State of Rajasthan v. Rikhabchand Dhariwal — 1960 DIGILAW 29 (RAJ)

Ranawat, J.—This is an appeal by the State of Rajasthan from the judgment and decree of the Civil Judge, Kotah, dated the 15th of December, 1952 for an amount of Rs. 3,400/- against the State of Rajasthan in a suit filed by Mr. Rikhabchand Dhariwal for compensation for false imprisonment. The respondent, Rikhabchand Dhariwal filed cross-objections and claimed an amount of Rs 1,600/-- which was disallowed by the lower court. 2. The appeal came up for hearing before a Single Judge of this Court who has referred it in a Division Bench, as important questions of law were involved in it. 3. The plaintiff is Shri Rikhabchand Dhariwal, who was a practising Advocate at Kotah. On the 17th of July 1948, under the orders of the then Chief Minister of former Rajasthan, the plaintiff was arrested and detained in the Bundi Central Jail under Sec. 3(l)(b) of the Rajasthan Public Safety Ordinance ( No. IX of 1948 ), hereinafter referred to as the Ordinance—A habeas corpus application was filed by his brother for his release and the Bench of the former Rajasthan High Court, sitting at Kotah, ordered the release of the plaintiff on the 14th of August 1948. He was consequently released, but before he could get out of the outer gate of the jail, he was again arrested under a warrant of detention issued by the Commissioner, Kotah Division under the same provision of the Ordinance. Again, a habeas corpus application was presented for his release and by the order dated the 26th of August 1948, he was again released by the same Bench of the High Court. 4. The plaintiff alleged that both of his detentions were illegal, wrongful and mala fide and claimed a sum of Rs. 100/- as damages for his first detention and Rs. 5,000/- for the second, making a total of Rs. 5,1000/-. 5. The present State of Rajasthan, which is the successor of the former United State of Rajasthan, contested the suit. It was denied that the detentions were illegal, wrongful or mala fide. It was also pleaded that the suit was barred by limitation and no liability could be laid on the defendant for the Commissioners order of detention. It was also contended that the suit was barred by section 44 of the Ordinance, and that the damages claimed were excessive. 6. It was also pleaded that the suit was barred by limitation and no liability could be laid on the defendant for the Commissioners order of detention. It was also contended that the suit was barred by section 44 of the Ordinance, and that the damages claimed were excessive. 6. The learned Civil Judge framed the following issues :— (1) Whether the claims for damages for both the detentions are respectively within limitation ? (2) Whether the two detentions of the plaintiff in question were wrongful and not made in good faith or either of them was such? (3) Whether the suit is barred under section 44 of the Rajasthan Public Safety Ordinance (No. IX of 1948) ? (4) Whether the defendant is not liable to pay damages for the Commissioners order dated 14.8.48 ? (5) Whether both the detentions of the plaintiff amount to "Acts of State" and the plaintiffs suit is not maintainable ? (6) Whether the plaintiffs notice is invalid ? (7) What would be the amount of damages that the plaintiff is entitled to recover for his professional loss, mental worry, physical inconvenience, loss of reputation, and costs of habeas corpus petitions ? (8) To what relief is the plaintiff entitled ? 7. Issues Nos. 1, 3, 5 and 6 were tried as preliminary issues by Mr. Bhagchand Soni, who held that the claim of the plaintiff for damages in respect of his second detention was not barred by Article 19 of Limitation Act, even though his claim for damages for the first detention was so barred. As regards issue No. 3, he held that the suit was not barred by Section 44 as the State" Government could not be included in the term "person" used in section 44 of the Ordinance. In respect of issue No. 5 and 6, he held that the detention of the plaintiff was not an act of State and that the notice under section 80 of the Civil Procedure Code was valid. Mr. Upadhyay, who succeeded Mr. Soni as Civil Judge, Kotah, tried the remaining issues. Mr. Upadhyay held that both the detentions of the plaintiff were wrongful and the defendant, the State of Rajasthan, failed to prove lawful justification for the same. As regards issue No. 4, he held that the State was liable to pay damages even though the order of wrongful detention was made by the Commissioner. Mr. Upadhyay held that both the detentions of the plaintiff were wrongful and the defendant, the State of Rajasthan, failed to prove lawful justification for the same. As regards issue No. 4, he held that the State was liable to pay damages even though the order of wrongful detention was made by the Commissioner. As regards the amount of compensation, the learned Judge held that the amounts claimed by the plaintiff were not unreasonable except the sum of Rs. 1,600/-for loss of reputation. The reasoning that weighed with the learned Judge was that the detention of the plaintiff was not punitive and he cannot, therefore, be held to have suffered in reputation on account of his preventive detention under the Ordinance. He therefore, allowed a claim of Rs 3,400/- only. 8. In the appeal, the learned counsel for the State has urged the following points: — (1) That no suit for compensation in tort lay in a civil court against the United State of Rajasthan for the reason that no such suit lay against the State of Kotah or against the first United State of Rajasthan. The common law rule that the sovereign cannot be sued in his own court without his consent, was relied upon in this connection (2) That the Commissioner, under whose orders the plaintiff was detained, was not impleaded as a party to the suit and the claim of the plaintiff against the State was, therefore, not maintainable. (3) That the act of the Commissioner in ordering detention of the plaintiff was not ratified by the State and the State was, therefore, not liable. (4) That the second United State of Rajasthan formed on the 8th of April 1949 was not liable to pay liabilities of the predecessor State, namely the first United State of Rajasthan, unless those liabilities could be shown to have been undertaken by it. Reference was made in this behalf to the decision of the Supreme Court in M/s. Dalmia Dadri Cement Co. Ltd. V. Commissioner of Income-tax (1). 9. The learned counsel of the State also raised objections against the findings of the lower court on all the issues except issue No. 6. 10. Reference was made in this behalf to the decision of the Supreme Court in M/s. Dalmia Dadri Cement Co. Ltd. V. Commissioner of Income-tax (1). 