Gujarat High Court
Mehboobmiya vs State on 16 March, 1996
Author: Jayant Patel
Bench: Jayant Patel
LPA/473/1996 60/ 67 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 473 of 1996 In FIRST APPEAL No. 5952 of 1995 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MEHBOOBMIYA U RATHOD & 5 - Appellants Versus STATE OF GUJARAT - Respondent ========================================================= Appearance : MR AJ MEMON for Appellants : 1, 1.2.1,1.2.2 - 6. MR MG NANAVATI AGP for Respondent: 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date :07/03/2011 CAV JUDGMENT
(Per : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) The appellants-original plaintiffs (being legal heirs of deceased husband of original plaintiff no. 3), who filed Civil Suit being Civil Suit No. 3605 of 1986 against the State of Gujarat for damages in torts for an alleged act of negligent firing resulting into the death of the husband of third plaintiff and appellant in First Appeal No. 5952 of 1995 arising out of the suit being Civil Suit No. 3605 of 1986 have preferred this Letters Patent Appeal challenging the judgment and order dated 16th March, 1996 passed in First Appeal No. 5952 of 1995, whereunder, the learned Single Judge of this Court (Coram: Y.B. Bhatt, J.) dismissed the appeal preferred by the plaintiffs appellants under Section 96 of the Code of Civil Procedure challenging the judgment and order passed by the City Civil Court dated 10th July, 1995 dismissing the suit for damages filed against the State of Gujarat for the loss occurred to the family members of the deceased on account of his death in firing during the year 1986.
Facts in brief, as could be culled out from the plaint, judgment of the suit and judgment in First Appeal, deserve to be set out as under in order or appreciate the real challenge to the judgment impugned in the present Letters Patent Appeal.
On a fateful day of 20.6.1985, when a 'Rath Yatra' i.e. chariot procession of Deity Jagannath was on it's way to Delhi Chakla via Prem Darwaja on Jorden Road, the deceased had gone on roof top or terrace of his neighbour's building which was adjacent to his own house situated 52 to 60 feet away on the western side of the Jordan Road for collecting quilt, which was put up for drying, at that time, the army opened fire recklessly and negligently and deceased received bullet injury in the said firing and as a result thereof, succumbed to his injury and died. The army without giving any warning and without any justifiable reason and without making any appeal for maintaining peace, arbitrarily opened fire. The way the firing took place, indicated that army in absolutely erratic manner with an intention to kill the resident of the surrounding did the firing as it is established from the action of military. It is further averred in the plaint that on 20.6.1985, curfew was imposed within the walled area of city of Ahmedabad and on that day, there was no permission given by the government authority for taking out the chariot procession yet the persons connected with chariot procession, had taken the procession without permission and way it had begun from temple of Jagannath, it appeared that procession was not likely to complete its journey peacefully. The Rath Yatra had proceeded without the permission of the authority and instead of taking it from outside Prem Darwaja, the procession entered into the Walled city area through Prem Darwaja under Army observation and knowing well that some miscreants had mixed themselves in the procession and it was not possible for procession to continue peacefully inside the Prem Darwaja, upto Jordan Road, the Army indirectly and intentionally supported the miscreants in the procession. As it could be seen from the judgment of learned Single Judge, it was alleged that army with an intention of obtaining religious vengeance, opened fire in Muslim area and as a result thereof the husband of the third plaintiff died in the Army firing. Hence the dependent and heirs filed Civil Suit for recovering damages against the State of Gujarat being Civil Suit No. 5952 of 1995. The suit was preferred only against the State of Gujarat, the sole defendant, who filed its written statement interalia contending that the suit itself was not maintainable in eye of law. It was contended in the written statement that on 20.6.1985, the situation in the city was disturbed and therefore, curfew was imposed in the city, as the Rath Yatra procession i.e. chariot procession was to be taken out on that day, on its regular and usual route,and for maintaining law and order, especially in the Jordan area, as it was quite known for its being sensitive area. As could be seen from the judgment of learned Single Judge, the Executive Magistrate and army were posted for security reason and was being attended by an officer of the army (being rank of Captain). As it is averred in the written statement by the sole defendant State of Gujarat, that the procession was passing on Jordan Road at about 3-15 PM and when it was close to 'Sajjan Jamadar's Mohalla', people started pelting stones on the Rath Yatra and also on the Army from said 'Sajjan Jamadar Mohalla'. Thereupon the army warned the public to disperse, but the stone pelting continued. On account of stone pelting, which persisted, the participants of the Rath Yatra were injured and it was assessed that the law and order situation had gone out of control. Therefore, under the supervision and instructions of Mr. Rathod, the Executive Magistrate who was present in person and the authority on the spot, minimum necessary physical force was used with an aim to disperse the crowd but as it failed, ultimately, army had to open fire. It is not in dispute that husband of the third plaintiff received bullet injuries in the said firing and ultimately, he died. The defendant in its written statement stated that firing was absolutely justified. The decision to open fire was not taken in a careless or irresponsible manner and that the firing actually not aimed in a negligent, careless or irresponsible manner. It was further contended that despite there being curfew in the area and firing was ordered the husband of the third plaintiff had gone on roof top or terrace when he received injury. It was further submitted that state government has however, granted ex-gratia relief of Rs.20.000/- to the legal heirs of the deceased and that fact has not been disputed. The trial Court recorded its findings that deceased in fact died on the said date on account of firing but the plaintiffs failed in establishing that there was any negligence in opening fire in the facts and circumstances of the case. The trial Court also held that plaintiffs failed in establishing the quantum of damage. The trial Court further recorded that the State, sole defendant in the suit justified that under the circumstances of the case, firing was required to be opened for maintaining law and order. The trial Court, therefore, dismissed the suit of the plaintiffs for damage for negligence against the state.
Being aggrieved and dissatisfied with this judgment and decree of the trial Court, the appellants preferred First Appeal being First Appeal No. 5952 of 1995 under Section 96 of the Code of Civil Procedure, wherein also, the learned Single Judge of this Court, after recording his agreement with the reasoning and appreciation of evidence by the trial Court and it's conclusion there on, observed that the dismissal of the suit was also justified as no case was made out for interference with the order passed by the trial Court. The learned Single Judge has in para-8, 9 and 10, discussed the relevant evidences and held that order of trial Court cannot be said to be in any manner perverse so as to call for any interference. The learned Single Judge, thereafter, in para-11 and 12 of the judgment, held that the plaintiffs failed in establishing their case against the defendant when the plaintiffs filed suit for uh-liquidated damage for negligence in tort, it was duty cast upon the plaintiff to prove that the defendant was guilty of negligence and/or guilty of non-performance of its minimum duty to take care. In that context, the evidences were considered and on that basis, the learned Single Judge came to the conclusion that impugned judgment and decree were eminently sustainable and there was no justification for interference on facts and law and hence, the appeal was dismissed summarily vide judgment and order dated 16.3.1996, which has been assailed in the present Letters Patent Appeal by the appellants.
Learned advocate for the appellants submitted that the defendant State in original suit did not choose to examine any witness. State has remained satisfied on filing the written statement only. The plaintiffs examined witnesses and based thereupon, it can well be said that the plaintiffs proved their case and hence the judgment and decree of the trial Court as well as that of learned Single Judge deserved to be quashed and set aside. Learned advocate for the appellants further submitted that the version of the plaintiffs is fully supported by the witnesses and therefore, their evidence could not have been brushed aside by the trial Court. The learned counsel for the appellants relying upon the decision in case Vidhyadhar Vs. Mankikrao and another, reported in AIR 1999 SC 1441, submitted that where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct. In the instant case, learned counsel for the appellants submitted that the State has not examined any witnesses in support of their version and hence their version needs to be discarded.
