Patna High Court
State Of Bihar vs Pirthi Chand Lall Choudhary on 17 August, 1963
Equivalent citations: AIR 1964 PATNA 13, ILR 44 PAT 105
JUDGMENT G.N. Prasad, J.
1. This is an appeal by the defendants. It arises out of a suit instituted by the plaintiff-respondent for recovery of damages from the defendants for loss alleged to have been caused to him on account of wrongful and illegal interference on their part with the possession and management of the plaintiff's estates and tenures between the 1st January, 1950, and the 15th July, 1950, or even thereafter until the 6th or the 7th August, 1950.
2. During the relevant period, the plaintiff was the proprietor of a large estate situate in the district of Purnea, known as "Raj Nazarganj" which comprised more than 200 Tauzis, of several of which the plaintiff was the sixteen annas proprietor, while holding fractional shares in the rest.
3. In 1949, the Bihar legislature passed an Act called "The Bihar State Management of Estates and Tenures Act, 1949" to provide for the State management of estates and tenures in the then Province of Bihar. This Act, which was Bihar Act XXI of 1949, received the assent of the Governor-General on the 29th September, 1949 and it was published in the Bihar Gazette, Extraordinary, on the 17th October, 1949. It is necessary to have an idea of the relevant provisions of the Act.
4. Section 3 (1) of the Act empowered the Provincial Government to issue a notification declaring "that the estates or tenures of a proprietor or tenure-holder, specified in the notification, shall be placed under the management of the Provincial Government, and on the publication of the said notification, the estates or tenures of such proprietor or tenure holder shall, so long as tile notification remains in force, be deemed to have been placed under the management of the Provincial Government with effect from the date of the commencement of management". Section 3 (2) of the Act laid down that the notification envisaged in Section 3 (1) shall --
(a) specify such particulars of the estates or tenures as may be prescribed;
(b) specify the period for which the estates or tenures shall be placed under the management of the Provincial Government; and,
(c) vest the management of such estates of tenures in a person to be called the Manager, who shall be an officer not below the rank of a Deputy Collector.
5. The consequences of placing an estate or tenure under the management of the Provincial Government were laid down in Section 4 of the Act. One of such consequences was that with effect from the date of commencement of the State Management, and so long such management continued, the proprietor or tenure holder ceased to have any power of management of the estate or tenure concerned or to grant valid receipts for the rents and profits arising or accruing therefrom including arrears of rent and profits which were payable to him on the date of commencement of the Slate Management. All such rents and profits including the arrears thereof were during the period of State management made payable to the Manager whose receipts alone were to operate as valid discharge of the dues mentioned therein. Another consequence which followed the vesting of the management of the estates or tenures in the Manager was that all suits and proceedings which might be pending in any Court at the date of the commencement of the State management in respect of any debts or liabilities of the proprietor or tenure holder, the payment of which was a charge on the estates or tenures concerned or any portion thereof, were barred or renderd null and void. But by virtue of Section 32 of the Act, all such suits and proceedings were to be instituted or continued by the Manager in his own name as representing the proprietor or tenure-holder concerned. Subject to certain conditions which are not relevant to our present purposes, the Manager was empowered to take charge of such estates or tenures together with such papers and other properties appertaining thereto as in his opinion were essential for the proper management of estates and tenures in question. Under Section 5 of the Act, he had also the power to compel the proprietor or tenure-holder to produce before him such documents, papers or registers relating to the estates or tenures in question or to furnish him with such information as he might deem necessary for their management,
6. Section 22 of the Act enjoined upon the Manager to "manage the property committed to him deligently and faithfully" and to act in every respect "to the best of his judgment". The duties of the Manager were specified in Section 23 of the Act, which, among other things, provided that the Manager shall have care of the property entrusted to" him for management and "be responsible for any loss occasioned to the property by his wilful default or gross negligence". Section 23 of the Act laid down the manner in which disbursements of all moneys received by the Manager in respect of the estate or tenures in question were to be made. This had to be done in accordance with such instructions as the Provincial Government might, from time to time, give in this behalf and in a certain order of priorities, unless the Provincial Government directed otherwise. Section 27 of the Act provides for an appeal against every order of the Manager to an appellate authority whose decision was to be final and not liable to be questioned in any Court. Sections 30 and 31 of the Act barred the jurisdiction of Courts in regard to certain matter.
7. Finally, reference may be made to Section 33 of the Act which entitled the Provincial Government to relinquish, at any time, the management of the estates or tenures of which charge had been taken under the Act and to restore the same to the proprietor or tenure-holder or his heir, as the case might be, with consequential effects.
8. In regard to certain estates and tenures constituting a sizeable part of Raj Nazarganj, two notifications were issued under Section 3 (1) of the Act; one dated the 19th November, 1949, and the other dated the 16th March, 1950. Under the first notification, which was published in the Bihar Gazette (Extraordinary) dated the 30th November, 1949, the management of the plaintiff's interest in 98 Tauzis mentioned in the schedule attached to the notification was taken over and vested in Shri Jyoti Prasad Mukherji, who was then the Additional Collector of Purnea. The second notification was really intended to be supplemental to and corrective of the first notification in which certain omissions and mistakes were found to have cropped in. It is, however, an admitted position in this case that only 88 out of the notified Tauzis were actually taken over and placed under the management of Shri Jyoti Prasad Mukherji.
9. In the meantime, the constitutional validity of the Bihar State Management of Estates and Tenures Act, 1949, came to be challenged before a Special Bench of this Court in the case of Kameshwar Singh v. The State of Bihar, ILR 29 Pat 790 : (AIR 1950 Pat 392). The Special, Bench, composed of three Judges, gave its decision on the 5th June, 1950, holding that the Act was constitutionally invalid. After the decision of the Special Bench, the State Government took steps to relinquish the management of the plaintiff's estates and tenures and restore it to the plaintiff. On the 3rd July, 1950, the Collector of Purnea informed the plaintiff that he should take charge of his estate by the 15th July, 1950. On the 6th July, 1950, the two notifications under Section 3 (1) of the Act, referred to above, were cancelled. The management was actually restored to the plaintiff on the 7th August, 1950. The present suit was instituted by the plaintiff on the 21st September, 1951, impleading the State of Bihar as defendant No. 1 and the Manager, Shri Jyoti Prasad Mukherji (since deceased) as defendant No. 2.
