Union of India vs Shiromani Gurdwara Parbandhak Committee, Amritsar and Others

Gokal Chand Mital, J.—Shiromani Gurd-wara Parbandhak Committee, Amritsar (hereinafter called the S.G.P.C.) and its President Gurcharan Singh, filed a suit on 2.2.1985 in forma pauperis to claim damages of rupees one thousand cores against Union of India through Home Secretary, Union of India through Finance Secretary and the State of Punjab for the loss caused to movable and immovable properties of various Gurdwaras including Golden Temple, Amritsar, during operation Bluestar in June, 1984 and thereafter ; and for mandatory injunction directing the Defendants and their principal functionaries to tender unqualified apology before the Sikh Sangat for causing mental, sentimental, social and spiritual set back and deep sense of injury to the honour and self-respect of the Sikhs and for a declaration that the attack on various Gurdwaras mentioned in Annexure ''P-1'' by the Armed Forces, Para-Military Forces of the Union of India and Police Force of the State of Punjab was wholly unwarranted, unprovoked, malicious and designed by the then Ruling Party for gaining political advantage by dubious, questionable and unlawful methods.

The suit was contested by the Defendants and it was pleaded that the action taken during the operation Bluestar was under the sovereign powers of the Government and, therefore, suit for damages was not maintainable. Various other pleas were also raised for dismissal of the suit.

While the suit was pending, on 30.11.1985 the Plaintiffs made an application under Order 6, Rule 17 of the CPC to seek amendment of the plaint so as to add 34 more persons detailed in para 2(i) of the application. Out of the 34 persons sought to be added, nineteen are the central ministers, five are police officers and Deputy Commissioners working in the State of Punjab and the rest are four Army Generals in charge of the operation Bluestar ; the then Director General of C.R.P ; the then Inspector General of Border Security Force and the four Advisers to the then Governor of Punjab. These persons were sought to be added on the plea that they were personally responsible for carrying out wanton, illegal and motivated attack, destruction and damage to the movable and immovable properties of the Gurdwaras and had acted in conspiracy with each other and to further the illegal and unlawful, political ambitions of the ruling party and, therefore, they were also jointly and severally liable with the Union of India and the State of Punjab. On the added persons, notice u/s 80 of the CPC had been served now and that is why they were being added after service of notice. The application was opposed by the Union of India and a written reply was filed. It was highlighted that the suit as originally brought was incompetent and the Civil Court had no jurisdiction to try the same and unless it was held that the main suit was maintainable, the question of allowing the amendment did not arise. It was also the stand in the reply that under the Armed Forces Punjab and Chandigarh) Special Powers Act, 1983, Punjab had been declared a disturbed area and the Armed Force Officers were authorised to enter the various hideouts and search the persons who were involved in the crimes and they were further authorised to use force even to the extent of causing death in certain circumstances and in view of Section 7 thereof no suit or other legal proceedings could be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Act. It was also the stand of the replying Defendants that similar powers were given to the Punjab Police Officers under the Punjab Disturbed Areas Act, 1983, and no suit, prosecution or other legal proceedings against the Punjab Officers could be instituted except with the previous sanction of the State Government as provided in Section 6 thereof, and since sanction had not been obtained, they could not be added as Defendants One of the additional points raised which deserves to be noticed, is that the suit against the added persons was time barred on the date the application for amendment was filed and on this account also, they could not be added as parties to the suit.

The trial Sub Judge by order dated 19.4.1986 allowed the application by treating it to be one under Order 1, Rule 10 of the CPC and ordered that 34 persons sought to be added as parties, be impleaded as such. This revision is directed against the aforesaid order, at the instance of Union of India, through the Secretary to Government of India, Ministry of Home Affairs, New Delhi.

Shri Anand Swaroop, Senior Advocate, appearing for the Petitioner, has argued that the suit itself was not maintainable as the damages were claimed out of an action taken by the Government of India under its sovereign powers and in this behalf he relies on Kasturilal Ralia Ram Jain Vs. State of Uttar Pradesh, , It is urged that unless the suit is found to be competent, application for adding the Central Ministers, Army Generals, Officers working in the State of Punjab and Advisers to the Governor of Punjab could not be lightly allowed and the persons could not be ordered to be added as parties to the suit. He has placed reliance on the following observations from the aforesaid decision:-

Thus, it is clear that this case recognises a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants, and acts committed by public servants which are not referable to the delegation of any sovereign powers. If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is: was the tortuous act committed by the public servant in discharge of statutory functions which are refearble to, and ultimately based on, the delegation of the sovereign powers of the State to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie.

