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2005 DIGILAW 833 (GAU)

Hemodhar Gogoi v. Union of India

2005-12-14

BROJENDRA PRASAD KATAKEY, D.BISWAS

body2005
JUDGMENT B.P. Katakey, J. 1. This appeal is directed against the order dated 16.12.1998 passed by the learned Single Judge in Civil Rule No. 6360 of 1998, dismissing the writ petition filed by the petitioner/ appellant with an observation that the petitioner/appellant may approach the learned civil court, having competent jurisdiction, to prove negligence of the respondents and to claim damages. 2. The facts leading to the filing of the present appeal is that, a writ petition being Civil Rule No. 6360 of 1998 was filed by the petitioner/appellant praying for directing the respondents to refund an amount of Rs. 9,53,500 belonging to him with interest at the rate of 18% per annum, alleging that the petitioner/appellant who is a licensee of Indian made Foreign Liquor under the Government of Assam and running the said shop at Duliajan was picked up by the Army Personnel from Duliajan Army Camp led by Major Mohendra, respondent No. 4, without any rhyme or reason and tortured him inhumanely in the Army Camp, that Major Mohendra and his personnel demanded cash from the petitioner/appellant alleging that a sum of Rs. 70,00,000 belongs to the United Liberation Front of Assam (ULFA) lying with the petitioner that Major asked the petitioner/ appellant to deposit all his personal cash if he wanted to be released. The petitioner appellant having no other alternative, through his wife initially paid Rs. 3,00,000 to Major Mohendra from out of his sale proceeds of the liquor and that the said Major was not satisfied with the amount and ultimately compelled the petitioner/appellant, who was in custody of Army to sign a cheque of Rs. 12,05,000 brought by his wife and get the said amount collected thought his wife, which was also given to Major Mohendra. Apart from that the petitioner was also compelled to pay a further sum of Rs. 2,90,000 to said Major Mohendra. On 6.11.1991 when the petitioner/appellant approached the Deputy Commissioner, Dibrugarh to lodge complaint he came to know that Major Mohendra has deposited a sum of Rs. 5,00,000 out of the total amount taken from him and thereafter deposited the balance amount of Rs. 10,05,000 in Duliajan P.S. stating that the said mount has been recovered from the bank of Dehing river. 5,00,000 out of the total amount taken from him and thereafter deposited the balance amount of Rs. 10,05,000 in Duliajan P.S. stating that the said mount has been recovered from the bank of Dehing river. As the army authority in spite of the payment of the amount continued to torture the petitioner/appellant as well as the family members, a writ petition being C.R. (HC) 224 of 1991 was filed before this Court wherein, an order was passed directing the authority to keep the money under lock and key in the Dibrugarh Treasury and not to harass the petitioner/appellant and his family members. A C.B.I. enquiry was also directed to be conducted by this Court in respect of the said allegations, but the report of the C.B.I. was not accepted by this Court. This Court upon hearing the parties directed to hold an enquiry by the District Judge, Dibrugarh, by order dated 28.2.1994 passed in the said writ petition and the undisputed amount of Rs. 5,00,000 was directed to be handed over to the petitioner/appellant, as the Army has admitted that the said amount was taken from the petitioner/appellant's house and further directing that the remaining amount of Rs. 10,05,000 is to be kept in the Treasury directing the District Judge to hold an enquiry whether the said amount was recovered by the army from the family members of the appellant after it was withdrawn from bank account or from his other personal sources or whether it was recovered from any place outside the house of the petitioner/appellant as claimed by said Major respondent No. 4. The learned District Judge, Dibrugarh upon conduct of the enquiry submitted his report to this Court in C.R. (H.C.) 224 of 1991 by holding that the amount of Rs. 10,05,000 belonged to the petitioner/appellant and the said money was taken from him by the Army authority as the appellant's story regarding taking of the said money from the petitioner/appellant by the said Army authority was found to be true. 10,05,000 belonged to the petitioner/appellant and the said money was taken from him by the Army authority as the appellant's story regarding taking of the said money from the petitioner/appellant by the said Army authority was found to be true. A Division Bench of this Court thereafter vide judgment and order dated 2.5.1997 disposed of the said writ petition being C.R. (HC) 224 of 1991 after accepting the report submitted by the learned District Judge, Dibrugarh and on the basis of the submission of the learned Additional Advocate General, appearing for the State respondent, that the State respondent has no objection to return the said amount of Rs. 10,05,000 to the petitioner/ appellant, directed the Deputy Commissioner/Treasury Officer, Dibrugarh, Assam to refund the said amount to the petitioner/appellant within a week as the money was kept in the Dibrugarh Treasury under the order of the