P. K. MISRA, J. ( 1 ) W. P. No, 2705 of 1999 has been filed for issuing a writ of certiorarified mandamus calling for the records relating to the order of the 2nd respondent passed in G. O. Ms. No. 1834 (Law and order P) Department, dated 6-11-1998 and quash the same in so far as the fixation of the compensation to the tune of Rs. 2 lakhs only and directing the respondents to sanction and pay a sum of Rs. 1. 84,42,775/- as ascertained by the Enquiry Commission headed by Thiru v. K. Thirunavukarasu, District Judge in his report dated 25-6-1997 forthwith with interest. W. P. No. 6163 of 1999 has been filed for issuing a writ of certiorarified mandamus calling for the records relating to the order of the 2nd respondent passed in G. O. Ms. No. 1834 (Law and Order P) Department, dated 6-11-1998 and quash the same in so far as it restricts the compensation to Rs. 2 lakhs only and directing the respondents to pay a sum of rs. 85,74,000/- to the first petitioner as compensation as recommended by the One Man commission headed by in its report dated 25-6-1997 forthwith with interest. W. P. No. 10146 of 1999 has been filed for issuing a writ of mandamus directing the respondents to pay Rs. 70,00,000/- as damages to the petitioner for the loss sustained by the petitioners during the mob violence and riot which took place on 10-5-1996 at Tuticorin. ( 2 ) BEFORE considering the question referred, a brief narration of the facts as culled out from the order passed by the learned single judge is called for. On the eve of the Assembly Elections, there was a communal clash in Thoothukudi town on 9-5-1996 between Baradhavar (Fernando)and Nadar communities, which continued unabated for a few days. On 11-5-1996, there was a police firing, resulting in the death of few persons. During such rioting, large scale of arson and looting took place, resulting in damages to properties to several persons belonging to the two groups. Thereafter, the people belonging to business class of Tuticorin shut down their shops from 16-5-1996 demanding adequate police protection and payment of compensation to those who had sustained loss due to such communal clash. During such rioting, large scale of arson and looting took place, resulting in damages to properties to several persons belonging to the two groups. Thereafter, the people belonging to business class of Tuticorin shut down their shops from 16-5-1996 demanding adequate police protection and payment of compensation to those who had sustained loss due to such communal clash. At that stage, the Government of Tamil Nadu in exercise of the powers conferred under S. 3 (1)of the Commissions of Inquiry Act, 1952, constituted a Commission of Inquiry headed by a District Judge. The terms of reference were as follows :- (i) To inquire into and report the cases and circumstances that led to the clashes between two communities in Thoothukudi from 10-5-1996 and subsequent occurrences of law and orders disturbances. (ii) To inquire into and report the causes and circumstances that led to the opening of fire by the Police on 11-5-1996, and as to whether the Police firing is justified. (iii) To inquire into and to identify the victims who sustained injuries and also the persons, who actually suffered loss or damages to property, business establishment, etc. , in the above mentioned violent incidents and to assess the extent of damages and to suggest the quarrtum of compensation to be paid to the victims. (iv) To recommend suitable measures to prevent such occurrences in future and also to suggest measures to maintain communal harmony and lasting peace. " the Commission in its report recommended for payment of compensation in respect of 186 claims. The Government by g. O. . MS. No. SS. II/495-5/97 Public Department dated (sic) 17-10-1997 "accepted the report of the Commission on principle" and forwarded the report to the respective departments for examination, particularly with regard to payment of compensation as suggested by the Commission. Subsequently, the Government in G. O. Ms. No. 1834 (Law and Order P)Department dated 6-11-1998, sanctioned compensation to 186 persons equal to the quantum of loss sustained by the claimants or Rs. 2 lakhs each, whichever is less. The petitioners in various writ petitions, whose loss were assessed by the Commission at much more than Rs. 2 lakhs, refused to receive such compensation and filed writ petitions claiming the amount indicated in such writ petitions. 2 lakhs each, whichever is less. The petitioners in various writ petitions, whose loss were assessed by the Commission at much more than Rs. 2 lakhs, refused to receive such compensation and filed writ petitions claiming the amount indicated in such writ petitions. ( 3 ) WHILE considering all these writ petitions, the learned single Judge by order dated 10-11-2000, has referred the matter to be placed before a larger Bench. The terms of reference are as follows :- "8. Considering all the above aspects and in view of the fact that the decisions referred to above relate only to compensation for the loss of life and no decision fixing the responsibility of the State for payment of compensation for the loss of property of the citizens was put forth before this Court except the decision in "coimbatore case" and also in view of the fact that the issue had not been seriously raised before the Division Bench of this Court in Writ Appeal No. 314 of 1989 dated 8-12-1998 and considering the happenings of frequent