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TMI Blog1998 (10) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 1798 of 1997 are filed by the writ petitioner in both the writ petitions. Rev. W. P. M. P. Nos. 36129, 36061 and 34434 of 1997 and 5942 of 1998 : Before we proceed to consider the review petitions, it is necessary to notice the facts of the case, in brief, as disclosed in the judgment, which is reported in [1998] (4) ALD 113. The parties are mentioned as they are shown in the writ petitions. The petitioner moved the court under article 226 of the Constitution of India, alleging, inter alia, that the respondents-police officials have interfered with his right under article 21 of the Constitution by entering into his residential house in jubilee Hills, Hyderabad, seized various articles, falsely registered a criminal case and committed various atrocities. He, therefore, sought for adequate compensation. The petitioner was earlier appointed as principal adviser of the ex-Nizam of Hyderabad and the head of the managing committee called Sharf-e-Khas, in August, 1990. The Nizam severed relations with the petitioner in 1995 and withdrew his powers. It was alleged that in February, 1996, in the absence of the petitioner and his wife, the respondents-police officials along with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and another by name Ram Bharose Gupta (respondent No.7) were involved in disposing of very valuable articles to a jewellery merchant, outside the State. Therefore, he contacted the Deputy Commissioner of Police, Detective Department, and suggested that a suitable force should be urgently deputed to guard the houses of Ram Bharose Gupta and the petitioner. On instructions, accordingly, five policemen each were posted at the two premises on guard duty with strict instructions to ensure that no valuable articles were taken out of the premises. He, thereafter, recorded the statements of the persons found in the hotel indulging in disposing of the valuable articles and seized the articles found and took the accused to the Central crime station. Search operations was postponed to the next day. The statement of Ram Bharose Gupta was recorded, who admitted that one more gold cot leg and several other valuable articles were entrusted to him by the petitioner for sale. He also stated that several other valuable articles have been removed by the petitioner from the palaces of the Nizam. The next day he searched the house of Ram Bharose Gupta and seized 42 items of property of the value of abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate, Hyderabad, stating that no offence either under section 381 of the Indian Penal Code, or under the Arms Act or under the Antiques and Art and Treasures Act are made out and in view of the above a memo has been filed on behalf of the petitioners restricting the relief in the writ petitions to directions to the respondents to return to them the articles and cash which were seized in connection with Cr. No. 26 of 1996. The petitioner, however, pressed for a direction to return Rs. 2 lakhs 50 thousand allegedly seized from their premises as well as the articles seized from their premises. Considering the facts of the case and the report submitted by the then Addl. Director-General of Police, C.I.D., the court found that respondents Nos. 3 to 5 in Writ Petition No. 4926 of 1996 had disregarded the provisions of law in not producing the seized articles before the Court and held that the petitioner's right under article 21 of the Constitution has been violated by the search and seizure of the properties and that they bid by-passed the court of the learned magistrate, which alone was competent to decide about the custody of the properties, and directed to hand over the propertie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort were not even noticed by the court. Hence. the report could not have formed the basis for any finding by the court and it should have been discarded. It is further urged that after the memo was filed by the writ petitioner, the only question that was left for consideration was, the return of articles seized by the police. The nature of the raid or the conduct of the police officer did not fall for consideration at all. Hence, it was strenuously contended that serious injustice was caused to respondent No. 4 due to the adverse remarks made against him. Learned senior counsel for the writ petitioner, Sri K. Subrahmanya Reddy, however, submitted that the court was aware of the fact that the writ petitioner confined his claim to the return of properties seized and yet the court thought that it should award compensation. The award of compensation was therefore for violation of fundamental rights guaranteed under article 21 of the Constitution of India. It was also contended that as the respondents have not urged this point before the court during their arguments in the writ petition, they are not permitted to raise a new ground in the review petitions. It was further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g review, or could not be produced by him at the time when the order was made, or (2) when some mistake or error on the face of record is found, or (3) on any analogous ground. But review is not permissible on the ground that the decision was erroneous on merits as the same would be the province of an appellate court." The petitioner approached this court alleging that the respondent-police officials had raided his premises and unlawfully seized several articles without following the procedure contemplated under law, and registered a false criminal case against him. It was also alleged that the action of the respondent-police officials is in violation of fundamental rights guaranteed under article 21 of the Constitution. The petitioner also sought for return of all the articles seized by the police and illegally handed over to the income-tax authorities. Affidavits and counter-affidavits were filed by the respective parties and the writ petition came up for hearing. While the writ petition was being heard, the police had dropped the criminal case against the petitioner