Judgment:
B.R. Arora, J.
1. This appeal is directedagainst the decree and judgment dated January 27, 1979, passed by the AdditionalDistrict Judge, Sri Ganganagar, by which theplaintiffs suit was decreed against the appellant .
2. Plaintiff M/s. Behari Lal Banwari Lal, Gramin Market, Sri Ganganagar, filed a suit for declaration and recovery of the bus along with the damages of Rs. 13,000/- from the defendant No. 1 and in the alternative for the recovery of Rs. 20,000/- against the defendants Nos. 2, 3 and 4, viz., Hazoof Singh, Gurdayal Singh and Gurlabh Singh. The case, as set-up in the plaint, is that on July 2, 1969, under a hire-purchase agreement, the plaintiff delivered his bus No. RJK 6794 to the defendant No. 2 Hazoor Singh. The defendant No. 3 Gurdial Singh and No. 4 Gurlabh Singh stood sureties for the defendant No.2. It was, inter alia, agreed that Hazoor Singh in all, will pay Rs. 16,800/- in twelve instalments of Rs. 1,400/- each towards the price of the bus. It was, also, agreed that till the whole amount is paid, the ownership of the bus will remain with the defendant No, 2. It was further agreed that in case of default in the payment of instalments, the plaintiff will be entitled to interest @ 12% per annum and will, also, have a right to discern, the contract and take back the possession of the bus. Defendant Hazoor Singh did not make payment of any instalment and paid only Rs. 500/- on December 17, 1969, and, therefore, the plaintiff, on March 25, 1970, cancelled the agreement and approached the defendant No; 2 to regain the possession of the bus. At that time, the plaintiff was informed that the vehicle has already been attached by the Assistant Commercial Taxes Officer (R.P.G.T.), Sri Ganganagar, on January 2, 1970, against certain tax dues of Buses Nos. RJK 3107 and RJK 5202 belonging to New India Transport Co-operative Society Ltd. The case of the plaintiff, further, is that after the seizure of the bus, the bus was' kept in open by the respondent No. 1 and as it was exposed to sun, air and shower and, therefore, its tyres, tubes, window glasses and the body were damaged, which resulted in a total damages of about Rs. 10,500/-. The plaintiff, also, claimed a sum of Rs. 2,500/- as loss of interest. The suit was contested by all the defendants. Defendant No. 1 contested the suit mainly on the ground that there was no hire-purchase agreement between the plaintiff and the defendant No. 2 and it was simply a case of advancement of loan by the plaintiff to the defendant No. 2 for the purchase of the bus and as Hazoor Singh (Defendant No. 2) was the registered owner of the bus and, therefore, the bus was attached by the respondent No. 1 for the realization of the amount of arrears of tax outstanding against, the defendant No. 2. The case of the defendants Nos. 3 and 4, as set-out in their respective written statements, was that though the defendant No. 2 took the bus under a hire-purchase agreement from the plaintiff for a consideration of Rs. 16,800/- and the respondents Nos. 3 and 4. stood sureties for him, but as the defendant No.2 did not pay the monthly instalments and, therefore, the contract stood rescinded on August 2, 1969 itself and if the bus is thereafter attached by the defendant No. 1 then they are not liable for if. On the basis of these pleadings, the learned trial Court framed eight issues. Issue No. 7 was with respect to the jurisdiction of the Court and, therefore, the trial Court, by its order dated April 22, 1974, decided this issue as preliminary issue and held that the Court has jurisdiction to try the suit.
