P L D 1963 Supreme Court 627 (PLP)

B. Z. KAIKAUS, J.‑--The facts relating to this appeal are not to any great extent in dispute. On the 10th September 1947; an evacuee shop in Raja Bazar, Rawalpindi, was allotted to one Abdur Rahman. The shop contained some movable property also and at the time when possession was delivered to Abdur Rahman an inventory was made of such movable property: On the 9th of February 1948, Abdur Rahman joined with him as a partner in the business which he was running in the shop. Muhammad Yaqoob Butt the sole respondent in this appeal and the respon dent acquired out of his individual funds a number of articles for use in the partnership business. Not long afterwards Abdur Rahman sold his share in the business for a sum of Rs. 10,000 to the respondent. The partnership as well as the sale not having been approved by the Rehabilitation Department, the Rehabili tation Authorities sealed the shop on the 5th May 1949, and allotted it along with the movable property which it contained to a third person. The respondent then put in an application before the Deputy Custodian, Rawalpindi, for a declaration that the movable property lying in the shop was not evacuee property and that it belonged to him. The Deputy Custodian enquired into the allegations and after a perusal of the two inventories which had been made one at the time when the shop was allotted to Abdur Rahman and the other at the time when the shop was allotted to the second allottee held that the articles in the shop which were not mentioned in the first inventory belonged to the respondent. This declaration by the Deputy Custodian was confirmed by the Custodian of Evacuee Property on the 26th March 1953. The plaintiff then approached the Deputy Rehabilitation Commissioner, Rawalpindi, for restoration of the movable property in respect of which he had secured a declaration. On the 2nd May 1955, the Deputy Rehabilitation Commissioner found that this property had been disposed of by the District Magistrate Rawalpindi, as unclaimed property. He moved the Superintendent of Industries for assessment of the value of the articles and the value was actually assessed at Rs. 11,

554. The Deputy Rehabilitation Commissioner made a recommendation that this sum be paid to the respondent. In spite of the best efforts of the respondent, however, the money was not paid and the respondent having despaired of receiving any redress from the executive authorities instituted the present suit on the 24th.December 1955, for payment of the above‑mentioned amount. There were three defendants in the suit, the Federation of Pakistan, the Custodian and the Rehabilitation Commissioner. Only the Rehabilitation Commissioner appeared to defend the suit, the proceedings against other defendants being ex parte. The following issues were framed : (1) Did the plaintiff enter into partnership with Abdur Rahman and supply the articles set out in paragraph 3 of the plaint? (2) Did Rehabilitation Authorites take into possession the articles mentioned in paragraph 3 of the plaint? (3) What is the effect of the decision of the Deputy Custodian dated the 10th of January 1953, on the present suit ? (4) Was the decision dated the 10th of January 1953, affirmed by the Custodian Punjab in accordance with law and did it concern the goods in suit? (5) To what amount of compensation is the plaintiff entitled in respect of the goods in suit? On the day fixed for recording of evidence even the representative of the third defendant disappeared and the evidence was recorded ex parte. The facts were really not very much in dispute and the trial Court granted the decree as prayed for. An appeal against the decree was filed in the High Court by the Federation of Pakistan alone. Before the High Court only two points were argued (i) that the suit was barred by limitation ; and (ii) that ex parte proceedings could not be taken against the Federation as no notice in accordance with law was served. As regards the first point the High Court refused to allow it to be raised because it had not been raised before the trial Court and it involved an enquiry into questions of fact. The second contention was found to be without any force because notice had in fact been served on a Secretary to the Government of Pakistan. The appeal was accordingly dismissed by the High Court. In the petition for leave to appeal to this Court two points were raised (i) that the suit was barred by limitation ; and (ii) that the Government was not liable for the tortious acts of its officers. On the first point leave was refused, because it was a mixed question of law and fact and had not been raised in the lower Courts. Leave was, however, granted on the second point on the ground that though it had not been raised in either of the Courts below it was a pure question of law. Learned counsel for the appellant urged that no suit for tort could lie against Government in respect of acts done by its servants just as no action can in such a case lie against the Crown in England. He accepted that the position in Pakistan after the Constitution of 1956 is different and that a defence open to the Crown need not be open to the Central Government, but he argued that the present case was one under the Govern ment of India Act of 1935 because the detention of goods which furnished a cause of action, had taken place in 1948. It has already been explained by this Court in Pakistan v. Muhammad A. Hayat (PLD1962SC28) that the constitutional status of the Crown of England is wholly different from that of the Government of Pakistan and an argument based on the equality of such statue may be misconceived. The Crown could not be sued in England in tort because‑ (i) the King could do no wrong; and (ii) the King could not be sued in his own Courts. Neither of these two considerations has any application to the Government of Pakistan. The present case is one under the Government of India Act, 1935, but still the matter is not governed by considerations applicable to the Crown and has to be decided on the provisions of the Government of India Act. By section 65 of the Govern ment of India Act, 1885, and section 32 of the Government of India Act, 1915, the remedies open to a person against the Secretary of State for India in Council were the same as would have been available against the East India Company. By section 176 of the Government of India Act, 1935, the remedies available against the Central Government (and subsequently by an amendment the Federation of Pakistan) were the same as were available against the Secretary of State for India in Council. So the question in such cases would be whether the East India Company could have been sued in tort if at the time when the cause of action arose the Government of this country vested in the East India Company. On the question whether (apart from the effect of the Crown Proceedings Act, 1947) the East India Company could have been sued for torts committed by its servant there was some difference of opinion in pre‑Partition India. It had been held in some cases that an illegal levy of custom under the Customs Act, an illegal acquisition of land under the Land Acquisition Act and an improper dismissal of a councillor of a municipality under the District Municipalities Act, could furnish good grounds for action against the Govern ment, while in some other cases it had been held that the closing of a labour depot by a District Magistrate, an improper arrest by a police officer, and negligence of a bailiff in taking insufficient security, could not be the foundation of a suit against the Government. Some confusion had been caused by the fact that sovereign acts were said to be immune from attack and this expression was applied in some judgments even to cases where the Government was purporting to act in relation to its own nationals under the Municipal Law. It is not necessary to examine the reasoning in the decided cases which led to opposite results in view of what follows. It may be stated, however, that there should be no dispute about the expression "sovereign act" being applicable only to acts committed in relation to other states or aliens and being inapplicable to a case where the Government is acting in relation to its own citizens. In the latter case the Government has authority to act only in accordance with the Municipal Law. In the first place it is to be observed that since the Crown Proceedings Act, 1947, the position of the Crown of England with respect to liability for torts committed by its servants has altogether changed. This Act provides:-- "

