JUDGMENT A.P. Srivastava, J. - This is a defendant's appeal that arises out of a suit to recover Rs. 11,940/-. The respondent was the plaintiff. There were two defendants, the Dominion of India and Satyadeo, a Military motor-driver. 2. The suit was filed in forma pauperis with the allegation that the plaintiff was a Dotiyal Coolie working at Bhowali. On the 22nd of July 1946 at about 10-45 a.m. he was bringing empty tins from the Bhowali Sanatorium to Bhowali Bazar. A military truck belonging to the defendant No. 1 and being driven by the defendant No. 2 who was a servant of the defendant No. 1 happened to pass along the road at that time at a very fast speed. Without blowing the horn the driver negligently drove the truck in such a manner that he knocked down the plaintiff and ran over his legs. The truck was being driven on the wrong side of the road because the plaintiff was walking on the left. On account of this accident the plaintiff suffered great loss. He estimated the amount of his loss at Rs. 11,940/- and claimed the amount from both the defendants. 3. The suit was contested mainly by the defendant No. 1, the Dominion of India. Besides pleading that the amount claimed was excessive that defendant raised two more pleas. The first was that the incident had happened in July 1946 when India was at War. It was a state of emergency and on that account the defendant No. 1 could not be made liable as it was immune from all acts and omissions done at that time including the tortuous acts of its servants and agents. The second was that even apart from the question of emergency the defendant No. I could not be made liable for the tortuous acts of its servants because it was exempt from liability in respect of such acts. 4. The suit was tried by the Civil and Sessions Judge of Kumaun who held that the plaintiff had been injured on account of the gross negligence of the defendant No. 2 who was acting in the course of his employment as a servant of the defendant No. 1, that the defendant No. I was liable for the acts of the defendant No. 2 that the suit was within time and that the amount to which the plaintiff was entitled was Rs. 3,000/-. He therefore decreed the suit for Rs. 3,000/- and allowed proportionate costs. He directed that the court fee if any will also be payable by the defendants. 5. The defendant No. 2 has submitted to the decree but the defendant No. 1 has come up in appeal. While arguing the appeal the learned Counsel for the defendant No. 1 did not question the findings that the defendant No. 2 was a servant of the defendant No. I at the time of the incident, that the defendant No. 2 had acted negligently while working in the course of his employment and that the plaintiff had been injured and had suffered a loss of at least Rs. 3,000/-. The learned counsel for the appellant also did not press the plea that because of any emergency the defendant No. 1 was immune from liability. The only point which he pressed was that the truck in question which the defendant No. 2 was driving was a struck belonging to the Military Department. That Department was being maintained by the Government in its capacity as a sovereign. The act of the defendant No. 2 could therefore be considered to be an act of State and in connection with such acts the defendant No. 1 could not be held liable in municipal Courts even if the defendant No. 2 was its servant acting in course of his employment at the time of the accident in which the plaintiff was injured. 6. The question is whether the contention pressed on behalf of the appellant is correct. 7. What was the extent of the liability of the Government for the tortuous acts of its servants was considered for the first time in the case of the Peninsular and Oriental Steam Navigation Co. v. Secretary of State, 5 Bom. H.C. App. 1 In that case the plaintiffs had sued to recover damages sustained by them by reason of injuries caused to their house through the negligence of certain persons who were servants of the Secretary of State for India. The Servants had been engaged in a commercial undertaking at the time of causing the damage. The Secretary of State, however, sought exemption from liability on the ground that he had sovereign rights and that anything done in the exercise of those rights was immune from liability. The Servants had been engaged in a commercial undertaking at the time of causing the damage. The Secretary of State, however, sought exemption from liability on the ground that he had sovereign rights and that anything done in the exercise of those rights was immune from liability. Sin Barnes Peacock, C.J. who delivered the of the Court in that case, noted that the Company was not a sovereign but was a person to whom certain sovereign powers had been delegated. While exercising those sovereign powers it also traded on its own accounts and for its own benefits. It was therefore laid down that the East India Company would be liable for the acts of its servants done in course of undertakings which were of a commercial nature and which might be carried on by private individuals without having sovereign powers also. The claim for damages in that case was therefore sustained. The learned Judge, however, went on to observe: "But where an act is done, or a contract is entered into, in the exercise of powers usually called sovereign powers, by which we mean powers which cannot be lawfully exercised except by a sovereign, or private individual delegated by a sovereign to exercise them no action will lie." 8. This latter observation was obviously in the nature of an obiter but being a dictum of the Privy Council was held by the Courts here to be of a binding nature. Two different interpretations were, however, put on the expression 'act of State' used by the learned' Judge. On the one hand the view taken was that every act done by the Government or any of its departments and servants except of course acts done in connection with commercial undertakings could be considered to be acts of State because they could not be done by a private individual. All such acts were therefore exempt from liability. The other interpretation put on the term was that every act of the Government or its servants was not immune simply on the ground that it was done by the State and could not be done by a private individual. The real test for deciding whether the act complained of was an act of State or not was to find out whether it was an act for which justification could be sought under some municipal law. The real test for deciding whether the act complained of was an act of State or not was to find out whether it was an act for which justification could be sought under some municipal law. It could he an act of State only if it was an act which was outside municipal law and had been performed only in the exercise of the sovereign rights of the Government. 