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2015 DIGILAW 694 (GAU)

Anwar Hussain v. Union of India and Ors.

2015-06-05

N.CHAUDHURY

body2015
1. This First Appeal has been preferred against the judgment and decree dated 22.7.2008, whereby the learned Civil Judge, Sonitpur dismissed the Money Suit No.21 of 2005 holding that the plaintiff's suit is barred by limitation. 2. One Md. Anowar Husain as plaintiff instituted Money Suit No.21 of 2005 in the Court of learned Civil Judge, Sonitpur at Tezpur on 21.11.2005 stating that his Maruti Van registered vide No.AS-12/7869 was forcibly seized by officer-in-charge of E 'Coy' of 5 Assam Rifles, Basseria on 6.5.2001 and the same met with an accident on 10.5.2001. The defendant No.5 who was allegedly driving the vehicle at that time informed Babejia police Outpost of Tezpur Police Station about the accident in this regard and lodged an FIR on 10.5.2001. Having come to know about the accident of his vehicle the plaintiff submitted application dated 11.5.2001 before the Deputy Commissioner, Tezpur and asked for getting the vehicle examined by MVI, Tezpur. But, the deputy Commissioner did not take any action. However, the Deputy Commissioner got the vehicle towed to the workshop of New India Motors at Tezpur on 11.7.2001 and thereupon, MVI Tezpur examined the damage and estimated reasonable expanses for repair at Rs.98,545 by his communication dated 29.2.2002. The vehicle since thereafter has been lying in the aforesaid garage without releasing the vehicle in favour of the plaintiff. The plaintiff had reason to believe that the vehicle was requisitioned for Army Counter Insurgency operation and that is why the plaintiff served notice under section 80 of the Code of Civil Procedure upon Union of India on 20.5.2002. The Deputy Commissioner, Sonitpur also wrote a letter to the Commanding Officer of 5 Army Rifles at Chariduar for doing the needful. Thereafter, the Director General of Assam Rifles by letter dated 1.10.2002 informed the pleader of the plaintiff that the vehicle had been taken by the Government and the matter is pending before the District Collector, Sonitpur. Upon such revelation the plaintiff issued a fresh notice under section 80 of the Code of Civil Procedure on 5.9.2005 under registered cover and as there was no response from the side of the Government, instituted the suit for realization of compensation to the tune of Rs.6,78,225 along with interest and compensation, etc. 3. Upon such revelation the plaintiff issued a fresh notice under section 80 of the Code of Civil Procedure on 5.9.2005 under registered cover and as there was no response from the side of the Government, instituted the suit for realization of compensation to the tune of Rs.6,78,225 along with interest and compensation, etc. 3. The defendant No.3 submitted written statement on behalf of defendant Nos.1 to 5 and stated in paragraph 13 thereof that the vehicle had been officially requisitioned by the District Administration for counter insurgency duties vide requisition book No.33 of Serial No.1609/01. The vehicle was under custody of the Army for 4 days for performing counter insurgency duties but driving of the same by defendant No.5 was denied. 4. The Deputy Commissioner submitted a written statement on behalf of the defendant No.6 denying any liability to make payment of compensation. It is stated in paragraph 12 of the written statement that the vehicle met with a road accident and it was reportedly driven by defendant No.5 as per certificate of Captain Vipin Chopra O.C. 'E' Coy and FIR was lodged in this regard on 10.5.2001 by the defendant No.5. However, in paragraph 14 of this written statement, the defendant No.6 denied to have towed the vehicle to the workshop and denied to have obtained estimate on 11.7.2001 or any other date. This defendant, however, admitted that upon receipt of notice from the plaintiff a communication was made to the defendant Nos.1 to 5 for doing the needful. 5. The learned trial court after consideration of all the pleadings of the parties framed as many as 7 issues as follows : "(1) Whether the suit is maintainable? (2) Whether this court has jurisdiction to entertain the suit? (3) Whether there is any cause of action for the suit? (4) Whether the suit is bad for non-joinder and mis-joinder of parties? (5) Whether the defendant N6.4 illegally and forcibly seized plaintiff's vehicle Maruti Van No.As-12/7869 and caused damage to it and failed to return it in as it is condition till the date of filing of the plaint? (6) Whether the plaintiff is entitled to the relief/s claimed in the suit? (7) To what relief/s are the parties entitled?" 6. In course of trial the plaintiff examined himself as PW1 and exhibited some documents. One Major Jaideep Krishan was examined by defendant Nos.1 to 5 as DW1. (6) Whether the plaintiff is entitled to the relief/s claimed in the suit? (7) To what relief/s are the parties entitled?" 6. In course of trial the plaintiff examined himself as PW1 and exhibited some documents. One Major Jaideep Krishan was examined by defendant Nos.1 to 5 as DW1. The defendant No.6 did not examine any witness. 