vicarious liability of state and sovereign immunity

VICARIOUS LIABILITY OF STATE AND SOVEREIGN

IMMUNITYRESHMA SURESH

ROLL NO: 8853rd SEMESTER

VICARIOUS LIABILITY OF GOVERNMENT FOR THE TORTS COMMITTED BY ITS SERVANTS ‘Rex non potest peccare’ (The King can do no wrong) is an ancient and fundamental principle of the English Law which meant that if a tort was committed by the King or the King’s servants in the course of employment, the injured has no right to sue the king under the vicarious liability. This immunity was available only in relation to torts, but not for breach of contract and recovery of property. The courts in various decisions criticized this exemption given to the king, opining that it was against the principles of equity, good conscience and justice. Hence, the British Parliament passed ‘The Crown Proceeding Act, 1947’ by abolishing the maxim ‘king can do no wrong’. Now, the crown can also be sued for his servants’ tortuous acts committed in their course of employment under the principle of ‘Respondent superior’.

In India, the crown assumed sovereignty of India in 1858 and took over the administration of India from the hands of the company. The Act declared that the Secretary of State in Council to be a body corporate for the purpose of suing, and being sued. This concept was reproduced in Government of India Act, 1915 which declared in its Section 32 thus:

“(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 provision was again reproduced in Section 176(i) of the Government of India Act, 1935 thus:

“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 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 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 case as the Secretary of State for India-in-Council might have sued or been sued in this Act has not been passed.”

This very provision has been incorporated in Article 300(i) of the Constitution of India:

“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 Domination of India and the corresponding Provinces or the corresponding Indian states might have sued or been sued if the Constitution had not been enacted.”

Neither the Legislature of the States nor the Parliament has made any Law as contemplated by clause (1) of Article 300 of the Constitution of India. The present position is that the State would be liable for damages, if such suit could be filed against the corresponding province.

Case Law of Government liability in tort before the commencement of the Constitution

The first leading case on the point is Peninsular and Oriental Steam Navigation Company v. Secretary of State for India-in-Council. In this case the servants of the plaintiff’s company were proceeding on a highway in Calcutta driving a carriage and were passing by the Kidderpore Dockyard which was a Government property. The servants of the Government Dockyard were carrying a piece of iron funnel in the centre of the road. Due to negligence on the part of the defendant’s servants the funnel fell down and its clang frightened the horse and it injured. The plaintiff sued the Secretary of State for India-in-Council for the damage. An act was brought for recovery of the damages of Rs.350 against the Secretary of State for India-in-Council, as employer of the workmen.

It was held, that maintenance of the Dockyard was considered to be a non sovereign function and as such the Government was held liable. As the impugned act fell within the non-sovereign functions, the action was maintainable.

In Secretary of State v. Cockraft, it was held that maintenance of a military road is a sovereign function and the Government is not liable for the negligence of its servants in stacking of gravel on a road which resulted in a carriage accident causing injuries to the plaintiff.

After the commencement of the Constitution – Cases

In State of Rajasthan v. Vidyawati, a temporary employee of Rajasthan Government while driving a Government jeep car from workshop after repairs knocked down a pedestrian, by rash and negligent driving. The pedestrian sustained multiple injuries as a result of which he died. In the suit by his widow against State of Rajasthan for damages the Supreme Court held that the State was liable because the accident took place while the car was returning from workshop which was not an act in the exercise of sovereign function.

(2) In Kasturi Lal v. State of U.P., a person was taken into custody on suspicion of being in possession of stolen property and taken to a police station. His property including certain quantity of gold and silver was taken out of him and kept in Malkhana till the disposal of the case. The gold and silver was misappropriated by a police constable who flew to Pakistan. The appellant sued the State of Uttar Pradesh for returning of the gold and silver and in the alternative, claimed damages for loss caused by negligence of Meerut police. The Supreme Court held that the State was not liable as the act of negligence was committed by the police officers in the exercise of sovereign powers. By holding the power to arrest a person, to search him, and to seize property found with him are powers conferred on the Police Officers by statute as sovereign powers.

