 iiw no h " 1"5 the government (liability in tort) bill, 1~5 a billto define and amend the law with respect to the liability of the gooermnent in tort and to provide for certaitn matters coftnect~ therewith be it enacted by parliament in the sixteenth year of the republic of india as follows:-"  s1 (1) this act may be called the government (liability in tort) short act, 1965~ title, extent (2) it extends to the whole of india except the state of jmnmu and com- ~eand kashmir ment (3) it shall come into force on such date as the central government may, by notification in the oftlc1al gazette, appoint  z in this act, unless the context otherwise requires,-deflni  tiona (a)--!!agenf!rin-relation to the  goverrunent,-_means a person (other than an employee of the government) who being employed to do any act for the government is, in doing the ect, under the order or control of the government; s (1) "emplo:yee of the government" means any person who-(i) is a member of a defence service or of a civil service of the union or of an all-india service or holds any post conneded with defence or any civil post under the union; or (ii) is a member of a civil service of a state or holds 10 any civil post under a st:lte; (c) "government", in relation to any liability imposed under this act, means-(i) where a tort is committed by an employee of the government while acting in connection with the aftairs of is the union, or by an agent or independent contractor employed by the central government, the central government; (ii) where a tort is committed by an employee of the government while acting in connection with the affairs of a state, or by an agent or independent contractor employed 20 by a state government, the state government; (d) "independent contractor", in relation to the government, means a person who contracts to do an act· for the government, but who in doing the act is not under the order or control of the government 2s liability of government in lort 3 subject to the provisions of this act, the government shall be liable in respect of any tort-(a) committed by an employee of the government or an agent employed by the government,-(i) while acting in the course of his employment; or 30 (ii) while acting beyond the course of his employment if the act constituting the tort was done by the employee or agent on behalf of the government and is ratified by the government; i (b) committed by an independent contractor employed by the government or any of his servants or workmen in doin, the 35 act contracted to be done for the government in any of the follow'idc cases (and in no others), namely:-(i) where the government assumes control of the ad £ontraded to be doneby-tbe indepeudentcodtrador; 5 (ij) where the government has authorised or ratified the act of the indepeddedt contractor alleged to constitute the tort; 10 (iii) where the act contracwd to be done although lawful'is of such a nature that unless reasonable care is taken, it is likely in the ordinary course of events to ca~ per-sodal injury or damage to property in the doing thereof and such care has not beed taken: is 20 provided that the government shall not be' liable udder this sub-clause if there is an express stipulatiod in the contract between the government and the indepeddedt codtrac-tor that-(a) reasodable care in the doing of the ad shall be taked by the indepeddedt contractor add dot by the governmedt, and (b) the indepeddent contractor shall, and the government shall not, be liable for any persodal injury or any damage to property caused in the doing of the act by the failure od the part of the indepl!ddedt codtrador' to take iueb care; (iv) where the governmedt is under a lepl obliption to  do the act itle~; (v) where any law for the time beinc in force impoaea upon the government an absolute duty to ensure the safety of persons or property in the doine- of the' act contracted to be done and there has been a failure to comply with tbat duty 4 where the government is the owder of any immovable pro- liability perty, or is in possession or occupation of, or exercises codtrol over, of gov- ill any immovable property, e government shall b1c "liable in respect ernment 35 of any breach of duty attaching by law to the ownersbip, possession, ~!e:s or occupation or control of such property in the same mander and to occupier the same extedt as a private person of full age and capacity: of inuil0v" able pro-p1'!ovided that where any such property vests in the government perty by virtue of any rule of law which operates independently of the 40 acts or intentions of the government, the governmedt shall not, by virtue 9' this sectiod~ be sub1cct to any liability in tort by reason 'oal)' of the ,preperty bebac 10 wsted, bat the provisions of this section hall be without prejudice' to the liabilltt- of the govetnment thereunder in respect of any period after the government or ad)' penon aetinc for the government hu, in fact, taken possession or control of -biiy-siich-property -;or' entered into occupation thereof , 5 the gevemment shall be liable in respect of any· personal injury or ady damage to property caused by any dangerous thing in the possession of the government or over which the government es:ereises eontrol in the same