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P.K. Misra, J.—W.P. No. 2705 of 1999 has been filed for issuing a writ of certiorarified mandamus calling for the records relating to the
order of the 2nd respondent passed in G.O.Ms. No. 1834 (Law and Order P) Department, dated 6.11.1998 and quash the same in so far as the
fixation of the compensation to the tune of Rs. 2 lakhs only and directing the respondents to sanction and pay a sum of Rs. 1,84,42,775/- as
ascertained by the Enquiry Commission headed by Thiru V.K. Thirunavukarasu, District Judge in his report dated 25.6.1997 forthwith with
interest.
W.P. No. 6163 of 1999 has been filed for issuing a writ of certiorarified mandamus calling for the records relating to the order of the 2nd
respondent passed in G.O.Ms. No. 1834 (Law and Order P) Department, dated 6.11.1998 and quash the same in so far as it restricts the
compensation to Rs. 2 lakhs only and directing the respondents to pay a sum of Rs. 85,74,000/- to the first petitioner as compensation as
recommended by the One Man Commission headed by in its report dated 25.6.1997 forthwith with interest.
W.P. No. 10146 of 1999 has been filed for issuing a writ of mandamus directing the respondents to pay Rs. 70,00,000/- as damages to the
petitioner for the loss sustained by the petitioners during the mob-violence and riot which took place on 10-5-1996 at Tuticorin.
Before considering the question referred, a brief narration of the facts as culled out from the order passed by the learned single Judge is called
for.
On the eve of the Assembly Elections, there was a communal clash in Thoothukudi town on 9.5.1996 between Baradhavar (Fernando) and Nadar
communities, which continued unabated for a few days. On 11.5.1996, there was a police firing, resulting in the death of few persons. During such
rioting, large scale of arson and looting took place, resulting in damages to properties of several persons belonging to the two groups. Thereafter,
the people belonging to business class of Tuticorin shut down their shops from 16.5.1996 demanding adequate police protection and payment of
compensation to those who had sustained loss due to such communal clash. At that stage, the Government of Tamil Nadu in exercise of the
powers conferred u/s 3(1) of the Commissions of Inquiry Act, 1952, constituted a Commission of Inquiry headed by a District Judge. The terms of
reference were as follows:
(i) To inquire into and report the cases and circumstances that led to the clashes between two communities in Thoothukudi from 10-5-1996 and
subsequent occurrences of Law and Order disturbances.
(ii) To inquire into and report the causes and circumstances that led to the opening of fire by the Police on 11-5-1996, and as to whether the
Police firing is justified.
(iii) To inquire into and to identify the victims who sustained injuries and also the persons who actually suffered loss or damages to property,
business establishment, etc., in the above mentioned violent incidents and to assess the extent of damages and to suggest the quantum of
compensation to be paid to the victims.
(iv) To recommend suitable measures to prevent such occurrences in future and also to suggest measures to maintain communal harmony and
lasting peace.
The Commission in its report recommended for payment of compensation in respect of 186 claims. The Government by G.O.Ms. No. SS.II/495-
5/97 Public Department dated 176.10.1997 ""accepted the report of the Commission on principle"" and forwarded the report to the respective
departments for examination, particularly with regard to payment of compensation as suggested by the Commission. Subsequently, the
Government in G.O.Ms. No. 1834 (Law and Order.P) Department dated 6.11.1998, sanctioned compensation to 186 persons equal to the
quantum of loss sustained by the claimants or Rs. 2 lakhs each, whichever is less. The petitioners in various writ petitions, whose loss were
assessed by the Commission at much more than Rs. 2 lakhs, refused to receive such compensation and filed writ petitions claiming the amount
indicated in such writ petitions.
While considering all these writ petitions, the learned single Judge by order dated 10.11.2000, has referred the matter to be placed before a
Larger Bench. The terms of reference are as follows:
Considering all the above aspects and in view of the fact that the decisions referred to above relate only to compensation for the loss of life and
no decision fixing the responsibility of the State for payment of compensation for the loss of property of the citizens was put-forth before this Court
except the decision in ""Coimbatore case"" and also in view of the fact that the issue had not been seriously raised before the Division Bench of this
Court in Writ Appeal No. 314 of 1989 dated 08.12.1998 and considering the happenings of frequent communal clashes now a days in many parts
of the State, involving loss of valuable life and damage to properties, I am of the view that an authoritative decision is called for by a Larger Bench
of this Court. It has to be considered in view of the deletion of Article 19(1)(f) of the Constitution, viz., right of a citizen to challenge (sic)the
freedom of property from Chapter-III of ""Fundamental Rights"", whether it is obligatory on the part of the State to compensate the entire loss
caused to the properties of citizens due to communal clashes etc.
In the above background, the matters have been now placed before the Full Bench.
Mr. R. Gandhi, learned Senior Counsel appearing for the petitioner in W.P. No. 2705 of 1999, submitted at the threshold that the learned single
Judge should not have referred the matter to a Larger Bench as the single Judge''s decision of the Madras High Court reported in R. Gandhi and
Others Vs. Union of India (UOI) and Another, , which was confirmed in appeal by the Division Bench, was holding the field and the learned single
Judge, who is bound by the earlier decision approved by the Division Bench, should have followed such decision and granted compensation. In
this connection, the learned Senior Counsel has referred to several decisions laying down the principle that the decision rendered by a Division
Bench is binding on the single Judge. He has placed reliance upon an order of Reference to a Full Bench, which has been reported in K.
Marappan Vs. The Deputy Registrar of Co-operative Societies and The Special Officer Vattur Co-operative Agricultural Bank, . He has
submitted that in view of the decisions noticed in such order, the learned single Judge should not have referred the matter to a Larger Bench and
the Full Bench should decline to answer the poresent reference.
