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TMI Blog1964 (7) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Officer issued a certificate under S. 46 (2) of the Income Tax Act, 1922, to the Collector of Bellary for realisation of the said arrears. The Tahsildar, Kadiri, was directed by the Collector to attach the said factory, buildings and machinery, which he did on 17-6-57. The attachment of the boiler engine and decorticator, the engine, factory building, and the godowns of the factory, etc. , was effected, by the Tahsildar in the presence of the Deputy Tahsildar, the village munsif and karnam, by locking and sealing the factory buildings, and keeping a watch-man to guard the articles attached. It was made clear even at that time that the groundnut, etc. , stored by the plaintiffs could be removed by them in the presence of the village officers. The plaintiff-firm made attempts to obtain permission for working the factory by approaching the revenue authorities, but in vain. The plaintiff then moved this Court by Writ Petition No. 550 of 1957 for a direction for the removal of locks and the same was ordered on their furnishing security in the sum of ₹ 30,000 but by the time the security was furnished, the lease period had expired on 30-9-1957. The plaintiff's case is that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment a further contention is raised that the suit is not maintainable, as it was not filed against the Collector and the Tahsildar (defendants 1 and 3) in their individual capacity. The arrears of Income Tax were due to the Union Government, and the State Government, and the Collector acted only as its agent pursuant to the Certificate under S. 46 (2) of the Indian Income Tax Act. As such the Union Government or the Income Tax Officer concerned had to be impleaded, and in their absence the suit is not maintainable. In any event, it is only the Union Government that could be made liable, but not the State Government and there is no cause of action against the State Government. 6. Sri. N. M. Sastry, the learned counsel for the appellants contended immovable property, and that the attachment effected by the Tahsildar in the instant case is not in accordance with law and is illegal. The defendants, therefore, jointly and severally liable for the damage suffered by the plaintiff from the said tortious or wrongful conduct. 7. In refuting this argument, Sri Sanakara Rao, the learned Government Pleader, made the following submissions:- 1. The property attached is not immovable pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in writing specifying the arrears for which the distress is issued, and the date on which the distress is issued, and the date on which arrears fell due. A copy of this has to be furnished to the person employed to distrain, requiring him to deliver a copy of such writing to the defaulter endorsing thereon a list of the property to be distrained, and the name of the place where it may be lodged or kept. The writing shall also state that the distrained property shall immediately by brought to sale, unless the amount be previously discharged. When the defaulter is absent, a copy of the writing shall be affixed or left at his usual place of residence or the premises where the property may have been distrained before the expiration of the third day from the day of the distress. When the amount due is not paid pursuant to the demand, the distrainer shall transmit an inventory of the property distrained to the nearest public officer empowered to sell the distrained property for being publicly sold. 10. It is clear from these provisions that the procedure in the case of movable property is by its seizure and sale, and that is the very procedure adopted in the instant case. It is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accord with S. 27 nor satisfy any of the requirements. If the property attached is immovable property, it follows that the procedure adopted by the Tahsildar in the present case is illegal. The question that falls for consideration, therefore, is, whether the property in question is movable property or immovable property. For an answer to this question, it is necessary to refer to the relevant statutory provisions. 16. Section 25 of the Act has provided for attachment of the land, but the Act has not defined land or building. S. 3 (14) of the Madras General Clauses Act defines 'immovable property' thus:- 'immovable property' shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth. Section 3 (19) defines 'movable property' to mean property of every description except immovable property. A combined reading of these two definitions makes to clear that things attached to earth or permanently fastened to anything to earth or permanently fastened to anything attached to earth are not movable property, but only immovable property. The definitions in the Transfer of Prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idual since machinery is embedded in the building for the beneficial use thereof, it must be deemed to be a part of the building and the land on which the building is situate. 