that prevailed in '1 Cal 11 (C)'. In this case it was held that the acts of State of which the Municipal Courts in British India were debarred from taking cognizance are acts done in the exercise of sovereign powers, which do not profess to be justified by Municipal law. Where an act complained of is done under the sanction of the Municipal law and in the exercise of powers conferred by that law, the fact that it is done by the sovereign power and is not an act which could possibly be done by a private individual, does not oust the jurisdiction of the Civil Court. While according to this decision, acts done under the sanction of Municipal law are not outside the jurisdiction of Municipal Courts, it was recognized in this case also that acts done by the Government in the exercise of sovereign powers for making peace and war or concluding treaties obviously do not fall within the province of Municipal Law and although in the administration of domestic affairs the Government ordinarily assumed powers which are regulated by that law yet there are cases in which the supreme necessity of providing for the public safety compels the Government to do acts which do not pretend to justify them by any canon of Municipal law. For the exercise of these powers the Government is not responsible to the Courts constituted by it.
30. Support was derived for this view from the Tanjore cass--'Secy. of State v. Kamachee Boye Sahaba', 7 Moo Ind App 473 (G). The relevant observations reproduced in this case from the judgment of Chief Justice Tindal in the case of--'Gibson v. E. I. Co.', (1839) 5 Bin NC 262 (H) at p. 273 are in the following; terms:
'It is manifest that the E. I. Co. have been invested with powers and privileges of a twofold nature perfectly distinct from each other, namely, powers to carry on trade as merchants and subject only to the prerogative of the Crown to be exercised by the Board of Commissioners for the affairs of India,--power to acquire and retain and govern territory, to raise and maintain armed forces by sea and land, and to make peace or war with the native powers in India.'
It was further observed by Lord Kingsdown 'That the acts done in the exercise of these sovereign powers were not subject to the control of the Municipal Courts, either of India or Great Britain, was sufficiently established by the cases of--'Nabob of Arcot v. The E. I. Co. (I) in the Court of Chancery in the year 1793, and--'East India Co v. Syed Ally', (J) before the Privy Council in 1827.'
31. The 'Madras case' and the 'Tanjore case' both support the contention that the East India Company and its successor the Government of India had delegated sovereign powers and the acts done in the exercise of their sovereign powers properly so called even though affecting subjects, were outside the jurisdiction of Municipal Courts.
32. In '5 Mad 273 (F)' reliance was also placed on--'Forester v. Secy, of State', 2 Suth W R 628 (PC) (K). In this case plaintiff claimed title from the Begam Sumroo. When the East India Company acquired the Doab and territories on the west of the Jumna, this lady held a jaghir in the Doab subject to the obligation of maintaining a body of troops for the service of the sovereign. The administration of the territory included in the jaghir both civil and criminal was vested in the Begam. On the death of the Begam the East India Company resumed the jaghir and seized the arms and military stores. The plaintiff sued to recover the estate and compensation for seizure of arms. It was prayed that Begam was an independent or quasi-independent sovereign and that the resumption and seizure were acts of State of which the propriety and validity were not questionable in any municipal Court. The Privy Council held that the Begam was not a sovereign and over-ruled the plea raised on the ground
'that possession was taken under colour of legal title, that title being the undoubted right of the sovereign power to resume and retain or assess to the public revenue all lands within its territories upon the determination of the tenure under which they may have been exceptionally held rent-free. If by means of the continuance of that tenure for other cause a right be claimed in derogation of the title of the Government, that claim like any other arising between the Government and its subjects would prima facie be cognizable by the municipal Courts of India.'
33. The rule deducible from 'Forester's case (K)' is that when the State acts under colour of legal title, its act is justiciable. Its consent to submit to the jurisdiction of municipal Courts has to be presumed.
34. In--'A.M. Ross v. Secretary of State', AIR 1915 Mad 434 (L) Wallis J. expressed the. opinion that the 'Peninsular Company's case (B)' decided that the East India Company and the Secretary of State after it did not enjoy any immunity in respect of any torts committed in transactions that could be carried on by private individuals but whether immunity extended to torts committed in performance of acts or transactions in the exercise of Governmental authority was not finally decided.
35. In--'the Secretary of State v. Moment', 40 Cal 391 (M) the question was whether the Government of India could make any law the effect of which was to debar a civil Court from entertaining a claim against the Government of India to any right over land. Section 41(b) of Act 4 of 1898 (Burma) was impugned. Their Lordships of the Privy Council held that a suit of the character which the civil Courts were debarred from entertaining against the Government was such that could have been competent against the company. The impugned section, therefore, contravened S. 65, Government of India Act, 1858.
36. The decision in the 'Peninsular Company's case (B)' was approved by their Lordships of the Judicial Committee in this case. Lord Haldane who delivered the judgment of their Lordships of the Judicial Committee observed as follows:
'Their Lordships are satisfied that the suit of this character would have lain against the Company. The reasons for so holding are fully explained in the judgment of Sir Barnes Peacock C. J. in--'P. & O Co. v. Secretary of State', (B).'
