IN THE HIGH COURT OF DELHI
WRIT
PETITION (CIVIL) NO.2338/2001
Date of decision:
May, 2005
MANJIT
SINGH SAWHNEY ... Petitioner
VERSUS
UNION
OF INDIA & ORS.
... Respondents
CORAM:
HON'BLE MS.
JUSTICE GITA MITTAL.
1.
Whether reporters of local
papers may be allowed to see the Judgment?
2.
To be referred to the Reporter or not?
3.
Whether the judgment should be reported in the Digest?
GITA MITTAL, J.
1. By way of the
present petition, the petitioner is seeking payment of Rs.1,18,275.00 with
interest on account of compensation for the injuries and loss suffered by him in
the 1984 riots.
The 31st of October, 1984 saw the unfurling of a saga
of terror let lose by barbaric mobs indulging in a spate and orgy of
violence directed against a specific community after the killing of late Prime
Minister Smt. Indira Gandhi. The
agony of the people effected would have known no bounds in as much as there are
allegations and instances to the effect that the protectors of life, society and
property completely failed in discharge of their duty to protect and, if did not
actually perpetrate the crimes, acted in their promotion and tacit support to
the unruly mobs.
Noticing the turmoil, tragedy and loss suffered by mankind, Anil Dev
Singh, J in his judgment reported at 1996 III AD Delhi 333 entitled Bhajan Kaur
Vs. Delhi Administration, commented thus:-
“5.
The case demonstrates how
innocent lives were snuffed out by barbaric mobs indulging in an orgy of
violence after the brutal killing of Smt. Indira Gandhi.
It is not difficult to visualise the terror, pain and the suffering which
must have struck the affected people not at the hands of beasts but fellow
beings belonging to the same mother
land to which the dead belonged. Bemoaning
the loss of the near ones, how they would have preferred beast to human beings
for company and must have yearned for a place free of marauding crowds-yearned
for a place where fear would not enter-yearned for a situation described in the
following words of Gurudev Rabindra Nath Tagore:-
“I f I were the soil, if I were the water,
If I were the grass or fruit or flower,
If I were to roam about the earth with beasts and birds,
there would be nothing to fear,
In never-ending ties wherever I go,
it will be the limitless me.”
2.
One does not have to go far back in the memory lane and most of us can
recollect the horror and agony suffered by every right thinking citizen of this
country as to what was being experienced. The
agony of those who actually underwent the experience and dejection at the
failure of the state machinery to ensure the life and liberty constitutionally
granted to them, cannot be expressed in words.
Till date, cases relating to prosecution of persons accused of
involvement in the riots which occurred are pending in courts.
There has been little success at bringing the guilty to book and this has
only compounded the hopelessness in the minds of victims.
4.
Article 21 of the Constitution of India guarantees as a fundamental right
to every citizen of this country personal liberty which is fundamental to the
functioning of our democracy. The
very Preamble ensures liberty, equality and fraternity
to the citizens of India, promise of which the nation is reminded each
time communal violence and riots erupt. Undoubtedly,
the state is obligated to ensure that the rights of individuals or group of
persons under Article 21 of the Constitution of India are not and cannot be
violated.
5.
As noticed in the afore-stated judgment, it is the bounden duty and
responsibility of the state to secure and safeguard life and liberty of an
individual from mob or violence. That
these riots occurred on account of laxity and indifference of the administration
in enforcing law and order cannot be doubted.
If expeditious and timely action is taken effectively and efficiently,
undoubtedly such riots can be prevented or curtailed.
The state is enjoined to implement the expressed will and give full
effect to the constitutional promises. The
message to those guilty must be clear and unequivocal that their actions would
not be tolerated and that they would be strictly dealt with. Simultaneously, the state cannot ignore its duty in ensuring
the creation of civilised values and behaviour.
6.
Noticing the sweep of Article 21, the Apex Court in the judgment reported
at JT 1996 (1) SC 163 entitled the National Human Rights Commission Vs. State of
Arunachal Pradesh & Another held
thus:-
“9. The
sweep of Article 21 is wide and far reaching.
Article 21 is not to be restricted to the violation of right to life and
liberty committed by the State alone. That
right is also to be protected and safeguarded by the State from being violated
or interfered with by private individuals.
In National Human Rights Commission
v. State of Arunachal Pradesh & another, JT 1996 (1) S.C. 163, the
Supreme Court held that the State is bound to protect the life and liberty of
every person and it cannot permit any body or group of persons to threaten it.
The Supreme Court in this regard held as follows:-
“We
are a country governed by the Rule of Law.
Our constitution confers certain 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 any body
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 giving such threats would be liable to be dealt with in accordance
with law. The State Government must
act impartially and carry out its legal obligations to safeguard the life,
health and well being of Chakmas residing in the State would 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.”
“10.
