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Report No. 177

3.11 Tortious liability of State.-

Another aspect, which needs notice in this behalf is the decision of the Supreme Court in Kasturlal v. State of U.P. (1965 SC 1039). In this case, the gold recovered from the person arrested was kept in the Malkhana of the police station but was misappropriated by the concerned police officer. The person arrested was released but the gold could not be restored to him. When the person filed a suit for recovery of the gold or its value, he was non-suited by the Supreme Court on the ground that no suit lies in respect of tortious acts of government servants which are relatable to sovereign powers of the State.

This was so held relying upon Article 300 of the Constitution which preserves the right and liability of the State to sue and be sued obtaining prior to the commencement of the Constitution. Indeed, Article 300 says that the said rule shall continue until a law is made by the Parliament or the State Legislature, as the case may be, laying down the situations in which the State shall be liable for the tortious acts of its servants and where it shall not be liable on the ground that that act was done in exercise of the sovereign powers of State. The distinction between sovereign and non-sovereign functions also needs to be clarified in view of the conflict between the judgments of the Supreme Court.

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