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Malkarjunappa Shivmurthiappa Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 301 of 1969
Judge
Reported in(1978)80BOMLR337
AppellantMalkarjunappa Shivmurthiappa
RespondentThe State of Maharashtra
DispositionAppeal allowed
Excerpt:
.....or purporting to act in exercise of its sovereign powers in effecting seizure of plaintiff's motor lorry for alleged non-payment of vehicles tax--motor vehicles act (iv of 1939), seed. 3(1), 22(1), 42(1) and 129a--bombay motor vehicles tax act (bom. lxv of 1958), sections 15(h) and 16(1)(a)--code of criminal procedure (v of 1898), sees. 4(o), 5(2) and 550--bombay police act (bom. xxii of 1951), section 161--whether seizure and detention of vehicle justified--limitation for suit-constitution of india, article 141--whether state entitled to take up defence of immunity though not pleaded.;in view of the decision of the supreme court in the case of kasturi lai v. state of u.p. [1956] a.i.r. s.c. 1039, the state cannot be sued in respect of the wrong, if any, done by its officers, in..........guilty of contributory negligence, firstly, because he had not paid the tax due in respect of the suit-lorry up to the date of the judgment, though section 4(7) of the bombay motor vehicles tax act, 1958, made the tax leviable under section 3 in advance of the tax unpaid from april 1, 1960; and this deprived him of his right to ply the vehicle.25. secondly, he also found that there was no satisfactory evidence to show that the plaintiff had given at any time any application to return the lorry to him observing as follows:the plaintiff as a reasonable person in the circumstances of this case would have immediately on the attachment of his suit lorry by the p.s.i. degloor would have paid the tax due in respect of it to the r.t.o. aurangabad and proving that fact before the psi degloor.....
Judgment:

Vaidya, J.

1. The above First Appeal was filed by the original plaintiff, who died during the pendency of the appeal and is now represented by his heirs.

2. The plaintiff filed the Special Suit No. 39 of 1966, on August 29, 1966, in the Court of the Civil Judge, Senior Division, Nanded, against the respondent-defendant-the State of Maharashtra, to recover Rs. 39,000 as the price of his motor-truck and Rs. 75,000 by way of damages for the loss of income to him, from the date of seizure and detention of the truck, by the police officers, from August 30, 1962, to the date of the suit, at the rate of Rs. 20,000 per year and further damages for the loss of income at the above rate until the date of realisation of the price of the truck and for costs of the suit from the defendant.

3. The allegations made by the plaintiff in the plaint, can be briefly stated as under: The plaintiff had been carrying on business as a public carrier for a long time; and in connection with his business, he had purchased a second-hand lorry at Hyderabad, bearing No. APT 1573, as registered with the Road Transport Officer, Hyderabad (AP) for Rs. 11,000. The plaintiff plied the lorry in the condition in which he purchased it for three to four years and thereafter replaced the engine of the lorry with a brand new Tata Mercedes engine, purchased by him from the Tata Mercedes dealer at Secunderabad, M/s Rajeshwar for Rs. 12,000.

4. He also purchased a brand new chassis at Rs. 12,000 and thereafter he got the entire body of the lorry built and coloured, at the cost of Rs. 3,500 at the workshop of M/s Narsinha at Putali Bawadi Hyderabad. He provided the lorry with several spare parts of the value of Rs. 6,000.

5. Thus, he spent about Rs. 22,700 and brought the lorry into new condition and maintained it so till it was seized by the police officers. He had even provided the lorry with six new tyres of the value of Rs. 3,500 and two new batteries of Rs. 500. In addition to that, he kept one tyre with the lorry, of the value of Rs. 500. The lorry, according to the plaintiff, was worth Rs. 39,500 at the time of the seizure.

6. At all relevant times the lorry bore No. BYU 281 with the Road Transport Officer, Aurangabad. It was used as a public carrier for carrying goods on freight for earning profits until june 30, 1962. The plaintiff claimed to have paid the taxes until that day and wanted to suspend the plying of the vehicle due to bad condition of the roads caused by heavy rains.

7. He, therefore, intimated to the Road Transport Officer, Aurangabad, by an application sent, under certificate of posting, dated June 30, 1962; and thereafter the plaintiff sent the vehicle on July 3, 1962, to Degloor, through a driver Habib Khan Rahman Khan, for depositing the same at the plaintiff's house, with one thousand bricks required for his own construction.

8. As soon as the lorry was left at the plaintiff's place at Degloor, the Degloor police came to the house of the plaintiff and caused it to be removed to the Degloor Police Station saying that the P.S.I, wanted the same for checking purposes. The lorry was thereafter detained and the driver was sent back.

