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State of Rajasthan Vs. Rikhabchand Dhariwal - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Ref. Case No. 24 of 1950 in First Appeal No. 10 of 1953
Judge
Reported inAIR1961Raj64
ActsConstitution of India - Article 300; Rajasthan Administration Ordinance, 1948 - Sections 3, 17 and 44; Government of India Act, 1935 - Sections 176; Government of India Act, 1919 - Sections 32; Government of India Act, 1858 - Sections 65; Code of Civil Procedure (CPC) - Sections 79 and 80; Kotah General Clauses Act, 1945 - Sections 3(34); Rajasthan Public Safety Ordinance, 1948 - Sections 3(1) and 44; Limitation Act, 1908 - Schedule - Artilces 2 and 19
AppellantState of Rajasthan
RespondentRikhabchand Dhariwal
Appellant Advocate R.A. Gupta, Deputy Govt. Adv.
Respondent Advocate C.L. Agarwal, Adv.
DispositionAppeal allowed
Cases ReferredJaques v. Narendra Lal Das
Excerpt:
- - 2. whether the two detentions of the plaintiff in question were wrongful and not made in good faith or either of them was such? upadhyay held that both the detentions of the plaintiff were wrongful and the defendant, the state of rajasthan, failed to prove lawful justification for the same. both the parties at first argued the case on the very same assumption before this court as well, but in course of their arguments they realised that the said assumption was erroneous and therefore reverted to the correct position in law applicable to the case. ' the ruler of kotah enjoyed or exercised as belonging to him any of the functions and attributes of internal sovereignty duly recognised by the paramount power, (vide white paper on indian states page 17 para 38). the ruler of kotah,.....ranawat, j. 1. this is an appeal by the state of rajasthan from the judgment and decree of the civil judge, kotah, dated the 15th of december, 1952 for an amount of rs. 3,400/- against the state of rajasthan in a suit filed by mr. rikhabchand dhariwal for compensation for false imprisonment. the respondent, rikhabchand dhariwal filed cross-objections and claimed an amount of rs. 1,600/- which was disallowed by the lower court. 2. the appeal came up for hearing before a single judge of this court who has referred it to a division bench, as important questions of law were involved in it. 3. the plaintiff is shri rikhabchand dhariwal, who was a practising advocate at kotah. on the 17th of july 1948, under the orders of the then chief minister of former rajasthan, the plaintiff was arrested.....
Judgment:

Ranawat, J.

1. This is an appeal by the State of Rajasthan from the judgment and decree of the Civil Judge, Kotah, dated the 15th of December, 1952 for an amount of Rs. 3,400/- against the State of Rajasthan in a suit filed by Mr. Rikhabchand Dhariwal for compensation for false imprisonment. The respondent, Rikhabchand Dhariwal filed cross-objections and claimed an amount of Rs. 1,600/- which was disallowed by the lower court.

2. The appeal came up for hearing before a Single Judge of this Court who has referred it to a Division Bench, as important questions of law were involved in it.

3. The plaintiff is Shri Rikhabchand Dhariwal, who was a practising Advocate at Kotah. On the 17th of July 1948, under the orders of the then Chief Minister of former Rajasthan, the plaintiff was arrested and detained in the Bundi Central Jail under Section 3(1)(b) of the Rajasthan Public Safety Ordinance (No. IX of 1948), hereinafter referred to as the Ordinance -- A habeas corpus application was filed by his brother for his release and the Bench of the former Rajasthan High Court, sitting at Kotah, ordered the release of the plaintiff on the 14th of August 1948.

He was consequently released, but before he could get out of the outer gate of the Jail, he was again arrested under a warrant of detention issued by the Commissioner, Kotah Division under the same provision of the Ordinance. Again, a habeas corpus application was presented for his release and by the order dated the 26th of August 1948, he was again released by the same Bench of the High Court.

