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The tort liability of the government in atlantis, a country with a republican socialistic form of constitution similar to india. The case involves the construction of an irrigation canal by the government through the orchard of a plaintiff, mr. X'mas, which led to the wilting and withering of 300 of his fruit trees due to the rise in the sub-soil water level. The document analyzes the government's potential negligence, the applicability of the sovereign power defense, and the plaintiff's entitlement to monetary compensation. It delves into the evolution of the distinction between sovereign and non-sovereign functions, citing relevant indian supreme court rulings, and argues that the modern welfare state's diverse responsibilities make this distinction obsolete. The document concludes that the government is liable for the tort committed and the plaintiff should be awarded damages.
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Statement of Fact Union of Atlantis has a republican socialistic form of constitution. The laws in Atlantis are in pari materia to the laws in the Union of India. The Government of Atlantis had constructed an irrigation panel about seven feet deep passing through the orchard of Charlie X’mas. Within the year of the inauguration of the canal and the water being let in the canal, the level of sub-soil water arose appreciably. As a result, due to excessive absorption of water by the roots of the fruit trees growing in the orchard owned by Mr. X’mas, about 300 trees wilted and withered. This caused him huge financial losses. Charlie X’mas sued the government of Atlantis and claimed Rs. 1,00,00,000 as damages for the losses he suffered due to the government's negligence in the construction of the canal. He contended had the canal been lined at the floor level no damages would have been suffered by his orchard. The Government has denied any liability on the grounds of the sovereign power of the state.
Statement of Issue
Arguments Advanced
1. The Government was negligent while constructing the canal. It is humbly submitted that the Government was negligent while constructing the canal that has led to damages to the plaintiff orchard. In order to prove negligence, it has to be shown that there has been a breach of duty and this breach of duty has led to damages to the plaintiff. In the present case, the Government did not take reasonable care. The Government constructed the canal through the orchard of X’mas and did not take reasonable care to avoid any damage that could have been caused to X’mas Orchard as he has the most proximate neighbour. Had the Government had lined the floor level of the canal the damage caused to X’mas could have been avoided. They did not take steps to avoid the risk that any reasonable man could have predicted. The Government has not taken reasonable care that has led to a breach of duty that they owed to the plaintiff. Plaintiff has suffered financial loss because of Government action as within a year of the water being let out in the canal, the level of sub-soil water arose appreciably. As a result, due to excessive absorption of water by the roots of the fruit trees growing in the orchard owned by Mr. X’mas, about 300 trees wilted and withered. This breach of duty has caused damage to the plaintiff. The Supreme Court of Indian in Jay Laxmi Works P Vs State of Gujarat held that when the state fails to take reasonable care that lead to damages the state can be held liable for negligence^1. 2. The defence sovereign power does not exempt the state from tortious liability. It is humbly submitted that the defence of sovereign power that the Government of Atlantis is taking does not immune the Government from tortious liability. The State can be held liable for negligence. The distinction between sovereign function and non- sovereign function is outdated and no longer holds true in modern times. This distinction first came about in the Union of India in P&O Steam Navigation vs Secretary of state for India in 1861^2 this view was accepted in India by Supreme Court in Kasturi Lal vs State of UP^3. The Court in Kasturi Lal's case upheld the defence of sovereign immunity. In the said case the seized gold was kept in the Malkhana and the person from whom it was seized applied for its return later on but the case was not done and it appeared that it was no longer in Malkhana and the same was misappropriated by the policemen in charge as he ran away with it. It was held that this happened because of the negligence on the part of the police officers who acted in violation of provision of U.P. Police Regulations and the powers which were (^1) Jay Laxmi Works (P) Ltd vs State of Gujarat, 1994 SCC (4) 1 (^2) Oriental Steam Navigation v. Secretary to the State of India (^3) Kasturi Lal Ralia Ram v. State of Uttar Pradesh, AIR 1965 SC 1039
exercised by them could be properly characterised as sovereign powers^4. This distinction as held in Kasturi Lal subsequently was done away with. In Nagendra Rao v. State of Andhra Pradesh^5 , the Supreme court of Union of India held, “ welfare state functions of State are not only defence or administration of justice or maintaining law and order which are sovereign functions of State, but its functions intend to regulate and control activities of people in almost every sphere: educational, commercial, social, economic, political or even marital, and the demarcating line between sovereign and non-sovereign powers for which no rational basis survives has largely disappeared”. The court in the above said case held that the distinction of sovereign and non-sovereign function is not possible in the modern era. The court in the said case also held that the sovereign and non-sovereign would depend on the nature of power and it exercise. It held that one of the test to determine if the State function is sovereign in nature is whether the State is answerable for such actions in Courts of law. For instance, such as defence, security, raising armed forces and maintaining it, making peace or war, foreign affairs, power to clear territory are functions which are indicative of external sovereignty and therefore they are not amenable to the civil courts^6. In this case the court held that the defence of sovereign function cannot extend to large number of other activities that state has started to perform in modern times like healthcare, education and various other commercial activities that states today are involved. Sovereignty in India now vests in the people who have given a written constitution to India with certain aims and objects enshrined in the Preamble to the Constitution. The claim of immunity under sovereign function now survives only in defence, administration of justice, maintenance of law and order, repression of crime etc. which are primary and inalienable functions of Government regulated by a constitution^7. Chief Justice Gajendragadkar after upholding the distinction of sovereign and non-sovereign function in the Kasturi Lal case realising the absurd legal position upheld by the court advised the government of the day to introduce legislation on lines of Crown Proceeding Act,1947 of England that would make the state vicariously liable for torts committed by its servants^8 In modern times the state is a welfare state today performs various functions and is in all kinds of the field like education and healthcare while it can be argued that as the state today performs so many functions and has so many responsibilities it should not be overburdened with accepting vicarious liability for torts of its servants. As the state has so many responsibilities and duties so it requires extraordinary power to perform this duty. But this argument is very problematic as it does not take into consideration the right of the plaintiff to seek redress for the damage caused to him. There should be a balance between the duties of the state and right of the people. The people should (^4) Supra 3 (^5) Nagendra Rao v. State of Andhra Pradesh, AIR 1994 SC 2663 (^6) Supra 5 (^7) TORTIOUS LIABILITY OF STATE UNDER THE CONSTITUTION : A Lecture by Justice U.C. Srivastava (^8) Government (Liability in Tort) Bill, 1967: A Joint committee report.
Prayer. Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it is humbly prayed that this Hon’ble Court may be pleased to hold, adjudge and declare that;