On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. The act of the public servant committed by him during the course of his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose. This distinction which is clear and precise in law, is sometimes not borne in mind in discussing questions of the State''s liability arising from tortious acts committied by public servants. That is why the clarity and precision with which this distinction was emphasised by Chief Justice Peacock as early as 1861 has been recognised as a classic statement on this subject.

A reading of the aforesaid quotation clearly shows that if it is found that the operation Bluestar was pursuant to the sovereign powers of the Government of India, the suit would not be competent and, therefore, it may be wholly futile to add any parties to it. Whethere for this matter, evidence would have to be recorded or not but keeping the importance of the case and the dignitaries involved the matter should have been considered by the trial Court with a little caution. It appears that the trial Court has decided the application in routine.

The aforesaid observations of mine are supported by the fact that Section 7 of the Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983 (Act No. 34 of 1983) and Section 6 of Punjab Disturbed Areas Act. 1983 (Act No. 32 of 1983) have granted immunity to the persons taking action in exercise of the powers conferred upon them by these Acts, except with the previous sanction of the Central or State Government, as the case may be. Sections 7 and 6 of the respective Acts are reproduced below:

Armed Forces (Punjab and Chhandigrh) Special Powers Act, 1983 (Act No 34).

Section 7. Protection of persons acting in good faith under this Act.-

No prosecution, suit or other legal "proceedings shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act." "Punjab Disturbed Areas Act, 1983.

Section 6. Protection of persons acting under Sections 4 and 5.-

This aspect of the matter had to be kept in fore-front but the Court below completely lost sight of these sections and dwelt more on the matter that the Court had the power to grant amendment and after amendment of the plaint or addition of the parties, other points could be gone into. If the suit is not competent against the added persons by virtue of the aforesaid two sections without prior permission of the concerned Governments, it would be a case of clear harassment to those persons if they are ordered to be impleaded as parties to the suit when they cannot be made parties.

The next submission, that the suit on 30.11.1985 against the persons sought to be added as parties, would be time barred, has also prima facie merit. Article 72 of the Schedule to the Limitation Act, 1963 provides a limitation of one year to claim compensation for doing or for omitting to do an act and this period of one year starts when the act or omission takes place In this case, the operation Bluestar took place within the first ten days of June. 1984 and even if time allowed for giving notice u/s 80 of the CPC is allowed, the suit on 30.11.1985 was prima facie barred by time.

As already observed in the opening part, unless it is found by the Court dealing with the suit that the suit against the Union of India and the State of Punjab is competent after recording a finding that because the operation Bluestar was not under their sovereign powers, only then the question for consideration of the application either for amendment or for adding the 34 persons would arise and that is why I have observed that prima facie the application could not be lightly allowed as i has been done by the Court below.

Before the parting, an argument raised on behalf of the Respondents may be noticed that the added persons should have come to this Court in revision and the revision at the instance of Union of India is not competent. I am not impressed with this argument because Union of India had opposed the application and rightly so because it was for the Union of India to support the cause of the persons sought to be added as parties to the suit. It was the Union of India who had opposed the application before the Court below and after it was allowed, only then the 34 persons were brought on the record as Defendants. Hence, the revision is properly filed.

For the reasons recorded above, this revision is allowed and the order of the Court below dated 19.4.1986 is hereby set aside. I am told that the suit (application in forma pauperis) stands transferred from the Court of Senior Sub Judge, Amritsar to Delhi High Court under orders of the Supreme Court and is pending consideration there. As and when the Delhi High Court comes to the conclusion that the suit is maintainable against the Union of India and the State of Punjab, only thereafter the application filed by the Plaintiffs on 30.11.1985 to seek amendment of the plaint so as to add 34 more persons, would be considered in accordance with law on merits. However, if it is held by that Court that the suit is not competent, then the application would, of course, fail with it.