2. Liability of the Crown in tort.‑(1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject :‑ (a) in respect of torts committed by its servants or agents ; (b) in respect of any breach of these duties which a person owes to his servants or agents at common law by reason of ' being their employer ; and (c) in respect of any breach of the duties attaching? at common law to the ownership, occupation, possession or control of property Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate. (2) Where the Crown is bound by a statutory duty which is binding also upon persons other than the Crown and its officers, then, subject to the provisions of this Act, the Crown shall, in respect of a failure to comply with that duty, be subject to all those liabilities in tort (if any) to which it would be so subject if it were a private person of full age and capacity. (3) Where any functions are conferred or imposed upon an officer of the Crown as such either by any rule of the common law or by statute, and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the Crown in respect of the tort shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the Crown. (4) Any enactment which negatives or limits the amount of the liability of any Government department or officer of the Crown in respect of any tort committed by that department or officer shall, in the case of proceedings against the Crown under this section in respect of a tort committed by that department or officer, apply in relation to the Crown as it would have applied in relation to that department or officer if the proceedings against the Crown had been proceedings against that department or officer. (5) No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process. (6) No proceedings shall lie against the Crown by virtue of this section in respect of any act, neglect or default of any officer of the Crown, unless that officer has been directly or indirectly appointed by the Crown and was at the material time paid in respect of his duties as an officer of the Crown wholly out of the Consolidated Fund of the United Kingdom, moneys provided by Parliament, the Road Fund, or any other Fund certified by the Treasury for the purposes of this subsection or was at the material time holding an office in respect of which the Treasury certify that the holder thereof would normally be so paid," The liability, therefore, of the Crown is now the liability of any employer and the Crown would be liable to be sued in tort in all cases where an ordinary employer could be sued subject to the exceptions mentioned in the above section. If, therefore, in 1948 the Government vested in the East India Company, it could not be said that the East India Company was not liable for acts of its servants because if even the Crown was liable the East India Company could not be in a better position. The conten tion of learned counsel for the appellant has however to fail even apart from the above consideration. It is well‑settled, and even learned counsel for the appellant is forced to concede that the Government would be liable if‑-- (i) it takes the benefit of property illegally detained by its servants ; or (ii) it had ratified the tortious act of its servants. Neither of these propositions needs the support of elaborate reasoning. If the Government takes the benefit of illegally detained property it cannot be allowed to repudiate its liability and if it ratifies the act of its servant it adopts that act as it own. In fact, at least ordinarily, cases falling under the firs class will be cases falling under the second class too, for, when Government takes the benefit of property it ratifies the act of its servant. In the present case both these conditions are satisfied. The property in dispute had been disposed of by the District Magistrate as unclaimed property and we can safely presume that the proceeds had gone into the Government Treasury. It is no‑body's case that the proceeds were misappro priated by the District Magistrate or by any other authority concerned with the disposal of the property. If the proceeds of the property themselves are in the possession of the Government the Government is liable for the value of the property. The price for which the property was actually disposed of is immaterial. The respondent cannot suffer if the sale of his property was at less than the market value. At the same time there is ratification by the Government of the acts of its servant by the Government. The Government has allowed the money to remain in its own treasury. The Government has not taken up the position that the payment into the Government treasury of the proceeds of sale was unauthorised and that the proceeds have not been appro priated by it. The Rehabilitation Authorities and the District Magistrate were at the time acting on behalf of the Government and there has been no repudiation at all by the Government at any stage of the suit of the acts of its officers. As already observed the point had not been raised in either of the Courts below. Even in the grounds of appeal to the High Court nothing was said as to the officers having acted on their own in violation of law and against the instructions of the Government. The custody of the property by the officers of the Government was on behalf of the Government and it has never been disclaimed by the Government. Learned counsel for the appellant urged before us that the goods had in fact been lost and that the report of the Deputy Rehabilitation Commissioner in which it was stated that these Magistrate, Rawalpindi, was not correct. We have no reason to assume that the Deputy Rehabilitation Commissioner was making any incorrect report and we cannot allow learned counsel to question the correctness of the report, because we have allowed him to argue the question of the liability of the Government which was not raised in the Courts below as a pure question of law and we cannot allow him to raise points which involve disputes as to facts. This appeal is dismissed with costs. K. B. A. Appeal dismissed.