37. Even these observations from their Lordships of the Privy Council did not resolve the conflict of judicial opinion in India regarding the scope of the decision in the 'Peninsular Company's case' (B). In--'Secy, of State v. Cockcraft', AIR 1915 Mad 993 (N), the claim was for damages in respect of injuries sustained by the plaintiffs in a case of carriage accident which was alleged to have been caused by the negligent stacking of gravel on a road which was said to be a military road, maintained by the P. W. D. It was held that the liability of the Secretary of State for India was similar to that of the E. I. Co. which had two distinctive functions to perform, which were also to be performed by the Government of India, namely, (1) in the exercise of sovereign rights, and (2) the carrying on of transactions which could have been carried on by private individuals or trading corporations. In the former case, the E. I. Co. and, therefore, the Government of India would be exempt from liability. The making and maintenance of roads was held to be a sovereign function. Sheshagiri J. in this case expressed the opinion that the immunity in the performance of sovereign functions was subject to three exceptions, namely (1) when trespass was committed by an order of the Government or when it was recognised to have been committed for their benefit, (2) when the State prescribes limits or conditions under which executive acts are to be performed, and those limits are transgressed and (3) when the State has benefited by a wrongful act of its servant. It may be noticed that in this case the view taken was that the Privy Council had accepted that part of the decision in the--'Peninsular Company's case' (B) according to which acts done in the course of undertakings carried on in the exercise of sovereign powers were made unjusticiable. Rankin C.J. in--'AIR 1932 Cal 834' (D), however, observed as follows:
'It remains, however, so far as we can see open to the consideration of the Judicial Committee whether or not a suit lies against the Secretary of State for India in Council in respect of an act of a subordinate in connection with the exercise of sovereign or Governmental power.'
38. In--'Kishenchand v. Secy. of State' 3 All 829 (O) there was difference of opinion between the learned Chief Justice and Span-kie J. on the question whether where the Government had entered into a contract with the plaintiff to confer proprietary rights in land on him, the act could be regarded as in the exercise of sovereign powers or not.
39. In--'High Commr. for India v. I. M. Lall', AIR 1948 P C 121 (P) Lord Thankerton who delivered the judgment of their Lordships of the Privy Council, observed as follows:
'It is unnecessary to cite authorities to establish that no action in tort can lie against the Crown and, therefore, any right of action must either be based on contract or conferred by Statute.'
This dictum has also been relied upon by Mr. Ahmed, but this has to be read in relation to the facts of the case. It was based on the judgment of Lord Blackburn in the Scottish case, in--'Mulvenna v. Admiralty', 1926 S C 842 (Q). It is clear from the quotation from the judgment of Lord Blackburn that the dictum relied upon related to the power of the Crown to dismiss public servants and its immunity from suits in cases of wrongful dismissal. The decision may not be interpreted as laying down a general proposition applying to all cases of torts. It is limited in its application to a case of wrongful dismissal of a Government servant and is thus distinguishable. The decision in--'Venkata Rao v. Secy. of State', AIR 1937 P C 31 (R) is also distinguishable on the same ground.
40. In--AIR 1934 Bom 277' (A) it was held that
'the expression 'act of State' is usually applied to an act of the sovereign towards foreign subjects, whether it be in times of war or in times of peace, but there could be an act of State as between a sovereign and its subjects in times of war. It would, however, be a misnomer to call the administrative acts of a sovereign against its own subjects in times of peace as acts of State and to claim immunity in respect of them although they amount to a contract in the ordinary sense between the sovereign and his subjects'.
It was further held in this case that apart from commercial transactions of the Secretary of State there are only 3 exceptions in respect of which he could be made liable though the acts may be acts of State. The exceptions are (1) trespass to immoveable property, (2) obligation imposed by a Statute and (3) when it can be shown that benefit has resulted to Government from a tort of its servants. Mr. Ahmed points out that even according to this decision there can be an 'act of State' between the State and its subject at least in times of war though his contention is that such an act should be possible even in times of peace.
41. The authorities considered above leave no room for doubt that the expression 'act of State' was being used to describe acts between the State and its subjects. They militate against the contention that an act of State is not conceivable between the State and its subjects.
42. Mr. Ghose, the learned Advocate for the respondents derived support for his contention from--'Eshugbayi Eleko v. Officer Administering Government of Nigeria', AIR 1931 P C 248 (S). This case arose out of a deportation order by which the appellant was ordered to be deported by an officer administering the Government of Nigeria. The learned counsel has drawn our attention to a passage from the judgment delivered by Lord Atkin wherein the learned Lord observed as follows:--
'The Governor acting under the Deportation Ordinance acts solely under executive powers, and in no sense as a Court. As the executive he can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence, no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice.'
In our opinion the passage does not support his contention. It relates to an act of on executive officer which was professedly done under the Municipal Law.
