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The Lasalgaon Merchants Co-operative Bank Ltd. Vs. Prabhudas Hathibhai and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberA.F.A.D. No. 986 of 1959
Reported inAIR1966Bom134; (1965)67BOMLR823; ILR1966Bom526
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 43, 46 and 46(2); Bombay Land Revenue Code - Sections 150 and 154; Constitution of India - Articles 31(1) and 264
AppellantThe Lasalgaon Merchants Co-operative Bank Ltd.
RespondentPrabhudas Hathibhai and ors.
Appellant AdvocateV.M. Limaya and ;V.J. Jhaveri, Advs.
Respondent AdvocateK.J. Abhyankar, Asst. Pleader
bombay land revenue code (bom. v of 1879), sections 150, 154, 12 - indian income-tax act (xi of 1922). section 46(2)--civil procedure code (act v of 1908), order xxi, rules 43, 46--constitution of india, articles 31(1), 265--income-tax officer issuing certificate under section 46(2) of income-tax act and revenue officers attaching goods of assessee pledged to and in possession of assessee's creditor--goods ` during subsistence of attachment--suit against government by creditor to recover amount of debt secured by pledge whether maintainable.;the defendants, who were constituents of the plaintiff-bank, took advances under an agreement from the plaintiff on the security of certain agricultural produce. a part of the produce was kept in the defendants' godown and the key of the same was.....1. the suit giving rise to this appeal was filed by the plaintiff against ten defendants for recovery of a sum of the rs. 3, 455-1-0 in the following circumstances. the plaintiff is the lasalgaon merchants co-operative bank ltd., lasalgaon defendants nos 1 and 2 were the constituents of the bank should make advances to defendants nos 1 and 2 on the security of agricultural produce such as grounds dnuts, jaggery. tobacco etc. this agreements took place on 20th november 1952. the plaintiff was to make advances to defendants nos 1 and 2 up to sixty at rs. 5,000 certain advances were made the basis on this agreement. on 16th november 1953 the agreement was renewed and was to remain in force till 30th september 1954. in about december 1953 defendants no.1, which is the firm of which defendants.....

1. The suit giving rise to this appeal was filed by the plaintiff against ten defendants for recovery of a sum of the Rs. 3, 455-1-0 in the following circumstances. The plaintiff is the Lasalgaon Merchants Co-operative Bank Ltd., Lasalgaon Defendants Nos 1 and 2 were the constituents of the Bank should make advances to defendants Nos 1 and 2 on the security of agricultural produce such as grounds dnuts, jaggery. Tobacco etc. This agreements took place on 20th November 1952. The plaintiff was to make advances to defendants Nos 1 and 2 up to sixty at Rs. 5,000 certain advances were made the basis on this agreement. On 16th November 1953 the agreement was renewed and was to remain in force till 30th September 1954. In about December 1953 defendants No.1, which is the firm of which defendants No.2 is partner fir owner of the dues Defendants Nos 1 and 2 had kept certain packages tobacco in their own go down and handed over the key of he same to the plaintiff, thus giving the property in possession of the plaintiff. On 23rd August 1954 the Defendants Nos 1 and 2 were indebted to the plaintiff to the tune of Rs. 3,181. On 16th December 1952 the Income -tax Officer, Nasik issued a certificate (Exhibit 68) un der S. 46 (2 of the Income - tax Act, 1922 and forwarded the same to the collector. Nasik He warded wrote a letter on 11th December 1953 (Exhibit 69) to the collector calling upon the latter to the recovering by attachment of and sale of the stock of tobacco or by the attachment and sale of the open plot belonging to the defendant Nos 1and 2. As already stated, on 23rd august 1954 the liability of defendants Nos 1 and 2 toward the plaintiff would have worked out to sum of Rs. 3, 181 with have worked out to sum of the fu ture interest. At the time ninety - seven packages of tobacco were in plaintiff custody. On 24th December 1953 the collector, Nasik, forwarded the letter the Mamlatdar, niphad, for taking necessary action. On 23rd August 1954 the Circle Officer went of the godown of the plaintiff made valuation of the packages of the tobacco kept therein under a panchanama and sought to attach the same. The plaintiff gave a writing (Exhibit 52) protesting against the proposed attachment. The circle Officers of without giving heed to the protest proceeded to attach the goods. He kept the good in the over same godown ,locked it and hand over the key to the police patil of the village. The same day the made a repair (Exhibit 75) of whether the had done, to the Mamlatdar. In this report, the Circle Officer stated.

'In accordance with the orders given by the your (Mamlatdar) personally, the tobacco had been attached and kept in the same godown handing over possession to the police patil.'

