Government Liability Governments Liability About Govt.: Govt. is a legal person. Govt. can sue and can be sued. According to Art. 144 of the Bangladesh Constitution- The executive authority of the republic shall extend to the acquisition, sale transfer, mortgage and disposal of property, the carrying of any trade or business and the making of any contract. According to Art. 146- The Govt. of Bangladesh may sue or be sued by the name of Bangladesh. Law of the England: In England the King was exempted from legal proceedings. It was based on two maxims- i. The king can do no wrong, ii. All the courts in the country are his courts and he cannot be sued in his own courts. So no one could sue against the King. He was above the law and only accountable to God. So he could no wrong. He could be plaintiff but never be made defendant. No writ could be issued nor could any order be enforced against him. Kings ministers or executive were also exempted from legal proceedings because they were Kings servants. In 1947, The Crown Proceedings Act passed. This Act has made King or executive liable, especially in the tort and contract matter. This Act made executive responsible. But this Act does not make king responsible personally. Personally he is exempted from legal proceedings. He is not personally responsible because he does the work according to the advice of the Ministers. Prime Minister and other ministers were also personally exempted because they do any thing under the name of the king. All the Ministers are servants of the Prime Ministers. So they are also exempted from the legal proceedings. Law of the Subcontinent: In the subcontinent the king was never beyond the law. He was responsible for his misdeeds. He was not exempted from personally appear in the court. British did not force their own doctrine here. The maxim, The King can do no wrong has never been accepted in the subcontinent. British did not continue their system in the subcontinent. The countries of subcontinent have adopted the theory of Rule of Law in their constitution. So in the subcontinent, law is the supreme not the King and king is always under the law. In subcontinent king and all citizens are equal. Art. 7 of the Bangladesh Constitutions say- the Constitution is the supreme law of the republic. So, not the King. Its Constitution. But in sub-continent, (i) President, (ii) Governor, (iii) Prime Minister and (iv) Ministers are not personally responsible or liable. They are personally exempted from legal proceedings. President of Bangladesh: Article-51 of the Constitution status the liability and immunity of the president. (1) In Civil Matters: If president done anything about personal matters not official, then he is liable for this and can be sued against him. President is bound to appear in the court. But if president anything done about official matters of in the official transaction then he is not liable for this. He is not personally responsible for this. He is exempted from personal appearance in the court. In these cases suit can be filed against the name of the Govt. of Bangladesh. Govt. of Bangladesh is responsible in these cases. (2) In Criminal Matters: During his term of office no criminal proceedings, whether it is personal matter or in his official matter, can be brought against the president. This time he is also immune from warrant or arrest or imprisonment till he is in office. But After his office means after the duration of his office, then criminal proceedings can be brought against him. Example: - Ershad for Janata Tower cheats case. Prime Minister and Minister of Bangladesh: Art-55 of the Constitution states the immune and liability of the Prime Minister. Art 55(II) says- The authority of the Prime Minister shall exercise the executive power of the republic. Art 55(IV) says- All executive actions of the Govt. shall be expressed to be taken in the name of the president. So, Prime Minister does everything on the name of the President. So prime Minister is exempted from the liability. Other Ministers are servant of the Prime Minister and doing on the advice of the Prime Minister. So, they also exempts from liability. More over, may of the mark of the ministers are done on the name of the President. Other Officials: Other officials of Bangladesh Govt. sometimes exempted from liability. Sometimes they are not immune from some extent the exempted liability, some extent they are not exempted. ## The privilege of the Prime Minster, President, Ministers, Officials are called crown privilege in England and Executive Immune in Africa. Contractual Liability of Govt.: Art 144 of the Constitution has empowered the Bangladesh Govt. to make any contract. According to Art 144- The executive authority of the Bangladesh of the Republic shall to the making of any contract. To make any Contract with or by the Govt., some requirements must be fulfilled and the provisions of the Contract Act 1872 must be fulfilled. According to Art145- If the Govt. wants to make a contract some requirements to be fulfilled. The requirements are as follows- (1) All such contract must be expressed to be made by the president. (2) All