JUDGMENT 1. This is plaintiff's first appeal against the judgment and decree dismissing their suit for the recovery of Rs. 45,000/-. 2. Rameshwar, Dwarka Lal and Uchhavalal sons of Ramnarain Bohra have filed a suit for the recovery of Rs. 45,000/- on 13th November, 1971 alleging that the plaintiffs are the residents of village Sogariya Tehsil Ladpura District Kota, and owned the fields in village Bhadana, measuring 60 bighas and 14 biswas, of number 192, as its Khatedar. In the north of this field, there is a 'Roteda distributory Canal', maintained and controlled, by the Irrigation Department of Rajasthan Government. The plaintiff's fields are fertilised one, and they had to spend sufficient money over the manure and other fertilizers. 3. It was further averred that on 15th November 1968, or near about, when there was a crop of the rice, in the above field, over the land measuring 71/4 bigha and the crop of Dhania in the land measuring 91/4 bighas, the officials of the Irrigation Department released excess water, out of their rashness and negligence, from the canal, which flooded the plaintiff's field, and the water remained there for two months, and damaged the crops entirely, and if the crop had not been damaged the plaintiffs would have harvested 140 maunds of rice and 70 maunds of Dhania. ' The plaintiffs approaced the officials of the Irrigation Department and the Tehsil for assessing the damages. and Patwari did assess the damages but no payment of damages was made. In they year 1969 and 1970, they sowed rice and wheat crops over the land measuring 41 Bigha and 15 Biswas, but the officials of the Irrigation Department released the excess water,and so all the crop was damaged, and it resulted in loss of the produce of 800 maunds of rice and 500 maunds of wheat every year. The plaintiffs have claimed the price of produce, which they lost from the negligence of the defendant's officials, the details of which are given in para 6 of the plaint. The plaintiffs have asserted that in all a net damage of Rs. 65,315/- was sustained by them, out of which they relinquish a part of the claim, and filed a suit for Rs. 45,000/-. 4. The defendant in its written statement, admitted the plaintiffs fields, as well as canal being controlled, and maintained by the defendant. The plaintiffs have asserted that in all a net damage of Rs. 65,315/- was sustained by them, out of which they relinquish a part of the claim, and filed a suit for Rs. 45,000/-. 4. The defendant in its written statement, admitted the plaintiffs fields, as well as canal being controlled, and maintained by the defendant. However, it denied any negligence or rashness of its officials in releasing excess water or causing damages to the fields of the plaintiffs The amount of the damages and its price was also controverted. It was further contended that there is a seepage drain near the canal, which carries water over flown front the canal, and so there is no question of water spreading in the fields of the plaintiffs. The State has also denied its vicarious liability, and jurisdiction of the trial court to hear this suit. 5. On the basis of the pleadings of the parties the trial court framed as many as 9 issues. The plaintiffs examined in all 10 witnesses including the plaintiff. The defendant examined six witnesses. After recording of the evidence and hearing the arguments, the trial court was of the opinion that the plaintiffs have failed to prove their case and, as mentioned above, the suit was dismissed. 6. Shri D.K. Soral, the learned Advocate for the plaintiffs-appellants taking me through the entire evidence, contended that the trial court has committed serious error of law in disbelieving the evidence of Dwarkalal (PW 1) and Madholal (PW 8) whose testimony is supported to the effect that the excessive water of canal was flown by the Irrigation Department through canals which resulted in damage to the crop of the plaintiffs. Similarly the trial court committed an error in disbelieving and discarding the testimony of these two aforesaid witnesses by making unnecessary criticism. It has been pointed out that there is no clounm in Revenue records wherein the damages to the crops is to be mentioned. Their testimony should not have been discarded. 7. It was argued that the trial court has misread the statement of Dwarka Lal (PW 1) so far as the period of months is concerned. It was argued that the trial court seriously erred in holding that the rice crop happened to be ready in October and therefore, no loss can be caused in November. 7. It was argued that the trial court has misread the statement of Dwarka Lal (PW 1) so far as the period of months is concerned. It was argued that the trial court seriously erred in holding that the rice crop happened to be ready in October and therefore, no loss can be caused in November. It was pointed out that Madholal (PW 8) has stated that the plants of rice were lying uprooted when he inspected the field and there was water in the field. It was argued that Ucchavlal (PW 9) supported the plaintiff's case and yet the trial court disbelieved him. The fact that because the water was left in the field of the plaintiffs and it was flooded through the canals, no Dhania was sown by the plaintiffs in the year 1968, is proved by the statements of Dwarkalal (PW 1), Madholal (PW 8), Ucchavlal (PW 9), and Gulab Chand (PW 5). 