(1) This appeal is directed against the judgment of the learned Subordinate Judge, Anantapur, in O. S. No. 8 of 1958. The facts necessary for the determination of the questions arising in this case are as follows : -
The plaintiff J. Kuppanna Chetty, Ambati Ramayya Chetty and Company of Kadiri, is a firm carrying on business as groundnut and mundy merchants. They took on lease a groundnut decorticating factory at Kadiri, known by the name of Vittal Seshappa Chetty Sons, Groundnut Factory. The factory was under the management of one of the partners, Kuppanna Chetty. Vittan Subbayya Chetty, son of Seshayya Chetty was in arrears of Income-tax relating to the year 1951-52 and 1952-53 to the extent of Rs. 20,921-10-0 and Rs. 9,035-4-0, respectively. The Income-tax Officer issued a certificate under S. 46 (2) of the Income-tax Act, 1922, to the Collector of Bellary for realisation of the said arrears. The Tahsildar, Kadiri, was directed by the Collector to attach the said factory, buildings and machinery, which he did on 17-6-57. The attachment of the boiler engine and decorticator, the engine, factory building, and the godowns of the factory, etc. , was effected, by the Tahsildar in the presence of the Deputy Tahsildar, the village munsif and karnam, by locking and sealing the factory buildings, and keeping a watch-man to guard the articles attached. It was made clear even at that time that the groundnut, etc. , stored by the plaintiffs could be removed by them in the presence of the village officers. The plaintiff-firm made attempts to obtain permission for working the factory by approaching the revenue authorities, but in vain. The plaintiff then moved this Court by Writ Petition No. 550 of 1957 for a direction for the removal of locks and the same was ordered on their furnishing security in the sum of Rs. 30,000 but by the time the security was furnished, the lease period had expired on 30-9-1957. The plaintiff's case is that the procedure followed by the Tahsildar in locking the factory was contrary to law and his refusal to remove the locks even after they offered to furnish security was mala fide, and that by reason of his unlawful conduct, they have suffered loss to the tune of Rs. 31,510. They, accordingly sued the State of Andhra Pradesh, the Collector of Anantapur, and the Tahsildar of Kadiri on the ground that they were jointly and severally liable.
(2) The defendants filed a common written statement, contending, inter alia, that the revenue department of the State of Andhra Pradesh is only a collecting agency for arrears of income-tax, and that it was open to the plaintiffs to approach the Income-tax Authorities either for the withdrawal of the Certificate issued by the Income-tax Officer under S. 46 (2) of the Income-tax Act, or for stay of realisation of the arrears. As the machinery was under attachment, the plaintiffs could not be permitted to carry on the decorticating operations. By the time the security was furnished as per the orders of the High Court in Writ Petition No. 550 of 1957, the lease period had expired, and hence the factory was not released. It became necessary to lock the factory in order to keep the machinery, etc., safe, and it was a bona fide action on the part of the Tahsildar. The defendants allowed the stock of groundnut in the godowns of the factory to be removed by the plaintiffs, and in fact it was removed. Neither the State Government nor the defendants are liable for any damages much less the amount claimed. The Government Officers acted in good faith and bona fide with a view to realise arrears of income-tax. The plaintiff is not entitled to any relief, and he has no cause of action.
(3) The learned Subordinate Judge held that the action of the Government was not illegal, and that there was no tort committed by them in locking the engine room and the godowns. He also found that the damages suffered by the plaintiff would not amount to more than Rs. 2,800, but, inasmuch as the conduct of the Tahsildar was not illegal, he dismissed the suit.
(4) Against this decree and judgment, the plaintiffs have preferred this appeal.
(5) In this Court, the defendants filed C. M. P. No. 3476 of 1964 for filing an additional written statement, which was ordered by Manohar Pershad and Chandrasekhara Sastry, J J ., on 20-3-1964. By this amendment a further contention is raised that the suit is not maintainable, as it was not filed against the Collector and the Tahsildar (defendants 1 and 3) in their individual capacity. The arrears of income-tax were due to the Union Government, and the State Government, and the Collector acted only as its agent pursuant to the Certificate under S. 46 (2) of the Indian Income-tax Act. As such the Union Government or the Income-tax Officer concerned had to be impleaded, and in their absence the suit is not maintainable. In any event, it is only the Union Government that could be made liable, but not the State Government and there is no cause of action against the State Government.
