IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 529 of 2001 Judgment reserved on : 8.9.2011 Date of decision: 18.10.2011 Jeetindera Singh …Appellant. Versus State of H.P. and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the appellant : Mr. Sanjeev Kuthiala, Advocate. For the respondents : Ms. Ruma Kaushik, Addl. A.G. with Mr. J.S. Rana, Asstt. A.G. Kuldip Singh , Judge The plaintiff has come in second appeal against judgment, decree dated 18.8.2001 passed by learned District Judge, Mandi in Civil Appeal No. 2 of 1998 reversing judgment, decree dated 27.8.1997 passed by learned Senior Sub Judge, Mandi in Civil Suit No. 127 of 1992, 43/1995 decreeing the suit of the appellant for recovery of ` 40,000/- along with interest at the rate of 12% per annum and future interest at the rate of 6% per annum. 2. The facts, in brief, are that the appellant had filed a suit for recovery of ` 1,00,000/- against the respondents on the averments that the appellant is matriculate and was working as Conductor in September, 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 1990 on salary ` 1,000/- per month. He was hale and hearty unmarried aged 20 years at the relevant time. On 27.9.1990 he was coming from Tarna Temple, Mandi, he received bullet injury on his hip joint in Mohalla Thanehra, Mandi. He fell down and was removed to Civil Hospital, Mandi where he remained admitted till 9.10.1990. 3. The appellant after discharge from the hospital had been getting treatment as outdoor patient. The appellant due to bullet injury suffered 25% permanent disability. The police force deployed by the respondents in Mandi town on 27.9.1990 opened fire indiscriminately without caring for the lives of innocent persons. The injury suffered by the appellant was on account of rash and negligent act of the police force deployed by the respondents. The respondents as such were liable to pay damages for the negligent act of their servants. The appellant has lost his health, intellect and his future prospects have also been adversely affected. The appellant was unable to perform his duty and has lost his job. The appellant suffered physical and mental pain. The appellant has spent about ` 30,000/- on his treatment and the appellant has not recovered fully. 4. The appellant had served notice under Section 80 CPC on respondents and claimed ` 2,00,000/- damages for the injuries sustained but without any result. The appellant ultimately filed suit for recovery of `1,00,000/- damages on account of bodily injury, loss of earning capacity, loss of job, loss of future prospectus, bodily pain, mental shock, loss of health and money spent by the appellant on his treatment along with interest. 3 5. The respondents contested the suit and took preliminary objections of locus standi, cause of action, maintainability, want of notice, estoppel, the officials were performing sovereign function of the State and limitation. On merits, it has been stated that on 27.9.1990 at about 1.30 p.m. one Ramesh Chand Rana immolated himself at Gandhi Chowk, Mandi after addressing gathering. The agitators of Anti Mandal Commission got violent, started raising slogans and set on fire the government and private properties. The appellant was also member of unlawful assembly and was creating violence. The respondents had to use all lawful means to prevent mob from further arson and violence which was declared unlawful by the Duty Magistrate as required under Sections 129 and 130 Cr.P.C. There would have been complete blood bath had the administration would not have taken timely action. The appellant was injured due to police firing. He was taking active part in the violence and arson. He was admitted in hospital on 27.9.1990. The appellant was responsible for his mischievous act and was not entitled to any damages. The police had been performing sovereign function for saving the lives and property of the Government. The force was used in good faith. The appellant is not entitled to any damages. The replication was filed and stand taken in the plaint was reiterated. 6. On the pleadings of the parties the following issues were framed :- 1. Whether the plaintiff has sustained bullet injury as alleged? OPP 2. Whether the plaintiff is entitled to the recovery of the damages as alleged. If so, to what extent? OPP 4 3. Whether the plaintiff has no cause of action to file the present suit? OPD 4. Whether plaintiff has no locus standi to file the present suit? OPD 5. Whether this Court has got no jurisdiction to try and entertain the present suit? OPD 6. Whether this suit is not maintainable in the present form? OPD 7. Whether notice u/s 80 CPC has not been served upon the defendants? OPD 8. Whether plaintiff is estopped by his act and conduct to file the present suit? OPD 9. Whether the suit is within limitation? OPP 10. Relief. The issues No.1 and 9 were answered in affirmative, issue No.2 partly in affirmative and issues No. 3 to 8 in negative and the suit was decreed for ` 40,000/- along with interest at the rate of 12% per annum and future interest at the rate of 6% on 27.8.1997. In appeal, the learned District Judge on 18.8.2001 allowed the appeal, the judgment and decree dated 27.8.1997 of the trial Court were set-aside and the suit was dismissed, hence second appeal, which has been admitted on following substantial questions of law:- 1. Whether the learned Court below have mis-read and misconstrued the oral and documentary evidence on record, especially the statement of PW-1 Dr. R.S.Chandel, PW-2 Jeetindera Singh plaintiff? 5 2. Whether the State is liable for the damages for injuries caused by its servants, if the injuries would render a private employer liable and the said acts are not exercised by virtue of delegation of sovereign powers? 3. Whether the servants of State can plead of amnesty on the ground that the acts for which the liability would be there under the law of Tort, have been committed in the exercise of sovereign functions, without placing evidence regarding the factum of such delegated sovereign authority? 