In Shyam Sundar and others v. The State of Rajasthan, Navneetlal, an employee of the State of Rajasthan was, at the material time, working in the office of the Executive Engineer, Public Works Department, Bhilwara, as a storekeeper. In connection with the famine relief work undertaken by the department, he was required to proceed to Banswara. For that purpose, he boarded a truck owned by the department from Bhilwara and reached Chittorgarh in the evening. After having travelled for 4 miles, the engine of the truck caught fire. The driver cautioned the occupants (i.e. Navneetlal and other three other persons) to jump out of the truck. While doing so, Navneetlal struck against a stone lying by the side of the road and died instantaneously. The Supreme court held that it is not a sovereign function of the state and could be undertaken and done even by a private authority.

Sovereign power Every State exercises sovereign power in its

territory. In performing its functions, it enjoys sovereign immunity. This sovereign immunity is necessary for its existence and functions. However, the State should follow the following conditions:

(1) The employees of the State must exercise the sovereign functions legally. If they violate the law, their act cannot be treated as an act of sovereign function, and the State shall be held responsible.

(2) The State is liable for the torts committed by its servants in exercise of non-sovereign powers. The State is not liable for the torts committed by its servants in exercise of sovereign power.

(3) Maintenance of law and order, services of defence forces, administration of justice etc. are considered to be the sovereign functions.

ACTS COMMITTED IN THE EXERCISE OF SOVEREIGN POWERS. In State of Orissa v. Padmalochan [AIR

1975 Ori. 41], A mob emerged on the scene of the office of the Sub-Divisional Officer, Orissa to protest. Military Police and some police personnel manhandled some persons of the mob resulting in injury to plaintiff. The Court observed that although police personnel manhandled the plaintiff without permission of the Magistrate but it occurred while the sovereign power.

In Baxi Amrik Singh v. Union of India, the driver, Amrik Singh who was in the car received serious injuries when an accident happened with the military truck, which was driven by the driver, who was an employee of military department. Amrik Singh brought an action against the department. The Court observed that the driver was on duty to check army-personnel-on-duty throughout the day and he was discharging the sovereign power. It was held since the military driver was acting in discharge of a sovereign function of the State, the Union of India was not liable for injuries sustained by Amrik Singh as a result of rash and negligent driving of the military driver.

In Union of India v. Harbans Singh, meals were being carried from the cantonment, Delhi for distribution to military personnel on duty. The truck carrying meals belonged to the military department and was being driven by a military driver. It caused an accident resulting in the death of a person. It was held that the act was being done in exercise of sovereign power, and, therefore, the State could not be made liable for the same.

In State of M.P. v. Chironji Lal, the police lathi charged an unruly mob consisting of the students. In that agitation the students hired the loud speaker of the plaintiff. In the lathi charge, the plaintiff’s loud speaker was damaged. He sued the State Government for compensation. It was held that the State Government was not liable to pay compensation to the plaintiff as its employees (police officers) did the act in exercising the function of sovereign.

ACTS COMMITTED IN EXERCISE OF NON-SOVEREIGN POWERS

The performance of only such acts can be said to be in exercise of the sovereign powers which could not be performed under the statute by any individual other than the persons who allegedly perform the same. The traditional sovereign functions are the making of laws, the administration of justice, the maintenance of order, the repression of crime, carrying on of war, the making of treaties of peace and other consequential functions. Whether this list be exhaustive or not, it is at least clear that the socio-economic and the welfare activities undertaken by a modern State are not included in the traditional sovereign functions and are considered as non-sovereign powers.

In Union of India v. Sugrabai, a military driver was driving a truck carrying machine from military depot to military school of army. The driver killed a cyclist by rash and negligent driving. The Court held that it was a function which could be performed by a private person and hence the Government was liable by holding that was not acting in the exercise of the sovereign functions.

In Satyawati Devi v. Union of India, Air Force personnel played the game and returned by a bus. The bus driver drove the bus negligently causing the death of the husband of Satyawati Devi. The Central Government pleaded that the accident was occurred during the sovereign function and that too for defence purpose as physical exercises were necessary to keep the personnel in shape. But, the Court rejected the Government’s contention and held that the act carrying the teams to play matches could be performed by a private individual and, therefore, it was not sovereign function and the Government was liable.

