Judgment:
D.P. Wadhwa, J.
(1) This is the plaintiffs second appeal. He succeeded in the first court in a suit for malicious prosecution which was decreed for Rs. 500.00 in his favor but the first appellate court reversed that judgment.
(2) Surat Singh, the appellant, filed a suit for recovery of Rs. 500.00 against four respondents. The suit was brought on 11-5-1970. Defendant No. 3 was the Commissioner of the Municipal Corporation of Delhi. He is not being proceeded against and is not a respondent before me. There are, thereforee, three respondents who were originally defendants Nos. 1,2 and 4. As the title would show defendant No. 1 is the Municipal Corporation of Delhi, a body corporate constituted under the Delhi Municipal Corporation Act, 1957. Defendant No. 2, Delhi Electric Supply Undertaking (for short 'the DESU') is one of the undertakings of the first defendant under the aforesaid Act. One of the purposes of the Desu is to provide electricity to various persons. Under Section 277 of the Delhi Municipal Corporation Act, Delhi Municipal Corporation have all the powers and obligations for a licensee under the Indian Electricity Act, 1910 (for short 'the Electricity Act') in respect of whole of the Union Territory of Delhi and Chapter-XIII of the Delhi Municipal Corporation Act relating to electricity and supply shall be deemed to be the license of the Municipal Corporation of Delhi for the purpose of the Electricity Act. Defendant No. 4 P.C Gupta at the relevant time was working as Assistant Engineer (Construction and Augmentation) in the office of defendant No. 2.
(3) One Chander Bhan resident of village Mangeshpur was sanctioned electric connection for his tubewell by Desu, service line of which was proposed to be installed through the fields of Surat Singh, the plaintiff and his brother Mansa Ram. On 2-2-1969 Mansa Ram wrote a letter (Ex. P-3) to the Zonal Superintendent, Desu, slating therein that he had come to know that the electric lines to the tubewell of Chander Bhan were being laid through his fields and that installation of electric poles and wires would cause considerable damage to his fields. He suggested that overhead line could be laid through another route. He said he bad objection to the line being laid through his fields and if the line was laid through different route he was prepared to bear all the expenses incurred for that purpose. On 17-2-69 Mansa Ram wrote yet another letter (Ex. P-4) to the Executive Engineer, Desu to same effect. He said service line which was being laid was so designed that the poles to be planted will unnecessarily block a part of his land thereby causing nuisance to him to plough his fields smoothly. It was pointed out that the inspector of Desu who had visited the fields of Mansa Ram had got installed three poles from the proposed tubewell site up to the fields of one Ishwar Singh, pradhan of the village. Mansa Ram wrote that he objected to the installation of pole in his fields and suggested the inspector to change the route of service line. Mansa Ram also wrote that he handed over a letter to that effect to the inspector at the site and he said he under took to pay any additional amount, if involved, in changing the route. In this letter Mansa Ram also gave the proposed alternative route. Defendant P.C. Gupta was the Zonal Superintendent at that time to whom letter Ex. P-3 was addressed. At this stage reference may be made to the statement of defendant-P.C. Gupta appearing as DW-1, the sole witness for the defendant. He said that for giving electric supply he was to adopt the shortest route. For supply of electricity to the tubewell of Chander Bhan seven poles were to be installed. While, three poles bad been installed remaining two/three poles. 338 were to be installed on the fields of the plaintiff. He said Mansa Ram brother of Surat Singh, the plaintiff, had come to him and objected that the poles should not be fixed on the land of the plaintiff and that those be fixed at any other alternative route. He said this proposal was not agreed to. He said for the first time it was on 4th or 5th March, 1969 that he had gone to the spot to fix the remaining poles and the plaintiff resisted. He said he informed his Executive Engineer and the Assistant Engineer and they asked him to take police aid. According to P.C. Gupta he went to the spot on 7-3-1969 along with the police to fix the poles. He said when he started fixing the first pole on the land of the plaintiff, the plaintiff and two ladies resisted and at that time the police took the plaintiff into custody. The two ladies were not touched as there was no lady police available there at that time. Mr. Gupta said that whatever he did was a part of his duty and under the instructions of his superior officers. Then he stated that he had no malice against the plaintiff and due to detention the plaintiff did not suffer any damage nor was he defamed. Lastly, he stated that it was not necessary to get the consent of the plaintiff before fixing the electric poles in his land.
