Gottipati Murali Mohan vs Jalagam Vengala Rao and others

The appeal is filed against the judgment and decree of the learned Subordinate Judge, Vijayawada in OS No. 26 of 1978.

The appellant is the plaintiff, 1st defendant is Smt. Indira Gandhi, the then Prime Minister of India, 2nd defendant is Sri Jalagam Vengal Rao, the then Chief Minister of Andhra Pradesh, 3rd defendant is the District Collector Mr. Santhanam and 4th defendant is the Government of Andhra Pradesh. The plaintiff is an advocate and his father is also a senior lawyer. The plaintiff is a close follower of Sri Jaya Prakash Narayan. It is his case that on 12-6-1985, the High Court of Allahabad has declared the election of 1st defendant as invalid and she was also debarred for contesting the election for six years. Emergency was declared in the country with the active connivance of the 1st defendant so as to protect her office and status. Number of democrats were arrested on 25th and 26th June, 1975. The plaintiff was arrested by the police on 26-6-1975 in pursuance of the detention order passed by the 3rd defendant. The plaintiff and other detenues were confined to Central Prison, Rajahmundry and they had a horrible experience in the jail, which has no proper accommodation at all. On 29-6-1975, the grounds of detention were communicated to the plaintiff. The plaintiff filed writ petition seeking writ of habeas corpus which was dismissed by the High Court. The first detention order was revoked and the 4th defendant passed another detention order on 1-9-1975. The said detention order was again challenged in the High Court. Thereafter, the plaintiff was released by the High Court on 9-10-1975. Again, another detention order was passed on 10-10-1975 and finally he was released on 10-2-1976. Thereafter, he resumed practice again. The plaintiff issued a notice demanding damages for the illegal detention. Since there was no reply, the suit against the defendants claiming damages for a sum of Rs.20,000/-with interest from the date of the suit was filed. In support of the claim for damages, it is averred in the plaint that he is in advocate Vijayawada from 1959 on civil side. He was having considerable practice. He also participates in the cultural, educational and political activities. The 2nd defendant was set ex parte. The 3rd defendant filed a written statement denying the liability of damages. It was also stated that the suit was barred by limitation. The suit is also barred for misjoinder of parties. It was stated that the 3rd defendant acted as Collector and District Magistrate and on information received by him that the plaintiff has been indulging in activities prejudicial to the maintenance of the public order and having satisfied issued an order by virtue of exercising of the power conferred on him by clause (a) of sub-section (ii) of Section 3 of the Act 26. Thus, he has discharged his duties in a good faith and he is not liable for any damages. The cause of action alleged to have arisen on 25-6-1975 is not correct when the emergency was revoked. The suit is also not maintainable in his personal capacity and thus he stated that the suit is liable to be dismissed.

Defendant No.4 also filed a written statement denying the claim for damages and that the 3rd defendant acted in pursuance of the discharge of his duties u/s 3 of the Maintenance of Internal Security Act, 1971 (Central Act 26 of 1971) (for brief the ''Act'') and u/s 16 of the Act if any Act is done in good faith, no suit lies for damages. Basing on the respective pleadings, the lower Court framed the following issues:

Whether the plaintiff is entitled to Rs.20,000/- towards the claim for restricted damages as prayed for by the plaintiff?

Whether this suit is misconceived and not maintainable and liable to be dismissed in limine ?

Whether the plaintiff has no cause of action against defendant 3 more so in the personal capacity?

Whether this suit for damages is in time?

Whether this suit is bad for misjoinder of parties and cause of action for multifariousness and hence liable to be dismissed?

Whether defendant 3 and defendant 4 had acted in good faith and discharge of the official duties comprised under Act 26 of 1971 and they are not liable for damages claimed by the plaintiff?

Whether this suit filed without notice u/s 80 CPC against defendant 3 is not maintainable?

Whether the damages claimed are excessive?

The plaintiff himself was examined as PW2 and marked Exs. A1 to A64. One witness was examined on behalf of the defendant. No documents were marked.

Pending the suit, 1st defendant died on 31st October, 1984.

The learned lower Court after considering the evidence on record and also the documents held that the 3rd defendant-District Magistrate acted in good faith and in a bona fide manner in passing the detention order of the plaintiff. It also held that the detention order passed by the Government was not illegal nor mala fide. The lower Court also found that the plaintiff could not establish that the District Magistrate acted outside the provisions of the Act on the ground of personal/ malice or on some other extraneous grounds. It was also fund that there was no proof that defendant 1, defendant 2 and defendant 4 instigated defendant 3 to pass the detention orders. On issue No.4, the lower Court held that defendant 3 is not personally liable and the cause of action against defendant 3 in his individual or personal capacity did not exist and held that the suit against defendant 3 in his personal capacity is not maintainable.

On the question of limitation, the lower Court held that the suit was barred by limitation. On the question of notice u/s 80 of CPC the lower Court held that notice has been properly served. The lower Court also held that since the cause of action is same and the same is indivisible against all the defendants and since the 1st defendant died, the cause of action did not survive against the other defendants and thus the entire suit is abated. On issue No. 5, the lower Court held that the suit against defendant 1 to defendant 3 in the personal capacity is misconceived and it is bad for misfeasance and for misjoinder of parties. Thus, the suit was dismissed by the lower Court by a judgment and decree dated 12-8-1985 against which the present appeal has been preferred.

