*THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE P.DURGA PRASAD +W.A.No.1407/2000 and WA(SR) No.102605/2000 %Dt. 31-12-2010 W.A.No.1407/2000 #1. State of Andhra Pradesh, represented by its Chief Secretary, Secretariat Buildings, Hyderabad and another. ..Appellants ..Petitioner V. ..Respondents $M/s. J.K. Traders of Ramakrishna 70 MM Theatre, NTR Estates, Abids , Hyderabad represented by its Proprietor N. Jayakrishna ..Respondent ! Counsel for the appellants : Sri S.Sriram, Spl.Govt., Pleader Representing the Advocate General ^ Counsel for respondent: Sri M.R. K. Chowdhary, Senior Counsel < GIST: >HEAD NOTE: ? Cases referred: 1. (1999) 1 SCC 741 2. (2002)7 SCC 478 3 (1999) 6 SCC 667 4 (2007) 8 SCC 748 5 (2006) 3 SCC 178 6 (2001) 8 SCC 151 7 (1993) 2 SCC 746=AIR 1993 SC 1960 8 AIR 1994 SC 2663 9 (1995) 3 SCC 42 10 (1994) 1 SCC 243 11 (2000) 2 SCC 465 12 (1997) 1 SCC 416 13 (2009) 5 SCC 212 14 (1996) 1 SCC 742 15 AIR 1989 Mad.205 16 AIR 1992 J & K 11 17 AIR 1996 ALL.355 18 AIR 1999 KARNATAKA 284 19 AIR 1999 PATNA 169 20 AIR 1996 KERALA 71 21 (2001) 4 SCC 452 22 AIR 1986 SC 180 23 1999 ACJ 225 24 2007 ACJ 177 25 (2000) 5 SCC 712 26 1994(1) ALT 341 27 (2005) 6 SCC 156 28 (1996) 1 SCC 731 29 (1996) 10 SCC 104 THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE P.DURGA PRASAD W.A.No.1407/2000 and WA(SR) No.102605/2000 Dt. 31-12-2010 W.A.No.1407/2000 1. State of Andhra Pradesh, represented by its Chief Secretary, Secretariat Buildings, Hyderabad and another. ..Appellants ..Petitioner V. ..Respondents M/s. J.K. Traders of Ramakrishna 70 MM Theatre, NTR Estates, Abids , Hyderabad represented by its Proprietor N. Jayakrishna ..Respondent The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE P.DURGA PRASAD W.A.No.1407/2000 and WA(SR) No.102605/2000 COMMON JUDGMENT (per the Honourable Justice A.GOPAL REDDY) WA No.1407/2000 under Cl.15 of the Letters Patent by (1) State of Andhra Pradesh, represented by its Chief Secretary, Secretariat Buildings, Hyderabad; (2) District Collector and District Magistrate, Hyderabad District, Hyderabad and (3) Commissioner of Police, Hyderabad, is directed against the judgment/order dt. 28-8-2000 allowing WP No.15050/1993 by the learned single Judge of this Court awarding compensation of one crore rupees for the damage of the property belongs to the writ petitioner on the aftermath of assassination of late Rajiv Gandhi. To put very shortly, the essential admitted facts, which give rise to filing of the writ petition, are thus: On the wide spread news about assassination of late Rajiv Gandhi, the then Prime Minister of this country on 21-5-1991, large scale violence erupted throughout the country including in the State of Andhra Pradesh, and twin cities of Hyderabad and Secunderabad on the night of 21-5-1991, where large scale destruction of property, private and public, in different parts of the State. On coming to know about the incident of assassination and since Sri N.T. Rama Rao was the leader of opposition, the Manager of Ahwanam Hotels, Mr. Ramanaiah expressing fear of possibility of some attack on NTR Estates at Abids reported to the police of Abids Police Station for providing necessary protection to safeguard the properties. According to the Commissioner of police-third respondent, Inspector of Police, Abids Police Station informed about the non- availability of police force at the police station, but around 23-30 hours, the then Commissioner of Police instructed Ramesh Kumar, S.I. of Abids Police Station to deploy police force at the house of Sri N.T.Rama Rao and also at N.T.R. Estates, Abids. Accordingly, police picket was posted at the residence of Sri N.T. Rama Rao at Abids. According to the petitioner, the police could not move in the matter and delayed the steps to be taken to protect the interests of NTR Estates including Ramakrishna 70 MM theatre. In the meanwhile, about 150 persons had gathered outside the theatre and while they were making attempts to enter into the N.T.R. Estates, Ramanaiah, Manager of Ahwanam Hotel passed on the information to various persons but could not receive any help from anyone especially from the police. Even police who came to the spot did not take steps to prevent the damage to N.T.R. Estates and played a second fiddle to the men in power and the mob gathered there were belonging to the Congress Party workers caused extensive damage to the theatre. The police did not take any positive action to prevent from causing damage to the theatre though it could have been possible. After the damage was caused, the Commissioner of Police deputed one Mr. Siva Shanker, Additional Commissioner of Police to enquire into the situation leading to the damage of the theatre. He conducted personal enquiry and submitted his report finding the police officers guilty of dereliction of duties and they have irresponsibly behaved in preventing the property