Learned Senior Counsel has referred to the decision of the Supreme Court reported in Pradip Chandra Parija and Others Vs. Pramod Chandra
Patnaik and Others, , where it was observed:
... In the present case the Bench of two learned Judges has, in terms, doubted the correctness of a decision of a Bench of three learned Judges.
They have, therefore, referred the matter directly to a Bench of five-Judges. In our view, judicial discipline and propriety demands that a Bench of
two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier
Judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the
matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment.
If, then, the Bench of three learned Judges also comes to the conclusion that the earlier Judgment of a Bench of three learned Judges is incorrect,
reference to a Bench of five learned Judges is justified.
Again the Supreme Court had occasion to examine the very same question in Central Board of Dawoodi Bohra Community and Another Vs.
State of Maharashtra and Another, , wherein it was observed as follows:
Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the
Constitution Benches in the above said decisions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal
strength.
(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the
Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of
larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an
opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing
before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) The above rules are subject to two exceptions:
(i) the above said rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any
particular matter to be placed for hearing before any particular Bench of any strength; and
(ii) in spite of the rules laid down herein above, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself
feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of
exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in
question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the
situation in Raghubir Singh and Hansoli Devi.
The submission made by the learned Senior Counsel is to be considered in the light of the observations made by the Supreme Court in the
aforesaid two decisions.
In the present case, the learned single Judge has simply referred the matter to a larger Bench and it is not indicated by the learned single Judge
that the matter is referred to a Full Bench consisting of three Judges or more. Once the matter is referred to a larger Bench, it would be in the
discretion of the Honourable the Chief Justice to either place the matter before a Division Bench or a Full Bench. It appears from various notes that
the then learned the Chief Justice directed for placing the matter before a Full Bench consisting of three Judges. In such circumstances, it would not
be appropriate on our part to accede to the submission made by the learned Senior Counsel that the Full Bench should decline to answer the
reference. At any rate, keeping in view the importance of the matter, we are inclined to observe that it is more appropriate that the matter should
be dealt with by a Full Bench.
A careful perusal of the order of Reference indicates that the matter referred to the Full Bench relates to the question as to whether it is
obligatory on the part of the State to compensate the loss caused to the properties due to communal clashes, particularly when the right to hold and
acquire the property protected under Article 19(1)(f) of the Constitution has been deleted.
For considering the aforesaid question, it is necessary to consider the following aspects:
(1) What is the effect of deletion of Article 19(1)(f) ?
(2) What is the liability of the State regarding loss of life or damages to the properties during rioting ?
(3) What is the remedy available to a victim, that is to say, whether a writ petition can be filed or the victim is required to file a suit for claiming
compensation ?
It is no doubt true that by Forty Fourth Amendment to the Constitution, Article 19(1)(f) and Article 31 have been deleted, but by virtue of the
very same Amendment, Article 300-A has been included, which is to the following effect:
300-A. Persons not to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law.
As a matter of fact, Clause (1) of Article 31 has been shifted from Part III, that is to say, from Part relating to Fundamental Rights, to Article
300A. Even though the right to acquire and hold property has ceased to be a Fundamental Right, it cannot be contended even for a moment that
right to hold the property has ceased to be a legal right. In fact, such a right has been recognised as a ''Constitutional right'' under Article 300A. If
any person''s property is taken away by the Executive without authority of law, such person would be entitled to legal relief on the ground that such
action is in contravention of Article 300A. However, since such right has been brought outside the purview of Fundamental Rights, the aggrieved
person may not have any right to move the Supreme Court under Article 32 for violation of Article 300A and his remedy would be under Article
226 or by a Civil Suit, depending upon the facts and circumstances.
In the decision reported in Jilubhai Nanbhai Khachar, etc. etc. Vs. State of Gujarat and another, etc. etc., , the right to property under Article
300A has been recognised as a Constitutional right. If, without providing for payment of compensation or without taking recourse to any provision
relating to land acquisition, a person is forcibly deprived of his property, such a person can obviously approach a Court of law, including the High
Court under Article 226. Such an exigency has been recognised by the Supreme Court in State of U.P. and Others Vs. Manohar, , where it has
been observed as follows:
7.Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted
by the Forty-fourth Amendment to the Constitution, Article 300A has been placed in the Constitution, which reads as follows:
300-A. Persons not to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law.
This is a case where we find utter lack of legal authority for deprivation of the respondent''s property by the appellants who are State authorities.
In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of the Constitution. In our
view, the High Court was somewhat liberal in not imposing exemplary costs on the appellants. We would have perhaps followed suit, but for the
intransigence displayed before us.
Therefore, our conclusion is notwithstanding the deletion of Article 19(1)(f) and Article 31, in case where a person is deprived of his property
without authority of law, such person can protect the right recognised under Article 300A by approaching the High Court under Article 226, of
course within the known parameters of jurisdiction under Article 226.
The next question is regarding liability of the State on account of loss of life or damage to the property during rioting and the remedy available
to the affected person.
A discussion on this aspect can conveniently start with the decision of a learned single of this Court in R. Gandhi and Others Vs. Union of India
(UOI) and Another, , which has been subsequently followed by many other High Courts. The said case related to a Public Interest Litigation
seeking redressal for the trials and tribulations undergone by the minority Sikh Community of Coimbatore in the wake of assassination of Smt.
