HONOURABLE SRI JUSTICE B.PRAKASH RAO & HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL Nos:1110 OF 2002 & 1137 of 2002 Dated 17-08-2009 WRIT APPEAL No. 1110 OF 2002 Between: 1. The Joint Collector, Visakhapatnam and another. …Appellant. And: 1. Gajuwaka Steel City Lorry Owners, Welfare Association, represented by its Vice President, Uppalapati Varahalaraju and another. ….Respondents. WRIT APPEAL No. 1137 OF 2002 Between: 1. Govt. of A.P. represented by Secretary for Civil Supplies Department, Secretariat, Hyderabad and another. …Appellant. And: Hindustan Petroleum Corpn. Ltd., rep. By Chief Installation Manager Y.K.Gawali at Visakha Terminal, Visakhapatnam and another. ….Respondents. HONOURABLE SRI JUSTICE B.PRAKASH RAO & HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL Nos.1110 OF 2002 & 1137 of 2002 COMMON JUDMENT: (Per the Honourable Sri Justice B.Prakash Rao) Since a common question is involved in both the appeals, arising out of writ petition Nos.26270 of 2001 and 4858 of 1996 respectively, the same are taken up together and are being disposed of by this Common Judgment. State Government is the appellant in both the appeals. The facts leading to the filing of the appeals are briefly stated as follows: On 10-10-1995, the Inspector of Police, Vigilance Cell, Civil Supplies, Visakhapatnam seized 440 drums of Bitumen under the Essential Commodities Act from Hindustan Petroleum Corporation Limited (HPCL) and the said stock was handed over to Gajuwaka Steel City Lorry Owners Welfare Association, Visakhapatnam-(petitioner in W.P.No.26270 of 2001) for safe custody. By proceedings dated 12-2- 1996, the Joint Collector, Visakhapatnam directed HPCL to remit the sale proceedings into the revenue deposits by way of a challan within seven days. Aggrieved by the same, HPCL filed W.P.No.4858 of 1996 seeking a declaration that the order of the Joint Collector under Section 6-A of the Act dated 12-2-1996 is void and unconstitutional. As the stock of Bitumen kept under the premises of the petitioner in W.P.No.26270 of 2001 was not cleared by the Government, W.P.No.26270 of 2001 was filed by the Gajuwaka Steel City Lorry Owners Welfare Association, Visakhapatnam, for a declaration that the action of the Government Authorities in not shifting the Bitumen kept under the safe custody of the petitioner pursuant to the seizure dated 10-10-1995 in connection with C.C.No.45 of 1995 is illegal, unjust and against the public interest and for a consequential direction to direct the Government Authorities to pay the expenditure incurred by the petitioner to keep the Bitumen in the premises of the petitioner as custodian with penal interest. The learned single judge, while disposing of the writ petition No.26270 of 2001 by the order impugned imposed exemplary costs of Rs.10,000/- payable by the Joint Collector, Visakhapatnam . The learned Single Judge also observed that if the HPCL has not already challenged the orders of the Joint Collector dated 12-2-1996 by way of an appeal, it is open to them to do so within a period of one week from the date of the order. Aggrieved by the said order, the Government has preferred the present appeals. The case of the petitioner in W.P.No.26270 of 2001 is that in spite of repeated requests made by it, the respondent authorities have not taken any action for removing the stock kept in their premises and therefore, the respondent-authorities having utilized the premises for keeping the Bitumen for nearly seven years are not justified in not paying the compensation. We have perused the order impugned. The learned Single Judge recorded a finding that having regard to the facts and circumstances of the case, the petitioner has to serve a notice under Section 80 of the Code of Civil Procedure on the official respondents and has to file an appropriate suit before the Civil Court claiming damages, both against the Joint Collector, Visakhapatnam and/or HPCL Visakhapatnam for the use and occupation of the premises. Having recorded the said finding, the learned single judge also directed the Joint Collector to pay exemplary costs of Rs.10,000/-. Having heard the learned counsel for the parties, we are of the view that the learned single judge having recorded a finding that the remedy of the petitioner is to approach the Civil Court and workout its remedies for claiming damages for which they are entitled to, following the due process of law, question of finding fault with the Joint Collector does not arise. Any claim for eviction or damages for illegal occupation of the premises can be remedied only by way of appropriate proceedings before the Civil Court. The learned Single Judge having taken note of the said principle, and having recorded the finding that it is the civil Court which is competent to consider the claim for damages, ought not to have imposed exemplary costs on the respondents. It is only in cases where the authorities have acted arbitrarily or with malafide intention and where such acts of the authorities have resulted in grave injustice to the other party, then only the writ Court, exercising extraordinary jurisdiction under Article 226 of the Constitution of India, in order to remedy the injustice caused to the party, may award exemplary costs. No arbitrariness or malafides are attributed against the Governmental Authorities, in not removing the seized stock from the premises of the petitioner immediately. Be that as it may, since the learned single Judge gave liberty to the petitioner to approach the Civil Court seeking damages for the use and occupation of the premises or the loss sustained by it, the learned Judge is not justified in imposing the exemplary costs.. In view of the above, we hold that imposing of exemplary costs cannot be sustainable. Therefore, the order of the learned Single Judge to the said extent is set aside. In the result, both the appeals are allowed as above. No order as to costs. ________________________ Justice B.PRAKASH RAO _______________________ Justice SANJAY KUMAR Dated 17th August, 2009. Dvs HONOURABLE SRI JUSTICE B.PRAKASH RAO & HONOURABLE SRI JUSTICE SANJAY KUMAR. WRIT APPEAL Nos. 1110 OF 2002 & 1137 of 2002 (Judgment of the Division Bench delivered by Hon’ble Sri B.Prakash Rao) Dated 17th AUGUST, 2009