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Prem Lal Singhania Vs. U.P. Government - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 828 of 1951
Judge
Reported inAIR1962All233
ActsConstitution of India - Article 300; U.P. Requisition of Motor Vehicles Emergency Powers Act, 1947 - Sections 3, 4, 5, 7, 9, 10 and 11; Code of Civil Procedure (CPC) , 1908 - Sections 80 and 100 - Order 6, Rule 10
AppellantPrem Lal Singhania
RespondentU.P. Government
Appellant AdvocateAmbika Prasad, Adv.
Respondent AdvocateStanding Counsel
DispositionAppeal allowed
Excerpt:
(i) constitution - liability of state government - article 300 of constitution of india - government is liable for act amounting to tort committed by its servants. (ii) written statement - sections 100 and 80 , order 6 rule 10 of code of civil procedure, 1908 - failure to take objection - raised in second appeal - held, the party is debarred to raise the issue. (iii) requisition of vehicle - sections 3, 4, 7 and 10 of motor vehicles emergency powers act, 1947 - order of requisition passed under section 3 - immunity allowed when act causing damage to the vehicle requisitioned was done in good faith - court has all the power to examine the requisition order - held, intention is malafide and hence the government cannot escape from its liability. (iv) requisition of vehicle - scope -.....s.s. dhavan, j.1. these are two connected second appeals by a plaintiff from the decision of the learned civil judge, gorakhpur, dismissing his two suits for recovery of damages or compensation from the government of the state of uttar pradesh. the facts which have led upto these appeals are these. the plaintiff, prem lal singhania, was the owner of a motor truck and a chevrolet motor car. on 12-1-1948 the district magistrate of gorakhpur, purporting to act under the powers delegated to him by the state government under section 9 of the u. p. requisition of motor vehicles act of 1947, passed an order requisitioning both these vehicles. the order required the plaintiff singhania to place them at the disposal of the superintendent of police within 24 hours of the service of this.....
Judgment:

S.S. Dhavan, J.

1. These are two connected second appeals by a plaintiff from the decision of the learned Civil Judge, Gorakhpur, dismissing his two suits for recovery of damages or compensation from the Government of the State of Uttar Pradesh. The facts which have led upto these appeals are these. The plaintiff, Prem Lal Singhania, was the owner of a motor truck and a Chevrolet motor car. On 12-1-1948 the District Magistrate of Gorakhpur, purporting to act under the powers delegated to him by the State Government under Section 9 of the U. P. Requisition of Motor Vehicles Act of 1947, passed an order requisitioning both these vehicles. The order required the plaintiff Singhania to place them at the disposal of the Superintendent of Police within 24 hours of the service of this order.

According to the plaintiff, the order was illegal and unjustified as the essential conditions for the exercise of the requisitioning power did not exist and it was passed with the object of causing wrongful loss to the plaintiff. The plaintiff alleged that the Chevrolet car was kept uncovered and in the open during the period of requisition with the result that its paint was damaged and some parts became rusty. He had to spend Rs. 760/-/- on getting the car re-painted and repaired. Both the vehicles were released on 18-12-1948, having remained in the custody of the Government for over three months. The plaintiff served on the Government a notice under Section 80, C. P. C. claiming damages and compensation but it had no effect. He thereupon filed two separate suits in respect of the truck and the car. He claimed compensation for the motor car at the rate of Rs. 10/- and for the truck at the rate of Rs. 40/-per day. He also claimed Rs. 760/- as compensation for damage done to the car. The claim in respect of the truck totalled Rs. 3,300/- and of the car Rs. 1410/-. He also claimed interest.

2. The State contested the suit and denied liability. It admitted that the truck and the car were requisitioned but denied that the requisitioning order was illegal. It also alleged that the plaintiff had suffered no damages and had no cause of action. Government also contended that the Civil court had no jurisdiction to entertain the suit and that the compensation, for the requisitioned vehicles could be determined only by the, Government and not by the court.