Learned advocate for the appellants further submitted that the trial Court has framed issue no. 4 as under:
Whether the defendant State proves that the action of opening fire on the part of the Police was just and proper in the circumstances of the case to maintain law and order?
and the trial Court has answered the said issue in affirmative. The learned counsel for the appellants emphatically reiterate time and again that defendant did not examine any witness and yet the trial Court recorded findings on the aforesaid issue in affirmative. The trial Court had referred to the deposition of the plaintiffs witness Khatunbibi and another witness Shaikh Alimiya, which do not suggest any lack of truthfulness therein. The counsel for the plaintiffs submitted that said version if tested on the strength of legality, would appear correct in nature and when the plaintiff no.3 wife victim deposed that police fired pointing the the gun and when this deposition is not denied or disputed, then, it would not only prove the negligence but rather culpable negligence amounting to criminal offence on the part of man who fired the gun.
Learned advocate for the appellants further submitted that for justifying police firing, the situation should be so grave and grim that there was imminent danger to life and property and without resorting to firing it would not have been saved. In other words non-opening of the fire would have resulted into the policeman being killed, meaning thereby, police firing is required to be resorted to only as self defense. The circumstances on the record clearly go to show that when the firing on the part of the police was not justified. The counsel for the appellants further submitted that deceased had gone on the terrace of the house, that was situated in a very interior side of Jordan road and surrounded by high rise buildings and hence the question of violation of curfew does not arise at all. The advocate for the appellants further submitted that negligence in law is not a question of fact but it is an inference to be drawn from proved facts. The negligence is not an absolute term but is relative one and hence, it was submitted that looking to the deposition of Smt. Khatunbibi, it would become clear that there was no provocation whatsoever for opening fire nor was their any warning sounded before opening fire. The precautionary measures were not even taken before opening firing.
The learned advocate for the appellants thereafter submitted that decision of the learned Single Judge was nothing but making out a new case and relying upon a decision in case of Union of India Vs. E.I.D. Parry (India) Ltd., reported in AIR 2000 SC 831, submitted that the question which did not form part of the pleadings or in respect of which the parties were not at variance and which may not be the subject matter of any issue, could not be decided by the Court. In the instant case, the Court itself could not have raised any issue so as to make out a new case against the party. It was submitted that the case put up in cross examination has not only no basis in written statement but it was contrary to the case pleaded in written statement and thus, it can be said to be a got up case on behalf of the respondent.
Learned counsel for the appellants, while answering to the preliminary objection against the maintainability of this Letters Patent Appeal, submitted that Letters Patent Appeal could not have been resisted on account of Section 100A of Code of Civil Procedure, because Section 100A came into force with effect from 1.7.2002 and present Letters Patent Appeal was filed in the year 1996. Hence, as per the decision of the Apex court reported in AIR 2007 SC 633, the objection would not survive. At this stage, it is required to be recorded that though the plaintiffs' counsel has taken this ground and answered it in a written statement also, no such ground appears to have been taken by the State in its written submissions placed on record. Therefore, submission on maintainability of the Letters Patent Appeal need not be elaborately dwelt upon at this stage.
Learned AGP appearing for the respondent has after summarizing the contentions of the plaintiffs and evidence led by the defendant in its written statement, contended that reading of plaint reveals that army encouraged the miscreants to seek communal revenge and afterwards opened fire without any justifiable reason and in an arbitrary and absolutely reckless manner so as to target a particular community people and thus, the person, who killed the husband of the third plaintiff committed a criminal act. The counsel for the State submitted that the plaint nowhere contains averment that army man opened fire, in discharge of his duty or under colour of his office, with a view to control the rioting mob and prevent worsening of law and order situation. Learned AGP further submitted that the plaint also did not contain any averment and pleading that the military opened fire under instructions of the officers of the State Government. The plaintiffs only put up and pleaded that military personnel were acting as persons of the State Government and, therefore, State Government is said to be vicariously liable for the act of killing the plaintiffs father.
Learned AGP for the respondent further submitted, as could be seen from the written submission, that plaintiffs could not have pleaded the case, contrary to their pleadings. Learned AGP while inviting this court's attention to the paragraphs of the plaint indicated that it was a case pleaded in the plaint and evidence led by the plaintiff that curfew was imposed in the area and that all the resident of the locality were inside their house and the husband of plaintiff no. 3 had gone to the roof top for collecting the mattress. There was no pelting of stones on the police from their locality. The military had not given any prior warning before opening fire. The military aimed at persons and fired,resulted into killing of husband of plaintiff no. 3.
Learned AGP for the respondent contended that entire case suffers from non-joinder of necessary party and hence the suit, must fail. Relying upon provisions of Order 1 Rule 9 of the Code of Civil Procedure, it was contended on behalf of learned AGP for the respondent that the allegations in the plaint and the evidence led in support of the pleadings are against the military. The allegations are made that the army without any rhyme or reason and without following any procedure for opening fire, arbitrarily and indiscriminately opened fire and not that they did so acting in discharge of their official duty or purported discharge of their duty. As could be seen from the written submission of the counsel for the State, the averments in the complaint indicate that the army personnel were acting of their own volition and not in accordance with law. Learned AGP further relying upon the facts and evidence of the plaintiffs, contended that, plaintiffs having pleaded such a case, it was absolutely necessary for them to join person responsible for opening fire towards the husband of plaintiff no. 3 and killing him, as a party defendant in the suit. It is required to be noted at this stage that despite plaintiffs pleaded the case, army man, who actually opened fire and whose bullet hit the husband of the plaintiff no. 3 or any other responsible of the military stationed in the area has not been made a party defendant. In absence of such a party, no adverse finding could be recorded against it and the State cannot be made responsible for the act of such party. As the plaintiffs have failed in joining a proper and necessary party, the suit deserves to be rejected as held by the learned Single Judge.
Without prejudice to the aforesaid contention, learned AGP further submitted that, State did file written statement contending that curfew was imposed in the area and military was posted to maintain law and order. During the chariot procession, there was pelting of stones from the direction of 'Jamadar Mohalla' on the military and the law and order situation had so worsened that to control the situation and for maintaining law and order the military, after taking approval of the Executive Magistrate, who was present on the spot, had to open fire. It was further averred that military fired in all only five rounds of bullets and out of which, one bullet hit husband of plaintiff no. 3, which resulted into his death. Learned AGP for the State thereafter submitted that the averments made in the written statement cannot be treated to be an evidence unless it is in the nature of admission. In the instant case, the averments made in the written statement, could be said to be admission on the part of the defendant State, that husband of plaintiff no. 3 died in military firing, which was opened after due orders from the Executive Magistrate as it was warranted on account of the prevailing situation at the movement. Learned AGP for the State relying upon the decision in case of Dudh Nath Pandey Vs. Suresh Chandra Bhatttasali reported in (1986) 3 SCC 360, submitted that the written statement is not a pleading in confession and in avoidance whereof, a defendant is bound by the confession and compelled to prove the avoidance, if used as evidence against a defendant, the whole statement must be taken together. In other words, if a written statement contains an admission of certain facts which are favourable to the plaintiff but contains a denial of other facts favourable to him or an assertion of other facts which are unfavourable, the plaintiff must, if he wants to avail himself of the admission, take not only the first set of facts as truly stated, but also the second set of facts. If the plaintiff is not prepared to take both, he would have to prove his case on his the strength of his own pleadings. In support of his submission, he relied on the decision of the Apex Court in case of Fateh Chand Murlidhar Vs. Juggilal Kamlapat reported in AIR 1955 Cal.465.