The learned Counsel for the appellant Mr. N.V. Ranganadham submits that the findings of the lower Court that the order was passed in good faith by the 3rd defendant and 4th defendants are wholly misconceived that the events which took place from the date of detention till he finally released itself indicates that it is only a mala fide and malice in fact and law are both established. Thus, the finding of the lower Court is wholly misconceived. It is to be stated in this regard that the plaintiff alone examined himself as PW1 and no other witnesses were examined in support of his case. It is not in dispute that emergency was declared by the President of India and numbers of persons were arrested under Maintenance Internal Security Act through out the country. The plaintiff is one such person, who was arrested by virtue of the orders passed by the competent authority under MISA. But, however, the claim of the petitioner is that it was wrongful detention during the emergency period and therefore he claimed damages. The President proclaimed the emergency under Article 352 of the Constitution of India on 27-6-1975 and the right to citizen to move any Court for enforcement of Fundamental Rights under Articles 12, 21 and 22 were suspended during the emergency. The habeas corpus petition filed challenging the detention was dismissed by the High Court.

The learned Counsel for the appellant submits that the grounds furnished in support of the detention were not correct and they were introduced mala fide and thus the 3rd respondent did not Act in good faith. But, this aspect was considered by the lower Court and found that the District Magistrate acted in a good faith and there was no evidence to establish that the orders were passed malafide. The lower Court observed as follows:

"I feel District Magistrate acted in good faith and bona fide manner in ordering the detention of the plaintiff u/s 3(1)(a)(ii) of Maintenance Internal Security Act Ex.A10 is the order of State Government confirming the order of the detention and not revoking inspite of Ex.A8 representation by the plaintiff. The rejection of the representation u/s 14 that Maintenance Internal Security Act cannot be said to be illegal or mala fide. It cannot be said that without applying its mind the State Government rejected the representation"

u/s 16, no suit or other legal proceedings shall He against the Central or State Government for anything done in good faith or intended to be done in pursuance of the Act. Section 16 reads as follows:

"No suit or other legal proceeding shall like against the Central or State Government and no suit or prosecution or other proceeding shall lie against any person for anything in good faith done or intended to be done in pursuance of this Act."

It is not in dispute that the suit can be laid if it is established that the action was not taken in good faith. But, in this instant case, the burden lies on the plaintiff to prove that the orders were passed with mala fide intention and that the authorities did not act in good faith. There was no evidence to establish and on the other hand the reading of the order clearly indicate that the authority was satisfied u/s 3 of the Act and exercised the power and passed the orders of detention. Therefore, finding of the lower Court that there was no malice in fact or in law and that the authorities passed an order in exercise of the powers conferred u/s 3 cannot be said to be illegal or arbitrary.

The suit was laid against the defendant 3 in his personal capacity. The 3rd defendant acted in the capacity of the District Magistrate and passed the impugned orders under the provisions of Maintenance Internal Security Act and therefore the lower Court found that he cannot be made liable in his personal capacity and hence the suit against defendant 3 is misconceived and not maintainable. This finding cannot be said to be illegal or contrary to law. Admittedly, the order was passed in the capacity of the District Magistrate and not in his personal capacity. The statue authorised the District Magistrate to pass such an order. It is only if its is found that it is not passed in good faith, the suit would lie in his official capacity and not in the personal capacity and therefore the said finding of the lower Court is quite legal and valid.

On the question of limitation the learned Counsel for the appellant submits that the lower Court wrongly calculated the limitation and that the limitation commences from the date of the revocation of emergency and therefore the suit was within time. On this ground, the finding of the Court below is erroneous. I am unable to accept this contention also. The suit ought to be filed within one year from the date of release form the detention. The emergency was lifted on 21st March, 1977. It was sought to be contended by the plaintiff that during the emergency his right to move the civil Court for damages was suspended and therefore he gets right only on lifting the emergency and thus he cannot file the suit after lifting the emergency. The lower Court found that the right to move the Court was suspended was a fundamental right under Articles 12 and 21 of the Constitution of India. Therefore, nothing prevented the plaintiff from claiming damages within one year from the date of release from the date of detention. The said finding is quite legal and valid. Simply because the right to exercise the fundamental rights was suspended during the emergency, it cannot be pleaded that the plaintiff was disabled from filing the suit and claiming damages. In the instant case, the plaintiff was arrested and detained on 26-6-1975 and he was released on 1st September, 1975. Again he was re-arrested on 8-9-1975 and released on 9th October, 1975. For third time he was detained on 15-10-1975 and ultimately he was released on 10th February, 1976. Thereafter, the plaintiff was never put in detention till the emergency was lifted. Taking the last release on 10th February, 1976, the plaintiff ought to have filed the suit within one year and it was filed only on 19-11-1977. The release from the detention stands on different footing than lifting the emergency. Even though the emergency was lifted on 21-3-1977, yet nothing prevented the plaintiff from claiming the damages before the civil Court. That right to claim damages under common law was never suspended. Simply because, the detention order was declared as illegal, it cannot give cause of action for filing the suit. Thus, the suit was filed beyond limitation and finding on this aspect of the lower Court cannot be said to be illegal or contrary to law. Thus, when the right to claim had extinguished, consideration of the issues pales into insignificance. Even otherwise, I do not find any illegality on other issues as referred to above.

Under these circumstances, I do not find any merits in the appeal. Appeal is accordingly dismissed. No costs.