( 1 ) THE plaintiff has filed this appeal against the judgment and decree of the Civil Judge, Udipi, in AS. No. 104 of 1965, on his file affirming the judgment and decree passed by the Additional Munsiff of Udipi in OS. No. 341 of 1963, dismissing the plaintiff's suit with costs. ( 2 ) THE plaintiff filed a suit for a judgment and decree against the defendants for payment of Rs. 97. 75 together with costs and current interest being expenses incuried by the plaintiff in engaging defence lawyer and paying Batta to the second defendant and notice charges. The basis for the plaintiff's claim is that he had tendered a sum of Rs. 479 to the Sub-Treasury Officer, being the tax due in respect of Goods Vehicle myv 653 owned by the plaintiff for the quarter commencing from 1-10-62 to 31-12-62 on 5-10-1962 and handed over the registration certificate, fitness certificate, and insurance cover to the Sub-Treasury. In the meanwhile, on 16-10-1962, a case was booked by the Sub-Inspector of Police, Traffic, mangalore, against the driver of the vehicle for failure to produce the above said documents and also to exhibit the tax licence as required under ss. 5 (3) (1), 12 (3) (1) and 16 of the Motor Vehicles Taxation Act, 1957. The driver was tried in CC. No. 1220 of 1862 and the proceedings ended ih the conviction and sentence of fine of Rs. 5. The plaintiff's case is that failure of the plaintiff's driver to produce the documents and to exhibit the token in the Goods Vehicle was due to the retention of those documents by the Sub-Treasury Officer, Udipi, for making necessary endorsement and verification for the issue of token or licence. It is averred that it was not open to the Sub-Treasury Officer, to cause delay in returning the documents and that on account of the said act of retention of the document by the Sub-Treasury Officer, Udipi, the plaintiff sustained a loss to the tune of Rs. 82. 75 P. The suit is for the recovery of the said sum with costs. ( 3 ) THE defendants have resisted the suit. 82. 75 P. The suit is for the recovery of the said sum with costs. ( 3 ) THE defendants have resisted the suit. The first defendant has denied the surrender of the documents on 5-10-1962, according to him, but admits that they were surrendered on 10-10-1962, and they were returned after necessary verification of the documents, the token or licence was issued to the plaintiff on 17-10-1862. There was no avoidable delay in giving those documents on the part of the Sub-Treasury Officer, as they were returned to the plaintiff at the earliest possible time with all possible speed considering the large number of tokens issued in that quarter, namely, 284, in all and the dearth of staff then available in the office. They plead that there was absolutely no negligence on the part of the first defendant or its officials and the action of the first defendant is bona fide. According to the defendant, this suit is filed with ulterior motive to find fault with the Sub-Treasury Officer, the second defendant. It is pleaded that it is for the legislature to make appropriate legislation to set the matters right so as to avoid hardship to the driver or owner of the vehicle in producing the documents referred to above well in time and the paintiff should have exhausted his remedy against conviction in the said criminal case by a revision. ( 4 ) THE trial Court framed five issues and came to the conclusion that the plaintiff has failed to prove delay and negligence on the part of the second defendant in returning the documents. In that view of the matter, the trial Court held that the plaintiff is not entitled to any damages. Further, it is held that the defendants' action are bonafide and justified and are protected by law. ( 5 ) THE first appellate Court has affirmed all the findings of the trial court. Aggrieved by the said judgment and decree of the first appellate court, the plaintiff has come up in appeal. In this appeal, the State of mysore who was the first defendant alone is impleaded as the respondent and the second defendant, the Sub-Treasury Officer, Udipi, has not been impleaded. Aggrieved by the said judgment and decree of the first appellate court, the plaintiff has come up in appeal. In this appeal, the State of mysore who was the first defendant alone is impleaded as the respondent and the second defendant, the Sub-Treasury Officer, Udipi, has not been impleaded. ( 6 ) THE questions tor decision are :- (1) Whether the 2nd defendant, a servant of the 1st defendant has caused loss to the plaintiff on account of his negligence in not issuing tax token and in not returning documents after the tax amount was paid ? (2) Whether the issue of a licence under S. 5 of the Mysore Motor vehicles Taxation Act of 1957 is a sovereign act and is immune from liability ? ( 7 ) THE contention of Mr. Karanth for the plaintiff, is that the first defendant, the State of Mysore, is, in no way, different from other individuals when loss is caused to the plaintiff on account of the negligence on the part of the second defendant, the Sub-Treasury Officer, Udipi. He urged that the tax was paid on 5-10-1962 and the tax token was given to the plaintiff on 17-10-1962. According to Sri Karanth, it is a clear case of statutory negligence on the part of the officer. In support of his argument, he relied upon the provisions of S5 (1) of the Motor Vehicles taxation Act, 1957 (to be hereinafter referred to as the Act) which impose a statutory liability on the Sub-Treasury Officer to issue tax token immediately on receipt of the tax amount. He argued that on account of the failure on the part of the second defendant to issue tax token, the plaintiff's driver was prosecuted and that the plaintiff sustained loss of rs. 83. 