Naik, J.:— The suit giving rise to this appeal was filed by the plaintiff against ten defendants for recovery of a sum of Rs. 3,455-1-0 in the following circumstances: The plaintiff is the Lasalgaon Merchants Co-operative Bank Ltd., Lasalgaon. Defendants Nos. 1 and 2 were the constituents of the Bank and had entered into an agreement with the plaintiff to the effect that the plaintiff-Bank should make advances to defendants Nos. 1 and 2 on the security of agricultural produce such as, groundnuts, jaggery, tobacco etc. This agreement took place on November 20, 1952. The plaintiff was to make advances to defendants Nos. 1 and 2 upto sixty per cent of the value of the goods pledged. The upper limit of the credit was fixed at Rs. 5,000. Certain advances were made on the basis of this agreement. On November 16, 1953, the agreement was renewed and was to remain in force till September 30, 1954. In about December 1953 defendant No. 1, which is the firm of which defendant No. 2 is a partner, owed a sum of about Rs. 2,332 towards the income-tax dues. Defendants Nos. 1 and 2 had kept certain packages of tobacco in their own godown and handed over the key of the same to the plaintiff, thus giving the property in possession of the plaintiff. On August 23, 1954, defendants Nos. 1 and 2 were indebted to the plaintiff to the tune of Rs. 3,181. On December 16, 1952, the Income-tax Officer, Nasik, issued a certificate (exh. 68) under s. 46(2) of the Income-tax Act, 1922, and forwarded the same to the Collector, Nasik. He wrote a letter on December 11, 1953 (exh. 69) to the Collector calling upon the latter to make recoveries by attachment and sale of the stock of tobacco or by the attachment and sale of the open plot belonging to defendants Nos. 1 and 2. As already stated, on August 23, 1954, the liability of defendants Nos. 1 and 2 towards the plaintiff would have worked out to a sum of Rs. 3,181 with future interest. At that time, ninety-seven packages of tobacco were in plaintiff's custody. On December 24, 1953, the Collector, Nasik, forwarded the letter to the Mamlatdar, Niphad, for taking necessary action. On August 23, 1954, the Circle Officer went to the godown of the plaintiff, made valuation of the packages of tobacco kept therein under a Panchnama and sought to attach the same. The plaintiff gave a writing (exh. 52) protesting against the proposed attachment. The Circle Officer without giving heed to the protest proceeded to attach the goods. He kept the goods in the same godown, locked it and handed over the key to the police patil of the village. The same day, he made a report (exh. 75) of what he had done, to the Mamlatdar. In this report, the Circle Officer stated:
“In accordance with the orders given by you (Mamlatdar) personally, the tobacco had been attached and kept in the same godown handing over possession to the police patil”.
2. It may be mentioned at this stage that the letter written by the Mamlatdar to the Circle Officer has not been placed on record on behalf of the defendants. The Circle Officer in his report also mentioned the fact that the plaintiff-Bank was claiming that the goods were secured for its dues. He forwarded the protest letter of the Plaintiff to the Mamlatdar for his perusal. In reply to the protest letter, the Circle Officer informed the plaintiff on August 24, 1954, that the goods were attached in pursuance of the orders of the superior officers. It appears that on September 29 or 30, 1954, there were heavy rains and the roof of the godown where the goods were stocked leaked heavily and as a result of the leakage, the tobacco was damaged. On October 1, 1954, the Collector sent a telegram to the Mamlatdar stating that the goods be returned to the plaintiff. Unfortunately, the telegram has not been placed on the record of the case, nor has any evidence been led on behalf of the defendants to show as to why the Collector thought of returning the goods to the plaintiff on this particular day. It appears to have been assumed in the Courts below that this action was taken by the Collector, because the latter realised that the attachment was not regular. In the absence of evidence on the point, it is difficult to say whether this action was taken by the Collector on account of realisation of irregularity, impropriety or illegality of the attachment or because of the fact that the goods have been heavily damaged on account of rains and the Collector felt it imprudent to continue to keep the goods under his custody thereafter. On October 3, 1954, the Circle Officer submitted a report to the Mamlatdar stating that the goods have been heavily damaged on account of heavy rains and also by reason of the fact that the door of the godown was not open. He also stated that defendants Nos. 1 and 2 though informed three or four times were avoiding to accept delivery of the goods. The Mamlatdar informed the Collector about what had happened. On October 8, 1954, the Mamlatdar directed the plaintiff to accept delivery of the goods. On October 14, 1954, the plaintiff replied that it was not going to accept delivery of the goods inasmuch as the goods had been damaged. In this letter it was pointed that the authorities had committed an illegality in attaching the goods. It also stated that it was unable to take delivery of the goods which were wrongfully attached and damaged while in custody. It further stated that it would hold the Government responsible for the dues for which the attached goods were pledged by defendants Nos. 1 and 2. On April 15, 1955, the Mamlatdar sold the goods by public auction for a sum of Rs. 857. It may be mentioned at this stage that according to the allegations in the plaint, the Mamlatdar, Niphad, had informed the plaintiff on January 12, 1955, stating that the Government debt had priority over the debt of the plaintiff and all other private debts. That letter, however, is not on the record of the case. On June 30, 1955, a notice was given ??? the Government under s. 80, Civil Procedure Code, and in due course of time, a suit was filed against the pledgors (defendants Nos. 1 and 2); the State of Bombay (defendant No. 3); the Collector of Nasik (defendant No. 4); M.R Yardi, Collector of Nasik (defendant No. 5); the Mamlatdar of Niphad (defendant No. 6); Gajanan Dattatraya Thite, Mamlatdar of Niphad (defendant No. 7); the Circle Officer, Lasalgaon (defendant No. 8); Ramchandra Nathu Patil, Circle Officer of Lasalgaon (defendant No. 9) and the Union of India (defendant No. 