9. The learned counsel of the State also raised objections against the findings of the lower court on all the issues except issue No. 6. 10. It may be noted here that the parties fought the case in the lower court on the assumption that the liability of the United State of Rajasthan was exactly the same as that of the Union of India or the States which formed part of British India before Independence. Both the parties at first argued the case on the very same assumption before this Court as well, but in course of their arguments they realised that the said assumption was erroneous and therefore reverted to the correct position in law applicable to the case. We may here refer to the political changes that brought about the formation of the State of Rajasthan after Independence. 11. The State of Kotah was an Indian State before Independence. An Indian State has been defined by the Government of India Act, 1935 as including any territory......... belonging to or under the suzerainty of a Ruler, who is under the suzerainty of His Majesty and not being part of British India The Ruler of Kotah enjoyed or exercised as belonging to him any of the functions and attributes of internal sovereignty duly recognised by the paramount power. (vide White Paper on Indian States Page 17 para 28). The Ruler of Kotah, being in the position of a sovereign, could not be sued in his own courts without his consent. 12. The State of Kotah acceded to the Dominion of India under sec. 6 of the Government of India Act, 1935. Thereafter, the State of Kotah together with some other States formed a Union on 25th of March 1948, and when Udaipur State agreed to join the Union, the United State of Rajasthan was inaugurated on the 28th of April 1948 by Pt. Nehru and a Covenant was signed by the Rulers of all the States who joined that Union. It was in the time of the first United State of Rajasthan that the petitioner was detained under sec. Nehru and a Covenant was signed by the Rulers of all the States who joined that Union. It was in the time of the first United State of Rajasthan that the petitioner was detained under sec. 3 of the Ordinance, at first on the 17th July 48 under an order of the Chief Minister of Rajasthan and a second time on the l4th of August 1948 under an order passed by the Commissioner of Kotah Division. Sec. 176 of the Government of India Act, 1935 which applied to the Dominion of India and its Provinces was not applicable to the Indian States which acceded to the Dominion of India under Sec. 6 of the Government of India Act, 1935 and the position of the United State of Rajasthan remained at par with such Indian States in that behalf till the 26th of January 1950, when the Constitution of India came into force. Thus the position of the United State of Rajasthan to sue and be sued stood on a different footing from that of the Dominion of India or its Provinces. We may in this connection refer to a decision of this Court in Mst. Vidyawati vs. Lokumal (2) which was decided on the assumption that the position of the State of Rajasthan was at par with that of the Union of India or the States which formed part of British India before Independence. That suit appears to have been contested by both the parties on the erroneous belief that the position of the State of Rajasthan was the same as that of any other State in India which formed part of British India before Independence. That suit was instituted after the coming into force of the Constitution and Art. 300 of the Constitution was applicable, which lays down as follows:— "300. That suit was instituted after the coming into force of the Constitution and Art. 300 of the Constitution was applicable, which lays down as follows:— "300. (1) The Government of India may sue or be sued by the name of the Union of India ahd the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted." Under Art. 300, the position of the States which formed part of British India before Independence and that of the Union of India remained the same as it was under section 176 of the Government of India Act, 1935, sec. 32 of the Government of India Act, 1919 and sec. 65 of the Government of India Act, 1858. In short, their position in this behalf remained the same as that of the East India Company before 1858. Suits could be filed against the East India Company in matters in which no suit lay under the common law of England against the Crown. The position in this connection of an Indian State, however, is different for the reason that sec. 176 of the Government of India Act, 1935 arid the corresponding sections of the earlier Government of India Acts did not apply to, them. The United State of Rajasthan could sue and be sued under Article 300 of the Constitution in the like cases as it might have sued or been sued if the Constitution had not come into force. Thus the position of the State of Rajasthan to sue and be sued cannot be determined on the basis of the position of the East India Company before the year 1858 and the authorities which were relied upon by this Court in Vidywatis case cannot afford any guidance in the matter. In this view of the legal position, with due respect to the learned Judges who decided Vidyawatis case, we may note that it was not dealt with properly in the light of the law applicable to it. In this view of the legal position, with due respect to the learned Judges who decided Vidyawatis case, we may note that it was not dealt with properly in the light of the law applicable to it. However, the final conclusions arrived at in that case appear to be not incorrect. The case arose in the territories of the former United State of Udaipur which formed part of the former United State of Rajasthan. The provisions of sec. 19 of Ordinance No 1 of 1948 of the former United State of Rajasthan would be applicable to the facts and circumstances of that case. The liability of being sued of the State of Rajasthan for purposes of that case would be governed by Art. 300 read with sec. 3 of the Rajasthan Administration Ordinance (No. 1 of 1949) and sec. 17 of the United State of Rajasthan Administration Ordinance, (No. 1 of 1948). The United State of Rajasthan, after it was formed, promulgated the United State of Rajasthan Administration Ordinance (No. 1 of 1948) on the 28th of April 1948, sec. 17(1) of which is as follows:— "The Government of the United State of Rajasthan may sue or be sued by the name of the Government of the United State of Rajasthan through the Chief Secretary or in such other manner as may be directed by the said Government." The language of sec. 17 of Ordinance No. 1 of 1948 is similar to the provision of Art. 300 of the Constitution. It is an established principle of jurisprudence in all civilised nations that a sovereign State cannot be sued in its own courts or in