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Perumal Chettiar Vs. S.A. Peer Mohamed - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Reported in(1962)2MLJ212
AppellantPerumal Chettiar
RespondentS.A. Peer Mohamed
Cases ReferredAshby v. White
Excerpt:
- t.n. district police act, 1859 [act no. 24/1859]. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); [a.p. shah,c.j., f.m. ibrajhim kalifulla & v. ramasubramanian, jj] rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article 309 of the constitution., the rule is not assailed on the ground of lack of competence. it is challenged only on the ground that it is violative of articles 14 and..........permits the operator to compound the tax assessable on him by making suitable application to the prescribed officer, section 5 of the act imposes an obligation on the operator to deliver to the officer in charge of any police station which lies on or in the neighbourhood on the road on which his vehicle is used a return in the prescribed form either daily or at such other intervals as may be prescribed. the tax payable during any month in accordance with the returns submitted under section 5 shall be paid into a government treasury by the operator and the receipt evidencing such payment should be forwarded to the prescribed officer on or before the 15 th day of the month immediately succeeding. where the operator does not submit any return or where the return submitted by the operator.....
Judgment:

Jagadisan, J.

1. The question of law that arises in this Second Appeal is whether it is lawful for a Sub-Inspector of Police to seize and detain a motor vehicle in pursuance of the direction from the Regional Transport Officer for non-payment of tax levied under Madras Act (XVI of 1952), and if such act is not lawful whether he can invoke the benefit of Section 17 (2) of the said Act in an action against him for damages instituted by the owner of the vehicle.

2. S.A. Peer Mohamed was the owner of a motor lorry, MDU 2382 with a public carrier permit under the provisions of the Motor Vehicles Act. In exercise of the powers under Madras Act (XVI of 1952), the Regional Transport Officer, Madurai, assessed him to pay a tax of Rs. 30 for the month of October, 1954, in respect of his lorry. The notice, Exhibit B-4, dated 2nd June, 1955, which was despatched on 10th June, 1955, demanding that the tax levied should be paid within 15 days after the receipt of the said notice, was actually received by him on 15th June, 1955. He had time to pay the tax demanded till 30th June, 1955. The Regional Transport Officer forwarded a copy of this demand notice, Exhibit B-7, to the Sub-Inspector of Police, Natham, and intimated that the vehicle may be seized for non-payment of the tax under Section 11 of the Act. The Sub-Inspector of Police then stationed at Natham was one Perumal Chettiar. On 21st June, 1955, Perumal Chettiar, the Sub-Inspector, stopped the lorry on the road leading from Madura to Dindigul and had it detained in the compound of the Police-Station premises at Natham. At the time of seizure the lorry was driven by one Karuppiah, an employee of Peer Mohamed. The Sub-Inspector sent a report, Exhibit B-8 to the Regional Transport Officer on 23rd June, 1955, at about 8-20 p.m. As a certificate of payment of the tax by Peer Mohamed on 23rd June, 1955, was produced before the Sub-Inspector, he released the lorry and obtained an acknowledgment to that effect, Exhibit B-6 from P.W. 1 the agent of Peer Mohamed.

3. Peer Mohamed filed the suit O.S. No. 334 of 1955 on the file of the District Munsif's Court, Melur, against Perumal Chettiar, the Sub-Inspector of Police, for recovery of Rs. 1,000 of which the sum of Rs. 500 was claimed as compensation for loss of income incurred by the illegal detention of the lorry and the sum of Rs. 500 for loss of reputation on account of the illegal and malicious seizure and detention of the lorry. The suit was resisted by the defendant on the ground that he acted bona fide in the discharge of his official duties and that the suit was not maintainable in view of the bar enacted under Section 17 (2) of Madras Act (XVI of 1952).

