Rajasthan High Court - Jaipur
Nathulal Jain, Advocate And Ors. vs State Of Rajasthan And Ors. on 31 August, 1992
Equivalent citations: 1994ACJ1271, AIR1993RAJ149, 1993(3)WLC477
ORDER K.C. Agrawal, C.J.
1. This writ petition is a public interest litigation initiated by Nathulal Jain, Advocate, practising in the Rajasthan High Court at Jaipur. He has claimed the following reliefs amongst others:
"(i) to direct the State Government to pay a minimum compensation of Rs. two lacs per person in respect of all those persons who lost their lives during the course of riots which took place on 24th October, 1990;
(ii) to direct the State Government to pay minimum compensation of Rs. 30,000/- to persons who suffered injuries in the nature of loss of any limb or organ depending upon the gravity of individual suffered or in accordance with the principles incorporated under the Railway Accidents "Compensation" Rules, 1990.
2. A communal riot took place on 24th October, 1990 during the Bandh sponsored by a national party in which wide spread violence broke out in different parts of Jaipur city. According to the petitioner 19 persons lost their lives and 150 were injured seriously. In addition, to the aforesaid persons more than 200 shops had been looted or burnt totally and about 300 residential houses had been burnt partially.
3. The petitioner claimed that according to the newspaper reports the arson, looting, injuries and deaths were attributable to total failure of the administration. The deployment of force was inadequate and that the administration failed to make any arrangement to prevent break out of communal riots which was well anticipated.
4. On 25th October, 1990 according to the reports published in Times of India, Jaipur Edition the District Collector announced ex gratia payment of Rs. 5000/ - each to the kins of the deceased and Rs. 1000/- each for the injured. This payment was subsequently increased by the State Government of which a list has been filed along with the writ petition.
5. The petitioner claimed that compensation either to the families which lost one of its members during the communal violence or to the persons who were injured in different degrees had not been paid. He asserted that as the rules framed under the Railways Act, 1989, it provides immediate statutory compensation of Rs. two lacs for every citizen who lost his life during the course of accident irrespective of existence or otherwise of any neglect on the part of Railways, therefore taking the aforesaid amount as criteria the State Govt. should fix the compensation at that rate. The petitioner has further illustrated his claim by taking the figure announced by the State Government in the case of a riot which took place in Chittorgarh district in between Kanjar community on the one hand and another community on the other.
6. The writ petition has been contested by the State Government. The argument advanced by the State was that it was not liable to pay any compensation to the victims of the riot which arose in Jaipur and that the State Government had made all possible arrangements for prevention of the communal riots. Learned counsel for the State also alleged that Nathulal Jain, Advocate, was not entitled to get any mandamus for payment of compensation. It was asserted that the claim if any should be made by each individual separately by filing civil suit and that writ petition was not maintainable. The State contended that there could be no tortuous liability for acts of Government servants while discharging their sovereign functions.
7. I have heard learned counsel for the parties.
8. Hindu-Muslim conflict became a regular feature of Indian life. This was the feature which troubled Mahatma Gandhi and many other political leaders of the national importance.
9. In a letter to his friend Nehru poured out his heart, "I do not attach much importance to political squabbles, but the communal frenzy is aweful to contemplate. We seem to have been caught in a Whirlpool of mutual hatred and we go found and round and down and down this abyss." Nehru developed a hatred for religion and declared that religion had become like "the old man of the sea for us"; it had not only ''broken our backs but stultified and almost killed all originality of thought and mind". He was convinced that unless India got rid of "this terrible burden", it could not "breathe freely or do anything useful". In this he made no distinction between the "legitimate" and "illegitimate" offspring of religion. To Lenin religion might have been "the opium of people"; To Nehru it was just poison. -
10. In Criminal Law; Text and Materials by C.M.V. Clarkson and H. N. Keating (second edition) crime and punishment has been defined as under:
"The criminal law is not simply a series of moral commandments: thou shall not steal, etc. It is a series of legal commandments backed up with the threat of punishment, you must not steal and if you do you can be sent to prison for a maximum of 10 years. Thus an understanding of the function of the criminal law involves understanding the concept of punishment. Why do we punish? What do we hope to achieve thereby? Once the answer to these questions have been discovered, one can understand why we have a body of rules called the criminal law and what the purpose of those rules is. And further, one will be in a position then not only to understand the relationship of the various rules to each other, but also to evaluate, criticise and, if necessary, try and reform these rules."