such are to be executed by such persons and in such manner as the President authorize or direct. If the requirements are fulfilled or completed neither the President nor the prescribed person personally responsible for that contract. But Govt. is responsible for this contract. If the requirements are not fulfilled or completed, then the person who signs the contract is personally responsible for that contract. Govt. will not responsible. Example: If the trade Minster sign any contract without filling the requirements, then Trade Minister personally liable for this contract. ** Art-299 of the Indian Constitution states the same requirements about the contract with or by the Govt. Art-299 lays down the following conditions and requirements which must be fulfilled in contracts made by or with the union or a state: (1) All such contracts must be expressed to be made by the President or the Governor as the case may be. (2) All such contracts are to be executed by such person and such manner as the president or the Governor may direct or authorize. Case: In Fernandej V. State of Karnataka AIR (1990) SC, Indian Supreme Court says- The requirements are mandatory. So, without these requirements Govt. is not liable. Liability of Govt. in Quasi-contract: Quasi-contract: - According to Sec.70 of the Contract Act, 1872 the following three conditions are to be satisfied to make a quasi-contract. (1) The first condition is that should lawfully do something for another person or deliver something to him. (2) The second condition is that in doing the said thing or in delivering the said thing must not intend to act gratuitously. (3) The third condition is that the other person for whom something is done or to whom something is delivered must enjoy the benefit. If these three conditions are satisfied, sec. 70 imposes upon the latter person the liability to make compensation to the former in respect of the thing so done or delivered. Case: In State of W.B V. B.K. Mandol (1962) SC At the request of a Govt. Officer, the contractor constructed a building. The officer obtained the possession and the building was used by the Govt. but no payment was made to the contractor. It was contended that as the provisions of Article-299 of the constitution had not been complied with, the contract was not enforceable. The Supreme Court held that the contract was unenforceable but the Govt. is liable to pay the contractor under sec.70 of the Indian Contract Act, 1872 on the basis of quasi-contractual liability. Liability of the Govt. in Tort matter: In Some special cases Govt. is liable for tort. To liable the Govt. on tortious matters two rules is followed. (A) Rule of the Sovereign function; (B) Rule of the Non-Sovereign function. (A) Rule of the Sovereign function: Generally it can be said, Acts, which have statutory basis, are sovereign Acts or functions. In the subcontinent Govt. is not liable for tortious matter in doing sovereign functions. List of the sovereign function:- a. State of Rajsthan V. Vidyawati AIR (1962) SC 933 b. Kasturilal V. State of U.P. AIR (1965) SC 1039 c. Ahyam V. State of Rajsthan AIR (1974) SC 890 Under the decision of these cases we can mention a list of sovereign function. But this list is not conclusive. Sovereign functions are- (a) Carrying goods during the war; (b) Making or repairing a military road; (c) Administration of justice; (d) Improper arrest, negligence or trespass by police officer; (e) Wrongs committed by the officers in the performance of duties imposed upon them by the legislature; (f) Loss of movable property from Govt. custody owing to negligence of officers; Payment of money in custody of the Govt. to a person other than the rightful owner owing to negligence of a officer in the exercise of a statutory duty, where the Govt. does not derive any benefit from such transaction. Case: Union of India V. Harbans Singh AIR (1959) Punj.39 In this case, Punjab high Court held that- A military truck supplying meals to military personnel is a sovereign function. Son Govt. will not be liable if a military truck supplying meals to military personnel strikes a citizen. (B) Rule of the Non-Sovereign function: Generally it can be said, acts which have no statutory basis, and are non-sovereign Acts or functions. In the subcontinent Govt. is liable for totious matter in doing non-sovereign function. List of the non-sovereign function:- A. State of Rajsthan V. Vidyawati AIR (1962) SC 933 B. Kasturilal V. State of U.P. AIR (1965) SC 1039 C. Ahyam V. State of Rajsthan AIR (1974) SC 890 Under the decision of these cases we can mention a list of non-sovereign function. But this list is not conclusive. Non-Sovereign functions are- (a) Injury due to negligence of the servants of the Govt. in a dockyard or Railway. (b) Trespass upon or damage done to private property in course of a dispute as to right land between Govt. and the private owner. (c) The state is liable to be saved for restitution of the profits unlawfully made. (d) Defamation contained in a resolution issued by the Govt. (e) Injury caused by a Govt. vehicle, while such vehicle was not engaged in carrying out