Article 21 is the Nation's commitment to bring every individual or group
of persons within its protective fold. This
Nation belongs to members of all the communities.
They are equal members of the Indian society.
Equality before law and equal protection of laws is ensured to them by
Article 14 of the Constitution to them. None
is to be favoured or discredited. The
conduct of any person or group of persons has to be controlled by the State for
the lofty purpose enshrined in Article 21 of the Constitution.
It is the duty of the State to create a climate where the cleavage
between members of the society belonging to different faiths, caste and creed
are eradicated. The State must act
in time so that the precious lives of the people are not destroyed or
threatened. Otherwise, Article 21
will remain a paper guarantee. Time
is long overdue for adopting measures that have more than a hortatory effect in
enforcing Article 21 of the Constitution. The
State cannot adopt a “do nothing attitude”.
Like disease prevention, the State must take every precaution, measure
and initiative to prevent terrorem populi of the magnitude represented by 1984
riots and in the event of an cut-break of riots it must act swiftly to curb the
same and not allow precious time to slip by, as any inaction or passivity on its
part can result in loss of precious life and liberty of individuals amounting to
violatin and negation Article 21 of the Constitution.
The State has to enforce minimum standards of civilized behaviour of its
citizens so that the life, liberty, dignity and worth of an individual is
protected and preserved and is not jeopardised or endangered.
If it is not able to do all that then it cannot escape the liability to
pay adequate compensation to the family of the person killed during riots as his
or her life has been extinguished in clear violation of Article 21 of the
Constitution which mandates that life cannot be taken away except according to
the procedure established by law.
7.
It is noteworthy that the Bhajan Kaur case (Supra) had been filed by a
widow of a 1984 riots victim whose husband Shri Narain Singh lost his life on 1st
November, 1984 in the riots which took place after the assassination of Smt.
Indira Gandhi. According to Bhajan
Kaur, on the fateful days, her husband was travelling by the Bombay-Firozpur
Janta Express train. According to
FIR No.355 dated 1st November, 1984 lodged at Police Station New
Delhi Railway Station, around 12.30 noon, the train stopped at Tuglakabad
Railway Station where 300-350 villagers surrounded it.
They pulled up 25-26 passengers from the train and killed them.
The persons killed included Narain Singh, son of Jawahar Singh who was a
resident of Village Bhalajala Tehsil Taran, Distt. Amritsar, Punjab.
Smt. Bhajan Kaur had impugned the action of the Delhi Administration in
awarding ex gratia compensation of Rs.20,000/- to her by means of a cheque on
the ground that the same was too meagre and deserved to be enhanced.
It is noteworthy that the writ petition was filed in 1996 after the riots
which had occurred in 1984.
8.
I may notice here that in the instant case, the petitioner is admittedly
a victim who has stated that he has suffered at the hands of mob who
pulled him out of the train at the same Railway Station Tuglakabad near
Delhi on 2nd November, 1984 (This is one day after Bhajan Kaur's
husband Shri Narain Singh was pulled out by the mob at the same spot).
Callous disregard and failure to discharge its constitutional obligation
on the part of the state is writ large from the fact that even two days after
the commencement of riots on 31st October, 1984 and despite having
full knowledge of the sensitive spot, no action was taken by the state to
discharge its prime duty of ensuring security to its citizens.
The train of the present petitioner was stopped at the same Railway
Station at Tuglakabad. The passengers of one community are stated to have been
pulled out of the compartment at the same spot.
Seven of them are stated to have been killed while the petitioner escaped
death only because he was so badly battered that the mob believed that he had
also expired.
9.
The complete breakdown of the state machinery is evident from the fact
that as in the present case, even in Bhajan Kaur's case, the FIR relating to her
husband was not lodged by the local police where the incident occurred at the
Tuglakabad, but was lodged at the New Delhi Railway Station.
10.
The stand of the respondents in the instant case is to the effect that
because there is no F.I.R. and no documentary proof of the incident or of the
injuries suffered by the petitioner, he could not be given any further
compensation other than the meagre policy amount of Rs.2,000/- sent to him
on the 2nd June, 1986.
11.
I may notice that Smt. Bhajan Kaur was paid the ex gratia amount of
Rs.20,000/- pursuant to the same policy of the State Government whereby it had
been decided to pay Rs.20,000/- in the case of death, and Rs.2,000/- in the case
of injury suffered on account of the afore-stated riots.
Commenting on the adequacy of the compensation which had been decided to
be paid by the state, Anil Dev Singh, J in Bhajan Kaur's case stated that -
“18. It
cannot be denied that the State recognised the factum of death of the
petitioner's husband during the riots and it was in recognition thereof that the
financial assistance in the form of compensation of Rs.20,000/- was given to the
petitioner. The compensation to a
widow or the family of a person who lost his life during the riots is highly
inadequate. It is mockery of
compensation for a riot victim. When
a wife loses her husband, children their father, parents their son in a riot, it
amounts to a cruel joke to give
Rs.20,000/- as financial aid to the family of a
deceased. This paltry sum of
Rs.20,000/- cannot by any standard be the tower of their hope and strength.
