Dr. Tabrez Ahmad Tort Lectures

100 %
0 %
Information about Dr. Tabrez Ahmad Tort Lectures
Education

Published on March 20, 2009

Author: guest8329fca8

Source: slideshare.net

Description

These are the slides of the lectures delivered by Dr. Tabrez Ahmad, Associate Professor of Law , Expert in Cyberlaw and Intellectual Property Law.

Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, INDIA

COURSE DESCRIPTION Law has to protect the rights of persons in society. Law does it primarily in two ways: by compensating for the wrong suffered, and by punishing the wrong-doer. The compensation function is the business of tort law (and partly of contract law) whereas punishment is the domain of criminal law. By the process of identifying wrongs and compensating them through the award of damages, tort law attempts to allocate losses or distributive risks which are inevitable in the modern society in a manner conducive to justice, equity and fairness. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Law has to protect the rights of persons in society. Law does it primarily in two ways: by compensating for the wrong suffered, and by punishing the wrong-doer. The compensation function is the business of tort law (and partly of contract law) whereas punishment is the domain of criminal law. By the process of identifying wrongs and compensating them through the award of damages, tort law attempts to allocate losses or distributive risks which are inevitable in the modern society in a manner conducive to justice, equity and fairness.

Cont… Independent of criminal or contract law, Tort law provides individuals and groups with redress for injury to every dimension of life from physical injury, to property damage, to personal insult. Over past decades no area of law within the civil justice system has experienced greater ferment than the law of Tort and this has resulted in vital changes the thinking of the tortuous liability. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Independent of criminal or contract law, Tort law provides individuals and groups with redress for injury to every dimension of life from physical injury, to property damage, to personal insult. Over past decades no area of law within the civil justice system has experienced greater ferment than the law of Tort and this has resulted in vital changes the thinking of the tortuous liability.

Cont… The more industrialized the society the more complicated the life. In such a situation, this branch of law grows and assumes greater importance in ordering just social relations. It is rightly said that the progress of a nation can be measured in terms of development of law of tort in that country. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

The more industrialized the society the more complicated the life. In such a situation, this branch of law grows and assumes greater importance in ordering just social relations. It is rightly said that the progress of a nation can be measured in terms of development of law of tort in that country.

OBJECT OF THE COURSE The object of the course is to familiarize the students with the nature and extent of liability of the private enterprises, multinationals and the government authorities for the wrongs committed against the individual and their property, and to develop sound knowledge, skills and disposition amongst students of B.A. LL.B on some of the contemporary issues of Specific Torts, Cyber Tort, Family Tort, and Economic Tort etc. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

The object of the course is to familiarize the students with the nature and extent of liability of the private enterprises, multinationals and the government authorities for the wrongs committed against the individual and their property, and to develop sound knowledge, skills and disposition amongst students of B.A. LL.B on some of the contemporary issues of Specific Torts, Cyber Tort, Family Tort, and Economic Tort etc.

Cont… In the course on Law of Tort, we intend to familiarize you with the general principles of Tort law and general defences, specific Torts, emerging areas in Law of Tort. Students will be encouraged to develop their own views on these and other pressing questions, and they will acquire the sound legal skills to argue for both sides of a case. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

In the course on Law of Tort, we intend to familiarize you with the general principles of Tort law and general defences, specific Torts, emerging areas in Law of Tort.

Students will be encouraged to develop their own views on these and other pressing questions, and they will acquire the sound legal skills to argue for both sides of a case.

LEARNING OBJECTIVES The main objectives of the course are to impart an insight into a comprehensive understanding of the law of tort so as to enable the students in analyzing legal problems, offering apt solutions and advancing reasoned arguments towards the intricacies involved therein. The course examines the law of tort in its entire convolution. The study will be purely on the case study basis. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

The main objectives of the course are to impart an insight into a comprehensive understanding of the law of tort so as to enable the students in analyzing legal problems, offering apt solutions and advancing reasoned arguments towards the intricacies involved therein.

The course examines the law of tort in its entire convolution. The study will be purely on the case study basis.

Cont… On completing the course, students will be acquainted with the fundamental principles of tortuous liability, both statutory and common-law and the main defenses and remedies available to parties to a claim in tort. Students will have an understanding of the varieties of tort and of the legal interests that these seek to protect. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

On completing the course, students will be acquainted with the fundamental principles of tortuous liability, both statutory and common-law and the main defenses and remedies available to parties to a claim in tort. Students will have an understanding of the varieties of tort and of the legal interests that these seek to protect.

Cont… The course will provide the study of nature and basis of tort law, principles of liability, general defenses in tort actions, and remedies in tort. Certain specific torts committed against the body as well as the property of a person. Legal issues relating to cyber tort will also be analyzed in required details. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

The course will provide the study of nature and basis of tort law, principles of liability, general defenses in tort actions, and remedies in tort. Certain specific torts committed against the body as well as the property of a person. Legal issues relating to cyber tort will also be analyzed in required details.

COURSE SUMMARY The topics for this course are divided into seven units UNIT I : - Definition and Nature of the Law of Tort UNIT II : - Liability for the Wrong Committed by Other Person . UNIT III : - Negligence, Contributory Negligence and Nuisance UNIT IV : - General Defenses for the Tortuous Liability UNIT V : - Torts Against Human Being and Property UNIT VI : - Liabilities based on fault: No fault Liability, Strict Liability and Absolute Liability UNIT VII :- Emerging areas of Tort: Cyber Tort Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

UNIT I : - Definition and Nature of the Law of Tort

UNIT II : - Liability for the Wrong Committed by Other

Person

. UNIT III : - Negligence, Contributory Negligence and

Nuisance

UNIT IV : - General Defenses for the Tortuous Liability

UNIT V : - Torts Against Human Being and Property

UNIT VI : - Liabilities based on fault: No fault Liability,

Strict Liability and Absolute Liability

UNIT VII :- Emerging areas of Tort: Cyber Tort

TEACHING METHODOLOGY Law of Tort will be taught by a combination of lectures and consultation with the teacher. Being a branch of law essentially made of judicial decisions, this course will be taught through case method modified to suit the needs of beginners in legal study and will have four hours of lectures and one hour of consultation in a week. Participation in class discussion after prior reading of cases is the primary mode of teaching/learning. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Law of Tort will be taught by a combination of lectures and consultation with the teacher. Being a branch of law essentially made of judicial decisions, this course will be taught through case method modified to suit the needs of beginners in legal study and will have four hours of lectures and one hour of consultation in a week. Participation in class discussion after prior reading of cases is the primary mode of teaching/learning.