3. The learned Munsif, Gorakhpur rejected the plaintiff's case that the order of requisition was illegal or that the Government or any of its officers acted maliciously or mala fide against him. The claim for compensation for damages to the Chevrolet car was dismissed. It however, held that the suit was not barred as Government had failed to discharge its duty of determining the compensation and paying it to the owner of the vehicle. He held that the plaintiff was, in these circumstances, entitled to receive compensation from the Government for having been deprived of the use of car and truck at the rate of Rs. 10/- and Rs. 40/- per day respectively. In the result he decreed the suit in respect of the truck for Rs. 2640/- and of the car for Rs. 680/- with proportionate costs.

4. On appeal by the State, the learned Civil Judge, Gorakhpur reversed the finding o the trial Court on the question of jurisdiction of the Civil Court and held that it was barred under the Requisition of Motor Vehicles Act. He also held that, in a case of requisition under the Act, the owner can get compensation only when it is determined by the State Government and that if it 'refuses to determine the compensation or omits to do so the owner of the vehicle would not be entitled to get any compensation'. In the result, he allowed both the appeals and dismissed the suit with costs. Aggrieved by these decisions the plaintiff has come to the Court in second appeals.

5. Mr. Ambika Prasad, learned counsel for the appellant urged the following arguments in support of this appeal. First, the finding of the appellate Court that the jurisdiction of the Civil Court is barred is erroneous. Secondly, his view that the owner of a vehicle requisitioned under the Ac is not entitled to any compensation if the Government refuses to determine the compensation or omits to do so is manifestly wrong. Thirdly, the learned Judge should have considered whether the action of the District Magistrate in requisitioning the appellant's truck and car was mala fide. Fourthly, the liability of the Government to pay compensation arises under the ordinary law and the Act merely provides a convenient machinery for the assessment of the amount due to the person whose vehicle is requisitioned and the Government cannot defeat his claim for compensation by a deliberate refusal to assess the compensation. Lastly, in view of the Government's refusal to assess compensation and its declared plea that the appellant is not entitled to any compensation, it would be futile for this Court to issue a mandatory injunction directing the Government to assess the compensation under Section 4 of the Act, and the Court can determine the compensation itself.

6. On the other hand, the Junior Standing Counsel advanced the following arguments against the appeal. First, a suit to recover any amount as compensation is barred under Section 4 and the Government has the exclusive jurisdiction to determine the amount of compensation. Secondly, the action of the District Magistrate in requisitioning the vehicles was done in good faith and not wrongful. Thirdly, in requisitioning the vehicles under Section 3 of the Act, the District Magistrate performed a governmental function imposed upon him by law and therefore, the State is not liable for any damage suffered by the plaintiff from any wrong committed by the officer in the performance of his statutory duty. Fourthly, the plaintiff cannot be allowed to prove malice on the part of the District Magistrate as he did not specifically plead malice or lack of good faith. Fifthly, the notice under Section 80, C. P. C. which was served by the appellant on the Government did not disclose any cause of action for damages for wrongful or malicious requisitioning of his vehicles and he cannot be allowed to prove malice on the part of the defendant. Sixthly the plaintiff's remedy, it any, is by way of an application to the Government to assess compensation and not by a Civil suit; alternatively, his remedy is to ask for a mandatory injunction directing the Government to determine the compensation. Lastly, this Court has no jurisdiction to entertain the suit, as the vehicles were requisitioned in the exercise of the sovereign powers of the State.

7. The arguments of counsel, particularly of the Junior Standing Counsel, extended over a wide field, and lasted for several days during which a large number of authorities were cited. I allowed counsel considerable latitude in view of the importance of the questions raised.

8. I shall first consider the question of jurisdiction. The State counsel contended that the requisitioning of the vehicles was an act of State done in the exercise of the sovereign powers of the State and the Court cannot examine its validity. Learned counsel relied on Section 176 of the Government of India Act 1935, which provided in effect that the Dominion of India and the Provincial Government may sue or be sued in the like cases as the Secretary of State in Council might have sued or have been sued if that Act had not been passed. (I have ignored the parts of the section which are not relevant to the present controversy). The corresponding provisions in all the previous constitutional Acts were examined by the Court because learned counsel argued that the liability of the U. P. Government in 1948 was exactly the same as that of the East India Company prior to 1858 and that there had been no change in the law governing the liability of the Government in tort.