60p. He also argued that the defendants should so perform their duties as not to injure private rights and if private rights are infringed, the defendants are liable for damages as any other individual. Since the defendants have not pleaded that the issue of a licence is a sovereign act and claimed immunity, they are not entitled to raise that plea in the second appeal. Since the defendants have not pleaded that the issue of a licence is a sovereign act and claimed immunity, they are not entitled to raise that plea in the second appeal. ( 8 ) IN reply to this contention, Sri Chandrasekhar, learned Government pleader, contended that the State and its servants are immune from liability for the omissions and commissions on the part of its public servants in the course of their employment and in the exercise of statutory functions delegated to them by the Government. ( 9 ) BEFORE considering the validity of the contentions raised on behalf of the parties, it is necessary to note the undisputed facts in this case. In respect of the lorry in question, Rs. 479. 00 was due for the last quarter from 1-10-1962 to 31-12-1962 and it was paid to the Sub-Treasury Officer, udipi. It is not disputed that the second defendant, the Sub-Treasury officer, is the licensing Officer. Immediately on payment of the tax, tax token was not given along with the documents produced by the plaintiff. The actual date of payment is no doubt disputed by the parties. The plaintiff asserts that he paid it on 5-10-1962 while the defendants say that it was paid on 10-10-1962. This difference is immaterial for the reason. that the tax token was given on 17-10-1962 and on the same day the documents were returned. The driver was prosecuted on 16-10-1962 in CC. No. 1210 of 1962 before the Magistrate, Coondapur and convicted and sentenced to pay a fine of Rs. 5. The plaintiff's driver paid the fine amount he was defenderd by a Lawyer who was paid his fees. ( 10 ) SECTION 3 of the Act is charging section. Section 5 of the Act authorises the issue of licence. It reads as under:"issue of license - (1) Subject to the provisions of S. 6, when any person pays the amount of tax in respect of a motor vehicle, the licensing officer shall- (i) grant to such person a tax license in the prescribed form; and (ii) record that the tax has been paid for the specified period in the certificate of registration granted in respect of the vehicle under the Motor Vehicles Act, 1939, or, in the case of vehicles not registered under the said Act, in the tax license. (2) No motor vehicle liable to tax under S. 3, shall be kept in the state of Mysore, uness the registered owner or the person having possession or control of such vehicle has obtained a tax license under sub-sec. (1) in respect of that vehicle. (3) No motor vehicle liable to tax under S. 3 shall be used in a public place unless a valid tax license obtained under sub-sec. (1) is displayed on the vehicle in the prescribed manner. " ( 11 ) IT is also relevant to notice Rule 12 of the Mysore Motor Vehicles taxation Rules, 1957 (to be hereinafter referred to as the Rules):"grant of licenses -The Licensing Officer, after satisfying himself that the tax due in respect of a motor vehicle has been paid, shall prepare a license in Forms 1, 2 or 3, as the case may be, in triplicate, and after filling up the particulars, duly sign and stamp it with his office seal. The original shall be given to the person paying the tax and the duplicate with the declaration form under Rule 17 shall be forwarded to the Registering authority of the respective District. The triplicate shall be retained by the Licensing Officer. An endorsement shall be made on the certificate of registration of the payment of tax. " ( 12 ) FROM sub-sec. (1) of S. 5 of the Act, it is clear that a statutory duty is imposed upon the licensing officer to grant a tax licence in the prescribed form to any person who pays amount of tax in respect of a motor vehicle. Further, it is his duty to record the fact of payment of tax in the registration certificate granted in respect of a vehicle under the act or in the tax licence itself. This section does not specify any time limit within which the licensing officer should grant a tax licence. Sub-sec. (3) of S. 5 of the Act prohibits the use of a motor vehicle liable to tax in a public place unless a valid tax licence is obtained under sub-sec. (1) and has been displayed on the vehicle in the prescribed manner. This sub-sec. , in my opinion, presumes issue of the tax token by the licensing officer without delay when the tax is paid as required u/s 5 (1) of the Act. (1) and has been displayed on the vehicle in the prescribed manner. This sub-sec. , in my opinion, presumes issue of the tax token by the licensing officer without delay when the tax is paid as required u/s 5 (1) of the Act. Rule 12 requires the licensing officer to prepare the licence in the required form in triplicate after satisfying himself that the tax due in respect of a motor vehicle has been paid and give the original