High Court · 2012

2. Since the allegations in the petition were denied by the State, this Cou rt directed the District and Sessions Judge, Nalbari to make an enquiry and give a report to this Court. Accordingly, after recording necessary evidence, the re port dated 21.11.2003 was given to this Court, copies of which were made availab le to the parties. The report was duly considered by the learned Single Judge wh ich is to the effect that a mob of 500/600 persons gathered in front of the Poli ce Station and started pelting stones causing injuries to police personnel. The police opened fire to disperse the mob. The mob again attacked the Police Statio n with deadly weapons and also tried to set fire to the Police vehicles. Some me mbers of the mob trespassed into the Police Station and assaulted a Constable wi th a dagger. In such circumstances, the Police opened fire resulting into the de ath of Md. Hussain Ali, son of the petitioner.

3. Learned Single Judge held that it was clear from the record that on acco unt of the situation created by the mob causing injuries to the police personnel , the police had to resort firing resulting into the death of the son of the app ellant. Learned Single Judge came to the conclusion that the firing resorted to by the police could not be said to be unjustified or uncalled for. The grant of compensation is permissible only if the act of the firing could be held unjustif ied and uncalled for or torturous. The finding recorded by the learned Single Ju dge is as follows:- (cid:28)The arguments offered, though theoretically correct, has necessarily to be cons idered in light of the averments made by the petitioner in paragraph -3 of the w rit petition wherein it has been clearly stated that there was a mob which had a ttacked the Police Station and to disperse the said mob the police had initially carried out a lathi charge and thereafter, resorted to firing leading to the de ath of the petitioner’s son. If the basic facts stated in the report of the Supe rintendent of Police are not disputed by the petitioner, as evidence from the co ntents of paragraph-3 of the writ petition, it is difficult to understand as to how the version put forward by the police, though not on oath, should be discard ed by the Court. If there was a mob which had attacked the Police Station causin g injuries to the police personnel and damage to Govt. properties, the firing re sorted by the Police cannot be said to be unjustified or uncalled for. The entit lement of the petitioner to compensation is primarily founded on the liability o f the Respondents under the law of Tort. Such liability will follow only if a sa tisfaction can be generated by the Court that the act leading to the death was u njustified, unprovoked or was culpably negligent. None of the aforesaid requirem ents are, in any manner, present in the instant case which would warrant the Cou rt to grant compensation to the petitioner for the unfortunate incident. (cid:29)

4. ate. We have heard learned counsel for the appellant. None appears for the St Learned counsel for the appellant submits that at one stage, the Deputy 5. Commissioner had made a recommendation for compensation and therefore, the compe nsation should have been granted.

6. ant. We are unable to accept the submission of learned counsel for the appell

7. While we are conscious of need to allow invocation of public law remedy for grant of compensation wherever fundamental right to life is violated by wron gful action of a public authority, particularly on account of custodial violence or death, such remedy may not be appropriate where violation of right is not cl early shown. In Nilabati Behera (Smt.) alias Lalita Behera (Through the Supreme Court Legal AidCommittee) Vs. State of Orissa and others, (1993) 2 SCC 746, it was observed: (cid:28)10. In view of the decisions of this Court in Rudul Sah v. State of Bihar and A nr. (1983) 4 SCC 141, Sebastian M. Hongray v. Union of India and Ors. (1984) 1 S CC 339, Sebastian M. Hongray v. Union of India and Ors. (1984) 3 SCC 82, Bhim Si ngh v. State of J&K , 1984 Supp SCC 504, Bhim Singh vs. State of J&K (1985) 4 S CC 677, Saheli: A Women’s Resources center and Ors. v. Commissioner of Police, Delhi Police Headquarters and Ors. (1990) 1 SCC 422 and State of Maharashtra and Ors. v. Ravikant S.Patil (1991) 2 SCC 373 , the liability of the State of Oris sa in the present case to pay the compensation cannot be doubted and was rightly not disputed by the learned Additional Solicitor General. It would, however, be appropriate to spell out clearly the principle on which the liability of the St ate arises in such cases for payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in an action on tort. It may be mentioned straightway that award of compensation in a proceeding under Article 32 by this court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict lia bility for contravention of fundamental rights to which the principle of soverei gn immunity does not apply, even though it may be available as a defence in priv ate law in an action based on tort. This is a distinction between the two remedi es to be borne in mind which also indicates the basis on which compensation is a warded in such proceedings. We shall now refer to the earlier decisions of this Court as well as some other decisions before further discussion of this principl e.

12. It does appear from the above extract that even though it was held that comp ensation could be awarded under Article 32 for contravention of a fundamental ri ght, yet it was also stated that ’the petitioner could have been relegated to th e ordinary remedy of a suit if his claim to compensation was factually controver sial’ and ’Article 32 cannot be used as a substitute for the enforcement of righ ts and obligations which can be enforced efficaciously through the ordinary proc esses’. This observation may tend to raise a doubt that the remedy under Article 32 could be denied ’if the claim to compensation was factually controversial’ a nd, therefore, optional, not being a distinct remedy available to the petitioner in addition to the ordinary processes. The later decisions of this Court procee d on the assumption that monetary compensation can be awarded for violation of c onstitutional rights under Article 32 or Article 226 of the Constitution, but th is aspect has not been adverted to. It is, therefore, necessary to clear this do ubt and to indicate the precise nature of this remedy which is distinct and in a ddition to the available ordinary processes, in case of violation of the fundame ntal rights (cid:29).