It may be mentioned at this state that the letter written by the Mamlatdar to he Circle Officer has not been placed on the record on behalf of the dependents. The circle Officer in his reports of this dues. He forwarded the protest of the were letters of the plaintiff on 24th August 1954 that the goods were attached in pursuance's of the orders of the superior officers. It appease that on 29 th or 30th September 1954 there was heavy rains and the roof of the godown where the goods were stocked leaked heavily and as a result of the leakage the tobacco was damaged. On 1st October 1954 the collector sent a telegram to the Mamlatdar staying that the good be returned to the plaintiff. Unfortunately, the telegram to has not placed on the record of the case, nor has any evidences has led on behalf of the defendants to shows as to why the collector thought of retaining the goods the plaintiff on this particular day. It appears to have been assumed in the courts below that this action was taken by the collectors because the letters realized there the attachment was not regulate. In the absence of evidence on the point, it is difficult to say whether this action was taken the collector on account of reallocation of irregularity, impropriety or illegality of the attachment or because of the fact that the good have been heavily damaged on account of rains and the collectors felt in imprudent to continue to keep the good under his custody thereafter. On 3rd October 1954 the Circle officer submitted a report to the Mamlatdar stating that the good have been heavily damaged on accounts of have fact the he door of the godown was not open. He also stated the defendants Nos.1 and 2 though informed three or four times were avoiding to except delivery of the goods. The Mamlatdar informed the collector about what had a happened. On 8th October 1954 the Mamlatdar directed plaintiff replied that it was not going it goods has been damages. In this letter is was pointed that the authorities had committed an illegality in actuating the goods. It also stated that it was unable to take delivery of the goods which were wrongfully attached and damaged while in custody. It further stated that is would hold the government responsible for the dues for which the attached good wears pledged by defendants Nos 1 and 2. On 15th April l955 the Mamlatdar sold the good by public auction for a sum of the Rs. 857. It to the mentioned at this stage that according to the allegations in the plaint the Mamlatdar, Niphad, had informed the plaintiff on 12th January 1955 stating that the government debt had priority debts. That letter, however, is not on the record the debt of the plaintiff and all the other private debts. That latter however, is not record of the case. On 30th June 1955 of notice was given to the government under S. 80, civil Procedure code and in the court of the time a suit was filed against the pledges (Defendants Nos 1 and 2) the state of Bombay [defendants No. 3] The collectors Nasik [Defendants No.4] Mr. R. Yardi collectors of Nasik [defendants No. 5] the mamlatdar of Niphad [defendants No. 6] Gajanan Dattratrayam Thite, Mamlatdar of Niphad [defendant 7] the circle officers Lasalgaon defendants No. 8] Ramachandra Nath Patil, Circle Officer of Lasalgaon [defendants No. 9]. It would thus be seen that the Collector, the Mamlatdar and the Circle officer were sued not only of in their official capacity but also in their individual capacity.

(2) I will now give a short resume of the case made out by the plaintiff in the plaint. After pointing out that the plaintiff was a secured creditors to the extend of RS. 3, 181 and further interest, the plain tiff stated in the plaint the defendants No. 9, the circle officer came to the plaintiff and informed that he had orders from the superior to attach the goods. The plaintiff protested saying that it was a secured creditors and that the good were pledged with it. Notwithstanding this protest, defendant No. 9, proceeded to attach the goods and took away he key of the said godown with him. It is in that way that the plaintiff lost the custody of he pledged goods. The plaintiff then referred to the letter of the Circle officer dated 2nd October 1954 asking it to take delivery of the goods and stated and that the chaired man of the Bank of had done to seethe goods and found that the goods were greatly damaged. A panchanama was made regarding the condition the goods. As the governments was to prepared to except the responsibilities the plaintiff to except the refused to the take delivery of the goods. The plaint then refers to the letter debated 14th October 1954 in which is was stated that the attachment of the goods was illegal and the state govern ment would be side held responsible for the loss causes thereto. The plaintiff pointed out the Govern ment has no priority over the Bank in respect of the income tax dues since the Bank was secured creditor. The plaintiff therefore averred that attachment of the goods was illegal, that on account of these illegal actions of government of Bombay through its officers, the plaintiff was deprived of its custody of the said good and has suffered a loss to the extent t the whole amount of the debt secured by the pledge. The plaintiff therefore, sued for Rs. 3,181 as due at the foot to accounts on 23rd August 1954 at the with interest at seven per cent. At paragraph [x] the plaintiff repeated that the attachment illegal, unwarranted and unjustified. It also averred that defendants Nos 4 to 9 were liable averred that officers and individuals, if the government should shirk its responsibility and liability on the grounds of that the acts of the officers were wrongful and tortinons. It then stated instances of the defendants No. 10 was liable, because it was the instances of the Union of India that the state of Bombay through the collectors that the state Nasik and has taken the action complained of.

(3) Defendants Nos. 3 to 10 who are the contesting defendant put in their written statement (Exhibit 23) and raised the following contentions.

(1) The suit was bad for multifarious. The claim against defendants Nos 1 and 2 is on basis of the original causes of action where as the claim against the government of is based on the wrongful character of attachment of the goods.

(2) The suit against defendants Nos 4, 6 and 8 is not maintainable, sine they acted in their official capacity and they could be only sued in their official designations.

(3)The state of the Bombay is not responsible for the alleged illegal attachment of the consequent sale nor has the state of Bombay ratified the act the of the officers attaching of the tobacco.

(4) Defendants Nos 5, 7 and 9 are public officers and they have undertaken the recovery proceedings I the discharge of their duties as Revenue Officers under the Provisions of the Bombay Land Re venue Code. They have acted bona filed as Revenue officers in pursuance's of the provisions of the In come -tax act and Bombay Land Revenue of code and the suit it, therefore barred under S .6 of the Bombay bay Revenue Jurisdiction Act as against defendants Nos 5, 7 and 9.

(5) The tobacco was not removed from the place where is deposited by the plaintiff. The plaintiff was required by the Mamlatdar to take delivery of the tobacco which it refused. The plaintiff was at fault in not taking over the stock of the Tabasco. The plaintiff is not entitled to claim any compensation.