In Union of India v. Savita Sharma, it was held that the driving of a military truck to Railway Station to bring the jawans to Unit Headquarters is an act of non-sovereign function and, therefore, if the respondent gets injured while the truck is being so driven, she is entitled to get compensation.

In Union of India v. Abdul Rehman, it was held that the driving of a water tanker belonging to Border Security Force (BSF) by a BSF driver is a non-sovereign function, and the State is liable for the damage caused by the negligent driving of the tanker.

In The ‘Ad hoc’ Committee, the Indian Insurance Company Association Pool, Bombay v. Smt. Radhabhai, a motor vehicle belonging to the State and the relevant time allotted to the Primary Health Centre, Nanipur, was involved in an accident in which one Babulal died. Babulal’s wife and son brought an action to recover damages. At the relevant time the vehicle was proceeding to a place where some children were seriously ill with a view to bring them for a treatment at Nanipur. It was held that the medical relief work undertaken by the State through the Primary Health Centre, Nanipur, in which the vehicle in question was engaged at the time traditional sense and the State was held liable.

On the basis of Supreme Court decisions on vicarious liability of State for the acts of its servants, following principles emerge as per Dr. S.K. Kapoor:

(i)The Union of India and the State have the same liability for being sued in tort committed by their servants which the East India Company had.

(ii) The Union and the States are liable for damages for injuries caused by their servants if such injuries would render a private employer liable.

(iii) The Government is not liable for tort committed by its servants if the act was done in exercise of sovereign power.

(iv) Sovereign powers mean powers which can be lawfully exercised only by a person by virtue of delegation of sovereign powers.

(v) Government is vicariously liable for tortious acts of its servants which have not been committed in exercise of sovereign functions.

(vi) The Court is to find out in each case if the impugned act was committed in exercise of delegated sovereign power.

(vii) No well defined tests as to the meaning of sovereign power have been attempted or can precisely be laid down. Each case must be decided on its own facts. Functions relating to trade, business and commercial undertakings and other socialistic activities by a welfare State do not come within the purview of delegated sovereign authority.

(viii) The sovereign function of the State must necessarily include the maintenance of the army, various departments of the Government, for maintenance of law and order and proper administration of the country which would include magistracy and police and the machinery for administration of justice.

(ix) Where the employed in the course of which a tortious act is committed is of such a nature that any private individual can engage in it, then such functions are not in exercise of sovereign power.

(x) In determining whether immunity should be allowed or not, the nature of the act, the transaction in the course of which it is committed, the nature of employment of the person committing it and the occasion for it have all to be cumulatively taken into consideration.

Even after suggestion made by the Supreme Court, the Parliament is yet to change the existing law, due to which citizens are still suffering. A new line of action under writ jurisdiction (Arts. 32 and 226) has been adopted to render justice and compensate those whose fundamental right to life and personal liberty under Article 21 (or any other fundamental right) of the Constitution of India, are violated by the wrongful acts of Government officials or servants while performing even sovereign functions.

In Nilabati Behra v. State of Orissa, petitioner’s son died as a result of injuries inflicted on him in police custody. The petitioner sent a letter to the Supreme Court regarding all his suffering. The Supreme Court treated it as a petition under Article 32 of the Constitution. The Court held the State of Orissa liable and awarded a compensation to the petitioner. Justice Verma observed, “Award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort.

In State of Madhya Pradesh v. Shatibhai, police fired in air to disperse mob. Plaintiffs who were standing on roof of their houses sustained injuries from bullets fired in the air. The police officers were aware of their presence. It was held that the Police Officers had the duty to take care that no injury caused to persons living in nearby houses. The Police Officers were negligent towards plaintiffs and hence were held liable to pay compensation under Article 21.

In Bhim Singh v. State of J &K, the petitioner (Bhim Singh), who was a member of the Legislative Assembly was arrested by police officers whiole he was on his way to Srinagar to the State (Police) deprived the petitioner’s Fundamental Right under Articles 21 and 22(2) and the State was held liable. The Court granted compensation to the petitioner.