Learned AGP has submitted that if the written statement and the admission contained therein are accepted as a whole then the State has clearly made out a case that the firing was done because there was pelting of stones on the police and the situation required opening of fire and that it was done after taking approval of the concerned Executive Magistrate present on the spot. It is further submitted by learned AGP that under the circumstances, the said act can neither be said to be negligent nor can it be said unnecessary so as to hold the State liable. This submission was canvassed without prejudice to the contention of the State that in view of the said averments in the written statement, it was not necessary for the state to lead evidence in support of it's version regarding necessity for opening the firing.
Learned AGP for the respondent State thereafter contended that the factum of death of plaintiff no.3's husband on account of firing by military, is based upon the admission of the State in its written statement only or else, there is nothing on record to establish that husband of plaintiff no. 3 died because of the negligence in firing by the military. Thus, if the written statement filed by the State is ignored, than, plaintiffs had failed in making out a case of negligence on the part of the military and that while doing so, the military was acting in discharge of duty. Learned AGP further submitted that in fact, on the contrary, the plaintiffs pleading and evidence is that the persons who fired were acting of their own volition and in complete disregard of law and that the State made no attempt to stop them from acting in such manner. In that view of the matter, the State cannot be held vicariously liable for the individual act of the army man.
Learned AGP thereafter elaborately made submissions on the doctrine of sovereign immunity and State act. Learned AGP submitted that it be assumed for the sake of argument that evidence led by the plaintiff is believable, than also, it cannot be said that the State of Gujarat can be held liable for the damages. It was submitted that to hold the State vicariously liable for the acts of its servants, it is necessary for the plaintiffs to establish that the death was caused because of negligence of an officer of the State acting in discharge of his official duty or under colour of his office. Only after it is so established, there can be a question of State being vicariously liable may arise.
Learned AGP further submitted that the act, which gave rise to a claim for damages, if committed by an employee of the State during the course of his employment, and if employment belongs to a category which can claim the special characteristic of sovereign power, the claim cannot be sustained. There would be no tortuous liability of the State for an act performed by its servant in discharge of a sovereign function. The Apex Court has held in many judgments that the functions such as making of laws, administration of justice, maintenance of law and order and repression of crime, carrying on of war, making of treaties of peace and other consequential functions, etc. are among the primary and inalienable functions of a constitutional government, and the State can claim immunity if any damage is done to anybody while discharging such functions.
Learned AGP for the respondent further submitted that tortuous act of the servant of a State if it infringes fundamental rights of any citizen than State cannot claim any immunity from being liable to indemnify the aggrieved. The fundamental rights to life and liberty if is violated, the Court grant damages and compensation to that person. But such liability is fastened upon State on account of provisions of Constitution of India and that liability is not hedged by any limitations including the doctrine of 'sovereign immunity'. In the instant case, the plaintiffs have not involved powers of the court under Article 226 of the Constitution alleging violation of any fundamental right but has on the contrary, filed a suit in private law complaining of tort and seeking compensation on account of vicarious liability of State for the alleged negligent act of its servant. Learned AGP submitted that defence of doctrine of sovereign immunity would be available to the State, both in law and facts. In support of this submission, learned AGP relied on the following decisions (i) Nilabati Behera Vs. State of Orissa, reported in (1993) 2 SCC 746, (ii) N. Nagendra Rao & Co. Vs. State of A.P., reported in (1994) 6 SCC 205,
(iii) Common Cause Vs. Union of India, reported in (1999) 6 SCC 667.
This Court has heard learned counsels for the parties, perused the judgment and order impugned. Few indisputable aspects emerging therefrom need to be enumerated as under viz.:
The plaintiffs have filed Civil Suit under Section 9 of the Code of Civil Procedure against State, wherein, they have indicated in para-4 the cause of action for filing the suit that as on 20.6.1985, the army personnel opened reckless and indiscriminate firing with an intention to kill the resident of the area and when on 20.6.1985, there was a curfew imposed in the area, did not stop the chariot procession and in not stopping said chariot procession, when it was going towards Delhi Chakla on Jorden Road and when it is known that there were miscreants in the crowd, by making no arrangement of maintaining law and order, military acting in its reckless act, and intentionally fired at Muslim crowd on their day of Id festival and as a result thereof, the deceased died and they issued notice on 28.11.1985 for damages but no answer was given. Hence, cause of action as said to have been arisen.
It is also required to be noted at this stage that damage sustained was claimed to be Rs.1,10,00/-, out of which, Rs.20,000/- had been received by the heirs and legal representatives of the deceased as an ex-gratia payment and suit was filed for recovering Rs.90,000/- from the defendant State.
The plaintiffs have made prayer that on account of demise of Gulam Rasul Rathod, the guardian and husband of plaintiff no. 3, they have sustained damage to the tune of Rs.1,10,000/- for which, kindly declare that the State is responsible and after deducting Rs.20,000/-, which the State has given to them as an ex-gratia payment, ordered payment of Rs.90,000/- + 18% interest thereon and costs of the suit.
The plaintiffs have made averments in the plaint that on 20.6.1985, deceased Gulam Rasul Rathod aged: 29 years, at about 3-30 PM when the chariot procession was passing on the Jordan Road, Delhi Chakla, had gone on the roof top of the adjoining building, for collecting his quilt, which was situated 50 to 60 ft away from the road, became victim of the uncontrolled firing by military., which had opened fire without any warning and without any justifiable reason.
The plaintiffs have also claimed that the reckless and discriminate firing by the military was with an intention of killing the resident in the surrounding area.
It is also claimed in the memo of plaint that if the army personnel had attempted to stop the chariot procession, then, such incident would not have happened.
The plaintiff no. 3 Khatunbibi is examined. She deposed in her deposition that her husband had gone on a roof of an adjoining building, where the quilts were lying for drying in terrace and at that time, the police had come and open firing. She stated that at that time, she was inside her residence. She had gone upstairs and seen that her husband had received bullet injury and he was bleeding and therefore, she fainted. After regaining consciousness she came to know that her husband was taken to V.S. Hospital where he died. She has further deposed in her deposition that her house is adjacent to the building of Saiyed Khilafat Ali and her house is only one storied building and the area, wherein, she resides is known as Sajjan Jamadar Maholla . She has further deposed that one floor means ground floor and roof. She had also clarified that from her roof top, Jordan Road is not visible.
A suggestion has been put by the defence, which plaintiff no. 3 declined in her cross-examination that it is not correct that any public warning was given before firing was open. She has stated that all the persons were in their respective houses.
There was a suggestion made by the defense in cross-examination that her husband had not committed any breach of curfew and gone on roof of building. She has stated in the cross-examination that Sajjan Jamadar Mohalla was also under the curfew. The quilt lying on the roof top were washed and put up for being dried up. She said that the roof top of Saiyed Khilafat Ali has European tiles at roof. She had admitted that her husband died on the roof of Khilafat Ali. She has also admitted that out of seven houses situated on the Jordan Road, two houses were of Hindus.
She had said that she had not gone to roof to see. The police was in green dress. She had seen the police and the police had fired bullet by specific aim. She had not seen the bullet hitting her husband. She has stated that she had not seen any person in simple dress. She has stated that she was not aware about the police had made any panchnama or complaint or not?. She has also stated that in firing, one boy had received bullet injury in his leg. She had denied the suggestion that there was stone pelting on the procession to stop the procession. She had also denied the suggestion that her husband was pelting stone from the roof top and during that time, he received bullet injury. She had also denied the suggestion that there was any warning given on public address system.