A large number of cases were cited before me, beginning with the Peninsular and Oriental Steam Navigation Co. v. Secretary of State. 5 Bom HC App 1. Counsel contended, on the authority of these cases, that the requisitioning of the vehicles was an act of State done by the sovereign power and, therefore not open to review by the Civil Courts. I do not agree. The question what is an act of State has been examined by the Supreme Court and several High Courts and it is now be-yond dispute that Government cannot claim sovereign immunity against liability for its own torfious acts or those of its servants and agents Province of Bombay v. Khushaldas S. Advani : [1950]1SCR621 , (observations of Mukherjea J.); Virendra Singh v. State of Uttar Pradesh : [1955]1SCR415 (Bose, J.); Union of India v. Ram Kamal Bezbarua, AIR 1953 Assam 116; Rup Ram v. Punjab State ; Mst Vidyawati v. Lokumal, (S) AIR 1957 Raj 305 and an unre-ported decision of this Court in Dominion of India v. Anirudh Dotiyal decided by Srivastava, J. in FA 284 of 1951, D/- 20-8-1959 (All).

In view of these decisions it is too late in the day for the State to claim that the requisitioning of a motor vehicle under the U. P. Requisition of Motor Vehicles Act is an act of State for which it can claim sovereign immunity. I need only quote the following observation, with which I respectfully agree, from the Rajasthan High Court's judgment in (S) AIR 1957 Raj 305:

'It may be added that the State is no longer a mere police state and this country has made vast progress since the above decision was made. Ours is now a welfare State and it is in 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 persons can engage himself or themselves. Under the circumstances there is all the more reason that it should not be treated differently from other ordinary employers when it is engaging itself in activities in which any private person can engage himself.'

Thus judicial authority and public policy demand that the State today cannot claim immunity from the tortious liability in respect or the tortious acts of its servants and agents.

9. I shall now consider whether the case of the appellant that the requisitioning of his vehicles was mala fide and an abuse of the powers conferred on the District Magistrate under the Act. At the outset, the State Counsel raised a preliminary objection that if the District Magistrate acted mala fide, the Government would not be responsible or liable for his act as he requisitioned the vehicles in the exercise of functions imposed by law and the State is not liable for any wrong done or powers abused by him while exercising those functions. Learned counsel relied on the decision of this Court in Mohammad Murad Ibrahim Khan v. Govt. of U. p. : AIR1956All75 .

In that case a distinction was drawn between the acts of a servant or agent which he performs under his master's direction and guidance and for his benefit and acts in the performance of duties imposed upon him by law when the master has no control over him nor any right to give him instruction. It was held that in the first case the master is ordinarily liable but in the latter he is not. The facts of the case were these. The Nazir of the court of a District Judge was entrusted with the custody of jewellery belonging to a minor, and he had to perform his duty in accordance with the General Rules (Civil) framed under Section 107, Government of India Act, 1915 and Section 122 of the C. P. C. The Nazir committed a default in the due performance of this statutory duty and was guilty o negligence with the result that the jewellery was stolen. The minor after attaining majority brought an action against the U. P. Government for the return of the jewellery or in the alternative for the recovery of its Value. It was held that both the District Judge and the Nazir were functioning under certain provisions of the law. The Nazir was not acting for the benefit of the Government while exercising his statutory function nor could the Government control his act and, therefore, the Government was not liable.

10. Learned counsel also relied on two otherdecisions of this Court. In Ram Shanar v. Secretary of State : AIR1932All575 , an Official Receiver appointed by Government to perform certain duties failed to account for some moneys entrusted to him. The Secretary of State for India was sued for damages, but he was held not accountable for the acts of the Official Receiver because these were done by the latter in performance of the duties imposed on him by law. In Ram Ghulam v. Government of U. P. : AIR1950All206 stolen property was recovered by the police and deposited in the Malkhana from where it was stolen. The owner of the property brought an. action against the Government but it was held that the Government was not liable for the tortious act of a servant done while he was performing a duty imposed on him by law.

11. I have examined these cases but in my opinion the principle laid down in these cases will not save the Government from immunity in the present case if it is otherwise liable. The District Magistrate was not performing any duty imposed or exercising any power conferred by law, but exercising a power expressly delegated to him by Government under Section 9 of the U. P. Requisition of Motor Vehicles (Emergency Powers) Act 1947. That section provides:

''Delegation of powers. The State Government may by Order direct that any powers or duty which is conferred or imposed on the State Government shall in such circumstances and under such conditions if any, as may be specified in that direction, be exercised or discharged by any officer or authority subordinate to it.'

