JUDGMENT Hon’ble Pankaj Naqvi, J.—The petitioner has filed the present writ petition for the following reliefs : (A) issue a writ, order or direction in the nature of writ of mandamus commanding the respondents to open the nozzle of petrol machine of petitioner’s outlet at Thangipur Sakiya Bakiya, Police Station Mehnajpur, District Azamgarh which has been sealed by Tehsildar, Lalganj and House Station Officer, Police Station Mehnajpur, District Azamgarh on 21.8.2003. (B) issue a writ, order or direction in the nature of writ of mandamus commanding the respondents to pay damages of a sum of Rs. 2,88 Lacs/compensation to the petitioner which the petitioner has suffered on account of illegal action of Tehsildar Lalganj and House Station Officer, Police Station Mehnajpur, District Azamgarh by sealing nozzle of petrol and diesel machines of petitioner’s outlet and they may further be directed to pay a sum of Rs. 18,000.00 per month till nozzle of petrol machine of petitioner’s outlet is opened. (C) issue any other appropriate writ, order or direction which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case, and (D) Allow writ petition with cost to the petitioner. 2. The petitioner is a licencee of Indian Oil Corporation, Allahabad and is running an outlet at Thangipur popularly called Sakiya Bakiya, Mehnajpur, District Azamgarh under the name and style of Kamlamar Filling Station (for short ‘the pump’). 3. It is alleged that on 15.9.2002, some antisocial elements harassed and abused the petitioner and took away a sum of Rs. 10,000/- on pistol point, and on 13.6.2003, one Guddu son of Munni Singh resident of village Jiyapur, Police Station Mehnajpur, District Azamgarh got petrol filled in his scooter from the pump and on being asked to pay the price, he threatened the employees of the pump and inflicted injuries upon them. Thereafter, on 14.6.2003, Guddu alongwith his associate Pankaj Singh abused the employees of the petitioner at the pump and threatened them of dire consequences. The petitioner met the Collector, Azamgarh and submitted a complaint dated 14.6.2003 narrating the incident of 13.6.2003 and 14.6.2003. On 21.7.2003, Sri Chandra Shekhar Singh, Station House Officer, Police Station Mehnajpur, District Azamgarh came at about 5 pm at the pump and directed the Manager to get filled ten litres of diesel in his jeep without any payment, lest he would not provide any help. On 21.7.2003, Sri Chandra Shekhar Singh, Station House Officer, Police Station Mehnajpur, District Azamgarh came at about 5 pm at the pump and directed the Manager to get filled ten litres of diesel in his jeep without any payment, lest he would not provide any help. On 22.7.2003, one Mantu and Laxmi Kant came at the pump around 10 am and told the salesman to fill 30 litres of diesel in their tractor. On being asked by the salesman to first bring payment slip from the office, the said two persons assured the salesman that they would get the requisite slip, but in the meanwhile, they may fill the diesel in the tractor. On their assurance the salesman filled 30 litres diesel in the tractor. The said two persons did not pay the price of diesel. On demand, they physically assaulted the Manager - Shri Rajdeo. The petitioner went to the police station to lodge a FIR, but the same was refused and thereafter, he sent an application dated 22.7.2003 to the Commissioner, Azamgarh Division, Azamgarh and the Deputy Inspector General of Police of the region, with copy of the said application to the District Magistrate and the Senior Superintendent of Police and other authorities of the State Government through registered post on 23.7.2003. On the application filed by the petitioner, an inquiry was conducted on 20.8.2003, in which the petitioner and Rajdeo - Manager of the pump gave statements before the Circle Officer, Police Station, Lalganj, Azamgarh, wherein they apprised the authorities about the regular harassment faced by them from the anti social elements of the area and the complete inaction on the part of the Police Station Mehnajpur, District Azamgarh in nabbing the culprits. 4. It is alleged that once again on 21.8.2003, certain anti social elements of the neighbouring village came to the pump in a jeep loaded with two drums, against whom the petitioner had earlier lodged a complaint. These persons wanted to keep the drums in a temporary shade, at the pump. On the objection raised by the employees, they started beating them and in the process Sri Rajdeo, the Manager of the pump suffered serious injuries, whereas other employees suffered minor injuries. All the employees fled from the scene, fearing backlash, except Dharmdeo - cashier, who was taken in captivity, by anti social elements. On the objection raised by the employees, they started beating them and in the process Sri Rajdeo, the Manager of the pump suffered serious injuries, whereas other employees suffered minor injuries. All the employees fled from the scene, fearing backlash, except Dharmdeo - cashier, who was taken in captivity, by anti social elements. Sri Rajdeo was medically examined by the Doctor at Community Health Centre, Lalganj, Azamgarh on 22.8.2003. In the process, the Goonda elements took away mobil oil and a sum of Rs. 5000/- cash. The goonda elements filled petrol and diesel in their bottles also. The entire incident was photographed. 