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2000 DIGILAW 93 (RAJ)

Dhool Chand v. State of Rajasthan

2000-01-27

N.P.GUPTA

body2000
Honble GUPTA, J.–Present appeal has been filed by the plaintiff, whose suit for damages has been dismissed by the learned Additional District Judge, Rajsamand, vide judgment and decree dated 6.10.1983. (2). The case of the plaintiff is that the plaintiff is an Agriculturist who undertakes agricultural operation by scientific system. According to the plaintiff, in the year, 1976, internal National Emergency was promulgated and Family Planning Campaign was being implemented at the Government level and, in this process, the defendants No.2 & 3, on 7.10.1976, are said to have persuaded, rather forced the plaintiff to motivate persons for sterilisation operations. The plaintiff, on account of his wife ailing, declined. Consequently, being annoyed, the defendant No. 2 asked the plaintiff to get himself operated and on that count, nursed ill-will against the plaintiff. (3). The plaintiff further pleaded that actuated by this malice, the defendants No. 2 and 3 undertook the search of the house of the plaintiff where his brother and their families reside and when nothing objectionable was found, wheat bags and wheat heaps, which were laying on the Chabutari, in side the Pol and on either side of the Pol, were seized and in the seizure memo, even the plaintiffs contention about the stock being belonging to the two brothers, was not noticed. This search and seizure adversely affected the plaintiffs reputation in the estimation of the villagers and neighbours and this was done with intention to disgrace and undermine the plaintiffs reputation. As a result of this incident, according to the plaintiff, the villagers and inhabitants of neighbouring villages started assessing the plaintiff to be anti-social element and thus, his social status was lowered. The plaintiff also contended that the defendants No.2 & 3 also wanted to have the plaintiff arrested and with that end in view, a complaint u/ss. 107 & 151, Cr. P.C., was sent to the Police Station, Rail Magra, while, as a matter of fact, there was no apprehension of breach of peace. It was pleaded by the plaintiff that after the seizure of the wheats, proceedings were initiated u/s. 6-A of the Essential Commodities Act, (hereinafter referred to as `the Act), in defending which proceedings, the plaintiff had to incur expenditure to the extent of Rs. 1,500/-, which he has claimed as damages and has also claimed Rs. 10,000/-as general damages. It was pleaded by the plaintiff that after the seizure of the wheats, proceedings were initiated u/s. 6-A of the Essential Commodities Act, (hereinafter referred to as `the Act), in defending which proceedings, the plaintiff had to incur expenditure to the extent of Rs. 1,500/-, which he has claimed as damages and has also claimed Rs. 10,000/-as general damages. Thus, in substance, the suit is for recovery of damages for a tort and for illegal search and seizure of the plaintiffs house. (4). The defendants have filed though different written statements, but then, more or less, they are on identical lines. The substance of the defence is that the whole story of motivation for sterilisation operations is false, and there was no malice or grudge entertained by the defendants. There was no misuse or abuse of any power by the defendants No.2 & 3. It is positively contended that the plaintiff is Mahajan and carries on business and had stocked the wheat in violation of the provisions of the Essential Commodities Act and the Orders promulgated thereunder and was holding unaccounted stock for the purpose of sale. It was also contended that the theory of wheat belonging to the two brothers is an after thought one. It was also pleaded that the plaintiff is a dealer and the place where the wheat was stocked was a place of business and had not been declared as purchase centre. According to the defendants, the plaintiff could not hold a stock of more than 5 quintals and that, even if the plaintiff claims himself to be a producer, still he is not entitled to stock more than twenty or five quintals. Thus, there was a clear violation of the provisions of the Rules. It was contended that the action taken by the defendants does not fall within the expression `malicious prosecution. Likewise, it was contended that whatever had been done by the defendants, was in accordance with the provisions of Sec. 3 of the Essential Commodities Act and the provisions of the Rajasthan Wheat (Regulation of Trade) Order, 1973 (hereinafter referred to as `the Order, 1973) and the Orders issued there under, with the result that since this action