in question. The Government of Andhra Pradesh appointed a Commission of Inquiry under Section 3 of the Commission of Inquiry Act, 1952 consisting of a single member viz., Sri Justice M.R.A.Ansari, a retired Chef Justice of Jammu & Kashmir High Court, through G.O.Ms.No.511, General Administration (Genl.B) Department dt. 22-8-1991 as one-Man Commission to enquire into the widespread incidents of violence involving destruction of properties occurred in several places in Andhra Pradesh following the assassination of Sri Rajiv Gandhi in Tamil Nadu on the night of 21-5-1001. The Commission submitted its report to the Government on 20-6-1992 with its findings in terms of the reference made to it. One Man Commission found that the violent reaction did not lead to attack on public property as generally happened but to attack on private property belonging to the members of the opposition parties in the State, especially Telugu Desam Party. According to the petitioner, the Commission found guilty of the police for dereliction of duty in preventing damage to the property in NTR Estates. The Commissioner of Police also found guilty of not taking action on the basis of the report of the Additional Commissioner of Police, Siva Shankar. The petitioner got the damage suffered was assessed through Insurance Loss Assessor. Based on which, the District Collector & District Magistrate, Hyderabad issued a certificate dt. 12-11-1991 certifying that the petitioner suffered a loss to a tune of Rs.1,51,50,000/-. Complaining the inaction on the part of the police, the petitioner filed the writ petition contending that the maintenance of law and order is the primary duty of the State and while enforcing law and order, prevention of crime is a primary duty of the State. Thus, the police and the State have totally failed to give protection to the property of the petitioner and in spite of approaching the police suspecting that unruly hooligans may took the advantage of the situation under their control and may ransack the property belongs to the opposition party leader, the police allowed the unruly hooligans in ransacking the N.T.R. Estates and set fire to it. As it is a violation of the fundamental right as well as constitutional right, the petitioner is entitled to compensation for the loss suffered by him on account of the inaction on the part of the police authorities. A counter-affidavit has been filed on behalf of the State of Andhra Pradesh by Special Officer (Law & Order) to Government of Andhra Pradesh, General Administration Department, Hyderabad stating that news about the assassination of Sri Rajiv Gandhi was received around 11 PM on 21-5-1991. The grief stricken people carried away emotions came out into streets to protest against the incident in several parts of the State. Unsocial elements indulged in some violent acts of arson and caused damage to private and public properties. Immediately, on receipt of the news, the State Administration had swung into action and a Special Control Room was opened at State Headquarters by 11 PM on 21-5-1991. It functioned continuously under the direct and personal supervision of the Chief Secretary. A core group of Senior IAS Officers was also drafted to monitor the law and order situation in all the Districts. The Collectors and District Magistrates were instructed over telephone personally from 11 PM onwards for taking all precautionary measures and for effective maintenance of law and order. The Director General and Inspector General of Police contacted all the senior police officers and gave instructions in that regard. The Army was called in and Flag march was arranged in selected places of Hyderabad on 22-5- 1991. The situation which was sufficiently grave on the intervening night of 21/22-5-1991 was effectively brought under control. An Official Committee was constituted with Sri Sarjit Ray, IAS as Chairman with three members to assess the damages caused to the private and public properties and to make suitable recommendations for relief. The Committee assessed the damage and submitted its report on 17-7-1991. Simultaneously, Sri Justice M.R.A. Ansari, a Retired Chief Justice of Jammu & Kashmir has been appointed as One Man Commission under the Commission of Inquiry Act, 1952 to inquire into the incidents following the death of Sri Rajiv Gandhi. The Committee, which assessed the damages, has reported a total number of 3017 cases of damage to private property and estimated the total value of damages at Rs.7.39 crores. The Committee has similarly reported 170 cases of the damage to public property, the estimated total damage of which is Rs.1.62 crores. The Government on examining the recommendations of the Official Committee, which assessed the loss, issued orders in G.O.Ms.No.497, General Administration (General.B) Department, dt. 12- 8-1991 extending relief in different category