Indira Gandhi on 31st October, 1984. In the said case, it was found:
... It needed no political sagacity or administrative maturity to guage the feelings of the people and anticipate the potentiality for mischief by anti-
social elements taking advantage of the situation and including in acts of murder, arson and looting. . . . Unfortunately the law enforcing authorities
failed to give protection to the properties, residential and non-residential, stock-in-trade and household articles of these members of the Sikh
Community. As a result, the unruly hooligans took the situation under their control, ransacked these buildings, looted the valuables and set fire
thereto. Their motor vehicles have also been consigned to fire. In this process of destruction the properties of some members of the other
communities in the vicinity shared the same dismal fate. ...
16.1 Placing reliance upon several decisions of the Supreme Court, the learned single Judge further observed:
The maintenance of law and order is the primary duty of the State and under our Constitution it is a State subject and tops the State List. No
Government worth the name can abdicate this function and put the life and liberty, the hearth and home of the citizens in jeopardy. Article 38 of the
Constitution enjoins on the State to strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in
which justice, social, economic and political, shall inform all the institutions of the national life. Under Article 19(a) and (g) of the Constitution, any
citizen of this country is entitled to reside and settle in any part of the Territory of India and to practice any profession or to carry on any
occupation, trade or business. Article 21 lays down that no person shall be deprived of his right or personal liberty except according to the
procedure established by law. As pointed out by the Supreme Court in Bombay Pavement Dweller''s case AIR 1986 SC 1980, no person can live
without the means of living, that is, the means of livelihood and the easiest way of depriving a person of his right to life would be to deprive him of
his means of livelihood to the point of abrogation. Under Article 300A of the Constitution, no person shall be deprived of his property save by
authority of law and to allow his properties to be reduced to ashes by the force of darkness and evil is a clear deprivation of the right to property
guaranteed by the Constitution. The members of the Sikh Community form an integral part of the Indian society; they have every right to settle
down in Coimbatore and carry on their profession. They have the Constitutional right to live and they cannot be deprived of their means of
livelihood. Their right to property is inviolable. All these Constitutional rights of the Sikhs and a few members of the other communities have been
flagrantly infringed by the inaction of the law enforcing authorities. Fundamental rights are not mere brutum fulmen. They are the throbbing
aspirations and realities of civilised human life; they cannot be rendered desuetude or dead-letter or as observed by Bhagwati, J. as he then was, ''a
paper parchment, a teasing illusion and a promise of unreality'', by the failure of the State to protect those rights. These unfortunate victims of arson
and violence are, therefore, entitled to seek reasonable compensation from the State of Tamil Nadu, which has failed in its duty to protect their
Constitutional and legal rights.
16.2. Ultimately, the learned single Judge directed payment of compensation to the victims of the riot as per the report of the Collector of
Coimbatore. Such decision was challenged by the State Government in Writ Appeal No. 314 of 1989. The Division Bench in the judgment dated
8.12.1989, took note of the fact that in number of judgments the victims of riots have been awarded compensation in public interest litigations and
ultimately upheld the decision of the learned single Judge. It is thus evident that the decision of the leaned single Judge received the imprimatur of
approval of the Division Bench.
When a similar question cropped up in the High Court of Jammu and Kashmir, R.P. Sethi, J., as His Lordship then was, relying upon the
aforesaid decision of the single Judge of the Madras High Court and several decisions of the Supreme Court observed in the decision reported in
Inder Puri General Store and Others Vs. Union of India (UOI) and Another, ,
... The constitutional set up in this country envisages that all communities have a right to life and practice their religion according to their
conscience. All citizens of the country have a right to carry on any profession or trade within the limits of law and the State is under an obligation to
protect their life and property ensuring them all the benefits of fundamental rights enshrined under the Part III of the Constitution. As and when life
and property, as discussed herein above, is taken away by any individual or organisation, a duty is cast upon the State representing the will of
people to compensate the victim by granting adequate compensation. The monarchial rule has to be distinguished from democratic set up and the
State cannot shirk in its responsibility to protect the life, liberty and property of the citizens. On their failure to protect the life, liberty and property
of the citizens, State is under a constitutional obligation to compensate the victim adequately. The argument of the learned Advocate General that
the State was under no obligation to compensate the victims of communal riots, is without any basis and contradictory in terms in view of the
actions already taken in that behalf. If it was not the responsibility of the State to provide compensation, what was the necessity of passing orders
for providing ex gratia grant and lump sum amounts as compensation for the losses suffered. The State represents the will of the lapses of the
Rulers, a right accrues to them for award of compensation. As and when the life and liberty of any person is taken away, a presumption arises of
the failure of the State machinery to protect the life and property of the individuals involved.
It cannot be denied that the maintenance of law and order is the duty of a responsible Government who could not abdicate this function and
allow the life and liberty of the citizens in jeopardy.
17.1 After extracting para 21 of the decision in AIR 1989 Madras 205 (cited supra), it was further observed:
... In that case the quantum of compensation was directed to be paid as per the report of the Collector of Coimbatore as assessed and
recommended by him. In this case also the constitution of an expert committee and assessment of compensation of the actual loss suffered by the
petitioners, is not dispute. The petitioners are, therefore, entitled to the grant of relief as prayed for by them.
A similar question arose before the Andhra Pradesh High Court in the decision reported in I(2001) CLT 225 (J.K. Traders v. State of A.P.
and Ors.). In the said case, the aftermath of assassination of Mr. Rajiv Gandhi, witnessed large scale disturbances and destruction of properties.
The individual, whose property has been destroyed, sought for compensatory relief through writ of mandamus. The Government had appointed a
Commission of Inquiry u/s 3 of the Commissions of Inquiry Act and Mr. M.R.A. Ansari, Retired Chief Justice of Jammu and Kashmir, was
appointed as one-man Commission. The Commission had submitted a report, which was accepted by the Government. In such report, it had been
indicated that there was large-scale damage to the private properties especially belonging to the leaders of Telugu Desam Party. The Commission
found fault with the police as the police had not taken any action within their control, which according to the Commission was dereliction of duty.
