Andhra HC (Pre-Telangana)
Government Of A.P. And Ors. vs Thota Jangaiah on 1 October, 2002
Equivalent citations: 2002(6)ALD12, 2002(6)ALT56
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT Ar. Lakshmanan, C.J.
1. In a case where damages are caused to the private properties of a person leased out to the Government on account of the acts committed by the third parties, whether the lessor has any right to claim compensation or damages from the tenant-lessee for the loss sustained by him under the Public Law Remedy, is the question that arises for consideration in these two appeals filed against the order of the learned single Judge in WP No. 12679 of 1992.
2. The parties will be referred to their status in the writ petition.
3. The factual matrix of the case is that the petitioner had let out his house bearing No. 11-131/1 situate at Chandur village, Nalgonda District to the State for accommodating the Office of the Mandal Revenue Officer, Chandur. The tenanted building was burnt by the naxalites on 19.9.1990 resulting in damage to the slab and walls. The furniture and the records in the office were also burnt. He filed a petition before the Government for grant of compensation to the extent of loss sustained by him. The Executive Engineer (R&B), Nalgonda vide his Letter No. DB/D3/91/92/4423/6 dated 20.7.1991 submitted report to the Collector estimating the damages caused to the building at Rs. 2,40,000/-. According to the petitioner, the Collector in his Letter No. C1/14650/90 dated 30.8.1991 recommended to the Secretary and Commissioner of Land Revenue for sanction of compensation. However, the Government issued G.O. Rt. No.2564 G.A. (SC.A) Department, dated 18.6,1992 sanctioning Rs. 20,000/- only as an ex gratia towards loss sustained by him. Petitioner states that in similar cases of damages caused to the private buildings by the acts of the naxalites, the Government in G.O. Ms. No. 231, G.A.D. dated 30.3.1991, awarded compensation as per the estimates given by the Executive Engineer concerned and recommended by the Collector, but in his case such a procedure was not adopted. Challenging the action of the Government in awarding the meagre amount of Rs.20,000/-, petitioner has filed the aforesaid writ petition for the following relief:
To direct the respondents to pay a sum of Rs.2,40,000/- towards compensation to the petitioner herein for the loss sustained by him on account of the damage caused to his building due to the same having been burnt up by the Naxalites/Radicals by declaring the said G.O. Ms. No. 139, dated 13.3.1992 and G.O. Rt. No.2564, dated 18.6.1992 as illegal by way of issue of a writ of mandamus or any other appropriate writ, order or direction.
4. A learned single Judge of this Court by the order under appeal dated 16.11.2001 passed the following order:
Though Rule Nisi was issued as long back as on 30.9.1992, the respondents did not chose to file any counter-affidavit.
Having regard to these facts and circumstances of the case, I consider it appropriate to issue writ of mandamus directing the respondents to pay compensation as assessed by the Executive Engineer, R&B Nalgonda and recommended by the District Collector.
The writ petition is accordingly disposed of.
5. Aggrieved by the aforesaid order, while the State has preferred WA No. 64 of 2002 against the order directing payment of compensation of Rs. 2,40,000/-to the petitioner, the petitioner has filed WA No. 251 of 2002 in not granting interest by the learned single Judge on the amount directed to be paid. The petitioner has also filed WAMP No.446 of 2002 in WA No.251 of 2002 for payment of compensation of Rs. 2,40,000/- pending disposal of the appeal.
6. With the consent of the learned Counsel appearing for the parties, we have heard the appeals together and are being disposed of by this common order.
7. Mr. Vilas V. Afzalpurkar, the learned Counsel appearing for the petitioner has vehemently contended that it is the bounden duty of the State to maintain the property leased out and handover the same to the owner after expiry of the lease period in tact. The concept of payment of ex gratia would arise only when the owner is in occupation of the property and the same is destroyed due to the natural calamities and therefore the question of adopting such policy amounts to grave injustice, In support of his contention he placed reliance on the decisions of the Madras High Court in R. Gandhi v. Union of India, , and the decision of this Court in J.K. Traders, Hyderabad v. State of A.P., .
