Report No. 89
Articles 72 To 91: Suits Relating To Tort
37.1. Article 7.-article 72 Reads As Unde.-
|"72.||For compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in the territories to which this Act extends.||
|When the act or omission takes place."|
Article 2 of the Act of 1908 was in the same language, but the period was 90 days.
Article 2 of the Act of 1877 was as unde.-
|"2.||For compensation for doing or for omitting to do, an act alleged to be in pursuance of any enactment in force for the time being in British India.||
|When the act or omission takes place."|
Article 2 of the Act of 1871 was in identical terms.
37.2. Earlier report of the Law Commission.- The Law Commission,11 in its Report on the Act of 1908, recommenced a period of 3 years for such suits. The reasons given were as unde.-
"Article 2 is for a suit for compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in India. The period of limitation is 90 days and time beings to run when the act or omission takes place. This article is intended to cover the case provided for in England, by section 8 of the Public Authorities (Protection) Act, 1893. The provisions therein are somewhat elaborate and the period of limitation is six months.
The object of the Legislature in England and in India seems to be to provide a shorter period of limitation in the case of actions against public authorities for any act done in pursuance or execution or intended execution of any Act, or of public duty, or authority, or in respect of any neglect or default or in the execution of such Act, duty or authority. It protects the public authorities by providing a shorter period of limitation. It has been held that so long as the officer concerned acts honestly and bona fide, he gets the advantage of the shorter period of limitation.
If the statute authorises the injury, no action lies. If an officer purporting to act, in pursuance of statute, does something which causes an injury or by reason of his omission to do an act an injury results, the person so injured is entitled to claim compensation for the neglect or default. If he abuses the power, the shorter period of limitation will not apply and the action will be outside the article. The law in England was altered by the Limitation Act of 1939 (section 21) which provided a period of one year instead of six months.
Time was made to run from the date of the accrual of the cause of action instead of from the act or neglect or default complained of, as under section 8 of the Public Authcrities (Protection) Act. Owing to public agitation, the English Limitation Act was amended in 1954 and the period of limitation was increased to three years for actions relating to personal injuries. By the amending Act, section 21 of the Act was repeated and a proviso to sub¬section (1) of section 2 was added, cutting down the period of six years, which applies for actions founded on torts, to three years in such cases.
The period, therefore, under the English Law for actions on tort as respects personal injury, whether caused by a private individual or by a public authority is now three years instead of six years as in the case of other actions based on tort. This article would come under the general provision for all suits on tort for which we propose to prescribe a period of three years from the date of accrual of the cause of action. There does not seem to be any justification for making a distinction between public authorities and a private citizen except in matters like notice under section 80, C.P.C.
Further, if a shorter period for suits against public authorities is prescribed, it will compel parties to rush to a suit without exhausting the possibility of getting redress by negotiations which necessarily take time. One of us, Dr. Sen Gupta, is inclined to take a different view and has added a separate note to this Report on the subject. After a full consideration of his views we think that the consideration mentioned above in favour of a uniform period for suits against public authorities and private citizens should prevail and that no change is needed in the proposals suggested above."
1. Law Commission of India, 3rd Report (Limitation Act).
37.3. Dr. Sen Gupta's dissent to the earlier Report.- The dissenting note of Dr. N. C. Sen Gupta,1 to the Report of the Law Commission on the Act of 1908, was as unde.-
Public policy requires that acts of government officials purported to have been done under the provisions of some enactments in force should be tested, if necessary, as soon as possible in order that public administration may not be affected by an erroneous course of action based on wrong application of the law for a long time; and if there has been an error, it should be rectified as soon as possible.
I am afraid that the principle that this makes a discrimination between the government and a private person does not provide a correct approach to the problem. The difference in the provisions lies not in the character of the person against whom the suit is brought, but in the nature of the claim which justifies a short period."
1. Law Commission of India, 3rd Report (Limitation Act, 1908).
37.4. Need for amendment and recommendation.- The recommendation made by the majority of the Law Commission in its Report on the Act of 1908 was to increase the period to three years, but the period has been increased (by the Act of 1963) only to one year.
37.4A. Time taken in preliminary step.- In this connection, an aspect to which attention must be drawn is the fact that where a private person wants to sue the Government or a public officer in respect of an act alleged to have been done under an enactment, considerable time of that private person is taken up in certain preliminary steps. These preliminaries include
(i) collecting the necessary information;
(ii) getting the necessary copies of documents etc. from the public office concerned;
(iii) taking legal advice; and
(iv) arranging for the payment of court fee and other expenses.
Furthermore, the scope and importance of suits governed by Article 72 is daily increasing, as almost every official action affecting the rights of a citizen now takes place under the colour of some enactment or the other. To put the matter in different words, the sphere of common law wrongs is diminishing and the sphere of wrongs taking place under the colour of statute is expanding in volume, day by day. It is, therefore, necessary that the increased importance of such acts should be realised and reflected in the law of limitation.
For this important reason, we recommend that the change mentioned above so as to increase the period of limitation to 3 years should be carried out. In reaching this conclusion, we have not overlooked the points that were raised in the dissenting note of Dr. Sen Gupta appended to the report of the Law Commission1 on the Act of 1908. However, on deep reflection, we have come to the conclusion that the increasing importance of suits falling under Article 72 and the difficulties of the litigants (in the shape of time consumed by preliminaries to such litigation) must be given great weight.