ASSESSMENT The performance of the students on this course is assessed on the basis of 100 marks. The over all assessment of 100 marks is divided into sessional work (40 marks) and end semester examinations (60 marks). Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

The performance of the students on this course is assessed on the basis of 100 marks. The over all assessment of 100 marks is divided into sessional work (40 marks) and end semester examinations (60 marks).

Sessional Work (40 Marks) Attendance/Class Participation : 5 Marks Project writing : 25 Marks Snap Tests : 10 Marks Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Attendance/Class Participation : 5 Marks Project writing : 25 Marks

Snap Tests : 10 Marks

End Semester Examination (60 Marks) Written closed Book examination of 60 Marks will be conducted at the end of the semester. The majority of the questions will be problem based. This is to check the in-depth knowledge and analytical & lawyering skills of the students in the subject. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Written closed Book examination of 60 Marks will be conducted at the end of the semester. The majority of the questions will be problem based. This is to check the in-depth knowledge and analytical & lawyering skills of the students in the subject.

EXPECTATIONS What is expected of you? Prior reading of the proposed lecture. Attend all the lectures. Read the core readings for each lecture. Participate and contribute in class discussion. Use the Recommended readings in order to develop good grasp of the topics in this course, answer the questions, and write research Projects. Give at least one presentation on the findings of your project. Study relevant cases, reports and articles from the journals. Discuss at least one decided case. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Prior reading of the proposed lecture.

Attend all the lectures.

Read the core readings for each lecture.

Participate and contribute in class discussion.

Use the Recommended readings in order to develop good grasp of the topics in this course, answer the questions, and write research Projects.

Give at least one presentation on the findings of your project.

Study relevant cases, reports and articles from the journals.

Discuss at least one decided case.

What can you expect of your tutor? . Feedback on your snap tests within a short time. Availability during specified consultation hours to discuss any question or problem you might have during the course. Feedback on project presentations. Guidance and advice on preparation for research Projects and presentations. Feedback and collective evaluation of the class at the completion of the course. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

. Feedback on your snap tests within a short time.

Availability during specified consultation hours to discuss any question or problem you might have during the course.

Feedback on project presentations.

Guidance and advice on preparation for research Projects and presentations.

Feedback and collective evaluation of the class at the completion of the course.

Unit 1:- Definition and Nature of the Law of Tort The objectives of the unit is to introduce the subject to the students and to give them a general conception about the subject by defining and explaining its features and distinguishing it from other legal concepts. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

The objectives of the unit is to introduce the subject to the students and to give them a general conception about the subject by defining and explaining its features and distinguishing it from other legal concepts.

Unit 1 Details Definition, nature and history of the law of torts. “ Law of Tort” or “Law of Torts.” Difference between Tort & Crime, Tort & Contract. Basis of the tortuous liability; Basic legal maxims for Determination of liability; viz Ubi jus Ibi remedium, Injuria Sine Damnum and Damnum Sine Injuria. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Definition, nature and history of the law of torts.

“ Law of Tort” or “Law of Torts.” Difference between Tort & Crime, Tort & Contract.

Basis of the tortuous liability;

Basic legal maxims for Determination of liability; viz Ubi jus Ibi remedium, Injuria Sine Damnum and Damnum Sine Injuria.

Cases Ashby v. White (1703)2 LR 938 Rudal Shah v. State of Bihar, AIR 1983 SC 1086 Saheli v. Commissioner of Police, Delhi AIR 1990 SC 513 Gloucester Grammer School case (14190 V.B. Hill 11. Mayor of Broadford Corporation v. Pickles (1895) AC 587 Bhim Singh v. State of Jammu & Kashmir AIR 1986 SC 494 Usha Ben v. Bhagya Laxmi Chitra Mandir, AIR 1978 Guj. Etc. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Ashby v. White (1703)2 LR 938

Rudal Shah v. State of Bihar, AIR 1983 SC 1086

Saheli v. Commissioner of Police, Delhi AIR 1990 SC 513

Gloucester Grammer School case (14190 V.B. Hill 11.

Mayor of Broadford Corporation v. Pickles (1895) AC 587

Bhim Singh v. State of Jammu & Kashmir AIR 1986 SC 494

Usha Ben v. Bhagya Laxmi Chitra Mandir, AIR 1978 Guj.

Etc.

 

Project allotment Volenti non fit injuria : Contemporary Relevance. 1-5 Family Torts:New Challenges in USA, Britain & India. 6-10 Contributory Negligence: Development and Dilemma- Comparison between Indian and British cases. 11-15. Right to Information and Negligent Misstatement: A Study of Cases Decided by Central Information Commission U/ RTI Act 2005. 16-20 Tort against Community: A Study of Hate Campaign Against Muslims Post 9/11. 21-25 Reforms in India in Relation to Law of Torts after independence: Statutory & Judicial. 26-30 Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Volenti non fit injuria : Contemporary Relevance. 1-5

Family Torts:New Challenges in USA, Britain & India. 6-10

Contributory Negligence: Development and Dilemma-

Comparison between Indian and British cases. 11-15.