any sovereign function. Case: (a) Satya Wati V. Union of India (1967) In this case, the Delhi High Court held that the carrying a hockey team in a military truck to the Air Force station to play a match is not a sovereign function. (b) Union of India V. Sugrabai (1969) In this case, the Bombay High Court held that the transporting of military equipment from the workshop to the artillery school is not a sovereign function. (c) State of Mysore V. Ramchndra Gunda (1972) In this case, the Mysore High Court came to conclusion that the construction of a reservoir by the state for the purpose of supplying drinking water is not a sovereign function. (d) State of U.P. V. Hindustan Lever (1972) In this case, the Allahbad High Court held that the Govt. sub-treasury’s banking functions is not a sovereign function. (e) Union of India V. Jasso (Smt.) (1962) In this case Punjab high came to the conclusion that the carrying of coal to the army head quarters is not a sovereign function. Comments on distinction between Sovereign & Non-Sovereign function: From the above discussion, the principle, which emerges, is that if the function involved is a ‘Sovereign function’, the state cannot be held liable in tort. But if it is a ‘Non-Sovereign function’, the state will be held liable. But the difficulty lies in formulating a definite test or criterion to decide to which category the act belongs. In fact, it is very difficult to draw a distinction between two. So many jurists and writers criticize the classification of Govt. function. Prof. Alice Dacob says that,“ The watertight compartmentalization of the state’s functions into sovereign and non-sovereign or governmental and non-governmental is unsound”. He also says the, “ In welfare state, the governmental functions have increased and today not all the functions performed by the Govt. are sovereign functions; e.g. Commercial activities like the running of the Railways. Different jurists divide the functions of the Govt. on statutory basis. According to them, functions, which have statutory basis, are sovereign functions but which have not statutory basis are non-sovereign functions. But this test also defective. An activity may be regarded as sovereign even though it has no statutory basis (power to enter into a treaty with a foreign country) and conversely it may regard as non-sovereign function even though it has statutory basis (Running of railway ways). Moreover, sometimes a particular Act may be held to be a sovereign function by one court but non-sovereign by another, e.g. Railway Function. Case (a)- Maharaj Bose V. G.G. in Council (1952) In this case, running of the railways was held to be a sovereign Act. by the High Court of Bombay. (b) Bata Shoe V. Union of India (1954) In this case, running of railways was held be non-sovereign Act by the High court of Calcutta. (c) Union of India V. Ladulal Jain (1965) Running of the Railways was to be held a non-sovereign function by the Supreme Court. **Law Commission of India: First Report, 1956(Liability of the State in Observation of the Law Commission- “There is no ………. , why the Govt. should not place itself in the same position as a private employer subject to the same rights and duties as are imposed by the statute. Doctrine of Estoppel and promissory Estoppel: The basic principle of estoppel is that a person, who by some statement or representation of fact causes another to act to his detriment in reliance on the truth of it, is not allowed to deny it later, even though it was wrong. Justice here prevails over truth. This principle is embodied in section 115 of Indian Act, 1872. It provides: “ When one person by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.” Example: - A, intentionally and falsely loads B to believe that certain lands belongs to A. And there by induces B to buy and pay for it. The land afterwards became the property of A, and A seeks to set aside the sale on the ground that at the time of sale he had no title. He must not be allowed to prove his want of title. In the same way, if the body makes any promise then he can be bound to follow that promise, under the rule of estoppel. If the man makes any promise to another and another does anything depend on that promise, then promisor cannot retract his promise. If you rely on any promise and do something on it, later I cannot change my promise. It is a doctrine of evolved by equity in order to prevent injustice. Promissory estoppel is also called equitable estoppel. According to Sec.115 of Evidence Act, 1872, “Private individual is also bound by rule of promissory estoppel.” Now our question is – whether the Govt. bound by rule of estoppel or promissory estoppel. England: The Rule of Estoppel against Govt. be divided into two views: a) Traditional view; b) Modern view. Traditional view: - England about 70 or 80 years ago Govt. was bound by the estoppel or promissory estoppel. According to traditional view, the doctrine of estoppel or promissory estoppel applies to private individuals only and the crown is not bound by it. Thus, in R. Amphitrite V. R. (1921) 3KB- “An undertaking was obtained by a ship-owner from the