10). It would thus be seen that the Collector, the Mamlatdar and the Circle Officer were sued not only in their official capacity but also in their individual capacity. I will now give a short resume of the case made out by the plaintiff in the plaint. After pointing out that the plaintiff was a secured creditor to the extent of Rs. 3,181 and future interest, the plaintiff stated in the plaint that defendant No. 9, the Circle Officer, came to the plaintiff and informed that he had orders from the superiors to attach the goods. The plaintiff protested saying that it was a secured creditor and that the goods were pledged with it. Notwithstanding this protest, defendant No. 9 proceeded to attach the goods and took away the key of the said godown with him. It is in that way that the plaintiff lost the custody of the pledged goods. The plaintiff then referred to the letter of the Circle Officer dated October 2, 1954, asking it to take delivery of the goods and stated that the Chairman of the Bank had gone to see the goods and found that the goods were greatly damaged. A Panchnama was made regarding the condition of the goods. As the Government was not prepared to accept the responsibility, the plaintiff refused to take delivery of the goods. The plaint then refers to the letter dated October 14, 1954, in which it was stated that the attachment of the goods was illegal and the State Government would be held responsible for the loss caused thereto. The plaintiff pointed out that the Government had no priority over the Bank in respect of the income-tax dues since the Bank was a secured creditor. The plaintiff, therefore, averred that attachment of the goods was illegal, unwarranted and unjustified. The plaintiff alleged that on account of these illegal actions of the Government of Bombay through its officers, the plaintiff was deprived of its custody of the said goods and has suffered a loss to the extent of the whole amount of the debt secured by the pledge. The plaintiff, therefore, sued for Rs. 3,181 as due at the foot of accounts on August 23, 1954, with interest at seven per cent. At para. (x) the plaintiff repeated that the attachment and the further acts of the Government were illegal, unwarranted and unjustified. It also averred that defendants Nos. 4 to 9 were liable as officers and individuals, if the Government should shirk its responsibility and liability on the ground that the acts of the officers were wrongful and tortious. It then stated that defendant No. 10 was liable, because it was at the instance of the Union of India that the State of Bombay through the Collector of Nasik had taken the action complained of.
3. Defendants Nos. 3 to 10, who are the contesting defendants, put in their written statement (exh. 23) and raised the following contentions:
(1) The suit was bad for multifariousness. The claim against defendants Nos. 1 and 2 is on the basis of the original cause of action, whereas the claim against the Government and its servants and the Union Government is based on the wrongful character of attachment of the goods.
(2) The suit against defendants Nos. 4, 6 and 8 is not maintainable, since they acted in their official capacity and they could be only sued in their official designations.
(3) The State of Bombay is not responsible for the alleged illegal attachment or the consequent sale nor has the State of Bombay ratified the act of the officers attaching the tobacco.
(4) Defendants Nos. 5, 7 and 9 are public officers and they have undertaken the recovery proceeding in the discharge of their duties as Revenue Officers under the provisions of the Bombay Land Revenue Code. They have acted bona fide as Revenue Officers in pursuance of the provisions of the Income-tax Act and the Bombay Land Revenue Code and the suit is, therefore, barred under s. 6 of the Bombay Revenue Jurisdiction Act as against defendants Nos. 5, 7 and 9.
(5) The tobacco was not removed from the place where it was deposited by the plaintiff. The plaintiff was requested by the Mamlatdar to take delivery of the tobacco which it refused. The plaintiff was at fault in not taking over the stock of the tobacco. The plaintiff is not entitled to claim any compensation.
(6) The defendants denied the averments that the goods were damaged during the custody of the Government officers as they remained uncared for. All possible care and precaution was taken by the officers while the tobacco was in their custody. On September 29, 1954, there were unexpected rains and the warehouse leaked. This an unforseen incident.
4. It appears that defendants Nos. 1 and 2 remained ex parte. The trial Court held that the attachment of the goods was illegal and wrongful. It also held that the goods became badly damaged, because of the negligence of the Government and its officers. At the same time, the Court held that there was no causal connection between the attachment of the goods and the actual damage caused thereto. Consequently, it came to the conclusion that none of defendants Nos. 3 to 10 was liable for the plaintiff's claim except for a sum of Rs. 857 i.e, the sale proceeds. Consequently, it passed a decree against defendant No. 3 for a sum of Rs. 857. It also passed a decree for a sum of Rs. 3,455-1-0 with future interest on Rs. 3,181, at six per cent per annum against defendants Nos. 1 and 2. Against that judgment, the plaintiff went in appeal to the District Court. The District Court, agreeing with the finding of the trial Court, held that the attachment was illegal and wrongful. The District Court also held that the plaintiff would be entitled to claim damages notwithstanding that negligence was not proved by it. On the question of negligence, the District Court held that the loss occurred not on account of negligence but on account of unavoidable circumstances viz., unforseen and excessive rains. The District Court also held that the plaintiff should have been entitled to claim damages in the ordinary course. The State is not liable for the tortious acts of its servants, since the State had not ratified the act of its servants in attaching the goods. According to the District Court, the Circle Officer (defendant No. 9) alone would have become liable for wrongful attachment but for the protection given to him under s. 6 of the Bombay Revenue Jurisdiction Act. Consequently, the District Court dismissed the appeal and confirmed the decree passed by the trial Court. It is against that judgment that the plaintiff has come up in second appeal.