10. In substance, the case set up by the plaintiff is that the defendants had been illegally and wrongfully in possession of the plaintiff's estates and tenures between the 1st January, 1950, and the 7th August, 1950, and that on account of their negligence and wilful default, they had caused heavy pecuniary loss to the plaintiff who is in consequence entitled to a decree for damages against the defendants. It is alleged, in the first instance, that the defendants acted quite illegally in taking over the management of the plaintiff's estates and tenures under the colour of authority derived under an enactment which was void ab initio, so that their possession of the plaintiff's estates and tenures between the 1st January, 1950, and the 7th August, 1950, was that of mere trespassers. Secondly, it is alleged that the defendants acted with gross negligence and were guilty of wilful default in discharge of their duties and responsibilities under the Act in respect of the estates and tenures which they had taken over, with the consequence that heavy pecuniary loss was caused to the plaintiff on the following grounds:
(i) The notification dated the 10th, November, 1949, was in respect of only fractional shares of the plaintiff in some of his biggest Tauzis instead of his complete shares therein. Under the provisions of the Act, the notification should have been in respect of the complete shares of the proprietor in the different Tauzis. The inevitable effect of issuing the notification in the form in which it was issued was to render the management of the estates and tenures in question an unpractical proposition, and neither the defendants were able to make effective management of the plaintiff's property nor the plaintiff was, by reason of the provision, of the Act, in a position to realise the rents and profits of his estate. The jamabandis relating to the plaintiff's estates and tenures were in respect of his complete shares therein and since his incomplete shares had been notified under Section 3 (T) of the Act, no collection of rents and profits could be made on their basis either by the defendants in respect of the notified shares or by the plaintiff in respect of his tin-notified shares thereof. The result was that the plaintiff's claim to the rents and profits of his estate to a considerable extent became barred by limitation;
(ii) The defendants neglected to pay the revenue and cess kists which fell due during the period of their management. The plaintiff was compelled to pay the January kist under the threat of the sunset law;
(iii) The defendants neglected to pay the agricultural income-tax in respect of the plaintiff's estate, the result of which was that the plaintiff bad to pay a fine of Rs. 2,000/- on this account:
(iv) The defendants neglected , to institute suits or other appropriate proceedings for the realisation of arrears of rents and profits payable by tenants to the plaintiff and a considerable portion of his claims was allowed to become tune-barred. The defendants also took no steps to proceed with the pending suits and proceedings or to put into execution certain decrees which the plaintiff had obtained in respect of the rents and profits of his estate and allowed the suits to be dismissed and the decrees to become time-barred.
(v) The defendants filed a large number of certificates for the realisation of rents and profits from the tenants at the time of the Tamadi in April, 1950, but they were filed without due care and caution and most of them had ultimately to be struck off; and,
(vi) The Manager (defendant No. 2) realized about Rs. 1,00,000/- as rents and profits from the estate which had vested in him, but he squandered away the entire amount without disbursing the same in accordance with the provisions of Section 25 of the Act.
11. The plaintiff has tentatively assessed the quantum of his damages at Rs. 2,00,000/-, has also prayed for an inquiry to ascertain the actual amount of damages or compensation payable to him, offering to pay additional court-fee, in case the amount to which he is found entitled exceeds the sum of Rs. 2,00,000/-.
12. Separate written statements denying the plaintiff's claim were filed by the two defendants, but with almost identical pleas. The suit was contested on principally the following grounds :
(i) The State Management Act, under the provisions of which the defendants had taken over the management of the plaintiff's estates and tenures, was a valid piece of legislation;
(ii) The notification dated the 19th November 1949 was not in a contravention of the provisions of the Act; the second notification dated the 16th March 1950 was not issued to remedy any defect in the first notification, but it was issued really at the request of the plaintiff himself. The notified estate had vested in defendant No. 2 with effect from the 1st January 1950, but the process of taking over the collection papers from the plaintiff began in the middle of January 1950 and was completed in April 1950, though the work of collection of the rents and profits had begun from February, 1950. The plaintiff failed to hand over the necessary collection papers to defendant No. 2 in time, with the result that defendant No. 2 was put to considerable handicap in his management. The main collection season of 1950 was over in April of that year, but the failure to make collections during the said collection season was not due to the laches of defendant No. 2;
(iii) The defendants' management having virtually begun in the middle of January 1950, the liability to pay the January kist of the Government revenue and cess was really that of the plaintiff. The defendants had paid revenue and cess for March 1950 kist in respect of 84 Tauzis and they had also paid some portion of the June 1950 kist. No loss was suffered by the plaintiff on this account since no part of his estate was sold for arrears of Government revenue or cess;
(iv) All disbursements had been made by defendant No. 2 under the instructions given to him from time to time by defendant No. 1, taking into consideration the exigencies of the situation, equity and fair play. The claim of the plaintiff under this head was totally misconceived;
(v) All actions taken by defendant No. 2 were bona fide and there was no question of any wilful default, negligence or bad faith in the management of the property entrusted to his care. A large part of the existing staff and employees of the plaintiff was retained in service and the plaintiff was in contact with the developments and all matters relating to the management of his property;
(vi) No unreasonable delay was made in restoring the management of the plaintiff's property to him and no loss was suffered by the plaintiff on this account; and,
(vii) The suit was not maintainable, being barred by the provisions of certain statutes, principally Section 9 of the Code of Civil Procedure.
13. The principal findings of the learned Additional Subordinate Judge, who tried the suit, may be summarised as follows :
(i) The suit is not barred by Section 9, Code of Civil Procedure, or under any other enactment;
(ii) The State Management Act was an invalid piece of legislation as held by the Special Bench in ILR 29 Pat 790 : (AIR 1950 Pat 392). Therefore, the actions of the defendants in depriving the plaintiff of his possession over his properties and interfering with his right of management were acts of trespass;
(iii) The notification dated the 19th November 1949 was in contravention of Section 3 (i) of the Act, at least with respect to two of the biggest Tauzis of the plaintiff's estate, namely, Mahal Surajapur bearing separate account No. 7/8 and Mahal Powakhali bearing separate account No. 30. On account of such wrong notification, to which the attention of the defendants was drawn by the plaintiff at the earliest opportunity, there was a deadlock in the management of the plaintiff's property and defendant No. 2 was able to make a very poor collection of the rents and profits of the plaintiff's estate, resulting in loss to the plaintiff on that account. Responsibilities for such loss lay with the defendants, the quantum of which would be determined by a Commissioner to be appointed for the purpose;
(iv) The plaintiff was under no obligation to hand over to defendant No. 2 a separated set of Jamabandis in respect of his notified shares. It was the duty of the defendants to have accepted the amalgamated Jamabandis which the plaintiff had been maintaining in respect of his estates and tenures and to have got the Jamabandis for the notified shares separated;
(v). On account of the negligence and wilful default of defendant No. 2 in the matter of realisation of the arrears of rents and profits of the plaintiff's property put in his charge, loss had been suffered by the plaintiff under the heads of barred rents and decrees and other dues, the actual amount of which would be determined by the Commissioner;
(vi). There was failure to pay the agricultural income-tax in time, in consequence of which the plaintiff had to pay a fine of Rs. 2,000/-; and,
(vii). A sum of Rs. 43,507/- and odd was debited on account of costs of management, which was not justified, working out as it did at about 30 per cent of the gross collections made by defendant No. 2. The defendants were entitled to a deduction of 12 1/2 per cent of the gross collections, and all amount in excess thereof must be refunded to the Plaintiff.