communal clashes now-a-days in many parts of the State, involving loss of valuable life and damage to properties, I am of the view that an authoritative decision is called for by a larger Bench of this Court. It has to be considered in view of the deletion of Art. 19 (l) (f) of the Constitution, viz. , right of a citizen to challenge (sic) the freedom of property from Chapter III of "fundamental rights," whether it is obligatory on the part of the State to compensate the entire loss caused to the properties of citizens due to communal clashes etc. " ( 4 ) IN the above background, the matters; have been now placed before the Full Bench. ( 5 ) MR. R. Gandhi, learned senior counsel appearing for the petitioner in W. P. No. 2703 of 1999, submitted at the threshold that the learned single Judge should not have referred the matter to a larger Bench as the single judge's decision of the Madras High Court, reported in 1988 WLR 213 : AIR 1989 Mail 205 (R. Gandhi v. Union of India),which was confirmed in appeal by the Division Bench, was holding the field and the learned singk judge, who is bound by the earlier decision approved by the Division Bench, should have followed such decision and granted compensation. In this connection, the learned senior counsel has referred to several decisions laying down the principle that the decision rendered by a division Bench is binding on the single Judge. He has placed reliance upon an order of reference to a Full Bench, which has been reported in 2006 (3) CTC 391 (K. Marappan v. Deputy Registrar of Co-operative societies, Namakkal ). He has submitted that in view of the decisions noticed in such order, the learned single Judge should not have referred the matter to a larger Bench and the full Bench should decline to answer the present reference. ( 6 ) LEARNED senior counsel has referred to the decision of the Supreme Court reported in (2002) 1 SCC 1 : ( AIR 2002 SC 296 ) (Pradip Chandra Parija v, Pramod Chandra patnaik), where it was observed :- "6. . . . . . . . . In the present case the Bench of two learned Judges has, in terms, doubted the correctness of a decision of a Bench of three learned Judges. They have, therefore, referred the matter directly to a Bench of five-Judges. In our view, judicial discipline and propriety demands that a Bench of two learned judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified. " ( 7 ) AGAIN the Supreme Court had occasion to examine the very same question in (2005)2 SCC 673 : ( AIR 2005 SC 752 ) (Central board of Dawoodi Bohra Community v. State of Maharashtra), wherein it was observed as follows :- "12. " ( 7 ) AGAIN the Supreme Court had occasion to examine the very same question in (2005)2 SCC 673 : ( AIR 2005 SC 752 ) (Central board of Dawoodi Bohra Community v. State of Maharashtra), wherein it was observed as follows :- "12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the above said decisions, we would like to sum up the legal position in the following terms : (1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lessor or co-equal strength. (2) A Bench of lesser quorum cannot agree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing before a bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted. (3) The above rules are subject to two exceptions : (i) the above said rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down herein-above, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule)and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh ( AIR 1989 SC 1933 ) and Hansoli Devi ( AIR 2002 SC 3240 ). " ( 8 ) THE submission made by the learned senior counsel is to be considered in the light of the observations made by the Supreme court in the aforesaid two decisions. ( 9 ) IN the present case, the learned single judge has simply referred the matter to a larger bench and it is not indicated by the learned single Judge that the matter is referred to a full Bench consisting of three-Judges or more. Once the matter is referred to a larger Bench. it would be in the discretion of the Hon'ble the Chief Justice to either place the matter before a Division Bench or a Full Bench. It appears from various notes that the then learned the Chief Justice directed for placing the matter before a Full Bench consisting of three-Judges. In such circumstances it would not be appropriate on our part to accede to the submission made by the learned senior counsel that the Full Bench should decline to answer the reference. At any rate, keeping in view the importance of the matter we are inclined to observe that it is more appropriate mat the matter should be dealt with by a Full Bench. At any rate, keeping in view the importance of the matter we are inclined to observe that it is more appropriate mat the matter should be dealt with by a Full Bench. ( 10 ) A careful perusal of the order of reference indicates that the matter referred to the full Bench relates to the question as to whether it is obligatory on the part of the State to compensate the loss caused to the properties due to communal clashes, particularly when the right to hold and acquire the proprty protected under Art. 19 (1) (f) of the Constitution has been deleted. ( 11 ) FOR considering the aforesaid question, it is necessary to consider the following aspects :- (1) What is the effect of deletion of Art. 19 (1) (f)? (2) What is the liability of the State regarding loss of life or damages to the properties during rioting? (3) What is the remedy available to a