WA/1407/2000 of State of Andhra Pradesh, rep. by its Chief Secretary, Vs M/s. J.K.Traders of Ramakrishna 70MM Theatre on 31 December 2010

COMMON JUDGMENT

(per the Honourable Justice A.GOPAL REDDY)

WA No.1407/2000 under Cl.15 of the Letters Patent by (1) State ofAndhra Pradesh, represented by its Chief Secretary, Secretariat Buildings, Hyderabad; (2) District Collector and District Magistrate, Hyderabad District,Hyderabad and (3) Commissioner of Police, Hyderabad, is directed against thejudgment/order dt. 28-8-2000 allowing WP No.15050/1993 by the learned singleJudge of this Court awarding compensation of one crore rupees for the damage ofthe property belongs to the writ petitioner on the aftermath of assassination oflate Rajiv Gandhi.

To put very shortly, the essential admitted facts, which give rise to filingof the writ petition, are thus:

Conclusion

On the wide spread news about assassination of late Rajiv Gandhi, thethen Prime Minister of this country on 21-5-1991, large scaleviolence erupted throughout the country including in the State of Andhra Pradesh,and twin cities of Hyderabad and Secunderabad on the night of 21-5-1991, wherelarge scale destruction of property, private and public, in different parts of theState. On coming to know about the incident of assassination and since Sri N.T.Rama Rao was the leader of opposition, the Manager of Ahwanam Hotels, Mr.Ramanaiah expressing fear of possibility of some attack on NTR Estates at Abidsreported to the police of Abids Police Station for providing necessary protection tosafeguard the properties. According to the Commissioner of police-thirdrespondent, Inspector of Police, Abids Police Station informed about the non-availability of police force at the police station, but around 23-30 hours, the thenCommissioner of Police instructed Ramesh Kumar, S.I. of Abids Police Station todeploy police force at the house of Sri N.T.Rama Rao and also at N.T.R. Estates,Abids. Accordingly, police picket was posted at the residence of Sri N.T. RamaRao at Abids. According to the petitioner, the police could not move in the matterand delayed the steps to be taken to protect the interests of NTR Estatesincluding Ramakrishna 70 MM theatre. In the meanwhile, about 150 persons hadgathered outside the theatre and while they were making attempts to enter intothe N.T.R. Estates, Ramanaiah, Manager of Ahwanam Hotel passed on theinformation to various persons but could not receive any help from anyoneespecially from the police. Even police who came to the spot did not take steps toprevent the damage to N.T.R. Estates and played a second fiddle to the men inpower and the mob gathered there were belonging to the Congress Partyworkers caused extensive damage to the theatre. The police did not take any

positive action to prevent from causing damage to the theatre though it could havebeen possible. After the damage was caused, the Commissioner of Policedeputed one Mr. Siva Shanker, Additional Commissioner of Police to enquire intothe situation leading to the damage of the theatre. He conducted personal enquiryand submitted his report finding the police officers guilty of dereliction of dutiesand they have irresponsibly behaved in preventing the property in question. TheGovernment of Andhra Pradesh appointed a Commission of Inquiry underSection 3 of the Commission of Inquiry Act, 1952 consisting of a single memberviz., Sri Justice M.R.A.Ansari, a retired Chef Justice of Jammu & Kashmir HighCourt, through G.O.Ms.No.511, General Administration (Genl.B) Department dt.22-8-1991 as one-Man Commission to enquire into the widespread incidents ofviolence involving destruction of properties occurred in several places in AndhraPradesh following the assassination of Sri Rajiv Gandhi in Tamil Nadu on thenight of 21-5-1001. The Commission submitted its report to the Government on20-6-1992 with its findings in terms of the reference made to it. One ManCommission found that the violent reaction did not lead to attack on publicproperty as generally happened but to attack on private property belonging tothe members of the opposition parties in the State, especially Telugu DesamParty. According to the petitioner, the Commission found guilty of the police fordereliction of duty in preventing damage to the property in NTR Estates. TheCommissioner of Police also found guilty of not taking action on the basis of thereport of the Additional Commissioner of Police, Siva Shankar. The petitioner gotthe damage suffered was assessed through Insurance Loss Assessor. Based onwhich, the District Collector & District Magistrate, Hyderabad issued a certificatedt. 12-11-1991 certifying that the petitioner suffered a loss to a tune ofRs.1,51,50,000/-. Complaining the inaction on the part of the police, the petitionerfiled the writ petition contending that the maintenance of law and order is theprimary duty of the State and while enforcing law and order, prevention of crime isa primary duty of the State. Thus, the police and the State have totally failed togive protection to the property of the petitioner and in spite of approaching thepolice suspecting that unruly hooligans may took the advantage of the situationunder their control and may ransack the property belongs to the opposition partyleader, the police allowed the unruly hooligans in ransacking the N.T.R. Estatesand set fire to it. As it is a violation of the fundamental right as well as constitutional right, the petitioner is entitled to compensation for the loss sufferedby him on account of the inaction on the part of the police authorities.

A counter-affidavit has been filed on behalf of the State of AndhraPradesh by Special Officer (Law & Order) to Government of Andhra Pradesh,General Administration Department, Hyderabad stating that news about theassassination of Sri Rajiv Gandhi was received around 11 PM on 21-5-1991. Thegrief stricken people carried away emotions came out into streets to protestagainst the incident in several parts of the State. Unsocial elements indulged insome violent acts of arson and caused damage to private and public properties. Immediately, on receipt of the news, the State Administration had swung intoaction and a Special Control Room was opened at State Headquarters by 11 PMon 21-5-1991. It functioned continuously under the direct and personalsupervision of the Chief Secretary. A core group of Senior IAS Officers was alsodrafted to monitor the law and order situation in all the Districts. The Collectorsand District Magistrates were instructed over telephone personally from 11PM onwards for taking all precautionary measures and for effective maintenanceof law and order. The Director General and Inspector General of Police contactedall the senior police officers and gave instructions in that regard. The Army wascalled in and Flag march was arranged in selected places of Hyderabad on 22-5-1991. The situation which was sufficiently grave on the intervening night of21/22-5-1991 was effectively brought under control. An Official Committee wasconstituted with Sri Sarjit Ray, IAS as Chairman with three members to assessthe damages caused to the private and public properties and to make suitablerecommendations for relief. The Committee assessed the damage and submittedits report on 17-7-1991. Simultaneously, Sri Justice M.R.A. Ansari, a RetiredChief Justice of Jammu & Kashmir has been appointed as One Man Commissionunder the Commission of Inquiry Act, 1952 to inquire into the incidents followingthe death of Sri Rajiv Gandhi. The Committee, which assessed the damages, hasreported a total number of 3017 cases of damage to private property andestimated the total value of damages at Rs.7.39 crores. The Committee hassimilarly reported 170 cases of the damage to public property, the estimated totaldamage of which is Rs.1.62 crores. The Government on examining therecommendations of the Official Committee, which assessed the loss, issued orders in G.O.Ms.No.497, General Administration (General.B) Department, dt. 12-8-1991 extending relief in different category of cases. Exgratia as a grant wassanctioned and paid in cases of petty shops with annual business turnover uptoRs.20,000/-. Approximately an amount of Rs.50 lakhs was incurred by theGovernment towards payment of exgratia as a grant only. Concessions wereextended to the damaged larger business establishments like ricemills/hospitals/petrol bunks/cinema theatres, but no exgratia relief will be paid tosuch establishments. They were granted the following facilities:

Number of officers in Police Department were kept under suspension, pendingenquiry, and the memorandum of A.T.R. (Action Taken Report) was placed on thehouse on 18-12-1993. The petitioner-theatre was granted Rs.20 lakhsinterest free loan and also certain other benefits. It is further stated that Sri N.T.Rama Rao, the father of the writ petitioner filed WP No.167/1993 before theSupreme Court seeking similar relief. (The same was dismissed for non-prosecution on 1-11-1996). There is no failure on the part of the District Collector, Hyderabad and Commissioner of Police, Hyderabad, who arepart of the government machinery since they have taken all steps and measuresto control the violence and within few hours the violence was curtailed. Whiledenying the contention of the petitioner that the State is liable to paycompensation to the extent of full loss as assessed by the Government, the

respondents submitted as follows:

(a) Every citizen is responsible for the protection of his own life andproperty. The State cannot give guaranteed protection to every citizen inrespect of these in all circumstances as such a guarantee is not feasiblepractically. But, however, in this case, the government has taken all stepsto prevent the violence and within few hours, the situation was undercontrol.

(b) In an economy like ours where risk can be covered under insurance, thevery fact that insurance is available would indicate that the state would notbe responsible for hundred per cent protection for individual life, andproperty. At the same time, it is not denied that the State has no objectionto maintain law and order. In view of the vast size of the country and thedifferent fissiparous forces, it is not a practical proposition to expect thestate to maintain a man to man cover to watch the life and property ofevery citizen. The citizens also shall observe their fundamental duties.

(c)

If any theory that the State is liable to pay compensation for anydamages suffered by an individual is to be accepted, the burden on therest of the community will be enormous and the State will have to imposean unbearably heavy burden of taxes and rates on other normal citizenswho safeguard or insure their own properties. This will be iniquitous.

(d) If the argument that the State is responsible to pay compensation forany damages suffered by an individual on account of a law and orderproblem is logically extended, the State would be liable to make good tothe individual even the losses suffered on account of their or any otheracts of individuals which is not a practical proposition.

(e) Whatever ex gratia is paid is by its very nature "out of grace" on ahumanitarian consideration being paid to tide over the immediate crisisand is in no way in the nature of compensation.

In the additional affidavit filed by the writ petitioner on 10-4-2000, it wasstated that the District Collector & District Magistrate, Hyderabad District, issued acertificate that the petitioner was attacked during the disturbances and the actualloss sustained by the petitioner was assessed at Rs.1,57,50,000/-. TheCommission of Inquiry was of the view that the workers of the Congress Party andanti-social elements were responsible for the several incidents although no leader of the Congress Party had organized or instigated various acts ofviolence. In spite of acceptance of the report of the Commission of Inquiry by theGovernment after discussing it in the Legislative Assembly and in spite ofCollector assessing the damage suffered by the petitioner in connection with theriots in question, the Government did not take any steps to pay compensation asdemanded by the petitioner. The petitioner has not received any amount from theinsurance company as some of the employees of the Insurance Company filed awrit petition and obtained stay of consideration of the claims.

