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inder Puri General Store and ors. Vs. Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtJammu and Kashmir High Court
Decided On
Case NumberWrit Petition No. 5 of 1990
Judge
Reported in1991ACJ1081,AIR1992J& K11
ActsConstitution of India - Articles 21, 38 and 226
Appellantinder Puri General Store and ors.
RespondentUnion of India (Uoi) and anr.
Appellant Advocate R.P. Bakhshi, Adv.
Respondent Advocate P. Kohli, Adv. General and; D.P. Gupta, Adv.
DispositionPetition allowed
Cases ReferredR. Gandhi v. Union of India
Excerpt:
- .....record.5. article 21 of the federal constitution provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. this article embodies the general principle that no person shall be deprived of his life or personal liberty and guarantees the most essential of all the rights as enshrined in part iii of the constitution. this article puts a limitation on the powers of the executive. the term 'life' used in the article is not only restricted to the more nominal existence but extends to the inhibition against its deprivation to all those limits arid faculties by which life is enjoyed, it also includes the right to livelihood. the ambit and scope of 'right to life' conferred by this article is wide and far-reaching which does not.....
Judgment:
ORDER

R.P. Sethi, J.

1. In the unfortunate communal riots which took place in holy city of Jammu on 13th January, 1989, the petitioners, all belonging to Sikh Community, suffered losses detailed in the petition. They have prayed for the issuance of a direction to the respondents to pay them the compensation to the extent of losses actually suffered by them as shown in Annexures PI to P7 of the petition.

2. It is submitted that the property of the petitioners was destroyed in the riots and the respondent-authorities failed to provide them protection as is the mandate of law adopted and followed in this democratic, socialist, secular State. The District Magistrate is alleged to have conducted a summary inquiry to assess the losses and damages which are shown in the statement attached with the petition.

3. In the counter-affidavit filed on behalf of the respondents it is submitted that as the petitioner-firms are not registered under the Partnership Act, they have no right to file the present petitions, under Section 69 of the Partnership Act. It is submitted that the petitioners have raised disputed questions of fact which could not be gone into or determined by this Court in exercise of the writ jurisdiction. It is alleged that the petitioners have no fundamental, legal or statutory right in seeking compensation from the respondents. It is, however, admitted that the communal riots broke out in the city of Jammu due to the alleged active connivance of anti-national and anti-social elements resulting in injuries and deaths of members of the Hindu and Sikh. Communities. It is also admitted that the petitioners suffered losses to their properties in those riots. The communal riots are alleged to have been engineered by some anti-national forces and members of some communities. The respondent-State initiated all measures to curb and prevent anti-national and anti-social activities. The State Govt. issued Govt. Order No. Rev-ER-21/89 dated 23-1-1989 sanctioning the grant of ex gratia relief in favour of the persons who lost their lives or sustained injuries or suffered losses of their properties. A Committee was constituted comprising of S/ Shri Harbans Lal, Tehsil-dar and Qamar-ud-Din, Addl. Tehsildar, for assessing the losses suffered during the riots. The said committee was to work under the supervision of the Asstt. Commissioner (R) Jammu. The committee assessed the losses caused to various firms and business enterprises in the city including the petitioners the details of which have been shown in Annexures R-3 to R-5. According to the Government decision the persons who had suffered loss of property were granted ex gratia relief up to a maximum of Rs. 25,000/ - which has already been paid to the petitioners. The provisions of Articles 14, 19 and 21 of the Constitution have not been violated as claimed by the petitioners. The writ petition is alleged to be misconceived and liable to be dismissed.

4. I have heard learned counsel for the parties and perused the record.

5. Article 21 of the federal Constitution provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. This article embodies the general principle that no person shall be deprived of his life or personal liberty and guarantees the most essential of all the rights as enshrined in Part III of the Constitution. This Article puts a limitation on the powers of the executive. The term 'life' used in the Article is not only restricted to the more nominal existence but extends to the inhibition against its deprivation to all those limits arid faculties by which life is enjoyed, it also includes the right to livelihood. The ambit and scope of 'right to life' conferred by this Article is wide and far-reaching which does not mean merely that life cannot be extinguished or taken away but embraces within its ambit the right to livelihood because no person can live without the means of living. If the right to livelihood is not treated as a part of the constitutional right to life, 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. Chief Justice Chandrachud (as His Lordship then was) of the Supreme Court in Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, held at page 194:

'...... .Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. Deprive of a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live. Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas J. in Baksey, (1954) 347 MD 442 that the right to work is the most previous liberty that man possesses. It is the most precious liberty because, sustains and enables a man to live and the right to life is a precious freedom. 'Life', as observed by Field, J. in Munn v. Illinois, (1874) 94 US 113, means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U. P., (1964) SCR 332 : ((1963 (2) Cri LJ 329): AIR 1963 SC 1295.'

His Lordship further held at page 194:

'...... If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adquate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Art. 21.'

In M. C. Mehta v. Union of India, 1987 (1) SCC 395 : (AIR 1987 SC 1086) it was held, 'The application for compensation had been made in this case for enforcement of rights under Article 21 of the persons effected by oleum gas leak. Merely because the petitioner could not apply for amendment of the writ petition so as to include the claim for compensation the application for compensation cannot be thrown out. The Court while making an application for enforcement of a fundamental right must look at the substance and not form.' In Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 : (AIR 1984 SC 802) the Supreme Court issued appropriate directions for the release of bonded labour and in Bhim Singh v. State of J. and K., (1985) 4 SCC 677 : (AIR 1986 SC 494) directed the payment of compensation for wrongful detention of the petitioner. In the Bhopal Gas leak case of an industrial unit owned by Union Carbide, the Supreme Court has already awarded compensation to the effect and is still seized of the matter for awarding adequate compensation to the gas victims. 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 mo-narchial, 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.

6. 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. In similar cases where loss was caused to the property of the Sikh community in Coimbatore in the incidents which followed the assassination of the Prime Minister of the country, the Madras High Court in R. Gandhi v. Union of India, AIR 1989 Madras 205, held at page 214.'

'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 citizens 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 180, 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 300(A) 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 on 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 Bhag-wati, 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.'

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 disputed. The petitioners are, therefore, entitled to the grant of relief as prayed for by them.

7. No other point was argued.

8. Accordingly this petition is allowed with a direction to respondent No. 2 to pay to the petitioners the compensation to the extent of loss suffered by them as assessed by the committee and detailed in Annexures R3 to R 5 filed with the counter-affidavit. The petitioners are also held entitled to the payment of costs which are assessed at Rs. 500/-.


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