Kerala High Court
Kodungallur Merchants Association vs State Of Kerala on 1 February, 2006
Equivalent citations: 2006(1)KLT636, 2007 (1) AJHAR (NOC) 150 (KER.) = (2006) 1 KER LJ 420
Author: V. Ramkumar
Bench: J.B. Koshy, V. Ramkumar
JUDGMENT V. Ramkumar, J.
1. In this Writ Petition filed under Article 226 of the Constitution of India, the petitioners seek the following reliefs:--
(i) issue a writ in the nature of mandamus directing the respondents to pay compensation to the tune of Rs. 10,0007- or such other sum deemed fit for the loss suffered by the second petitioner due to 'Hartal;
(ii) declare that respondents 1 and 2 have failed to fulfill the constitutional obligation cast on them to protect the property of the second petitioner who is liable to be compensated for the loss;
(iii) issue a writ in the nature of mandamus directing the second respondent to pursue the criminal case registered with enthusiasm as held in George Kurian 's case and arrest the accused immediately;
(iv) issue a writ in the nature of mandamus directing the second respondent to afford adequate police protection to the petitioners in the wake of the constant threat and intimidation of respondents 3 and 4; and
(v) issue such other writ, order or direction as this honourable court deems fit and proper in the circumstances of the case.
2. The 1st petitioner is the Kodungallur Merchants Association represented by its President and the 2nd petitioner is one C.K. Rajan, Proprietor of Thalam Readymades at South Nada, Kodungallur. The 1st respondent is the State of Kerala represented by the Home Secretary, the 2nd respondent is the Sub Inspector of Police, Kodungallur, the 3rd respondent is the Communist Party of India (Marxist) represented by the Secretary of the Kodungallur Area Committee and the 4th respondent is the Democratic Youth Federation of India (DYFI) represented by the Kodungallur Block President.
3. The case of the petitioners can be summarised as follows:-
The 2nd petitioner is engaged in the business of readymade garments and innerwears. He is a member of the 1st petitioner association. It appears that one Parthasarathi who is the area committee member of the 3rd respondent and Block Secretary of the 4th respondent was manhandled by the sympathisers of the Bharathiya Janatha Party on 6.11.2005. The 3rd respondent immediately gave a call for Hartal on 7.11.2005 as evidenced by Ext.Pl news item published in the Mathrubhumi daily dt. 7.11.2005. The call for hartal was quite unexpected and unwarranted too. For fear of physical assault to his employees, the 2nd petitioner did not open his shop and was at home. While so, he received information that the glass panes and board of his shop were broken. The glass panes were intended to display garments which would remain displayed even when the shop is closed. Ext.P2 series of photographs will show that the glass panes and board were smashed and reduced to smithereens on account of pelting of stones by persons belonging to respondents 3 and 4 organisations while taking out a procession along the road. The 2nd petitioner was not the only target. Many other shops including Gayathri Pooja Stores were damaged by miscreants owing allegiance to respondents 3 and 4. Even private cars plying along the road and buses belonging to the Kerala State Road Transport Corporation were not spared. The vandalistic acts were reported widely. Ext.P3 is the true copy of the news published in the Mangalam daily dt. 8.11.2005. On the complaint lodged by the 2nd petitioner, the Kodungallur police had registered Crime No. 756/2005 on 7.11.2005. Ext.P5 is a copy of the F.I.R. registered against DYFI workers for offences punishable under Sections 143, 147,148,188 and 427 read with Section 1491.P.C. In Ext.P4 copy of the news item published in the Malayala Manorama daily dt. 9.11.2005, the fact regarding registration of criminal cases had been reported. Even though several cases have been registered, nobody has so far been arrested notwithstanding the directions issued by the Full Bench of this Court in George Kurian v. State of Kerala . The 2nd petitioner has suffered a loss to the tune of Rs.10,000/-, as reflected from the F.I.R. itself. Since respondents 1 and 2 have failed to fulfil their constitutional obligation to protect the life and property of the petitioners, the 2nd petitioner is entitled to be adequately compensated. Hence the Writ Petition.