4. The plaintiff alleged that both of his detentions were illegal, wrongful and mala fide and claimed a sum of Rs. 100/- as damages for his first detention and Rs. 5,000/- for the second, making a total of Rs. 5,100/-.

5. The present State of Rajasthan, which is the successor of the former United State of Rajasthan, contested the suit. It was denied that the detentions were illegal, wrongful or mala fide. It was also pleaded that the suit was barred by limitation and no liability could be cast on the defendant for the Commissioner's order of detention. It was also contended that the suit was barred by Sec, 44 of the Ordinance, and that the damages claimed were excessive.

6. The learned Civil Judge framed the following issues:

1. Whether the claims for damages for both the detentions are respectively within limitation?

2. Whether the two detentions of the plaintiff in question were wrongful and not made in good faith or either of them was such?

3 Whether the suit is barred under Section 44 of the Rajasthan Public Safety Ordinance (No. IX of 1948)?

4. Whether defendant is not liable to pay damages for the Commissioner's order dated 14-8-48?

5. Whether both the detentions of the plaintiff amount to 'Acts of State' and the plaintiffs suit is not maintainable?

6. Whether the plaintiff's notice is invalid?

7. What would be the amount of damages that the plaintiff is entitled to recover for his professional loss, mental worry, physical inconvenience, loss of reputation, and costs of habeas corpus petitions?

8. To what relief is the plaintiff entitled?

7. Issues Nos. 1, 3, 5 and 6 were tried as preliminary issues by Mr. Bhagchand Soni, who held that the claim o the plaintiff for damages in respect of his second detention was not barred by Article 19 of Limitation Act, even though his claim for damages for the first detention was so barred aS regards issue No. 3, he held that the suit was not barred by Section 44, as the State Government could not be included in the term 'person' used in section 44 of the Ordinance.

In respect of issues Nos. 5 and 6, he held that the detention of the plaintiff was not an Act of State and that the notice under Section 80 of the Civil Procedure Code was valid. Mr. Upadhyay, who succeeded Mr. Soni as Civil Judge, Kotah, tried the remaining issues. Mr. Upadhyay held that both the detentions of the plaintiff were wrongful and the defendant, the State of Rajasthan, failed to prove lawful justification for the same. As regards issue No. 4, he held that the State was liable to pay damages even though the order of wrongful detention was made by the Commissioner.

As regards the amount of compensation, the learned Judge held that the amounts claimed by the plaintiff were not unreasonable except the sum of Rs. 1,600/- for loss of reputation. The reasoning that weighed with the learned Judge was that the detention of the plaintiff was not punitive and he cannot, therefore, be held to have suffered in reputation on account of his preventive detention under the Ordinance. He, therefore, allowed a claim of Rs. 3,400/- only.

8. In the appeal, the learned counsel for the State has urged the following points:

(1) That no suit for compensation in tort lay in a civil court against the United State of Rajasthan for the reason that no such suit lay against the State of Kotah or against the first United State of Rajasthan, The common law rule that the Sovereign cannot be sued in his own court without his consent, was relied upon in this connection.

(2) That the Commissioner, under whose orders the plaintiff was detained, was not impleaded as a party to the suit and the claim of the plaintiff against the State was, therefore, not maintainable.

(3) That the act of the Commissioner in ordering detention of the plaintiff was not ratified by the State and the State was, therefore, not liable.

(4) That the second United State of Rajasthan formed on the 8th of April 1949 was not liable to pay liabilities of the predecessor State, namely the first United State of Rajasthan, unless those liabilities could be shown to have been undertaken by it. Reference was made in this behalf to the decision of the Supreme Court in Dalmia Dadri Cement Co. Ltd. v. Commissioner of Income-tax, AIR 1958 SC 816.

9. The learned counsel of the State also raised objections against the findings of the lower court on all the issues except issue No. 8.