Right to Information and Negligent Misstatement: A Study of Cases Decided by Central Information Commission U/ RTI Act 2005. 16-20

Tort against Community: A Study of Hate Campaign Against Muslims Post 9/11. 21-25

Reforms in India in Relation to Law of Torts after

independence: Statutory & Judicial. 26-30

Project Allotment Medical Negligence: Liability of Doctors and Hospitals-A Comparative study of USA and India. 31-35 Donoghue to Daniels: A Critical Study 36-40 Defamation: A Comparison between Tort and Criminal Law. 41-45 Right of Privacy: Constitutional Issues & Judicial Responses in USA and India Particularly in Cyber Age. 46-50 Domestic Violence: Will Law Alone Improve the Situation. 51-55 Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Medical Negligence: Liability of Doctors and Hospitals-A Comparative study of USA and India. 31-35

Donoghue to Daniels: A Critical Study 36-40

Defamation: A Comparison between Tort and Criminal Law. 41-45

Right of Privacy: Constitutional Issues & Judicial Responses in USA and India Particularly in Cyber Age. 46-50

Domestic Violence: Will Law Alone Improve the Situation. 51-55

Project writing Object Stages ( Presentation and final draft) Consultation in groups subject to appointment Presentation in groups Submission of final report in groups Evaluation- 25 Marks: on the overall performance For e.g. active participation from the day of allotment till submission of final reports, quality of presentation, quality of final reports. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Object

Stages ( Presentation and final draft)

Consultation in groups subject to appointment

Presentation in groups

Submission of final report in groups

Evaluation- 25 Marks: on the overall performance

For e.g. active participation from the day of allotment till submission of final reports, quality of presentation, quality of final reports.

Definition and Nature of the Law of Tort

Definition and Characteristics Tort = Latin Term Tortum ( to twist) Conducts which is not straight or lawful, but, on the other hand, twisted, crooked, or unlawful. It is equivalent to the English Term ‘wrong’. Wrongdoer violates some legal rights vested in another person The law imposes a duty to respect the legal rights vested in the members of the society and the person making a breach of that duty is said to have done the wrongful act. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Tort = Latin Term Tortum ( to twist)

Conducts which is not straight or lawful, but, on the other hand, twisted, crooked, or unlawful.

It is equivalent to the English Term ‘wrong’.

Wrongdoer violates some legal rights vested in another person

The law imposes a duty to respect the legal rights vested in the members of the society and the person making a breach of that duty is said to have done the wrongful act.

Cont… The right and duty arise under the general law as between a person or persons in a particular situation It is redressable in a civil action for damages, with alternative remedy in some cases of injunction and recovery of possession at the instance of the person wronged or injured. Tort differs from wrongs which are wholly criminal. At the same time a tort differs from the wrong which are regarded wholly as breaches of contract. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

The right and duty arise under the general law as between a person or persons in a particular situation

It is redressable in a civil action for damages, with alternative remedy in some cases of injunction and recovery of possession at the instance of the person wronged or injured.

Tort differs from wrongs which are wholly criminal. At the same time a tort differs from the wrong which are regarded wholly as breaches of contract.

Winfield Dr. Winfield has made a critical examination of may possible or current definitions and the one suggested by him is as follows: Tortious liability arises from the breach of a duty primarily fixed by the law, such duty is towards persons generally and its breach is redressable by an action for unliquidated damages Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Dr. Winfield has made a critical examination of may possible or current definitions and the one suggested by him is as follows:

Tortious liability arises from the breach of a duty primarily fixed by the law, such duty is towards persons generally and its breach is redressable by an action for unliquidated damages

The Gujara HC Gujarat Electricity Board v Kantilal R Patel (1988) 22 R (Guj) 271 Court observed that the task of law of tort was not only to award compensation but to vindicate rights of the parties and enforce them. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

The Gujara HC Gujarat Electricity Board v Kantilal R Patel (1988) 22 R (Guj) 271

Court observed that the task of law of tort was not only to award compensation but to vindicate rights of the parties and enforce them.

It is difficult to define a tort even in this sense of breach of duty because the term was chosen not to signify any definite legal concept, but rather a convenient title or caption for wrongs for which a particular class of remedies or forms of action was allowed under a judicial system and procedure that are now defunct. Those wrongs are diverse in their legal constituents and can not be comprehended in a simple or concise formula. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

It is difficult to define a tort even in this sense of breach of duty because the term was chosen not to signify any definite legal concept, but rather a convenient title or caption for wrongs for which a particular class of remedies or forms of action was allowed under a judicial system and procedure that are now defunct. Those wrongs are diverse in their legal constituents and can not be comprehended in a simple or concise formula.

In general the law of tort relates to the recognition of interest that the civil law recognises in the absense of contractual relation between the wrongdoer and the injured person. These interests may be grouped into the following categories: Property, physical, psychiatric, economic and reputation. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

In general the law of tort relates to the recognition of interest that the civil law recognises in the absense of contractual relation between the wrongdoer and the injured person. These interests may be grouped into the following categories:

Property, physical, psychiatric, economic and reputation.

Basis of the Tortuous Liability

A Tort comes into existence by Some act or omission by the defendant; Which amounts to a violation of the plaintiffs right; Defendants act or omission is thus a breach of his legal duty imposed on him by law; The violation must not be authorised by law; Such violation inflicts an injury upon the plaintiff; For which a remedy in law is available; The defendants act or omission must not be a breach of his contractual, quasi-contractual or merely equitable obligation ;and It should, also, not be a breach of trust. A tort is different from wrongs wholly criminal Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Some act or omission by the defendant;

Which amounts to a violation of the plaintiffs right;

Defendants act or omission is thus a breach of his legal duty imposed on him by law;

The violation must not be authorised by law;

Such violation inflicts an injury upon the plaintiff;

For which a remedy in law is available;

The defendants act or omission must not be a breach of his contractual, quasi-contractual or merely equitable obligation ;and

It should, also, not be a breach of trust.

A tort is different from wrongs wholly criminal

Basic Ingredients of Tort Jay Laxmi Salt Works Pvt. Ltd. v State of Gujarat (1994) 4 SCC 1. The Basic ingredients of Tort continue to be injury and damage due to failure of duty fixed by law. The law of Torts being a developing law, its frontiers are incapable of being strictly limited. The Indian Law of Tort based on English law is continued by Art. 372 of the constitution which has been interpreted to continue also the principles applied in India. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Jay Laxmi Salt Works Pvt. Ltd. v State of Gujarat (1994) 4 SCC 1.

The Basic ingredients of Tort continue to be injury and damage due to failure of duty fixed by law. The law of Torts being a developing law, its frontiers are incapable of being strictly limited.

The Indian Law of Tort based on English law is continued by Art. 372 of the constitution which has been interpreted to continue also the principles applied in India.