4. A counter affidavit has been filed on behalf of the 1st respondent contending inter alia as follows:-
The hartal on 7.11.2005 was made by the Marxist Party in protest against the manhandling of certain C.P.I.(M) local leaders by B.J.P. activists. They had pelted stones at shops. Crime No.759/2005 was registered against the destruction of the property of Gayathri Pooja Stores. Even though the police made efforts to arrest the accused, they had surrendered before the J.F.C.M. Court, Kodungallur. The case has been charge-sheeted on 5.11.2005. A complaint was received from a KSRTC bus conductor by name Girijan that the windscreen of a KSRTC bus was broken. A case has been registered as Crime No.755/2005 under Section 188 read with S.34 IPC and Section 3(2)(c) of the Prevention of Destruction of Public Property Act and the said case has been investigated. Charge-sheet in that case has been sent to the J.F.C.M., Kodungallur on 30.11.2005. All the accused persons in that case are absconding and that case has been taken on file as C.C.No. 1486/05. Criminal cases have been registered and pursued and investigations have been conducted fairly in accordance with the decisions of this court as well as the Supreme Court and in the light of G.O. (Ms.) No. 277/03/Home, Trivandrum dt. 17.12.2003. Three public interest writpetitions filed as O.P. Nos. 21978/2000, 20342/2000 and 21374/2000 are pending before this court. There has been a direction in those cases to the Government to furnish details. As per the reports of the District Collectors concerned, legal notices have been issued and steps have been taken to file civil suits in 17 cases at Trivandrum, 3 civil suits have been filed in Kollam District, 41 crimes have been registered and 22 suits have been filed for recovery of damages in Pathanamthitta District, 34 crimes have been registered and 1 civil suit has been instituted in Kottayam District, 10 crimes have been registered in Idukki District, 4 cases have been filed in Alappuzha District for damages, steps have been taken to file civil suits in Ernakulam District, 38 cases for damages have been filed in Thrissur, steps have been taken to file civil suits in 69 cases for damages in Kozhikode District and 13 suits have been filed in Wayanad District. The Government will be closely monitoring the progress of all those cases and appropriate directions have been given in that behalf as evidenced by Ext.Rl(a) Government Order viz. G.O.MS. 277/2003/Home dt. 17.12.2003. There is no failure on the part of the police in registering cases or conducting follow up action. All earnest efforts have been made to arrest the accused. The remedy of the petitioners is to file suits for damages before civil courts against persons who are liable for the same. The extent of actual damage suffered could be ascertained and compensation awarded only after taking evidence. The petitioner is not entitled to the reliefs claimed in the Writ Petition.
5. Respondents 3 and 4 have filed a joint counter affidavit inter alia contending as follows:--
It is for the petitioners to substantiate their claim regarding their respective status. The averment that these respondents gave a call for hartal on 7.11.2005 is absolutely false and hence denied. Neither the office of the 3rd respondent nor the 4th respondent had called for hartal on 7.11.2005 as alleged. No press release or note has been given by these respondents calling for a hartal on 7.11.2005. The report in Ext.Pl newspaper is not on the basis of any official communication from the office of these respondents. No member of the party of these respondents had done any illegal act such as breaking of glass panes etc. of the 2nd petitioner's shop. The knowledge of the 2nd petitioner itself is hearsay and he has no direct knowledge about the alleged incident. Ext.P2 series of photographs cannot be used for casting any liability on these respondents who have not committed any illegal act of causing damage to the shop of the 2nd petitioner. These respondents as well as their members are law abiding citizens and have never committed any mischief as alleged. None of the members of these respondents has caused any damage to any private car or KSRTC bus. There is no case registered against any of the members of these respondents alleging any such illegal act. Reliance placed on Ext. P3 newspaper report is incorrect and not legally sustainable. So is the case with regard to Ext. P4 newspaper report. Exts.Pl, P3 and P4 newspaper reports only reveal that all the newspapers are keeping a hostile attitude towards the party of these respondents. The writ petition is a politically motivated one filed for tarnishing the image of these respondents, particularly in view of the ensuing State Assembly Elections. Merely because Ext. P5 F.I.R. has been registered against 100 DYFI workers, it does not mean that these respondents have caused the damage alleged. The claim for damages is whimsical and fanciful and there is no supporting material on record to sustain the claim. These respondents have not violated any of the directions in the judgments of this court or of the Supreme Court. This writ petition has been filed under the guise of violation of fundamental rights, but really as an oppressive measure for wreaking political vengeance on these respondents by bypassing the civil court. There has been no threat or intimidation from these respondents or their members. The writ petition has been filed without any merit and it deserves to be dismissed with exemplary costs.
