1. The aftermath of assassination of Rajiv Gandhi, the then PrimeMinister of this country on 21st May, 1991, witnessed large scale disturbances and destruction of properties.
2. This writ petition is filed seeking compensatory relief through writ of mandamus of after declaring that the respondents failed to protect the properly of the petitioner in Ramakrishna 70 M.M. Theatre and the NTR Estate on the intervening night of 21st and 22nd May, 1991, and award appropriate compensation on the basis of the Report of the Commission of Inquiry constituted by the Government of Andhra Pradesh.
3. Petitioner is the proprietor of Ramakrishna 70 M.M. Theatre in Hyderabad city. The Theatre is situate in NTR Estate in the Central locality of the city. On the night of 21-5-1991, consequent on the assassination of Sri Rajiv Gandhi, violent incidents erupted in the State of Andhra Pradesh including the twin cities of Hyderabad and Secunderabad, large scale destruction of property had occurred in Rama Krishna 70 M.M. where the theatre was located.
4. It is the case of the petitioner that coming to know about the unfortunate incident of assassination of Former Prime Minister, one Mr. Ramanaiah of Ahwanam Hotel, which is situated in NTR Estate has informed the Abids Police Station under whose jurisdiction the NTR Estate falls about the possibility of attack being made by the hooligans. He requested the police to provide necessary protection. The police did not take any action immediately. It is also the case of the petitioner that one Mr. Amarnath Babu, who was the Incharge of the Telugu Desam Party (for brief the 'TDP.') also contacted the Police Control Room and Commissioner to take necessary security measures and to protect the NTR Estate and the lives of the persons who are the members of the family of N.T. Rama Rao. But,however, more than 100 persons gathered and gate crushed Ramakrishna 70 M.M. Theatre and severely damaged the property. Even though the police had arrived at the spot did not take any steps to prevent the persons from entering into the Estate. Thus they played a second fiddle to the men in power. The mob gathered there were belonging to the Congress Party workers, who entered the Estate and caused extensive damage to the Theatre. The police did not take any action in arresting the activities of the intruders though it could have been possible. After the damage was caused, the Commissioner deputed one Mr. Shiva Shanker, Additional Commissioner of Police, to enquire into the matter leading to the damage of the Theatre. He conducted an enquiry and found the police officers guilty of the dereliction of the duties. But, no action was taken on his report. The petitioner submits that the NTR Estate belongs to TDP leader Mr. N.T. Rama Rao and the Government in power was the Congress and therefore, in order to wreak political vengeance, the property of the TDP leader was deliberately damaged and the police was only a mere spectator.
5. It is also stated that the Government of Andhra Pradesh appointed Commissioner of Inquiry under Section 3 of the Commissioner of Inquiry Act and Mr. Justice M.R.A. Ansari, Retired Chief Justice of J & K State was appointed as one-man-Commission to enquire into the circumstances leading to the violence and various other offences. Commissioner had submitted a report on 29-6-1991 and the Government has accepted the report of the Commissioner. In the report of the Commissioner, it was clearly brought out that there was large-scale damage to the private properties especially belonging to the TDP Leaders. The Commission also found fault with the police and the police did not take any action, which was within their control and found the police guilty of the dereliction of the duty. Thepetitioner got the damages surveyed by the Recognised Surveyors and as per the report of the Surveyor, the loss sustained by the petitioner was assessed at Rs. 1,51,50,000/-and the Insurance Loss Assessor has assessed at Rs.1.35 crores. It is the case of the petitioner that the violence took place on account of the incompetent and ineffective handling of the situation by the police and thereby the police failed to protect the fundamental right of the petitioner under Articles 14, 19(1) and (g) and 21 of the Constitution of India. It is the constitutional duty on the part of the police to protect the interest of the citizens and this obligation was totally disregarded. It is further stated that the petitioners are entitled for the compensation for the loss suffered by them on account of inaction on the part of the police authorities and that the said compensation can be granted under Article 226 of the Constitution of India as it is a violation of the fundamental right of the petitioner. In effect, they seek direction from this Court of direct the State Government to pay the compensation as assessed by the recognised assessors.
6. In the counter filed by the Government, it is stated that the news about the assassination of Mr. Rajiv Gandhi was received at 11 p.m. on 21-5-1991. There were emotions and grief stricken people came out to streets to record protest against the incident. The unsocial elements took advantage of the situation and indulged in violent acts and caused damage to private and public properties through out the State. The State of Andhra Pradesh had swung into the action, Special Control Room was opened at 11 p.m. on 25-5-1991 under the personal supervision of the Chief Secretary. That apart, a core group of IAS Officers was also drafted to monitor the law and order situation. The Control Room functioned till 25-5-1991. The Collectors and District Magistrates were directed over telephones for taking all precautionarymeasures for maintenance of the law and order. Thus, the State administration and the District administration were kept on alert. The essential services were also put on tight security measures. Even the Army was called out and flag march was arranged on 22-5-1991. The Government also constituted a committee to assess the damage caused to the public and private properties and to make suitable recommendations. The Government also constituted one man commission under the Chairmanship of Justice M.R.A. Ansari, Former Chief Justice of J & K State to enquire into the incidents. It is stated that total 3,017 cases of damages to private property were reported and the damage was estimated at Rs.7.39 crores. The Government after examination of the report of the committee, issued G.O. Ms. No.497, dated: 12-8-1991 extending certain reliefs to different categories of persons ex gratia was sanctioned in case of petty persons and business persons and in respect of the large scale damage to rice mills, hospitals, petrol bunks, Theatres etc., number of facilities, sales tax collection of arrears and interest free margin money etc., were granted. Number of officers in the police Department were also kept under suspension, pending enquiry and the Memorandum of ATR (Action Taken Report) was placed on the house on 18-12-1993. The petitioner Theatre was granted Rs.20 lakhs interest free loan and also certain other benefits. It is also stated that Mr. N.T. Rama Rao, father of the writ petitioner filed another writ petition before the Supreme Court in WP No.167 of 1993 seeking similar relief and the same was admitted. Thus, it is stated that the petitioner is not entitled for any compensation. In the last Para of the counter it has given the following reasons for denying the compensation:
'a. Every citizen is responsible for the protection of his own life and property. The State cannot give guaranteedprotection to every citizen in respect of these in, all circumstances as such a guarantee is not feasible practically. But, however, in this case, the Government has taken all steps to prevent the violence and within few hours, the situation was under control.
(b) In an economy like ours where risk can be covered under insurance, the very fact that insurance is available would indicate that the State would not be responsible for hundred per cent protection for individual life, and property. At the same time, it is not denied that the State has no objection to maintain law and order. In view of the vast size of the country and the different fissiparous forces, it is not a practical proposition to expect the State to maintain a man to man cover to watch the life and property of every citizen. The citizens also shall observe their fundamental duties.