In Re Amina AIR 1992 Bom 214. HC held that Art. 372(1) of the Indian Constitution The expression “ all the law in force” includes not only the enactment of the Indian Legislative but also the common law of the land which was being administered by the courts in India. This includes not only the personal law, viz. the Hindu and Mohammedan Laws, but also the rules of the English common Law e.g., the law of torts as well as customary laws, the rules of interpretation of statutes. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

In Re Amina AIR 1992 Bom 214. HC held that

Art. 372(1) of the Indian Constitution

The expression “ all the law in force” includes not only the enactment of the Indian Legislative but also the common law of the land which was being administered by the courts in India. This includes not only the personal law, viz. the Hindu and Mohammedan Laws, but also the rules of the English common Law e.g., the law of torts as well as customary laws, the rules of interpretation of statutes.

Ubi jus ibi remedium This maxim forms the very foundation of the law of tort. Maxim means: “where there is right, there is remedy” Ashby v White [1703] 2 Lord Raym,938 Rudal Shah v. State of Bihar AIR 1983 SC 1086-Loss of personal liberty Saheli, a Women’s Resources Centre v Commissioner of Police, Delhi AIR 1990 S.C 513- death of a child due to police atrocities. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

This maxim forms the very foundation of the law of tort.

Maxim means: “where there is right, there is remedy”

Ashby v White [1703] 2 Lord Raym,938

Rudal Shah v. State of Bihar AIR 1983 SC 1086-Loss of personal liberty

Saheli, a Women’s Resources Centre v Commissioner of Police, Delhi AIR 1990 S.C 513- death of a child due to police atrocities.

Injuria Sine Damnum Justified Ashby v White [1703] 2 Lord Raym ,938 Municipal Board of Agra v Ashrfi Lal (1921) 44 All 202. Bhim Singh v. State of Jammu & Kashmir AIR 1986 SC 494- Unlawful detention by the police. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Justified

Ashby v White [1703] 2 Lord Raym ,938

Municipal Board of Agra v Ashrfi Lal (1921) 44 All 202.

Bhim Singh v. State of Jammu & Kashmir AIR 1986 SC 494- Unlawful detention by the police.

Damnum Sine Injuria Not justified Gloucester v Grammar School 1410 YB Hill 11 Hen, 4 of 47, p 21, 36 Mayor of Bradford v Pickles [1895] AC 587 ( HL) , the decision of this case was based on Chasemore v. Richards [1859] 7 HL 349. Usha Ben v. Bhagya Laxmi Chitra Mandir, AIR 1978 Guj.- 3 Goddesses were depicted as jealous and ridiculed-injunction was refused. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Not justified

Gloucester v Grammar School 1410 YB Hill 11 Hen, 4 of 47, p 21, 36

Mayor of Bradford v Pickles [1895] AC 587 ( HL) , the decision of this case was based on Chasemore v. Richards [1859] 7 HL 349.

Usha Ben v. Bhagya Laxmi Chitra Mandir, AIR 1978 Guj.- 3 Goddesses were depicted as jealous and ridiculed-injunction was refused.

Malf-feasance, Mis-feasance, and Non-feasance

Malf-feasance, Mis-feasance, and Non-feasance Malfeasance: applies to an act which is actionable per se and does not require to proof of malice or negligence. The act itself is unlawful eg. Tresspass Mis-feasance: Improper performance of something which a person should have done properly. Improper performance of a lawful act. Where a person is guilty of negligence in performing a contract. Act is lawful but the way it is carried out is unlawful The defendant is the author of the source of danger to cause damage to the plaintiffs property by his careless conduct. He know that the act may give rise to tort. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Malfeasance: applies to an act which is actionable per se and does not require to proof of malice or negligence.

The act itself is unlawful eg. Tresspass

Mis-feasance: Improper performance of something which a person should have done properly.

Improper performance of a lawful act.

Where a person is guilty of negligence in performing a contract.

Act is lawful but the way it is carried out is unlawful

The defendant is the author of the source of danger to cause damage to the plaintiffs property by his careless conduct.

He know that the act may give rise to tort.

For e.g. where the contractor of a local body while constructing a road leave heaps of stone on the road side without light, it is an act of mis-feasance. Misfeasor is a person who does the misfeasance. E.g. Common Cause a registered Society v. Union of India AIR 1999 SC 2979 (1999) 6 SCC 667 Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

For e.g. where the contractor of a local body while constructing a road leave heaps of stone on the road side without light, it is an act of mis-feasance.

Misfeasor is a person who does the misfeasance.

E.g. Common Cause a registered Society v. Union of India AIR 1999 SC 2979

(1999) 6 SCC 667

Non-feasance: neglect or failure of a person to do what he ought to, particularly to perform a duty owed to the public whereby an individual sustains special or particular damage to himself Several factors require consideration for giving rise to actionable negligence. Municipal Corp. of Delhi v Sushila Devi AIR 1999 SC 1929 Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Non-feasance: neglect or failure of a person to do what he ought to, particularly to perform a duty owed to the public whereby an individual sustains special or particular damage to himself

Several factors require consideration for giving rise to actionable negligence.

Municipal Corp. of Delhi v Sushila Devi AIR 1999 SC 1929

Liability for the Wrong Committed by Other Person

Liability for wrong committed by other person Ratified or authorized Relation entailing responsibility for wrong- liability by relation Abetted the tortuous act committed by others Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Ratified or authorized

Relation entailing responsibility for wrong- liability by relation

Abetted the tortuous act committed by others

Principle of Direction and control Control test no longer decisive Cassidy v Minister of health 1951 All ER 574 Market Investigation Ltd. V Minister of Social Security (1968) 3 All ER 732 Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Control test no longer decisive

Cassidy v Minister of health 1951 All ER 574

Market Investigation Ltd. V Minister of Social Security (1968) 3 All ER 732

Montreal v Montreal Locomotive Works Ltd. ( 1947) 1 LR 161 Lord Wright held that It would be more appropriate to apply a complex test involving 1. Control 2. Ownership of tools 3. Chance of Profit 4. Risk of Loss Control test is not always conclusive Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Lord Wright held that

It would be more appropriate to apply a complex test involving

1. Control

2. Ownership of tools

3. Chance of Profit

4. Risk of Loss

Control test is not always conclusive

Liability by relation Principle of Vicarious Liability and its basis. Master and Servants, Principle and Agent “ Qui facit per alium facit per se” (The act of an agent is the act of pricipal) State Bank of India v Shyama Dedvi AIR 1978 SC 1263 Partners of a firm State’s Liability: Doctrine of Sovereign Immunity in reference to the Crown Proceedings Act 1947, Federal Torts Claims Act 1946 and Article 300 of the Indian Constitution. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Principle of Vicarious Liability and its basis.