11. The claim for money for the death, injury and burning of the house is by the petitioner for others.
12. In American Jurisprudence, Vol. 74 at page 620 the torts, in general, has been defined as follows:
"A tort is sometimes defined as a wrong independent of contract, or as a breach of duty which the law, as distinguished from a mere contract, has imposed. To the same general effect it bas been said that the distinguishing feature of torts as applied to legal actions is that they never arise ex contracts.
While no civil right can be predicated upon a mere violation of a criminal statute, the same act may constitute both a crime and a tort; however the crime is an offence against the public pursued by the sovereign, while the tort is a private injury which is pursued by the injured party."
13. From the above it would be found that compensation is payable to a person who receives personal injury. The phrase personal injury denotes injury to the body of a person, however, the word personal injury does not necessarily involve physical contact with the person injured. It may denote an injury affecting the reputation, conduct, manner and habits of a person. In the instant case the claim has not been made by the persons who received personal injuries or by the heirs and legal representatives of those who died in the riots. It was filed by the petitioner as one of public interest.
14. The existence of a legal right and of a legal duty are essential elements of a cause of action. It is a general principle of the common law that wherever the law gives a right it also gives a remedy for the invasion thereof. The damages must have, however, been done to a person who is claiming the same. The petitioner in the instant case has not suffered any damage.
15. Counsel for the petitioner urged that the present cause is of absolute liability, hence, the State Government should be liable to pay damages to the members of the families and those who suffered injuries irrespective of the fact that the petitioner himself had not received any personal injury in the riot which took place on 24th October, 1990. I am unable to accept this submission.
16. Liability in tort may be predicted upon an injury sustained as a result of an unlawful or illegal act, whether the injury is to the property or to the person. In the instant case neither was the injury suffered to the property of the petitioner nor was to his person, hence, a tort action cannot be maintained by the petitioner. In the instant case one of the facts is that although tort is a civil law but the petitioner, who has not suffered any damage, has brought the present writ petition.
17. The petitioner's counsel has cited number of decisions: Home Office v. Dorset Yachat Co. Ltd., (J970) AC 1004, Dutton v. Bognor Regis, Urban Dist, Council, (1972) 1 All ER 462, Bonnington Castings Ltd. v. Wardlaw, (1956) AC 613, etc. which in my opinion have no applicability to the present case.
18. The next question that arose before me was whether the State was liable to compensate the persons for whom the writ petition has been filed, irrespective of the fact that there did not exist any duty on the part of the State that the petitioner did not have any right to claim compensation for them.
19. A riot is simply an aggravated form of violent disorder. In order to establish convention the conduct must be 'tumultuous' as well as 'riotous'.
20. The violent disorder offence replaced the common law offence of unlawful assembly. This offence required (1) an assembly of three or more persons (2) a common purpose (a) to commit a crime of violence or (b) to achieve some other object, whether lawful or not, in such a way as to cause reasonable men to apprehend a breach of the peace; and (3) an intention to use or abet the use of violence.
21. It has been commented by the Attorney General in (Vol. 63 HC Deb, 9 July 1984 Col. 691) that the law of riot creates some grave evidential problems,
22. If the State has not been able to control the mob or riot, it should be condemned that it has failed to perform the duty which has fastened on it. Whatever arrangements could be made by the Government in the instant case for prevention of riot, it has come in paragraph 5 of the counter-affidavit in writ petition No. 1981 of 1991 that the Government has been always keen to prevent any riots from taking place. Even if anywhere such riots have sparked of, according to respondents' case the Government had rushed all its Police force aided with Magistrate and high officers and on many occasions the Ministers have rushed to the spot and see the riots are contained so that all avoidable possible damage to the property or person can be averted. I am, however, not called upon to give a concluded finding as the matter is under enquiry of a commission.
23. It has also been stated in paragraph 6 of the counter affidavit that since the Government is under no liability to give compensation to the riot victims, therefore, giving recompense to sufferers is not logical and this is also because the Government happens to be a welfare State otherwise if the people are committing riots, they have got to bear the brunt of it, for these riots take place in spite of the best efforts on the part of the State Government to check them and/or prevent them and/or contain them. No recompense, compensation can be asked for. It is only with a view to rehabilitate that the Government pays some ex gratia money in the form of grants and never by way of compensation and/or re-compensation.
