Secretary Of State v. Nagorao Limbaji

1. In April 1934 the plaintiff accompanied the Inspector. General of Police Mr. (afterwards Sir Charles) Chitham to Pachmarhi. The plaintiff was then a head constable acting as Mr. Chitham's chauffeur. On 9th June 1934 Mr. Chitham drove his car along the road that leads to Fairy Pool and stopped it at a short distance north of the damaged bridge shown in the map (Ex. D6). From there, he walked across the bridge down the path leading to Fairy Pool, leaving the plaintiff at the car. The plaintiff strolled across the bridge and picked up a metal object lying just off the track beyond the bridge at the point F. Holding it in his left hand he his it with a stone in order to open it and there was an explosion in which the plaintiff lost the top of his thumb, two phalanges of the middle finger, and almost the whole of the second finger, of his left hand. The present suit was brought by the plaintiff against the Secretary of State for India in Council for Rs. 2500 as compensation for the injuries caused. In the lower Courts he was awarded Rs. 1500 and the Secretary of State has now preferred this second appeal.

2. The area on both sides of the track south of the bridge was then used as a practice bombing ground by the military authorities.

3. Grenades used to be fired from each side of the track at a circle of stones marked E. On 6th April 1934 a grenade fired from a rifle failed to explode. This is technically known as a “blind.” As there was danger that this might subsequently explode a search was made for it, but owing to the broken nature of the ground it could not be found. A notice (Ex. D4) was circulated to various people relating what had happened and stating that care should be taken to avoid this area. The Sub-Inspector (P.W 2) informed the inhabitants by beat of drum that this area was dangerous and a red flag was put up in the circle of stones at E. This “blind” was never found, but on 26th April the public were informed that it was not considered safe to use the track but they were warned not to wander off the track in the immediate vicinity of the bombing area. In the search for the unexploded grenade four unexploded ignition-sets were found, an ignition-set being the central portion of a grenade containing a fuse which is ignited by the striking of a cap and causes the grenade to explode. Whenever a grenade had failed to explode and was subsequently found it was the practice to explode it, and it is admitted that these unexploded ignition-sets that were picked up must have come out of the grenades thus exploded. After it was realized that a grenade might explode leaving the ignition-set intact, “blinds” were exploded in a box chained to the ground to localize the explosion.

4. Mr. Hidayatullah for the defendant has contended that the plaintiff was at best a licensee and that the licensor had no duty towards him beyond warning him of any dangers of which the licensor was aware. That no doubt is the general law, but a higher standard of care is required of persons who deal with such dangerous things as firearms or explosives; from them the law requires consummate caution. I agree with the lower Courts that consummate caution was clearly not exercised by the persons who dealt with these explosives. There was no notice on the spot at the time to warn passers by of any lurking danger, though notices have since been put up, and both Mr. Chitham and the plaintiff were unaware of the warning that had been given to the public and they did not gather from the red flag that there was any danger about. The metal object picked up by the plaintiff, which was an unexploded ignition-set, was lying just off the track about so to 40 yards from the red flag. There was nothing in it to indicate to a person of the plaintiff's experience that it was dangerous, and both the lower Courts have held that there was no contributory negligence on the part of the plaintiff. The evidence of the Public Works Department Overseer (P.W 5) shows that a coolie was injured by a grenade in February 1934, presumably an ignition-set. When several unexploded ignition-sets were found in that area in April 1934 there was obvious danger that there might be others concealed there, as in fact there were, and the circumstances clearly required a notice on the spot to warn persons of the danger. I agree with the lower Courts that there was negligence, which means the absence of proper care; in such circumstances a private individual would be liable for damages. As regards the liability of the Secretary of State for India:

It is a settled rule of law that the Secretary of State for India in Council can only be sued in respect of those matters for which the East India Company could have been sued, since the Crown in charge of the present Government in India is only the successor to the East India Company. The company could not be sued for its acts in the exercise of sovereign powers Relegated to it by the Crown, so the Secretary of State for India in Council cannot be sued in respect of the acts done by the Government as a sovereign power: see, 9 Rang. 3751 and 5 Luck. 157.2

5. The question therefore is whether the acts of the defendant's servants were acts in the exercise of sovereign powers. I think it is clear that they were, as has been held by the learned District Judge. The principle was laid down in 1861 by Sir Barnes Peacock C.J in 5 Bom. H.C.R App. 1.3 The principle there laid down was apparently approved by the Privy Council in 40 I.A 484 and has often been followed and never, so far as I know, successfully challenged. It was there laid down at pages 14 and 15 that:

It is clear that the East India Company would not have been liable for any act … done by a military or naval officer or by any soldier or sailor, whilst engaged in military or naval duty.

6. In 39 Mad. 3515 it was held, in accordance with this principle, that the maintenance of a military road was an act undertaken in the exercise of sovereign powers and that the Secretary of State was not liable for damages in respect of injuries sustained in a carriage accident due to the negligent stacking of gravel on that road. The present case is clearly a stronger one than that. The provision of facilities for bombing practice is a public duty undertaken by the State in order to provide training for the army. Such duties, in the words of Sheshagiri Ayyar J. in 39 Mad. 351 at p. 360 are not exercised by the State for its own emolument or benefit but for the benefit and protection of the entire population, and they are therefore acts undertaken in the exercise of sovereign powers.

7. The immunity of the Secretary of State for India in such cases was apparently not realized by the learned Subordinate Judge but was realized by the learned District Judge who held that the acts in question were acts undertaken in the exercise of sovereign rights. He went on however to hold that this immunity is not without legal obligations towards the subject and that there is no immunity from liability for damages caused by acts under statutory powers unless the authorised operations were conducted with out negligence. There is no question here of the exercise of powers conferred by statute, and the cases cited by the learned District Judge were not cases in which Secretary of State was a party. Where the Secretary of State is acting in the exercise of sovereign powers, as here, he is not liable for damages in a case like the present. There may be exceptions to this general rule of immunity, and in A.I.R 1934 Bom. 2776 it was said that the Secretary of State might be liable if the act were authorized by statute, or constituted a trespass to immovable property or benefit accrued from the act of State, but, as the learned District Judge said, these exceptions are not material here.

8. I have reached this decision with some regret as the plaintiff received serious injuries through the negligence of others. He was then a head constable drawing I am told, Rs. 26 per month and is now a head constable drawing Rs. 82 per month so there has been no loss of wages, but his enjoyment of life has obviously been decreased and his chances of obtaining other employment, if he ever wishes to do so, have considerably diminished. I should have thought that this was a case in which the Government might have offered, or might even now offer, some compensation ex gratia. I have considered carefully whether I should be justified in departing from the ordinary rule that costs follow the event but I have come to a conclusion that I should not. The Government has chosen to stand on its strict legal rights and, though this is hardly an attitude to be admired in the present case, it is not an attitude that would justify me in penalizing it by depriving it of costs. As a result, the appeal must be allowed and the suit must stand dismissed with costs throughout.

9. Appeal allowed.