Govt., on certain conditions being fulfilled, the ship would not be detained.” Relying on this assurance the ship was sent and contrary to the promise, it was detained by the Govt. The owner sued on a petition of right for damages. The court dismissed the action and held that the undertaking was not binding on the Govt. But many jurists criticized this view. According to Prof. Good Heart – “This judgment is so wrong that it goes against British Constitution.” After these critism, the traditional view was changed. Modern view: - By this view, previous view has been changed. Now it has been accepted and the rule of estoppel applies to the crown as well. In this view, if Govt. makes any promise, then he can be bound to follow that promise. According to this view, there is no justification for not applying this against the Govt. and exempt it from liability to carry out its promises given to an individual. The crown cannot escape from its liability saying that the said doctrine does not bind it. Case: (a) Robertson V. Minister of pensious (1949) 1KB 227 In this case, one R, an army officer claimed for disablement pension on account of war injury. The war officer accepted his disability as attributable to military service. Relying on this assurance R, did not take any step. Which otherwise have taken to support his claim. The ministry thereafter refuses to grant his pension. The court held that ministry liable. In this Case Lord Denning said- “The crown can not escape by saying that estoppels do not bind the crown.” (b) Lever (Finance) Ltd. V. Westminster Corp. (1971) 1 QB 222 In this case, Lord Denning has rightly observed-“ If an officer, acting within the scope of his ostensible authority, makes a representation on which another acts, then a public authority may bound by it, just as much as a private concern would be”. Law Subcontinent: So far as Indian Law is concern, not only has the doctrine of promissory estoppel been adopted in its fullness but also it has been recognized as affording cause of action to the person to whom the promise is made. The doctrine has also been applied against the Govt. and the defense based on executive necessity has been categorically negatives. Before more than a hundred years long before the doctrine was formulated by Lord Denning. The High Court of Calcutta applied the said doctrine and recognized a cause of action founded upon it in Ganges Mfg. Co. V. Sourujmull (1880) 5 Cal. Case: - Ganges Mfg. Co. V. Sourujmill (1880) 5 Cal. In this case The Calcutta High Court held that- Govts. Are bound by the rule of estoppel. Supporting of this view: Case: - Union of India V. Anglo Afghan Agencies (1968) SC 718. In this case, supporting of this view, Justice Shah said- “ We are unable to accede to the contention that the executive necessity releases the Govt. from honouring its solemn promises relying on which citizens have acted to their detriment.” Case: - Motilal Pdampat Sugar Mills V. State of U.P. (1979) SC 621 In this case, supporting this view Justice Bhagwati held that, “It is the pride of our constitutional democracy and rule of law that- the Govt. stands on the same footing as a private individual.” Example: India Supreme Court (supporting this view Case: - Union of India V. Anglo Afghan Agencies (1968) SC 718. In this historic case, the Textile commissioner published “Export Promotion Scheme”. In this scheme the textile commissioner promised some benefit to the exporter of the textile goods. Relying on this representation, the petitioner exported goods worth rupees 5 lakhs. But the Govt. denied granting benefit. It was contended by the Govt. that scheme was merely administrative in character and did not create any enforceable right in favour of the petitioner. It was also argued that there was no formal contract as required by Art-299 of the constitution and therefore, it was not binding on the Govt. Court said-“ Yes, that was not a formal contract but a solemn promise and Govt. bound by their promise. The Supreme Court held that the Govt. was bound to carry out the obligations undertaken in the scheme.” Case: - Motilal Padampat Sugar Mills V. State of U.P. (1979) SC 621 This is a landmark decision on the subject. In this case, the Govt. of Uttar Pradesh announced that new industrial units in the state would be granted exemption from the payment of sales tax for a period of three years. Acting on the above assurance the petitioner established the factory. Later on, however approached the High Court but failed. Applying the doctrine of estoppel the Supreme Court allowed the appeal. Case: - Express newspaper Pvt. Ltd V. Union of India (1986) SC 872. A lease was granted by the central govt. to the petitioner contracted the building. The new Govt. came into power. New Govt. wanted to forfeit the lease and was going to demolish the building. Govt. said – Order of earlier Govt.’s minister was illegal, improper, or invalid. So, present Govt. was not bound by that order. But the Court held that- the earlier Govt.’s minister did within jurisdiction. So latter Govt. must be bound by the doctrine of promissory estoppel. Justice A.P. Sen observed