8. Ramnarain (PW 3), Modulal (PW 4). Harish Chand (PW 6), Gori Shanker (PW 7). Uchhavlal (PW 9) and Bela Singh (PW 10) have also supported the plaintiff's versicn in material particulars for the claim of loss in year 1969-70. Shri Soral argued that the trial court was not justified in rejecting the plaintilr's suit on the ground that the plaintiffs should have constructed the boundary wall. 9. Shri Soral pointed out that trial court erred in accepting the vague and general statement of defendant's witness Darshan singh (D W 1) and Ramnarain (DW 2) that no excess water was released by the Irrigation Department and, if released, there was a seepage drain to carry it. Similarly Mohan Singh Patwari (DW 3) stated that he has no personal knowledge about the matter in dispute. 10. Shri Soral argued that the trial court itself observed that the defendants' witness could not say when the seepage drain was constructed, yet it believed that testimony of V. G. Dave (DW 4) Gazanand (DW 5), Dharuva Prasad (DW 6) and thus committed an error in believing their version. 11. Shri Soral has confined his claim to Rs. 15,000/- only now although the original claim was for Rs. 45,000/-. 12. In this respect, Shri Soral pointed out that in the year 1968, then was loss of 7000/- rupees ( Rs. 4000/- for rice and 3000/- of Dhania); then there was loss of rice produce amounting to Rs. 11. Shri Soral has confined his claim to Rs. 15,000/- only now although the original claim was for Rs. 45,000/-. 12. In this respect, Shri Soral pointed out that in the year 1968, then was loss of 7000/- rupees ( Rs. 4000/- for rice and 3000/- of Dhania); then there was loss of rice produce amounting to Rs. 8000/- in the year 1969 and Rs. 8000/- in the year 1970-71. It was pointed out that Gaurishankar (PW7) a retired Kanoongo has proved Ex. P.W. 6/1, and the report of Madholal Patwari which is Ex. 2 corroborates the plaintiffs. 13. Shri S. B. Mathur, the learned Addl. Govt Advocate. apecaring for the State, has contested the appeal. According to him, no damage has been caused and the plaintiff has miserably failed to prove his case. Shri Mathur submitted that it was a soveriegn act and the State is not liable for the act of the employees which were done as the State functionaries. Whereas Shri Soral has placed reliance upon the decision in (1) State of Rajasthan v. Mst. Vidhyawati, AIR 1962 SC 933 and (2) M/s Kasturilal Raliaram Jain v. State of U. P., AIR 1965 SC 1039 , it would, therefore, be necessary to decide whether the State can be made liable at all, as if according to Shri Mathur, the State enjoyed the sovereignty from any action and claim for damages then the exercise of appreciation of evidence would be an act of futility. Shri Mathur pointed out that the irrigation is done under the Rajasthan Irrigation Drainage Act, 1954. 14. Section 8 of this Act provides for matters for which the compensation can be awarded or cannot be awarded. Section 52 of this Act bars a Civil Court from passing an order as to supply of water to any crop shown growing at the time of such order; and except where otherwise provided, all claims against the State in respect of any thing done under this Act can be tried by Civil Court. 15. Obviously, for a suit based on the damage to the crop on account of over-flooding of the field by the negligence of the Irrigation Department, the State is not barred under this Act. 16. 15. Obviously, for a suit based on the damage to the crop on account of over-flooding of the field by the negligence of the Irrigation Department, the State is not barred under this Act. 16. It was then pointed out by Shri Mathur that in M/s Kasturilal v. State of U. P. (supra) their Lordships of the Apex Court held that when a sovereign act is done by the officers as if there is negligence, the sovereign cannot be made liable. 17. Para 30 of this judgment at p. 1048 reads as under:- 'Before we part with this appeal, however, we ought to add that it is time that the Legislatures in India seriously consider whether they should not pass legislative enactments to regulate and control their claim from immunity in cases like this on the same lines as has been done in England by the Crown Proceedings Act, 1947. It will be recalled that this doctrine of immunity is based on the common law principle that the king commits no wrong and that he cannot be guilty of personal negligence or misconduct, and as such cannot be responsible for the negligence or misconduct of his servants. Another aspect of this doctrine was that it was an attribute of soveriegnty that a State cannot be sued on its own courts without its consent. This legal position has been substantially altered by the Crown Proceedings Act, 1947 (10 and 11 