any other without its consent and permission; but it may, if it thinks fit,waive this privilege and permit itself to be made a defendant in a suit by individuals or by another State and as this permission is altogether voluntary on the part of a sovereign, it follows that it may prescribe the terms and conditions on which it may consent to be sued and the manner in which a suit may be conducted and may withdraw its consent whenever it may think that it is in the public interest to do so. This consent may be found in the Constitution of the State itself or in the laws enacted by it or even in the executive orders issued by it. This consent may be found in the Constitution of the State itself or in the laws enacted by it or even in the executive orders issued by it. Sec. 17 of Ordinance No. 1 of 1948, in our opinion, contains a specific provision about the consent of the United State of Rajasthan for being sued in its own courts. In this provision, unlike Art. 300, no limitation whatsoever has been provided as regards the nature of the suits which might be brought against the State. The learned counsel for the State contended that the provision of Sec. 17 of Ordinance No. 1 of 1948 is merely procedural and it does not imply a consent on the part of the State to being sued in its own courts. We are unable to accept this contention. The language of Sec. 17 (1) of the Ordinance is similar to that of Art. 300 which admittedly contains a specific provision about consent of the State to being sued in its own courts. Reference was made by the learned counsel to sec. 79 and 80 of the Civil Procedure Code in order to show that the provision of Sec. 17 of the Ordinance was in the nature of those sections and was consequently a procedural one. Sec. 79 and 80 of the Civil Procedure Code runs as follows : — "79. Reference was made by the learned counsel to sec. 79 and 80 of the Civil Procedure Code in order to show that the provision of Sec. 17 of the Ordinance was in the nature of those sections and was consequently a procedural one. Sec. 79 and 80 of the Civil Procedure Code runs as follows : — "79. In a suit by or against the Government the authority to be named as plaintiff or defendants as the case may be, shall be;— (a) in the case of a suit by or against the Central Government, the Union of India, and (b) in the case of a suit by or against a State,Government, the State." "80, No suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of— (a) in the case of a suit against the Central Government except where it relates to a railway, a Secretary to that Government; (b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway; (c) in the case of a suit against a State Government, a Secretary to that Government or the Collector of the District; and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been delivered or left." It would be noticed that the language of Sec. 79 and 80 refers to procedure and procedure alone. The language of Sec. 17 of the Ordinance cannot be considered to be similar to that of Sec. 79 and 80 of the Civil Procedure Code. Sec. 17 also makes a provision for the name in which the Government of the United State of Rajasthan was to be sued and the officer through whom it was to be so sued. This part alone of sec. 17 may be regarded as procedural. This, however, does not detract from the substantive provision of Sec. 17 regarding consent of the State to being sued. This part alone of sec. 17 may be regarded as procedural. This, however, does not detract from the substantive provision of Sec. 17 regarding consent of the State to being sued. We may also refer to the liability of the Kotah State of being sued in its on courts. In "Hidayat Gair Mansockh Shuda Seege Divni amended up to the year 1914, published under orders of Mehkma Khas Kotah provides in Hidayat No. 22 that whenever it is deemed necessary to implead the State or any one of its Departments as a defendant in a civil suit, sanction of Darbar should first be obtained. Thus it is clear that no suit could be filed against the Kotah State in its own courts without the sanction of Darbar till then. "Hidayat Gair Man Sookh Shuda Seege Diwani" amended up to the 30th of September 1930 substitutes the name of Mehkama Khas in place of that of Darbar which appeared in Hidayat No. 22 of the year 1914. In the year 1940 Civil Procedure Code of 1908 was made applicable to the Kotah State under a notification issued by the Ruler. Sec. 79 and 80 of the British Indian Civil Procedure Code were included in it mutatis mutandis. The provision of Hidayat 22, however, continued in force even though the Civil Procedure Code had come into force. By notification of Mehkma Khas Kotah dated the 26th of November, 1947 which was published in the Kotah States Gazette of the l6th of December 1947, Hidayat No. 22 was repealed and the following provision was substituted in its place. "Whenever it is deemed necessary to implead the State or any one of its Departments as a defendant in a civil suit,, it shall be mandatory to comply with the provision of sec. 80 of the Civil Procedure Code." The notification of Mehkma Khas referred to above is significant in so far as the consent of Mekma Khas for filing a suit against the Kotah State or any one of its departments was dispensed with. Thereafter suits could be filed against the State or its departments after serving a notice under sec. 80 of the Civil Procedure Code without obtaining permission of the Darbar or Mehkmakhas. The Administration Report of Kotah State published under the authority of the State Government for the year from 1st October. Thereafter suits could be filed against the State or its departments after serving a notice under sec. 80 of the Civil Procedure Code without obtaining permission of the Darbar or Mehkmakhas. The Administration Report of Kotah State published under the authority of the State Government for the year from 1st October. 1938 to 30th September 1939 described Mehkma Khas as consisting of two Members who conducted the Administration under direction of His Highness the Maharao Sahib Bahadur of Kotah. The laws in force in Kotah State were continued by sec. 3 of Ordinance No. 1. Thus the position that prevailed in Kotah State before the formation of the United State of Rajasthan in this behalf was continued by ordinance No. 1. By the provision of sec. 17 of Ordinance No.l of 1948 the same position was reiterated and extended throughout the territories of the United State of Rajasthan. 