1. This is an appeal by Matte from the judgment and decree against it passed by the Additional District Judge. Indore, in favour of the heirs and dependants of one Lala Ramchandra who was killed by a shot alleged to have been fired by the police while controlling a riot on the 21st July, 1954. The trial Court has decreed Rs. 5,000 out of a claim of about Rs. 1,00.000, Rs 4,000 out of which is attributable to the accident having rendered fee Lala's car unsaleable to others and unusable by the owners, and Its. 1.000 to fee loss of the said Lala's guidance to one of his grandsons (plaintiff No. 4 Satyapal) whom the former was guiding in the day-to-day conduct of a business in the sale of spare parts.
2. The central question for decision is whether on the assumption that the police officers entrusted with the quelling of the riots had actually fired the shot that killed the Lala, it was not a sovereign function of the State which they were exercising for which even on the basis of a tort there was no legal liability to pay damage? or compensation. The case law on this point is clear and fairly extensive and will be set out. Secondly, if the present case has features which distinguish it from those in which the majority in the Federal Court. AIR 1944 FC 41. Maharani Gurucharan Kaur of Nabha v. State of Madras, and the Supreme Court, AIR 1962 SC 93S. State of Rajas than v Mst Vulhvawati; and AIR 1965 SC 1039, Kasturi Lal Ralia Ram v. State of Uttar Pradesh, have held that in our country even if the Government or its delegates commit tort while exercising their sovereign functions the victim has no legal remedy.
Thirdly, even if the Government is liable in the special circumstances of the case, whether me quantum granted is really fair and proper, especially in regard to the car in which only one bullet hole had been made and which did not in any material manner affect its material value and utility, or whether its becoming unusable for sentimental reasons and associations could be a factor to be taken into account. Finally if the plaintiffs were to be compensated by a decree for cost of the car whether the vehicle itself should have been given to them.
3. Except for certain details on which the State did not join issue the story is common ground There was what was called a 'students agitation' at Indore in 1954 which took the grave turn of general lawlessness and damage to public and private property sometime on the forenoon of the 21st July. 1964. The centre of the disturbances' was the locality in front off the Secretariat as it used to be. the old High Court building--both on the same side of the main road--and on the other, the M. T. Hospital. The topographical picture can be conveniently completed by noting that immediately to the south of this locality there it an over bridge over the railway and about 200 to 300 yards beyond a road circle in front of the Regal Cinema Theatre where the ground level road from the Samyogitaganj locality joins the main road. Four to five hundred yards further south is the house of one Saigal which is mentioned by the plaintiffs as being more or less in front of their own house. Anyway, the stand of the plaintiffs is on the statement of the District Magistrate who ordered the firing and wanted it to be confined to the side of the old Secretarial and the old High Court side of the bridge and not to be on the side of the Regal Theatre The firing had. stopped, officially at any rate, on the orders of the District Magistrate at about 12-56.
4. In the meantime Lala Ramchandra--an old trader with a business in the Siyaganj locality was coming home in his car. The plaintiffs are his heirs. No 1 being his widow, Nos. 2 and 3 his sons and No. 4 his grandson--being the son of No. 2 The Lala was on that morning actually at his shop and when he heard of the disturbance on the Tukogan Road only a few hundred yards from the Siyaganj he asked the grandson to close the shop and come home. They motored along and having passed the Regal Theatre were nearing their house when the grandson (P.W 4) save he noted a police van coming from behind from which shots were being fired at persons on the road One of the shots bored through the body of the car from behind and hit the old Lala on his back as a result of which he died Naturally the police took charge of the corpse and would not let the relations dispose it of with the usual rites till after the post mortem examination which was completed only on the next day.
The plaintiffs brought the guit on the sverment that the shooting was uncalled for and illegal and was in fad well beyond the lines imposed by the District Magistrate's order. They claimed damages the particulars of which are the following Rs. 50,000 for the mental shock: Rs. 20,000 For the loss of reputation because it got abroad that the old Lala who was a perfectly peaceful and inoffensive citiizen had been shot during a riot; Rs. 18,000 for the loss of business and Rs. 10,000 far the price of the car. not because the vehicle had been rendered materially useless, but because for the sentimental associations the family members would not use it and outsiders would not purchase it; and a small sum of Rs. 2,000 for medical aid to the widow.
5. About the actual modus operandi so issue was joined and pertain of the details were necessarily vague A car moving at 20 or 36 miles an hour should have taken harder 50 or 60 seconds to go from Regal Road Circle to Saigal's house . All that can be said definitely is that the shot was received when the ear was between the two points. Any shot fired from the railway overbridge could easily hit car in front of the Regal Theatre which is less than 200 to 306 yards away and if the ear is driven bv somebody other than the victim H would take some fraction of a minute before its actual consequences are remarked. The trial Court found in principde that this shooting was by the police and was unjustified and in excess of the District Magistrate's order. it further held that in these circumstances the State was liable for the tort.
