1. This is a reference made by the City Civil Court at Madras under Section 113 of the Code of Civil Procedure in a pending suit O. S. No. 193 of 1963 for the opinion of this court relating to the validity of Section 49(1) of the Madras General Sales Tax Act, 1959.
2. The said suit is one for recovery of damages filed by a firm M/s. K.O.M. Sulaiman & Co., against the State of Madras and two Assistant Commercial Tax Officers alleging that the said officers illegally trespassed into its business premises, seized the goods and refused to release the goods, that the said officers demanded payment of arrears of sales tax due from one M/s. K.M.S. Khursheed & Co., that in spite of the protests of the plaintiff that it was not in any way connected with that firm, the officers seized the goods of the plaintiff with shoof force and police authority and that a request for release of the goods was not complied with. The plaintiff also averred that a Writ Petition No. 989 of 1962 Mohamed Sulaiman & Co. v. State of Madras  16 S.T.C. 571 was filed before this court for the issue of a writ of mandamus for the release of the goods and that an order of release in respect of a portion of the goods seized was passed by this court. While taking delivery of the goods it was found that the goods had considerably been damaged. The plaintiff therefore has stated that the act of seizure of the goods of the petitioner and detention of the same for realising the sales tax arrears due by someone else was quite unauthorised by the provisions of the Madras General Sales Tax Act, that the officers have not acted in good faith, that their action was mala fide purely intended to insult, intimidate and annoy the plaintiff and that, therefore, the defendants are liable in damages to the plaintiff. According to the plaintiff, the seizure, attachment and distraint of the goods were made recklessly without reasonable cause and they constitute an unlawful taking away of its property for a liability for which it is in no manner responsible and the defendant's action also amounted to defamation of the plaintiff and its fair name in the eyes of the public If estimated, the damages towards loss of reputation caused by the alleged high-handed and mala fide action of defendants 2 and 3 at Rs. 10,000 and towards the loss suffered by the plaintiff as a result of the damage to the goods and the cost of the survey at Rs. 4,803.83.
3. The above suit was resisted by the defendants on various grounds. One of the defences taken was that the suit is baned under Section 49 of the Madras General Sales Tax Act, 1959 (Madras Act 1 of 1959), as it has been filed without the previous sanction of the Government as required in Section 49(1).
4. The plaintiff filed a replystatement wherein he contended that Section 49(1) is ultra vires and constitutionally invalid. In vieof this stand, the court framed an issue, in the suit as to whether Section 49(1) of the Madras General Sales Tax Act, 1959, is ultra vires.
5. At the instance of the plaintiff, the above issue was taken up as a preliminary issue. At that stage, the plaintiff filed an application seeking a reference to this court under Section 113 of the Code of Civil Procedure for its opinion on the question of the validity of Section 49(1). The trial court allowed that application and made this reference for the opinion of this court on' the said question. While making the reference, the trial court had expressed its view thus :
In the present case, the plaintiff is proceeding against defendants 2 and 3 for damages. It will have to approach the first defendant, State of Madras, for issuing of a sanction to institute the suit. The contention that no procedure has beenaid down and no rules have been formulated as to the manner in which the sanction is to be applied for has not been questioned. The materials on the basis of which the Government could accord sanction or refuse to give sanction are not also disclosed This may amount to discrimination, as the Government servants are to be placed in a special position of advantage which is not available to ordinary citizens. This provision offends Article 14 of the Constitution of India, which provides that the State shall not deny to any person equality before the aor the equal protection of the laws within the territory of India. I am, therefore, of the opinion that this provision is invalid. But it has not been so declared by the High Court or the Supreme Court. So the plaintiff is justified in asking for a reference under Section 113 of the Code of Civil Procedure.