14. The Court below did not uphold the plaintiff's claim of loss on account of failure or delay in the matter of payment of the Government revenue and cess, holding that although such payments were made on or after the nth July, 1950, they were really for the benefit of the plaintiff. A sum of Rs. 4,533/- was paid by defendant No. 2 on the 3rd August, 1950, on account of income-tax, but the plaintiff was not entitled to recover this amount although the payment had been made subsequent to the date of the relinquishment of the plaintiff's estates and tenures. The Court below further held that loss had been suffered by the plaintiff on account of the filing of defective Tamadi certificates and suits, but the plaintiff was not entitled to recover any damages on this account since he had reserved his rights of suit on this head. With regard to certain other items of expenditure incurred by the defendants as per their statement of accounts, a direction was given to the Commissioner to scrutinise the accounts in order to see how far the plaintiff's claim was admissible. Upon these findings, the learned Additional Subordinate Judge has passed a preliminary decree for damages in favour of the defendants. Hence this appeal by the defendants. There is also a cross-objection by the Plaintiff,
15. When the appeal was first taken up for hearing before us, Mr. Lal Narain Sinha, appearing in support of the appeal, assailed the correctness of the decision of the Special Bench in ILR 29 Pat 790 : (AIR 1950 Pat 392), and urged that whatever doubt may have arisen as to the validity of the State Management Act, had been set at rest by the insertion of Article 31-A in the Constitution of India by the Constitution (First Amendment) Act on the 18th June, 1951, as amended by the Constitution (Fourth Amendment) Act, on the 27th April, 1955. Further it was contended "by Mr. Sinha before us that the authority of the Special Bench decision had been weakened by certain subsequent decisions of the Supreme Court, particularly in the cases of the State of Bihar v. Sir Kameshwar Singh, AIR 1952 SC 252, Sri Ram Ram Narain Medhi v. The State of Bombay, AIR 1959 SC 459, Raghubir Singh v. State of Ajmer, AIR 1959 SC 475, Raghubar Sarup v. State of U. P., AIR 1959 SC 909 and Guru Dalta Sharma v. State of Bihar, AIR 1961 SC 1684. Mr. S.N. Dutt appearing for the Plaintiff-Respondent, on the other hand, maintained that the decision of the Special Bench was correct and not having been expressly overruled by the Supreme Court, it was of binding effect. Having heard learned counsel on both sides, we felt that the Special Bench decision needed reconsideration in the light of certain pronouncements made by the Supreme Court in some of the aforesaid decisions. Accordingly, by our order dated the 24th July, 1962, we referred the question to a larger Bench, and the matter came to be heard by a Bench of five Judges. The Full Bench came to the following conclusions:
(i). The State Management Act was within the legislative competence of the Bihar Legislature at the time of its enactment in 1949;
(ii). The Act was neither hit by the restrictive provision of Section 299 of the Government of India Act, 1935, nor inconsistent with Article 31 (2) of the Constitution of India. It also did not violate the guarantee under Article 19 (1) (f) of the Constitution. The Act, therefore, continued to be legally valid even after the Constitution came into force on the 26th January, 1950; and,
(iii) The decision of the Special Bench in ILR 29 Pat 790 : (AIR 1950 Pat 392) was not correct. It was accordingly overruled by the Full Bench.
16. When the matter came back before this Bench, Mr. S.N. Dutta indicated to us that his client proposed to challenge the correctness of the decision of the Full Bench; but at the same time he conceded that so far at this Bench was concerned, the decision of the Full Bench had binding effect. We must, therefore, proceed upon the footing that the State Management Act, under the provisions of which the defendants had taken over the management of the plaintiff's estates and tenures as aforesaid, was a valid legislation, and the arguments advanced to the contrary on behalf of the plaintiff are without force.
17. Mr. Lal Narain Sinha put forward the argument before us that in view of the pronouncement of the Full Bench in favour of the validity of the State Management Act, the main basis of the plaintiff's claim has disappeared and that the suit is fit to be dismissed on this ground alone. In my opinion, there is no force in this contention of the learned Government Advocate. A perusal of the plaint, a summary of which has already been given above, leaves no room for doubt that the suit is not based merely upon the footing of the constitutional invalidity of the State Management Act, but also upon certain definite averments relating to wilful default and gross negligence on the part of the defendants in discharging their responsibilities and exercising their functions tinder the provisions of the Act. (This is manifest from the case put forward in the different paragraphs of the plaint, particularly paragraphs 12, 13, 14, 19, 21, 23, 24, 26 and 27. I have, therefore, no doubt in my mind that the suit is not liable to fail on the mere ground that the State Management Act has been declared by the Full Bench to be a valid legislation.
18. It is an undisputed fact in this case that in two of the biggest Tauzis, the management of which had vested in defendant No. 2, the entire shares of the plaintiff were not taken over. The notification (Ext. A-1) dated the 19th November, 1949, was in respect of 2 annas 11 gandas and odd share of the plaintiff in Mahal Surajapur bearing separate Account No. 7/8 and in respect of 4 annas 6 gandas and odd share in Mahal Powakhali bearing separate Account No. 30, while the complete shares of the plaintiff in these two Mahals were 5 annas 12 gandas and odd and 9 annas 3 gandas and odd respectively. It is also an admitted position in this case that the plaintiff was maintaining composite Jamabandis and other registers and collection papers in the serista in respect of his complete shares in each of these Mahals as also his other Tauzi, Since, however, only fractional shares of the plaintiff had been notified under Section 3 (1) of the Act and placed under the management of defendant No. 2, it was inevitable, and it is also beyond controversy, that neither the Manager (defendant No. 2) was in a position, without having the Jamabandis separated, to make collections of rents and profits in respect of the notified shares, nor the plaintiff on that account was in a position to make collections of rents and profits in respect of his un-notified shares in the Tauzis in question. Two of the plaintiff's witnesses (P. W. I in Paragraphs 15 and 16 and P. W. 2 in Paragraphs 12 and 13 of their deposition) have deposed that the main collection season in both the Mahals in question was from December to the Tamadi time in the middle of April. During this period, the plaintiff used to make collections of 70 to 75 per cent of the rentals from the tenants. But the evidence of defendant No. 2, who was D. W. 7, leaves no room for doubt that practically no collection was made by him throughout the collection season aforesaid in 1950. Admittedly D. W. 7 did not get any rent roll prepared separately in respect of the notified shares and whatever collection had been made by him was done on the basis of the Jamabandis made over to him by the plaintiff (Vide D. W. 7, paragraph 25). In paragraph 33, D. W. 7 stated that when he got the Jamabandis from the plaintiff, he found that the rents of the tenants were consolidated, and in the preceding paragraph he stated;
"I could make no collection in Touzis 7/8 and 30 prior to the second notification because, the collection papers were with the plaintiff. We got them after the second notification. I had no time to examine the Jamabandis as by the time I got them i.e., after 24th April, 1950, the collection season was over."