13. As regards the second point, the learned counsel for the State has not referred to any authority in support of his contention. It may be noted that there is no provision of any law under which it may be necessary for the plaintiff to implead a servant as one of the defendants even when he may not desire to get any relief against him in a suit against the master. The argument of the learned counsel has no substance in it. It is open to the plaintiff to sue the servant and the master both or only one of them. 14. The learned counsel for the State referred to the decision of the Supreme Court in Dalmia Dadri Cement Companys case (J) and contended that it was hot proved by the plaintiff that the United State of Rajasthan, against which the suit was filed, undertook the liability of the former United State of Rajasthan in this behalf and no decree, therefore, could be passed against the defendant. We may refer to para 6 of the plaint wherein it was stated that the present State of Rajasthan was liable for the acts of the former United State of Rajasthan and its officers. In reply to para 6 of the plaint it was mentioned in the written statement filed on behalf of the defendant that "In para 6 of the plaint it is not admitted that the Government was liable for the acts of its servants". In reply to para 6 of the plaint it was mentioned in the written statement filed on behalf of the defendant that "In para 6 of the plaint it is not admitted that the Government was liable for the acts of its servants". In view of the reply filed by the defendant to para 6, it is evident that the Government admitted that it was liable if the former United State of Rajasthan was liable. All it disputed was that the State was not liable for the torts committed by its servants. The State is thus debarred from raising this question in the present appeal. Admission of the State which is implied in the pleadings cannot be disowned by the State at this stage. 15. The former United State of Rajasthan was formed on 28th April, 1948. At that time there were two political parties in Kotah, each of which sought affiliation with the State Peoples Conference. Shri Abhinna Hari was president of one of these parties. His party was styled as "Prajamandal" and the other party was named as Shri Prajamandal. The plaintiff was Secretary of Shri Prajmandal. Abhinna Hari was made a Minister in the Government of the former United State of Rajasthan. The evidence of the defendant shows that this was not liked by the members of the Shri Prajamandal party Who started an agitation against the Government on the question of rising food prices. Shri Baya who was also a Minister in the Government of the former United State of Rajasthan visited Kotah sometime in June 1948 and the evidence of Shri Ganesh Singh D. W. 6 is that a demonstration was made in front of the guest house where the Minister was putting up at that time and when Mr. Baya came out of the house, he was surrounded by the demonstrators and the police formed a cordon and extricated him and took him to a safe position. On the 8th of July, Abhinna Hari paid a visit to Kotah and when he was proceeding in a car in front of the Lal Kothi, a crowd assembled and surrounded his car. The evidence of Somnath D.W. 1 is that the people in the crowd cried that Abhinna Hari be pulled out of the car and beaten. On the 8th of July, Abhinna Hari paid a visit to Kotah and when he was proceeding in a car in front of the Lal Kothi, a crowd assembled and surrounded his car. The evidence of Somnath D.W. 1 is that the people in the crowd cried that Abhinna Hari be pulled out of the car and beaten. He has also stated that at Gandhi Bhawan when the Minister was going to address a meeting, the lights were switched off and the people cried out that Abhinna Hari be beaten. However, the evidence of Somnath does not find support from the statements of Brij Mohanlal D.W. 1, Kishan Singh D.W. 2, Harish Chandra D. W. 3, and Parmanand, District Magistrate D. W. 9, as regards the fact of the people crying out both in front of Lal Kothi and at Gandhi Bhawan for beating or mishandling Shri Abhinna Hari. The statement of Somnath on this point cannot be believed. Somnath has also stated that he got down from his motor cycle and removed the crowd by pushing them with his hands. Had the crowd any intention to mishandle or beat Shri Abhinna Hari, it would not have been possible for Somnath to control them single handed by pushing them aside. The number of the crowd is stated to be more than 500. These circumstances further show that the crowd was nonviolent at that time. The evidence of the witnesses referred to above proves that the people at Kotah were agitating and holding demonstrations on the question of rising food prices and they surrounded Mr. Baya sometime in June and Mr. Abhinna Hari on the 8th of July 1948, and when Shri Abhinna Hari wanted to address the meeting at Gandhi Bhawan, they switched off the lights and did not permit him to speak. The police made a cordon and removed him from Gandhi Bhawan under its protection. The District Magistrate promulgated an order under sec. 144 of the Criminal Procedure Code on the 8th of July 1948 which continued in force for about a month. The evidence of Shri Parmanand D.W. 9, who was District Magistrate, shows that the crowd, after surrounding the car of Shri Abhinna Hari, attacked an ice candy factory by throwing stones and broke its glass panes. 144 of the Criminal Procedure Code on the 8th of July 1948 which continued in force for about a month. The evidence of Shri Parmanand D.W. 9, who was District Magistrate, shows that the crowd, after surrounding the car of Shri Abhinna Hari, attacked an ice candy factory by throwing stones and broke its glass panes. The crowd was under the impression that Nathulal Jain and Vimal Kumar, who were members of Prajamandal Party, had taken shelter in the Factory and the crowd exhibited its fury against them in that manner. The witness further stated that the crowd also attacked the house of Som Nath, Traffic Inspector D.W. 8 and threw stones at his house and his eye was thereby injured by a broken glass pane. Harishchandra D.W. 3 has also given evidence as regards the behaviour of the crowd both at the Soda Water Factory and at the house of Somnath, as stated by Parmanand. Ganesh Singh D. W. 6, who was Superintendent of Police, has stated that the Chief Minister visited Kotah and in view of the disturbed political situation he issued warrants under sec. 3 of the Public Safety Ordinance for the arrest of the leaders of Shri Prajamandal Party including the plaintiff on the 13th of July 1948. The Public Safety Ordinance (No. 9 of 1948) which received the assent of the Rajpramukh on 13th June 1948 was published in the Gazette of the 12th of July 1948, when it came into force. Action under the Ordinance was taken on the 13th July, as mentioned above. 