of cases. Exgratia as a grant was sanctioned and paid in cases of petty shops with annual business turnover upto Rs.20,000/-. Approximately an amount of Rs.50 lakhs was incurred by the Government towards payment of exgratia as a grant only. Concessions were extended to the damaged larger business establishments like rice mills/hospitals/petrol bunks/cinema theatres, but no exgratia relief will be paid to such establishments. They were granted the following facilities: (a) Waiver of Sales-tax/excise duty fur the period during which the establishment remained closed due to damages; (b) Deferment of collection of arrears of tax due from the establishments till 31-12-1991; (c) Loans shall be arranged by the collectors from Financial institutions at concessional rates if necessary by extending interest subsidy up to 50% which shall be borne by Government; (d) Interest-free margin money equal to 20% of the loan amount; (e) The total amount of margin money shall not in any case exceed Rs. 1. 00 lakh per unit; (f) The margin money requirements be assessed after deducting the insurance compensation received/receivable by the affected unit; (g) Steps offered to be taken to get the insurance claims of the affected establishments expedited by the Collectors concerned; (h) The margin money will be recovered in five equal annual instalments with one year maratorium; (i) The claim of the victims required to be screened by the Collectors and District Magistrates who shall verify the insurance claims received/receivable and determine the loan amount; (j) The Commercial Tax Department is to take judicial notice to closure of business establishments, which have been destroyed or damaged in the riots. (k) The ceiling on interest free margin money loan will be Rs.20 lakhs in case of cinema theatres. Number of officers in Police Department were kept under suspension, pending enquiry, and the memorandum of A.T.R. (Action Taken Report) was placed on the house on 18-12-1993. The petitioner-theatre was granted Rs.20 lakhs interest free loan and also certain other benefits. It is further stated that Sri N.T. Rama Rao, the father of the writ petitioner filed WP No.167/1993 before the Supreme Court seeking similar relief. (The same was dismissed for non- prosecution on 1-11-1996). There is no failure on the part of the District Collector, Hyderabad and Commissioner of Police, Hyderabad, who are part of the government machinery since they have taken all steps and measures to control the violence and within few hours the violence was curtailed. While denying the contention of the petitioner that the State is liable to pay compensation to the extent of full loss as assessed by the Government, the respondents submitted as follows: (a) Every citizen is responsible for the protection of his own life and property. The State cannot give guaranteed protection to every citizen in respect of these in all circumstances as such a guarantee is not feasible practically. But, however, in this case, the government has taken all steps to prevent the violence and within few hours, the situation was under control. (b) In an economy like ours where risk can be covered under insurance, the very fact that insurance is available would indicate that the state would not be responsible for hundred per cent protection for individual life, and property. At the same time, it is not denied that the State has no objection to maintain law and order. In view of the vast size of the country and the different fissiparous forces, it is not a practical proposition to expect the state to maintain a man to man cover to watch the life and property of every citizen. The citizens also shall observe their fundamental duties. (c) If any theory that the State is liable to pay compensation for any damages suffered by an individual is to be accepted, the burden on the rest of the community will be enormous and the State will have to impose an unbearably heavy burden of taxes and rates on other normal citizens who safeguard or insure their own properties. This will be iniquitous. (d) If the argument that the State is responsible to pay compensation for any damages suffered by an individual on account of a law and order problem is logically extended, the State would be liable to make good to the individual even the losses suffered on account of their or any other acts of individuals which is not a practical proposition. (e) Whatever ex gratia is paid is by its very nature "out of grace" on a humanitarian consideration being paid to tide over the immediate crisis and is in no way in the nature of compensation. In the additional affidavit filed by the writ petitioner on 10-4-2000, it was stated that the District Collector & District Magistrate, Hyderabad District, issued a certificate that the petitioner was attacked during the disturbances and the actual loss sustained by the petitioner