3. The plaintiff, in support of its case,examined four witnesses and placed on recordseven documents. Ex. 1(c) is the Entry fromthe Register of the Registrar of Firms, Ex,2(c) is the Certificate of Registration andFitness of the bus No. RJK 6794, Ex. 3(c) isthe hire-purchase agreement, Ex. 4(c) is theletterdated September 14, 1971, by which theplaintiff was informed that its objections havebeen rejected. Ex. 5(c) is the notice dated June21, 1971, under Section 80, C.P.C. given by theplaintiff to the defendants and Ex. 6(c) andEx. 7(c) are the two A.D. receipts. Thedefendant No. 2, in support of his case,examined two witnesses only and did notproduce any document, while the defendantsNos. 3 and 4, also, examined two witnessesand placed:on record one document Ex. A.I-- the Auction Report. The learned trialCourt, by its decree and judgment datedJanuary 27, 1979, decreed the plaintiffs suitagainst the defendants Nos. 2, 3 and 4/1 to4/4 for an amount of Rs. 20,000/-(Rs. 16,300/- as Principal and Rs. 3,700/- asinterest) along with .12% pendente lite andfuture interest and dismissed the suit againstthe defendant No. 1, the State of Rajasthan.It ,is against this decree and judgment datedJanuary 27, 1979, passed by the learnedAdditional District Judge, Sri Ganganagar,that the defendant No. 2 Hazoor Singh haspreferred this appeal. No appeal or cross-objections were filed by the plaintiff or by theState. Even the plaintiff did not appear inspite of service of notice.
4. It is contended by the learned counsel for the appellant that the contract stood rescinded .when the defendant-appellant did not pay the first instalment, which became due on August 2, 1969. It is, also, .contended by the, learned counsel for the appellant that no liability can be fastened upon the appellant for the illegal action of the defendant No. 1 --the State of Rajasthan -- and as it was only on account of the illegal action of the defendant No. 1 that the plaintiff suffered the injury and, therefore, the decree could be passed only against the defendant No. 1 and not against the defendant-appellant. The learned Deputy Government Advocate, appearing for the State,1 on the other hand, has supported the decree and judgment passed by the Court below. A preliminary objection was, also, raised by the respondent No. 2 the State of Rajasthan that no relief, as prayed for by the appellant, can be granted to him as the plaintiff has not preferred any appeal.
5. I have considered the rival submissions made by the learned counsel for the parties.
6. Before considering the appeal on merit, it would be proper to first dispose of the preliminary objections raised by the respondent No. 2. Order 41, Rule 33 of the Civil P.C. deals with the powers of the Court of appeal. It provides that the appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require. The object of Order 41, Rule 33, C.P.C. is to enable the appellate Court to do complete justice between the parties and if the justice of the case may require, to pass any decree or order which ought in law to have been passed by the trial Court but not passed by it. If the circumstances of the case and the interest of justice demand the variation of the decree then the appellate Court can deal with the case in a way which seems to be equitable to all :the parties concerned and to vary or modify the ; decree as the nature of the case may require. The rule further empowers the appellate Court to make whatever order/decree it seems fit, not only as between the appellant and the respondents but, also, as between the respondent and the respondents. Filing Or non-filing of appeal or cross-objections does not by the appellate Court in passing a decree in favour Of the respondents if the question raised properly arise out of the judgment of the lower Court and the parties are before the appellate Court, though may be in a different capacity. The rule has been couched in such a way that it gives wide discretion to the appellate Court to consider any objection against any part of the judgment or decree of the lower Court and empowers the Court to vary or reverse the same in order to avoid inconsistent, contradictory and unworkable decision. The perliminary objection/raised by the learned counsel for the respondent, has, thus, no merit and deserves to be dismissed.
7. Now coming to the merit, of the case. The first contention raised by the learned counsel for the appellant is that as the defendant-appellant did not make the payment of the first instalment and paid only Rs. 500/- on December 17, 1969, and, therefore, the contract stood rescinded on August 2, 1969. Condition No. 5 of the Hire Purchase Agreement (Ex. 3(c)) reads as under :--
'The owner may terminate with or withoutnotice the contract of hire and forthwith takeand recover the possession of the vehicle: (a)if any montly hire or part thereof is in arrear -and left unpaid for a period of seven days afterthe date fixed for its payment for a reasonwhatsoever and particularly notwithstandingany claim which the hirer may have in respectof the policy of the insurance hereinaftermentioned..............'