6. On this basis it began to assess the quantum of damages payable and after eliminating several of the headings awarded Rupees 4,000 which on its assessment was the price of the car which was already four years old 11 has not found that this amount was necessary for the repair of the vehicle but proceeded on the assumption that for the reasons given bv the plaintiff's witnesses it had become unusable and unsaleable Possibly by an oversight it did not call upon the plaintiffs to deliver the car to the defendant. A sum of Rs. 1,000 was further awarded because the Court found that the deceased was giving personal guidance to his grandson in the conduct of the business and that of course the latter had lost.
7. The Slate has come up in appeal while the plaintiffs have not filed any cross objection. In this Court the argument has for the most part been concentrated on the issue of the liability of the Slate and very little emphasis has been placed on the assessment of the quantum.
Ground No. 1-
8. The central question as to the liability of Government for torts of this class committed by the servants who are deemed to be exercising the Government's sovereign powers by delegation has been already answered by our Courts in a series of judgments. The earliest judgment in our country in which this question was raised and answered is (1868-69) 5 Bom H C App 1, Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India in Council The principle enunciated in it is the same as had been recognized in England all through the ages till varied recently by Parliamentary legislation:
'There is a great and clear distinction between acts done in the exercise of what are usally termed 'sovereign powers' and acts done in the conduct of undertakings which might be carried on by private individuate without having such powers delegated to them. When an act is done in the exercise of powers usually called 'sovereign powers' by which we mean powers which cannot be lawfully exercised except by sovereign or private individuals delegated by a sovereign to exercise them no action will lie.'
This principle has been followed for nearly a full century without any single variation in detail and has been reiterated is the recent Supreme Court judgment in AIR 1966 SC 1039 (supra). Incidentally, in this judgment the Supreme Court has given a complete resume of the case law on this subject. That Court has also pointed out that while in England- the birth place of tfee principle of immunity of the Crown in tort recent legislation has made considerable modifications, we are still without any Parliamentary legislation narrowing the doctrine of immunity of the State while it exercises sovereign powers. But the law has to be applied as it stands. Somewhat earlier landmarks in the growth of case law OR this subject are tfee Maharani of Nabha case, AIR 1944 FC 41 (supra) and AIR 1962 SC 935 (supra). These judgments especially those of the Supreme Court are so complete and clear that it is unnecessary for as to cite any passages and try to discuss them.
9. ALL that has to be done when it is sought to sue the State for tort committed by any of its servants is to examine, firstly, whether the servant has been acting or purporting to act in exercise of powers delegated to him. We are certain that the immunity, if any from action in a Court of law arises not only in regard to acts done while functioning within the strict letter of the delegation but also while purporting to do so; this we shall explain presently Secondly to see whether or not these acts have been done in the exercise of sovereign power of the State. The simplest tea is to consider whether these functions could be discharged by any private citizen or association. For example, when the State mas a transport service or a telephone exchange or a mining or commercial company it functions in a sphere in which it is quite conceivable that private individual or a company can function. So it is not the exercise of sovereign power
Where, on the other hand, it runs a defence service or controls a riot, or investigates crimes, or levies taxes we have functions which a State alone can discharge and not any private individual or body. Sometimes Courts and test-boot writers use the words 'acts of State' to describe such functions. But that is loose usage, these words in their strict connotation applying to steps taken by a State when dealing with foreigners. A good deal of it came up for consideration when transactions between the erstwhile Indian States before 1947 and parties who were not at that time their citizens were examined But in cases of the present class 'Acts of State' proper do not come up for consideration. Accordingly nothing more about them need be said for our purposes.
Thirdly, if the breach or tort has been committed white purporting to exercise such functions there is no remedy in the law Courts for the aggrieved person. The question is not whether this state of affairs is desirable but it is whether this is the law of this country as things now stand or whether there is any law in force here corresponding to the Crown Proceedings Act in England. All this has been set out by the Supreme Court in its judgments and is to the effect that there can be no action.
Groud No. 2 -
10. The position of the plaintiff is that there are certain special features in this case which take it out of the ambit of the rulings cited above The only circumstance on account of which it is sought to distinguish the instant ease from those covered by the rulings is that the police officers had no can to shoot southwards beyond the railway overbridge and had been ordered by the District Magistrate to restrict the shooting to just the opposite direction. Another variant of this is that the hooting had been officially called off at 12-55. and the plaintiffs assert that the Lala was shot sometime later though there is a natural vagueness as to how much later this shooting, was. Since he had been shot while a few hundred yards on the other side of the bridge it is asserted that the Government servants who had done this were exceeding their orders and were not acting in discharge of duty.