manner ami to the same extent as a private penon ,of full age and eapaelty would be liable in similar 10 eireumatadees  u he -were in possession of, or exerdsed control over, liability of government in tort in respect of escape of dangerous things mmth~ i liability of government in respect of breach df duties tioits emplo-, 8 the government shall be subject to all those liabilities in tort to which, if it were a private penon of full age and capacity, it would be subject in respect of any breach of those duties which a is person 'owes to his servants or agents under any law for the tline being in foree by reason of being their employer: provided that in' awarding c~nsation to any employee of the government or any agent employed by the government in respect of any personal injury or any damage to property caued by the ao tiream 'of 'any suehduties, tile eogri iihall· take into account the , 1iiiloioit, 'if any, paid or required to 1te paid by' the gofti'iiiilent, -wbe~ by way of"disablemmd'bedefit, compemation or otherwise, to reb employee'orllledt wider an)" other· law for the time being in force ~s 7 any enactment which negatives'or limits 1ihe 'amount of liability of an employee of the gove~llt- -6re ·arent~ employed by the government ,in r~pect of any tort committed' by such empl~yt!e' ,or agent -~, in the case of any pr08eedin~ against the  ~d\r~ent under' thi~ ~t in i1!spect of such tort, apply in relation 30 ~o the' government as it would -have applied to such employee or  agent if the proceedings against the government had been procee~ ings against that employee or agent ' aatutory limits - to the amount, of llabblity to apply to claims apinst oovt!m-d1ent ':8110 deferiees '&pen'to govem-'ment  8 in' any proceedings against the goverriment under this act, the , government slurll' be entitled to raise by way of defence the same ~s pleas which· a' private person would be entitled under law to rais~ if a similar suit had been instituted against such person indemnity 9 where the government is subject to any liability tn tort by and contri- virtue of this act, any law relating to indemnity and contribution bution shall be enforceable by or against the g-ov~ent"in respect of the 40 'mlbtlity : to which' it is so subject as if the government were a priva~ 'person' of full age and ~pacity 10 (1) ady--act--doneby a member-of the armed forces of the special union while on duty as such or by a member' of a police force while p,l'o~ "d~'1itity as sueh shall not subject either him or the government to ::stma liability ih tort for causing the deeth of another person or for to armed causing personal injury to another person, in so far as the death or forces of personal injury is due to anything suffered by that other person whilethe union he is a member of the armed forces of the union or, as the case may and pollce to be, a member of the police force ifforces is ('4) at'the time the thing is suffered by that other person he eithc!t'is on duty as- a member of the anned foreesof the union or as a m~mber of the police force or, though not on duty, is on any land~ 'premises, ship, aircraft or vehicle for the time being used for the purposes of the anned forces of the union or, as the ease may be, for the purposes of the police force; and (b) the government certifies that his suffering that thing has been or will be treated as attributable to service for the purposes of entitlement to any award under any law or scheme relating to the death or disablement of members of the force of ''ft!ch he is' 'a m~mber: provided that this sub-section shall not exer-~ a member of the armed forces of the union or a memb~r of a police fofce from' liability in tort in any ct3se in which the court is satisfied that the act was not 'conriected with the ~ectition of ius :"dtities' as a 'mem tier" of' tnbse forces' or that force '(a)no:pr~ bf tort 'shall ue 'apfnat tbe'go\remment for  _ath "oi"-periorial inj1u'y -due to any:thingswfered by  member of the'amieci f6rc~ of the union 'or a member of a police force if-30 (a) that thing is suffered by him in consequence' of the nafure or c'ondition of any such land, premises, ship, aircraft or vehicle as aforesaid or in consequence of the nature or condition of any equipmentor supplies used for -the purposes of those forces or that force; and 3-5 (b) the government certifies as mentioned in the pr~-dttlg stlb~·section; nor shall any act of an employee of the government subject him to liability in tort for death or pers~nal injury in so far as the ·g~at4'or personal injury is ,due to anything suffered: ,by a member of the armed forces of the union or by a member of a police force, being a thing as to which the conditions aforesaid are satisfied  (3) the government or an officer authorised by the government inthisbehalf;-if-satisfied-that it is the fact-(a) that a person was or was not on any particular 5 occasion on duty as a member of the armed forces of the union or as a member of a police force; or (b) that at any particular time any land, premises, ship, aircraft, vehicle, equipment or supplies was or was not or were or were not used for the purposes of those forces or that force, 10 may issue a certificate certifying that to be the fact; and any such certificate