Judgement This appeal has been filed against the judgment and decree dated 16-3-1994 passed by the learned Assistant District Judge, Dhubri in Money suit No. 10 of 1987. 2. A suit was filed for realisation of compensation damage for alleged illegal seizure of seeds and loss of business the claim was for an amount of Rs. 80,000/- with interest @ 18% till realisation with cost and other reliefs. 3. The plaintiff being a seed merchant used to store and sell seeds of different agricultural products such as jute, vegetables, oil seeds etc. The plaintiff also is a member of Indian Farmers Association. The name and style of the business of the plaintiffs was Hindusthan Seeds Company at Bilasipara under Dhubri District. 4. On last 22-4-87 at 3 p.m. the defendant No. 6, O/c, Bilasipara Police Station by seizure list had taken possession of certain seeds from the shop of the plaintiff and seized some other seeds from the house of the plaintiff. The value of the goods so seized was claimed by the plaintiff to be Rs. 70,000/-. The Bilasipara police station had no storage facility to keep the seeds and ultimately the seeds were damaged because of the negligence, carelessness and vindictive behaviour of the defendant No. 6. The alleged illegal seizure had completely damaged the plaintiffs business for the whole year and thereby the plaintiff had sustained a loss not less than Rs. 10,000/- as profit. A notice under Section 80 was issued and thereafter the suit was filed. 5. The defendants filed a written statement wherein the main plea which was taken was that the plaintiff was carrying the business without any licence from the proper authority and as such the whole business of the plaintiffs was illegal. The District Agricultural Officer had no information about the firm of the plaintiff. It is averred that the police has received complaint from the local Anchalik AGP workers regarding the illegal business of the plaintiff and hence the police seized the seeds. It was alleged that the plaintiff violated the provisions of Seeds Act and hence the defendants prayed for dismissal of the suit. 6. 4 issues were framed in the suit. They are as follows : i) Whether the suit is maintainable? ii) Whether the defendants had caused loss to the plaintiff by illegal seizure of the seeds causing loss to the plaintiff? 6. 4 issues were framed in the suit. They are as follows : i) Whether the suit is maintainable? ii) Whether the defendants had caused loss to the plaintiff by illegal seizure of the seeds causing loss to the plaintiff? iii) Whether the plaintiff is entitled to get compensation as claimed in the suit? iv) To what relief, if any the plaintiff is entitled? 7. Both the parties adduced oral as well as documentary evidence in support of the said issues. It may be stated herein that a criminal case was also instituted against the plaintiff being GR case No. 688/1987, but he was acquitted in that case. The following are the witnesses examined in the suit. i) PW-1 Md Naymuiddin ii) PW 2 Ahmed Ali iii) P. W. 3 Jafarulla Siddiqe, iv) P. W. 4 Raghu Nath Prasad v) D. W. 1 Rana Lal. Certain documents were also exhibited. 8. There is an Act in the name and style the "Seeds Act, 1966". The Act extends to the whole of India. Section 7 of the Act provides for regulation of sale of seeds of notified kinds or varieties. That Section is quoted below : "7. Regulation of sale of seeds of notified kinds or varieties,- No person shall, himself or by any other person on his behalf, carry on the business of selling, keeping for sale, offering to sell, bartering or otherwise supplying any seed of any notified kind or variety, unless - (a) such seed is identifiable as to its kind or variety; (b) such seed conforms to the minimum limits of germination and purity specified under clause (a) of section 6; (c) the container of such seed bears in the prescribed manner, the mark or label containing the correct particulars thereof, specified under clause (b) of section 6; and (d) he complies with such other requirements as may be prescribed." Section 9 provides for grant of certificate by certification agency. Section 22 provides for protection of action taken in good faith. There is an order in the name and style of Seeds (Control) Order, 1983. This order was made in exercise of power conferred under Section 3 of the Essential Commodities Act, 1955. Order No. 3 provides as follows : "3. Section 22 provides for protection of action taken in good faith. There is an order in the name and style of Seeds (Control) Order, 1983. This order was made in exercise of power conferred under Section 3 of the Essential Commodities Act, 1955. Order No. 3 provides as follows : "3. Dealer to obtain licence.