12. Thus the power to requisition motor vehicles is conferred under the Act on the State Government but it is permitted to delegate its powers to any officer or authority subordinate to it. Neither the statute nor any rule made thereunder confers any powers on the District Magistrate who can exercise them only if he is authorised by the State Government. His power is not to be exercised independently of the Government but 'under such conditions, if any, as may be specified' in the authorisation. He is, therefore, all the time under the control of the Government whose power to impose conditions for its exercise is absolute. The District Magistrate is not persona designata under the Act or any rule for the Government can authorise any other Officer or authority subordinate to it to exercise the power of requisitioning vehicles on its behalf. Whoever requisitions any motor vehicle acts for the benefit of the Government which can control his functions. If however Government does not choose to impose any conditions and gives unlimited powers to any officer, it cannot escape liability for any tortious acts committed by him. For these reasons I am of the opinion that an officer who requisitions a motor vehicle under Section 3, U. P. Requisition of Motor Vehicles Act under the authority of an order passed by the State Government delegating its powers to him acts on behalf of and for the benefit of Government and does not, for the purpose of tortious liability, exercise any functions imposed upon him by law but acts as an agent of the Government which will be liable for his wrongful acts.

13. Counsel for the State argued that the appellant should not be permitted to prove that the District Magistrate abused his powers and acted maliciously, because the plaintiff did not in his notice to the Government under Section 80, C. P. C. make this allegation, nor did he expressly plead malice in his plaint. Counsel relied on Order 6, Rule 10, C. P. C. which provides that ''wherever it is material to allege malice, fraudulent intention and knowledge or the other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred. Counsel also read out the notice sent by the appellant's counsel, to the Government under Section 80, C. P. C. and pointed out that the word 'malice' had nowhere been used in it. Both these objections can be disposed of together, as there is a short answer to both.

A notice under Section 80 C. P. C. is for the benefit of the Government and its purpose is to enable the Government to examine its position and decide whether it will concede the claim or fight out the case. It can, however waive the notice. If the plaintiff's notice was defective, the State could have raised an objection in its written statement but did not do so. On the contrary in para 6 of the statement it is admitted ''that the plaintiff served the Government) with a notice under Section 80 C. P. C.' No objection was raised before the trial court that the notice was vague or incomplete and the question of malice was fought out and decided by the Court on merits. It is not open to the Government to raise this objection at the stage of second appeal. Nor did the Government make any objection against the plaint in its written statement. It denied the allegations in para 2 that the District Magistrate took the truck in his possession wrongly and illegally in order to cause wrongful loss to the plaintiff and contended in the additional please that the vehicle was requisitioned according to law and the order made by the District Magistrate could not be called In question in any court. The State did not object that the plaint was vague nor did it ask for particulars. No objection was taken to the plaintiff leading evidence on malice during the trial. The State cannot be permitted at this stage to turn round and plead that this part 'of the plaintiff's case should be discarded altogether'.

14. Moreover, on merits the objection has hardly any substance. I have read the notice under Section 80 C. P. C. and the plaint carefully and think that the plaintiff's case, is stated with sufficient clarity in both. In the notice it was alleged that there was no need to requisition the truck and it was taken into possession by the District Magistrate wrongly and illegally. In para 2 of the plaint it was alleged that the District Magistrate took the truck in his possession, wrongly and illegally 'in order to cause wrongful loss to the plaintiff.. Thus the Government knew that the plaintiff had accused the District Magistrate of having abused his powers and had requisitioned the truck not for any bona fide purpose but merely to cause wrongful loss to the plaintiff. I am of the opinion that there is no substance in this belated objection.