The petitioner got the damages surveyed by the recognised Surveyors, who assessed the damages at Rs. 1,51,50,000/- and the Insurance Loss
Assessor has assessed the damages at Rs. 1.35 crores. The petitioner contended that on account of incompetent and ineffective handling of the
situation by the police, they failed to protect the right of the petitioner under Articles 14, 19(1)(e), 19(1)(g) and 21 of the Constitution of India and
filed the writ claiming compensation. In the counter, the Government took the stand that on account of news of death, grief-stricken people came
out to streets to record protest and the unsocial elements took advantage of the situation and indulged in violent acts and caused damage to private
and public properties throughout the State. It also took the stand that the police took all possible steps to control the situation. On the basis of the
report of the One-man Commission, the Government had extended certain reliefs to different categories of persons ex gratia and certain other
benefits were also given. A stand was also taken that the State Government cannot be held responsible for such damages caused by the rioters.
18.1 The learned single Judge of the High Court, after referring to several decisions of the Supreme Court as well as the decision of the Madras
High Court in R. Gandhi and Others Vs. Union of India (UOI) and Another, , summarised the position as follows:
A survey of the entire judgments of the Supreme Court as well as the other High Courts, on the question of award of compensation for
violation of the fundamental rights, the following principles can be deduced:
(1) Constitutional mandate enjoins upon the State to protect the person and property of every citizen and if it fails to discharge its duty, the State is
liable to pay the damages to the victims. (2) The failures or inactions on the part of the State which led to the violation of the fundamental right
more especially under Articles 14, 19 and 21 of the Constitution of India should have been direct nexus to the damage caused/suffered.
(3) The State cannot claim defence of sovereign immunity in the guise of the discharge of the sovereign functions in the constitutional remedy. It
does not clothe the State with right to violate the fundamental rights guaranteed under Part III subject to certain restrictions.
(4) The State while undertaking commercial activity cannot plead the sovereign immunity, in case of tortuous acts done by the employees of the
State. It is only vicariously liable.
(5) The Supreme Court or the High Court are entitled to render compensatory justice by awarding reasonable monetary compensation under
Article 32 or 226 of the Constitution of India, for the injury - mental, physical, fiscal - suffered by the individual for violation of fundamental rights
guaranteed under the Constitution. But, however, it must be conclusively established that the State failed to take any positive action in protecting
the fundamental rights of the citizens.
(6) It is not necessary that the victim should approach the Civil Court by invoking common law remedy for claiming damages for violation of the
fundamental rights. The option is left to the victim to claim the damages by invoking either the constitutional remedy or civil remedy. Since the
constitutional remedy is a public law remedy, the actual victim need not approach the Court. The relief can also be awarded either by exercise of
suo motu power or in a public interest litigation case.
(7) The quantum of compensation varies from case to case depending upon the nature of loss suffered by the victim. There cannot be any strait-
jacket formula for awarding the compensation under Article 226 of the Constitution of India.
18.2 Ultimately it was concluded in paragraph 41 as follows:
But the question that calls for consideration is whether the petitioner is entitled to claim the compensation on actuals. It must be remembered
that this is a remedy invoked by the petitioner under Article 226 of the Constitution of India and such remedy is purely discretionary in nature,
which cannot be equated with the remedy under common law jurisdiction. Therefore, while considering the matter of compensation under Article
226 of the Constitution of India, the Courts have to adopt the principle approximation and not the actuals while awarding the compensation. That is
the reason the Supreme Court in some cases granted compensation observing that the compensation is deductible from the compensation that is
claimed under the common law remedy. Thus, the compensation awarded must be fair and reasonable and commensurate with the damages and
set-backs faced by the victim. It is also to be remembered in this regard that the petitioner did not invoke the common law remedy by filing a suit
and if he is relegated to the Civil Courts for claiming damages now, the claim would be barred by limitation. Under those circumstances, this Court
feels that this is a fit case that this Court should award appropriate compensation. It is not the case that the claim for insurance was closed and that
the claims were negatived by the insurance. But, on the other hand, it is stated that still the matter is pending before the Authorities. The reasons for
not processing the claim before the insurance are not forthcoming. Be that as it may, since this is a case where the petitioner had admittedly
suffered huge loss on account of the positive inaction on the State machinery, which resulted in gross violation of fundamental rights under Articles
19 and 21 of the Constitution of India, he is entitled for reasonable and appropriate compensation.
In Sri Lakshmi Agencies and Others Vs. Govt. of A.P. and Others, , the learned single Judge, while recognising that compensation can be
given where negligence of the State is found, declined to give compensation in that particular case as in that case it was found that there was no
negligence on the part of the concerned officials in tackling the law and order situation.
In K.V. Joseph and Others Vs. State of Kerala and Others, , similar destruction of property took place. Een though the decision in R. Gandhi
and Others Vs. Union of India (UOI) and Another, was not specifically referred to, almost similar sentiments were expressed in the following
words:
The petitioners have the right to protection of life as guaranteed under Article 21 of the Constitution of India. That includes a right to decently
live in a residential house, without intervention from others. The expression ''life or personal liberty'' has been held to include the right to live with
dignity. In the case of the petitioner No. 4, that right has been violated on 23.9.1993 when her residential building had been demolished by a mob.
That would not have taken place if the police had acted taking into account the incident that happened on 20.9.93 and also the complaints made in
Exhs.P4 to P6. Thus, the police and the State machinery failed to protect the rights to live peacefully and with dignity available to the petitioner No.
