J.N. Bhat, J.This is a civil first appeal against the decree and judgment of His Lordship, the Chief Justice dated 5th April, 1968 whereby he has dismissed the suit of the plaintiff. The plaintiffs suit was that he was granted a right to collect drift wood from river Ravi from 1-4-1961 to 31-3-1962 on payment of Rs. 17,500/- by the State of Jammu and Kashmir on which he had paid Rs. 5,833.33 and he had collected the drift wood and stocked it at Shan, Dhana, Badhani Noors, Rajpura and Sukhal Khud in Kathua District; that the Beacon Signal Task Force (hereinafter referred to as Beacon Project). People removed all these stocks worth Rs. 28.000/- from the above mentioned places from November 1961 to December 1961 in their unit vehicles and transported it to Dhana camp and Pathankot. The plaintiff sought protection of his rights and invoked the aid of police and forest authorities. As the plaintiff had been unable to set the money or redress of his grievances, he first brought a suit for declaration that the State could not recover the remaining amount of Rs. 11,666,67 still outstanding against him and for a refund of Rs. 5,833,33 and a declaration that the defendants were liable to pay to the plaintiff a sum of Rs. 28,000/- and for equitable adjustment of the claims of the plaintiff against the defendant and for a net decree for Rs. 16,233,33.

2. Written statements were filed by the defendants and the learned Judge by means of his order dated 28th March 1964 framed the following issues in this case:-

1. Is the suit bad for mis-joinder of causes of action and parties O. P. D.

2. Is the suit barred by Section 42 of the Specific Relief Act O. P. D.

3. Whether the suit is properly valued and proper court fees paid O. P. D.

4. Whether notice u/s 80 of the CPC is not necessary and if necessary is it valid O. P. Pltf:

5. Whether defendant No. 3 Illegally lifted the wood in question If so. what is its value and to what extend the defendant is liable O. P. Pltf:

6. Whether the suit against defendant No. 2 is maintainable O. P. D.

7. To what relief, if any, is the plaintiff entitled O. P. P.

3. The plaintiff it seems later on gave up his claim against the defendant No. 2 (State of Jammu and Kashmir) and also paid the court fee on Rs. 28,000/-The learned trial Judge held as under on the different issues.

4. Decision on issue No. 1 was unnecessary because the plaintiff had given up his claim against the defedt: 2 Issues 2 and 4 were not pressed before him. As the deficiency in the court fees had been made up issue No. 3 was decided in favour of the plaintiff. Similarly about issue No. 6 His Lordship held that the suit had to be dismissed against the State of Jammu and Kashmir as the plaintiff had given up his claim against it. The crucial issues that were determined by His Lordship were issues Nos. 5 and 7. Issue No. 5 was a factual issue about the lifting of the drift wood belonging to the plaintiff by the Army People. This was decided by His Lordship in favour of the plaintiff as shall be further discussed later. The last issue is about the relief. On this point His Lordship relied upon a Supreme Court authority reported as Kasturilal Ralia Ram Jain Vs. State of Uttar Pradesh, and held that the plaintiff was not entitled to any relief, the suit was as such dismissed leaving the parties to bear their own costs.

5. Against this decree, the present Appeal has been preferred by the plaintiff

6. We have heard the learned counsel for the parties-

7. The learned counsel for the appellant has argued that His Lordship, the Chief Justice, has considered the question of lifting of this drift wood by the Beacon project at length. He has discussed all the evidence produced by the parties in detail and then come to the following conclusion:-

On the consideration of the evidence and the circumstances, therefore, I am clearly of the opinion that the plaintiff has proved the theft of the stock of drift wood valued at Rs. 28,000/- by the Jawans and men of the Beacon Project who were in the employ of the first defendant.

The learned counsel has attacked His Lordships finding on the point of law alone whereby His Lordship has held that the suit of the plaintiff is not maintainable. We shall discuss that aspect of the case later.