Master and Servants,

Principle and Agent

“ Qui facit per alium facit per se”

(The act of an agent is the act of pricipal)

State Bank of India v Shyama Dedvi AIR 1978 SC 1263

Partners of a firm

State’s Liability: Doctrine of Sovereign Immunity in reference to the Crown Proceedings Act 1947, Federal Torts Claims Act 1946 and Article 300 of the Indian Constitution.

Any Question? Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Any Question?

Cases Lucknow Development Authority v M.K. Gupta AIR 1994 1 SC 243 State of Rajasthan v. Vidyawati Devi AIR 1962 SC 933 Donoghue v. Stevenson, 1932,AC 562 Kasturi Lal v. State of U.P. AIR 1965 SC 1039 Nicholes v. Marshland (1876)2 Ex.D. 1 Smith v. London and South Western Railway Co. (1870) LR 6 Peninsular and Steam Navigation Co. Secretary of State for India (1861) 5 Bom. H.C.R. App. 2 Loyd v. Grame Smith &Co. (1912) AC 716 Brook v. Boole (1928) 2 KB 578 Marryweather v. Nixon (1799) 101 ER 1337.   Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Lucknow Development Authority v M.K. Gupta AIR 1994 1 SC 243

State of Rajasthan v. Vidyawati Devi AIR 1962 SC 933

Donoghue v. Stevenson, 1932,AC 562

Kasturi Lal v. State of U.P. AIR 1965 SC 1039

Nicholes v. Marshland (1876)2 Ex.D. 1

Smith v. London and South Western Railway Co. (1870) LR 6

Peninsular and Steam Navigation Co. Secretary of State for India (1861) 5 Bom. H.C.R. App. 2

Loyd v. Grame Smith &Co. (1912) AC 716

Brook v. Boole (1928) 2 KB 578

Marryweather v. Nixon (1799) 101 ER 1337.

 

Liability of State in Tort

“ Law is the great civilizing machinery. It liberates the desire to build and subdues the desire to destroy. And if war can tear us apart, Law can unite us – out of fear, or love or reason, or all three. Law is the greatest human invention. All the rest, give man mastery over his world. Law gives him mastery over himself”. Lyndon B. Johnson, TIME September 24, 1965 page 48. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

“ Law is the great civilizing machinery. It liberates the desire to build and subdues the desire to destroy. And if war can tear us apart, Law can unite us – out of fear, or love or reason, or all three. Law is the greatest human invention. All the rest, give man mastery over his world. Law gives him mastery over himself”.

Lyndon B. Johnson, TIME September 24, 1965 page 48.

Justice: the end and the means   Justice has been regarded as one of the greatest concerns of mankind on this planet. Edmund Burke said, that justice is itself the “great standing policy of civil society”. Scholars of political science and legal theory tell us, that the administration of justice is one of the primary objects for which society was formed. Our Constitution, in its very preamble, speaks of justice as one of the great values which its makers have cherished. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

 

Justice has been regarded as one of the greatest concerns of mankind on this planet. Edmund Burke said, that justice is itself the “great standing policy of civil society”. Scholars of political science and legal theory tell us, that the administration of justice is one of the primary objects for which society was formed. Our Constitution, in its very preamble, speaks of justice as one of the great values which its makers have cherished.

Unsatisfactory state of the law It follows, that the law that contains the principles that will govern the liability of the State, for torts committed by its agencies, should be just in its substance, reasonably certain in its form and fairly predictable in its working. It traces its source to an archaic provision, which is almost two centuries old. It is found to be suffering from conflicting views, owing to the loose and imprecise criteria that have come to be adopted. It deserves a close second look in the present century, in the larger interests of society. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

It follows, that the law that contains the principles that will govern the liability of the State, for torts committed by its agencies, should be just in its substance, reasonably certain in its form and fairly predictable in its working. It traces its source to an archaic provision, which is almost two centuries old. It is found to be suffering from conflicting views, owing to the loose and imprecise criteria that have come to be adopted. It deserves a close second look in the present century, in the larger interests of society.

Role of the State tort law In any modern society, interactions between the State and the citizens are large in their number, frequent in their periodicity and important from the point of view of their effect on the lives and fortunes of citizens. Such interactions often raise legal problems, whose solution requires an application of various provisions and doctrines. A large number of the problems so arising fall within the area of the law of torts. This is because, where relief through a civil court is desired, the tort law figures much more frequently, than any other branch of law. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

In any modern society, interactions between the State and the citizens are large in their number, frequent in their periodicity and important from the point of view of their effect on the lives and fortunes of citizens. Such interactions often raise legal problems, whose solution requires an application of various provisions and doctrines. A large number of the problems so arising fall within the area of the law of torts. This is because, where relief through a civil court is desired, the tort law figures much more frequently, than any other branch of law.

By definition, a tort is a civil wrong, (not being a breach of contract or a breach of trust or other wrong) for which the remedy is unliquidated damages. It thus encompasses all wrongs for which a legal remedy is considered appropriate. It is the vast reservoir from which jurisprudence can still draw its nourishing streams. Given this importance of tort law, and given the vast role that the State performs in modern times, one would reasonably expect that the legal principles relating to an important area of tort law, namely, liability of the State in tort, would be easily ascertainable. However, at present, this ideal is not at all achieved, in reality, in India. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

By definition, a tort is a civil wrong, (not being a breach of contract or a breach of trust or other wrong) for which the remedy is unliquidated damages. It thus encompasses all wrongs for which a legal remedy is considered appropriate. It is the vast reservoir from which jurisprudence can still draw its nourishing streams. Given this importance of tort law, and given the vast role that the State performs in modern times, one would reasonably expect that the legal principles relating to an important area of tort law, namely, liability of the State in tort, would be easily ascertainable. However, at present, this ideal is not at all achieved, in reality, in India.