that- “When the permission for construction was granted by the then minister concerned and the petitioner has acted upon the grant of permission and construction was made, the lessor was precluded from contending that the order of the minister was illegal, improper or invalid by the application of the doctrine of promissory estoppel. Examples of Bangladesh: - Case No.27: -Collector of Custom V. Abdul Hannan 42 DLR (AD) 167 ‘Sugar crisis’ happened in the country for solving this crisis, Govt. said, if any importer imports sugar from foreign countries in a limited time, that importer will enjoy exemption from custom tax and sale tax. Then the importer imported sugar within said time. But the Govt. refuses to give him that exemption. The Supreme Court held that- Govt. is bound by promissory estoppel and Govt. is bound to give the said exemption. Case No. 29: - Bangladesh Parjatan Corp. V. Mofizur Rahman 46 DLR (AD) 46. One employee of the Parjatan Corp. retired with Govt. permission before the due time or retirement time. Latter the Govt. (or corporation) refused to give him retirement benefit. Here Govt. said, that retirement was illegal. In this case court held that, “After giving the permission of retirement, Govt. can not say it illegal. Govt. is bound by rule of estoppel.” Case No.30: - M.A. Hai V. T.C.B. 40 DLR 206 The trading Corporation Board (T.C.B) had no rules for regulating of their employees. On behalf of T.C.B said that, they would follow the Govt.’s disciplinary rules and employees would treat as Govt.’s servants and regulated by disciplinary rules of Govt., which was for Govt. employees. But latter they (T.C.B) did not implement the law for the employees and refused to treat employees as Govt.’s employees. In this case High Court said that.“ Authority cannot move away from their promise.” Some principles regarding nature of promissory estoppel: Indian Supreme Court in famous Motilal Case, 1979, mentions some principles about promissory estoppel. These principles are based on a Latin maxim-“Solus populi Est Suprema Lex”. It means, “Public interest is the highest law or people welfare is the highest law”. These principles are about nature of promissory estoppel. Principles are as follows- (i) Rule of estoppel can be used not only as shield (defense) but also used as sword (offence). (ii) According to Article-233 of the Indian Constitution, though it is not a contract but a solemn promise and Govt. cannot retract from that promise. So, this is also applicable to Art-145 of Bangladesh Constitution. (iii) Executing necessity freedom to exercise future action cannot defeat promissory estoppel. Govt. authority cannot say- for executive necessity or freedom of exercise executive action Govt. is not bound by promissory estoppel. (iv) In promissory estoppel there is no distinction between sovereign and non-sovereign function. Govt. is equally liable for sovereign and non-sovereign function. Grounds where exemption allowed or where promissory estoppel cannot be enforced against Govt.: 1. Not against the constitution; 2. Not against parliament/ Legislature; 3. Not against the statute; 4. Not against equity; 5. Not against public interest; 6. Not against public policy 7. Not against the duties of the state; 8. Not applied contract appointment; 9. Not applied ultra vires cases; 10. Not applied ostensive authority. (1) Not against the constitution: Govt. cannot be compelled to execute its promise when that promise goes against the constitution. When any contradiction arises between promise of the Govt. and the constitution then that promise is not binding on the Govt. Case No. 31: - Sankarayana V. state of Kerala (1971) SC 1997. Govt. promised to increased retirement age of employees 57 years. But according to Art. 309 of the Indian Constitution retirement age of the employees are 55 year. In this circumstance Govt. refused to abide by its promise. Court held that-“ Govt. cannot bound by that promise, because that promise will go to against the constitution. (2) Not against Legislature: Promissory estoppel cannot stop the legislature to enact any act or rule. Promissory estoppel is not applicable against the parliament. Case No. 36: - Jit Ram V. State of Haryana AIR (1980) SC 1285. In this case justice kailasam said that,“ The plea of promissory estoppel is not available against the exercise of the legislative functions of the state.” (3) Not against the statute: Govt. is not bound by rule of promissory estoppel when that promise goes against any statute. Case No. 24: Motilal Padampat Sugar Mills V. State of U.P. (1979) In this case a view was established in this concern- “The rule of estoppel cannot bind the Govt. to do any prohibitory matter” (4) Not against equity: Govt. is not bound by the rule of promissory estoppel when that promise goes against the equity. Case No.24: Motilal Padampat Sugar Mills V. State of U.P. (1979) In this case, Justice Mathew said that, “The doctrine of promissory estoppel in an equitable doctrine. So when equity demands, it can bind the Govt.” (5) Not against public interest: When any promise of the Govt. goes against the public interest, Govt. is