This is an appeal filed by one Hira Lal Jain, the proprietor of Jain Textiles in Agartala, against the judgment and decree in Money Suit No 34 of I960. on the file of the Sub-Judge, Agartala, dismissing the suit without costs filed by him for recovery of Rs. 5,793.81 N. P. made up of Rs. 3,993.81 N. P. being the actual price of the textile goods seized by the Land Customs officials of Tripnra and Rs. 1,800.00 being the interest at 12 per cent per annum towards compensation for the loss, sustained by him, on account of the seizure of I lie goods. 2. The brief facts of the ease which led to the institution of the appeal are as here under: The appellant despatched various descriptions of textile goods, mentioned in the plaint schedule, of the value of Rs. 3,993.81 N P. on 18-5-1956 in a motor truck, bear­ing T. R. L. 177, from Agartala to be delivered to one Dhirendra Kumar Nath in Raniganja bazar within the Sub-Division of Sabroom The goods were sent on credit along with Ext D-12 credit memo, dated 15-5-1956. On 19-5-1956. when the motor truck was proceeding to Raniganja through Udaipur Sub-Division, D W. 2 (Sashadhar Bhattacherjee), who was the second officer of Radhakishorepui Police Station, seized the textiles on suspicion !hat they were being transported to Raniganja for being smuggled to East Pakistan,' as D. W. 2 (Sasnadhar Bhattacherjee) received radiog rain message from the District Magistrate authorising him to seize the textiles under Section 28 (3) of the West Bengal Security Act. On 20-5-1956 lie handed over the goods to D W 3 (Shrj Amarendra Ch. Paul) the then Inspector of Central Excise. The goods were kept in the custody of M/s. Vishnu Agency Ltd. in Agarlala, the Land Customs clearing agent b. On 2-6-1956 there were huge Hoods in Agartala for about 3 days. The goods stored in M/s, Vishnu Agency Ltd. Agartala were inundated with floods. On 11 -6-1956 Dhirendra Kumar Nath filed an application (Ext. D-10) before the Assistant Collector-, Central Excise and Land Customs. Silchar. putting forward his claim to the goods in question and requested him to release (lie same. On 27-6 1956 the appellant also pre­ferred claim to the said goods before the same officer and requested him to release the goods in his favour, so that the goods might not be damaged. (Vide Exl. Silchar. putting forward his claim to the goods in question and requested him to release (lie same. On 27-6 1956 the appellant also pre­ferred claim to the said goods before the same officer and requested him to release the goods in his favour, so that the goods might not be damaged. (Vide Exl. D-ll. wherein the date of 27 6-56 was wrongly mentioned as 27-6-57 by the appellant). 4. On 29-6-1956 Dhirendra Kumai Nath sent au application to the Assistant Collector, Central Excise and Land Customs, Silchar in Agartala giving up his claim of the goods on the ground that he did not pay the price of the same and requested him to release the goods in favour of the appellant. 5. The appellant sent a number of appli­cations to the Assistant Collector. Central Excise and Land Customs, Silchar praying for the release of the goods in his favour. But, the Land Customs department issued a show cause notice on 27-4-1957. The appel­lant was asked to show cause why penalty should not be imposed upon him and why the goods should not be confiscated on the ground that he violated the provisions of Section 5 of the Land Customs Act (Act 19 of 1924), the Sea Customs Act (8 of 1878) and Imports and Exports Control Act of 1947. The appellant sent his explanation on 10-5-1957. But. in the meanwhile, the Cus­toms department issued notices as can be seen from Exts. D-13 dated 29-4-57, D-14 dated 1-5-57 and D-15 dated 20-4-57 and sold away the textiles in open auction for Rs. 805 on 6-5-57. C. The second respondent Collector Central Excise and Land Customs. Shilloug passed an order of adjudication dated 19-8-57 as per Ext. D-4 confiscating the sale proceeds of Rs. 805 in lieu of the textile goods under the provisions of Section 167 of the Sea Customs Act (8 of 1878) read with Section 32 of the Imports and Exports Control Act. 7. The appellant preferred Customs Appeal 77 of 1958 to the Central Board of Revenue. New Delhi, against the order of the second respondent The Central Board of Revenue, New Delhi, allowed the appeal on 28-2-1958 as can be seen from Ext. D5 and set aside the order of the second res­pondent giving benefit of doubt to the ap­pellant and directed that the net sale proceeds of Rs. 805 should be refunded to the appellant. But. D5 and set aside the order of the second res­pondent giving benefit of doubt to the ap­pellant and directed that the net sale proceeds of Rs. 805 should be refunded to the appellant. But. the appellant again submit­ted an application on 19-7-58 under S. 191 of the Sea Customs Act to the Joint Secre­tary. Government of India Ministn of Finance (Department of Revenue). New Delhi for the revision of the order of the Central Board of Revenue, New Delhi dated 28-2-58 and claimed the lull value of the goods including interest. But, the Joint Secretary. Government of India, Ministry of Finance (Department of Revenue), New Delhi, dismissed the revision petition on 10-3-59 (vide Ext. D-6) and con firmed the order of the Central Board of Revenue. New Delhi. The appellant again filed another application to the Joint Secretary to the Government of India. Ministry of Finance. (Department of Revenue). New Delhi, for reconsideration of the order dated 10-3-59. But it was also dismissed on 18-7 59. 