The written statement is filed by the State, wherein, the State has clearly averred that on account of disturbed situation and likelihood of worsening the same, curfew was imposed. The State has further averred in the written statement that on 20.6.1985, Rath Yatra i.e. chariot procession had taken out on the same day on its usual route and therefore, at every place, the government had made arrangement of security. It is further averred in the written statement that Jordan Road area of Ahmedabad is always very very sensitive area and therefore, on that road, arrangement of deputing military personnel was made and along with military platoon, its Captain and one Executive Magistrate were present.
At about 3-15 PM when the procession proceeded towards Delhi Chakla and was nearing Sajjan Jamadar Mohalla, it received heavy stone pelting. The military and participants of the process were targeted in stone pelting coming from Saiyad Jamadar Mohalla. Therefore, warnings were given for disbursing the crowd but no one had disbursed and as the situation so worsened as to compel the Executive Magistrate Shri Rathod to give order for firing and bullet hit Umedmiya Rathod, who died as a result thereof.
The State has pleaded firing to be an action of sovereign and has pleaded for immunity for the liability under the suit.
The State has in written statement, in para-5 admitted that procession was taken out, though no permission was granted looking to the situation. The situation was such as it was not possible for the government to thwart the chariot procession. Therefore, at all the places, wherefrom, procession was likely to pass, the appropriate security arrangements were made. It is also claimed in para-5 that near Prem Darwaja, Nr. Jordan Road, till Tambu Choki, is the area occupied by Muslim residents and chariot procession was likely to pass through that area and looking to the disturbed situation in that area, army personnel were deputed on that day. When chariot procession was proceeding near that Sajjan Jamadar Mohalla, heavy stone pelting was received therefrom and hence after warning of the Executive Magistrate, when situation went out of control firing was resorted to only after receiving orders from the Executive Magistrate. Only five rounds were fired.
In paragraph-7 of the written statement, it is submitted that despite the curfew, the deceased had gone on the roof top and he received injury, resulted into death and there was no negligence on any one's part in this incident.
Against aforesaid backdrop of clearly indisputable facts, now let us examine the rival contentions of the parties. The maintainability of the Letters Patent Appeal, in view of provisions of Section 100A of the Code of Civil Procedure is not required to detain this Court in any manner in view of the decision of the Apex reported in AIR 2007 SC 633 and therefore, it held that Letters Patent Appeal is maintainable and accordingly, it has been decided on merits.
The citizen received bullet fired by Army man when the latter was discharging his duty of maintaining law and order and when he was acting under the orders of Executive Magistrate. Let us examine whether in such a situation said act could be treated as actionable wrong in civil court. The law on the point of 'State Act' and 'Sovereign Action' is quite developed.
The Apex Court has in case of N.Nagendra Rao and Co. Vs. State of A.P. reported in AIR 1994 SC 2663 explained at length the concept of 'State Act' and 'Sovereign Action' as it was resorted to as defence in era of pre- independence and post independence. The relevant observation deserve to be set out as under :
23.
In the modern sense the distinction between sovereign or non-sovereign power thus does not exist. It all depends on the nature of power and manner of its exercise. Legislative supremacy under the Constitution arises out of constitutional provisions. The legislature is free to legislate on topics and subjects carved out for it. Similarly, the executive is free to implement and administer the law. A law made by a Legislature may be bad or may be ultra vires, but since it is an exercise of legislative power, a person affected by it may challenge its validity but he cannot approach a Court of law for negligence in- making the law. Nor can the Government in exercise of its executive action be sued for its decision on political or policy matters. It is in public interest that for acts performed by the State either in its legislative or executive capacity it should not be answerable in torts. That would be illogical and impractical. It would be in conflict with even modern notions of sovereignty. One of the tests to determine if the legislative or executive function is sovereign in nature is whether the State is answerable for such actions in Courts of law. For instance, acts such as defence of the country, raising armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are functions which are indicative of external sovereignty and are political in nature. Therefore, they are not amenable to jurisdiction of ordinary Civil Court.
No suit under Civil procedure Code would lie in respect of it. The State is immune from being sued, as the jurisdiction of the Courts in such matter is impliedly barred. 24. But there the immunity ends. No civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of State as a juristic person, propounded in Nineteenth Century as sound sociological basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government at par with any other juristic legal entity. Any watertight compartmentalization of the functions of the State as "sovereign and non-sovereign" or "governmental and non-governmental"
is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual, change of statutory power being statutory duty for sake of society and the people the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State even though it was against law and negligently. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a welfare State is not shaken. Even in America where this doctrine of sovereignty found its place either because of the 'financial instability of the infant American States rather than to the stability of the doctrine theoretical foundation,' or because of 'logical and practical ground,' or that 'there could be no legal right as against the State which made the law' gradually gave way to the movement from, 'State irresponsibility to State responsibility.' In welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non-sovereign powers for which no rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity. The determination of vicarious liability of the State being linked with negligence of its officers, if they can be sued personally for which there is no dearth of authority and the law of misfeasance in discharge of public duty having marched ahead, there is no rationale for the proposition that even if the officer is liable the State cannot be sued. The liability of the officers personally was not doubted even in Viscount Canterbury (supra). But the Crown was held immune on doctrine of sovereign immunity. Since the doctrine has become outdated and sovereignty now vests in the people, the State cannot claim any immunity and if a suit is maintainable against the officer personally, then there is no reason to hold that it would not be maintainable against the State. 25. In the light of what has been discussed, it can well be said that the East India Company was not a sovereign body and therefore, the doctrine of sovereign immunity did not apply to the activities carried on by it in the strict sense. Since it was a delegate of the Crown and the activities permitted under the Charter to be carried on by it were impressed with political character, the State or its officers on its analogy cannot claim any immunity for negligence in discharge of their statutory duties under protective cover of sovereign immunity. The limited sovereign power enjoyed by the Company could not be set up as defence in any action of torts in private law by State. Since the liability of the State even today is same as was of the East India Company, the suit filed by any person for negligence of officers of the State cannot be dismissed as it was in exercise of sovereign power. Ratio of KasturiLal (supra) is available to those rare and limited cases where the statutory authority acts as a delegate of such function for which it cannot be sued in Court of law. In KasturiLal's case the property for damages of which the suit was filed was seized by the police officers while exercising the power of arrest under Section 54(1)(iv) of the Criminal Procedure Code. The power to search and apprehend a suspect under Criminal Procedure Code is one of the inalienable powers of State. It was probably for this reason that the principle of sovereign immunity in the conservative sense was extended by the Court. But the same principle would not be available in large number of other activities carried on by the State by enacting a law in its legislative competence.
