By Siddharth Dey

The power to take personal property from an individual is rooted in the idea of eminent domain. Eminent domain is the state’s power to take private property for public use.

This is because the state has the responsibility to ensure the welfare of the people at large, enshrined in the Latin maxim, salus populi suprema lex, meaning that the “welfare of the people is the paramount law”.

In India, the Land Acquisition Act of 2013 gives the power to the state or union government to acquire a piece of land from an individual.

Of course, that comes with a fair compensation given to the individual in return for the land. That is because Article 300A of the Constitution gives us the “Right to Property”, which is however, subject to other laws*. In this case, the LAA is the ‘other law’.

The above paragraph has perhaps given you an indication on what ‘Statutory Authority’ means.

It is the authority that is derived from a statute, or law, or a piece of legislation (all are one and the same, and serve as synonyms for each other in this context).

This authority ranges from the authority given to the state authorities at different levels for collecting taxes, to the authority given to the public works department to pave way for artificial canals, or clearing up houses for the laying of an elevated railway system.

The defence of statutory authority in tort extends not only to the act authorized by the statute, but to all inevitable consequences of that act.

Ergo, that, by deduction, does not include torts arising out of negligence, since they are, by their very definition, avoidable through exercise of reasonable care. Additionally, this defence can also be claimed by private individuals.

Now, why does this defence of Statutory Authority exist at all?

That is because a lesser personal right can be ignored in favour of a larger public good. Also, as we’ve seen, the statutory authority defence extends not only to the acts authorized by the Act, but also to all inevitable consequences of that Act. This includes harm which is incidental to exercise of such authority.

For instance, no citizen can claim damages for the loss in value of their property because of emissions, noises, vibrations and disturbances caused by running train through their locality. Aside from that, if the damage could have been prevented by reasonable exercise of powers concerned, an action of nuisance (a tort, which we will discuss later) can be maintained.

Two variations of this defence are:

1. Absolute defence – there is no liability, whatsoever, on the authority-holder, except for cases involving negligent acts. The Railways have the authority to set up railway tracks, which may involve clearing of pathways in use by private individuals, or lying close to inhabited places where the constant noise of passing trains can be a disturbance. Also, they have the power to use level-crossings to stop the traffic passing over a railway track, to allow a train to pass. All these are examples where a form of harm is caused, but they are not negligent acts. So, the defence will stand.
2. Conditional defence – the authority given rests on the condition that no harm should be caused in exercise of that authority. A centre to treat dengue cannot be set up close to a residential area, especially when vector mosquitoes continuously spread the infection from the diseased present in the centre to the healthy people of the locality.

In a particular case, the railway workers company negligently trimmed the grass and hedges near the railway track, and no proper care was exercised in doing this job. Later on, sparks set by the passing train from the train set the grass and bushes on fire. Due to the presence of strong winds, the fire was carried to the plaintiff’s house. The house was a few metres away from the railway track. In this case it was not unforeseeable that in the event of a fire brought on by the sparks, the house could be affected. So, the railway company was held liable for the damage.

*The right to property was originally a Fundamental Right under Article 31 of the Constitution of India, but was moved to Article 300A by the 44^th Constitutional Amendment of 1978.

QUESTIONS:

Principle: An act, done in the pursuance of the powers provided by statute, which would otherwise be a tort, will not be actionable in the court of law. It is necessary that the act authorised be done carefully, and thus, am action does lie if the act is done negligently.

Sparks from an engine of Indian Railways, which was authorised to operate trains across India, set fire on Santonio Balencia’s warehouse on the adjoining land. Santonio had stored high-quality timber, which he had imported from the Amazonian forests of Ecuador at great expense, in that warehouse. Santonio, thus, suffers huge losses, and sues the Indian Railways. Decide.

a) IR’s actions do not show negligence. Hence, IR can’t be made liable.
b) IR was doing the work as authorised under the statue. Hence, there is no liability.
c) Both (a) and (b)
d) IR is liable for causing damage to Santonio’s property, which caused huge losses.

(c – straightforward application of the principle.)

Dawood Maayus’ property value has depreciated due to the constant noise, vibration and smoke caused by the running trains on a railway constructed by his house, under statutory powers. Will Dawood have a successful claim?

a) The Railways is liable for this act.
b) Dawood Maayus has no remedy because this is an act of statutory authority.
c) The railways are not liable for this act since there is no negligence evidenced in the facts.
d) None of the above.

(b – straightforward application of the principle.)

The employee of a railway company negligently left trimmings of grass and hedges near a railway line. The sparks caused a fire. That fire spread to the plaintiff, Vikramjit Ray’s, cottage nearby and the cottage was burnt.

a) The servants are liable for being negligent
b) No liability because it was an act under the statute.
c) The railway authorities are liable for this act.
d) No liability because the plaintiff should have built his cottage somewhere else.

(c – straightforward application of the principle.)

A diamond merchant, Aravind Sewriwal, was travelling from Uttar Pradesh to Punjab, carrying some of the diamond jewellery with himself. On his way, he was arrested by the police, who suspected him to be a smuggler. He was detained and his goods were confiscated. Upon investigation, it was found that he was actually a diamond merchant and those were his own diamonds, that he was carrying for trade. Upon release, it was found that some of the jewellery was missing, and one of the constables had actually pocketed it and fled. Aravind Sewriwal sued the police authorities for the recovery of the missing jewellery.

a) AS can successfully claim his lost diamonds.
b) AS cannot claim the diamonds because it was lost in the exercise of the statutory powers.
c) AS can claim successfully since his property was lost due to the negligence of the police authorities.
d) AS cannot claim successfully since his property was lost due to the negligence of the police authorities, but not during the exercise of statutory powers.

(d – for the reasons explained therein. The diamonds were stolen by the police constable, yes, but that did not occur during the exercise of the statutory powers of arrest, seizure and detention. So, the state/police force is not liable for the acts of the constable.)

Karsh Kale, a music artist, bought a house in the countryside. In a matter of few years, due to continuous population expansion, the surrounding area became populated, and a railway station which came up right next to his house. People would often pass through his large property, which would serve as a shortcut to the railway station. Additionally, they would litter his house, and many squatters had settled right outside his boundary walls, some even venturing inside his house. Will the Railways have the defence of statutory authority?

a) Yes, R will have the defence of statutory authority since the railway station was necessary to handle the passenger load on the rest of the stations.
b) No, since the Railways could have made the railways station at some distance from his place, which was already present before construction began.
c) Yes, since the acts of the general public are an inevitable consequence. The trespass is foreseeable, but cannot be stemmed.
d) None of the above.

(c – straightforward application of the principle. It is akin to the noise from the passing trains – foreseeable, but cannot be stemmed. The station must have been positioned so after serious deliberations, and incidentally, Karsh’s house happened to be right next to it.)

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