STANDING OF A PERSON IN TORT

Prof. (Dr.) C J Rawandale,

Professor, Symbiosis Law School, NOIDA
 • Who Can Sue?
• Who Cannot Sue?
• Who Cannot Be Sued?

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 2

WHO CAN SUE?
Locus Standi
 ¡ All persons have capacity to sue and be sued in tort.
This, however, is a general rule and is subject to
Traditional View In Private modification in respect of certain categories of
Litigation persons.

¡ Locus Standi means ‘legal capacity to challenge

an act or decision’.

¡ This traditional rule of locus standi is that judicial

redress is available only to person who has suffered
legal injury.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 4

 • Traditionally it was only a person who has suffered a
specific legal injury by a reason of actual or
threatened violations of a legal right or legally
protected interest who could bring an action for
judicial redress. However, this is a rule of ancient
vintage and it arose during an era when private
law dominated the legal system and public law
had not yet been born.

¡ Where an applicant has a legal right or a legally

protected interest the violation of which would result
a legal injury to him, there must be corresponding
duties owned by other parties to the applicant.

¡ This rule in regard to locus standi thus postulates

the right-duty pattern which is commonly to be
found in private law litigation.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 5

 ¡ This rule was based on premise that only a person
whose own right is threatened, is entitled to seek a
remedy, this rule translate itself into the following
proposition of law:

• Only he can take recourse to the jurisdiction whose

own legal rights of person or property are directly
and substantially injured.

• When a person suffers along with other members

of the public by administrative action, he cannot
challenge the action in question, unless he can
show some special injury to himself over and
above what others have suffered.

• Where a person challenging an administrative

action is a total stranger (courts call them
meddlesome interloper), the court will not
ordinarily entertain his petition.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 6

 ¡ The Report on National Juridicare, Ministry of
The Liberalisation in Law Justice and Company Affairs, Government
Public Interest Litigation of India, 1977 (A Committee consisting of PN
Bhagwati and VR Krishna Iyer JJ):

¡ “Each one being driven to Court on his separate

cause of action is itself a public wrong…The rule of
locus standi requires to be broad based and any
organisation (or individual) must be able to start
such legal action…Community proceedings,
public interest litigation, class action and the like
before Courts, Tribunals and other authorities
must be financed and/or undertaken by legal aid
organisation and public interest lawyers.”

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 7

 • Municipal Council Ratlam v Vardhichand, AIR 1980
SC 1622

• Justice Krishna Iyer asserted that for improving the

access to justice for the people, stated with assertion
the imperative need to liberalise locus standi to go
beyond the blinkered rules of standing of British
Indian Vintage.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 8

1. Private Legal Injury to
Others
¡ Where a person who has suffered legal wrong or
legal injury or whose legal rights or interest is
violated has been unable to approach the court on
account of some disability (his socially or
economically disadvantage position) some other
person can invoke the assistance of the court for
judicial redress.

¡ S P Gupta v. Union of India, AIR 1982 SC 149

¡ It was held that in such a case unless another
person is allowed to move the court the legal wrong
or the injury caused to such person would go
unredressed.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 9

 • The Chairman, Railway Board v. Chandrima Das,
AIR 2000 SC 988

• A practicing Advocate of the Calcutta High Court filed

a petition under Article.226 of the Constitution of India
against the various railway authorities of the eastern
railway claiming compensation for the victim, Smt.
Hanufa Khatoon, a Bangladesh national- who was
raped at the Howrah Station, by the railway security
men. The High Court awarded Rs.10 lacs as
compensation.

• In the Appeal to the Supreme Court, it was asserted

by the Court that "Where public functionaries are
involved and the matter relates to the violation of
fundamental rights or the enforcement of public
duties, the remedy would be avoidable under
public law. It was more so, when it was not a mere
violation of any ordinary right, but the violation of
fundamental rights was involved- as the petitioner
was a victim of rape, which a violation of fundamental
right of every person guaranteed under Article.21 of
the Constitution."

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 10

 ¡ Where the state or a public authority may act in
2. Injury to Public Interest violation of constitutional or statutory obligations or
fail to carry out such obligation, resulting in injury to
public interest, who would have standing to complain
against such act or omission of the state or public
authority? In such cases, if no one can maintain an
action for redress, it would be disastrous for rule of
law.