5. It is alleged that S.H.O. of police station Mehnajpur, District Azamgarh, was acting in collusion with the anti social elements. He did not provide any help or support to the petitioner, even though the incident of 21.8.2003 was brought to his notice. On the contrary, the S.H.O., on the dictates of anti social elements, gave false information to the Collector Azamgarh, which made Tehsildar, and the clerk of supply office of Lalganj, District Azamgarh and the police of police station Mehnajpur, District Azamgarh to visit and inspect the filling station and consequently, the Tehsildar, Lalganj lodged a false and fabricated F.I.R. against the petitioner and his employees at police station Mehnajpur, District Azamgarh on 21.8.2003. Pursuant to the F.I.R. dated 21.8.2003 the police registered case crime No. 227 of 2003 against the petitioner and his employees, under Section 420 IPC and Paragraph 3 (1), of the Solvent, Raffinate and Slop (Acquisition, Sale, Storage and Prevention of Use in Automobiles) Order, 2000 (hereinafter referred to as ‘Control Order 2000’). The Tehsildar and Police authorities sealed the he nozzles of petrol and diesel dispensing units of the pump on 21.8.2003. On 24.8.2003, the petitioner apprised the Collector, Azamgarh of the aforesaid illegal action of the Tehsildar and the police authorities for sealing the pump. The In-charge of Police Station, Mehnajpur, District Azamgarh opened the nozzle of the diesel dispensing unit on 25.8.2003, but nozzle of petrol dispensing came to be opened only on 17.9.2003 after filing of the writ petition on 2.9.2003, and in which the Court on 5.9.2003 directed the State counsel to obtain instructions. 6. The In-charge of Police Station, Mehnajpur, District Azamgarh opened the nozzle of the diesel dispensing unit on 25.8.2003, but nozzle of petrol dispensing came to be opened only on 17.9.2003 after filing of the writ petition on 2.9.2003, and in which the Court on 5.9.2003 directed the State counsel to obtain instructions. 6. The Tehsildar, Lalganj, District Azamgarh has tried to justify the action of the respondents in sealing the nozzles of petrol/diesel dispensing units under the provisions of Petroleum Act, 1934, Rule 198 of the Petroleum Rules, 2002, the provisions of Code of Criminal Procedure, 1973 and the Control Order of 2000. The respondents have also place reliance on the Government Order dated 13.9.2000. It is stated that while the search and seizure was on, they examined one Shri Dharamdeo, who happened to be a cashier at the pump and, who, in his statement, stated that jeep No. U.P. 65 4715 had brought 4 drums of solvent. Three of these drums were thrown in water, but as the crowd gathered one of the drum could not be thrown away. Shri Dharamdeo is alleged to have stated that usually this solvent is poured and mixed in the tank, after which, it is sold to the customer. Shri Dharamdeo is also alleged to have given a signed statement, copy whereof has been filed as Annexure CA 3 to the counter-affidavit. It was further stated that separate samples of petrol and solvent, which were found in the drum, were taken and it were sealed. One of the sealed sample was given to the cashier Shri Dharamdeo, who received it by appending his signature. 8. In the rejoinder-affidavit it is stated that the alleged statement of Shri Dharamdeo has been prepared to justify the illegal action. There are no signatures of Shri Dharamdeo on the said document. The number of the alleged jeep, which is reported to have brought the loaded material in two drums was not disclosed in the FIR, lest the identity of the owner would be disclosed. It was categorically denied by the petitioner that neither he nor his employees, ever brought any solvent so as to mix it with petrol. The number of the alleged jeep, which is reported to have brought the loaded material in two drums was not disclosed in the FIR, lest the identity of the owner would be disclosed. It was categorically denied by the petitioner that neither he nor his employees, ever brought any solvent so as to mix it with petrol. A contradiction in the averments given in the FIR and that of the statement of Shri Dharamdeo was also highlighted, in as much as, the FIR states that the solvent was poured in a ‘nali’ after breaking a wall, whereas in the alleged statement, it was stated that the solvent was poured in water. It was further stated that any statement given to the police, even if it is signed, is inadmissible evidence and, therefore, no reliance can be placed on it. It further states that the State Government has issued G.O. dated 25.3.1997 providing guidelines as to how inspection of pumps and testing of samples is to be carried out. Shri Dharamdeo is alleged to have given a statement in captivity, his signatures may have been obtained on the alleged sample during police custody and that the alleged signature of Shri Dharamdeo on his statement do not bear any date and complete details of the nature of containers and quantity of sample. As per the guidelines, testing is to be made at the pump, but no spot testing, was carried out. However, when the petitioner met the Additional District Magistrate on 17.9.2003 and apprised him that there was no power to seal the petrol pump, Sri Chandra Shekhar Singh, Station House Officer, Police Station Mehnajpur, District Azamgarh handed over key and opened the nozzle of petrol pump on 17.9.2003. 9. It is submitted by Sri Ram Niwas Singh, learned counsel for the petitioner that the entire action of the Tehsildar and the police authorities in sealing the petrol and diesel nozzles is absolutely illegal and the same does not have any sanction of law, as neither under the Code of Criminal Procedure, 1973, nor the Control Order 2000, such a power is vested in the authorities to stop a running business. He further submits that the procedure for search and seizure, as provided in paragraph 4 of the Control Order 2000 was not followed and that the authorised officer has neither recorded any reason in writing, nor has furnished any copy of the same to the petitioner and similarly, the provisions of section 100 Cr.P.C. relating to search and seizure were not followed. He further submits that the Tehsildar and other officers did not take any sample as provided in paragraph 5 of the control order and that no signature either of the petitioner or his representative was ever obtained. 