16. It is significant that the evidence produced by the defendant does not allege that the plaintiff was in any manner responsible for inciting the people to commit violence. The evidence against the plaintiff is that he addressed a few meetings that were convened at Kotah in connection with the rising food prices. Kishansingh D.W.2, who took notes of speeches at such meetings, has stated that the plaintiff in his speech of the 14th of June 1948 said that the position of food was deteriorating and that the Government was not taking any action to set it right and on the other hand, 600 bags of grain were exported on the pretext that is was unfit for local consumption. The witness also stated that in his speech of 24th June 1948, the plaintiff said that the Kotah Government could solve the problem of food, but the State of Rajasthan could not deal with it. Brij Mohan Lal D.W. 6, who is also a shorthand reporter has not made any specific statement as to what was said by the plaintiff in his speeches at the meetings. Harishchandra D.W. 3, who is a sub-inspector of Police and who has said that he attended two or three meetings addressed by the plaintiff has not been able to say as to what was said by him. He said that he had stated about the plaintiff inciting people to commit violence from the result that had followed and he could not say anything specifically as to what was said by the plaintiff at those meetings. Ganesh Singh, superintendent of Police, and Parmanand, District Magistrate, have also not stated that the plaintiff made any objectionable speeches. The plaintiff, according to Brij Mohan Lal D.W. 1 was at the rear end of the crowd and did not take any part in stopping the car or other illegal activities of the crowd. No report was made against him in connection with the incident that took place in front of Lal Kothi on that day. Reports were made against a number of other persons who were there in connection with that incident and a number of them were prosecuted. The witness has also stated that the plaintiff was not present in the meeting at Gandhi Bhawan on the 8rh of July 1948 in the evening. ¦ According to Harishchandra, the plaintiff was not present in the crowd which attacked the house of Somnath. There is no evidence that he was in the crowd which attacked the sugar candy factory or soda water factory. In short, the evidence on the record shows that the plaintiff did not make any objectionable speeches inciting the people to violence nor did he take any part in the violent activities which took place upto 8th July. After the 8th of July, when an order under Sec. 144 of the Criminal Procedure Code was promulgated, no violent activities took place in Kotah. After the 8th of July, when an order under Sec. 144 of the Criminal Procedure Code was promulgated, no violent activities took place in Kotah. The plaintiff admittedly left Kotah on the 12th of July 1948 for Delhi and he returned on the 17th July when he was arrested under a warrant that had been issued against him on the 13th July 1948 under the, signatures of the Chief Minister of Rajasthan. He remained under detention in pursuance of that warrant upto the 14th of August 1948, when he was released by the order of the then High Court under Sec. 491 of the Criminal Procedure Code. As soon as the plaintiff was released from Jail, he was rearrested under a warrant issued by the Commissioner of . Kotah on the 14th of August 1948. The Commissioner of Kotah issued this warrant under Sec. 3 of the| Public Safety Ordinance under authority delegated to him by the Government under Sec. 43 of the Ordinance on the 10th of August 1948 by Notification No. 233 C. B/48. The Commissioner issued the said warrant, no sooner the order of release was passed by the High Court. A perusal of the warrant of arrest Ex. A-l shows that all the three grounds mentioned in sec 3(1) of the Ordinance, namely preventing the plaintiff from acting in any manner prejudicial to (1) public safety, (2) the maintenance of public order and (3) Governments relation with the Government of India, were incorporated in it. Mr. Rathi, who was the Commissioner of Kotah and who issued the warrant Ex. A-4 was not produced as a witness on behalf of the defendant, even though he was available, being in service when the evidence in the suit was recorded. The only evidence on record which can throw light as regards the material that was before the Commissioner for issuing the warrant Ex. A-l consists of the statements of GaneshSingh D.W.6 and Parmanand. The statement of Parmanand is inconsistent with the statement of Ganesh Singh in this behalf. Shri Ganesh Singh has stated that the order of release was made by the High Court at about 4-30 or 5 p. m. and he went and saw the Commissioner immediately thereafter in his office. He did not take any written reports with him and he had not received any reports against the plaintiff during those days, from the C.I.D. reporters. He did not take any written reports with him and he had not received any reports against the plaintiff during those days, from the C.I.D. reporters. The witness has also stated that he told the Commissioner that the public mind was ill agitated and Independence Day celebrations were to take place on the day following and a Ministers visit was also to take place at Kotah on that occasion, and if the leaders of Shri Prajamandal, who were to be released under orders of the High Court, returned to their houses, the situation was likely to get worse. The witness in his cross-examination stated that there was scarcity of leaders at Kotah on account of the detention of the members of Shri Prajamandal Party and on the release of those persons, the people were likely to indulge in violent activities, as they would then have had their leaders with them. The witness was of the opinion that mere presence of the leaders of Shri Prajamandal Party at Kotah amidst the people was likely to disturb the public order. The witness stated that the Commissioner after having talked with him for about 15 or 20 minutes gave orders for re-arrest of the leaders of Shri Prajamandal Party and handed over the warrants to him there and then. He also said that no other officer met the Commissioner at that time. Shri Parmanand, the District Magistrate, D.W.9 on the other hand stated that he went and met the Commissioner at 7 or 7-30 p. m. on the 14th of Aug. 1948 and discussed with him for about 20 or 25 minutes the question of re-arrest of the leaders of Shri Prajamandal Party. The warrants of arrest had already been typed and were lying on the table of the Commissioner at that time. The witness also stated that he discussed with the Commissioner that the situation was still tense and the presence of Shri Prajamandal leaders or their anti-Government activities were likely to excite them, specially when there were celebrations regarding Independence Day on the day following and the