The very offer of such a sum would aggravate the pain and suffering,
rather than reducing the same. The
time when the blow is fresh, it is then that the family should receive adequate
financial aid or compensation to tide over immediate financial crisis and look
to the future with a glimmer of hope. It
is true that life of an individual cannot be compensated by payment of money,
but at the same time it relieves financial strain and alleviates the sufferings
of the victims and their families. Financial
aid of Rs.20,000/- as a measure of immediate relief is, as already stated,
grossly inadequate and is far from being just, fair and reasonable.
It is no victory for the victim.
xxx
xxx
xxx
xxx
25. Though the aforesaid cases do not
pertain to riots, but broadly the quantum of compensation or financial aid for
the loss of a near one can be ascertained therefrom.
The decisions show that the judicial trend is to award substantial
compensation for illegal extinction or deprivation of life and liberty.
The loss of life in jail at the hands of inmates or jail authorities and
loss of life outside the jail at the hands of functionaries of the State or
rioters bring the same tragic results for the families of the victims.
Therefore, no distinction can be made for the purpose of grant of
compensation in the aforesaid situations. Thus,
the principles for grant of compensation or financial aid to the families of the
victims whose lives are taken away without due process of law should be the
same.
26. Having
regard to the aforesaid discussion and decisions it appears to me that the ex
gratia payment made to the petitioner and families of the riot victims of 1984
is unrealistic and does not equip them to lead a life of dignity and proper
human existence, and to be able to live an adequate human life to satisfy human
wants - if all human wants cannot be satisfied, they should be satisfied so far
as possible and at least to the extent of decent human minimum.
The State is duty bound to adopt a realistic approach in keeping with the
spirit of Article 21 of the Constitution. The
State should be mindful of the fact that in cases where liberty of individuals
was curtailed illegally the Supreme Court awarded Rs.50,000/- as compensation to
them with a right to prosecute their claims for further compensation in
appropriate proceedings.
27. Here
we are concerned with illegal extinction of life by mobs which put into
execution their plans openly in public places and in full gaze of the
authorities. It was not something
done clandestinely for which the State could plead ignorance.
At least in the capital of the country the State has requisite resources
to prevent the riots. It cannot
afford to ignore even a small indication or sign of a likely flare up of
communal tension, and at the stage itself it has to respond by educating the
masses and deploying adequate police or para military forces to diffuse the
situation. The Report of Justice
R.N. Misra Commission of Inquiry refers to the passivity, callousness and
indifference of the police of Delhi in the matter of controlling the situation
during the 1984 riots. In this
regard, the Commission observed as follows:-
“On
the other hand, as held earlier, the evidence fits into the position that
when the incidents started taking place nd the police remained passive, leading
to the generation of feeling that if Sikhs were harassed no action would be
taken, the situation fast deteriorated and the anti-social got into the fray and
gave the lead after taking over the situation..........(Page 30 of the report)
There is abundant evidence before the
Commission that the Police on the whole did not behave properly and failed to
act as a professional force. Telephone
No.100 which is meant for notifying for police assistance did not respond at all
during that period. The police
stations when contacted on telephone ordinarily did not respond and if there was
any response it was a plea of inability to assist.
The behaviour of most policemen was shabby in the sense that they allowed
people to be killed, houses to be burnt, property to be looted, ladies to be
dragged and misbehaved with in their very presence.
Their plea was that they were a few and could not meet the unruly armed
mob usually of hundreds or thousands. Some
senior police officers had taken the stand that the community was in a frenzy
and to meet the cruel mob greater strength of force was necessary.
Obviously, the police could not expect that their number had to be equal
to that of the miscreants. A
professional police force by its expertise, experience and training was expected
to meet any challenge and was not to seek cover under an umbrella of excuses
based upon instructions in archaic Police Rules.
Has any hero been heard of opening his scriptures when he suddenly meets
a challenge to his life...........(Pages 22 & 34 of the report)
There is evidence which the Commission
cannot ignore that on several occasions when fire tenders started moving to
places of arson on receiving intimation, the mobs blocked the passage and held
them up or forced them to return. On
several occasions this was done in the presence of the police.
It is well-known that fire tenders have precedence of movement on the
roads for they move to answer an
emergency, yet the police did not attempt to clear the way.
Several instances have come to be narrated
where police personnel in uniform were found marching behind, or mingled in the
crowd. Since they did not make any
attempt to stop the mob from indulging in criminal acts, an interference has
been drawn that they were part of the mob and had the common intention and
purpose. Some instances, though few
in number, have also been noticed where policemen in uniform have participated
in looting ...................... (Page 37 of the report)
The Commission has found that the police
at Delhi showed total passivity and callous indifference when called upon to
perform its duty.”