10. Learned counsel for the petitioner further submits that as nozzles of petrol and diesel dispensing units were illegally sealed on 21.8.2003. The nozzle of diesel machine was opened on 25.8.2003, on which the petitioner suffered a loss of Rs. 4000/- per day from 21.8.2003 to 25.8.2003, as the sales of diesel and petrol was completely stopped on account of sealing of nozzles of petrol and diesel dispensing units. He submits that daily sales of petrol and diesel were about 600 kilolitres per day respectively and thus the petitioner was suffering a loss of Rs. 4000/- per day. After 20.8.2003, the petitioner is suffering a loss of Rs. 3000/- per day on account of seal in the nozzle of the petrol dispensing unit. He submits that the petitioner suffered a loss to the tune of Rs. 20,000/- from 21.8.2003 to 25.8.2003, and a loss of Rs. 1800/- per day for a period from 26.8.2003 to 31.8.2003 and continued to suffer a loss of Rs. 3000/- daily, till the nozzle of petrol machine of the petitioner’s outlet was opened on 17.9.2003. 11. Learned counsel for the petitioner would finally submit that on the facts of the present case exemplary compensation/damages are liable to be awarded as against the respondents for having taken recourse to the sealing of petrol and diesel nozzles, which did not have any sanction of law. 12. In reply, we have heard learned standing counsel appearing for the respondents. 13. The core issue to be examined is as to whether the action of the respondents in sealing the petrol and diesel nozzles of the dispensing units can be justified under law. 12. In reply, we have heard learned standing counsel appearing for the respondents. 13. The core issue to be examined is as to whether the action of the respondents in sealing the petrol and diesel nozzles of the dispensing units can be justified under law. The relevant provisions pertaining to seizure of property is contained in Section 102 Cr.P.C. wherein it is provided that any police officer may seize any property, which may be alleged or suspected to have been stolen or, which may be found under circumstances, which creates suspicion of commission of any offence. It is further provided that such a police officer, if subordinate to the Officer-in-charge of a police station, shall forthwith report the seizure to that officer. Correspondingly, every police officer while exercising such power shall forthwith report the seizure to the Magistrate having jurisdiction and whether the property seized is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond. 14. Rule 198 of the Petroleum Rules, 2002 are extracted herein below : “Rule 198—Power to enter, inspect, search and seize.—(1) Any officer specified in column (1) of the table below may within the jurisdiction specified in the corresponding entry in column 2 of the said table - (a) enter, inspect and search any place where he has reason to believe that any petroleum is being imported, transported, stored, produced, refined or blended or is under transport and inspect all receptacles, plants and appliances used in connection therewith in order to ascertain if they are in accordance with provisions of the Act and of these rules; (b) search for petroleum therein. (c) take samples for testing of any petroleum found therein and make payments by cash for value of samples taken and (d) seize, detain and remove any petroleum or any material suspected to be petroleum or any equipment or appliances used therein with connected documents thereof in respect of which he has reasons to believe that any of the provisions of the act or of these rules have been contravened. (2) Whenever any officer other than the Chief Controller, seizes, detains, or removes any petroleum or any connected documents thereof under this rule, he shall forthwith report the fact by telegarm to the Chief Controller and Controller having jurisdiction over the place where seizure etc. (2) Whenever any officer other than the Chief Controller, seizes, detains, or removes any petroleum or any connected documents thereof under this rule, he shall forthwith report the fact by telegarm to the Chief Controller and Controller having jurisdiction over the place where seizure etc. has taken place and whenever any officer not being the district authority seizes, detains or removes any petroleum or any material connected therewith or any connected documents thereof under this rule, he shall intimate the facts of the case to the Chief Controller and the Controller having jurisdiction. (3) Whenever any samples are taken in accordance with this rule, they shall be tested in accordance with the relevant provisions of Chapter X of these rules. (4) Whenever any petroleum is seized under this rule, it shall be stored, under adequate guard until examination by Chief Controller or Controller and receipt of instructions from him as to its disposal. (5) Whenever searches are made under the rule the same shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). All officers of the police and district authorities shall assist the Chief Controller in the execution of the act and rules. (6) Whenever any person by himself or any person in his employment voluntarily obstructs or offers any resistance to or otherwise interferes will or refuses or fails to give or wilfully gives false or misleading information to the officer duly appointed under this rule who is acting in accordance with his duty thereunder such person shall be deemed to have committed an offence under the Act.” 15. Similarly, the provisions of Rules 4 and 5 of the Solvent, Raffinate and Slop (Acquisition, Sale, Storage and Prevention of Use in Automobiles) Order, 2000 in so far as it is relevant for the purposes of present case are extracted hereinbelow : “4. Similarly, the provisions of Rules 4 and 5 of the Solvent, Raffinate and Slop (Acquisition, Sale, Storage and Prevention of Use in Automobiles) Order, 2000 in so far as it is relevant for the purposes of present case are extracted hereinbelow : “4. Power of search and seizure.