# Ram Singh v. State of U.P. and another

- **Citation:** (2000) 3 ILRA 255
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1997-01-16
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-singh-v-state-of-u-p-and-another-39486
- **Pages:** 6

## Text

255 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
not terminate the services of part-time
teachers arbitrarily and in breach of the
canons of natural justice but he failed to
examine whether in the present case, the
Management acted arbitrarily and in
violation of the rules of natural justice
which are embodied in regulations 36 and
37 of chapter III of the Regulations made
under the Act. The non-obstinate clause
notwithstanding in section 7 AA overrides
the provisions of the Act in so far as
method of appointment of part-time
teachers and instructors is concerned. In
my opinion, it does not exclude the
applicability of Sec. 16 G of the Act and
related provisions of the Regulations,
Section 16-E (10) of the Act will also be
attracted in appropriate case e.g. where
the appointee does not possess the
requisite qualification, the appointment
will be liable to be cancelled by
competent authority. Though there is no
need for creation of posts of part-time
teachers,
employment
of
part-time
teachers too is 'Niyamit' (regular) subject
to certain conditions as visualised by
condition no 4 of the G.O. dated
15.10.1986 since prior approval of the
Distt Inspector of Schools as Visuallsed
by Sec. 16 G(3) of the Act has not been
examined on the anvil of canons of justice
and fair play, the order impugned herein
cannot be sustained.

7. Before parting with the case, I
would like to observe that the question
whether the post of Principal will also
come under the provisions of Sec. 7AA of
the Act is left open to be decided by the
Distt Inspector of Schools and the parties
are given liberty to have their say on the
point before the Distt Inspector of Schools
who will examine the question keeping in
mind clause 5 of the recognition order
dated 16.1.1997 Appointment in the
instant case was made not on a fixed
honoralum but in a given scale of pay i.e.
Rs.2000-3500. In case, it is found that the
post of Principal would be deemed to
have been created in view of Clause 5 of
the recognition order, whole complexion
of appointment would be changed the post
of Principal in that event will go out of
the purview of Sec. 7AA of the Act and
will have to be filled in accordance with
the provision of he U.P. Secondary
Education Service Selection Boards Act,
1982.

As a result of foregoing discussion,
the petition succeeds and is succeeds and
is
allowed,
the
impugned
order
I
squashed. The Distt. Inspector of Schools
is directed to take appropriate decision in
the matter afresh in accordance with law
and in the light of the observations made
in the judgement.
Petition Allowed.

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3All] Ram Singh V. State of U.P. and another 256
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By the Court

1. Heard Sri Ashok Kumar and Sri
Kunwar Saksena learned counsel for the
petitioners. Sri Pradeep Kumar Gupta,
Additional Chief Standing Counsel and
Sri R.D. Gupta learned Standing Counsel.

2. Writ petition No. 485 of 2000 had
been filed initially for a mandamus
directing the respondents to release the
truck Nos. M.P. 09KA/2467, M.P.
06/8045 and M.P 09/1589 which were
laying in the custody of respondents since
3rd and 5th January, 2000 respectively.

3. In this petition we had passed an
order on 24.05.2000 for releasing of the
aforesaid
trucks
on
the
petitioners
furnishing security other than cash and
bank guarantee to the satisfaction of
respondent no. 2 We are informed by the
learned counsel for the petitioners that in
pursuance of the interim order the
aforesaid trucks have been released in
favor of the petitioners.

4.

Learned
counsel
for
the
petitioners has submitted that in fact the
respondents had no jurisdiction to seize
the trucks and he has claimed damages.
The submission of the learned counsel for
the petitioners is correct. It has been
repeatedly
held
by several Division
Benches of this Court that trucks cannot
257 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
be seized under the U.P. Trade Act e.g. in
the case of M/s D.B. Timber Merchant,
Ballia Vs. Commissioner OF Sales Tax
and another. 1992 U.P.T.C.18 M/s M.S.
Freight Carriers and another Vs.
SALES Tax Officer, check Post,
Ghaziabad, 1992 U.P.T.C. 273, M/s
Freight Carriers of India ,Calcutta vs.
Deputy Commissioner (Executive ,Sales
Tax, Ghaziabad and others, 1992
U.P.T.C. 604 etc.

It has been held consistently by this
Court that there is no power in the U.P.
Sales Tax Act to seize the trucks, and the
authorities can only seize the goods, not
the truck.