- (1) No person shall carry on the business of selling exporting or importing seeds at any place except under and in accordance with the terms and conditions of licence granted to him under this order. (2) Notwithstanding anything contained in sub-clause (1), the State Government may, by notification in the Official Gazette, exempt from the provisions of that sub-clause such class of dealers in such areas and subject to such conditions as may be specified in the notification." Order No. 6 provides for period of validity of licence and that period is 3 years. Order No. 7 provides for renewal of licence. 9. The admitted position in this case is that the plaintiff did not have any licence as required under the Act and the Order promulgated as quoted above. The plaintiff claimed exemption from licence on the ground that he is a member of the Indian Farmers Association. In support of it is the Certificate No. 8677 and that was valid up to 31-3-1988. The date of issue of this certificate is not known, nor it has been stated in the deposition. The exemption is claimed on the basis of a letter written on 15-6-85 to the Director of Agriculture, Government of Assam, Guwahati and that letter in its entirety is quoted below : Registered A. D. "No. 150685/Supreme Court. Date 15-6-1985 To The Director of Agriculture, The Government of Assam, Gauhati. SUB : Seed Control Order, 1983 is not appli- cable on the members of Indian Farmers Association, Anywhere in India, by the Modified Order dated 13-12-84 of Su- preme Court of India Dear Sir, I want to draw your attention, my letter number 161284/IFA/Supreme/ Dated 16-12-84 by registered A. D. dated 18-12-84. I received complaints from my members of your province regularly that your district agriculture officer and quality control inspectors are threatening our members to take licence and fulfil other all the requirements under Seed Control Order, 1983. The same complaints were found from Govt. of Haryana and Director Agriculture, Haryana. I received complaints from my members of your province regularly that your district agriculture officer and quality control inspectors are threatening our members to take licence and fulfil other all the requirements under Seed Control Order, 1983. The same complaints were found from Govt. of Haryana and Director Agriculture, Haryana. The Supreme Court of India, issued show cause notice on 13-12-1984 and ordered that the Govt. will neither prosecute the dealers nor exercise the powers of seizure for any violation of the Seed Control Order, 1983, anywhere in India. (a copy of the order of Supreme Court of India is here enclosed for you) I request you again to issue an order to your concern officers accordingly. Please, send me a copy of your order for my information. Thanking you. G. C. All members of Indian Farmers Association. (SANGRAM SINGH CHANDHAY) PRESIDENT." This letter was issued on the basis of an order passed by the Apex Court in an application filed by the Indian Farmers Association before the Apex Court and the date of the order is 13-12-84. That order is quoted below. "SUPREME COURT OF INDIA Writ Petition (Civil) Nos. 15337-38 of 1984. Indian Farmers Association an another . . Petitioners v. . Union of India and another . . Respondents. Date 13-12-84. ORDER modified its order dated 25-10-84 as follows : "Issue show cause notice." The respondents are directed not to institute prosecution against the petitioners, for any violation of the impugned order. Pending disposal of these petitions, the Govt. will neither prosecute the dealers nor exercise the powers of seizure under the impugned orders. They may however take samples of seeds which are sold by the petitioners." Nowhere it has been stated by the plaintiff what happened to this application later on. So, exemption claimed by the plaintiff is absolutely a vague one. A bare perusal of the F. I. R. will show that the seeds which the plaintiff was selling are not genuine seeds and he was selling them without any licence and the Inspector of Police went to the place and demanded him to show the documents regarding genuineness of the seeds and the plaintiff failed to show any genuineness certificate with regard to the seeds and it was violative of Section 7 of the Seeds Act of 1966. Clause (a) of Section 6 provides as follows : "(a) the minimum limits of germination and purity with respect to any seed of any notified kind or variety; With regard to this there was a notification in the gazette of India on 29-9-69. The seeds which were seized from the plaintiff did not have any mark or label to indicate that said seeds conform to the minimum limit of germination and purity specified. So, these seeds were seized by exercising the power under Section 102 of the Code of Criminal Procedure which gives the power to the police officer to seize certain properties. Attempts were made to give the custody of the seeds as will be evident from the pleading and the evidence. But the plaintiff did not come forward to take the custody of the same. This is the background with regard to the seizure. 