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Judgment
A.C. Arumugaperumal Adityan, J.—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.
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caused a notice to the 5th plaintiff on 16.8.1990 stating that the power of Attorney granted to him was revoked.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 u/s 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 u/s 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.
The second defendant''s written statement was adopted by the first defendant. The second defendant in his written statement would contend that
the allegation that the plaintiffs are carrying on retail trade in Indian made foreign liquor under retail licence granted by the Excise Department ,
Pondicherry is false. The Excise Department has not granted any licence whatsoever to the plaintiffs. One Sivasubramanian who is not a party in
the suit has been granted the licence and he is running the business and he is a licensee in the eye of law. The licensee informed him through a letter
that he has conducted the business through the 5th plaintiff as his power agent and subsequently, he had revoked or cancelled the power deed
through a registered advocate notice on 16.8.1990. This defendant is not a party in O.S. No. 30/90 on the file of Additional District Court,
Pondicherry. It is false to allege that without any justification and without observing any of legal formalities and procedures on 21.8.1990, the
second defendant without disclosing his designation and identity came to the shop assisted by constable, locked the outer doors of the Star Wines
business and affixed his seal. This defendant states that his predecessor has received information from the Superintendent of Police, Karaikal on
21.8.1990 at 3.30 p.m., that the Village Melavanjore in Karaikal region is tensed and peace has been disturbed. All the shops in the area have
been closed. The reason for this disturbance is that one Star Wines at Melavanjore has been taken possession forcibly by one Sivasubramanian
and his gang stated to be a lorry load strong driving the people, who were manning the shop employed by one Gunasekaran. Expecting some
untoward incident, the Excise Commissioner/Executive Magistrate''s presence was requested. This defendant proceeded to the place of
occurrence along with Tahsildar and Superintendent of Police of Karaikal. This defendant could see that the situation was indeed tense and the
dispute between Sivasubramanian and Gunasekaran over the privilege for running the IMFL retails business in the premises at Door No. 9-A,
Melavanjore has led to a situation in which the peace of the area has been breached and the area was tensed and shops have been closed. With a
view to find an amicable solution on for the dispute, it was made know that a meeting will be held in a nearby temple. In the meeting the dispute
could not be settled. Since the parties were not agreeable to a peaceful solution of the dispute and the dispute has given rise to a situation of
Emergency, the defendant was satisfied that attachment of the property ie., the IMFL retail shop"" Star Wines"" at Melavanjore is necessary to
prevent any further breach of peace and restore normalcy and this defendant ordered the attachment of the said property in exercise of the powers
conferred upon him u/s 146 Cr.P.C. and the attachment was made in the presence of 4th plaintiff Selvaganapathy and V.R. Ramasamy, power
agent of the first respondent and Sivasubramanian and P.R. Nalamaharajan. This defendant has initiated the proceedings u/s 145 Cr.P.C. against
the said persons and the defendant cancelled the proceedings. This defendant as Deputy Commissioner(Excise) has also initiated proceedings
against the said Sivasubramanian for violation of the breach of conditions of the licence as per the provisions of the Excise Act and Rules and he
cancelled the licence. Therefore, as Executive Magistrate and Deputy Commissioner (Excise) has acted according to the law and rules with good
faith and intention and he has not violated any provisions of law as alleged by the plaintiffs. It is false to allege that whatever representation made
calling upon the second defendant to open the seal, he has referred the matter to the Collector and as well as the law Department. None of the
plaintiffs met him at any point of time and he never informed them about his consultations with his superior officers as alleged by the plaintiffs. This
defendant is a responsible Government Officer knows very well about his duties and his powers, and he has put up 20 years service in the
Department. This defendant reserve his rights to proceed against the plaintiffs for their open defamatory allegations"" This is nothing short of
Executive arogance and ignorance"" . As per the licence conditions and Rule No. 6 and 9, the licensee shall carry on business at the licensed
premises either personally or by an agent or servant duly authorised by him in this behalf in writing signed by himself and counter signed by an
Excise Officer not below the rank of Inspector. As per Rule 9, the licensee shall not, without the permission of the Excise Commissioner sell,