It is not in dispute that the Hire Purchase Agreement was entered into on July 2, 1969, and the delivery of the bus was given by the plaintiff to the defendant No. 2 on the same date and the defendant No. 2 did not make any payment against the instalments and paid only Rs. 500/- on December 17, 1969. Neither he made any payment against the instalments nor returned the bus. PW 1(c) Banwari Lal has stated that the defendant No. 2 did not make any payment against the instalments and continued with the possession of the bus. He cancelled the contract as per Condition No. 5 of the Hire Purchase Agreement in the . last week of March, 1970, and not earlier to that and contacted the defendant No. 2 Hazoor Singh for the delivery of the bus, but he was informed that the bus has been attached and seized by the A.C.T.O. (R.P.C.T.) for the recovery of the outstanding tax amount and is lying at the Police Station. PW2(c) Brij Lal only a witness to the execution of the agreement Ex. 3(c) and he Has identified the signatures of Hazoor Singh (defendant No. 2) and two sureties Gurdial Singh and Gurlabh Singh. P.W.3(c) Surendra Pal Singh and P.W.4(c) Kh'eta Singh ate the two witnesses, who have been produced by the plaintiff to prove the contract. Therefore, the relevant evidence on this point, produced by the plaintiff, is only of P.W. 1(c) Banwari Lal. D.W. 1/D.2 Hazoor Singh has stated that he took the delivery of the bus from the plaintiff under a hire purchase agreement Ex. 3(c) and he had to make payment of the instalments of Rs. 1,400/- per month and the first instalment was to be paid on August 2, 1969, which he could not pay. After ten-twelve days of August 2, 1969, the plaintiff came to him along with his guarantors Gurdial Singh and Gurlabh Singh and informed him that as he had not made the payment of the first instalment and, therefore, he has cancelled the contract and asked him to return the bus. In the cross-examination, this witness has admitted that when the plaitniff came to him along with the two guarantors; at that time the bus was not with him and he informed Banwari Lal that the driver and the Conductor of the bus had taken the bus and they would return after one or two days. He has admitted that no written notice, cancelling the contract, was given to him by the plaintiff. He has, also, admitted that he neither informed the plaintiff regarding the attachment of the bus nor he went td him to return the bus. He has, also, admitted that except Rs. 500/- he did not pay any amount against the instalments of the price of the bus. He has, also, admitted that he purchased the bus for a consideration of Rs. 16,800/-. In the cross-examination he has stated that he cannot say that Banwari Lal along with the guarantors came to him and cancelled the contract after 2 or 2 1/2 months of trie attachment of the bus; He has, also, admitted that he made the payment of Rs.500/- 1 or 1 1/2 months prior to the attachment of the bus. Similar is the statement of DW 1/D-3-D4. Gurudayal Singh. He has stated that when Hazoor Singh did not make payment of the first instalment on. August 2, 1969, then Banwari Lal came to him, and asked him that as Hazoor Singh has not made payment of the first instalment and, therefore, he has cancelled the agreement and as such the bus may be returned to him. He along with Gurulabh Singh went to Hazoor Singh and asked him that as the agreeement has been cancelled, he should, therefore, return the bus to the plaintiff, but as the bus was not available as the Conductor and the driver of the bus had taken the bus out of the town and, therefore, the delivery of the bus could not be given to the plaintiff; In cross-examination, he has stated that he cannot say whether he along with Gurulabh Singh and Banwari Lal went to Hazoor Singh two or 2 1/2 months after the attachment of the bus. Though the two witnesses, viz., DW 1/D.2 Hazoor Singh and DW 1/3D-4 Gurdial Singh, in the examination-in-chief have stated that the agreement was cancelled after ten or twelve days of August 2, 1969, but in the cross-examination, they have stated that they cannot say that the agreement might have been cancelled two or 2 1/2 months after the attachment of the bus. PW 1 Banwari Lal has specifically stated that the agreement was cancelled in the end of March, 1970. If the agreement would have been cancelled in the month of August, 1969, itself, then Hazoor Singh could not have made payment of Rs. 500/- against the instalments in the month of December, 1969, and would not have remained in possession of the bus. A close reading of the statement of these three witnesses, thus, clearly show that the agreement was cancelled by the plaintiff in . the last week of March, 1970, and not earlier, to that. According to Condition No. 5, the plaintiff had. the option to cancel the contract for the non-payment of the amount of the instalment and the cancellation was not automatic, for the non-payment of the instalment. If the plaintiff did not choose to cancel the agreement prior to March, 1970, the defendant cannot take the advantage of the non-cancellation of the contract. The plaintiff is, therefore, entitled for the amount of the bus, which was taken by the defendant No. 2 Hazoor Singh under the hire-purchase agreement and the learned lower Court was justified in passing the decree against the defendant No. 2 Hazoor Singh for an amount of Rs. 16,800/- along with interest. The defendant No. 2 Hazoor Singh, in his statement before the Court, has stated that it was agreed that the non-payment of the instalment will fetch interest @ 12% per annum and, therefore, the learned lower Court was right in granting interest, also.