8. The learned Advocate-General appearing for the State would submit that there is a limited area in the realm of Public Law actions where the Supreme Court has evolved a remedy by way of compensation only in cases of deprivation of human rights or fundamental rights guaranteed under the Constitution of India. Deprivation of fundamental right by the instrumentalities of the State is the only basis for granting compensation by the State. He further submitted that public law remedy is also confined to cases where the State is at fault like illegal detention, custodial deaths, etc., where compensation can be awarded by the Courts. In a case of the nature herein, no legal right is conferred on the citizen to seek for compensation. The State is not at fault for the acts committed by the anti social elements and naxalites though the State has the duty to maintain law and order in the State. He would also submit that damage to property is in the realm of mere tort and does not justify award of compensation in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India. Right to property is not a fundamental right guaranteed to the citizen. There is no contractual obligation under the tenancy agreement to reimburse the petitioner. In any case, the learned Advocate-General argues, that even in cases where the lessee is liable for any compensation for acts committed by the third parties, the remedy is only way of a suit and not by way of writ petition.
9. In support of his contentions, the learned Advocate-General has placed reliance on the following decisions of the Apex Court:
(1) Nilabati Behera v. State of Orissa, .
(2) Kasturi Lal v. State of U.P., .
(3) Paschim Banga Ket Mazdoor Samity v. State of W.B., .
(4) D.K. Basu v. State of West Bengal, .
10. There is no dispute that the building of the petitioner herein has been damaged due to the acts of the naxalites and the Executive Engineer, R&B, Nalgonda has estimated the damage caused to the building at Rs. 2,40,000/-.
11. Before we appreciate the rival contentions of the parties, it is apt to notice the orders issued by the Government in regard to amounts to be sanctioned to the victims of naxalites whose properties have been damaged.
12. It appears that the Government upon noticing the instances where extremists have damaged immoveable properties of some people and also such private buildings hired for Government Offices and on the representations made by the affected persons seeking compensation against such loss on the ground that the loss suffered is due to law and order problem, issued Memorandum No. 909/SC.A/90, dated 25.9.1991 which is to the following effect:
2. Government taking into consideration all aspects of the activities of extremists in the extremist infested areas, have decided that owners of private immoveable properties including those hired by the Government for housing Government Offices which were damaged by the extremists shall be paid ex gratia depending in the circumstances and merits of each case.
3. The following criteria shall be applied by the concerned authorities while assessing the damage and arriving at the amount of ex gratia payable.
1. The quality of the construction life of the building, extent of damage and approximate cost of the house in the area etc.
2. The assessment of (a) above should be made by an Officer of Roads and Buildings not below the rank of Executive Engineer; and
3. Whether the house has been insured and if so, the amount of claim preferred and received from Insurance Corporation.
In future, the owners of the private buildings let out for Government Offices in the extremist affected areas may be advised to get the houses insured.
4. The Collectors concerned should keep the above criteria in view and send their recommendations together with the assessment of Roads and Buildings authorities for considering the question of payment of ex gratia to the applicants whose applications are pending and in the case of future applicants also. They should also make specific recommendations about the quantum of ex gratia so payable.
13. Subsequently, the Government in order to have a uniform policy in the payment of ex gratia to the victims of extremists violence, in G.O. Ms. No. 139, G.A. (SC.A) Department, dated 13.3.1992 have decided as under:
Buildings (immovable properties) Those whose buildings (residential/ commercial) have been damaged by extremists, relief ex gratia to the extent of actual damage subject to a maximum of Rs. 20,000/- (Rupees twenty thousand only) shall be paid in each case subject to the norms prescribed in the Memo read above. Sanction of amount in these cases shall be obtained by the Collectors concerned.
14. Ordinarily, when loss is caused to the property leased out to a person by the acts committed by the lessee, if the lease provides for damages, the lessor is entitled to damages for loss suffered by him. Even in the absence of any provision in the lease deed, the lessor may sue him for damages if such acts have been committed intentionally and knowingly and not by the acts of God. In such cases, the lessor may sue him for damages for the tortious liability before the civil Court. He may also be vicariously liable for damages if loss had occurred due to the acts of the servant.