10. The learned Judge did not consider this aspect of the matter. He by one line order rejected this contention holding that the defendants in their written statement in paragraph 9 have admitted that the Sub-Divisional Agricultural Officer allowed the plaintiff to sell jute seeds, but the seeds which were seized are not only jute seeds, but other seeds of different variety. Further, all the seeds were tested in the laboratory of the State of Assam and the laboratory submitted the following report : Ext. Kha .. jute seeds .. Report is that the see is impure and it does not conform to the minimum limit of germination. Ext. ga .. is another report regarding jute seeds and it was also found to be impure not having the minimun linit of germination. Ext. Cha and .. is another report with regard to Moricha Datha and that was also found to be impure and it was found that 93% of the seeds were dead. In the record a detailed report is found from the laboratory with regard to all the seeds and all the seeds were found to be impure and as such a case was registered under S. 420, I. P. C. The seeds which were seized are as follows : (1) Amaranthus seeds (2) Brinjal seeds (3) Onion seeds (4) Ladies fingure seeds (5) Radish seeds (6) Spinach seeds (7) Jute seeds. Sri K. N. Chakraborty, Assistant Director (Biology), Forensic Laboratory, Assam, Kahilipara, Guwahati-19 submitted the report with regard to the purity of the seeds and that report is dated 22-3-88. So, all the seeds seized were found to be impure. Now in the background of this case, let us go to the decision of this case. 11. The learned judge found that no reliance can be placed on the report of the examiner as they were examined after lapse of two months. The learned Judge held that prosecution by defence was malicious as there was absence of reasonable and probable cause for such proceeding and as such the plaintiff suffered damages. The learned Judge on consideration of the materials on record gave a decree for an amount of Rs. 59,888/- on the ground of malicious prosecution as well as on the ground of damage and compensation for illegal seizure with interest @ 12% till realisation. Hence, this appeal. 12. I have heard Sri H. N. Sarma, learned Advocate for the appellant and Sri D. C. Mahanta, learned Advocate for the respondent. Sri Sarma urges as follows : i) the seizure was in exercise of soverign power of the State and the plaintiff is not entitled to any damage and/or compensation. Regarding the first point, Sri Sarma draws my attention to the plaint. The cause title of the plaint states that it is a suit for realisation of compensation and damage for illegal seizure of seeds and loss of business and the prayer also is to the same effect. There is not even a whisper in the plaint regarding malicious prosecution. So, he submits that the learned Judge made out a new case for the plaintiff to give relief for malicious prosecution. The suit was not based on malicious prosecution and there was also no issue on the question of malicious prosecution. And as such, this part of the finding of the learned Judge regarding damage for malicious prosecution must fall through on this ground alone. 13. Sri D. C. Mahanta, learned Advocate for the respondent fairly concedes that this was not a suit for malicious prosecution and as such the question of granting relief on the basis of malicious prosecution does not arise. So, this part of the judgment granting compensation for malicious prosecution shall stand set aside and quashed. 14. 13. Sri D. C. Mahanta, learned Advocate for the respondent fairly concedes that this was not a suit for malicious prosecution and as such the question of granting relief on the basis of malicious prosecution does not arise. So, this part of the judgment granting compensation for malicious prosecution shall stand set aside and quashed. 14. The next question is that whether even if there was an illegal seizure, the plaintiff is entitled to the relief claimed. Sri H. N. Sarma, learned Advocate for the appellant in this connection places reliance in AIR 1965 SC 1039 (M/s. Kasturi Lal Ralia Ram Jain v. The State of Uttar Pradesh). That was a judgment by 5 Judge Bench. In paragraphs 20 and 21 of the Judgment, the Supreme Court laid down the law as follows :- "It is in respect of this aspect of the matter that the Chief Justice enunciated a principle which has been consistently followed in all subsequent decisions. Said the learned C. J., "there is a great and clear distinction between acts done in the exercise of what are usually termed sovereign powers, and acts done in the conduct of undertakings which might be carried on by private individuals without having such powers delegated to them." Having thus enunciated the basic principle, the Chief Justice stated another proposition as flowing from it. He observed that "where an