`

Appellant: State of Orissa

v.
Respondent: Padmalochan Panda

INSTRUCTOR: Prof. Abhik Majumdar

SUBMITTED BY:
SIDDHARTH NIGOTIA- 14/BBA/048

Contents
Table Of Cases ........................................................................................................................................ 3
Introduction ............................................................................................................................................. 4
Methodology ........................................................................................................................................... 5
A Brief Overview of the Position of Law Prior To The case.................................................................. 6
Facts Of The Case ................................................................................................................................... 8
The Legal Issues Raised In The Case ................................................................................................... 10
Decisions reached by the court ............................................................................................................. 11
Arguments Presented by the appellant .............................................................................................. 11
Arguments Presented by the respondent ........................................................................................... 13
Reasons adduced by judges for reaching the conclusions that they did............................................ 14
Differences between the judges : ...................................................................................................... 16
Conclusion ............................................................................................................................................ 17
Bibliography ......................................................................................................................................... 18

Table Of Cases
Cases
Kasturi Lal v. The State of Uttar Pradesh, AIR 1965 SC 1039 ............................................................... 9
Peninsular and Oriental Steam Navigation Company v. Secretary of State for India-in-Council, 5
Bom. H.C.R. App. A-1 ....................................................................................................................... 4
Premraj v. Pramod Kumar, AIR 1964 GH 85....................................................................................... 10
Sri chand v. Jagdish Pershad, AIR 1966 SC 1427 ................................................................................ 11
State of Madhya Pradesh v. Saheb Dattamal and Ors, AIR 1967 MP 246............................................. 9
State of Orissa v. Padmalochan Panda, AIR 1975 Ori 41 ...................................................................... 1

Statutes
Article 300 .............................................................................................................................................. 3

Other Authorities
S.P. Singh, The Law of Tort Including Compensation Under Consumer Protection Act (5th edn,
Universal Law Publishing Co. 2010) 220 .......................................................................................... 3

Introduction

The case of State of Orissa v. Padmalochan Panda1 is based on vicarious liability of the state. It deals
with sovereign functions and delegated sovereign functions of the state, in particular, the tortious acts
committed by the employees of the State in exercise of the sovereign functions. A advocate practicing
at Bargarh was injured in a lathi charge by Orissa Police personnel. It deals with the wrongful act
committed by those police personnels. The incident took place in Bargarh district of Orissa and after
first appeal, the case has been brought to the Orissa High Court.

AIR 1975 Ori 41

Methodology

The research in this project was done with the help of primary and secondary sources of data. The
researcher has also referred to two landmark cases which are considered to be leading authorities on
the subject issue.
The primary sources used for this project are : All India Reporter
The secondary resources used for this project are manupatra.com
The citation style used in this project is the Oxford University Standard for the Citation of Legal
Authorities, 4th edition.

A Brief Overview of the Position of Law Prior To The case

Article 3002 of the Constitution of India is silent on the point of state liability but indirectly
equates the state liability with that of the former liability of then East India Company. Article 300
of The constitution of India implicitly refers to section 176 of Government of India Act, 1935,
which reads :
"The Federation may sue or be sued by the name of the Federation of India and the
Provincial Governments 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 the Act of the Federation or Provincial Legislature enact by virtue
of powers conferred on that legislature by this Act, sue or be sued, in relation to their
respective affairs in the like case as the Secretary of State for Indian Council might have
sued or been sued if this Act has not been passed."
This implicitly refers to section 32 of the Government of India Act, 1915, which states:
(1) The Secretary of State in Council may sue and be sued by the name of 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.
This takes us to section 65 of the Government of India Act, 1858, which reads:
"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 and 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 the 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."3

.
2

Article 300 of the Constitution reads: "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 and may, subject to any
provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of
powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the
Dominion of India and corresponding provinces or the corresponding Indian States might have sued or been
sued if this constitution had not been enacted".
3
S.P. Singh, The Law of Tort Including Compensation Under Consumer Protection Act (5th edn, Universal Law
Publishing Co. 2010) 220

The liability laid down by the Government of India Act, 1858 has not been laid down anywhere. It has
to be decided on the basis of study of past cases decided by the courts. The first and most leading
authority on this issues is Peninsular and Oriental Steam Navigation Company v. Secretary of State
for India-in-Council.4 The merits of this case have also been discussed in State of Orissa v.
Padmalochan Panda.