8-18- Mr. Amarchand, the learned Additional Advocate General appearing for the respondents argued that the finding of fact given by the learned trial Judge also is not warranted by the evidence on record. We heard him at length but we are unable to agree with his contention. The judgment of the learned Chief Justice is very elaborate, discursive and has discussed the whole evidence produced by the parties. Independently also considering the evidence we also have no alternative but to come to the same conclusion which His Lordship has arrived at (After discussion of evidence his Lordship proceeded:) So on facts this much is proved in this case that the Jawans of the Beacon Project removed this timber from various places mentioned by the plaintiff in his plaint namely Shan, Dhana, Badhani, Noors. Rajipura and Sukhal Khud in Kathua District and used it for camp fire purposes or otherwise used it as fuel.

19. Next we take up the point of Law decided by His Lordship. His Lordship has quoted a passage from Storys Law of Agency and has mainly relied on Kasturilal Ralia Ram Jain Vs. State of Uttar Pradesh, . The passage from Story says that in the case of Public agent the Government or public authority is not bound unless it manifestly appears that the agent is acting within the scope of his authority or he is held out as having authority to do the act of his employer in his capacity as public agent to make the declaration or representation for the Government. On the basis of the Supreme Court authority His Lordship has come to the following conclusion:

Analysing therefore the principles laid down by the Supreme Court, the position that emerges is that before the State can be liable, the following conditions must be satisfied:

1. That the tortious act must have been committed in the course of employment and within the scope of the authority of the public officer concerned.

2. That the said act must not be in exercise of a statutory function either referable to or based on the delegation of a sovereign powers of the State.

In other words the Act must not be in connection with any Governmental activities, although a public servant may be acting in excess of the powers conferred on him by the statute.

20. Then His Lordship repelling an argument of the learned counsel for the appellant says :-

Apart from this, the evidence does not at all indicate that it was any part of the duty of these Jawans of the Beacon Project to go to the extent of stealing away the property of somebody and if they did so it was their individual act which far from falling within their statutory functions did not even fall with in the course of their employment. Even under the ordinary Law of master and servant the Union of India would not be liable.

His Lordship has himself given the facts of that case. Then His Lordship has quoted a passage from the judgment of the Supreme Court (Supra) and came to the following conclusion.

On a parity of reasoning therefore, in the present case since the Jawans were supposed to be on duty for all the 24 Hours even if they misappropriated the wood of the plaintiff for the purpose of making a camp fire they were acting in exercise of sovereign powers so, as to make the first defendant immune from the liability.

The whole decision of this case turns on this finding. The Supreme Court authority as well as other law relevant to the point lays down that if the act is committed by virtue of certain powers vested in an authority sharing the sovereign powers of the State that act even if wrongful is saved and the State is not liable for such a tort committed by any of its employees. His Lordship has misconstrued the Supreme Court judgment on this very point. If the action of collecting the drift wood were entrusted to the Jawans by means of any statute and they had done so, thereby even causing loss to the appellant, they would be protected. The real point is even according to His Lordship these Jawans would be considered on duty for all the 24 hours and acts committed by them would be during the course of their employment. This would not exclude the responsibility of the master but would make him liable for tortious acts of his employees because they were committed while working and attending to the duties entrusted to them by their master. In the Supreme Court authority the plaintiff was arrested by a Police Officer in U. P. on suspicion and a quantity of gold was seized under the provisions of the Code of Criminal Procedure. He was sometime later released but the gold was not returned to him. As the Head-constable incharge of the Malkhana had absconded with valuable property as well as the gold of the plaintiff, the plaintiff brought a suit against the State of U. P. for the return of the gold or in the alternative for the money value thereof. It was held that although the manner in which the gold seized from the plaintiff had dealt with at the Malkhana showed gross negligence on the part of the police officers and the loss suffered by the plaintiff was due to the negligence of police officers of the State yet as the act of negligence was committed by the police officers while dealing with the property of the plaintiff which they had seized in exercise of their statutory powers, which could be properly characterised as sovereign powers and so the act which gave rise to the plaintiffs claim for damages had been committed by the employees of the State during the course of their employment but the employment in question being of the category which can claim the special characteristic of sovereign power, the claim could not be sustained. These are the brief facts and their Lordships in paragraph 21 of the Judgment said as under while referring to a decision of the Supreme Court of Calcutta in the case of Peninsular and Oriental Steam Navigation Co. v. Secretary of State. (1868) 5 Bom HCR App 1 :-

........ that this case recognizes a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants and acts committed by public servants which are not referable to the delegation of any sovereign powers.

and laid an important dictum:-

If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is: was the tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on the delegation of the sovereign powers of the State to such public servant If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. The act of the public servant committed by him during the course of his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose........