¡ S P Gupta v. Union of India, AIR 1982 SC 149

¡ The Supreme Court viewed that in all such cases

where there has been the public wrong and the
public injury, any member of the public acting
bonafide and having sufficient interest can maintain
a redress of such public wrong or public injury.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 11

 • National Human Rights Commission v. State of
Arunachal Pradesh, AIR 1996 SC 1234

• Public interest petition, filed by the National Human

Rights Commission, it was urged to the Court to
enforce the rights, under Article 21 of the Constitution,
of about 65,000 Chakma/Hajong Tribals, settled
mainly in the State of Arunachal Pradesh who were
being persecuted by sections of the citizens of
Arunachal Pradesh.

• The Supreme Court held that ‘the State is bound to

protect the life and liberty of every human-being, be
he a citizen or otherwise, and it cannot permit any
body or group of persons, e.g., the AAPSU, to
threaten the Chakmas to leave the State, failing which
they would be forced to do so. No State Government
worth the name can tolerate such threats by one
group of persons to another group of persons; it is
duty bound to protect the threatened group from
such assaults and if it fails to do so, it will fail to
perform its Constitutional as well as statutory
obligations. …The State Government must act
impartially and carry out its legal obligations to
safeguard the life, health and well being of Chakmas
residing in the State without being inhibited by local
politics’.
13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 12
 ¡ Where there is public injury by the act or omission of
3. Injury to Public Interest the state or public authority which also
with Specific Injury: simultaneously causes specific injury to an individual
Qualified Standing or to a specific class or group of individuals. In such
cases a member of the public having sufficient
interest can certainly maintain an action challenging
the legality of such an action.

¡ However, if the person or specific class/group of

persons who have primarily injured do not wish to
any claim, the member of public who complains of a
secondary public injury can not maintain the action.

¡ (For more details on public interest litigation, please

refer to Videh Upadhyay, “ Public Interest
Litigation in India: Concepts, Cases and
Concerns”, LexisNexis Butterworth's: 2007)

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 13

 ¡ Bhopal Gas Leak Disaster and Class Action:

¡ A class action is a legal procedure which enables the

claims (or part of the claims) of a number of persons
against the same defendant to be determined in the
one suit.

¡ In a class action, one or more persons may sue on

his or her own behalf and on behalf of a number of
other persons who have a claim to a remedy for the
same or a similar alleged wrong to that alleged by
the representative plaintiff, and who have claims that
share questions of law or fact in common with those
of the representative plaintiff (‘common issues’).

¡ Only the representative plaintiff is a party to the

action. The class members are bound by the
outcome of the litigation on the common issues,
whether favourable or adverse to the class, although
they do not, for the most part, take any active part in
that litigation.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 14

 ¡ Charan Lal Sahu v. Union of India, (1990) 1 SCC
613

¡ The constitutional validity of the Bhopal Gas Leak

Disaster (Processing of Claims) Act, 1985 was
challenged. The Act empowered the Central
Government to take over the conduct of all litigation
on behalf of the victims of Bhopal Gas Tragedy.

¡ The validity of the Act was challenged on the ground

that the deprivation of the claimants individual rights
to legal remedy against the Union Carbide Company
was violative of Article 14 of the Constitution.

¡ The Court held that the Act is valid as the State in

capacity of parents patriae (parent of the country)
for protecting the disabled victims of Bhopal Gas
disaster is competent to represent the victims. It is
the duty of the State to protect the rights and
privileges of its citizens and where the citizens are
not in a position to assert and secure their rights the
State must come into picture and protect and fight
for the rights of the citizens.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 15

WHO CANNOT SUE?
 1. Foreign State
• A foreign state cannot sue in any Court of
India unless such State has been
recognised by the Government of India.
• Section 87A (1) (a), Civil Procedure
Code
• “Foreign State” means any State outside
India which has been recognised by the
Central Government.
13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA
• Section 87A (1) (b) Civil Procedure Code
• “Ruler”, in relation to a foreign State,
means the person who is for the time being
recognised by the Central Government to
be the head of that state.
• Section 84, Civil Procedure Code
• A foreign state may sue in any competent
court: provided that the object of the suit is
to enforce a private right vested in the ruler
or such state or in any officer of such State
in his public capacity.
17
 ¡ The private rights spoken of in this section does not
mean individual rights as opposed to those of the
Private Rights body politic but those private rights of the State
which must be enforced in a Court of Justice as
distinguished from its political or territorial
rights which must, from their very nature, be made
the subject or arrangement between on e State and
another.