(6) The defendants denied the averments that the goods were damaged during the custody of the Go government officers as they remained uncared for. All possible care and precaution was taken by the officers while the tobacco was in their custody. On 29th September 1954 there were unexpected rains and the war shoe leaked. This (was?) an unforeseen incident. It appears that defendants Nos 1 and 2 remained ex parte. The trial court held that the attachment of the good was illegal and wrongful. It also held that t he good be come badly damaged, because of the negligence of the government and its offices. At the same time, the court held that there was no causal connection between the attachment of the goods and the actual damaged caused thereto. Consequently its come tot he conclusion of that none of the defendants Nos 3 to 10 was liable for the plaintiff claim except for a sum of Rs. 857 i.e. the sale proceeds. Consequently, it passed a decree against defendants No.3 for a sum of Rs. 857. It also passed a decree for sum of the Rs. 3,455-1-0- with further interest on Rs. 3,181 at six per cent. Per annum against defendant Nos 1 and 2. Again that judgment the plaintiff went in appeal to District court. The district court agreeing with the fin ding of the trial court, held that the attachment was illegal and wrongful. The District court also held that the plaintiff would be entitled to claim damages notwithstanding that the negligence was not proved by it. On the question of negligence the District Court held that the loss occurred not on account of negligence but on account not unavoidable circumstances viz., unforeseen and excessive rains. The district court also held that the plaintiff should have been entitled to claim damages in ordinary Coors. The state is not liable for the tortuous acts of its servants, since the state had not ratified that act of its servants in attaching the goods. According to the District court, the circle officer [defendants no. 9] alone would become liable for wrongful attached but for the protection given to him under s. 6 of the Bombay Revenue Jurisdiction Act. Consequently, the district court dismissed the appeal and confirmed the decree passed by the trial court. It is against that judgment that the plaintiff has come up in second appeal.

(4) Mr. Abhyankar, Assistant government pleaders, for the state contended that the courts below were for the wrong in holding that attachment of the goods was illegal. It is not disputed that the goods were pledged with the plaintiff and were lying in its possession of at time of the so - called attachment. The determination of the question regarding the legality or otherwise of the attachment of mainly depends upon the provisions of S. 46 (2) of the Income - tax Act of the 1922 and the provisions Ss. 150 and 154 of the Bombay Land Revenue Code. Section 46(2) of the Income -tax act of the 1922 runs thus.

'The Income - tax officer may forward to the collectors a certificate under his signature specifying the amount of arrears due from an assess, and the collectors on receipt of such certificate, shall proceed to recover from such were an arrears of land revenue.'

There is no provision of in the Income -tax Act of the 1922 under which the government could clime priority over the secured debts. Section 222 of the income tax act of 1961 corresponds to S. 46 of the 1961 instated of referring to income - tax arrears as being recoverable as arrears of land revenue, lays down the procedure to the be followed for making recovery the dues. We are not concerned with the change effected in he legal position prevailing under S. 46(2) of the Act 1961, Sundaram in his book 'The law of Income - tax in India' at page 1058 says:

'While Crown debts cannot have priority over secured debts, profits received by a Receiver in simple of mortgage suit have no priority over Crown debts, for such rents no and The position flaw there fore is well stetted and it is to the effect that the government cannot claim any priority in respect of the in come - tax dues vis - a - is the secured debt. Mr. Abhyankar referred to the provisions of Ss. 150 and 154 and of Bombay Land Revenue Code and argued that the these two sections make no distinction of between the goods being in possession of the debtor or being in the possession of the third party. Section 150(c) of the Land Revenue Code provides:

'An arrears of the revenue may be recovered by the following process -

(c) by distant and sale of the defaulter's moveable property under S. 154'. Section 154 of the said code provides: 'The collectors may also cause the defaulters moveable property to the distained and sold:.

The distraint of moveable property prepuces that the debtor is in actual possession of the same. It is clear that a secured creditor in his custody full debt are paid. H has also the debts are not paid. The claim of the debtors after in that case would restrict itself to the balance after satisfaction of the dues to the secured creditor. Under the code of the Civil procedure, the different procedures have been laid do wn in respect of attachment of the goods according to the circumstances viz., whether they are in the possession session of the judgment debts or he third person. Rule 43 of Order 21, Civil procedure code provides that where the good are in possession of the judgment debts, they are abler to be attached by actual seizure. Rule 46 of the same are provides that in the case of the movable property which is not in possession of the judgment -debtor., attachment can be levied by issuing prohibitive order calling up the person a not to give the property to the judgment debtor it is thus clear that the circle office had no rights to effect attachment of the goods by the actual seizure. Mr. Abhyankar contended that the mere fat that the Circle officers has followed the procedure of attaching the goods by acute seizure instated of issuing a prohibitive order would not make the attachment illegal. At best, the attached would be irregular. I am unable to except this line of resigning. The distinction between rules 43 and 46 of order 21, civil procedure code if prime importance's. When the goods are in the possession of a pledge, the seizure of the goods amounts of the wrongful deprivation of the goods which the pledge is entitled to retain in dispossession. In this con nection, reference may be made to the article 31(1) of the constitution of India which runs thus:

' No person shall be deprived of his property save by the authority of law'

it is not clear whether the circle officer was directed by the Mamlatdar to proceed to effect attachment by the Mamlatdar to proceed to effect attachment of the goods after he was informed by the Circle officer that the good s with were pledged and the possession was with the pledge. The document, which would have thrown light upon this question, have been withheld light from the court. The circle officers through out asserted that the was acting under the orders of his superiors. In the intimations which he face to the plaintiff., he specifically stated that he was acting under the orders so f his supports in effecting the attach ment. In the same way, in his report submitted by him on the date of the attachment, i.e., 23rd August 1954, the circle officers stated that it was in the pursuance of the personal directions given by he Mam Mamlatdar that the good were attached and kept I the godown, the key to the which was delivered to the police patil. Neither the circle officers not the mamlatdary, has stepped into the witness = box. It is not therefore possible to the hold that the circle officers acted his this one when he proceeded to effect the attachment. Apart form the question of whether the circle officers was acting under the orders of his superiors it is clear that in proceedings to seize, the goods with the view to attach the same, the circle officers acted without any authority of the law. It can at least be said that he acted in excess, of the authority given to him by law, indeed it was conceded I the court below on behalf of the Government, that the attachment of the goods from the possession of the plaintiff is merely irregular and not illegal.