10. It may be noted here that the parties fought the case in the lower court on the assumption that the liability of the United State of Rajasthan was exectly the same as that of the Union of India or the States which formed part of British India before Independence. Both the parties at first argued the case on the very same assumption before this Court as well, but in course of their arguments they realised that the said assumption was erroneous and therefore reverted to the correct position in law applicable to the case. We may here refer to the political changes that brought about the formation of the State of Rajasthan after Independence.

11. The State of Kotah was an Indian State before Independence. An Indian State' has been defined by the Government of India Act, 1935 as 'including any territory........ belonging to or under the suzerainty of a Rule, who is under the suzerainty of His Majesty and not being part of British India.'

The Ruler of Kotah enjoyed or exercised as belonging to him any of the functions and attributes of internal sovereignty duly recognised by the Paramount Power, (vide White Paper on Indian States Page 17 para 38). The Ruler of Kotah, being in the position of a sovereign, could not be sued in his own courts without his consent.

12. The State of Kotah acceded to the Dominion of India under Section 6 of the Government of India Act, 1935. Thereafter the State of Kotah together with some other States formed a Union on 25th of March 1948, and when Udaipur State agreed to join the Union, the United State of Rajasthan was inaugurated on the 28th of April 1948 by Pt. Nehru and a Covenant was signed by the Rulers of all the States who joined that Union.

It was in the time of the first United State of Rajasthan that the petitioner was detained under Section 3 of the Ordinance, at first on the 17th July 1948 under an order of the Chief Minister of Rajasthan and a second time on the 14th ol August 194S under an order passed by the Commissioner of Kotah Division. Section 176 of the Government of India Act, 1935 which applied to the Dominion of India and its Provinces was not applicable to the Indian States which acceded to the Dominion of India under Section 6 of the Government of India Act, 1935 and the position of the United State of Rajasthan remained at par with such Indian States in that behalf till the 26th of January 1950, when the Constitution of India came into force.

Thus the position of the United State of Rajasthan to sue and be sued stood on a different footing from that of the Dominion of India or its Provinces. We may in this connection refer to a decision of this Court in Mt. Vidyawati v. Lokumal, 1957 Raj LW 404: ((S) AIR 1957 Raj 305) which was decided on the assumption that the position of the State ol Rajasthan was at par with that of the Union ol India or the States which formed part of British India before Independence.

That suit appears to have been contested by both the parties on the erroneous belief that the position of the State of Rajasthan was the same as that of any other State in India which formed part of British India before Independence. That suit was instituted after the coming into force of the Constitution and Article 300 of the Constitution was applicable, which lays down as follows:

'300. (1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs on the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.'

Under Article 300, the position of the States which formed part of British India before Independence and that of the Union of India remained the same as it was under Section 176 of the Government of India Act, 1935, Section 32 of the Government of India Act, 1919 and Section 65 of the Government of India Act, 1858.

In short, their position in this behalf remained the same as that of the East India Company before 1858. Suits could be filed against the East India Company in matters in which no suit lay under the Common Law of England against the Crown. The position in this connection of an Indian State, however, is different for the reason that Section 178 of the Government of India Act, 1935 and the corresponding sections of the earlier Government of India Acts did not apply to them.

The United State of Rajasthan could sue and be sued under Article 300 of the Constitution in the like cases as it might have sued or been sued if the Constitution had not come into force. Thus the position of the State of Rajasthan to sue and be sued cannot be determined on the basis of the position of the East India Company before the year 1858, and the authorities which were relied upon by this Court in Vidyawati's case, 1957 Raj LW 404: ((S) AIR 1957 Raj 305) cannot afford any guidance iu the matter.

In this view of the legal position, with due re-pect to the learned Judges who decided Vidyawati's case, 1957 Raj LW 404: ((S) AIR 1957 Raj 305) we may note that it was not dealt with properly in the light of the law applicable to it. However, the final conclusions arrived at in that case appear to be not incorrect. The case arose in the territories of the former State of Udaipur which formed part of the former United State of Rajasthan.