5. Mr. Abhyankar, Assistant Government pleader, for the State, contended that the Courts below were wrong in holding that attachment of the goods was illegal. It is not disputed that the goods were pledged with the plaintiff and were lying in its possession at the time of the so-called attachment. The determination of the question regarding the legality or otherwise of the attachment mainly depends upon the provisions of s. 46(2) of the Income-tax Act of 1922 and the provisions of ss. 150 and 154 of the Bombay Land Revenue Code. Section 46(2) of the Income-tax Act of 1922 runs thus:
“The Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue”.
6. There is no provision in the Income-tax Act of 1922 under which the Government could claim priority over the secured debts. Section 222 of the Income-tax Act of 1961 corresponds to s. 46 of the Act of 1922. Section 222 of the Act of 1961 instead of referring to income-tax arrears as being recoverable as arrears of land revenue, lays down the procedure to be followed for making recovery of the dues. We are not concerned with the change effected in the procedure for making recoveries. Summarising the legal position prevailing under s. 46(2) of the Act of 1922 and also under s. 222 of the Act of 1961 Sundaram in his book “The Law of Income-tax in India” at page 1058 says:
“While Crown debts cannot have priority over secured debts, profits received by a Receiver in a simple mortgage suit have no priority over Crown debts, for such rents and profits are not part of the security or the debt”.
7. The position of law, therefore, is well-settled and it is to the effect that the Government cannot claim any priority in respect of the income-tax dues vis-a-vis the secured debt. Mr. Abhyankar referred to the provisions of ss. 150 and 154 of the Bombay Land Revenue Code and argued that these two sections make no distinction between the goods being in possession of a debtor or being in possession of a third party. Section 150(c) of the Land Revenue Code provides:
“An arrear of land revenue may be recovered by the following processes:—…
(c) by distraint and sale of the defaulter's moveable property under section 154”.
8. Section 154 of the said Code provides:
“The Collector may also cause the defaulter's moveable property to be distrained and sold”.
9. The distraint of moveable property presupposes that the debtor is in actual possession of the same. It is clear that a secured creditor has a right under law to keep the property in his custody till the debts are paid. He has also the right of getting the property sold in case the debts are not paid. The claim of the debtors in that case would restrict itself to the balance after satisfaction of the dues of the secured creditor. Under the Code of Civil Procedure, different procedures have been laid down in respect of attachment of the goods according to the circumstances viz., whether they are in possession of the judgment-debtor or of a third person. Rule 43 of O. XXI, Civil Procedure Code, provides that where the goods are in possession of the judgment-debtor they are liable to be attached by actual seizure. Rule 46 of the same Order provides that in the case of the moveable property, which is not in possession of the judgment-debtor, attachment can be levied by issuing a prohibitive order calling upon that person not to give the property to the judgment-debtor. It is thus clear that the Circle Officer had no right to effect attachment of the goods by actual seizure. Mr. Abhyankar contended that the mere fact that the Circle Officer has followed the procedure of attaching the goods by actual seizure instead of issuing a prohibitive order would not make the attachment illegal. At best, the attachment would be irregular. I am unable to accept this line of reasoning. The distinction between rr. 43 and 46 of O. XXI, Civil Procedure Code, is of prime importance. When the goods are in the possession of a pledgee, the seizure of the goods amounts to wrongful deprivation of the goods which the pledgee is entitled to retain in his possession. In this connection, reference may be made to art. 31(1) of the Constitution of India, which runs thus:
“No person shall be deprived of his property save by authority of law”.
10. It is not clear whether the Circle Officer was directed by the Mamlatdar to proceed to effect attachment of the goods after he was informed by the Circle Officer that the goods were pledged and the possession was with the pledgee. The documents, which would have thrown light upon this question, have been withheld from the Court. The Circle Officer throughout asserted that he was acting under the orders of his superiors. In the intimation which he gave to the plaintiff, he specifically stated that he was acting under the orders of his superiors in effecting the attachment. In the same way, in his report submitted by him on the date of the attachment i.e, August 23, 1954, the Circle Officer stated that it was in pursuance of the personal directions given by the Mamlatdar that the goods were attached and kept in the godown, the key of which was delivered to the police patil. Neither the Circle Officer nor the Mamlatdar has stepped into the witness-box. It is not, therefore, possible to hold that the Circle Officer acted on his own when he proceeded to effect the attachment. Apart from the question whether the Circle Officer was acting under the orders of his superiors, it is clear that in proceeding to seize the goods with a view to attach the same, the Circle Officer acted without any authority of law. It can at least be said that he acted in excess of the authority given to him by law. Indeed, it was conceded in the Courts below, on behalf of the Government, that the attachment of the goods was illegal. It is, therefore, too late in the day to contend that the act of seizure of goods from the possession of the plaintiff is merely irregular and not illegal.
