Andhra HC (Pre-Telangana)
Pagadala Narasimham vs The Commissioner And Special Officer, ... on 21 July, 1993
Equivalent citations: 1995ACJ741, AIR1994AP21
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
JUDGMENT
1. The unsuccessful plaintiff is the appellant in this appeal. The suit was filed by the plaintiff as an indigent person. The said suit O.S. No. 30/ 80 (on the file of the Additional District Judge, Nellore) was filed claiming damages of Rs. 50,000/- against the defendants 1 and 2 viz., the Commissioner and Special Officer of Nellore Municipality and the Superintendent of Police, Nellore. The 3rd defendant, viz., the Nellore Finance Corporation was impleaded later on and it is not a party in this appeal. The suit was filed on the allegations that the plaintiff was the owner of the Bus APA 8230, and while it was kept for repairs near the work-shop at Santi Reddy Road, Nellore, the Municipal and the police officials, removed the same on the evening of 14-7-76 on the ground that it was causing obstruction on the public road and kept it in the compound of the Collectorate building near Additional Judicial First Class Magistrate's Court. It is the case of the plaintiff that when he approached the municipal officials for the release of the vehicle they advised him to contact the traffic police officials and when he approached the concerned Police Station, he was directed to contact the municipal authorities. No case filed and therefore he had no opportunity to get the vehicle released from the Court. The Regional Transport Authority cancelled the permit on 13-4-77 in view of his inability to put the bus on the route. The bus was under hire purchase agreement with the 3rd defendant-Corporation. The 3rd defendant who is the financer of the bus impleaded only and got the vehicle auctioned for Rs. 10,920/-. The plaintiff estimated the damages caused on account of the illegal seizure and detention of the bus at Rs. 50,000/- on various counts. The defendants have taken the stand that the suit itself was not maintainable for failure to implead the proper parties. The 1st defendant-municipality had denied the seizure of the vehicle. The Municipality contended that on the request of the Town Traffic Sub-Inspector, the municipal tractor and coolies were sent for assisting him in the removal of the vehicles which were causing obstruction on the public road. The 1st defendant denied that any petition was filed or representation made by the plaintiff for the release of the vehicle. The 2nd defendant denied the knowledge of removal of the plaintiffs bus on 14-7-76. He went to the extent of denying the factum of giving assistance by the Municipality in connection with the removal of the vehicle. He also denied that the plaintiff approached No. 1 Town Police Station for the release of the vehicle. The 2nd defendant went on to say in the written statement that the municipal authorities appear to have removed the vehicle as it was causing inconvenience to the public. It was kept in the premises of the Collector's office near the Magistrate's Court. It was not seized by any authority whatsoever. It was merely removed from the public road as it was an obstruction to the traffic and the same was kept at the Collector's office building. The plaintiff was always at liberty to take custody of the said vehicle. The 2nd defendant denied that any request was made by the traffic Sub-Inspector to the municipal authorities to send the vehicles and workers for the removal of obstructions. The 2nd defendant then blamed the plaintiff for not taking necessary steps for the release of the vehicle and allowing it to remain in the Collector's office compound for such a long time. He also contended that in the absence of notice under S. 53 of the A.P. (Andhra Area) District Police Act, the suit was not maintainable. It was also contended that the suit for damages against the police officials who discharging soverign functions of the State was not maintainable.
2. The learned Additional District Judge, on a consideration of the evidence and the probabilities, gave the following findings : (1) The suit is not maintainable against the 1st defendant and the suit should have been filed against the Municipal Council, Nellore, represented by the Commissioner and Special Officer, Nellore. (2) The suit is not maintainable against the 2nd defendant as well in view of the provisions of Sections 79 and 80, C.P.C. If a suit has to be filed alleging tortious act against the police officials in the course of discharge of their duties and for recovery of damages, the State of Andhra Pradesh should have been impleaded as a necessary party. Similarly, a notice under S. 80, C.P.C. should also have been issued to the State of Andhra Pradesh. The Superintendent of Police cannot therefore be sued for the tortious acts if any of his subordinates. (3) The removal of bus causing obstruction to traffic, by the police or even by the employees of the municipality cannot be regarded as a wrongful act or an act committed in excess of their powers and functions. (4) The bus was removed by the traffic police with the help of the municipal employees on their own accord. When the bus was removed, there was no engine to the bus and it was not in working condition. (5) The plaintiff was not the owner of the bus but he was hirer having possession of the vehicle. (6) The plaintiff did not take any effective steps for getting back the vehicle knowing fully well that it was kept in the compound of the Collector, exposed to sun and rain. It was only on 6-5-77 the plaintiff gave Ex.A-1 notice to the 1st defendant. (7) The suit for damages either against the Superintendent of Police-2nd defendant or even against the State of Andhra Pradesh is not maintainable inasmuch as the alleged tortious act was committed in discharge of statutory functions traceable to the sovereign power of the State. The suit for damages was therefore dismissed.
