Delhi District Court
Sh. Jai Bhagwan Sharma vs The Union Of India on 9 April, 2007
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IN THE COURT OF SH. GIRISH KATHPALIA,
ADDITIONAL DISTRICT JUDGE, DELHI
SUIT NO.138/05
SH. JAI BHAGWAN SHARMA
S/O SH. NAND RAM
R/O VILLAGE & POST - SANOTH,
NARELA,
DELHI-110040. ....PLAINTIFF
versus
1. THE UNION OF INDIA
(MINISTRY OF HOME AFFAIRS)
THROUGH ITS SECRETARY
NORTH BLOCK, CENTRAL SECRETARIAT,
NEW DELHI.
2. SALMA KHAN
INSPECTOR - ANTI-HOARDING CELL,
(DELHI POLICE)
THROUGH:-
THE COMMISSIONER OF POLICE
POLICE HEADQUARTERS,
ITO, NEW DELHI.
3. THE COMMISSIONER
FOOD & SUPPLIES & CONSUMER AFFAIRS
K-BLOCK, VIKAS BHAWAN,
NEW DELHI-110001.
4. SH. KALU KHAN,
S/O SH. RAFFIK MOHAMMED
R/O GALI NO.7, PREM COLONY,
BAWANA ROAD, NARELA,
DELHI-110040. ....DEFENDANTS
DATE OF INSTITUTION: 18/07/2005
ARGUMENTS CONCLUDED ON: 16/03/2007
DATE OF DECISION: 09/04/2007
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Counsel for Plaintiff: Sh. Ajay Gupta, Advocate
Counsel for Defendants no.1-3: Sh. S. Shah, Advocate
JUDGMENT
1. By way of this suit, plaintiff has sought recovery of Rs.3,91,500/- towards occupation charges of his premises bearing no. 426, khasra no. 91, village Sanoth, Narela, Delhi (herein after referred to as "the suit property") and towards services rendered by him to the defendants.
2. Factual matrix as set up by plaintiff is that he inducted the defendant no. 4 as his tenant in the suit property by way of rent agreement which was to be operative from 18/07/01 at a monthly rent of Rs.8,500/-. On 18/07/01 defendant no. 4 took possession of the suit property and started using the same as a cement store in terms with the rent agreement.
3. On 27/07/01, defendant no. 2 conducted a raid on behalf of defendants no. 1&3 at the suit property and a case FIR no. 269/01 was registered against defendant no. 4 for offence under section 7/10/55, Essential Commodities Act. During the said raid, defendant no. 2 along with other members of the raiding party not only seized the offending CS/138/05 Page of 2 of 29 pages 3 goods/cement, they also sealed the entire suit property and directed the plaintiff to safe guard and protect the said seal. As per plaintiff, the sealing of the suit property was an illegal exercise by the defendants no. 1-3.
4. As per plaintiff, he repeatedly contacted the defendant no. 2 and other officials of defendant no. 3 with the request to deseal the suit property and shift the seized cement elsewhere but plaintiff was threatened that he would be implicated in the above said criminal case if he insisted for vacation of the suit property. Plaintiff also issued a legal notice dated 21/10/03 to the defendants no. 1-3 calling upon them to pay him occupation charges of the suit property at a rate of Rs.8,500/- per month and service charges at a rate of Rs.5,000/- per month for safe guarding seals on the suit property. In response, some officers of defendants no. 2&3 visited the plaintiff with assurance that the suit property would be desealed upon an order from magisterial court.
5. Accordingly plaintiff moved an application before the concerned magistrate with the prayer to direct desealing of the suit property. By order dated 18/05/04 the ld magistrate CS/138/05 Page of 3 of 29 pages 4 observed that the investigating officer of the police had erroneously sealed the suit property, so the desealing be done and the seized cement be removed from the suit property. Despite that order of the magisterial court, defendants took no steps, which compelled the plaintiff to move a contempt application before the ld magistrate. Defendants no. 2&3 appeared before the magisterial court and tendered apology as well as again assured to deseal the suit property but refused to pay any occupation charges. In the month of September 2004, the suit property was desealed.