In the additional counter-affidavit filed on behalf of the secondrespondent, it was stated that the Collector had issued a certificate to thepetitioner for availing the benefits of G.O.Ms.No.1509, Revenue (CT.III)Department dt. 1-10-1991, sanctioning relief to the victims who suffered loss ofproperty in the violent incidents and to arrange for loans by the Collectors fromFinancial Institutions at concessional rates. The Government has sanctioned asum of Rs.20 lakhs towards interest free margin money loan in terms ofG.O.Ms.No.1509 as a special case to the petitioner, vide Government MemoNo110647/CT.III dt. 7-3-91, and the same was drawn and paid by the CommercialTax Officer, Sultan Bazar Branch, Hyderabad. The Entertainment Officer, SultanBazar Circle, Hyderabad has reported that M/s. Ramakrishna 70 MM theatre wasclosed from 22-5-1991 to 7-5-1992 and an amount of Rs.16,60,764/- towards taxhas to be waived. The Commercial Tax Officer further reported that entertainmenttax has not been levied since theatre was closed. Absolutely there is no materialindicating the basis for issuance of certificate to the effect that the loss caused tothe petitioner is Rs.1,57,50,000/- except the figure given by the petitioner in theirletter dt. 1-11-1991.

A learned single Judge of this Court after considering the rivalsubmissions, was of the view that while considering the matter of compensationunder Art. 226 of the Constitution of India, courts have to adopt the principleapproximation and not the actuals and the compensation awarded must be fairand reasonable and commensurate with the damages and set backs faced by thevictim. Since the petitioner did not invoke the common law remedy by filing a suitand if he is relegated to the civil Court for claiming damages now, the claim wouldbe bared by limitation. Under those circumstances, the court feels that it is a fitcase that the court should award appropriate compensation and accordingly awarded compensation of Rs.1 crore for the damages suffered by the petitionermaking it clear that the petitioner shall refund the claim amount to the Governmentas and when received from the insurance company and directed the respondentsto pay the said amount to the petitioner within a period of 3 months from the dateof receipt of a copy of the order, failing which it shall carry interest @ 18 per centfrom 7-10-1993, the date on which the writ Petition was admitted till the date ofpayment.

Questioning the same, the present writ appeal No.1407/2000 has beenfiled by the respondents in WP No.15050/1993. One Mr. G. Malleswara Rao, apubic spirited person (third party) filed WA (SR) No.102605/2000 seeking samerelief.

Sri Sriram, learned Special Government Pleader representing theAdvocate General contended that in the absence of any specific avermentpointed out that there is violation of fundamental rights guaranteed underArts.14, 19 and 21 of the Constitution of India except making a general and vagueallegation that the property of the writ petition was damaged, the learned singleJudge is not justified in holding that since the petitioner had suffered huge losson account of the positive inaction on the part of the State Machinery whichresulted in gross violation of fundamental rights under Arts. 19 and 21 of theConstitution of India, he is entitled for reasonable and appropriate compensation.When the petitioner alleged failure of Government and its officials in protectingthe properties from destruction out of large scale vandalism, it should bespecifically pleaded how the attacks were made and what is the property whichwas damaged, and all these are matters that can be decided on specificpleadings and the evidence let in civil proceedings but the same cannot be thesubject matter of enquiry under Art. 226 of the Constitution unless fundamentalrights have been violated. Right to hold property is not a fundamental right and itis only the constitutional right under Art. 300A. All the cases on which reliancehas been placed by the learned single Judge are cases decided where State orits officials infringed the fundamental rights guaranteed under Art.21 of theConstitution. Justice M.R.A. Ansari in his report concluded that the violentincidents were not organized by the Congress Party or their leaders much less bythe Chief Minister or his Ministers but were spontaneous in nature, but however was of the view that the Congress workers were actively involved in all theincidents and the attack by them was against the members of the oppositionparties and police must be held to be guilty of dereliction of duty and theCommissioner of Police, Hyderabad ought to have taken action on the basis ofthe report of the Additional Commissioner of Police and the finding recorded bythe learned single Judge is contrary to the One-man Commission Report. Thereason for issuance of certificate by the Collector was explained in the additionalcounter filed by the respondents to the additional affidavit of the petitioner that thecertificate was issued only for the purpose of availing the benefits in terms ofG.O.Ms.No.1509. Unless the petitioner establishes deliberate inaction on the partof the police, learned single Judge is not justified in awarding compensation inthe absence of any objective material to assess the same. Further, the learnedsingle Judge having held that matter requires evidence proceeded to awardcompensation on the ground that if the petitioner is relegated to the civil court forclaiming damages, the claim would be barred by limitation. Since the petitionercan invoke Sec.14 of the Limitation Act, learned single Judge ought to haverelegated the parties to the civil Court to claim damages for the inaction on thepart of the police officials. Further awarding interest at 18% on the damagesawarded is not in tune with the principles governing award of interest.

Sri I.Mallikarjuna Sarma, learned counsel for the appellant in WA (SR)No.102605/2000 while adopting the arguments of the learned SpecialGovernment Pleader would contend that the discretion exercised by the learnedsingle Judge awarding damages is improper unless negligence of the officers has been established in resulting damages. In all the cases referred to by thelearned single Judge, the Supreme Court awarded compensation for deprivationof rights guaranteed under Art. 21, therefore damage caused to the propertycannot be equated with infringement of right guaranteed under Art. 21 of theConstitution.

Sri M.R.K. Chowdhary, learned Senior Counsel for the respondent-writpetitioner while sustaining the judgment under appeal would contend that it is theduty of the State to protect the property of all citizens and Art. 294 of theConstitution of India include tortious liability, and the Government of a state maysue or be sued by the name of the State in relation to suits and other proceedingsunder Art. 300 and State cannot disown the action of its officers and only public law remedy for such act is available to citizen but not by way of civil suit whereconstitutional rights of the citizen have been violated either due to the action ofthe State or inaction on the part of its officials. It is not possible for the petitioner tomention exact loss suffered by him in a petition filed under Art.226 of theConstitution, suffice it is established that damage was caused to the property dueto the inaction on the part of the State Officials or dereliction of their duty. Oncethere is no dispute about the reports of Justice M.R.A. Ansari and Mr. SivaShankar, in the absence of any material produced by the State in support of itscontention that amount of damage claimed is exorbitant certificate issued by theCollector can be taken as basis for awarding compensation.

For maintainability of the writ petitions, reliance is placed on the following decisions:

1. UTTAR PRADESH STATE COOPERATIVE LANDDEVELOPMENT BANK LIMITED VS. CHANDRA BHANDUBEY[[1]]DEVELOPMENT BANK LIMITED VS. CHANDRA BHANDUBEY[[1]]

2. RABINDRA NATH GHOSAL VS. UNIVERSITY OFCALCUTTA[[2]]CALCUTTA[[2]]

3. COMMON CAUSE (A REGISTERED SOCIETY) VS. UNIONOF INDIA[[3]]OF INDIA[[3]]

4. M. NAGA VENKATA LAKSHMI VS. VISKHAPATNAMMUNICIPAL CORP.[[4]]MUNICIPAL CORP.[[4]]

5. SUBE SINGH VS. STATE OF HARYANA[[5]]

6. M. S. GREWAL VS. DEEP CHAND[[6]]

After deletion of Art. 19 (1)(f) by inserting Art.300A, right to life includes right tohold property for his decent living and falls under Art.21 of the Constitution. Decent living is a right to life under Art.21. The successive Collector, withoutproducing the record, cannot plead that certificate was issued on the request ofthe petitioner.

I n NILABATI BAHERA V. STATE OF ORISSA[[7]]and N.NAGENDRARAO & Co., STATE OF ANDHRA PRADESH[[8]], the SupremeCourt created new trend in the field of states liability to protect the preciousfundamental and human rights of individual and uphold the Rule of Law.

For the tortious liability of the State, reliance is placed on the following decisions:

1. NILABATI BEHERA V. STATE OF ORISSA (7 supra)

2. CONSUMER EDUCATION AND RESEARCH CENTRE

VS. UNION OF INDIA[[9]]

3. LUCKNOW DEVELOPMENT AUTHORITY VS. M. K.GUPTA[[10]]GUPTA[[10]]

4. CHAIRMAN, RAILWAY BOARD VS. CHANDRIMADAS[[11]]DAS[[11]]

5. D. K. BASU VS. STATE OF WEST BENGAL[[12]]6.IN RE: DESTRUCTION OF PUBLIC AND PRIVATEPROPERTIES VS. STATE OF A. P.[[13]]6.IN RE: DESTRUCTION OF PUBLIC AND PRIVATEPROPERTIES VS. STATE OF A. P.[[13]]

7. NATIONAL HUMAN RIGHTS COMMISSION VS. STATEOF ARUNACHAL PRADESH[[14]]OF ARUNACHAL PRADESH[[14]]

For award of compensation for damages caused to the property on account ofarson and looting consequent to the large-scale violence erupted in aproceedings under Art. 226 of the Constitution, the learned Senior Counsel wassought to rely upon the judgments of the following High Courts as well as theSupreme Court.

1. R. GANDHI V. UNION OF INDIA[[15]]

2. M/s. INDERPURI GENERAL STORE V. UDI[[16]]

3. WAF ALALAULAD V. M/S.SUNDERDAS DOULATRAM[[17]]

4. P.A.KULKARNI V. STATE OF KARNATAKA[[18]]

5. RANCHI BAR ASSOCIATION V. STATE OF BIHAR[[19]]

6. P. GANGADHARAN PILLAI V. STATE OF KERALA[[20]]

7. S.S. AHLUWALIA V. UNION OF INDIA[[21]]

8. VOLGA TELLIS V. BOMBAY MUNICIPALCORPORATION[[22]]CORPORATION[[22]]

9. K.V. JOSEPH V. STATE OF KERALA[[23]]

10. PPM THANGAIH NADAR FIRM V. GOVERNMENT OFTAMIL NADU[[24]]

In the light of the submissions as referred to above, the questions thatarise for consideration are:

1. Whether writ petition under Art. 226 of the Constitutionseeking compensation for deprivation of property ismaintainable or not?

2. How far the State is vicariously liable for the inaction of itofficials, which resulted in damage to the property of thecitizens?

POINT NO.1: Before we proceed to answer Point No.1, it isappropriate to consider the constitutional framework; laws dealing with propertyrights of citizens in brief and decided cases on which reliance is placed by thelearned Senior Counsel for the writ petitioner.