5 Bom. H.C.R. App. A-1

Facts Of The Case

Plaintiff is an advocate practicing at Bargarh in the district of Sambalpur. The first defendant is the
state of Orissa and second and the third defendant were, at the relevant time, members of the 4 th
Battalion Orissa Military Police. Defendants 2 and 3 did not contest the case and were set ex parte.
On 28th October, 1964 a procession of students came to court room of the S.D.O and four students out
of the processionists went inside the office of the S.D.O and asked him to comply with their demands
which they had submitted to him two days earlier. The S.D.O told them that their demands were
forwarded to the Collector and he was ignorant of the decision taken and demands. The students
threatened the S.D.O to break law and order if their demands were not met by evening. S.D.O tried to
pacify them by saying them that he would try to get the decision of the Collector over the phone.
The four students had some discussion with the members of public and gave out to break law and
order and by picketing and committing cognizable offenses. In meantime, Orissa Military Police
cordoned the S.D.Os office.
At about 4p.m. at the instigation of the plaintiff and others the public, the students rushed towards the
cordoning constables, snatched away their lathis and kicked them. The students and the public pelted
stones at police officers. The constables of outer cordon were forced to resort to mild lathi charge in
self-defence, to maintain law & order and to keep away the unruly crowd who were rushing towards
the court premises. The lathi charge was for a few seconds and resulted in simple injuries to the
plaintiff and others in the crowd. The unlawful assembly consisting of the plaintiff, students and
public violated the order promulgated under section 144 of Cr. PC.
At the trial court it was concluded that the Plaintiff did not instigate the crowd &that Plaintiff
happened to come to the side of the crowd when the police personnel made lathi-charge.
Plaintiff failed to establish that he received injuries in the hands of defendants 2 & 3 and consequently
the suit was dismissed against them. It was held that Defendant 1 was not vicariously liable for any
act done in exercise of the sovereign power and hence the suit was dismissed against defendant 1.
The Plaintiff filed First Appeal No. 38 0f 1968 against the adverse decree of the trial court.
The appeal was prosecuted against the Defendant 1 alone in the appeal and not against defendant 2
and 3. The single judge bench held that police force did not act in self-defence nor in exercise of the
sovereign power and that Plaintiff received injuries by them. The bench also held that the appeal
against first defendant alone was competent though it had been dismissed against Defendants 2 & 3.
The plaintiffs suit was decreed for Rs. 5,440.
8

The 1st defendant then filed a A.H.O in High Court of Orissa.

The Legal Issues Raised In The Case

1.) Whether the decree passed by the single judge bench is inconsistent with the decree passed by
the trial court?
2.) Whether the acts done by the defendants 2&3 were sovereign functions of the state?
3.) Whether or not the State is vicariously liable for the acts done by the defendants 2 & 3?

10

Decisions reached by the court

Arguments Presented by the appellant

The first contention that the appellant advanced was that since the suit filed by the plaintiff
against Defendant 2 & 3 and the suit against them being dismissed, no decree for damages
could be passed against Defendant 1. Plaintiffs suit was dismissed against defendants 2 & 3
and the first appeal not having been prosecuted against them, the trial court decree against
defendants 2 & 3 became final and conclusive. A decree against the first defendant on the
identical cause of action would lead to two inconsistent decrees in the course of same
litigation.
The plaintiff cannot be allowed to get damages against the defendants on a new case which is
different from what was mentioned in his plaint.
The second contention that the appellant advanced was that the defendant should not be
allowed to claim damage from defendant 1 as the injuries caused to him were caused by the
police personnel in exercise of sovereign functions of defendant 1.
Appellant referred to Article 300 which implies the position of law as developed by
authorities is now same as it was prior to the constitution. A leading authority on this point is
Peninsular and Oriental Steam Navigation Company v. The Secretary of State for India. The
learned chief justice in that case observed that: "where an act is done, or a contract is entered
into, in the exercise of powers usually called sovereign powers; by which we mean powers
which cannot be lawfully exercised except by sovereign or private individual delegated by a
sovereign to exercise them, no action will lie. And, naturally it follows that where an act is
done, or a contract is entered into, in the exercise of powers which cannot be called sovereign
powers, action will lie.5

Peninsular (n 4)

11

The appellant further contended that the acts committed by defendants 2 & 3 were under the
category sovereign functions of the state. The posting of Orissa Police personnel for
cordoning in front of S.D.Os court was an act of the delegated sovereign function. The fact
that personnel committed excess in discharge of their function without authority would not
take away the illegal act from the purview of delegated sovereign function. Here, to support
the argument the plaintiff placed the authority as laid down under State of Madhya Pradesh v.
Saheb Dattamal and Ors6 It was held that in every case where the Government is sought to
be made vicariously liable for acts done by its servant there is invariably an element of
irregularity, excess or misuse of power.7
The plaintiff relied on Kasturi Lal v. The State of Uttar Pradesh8, where it was held that the
state was not liable for the negligence committed in the course of employment by an
employee in discharge of the sovereign functions of the state.9

AIR 1967 MP 246

ibid
8
AIR 1965 SC 1039
9
ibid
7

12

Arguments Presented by the respondent

The respondent in the First Appeal, submitted that in the cases like the present one the
liability of State is both joint and several and thus, there is no impediment in passing a decree
for damages against the state even if it has been established that defendants Nos. 2 and 3 did
not commit the tortious act and even if the appeal was not subsequent prosecuted against
defendants 2 & 3.
The respondent placed before the court the authority held in the case of Premraj v. Pramod
Kumar10. In this case it was held that a suit cannot fail on account of non-joinder of one of the
tort-feasors.11

The defendant contended the acts committed by police were not sovereign functions since no
function would come within the ambit of sovereign power unless the same is conferred by a
statute.
The respondent contended that the police personnel without any orders from the magistrate or
higher police authorities assaulted the members of the mob as a result of which the plaintiff
was injured since they made lathi charge without any orders from superior authority they
were not exercising delegated sovereign functions of the state.
The respondent placed before the court authority under section 127 to 130 of Cr. Pc to
contend that dispersal of unlawful authority is to be preceded by a warning and with orders
from superior authorities. Under section 127 and 128, power to disperse an unlawful
authority with force is with Magistrate or the officer in-charge of police station. Sections 129
and 130 authorises the Magistrate for dispersing such an assembly by armed force by
requiring the officer in command to use force for dispersing the assembly. Further it was
contended that no function would come under sovereign function unless the same is
conferred by a statute.