6. Plaintiff issued a legal notice dated 12/01/05 under section 80 CPC read with section 140, Delhi Police Act to defendants no. 1-3 and claimed Rs.5,53,500/- towards occupation charges for the period from July 2001 to September 2004 at a rate of Rs.8,500/- per month with interest at a rate of 24 per cent per annum and also claimed a sum of Rs.2,05,000/- towards service charges at a rate of Rs.5,000/- per month for protecting seal of the suit property till September 2004. Despite service of notice, defendants failed to pay, hence this suit restricting the recovery to the CS/138/05 Page of 4 of 29 pages 5 period of three years from May 2002 to September 2004 in view of law of limitation, as per plaintiff.
7. In their joint written statement defendants no. 1-3 admitted that on 27/07/01 a raid had been conducted by Sh. A.K. Rathee, an FSO of defendant no. 3 on the suit property and an FIR was registered against defendant no. 4. Defendants pleaded that a huge amount of suspected adulterated cement was recovered from the suit property and after taking samples of the same, the FSO of defendant no. 3 sealed the suit property and gave complaint to defendant no. 2 on whose endorsement the FIR was registered and the investigation was assigned to SI Satish Kumar, Anti Hoarding Cell.
8. Defendants no. 1-3 pleaded that since tenant of the plaintiff was defendant no. 4, the occupation charges are payable by defendant no. 4 only. They also pleaded that it is not the entire suit property but only three rooms therein which were sealed. They denied having threatened the plaintiff with any false implication.
9. Defendants no. 1-3 pleaded that the suit property was sealed in accordance with rules and regulations, as such CS/138/05 Page of 5 of 29 pages 6 the suit deserves to be dismissed.
10. Defendant no. 4 in his written statement pleaded that he used the suit property till 27/07/01 only and since thereafter it was illegally sealed by defendants no. 1-3, he is not liable to pay any money to the plaintiff. Defendant no. 4 pleaded that he has been wrongly implicated in the above said criminal case by defendants no. 1-3.
11. Plaintiff filed detailed replications to the written statements, denying pleadings of the defendants and reaffirmed the plaint contents.
12. On the basis of pleadings following issues were framed:
1. Whether the suit is bad for misjoinder of defendants no.1 to 3?
2. Whether the tenanted premises were illegally sealed by defendant no.2, if so its effect?
3. Whether plaintiff is entitled to the suit amount?
4. If so, whether plaintiff is entitled to the suit amount from all the defendants jointly and severally?
CS/138/05 Page of 6 of 29 pages
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5. Relief.
13. In support of his case, plaintiff examined three witnesses while no evidence was adduced on behalf of any of the defendants despite repeated opportunities and final opportunities. Rather, defendant no. 4 stopped appearing after filing written statement and was proceeded exparte.
14. In his chief examination affidavit, the plaintiff as PW1 deposed that vide title deeds Ex.PW1/1 he is owner of the suit property, which was let out to the defendant no.4 for running a cement store by way of rent agreement Ex.PW1/2 for the period with effect from 18/7/01 to 17/6/02 at a monthly rent of Rs.8,500/-. Possession of the suit property was taken over by the defendant no.4 on 18/7/01. As per PW1, on 27/7/01 defendant no.2 raided the suit property along with officials of the defendants no.1&3, seized the goods lying in the suit property and registered a case FIR Mark A against the defendant no.4 for offence under sec.7/10/55, Essential Commodities Act. Instead of taking away the seized goods, the raiding team of the defendants no.1-3 illegally sealed the entire suit property itself and also directed the CS/138/05 Page of 7 of 29 pages 8 plaintiff to safeguard and protect the seal. As per PW1, he repeatedly contacted the defendants no.2&3 and their officials with the request to vacate the suit property but they threatened to implicate him in the abovesaid criminal case if he insisted for vacation of the suit property. Ultimately, as per PW1, he issued legal notice dated 21/10/03 Ex.PW1/3 to the defendants, calling upon them to pay the suit property occupation charges and also the service charges for protecting the seal. Upon service of notice, some officials of defendants no.2&3 visited the plaintiff and told him that the suit property could be desealed only under orders of the concerned magistrate. As such, PW1 moved an application dated 20/1/04 Ex.PW1/5 before the concerned magistrate who passed order dated 18/5/04 Ex.PW1/6, holding that the suit property had been sealed erroneously and directed removal of the seized goods therefrom. When despite magisterial order the defendants kept refusing to deseal the suit property, plaintiff moved contempt application Mark B, defendants appeared before the learned magistrate and tendered apology.