It is manifest, therefore, that the failure to make collections of rents and profits by defendant No. 2 during the collection season of 1950 was primarily due to the fact that in two of the biggest Mahals, only the fractional shares of the plaintiff had been notified and no collection was possible without having the Jamabandis properly separated. Evidently, the plaintiff could not have maintained such separated Jamabandis in his serista, which he could have given over to defendant No. 2 to facilitate collections. The Act also does not contain any provision, making it incumbent upon the proprietor or tenure-holder to prepare or compile a new set of Jamabandis or other collection papers on the basis of the notification of fractional shares of his interest in the different tauzis. If, therefore, the defendants had chosen to takeover only fractional shares of the plaintiff in the two Mahals, then it was incumbent upon them to have taken appropriate measures for preparing or compiling from the existing records of the estate, a set of separate Jamabandis in respect of; the notified portions of the plaintiffs shares which they had taken over, otherwise a complete standstill in the management of the estates and tenures-in question was inevitable, and, in fact, that is what actually happened in this case.
19. The learned Government Advocate maintained that in view of the definition of "tenure" incorporated in Section 2 (k) of the State Management Act, which covers also a share in or of a tenure, it was open to the State Government to notify and take over the fractional shares of the plaintiff in the Mahals in question, and that the finding of the learned Additional Subordinate Judge to the effect that the notification (Ext, A-1) was in contravention of Section 3 (1) of the Act is not sound. This contention is not without force, and it must be conceded that in law it was open to the defendants to have notified and taken over the management of the fractional shares of the plaintiff in the two Mahals. That, however, did not absolve the defendants of their own responsibility under the Act to take appropriate measures for the preparation of suitable collection papers in respect of the notified shares, particularly when Section 22 of the Act clearly enjoined upon the Manager "to manage the property committed to him diligently and faithfully" and to act in every respect "to the best of his judgment". It may be observed in this context that in one of his earliest communications (Ext. 1/A, dated the 27th December, 1949) to the Collector, the plaintiff's son emphasised certain difficulties that had cropped up on account of "defective notifications in the Gazette regarding our estate". It was pointed out in this letter (Ext. 1/A) that the plaintiff held 5 annas 12 Gandas and odd share in Tauzi No. 7/8 and that:
"The tenants ledger and all other collections papers are maintained as per above share of 5-12 1/2 and odd gandas. There is no separate tenants-ledger or collection paper for 2-11-2-2 share as notified. As per notification the management of 2-11-2-2 share only of the said Touzi shall vest in Mr. Jyoti Prasad Mukherjee, Additional Collector, Purnea on the expiry of one month from the date of the notification and the proprietary right of Raja P.C. Lall for the balance share remaining intact. If the Government do not agree to take-charge of the entire 5-12 1/2 and odd share of the said Touzi for the fact that only 2-11-2-2 share of the Touzi shall vest in the Government under the notification then the tenants ledger will have-to be prepared anew with reference to the Record of Rights, a task which will be a tremendous affair and cannot be completed, in my opinion even in six months even maintaining a big establishment. The Government in that case will not only be unable to start collection but will put the proprietor also into extreme difficulty and a great: financial loss as the proprietor also will not be in a position to continue the collection of rent from the tenants without rectifying the rent roll. If you insist on taking over management for 2-11-2-2 share then I think in all equity and justice the responsibility of the loss to be suffered by the proprietor is with the Government."
By the same letter, the plaintiff through his son made an offer that the State should take over the management of the entire 5 annas 12 1/2 gandas and odd share of the plaintiff in the Mahal in question, as a measure to avoid complications and consequent loss to the proprietor and to enable the State to proceed with the collection works of the entire estate legally, otherwise there was every possibility of a large amount of rent becoming barred, and thereby causing loss of a very big sum. The matter was emphasised by the plaintiff in his letter Ext. 1 (Z7) dated the 9th January, 1950, addressed to the Additional Revenue Collector of Purnea. It was mentioned therein, among other things, that:
"The difficulties of making over papers of Tauzi No. 7/8 and 30 etc., on account of defective notification of shares in the Touzis were explained and discussed but you verbally said that you should take the entire shares of mine both notified and not notified on your own responsibility ......
I may submit that the papers of the Estate (Nazanganj Raj) are kept Elakawari and my office insisted upon taking over charge as the papers are kept but you wanted to have it Halkawari prepared. Hence to convert the Elakawari papers to Halkawari requires time. Hence the delay in the matter which is unavoidable.
The difficulties regarding Touzis No. 7/8 Surjapur and other matters were fully explained to the Collector in the letter dated 27-12-49 of my son Kumar Vishnu Chand Lall. There was a discussion also with you and my son before the Collector but nothing was intimated to me nor to my son about the matter of taking charge in writing. It is regrettable indeed that you do not give me anything not you think it necessary to inform me all about it, when there is full co-operation on my behalf. You are avoiding legal complications and future difficulties by not giving me anything in writing by way of reply of the matters which are outside the Act. There arc no provisions in the Act for you to take charge -of the properties or portion thereof which are not notified according to Section 3(1) of the Management Act.
I am ready to make over charge of the un-notified portions of the properties for easy and smooth collection provided you express your willingness to take them in writing so that I may authorise you to take such properties to avoid legal complications. The responsibility would be yours as since 31-12-49 other properties have vested in you and unless you take authority from me (to) manage my Estate I am afraid you cannot proceed in the matter."
20. Defendant No. 2 appears to have appreciated the difficulties pointed out by the plaintiff, for, he made an endorsement dated 10-1-50 in the margin of the letter, Ext. 1 (Z-7), to the following effect:
"1. Issue revised notification re. 7/8 and T, 30.