9. On receipt of the information of the seizure and detention of his lorry the plaintiff went to the Degloor Police Station and made inquiry about it. He was told by the P.S.I. Shimpi, that the lorry driver was not in possession of the licence and no tax was paid under the Bombay Motor Vehicles Tax Act, 1958.

10. It is alleged that the plaintiff informed P.S.I. Shimpi that under the law he could pay quarterly tax when he wanted to ply the vehicle; and in case he wanted to suspend plying, he could intimate the Road Transport Officer concerned, within a fortnight from the date of the expiry of the period for which the taxes were last paid; and so he had informed the Road Transport Officer, on June 30, 1962, that he was not going to ply; and showed the P.S.I. the certificate of posting of the same.

11. The P.S.I. Shimpi rejected the plaintiff's request to return the lorry in spite of this and in spite of the fact that the plaintiff was prepared to furnish a heavy security, as the plaintiff was anxious not to allow the lorry to lie unheeded and to remain unprotected in the police station. P.S.I. Shimpi was warned by the plaintiff that the Government would be held responsible for1 the plaintiff's loss to be caused by the unlawful detention of the lorry; and this enraged P.S.I. Shimpi, who drove out the plaintiff from the police station.

12. It was only, on July 17, 1964, that the Degloor Police filed a complaint in the Court of the Judicial Magistrate, First Class, Degloor, against the plaintiff, showing therein that the driver Habib Khan was absconding; and even then the police did not deposit the lorry in the Court. The plaintiff was acquitted of the charges levelled against him, on January 6, 1965.

13. Even thereafter, the police refused to return the lorry when the police were asked to return the lorry, by an application dated February 10, 1965. The plaintiff therefore, submitted that the seizure and detention of the plaintiff's lorry was illegal, unauthorised and mala fide; and that he was entitled to damages as claimed in the plaint. It may be noted that the plaintiff had served a notice under Section 80 of the Code of Civil Procedure, on the State Government, on May 2, 1966, before the filing of the suit.

14. The suit was resisted by the defendant-the Government of Maharashtra by riling its written-statement, exh. 9, denying that the lorry was worth Rs. 39,000; and contending that the seizure and detention of the lorry was legal and proper as the driver was absconding; the plaintiff and the absconding driver were prosecuted under Sections 86 and 3/112 of the Bombay Motor Vehicles Act, 1939 and Section 16(1)(a) of the Bombay Motor Vehicles Tax Act, 1958; and, the plaintiff and the driver failed to satisfy the P.S.I. regarding the documents demanded from the driver, authorising the driver to drive the lorry and showing payment of the taxes in respect of the lorry.

15. It was submitted that although the plaintiff was acquitted, on January 6, 1965, the case against the absconding driver was kept undecided; and as the lorry was under seizure, and the plaintiff failed to produce the relevant documents, the lorry had to be kept at the Degloor Police Station.

16. It was also submitted that the allegations made by the plaintiff that the seizure of the plaintiff's lorry was effected on July 3, 1962, whereas the challan against the plaintiff was sent to the Court on July 17, 1964, and since then the police did not take any effective steps to apprehend the absconding driver and the panchanama of the seizure of the lorry was made on September 27, 1962, are quite incorrect.

17. The Government blamed the plaintiff for not moving the Court for directing the police to return the lorry to him; and the defendant State did not produce the lorry before the Court because, the plaintiff never gave any such application. The defendant submits that the lorry was not seized on July 3, 1962, but on September 27, 1962.

18. It was submitted by the defendant that P.S.I. Shimpi was authorised to seize the lorry under Section 129A of the Motor Vehicles Act, 1939, as neither the driver nor the plaintiff could produce the relevant documents authorising the driver to drive the lorry and showing the payment of taxes as required by Section 16(7)(a) of the Bombay Motor Vehicles Tax Act, 1958.

19. It was further contended that although the plaintiff was acquitted, no judgment was given regarding the offence under Section 16(7)(a) of the Tax Act, 1958. The State blamed the plaintiff for not moving the Court for the release of his lorry and denied that the plaintiff was entitled to claim any damages.