¡ Mirza Ali Akbar v. United Arab Republic, AIR 1966

SC 230

¡ It was held by the Supreme Court that ‘private

rights’ means rights which may be enforced by a
foreign state against private individuals as
distinguished from rights which one State in its
political capacity may have as against another State
in it s political capacity.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 18

 2. Alien Enemy
• Alien enemy is a person of enemy
nationality or a person residing in or
carrying on business in enemy territory,
whatever his nationality. An alien enemy
cannot sue in his own right.
• Section 83, Civil Procedure Code, 1908
• Alien enemies residing in India with the
permission of the Central Government and
alien friends, may sue in any court
otherwise competent to try the suit, as if
they were citizens of India, but alien
enemies residing in India without such
permission, or residing in a foreign country,
shall not sue in any such court.
13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA
• Explanation to Section 83, Civil
Procedure Code, 1908
• Every person residing in a foreign country,
the Government of which is at war with
India and carrying on business in that
country without a license on that behalf
granted by the Central Government is
deemed to be an alien enemy residing in a
foreign country.
• Johnstone v. Pedler, (1921) 2 AC 262
• An alien enemy residing within the realm
by the express or tacit licence of the
Crown is temporarily free from his enemy
character and can invoke jurisdiction of
courts.
19
 3. Convict
• Under the Forfeiture Act, 1870, a convict
whose sentence was in force and
unexpired, and who was not “lawfully at
large under any license” could not sue for
an injury to his property, or for recovery of
a debt.
• This disability was removed by the
Criminal Justice Act 1948.
• Under English Law, a convicted person, in
spite of his imprisonment, retains all civil
rights which are not taken away expressly
or by necessary implication.
13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA
Position in India
Sunil Batra v. Delhi Administration, AIR 1978
SC 1675
“Conviction of a person does not draw any iron
curtain between him and his rights and he is
not reduced to a non-person”.
Smt. Kewal Pati v. State of UP, (1995) 3 SCC
600
A convict was attacked by another convict in
Jail and killed due to failure of Jail authorities to
protect him. In a petition under Article 32 of the
constitution by the dependents of the deceased
they were awarded Rs. 1,00,000 as
compensation against the State for violation of
the fundamental right of life protected under
Article 21.
20
 4. Insolvent Person
• Insolvent person may be defined as “one • Where a tort causes injury both to the
who is unable to satisfy creditors or person and property of the insolvent, the
discharge liabilities, either because right of action will be split and will pass, so
liabilities exceed assets or because of far as it relates to the property, to the
inability to pay debts as they mature”. Official Assignee or Receiver, and will
remain in the insolvent so far as it relates
• An insolvent person may be sued for a tort to his person.
committed by him either before or during
insolvency, and if a decree is obtained
against him, the amount awarded is a debt
provable in insolvency.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 21