4. The learned District Munsif of Melur who tried the suit found that the defendant acted in good faith in the discharge of his duties, and that Section 17 (2) of the Act operated as a bar. He accordingly dismissed the suit with costs. The plaintiff preferred an appeal, A.S. No. 29 of 1957 on the file of the District Court of Madurai against the said judgment and decree. The learned District Judge confirmed the finding of the trial Court that the defendant acted in good faith but was of opinion that the seizure amounted to an act of trespass on the part of the defendant in respect of which Section 17 (2) of the Act did not afford any defence. He found that the plaintiff failed to prove any special damage by reason of the seizure and detention and therefore awarded the plaintiff a nominal damage of Re. 1. He directed the defendant to pay the plaintiff his proportionate costs of Rs. 500 in the trial Court and to pay the plaintiff the vakil's fee on the amount appealed against in the appeal before him.

5. The defendant has preferred the above Second Appeal challenging the correctness of the decision of the lower appellate Court and the plaintiff has filed a memorandum of cross-objections claiming enhanced damages. The Second Appeal was heard by one of us sitting singly in the first instance, and was referred to a Division Bench in view of the importance of the question of law raised. The matter has now been placed before the Division Bench.

6. On 21 st June, 1955, when the defendant seized and detained the lorry, the time allowed to the plaintiff to pay the arrears of tax, namely, 15 days from the date of the receipt of the notice had not expired. This is now conceded on behalf of the defendant. On 23rd June, 1955, when the plaintiff paid the tax as demanded of him by the Regional Transport Officer he paid it within the time allowed to him by the very terms of the demand notice served upon him. Madras Act (XVI of 1952) is a taxing enactment the terms whereof have got to be strictly construed both in respect of the liability of the subject to be taxed thereunder and the penalty to be suffered by the subject for non-payment of the levy made. Section 3 of the Act is the charging section. In so far as it is material for the present case it is as follows:

From and after the commencement of this Act, there shall be levied and paid to the Government a tax on all passengers, luggage and goods carried by stage carriages, and on all goods transported by public carrier vehicles, at the rate of five naye paise in the rupee on the fares and freights payable to the operators of such stage carriages and at the rate of three naye paise in the rupee on the freights payable to the operators of such public carrier vehicle....

Section 4 of the Act permits the operator to compound the tax assessable on him by making suitable application to the prescribed officer, Section 5 of the Act imposes an obligation on the operator to deliver to the officer in charge of any Police Station which lies on or in the neighbourhood on the road on which his vehicle is used a return in the prescribed form either daily or at such other intervals as may be prescribed. The tax payable during any month in accordance with the returns submitted under Section 5 shall be paid into a Government treasury by the operator and the receipt evidencing such payment should be forwarded to the prescribed officer on or before the 15 th day of the month immediately succeeding. Where the operator does not submit any return or where the return submitted by the operator appears to the prescribed officer to be incorrect or incomplete the prescribed officer can determine the sum payable to the Government after giving reasonable opportunity to the operator to make his representations. Non-payment of the tax within the time prescribed enables the prescribed officer under Section 9 of the Act to levy a penalty as provided for therein. Sections 10, 11 and 14 prescribe the consequences of non-payment. Section 10 (1) is as follows:

In the cases referred to in Sections 6,7,8 and 9 the prescribed officer shall serve on the operator a notice of demand for the sums payable to the Government and the sums specified in such notice may be recovered from the operator as if they were arrears of land-revenue.

Section 10 (2) is as follows:

Where the sums specified in the notice of demand are not paid within fifteen days from the date on which the notice was served on the operator, the taxable vehicle and the accessories may be distrained and sold under the appropriate Act relating to the recovery of land-revenue, whether or not such vehicle or accessories are in the possession or control of the operator.

Section 11 reads as follows:

No taxable vehicle shall be used on any public road in the State--(a) in case any tax or penalty payable in respect thereof remains unpaid for more than fifteen days after the notice of demand referred to in Section 10 has been served on the operator, until such tax or penalty is paid....or

(b) ....

Section 14 of the Act reads thus:

Any person who:

(a) ....(b) being an operator, fraudulently, evades or allows to be evaded, the payment of any tax due from him; or (c)....or (d)....shall be punishable with fine which may extend to one thousand rupees, and if the Magistrate concerned so directs in his order, (he person convicted shall pay in addition, as if it were a fine, such specified amount as the Magistrate may determine to be the amount which the person convicted has evaded to pay.