Thereafter, as per PW1 vide postal record Ex.PW1/8-12 he CS/138/05 Page of 8 of 29 pages 9 issued legal notice Ex.PW1/7 under sec.80 CPC read with sec.140 Delhi Police Act, calling upon the defendants no.1-3 to pay occupation charges and service charges. But to no avail. In his cross examination PW1 stated that since the raid took place within first seven days of tenancy there was never any occasion for him to issue rent receipt as the rent was payable by the end of the month. PW1 denied the suggestion that he was aware that the defendant no.4 had been engaged in black marketing cement and that he was a partner of the defendant no.4.
15. PW2 is the record clerk from the concerned magisterial court, who produced the judicial record of FIR no.269/01 and proved on record the order Ex.PW1/6.
16. PW3 is an inspector from post office, who proved on record the postal record Ex.PW1/8&9.
17. No other evidence was adduced from either side.
18. I have heard ld counsel for plaintiff and defendants no. 1-3 who took me through the entire record. My issue wise findings are as under.
CS/138/05 Page of 9 of 29 pages
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ISSUE NO.1:-
19. This issue was framed in view of the objection taken by defendants no. 1-3 in their written statement to the effect that since it is the defendant no. 4 who was tenant of the plaintiff, liability to pay occupation charges falls on defendant no. 4 only and as such suit is bad for misjoinder of defendants no. 1-3.
20. During final arguments, no emphasis was made on the argument of misjoinder by the ld counsel for defendants no. 1- 3 except to the extent of protection afforded to defendant no. 2 by section 140, Delhi Police Act to which I shall revert at appropriate stage. Despite repeated adjournments, ld counsel for defendants no. 1-3 could not show any legal provision which would authorize any of the defendants to seal the premises in which the offending goods are stored.
21. The act of defendants no. 1-3 sealing the entire suit property as per plaintiff, being unauthorized and not sanctified by any law, defendants no. 1-3 are necessary parties to this suit. Even otherwise, a mere misjoinder of parties is not fatal to the suit. Issue no. 1 is decided against defendants no. 1-3 CS/138/05 Page of 10 of 29 pages 11 and I hold it not proved that suit is bad of misjoinder of defendants no. 1-3.
ISSUE NO.2:-
22. Arguments on the issue under consideration were addressed by both the sides mainly on the legal aspects qua sec.140, Delhi Police Act.
23. Ld. counsel for defendants argued that since the sealing of the suit property had been done in the course of official action, defendant no.2 is entitled to protection afforded by sec.140, Delhi Police Act and the suit against her is not maintainable. Per contra ld. counsel for plaintiff argued that anti hoarding cell, of which the defendant no.2 is an inspector is not a department of the Delhi Police but of the Department of Food & Civil Supplies, as such the defendant no.2 is not entitled to protection under section 140, Delhi Police Act.
24. Since the defendants challenged the plaintiff's contention to the effect that defendant no.2 is not a police official, ld. counsel for plaintiff moved an application under the Right to Information Act. The reply came to the effect that the defendant no.2 is an inspector of the Anti Hoarding Cell, which CS/138/05 Page of 11 of 29 pages 12 is a department of the Delhi Police.
25. It was further argued on behalf of plaintiff that the act of sealing the suit property does not fall under colour of duty, as such the defendant no.2 is not entitled to protection under sec.140, Delhi Police Act.
Before proceeding further, it would be appropriate to record the said provision, which is as follows:-
Section 140. Bar to suits and prosecutions-
(1) In any case of alleged offence by a police officer or other person, or of a wrong alleged to have been done by such police officer or other person, by any act done under colour of duty or authority or in excess of any such duty or authority, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the act complained of:
Provided that any such prosecution against a police officer or other person may be entertained by the court, if instituted with the previous sanction of the Administrator, within one year from the date of the offence.