7. After considering evidence led by the parties, the learned trial court passed the impugned judgment and decree on 22.7.2008 dismissing the suit of the plaintiff. While deciding issue No.5 the learned trial court observed that although defendant Nos.1 to 5 claimed that the vehicle had been requisitioned by the District Administration vide Book No.33 Serial No.1609/01 yet did not take any step for bringing the records from the Deputy Commissioner's office and so the stand taken by the defendant Nos.1 to 5 was not established. Consequently, it was held that the vehicle was illegally possessed by the defendant Nos.1 to 5. While deciding issue No.1, on maintainability of the suit, the learned trial court observed that the vehicle having been wrongly taken from the custody of the plaintiff by the defendant Nos.1 to 5, the suit was governed by article 91 (b) of the Limitation Act and so period of limitation would be 3 years from the date of deposition of the vehicle. Admittedly, the vehicle was under defendant No.4 since 6.5.2001 but the suit was filed on 21.11.2005. In that view of the matter the suit is barred by limitation for over 1½ year. The learned trial court decided other issues in favour of the plaintiff but it was held that the plaintiff is not entitled to any relief. Aggrieved, the plaintiff has preferred this appeal challenging the judgment and decree passed by the learned trial court. 8. I have heard Mr. K. Bhattacharjee, learned counsel for the appellant and Mr. G. Sarma, learned Government advocate on behalf of the respondent No.6. But none appears for the respondent Nos.1 to 5, although cause-list discloses the name of Assistant Solicitor General. 9. It is the case of the plaintiff that that his private vehicle, i.e., Maruti Van bearing registration No.AS-12/7869 was requisitioned without any formal or lawful requisition order from the District Administration. But none appears for the respondent Nos.1 to 5, although cause-list discloses the name of Assistant Solicitor General. 9. It is the case of the plaintiff that that his private vehicle, i.e., Maruti Van bearing registration No.AS-12/7869 was requisitioned without any formal or lawful requisition order from the District Administration. However, the defendant Nos.1 to 5 in their written statement made a mention that the vehicle was used for counter insurgency operation by the Army on being requisitioned by the District Administration. It is the case of defendant Nos.1 to 5 that the vehicle was duly requisitioned by the District Administration vide requisition book No.33 Serial No.1609/ 01. This specific averment made by the defendant Nos.1 to 5 in paragraph 17 as well as 19 of the written statement has not been discussed by the defendant Nos.6 in his written statement and the defendant No.6 stayed away from coming to the witness box for leading any evidence. Under such circumstances, the learned trial court was of the view that the vehicle was illegally taken away by the defendant Nos. 1 to 5. Now the question arises when it has disclosed by a wing of the Government that the vehicle was used in counter insurgency operation, it is noticed that the vehicle was on Government Duty. It is, therefore, difficult to accept the contention of the plaintiff that the vehicle was illegally taken without following the due process of law. The procedure of requisition of private vehicle is governed by Assam Requisition and Control of Vehicles Act, 1968. Section 3 of this Act provides that the State Government can requisition a vehicle if it is necessary or expedient for the purpose essential to the life or of the community or for maintaining public order or for facility of public transport. Insurgency disturbs the public life and so Army is deployed in the aid of civil power. Maintaining public order is a State subject use of Armed Forces in aid of civil power is covered under entry No.1 List II of the 7th Schedule. The State Government, therefore, had the executive power under article 162 of the Constitution of India to requisition vehicles for the purpose of maintaining public order under aforesaid Act of 1968. Maintaining public order is a State subject use of Armed Forces in aid of civil power is covered under entry No.1 List II of the 7th Schedule. The State Government, therefore, had the executive power under article 162 of the Constitution of India to requisition vehicles for the purpose of maintaining public order under aforesaid Act of 1968. None of the parties could point out existence of any other law or any central law, whereby a vehicle can be requisitioned for the purpose of law and order duty. The defendant Nos. 1 to 5 have specifically made averments in paragraphs 13,17 and 19 of the written statement that the vehicle in question was duly requisitioned by the District Administration and the said requisition was done vide requisition book No.33 and Serial No.1609/01 but after taking such a stand the defendant Nos.1 to 5, did not call for records from the office of the Deputy Commissioner and that is why the learned trial court arrived at the finding that the vehicle was taken over by the defendant Nos.1 to 5 without following due process of law. This finding may be an outcome of over simplification of the situation. The defendant Nos.1 to 5 are also representing a wing of Government at the centre. It took a definite stand by quoting book No.33 and Serial No.1609/01 of vehicle registration by the Deputy Commissioner. Under such circumstances, failure