And their Lordships expressed regret that the distinction which is very clear and precise is not sometimes borne in mind. Here also applying this test to this case it is nobodys case that the collection of the drift wood was within any part of the sovereign duties to be discharged by the Jawans of the Beacon project nor is there any statute under which they could do so On the admitted findings the Jawans of the Beacon project did collect this wood while they were on duty. The wood was lifted in the vehicles maintained by the Company; Jawans in uniform were responsible for its removal and was used for the Companys requirement and for camp fire. It appears to us that as reported by the Officer Commanding to Mr. Fazal Mihra Range Officer the Jawans did not intend to steal the fire wood but as they found that the fire wood was without any property mark, they thought the fire wood belonged to the Government and as such being on Government duty they could utilize it for their legitimate needs. But when the Officer Commanding was asked to make a Commitment in writing he did not like to do so because it was represented to him that the fire wood belonged to private individual namely the plaintiff. In our opinion the liability of the Union of India can be viewed from two points of view in this case and in both cases the Union is responsible to make good the loss caused to the plaintiff appellant.

21. In the Supreme Court authority (Supra) and relied upon by the learned Single Judge it has been pointed out by their Lordships in clearest terms that the State would not be saved from liability when the act complained of was performed by any of its officers in the discharge of his official duties. Their Lordships clearly said that:-

.....If the tortious act has been committed by a public servant in discharge of duties assigned to him. not by virtue of the delegation of any sovereign power, an action for damages would lie. The act of the public servant committed by him during the course of his employment is, in this category of cases an act of a servant who might have been employed by a private individual for the same purpose.....

Such acts on the part of servants of the Crown are to be determined on the analogy of the responsibility of a private master for the acts of his servant. On that aspect of the case there are authorities both of the Supreme Court and other High Courts. The only requirement is that act done must be in the course of employment. Authorities have gone so far as to say that even if the act was expressly forbidden by the master in certain cases, the responsibility of the master would be there for the tortious acts of his servant. Reference in this behalf may be made to the Principles of the Law of Torts by J. P. Gupta (1965) page 172, who has quoted from a case Re: Limpus v. London General Omnibus Co. (1862) 1 H & C 526 where the master has been held responsible for the act done by the servant in the course of employment even when it is expressly forbidden by the master. The other rule in this behalf that has been laid down is that the servant will be deemed to be acting not outside the scope of his employment because he intended to benefit himself and not his master. In another case referred to by the same author Re: Canadian Pacific Rly. v. Lockhart AIR 1942 A. C. 591 it is stated that the masters were liable where the servant in spite of the orders of the masters not to use uninsured motor cars the employee used his own uninsured motor car on a journey for the purpose of and as a means of execution of the work he was employed to do and by his negligent driving injured the plaintiff. The learned author then refers to an important case Lloyd v. Grace Smith & Co. 1912 A. C. 716. In that case the defendants were a firm of solicitors, they employed a clerk who conducted their conveyancing business. The plaintiff a widow owned some cottages, she wanted to dispose of these cottages she went to the defendants office where she met the clerk who induced her to execute a mortgage in his favour. His employers were held liable for the fraud committed by the servant.