 5. Husband And Wife
• England: Prior 1882
• Prior to 1882, a married woman could not
sue for any tort committed by a third
person unless her husband joined with her
as plaintiff.
• She could also not be sued for a tort
committed by her unless her husband was
made a defendant. Further, she could not
sue her husband and the husband could
not sue her for any tort committed by one
against the other.
13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA
• 1882-1961
• These anomalies have been removed by
the Married Women’s Property Act, 1882
and the Law Reform (Married Women
and Tortfeasors) Act, 1935.
• A married woman can sue for any tort
committed by a third person and can also
be sued for any tort committed by her
without joining her husband who cannot be
made liable or made party to a suit simply
because he is the husband.
22
• 1962 & Onwards
• Finally, by the Law Reform (Husband and
Wife) Act, 1962, each of the parties to a
marriage has the same right of action in
tort against the other as if they were not
married but the court has a discretion to
stay the proceedings to prevent them from
using it as a forum for trivial domestic
disputes without any chance of substantial
benefit to either of them.
13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA
• India
• Marital status of Hindus, Buddhists, Sikhs,
Jains and Muslims in India is governed by
Personal Laws/Statutory Laws, as
applicable in a given case, and not by the
common law.
• Marriage under these personal laws does
not affect the capacity of the parties for
suing or for being sued nor does it confer
any protection to any of the spouses for
any tortious act committed by one against
the other.
23
 6. Corporation
• A corporation is not a real person but only
a juristic or fictitious person and cannot,
unlike real persons, be brought into
hatred, ridicule, or contempt by any
manner of falsehood.
• Thus when a libel had been made against
a corporation, in the aggregate capacity, it
is in fact, the individuals composing it and
not the corporation in the aggregate
capacity whose reputation has been
actually injured. Therefore the law is that a
corporation cannot sue for defamation
affecting personal reputation only.
13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA
• Obviously it is individual member who can
have a cause of action and allege loss or
personal reputation.
• Mayor of Manchester v. Williams, (1891)
1 QB 94
• The plaintiff corporation suit for damages
failed in respect of a statement containing
charges of corrupt practices in the
administration of municipal affairs, for such
statement was held not to injuriously affect
the reputation of the corporation as such.
24
• However, a corporation can sue for • South Hilton Coal Co., v. North Eastern
defamation, when it affects it business and News Association, (1894) 1 QB 133
properly even though the charge may be
leveled against the individual members
composing it. • The plaintiff Company’s suit for damages
was decreed in respect of statement
• Two conditions must be fulfilled: where in it was charged with failure to
provide decent and sanitary
1. The statement must be of such nature that accommodation for it ’ s workmen and
their families because such a statement
it would be defamatory, if directed against
was calculated to injure in the way of its
the individual;
business.
2. It must be of such a nature that it tends to
cause actual damage to the corporation in
terms of its property or business.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 25

WHO CANNOT BE SUED?
 1. Foreign Sovereign
• All sovereigns are equal. It is based on the
principle of international comity which
holds that “ every sovereign should
respect other sovereign”.
• The real principle on which the exemption
of every sovereign from the jurisdiction of
every Court has been deduced is that the
exercise of such jurisdiction would be
incompatible with his real dignity i.e.
with his absolute independence of every
superior authority.
13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA
English Law
• No court can entertain an action against a
foreign sovereign for anything done or
omitted to be done, by him in his public
capacity as representative of the nation of
which he is the head.
• Unless a foreign sovereign submits to the
jurisdiction of the Court, English courts
have no jurisdiction over an independent
foreign sovereign.
27
 India
• The heads of all countries are exempt from
the jurisdiction of the Indian Courts.
• Section 86 of the Code of Civil
Procedure:
• “No ruler of a sovereign State may be
sued in any Court otherwise competent to
try the suit except with the consent of the
Central Government certified in writing by a
Secretary to that Government.”
13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA
United States of America
• United States law prohibits most civil
lawsuits by an individual against a foreign
state under the Foreign Sovereign
Immunities Act (FSIA).
• The Act includes a number of exceptions
that, when satisfied, allow for such lawsuits
to be filed in U.S. Courts. One of these
exceptions applies to the victims of state-
sponsored terrorism.
28
 2. Ambassadors/Diplomatic Agents
• The protection of unhampered and free
exercise of the diplomatic function was
recognised as one of the fundamental
purposes of the law of diplomatic immunity
in –
• the Havana Convention, 1928,
• the Draft of the Harvard Research
Committee, 1932, and
• the Vienna Convention on Diplomatic
Relations, 1961.
13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA
• The Parlement Belge (1880) 5 PD 197,
207
• “[T]he immunity of an ambassador from
the jurisdiction of the Courts of the country
to which he is accredited is based upon his
being the representative of the
independent Sovereign or State, which
sends him upon the faith of his being
admitted to be clothed with the same
independence of and superiority to all
adverse jurisdiction as the Sovereign
authority whom he represents would be” -
Brett LJ.
29
• Ambassadors cannot be sued for torts
either in the Courts of England or in the
Courts of India on principles of
international policy.
• Section 86 of the Code of Civil
Procedure applies in case of Ambassador
also.
• The remedy against an ambassador is to
move one’s own Government to induce
the Government of that country to take an
action against the ambassador and his
staff, which they may think to fit to satisfy
the Government which complains.
13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA
To give effect to the Vienna Convention of
Diplomatic Relations, 1961, India formulated
the Diplomatic Immunities Privileges Act,
1964, that deals with the diplomatic privileges
and immunities.
Diplomatic agents enjoy absolute immunity
from the criminal jurisdiction of the receiving
state, and immunity from its civil and
administrative jurisdiction.
This immunity of diplomats extends not merely
to their own persons, but to their suite and
members of their family forming part of their
household, provided that they are not
nationals of the host country.
30
 3. Minor (Infant)
• Contact Act • Indian Penal Code
• Section 82
• Sections 10 and 11 of the Indian Contract
Act, 1872 a minor is incompetent to • Section 83
contract.