to the person paying the tax. ( 13 ) MR. Karanth argued that immediately on payment under sub-sec. (1) of S. 5 of the Act, 01 the amount of tax in respect of a motor vehicle, it is the' duty of the licensing officer to grant to such person a tax licence in the proscribed form. In view of Rule 12 of the Rules, it is not possible to accept the contention of Mr. Karanth that immediately on payment of the amount of tax, tne licensing officer should grant a tax licence. Rule 12, as stated above, requires the licensing officer to satisfy himself that the tax due in respect of a motor vehicle has been paid. This requires sometime to verify the fact of payment and prepare the licence in the prescribed form in triplicate after filling up the particulars by signing and stamping with his office seal. Therefore, the licensing officer is entitled to take reasonable time to verify and prepare the tax licence. ' But in the instant case, according to the plaintiff, 12 days have elapsed and according to the admission made by the second defendant, 7 days have elapsed from the date of payment of arrear of tax. In either case, it is not possible to say that the time taken by the second defendant was a reasonable time. Undoubtedly, there has been undue delay in granting the licence, especially in view of the prohibition to use a motor vehicle liabe to tax in public place unless a valid licence is taken and displayed on the vehicle. The explanation of the second defendant is that his office was inadequately staffed and there were a number of applica cations for grant of tax licence, and, therefore, there was delay. The explanation of the second defendant is that his office was inadequately staffed and there were a number of applica cations for grant of tax licence, and, therefore, there was delay. This explanation is hardly acceptable Evidence discloses that the 2nd deft paid deaf ears when the plaintiff brought to his notice the prosecution of the driver of the plaintiff company on account of delay in the issue of tax token and return of documents. Evidence further discloses that such delay has become habitual in the 2nd defendant's treasury. This state of affairs in the office of the public functionary is deprecated. The only inference that could be drawn, in these circumstances, is that there has been omission r,n the part of the second defendant to take prompt action after the plaintiff paid the amount of tax in granting the tax licence. Failure on the part of the second defendant to act promptly in granting the tax icence, gives rise to an inference of gross negligence. The learned civil Judge is wrong in coming to the conclusion that the negligence is not proved in this case. Negligence on the part of the second defendant in discharge of his statutory duties as required under S. 5 (1) of the Act is proved and it has undoubtedly caused loss to the plaintiff, as alleged in the plaint. ( 14 ) NOW the crucial question for determination is, whether such negligence in not granting the tax licence to the plaintiff after tax amount was paid, entitles plaintiff to claim damages from the 1st deft. Mr. Chandrashekhar, learned Government Pleader, relied upon a decision in M/s. Kasturi Lal Ralia Ram Jain v. State of U. P. , AIR 1965 SC 1039 . The Supreme Court has laid down the law as follows:"there is a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of soverign powers delegated to public servants, and acts committed by public servants which are not referable to the delegation of any sovereign powers. The Supreme Court has laid down the law as follows:"there is a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of soverign 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 tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on, the delegation of the sovereign powers of the State to such public servant ? If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of sovereign power, an action for damages would lie. The act of the public servant committed by him during the course of his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose. This distinction which is clear and precise in law, is sometimes not borne in mind in discussing questions of the State's liability arising from tortious acts committed by public servants. The significance and importance of making such a distinction has to be realised particularly at the present time when, in pursuant 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 State in relation to the exercise ot 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 This is the basis on which the area of the State immunity against such claims must be limited. "it is clear from the above decision that if the acts committed by a public servant are in discharge oi statutory functions which are referable to and ultimately based on the delegation of sovereign powers of the State to such public servant, the action for damages for loss caused by such tortious act will not lie, but if tortious acts are committed by a public servant in discharge of Ms duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie their Lordships of the Supreme Court, in the above said decision, were dealing with the arrest of the plaintiff by the police on suspicion of possessing stolen property and on search of his person, a large quantity of gold was seized under the provisions of the Cr. P. Code. The plaintiff was released but the