This was made clear in another passage occurring in the judgment which is to the following effect:
'A suggestion was made by one of the learned Judges that the order in this case was an act of State. This phrase is capable of being misunderstood. As applied to an act of the sovereign power directed against another sovereign power or the subjects of another sovereign power not owing temporary allegiance, in pursuance of sovereign rights of waging war or maintaining peace on the high seas or abroad, it may give rise to no legal remedy. But as applied to acts of the executive directed to subjects within the territorial jurisdiction, it has no special meaning, and can give no immunity front the jurisdiction of the Court to inquire into the legality of the act.'
What was held was that the use of the expression 'act of State' in relation to an act directed against a subject had no significance; it could confer no immunity. The general question of the extent to which sovereign power of the State may be utilised on occasions of emergency even against its own subjects did not arise in the case and the observations relied upon were limited to the acts of an executive officer who could act only under the authority conferred on him by the Municipal law.
43. The learned C. J. of the Bombay High Court had occasion to consider this case in-
'P. V. Rao v. Khushaldas S. Advani', A. I. R. 1949 Bom 277 (T). Referring to this case he observed:
'The Privy Council in--'AIR 1931 P. C, 248' (S), were considering the executive acts of the Governor of Nigeria who issued an order against an appellant to leave a specified area, and upon his failing to comply, ordered his deportation to another place in the Colony......'
This executive act was performed under the provisions contained in an ordinance.
44. The contention raised before the learned Chief Justice was that Courts of law in India cannot compel the Government to justify its acts as being within the law and cannot give protection to the subject if the Government affects his rights or imposes liability upon him contrary to the provisions of the law. The learned Chief Justice when dealing with this contention described the significance and import of the expression 'act of State' in the following terms:
'An act of State is different fundamentally from an act of a sovereign authority. An act of State operates extra-territorially. Its legal title is not any municipal law but the overriding sovereignty of the State. It does not deal with the subjects of the State but deals with aliens or foreigners who cannot seek the protection of the municipal law. It is difficult to conceive of an act of State as between a sovereign and his subjects. If Government justifies its act under colour of title and that title arises from a municipal law, that act can never be an act of State. Its legality and validity must be tested by the municipal law and in municipal Courts. In this case, the Province of Bombay is justifying its requisition order under the Ordinance which is a municipal law and, therefore, it cannot claim as a sovereign authority to be exempt from a municipal Court and cannot claim immunity from having to justify its act in a municipal Court.'
45. The question that had to b9 decided in this case was whether the Bombay Government could claim the immunity of a sovereign in respect of an act done under the authority of the municipal law. The learned Chief Justice held that the Government could not claim immunity in respect of the act in question and that they could be called upon to justify it in a municipal Court. With this proposition we respectfully agree. The learned counsel for plaintiffs-respondents, however, urges on the strength of this decision that an 'act of State' must operate extra-territorially. It does not deal with the subjects of the state but deals with the aliens or foreigners. It seems to me that the learned Chief Justice when observing that acts of State must operate extra-territorially and against foreigners or foreign States, was giving the meaning of the expression which it conveys in England now. In India so far the expression has not been used in this limited or narrow sense. All acts of the Government whether in the sphere of foreign affairs or affecting its subjects in times of emergency and even otherwise have been described as acts of State.
46. The decision in--'AIR 1949 Bom 277' (T) was appealed from. The majority of the judges of the Supreme Court on appeal vide--'Province of Bombay v. Khushaldas S. Advani', AIR 1950 S C 222 (U) did not go into the question whether the State of Bambay could claim immunity on the ground that the Act complained of was an act of State. Mookerjee J. with whom Mahajan J. agreed, dealt with this aspect of the matter. The relevant observations occur at page 248 in the following passage:
'The question, therefore, narrows down to this as to whether an action of the character that has been brought against the Province of Bombay could have been brought against the East India Company prior to 1858. In my opinion the answer to this question must be given in the affirmative. All the relevant authorities on this point have been carefully reviewed by the learned Judges of the Bombay High Court, and I am in entire agreement with the reasons assigned by them in support of their conclusion. It is true that the East India Company was invested with powers and functions of a two-fold character. They had on the one hand powers to carry on trade as merchants; on the other hand they had delegated to them powers to acquire, retain and govern territories, to raise and maintain armies, & to make peace and war with native powers in India. But the liability of the East India Company to be sued was not restricted altogether to claims arising out of undertakings which might be carried on by private persons; but other claims, if not arising out of acts of State, could be entertained by Civil Courts, if the acts were done under sanction of municipal law and in exercise of powers conferred by such law.'
The learned Judge excepted acts of State from the cognizance of the Courts and held that claims could be entertained by Civil Courts if the acts were done under the sanction of the municipal law and in the exercise of powers conferred by such law. A restricted rule was enunciated. Claims not arising cut of acts of State could be entertained by civil Courts, if the acts were done under the Sanction of municipal law and in the exercise of powers conferred by such law. The obvious implication is that claims could arise out of acts of State and such claims would not be entertainable by civil Courts when they were not done under the sanction of municipal law. The learned Judge excepted acts of State from the cognizance of the civil Courts on the assumption that such acts were possible between the State and its subjects.
