1. Heard Sri Ashok Kumar, learned counsel for petitioners and Sri C.B. Tripathi, learned Standing Counsel for respondents.
2. Grievance of petitioner is that respondent-3 intercepted petitioner''s vehicle, i.e., Truck No. RG-01 GB-5544 carrying certain goods at National Highway-24 and asked petitioner-2 to hand over all documents relating to goods. The documents available with petitioner- 2 were handed over to which respondent-3 alleged that there are certain discrepancies and therefore seized the goods along with vehicle on 03.10.2014 despite request of Driver to unload the goods and release vehicle. However, without any power or authority of seizure of vehicle and without seizing the vehicle with due process of law, respondent-3 illegally detained vehicle for more than 25 days and thereafter lodged report bearing Case Crime No. 1755 dated 31.10.2014 under Section 420, 120B, 467, 468, 470, 471 and 472 I.P.C. at Police Indirapuram but vehicle in question was not handed over to Police but remained under custody of respondent-3. It is only when all these facts were brought to the notice of this Court and this Court passed following order on 22.1.2015, vehicle in question was released:
"Sri C.B. Tripathi, the learned Special Counsel for the State has received instructions indicating that the vehicle has been detained on the instructions of the Investigating Officer pursuant to the lodging of an FIR and on that ground, the vehicle has not been released in favour of the petitioner.
The learned Special Counsel further submitted that appropriate orders may be passed by the Court for release of the vehicle forthwith. The learned Special Counsel further stated that a short time may be given to file a counter affidavit to bring all these facts on record.
The law is settled, namely, that the commercial tax authorities cannot detain and seize the vehicle under the Act. Such detention of the vehicle for over 3 and a 1/2 months is prima facie without any sanction of law. We further find that the police authorities has not been seized the truck under any provision of the criminal law pursuant to the lodging of an FIR against the petitioner. In that event, the commercial tax authorities had no justification to detain the truck in question.
Consequently, we are of the opinion that heavy cost/compensation is to be awarded to the petitioner, which will be recovered from the erring officials of the commercial tax department.
For this limited purpose the respondents may file a counter affidavit within a week.
List on 29th January, 2015.
In the meanwhile, we direct that the Vehicle No. RJ0 1 GB 5544 detained by the Assistant Commissioner, Commercial Tax, Mobile Squad Unit No.2-respondent no.3 shall be released forthwith.
Certified copy of this order shall be made available to the learned counsel for the petitioner on payment of usual charges today itself."
3. Today, learned counsel appearing for respondents could not dispute that under the Statute, Tax authorities can seize goods but there is no power for seizure of vehicle. He also could not explain as to how respondent-3 could detain vehicle from 03.10.2014 to 31.10.2014, when for the first time, first information report was lodged and even thereafter when Police did not take custody of vehicle why the vehicle remain to be detained by respondent-3.
4. Petitioner claimed that vehicle has been financed by Bank and petitioner has been incurring continuous liability but on account of wholly illegal, unauthorized and arbitrary action on the part of respondent-3, said vehicle remained detained with respondent-3 for almost three months causing huge loss to petitioner. It could not ply for all this period only because of the high handedness of respondent- 3.
5. Since it is not in dispute that respondent-3 had no authority to seize vehicle in question, we are satisfied that detention of vehicle on 03.10.2014 by respondent 3 and thereafter was wholly illegal, unauthorized and without jurisdiction. This has caused avoidable loss to petitioner only for illegal act of respondent-3.
6. Respondent-3 being a Public Servant and holder of a civil post exercising certain authority under Tax statute, is supposed to act strictly in accordance with law and not to act arbitrarily, to satisfy his own ego or harass a common man. A Government official holding a high position is under a duty and obligation to ensure that a citizen and a common man is actually served by him since he is representing a welfare State instead of causing harassment in one or the other way. Nobody holding howsoever high Office can treat law on to himself so as to act in any manner which is irrational, unreasonable and even unconstitutional. It is really surprising as to how respondent-3, when lacked any authority to seize and detain vehicle in question, continued to do so. When this Court made certain observations, respondent-3 immediately released vehicle which shows that there was no justification or valid cause for such detention. Thus unauthorized act on the part of respondent-3 is illegal, besides socially and morally obnoxious, for the reason that it has resulted in causing huge burden upon petitioner-owner of vehicle not only to continue to incur liability of interest etc. on the loan it has taken for purchase of vehicle, but also to suffer loss of income which petitioner could have earned while plying the vehicle during this period and for this loss if anyone is responsible, he is only respondent-3.