gold seized from him was not returned as the Head Constable in charge of the Malkhana had absconded with the valuable property including the gold seized from the plaintiff. The plaintiff brought a suit against the State of Uttar Pradesh for return of the gold or in the alternative claimed damages for the loss caused to him. In that case, police officers had not followed relevant provisions of law and they had committed acts of negligence in dealing with the seized property. In spite of these circumstances in that case, their Lordships came to the conclusion that the power to arrest a person, to search his person and to seize the property found with him are powers conferred on specified officers by statute and in last analysis they are powers which can be properly characterised as sovereign powers. So the act which gave rise to the claim of the plaintiff in that case for damages had been committed by the Police officers of the State during the course of their employment, but the employment in question being in the category which could claim special characteristics of sovererign powers, the Supreme Court disallowed the plaintiff's claim. ( 15 ) MR. Karanth, learned Advocate for the plaintiff, contended that the power exercised by the licensing authority for the issue of licence is not a sovereign power, as in the pre-Constitution days, even the Municipal bodies were collecting toll tax on the vehicles, by not exercising the sovereign power. ( 15 ) MR. Karanth, learned Advocate for the plaintiff, contended that the power exercised by the licensing authority for the issue of licence is not a sovereign power, as in the pre-Constitution days, even the Municipal bodies were collecting toll tax on the vehicles, by not exercising the sovereign power. Further, he urged that in order to find out whether the power exercised under the Act is a sovereign power, one has to go into the history of levy of tax by the State or the Union Government by taking into consideration the history of the matter from the days of East india Company. He nextly contended that Government Pleader should not be allowed to raise the plea of immunity on the ground of exercising sovereign power, at this stage, as there was no pleading nor proof to show that the licensing authority was exercising the sovereign power while issuing the licence. I am unable to agree with both the contentions raised by Mr. Karanth. Art. 265 of the Constitution of India lays down: "no tax shall be levied or collected except by authority of law. " further, there is three-fold distribution of legislative powers between the union and the States under Art. 246 of the Constitution of India. In the state list, contained in the 7th Schedule of the Constitution, the State legislature shall have exclusive power of legislation on item No. 57 to levy lax on vehicles whether mechanically propelled or not suitable for use on roads including tram-cars subject to the provisions of Entry 35 of the List III, i. e. concurrent list. In exercise of the said power conferred on the State Legislature in Mysore, the Mysore Motor Vehicle Taxation act, 1957 was passed by the Legislature and it received the assent of the president of India and came into force on the 'appointed day'. S. 5 of the act delegates power to the licensing officer to grant tax licence when a person pays the amount of tax in respect of a motor vehicle. The exercise of the power by the licensing officer under S. 5 of the Act, cannot be compared with the toll tax that was being collected by the local bodies. As stated earlier, no tax shall be levied without the authority of law. In basu's Commentary on the Constitution of India, 5th Edition, 4th Vol. The exercise of the power by the licensing officer under S. 5 of the Act, cannot be compared with the toll tax that was being collected by the local bodies. As stated earlier, no tax shall be levied without the authority of law. In basu's Commentary on the Constitution of India, 5th Edition, 4th Vol. at page 249, the learned author, on a consideration of some foreign as well as Supreme Court decisions has given commentary as follows:"a tax is a charge levied upon a person or property for the support of Government, or for the public purpose, namely, to raise the general revenue. It is a demand of sovereignity and is thus distinguished from a toll which is founded on proprietorship. From this stand-point, taxation is taking of the private property for public use under conditions determined by law. "i am in agreement with the views expressed by the Commentator. Therefore, i have no doubt in my mind that the powers contained in the Act are, in general and the issue of licence by the licensing offiner, in particular, under S. 5 of the Act, can be characterised as sovereign power, and there is no need to go into the history of the matter from the days of east India Company as contended by Mr. Karanth to find out whether a levy on a motor vehicle exercised by the State is a sovereign power. ( 16 ) IN support of the other contention, Mr. Karanth relied upon a Bench decision of this Court in ganapathi Bhat v. State of Madras, 1960 Mys. L. J. 323 and contended that in the absence of pleading and proof, the State is disentitled to claim immunity from liability on the ground that the act was done in performance of sovereign function. This Court has held as follows:"in a suit for damages against