The provisions referred to above plainly indicate the scope and ambit of the Act. The prescribed authority has to assess the tax and to send a notice demanding payment on default being made by the assessee. It is only after such service of notice of demand the amount can be collected under Section 10 of the Act as if it was an arrear of land revenue. Section 11 no doubt enacts a prohibition of the user of the vehicle on any public road. But that prohibition can arise only in a case where the tax or penalty payable remains unpaid for more than 15 days after the service of the notice of demand. The Act nowhere empowers any authority to seize and detain the vehicle even in a case where the assessee commits default by not paying the tax within 15 days after the receipt of the notice of demand. A fraudulent evasion of payment of tax is constituted as a penal offence punishable by a Magistrate, not inferior to that of a Presidency Magistrate or a Magistrate of the Second Class. It is not possible to imply a power of seizure of the vehicle on the part of any executive authority by reason only of the bar of user of the vehicle provided for under Section 11 of the Act. Such a power cannot be said to be ancillary, incidental or indispensable to the fulfilment of the main object and purpose of the Act to levy tax and collect the tax so levied.

The general rule on this head of law is, that where the Legislature gives power to a public body to do anything of a public character, the Legislature means also to give to the public body all rights without which the power would become wholly unavailable, although such a meaning cannot be implied in relation to circumstances arising accidentally only.

Brett, L. J. in In re Corporation of Dudley (1881) L.R. 8 Q.B.D. 86. But,..Where a statute requires a thing to be done, but does not impose a specific fine for not doing it, it is not for the Court inferentially to draw the conclusion that a penalty is incurred, (Hammond v. Pulsford L.R. (1895) 1 Q.B.D. 223 .

The Motor Vehicles Act contains specific provision, Section 129-A, for seizure of vehicles. Section 129-A is as follows:

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

The absence of such an express provision in Madras Act (XVI of 1952) is not without significance. We are therefore of opinion that Section 11 of the Act did not confer any power on the defendant to seize the lorry and detain it in his custody Even if it can be said that he had such a power he acted unlawfully in effecting the. seizure on 21 st June, 1955, at a time when the plaintiff cannot be said to, be in arrears of tax as the time allowed to him by the competent authority still remained unexpired.

7. The learned District Judge referred to the decision of Krishnaswamy Naidu, J., in Venkappa Rai v. Devamma : AIR1956Mad616 , and held that the defendant cannot take shelter under the directions given by the Regional Transport Officer, Maudrai, to stop the vehicle from plying on the route. The suit in that case was filed against a Village Pate); for damages for having wrongfully seized certain paddy of the plaintiff under the directions of the Tahsildar purporting to act under the provisions of the Essential Supplies Temporary Powers Act. One of the defences raised by the Village Patel was that he acted under the orders of the superior officers whom he was bound to obey and that therefore he could not be sued for damages in tort. The learned Judge held that such a defence was not tenable in law. The learned Judge held further that Section 16 (1) of the Essential Supplies Temporary Powers Act, (XXIV of 1946), which provides that no suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of any order made under Section 3, Sub-clause (1) of that Act, cannot be invoked by the Village Patel as there was in fact no order under Section 3, Sub-clause (1). Section 16 (1) of that Act is somewhat similar in terms to section; 17 (2) of Act XVI of 1952. But the language of the two sections is not identical.' We are of opinion that the said decision is not of any assistance to us in this case.

8. Learned Counsel for the appellant contended that Section 17 (2) of Madras' Act (XVI of 1952) operated as a bar to the maintainability of the suit. Section 17 is as follows:

(1) No prosecution or other proceeding shall be instituted in a criminal Court without the previous sanction of the Government, against any officer or servant of the Government, for any act* done or purporting to be done under this Act.

(2) No officer or servant of the Government shall be liable in respect of any such act in any civil or criminal proceeding, if the act was done in good faith in the course of the execution of duties or the discharge of functions imposed by or under this Act.