In Kalawati v. State of Himachal Pradesh, two persons died in aGovernment Hospital owing to negligence of hospital staff who administered nitrous oxide in place of oxygen to the patients. The Court awarded compensation under Article 21.

In Saheli v. Commissioner of Police, Delhi, the Supreme Court awarded the compensation of Rs. 75,000/- to the mother of the boy aged 9 who died due to beating and assault by a Police Officer, in the writ filled by the women’s Civil Rights Organisation, known as SAHELI.

In C. Ramkonda Reddy v. State of A.P.certain miscreants entered the jail with the help of a ladder at night and hurried bombs on inmates, resulting in the death of one of them and injury to another. As there was considerable violation of the right to life guaranteed by Art. 21, the claim for compensation was allowed. It was observed that even if the State is acting in exercise of sovereign power, it would be liable if Article 21 is violated, as Article 300(1) does not constitute an exception to Article 21.

DEFENCE OF SOVEREIGN IMMUNITY

Sovereign The term ‘sovereign’ means a political

superior who is not subject to any other political superior. The term ‘sovereign’ is used in England to designate the King or Queen of the United Kingdom. ‘Sovereign’ is a person; body or State in which independent and supreme authority is vested. He is a chief ruler with supreme power; a King or other ruler with unlimited power, supreme civil, military, and political power; the person or body of persons in whom the ultimate authority of law rests.

Immunity Immunity is a personal favour

granted by law contrary to the general rule. Immunity is the freedom from liability; exemption conferred by a law, from a general rule. An immunity is a right peculiar to some individual or body; an exemption from some general duty or burden; a personal benefit or favour granted by law contrary to the general rule.

Sovereign immunity Sovereign immunity was developed on the divine right of Kings and the maxim ‘Rex non potest peccare’ i.e. the King can do no wrong. The meaning of this legal maxim is multi-faceted- (i) The sovereign, individually and personally and also in his natural capacity as the King cannot be sued by any earthly power or cannot be amenable to any jurisdiction. (ii) The public affairs are not to be imputed to the King, so as to render him personally answerable for it to his people. (iii) The prerogative power of the crown does not injure anybody in the country. (iv) The King cannot sanction any act forbidden by law. He is bound by the law. He is under the law but not above the law.

Under the common law of England, the King cannot be made liable for any wrong done as he is above laws and that everything he does is of course just and lawful. It only means that the sovereign individually and personally, and in his natural capacity, is independent of, and is not amenable to any other earthly power or jurisdiction, and that his act related to public affairs is not to be imputed to the King so as to render him personally answerable for it to his people. The King could not be sued in his own Courts. Petition of right was the only remedy available against the crown. It was available for a breach of contract or for recovery of goods, money or land wrongfully taken by the Officers of the crown. The King cannot be made liable for wrong done by his servants who are acting under express or implied authority. The crown was immune for the torts of its servants.

Sovereign immunity means, an act of sovereign authority of a State which cannot be challenged, or interfered with by municipal Courts. It may be known as an act of the executive of a State or it may be called as ‘sovereign immunity’. When there was an act by a sovereign State on its own citizen either the municipal Courts or any other State cannot question the act. It means, the sovereign immunity saves the State and its employees from the tortious liability.

Act of State means an act of the executive i.e. the sovereign power of a country, that cannot be challenged, controlled or interfered with by municipal Courts. Its sanction is not that of law but that of sovereign power and, whatever it may be, municipal Courts must accept it as it is, without question.

In Buran v. Denman the plaintiff (Buran) owned slave Barracoons in the West Coast of Africa. It was situated outside the dominion of Britain. The defendant ( a Captain in the British Navy) attacked the plaintiff’s barracoons and burnt it and released all the slaves in it. The act of the defendant was ratified by the British Government. The plaintiff sued the defendant for compensation, the defendant contended that his act was ratified by the State hence he was not held liable. The House of Lords held that the ratification for the act committed by the defendant was valid, hence it was an act of State. It was held that the defendant was not liable to pay compensation to the plaintiff.