Scheme of discussion In India, the provisions on the subject are so shaped, that one has necessarily to go to the past, in order to understand the present. For this reason, it has been considered desirable to deal, in the beginning, with certain historical aspects and to examine what was the position before the Constitution. This involves a study of a few important pre-Constitution decisions. How far the situation has changed (if at all) after the Constitution. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

In India, the provisions on the subject are so shaped, that one has necessarily to go to the past, in order to understand the present. For this reason, it has been considered desirable to deal, in the beginning, with certain historical aspects and to examine what was the position before the Constitution. This involves a study of a few important pre-Constitution decisions. How far the situation has changed (if at all) after the Constitution.

CONSTITUTIONAL PROVISIONS Article 300 of the Constitution The law in India with respect to the liability of the State for the tortious acts of its servants has become entangled with the nature and character of the role of the East India Company prior to 1858. It is therefore necessary to trace the course of development of the law on this subject, as contained in article 300 of the Constitution. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Article 300 of the Constitution

The law in India with respect to the liability of the State for the tortious acts of its servants has become entangled with the nature and character of the role of the East India Company prior to 1858. It is therefore necessary to trace the course of development of the law on this subject, as contained in article 300 of the Constitution.

Clause (1) of Article 300 of the Constitution provides first, that the Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State; secondly, that the Government of India or the Government of a State may sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or be sued, “if this Constitution had not been enacted”, and thirdly, that the second mentioned rule shall be subject to any provisions which may be made by an Act of Parliament or of the Legislature of such State, enacted by virtue of powers conferred by the Constitution. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Clause (1) of Article 300 of the Constitution provides first, that the Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State; secondly, that the Government of India or the Government of a State may sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or be sued, “if this Constitution had not been enacted”, and thirdly, that the second mentioned rule shall be subject to any provisions which may be made by an Act of Parliament or of the Legislature of such State, enacted by virtue of powers conferred by the Constitution.

Even though more than 57 years have elapsed since the commencement of the Constitution, no law has so far been made by Parliament as contemplated by article 300, notwithstanding the fact that the legal position emerging from the article has given rise to a good amount of confusion. Even the judgments of the Supreme Court have not been uniform and have not helped to remove the confusion on the subject, as would be evident from what is stated hereinafter. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Even though more than 57 years have elapsed since the commencement of the Constitution, no law has so far been made by Parliament as contemplated by article 300, notwithstanding the fact that the legal position emerging from the article has given rise to a good amount of confusion. Even the judgments of the Supreme Court have not been uniform and have not helped to remove the confusion on the subject, as would be evident from what is stated hereinafter.

Act of 1833 Under the Act of 1833 (3 and 4 William IV ch. 85), enacted by the British Parliament, the governance of India was entrusted to the East India Company. The Act declared that the Company held the territories in trust for His Majesty, his heirs and successors. When the governance of India was taken over by the British Crown in 1858, an Act was passed in that year (Act 21 and 22 Vic. ch.106), entitled the Government of India Act, 1858, Section 65 of that Act declared that the Government’s liability in this behalf shall be the same as that of the Company. It would be appropriate to set out the section in full: Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Under the Act of 1833 (3 and 4 William IV ch. 85), enacted by the British Parliament, the governance of India was entrusted to the East India Company. The Act declared that the Company held the territories in trust for His Majesty, his heirs and successors. When the governance of India was taken over by the British Crown in 1858, an Act was passed in that year (Act 21 and 22 Vic. ch.106), entitled the Government of India Act, 1858, Section 65 of that Act declared that the Government’s liability in this behalf shall be the same as that of the Company. It would be appropriate to set out the section in full:

“ The Secretary of State in Council shall and may sue and be sued as well in India as in England by the name of the Secretary of State in Council as a body corporate; and all persons and bodies politic shall and may have and take the same suits, remedies and proceedings, legal and equitable, against the Secretary of State in Council of India, as they could have done against the said Company; and the property and effects hereby vested in Her Majesty for the purposes of to Government of India, or acquired for the said purposes, shall be subject and liable to the same judgments and executions as they would, while vested in the said Company, have been liable, to in respect of debts and liabilities lawfully contracted and incurred by the said Company.” Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

“ The Secretary of State in Council shall and may sue and be sued as well in India as in England by the name of the Secretary of State in Council as a body corporate; and all persons and bodies politic shall and may have and take the same suits, remedies and proceedings, legal and equitable, against the Secretary of State in Council of India, as they could have done against the said Company; and the property and effects hereby vested in Her Majesty for the purposes of to Government of India, or acquired for the said purposes, shall be subject and liable to the same judgments and executions as they would, while vested in the said Company, have been liable, to in respect of debts and liabilities lawfully contracted and incurred by the said Company.”

Act of 1915 This very provision, contained in the Act of 1858, was practically continued by section 32 of the Government of India Act, 1915. Sub-sections (1) and (2) of that section read as follows:   “ (1) The Secretary of State in Council may sue and be sued by the name of the Secretary of State in Council, as a body corporate. (2) 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.” Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

This very provision, contained in the Act of 1858, was practically continued by section 32 of the Government of India Act, 1915. Sub-sections (1) and (2) of that section read as follows:

 

“ (1) The Secretary of State in Council may sue and be sued by the name of the Secretary of State in Council, as a body corporate.

(2) 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.”

