Gopalrao Ekbote, J.
1. I think these appeals will have to be allowed on a short point of law. What has happened in these cases was that the consignee instituted two suits against the Government for damages alleging inter aha that he had consigned some bags of rice from a certain station to Hindupur station. The Tahsildar without having any authority seized these rice bags. A criminal complaint was thereafter filed. The matter however ultimately came before the High Court and the High Court held the seizure illegal. As the seizure was illegal and the plaintiff suffered loss on account of this illegal seizure and as there was some shortage also, the consignee claimed damages from tho Government.
2. The defence of the State Government was that the Tahsildar acted bona fide, that he was not negligent and that the present suit is barred under Section 16 of the Essential Supplies Act.
3. The trial court, after recording the evidence of the parties, decreed the plaintiff's suits finding that there was shortage of 21 bags in one case and 22 bags in another case. The trial court also allowed interest upon the damages allowed to the plaintiff
4. The matter then was curried in appeal by the defendants, The plaintiff filed cross-objections Disposing of both the appeals and cross-object ions the lower appellate court decreed the plaintiff's suits after finding that there was shortage of 21 bags in one case and 25 bags in another. The lower appellate court also granted the cost of the rice bags at the market rate prevailing on the date of the suit. The court how ever did not allow the interest.
5. In this Second Appeal preferred by the State Government, the principal contention raised is that when it is found that the seizure was illegal and that there was no authority for the Tahsildar to seize the goods, it is he who is responsible for his tortuous acts, the Government cannot be held responsible for the tortuous acts of its employee. Another argument also was advanced that the Government is protected under Section 16 of the Essential Supplies Act.
6. Taking the second argument, first, I do not think that this is a case in which protection can be claimed by the Government under section 16 of the Essential Supplies Act. What that section says is that if an employee of the Government takes action in pursuance of an order passed under the Act and in good faith, then the State Government is not responsible. In this case there was no G. O. under which the Tahsildar could have seized the goods. Admittedly, the G. O. which was previously in force was cancelled. On the date of the seizure, admittedly, there was no direction to or authority for the Tahsildar under which he could have acted and seized the goods. It cannot therefore be said that the action of the Tahsildar was in pursuance of an order which can be protected under section 16 of the Essential Supplies Act. It is necessary in order to invoke the protection, provided by Section 16 of the Act, to show that the Tahsildar acted in good faith and in pursuance of an order passed under the Act.
When facts reveal that the Tahsildar acted not in pursuance of any order under the Act it must follow that Section 16 is inapplicable to the facts of the case. When the Tahsildar thus seized the goods without having any authority of law, it is his action for which he alone is responsible. There is no act on the part of the Government which holds the Government responsible. It seems now to be concluded that for the tortuous acts of the Government employee, the State Government is not liable. It is true that this ground was not raised in the courts below. It is however not correct to say that the ground has not been raised in this court. That being a pure question of law, there can be no objection to raise such a ground in this Court. As I am of opinion that the Government cannot be held liable for the tortuous acts of their employee, the conclusion is inescapable that the suit filed by the consignee for damages against the Government ought to be dismissed.
7. It was also argued by the learned Advocate for the respondent that the Government took a stand in the lower Court that the seizure was made in pursuance of the instructions given by the Government. It is true that the argument advanced by the Government Pleader in the lower Court seems to have taken some such stand. But there can be little doubt that this stand, if taken, is absolutely incorrect and not in consonance with the facts as stated in the pleadings. It has not been the contention of the Government in the written statement that they had either authorised the Collector or the Tahsildar to seize the goods or had ratified subsequently this unlawful act of seizure. In the absence of any such pleading on behalf of the Government, it could not have been permissible for the Government pleader to have taken any stand on the ground of either permission or subsequent ratification by the Government. I do not therefore think that merely because some arguments were advanced in the lower court that can form the basis for contending that the Government has admitted the authorisation of the seizure or subsequently ratified it. There is no record to substantiate this contention. I therefore experience no difficulty in rejecting that contention.
8. The second appeals therefore are allowed. The Judgment and Decree of the courts below are set aside and the suits filed by the plaintiff are dismissed.
9. In view of the circumstances of the case, however the appellant will get costs of this court only. The Government will pay the costs of respondent 2 of this court only. In view of the above, the cross-objections also are dismissed. There will be no order as to costs in the cross-objections.
10. C. M. P. Nos. 10861 and 10862 of1961: The amendment sought in these petitions isalso rejected. There will be no order as to costs.