act is done, or a contract is entered into, in the exercise of powers usually called sovereign powers, by which we mean powers which cannot be lawfully exercised except by sovereign, or private individual delegated by a sovereign to exercise them, no action will lie." And, naturally it follows that where an act is done, or a contract is entered into, in the exercise of powers which cannot be called sovereign powers, action will lie. That, in brief, is the decision of the Supreme Court of Calcutta in the case of the Peninsular and Oriental Steam Navigation Co, 5 Bom HCR App 1 (supra). Thus, it is clear that this case recognises a material 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. Thus, it is clear that this case recognises a material 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 tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on, the delegation of the sovereign powers of the State to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. The act of the public servant committed by him during the course of his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose. This distinction which is clear and precise in law, is sometimes not borne in mind in discussing questions of the States liability arising from tortious acts committed by public servants. That is why the clarity and precision with which this distinction was emphasised by Chief Justice Peacock as early as 1861 has been recognised as a classic statement on this subject." This case again came up for consideration in AIR 1994 SC 2663 (N. Nagendra Rao and Co. v. State of Andhra Pradesh) wherein paragraph 9, 2 judge bench of the Apex Court laid down the law as follows : "In England it was recognised that the King could not be sued. "In illustrating the doctrine that the Queen can do no wrong Prof. Dicey gives what he describes as an "absurd example", if Queen were herself to shoot the Prime Minister through the head, "he says," no Court in England could take cognizance of the Act." The basis for it in England was both substantive and procedural. "In illustrating the doctrine that the Queen can do no wrong Prof. Dicey gives what he describes as an "absurd example", if Queen were herself to shoot the Prime Minister through the head, "he says," no Court in England could take cognizance of the Act." The basis for it in England was both substantive and procedural. The former flowed from the divine right of the Kings and the latter from the feudal principle that the King could not be sued in his own Courts. Yet it did not mean that he was above law. The true meaning of the expression that the King can do no wrong meant, that the king has no legal power to do wrong (H. W. R. Wade, Administrative Law, Sixth Edition). Therefore, the institution of the petition of rights was founded upon the theory that the King, of his own free will, graciously orders right to be done. But the petition lay only to recover unliquidated damages for breach of contract by the Crown. It was not extended by the Courts to Claims arising out of torts. In Viscount Canterbury v. The Attorney General 1 PH 306 (41) English Reports Chancery p. 648, one of the questions that arose was whether the Crown was liable to make good the loss for the fire which had been caused by the personal negligence of the Commissioners. The answer given was that even though the officer who was guilty of negligence was liable personally, the liability did not extend to the Crown. This immunity peculiar to the English system found its way in our system of governance through various judgments rendered during British period, more particularly after 1858, even though the maxim "lex non protest peccare" that is the King can do no wrong had no place in ancient India or in medieval India as the Kings in both the period subjected themselves to the rule of law and system of justice prevalent like the ordinary subjects of the States. According to Manu, it was the duty of the King to uphold the law and he was as much subject to the law as any other person. In the Vedic period Kingship was purely secular institution. Ancient Indian Philosophers were not prepared to recognise the divinity of the unworthy kings (G. P. Verma - State Liability in India). According to Manu, it was the duty of the King to uphold the law and he was as much subject to the law as any other person. In the Vedic period Kingship was purely secular institution. Ancient Indian Philosophers were not prepared to recognise the divinity of the unworthy kings (G. P. Verma - State Liability in India). It was said by Brihaspati where a servant commissioned by his master does any improper act, for the benefit of his master, the latter shall be held responsible for it." Even during Muslim rule the fundamental concept under Muslim law like Hindu Law was that the authority of King was subordinate to that of the law. It was not different during