2. Entire share shall be taken charge of. Only a letter of authorisation from Raja Saheb will do. Proportionate adjustment during the interim period will be made."
21. Subsequent correspondences between the parties which have been brought on the record, however, show that no genuine effort was made to solve the dead-lock which followed in the matter of management and particularly of making collections of rents and profits on the part of the Manager, defendant No. 2. In his letter (Ext. B) dated the 12th January, 1950, the plaintiff repeated his offer to place his un-notified portions in the two Mahals in charge of the Additional Collector to facilitate the collections of rents and profits in respect of the un-notified shares as a duly constituted attorney of the plaintiff, but no action was taken in the matter, and in a notice (Ext. 2/A) dated the 1st February, 1950, under Section 5 of the Act, defendant No. 2 required the plaintiff to produce before him certain papers, documents and registers relating to his estate or tenure and to furnish certain informations including:
(1) A list of touzis held by him with his interest therein besides touzis notified, and, (2) The mistakes, if any, in the touzis notified and the correct interest held by him therein. This notice was served upon the plaintiff in spite of the fact that in his earlier communication the plaintiff had already drawn the attention of the authorities concerned to the correct shares held by him in the two Mahals in question, in regard to which he was maintaining a set of consolidated Jamabandis and collection papers. Ignoring all the earlier correspondences of the plaintiff, the Circle Officer, Sri N. Minz (D. W. 1), addressed a vague letter (Ext. 1/i) to the plaintiff's manager on the 7th February, 1950, asking him to let him know "which Touzis were controlled by your office before taking over charge of some of the Touzis and which Touzis have not been taken overcharge and why." In his subsequent letters (Exts. 1-K and 1-J), both dated the 8th February, 1950, the plaintiff and his manager gave detailed information to defendant No. 2 and the Circle Officer, emphasising at the same time that the plaintiff was in possession of collection papers in respect of his entire shares in the Tauzis in question and that on account of notification of fractional shares therein, a deadlock had been created and the collection season was passing out. Nevertheless, defendant No. 2 in another notice (Ext. 1/m) dated the 18th February, 1930, merely insisted upon the production of papers, registers and records in respect of the notified Tauzis. Finally, by his letter (Ext. 1/n) dated the 11th March, 1950, the Collector of Purnea intimated to the plaintiff thus:
"We will not be taking over the un-notified portion until the notification is made. As soon as a notification is made we will take over these portions. Meanwhile in order to see that no limitation occurs with regard to any rent payable in you, you are requested to prepare a copy of arrear list for the un-notified portions."
22. The second notification, it will be recalled, was issued on the 16th March, 1950. But the materials on the record show that it was completely ignored, and despite the notification of the complete shares in the Tauzis concerned, defendant No. 2 and the other authorities were all the time insisting upon the production of separate jamabandis and other collection papers in respect of the previously notified shares and only a list of arrears that would become barred on the Tamadi day in the middle of April, 1950, in respect of "the notified portions not yet made over charge". This is clear from the notice (Ext. 1/p) dated the 22nd March, 1950, which defendant No. 2 served upon the plaintiff under Section 5 of the Act. In reply to this notice the plaintiff in his letter (Ext. 1/Z-II) dated the 27th March, 1950, addressed to defendant No. 2, recalled the various discussions which had taken place between him and the authorities ever since January, 1950, and repeated that his jamabandi papers were for his whole shares which he had offered to the Circle Officer, but which was refused on the ground that the jamabandi should be separated according to the shares notified. It was also mentioned therein, among other things, that:
"A decision was arrived at that it was not possible to separate the jamabandi within such a short time i.e., before six months but it was agreed upon that both of us would make the collection jointly and you agreed further that old Tahsildar would be appointed to make the collections and the amount so collected would be divided amongst us. It was decided also that you would enter appearance in the pending suits and join in execution cases etc. A draft of the terms was made over to you but you refused to put that in writing and it failed."
In this letter, the plaintiff also pointed out that the estate had already suffered and was still suffering loss "owing to the chaotic condition brought about by you and your mis-management of the whole thing".
23. It is unnecessary to refer to each and every correspondence that had passed between the parties on the subject. It is enough to state that upon the materials on the record it has been sufficiently proved that defendant No. 2 really took no steps to get a set of jamabandis prepared in respect of the notified portions of the estates and tenures, the management of which had vested in him. His own evidence shows that the entire collection season extending from January to the middle of April, 1950, passed away without any collection of rents and profits worth the name having been made by or on behalf of defendant No. 2. This was so in spite of the fact, as it appears from paragraph 27 of the written statement of defendant No. 1, that during the period of the defendants' management "the old staff and the employees of the plaintiff were retained as far as practicable and the books of accounts, material documents and the relevant papers for the management of the Estate were in charge of the staff also who continued in work". The Court below was, therefore, right in holding that it was on account of the notification of fractional shares of the plaintiff in two of his biggest Tauzis to which the attention of the defendants had been drawn at the earliest opportunity, that there was a dead-lock in the management of the plaintiff's property and defendant No. 2 was able to make a very poor collection of the rents and profits in respect of the estates and tenures which had vested in him, resulting in loss to the plaintiff, the responsibility for which lay with the defendants. Some of the agricultural income-tax assessment orders or notes (Exts. 14 series) which have been brought on the record, show that the gross collections of the plaintiff's estates and tenures ranged between Rs. 5,75,000/- and Rs. 9,00,000/- in a year, the bulk of which as deposed to by P. Ws. 1 and 2, used to be collected during the main collection season which extended from December to April. But in spite of being in charge of the management of the plaintiff's estate and tenures for almost the whole of the collection season, the defendants or their officers were able, as admitted by D. W. 2 in paragraph 56 of his deposition, to make a total collection of only Rs. 1,46,000/- and odd. The evidence of P. W. 2 which does not appear to have been specifically controverted is that at the time when the estate was taken over for management by the defendants, the rents and profits in arrear were to the tune of about Rs. 7,00,000/- and these arrears had further mounted up by Rs. 3,00,000/-to Rs. 4,00,000/- by the time the State had relinquished possession of the estate. By virtue of Section 4 (d) of the Act, the arrears of rents and profits in respect of the notified portions of the plaintiff's estate were payable to defendant No. 2, who was, therefore, under an obligation to take appropriate measures for their realisation and to ensure that no part of them became time-barred. But it is manifest that defendant No. 2 failed to discharge his responsibility in the matter by allowing the collection season to pass without taking necessary steps for realising the arrears of rents and profits.