not bound by that promise. Solus poputi est suprema lex- means- People welfare is the highest law. Case No. 24: Motilal Padampat Sugar Mills V. State of U.P. (1979) In this case a view was established- “where public interest demands then the Govt. should be exempted against the rule of estoppel.” (6) Not against public policy: Govt. is not bound by promissory estoppel when that promosie goes against the public policy of the Govt. Case No.34: - Amtit Banaspati Co. V. State of Punjab (1992) SCC 411 Case No.35: - Asstt. Excise Commr. V. Issac Peter (1994) 4 SS 104 In these two cases the court held that, “ the Govt. is not bound by its promise when this promise affects public policy.” (7) Not against the duties of the state: Every Govt. has some duty. If any promise of the Govt. goes against Govt.’s that duty that promise is not binding on the Govt. in this case Govt. is not bound by the promissory estoppel. Case No.36: - Jit Ram V. State of Haryana AIR (1980) In this case Justice Kailasam said that, “the doctrine cannot be invoked from preventing the Govt. from discharging its function under the law.” (8) Not apply in the contract of appointment: If Govt. does anything, which goes against any contract appointment of the Govt. Govt., is never bound by that contract appointment. Govt. is free to do that thing. Case No.37: -Ramanatha Pillai V. State of Kerala AIR (1973) SC 2641. Govt. created of vigilance commissioner and appointed Sir Pillai in that by a contract for five years. But before five years Govt. abolished that post. Sir Pillai filed a suit against Govt. for such breach of promise. In this case the Supreme Court held that, “In the contract employment Govt. is not bound by the rule of promissory estoppel.” (9) Not Applied in Ultra vires cases: Govt. is not bound by that promise which is ultra vires. Govt. is not responsible for that promises which are made by without proper power by the authority. Case No.36: - Jit Ram V. State of Haryana AIR (1980) In this case Justice Kailasam said that, “When the officer of the Govt. acts outside the scope of his authority, the plea of promissory estoppel is not available.” (10) Not applied in case of ostensible authority: When a promise is made by any ostensible authority (Artificial authority) Govt. is not bound by that promise. When an authority, which has not such a power but express that, it has such a power and makes any promise, that promise is not binding on the Govt. In this aspect Prof. Roy Barger says- Govt. is not bound by a promise, which is made by an ostensible authority. Restriction over exemption from promissory estoppel or limitation of non-application of estoppel against the Govt.: 1) Court decide whether Govt. exempted; 2) Burden of proof lies on the Govt. whether public interest so requires; 3) Govt. provides evidence or facts; 4) Where promisee could restore earlier position. (1) Court decide whether Govt. exempted: When Govt. bound by the rule estoppel and when Govt. gets exemption from estoppel is fully determined by the court not by the Govt. Govt. only claims to the court and then court takes decision. Only court decides whether there is public interest or not. If there is public interest the court grants exemption to the Govt. Case: - Motilal Padampat Sugar Mills V. State of U.P. (1979) In this case, justice Mathew said that, “The court will decide that the Govt. whether exempted or not against the rule of estoppel.” (2) Burden of proof lies on the Govt. whether public interest so require: When Govt. claims exemption from promissory estoppel on the ground of public interest, in that case it is the burden of the Govt. to prove that matters relates with public interest. Case: -Motilal Padampat Sugar Mills V. State of U.P. (1979) In this case, justice Mathew said that, “When Govt. wants to get any exemption against rule of estoppel with in a specific reason, the Govt. is bound to proof this.” (3) Govt. provides facts and evidence: When Govt. claims any exemption from estoppel Govt. id bound to provide all facts, circumstances, and evidence to the court. Justice Shah said that, “Govt. should be exempted but here govt. must provide its issue with sufficient evidence.” (4) Mere change of policy is not sufficient: Govt. cannot be exempted on the ground of changing of its policy. Govt. cannot say our policy has been changed. So we are not bound by promissory estoppel. If these cases Govt. cannot change its policy without permission of the court. If court thinks that any policy should be change for public interest, then court can permit the Govt. to change its previous policy. Then Govt. is not bound by the estoppel. When sufficient ground for public interest exists only then Govt. can change its policy with permission of the court. In Motilal Case, Justice Mathew says-“ Vital matter is not policy, vital matter is public interest.” (5) Where Permission cannot restore in his earlier position: When promise cannot restore in his earlier position or ‘Status Quante’, then that promise is irrevocable. It means, and then Govt. cannot revoke that promise. Govt. is then bound by that promise. Power of non-disclosure of