(6) Sri. N. M. Sastry, the learned counsel for the appellants contended immovable property, and that the attachment effected by the Tahsildar in the instant case is not in accordance with law and is illegal. The defendants, therefore, jointly and severally liable for the damage suffered by the plaintiff from the said tortious or wrongful conduct.
(7) In refuting this argument, Sri Sanakara Rao, the learned Government Pleader, made the following submissions:-
1. The property attached is not immovable property, but movable property, and the attachment effected is legal.
2. The State Government or the Central Government cannot be made liable for the torts committed by is servants.
3. The Tahsildar cannot made liable in his official capacity for the tort alleged to have been committed by him.
4. The Collector as the official superior of the Tahsildar cannot be made liable for the tort committed by the Tahsildar.
5. Arrears of income-tax are due to the Central Government act only as their agents, and if at all, is the Central Government that should have been sued, but not the State Government.
We shall now examine these contentions seriatim.
(8) The manner in which the property was attached in this case would be evident from Ex. A-1, the attachment order, dated 17-6-1957, and Ex. B-5, the Mehzar, dated 17-6-1957. Exhibit A-1 is in Form No. 1, and is a distraint order under S. 8 of the Madras Revenue Recovery Act (hereinafter referred to as the Act). It was issued by the Tahsildar, authorising the Revenue Inspector of Kadiri to distrain the property mentioned therein for recovery of the arrears of income-tax due from the defaulter, Vittal Subbayya Chetty. It mentioned the date of distress and delivery of the copy to defaulter as 17-6-1957. It also recites that unless the defaulter paid the amount due with Batta and all expenses, the distrained property will be brought to sale. Form No. 2, which is part of Ex. A-1, gives the inventory of the attached property under S. 9 of the Act. Viz., (1) the boiler engine for decorticating groundnut kernel and the decorticator bearing No. M/22159 of 76396 of an estimated value of Rs. 10,000, (2) Engine shed and the factory building, of the value of Rs. 6,000, and (3) Factory godowns and the compound wall, etc., of the value of Rs. 25,000.
(9) It is very significant to note that Form No. 2 described the attached properties as movable properties and the attachment purported to be under Ss. 8 and 9 of the Act. The marginal note for S. 8 is, 'Rules for seizure and sale of movable property'. and the marginal note for S. 9 is 'Procedure when defaulter neglects to pay after notice'. They empower the seizure and sale of movable property for recovering arrears of revenue. According to it the Collector or other officer empowered by him has to furnish to the person employed to distrain the property a demand in writing specifying the arrears for which the distress is issued, and the date on which the distress is issued, and the date on which arrears fell due. A copy of this has to be furnished to the person employed to distrain, requiring him to deliver a copy of such writing to the defaulter endorsing thereon a list of the property to be distrained, and the name of the place where it may be lodged or kept. The writing shall also state that the distrained property shall immediately by brought to sale, unless the amount be previously discharged. When the defaulter is absent, a copy of the writing shall be affixed or left at his usual place of residence or the premises where the property may have been distrained before the expiration of the third day from the day of the distress. When the amount due is not paid pursuant to the demand, the distrainer shall transmit an inventory of the property distrained to the nearest pubic officer empowered to sell the distrained property for being publicly sold.
(10) It is clear from these provisions that the procedure in the case of movable property is by its seizure and sale, and that is the very procedure adopted in the instant case. It is also evident from Ex. B-5 that the village munsif took possession of the attached property aforesaid, and that in the presence of the Dy. Tahsildar, the village officers locked and sealed both the engine building and factory, and arranged a village servant to keep a watch. Exhibit B-5 also recites that the groundnuts belonging to the Ambati Ramayya and Kuppanni Setti partners of the plaintiff-firm could be removed whenever they required the same in the presence of the village Munsif.
(11 & 12) The procedure to be adopted for the attachment of immovable property is indicated in Ss. 25 to 44 of the Act. According to S. 25, before a Collector or any other officer authorised by proceeds to attach the land of the defaulter, or building thereon, he shall cause in written demand to be served upon the defaulter specifying the amount due, the estate or land in respect of which it is claimed, and giving other particulars. The demand shall be served by giving a copy of it to the defaulter or an adult male member of his family at his usual place of abode, or to his family at his usual place of abode, or to his authorised agent, or affixing a copy thereof on some conspicuous part of his last known residence, or on some conspicuous part of the land about to be attached. When the amount due is not paid as per the demand, the officer shall proceed to recover the arrear by the attachment and sale of the defaulter's land.