26. A law may be made to carry out the primary or inalienable functions of the State. Criminal Procedure Code is one such law. A search or seizure effected under such law could be taken to be an exercise of power which may be in domain of inalienable function. Whether the authority to whom this power is delegated is liable for negligence in discharge of duties while performing such functions is a different matter. But when similar powers are conferred under other statute as incidental or ancillary power to carry out the purpose and, objective of the Act, then it being an exercise of such State function which is not primary or inalienable, an officer acting negligently is liable personally and the State vicariously. Maintenance of law and order or repression of crime may be inalienable function, for proper exercise of which the State may enact a law and may delegate its functions, the violation of which may not be sueable in torts, unless it trenches into and encroaches on the fundamental rights of life and liberty guaranteed by the Constitution. But that principle would not be attracted where similar powers are conferred on officers who exercise statutory powers which are otherwise than sovereign powers as understood in the modern sense. The Act deals with persons indulging in hoarding and black-marketing. Any power for regulating and controlling the essential commodities and the delegation of power to authorized officers to inspect, search and seize the property for carrying out the object of the State cannot be a power for negligent exercise of which the State can claim immunity. No constitutional system can, either on State necessity or public policy, condone negligent functioning of the State or its officers. The rule was succinctly stated by Lord Blackburn in Geddis v. Proprietors of Bonn Reservoir (1878) 3 App Cases p. 430 at p. 435 :-
"No action will lie for doing that which the legislature has authorized, if it be done without negligence, although it does occasion damage to any one; but an action does lie for doing that which the Legislature has authorized if it be done negligently."
27. Matter may be examined from yet another angle. Art. 300 of the Constitution of India is extracted below :-
"Art.
300. Suits and proceedings. -(1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.(2)
If at the commencement of this Constitution-
(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and
(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings."
In Vidhyavati (supra) it was held that this Article consisted of three parts :
(1)that the State may sue or be sued by the name of the State;(2)
that the State may sue or be sued in relation to its affairs in like cases as the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted; and (3) that the second part is subject to any provisions which may be made by an Act of the Legislature of the State concerned, in due exercise of its legislative functions, in pursuance of powers conferred by the Constitution.
In Vidhyawati (supra) and Kasturi Lal (supra) it was held that since no law had been framed by the Legislature, the liability of the State to compensate for negligence of officers was to be decided on general principle. In other words, if a competent Legislature enacts a law for compensation or damage for any act done by it or its officers in discharge of that statutory duty then a suit for it would be maintainable. It has been explained earlier that the Act itself provides for return of the goods if they are not confiscated for any reason. And if the goods cannot be returned for any reason then the owner is entitled for value of the goods with interest.
The Apex Court has in case of Smt. Nilabati Behera Vs.State of Orissa reported in AIR 1993 SC 1960 emphatically reiterated that when in a question of infringement of the fundamental rights, especially under Article 21 and 14 the plea of 'Stater action' and 'Sovereign Immunity' would pale into insignificance. Thus when a citizen is claiming violation of his rights under Article 21 of the Constitution of India the action based thereon would not be defeated only on the spacious pleas of 'State Action ' or Sovereign immunity .
The complaint of breach of Article 21 and actionable wrong based thereon need not be brought only in realm of and as remedy in public law but it could be enforced also under the provisions of private law by way of bringing suit in civil court for tortuous act of State or its agent and servant, as Section 9 of the CPC do not specifically bar any claim based upon any rights including fundamental rights. Thus a citizen has right either to resort to public law remedy of filing a writ petition or filing a civil suit in competent court but in that case the suit is to be tried as if it was brought for enforcing rights and seeking redress in accordance with provisions of the Civil Procedure Code and the plaintiff citizen would be under obligation to prove the negligence or tortuous act of State or its servant in accordance with the provisions of civil procedure code and he would be bound by the rigors of Evidence Act as well.
The Apex Court has observed in case of Sube Singh Vs.State of Hariyana reported in AIR 2006 SC 1117 as under:
20.
Cases where violation of Article 21 involving custodial death or torture is established or is incontrovertible stand on a different footing when compared to cases where such violation is doubtful or not established. Where there is no independent evidence of custodial torture and where there is neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of human right violation, by persons having criminal records in a routine manner for awarding compensation. That may open the floodgates for false claims, either to mulct money from the State or as to prevent or thwart further investigation. Courts should, therefore, while jealously protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable Police to discharge their duties fearlessly and effectively. While custodial torture is not infrequent, it should be borne in mind that every arrest and detention does not lead to custodial torture.
21. In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, courts may award compensation in a proceeding under Article 32 or
226. However, before awarding compensation, the Court will have to pose to itself the following questions:(a) Whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death or whether custodial torture is supported by medical report or visible marks or scars or disability. Where there is no evidence of custodial torture of a person except his own statement, and where such allegation is not supported by any medical report or other corroboration evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, courts may not award compensation as a public law remedy under Article 32 or 226, but relegate the aggrieved party to the traditional remedies by way of appropriate civil/criminal action.
Now in the light of the aforesaid discussion now let us examine as to what extent the plaintiffs proved the case of patent negligence and carelessness on the part of the State and the Army-man in opening fire and causing death of the husband of the plaintiff no. 3.
It is required to be noted at this stage that plaintiffs have chosen to take out remedy under Section 9 of the Code of Civil Procedure and have claimed that damages, which they sustained on account of death of deceased Umedmiya Rathod, husband of plaintiff no. 3, as a result of bullet injury fired by army man posted by the State for maintaining law and order situation. The Act of tort of negligence and carelessness on the agent is pleaded for fastening the liability on principal or in other words, the alleged negligence and reckless act of servant is sought to be made subject matter of claim for damages from the master in the suit. The trial Court has framed the following issues and answered as under:
ISSUES:(1)
Whether the plaintiffs prove that the deceased Gulam Rasul Umedmiya Rathod died in a police firing on 30.6.1985?(2)
Whether the plaintiffs prove that the police was negligent in opening fire in the circumstances of the case?(3)
If the plaintiffs succeed what should be the amount of compensation?(4)
Whether the defendant State proves that the action of opening fire on the part of police was just and proper in the circumstances of the case to maintain law and order?(5)
What order and award?
The findings on the aforesaid issues are as under:(1)
In the affirmative.(2)
In the negative.(3)
The plaintiffs failed and hence no award.(4)
In the affirmative.(5)
As per the final order.
The trial Court has discussed issued Nos. 1,2 and 4 together in its judgment. The trial Court has came to the conclusion that State cannot be said to have been in any way negligent and plaintiffs have failed to prove that the State agency had not exercised statutory powers honestly and in good faith. The State agency acted while discharging their statutory functions which ultimately are referable to base on the delegation of the sovereign powers of the State.
In these set of evidence, one needs to be mindful that plaintiffs were under duty to make out their own case as per their pleadings in the plaint. It is indeed unfortunate that the plaintiffs have chosen not to join concerned military man, who opened fire or whose bullet hit the plaintiff no.3's husband, which resulted into sad demise. The non-joinder of the party in absence of any specific objection, is required to be viewed from the aspect of plaintiffs lacuna in proving their case, as the plaintiffs have not rested their case only on State being vicariously liable on account of act of firing on the part of its servant and agent, in the instant case, as could be seen from the trial Court's judgment and decree, the army personnel were posted at the behest of State in a sensitive area where the procession was to pass, which was surrounded by Muslim inhabitants and therefore, it cannot be said that army or army personnel were not under the control of the State but a question arises that can this in itself be sufficient to rope in State as a vicariously liable for death of the husband of plaintiff no. 3. As it depend upon various factors discussed hereinabove, the State has taken a different stand in its written statement, which, in view of this Court, could be said to be a definite admission qua plaintiffs' claim that husband of plaintiff no. 3 died during riot or during the firing, that took place on Jordan Road on 30.6.1985. As against this, it can well be said that plaintiffs have not rested their case that they are entitled for claiming damaged on account of only filing, they have gone ahead and unequivocally pleaded and attempted to prove by leading evidence that there was uncontrolled and reckless firing aimed at killing the resident of surrounding area, which resulted into death of husband of plaintiff no. 3. Now when such specific plea is made, than, it was the burden lying upon the plaintiffs to prove it. In other words, when the State was consciously admitting the firing of five rounds during the time, which resulted into death of husband of plaintiff no. 3 and when such circumstances is pleaded and it is stated that the firing was done after giving due warning by the Executive Magistrate, in absence of any cogent evidence, showing contrary, it can well be said that written statement of the State cannot be partly accepted and partly brushed aside. Learned advocate for the State has therefore, rightly submitted that the case of the plaintiffs is otherwise taken upon the written statement to prove that the incident of firing is admitted by the State and death of husband of plaintiff no. 3 during firing is also admitted by the State. Otherwise, it was bounden duty cast upon the plaintiffs to prove the death by leading cogent evidence and therefore, when plaintiffs had relied upon the written statement of the State in respect of firing and death of of husband of plaintiff no. 3 during that firing, than, the rest of the statement, that the firing was absolutely necessary and it was warranted for saving life and liberty and saving damages to property and that it was done only after the executive magistrate on the spot ordered it to be done, etc, were required to be rebutted by the plaintiff by leading cogent evidence. The said written statement could not have been brushed aside by the learned trial Court, the learned trial Court has therefore, come to the conclusion that State has established that firing was warranted and there was no excess in resorting to fire. The amount of round fired looking to entire situation also go to support the case of the State.