Prior to 44[th] Amendment to the Constitution, sub-clause(f) of Cl.(1) of Art. 19, which guaranteed the right to acquire and hold property, wasa fundamental right and the same has been omitted by Constitution (44[th]Amendment) Act, 1978. The effect of insertion of Art.300A is right to hold propertyhas ceased to be a fundamental right, which can be deprived of a person byauthority of law. If one’s property is taken away by the Executive without theauthority of law, he would still be entitled to legal relief on the ground that suchexecutive action is in contravention of Art.300A, which reads “No person shall bedeprived of his property save by authority of law”. Since the provisions of Art.300Ahas been brought outside the purview of Part.III, the aggrieved individual wouldnot be competent to move the Supreme Court under Art.32 and aggrievedindividual would move the High Court under Art. 226 or by a civil suit for violationof any constitutional right. Deprivation of property may take place in various ways,such as destruction or confiscation or revocation of a proprietary right granted bya private proprietor, seizure of goods or immovable property from the possessionof an individual or assumption of control of a business, in exercise of the sovereign power of a State. In all those contingencies, there is a ‘deprivation’. If

the local authority or the State Government in exercise of any statutory powertakes away the possession of the property, the remedy if not provided under therelevant statute, a person can move the High Court under Art.226 of theConstitution. If the municipal authority pulls down the premises for widening of theroad without issuing any notice, or deprivation of the property or business placeof any person or business, a citizen can move the High Court for compensationfor illegal or unlawful acts of the State or its instrumentalities. It comprehendsacquisition for public purpose by law enacted by State Legislature or Parliamentor by statutory rules, regulations or orders having force of law and not byexecutive fiat or order. Where deprivation is in exercise of police power withoutfollowing the procedure established by law, a citizen can move the High Court tosee that the State or its instrumentalities to follow the rule of law when suchdeprivation is imminent.

In NILABATI BAHERA V. STATE OF ORISSA (7 supra), JusticeJ.S.Verma on behalf of himself and Justice Venkatachala after reviewing the caselaw on the subject, in Rudul Sah v. State of Bihar (1983) 4 SCC 141),SebastianM. Hongray v. Union of India (1984) 1 SCC 339),Sebastian M. Hongray v. Unionof India (1984) 3 SCC 82),Bhim Singh v. State of J & K(1984 Spp.SCC 504),Bhim Singh v. State of J & K (1985) 4 SCC 677),Saheli: A Women’s ResourcesCentre v. Commissioner of Police, Delhi Police Headquarters (1990) 1 SCC 422)and State of Maharashtra v. Ravikant S. Patil (1991) 2 SCC 373), with regard toviolation of fundamental right by State’s instrumentalities or servants, whether theState can be directed to pay compensation to the victim or his heir by way of‘monetary amends” held that ‘a claim in public law for compensation’ forcontravention of human rights and fundamental freedoms, the protection of whichis guaranteed in the Constitution, is an acknowledged remedy for enforcementand protection of such rights, and such a claim based on strict liability made byresorting to a constitutional remedy provided for the enforcement of a fundamentalright is ‘distinct from, and in addition to, the remedy in private law for damages forthe tort’ resulting from the contravention of the fundamental right.”

Justice J.S.Verma while concurring with the view expressed in BHAGALPUR BLINDING CASES; KHATRI (II) V. STATE OF BIHAR (1981) 1SCC 627); KHATRI (IV) V. STATE OF BIHAR (1981) 2 SCC 493); and the view of Misra, CJ in UNION CARBIDE CORPORTION V. UNION OF INDIA (1991) 4SCC 584), and also the view of Venkatachalaiah, J (as he then was) whorendered the leading judgment in BHOPAL GAS CASE (1991) 4 SCC 584)further held that “ if the guarantee that deprivation of life and personal libertycannot be made except in accordance with law, is to be real, the enforcement ofthe right in case of every contravention must also be possible in the constitutionalscheme, the mode of redress being that which is appropriate in the facts of eachcase. This remedy in public law has to be more readily available when invokedby the have-nots, who are not possessed of the wherewithal for enforcement oftheir rights in private law, even though its exercise is to be tempered by judicialrestraint to avoid circumvention of private law remedies, where more appropriate.”

Dr. Justice J. Anand while concurring with the judgment of the J.S.Verma and Venkatachala,JJ, held as under:

“The public law proceedings serve a different purpose than the private lawproceedings. The relief of monetary compensation, as exemplary damages, inproceedings under Article 32 by this Court or under Article 226 by the High Courts,for established infringement of the indefeasible right guaranteed under Article 21 ofthe Constitution is a remedy available in public law and is based on the strictliability for contravention of the guaranteed basic and indefeasible rights of thecitizen…(para 34)

Dr. Justice J. Anand while considering the question for grant of relief to the heirsof a victim of custodial death for the infraction or invasion of his rights guaranteedunder Art.21 of the constitution held that “it is not always enough to relegate himto the ordinary remedy of a civil suit to claim damages for the tortious act of theState as that remedy in private law indeed is available to the aggrieved party”. Itwas also further held that “relief in exercise of the power under Article 32 or 226would be granted only once it is established that there has been an infringementof the fundamental rights of the citizen and no other form of appropriate redressalby the court in the facts and circumstances of the case, is possible.

In CONSUMR EDUCATION & RESEARCH CENTRE V. UNION OF

INDIA (9 supra), the Supreme Court while considering the remedial measures tobe taken for the protection of the health of the workers engaged in mines andasbestos industries with adequate mechanism for and diagnosis and control ofthe silent killer disease ‘asbestosis’ held that “in public law claim forcompensation is a remedy available under Articles 32 or 226 for the enforcement and protection of fundamental and human rights. The defence of sovereignimmunity is inapplicable and alien to the concept of guarantee of fundamentalrights. There is no question of defence being available for constitutional remedy. Itis a practical and inexpensive mode of redress available for the contraventionmade by the State, its servants, its instrumentalities, a company or a person in thepurported exercise of their powers and enforcement of the rights claimed eitherunder the statutes or licence issued under the statute or for the enforcement ofany right or duty under the Constitution or the law.”

In LUCKNOW DEVELOPMENT AUTHROITY V. M.K.GUPTA (10supra), the Supreme Court while deciding the question that whether the statutoryauthorities such as Lucknow Development Authority or Delhi DevelopmentAuthority or Bangalore Development Authority constituted under State Acts tocarry on planned development of the cities in the State are amenable toConsumer Protection Act 1986 for any act or omission relating to housing activitysuch as delay in delivery of possession of the houses to the allottees, non-completion of the flat within the stipulated time, or defective and faultyconstruction etc., and if the housing activity carried on by the statutory authority orprivate builder or contractor came within the purview of the Consumer ProtectionAct,1986 only after its amendment by the Ordinance No. 24 in 1993 or theCommission could entertain a complaint for such violations even before, held thatthe Commission or the Forum in the Consumer Protection Act, 1986 is entitled toaward not only value of the goods or services but also to compensate aconsumer for injustice suffered by him.

In CHAIRMAN, RAILWAY BOARD V. CHANDRIMA DAS (11 supra),the Supreme Court after referring to the various aspects of the public law field andafter considering various decisions, where compensation was awarded for thetortious acts committed by the officials of the State and also cases relating tocustodial deaths and those relating to medical negligence in Nilabati Behera v.State of Orissa (7 supra); State of M. P. v. Shyam Sunder Trivedi (1995) 4 SCC262); People's Union for Civil Liberties v. Union of India (1997) 3 SCC 433) andKaushalya v. State of Punjab (1996) 7 SCALE (SP) 13); Supreme Court LegalAid Committee v. State of Bihar (1991) 3 SCC 482 ; Dr. Jacob George v. State ofKerala (1994) 3 SCC 430); Paschim Bangal Khet Mazdoor Samity v. State of West Bengal and Ors. (1996) 4 SCC 37); and Mrs. Manju Bhatia v. New DelhiMunicipal Council (1997) 6 SCC 370), while rejecting the contention that thevictim should have approached the civil court for damages and the matter shouldnot have been considered in a petition under Art. 226 of the Constitution held thatwhere the public functionaries are involved and the matter relates to the violationof fundamental rights or the enforcement of public duties, the remedy would stillbe available under the public law notwithstanding that a suit could be filed fordamages under private law.

In D.K.BASU V. STATE OF W.B (12 supra), the Supreme Court whileentertaining the public interest writ petition on the basis of a letter addressed bythe Executive Chairman, Legal Aid Services, West Bengal, a non-political organization drawing the attention of the Supreme Court to certain news itemspublished in newspapers regarding deaths in police lockups and custody, whilelaying down the following requirements to be followed in all cases of arrest ordetention till legal provisions are made in that behalf as preventive measures;

(1) The police personnel carrying out the arrest and handling the interrogation ofthe arrestee should bear accurate, visible and clear identification and name tagswith their designations. The particulars of all such police personnel who handleinterrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare amemo of arrest at the time of arrest and such memo shall be attested by at leastone witness, who may be either a member of the family of the arrestee or arespectable person of the locality from where the arrest is made. It shall also becountersigned by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in apolice station or interrogation centre or other lock-up, shall be entitled to have onefriend or relative or other person known to him or having interest in his welfarebeing informed, as soon as practicable, that he has been arrested and is beingdetained at the particular place, unless the attesting witness of the memo of arrestis himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notifiedby the police where the next friend or relative of the arrestee lives outside thedistrict or and through the Legal Aid Organisation in the District and the policestation of the area concerned telegraphically within a period of 8 to 12 hours afterthe arrest.

(5) The person arrested must be made aware of this right to have someoneinformed of his arrest or detention as soon as he is put under arrest or is detained.(6) An entry must be made in the diary at the place of detention regarding thearrest of the person which shall also disclose the name of the next friend of theperson who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of hisarrest and major and minor injuries, if any, present on his/her body, must berecorded at that time. The "inspection Memo" must be signed both by the arresteeand the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctorevery 48 hours during his detention in custody by a doctor on the panel ofapproved doctors appointed by Director, Health Services of the concerned State orUnion Territory, Director, Health Services should prepare such a panel for allTehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above,should be sent to the (sic) Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, thoughnot throughout the interrogation.