Thus, her right guaranteed under the Constitution had been totally violated because of the inaction on the part of the police machinery under the
State. When the fundamental right guaranteed under the Constitution is so nakedly violated because of the inaction on the part of the police and of
the State machinery, necessarily such a citizen is entitled for compensation from the State. In the case reported in Lucknow Development Authority
v. M.K. Gupta, 1993 CCJ 1100 (SC) the Supreme Court observed as follows:
The administrative law of accountability of the public authorities for their arbitrary and even ultra vires action has taken many strides. It is now
accepted both by this Court and English courts that the State is liable to compensate for loss or injury suffered by a citizen due to arbitrary action
of its employees.
The properties of petitioner Nos. 1 to 3 were demolished on 20.9.1993. At that time, the police could not have prevented it. The petitioners have
no case that they had approached the police on any day earlier than 21.9.1993. Therefore, the petitioner Nos. 1 to 3 cannot claim compensation in
respect of the injury that had taken place because of the demolition on 20.9.93. They can approach the appropriate authority seeking damages
against the persons who caused such damages.
But, the case of the petitioner No. 4 is not like that. Her residential building was demolished on 23.9.1993, after the police had been apprised
of the situation prevailing there, in Exhs.P4 to P6. It is stated that the police including the respondent No. 3 had assured necessary protection and
that there would be no further vandalism. But, nothing was done by the police. Police officers, the respondent Nos. 3 and 4, have not denied
receipt of Exhs.P4 to P6 or the averments of the petitioners that they had been assured protection and that no vandalism would recur. Therefore, it
is conclusive that the incident that took place on 23.9.1993, demolition of the building of the petitioner No. 4, was solely because of the inaction on
the part of the police. This violated the fundamental right guaranteed to the petitioner No. 4 under Article 21 of the Constitution of India and the
''administrative law of accountability'' of respondent Nos. 1 to 4, as held by the Supreme Court in Lucknow Development Authority v. M.K.
Gupta 1993 CCJ 1100 (SC), shall extend to compensate the petitioner No. 4. This court exercising its power under Article 226 of the
Constitution can definitely grant compensation in terms of the remedy available under public law based on strict liability for contravention of the
fundamental rights....
It is no doubt true that in the aforesaid decisions, the learned Judges have proceeded on the footing that compensation is payable when a
fundamental right is affected on account of any negligent act or dereliction of duty. The destruction of property was considered as violation of
fundamental right under Article 21. Even assuming that destruction of property may not come within such fundamental right, in our opinion, such
right being a Constitutional right, is also required to be protected. It is the duty of the State to protect life, liberty and property of a person and any
negligence or dereliction of duty on the part of the Government machinery would obviously make the State Government liable. However, the
question of amount of compensation payable is obviously a matter of inference to be considered on facts of each case.
That in a fit case the State can be asked to pay compensation to the victims of the riot either when their life is affected or their property is
affected appears to have been recognised by the Supreme Court in the decision reported in S.S. Ahluwalia Vs. Union of India and Others, . The
Delhi High Court in Bhajan Kaur v. Delhi Administration C.W.P. No. 1429 of 1996 had observed that the State has duty to protect the life of its
citizens and the State has to pay compensation. The High Court of Delhi by its order dated 5.7.1996 held that in the expanded meaning attributed
to Article 21 of the Constitution it is the duty of the State to create a climate where members of the society belonging to different faiths, castes and
creeds live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual which should not be
jeopardised or endangered.
A writ petition was filed in the Supreme Court under Article 32 contending that similar direction relating to payment of compensation should apply
to similar cases all over the country. The Supreme Court observed:
Certain claims have been made in para 13.3 of this writ petition setting out certain facts which need to be verified. After this petition was filed
notices were issued to the Governments of different States and they have filed responses in each one of those cases stating the steps that have been
taken by them in cases where there had been death or other kinds of violence resulting in injuries or loss of property. But in the nature of the
circumstances of the case, it is very difficult for us to extend the decision of the High Court of Delhi in Bhajan Kaur v. Delhi Administration to all
the States without making a detailed examination of the circumstances arising in each case. Such examination cannot be done by us. Therefore, it
would be appropriate for us to direct the High Courts of Delhi, Rajasthan, Orissa, Punjab and Haryana, Himachal Pradesh, Patna, Madhya
Pradesh, Allahabad and Bombay in the States of Delhi, Rajasthan, Orissa, Haryana, Himachal Pradesh, Bihar, Madhya Pradesh, Uttar Pradesh,
Maharashtra and Goa to deal with the matter in respect of the allegations made herein in respect of the State falling in their jurisdiction by treating
this writ petition as a petition filed in that High Court. These proceedings, therefore, shall stand transferred to the respective High Courts. A copy
of the petition with annexures and response of the respective State Governments shall be sent to the High Court for appropriate action.
From the aforesaid direction of the Supreme Court it is apparent that the Supreme Court recognised the principle that it is the duty of the State
to protect life and liberty and property and on failure of the State Government to do so, direction regarding compensation can be given. However,
since a detailed examination of the circumstances arising in each case is required to be considered, the Supreme Court observed that such
application, which was filed in the Supreme Court, should be treated to be a writ petition in each High Court and the matter would be finalised
therein.