the State for personal injuries suffered by the plaintiff due to rash and negligent driving of a motor vehicle belonging to the Civil Supply Department of the State, if the state claims immunity from the liability for the tort committed by its servant on the ground that the accident happened during the exercise of sovereign function of the State it is for the State to allege and prove the facts which would justify the view that the function that its servant was performing was a sovereign function. The question as to whether the driver was performing a sovereign function is not a pure question of lav: but a mixed question of law and fact. Whether a particular function is a sovereign function or not depends upon the nature of that function the circumstances attendant upon its exercise and the source of the power which authorises its exercise. In the absence of pleading and proof it was not open to the State to raise the plea at the stage of arguments nor was the Court justified in giving a finding that the accident happened during the exercise of a sovereign function by a servant of the State. "it is clear from the above decision thai the question involved in the said decision was not a pure question of law. but was a mixed question of law and fact, as observed by their Lordships. Their Lordships have observed:"whether a particular function is a sovereign function or not-depends upon the nature of that function, the circumstances attendant upon its exercise and the source of the power which authorises its exercise. "therefore: in that case, they decided that in the absence of pleading and proof, it was not open to the State to raise the plea at the stage of arguments. But, in the instant case, the questton is one of pure law. The nature of the function, the cireumstances attendant upon its exercise and the source of power which the second defendant was authorised to exercise, are easily discernible without proof of any fact. Therefore, in my humble opinion, the ratio of the decision in Ganapathi Bhat v. State of madras is not applicable to this case. In the present case, as both the parties know all the relevant frcts, no further enquiry into facts is necessary. Thus there is a pure question of law. It is almost settled law that a question which is purely one of law and involves no further enquiry into facts may be taken in second appeal, even though it may not have been raised in the Courts below. Thus there is a pure question of law. It is almost settled law that a question which is purely one of law and involves no further enquiry into facts may be taken in second appeal, even though it may not have been raised in the Courts below. The Supreme Court in Yeshwant deorao v. Walchand Ramchand, AIR 1951 SC 16 has laid down the law on the point thus:"if the facts proved and found as established are sufficient to make out a case of fraud within the meaning of S. 18, Limitation Act, the objection that the plea under S. 18, was not taken in lower Courts or in the grounds of appeal is not serious, as the question of applicability of the section will be only a question of law and such a question can be raised at any stage of the case and also in the final Court of appeal. " ( 17 ) IT is clear from the above decision that the question of law can be raised at any stage of the case and also in the final Court of appeal. In view or the statement of law by the Supreme Court, it is not possible to accept the contention of Mr. Karanth that the 1st defendant should not be allowed to raise the question of immunity from liability. Therefore, his contention fails. ( 18 ) SO the proved negligence on the part of the licensing officer in causing delay in issuing the tax token which gave raise to the present claim for damages, has been undoubtedly committed by the second defendant during the course of his employment and in the exercise of sovereign power delegated to him under the Act. The tortious act committed by the second defendant in the course of his emplyment and in the exercise of statutory functions delegated to him by the State, entitles the first defendant to claim immunity from liability and the calm of the plaintiff for damages is not sustainable in view of the statement of law by the supreme Court in M s. Kasturi Lal Ralia Ram Jain v. State of U. P. ( 19 ) BEFORE parting with this case, I am constrained to observe that on account of the negligence on the part of the second defendant, which has been deprecated by me, the plaintiff has sustained damages. The first defendant who has succeeded only on a technical ground should not. in my opinion, fail to take action against the fecond defendant who has failed to discharge his duties promptly and which has caused loss to the plaintiff. Even now, it is left to the good sense of the first defendant to take such action as is necessary against the second defendant and. give such redressal as the first defendant may deem fit to the plaintiff who is a fleet owner and who has been paying considerable revenue to the government exchequer by way of tax on motor vehicles. ( 20 ) FOR these reasons and not for the reasons stated by the Courts below, I hold that the plaintiff's suit has been rightly dismissed. The appeal fails and the same is dismissed. In the peculiar circumstances of the case, the parties to bear thpir own costs. Send a copy of this judgment to the Chief Secretary. --- *** --- .