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TMI Blog1960 (2) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Jail under Section 3(1)(b) of the Rajasthan Public Safety Ordinance (No. IX of 1948), hereinafter referred to as the Ordinance -- A habeas corpus application was filed by his brother for his release and the Bench of the former Rajasthan High Court, sitting at Kotah, ordered the release of the plaintiff on the 14th of August 1948. He was consequently released, but before he could get out of the outer gate of the Jail, he was again arrested under a warrant of detention issued by the Commissioner, Kotah Division under the same provision of the Ordinance. Again, a habeas corpus application was presented for his release and by the order dated the 26th of August 1948, he was again released by the same Bench of the High Court. 4. The plaintiff alleged that both of his detentions were illegal, wrongful and mala fide and claimed a sum of ₹ 100/- as damages for his first detention and ₹ 5,000/- for the second, making a total of ₹ 5,100/-. 5. The present State of Rajasthan, which is the successor of the former United State of Rajasthan, contested the suit. It was denied that the detentions were illegal, wrongful or mala fide. It was also pleaded that the suit w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f reputation. The reasoning that weighed with the learned Judge was that the detention of the plaintiff was not punitive and he cannot, therefore, be held to have suffered in reputation on account of his preventive detention under the Ordinance. He, therefore, allowed a claim of ₹ 3,400/- only. 8. In the appeal, the learned counsel for the State has urged the following points: (1) That no suit for compensation in tort lay in a civil court against the United State of Rajasthan for the reason that no such suit lay against the State of Kotah or against the first United State of Rajasthan, The common law rule that the Sovereign cannot be sued in his own court without his consent, was relied upon in this connection. (2) That the Commissioner, under whose orders the plaintiff was detained, was not impleaded as a party to the suit and the claim of the plaintiff against the State was, therefore, not maintainable. (3) That the act of the Commissioner in ordering detention of the plaintiff was not ratified by the State and the State was, therefore, not liable. (4) That the second United State of Rajasthan formed on the 8th of April 1949 was not liable to pay liabilities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er an order passed by the Commissioner of Kotah Division. Section 176 of the Government of India Act, 1935 which applied to the Dominion of India and its Provinces was not applicable to the Indian States which acceded to the Dominion of India under Section 6 of the Government of India Act, 1935 and the position of the United State of Rajasthan remained at par with such Indian States in that behalf till the 26th of January 1950, when the Constitution of India came into force. Thus the position of the United State of Rajasthan to sue and be sued stood on a different footing from that of the Dominion of India or its Provinces. We may in this connection refer to a decision of this Court in Mt. Vidyawati v. Lokumal, 1957 Raj LW 404: (S) which was decided on the assumption that the position of the State ol Rajasthan was at par with that of the Union ol India or the States which formed part of British India before Independence. That suit appears to have been contested by both the parties on the erroneous belief that the position of the State of Rajasthan was the same as that of any other State in India which formed part of British India before Independence. That suit was instituted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... United State of Rajasthan. The provisions of Section 19 of Ordinance No. 1 of 1948 of the former United State of Rajasthan would be applicable to the facts and circumstances of that case. The liability of being sued of the State of Rajasthan for purposes of that case would be governed by Article 300 read with Section 3 of the Rajasthan Administration Ordinance (No. 1 of 1949) and Section 17 of the United State of Rajasthan Administration Ordinance, (No. 1 of 1948). The United State of Rajasthan, after it was formed, promulgated the United State of Rajasthan Administration Ordinance (No. 1 of 1948) on the 28th of April 1948, Section 17(1) of which is as follows: The Government of the United State of Rajasthan may sue or be sued by the name of the Government of the United State of Rajasthan through the Chief Secretary or in such other manner as may be directed by the said Government. The language of Section 17 of Ordinance No. 1 of 1948 is similar to the provision of Article 300 of the Constitution. It is an established principle of jurisprudence in all civilized nations that a Sovereign State cannot be sued in its own courts or in any other without its consent and perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway; (c) in the case of a suit against a State Government, a Secretary to that Government or the Collector of the District, and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been delivered or left. It would be noticed that the language of sections 79 and 80 refers to procedure and procedure alone. The language of Sec, 17 of the Ordinance cannot be considered to be similar to that of Sections 79 and 80 of the Civil Procedure Code. Section 17 also makes a provision for the name in which the Government of the United State of Rajasthan was to be sued and the officer through whom it was to be so sued. This part alone of Section 17 may be regarded as procedural. This, however, does not detract from the substantive provision of Section 17 regarding consent of the State to being sued. We may also refer to the liability of the Kotah State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce No. 1. By the provision of Section 17 of Ordinance No. 1 of 1948 the same position was reiterated and extended throughout the territories of the United State of Rajasthan. 