11. Another point which strikes me is that, it was assumed in the District Court that the action for damages was in the nature of an action in tort on account of loss caused by the negligence of the officers of Government in whose custody the goods were kept. I have set out the averments in the pleadings in some detail, and there is nothing to indicate that the plaintiff was basing its action either upon negligence committed by the Government officers or the Government. The gravamen of the charge is that the attachment and seizure of goods from its possession is illegal. Mr. Abhyankar relied upon the words used in para. (vii) of the plaint and argued that the basis of the plaintiff's claim is that the goods were not taken proper care while in the custody of the Government and that they were damaged on account of negligence of the Government officers. As I have pointed out above, the plaintiff has claimed the amount due to it under the contract with defendants Nos. 1 and 2. It has not asked for damages for wrongful detention of the goods and for their conversion. Its contention is that since the goods, which were pledged with it, were taken away by the Government, the Government is liable for the debt due to it from defendants Nos. 1 and 2 to the extent of the value of the property taken away from its possession. The plaintiff seems to suggest that it would have been entitled to bring the goods to sale and recover the amount and since the goods were taken away from it and it has been deprived of its remedy, those who are responsible for this deprivation will have to pay the amount due to it under the original cause of action. It is stated in para, (x) of the plaint viz.,
“defendants Nos. 4 to 9 are liable to the plaintiff's claim as officers and individuals, if Government shirks its responsibility and liability on the ground that the acts of the officers were wrongful and tortious. Defendant No. 10 is liable to the plaintiff's claim because it is at their instance or for the recovery of their dues that the State of Bombay through the Collector of Nasik has taken the actions complained of”.
12. It is necessary to note that the plaintiff does not aver as a fact that the action of the officers was wrongful or tortious. What it says is, in case the Government tries to shirk its responsibility on the ground that the acts of the officers were wrongful, then the Union Government would be responsible since it was for the recovery of their dues that the action complained of was taken.
13. In that view of the case, the question as to whether the officers were negligent in dealing with the goods while they were in their possession does not acquire much significance. The plaintiff's cause of action is not supplied by the damage caused to the goods on account of the decay, which took place after the heavy rains. The plaintiff's cause of action is based upon the illegal seizure of the goods from its possession. Even so, in my view, the learned District Judge erred in holding that the damage was inevitable and, therefore, the officers, in whose custody the goods were lying, would not be considered as negligent. The trial Court, after due consideration of the evidence, recorded a finding that the officers were guilty of remissness and negligence. The learned District Judge has reversed the finding on the basis of certain surmises. First of all, he says that it could not be said that there were no rains before August 23, 1954, that is to say, before the attachment of the goods. He then points out that the rainy season had commenced in June, 1954, and to borrow his own words “and it does not appear that the roof had leaked at any time before 23rd August, 1954”. Pausing here, there is no evidence, whatsoever, to show that the roof had not leaked before August 23, 1954. The learned District Judge then proceeds to say:
“The plaintiff Bank itself considered that the goods were quite safe in those very godowns where they were kept by it. Under the circumstances, I think that no leakage must have taken place when it was raining in the ordinary way, otherwise, the plaintiff Bank itself would have taken the steps of removing the goods to some other place especially so when it must have rained between the second week of June and 23rd August, 1954. For all these reasons, I think that the leakage occurred because of the excessive rains and this is clear from the statement of the Chairman of the plaintiff Bank himself in the writing passed by him on 3rd October, 1954 to the Circle Officer. He has himself stated therein that the damage has occurred because of the excessive rains which fell on the 29th and the 30th of September…It is true that the Chairman has also stated in his writing that some damage has been caused on account of the failure to air the goods by opening the godowns and the congested air in the godown. However, it cannot be said that the damage that was caused by reason of the rain water having leaked in the godown would have been less if the godown had been opened from time to time and the goods had been aired as seems to be necessary in the case of tobacco. I am not impressed by the reasoning of the learned Judge of the Court below in this behalf, and I have come to the conclusion that the damage that came to be caused to the goods was the result of the excessive rains which fell on the 29th and 30th September, 1954 and that the damage is not due to any negligence on the part of the person in custody of these goods. Negligence cannot be presumed and the same must be satisfactorily proved…”
14. With respect, I must point out that the reasoning is vitiated by a number of assumptions and guesses made by the learned District Judge. Assuming, for a moment, that the heavy loss was largely due to heavy rains, it does not mean that there was no negligence on the part of officers in dealing with the goods of tobacco. The heavy rains do not amount to an act of God. It was the duty of the Government officers to take such care as every prudent manager takes of his own goods. The Government stood in the position of bailees and it is for them to prove that they had taken as much care as was possible for them and that the damage was due to reasons beyond their control. In my opinion, the findings reached by the learned District Judge cannot be sustained. But, as stated above, it has no bearing on the question of the claim made by the plaintiff inasmuch as the plaintiff's claim is based on the act of the defendants in wrongfully seizing the goods.