8. In Tamil Nadu Electricity Board v. Sumathi and others, (2000) 4 SCC 543, it was observed: (cid:28)7. Respondents in these appeals before us have strongly relied on Article 21 of the Constitution to maintain their petitions under Article 226 of the Constitut ion. They referred to the following observations of this Court in the case of Ni labati Behera, where this Court held thus: (SCC p. 767 para 32) (cid:28)32. Advertising to the grant of relief to the heirs of a victim of a custodial death for the infraction or invasion of his rights guaranteed under Article 21 o f the Constitution, it is not always enough to relegate him to the ordinary reme dy of a civil suit to claim damages for the tortuous Act of the State as that re medy in Private Law indeed is available to the aggrieved party. The primary sour ce of the Public Law proceedings stems from the prerogative writs and the courts have, therefore, to evolve new tools to give relief in Public Law by moulding i t according to the situation with a view to preserve and protect the Rule of Law \. Further the Court goes to hold in para 33 of the judgment: (SCC p. 768) (cid:28) 33. ble in civil law limits the role of the courts too much as protector and guarant or of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law a The old doctrine of only relegating the aggrieved to the remedies availa re for the people and expected to respond to their aspirations. It was thus submitted that Respondents right to life under Article 21 of the Con stitution had been violated because of the negligence of the public authorities and that it was a well settled legal proposition that High Court under Article 2 26 or the Constitution had the power to award compensation in case of violation of fundamental rights by State’s instrumentality or servants and the award of co mpensation in proceedings for enforcement of fundamental rights under Articles 2 26 and 32 of the Constitution is remedy available in Public Law. Finally it was submitted that the Public Law proceedings serve a different purposes than the Pr ivate Law proceedings. The relief of monetary compensation, as exemplary damages , in proceedings under Article 226 by the High Court for infringement the indefe asible right guaranteed under Article 21 of the Constitution is a remedy availa ble in Public Law. Therefore, when the Court moulds the relief by granting compe nsation under Article 226 of the Constitution, it does so under the Public Law b y 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 righ ts of the citizens. It was, therefore, submitted by the Respondents that the jud gment of the High Court was right in law as compensation could be awarded under Article 226 for the infringement of fundamental rights of the citizens. 10. In view of the clear proposition of law laid by this Court in Sukamani Das ( 1999) 7 SCC 298 case when disputed question of fact arises and there is clear de nial of any tortuous liability remedy under Article 226 of the Constitution may not be proper. However, it cannot be understood as laying a law that in every ca se of tortuous liability recourse must be had to a suit. When there is negligenc e on the face of it and infringement of Article 21 is there it cannot be said th at there will be any bar to proceed under Article 226 of the Constitution. Right of life is one of the basic human rights guaranteed under Article 21 of the Con stitution. In U.P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey and Ors.(1999) 1 SCC 741, where one of us (Wadhwa, J.) was a party, this Court after examining various decisions of the courts on the power of the High C ourt under Article 226 of the Constitution observed that the language of Article 226 of the Constitution does not admit of any limitation on the powers of the H igh Court for the exercise of jurisdiction thereunder though by various decision s of this Court with varying and divergent views, it has been held that jurisdic tion under Article 226 can be exercised only when a body or authority, the decis ion of which is complained, was exercising its power in the discharge of public duty and that writ is a public law remedy. This Court then observed: (SCC pp. 75 8-59, para 27) (cid:28)It may not be necessary to examine any further the question if Article 226 make s a divide between public law and private law. Prima facie from the language of the Article 226 there does not appear to exist such a divide. To understand the explicit language of the Article it is not necessary for us to rely on the decis ion of English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person does not make any such diffe rence between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and ampli tude of the writs of habeas corpus, mandamus, prohibition, quo warranto and cert iorari. They are certainly founded on the English system of jurisprudence. Artic le 226 of the Constitution also speaks of directions and orders which can be iss ued to any person or authority including, in appropriate cases any Government. U nder Clause (1) of Article 367, unless the context otherwise requires, the Gener al Clauses Act, 1897, shall, subject to any adaptation and modifications that ma y be made therein under Article 372 apply for the interpretation of the Constitu tion as it applies for the interpretation of an Act of the Legislature of the Do minion of India. ’Person’ under Section 2(42)of the General Clauses Act shall in clude any company, or association or body of individuals, whether incorporated o r not. Constitution is not a statute. It is a fountainhead of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Co urts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instr umentality of the State, a company or a co-operative society or association or b ody of individuals whether incorporated or not, or even an individual. Right tha t is infringed may be under Part III of the Constitution or any other right whic h the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court has laid down certain guidelines and self-imposed limitations have been put there s ubject to which High Courts would exercise jurisdiction, but those guidelines ca nnot be mandatory in all circumstances. High Court does not interfere when an eq ually efficacious alternative remedy is available or when there is established p rocedure to remedy a wrong or enforce a right. A party may not be allowed to by- pass the normal channel of civil and criminal litigation. High Court does not ac t like a proverbial ’bull in a china shop’ in the exercise of its jurisdiction u nder Article 226. (cid:29) In view of the above, view expressed by learned Single Judge based on fa 9. ctual finding in a report of the enquiry conducted by the District and Sessions Judge cannot be held to be erroneous. The report does not make out any case in f avour of the appellant. Unless the firing resorted to by the Police could be hel d to be uncalled for and unjustified or in violation of the rights of the appell ant, no direction to grant compensation was called for. In any case disputed cla im of the appellant cannot be adjudicated upon under summary jurisdiction under Article 226 of the Constitution.

11. The writ appeal will stand dismissed. It is, however, made clear that this order will not debar the State from giving any compensation ex gratia, if the State is so advised.