(2) In case of an intended suit on account of such a wrong as aforesaid, the person intending to sue shall give to the alleged wrongdoer not less than one month's notice of the intended suit with sufficient description of the wrong complained of, and if no such notice has been given before the institution of the CS/138/05 Page of 12 of 29 pages 13 suit, it shall be dismissed.
(3) The plaint shall set forth that a notice as aforesaid has been served on the defendant and the date of such service and shall state what tender or amends, if any, has been made by the defendant and a copy of the said notice shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time and manner of service thereof.
26. Hon'ble Delhi High Court in the case of SHIV KUMAR THAKUR vs COMMISSIONER OF POLICE, 109 (2004) DLT 437 held that the court has to walk a tightrope in balancing the competing and conflicting societal interests and the court must arrive at a conclusion, not pregnant of any doubt, that the action of a public authority is so perverse and illegal that it cannot bear any semblance to the discharge of official duty.
27. In the case of K. KALIMUTHU vs STATE BY DSP, 2005 IV AD (SC) 299 Hon'ble Supreme Court, while interpreting section 197 CrPC which grants protection to public servants against vexatious criminal prosecutions interpreted the expression "act in discharge of official duties"
and held that safe and sure test would be to consider if the omission or neglect on the part of public servant to commit the act complained of could have made him answerable for a CS/138/05 Page of 13 of 29 pages 14 charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty.
28. In the case of P.P. UNNIKRISHNAN vs PUTTIYOTTIL ALI KUTTY, 2000 VII AD (SC) 134, relied upon by the Hon'ble Delhi High Court in the case of BALBIR SINGH vs GOVERNMENT OF NCT OF DELHI, 2006 I AD (DELHI) 53 it was held that there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable but not pretended or fanciful claim that he did in the course of performance of his duty. Same was held by the Hon'ble Supreme Court in the case of MATAJOG DUBEY vs H.C. BHARI, AIR 1956 SC 44, relied upon by the Hon'ble Delhi High Court in the case of INSPECTOR BAL KISHAN vs STATE OF DELHI, 83 (2000) DLT 508.
29. In the case of PREM CHAND GOEL vs KRISHAN KUMAR, 111 (2004) DLT 477 and also in the case of CBI vs DHARAM PAL SINGH, 123 (2005) DLT 592 Hon'ble Delhi High CS/138/05 Page of 14 of 29 pages 15 Court placed reliance on the judgment of Hon'ble Supreme Court in the case of K.KALIMUTHU (supra) and held that section 140, Delhi Police Act does not protect every act of omission or commission of a police officer in service. The impugned act must justify that the colour of duty satisfies the test i.e. if the omission or neglect on the part of public servant to commit the act complained of would have made him answerable for a charge of dereliction of official duty; if the answer to this question is in the affirmative, it may be said that such act was committed under colour of duty.
30. But the issue of applicability of sec.140, Delhi Police Act would come into play only once it is factually established that the defendant no.2 had a role in sealing of the suit property, which was no doubt unauthorized. If role of the defendant no.2 in sealing is established, it would be seen as to whether her act of sealing was so perverse and illegal that it cannot bear any semblance to the discharge of official duty.
31. In his testimony as PW1 the plaintiff did not specifically name defendant no.2 as the person, who sealed the suit property. As reflected from the testimony of PW1, the CS/138/05 Page of 15 of 29 pages 16 defendant no.2 was only a member of the raiding party. In their joint written statement the defendants no.1-3 specifically pleaded that the suit property had been sealed by FSO Mr.Rathee of the defendant no.3. Role attributed to the defendant no.2 in the pleadings as well as evidence on record is only to the extent of her having got registered the FIR. Perusal of FIR which is an unchallenged document Mark A relied upon by both sides would show that the same was registered on the complaint made by Mr.Rathee and endorsed by the defendant no.2. As per FIR, the raiding team consisted of officials of the defendant no.3 only and did not include the defendant no.2. After conducting the search and seizure Mr. Rathee made a complaint to the defendant no.2, who made ruqqa endorsement thereon and sent it for FIR registration. As reflected from FIR, along with the complaint Mr.Rathee also handed over to the defendant no.2 four keys of the sealed locks of the suit property, which clearly shows that by the time the defendant no.2 entered the picture, the suit property had already been sealed. There is no shred of evidence that the defendant no.2 had any role in sealing of the suit property.