In (2004) 8 SCC 610 (National Human Rights Commission v. State of Gujarat and Ors.), the writ petitions had been filed in the High Court
by the National Human Rights Commission obviously on behalf of all the victims claiming payment of compensation to the victims on account of
communal riot in the State of Gujarat. It was observed in the said case as follows:
There is no dispute that the issue of compensation to the victims of the Godhra carnage is the subject-matter of writ petitions by victims and a
non-governmental organisation before the Gujarat High Court. In addition, the Gujarat High Court is also in seisin of a petition filed by Citizens for
Justice and Peace in Special Civil No. 3217 of 2003 in which the question of implementation of a Rehabilitation Scheme framed by the State is in
question. It is, however, pointed out to us by the learned amicus curiae and the petitioners that while the High Court is monitoring the
implementation of the Scheme framed by the State Government for payment of compensation to the victims, the Scheme itself is questionable in
that many aspects of the Scheme are deficient. For example, it is submitted, the Scheme does not provide for a realistic compensation in respect of
damage to property. It is also submitted that the Scheme limits the compensation payable only to death or permanent disablement while excluding
cases where the victim may have otherwise suffered grievously, for example, by burning, etc. It is also submitted that the victims of sexual offences
have not been brought within the purview of the Scheme at all. It is also submitted that the Scheme should be according to the one formulated by
this Court in connection with the Cauvery riots reliefs as in Ranganathan v. Union of India.
In our view, these all are issues which can be raised in the pending writ petitions before the High Court since the High Court would have the
jurisdiction to consider each of the grievances raised. In fact, having regard to the nature of the claim it will be more appropriate that the High
Court should deal with the issues raised in the first instance.
Thus a conspectus of the decisions of several High Courts and even those of the Supreme Court makes it clear that it is the Constitutional
obligation of the State to protect the life, liberty and property of a person and where the State, that is to say its machinery without any justification
fails in such duty resulting in loss to a person the State cannot avoid its responsibility by taking refuge under a plea that the damage was done by
the rioteers and not by State''s machinery.
The allied question is the Forum where the remedy is to be sought for. This question is again a fiercely fought legal battle as evident from
several decisions of various High Courts and the Supreme Court. The decisions already analysed indicate that depending upon the facts and
circumstances, remedy can be sought for under the public law remedy concept by invoking jurisdiction of the High Court under Article 226 or
even that of the Supreme Court under Article 32. In this connection, it is fruitful to refer to some of the decisions of the Supreme Court.
In S.P. Gupta Vs. President of India and Others, , it was observed:
... There may be cases where the State or a public authority may act in violation of a constitutional or statutory obligation or fail to carry out such
obligation, resulting in injury to public interest or what may conveniently be termed as public injury as distinguished from private injury. ... The view
has, therefore, been taken by the Courts in many decisions that whenever there is a public wrong or public injury caused by an act or omission of
the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient
interest ...can maintain an action for redressal of such public wrong or public injury.
The aforesaid observation made by the Supreme Court in the context of public interest litigation can be made applicable where the wronged
individuals approach the court for redressal of their grievances.
In Bandhua Mukti Morcha Vs. Union of India (UOI) and Others, , it was observed:
We may point out that what we have said above in regard to the exercise of jurisdiction by the Supreme Court under Article 32 must apply equally
in relation to the exercise of jurisdiction by the High Courts under Article 226, for the latter jurisdiction is also a new constitutional jurisdiction and
it is conferred in the same wide terms as the jurisdiction under Article 32 and the same powers can and must therefore be exercised by the High
Courts while exercising jurisdiction under Article 226. In fact, the jurisdiction of the High Courts under Article 226 is much wider, because the
High Courts are required to exercise this jurisdiction, not only for enforcement of a fundamental right but also for enforcement of any legal right and
there are many rights conferred on the poor and the disadvantaged which are the creation of statute and they need to be enforced as urgently and
vigourously as fundamental rights.
In M.C. Mehta and another Vs. Union of India and others, it was held,
...These applications for compensation are for enforcement of the fundamental right to life enshrined in Article 21 of the Constitution and while
dealing with such applications, we cannot adopt a hyper-technical approach which would defeat the ends of justice. This Court has on numerous
occasions pointed out that where there is a violation of a fundamental or other legal right of a person or class of persons who by reason of poverty
or disability or socially or economically disadvantaged position cannot approach a court of law for justice, it would be open to any public spirited
individual or social action group to bring an action for vindication of the fundamental or other legal right of such individual or class of individuals and
this can be done not only by filing a regular writ petition but also by addressing a letter to the court. If this Court is prepared to accept a letter
complaining of violation of the fundamental right of an individual or a class of individuals who cannot approach the court for justice, there is no
reason why these applications for compensation which have been made for enforcement of the fundamental right of the persons affected by the
oleum gas leak under Article 21 should not be entertained. The court while dealing with an application for enforcement of a fundamental right must
look at the substance and not the form. We cannot therefore sustain the preliminary objection raised by Mr. Divan.
... We have already had occasion to consider the ambit and coverage of Article 32 in the Bandhua Mukti Morcha v. Union of India and we
wholly endorse what has been stated by one of us namely, Bhagwati, J. as he then was in his judgment in that case in regard to the true scope and
ambit of that article. It may now be taken as well settled that Article 32 does not merely confer power on this Court to issue a direction, order or
writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people
and for that purpose this Court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies
designed to enforce the fundamental rights. It is in realisation of this constitutional obligation that this Court has in the past innovated new methods
and strategies for the purpose of securing enforcement of the fundamental rights, particularly in the case of the poor and the disadvantaged who are
denied their basic human rights and to whom freedom and liberty have no meaning.
In Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, , while considering the question of claim of compensation in
custodial death, it was observed:
In view of the decisions of this Court in Rudul Sah Vs. State of Bihar and Another, , Sebastian M. Hongray Vs. Union of India (UOI) and
Others, : Sebastian M. Hongray Vs. Union of India (UOI), , Bhim Singh, MLA Vs. State of Jammu & Kashmir and Others, , Saheli, A Women''s
Resources center, Through Ms Nalini Bhanot and Others Vs. Commissioner of Police Delhi Police Headquarters and Others, and State of
Maharashtra and Others Vs. Ravikant S. Patil, the liability of the State of Orissa in the present case to pay the compensation cannot be doubted
and was rightly not disputed by the learned Additional Solicitor General. It would, however, be appropriate to spell out clearly the principle on
which the liability of the State arises in such cases for payment of compensation and the distinction between the liability and the liability in private
law for payment of compensation in an action on tort. It may be mentioned straightway that award of compensation in a proceeding under Article
32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for
contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in
private law in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which
compensation is awarded in such proceedings. We shall now refer to the earlier decisions of this Court as well as some other decisions before
further discussion of this principle.
Justice Anand in his concurring judgment has observed:
The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary
damages, in proceedings 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 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the
guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen
that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by
granting ""compensation"" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it
does so under he public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its
public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally
understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ''monetary
amends'' under the public law for the wrong done due to breach of public duty of not protecting the fundamental rights of the citizen. The
compensation is in the nature of ''exemplary damages'' awarded against the wrongdoer for the breach of its public law duty and is independent of
the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court
of competent jurisdiction or/and prosecute the offender under the penal law.
In Consumer Education and Research center and others Vs. Union of India and others, , it was observed:
...It is, therefore, settled law that in public law claim for compensation is a remedy available under Article 32 or 226 for the enforcement and
protection of fundamental and human rights. The defence of sovereign immunity is inapplicable and alien to the concept of guarantee of fundamental
rights. There is no question of defence being available for constitutional remedy. It is a practical and inexpensive mode of redress available for the
contravention made by the State, its servants, its instrumentalities, a company or a person in the purported exercise of their powers and
enforcement of the rights claimed either under the statutes or licence issued under the statute or for the enforcement of any right or duty under the
Constitution or the law.
In the decision of the Supreme Court in D.K. Basu Vs. State of West Bengal, , it was observed:
...The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected
to respond to their aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender
cannot give much solace to the family of the victim - civil action for damages is a long-drawn and a cumbersome judicial process. Monetary
compensation for redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at times
perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner
of the family.
The aforesaid decision, in the words of the Supreme Court in 2001 SCC (Cri) 1426 (M.S. Grewal and Anr. v. Deep Chand Sood and Ors.)
... has opened up a new vista in the jurisprudence of the country. The old doctrine of only relegating the aggrieved to the remedies available in civil
law limits stands extended....
The Supreme Court in the latter decision, went on to observe:
Currently judicial attitude has taken a shift from the old draconian concept and the traditional jurisprudential system - affectation of the people
has been taken note of rather seriously and the judicial concern thus stands on a footing to provide expeditious relief to an individual when needed
rather than taking recourse to the old conservative doctrine of the civil court''s obligation to award damages. As a matter of fact the decision in
D.K. Basu has not only dealt with the issue in a manner apposite to the social need of the country but the learned Judge with his usual felicity of
expression firmly established the current trend of ""justice-oriented approach"". Law courts will lose their efficacy if they cannot possibly respond to
the need of the society - technicalities there might be many but the justice-oriented approach ought not to be thwarted on the basis of such
technicality since technicality cannot and ought not to outweigh the course of justice.
It may prima facie appear that the decision of the Supreme Court reported in Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and Ors.
v. Smt. Sukamani Das and Anr.), wherein it was held that the remedy under Article 226 is not appropriate when disputed questions of fact are
involved, has put a full-stop on the question relating to jurisdiction of the High Court under Article 226 of the Constitution in matters relating to
claim of compensation on account of death due to alleged negligent act of the State or ""other authorities"". However, even while following the
aforesaid decision and upholding the similar objection relating to maintainability of writ petition under similar circumstances, the possibility of
invoking jurisdiction under Article 226 was recognised in AIR 2000 SC 1603 (Tamil Nadu Electricity Board v. Sumathi and Ors.), wherein it was
observed:
In view of the clear proposition of law laid by this Court in Sukamani Das case 1999 AIR SCW 3383 : AIR 1999 SC 3412 when disputed
question of fact arises and there is clear denial of any tortuous liability remedy under Article 226 of the Constitution may not be proper. However it
cannot be understood as laying a law that in every case of tortuous liability recourse must be had to a suit. When there is negligence on the face of
it and infringement of Article 21 is there it cannot be said that there will be any bar to proceed under Article 226 of the Constitution. Right of life is
one of the basic human rights guaranteed under Article 21 of the Constitution. In U.P. State Cooperative Land Development Bank Ltd. Vs.
Chandra Bhan Dubey and Others, where one of us (Wadhwa, J) was a party, this Court after examining various decisions of the courts on the
power of the High Court under Article 226 of the Constitution observed that the language of Article 226 of the Constitution does not admit of any
limitation on the powers of the High Court for the exercise of jurisdiction thereunder though by various decisions of this Court with varying and
divergent views, it has been held that jurisdiction under Article 226 can be exercised only when a body or authority, the decision of which is
complained, was exercising its power in the discharge of public duty and that writ is a public law remedy.
While considering the question of public law remedy, a note of caution was appended by the Supreme Court in Rabindra Nath Ghosal Vs.
University of Calcutta and Others, , which observed:
There can be no dispute with the proposition of law. A claim in public law for compensation for contravention of human rights and fundamental
freedoms, the protection of which is guaranteed in the Constitution is undoubtedly an acknowledged remedy for protection and enforcement of
such right and such a claim based on strict liability made by resorting to a constitutional remedy, provided for the enforcement of fundamental right
is distinct from, and in addition to the remedy in private law for damages for the tort, as was held by the Court in Nilabati Behera. It is in fact an
innovation of a new tool with the court which are the protectors of the civil liberty of the citizens and the court, in exercise of the same, would be in
a position to grant compensation when it comes to the conclusion that there has been a violation of fundamental rights under Article 21. It is in this
context, this Court has observed:
The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established
violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction.