The provisions of Section 19 of Ordinance No. 1 of 1948 of the former United State of Rajasthan would be applicable to the facts and circumstances of that case. The liability of being sued of the State of Rajasthan for purposes of that case would be governed by Article 300 read with Section 3 of the Rajasthan Administration Ordinance (No. 1 of 1949) and Section 17 of the United State of Rajasthan Administration Ordinance, (No. 1 of 1948). The United State of Rajasthan, after it was formed, promulgated the United State of Rajasthan Administration Ordinance (No. 1 of 1948) on the 28th of April 1948, Section 17(1) of which is as follows:

'The Government of the United State of Rajasthan may sue or be sued by the name of the Government of the United State of Rajasthan through the Chief Secretary or in such other manner as may be directed by the said Government.'

The language of Section 17 of Ordinance No. 1 of 1948 is similar to the provision of Article 300 of the Constitution. It is an established principle of jurisprudence in all civilized nations that a Sovereign State cannot be sued in its own courts or in any other without its consent and permission; but it may, if it thinks fit, waive this privilege and permit itself to be made a defendant in a suit by individuals or by another State and as this permission is altogether voluntary on the part of a Sovereign it follows that it may prescribe the terms and conditions on which it may consent to be sued and the manner in which a suit may be conducted and may withdraw its consent whenever it may think that it is in the public interest to do so.

This consent may be found in the Constitution of the State itself or in the laws enacted by it or even in the executive orders issued by it. Section 17 of Ordinance No. 1 of 1948, in our opinion, contains a specific provision about the consent of the United State of Rajasthan for being sued in its own courts. In this provision, unlike article 300, no limitation whatsover has been provided as regards the nature of the suits which might be brought against the State.

The learned counsel for the State contended that the provision of Sec, 17 of Ordinance No. 1 of 1948 is merely procedural and it does not imply a consent on the part of the State to being sued in its own courts. We are unable to accept this contention. The language of Section 17(1) of the Ordinance is similar to that of Article 300 which admittedly contains a specific provision about consent of the State to being sued in its own courts.

Reference was made by the learned counsel to Sections 79 and 80 of the Civil Procedure Code in order to show that the provision of Section 17 of the Ordinance was in the nature of those sections and was consequently a procedural one. Sections 79 and 80 of the Civil Procedure Code run as follows:

'79. In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be:

(a) in the case of a suit by or against the Central Government, the Union of India, and

(b) in the case of a suit by or against a State Government, the State.'

'80. No suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of -

(a) in the case of a suit against the Central Government except where it relates to a railway, a Secretary to that Government;

(b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway;

(c) in the case of a suit against a State Government, a Secretary to that Government or the Collector of the District, and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been delivered or left.'

It would be noticed that the language of sections 79 and 80 refers to procedure and procedure alone.

The language of Sec, 17 of the Ordinance cannot be considered to be similar to that of Sections 79 and 80 of the Civil Procedure Code. Section 17 also makes a provision for the name in which the Government of the United State of Rajasthan was to be sued and the officer through whom it was to be so sued.

This part alone of Section 17 may be regarded as procedural. This, however, does not detract from the substantive provision of Section 17 regarding consent of the State to being sued. We may also refer to the liability of the Kotah State of being sued in its own courts. In 'Hidayat Gair Mansookh Shuda Seege Diwani' amended up to the year, 1914, published under orders of Mehkma Khas Kotah provides in Hidayat No. 22 that whenever it is deemed necessary to implead the State or any one of its Departments as a defendant in a civil suit, sanction of Darbar should first be obtained.

Thus it is clear that no suit could be filed against the Kotah State in its own courts without the sanction of Darbar till then. 'Hidayat Gair Mansookh Shuda Seege Diwani' amended up to the 80th of September 1930 substitutes the name oi Mehkma Khas in place of that of Darbar which appeared in Hidayat No. 22 of the year 1914. In the year 1940 Civil Procedure Code of 1908 was made applicable to the Kotah State under a notification issued by the Ruler.

