BABULAL AGARWALLA Vs. PROVINCE OF ORISSA

JUDGEMENT

(1.) These two appeals arise out of the judgment and decree passed by the Subordinate Judge of Puri in a suit brought by one Babulal Agarwalla, a merchant of Faridpur district in East Bengal, claiming damages for alleged illegal and malicious seizure of several bags of rice on various dates in June and July, 1943. The learned Subordinate Judge decreed his claim for damages in respect of seizure of some bags of rice on three dates (16-7-1943, 22-7-1943 and 27-7-1943); but dismissed his claim in respect of seizure on other dates. F. A. No. 18 of 1946 was filed against that portion of the judgment of the Subordinate Judge which disallowed his claim and P. A. No. 23 of 1946 was filed by two of the police officers against whom the learned Subordinate Judge had given a decree for damages for unlawful seizure. Both the appeals were heard together for the convenience of all concerned and will be dealt with in one judgment.

(2.) During the year 1943 the second world war was going on with great intensity and the provisions of the Defence of India Act, the Defence of India Rules and the various Control Orders in respect of essential commodities were applied with full rigour in all the States of the territory formerly known as British India. The Control Order with which the Court is concerned in the present litigation is the Foodgrains Control Order, 1942 made by the Central Government in exercise of the powers conferred by Sub-rule (2) of Rule 81 of the Defence of India Rules. That Order prohibited any person from engaging in any undertaking in respect of purchase, sale, or storage tor sale, in wholesale quantities of any foodgrain except under and in accordance with a licence issued in that behalf by a Provincial Government. The Order defined 'purchase or sale in wholesale quantities' as meaning 'purchase or sale in quantities exceeding 20 maunds in any one transaction' and there was a further provision to the effect that any one 'who stores foodgram in quantities exceeding 50 maunds may, unless the contrary is proved, be deemed to store the foodgrain for purposes of sale'. There are otner provisions in the Order dealing with the conditions under which licences would be granted by the Provincial Governments and the terms of such licences. In pursuane of this Order various Provincial Governments restricted the export of rice from one Province to another by the issue of licences. But during the great Bengal famine of 1942-43 when there was acute shortage of rice in Bengal the Government of India inserted a second proviso to Sub-rule (2) of Rule 81, Defence of India Rules by an amending notification No. 5-DC (28)/ 43, dated 18-5-1943 by which the Provincial Governments of Assam, Bengal, Bihar and Orissa were, in effect, prohibited from restricting movement, transport, distribution, disposal etc. of foodgrains within those four Provinces with effect from 18-5-1943. By another notification No. C. G. IV(2)/43 dated 29-5-1943 a second proviso was added to clause 3 of the Foodgrains Control Order, 1942, to the following effect:

(3.) On 10-6-1943, plaintiff Babulal Agarwalla was granted a licence by the Supply Officer of Goalundo in Faridpur district to carry on the business of purchase, sale, storage for sale etc. of rice, paddy and other foodgrains. Another merchant of the same district named Makhanlal Sharma (P. W. 1) also obtained a similar licence and both these licensees came to Orissa for the purpose of purchasing rice at cheap rates and exporting it to Bengal for sale at high profits. The plaintiff opened a godown at Khurda and through various agents purchased rice from several cultivators in the mofussil. Several bags of rice thus purchased by him were seized by the police of Khurda and Jatni on 28-6-1943, 7-7-1943, 16-7-1943, 22-7-1943 27-7-1943 and 12-9-1943. The plaintiff contended that these seizures were unlawful as they were done in pursuance of a preconcerted conspiracy on the part of the Provincial Government and its local officials to flout the orders of the Government of India regarding the free movement of foodgrains from Orissa to Bengal and that though he had shown his licence to the Subdivisional Magistrate of Khurda before commencing his business in Khurda sub-division yet he was put to much unnecessary harassment and huge loss by being entangled in several criminal cases for offences under the Defence of India Rules which were eventually withdrawn. Hence he claimed damages from the Government of Orissa (defendant No. 1), the then Sub- divisional Magistrate of Khurda (defendant No. 2), the then Assistant Price Control Officer, Khurda (defendant No. 3) and various subordinate police officials (defendants 4, 5, 6, 7, 8, 9 and 10) who actually seized his bags of rice. The main defence of the Government of Orissa was that they were not responsible for the tortious act, if any, committed by their subordinate officials and that there was no conspiracy between them and their officials as alleged by the plaintiff. The Sub-divisional Magistrate of Khurda took the plea that he had acted bona fide in exercise of the powers conferred on him by the Defence of India Rules and that in any case his action was protected by Section 17 (1), Defence of India Act. The police ameers also have taken a similar plea. The Assistant Price Control Officer took the plea that he had nothing to do with the seizure of any of the bags and that consequently he was not liable in any view of the case.