(c) If any theory that the State is liable to pay compensation for any damages suffered by an individual is to be accepted, the burden on the rest of the community will be enormous and the State will have to impose an unbearably heavy burden of taxes and rates on other normal citizens who safeguard or insure their own properties. This will be iniquitous.
(d) If the argument that the State is responsible to pay compensation for any damages suffered by an individual on account of a law and order problem is logically extended, the State would be liable to make good to the individual even the losses suffered on account of their or any other acts of individuals which is not a practical proposition.
(e) Whatever ex-gratia is paid is by its very nature 'out of grace' on a humanitarian consideration being paid totide over the immediate crisis and is in on way in the nature of compensation.
With regard to the certificate for estimated loss issued by the Collector, it is stated that the said certificate was granted at the request of the petitioner for processing the insurance claim for damages pending before the Insurance Company. The certificate issued by the Collector dated 12-11-1991 was only for the purpose of enabling the petitioner to avail the insurance benefit only, and not for making a claim against the Government. As already stated, interest free loan of Rs.20 lakhs was provided to the petitioner apart from his Theatre was also exempted from payment of entertainment tax over Rs.16 lakhs. Thus the Government had taken all possible and available steps to prevent any untoward damage to the property of the petitioner.
7. The learned senior Counsel for the petitioner Mr. M.R.K. Chowdhary submits that the petitioner is entitled for the award of the compensation as there was complete failure on the part of the police to protect the property of the citizens and he refers to number of decisions on the subject rendered by the Supreme Court as well as the other High Courts.
8. On the other hand, the learned Additional Advocate-General Mr. Prakash Reddy submits that consequent on the spread of the news of the assassination of former Prime Minister Mr. Rajiv Gandhi, State has alerted all its wings to maintain law and order in the State and also to protect the persons and properties of the citizens in the State. The administration has also taken number of measures and the police had also taken possible steps to avert the possible danger to the person and properties and there was no lapse on the part of the police. With regard to the alleged inaction at the NTR Estate, the learned Additional Advocate-General submits that the policetaken sufficient precaution, but inspite of it, the damage was caused and therefore, in such a situation, it would not be appropriate for this Court to award the damage under Article 226 of the Constitution of India. But it may be an appropriate case for claiming damages under common law remedy. Various factors have to be considered for awarding damages and this Court sitting under Article 226 of the Constitution of India may not be in a position to assess the actual damages if any and award the same. He, however, fairly submits that in view of the recent development of law, it is also permissible for the citizens to claim compensation for the violation of the fundamental rights, but that recourse has to be taken in exceptional cases, otherwise this Court would convert itself into a common taw Court rather than Constitutional Court for the purpose of awarding the damages in the guise of violation of the fundamental rights. He also submits that in a identical situation, where one Vangaveeti Mohana Ranga Rao was on fast unto death, there were large scale disturbances at Vijayawada and huge property of the citizens was damaged. The victims filed writ petitions seeking compensation before this Court by filing a writ petition and the said writ petition was dismissed by the learned single Judge of this Court reported in M/s. Sri Lakshmi Agencies v. Government of Andhra Pradesh, : 1994(1)ALT341 .
9. Before going into the question of award of compensation, it would be necessary to refer to the decisions relied on by the learned Counsel for the parties as to whether a writ petition could be filed seeking compensation.
10. The learned senior Counsel for the petitioner Mr. M.R.K. Chowdhary relied on the following decisions : C. Rama Krishna Reddy v. State, : AIR1989AP235 , R. Gandhi v. Union of India, : AIR1989Mad205 , M.C. Mehta v. Union of India, : 1SCR819 , Charan Lal Sahu v. Union of India, : AIR1990SC1480 , National Human Rights Commission v. State of Arunachal Pradesh, : 1SCR278 .
11. With regard to the tortuous liability of the State consequent on the failure of discharge of sovereign duty and the consequential quantification of the compensation, he relied on the decisions reported in Ranchi Bar Association, Ranchi v. State of Bihar, : AIR1999Pat169 , Jayalaxmi Salt Works (P) Ltd. v. State of Gujarat, : 3SCR866 , P.A. Kulkarni v. Slate of Kamalaka, AIR 1999 Kar. 284, Municipal Corporation of Delhi v. Sushila Devi, : 2SCR1198 , State of Maharashtra v. Tapas D. Neogy, : 1999CriLJ4305 , Nilabati Behera v. State of Orissa, : 1993CriLJ2899 and Chairman, Railway Board v. Chandrimadas, : 2000CriLJ1473 .
12. In Rudul Sah v. State of Bihar, : 1983CriLJ1644 , the petitioner was kept in jail for 14 years after he was acquitted on the suspicious ground that he was insane. He was directed to be released by the Supreme Court in a Habeas Corpus petition in addition to the release the detenue also claimed compensation on account of the deprivation of the fundamental right under Article 21. Deliberating on the question as to whether the Supreme Court has power to award compensation on account of such deprivation of life, if observed thus:
'Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing Orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured is to mulct its violators in the payment of monetary compensation. Administrative sclerosisleading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it had perished in some others too well known to suffer mention, it is necessary to educate ourselves into accepting that respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage down by its officers to the petitioner's rights. It may have recourse against those officers.....'
And accordingly awarded a sum of Rs.35,000/-.
13. In Sebastian M. Hondray v. Union of India, AIR 1984 SC 1026, in a writ of habeas corpus, the State authorities came to be pleaded that the persons must have met with an unnatural death. It was accepted by the Supreme Court and awarded exemplary costs of Rs.1 lakh each to the wives of the living persons. The basis of the said award is, however, not Article 21, but wilful disobedience to the process of the Court amounting to contempt of Court.
14. In Bhim Singh v. State of J & K, : 1986CriLJ192 , where a Member of Legislative Assembly was arrested by the police while he was on the way toLegislative Assembly Session, and in a writ for habeas corpus, the Supreme Court observed thus:
'The police officers ..... acteddeliberately and mala fide and the Magistrate and the Sub-Judge aided them either by colluding with them or by their casual attitude. We do not have any doubt that Shri Bhim Singh was notproduced either before the Magistrate on 11th or before the Sub-Judge on 13th though he was arrested in the early hours of the morning of 10th. There certainly was a gross violation of Shri Bhim Singh's constitutional rights under Articles 21 and 22(2)... We have no doubt that the constitutional rights of Shri Bhim Singh were violated with impunity. Since he is now not in detention, there is no need to make any Order to set him at liberty, but suitably and adequately compensated, he must be. That we have the right to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of this Court in Rudul Sah v. State of Bihar, : 1983CriLJ1644 and Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026. When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case. We direct the first respondent, the State of Jammu and Kashmir to pay to Shri Bhim Singh a sum of Rs.50,000/- within two months from today......'