As already noted, the picture of the shooting of Lala Ramchandra is Hot complete m matters of detail; but it is broadly speaking a clear one namely, that while he was going away in his car towards the south from the Regal Cinema crossing a shot came from behind, bored through the body of the car and entered his back Another refinement is that this was from a police car chasing part of the crowd. It if equally likely that it was shot from somewhere on the bridge in that direction and came not from the police car but from some other policemen standing on the bridge. Be that as it may, the Lala was shot by a police officer who was purporting to disperse the mob but who was in that particular exceeding the directions of the District Magisrate who had ordered the shooting Assuming all this it is still difficult to see how this case is distinguishable from the rulings cited above.
Wherever Government is sought to be made liable for acts done by it there is invariably an element of irregularity, excess or misuse of power The law and the rules of the departments, if strictly followed, will not lead to any tort and whenever there is a tort there is always an element of irregularity or excess. This question was examined in the Nabha case, AIR 1944 FC 41, which is the subject-matter of the federal Court judgment (majority view) and it was held that the test is not whether the authority to whom the sovereign powers are delegated is exorcising them within the letter of the law, rule or instruction, but whether he is purporting to do so. Otherwise the entire principle of immunity would become shadowy. There was no direction to the Sub-Inspector in that case to stop the movements of the Maharani and her daughter and in doing that he was certainly exceeding the direction to slop only those of the Maharaja.
Similarly in AIR 1965 SC 1039 (supra), the Moharir of the malkhana who rolled up the gold exhibits and ran away to Pakistan was not performing any official duty but was doing something altogether outside the role officially assigned to him. Still in these cases the doctrine of immunity for acts done in exercise of sovereign powers was applied. Thus there is no feature in this case that can render those rulings inapplicable.
Ground No. 3-
11. In view of what has been said above it is not of any practical consequence whether or not the quantum of damages granted by the lower Court is proper However. It is convenient to touch upon it because that Court seems to have had some misapprehension If the motor vehicle had been damaged and the claim was justiciable then compensation should be granted to the extent of the damage, the usual formula being the expenses the owner would have had to incur in restoring it to the original condition. It is theoretically conceivable that the vehicle had been damaged completely in which event of course the compensation would be equal to its market value at the time of the incident. In the instant case all the physical damage the Lala's motor car suffered was the piercing of the body by a bullet, let us say a hole half-an-inch or so bored through the metal wall.
It is not in evidence that any other part of the car was damaged or that its machinery was rendered unusable or inefficient. It would take a trifle to weld or solder up the pierced portion. In fact the damages claimed were not on the basis of the actual damage done to the machinery or the repair costs but on what might be called 'sentimental reasons' The plaintiffs would nut care to use the car because of the unpleasant associations; this is of course understandable It is further urged that nobody at Indore would buy it though it was in a good condition because it was a car in which the passenger had been killed. Thus either way the plaintiffs urged that the car is of no value to them and demanded Rs. 10,000 which they put as its price.
The Court found that it had been used for some years and that its price at the time of the mishap was Rs. 4,000. Accordingly it granted this amount as damages under fee heading and left the vehicle with the plaintiffs. The whole thing is obviously illogical. For one thing, in assessing damages remote unsentimental considerations cannot be taken into account Even if the car was unsaleable at Indore on account of sentimental associations there is nothing to show that it was unsaleable elsewhere in India. The most that could be charged on this account is the expenses the owners or their agents might have had to incur for taking it away from Indore. Otherwise the damages should have been restricted to the actual cost of repairs. Yet another fallacy is that having granted as compensation the full price of the vehicle the Court is presenting the vehicle itself to the plaintiffs. Thus had we decided that the Government was in principle liable for the tortious acts of the servants entrusted with the quelling of the riot we would have reduced the damages very drastically.
Ground No. 4-
12. A sum of Rs. 1,009 had been awarded as compensation because the death of the Lala is supposed to have deprived the plaintiff No. 4--his grandson of his advice and guidance in the conduct of a business. Actuary plaintiff No 4 is a grown up nan who has been doing business for some time. In fact the trial Court finds that he had already acquired sufficient experience and by implication could not have suffered by the deprivation of the old man's guidance. Still a sum of Rs. 1.000 has been awarded in this connection.
IN fact the discussion under Issue No. 3 in paragraph 11 of the judgment shows that the Court had discussed two different problems jointly, the first about the help that the old Lala was giving to plaintiff No. 4 and the second, the direct loss to the business which the plaintiffs had originally put at Rs. 10,000 caused by the death. What has been said above disposes of the first part of the discussion : as for the second. the trial Court itself finds that 'in the absence of the appropriate materials nobody can definitely say how much the business lost in terms of money by the old man's death. Thus even under that heading the award of Rs 1,000 damages would not have been appropriate Here again even if Government were liable this sum of Rs. 1,000 could not have been awarded.
13. The result of the foregoing discussion is that the appeal of the State is allowed and the judgment and decree of the trial Court set aside The entire suit stands dismissed. In view, however of the special nature of this case there will be no order as to costs in this Court As for the lower Court also the parties shall bear their own costs.