Act of 1935 Even when the Government of India Act, 1935, was enacted, (replacing the Act of 1915), the same legal position was continued by section 176(1) of the Act, which read as follows:   “ The Federation may sue or be sued by the name of the Federation of India and a Provincial Government may sue or be sued by the name of the Province, and, without prejudice to the subsequent provisions of this Chapter, may, subject to any provisions which may be made by an Act of the Federal or a Provincial Legislature enacted by virtue of powers conferred on that Legislature by this Act, sue or be sued in relation to their respective affairs in the like cases as the Secretary of State in Council might have sued or been sued if this Act had not been passed.” Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Even when the Government of India Act, 1935, was enacted, (replacing the Act of 1915), the same legal position was continued by section 176(1) of the Act, which read as follows:

 

“ The Federation may sue or be sued by the name of the Federation of India and a Provincial Government may sue or be sued by the name of the Province, and, without prejudice to the subsequent provisions of this Chapter, may, subject to any provisions which may be made by an Act of the Federal or a Provincial Legislature enacted by virtue of powers conferred on that Legislature by this Act, sue or be sued in relation to their respective affairs in the like cases as the Secretary of State in Council might have sued or been sued if this Act had not been passed.”

Resultant position Thus, article 300 of the Constitution practically takes us back to the Act of 1858, which, in its turn, leads us to a consideration of the nature and extent of the liability of the East India Company.   Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Thus, article 300 of the Constitution practically takes us back to the Act of 1858, which, in its turn, leads us to a consideration of the nature and extent of the liability of the East India Company.

 

PRE-CONSTITUTION JUDICIAL DECISIONS Scope   Several important judicial decisions dealing with the liability of the State in tort were pronounced in India in the period before the Constitution; and we propose to refer to a few of them, confining ourselves to the most important of those decisions. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

Scope

 

Several important judicial decisions dealing with the liability of the State in tort were pronounced in India in the period before the Constitution; and we propose to refer to a few of them, confining ourselves to the most important of those decisions.

The Calcutta view: P & O Case   A consideration of the pre-Constitution cases (as to Government’s liability in tort) begins with the a judgment of the Supreme Court of Calcutta in the case. P. & O. Steam Navigation Co. Vs. Secretary of State. The case was actually reported as an Appendix to one of the Bombay High Court Reports – 5 B. H. C. R. App. P. 1. A servant of the plaintiff-company was proceeding on a highway in Calcutta, driving a carriage which was drawn by a pair of horses belonging to the plaintiff. He met with an accident, caused by negligence of the servants of the Government. For the loss caused by the accident, the plaintiff claimed damages against the Secretary of State for India. Sir Barnes Peacock C. J. (of the Supreme Court) observed that the doctrine that the “King can do no wrong”, had no application to the East India Company. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

 

A consideration of the pre-Constitution cases (as to Government’s liability in tort) begins with the a judgment of the Supreme Court of Calcutta in the case. P. & O. Steam Navigation Co. Vs. Secretary of State. The case was actually reported as an Appendix to one of the Bombay High Court Reports – 5 B. H. C. R. App. P. 1. A servant of the plaintiff-company was proceeding on a highway in Calcutta, driving a carriage which was drawn by a pair of horses belonging to the plaintiff. He met with an accident, caused by negligence of the servants of the Government. For the loss caused by the accident, the plaintiff claimed damages against the Secretary of State for India. Sir Barnes Peacock C. J. (of the Supreme Court) observed that the doctrine that the “King can do no wrong”, had no application to the East India Company.

The company would have been liable in such cases and the Secretary of State was thereafter also liable (He was interpreting section 65, Government of India Act, 1858, which equated the liability of the Secretary of State for India with that of the East India Company). On this holding, it was not necessary for Peacock C.J. to discuss the distinction between sovereign and non-sovereign functions. But he made a distinction between the two and observed, that if a tort were committed by a public servant in the discharge of sovereign functions, no action would lie against the Government – e.g. if the tort was committed while carrying on hostilities or seizing enemy property as prize. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

The company would have been liable in such cases and the Secretary of State was thereafter also liable (He was interpreting section 65, Government of India Act, 1858, which equated the liability of the Secretary of State for India with that of the East India Company). On this holding, it was not necessary for Peacock C.J. to discuss the distinction between sovereign and non-sovereign functions. But he made a distinction between the two and observed, that if a tort were committed by a public servant in the discharge of sovereign functions, no action would lie against the Government – e.g. if the tort was committed while carrying on hostilities or seizing enemy property as prize.

The doctrine of immunity for acts done in the exercise of “sovereign functions”, enunciated in the P & O case, was applied by the Calcutta High Court in Nobin Chander Dey Vs. Secretary of State, (1873) ILR 1 Cal. 1. In that case, the plaintiff contended that the Government had made a contract with him for the issue of a licence for the sale of ganja and had committed breach of the contract. The High Court held as under: (i) On the evidence, no breach of contract had been proved. (ii) Even if there was a contract, the act was done in exercise of sovereign power and, therefore it was not actionable. The High Court expressly followed the P & O ruling (discussed supra ). Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

The doctrine of immunity for acts done in the exercise of “sovereign functions”, enunciated in the P & O case, was applied by the Calcutta High Court in Nobin Chander Dey Vs. Secretary of State, (1873) ILR 1 Cal. 1. In that case, the plaintiff contended that the Government had made a contract with him for the issue of a licence for the sale of ganja and had committed breach of the contract. The High Court held as under:

(i) On the evidence, no breach of contract had been proved.

(ii) Even if there was a contract, the act was done in exercise of sovereign power and, therefore it was not actionable. The High Court expressly followed the P & O ruling (discussed supra ).

  The Madras and Allahabad view: Immunity confined to acts of State In Secretary of State Vs. Hari Bhanji , (1882) ILR 5 Mad. 273, the Madras High Court held that State immunity was confined to acts of State. Turner CJ, in coming to this conclusion, pointed out that in the P & O Case (Supreme Court, Calcutta), Peacock CJ did not go beyond acts of State, while giving illustrations of situations where the immunity was available. The position was thus explained (in the Madras case): Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

In Secretary of State Vs. Hari Bhanji , (1882) ILR 5 Mad. 273, the Madras High Court held that State immunity was confined to acts of State. Turner CJ, in coming to this conclusion, pointed out that in the P & O Case (Supreme Court, Calcutta), Peacock CJ did not go beyond acts of State, while giving illustrations of situations where the immunity was available. The position was thus explained (in the Madras case):

“ The act of State, of which the municipal courts of British India are debarred from taking cognisance, are acts done in the exercise of sovereign power, which do not profess to be justified by municipal law ……where an act complained of is professedly done under the sanction of municipal law, and in exercise of powers conferred by that law, the fact that it is done by the sovereign powers and is not an act which could possibly be done by a private individual does not oust the jurisdiction of the civil court”. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

“ The act of State, of which the municipal courts of British India are debarred from taking cognisance, are acts done in the exercise of sovereign power, which do not profess to be justified by municipal law ……where an act complained of is professedly done under the sanction of municipal law, and in exercise of powers conferred by that law, the fact that it is done by the sovereign powers and is not an act which could possibly be done by a private individual does not oust the jurisdiction of the civil court”.