6. We heard Adv. Sri V.Chitambaresh, the learned counsel for the petitioners, Adv. Sri Sujith Mathew Jose the learned Government Pleader appearing for respondents 1 and 2 and Adv. Sri K.C.Eldho, the learned counsel appearing for respondents 3 and 4.
7. Even though respondents 3 and 4 denied the allegation that they or their members had called for a hartal on 7.11.2005, it is pertinent to see that except contending in paragraph 9 of their counter affidavit that reliance placed by the petitioners on the newspaper reports is incorrect and not legally sustainable, there is no specific allegation in the counter affidavit of respondents 3 and 4 that Exts. Pl, P3 and P4 newspaper reports in Mathrubhumi daily, Mangalam daily and Malayala Manorama daily respectively are false. In Ext.Pl news item in the Mathrubhumi daily dt. 7.11.2005 it is reported that one Parthasarathi who was the DYFI Block Secretary and C.P.I.(M) Area Committee Member was manhandled and as a mark of protest against the same, the CPI(M) has exhorted the observance of hartal on 7.11.2005 in the Kodungallur Municipal Area and in the Methala, Eriyad, Edavilangu and Sreenarayanapuram Panchayat areas. The call for hartal was conveyed to the Mathrubhumi daily by one M.A.Vijayan who is the Area Secretary of the CPI(M), We see no reason as to why the above newspaper report should be disbelieved coming as it does from a daily newspaper of repute in Kerala. The learned counsel for respondents Nos. 3 and 4 also submitted that there was no official call by them to observe hartal, but admitted that since their leaders were attacked on the previous day, their followers protested which resulted in hartal. The fact that there was a call for hartal by the 3rd respondent is virtually admitted in the counter affidavit filed by the 1st respondent, the State of Kerala represented by the Home Secretary. In Ext.P4 news item in the Malayala Manorama daily dt. 9.11.2005 also it is reported that for unleashing the vandalism against shops and business houses on the hartal day at Kodungallur, police have registered cases against 20 CPI(M) - DYFI workers and those cases include the case registered against the former DYFI Block President E.V.Ramesan and 15 others for smashing the glasspanes of Thalam Readymades at South Nada at Kodungallur. There is no reason why the above report published in the Malayala Manorama daily, which also is a daily newspaper of repute in Kerala, should be disbelieved. The counter affidavit filed by the 1st respondent also does not deny the incident, but only says that the extent of damage can be assessed only in a properly instituted suit before the civil court. The petitioners have got the loss sustained by the 2nd petitioners assessed by a licensed valuer. Ext.P6 is the survey report dt. 5.12.2005 prepared by one Sunny Alappat, B.E., M.I.E., M.I. Mech E., C. Eng., A.I.V., A.I.I.S.A. with registration S.L.A. 16568/19-08-2007 who is a chartered engineer, insurance surveyor, loss assessor, valuer and Government authorised competent person for evaluating loss, damage etc. in respect of pressure vessels, plants, hoists, lifting tackles etc. He has given a detailed assessment of the loss caused to the shop of the 2nd petitioner and has estimated a sum of Rs. 10,150/- as the compensation payable for the loss. We see no reason to disbelieve or discard the above valuation made by a qualified and competent assessor.
