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Dealing with the general principle which determines the vicarious liability of the State in such cases, the Supreme Court referred to the aforesaid decision in (1868) 5 Bom HCR App A p. l and went on to say:

"Thus, it is clear that this case recognises a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants, and acts committed by public servants which are not referable to the delegation of any sovereign powers. If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is: was the tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on, the delegation of the sovereign powers of the State to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. The act of the public servant committed by him during the course his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose. This distinction which is clear and precise in law, is sometimes not Borne in mind in discussing questions of the State's liability ansing from tortious acts committed by public servants".

9. Although the principle which determines the extent of the vicarious liability of the State for the torts committed by its servants is thus well settled, it is by no means easy to apply the principle to particular cases. Sovereign powers are vested in the State in order that it may discharge its sovereign functions. The ultimate sovereign function of the State which is relevant to the ease before us is that of defence of the country. For the discharge of that function one of the sovereign powers vested in the State is to maintain an army. Training of army personnel can be regarded as a part of the exercise of that sovereign power. The State would clearly not be liable for a tort committed by an army officer in the exercise of that sovereign power. The learned Government Pleader, however, wanted us to go much further than this. He argued that all acts which are necessary for the discharge of a sovereign function of the State and which are carried out by the concerned department of the State must be deemed to have been done in the exercise of the sovereign power delegated by the State. Thus, according to the learned Government Pleader the training of army personnel requires the maintenance of machines used in the training, that the rnaintenance of the machines requires that they should be kept in proper repair, that the work of repairing the machine requires its transport from the workshop to the military school, and that the transport of the machine is, therefore, a duty performed in the exercise of a sovereign power of the State. The learned Government Pleader argued that defendant No. l in the present case while transporting the Records Sound Ranging machine and other equipment from the workshop to the School of Artillery, was thus exercising a sovereign power delegated to him and the Union of India was, therefore, not liable for the tort committed in the course of that duty.

10. We are unable to agree that the immunity of the State for the torts committed by its servants can be extended in the manner suggested by the learned Government Pleader. In our view, there is a fallacy in the assumption that every act which is necessary for the discharge of a sovereign function and which is undertaken by the State involves an exercise of sovereign power. Many of these acts do not require to be carried out by the State through its servants. For instance, the army unit stationed at Deolali requires a regular supply of food. Foodgrains purchased for the army unit may be transported to the military camp in trucks belonging to a private agency. They may also be transported in military trucks driven by employees of the defence department. The fact that the army unit is maintained in the exercise of the State's sovereign power and the further fact that supply of food is essential for the maintenance of the army unit do not justify the conclusion that, if the food is transported to the army camp in military trucks instead of private trucks, the drivers of the military trucks exercise a sovereign power delegated to them by the State. To take another instance, the maintenance of military barracks is necessary for the maintenance of the army unit and the military barracks have to be kept in proper repair. If, instead of entrusting the work of repairing the barracks by private contractors, the State sets up a departmental unit for the purpose, the work done by the State employees in repairing the barracks cannot be said to have been done in the exercise of delegated sovereign power, even if the work of repairing the barracks is essential for the maintenance of the army unit. It appears to us that in deciding whether a particular act was done by a Government servant in discharge of a sovereign power delegated to him, the proper test is whether it was necessary for the State for the proper discharge of its sovereign function to have the act done through its own employee rather than through a private agency. In the case before us the transport of the Records Sound Ranging machine and other equipment from the workshop to the School of Artillery was necessary for the proper training of army personnel, but it was not necessary to transport the said equipment through a military truck driven by an employee of the defence department. The equipment could have been carried through a private carrier without any material detriment for the discharge by the State of its sovereign functioning of maintaining the army and training army personnel. It is easy to appreciate that in certain circumstances the transport of machines through military trucks can be regarded as an act done in the exercise of the State's sovereign power. The machines may have to be carried for the immediate use of an army engaged in active military duty. In such a case the transport of the machines through military trucks may be regarded as an exercise of the State's sovereign power. In the case before us the transport of the machine could have been arranged through a private carrier without any material detriment to the running of the School of Artillery. It must follow that defendant No. l was not exercising any delegated sovereign power of the State when he transported the equipment in a military truck and caused the fatal accident by his negligence.

14. The learned Government Pleader cited several precedents to show that the expression "sovereign power" has a wide connotation. In Secretary of State for India v. A. Cockcraft, ILR 39 Mad 351= (AIR 1915 Mad 993) the plaintiff had sued the Secretary of State for India in Council for damages in respect of injuries sustained by him in a carriage accident which was alleged to have been due to the negligent stacking of gravel on a military road maintained by the Public Works Department. It was held that the provision and maintenance of roads especially a military Road is one of the functions of Government carried on in the exercise of its sovereign powers and is not an undertaking which might have been carried on by private persons and that the Secretary of State for India in Council was, therefore, not liable for the damages claimed by the plaintiff. In Secretary of State v. Shreegobindra Chaudhuri the Calcutta High Court dealt with a suit against the Secretary of State for India for loss caused to the plaintiff's property by the alleged mismanagement of managers appointed by the Court of Wards. The Court held that the plaintiff had no cause of action against the Secretary of State for India. The Court observed that the jurisdiction exercised by the Court of Wards under the Court of Wards Act, 1879, was essentially an exercise of a sovereign power. In State of Andhra Pradesh v. Pinisetti Ankanna, State of Andhra Pradesh was sued for damages alleged to have been caused by some illegal and malicious acts of certain officers engaged in the collection of land revenue. The Court held that the collection of land revenue is a sovereign function of the State and the State was therefore, not liable for the alleged tortious acts.