47. The learned counsel for plaintiffs-respondents has referred us to some standard works on Constitutional Law and on Torts with a view to showing that the expression 'act of State' is limited in its application to acts of the sovereign authority in the domain of foreign affairs. He first referred us to a passage in 'Constitutional Law' by S. I. R. Frazer., second edition. On page 152 the significance attaching to that expression is given in considerable detail. On page 152 the author has referred to the prerogative which the Crown in England can exercise against His subjects. The following lines may be reproduced:
'Finally, in times of emergency the prerogative entitles the Crown to infringe many of the rights of its subjects with impunity. Thus it can requisition ships and other property belonging to British subjects, and it can enter upon private property to erect fortifications. No doubt the prerogative would entitle the Crown in time of emergency to do many other acts which would normally be civil wrongs, but in recent times the Crown has not attempted to exercise its prerogative to the full but has relied upon such statutory powers.'
48. According to Wade and Godfrey Phillips those acts of the Crown which are done under the prerogative in the sphere of foreign affairs are known as acts of State. But these acts of State in the foreign affairs do not exhaust the prerogative of the sovereign power on which the prerogative rests, vide 'Constitutional Law' by E. C. S. Wade and G. Godfrey Phillips p. 177. The expression 'prerogative' has been explained on p. 127 of the same book in the following terms:
'It has been said that prerogative powers are those powers which the law recognises as belonging to the Crown other than powers conferred by statute. If an individual disputes the validity of an act purporting to be done under the prerogative, the Courts will investigate whether or not the alleged prerogative power exists. Once, however, its existence and extent are established, the manner of its exercise can only be questioned in Parliament. The mere plea of State necessity will not, however, serve to protect anyone accused of an unlawful act towards subjects.'
The position has been very clearly stated in 'Cases in Constitutional Law' third edition by D.L. Keir and F.H. Lawson in the following passage (p. 295):
'Prerogative properly describes the power and authority of the Crown in relation to his own subjects and the rights vested in him in relation to persons owing no allegiance to him.'
'The acts of the Crown in foreign affairs are described as acts of State and the term, is used of them exclusively. The distinction is not altogether easy to defend, for there seems little doubt that all acts done by the discretionary authority of the Crown, other than those authorised by statute, are of the same legal nature, whether they are performed within or outside the realm. But it is nevertheless convenient. Whereas in respect of acts done within the realm, the Courts are not obliged to abandon jurisdiction at the mention of prerogative, they cannot enquire into the validity of an act of State.'
In--'Pollock's treatise on Torts the relevant passage occurs on page 87 and is as follows:
'Some writers deny that outside actual seat of hostilities there is any common law justification at all. Some think that there is, and that it wholly excludes the authority of the Courts; one or two have propounded extravagant theories of a supposed prerogative of the Crown in the matter. I venture to think it the better opinion that whatever, in time of war within the jurisdiction, is or reasonably appears necessary for the common defence against the king's enemies is justified by the common law, but that, in the absence of an act of indemnity, the existence of the necessity and the reasonableness of the act are to be determined by the ordinary Courts when peace is restored.'
49. Briefly stated the position in England as gleaned from quotations from the treatises referred to above is that all acts of sovereign authority not authorised by statute whether against foreigners or against its own subjects are of the same nature. They are acts in the exercise of sovereign authority. When these acts affect foreign States or foreigners, they are not justiciable. Municipal Courts have no jurisdiction to question or examine their validity. In England the expression 'act of State' signifies every act coming under this category. Acts of the sovereign authority against its subjects in times of war, rebellion or any other emergency of a like nature not done under the sanction of the municipal statute, are acts deemed to have been done in the exercise of the prerogative. The view that holds the field is that these acts enjoy limited immunity. The Courts should not decline jurisdiction on the ground that the plea of prerogative is raised. They should examine the necessity and the reasonableness of the act in the absence of an act of indemnity.
50. Indian decisions which have been cited before us do not support the contention that the expression 'act of State' refers only to acts against foreigners or foreign States. The expression has been used in relation to all acts of the sovereign authority whether they operated extra-territorially or whether they were acts between the State and its own subjects. No distinction has been made between acts of the sovereign authority affecting foreign States or foreigners and those which affect the citizens of the State. In fact the expression has also been used in relation to acts in the exercise of all Governmental authority, though in some cases it has been held that acts professedly done under the sanction of the municipal law and in the exercise of powers conferred by it are justiciable. The division of sovereignty into two compartments which has taken place in England for purposes of convenience, has not been adopted in India. The difficulty in adopting this division was probably historical. The East India Company and its successor the Government of India under the different Constitution Acts enjoyed delegated sovereignty. They did not have the prerogative of the Crown which admitted of the division that obtains in England. Here all acts in the exercise of delegated sovereign authority have to be described as acts of the State done in the exercise of powers conferred on the State by statute. The source of authority in regard to both kinds of acts is even here the same as in England. There can be, therefore, no doubt that when sovereign power is exercised in relation to subjects of the Crown in times of war, rebellion, insurrection etc., the State has the power to requisition or commandeer the private property of its subjects, Acts done on such occasions and affecting the person and the property of its subjects are acts of State. To what extent should the State enjoy immunity with regard to such acts is another question.