3. The learned counsel for the appellant Smt. Jayasree Samathy, has contended that the lower Court fell into an error in dismissing the suit on technical grounds such as that the correct description of the defendant-municipality was not given. The learned counsel further contended that the 1st and the 2nd defendants went on shifting the responsibility to each other and the 2nd defendant came forward with evasive written statement. She has also brought to my notice that an application in C.M.P. No. 10890/83 was filed to change the case-title of the 1st respondent as "Nellore Municipal Council represented by the Special Officer". She submitted that in view of the failure of the 1st and 2nd defendants in (sic) filing a case in the Court and unauthorisedly detaining the vehicle loss was caused to the plaintiff and it is a fit case where damages should be awarded. She also contended that the mere fact that the vehicle was under hire purchase agreement and the position of the plaintiff was that of a hirer and that the bus was not in working condition at that point of time, are not relevant circumstances which should have been taken into account.
4. I do not think (sic) can uphold the contentions of the learned counsel for the appellant. Apart from any thing else, there is one formidable obsticle in the way of the piaintiff-appellant. The finding of the lower Court is that the traffic police removed the vehicle as it was kept on the public road causing obstruction to the traffic. According to the learned Additional District Judge the municipal employees have only played secondary role in extending their help to the police. For arriving at this finding the lower Court relied upon various circumstances and probabilities. These are : (1) A charge-sheet was filed by the police against a driver of the lorry which vehicle was kept behind the bus. (2) D.W. 2 the traffic Sub-Inspector's version that no prosecution could be launched against the driver of the bus as he could not know the number of the bus, and the name of the owner, was unconvincing. (3) There is nothing unnatural in the contention of the 1st defendant that the traffic police in order to remove the vehicles kept on the public road requested the Commissioner to send some workers and tractor for removing them. (4) Had the bus been removed by the Municipality on its initiation, the bus would have been taken to its own premises but not to the premises of the Collectorate compound. In arriving at all these findings, the learned Judge considered the evidence of P.Ws. 1 and 2 though a feeble attempt has been made to challenge these findings, I do not see any substantial ground to upset the finding reached by the lower Court. I would like to add that even the vague and evasive written statement filed by D2 would give an indication that it was the traffic police that took the initiation to remove the vehicle by taking the help of the Municipality. It is unfortunate, as rightly observed by the learned Additional District Judge, that the 2nd defendant who filed a written statement, making a bald denial of everything and shifting the responsibility to the municipal officials. But the fact remains that the vehicle which was stood on the public road was causing obstruction to the traffic. The police assisted by the municipal employees were therefore legally justified in removing the vehicle. If on account of subsequent inaction in filing the, cause or in detaining the vehicle in the Collectorate compound, the plaintiff was aggrieved, he could have taken effective steps for seeking release of the vehicle. Excepting the oral assertion on the part of the plaintiff, there is no evidence of making a representation or approaching the authorities for the release of the vehicle. Probably it suited the plaintiff to allow the vehicle to remain in the custody of the police officials, though it is not possible to give a definite finding on this aspect. Be that as it may, if the plaintiffs bus was wrongly detained by the police, the proper course if at all open to the plaintiff was to sue against the State of Andhra Pradesh represented by the Secretary to Government or the District Collector, as the case may be. The procedure contemplated by Sec. 79 of the Civil Procedure Code has been given a gobye in the instant case. Even the notice under S. 80, C.P.C. was not sent to the authorities as contemplated under S. 80, C.P.C. but it was sent to the 2nd defendant. Even on the admitted or at any rate, undisputed facts, the alleged wrongful act done by the subordinates of the 2nd defendant was in the discharge of Itheir official duties traceable to the sovereign functions of the State. If any pecuniary liability has to be fastened in relation to such act and the amount has to be recovered, it could only be from the State of Andhra Pradesh. No decree can be passed or enforced against the Superintendent of Police. As rightly observed by the lower Court, the Superintendent of Police is not the authority responsible for the payment of damages for the wrongful acts, if any, done by his subordinates in the discharge of their statutory or official duties. It was held by the Supreme Court in State of Kerala v. G. M. Southern Railway, , that a suit for compensation for the non-delivery or damage to goods entrusted to Railway Administration could only be laid against the Union of India and not against the Zonal Railway though it is a unit of the Central Government. The Supreme Court referred to provisions of Ss. 79 and 80, C.P.C. and Article 300 of the Constitution. The ratio of the said judgment fully applies to the present case. The failure to bring the suit against the State of Andhra Pradesh is fatal to the case and even assuming that the damages were recoverable by reason of the alleged illegal act committed by the subordinates of the 2nd defendant, such claim could only be made against the State of Andhra Pradesh after issuing due notice required by S. 80, C.P.C. This mandatory and fundamental requirement has not been satisfied in the instant case. The lower Court is, therefore, justified in dismissing the suit. I see no merit in the appeal and it is accordingly dismissed. In the circumstances of the case, especially in view of the unreasonable stand taken by the 2nd defendant, I make no order as to costs.
5. Appeal dismissed.