28. While
considering the question of grant of compensation or ex-gratia payment to the
petitioner and families of the victims killed during the riots, all the
aforesaid aspects have to be kept in view.
It is also noteworthy that the Supreme Court awarded Rs.1 lakh to Rs.7.5
lakhs for illegal curtailment of life as indicated in the aforesaid decisions.
Therefore, obviously the compensation or ex gratia payment as a measure
of immediate relief to the victim's family
should be more than Rs.50,000/- and between Rs.1 lakh and Rs.7.5 lakhs.
29. It
has been brought to my notice by Mr. Adarsh Goel, learned counsel for the
respondent-Govt. Of NCT of Delhi, that widows of riot victims are being paid
Rs.1,000/- per month as pension. Learned
counsel has produced on record a copy of letter No.F.9(38)/R-1/DC/88/648 dated
May 17, 1996, from, the Deputy Director (Relief-1), Office of the Deputy
Commissioner, Delhi, to the Desk Officer, Ministry of Home Affairs, Govt. of
India, North Block, New Delhi, along with report regarding progress of relief
and rehabilitation measures in regard to riot victims of 1984.
According to the report, 195 widows are getting pension.
Be that as it may, the financial assistance of Rs.20,000/- which was to
ameliorate the immediate effect and the long term effect of the killing of an
earning hand, was highly inadequate and unfair.
30. Having
regard to the aforesaid discussion and also keeping in view the decisions of the
Supreme Court I am of the opinion that the petitioner should have been paid at
least a sum of Rs.2 lakhs as compensation.
Since the petitioner has already been paid a sum of Rs.20,000/- the
respondent is directed to pay a sum of Rs.1,80,000/- to the petitioner with
interest from October 1984 to the date of payment, which is quantified at
Rs.1.50 lakhs. The respondent will
make the payment of Rs.3.30 lakhs to the petitioner within one month.
31. This
direction to pay enhanced compensation would be applicable to similar cases in
order to secure parity and to alleviate the sufferings of the families of the
victims who lost their lives during the Delhi riots of 1984.
Accordingly, it is directed that the widows &families of the victims
who lost their lives in the 1984 Delhi riots be paid a sum of Rs.3.50 lakhs (Rs.
2 lakhs with interest quantified at Rs.1.50 lakhs).
The payment would be made to them by the respondent after adjusting the
amount, if any, paid to them as ex gratia grnat of compensation.
It will also be open to the Govt. of N.C.T. of Delhi and the Union of
India to consider the grant of compensation over and above the aforesaid amount
depending upon the circumstances of the families of the riots victim.
I would also direct the State to constitute a Committee to disburse the
amount of compensation quantified as above to the families of those who were
killed in riots after their proper identification.
I order accordingly. The
exercise should be completed within a period of four months.
The State and the Union, as the case may be, will be well advised to
locate the responsibility for the riots whenever and wherever they occur and the
persons held responsible for the same should be made to pay compensation and the
law should provide for confiscation of their properties so as to secure payment
of compensation out of the assets so confiscated.
In case it is found that an official or officials of the State did not
act in time or were indifferent to mob violence, they should also be required to
make reparations to the victims and face disciplinary proceedings.”
12.
I may notice that despite the directions of this court in Bhajan Kaur's
case, there is nothing forthcoming with regard to the fixation and location of
responsibility for the riots or for confiscation of property so as to secure
payment of compensation.
13.
The present case is concerned not with the death of the victim but
relates to the injuries suffered by the victim.
The petitioner is stated to have been pulled out of the railway coach,
beaten and left on the track. He
has submitted that he was picked up from the track by the Army Authorities who
brought him to New Delhi Railway Station where a Cell had been created for riot
victims. He was taken to Lok Nayak Jai Prakash Hospital and given an
indoor ticket bearing CR No.209537. The
petitioner has submitted that he was not travelling alone and he had a sister
who was travelling with him. He was
extremely concerned about her fate after he had been thrown out of the train and
brought to the hospital. In these
circumstances, he got himself discharged from the hospital and went to look for
his sister.
14.
The respondents have unfairly sought to draw advantage from the fact that
the petitioner did not remain admitted in hospital.
It has been contended that he suffered hardly any injury in as much as he
was able to leave the hospital.
To say the least, such a stand, apart from being only insensitive, is
completely unrealistic. Normal
human conduct would show the terror in the mind of the victim who had narrowly
escaped death and seen his co-passengers being beaten to death.
The machinery of the State having failed in its duty to protect, there
would be a feeling of distrust and insecurity in a state run institution.
The petitioner would obviously have been deeply concerned about the
welfare and well being of his sister who had also been travelling in train with
him but was not in the hospital. It
is, therefore, to be expected that any right thinking person would seek to leave
the hospital at the earliest in order to ensure the welfare and well being of
his kith and kin. Concern
for his missing sister outweighed all concerns of his own injuries and the
petitioner ignored his wounds while getting his discharge from the Hospital.
