Patna High Court
Chetandas Gulabchand vs The State Of Bihar on 14 April, 1958
Equivalent citations: AIR1958PAT512, AIR 1958 PATNA 512
JUDGMENT S.C. Misra, J.
1. This is an appeal by the plaintiffs who are a registered firm having their principal place of business at Purnea with branches at various places within the district of Purnea. The suit was instituted for realisation of a sum of Rs. 15,895/-, which represented the value of 18 bales of cloth, together with interest thereon and loss of profit, in the following circumstances.
2. The plaintiffs are dealers in textile goods and also acted as importers of cloth for the sadar sub-division of the district of Purnea and held a licence from the Government of Bihar for that purpose. The plaintiffs accordingly ordered purchase of cloth in different parts of the country. In the year 1945, there was restriction on the carriage of goods to Purnea by railway through Karha Gola and, accordingly, the plaintiffs arranged to get their consignment of cloth through Nirmali railway station in the district of Bhagalpur. The arrangement was that delivery of the consignment would be taken at Ninnali and thereafter it would be taken to Purnea by boat and bullock carts. 18 bales of cloth were received accordingly at the Nirmali railway station and the plaintiffs' men went to take delivery of the goods on production of the railway receipts, but, under orders from the Additional District Magistrate of Saharsa, the railway receipts were seized by some local officers of the Government, who took delivery of the consignment. The plaintiffs came to learn later on that the cloth was sold and the sale proceeds were deposited in the Government Sub-Treasury at Supaul.
All attempts on the part of the plaintiffs to recover their property failed in spite of the recommendation of the District Magistrate of Purnea for release of the cloth. When, however, the plaintiffs learnt that all the 18 bales had been sold away, they approached the Additional District Magistrate of Saharsa for payment of compensation, at the rate of ex-mill price plus 10 per cent, but the Additional District Magistrate of Saharsa refused to pay the compensation and, accordingly, notice had to be served on the Government under Section 80 of the Civil "Procedure Code and the present suit had to be instituted basing the cause of action on the refusal of the Additional District Magistrate of Saharsa to accede to the plaintiffs' claim, which took place on 15th July, 1946.
3. The defendant, who is the State of Bihar, resisted the claim of the plaintiffs on a number of grounds including limitation and inadequacy of the notice under Section 80 of the Code of Civil Procedure. It was also pleaded that Section 16 (1) of the Defence of India Act was a bar to the maintainability of the suit. It was also stated that as the entire procedure of requisition and acquisition under Rule 75-A of the Defence of India Rules was done in good faith for maintenance of supplies essential to the life of the community and in conformity with the law then existing, the suit was not maintainable also under Section 17, Sub-section (1) of the Defence of India Act.
4. The learned Additional Subordinate Judge of Madhepura tried the suit and dismissed it holding that the suit was barred by limitation under Articles 26 and 49 of the Indian Limitation Act. He held, however, in favour of the plaintiffs on all other points such as jurisdiction of the Court to try the suit, Sections 16 (1) and 17 (1) of the Defence of India Act not being a bar, details given by the plaintiffs to be correct, amount of compensation not exaggerated and the plaintiffs also being entitled to get interest.
5. Learned counsel for the appellants has contended that the Court below was wrong in holding that the suit was barred under Article 49 of the Limitation Act and that it should have been held that the claim was within time as Article 120 of the Limitation Act-applied to the present case. The refusal by the Additional District Magistrate of Saharsa to pay the compensation to the plaintiffs having been made on 15th July, 1946, and the suit having been filed on 14th September, 1949, it was well within the period of six years as provided for under Article X20 of the Indian Limitation Act.
Learned Government Advocate, appearing for the respondent has, however, urged that the suit should be governed by Article 2 and, accordingly, it is barred as it provides only a period of 90 days from the date of the act o£ omission giving rise to the cause o£ action for compensation. Learned Counsel for the parties have referred in this connection to the following Articles of the Limitation Act as having a bearing on the question, i.e., 2, 14, 29, 36, 49 and 120.