Geo. 6 C. 44). As Halsbury points out, "claims against the Crown which might before 1st January, 1948 have been enforced, subject to the grant of the royal flat, by petition of right may be enforced as of right and without a flat by legal proceedings taken against Crown." That is the effect of S.I of the said Act. Section 2 provides for the liability of the Crown in tort in six classes of cases covered by its clauses (1) to (6). Section 2 provides for the liability of the Crown in tort in six classes of cases covered by its clauses (1) to (6). Clause (3), for instance, provides that where any functions are conferred or imposed upon an officer of the Crown as such either by any rule of the common law or by statute, and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the Crown in respect of the tort shall be such as they would have been if these functions had been conferred or imposed solely by virtue of instructions lawfully given by the Crown. Section 11 provides for saving in respect of acts done under prerogative and statutory powers. It is unnecessary to refer to the other provisions of this Act. Our only point in mentioning this Act is to indicate that the doctrine of immunity which has been borrowed in India in dealing with the question of the immunity of the State in regard to claims made against it for tortious acts committed by its servants, was really based on the common law principle which prevailed in England: and that principle has now been substantially modified by the Crown Proceedings Act. In dealing with the present appeal, we have ourselves been disturbed by the thought that a citizen whose property was seized by process of law, has to be told when he seeks a remedy in a court of law on the ground that his property has not been returned to him, that he can make no claim against the State. That, we think. is not a very satisfactory position in law. The remedy to cure this position, however, lies in the hands of the Legislature." As against this, Shri Soral pointed out that the present case is nearer to the decision in State of Rajasthan v. Mst. Vidhyawati (supra) wherein it was observed as under: "Similarly the functions of the welfare State which has been established under the Constitution are not confined only to maintaining law and order but extend to engaging in all activities including industry, public transport, state trading etc. Vidhyawati (supra) wherein it was observed as under: "Similarly the functions of the welfare State which has been established under the Constitution are not confined only to maintaining law and order but extend to engaging in all activities including industry, public transport, state trading etc. So far as the powers of the State as employers in so many public sectors are concerned it is too much to claim that the State should be immune from the consequences of the tortious acts of its employees committed in the course of their employment as such." (Para 10) Again it observed as under : "When the rule of immunity in favour of the Crown, based on Common law in United Kingdom, has disappeared from the land of its birth. there is no legal warrant for holding that it has any validity in this country, particularly after the constitution and therefore it would be only recognising the old established rule, going back to more than 100 years atleast if the vicarious liability of the State is upheld by the Court. Article 300 of the Constitution itself has saved the right of Parliament or the Legislature of a State to enact such law as it may think fit and proper in this behalf. But so long as the legislature has not expressed its intention to the contrary, it must be held that the law is what it has been ever since the days of the East India Company." In my opinion, the present case falls within the four corners of the principles laid down in State of Rajasthan v. Mst. Vidhyawati (supra) and, therefore, the State cannot claim immunity though the work of the Irrigation Project is a State work or duty but, in this age of the social welfare legislation the old common law principle cannot be applied broadly to all and sundry. 18. Vidhyawati (supra) and, therefore, the State cannot claim immunity though the work of the Irrigation Project is a State work or duty but, in this age of the social welfare legislation the old common law principle cannot be applied broadly to all and sundry. 