8. The further question is as to whether respondents 3 and 4 could be saddled with the liability for the above damage in a writ petition filed under Article 226 of the Constitution of India. A Full Bench of this Court in the decision in Bharath Kumar v. State of Kerala 1997(2) KLT 287 held that call for a bandh by any association, organisation or political party and the enforcement of such a call are both illegal and unconstitutional. It has also been held that political parties and organisations who call for bandh and who enforce such calls are liable to compensate the Government, the public and the citizens for the loss suffered by them. The main premise on which the decision of the Full Bench has been based is "public law" and it has been held that no political party has a right to call for a bandh on the plea that it is part of its fundamental right of freedom of speech and expression. The aforesaid decision of the Full Bench of this court has been affirmed by the Honourable Supreme Court in Communist Party of India (Marxist) v. Bharath Kumar and Ors. 1997 (2) KLT 1007 (SC) : AIR 1998 SC 183. When the holding of bandh became illegal under the law of the land, a subterfuge was invented by the organisers of bandh by calling it 'hartal' which was nothing but a bandh in disguise. A Division Bench of this Court in Kerala Vyapari Vyavasayi Ekopana Samithi v. State of Kerala 2002 (2). KLT 430, rising to the occasion, held that forced hartal is also illegal. Again, a Full Bench of this Court in George Kurian v. State of Kerala further held that those who are calling for strike or hartal are vicariously liable to pay damages. The Full Bench speaking through one of us (Koshy J.) observed in direction No. (6) under paragraph 13 as follows:
With regard to the injuries and damages caused to the private persons and their properties, Government should adequately compensate them immediately as Government has failed to fulfill its constitutional obligation to protect lives and properties of the citizens and the Government should take steps to recover the same from the persons who caused such damages or injuries and also from the persons and political parties or organizations who called for such hartals or general strikes. Criminal cases also should be taken against the offenders as well as the abettors to the offence. Such criminal cases registered should be pursued with enthusiasm and it should not be withdrawn merely on political pressure and investigation should be conducted fairly not with a purpose of filing a subsequent refer report as undetected;
In M.S. Grewal v. Deep Chand Sood the Apex Court has made the following observation in the context of maintainability of writ petition for award of compensation against tortious acts affecting the public at large:--
26. Next is the issue "maintainability of the Writ Petition" before the High Court under Article 226 of the Constitution. The appellants though initially very strongly contended that while the negligence aspect has been dealt with under penal law already, the claim for compensation cannot but be left to be adjudicated by the civil law and thus the civil court's jurisdiction ought to have been invoked rather than by way of a writ petition under Article 226 of the Constitution. This plea of non-maintainability of the writ petition though advanced at the initial stage of the submissions but subsequently the same was not pressed and as such we need not detain ourselves on that score, excepting however recording that the law courts exist for the society and they have an obligation to meet the social aspirations of citizens since law courts must also respond to the needs of the people. In this context, reference may be made to two decisions of this Court: the first in line is the decision in Nilabati Behera v. State of Orissa , wherein this Court relying upon the decision in Rudul Sah Rudul Sah v. State of Bihar , decried the illegality and impropriety in awarding compensation in a proceeding in which the court's power under Arts.32 and 226 of the Constitution stands invoked and thus observed that it was a clear case for award of compensation to the petitioner for custodial death of her son. It is undoubtedly true, however, that in the present context, there is no infringement of the State's obligation, unless of course the State can also be termed to be a joint tort-feascr, but since the case of the parties stands restricted and without imparting any liability on the State, we do not deem it expedient to deal with the issue any further except noting the two decisions of this Court as above and without expression of any opinion in regard thereto.
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28. Currently judicial altitude has taken a shift from the old draconian concept and the traditional jurisprudential system affectation of the people has been taken note of rather seriously and the judicial concern thus stands on a footing to provide expeditious relief to an individual when needed rather than taking recourse to the old conservative doctrine of the civil court's obligation toaward damages. As a matter of fact the decision mD.K.Basu, , has not only dealt with the issue in a manner apposite to the social need of the country but the learned Judge with his usual felicity of expression firmly established the current trend of "justice-oriented approach". Law courts will lose their efficacy if they cannot possibly respond to the need of the society --
technicalities there might be many but the justice-oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice.