8. The appellant filed the suit in the Sub-Court on 9-12-1960 against (i) the Union of India, (ii) the Collector. Central Excise and Land Customs. Shillong and (iii) the Union Territory of Tripura. praying for declaration that the goods were wrong­fully and illegally seized and detained indefinitely for a long time, that they were sold away ultimately for nominal value, that he sustained heavy financial loss and for a decree for a sum of Rs. 5,793-81 nP. comprised of Rs. 3,993.81 N. P. being the actual price of the goods and Rs. 1,800.00 being the interest at 12 per cent per annum, claimed towards compensation. 9. The respondents pleaded, inter alia, that the appellant, in fact, wanted to smuggle the goods into Pakistan, that they were lawfully seized, but that the Central Board of Revenue, New Delhi, gave him only benefit of doubt and passed the order as per Ext. D-5 dated 28-2-1958, that the good is were damaged on account of vis major due to unprecedented and unforeseen floods, that the Customs authorities did not wrong­fully or illegally sell away the goods, that the suit is barred by limitation and that, in any event, the suit is not maintainable (under Article 300 (1) of the Constitution of India). 10. D-5 dated 28-2-1958, that the good is were damaged on account of vis major due to unprecedented and unforeseen floods, that the Customs authorities did not wrong­fully or illegally sell away the goods, that the suit is barred by limitation and that, in any event, the suit is not maintainable (under Article 300 (1) of the Constitution of India). 10. The Sub-Judge framed as many as 20 issues and held that the appellant intend­ed to smuggle the goods into East Pakistan, that the Land Customs department did not act illegally or wrongfully in seizing the goods, that the department was not guilty of negligence in selling the goods for Rupees 805, that the suit was barred by limitation under Article 49 of Schedule I of the repeal­ed Indian Limitation Act (Act 9 of 1908) and that the suit is not maintainable. He, therefore, dismissed the suit, but under the circumstances of the case, without costs. Hence the appeal by the defeated plaintiff. 11. The Points, which were argued in the appeal and which arise for determina­tion, are : (i) whether the seizure and detention of the goods were legal? (ii) whether the auction of the goods held by the Customs department on 6-5-57. for Rs. SOS was valid? (iii) whether the suit is barred by limita­tion? (iv) whether, in any event, the suit is not maintainable by virtue of Article 300 (1) of the Constitution of India? 12. Point (i) : The appellant, as P. W. 1, deposed that he received a letter from Dhirendra Kumar Nath requesting him to despatch the textiles and that, therefore, he sent them in a truck on 18-5-56 with a credit memo, as per D-12, dated 15-5-56. But, he did not produce the letter, said to have been written to him by Shri Dhirendra Kumar Nath. On the other hand, in Ext. D-ll dated 27-6-56 P.W. 1 mentioned that he consigned the goods to Dhirendra Kumar Nath on credit and that he booked the consignment in a forry T. R. L. 177 for delivery of the consign­ment to Dhirendra Kurnar Nath at Raniganja in Sabroom division. as the consignee placed an order for the goods during the Sri Ram Navanii festival through his employee. Vide Para 2 of Ext, D-ll. So, his cane in Ext, D-11 is quite different from his oral evidence in the Court. as the consignee placed an order for the goods during the Sri Ram Navanii festival through his employee. Vide Para 2 of Ext, D-ll. So, his cane in Ext, D-11 is quite different from his oral evidence in the Court. Again, it may be noted that the appellant did not examine Dhireudra Kumar Nath as his witness. He did not produce any license to show that Dhirendra Kumar Nath held any textile license to trade in cloth in Raniganja. The evidence of D. W 4 (Bhupati Raiijan Chakraborty). the then Preventive Officer, Land Customs, is that Dhirendra Kumar Nath had no cloth shop in Raniganja at all, that he was a resident of Sabroom (said to be some miles away from Raniganja) and that Raniganja just abuts East Pakistan border. Ranigauja is said to be a small village. So, there was real suspicion about the bona fides of the appellant in despatch ing the textiles to Raniganja for ostensible delivery to Dhirendra Kumar Nath of Sabroom. It has to be mentioned in this connection that the lower Court went wrong in relying on Ext. D-I statement of Dhirendra Kumar Nath recorded by D. W. 4 (Bhupati Ranjan Chakraborty) the then Preventive Officer, Land Customs. In the absence of the examination of Dhirendra Kumar Nath as a witness, Ext. D-l has no evidentiary value. The Sub-Judge relied on it at more than one place in his judgment and used it against the appellant. This procedure is highly irregular and illegal. He should aot have used it without examining Dhirendra Kumar Nath and giving an oppor­tunity to the appellant to cross-examine him. At any rate, even discarding Ext. D-l, the evidence on record shows that there was suspicion in the conduct of the appellant in despatching the goods to Raniganja, a border village of East Pakistan. 13. There is no dispute that the provi­sions of the Sea Customs Act (Act 8 of 1878) apply even to levy of duties of land Cus­toms under the Land Customs Act (Act 19 of 1924). Under Section 178 of the Sea Customs Act (Act 8 of 1878), any thing liable to confiscation under the Act may be seized in any place in India, either upon land or water or within the Indian Customs waters, by any Officer of Customs or other person duly employed for the prevention of. smuggling. Under Section 178 of the Sea Customs Act (Act 8 of 1878), any thing liable to confiscation under the Act may be seized in any place in India, either upon land or water or within the Indian Customs waters, by any Officer of Customs or other person duly employed for the prevention of. smuggling. No doubt, Section 178-A of the said Act casts the burden on the person, from whose possession the goods were seiz­ed, to prove that they were not intended to be smuggled. But, it applies only to gold, gold manufactures, diamonds and other precious stones, cigarettes, cosmetics and any other goods which the Central Govern­ment may. by notification in the Official Gazette, specify in this behalf. But, no noti­fication was produced to show that the tex­tiles were also specified in any such notifica­tion. So, it cannot be stated that S. 178-A applies to this case. But, Section 178 applies and the Police Officers and the Customs officials were entitled to seize the goods on suspicion. So, I find on Point (i) that the finding of the lower Court that the goods, were in tended to be smuggled into East Pakistan and that their seizure and deten­tion were lawful is correct. 