(4) On the Fir (Ex. P-l) lodged by the defendant P.C. Gupta a case under Section 186 of the Indian Penal Code was registered against the plaintiff on 7-3-1969. It is not disputed that on that account the plaintiff was arrested and later released. Plaintiff has said he was detained by the police for twenty four hours. Section 186 provides that 'whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.' The case against the plaintiff was, however, cancelled. It was on the ground that under Section 12 of the Electricity Act before laying the over-headlines and fixing poles, permission of the District Magistrate, Delhi was required. According to the police this permission had not been taken and the Desu authorities could not lay over-head lines or fix poles without there being no objection from the owner of the land in question. Police investigation showed that the plaintiff rightly obstructed Desu authorities. It was found that no case was made out against the plaintiff. The plaintiff said that the defendant P.C. Gupta mischievously and wrongly lodged a Fir against him knowing the same to be false and roped in ladies of his house when those ladies, to the knowledge of the defendant Gupta were not present at the site in question, in fact the plaintiff alleged that he was called from his house on 7-3-1969 and was got arrested on the false pretext of his offering physical resistance. He said it was only for that purpose that defendant-Gupta along with police officials had come to the village of the plaintiff on that day. The plaintiff thus claimed Rs.500.00 as damages. He said because of the false report and wrongful arrest he was disgraced, humiliated and suffered mentally.
(5) The defendants filed a common written statement denying the allegations as contained in the plaint. On pleas of the parties following issues were framed:
(1)Whether the suit is properly filed (2) Whether title suit is maintainable by virtue of Section 477 of the Dmc Act (3) Whether the plaintiff has any cause of action against the Defdt? If not its effect (4) Whether any valid notice under Section 478 Dmc Act was served on Delfts (5) Whether the plaintiff is entitled to any damages on the facts given in the Plaint. (6) Relief.
(6) As noted above the trial court decreed the suit against defendants 1, 2 and 4 while dismissing the suit against defendant No. 3, Commissioner, Municipal Corporation of Delhi.
(7) The defendants appealed. They, however, did not challenge the findings on issues No. 1 and 4. The first appellate court held that by virtue of Section 10 of the Indian Telegraph Act, 1885 (for short 'the Telegraph Act') which was made applicable by virtue of Section 51 of the Electricity Act, Desu authorities had unrestricted powers to lay over-head electric lines and fix poles without permission of the owner of the land. It also held that no personal malice was alleged or proved and that malice could not be presumed in the circumstances and as such it was of the opinion that no damages could be claimed It held that at the most the plaintiff was entitled to recover only nominal damages amounting to Rs 50.00 . It also held that the defendants were protected under Section 477 of the Delhi Municipal Corporation Act as the action taken by them could be said to have been in good faith. In the result the judgment and the decree of the trial court were set aside.
(8) The plaintiff led evidence to show as to why he was arrested by the police, kept in custody and that he was a respectable person of his village. He also stated as to how he suffered in his reputation in his village and also as to how he suffered mentally. As noted above, P.C. Gupta-defendant No. 4 appeared as the only witness on behalf of the defendant. He said there was written permission of the Executive Engineer and the Assistant Executive Engineer to pass the line in order to adopt the shortest route and to take the police aid but he said he did not bring those permissions at the time of his atatement.
