Decided on April 23,1965

CHHOTEY LAL Respondents

Referred Judgements :-


Cited Judgements :-



Dhavan, J. - (1.)THIS is an appeal by the State of Uttar Pradesh from the concurrent decisions of the Courts below decreeing the plaintiff-respondent's suit for recovery of Rs. 1000 as compensation for 16 bags of sugar (shakkar) which were seized by a police official in the employ of the appellant State and never returned to the plaintiff The facts as alleged by the plaintiff are these. On 17-1-1947 the plaintiff Chhotey Lal was transporting 67 bags of shakkar and two of bhur from Shikarpur to Raghupura in a motor truck When the truck reached the police station Kakore it was stopped by the police. They arrested the plaintiff and seized all the bags on the alleged ground that 16 of them contained khandsari sugar of which the movement was banned under the U. P. Control of Supplies (Temporary power) Ordinance, II of 1946. The plaintiff, protested and said that the 16 bags contained not khandsari but shakkar the movement of which was not banned. The plaintiff's version is that all 67 bags were seized by the police and given in the custody of various persons, the 16 bags in dispute being entrusted to one Ram Chandra who is the third defendant in the suit and the third respondent in this appeal. The plaintiff was prosecuted under Section 7 of the Essential Supplies (Temporary Powers) Act, but acquitted. He then made several applications for the return of his goods but to no effect. He then filed the present suit for the return of the 16 bags, or in the alternative, for Rs. 1000 at the rate of Rs. 25 per bag The plaintiff contended that his bags of sugar were illegally seized by the station officer of Kakora who was a servant of the State of Uttar Pradesh and this wrongful act, according to him, was done in the course of his service and within the scope of his duties He also contended that the loss suffered by him was the natural consequence of the action of the Station officer for which the State and the Officer were both liable. The plaintiff also impleaded as co-defendant Ram Chandra who, according to him, was given the custody of the bags in dispute. All the three defendants resisted the suit. The Station Officer alleged in his written statement that he had acted bona fide in the discharge of his duties and that his arrest of the plaintiff and the detention of the goods was justified because the plaintiff was caught in the act of transporting 16 bags of Khandsari sugar in contravention of the U. P. Government's order mentioned above. He further pleaded that he had examined the 1ft bags of sugar at the time and ground that they contained Khandasari and not shakkar. He further alleged that he took samples from each bag and had then sent to the chemical examiner under a sealed cover and the latter's report was that the samples were of Khandsari sugar. He also alleged that he did not keep the goods in his custody but entrusted them to various superdars. Lastly, he alleged that he was transferred from Kakore during the pendency of the Criminal proceedings against the plaintiff and was not responsible for the non-return of the goods to the plaintiff after his acquittal. The State of Uttar Pradesh adopted the version of facts given by the Station Officer and denied that the detention of the goods was illegal. In addition they pleaded that they were not liable for any act or omission on the part of the Station Officer who had acted in the exercise of his statutory powers. The third defendant Ram Chandra denied the Station Officer's allegation that the goods had been entrusted to his custody, and alleged that his signature was taken on a blank paper but no goods were entrusted to him. THIS defendant filed a written statement denying his liability but did not appear at the trial and took no further part in the proceedings.
(2.)IT may be noted at this stage that the plaintiff's suit is in respect of 16 bags of sugar, though his case is that not a single bag was returned to him. Learned counsel for the plaintiff respondent stated, on a question from me, that the plaintiff may have brought another action in respect of the remaining bags, but counsel was not aware of such proceedings. The present suit is confined to the recovery of compensation in respect of 16 bags only.
The trial Court disbelieved the version of the defendants and held that the bags in dispute contained sugar and not khandsari. It completely rejected the story of the Station Officer that he examined the bags at the time and found them to contain khandsari of which he took samples and sent them to the Chemical Examiner. It regarded his entire story as a fabrication and commented somewhat severely on his lack of veracity and even hinted that he had manufactured it. It rejected the plea of the State that it was not liable for the wrongful acts of the Station Officer and held that as employer it was vicariously liable for any tortious act of its servants. It believed the plaintiff's version that 16 bags contained sugar which was seized from him but never returned. On these findings it decreed the suit against the State. The suit against the Station Officer was dismissed on the technical ground that the plaintiff had omitted to serve the usual notice under Section 80, C. P. C. on this defendant. It also dismissed the suit against the supurdar Ram Chandra on the ground that it was not established that 16 bags of sugar were entrusted to Ram Chandra as alleged by the police.

The State appealed from this decision. The learned Civil Judge confirmed all the findings of the trial Court and dismissed the appeal. The State has now come to this Court in second appeal.

(3.)SINCE the decision of the lower appellate Court in this case, the Supreme Court delivered two judgments both of which have been cited in this appeal. The first is The State of Rajasthan v. Mst. Vidhyawati. AIR 1962 SC 933 which was decided on 2-2-1962. In this case the Supreme Court held that the State of Rajasthan was liable in damages for the negligent driving of one of its drivers who at the time of the accident was driving rashly and negligently, a jeep car, owned and maintained by the State for the official use of the Collector of the district. The driver at the time of accident was bringing it back from a workshop after repairs, and on the way knocked down a pedestrian who was fatally injured. The Court rejected the plea of the Rajasthan Government that it was not liable for any wrongful act of a State official committed in the exercise of the sovereign powers of the State. This case is relied on by learned counsel for the plaintiff-respondent.
The second is the case of Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh, Civil Appeal No. 106 of 1963 decided by the Supreme Court on 20-9-1964: (reported in AIR 1966 SC 1039). It has not yet been published in any law report, but my attention was drawn to it during the hearing of the appeal when a summary of the judgment of the Supreme Court appeared in a Delhi newspaper, and I adjourned the case to enable the counsel for the State to obtain a certified copy. In this case the Court held that in considering the vicarious liability of the State for the negligent acts of its servants a distinction must be drawn between an act committed ''in the course of an undertaking or employment which is referable to the exercise of sovereign power or to the exercise of delegated sovereign power" and an act ''which is not connected in any manner with the sovereign power of the State at all". The Court laid down the following rule of law. "If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is: was the tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately" based on, the delegation of the sovereign powers of the State to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. The act of the public servant committed by him during the course of his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose."


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