20. In view of these contentions, the learned Judge framed ten issues. The plaintiff led oral and documentary evidence in support of his claim. On behalf of the defendant, the Motor Vehicle Supervisor, Kadam and P.S.I. Shimpi gave evidence. Among the documentary evidence, was a certified copy of the register of cases tried by the Judicial Magistrate, First Class, in Summary Case No. 188 of 1964, in the Court of the Judicial Magistrate, First Class, Degloor, produced at exh. 91, where the learned Magistrate appears to have acquitted the plaintiff of the offence under Section 3/112 of the Motor Vehicles Act, stating that the real accused was the driver, who was absconding.

21. The learned Civil Judge, Senior Division, Nanded, by his judgment and decree, dated February 27, 1969, dismissed the suit, though he held that the lorry in question belonged to the plaintiff; and it was worth Rs. 39,500 at the time of its seizure on September 27, 1962, and that there would not be much difference in its value between the dates July 3, 1962 and September 27, 1962.

22. He further held that the seizure of the vehicle by the P.S.I. Degloor, though not mala fide and malicious, was wrongful, notwithstanding that he found that the documentary evidence discussed by him in paragraphs 24 and 25 of his judgment, showed that from April 1, 1962, the plaintiff in arrears of tax.

23. The learned Judge held that there was no provision; and particularly there was none under the Motor Vehicles Act, 1939, which authorised the wrongful detention, though it was not mala fide and malicious. He also held that this was a gross abuse of the position and power given to the police and particularly by the P.S.I. Degloor.

24. He however, dismissed the plaintiff's suit though he came to the conclusion that as a result of the action of the police by keeping the lorry in an unprotected way from September 27, 1962, it had worn out absolutely and had become useless for all purposes. He found that the plaintiff himself was guilty of contributory negligence, firstly, because he had not paid the tax due in respect of the suit-lorry up to the date of the judgment, though Section 4(7) of the Bombay Motor Vehicles Tax Act, 1958, made the tax leviable under Section 3 in advance of the tax unpaid from April 1, 1960; and this deprived him of his right to ply the vehicle.

25. Secondly, he also found that there was no satisfactory evidence to show that the plaintiff had given at any time any application to return the lorry to him observing as follows:

The plaintiff as a reasonable person in the circumstances of this case would have immediately on the attachment of his suit lorry by the P.S.I. Degloor would have paid the tax due in respect of it to the R.T.O. Aurangabad and proving that fact before the PSI Degloor would have got released his truck from the seizure. He has failed to do so. This conduct of the plaintiff shows his utter carelessness and disregard notwithstanding that his suit seized truck was valuable. The plaintiff himself being guilty of contributory negligence I hold that he is not entitled to recover Rs. 39,500 which are claimed by him as a value of his suit seized lorry.

26. It is surprising that in the lower Court the State did not plead immunity from liability to be sued for the tort, if any, committed by P.S.I. Shimpi. The dismissal of the suit was challenged by the plaintiff by filing the above first appeaL

27. Mr. Paranjpe, the learned Counsel appearing for the appellant, submitted that having rightly come to the conclusion that the seizure and detention of the lorry were illegal and in the absence of any plea of immunity for the liability for the tort committed by P.S.I. Shimpi, the learned Judge erred in dismissing the plaintiff's suit.

28. Mr. Bhonsale, the learned Government Pleader submitted that merely because the immunity was not pleaded by the State, the learned Civil Judge, erred in holding that a liability in respect of the tort committed by the P.S.I. could be imposed on the State. In support of this argument, he relied on the decision in Kasturi Lal v. State of U.P. : (1966)IILLJ583SC , and the decisions following it; laying down that the State is not liable, in this country, in respect of the tortious acts done on behalf of its officers acting or purporting to act in exercise of its powers which are called the sovereign powers.

29. The learned Government Pleader further contended that the learned Civil Judge was not quite right when he came to the conclusion that the seizure and detention of the lorry was wrongful or illegal, merely because of the acquittal or merely because Section 129A of the Motor Vehicles Act did not apply or Section 42(2) was not applicable or there was no contravention of any other conditions of Motor Vehicles Act though neither the driver nor the plaintiff produced any document relating to the lorry for the examination of P.S.I. Shimpi.

30. The learned Government Pleader also relied on Section 515 of the Code of Criminal Procedure, 1898 and Section 161 of the Bombay Police Act, 1951, and contended that the act of the P.S.I. was completely protected by these sections as well as Section 129A of the Motor Vehicles Act, 1939, in the facts and circumstances of the case.

31. The relevant sections of the Motor Vehicles Act, 1939 are as follows:

Section 3.(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to himself authorising him to drive the vehicle and no person shall so drive a motor vehicle as a paid employee or shall so drive a transport vehicle unless his driving licence Specifically entitles him so to do.