(5) Another point which strikes me is that, it was assumed in the District court that the action for damages was in the nature of the au action in tort on account of loss caused by the negligence of the officers of government in whose custody the goods were kept. I have set out the averments in the pleadings in some detail, and there is nothing to indicates that the plaintiff was basing its action either upon the negligence was basing its action either upon negligence of government. The gravemen of the charge is that the attachment and seizure of goods from its possession is illegal. Mr. Abhyankar relied upon the words used in the paragraph (vii) of the plaint and argued that the basis of the paint claim if that he good were taken proper car while is the custody of the government and that they were damages on account of negligence of the government officers. As I have pointed out above, the plaintiff has claimed the amount due to him under the contract t with defendants Nos 1 and 2. It has not asked for damages for wrongful detention of the goods and for their covers. It contention of is that since is goods, which were pledged with in, were taken away by the government the government is livable for the debt due to it from defendants Nos 1 and 2 and to the extern of the valve of the property taken away from his possession. The plaintiff seems to suggest that it would have been entitled to brief the goods to sale and the recover the amount and sine the goods were taken it remedy, those who are responsible for this deprivation of will have to the pay the amount of due to the it under the original cause of the action. It is stated in paragraph (x) of the plaint viz., 'Defendants Nos 4 of 9 are liable to the plaintiff claim as officers and individuals it government shirks its responsibility and liability onto ground of that the act of the officers were wrongful and tortuous. Defendants No. 10 is liable to the plaintiff claim because it is at their instances or for the recover of their dues that the state Bombay through the collector of Nasik has taken the actions complained of.' It is necessary to note that the plaintiff does not acre as a fact to thereto that the plaintiff does not officer was wrongful or tortuous. What it is say is in causes the government theirs to shirk its responsibility on the ground that the act of the officers were wrongful., then the Union government would be responsible since it was for the recovery of their dues that the action of complained offers taken.

(6) In that view of the case the question as to whether the officers were negligent in dealing wit the goods while they were in their possession does not acquire much significance. The plaintiff causes of the action is not supplied by the damages causes to the goods to on account of the decay, which took of the place after the heavy rain. The plaintiff causes of the action of the is based upon the illegal seizure of the goods is from its possession. Even so, in my view the learned District Judge erred in the holding that the damages was inevitable and therefore the officers, in the whose custody the goods were lying, would not be considered and negligent. The trial court after due consideration of the evidence recorded a finding that the officers were guilty of the misses and negligence. The learned District judge has reversed the finding onto basis of the certain surmises. First of all, he says that it could not be said that there were no rain before 23rd August 1954, that is to day before the attachment to the goods. He then point but the rainy season had commenced in June 1954 and borrow his own words 'and it does not appear that the roof had leaked at any time before 23rd August 1954'. Pausing here the is no evidence whatsoever, to show that the roof had no leaked before 23rd August 1954. The learned District judge then proceed to say.

'The plaintiff Bank itself considered that the goods were quite safe in those very godowns where they had kept by it. Under the circumstances I think y that no leakage must have taken place when the was raining the ordinary way otherwise, the plaintiff bank itself would have taken the steps of removing the it must have rained between the second weeks of June and 23rd August 1954. For all these reasons, I think the leakage occurred because of the excessive rains and the man of the plaintiff the bank himself in the writing passed by him on 3rd October 1954 to the Circle Officer. He has himself stated therein that the damages has occurred because of the excessive rain which fell on the 29 th and the 30th of September ............. It is true that the Chairman has also stated in his writing that the failure to air he goods by opening the godowns and the congested air in the godown. However it cannot be said that the damages having leaked in the godown would have been less if the godown had been aired as seems to the necessary in the case to Tabasco. I am not impressed by the resigning to learned judge the court below in this behalf and I have come to the conclusion of that the damages that come to vet caused to the gods was the result to the excessive the rain which the fell onto 29th and 30th September 1954 and that the damages is not due to the any negligence of the part of the person of custody of these goods. Negligence cannot be presumed and the same must be satisfactorily proved..................'

With respect, I must point out that the reasoning is vitiated by a number of assumptions of and guess made by the learned district judge. Assuming for a moment that the heavy loss was largely due to heavy it rain it does not mean that there was no negligence on the part of the there was no negligence onto part of the officers is dealing with the goods of tobacco. The heavy rains do not amount to an act of God. It was the duty of the government officers to take such are as every prudent manager takes office own goods. The government stood in the position of bailees and it s for them to prove that they had taken as much care as was possible for them and the damages was due to reasons beyond their control. In my opinion, the findings reached by learned district judge cannot be sustained. But as stated of the above, it has no bearing on the question as the claim made by the plaintiff inasmuch of as the plaintiff claim of is based on the act the defendants in wrongfully seizing the goods.