I would begin with Article 14. This deals with the limitation for setting aside any act or order of any officer of Government in his official capacity for which no provision is expressly made' in the Act. The Article is clearly inapplicable as the present suit is one for compensation for seizure of the plaintiffs' cloth and not for setting aside the order of seizure.
Article 29 provides for compensation for wrongful seizure of movable property under legal process. This too is inapplicable because there is no question of Seizure of movable property under legal process in the present case. There was nothing due from the plaintiffs in realization of which the plaintiffs movable property was seized, such as a revenue officer taking recourse to distraint of the judgment debtor's properties for recovery of the amount of revenue or otherwise the use of the provisions of the Public Demands Recovery Act, etc. Article 36 provides for the period of limitation for a suit for compensation for any malfeasance, misfeasance or non-feasance independent of contract and not specifically provided for in the Limitation Act. The scope, of the Article is confined to the acts of omissions and commissions of the nature of torts. The claim of the plaintiff in the present suit is not based on any tortious act by the officer of the State of Bihar and as such this Article also is not applicable.
Article 49 provides for a case where the cause of action is based on the seizure of specific movable property and for recovery thereof as also for compensation for wrongfully detaining the same; The learned Subordinate Judge held that the present suit being one for compensation for wrongful seizure of the plaintiffs' cloth by the Additional District Magistrate of Saharsa, the suit would be governed by this Article.
Article 120, as is well known, is a residuary Article for a suit for which no period of limitation is provided elsewhere in the Schedule to the Limitation Act. Mr. Lalnarayan Sinha, for the respondent, has pressed for acceptance of the applicability of Articles. 2 and 49 and Mr. B. C. De, for the appellants, has contended that Article 120 is the proper Article which governs the case. Article 2 reads thus :
"A suit for compensation for doing or for omitting to, do an act alleged to be in pursuance of any enactment in force for the time being in the Provinces, Ninety days When the act or omission takes place."
It has been contended that the Additional District Magistrate of Saharsa purported to seize the cloth belonging to the plaintiffs in pursuance of Rule 75-A of the Defence of India Rules, and as such the seizure must be held to be one in pursuance of an enactment for the time being in force. Article 2, therefore, in terms, applies to the case. I am, however, unable to accede to the contention advanced by Mr. Lalnarayan Sinha.
The matter has been considered in a number of decisions by the various High Courts including a Division Bench ruling of this Court in Secy. of State v. Lodna Colliery Co. Ltd., ILR 15 Pat 510: (AIR 1936 Pat 513) (A). Courtney-Terrell, C. J., has definitely held therein that the object of this Article is the protection of public officials who, while bona fids purporting to act in exercise of a statutory power, have exceeded that power and have committed a tortious act.
No doubt, the language of the Article is not very happy, as was observed by Dhavle, J. in the above case, but the principle laid down herein has been held to be the correct principle. The same opinion, has been expressed by the other High Courts as well and there is no reason to depart from what may be regarded as the stare decisis on the interpretation or scope of this Article.
The contention of Mr. Lalnarayan Sinha must accordingly fail. As for the applicability of Article 49, Mr. Lalnarayan Sinha has urged that the facts of the casa attract the provisions of this Article and the suit must be held to be barred by it. He has referred in this connection to the notice by the plaintiffs under Section 80 of the Code of Civil Procedure given to the defendant (Ext. 1) wherein the following passage occurs :
'That 18 bales of cloth belonging to my clients booked from .......... from where my clients wanted to take them to Purnea City by boat and by bullock carts but most unfortunately they were seized by the Local Government authorities without any rhyme and reason and without any fault of my clients. That in spite of recommendations made by the District Magistrate, Purnea for release of the aforesaid bales to my clients and in spite of repeated request the aforesaid 18 bales were not released though some Government Officer of the place recommended release.
That the aforesaid bales were sold by the Government and the sale proceeds deposited in treasury which in spite of repeated request has not yet been paid to my clients who have suffered and are incurring heavy loss and they have no remedy than to institute suit for the recovery of their claims."
