Madras High Court
M/S.Venkateswara I.T.I vs The Government Of Tamil Nadu on 29 August, 2008
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/08/2008 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.5822 of 2008 and M.P.(MD)No.6534 of 2005 M/s.Venkateswara I.T.I, Rep.by it Correspondent R.Ravi, GST Road, Thankkankulam Post, Madurai-625 006. ... Petitioner Vs. 1.The Government of Tamil Nadu, rep.by its Secretary, Home Department, Fort St.George, Chennai-600 009. 2.The Govt of Tamil Nadu, rep.by its Secretary, Transport Department, Fort St.George, Chennai-600 009.. 3.The Collector, Madurai District, Madurai. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Mandamus to direct the respondents herein to pay a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) as compensation to the petitioner Institute on account of the loss suffered by the petitioner Institute in the matter of Crime No.692 of 2000 relating to bus burning of the bus belonging to the petitioner institute on a representation by the petitioner management on 11.04.2002 and 16.11.2003 respectively. !For Petitioner ... Mr.G.Thilakavathi ^For Respondents ... Mr.K.A.Thirumalaiappan Addl.Govt.Pleader (Writs) ***** :ORDER
The petitioner is an Industrial Training Institute situated in the National Highway at Thanakkankulam. The petitioner institute was owning an "Ashok Leyland" Bus bearing with registration No.TN-28 X 8988.
2. The bus was driven by the institute driver by name V.Balasubramani. After finishing his trip around 5.30 p.m., the students of the ITI used to be taken in the same bus to Madurai. For the night, the bus used to be parked in an open space in front of the Institute. There was also a watchman for the institute by name Murugesan. On 20.09.2000, the bus was parked as usual in front of the Institute. Around 11.30 p.m, the watchman found a burnt smell emanating from the Bus and he saw some miscreants had set fire to the bus. On being alerted by the watchman, the Correspondent of the Institute (R.Ravi) came to the spot. By the time, all efforts made to call the concerned Police were not fruitful. Even Fire Services personnel, who were called, could not douse the fire. The estimated loss due to burning of the bus was around Rs.2,00,000/-. (Rupees Two Lakhs) Since the bus was insured only for third party claims, the petitioner could not make any claim for compensation on account of the loss to the bus.
3. On the morning of 21.09.2000, a criminal complaint was given to (W.1) Thirunagar Police Station regarding the burning of the bus by certain vandals. The said case was registered as Crime No.692 of 2000 under Section 147 and 436 IPC read with 3(1)(a) of the Tamil Nadu Public Properties Prevention of (Destruction & Loss) Act,1982 (TNPPPDL Act). It was stated in the complaint that the bus was set fire by persons belonging to the DMK Party who were protesting against the decision of their party high command. Therefore, there was a large scale violence in the Madurai City. As part of the arson and looting the bus belonging to the petitioner got damaged. Though a First Information Report (FIR) was registered by the Thirungar Police Station, but it has not progressed with any success for the reasons best known to the Police.
4. The petitioner in the absence of the Police effectively investigating the case and identifying the culprits and also in the absence of staking a claim for insurance amount due to the lack of coverage by a comprehensive policy sent representations to the District Collector and the State of Tamil Nadu dated 11.04.2002. It was followed by a reminder dated 16.11.2003.
5. It is seen from the typed set of papers filed along with the Writ Petition, those letters have been received by the appropriate authorities. Acknowledgments received from them have also been enclosed in the typed set. When the petitioner did not get any suitable reply, they have come forward to file the present Writ Petition seeking for a direction to the respondents to pay compensation of Rupees Two Lakhs on account of the loss suffered by the petitioner institute due to the burning of the bus.
6. The affidavit filed in support of the Writ Petition clearly sets out the circumstances under which the petitioner Institute had lost the transport bus belonging to it. In paragraph No.5 of the affidavit, it is averred as follows:-
"5.Under the said context I was constrained to register a complaint under the bona fide impressing that the complaint would be investigated. Even though First Information Report was registered in Crime No.692 of 2000 on the file of the Sub Inspector of Police, Thirunagar Police Station, Madurai without further investigation and enquiry even after having arrested the accused K.Sundarapandian and M.Arumugam and also having brought on record that the damage caused to the vehicle owned by the institute was only on account of destructive activity undertaken by the members of the political party no action has been initiated on account of which the institute was made to suffer the loss of the vehicle, bearing Regn.No.TN 28 X 8988 and the institute was deprived of its transportation vehicle and also cause innumerable hardship to the student who were undergoing education at our institute."