24. Learned Addl. Advocate's General stated that whatever payment had been made to the victims of the present case that was an act of grace or favour. In other words there is no liability on the State to pay the same.
25. I have shown above that the petitioner personally did not have any right to claim compensation on the ground on which the writ petition was filed.
26. The petitioner has made a prayer for grant of mandamus which has been quoted above. Mandamus is a command issuing from a court of law in the name of State or sovereign, directed to some inferior court, requiring the performance of a particular duty therein specified. Mandamus is one that commands performance, however, it is not necessary that it is an extraordinary remedy which is available only in cases in which the usual forms of procedure or powerless to afford relief. Courts proceed with great caution in granting the writ. It is not a common means of obtaining redress but is available only in rare cases for causes that are really extraordinary.
27. It has been said in American Juris prudence 2d Vol. 52 at page 336, para 8, as follows:
"The writ of mandamus seeks to enforce the personal obligation of the individual to whom it is addressed; it rests upon the averred and assumed fact that the defendant or respondent has neglected or refused to perform a personal duty to the performance of which by him the realtor has a clear right. The writ does not reach the office, nor can it be directed to the office. It acts directly on the person of the officer or other respondent, coercing him in the performance of a plain duty. It is, therefore, in substance, a personal action against the respondent, and not one in rem against the office, or in the case of a duty owing by country commissioners, against the country. It is, however, a personal action against the officer only in the sense that its purpose is to compel action by the individual officer, but not to give remedy against him for an injury resulting from an imperfect or improper action. It necessarily follows that the fact that the writ is directed against the person, and not the office, that it cannot run to persons who are outside the State, and that in the absence of statutory provision to the contrary, the writ may abate on the death or retirement from office of the original defendant."
28. The petitioner filed the present writ petition claiming the aforesaid reliefs for others. In fact the writ petition is misconceived. Nobody is entitled to get relief or damages, he should have approached the civil court for recovery of the same. Further, the mandamus can be issued or employed to compel the performance of a clear statutory duty, when the administrative agency has unlawfully refused to undertake the duty at the request of a person intended by Parliament to benefit from it.
29. Mandamus can be used only in relation to a duty which as a public duty, is specifically enforceable. Such a duty it was decided in R. v. Kerrier District Council exp. Guppys (Bridport) Ltd., (1976) 75 LGR 129, C.A., occurs in Section 9(1) of the Housing Act 1957 which states that:
"Where a local authority .... are satisfied that any house is unfit for human habitation, they shall, unless they are satisfied that it is not capable at a reasonable expense of being rendered so fit, serve upon the person having control of the house, a notice requiring him'....to execute works specified in the notice."
30. Learned Additional Advocate General cited the following decisions which are as follows:
Lekhraj v. N. M. Shaha, AIR 1966 SC 334; it was held that a writ of mandamus may be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a violation on the part of the officer to discharge that statutory obligation.
31. AIR 1979 Mad 261. The applicant seeking writ of mandamus should have legal public right to perform and non-discretionary public duty by a person, against whom it is sought.
32. AIR 1987 SC 331: (1987 Lab IC447), State of Kerala v. A. Lakshmi Kutty, High Court recommended that names of persons for appointment of District Judge. Person recommended cannot ask for mandamus as he has no legal right to post.
33. AIR 1962 SC 1044, Calcutta Gas Company v. State of West Bengal. The person who has a legal right can apply for writ of mandamus. Extract from Head Note (b) is reproduced as under (at page 1047):
"Article 226 in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. The existence of the right is the foundation of the exercise of jurisdiction of the High Court under Article 226 tike Article 32 must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be released or modified."
34. AIR 1969 SC 783, Maganbhai Isharbhai Patel v. Union of India. The Supreme Court declines to issue a writ of mandamus except at the instance of a party whose fundamental rights are directly and substantially invaded or are in imminent daner of being so invaded.