In
Lucknow
Development
Authority Vs. M.K. Gupta, A.I.R. 1994
S.C.787(Para 8) the supreme Court has
observed as under:

"
The
administrative
law
of
accountability of public authorities for
their arbitrary and even ultra virus actions
has taken many strides. It is now accepted
both by this Court and English Court that
the state is liable to compensate for loss or
injury suffered by a citizen due to
arbitrary actions of its employees. In state
of Gujarat V. Memon Mahomed Haji
Hasam, AIR 1967 SC 1885, the order of
the High court directing payment of
compensation for disposal of seized
vehicles without waiting for the outcome
of decision in appeal was upheld both on
principle of bailee's legal obligation to
preserve the properly intact and also the
obligation to take reasonable care of it to
return it in same condition in which it was
seized and also because the Government
was, bound to return the said property by
reason of its statutory obligation or to pay
its value if it had disabled itself from
returning it either by its own act or by act
of its agents and servants .it was extended
further even to bonafid action of the
authorities if it was country to law in Lala
Bishambar
Nath
Vs.
Agra
Nagar
Mahapalika. Agra AIR 1973 SC 1289. It
was held that where the authorities could
not have taken any action against the
dealer and their order was invalid It is
immaterial that the respondents had acted
bonafide
and
in
the
interest
of
preservation of public health. Their
motive may be good but their orders are
illegal. They would accordingly be liable
for any loss caused to the appellants by
their action.' The theoretical concept that
King can do no wrong has been
abandoned in England itself and the State
is now held responsible for tortuous act of
its servants. The first Laws commission
constituted after coming into force of the
Constitution on liability of the State in
Tort. Observed that the old distinction
between
sovereign
and
non-soaring
functions should no longer be invoked to
determine liability of the State Friedmann
observed'

"It is now increasingly necessary to
abandon the lingering fiction of a legally
indivisible
State,
and
of
a
feudal
conception of the Crown and to substitute
for it the principle of legal liability where
the State either directly or through
incorporated public authorities, engages
in activities of a commercial, industrial or
managerial character the proper test is not
an
impracticable
distinction
between
governmental
and
non-governmental
function, but the nature and form of the
activity in question"

Evon M/s Kasturi Lal Ralia Ram Jain
v. State of Uttar Pradesh. A.I.R.1965 SC
1039 did not provide any immunity for
3All] Ram Singh V. State of U.P. and another 258
tortuous acts of public servants committee
in discharge of statutory function if it was
not referable to sovereign power. Since
house construction or for that matter any
service hired by a consumer or facility
availed by him is not a soverign function
of the state the ratio of Kasturi Lal (supra)
could not stand in way of the Commission
awarding compensation. We respectfully
agree with Mathew. J. in Shyam Sunder v.
State of Rajasthan, (1974) SCC 690 (AIR
1974SC 890) that it is not necessary, to
consider whether there is any rational
dividing
line
between
the
so-called
sovereign and proprietary and commercial
functions for determining the liability of
the State In any case the law has always
maintained that the public authorities who
are entrusted with statutory function
cannot act negligently . As far back as
1878 the law was succinctly explained in
geddis v. Proprietors of Bann reservoir,
(1878)3 App cas.430 thus.

"I take it, without citing cases, that it is
now thoroughly well established that no
action will lie for doing that which the
legislature has authorised, if it be done
without negligence, although it does
occasion damage to anyone but an action
does lie for doing what the Legislature
has authorised, if it be done negligently.'

5. In the same decision the Supreme
Court in para 11observed as under:-

"Today the issue thus is not only of
award of compensation but who should
bear the brunt, the concept of authority
and
power
exercised
by
public
functionaries has many dimension. It has
undergone
tremendous
change
with
passage of time and change in socioeconomic
outlook
.The
authority
empowered to function under a Statute
while exercising power discharges public
duty. It has to act to sub serve general
welfare and common good. In discharging
this duty honestly and bona fide loss may
accrue to any person. And he may claim
compensation,
which
may
in
circumstances be payable. But where the
duty is performed capriciously or the
exercise of power results in harassment
and agony then the responsibility today
the loss determined should be whose? In a
modern society no authority can arrogate
to itself the power to act in a manner
which is arbitrary, It is unfortunate that
matters which require immediate attention
linger on and the man in the (street is)
made to run from one end to other with no
result. the culture of window clearance
appears to be totally dead. Even in
ordinary matters a common man who has
neither the political backing nor the
financial strength to match the inaction in
public
oriented
departments
gets
frustrated and it erodes the credibility in
the system. Public administration, no
doubt
involves
a
vast
amount
of
administrative discretion which shields
the action of administrative authority. But
where it is found that exercise of
discretion
was
malafide
and
the
complainant is entitled to compensation
for mental and physical harassment then
the officer can no more claim to be under
protective cover. When a citizen seeks to
recover compensation from a public
authority in respect of injuries suffered by
him for capricious exercise of power and
the National Commission finds it duly
proved then it has a statutory obligation to
award the same? It was never more
necessary than today when even social
obligations are regulated by grant of
statutory powers. The test of permissive
form of grant are over .It is now
imperative and implicit in the exercise of
259 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
power that it should be for the sake of
society. When the Court directs payments
of damages or compensation against the
State the ultimate sufferer is the common
man. It is the tax payers money which is
paid for inaction of those who are
entrusted under the Act to discharge their
duties in accordance with law. It is
therefore, necessary that the Commission
when it is satisfied that a complaint is
entitled to compensation for harassment
or mental agony or oppression, which
finding of course should be recorded
carefully on material and convincing
circumstances and not lightly, then it
should further direct the department
concerned to pay the amount to the
complainant
from
the
public
fund
immediately but to recover the same from
those who are found responsible for such
unpardonable behavior by dividing it
proportionately where there are more than
one functionaries."

