Andhra HC (Pre-Telangana)
M.R.K. Sarma vs State Of A.P. And Others on 4 September, 2001
Equivalent citations: 2001(5)ALD685, 2001(6)ALT30
ORDER
1. The petitioner, who is an Ex-Serviceman and presently working in the Indian Bank, Koti, Hyderabad, filed this writ petition, seeking a writ of mandamus:
(a) declaring the action of the Station House Officer, Alwal Police Station, 3rd respondent herein, in taking away all his articles worth about Rs. 3.00 lakhs from his house and depriving him and his family members from using those articles as arbitrary, unreasonable and violative of Article 21 of the Constitution of India;
(b) directing the 3rd respondent to return all the articles to him or in the alternative to direct the 1st respondent-State Government to pay him an amount of Rs. 3.00 lakhs in lieu of the said articles;
(c) directing the Central Bureau of Investigation, 5th respondent herein, to investigate into the alleged violation of Article 21 of the Constitution of India; and
(d) directing the 1st respondent to pay Rs. 1.00 lakh to the petitioner as compensation for the violation of the Fundamental rights.
2. Having regard to the nature of the aforementioned reliefs claimed by the petitioner, I consider it appropriate to set out the case of the petitioners and that of the respondents.
3. The case of the petitioner, in brief, is as under:
The petitioner is an Ex-Serviceman and now he is working in Indian Bank, Koti. He was residing in a portion of the house of Sri M.P.V.R.L Prasad, the 4th respondent herein, at Kanajiguda, Alwal, Secunderabad, on a monthly rent of Rs. 250/- from 1994. The 4th respondent filed OS No. 410 of 1997 against him on the file of the Principal Junior Judge (East & North) Ranga Reddy District, for recovery of possession of the said house and for other reliefs, Even though he filed a written statement, that suit was decreed ex parte, on 22-3-1999. Subsequently, he filed two IAs, - IA Nos.1199 and 1200 of 1999 - seeking to set aside the ex parte decree and for stay of ex parte decree. Notices on those applications were served on the 4th respondent and the Counsel for the 4th respondent filed vakalat on 26-4-1999 in those applications. But, in the meanwhile, the 4th respondent filed EP No. 112 of 1999 for execution of the said ex parte decree i.e., for delivery of vacant possession of the suit schedule house and for attachment of T.V., Fridge, Almyrah, two fans and a two wheeler towards the amount due from the petitioner under the said decree. The trial Court by its order dated 23-4-1999 ordered execution of the said decree without even issuing a notice to him. On 11-5-1999 at about 7.40 a.m., the Bailiff, the 4th respondent and one Head Constable and two constables from the office of the 3rd respondent came to his house, served the warrant on him and had taken away all the articles in the house, including gold and silver articles, cash of Rs. 35,000/-, all worth about Rs. 3.00 lakhs, and threw him and his family members from the house with bare clothes and without chappals. The Head Constable also forced him and his wife to sign on a white paper for withdrawal of criminal case - CC No. 1710 of 1998 -pending on the file of the Court of the Judicial Magistrate of I Class, Medchal, against the 4th respondent herein. Hence, he filed the present writ petition.
