P L D 1964 (W (PLP)

(7) To what damages was the plaintiff entitled? (8) Relief.

3. On the evidence already recorded, since the parties led no further evidence, the learned Senior Civil Judge found all the issues in favour of the plaintiff and granted him a decree for a sum of Rs. 2,

600. The Punjab Province went up in appeal, and the Additional District Judge, accepting the appeal, set aside the decree on the ground that the maintenance of the road being one of the sovereign functions of the Government and a sovereign act, the defendant‑Government was not liable in tort for the injuries caused to the plaintiff, who had no cause of action against the Government. In coming to this conclusion on issue No. 1, the learned Additional District Judge relied on The Secretary of State for India‑an‑Council through the Collector of Malabar v. A. Cockcraft (27 1 C 723); Secretary of State v. Srigobinda Chaudhuri (A I R 1932 Cal. 834); Secretary of State v. Ramnath Bhatta (A I R 1934 Cal. 128) and Etti and another v. Secretary of State (A I R 1939 Mad. 663). The learned Additional District Judge did not, in view of his finding, consi der it necessary to give any decision on the remaining issues. Aggrieved by his decision, the plaintiff has moved this Court in second appeal.

4. Learned counsel for the plaintiff appellant argues that since the maintenance of roads was governed, at the relevant time, by the West Punjab Highways Act, 1943 (since repealed by the West Pakistan Highways Ordinance, 1959 (Ordinance XXXII of 1959), the highways were being maintained under a Municipal law, and the decision of the learned Additional District Judge on issue No. 1 is erroneous, because the doctrine of "act of State" or "sovereign act" has no‑ application He has referred us to the decision of the Supreme Court in Pakistan v. Muhammad Yaqoob Butt (P L D 1963 S C 627) in support of the contentions that the act of maintenance of roads by the Highway Authority or the Provincial Government cannot be treated as a "sovereign act" and, secondly, that the defendant‑Government is not absolved of responsibility in respect of the negligent acts of its servants.

5. The injury to the plaintiff was caused on the 19th of August 1952. As held by the learned Judges of the Supreme Court of Pakistan, in the above case, the present case falls under the Government of India Act, 1935, and is not governed by any consideration applicable, to the Crown in England. There also the position has materially changed by enactment of the Crown Proceedings Act, 1947. By section 65 of the Government of India Act, 1885, and section 32 of the Government of India Act, 1915, the remedies open to a person against the Secretary of State for India‑in‑Council were the same as would have been available against the East India Company. By section 176 of the Government of India Act, 1935, the remedies available against the Central Government (and later by an amendment the Federa tion of Pakistan) were the same as were available against the Secretary of State for India‑in‑Council. So the question in such cases is whether the East India Company could have been sued in tort, if at the time when the cause of action arose, the Government of this country vested in the East India Company. In the decided cases in India, there is difference of opinion whether the East India Company could have been sued for torts committed by its servants. This has mainly been due to the confusion that Governmental functions or statutory duties or acts were sovereign acts, and, as such, immune from attack. This expression was applied in those judgments, as in the cases relied on by the learned Additional District Judge, even in cases where the Government was purporting to act in relation to its own nationals under the Municipal law. This was not the correct view.

6. The expression "act of state" or "sovereign act" has in its interpretation given the constitutional lawyers some difficulty. According to the Text book of the Law of Tort by Winfield, Fourth Edition, page 87, it may signify (1) an act that, on its face, injuries nobody, e.g., recognition by the British Govern ment of a foreign sovereign; (2) an act done by a foreign State within its territorial jurisdiction which injures a British subject: this gives no right of action to the subject what ever may be its aspect in International law; (3) a transaction between the British Government and another State that injures a British subject: this likewise gives no right of action; (4) according to Sir Fitzjames Stephen: "an act injurious to the person or to the property of some person, who is not at the time of that act a subject of His Majesty; which act is done by any representative of His Majesty's authority, civil or military, and is either previously sanctioned or subsequently ratified by His Majesty". For such acts the representative is not liable. According to the Concise Law Dictionary by Osborn, Second Edition, page 10, "act of State" is an act injurious to the person or to the property of some person, who is not at the time of that act a subject of the Crown; which act is done by a repre sentative of the Crown, civil or military, and is either sanctioned, or subsequently ratified by the Crown. It is an act inflicting damage on a foreigner, but which cannot be made the subject of proceedings in the Courts, because it is authorised or adopted by the Crown. Salmond on Torts, Eleventh Edition, at page 62, states that the rule that the authority of the Crown is no defence to a public official in an action of tort does not apply when the plaintiff is a non‑resident alien and the injury complained of is suffered elsewhere than in British Dominions. No such alien can complain in an English Court of any such act done by the authority, precedent or subsequent, of the Crown. To British subjects the English Courts will grant redress even against the agents of the Government, wherever the wrong may have been committed.

7. Thus the expression "sovereign act" has no application to cases where a Government deals with or acts in relation to its own subjects. The learned Judges of the Supreme Court have, in the above‑cited case, held: "It may be stated, however, that there should be no dispute about the expression "sovereign act" being applicable only to acts committed in relation to other states or aliens and being inapplicable to a case where the Government is acting in relation to its own citizens. In the latter case, the Govern ment has authority to act only in accordance with the Municipal Law." Thus the act complained of, viz., the stacking of bajri in a negli gent manner for repairs to a highway, cannot be said to be a sovereign act, and protected as such. In view of the above pro nouncement of the Supreme Court, the learned Advocate‑General frankly conceded that the reasoning of the learned Additional District Judge could not be sustained.