(9) At this stage I may note the relevant provisions of law relating to over-head lines and fixing of poles by a licensee. Section 12 of the Electricity Act, in so far it is relevant, provides as under :-
'12.(1) Any licensee may, from time to time but subject always to the terms and conditions of his license, within the area of supply or, when permitted by the terms of his license to lay down or place electric supply lines without the area of supply, without that are- (a) open and break up the soil and pavement of any street, railway or tramway; (b) open and break up any sewer, drain or tunnel in or under any street, railway or tramway; (c) lay down and place electric lines and other works; (d) repair, alter or remove the same; (e) do all other acts necessary for the due supply of energy. (2) Nothing contained in Sub-section (1) shall be deemed to authorise or empower a licensee, without the consent of the local authority or of the (owner or occupier) concerned, as the case may be, to lay down or place any electric supply-line, or other work in, through or against any building, or on, over or under any land not dedicated to public use whereon, where over or whereunder any electric supply-line or work has not already been lawfully laid down or placed by such licensee : Provided that any support of an (overhead line) or any stay or strut required for the sole purpose of securing in position any support of an (overhead line) may be fixed on any building or land or, having been so fixed, may be altered, notwithstanding the objection of the owner or occupier of such building or land, if the District Magistrate or, in a Presidency town * * *, the Commissioner of Police by order in writing so directs : Provided also, that, if at any time the owner or occupier of any building or land on which any such support, stay or strut has been fixed shows sufficient cause, the District Magistrate or, in a Presidency-town * * *, the Commissioner of Police may by order in writing direct any such support, stay or strut to be removed or altered. (3) When making an order under sub-section (2) the District Magistrate or the Commissioner of Police, as the case may be, shall fix the amount of compensation or of annual rent or of both, which should in his opinion be paid by the licensee to the owner or occupier. (4) Every order made by a District Magistrate or a Commissioner of Police under Sub-section (2) shall be subject to revision by the State Government.' Under Section 51 of this Act the licensee can exercise, in certain cases, all
powers of telegraph authority. This section is as under :
'51.Notwithstanding anything in section 12 to 16 (both inclusive) and sections 18 and 19, the (State Government) may, by order in writing, for the placing of (electric supply lines, appliances and apparatus for the transmission of energy or for the purpose of telephonic of telegraphic communications necessary for the proper co-ordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying energy to the public under this Act), subject to such conditions and restrictions (if any) as the (State Government) may think fit to impose, and to the provisions of the Indian Telegraph Act, 1885, any of the powers which the telegraph-authority possesses under that Act, with respect to the placing of telegraph-lines and posts for the purposes of a telegraph established or maintained by the Government or to be so established or maintained.'
Chief Commissioner, Delhi, issued a notification on 19.1.54 under Section 51 of the Electricity Act conferring on the Delhi State Electricity Board, New Delhi Municipal Committee and Upper Jumna Valley Electricity Supply Co. Ltd., Meerut, power under Section 10 of the Telegraph Act which the telegraph authority had with respect to the placing of telegraph lines and poles subject to limitations mentioned therein. This notification is as under:
'NO.F. 18(38)/52-L.S.G.-In exercise of the powers conferred by Section 51 of the Indian Electricity Act, 1910, the Chief Commissioner Delhi, is pleased to confer upon the licensees, named below, all the power, which the Telegraph authority possess under the Indian Telegraph Act, 1885, with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained by the Government or to be so established or maintained, such powers being subject to the limitations specified in/clauses (b), (c) and (d) of the proviso to Section 10 of the Indian Telegraph Act, 1885. 1. Delhi State Electricity Board, New Delhi. 2. New Delhi Municipal Committee, New Delhi. 3. Upper Jumna Valley Electricity Supply Co. Ltd. Meerut.' It is not disputed that this notification would apply to DESU. Section 10 of the Telegraph Act is as under :'
(10) Power for, telegraph authority to place and maintain telegraph lines and posts-The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along or across, and posts in or upon, any immoveable properly :
PROVIDED that (a) the telegraph authority shall not exercise the powers conferred by this section except for the purposes of a telegraph established or maintained by the (Central Government), or to be so established or maintained; (b) the (Central Government) shall not acquire any right other than that of user only in the property under, over along, across, in or upon which the telegraph authority places any telegraph line or post ; and (c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control of management of any local authority, without the permission of that authority ; and (d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and when it has exercised those powers in respect of any property other than that referred to in clause (c), shall pay full com- pensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.'
