TMI Blog2011 (5) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate, assisted by Piyush Agrawal For the Respondents : S.P. Kesarwani, Standing Counsel, The judgment of the court was delivered by FERDINO INACIO REBELLO C.J. The reliefs sought in this petition are as under: (i) that a suitable writ, order or direction in the nature of mandamus be issued directing the respondents to pay the amount of the value of the goods seized by respondent No. 3, since the valuation of the goods has been determined by the Trade Tax Department itself. (ii) that a suitable writ, order or direction in the nature of mandamus be issued directing the respondents to refund the amount of security as well as the value of the goods which has been determined and which has become waste and non-edible and unfit for human consumption on account of the lapses, fault and negligence of the respondents. The State Government, with a view to implement the Prime Minister Gramodaya Yojana, decided to import weaning food for its free distribution to the children in the State of Uttar Pradesh. In furtherance of that decision, the State Government placed orders with the petitioner for supply of the weaning food. The petitioner accordingly dispatched a cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts through different challans and bilti through five different trucks. The goods of all the five trucks were detained on April 1, 2004 and a show-cause notice was issued to the petitioner, which was replied to. Thereafter, the Assistant Commissioner, Trade Tax, Mohan Nagar Check-post, Ghaziabad seized the goods in Truck No. HR38F/5797, whereupon the petitioner filed an application under section 13A(6) of the Uttar Pradesh Trade Tax Act, 1948 (hereinafter referred to as the Act ) before the Deputy Commissioner (Help Centre), Trade Tax, Mohan Nagar, Ghaziabad, which was rejected by order dated March 20, 2004. Against that, the petitioner preferred a writ petition, being Writ Petition No. 524 of 2004. The said writ petition was disposed of by order dated May 6, 2004 declining to interfere with the show-cause notice in exercise of its extraordinary jurisdiction. However, the court permitted the petitioner to file a reply to the show-cause notice. It is pointed out that the seizure orders were passed on April 12, 2004, i.e., before the decision in Writ Petition No. 524 of 2004. According to petitioner, he filed applications under section 13A(6) of the Act, before the Deputy Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which five per cent security was directed to be deposited by the Trade Tax Department and, hence, the petitioner is entitled for the amount of the said goods, which had already become waste and useless, and unfit for human consumption. Further, considering section 13A(8) of the Act, the officer ought to have taken action to dispose of the goods, and after adjusting the expenses of trade tax and penalty imposed, balance amount ought to have been returned to the dealer. That was not done. The petitioner received a reply dated January 28, 2005, from the Assistant Commissioner, Trade Tax, Help Centre, Kotban, Mathura, that the petitioner had not given any application earlier for giving the goods in his possession (supurdgi) nor any sample was taken at the time of seizure and, hence, on the dispute being raised about the goods having become waste, the claim of the petitioner could not be accepted and the petitioner should get the goods released in its favour. There were further correspondences exchanged between the parties. It is the case of the petitioner that it was the duty of the Department to have given the samples for testing at the time of seizure and since the goods ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied on the judgment of the Supreme Court in the case of Lucknow Development Authority v. M.K. Gupta [1994] 1 SCC 243. We may reproduce paragraph 8 of the said judgment, as it is the ratio of this judgment based upon which the arguments have been advanced: 8. Having examined the wide reach of the Act and jurisdiction of the Commission to entertain a complaint not only against business or trading activity but even against service rendered by statutory and public authorities the stage is now set for determining if the Commission in exercise of its jurisdiction under the Act could award compensation and if such compensation could be for harassment and agony to a consumer. Both these aspects specially the latter are of vital significance in the present day context. Still more important issue is the liability of payment. That is, should the society or the tax -payer be burdened for oppressive and capricious act of the public officers or it be paid by those responsible for it. The administrative law of accountability of public authorities for their arbitrary and even ultra vires actions has taken many strides. It is now accepted both by this court and English courts that the State i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortuous acts of public servants committed 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 of by him is not a sovereign function of the State the ratio of Kasturi Lal AIR 1965 SC 1039 could not stand in way of the Commission awarding compensation. We respectfully agree with Mathew, J., in Shyam Sunder v. State of Rajasthan AIR 1974 SC 890, that it is not necessary, 'to consider whether there is any rational dividing line between the socalled sovereign and proprietary or commercial functions for determining the liability of the State' (SCC p. 695, para 20). 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 AC 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the law has always maintained that the public authorities who are entrusted with statutory function cannot act negligently. As noted earlier, the court clearly recorded a finding that the action of the respondents was mala fide in law as set out in paragraph 9 of the judgment. After having considered the various aspects, the learned Division Bench observed that, instead of relegating the petitioner to suit, it would be a fit case where compensation should be awarded. After having so said, the court did not quantify the amount of compensation but directed the Commissioner of Trade Tax to grant proper compensation to the petitioner commensurate with the loss they have suffered. On the other hand, it is the contention of the respondents, that the petition raises several disputed questions of fact and considering the settled proposition of law that, where a disputed question of fact is involved, jurisdiction of this court under article 226 of the Constitution of India is not a proper remedy, the petition should be dismissed. In the case of Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) v. Smt. Sukamani Das AIR 1999 SC 3412, as also in the case of Orissa Agro Industries Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is on record, to award damages for the purported loss occasioned to the petitioner by the detention of the goods. We may note the following aspects: 1. There is no material before this Court to set out as what was the state of the goods when they were detained. 2. Admittedly, an order was passed to release the goods on furnishing the security. The goods, therefore, continued to be detained pursuant to an exercise of quasi-judicial power under the Act. It is, therefore, not merely an administrative action, but a decision of a quasi-judicial authority. The petitioner has not been able to place any material on record to show as to it what disabled, to get the goods released, considering the various orders of the judicial and/or quasi-judicial forums. 3. The issue involved in this case pertains to the quantum of compensation if and at all that has to be awarded. A finding will have to be recorded that the action of the respondents was mala fide, if such plea is available as the goods were detained pursuant to order of a statutory authority and confirmed by other quasi-judicial and judicial authorities. There is no such material. Act done in the course of official duties by i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