8. The learned Advocate‑General, however, contended that as the alleged act of the servants of the defendant in deposit ing bajri on the road amounted to an offence, the defendant was not liable to the plaintiff in tort. As a general proposition, it is not sound and cannot be accepted. This general question has been examined at length by B. Z. Kaikaus, J., in Federation of Pakistan v. Ehsan Ellahi (P L D 1955 Lah. 303 at p. 335). We are in respectful agreement with the view expressed by his Lordship that a master is liable for the acts of his servant if the act is done within the scope of his employment. Akhlaque Husain, J., as he then was, stated that "when theft, whether by a servant or by a stranger, is due to the negligence of its staff concerned, the railway cannot be absolved of its responsibility". The plaintiff in the instant case seeks to establish the liability of the defendant on the basis of the negligence of the defendant's employees in stacking bajri on both sides of the road. The act complained of is one which is alleged to have been done within the scope of employment, and the defendant is liable if the act is performed negligently. 1n this connection, on behalf of the plaintiff reliance was placed on the standing instruction of the Punjab Government to B. & R. Branch of P. W. D. that bajri must be stacked nowhere except on bajri platforms which are to be built adjoining the road (page 11 of Chief Engineer's Technical Memo No. 1, 1933).

9. Since the maintenance of roads was governed, at the relevant time, by the West Punjab Highways Act, 1948, the question of the repair of the road was one of the exercise of statutory powers by the Highway Authority. The learned Advocate‑General contended that the stacking of bajri on the road amounted to an offence under section 25 of the West Punjab Highways Act, 1948, but it has already been explained above that the negligent conduct of the employees of the defendant within the scope of their employment, even if it amounts to an offence, will not save the defendant from responsi bility. We do not find it necessary to decide whether it con stituted an offence, but it does not appear that any particular provision of the Act was contravened. Section 26 of the Act provided for rules to be made, but we have not been referred to any rule governing the situation, which may even have been contravened.

10. On the question of exercise of statutory powers, we have the statement of Salmond. on Torts, Eleventh Edition, at page 50, that for the consideration of the question of the application of the rule of statutory authority, it is necessary to distin guish between absolute and conditional statutory authority. Absolute authority is authority to do the act notwithstand ing the fact that it necessarily causes a nuisance or other injurious consequence. Conditional authority is authority to do the act provides it can be done without causing a nuisance or other injurious consequence. Whether authority is absolute or conditional is a question of construction depending on all the circumstances of the case.

11. Public bodies are often given statutory authority to create obstructions on highway, and primarily it is a question of the proper construction of the relevant statute how far they are absolved from liability in respect of their acts. A common law, an obstruction to a highway is indictable, and if it causes special damage to an individual, is actionable at his suit. As a general rule, if the statute expressly authorises the doing of a specific act in a defined manner, no liability arises if the act I is done in the manner defined, even if by taking some additional precaution a greater degree of safety could be attained. If, on the other hand, the Legislature authorises the construction and maintenance of a work, which will be safe or dangerous to the public according as reasonable care is or is not taken in its construction or maintenance, as the case may be, the fact that no duty to take such care is expressly imposed by the statute cannot be relied on as showing that no such duty exists. The duty is one to take reasonable steps to prevent an obstruction, becoming a danger to the public.

12. We do not find in the West Punjab Highways Act, 1948, such absolute authority in the Highways Authority as to ac in such a manner as to cause a nuisance or other injurious con sequence with impunity. We find in section 12 of the Act, that even in case of temporary closure for repairs or any other purpose connected with the functions of the Highway Authority, as would interfere with the passage of traffic, it has been made the duty of the Highway Authority to set up certain notices as may be prescribed to announce the fact and also to provide for reasonable amount of access to open portions of the highway from the adjoining areas which had been deprived of access by such closure. Further, when section 6 conferred power on the Highway Authority to permit any person to do any of the acts specified in clauses (a) to (d) of its subsection (i), it enjoined "due regard to the safety and convenience of the traffic on the High way". . The Legislature did not create any absolute immunity in favour of the Highway Authority in repairing the highways, nor was the work of repairs to the highway being done In accordance with any manner specified in the Act. On the inter pretation of the West Punjab Highways Act, 1948, a duty was j cast on the Highway Authority to take reasonable steps in so stacking bajri on the road as to prevent the obstruction becoming a danger to the traveling public.

13. The learned Advocate‑General wanted us to go into the evidence to decide for ourselves the other issues, so that the case is decided without further delay, but the learned counsel for the appellant opposed the suggestion on the ground that one of the parties might suffer thereby in the matter of further appeal. In view of the opposition of the learned counsel for the appellant, we did not go into the evidence, and, therefore, nothing said in this judgment should be treated as an expression of opinion on the other issues, which remain to be decided.

14. For the reasons given above, we accept this appeal, and remit the case to the lower Appellate Court for a decision of the appeal in the light of the findings on the remaining issues. The appellant shall. have his. costs of this appeal: K. E. A. Appeal accepted. Case remanded.