It is true that there is need to ensure that the validity of an official act is decided without unreasonable del.-which was one of the points made by Dr. Sen Gupta. However, three years would not be too long a period or an unreasonable one, having regard to the considerations that have been mentioned above.
1. Law Commission of India, 3rd Report (Limitation Act, 1908); see para. 37.3, supra.
37.5. Difficulty of litigants against Government.- We must also state that recently there has been a spate of cases alleging torture of undertrials1-2 and these were detected after a long time. Thus, the litigant against the Government suing for acts done under alleged statutory authority has to face a serious practical difficulty. In fact, the Judicial Commissioner, Nagpur,3 had as long back as in 1877, anticipated that damage caused by a public servant may not come to be noticed for quite some tim.-
"The period of limitation provided is very short. In many cases notice of one month has to be given before suits of the kind referred to in this article can be instituted, so that the party injured has only two months after the act or omission takes place, within which he must make up his mind to bring his action. Section 424 (Bill No. IV) Code of Civil Procedure proposes six months as the period of limitation for a suit "against a public officer for compensation for an act alleged to be done in his official capacity." The same period might well be allowed, for actions of the kind referred to in Article 2, especially when it is remembered that material damage would in many cases not have resulted in the short period allowed by the present law".
1. Khatri v. State of Bihar, (1981) 1 SCC 623 (627).
. Anil v. State of Bihar, (1981) 1 SCC 622.
3. Judicial Commissioner, Central Provinces, Letter No. 461, dated 12th March, 1877, National Archives File, Paper No. 7, p. 5.
37.6. Recommendation.- We are mentioning this to show that a tort committed by public servant may remain undetected for a considerable time and hence we reiterate the earlier recommendation of the Law Commission about enlargement of the period of limitation to three years.
37.7. Article 73.- This takes us to Article 73, reading as unde.-
|"73.||For compensation for false imprisonment.||
|When the imprisonment ends."|
It is identical with Article 19, of the Acts of 1908 and 1877.
In the Limitation Act of 1871, Article 21 was as unde.-
|"21.||For false imprisonment.||
|When the imprisonment ends."|
The words 'For compensation' were added in the year 1877 in the first column. This, probably, was done as a result of the suggestion received through the Commissioner, Central Provinces, on the draft article of 1877 Act:
"Better say, 'for damages or compensation', 'for false imprisonment'."1
The Law Commission2 made the following observations on the corresponding article of the Act of 1908, in its Report on that Ac.-
"Article 19 provides for suits for compensation for false imprisonment, a period of one year from the time the imprisonment ends. This is a suit based on tort. It is a continuing wrong within the meaning of section 23 of the Limitation Act and terminus ad quern is reached when the imprisonment ends."
As the article has not given rise to any serious controversy, no change is recommended.
1. Letter No. 778, dated 12th April, 1877, Judicial Commissioner, Central Provinces, National Archives File, 1877, Paper II, p. 6.
2. Law Commission of India, 3rd Report (Limitation Act, 1908), para. 110.
37.8. Article 74.- Article 74 reads as unde.-
|"74.||For compensation for a malicious prosecution.||
|When the plaintiff is acquitted or prosecution is otherwise terminated."|
It is identical with Article 23 of the Acts of 1908 and 1877. Article 23 of the Act of 1871 was as under:
|"23.||For a malicious prosecution.||
|When the plaintiff is acquitted."|
37.9. History.- When the draft Bill of 187.7 was circulated for comments, the earlier phraseology (Act of 1871) was changed by adding the words "or the prosecution is otherwise terminated".1 The following comment was received on the proposed chang.-
"When can a prosecution be said to have terminated? Has it terminated if the accused be released on the ground that a conviction was held before a Court which had no jurisdiction, or upon some other technical ground which leaves the accused still liable to be prosecuted? See Chambers v. Robinson, 2 Str 691; Wicks v. Pentham, 4 TR 247; and Tippet v. Nearn, 4 B&ALd 634. An acquittal upon a technicality is a different thing from a conviction set aside for want of jurisdiction."2
The other comment seems to be more pertinent and applauded the proposed change as follow.-
"The note in 'Thomson' as to this is quite corre.-an acquittal is not necessary for the purpose of bringing an action. The termination of the prosecution is the time from which limitation should run."3
The then Secretary, Legislative Department agreed4 with the latter view and the text of the article was ultimately passed as it was proposed.
1. Statement of Objects and Reasons, National Archives File, 1877, p. 1.
2. Letter, dated 19th April, 1877 from Charles D. Field, National Archives File, 1877, Paper No. 8, p. 8.
3. Demi Official letter from the Hon'ble Sir Richard Garth to the Hon'ble Arthur Hobhouse, dated 24th July, 1876, National Archives File, 1877, Paper 2, p. 4.
4. Note in National Archives File, 1877, Paper 1, p. 5.
The Limitation Act, 1963 89.187
37.10. Law Commission's earlier recommendation.- The Law Commission in its Report on the Act of 1908 recommended1 a uniform period of 3 years for suits founded on tort. [It had no specific comments on the corresponding article of that Act as such].
However, the recommendation to increase the period to three years was not accepted, and the period of limitation has remained the same as before (one year).
1. Law Commission of India, 3rd Report (Limitation Act, 1908), para. 116.