7. The Writ Petition was admitted on 05.07.2005 and notice was ordered to the respondents. The respondents were duly served by this Court on 22.08.2005 and on behalf of the Government, the Assistant Government Pleader (writs) had also entered appearance.
8. In spite of three years have elapsed, there has been no response from the respondents. The respondents have not taken care to file any counter affidavit disputing averments made by the petitioner. Also no worthwhile explanation have been furnished to countenance the claim made by the petitioner.
9. The fact that the transport bus belonging to the petitioner institute was burnt by a violent mob cannot be denied. A prominent Tamil Daily news paper "Dinamani" dated 21.09.2000 published a news item along with a photograph to show the condition of the burnt bus. It is seen from the newspaper report that during the night of 20.09.2000, the police was also patrolling that area. At that time a mob came near the bus threw a petrol bomb and escaped from the vicinity. The watchman along with the hostel students attempted to douse the fire. By that time, the bus was completely burnt. The news report also stated that that there was no State Transport Bus operated in the City of Madurai on that day. It was further reported that the incidents had taken place because of an official statement made by the DMK Party Headquarters that members of the DMK party should not have any contact with one M.K.Alagiri. Due to the violent incidents which started on the night of 20.09.2000, the entire transport system got paralysed. Only in the morning of 21.09.2000 from 7.00 am the condition became normal that too on a gradual basis. Even the buses which were operated from the bus stands at Pazhanganatham, Arappalayam and Mattuthavani, Central and Collectorate were sent back to the depots and the bus stands became completely deserted.
10. In the absence of any denial of the averments made by the petitioner in his affidavit and by the positive assertion made by the petitioner that the Bus belonged to the institute was completely burnt by a marauding gangs despite the police presence, the allegations made in the affidavit must be taken to be proved beyond doubt.
11. During such acts of mob violence, certainly the State cannot plead any helplessness or inability. In spite of the fact that a criminal case was registered under various provisions of IPC as well as under the TNPPPDL Act, the police have not taken any steps to nab the culprits for the reasons best known to them.
12. In any event, even though the TNPPPDL Act provides for recovering loss from the accused and compensating the affected persons, the Act has now been made unworkable. Under the circumstances, the citizens of this country cannot be left in the lurch without there being any relief granted by the State. The fundamental rights of the citizens cannot be trampled at the instance of any one, much more by a mob owing allegiance to any private person. The constitutional right guaranteed to the citizens to protect their life and property cannot be whittled down by such acts of violence. If such acts found uncontrolled by the State, then the Citizens of this Country are not helpless and the long of arm of Article 226 of the Constitution vesting powers on this Court will be certainly available to their rescue.
13. In this context, it is necessary to refer to the Full Bench judgment of this Court in P.P.M.Thangaiah Nadar Firm, rep.by its Partner T.P.Prakasam, Tuticorin and Others Vs. Government of Tamil Nadu rep,by its Chief Secretary, Chennai and others reported in (2007) 2 MLJ 685. The Full Bench presided by P.K.Misra.J, after referring to various cases of the Supreme Court in paragraph 38, held as follows:-
"38.Now, the inevitable end of the journey or may be beginning of another. In view of the various decisions noticed by us and many other decisions referred to in such decisions, the following conclusions can be reached. The State is not necessarily liable in every case where there is loss of life or damage to the property during rioting. Where, however, it is established that the officers of the State ordained with duty of maintaining law and order have failed to protect the life, liberty and property of person and such failure amounts to dereliction of duty, the State would be liable to pay compensation to the victim. Such liability can be enforced through Public Law remedy or Common Law remedy. Where, necessary facts to establish culpable negligence on the part of the officials are available, the High Court under Article 226 can issue appropriate direction. Where, however, the main aspect relating to culpable negligence of the officer is seriously disputed, filing of suit may be more appropriate remedy. No hard and fast rule can be laid down on these aspects and obviously the availability of remedy under Article 226 would depend upon the facts and circumstances of each case. Compensation for loss to the property can also be claimed under Article 226 and merely because right to property has been deleted from the Chapter of Fundamental Rights and has been recognised as a Constitutional Right, would not disentitle the High Court to examine that question in any appropriate case."