British rule. The Courts leaned in favour of holding the State responsible for the negligence of its officers. See Narayan Krishna Laud v. Gerard Norman, Collector of Bombay, (1868-69) 5 Bom HCR 1, decision which has been approved in State of Rajasthan v. Mst. Vidhyawati, AIR 1962 SC 933 ." It was pointed out by the Supreme Court in paragraph 26 inter alia as follows : "Ratio of Kasturi Lal ( AIR 1965 SC 1039 ) (supra) is available to those rare and limited cases where the statutory authority acts as a delegate of such function for which it cannot be sued in Court of law. In Kasturi Lals case the property for damages of which the suit was filed was seized by the police officers while exercising the power of arrest under S. 54(1)(iv) of the Criminal Procedure Code. The power to search and apprehend a suspect under Criminal Procedure Code is one of the inalienable powers of State. It was probably for this reason that the principle of sovereign immunity in the conservative sense was extended by the Court. But the same principle would not be available in large number of other activities carried on by the State by enacting a law in its legislative competence." 15. In AIR 1962 SC 933 (State of Rajasthan v. Vidyawati) the Supreme Court held that the State was vicariously liable for the torts of its servant. In the case a pedestrian was knocked down by a jeep belonging to the Welfare Department of the State. The widow sued the State for damage. In AIR 1962 SC 933 (State of Rajasthan v. Vidyawati) the Supreme Court held that the State was vicariously liable for the torts of its servant. In the case a pedestrian was knocked down by a jeep belonging to the Welfare Department of the State. The widow sued the State for damage. It was not disputed that the accident was caused due to negligence of the driver while he was driving the jeep from the repairing shop to the Collectors residence. On behalf of the State a plea of immunity was taken. Singha, C. J. who delivered the judgment of the Court observed that the State was as much liable for the torts of its servant as any other employer. In India ever since time of the East India Company Sovereign was held to be liable to be sued for tort and plea of immunity of the sovereign was never available. The Honble C. J. observed that after adoption of the Republican Govt. under the Constitution there was absolutely no justification for granting such immunity. He did not limit the liability of the State to torts committed by its servant for purpose of its non sovereign function. In Kasturi Lal v. State of U. P., ( AIR 1965 SC 1039 ) (supra) Gajendragadkar C. J. speaking for the Court revived the sovereign and non sovereign dichotomy. In this case a quantity of gold was seized by the police officer from one Ralia Ram who was a partner of the plaintiffs firm on suspicion that it was stolen property. The gold was kept at the police malkhana in the custody of the Head constable who misappropriated the gold and fled away to Pakistan. It was alleged by the plaintiff that the loss was caused by the negligence of the Police Officer who had not taken proper care of the said property. Although the Court agreed that the police officer acted negligently but it held that since the police officer acted in exercise of sovereign function of the State the State was not liable for the damage caused. The relevant portion of the judgment with general principle of vicarious liability of the State has already been quoted. The Court distinguished the case of Bidyawati on the ground that in this particular case, defendant had not acted in exercise of sovereign function. The relevant portion of the judgment with general principle of vicarious liability of the State has already been quoted. The Court distinguished the case of Bidyawati on the ground that in this particular case, defendant had not acted in exercise of sovereign function. The Supreme Court only in some cases have come to the conclusion that the sovereign immunity could no longer be available for violation of fundamental right, life or personal liberty granted under Article 21 of the Constitution (See AIR 1984 SC 1026 and AIR 1986 SC 494 ). 16. So, in this particular case, it must be held that the seizure of the seeds were in exercise of the sovereign power and the plaintiff is not entitled to any damage as claimed. Further, Sri Sarma also rightly urges that the imposition of interest @ 12% is not legal as there can be no interest on damage for the simple reason that there cannot be claim for damage and interest simultaneously, because interest is nothing, but a sort of damage. 17. For the reasons stated above, this first appeal is to be allowed which I hereby do by setting aside and quashing the impugned judgment and decree dated 16-3-94 passed by the learned Assistant District Judge, Dhubri in Money Suit No. 10 of 1987. No costs. Appeal allowed.