19. A Bench of the Madras High Court had to consider this very question in Mohammed Ibrahim vs. Northern Circars Fibre Trading Co., Cocanada (1944) 2 MLJ 60 : AIR 1944 Mad 492 . In that case, the machine of the mill was installed on a small platform and held in position by being attached to iron pillars fixed in the ground to a depth of nearly 6 or 7 feet. By an unregistered agreement with the creditor, a charge was created on the assets of the firm. On a contention by the creditor that they were movable properties and the charge was effective in respect of the plant and machinery it was held that the machinery did not fall within any of the enumerated species of movable property defined in S. 2(9) of the Registration Act. It was further held that from the definition of immovable property in S. 2(6) what is really movable property may become immovable property if it is attached to the earth or permanently fastened to anything attached to the earth, and that so far as the question of registration was con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. It has, therefore, no application . 23. Reliance was then placed on Indian Insurance and Banking Corporation Ltd. , Salem v. S. Paramasiva Mudaliar 70 MLW 205 . This decision does not at all help the contention of the Government. On the other hand, it clearly lays down that even though the building which was mortgaged was intended to be used for running a cinema, though it was not a cinema on the date of the mortgage, the electric installations consisting of the mains, the switch boards and the connecting wires between the mains of the building and the mains of the electric supply, form an integral part of the house, and intended to go along with the house, and so also the electric wiring in the building, but not fans, shades, bulbs, etc. , which do not form an integral part of the house. This case has not, and cannot be deemed to have laid down a principle different from that enunciated in 1944 2 MLJ 60 : AIR 1944 Mad 492 . 24. We are, therefore, unable to accept the contention of the learned Government Pleader that the machinery, viz. , boiler engine and the decorticator embedded in the earth are not immovable property. 25. He then contended that even though legally s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded a remedy against the Crown in cases of breach of contract and possibly also enabled real or personal property to be recovered. But it was impossible to sue the Crown in tort, either for wrongs which it had expressly authorised or for wrongs committed by its servants in the course of their employment. Nor was it possible to sue the head of the department or other official superior of the wrong-doer for all servants of the Crown are fellow-servants and do not stand to each other in the relationship of master and servant. The individual wrong-doer was, of course, liable and could not plead the commands of the King or State necessity as a defence. These rules become highly unsatisfactory when the Crown become one of the largest employers of labour and occupiers of property in the country. Various devices were available to ensure that substantial justice was done. Thus the Treasury might, as a matter of grace, undertake to satisfy any judgment awarded against the individual Crown servant who had committed a tort in the course of his employment. These makeshifts became unnecessary when the Crown Proceedings Act, 1947 was passed. (Vide Salmond on the Law of Torts, 12th Edition, 1957, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for an act which is not justiciable in the municipal Courts. (3) The Government is liable for injury to any of its subjects from any act done by itself or by its servants, if such act is done under the colour of Municipal Law, i.e., when it purports to be in the exercise of power conferred by Statute, but is really illegal. (4) The Government is not liable for a wrong done by its servants in the course of official duties, unless the wrong was expressly authorised or later ratified by it: (Vide Ross v. Secretary of State ILR Mad 55 : AIR 1915 434. The principle rests on the ground that the act was done by the Government servant in exercise of the authority or discretion vested in him by law or statute, and not in pursuance of any implied authority of the Government. 32. The leading case on the subject is Gurucharan Kaur v. Province of Madras (AIR 1942 Mad 539). In that case, the wife and daughter of the ex-Maharajah of Nabha were kept under wrongful detention by a Sub-Inspector and two Head Constables of the Railway Police at Kodaikanal Road Railway Station. They were ordered by the Superintendent of Police to detain the ex-Maharajah of Nabha, but owing to a misundersta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty or by the persons to whom the sovereign authority might delegate such powers, or are they such acts as are done by the Government in pursuance of ventures which a private individual might undertake equally well. The acts of the latter class are mercantile operations, and the acts done in the exercise of governmental powers may fall under different categories. It was held that the making and maintenance of national highways is the exclusive duty of the Government, and for a tort committed by a Government servant in the discharge of his duty in connection with the work of national highway, the Government cannot be made liable on the rule of vicarious liability. It was, however, held that the remedy in tort was available against the driver, but that would have proved a poor recompense for the probable loss that he sustained. Had