6. Before us it is stated by Mr. V.K. Thiruvenkatachari, theearned counsel for the petitioner, that though it has been contended by the plaintiff that Section 49(1) as such is ultra vires, he would confine his attack on Section 49(1) so far as it relates to civil suits and it was fairly conceded by him that Section 49(1) is valid so far as it relates to criminal proceedings. Theearned counsel also adopted a differentine of attack. Before theower court it was contended that Section 49(1) is violative of Article 14 of the Constitution and that contention was accepted. But noit is contended that it contravenes Article 19(l)(f) of the Constitution. According to theearned counsel, every citizen has a fundamental right to protect his person or property and to prevent others from trespassing on his person or property and when there is an infringement of such right, his right to get redress by way of compensation in a court ofacannot be taken away, or restricted in any manner and Section 49(1), so far as it prevents the filing of such a suit without the sanction of the Government, is an unreasonable restriction on one's right to protect his or her property against trespass. It is pointed out that Section 49(2) has given complete protection to the authorities for acts done in good faith, that there is, therefore, no justification for imposing such a restriction on the citizen's right to resort to court whenever there is a trespass on his property by the officers acting mala fide and that in respect of the mala fide acts they are not entitled to any protection, for such mala fide acts cannot be said to have been authorised by the statute. It is further stated that it may be essential to protect the officers doing public duties in good faith in the interest of the public and that, therefore, the restriction contemplated by Section 49(2) in respect of bona fide public acts may be taken to be a reasonable restriction. But the restriction contained in Section 49(1) cannot be said to be a reasonable restriction in public interest in that the officers doing things not authorised byawith a mala fide intention are not entitled to any protection. It is stated that while under the generalaof torts no immunity from civiliability is given to a public servant when he acts mala fide and outside the statute, the provision in Section 49(1) is intended to confer such immunity to officers functioning under the Madras General Sales Tax Act. It is also pointed out that when a party aggrieved against an act of trespass committed by a public authority approaches the court for damages, the court has to naturally find out whether the authority has acted within its statutory powers and whether the act was done in good faith. If the court finds that the authority has acted in exercise of its statutory powers and in good faith, the plaintiff may not get any relief. By making this provision in Section 49(1) requiring the previous sanction of the Government for filing such a suit, the Government itself takes upon the function of deciding whether the authorities have acted in good faith or not and under the guise of this provision the Government can effectively prevent suits being filed against their officers for their unauthorised mala fide acts. The learned counsel submits that there is a clear distinction between a civil suit for damages for trespass and a criminal prosecution for offences committed, that while the former has nexus with one's fundamental right to protect his property, the latter has nothing to do with one's fundamental right but mostly concerns the State and that, therefore, a provision for a prior sanction of the Government may be justified in criminal prosecutions but such a provision in respect of civil suits, cannot beegally sustained on the ground of public interest. It is also submitted by the learned counsel that a right to get compensation for any trespass on one's property by any person is a vested right and such a right cannot be subject to the condition of the Government granting sanction and that one form of protection of property and persons consists in getting compensation for trespass on them.
7. In support of his submission that whether the officer concerned acted within the statute and in good faith is a matter to be decided exclusively by courts and that question cannot be taken up by the Government in the guise of considering the question of sanction under Section 49(1), the learned counsel refers to the following passage in 7 Halsbury's 188, paragraph 403 :
If effect is to be given to the doctrine that the existence or non-existence of a power or duty is a matter of law, it should be possible for the courts to determine whether or not a particular power or duty exists and to define its ambit. The right of access to the courts can be excluded by statute, but this is not often done in express terms. On the other hand, powers are often given to bodies other than the ordinary courts to decide questions of a without appeal to the ordinary courts and sometimes in such terms that their freedom from appellate jurisdiction extends to their findings of fact or law on which the existence of their power depends.
8. Reference also has been made to the following observations of Romer ,L. J., in Lee v. Showmen's Guild of Great Britain  1 All E.R. 1175 :
The proper tribunals for the determination of legal disputes in this country are the courts and they are the only tribunals which, by training and experience and assisted by properly qualified advocates, are fitted for the task. The courts jealously uphold and safeguard the prima facie privilege of every man to resort to them for the determination and enforcement of his legal rights
and also to the following passage in the speech of Viscount Simonds in Pyx Granite Co. Ltd. v. Ministry of Housing & Local Government and Ors.  3 All E.R. 6 :
It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words. That is, as McNair, J., called it in Francis v. Yiewsley and West Drayton U.D.C.  1 All E.R. 825, a 'fundamental rule' from which I would not for my part sanction any departure.