14. Subsequently a Division Bench of this Court in Coimbatore Bar Association and another Vs. State of tun and another reported in 2008 Writ L.R.662 also dealt with a situation where the member of the legal profession was assaulted by the Police personnel that too in a public place. The question came up for consideration was whether the State was liable to compensate such injury to the members of the bar who was a victim of State violence. In paragraph No.9 of the said decision, the Division Bench presided by A.P.Shah, C.J, had observed as follows:-
"9.In the instant case, it is an undeniable fact that as a result of the assault, the second petitioner has sustained multiple injuries bruises, abrasions and contusions and his evidence implicating respondents 5,6 and 7 is found to be acceptable. Though the incident was triggered off by the second petitioner dashing against the fifth respondent due to his low vision, there is no jurisdiction for the behaviour of the police personnel in having beaten him mercilessly, especially respondents 5,6 and 7. The human rights of the second petitioner were violated with impunity and he is entitled to be suitably and adequately compensated. The power of the Court to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of the Supreme Court in Rudal Sah Vs. State of Bihar (AIR 1983 Supreme Court 1086); Sebestian M.Hongray Vs. Union of India, (AIR 1984 Supreme Court 1026); Bhim Singh Vs.State of Jammu & Kashmir (AIR 1986 Supreme Court 494); Saheli, A Women's Resources Centre Vs. Commissioner of Police, Delhi Police Headquarters (AIR 1990 Supreme Court 513) and State of Maharashtra Vs. Ravikant S.Patil (1991) 2 SCC 373). In Smt.Nilabati Behera alias Lalita Behera Vs. State of Orissa and others (AIR 1993 Supreme Court 1960), the Supreme Court after examination of the earlier cases, clearly laid down that the award of compensation in a proceeding under Article 32 of the Constitution by the Supreme Court or under Article 226 by the High Court is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. The same view was reiterated in Consumer Education and Research Centre and others Vs Union of India and others (AIR 1995 Supreme Court 922). In a recent judgment in Chariman Railway Board & Others - Vs- Mrs.Chandrima Das and Others (2002) 2 SCC 465, the Supreme Court observed where public functionaries are involved and the matter relates to violation of Fundamental Rights or the enforcement of public duties, the remedy would still be available under the public law notwithstanding that a suit could be filed for damages under private law. In our opinion, the second petitioner has made a strong prima facie case for award of compensation and having regard to the inhuman way in which the second petitioner was mercilessly beaten, we feel that the ends of justice would be met, if we award Rs.50,000/-
as compensation to the second petitioner. The second petitioner has incurred an expenditure of more than a sum of Rs.1,00,000/-.(Rupees One lakh only) for his treatment and has also suffered mental agony. But on behalf of the respondents 5 to 7, the learned Government Pleader pleaded for some indulgence. Therefore, we fix the compensation at a sum of Rs.50,000/- taking into account the situation of the parties. It is needless to state that the State would be entitled to recover this amount of compensation from respondents 5 to 7, who were found to be involved in the assault on the second petitioner."
15. In both the cases the Court dealt with claims, after a Commission of Enquiry or a Court appointed Commissioner went into the factual findings on the issue and also ascertained the loss sustained by the affected persons. The Full Bench of this Court had held that notwithstanding the recommendations of a Commission of Enquiry, this Court has inherent powers to enhance the compensation. In the Coimbatore Bar Association case, the Court appointed Commissioner found that the allegation made by the Advocates against the police personnel was found to be true and therefore, this Court ordered compensation.