• Mohori Bibee v. Dhurmodas Ghose,

(1903) 30 Cal. 539

• A minor’s agreement being void ab initio;

no action can be brought under the law of
contract against him.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 31

• The law of torts does not make any
distinction on the basis of age. Thus a child
of seven years could be sued for trespass
like a person of full age.
• However if the tort requires a special
mental element (Deceit, Malicious
Prosecution), a child cannot be held liable
for the same unless sufficient maturity for
committing that tort can be proved in this
case.
13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA
• Walmsley v. Humenick, (1954) 3 D.L.R.
232
• “the defendant, a child of five years, could
not be held liable for negligence because
he had not reached that stage of mental
development where it could be said that
the should be found legally responsible for
his negligent acts” – The Supreme Court
of British Columbia.
32
 • Sometimes, the same act on the part of a minor may
result in such wrongs – a tort and the breach of
contract. The question will arise in such a case are:

a. Can a minor be sued under the law of torts although

permitting such an action may mean indirect
enforcement of a void agreement? Or,

b. Will he be exempt from liability in tort, also because

his act is also breach of contract for which he can’t
be sued?

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 33

 • Johnson v. Pye, (1665) 1 Sid 258

• A minor obtained a loan of pounds 300 falsely

representing his age. It was held that he could not
be asked to repay the loan in action for deceit.

• Ballet v. Mingay, (1943) K.B. 281

• A minor hired a microphone and an amplifier and

improperly passed it to a friend. The infant was held
liable for detinue.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 34

Liability Of Parents For • As a general rule, a parent or a guardian cannot be
Children ’ s Torts held liable for the torts of a child. There are two
exceptions to this rule:

a. When the child is father’s servant or agent, the

father is vicariously liable. [Not as father but in the
capacity of an employer or principal]

b. When the father himself, by his own negligence,

affords his child an opportunity to commit a tort, he
is liable.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 35

 • Bebee v. Sales, (1916) 32 T.L.R. 413

• The father supplied an airgun to his son, aged 15

years. Even after some complaints of mischief
caused by the use of the gun, he allowed the gun to
remain with the boy, who, thereafter, accidentally
wounded the plaintiff. The father was held liable.

• Motor Vehicle (Amendment) Bill 2016 –

(Introduced in Lok Sabha in August 2016)

• The amendment Bill under Section 199A proposes

penalties to the guardian/ owner of the vehicle for
offences committed by Juveniles.

• The guardian or owner of the vehicle shall be guilty

with a fine of Rs. 25000/- and/or imprisonment of up
to 3 years, while the Juvenile will be tried under JJ
Act. Additionally, the registration of said motor
vehicle will be canceled. The burden of proof shall
lie on the guardian/ owner.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 36

 4. Lunatics
• ISection 84 of the Indian Penal Code,
• Insanity is a good defence in the Criminal
law when at the time of commission of the
crime, the accused by reason of
unsoundness of mind was incapable of
knowing the nature of his act or that what
he was doing was either wrong or contrary
to law .
13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA
• Lunacy, like infancy is not a good defence
in tort except in case such as Malicious
Prosecution, Deceit where intention,
knowledge, malice, or any other mental
condition is essential to create a tortuous
liability, and the lunatic may be found
incapable of having such mental condition
or intention or knowledge sufficient to
impose liability upon him.
• Ranagangulu v. Seaswan, AIR 1947 Ker.
25
• Lunacy cannot be regarded as a ground of
exemption from civil wrong as it is
ordinarily considered in law of crimes
because the object of the law of tort is
compensation and not punishment.
37
 • Prof. Winfield has quoted three reasons for fixing
Why Should A Lunatic Be the liability on the lunatics:
Liable?
a. Where one or two innocent persons must bear loss,
the loss must fall on him who did the act;

b. Public policy which requires the rule in order to

include his relative to keep the lunatic under
restraint and also in order to prevent tort-feasors
from feigning insanity;

c. The lunatic must bear the loss occasioned by his

torts, as he bears his other misfortunes.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 38