4. The 3rd respondent, who is the Station House Officer of Alawal Police Station, Secunderabad, filed a counter-affidavit denying the allegations made by the petitioner. It is stated, inter alia, in that counter-affidavit that on 31-1-1999 at 11-15 a.m., Smt. M.L. Nirmala, wife of the petitioner, lodged a written complaint in their Police Station - stating that on the same day at about 8-30 a.m., when she came out of their house, 4th respondent and his wife picked up a quarrel with her, abused her in filthy language, threatened her with dire consequences and manhandled her - which was registered as a case in Crime No. 45 of 1999 for the offence punishable under Sections 506, 509, 323 and 354 1PC; that on the same day i.e., 31-1-1999, at 12 hours the wife of the 4th respondent herein also filed a complaint in their Police Station - stating that at about 8-30 a.m. the petitioner herein threatened her with dire consequences for filing a case against him by her husband and when she tried to escape from the petitioner and his wife, they manhandled her and tore her jacket - which was registered as a case in Crime No. 46 of 1999 for the offence punishable under Sections 506, 509, 323 and 354 IPC; that on 2-2-1999 the petitioner and his wife as well as the 4th respondent and his wife were arrested and they were sent to judicial custody; that on 11-5-1999 Sri Khaleel, Bailiff of the Court of the Principal Junior Civil Judge, East and North, Rangareddy District, approached him with a Warrant in EP No. 112 of 1999, dated 23-4-1999 and sought for Police protection for execution of the said Warrant; that he then deputed Sri Syed Ismail-HC 655 and Sri Narsimha Reddy - PC 1648 to assist the Bailiff in execution of the said warrant; and that on the same day at 4-30 p.m. the said Head Constable and Constable returned back to Police Station and reported that the Bailiff has executed the warrant against the petitioner. He denied the allegations of the petitioner that the Head Constable and Constable have taken away all the articles of the petitioner, including gold and silver and cash of Rs. 35,000/-, all worth about Rs. 3,00,000/-, and forced them to sign on a white paper for withdrawal of CC No. 1710 of 1998 from the Court of the Judicial Magistrate of I Class, Medchel, which was alleged to have been filed against the 4th respondent herein. He further stated that there is no criminal case with CC No. 1710/98 on the file of the Judicial Magistrate of I Class, Medchel; that a case in Crime No. 170/98 for the offence punishable under Section 324 IPC was registered in their Police Station on 24-5-1998 against the petitioner herein, which is pending before the Court of the Judicial Magistrate of I Class, Medchel, as CC No. 387 of 1998; that STC No. 321 of 1998 is pending trial before the said Court against the petitioner and the 4th respondent for the offences punishable under the provisions of the Town Nuisance Act and that the Mandal Revenue Officer, Malkajgiri, bound over both the parties on 21-10-1998 to keep good behaviour for a period of six months.
5. The 4th respondent, who is the landlord, also filed a counter-affidavit denying the allegations of the petitioner. It is stated, inter alia, in that counter-affidavit that he let out a portion of his house to the petitioner herein for a monthly rent of Rs. 500/- per month; that the petitioner was not paying him the rent regularly; that as the said portion was required for his personal use, he issued a notice to the petitioner for vacation of the said portion and payment of the rents due; that as the petitioner did not vacate the premises, he was constrained to file OS No. 410 of 1997 on the file of the Junior Civil Judge, East and North, Rangareddy District; that the said suit was decreed ex parte after recording his evidence as the petitioner and his Counsel did not attend the Court; that he filed a petition before the trial Court for execution of the said decree and the learned Magistrate ordered execution of the same; that on 11-5-1999 he along with Bailiff and Police people went to the petitioner and served him the warrant and informed him to vacate the premises, but the petitioner refused to vacate the same, thereupon the Bailiff removed all the articles of the petitioner and placed them outside; that the Bailiff also attached the articles mentioned in the warrant and requested the petitioner to take charge of the remaining articles, but the petitioner refused to take charge of them, then the Bailiff prepared an inventory of those articles, conducted a panchanama, placed all of them in a smaller room under lock and key and put his seal and deposited the keys in the Court. He denied the allegation of the petitioner that they forced him and wife to sign on a white paper and taken away all their articles.
6. The petitioner filed reply affidavits to the aforesaid counter-affidavits reiterating the allegations in the affidavit filed in support of the writ petitioner and giving a list of some more articles alleged to have been taken by the respondents.
7. Sri Potti Venkata Ramanarao, learned Counsel for the petitioner, while reiterating the averments in the petitioner's affidavit, submits that the action of the Police of the 3rd respondent and the Bailiff, in collusion with the 4th respondent, in taking away the petitioner's household articles, gold jewellery etc., and throwing away his family members with bare clothes and forcing the petitioner and his wife to withdraw the criminal case filed against the 4th respondent, is arbitrary and amounts to violation of the petitioner's fundamental rights guaranteed under Article 21 of the Constitution of India and, therefore, the petitioner is entitled not only for payment of Rs. 1,00,000/- as compensation from the 1st respondent, but also the other reliefs claimed by him in this writ petition. In support of the said contention, he placed strong reliance on the decisions of the Supreme Court in Nilabati Behera v. State of Orissa, and O.K. Basu v. State of W.B., 1997 (1) ALD (Crl.) 248 (SC)=(1997) 1 SCC 416.