(7) The learned District Judge refused to award the Claim of the plaintiff in spite of his finding that the good were wrongfully attached mainly on the grounds that three was no evidence that the act of defendants No. 9 was ratified by the government. The learned District Judge proceeds to say that the Union government could not be responsible for wrongfully seizure of the goods because all that the income -tax officer did was to send a certificate under S. 46 (2) of the Income -tax act. In addition to the certificate, the Income -tax officer wrote a letter to the collector in which he stated that the firm had the stock of tobacco in the ware = house and a plot. He then proceeded to say that the plat was mortgaged to Lasalgaon Merchant's Co - operative Bank and the suggested that if the plot is likely to fetch more value its clear should preferable to be sold in auction. It seems clear that the Income - tax officer was under the wrong impression that the plot was mortgaged to the co = operative Bank. Probably, he was misled by the circumstances, that the goods were still lying in the godown belonging to defendants Nos 1 and 2 by stating that the goods were lying in the godown of defendants Nos 1 and 2 and omitting to mention that these gods were pledged in way, the income tax officers has put the in collectors, and his sub - ordinance off their guard.

(8) That did not of course, exonerate the collector and the Mamlatdar from finding out as to whether the goods were in the possession of defendants Nos 1 and 2 and the whether they were liable to be attached and seized. The learned District judge has observed that the collectors has given no instructions of to the mamlatdar for attaching any specific goods, nor is there evidence to show that the Mamlatdar authorized the Circle officer to the attach the goods although they were in possession of the plaintiff, who was the secured, creditor. So far as the authorization by the collector and the Mamlatdar in concerned ,threes no evidence led on the behalf is defendants and so far as he authorization by the Mamlatdar to the circle Officer is concerned I have already pointed out the circle officer has claimed that the proceeded to the attach the goods and seize them in accordance with the specific instructions given to him byte Mamlatdar. In my view, in the question of special authorization not of subsequent ratification of would not possible arise in the circumstances of this case. The Bombay Land Revenue Code provides hat the collector can delegate his duties to him by the collectors under the general or special order of the state Government. It was conceded in the court below that powers were delegated to the Mamlatdar and the Circle Officer. In fact Mr. Abhyankar also relied upon the circumstances that the powers, which the circle officers has exercised were delegated powers. Once it is exercised, were delegated the Circle officer has exercised, conceded that the circle officer was exercising the delegated powers of the collector, then it is clear that no powers circle officers was exercising the delegated powers of the collector, then it is clear that no special authorization of the ratification of by the government cannot be rise for consideration in view of the fact that the circle officers was exercising the powers delegated to him under the provisions of the law. In this connect, I may refer to the provision of S. 150 and 154 of the code again. Under S. 150 (c) of the code an arrears of land revenue may be recovered by district and sale of the defaulter's moveable property under S. 154. Section 154 empowers the collectors to distrain the moveable the collectors to and have it sold. I have already referred to the provisions of S. 46 (2) of the Income - tax act of 1922 which provided that the arrears of income - tax can be provided that it they were the arrears of land revenue. That mean that the circle officer was exercising the delegated powers when he proceeded to the attach the goods. In seizing the goods he acted in the excess in of the powers the therefore the seizure of the goods illegal. But all the same, it is clear that the duty he was performing was enjoined, on him by the case neither, within the question of express authorization for the commission of the act nor that of subsequent rectification of the act nor that of possible arise I note case like this. In this connection I may refer to a decision of the Allahabad High court in prem Lal v. U.P. Govt. : AIR1962All233 . The fact of that case were was follows.

The plaintiff, Prem Lal Singhnai, was the owner of a motor truck and Chevrolet motor car. On 12th January, 1948 the District Magistrate of Gorakhpur, purporting to act under the powers delegated to him by the state of Go government under S. 9 of the U.P. Requisition of Motor Vehicle Act of 1947, passed an order requesting both these vehicles. The order required both the plaintiff singhania to place him at the disposal of the superintendent of police within 24 hours of the service of this order.

The plaintiff contended that the order was illegal and unjustified as the essential conditions of the exercise and of the requisitioning power did not exist and the it was passed with the object of causing wrongful loss of the plaintiff. The plaintiff alleged that the Chevrolet car was kept uncovered and the inter open during the period or requisition with the result the period of the damages and some part of become rusty. He had to spend Rs 760 on getting the car re - painted and repaired. Both the vehicles were related on 18th December 1948., having remained in the custody of the government for over three months. The plaintiff served a notice under S. 80 Civil procedure Code, claiming, damages and compensation of but it had no effect. He thereupon the filed two separate suits in respect of the truck filed and the car. He claimed compensation for the motor car at the rate of Rs. 10 and for the truck at the rate Rs. 40 per day. He also claimed Rs. 760 as compensation for damages done to the car. The claim in respect of the truck totaled Rs. 3,300 and of the car Rs. 1, 410.

The state contended that it was not liable for the damages claimed firstly, because the act was done in the exercise of the sovereign powers of the state and secondly, the action taken by the District Magistrate was not the action of the Government.

The learned judge referred to the distinction between the acts of the servant or agent which he person under his matters direction and guidance's and his benefits and acts in the guide and for this benefit upon him by law when the master has no control over him law when nor any rights to give instruction. It was pointed out that the to give instruction the master would ordinarily be liable, but in t he second he is not. In rejecting the arguments for the state, the learned judge observed. [P. 236]-

'The District Magistrate was not performing any duty imposed or exercising any power conferred by the law but exercising a powers expressly delegated to him by the government under S. 9 of the U.P. Requisition of Motor Vehicles [Emergency powers] act, 1947.'