15. I shall now consider this part of the plaintiff's case on merits. The trial court rejected it and held that there was no ground for supposing that either the Government or any of its officers acted maliciously or mala fide against the plaintiff. It was of the opinion that the mere fact that the vehicles were kept in the open and consequently damaged, did not prove malice against the Government or its officers. In appeal the learned Civil Judge dismissed the plain-tiff's suit on the preliminary ground that the jurisdiction of the civil courts was barred. He observed:

''In the present case the vehicles of the plaintiff were requisitioned under a special enactment and in this very enactment there was provision about the payment of compensation. I think, the plaintiff is not entitled to maintain the suit for compensation. Moreover, the compensation claimed by the plaintiff in this case is by way of damages. It is not the actual loss which the plaintiff has suffered, but the claim is for recovery of money by way of compensation, because the plaintiff has been deprived of the use of vehicles for the period these vehicles remained requisitioned. This clearly shows that the plaintiff was claiming this amount as damages and because no mala fides of the U. P. Government have been shown, the claim for damages was barred under Section 10(2) of this very Act.

16-22. The statement of the learned Judgethat 'no mala fides of the U. P. Government havebeen shown' was obviously made without considering the evidence led by the plaintiff who had alleged malice againstthe district Magistrate). The learnedJudge did not even apply his mind to the evidence of the plaintiff's witness who testifiedabout the motives of the District Magistrate. Theplaintiff's case having not been considered bythe appellate Court at all its casual observationcannot be regarded as a finding. Thus there isno finding of the appellate Court on the question whether the order of the District Magistratewas valid. Ordinarily I would have remandedthe case with a direction to the Court to decidethe issue whether the District Magistrate actedmala fide, but as this is a very old caseand the entire evidence consists of two witnessesI preferred to decide this issue myself and allowed the parties to argue their respective cases before me. (His Lordship considered the evidenceand concluded): I must, therefore, hold that theplaintiff's case that his vehicles were requisitioned not because the Government had any needfor them but to teach him a lesson because hewas suspected of being a Sangh sympathiser isfully established.

23. Counsel for the State argued that even assuming that the vehicles were requisitioned for political reasons, no case for mala fides or abuse of powers had been made out. He pointed out that one of the reasons for requisitioning any motor vehicle is 'for maintaining public order' and the District Magistrate in this case bona tide thought that it was in the interest of the public order to deprive a person, suspected of being a Sangh sympathiser, of the use of his vehicles. I do not agree with this view of the scope and purpose of the Requisition of Motor Vehicles Act. The preamble of the Act explains that it was passed 'to provide for the requisition of motor vehicles.' Section 3 which confers the requisitioning powers runs thus:

''3. Requisitioning of motor vehicles.--(1) If in the opinion of the State Government it is necessary or expedient to do so for purposes essential to the life of the community or for maintaining public order or for facility of public transport, it may pass an order in writing requisitioning any motor vehicle and may make such orders as may appear to it to be necessary or expedient in connection with such requisition; a copy of the order shall be served on the owner of the motor vehicle, or where the owner is not readily traceable or the ownership is in dispute, by publication thereof in the official Gazette.

(2) If the owner of the motor vehicle does not, after service of the order in the manner provided in Sub-section (I) place the motor vehicle in possession of the authority mentioned therein, such authority may seize the motor vehicle from any person, who may for the time being be in possession thereof.

(3) Where the State Government has requisitioned any motor vehicle it may use or deal with it in such manner as may appear to it to be expedient.'

24. Section 4 provides for payment of compensation to the person whose vehicle has been requisitioned.

25. Section 7 enjoins that no owner of any motor vehicle or any person in possession thereof shall, after service of the order under Section 3 remove any part, tyre, tube or any other accessory or in any way injure the motor vehicle so as to reduce the usefulness of such Vehicle. Thus the entire purpose of the Act is to enable the Government in an emergency to make use of motor vehicles belonging to private persons. The phrase 'maintaining of public order' does not mean that the Government can take away a person's motor vehicle to prevent him from using it for political, undesirable or criminal purposes. This can be done by an order under Section 144 of the Cr. P. C. Moreover, there is no point in providing for compensation to a person whose vehicle has been taken away to ensure that he would not use it for a criminal purpose.