It has been contended that it is a clear case of wrongful seizure made by the plaintiffs and as such Article 49 would apply. Learned Counsel for the appellant, however, has urged that the cause of action alleged in the notice under Section 80, Civil Procedure Code, was not wrongful seizure, which words were also carefully avoided, but that the cause of action stated therein was that the seized bales were sold by the Government and the sale proceeds were deposited in the treasury which, in spite of repeated request, had not been paid to the plaintiffs who had suffered and were incurring heavy loss.
The cause of action mentioned in paragraph 11' of the plaint also was that it arose on 15th July, 1946, when the claim of the plaintiffs was finally rejected by the Additional District Magistrate of Saharsa, Nothing was alleged in the plaint with regard to the wrongful seizure although a grievance was made in paragraph 5 that the plaintiffs' cloth should not have been seized by the local authorities while it was lying at the Nirmali railway station. In my opinion, since the cause of action mentioned in the plaint is the refusal to pay compensation to the plaintiffs it cannot be successfully urged that the suit was based on at claim of wrongful seizure.
6. Mr. Lalnarayan Sinha, however, has endeavoured further to develop his argument with reference to Rule 75-A of the Defence of India Rules He has contended that even if the seizure was held to be rightful and the plaintiffs' case was laid as one for compensation, it may be evidently referable to a subsequent sale of goods by the Additional District Magistrate and not to the act of seizure.
In the context of the present case and the evidence on record the Additional District Magistrate, no doubt, purported to requisition the good but there was no order for acquisition of the same. The sale of the goods, in the circumstances, would be tantamount to wrongful forfeiture. In any case, it would be a wrongful act and Article 49 would be a bar to the claim in the present suit from the date of the sale of the cloth. Rule 75-A, in so far as it is relevant, runs thus :
"75-A. (1) If in the opinion of the Central Government or the Provincial Government it is necessary or expedient so to do for securing the defence of British India, public safety, the maintenance of public order or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, that Government may by order in writing requisition any property, movable or immovable, and may make such further orders as appear to that Government to be necessary or expedient in connection with the requisitioning :
Provided that no property used for the purpose of religious worship and no such property a is referred to in Rule 66 or in Rule 72 shall be requisitioned under this rule.
(2) Where the Central Government or the Provincial Government has requisitioned any property under Sub-rule (1), that Government may use or deal with the property in such manner as may appear to it to be expedient, and may acquire it by serving on the owner thereof, or where the owner is not readily traceable or the ownership is in dispute, by publishing in the Official Gazette, a notice stating that the Central or Provincial Government, as the case may be, has decided to acquire it in pursuance of this rule."
It has been contended that Exhibit D (1) is a Bihar Gazette Notification dated 18th July, 1945, which contains the following :
"..... ... Read letter No. 14990 P. C. dated 13th June, 1945, from the Government of Bihar, Supply and Price Control Department. Whereas it is expedient for maintaining supplies and services essential to the life of the community, in exercise of the powers conferred on me by Sub-rule (2) to Rule 75-A of the Defence of India Rules, read with Notification No. 1886 O. R./1/42 dated 25th April, 1942, of the Government of India, in the Defence Co-ordination Department, the bales of cloth as per Appendix J.
now lying in the goods-shed at Nirmali Railway Station in the Sub-district of Saharsa, in the custody of the Station Master of Nirmali are hereby requisitioned under Rule 75-A of the Defence of India Rules".
Accordingly, the act of the Additional District Magistrate amounts to mere requisition which must be confined to temporary user. In order that the act of the Additional District Magistrate in ordering the sale of the cloth might be a legal act, there should have been a further order for acquisition thereof in terms of Sub-rule (2) of Rule 75-A. Mr. B. C. De, for the respondent has, however, contended that Exhibit D (1) should be read as comprehensive enough to include both requisition and acquisition although the word used there is "requisitioned" as there is also a reference to Sub-rule (2), Sub-rule (1) relates to an order of requisition.