After citing the said section he learned judge proceeded to the observe on these page:

'Thus the powers to requisition motor vehicles I conferred under the act to on the state government but it is permitted to delegate is powers to any officers or authority subordinate to it. Neither the statute nor any rule and thereunder confers any powers on the District magistrate who can excise them only if the authorized by the state Government. His power is not to be exercised independent of the government but 'under such condition if any as may be specified' in the authorization. He is, therefore all the time under the control of the government whose power to impose condition for its exercise whose power to impose conditions of its exercise is absolute. The district Magistrate is not persona designate under the act orally rule for the government can authorize and other officers or authority subordinate to its to exercise the powers of the requisitioning vehicles to the its behalf. Whoever requisitioning vehicles on its motor vehicles acts for the behalf of the government which can control his functions. It however, government does not choose of the impose any conditions and give unlimited powers any condition of it cannot escapes liability for any tortuous acts committed by him.'

Referring again to S .150 of the learned Revenue code, it would be noticed that under the officer who is entrusted with the duty of the making recovering and the distant and sale of the defaulter moveable property under S. 154 is one of the many such courses open to him to adopt. In these circumstances when the officers chooses, one of the cores viz., to distrain the goods one he take such a decision for and on behalf's of the Government. The powers of decision making has been entrusted to him. It is equally clear that the circle officer acted for the benefits of the Government., for it he held recovered the dues, the dues would have gone to the confers and government. In my view, authorization of the of subsequent ratification of cannot possibly arise in the circumstances of this case.

(9) Mr. Abhyankar relied upon the decision of the Madras High Court in Ross v. Secy of State I.L.R [1914] Mad 55: AIR 1915 Mad 434 The facts of that case were as follows:

The plaintiff who represented the Assam Labour supply Association of Ganjam and other districts, filed a suit against the secretary of state of India in council for damages in respect of two orders of the District Magistrate of Ganjam Suspending and dismissing one T.S., the local agent of the Association of Ganjam and closing his depot of the recruiting under the Assam labour and Emigration Act. The plaintiff complained that he was prevented by these order s from earning from the members of the association his commission of the seven rupees for each labourer sent to assam, and for an alleged liable and on the plaintiff in an orders passed by the Governor - in - council on appeals by the plaintiff in w which other against the aforesaid orders which it was stated that the plaintiff own conduct was not altogether above suspicion.

It was held that the District Magistrate had powers to dismiss the local agent but he did not have the power of suspending or of closing his depot of the recruiting under the Act independently of the Notification. It was further held:

'it was not sufficient to render the company liable that an act of this nature had been done by the servant in the course of the employment of but without previous order to the subsequent ratification. Ratification must have been by the company [East India co] and must now be by the Secretary of State.'

It was also held that 'the defendants was not liable to for the act of he District Magistrate on the further ground that it was done by him in the exercise of statutory authority'. It is significant to note the learned judge of the Madras High court name to the conclusion that the order passed by the District Magistrate was not act done in the exercise of the sovereign powers. The learned judge, therefore held that, if he is so then the state could not be held if that was then responsible unless it was established that the orders had been ratified [see that observation at p. 66] Another decision or which reliance was placed by Mr. Abhyankar, was in Gurucharan kaur v. Province of Madras . The facts of the cast were as follows:

The plaintiff filed a suit for damages for the false im imprisonments of against the government of Madras and four of its police officers. The incident complaint of happened on 13th January 1937 at kodaikanal falls within Madura District. Defendants No.2 was the sub - inspector belonging to the Madras Railway police services and defendants Nos 4 and 5 were police constables of the same ex Maharaja of Nabha by an order of the government to stay at Kodaikanal and has been to so staying since 1928. He was kept in under close surveillance. Plaintiffs Nos 1 and 2 were staying with the ex - Maharaj at Kodaikanal an wanted to go to Madras early in 1937. Necessary arrangements were made by the her secretary for reserving accommodation for them in 'Trivandrum Express' on 13th January 1937. That afternoon, the station - house officer in at kodaikanal, acting under the erroneous impression, that the ex.-maharaj was arranging to proceed to Madras sent a telegram to defendant No.2 in the following term:

Ex - Nabha Raja departing to Madras Spencer Hotel with family in car M.D. 2037'. Defendant No.2 decided to take steps to prevent the ex -Maharaja boarding the train at the Kodaikanal Road railway station. Defendants No.2 gave to call on the telephone to the railway police staff and the Madras station platform and as defendant No.3 answered, defendants No.2 attempted to instruct him to proceed by the train to Kodaikanal Road and he there prevent the ex - Maharaja boarding the train. Defendants No.3 under stood that instructions vaguely and indistinctly as the platform was noisy and indistinctly was the platform and he had to catch the train in hurry as it was about to the leave. During the journey between madura and Kodaikanal of Nabha. Connecting this with the indistinct impressions that he had received from the tele phone message of the received the from the telephone message and mind that he instructions given to him by de fendants No.2 must have relate to Maharani.

When the train arrived at Kodaikanal Road, defendants No.3 informed P.W. 6 who, was waiting on the platform that he had instructions to prevent the Maharani boarding the train. At that time she was sitting in her car within the railway compound expecting to be called to the train by the secretary some discussion took place between defendants No.3 an p.w. 6 and place between the train had to be delayed for the pur poses. The train had in the mean time of let the station and defendant No3 telegrams to defendants No.2 seeking further instructions.