was taken without any malice, by virtue of Sec. 15 of the Essential Commodities Act, they cannot be sued. (5). Regarding the filing of the complaint against the plaintiff u/ss. 107 & 151, Cr. (5). Regarding the filing of the complaint against the plaintiff u/ss. 107 & 151, Cr. P.C. the allegation was denied and then, it was also contended that this does not amount to malicious prosecution, the details of the expenditure alleged to have been incurred by the plaintiff, were also denied. Defendants further took the stand that by virtue of Sec. 15 of the Essential Commodities Act, the Court has no jurisdiction to hear the suit and the defendants are entitled to compensatory costs. (6). The learned trial Court, on the pleadings, framed six issues and vide judgment dated 6.10.1983, has dismissed the suit. (7). I have gone through the record available with the Court as the records consisting of the statements and documents are not available and appear to have been weeded out, whatever evidence was available with the learned counsel for the parties, has been perused, with their consent. (8). The learned trial Court, while deciding issue No.1, has found that no proceedings were initiated, nor any complaint was made u/ss. 107 & 151, Cr. P.C. From the record, I also do not find any such proceedings to have been taken against the plaintiff. Consequently, this finding does not require any interference. (9). So far as the main question about the search and seizure being illegal, it is not in dispute that on 7.10.1976, a search was under-taken of the house of the plaintiff and therein 39 bags full of wheat were seized, purportedly in violation of the Order. It is also not in dispute that vide Ex. 1, the learned Collector had accepted the contention of the present plaintiff about the wheat being of yield of his own cultivation and ordered the release of the goods to the plaintiff and had also ordered the complaint to be dismissed. It is significant to note that even in this order, the learned Collector had proceeded, inter alia, on the basis that the wheat belonged to two brothers and after considering the revenue records, it was found that it is probable, it was also held that at the time of checking, the Authority concerned should have satisfied himself as to whether the stock is of his yield for cultivation of two brothers, as the checking officer has seized the goods taking it to be of one brother only. (10). (10). Thus, it is clear that all through the matter had been considered on the basis as if the plaintiff being a cultivator, was entitled to stock 20 quintals of wheat and the question was as to whether the goods belonged to the two brothers, who could thus, hold 40 quintals and, therefore, the search and seizure amounted to a tort qua the plaintiff and it is on this basis that in para 14, the learned trial Court had found that since the plaintiff could not stock more than 20 quintals, stocking of 39 quintals was prima facie violative of R. 15 and Enforcement Inspector had the right to take proceedings and when he could take the proceedings, it cannot be said that the action was taken by the concerned Authority on account of the plaintiffs not cooperating in Family Planning Operations. (11). During the course of hearing, it has been brought to my notice by the learned counsel for the appellant that as a matter of fact much before the seizure was done, amendment in the order, was made inasmuch as vide Notification dated 2.6.1976, published in the Rajasthan Gazette Extra-ordinary dated 2.6.1976, the State Government had made the Order known as Rajasthan Wheat (Regulation of Trade) (Amendment) Order, 1976 and according to R.2(ii) thereof, for the expression ``20 quintals, the expression ``50 quintals was substituted in sub-cl. (2) of Cl. 15. Thus, w.e.f. 2.6.1976, even a producer could hold stock of wheat in quantity not exceeding 50 quintals, at any time, after 30th June of each year. Undisputably, the quantity seized is far less than 50 quintals, even if the entire stock is taken to be of the plaintiff. It has, but to be assumed that the Enforcement Inspector is supposed to be aware with the requirements of the order before he takes any step to undertake any such search or seizure of any stock at anyones house. (12). It has, but to be assumed that the Enforcement Inspector is supposed to be aware with the requirements of the order before he takes any step to undertake any such search or seizure of any stock at anyones house. (12). I have gone through the evidence of the parties on the question of the allegations and counter-allegations regarding Family Planning Operations and find that the evidence is not so consistent to make this