24. It is true that at the time of the Tamadi season which was in the month of April, 1950, the defendants filed a large number of certificates in respect of the arrears of rents and profits due to the plaintiff's estate. According to the certificate clerk (D. W. 4), about 6,000 to 7,000 such certificates were filed, but a good number of them were dismissed. P. W. 2 has deposed that more than 4000 of such certificate cases were dismissed, mostly on the ground that they had been filed indiscriminately, either against wrong or dead persons or by giving wrong descriptions of property. According to P. W. 2, the loss caused to the plan-tiff's estate on account of the fling of defective certificate cases was to the extent of Rs. 1,00,000/-. The correspondences that had passed between the parties show that in regard to the arrears of rents and profits also, the attention of defendant No. 2 and other officers of the State had been pointedly drawn to the necessity of taking proper steps for the realisation of the arrears, well in advance of the approaching Tamadi day. But in spite of the admitted position that the bulk of the plaintiff's old staff was under the control of defendant No. 2, the plaintiff was called upon by the letter Ext. 1 fn) dated the nth March, 1950, to prepare a copy of the arrears list in respect of the un-notified portions of his estate. The letter Ext. 1 (o) dated the 15th March 1950 addressed by the plaintiff's Manager (P. W. 2) to defendant No. 2 shows that he had issued necessary directions to his Tahsildars to prepare such a list, inquiring at the same time as to whether the necessary certificate requisitions would be prepared by the plaintiff's Tahsildar or by the Government staff. But no serious action was taken by defendant No. 2 in the matter, as will appear from some of the subsequent correpondences, such as 'Exts. 1 (Z-11) and 1 (R), both dated the 27th March, 1950. Ultimately, the Collector by his letter Ext. 1 (T) dated the 1st April, 1950 intimated to the plaintiff that the Government had decided that the Manager (defendant No. 2) would file certificates only in respect of the notified portions of the estate before the Tamadi day and that in respect of his un-notified portions, the plaintiff was free to file rent suits in the Civil Court. This again involved the difficulties arising out of the fact that the plaintiff had a consolidated set of Jamabandis in respect of his shares and defendant No. 2 had no separate Jamabandi in respect of the notified portions of the estate to enable him to file the Tamadi certificates with correct particulars. It appears that it was on the basis of some arrears list submitted by the plaintiff to defendant No. 2 and without subjecting it to proper scrutiny, that a large number of certificate cases were hurriedly filed by the defendants at the time of the Tamadi in the middle of April, 1950, and, it was, therefore, not strange that quite a large number of them had subsequently to be struck off, with the result that a considerable portion of the arrears of rents and profits of the plaintiff's estate remained unrealised and became time-barred. It is manifest that the loss caused to the plaintiff's estate on this account was due to the inaction of defendant No. 1 amounting to wilful default and gross negligence on his part. The responsibility for such loss must undoubtedly lie with the defendants.
25. Defendant No. 1 also appears to have shown complete inaction with respect to some of the pending suits, and execution proceedings which had been commenced by the plaintiff prior to the vesting of the estates and tenures in defendant No. 1 which, by reason of Section 4 (e) read with Section 32 of the Act, it was incumbent upon him to continue. It was also incumbent upon defendant No. 2 to have instituted appropriate proceedings for the realisation of decrees for arrears of rents and profits which had previously been obtained by the plaintiff and which were on the point of becoming time-barred during the period of the defendants management. The materials on the record do not indicate that any serious step was taken by defendant No. 2 in this regard and, therefore, there is every probability that loss had been suffered by the plaintiff on account of the inaction of defendant No. 1 or his failure to continue the pending suits and proceedings and his wilful default and gross negligence in allowing the existing decrees to become time-barred.
26. In regard to the disbursements of moneys in respect of the plaintiff's estates and tenures that came to the hands of the Manager (defendant No. 2), the case sought to be made out by the plaintiff rests upon two grounds. The first is that after it was decided to relinquish the management of the plaintiff's estates and tenure and restore it to the plaintiff, and in any event, after the 6th July, 1950, when the two notifications under Section 3 (1) of the State Management Act were cancelled, the defendants had no authority whatsoever to make any expenditure of the moneys which were then in the hands of defendant No. 2, and, therefore, every items of money paid out after the 6th July, 1950, was unauthorised and unjustified in law. In other words the plaintiff is entitled to recover from the defendants the entire amount of the balance which was in the hands of defendant No. 2 on the 6th July, 1950. Secondly, the case of the plaintiff is that several items of expenditure were incurred by the defendants in utter disregard of the mandatory provisions of Section 25 (1) of the Act, in consequence of which loss was suffered by the plaintiff. So far as the first point is concerned, it is, in my opinion, not possible to accede to the claim of the plaintiff that he is entitled to recover the whole of the balance that was in the hands of defendant No. 2 on the 6th July, 1950. The learned Additional Subordinate Judge has rightly taken the view that in regard to such payments made by the defendants after the 6th July, 1950, as did not entail any loss to the plaintiff but were really for his benefit, such as the payment of Government revenue and cess amounting to Rs. 72,000/- and odd and Income-tax amounting to Rs. 4,533/-, the plaintiff can have no real grievance. It is against this part, of the decree of the Court below that the cross-objection filed by the plaintiff is directed, I am however, of the opinion that there is no substance in the cross-objection.
27. As regards the second branch of the plaintiff's case under this head, the principal item of loss which the plaintiff has suffered is the amount of Rs. 2,000/- which he had to pay byway of fine for the non-payment of agricultural income-tax. In view of the provisions of Clause (a) of Section 25 (1) of the State Management Act, read along with the explanation appended thereto, it is manifest that the payment of agricultural income-tax should have been made the first priority of disbursement on the same footing as the payment of Government revenue and cess and, therefore, the loss of Rs. 2,000/- caused to the plaintiff, as aforesaid, is directly attributable to the failure of the defendants to have followed the order of priorities mentioned in Section 25 (1) of the Act. No serious objection can, therefore, be taken to this part of the decree of the Court below.
28. The next item of this class is the sum of Rs. 43,507/- and odd deducted by the defendants under the head of costs of management. The plaintiff has calculated that this works out at about 30 per cent of the gross collection, According to D. W. 2, on the other hand, the correct percentage works out at 26-2 per cent. Relying upon the provisions of the Act to the effect that the maximum deduction permissible under this head is 25 per cent of the gross collections. D. W. 2 admitted in paragraph 26 of his deposition that the defendants are ready to refund to the plaintiff all amounts in excess of 25 per cent which had been deducted on account of collection charges under Government instructions. But the learned Additional Subordinate Judge has allowed a deduction of only 12 1/2 per cent on account of costs of management since, in his view, "the Act having no force of law cannot guide this Court in fixing 25 per cent as the permissible limit under this head". Since, however, the State Management Act has been found to be valid I see no reason why the deduction under this head should not be at the rate of 25 per cent of the gross collections. The direction made by the Court below must be modified in favour of the defendants to the extent just indicated.