(11) A police control room should be provided at all district and State headquarters,where information regarding the arrest and the place of custody of the arresteeshall be communicated by the officer causing the arrest, within 12 hours ofeffecting the arrest and at the police control room it should be displayed on aconspicuous police board.

held that “award of compensation for established infringement of the indefeasiblerights guaranteed under Article 21 of the Constitution is a remedy available inpublic law since the purpose of public law is not only to civilise public power butalso to assure the citizens that they live under a legal system wherein their rightsand interests shall be protected and preserved. Grant of compensation inproceedings under Article 32 or 226 of the Constitution of India for the establishedviolation of the fundamental rights guaranteed under Article 21, is an exercise ofthe Courts under the public law jurisdiction for penalising the wrong doer andfixing the liability for the public wrong on the State which failed in the discharge ofits public duty to protect the fundamental rights of the citizen.” After adverting tothe NILABATI BEHERA V. STATE OF ORISSA (7 supra) and various Englishdecisions, the Supreme Court summed up the legal position as follows:

“…. it is now a well accepted proposition in most of the jurisdiction, that monetary orpecuniary compensation is an appropriate and indeed an effective and sometimes perhapsthe only suitable remedy for redressal of the established infringement of the fundamentalright to life of a citizen by the public servants and the State is vicariously liable for theiracts. The claim of the citizen is based on the principle of strict liability to which thedefence of sovereign immunity is not available and the citizen must receive the amount ofcompensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatoryand not on punitive element. The objective is to apply balm to the wounds and not to

punish the transgressor or the offender, as awarding appropriate punishment for the offence(irrespective of compensation) must be left to the Criminal Courts in which the offender isprosecuted, which the State, in law, is duly bound to do. The award of compensation in thepublic law jurisdiction is also without prejudice to any other action like civil suit fordamages which is lawfully available to the victim or the heirs of the deceased victim withrespect to the same matter for the tortious act committed by the functionaries of the State.The quantum of compensation will, of course, depend upon the peculiar facts of each caseand no strait-jacket formula can be evolved in that behalf. The relief to redress the wrongfor the established invasion of the fundamental rights of the citizen, under the public lawjurisdiction is, thus, in addition to the traditional remedies and not in derogation of them.The amount of compensation as awarded by the Court and paid by the State to redress thewrong done, may in a given case, be adjusted against any amount which may be awardedto the claimant by way of damages in a civil suit. (para 54)

In N.H.R.C. V. STATE OF ARUNACHAL PRADESH (14 supra), theSupreme Court while entertaining the petition under Art. 32 filed by the NationalHuman Rights Commission to enforce the rights under Art. 21 of the Constitutionof Chakma/Hajong tribals, who are being persecuted by sections of the citizens ofArunachal Pradesh observed that by refusing to forward the applications of theChakmas to the Central Government, the Deputy Commissioner is failing in hisduty and is also preventing the Central Government from performing its dutyunder the Citizenship Act, 1955 and the Citizenship Rules, 1955.

In U.P. STATE COOP.LAND DEVELOPMENT BANK LTD., V.CHANDRA BHAN DUBEY (1 supra), while considering the question whetherU.P. State Coop. Land Development Bank Ltd., is an authority and aninstrumentality of the State land as such amenable to the writ jurisdiction of theHigh Court for setting aside the dismissal order passed against the its employees,the Supreme Court while observing that the language of Art.226 does not admit ofany limitation on the powers of the High Court for the exercise of jurisdictionthereunder held that the U.P. State Coop. Land Development Bank is anauthority controlled by the State Government and the service conditions of theemployees of the appellant, U.P. State Coop. Land Development Bank, particularly with regard to disciplinary proceedings against them are statutory innature and thus the writ petition was maintainable against the appellant.

In RABINDRANATH GHOSAL V. UNIVERSITY OF CALCUTTA (2supra), the facts are that appellant appeared for M.A., Examination and his resultwas not declared. The appellant took admission in Law Course and requested

the Controller of Examinations of Calcutta University to declare his result of theexamination and also wrote a letter to the Vice-Chancellor making a similarrequest. He filed a writ petition in the High Court of Calcutta for publication of hisresult. On filing writ petition, the result of the appellant was declared and he wasfound to have failed. A learned single Judge, who dealt with the matter,appointed a Committee presided over by a retired High Court Judge to investigatewhy the result had not been declared for so many years. The Committee, soappointed, gave its findings. Basing on the said findings, the learned Judge heldthat the University of Calcutta and the Vice-Chancellor should pay to theappellant a sum of Rs.60,000/- as monetary compensation and damages anddirected them to take appropriate action against the persons responsible. Onappeal being filed, a Division Bench of the Calcutta High Court held that on thefacts of this case, compensation should not have been awarded to the appellantbut the proper course would have been to leave the parties to agitate theirgrievances before a competent Civil Court. On further appeal, the SupremeCourt while confirming the judgment of the Division Bench of the Calcutta HighCourt and after extracting the observation made in NILABATI BEHERA V.STATE OF ORISSA (7 supra), held that “a claim in public law for compensationfor contravention of human rights and fundamental freedom, the protection ofwhich is guaranteed in the Constitution is undoubtedly an acknowledged remedyfor protection and enforcement of such right and such a claim based on strictliability made by resorting to a constitutional remedy, provided for the enforcementof fundamental right is distinct from, and in addition to the remedy in private lawfor damages for the tort, as was held by this Court in Nilabati Behera (7 supra). Itis in fact an innovation of a new tool with the Court which are the protectors of thecivil liberty of the citizens and the Court, in exercise of the same, would be in aposition to grant compensation when it comes to the conclusion that there hasbeen a violation of fundamental rights under Article 21”. The Supreme Courtfurther held that “before exemplary damages can be awarded it must be shownthat some fundamental right under Article 21 has been infringed by arbitrary orcapricious action on the part of the public functionaries and that the sufferer was ahelpless victim of that act”.

In COMMON CAUSE, A REGISTERED SOCIETY V. UNION OF INDIA

In COMMON CAUSE, A REGISTERED SOCIETY V. UNION OF INDIA

(3 supra) the Supreme Court while dealing with the review petition filed to reviewthe judgment dt. 25-9-1996 in COMMON CAUSE, A REGISTERED SOCIETY V.UNION OF INDIA (1996) 6 SCC 530), after referring to the decision of the PrivyCouncil in MAHARAJ V. ATTORNEY GENERAL OF TRINIDAD & TOBAGO(1978) 2 ALL.ER 670 (PC), wherein the appellant, who was a Barrister, wassentenced to 7 days' imprisonment by a Judge of the High Court, which was setaside by the Privy Council in appeal. The appellant applied for redress underSection 6 of the Constitution of Trinidad and Tobago on the ground that he wasdeprived of his liberty without due process of law as guaranteed to him underSection 1 of that Constitution. The claim was dismissed by the High Court, butwas upheld by the Privy Council holding that Section 6 of the Constitutionimpliedly allowed the High Court to award compensation as compensation maybe the only practicable form of redress in some cases, and also referring to theearlier judgment of it in N. NAGENDRA RAO & CO. STATE OF A.P=(1994) 6SCC 205), and various decisions of the Supreme Court and English Courts, heldthat the allotment of petrol outlets by the petitioner cannot be treated as an “act ofthe State” and the rule of immunity invoked by Mr. Parasaran cannot be accepted.Further, while dealing with the judgment awarding exemplary damages sought tobe reviewed, the Supreme Court after extracting definition of ‘tort’ in JOWEITT’SDICTIONARY OF ENGLISH LAW, reading as, “ 'Tort' has been derived from the Latin word "tortus" which means "twisted" or"crooked". In its original and most general sense, "tort" is a wrong Jowitt's Dictionaryof English Law defines Tort as under :

" ‘Tort signifies an act which gives rise to a right of action being a wrongful act or injuryconsisting in the infringement of a right created otherwise than by a contract. Torts aredivisible into three classes, according as they consist in the infringement of a jus inrem, or in the breach of a duty imposed by law on a person towards another person, orin the breach of a duty imposed by law on a person towards the public.

The first class includes (a) torts to the body of a person, such as assault, or to hisreputation, such as libel, or to his liberty, such as false imprisonment; (b) torts to realproperty, such as ouster, trespass, nuisance, waster, subtraction, disturbance; (c)torts to personal property, consisting (i) in the unlawful taking or detaining of ordamage to corporeal personal property or chattels; or (ii) in the infringement of apatent, trade mark, copyright, etc. ; (d) slander, of title; (e) deprivation of service andconsortium.

The second class includes deceit and negligence in the discharge of a private duty.The third class includes those cases in which special damage is caused to anindividual by the breach of a duty to the public. "

and after referring to the various earlier decisions of it and English decisionsallowed the revision petition recalling the direction for payment of Rs. 50 lakhs asexemplary damages as also the direction for a case being registered by the C. B.I. against the petitioner for Criminal Breach of Trust and investigation by them intothat offence and the further direction to investigate whether petitioner hascommitted any other offence.

In M. NAGA VENKATA LAKSHMI V. VISAKHAPATNAM MUNICIPALCORPORTION, (4 supra) the facts are that the appellant herein purchasedabout 167 sq. yard of vacant land in plot No. C/1and2, R. S. No. 52 (P) situate atBalayya Sastry's layout, Sitammadhara, Alipuram Extension Ward,Visakhapatnam by reason of a deed of sale dated 8-07-1982 in an unapproved layout and subsequently layout was approved. Plots belonging to others hadbeen regularized but the appellant’s plot was not regularized. On rejection of therepresentation made by the appellant to Visakhapatnam urban DevelopmentAuthority (VUDA), the appellant filed a writ petition before High Court of A.P. Thesaid writ petition was dismissed. The appeal being filed by the appellant has alsobeen dismissed. On further appeal, the Supreme Court after referring to theobservation made in CHAIRMAN, INDORE VIKAS PRADHIKARAN V. PUREINDUSRIAL COKE & CHEMICALS LTD., =(2007) 8 SCC 705), reading as“Property, while ceasing to be a fundamental right would, however, be givenexpress recognition as a legal right, provisions being made that no person shallbe deprived of his property save in accordance with law”, disposed of the appealremanding the matter to the High Court observing as follows”

“On what basis the layout plan had been drawn resulting in deprivation of a valuableright of the appellant, therefore, was required to be determined. Furthermore, if VUDAwanted to deprive the appellant from a valuable right of property, the question whichshould have been posed was as to whether therefor the authorities should haveacquired the property or not.”