transfer, or sub let the privilege storing in bond Indian or foreign liquor/ sprit granted to him by the licensor nor shall be in connection with the
Excise of the said right enter into any agreement which in the opinion of the Excise Commissioner is of a nature of sub lease. No person will be
recognised as the partner of the licensee for the purpose of this licence, unless the partnership has been declared by the Excise Commissioner
before the licence is granted and the names of the partners have been entered jointly in the licence or if the partnership is entered into after granting
of the licence, unless the Excise Commissioner agrees, on application made to him to alter the licence and to add the name of the partner in the
licence. Therefore this defendant states that the plaintiffs are not the partners in the said business as alleged by them, since they have not fulfilled the
conditions referred to above and in eye of law. The licence holders to conduct the said business and if this Court directs the defendant to allow the
plaintiffs to conduct the liquor business, then it amounts to allow them to run the business without a valid licence and it will become a bad precedent
to run liquor business without a valid licence and without paying any licence fees and that this Court should be the least firm to allow the same. This
defendant is not liable to pay any damages to the plaintiffs much less Rs. 10,000/- as claimed by them in the plaint, since this defendant has not
violated any provisions of any law. It is false and untrue to allege that even at a modest estimate the plaintiffs could have made a reasonable profit
of Rs. 200/- per day and there is a loss of reputation and good will and the customer 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. The suit is not properly valued and proper court
fee has not been paid. Hence the suit is liable to be dismissed with costs.
On the above pleadings, learned trial Judge, had framed six issues and on the basis of oral and documentary evidence let in by both sides, has
rendered a finding that the defendants shall pay a consolidated damages of Rs. 10,000/- to the plaintiffs with proportionate costs and interest. But
dismissed the declaratory prayer. Aggrieved by the findings of the learned trial Judge, the defendants have preferred this appeal.
Now the point for determination in this appeal is whether the findings of the trial Court awarding a consolidated damages of Rs. 10,000/- to the
plaintiffs is sustainable under law?
The point:
There was admittedly a dispute between one Sivasubramanian , the original licence holder of the suit arrack shop and the plaintiffs who are the
business partners of the said Sivasubramanian in conducting the business in the name and style of ""Star Wines"" at Melavanjore. A civil suit in O.S.
No. 30/90 was also filed before the Civil Court by the plaintiffs against the partners in connection with the running of the above said liquor business
and in the said suit, it is seen from Ex A1 that a temporary injunction was granted in favour of the plaintiffs holding that they are in possession of the
said wine shop. In the mean time, there was a commotion in the wine shop affecting the public tranquillity and peace. As per the request made by
the police, the second defendant being the Deputy Collector of Excise proceeded to the Star Wines shop and closed the shop affecting his sale.
Only under Sections 145 and 146 Cr.P.C., the second defendant had exercised his powers to prevent any untoward incident affecting the public
peace. The plaintiffs have claimed damages caused to them due to the act of second defendant by closing the arrack shop. Only in the official
capacity, the second defendant at the instance of the police has rushed to the place where the wine shop was situated and closed the shop, only in
the interest of the public peace. Ex B5, the order of the Deputy Commissioner (Excise) Karaikal dated 12.10.1990 will clearly go to show that, a
show cause notice was given to Sivasubramanian, licensee for running M/s Star Wines under the proceedings No. 8661/90-91/C2 dated
27.9.1990 for having placed the wine shop in charge of a person who has not been authorised in consultation with the Excise Inspector as per Rule
204 of the Pondicherry Excise Rules and after considering his explanation, the licence granted in favour of Sivasubramanian to run the Star Wine
shop was cancelled. It is seen from Ex B3 the Mahazar that Star Wines shop was closed and sealed on 21.8.1990 only to prevent the law and
order problem. The Official act of Deputy Commissioner(Excise) (second defendant) cannot said to be excessive or arbitrary. Even if the Deputy
Commissioner(Excise) Karaikal had made any violation of following the procedure or any law, then it is open to the petitioner to move before the
Commissioner, Excise, Karaikal for redressal. There is absolutely no evidence let in before the trial Court to show that the second defendant has
failed to follow the provisions contemplated under Sections 145 or 146 Cr.P.C. Under such circumstances, this Court is of the view that the
damages of Rs. 10,000/- awarded to the plaintiffs by the trial Court cannot be sustainable under law. The point is answered accordingly.
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.