35. AIR 1979 Mad 261, G. T. Venkataswami Reddy v. State of Tamil Nadu (at page 262):
"An applicant who seeks for a writ of mandamus which is a high prerogative writ should have a legal right to the performance of a non-discretionary legal duty by the person against whom the writ is sought. Even so, the right must be public right and the duty to be enforced must be of a public nature. An element of compulsion to perform the legal duty should be apparent on the record. The purpose of the writ is to compel action and not to undo what has been done. In all cases in which issuance of the writ is requested for, there should be a statutory duty on the part of the other party to be performed."
36. In Seervai's Constitutional Law of India Vol. II (1976 edn) it has been laid down :
"16.147. Indian decisions have cited with approval well-known descriptions of the writ of mandamus given in English cases, or adopted the following statement of the law in Halsbury:
"The writ of mandamus is a high prerogative writ of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice directed to any person corporation, or inferior court, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to supply defects of justice; arid accordingly it will issue, to the end that justice may be done in all cases where there is a specific legal right and no specific legal remedy for enforcing that right."
Halsbury has been quoted in this paragraph:
"16. 130. The existence of a right is the foundation of the jurisdiction of a court to issue a writ of mandamus . . . . "
37. Thus, in view of what has been stated, the petitioner has no locus standi for bringing the present writ petition nor there is any duty cast on any one of Which a writ of mandamus can be issued against any one.
38. I am of the opinion that the citations cited by learned Addl. Advocate General have substance, but I am not inclined to find any law laid down in the citation cited by the learned counsel for petitioner in this case which could help him.
39. In Hogg, Liability of the Crown, it has been observed:
"At common Jaw no action in tort lay against the Crown for wrongs expressly authorised by the Crown or for wrongs committed by its servants in the course of their employment. Moreover, the head of the department or other superior official was not, and is not, personally liable for wrongs committed by his subordinates, unless he has expressly authorised them, for all the servants of the Crown are fellow servants of the Crown and not of one another. On the other hand, the actual wrongdoer could, and still can, be sued in his personal capacity. In practice the Treasury Solicitor usually defended an action against the individual Crown servant and the Treasury as a matter of grace undertook to satisfy any judgment awarded against him for a tort committed in the course of his employment. If the actual wrongdoer could not be identified the Treasury Solicitor would supply the name of a merely nominal defendant for the purpose of the action, i.e., a person who, though a government servant, had nothing to do with the alleged wrong. But in Royster v. Cavey it was held that the court had no jurisdiction to try the case unless the subordinate named by the Treasury Solicitor was the person who apparently had committed the tort. Since the Crown is today one of the largest employers of the labour and occupiers of property in the country, this system of providing compensation for the victims of tort, committed by Crown servants in the course of their employment was plainly inadequate and, finally, some 20 years after it was mooted, the Crown Proceedings Act, 1947 put an end to Crown immunity in tort."
40. Learned counsel for the petitioner took the analogy of Indian Railways Act and submitted that in a railway by accident the person who dies, is entitled to receive rupees two lacs by way of compensation why the principle incorporated in the same could not be applied to a case of riot where the persons died on account of careless and negligence of the State Government. He urged that had the State Government made proper arrangement the deaths could be averted.
41. Section 82A of the Indian Railways Act makes the Railway administration liable to pay compensation in all cases of death or injury to the passenger caused by an accident up to the specified maximum of Rs. 50,000/-per person, whether or not such accident or injury has been caused by any wrongful act, on the part of the Railway or its employees.
42. The following points are to be noted under this provision:
(i) The liability of the Railway under this provision shall prevail 'notwithstanding any other provision of law to the contrary'. The application of the English common law or other Indian statutes has thus been excluded to defeat the provisions of this self-contained provision, where it is applicable.
(ii) The Railways is liable to pay compensation in all cases of accident to a train, whether due to collision, derailment or otherwise, irrespective of any negligence or wrongful act of the Railway.
(iii) The claimant for compensation would no longer have to prove negligence or default or wrongful act on the part of the Railway or its employees. The Railway has been made an insurer in respect of the passenger in case of injury or death caused to the passenger by any accident to the train in which the passenger was travelling. Proof of 'due care' would, thus be no defence to the Railway where this section applies.