public document: As a general rule, the principle is that both the parties to the dispute must produce all the relevant material” evidence in their possession. If any party fails to produce such evidence, an adverse inference can be drawn under section 114 of the Evidence Act, 1872. Sec. 123 of the Evidence Act, 1872 confers a great advantage of the Govt. in as much as in spite of non-production of the relevant evidence before the court, no adverse inference can be drawn against it, if the production of the document in question would cause injury to the public interest. But the question is whether court can justify the genuineness I=of the Govt.’s demand/claim. Law of England: 1) Earlier view; 2) Later view. Earlier view: - Earlier view of English court is- Govt.’s power is absolute in disclosure of documents and court has no jurisdiction to justify Govt.’s claim. In England, the Crown has the special privilege of withholding disclosure of documents referred to as “Crown Privilege”. It can refuse to disclose a document or answer any question if in its opinion such disclosure or answer would be injurious to the public interest. This doctrine is based on well-known maxim “Solus Poputi est Suprema Lex”- Public welfare is the highest law. Case No.39: - Duncan V. Cammell Laird and Co. Ltd. (1942) 1 All ER 587 This is the leading case on the point. At the time of Second World War the submarine “Thetis” sank during her trials and 99 lives were lost. In action for negligence, the widow of one of the dead persons sought discovery of certain documents in order to establish liability against the Govt.’s contractors. The Admiralty claimed “Crown Privilege” The House of Lords observed that-“ The affidavit filed by the minister that disclosure would be against the ‘Public Interest’ and could not be called into question.” But this decision was very much criticized. Sir C.K. Allen regarded it as a ‘very formidable impediment to justice and fair play’. Prof. Goodhart regarded it as ‘opposed do the whole course of British Constitutional history.’ Later view: Later view of English Court in disclosure document, Govt. power is not absolute. According to this view, when Govt. refuse to produce any document to the court on the ground of public interest, court can justify Govt.’s claim that whether public interest relates or not with that document. Case: - Con way V. Rimmer (1968) 1 All ER 874 In this case House of Lords said-“Govt.’s power in withholding disclosure of documents is not absolute. Court can investigate whether Govt.’s claim is genuine or not. In this case House of Lords rejected Govt.’s claim of non-disclosure of documents. House of Lords said that, “this was not about disallowed the claim for privilege.” In this case House of Lords also held that, “Court itself can see without disclosing document in question ought to be produce or not, the judge must inspect the document without being shown to the parties.” In this case House of Lords gives a list, generally where non-disclosure allowed and where not. Certain types of documents are to be disclosed- a) Documents of cabinet minister; b) Documents of National defense affairs; c) Documents of Foreign affairs. On the other hand, privilege should not be allowed for- a) Routine Documents b) Trivial Documents. Law of India or Subcontinent: In subcontinent the basic principle is incorporated in sec. 123 of the Evidence Act, 1872 that reads as under: No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of state, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit. So according to Sec.-123 it is the power of the Govt. to determine whether a public document will be produce as evidence or not. Case: - State of U.P. V. Raj Narain AIR (1675) SC In this case Justice Mathew says-“When Govt. refuse to produce any public document to the Court, under sec.123 court will consider two matters- a. Whether the document is related with secret affair of state; b. Whether the disclosure of document is harmful to national interest. The words used in section 123 “as he thinks fit” confer an wide discretion on the head of the department to give or withhold such permission. But this does not mean absolute power. Because, an overriding power in express terms is conferred on the court under section 162 to decide finally on the validity of the objection. The court will disallow the objection if it comes to the conclusion that the document does not relates to the affairs of state or that the public interest does not compel its non-disclosure. Some Procedural advantage: (i) Civil proceeding; (ii) Criminal proceeding; (iii) Act of Indemnity; (iv) Limitation Act; (v) Writ proceeding. (I) Civil proceeding: In civil proceeding Govt. enjoys these advantages- (i) According to sec. 80 of C.P.C., when any person wants a suit against any Govt.’s officer, a two months notice will have to give to that officer. But a general citizen does not get this advantage. (ii) According to sec. 81 of C.P.C., A Govt. officer is exempted from arrest, attachment of property and appearing in person. (iii) According to sec. 82 of C.P.C, No decree will be executed against Govt. unless it