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TMI Blog1972 (10) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... averred that a Writ Petition No. 989 of 1962 was filed before this court for the issue of a writ of mandamus for the release of the goods and that an order of release in respect of a portion of the goods seized was passed by this court. While taking delivery of the goods it was found that the goods had considerably been damaged. The plaintiff therefore has stated that the act of seizure of the goods of the petitioner and detention of the same for realising the sales tax arrears due by someone else was quite unauthorised by the provisions of the Madras General Sales Tax Act, that the officers have not acted in good faith, that their action was mala fide purely intended to insult, intimidate and annoy the plaintiff, and that, therefore, the defendants are liable in damages to the plaintiff. According to the plaintiff, the seizure, attachment and distraint of the goods were made recklessly without reasonable cause and they constitute an unlawful taking away of its property for a liability for which it is in no manner responsible, and the defendant's action also amounted to defamation of the plaintiff and its fair name in the eyes of the public If estimated, the damages towards loss o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a reference under section 113 of the Code of Civil Procedure." Before us it is stated by Mr. V. K. Thiruvenkatachari, the learned counsel for the petitioner, that though it has been contended by the plaintiff that section 49(1) as such is ultra vires, he would confine his attack on section 49(1) so far as it relates to civil suits, and it was fairly conceded by him that section 49(1) is valid so far as it relates to criminal proceedings. The learned counsel also adopted a different line of attack. Before the lower court it was contended that section 49(1) is violative of article 14 of the Constitution and that contention was accepted. But now it is contended that it contravenes article 19(1)(f) of the Constitution. According to the learned counsel, every citizen has a fundamental right to protect his person or property and to prevent others from trespassing on his person or property, and when there is an infringement of such right, his right to get redress by way of compensation in a court of law cannot be taken away, or restricted in any manner, and section 49(1), so far as it prevents the filing of such a suit without the sanction of the Government, is an unreasonable restri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property, the latter has nothing to do with one's fundamental right but mostly concerns the State, and that, therefore, a provision for a prior sanction of the Government may be justified in criminal prosecutions but such a provision in respect of civil suits, cannot be legally sustained on the ground of public interest. It is also submitted by the learned counsel that a right to get compensation for any trespass on one's property by any person is a vested right and such a right cannot be subject to the condition of the Government granting sanction and that one form of protection of property and persons consists in getting compensation for trespass on them. In support of his submission that whether the officer concerned acted within the statute and in good faith is a matter to be decided exclusively by courts and that question cannot be taken up by the Government in the guise of considering the question of sanction under section 49(1), the learned counsel refers to the following passage in 7 Halsbury's 188, paragraph 403: "If effect is to be given to the doctrine that the existence or nonexistence of a power or duty is a matter of law, it should be possible for the courts to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oprietary and delictual actions, in particular the actions of trespass quare clausum fregit, and of trespass de bonis asportatis, and by the rule that an intention to take away the property of a subject without giving to him a legal right to compensation for the loss of it is not to be imputed to the Legislature unless that intention is expressed in unequivocal terms." In support of his contention that there is a clear-cut distinction between criminal and civil proceedings and that while in modern times a citizen has no right to initiate criminal proceedings without reference to the State, a citizen had a fundamental right to resort to court in cases of infringement of his rights to property or person, he refers to the following passage in Paton's Jurisprudence, third edition, at page 418: "The purpose of the law of delict is to protect certain rights which relate to person, property, and reputation, and to provide compensation or redress for any wrongs which infringe them. The essential mark of the criminal law is punishment inflicted by the State, that of delict redress to a wronged plaintiff. But the emphasis on compensation has only lately been made clear." The learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing passage of Lord Morris of Borth-Y-Gest in the judgment of the Board in Director of Public Works and Another v. Ho po sang and Others[1961] 2 All E.R. 721 at p. 731.: "It may be ...... that ...... a right has been given but that, in respect of it, some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given." According to Mr. V. K. Thiruvenkatachari, the right to get compensation arising out of the unauthorised acts of officers amounting to trespass is a vested right and that the officer concerned can escape the liability only by proving good faith in a court of law, and that the enforcement of such a vested right by a citizen in a court of law cannot be prevented by the Government refusing to give the sanction to file a suit. What is contended on behalf of the petitioner is that protection of property and person from unauthorised acts of others consists in getting compensation for such unauthorised ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 197(1) of the Criminal Procedure Code provides a special protection, inter alia, to public servants who are not removable from their offices save by or with the sanction of the State Government or the Central Government where they are charged with having committed offences, while acting or purporting to act in the discharge of their official duties; and the form which this protection has taken is that before a criminal court can take cognizance of any offence alleged to have been committed by such public servants, sanction should have been accorded to the said prosecution by the appropriate authorities. In other words, the appropriate authorities must be satisfied that there is a Prima facie case for starting the prosecution and this prima facie satisfaction has been interposed as a safeguard before the actual prosecution commences. The question, however, is whether the officers acting under the provisions of the Madras General Sales Tax Act could have such a protection as is given in section 197, Criminal Procedure Code. According to the learned Advocate-General, whenever a public authority acts in pursuance of a statute, public interest requires that he should be given protec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bonds falling due the first of January, 1880, be and the same is hereby, remitted, and any interest taxes collected to meet said coupons are hereby transferred to defray the expenses of the State Government." The defence by the State to the said action was that the plaintiff cannot sue the State without its premission. It was held that the suit directed against the State by one of its own citizens, is not maintainable unless the State itself consents to be sued, and the reason given is this: "The suability of a State without its consent was a thing unknown to the law. This has been so often laid down and acknowledged by courts and jurists that it is hardly necessary to be formally asserted. It was fully shown by an exhaustive examination of the old law by Mr. Justice Iredell in his opinion in Chisholm v. Georgia'; and it has been conceded in every case since, where the question has, in any way, been presented, even in the cases which have gone farthest in sustaining suits against the officers or agents of States." It is true in the decisions referred to above it has been held that it is a fundamental principle that the Government cannot be sued except by its own consent and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither absolutely or in part. But the language of any such statute should be jealously watched by the courts, and should not be extended beyond its least onerous meaning unless clear words are used to justify such extension." The position in the United States seems to be somewhat different. Immunity of the several States of the Union from suit by individuals in the Federal Courts, is guaranteed by the Eleventh Amendment which provided that the "judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State or subjects of any foreign State". Roscoe Pound in his work on jurisprudence, Volume Ill, states: "It should be observed that legal privilege of the State has been carried much further than immunity from suit. A distinction has been made between immunity from suit and immunity from liability. Even where the State consents in general terms to be sued in the courts it has been held not to consent to liability for torts of its agents and servants in the scope and course of their employment." From the above discussion it appears to be clear that it is open to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot refuse sanction on the ground that the officers acted within the statute or that they have acted in good faith, for those are matters which have to be decided by the court itself in the proposed suit. But the Government can consider whether the suit is frivolous or whether the petitioner has made out a prima facie case for relief against the officers concerned. In this case, the petitioner never applied for sanction and it is not known what order the Government would have passed if an application for sanction under section 49(1) had been given by the petitioner. There may be cases in which the Government withheld sanction for improper reasons. In such cases, it is open to the party to attack that order on the ground that there has been no proper exercise of the discretion by the Government. But the fact that the Government has refused sanction in another case on grounds which cannot be supported or upheld by a court of law cannot be a ground for striking down the provision in section 49(1). The trial court in the order of reference has stated that section 49(1) gives an unguided and naked discretion to the Government either to accord or refuse sanction and, therefore, it is ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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