Commissioner; thereupon gave an order for the detention. He also stated that the Commissioner saw the police reports and talked to the Superintendent of Police and then passed the said detention order. He also stated that the Commissioner saw the police reports and talked to the Superintendent of Police and then passed the said detention order. As regards the police reports, he further clarified that they were relating to the public reaction during the period of detention of the leaders of Shri Prajamandal Party. On a specific question being put to him in cross-examination, the witness said that he did not remember if any direction had been received from the Government for the rearrest of the leaders of Shri Prajamandal Party in case of their release under orders of the High Court. According to Shri Ganesh Singh, orders for rearrest were passed by the Commissioner in his presence at about 6 p. m. without meeting any other officer, whereas according to Shri Parmanand, those orders were issued after he met the Commissioner at 7 p. m. In addition to this, according to Shri Ganesh Singh, no written reports were placed before the Commissioner and the matter was only orally discussed by him before the orders of re-arrest were made by him; whereas according to Parmanand, the Commissioner had seen the written reports of the police and had discussed the matter with the Superintendent of Police and also with him. The two statements of Shri Parmanand and Shri Ganesh Singh cannot be reconciled. Whichever version is accepted, it is evident that no material was placed before the Commissioner to show that the plaintiff was likely to act in a manner prejudicial to the maintenance of public order or Governments relations with the Government of India. The other evidence that has been placed on the record also does not show that the plaintiff was likely to so act after his release from detention on the 14th August. There was thus no reasonable or probable ground for the Commissioner to be satisfied that the plaintiff was likely to so act in a prejudicial manner. 17. The other evidence that has been placed on the record also does not show that the plaintiff was likely to so act after his release from detention on the 14th August. There was thus no reasonable or probable ground for the Commissioner to be satisfied that the plaintiff was likely to so act in a prejudicial manner. 17. Sec. 44 of the Rajasthan Public Safety Ordinance is as follows:— "No suit prosecution or other proceeding shall lie against any person for anything done in good faith purporting or intended to be done in pursuance of this Ordinance or against any person for any loss or damage caused to or in respect of any property whereof possession has been taken under this Ordinance." The Court below has held that Sec. 44 did not afford protection to the Government for the reason that the Government cannot be included in the definition of the term "person" appearing in sec. 44. "Person" has been defined by sec. 3(34) of the Kotah General Clauses Act (No. XI of 1945) published in the Gazette of 2nd July 1945 as follows :— "Person" shall include any company of association or body of individuals whether incorporated or not:" The General Clauses Act of Kotah is applicable to the interpretation of the Public Safety Ordinance by virtue of sec. 3 of Ordinance No. 1 of 1948. The definition of "person" as per Kotah General Clauses Act is wide enough to include Government also. In State of Uttar Pradesh vs. Kanhaiyalal Makundlal Sarraf (3), the Government has been held to be included in the definition of the term "person" with reference to sec. 3(42) of the Central General Clauses Act. The definition of "person" as per Kotah General Clauses Act is exactly the same as given in sec. 3(4?) of the Central General Clauses Act. The court below was not right in holding that the Government was not included in the term "person" in sec. 44 of the Ordinance. Moreover, if the Commissioner is protected under sec, 44, the vicarious liability of the State would also not arise for the simple reason that such liability is coextensive with the liability incurred by the servant. In order to find out whether sec. 44 can be pleaded a bar to the suit, it is necessary to examine the question of good faith of the Commissioner in passing the impugned order. In order to find out whether sec. 44 can be pleaded a bar to the suit, it is necessary to examine the question of good faith of the Commissioner in passing the impugned order. "Good faith" has not been defined in the Ordinance itself, nor has it been defined by the Kotah General Clauses Act. It has been defined by sec. 3(22) of the Central General Clauses Act as follows :— . "A thing shall be dee med to be done in "good faith" where it is in fact done honestly, whether it is done negligently or not." "Good faith" has also been defined in sec. 52 of the Indian Penal Code as follows :— "Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention. Though the Central General Clauses Act and the definition given in the Indian Penal Code do not directly apply in the matter of interpretation of the term appearing in sec. 44 of the Public Safety Ordinance, the meaning of the term can be gathered with reference to those definitions. The literal meaning of the term is also the same as has been given in the definition of the term in the Central General Clauses Act. "Good faith" has been defined in the General Clauses Act with reference to the use of the term "honestly". If a thing is done honestly, it is deemed to be done in good faith, notwithstanding some negligence. The term "honestly" came up for interpretation In re second East Dulwich 745th Starr-Bowkett Building Society{4) and Kekewico J. observed as follows :— "The Legislature has passed the Judicial Trustees Act, 1896, excusing trustees for breach of trust, but that Act does not apply here. According to the Act (sec. 3 repealed; see now Trustee Act, 1925, set. 61) a trustee, if he is to be excused, must act honestly and reasonably. The word honest is used in many senses. In one sense a trustee is honest if he has not done anything dishonest. Now, there is nothing of that sort urged against Streeter; there is no suggestion that he has done anything dishonest. He has paid the £391 16 s. 4 d. which was found to be due to the society from Pearce, and is so far acquitted of dishonesty in the usual sense of the word. Now, there is nothing of that sort urged against Streeter; there is no suggestion that he has done anything dishonest. He has paid the £391 16 s. 4 d. which was found to be due to the society from Pearce, and is so far acquitted of dishonesty in the usual sense of the word. But in another sense he is not honest. It seems to me that a mart who accepts such a trusteeship, and does nothing, swallows wholesale what is said by his cotrustee, never asks for explanation, and accepts flimsy explanations, is dishonest. (Vide Words and Phrases Judicially Defined Vol. 2 at p.478 by Roland Burrows K.C.). 