The words' such act' occurring in Sub-section (2) can only relate to ' any act done or purporting to be done under this Act' occurring in subjection (1). The learned Counsel contended that the defendant acted in good faith as concurrently found by the Courts below, that he acted or atleast purported, to act under the Act in effecting the seizure and that even if he had acted in excess of his powers the immunity pro-vided for under Section 17 cannot be taken away. Reference was made to the decision reported in Maharani Gurucharan Kaur of Nabha v. Province of Madras (1944) 1 M.L.J. 399 , in which the Federal Court considered the expression 'done or purporting to be done in the execution of a duty as a servant of the Crown ' which occurred in Section 271 of the Government of India Act of 1935. The following observations of the learned Chief Justice was quoted:

The word 'purporting' would be rendered nugatory if the section were to be limited to acts justified or authorised by law. (Cf. Wilson v. Nathmull (1929) 59 M.L.J. 501 See also Dicker v. Angerstein L.R. (1876) 3 Ch.D. 600. The interpretation of this provisions was discussed at seme length in the judgments delivered in Hori Ramsingh v. The Crown 1939 F.C.R. 159. As observed by one of us there, the question is substantially one of fact to be determined with reference to the nature of the act complained of and the attendent circumstances. English decisions construing similar language in a provision in the Public Authorities Protection Act, 1893, make it clear that the benefit of that statute can be claimed even by an officer who has acted under a mistaken view as to his duty, whether the mistake be one of fact or one of law, if only he honestly believed that he was acting in the discharge of his duty.

9. We do not consider it necessary to express any opinion on the question whether the defendant can be said to have purported to do anything under the Act. It may be that he honestly believed that the statute clothed him with the necessary authority to stop the vehicle from plying on the road. But this is not enough to avail his defence under Section 17 (2) of the Act. That sub-section provides that the act complained of should have been done in the course of the execution of duties or the discharge of functions imposed by or under the Act. As it is plain that the defendant was not executing any such duties or discharging any such functions his defence based upon this provision of law must fail.

10. The seizure of the motor vehicle and its detention for 3 days by the defendant depriving the plaintiff of its possession and user are wrongful and constitute a tort of trespass to moveable property. To take and carry away goods and chattels from another's possession, originally called ' asportation or asportavit ' is a form of trespass actionable in law. The trespasser will be liable to be sued in tort whether the act committed by him was intentional or negligent. If he did it with dishonest intention he is guilty of criminal offence of theft or larceny. The scope of defence on the part of the wrong-doer in actions of this description is often narrow and the prospects of a successful defence are seldom bright. An inevitable accident was held to be a good defence by the Court of Appeal in Coal Board v. Evans (1951) 2 A.E.L.R. 310. In that case it was found as a fact that the defendants could not be charged with negligence. Barring such exceptional cases, seizure of a movable property from another's possession negligently or intentionality is actionable per se without proof of actual damages. (Lord Blanesbowegh in William Leitch & Co. v. Leydon L.R. (1931) A.C. 90 .

11. The learned District Judge has found as a fact that the plaintiff failed to prove the quantum of damages said to have been suffered by him, and therefore awarded him only a nominal damage of Re. 1. We agree with the finding of the Court below that the quantum of actual damages has not been proved. But the defendant is yet liable to pay atleast nominal damages. The action is well-founded and we need refer only to the legal maxim 'ubi jus ibi remedium'. (There is no wrong without a remedy). This is a case where the injury itself imports damage. In the classical words of Chief Justice Holt in Ashby v. White 1 Smith's Leading Cases 251.

Every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove contrary; for damages is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right. As in an action for slanderous words, though a man does not lose a penny by reason of speaking them, yet he shall have an action. So if a man gives another a cuff on the ear, though it costs him nothing, no not so much as a little diachylon, yet he shall have his action, for it is a personal injury. So a man shall have an action against another for riding over his ground though it do him no damage; for it is an invasion of his property and the other has no right to come there.

We are clearly of opinion that the plaintiff is entitled to the nominal damage of Re. 1 awarded to him by the learned District Judge.

12. There is no substance in the memorandum of cross-objections. The Second Appeal and the memorandum of cross-objections are both dismissed. The parties will bear their respective costs throughout.


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