15. The learned District Judge refused to award the claim of the plaintiff inspite of his finding that the goods were wrongfully attached mainly on the ground that there was no evidence that the act of defendant No. 9 was ratified by the Government. The learned District Judge proceeds to say that the Union Government could not be responsible for wrongful seizure of the goods, because all that the Income-tax Officer did was to send a certificate under s. 46(2) of the Income-tax Act. In addition to the certificate, the Income-tax Officer wrote a letter to the Collector in which he stated that the firm had the stock of tobacco in the ware-house and a plot. He then proceeded to say that the plot was mortgaged to Lasalgaon Merchants Co-operative Bank and suggested that if the plot is likely to fetch more value it should preferably be sold in auction. It seems clear that the Income-tax Officer was under the wrong impression that the plot was mortgaged to the Co-operative Bank. Probably, he was misled by the circumstance that the goods were still lying in the godown belonging to defendants Nos. 1 and 2. By stating that the goods were lying in the godown of defendants Nos. 1 and 2, and omitting to mention that these goods were pledged, in a way, the Income-tax Officer has put the Collector and his subordinates off their guard.
16. That did not, of course, exonerate the Collector and the Mamlatdar from finding out as to whether the goods were in the possession of defendants Nos. 1 and 2 and whether they were liable to be attached and seized. The learned District Judge has observed that the Collector has given no instructions to the Mamlatdar for attaching any specific goods, nor is there evidence to show that the Mamlatdar authorised the Circle Officer to attach the goods, although they were in possession of the plaintiff, who was the secured creditor. So far as the authorisation by the Collector and the Mamlatdar is concerned, there is no evidence led on behalf of the defendants, and so far as the authorisation by the Mamlatdar to the Circle Officer is concerned, I have already pointed out that the Circle Officer has claimed that he proceeded to attach the goods and seize them in accordance with the specific instructions given to him by the Mamlatdar. In my view, the question of special authorisation or of subsequent ratification would not possibly arise in the circumstances of this case. The Bombay Land Revenue Code provides that the Collector can delegate his duties to the Mamlatdar. Under s. 12 of the Code, the Mamlatdar has been authorised to carry out the duties which have been delegated to him by the Collector under the general or special orders of the State Government. It was conceded in the Courts below that powers were delegated to the Mam, latdar and the Circle Officer. In fact, Mr. Abhyankar also relied upon the circumstance that the powers, which the Circle Officer has exercised, were delegated powers. Once it is conceded that the Circle Officer was exercising the delegated powers of the Collector, then it is clear that no special authorisation was necessary. In the same way, the question of ratification by the Government cannot arise for consideration in view of the fact that the Circle Officer was exercising the powers delegated to him under the provisions of law. In this connection, I may refer to the provisions of ss. 150 and 154 of the Code again. Under s. 150(c) of the Code an arrear of land revenue may be recovered by distraint and sale of the defaulter's moveable property under s. 154. Section 154 empowers the Collector to distrain the moveable property of the defaulter and have it sold. I have already referred to the provisions of s. 46(2) of the Income-tax Act of 1922 which provided that the arrears of income-tax can be recovered as if they were an arrear of land revenue. That means that the Circle Officer was exercising the delegated powers when he proceeded to attach the goods. In seizing the goods he acted in excess of the power and, therefore, the seizure of the goods is illegal. But all the same, it is clear that the duty he was performing was enjoined on him by the delegation made by the Collector. That being the case neither the question of express authorisation for the commission of the act nor that of subsequent ratification can possibly arise in a case like this.
17. In this connection, I may refer to a decision of the Allahabad High Court in Prem Lal v. V.P Govt. . [1962] A.I.R All. 233. The facts of that case were as follows: The plaintiff, Prem Lal Singhania, was the owner of a motor truck and a Chevrolet motor car. On January 12, 1948, the District Magistrate of Gorakhpur, purporting to act under the powers delegated to him by the State Government under s. 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. The plaintiff contended that 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 repainted and repaired. Both the vehicles were released on December 18, 1948, having remained in the custody of the Government for over three months. The plaintiff served a notice under s. 80, Civil Procedure Code, 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. 1,410.
18. The State contended that it was not liable for the damages claimed, firstly, because the act was done in the exercise of the sovereign powers of the State and secondly, the action taken by the District Magistrate was not action of the Government.
19. The learned Judge referred to the distinction 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 instruction. It was pointed out that in the first case, the master would ordinarily be liable, but in the second, he is not. In rejecting the arguments for the State, the learned Judge observed (p. 236):
“…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 Sec. 9 of the U.P Requisition of Motor Vehicles (Emergency Powers) Act, 1947”.
20. After citing the said section, the learned Judge proceeded to observe on the same page:
“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”.
21. Referring again to s. 150 of the Land Revenue Code, it would be noticed that under that section several courses are open to the officer who is entrusted with the duty of making recoveries and the distraint and sale of the defaulter's moveable property under s. 154 is one of the many such courses open to him to adopt. In these circumstances, when the officer chooses one of these courses viz., to distrain the goods, he takes such a decision for and on behalf of the Government. The power of decision making has been entrusted to him. It is equally clear that the Circle Officer acted for the benefit of the Government, for if he had recovered the dues, the dues would have gone to the coffers of the Government. In my view, therefore, the question either of express authorisation or of subsequent ratification cannot possibly arise under the circumstances of this case.