The petitioner has contended that so grave was the trauma and insecurity
experienced by them, that the petitioner and his sister left for Punjab to the
security of their home at the first available opportunity.
The stitches which had been put at the L.N.J.P. Hospital were got removed
in Punjab and the document in this behalf has been placed on record.
The respondents have placed no material before this court with regard to
the extent of damage, death toll, the numbers of the injured in the incident in
which the petitioner was injured. Even
records relating to the petitioner have not been placed before me even though
the same would be in their power and possession.
15.
I find that the issue of compensation on account of contravention of
human rights and fundamental freedoms has fallen for consideration before the
Apex Court in several judgments. The
legal principles which are applicable in such cases are well settled.
It has been held that the protection which is guaranteed in the
Constitution is an acknowledged remedy for enforcement and protection of such
rights. It is settled law that
such a claim based on strict liability made by resorting to a
Constitutional remedy provided for enforcement of the fundamental rights, is
distinct from and in addition to the remedy in private law for damages for the
attack resulting from the contravention of fundamental rights.
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 to such 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 power and enforcement
of the fundamental right is claimed by resorting to the remedy in public law
under the Constitution by recourse to Articles 32 and 226 of the Constitution.
This view was taken by the Apex Court in the judgment reported at AIR
1993 SC 1960 entitled Smt. Nilabati Behara alies Lalita Behura Vs. State of
Orissa & Others; Khatri (II) Vs. State of Bihar 1981 (1) SCC 627 (also
AIR 1981 SC 928) and Khatri (IV) Vs. State of Bihar (1981) 2 SCC 493 (AIR
1981 SC 1068).
The Apex Court had observed that the court is not helpless to grant
relief in the case of violation of the rights to life and personal liberty, and
it should be prepared to forge new tools and devices for the purpose of
vindicating these precious fundamental rights.
It was also indicated that the procedure suitable in the facts of the
case must be adopted for conducting the inquiry needed to ascertain the
necessary facts, for granting the relief as the available mode of redress, for
enforcement of the guaranteed fundamental rights.
16.
In Union Carbide Corporation Vs. UOI reported at 1991 (4) SCC 584 (AIR
1992 S.C. 248), the Apex Court observed that we have to develop our own law and
find what is necessary to construct a new principle of liability to deal with
the unusual situation which has arisen and which is likely to arise in future.
There is no such reason why we should hesitate to evolve such principle
of liability.
17.
In the Nelabati Behura case (Supra), the court observed as under:-
“19. We
respectfully concur with the view that the court is not helpless and the wide
powers given to this Court by Art.32, which itself is a fundamental right,
imposes a constitutional obligation on this Court to forge such new tools, which
may be necessary for doing complete justice and enforcing ꗬÂ⁍Їሀ¿ Ѐ蒢
慃汯湡〷Ї긨뿂ŽÃÈlƀƀƀƔ8nj,Ǹ|ڣɒɴʊ(ڂࣵȠڎn
this behalf. The contrary view
would not merely render the court powerless and the constitutional guarantee a
mirage, but may, in certain situations, be an incentive to extinguish life, if
for the extreme contravention the court is powerless to grant any relief against
the State, except by punishment of the wrongdoer 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 havenots, 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.”
18.
I may also notice the observation of Dr. A.S. Anand, J (as his lordship
then was) in his concurring judgment in Smt. Nilabati Behura case (Supra) where
it was observed as under:-
“33. The public law proceedings serve a
different purpose than the private law proceedings.
The relief of monetary compensation, as exemplary damages, in proceedings
under Article 32 by this Court or under Article 226 by the High Courts, for
established infringement of the indefeasible right guaranteed under
Article 21 of the Constitution is a remedy available in public law and is
based on the strict liability for contravention of the guaranteed basic and
indefeasible rights of the citizen. The
purpose of public law is not only to civilize public power but also to assure
the citizen that they live under a legal system which aims to protect their
interests and preserve their rights. Therefore,
when t he court moulds the relief by granting “compensation” in proceedings
under Article 32 or 226 of the Constitution seeking enforcement or protection of
fundamental rights, it does so under the public law by way of penalising the
wrongdoer and fixing the liability for the public wrong on the State which has
failed in its public duty to protect the fundamental rights of the citizen.
The payment of compensation in such cases is not to be understood, as it
is generally understood in a civil action for damages under the private law but
in the broader sense of providing relief by an order of making `monetary amends'
under the public law for the wrong done due to breach of public duty of not
protecting the fundamental rights of the citizen.
The compensation is in the nature of
`exemplary damages' awarded against the wrongdoer for the breach of its
public law duty and is independent of claim compensation under the private law
in an action based on tort, through a suit instituted in a court of competent
jurisdiction or/and prosecute t he offender under the penal law.