In SUBE SINGH V. STATE OF HARYANA (5 supra), the Supreme Court after survey of the law evolved in last 2 ½ decades with regard to award ofcompensation as pubic law remedy for custodial violence/death or illegaldetention while concluding that there is no clear or incontrovertible evidenceabout custodial torture, nor any medical report of any injury or disability several of the allegations are proved to be exaggerated and false and it is not a fit case foraward of compensation. Since all reliefs which should be granted in such a case,have already been granted by ordering an inquiry by the CBI and ensuring thatthe Police officers named are prosecuted held that order will not come in the wayof any civil court awarding compensation in an action in tort or the criminal courtawarding compensation under section 357 Cr.P.C., in the pending prosecutionagainst any of the officers, if the charges are established and disposed of the writpetition with the above observations.

In M.S.GREWAL V. DEEP CHAND SOOD (6 supra), the facts are that14 children who were taken to picnic at Tandapatanindora on the bank of RiverBeas, and who were allowed to play in the danger zone of the water without anycaution or any warning being sounded, were entered into the water of ‘dibber’ andwere drowned. The parents of the unfortunate fourteen children moved the HighCourt by filing petition under Art.226 of the Constitution seeking relief by way ofan inquiry by CBI to find out the causes for the tragedy and fixation ofresponsibility therefore and punishment to the guilty ones together and with aprayer for adequate compensation from the school authorities. In which, the HighCourt ordered an inquiry to be conducted by CBI and allowed the writ petitionordering payment of compensation at R.5 lakhs each of the parents of the 14students who die in the incident and a sum of Rs.30,000/- each to each of theparents of the students who suffered due to the drowning incident. On appealbeing filed, the plea of non-maintainability of the writ petition filed for award ofcompensation though advanced at the initial stage of the submissions, the samewas not pressed. The Supreme Court after referring to its earlier decisions inNILABATI BEHERA V. STATE OF ORISSA (7 supra) and D.K. BASU V. STATEOF W.B (12 supra), and after considering the question whether the compensationaward is justifiable or not, upheld the award of compensation.

In OLGA TELLIS V. BOMBAY MUNICIPAL CORPORATION (22supra), the pavement dwellers and another moved the Supreme Court not to evict the pavement dwellers from their squalid shelters without being offered alternativeaccommodation and to protect their right to life guaranteed under Art.21 of theConstitution of India. The Supreme Court after referring the settled principle thatthe procedure prescribed by law for the deprivation of the right conferred by Art.

21 must be fair, just and reasonable and also referring to its earlier judgmentsheld as under:

“… as a mala fide act has no existence in the eye of law, even so,unreasonableness vitiates law and procedure alike. It is therefore essential that theprocedure prescribed by law for depriving a person of his fundamental right, in thiscase the right to life, must conform to the norms of justice and fairplay. Procedure,which is unjust or unfair in the circumstances of a case, attracts the vice ofunreasonableness, thereby vitiating the law, which prescribes that procedure andconsequently, the action taken under it. Any action taken by a public authoritywhich is invested with statutory powers has, therefore, to be tested by theapplication of two standards: The action must be within the scope of the authorityconferred by law and secondly, it must be reasonable. If any action, within thescope of the authority conferred by law, is found to be unreasonable, it must meanthat the procedure established by law under which that action is taken is itselfunreasonable. The substance of the law cannot be divorced from the procedurewhich it prescribes for, how reasonable the law is, depends upon how fair is theprocedure prescribed by it…(para 40)

In K.V.JOSEPH V. STATE OF KERALA (23 supra), a Division Benchof Kerala High Court while dealing with the writ petition filed seeking a writ ofProhibition restraining some of the respondents and PWD authorities andPanchayat authorities from embarking on further construction of the road or bridgethrough the properties belonging to the petitioners alleging that had any stepsbeen taken, the demolition of the residential house would not have taken placeand the law enforcement machinery had failed to provide protection to theproperties and persons of the petitioners, held that the relief to redress the wrongfor the established invasion of the fundamental rights of the citizen under publiclaw jurisdiction is in addition to the traditional remedies. It was further held “theincident that took place on 23. 9. 93, demolition of the building of the 4thpetitioner, was solely because of the inaction on the part of the police. Thisviolated the fundamental right guaranteed to the 4th petitioner under Art. 21 of theConstitution of India and the "administrative law of accountability" of respondents1 to 4, as held by the Supreme Court in Lucknow Development Authority v. M. K.Gupta ( (1994) 1 SCC 243), shall extend to compensate the 4th petitioner. Thiscourt exercising its power under Art. 226 of the Constitution can definitely grantcompensation in terms of the remedy available under Public Law based on strictliability for contravention of the fundamental rights”, and allowed the writ petition directing the respondents 1 to 4

to pay Rs.4,65,000/- to the petitioner No.4 as assessed in the commission reportwhich is not objected to by any of them as compensation, to enable her toreconstruct the building.

From the copious discussion of the judgments of the Supreme Court andvarious High Courts, it is abundantly clear that whenever a person is deprived ofhis property without following due procedure of law by the Government or itsofficials or Local Authority and if no remedy is provided under the relevant statutecan move the High Court under Art. 226 of the Constitution of India. Further apublic law remedy is available when invoked by the have-nots for deprivation oflife and livelihood and where the same is infraction or invasion of his rightsguaranteed under Art. 21 of the Constitution and relief under Art. 226 for paymentof compensation would be granted when it is established that there has beeninfringement of fundamental rights of the citizen enshrined under Art. 21 of theConstitution of India. The point No.1 is accordingly answered.

Point No.2:Before we proceed to answer point No.2, it is to be notedthat the entire case of the writ petitioner revolved upon the inaction/failure, on thepart of the State administration, particularly, police in preventing the damagecaused to the property of the writ petitioner in the riots ensued due to large scaleviolence on the aftermath of late Prime Minister Rajiv Gandhi. It is also settledprinciple that how far the State is liable to compensate the damage caused ineach case has to be decided on its own facts in the absence of anycomprehensive legislation governing the law of the State for the tortious actscommitted by its officials or tortious acts on the part of the officials of the State orvicarious liability for the inaction, negligence or dereliction of duty on the part ofthe Government Officials of the State Government.

It is not disputed that maintenance of law and order is a primary duty ofthe State. Entry 1 of List II of Schedule-VII of the Constitution of India deals withPublic Order. The State Legislature is given plenary authority to legislate on allmatters which relate to or are necessary for the maintenance of public order.

Public Order implies absence of violence and an orderly state of affairs,in which citizens can peacefully pursue their normal avocation of life. Anythingwhich disturbs public tranquility disturbs ‘public order’ (See: RAMESHTHAPPAR=AIR 1950 SC 124). Entry-1 (Public Order) includes ‘public safety’ in

its relation to the maintenance of ‘public order’. In short, ‘public order’ issynonymous with public peace, safety and tranquility, not only to the persons butalso to the property. Anything which disturbs the current of the life of thecommunity or property would amount to a disturbance of the ‘public order’.

Hyderabad City Police Act, 1348-F (for short “the Act”) is anexisting enactment to enforce law and order. Sec.22 of the Hyderabad CityPolice Act, 1348-F, (for short “the Police Act”) deals with powers of Commissionerand other Police Officer to give directions to the public. Under sub-section (3) ofSection 22, the Commissioner of City Police, Hyderabad may, at any time byorder in writing prohibit every kind of assembly or procession for such time asmay appear to him to be necessary and proper for preservation of peace andpublic safety. Under Sec. 23 of the Police Act, the Commissioner of City Police,Hyderabad may in order to suppress or prevent any riot or grave disturbancetemporarily close or take possession of any building or place and may exclude allor any persons therefrom or may allow them to enter the place on such conditionsas he may prescribe. Under Sec. 26 of the Police Act, whenever it appears to theCommissioner of City Police, Hyderabad that the movements or acts of anyperson residing in the City of Hyderabad are causing or likely to cause danger,alarm or harm to the life or property of any person or that there are reasonablegrounds to believe that such person is engaged or is about to be engaged in thecommission of an offence necessitating the use of force or violence or an offencepunishable under Chapters XII, XVI and XVII of the Indian Penal Code or is aboutto abet such offences. Under sub-section 5 of Section 26, the Government may, ifsatisfied that peace or public safety in the City of Hyderabad or in any part thereofis disturbed or is likely to be disturbed on account of a conflict between differentcommunities or groups or sections or gangs thereof, declare by a proclamationthat an emergency exists and after such proclamation of emergency has beenissued, if it appears to the Commissioner of City Police, Hyderabad that thepresence, movements or acts of any person in the city is or are causing or likely tocause danger or alarm or that a reasonable suspicion exists that such personhas a design to destroy public peace and tranquility, he may, by order in writing to be served on such person or by beat of drum or otherwise as he thinks fit,direct such person to conduct himself in such manner as in the opinion of theCommissioner may be reasonable or public safety or may direct such person to remove himself to such place and by such route or routes and within such time asthe Commissioner may prescribe, without disclosing any reason therefor.

From the above, it is evident that the Commissioner of City Police,Hyderabad is under statutory obligation to prevent any riot or grave disturbance or destruction of property; and to give instructions preventing any riot or gravedisturbance. He can take possession of any property into his custody or place byexcluding all or any persons therefrom and prohibit every kind of assembly orprocession for preservation of peace and public safety.

But in the case on hand, the question is whether the State is dutybound to safeguard the property of its citizens, and when it failed to safeguard theproperties, whether State is liable to compensate in public law remedy fordeprivation/destruction of property during riotous acts/strikes etc., In STATE OF A.P. V. CHALLA RAMAKRISHNA REDDY[[25]], the factsare that the respondent and others filed the suit for compensation against theState for negligence of Prison officials resulting death of a prisoner in jail. State ofAndhra Pradesh contested the suit on two principal grounds, namely, that the suitwas barred by limitation and that no damages could be awarded in respect ofsovereign functions as the establishment and maintenance of jail was part of thesovereign functions of the State and, therefore, even if there was any negligenceon the part of the Officers of the State, the State would not be liable in damagesas it was immune from any legal action in respect of its sovereign acts. Both thecontentions were accepted by the trial Court and the suit was dismissed. Onappeal, the suit was decreed by the High Court for a sum of Rs. 1,44,000-00 with interest at the rate of 6 per cent per annum from the date of the suit tillrealization. On further appeals, the Supreme Court while dealing with thelimitation to claim compensation against the State under Art.72 of the LimitationAct,1963, vis-à-vis limitation prescribed under Art.113 of the Limitation Act, 1993held that “ Articles 72 and 113 are applicable to different situations. In order toattract Article 72, it is necessary that the suit must be for compensation for doingor for omitting to do an act in pursuance of any enactment in force at the relevanttime. That is to say, the doing of an act or omission to do an act for whichcompensation is claimed must be the act or omission which is required by thestatute to be done. If the act or omission complained of is not alleged to be in pursuance of the statutory authority, Article 72 would not apply. Art.72 would beattracted to meet the situation where the public officer or public authority or, forthat matter, a private person does an act under power conferred or deemed to beconferred by an Act of the Legislature by which injury is caused to another personwho invokes the jurisdiction of the Court to claim compensation for that act. Thus,where a public officer acting bona fide under or in pursuance of an Act of theLegislature commits a "tort", the action complained of would be governed byArt.72 which, however, would not protect a public officer acting mala fide undercolour of his office. The Article, as worded, does not speak of "bona fide" or "malafide" but it is obvious that the shorter period of limitation, provided by Art.72,cannot be claimed in respect of an act which was malicious in nature and whichthe public officer or authority could not have committed in the belief that the actwas justifiable under any enactment.