9. Dealing with the liability of the Crown servants for acts done, reference is made to 7 Halsbury at page 253, where it has been stated :
They may, however, be sued and made personally liable for tortious or criminal acts committed by them in their official capacity, without showing malice or want of probable cause, unless that is of the essence of the tort or crime. State necessity or the orders of the Crown or of a superior officer cannot be pleaded in defence, except as an act of State in an action by a non-resident alien. In these respects they are in exactly the same position as any servant of any master.
10. Reference is also made to the following passage occurring in paragraph 418 at page 197 of the same volume :
The right of property, which is protected by various proprietary and delictual actions, in particular the actions of trespass quare clausum fregit and of trespass de bonis asportatis and by the rule that an intention to take away the property of a subject without giving to him aegal right to compensation for the loss of it is not to be imputed to the Legislature unless that intention is expressed in unequivocal terms.
11. In support of his contention that there is a clear-cut distinction between criminal and civil proceedings and that while in modern times a citizen has no right to initiate criminal proceedings without reference to the State, a citizen had a fundamental right to resort to court in cases of infringement of his rights to property or person, he refers to the following passage in Paton's Jurisprudence, third edition, at page 418 :
The purpose of the law of delict is to protect certain rights which relate to person, property and reputation and to provide compensation or redress for any wrongs which infringe them. The essential mark of the criminalais punishment inflicted by the State, that of delict redress to a wronged plaintiff. But the emphasis on compensation has only lately been made clear.
12. The learned counsel then contended that the right to get compensation for any infringement or injury to the property is a vested right and that right cannot be taken away by withholding of the sanction by the Government and that Section 49(1) so far as it enables the Government to prevent such a suit being filed for getting redress by way of compensation is invalid. That a right to get compensation vests on the person injured even on the date of the accident and the accrual of that right does not depend on the quantification which may be done after some investigation, has been held in Free Lanka Insurance Co. v. Ranasinghe  1 All E.R. 457. In that case, a person was injured while driving a motor car which was in collision with aorry. The owner of the lorry was insured against third party risks with the insurance company under the provisions of the Ceylon Motor Car Ordinance of 1938, the liability being limited to Rs. 20,000. The collision was occasioned by the negligence of the lorry driver. The person injured brought an action against the owner of the lorry and he was awarded Rs. 15,000 as damages against the owner of the lorry. The same was increased in appeal to Rs. 30,000. The Motor Car Ordinance of 1938 was repealed and replaced by the Ceylon Motor Traffic Act of 1951. The Act of 1951 contained no transitional provisions to preserve the rights or claims originating under the Ordinance of 1938. The insurance company resisted the action to recover the said sum of Rs. 30,000 initiated by the injured person contending that as his claim is based on the Ordinance of 1938, which has been since repealed, he could not maintain the action. The Judicial Committee held in that case that the injured person had, within the meaning of Section 6(3)(b) of the Interpretation Ordinance, 'acquired a right' under Section 133(1) of the Motor Car Ordinance of 1938 against the insurance company, although that right might fairly be called inchoate or contingent. Lord Evershed on a due consideration of the following words in Section 6(3)(b) of the Ceylon Interpretation Ordinance of 1900, 'any offence committed, any right liberty, or penalty acquired or incurred under the repealed written law', held that on the date of repeal of the Ceylon Motor Car Ordinance of 1938, the injured person had acquired a right against the insurance company. The learned Law Lord cited with approval the following passage of Lord Morris of Borth-Y-Gest in the judgment of the Board in Director of Public Works and Anr. v. Ho po sang and Ors.  2 All E.R. 721:
It may be ..that...a right has been given but that, in respect of it, some investigation oregal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given.