(13) Section 27 prescribes the mode of attachment thus :
'The attachment shall be effected by affixing a notice thereof to some conspicuous part of the land. The notice shall set forth that unless the arrear, with interest and expenses be paid within the date therein mentioned, the land will be brought to sale in due course of law. The attachment shall be notified by public proclamation on the land, and by publication of the notice in the District Gazette.'
(14) The procedure for the management of the attached property and the other steps for sale and subsequent to sale are all indicated in the succeeding sections.
(15) Section 27, makes it manifest that in the case of immovable property, the attachment has to be effected only by the affixing a notice thereof to some conspicuous part of the land, and it shall also be notified by public proclamation and publication of the notice in the District Gazette. The procedure adopted in the instant case does not accord with S. 27 nor satisfy any of the requirements. If the property attached is immovable property, it follows that the procedure adopted by the Tahsildar in the present case is illegal. The question that falls for consideration, therefore, is, whether the property in question is movable property or immovable property. For an answer to this question, it is necessary to refer to the relevant statutory provisions.
(16) Section 25 of the Act has provided for attachment of the land, but the Act has not defined land or building. S. 3 (14) of the Madras General Clauses Act defines 'immovable property' thus:-
' 'immovable property' shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.'
Section 3 (19) defines 'movable property' to mean property of every description except immovable property. A combined reading of these two definitions makes to clear that things attached to earth or permanently fastened to anything to earth or permanently fastened to anything attached to earth are not movable property, but only immovable property. The definitions in the Transfer of Property Act may now be noted. Section 3 defined 'immovable property' thus.
'Immovable property does not include standing timber, growing crop or grass'.
The word 'registered' is defined in that Act to mean, registered in any part of the territories to which the Transfer of Property Act extends under the law for the time being in force, regulating the registration of documents. The phrase 'attached to the earth' is defined to mean :
'(a) rooted in the earth, as in the case of trees and shrubs;
(b) imbedded in the earth, as in the case of walls or buildings; or
(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached.'
Section 2(6) of the Indian Registration Act defines 'immovable property' thus:
'Immovable property' includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass;'
Section 2(9) defines 'immovable property' to include standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property.
(17) On a combined reading of the above provisions the following principles emerge.
(18) Under the Transfer of Property Act, building constitute immovable property and machinery if attached to the buildings for the beneficial enjoyment thereof is also attached to the earth. According to the Indian Registration Act, also buildings and things attached to the earth, or permanently fastened to anything which is attached to the earth, is immovable property, and from this it follows that machinery, if permanently fastened to anything which is attached to the earth, is immovable property. The definition of immovable property in the Madras General Clauses Act is in part materia with the definition in the Registration Act and the Transfer of Property Act, and machinery embedded in the earth for the beneficial enjoyment thereof is immovable property even under the Madras General Clauses Act. Though immovable property has not been defined, the Revenue Recovery Act prescribes the procedure for effecting the attachment of land and buildings. In the case of a factory owned by an individual since machinery is embedded in the building for the beneficial use thereof, it must be deemed to be a part of the building and the land on which the building is situate.
(19) A Bench of the Madras High Court had to consider this very question in Mahomed Ibrahim v. Northern Circars Fibre Trading Co., Coconada, (1944) 2 Mad LJ 60 : (AIR 1944 Mad 492). In that case, the machine of the mill was installed on a small platform and held in position by being attached to iron pillars fixed in the ground to a depth of nearly 6 or 7 feet. By an unregistered agreement with the creditor, a charge was created on the assets of the firm. On a contention by the creditor that they were movable properties and the charge was effective in respect of the plant and machinery it was held that the machinery did not fall within any of the enumerated species of movable property defined in S. 2(9) of the Registration Act. It was further held that from the definition of ' immovable property' in S. 2(6) what is really movable property may become immovable property if it is attached to the earth or permanently fastened to anything attached to the earth, and that so far as the question of registration was concerned, the Transfer of Property Act and the Registration Act were in par materia, and the definitions of immovable property in both the Acts cannot be construed differently. It was also held that the degree and nature of attachment to the earth was a consideration, but it was only a minor one, and that more important consideration was the object of the annexation, which is a question of fact to be determined by the circumstances in each case. It was accordingly held that the plant and machinery of the mill were immovable property as they were so annexed to the floor of the factory as to become part of it, and that the charge over them created by the unregistered agreement was not effective.