Court believe that what the plaintiff contended in that regard is all true, but, at the same time, considering the preponderance of probabilities, it is also clear that it cannot be said that all what the plaintiff is contending, is altogether false either, inasmuch as in para 14, the learned trial Court has quoted some description about Ex. 6, which gives some indication about some problem being there on the basis of family planning operations qua the plaintiff. Unfortunately, since the original record has been weeded out, this Court is seriously handicapped in arrive at the precise finding as to what actually transpired, giving rise to the controversy in this regard. However, the fact does remain that there was some thing fishy or say some sore taste between the parties on the assumption of some expected cooperations by the defendants from the plaintiffs. In this back ground, if the act of undertaking search and seizure is considered, as found above, it is clear that the act was at the same time, without any basis as the stock was definitely far fellow 50 quintals. (13). In this view of the matter, the benefit of Sec. 15 as given by the learned trial Court while deciding issue No.4, can also not be extended to the defendants, for the simple reason that a look at Sec. 15 would show that it provides protection to any person for anything which is in good faith done or intended to be done in pursuance of any order made u/S. 3. Likewise, according to Sec. 2 also, no suit or other legal proceedings lay for any damages caused or likely to be caused by anything which in good faith done or intended to be done in pursuance of any order made u/s. 3. Likewise, according to Sec. 2 also, no suit or other legal proceedings lay for any damages caused or likely to be caused by anything which in good faith done or intended to be done in pursuance of any order made u/s. 3. As found above, when the order made u/s. 3 clearly permits a purchaser to hold wheat up to the extent of 50 quintals, the act of the defendants in undertaking search and seizure, when the stock found is only 39 bags and that also on the basis of the plaintiffs entitlement to hold, a stock of 20 quintals only, can on no para-meters be said to be either an act of good faith or an act intended to be done in pursuance of any order made u/s. 3. This coupled with the fact that this search and seizure was undertaken at a point of time when there was a sore taste between the parties, this also additionally negatives the existing of purported good faith. And the act of seizure of wheat does give rise to a right to the plaintiff to claim damages in tort. Thus, the finding of the learned trial Court on issue No.1, on this aspect of the matter, requires to be reversed and is hereby reversed. (14). Coming to the issue No.2 regarding quantum, the plaintiff in the plaint has claimed Rs. 1,500/-by way of damages on the basis of his having paid Rs. 500/-to Mr. Fateh Singh Mehta by way of profession fees, another Rs. 500/-to have been paid for taking proceedings before the Collector and Rs. 500/-are claimed to have been spent in travelling etc. from Gogathala to Udaipur and back. Of course, the plaintiff has not produced the receipts or other documents to precisely prove the amounts, but, then, undisputably, the goods were seized on 7.10.1976 and the learned Collector had passed the order Ex. 1 on 27.4.1977, taking a practical and reasonable view, it has to be assumed that in undertaking these proceedings, the plaintiff did have to spend money in paying some professional fees to lawyer and to travel to and from Gogathala to Udaipur and did have to incur other incidental expenses. Since the matter relates to the year, 1976, under this head, I feel proper to decree a consolidated amount of Rs. 500/-. Since the matter relates to the year, 1976, under this head, I feel proper to decree a consolidated amount of Rs. 500/-. So far as general damages are concerned, I think it proper to decree a sum of Rs. 3,000/-only as against the amount of Rs. 10,000/-claimed by the plaintiff. (15). So far as the liability of individual defendant is concerned, the relevant issue, being issue No.3, was expressly not pressed by the defendants and, therefore, all the defendants are jointly and severally liable for the amount that is being decreed. (16). Consequently, the present appeal is allowed, the impugned judgment and decree is set aside and the plaintiffs suit is decreed against the defendants jointly and severally for a sum of Rs. 3,500/-as detailed above. The plaintiff will be entitled to proportionate cost of this appeal and the amount will carry interest at the rate of 12% from today, till realisation.