In C. Ramakrishna Reddy's case (supra), it was a case of death of under-trial prisoner in jail and due to the failure or negligence on the part of the authorities, to perform their duties. The Division Bench of this Court ordered compensation in that regard. The Division Bench observed thus:
'Where a citizen has been deprived of his life, or liberty, otherwise than in accordance with the procedure prescribedby law, it is no answer to say that the said deprivation was brought about while the officials of the State were acting in discharge of the sovereign functions of the State. Suit for compensation against the State is, therefore, maintainable in such case. Indeed, this is the only mode in which the right to life guaranteed by Article 21 can be enforced.
Negligence of the prison officials in according the safety of the deceased by failing to take reasonable care required of them, inspite of a specific request would not be an action in accordance with the procedure prescribed by law. Rule 48 of the Madras Prisons Rules enjoins the prison officials to ensure the safety of the prisoners. Similarly, there is no law which empowers the police to apply third-degree methods, or to mete out such treatment as results in the death of the detenue in a Police Station. In all these cases it must be said that the person concerned has been deprived of his life otherwise than in accordance with-indeed, contrary to the procedure prescribed by law. The fundamental right to life guaranteed by Article 21 cannot be defeated by pleading the archaic defence of sovereign functions. The said theory of sovereign functions does not clothe the Slate with the right to violate the fundamental right to life and liberty guaranteed by Article 21. It does not constitute an exception to Article 21. Article 21 does not recognise any exception, and no such exception can be read into it by reference to clause (1) of Article 300.
The fundamental rights are sacrosanct. They have been variously described as basic inalienable, and indefeasible. The founding-fathers incorporated the exceptions in the Articles themselves -Whether they were found advisable, orappropriate. No such exception has been incorporated in Article 21, and we are not prepared to read the archaic concept of immunity of sovereign functions, incorporated in Article 300(1) cannot be read as an exception to Article 21. True it is that the Constitution must be read as an integrated whole; but, since the right guaranteed by Article 21 is too fundamental and basic to admit of any compromise, no exception can be read into Article 21 by a process of interpretation. If the founding-fathers intended to provide any exception, they would have said so specifically in Part III itself.'
The Division Bench further held that in view of the negligence on the part of the police officials in failure to provide adequate guard to protect the life of the petitioner, more so, when the deceased expressed the need of protection, the invocation of doctrine of sovereign immunity by the State was not permissible. The High Court while setting aside the judgment and decree of the lower Court which dismissed the suit allowed the appeal and awarded a compensation of Rs.1,44,000/-. The aforesaid judgment of the Division Bench has been upheld by the Supreme Court in a recent case reported in State of A.P. v. Challa Ramkrishna Reddy, : (2000)5SCC712 . The Supreme Court holding that Kasturi Lal's case (Kasturi Lal Ralia Ram Jain v. State of UP., : (1966)IILLJ583SC ) had paled into insignificance and no longer of any binding, value observed:
'This Court, through a stream of cases, has already awarded compensation to the persons who suffered personal injuries at the hands of the officers of the Government including police officers and personnel for their tortuous act. Though most of these cases were decided under public law domain, it would not make any difference as in the instant case, two vital factors namely, policenegligence as also the Sub-Inspector being in conspiracy are established as a fact'.
Moreover, these decisions, as for example, Nilabati Behera v. State of Orissa, : 1993CriLJ2899 , Death of Sawinder Singh Grower, In re, 1995 Supp. (4) SCC 450, and D.K. Basu v. Slate of W.B., : 1997CriLJ743 , would indicate that so far as fundamental rights and human rights or human dignity are concerned, the law has marched ahead like a Peagasus but the Government attitude continues to be conservative and it tries to defend its action or the tortuous action of its officers by raising the plea of immunity for sovereign acts or acts of the State, which must fail.'
15. In R. Gandhi's case (supra), it was a case where large scale arson and looting took place in the wake of assassination of the former Prime Minister Smt. Indira Gandhi. Suits were instituted by the Lawyers, law students for claiming compensation of the victims. The Court found that there was a failure on the part of the State Government to protect the property and therefore, victims are entitled for reasonable compensation. Accordingly, directions were issued to pay the compensation as assessed and recommended by the Collector.
16. In M.C. Mehia's case (supra), it was held by the Supreme Court that:
'The power of the Court is not only injunctive in ambit, that is, preventing the infringement of a fundamental right. but it is also remedial in scope and provides relief against a breach of the fundamental right already committed. If the Courts were powerless to issue any direction, order or writ in cases where a fundamental right has already been violated, Article 32 would be robbed of all its efficacy, because then the situation would be that if a fundamental right is threatened to be violated, the Court caninjunct such violation but if it the violator is quick enough to take action infringing the fundamental right, he would escape from the net of Article 32. That would, to a large extent, emasculate the fundamental right guaranteed under Article 32 and render it. Impotent and futile. It must therefore, be said that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32. The power of the Court to grant such remedial relief may include the power to award compensation in appropriate cases. Of course of the infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust of unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the civil Court. Ordinarily, of course, a petition under Article 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of civil Court. It is only in exceptional cases of the nature indicated above, that compensation may be awarded in a petition under Article 32'.
17. Thus the main thrust of the case was that the infringement of the fundamental right must be gross and patent i.e., incontrovertible and ex facie glaring and this remedial measure should be invoked in exceptional cases.
18. In Charan Lal Sahu 's case (supra), the Supreme Court upheld the validity ofBhopal Gas Disaster (Processing of Claims) Act (1985) wherein the Central Government was authorised to claim the compensation on behalf of the victims on the principle parens partriae.
19. In National Human Rights Commission's case (supra), a public interest litigation was filed by National Human Rights Commission seeking enforcement of Article 21 of the Constitution of India of 65 chakmas tribals. The chakmas were being subjected to oppressive methods by the origins of Arunachal Pradesh State and they are being forcibly evicted from the State of Arunachal Pradesh. Therefore, a writ of mandamus was sought seeking directions. The Supreme Court observed that chakmas have right to be protected and issued certain directions. Paras 20 and 21 of the said judgment are relevant, which are extracted hereunder:
'20. We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human-being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus the State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise, and it cannot permit anybody or group of persons, e.g., the AAPSU, to threaten the Chakmas to leave the State, failing which they would be forced to do so. No State Government worth the name can tolerate such threats by one group of persons to another group of persons; it is duty bound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform its Constitutional as well as statutory obligations. Those given such threats would be liable to be dealt with in accordance with law. The StateGovernment must act impartially and carry out its legal obligations to safeguard the life, health and well-being of Chakmas residing in the State without being inhibited by local politics. Besides, by refusing to forward their applications, the Chakmas are denied rights, Constitutional and statutory, to be considered for being registered as citizens of India.