Thus, from the evidence on record, it can well be said that the incident of death of husband of plaintiff no. 3, which occurred in firing, had not been on account of any overt action of enmity or over stepping of authority or deliberate action on killing someone. The court need to be mindful of the proposition of law that before holding the State responsible or vicariously liable for its servants or agents acts the vary act is required to be proved to be palpably and so imminently wrong as to give cause of action to the aggrieved. In the instant case, as it is seen, the plaintiffs have not proved, though attempted to plead a case of deliberate action on the part of the army to victimize particular community residing in that area. The facts pleaded by the plaints themselves go to show that the unfortunate victim had gone to roof top of his neighbor, in other words, the victim has in fact gone out of his residence and on the roof top his neighbor during the time when the entire area was under curfew. When the Curfew was imposed and Army personnel were deployed for maintaining law and order situation and when the procession was passing through the area, the unfortunate incident occurred. In these set of circumstance it was duty cast upon the plaintiffs to prove beyond doubt that the firing was resorted to without it being warranted and that no special care required under these circumstances were not taken by the State. In absence of such proof the Trial Court had no option but to dismiss the suit.
The question arises as to whether for such an act, which also amount to act of offence, for which obviously State would not authorize its officer, can State be held responsible?. The Court while holding State responsible in such a situation, has to come to a specific conclusion that act was in discharge of official duty and hence, it was thus rendering the State vicariously liable for the same.
Looking to the aforesaid facts and circumstances of the case and the fact that looking to attending circumstances five round of firing were taken place and looking to fact that Jordan Road area is popular for such acts and sensitive area, go to show that firing was not unjustifiable as a result thereof unfortunate incident of death has occurred, to which, though sympathy would flow, the claim under the law of tort cannot be accepted. The authorities cited by learned advocate for the appellants have not been of any avail to the facts and circumstances of the case on hand. It is required to be noted that non-joinder of the concerned army-man, who opened fire, can be said to be lacuna on the part of the plaintiffs and learned Single Judge's observation on this ground cannot be said to be in any way contrary to law so as to call for any interference.
The Learned Single Judge has elaborately discussed these as aspect. Therefore, the order passed by the trial Court as well as learned Single Judge needs no interference and the Letters Patent Appeal fails and is hereby rejected [JAYANT PATEL,J.] [S.R.BRAHMBHATT, J,] (Per:Honourable Mr.Justice Jayant Patel) I had the benefit of going through the reasons recorded by my brother S.R. Brahmbhatt, J., but with respect, I would like to record my own separate reasons as under:
As the facts are already been narrated in the judgement from paras 1 to 19, I find it proper not to repeat the same, save and except, to the extent of the facts by distinguishing feature I am required to add, keeping in view the legal position as stated hereinafter.
The first and the important aspect is that the plaint and the written statement are the pleadings of the parties and they stand different than as proof as per the Evidence Act. If the pleadings are to be considered as evidence, the efficacy of the Evidence Act and the burden of proving the facts pleaded would be lost. The aforesaid stands with the exception that after the plaint if there is admission in the written statement, Court may not insist for proof, but thereby, it cannot said that the power of the Court for insistence of the proof does not exist on a mere admission, but such power leaves discretion upon the Court to act on admissions. Reference to certain provisions of Civil Procedure Code would throw light on certain relevant aspects.
Order VI Rule 1 of the Civil Procedure Code provides that pleadings shall mean plaint or written statement .
Order VI Rule 2, Sub-Rule (1) reads as under:(1)
Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
The aforesaid makes distinction between the pleadings and the evidence by which they are to be proved. Pleadings cannot be treated as proof unless there is admission of the averments stated in the plaint in the written statement of the defendant.
The Apex Court in the case of Ramesh Kumar Vs. Kesho Ram reported at AIR 1992 SC 700 had an occasion to consider the distinction between the pleadings and the proof and at para 6, it was observed inter alia as under:
While it is true that a distinction must be made between pleading and proof, the further submissions that these must necessarily be in two successive sequential stages need not always be so and particularly when dealing with please of subsequent events in appeals and revisions. If the allegations of facts made in support of such a plea are denied then alone the question of their proof in an appropriate way arises. If those allegations of facts are admitted, there is no need to prove what is admitted or must be deemed to be admitted. There can be admissions by non-traverse. The High Court proceeded to accept the allegations as proved presumably in view of the fact that appellant's learned counsel did not even appear, let alone challenge the allegations. But there might also be cases in which, having regard to the nature of the circumstances, the Court may insist upon proof independently of such admission by non-traverse.
(Emphasis supplied) The aforesaid leads to the one clear aspect that the party is expected or bound to prove the case as alleged by him and as covered by the issues framed. This is in accordance with the main principles of practice that a party can succeed only if what was pleaded or alleged is proved.
It is an admitted position in the present case that after the pleadings by the plaintiff-respondent in the plaint and the defendant-appellant in the written statement, the Trial Court framed the issues which are already reproduced at para 27 by my brother in his judgement. However, after the issues if the proof or the evidence produced by the parties was to be traced, it is the wife of the plaintiff who has entered the witness box and she was examined as P.W.1. She has stated in her deposition that it is not correct that there was stone throwing over the police from her area. She has stated in her deposition that it is not correct that when there was fire on Jordan Road, one bullet hit her husband. She has stated in her deposition that her husband had gone for taking back the bedding which was over the roof and at that time, in her area, the police did firing and when she went upstairs, she found that her husband had received bullet and he was bleeding. In the cross examination, she has denied that she had gone on the roof, but she categorically stated in the cross examination that the police targeted and shot the bullet. She has denied that any stone throwing was made by her husband or any other boys and at that time police had opened firing and her husband had expired. She has also stated in her cross-examination that it is incorrect that her husband by going to the roof was throwing stones. She also stated in her deposition that it is incorrect that police had warned on mike before firing. She also stated that it is incorrect that inspite of announcement on the mike by the police she and her husband were throwing stones and therefore the bullet of the police hit her husband.
As against the aforesaid evidence, on behalf of the State or its officers-appellant herein, none had entered the witness box.