14. Point (ii): Though the goods were seized on 19-5-56 and though they were said to have been damaged by the floods on 2-6-56, they were put to auction on 6-5-57, nearly one year after their seizure and 11 months after they were said to have been damaged by the floods. The plea of the respondents for this inordinate delay in auctioning the goods, which found favour with the lower Court, is that the consignee and the appellant were making claims and counter-claims to the goods Until 28-2-57. the date of Ext. D-3 application filed by the consignee to the second respondent refusing to take the goods, after paying their value. But, the facts and the evidence are quite otherwise. Within less than one month from the date of the seizure and less than 10 days after the goods were said to have been damaged, the consignee filed an application Ext. D-10, dated 11-6-56, requesting the Assistant Collector, Central Excise and Land Customs, Silchar at Agartala to deliver 'he goods to him. On 27-6-56 the appellant himself filed a petition before him as can be seen from Ext. D-11 to release the goods in his favour. D-10, dated 11-6-56, requesting the Assistant Collector, Central Excise and Land Customs, Silchar at Agartala to deliver 'he goods to him. On 27-6-56 the appellant himself filed a petition before him as can be seen from Ext. D-11 to release the goods in his favour. Two days later the consignee filed another petition before him, on 29-6-56, disclaiming the goods on the ground that he did not pay their price to the appellant and that they might be delivered to the appellant. The respondents did not produce that petition into the Court. The appellant referred to that petition in Para 11 of his plaint. The respondents admitted in Para 12 of their written statement that the consignee relin­quished his claim in favour of the appellant as mentioned in Para 11 of the plaint. So, after 29-6-56 there was only the claim of the appellant and no counter-claim by the consignee. If the Customs Officers were diligent and alive to their duties, they should have made an offer to the appellant to take delivery of the goods after deposit­ing their value at least in June, 1956, be­cause they were alleged to have been damaged by the floods on 2-6-56. But, actually the offer was made to the consignee in February, 1957 and the consignee refus­ed the offer as can be seen from Ext. D-3 dated 28-2-57. The Sub-Judge did not at all refer to the petition filed by the con­signee on 29-6-56 and the admission of the respondents in Paragraph 12 of their written statement in having received that petition The Sub-Judge also fell into an error in thinking that both the parties were making claims and counter­claims upto 28-2-57, the date of Ext. D-3. 15. D. W. 1 (Ramendra Ranjan Chou-dhury), who was officer-in-charge of the godown, deposed in the cthef-examination that the level of the water was chest-high on the floor of the godown and that on account of the flood water the suit goods are damaged. But, in the cross-examina­tion, he deposed that he saw the goods hcfore the floods, that the department re­moved the goods from the godown of M/s. Yislmn Agency Ltd., Agartala, in February or in the beginning of March, 1957 and that an enquiry was held as to the cause of tin.- damage to the suit goods. But, the re­port of the alleged enquiry was not produced into the Court. According to him. But, the re­port of the alleged enquiry was not produced into the Court. According to him. as far as practicable, the cloth pieces were dried up in the sun, but yet he could not state whether cloth pieces of the appellant were also dried up or not. He further deposed in the cross-examination that after drying the cloth, a verification report was prepared and that without consulting the report he could not state whether all the cloth pieces were wetted or not. His evidence is that the stock /in the godown, which was above chest-high level of the water, was not damaged and yet he could not state whether the appel­lant's cloth was above that level or below it. He admitted that no attempt was made to sell away the goods immediately after the floods receded. He again deposed that the first attempt was made 4 or 5 days after the floods receded and that copies of the advertisements etc., were in the office file. But. they were not produced into the Court. So, it is quite clear that the Customs Offi cers were very negligent in storing the seiz­ed goods of the appellant and in protecting them. At least, they should have auctioned the goods immediately after they were said to have been damaged by the Hoods, 16. The learned Counsel for the appel­lant contended that the Customs depart­ment was in the position of an involuntary bailee within the meaning of Section 148 of the Indian Contract Act of 1872 and that under Section 151 it should have taken as much care of the goods as a man of ordi­nary prudence would, under similar circum­stances, take of his own goods of