was assessed at Rs.1,57,50,000/-. The Commission of Inquiry was of the view that the workers of the Congress Party and anti-social elements were responsible for the several incidents although no leader of the Congress Party had organized or instigated various acts of violence. In spite of acceptance of the report of the Commission of Inquiry by the Government after discussing it in the Legislative Assembly and in spite of Collector assessing the damage suffered by the petitioner in connection with the riots in question, the Government did not take any steps to pay compensation as demanded by the petitioner. The petitioner has not received any amount from the insurance company as some of the employees of the Insurance Company filed a writ petition and obtained stay of consideration of the claims. In the additional counter-affidavit filed on behalf of the second respondent, it was stated that the Collector had issued a certificate to the petitioner for availing the benefits of G.O.Ms.No.1509, Revenue (CT.III) Department dt. 1-10-1991, sanctioning relief to the victims who suffered loss of property in the violent incidents and to arrange for loans by the Collectors from Financial Institutions at concessional rates. The Government has sanctioned a sum of Rs.20 lakhs towards interest free margin money loan in terms of G.O.Ms.No.1509 as a special case to the petitioner, vide Government Memo No110647/CT.III dt. 7-3-91, and the same was drawn and paid by the Commercial Tax Officer, Sultan Bazar Branch, Hyderabad. The Entertainment Officer, Sultan Bazar Circle, Hyderabad has reported that M/s. Ramakrishna 70 MM theatre was closed from 22-5-1991 to 7-5-1992 and an amount of Rs.16,60,764/- towards tax has to be waived. The Commercial Tax Officer further reported that entertainment tax has not been levied since theatre was closed. Absolutely there is no material indicating the basis for issuance of certificate to the effect that the loss caused to the petitioner is Rs.1,57,50,000/- except the figure given by the petitioner in their letter dt. 1-11-1991. A learned single Judge of this Court after considering the rival submissions, was of the view that while considering the matter of compensation under Art. 226 of the Constitution of India, courts have to adopt the principle approximation and not the actuals and the compensation awarded must be fair and reasonable and commensurate with the damages and set backs faced by the victim. Since the petitioner did not invoke the common law remedy by filing a suit and if he is relegated to the civil Court for claiming damages now, the claim would be bared by limitation. Under those circumstances, the court feels that it is a fit case that the court should award appropriate compensation and accordingly awarded compensation of Rs.1 crore for the damages suffered by the petitioner making it clear that the petitioner shall refund the claim amount to the Government as and when received from the insurance company and directed the respondents to pay the said amount to the petitioner within a period of 3 months from the date of receipt of a copy of the order, failing which it shall carry interest @ 18 per cent from 7-10-1993, the date on which the writ Petition was admitted till the date of payment. Questioning the same, the present writ appeal No.1407/2000 has been filed by the respondents in WP No.15050/1993. One Mr. G. Malleswara Rao, a pubic spirited person (third party) filed WA (SR) No.102605/2000 seeking same relief. Sri Sriram, learned Special Government Pleader representing the Advocate General contended that in the absence of any specific averment pointed out that there is violation of fundamental rights guaranteed under Arts.14, 19 and 21 of the Constitution of India except making a general and vague allegation that the property of the writ petition was damaged, the learned single Judge is not justified in holding that since the petitioner had suffered huge loss on account of the positive inaction on the part of the State Machinery which resulted in gross violation of fundamental rights under Arts. 19 and 21 of the Constitution of India, he is entitled for reasonable and appropriate compensation. When the petitioner alleged failure of Government and its officials in protecting the properties from destruction out of large scale vandalism, it should be specifically pleaded how the attacks were made and what is the property which was damaged, and all these are matters that can be decided on specific pleadings and the evidence let in civil proceedings but the same cannot be the subject matter of enquiry under Art. 226 of the Constitution unless fundamental rights have been violated. Right to hold property is not a fundamental right and it is only the constitutional right under Art. 300A. All the cases on which reliance has been placed by the learned single Judge are cases decided