It should, however, be mentioned that the Madras judgment in Hari Bhanji (supra) also adds, that the Government may not be liable for acts connected with public safety (even though they are not acts of State).   The Madras High Court re-iterated this view in Ross Vs. Secretary of State , AIR 1915 Mad. 434.   The Allahabad High Court took a similar view in Kishanchand Vs. Secretary of State , (1881), ILR 2 All 829. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

It should, however, be mentioned that the Madras judgment in Hari Bhanji (supra) also adds, that the Government may not be liable for acts connected with public safety (even though they are not acts of State).

 

The Madras High Court re-iterated this view in Ross Vs. Secretary of State , AIR 1915 Mad. 434.

 

The Allahabad High Court took a similar view in Kishanchand Vs. Secretary of State , (1881), ILR 2 All 829.

However, in Secretary of State Vs. Cockraft , AIR 1915 Mad 993; ILR 39 Mad. 35, making or repairing a military road was held to be a sovereign function and the Government was held to be not liable, for the negligence of its servants in the stacking of gravel on a road resulting in a carriage accident injuring the plaintiff. (The more liberal approach of Hari Bhanji was thus slightly modified). Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

However, in Secretary of State Vs. Cockraft , AIR 1915 Mad 993; ILR 39 Mad. 35, making or repairing a military road was held to be a sovereign function and the Government was held to be not liable, for the negligence of its servants in the stacking of gravel on a road resulting in a carriage accident injuring the plaintiff. (The more liberal approach of Hari Bhanji was thus slightly modified).

The Bombay view: Immunity available, only for acts of state In the Bombay case of 1949 – Rao Vs. Advani , AIR 1949 Bom. 277, 51 Bom LR 342, Chagla CJ and Tendolkar J., held that the Madras view ( Hari Bhanji case) was correct. The Bombay case was not one of a claim to damages for tort, but related to a petition for certiorari to quash a Government order for the requisitioning of property, as proper notice had not been given. On appeal, the Supreme Court – State of Bombay Vs. Khushaldas Advani , AIR 1950 SC 222; (1950) SCR 621, reversed the High Court, holding that natural justice was not required to be observed, before requisitioning any property. Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

In the Bombay case of 1949 – Rao Vs. Advani , AIR 1949 Bom. 277, 51 Bom LR 342, Chagla CJ and Tendolkar J., held that the Madras view ( Hari Bhanji case) was correct. The Bombay case was not one of a claim to damages for tort, but related to a petition for certiorari to quash a Government order for the requisitioning of property, as proper notice had not been given. On appeal, the Supreme Court – State of Bombay Vs. Khushaldas Advani , AIR 1950 SC 222; (1950) SCR 621, reversed the High Court, holding that natural justice was not required to be observed, before requisitioning any property.

B K. Mukherjea J. (as he then was), approved the Madras view and accepted the definition of “act of State given in Eshugbayi Vs. Government of Nigeria ¸ (1931) AC 662, 671 (Privy Council). Other judges of the Supreme Court did not express any views on this point. Mukherjea J. took care to point out, that in the P & O case , the question at issue was, whether the Secretary of State for India could be sued for a tort committed in the course of a business. Whether he could be sued for cases not connected with business, was not at issue, in the P & O case . Monday, June 8, 2009 Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, Law of Tort

B K. Mukherjea J. (as he then was), approved the Madras view and accepted the definition of “act of State given in Eshugbayi Vs. Government of Nigeria ¸ (1931) AC 662, 671 (Privy Council). Other judges of the Supreme Court did not express any views on this point. Mukherjea J. took care to point out, that in the P & O case , the question at issue was, whether the Secretary of State for India could be sued for a tort committed in the course of a business. Whether he could be sued for cases no

Add a comment

Related presentations

Related pages

Dr. Tabrez Ahmad Tort Lectures, SlideSearchEngine.com

Dr. Tabrez Ahmad , Associate Professor of Law, KIIT Law School , KIIT University , BBSR, INDIA COURSE DESCRIPTION Law has to protect the rights of persons ...
Read more

Prof. (Dr.) Tabrez Ahmad | LinkedIn

View Prof. (Dr.) Tabrez Ahmad’s professional profile on LinkedIn. ... Organised various invited lectures and workshops. ... Law of Tort, Law of Contract, ...
Read more

Dr. Tabrez Ahmad Tort Lectures - Education - documents

These are the slides of the lectures delivered by Dr. Tabrez Ahmad, ... Dr. Tabrez Ahmad Tort Lectures; Dr. Tabrez Ahmad Tort Lectures Nov 20, 2014 Education
Read more

Dr. TABREZ AHMAD - Bepress

Dr. TABREZ AHMAD Contac: ... Organised various invited lectures and workshops. ... Law of Tort, Law of Contract, Jurisprudence, ...
Read more

Law Of Tort Kls Lectures - Education - documents.mx

1.Welcome to 2 ndSemesterLaw of Tort Sunday, June 7, 2009 Dr. Tabrez Ahmad KLS, KIIT, BBSR, Law of Tort. 2. COURSE DESCRIPTION . Law has to protect the ...
Read more

Cybertort - scribd.com

Dr. Tabrez Ahmad Associate Professor of Law ... Theses slides are the lectures delivered by Dr. Tabrez Ahmad on Cybertort at National Law University ...
Read more

KIIT University, Bhubaneswar-751024 - ResearchGate

KIIT University, Bhubaneswar-751024 ... COURSE DESIGNED BY Prof. (Dr.) TABREZ AHMAD www.technolexindia.com ... from intellectual property to tort to the First
Read more