the employer been other than the Government, the plaintiff would have recovered an adequate compensation, but not against the Government. Adverting to this unsatisfactory state of law, Kumarayya, J., made the following pertinent observations:- It is a known fact that the Union of India and also the Government of State have set before them the ideal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n exercise of the powers conferred under the Madras Food-grains (Intensive Procurement) Order, 1948, had not acted maliciously, though the seizure was illegal, and, therefore, he was indemnified form liability under that Act. On the general question whether the tort committed by the Government servant the Government could be made liable, it was held that if the injury resulted from the exercise of the sovereign power under a statute by the official, the State cannot be made vicariously liable. It was also laid down that it was only in cases where the plaintiff complains of an injury caused by the Government officials in undertakings of a commercial nature or in matters which could be undertaken by a private individual without delegation of the sovereign power that the vicarious liability of the Government arises. 36. This decision was followed by one of us (Venkatesam, J.) in Hindupur Co-operative Stores Ltd., v. State of Andhra 1964 1 AnWR 333. It is needless to mention that the decisions in AIR 1961 AP 283 and 1961 1 AnWR 253 , are cases decided after our Constitution came into force. 37. Sri N. M. Sastry, the learned counsel for the appellants, contended that the immunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for the tortious act of its servant. But it was realised in the United Kingdom that that rule had become outmoded in the context of modern developments in State-craft, and Parliament intervened by enacting the Crown Proceedings Act, 1947, which came into force on 1st January, 1948. Hence the very citadel of the absolute rule of immunity of the sovereign has now been blown up .................... As already pointed out, the law applicable to India in respect of torts committed by a servant of the Government was very much in advance of the Common Law, before the enactment of the Crown Proceedings Act, 1947, which has revolutionised the law in the United Kingdom also. It has not been claimed before us that the Common Law of the United Kingdom before it was altered by the said Act with effect from 1948, applied to the Rajasthan Union in 1949, or even earlier. It must, therefore, be held that the State of Rajasthan has failed to discharge the burden of establishing the case raised in Issue No. 9, set out above. 39. The following observations of the learned Chief Justice may usefully be extracted:- When the rule of immunity in favour of the Crown, based on Common Law in the Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down that though a Government servant can be sued individually for wrongs committed him, he could not be sued in his official capacity and such a suit is misconceived and would not lie. 42. This decision was approved by the Court of Appeal in Bainbridge v. Postmaster General (1906) 1 KB 178 , where it was held that the Postmaster-General is not liable in his official capacity as head of the Telegraphic Department of the Post Office, for wrongful acts done by his subordinate in carrying on the business of the department. 43. In Sheriff of Bombay v. Hakmaji Motaji and Co., Marten. C. J., and Blackwell, J., held that Because one can bring a suit against a public officer in respect of acts done by him in his official capacity, it does not follow that one can sue that officer by his official name, just as he was a 'Corporation sole'. It was also held that the Sheriff of Bombay who was appointed under the Supreme Court Charter of 1823, which remained in force by subsequent legislation was not a 'corporation sole' within the meaning of that expression, that an action against him does not lie in his official capacity, and that he should be sued personally, and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decisions in Venkata Ramayya Appa Rao v. Collector of Madras [1952] 21 ITR 454(Mad) and Abanindra Kumar v. A. K. Biswas, AIR 1954 Cal 355 were cited. There is much force in this contention. But in view of the conclusions already arrived at, we do not deem it necessary to decide this question. It is, therefore, futile to consider the cases cited on behalf of the appellant. viz., Dharangadhra Chemical Works Ltd. v. State of Saurashtra,(S) (1957) ILLJ 477 SC and National Shipping Co., v. Haripada Saha, AIR 1958 Cal 597 , for the proposition that the Collector and the Tahsildar when they acted under the Madras Revenue Recovery Act are not really the servants of the Central Government, but only the servants of the State Government. 48. In the view we have taken, it is not necessary to give a finding on the quantum of damages to which the plaintiff is entitled. 49. No other point has been argued before us. In the result, the appeal fails and is dismissed. 50. Inasmuch as the Government had not raised the contention in the written statement that it is not vicariously liable for the tort committed by the Tahsildar, nor taken an issue on the point, we think it just that the Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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