Section 7 which requires a person whose vehicle has been requisitioned not to do anything 'to reduce the usefulness of such a vehicle'' is conclusive. This obviously means that the purpose of requisitioning is to enable the Government in times of emergency to use private vehicles and not to deprive political suspects of means of locomotion. I am, therefore, of the opinion, that an order requisitioning a motor vehicle with the motive of depriving its owner of its use because he is susPECTED of belonging to a political organisation considered by the Government to be undesirable is mala fide and an abuse of the powers under Section 3. In this case the plaintiff has proved that his two vehicles were requisitioned by the District Magistrate of Gorakhpur not for any bona fide use of the Government but to teach him a lesson as he was suspected of being a member or helper of the Sangh. His case is proved by the admitted fact that the vehicles were never used but kept in a neglected condition in the open. There is not a particle of evidence in rebuttal. I must, therefore, hold that the impugned order was passed mala fide by the District Magistrate-and in abuse of the powers delegated to him by the State Government.

26. Learned Junior Standing Counsel contended that the Civil Court has no jurisdiction to entertain a suit challenging the legality of any requisition order made by the District Magistrate under' Section 3 of the Act and he relied on Sections 10 and 11 in support of this argument Section 10 runs thus:

10 Protection--(1) No suit prosecution or other legal proceeding shall lie against any person for anything in good faith done or intended to be done in pursuance of this Act, or any rules made thereunder or any order issued under any such rule.

(2) No suit or other legal proceeding shall lie against the State Government for any damage caused or likely to be caused by anything in good faith done or intended to be done in pursuance of this Act or any rules made thereupon or any order issued under such rules.,'

27. Section 11 provides-

'Saving.-- (1) No order made in exercise of any power conferred by or under this Act shall be called in question in any court.

(2) This sub-section is not material to the present controversy.

28. The State counsel argued' that a suit for damages against the State Government is barred by Section 10. I agree that ordinarily no suit shall lie for recovery of damages caused by any order of requisition passed under Section 3. But the essential condition of this immunity is that the act which caused the damage must have been done in good faith. The section gives no protection for any act which is mala fide or an abuse of the powers conferred by the Act. In the pre-sent case I have held that the requisitioning order of the District Magistrate was not passed in good faith. Therefore, the State cannot avail of the protection of Section 10.

29. Nor does Section 11 give any protection. It says that no order passed in the exercise of any power conferred under the Act shall be challenged in any court. But it is well settled that in such cases the Civil Court can examine whether the impugned order was made in the bona fide exercise of the powers conferred by the act or amounts to an abuse of such powers. In the latter case the Court will hold that the authority exceeded its powers under the statute and its act will not be deemed to have been done under that statute. In the present case the requisitioning order has been held to be mala fide and an abuse of the powers under Section 3. The Court is, therefore, not prevented from condemning the order as invalid.

30. The State counsel then contended that this Court can award no compensation as this power has been exclusively reserved under the Act for the State Government. He relied on Section 4 which provides that whenever in pursuance of Section 3 the State Government requisitions any motor vehicle the owner thereof shall be paid such compensation as the State Government may determine. Relying on this section counsel argued that even if the order is invalid the Court cannot award any compensation and the plaintiff should have applied to the State Government for compensation. There is a short answer to this argument. Section 4 operates only where a valid order of requisition has been passed. It does not apply to an order which is invalid and the requisition amounts to a tortious act. In such a case the Court can award damages by way of compensation. Secondly, the jurisdiction of the Civil Court is barred only if the Government makes an order awarding compensation, but not where it refuses to perform its duty under this Section. In this case the plaintiff served notice on the Government requiring it to pay compensation in accordance with Section 4 but the Government ignored it and is not prepared to determine the compensation as will appear from the statement of counsel referred to below. I agree with the trial court that when the Government refuses or deliberately omits to award the compensation, the jurisdiction of the Civil Court to do so is not barred.

31. Even if I had taken the view that the requisitioning order is valid I would be inclined to hold that in the peculiar circumstances of this caste the Court has the power to award compensation. Section 4 provides that the owner of a requisitioned vehicle shall be paid such compensation as the State Government may determine, The appellate Court has taken the view that the owner is to get compensation only when it is determined by the State Government and this necessarily leads to the conclusion that if the State Government refuses to determine the compensation or omits to do so the owner of the vehicle would not be entitled to get any compensation.' The learned Judge did not realise the implications of his conclusion. It means that the owner's right to compensation depends upon the will of the Government and that the Government can defeat this right by the simple device of omitting or refusing to determine the compensation. An interpretation leading to such absurd results cannot be taken seriously.