22. Mr. Abhyankar relied upon the decision of the Madras High Court in Ross v. Secretary of State . 1913 I.L.R 37 Mad. 55.. The facts of that case were as follows: the plaintiff, who represented the Assam Labour Supply Association in Ganjam and other districts, filed a suit against the Secretary of State for India in Council for damages in respect of two orders of the District Magistrate of Ganjam suspending and dismissing one T.S, the local agent of the Association in Ganjam, and closing his depot to recruiting under the Assam Labour and Emigration Act. The plaintiff complained that he was prevented by these orders from earning from the members of the association his commission of seven rupees for each labourer sent to Assam; and for an alleged libel on the plaintiff in an order passed by the Governor-in-Council on appeals by the plaintiff and others against the aforesaid orders, in which it was stated that the plaintiff's own conduct was not altogether above suspicion.
23. It was held that the District Magistrate had power to dismiss the local agent but he did not have the power of suspending or of closing his depot to recruiting under the Act independently of the Notification. It was further held:
“It was not sufficient to render the company liable that an act of this nature had been done by its servant in the course of employment but without previous order or subsequent ratification. Ratification must have been by the Company (East India Co.) and must now be by the Secretary of State”.
24. It was also held that “the defendant was not liable for the act of the District Magistrate on the further ground that it was done by him in the exercise of statutory authority”. It is significant to note that the learned Judge of the Madras High Court came to the conclusion that the orders passed by the District Magistrate was an act done in the exercise of sovereign powers. The learned Judge, therefore, held that, if that is so, then the State could not be held responsible unless it was established that the orders had been ratified, (see the observation at p. 66). Another decision, on which reliance was placed by Mr. Abhyanker, was in Gurucharan Kaur v. Province of Madras . [1944] A.I.R F.C 41.. The facts of that case were as follows: The plaintiffs filed a suit for damages for false imprisonment against the Government of Madras and four of its police officers. The incident complained of happened on January 13, 1937, at Kodaikanal Road. The plaintiffs are mother and daughter. Kodaikanal falls within Madura District. Defendant No. 2 was the District Superintendent of Police with his headquarters at Madura. Defendant No. 3 was a Sub-Inspector belonging to the Madras Railway Police Service and defendants Nos. 4 and 5 were police constables of the same service. Plaintiff No. 1 was the wife of the ex-Maharaja of Nabha. By an order of the Government of India, the ex-Maharaja was required to stay at Kodaikanal and had been so staying since 1928. He was kept under close surveillance. Plaintiffs Nos. 1 and 2 were staying with the ex-Maharaja at Kodaikanal and wanted to go to Madras early in 1937. Necessary arrangements were made by her Secretary for reserving accommodation for them in ‘Trivandrum Express’ on January 13, 1937. That afternoon, the Station-house Officer at Kodaikanal, acting under the erroneous impression that the ex-Maharaja was arranging to proceed to Madras, sent a telegram to defendant No. 2 in the following terms:
‘Ex-Nabha Raja departuring to Madras Spencer Hotel with family in car M.D 2037.’
25. Defendant No. 2 decided to take steps to prevent the ex-Maharaja boarding the train at Kodaikanal Road railway station. Defendant No. 2 gave a call on the telephone to the railway police staff at the Madura, station platform and as defendant No. 3 answered, defendant No. 2 attempted to instruct him to proceed by that train to Kodaikanal Road and there prevent the ex-Maharaja boarding the train. Defendant No. 3 understood the instructions vaguely and indistinctly, as the platform was noisy and his knowledge of English very poor and he had to catch the train in a hurry as it was about to leave. During the journey between Madura and Kodaikanal Road, he saw that one of the compartments in the train had been reserved for the Maharani of Nabha. Connecting this with the indistinct impressions that he had received from the telephone message from Madura, he seemed to have made up his mind that the instructions given to him by defendant No. 2 must have related to the Maharani.
26. When the train arrived at Kodaikanal Road, defendant No. 3 informed P.W 6, who was waiting on the platform, that he had instructions to prevent the Maharani boarding the train. At that time, she was sitting in her car within the railway compound, expecting to be called to the train by her Secretary. Some discussion took place between defendant No. 3 and P.W 6 and the train had to be delayed for that purpose. The train in the meantime left the station and defendant No. 3 sent a telegram to defendant No. 2 seeking further instructions.
27. It is on these facts that the plaintiffs filed a suit against the State for compensation for wrongful imprisonment. The High Court held that defendants Nos. 2 to 5 acted in exercise of their statutory power and that in such circumstances a person aggrieved by their acts could have no claim against the Government. It also held that the State could not be held liable for the improper conduct of public servants in the discharge of Governmental functions, unless those acts had been done under the orders of the Government or had been subsequently adopted and ratified by it. The Federal Court by majority judgment accepted the second ground and observed as follows (p. 44):
“… As we however agree with the learned Judges as to other ground of their decision in favour of defendant 1, it is unnecessary to discuss this aspect of their decision”.
28. In my view, neither the decision of the Madras High Court nor of the Federal Court assists the Government in the plea about the need of ratification by the Government of the acts of the Government officers. In Boss's case it was held that the acts were done in the exercise of sovereign powers and, therefore, the State was immune from liability. So far as the decision of the Federal Court is concerned, what their Lordships held was that when the conduct of Government servants in the discharge of governmental functions was questionable, the Government could not be held liable unless it was established that those acts had been done under the orders of the Government or had been subsequently adopted and ratified by it. It is thus clear that the question of ratification arises only when Government is sought to be held liable for tort committed by its servants in the discharge of sovereign functions. If the act is ratified, the Government becomes liable notwithstanding that the act was in the discharge of sovereign functions.