It is no these fact that the plaintiff filed suit against the state for compensation of for wrongful im prisonments. The High Court held that the defendants Nos. 2 to 5 acted in exercise of their statutory power and the in such circumstances a person aggrieved by the their acts could have no claim against the Govern ment. It also held that the state could not be liable liable for the improper conduct of public servants in the discharges of government functions unless those acts had been done under the order of the Govern ment or had been subsequently adopted and ratified by it. The federal court by majority judgment accepting the second ground and observed a as follows [p. 44]-

'As we however agree with the learned judges as to the other grounds of their decision if their favour of defendants No.1, it is unnecessary to discuss this aspect of their decision.'

In my view, neither the decision of the Madras High court nor of the Federal courts assist the government in the plea about the need of ratification in the government of the acts of the government officers. In Ross's case I.L.R [1914] Mad 55: AIR 1915 mad 434 it was held that the case were done in the exercise of sovereign powers and the therefore the state an immune form liability. So far as the decision of the concern what their lordship held was that the conduct, of government servants in the discharge of governmental functions was questionable the go government could not be held liable unless it was established could that those of ac had been done under the orders acts had been done under had been subsequently adopted and ratified by it. It is thus clear that the question or ratification's of arises only when government is sought to be held liable only for tort committed by it servants in the discharge of sovereign functions. If the act is ratified., the government becomes liable notwithstanding that the ac was in the discharge of sovereign functions.

(10) As stated, above the powers of Marking recoveries were delegated to the Mamlatdar by the collector and the Mamaltdar in his turn delegated those powers to the Circle Officer. It is true that the Circle Officers was exercising powers under the Circle Officer was general authorization. The powers under the were powers conferred by statutes upon the collector. It is equally clear that the circle officers had exceeding the limit of the powers given to the collectors by the statute and delegated to him. The law does not empowers recovery of arrears by attachment the seizing the good. Which are in the possession of third party. In his connection, it

'No tax shall be levied or collected except by authority of law'

Besu, in this 'commentary on the constitution of India.' 4th Volume 4th Edition, 1963, has explained the meaning of the words 'levied' as follows: [page 229]-

'The words 'levy and collection' are used in this article 265 in comprehensive sense and are intended to include will be useful to refer to the provisions of Article 265 of the constitution of India. Which provides:the entire process of taxation commencing from the taxation of statutes to the taking away of the money from the pocket of the citizen. What the article enjoins is that every states in this entire process must be authorised by the law'.

The action taken by the circle officer in seizing the goods was not empowered by law. It is on the grounds also that the act was illegal At the same time, in the view of the fact that the circle officers taken to be doing as act in the discharge of his statutory duties.

(11) I may now refer to the ruling relied upon by Mr. Abhyankar in support of the proposition that he government cannot he held liable in tort, when the wrongful act has been committed by subordinate officers in performance and their statutory duties. I will discuss those ruling only briefly with view of the show that the facts of this case do not attract the principles laid down therein.

(12) The first decision in that connection is reported in Shivabhajan v. Secy. Of state for India ILR [1904] 28 Bom 314. In that case some sixty - two thousand and odd bundles of hay were attached by the chief constable of the Mahim while they were in the plaintiff possession. Superintended of the said quality of the hay but only 14,700 bundles were delivered and the remaining 47,800 were not given over to the plaintiff. The plaintiff used to recover Rs. 293 - 12 -10 from the defendants as damages. The chief con stable as the public servant. The seizure was occasioned as accounts complaints lodged against the plaintiff of his having stolen the hay. The charge of theft was not sustained and that is why it plaintiff demanded the return of the hay. It was held that the chief constable seized the hay to in obedience to an order of the executive government but in performances of statutory power vested in him by the legislature. It was also pointed out that the seizure of the hay was not in any sense productive which profit was no ratification of the adoption of the act. In my opinion the decision is distinguishable on the grounds that the original seizure of the goods was only not illegal but was authorised by law and the seizure was in effect, in pursuance's of the statutory powers in effect in the pursuance of the chief constable. A number of bundles appeared to have been lost while they were n the custody of the lost while they was in custody of police. But the state could not held to responsible for the loss occasioned due to negligence of its officers by reasons of he fact that the good has been seized in exercise of the statutory powers. In the present, case the seizure of goods itself it illegal. The question of subsequent damages caused to the good while they were in the custody of the Mamlatdar has not much bearing on the issue in and. Mr. Abhyankar also relied upon the two decisions of the Allahabad High court reported in ram Gulam v. U.P. govt. : AIR1950All206 and another decision of the Madhya Pradesh High Court reported of the of M.P. v. Singhai Kapoorchand. : AIR1961MP316 . The fact as of the theses cases were similar to the facts in shivabhajan's case. ILR [1904] 28 Bom 314, and the view taken by this courts viz., the government cannot be held liable for damages in respect in the discharge of statutory powers, was upheld. I may only add that the proposition of the broadly stated in the Shivabhanjan's case ILR [1904] 28 Bom 314, ma require reconsideration in view of the decision of the supreme court in vidywati's case to which reference will be made presently.