 5. Corporation
At one time it was thought that a corporation
could not be held liable for wrongs involving
malice or fraud on the ground that to support
an action for such a wrong it must be shown
that the wrong doer was actuated by a motive
in his mind and that “ corporation has no
mind”.
It is now settled that a corporation is liable
for wrongs even of malice and fraud. A
corporation may be sued for malicious
prosecution or for deceit.
13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA
• Municipal Board of Ahmedabad v.
Panubhai,(1934) 37 Bom. LR 468
• “A corporation cannot be deemed to be
actuated by that kind of malice which
essential to the maintenance of an action
for malicious prosecution, instituted by the
officer, in the scope of their duty, provided
the necessary ingredients of such a
prosecution are made out. A corporation
may, in the assertion of its rights render
itself liable for malicious prosecution.” -
Rangnekar, J .
39
Whether The Corporation
Is Liable For The Torts Of • A corporation is liable for torts committed by its
It’s Servants? agents or servants to the same extent as a principal
is liable for torts of his agent or an employer for the
torts of his servant, provided the tort is committed in
the course of doing an act which is within the scope
of the powers of the corporation.

• Tiruveriamuthu Pillai v. Municipal Council, AIR

1961 Mad. 230

• The plaintiff’s dog was killed by the employee of a

Municipal council in the course of the discharge of
their function of killing stray dogs in the municipal
town.

• In an action by the plaintiff for damages against the

Council for the loss of the dog, it was held that the
Council is liable for damages. A corporation cannot
be immune form liability in respect of torts brought
about at its instance.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 40

Can A Corporation Be
Sued For ‘ Ultra-vires ’ • A corporation will not be liable if the act of its servant
Torts? is not authorised by the article of its incorporation, in
other words, which is ultra vires of the corporation.

• Poulton v. London and S.W.E. Rly. Co., (1867) LR

2 QB 534

• A station master in the employment of the defendant

company arrested the plaintiff for refusing to pay the
freight for a horse that had been carried on the
defendant’s railway. The railways company had
authority under the Act of Parliament to arrest a
person who did not pay its fare but not to arrest a
person for non-payment for the carriage of goods.

• It was held that the railway company was not liable

as the company having no power in itself to arrest
for such non-payment it could not give the station
master any power to do the act.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 41

 6. Personas Having Parental Or Quasi
England
Parental Authority
• Traditionally it is held that parents have the • Section 1(7), Children and Young
legal right to smack their children as part of Persons Act, 1933
administering of reasonable punishment. • A parent, teacher, or other person having
lawful control or charge of a child or young
• However any force used to restrain or person is allowed to administer punishment
punish a naughty child must always be on him.
reasonable or it will amount to tort.

• One must remember that such an authority • Corporal punishments was first banned in
warrants the use of reasonable and state schools in 1987 and has been
moderate punishment only and therefore, if banned in all schools since 1998.
there is an excessive use of force, the
defendant may be liable for assault, battery
or false imprisonment, as the case may be.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 42

• R. v. Newport (Salop) Justices, (1929) 2 • A v. United Kingdom, (1998) 2 FLR 959
K.B. 416
• A 48 year old Scottish teacher who pulled
• If the school rules prohibited smoking, both down his eight year old daughters pants
in the school and in the public, the school and spanked her at a health centre was
master was justified in caning a student convicted of assault and battery. He had
whom he had found smoking cigarette in a exceeded the bounds of reasonableness.
public street.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 43

 • R (on the application of Williamson) v. Secretary
of State for Education & Employment, (2005)
UKHL 15

• The banning of corporal punishment was challenged

as being inconsistent with Christian Faith (Article 9
of the European Convention on Human Rights).

• The Court held that abolition of corporeal

punishment in schools under s 548 of the Education
Act, 1948 did not infringe parental rights of those
parents who believed that such punishment was
consistent with Christian faith (Article 9 of the
European Convention on Human Rights).

• It further held that the ban did interfere materially

with parental rights under Art 9, but that interference
was necessary in a democratic society for the
protection of the rights of the vulnerable children.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 44

 • Parents Forum and Meaningful Education v.
Union of India AIR 2001 Del 212
• Provisions of the Delhi School Education Rules 1973
providing for corporal punishment to a student was
challenged.

• The Government justified the rule as necessary for

inculcating discipline.