15. But the position may be different if the loss to the property has occasioned by the acts of the third parties. Whether in such cases, the lessee is liable for payment of damages for the acts committed by the third parties is the real question that arises for consideration.
16. If the lessee has knowledge and he has not taken any steps intentionally in order to cause damage to the property or he has encouraged the third party for such acts and not taken reasonable steps for prevention of such acts intentionally though he is capable of taking such steps, he may be held liable for damages for such tortious acts. But if the situation is beyond his control and he has no knowledge about the incident, he may not be held liable for any damages. Damages may also occur to the private properties due to natural calamities by acts of God and in such cases, the State is coming forward with payment of ex gratia to those persons who suffered by acts of God by payment of reasonable compensation.
17. Herein the analogy of relationship of master and servant cannot be brought in, hence the principle of vicarious liability has no application. Admittedly, the property has been leased out for accommodation of the Office of the Mandal Revenue Officer and there is no written lease. No doubt the State has constitutional duty to protect the life and property of the citizens of the State. But, it may not be possible all the time to provide security to the property of the citizens. In cases of arson and looting by the anti-social elements the immediate obligation of the State is to swing into action and take all necessary measures to safeguard the life and property of the citizens. In such cases, if there is failure on the part of the State to protect the life and property of the citizens though it is capable of taking all the immediate measures to prevent such acts, the State may be held liable for compensation if it is established in appropriate forum.
18. There may be cases where the Government may be held liable for the inaction on the part of their servants in protecting the life and property of the citizens under the Public Law remedy.
19. It is true that the naxalites are targeting the buildings where Government Offices are located and also properties of private persons whom they dislike. It is not always possible for the State to provide security to all Government Offices or private buildings in the naxalite infected areas due to financial constraints. The Government with the law and order machinery available at its disposal will always try to take all reasonable measures to safeguard the life and property of the people when there are incidents of violence by anti-social elements.
20. The learned Counsel appearing for the petitioner has strongly relied upon the decision of the Madras High Court in R. Gandhi v. Union of India, wherein the Madras High Court directed payment of compensation for damages caused to property of one community on account of arson and looting in wake of assassination of the then Prime Minister Smt. Gandhi on the ground that there was failure of State Government to protect the property and the victims are entitled to reasonable compensation. It was held, that the maintenance of law and order being the primary duty of the State, the State must compensate the victims for deprivation of the property caused due to arson and looting.
21. There cannot be any dispute that it is the duty of the State to maintain law and order and cannot abdicate its primary constitutional function as envisaged under Article 38 of the Constitution which enjoins on the State to strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social, economic and political shall inform all the institutions of the national life. It is also true that right to life guaranteed under Article 21 of the Constitution is not merely the right to personal liberty; it includes the right to livelihood. Right to health, right to water were also regarded as components of right to life by the Supreme Court under the expanded horizons of Article 21 of the Constitution.
22. In the instant case, the damage to the property had occurred due to the acts of the naxalites. The State is facing the problem of naxalism from the last more than three decades and inspite of its best efforts; it has not been able to contain it. It is not the case of the petitioner that inspite of the knowledge that the naxals are planning to cause damage to the property, the police machinery of the State had not taken immediate steps to prevent the damage to the property. No material has been placed on record to show that inspite of giving intimation about the incident, the State has not responded immediately to prevent the damage to the property. In this view of the matter, we are of the view that the decision relied on by the learned Counsel for the petitioner in R. Gandhi v. Union of India cannot have any application to the facts of the case. There is no material to show that there was failure on the part of the State to prevent the damage to the property.