(13) In this court, Mr. Abhyankar raised another point of law. He emphasized the well known distinction between an action taken in exercise of the sovereign power of the state and an action or welfare activities. In a recent decisions of the welfare supreme court in state of Rajasthan v. Vidyawati : AIR1962SC933 , the supreme court, after referring to the decisions of different High courts and also referring to the provisions of Article 300 of the constitution of India, held that in respect of the acts done by the subordinates or agents of the government otherwise than in exercise of the sovereign powers, the state can e other made vicariously liable for the tortuous act, like any other employer. According to the view taken by the supreme court the government in liable to in respect of that act done in commercial transactions of and also acts done in respect of the multifarious activities undertaken by the government would not be liable for acts of negligence of its servants in the discharge of sovereign functions. Mr. Abhankar argued that they levy of tax and the recovery of tax in undoubtedly a sovereign function. No one except to state can possibly function. No one except the state can possible levy a tax or proceeds to recover to levy the same. Since ancient times the powers to levy a tax has been the specific hall mark or attribute of the sovereign functions. At the same time we cannot ignore the provisions or collectors of Articles of law. The only powers which the state can exercise in only performance of the sovereign can functions is to recover the tax under the authority of law. But in the present, the Circle officers has proceeded to levy and recover the tax without any authority and in fact, beyond the authority. The immunity of the state in respect of act done by its subordinates in the exercise of sovereign powers cannot be considerate as dogma or a mantra and will have to be considered on the fact of the each case. In this connection may refer to certain observations made by the Basu in this 'commentary on the constitution of India'. 4th Edition, Vol. IV 1963, at page 404. After citing the passage from the judgment of the supreme court in Vidyawati was case. : AIR1962SC933 to the following effect.'

'................ As already pointed out, the law applicable to India in respect of the torts committed by the servant of the government was very much in advance of the common law, before the enactment, of the Crown proceeding Act, 1947, which has revolutionised the law in the United Kingdom, also.......... when the rule of the immunity is favour of the Crown, based on common law in the united Kingdom, has disappeared from the land of its birth, there is not legal warrant for holding that is has any validity in this country, particularly after the constitution.'

The learned author observes:

'In explaining the reason, why the courts should take a broader outlook, the supreme court appears to have endorsed the views expressed by the Rajasthan High court in the judgment appealed from Vidyawati v. Lokumal AIR 1957 Raj 305 '....................... the state of is not longer a mere police station.................. Ours of now a welfare state and it is I the process of becoming a full - fledged socialistic state. Everyday it is engaging itself in numerous activities in which any ordinary person or group of person can engage himself or themselves. Under the circumstances there is all he more reason that it should not be treated differently from other ordinary employees when it is engaging itself in activities in which any private person could engage himself and so observed the supreme court - 'Now that we have by our constitution, established a Republican form of Government, and one of he objectives is to establish a socialistic state with its varied industrial and other activities employing, a large army of servants, there is n justification in principles he held liable vicariously for the tortuous act of its servant.'

An instances of broad outlook is to be found in the decision of the Allahabad High court in : AIR1962All233 [cited above on another context] In this case a motor vehicle had been requisitioned in by an order under the U.P. Requisition of Motor Vehicles Act 1947. The court held that the order was mala fide and hence invalid and awarded damages for the injury causes to the vehicle during the period of requisition. Obviously compulsory requisitioning of property under statutory powers is an act which a private a person could never to and it is patent instances of exercise of the sovereign powers the state. According to the P & O. Dictun, the suit could not be decreed. Nevertheless, the courts decreed the suit on the ground that -

'..................... Judicial authority and public policy demands that the state today cannot claim immunity from the tortuous liability in respected of the tortuous act of its servants and agents.

The task of the High courts and the subordinate of courts would be course have been easier wati's case that it was secretary have been easier watis case that it was secretary of state v. Vidya [Ilr 5 Mad 273] and not the P & O case in India. So long as this is not done the litigant the Bench as the bar would be swinging in the balance between the exploded pillar of absolute immunity and the not - yet certain post of absolute liability for all acts done under of the colour of municipal law.

The facts in secy. Of state v. Hari. ILR [1882] Mad 273, were somewhat similar to the facts of the present case. In that case the plaintiff had purchased a quality of salt at Bombay and paid excise on it at the rate of Rs. 1-13-0 per maund, the rate leviable under the law there in force., and dispatched it by sea to certain ports. While the salt and was in transit, act 18 of the 1878 was passed and came int o force. By that act the import duty on the into force. By that act the import duly on the salt was raised to Rs. 2-8-0 import per maund. But in virtue of a notification issued by the Governor - General in council under the authority of the India tariff act, 1875 importers were allowed a deduction of the excise already paid, and consequently they were chargeable only with the difference between the excise and the import duty. On the landing of the salt in he madras presidency., the collector required to respondents to pay the difference, thirteen annas per maud, between the excise already paid the import duty leviable under the act of 1877 and the respondents having complied with the collectors requirement in order to obtain possession of the salt, instituted the suit of recover, the sums of they has raised by the defendants was that he court had no jurisdiction of entertain the suit. This plea was upheld and the suit was dismissed. On appeal, the teamed judge held: [p. 273]-

'Where is an act complained of its professedly done under the sanction of the municipal law, and in the exercise of powers conferred by that law, the fact that it is done by the sovereign powers and is not an act which could possible be done by a private individual does not oust the jurisdiction of the civil courts:'.

At page 283 it was pointed out:

'........................ In the case before us the demand of which the respondents complained was levied by the collectors acting as he believed under the authority of municipal law.'

In my view the dictum laid down by the Madras High court is applicable to the facts of the present case. In the present case the act is purported to be done under the authority of Ss. 150 and 154 of Land Revenue code, but it is found that the act in only illegal but unconstitutional.

(14) The result, it the appeal succeeds and is allowed with costs throughout. The plaintiff suit is decreed against all the defendants. Defendants Nos 5 - 7 and 9 are not liable in their individual capacities.

(15) Appeal allowed.

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