on the part of the defendant No.6 to lead any evidence and to place any records before the court may give rise to cause for drawing presumption under section 114 against the defendant No.6. Besides this the court is also duty bound under the aforesaid circumstances to call for the records in exercise of power under section 30 of the Code of Civil Procedure to find out the truth as to whether property of a citizen was lawfully taken over by the State or not. Fact remains that the plaintiff is a lawful owner of the vehicle. It is not denied by either of the parties that the vehicle was taken over from his custody and put to counter insurgency operation. Fact remains that the plaintiff is a lawful owner of the vehicle. It is not denied by either of the parties that the vehicle was taken over from his custody and put to counter insurgency operation. Obviously, this was done in aid of civil power of the State and so the vehicle must have been placed at the custody of the armed force engaged in aid of the civil power, The necessity to take recourse to section 30 of the Code of Civil Procedure has been highlighted by the hon'ble Supreme Court in the catena of decisions. Because ultimately court is duty bound to find out the truth from the rival contention of the parties and trial is nothing but a journey in quest of truth. Section 30 of the Code of Civil Procedure has vested sufficient power on a civil court to call for document and to examine the evidence for this purpose. Section 30 of the Code of Civil procedure is quoted below : "30. Power to order discovery and the like -- Subject to such conditions and limitations as may be prescribed, the court may, at any time either of its own motion or on the application of any party - (a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; (b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid; (c) order any fact to be proved by affidavit." 10. The hon'ble Supreme Court in a catena of cases held that even if a party fails to discharge his duties for calling a document, section 30 of the Code of Civil Procedure may be enforced by the court to call for that document and/or to enforce attendance of witness if it is so required for the ends of justice. The hon'ble Supreme Court in a catena of cases held that even if a party fails to discharge his duties for calling a document, section 30 of the Code of Civil Procedure may be enforced by the court to call for that document and/or to enforce attendance of witness if it is so required for the ends of justice. In judgment passed by the hon'ble Supreme Court in the case Maria Margarida Sequeira Fernandes and Others v. Erasmo Jack De Sequeira, (2012) 5 SCC 370 , the hon'ble Supreme Court held that truth is the foundation of the justice and it must be the endeavour of the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. The hon'ble Supreme Court, therefore, held that provision under section 30 of the Code of Civil Procedure ought to be frequently used by the court in deciding civil cases but the same is rarely pressed in service. Paragraphs 41 to 52 of the judgments is quoted below : "41. In civil cases, adherence to section 30, CPC would also help in ascertaining the truth. It seems that this provision which ought to be frequently used is rarely pressed in service by our judicial officers and judges. 42. Section 30, CPC reads as under: 30. Power to order discovery and the like. -- Subject to such conditions and limitations as may be prescribed, the Court may, at any time either of its own motion or on the application of any party - (a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; (b) issue summons to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid; (c) order any fact to be proved by affidavit. 43. "Satyameva Jayate" (Literally : "Truth Stands Invincible") is a mantra from the ancient scripture Mundaka Upanishad. Upon independence of India, it was adopted as the national motto of India. It is inscribed in Devanagari script at the base of the national emblem. The meaning of full mantra is as follows: "Truth alone triumphs; not falsehood. 43. "Satyameva Jayate" (Literally : "Truth Stands Invincible") is a mantra from the ancient scripture Mundaka Upanishad. Upon independence of India, it was adopted as the national motto of India. It is inscribed in Devanagari script at the base of the national emblem. The meaning of full mantra is as follows: "Truth alone triumphs; not falsehood. Through truth the divine path is spread out by which the sages whose desires have been completely fulfilled, reach where that supreme treasure of Truth resides." 44. Malimath Committee on Judicial Reforms heavily relied on the fact that in discovering truth, the judges of all Courts need to play an active role. The Committee observed, thus: 2.2.......... In the adversarial system truth is supposed to emerge from the respective versions of the facts presented by the prosecution and the defence before a neutral judge. The judge acts like an umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt. The State discharges the obligation to protect life, liberty and property of the citizens by taking suitable preventive and punitive measures which also serve the object of preventing private retribution so essential for maintenance of peace and law and order in the society doubt and gives the benefit of doubt to the accused. It is the parties that determine the scope of dispute and decide largely, autonomously and in a selective manner on the evidence that they decide to present to the court. The trial is oral, continuous and confrontational. The parties use cross-examination of witnesses to undermine the opposing case and to discover information the other side has not brought out. The judge in his anxiety to maintain his position of neutrality never takes any initiative to discover truth. He does not correct the aberrations in the investigation or in the matter of production of evidence before court........" 