In R. GANDHI V. UNION OF INDIA (15 supra), a learned singleJudge of Madras High Court while dealing with the public interest litigation for theinjuries suffered by section of community in Coimbatore in Tamil Nadu anddamage caused to their property and serious affecting their business in the wakeof assassination of Smt. Indira Gandhi, held that “under Art. 300 (A) of theConstitution, no person shall be deprived of his property save by authority of lawand to allow his properties to be reduced to ashes by the force of darkness andevil is a clear deprivation of the right to property guaranteed by the Constitution.” For ascertainment of proper quantum of compensation, the learned Judge afterconsidering the report submitted by the Collector of Coimbatore, who hasenquired into the matter and has gone into the matter in detail and after taking intoconsideration all factors including the payments made by the InsuranceCompanies, recommended payment of compensation in 32 cases for the loss ofmovables and damages to immovables and recommended total amount ofcompensation at Rs. 33,19,033/-, which has not been challenged, held “that thesecond respondent-State of Tamil Nadu is bound to pay compensation to thevictims as assessed and recommended by its senior official. Instead, theGovernment of Tamil Nadu have issued G. O. Ms. No. 913, dated 29-04-1986,awarding ex gratia payment of a beggarly amount of Rs. 750 to each of the twentypersons affected by the Coimbatore riots, who have, however, refused to receivethis payment, rightly, with a sense of self-respect” and directed the State Government by way of Mandamus to pay compensation to the victims of theCoimbatore riots strictly as per the report of the Collector of Coimbatore dt. 11-2-1985 in the sum of Rs.33,19,033/- as assessed and recommended by theCollector.

In M/S. INDERPURI GENERAL STORE V. UDI (16 supra), JusticeR.P.Sethi (as he then was) while dealing with the writ petition filed for payment ofcompensation to the extent of losses actually suffered by the writ petitioners asshown in Annexures P1 to P7 of the petition in the unfortunate communal riotstook place in Jammu on 13-1-1989, after referring to the various judgments of theSupreme Court, namely, OLGA TELLIS V. BOMBAY MUNICIPALCORPORATION (AIR 1986 SC 180); KHARAK SINGH V. STATE OF UP (1964)SCR 332); M.C.MEHTA V. UNION OF INDIA (1987) 1 SCC 395); BANDHUAMUKTI MORCHA V. UNION OF INDIA (1984) 3 SCC 161; BHIM SINGH V.STATE OF J and K (1985) 4 SCC 577 and R. GANDHI V. UNION OF INDIA (AIR1989 MADRAS 205) and various English decision held “Art. 21 embodies thegeneral principle that no person shall be deprived of his life or personal libertyand guarantees the most essential of all the rights as enshrined in Part III of theConstitution….….The term "life" used in the Article is not only restricted to themore nominal existence but extends to the inhibition against its deprivation to allthose limits and faculties by which life is enjoyed. It also includes the right tolivelihood. The ambit and scope of 'right to life' conferred by this Article is wideand far-reaching which does not mean merely that life cannot be ex-tinguished ortaken away but embraces within its ambit the right to livelihood because noperson can live without the means of living. If the right to livelihood is not treatedas a part of the constitutional right to life, the easiest way of depriving a person ofhis right to life would be to deprive him of his means of livelihood to the point ofabrogation” and allowed the writ petition directing to pay compensation to theextent of loss suffered by the petitioners as assessed by the Committeeconstituted to assess the damages.

WAF ALALAULAD V. SUNDARDAS DAULATRAM (17 supra) isa case where property of a citizen was forcibly occupied by un-social elements bycreating terror. On filing writ petition for restoration of the possession of thepremises in dispute and for maintaining law and order, the Allahabad High Court

while dealing with the preliminary objection with regard to maintainability of writpetition held that “when a person, who has been dispossessed from his propertyby brazen acts of lawlessness by or with the help of anti-social elements,approaches this Court under Article 226 of the Constitution, this Court does notexercise its power to enforce the contractual and legal obligations of the parties. Itonly directs the Government to enforce the Rule of law and to protect the lives,liberty and the properties of the people and, if found necessary, to restore thepossession of the property to the person who has been dispossessed therefrom,leaving it open to the parties to get their rights adjudicated through Civil Court. Totell a person whose property has been forcibly captured and seized by or with thehelp of anti social elements, to file a suit for its recovery and be on the street tillthe suit is decided by the last Court, is nothing but slapping a person in distress,”and held that the writ petition was maintainable.

In P.A.KULKARNI V. STATE OF KARNATAKA (18 supra), a DivisionBench of the Karnataka High Court on a writ petition filed by way of public interestseeking compensation for the deaths and injuries caused on account of collapseof a building constructed by the builders by using substandard material besidesignoring the structural guidelines, after referring to its earlier decisions and alsovarious decisions of the High Courts and Supreme Court, held that “it cannot bedenied that protecting life and liberty of the citizen is the duty of a responsibleGovernment who cannot abdicate its function and allow the life and liberty of thecitizen in jeopardy. Wherever a loss is caused to a person on account of provedacts of commission and omission of an authority, a welfare State under ademocratic system of responsible Government is under an obligation to takeeffective steps against the erring parties and ensure adequate compensation tothe victims of the calamity caused on account of the acts of commission andomission. Failure to take any action against the erring and responsible person orAuthority would be a sufficient ground for this Court to intervene and compel theState to perform its constitutional obligations. Technical pleas and proceduralwrangles cannot be permitted to be put as obstruction in grating the relief to thevictims and their families.” The Karnataka High Court further held that therespondent-State has been found to have failed in its discharge of constitutionalobligations forcing the present petitioners to approach this Court for issuance ofappropriate directions and respondent No. 2 which was found by the Commission of Enquiry, to have failed in exercising sufficient care and examining variousaspects specially Zoning Regulations in regard to the coverage, off-street parking,bye-law No. 38 regarding set-back of fire safety measures while sanctioning orrenewing the licence in favour of the owners which ultimately resulted in thedeath of 118 and injury to 67 persons in Gangaram Building collapse. In view ofthe finding of the Commission that no valid licence as per the Act had beenobtained by the owners of the building before the commencement of theconstruction, the respondent-Corporation failed to take any action against theerring persons resulting in loss of human lives and injuries to many”, and directedpayment of compensation as per the criterion fixed in the judgment.

In RANCHI BAR ASSOCIATION, RANCHI V. STATE OF BIHAR (19supra), Patna High Court while considering the award of compensation for theloss of life, liberty and property pursuant to the Bundh call given by JharkhandMukti Morcha leading to ransacking of the premises of the Bar Association ofDistrict Court and destruction of its furniture and the vehicles parked there weredamaged or burnt, formulated the following four questions for consideration:

(i) Whether any person or group of persons, party or Organizationhas any right under the Constitution or any other law to holdBundh, Agitation, Demonstration and Rally in a mannercausing/compelling the people by force or show of force oreven otherwise to stop from carrying on their business,profession and other lawful activities?has any right under the Constitution or any other law to holdBundh, Agitation, Demonstration and Rally in a mannercausing/compelling the people by force or show of force oreven otherwise to stop from carrying on their business,profession and other lawful activities?

(ii) Whether the Government and its officers are bound not to allowsuch Bundh, Agitation, Demonstration and Rally in order toprotect the person and property, business and other lawfulactivities of the people?such Bundh, Agitation, Demonstration and Rally in order toprotect the person and property, business and other lawfulactivities of the people?

(iii) Whether the Organizers of the Bundh and/or the StateGovernment and its officers are bound to compensate for theloss of life and property suffered by the people during suchBundh, Agitation, Demonstration and Rally and if so whatshould be the amount of compensation in the instant case.loss of life and property suffered by the people during suchBundh, Agitation, Demonstration and Rally and if so whatshould be the amount of compensation in the instant case.Whether by compelling the closure of the Courts on 8th June,1998, the organizers of the Bundh and those who haveparticipated in it have committed contempt of Court and if so,what should be the punishment ?1998, the organizers of the Bundh and those who haveparticipated in it have committed contempt of Court and if so,what should be the punishment ?

(iv)

While answering the question No.2 in affirmative holding that the Government, itsadministration and the police are bound not to allow the unlawful Bundh, Rally etc., in order to protect the life, liberty and property of the people observed asfollows:

“The Government being duty bound to protect the people, has to prevent unlawfulactivities like Bundh, Rally etc. which invade or threaten to invade their life, libertyand property. It is neither open to any person, organization or political party to takethe people to ransom, nor is it permissible for the Government to allow suchunlawful activities. Such activities have to be prevented at the threshold otherwiseit may not be possible to protect the people' rights. Prevention of unlawful activitiesensures the protection of the rights of the people and their property. If the peoplewho organize and support such unlawful Bundh, Rally etc. are armed, they have tobe disarmed and prevented from proceeding further by the State administration andany failure on the part of the administration to do so is negligence liable to bepunished.” (para 15)

While considering the first limb of question No.3 ie., Whether they are bound tocompensate the loss of life and property suffered by the people during suchBundh, Agitation, Demonstration or Rally, Patna High Court answered the samein affirmative holding that the Government is bound to pay compensation to thosewho have suffered the loss of life, liberty and property on account of failure on itspart to discharge its public duty to protect them. In appropriate cases even theorganizers of the Bundh, Agitation, Demonstration and Rally can also be directedto pay compensation. While considering the second limb of question No.3 ie.,what is the amount of compensation to be paid for the damage caused to the BarAssociation properties and also to large number of vehicles (scooters) and forthe loss of life of Manoj Kumar Agarwal, who was seriously injured by thesupporters of the bundh, resulting in his death in a hospital, Patna High Courtdirected the Government of Bihar to deposit Rs.1,50,000/- with the JudicialCommissioner, Ranchi, who shall pay the amount of compensation to the ownersof the vehicles and the Bar Association, as assessed by the Committee and theGovernment of Bihar shall also pay a sum of Rs.2,94,000/- to the father of thedeceased, Manoj Kumar Agarwal, respectively.