In Chairman, Railway Board and Ors. v. Chandrima Das and Ors. the Supreme Court has held that where the matter relates to violation of Fundamental Rights or the enforcement of public duties, the remedy would still be available under the Public Law domain notwithstanding that a civil suit could be filed for damages under the Private Law. Under Article 51A(i) of the Constitution of India it is the fundamental duty of every citizen to abjure violence and to safeguard public property. It cannot be gainsaid that the acts alleged against respondents 3 and 4 and their members tantamount to blatant violation of this fundamental duty. In the case of the victims also, among other rights, it is the fundamental right guaranteed under Article 21 of the Constitution which has been nakedly invaded.
9. Except to the extent allowed by the industrial and labour laws, there is no statutory or inherent right to strike available to citizens including political parties so as to enable them to curtail the fundamental and other rights of fellow citizens. It is well settled that right to strike is not a fundamental right (vide Radhey Shyam v. P.M.G., Nagpur ; HMT Ltd. v. HMT Head Office Employees Association (1996) 2 SCC 319; Communist Party of India v. Bharat Kumar (1996) 1 SCC 201 and T.R.Rangarajan v. Government of Tamil Nadu 2003 (3) KLT 86 (SC) : 2003 AIR SCW 3807. Even in the case of persons covered by the public services, far from recognising a right to strike, there is a statutory prohibition against going on strike (vide R.86 of the Kerala Government Servants Conduct Rules, 1960 made under the proviso to Art,309 of the Constitution of India). Similarly, Rule 77(b)(2) of the said Conduct Rules affords the Government a right to withdraw the recognition granted to a service association if it resorts to strike or threat of strike. There are similar provisions governing teachers of educational institutions in Rules 58, 51(b)(2) and (3) of Chap.XIV-C of the Kerala Education Rules, 1959. In Rangarajan's case (supra), the Apex Court has very emphatically ruled that a government servant has no fundamental, statutory or moral right to go on strike. After the decision of the Apex Court in State ofAndhra Pradesh v. Chella Ramakrishna Reddy AIR 2000 SC 2083 the defence of sovereign immunity in torts is no longer available to the State and its functionaries. In T.Gangadhara Pillai v. State of Kerala and Ors. 1995 (2) KLT 201 it was held that the State would be liable to compensate the loss caused to a person on account of mob attack and looting of his establishment and the resultant failure on the part of the police to render the necessary help. But there may be cases where even the State may be helpless to some extent when there is a mass civil disobedience exhorted by political parties through firey speeches and inflammatory rhetoric which are more than sufficient to ignite the fickle minded masses.
10. No person has a right to hold the public to ransom or disable his fellow citizens from their daily pursuits which are intended to be carried out peacefully and according to their free will and pleasure. Instances of persons dying due to inability to get medical succor, attack on loyal and willing entrepreneurs, employers, employees, workers, daily wage earners, pedestrians and motorists either by the promoters of this crippling barbarism or by anti-social elements who exploit the situation, are frequent sights known to every member of the public in this literate State claimed as 'God's own country'. Every time such call for strike are made, there is no genuine attempt from the State Government and its instrumentalities to defeat the call and to pave the way for orderliness. Instead, the public transport system is very often withdrawn and police personnel are posted on the streets and other public places as if there is passive Governmental support for the strike. All public establishments and similar bodies follow suit. Owners of all categories of motor vehicles withdraw their vehicles from the road. Traders keep their shutters down. This is all done not as a gesture of solidarity to the strike, but out of fear of damage to their valuable assets and even lives. Very often it is announced by the callers of general strike that essential services are exempted from such strikes. Who are they to grant or disallow exemptions? Notwithstanding the decision of a Full Bench of this Court in Peoples Council for Social Justice v. State of Kerala 1997 (2) KLT 301 holding that taking out processions in a manner blocking the entire road for vehicular and pedestrian traffic violates the fundamental rights of citizens, it is, alas, a frequent sight, particularly in the State capital, to find even pygmy processions blocking the entire road. Instead of obeying the binding court verdict and taking action against the violators, the police conduct themselves as though they extend all support for the demonstrators who obstruct with impugnity the smooth traffic along the road meant for the same. The police act as culpable abettors by piloting such processions and even by diverting the traffic without any notice before hand to the extreme hardship of the travelling public. By suspending the public transport system, postponing the examinations by universities and other educational bodies, adjourning interviews for appointment to public and private services etc. causing untold loss, suffering and hardship to the public, the State and its functionaries indirectly encourage the intimidatory rule of the unorganised (or disorgnised?) majority by a negligible but organised minority. The State in a democratic set up is the trustee for the welfare of the people. But on days when such vandalism is unleashed in response to such calls for general strike, the State is very often seen to take the stand of a silent spectator. The inertia, inaction, lethargy or even inability of the State and its functionaries during such occasions may be due to political reasons or inability to combat and contain such enforced paralysis and consequent atrocities. But that is poor solace to the public who are invariably at the receiving end.