29. In regard to other expenditures incurred by the defendants subsequent to the 6th July, 1950, a general direction has been given by the Court below to the effect that it would be for the commissioner to scrutinise the accounts and to determine how far the plaintiff's claim is admissible. In this connection Mr. S.N. Dutt drew our attention to the statement of accounts contained in Ext. O and pointed out that a sum of Rs. 1,40,000/- and odd was the credit balance in the hands of defendant No. 2 on the 15th July, 1950, whereafter certain more amounts had been received by him on account of the plaintiff's estate, but the expenses were incurred in such a manner that by the 21st, August 1950, only a sum of Rs. 62/- and odd was left in his hands which also was expended by him in September 1950. The contention of Mr. Dutt is that the expenses were hurriedly and indiscriminately incurred with mala fide motives so that not a single rupee may be left as surplus for being refunded to the plaintiff. The materials on the record, however, are wholly insufficient to enable the court to come to any definite conclusion in this regard and, therefore, the matter has rightly been left for scrutiny by the Commissioner. It has, however, been rightly contended by the learned Government Advocate that whatever expenditures may have been incurred by defendant No. 2 subsequent to the release of the estate to the plaintiff in pursuance of obligations previously incurred by defendant No. 2 during the period of his management, can not be recovered by the plaintiff from the defendants. The Commissioner who will be appointed to scrutinise the accounts will, therefore, give credit to the defendants for expenditures of such, items, in regard to which obligations were incurred by the defendants prior to the 6th July, 1930.
30. It is necessary, however, to consider certain questions bearing upon the maintainability find scope of the suit which have been raised by the learned Government Advocate. It is contended that in view of certain provisions of the state management Act, the suit is not maintainable at all. Relying upon Section 27 of the Act, it is urged that the remedy of the plaintiff lay in preferring an appeal to the appropriate authority against orders passed by the Manager (defendant No. 2) under the Act and that no order of the manager is liable to be questioned in any Court. Reliance has also been placed upon Sections 30 and 31 of the Act. The latter part of Section 30 provides that :
". . . .it shall not be lawful for any court to pass any order or do any thing which may in any way interfere or have the effect of interfering with such management by the Provincial Government."
Section 31 of the Act may be quoted in full since both sides seek to rely upon its provisions. It reads ;
"No suit or other legal proceeding shall lie in any court against the Crown or any servant of the Crown or against any person acting under the orders of a servant of the Crown for, or on account of, or in respect of, any thing done or purporting to be done in good faith under this Act or in respect of any alleged neglect or omission to perform any duty devolving on the Provincial Government or any of the officers subordinate to it and acting under this act, or in respect of the exercise of, or the failure to exercise, any power conferred by this Act on the provincial Government or any officer subordinate to it and acting under this Act, except for the loss or the misapplication occasioned by the wilful default or gross negligence of any officer of the provincial Government.''
31. In my opinion, Sections 27 and 30 are not relevant to the present purposes. In this suit we are not concerned with any order passed by the Manager (defendant No. 2) acting under the provisions of the Act. No question also arises of doing any thing by the Court which might in anyway interfere or have the effect of interfering with the management by the defendants. Such management has long erased and whatever decree is passed in the present suit, can in no way interfere with the management by the defendants. It is only Section 31 of the Act that is relevant to the present discussion, but upon a careful examination of its provision, I am clearly of the opinion that the bar imposed by it upon the jurisdiction of the Civil Court is of a limited character. A civil suit is barred only in respect of acts or things done in good faith as also in case of mere neglect or omission to perform any of the statutory duties imposed upon the provincial Government or its officers acting under the provisions of the Act. But the right of suit is expressly saved where such neglect or omission to perform any of the statutory duties amounts 1o wilful default or gross negligence on the part of any of the officers of the provincial Government, whereby loss has been suffered by the plaintiff or there has been misapplication of the moneys belonging to his estate. In this view I am fortified by the provisions of Section 23, Clause (e) of which specifically makes the Manager responsible for any loss occasioned to the property entrusted to him for management, where such loss is caused by his wilful default or gross negligence. I am, therefore, unable to uphold the contention of the learned Government Advocate that the suit is entirely barred. In my opinion, the plaintiff's right of suit is not barred in respect of such loss or losses caused to him as may be attributed to the wilful default or gross negligence of the defendants, in general, and of defendant No. 2, in particular.
32. It was next contended by the learned Government advocate that even if loss may have been caused to the plaintiff on account of wilful default or gross negligence of the Manager (defendant No. 2), the liability for such loss must be the personal liability of defendant No. 2 and the same can not be saddled upon, defendant No. 1. It was urged that the ordinary rule of vicarious liability of the master for wrong done to a third party by the servant can not be applied to a case where the master is the State acting under the law through its officers in exorcise of his sovereign powers. In support of his contention, the learned Government advocate relied upon a Bench decision of this court in District Board of Bhagalpore v. The Province of Bihar, AIR 1954 Pat 529. In that case the District Board sued the State of Bihar for loss caused to it by the negligence of the officers of the Government Treasury in making payments out of the District Fund on the basis of forged cheques. The District Fund though vested in the District Board was lodged with the Collector in the District Treasury and payments out of the fund had to be made by the Treasury authorities on the basis of cheques duly signed by the chairman, of the Board. It was held that the duty which the Treasury officers had to perform in regard to the Fund was imposed by law and not by the will of their employer, the State, which in consequence was not liable for the wrong done by its agent in such employment. It was further held, repelling the contention of the plaintiff, that the Government Treasury was not a Bank and in maintaining the Treasury, the State had not engaged itself in a business of commercial nature, but was performing an act essential for the maintenance of the State, and as such it was an act in the exercise of its sovereign power simpliciter. It will, however, be noticed that their Lordships did not lay down any general proposition that in all cases where the State is acting in exercise of its sovereign powers, it is immune from vicarious liability for wrong done by its servants. On the other hand, their Lordships recognised that the question depends upon the true nature of the Government powers in relation to the transaction in which the loss occurs.