8. The next question, which requires consideration, is :
Whether the State is immune from payment of damages because of the principle of sovereign immunity. The trial Court, though came to the conclusion that the plaintiff suffered the damages of Rs. 10,000/- but refused to grant this amount to him on the ground of the principle of sovereign immunity. The acts of the State, of which the Courts are debarred from taking action, are the acts done in the exercise of the sovereign powers. In order to claim immunity from the tortious acts of the servants, the State has to show that the act, which caused the injury, was done by its officer during his employment and in the course of the exercise of the sovereign function. In'England, the doctrine of immunity is based on the feudalistic concept that the King can do wrong and that it was an attribute of the sovereignly that the State cannot be sued in its own Court without its consent. In India, the doctrine of immunity was based on this Common Law principle which prevailed in England. In England, this principle of immunity has been abolished by the Crown Proceedings Act of 1947. Learned counsel for the parties, during the course of arguments, have referred before me certain decisions in which the sphere of law of Civil Wrong and thorny fields of sovereign immunity and the liability of the Government for the tortious act of its servant has been considered.
9. In State of Rajasthan v. Mst. Vidya-wati, AIR 1962 SC 933, the pedestrian was knocked-down by a Jeep owned and maintained by the State of Rajasthan for the official use of the Collector of the District. The Apex Court, after considering the law on the point, held that the State can be made vicariously liable for the tortious act like any other, employer and observed as under (at page 940):--
'The immunity of the Crown in United Kingdom was based on the old feudalistic notions of justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he cannot be sued in his own Courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract and the common law immunity never operated in India.'
The Court further observed :
'When the rule of immunity in favour of the Crown, based on common law in United Kingdom, has disappeared from the land of its birth, there is no legal warrant for holding that it has any validity in this Country, particularly after the Constitution and, therefore, it would be only recognizing the old established rule, going back to more than 100 years at least if the vicarious liability of the State is upheld by the Court.'
10. In M/s. Kasturi Lat Ralia Ram Jain v. The State of Uttar Pradesh, AIR 1965 SC 1039: (1965 (2) Cri LJ 144), the matter before the Supreme Court was that Ralia Ram Jain was arrested by the police and on search, some gold and silver was seized from him. The accused was acquitted and after the acquittal, the accused claimed the gold and silver recovered from him. At that time, it was revealed that those gold and silver were misappropriated by a 'Head Constable. The accused, therefore, claimed damages from the State. The Court opined that as the tortious act was committed by the public servant in the course of his employment and in the exercise of the statutory functions delegated to him by the Government and, therefore, the State is imniuned from the liability and the claim of damages is not sustainable. The Apex Court, in coming to this conclusion, observed that so far as the seizure of the articles was concerned, that was made by the Officers of the State in the discharge of their official duties and, therefore, for the act of negligence, which was committed by the police while dealing with the property of Ralia Ram, which they seized in the exercise of statutory power, no damages can be awarded. However, it was observed by the Apex Court as under:--
'Our only point in mentioning this act is to indicate that the doctrine of immunity, which has been borrowed in India in dealing the question of immunity of the State in regard to the claims made against it for tortious act committed by its servant, was really based on the Common Law principle which prevailed in England : and that principle has, now, been substantially modified by the Crown Proceedings Act. In dealing with the present appeal, we have ourselves been disturbed by the thought that a citizen whose property was seized by process of law, has to be told when he seeks a remedy in a Court of law on the ground that his property has not been returned to him, that he can make no claim against the State. That, we think, is not a very satisfactory position of law. The remedy to cure this position, however, lies in the hands of the Legislature.'