—(1) Any Gazetted Officer of the Central or the State Government or any police officer not below the rank of Deputy Superintendent of Police duly authorised, by general of special order by the Central or the State Government or any officer of a Government oil company or any other oil company authorised by the Central Government, not below the rank of Sales Officer may with a view to securing compliance with the provisions of this Order, or for the purpose of satisfying himself that this Order or any order made thereunder has been complied with - (a) enter and search any place or premises being used or suspected to be used in the business of the dealer, transporter, consumer or any other person who is an employee or agent of such dealer, transporter, consumer with respect to which there is reason to believe that the provisions of this order have been or are being or are about to be contravened; (b) stop and search any person or vehicle or receptacle used or intended to be used for the movement of the product or using or receiving the product in contravention of this order; (c) inspect any book of accounts or other documents or any stock of the product used or suspected to be used in this business of this dealer, transporter, consumer or any other person suspected to be an employee or agent of the dealer, transporter or consumer; (d) take samples of the product and seizes any of the stocks of the product which the officer has reason to believe has been or is being or is about to be used in contravention of this Order and thereafter take or authorized the taking of all measures necessary for securing the production of stocks or items so seized before the Collector having jurisdiction under the provisions of the Essential Commodities Act, 1955 and for their safe custody pending such production. (2) While exercising the power of seizure provided under sub-clause (d) of clause (1), the authorised officer shall record in writing the reasons for doing so, a copy of which shall be given to the dealer, transporter, consumer or any other concerned person. (3) The provisions of section 100 of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure shall, as far as may be, apply to searches and seizures under this Order 5. Sampling of Product.—(1) The officer authorised in clause 4 shall draw the sample from the tank, nozzle, vehicle or receptacle, as the case may be, to check whether the provisions of this Order are being or likely to be contravened. (2) The officer authorised in clause 4 shall take, sign and seal three samples of 750 ml to 1 litre each of the product, one to be given to the concerned person under acknowledgement with instructions to preserve the sample in his safe custody till the testing and investigations are complete, the second sample shall to be kept by the concerned oil company or Department and the third to be used for laboratory analysis. (3) The samples shall be taken in clean glass or aluminium containers and no plastic containers shall be used for drawing samples. (4) The sample label should be jointly signed by the officer who has drawn the sample, and the concerned person or is representative and the label shall contain information as regards the product, place of seizure, quantity of sample, data, name and signature of the concerned person or his representative. (5) The authorised officer shall send the third sample of the product taken under sub-clause (2), within a period of ten days, to any of the laboratories specified in Schedule III of the Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998 for the purpose of analysis of samples to check the product.” 16. The impugned action of sealing the nozzles cannot be justified under Section 102 Cr.P.C., in as much as, the seizure is to be of a property, which creates suspicion of commission of any offence. Going by the allegations in the FIR, it is alleged that the solvent had been brought in the drums to be mixed with petrol/diesel. The impugned action of sealing the nozzles cannot be justified under Section 102 Cr.P.C., in as much as, the seizure is to be of a property, which creates suspicion of commission of any offence. Going by the allegations in the FIR, it is alleged that the solvent had been brought in the drums to be mixed with petrol/diesel. Assuming the allegations made in the FIR to be, prima facie, true, the seizure, if any, could have been either of the alleged sample of the solvent or of any other property, which could have created a suspicion that the same was also involved in the commission of any offence. The power to seal the nozzles of petrol and diesel of a running pump cannot be culled out from the language used in Section 102 Cr.P.C. 17. A careful scrutiny of Rule 198 and in particular clause (d) of the Petroleum Rules would reveal that the power to seize, detain and remove is confined to any petroleum or any material suspected to be petroleum or any equipment or appliances used therein with connected documents thereof in respect of which the designated officer has reasons to believe that any of the provisions of the Act or of these Rules have been contravened. A procedural safeguard of considerable significance has been provided under Rule 198 (2) wherein it is provided that upon a seizure, detention or removal of any petroleum or any material connected therewith or any connected documents thereof shall be forthwith reported by a telegram to the Chief Controller and Controller having jurisdiction over a place where the seizure etc. has taken place and whenever any officer, not being the district authority, seizes, detains or removes any petroleum or any material connected therewith or any connected documents thereof, he shall intimate the facts of the case to the Chief Controller and Controller having jurisdiction. Similarly, under Rule 198 (3) it is provided that the sample taken shall be tested in accordance with the relevant provisions of Chapter X of these Rules. Chapter X provides an elaborate procedure as to how the sample would be obtained. 18. The language used in rule 198 (d) is clear and unambiguous that only those appliances in respect of which the designated officer has reasons to believe, that the provisions of the Act and the Rules have been contravened, are subjected to seizure. Chapter X provides an elaborate procedure as to how the sample would be obtained. 18. The language used in rule 198 (d) is clear and unambiguous that only those appliances in respect of which the designated officer has reasons to believe, that the provisions of the Act and the Rules have been contravened, are subjected to seizure. In this case there is no allegation in the FIR that the appliances such as petrol and diesel nozzles were used to commit the infringement of Control Order 2000 so as to justify the sealing of the petroleum and diesel nozzles. 