33. In other words, for applying the rule of vicarious liability in relation to the State, a distinction must be made between acts of State or acts which are done by the State in exercise of what are known as its police powers, and other acts which do not fall within that category. In regard to acts of State properly so called, such as making a treaty, commandeering private property for war purposes or quelling internal disturbances by force, it may be conceded that any wrong June to the person or property of a private individual does not normally afford a cause of action for compensation against the state. But in regard to another class of Governmental acts which, for instances, involve detention by the State of land, goods or chattels belonging to the private individual, as also acts of mercantile or commercial nature, undertaken as measure of social welfare or social control, the State can not claim absolute immunity from the application of the principle of vicarious liability of the master for the wrongful act of its servants. In AIR 1954 Pat 529, their Lordships have not departed from this principle, but have referred to A number of reported decisions in which such a distinction was emphasised. For example, in Maharaj Bose v. Governor General in Council, AIR 1952 Cal 242 it was pointed out that there is a clear distinction between acts done by the Crown in pursuance of ventures which a private individual might undertake equally well and. acts done in exercise of Governmental powers which could not be lawfully exercised save by the sovereign authority or persons to whom the sovereign authority might delegate such powers. In my opinion, the instant case is one of the first of these two categories and to it the rule of vicarious liability of the master for the wrong done by its servant must apply.
34. In State of Rajasthan v. Mt. Vidhyawati, AIR 1962 SC 933, it was observed by Sinha, C. J. that the old notion of immunity of the crown in the United Kingdom against tortious acts committed by its servants within the scope of their employment and functioning as such has never operated in India, and now under our present Constitution, one of the objectives of which is to establish a socialistic State, with its varied industrial and other activities, employing a large army of servants. "There is no justification in principle, or in public interest, that the State should not be held liable vicariously for the tortious acts of its servant".
35. Besides, in the present case, there is no scope for the argument advanced by the learned Government Advocate, because there are clear averments in the written statement of defendant No. 1, which show that defendant No. 1 ratified every action or inaction of defendant No. 2 and took full responsibility for the same. In particular, it was stated in paragraph 15 of the written statement that "defendant No. 2 acted in pursuance of the directions received from time to time from defendant No. 1". The evidence of D.W. 2 in paragraphs 11, 12, 16, 26, 62 and 69 points to the same conclusion. It was nowhere the stand of defendant No. 1 in the trial Court that defendant No. 2 was personally liable for whatever loss may have been caused to the plaintiff. In Chetandas Gulabchand v. The State of Bihar, AIR 7958 Pat 512, decided by my learned brother sitting with S.C. Prasad, J., the State had ratified certain action of the Additional District Magistrate of Saharsa in the matter of requisition and acquisition of the property of the plaintiff under Rule 75-A of the Defence of India Rules, 1939. In point of fact, it was held that the seizure was not wrongful and as such not tortious. That it was observed by my learned brother in that case that had the seizure been found to be tortious, he would have held the State 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". I would, therefore, overrule the contention of the learned Government Advocate.
36. Finally, it was urged by the learned Government Advocate that in relation to the estates and tenures of the plaintiff, the State had exercised its powers under a statute and no liability can attach, to it for doing something which the legislature had authorised it to do even though this might entail damage to anyone. In my opinion, the true rule which governs such class of cases was laid down by the House of Lords in Geddis v. Bann Reservoir, Co., (1878) 3 AC 430. There, certain persons were incorporated by an Act of Parliament for the purpose of securing a regular supply of water to mill-owners. These persons erected a reservoir, collected the water of different streams and diverted them through the channel which they were authorised to use. They, however, neglected to cleanse the channel, with the result that it sometimes over-flowed its bank and caused damage to the lands of the adjoining proprietors. It was held by the House of Lords that where the legislature has authorised certain persons to effect a certain purpose, and has given them the necessary powers to effect it, they may exercise those powers to their full extent, without incurring any liability, but in doing so, they must not occasion any needless injury to anyone. At page 455, the following observation was made by Lord Blackburn:
"For 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 action does lie for doing that which the legislature has authorized, if it be done negligently. And I think that if by a reasonable exercise of the powers, either given by statute to the promoters, or which they have at common law, the damage could be prevented it is, within this rule "negligence" not to make such reasonable exercise of their powers." Provender Millers (Winchester) Ltd. v. Southampton County Council, (1940) 1 Ch 131, was a case where a public authority pursuant to their statutory duties in respect of bridges and highways had inserted a new culvert in a stream to give extra support to a highway passing over the stream and did some other work also to prevent flooding of the highway at certain times of the year. As a result of this work, they diminished the natural flow of the river, thereby causing injuries to owners of a mill by preventing sufficient water to supply the necessary water power from reaching the mill. It was held :
(i) that the public authority had no defence to the claim of the owners of the mill to relief in view of the fact that in doing their work the public authority had altered the bed of the stream under the culvert and had entirely changed the bed of one branch of the stream which formerly was united with the other branch above the culvert;
(ii) that unless it was not practically feasible to perform their statutory obligations in any other way, the public authority were not entitled, by virtue of those obligations, to invade the right of others; and,
(iii) that the onus of proving that their obligations could not be performed in any other manner, lay on the public authority.
37. The rule of English law laid down in the aforesaid decisions has been uniformly followed in this country. In this Court, in particular, it was held by a Division Bench in Ramchandraram Nagaram Rice and Oil Mills Ltd., Gaya v.
Municipal Commrs. of Purulia Municipality, AIR 1943 Pat 408 that the principle of law that is deducible from the decided cases is, that if a per son is exercising his rights under statute, he is not liable unless it is proved that he acted unreasonably or negligently. It seems to me that it is really this principle which has been incorporated in the concluding portion of Section 31 of the State Management Act, where a right of suit has been expressly saved in case of loss or misapplication occasioned by the wilful default or gross negligence of any officer of the Provincial Government. I am, therefore, unable to absolve defendant No. 1 from liability for the loss caused to the plaintiff by the wilful default, gross negligence or mis-application on the part of defendant No. 2 in relation to the estates and tenures of the plaintiff as found above. I am satisfied, on the contrary, that the course of management of plaintiff's estate indicates gross negligence, if not wilful default, on the part of the defendant No. 2, the Additional Collector of Purnea, and his staff, although the position regarding collection of rent etc. and the difficulties and considerations incidental thereto were explained to him in a series of letters Exts. 1 (a), 1 (Z-7) and B referred to above.
38. For the reasons which I have given, I am of the opinion that the decision of the Court below is substantially correct and that no ground has been made out for interfering with the decree that has been passed in favour of the plaintiff. The appeal fails and it is accordingly dismissed) with modification in the matter of costs of management as indicated above. The cross-objection filed by the plaintiff is also dismissed. In the circumstances of this case, there will be no order for costs in this Court.
Misra, J.
39. I agree.