The courts having the obligation to satisfy the social aspiration of the citizens have to apply the tool and grant compensation as damages in public
law proceedings. Consequently when the court moulds the relief in proceedings under Article s 32 and 226 of the Constitution seeking
enforcement or protection of fundamental rights and grants compensation, it does so under the public law by way of penalising the wrongdoer and
fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizens. But it would
not be correct to assume that every minor infraction of public duty by every public officer would commend the court to grant compensation in a
petition under Article s 226 and 32 by applying the principle of public law proceeding. The court in exercise of extraordinary power under Article s
226 and 32 of the Constitution, therefore, would not award damages against public authorities merely because they have made some order which
turns out to be ultra vires or there has been some inaction in the performance of the duties unless there is malice or conscious abuse. Before
exemplary damages can be awarded it must be shown that some fundamental right under Article 21 has been infringed by arbitrary or capricious
action on the part of the public functionaries and that the sufferer was a helpless victim of that act.
While considering the question of defence of sovereign immunity, the Supreme Court in N. Nagendra Rao and Co. Vs. State of Andhra
Pradesh, , observed:
But there the immunity ends. No civilised system can permit an executive to play with the people of its country and claim that it is entitled to act
in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today
can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State
without any remedy. From sincerity, efficiency and dignity of State as a juristic person, propounded in nineteenth century as sound sociological
basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking
of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government on a par with
any other juristic legal entity. Any watertight compartmentalization of the functions of the State as ""sovereign and non-sovereign"" or ""governmental
and non-governmental"" is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot
be doubted. But with the conceptual change of statutory power being statutory duty for sake of society and the people the claim of a common man
or ordinary citizen cannot be thrown out merely because it was done by an officer of the State even though it was against law and negligent. Needs
of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a Welfare State is not shaken....
No discussion on these aspects can be complete without reference to the decision in The Chairman, Railway Board and Others Vs. Mrs.
Chandrima Das and Others, , a decision which has been fairly brought to our notice by the learned Additional Advocate General, it was observed:
Having regard to what has been stated above, the contention that Smt. Hanuffa Khatoon should have approached the civil court for damages
and the matter should not have been considered in a petition under Article 226 of the Constitution, cannot be accepted. Where public functionaries
are involved and the matter relates to the violation of Fundamental Rights or the enforcement of public duties, the remedy would still be available
under the Public Law notwithstanding that a suit could be filed for damages under Private Law.
Now the inevitable end of the journey or may be beginning of another. In view of the various decisions noticed by us and many other decisions
referred to in such decisions, the following conclusions can be reached. The State is not necessarily liable in every case where there is loss of life or
damage to the property during rioting. Where, however, it is established that the officers of the State ordained with duty of maintaining law and
order have failed to protect the life, liberty and property of person and such failure amounts to dereliction 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 the officials are available, the High Court under Article 226 can issue appropriate direction. Where,
however, the main aspect relating to culpable negligence of the officer is seriously disputed, filing of suit may be more appropriate remedy. No hard
and fast rule can be laid down on these aspects and obviously the availability of remedy under Article 226 would depend upon the facts and
circumstances of each case. Compensation for loss to the property can also be claimed under Article 226 and merely because right to property
has been deleted from the Chapter of Fundamental Rights and has been recognised as a Constitutional right, would not disentitle the High Court to
examine that question in any appropriate case.
One last question. The question relating to value to be attached to the report of a Commission constituted under the Commissions of Inquiry
Act.
It cannot be disputed that the report of a Commission of Inquiry is not binding on the State which constitutes such Commission of Inquiry nor
its findings are binding on those against whom any recommendation is made. The conclusions of a Commission of Inquiry are not admissible in a
Court of law, in criminal case or even in civil case. Such conclusions are merely advisory in nature.
In Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar and Others, , it was observed:
... But seeing that the Commission of Inquiry has no judicial powers and its report will purely be recommendatory and not effective proprio
vigore and the statement made by any person before the Commission of Inquiry is, u/s 6 of the Act, wholly inadmissible in evidence in any future
proceedings, civil or criminal, there can be no point in the Commission of Inquiry making recommendations for taking any action ''as and by way of
securing redress or punishment'' which, in agreement with the High Court, we think, refers, in the context, to wrongs already done or committed,
for redress or punishment for such wrongs if any, has to be imposed by a court of law properly constituted exercising its own discretion on the
facts and circumstances of the case and without being in any way influenced by the view of any person or body, howsoever august or high
powered it may be.
Such observations of the Supreme Court were followed in State of Karnataka Vs. Union of India (UOI) and Another, .
Yet, it has to be noticed as it was done by the Supreme Court in T.T. Antony Vs. State of Kerala and Others,
It is thus seen that the report and findings of the Commission of Inquiry are meant for information of the Government. Acceptance of the report of
the Commission by the Government would only suggest that being bound by the rule of law and having duty to act fairly, it has endorsed to act
upon it....
Therefore, even if the report of a Commission of Inquiry is not legally binding and has got no evidentiary value, once such report, to the extend
it is accepted by the State, obviously it would not be fair on the part of the State to contend that it is not bound by the findings of the Commission
of Inquiry. In the language of the Supreme Court,
eptance of the report of the Commission by the Government would only suggest that being bound by the rule of law and having duty to act fairly, it
has endorsed to act upon it.
The questions referred to are answered accordingly. The writ petitions shall now be placed for hearing before the appropriate court.