19. A careful scrutiny of Clause 4 of the Control Order 2000 and in particular sub-clause (d) would indicate that seizure can be of the stock of the product, which the designated officer has reasons to believe that the same has been or is being or is about to be used in contravention of this order. Thus, in the Control Order 2000 the seizure can be only of the stock of the product. The nozzles of petroleum and diesel pumps cannot be said to be the stock of the product. 20. A safe guard to check the arbitrary exercise of seizure under this order, is provided under clause 4 (d) (2) of the Control Order 2000 wherein the authorized officer is under a statutory mandate to record reasons, in writing, for doing so and a copy of the same is to be given to the dealer or any other concerned person. The petitioner has averred in paragraphs 14 and 19 of the writ petition that while exercising the power of seizure, the authorised officer neither recorded any reasons, nor did gave the dealer a copy thereof. The said averments have been vaguely denied in paragraphs 13 and 19 of the counter-affidavit. The, non-recording of reasons is admitted to the respondents. 21. The petitioner has averred in paragraphs 14 and 19 of the writ petition that while exercising the power of seizure, the authorised officer neither recorded any reasons, nor did gave the dealer a copy thereof. The said averments have been vaguely denied in paragraphs 13 and 19 of the counter-affidavit. The, non-recording of reasons is admitted to the respondents. 21. We have carefully examined the G.O. dated 13.9.2000 and are of the view that the power to seal petroleum and diesel nozzles is not culled out even under the said G.O. Clause (b) of paragraph 4 (1) of the G.O. is quoted hereinbelow : “4- (1) jkT; ljdkj dk dksbZ jktif=r vf/kdkjh ;k ljdkj ds lk/kkj.k ;k fo’ks"k vkns’k }kjk lE;d #i ls izkf/kd`r dksbZ iqfyl da mi v/kh{kd ls uhps dh jSad dk u gks] ;k jkT; ljdkj }kjk izkf/kd`r ljdkjh rsy dEiuh ;k rsy dEiuh dk dksbZ ,slk vf/kdkjh tks fodz; vf/kdkjh ls uhps dh jSad dk u gks] bl vkns’k ds micU/kksa dks vuqikyu lqfuf’pr djus ds fopkj ls ;k Lo;a dk og lek/kku djus ds iz;kstu ds fy, fd bl vkns’k dk ;k blds v/khu fd;s x;s fdlh vkns’k dk vuqikyu fd;k tk jgk gS% & (d) .................................. ([k) fdlh ,sls O;fDr dks] tks bl vkns’k ds mYYka/ku esa mRikn dk mi;ksx ;k mls izkIr dj jgk gS ;k ,sls ;ku ;k ik= dks tks mRikn dks b/kj&m/kj djus ds mi;ksx fd;k x;k gS] ;k mi;ksx djus ds fy, vk’kf;r gS] jksd ldsxk vkSj ryk’kh ys ldsxkA” 22. A perusal of the aforesaid G.O. (Annexure CA 2) read with the aforesaid clause would reveal that a power has been conferred upon any Gazetted Officer or any officer, who has been authorized by a general or a special order i.e. police officer not below the rank of Up Adhishak or oil company, nominated by the State Government or a representative of the oil company, not below the rank of a sales officer to carry out the duties assigned under the G.O. 23. Further, a perusal of clause (b) of paragraph 4 of the G.O. would indicate that the power has been conferred upon the aforesaid officers to prohibit the contravention of the Control Order, if the person is found using the product or is receiving the same in a receptacle or a container. Further, a perusal of clause (b) of paragraph 4 of the G.O. would indicate that the power has been conferred upon the aforesaid officers to prohibit the contravention of the Control Order, if the person is found using the product or is receiving the same in a receptacle or a container. The sealing of nozzles cannot be brought within the prohibition of clause (b) of paragraph 4 of the G.O. 24. Accordingly, we are of the view that sealing of petrol and diesel nozzles of a running pump did not have sanction of law and, therefore, the entire action of the respondents in sealing the same was absolutely illegal and without jurisdiction. 25. Now, before deciding what compensation/damages, if any, can be awarded for illegal sealing of nozzles, another issue of considerable importance would arise as to whether for the tortious act committed by the respondents a sovereign immunity can be claimed by the respondents. 26. The Apex Court in Smt. Bhuri Bai (Dead) By LRS. and others v. State of Madhya Pradesh, 1987 (Supp) SCC 690, has held that seizure under statutory provision cannot be described as a sovereign act. The Apex Court had taken note of a judgment of Apex Court itself, Kasturi Lal v. State of U.P., AIR 1965 SC 1039 , wherein it was held that if a tortious act had been committed by a public servant in discharge of duties assigned to him not by virtue of delegation of any sovereign power, an action for damages would lie. 27. The Apex Court in N. Nagendra Rao & Co. v. State of A.P., (1994) 6 SCC 205 , had an occasion to consider as to what are the sovereign functions of the State and whether a sovereign immunity would be available while exercising statutory powers. Relevant paragraphs 27, 30, 31 and 33 thereof are extracted hereinbelow : “27. A law may be made to carry out the primary or inalienable functions of the State. Criminal Procedure Code is one such law. A search or seizure effected under such law could be taken to be an exercise of power which may be in domain of inalienable function. Whether the authority to whom this power is delegated is liable for negligence in discharge of duties while performing such functions is a different matter. Criminal Procedure Code is one such law. A search or seizure effected under such law could be taken to be an exercise of power which may be in domain of inalienable function. Whether the authority to whom this power is delegated is liable for negligence in discharge of duties while performing such functions is a different matter. But when similar powers are conferred under other statute as incidental or ancillary power to carry out the purpose and objective of the Act, then it being an exercise of such State function which is not primary or inalienable, an officer acting negligently is