Sections 79 and 80 of the British Indian Civil Procedure Code were included in it mutatis mutandis. The provision of Hidayat 22, however, continued in force even though the Civil Procedure Code had come into force. By notification of Mehkma Khas Kotah dated the 26th of November 1947 which was published in the Kotah State Gazette of the 16th of December 1947, Hidayat No. 22 was repealed and the following provision was substituted in its place.

'Whenever it is deemed necessary to implead the State or any one of its Departments as a defendant in a civil suit, it shall be mandatory to comply with the provision of Section 80 of the Civil Procedure Code.'

The notification of Mehkma Khas referred to above is significant in so far as the consent of Mehkma Khas for filing a suit against the Kotah State or any one of its departments was dispensed with.

Thereafter suits could be filed against the State or its departments after serving a notice under section 80 of the Civil Procedure Code without obtaining permission of the Darbar or Mehkma Khas. The Administration Report of Kotah State published under the authority of the State Government for the year from 1st October 1938 to 30th September 1939, described Mehkma Khas as consisting of two Members who conducted the Administration under direction of His Highness the Maharao Sahib Bahadur of Kotah.

The laws in force in Kotah State were continued by Section 3 of Ordinance No. 1. Thus the position that prevailed in Kotah State before the formation of the United State of Rajasthan in this behalf was continued by Ordinance No. 1. By the provision of Section 17 of Ordinance No. 1 of 1948 the same position was reiterated and extended throughout the territories of the United State of Rajasthan.

13. As regards the second point, the learned counsel for the State has not referred to any authority in support of his contention. It may be noted that there is no provision of any law under which it may be necessary for the plaintiff to implead a servant as one of the defendants even when he may not desire to get any relief against him in a suit against the master. The argument of the learned counsel has no substance in it. It is open to the plaintiff to sue the servant and the master both or only one of them.

14. The learned counsel for the State referred to the decision of the Supreme Court in Dalmia Dadri Cement Company's case, AIR, 1958 SC 816 and contended that it was not proved by the plaintiff that the United State of Rajasthan, against which the suit was filed, undertook the liability of the former United State of Rajasthan in this behalf and no decree, therefore, could be passed against the defendant.

We may refer to para 6 of the plaint wherein it was stated that the present State of Rajasthan was liable for the acts of the former United State of Rajasthan and its officers. In reply to para 6 of the plaint it was mentioned in the written statement filed on behalf of the defendant that 'In para 6 of the plaint it is not admitted that the Government was liable for the acts of its servants'.

In view of the reply filed by the defendant to para 6, it is evident that the Government admitted that it was liable if the former United State of Rajasthan was liable. All it disputed was that the State was not liable for the torts committed by its servants. The State is thus debarred from raising this question in the present appeal. Admission ot the State which is implied in the pleadings cannot be disowned by the State at this stage.

(His Lordship then narrated in para 15 the circumstances which led to the issue of warrants by the Chief Minister under Section 3 of the Public Safety Ordinance for the arrest of the leaders of Shri Prajamandal Party including the plaintiff on 13-7-1948, The judgment then proceeded :)

16. It is significant that the evidence produced by the defendant does not allege that the plaintiff was in any manner responsible for inciting the people to commit violence.

(His Lordship after discussing the evidence concluded:)

There was thus no reasonable or probable ground for the Commissioner to be satisfied that the plaintiff was likely to so act in a prejudicial manner.

17. Section 44 of the Rajasthan Public Safety Ordinance is as follows:

'No suit, prosecution or other proceeding shall lie against any person for anything done in good faith purporting or intended to be done in pursuance of this Ordinance or against any person for any toss or damage caused to or in respect of any property whereof possession has been taken under this Ordinance.'