11. In Kasturi Lal's case, so far as the arrest and seizure is concerned, that was in accordance with law and was in discharge of the statutory function while in the present case, the seizure of the plaintiff's bus was wholly illegal as neither any tax amount was due against the plaintiff nor against the bus in question. The bus in question was attached by the A.C.T.O. (R.P.G.T.) Sri Ganganagar, for the recovery of the outstanding dues of the R.P.G.T. tax against the buses Nos. RJK 3107 and RJK 5202 belonging to New India Transport Cooperative Society Limited and the plaintiff has no connection. whatsoever with it and, therefore, the ratio of Kasturi Lal's case is not applicable in the present case. Even otherwise, in the latter decisions of the Supreme Court, the case of Kasturi Lal has not been followed, but the Supreme Court, in the latter decisions adoptee and followed the view taken in Vidhyawati's case. In the case of Rudal Shah v. The State of Bihar, AIR 1983 SC 1086 : (1983 Cri LJ 1644). The Petitioner was kept in jail for a period of 14 years after which he was acquitted and in addition to his release, the Supreme Court awarded compensation to the detenu. The Supreme Court, also, awarded compensation in the case of Bhim Singh v. The State of Jammu and Kashmir, AIR 1986 SC 494 : (1986 Cri LJ 192). In that case, the petitioner Bhim Singh, who was a Member of Legislative Assembly, was arrested by the police officer while he was in Srinagar and was going to attend a meeting of the Legislative Assembly. After arrest, he moved a Habeas Corpus petition but before it could be heard, he was released and, therefore, while deciding the Habeas Corpus Petition, the Supreme Court allowed compensation of Rs. 50,000/- for his wrong detention. In Saheli -- a Women Resources Centre through Ms. Nalini Bhanot and Ors. v. The Commissioner of Police, Delhi, AIR 1990 SC 513, the death of a nine years' old child took place in the police custody because of the beatings and assault by a police officer. The Supreme Court, placing reliance over Vidhyawati's case, held that as the' death , occurred due to police atrocities and therefore, the State is liable for the tortious act of its officers. The Apex Court, therefore, awarded compensation of Rs. 75,000/-.
12. In J. Kuppanna Chetty Ambuti Ramayya Chetty and Co. v. Collector of Anantapur, AIR 1965 AP 457, the factory of the petitioner was in arrears of Income-tax. The Income-tax Officer issued a certificate to the Collector for the realization of certain arrears. In pursuance to this, the Tehsildar attached the factory building, machinery, boiler-engine and decorative theatre. The Andhra Pradesh High Court came to the conclusion that though attachment of the boiler made by the Tehsildar was illegal, but as it was done by him in discharging the sovereign function and, therefore, neither the Central nor the State Governments can be made liable for the tort committed by the Tehsildar. The view taken by the Andhra Pradesh High Court is not in consonance with the view taken by the Supreme Court in its later 'decisions. Exempting the State from being sued for the injury to its . citizen; committed in the illegal and arbitrary exercise of its sovereign functions, has no moral justification, and it is neither logical nor practical.
13. In the State of Gujarat v. Memon Mohammed Haji Hasan, AIR 1967 SC 1885, the Custom Authorities seized two motortrucks, station wagon and other goods belonging to the respondent Memon Mohamed on the grounds (a) that the respondent had not paid import duty on the said trucks; (b) that they were used for smuggling goods in the State, and (c) that some of the goods were smuggled goods. The respondent preferred an appeal against this order. This appeal, filed by the respondent, was allowed by the Tribunal and the Custom Authorities were directed to return the said vehicles to the respondent. When the respondent applied for the return of the vehicles, it was found that those vehicles were disposed of. He, therefore, filed a suit for the return of the said vehicles or in the alternative, for the recovery of val.ue of goods and vehicles. The trial Court decreed the suit of the plaintiff. The State Government preferred an appeal before the High Court of Bombay: The High Court dismissed the appeal filed by the State. The State, thereafter preferred an appeal, before the Supreme Court. The Supreme Court, while dismissing the appeal, filed by the State, held that the government is bound to return the said property by reason of its statutory . obligations or to pay its value if it had disabled itself from returning it either by its own act or the act of its agent or servant. The Supreme Court, however, made reference to the judgment in the case of Kasturi Lal (supra) and held that it has no relevance in view of the pleadings of the parties. The same view was again reiterated by the' Supreme Court in a later decision in the case of M/s. Oswal Spinning and Weaving Mills Limited v. The Collector of Customs, (1988) 3 SCC 310, wherein it was held that the customs; authorities are liable to compensate the owner for a loss or damage of the goods seized by the. authorities.