the same bulk, quality and value as the goods bailed. He relied on Kush Kanta Barkakati v. Chandra Kanta Kakati, AIR 1924 Cal 1056. In that case an elephant was delivered by the plaintifi to the first defendant under a contract. The animal was agreed to be re-delivered to the plaintiff on the expiration of the terms of hire. But, after the expira­tion of the terms of hire the animal was not returned to the plaintiff and it died. In that case an elephant was delivered by the plaintifi to the first defendant under a contract. The animal was agreed to be re-delivered to the plaintiff on the expiration of the terms of hire. But, after the expira­tion of the terms of hire the animal was not returned to the plaintiff and it died. It was held that under Section 160 of the Indian Contract Act it vyas the duty of the bailee to return or deliver the animal ac­cording to the baifor's direction without demand, as soon as the time for which the animal was bailed had expired and that under Section 161 of the same Act the bailee was responsible to the baifor for the loss caused to him Thus, the above case is one arising under .1 specific contract of bail­ment and docs not apply to the Facts of this case. The appellant's Counsel also relied on Lasalgaon Merchants Co-operative Bank Ltd., Lasalgaon v. Prabhudas Hathibhai, AIR 1966 Bom 134 . This case supports his contention, as it was held that it is the duty of the Government Officers, who seize the goods to take such care as every prudent man takes of his own goods and that the Government stands in the position of a bailee. But, as can be seen from Section 148 a contract o! "bailment arises when there is the delivery of goods by one person to another for some purpose, upon li contract that they shall, when the purpose is accom­plished, be returned or otherwise disposed of according to the directions of the person delivering them. So, there cannot be a eon-tract of bailment, unless there is an obliga­tion to return identical subject-matter either in its original or in an altered form. Also vide In re Gangaram Shionna Kalar, AIR 1943 Nag 168. So, strictly speaking seizure of the goods cannot fall under the definition of bailment, either voluntary or involuntary. But, there is sufficient evidence, which has already been discussed, to show that the Customs officials were negligent by fail­ing to take proper carr of the goods and by further failing either to offer them to the appellant to be taken delivery of after he deposited their price or to auction them im­mediately after they were damaged by the floods. 17. The auction of the goods was also illegally held. 17. The auction of the goods was also illegally held. Though at first the learned Counsel for the appellant disputed the allegation of the respondents that the appel­lant's textiles were also sold away, he ad­mitted on examining Exts. D-13 to D-15 notices and handbill that the goods of the appellant might have also been sold away. But. as rightly Pointed out by him, there arc1 two circumstances which go to show that the auction was not properly held. Firstly, in Ext. D-14. notice of auction dated 1-5-57, it was mentioned against serial No. 33 that the goods "which serve already confiscated" would be sold away. But, by 1-5-57 the adjudication proceedings were pending before the second respondent. They were pending even on 6-5-57 when the goods were sold in the auction. The second respondent, Collector, Land Customs, ac­tually passed the order on 19-8-57 confiscat­ing the sale proceeds. So, the allegation of respondents against serial No. 33 in Ext. D-14 that the goods were already confiscat­ed is clearly wrong This really throws suspicion about the manner in which the auction was conducted. Secondly. D. W. 1 (Ramendra Ranjan Choudhury) the officer-in-chargc of the godown deposed in the cross-examination that one-fourth of the bid money was deposited on 6-5-57 the date of the auction, but that the remaining three-fourths of the bid money was not deposited within 2-1 hours of the bid, according to the conditions of the auction. Then, the department should have held a re-sale after confiscating one-fourth bid money. But, without doing so, the department appears to have confirmed the sale in favour of the same bidder, since D. W. 1 (Ramendra Ranjan Choudhury) deposed that though au attempt was made to increase the auction bid money no mention of it was made in the bid-sheet. So, the auction was illegal for this reason also. 18. Thus, the departmental officers con­cerned were not only negligent in safeguard­ing the goods alter the floods, but were also negligent in putting them to auction about 11 months after they were said to have been damaged The learned Sub-Judge did not advert to these circumstances and held that the officers were not guilty of negli­gence, because the goods were damaged on account of the act of God and claims and counter-claims were made by the consignee and the appellant until 28-2-57 His reason­ing is incorrect. Though the goods were damaged by the act or God, proper care of the goods was not taken by the department after they were damaged and the statement of the Sub-Judge that there were claims and counter-claims upto 28-2-57 is also incorrect. 19. I find on Point (ii) that though the Seizure of the goods was lawful at the out­set, their auction after inordinate delay on 6-5-56 was affected by not only negligence but also by illegalities. 