(10) This section has to be read, with Section 16 of the Telegraph Act which prescribes the limitation and gives the extent to which the powers conferred by Section 10 of the Telegraph Act could be exercised and this Section 16 may be reproduced as hereunder : '16. Exercise of powers conferred by Section 10, and disputes as to compensation, in case of property other than that of a local authority- (1) If the exercise of the powers mentioned in Section 10 in respect of property referred to in clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them. (2) If, after the making of an order under Sub-section (1), any person resists the exercise of those powers, or, having control overthe property, does not give all facilities for their being exercise, he shall be deemed to have committed an offence under section 188 of the Indian Penal Code. (3) If any dispute arises concerning the sufficiency of the compensation to be paid under section 10, clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situated, be determined by him. (4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the court of the District Judge such amount as he deems sufficient or where all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under Sub-section (3), that amount ; and the District Judge, after giving notice to the parties and hearing such of them as desired to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it. (5) Every determination of a dispute by a District Judge under Sub-section (3) or Sub-section (4) shall be final : Provided that nothing in this Sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same. A bare reading of clause (d) of Section 10 read with Section 16 of the Telegraph Act would show that Desu has not got unrestricted powers to fix electric poles or to install over-head lines over the land of any person when 343 there is resistance or obstruction by that person. Sub-section (1) of Section 16 provides that if in the exercise of powers conferred by clause (d) of Section 10, there is any resistance or obstruction, the District Magistrate may in his discretion order that the telegraph authority shall be permitted to exercise those powers. It is obvious thereforee, that before passing any such order the District Magistrate will give hearing to the person so resisting or obstructing the telegraph authority in the exercise of its powers. It is only after passing of the order by the District Magistrate if the person resisting the exercise of powers by the telegraph authority or does not give all the facilities for the exercise of those orders when that person had control over the property, he is deemed to have committed an offence under Section 188. This section 188 of the Indian Penal Code provides for punishment for disobedience to order duly promulgated by a public servant. Under Subsection (3) of Section 16 of the Telegraph Act a dispute concerning the sufficiency of the compensation to be paid under clause (d) of Section Ao has to be determined by District Judge by referring the dispute to him by either of the parties. Further, it may be noted that the notification dated 19.1.54, aforementioned and to which reference was made as well by the lower appellate court, confers powers on the licensee only and confers no power on any public officer or any other person engaged in the supply of energy to public under the Electricity Act. No other provision of law or any other notification has been brought to my notice in support of the contention that Desu authorities have right to fix electricity poles in private property whenever and wherever they so wanted.
(11) In Bharat Plywood and Timber Products Private Ltd. v. Kerala State Electricity Board Trivandrum and others : AIR1972Ker47 ) a notice was issued by an Assistant Engineer of the respondent Electricity Board to the petitioner for drawing a 11 K.V. line across the land of the petitioner for the purpose of supplying electric energy to the fishing harbour nearby. It was claimed that by virtue of certain notification issued under Section 51 of the Electricity Act, the Assistant Engineer had some powers for placing of electricity supply lines, appliances and apparatus on the property of others for the transmission of energy as that possessed by the telegraph authority under the Telegraph Act for the purpose of placing telegraph lines. The Full Bench observed that Sections 10 and 16 of the Telegraph Act had to be read together and where there was resistance or obstruction the power under Section 10 could be exercised only when the District Magistrate passed an order under Section 16(1). it further observed that when a public officer, licensee or other person on whom the powers under the Telegraph Act laid been conferred by the State Government and under Section 51 of the Electricity Act was resisted or obstructed, that authority had no alternative but to approach the District Magistrate under Section 16(1) of the Telegraph Act for an order enabling him to exercise those powers. The court also observed as under :-
'AS the provisions stand, we do not think that it is obligatory on the part of the competent authority to issue a prior notice before exercising the powers under Section 10 of the Telegraph Act. Before passing an order under Section 16(1) the District Magistrate has necessarily to issue notice to all persons interested and give them an opportunity to state their objections, if any. Without giving such an opportunity he will not have any material, at any rate, adequate material to decide whether he should pass an order that the authority shall be perroitted. No doubt, it will be proper and certainly desirable that the owner or occupier should be informed before acts are done on his property. It is conceivable that, when he is so informed, the exact location and the alignment of the line can be settled without resistance or obstruction by mutual understanding. However that be, as we understand the provisions in the Telegraph Act, Part Iii, we do not consider it necessary that there should be prior notice.'
(12) In The Scindia Potteries Private Ltd. v. Purolator India Ltd. : AIR1980Delhi157 the Division Bench was concerned with certain provisions of Telegraph Act including Sections 10 and 16 thereof. One of the contentions raised was that the telephone posts and telegraph lines were initially installed by the telegraph authority in violation of the provisions of Section 16(1) of the Telegraph Act and, thereforee it was not a valid exercise of power conferred by Section 10. The court held that the exercise of power under Section 10 was not conditional in compliance with the provisions of Section 16(1) of the Telegraph Act and that the power given under Section 10 was absolute and that it was only when there was resistance or obstruction in the exercise of that power that occasion to approach District Magistrate arose. The court further observed that if there was no resistance or obstruction there was no occasion for the telegraph authority to approach the District Magistrate.