Section 22.(1) No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place for the purpose of carrying passengers or goods unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner.

Section 42.(1) No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, (whether or not such vehicle is actually carrying any passenger or goods) save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or the Commission authorising the use of the vehicle in that place in the manner in which the vehicle is being used:

Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage:

Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods vehicle either when carrying passengers or not:

Provided further that a public carrier's permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.

Section 129A. Any police officer authorised in this behalf or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 22 or without the permit required by Sub-section (1) of Section 42 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle:.

32. The learned Civil Judge was not right when he came to the conclusion that P.S.I. Shimpi acted wrongly in seizing and detaining the lorry notwithstanding the fact that neither the plaintiff nor the driver tried to satisfy P.S.I. Shimpi that the driver had a licence under Section 3 or the requirements of the provisions of Sections 22 and 42 were fulfilled by the documents, if any, which were in possession of the driver or the plaintiff. In these circumstances, the learned Judge was not right in holding that P.S.I. Shimpi was not justified by the powers given to him under Section 129A in seizing and detaining the lorry.

33. The next relevant provision is Section 16(7)(a) of the Bombay Motor Vehicles Tax Act, 1958, which makes it an offence if a registered owner or any other person, has the possession or control of any motor vehicle used or kept for use in the State without having paid the amount of the tax, or additional tax, due in accordance with the provisions of the Act in respect of such vehicle.

34. Section 15(b) of the same Act also authorizes any police officer, or officer of the Motor Vehicles Department, in uniform not below such rank as may be prescribed by the State Government in this behalf to require the driver of any motor vehicle in any public place to stop such vehicle and cause it to remain stationary so long as may reasonably be necessary for the purpose of satisfying: himself that the amount of the tax due in accordance with the provisions of this Act in respect of such vehicle, has been paid.

35. In our opinion, these sections authorised P.S.I. Shimpi to detain the vehicle till the driver and the plaintiff satisfied him that the taxes were paid. It is common ground that the plaintiff has not cared to pay any tax from April 1, 1962 and he has tried to defend himself by saying that he had sent an application on January 30, 1962. Even that is not proved satisfactorily in this case by producing a certified copy of the application or by compelling the Regional Transport Officer to produce a copy of the application.

36. Moreover, the attention of the lower Court was not drawn to Section 550 of the Code of Criminal Procedure, which lays down that:

Any police-officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. Such police-officer, if subordinate to the officer in charge of a police-station, shall forthwith report the seizure to that officer.

37. It is clear that having regard to the definition of the word 'offence' in Section 4(o) and the provisions of Section 5(2) of the said Code of Criminal Procedure, 1898, the police officer, P.S.I. Shimpi, had every authority to seize and detain the lorry in the facts and circumstances of the case.

38. The attention of the lower Court was also not drawn to the provision of Section 161 of the Bombay Police Act, 1951, which gives a further protection to the police officers and the State in respect of any act done under colour or in excess of any such duty or authority as aforesaid, or wherein, it shall appear to the Court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained, or shall be dismissed, if instituted, more than six months after the date of the act complained of. It is common ground that the requirements of Section 161 were not fulfilled in the present case; and hence on this ground alone, the suit was liable to be dismissed.

39. Apart from these considerations, of the relevant status, it is also curious to note that the attention of the lower Court was not drawn to the decision in Kasturi Lal v. State of U.P., which in our opinion applies in the facts and circumstances of the present case, to the seizure and detention of the lorry; and renders the suit liable to be dismissed on that ground. In view of the decision, the State cannot be sued in respect of the wrong, if any, done by its officers, in the exercise of the powers to enforce the law in respect of the motor vehicle, which must be considered to be the power included in the powers of the State described as the 'Sovereign powers'.

40. Mr. Paranjpe submitted that the said decision cannot help the State in the present case, as in the written-statement the immunity was not claimed by the State. However, whether the immunity was claimed or not the law laid down by the Supreme Court, must be followed by the subordinate Courts, in administering the justice, in view of Article 141 of the Constitution of India. The law laid down by the Supreme Court is the law; and since law cannot be ignored because a party to the suit is ignorant of it or fails to plead or refer to it before the Court.

41. The learned Civil Judge is besides quite right in holding that the plaintiff himself has contributed to the negligence, if any, of the police officers, by not making an application, compelling the police to return the vehicle to him. No error could be found in the findings recorded by the learned Judge.

42. In the result, we find no reason to interfere with the decree passed by the learned Civil Judge, dismissing the suit with costs, on February 27, 1969. The First Appeal is therefore dismissed with costs.


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