51. Mr. Ghose has also relied on two English cases. The first is the case of--'Walker v. Baird', (1892) A C p. 491 (V). In this case, the officers of the Crown had with the authority of the Government, seized the lobster factory of a British subject in Newfoundland. An action was brought in the Court of Newfoundland against the officers concerned. It was held that in an action of this description in which the plaintiffs were British subjects for a trespass within the territory in times of peace, it was no answer to say in exclusion of the jurisdiction of the municipal Courts that the trespass was an act of State. The suit in this case was not against the State. The defence that it was an act of State was held not available to the officers who were sued.
52. The next case relied on is the case of--'Johnstone v. Pedlar', (1921) 2 A C 262 (W). Pedlar who was born in Ireland, and became a naturalised American in 1916, returned to Ireland, took part in the rebellion and was deported; in 1917 he returned to Ireland; in 1918 he was convicted of illegal drilling. He was arrested and searched. A cheque and some money was found on his person. He was detained. He sued for recovery of his property. It was held that it was the settled law of the country that when a wrongful act was committed against the person or the property of any person, the wrong-doer cannot set up as a defence that the act was done under the authority of the Crown. The Crown can do no wrong and the sovereign cannot be sued in tort but the person who committed the act was liable for damages, as any private person would be. The defence of such an act being an act of State was held not available on the authority of--'(1892) A C 491' (N) the case dealt with above.
53. These two cases, however, are no authority for the proposition that there can be no occasion for the exercise of sovereign powers against the subjects in time of war or in any other emergency like rebellion, civil war, etc., or that the State cannot claim any immunity with respect to such acts under any circumstances.
54. Using the expression 'act of State' in the broader sense in which it has been generally used in Indian decisions, the following conclusions may be deduced from the case law reviewed above:
(1) Acts of State falling within the foreign sphere, e.g., against foreigners or foreign State are completely immune from scrutiny by municipal Courts. The State enjoys absolute immunity in regard to such acts.
(2) Acts in the exercise of sovereign power of the State in times of war, insurrection, rebellion and other emergency of a like character affecting the person or the property of the subjects which in England are described as acts in the exercise of prerogative but which in India have been regarded as covered by the expression 'act of State' should also enjoy immunity. But immunity in regard to these acts cannot in the nature of things be larger than that enjoyed by the Crown in England as the Government of India had only delegated sovereignty under the Act of 1935. The extent of this immunity has not been judicially determined either in England or in India. There is considerable divergence of opinion amongst Constitutional thinkers in England. As observed by Pollock in his treatise on Torts (p. 87) the 'better view seems to be that in the absence of an Act of indemnity the existence of the necessity and the reasonableness of the action should be determined by ordinary Courts when peace is restored.' The Courts, therefore, may not decline jurisdiction in regard to such acts merely because privilege or immunity is claimed. The State should satisfy the Court as to the necessity and the reasonableness of the action before it could command recognition of its claim to immunity. In the absence of an authoritative precedent we think the immunity to State for acts under this category should be as limited and not larger than that of the Crown in England. The necessity and the reasonableness of the act should be subject to judicial scrutiny by Courts. Where these conditions are satisfied, the Court should have no further jurisdiction.
55. Acts not falling under the above two categories but which are acts of officers or the servants of the Government and for which an action would lie against the Secretary of State are-
(1) Acts professedly done under the sanction of the municipal law and in the exercise of powers conferred by that law and similarly acts for which there is an enforceable statutory obligation,
(2) Acts of detention by the Government or jits officials, of lands, goods or chattels belonging to the subject including acts of trespass, and
(3) Acts expressly authorised by the Government or where the Government has profited by their performance.
56. The question that next arises is whether the appellant was not answerable for admitted occupation of certain parts, of the fishery by its troops. The occupation with which we are concerned at this stage commenced in the beginning of May and after some interruption continued till the end of July. It was by two sections of the British and Indian soldiers. The first section came in the beginning of May and stayed only for a couple of days. The second batch came towards the end of May and remained there till the end of July. They occupied parts of the western and northern banks. On the western bank there were admittedly some structures. The plea put forward by defendant appellant in regard to this occupation is that it was in the exercise of sovereign powers and for purposes of war which was then raging. We have come to the conclusion that exemption from liability on this basis can be claimed only if it is established that there was emergency of a grave character which necessitated such occupation and that it was to a reasonable extent. No evidence was produced on behalf of the defendant appellant at all to prove the gravity of the emergency which justified this occupation without recourse to the provisions of the municipal law contained in the Defence of India Act and the Rules framed thereunder. It appears that on 10th May plaintiffs respondents informed the S. D. O., Sibsagar, that the military authorities had occupied the eastern bank of Nawpookhuri and had made fishing in the eastern Jamuna impossible. The occupation of the eastern bank commenced in March. A party of American, soldiers came then but the plaintiffs informed the S. D. O., Sibsagar, about it when the occupation had been extended to the western bank. Mr. Borgohain, Sub-Deputy Collector was deputed for enquiry. He visited the fishery and made his reports on 19th and 29th May. He again visited the fishery in June and in October and made his reports after some necessary investigation on the spot on both the occasions. There is no suggestion that there was any dislocation of Governmental activity. The work of administration was going on in the normal way. The Courts were functioning and the business activity also continued in the usual way. The American soldiers remained on the eastern bank and part of the northern bank till about the end of the year. There was no fighting of any kind during this period or even afterwards in the Sibsagar District where the fishery is situated. The claims officer had his office at Shillong. He informed the plaintiffs on 16-4-1945 that their claim petition dated 2nd September was being investigated without prejudice to the question of liability and a decision would be communicated as soon as possible. In July the Claims Commission District Officer was reminded of the claim. In December 1945 the plaintiffs were informed that he would be visiting Jorhat in connection with their claim during that month and the decision would be communicated to them after that. Absolute immunity from liability was not claimed on the ground that the act was in the exercise of sovereign powers in an emergency.