2.15 "The Adversarial System lacks dynamism because it has no lofty ideal to inspire. It has not been entrusted with a positive duty to discover truth as in the Inquisitorial System. When the investigation is perfunctory or ineffective, Judges seldom take any initiative to remedy the situation. During the trial, the Judges do not bother if relevant evidence is not produced and plays a passive role as le has no duty to search for truth....." 2.16.9. When the investigation is perfunctory or ineffective, Judges seldom take any initiative to remedy the situation. During the trial, the Judges do not bother if relevant evidence is not produced and plays a passive role as le has no duty to search for truth....." 2.16.9. Truth being the Cherished ideal and ethos of India, pursuit of truth should be the guiding star of the Criminal Justice System. For justice to be done truth must prevail. It is truth that must protect the innocent and it is truth that must be the basis to punish the guilty. Truth is the very soul of justice. Therefore truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the courts to become active seekers of truth. It is of seminal importance to inject vitality into our system if we have to regain the lost confidence of the people. Concern for and duty to seek truth should not become the limited concern of the courts. It should become the paramount duty of everyone to assist the court in its quest for truth. 45. In Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421 to enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, pre-variation and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail. People would have faith in courts when they would find that truth alone triumphs in courts. 46. Truth has been foundation of other judicial systems, such as, the United States of America, the United Kingdom and other countries. 47. In James v. Giles et al. V. State of Maryland 386 U.S. 66,87, S.Ct. 793), the US Supreme Court, in ruling on the conduct of prosecution in suppressing evidence favourable to the defendants and use of perjured testimony held that such rules existed for a purpose as a necessary component of the search for truth and justice that judges, like prosecutors must undertake. It further held that the State's obligation under the Due Process Clause "is not to convict, but to see that so far as possible, truth emerges." 48. The obligation to pursue truth has been carried to extremes. It further held that the State's obligation under the Due Process Clause "is not to convict, but to see that so far as possible, truth emerges." 48. The obligation to pursue truth has been carried to extremes. Thus, in United States v. J. Lee Havens 446 U.S. 620,100 St. Ct. 1912, it was held that the Government may use illegally obtained evidence to impeach a defendant's fraudulent statements during cross-examination for the purpose of seeking justice, for the purpose of "arriving at the truth, which is a fundamental goal of our legal system". 49. Justice Cardozo in his widely read and appreciated book "The Nature of the Judicial Process" discusses the role of the judges. The relevant part is reproduced as under: "There has been a certain lack of candour," "in much of the discussion of the theme [of judges' humanity], or rather perhaps in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations." I do not doubt the grandeur of conception which lifts them into the realm of pure reason, above and beyond the sweep of perturbing and deflecting forces. None the less, if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do." 50. Aharon Barak, President of Israeli Supreme Court from 1995 to 2006 takes the position that: "For issues in which stability is actually more important than the substance of the solution -- and there are many such case -- I will join the majority, without restating my dissent each time. Only when my dissenting opinion reflects an issue that is central for me -- that goes to the core of my role as a judge -- will I not capitulate, and will I continue to restate my dissenting opinion: "Truth or stability -- truth is preferable". "On the contrary, public confidence means ruling according to the law and according to the judge's conscience, whatever the attitude of the public may be. Public confidence means giving expression to history, not to hysteria. Public confidence is ensured by the recognition that the judge is doing justice within the framework of the law and its provisions. "On the contrary, public confidence means ruling according to the law and according to the judge's conscience, whatever the attitude of the public may be. Public confidence means giving expression to history, not to hysteria. Public confidence is ensured by the recognition that the judge is doing justice within the framework of the law and its provisions. Judges must act -- inside and outside the court -- in a manner that preserves public confidence in them. They must understand that judging is not merely a job but a way of life. It is a way of life that does not include the pursuit of material wealth or publicity; it is a way of life based on spiritual wealth; it is a way of life that includes an objective and impartial search for truth." 