CS/138/05 Page of 16 of 29 pages 17 Role of defendant no.2 was only to the extent of making ruqqa endorsement on the complaint of Mr.Rathee and sending the same for registration of FIR, which act was certainly such, omission whereof would have made her answerable to the charge of dereliction of duty.
32. In view of the above discussion, issue no.2 is decided against the plaintiff and I accordingly hold it not proved that the defendant no.2 had any role to play in sealing of the suit property.
ISSUE NO.3:-
33. Plaintiff quantifies the suit amount as Rs.3,91,500/- consisting of Rs.2,46,500/- towards the suit property occupation charges at a rate of Rs.8,500/- per month and Rs.1,45,000/- towards service charges for protection of seal at a rate of Rs.5,000/- per month for the period from May, 2002 till September, 2004.
34. Basis of claiming Rs.8,500/- per month towards the suit property occupation charges is the rent agreement Ex.PW1/2, which the plaintiff had entered into with the defendant no.4 before the raid. Clause 1 of Ex.PW1/2 CS/138/05 Page of 17 of 29 pages 18 stipulated the tenancy of the suit property with effect from 18/7/01 to 17/6/02 and clause 2 thereof stipulated monthly rent of the premises at a rate of Rs.8,500/-. Reverse side of the stamp paper on which Ex.PW1/2 was executed shows its date of purchase as 18/7/01, on which date no one could anticipate a raid by the defendants no.1-3. Even the defendant no.4 in his written statement did not dispute the rate of agreed rent as Rs.8,500/- per month; his only plea is that the same should be recovered from the remaining defendants. Plaintiff has claimed occupation charges for 29 months till September, 2004 when the suit property appears to have been finally vacated by the defendants. Suit was filed on 18/7/05 and plaintiff can claim occupation charges only with effect from August 2002 onwards till vacation of the suit property, i.e for a period of 26 months. To that extent of Rs.2,21,000/-, the suit property occupation charges claim of plaintiff deserves to be allowed.
35. But on service charges, claim of plaintiff fails to stand the test of scrutiny. Plaintiff claims that he had been directed by the officials of the raiding party to maintain and protect the CS/138/05 Page of 18 of 29 pages 19 seal on the doors of the suit property, which he did and for the same he is entitled to be paid Rs.5,000/- per month. Admittedly, there was no specific written or even oral agreement between the parties for any such maintenance or protection of the seal and at any particular rate of charges. It is quite possible that officials of the raiding team would have instructed the plaintiff not to temper with the seal, but it is absolutely unbelievable that they would have directed the plaintiff to "protect" or "maintain" the seal. Plaintiff's act of not breaking or tempering with the seal was only an act of not taking law in his hand, which is a duty of every law abiding citizen and plaintiff cannot claim premium for observing the same. As such, claim of plaintiff as regards the alleged service charges should fail.
36. In view of above discussion, Issue no.3 is decided in favour of plaintiff only to the extent that plaintiff is held entitled to Rs.2,21,000/- towards the suit property occupation charges at a rate of Rs.8,500/- per month for the period from August, 2002 till September, 2004.
37. Plaintiff also claims presuit, pendente lite and future CS/138/05 Page of 19 of 29 pages 20 interest at a rate of 24% per annum. But no evidence was led by the plaintiff in that regard. Under similar circumstances in the case of UNICORN INTERNATIONAL vs DESERT TRADERS CANADA INC., 2006 VII AD(DELHI) 791, Hon'ble Delhi High Court held the plaintiff entitled to interest as per the Interest Act, 1978 from the date when interest was claimed and at the rate offered by the scheduled banks on fixed deposits and in the absence of evidence as regards interest rate offered by the banks, Hon'ble Court took the rate of interest to be 8% per annum. Considering the overall circumstances of this case, in my opinion plaintiff of this case also is entitled to a simple presuit interest at a rate of 8% per annum on the abovesaid occupation charges. Since plaintiff never issued any demand notice claiming interest against the defendant no.4, presuit interest cannot be granted; plaintiff is entitled to pendente lite and future interest at a rate of 8% per annum on the occupation charges quantified above.