shall, for the purposes of this section, be conclusive as' to''"' --the fact which is certified (4) in this section, the werd "government" means,-(a) in relation to a member of the armed forces of the is union or of a police force maintained by the central government, the central government; (b) in relation to a police force maintained by a state government, the state government savin, u nothing contained in this act shall render the government 20 liable in respect of-(a) any act of state; (b) any act done by the government in the discharge of its functions in relation to any of the matters enumerated in entries 10, 11, 12, 13, 14, 15 and 16 of list i in the seventh 25 schedule to the constitution; (c) any act done by the president of india in the exercise and performance of the powers and duties of his offtce in relation to the summoning and prorogation of the hqlues of pvliament, the dissolution of the house of  the people, the 30 assent to, or the withholding of assent from, any bul, the retum of any bill to the houses for reconsideration of the bill or any specified provisions thereof or the issue -of any proclamation  under the constitution; (d) any act done by the governor of a state in the exer- 3s cise and perfarmance of the powers and duties of his office in relation to the summoning and prorogation of the house or houses of the legislature of the state, the dissolution of the legislative assembly, the assent to, or the withholding of assent from, any bill, the reservation of a~y bill for the con- 40 sidentiqq of the president or the return of any bill to the house or houses for reconsideration of the bill or any speci1led provisions thereof; (e) any act done under -a --proclamatioli' lsstieci wider -'the constitution; 18 of 1947 (f) any act authorised by or under the trading with the enemy (continuance of emergency provisions) act, 1m7; (g) any act done in the exercise of the powers vested in the union for the purpose of training, or maintaining the eftlciency of, the anned forces; 10 (h) any act done by a ~ of the armed forces of the union while on active service; (i) any act done by-(i) a member of a police force, or is (ii) a public servant whose duty it is to preserve peace and order in any area or place or who is engaged on guard, sentry, patrol, watch and ward, or other similar duty in relation to any area or place, for the prevention or suppression of a breach of the peace, or a disturbance of the public tranquility, or a riot, or an aftray, or for the prevention of any offences~gainst public property; 20 (j) any act done or ordered to, be done by a judge, magistrate, or any other person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him; 2s (k) any act in connection with the execution of lawful warrants or orders of a judge, magistrate, or any other person discharging' or purporting to discharge any responsibilities of a judicial nature vested in him, done by any person bound to execute the warrants or orders; 13 of 1885, 30 6 of 1898 (z) any act for which immunity is granted under th:e indian telegraph act, 1885, the 4indian post office act,' 1898, or under any other enactment for the time ~eing in force; i dol 1890 (m) any act in respect of which a remedy is provided under the indian railways act, 1890, or under any other enact· ment for the time being in force; (n) any personal injury or any damage to property caused by an act which by its nature is likely in the ordinary course of events to cause such injury or damage, if the doing of the act is authorised by any enactment for the time being in force; (g) any claim arising out of defama1doa, malicious p308e cution or malicious arrest; -(po) any c1aim--~out of the operation -otany quarantine law; (q) any claim arising in a foreign country pendina proceedinp 12  the provisions of this act shall not affect any proceeding! by or against the government which have been instituted before the commencement of' this act, and such proceedings shall be dispoaed of as if this act had not been passed  13 in the fatal accidents act, 1855, in section 4, for the words 10 'the word "person" shall apply to ·bodies politic and corporate', the   following shall be substituted, namely:-amendment of act 13 at 1866 'the word "person" shall apply to bodies politic and corporate and the government· the law relating to the liabit=ty of the government for torts or civil wrongs is in a state of uncertainty this uncertainty ,has been occasioned by conflicting judicial decisions in view of' this uncertainty, the matter was referred, on the initiative of the late president of india, dr rajendra prasad, to the law commission for consideration and report the law commission examined the matter in detail and after having made a general survey of the law with respect to liability of the ~t in tort in various countries such as the united kingdom, united states of america, canada, australia, france, etc, recommended that legislation should betindertaken in india for defining the liability of the government in tort and formulated for this purpose certain specific proposals based mainly on the uk crown proceedings act, 1947 while these proposals were under the active consideration of the government, the question of the extent of