Sub-rule (2) empowers the Government to use or deal with the property requisitioned in such manner as may appear to it to be expedient, and also provides for its acquisition by serving a notice on the owner, and, where the owner is not readily traceable, by publishing in the Official Gazette a 'notice stating that the Government has decided to acquire jt in pursuance of this rule.
Mr. Lalnarayan Sinha has contended that since Sub-rule (1) speaks of a requisition by order in writing to be followed subsequently by the order of acquisition, there should be two distinct orders to that effect. It appears to me, however, that the argument is too technical and not warranted by the terms of Sub-rules (1) and (2). Mr. B. C. De, in my opinion, has rightly contended that these rules do not make the passing of two distinct orders obligatory.
It is the substance of the matter which has to be considered in deciding whether the requirements of the two sub-rules have been fulfilled in a particular case. Since the Additional District Magistrate has used the expression "requisition" and has also published the notification in the gazette, because the owners were not readily traceable, there is sufficient compliance with the two sub-rules and it cannot be successfully urged that there is no requisition followed by acquisition.
In that view of the matter, I think it unnecessary to consider the further argument of Mr. B. C. De that in accordance with Sub-rule (2) as soon as the property has been requisitioned under Sub-rule (1) the Government may use or deal with the property in such manner as may appear to it to be expedient and sale of the cloth also is included within the power of the Government to use or deal with the requisitioned property.
No doubt, in the case of Ramji Valji v. J. N. Singh, AIR 1957 Pat 637 (B), of this Court, this line of reasoning has been adopted. Since, however, I have held that Exhibit D (1) is a sufficient compliance with the requirements of the two sub-rules, there is no force in the contention on behalf of the State of Bihar that there was no order of acquisition in the present case.
If, therefore, there were both requisition and acquisition, the sale of the goods under the authority of the Additional District Magistrate of Saharsa cannot be held to be a wrongful act and Article 49 of the Limitation Act would not be attracted to the facts of the present case. The case of Panchanan Das v. Province of Orissa, AIR 1955 Orissa 57 (C), with which I shall have occasion to deal subsequently in connection with another branch of the argument of Mr. Sinha, is a complete answer that the present case is governed by Article 120 of the Limitation Act and not by Article 49. The Court below, in my opinion, was in error in applying Article 49 to this case.
7. Mr. Sinha, for the respondent, has further contended that even if the seizure and sale were held to be valid, there will still be no ascertained amount for which the suit could lie. The Civil Court cannot ascertain the amount of compensation. Reliance is placed in support of this contention on Sub-rule (4) of Rule 75-A, which provides that :
"Whenever in pursuance of Sub-rule (1) or Sub-rule (2) the Central Government or the Provincial Government requisitions or acquires any moveable property, the owner thereof shall be paid such compensation as that Government may determine."
It has been urged that in the present case the only remedy of the plaintiffs was to apply to the Government of Bihar for payment of compensation and the Civil Court would have no jurisdiction to go into the question. In any view, the Civil Court would not be competent to determine the amount as in terms of Sub-rule (4), the machinery for determining compensation has been specified to be the Government.
The right of the plaintiffs to get compensation is a statutory right provided in Sub-rule (4) and, minus that sub-rule, the plaintiffs would be re-medyless against an act of the Government for seizure of the moveable property of the subject under Section 299 of the Government of India Act, 1935. It appears to me, however, that Section 299 of the Government of India Act, 1935, is not relevant for the determination of the present question. Section 299, provides as follows :
"299(1). No person shall be deprived of his property in British India save by authority of law.
(2) Neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest in, or in any company owning, any commercial or industrial undertaking unless the law provides for the payment of compensation for the property acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, it is to be determined.
(3) x x x x x (4) Nothing in this section shall affect the provisions of any law in force at the date of the passing of this Act.
(5) In this section land includes immovable property of every kind and any rights in or over such property, and 'undertaking' includes part of an undertaking."