51. In the administration of justice, judges and lawyers play equal roles. Like judges, lawyers also must ensure that truth triumphs in the administration of justice. 52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth." 11. Doctrine of eminent domain provides that property of a citizen can be used in the public interest by the State but adequate compensation has to be paid to the owner of the property for the same. This, however, does not apply in the case of exercise of police power. Here in this case control and requisition of private vehicle is governed by a law made by the State Legislature and it not only provides for power of the Government to requisition a vehicle but it also provides under section 4 of the Assam Requisition and Control of Vehicles Act, 1968 for payment of compensation to the owner. Section 5 of this Act deals with release from requisition. Section 5 of this Act deals with release from requisition. It provides that the officer or authority requisitioning a vehicle may release the same at any time and it will not have further claim for compensation or payment after the same has been released to the owner In clause (3) of section 5 it is further provided that delivery of possession of the vehicle to the owner or his accredited agent shall fully discharge any liability of the State Government. However, if the owner fails to take delivery on/or within the specified dates, the officer of the authority may dispose of the vehicle. Here in this case, no pleading has been put forward by either of the State defendants claiming that the vehicle was released to the owner in any point of time. The defendants not having denied use of the vehicle by the State for counter insurgency operation and the vehicle not having been delivered to the owner, the liability of the State under section 5 of the Assam Requisition and Control of the Vehicles Act, 1968 continues to remain. This being the position it is necessary to decide as to when was the vehicle requisitioned and as to whether the same has at all been delivered in any point of time to the original owner. No evidence has been led by the parties in this regard. 12. The learned trial court have dismissed the suit merely on the ground that the vehicle was illegally possessed by the defendant Nos.1 to 5 who are instrumentalities of the State and so the suit is governed by article 91 (b) of the Limitation Act but the suit has been instituted after expiry of 3 years from the date of such illegal possession. If it is not disclosed that the vehicle has been delivered to the owner, the defendants cannot be absolved from their liability of making payment of compensation. Since there is at least some materials on record in the form of written statement of defendant Nos.1 to 5 to the effect that the vehicle was requisitioned by the State, in that event application of article 91(b) of the Limitation Act appears to be erroneous. Since there is at least some materials on record in the form of written statement of defendant Nos.1 to 5 to the effect that the vehicle was requisitioned by the State, in that event application of article 91(b) of the Limitation Act appears to be erroneous. If the liability of the State still continues and the vehicle continues to remain under requisition because of operation of section 5(1) of the Assam Requisition and Control of Evidence Act, 1968, the suit cannot be held to be barred by limitation. Article 91(b) of the Limitation Act also will be inapplicable because State has the power to take over possession of the vehicle. This being the position finding under issue No.5 needs to be reversed and it is accordingly reversed. 13. As observed above there is lack of required evidence to arrive at finding on fact in regard to requisition of vehicle and liability of the State to make compensation and so the matter needs to be remanded to the learned trial court by framing following issues : (i) Whether the State of Assam requisitioned the vehicle vide requisition book No.33 Serial No.1609/01 as claimed in Paragraphs 13,17 and 19 of the written statement submitted by defendant Nos.1 to 5? (ii) Whether the vehicle in question has been released to the owner under section 5 of the Assam Requisition and Control of Vehicles Act, 1968? (iii) What is the quantum of compensation to be paid to the owner against requisition under section 3 of this Act? 14. Send down the records immediately to the learned trial court after framing decree. The learned trial court shall issue notice to the parties fixing a date for their appearance and thereafter, shall proceed with the case in light of the observations made above. Since it is a suit of 2005, the learned trial court shall endeavour to dispose of the same expeditiously. 15. No order as to costs.