liability of the government in tort came up for consideration before the supreme court in state of rajasthan v mat vidyawathi-i962, supp 2 scr 987 in that case it was held by the supreme court that in india, ever since the time of the eest india company, the sovereign has been held liable to be sued in tort ()r in contrac~, and that'the common~ law immunity , never operated in india but, in a more recent case-ralia ram t1 the state of uttar pradesh, 1965, 1 sca 809, the supreme court has held that the distinction between sovereign and non-sovereign functions of the government even now obtains in india and that, therefore, the state is liable for tortious acts committed by its employees only if such acts are committed in the discharge of functions which are not sovereign the court, however, was not satisfied with this state of law and urged that the matter should be set right without delay by legislation, as has been done in the united kingdom by the crown proceedings act, 1947 the proposed legislation which seeks to implement, subject to some modifications, the recommendations of the law commission in its report on the liability of the state in tort, is intended to give effect to the suggestion of the supreme court i'·' '!" 2 the recommendations of the law commission, as given effect to in the bill, may be categorised as follows:-(i) in the first place, there 1s the liability of the government to third parties for torts committed by its employees and agents here, the government, like any private individual, should be vicariously liable to third parties for torts committed by its employees- and-agents in the course- of their- employment or for torts committed by its employees and agents on behalf of the government and subsequently ratified 'by the government this recommendation has been embodied in clause 3 (a) of the bill (it) in the second place, there is the liability of the government to third parties for torts committed by an independent contractor employed by the government and his servants and workers here, the government, like any private individuaj, should be liable to third parties only "ill cases specified in clause 3'(b) of the bill cui) in the third place, there are common law duties attaching to ownership, occupation, possession or control of property here also, the government, like any private individual, should have certain duties when it is the owner of any immovable property 01' in possession or occupation of, or exercises control over, any immovable property clause 4 of the bill gives e1fect to this recommendation (iu) in the fourth place, there is the liability of the government in tort in reaped of escape of dangerous things here also, the government, like any private individual, should be liable in respect of any personal injury or any damage to property caused by ey dangerous thing in the possession of the government or over which the government exercises control clause 5 of the bill gives effect to this recommendation (v) in the fifth place, there is the liability of the government towards its own employees and agents here also, the government, like any private individual, should be liable to its own employees and agents for any injury caused by the failure of the government to take the requisite care clause 6 of the bill gives effect to this reconunendation (ui) in the sixth place, the other recommendations of the law commission which are of an incidental, ancillary or minor nature have been incorporated in clauses 7, 8 and 9 of the bill (vii) clause 10 of the bill makes certain special provisions as to armed forces of the union and police forces and clause 11 provides for a number of savings and exceptions 3 'fhe notes on clauses explain in greater detail the various provisions of the bill and also indi( ate the deviations made from the recommendations of the law commission and the reasons for the deviations the notes also make feference to relevant provilions of the uk crown proceedings act and important oases od the subject new delhi; a k sen the 12th august, 1965  president's recommendation under article 11'1 of the constitution of india[copy of letter no f 11 (2) 59--leg n, dated the 24th august, 1965 from shri jaganatha rao, deputy minister of law to the secretary, lok sabha, new delhi] the president having been informed of the subject matter of the government (liability in tort) bill, 19~ recommends to the ~k sabha, under clause (3) of article 117 of the constitution, the cod-sideration of the bill clause 2-this clause contains the definitions of imp'u1ant words and expressions used in the bill some of which are based on the definitions suggested in paragraph 66vi of the report of the law commission on liaobility of the state in tort (hereinafter referred to as the "report") the law commission has suggested that "agent" shall have the same meaning as in the indian contract act, 1872 but this suggestion has not been accepted as "agent" as defined in the indian contract act is wide e~ough to include an "isle pendent contractar" also in the law of contract an "independent contractor" may be regarded as an "agent" but in the law of tort there is an assential difference between an "agent" and- ian "independent contractor", but there is no such di1ference