34. This
Court and the High Courts, being the protectors of the civil liberties of the
citizen, have not only the power and jurisdiction but also an obligation to
grant relief in exercise of its jurisdiction under Articles 32 and 226 of the
Constitution to the victim or the heir of the victim whose fundamental rights
under Article 21 of the Constitution of India are established to have been
flagrantly infringed by calling upon the State to repair the damage done by its
officers to the fundamental rights of the citizen, notwithstanding the right of
the citizen to the remedy by way of a civil suit or criminal proceedings.
The State, of course, has the right to be indemnified by and take such
action as may be available to it against the wrongdoer in accordance with law
– through appropriate proceedings. Of
course, relief in exercise of the power under Article 32 or 226 would be granted
only once it is established that there has been an infringement of the
fundamental rights of the citizen and no other form of appropriate redressal by
the court in the facts and circumstances of the case is possible.
The decision of this Court in the line of cases starting with Rudul Sah
v. State of Bihar, (1983) 3 SCR 508 : (AIR 1983 SC 1086). granted monetary
relief to the victims for deprivation of their fundamental rights in proceedings
through petitions filed under Article 32 or 226 of the Constitution of India,
notwithstanding the rights available under the civil law to the aggrieved party
where the courts found that grant of such relief was warranted.
It is sound policy to punish the wrongdoer and it is in that spirit that
the courts have moulded the relief by granting compensation to the victims in
exercise of their writ jurisdiction. In
doing so the courts take into account not only the interest of the applicant and
the respondent but also the interests of the public as a whole with a view to
ensure that public bodies or officials do not act unlawfully and do perform
their public duties properly particularly where the fundamental rights of a
citizen under Article 21 is concerned. Law
is in the process of development and the process necessitates developing
separate public law procedures as also public law principles.
It may be necessary to identify the situations to which separate
proceedings and principles apply and the courts have to act firmly but with a
certain amount of circumspection and self-restraint, lest proceedings under
Article 32 or 226 are misused as a disguised substitute for civil action in
private law. Some of those situations have been identified by this Court
in the cases referred to by Brother Verma, J.”
19. I
may also appropriately refer to the observation of the Division Bench of this
court in the judgment reported at 2001 (1) JCC Delhi 57 entitled Govt. of NCT of
Delhi Vs. Shri Nasiruddin (Father _________
ein it was said that the court is not helpless to grant be relied on
exclusively to arrive at a reasonable estimate of just compensation for mush
pertains to the realms of hypothesis, and in that region arithmetic is a good
servant but a bad master and therefore, an award should be of a round sum rather
than one actually computed. (Per
Lort Ruttan J, in Bal v. Kraft 1967 ACJ 235 Supreme Court of British Columbia,
Canada). The following broad
principles govern the grant of damages:-
(i)
There should not be any negligence on the part of the claimant himself.
(ii) There
should not be any improper conduct on the part of the claimant himself.
(iii) The
claimant should have taken all the reasonable action to maintain the loss on
injury sustained by him.
(iv) The
acts of the claimant should be lawful, just and reasonable.
(v) The
amount of damages should not exceed the loss sustained by him, and damages may
be minimized if own conduct has resulted contributory negligence, or has
rendered some of the damages too remote or has constituted a failure to mitigate
the damages, either by not taking such steps to reduce the original loss or to
avert further loss.
xxx xxx
xxx
21. It
is true that perfect compensation is hardly possible and money cannot renew a
------------------ e in the same position financially, as he was before
accident. Broadly speaking, in the
case of death basis of compensation is loss of pecuniary benefits to the
dependants of the deceased which includes pecuniary loss, expenses, etc. and
loss to the estate. Object is to
mitigate hardship that has been caused to the legal representative due to
suddent demise of the deceased in the accident.
Compensation awarded should not be inadequate and should neither be
unreasonable, excessive, nor deficient. There
can be no exact uniform rule for measuring the damage.
It cannot be arrived at by precise mathematical calculation, but amount,
recoverable depends on broad facts and circumstances of each case.
It should neither be punitive against whom claim is decreed nor it should
be a source of profit of the person in whose favour it is awarded.
Upjohn L.J. In Charter House Credit
v. Tolly; (1963) 2 QB 683 remarked,
“ the assessment of damages has never been an exact science, it is essentially
practical”.
20.
The award of monetary relief to the victim for deprivation of fundamental
right is to be guided by the afore-stated principle requiring the state to make
monetary amends under public law for the wrong done due to breach of the public
duty of not protecting the fundamental rights of the citizens.
This computation is not guided by any strict arithmetical formula
and it has to be borne in mind that money cannot remove the trauma and
the battering suffered by a victim.
21.
It is noteworthy that it would be impossible to recover from the
terror which was generated against the community to which the petitioner
belonged in 1984. The mark left by
such riots and the insecurity generated as a result in the minds of those who
suffered at the hands of the marauding mobs may perhaps never get obliterated.