6. On the strength of the above
decisions the learned counsel for the
petitioners has urged that damages should
be awarded to the petitioners since their
vehicles were detained for about 5 months
from January 3 ,2000 to the end of May
2000 and in fact they were released only
after the interim order dated 24.5.2000

7. When the law is settled that the
authorities can not detain and seize the
vehicles we fail to understand how the
petitioners vehicles have been detained
for 5 months without any sanction of law.
The action of the respondent is clearly
malafide in law. Several cases are coming
up before us where we find that vehicles
have been seized for long periods by the
Trade Tax authorities although the law
has been settled long time back that there
is no power in the Trade Tax authorities
to do so.

8. The learned Standing Counsel has
relied on Rule 84(1) of the U.P. Trade
Tax Rules, which states that the officer
empowered under Section 13 or 13-A or
under Rule 3-A or 4 may stop the vehicle
and keep it stationary as long as required
by such officer. In our opinion Rule 84
must be read as a whole and it connote be
read in part. The purpose of Rule 84 is to
see that there is no evasion of Trade Tax
and hence it permits inspection of goods
and detention of goods where the officer
concerned is prima-facie of the opinion
hat tax is being evaded and the law is
being infringed.

9. So far as the stopping of the
vehicle is concerned in our opinion this
can only be for the purposes of either
inspection of goods or unloading the
goods from the vehicle. This act should
not take a coupe of hours or so.

10. In our opinion Rule 84(1) does
not permit the Trade Tax authorities to
stop or detain the vehicles for a period
longer than what is required for inspection
of the goods or unloading of the goods.
This in our opinion, is a correct and
reasonable interpretation of Rule 84(a). In
the present case the vehicles were
detained for more than 5 months which
was clearly illegal as held by various
decisions of this Court , referred to above.
Earlier this Court in such cases for wrong
and illegalities committed by public
servants relegated the petitioners to the
remedy of filing a Civil Suit for damages
but in exceptional cases the Courts have
granted damages also in writ jurisdiction
e.g.
in
Hindustan
Petroleum
3All] The Commissioner, Sales Tax, U.P., Lucknow V. M/s Mohkampur Tea Garden 260
Corporation Ltd. And another Vs.
Dolly Dass, JT 1999(3)SC 61.

11. In our opinion the time has come
when these illegalities by the authorities
of detaining and seizing the vehicles must
be strongly checked otherwise the law
will continue to be violated by such
authorities.

In connected similar writ petition No.
355 of 2000, Hindustan Transport
Agency Vs. State of U.P. and another,
Sri Kunwar Saksena, learned counsel for
the petitioner invited our attention to
Annexure 2 to the writ petition. Where the
Sales Tax Authorities, who seized the
vehicles on 4.4.2000 directed on the same
day that the petitioner's vehicle is not
only detained but the petitioner has to
arrange for security of the goods and
vehicle, vide Annexure 2.The petitioner
made representation vide annexures 5 and
6 praying that the vehicle be released and
submitted that the petitioner was suffering
daily loss of Rs.4000/- due to detention of
the vehicle. However, the vehicle was
only released in pursuance of the interim
order dated 21.4.2000 on 25.4.2000

12. We were inclined to grant
compensation to the petitioners in these
cases instead of relegating the petitioner
to file Civil Suites as we want to stop the
illegal practice of detaining and seizing of
the vehicles by the U.P. Trade Tax
authorities. Everyone knows that a Civil
Suit often takes 10 years or more to
decide. And hence we are not relegating
the petitioner to that remedy. However,
Sri
Pradeep
Kumar
Gupta,
learned
Additional
Chief
Standing
Counsel
requested that he will himself speak to the
Commissioner, TRADE TAX.U.P. and
convey the displeasure of this Court , and
the Commissioner will ensure that these
illegalities do not occur in future. WE
accordingly direct the Commissioner,
Trade Tax to charge sheet the officials
who had committed these illegalities and
proceed Departmentally against them.
The Commissioner shall also grant proper
compensation to the petitioners in both
these cases commensatra to the loss they
have suffered preferably within two
months from the date of production of a
certified copy of this order in accordance
with law. The Commissioner shall also
issue insurer to all trade tax authorities for
the with that such illegalities must stop
immediately.

13. Both the petitioners are disposed
of with the aforesaid observations. The
Registrar General of this Court shall send
a copy of the this judgment to the
Principal Secretary, Institutional Finance
(Trade Tax), U.P. Lucknow who in turn
will forward it to all the concerned Trade
Tax authorities including the check post
Officers to ensure strict compliance of
this judgment.

Certified copy of this order will also
be given to the learned counsel of the
parties on payment of usual charges
within two days.

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