between an "agent" and a "servant" it is thus stated in clerk and lindsell on tarts (11th ed at page 116) while drawing a distinction between a "servant" and "contractor"-"of the former class (servants) those whose employment is more or less continuous are usually styled servants while those whose employment is intermittent or confined to a particular occasion are usually calied by the generic name of agents between servants, however, and other agents over whom the employer reserves control, there is no distincti6n in point of law; the employer is liable for the torts of the one to the same extent and subject to the same conditions as he is liable for the torts of the other for the sake of brevity, therefore, it may be convenient to speak of all those classes of agents over whom the employer reserves control as servants in contra~tinction to contractors over whom such control is not reserved" [see also ibid p 135, salmond on the law of torts (12th ed pp 104 et seq); pollock's law of torts (15th ed, pp 62 and 63); fleming, the law of torts, p 357; street, law of torts (1963), chap xxvii; performing right society, ltd 11 mitchell (1924), 1 kb 762· in this case the distinction between a searant and an independent contractor has been clearly brought out with reference to general principles laid down by well-mown authorities; see also the case of honeywilland stein, ltd v larkin brothers, ltd (1934) 1 kb 191 (ca~· \a~ 196, 197] the definition of "employee of the government" is based on article 310 of the constitution the deftnitton of "independent contractor" hu bee!l explained above the exact definition of "tort" is well nigh impossible as pointed out by tbe law commissipd, 8i!<lt!!~ref9~~ has n()tbeen attempted clouse 3-sub-clause (a) gives effect to the recommendation in paragraph as i (i) of the report and is modelled on section 2 (1) (a) of the uk crown proceedings act, 1947 (hereinafter r-eferred to as "the uk act") -  this provision seeks to implement in relation to the government the common law provision that a master is vicariously liable to third parties for torts committed by his servants and agents in the course of· theill' employment or for torts codll!l!itted by his servant:l and agents for the master's benefit and subsequently ratified by the master both in relation to an employee of the government and an agent of the governmen~, the expression "in the course of his employment" has been used there is no differellce between "course of his employment" ~d "scope of his authority" uscope of employment", "course of employment", "scope of authority" and "scope of service" mean practically the same thing ai?, stated in winfield on tort (seventh edition), p 741, "course of employment seems to have supplanted scope of authority" these expressions are the formulae which are employed to indicate the outward limits of responsibility of the employer for the torts of his ~rvants or agents ai?, fleming states in his "law of torts" at p 365,-"that phrase (course of employment) like its variants "scope" or "sphere of employment" is the formula which is employed to indicate the outward limits of responsibility for the unauthorised w~ongdoing of a servant and represents the judicial compromise between the "social necessity" of making a master answerable for the injury occasioned by servants entrusted with the power of acting in his business and the feeling that it would be unjust, and indeed undesirable, to make him responsible for every act which the servant chooses to do" the proviso to section~ (1) (a) of the uk ·~t has been omitted for the reasons given in paragraph 19 of the report sub-clause (b) implements paragraph 66 i (iii) of the report read with appendix vib thereto compare in this connection section 40(2) (d) of the uk act see in this connection clerk and lindsell on torts (eleventh edition), p 137 the proviso to item (iii) of sub-clause (b) is, however, new because it is felt that it will noi be fair and proper to make the government liable under this item if there is an express stipulation in the contract between the govamment and the independent contractor that reasonable care in the doing of the __ aclshall_be_talten by_thecontractor and not by the government and the independent contractor shall, and the government shall bot, be liable for any personal injury or any damage to property caused in the doing of the act by the failure on the part of the independent contractor to take such care the recommendation of the law commission (vide paragraph 66: 1 (i) of the report that the government shall be liable for torts committed iby employees or agents of public corporations or government companies, has not been accepted because government corporations or com~es are separate juridical persons an<t1:hete is no reason why the government should be liable for the torts committed by the employees and agents of such corporations or companies clause 4-this clause implements paragraph 661 (v) of the report read with appendix vie thereto see also paragraph 24 of the report this clause corresponds to section 2 (1) (c) and section 40 (4) of the uk act see in this connection clerk and lindsell on torts (eleventh edition), chapter 18, and winfield on torts (seventh edition), chapter 