unsatisfied for three months from the date of decree. For Judicial Officers- (iv) Under the judicial officers protection Act, 1850, when judicial officers perform their official duty and exercise their power in good faith no civil proceeding can be bought against them. Good faith is important matter here. If he does anything in bad faith or done any grave wrong, a petition can be made against him under Article-109 of Bangladesh Constitution. According to Art. 109, “The High Court Division shall have superintendence and control over all Courts subordinate to it”. But no civil case can be brought against that judge. (II) Criminal Proceeding: A. For Judicial Act: - (1) According to Sec. 77 of the Penal Code, “Nothing is an offence which is done by a judge when acting judicially in the exercise of any power which is or which in good faith he believes to be given to him by law. (2) According Sec. 78 of the Penal Code, “In execution of judicial order, if any Govt. officer does any wrong in good faith, he will not be liable for that wrong.” Good faith means two things: a) Court has jurisdiction; b) He is bound by that. So, that officer must believe these two things. Example: -Wrong done by police in execution of decree or arrest. (4) According to sec. 197 of Cr.P.C., “Prior sanction of Govt. is necessary to bring a criminal proceeding against any judge, magistrate or any Public servant.” Case No.41: -AIR 1945 Cal. 585 In this case Calcutta High Court held that-Police investigation, inquiry, report might go against the Govt. but these are not prohibited only complaint is prohibited. Case No.42: - a. Rokeya Begum V. Shaifur Rahman 2 BCR (1982) HC b. Niyaj Mohammad V. Emperor AIR (1939) Sind 148 In these two cases it was held that- this kind of is not necessary for police officer. Case: - Fakir Tariqul Islam V. State 49 DLR (1997) In this case Bangladesh H.C. say- Prior sanction is necessary for filing a criminal suit against police officer. So, we can follow one of these two decisions. B. For other officers: - (3) According to Sec.76 of the Penal Code, “Nothing is an offence which is done by a person who is, or by reason of mistake of fact and not by reason of mistake of law in good faith believes himself to be bound by law to do it. (III) Act of Indemnity: According to Article 46 of the Bangladesh Constitution – Parliament may by law make provision for indemnifying any person in the service of the Republic. So, by indemnity Act, Parliament can declare any act of the govt. legal and can indemnify officers of the Govt. from liability. These kinds of provisions also exist in Art-38 of Indian Constitution and Article 237 of Pakistan Constitution. Act of Indemnity is present in 5th Amendment of Constitution by Ziaur Rahman, 7th Amendment of Constitution by Arshad and 11th Amendment of Constitution by Justice Shahbuddin Ahmed. At present under “Parbotto Shanti Chukti”, Shanti Bahini and Armies of Bangladesh are indemnified by the parliament. So no suit can be filed against them. **Difference between Article 49- Prerogative of Mercy of the President and Article 46- Power to provide indemnity: - In Art 49 or President mercy here judicial trial is must. President cannot indemnify a person from trial. After trial he can reduce punishment given by court. But in Art 46 or Power to provide indemnity judicial trial is absent here. Parliament can indemnify an officer or a person from facing of any trial. Case No.47: - R. V. New Castle upon-Tyne Corp. (1889) Local authority was given power to approve any building plan in that area. In this case the Court held that- when the building plan is not inconsistent with the law, local authority is bound to allow that building plan. Interpretation of the word ‘May’: Sometimes ‘may’ means must. Sometimes statute say-‘May’, but in real meaning it means must. This is in those cases when power given to the executive by the word ‘May’. When Statute says- Executive may exercise this power. Here it means the executive must exercise this power in some cases, In the matter of the discretion power exercise ‘may’ means ‘must’. Case No. 20: - Baker, Ra; (1890) In this case, Lord Justice Cotton says- the word ‘May’ never means ‘must’. But when power given to the Justice, the power ‘May’ is the duty of the Judges. Here ‘may’ means ‘must’. Case No.21: - U.P. V. Jagendra Singh (1963) According to Administrative Tribunal Rules, 1947, if any public servant request Governor to transfer any ‘service matter dispute’ to the tribunal. Governor may transfer it to the tribunal. In this case, Supreme Court held that-when any public servant requests Governor to transfer any dispute to administrative tribunal, then that transfer is mandatory to the Governor. Governor is bound to transfer it to the tribunal. The Court also observed that, “When discretion power given to the high status authority by the word ‘may’. In these cases ‘may’ means ‘must’. Professor Rajshahi University Northern University Bangladesh School year 2003 • LLM • Rajshahi Rajshahi University School year 2002 • Rajshahi
Posted on: Tue, 29 Oct 2013 05:41:11 +0000
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