Therefore, if the evidence of the party in the suit after framing of the issues were and are to be considered, there is the evidence on behalf of the plaintiff and no evidence whatsoever on behalf of the defendant. The aforesaid is coupled with the important aspect that there was already an issue no.4 for which the burden was upon the State to prove that the action of opening fire on account of the police as just and proper in the circumstance of the case to maintain law and order. In absence of any evidence, nor any material traced in the cross-examination in support thereof, the finding could not have been answered in affirmative by the trial court in absence of any evidence whatsoever, by the appellant-defendant.
Issue no.1 was on the aspect as to whether the plaintiff proves that the deceased Gulam Rasul Rathod died in the police firing on 30.06.1985 and the said is held to be in affirmative, whereas issue no.2 on the aspect of as to whether plaintiff proves that the police was negligent in opening fire in the circumstance of the case , if was to be examined in context to the proof produced in support of the said issue, the same was very much there before the trial court through the deposition of the wife of the deceased, one of the plaintiff, who entered the witness box and offered herself for examination. The finding on the aforesaid issue was required to be in affirmative, but it appears that ex facie error apparent on the record has been committed by the learned Trial Judge ignoring the most important aspect that there was no evidence whatsoever led on behalf of the State or its officers.
Under the above circumstances, if the matter was to be considered in light of the pleadings and the proof produced by the concerned party to the trial court, it had no option but to decree the suit in favour of the plaintiff by awarding compensation for the death caused of the deceased on account of the police firing.
The attempt was made by the learned AGP to raise various contentions on the hypothesis and conjectures without there being any evidence whatsoever on record led by or on behalf of the State.
As such, the pleadings were already considered by the learned Trial Judge, viz., as that of the averments made in the plaint and the written statement and after having considered the pleadings of both the sides, the trial court had framed the issues for which the parties were supposed to lead the evidence. One of the issue as observed earlier was issue no.4 for which the burden was found as by the trial court upon the defendant and that burden was not discharged. Under these circumstances, the contention and the arguments as sought to be canvassed by the learned AGP taking the basis of the pleadings in the written statement could at the first brush be said as only on the hypothesis and surmises without there being any proof or evidence at all. It is not a matter where upon the evidence produced by way of the deposition and the cross examination of the wife of the deceased, one can record the finding or the conclusion that the pleadings in the written statement were proved.
Apart from the above, even if such contention of the learned AGP is to be examined for the sake of consideration, the principal contention was that the admission in the written statement could not be isolated partly, but was to be considered as a whole. It was submitted that if the pleadings in the written statements were to be considered as a whole, it was not a case for awarding of compensation and therefore, the Trial Court rightly dismissed the suit and the learned Single Judge rightly dismissed the appeal.
It appears that if the pleadings are only to be considered, the following position emerges -
Admissions in the pleadings :
The day of the incident was the day of Rathyatra on which a procession is being carried of Lord Jagannathji by Hindus.
Because of the law and order situation, the permission was not granted for the procession of the chariot of Lord Jagannathji.
Inspite of the non-grant of the permission for the procession of Lord Jagannathji, Hindus had decided to carryout the procession of Lord Jagannathji on the same day and procession of the chariot of Lord Jagannathji was organised and undertaken by Hindus.
As it was not possible for the State to stop the undertaking of the procession of chariot of Lord Jagannathji, in order to maintain law and order situation, curfew was imposed and assistance of the army was taken by the State in certain area of the city which included the area at which the incident happened. In that area, there was also residence of the deceased.
When the chariot was passing through certain area, police opened firing. The bullet in the police firing hit the deceased who died on account of the bullet injury.
The pleadings of the appellants (original defendants) remained without proof:
There was stone throwing from both the community when the chariot was passing through Sajan Jamadar Mohalla. The stone throwing was also upon the platoons of the military whose assistance was taken by the State for maintenance of law and order.
The officers gave warning to the mob for stoppage of stone throwing, but was not responded/or discontinued.
The firing was opened under the permission of the Executive Magistrate.
Five rounds were opened in the police firing.
The police firing was not on account of any personal vengeance or by keeping vengeance to a particular community.
There was no negligence of the State or its officers, but was with a view to maintain law and order situation which is a sovereign act of the State.
As such, in absence of any evidence whatsoever produced on behalf of the State by examination of any of its officer as observed in the earlier paragraphs, it could not be said that the pleadings in the written statement by way of a defence raised on behalf of the State were proved. If the admissions were to be considered as it is read with the evidence produced on behalf of the plaintiff, it would lead to the trial court to conclude the finding on issue no.2 in affirmative and issue no.4 in negative resulting into decreeing of the suit for awarding of the compensation in favour of the original plaintiff.
The matter can be examined from a different angle too. It is true that the maintenance of law and order situation is a sovereign act of the State but the principles of State liability to compensate its citizen are very well reproduced by my brother in his judgement at para 22 and I think I need not repeat, but in order to lay emphasis, the relevant portion needs to be given due weightage. At para 24 of the judgement in the case of N.Nagendra Roa and Co. (supra), the Apex Court had inter alia observed thus -
No civilised system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of State as a juristic person, propounded in nineteenth century as sound sociological basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government on a par with any other juristic legal entity. Any watertight compartmentalization of the functions of the State as "sovereign and non-sovereign" or "governmental and non-governmental" is not sound. It is contrary to modem jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for sake of society and the people the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State even though it was against law and negligent. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a Welfare State is not shaken.
It was further observed that -
In Welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non-sovereign powers for which no rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity .
It was also observed that -
But the Crown was held immune on doctrine of sovereign immunity. Since the doctrine has become outdated and sovereignty now vests in the people, the State cannot claim any immunity and if a suit is maintainable against the officer personally, then there is no reason to hold that it would not be maintainable against the State.
It was also observed at para 26 inter alia, the relevant of which reads as under:
Maintenance of law and order or repression of crime may be inalienable function, for proper exercise of which the State may enact a law and may delegate its functions, the violation of which may not be sueable in torts, unless it trenches into and encroaches on the fundamental rights of life and liberty guaranteed by the Constitution.
Right to life to any citizen guaranteed under Article 21 of the Constitution does provide no deprivation of life except according the procedure prescribed by law. It is hardly required to be stated that in the matter where the liberty or life of the citizen is involved, it is necessary for the officers to act with the expectation and strict compliance with the mandatory provisions of law, as it is not permissible in such cases to take a liberal or generous view of the lapses on the part of the officers. Reference may be made to the decision of the Apex Court in the case of Hem Lall Bhandari Vs. State of Sikkim reported in AIR 1987 SC 762.
The courts of the country have to render enough zeal to safeguard right to life of any citizen and any lenient approach on the part of the Court to leave room for a casual or cavalier approach on the part of the State or any of its officer would result into failure on the part of the Court to discharge its obligation with which the power is so vested in the judiciary by the constitution of the country. The Court would be zealous to protect and guard the fundamental rights of life of every citizen unless the deprivation by the State or its officer is strictly in accordance with the procedure prescribed by law. If the life of any citizen has been deprived by the State or its officers, heavy burden would lie upon the State to prove that the procedure prescribed by law for deprivation of such life was strictly followed and in absence thereof, any laxity on the part of the State should and must result into appropriate compensation for the lapse on the part of the State or its officers. The matter cannot be looked at from the point of alleged technicalities to join the concerned officer, who has deprived of the life to any citizen when the State itself has admitted that the life was lost in the police firing. It would be for the State prove by cogent material establishing that it is on account of the maintenance of law and order situation after taking all care and caution as was required, the unfortunate incident has happened. Any casual or cavalier approach on the part of the State can neither be leniently viewed nor can be countenanced by the Court, but on the contrary, such approach not only deserves to be deprecated strongly, but should result into heavy compensation for deprivation of the life to the citizen.