(20) The facts in the instant case reveal that the defaulter, Vittal Subbayya Chetty was the owner of the groundnut factory, and that the boiler engine and the decorticator were fixed or embedded in the factory building for the beneficial use of the building, as a factory. Following the above decision, which is binding upon us we hold that the boiler engine and the decorticator are also immovable property, in addition to the land and the building .
(21) The learned Government Pleader made a strenuous effort to convince us that the said machinery is not immovable property . He placed reliance on a decision of the Madras High Court in Narayana Sa v. Balaguruswami Nadar, 45 Mad LJ 385 : (AIR 1924 Mad 187). In that case, in execution of a money decree, properties described as distillery buildings were proclaimed for sale and sold, and the question for consideration was, whether under such a sale the pipes, stills and vats used by the judgment-debtor for the business of the distillery passed to the purchaser. The learned Judge (Kumaraswamy Sastri, J.) found that what was intended to be sold was only the building, but not the plant and machinery. This decision cannot be considered to be an authority for the position that the plant and machinery embedded in the earth by the owner of the building in order to use it as a factory is not immovable property .
(22) The decision in (1944) 2 Mad LJ 60 : (AIR 1944 Mad 492), is by a Bench of two Judges. The question for consideration there was, whether the obligation of an attaching officer of the Court was discharged or not when a bond is taken from the custodian, and that is a case where attachment of movable property was effected by seizure. It has, therefore, no application .
(23) Reliance was then placed on Indian Insurance and Banking Corporation Ltd. , Salem v. S. Paramasiva Mudaliar, 70 Mad LW 205. This decision does not at all help the contention of the Government. On the other hand, it clearly lays down that even though the building which was mortgaged was intended to be used for running a cinema, though it was not a cinema on the date of the mortgage, the electric installations consisting of the mains, the switch boards and the connecting wires between the mains of the building and the mains of the electric supply, form an integral part of the house, and intended to go along with the house, and so also the electric wiring in the building, but not fans, shades, bulbs, etc. , which do not form an integral part of the house. This case has not, and cannot be deemed to have laid down a principle different from that enunciated in 1944-2 Mad LJ 60 : (AIR 1944 Mad 492).
(24) We are, therefore, unable to accept the contention of the learned Government Pleader that the machinery, viz. , boiler engine and the decorticator embedded in the earth are not immovable property.
(25) He then contended that even though legally speaking they may be immovable property, they could be removed and carried away, and if really the Tahsildar had not adopted the procedure applicable to movable property as in the instant case, the machinery would have been carried away, and that the Madras Revenue Recovery Act has not provided for a contingency like this. The grievance pointed out on behalf of the Government even if true does not warrant our holding that the procedure for attachment of movable property is the procedure applicable to the factory building and machinery embedded therein. We, therefore, hold that the attachment effected in the instant case is illegal.
(26) The conclusion, therefore, is irresistible that the Tahsildar in the discharge of the duties imposed on him under the statute, viz. , the Madras Rev. Recovery Act, effected the attachment illegally and caused damage to the plaintiff and has, therefore, committed a wrong or a tort even if he acted bona fide. If an authority is needed, a reference may be made to Perumal Chattiar v. S. A. Peer Mohammed, (1962) Mad LJ (Crl) 467. It was held by the learned Judges of the Madras High Court that the mere fact that without payment of the tax an owner is prevented from using a motor vehicle under S. 11 of the Motor Vehicles Act, did not imply that any executive officer had the power to seize the vehicle. Even granting that the executive authority had the power to seize the vehicle for non -payment of tax, it was held that the seizure in that case was illegal as the time allowed for payment as per the demand notice still remained unexpired on the date of the seizure. It was also held that the fact that the Sub-Inspector who seized the lorry honestly believed that the statute clothed him with the necessary authority to stop the vehicle from plying on the road did not entitle him to claim the benefit of S. 17 (2) of the Madras Motor Vehicles (Taxation of Passengers and Goods) Act, 1952, and that he had committed a tort and was liable in damages.
(27) The next and the most important contention on behalf of the Government is that even assuming that the Tahsilar committed a tort in the discharge of his duties, the Government cannot be made liable.