SOVEREIGN’S PERSONAL IMMUNITY A sovereign prince or the other person representing

an independent State is not liable to be sued in the Courts of the land unless he submits to its jurisdiction. The reason for this is expressed by the Court of Appeal thus; “As a consequence of the absolute independence of every sovereign authority, and of the international comity which induces every sovereign State to respect the independence and dignity of every other sovereign State, each and everyone declines to exercise, by means of its Courts any of its territorial jurisdiction over the person of any sovereign or ambassador of any other State or over the public property of any ambassador, though such sovereign, ambassador or property be within its territory and therefore subject to its jurisdiction.”

In Feather v. The Queen, it was held that no proceeding, civil or criminal, is maintainable against the sovereign in person. In tort, even the remedy by petition of right is not available. However, if the King obtains loans from individuals for his personal needs, those individuals can sue the King for the recovery of the money and thereby, the defence of sovereign immunity does not indemnify the King. If the King personally commands ‘A’, a servant to do an unlawful act, the offence done by ‘A’ is not indemnified.

In India, there is provision for immunity of President and the Governor under the Indian Constitution under Article 361, but a distinction is made between acts done by them in their public and personal capacity.

(a)For acts done or purported to be done by them in their public capacity their immunity is absolute, and no action lies against them in a Court of law.

(b) For acts done by them in their personal capacity i.e. as individual, there is no such immunity but a suit would lie only if two months’ notice in writing has been delivered to them, stating the nature of the proceeding, cause of action, etc.

SOVEREIGN IMMUNITY FOR TORTIOUS ACTS OF PUBLIC SERVANTS

At Common Law, the immunity of the crown extended to wrongs committed by the servants of the crown. Hence, neither the crown nor any Department of the Government was liable for wrongful acts of public servant. But the Crown Proceedings Act, 1947 was passed and it has changed the position completely, now the crown can be held liable for torts committed by its servants. The Act provides that the crown shall be subject to all liabilities to which a private person of full age and capacity would be subject, in respect of- (a) torts committed by its servants; (b) any breach of those duties which a person owes to his servants at common law by reason of being their employer; and

(c) any breach attaching at common law to ownership, occupation or possession of property. The crown will also be liable in respect of a failure to comply with any statutory duty which is binding upon it as well as upon persons other than the crown and its officers. The expectations to this liability are- No proceeding will lie in respect of- (i) any act or omission by any person discharging judicial functions; (ii) death or personal injury caused by or suffered by members of the armed forces on duty and acting in the discharge of their duties; (iii) anything properly done or omitted in exercise of the prerogative or statutory powers of the crown.

It is also to be noted that the liability of the crown is confined to wrongs committed by its servants and agents and does not extend to those committed by the servants of statutory corporations and other bodies which function outside ministerial control. In India, Article 300 of the Constitution of India provides that subject to any law that may be hereafter made by Parliament or a State Legislature, the Government of India or of a State may sue or be sued in relation to their respective affairs in like cases where the Dominion of India or a Provincial Government might sue or be sued, had not this Constitution been passed.

DEFENCE TO SOVEREIGN IMMUNITY

Every State exercises sovereign power in its territory. In performing its functions, it enjoys sovereign immunity. This sovereign immunity is necessary for its existence and functions. The sovereign immunity is available for the exercise of sovereign powers only. Maintenance of law and order, services of defence forces, administration of justice, etc. are considered to be the sovereign functions. The sovereign immunity is not available for the torts committed by its servants in exercise of non-sovereign powers. The employees of the State must exercise the sovereign functions legally. If they violate the law, their act cannot be treated as an act of sovereign function and hence, no sovereign immunity.

The following sovereign functions are entitled for the sovereign immunity as per the judgments of Courts and no action lies against the Government for injury done to an individual in the course of exercise of the sovereign functions of the Government: i) commandeering goods during war; ii) making or repairing a military road; iii) administration of justice; iv) improper arrest, negligence or trespass by the Police Officers; v) wrongful refusal by Officers of a Revenue Department to issue license to the plaintiff, causing him damage;

vi) negligence of Officers of the Court of Wards in the administration of an estate under its charge;

vii) wrongs committed by Officers in the performance of duties imposed upon them by the Legislature, unless the statute itself prescribes the limits or conditions under which the executive acts are to be performed;

viii) loss of movables from Government custody owing to negligence of Officers;

ix) payment of money in custody of Government to a person other than the rightful owner, owing to negligence of Officer in the exercise of statutory affairs, where Government does not derive any benefit from such transaction.