court. The petitioner/appellant when went to the Deputy Commissioner, Dibrugarh to receive the said amount from the Treasury, it was found upon opening of the box containing the money that only a sum of Rs. 51,500 was in good condition and the remaining amount was in a mutilated condition. The Treasury Officer thereafter directed the Officer-in-charge at Duliajan Police Station to approach the Reserve Bank of India, departmentally through the Superintendent of Police, Dibrugarh for exchange of the remaining mutilated currency. Accordingly, the Officer-in-charge of Duliajan Police Station on 3.7.1997 requested the Reserve Bank of India to exchange the damaged currency amounting to Rs. 9,53,500 which, however, been refused by the Reserved Bank of India as currency notes were in such a position that the denominations could not be determined. A writ petition being C.R. No. 6360 of 1998 was filed with the relief as mentioned above. The said writ petition was dismissed by the learned Single Judge and hence the present appeal. 3 We have heard Mr. N. Dutta, learned senior Counsel for the petitioner/appellant, Mr. H. Rahman, learned Assistant Solicitor General, Mr. S. Ali, learned Additional Advocate General, Assam and Mr. M. Bhuyan, learned Standing Counsel, Reserve Bank of India. 4. Mr. The said writ petition was dismissed by the learned Single Judge and hence the present appeal. 3 We have heard Mr. N. Dutta, learned senior Counsel for the petitioner/appellant, Mr. H. Rahman, learned Assistant Solicitor General, Mr. S. Ali, learned Additional Advocate General, Assam and Mr. M. Bhuyan, learned Standing Counsel, Reserve Bank of India. 4. Mr. Dutta, learned senior Counsel appearing on behalf of the petitioner/appellant, challenging the order dated 16.12.1998 passed by the learned Single Judge dismissing the writ petition with the observation that the petitioner/appellant may approach the learned civil court, has submitted that, in the enquiry conducted by the learned District Judge, Dibrugarh, on the basis of the order passed by the High Court in C.R. (H.C) 224 of 1991, it was found that the amount of Rs. 10,05,000 belonging to the petitioner/appellant was taken by the Army official and as the High Court by accepting the said report directed the respondents to refund the said amount, which was kept in safe custody in Dibrugarh Treasury under the order of this Court, the said amount has to be refunded to the petitioner/appellant as it was the duty of the Dibrugarh Treasury to keep the amount in deposit in such a condition that it can be refunded, if so ordered by the court. According to the learned Senior Counsel, the position of the Treasury Officer of the Dibrugarh Treasury is like a bailiff of the court and all possible care has to be taken by the Treasury for safe custody of the amount in deposit. According to the learned Senior Counsel, as the money has been kept in Dibrugarh Treasury under the order of the court, the petitioner/appellant cannot be deprived of from the said property on the ground that the money in the custody of the Dibrugarh Treasury was damaged while kept in a seal cover under the order of the court, as the order of the court should prejudice none. Mr. Dutta has further submitted that the State cannot take the stand that it is immune from liability as the money has been damaged while in custody of the Dibrugarh Treasury in a seal box, as at best it would be a tortious acts committed by the Officer-in-charge of the Treasury. According to Mr. Mr. Dutta has further submitted that the State cannot take the stand that it is immune from liability as the money has been damaged while in custody of the Dibrugarh Treasury in a seal box, as at best it would be a tortious acts committed by the Officer-in-charge of the Treasury. According to Mr. Dutta because of the failure of Treasury to keep the said money in good condition, the State will definitely be responsible and hence, the petitioner/appellant is entitled to get those money back as the respondent never at any time objected to the acceptance of the report submitted by the learned District Judge, Dibrugarh. Mr. Dutta has further submitted that the order passed by the learned Single Judge rejecting the petition by holding that it was, the duty of the petitioner/appellant to take all necessary steps and to obtain order from the court from time to time, so that money kept in sealed cover in Dibrugarh Treasury was in a good condition liable to be interfered with as the petitioner/appellant cannot have any access to the Treasury and the duty was on the Officer-in-charge of the Treasury, who is the servant of the State, to keep the money in good conditions as his position is like a bailiff of the court. Mr. Dutta, in support of his contention has placed relianced in Mis. Kasturi Lal Ralia Ram Jain v. Stale of Uttar Pradesh reported in (1966)II LLJ 583 SC, in the State of Gujarat v. Memon Mahomed Haji Hasam Dead X by his legal Representatives reported in AIR 1967 SC 1885 , in Wazir Chand and another v. State of Himachal Pradesh and other reported in 1954 Cri LJ 1029 and in Kerala State Electricity Board v. M.R.F. Ltd. reported in (1996) 1 SCC 597 . Mr. Dutta referring to the decision of the Apex Court in Kasturi Lal Ralia Ram Jain (supra) has submitted that the said decision of the Apex Court is not applicable in the instant case, as the facts and circumstances of the case was different. 