ISSUE No.4:-
38. Plaintiff has raised his claim against all the defendants jointly and severally. Contention of the defendant no.4 is that CS/138/05 Page of 20 of 29 pages 21 since he did not use the suit property during the period from May, 2002 to September, 2004, he is not liable to pay any occupation charges. Contention of the remaining defendants is that they acted in discharge of their official duty, as such they are not liable to pay.
39. Defendant no.4 did not contest the suit after filing his written statement. Admittedly, the suit property had been sealed when the same was in possession of the defendant no.4 and not plaintiff. Strictly speaking, status of the defendant no.4 continues to be as a tenant of the plaintiff, though the contractual tenancy under the rent agreement Ex.PW1/2 has expired with efflux of time. Since till date, defendant no.4 has not returned possession of the suit property to the plaintiff, liability of defendant no.4 to pay occupation charges is beyond challenge.
40. Then comes the issue of liability of the defendants no.1&3, as in view of findings on issue no.2 no liability can be fastened on the defendant no.2. The only argument raised by ld.counsel for the defendants was that the act of defendants no.1&3 in sealing the suit property was in bona fide discharge CS/138/05 Page of 21 of 29 pages 22 of their official duties, as such they cannot be held liable to pay any damages. It was argued that quantity of the seized cement was so huge that it was practically not feasible to shift the same, so the raiding team had no option but to seal the suit property. Sealing having been done in the overall national interest cannot be held to be illegal. Per contra, ld.counsel for plaintiff argued that despite legal notice and even order of the ld.magistrate the defendants did not vacate the suit property till they were summoned for contempt. Since sec.3 of the Essential Commodities Act does not empower sealing of the premises raided, the raiding team of defendants acted negligently and their action lacks good faith, as such the defendants no.1-3 cannot be allowed protection of sec.15, Essential Commodities Act.
41. It would be apposite to look into the nature and scope of the Essential Commodities Act, 1955 (hereinafter referred to as "the EC Act" for brevity) in order to clearly appreciate the rival contentions.
42. Preamble of every statute holds vital key to understanding and interpreting its provisions. Every provision CS/138/05 Page of 22 of 29 pages 23 of the enactment must be construed in a manner consonant with the preamble. Preamble of the EC Act reads:
"An Act to provide, in the interest of the general public, for the control of the production, supply and distribution of, and trade and commerce in certain commodities."
43. The EC Act intends to provide for the control of the production, supply and distribution of, and trade and commerce in, certain commodities essential for human being in the interest of the general public. Section 3 of the Act deals with powers to control production, supply and distribution of essential commodities. Sub Section(2)(j) thereof provides that without prejudice to the generality of powers conferred by sub section(1), an order made thereunder may provide "for any incidental and supplementary matters, including, in particular", the entry, search or examination of premises, aircraft, vessels, vehicles or other conveyances and animals and seizure of the offending articles, packages, aircraft, vessel or vehicle etc. and accounts. Sec.6A of the Act authorizes confiscation of the seized offending commodity. Sec.15 of the Act affords protection of the action taken under the Act.
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44. Ld. Counsel for defendants, in all fairness conceded that there is no explicit provision in the Act, empowering sealing of the premises wherein the offending commodity was stored, but argued that the same had been done by the officials on account of practical difficulty to transport such a huge stock. That, as per ld. counsel for plaintiff is nothing but lack of good faith on the part of the officials of the defendants.
Section 15 of the EC Act reads as under:
"15. Protection of action taken under the Act:-
(1) No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done in pursuance of any order made under section 3.
(2) No suit or other legal proceeding shall lie against the government for any damage caused or likely to be caused by anything which is in good faith done or intended to be done in pursuance of any order made under section 3."
45. What sec.15 of the EC Act protects is an act done in good faith and in pursuance of any order made under sec.3 of the Act. It is not just the act done under sec.3, which is protected. It is also the act done in pursuance of order made CS/138/05 Page of 24 of 29 pages 25 under sec.3 that is protected. An act to pursue the control of production, supply, distribution etc.of essential commodities is entitled to protection under sec.15, if the said act is done in good faith.