21. In view of the above, we allow this petition and direct the first and second respondents, by way of a writ of mandamus, as under:
X X X X X '
20. In Waf Alalaulad v. M/s Sundardas Daulatram & Sons, AIR 1996 All. 355, it was a case where the property of citizens was forcibly occupied by the unsocial elements by creating terror, a writ was filed for restoring the possession and for issue of mandamus for maintaining the law and order. The Allahabad High Court observed as follows:
'But dispossessing a person from his property otherwise than in due course of law is different from grabbing the property by terrorising the person in possession. To capture the property forcibly by creating terror by applying brute force is not a simple case of dispossessing a person from property. In a country governed by rule of law on person can be deprived of his life, liberty and property by third degree methods, such as terrorising and manhandling the person concerned. In such a case not only the person who has been dispossessed of his property but the Society itself is taken to ransom by brute force. Such an act creates terror in the minds of the people and has the effect of shaking the social fabrics of the Society. These acts also hit and damage the authority of the Government with theresult that the public Order, peace and tranquility and of the Society are disturbed. In such cases it is the duty of the Government to come to the rescue of the persons who are threatened or have been dispossessed from their property by brazen act of lawlessness.
When a person, who has been dispossessed from his property by brazen acts of lawlessness by or with the help of anit-social elements, approaches this Court under Article 226 of the Constitution, this Court does not exercise its power to enforce the contractual and legal obligations of the parties. It only 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 the possession of the property to the person who has been dispossessed there from leaving it open to the parties to get their rights adjudicated through civil Court. To tell a person whose property has been forcibly captured and seized by or with the help of antisocial elements, to file a suit for its recovery and be on the street till the suit is decided by the last Court, is nothing but slapping a person in distress. The first two preliminary objections raised by the learned Counsel for the owner are, therefore, rejected'.
21. In Ranchi Bar Association's case (supra), there was a large scale destruction of the properties in pursuance of a call given by Jharkhand Mukti Morcha, on a representation of the District Bar Association, Ranchi, the matter was taken up by a public interest litigation and the responsibility of the Government has been indicated in Para 15 which is extracted below:
'The Government, being duty bound to protect the people, has to prevent unlawful activities like Bundh, Rally etc., which invade or threaten to invade theirlife, liberty and property, it is neither open to any person, organisation or political party to take the people to ransom, nor is it permissible for the Government to allow such unlawful activities. Such activities have to be prevented at the threshold otherwise it may not be possible to protect the people's rights. Prevention of unlawful activities ensures the protection of the rights of the people and their property. If the people who organise and support such unlawful Bundh, Rally etc., are armed, they have to be disarmed and prevented from proceeding further by the State administration and any failure on the part of the administration to do so is negligence liable to be punished.'
and the Government was directed to pay the compensation to those who have suffered the loss of life, liberty and property on account of the failure of the Government to protect them and appropriate cases against even the organisers of the Bundh, agitation, demonstration or rally can also be directed to pay the compensation. But, it has to 'be established that failure on the part of the administration of the police to provide adequate protection to the life, liberty and property of the people who were left at the mercy of the anit-social elements. The Government was found to have failed to discharge its public duty to protect the people during the Bundh. Therefore, the compensation was ordered to be paid by the Government to the victims.
22. In Neelabati Bahera v. State of Orissa, : 1993CriLJ2899 , the Supreme Court granted compensation of Rs.1,50,000/-in respect of custodial death of a person of aged about 22 person, having monthly income between Rs. 1,200/- to Rs.1,500/-, the Supreme Court observed as follows:
'A claim in public law for compensation for contravention of human rights andfundamental freedoms, the protection of which is guaranteed in the Constitution is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.
The Supreme Court is not helpless and the wide powers given to it by Article 32, which itself is a fundamental right, imposes a constitutional obligation on it to forge new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available. The power available to the Court under Article 142 is also an enabling provision in this behalf. The contrary view would not merely render the Court powerless and the constitutional guarantee a mirage, but may, in certain situation, be an incentive to extinguishlife, if for the extreme contravention the Court is powerless to grant any relief against the State, except by punishment of the wrong doer for the resulting offence, and recovery of damages under private law, by the ordinary process. If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have-nots, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, were more appropriate.'
23. In D.K. Basu v. State of West Bengal, : 1997CriLJ743 , it was held by the Supreme Court that the High Court under Article 226 of the Constitution of India has a power to award the compensation for the wrong done due to the public breach by the State of not protecting the Rights and Lives of the people. Paras 40, 41 and 44 of the said judgment are relevant, which are extracted below:
'40. The requirements mentioned above shall be forwarded to the Director-General of Police and the Home Secretary of every State/Union Territory and it shall be their obligation to circulate the same to every police station under their charge and get the same notified at every police station at a conspicuous place. It would also be useful and serve larger interest to broadcast the requirements on the All India Radio besides being shown on the National Network of Doordarshan and by publishing and distributingpamphlets in the local language containing these requirements for information of the general public. Creating awareness about the rights of the arrestee would in our opinion be a step in the right direction to combat the evil of custodial crime and bring in transparency and accountability. It is hoped that these requirements, would help to curb, if not totally eliminate, the use of questionable methods during interrogation and investigation leading to custodial commission of crimes.
41. Ubijus Ibi Remedium- There is no wrong without a remedy. The law wills that in every case where a man is wronged and endamaged he must have a remedy. A mere declaration of invalidity of an action or finding of custodial violence or death in lock-up, does not by itself provide any meaningful remedy to a person whose fundamental right to life has been infringed. Much more needs to be done.
44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortuous acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or 226 of the Constitution of India for theestablished violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrong doer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizens'.
24. On the question of compensation, the Supreme Court after referring to the decision in Neela Behera @ Lalita Behera v. State of Orissa, : 1993CriLJ2899 (supra) and other foreign decisions, observed as follows:
'Thus, to sum up, it is now a well accepted proposition in most of the jurisdiction, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and 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 is prosecuted, which the State, in law, is duly bound to do. The award of compensation in the public 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 with respect to the same matter for the tortuous act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction 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 the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit'.