18. The evidence of both Ganesh Singh and Parmanand as well as other witnesses as discussed above shows that there was no material before the Commissioner to afford even a probable ground for believing that the plaintiff was likely to commit any prejudicial act referred to in sec. 3(l). The Commissioner reproduced the three grounds given in the section itself in his order which also goes to show that he did not apply his mind to the particular circumstances of the case in order to come to the conclusion as to which one of the grounds existed in the instant case. In order that sec. 3 of the Ordinance may be attracted, the Commissioner had to be satisfied that the plaintiff was likely to commit an act prejudicial to the public safety, the maintenance of public order and Governments relations with the Government of India. The Commissioner in the instant case did not care to examine the question whether the plaintiff was likely to do such a prejudicial act. He cannot under these circumstances be said to have acted honestly in a judicial sense. He did not act dishonestly, but that is not enough. The order of the Commissioner, under the circumstances, cannot be taken to have been passed in good faith in the meaning of sec. 44 of the Ordinance. The protection given by sec. 44 would, therefore, be not available to the State for this reason. 19. The case of the petitioner is that the order of his detention was passed by the Commissioner at the instance of the Government for the simple reason that he was a member of Shri Prajamandal Party which was opposed to it. The protection given by sec. 44 would, therefore, be not available to the State for this reason. 19. The case of the petitioner is that the order of his detention was passed by the Commissioner at the instance of the Government for the simple reason that he was a member of Shri Prajamandal Party which was opposed to it. It may be noted here that the first order of detention of the plaintiff was passed by the Chief Minister of the former United State of Rajasthan which was challenged in habeas corpus proceedings in the High Court inter alia on the ground that the order of the Chief Minister was not authenticated as required by law. The Government, while the habeas corpus petition was being heard from day to day, issued the Second Amendment Ordinance of 1948 authorising the Ministers of the Government to authenticate orders passed by it. The Government further delegated the power under sec. 3(1) to the Commissioners by notification of the 10th of August 1948. The purpose of delegating the said power to Commissioners may have been to provide for the eventuality of release of the plaintiff under orders of the High Court. The counsel of the plaintiff put a direct question to Shri Parmanand, the District Magistrate of Kotah in his cross-examination as to whether it was a fact that the Government issued a direction for rearrest of the plaintiff in the eventuality of his being released by the High Court and Shri Parmanand avoided to give a straight answer to the question by saying that he did not remember whether or not any such direction was issued by the Government. These, circumstances may go to raise a suspicion that the Commissioner may have acted under instructions from the Government in issuing warrants of re arrest against the petitioner and others. There is, however, no direct evidence on record to prove positively that the Commissioner acted under orders of the Government. We, therefore, hold that it has not been proved that the Commissioner acted under instructions from the Government. 20. Next it was argued that by delegating its powers to the Commissioner under sec. 43 of the Ordinance, the Government constituted the Commissioner as its agent and it was liable for his acts which were performed within the scope of his employment. 20. Next it was argued that by delegating its powers to the Commissioner under sec. 43 of the Ordinance, the Government constituted the Commissioner as its agent and it was liable for his acts which were performed within the scope of his employment. In the alternative it was argued that the act of the Commissioner in ordering re-arrest of the plaintiff was subsequently ratified by the Government so as to make it liable. It has been contended on behalf of the plaintiff that satisfaction by the Government should be inferred from the fact that (1) the Government opposed the release of the plaintiff in habeas corpus petition and (2) it sanctioned engagement of Shri Kalyanprasad as counsel for this purpose on a fee of Rs. 500/- per day. 21. It may be noted that the delegation of the power to the Commissioner under sec. 43 did not make him an agent of the Government in the ordinary sense of the term for the reason that the Commissioner, after he was clothed with the powers to act under sec. 3, had to exercise his own discretion in the matter. The power delegated was a statutory one and in exercising that power, the Commissioner did not act as an agent of the Government. He acted for himself under the law. 22. The maxim "Respondeat Superior" has no application, nor does the ordinary law relating to principal and agent, apply to such cases. Where a Government officer purports to act under a statutory power conferred upon him, it cannot be said that he acts as an ordinary agent of the State. He is in such cases only discharging a duty imposed upon him by law and not by the will of the Government employing him and, therefore, whatever wrong he does is his own and not that of his employer; the officer performing such a statutory duty is not obeying any command of the State, but that of the law (Vide A. M. Ross vs. Secretary of State (5), Shivabhajan vs. Secretary of State (6) and Merwanjee vs. Secretary of State for India (7)). The contention of the plaintiff that the Commissioner acted as an agent of the Government in ordering rearrest of the plaintiff is, therefore, not well founded. This also disposes of the argument of the learned counsel for the plaintiff regarding ratification by the Government of the act of Commissioner. The contention of the plaintiff that the Commissioner acted as an agent of the Government in ordering rearrest of the plaintiff is, therefore, not well founded. This also disposes of the argument of the learned counsel for the plaintiff regarding ratification by the Government of the act of Commissioner. The Commissioner not being an agent of the Government, his act in ordering the detention of the plaintiff cannot be said to have been performed on behalf of the Government. Government could not,therefote,ratify it even though it may have approved of the action of the Commissioner. 