13. According to Mr. V.K. Thiruvenkatachari, the right to get compensation arising out of the unauthorised acts of officers amounting to trespass is a vested right and that the officer concerned can escape the liability only by proving good faith in a court ofaw and that the enforcement of such a vested right by a citizen in a court ofacannot be prevented by the Government refusing to give the sanction to file a suit. What is contended on behalf of the petitioner is that protection of property and person from unauthorised acts of others consists in getting compensation for such unauthorised acts, that the right to get compensation for unauthorised acts should therefore be taken to be a fundamental right and such a right cannot be taken away or interfered with by theegislature by imposing a restriction, unless such a restriction is reasonable coming within Article 19(5) of the Constitution and that it cannot be said to be in public interest to protect officers who have acted outside the provisions of the Act and mala fide.
14. The learned Advocate-General, who appears for the respondents, contends that such a restriction on the right of a citizen to resort to a court as is contained in Section 49(1) is reasonable and necessary in public interest and that as the prime motive in making the provision is public interest, there cannot be any difference between the initiation of proceedings in a criminal court and that in a civil court. Reference is made to Matajog Dobey v. H.C. Bhari : 28ITR941(SC) . In that case, Section 197, Criminal Procedure Code, was attacked on the ground that it vested an absolute and arbitrary power in the Government to grant or withhold sanction at their sweet will and pleasure and that theegislature did notay down or even indicate any guiding principles to control the exercise of the discretion. Theirordships of the Supreme Court stated that whether sanction is to be accorded or not is a matter for the Government to consider, that the absolute power to accord or withhold sanction conferred on the Government is irrelevant and foreign to the duty cast on the court, which is the ascertainment of the true nature of the act, that no one can take criminal proceedings without such sanction and that though the power is discretionary, it is not necessarily a discriminatory power and the abuse of power is not to be easily assumed, where the discretion is vested in the Government and not in a minor official. The petitioner seeks to get over this decision on the ground that it deals with a criminal prosecution, that criminal prosecution being entirely a matter for the State, the discretion given to the Government could be sustained as being a reasonable restriction but that the requisite sanction for filing a civil suit for unauthorised and mala fide acts of officers cannot be said to be reasonable.
15. In R.R. Chari v. State of U.P. : 1SCR121 , it was said that the first part of Section 197(1) of the Criminal Procedure Code provides a special protection, inter alia, to public servants who are not removable from their offices save by or with the sanction of the State Government or the Central Government where they are charged with having committed offences, while acting or purporting to act in the discharge of their official duties; and the form which this protection has taken is that before a criminal court can take cognizance of any offence alleged to have been committed by such public servants, sanction should have been accorded to the said prosecution by the appropriate authorities. In other words, the appropriate authorities must be satisfied that there is a prima facie case for starting the prosecution and this prima facie satisfaction has been interposed as a safeguard before the actual prosecution commences. The question, however, is whether the officers acting under the provisions of the Madras General Sales Tax Act could have such a protection as is given in Section 197, Criminal Procedure Code.
16. According to the learned Advocate-General, whenever a public authority acts in pursuance of a statute, public interest requires that he should be given protection from frivolous suits or criminal proceedings in respect of such public acts and that it cannot be said that protection is necessary only in respect of criminal proceedings and not in respect of civil suits.
17. The following decisions of the United States Supreme Court were cited to show that such a restriction on the filing of civil proceedings has also been upheld. In Solomon T. Nicholl v. United States 19 L.E. 125, it has been expressed:
Every Government has an inherent right to protect itself against suits and if, in the liberality of legislation, they are permitted, it is only on such terms and conditions as are prescribed by statute. The principle is fundamental, applies to every sovereign power and but for the protection which it affords, the Government would be unable to perform the various duties for which it was created. It would be impossible for it to collect revenue for its support without infinite embarrassments and delays, if it was subject to civil processes, the same as a private person.