Defence of sovereign immunity is limited only to primary and inalienable functions of Constitutional Government. Suit filed by any person for negligence of Officer of State in discharge of statutory duty under a law not referable to primary function cannot be dismissed on the ground of sovereign immunity, since the demarcating line between the sovereign and non-sovereign functions has disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of criminal which are among the primary and inalienable functions of a Constitutional Government, the State cannot claim any immunity. The State may enact a law and may delegate its functions for proper exercise of primary functions like maintenance of law and order or repression of crime, violation of which may not be sued in torts, unless it trenches into and encroaches on the fundamental rights of life and liberty guaranteed by the Constitution.

In N. Nagendra Rao & Co. v. State of A.P, the commodities seized under the Essential Commodities Act, 1955 and ordered to be returned, were deteriorated in quality and quantity due to negligence of Officers of State. The suit for price of the damaged commodities cannot be dismissed on the ground of sovereign immunity, because the seizure and confiscation under the Act was not in exercise of power which could be considered to be an act of State of which no cognizance could be taken by the Civil Court.

A law made by a legislature may be bad or may be ultra vires, but since it is an exercise of legislative power, a person affected by it may challenge its validity but cannot approach a Court of Law performed by the State either in its legislative or executive capacity it should not be answerable in torts.

Acts such as defence of the country, raising armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are functions which are indicative of external sovereignty and are political in nature. Therefore, they are not amenable to the jurisdiction of ordinary Civil Court. No suit under the Code of Civil Procedure would lie in respect of it. The State is immune from being sued, as the jurisdiction of the Courts in such matter is impliedly barred.

Under some circumstances, the defence to tortious liability is available to an executive to play with the people of its country and the State is entitled to act in any manner, as it is sovereign. In State of Assam v. Md. Nizamuddin Ahmed, it was held that the seizure of seed by the State was in exercise of the sovereign power and if they suffer damage when kept in police station, the plaintiff was not entitled to collect damages from State. The claim of plaintiff for damages with interest for alleged illegal seizure was rejected.

[AIR 1999 Gau. 61]

In Pagadala Narasimham v. Commr. And Special Officer, Nellore Municipality, Nellore, it was observed that the State nor its Officers were held liable where the traffic police, with the help of municipal staff, removed a non-working bus parked on the road causing obstruction to traffic. No liability could be fastened against the Officers of State in discharge of their duty. If the seizure and detention of vehicle is illegal, a claim may be made against the State. As per the doctrine of defence of sovereign immunity no action is maintainable against the State for things done in exercise of its sovereign functions.

On the other hand, the defence of sovereign immunity is not available to the State for wrongs done by public servants in the course of transactions which a trading company or a private person could engage in, such as the following; i)injury due to the negligence of servant of the Government employed in a dockyard; ii) trespass upon or damage done to private property in the course of a dispute as to a right to land between Government and the private owner, iii) whenever the State has benefited by the wrongful act of its servants whether done under statutory powers or not, the State is liable to be sued for restitution of the profits unlawfully made, just as a private owner e.g. where Government retains property or moneys unlawfully seized by its Officers, a suit lies against the Government for its recovery, with interest; iv) defamation contained in a resolution issued by Government.

In State of Rajasthan v. Vidhyawati, a jeep was maintained and used by the District Collector. The jeep driver drove the jeep in a rash and negligent manner and caused an accident resulting in the death of the husband of the plaintiff. The widow sued the State Government for damages. The State Government pleaded the defence of sovereign immunity. The Supreme Court gave the judgment in favour of the widow and ordered the appellant/defendant i.e. the State of Rajasthan to pay damages to her as the State of Rajasthan cannot escape liability so long as there is nothing to show that the predecessor, the Union of Rajasthan was not liable by any rule of positive enactment or by the Common Law.