57. The Government admittedly had the right to acquire or requisition the fishery for the efficient prosecution of war. By the Defence of India Act and the Rules framed thereunder the Government had equipped itself with vast powers for any emergency that may result from hostilities. There is nothing on the record to show that the situation was so grave or that the danger to the country was so imminent that action could not be taken under the Defence of India Rules.
58. The learned counsel has referred us to pp. 140 and 379 of 'Two Historic Trials in Red Fort'. He has tried to show from the, evidence given in the I. N. A. trial that the Japanese had occupied Burma in June 1944. Reference to the evidence in that trial has been objected to. But assuming that judicial notice could be taken of the fact that Japanese had occupied Burma in June 1944, it does not establish that requisition of the fishery for the needs of the Government was not possible under the Defence of India Rules. Operational Area (Special Powers) Ordinance No. 37 of 1943 has also been referred to. The ordinance was meant to authorise in the area contiguous with territories then occupied by the enemy the trial of certain offences by Military Courts. Some new offences were also created and in certain cases enhanced penalties were permitted. The Ordinance was extended to the entire province of Assam as the area contiguous to the area occupied by the enemy. This does not advance the case of the appellant. It shows that the province of Assam was not the seat of hostilities. No part of it was wholly under martial law though certain offences were made triable by Military Courts.
59. Reliance has also been placed in this connection on--'D.F. Marais v. General Officer Commanding' reported in (1902) AC 109 (X). In this case it was held that where actual war is raging acts done by the military authorities are not justiciable by the ordinary tribunals. Martial law had been proclaimed in the area in question and war was also raging actually. In this case army authorities were not in charge of the administration. Certain offences were triable no doubt by military authorities but this circumstance does not bring the case within the scope of--'Marais' case' (X). We are, therefore, not satisfied that in this case there was such necessity for occupation in the exercise of the sovereign power of the Government that the act of occupation may be placed outside the jurisdiction of the civil Courts. On the contrary we think that the circumstances were such that requisitioning of the property under the Defence of India Rules was the obvious course. The defence that occupation in the circumstances of this case was such an act in the exercise of sovereign powers, that the Government is not answerable for it in the municipal Courts of the country, is not available. The Government cannot escape responsibility for compensating the plaintiffs for loss or damages sustained by them by reason of the occupation of the fishery. It is not stated that any Act of Indemnity has been passed.
60. Assuming that occupation was possible in the exercise of the sovereign powers of the State by reason of the fact that the Government was involved in a war it was still bound to requisition the property under the Defence of India Rules as the emergency was no greater than that contemplated by the Defence of India Act. The learned counsel for the plaintiffs respondents who has put forward this proposition derives support for it from -- 'De Keyser's case (Attorney General v. De Keyser's Royal Hotel)', (1920) A C 508 (Y). In this case the Attorney General raised the contention that where the Crown had prerogative to do a certain act and had also the statutory power to do it, it could exercise either the statutory power or the prerogative at its option. In his judgment in the case Lord Atkinson quoted with approval at p. 538 the words of Swinten Eady M. R. in the Court of appeal:
'Those powers which the executive exercises without Parliamentary authority are comprised under the comprehensive term of the prerogative. Where, however, Parliament has intervened and has provided by statute for powers, previously within the prerogative, being exercised in a particular manner and subject to the limitations and provisions contained in the statute, they can only be so exercised. Otherwise, what use would there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative?'
All the judgments of the law Lords in this case seem to agree substantially with this view though as to what happened to the prerogative while the statutory power was in existence was described differently. According to Lord Atkinson a statute would abridge the Royal prerogative. Lord Dunedin thought that the prerogative would be curtailed. Lord Sumner' thought that the prerogative was superseded. Lord Moulton expressed the view that the exercise of prerogative became unnecessary. Lord Parmoor thought that where the matter had been directly regulated by statute, there is a necessary implication that the statutory regulation must be obeyed. All agreed that the claim for compensation in these circumstances could not be negatived. That would have introduced discrimination. It is contended on the strength of this authority that even if the act in question was possible in the exercise of the sovereign power of the State that sovereign power stood suspended while the Defence of India Act and the Rules framed thereunder remained in force and requisitioning of the property on the conditions laid in the Defence Laws was obligatory. Occupation by troops in these circumstances amounted to an act of trespass, for which there was no escape from responsibility to compensate the plaintiffs.