(28) The liability of the Crown and heads of Departments for torts committed by public servants in England is summed up thus:
'At common law the procedure by way of petition of right generally provided a remedy against the Crown in cases of breach of contract and possibly also enabled real or personal property to be recovered. But it was impossible to sue the Crown in tort, either for wrongs which it had expressly authorised or fro wrongs committed by its servants in the course of their employment. Nor was it possible to sue the head of the department or other official superior of the wrong-doer for all servants of the Crown are fellow-servants and do not stand to each other in the relationship of master and servant. The individual wrong-doer was, of course, liable and could not plead the commands of the King or State necessity as a defence. These rules become highly unsatisfactory when the Crown become one of the largest employers of labour and occupiers of property in the country. Various devices were available to ensure that substantial justice was done. Thus the Treasury might, as a matter of grace, undertake to satisfy any judgment awarded against the individual Crown servant who had committed a tort in the course of his employment. These makeshifts became unnecessary when the Crown Proceedings Act, 1947 was passed.' (Vide Salmond on the Law of Torts, 12th Edition, 1957, p. 57).
(29) According to the Crown Proceedings Act, subject to a few exceptions, the Crown is now made liable for all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject.
(30) Under Art. 300 of the Constitution of our country, the Government of India and the Government of a State may sue or be sued in the respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued, if the Constitution has not been enacted. Therefore, the law which prevailed before 26th January, 1950, continues, but subject to any law that may be made by the Parliament or a State Legislature by virtue of the powers conferred by the Constitution. The law before the said date was regulated by the provisions of the Government of India Acts beginning from the Act of 1858. These Acts made the Secretary of State for India in Council, and, after the 1st April, 1937, the Government of India and of the Provinces of British India, liable in the circumstances in which the East India Company could have been sued before 1858.
(31) From the long catena of cases dealing with this question the following principles may be stated :
(1) The Government is liable for the tort of its servants in the course of transaction which any private person can engage in: (Vide Peninsular and Oriental Steam Navigation Co v. Secretary of State, 5 Bom HCR App 1).
(2) The Government cannot be sued in respect of acts done by its servants in the exercise of its 'sovereign powers' or 'Sovereign Acts', e.g., the maintenance of a military road, or a national highway, or a hospital out of State revenue, as they are all acts done in the discharge of sovereign or Governmental functions. In the case of 'Acts of State', i.e., acts done by a Government servants under the authority of the Government, with respect to a non-resident foreigner, and which are not justiciable in the ordinary Courts of law also, the Government would not be liable, e.g., making war or treaty, annexation of property belonging to an enemy country or national. That is not because the act is one committed by the public servant in the exercise of sovereign powers, but because it is in respect of a non-resident foreigner who cannot invoke the jurisdiction of the Courts of this country, and for an act which is not justiciable in the municipal Courts.
(3) The Government is liable for injury to any of its subjects from any act done by itself or by its servants, if such act is done under the colour of Municipal Law, i.e., when it purports to be in the exercise of power conferred by Statute, but is really illegal.
(4) The Government is not liable for a wrong done by its servants in the course of official duties, unless the wrong was expressly authorised or later ratified by it: (Vide Ross v. Secretary of State, ILR 37 Mad 55: (AIR 1915 434)).
The principle rests on the ground that the act was done by the Government servant in exercise of the authority or discretion vested in him by law or statute, and not in pursuance of any implied authority of the Government.
(32) The leading case on the subject is Gurucharan Kaur v. Province of Madras, 1942-2 Mad LJ 14: (AIR 1942 Mad 539). In that case, the wife and daughter of the ex-Maharajah of Nabha were kept under wrongful detention by a Sub-Inspector and two Head Constables of the Railway Police at Kodaikanal Road Railway Station. They were ordered by the Superintendent of Police to detain the ex-Maharajah of Nabha, but owing to a misunderstanding of the telephone message sent by him, the Sub-Inspector and the Constables detained the wife and daughter of the Maharajah. In a suit by them for damages, for wrongful detention against the Province of Madras, the Superintendent of Police, and the Sub-Inspector and Constables who actually effected the detention, their Lordships, Abdur Rahman and Somayya, JJ., held that the Province of Madras was not liable for the acts of the Sub-Inspector and the Constables done in the discharge of their duty imposed on them by the Statute, viz., S. 54 of the Code of Criminal Procedure. The Government, it was held, could be made liable either when an officer has taken action in pursuance of a statutory duty, or when the act committed by him happens to be in excess of his authority, unless in the latter case the act is done by the Government orders, or subsequently ratified and adopted by it; nor could an action be maintained against the Government for a tort committed by its servants if in the passing of the order in the performance of which the tort was committed the Government was discharging its governmental functions as a sovereign. The learned Judges, on a consideration of the authorities summed up the position thus:
'It will be supererogatory on our part to tread the same ground once again. The authorities clearly established that the Government could not be made liable if the act was done or purported to be done by the defendants in discharge of their duty imposed upon them by statute.'