25. In Jayalaxmi Salt Works(P) Ltd. 's case (supra), the Supreme Court elaborately dealt with the tortuous liability of the State arising out of the violation of the public duties. The Supreme Court observed thus:
'In between strict liability and fault liability there may be numerous circumstances in which one may be entitled to sue for damages. And it may be partly one or the other or may be both. In a welfare society construction of dam or bundh for the sake of community is an essential function and use of land or accumulation of water for the benefit of society cannot be non-natural user. But, that cannot absolve the State from its duty of being responsible to its citizens for such violations as are actionable and result in damage, loss or injury. What is fundamental is injury and not the manner in which it has been caused. 'Strict liability', 'absolute liability', 'fault liability', and 'neighbour proximity' are all refinements and development of law by English Courtsfor the benefit of society and the common man. Once the occasion for loss or damage is failure of duty, general or specific, the cause of action under tort arises. It may be due to negligence, nuisance, trespass, inevitable mistake etc. It may be even otherwise. In a developed or developing society the concept of duty keeps on changing. They may individually or even collectively give rise to tortuous liability. Entire law of torts is founded and structured on morality that no one has a right to injure or harm others intentionally or even innocently. Therefore, it would be primitive to class strictly or close finally the ever-expanding and growing horizon of tortuous liability. Even for social development, orderly growth of the society and cultural refineness, the liberal approach to tortuous liability by Courts is more conducive. Since the appellant suffered loss on facts found due to action of respondent's officers both at the stage of construction of the bundh and failure to take steps even at the last moment it was liable to be compensated.
But to be actionable and get redress from Court it must assume legal shaper by falling in one or the other statutorily, judicially or even otherwise recognised category of wrong such as negligence. 'Negligence' ordinarily means failure to do statutory duty or otherwise giving rise to damage. The axis around which the law of negligence revolves is duty, duty to take care, duty to take reasonable care. But the concept of duty, its reasonableness, the standard of care required cannot be put in a strait-jacket. It cannot be rigidly fixed. Even improper exercise of power by the authorities giving rise to damage has been judicially developed and distinction has been drawn between power coupled with duty. Where there is dutythe exercise may not be proper if what is done was not authorised or not done in the bona fide interest of the public. Thus negligence is only descriptive of those sum total of activities which may result in injury or damage to the other side for failure of duty both legal or due to lack of foresight and may comprise of more than one concepts known or recognised in law, intended unintended.'
26. In Chandrimadas's case (supra), the victim belonging to Bangladesh, who was raped by the employees of railways. On a public interest litigation having been initiated by a practising advocate, the Calcutta High Court apart from other relies awarded a sum of Rs.10 lakhs compensation to the victim. On appeal at the instance of Railway Board, the Supreme Court dismissed the same. An argument was raised that the victim was a foreign national, she cannot claim any compensation in India on the ground that her fundamental right has been violated. The Supreme Court rejected the said contention. Referring to the Universal Declaration on Human Rights and the Constitutional Guarantees, it observed thus:
'Our Constitution guarantees all the basic and fundamental human rights set out in the Universal Declaration of Human Rights, 1948, to its citizens and other persons. The chapter dealing with the fundamental rights is contained in Part-Ill of the Constitution. The purpose of Part-Ill is to safeguard the basic human rights from the vicissitudes of political controversy and to place them beyond the reach of the political parties who, by virtue of their majority, may come to form the Government at the Centre or in the State.
The fundamental rights are available to all the ' citizens' of the country, but a few of them are also available to'persons'. The word 'LIFE' has also been used prominently in the Universal Declaration of Human Rights, 1948. The fundamental rights under the Constitution are almost in consonance with the rights contained in the Universal Declaration of Human Rights as also the Declaration and the Covenants of Civil and Political Rights and the Convenants of Economic, Social and Cultural Rights, to which India is a party having ratified them. That being so, since 'LIFE' is also recognised as a basic human right in the Universal Declaration of Human Rights, 1948, it has to have the same meaning and interpretation as has been placed on that word by the Supreme Court in its various decisions relating to Article 21 of the Constitution. The meaning of the word 'life' cannot be narrowed down. According to the tenor of the language used in Article 21, it will be available not only to every citizen of this country but also to a 'person' who may not be a citizen of the country. On this principle, even those who are not citizens of this country and come here merely as tourists or in any other capacity will be entitled to the protection of their lives in accordance with the constitutional provisions. They also have a right to 'life' in this country. Thus, they also have the right to live, so long as they are here, with human dignity. Just as the State is under an obligation to protect the life of every citizen in this country, so also the State is under an obligation to protect the life of the persons who are not citizens'.
27. Thus the Supreme Court held that even though she is not a citizen of India, she is entitled for the relief right to the citizens so far as 'right to Life' was concerned and therefore, she was entitled to be treated as dignity with decorum expected on a human being and she could not be subjected to treatment, which was below dignity norcould she be subjected to physical violation by the Government employees, who outraged her modesty. Thus, the judgment of the Calcutta High Court awarding compensation to the victim, who was subjected to gang rape was affirmed. One of the contentions raised was that the acts done by the employees in their personal capacity cannot bind the Government and that the activities of the Railways cannot be related to sovereign activity of its commercial activity and therefore, employees of the Union of India who are deputed to run the railway and run the management including the railway station and Yatri Nivas were not essential parts of the Government machinery. Rejecting this contention, the Supreme Court held that they are essential components of the Government which carries on the commercial activities. If any of such employees commits an act of tort, the Union Government, of which they are the employees, can, subject to other legal requirements being satisfied, be held vicariously liable in damages to the person wronged by those employees.
28. The learned Additional Advocate-General, however, conceding that the awarding of the compensation is permissible for violation of the fundamental rights, more so, for violation of the Article 21. But, however, he submits that there must be established positive inaction on the part of the Government resulting direct violation right to Life. In this case, there is no evidence to show that the State has not taken any positive steps and therefore, it is not a case for seeking compensatory justice under Article 226 of the Constitution of India.