11. When the State machinery does not function, the problems and hardships of the general public should not remain unredressed. As far as the public is concerned, it is not an excuse to be told that the failure is really not of the Government, but of the party in power and it will pay the price for its failure in the ensuing electoral battle. Those who instigate such general strikes and cripple the lives of the public are self-proclaimed violators of law including the sacrosanct Constitution of the nation. When there is inaction on the part of the State and its functionaries, the legal process cannot remain in suspended animation. There may be reasons, both revealed and unrevealed, for the State not to initiate appropriate action, both civil and criminal, against the exhorters and perpetrators of such vandalism. Hence it will be unjust to advice the victims of such barbarism to go to the civil court for redress by instituting suits for damages which may or may not fruitfully end in a decree in our multi-tier litigation hierarchy. Persons who trigger off such crimes and atrocities under the guise of giving expression to their protest should anticipate the reasonable and probable consequences (including the vagaries by anti-social and extraneous agencies) of their exhortations. A named offender alone can be brought to justice in a criminal prosecution the purpose of which is to punish the guilty. But experience shows that criminal justice very often fails in cases of insurgency and violence by a belligerant mob. The frailties of human identification generally play a vital role in such prosecutions with the result that those who are really accountable may go unpunished. But persons who instigate insurrection or violence for political or other motives and under the banner of a named organisation or political party, have to be made accountable for the devastating ravages of their action. Otherwise, lawlessness would be the result and even law-abiding citizens may take law into their hands out of frustration for the failure of the system. Cuit of violence cannot be in the agenda of any person, organisation or political party.
12. It is always easy to blame the Government for any act of organised violence and make the Government liable for pecuniary compensation to the victims. If in one case the Government is ordered to recompense a victim, on what principle could it be prevented from not constituting a precedent in other cases? In that event the enormity of compensation is a matter for everybody's concern. It is the public money (that could have been better utilised) which is doled out (or frittered away) from the exchequer for the vandalistic conduct of a microscopic section of the public perpetrated against their own brotheren. Can the system afford this and, if so, how long and to what extent? In an appropriate case we may even be constrained to direct the instigators and perpetrators of such vandalism to adequately compensate the Government, its agencies, public sector undertakings, universities and other public service providers for the loss suffered, inability or helplessness experienced due to such paralysing misadventures attempted by agencies including political parties which give exhortation for activities which are either anti-social or public-unfriendly.
13. We, therefore, direct respondents 3 and 4 to jointly and severally pay to the 2nd petitioner a sum of Rs. 10,1507- as assessed in Ext.P6 survey report by way of compensation within one month from today, failing which it shall be open to the petitioners to initiate appropriate action including proceeding for contempt of court to implement this judgment. Respondents 1 and 2 shall also provide adequate police protection to the petitioners in the wake of the constant threat and intimidation by respondents 3 and 4 as and when necessary.
In the result, this Writ Petition is allowed as above.