14. In the light of the decisions referred above, now it has to be seen whether the State can claim immunity in the present case and whether the A.C.T.O. (R.P.G.T.), Sri Ganganagar was acting under any statutory authority in seizing the bus No. RJK 6794 belonging to the plaintiff for the recovery of. the arrears of R.P.G.T. tax outstanding against two buses Nos, RJK 3l07 and RJK 5202 of New India Transport Cooperative Society, of which Hazoor Singh was the Chairman; and whether the exercise of that authority can be treated to be an exercise of some sovereign power? We are living under the .Rule of Law. Article 300A of the Constitution of India prohibits depriving any person of his property without authority of law. The scheme of the Rajasthan Passengers and Goods Tax Act, provides that the recovery of the arrears of tax can be made by the seizure of the bus regarding which the tax is due or from the property of its owner and not from the property of any third person, who had no connection whatsoever with the arrears of tax. A mode has been given in the Act and the. Rules for the recovery of the arrears of tax, which have not been followed in the present case and the bus of the plaintiff, who has no connection whatsoever, has been attached and put to auction. The non-compliance of these statutory obligation's by the instrumentalities of the State should be treated not merely a technical error but as a non-compliance of the Rules of Law causing substantial injustice to a person who has nothing to pay as the tax, but whose bus has been attached and later on auctioned. Where a citizen has been deprived of his belongings otherwise than in accordance with the procedure prescribed under law, it is no answer to say that the said deprivation was brought about by the officers of the State while acting and discharging the sovereign functions of the State. The action of the A.C.T.O. (R.P.G.T.), Sri Ganganagar, in attaching the bus of the plaintiff, was an illegal action without any legal sanction behind it and was taken neither under any statutory authority nor in exercise of any sovereign function and, therefore, the State cannot claim immunity on the ground of its sovereign function.
15. D.W. 1/D.1, Suresh Chandra Sharma, in his statement, has admitted that there was outstanding of R.P.G.T. tax against the New India Transport Cooperative Limited and a Warrant for recovery of the amount was issued. This warrant was issued against the New India Transport Co-operative Limited and not against Hazoor Singh, but because Hazoor Singh was the owner of the vehicles of the New India Transport Cooperative Company and, therefore, his bus No. RJK 6794 was attached. In the cross-examination, he has specifically stated that inthe warrant of recovery, the name of HazoorSingh was not mentioned. Similar is thestatement of Om Prakash -- the clerk in theRegional Transport Office, who has statedthat R.P.G.T tax was outstanding against thebuses Nos. RJK 3107 and RJK 5202 and fortrie recovery^ of that amount, warrant ofattachment was issued, but he cannot say thatin whose name this warrant was issued. Fromthe reading of the statements of these, twowitnesses, it is clear that the tax was outstanding against buses Nos. RJK 3107 andRJK 5202, which belonged to the New IndiaTransport Cooperative Society and nothingwas outstanding against the plaintiff or busNo. RJK 6794 and when nothing was dueagainst the plaintiff or bus No. RJK 6794,then that bus could not have been attached bythe respondent. The action of the respondentin attaching the bus of the plaintiff andputting it to auction for the recovery of thetax-amount outstanding against the busesNos. RJK 3107 and RJK 5202 is wholly illegaland is an act of exercise of arbitrary powers bythe instrumentalities of the State and, therefore, cannot be said to be the sovereign act ofthe State. It is a case of wrongful interferenceby the officers of the respondent No, 1 withthe property of the plaintiff. The PublicAuthorities are expected to act within theframe-work of their powers delegated to themunder the law and the State cannot take theplea of immunity to. justify the wrongfulaction taken by the officers. The exercise ofthe government powers must be done inconformity with the law and subject to all theconditions and limitations which may havebeen imposed by the law and if these conditions are not fulfilled and if these limitationsare exceeded, the jurisdiction of the. Courtcannot be ousted on the pretext of thesovereign immunity, The powers do notconfer a licence upon its officers to actcontrary to law in discharge of their duties. Itis only the sovereign function performed inaccordance with law that are immuned andnot any arbitrary, illegal or unlawful actionsof the authorities.