(iv) The liability of the Railway to pay compensation to a passenger (or his dependent, as the case may be) would, however be limited to the following cases--
(a) Loss occasioned by the death of the passenger, provided he has died 'as the direct result of such accident;
(b) Personal injury caused to the passenger by such accident;
(c) Loss, destruction or deterioration of animals or goods caused by such accident, provided (i) they were owned by the passenger and (ii) they were accompanying the passenger in his compartment or on the train;
(d) The person in respect of whom the compensation is claimed must have been a 'passenger' in the train which met with the accident. There is however, difference in judicial opinion whether a trespasser should be entitled to claim compensation merely because he was on the train (even though unlawfully), it would seem to be unreasonable that he should be entitled to claim compensation from the Railway.
43. The analogy taken by the petitioner's counsel from the Indian Railways Act for claiming the compensation is mis-placed and mis-conceived. In the present case for damages I am not called upon to decide that controversy. It was not a case on contract for tort, like case for damages under Railways Act.
44. Learned counsel for the petitioner urged that all those considerations which are necessary for succeeding in a suit for recovery of damages in case of riots are not warranted in a writ under Article 226 of the Constitution as a writ is above those restrictions and prohibitions. It is an extraordinary remedy for which a person is entitled to get on proving that the State has failed to control the riots. That submission is not acceptable to me.
45. The judiciary exercises powers admissible to it at common law to extent the areas of public interest to grant the relief for recovery of money. It cannot extend the areas of public interest generally and in legal proceedings in particular. The responsibility for such extension and expansion has become a matter of political argument and debate and has fallen on the legislative branch of government, so that what social economic, financial or other activities should be regarded as coming within the parameters of the public interest, and if so to what extent and the method of their regulation, are largely matters that have to be enacted by Parliament and statutory instruments.
46. Learned counsel emphasised that Judges have a creative role when the plaintiffs or petitioners have made down the activists role to be placed in interpretation of statute. It cannot simply fold sleeves and deny to exercise powers which it has in granting the reliefs.
47. As to what should be the role of a Judge in the field of statute law it was said in Deport Steel v. Sirs :
"But in the field of statute law the Judge must be obedient to the will of Parliament as expressed in its enactments. In this field Parliament makes, and un-makes, the law : the Judge's duty is to interpret and to apply the law, not to change it to meet the Judge's idea of what justice requires. Interpretation does, of course, imply in the interpreter a power to choice where differing constructions are possible. But our law requires the Judge to choose the construction which in his judgment best meets the legislative purpose of the enactment.... only if a just result can be achieved without violating the legislative purpose of the statute may be Judge select the construction which best suits his idea of what justice requires,"
48. In 'Legal and Constitutional History of India' Vol. I, 1984 at page 279, the ancient Hindu Law, differentiating between the civil wrongs and crimes, has been discussed as under:
"As pointed out in the topic on crimes, the ancient 'Hindu law made a clear distinction between civil wrongs and crimes. Action for damages for loss or injury caused, in the case of civil wrongs, was the concern of the individual who suffered the injury or loss, whereas in the case of crimes it was the duty of the King (State) to take action on information given by any member of the public (Suchaka) or an officer appointed by the king (Sthobhaka). Some of the civil wrongs in respect of which action could be taken against the injurer are found incorporated under miscellaneous matters."
49. I am of the view that the arguments of the petitioner's counsel is not tenable and is rejected as such.
50. The prayers made by the petitioner in this writ petition in itself show that the petitioner is not specific as to whom the compensation has to be paid whether in case of death or injured permanent or otherwise. After the submissions have been made on behalf of the respondent State, the petitioner came out with the case that there was no doubt after the respondent State placed on record the names of the persons who died and the names of persons who were injured. If the petitioner relies on that information, he should have said somewhere cither in the rejoinder or by way of applying for amendment that the petitioner is bound by what has been said by the Government in its counter and moreover he should have then also made his position clear whether he would depend upon the enquiry made by the State in the matter of the persons whose lives were lost and who suffered injuries.
51. The petitioner cannot claim any compensation from the Government qua the parties from whom he holds no brief and right to realise on their behalf. The parties may wriggle out and may at any time say that the petitioner was no one to espouse their case. It is by now very commonly known that even in a compromise made by the Government in Bhopal Gas Tragedy case the compromise was challenged though later it was upheld by the Hon'ble Supreme Court but still some part of the compromise relating to the criminal offence committed by the Union Carbide was taken out of the performance of the compromise.
52. For the reasons given above the writ petition fails and is dismissed.