5. Mr. H. Rahman, learned Assistant Solicitor General as well as Mr. Mr. Dutta referring to the decision of the Apex Court in Kasturi Lal Ralia Ram Jain (supra) has submitted that the said decision of the Apex Court is not applicable in the instant case, as the facts and circumstances of the case was different. 5. Mr. H. Rahman, learned Assistant Solicitor General as well as Mr. S. Ali, learned Additional Advocate General, Assam supporting the order passed by the learned Single Judge dismissing the writ petition, have contended that the petitioner/appellant before getting an order of refund must prove the negligence of the Treasury Officer of Dibrugarh Treasury under whose custody money was kept in a seal box, which the appellant has failed to prove. The further submission of the learned Counsel is that whether the Treasury Officer was negligent or not is to be decided by filing a regular suit in a competent civil court having jurisdiction over the matter. Both the learned Counsels have submitted that as the petitioner/appellant in the writ petition alleged negligent of the Officer of Dibrugarh Treasury, who is a public servant discharging the sovereign powers of the State, the State cannot be made liable for the tortuous act of such Officer. Both the learned Counsels in support of their contention have placed reliance on Mis. Kasturi Lal Ralia Ram Jain (supra). 6. Mr. M. Bhuyan, learned Counsel for the Reserve Bank of India, has submitted that the Reserve Bank of India has nothing to do with the writ petition as no relief has been claimed against them. Mr. Bhuyan, learned Counsel has further submitted that the Reserve Bank of India came into picture when some mutilated notes were presented before it for exchange, which they refused to do as the denominations of the said currency could not be determined. 7. We have considered the submissions made by the learned Counsel for the parties and also perused the materials available on record. 8. On the basis of the writ petition filed by the petitioner/appellant in C.R. (H.C) 224 of 1991, a Division Bench of this Court vide order dated 28.2.1994 directed release of a sum of Rs. 5,00,000 to the petitioner/appellant, which was recovered from the brother of the petitioner/appellant by the army authority. By the said order the learned District Judge, Dibrugarh was directed to make an enquiry on the following questions: Whether the amount of Rs. 10,05,000 other than Rs. 5,00,000 to the petitioner/appellant, which was recovered from the brother of the petitioner/appellant by the army authority. By the said order the learned District Judge, Dibrugarh was directed to make an enquiry on the following questions: Whether the amount of Rs. 10,05,000 other than Rs. 5,00,000 was recovered from the family members of the writ petitioner after it was withdrawn from the bank account or from his other personal sources as claimed by the petitioner or whether it was recovered from any place outside the house of the writ petitioner as claimed by Major Mahendra respondent No. 4. 9. The learned District Judge, Dibrugarh pursuant to the aforesaid directions passed in the order dated 28.2.1994 conducted the enquiry and submitted his report with the conclusion that Rs. 10,05,000 which was the subject-matter of the enquiry, belongs to the petitioner/ appellant Hemodhar Gogoi, as it was found that the story of the petitioner/appellant in the enquiry regarding money taken from him by the army was found to be true. The said report submitted by the learned District Judge, Dibrugarh in Civil Rule (HC) 224 of 1991 was accepted by the Division Bench of this Court and the said court vide judgment and order dated 2.5.1997, after recording the submission of the learned Additional Advocate General. Assam to the effect that he has no objection if the amount of Rs. 10,05,000 was ordered to be returned to the petitioner/appellant, has passed the following order: The learned Additional Advocate General, appearing for the respondent State submitted that he has no objection if the amount of Rs. 10,05,000 is ordered to be returned to the petitioner but in case any criminal prosecution is pending against him in regard to this amount the passing of such an order will be postponed to safeguard the interest of the State as well as the Union of India, the amount of Rs. 10,05,000 is ordered to be returned to the petitioner subject to any permissible legal action under the Income Tax Act or any pending criminal prosecution, involving this amount of Rs. 10,05,000, it be refunded within a week from today on production of certified copy of this order by the Deputy Commissioner/Treasury Officer, Dibrugarh, Assam, or any other authorities concerned. This petition stands finally disposed of with no order as to costs. 10. 10,05,000, it be refunded within a week from today on production of certified copy of this order by the Deputy Commissioner/Treasury Officer, Dibrugarh, Assam, or any other authorities concerned. This petition stands finally disposed of with no order as to costs. 