(33) On appeal, the Federal Court by a majority (Sir Patrick Spens, C. J., and Sir S. Varadachariar, J.) (Sir Muhammad Zafrullah Khan, J., dissenting) upheld this decision, agreeing with the High Court that the State could not be made liable for the improper conduct of public servants unless those acts had been done under the orders of the Government, or had been subsequently adopted and ratified by it. (See Gurucharan Kaur v. Province of Madras, 1944-1 Mad LJ 399: (AIR 1944 FC 41).
(34) A Bench of this Court, of which one of us (Satyanarayana Raju, J.) was a member, held in Krishnamurthy v. State of Andhra Pradesh, : AIR1961AP283 , that in attaching vicarious liability in torts to the State, it is necessary to ascertain whether the acts complained of are the acts in exercise of Government powers which cannot be lawfully exercised save by the sovereign authority or by the person to whom the sovereign authority or by the persons to whom the sovereign authority might delegate such powers, or are they such acts as are done by the Government in pursuance of ventures which a private individual might undertake equally well. The acts of the latter class are mercantile operations, and the acts done in the exercise of governmental powers may fall under different categories.
It was held that the making and maintenance of national highways is the exclusive duty of the Government, and for a tort committed by a Government servant in the discharge of his duty in connection with the work of national highway, the Government cannot be made liable on the rule of vicarious liability. It was, however, held that the remedy in tort was available against the driver, but that would have proved a poor recompense for the probable loss that he sustained. Had the employer been other than the Government, the plaintiff would have recovered an adequate compensation, but not against the Government.
Adverting to this unsatisfactory state of law, Kumarayya, J., made the following pertinent observations:-
'It is a known fact that the Union of India and also the Government of State have set before them the ideal of a welfare State. It may be while achieving this purpose the Governments may undertake to do many acts which in the hands of private agency may assume the character of commerce or trade; but on that account alone the nature of the undertaking for governmental purpose. The idea here is not profit-making and the purpose is public purpose ................................................ It is not merely the nature of the work but its relation to the duties of the Government having regard to the goal of the Government that has to be kept in view. There cane be no doubt about the fact that the making and maintenance of national highways is the exclusive duty of the Government. On the principle already stated the Government is not in law within the rule of vicarious liability in relation to the tortious acts of its servants in the discharge of such duties. The plaintiff can have his relief only as against the person whose acts of commission or omission have given rise to the cause of action. It is unfortunate that a boy of tender age, barely five, has been disabled for ever by the rash and negligent act of the driver. It would naturally rouse up feeling of deep commiseration for him because rendered thus disabled for ever by the rash and negligent act of the driver. It would naturally rouse up feeling of deep commiseration for him because rendered thus disabled he has to enter the battle of life with no resources for due equipment, and no provision to fall back upon in times of need ........ Had the employer been other than the Government, he would have for an adequate compensation. It is unfortunate that the Government being the employer he has to look in vain for some appropriate provision which may afford a just and adequate relief. Article 300 of the Constitution contemplates no doubt a provision to be made by the Parliament or State Legislature and this provision in all probability is intended to meet the ever-growing needs of the subjects in a social welfare State. But in the absence of any such enactment, the old state of law as available in the year 1858 has yet to prevail.'
We follow this decision and adopt the observations.
(35) In Janakiramaiah and Co. v. State of Andhra, 1964-1 WR 253, decided by another Bench of this Court, consisting of the Chief Justice and Narasimham, J., it was held that the officer in that case in seizing the food-grains in exercise of the powers conferred under the Madras Food-grains (Intensive Procurement) Order, 1948, had not acted maliciously, though the seizure was illegal, and, therefore, he was indemnified form liability under that Act. On the general question whether the tort committed by the Government servant the Government could be made liable, it was held that if the injury resulted from the exercise of the sovereign power under a statute by the official, the State cannot be made vicariously liable. It was also laid down that it was only in cases where the plaintiff complains of an injury caused by the Government officials in undertakings of a commercial nature or in matters which could be undertaken by a private individual without delegation of the sovereign power that the vicarious liability of the Government arises.