18. In United States v. George W.P.C. Lee 106 U.S. 196, it has been stated that the doctrine that the United States cannot be sued as a party defendant in any court whatever, except where Congress has provided for such suit is well established, that the exemption, however, is limited to suits against the United States directly and by name and cannot be successfully pleaded in favour of officers and agents of the United States, when sued by private persons for property in their possession as such officers and agents and that the constitutional provisions that no person shall be deprived of life, liberty or property without due process of law, nor private property taken for public use without just compensation, are intended as limitations upon the power of the Government in its dealings with the citizen and relate to that class of rights whose protection is peculiarly within the province of the judicial branch of the Government. Bernard B. Hans v. State of Louisiana 33. L.E. 842 was a case where an action was brought against the State for wrongful refusal to pay for certain exchange coupons annexed to the bonds of the State and wrongful diversion of the same. The State had declined to pay the said coupons on the ground that its Constitution adopted in 1879 ordained as follows :
That the coupons of said consolidated bonds falling due the first of January, 1880, be and the same is hereby, remitted and any interest taxes collected to meet said coupons are hereby transferred to defray the expenses of the State Government.
19. The defence by the State to the said action was that the plaintiff cannot sue the State without its premission. It was held that the suit directed against the State by one of its own citizens, is not maintainable unless the State itself consents to be sued and the reason given is this:
The suability of a State without its consent was a thing unknown to the law. This has been so often laid down and acknowledged by courts and jurists that it is hardly necessary to be formally asserted. It was fully shown by an exhaustive examination of the old law by Mr. Justice Iredell in his opinion in Chisholm v. Georgia 2 U.S. 2 Dall. 419; and it has been conceded in every case since, where the question has, in any way, been presented, even in the cases which have gone farthest in sustaining suits against the officers or agents of States.
20. It is true in the decisions referred to above it has been held that it is a fundamental principle that the Government cannot be sued except by its own consent and that no State can pass a validafor making the Government suable in its courts. But even the above decisions have not given such an immunity to the officers of the State.
21. In Chester v. Bateson  1 K. B. 829 a provision somewhat similar to the provision in Section 49(1) came up for consideration. Regulation 2A(2) of the Defence of Realm Regulations provided that 'no person shall, without the consent of the Minister of Munitions take any proceedings for the purpose of obtaining an order or decree for the recovery of, possession of, or for the ejectment of a tenant of, any dwelling house' in which a munition worker isiving and which is situate in an area declared by order of the Minister of Munitions to be a 'special area'. This provision was attacked on the ground that it is ultra vires of the Defence of the Realm Consolidation Act, 1914. It was contended that the regulation violated Magna Carta, where the King declares: 'To no one will we sell, to no one will we refuse or delay right or justice.' Darling, J., said :
I could not hold the regulation to be bad on that ground, were there sufficient authority given by a statute of the realm to those by whom the regulation was made.
22. The learned Judge then proceeded to consider the question as to whether the regulation was authorised by the statute and held that the regulation as framed forbid the owner of the property access to allegal Tribunals and that it is an extreme disability inflicted by the regulation and not by a direct enactment of the Legislature. It is in that view the regulation which deprived the subjects of the ordinary right to seek justice in an ordinary court of launless a prior permission of the Minister of Munitions is got was held invalid as it has not been authorised by the provisions of the Defence of the Realm Consolidation Act, 1914. In this connection, it is useful to refer to the following observations of Scrutton, J., in In re Bernard Boaler  I K. B. 21:
One of the valuable rights of every subject of the King is to appeal to the King in his courts if he alleges that a civil wrong has been done to him, or if he alleges that a wrong punishable criminally has been done to him, or has been committed by another subject of the King. This right is sometimes abused and it is, of course, quite competent to Parliament to deprive any subject of the King of it either absolutely or in part. But theanguage of any such statute should be jealously watched by the courts and should not be extended beyond itseast onerous meaning unless clear words are used to justify such extension.