Sub-section (2) of this section, on which stress has been laid by Mr. Sinha, merely lays, down the limits within which a Federal or Provincial Legislature would be empowered to legislate in regard to the compulsory acquisition of any land, etc. for public purposes providing for payment of compensation for the property. It does not, however, lay down that in regard to movable property, Government would be at liberty to acquire it without compensation, While thus there is a positive provision for the payment of compensation in regard to the acquisition of immovable property, this does not lay down that in the matter of acquisition of movable property the subject has no right whatsoever against the State. No decision has been cited in support of this contention. On the contrary, in the case of The State of Bihar v. Sir Kameshwar Singh, AIR 1952 SC 252 (D), Mahajan, J. after an elaborate discussion of the point concluded thus at page, 271 :
"It is clear, therefore, that the obligation for payment of just compensation is a necessary incident of the power of compulsory acquisition of property, both under the doctrine of the English Common Law as well as under the continental doctrine of eminent domain, subsequently adopted in America."
Again in Maharajdhiraj Kameshwar Singh v. State of Bihar, ILR 29 Pat 790: (AIR 1950 Pat 392) (SB) (E), Das, J., while considering Section 299 of the Government of India Act, 1935 observed thus :
"The effect of the two parts of the sub-section read together is clearly this : it is not open to any legislature to make any law authorising the compulsory acquisition of land unless the following two conditions are fulfilled. The first or rather inherent condition is that the compulsory acquisition must be for public purposes.
It is true that Sub-section (2) of Section 299, as worded, does not, strictly speaking, make 'public purposes' a condition precedent, but rather assumes that compulsory acquisition can be for public purposes only; it makes 'public purposes' inherent in compulsory acquisition. Regulation I of 1824 -- perhaps the earliest Regulation relating to acquisition or property by Government -- recognised the principle that such acquisition is made "for purposes of general convenience to the community or arrangement of public utility'. ......
The second condition is that it must provide for compensation, and either fix the amount of compensation or specify the principles on which the payment of compensation is to be determined." His Lordship quoted from the report of the Joint Parliamentary Committee the following passage :
"We think that some general provision should be inserted in the Constitution Act, safe-guarding private property against expropriation, in order to quiet doubts which have been aroused in recent years by certain Indian utterances. It is obviously difficult to frame any general provision with this object without unduly restricting the powers of the Legislature in relation particularly to taxation; in fact, much the same difficulties would be presented as those which we have discussed above in relation to fundamental rights.
We do not attempt to define with precision the scope of the provision we have in mind, the drafting of which will require careful consideration for the reasons we have indicated; but we think that it should secure that legislation expropriating, or authorising the expropriation of, the properly of particular individuals should be lawful only if confined to expropriation for public purposes and iff compensation is determined, either in the first instance or on appeal, by some independent authority.
General legislation, on the other hand, the effect of which would be to transfer to public ownership some particular class of property, or to extinguish or modify the rights of individuals in it, ought, we think, to require the previous sanction of the Governor-General or Governor (as the case may be) to its introduction; and in that event he should be directed by his Instrument of Instructions to take into account as a relevant factor the nature of the provisions proposed for compensating those whose interests will be adversely affected by the legislation."
The word used in the quotation from the Report is 'property' irrespective of whether it is movable or immovable. It is no doubt true that Section 299 (2) referred in terms to immovable property and properties of the nature described therein, but nothing is contained in that section to show that the Legislature intended to curtail the common law right of the citizen to be compensated by the State if his movable property was acquired unless, conceivably, a provision to that effect was made in some legislation on which latter point I am not making any distinct pronouncement. In my opinion, therefore, Section 299 does not have any bearing on the contention that the right of the plaintiffs is governed only by Sub-rule (4) of Rule 75-A of the Defence of India. Rules,
8. I am also not impressed by the argument that the plaintiffs should have applied to the Government for determination of the amount of compensation and failing that their remedy lay by way of a suit for injunction under Section 55 of the Specific Relief Act for compelling the Government to determine the amount. In the present case, the; plaintiffs claimed the price realised out of the sale of their cloth which was lying in the Supoul Sub-treasury; there is no question of having the amount of compensation otherwise ascertained.