(36) This decision was followed by one of us (Venkatesam, J.) in Hindupur Co-operative Stores Ltd., v. State of Andhra, 1964-1 Andh WR 333. It is needless to mention that the decisions in : AIR1961AP283 and 1961-1 Andh WR 253, are cases decided after our Constitution came into force.
(37) Sri N. M. Sastry, the learned counsel for the appellants, contended that the immunity of the Government for torts committed by its servants in the exercise of sovereign powers must be confined only to cases of State. In other words, learned Advocate equates the phrase 'sovereign acts' with 'acts of State'. The decisions cited above do not give any room for such an argument. The cases relied on by him. viz., State of Bihar v. Sonabati Kumari, AIR 1954 Pat 513 and Union of India v. Ram Kamal, AIR 1953 Assam 116, have not laid down a different principle. This contention has, therefore, to be rejected.
(38) The other contention raised by him is that after the Constitution came into force, the Government is made liable for every wrongful act of its servant and relied on the decision of the Supreme Court in State of Rajasthan v. Mst. Vidhyawati, : AIR1962SC933 .
In that case, the defendant, a motor driver, who was employed temporarily to drive the jeep car of the Collector, was driving the car back after repairs were effected to it, and knocked down one Jagadishlal, causing serious fractures and other injuries, as a result of which he died. His widow and daughter and the State of Rajasthan for damages for the tort committed by the driver, and the suit was decreed, on the ground that the State is in no better position in so far as it supplies cars and jeeps drivers for its civil servants, and that when a jeep car supplied by the State to the Collector was being driven back from the repair shop to the Collector's place the accident took place, the driver was not doing anything in connection with the exercise of the sovereign powers of the State, and that the Government is, therefore, liable for the tort committed by the servants within the scope of its employment and function as such.
His Lordship, Sinha, C. J., observed thus:
'The State of Rajasthan has not shown that the Rajasthan Union, its predecessor, was not liable by any rule of positive enactment or by Common Law. It is clear from what has been said above that the Dominion of India, or any constituent Province of the Dominion, would have been liable in view of the provisions aforesaid of the Government of India Act, 1858. We have not been shown any provision of law, statutory or otherwise, which would exonerate the Rajasthan Union from vicarious liability for the acts of its servant, analogous to the Common Law of England. It was impossible, by reason of the maxim 'The king can do no wrong', to sue the Crown for the tortious act of its servant. But it was realised in the United Kingdom that that rule had become outmoded in the context of modern developments in State-craft, and Parliament intervened by enacting the Crown Proceedings Act, 1947, which came into force on 1st January, 1948. Hence the very citadel of the absolute rule of immunity of the sovereign has now been blown up ....................
As already pointed out, the law applicable to India in respect of torts committed by a servant of the Government was very much in advance of the Common Law, before the enactment of the Crown Proceedings act. 1947, which has revolutionised the law in the United Kingdom also. It has not been claimed before us that the Common Law of the United Kingdom before it was altered by the said Act with effect from 1948, applied to the Rajasthan Union in 1949, or even earlier. It must, therefore, be held that the State of Rajasthan has failed to discharge the burden of establishing the case raised in Issue No. 9, set out above.'
(39) The following observations of the learned Chief Justice may usefully be extracted:-
'When the rule of immunity in 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 it has any validity in this country, particularly after the Constitution. As the cause of action in this case arose after the coming into effect of the Constitution, in our opinion, it would be only recognising the old established rule, going back to more than 100 years at least, if we uphold the vicarious liability of the State. 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.'
This decision has laid down that the State of Rajasthan, which succeeded the Rajasthan Union, had not established that, according to the common of law of Rajasthan Union, absolute immunity of the Government for the torts committed by its servants did not exist. Under the Constitution, the position of the State of Rajasthan was held to be what it was during the days of the East India Company. In view of the finding that at the time the accident happened, the driver, a Government employee, was not discharging any sovereign functions, the Government was held liable. This decision has, therefore not laid down the principle for what the appellant is contending and is of no assistance to him.
(40) We, therefore, hold that in the instant case the Government, whether State or Central, cannot be made liable for the tort committed by the Tahsildar in effecting the illegal attachment.