46. It is important to note that section 3(2) (j) of the EC Act is not exhaustive but inclusive in nature as regards what an order under section 3(1) may provide. So far as the present case is concerned, sealing of the suit property was undeniably in pursuance of the objects mentioned in sec.3 of the EC Act, namely control of production, supply and distribution of the adulterated cement. As such, if the sealing was in good faith, defendants no.1&3 would be entitled to protection under sec.15(2) of the EC Act.
47. The term "good faith" has not been defined under the EC Act. Section 52 of the Indian Penal Code defines good faith as follows:
"Nothing is said to be done or believed in good faith which is done or believed without due care and attention."
But this is a stricter definition of good faith, as compared to the definition under sec.3(22) of the General Clauses Act, 1897 CS/138/05 Page of 25 of 29 pages 26 which defines good faith as follows:
"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."
An act done negligently cannot be termed as an act done with due care and attention, even though it may be done honestly. Connotation of the term "good faith" in the criminal law is different from civil law. Sec.52 IPC makes no reference to the moral elements of honesty while the General Clauses Act protects the honest blunderer.
48. The present proceedings being civil in nature, the term "good faith" in sec.15 of the EC Act has to be read as an act done honestly, whether done negligently or not. It is nobody's case that any officer of the defendants no.1 or 3 stood personally benefited by the sealing of the suit property. Case of the plaintiff is that the raiding team of defendants sealed the suit property negligently without caring to look for legality of their action. It was at the most defendants no.1&3 exceeding their powers. Merely because the raiding team was (even if arguably) negligent, since the sealing was done honestly by them to prevent the adulterated cement from being channeled CS/138/05 Page of 26 of 29 pages 27 into the market, defendants no. 1&3 cannot be denied protection under sec.15(2) of the EC Act.
49. There is another vital aspect, which cannot be ignored. Perusal of the FIR would show that the raiding team on reaching the suit property for the first time met the defendant no.4, who introduced himself as "supervisor" of the cement store and also named four partners of the store. Possession of the suit property at that time was with those four partners or at least the defendant no.4 in their capacity as tenants under the plaintiff, which is also the case in the plaint. So, the person who suffered deprivation of possession of the suit property was the defendant no.4 and not the plaintiff. Right to recover damages from the defendants no.1&3, if any also vests in the defendant no.4 and not in the plaintiff. Plaintiff's right to recover occupation charges lies against defendant no.4 only and not against others since as per plaintiff's own case, possession of the suit property had been given by him to the defendant no.4. Other defendants fall quite remote to the plaintiff and he cannot claim against them.
50. In view of the above discussion, issue no.4 is decided CS/138/05 Page of 27 of 29 pages 28 against the plaintiff and it is held not proved that plaintiff is entitled to recover the suit amount from all the defendants jointly and severally. It is held that plaintiff is entitled to recover the above quantified occupation charges from the defendant no.4 only.
ISSUE NO.5 (RELIEF):-
51. Plaintiff also claims presuit, pendente lite and future interest at a rate of 24% per annum. But no evidence was led by the plaintiff in that regard. Considering the overall circumstances of this case and law laid down in the case of UNICORN(supra), since plaintiff never issued any demand notice to the defendant no.4, presuit interest cannot be granted; plaintiff is entitled to only pendente lite and future interest at a rate of 8% per annum on the occupation charges quantified above.
52. In view of above discussion, suit of plaintiff against the defendants no.1 to 3 is dismissed and suit of plaintiff against the defendant no.4 is decreed for a sum of Rs.2,21,000/- (Rupees Two Lakh Twenty One Thousand only) with cost and interest at a rate of 8% per annum from the date of filing the CS/138/05 Page of 28 of 29 pages 29 suit till the date of actual payment.
53. Decree sheet be accordingly drawn up and file be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 09th April 2007 (GIRISH KATHPALIA) ADDL. DISTRICT & SESSIONS JUDGE DELHI CS/138/05 Page of 29 of 29 pages