The right to compensation of an owner whose motor vehicle is requisitioned under the Act does not depend upon the will of the Government but on the general law which entitles any person whose property is taken away to demand compensation. Section 4 does not create the right but merely provides a convenient procedure for the assessment of the compensation. If the Government passes an order determining the compensation it cannot be questioned directly or indirectly in the Civil Court. If the owner is dissatisfied with the amount awarded by the Government and files a suit for the recovery of a large amount the Civil Court's jurisdiction is barred, for it cannot assess the compensation without calling in question the order of the Government--that is, without doing something which is forbidden by Section 11. But the vital point to note is that the Court's jurisdiction can be ousted by the Government only by passing an order assessing compensation but not by refusing to pass it. Deliberate, inaction by the Government cannot oust the jurisdiction of the Civil Court to award compensation which is due to the owner of the requisitioned vehicle under the general law of the land.

32. The Junior Standing Counsel contended that the Court should not assess compensation but issue a mandatory injunction requiring the Government to do its statutory duly and determine the compensation due to the appellant. I agree that ordinarily such an injunction should be issued, but in this case an order of injunction would be futile for two reasons. Counsel conceded that the power to determine the compensiation is quasi-judicial. The Government has declared its attitude that the appellant is not entitled to any compensation at all and has thus ousted its own jurisdiction by its bias. Any order of the Court directing the Government to determine the compensation will be futile, as it is likely to be frustrated by the bias of the Government which will simply pass an order that the appellant is not entitled to any compensation The Court does not issue an injunction where it cannot supervise its due execution by the party and in this case the Court cannot ensure that Government will act judicially.

Government was not prepared even at this stage to give an assurance that it is willing to determine the compensation due to the appellant. During the arguments the Court put an express question to the State Government whether Government was prepared to state that it would assess the compensation if the Court dismissed the plaintiff's suit, and counsel replied that he was not prepared to make any such statement. His reply was recorded in the Court's note book. For these reasons I hold that where Government refuses or deliberately omits to exercise its power of determining the compensation due to the owner of a requisitioned vehicle, the Court has the power under the ordinary law to determine and award compensation to him

33. For these reasons I allow this appeal and set aside the decree of the lower appellate Court. The trial Court held that the motor car had been damaged because it was kept in the open by the Government official but it disallowed the claim for damages as it took the view that the order of requisition was not invalid. However, it held the appellant entitled to compensation an he had been deprived of the use of the commercial vehicle and the car and passed a decree for Rs. 2649/- in respect of the former and Rs. 660/- of the latter aS I have held that the requisitioning order was in a valid it follows thatthe appellant was entitled to compensation for all the loss suffered by him. However, he did not appeal against the decision disallowing damages. Moreover, I feel that the trial Court's assessment of the loss suffered by him is fair and I am not inclined to disturb it. But I think the appellant is entitled to interest as he has been deprived of the use of the compensation money for over twelve years as a result of the unfair attitude of Government. I decree the plaintiff's suit No. 479 of 1949 for Rs. 2649/- with interest pendente lite and future, and also decree his suit No. 480 of 1949 for Rs. 660/- with interest pendente lite and future. The rate of interest shall be 6 per cent per annum simple.

34. As regards costs, this is a case in which the District Magistrate, in his misguided zeal, abused the powers delegated to him by the Government and took away two vehicles of the appellant not because the Government needed them but because he wanted to teach the appellant a lesson as he was suspected of being a sympathiser of the Sangh. He thus violated a fundamental principle of freedom of thought which includes, in the words of Justice Holmes, 'freedom for the thought that we hate'. It is difficult to thinkof a grosser abuse of powers than in this case, and the only charitable explanation of the District Magistrate's action can be that the incident happened in 1948 when the habits of arbitrariness acquired during the World War still lingered among some officials of the Government. I think this is a fit case where the respondent State must pay all the costs of the plaintiff-appellant in allcourts, and I direct accordingly.

35. Before leaving this cage I would like to mention that on 20th May, 1960 I passed an order allowing both, the appeals for reasons to beannounced later. Unfortunately, due to reasons which need not be explained, the cage was notbrought to my notice for a long time and remained undisposed of till now.


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