Moreover, when the plaintiffs applied on 31st March, 1945 (Ext. 5 (1)) for payment of the price of the bales of cloth belonging to them and seized by Government and further renewed that prayer by petition dated 4th December, 1945, in the Court of the Additional District Magistrate, Saharsa (Ext. 5 (a)), and when the prayer of the plaintiff was turned down by the Additional District Magistrate, it amounts to refusal to exercise' jurisdiction to determine the amount of compensation, and in that case there is no reason why the present suit should not be maintainable in the Civil Court.
The case of AIR 1955 Orissa 57 (C), is an authority for this purpose as well. Mr. Sinha has contended that that case was not correctly decided. In my opinion, however, the decision referred to above is based on sound principle and I see no justification for departing from the view of law adopted by the learned Judges in the above case. The same principle has been laid down in the case of State of West Bengal v. Brindaban Chandra Paramanik, AIR 1957 Cal 44 (F).
That too was a suit for compensation in regard to the requisition of paddy by the Government of West Bengal under Rule 75-A of the Defence of India Rules. No doubt, in that case the amount of compensation was assessed by the Government but, so far as the suit for payment of compensation was concerned, it was held to be competent. The English cases referred to by Mr. Sinha, Milnes v. Gery, (1S07) 33 ER 574 (G); Tillett v. Charing Cross Bridge Co., (1859) 53 ER 959 (H); Darbey v. Whitaker, (1857) 62 ER 52 (I) and Babbage v. Coulburn, (1882) 9 QBD 235 (J), are all cases where matters arose out of a contractual relation whereby the machinery for deciding a dispute between the contracting parties was fixed and these have evidently no bearing on the present question.
Mr. B. C. De has also placed reliance on the case of AIR 1936 Pat 513 (A), which was a case under the Land Acquisition (Mines) Act. In that case also it was held that the Civil Court had jurisdiction to determine the amount of compensation. In my opinion, the principle of that case applies to the facts of the present dispute as well. Accordingly I overrule the contention raised on behalf of the respondent.
9. Mr. Lalnarayan Sinha has urged, in the nest place, that, in any case, the act of the Additional District Magistrate of Saharsa was a personal one and, as such, he alone could be held liable. In my opinion, this contention is also without any substance. In the first place, I have held that there was no irregularity committed by the Additional District Magistrate in passing the Order of requisition and acquisition and his act was not tortious.
The question, therefore, of making him personally liable is not pertinent to the present controversy. Mr. Sinha has, however, placed reliance in the case of District Board, Bhagalpur v. Province of Bihar, 1954 BL JR 603: (AIR 1954 Pat 529) (K), for the proposition that a tortious act of the servant of the State will not make the State fiable, even if he commits it in bona fide discharge of his duties as a Government servant.
As I have held, however, this argument is Also academic. In the present case, the seizure was not wrongful and, as such, not tortious and, if it were so, I would hold the State still liable because the act of the servant in the present case is one which was ratified by the State as it refused to pay compensation to the plaintiff or to state that the Additional District Magistrate, Saharsa was personally liable and, in any case, the State did profit by the act in retaining the amount in its Treasury.
In accordance with the principle laid down in the case of The Secy. of State v. Cockcraft, ILR 39 Mad 351: (AIR 1915 Mad 993) (L), and the above Patna case, the State would be liable to the extent of the amount by which it profited by the wrongful act of its servant. This contention, therefore, also cannot be sustained.
10. Mr. Sinha has also endeavoured to support the judgment of the Court below on the ground that the - plaintiff having urged illegal seizure he cannot be permitted to turn round and rely on the position that the seizure initially was legal, Mr. De has contended, in reply, that, in the first place, there is no assertion of illegal seizure; but even if it were, the case should be decided on the facts found by the Court.