8. The learned Government Pleader for Home, who appeared for the 3rd respondent, and Sri R. Raghunandan, Counsel for the 4th respondent, denied the allegation that the officers of the 3rd respondent, in collusion with the 4th respondent and the Bailiff, had taken away the household articles and gold jewellery of the petitioner while executing the decree. Counsel for the 4th respondent reiterated the averments in the counter-affidavit filed by the 4th respondent to the effect that on 11-5-1999 when the 4th respondent went to the petitioner along with the Bailiff and the Police people to serve the warrant and to request him to vacate the premises, the petitioner refused to vacate the same. Then the Bailiff removed all the articles from the petitioner's house and placed them outside. The Bailiff attached only those articles mentioned in the warrant and requested the petitioner to take charge of the remaining articles. Since the petitioner refused to take charge of them, the Bailiff prepared an inventory of those articles, conducted panchanama and placed all of them in a smaller room under lock and key, put his seal and deposited the keys in the Court. He also denied the allegation ofthe petitioner that the 4th respondent forced the petitioner and his wife to sign on a white paper to withdraw the cases filed against him. Counsel for the 4th respondent further submits that subsequently the ex parte decree granted in favour of the 4th respondent was set aside by allowing IA No. 1199 of 1999 filed by the petitioner and the trial Court had ordered restoration of the premises to the petitioner on condition of the petitioner depositing arrears of rent. But, the premises could not be restored to the petitioner, as he could not comply with that condition. Both the Counsel disputed the correctness of the contentions advanced by the petitioner's Counsel and further submitted that the petitioner is not entitled, in the facts and circumstances of the case, to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
9. I have given my anxious consideration to the contentions advanced on behalf of the petitioner, yet I am unable to accept them.
10. The principle, that the State is liable, vicariously, for the tortious acts of its officers and servants concerning violation of fundamental rights of a person and the doctrine of State immunity is not applicable to such cases, is now firmly established. See the decisions of the Supreme Court ' in Rudul Sah v. State of Bihar, , Saheti, A Women's Resources Centre v. Commissioner of Police, Delhi Police Headquarters, , Nilabati Behera v. State of Orissa, , D.K. Basu v. State of W.B. (supra), Common Cause, A registered Society v. Union of India, , Chairman, Railway Board v. Chandrima Das, .
11. From the aforementioned decisions, it can be seen that it is now well established that a claim for compensation for deprivation of life or liberty of a person, except in accordance with law, can be the subject-
matter of the Public Law Remedy either under Article 32 or under Article 226 of the Constitution of India.
12. In this context, I consider it appropriate to quote from the decision of the Supreme Court in D.K. Basu (supra):
"Para 54. Thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal Courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no straitjacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit"
(Italics supplied).
13. In a Common Cause, A registered Society (supra) a three Judge Bench of the Supreme Court, while referring to the earlier decisions of the Supreme Court, held thus:
"It will be seen that where on account of tortious act of the servant of a State, a person's fundamental right to life and liberty was violated, the Court granted damages and compensation to that person. The liability is based on the provisions of the Constitution and is a new liability which is not hedged in by any limitations including the doctrine of 'sovereign immunity".
Recently, the Supreme Court again reaffirmed the said principle in Chairman, Railway Board (supra).
14. However, the question that arises in this case is whether there is any deprival of the petitioner's fundamental right guaranteed under Article 21 of the Constitution. As already noted, the allegations of the petitioner that the Police people with the connivance of the 4th respondent and the Court Bailiff removed and took away all his household articles, including the cooking vessels, and jewellery were strongly disputed by the 3rd and 4th respondents. It is, thus, a disputed question of fact. The counter-affidavit filed by the 3rd respondent further shows that the petitioner and the 4th respondent lodged Police complaints against each other. Furthermore, taking the petitioner's case at its best, it cannot be said that he was deprived of his liberty. Even if it is assumed that his household articles and gold jewellery were taken away by the Police of the 3rd respondent, as alleged by the petitioner, that will only be a case of depriving the petitioner of his property. Now right to property is not a guaranteed fundamental right. Since it is not a case of violation of the fundamental rights of the petitioner, and, in particular, his rights that are guaranteed under Article 21 of the Constitution, the Public Law Remedy under Article 226 of the Constitution is not available to the petitioner and he has to workout his remedies under the General Law of the land. I do not also find justification, in the facts and circumstances of the case, to direct the CBI to investigate into the matter.
15. The decisions of the Supreme Court in Nilabati Behera and D.K. Basu (supra), relied upon by the learned Counsel for the petitioner, do not lend any support to the petitioner's case. Both the cases relate to custodial death and deprival of a person's fundamental right guaranteed under Article 21 of the Constitution. As already noted, such is not the case here.
16. For the aforementioned reasons, this writ petition is liable to be dismissed as not maintainable and it is accordingly dismissed. But, this order will not preclude the petitioner from initiating appropriate civil proceedings against the respondents, if he so chooses. No costs.