23. The learned counsel of the plaintiff drew our attention to the following observations of the Supreme Court in the State of Bihar vs. Abdul Majid (8):— "As regards torts of its servants in exercise of sovereign powers, the Company was not, and the Crown in India was not, liable unless the act had been ordered or ratified by it." It may be noted that the case of Abdul Majid was for recovery of arrears of salary of a civil servant and the observations referred to above were in the first place obiter in that case and secondly it may be noted that a sovereign act may be performed by a servant of the State in exercise of his executive powers as well as the statutory powers and the observations of their Lordships of the Supreme Court referred to above would apply to the case of the sovereign acts of a servant in executive capacity and not to those done in exercise of statutory functions. 24. As regards the point of limitation, we think the court below has rightly applied Art. 19 of the Limitation Act in holding that the suit for second detention was not barred by law. The contention of the learned counsel for the State was that Art. 2 governs the case of the plaintiff and not Art. 19. Art. 2 and 19 are as follows: — 2. For compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in India. Ninety days. When the act or omission takes place. 19. For compensation for false imprisonment. One year When the imprisonment ends. Art. 2 and 19 are as follows: — 2. For compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in India. Ninety days. When the act or omission takes place. 19. For compensation for false imprisonment. One year When the imprisonment ends. Art. 2 is of a general character and would apply to those cases which come under it and for which there is no other special provision in other articles of the Limitation Act. Art. 19 is specially for cases relating to false imprisonment. The case of the plaintiff is for damages for false imprisonment and Art. 19, therefore, particularly applies to it. The maxim "generalia speciality us non derogant"—a general provision must yield to a special provision is applicable in this connection. 25. In Rohini Kumar Chakrabarty vs. Niaz Mohammad Khan (9), Art. 23 of the Limitation Act was held applicable to a case of malicious prosecution and not Art. 2 for the reason that Art. 23 was a specific Article and it governed the case in preference to Art. 2. 26. The learned counsel of the State has referred to the decision in Shariful Hasan vs. Lachmi Narain (10). In that case a Sub-Inspector of Police arrested the plaintiff on account of malice and sent him after arrest to Agra under handcuffs. Art. 2 was held applicable to the case and not Art. 36 for the reason that Art. 2 was more special when compared to the residuary Art. 36. The learned Judges did not consider the application of Art. 19 and the judgment in the case is, therefore, not helpful. 27. The second authority referred to by the learned counsel for the State is Jaques vs. Narendra Lal Das (11). In that case a police officer caused hurt to Satyagrahis who marched in a procession in a street. It was held that Art. 2 applied to the case. There is no other special article regarding compensation for wrongful restraint or hurt. The decision in Narendra Lal Dass case (12) is not helpful for this reason. Instant case, as noted above, Art. 19 is a special provision and it would, therefore, apply to the plaintiffs suit in preference to Art. 2 which is of a general character. . . 28. The decision in Narendra Lal Dass case (12) is not helpful for this reason. Instant case, as noted above, Art. 19 is a special provision and it would, therefore, apply to the plaintiffs suit in preference to Art. 2 which is of a general character. . . 28. The claim of the plaintiff as regards damages for his first detention is barred under Art. 19 for the reason that the suit was filed more than one year after the cause of action arose to the plaintiff in that behalf. His claim for damages in respect of his second detention is within limitation by excluding the period of notice under sec. 80 of the Civil Procedure Code. 29. Coming now to the question of quantum of damages, the following sums have been claimed for the second detention:— (1) Rs. 803/- for professional loss. (2) Rs. 2,000/- for mental worry. (3) Rs. 500/- for physical discomfort. (4) Rs. 100/- as expenses for prosecuting second habeas corpus petition. (5) Rs. 1,600/- for loss of reputation. 30. The trial court decreed the first four items in full and disallowed fifth item for the reason that detention under Public Safety Ordinance does not entail loss of reputation. The learned counsel for the plaintiff has urged that the amount of Rs. 1,600/- that has been disallowed is recoverable by the plaintiff, for, the detention of the plaintiff did cause loss of reputation to the plaintiff. The plaintiff produced evidence to prove that his professional income 6n an average was Rs. 800/- per month. He has also proved the expense of Rs. 100/- in relation to his habeas corpus petition against the second detention. Having regard to the status of the plaintiff, the court below held that the amounts claimed by him on all the items except for reputation were reasonable. In an action for false imprisonment, the amount of damages is purely in the discretion of the Judge and his discretion is not to be lightly interfered with in appeal. In our opinion, the discretion exercised by the trial court in this behalf cannot be regarded to be unreasonable. 31. However, as regards the amount of Rs. 1,600/- claimed by the plaintiff for loss of reputation, we think the court below was not right in holding that preventive detention does not entail loss of reputation. In our opinion, the discretion exercised by the trial court in this behalf cannot be regarded to be unreasonable. 31. However, as regards the amount of Rs. 1,600/- claimed by the plaintiff for loss of reputation, we think the court below was not right in holding that preventive detention does not entail loss of reputation. Ordinarily the people presume that preventive detention is ordered only in connection with illegal activities and the reputation of a person who is so detained does suffer. The amount of Rs. 1,600/- claimed in this behalf by the plaintiff is also reasonable for loss of his reputation. 32. In view of our finding discussed above that the Government is not liable for the act of the Commissioner in ordering wrongful detention of the plaintiff, we allow the appeal and dismiss the suit. In the circumstances of the case, we direct that the parties shall bear their own costs throughout.