The Court below has held that Section 44 did not afford protection to the Government for the reaeon that the Government cannot be included in the definition of the term 'person' appearing in Section 44. 'Person' has been defined by Section 3(34) of the Kotah General Clauses Act (No. XI of 1945) published in the Gazette of 2nd July 1945 as follows:

'Person' shall include any company or association or body of individuals whether incorporated or not:'

The General Clauses Act of Kotah is applicable to the interpretation of the Public Safety Ordinance by virtue of Section 3 of Ordinance No. 1 of 1948. The definition of 'person' as per Kotah General Clauses Act is wide enough to include Government also. In State of U. P. v. Kanhayalal Makund Lal, (S) AIR 1956 All 383 the Government has been held to be included in the definition of the term 'person' with reference to Section 3(42) of the Central General Clauses Act.

The definition of 'person' as per Kotah General Clauses Act is exactly the same as given in Section 3(42) of the Central General Clauses Act. The court below was not right in holding that the Government was not included in the term 'person' in Section 44 of the Ordinance. Moreover, if the Commissioner is protected under Section 44, the vicarious liability of the State would also not arise for the simple reason that such liability is co-extensive with the liability incurred by the servant

In order to find out whether Section 44 can be pleaded a bar to the suit, it is necessary to examine the question of good faith of the Commissioner in passing the impugned order. 'Good faith' has not been defined in the Ordinance itself, nor has it been defined by the Kotah General Clauses Act. It has been defined by Section 3(22) of the Central General Clauses Act as follows:

'A thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not.'

'Good faith' has also been defined in Section 52 of the Indian Penal Code as follows:

'Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention.'

Though the Central General Clauses Act and the definition given in the Indian Penal Code do not directly apply in the matter of interpretation of the term appearing in Section 44 of the Public Safety Ordinance, the meaning of the term can be gathered with reference to those definitions.

The literal meaning of the term is also the same as has been given in the definition of the term in the Central General Clauses Act. 'Good faith' has been defined in the General Clauses Act with reference to the use of the term 'honestly'. If a thing is done honestly, it is deemed to be done in good faith, notwithstanding some negligence. The term 'honestly' came up for interpretation in Re Second East Dulwich 745th Starr-Bowkett Building Society, (1899) 68 LJ Ch 196 at pp. 197, 198 and Kokewich, J. observed as follows:

'The Legislature has passed the Judicial Trustees Act, 1896. excusing trustees for breach of trust, but that Act does not apply here. According to the Act (section 3 repealed; see now Trustee Act, 1925, Section 61) a trustee, if he is to be excused, must act 'honestly and reasonably.' The word 'honest' is used in many senses. In one sense a trustee is honest if he has not done anything dishonest. Now, there is nothing of that sort urged against Streeter; there is no suggestion that he has done anything dishonest. He has paid the 391 16 Section 4 d, which was found to be due to the society from Pearce, and is so far acquitted of dishonesty in the usual sense of the word. But in another sense he is not honest. It seems to me that a man who accepts such a trusteeship, and does nothing, swallows wholesale what is said by his co-trustee, never asks for explanation, and accepts flimsy explanations, is dishonest.'

(Vide Words and Phrases Judicially Defined Volume 2 at page 478 by Roland Burrows K. C).

18. The evidence of both Ganesh Singh and Parmanand as well as other witnesses as discussed above (deleted in this report -- Ed.) shows that there was no material before the Commissioner to afford even a probable ground for believing that the plaintiff was likely to commit any prejudicial act referred to in Section 3(1), The Commissioner reproduced the three grounds given in the section itself in his order which also goes to show that he did not apply his mind to the particular circumstances of the case in order to come to the conclusion as to which one of the grounds existed in the instant case.

In order that Section 3 of the Ordinance may be attracted, the Commissioner had to be satisfied that the plaintiff was likely to commit an act prejudicial to the public safety, the maintenance of public order and Government's relations with the Government of India. The Commissioner in the instant case did not care to examine the question whether the plaintiff was likely to do such a prejudicial act.