22. Lord Macnaughten has observed as follows:-

The other line of defence, which found favour with the courts of Appeal, requires more consideration. It was rested on the fact that the fraud was committed not for the benefit of the firm, but for the benefit of Sandles himself. It was contended that Barwicks case is an authority for the proposition that a principal is not liable for the fraud of his agent unless the fraud is committed for the benefit of the principal. Barwick v. English Joint Stock Bank (1867) 2 Ex. 259 is no doubt a case of the highest authority. It was decided in Exchequer Chamber, and the judgment was delivered by Willes J. But I agree with my learned and noble friend Lord Halsbury that the case has been misunderstood in late years, and that it does not decide any such proposition as that for which it was cited in the Court of Appeal. It decided two things; It decided that learned trial Judge was wrong in non-suiting the plaintiff. It also decided that if on a new trial the jury should come to the conclusion that the agent of the bank had in fact committed the fraud which in the pleading was charged as the fraud of the Bank, then the principal though innocent, having received proceeds of the fraud must be held liable to the party defrauded. As I think it follows from the decision and the ground on which it is based, that in the opinion of the Court principal must be liable for fraud of his agent committed in the course of his agents employment and not beyond the scope of his agency whether the fraud be committed for the principals benefit or not.

23. In a case A. H. Bull and Co. v. West African Shipping Agency and Lighterage Co, 1927 A. C. 686 the appellants let on hire to the respondents a lighter manned by two native lightermen. The lighter was moored to the respondents ship in Lagos harbour and was used by them during the day in loading the ship. During the night the lightermen negligently left the lighter. The lighter got adrift and owing to the absence of the lightermen, it was carried out to sea ran ashore and broke up. The Privy Council held that the lightermen being under the orders and control of the respondents during the night as well as during the actual loading the respondents were responsible for their negligence and were liable to the appellants for damages.

24. In Union of India (UOI) Vs. Bhagwatiprasad Mishra, the facts were that A was employed as a deliveryman by the Government Military farm. His duty was to supply milk to the customers. The milk used to be carried in a military truck and was being supplied at two rate one with concession to members of military organization, the other without concession to members who did not belong to military organizations- When out of his duties A met with an accident on account of the drivers negligence. The Court held that:-

the farm run by the Government was not an undertaking which could be referred only its sovereign powers. It was an undertaking which any private patron could take to and was indeed in the nature of a business or commercial concern. It was immaterial whether or not the customers belonged exclusively to military organization but the rate without concession was intended for persons who were not members of the military service.

It further held two things viz.:-

(ii) That it was not an act of a Government servant which was performed In exercise of any statutory powers. The case was governed by the ordinary law of the liability of a master for the tort committed by his servant: AND

(iii) that the accident was caused through the drivers negligence. In the circumstances, the Union of India would be liable as the injury sustained by the plaintiff was caused by its servants negligence in the course of his employment". Mr. Gupta on page 181 of his book "The Principles of the Law of Torts" says:-

The general immunity of the State In India in the field of tort has been put to at least three broad exceptions and in those cases the State is liable to an action in Courts for the tortious acts of his servants. They are as follows:-

(1) The State is liable for the negligence of his employees committed in the course of their employment in the same way as any private employer when the act complained of is of a private nature and not done in the exercise of sovereign power or in the performance of an act of State.

(2) Where the acts complained of consist in detention by the State, land, goods or chattels belonging to the subject though in fact those acts are done by the officers of the State in the exercise of powers given to them under the Municipal law......

Cases have gone to the extent of holding the master liable for the criminal acts of his servant if those acts were committed during the course of his employment. On page 174 of his book. Mr. Gupta says that:-

It has been held in the undermentioned cases that a master is liable for the the criminal acts of his servant committed during the course of his employment. Dhian Singh Sobha Singh and Another Vs. The Union of India (UOI), has discussed what in law of torts are called conversion and detention. Their Lordships have held that:-

A conversion is an act of wilful interference without lawful justification, with any chattel in a manner inconsistent with the right of another, whereby that other is deprived of the use and possession of it. If a carrier or other bailee wrongfully and mistakenly delivers the chattel to the wrong person or refuses to deliver it to the right person, he can be sued as for a conversion. Every person is guilty of a conversion, who without lawful justification deprives a person of his goods by delivering them to some one else so as to change the possession-

Their Lordships have further stated that:

The action of detinue is based upon a wrongful detention of the plaintiffs chattel by the defdt: evidenced by a refusal to deliver it upon demand and the redress claimed is not damages for the wrong but the return of the chattel or its value. If a bailee unlawfully or negligently loses or parts with possession he cannot set rid of his contractual liability to restore the bailors property on the termination of the bailment and if he fails to do, he may be sued in detinue.