• ‘[I]t was cruel to subject a child to physical violence

in school in the name of discipline or education’. It
was held that inflicting physical punishment on a
child is not in consonance with his or her right of life
guaranteed by Article 21 of Indian Constitution. "Just
because child is small he or she cannot be denied of
these rights…. Even animals are protected against
cruelty. Our children are surely cannot be worse off
than animals" said the High Court.” - Justice Anil
Dev Singh and Justice Mukundakam Sharma

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 45

7. Persons Having Judicial/Executive Authority
• Judicial Officers’ Protection Act, 1850
grants protection to a judicial officer for any
act done or ordered to be done by him in
the discharge of his judicial duty. He is
protected even though he exceeds his
jurisdiction provided that at that time he
honestly believed that he had jurisdiction to
do or order the act complained of.
• The Object of the above stated protection
is to enable the judicial officers to
administer the law without any fear of
unwarranted litigation against them.
13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA
• “ Section 1: - No Judge, Magistrate,
Justice of the Peace, Collector or other
person acting judicially shall be liable to
be sued in any civil court for any act done
or ordered to be done by him in the
discharge of his judicial duty whether or
not within the limits of his jurisdiction:
• Provided that he at the time in good faith,
believed himself to have jurisdiction to do
or order the act complained of; and no
officer of any court or other person, bound
to execute the lawful warrants or orders of
acting judicially shall be liable to be sued
in any civil court, for the execution of any
warrant or order which he would be bound
to execute, if within the jurisdiction of the
person issuing the same.”
46
 1 No such protection is granted if a magistrate is
acting mala fide and outside his jurisdiction.
Limits Of Such Protection
• Sailajanand Pandey v Suresh Chandra Gupta,
AIR 1969 Pat. 194

• The magistrate acting mala fide, illegally and

outside his jurisdiction, ordered the arrest of the
plaintiff. The Patna High Court held that he was not
entitled to the protection given by the Judicial
Officer’s Protection Act, 1850 and was, therefore,
liable for the wrong of false imprisonment.

13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 47

 The protection of judicial privilege applies only to
judicial proceedings as contrasted with
administrative or ministerial proceedings and
where, a judge acts both judicially and ministerially
or administratively, the protection is not afforded to
the act done in the later capacity.

State of U.P. v. Tulsi Ram, AIR 1971 All. 162

Five persons were prosecuted for certain offences. One

of them was acquitted by the Sessions Court and
another by the High Court. The High Court upheld the
conviction of only three of the five persons and
authorised the issue of warrants against these three
convicted persons.

The judicial magistrate acting negligently signed an

order for the arrest of all the five persons. As a result of
this order, the plaintiffs, even though they had been
acquitted by the High Court, were arrested by the
police.
13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 48
 They filed a suit claiming compensation of Rs. 2,000
from the judicial officer and the State of U.P. stating that
their arrest before their relations and friends on the day
of Holi festival had caused much humiliation, disgrace,
physical discomfort and mental suffering to them.

The lower appellate court held that the judicial officer

was protected by the Judicial Officer’s Protection Act,
1850 but the State of U.P. was vicariously liable and
passed a decree of Rs. 500 against the state of U.P.

The Allahabad High Court, on an appeal made by the

State of U.P. held that the State was not liable because
the act done by its servant was in the discharge of his
duties imposed by law.

Further, it held that the judicial officer was liable for the
wrongful arrest of the plaintiff-respondents as the
judicial officer was not exercising any judicial function
but only an executive function while issuing warrants
and therefore, the protection under the Judicial
Officers’ Protection Act, 1850 could not be available in
this case.
13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA 49
 8. Trade Union
• Section 13 of the Trade Unions Act, 1926
• Every registered Trade Union shall be a
body corporate with all attributes of a legal
personality.
13/10/21 Dr C J Rawandale, Professor, Symbiosis Law School, NOIDA
• Section 18 of the Act enacts that no suit
shall lie against a registered trade union,
its members or officers in respect of any
act done in contemplation or furtherance of
a trade dispute to which a member of the
Trade Union was a party on the ground
only -
• That such act induces some other person
to break a contract of employment, or
• That it is an interference with the trade,
business or employment of some other
person or with the right of some other
person to dispute of his capital or labour as
he wills.
50
ANY QUESTIONS PLEASE?
ALL THE BEST!