The pain of seeing loved ones being killed before the eyes of the
surviving victims may perhaps never be extinguished and undoubtedly the feeling
of anger against the state which failed to take any action for the protection
and preservation of life, limb and property of the riot victims shall never
cease.
22.
In the judgment reported at 2001 (2) SCALE 495 entitled S.S. Ahluwalia
Vs. UOI, dealing with 1984 riots in different states, it was held by the Apex
Court that what holds true for loss of life would equally applies to loss of
limbs.
23.
Admittedly, on the 5th July, 1996, this court pronounced in
Bhajan Kaur's case to the effect that the compensation in the death cases of
Rs.20,000/- was highly inadequate and unfair.
The court was pleased to enhance the compensation payable to the
survivors where there had been a death,
to the extent of Rs.2,00,000/- and was pleased to direct payment of interest
from October, 1984 to the date of payment.
The interest at the time of pronouncement of the judgment on 6th
July, 1996 was quantified at Rs.1,50,000/-.
24.
Undoubtedly, keeping in view the directions made by the court in the
matter relating to a death on account of riots, and the observations of the
court, in all fairness, the state should have examined all cases where it had
paid compensation in respect of injuries as well.
25.
The petitioner was deprived of copies of the records relating to his own
injuries on the ground that the same was a medico legal case.
I find that the petitioner lodged his claim with the respondents
for the first time on 8th November, 1984.
This was followed by a legal notice on 19th November, 1984.
He has made a claim with the Deputy Commissioner on 28th
November, 1985 on the prescribed proforma and has also submitted a list of his
articles. The petitioner has also
sent reminders on 14th August, 1985, 8th November, 1985,
28th November, 1985, 10th December, 1985 and 17th
November, 2000. The petitioner did his best to obtain copies of the records
from the Lok Nayak Jai Prakash Hospital. However,
he received a letter dated 3rd July, 1986 from the Medical Officer
Incharge at the Lok Nayak Jai Prakash Narain Hospital to the following effect:-
“With reference to your letter No. dated
13.12.85 on the subject noted above, it is to be informed that the information
can be given to you being a Medico Legal Case.
The particulars of injuries etc. will be intimated to the Commissioner of
Relief, Tis Hazari, Delhi as and when the Court of law desires.”
26.
This court has already held that the compensation given as ex gratia by
the state to the victims of the riots in 1984 is highly inadequate.
27.
There is no warrant for disbelieving the petitioner as stated that his
belongings were also lost in the riots. Perusal
of the list shows that the same consists of personal items etc. small amount of
cash, suitcase containing his cloths valued at hardly Rs.2,000/- wrist watch of
Rs.225/- gold ring of Rs.800/- cash in pocket Rs.4800/- cash in other pockets at
Rs.225/- and compensation for injuries and treatment of Rs.10,000/- only.
General damages on account of shock and agony of Rs.1,00,000/- have been
claimed.
The petitioner has submitted that in reply to the letter from the
respondents dated 14th August, 1985 telling him that his claim was
not in a proper form, he has submitted the claim in the proper format to the
respondents on 8th November, 1985 and no heed was paid to repeated
representations.
28.
It has been pointed out that the respondents accepted that the petitioner
was a victim of riots and paid him the policy amount of Rs.2,000/- by cheque.
In these circumstances, I have no manner of doubt that the amount of
Rs.2,000/- which was paid to the petitioner on account of the ex gratia for the
injuries etc. suffered by him on account of riots, is grossly inadequate.
29.
The respondents have sought to explain their action on the ground that
they had made payment as per the policy and that the petitioner accepted the
same. Much issue was made to urge
that the injuries suffered by the petitioner were only minor which fact,
according to the respondents, evidenced by his release from the hospital at the
same day. The respondents have
vehemently contended that the petition suffers from unexplained delay and laches
and that the respondents did not have any records relating to the case of the
petitioner. It has been contended
that the writ petition deserves to be dismissed on this ground alone.
30.
This court has entertained Bhajan Kaur's petition in 1996 and held in
the decision rendered on 5th July, 1996 that the decision of the
respondents to pay Rs.20,000/- in a death case in the same riots was inadequate.
There is nothing on record to show that the respondents have complied
with the directions given in that case. The
findings and directions of the court were clear and unambiguous.
The respondents had a duty to enforce the same.
Having failed to do so, the State cannot be permitted to avoid its
liability to the petitioner on the ground of laches.
It is to be noticed that the respondents failed to even acknowledge the
petitioner's representations let alone address the same.
31.
It is to be borne in mind that the injuries were suffered at Delhi by the
petitioner who was a resident of Punjab. An unruly, marauding mob was permitted
to stop the train in which the petitioner was travelling and pulled out
passengers from a train and battered them to death.