18. The over-flood of the fields by the negligence or rashness or acts of commissions which are tortious acts of State's employees committed during their employment as such, cannot be protected under the old doctrine of 'king can do no wrong and that he cannot be guilty of his own wrongs', in the age of rule of law, moreso when in a country of sovereign socialist secular democratic republic we have declared the old doctrines to be obsolete and not in consonance with the present day trend of rule of law and equality. It is surprising that against a farmer, the Mighty State comes with the defence of the doctrine of 'act of State' or 'sovereigaty' inspite of a proclaimed preamble for doing justice, social, economic and political and equaility inspite of tall tale of Article 14 and Directive principles of the Constitution. It is most disturbing to find that instead of making settlements in such case, the State increases the litigation on the abstract doctrine of 'sovereignty' and 'act of State', which has lost much of relevancy now. 19. In State of Rajasthan v. Mst. Vidyawati , it was rightly pointed out that whereas those principles in the land of their birth, are no longer alive and have been burned, therefore, there is no justification for there application in India where under the Constitution we are committed to social welfare State. 20. Adopting the principles of State of Rajasthan v. Mst. Vidhyawati, it is, therefore, held that the State is vicariously liable for the acts of its officers and even in the field of irrigation if the officers committed some lapses which are otherwise actionable in torts, the State cannot escape the liability. 21. Now coming to the merits of the present case, it is proved by the evidence of Gaurishanker (PW 7) and Dwarkalal (PW 1) duly supported by the evidence of Madholal (PW 8) in addition to others that substantial damages were caused to the crop in the years, 1968-70, 1969-70 and 1970-71. 22. Madholal (PW8) Patwari inspected the site and reported the damages, in his report (Ex. 22. Madholal (PW8) Patwari inspected the site and reported the damages, in his report (Ex. 2) for the year 1968-69 Gaurishanker (PW 7) the retired Kanoongo prepared Ex. P.W. 6/1 in March, 1971 and, therefore, the damage caused in the year 1970-71 has been identified and mentioned. This all damages were due to overflow of the water through the canal. I am inclined to accept the statements of Gaurishanker (PW 7) and Madholal (PW8) which are corroborated by the other evidence of the plaintiffs, also. Mere denial by the defendant's officers that the water was not allowed to flow cannot be accepted in the face of the reports of Patwari and map prepared by Gaurishanker; both of whom were concerned with the revenue department of State of Rajasthan at that time. 23. In the year 1968-69 according to Dwarkalal (PW 1), there was loss of 4,000/- rupees for the crops of rice and Rs. 3,000/- for the crops of Dhania, and in the year 1969 there was loss of Rs. 8,000/- for the rice crop and in the year 1970 it was of Rs. 8000/- for rice crops. 24. Dwarkalal (PW 1) has clearly stated that in the year 1968, he has sown the crop of rice and Dhania in the field at 8-9 bighas and about 20-22 maunds from rice crop and 8-10 maunds from Dhania crop, are received by him. He further stated that at that time, the rates of rice and Dhania were 80 rupees per quintal and 175 rupees per quintal respectively. He further stated that in the year 1970 there was overflooding of water in 50 bighas of his land and he has sown rice in that year also, and if there would have been no overflooding of water, he could have sown two crops. The rates of rice in the year 1969-70 are stated to have been the same as in 1968. 25. Madholal (PW 8) has corroborated the evidence of Dwarkalal. The relevant evidence reads as under : HINDI MATTER 374496 A 26. Devilal (PW 2), and Harishchand Patwari (PW 6) have also corroborated by stating as under ;21-3-71 HINDI MATTER B 27. The evidence of Gaurishanker (PW 7) extracted above and on record would show that he inspected the site and prepared plan and according to it, there was loss in the cultivation to 41 bighas and 15 biswas. 28. Devilal (PW 2), and Harishchand Patwari (PW 6) have also corroborated by stating as under ;21-3-71 HINDI MATTER B 27. The evidence of Gaurishanker (PW 7) extracted above and on record would show that he inspected the site and prepared plan and according to it, there was loss in the cultivation to 41 bighas and 15 biswas. 28. It would thus be seen that the plaintiff has been able to prove that there was loss of Rs. 7000/- in the year 1968, Rs. 8000/- in the year 1969 -70 and Rs. 8000/- in the year 1970-71 and as the plaintiff has claimed only for Rs. 15,000/- there is no escape but to grant decree for the same. 29. Before parting with this judgment, I must mention that the State in the matters of such a small litigation by cultivators and farmers should take some humanitarian attitude and try to redress the grievance rather than entering into litigation. The large number of avoidable litigation against the low paid employees farmers, labourers or workmen, can be avoided if constructive and reasonable attitude is taken in the beginning and the disputes are settled. It is expected that the State functionaries would take proper steps for future atleast. 30. With the above observations, this appeal succeeds and the decree of Rs. 15 000/- is granted in favour of the plaintiff against the defendant with proportionate costs throughout. The plaintiff would also get interest at the rate of 6% p.a. as pendente lite and future interest from the date of the suit till the date or realisation.Appeal allowed with costs. *******