12 clause 5-this clause implements par&graph 661 (vi) of the report -read with appendix vie (4) ·,thereto! the -recommendations of the law commission in paragraph 66ii (ii) to (v) have been criticised as being rather too wide it would appear that the position would be the same even if these recommendations were not implemented accordingly, these recommendations have not been included in any clause of the bill it has, however, been provided by sub-clause (n) of clause 11 that the government shall not be uable in respect of any personalinjury or any damage to property caused by an act which, by its nature is likely in the ordinary cours of events to cause such injury or damage, if the doing of the act is authorised by any enactment for the time ·being in force this implements paragraph 66 ilii} of the report clause 6-this clause implements paragraph 661 (ii) of the report read with appendix vid thereto and follows section 2 (1) (b) of the uk act and is based on clerk and lindsell on torts (eleventh edition), pp 390--395 a proviso, has, however, been added that in awarding compensation to an employee of the government the court shall take into account any amount payable under any other law [such as the extraordinary pension rules, the personal injuries (emergency provisions) act, 1962, the personal injuries (compensation insurance) act, 1963, etcl to -such-employee- byway of com- --pensation, disablement benefit, etc recommendation of the law commission in paragraph 66111 of the report has not been included in the bill the law commission without assigning any reason has simply recommended that a provision may be made on the lines of section 3 of the uk act in view of the special powers conferred on the government by section 21 of the patents and designs act, 1911 and section 20 of the atomic energy act, 1962,' in relation to patents, designs, etc, there is hardly any practicalaity for such a provi:sion even in regard to section 3 of the uk act, prof glanville l williams in his booklet on crown proceedings, p 59, observes that there is little scope in the case of patents and designs, etc, for infringement actions notionally given by this clause, to operate implementation of this recommendation may introduce avoidable uncertainty and complications in the matter clause 7-this clause implements paragraph 6611 (vi) of the report and is modelled on section 2 (4) of the uk act clause 8-this clause implements the observations at the end of paragraph 661 of the report clause 9-this clause impleii1tnts paragraph 66 iv (i) of the report and is modelled on section 4 of the uk act clause 10-this clause implements paragraph asv (iv) (c) and is modelled on section 10 of the uk aet, but there is a di1ference the members of the police forces also have been brought within the purview of this clause, the reason being that in principle, the case of a police constable is not distinguishable :flrom that of a soldier, especially when the police force to which he belongs is maintained by the state vide attorney general for new south wales vb p~r­petual trustee & co (1955), 1 all er 846 (pc) at pp 857-58 in :h~ uk act, the members of the police force have not been brought within the purview of section 10 of that act mainly because the police forces: thei~ are maintained by tille-local authorities, the onjy exception being the metropolitan police which is under the secretary of state for home affairs clause h-this clause implements paragraph 66v of the report and saves the government from liability in respect of a large number of acts detailed therein clause 12-this clause saves pending proceedings clause 13-~ clause makes a consequential and necessary amendment in the fatal accidents act, 1855  financial memorandumthe bill seeks to define the liability of government in tort it is not possible to assess the financial liability which government will incur on the bringing into operation of this bill when enacted, as a result of the torts committed by the government or its employees, agents and contractors that will depend on various factors, such as the number of torts committed, the number of suits instituted against the government ancktll&'number of'decrees for compensation passed in those suits against the government as it is not possible to foresee and visualise any of these matters, no estimate of the expenditure involved out of the consolidated fund of india (in case of the liability of the central government) is possible '  ,  erraact nom the fatal accldj:n'1's act, 1855 ------- (13 oj' 1855) - • - • •4 the followin, words and expressions are intended to have the l'nterpn-meanings hereby assigned to them respectively, so far as- such mean-= ings are not excluded by the context or by the nature of the subjeetmatter; that is to say the word "person" shall apply to bodies politic and corporate; and the word "parent" shall include father and mother and grand-father and grand-mother; and the word "child" shall include son and daughter and grand-sod and grand-daughter and step-sod and step-daughter ~   billto define and amend the law with respect to the liability of the government in tort and to provide for certain matters connected therewith (shri asoke k sen, minister of lil'id and social security) 