He cannot under these circumstances be said to have acted honestly in a judicial sense. He did not act dishonestly, but that is not enough. The order of the Commissioner, under the circumstances, cannot be taken to have been passed in good faith within the meaning of Section 44 of the Ordinance. The protection given by Section 44 would, therefore, be not available to the State for this reason.

19. The case of the petitioner is that the order of his detention was passed by the Commissioner at the instance of the Government for the simple reason that he was a member of Shri Prajamandal Party which was opposed to it.

(His Lordship after discussing the evidence, concluded:)

We, therefore, hold that it has not been proved that the Commissioner acted under instructions from the Government.

20. Next it was argued that by delegating its powers to the Commissioner under Section 43 of the Ordinance, the Government constituted the Commissioner as its agent and it was liable for his acts which were performed within the scope of his employment. In the alternative it was argued that the act of the Commissioner in ordering re-arrest of the plaintiff was subsequently ratified by the Government so as to make it liable.

It has been contended on behalf of the plaintiff that ratification by the Government should be inferred from the fact that (1) the Government opposed the release of the plaintiff in habeas corpus petition and (2) it sanctioned engagement of Shri Kalyanprasad as counsel for this purpose on a fee of Rs. 500/- per day.

21. It may be noted that the delegation of the power to the Commissioner under Section 43 did not make him an agent of the Government in the ordinary sense of the term for the reason that the Commissioner, after he was clothed with the powers to act under Section 3, had to exercise his own discretion in the matter. The power delegated was a statutory one and in exercising that power, the Commissioner did not act as an agent of the Government. He acted for himself under the law.

22. The maxim 'Respondent Superior' has no application, nor does the ordinary law relating to Principal and Agent, apply to such cases. Where a Government officer purports to act under a Statutory power conferred upon him, it cannot be said that he acts as an ordinary agent of the State. He is in such cases only discharging a duty imposed upon him by law and not by the will of the Government employing him and, therefore, whatever wrong he does is his own and not that of his employer; the officer performing such a statutory duty is not obeying any command of the State, but that of the Law (Vide A. M. Boss v. Secretary of State, ILR 39 Mad 781: (AIR 1916 Mad 1157), Shivabhajan v. Secretary of State, ILR 28 Bom 314, Mervanjee v. Secretary of State, 16 Ind Cas 714 at p. 723 (Bom).

The contention of the plaintiff that the Commissioner acted as an agent o the Government in ordering re-arrest of the plaintiff is, therefore, not well founded. This also disposes o the argument of the learned counsel for the plaintiff regarding ratification by the Government of the act of Commissioner. The Commissioner not being an agent of the Government, his act in ordering the detention of the plaintiff cannot be said to have been performed on behalf of the Government. Government could not, therefore, ratify it even though it may have approved of the action of the Commissioner.

23. The learned counsel of the plaintiff drew our attention to the following observations of the Supreme Court in the State of Bihar v. Abdul Majid, AIR 1954 SC 245:

'As regards torts of its servants in exercise of sovereign powers, the Company was not, and the Crown in India was not, liable unless, the act had been ordered or ratified by it.'

It may be noted that the case of Abdul Majid, AIR 1954 SC 245 was for recovery of arrears of salary of a civil servant and the observations referred to above were in the first place obiter in that case and secondly it may be noted that a Sovereign act may be performed by a servant of the State in exercise of his executive powers as well as the statutory powers and the observations of their Lordships of the Supreme Court referred to above would apply to the case of the Sovereign acts of a servant in executive capacity and not to those done in exercise of statutory functions.

24. As regards the point of limitation, we think the court below has rightly applied Article 19 of the Limitation Act in holding that the suit for second detention was not barred by law. The contention of the learned counsel for the State was that Article 2 governs the case of the plaintiff and not Article 19. Articles 2 and 19 are as follows:

2.For compensation for doing or for omitting to do an act alleged to be inpursuance of any enactment in force for the time being in India.

