East India Company as Sovereign Power, Part Four

East India Company as Sovereign Power, Part 4

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shahzadi

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As seen above this case was decided in 1949. But when the Constitution of India was enacted in 1950 there again was reversion to the old state of law under the East India Company. Article 300 of that Constitution lays down inter alia that:

“The Government of India may sue or be sued and the Government of a State may sue or be sued in the like cases as the Dominion of India and the corresponding Provinces might have sued or been sued if this Constitution had not been enacted.”

Another article of that Constitution continues in force the `Existing Law’, which includes case law. (See A I R 1964 Cal. 396, para. 15)

The position under the Indian Constitution was lucidly laid in 1954 by a Division Bench of the Patna High Court as follows:

” as regards liability to be sued the Secretary of State for India was and the present Government of India is in no way different from the old East India Company before the passing of the Government of India Act, 1958, and even now a plaintiff who comes forward with a suit of the nature which has been instituted . . . has to show that he had a cause of action against the East India Company if the case had arisen before 1858; and on the decisions there does not also seem to be any doubt that the Government of India cannot be held liable for wrongs committed by its servants while they were performing a statutory duty.” (A I R 1954 Pat. 529 at 539).

In A I R 1965 Andhra Pradesh 457, a Tahsildar in the discharge of the duties imposed on him under the Statute, viz., the Madras Revenue Recovery Act, for non‑payment of tax by the plaintiff effected the attachment of latter’s immovable property in an illegal manner inasmuch as be followed the procedure laid for attachment of movable property, by which the plaintiff suffered great pecuniary loss. The learned counsel for the plaintiff-appellant urged that the immunity of the Government for torts committed by its servants in the exercise of sovereign powers must be confined only to the acts of State. The contention was repelled in view of the long catena of decisions from which the following principle was drawn out by the learned Judges:

“The Government cannot be sued in respect of acts done by its servants in the exercise of its `sovereign powers’ or `Sovereign Acts’, e.g., the maintenance of a military road, or a national highway, or a hospital out of State revenue, as they are all acts done in the discharge of sovereign or Governmental functions. In the case of “Acts of State”, i.e., acts done by a Government servant under the authority of the Government, with respect to a non‑resident foreigner, and which are Hot justiciable in the ordinary Courts of law also, the Government would not be liable, e.g., making of war or treaty, annexation of, property belonging to an enemy country or national. That is not because the act is one committed by the public servant in the exercise of sovereign powers, but because it is in respect of a non‑resident foreigner who cannot invoke the jurisdiction of the Courts of this country and for an act which is not justifiable in the municipal Courts.