(13) The question as to whether before laying over-head electric lines or fixing the poles notice should have been given to the owner or person in possession of the land by the Desu authority is not before me. Here is a case where in spite of the resistance by the plaintiff the defendant went on fixing poles for the purpose of laying over-head electric lines over the land of the plaintiff. His protest went unheeded. Rather, he was sent to police lock up on a complaint filed by P.C. Gupta-defendant, though he says he did so on the authorities of his superior officers. The act of fixing poles and laying over-head electric lines in view of the resistance offered by the plaintiff and without there being any permission of the District Magistrate was obviously unauthorised. I would not say if the defendant committed either civil or criminal trespass on the land of the plaintiff but they certainly exceeded their powers when they purportedly acted under Section 10 and 16 of the Telegraph Act.
(14) In a suit for malicious prosecution in order to succeed the plaintiff must prove that the following conditions have been fulfillled : (1) that the criminal proceedings were instituted by the defendant ; (2) that in doing so the defendant acted without reasonable and probable cause; (3) that the defendant acted maliciously and (4) that the criminal proceedings terminated in favor of the plaintiff in his acquittal or discharge and that the defendant was unsuccessful. It is not disputed that the Fir lodged by the defendant-P.C. Gupta, which resulted in the arrest of the plaintiff was the beginning of institution of criminal proceedings against the plaintiff and the Fir was ultimately cancelled and criminal proceedings dropped against the plaintiff. First and fourth essential ingredients of a suit for malicious prosecution, thereforee, stand satisfied in the present case. There was resistance by the plaintiff to the act of the defendants in fixing electric poles and overhead electric lines through his land. Because of this resistance the defendants could not fix the poles and over-head lines without permission of the District Magistrate who before according such permission had to hear plaintiff. The act of the defendant in fixing the pole and laying overhead electric lines, as noted above, was clearly unauthorised. Laying of high tension electric wire through the land of the plaintiff without his permission was a very serious matter. Electric poles had to be fixed with stay wires. Electricity was to be supplied for the purpose of tubewell and could not be less than 440 volts. Then, there is question of maintenance of this electric line and if this is snapped by any chance, it could well endanger the life of any person using the land or cattle grazing there. The plaintiff wrote as many as two letters staling that fixing of poles will obstruct smooth ploughing of his field. He further offered to pay any expense incurred for changing the route if the authorities so required. No notice was taken of these letters and rather it would appear the request of the plaintiff was treated with contempt. The defendant-P.C. Gupta says that he acted, both in getting the police aid and fixing the electric poles, with written permission of his higher officers, but no such permission is forthcoming on the record. He may well have got the written permission from his superior officers but that has no relevance or consequence to the plaintiff. He was not told as to why his request was not acceded to. The defendants even do not talk of any compensation which would have been payable to the plaintiff for the damage caused to his land by fixing electric poles. There is nothing on the record to show that the defendants had any genuine plea or reasonable ground that they had a right to fix electric poles in the fields of the plaintiff to lay over-head electric lines. It cannot be said that the defendants were not aware of the scope of their powers. No resolution of the Municipal Corporation of Delhi has been shown where any particular officer was authorised to perform the function of the corporation which was the licensee and no resolution or order has either been shown rejecting or even considering the representation of the plaintiff. Further the acts which are to be performed under Section 10 of the Telegraph Act by the licensee under the notification issued under Section 51 of the Electricity Act and as aforementioned could not be performed by public officer in whose favor there was no notification. To me it appears that the defendants have acted without reasonable and probable cause in filing the report against the plaintiff with the police and thus initiating criminal prosecution against him.
(15) Malice in its ordinary meaning is the wish, desire or intention to hurt one. In Salmond and Houston Law of torts the learned authors say that 'malice means the presence of some improper and wrongful motive-that is to say, an intent to use the legal process in question for some other than its. legally appointed and appropriate purpose. It can be proved either by show ing what the motive was and that it was wrong, or by showing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor.' In certain circumstances want of reasonable cause has been held to be sufficient evidence of malice when there is sufficient evidence that there was no genuine belief in in the accusation made. This is one of that type of cases. In the report lodged with the police defendant-P.C. Gupta said that due to the interference by the plaintiff the authorities had suffered a loss of heavy amount and wanted action to be taken against the plaintiff and also wanted help to execute the work. The plaintiff had right to resist. Instead of seeking permission of the District Magistrate before carrying on any further work, the plaintiff was got arrested in an authoritarian manner. For one thing, ignorance of law is no excuse and secondly when there was resistance or obstruction the defendants should have got examined the legal position to know the extent of their powers and instead of doing that they went ahead with the execution of the work without any authority. The authorities, it would appear, felt offended by the action of the plaintiff and wanted to teach him a lesson for what he did as of right.