It is not a matter where the State is clothed with the power to take away the life of a citizen while maintaining law and order situation, but the life of a citizen may be lost if all proper care and cautions are taken by the concerned officers of the State for maintenance of law and order situation and the death of the citizen was the consequence thereof. Any attempt to style deprivation of the life of any citizen by any officer of the State cannot be accepted either on a mere ipsi dixit nor on any mere pleading without their being any proof of it. If the State was to prove that on account of stone throwing on the police or the army, the firing was a must, then it was required for the State to first prove that there was stone throwing. It was also required for the State to prove that after the stone throwing had started, proper warning was given to the mob. It was also required for the State to prove that inspite of the proper warning, the activity of stone throwing did not end. It was also required for the State to prove that thereafter, the permission of the Executive Magistrate was taken for opening police firing and it was also required for the State to prove that the police firing was opened in the manner to prevent the mob from stone throwing and not for targeting the bullet so as to take away the life of the citizen. It is undisputed position that neither any documentary evidence is produced whatsoever nor any officer of the State has entered the witness box, may be police officer or the Executive Magistrate who had authority to grant permission for opening police firing. Under these circumstances, if the State has rested itself by just filing written statement, the approach on the part of the trial court to dismiss the suit that too by recording the finding that issue no.2 was not proved, in spite of the fact that the wife of the deceased had entered the witness box and she stood by the pleadings narrated in the plaint even after her cross-examination and that the finding of issue no.4 in affirmative in spite of the fact that no officer of the State entered the witness box for proving the fact of the defences raised in the written statement or for proving the fact for following strict procedure for opening of police firing and consequently resulting into deprivation of the life of the deceased, in my view can be said to be ex facie perverse approach on the part of the trial court while protecting the right of the citizen of the country for right to life and consequently, granting exemption to the State and its officers from its liability to pay compensation.
The aforesaid is coupled with the important aspect that permission for procession of Chariot of Lord Jagannathji was not granted by the competent authority. It is while protecting such procession of chariot of lord Jagannathji, the police and the army were deployed and the unfortunate incident happened of deprivation of the life to the citizen. At the same time, it is true that the curfew was imposed in the area, but even if such was the position, the breach of curfew would not result into authorising the State or its officers to take away the life of the citizen unless there were orders of shoot at sight which was not even the case pleaded in the written statement by way of defence on behalf of the State.
The learned Single Judge of this Court in the First Appeal unfortunately gave undue weightage to the deployment of the army and consequently, leading to record the finding of non-joinder of necessary parties. As such, it was not a case even pleaded by the State that the whole area of the route for the procession of chariot of Lord Jagannathji was entrusted to the army but the case pleaded in the written statement by way of defence was that the army was deployed to assist the State and that is the reason why the pleadings were made in the written statement for the permission of the Executive Magistrate. Had the area entrusted to army, the permission of the Commandant of the army would be required, but in a case where the State has requisitioned army for assistance of the State Police or for maintenance of the law and order in certain area of the State, the officers of the army or the members of the armed force would be acting on and behalf of the State Government who has so requisitioned the services of the army and that was the reason why the pleadings are made in the written statement for the permission granted by the Executive Magistrate. Therefore, when the members of the armed forces have acted under the permission of the Executive Magistrate, it was not a case where the suit could be thrown away just on the ground that the concerned officer of the army was not joined as the party or otherwise. A citizen who has lost his life or relative of the citizen who has suffered agony may not be knowing the name of the member of the armed force who opened firing under the permission of the officers of the State Government, but the burden as observed earlier, even as per the issues framed by the trial court and even as per the pleadings as well as constitutional mandate of Article 21 was upon the State to disclose the name and to establish that the procedure as prescribed for deprivation of the life was strictly followed.
The aforesaid observations and discussions lead me to record the following conclusion On behalf of the plaintiff, a case was pleaded in the plaint and the evidence in support thereof was produced in the plaint for wrongful deprivation of the life of the deceased resulting into the consequence of liability on the part of the State to pay the compensation.
The State admitted the incident in the written statement and pleaded certain defences but led no evidence whatsoever by examining any of its officers nor produced any documentary evidence whatsoever in support of the defences raised in the written statement.
The plaintiff had satisfactorily discharged the burden upon it for proving issue no.2 in affirmative.
The defendant had failed to discharge the burden of proving issue no.4 in its favour.
The approach on the part of the State of not leading any evidence whatsoever in support of the defence pleaded in the written statement and after framing of issue no.4 could be said as casual, cavalier in prosecuting the defences in the suit for compensation.
The Trial Court failed to consider the basic aspect that the right to life guaranteed to any citizen under article 21 of the constitution is to be zealously guarded and to be enforced, unless the State or its officer by strict proof establishes that the deprivation of the life was through the procedure established by law.
The burden of proving the following of the procedure established by law for deprivation of the life of the citizen as per the constitutional mandate as well as per the Evidence Act and Civil Procedure Code after framing of the issue, was upon the State for which it failed.
The principles of proof beyond reasonable doubt has no applicability if the matter is to be considered for the purpose of awarding of compensation, but in a matter of deprivation of life of any citizen by and or its officers, the burden of proving the procedure followed in accordance with law would be upon the State either itself or through its officers who are representing the State.
Deployment of army for maintenance of law and order situation was to assist the State upon the requisition of the State. When the army is working under the instructions of the Executive Magistrate who is an officer of the State, it cannot be said as an action of the army under its military power, but can be said as its operation on behalf of State and the State would be liable for compensation for any lapse on the part of any member of the armed forces so deployed for the purpose of maintenance of law and order situation unless the whole area is entrusted by the State to the army under its full control of its military power.
When the State is joined as party in the proceedings and the compensation is prayed from the State, who is represented through the Secretary of the State of Gujarat, Home Department of the State Government, it cannot be said that the suit would fail on account of non-joinder of necessary part, more particularly when no such issue was even framed by the Trial Court for such purpose.
No arguments are advanced on the question of quantum of compensation nor pleaded in the defence. As per the evidence on behalf of the plaintiff that her husband was earning Rs.700/- to Rs.750/- per month in the business could be said as sufficient for awarding of the compensation as prayed of Rs.90,000/-. However, the interest rate of 18% p.a. is excessive and the reasonable interest would be of 7% p.a from the date of the suit until the amount is realised by the plaintiff.
In view of the aforesaid, the judgement and the decree for dismissal of the suit and its confirmation thereof by the learned Single Judge in First Appeal, in my view deserves to be quashed and set aside by allowing the suit with the decree of the compensation of Rs.90,000/- with interest at the rate of 7% p.a. from the date of the suit until the amount is realised and consequently, the appeal deserves to be allowed with the cost and the decree is required to be drawn accordingly.
Hence, with respect, I do not concur with the view taken by my brother (S.R. Brahmbhatt, J.) for dismissal of the appeal, but my ultimate view is to allow the appeal as observed hereinabove.
(JAYANT PATEL, J.) (S.R. BRAHMBHATT, J.) Further Order :
In view of the aforesaid disagreement by both of us, office is directed to place the matter before the Hon'ble the Chief Justice for placing the matter before the appropriate Court after obtaining suitable orders from the Hon'ble the Chief Justice on administrative side.
(JAYANT PATEL, J.) (S.R. BRAHMBHATT, J.) *pallav/bjoy