20. Point (iii) : It is common ground between the Coun­sel for both the parties that it is Article 49 of the Schedule I of the repealed Indian Limitation Act (Act 9 of 1908) which is ap­plicable to the facts of the present case. The Sub-Judge also held that the same Article applies. It is necessary to reproduce the Article, which was as follows :•- 49. For other specific Three When the pro moveable property, years perty ip wrong or for compensation fully taker or for WTonsfulh ak- injure:.1 or when infi >i mmrin. or the detainer's wrongfully detaining possession be. the same. comes unlawful.' The period of limitation of 3 years runs from firstly, the date when the property was wrongfully taken or secondly, when it was injured or thirdly, when the detainer's pos­session became unlawful. The learned Sub-Judge computed the period of 3 years from 2-6-f 956 the date on which the goods were damaged and alternatively from 6-5-1957 when the goods were auctioned and held that in any case the suit, which was filed on 9-12-1960, was barred by limitation He did not consider the third starting Point that the period of limitation would also run from the date when the possession of the detainer became unlawful. Though the seizure at the inception was lawful, their further detention became unlawful on and alter 28-2-1958, when the Central Boarti "I Revenue, New Delhi, allowed the Customs Appeal 77 of 1958 as can be seen from Ext. D-5 and directed refund of the sale proceeds to' the , appellant. After that date the detention was clearly unlawful. So, the suit which was filed on 9-12-1960 within .'3 years from 28 2-1958 is not at all barred by limitation. The two rulings relied on by the learned Coun­sel for the appellant have also some bearing on the facts of the present case. After that date the detention was clearly unlawful. So, the suit which was filed on 9-12-1960 within .'3 years from 28 2-1958 is not at all barred by limitation. The two rulings relied on by the learned Coun­sel for the appellant have also some bearing on the facts of the present case. In State of West Bengal v. Chandi Charari Das, AIH 1958 Cal 433, a certain quantity of rice of the plaintiff was illegally seized b an offi­cer of the State. The State was riot a party to the seizure, but the goods were taken charge of by the State. The office]- was pro­secuted by the plaintiff. The prosecution, however. ended in acquittal The Court applied Article 49 of Schedule I of die Indian Limitation Act (Act 9 of 1908) and held that though the possession of the goods by the Government was innocent and lawful not only at the inception but also for some succeeding period viz. the period during which the criminal case against the officer of the State was pending, its possession, however, became unlawful from the date when the office) was acquitted and the State refused to deliver back the rice or to pay its price to the plaintiff. In State of Punjab v. Joint Hindu Family Trading Firm Rati Ram Bauwari Lal, AIR 1959 Punj 173, it was held that the appropriate Article for limitation in a case, where the owner of the goods which were illegally seized under the Defence of India Rules, brought a suit for the return of the goods on the basis of his title was Article 49. The appellant's learned Counsel stated that he cited both the above rulings in the lower Court. But, the Sub-Judge did not refer to them in his judgment. It was the duty of the Sub-Judge to have referred to them and discuss then bearing on the facts of the case. He went wrong in holding that the period of limitation of 3 years ran from 2-6-1956 the date on which the goods were said to have been damaged or from 6-5-1957 the date on which the auction was held. But, the period of limita­tion of 3 years would run from the date of 28-2-1958, after which the possession of the goods by the department became unlawful. 21. But, the period of limita­tion of 3 years would run from the date of 28-2-1958, after which the possession of the goods by the department became unlawful. 21. The learned Counsel for the appel­lant also contended that limitation would start from 18-12-1959 the date of Ext. P 8 letter of the Superintendent of Central Ex­cise and Land Customs, Agartala 1st Circle, wherein he informed the appellant that the refund receipts sent to him should be return­ed to his office after signing them before a departmental officer along with the deten­tion receipt, which was granted to him at the time of the seizure of the goods. So, this would operate as an acknowledgment of the liability of the department made on 18-12-1959 and the suit was filed within 3 years therefrom. So, in this vieue also the suit is in time. 22. The appellant pursued all his re­medies before the department and the higher departmental officers and ultimately resorted to the Court. As the suit was filed within 3 years from 28-2-1958 (the date after which the department's possession of the goods became unlawful) it is in time. Finding on Point (iii) accordingly. 23. Point (iv) : This is a very material Point in the ap­peal. Under Section 197 of the Sea Customs Act (Act 8 of 1878) no owner of goods shall be entitled to claim from any Officer of Customs compensation for any loss or damage occurring to such goods at any time while they remain or are lawfully detained in any custom-house, or on any custom-housewhart, or under charge of any officer of Customs, unless it be proved that such loss or damage was occasioned by the neglect or wilful act of such officer of Cus­toms. In this case it is proved that the loss or damage to the appellant was occasioned by the negligence of the officers of Customs. But, still the question is whether the suit for damages against the Government for the tortious acts of the Government Officers lies. In this case it is proved that the loss or damage to the appellant was occasioned by the negligence of the officers of Customs. But, still the question is whether the suit for damages against the Government for the tortious acts of the Government Officers lies. Article 300 (1) of the Constitution of India, on which reliance was