(16) In Smt. S.R. Venkataraman v. Union of India & Anr. : (1979)ILLJ25SC the Supreme Court while approving the dictum of Viscount Haladane in Shearer v. Shields (1914) Ac 808 observed that malice in its legal sense meant malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause.
(17) I am thus of the view that the fourth essential ingredient that the defendant acted maliciously also stands proved.
(18) The defendants also relied on Section 477 of the Delhi Municipal Corporation Act which protects certain acts of the municipal corporation and its officers. This section is as under :-
'477.No suit or prosecution shall be entertained in any court against the Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any municipal officer or other municipal employee, for anything which is in good faith done or intended to be done, under this Act or any rule, regulation or bye-law made there under.'
The question then arises if the act complained of was done in good faith. The term good faith is defined in Section 3(22) of the General Clauses Act, 1897 which applies to all Central Acts including the Delhi Municipal Corporation Act. Under this section 'a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not.' The crucial test is if the thing has in fact been done honestly and whether it is done negligently or not would not be material. Whether a thing has been done honestly is a question of fact to be determined with reference to the circumstances of a particular case. In Municipality of Bhiwandi and Nizampur v. Kailash Sizing Works : [1975]2SCR123 the question turned on the expression 'done in good faith' and whether the municipality could be said to have acted honestly. Section 167 of the Bombay District Municipal Act conferred protection on the Municipality in respect of anything in good faith done or intended to be done. Para 12 of the judgment is quite apt and may be reproduced as under :-
'12.In Jones v. Gordon (1877) 2 AC 616 Lord Blackburn pointed out the distinction between the case of a person who was honestly blundering and careless, and the case of a person who has acted not honestly. An authority is not acting honestly where an authority has a suspicion that there is something wrong and does not make further enquiries. Being aware of possible harm to others, and acting in spite thereof, is acting with reckless disregard of consequences. It is worse than negligence, for negligent action is that, the consequences of which, the law presumes to be present in the mind of the negligent person, whether actually it was there or not. This legal presumption is drawn through the well known hypothetical reasonable man. Reckless disregard of consequences and mala fides stand equal, where the actual state of mind of the actor is relevant. This is so in the eye of law, even if there might be variations in the degree of moral reproach deserved by recklessness and mala fides'.
(19) There is no presumption in law that official act has been regularly performed when the act itself is shown on the face of it to be unauthorised or not legal. In the facts of the present case the defendants cannot take shelter under the provisions of Section 477 of the Delhi Municipal Corporation Act. Their action smacks of reckless disregard of the provisions of law and particularly when they were put to notice by various representations of the plaintiff and the lawful resistance offered by him. The actions of the defendants have all the attributes of a bad faith. No argument is needed to show that the plaintiff did have a cause of action against the defendants for the injuries suffered by him. Apparently he was wrongfully confined at the behest of the defendants while acting illegally.
(20) For all the sufferings undergone by the plaintiff he only wanted damages amounting to Rs. 500.00 . Even this amount the lower appellate court has found to be on the higher side. He said if the plaintiff was at all entitled to any damages a nominal sum of Rs. 50.00 would meet the ends of justice. I am unable to appreciate the reasoning advanced by the court below. The plaintiff, a citizen, had to undergo the agony of being in the police lock up for more than twenty four hours for no fault of his. No evidence is needed to show that he would have suffered mentally and put to shame before his fellow villagers. Yet, the learned appellate court finds the amount of Rs. 500.00 claimed by the plaintiff as damages on the higher side. I would rather think it is on the lower side.
(21) I would, thereforee, hold issues No. 2, 3, 5 and 6 in favor of the plaintiff. The result is that judgment and decree of the lower appellate court is set aside and that of the trial court restored. The appeal is allowed with costs throughout.