16. Ours is a constitutional democratic country ruled by Rules of Law and the State cannot claim any immunity from payment of damages for the illegal and wrongful action of its officers on the so-called doctrine of sovereign immunity. Time has come to give a good-bye to the doctrine of sovereign Immunity and to sweep-off this archaic rule, which has become out-moded in the concept of modern development. In our democratic republic, the sovereignty rests with the people and the government, which is run by the people, elected by the people, cannot seek immunity against themselves. In this view of the matter, I am of the opinion that the injury to the plaintiff was not caused in connection with the exercise of the sovereign power or functions of the State, but on the contrary, the A.C.T.O. (R.P.G.T.) Sri Ganganagar, who was vested with powers of recovering the arrears of tax, attempted to exercise the powers beyond the powers given to him by the Act by attaching the bus of the plaintiff, which has no connection whatsoever with the arrears of tax, and in such circumstances, no immunity can be claimed by the State and the plaintiff is, therefore, entitled to get the decree for damages passed in his favour and against the State of Rajasthan. The learned trial Court has assessed the damages to the tune of Rs. 10,000/- and no challenge has been made by the State to that verdict.
17. In this view of the matter, the plaintiff is entitled to get this amount of Rs. 10,000/-along with interest @ 12% per annum from the date of seizure from the State of Rajasthan for the damages caused to the bus in the custody of the officers of the respondent No. 1 after the attachment. During the pendency of the suit, the bus was auctioned and the auction money of Rs. 4025/- was deposited in the Court. The learned trial Court, while deciding the suit, did not pass any order regarding this amount of Rupees 4,025/-, As the attachment of the bus is wholly illegaliand, therefore, the plaintiff was entitled for this amount of Rs. 4,025/- of the sale-proceeds of the bus, also.
18. In the result, the appeal, filed by the defendant-appellant, is partly allowed. The decree passed by the trial Court in favour of the plaintiff for an amount of Rs. 20,000/- (i.e. Rs. 16,300/- as principal and Rs.3,700/-as interest till the date of the suit) along with pendente the and future interest @ 12% per annum, is maintained, but, however, the decree is modified in the following terms:--
(i) the plaintiff will be entitled to realize a sum of Rs. 10,000/- along with interest @ 12% per annum from the date of the seizure of the bus, i.e., from Jan. 2, 1970, till realization of the amount from the State; (ii) the plaintiff will be entitled to interest @ 12% per annum since July 2, 1969, up to the date of the seizure, on Rs. 16,300/- from Hazoor Singh; (iii) the plaintiff will be entitled to realize Rs. 6,300/- from Hazoor Singh along with interest @ 12% p.a. since January 2, 1970, till the date of realization; and (iv) the plaintiff will be entitled to withdraw Rs. 4,025/- being the sale-proceeds of the bus deposited in the Court during the pendency of the suit and lying deposited in the Court, along with interest, if any, earned on the deposit. This amount will be adjusted towards the decretal amount against Hazoor Singh.
19. If the decree, passed by the Court below has already been satisfied by the defendant-appellant, Hazoor Singh, then the defendant-appellant Hazoor Singh will be entitled to get the amount of Rs. 4,025/- lying in the Court along with interest, if any earned, and he will, also, be entitled to recover the amount of Rs. 10,000/- along with interest @ 12% per annum from the State of Rajasthan since the date of the seizure of the bus. The defendant-appellant Hazoor Singh will, also, be entitled to the cost of this appeal from the respondent No. 2, i.e. the State of Rajasthan.