liable personally and the State vicariously. Maintenance of law and order or repression of crime may be inalienable function, for proper exercise of which the State may enact a law and may delegate its functions, the violation of which may not be sueable in torts, unless it trenches into and encroaches on the fundamental rights of life and liberty guaranteed by the Constitution. But that principle would not be attracted where similar powers are conferred on officers who exercise statutory powers which are otherwise than sovereign powers as understood in the modem sense. The Act deals with persons indulging in hoarding and black marketing. Any power for regulating and controlling the essential commodities and the delegation of power to authorised officers to inspect, search and seize the property for carrying out the object of the State cannot be a power for negligent exercise of which the State can claim immunity. No constitutional system can, either on State necessity or public policy, condone negligent functioning of the State or its officers. The rule was succinctly stated by Lord Blackburn in Geddis v. Proprietors of Bonn Reservoir, (1878) 3 AC 430, 435: “No action will lie for doing that which the Legislature has authorised, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the Legislature has authorised if it be done negligently.” 30. In this case after conclusion of proceedings the authorities intimated the appellant to take the goods as they having not been confiscated, he was entitled for return of it. The appellant in response to the intimation went there but it refused to take delivery of it as, according to it, the commodity had deteriorated both in quality and quantity. In this case after conclusion of proceedings the authorities intimated the appellant to take the goods as they having not been confiscated, he was entitled for return of it. The appellant in response to the intimation went there but it refused to take delivery of it as, according to it, the commodity had deteriorated both in quality and quantity. This claim has been accepted by the lower Courts. What was seized by the authority was an essential commodity within the meaning of clause (d) of sub-section (2) [sic Section 2(a)]. What the law requires under sub-section (2) of Section 6-C to be returned is also the essential commodity. Any commodity continues to be so, so long as it retains its characteristic of being useful and serviceable. If the commodity ceased to be of any use or is rendered waste due to its deterioration or rusting, it ceases to be commodity much less essential commodity. Therefore, if the commodity of the appellant which was seized became useless due to negligence of the officers it ceased to be an essential commodity and the appellant was well within its rights to claim that since it was not possible for the authorities to return the essential commodity seized by them, it was entitled to be paid the price thereof as if the essential commodity had been sold to the Government. The fiction of sale which is incorporated in sub-section (2) is to protect the interest of the owner of the goods. It has to be construed liberally and in favour of the owner. The respondents were thus liable to pay the price of the fertiliser with interest, as directed by the trial Court. 31. In State of Gujarat v. Memon Mahomed Haji Hasam, AIR 1967 SC 1885 : (1967) 3 SCR 938 , where the confiscation by the customs authorities was set aside in appeal and the goods were directed to be returned which order could not be complied as the goods had been disposed of under order of a Magistrate passed under Section 523 of Criminal Procedure Code, it was held by this Court that the suit for recovery of the goods or value thereof was maintainable and it was held (SCR pp. 944-45 : AIR pp. 944-45 : AIR pp. 1888- 89, para 7) “On the facts of the present case, the State Government no doubt seized the said vehicles pursuant to the power under the Customs Act. But the power to seize and confiscate was dependent upon a customs offence having been committed or a suspicion that such offence had been committed. The order of the Customs Officer was not final as it was subject to an appeal and if the appellate authority found that there was no good ground for the exercise of that power, the property could no longer be retained and had under the Act to be returned to the owner. That being the position and the property being liable to be returned there was not only a statutory obligation to return but until the order of confiscation became final an implied obligation to preserve the property intact and for that purpose to take such care of it as a reasonable person in like circumstances is expected to take. Just as a finder of property has to return it when its owner is found and demands it, so the State Government was bound to return the said vehicles once it was found that the seizure and confiscation were not sustainable. There being thus a legal obligation to preserve the property intact and also the obligation to take reasonable care of it so as to enable the Government to return it in the same condition in which it was seized, the position of the State Government until the order became final would be that of a bailee. If that is the correct position once the Revenue Tribunal set aside the order of the Customs Officer and the Government became liable to return the goods the owner had the right either to demand the property seized or its value, if, in the meantime the State Government had precluded itself from returning the property either by its own act or that of its agents or servants. This was precisely the cause of action on which the respondent’s suit was grounded. The fact that an order for its disposal was passed by a Magistrate would not in any way interfere with or wipe away the right of the owner to demand the return of the property or the obligation of the Government to return it.” 33. This was precisely the cause of action on which the respondent’s suit was grounded. The fact that an order for its disposal was passed by a Magistrate would not in any way interfere with or