9. These two interpretations gave rise to two different series of decisions which it s not easy to reconcile. 10. The case of Nobin Chunder Dev v. Secy. of State, I.L.R. 1 Cal. 11 started the series in which first view was followed. Some of the other cases which belong to this series are Secretary of State v. Srigobinda Chaudhuri, AIR 1932 Calcutta 834, Uday Chand Mahtab v. Province of Bengal, 51 Cal. Weekly Notes 573 Secy. of State v. A. Cockcraft, AIR 1915 Madras 993 and Etti and another v. Secretary of States, AIR 1939 Madras 663. 11. The other series began with the case of The Secretary of State for India in Council v. Hari Bhanji and another, I.L.R. V Mad. 273 In that case some salt belonging to the plaintiff had been detained and had been released only on payment of additional duty. The plaintiff sought to recover the excess amount paid and the defence taken was that as the Collector of Excise and Customs had acted in the exercise of sovereign powers the suit could not be maintained in the ordinary civil courts. The contention was not accepted and it was held that the acts of State of which the Municipal courts of British India were debarred from taking cognizance were only acts done in the exercise of sovereign powers which did not profess to be justified by municipal law. Where the act complained of had professedly been done under the sanction of the municipal law, the fact that it was an act done by a sovereign power and not an act which could possibly be clone by a private individual did not oust the jurisdiction of the Court. Support was sought to be derived for this proposition from the case of Naboh of the Carnatic v. East India Companya, 2 Vessey Jr. Support was sought to be derived for this proposition from the case of Naboh of the Carnatic v. East India Companya, 2 Vessey Jr. 59 and certain observations of the Privy Council in what is known as the Tanjore cases Some of the other cases which have followed this line will be found reported in Goverdhan Das Kanhaya Lal v. Ranchhoddas Bhikharilal, AIR 1949 Bombay 271 Union of India v. Murlidhar Agarwalla and others, A.I.R. 1952 Assam 141 and Shri Krishna Sharma v. The State of West Bengal and others, AIR 1954 Calcutta 591 12. In Union of India v. Ram Kamal Bezbarua and others, A.I.R. 1953 Assam 116 a sort of middle course was sought to be adopted. That was a case in winch the plaintiff had claimed Rs. 80,200/- from the Government on the ground that on the 10th of March 1944 certain constructions, fists-nurseries and embankments of the plaintiffs had been wrongfully destroyed by some personnel of the Army Department acting in furtherance of the prosecution of War. After referring to the two lines of cases which had arisen on account of different interpretations that were put on the observations of Sir Barnes Peacock in the Peninsular and Oriental Steam Navigation Co. v. Secy. of State, 5 Bom. H.C. App. 1 (Supra) case the learned Judges came to the conclusion that the expression "act of State" could include only two kinds of acts. The first were those tailing within the foreign sphere e.g. against foreigners or foreign states. Such acts were completely immune from scrutiny by municipal courts. The other kind of acts which fell under the expression were acts in the exercise of the sovereign powers of State in times of war, insurrection, rebellion or other emergency of a like character. In respect of this latter kind, however, it was observed that. "The State should satisfy the court as to the necessity and the reasonableness of the action before it could command recognition of its claim to immunity." 13. Acts falling outside the two categories already mentioned but which were acts of officers or servants of the Government for which the Government was to be held liable were then described to be of three kinds. Acts falling outside the two categories already mentioned but which were acts of officers or servants of the Government for which the Government was to be held liable were then described to be of three kinds. (1) Acts professedly done under the sanction of the municipal law and in the exercise of powers conferred by that law and similarly acts for which there is an enforceable statutory obligation. (2) Acts of detention by the Government or its officials of lands, goods or chattels belonging to the subject including acts of trespass, and (3) Act expressly authorised by the Government or where the Government has profited by their performance. 14. It is obvious that this enumeration of the acts for which the State could be sued was not intended to be exhaustive. If it was liable for trespass to property there could be no logical reason for not making it liable for causing injury to ones person. It was apparently not necessary for the learned Judges to give a complete list of cases in which the State could not claim immunity. The case before them was one of trespass to property and fell within the second class mentioned by them. The Government was therefore held liable and the suit was decreed in respect of the amount of loss that was established. 