23. J.K. Traders v. State of A. P., is again a case where large scale destruction of property had occurred to a Cinema theatre situated in NTR Estate, Abids, Hyderabad on 21.5.1991 in wake of assassination of former Prime Minister Sri Rajhiv Gandhi, The Additional Commissioner of Police who enquired into the matter submitted a report holding that the police officers are guilty of dereliction of duties and the police machinery had miserably failed to take effective action to prevent the mob from causing damage to the property. Mr. Justice M.R.A. Ansari, Retired Chief Justice of J&K was also appointed as one Man Commission to enquire into the circumstances leading to the violence and the findings of the commission are categoric that the police people are mere spectators to the incident and they are responsible for not arresting the damage to the property. Therefore, there was any amount of inaction on the part of the police in protecting the property though they had knowledge about the incident arid had prior intimation by the owner about the possibility of attack being made by the hooligans. On the above factual matrix, this Court held that there was failure on the part of the State machinery in preventing the unruly mob from destroying or damaging the property of a citizen and the State cannot claim sovereign immunity in the guise of discharge of sovereign functions in the case of tortious acts of its employees. It was also held that where there was positive inaction on the part of the police in taking proper security measures and where there was violation of the fundamental rights of the citizens, the State is liable to pay compensation.
24. In the instant case, it is not the case of the petitioner that though the police had been informed about the imminent danger to the property, the police had failed to take proper security measures to prevent the damage to the property. Further, it is not a case where no compensation has been granted by the State. Noticing the instances of extremists violence and causing damage to the immoveable private properties of the citizens. Government has taken a uniform policy to pay ex gratia to the victims of extremists violence to the extent of actual damage subject to a maximum of Rs. 20,000/-. The petitioner herein has been paid the maximum amount of Rs.20,000/-and received the same without any protest.
25. In cases where human rights are violated by the acts of police, under the Public Law Remedy, the Supreme Court directed payment of compensation to the victims. Such decisions, however, cannot be extended to have any application to all cases where properties of private persons are damaged due to the acts of third parties unless it is established that there was failure on the part of the State officials to protect the property even though they had the knowledge of the same.
26. Nilabati Behera v. State of Orissa is a case where the Supreme Court was dealing with the custodial death of a citizen aged 22 years who was earning Rs. 1,200/-to Rs. 1,500/- per month. The Supreme Court granted compensation of Rs. 1,50,000/- to the mother of the deceased for violation of human rights and directed adjustment of the said amount in the event of any other proceeding taken by the petitioner therein for recovery of compensation on the same ground.
27. In Kasturilal v. State of U.P., the Apex Court held that in cases where tortious acts are committed by public servants in course of employment and in exercise of statutory functions delegated to them by Government, the State is immune from liability and claim for damages is not sustainable. The decision has no application to the facts on hand.
28. Paschim Banga Khet Mazdoor Samity v State of W.B. is a case where there was denial of medical assistance to the petitioner therein by the State of West Bengal and the Supreme Court held that the failure on the part of the Government Hospital to prove timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21 of the Constitution of India and the State cannot avoid its responsibility for denial of the constitutional right of the citizen. The Apex Court directed payment of compensation of Rs.25,000/- to the petitioner therein.
29. D.K. Basu v. State of West Bengal is again a case dealing with the custodial violence. It was held that the victim of custodial violence and in case of his death in custody, his family members are entitled to compensation under Public Law in addition to the remedy available under private law for damages for tortious act of the police personnel. It was also held that the Supreme Court and the High Courts can grant compensation for breach of fundamental rights under public law in addition to private law remedy for tortious action and punishment to wrongdoer under criminal law. These decisions, in our considered opinion, have no application to the facts of the case. There cannot be any dispute about the grant of compensation to the victims for violation of their fundamental rights as held by the Apex Court in the aforesaid decisions.
30. No authority of the Supreme Court has been placed before us that in cases where the property has been damaged by the acts of the third parties, the affected party is entitled to compensation under the Public Law Remedy. We are of the view that no compensation can be granted under Public Law Remedy in exercise of the writ jurisdiction under Article 226 of the Constitution except in cases where grave injustice has been done by reason of violation of human rights or fundamental rights of the individual citizens as held by the Supreme Court in the aforesaid decisions.