placed by the learned Government Advocate runs as follows :- "The Government of India may sue or be sued by the name of the Union of India and 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. * * * * * * The latest case on this subject is of the Supreme Court reported in Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh, ME 1965 SC 1039. The facts of that case are very similar to the facts of the present case, but for the difference that the seized goods in that case were not handed over to the Customs Officers but were stored in a police godown, where they were lost due to the negligence of the police officers. One Ralia Ram, a partner of M/s. Kasturi Lal Ralia Ram Jain arrived at Meerut by the Frontier Mail at about midnight. His object was to sell gold, silver and other goods in the Meerut market. But, on the way he was taken into custody by three police consta­bles and the gold and other articles were seized from him and kept in police custody. He was subsequently released on bail. But, in spite of his repeated demands his pro perty was not returned to him. He, there­fore, filed a suit against the State of U. P. for the recovery of the property or in the alternative for its price. He was subsequently released on bail. But, in spite of his repeated demands his pro perty was not returned to him. He, there­fore, filed a suit against the State of U. P. for the recovery of the property or in the alternative for its price. Two substantial contentions raised on behalf of the State of U. P. were, firstly, that the police officers were not guilty of negligence in taking care of the gold etc., and secondly, that the Gov­ernment was not liable to compensate for the negligent acts of its public servants. The trial Court repelled both the contentions and decreed the suit. But, on appeal the High Court reversed both the findings and dismissed the suit. The appellant moved for and obtained a certificate from the High Court and filed further appeal in the Supreme Court. The Supreme Court agreed with the High Court that the police officers were guilty of negligence in the matter of taking care of the property. His Lordship Gajendragadkar, C. ]., speaking for the Court delivered a classical judgment by tracing the history of the liability of the Crown for the tortious acts of its public servants. His Lordship developed the law based on the feudalistic doctrine of immu­nity and the common law principle that the King can do no wrong, that he cannot be guilty of persona] negligence or misconduct and that, as such, he cannot be responsible for the negligence or misconduct of his ser­vants. His Lordship narrated how that doctrine was applied in the time of the East India Company and how it was embodied in the respective Constitution Acts of India, viz., Section 65 of the Government of India Act, 1858; Section 32 of the Government of India Act, 1915; Section 176 of the Gov­ernment of India Act, 1935 and Art. 300 (1) of the present Constitution of India. Strong reliance was placed on the earliest leading case of the Supreme Court of Calcutta reported in the Peninsular and Oriental Steam Navigation Co. v. Secy, of State for India-in-Council, (1868-69) 5 Bom HCR App 1. In that case a servant of the plaintiff Company was proceeding on a highway in Calcutta driving a carriage which was drawn by a pair of horses belonging to the plain­tiff. v. Secy, of State for India-in-Council, (1868-69) 5 Bom HCR App 1. In that case a servant of the plaintiff Company was proceeding on a highway in Calcutta driving a carriage which was drawn by a pair of horses belonging to the plain­tiff. On the way on account of the negli­gence of the Government servants, who were employed in the Government dockyard at Kidderpore, one of the horses was injur­ed. The plaintiff Company claimed damages against the Secretary of State for India for the damage caused to the horse by the acci­dent. Peacock C, (., laid down the distinc­tion between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants and acts com­mitted by public servants, which are not referable to the delegation of any sovereign powers. 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 for-lions 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, no action for damages for loss caused by such tortious act will lie. On the other hand, if the tortious act had 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 the second category of cases, an act of a servant who might have been employed by a private individual for the same purpose. It was held that the Secretary of State was liable for the damage caused to the horse, because the East India Company itself would have been liable for the accident in question, which was caused by the negli­gence of the servants employed by the Gov­ernment as the action of the Government servants at the time of the accident was beyond the purview of their sovereign powers, 24. In the above case of AIR 1965 SC 1039 , several other eases including State of Rajasthan v. Mst Vidhyawati, AIR 1962 SC 933 . were referred to. In the above case of AIR 1965 SC 1039 , several other eases including State of Rajasthan v. Mst Vidhyawati, AIR 1962 SC 933 . were referred to. In the lattei case an employee of the State of Rajasthan, who uas driving a Government Jeep from a workshop to the Collector's residence for the Collector's use, knocked down a certain person by rashly and negligently driving the jeep. The decision of the Supreme Court in mat case was explained with clarity in the subsequent decision of AIR 1965 SC 1039 . It was Pointed out that when the Government employee was driving The Jeep car from the workshop to the Collector's residence for the Collector's use, he was employed on a task or an undertaking which could not be said to be