16. However, yet another Division Bench presided over by P.K.Misra.J, of this Court in K.Venkataraman and another Vs. State of Tamil Nadu reported in (2007) 2 MLJ 804 has also held that when police remains a spectator against mob violence perpetrated against a member of the legal profession and when his house, library and Car were burnt and damaged right due to the passive role of the police personnel, this Court can order payment of compensation in a petition filed under Article 226 of the Constitution of India. In paragraph Nos.17 to 20, it was observed as follows:-
"17.Learned counsel for the respondents submitted that the damage was caused by a mob and therefore compensation cannot be claimed from the State Government or the Police as there were not directly responsible. So far as this aspect is concerned, the matter is no longer res integra so far as Madras High Court is concerned in view of the decision of the Full Bench in P.P.M.Thangaigh Nadar Firm, rep.by its partner T.P.Prakasam, No.154, New Colony, Tuticorin and others V. Government of Tamil Nadu rep.by its Chief Secretary Fort St.George, Chennai 9 and Others 2006 (5) CTC 97; (2007) 2 MLJ 685."
In such decision it has been observed at P.704 of MLJ;
"38.Now, the inevitable end of the journey or may be beginning of another. In view of the various decisions noticed by us and many other decisions referred to in such decisions, the following conclusions can be reached. The State is not necessarily liable in every case where there is loss of life or damage to the property during rioting. Where, however, it is established that the officers of the State ordained with duty of maintaining law and order have failed to protect the life, liberty and property of person and such failure amounts to dereliction of duty, the State would be liable to pay compensation to the victim. Such liability can be enforced through Public Law remedy or Common Law remedy. Where, necessary facts to established culpable negligence on the part of the officials are available, the High Court under Article 226 can issue appropriate direction. Where, however, the main aspect relating to culpable negligence of the officer is seriously disputed, filing of suit may be more appropriate remedy. No hard and fast rule can be laid down on these aspects and obviously the availability of remedy under Article 226 would depend upon the facts and circumstances of each case. Compensation for loss to the property can also be claimed under Article 226 and merely because right to property has been deleted from the Chapter of Fundamental Rights and has been recognised as a Constitutional Right, would not disentitle the High Court to examine that question in any appropriate case."
"18. In view of analysis of the materials on record, the inevitable conclusion is that the Police did not bother to take adequate steps to prevent mischief to the properties of the petitioners. Whether such inaction was prompted by the animosity of the local Police against petitioner No.1 or otherwise is not very much materials. The fact remains that adequate steps were not taken before and during the incident. In our opinion, therefore, the State can be held responsible and directed to pay compensation." "19. It was faintly argued that the duty to maintain law and order is a part of the sovereign function of the State and since this incident is connected with the question of maintenance of law and order, the State should be considered immune from being proceeded against in view of the provisions contained in Article 300-A of the Constitution of India." "20. We do not think such a contention is available to be raised by the respondents as the damage caused is not on account of any positive action taken by the State while maintaining law and order. For example, during rioting the Police resorts to take lathi-charge or such other measures, a victim possibly cannot claim damages against the State as such damage is occasioned on account of exercise of sovereign function, that is to say, maintenance of law and order. The question here is not whether the damage was caused while the Police was trying to maintain the law and order. On the other hand, the damage was caused on account of culpable inaction on the part of the Police in taking adequate measures. According to us, the doctrine of exercise of sovereign power is not applicable."
17. In the present case, despite three years have elapsed since the filing of the Writ Petition and the State had become so insensitive to the claim made by a citizen of this country, there is no other option except to allow the Writ Petition. It does not require any further finding of fact, because the bus which was parked in its usual halting place was burnt by a violent mob, went unchecked by the the State machinery. As such, the petitioner is certainly entitled for the compensation for the apathy and indifference shown by the State in not protecting the sacred rights of the citizens to have their life and liberty as guaranteed by the Constitution of India.
18.Since the factual basis of the claim was not disputed, this Court is of the view that the respondents must be directed to pay a sum of Rupees Two Lakhs to the petitioner within a period of eight weeks from the date of the receipt of a copy of this order.
19. In view of the above, this Writ Petition stands allowed. However, there will be no order as to costs. Consequently, connected M.P. is closed. No costs.
ssm To
1.The Secretary, The Government of Tamil Nadu, Home Department, Fort St.George, Chennai-600 009.
2.The Secretary, The Govt of Tamil Nadu, Transport Department, Fort St.George, Chennai-600 009..
3.The Collector, Madurai District, Madurai.