10
11

AIR 1964 Gau 85

ibid

13

Reasons adduced by judges for reaching the conclusions that they did

1.) The judges decided that the plaintiffs suit is to be dismissed on his failure to prove
the case as presented in the plaint. The suit cannot be decreed on a new ground. The
judges relied on decision in Sri chand v. Jagdish Pershad12, where it was held that an
appellate court cannot vary the decree in favour of all plaintiffs or all defendants when
the decree proceeds on a common ground to all the plaintiffs or defendants, if all
defendants or plaintiffs appeal from the decree and any one of them dies and the
appeal abates so far as he is concerned.

2.) The judges decided that appeal against the state is to be dismissed as having abated.
the suit having been dismissed against defendants 2 & 3 and the first appeal being not
prosecuted against them the decree in their favour became final and conclusive. If a
decree is passed against them on the same facts with contrary conclusion, then there
would be two inconsistent decrees in the same course of litigation.

The submission of Plaintiff was rejected. The judges observed that facts of the case
Premraj v. Promode Kuma13 has no application to the facts of this case as in the
present case the question of abatement of appeal against first defendant arises, and in
the submitted case question of abatement does not arise.

3.) The judges decided that even if the defendants 2 & 3 caused the assault and the appeal

against the State did not abate, the State cannot have any vicarious liability as the
functions discharged by Defendants 2 & 3 or any other police personnel was in
exercise of the delegated sovereign function.
The plaintiffs submission relating to Section of 127-130 of Cr. Pc were rejected. The
cordoning of police personnel in front of SDOs court was in exercise of delegated
sovereign functions. The contention till here was accepted but the question for
consideration however was that the illegality committed by the police personnel in
12

AIR 1966 SC 1427

13

Premraj, (n 10)
14

making lathi charge without any direction from a superior authority comes under the
purview of delegated sovereign function. The judges observed that even if the police
personnel committed excess in discharge of their function without authority would not
take away the illegal act from the purview of delegated sovereign function. The
judges relied on submission of Defendant of Kasturi Lal v. The State of Uttar
Pradesh.14 Relying on Kasturi Lal v. The State of Uttar Pradesh 15, Judges concluded that
State was not vicariously liable for the acts committed by its employees in discharge
of sovereign function.
The judges rejected that the defendants argument that no function would come within
the ambit of sovereign power unless the same is conferred by a statute was rejected.
The judges relied on Article 53, 73 and 162 of the constitution to clear the position
that sovereign executive power can be exercised even in a sphere where there is no
legislation..

14
15

Kasturi, (n 8)
ibid

15

Differences between the judges :

1.) Justice Misra contended that no function would come within the ambit of
sovereign functions unless the same is conferred by a statute. To this, Justice
Mohanty argued relying on Articles 53, 73 & 132 of the Constitution that even if
there is no statute in a particular field, the executive power of union extends to
such matters. The contention of Justice Mohanty prevailed.

2.) Justice Misra placing reliance on Sections 127 to 130 of Cr. PC contended that the
police personnel were not exercising delegated sovereign functions when they
made lathi charge without orders from superior authority. Justice Mohanty
however, argued that the question consideration however, is whether there is an
illegality committed by the police personnel in making the lathi charge without
any direction from a superior authority. Justice Misra agreed to Justice Mohantys
observation that posting of police personnel for cordoning S.D.Os court was in
exercise of the delegated sovereign function. If that was so, observed Justice
Mohanty, the fact that police personnel committed excess in sicharge of their
function without authority would not take away the illegal act from the purview of
delegated sovereign function. Jutise Mohantys argument was accepted.

16

Conclusion

From a comprehensive study of this case, I have concluded that the Decision of the High Court was
taken on right grounds and the Plaintiff did not have right to claim damages from The State. The
findings of the case clearly points out the fact that the Plaintiff was injured by the 2 nd and 3rd
defendants, but they were carrying out the their functions in excess of sovereign powers of the State.
Although the Law is silent on what constitutes sovereign liability and when state is to be held
vicariously liable, there are enough Case Laws to determine these two questions. The subject is not
res integra and cases like Peninsular and Oriental Steam Navigation Co. v. Secretary of State for
India in Council16 and Kasture Lal v. The State of Uttar Pradesh17 are leading authorities that can be
relied upon to decide the above mentioned questions.

16
17

Peninsular (n 4)
Kasturi, (n 8)

17

Bibliography

Singh S.P. , The Law of Tort Including Compensation Under Consumer Protection Act (5th edn,
Universal Law Publishing Co. 2010) 220

18