31. The petitioner herein has not been able to establish that there was any amount of slackness on the part of the State to prevent the damage to his property even though the authorities are informed about the attack by the naxals or the possibility of the attack by them. Further, as already noted earlier, it is not a case where no compensation was granted to the petitioner. He was granted ex gratia of Rs.20,000/-. The Collector has not recommended for sanction of loss or damages sustained by the petitioner, estimated by the Executive Engineer, R&B, as compensation. He has only requested the Commissioner of Land Revenue to recommend for sanction of compensation in the matter. How much compensation can be granted to the petitioner in the circumstances of the case is the prerogative of the Government and no direction can be given in such cases to the Government. Based upon the loss assessed by the Departmental agency, the Government will have to take a decision as to what is the reasonable compensation that can be granted in a given case with reference to the guidelines in that regard.
32. As already noticed hereinbefore, the Government taking into consideration the overall situation prevailing in some parts of the State on account of the activities of the naxalites in causing damage to the private buildings of the people, has decided to grant ex gratia to the extent of actual damage, however, subject to a maximum of Rs.20,000/- only subject to the norms prescribed in Government Memo dated 25.9.1991 referred to supra. In such cases, no mandamus can be issued to the State to grant compensation in a particular manner. The Court in exercise of the writ jurisdiction cannot play the role of the State to assess the compensation payable and direct payment of compensation. No doubt damages estimated by the Executive Engineer (R&B) are to the extent of Rs.2,40,000/-. The Collector has not specifically recommended that the petitioner is entitled to compensation to the said extent. It may be noted herein that irrespective of the quantum of damages arrived at by the concerned authority, the maximum amount payable in such cases is only Rs.20,000/-. If the State has committed any omission or commission and liable for any damages, the individual would always be at liberty to approach the appropriate forum and establish his case for damages. The petitioner has not produced any material to show that in similar cases compensation has been awarded as per the estimates given by the respective engineers. No foundation has been laid to interfere with the policy decision taken by the Government in G.O. Ms. No. 139, dated 13.3.1992 for payment of ex gratia. We reject the contention of the State that it has no legal obligation whatsoever to reimburse the damage suffered by a citizen for loss of property due to the acts committed by the anti-social elements or naxalites. As already held, if there was failure on the part of the officials of the State to protect the property of the citizens even though they had the knowledge, the State cannot plead sovereign immunity.
33. For the reasons aforesaid, we are of the view that it is not a fit case where this Court in exercise of the jurisdiction under Article 226 of the Constitution direct the Government to pay compensation as estimated by the Executive Engineer. The learned single Judge has, therefore, erred in issuing a mandamus for payment of the compensation under the Public Law Remedy as estimated by the Executive Engineer. Damages or compensation under the Public Law Remedy can be granted only in exceptional cases where there was violation of human rights and the principles laid down by the Apex Court in various cases referred to above cannot have a general application to all cases.
34. It has been vehemently argued by the learned Counsel appearing for the petitioner that since the Collector has recommended for payment of Rs.2,40,000/-as estimated by the Executive Engineer, the said recommendation is binding on the Government and therefore the Government should order payment of the same as compensation. The said contention, in our opinion, is far fetched. Even if the Collector has recommended for payment of compensation, it cannot be said that it is binding on the Government. The ultimate authority vests with the Government to offer suitable compensation having regard to the facts and circumstances of the case. Hence this plea is rejected.
35. In the view we have taken, the writ appeal filed by the petitioner in not granting interest by the learned single Judge on the amount directed to be paid as compensation is liable to be dismissed.
36. For the foregoing reasons, we are of the opinion that WA No.251 of 2002 filed by the petitioner fails and is accordingly dismissed. WA No.64 of 2002 is allowed and the order of the learned single Judge is set aside. We hold that the petitioner is entitled to only Rs.20,000/- in accordance with G.O. Ms. No.139 G.A. (SC.A) Department, dated 13.3.1992. However, we make it clear that the amount granted as ex gratia shall be given adjustment in the event of any other proceeding taken by the petitioner in any forum for recovery of damages. There shall be no order as to costs.