In Mis. Sri Lakshmi Agencies v. Government of Andhra Pradesh, : 1994(1)ALT341 , which was relied on by the learned Additional Advocate-General, the issue that was considered by the learned single Judge was 'is the Public remedy lawavailable to the terrorist acts of the private individuals and whether the State is liable to pay compensation for such tortuous acts of the private individuals'. Mr. Vangaveeti Mohanaranga Rao, Former Sitting Member of A.P. Legislative Assembly was murdered by the opposite faction in the early hours of 26-12-1988. When the news of the said murder spread, there was sudden eruption of violence and immediately curfew was imposed in the concerned areas restricting the possible outbreak of arson and in some parts lootings took place and the public property was damaged. Government granted various benefits including grant of ex-gratia. But, however, a petition was filed under Article 226 of the Constitution of India for claiming compensation. The writ was filed on the principle ground that the State Government and its officers or the Central Government that on account of large scale lootings, the petitioner suffered heavy damages on account of the negligence of the State and its officers. Thus, their fundamental rights under Articles 14, 19(e) and (g) and 21 were violated. The learned Judge held that no distinction can be drawn between the act of servant of the Government in discharge of the statutory functions or otherwise if the servant of the Government has committed any act infringing the fundamental rights of the citizens, the State is not immune from the liability. The learned Judge considered the matter on merits of the case as to find out whether there was any negligence or lethargy on the part of the State or its officers. He observed as follows:
'It is not the case that indulgence of violence by miscreants was at the instance of the respondents. It is also not the case that the respondents were just watching the violence as silent spectators, either. To say that, because the deceased MLA was fasting unto death for police protection, the respondents should have visualised that there wouldbe murderous acts leading to large-scale arson and looting and that preventive measures ought to have been taken and had the said measures taken, the violence would not have erupted, is purely hypothetical. No negligence can be attributed on that hypothetical basis and no liability can be fastened on the State on that count. Undoubtedly, in a Welfare State, the tackling of law and order problem by the State is a primary duty. It is only when the said duty is not performed, the State will be liable. If no action was taken by the concerned officials in tackling the law and Order problem after eruption of violence by private individuals, then the State is liable to pay compensation for their wilful inaction, but the State cannot be made liable in not anticipating the eruption of violence. It is too far-fetched an argument that the State and its officers ought to have assumed that the MLA would be slain and that violence would erupt and that the petitioners and the like would sustain losses/damages, and for that reason, to totally curtail the movements of all the persons in that area, and post police force at each and every house, be it residential or commercial of the individuals in that entire area. The right under Article 21 of the India Constitution cannot be stretched that far. Article 21 comes into play only against the positive State action violating the fundamental right to life or liberty and then stretching any far, it can only be upto mulcting the State for the wilful negligence of the servants of the State in discharge of their functions. Such a thing is totally absence in the instant cases.
The learned judgment further observed thus:
'It is only when the officers of the State does any act positively or failed to act as contemplated under law leading to culpable inaction, that the State isliable to pay the damages. There should be a direct nexus for the damage suffered on account of State action and ifthat is absent, Article 21 of Indian Constitution is totally inapplicable. In the instant case, too, the servants of the State has no role in the violence indulged by the private miscreants and as such the State is not liable to pay damages to the petitioners. Soon after the news of assassination spread, the District authorities swung into action and swiftly took measures to maintain law and order and clamped curfew and had taken all steps to control the situation and brought the same under control after some time, but meanwhile, the miscreants have played hide and seek and in large numbers have caused damage to the properties of the some individuals including the petitioners. As such there is no culpable action on the part of the State or its servants and no cause arose against the respondents to complain that there is violation of their fundamental rights. Consequently public law remedy under Article 226 of Constitution is not available to the petitioners. Their remedy lies in invoking the private law remedy in common law Court against the miscreants.'
Thus, the learned Judge in principle accepted that the theory of compensatory justice can be undertaken by the Supreme Court or the High Court. But, yet, in each and every case action or inaction on the part of the State or its officers, it must be conclusively established that there is a positive action on the part of the officer or State or officers in discharging their sovereign duties. Then only victims are eligible for compensation.
29. 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 thefundamental 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 Article 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 byinvoking 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 straight jacket formula for awarding the compensation under Article 226 of the Constitution of India.
30. In view of the aforesaid principles it is too late in the day to contend that the claim for damages invoking Constitutional remedy for violation of fundamental rights is barred. But, however, it has its own limitations. In the present case we have to see whether the State has played any positive role or negative role in protecting the property in question.
31. It is the case of the petitioner that immediately on coming to know the assassination of former Prime Minister Mr. Rajiv Gandhi, he informed the Abids Police Station apprehending danger to the property of NTR Estate more especially the NTR Estate was owned by an opposite political group Telugu Desam Party and the Government in power was Congress Government. The 1st enquiry conducted by Mr. Shiva Shanker, who was the Additional Commissioner of Police, found fault with the police.
32. The Government constituted a one man commission in G.O. Ms .No.511, dated 28-11-1991 wherein the Commission was required to
(a) to find out the circumstances leading to violence and damage to private/ public properties in different parts of the State after the assassination of Sri Rajiv Gandhi on 21-5-1991;
(b) to identify persons/groups/ organisations, if any, responsible for the incidents;
(c) to assess precautionary measures taken by the law enforcing authorities to prevent the violence and damage to properties;
(d) to evaluate the effectiveness and promptitude of the action taken by the law enforcing authorities to deal with the situation; and
(e) lapses, if any on the part of any person/persons or authority in dealing with the situation.
Number of witnesses were examined and various parts of the State were examined. The Commission recorded its findings in Para 11 holding that there was a complete failure of the Government machinery and the property of the opposite parties have been targeted. The findings are extracted below:
'11. (1) Workers of the Congress Party and antisocial elements were responsible for the several incidents, although no leader of the Congress party as such has organised or instigated the various acts of violence. The incidents occurred almost immediately after the news of assassination of Sri Rajiv Gandhi reached Hyderabad and there was no time or opportunity for any one to organise or instigate these incidents. The names of some leaders of the Congress like Sri Sudhir Kumar and Sri Mtikesh were mentioned by some witnesses. But there was no direct evidence before the Commission of any one having witnessed persons taking part in theseincidents. The names of these two persons were mentioned no doubt in the report of Sri Shiva Shanker, Additional DCP but there again his report is based upon the information given to him during his inquiry. I therefore, do not find any justification to issue notices to these two persons to appear before the Commission and submits themselves to examination by the Commission. But, I cannot accept the evidence of the Commissioner of Police that no case was registered against them merely because the report against them was belated and therefore, politically motivated. A case ought to have been registered against them and investigated. The allegations regarding the involvement of the Chief Minister or any other member of the Government have not been substantiated and as such no finding can be given by the Commission with regard to the allegations.
(2) It is however clear that the victims of these incidents all belonged to the opposition parties like the BJP and the TDP. The assassination of Sri Rajiv Gandhi took place in Tamil Nadu and even in the initial stages there was no suspicion of involvement of BJP or the Telugu Desam Party in the assassination. The members of these two parties were made the target of attack by workers and supporters of the Congress Party. Even later the investigation into the assassination of Sri Rajiv Gandhi did not disclose any involvement of these parties. It is obvious that the attack on the persons and property of these two opposition parties have been politically motivated.
(3) Although the Commissioner of Police and also several Police Officers who have given evidence before the Commission asserted that all steps were taken by the police to maintain law and order in the twin cities followingthe receipt of information of the assassination, the fact remains that several incidents of violence, holing, arson and destruction of property occurred and the police failed to prevent these incidents and give protection to the properties of the citizens. It is also important that according to the evidence before the Commission the police had been given prior information about the attack on the properties and police protection had also been requested in advance. Sufficient Police force was available which could have effectively prevented the several incidents and maintained law and order.