Ninetydays.

When theact or omission takes place.

19.For compensation for false imprisonment.

Oneyear.

When theimprisonment ends.

Article 2 is of a general character and would apply to those cases which come under it and for which there is no other special provision in other articles of the Limitation Act. Article 19 is specially for cases relating to false imprisonment. The case of the plaintiff is for damages for false imprisonment and Article 19, therefore, particularly applies to it. The maxim 'generalia specialibus non derogant'--a general provision must yield to a special provision--is applicable in this connection.

25. In Rohini Kumar v. Niaz Mahammad Khan, AIR 1944 Cal 4, Article 23 of the Limitation Act was held applicable to a case of malicious prosecution and not Article 2 for the reason that Article 23 was a specific Article and it governed file case in preference to Article 2.

26. The learned counsel of the State has referred to the decision in Shariful Hasan v. Lachmi Narain, AIR 1932 All 16. In that case a Sub-Inspector of Police arrested the plaintiff on account of malice and sent him after arrest to Agra under handcuff's. Article 2 was held applicable to the case and not article 36 for the reason that Article 3 was more special when compared to the residuary Article 36. The learned Judges did not consider the application of Article 19 and the judgment in the case is, therefore, not helpful.

27. The second authority referred to by the learned counsel for the State is Jaques v. Narendra Lal Das, AIR 1936 Cal 653. In that case a police officer caused hurt to Satyagrahis who marched in a procession in a street. It was held that Article 2 applied to the case. There is no other special article regarding compensation for wrongful restraint or hurt. The decision in Narendra Lal Das's case, AIR 1936 Cal 653 is not helpful for this reason. In the instant case, as noted above, Article 19 is a special provision and it would, therefore apply to the plaintiff's suit in preference to Article 2 which is of a general character.

28. The claim of the plaintiff as regards damages for his first detention is barred under Article 19 for the reason that the suit was filed more than one year after the cause of action arose to the plaintiff in that behalf. His claim for damages in respect of his second detention is within limitation by excluding the period of notice under Section 80 of the Civil Procedure Code.

29. Coming now to the question of quantum of damages, the following sums have been claimed for the second detention:

(1) Rs. 800/- for professional loss.

(2) Rs. 2,000/- for mental worry.

(3) Rs. 500/- for physical discomfort.

(4) Rs. 100/- as expenses for prosecuting second habeas corpus petition.

(5) Rs. 1,600/- for loss of reputation.

30. The trial court decreed the first four items in full and disallowed the fifth item for the reason that detention under Public Safety Ordinance does not entail loss of reputation. The learned counsel for the plaintiff has urged that the amount of Rs. 1,600/- that has been disallowed is recoverable by the plaintiff, for, the detention of the plaintiff did cause loss of reputation to the plaintiff. The plaintiff produced evidence to prove that his professional income on an average was Rs. 800/- per month.

He has also proved the expense of Rs. 100/-in relation to his, habeas corpus petition against the second detention. Having regard to the status of the plaintiff, the court below held that the amounts claimed by him on all the items except for reputation were reasonable. In an action for false imprisonment, the amount of damages is purely in the discretion of the Judge and his discretion is not to be lightly interfered with in appeal. In our opinion, the discretion exercised by the trial court in this behalf cannot be regarded to be unreasonable.

31. However, as regards the amount of Rs. 1,600/- claimed by the plaintiff for loss of reputation, we think the court below was not right in holding that preventive detention does not entail loss of reputation. Ordinarily the people presume that preventive detention is ordered only in connection with illegal activities and the reputation of a person who is so detained does suffer. The amount of Rs. 1,600/- claimed in this behalf by the plaintiff is also reasonable for loss of his reputation.

32. In view of our finding discussed above that the Government is not liable for the act of the Commissioner in ordering wrongful detention of the plaintiff, we allow the appeal and dismiss the suit. In the circumstances of the case, we direct that the parties shall bear their own costs throughout.


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