61. We have already come to the conclusion that the circumstances in this case attracted the application of the Defence of India Rules. There was no difficulty in requisitioning the property under the Defence of India Rules. Its occupation without recourse to the Defence of India Rules could not be justified as an act of State in the exercise of its sovereign powers. In these circumstances the conclusion we have arrived at is that occupation amounted to an act of trespass and that plaintiffs were entitled to compensation for any damage or loss that they may have suffered. Substantially the same result would be achieved if the rule laid down in--'De Keyser's case' (Y) is followed. When a Government assumes special powers because of the State of emergency and agrees to certain conditions under which those powers would be exercised, there would be no justification for pleading exemption from liability on the ground that the act though possible under the emergency, legislation could also be done in the exercise of sovereign powers. It may easily lead to a discrimination that would be indefensible. Some subjects of the States may be dealt with under the emergency laws. They would be entitled to compensation. Others who suffer wrongs against their person or property and are not so dealt with may have claims against which immunity may be claimed on the ground that they were acts in the exercise of sovereign power. Where, therefore, the situation is such that an act could be done both under the emergency laws and also in the exercise of the sovereign powers of the State, it should be done in the manner provided by the statute, which though temporary in duration, becomes part of the municipal law of the land. If Government takes over property without requisitioning it as provided in the law made by itself, the subject cannot be deprived of his right to claim compensation in Courts of law on the ground that the impugned Act is an act of State.
62. The bulk of the claim, however, is on account of the fish having escaped or having been destroyed. The plaintiffs' case is that the third party of troops removed the bans (barriers) placed at the outlets of the fish nursery and the nursery tanks, and as a result of the removal of the bans, the fish in the fish nursery and the nursery tanks escaped into the Ailajan and Namdang rivers and the adjoining submerged areas. Small bombs thrown into the nursery and nursery tanks created a scare and added to the natural desire of the fish to escape when they found the barriers removed. The excavation of the embankments and the lowering of the walls gave added facilities to the fish for escape during the monsoon when the level of the water was very high. The bombs thrown into the nurseries killed a substantial number of fish. The loss under this head is estimated at Rs. 76,000/-,--Rs. 75,000/-on account of loss of fish from the fish nursery and Rs. 1,000/- on account of loss from the nursery tanks. The learned Additional Judge has not allowed any compensation for the loss of fish from the nursery tanks. We are, therefore, concerned only with the loss of fish from the fish nursery in the jamunas.
63. It is contended on behalf of the appellant that the claim under this head has not been substantiated; and the alleged loss has not been proved. The claim is also inadmissible in law as the appellant could not be held responsible even if the loss of fish was caused as alleged. (After discussing evidence His Lordship came to the conclusion that the claim had not been substantiated and proceeded further:)
64. Assuming that some fish-escaped or was destroyed, as alleged, the appellant could not be held responsible for the loss so caused. The reason is obvious. While occupation of the fishery by the army was for the purposes of efficient and successful prosecution of the war, the acts by which the fish is alleged to have been lost were mere wanton acts of waste by the troops. For such acts of its servants, the State incurs no liability. The State admittedly is not liable for all torts of its servants. It enjoys immunity from liability for the torts of its servants unless the torts take the form of trespass on the property of a subject or are such that they are covered by any of the exceptions stated above, assuming that they are not acts of State in the real sense of the term. In this case, the removal of barriers and throwing of bombs in the water were acts wholly unconnected with the act of occupation. They were not the direct or the probable and the proximate results of it. If 'bans' were removed and the material burnt, or the fish was destroyed, the State can justifiably decline responsibility. These acts were not authorised by the State; they were not done under the sanction of any municipal law, nor has the State benefited from them.
The alleged loss of fish by reason of the removal of barriers or by the throwing of small bombs, is not covered by any of the exceptions to the general rule which confers immunity on the State for the torts of its servants. It has been argued that the material of the barriers was used as fuel and the State derived some benefit from it. Benefit, if received by the State, may create liability for restitution, but here the material taken is alleged to have been used as fuel. The State could not possibly derive any benefit from it. It supplies all the needs of the troops in the matter of fuel, etc. If they utilised bamboo material for fuel for additional convenience or facility for themselves, the persons responsible for these acts of vandalism would alone be responsible, For such acts the State cannot be held liable. The loss of material including damage to the nets has been estimated at Rs. 500/-. The claim by reason of the loss of fish is estimated at Rs. 75,000/-. Any possible gain to Government which may be measured by the price of the material alleged to have been used as fuel, bears no reasonable proportion to the loss that the plaintiffs are alleged to have suffered. In any case, the loss of fish to the plaintiffs was not the gain of the State.