12. Special mention has to be made about the remarks of Sri Shiva Shanker, Additional Commissioner of Police in respect of the incidents in the NTR Estate. It does not appear that this report has been seriously considered by the Commissioner of Police or by the Government. It does not appear that any action has been taken against any of the police Officers as recommended by Sri Shiva Shanker. Although it is true that all these incidents were spontaneous effective action could have been taken by the police to maintain law and order in the capital of the State. It must be held that the police were guilty of dereliction of duty. The attitude of the Commissioner of Police is certainly open to criticism '.
33. In this regard, it is to be noted that the report of Mr. Shiva Shanker was made part of the record of one man commission. The Commission referred to the said report at para 6, which reads:
'According to Sri Shiva Shanker's report he had gathered all the relevant facts from the police officers deputed for bandobast duty at the NTR Estate and also from civilians connected with theseestablishments. According to him, three police platoons which were available at the Police control room were sent for deployment at NTR Estate, NTR's house and Tarakarama Theatre. The three platoons reached Abids Police Station by about mid-night. Further, the ACP Sultanbazar Sri A. Venkateswara Rao had directed the Abids Police Station to depute 1+4 armed forces to move to NTR Estate. The report went on to mention that the ACP Sultanbazar Sri A. Venkateswara Rao who reached NTR Estate saw a mob of about 150 persons gathered in front of NTR Estate. The Inspector of Abids Police Station also had reached the NTR Estate by the then. The ACP Sultanbazar and Inspector of Abids Police Station were persuading the mob not to indulge in violence and advising them to disperse. As the arguments were going on Sri Ramesh, Sub-Inspector and Second APSP Platoon also reached the NTR Estate. The crowed threatened the SI, the RS1 and the policemen to get back into the vans and move away from the place. RSI Krishna Reddy and SI Ramesh took the platoon a little away from the main gate towards Abids. By them the mob managed to break the gates open and enter into the Estate and set fire to Ramakrishna 70 MM. and 35 M.M. and also cause damage to Hotel Ahwanam besides setting fire to a Maruthi van and 3 two wheelers parked in front of Hotel Ahwanam. By that time flames were coming out from Ramakrishna 70 M.M.
From the inquiry made by him Sri Shiva Shanker came to the conclusion that the Inspector of Abids police station Sri Subhash Chatruvedhi, SI Sri Ramesh and RSI Sri Krishna Reddy had miserably failed in taking effective action to prevent the mob from causing damage to the NTR Estate. With the available forces they could haveresorted to the use offeree to scare the mob and disperse them. This inaction by the above officers brought the image of the city police officers to a low level. Even though they were overawed by the circumstances they should have opened fire at the group or atleast fired in the air to scare the mob and to prevent the damage. They even failed to arrest those who were fleeing after causing damage to the properties. Sri Shiva Shanker has recommended that stringent disciplinary action may be taken against the above officers and that they may be placed under suspension pending regular inquiry. Sri Shiva Shanker has further observed that the Inspector of Sultanbazar and SIs Babu Rao and Gurappa with men had reached Tarakarama theatre and were standing in front of the Theatre. Surprisingly these officers did not take any action to prevent the mob from entering and damaging the Theatre. Sri Shiva Shanker has recommended that the above two officers be placed under suspension pending regular inquiry'.
34. The Government also placed the Memorandum of action taken on the report of the one man commission and the findings of the Commissioner with regard to the terms of the reference have been accepted. Therefore, in the wake of the above findings of Sri Shiva Shanker also the one man Commission it has to be considered that there was a positive action on the part of the police in averting the damage to the properties or whether there was any positive inaction?
35. As can be seen from the report of Sri Shiva Shanker and also from the findings of one man commission, which were accepted by the Government that three police platoons from the Police Control Room were sent for deployment of NTR Estate, NTR's house and Tarakarama Theatre. The three platoons reached Abids Police Station at about mid night. ACP Sultanbazar haddirected the Abids Police Station to depute 1+4 armed forces to move to NTR Estate and when the police officers reached NTR Estate they saw mob of 150 persons in front of the Estate. Inspector of Abids Police Station also reached the spot, ACP and the Inspector of Abids were persuading the mob not to indulge and advising them to disperse. At that point of time, Mr. Ramesh, Sub-Inspector and second APSP Platoon reached NTR Estate. The crowed threatened the SI and the RSI and the policemen to get back into the van and move away from the place. RSI Krishna Reddy and SI Ramesh took the platoon a little away from the main gate towards Abids. Realising that the police was withdrawing the mob managed to break the gates open and enter into the Estate. The above sequence of events speak for themselves. The police reached the spot much prior to the incident. The ACP, Circle Inspector and SI and APSP Platoons were on the spot. But, however, for the reasons best known to the police authorities, they did not take any preventive measures, but they coolly moved away from the place. The police arrive on the spot only to avert the apprehended danger and maintain law and order situation. It is the duty of the police when they apprehend danger to the property and more especially after having come to know about 150 persons were waiting in front of the gate of NTR Estate with a sole intention of causing damage, destruction of property, it is unfortunate that they did not take any positive steps in this regard to prevent untoward incident. It cannot be said that they have moved away from the place on the ground that there is no danger. It is their categorical statement that they requested the mob not to create disturbance or destruction, but the police did not take any steps to disperse the mob or used any tear gas shells or cane charge or resorted to fire in the air, or like acts to scare away the mob. No such preventive steps at all have been taken in this incident.
It is also not disputed that the police did not use any preventive methods. The movement the police had withdrawn from the main gate, obviously one can easily enter into the premises and damage the property. This itself shows that the police have been instrumental in allowing the mob to gain entry into the premises. Even it is not the case of police that after the mob had entered the estare, they resorted to lathi charge, or conducted any anit-mob operations. It cannot be said that the attack was spontaneous and could not be foreseen. The police force arrived on the spot well in advance and the mob was asked not to indulge in unlawful activities. Therefore, it cannot be said that the situation was out of control. The Commission categorically found fault with the police and recorded finding that police were guilty of dereliction of duty. Thus, it can be conclusively said that there was positive inaction on the part of the police in preventing the mob from gaining access the estate. They in fact allowed the mob to enter into the premises and knowing fully well the disastrous results. Even the security measures taken by the police at post event stages are silent. Thus, the enquiry report of Sri Shiva Shanker and the events which are narrated above would conclusively show that no preventive action whatsoever was pressed into service, muchless, no post event precautions were also taken. Nobody was arrested immediately after the incident. The recommendations of Mr. Shiva Shanker and the findings of one man commission are very categoric that the police people are mere spectator to the incident and they are responsible for not arresting the damage. The Commission only recommended the disciplinary action against the erring police officers. Thus, it is conclusively established in the instant case that there is any amount of inaction on the part of the police in protecting the person and property of the citizens. In the instant case, as already observed that the property belonging to apolitical rivalry which is made target by the workers of the party in power. Therefore, I hold that the State failed to discharge its sovereign functions in protecting the property or the petitioner and the essential functionaries viz., police exhibited complete inaction and slackness in dealing with the situation. Thus, I hold that the State has grossly violated the fundamental rights of the petitioner under Articles 19 and 21 of the Constitution of India and consequently it became liable for compensation.