In P.GANGADHARAN PILLAI V. STATE (20 supra), the Kerala HighCourt on a writ petition filed seeking compensation for the loss of business andproperty sustained by the writ petitioner on account of mob attack on his hotel and looting of the property alleging that damage could have been prevented ifappropriate and timely action had been taken by the State Government, a learnedsingle Judge of Kerala High Court while directing the State to pay an amount of Rs.35,000/- as compensation against Rs.86,000/- as claimed by the writpetitioner, observed as follows:

“The damage caused to petitioner's hotel and business could have been avoided if,respondents 2 to 4 had taken adequate steps at appropriate time. Therefore, I findthat the 1st respondent is liable to compensate the petitioner for violation of hisfundamental right. The averments in the original petition and the counter-affidavitwould show that State had, as a matter of fact, granted compensation to certaintraders who suffered damage on 16-10-1990 as a result of the mob attack. I find noreason to deny the petitioner a similar treatment. (para 19)

In S.S.AHLUWALIA V. UNION OF INDIA (21 supra), the facts are thata writ petition has been filed under Art. 32 of the Constitution of India before theSupreme Court seeking to extend the benefits of the judgment in BHAJAN KAURV. DELHI ADMINISTRATION (ILR (DEL) 1996 (2) 754), wherein the High Courtof Delhi directed payment of a sum of Rs.2 lakhs and also made a generaldirection that this direction should apply to similar cases, where several killingsof Sikhs in Delhi and other parts of the Country in the wake of assassination ofSmt. Indira Gandhi, to the entire country and for certain other reliefs. TheSupreme directed the High Courts of Delhi, Rajasthan, Orissa, Punjab andHaryana, Himachal Pradesh, Patna, Madhya Pradesh, Allahabad, and Bombay inthe States of Delhi, Rajasthan, Orissa, Haryana, Himachal Pardesh, Bihar,Madhya Pradesh, Uttar Pradesh, Maharashtra and Goa to deal with the matter inrespect of the allegations made therein in respect of the State falling in itsjurisdiction by treating this writ petition as a petition filed in that High Court, andtransferred the proceedings to the respective High Courts.

P.P.M. THANGAIAH NADAR FIRM V. GOVERNMENT OF TAMILNADU (24 supra) is again a case where State has been directed to paycompensation to the persons who sustained loss due to communal clash. On theeve of the assembly elections there was a communal clash on 9-5-1996, whichcontinued, unabated for a few days. The Government of Tamil Nadu constituted aCommission of Inquiry in exercise of the powers conferred under Section 3(1) ofthe Commissions of Inquiry Act, 1952. On Commission submitting its reportrecommending payment of compensation in respect of 186 claims, theGovernment accepted the report and sanctioned compensation to 186 personsequal to the quantum of loss sustained by the claimants, whose losses were assessed by the Commission at much more than Rs.2,00,000/-, but the petitionersrefused to receive compensation and filed the writ petitions claiming certainamounts mentioned in the writ petition. On learned single Judge of the MadrasHigh Court referring the question, namely, whether it is obligatory on the part ofthe State to compensate the loss caused to the properties due to communalclashes, particularly when the right to hold and acquire the property protectedunder Art.19(1) (f) of the Constitution has been deleted, to be dealt with by theFull Bench, the Full Bench of Madras High Court after referring to the judgment ofthe Apex Court in State of U. P. v. Manohar, (2005) 2 SCC 126) concluded thatnotwithstanding the deletion of Article 19 (1) (f) and Article 31, in case where aperson is deprived of his property without authority of law, such person canprotect the right recognized under Article 300-A by approaching the High Courtunder Article 226, of course within the known parameters of jurisdiction underArticle 226. The Full Bench of the Madras High Court, while considering thequestion with regard to the liability of the State on account of loss of life ordamage to the property during rioting and the remedy available to the affectedperson, after considering the judgments of that court including the judgment underappeal and SRI LAKSHMI AGENCIES V. GOVERNMENT OF ANDHRAPRADESH[[26]]and judgments of various High courts and Supreme Court, heldas under:

“It is no doubt true that in the aforesaid decisions, the learned Judges haveproceeded on the footing that compensation is payable when a fundamental right isaffected on account of any negligent act or dereliction of duty. The destruction ofproperty was considered as violation of fundamental right under Article 21. Evenassuming that destruction of property may not come within such fundamentalrights, in our opinion, such right being a constitutional right, is also required to beprotected. It is the duty of the State to protect life, liberty and property of a personand any negligence or dereliction of duty on the part of the government machinerywould obviously make the State Government liable. However, the question ofamount of compensation payable is obviously a matter of inference to beconsidered on facts of each case.”(para 21)

It was further held at para 25 as follows:

“Thus a conspectus of the decisions of several High Courts and even those of theSupreme Court makes it clear that it is the constitutional obligation of the State toprotect the life, liberty and property of a person and where the State, that is to sayits machinery without any justification fails in such duty resulting in loss to aperson the State cannot avoid its responsibility by taking refuge under a plea thatthe damage was done by the rioters and not by State's machinery.”

While considering the question with regard to the forum where the remedy is to be

sought for, the Full Bench of Madras High Court after referring to variousjudgments of the Supreme Court including the judgment in TAMIL NADUELECTRICITY BOARD V. SUMATHI (AIR 2000 SC 1603) wherein the SupremeCourt held that when disputed question of fact arises, and there is clear denial ofany tortious liability remedy under Art. 226 of the Constitution may not be proper,observing that it cannot be understood as laying a law that in every case oftortious liability recourse must be had to a suit, and when there is a negligence onthe face of it and infringement of Art.21 is there it cannot be said that there will beany bar to proceed under Art.226 of the Constitution, and RABINDRA NATHGHOSAL V. UNIVERSITY OF CALCUTTA (2 supra), wherein it was held that inexercise of extraordinary power under Articles 226 and 32 of the Constitution,therefore, would not award damages against public authorities merely becausethey have made some order which turns out to be ultra vires or there was someinaction in the performance of the duties unless there is malice or consciousabuse. Before any exemplary damages can be awarded it must also be shownthat some fundamental right under Article 21 has been infringed by arbitrary orcapricious action on the part of the public functionaries and that the sufferer was a helpless victim of that act" answered the reference holding as under:

“…The State is not necessarily liable in every case where there is loss of life ordamage to the property during rioting. Where, however, it is established that theofficers of the State ordained with duty of maintaining law and order have failed toprotect the life, liberty and property of person and such failure amounts todereliction of duty, the State would be liable to pay compensation to the victim.Such liability can be enforced through public law remedy or common law remedy.Where, necessary facts to establish culpable negligence on the part of officials areavailable, the High Court under Article 226 can issue appropriate direction. Where,however, the main aspect relating to culpable negligence of the officer is seriouslydisputed, filing of suit may be more appropriate remedy. No hard and fast rule canbe laid down on these aspects and obviously the availability of remedy underArticle 226 would depend upon the facts and circumstances of each case….” (para38)

The Full Bench of Madras High Court while considering the question relating tothe value to be attached to the report of a Commission constituted under theCommission of Inquiry Act, held that if the report of a Commission of Inquiry is notlegally binding and has got no evidentiary value, once such report, to the extent itis accepted by the State, obviously it would not be fair on the part of the State to contend that it is bound by the findings of the Commission of Inquiry.

The Supreme Court in S. D. O. GRID CORPORATION OF ORISSA

LTD VS. TIMUDU ORAM[[27]] while considering the justification of the action ofthe High Court in exercising its power under Article 226 of the constitution ofIndia in awarding compensation to the writ petitioners in spite of GridCorporation of Orissa had denied their liability on the ground that the deaths hadnot occurred as a result of their negligence but because of the negligence of thewrit petitioners/respondents themselves or of an act of God or because of an actof some other persons, following its earlier judgment in Chairman, GridCorporation of Orissa Ltd. (GRIDCO) and others v. Sukamani Das (1999) 7 SCC298) wherein the Supreme Court took the view that the High Court committed anerror in entertaining the writ petition under Art. 226 of the Constitution that actionsin tort and negligence were required to be established initially by the claimants,set-aside the impugned judgment of the Orissa High Court of Cuttack directingthe appellants to pay a sum of Rs.2,70,000/- by way of compensation to the writpetitioners/respondents therein, but having regard to the long lapse of time,directed the appellants not to recover the amount already paid to the respondents.

There is no difficulty against the positive State action or its officialsviolating the fundamental right to life or liberty, Art. 21 springs into action, and itcan also stretch upto mulcting the State for the wilful negligence of the servantsof the State in discharge of their functions, which will affect of violatingconstitutional guarantee enshrined under Art. 21 of the Constitution. Award ofcompensation for established infringement of the indefeasible rights guaranteedunder Art. 21 of the Constitution is a remedy available in public law since thepurpose of public law is not only to civilize public power but also to assure thecitizens that they live under a legal system wherein their rights and interests shallbe protected and preserved by the State Government by enforcing Rule of law. InD.K. BASU V. STATE OF W.B (12 supra), it was held that grant of compensation in proceedings under Art.32 or Art.226 of the Constitution of India for theestablished violation of the fundamental rights guaranteed under Art.21 is anexercise of the Courts under the public law jurisdiction for penalizing thewrongdoer and fixing the liability for the public wrong on the State which failed inthe discharge of its public duty to protect the fundament rights of the citizen, but the said observation was made regarding deaths in police lock ups and custody. In R. GANDHI V. UNION OF INDIA (15 supra); M/S. SRILAXMI AGENCIES V.GOVERNMENT OF ANDHRA PRADESH (26 supra); M/s. INDERPURIGENERAL STORE V. UDI (16 supra); WAF ALALAULAD V. M/S.SUNDERDAS DOULATRAM (17 supra); P.A.KULKARNI V. STATE OFKARNATAKA (18 supra); ; P. GANGADHARAN PILLAI V. STATE OFKERALA (20 supra); K.V. JOSEPH V. STATE OF KERALA (23 supra) andPPM THANGAIH NADAR FIRM V. GOVERNMENT OF TAMIL NADU (24supra), High Courts were called upon to decide award of compensation inproceedings under Art. 226 of the Constitution when State failed to protect theproperty affecting the livelihood of the citizens due to communal violence andviolence erupted on assassination of Smt. Indira Gandhi. In some of the cases,commissions were constituted to assess the damage caused to the propertiesand States were directed to pay compensation as per the reports of the Collectorsor Commissions, constituted to assess the damages.