65. Plaintiffs have also failed to establish that they suffered loss on account of escape or destruction of fish to the extent claimed or decreed by the Court below. (Then after further discussing evidence His Lordship held:) Compensation decreed for the loss of fish cannot be allowed. We have found that -the occupation by the British and Indian troops was for the purpose of war. It has been found that this could not be regarded as an act in the exercise of sovereign power for which the appellant may claim absolute immunity. The act also was not under the Municipal law under which the requisition of the property was possible. It was, in fact, in defiance of its provisions. Strictly speaking, it could justifiably be described as an act of trespass committed by the troops when they occupied the western and the northern banks of the fishery.
66. As a general rule, the State is not liable for the torts of its servants or employees. But the immunity under the Government of India Act of 1935 is subject to the exceptions stated above. One of the exceptions is that where the immunity cannot be claimed by reason of the fact that the act is j in the exercise of sovereign power in times of emergency, the State could be sued for damages, for trespass committed by its servants. Where trespass is for purposes of the Government and is not disowned, there can be no doubt about the liability of the Government for damages. If such trespass is accompanied by damage to property taken for use and occupation, there can be no escape from liability for damage done to property also, for such damage would be the direct result of occupation. Further if occupation in this case interfered with the fishing operation, it would also be a direct and proximate result of the act of trespass. The plaintiffs may justifiably claim compensation for loss caused to them under this head.
67. As regards damage to the property, the estimate of damage made by Mr. Borgohain, S. D. C., and agreed to by the learned Additional District Judge, may be accepted. The details of this damage have not been brought out In evidence. There are only vague statements about damage having been done to immoveable property. We have merely the estimate of Mr. Borgohain to go on. Since no attempt has been made to show that the estimate made on the spot immediately after the occupation was wrong, it may be accepted. The damage has been estimated at Rs. 1,500/-. As regards interference with the fishing operations of the season, Mr. Borgohain has recommended that the lease money for the year (Rs. 4000) be remitted. Plaintiffs claim Rs. 1000/- by way of damages for interference with their fishing operations in the eastern jamuna alone for a period of two months. The interference, if any, so far as the British and Indian sections of the troops are concerned, commenced sometime in the beginning of May and continued till the end of July. When the British and Indian sections of the troops arrived, the season had far advanced. According to P.W. 4, the fishing operations start from Bhadra and continue till Chaitra or Boheg. The season, according to this witness, would come to an end with the month of Bohag (Baisakh). Here the occupation and interference is alleged to have commenced about the time when the season was nearly ever. Still there must have been interference with the normal working of the fishery.
Interruption in its smooth working could not have been avoided altogether. The difficulties in the way of the plaintiffs were pointed out by Mr. Borgohain in his report made in the month of May. In his last report he proposed a total remission of the revenue for the season in question. The lease money payable to the Government for the year is Rs. 4000/-. It has, we are informed, already been paid. This roughly represents the measure of damages according to the assessment made by Mr. Borgohain. The estimate is from the nature of things of a somewhat arbitrary character. But this probably could not have been helped. A more accurate estimate at this distance of time may be almost impossible. No effort has been made to show that that is wrong or that there was absolutely no interference with the working of the fishery, or that the plaintiffs suffered no loss at all. In the written statement it was pleaded that the occupation caused the minimum inconvenience. It has not been stated that it made no difference whatever to the business of the fishery. However judging by this claim the plaintiffs made for interference with the operations by the American soldiers, the error in the estimate, if any, would be on the side of generosity to the plaintiffs.
By his recommendations, Mr. Borgohain accepted the claim as put forward by the plaintiffs in June 1944. The claim was later on magnified out of all proportion to the realities of the situation though when it came up for investigation, no attempt was made to support that part of the claim which was put forward for the first time in the petition of October 1944. Plaintiffs-respondents, in our opinion, are not entitled to anything more than Rs. 4,000/- for occupation and interference with the business of the fishery caused by the occupation of parts of the fishery by the troops. The two sums, viz., of Rs.1,500/- and Rs. 4,000/- to which plaintiffs have been found entitled do not include any compensation for the damage to nets and the use of barriers and other bamboo materials as fuel.
We do not think plaintiffs are entitled to any compensation for use of barriers or bamboo material as fuel and there is no evidence on the record to show the extent of damage to the nets. No attempt has been made to show that there was any substantial damage in regard to this item of the property. It is not in these circumstances possible to allow any compensation for damage to the nets. The damage in this respect could not have been anything but trivial and may be regarded as covered by the items of claim to which plaintiffs have been found entitled. The result of our findings is that plaintiffs-respondents are entitled to a decree for a sum of Rs. 5,500/- only. The appeal, therefore, is partially allowed. The decretal amount is reduced to a sum of Rs. 5,500/-. The decree in plaintiffs favour shall be modified to this extent. They shall have costs on the sum of Rs. 5,500/- in trial Court. Parties shall bear their own costs in this Court.
68. I agree.