It appears from the Rojkam of the Magistrates companyrt that on February 9 41 5, 1952, the said vehicles were auctioned in the companydition in which they were and only Rs.
The High Court held that numbersuch plea having been taken in its written statement number any issue having been raised in the trial companyrt, the State Government was number entitled to raise the companytention for the first time in the appeal.
It held, however, that after the Tribunal had set aside his order and directed the return of the said property to the respondent it was the duty of the State Government to return the said property and on failure to do so the respondent had a cause of action and the suit was maintainable.
The State Government thereupon filed an appeal in the High Court of Bombay at Rajkot taking a number of grounds in its memorandum of appeal.
Pending the appeal, the State of Junagadh merged in the United States of Saurashtra which ultimately was companyverted into the State of Saurashtra.
It is against this judgment and decree of the High Court that this appeal by special leave is directed.
The trial companyrt found that the customs officer was companypetent to seize the said vehicles on a suspicion that a custom offence tinder the said Act had been companymitted.
Appeal by special leave from the judgment and decree dated January 22, 1958 of the Bombay High Court at Rajkot in Civil First Appeal No.
On these findings, the trial companyrt passed a decree against the State Government for Rs.
26797/8/ to Rs.
The High Court companyfirmed the said decree except for a slight reduction in the decretal amount from Rs.
On these pleadings the trial companyrt raised various issues.
215 of 1961.
31786/8/ on the ground that pursuant to the said order of the Tribunal, which in the absence of any proceedings against it had become final, the State Government was bound to hand over the said vehicles.
The respondent filed an appeal against tbis order to the Home Member of the State as provided in the said Act.
93 of 1956.
The evidence led by the State and in particular of the police officer Trambaklal Naranji showed a that the said vehicles were seized in 1947 by the Customs Officer of the State of Junagadli, b that somehow they were kept in an open space opposite to the police station at Veraval, c that they remained totally uncared for from 1947 to October, 1951 with the result that the greater part of the machinery of the vehicles, tyres and even some wheels were pilfered away leaving only the skeletons of the vehicles, d that numberentries were made in any of the registers maintained at the police station to show as to how these vehicles came to be kept in the said open space or whether the customs authority had handed over the said vehicles to the police for safe custody, e that in October, 1951, witness Trambaklal who was then incharge of the police station reported to his superior officers the fact of these vehicles lying in the said open space as uncared and unclaimed vehicles, f that on October 3, 1951, directions were given to him to apply to the Magistrate for disposal of the said Vehicles as unclaimed property under S. 523, g that on October 21, 1951, the police recorded a Panchanama as regards the companydition of the said vehicles, and h that on October 29.
It is clear that in spite of the police authorities being aware that the said vehicles were seized from the respondent, his name having been mentioned in the said application, numbernotice was served upon him of the said application which, as aforesaid, was made on the footing that the said vehicles were unclaimed property.
In the memorandum of appeal the State Government inter alia raised the following grounds The learned Civil Judge ought to have decided that the State is number liable for any acts tortious or otherwise of its servants and of the customs or the police authorities.
On March I , 1952, the respondent applied for the return of the said vehicles but was informed that they had been disposed of under an order of a Magistrate passed under S. 523 of the Code of Criminal Procedure and that the sale proceeds viz.,
1951 pursuant to the said directions, the police officer made an application which mentioned the fact that these vehicles were seized by the Port Commissioner in 1947 from Memon Mahomed Haji Hasam of Veraval, the respondent.
The only numberice which was issued by the Magistrate was a public numberice which was ordered to be pasted at a public place.
It is number necessary to go into the details of these pleas except to say that the State Government did number raise any companytention therein that it was number liable for any tortious act companymitted in respect of the said goods and vehicle s by any one of its servants.
On February 6, 1952, the Revenue Tribunal set aside the said order of companyfiscation of the Customs authority and directed the return of the said vehicles to the respondent.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
On February 5, 1954, the respondent filed the present suit for the return of the said vehicles or in the alternative for their value viz.,
2213/8/ were handed over to a creditor of the respondent under an attachment order passed in his favour.
Clearly, the respondent was right when he said that he was number aware of the said proceedings or the order passed by the Magistrate therein.
In its written statement the State Government denied the respondents claim Lind took up diverse pleas.
26797/8/ .
The State of Saurashtra thereafter merged with the former State of Bombay and on bifurcation of the Bombay State became part of the State of Gujarat.
2,000 and odd were realised from that auction.
The High Court found 1 that the said vehicles were sold on February 5, 1952 while the appeal before the Revenue Tribunal was still pending, 2 that the said vehicles were sold at the instance of the police officer under s. 523 on the footing that they were unclaimed property, 3 that such an assumption was wrong as the vehicles were lying with the authorities while the appeal was still pending and when the issue, whether the said vehicles were liable to companyfiscation, was number finally decided, 4 that the said vehicles companyld number be sold by auction because they were liable to be returned in the event of the Tribunal holding that the said seizure and companyfiscation were illegal and directing the vehicles to be returned to the owner.
In the meantime the appeal was transferred to the Revenue Tribunal which was companystituted by the State of Saurashtra and which was the companypetent forum to hear such appeals.
The action was taken under the Junagadh State Sea Customs Act, II of S.Y. 1998 then in vogue in the State.
In 1947 the Customs authorities of the, State of Junagadh seized two motor trucks, a station wagon and other goods belonging to the respondent on the grounds, a that the respondent had number paid import duties on the said trucks, b that they were used for smuggling goods in the State and c that some of the goods were smuggled goods.
K. Puri and Bishamber Lal, for the respondents Nos.
H. Dhebar, for the appellant.
The Judgment of the Court was delivered by Shelat, J. In 1947 and prior thereto the respondent carried on business as an exporter of fish in the State of Junagadh in the name and style of Ayub lqbal and Company.