The writ petitioner unless establishes the deprivation of fundamentalrights ie., violation of Art. 21, due to the damage caused to the property affectedhis livelihood a right guaranteed under Art. 21 and in violation of statutory dutiesdue to the negligence on the part of the Government officials, he is not entitled toany relief.

The Supreme Court in NILABATI BAHERA V. STATE OF ORISSA (7supra) categorically held that if the guarantee that deprivation of life and personalliberty cannot be made except in accordance with law, is to be real, theenforcement of the right in case of every contravention must also be possible inthe constitutional scheme, the modes of redress being that which is appropriate inthe facts of each case.

In all the cases referred to above, where life and liberty have beendeprived by the State Government or its Officials, it was held that State isvicariously liable for the acts done by its officials.

Art.21 of the Constitution mandates no person shall be deprived of hislife and personal liberty except according to the procedure established bylaw. Earlier to the Judgment of the MANEKA GANDHI V. UNION OF INDIA (AIR1978 SC 597), Art. 21 was construed narrowly only as a guarantee againstExecutive action unsupported by law. But the Supreme Court opened up a new dimension and gave an expanded meaning to the life under Art. 21, Life includesall those aspects of life which go to make a man’s life meaningful, complete andworth living (See: Also BOARD OF TRUSTEES OF THE PORT OF BOMBAYVS. DILIP KUMAR RAGHAVENDRANATH NADKARNI (AIR 1983 SC 109).

The Supreme Court in NEW REVIERA COOR HOUSING SOCIETY VS.

SPECIAL LAND ACQUISITION OFFICER[[28]] at para 8 held that acquisition ofland by State for public purpose does not violate Art. 21 or the right to livelihoodor right to shelter or dignity of a person. Whereas in DALMIA CEMENT(BHARAT) LIMITED VS. UNION OF INDIA[[29]], it was held by the SupremeCourt that right of agriculturists to cultivation is part of their fundamental right tolivelihood.

Therefore, in order to succeed in the claim for damage caused to theproperty, a person has to establish that by such damage his right to livelihood hasbeen infringed, guaranteed under Art. 21 of the Constitution. Life and livelihoodare relative terms, differs from person to person. For example, terrorists attackedTaj Hotel at Bombay on 26-11-2008, in which the property owned by Ratan Tatahas been damaged. Can Ratan Tata claim damages from the Central or StateGovernment for the damage caused to the said property due to the failure ofpolice/intelligence/state officials in preventing the said damage by invoking publiclaw remedy under Art. 226. The answer certainly is “ NO “, because damage tothe property is not affected his livelihood. At the same time, the property of thepavement tea kiosk vendor, who eke out his livelihood by selling snacks and tea,is deprived of his property, he can seek compensation for deprivation of hislivelihood for infringed right guaranteed under Art.21 of the Constitution becauseit affects his livelihood. In a communal violence, if a passer-by’s car is damagedby the rioters, it is only a loss to the property and it may not affect the livelihood ofperson owned the car. Whereas, an auto driver who is eking out his livelihood byrunning auto and when his auto is burnt by the rioters in the riot, that affects thelivelihood of the auto driver. Therefore, destruction of property affects a person’slivelihood, infringing right guaranteed under Art. 21 differs from person to person.In such a situation, a Welfare State is under obligation to give financial help tothe have-not persons who deprived of their livelihood for no fault of them. In allthe cases, where various High Courts have awarded compensation to the persons whose livelihood is affected due to violence erupted either at the time ofassassination of Smt. Indira Gandhi or communal disturbances onpolice failure to prevent arson, looting etc., resulting loss to the property.

But in the case on hand, admittedly, the business premises of thepetitioner, where he is exhibiting cinemas and running a hotel has been damagedon the aftermath of Mr. Rajiv Gandhi, which has not been affected his livelihood,but, however, he sustained loss in business and damage to his personalproperty. Therefore, the writ petitioner cannot invoke the public law remedy toclaim damages against the State unless he establishes that negligence on thepart of the officials of the State, which has taken away his livelihood.

The whole pleadings of the writ petitioner would go to show that thepolice totally failed in their duties in protecting the property ie., Ramakrishna 70MM theatre in the N.T.R. Estates. It could have been possible for the local policeto identify the persons who collected themselves there for the purpose ofdamaging the properties in N.T.R. Estates. But the police did not take steps toprevent them from damaging the properties. Only after damage, theCommissioner of Police deputed Additional Commissioner of Police to inquireinto the situation, who submitted his report, which was allowed to remain in cold-storage. Justice M.R.A.Ansari submitted his report. According to his report, policewere held guilty for dereliction of duty in not preventing the damage to theproperties of the writ petitioner. In spite of giving findings, the Government did nottake any steps to compensate the damage suffered by the writ petitioner. As theState failed to protect the interests of the citizens by allowing the violence tobreak up, the State alone is responsible to reimburse the loss suffered by thecitizens, and State is under obligation to compensate the writ petitioner aftertaking into account the insurance claim, if any, recovered by him.

Learned single Judge after referring to the Commission Report and theMemorandum of Action Taken on the report of the one Man Commission, whileobserving that the police reached the spot much prior to the incident. TheAssistant Commissioner of Police, Circle Inspector and Sub-Inspector of Policeand APSP Platoons were on the spot. But, however, they failed to take anypreventive measures for the reasons best known to them and they moved awayfrom the place. It is the duty of he police when they apprehend danger to the property and more especially after having come to know about 150 personswere waiting in front of the gate of N.T.R. Estates. But, they did not take anypositive steps to prevent the untoward incident. The police did not take any stepsto disperse the mob or used any tear gas shells or cane charge or resorted to firein the air or like acts to scare away the mob. Failure to take preventive stepscaused the damage to the property held that the State is failed to discharge itssovereign functions in protecting the property of the petitioner and the policeexhibited complete inaction and slackness in dealing with the situation.

Even if it is accepted to be true, as referred to above, under theHyderabad City Police Act, the police are under statutory obligation to maintainlaw and order. If the police failed in their duties to do an act in pursuance of thevarious provisions ordained to enforce the law and order and the police arenegligent and commits a tort, the State is vicariously liable for the tortious actscommitted by its officials. The claim for compensation for the action complained ofwould be governed by Art. 72 of the Limitation Act. In such a situation, for claimingcompensation against the State Government, the limitation prescribed is oneyear ie., from the date of incident in question.

Admittedly, in the present case, the incident has taken place on 21-5-1991 and the present writ petition seeking compensation has been filed on 5-10-1993 ie., beyond one year. In the absence of any mala fides attributed to thepolice officials or any pleading to the effect that they have abetted commission ofoffence acted with malice in discharge of their duties, said article can beexcluded.

It is well settled that Article 226 is not intended to supersede the modesof obtaining relief before a civil court or to deny defences legitimately open insuch actions. (SeeGhan Shyam Das Gupta v. Anant Kumar Sinha=(AIR 1991 SC2251=(1991) 4 SCC 379).

In view of the same, it is for the writ petitioner to take necessary pleasand establish culpable negligence on the part of officials, as established in thecase of STATE OF A.P. V. CHALLA RAMAKRISHNA REDDY (25 supra),where State can defend its action by controverting said facts by leading evidence.Further, the State Government has disputed about negligence of its officials inmaintaining law and order and extent of damage caused to the property belonging to the writ petitioner.

The certificate issued by the District Collector, Hyderabad cannot formthe basis for awarding compensation, since the same is not assessed and issuedunder any statutory power conferred on the Collector in assessment of thedamages. It is not a public document under Sec. 74 or an official document underSec. 78 of the Evidence Act. Hence, the same cannot be taken as a conclusiveproof to come to a conclusion that the writ petitioner suffered a loss to a tune ofRs.1,51,50,000/- as mentioned in the certificate issued by the Collector to claimcompensation. The basis for issuing such a certificate and how he arrived thesaid figure has to be established by leading evidence in support of it before thecompetent court in a properly constituted civil suit.

From the conspectus discussion and the conclusion reached by us, weare of the view that the learned single Judge committed a serious error inentertaining the writ petition and awarding compensation against the StateGovernment, and also awarding interest, de hors restriction in awarding of interestunder Sec. 34 of the Code of Civil Procedure.

WA No.1407/2000 is accordingly allowed. Consequently, the writpetition filed by the writ petitioner shall stand dismissed. In view of allowing thewrit appeal and dismissing the writ petition of the writ petitioner, WA (SR)No.102605/2000 is disposed of in terms of WA No.1407/2000. There shall be noorder as to costs.

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A.GOPAL REDDY,J

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P.DURGA PRASAD,J

DT. 31-12-2010

After pronouncing the Judgment, learned counsel for therespondent/writ petitioner, sought certificate for filing an appeal before theHon’ble Supreme Court.

We are of the view, the case does not involve any substantial questionof law of general importance, requiring to be decided by the Supreme Court.

Hence, the oral leave to file an appeal is rejected.

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A.GOPAL REDDY,J

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P.DURGA PRASAD,J

lmv

[1](1999) 1 SCC 741[2](2002)7 SCC 478[3](1999) 6 SCC 667[4](2007) 8 SCC 748[5](2006) 3 SCC 178[6](2001) 8 SCC 151[7](1993) 2 SCC 746=AIR 1993 SC 1960[8]AIR 1994 SC 2663[9] (1995) 3 SCC 42[10](1994) 1 SCC 243[11](2000) 2 SCC 465[12](1997) 1 SCC 416[13](2009) 5 SCC 212[14](1996) 1 SCC 742[15]AIR 1989 Mad.205[16]AIR 1992 J & K 11[17]AIR 1996 ALL.355[18]AIR 1999 KARNATAKA 284[19]AIR 1999 PATNA 169[20]AIR 1996 KERALA 71[21](2001) 4 SCC 452

[22]AIR 1986 SC 180[23]1999 ACJ 225[24]2007 ACJ 177[25](2000) 5 SCC 712[26]1994(1) ALT 341[27](2005) 6 SCC 156[28](1996) 1 SCC 731[29](1996) 10 SCC 104