The defendant could not take shelter under this plea to defeat the plaintiffs' claim as, in the written statement itself, it was distinctly pleaded that the seizure was bona fide and legal. In any view, as was held in the case of Nand Kumar Sinha v. Rai Bahadur Pashupati Ghosh, AIR 1941 Pat 385 (M), the decision would in such circumstances rest upon the facts found, and not on the facts alleged. Mr. Sinha has not pressed any contention with regard to Sections 16 (1) and 17 (I) of the Defence of India Act operating as a bar against the maintainability of the suit and as such that matter has not been considered by me.
11. On the conclusions arrived at above, it must be held that the suit is not barred by limitation, nor is there any other legal hurdle in the plaintiffs' claim being decreed.
12. The appeal is allowed, the judgment and decree of the Court below are set aside and the suit of the plaintiffs is decreed with costs except with regard to the claim for interest for which there was no contractual liability.
S.C. Prasad, J.
13. I agree to the order proposed. In my view, the plaintiffs' suit was based really and in substance on the cause of action arising in their favour by reason of the fact that the defendant (The State of Bihar) had declined to determine and to pay the compensation which was payable to the plaintiffs under Rule 75-A of the Defence of India Rules as a consequence of the goods (bales of cloth) having been requisitioned and thereafter sold under the above rule.
The plaintiffs, as it appears from the evidence, had filed their claim for compensation before the Additional District Magistrate, Saharsa (vide Ext. 5a dated 4th December, 1945). From another document (Ext. 2c dated 23rd April, 1947), it appears that the plaintiffs had again written to the Additional District Magistrate, Saharsa, drawing his attention to the fact that there was one claim for compensation of the cloth bales pending with the Additional District Magistrate since long and that the Additional District Magistrate had been kind enough to have deputed the S. D. O., Supaul, for enquiry. The plaintiffs wanted to know what had been the result of the enquiry and when they should approach the Additional District Magistrate for payment. The order passed on this petition K dated 29th April, 1947, and is to the following effect:
"From previous papers available it appeass that his claims have not been accepted and that all his 18 bales have been sold out and deposited in the Supaul Sub-treasury."
It further appear that this order dated 29th April, 1947 refers to the previous order dated 15th July, 1946 (vide Ext. E-l), according to which order it appears that the petition filed by the plaintiffs in June, 1946 (vide Ext. 5-h) had been rejected. That petition of June, 1946 had been filed in pursuance of the order of the Additional District Magistrate passed on 8th June, 1946 (vide Ext. E-2) in which the Additional District Magistrate had asked the plaintiffs to satisfy him as to their bona fides on the point that they were not taking the goods for smuggling to Nepal for illicit sale.
Having regard to all these facts, it appears that the plaintiffs did not base their claim in this case on wrongful seizure and sale of their property by the Additional District Magistrate, but on the fact that the Additional District Magistrate had declined to determine the compensation payable to them under Rule 75-A of the Defence of India Rules. In my opinion, therefore, this case will be governed by Article 120 of the Indian Limitation Act and not by the other articles relied upon by the learned Counsel for the respondent, namely, Articles 2, 14, 29, 36 and 48 of the Indian Limitation Act.
It is well settled that when a conversion consists of a wrongful sale of goods, the owner of those goods may waive the tort and sue the defendant for enforcing the statutory liability imposed on the defendant to pay compensation to the owners of the goods. In this particular case, under Rule 75(A), the Government were bound to compensate the plaintiffs, though the amount of compensation was in their discretion, but this did not entitle the Government, namely, the defendant respondent, to decline to pay any compensation whatsoever to the plaintiffs even when they applied for it.
In such circumstances, the plaintiffs were certainly entitled to come to the Civil Court to enforce their right to compensation, unlike that case where an Act prescribes a particular procedure for tile ascertainment of such rights by a specified authority thereby, by necessary implication, ousting the jurisdiction of the ordinary Courts, such a jurisdiction having, in my view, also remained untouched by Clause (1) of Section 16 of the Defence Act. Such a claim is, in my opinion, not governed by any of the aforesaid articles of the Indian Limitation Act, but by the residuary article, namely, Article 120 of the same Act. Consequently I agree that the claim of the plaintiffs is not barred by limitation.