29. As stated above, the powers of making recoveries were delegated to the Mamlatdar by the Collector and the Mamlatdar in his turn delegated those powers to the Circle Officer. It is true that the Circle Officer was exercising powers under general authorisation. The powers that he was exercising were powers conferred by statute upon the Collector. It is equally clear that the Circle Officer had exceeded the limit of the powers given to the Collector by the statute and delegated to him. The law does not empower recovery of arrears by attaching and seizing the goods, which are in the possession of third party. In this connection, it will be useful to ??? to the provisions of art. 265 of the Constitution of India, which provides.
“No tax shall be levied or ??? except by authority of law”.
30. Basu, in his ‘Commentary on the Constitution of India’, 4th vol. 4th edn., 1963, has explained the meaning of the word ‘levied’ as follows (p. 229):
“The words ‘levy and collection’ are used in this Article (265) in a comprehensive sense and are intended to include the entire process of taxation commencing from the taxing statute to the taking away of the money from the pocket of the citizen. What the Article enjoins is that every stage in this entire process must be authorised by the law”.
31. The action taken by the Circle Officer in seizing the goods was not empowered by law. It is on that ground also that the act was illegal. At the same time, in view of the fact that the Circle Officer was exercising delegated authority, he cannot be taken to be doing an act in the discharge of his statutory duties.
32. I may now refer to the rulings relied upon by Mr. Abhyankar in support of the proposition that the Government cannot be held liable in tort, when the wrongful act has been committed by subordinate officers in performance of their statutory duties. I will discuss those rulings only briefly with a view to show that the facts of his case do not attract the principles laid down therein.
33. The first decision in that connection is reported in Shivabhajan v. Secretary of State for India . 1904 I.L.R 28 Bom. 314, S.C 6 Bom. L.R 65.. In that case some sixty-two thousand and odd bundles of hay were attached by the Chief Constable of Mahim, while they were in the plaintiff's possession. The plaintiff gave a notice to the District Superintendent of Police, Thana, for delivery of possession of the said quantity of hay, but only 14700 bundles were delivered and the remaining 47800 were not given over to the plaintiff. The plaintiff sued to recover Rs. 293-12-10 from the defendants as damages. The Chief Constable had attached the hay in his capacity as a public servant. The seizure was occasioned on account of complaints lodged against the plaintiff of his having stolen the hay. The charge of theft was not sustained and that is why the plaintiff demanded the return of the hay. It was held that the Chief Constable seized the hay not in obedience to an order of the executive Government but in performance of a statutory power vested in him by the Legislature. It was also pointed out that the seizure of the hay was not in any sense productive of benefit to the Revenue of the Bombay Government, nor was it a transaction out of which profit could be derived. It was further held that there was no ratification or adoption of the act. In my opinion, the decision is distinguishable on the ground that the original seizure of the goods was not only not illegal but was authorised by law and the seizure was, in effect, in pursuance of the statutory powers conferred upon the Chief Constable. A number of bundles appeared to have been lost while they were in the custody of the police. But the State could not be held responsible for the loss occasioned due to negligence of its officers by reason of the fact that the goods had been seized in exercise of the statutory powers. In the present case, the seizure of goods itself is illegal. The question of subsequent damage caused to the goods while they were in the custody of the Mamlatdar has not much bearing on the issue in hand. Mr. Abhyankar also relied upon the two decisions of the Allahabad High Court reported in Ram Ghulam v. U.P Government . [1950] A.I.R All. 206. and Md. Murad v. U.P Govt. . [1956] A.I.R All. 75. and another decision of the Madhya Pradesh High Court reported in State of M.P v. Singhai Kapoorchand . [1961] A.I.R M.P 316.. The facts of these cases were similar to the facts in Shivabhajan's case and the view taken by this Court viz., that Government cannot be held liable for damages in respect of the action taken by the inferior officers in the discharge of statutory powers, was upheld. I may only add that the proposition so broadly stated in Shivabhajan's case may require reconsideration in view of the decision of the Supreme Court in Vidhyawati's case to which reference will be made presently.