where State or its officials infringed the fundamental rights guaranteed under Art.21 of the Constitution. Justice M.R.A. Ansari in his report concluded that the violent incidents were not organized by the Congress Party or their leaders much less by the Chief Minister or his Ministers but were spontaneous in nature, but however was of the view that the Congress workers were actively involved in all the incidents and the attack by them was against the members of the opposition parties and police must be held to be guilty of dereliction of duty and the Commissioner of Police, Hyderabad ought to have taken action on the basis of the report of the Additional Commissioner of Police and the finding recorded by the learned single Judge is contrary to the One-man Commission Report. The reason for issuance of certificate by the Collector was explained in the additional counter filed by the respondents to the additional affidavit of the petitioner that the certificate was issued only for the purpose of availing the benefits in terms of G.O.Ms.No.1509. Unless the petitioner establishes deliberate inaction on the part of the police, learned single Judge is not justified in awarding compensation in the absence of any objective material to assess the same. Further, the learned single Judge having held that matter requires evidence proceeded to award compensation on the ground that if the petitioner is relegated to the civil court for claiming damages, the claim would be barred by limitation. Since the petitioner can invoke Sec.14 of the Limitation Act, learned single Judge ought to have relegated the parties to the civil Court to claim damages for the inaction on the part of the police officials. Further awarding interest at 18% on the damages awarded is not in tune with the principles governing award of interest. Sri I.Mallikarjuna Sarma, learned counsel for the appellant in WA (SR) No.102605/2000 while adopting the arguments of the learned Special Government Pleader would contend that the discretion exercised by the learned single Judge awarding damages is improper unless negligence of the officers has been established in resulting damages. In all the cases referred to by the learned single Judge, the Supreme Court awarded compensation for deprivation of rights guaranteed under Art. 21, therefore damage caused to the property cannot be equated with infringement of right guaranteed under Art. 21 of the Constitution. Sri M.R.K. Chowdhary, learned Senior Counsel for the respondent-writ petitioner while sustaining the judgment under appeal would contend that it is the duty of the State to protect the property of all citizens and Art. 294 of the Constitution of India include tortious liability, and the Government of a state may sue or be sued by the name of the State in relation to suits and other proceedings under Art. 300 and State cannot disown the action of its officers and only public law remedy for such act is available to citizen but not by way of civil suit where constitutional rights of the citizen have been violated either due to the action of the State or inaction on the part of its officials. It is not possible for the petitioner to mention exact loss suffered by him in a petition filed under Art.226 of the Constitution, suffice it is established that damage was caused to the property due to the inaction on the part of the State Officials or dereliction of their duty. Once there is no dispute about the reports of Justice M.R.A. Ansari and Mr. Siva Shankar, in the absence of any material produced by the State in support of its contention that amount of damage claimed is exorbitant certificate issued by the Collector can be taken as basis for awarding compensation. For maintainability of the writ petitions, reliance is placed on the following decisions: 1. UTTAR PRADESH STATE COOPERATIVE LAND DEVELOPMENT BANK LIMITED VS. CHANDRA BHAN DUBEY[1] 2. RABINDRA NATH GHOSAL VS. UNIVERSITY OF CALCUTTA[2] 3. COMMON CAUSE (A REGISTERED SOCIETY) VS. UNION OF INDIA[3] 4. M. NAGA VENKATA LAKSHMI VS. VISKHAPATNAM MUNICIPAL CORP.[4] 5. SUBE SINGH VS. STATE OF HARYANA[5] 6. M. S. GREWAL VS. DEEP CHAND[6] After deletion of Art. 19 (1)(f) by inserting Art.300A, right to life includes right to hold property for his decent living and falls under Art.21 of the Constitution. Decent living is a right to life under Art.21. The successive Collector, without producing the record, cannot plead that certificate was issued on the request of the petitioner. I n NILABATI BAHERA V. STATE OF ORISSA[7] and N.NAGENDRARAO & Co., STATE OF ANDHRA PRADESH[8], the Supreme Court created new trend in the field of states liability to protect the precious fundamental and human rights of individual and uphold the Rule of Law. For the tortious liability of the State, reliance is placed on the following decisions: 1. NILABATI BEHERA V. STATE OF ORISSA (7 supra) 2.