on the ground that no offence, either under the Indian Penal Code or the Arms Act or the Antiques and Art and Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the writ petition was dismissed as withdrawn. In Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526, the objection raised was that the court had no power to consider and take adverse view in matters which were agreed to be left out. The Supreme Court held that : "To decide against a party on matters which do not come within the issues on which the parties went to trial clearly amounts to an error apparent on the face of the record." But it is the case of the learned senior advocate, Sri Subrahmanya Reddy, that even when a claim is withdrawn, when the court's conscience is pricked, the court can grant compensation for the infraction of fundamental rights and this remedy and relief were conceived by the Supreme Court, though not provided by any statute. The learned senior advocate cited D. K. Basu v. State of West Bengal [1971] 1 SCC 416, in support of this proposition. In this case, the Supreme Court held : "44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases in public interest relating to killings or deaths or deprivation of human freedoms where the court has conceived and devised a remedy by way of compensation by the Government for the action of its servants. These decisions have absolutely no application to the facts of the present case as it is not in public interest. Custodial death, victimisation by the police or arrest were neither alleged nor proved. The harassment alleged is also with regard to search and seizure of the articles but this court has found that there was no such harassment. The petitioner was not at all in the country during the search and seizure. In the report submitted by the Director-General of Police it was clearly found that the police officials were also free from mala fides. Thus, the nature of the allegations in the writ petition relate to raid and seizure of certain articles from the premises of the petitioner and handing over the same to the income-tax authorities. The claim thus related to a grievance in private law and not in the realm of public law. Hence, the above decisions do not furnish any ground for the court to have proceeded with the writ petition on matters relating to reliefs which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first respondent for payment of compensation. Hence, the grievance, if any, is only for the first respondent and not for respondents Nos. 3 and 4. But, it should be noticed, that a clear direction was given that the Government was free to proceed, Departmentally or to recover the said amount from the review petitioners and/or otherwise suitably deal with them in accordance with law. In view of this direction by the court, it cannot be said that respondents Nos. 3 and 4 are not aggrieved by the judgment. At any time, the Government may proceed to recover Rs. 5 lakhs from respondents Nos. 3 and 4. It should also be noticed that under Order 41, rule 1 of the Code of Civil Procedure, any aggrieved party is entitled to seek review. Thus, there is no force in the contention with regard to maintainability of the review petitions. Even the objection that the pleas are being raised for the first time in these petitions, is devoid of force, either. It is true that new pleas cannot be raised in the review petitions, vide : P. Neelakanteswaramma v. Uppari Muthamma [1998] 1 ALD 234. This plea could not have been raised by the petitioners during the arguments in the writ petition. There was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the court as by no stretch of imagination the court can be identified as any officer or authority under any other law for the time being in force as contemplated under clause (c) of section 132A(1) read with clause (a) thereof." The court thereafter proceeded to consider whether entry of the Income-tax Officers to take delivery of the properties from the police before the seizure is reported to court and the court has passed any order as to its custody, is a grave violation of law. We are presently not concerned with the validity of the above finding given by the court. What is to be seen is whether learned counsel has made such a concession. We are handicapped, however, in the absence of any record as to what actually happened before the court during the arguments. We cannot, therefore, say whether learned counsel in fact has not conceded, as alleged, or not. On the other hand, it must be seen that the stand of the Income-tax Department was that it could issue notice to the police officers under section 132A of the Income-tax Act and that it need not wait until the property seized by the police was produced before the learned magistrate. In that context, it cannot be ruled out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that though the judgment was delivered on October 17, 1997 (see [2000] 243 ITR 579), it would have taken some time for the authorities to have applied for certified copy of the judgment and for the office to furnish the certified copy. Meanwhile, this court stayed the operation of the judgment on December 26, 1997, in the review petitions. As the operation of the judgment was stayed and as the matters have been heard from time to time, it cannot be said that the first respondent has wilfully violated the order of this court. Further, as the Income-tax Department had seized the articles in dispute, the question of return of the articles by the police does not arise. The Income-tax Department is directed to return the articles forthwith. We do not, therefore, find any merit in the contempt cases. The contempt cases are dismissed, subject to the above direction. In the result, the review petitions Nos. 36129 of 1997, 36061 of 1997 and 5942 of 1998 are allowed partly setting aside the directions with regard to award of compensation of Rs. 5 lakhs against respondents Nos. 3 and 4 and recovery of the same from them by the Government. The review petition No. 34434 of 1997 is dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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