Despite the demise of Ms. Indira Gandhi on 31st October, 1984
and full knowledge of the fact that riots had commenced in Delhi, the State
failed to take action either on 31st October, 2004 or on 1st
or 2nd November, 2004. The
nature of the violence and the frenzy of the mob is borne from the fact that no
police complaints even have been lodged at the place of the incident.
Bhajan Kaur lost her husband on 1st November, 2004 at the same
spot where the petitioner suffered the injury the next day.
The petitioner was denied the equal protection of law by the machinery of
the State as was constitutionally guaranteed to the petitioner under Article 21.
32.
The respondents accepted their liability to compensate the petitioner as
well as the genuineness of his claim, and made payment of Rs.2000/- to him.
The petitioner has explained the delay in approaching this court by
pointing out that he has been repeatedly representing to the respondents.
His applications have not been adjudicated upon till date and admittedly
the respondents have paid only an ex gratia amount. The petitioner submits that despite request even to the
hospital for medical records, the same has not been given.
33.
I find that the petitioner had addressed a letter dated 21st
December, 2000 to the Registrar of this court based whereon this court had
directed the same to be registered as Public Interest Litigation bearing
No.1982/2001.
34.
Perusal of the order sheet shows that on account of failure to file the
counter affidavit, this court had closed the right of the respondents to file
the counter affidavit. Development
Commissioner (Relief Grant) was directed to remain personally present and had
appeared only on 14th December, 2004.
The counter affidavit was permitted to be filed only subject to payment
of costs.
There was no counter affidavit forthcoming on record even on 21st
March, 2005 when the petition was taken up for hearing.
An undated, unsigned copy of the respondents response has been handed
over in court during the course of hearing.
Such is the position emanating even in response to court orders.
35.
In the judgment reported at AIR 1967 S.C. 1272 entitled Chandra
Bhushan & Anr. Vs. The Deputy Director of Consolidation, Uttar Pradesh
(Regional) Lucknow and Ors., the Apex Court held that there are no statutory
rules prescribing a period for preferring a writ petition.
Delay and laches was merely a rule of practice and cannot prescribe a
binding rule of limitation, which rule may only indicate how the discretion
would be exercised by the court in determining whether having regard to the
circumstances of the case, the applicant has been guilty of laches or undue
delay.
It has been held by the Apex Court that delay by itself may not defeat
the claim for relief unless the position of the other party had been so altered
which cannot be retracted on account of lapse of time or inaction of the other
parties.
A delayed petition will be rejected also if ground of relief puts an
undue hardship in any manner by reason of the delay in approaching the High
Court for the relief by the party. Reference
in this regard can be made to (1999) 4 SCC 450 entitled Hindustan
Petroleum Corporation Ltd. & Another Vs Dolly Das.
36.
Having regard to the facts and circumstances of the instant case, there
is no reason to hold that the writ petition suffers from delay and laches.
37.
Keeping in view the entire conspectus of facts and the nature of claim
made on behalf of the petitioner and the conduct of the respondents in 1984 and
thereafter, I am of the view that the ex gratia amount of Rs. 2000/- is by no
means adequate compensation for the failure to protect the limb and property of
the petitioner. The petitioner has
submitted that he has been an advocate by profession.
On account of extreme trauma suffered by him, he has not been able to
recoup his profession and suffered a lot.
There is no reason to disbelieve such statement.
Different individuals may react differently in the same situation.
There can possibly be no scale to measure the depth of the emotional
wounds and trauma as a result of undergoing the experiences of the petitioner.
He bore the brunt of the attack by the mob and barely escaped death.
Scars so left may never heal.
38.
Keeping in view the amount awarded by this court in Bhajan Kaur case for
the loss of life, in my view, the petitioner ought to be compensated by a sum of
Rs.75,000/- for the injuries suffered by him and deprivation of his property on
account of the riots on 2nd November, 2004.
Since the petitioner has already been paid a sum of Rs.2,000/-, the
respondents is directed to pay a sum of Rs.73,000/- to the petitioner with
interest from October, 1984 to the date of payment.
The interest is quantified at Rs.50,000/-.
The respondents will, therefore, make payment of Rs.1,23,000/- to the
petitioner within one month.
39.
This court in the judgment dated 5th July, 1996 reported at
1996 III AD Delhi 333 entitled Bhajan Kaur Vs. Delhi Administration, directed the respondents to
pay the enhanced compensation awarded to all similar cases.
In order to secure parity to all persons who suffered injuries, the
respondents shall pay the enhanced compensation awarded herein to all such
persons to whom the respondents had disbursed the amount of Rs.2,000/- as ex
gratia on account of the injuries received in the 1984 riots.
40.
The petitioner shall be entitled to costs of the present proceedings
which are quantified at Rs.11,000/-.
This writ petition is allowed in the above terms.
(GITA MITTAL)
JUDGE
May
, 2005
aa