7. The respondents being "State" under Article 12 of the Constitution of India, its officers are public functionaries. In our Constitution, sovereignty vest in the people. Every limb of constitutional machinery therefore is obliged to be people oriented. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour. It is high time that this Court should remind respondents that they are expected to perform in a more responsible and reasonable manner so as not to cause undue and avoidable harassment to the public at large. Respondents have support of entire machinery and various powers of statute. An ordinary citizen or a common man is hardly equipped to match such might of State or its instrumentalities. Harassment of a common man by public authorities is socially abhorring and legally impressible. This may harm the common man personally but the injury to society is far more grievous. Crime and corruption, thrive and prosper in society due to lack of public resistance. An ordinary citizen instead of complaining and fighting, mostly succumbs to the pressure of undesirable functioning in offices instead of standing against it. It is on account of, sometimes, lack of resources or unmatched status which gives feeling of helplessness to a common man. Nothing is more damaging than the feeling of helplessness. Even in ordinary matters a common man who has neither political backing nor financial strength to match inaction in public oriented departments, gets frustrated and it erodes credibility in the system. This is unfortunate that matters which require immediate attention are allowed to linger on and remain unattended. No authority can allow itself to act in a manner which is arbitrary. Public administration no doubt involves a vast amount of administrative discretion which shields action of administrative authority but where it is found that the exercise of power is capricious or other than bona fide, it is the duty of Court to take effective steps and rise to occasion otherwise confidence of common man is likely to be shaken. It is the responsibility of Court, in such matters, to immediately rescue such common man so that he may have the confidence that he is not helpless but a bigger authority is there to take care of him and to restrain arbitrary and arrogant, unlawful action/inaction or illegal exercise of power on the part of public functionaries.
8. In our system, Constitution is supreme, but the real power vests in the people of India. Constitution has been enacted "for the people, by the people and of the people". A public functionary cannot be permitted to act like a dictator causing harassment to a common man.
9. Echoing harassment, a common man suffers, and most of times silently, having no capacity to counter or protest, Court in Lucknow Development Authority v. M.K. Gupta JT 1993 (6) SC 307, referring to observations of Lord Hailsham in Cassell & Co. Ltd. v. Broome, 1972 AC 1027 and Lord Devlin in Rooks v. Barnard and others 1964 AC 1129, said as under:
"An Ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law....... A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it...........Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous." (para 10)
10. Said observations have been reiterated and followed in a subsequent judgment in Ghaziabad Development Authority v. Balbir Singh JT 2004 (5) SC 17.
11. In a democratic system governed by rule of law, Government does not mean a lax Government. The public servants hold their offices in trust and are expected to perform with due diligence particularly so that their action or inaction may not cause any undue hardship and harassment to a common man. Whenever it comes to the notice of this Court that Government or its officials have acted with gross negligence and unmindful action causing harassment of a common and helpless man, this Court has and never would be a silent spectator but always react to bring authorities within rule book or to make them accountable.
12. In Registered Society v. Union of India and Others (1996) 6 SCC 530, court said:
"No public servant can say "you may set aside an order on the ground of mala fide but you can not hold me personally liable" No public servant can arrogate in himself the power to act in a manner which is arbitrary".
13. In Shivsagar Tiwari v. Union of India (1996) 6 SCC 558, Court has held:
"An arbitrary system indeed must always be a corrupt one. There never was a man who thought he had no law but his own will who did not soon find that he had no end but his own profit."
14. In Delhi Development Authority v. Skipper Construction and Another AIR 1996 SC 715 Court has held as follows:
"A democratic Government does not mean a lax Government. The rules of procedure and/or principles of natural justice are not meant to enable the guilty to delay and defeat the just retribution. The wheel of justice may appear to grind slowly but it is duty of all of us to ensure that they do grind steadily and grind well and truly. The justice system cannot be allowed to become soft, supine and spineless."
15. In the present case also, we find, when a vehicle like a Truck of petitioner is stopped by an Officer of Government, whether in Tax department of elsewhere, without any authority on the spot, the person present on the site finds it difficult, how to protect its rights. The dilemma and helplessness of petitioner is writ large. It has suffered illegal detention of vehicle by respondent-3 for more than two months. Thereafter finding no other way, invoked extraordinary equitable jurisdiction of this Court. If these activities are not taken seriously and ignored, may encourage others to perpetuate such activities of illegal detention and would give them an opportunity to negotiate with sufferer(s) to either part away some illegal consideration for release of vehicle else continue to suffer. The attitude and action on the part of respondent-3 in detention of vehicle is nothing but a blatant example of dishonest and corrupt act on the part of a Government servant. The public authorities like respondent-3 find various ways in depriving common man of his simple right of speech, movement, business, profession etc. and time and again create obstruction knowing it well that an option of litigation, in the present scenario, is a much more costly, time consuming and difficult process which will deter sufferer from availing such option of knocking doors of justice and instead doers of wrong would be successful in negotiating terms in an illegal manner with sufferer. We can not be oblivious of these practices and activities and illegal deprivation on the part of officials having authority and in the garb of such authority harassing public by illegal demonstration of such authority.
16. Looking into entire facts and circumstances, we are satisfied that here is a case where petitioner deserves to be compensated by respondent-3 with an exemplary cost which is compensatory as also an illustration of preventative measure against recurrence of such activities on the part of respondents.
17. We, therefore dispose of this writ petition with cost of Rs. 2 lacs which shall be paid at the first instance by respondent-1 since respondent-3 is the official and agent of respondent-1, but it shall have liberty to recover such amount from authority concerned who is responsible for such illegal action of detention of petitioner''s vehicle on 03.10.2014 and onwards.
18. Besides, we also direct respondent-1 to look into the matter and take appropriate disciplinary action against concerned Officer who had indulged in such an illegal activity and pass appropriate order by completing disciplinary proceeding within a period of three months.
19. A compliance report shall be submitted by respondent-1 within four months through an affidavit of respondent-1.