(41) It is next argued on behalf of the Government that both the Collector and the Tahsildar cannot be made liable as they are sued in their official capacity, but not individual capacity, and that, in any event, the Collector cannot be made liable for the tort committed by his subordinate. In Raleigh v. Goschen, (1898) 1 Ch D. 73, it was held that the alleged authority of an executive department is no justification for a trespass, but only those who commit or in fact authorise the trespass are liable. It was also laid down that the Head of a Government Department is not liable for wrongful acts of officials that the act complained of was substantially the act of the head of the department himself. It was further laid down that though a Government servant can be sued individually for wrongs committed him, he could not be sued in his official capacity and such a suit is misconceived and would not lie.
(42)This decision was approved by the Court of Appeal in Bainbridge v. Postmaster General, (1906) 1 KB 178, where it was held that the Postmaster-General is not liable in his official capacity as head of the Telegraphic Department of the Post Office, for wrongful acts done by his subordinate in carrying on the business of the department.
(43) In Sheriff of Bombay v. Hakmaji Motaji and Co., AIR 1927 Bom 521, Marten. C. J., and Blackwell, J., held that
'Because one can bring a suit against a public officer in respect of acts done by him in his official capacity, it does not follow that one can sue that officer by his official name, just as he was a 'Corporation sole' '
It was also held that the Sheriff of Bombay who was appointed under the Supreme Court Charter of 1823, which remained in force by subsequent legislation was not a 'corporation sole' within the meaning of that expression, that an action against him does not lie in his official capacity, and that he should be sued personally, and not by name of his office. Though obiter, it was also observed in that case that the Sheriff of Bombay could not be sued in his official capacity for the acts of his bailiffs, inasmuch as the acts complained of were not substantially the acts of the Sheriff himself.
(44) To the same effect is the decision of the Calcutta High Court in P. B. Shah and Co. v. Chief Executive Officer, : AIR1962Cal283 . It down that where a statute provides that a public officer shall be a Corporation sole and can be sued in that name, and in the absence of such a provision, the ordinary law applicable to suits must apply.
It was further laid down that under O. 7, R. 1 (c), if the plaintiff intends to sue the persons who for the time being occupy those offices he must implead those persons of their individual names, and that in the eye of the law the so-called Chief Executive Officer and City Architect without the individual names of the persons occupying those posts given in the suit title are not really on the record, and that such a suit should be dismissed as against them.
(45) Relying on this case, Sri Sastry contended that S. 60 of the Madras Revenue Recovery Act contemplates a suit being filled against the Collector by any person being himself aggrieved by anything done or purporting to be done under this Act, and, therefore, the suit against him in his official capacity lies. The very case relied on by him shows that such a suit a suit will not lie against the officer unless he is a Corporation sole. But the Collector under the said Act is not a corporation sole. We cannot, therefore, accept the contention that the Collector could be sued in his official capacity.
(46) In view of the foregoing discussion, we hold that the suit against defendants 1 and 3 in their official capacity must be dismissed. The suit against the first defendant must be dismissed on the additional ground that, the Collector had not authorised the Tahsildar to effect the attachment in the illegal manner.
(47) A further contention was also raised on behalf of the Government, viz., that the arrears of income-tax, for the recovery of would the attachment in question, was made, are due to the Central Government, though the process of recovery as entrusted to the Collector, and as such it is the Central Government, but not the State Government, that should have been sued. For this proposition the decisions in Venkata Ramayya Appa Rao v. Collector of Madras : 21ITR454(Mad) and Abanindra Kumar v. A. K. Biswas, : AIR1954Cal355 were cited. There is much force in this contention. But in view of the conclusions already arrived at, we do not deem it necessary to decide this question. It is, therefore, futile to consider the cases cited on behalf of the appellant. viz., Dharangadhra Chemical Works Ltd. v. State of Saurashtra, (S) : (1957)ILLJ477SC and National Shipping Co., v. Haripada Saha, : AIR1958Cal597 , for the proposition that the Collector and the Tahsildar when they acted under the Madras Revenue Recovery Act are not really the servants of the Central Government, but only the servants of the State Government.
(48) In the view we have taken, it is not necessary to give a finding on the quantum of damages to which the plaintiff is entitled.
(49) No other point has been argued before us. In the result, the appeal fails and is dismissed.
(50) Inasmuch as the Government had not raised the contention in the written statement that it is not vicariously liable for the tort committed by the Tahsildar, nor taken an issue on the point, we think it just that the Government shall be allowed costs only in the trial Court, but not in the appeal.
(51) Appeal dismissed.