referable to, or ultimately based on, the delegation of sover­eign or Governmental powers of the State. So, it was held that the State of Rajasthan was liable for the tortious act of the driver. Finally, the law on the subject was suc­cinctly summarised in AIR 1965 SC 1039 , as follows :- "It is not difficult to realize the signi­ficance and importance of making such a distinction particularly at the present time when, in pursuit of their welfare ideal, the Government of the States as well as the Government of India naturally and legiti­mately enter into many commercial and other undertakings and activities which have no relation with the traditional concept of Governmental activities in which the exer­cise of sovereign power is involved. It is necessary to limit the area of these affairs of the Slate in relation to the exercise of sovereign power. so that if acts are com­mitted by Government employees in relation to other activities which may be convenient­ly described as non-Governmental or non-sovereign, citizens who have a cause of action for damages should not be precluded from making their claim against the State. That is the basis on which the area of the State immunity against such claims must be limited; and this is exactly what has been done by this Court in its 'decision in the case of State of Rajasthan. 1962 Supp (2) SCR 989 = AIR 1962 SC 933 ". That is the basis on which the area of the State immunity against such claims must be limited; and this is exactly what has been done by this Court in its 'decision in the case of State of Rajasthan. 1962 Supp (2) SCR 989 = AIR 1962 SC 933 ". The Supreme Court concluded in that case that though the police officers were negli­gent while dealing with the property of Ralia Ram, their powers to arrest him, search him and to seize his property were powers conferred on the specified office's by statute, that in the last analysis. Hi were powers which could be property characterised as sovereign powers and that there was no difficulty in holding that the tortious acts of the police officers were com­mitted by the employees of the State of Uttar Pradesh during the course of its em­ployment, that the employment fell within the category which could claim the special characteristic of sovereign power and. that, therefore, the claim could not be sustained. Their Lordships felt disturbed by the thought that a citizen, whose property was seized by process of law, has to be told when he seeks a remedy in a Court of Law that lie can make no claim against the Court, that it is not a very satisfactory posi­tion in law and that the remedy to cure the Position, however, lay in the hands of the legislature. It appears that1 now a bill is pending before the Parliament to remedy this position in law. 25. Applying the above decision to the facts of the present case, it is seen that though the Customs Officers were guilty of negligence and laches in safeguarding and auctioning the textile goods of the appel­lant, they committed the tortious acts in the course of their employment after seizing the property in exercise of their statutory powers under Sec. 178 of the Sea Customs Act (Act 8 of 1878), which are referable to the sovereign powers of the State and so the respondents are not liable to compensate the appellant for the same. The facts of the case as well as the principles laid down in AIR 1965 SC 1039 , are directly to the Point in this case The decision of the Punjab High Court in Union of India v. Harbans Singh, AIR 1959 Punj 39. is also to the Point. 26. The facts of the case as well as the principles laid down in AIR 1965 SC 1039 , are directly to the Point in this case The decision of the Punjab High Court in Union of India v. Harbans Singh, AIR 1959 Punj 39. is also to the Point. 26. The learned Counsel for the appel­lant, however, felt that the above decision of the Supreme Court is a stumbling block-in his way and vet sought to distinguish the above case mainly on two grounds. His first contention is that in the above case the goods were kept in police custody, that they were lost on account of the negligence of the police officers, but that in the present case after the police officers seized the goods they were made over to the Customs Offi­cers and the goods were damaged on ac­count of the negligence of the Customs Offi­cers and that the functions of the Customs Officers are to collect customs duty, while the functions of the police officers are to maintain law and order, that the Customs Officers are not police officers and that, therefore, the above decision of the Supreme Court does not apply to this case. He relied on State of Punjab v. Barkat Ram, AIR 1962 SC 276 . The question in that case was whether a confession made before a Cus­toms Officer was hit by Section 25 of the Indian Evidence Act. The Supreme Court held that the Customs Officers are intended to prevent the smuggling of goods by importing confiscation and penalties and act judicially, but that the Police Officers do not act judicially and that hence a Customs Offi­cer either under the Land Customs Act (Act 19 of 1924) or under the Sea Customs Act ;Act 8 of 1878) is not a police officer for the purpose of Section 25 of the Indian Evidence Act. This decision does not help the appellant's contention at all. Though in the case of AIR 1965 SC 1039 , the goods were lost when they were in the custody of the police, while in the present case they were damaged when they were in '-he possession of the Customs Officers, their duties with regard to the seizure and detention -of goods are practically the same. Though in the case of AIR 1965 SC 1039 , the goods were lost when they were in the custody of the police, while in the present case they were damaged when they were in '-he