34. In this Court, Mr. Abhyankar raised another point of law. He emphasized the well-known distinction between an action taken in exercise of the sovereign powers of the State and an action in respect of commercial transactions or welfare activities. In a recent decision of the Supreme Court in State of Rajasthan v. Mst. Vidhyawati . [1962] A.I.R S.C 933. the Supreme Court, after referring to the decisions of different High Courts and also referring to the provisions of art. 300 of the Constitution of India, held that in respect of the acts done by the subordinates or agents of the Government otherwise than in exercise of the sovereign powers, the State can be made vicariously liable for the tortious act like any other employer. According to the view taken by the Supreme Court, the Government is liable in respect of the acts done in commercial transactions and also acts done in respect of the multifarious activities undertaken by the Government in modern times. At the same time, it seems to have adhered to the view that the Government would not be liable for acts of negligence of its servants in the discharge of sovereign functions. Mr. Abhyankar argued that the levy of tax and the recovery of tax is undoubtedly a sovereign function. No one except the State can possibly levy a tax or proceed to recover the same. Since ancient times the power to levy a tax has been the specific hall-mark or attribute of the sovereign power of the State. I agree with Mr. Abhyankar that the acts of levying of a tax and its recovery are acts done in the exercise of sovereign functions. At the same time, we cannot ignore the provisions of art. 265 of the Constitution of India, which lays down that no tax shall be levied or collected except by authority of law nor the provisions of art. 31(1) which lays down that no person shall be deprived of his property save by the authority of law. The only power, which the State can exercise in the performance of sovereign functions is to recover the tax under the authority of law. But in the present case, the Circle Officer has proceeded to levy and recover the tax without any authority and, in fact, beyond the authority. The immunity of the State in respect of acts done by its subordinates in the exercise of sovereign powers cannot be considered as a dogma or a mantra and will have to be considered on the facts of each case. In this connection, I may refer to certain observations made by Basu in his “Commentary on the Constitution of India”, 4th edn., Vol. IV, 1963, at page 404. After citing the passage from the judgment of the Supreme Court in Vidhyawati's case, to the following effect (p. 940):
“…As already pointed out, the law applicable to India in respect of torts committed by a servant of the Government was very much in advance of the Common law, before the enactment of the Crown Proceedings Act, 1947, which has revolutionised the law in the United Kingdom, also…. When the rule of immunity in favour of the Crown, based on Common Law in the United Kingdom, has disappeared from the land of its birth, there is no legal warrant for holding that it has any validity in this country, particularly after the Constitution”,
the learned author observes:
“In explaining the reason why the Courts should take a broader outlook, the Supreme Court appears to have endorsed the views expressed by the Rajasthan High Court in the judgment appealed from Mt. Vidyawati v. Lokumal . [1957] A.I.R Raj. 305..
‘…the State is no longer a mere police state…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 could engage himself’.
And so observed the Supreme Court—
‘Now that we have, by our Constitution, established a Republican form of Government, and one of the objectives is to establish a Socialistic State with its varied industrial and other activities, employing a large army of servants, there is no justification, in principle or in public interest, that the State should not be held liable vicariously for the tortious act of its servant’.
An instance of the broader outlook is to be found in the decision of the Allahabad High Court in Prem Lal v. U.P Govt. (cited above in another context). In this case, a motor vehicle had been requisitioned by an order under the U.P Requisition of Motor Vehicles Act, 1947. The Court held that the order was mala fide and, hence, invalid and awarded damages for the injury caused to the vehicle during the period of requisition. Obviously, compulsory requisitioning of property under statutory powers is an act which a private person could never do and it is a patent instance of exercise of the sovereign powers of the State. According to the P. & O. dictum, … the suit could not be decreed. Nevertheless, the Court (Dhavan J.) decreed the suit on the ground that—
‘…Judicial authority and public policy demand that the State to-day cannot claim immunity from the tortious liability in respect of the tortious acts of its servants and agents’.
The task of the High Courts and the subordinate Courts would, of course, have been easier if the Supreme Court had in Vidyawati's case [held] that it was Secretary of State for India v. Hari Bhanji . 1882 I.L.R 5 Mad. 273. and not the P. & O.S.N Co. v. Secy, of State for India . 1861 5 Bom. H.C.R Appx. p. 1. which laid down the correct law to be followed in India. So long as this is not done, the litigant, the Bench and Bar would be swinging in the balance between the exploded pillar of absolute immunity and the not-yet-certain post of absolute liability for all acts done under colour of the municipal law”.
35. The facts in Secretary of State for India v. Hari Bhanji were somewhat similar to the facts of the present case. In that case, the plaintiff had purchased a quantity of salt at Bombay and paid excise on it at the rate of Rs. 1-13-0 per maund, the rate leviable under the law there in force, and dispatched it by sea to certain ports. While the salt was in transit, Act XVIII of 1878 was passed and came into force. By that Act the import duty on salt was raised to Rs. 2-8-0 per maund.
36. But in virtue of a notification issued by the Governor-General in Council under the authority of the Indian Tariff Act, 1875, importers were allowed a deduction of the excise already paid, and consequently they were chargeable only with the difference between the excise and the import duty. On the landing of the salt in the Madras Presidency, the Collector required the respondents to pay the difference, thirteen annas per maund, between the excise already paid and the import duty leviable under the Act of 1877, and the respondents, having complied with the Collector's requirements in order to obtain possession of the salt, instituted the suit to recover the sums they had been compelled to pay. One of the pleas raised by the defendant was that the Court had no jurisdiction to entertain the suit. This plea was upheld and the suit was dismissed. On appeal, the learned Judges held (p. 273):
“Where an act complained of is professedly done under the sanction of Municipal law, and in the exercise of powers conferred by that law, the fact that it is done by the sovereign power and is not an act which could possibly be done by a private individual, does not oust the jurisdiction of the civil courts”.
37. At page 283 it was pointed out:
“…In the case before us, the demand of which the respondents complained was levied by the Collector acting as he believed under the authority of municipal law”.
38. In my view, the dictum laid down by the Madras High Court is applicable to the facts of the present case. In the present case, the act is purported to be done under the authority of ss. 150 and 154 of the Land Revenue Code, but it is found that the act is not only illegal but unconstitutional.
39. The result is, the appeal succeeds and is allowed with costs throughout. The plaintiff's suit is decreed against all the defendants. Defendants Nos. 5, 7 and 9 are not liable in their individual capacities.
40. Appeal allowed.