23. The position in the United States seems to be somewhat different. Immunity of the several States of the Union from suit by individuals in the Federal Courts, is guaranteed by the Eleventh Amendment which provided that the 'judicial power of the United States shall not be construed to extend to any suit inaor equity commenced or prosecuted against one of the United States by citizens of another State or subjects of any foreign State'. Roscoe Pound in his work on Jurisprudence, Volume III, states:
It should be observed thategal privilege of the State has been carried much further than immunity from suit. A distinction has been made between immunity from suit and immunity fromiability. Even where the State consents in general terms to be sued in the courts it has been held not to consent toiability for torts of its agents and servants in the scope and course of their employment.
24. From the above discussion it appears to be clear that it is open to theegislature to impose restrictions on the right of a citizen to enforce claims and demands against the State or its officers in the interest of the public, provided such restriction is reasonable. It appears to be wellestablished by nothat the right of access to courts can be excluded by statute. But this is not usually done. It is done only in exceptional circumstances. In this case, theegislature had expressed its intention in unequivocal terms to restrict the commonaright of a subject to resort to courts against the acts of functionaries under the Act by imposing certain conditions for the exercise of that commonaright, to subserve public interest. Public interest consists in giving protection to the officers of the State who have been called upon to exercise certain statutory functions from frivolous action by the persons against whom the statute has been enforced. Section 49(1) cannot be struck down as offending either the subject's fundamental rights to property or the right to compensation for infringement of such fundamental rights.
25. The learned counsel for the petitioner states that the action of respondents 2 and 3 in respect of which damages are claimed in the suit cannot be said to be in good faith especially in vieof the decision of Ramamurti, J., in Md. Sulaiman & Co. v. State of Madras 78 L.W. 18, where the learned Judge has held that arrears of sales tax due by a partner of a firm cannot be recovered by attachment and sale of the properties belonging to another firm of which also he happens to be a partner. It is stated that this is a clear case where defendants 2 and 3 have not acted in good faith in the seizure and attachment of the properties of the plaintiff-firm and in such a case, there is no necessity to get a sanction from the Government. It is not possible to accept this contention. Section 49(1) provides that no suit shallie against any officer or servant of the Government for any act done or purporting to be done under the provisions of this Act, without the previous sanction of the Government. Theearned counsel for the petitioner has brought to our notice an order of the Government refusing sanction in another case. That order shows that the Government refused to give sanction on the ground that the officers concerned have acted in good faith. It is no doubt true that the Government cannot refuse sanction on the ground that the officers acted within the statute or that they have acted in good faith, for those are matters which have to be decided by the court itself in the proposed suit. But the Government can consider whether the suit is frivolous or whether the petitioner has made out a prima facie case for relief against the officers concerned. In this case, the petitioner never applied for sanction and it is not known what order the Government would have passed if an application for sanction under Section 49(1) had been given by the petitioner. There may be cases in which the Government withheld sanction for improper reasons. In such cases, it is open to the party to attack that order on the ground that there has been no proper exercise of the discretion by the Government. But the fact that the Government has refused sanction in another case on grounds which cannot be supported or upheld by a court ofacannot be a ground for striking down the provision in Section 49(1).
26. The trial court in the order of reference has stated that Section 49(1) gives an unguided and naked discretion to the Government either to accord or refuse sanction and, therefore, it is bad. It has also stated that Section 49(1) placed Government servants in a special position of advantage which is not available to ordinary citizens and, therefore, it offends Article 14 of the Constitution. We are not inclined to accept the above reasoning. As already pointed out, the Supreme Court has held, while dealing with the validity of Section 197 of the Criminal Procedure Code, that though the power to grant sanction is a discretionary one, such a power having been given to the Government and not to a minor official, it should be taken that the power will be exercised reasonably and not arbitrarily. In 'the same decision, the Supreme Court bad expressed the viethat the Government servants need a special protection from frivolous actions from parties while the other citizens may not need such a protection and that, therefore, the provision in Section 197, Criminal Procedure Code, does not violate Article 14 of the Constitution. We, therefore, reject the reasoning given by theower court for holding that Section 49(1) is invalid and hold that Section 49(1) is valid and is not violative of Article 14 of the Constitution. The reference is answered accordingly.