10. Pursuant to the said direction issued vide order dated 2.5.1997 passed in C.R. (HC) 224 of 1991, the petitioner/appellant approached the Deputy Commissioner, Dibrugarh for return of the money which was kept in safe custody with the Dibrugarh Treasury, in a sealed box and on being opened the said sealed box it was found that most of the currency notes in the said box was in a mutilated condition and an amount of Rs. 51,500 could only be found to be usable and paid to the petitioner/appellant, which was received by him on 25.1.1997, as currency notes in respect of the remaining amount were found to be in a mutilated condition. Treasury Officer, Dibrugarh thereafter wrote to the Officer-in-charge, Duliajan P.S. to move the Currency Officer, Reserve Bank of India for exchange of the said notes and accordingly the Currency Officer of the Reserve Bank of India was approached by the Duliajan Police Station on 3.7.1997, but the Reserve Bank of India vide communication dated 24.7.1998 informed the Superintendent of Police, Dibrugarh about the inability to exchange the said currency notes as denominations could not be determined. The petitioner/appellant thereafter filed the present petition praying for directing the respondents to refund the said amount of Rs. 9,53,500, which, however, been dismissed by the learned Single Judge vide order dated 18.12.1998. 11. From the narration of the aforesaid facts it, therefore, appears that the amount of Rs. 10,05,000 was kept in deposit with the Dibrugarh Treasury in a sealed box pursuant to the direction issued by a Division Bench of this Court in C.R. (HC) 224 of 1991, which was subsequently been directed to be released in favour of the petitioner/appellant vide order dated 2.5.1997, on being found that the said amount belongs to the petitioner/ appellant, upon enquiry conducted by the learned District Judge. Out of the aforesaid amount, an amount of Rs. 51,500 could only be returned to the petitioner/appellant as the balance currency notes were found in a mutilated condition, exchange of which was also refused by the Reserve Bank of India. 12. Out of the aforesaid amount, an amount of Rs. 51,500 could only be returned to the petitioner/appellant as the balance currency notes were found in a mutilated condition, exchange of which was also refused by the Reserve Bank of India. 12. The amount was kept in deposit with the Dibrugarh Treasury in a sealed box by virtue of the order passed by this Court, and, therefore, the position of the Treasury Officer, Dibrugarh Treasury was like a bailiff of the court. That being the position, a duty was cast on the authority to keep the said property in a good condition, for which if necessary, they ought to have obtained order from the court so that the property can be kept in a good condition and can be handed over to the person in whose favour such direction is issued by the court. It appears that the authorities have failed to discharge their duties of keeping the property in a good condition, which has caused loss to the petitioner/ appellant. It is being the case of the petitioner/appellant that though the money belongs to him, the same was illegally taken away by the army officers and the said version of the petitioner/appellant was also found to be true by the learned District Judge, Dibrugarh, in the enquiry conducted by him pursuant to the direction issued by the High Court, therefore, the action on the part of the respondents in not keeping the property in good condition, cannot be allowed to cause prejudice to the petitioner/appellant, as he was found to be legally entitled to the said amount. The contention of the respondents that as the authorities of the Dibrugarh Treasury were discharging the sovereign powers, the State cannot be made liable for their action, cannot, therefore, be accepted and hence rejected. 13. In M/s. Kasturi Lal Ralia Ram Jain (supra), the Apex Court while dealing with the seizure and disposal of the seized property has held that when the property is seized by the police officers, meticulous care is required to be taken for making a proper list of the property seized, describing it, weighing it, and taking all reasonable steps to ensure its safety. It has further been held that 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. The Apex Court has held that, in that case the action for damages for loss caused to such tortious acts will not lie. 14. The facts in the present case are different. In this case the army officer has compelled the petitioner/appellant to part with the amount, which was found to be belonging to the petitioner/appellant. The said amount was kept in a sealed box in safe custody of the Dibrugarh Treasury and directed to be released, in favour of the petitioner/appellant by the High Court, but the entire amount could not be returned due to the lapses on the part of the authorities. As the said amount was kept under the order of the court with the Treasury, his position is like the position of a bailiff, a duty was cast on the authority to take such further order from the court, so that the property kept in safe custody could be properly preserved which the authority has failed to do. The decision in M/s. Kasturi Lai Ralia Ram Jain (supra) will, therefore, in our considered view not be applicable in the instant case. 15. A Constitution Bench of the hon'ble Supreme Court in Wazir Chand and another (supra) has held that if a seizure of the goods from the possession of the petitioner is made by the authority without any authority of law, it amounts to the infringement of the fundamental rights of such person granted under Article 19 of the Constitution of India. In the said case the Apex Court has directed restoration of the property to such person in an application under Article 226 of the Constitution of India. 