15. Since the above cases were decided the controversy relating to the expression "acts of State" has to a certain extent been set at rest by certain observations of the Supreme Court. It also appears that the Supreme Court has in a way approved of the line of decisions which started with the case of The Secretary of State for India in Council v. Hari Bhanji and another, I.L.R. V. Mad. 273 16. Thus in the case of Province of Bombay v. Khushaldas S. Advani and others, A.I.R. 1950 S.C. 222 one of the questions which was considered by Mahajan and Mukherjea, JJ. was in what circumstances the Government could be sued. Mukherjea, J. posed the question whether an action of the kind that was in dispute in that case could have been brought against the East India Company prior to 1858. was in what circumstances the Government could be sued. Mukherjea, J. posed the question whether an action of the kind that was in dispute in that case could have been brought against the East India Company prior to 1858. Answering the question in the affirmative he pointed out that: "But the liability of the East India Company to be sued was not restricted altogether to claims arising out of undertakings which might be carried on by private person: but other claims if not arising out of acts of State could be entertained by civil courts, if the acts were done tinder sanction of Municipal law and in exercise of powers conferred by such law. The law on this point was discussed very ably by the Madras High Court in Secretary of State v. Hari Bhanji, I.L.R. V. Mad.273 17. After referring to the cases which had been relied upon by the Madras High Court in the case of The Secretary of State for India in Council v. Hari Bhanji and another (Supra) the learned judge quoted with approval the observation of LordAtkin in Eshugboyi Eleko v. Officer Administering the Government of Nigeria, 1931 A.G. 662 at p. 671 that : "This phrase (act of state) is capable of being misunderstood. As applied to an act of the sovereign power directed against another sovereign power or the subjects of another sovereign power not owning temporary allegiance in pursuance of sovereign rights of waging war or maintaining peace on the high seas or abroad, it may give six to no legal remedy. But as applied to acts of the executive directed to subjects within the territorial jurisdiction it has no special meaning and give no immunity from the jurisdiction of the court to enquire into the legality of the Act." 18. The Learned Judge went on to say.- "Much importance cannot in my opinion be attached to the observation of Sir B. Peacock in Peninsular and Oriental Steam Navigation Co. v. Secretary of State, 5 Bom. H.C. App. 1 In that case the only point for consideration was whether in the case of a tort committed in the conduct of a business the secretary of State for India could be sued. The question was answered in the affirmative. v. Secretary of State, 5 Bom. H.C. App. 1 In that case the only point for consideration was whether in the case of a tort committed in the conduct of a business the secretary of State for India could be sued. The question was answered in the affirmative. Whether he could be sued in cases not connected with the conduct of a business or commercial undertaking was not really a question for the court to decide. In the case before us the act of requisition which purports to have been done under the sanction of municipal law and in exercise of powers conferred by such law cannot be an act of state. An action on the ground of the powers being illegally exercised could certainly have been brought against the secretary of State, if the Constitution Act of 1935 had not been passed." 19. The expression "act of state" was again considered by their Lordships of the supreme court in Virendra Singh and others v. State of Uttar Pradesh, A.I.R. 1954 S.C. 447 In that case certain Muafi granted by the erstwhile rulers of Charkhari and Sarila had been revoked by the Indian Dominion as an act of State. But the validity of the confiscation was questioned. Bose, J. who delivered the judgment of the court remarked at page 452 of the report that there could be no confiscation of property as an act of State in, a Judicial Commissioner's Province of Delhi. The same learned Judge observed at page 454. "It is impossible for a sovereign to exercise an act of State against it own subjects. However disputable the proposition may be that an act of State can be exercised against a citizen who was once an alien the right being only in obeyance till exercised there has never been any doubt that it can never be exercised against one who has always been a citizen from the beginning in territory which has from its inception belonged to the state seeking to exercise the right." He quoted with approval the observations of Lord Atkinson on the same point in Johnstone v. Pedlar, 1921-2 A.C. 262. 20. 20. From these observations of their Lordships of the Supreme Court it must now be held to be settled law that every thing done by the Government or by its departments or servants cannot be defended on the ground that it is an act of State or a Sovereign act. In fact against a subject no act of State can be exercised by the Government at all. An act of State can be exercised only against an alien. If therefore any act is committed by the Government or its departments or servants which injures the subject the Government must justify it under some municipal law and the municipal courts can consider whether the justification really exists or not. If it does not the act is not immune from liability and it is not open to the Government to take shelter behind the plea that it was an act of State. 21. It is noticeable that the defendant in the present case did not plead at any stage that there was any municipal law under which the act or negligence of the defendant No. 2 in causing injuries to the plaintiff could be held to be justified; nor was the learned counsel for the appellant able to bring to my notice any such law even when he argued the appeal. It is obviously impossible to accept his contention that because the Government is entitled in its sovereign rights to maintain an Army it is open to any personnel of the Army to kill or injure any person in the country. In fact, at the time when the plaintiff was injured the personnel of the Army was being maintained under the provisions of the Government of India Act, 1935. The expenses of the Army were met out of the budget of the country and for the purposes of discipline every one in the Armed Forces was subject to the provisions of the Indian Army Act. I am therefore unable to accede to the contention that the negligence of the defendant No. 2 in course of his employment was an act of State and that on that ground the appellant could escape liability. 22. The only point pressed in the appeal thus appears to be without force. The appeal is consequently dismissed with costs.