wipe away the right of the owner to demand the return of the property or the obligation of the Government to return it.” 33. Therefore, where the goods confiscated or seized are required to be returned either under orders of the Court or because of the provision in the Act, this Court has not countenanced the objection that the goods having been lost or destroyed the owner of the goods had no remedy in private law and the Court was not empowered to pass an order or grant decree for payment of the value of goods. Public policy requires the Court to exercise the power in private law to compensate the owner where the damage or loss is suffered by the negligence of officers of the State in respect of cause of action for which suits are maintainable in civil Court. Since the seizure and confiscation of appellant’s goods was not in exercise of power which could be considered to be act of State of which no cognizance could be taken by the civil Court, the suit of the appellant could not be dismissed. In either view of the matter, the judgment and order of the High Court cannot be upheld.” 28. The Apex Court in the case of Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787 , held in paragraphs 8 and 11 as under : “8. Having examined the wide reach of the Act and jurisdiction of the Commission to entertain a complaint not only against business or trading activity but even against service rendered by statutory and public authorities the stage is now set for determining if the Commission in exercise of its jurisdiction under the Act could award compensation and if such compensation could be for harassment and agony to a consumer. Both these aspects specially the latter are of vital significance in the present day context. Still more important issue is the liability of payment. That is, should the society or the tax payer be burdened for oppressive and capricious act of the public officers or it be paid by those responsible for it. Both these aspects specially the latter are of vital significance in the present day context. Still more important issue is the liability of payment. That is, should the society or the tax payer be burdened for oppressive and capricious act of the public officers or it be paid by those responsible for it. The administrative law of accountability of public authorities for their arbitrary and even ultra vires actions has taken many strides. It is now accepted both by this Court and English Courts that the State is liable to compensate for loss or in’ jury suffered by a citizen due to arbitrary actions of its employees. In State of Gujarat v. Memon Mahomed Haji Hasam, AIR 1967 SC 1885 : (1967) 3 SCR 938 the order of the High Court directing payment of compensation for disposal of seized vehicles without waiting for the outcome of decision in appeal was upheld both on principle of bailee’s ‘legal obligation to preserve the property intact and also the obligation to take reasonable care of it ... to return it in the same condition in which it was seized’ and also because the Government was, ‘bound to return the said property by reason of its statutory obligation or to pay its value if it had disabled itself from returning it either by its own act or by act of its agents and servants’. It was extended further even to bona fide action of the authorities if it was contrary to law in Lala Bishambar Nath v. Agra Nagar Mahapalika, Agra, (1973) 1 SCC 788 : AIR 1973 SC 1289 . It was held that where the authorities could not have taken any action against the dealer and their order was invalid, ‘it is immaterial that the respondents had acted bona fide and in the interest of preservation of public health. Their motive may be good but their orders are illegal. They would accordingly be liable for any loss caused to the appellants by their action.’ The theoretical concept that King can do no wrong has been abandoned in England itself and the State is now held responsible for tortuous act of its servants. Their motive may be good but their orders are illegal. They would accordingly be liable for any loss caused to the appellants by their action.’ The theoretical concept that King can do no wrong has been abandoned in England itself and the State is now held responsible for tortuous act of its servants. The First Law Commission constituted after coming into force of the Constitution on liability of the State in tort, observed that the old distinction between sovereign and non- sovereign functions should no longer be invoked to determine liability of the State. Friedmann observed: “It is now increasingly necessary to abandon the lingering fiction of a legally indivisible State, and of a feudal conception of the Crown, and to substitute for it the principle of legal liability where the State, either directly or through incorporated public authorities, engages in activities of a commercial, industrial or managerial character. The proper test is not an impracticable distinction between Governmental and nonGovernmental function, but the nature and form of the activity in question.” Even Kasturi Lal Ralia Ram Jain v. State of U.P., AIR 1965 SC 1039 : (1965) 1 SCR 375 : (1966) 2 LLJ 583 did not provide any immunity for tortuous acts of public servants committed in discharge of statutory function if it was not referable to sovereign power. Since house construction or for that matter any service hired by a consumer or facility availed by him is not a sovereign function of the State the ratio of Kasturi Lal, AIR 1965 SC 1039 : (1965) 1 SCR 375 : (1966) 2 LLJ 583 could not stand in way of the Commission awarding compensation. We respectfully agree with Mathew, J. in Shyam Sunder v. State of Rajasthan, (1974) 1 SCC 690 , that it is not necessary, ‘to consider whether there is any rational dividing line between the so-called sovereign and proprietary or commercial functions for determining the liability of the State’ (SCC p. 695, para 20). In any case the law has always maintained that the public authorities who are entrusted with statutory function cannot act negligently. In any case the law has always maintained that the public authorities who are entrusted with statutory function cannot act negligently. As far back as 1878 the law was succinctly explained in Geddis v. Proprietors of Bann Reservoir, (1878) 3 AC 430 thus: “I take it, without citing cases, that it is now thoroughly well established that no action will lie for doing that which the Legislature has authorised, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing what the Legislature has authorised, if it be done negligently.” Under our Constitution sovereignty vests in the people. Every limb of the constitutional machinery is obliged to be people oriented. No functionary in exercise of statutory power can claim immunity, except to the extent protected by the statute itself. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour before authorities created under the statute like the commission or the Courts entrusted with responsibility of maintaining the rule of law. Each hierarchy in the Act is empowered to entertain a complaint by the consumer for value of the goods or services and compensation. The word compensation’ is again of very wide connotation. It has not been defined in the Act. According to dictionary it means, ‘compensating or being compensated; thing given as recompense;’. In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Commission has been vested with the jurisdiction to award value of goods or services and compensation it has to be construed widely enabling the Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. The provision in our opinion enables a consumer to claim and empowers the Commission to redress any injustice done to him. Any other construction would defeat the very purpose of the Act. The Commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him. 11. Today the issue thus is not only of award of compensation but who should bear the brunt. The concept of authority and power exercised by public functionaries has many dimensions. 11. Today the issue thus is not only of award of compensation but who should bear the brunt. The concept of authority and power exercised by public functionaries has many dimensions. It has undergone tremendous change with passage of time and change in socioeconomic outlook. The authority empowered to function under a statute while exercising power discharges public duty. It has to act to subserve general welfare and common good. In discharging this duty honestly and bona fide, loss may accrue to any person. And he may claim compensation which may in circumstances be payable. But where the duty is performed capriciously or the exercise of power results in harassment and agony then the responsibility to pay the loss determined should be whose? In a modem society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result. The culture of window clearance appears to be totally dead. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match the inaction in public oriented departments gets frustrated and it erodes the credibility in the system. Public administration, no doubt involves a vast amount of administrative discretion which shields the action of administrative authority. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under protective cover. When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power and the National Commission finds it duly proved then it has a statutory obligation to award the same. It was never more necessary than today when even social obligations are regulated by grant of statutory powers. The test of permissive form of grant is over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. When the Court directs payment of damages or compensation against the State the ultimate sufferer is the common man. The test of permissive form of grant is over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. When the Court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payers’ money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries.” 29. Similarly, Director General of Income Tax and another v. Diamondstar Exports Ltd. and others, (2006) 5 SCC 564 , the Apex Court granted interest on the value of goods found by the Court to have been illegally seized and the appellants therein i.e. Director General of Income Tax was directed to compensate the respondents by way of costs after the High Court had held that search and seizure were invalid and illegal. 30. The legal position, which flows from the analysis of the judgments, is that powers can be exercised in an appropriate case to compensate a person, who has suffered a loss or damage on account of negligence of an officer of the State. 31. Now, the only issue remains as to what relief is to be granted to the petitioner. The petitioner has claimed liquidated damages to the tune of Rs. 2.88 Lacs as compensation, which the petitioner had suffered on account of illegal sealing of nozzles and further, a sum of Rs. 18,000/- per month till the opening of the nozzle of the dispensing unit, which ultimately came to be opened on 17.9.2003. 32. Under Article 226 of the Constitution of India we have limitations in assessing and quantifying the liquidated damages as the same involves investigation of facts and evidence. 18,000/- per month till the opening of the nozzle of the dispensing unit, which ultimately came to be opened on 17.9.2003. 32. Under Article 226 of the Constitution of India we have limitations in assessing and quantifying the liquidated damages as the same involves investigation of facts and evidence. However, on the facts of this case, once it has been established that sealing of petrol and diesel nozzles did not have sanction of law and the matter is pending for nine years, the petitioner deserves to be granted damages for the tortious act committed by the respondents. We thus, grant a lump sum compensation of Rs. One Lac to be paid by the State of U.P. within three months. As the erring officials are not before us in their personal capacity, we, refrain from making any comments, on their conduct and leave it open for the State Government to recover the damages from them, in accordance with law. 33. The writ petition is allowed with costs assessed at Rs. 25,000/-. ———————