possession of the Customs Officers, their duties with regard to the seizure and detention -of goods are practically the same. The Police Officers derive their powers of arrest, seizure etc., under the provisions of the Criminal Procedure Code and Police Acts, while the Customs Officers derive their powers of secure of the goods under Section 178 of the Sea Customs Act (Act 8 of 1878) and the Land Customs Act. So, the fact that the negligence was caused when the goods were in the custody of the police in the case decided by the Supreme Court, while in the present case the goods were damaged when they were in the possession of the Customs Officers is of no conse­quence. The second contention of the learned Counsel for the appellant is that the duties of the police officers are to maintain law and order, but that those of the Customs Officers is to collect Sea or Land Customs, that the preambles of the Sea Customs Act (Act 8 of 1878) and the Land Customs Act (Act 19 of 1924) show that they were enact­ed to augment the revenues of the State, that like the Indian Income Tax Act they are all taxation laws, that they were enacted in separate years, that it cannot be stated that before they were enacted there was no Governmental activity or Governance of the country, that for example, in 1857 the sovereignty of India was vested in Queen Victoria, while the Sea Customs Act was passed in 1878, that it cannot be contended that in between 1857 and' 1878 there was no Governance of the country, that, there-Tore, the Land Customs Officers cannot be said to be delegated with sovereign powers, that their action fell within the second cate­gory of tortious acts done not in relation to the exercise of Governmental activities or sovereign powers of the State and that, therefore, the respondents are liable to pay the damages. The answer to this contention is found in Para 29 of the judgment in MR 1965 SC 1039 at p. L048. The answer to this contention is found in Para 29 of the judgment in MR 1965 SC 1039 at p. L048. Their Lordships held that the Police Officers in that case committed the act of negligence while dealing with the property of Rali Ram which they had seiz­ed in exercise of their statutory powers, that their power to arrest him or search him and seize his property were all powers con­ferred upon the specified officers by statute and that in the last analysis they were powers which could be properly characteris­ed as sovereign powers, that, therefore, there was no difficulty at all in holding that the act which gave rise to the claim of damages was committed Jpy the negligence of the employees during the course of their employment, that the act claimed a special characteristic feature of sovereign power and that, therefore, the claim for damages could not be sustained. In the present case also the power of the Customs Officers to seize the property in question is a power conferred upon them by the Sea Customs Act (Act 8 of 1878). It is a statutory power, which can be properly characterised as a sovereign power and the tortious acts were committed by them during the course of their employment by the State, [t has to be further mentioned that there is a fallacy in the argument of the learned Counsel for the appellant. Main­tenance of law and order by the-Police Offi­cers is not the only sovereign power of the State or its police-employees. Collection of customs and taxes is also another sovereign! power of the State for its governance, which has to be exercised by its Customs-employees. Besides, the second contention of the learned Counsel for the appellant is not supported by any authority. So, the suit for damages for negligence is not main­tainable. 27, However, there is another important aspect of the case. As rightly Pointed out by the learned Counsel for the appellant, the amount claimed by the appellant in the suit includes the admitted amount of Rs. 805 which was ordered to be refunded to him under Ext. D-5. This claim was also dis­allowed by the lower Court on the ground that it was barred by limitation. Now that it is found that the suit is not barred by limitation, the claim for this amount is in time. 805 which was ordered to be refunded to him under Ext. D-5. This claim was also dis­allowed by the lower Court on the ground that it was barred by limitation. Now that it is found that the suit is not barred by limitation, the claim for this amount is in time. The contention of the learned Counsel for the appellant is that even if the respon­dents are held not liable for damages on account of the tortious acts of their emplo­yees. sttil, the order of the Central Board of Revenue, New Delhi, passed on 28-2-58 as per Ext. D-5 partakes the special charac­teristic feature of sovereign power and that it can be entorced. The same arguments which apply to the liability of the respon­dents for tortious acts of their employees must also apply to the orders passed by them in exercise of their sovereign powers. So, there cannot be any legal bar for passing a decree for the admitted amount of Rs. S05 ordered to be refunded to the appellant by the Central Board of Revenue, New Delhi under Ext. D-5. But as the appellant did not take that amount, he will act be entitled to claim any interest which in the nature of damages. As the respondents did not deposit that amount in the Lower Court, the appellant will be however entitled to proportionate costs. 28. For the above reasons 1 find on Point (iv) that except for the admitted amount of Rs. 805 the claim of the appellant for the balance is not maintainable. 29. In the result, the appeal is allowed and the judgment and decree of the lower Court are set aside and the suit is decreed for Rs. 805 with proportionate costs in both the Courts. Appeal allowed.