25. Applying the broad tests laid down by the Supreme Court and other English and Indian Courts to the facts of this case, the military Jawans were in the employ of the Union of India at the relevant time. They were supposed to be on duty all the 24 hours. The Military vehicles were also to be used for official purposes. The lifting of this wood cannot be considered to be an isolated act of Jawan or few Jawans of the Beacon project. It is an act done by various jawans and other employees of the Beacon project at various times, removing fire wood from different places stacked by the appellant, presumably under the belief that the wood being without anybodys property mark, they were entitled to lift it and use it for their bona fide company requirements. The act must have been done under the orders of the Officer Commanding and with his permission.

26. Even the learned Judge has held that "the Jawans were supposed to be on duty all the 24 hours." Obviously if they were and are supposed to be on duty all the 24 hours and if they lifted the firewood belonging to the plaintiff and that too in the Army vehicles this) action of theirs would be in the course of the employment of their master. Camp fires are a normal activity of the army people and as has been held in this case that this fuel was used by the Company for their requirements, the Union of India will be clearly liable because the fuel for this purpose had to be supplied to the Units by the Union.

27. There is another method of looking at this case. As already indicated in this case, It seems the Beacon Project people did not intend to commit any theft but as they found this fire wood lying at various places on the river side and it was unmarked they thought that they had every right to take it away and use it. When ultimately it turned out that the fire wood belonged to the plaintiff, they are bound to make good the loss to him. As observed in the Supreme Court authority viz: Dhian Singh Sobha Singh and Another Vs. The Union of India (UOI), if the chattel or the goods of the plaintiff have been kept by the servant of the Union of India they are bound to compensate the plaintiff by paying him the price of the goods.

28. A Division Bench of this court in Girdhari Lal v. State of Jammu and Kashmir, Civil first appeal No. 66 of 1968 D/- 3.5.1968 (J & K) took the same view. There the stones. Bajri and Shingal which had been given on royalty to the plaintiff had been taken by different persons working under the Irrigation Department. The plaintiff brought a suit against the State for the price of the stones, Bajri etc: It was dismissed by the trial court The defence in that case was that the State was not liable and a further plea was taken that there was no privity of contract between the State and the contractor as no valid contract, according to the constitution, had been entered into between the plaintiff and the State, and as such a suit by the plaintiff against the defendant would not lie. The Division Bench applying the principle of Sec. 70 of the Contract Act held that the benefit had been received by the State without there being any express or valid contract the State was liable to make good the loss to the plaintiff.

29. From both these standpoints in our opinion the Union of India is liable to the appellant for the amount of Rs. 28.000/-

30. It was further argued by the learned counsel for the appellant that the appellant should be given interest for the amount that may be found due to him. He has referred to AIR 1924 Nag 348, AIR 1936 668 (Lahore) and AIR 1943 240 (Nagpur) . In AIR 1924 Nag. 348 it is held that :-

Court may in proper cases award interest u/s 34 though it has ceased or is not due for any reason

In AIR 1936 668 (Lahore) it has been held that:-

Where in a case where future interest should have been given the lower court does not apply its mind at all to such question, there is no exercise of discretion by that court and interest can be granted in appeal.

In AIR 1943 240 (Nagpur) it has been held that interest pendente lite is one for the discretion of the court and can be granted by the court even though not pleaded.

31. The plaintiff has not claimed any interest in the original suit, therefore we do not propose to give him any interest upto the date of institution of the suit but as the grant of interest pendente lite is discretionary with the court, we think it a proper and a fit case in which we should allow the plaintiff interest pendente lite at the rate of 6% per annum from the date of the institution of the suit till the date of his final satisfaction.

32. We therefore set aside the decree of the learned Single Judge dated 5th April. 1968 and decree the plaintiff appellants suit for Rs. 28.000/- with costs throughout and future interest from the date of the institution of the suit till the claim of the plaintiff is fully satisfied at the rate of 6% per annum. The decretal amount shall be paid to the plaintiff by the Union of India within two months from todays date.

Mian Jalal-Ud-Din, J.

33 I agree.

Appeal allowed.