4. Whether the Civil Court is deterred from directing the State Government to award adequate compensation to the aggrieved, where the factum of injury and permanent disability due to the acts of the servants of the State have been proved, as also its negligence? 7. I have heard Mr. Sanjeev Kuthiala, Advocate, learned counsel for the appellant and Ms. Ruma Kaushik, learned Additional Advocate General and Mr. J.S.Rana, learned Assistant Advocate General for the State and have also gone through the record. Mr. Sanjeev Kuthiala, learned counsel for the appellant has submitted that the learned District Judge has erred in reversing the judgment and decree passed by the learned trial Court. The sovereign function of the State has been misinterpreted by the learned District Judge. The State is liable for the illegal acts of the police. He has submitted that in the facts and circumstances of the case, the State is liable to pay compensation to the appellant as held by the learned trial Court. He has relied judgment dated 6 29.8.2008 in RFA No. 92 of 2001 with Cross Objection No. 93 of 2001 State of H.P. and another vs. K.L.Malhotra and others. 8. The learned Additional Advocate General and learned Assistant Advocate General have supported the impugned judgment, decree. It has been submitted that the learned District Judge has rightly appreciated the material on record. No fault can be found with the impugned judgment, decree. The prayer has been made for dismissal of the appeal. 9. The substantial questions of law No. 1 to 4 noticed above, are inter-connected, therefore, all of them are taken up collectively for determination. The controversy is not much. The respondents have not denied that the appellant had sustained bullet injury in police firing on 27.9.1990. The respondents have taken the shelter of sovereign immunity. It has been submitted that police personnel in order to prevent the bigger loss of life and property use the force and opened fire so as to protect the public, private property and innocent lives. The police action of opening firing was taken into larger public interest and that too strictly in accordance with law. In case the appellant has sustained bullet injury, the appellant is not entitled to damages from the respondents as the action of the respondents is protected by sovereign immunity of the State. 10. That the learned trial Court has recorded a finding that there is no evidence to prove that before opening of fire warning was given to the crowd to disburse from the place. The act of the police was not warranted by the record and circumstances. The opening of fire by servants of the government was not only rash and negligent but the same 7 was also illegal and, therefore, the respondents are not entitled to any immunity. 11. The learned District Judge has held that once the act complained of is the result of the sovereign powers of the State Government even though there is nothing on record to show that the action of the State Government or its officers in opening firing was justified or not, it cannot be said that the State Government is liable. The learned District Judge agreed with the findings of the learned trial Court that the appellant had suffered injury as a result of police firing and there is no material on record to show that the appellant was participating in any unlawful act. The amount of compensation awarded can also not be said to be excessive in any manner and under the ordinary law, the appellant should have been awarded little more amount. The learned District Judge, dismissed the suit by holding that it was a case of sovereign immunity. 12. The learned District Judge has recorded a specific finding that there is nothing on record to show that action of the State Government or its officers in opening firing was justified or not. The Supreme Court in D.K.Basu vs. State of West Bengal AIR 1997 SC 610 has reiterated Smt. Nilabati Behera alias Lalita Behera as follows:- “Till about two decades ago the liability of the Government for tortuous act of its public servants was generally limited and the person affected could enforce his right in tort by filing a civil suit and there again the defence of sovereign immunity was allowed to have its play. For the violation of the fundamental right to life or the basic human rights, however, this Court has taken the view that the defence of sovereign immunity is not available to the State for the tortuous acts of the public servants and for the established violation of the rights guaranteed by Article 21 of the Constitution 8 of the India. In Nilabati Behera v. State (1993 AIR SCW 2366) (supra) the decision of this Court in Kasturi Lal Ralia Ram Jain v. State of U.P., (1965) 1 SCR 375 : (AIR 1965 SC 1039), wherein the plea of sovereign immunity had been upheld in a case of vicarious liability of the State for the tort committed by its employees was explained……..” 13. In State of Andhra Pradesh vs. Challa Ramkrishna Reddy and others AIR 2000 SC 2083, the Supreme Court has noticed N. Nagendra Rao & Co. vs. State of A.P. AIR 1994 SC 2663 wherein immunity of the State for sovereign functions has been explained as follows:- “But there the immunity ends. No civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of State as a juristic person, propounded in Nineteenth Century as sound sociological basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government at par with any other juristic legal entity. Any watertight compartmentalization of the functions of the State as `sovereign and non-sovereign’ or `governmental or nongovernmental’ is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for sake of society and the people the claim of a common man or ordinary citizen cannot be thrown but merely because it was done by an officer of the State even though it was against law and negligently. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a welfare State is not shaken. Even in America where this doctrine of sovereignty found its place either because of the `financial instability of the infant 9 American States rather than to the stability of the doctrine theoretical foundation’, or because of `logical and practical ground’, or that `there could be no legal right as against the State which made the law gradually gave way to the movement from, `State irresponsibility to State responsibility’. In welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non-sovereign powers for which no rational basis survives, has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity.” The Supreme Court ultimately has held as follows:- “This Court, through a stream of cases, has already awarded compensation to the persons who suffered personal injuries at the hands of the officers of the Government including Police Officers & personnel for their to tortuous act. Though most of these cases were decided under Public law domain, it would not make any difference as in the instant case, two vital factors, namely, police negligence as also the Sub-Inspector being in conspiracy are established as a fact. Moreover, these decisions, as far example, Nilabati Behera v. State of Orissa, (1993) 2 SCC 746: (1993) 2 SCR 581: AIR 1993 SC 1960: (1993 AIR SCW 2366): In Re: Death of Sawinder Singh Grover, (1995) Supp (4) SCC 450: (1992) 6 JT (SC) 271: 1992(3) Scale 34(2); and D.K. Basu v. State of West Bengal, (1997) 1 SCC 416: AIR 1997 SC 610: (1997 AIR SCW 233), would indicate that so far as Fundamental Rights and human rights or human dignity are concerned, the law has marched ahead like a Pegasus but the Government attitude continues to be conservative and it tries to defend it action or the tortuous action of its officers by raising the plea of immunity for sovereign acts or acts of State, which must fail.” 10 14. In State of Madhya Pradesh and another vs. Smt. Shantibai and another AIR 2005 M.P. 66 on the question whether the State Government is not liable to pay damages because of the doctrine of sovereign immunity, it has been held as follows:- “……… In welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and nonsovereign powers for which no rational basis survives, has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity. Maintenance of law and order or repression of crime may be inalienable function, for proper exercise of which the State may enact a law and may delegate its functions, the violation of which may not be sueable in torts, unless it trenches into and encroaches on the fundamental rights of life and liberty guaranteed by the Constitution. But that principle would not be attracted where similar powers are conferred on officers who exercise statutory powers which are otherwise than sovereign powers as understood in the modern sense. The suit for damages for negligence of officers of State in discharging statutory duty is maintainable, is also supported by Art.300. In view of the above legal position, the plea of sovereign immunity is not available to the defendants in the present case. The plaintiffs sustained injuries at the hands of police officers even though unwittingly. They deserve some compensation from the State to repair the damage done to them. They were innocent victims. The judgement and decree of the trial court are unassailable.” 15. In RFA No. 92 of 2001 with Cross-Objection No. 93 of 2001 State of H.P. and another vs. K.L.Malhotra and ors. decided on 29.8.2008 11 the same firing dated 27.9.1990 in Mandi town was in question. In para 26 of the judgment, it has been held as follows:- “The police and the administration was negligent in opening firing, which killed Karan Malhotra. There was gross violation of Article 21 of the Constitution. The State has no right to take away the life of a citizen except by following due process of law. The servants of the State if take law in their own hands and violate Article 21 of the Constitution then State is liable for the acts of its servants and in that situation cannot seek protection by pleading sovereign immunity. The servants of the State are expected to deal with the public with care and caution. They should handle the mob tactfully and should resort to force after careful assessment, firing should be strictly in accordance with law and that too as a last resort. The servants of the State cannot be permitted to take law in their own hands under the shelter of sovereign immunity. In view of facts and circumstances of the present case, the police had killed Karan Malhotra son of respondents No. 1 and 2 without any provocation on the part of the deceased. It has not been proved on record that Karan Malhotra had indulged in any act which provoked the police to fire at him causing his death. In these circumstances, the appellants have failed to bring their case within the ambit of sovereign immunity, in fact no case for sovereign immunity has been made out by the State.” 16. The trial Court has held that opening of fire by servants of Government was not only rash and negligent but the same was also illegal. The trial Court on facts has recorded a finding of fact that the firing was not justified. This finding has not been disturbed by learned District Judge. The learned District Judge has even recorded a finding that appellant is entitled to compensation more than ` 40,000/- but he denied the relief to the appellant on account of sovereign act. The learned District Judge has misconstrued and misinterpreted the sovereign immunity of the State. In RFA No. 92 of 2001 with Cross objection No. 93 12 of 2001 State of H.P. and another vs. K.L.Malhotra and others same firing dated 27.9.1990 was involved. In view of above discussion, it is clear that police was negligent in firing at appellant and therefore, in the facts and circumstances of the case the respondents are liable to pay damages to the appellant who was hit by bullet in police firing at Mandi town on 27.9.1990. The respondents are not entitled to take benefit of sovereign immunity and deny the damages to appellant. The substantial questions of law No.1 to 4 are decided in favour of the appellants. 17. In view of above discussion, the appeal is allowed, impugned judgment and decree are set-aside. The judgment and decree dated 27.8.1997 passed by learned trial Court are restored with costs throughout. October 18, 2011. ( Kuldip Singh ) (GR) Judge.