UNION OF INDIA Vs. A L SIVAGAMI

JUDGEMENT

(1.) THIS appeal has been preferred against the decree and Judgment in O.S.No.37 of 1990 on the file of Additional District Court, Pondicherry at Karaikal. The defendants in the suit are the appellants in this appeal.

(2.) THE case of the plaintiffs in plaint in brief are as follows: THE plaintiffs are carrying on retail trade in India Made Foreign Liquor under retail licence granted by the Excise Department, Pondicherry. THE licence was originally granted in the name of one Sivasubramanian. Sivasubramanian was in difficult financial circumstances and he offered to take the plaintiffs as partners in trade. Accordingly, the plaintiffs became partners with the said Sivasubramanian and the business was carried on under the name and style of "Star Wines" at Mela Vanjore. THEreafter, the said Sivasubramanian expressed his desire to retire from partnership and retired after executing a retirement deed. THE liquor trade was carried on as usual. Before the original licence holder retired from partnership, he executed an irrevocable Power of Attorney in favour of the 5th plaintiff herein, so as to enable the partnership to carry on the business without any technical objection though not such objections cannot be sustained. Since the partners began to give trouble to Sivssubramanian, Sivasubramanian caused a notice to the 5th plaintiff on 16.8.1990 stating that the power of Attorney granted to him was revoked. THE plaintiffs filed a suit in O.S.No.30/90 before this Court for a declaration and consequential relief of injunction, which is pending. In the meanwhile, the second defendant without disclosing his designation and identity came to the shop assisted by constabulary, locked the outer doors of the Star Wines business premises and affixed his seal on 21.8.1990 without observing any of the legal formalities and procedures He has not passed any order justifying the reason for his locking the outer doors and preventing the plaintiffs from entering the shop. THE second defendant has acted in his capacity as the Deputy Commissioner(Excise) and taken this extreme step of locking the business premises without giving any opportunity to the persons running the business. When approached personally for the reason, the second defendant disclosed that he locked the outer doors in his capacity as the Executive Magistrate and exercising jurisdiction under Section 145 Cr.P.C. in order to prevent a breach of peace of law and order problem. Any Executive Magistrate cannot under law lock a running business without passing any order. In the mean while, on the application of the plaintiffs herein in O.S.No.30/90 in I.A.No.192/90, this Court gave a verdict holding that the plaintiffs are entitled to be in possession of the business and also granted a temporary injunction against Sivasubramanian, his men and agents for a period of six months, not to disturb the possession or interfere in the business. THE Court by its order in I.A.No.192/90 has resolved the dispute regarding the possession and gave a clear finding that the plaintiffs are in possession and their possessions stand protected. A copy of the order was communicated to the second defendant on the same date. Even thereafter, the second defendant was not persuaded to terminate the proceedings allegedly taken under Section 145 Cr.P.C. remove the seal and permit the plaintiffs to run the business. To add insult to injury, a copy application made for the order under which the second defendant has acted still remains unanswered. Whatever representation was made calling upon the second defendant to open the seal, he was misguiding the plaintiffs by saying that he has referred the matter to the Collector and as well as the Law Department. It is a common knowledge that the Collector is an Appellate Authority for the Deputy Commissioner (Exercise), the Deputy Collector(Revenue) and the Executive Magistrate. It is therefore illegal situation in which the first authority acted on the advise of the Appellate Authority. This is unknown and contrary to law. What is worse is that even after the protracted discussion with the law Department as well as the Collector, no order has been passed and the second defendant has not disclosed on what authority he prevented the plaintiffs from running the business. While so,the respondent in I.A.No.192/90 in O.S.NO.30/90 in the file of this Court preferred a Civil Miscellaneous Appeal to the High Court in C.M.A.No.923/90. THE High Court has no hesitation in accepting the fairness of the order of this Court and dismissed the appeal on 21.9.1990. THE plaintiff is being told that pending litigation, the second defendant has closed the business. THE High Court observed that he has closed obviously at the instance of Sivasubramanian and by virtue of the Courts order granting injunction in favour of the plaintiffs, they will certainly move the concerned Authorities and get necessary permission to continue the business. In the light of the High Court order, another petition was made to the second defendant requesting him to remove the seal. This also met with the same answer that they were consulting the Collector to pass an order on this application. Once again, the second defendant has committed a very serious legal flaw in asking the Appellate authorities before he himself could pass any order. Unfortunately, this is the position prevailing in the Departments controlled by the second defendant. To add insult to injury, on returning from Pondicherry, the second defendant informed the plaintiffs that Sivasubramanian wants to surrender the licence and that even if he does not surrender, the second defendant will be proceeded against Sivasubramanian and terminate the licence as he entered into a partnership with the plaintiffs. This is nothing short of executive arogance and ignorance. THEy not only disobey the order of this Court and that of the High Court but also they will resort to short-circuit methods to defeat the verdict of this Court and that of the High Court. At the risk of being accused of repetition, the plaintiffs submit that till date no order has been passed by the second defendant in any of his capacities namely, the Executive Magistrate, the Deputy Commissioner (Excise), the Deputy Collector (Revenue). It is not merely illegal and immoral on the part of the second defendant to cause loss wantonly to bonafide citizens doing business according to law and accepted norms. Apart from being protected by the orders of the highest Court of the State and this Court, it is apparent that the second defendant has acted malafide and he is being misguided and misdirected by mischievous and motivated third parties. THE shop was closed on 21.8.1990. Even at a modest estimate the plaintiffs could have made a reasonable profit of Rs.200/- per day. But any estimate will be only a guess as long as they do not really do the business. THEre is a loss of reputation and goodwill. THE customers and the members of the trade have identified the plaintiffs to be law breakers and have glorified the second defendant as having acted against the law breakers. This loss of reputation and goodwill cannot be estimated in terms of money. At any event, for the sake of precision the plaintiffs estimated the value of damage suffered by them financially by and the loss of reputation at Rs.10,000/- This suit is levied for a declaration that the act of the second defendant in closing and sealing the business premises on 21.8.1990 without resorting to any of the provisions of law is illegal and not justifiable and for the consequential relief of injunction to direct him to break the seal and permit the plaintiffs to carry on the business and for a further injunction that the second defendant shall not interfere with the conduct of the business directly or indirectly till the disposal of the suit and to grant a consolidated damage of Rs.10,000/- for the loss of business and loss of reputation. Hence the suit.

(3.) IN fine, the appeal is allowed setting aside the decree and judgment in O.S.No.37/1990 on the file of Additional District Court, Pondicherry at Karaikal and thereby the suit is dismissed. No costs.