16. In the said case the Apex Court has directed restoration of the property to such person in an application under Article 226 of the Constitution of India. 16. The Apex Court in Memon Mahomed Haji Hasam case referring to Mis Kasturi Lai Ralia Ram Jain's case has held that when the property has been seized by the authority it caused an implied obligation on the said authority to preserve the said property intact and for that purpose to take such care of it as a reasonable person in like circumstances is expected to take as there is a legal obligation to preserve the property and the position of such authority would be that of a bailee, as the said property is liable to be returned, if so directed by the court of law. It has further been held that the said authority is bound to return the said property by reasons of its statutory obligation or to pay its value if it had disabled itself from returning it either by its own act or by any act of its agents and servants and under those circumstances it cannot be said that the State Government is not liable for any tortious act of all those servants. In the instant case also the authorities in Dibrugarh Treasury have failed to take reasonable care of the property under their custody by virtue of the court order, though a legal obligation was casted on the said authority to maintain the said property in a good condition. 17. In Kerala State Electricity Board (supra), the Apex Court has held that in an action by way of restitution, no inflexible rule can be laid down. It will be the endeavour of the court to ensure that a party who had suffered on account of decision of the court, since finally reversed, should be put back to the position, as far as practicable, in which he would have been if the decision of the court adversely affecting him had not been passed. It has further been held that in giving full and complete relief in an action for restitution, the court has not only power but also a duty to order for mesne profits, damages, costs, interest, etc., as may deem expedient and fair conforming to justice to be done in the facts of the case. It has further been held that in giving full and complete relief in an action for restitution, the court has not only power but also a duty to order for mesne profits, damages, costs, interest, etc., as may deem expedient and fair conforming to justice to be done in the facts of the case. In deciding appropriate action by way of restitution, the court should take a pragmatic view and frame relief in such a manner as may be reasonable, fair and practicable and does not bring about unmerited hardship to either of the parties. 18. In the instant case, as discussed above, the money, which was kept in deposit with the Dibrugarh Treasury in a sealed box, belonged to the petitioner which he was compelled to part with by the army officer. The Division Bench of this Court passed the order of refund of the said amount on the basis of the submission made by the learned Additional Advocate General that the State has no objection for such refund. As held above, the authorities at Dibrugarh Treasury have also failed to take proper care for preservation of the property under their custody. Therefore, the grounds on which the learned Single Judge has rejected the application that the petitioner/appellant could not prove negligence, is not sustainable in law as well as in facts and circumstances of the instant case and hence, the judgment passed by the learned Single Judge is liable to be interfered with, which we accordingly do. 19. In view of above, we are of the considered view, that the petitioner/appellant is entitled to get refund of Rs. 9,53,500 which was directed to be returned by another Division Bench of this Court, vide order dated 2.5.1997 passed in C.R. (H.C) 224 of 1991, as the learned Counsel appearing for the respondents have fairly submitted that no criminal prosecution or any proceeding under the Income Tax Act or any other legal action have been initiated and pending against the present petitioner/appellant in respect of the said amount. The petitioner/appellant shall also be entitled to interest at the rate of 6 per cent per annum from 2.5.1997, i.e., the date when the said Division Bench of this Court directed release of the said amount, till the date of payment. 20. The petitioner/appellant shall also be entitled to interest at the rate of 6 per cent per annum from 2.5.1997, i.e., the date when the said Division Bench of this Court directed release of the said amount, till the date of payment. 20. The State respondents are directed to pay the said amount with interest to the petitioner/appellant within a period of 3(three) months from today. 21. The Writ Appeal is accordingly allowed. No cost. Appeal allowed.