13. As regards the second point, the learned counsel for the State has not referred to any authority in support of his contention. It may be noted that there is no provision of any law under which it may be necessary for the plaintiff to implead a servant as one of the defendants even when he may not desire to get any relief against him in a suit against the master. The argument of the learned counsel has no substance in it. It is open to the plaintiff to sue the servant and the master both or only one of them. 14. The learned counsel for the State referred to the decision of the Supreme Court in Dalmia Dadri Cement Company's case, and contended that it was not proved by the plaintiff that the United State of Rajasthan, against which the suit was filed, undertook the liability of the former United State of Rajasthan in this behalf and no decree, therefore, could be passed against the defendant. We may refer to para 6 of the plaint wherein it was stated that the present State of Rajasthan was liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce No. 1 of 1948. The definition of person as per Kotah General Clauses Act is wide enough to include Government also. In State of U. P. v. Kanhayalal Makund Lal, (S) the Government has been held to be included in the definition of the term person with reference to Section 3(42) of the Central General Clauses Act. The definition of person as per Kotah General Clauses Act is exactly the same as given in Section 3(42) of the Central General Clauses Act. The court below was not right in holding that the Government was not included in the term person in Section 44 of the Ordinance. Moreover, if the Commissioner is protected under Section 44, the vicarious liability of the State would also not arise for the simple reason that such liability is co-extensive with the liability incurred by the servant In order to find out whether Section 44 can be pleaded a bar to the suit, it is necessary to examine the question of good faith of the Commissioner in passing the impugned order. Good faith has not been defined in the Ordinance itself, nor has it been defined by the Kotah General Clauses Act. It has been defined by Section 3(22) of the Central General Clauses Act as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven a probable ground for believing that the plaintiff was likely to commit any prejudicial act referred to in Section 3(1), The Commissioner reproduced the three grounds given in the section itself in his order which also goes to show that he did not apply his mind to the particular circumstances of the case in order to come to the conclusion as to which one of the grounds existed in the instant case. In order that Section 3 of the Ordinance may be attracted, the Commissioner had to be satisfied that the plaintiff was likely to commit an act prejudicial to the public safety, the maintenance of public order and Government's relations with the Government of India. The Commissioner in the instant case did not care to examine the question whether the plaintiff was likely to do such a prejudicial act. He cannot under these circumstances be said to have acted honestly in a judicial sense. He did not act dishonestly, but that is not enough. The order of the Commissioner, under the circumstances, cannot be taken to have been passed in good faith within the meaning of Section 44 of the Ordinance. The protection given by Section 44 would, therefore, be not available to the State f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Secretary of State, 16 Ind Cas 714 at p. 723 (Bom). The contention of the plaintiff that the Commissioner acted as an agent o the Government in ordering re-arrest of the plaintiff is, therefore, not well founded. This also disposes o the argument of the learned counsel for the plaintiff regarding ratification by the Government of the act of Commissioner. The Commissioner not being an agent of the Government, his act in ordering the detention of the plaintiff cannot be said to have been performed on behalf of the Government. Government could not, therefore, ratify it even though it may have approved of the action of the Commissioner. 23. The learned counsel of the plaintiff drew our attention to the following observations of the Supreme Court in the State of Bihar v. Abdul Majid: As regards torts of its servants in exercise of sovereign powers, the Company was not, and the Crown in India was not, liable unless, the act had been ordered or ratified by it. It may be noted that the case of Abdul Majid was for recovery of arrears of salary of a civil servant and the observations referred to above were in the first place obiter in that case and secondly it may be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police officer caused hurt to Satyagrahis who marched in a procession in a street. It was held that Article 2 applied to the case. There is no other special article regarding compensation for wrongful restraint or hurt. The decision in Narendra Lal Das's case is not helpful for this reason. In the instant case, as noted above, Article 19 is a special provision and it would, therefore apply to the plaintiff's suit in preference to Article 2 which is of a general character. 28. The claim of the plaintiff as regards damages for his first detention is barred under Article 19 for the reason that the suit was filed more than one year after the cause of action arose to the plaintiff in that behalf. His claim for damages in respect of his second detention is within limitation by excluding the period of notice under Section 80 of the Civil Procedure Code. 29. Coming now to the question of quantum of damages, the following sums have been claimed for the second detention: (1) ₹ 800/- for professional loss. (2) ₹ 2,000/- for mental worry. (3) ₹ 500/- for physical discomfort. (4) ₹ 100/- as expenses for prosecuting second habeas corpus petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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