Patna High Court
Union Of India (Uoi) vs Dhansar Coal Co. Ltd. on 6 January, 1959
Equivalent citations: AIR1959PAT347, AIR 1959 PATNA 347
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT
1. In the suit which is the subject-matter of this appeal the plaintiff prayed for recovery of a sum of Rs. 838/- on account of the price of 21 tons and 7 cwt. of hard coke supplied to the Craig jute Mills, Kankinara, which belongs to the Military Department of the Government of India. It appears that a sanction for the supply of the hard coke was granted by the Deputy Coal Commissioner of Calcutta on 7-3-1949, and in accordance with that sanction the plaintiff despatched one wagon of hard coke weighing 21 tons and odd to No. 1 Engineering Equipment Works, I.E.M.E. Craig Jute Mills, Kankinara. As the bill for the price of the coke was not paid, the plaintiff entered into correspondence with the Controller of Army Factory Accounts and learnt that the consignment of coke was rejected as it was not up to the specification. It appears that the Deputy Coal Commissioner, Calcutta, directed the Deputy Director of Fuels, Calcutta, to arrange for the disposal of the coke in question and for payment of the price realised by the sale to the plaintiff.
The suit was contested by the defendant, the Union of India on the ground that the coke was rejected because it was not up to the specification mentioned in the contract and the plaintiff was not entitled to recover any amount for the supply of that coke. In the written statement it was mentioned that the coke was still lying at Kankinara at the Engineering Equipment Works at the risk of the plaintiff and that the disposal of that coke was stayed because the plaintiff had instituted the suit. Both the lower Courts have come to the finding that the coke supplied was not up to the specification but granted a decree to the plaintiff for a sum of Rs. 378/- only with proportionate costs because there was an order of the Deputy Coal Commissioner to dispose of the coal and the liability arose under Section 70 of the Indian Contract Act.
2. In support of this appeal two arguments have been submitted on behalf of the appellant, the Union of India. It was contended in the first place that Section 70 of the Contract Act has no application to the present case and the matter is governed by Rule 10-A (1) of the Colliery Control Order, 1945, which runs as follows :
"10-A (1). The Coal Commissioner with the Government of India may, by order in writing direct, that any coal despatched by any colliery owner or a person acting on behalf of a colliery owner, to any person, which is in transit, shall subject to such terms and conditions, if any, as the said Coal Commissioner deems fit, be diverted and delivered to another person specified in the order.
Explanation: For the purposes of this clause coal shall be deemed to be in transit from the time when it is delivered to a carrier or other bailee for transmission to the consignee thereof and until the consignee or his agent has taken actual delivery of the entire quantity of coal from such carrier or other bailee."
It is necessary also in this connection to reproduce Rule 8 of the Colliery Control Order :
"8. The Central Government may, from time to time, issue such directions as it thinks fit to any colliery owner regulating the disposal of his stocks of coal or of the expected output of coal in the colliery during any period, including directions as to the grade, size and quantity of coal which may be disposed of and person or class or description of persons to whom coal shall or shall not be disposed of the order of priority to be observed in such disposal, and the stacking of coal on Government account."
Section 70 of the Indian Contract Act is in the following terms :
"70. Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered."
3. In our opinion, the present case is governed not by Section 70 of the Indian Contract Act but by the statutory provisions contained in Rule 8 and Rule 10A(1) of the Colliery Control Order. The order of disposal made by the Deputy Coal Commissioner with regard to the amount of coke is an order passed by him under Rule 8 read with Rule 10A(1) of the Colliery Control Order, 1945. In other words, the order of the Deputy Coal Commissioner is an order made in exercise of the statutory power and, therefore, the plaintiff cannot base its cause of action on Section 70 of the Indian Contract Act, The view of the lower appellate court on this point is incorrect and must be overruled. In our opinion, the suit of the plaintiff must fail and the plaintiff is not entitled to recover any amount as damages from the defendant, the Union of India.
4. There is also another reason why the suit of the plaintiff must be dismissed. Assuming for a moment that the Coal Commissioner has acted in excess of his powers under the Colliery Control Order, 1945; the proper person whom the plaintiff must have sued is the Deputy Coal Commissioner and not the Union of India. The doctrine of respondent superior does not apply to this case and the Government of India cannot be made liable as the superior authority to the Deputy Coal Commissioner, because the latter is acting in exercise of his statutory powers, and in exercise of his statutory powers he is not acting under the control or order of the Government of India.
This view is supported by the decision of this High Court in District Board of Bhagalpur v. Province of Bihar, AIR 1954 Pat 529 where it was pointed out that where the duty to be performed is imposed by law and not by the will of the employer, the employer is not liable for the wrong done by the agent in the course of such employment. For this reason also we think that the suit of the plaintiff is liable to be dismissed and the Union of India cannot be held liable even if there was any default on the part of the Coal Commissioner or the Deputy Coal Commissioner. For these reasons we hold that the suit of the plaintiff must be dismissed.
5. We accordingly allow this appeal, set aside the decree of both the lower courts and order that the suit of the plaintiff be dismissed. Parties will bear their own costs throughout.