36. The next question that falls for consideration is the quantum ofcompensation?
37. The learned Additional Advocate-General strenuously contend that this is not a Forum at which it should be claimed. It is only in exceptional cases, the deprived citizens should be allowed to knock the doors under Article 226 of the Constitution of India, it cannot be a general substituted for remedy under common law. The compensation claimed is highly excessive and the compensation cannot be claimed on the basis of certificate issued by the Collector. The Collector has issued the certificate on a request made by the party to enable him to claim the damages under the Insurance Policy and also the concessions granted under G.O. Ms. No.1509.
38. The learned Additional Advocate-General further submits that the Government have also extended various benefits to the victims of these incidents. The Government has issued G.O. Ms. No.1509, dated 1-10-1991 granting the following benefits:
(a) The concessions made available to business establishments will apply to cinema Theatres also.
(b) The ceiling on 20% interest free margin money loan will be Rs.20 lakhs in the case of Theatres.
The following further orders are issued in detail for implementing the above relief and rehabilitation measures:
(i) Sales Tax/Entertainment Tax be waived for the period during which the establishments/Theatres remained closed due to damage;
(ii) The arrears of taxes due under the various Acts administered by the Commercial Tax Department from the affected victims who lost property, business, etc., shall be deferred till 31-12-1991;
(iii) Entertainment tax shall not be levied till the Cinemas re-start;
(iv) The Commercial Tax Department shall take judicial notice of closure of business by Commercial establishment and Theatres which have been destroyed and damaged in violent incidents;
(v) The Commissioner of Commercial Taxes shall issue necessary instructions to the subordinate offices in this regard;
(vi) The District Collector will scrutinise the claims of the affected parties in respect of Business Establishment and Theatres and arrived at the net amount of damage by deducting the insurance compensation payable from the actual loss sustained and issue a certificate to the party in duplicate in the proforma in Annexure-I to this Order;
(vii) Based on the certificate issued by the Collector the Commercial Tax Officer in whose jurisdiction the Commercial establishment or the Theatre is situated shall issue Orders sanctioning the interest free margin money Rs.1.00 lakhs per unit in the case of Business Establishment, and Rs.20.00 lakhs in case of Theatres;
(viii) After making payment, the fact may be intimated to the Commissioner of Commercial Taxes and the Government in General Administration (Gen.B) Department and also the Managing Director, Andhra Pradesh State Film Development Corporation in the case of Theatres.
4. Sanction is hereby accorded for incurring an expenditure not exceeding Rs.3.00 crores (Rupees three crores) towards sanction of interest free loan the Business Establishment/Theatres who have sustained damages during the disturbances.
5. For repayment of interest free loan there shall be one year moratorium and the amount shall be recovered in the next three years in 12 quarterly installments i.e., first installment shall be immediately after the expiry of one year from the date of payment of the loan amount'.
In respect of the petitioner, the Government also granted interest free loan of Rs.20 lakhs and also exempted from payment of entertainment tax for the period for which the Theatre was not running amount to Rs.16 lakhs. Further G.O. Ms. No.497, dated 12-8-1991 was issued and the following benefits were granted:
'Larger Business Establishments like Rice-Mills/Hospitals/Petrol Bunks etc:
No Ex-gratia relief will be paid to such establishments. However, such establishments will be granted the following facilities:
(a) Waiver of sales tax/excise duty for the period during which the establishment remained closed due to damages;
(b) Deferment of collection of arrears of tax due from the establishments till 31-12-1991;
(c) Loans shall be arranged by the Collectors from Financial Institutions at concessional rates if necessary by extending interest subsidy up to 50% which shall be borne by Government;
(d) Interest-free margin money equal to 20% of the loan amount;
(e) The total amount of margin money shall not in any case exceed Rs.1.00 Lakh permission unit;
(f) The margin money will be recovered in 5 equal annual installments with one year moratorium;
(g) The loan and margin money requirements will be assessed after deducting the insurance compensation received/receivable by the affected unit;
(h) Steps will be taken to get the insurance claims of the affected establishments expedited by the Collectors concerned;
(i) The claim of the victims shall be screened by the Collectors and District Magistrates who shall verify the insurance claims received/receivable and determine the loan amount;
(j) The Commercial Tax Department shall take judicial notice of closure of business establishments, which have been destroyed or damaged in the riots.
(a) The concessions made available to business establishments will apply to cinema theatres also.
(b) The ceiling on 20% interest free margin money loan will be Rs.20 Lakhs in the case of theatres.
The learned Additional Advocate-General further submits that the certificate issued bythe Collector cannot be made basis for assessing the damages, it is only with a view to enable the petitioner to claim the insurance amount from the insurance, such a certificate was issued and therefore, it cannot be treated as actual damage suffered by the petitioner. Moreover, the damage as claimed is highly excessive and exorbitant.
39. There is no dispute that this Courtis entitled to award the compensation in the appropriate cases when a fundamental right under Article 19 or 21 of Constitution of India are violated. It is not also disputed in this case, that the Government have given certain concessions. The learned Counsel for the petitioner has also not been able to place before this Court as to the details of claim if any allowed by the Insurance Company. In this regard, he submits that the matter is still pending and no final settlement has taken so far. The learned Counsel for the petitioner further submits that the damage was assessed by a recognised Surveyor and it was certified by the Collector assessed at Rs.1,57,50,000/-and the actual net is Rs.1,51,50,000/-.
40. 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 deductable from the compensation that is claimed under the common law remedy. Thus, thecompensation awarded must be fair and reasonable and compensurate with the damages and set backs faced by the victim. It is also to be remembered that 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 claim 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 ofthe positive inaction on the part of 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.
41. Under these circumstances, keeping in view the loss suffered by the petitioner, and also certain benefits extended by the Government to the petitioner, I feel it appropriate to award compensation of Rs.1 (one) crore for the damages suffered by the petitioner.
42. It is made clear that the petitioner shall refund the claim amount to the Government as and when received from the insurance.
43. The amount shall be paid to the petitioner within a period of 3 months from the date of receipt of a copy of the order, failing which it shall carry interest @ 18 per cent from 7-10-1993, the date on which the writ petition was admitted till the date of payment.
44. The writ petition is accordingly allowed.
45. No costs.