victim, that is to say, whether a writ petition can i be filed or the victim is required to file a suit for claiming compensation? ( 12 ) IT is no doubt true that by Forty Fourth amendment to the Constitution. Art. 19 (1) (f)and Art. 31 have been deleted, but by virtue of the very same Amendment, Art. 300-A has been included, which is to the following effect :-"300-A. Persons not to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law. " as a matter of fact. Cl. (1) of Art. 31 has been shifted from Part III. that is to say. from part relating to Fundamental Rights to Art. 300-A. Even though the right to acquire and hold property has ceased to be a Fundamental right, it cannot be contended even for a moment that right to hold the property has ceased to be a legal right. In fact, such a right has been recognised as a constitutional right under Art. 300-A. If any person's property is taken away by the Executive without authonity of law, such person would be entitled to legal relief on the ground that such action is in contravention of An. 300-A. However. In fact, such a right has been recognised as a constitutional right under Art. 300-A. If any person's property is taken away by the Executive without authonity of law, such person would be entitled to legal relief on the ground that such action is in contravention of An. 300-A. However. since such right has been brought outside the purview of Fundamental Rights, the aggrieved person may not have any right to move the supreme Court under Art. 32 for violation of art. 300-A and his remedy would be under art. 226 or a civil suit, depending upon the facts and circumstances. ( 13 ) IN the decision reported in AIR 1995 sc 142 (Jilubhai Nanbhai Khachar v. State of gujarat), the right to property under Art. 300-A has been recognised as a constitutional right. If, without providing for payment of compensation or without taking recourse to any provision relating to land acquisition, a person is forcibly deprived of his property, such a person can obviously approach a Court of law, including the High Court under Art. 226. Such an exigency has been recognised by the Supreme court in (2005) 2 SCC 126 : ( AIR 2005 sc 488 ) (State of U. P. v. Manohar), where it has been observed as follows :- "7. Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Art. 19 (1 ) (f)was deleted by the Forty-fourth Amendment to the Constitution, Art. 300-A has been placed in the Constitution, which reads as follows : "300-A. Persons not to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law. " 8. This is a case where we find utter lack of legal authority for deprivation of the respondent's property by the appellants who are State authorities. In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Art. 226 of the Constitution. In our view, the High court was somewhat liberal in not imposiing exemplary costs on the appellants. We would have perhaps followed suit, but tor the intransigence displayed before us. " ( 14 ) THEREFORE, our conclusion is notwithstanding the deletion of Art. 19 (1) (f) and Art. 31. in case where a person is deprived of his property without authority of law. We would have perhaps followed suit, but tor the intransigence displayed before us. " ( 14 ) THEREFORE, our conclusion is notwithstanding the deletion of Art. 19 (1) (f) and Art. 31. in case where a person is deprived of his property without authority of law. such person can protect the right recognised under Art. 300-A by approaching the High Court under art. 226. of course within the known parameters of jurisdiction under Art. 226. ( 15 ) THE next question is regarding liability of the state on account of los,s of life or damage to the property during rioting and the remedy available to the affected person. ( 16 ) A discussion on this a spent can conveniently start with the decision of a learned single Judge of this Court in AIR 1989 Mad 205 (R. Gandhi v. Union of India), which has been subsequently followed by many other high Courts. The said case related to a Public interest Litigation seeking redressal for the trials and tribulations undergone by the minority Sikh community of Coimbatore in the wake of assassination of Smt. Indira Gandhi on 31 st october. 1984. In the said case, it was found :- "7. . . . . . . . It needed no political sagacity or administrative maturity to guage the feelings of the people and anticipate the potentiality for mischief by anti-social elements taking advantage of the situation and including in acts of murder, arson and looting. . . . . . . . Unfortunately the law enforcing authorities failed to give protection to the properties, residential and non-residential, stock-in-trade and household articles of these members of the Sikh community. As a result, the unruly hooligans took the situation under their control, ransacked these buildings, looted the valuables and set fire thereto. Their motor vehicles have also been consigned to fire. In this process of destruction the properties of some members of the other communities in the vicinity shared the same dismal fate. . . . " 1]. Placing reliance upon several decisions of the Supreme Court, the learned single judge further observed :-"21. The maintenance of law and order is the primary duty of the State and under our constitution it is a State subject and tops the state List. . . . " 1]. Placing reliance upon several decisions of the Supreme Court, the learned single judge further observed :-"21. The maintenance of law and order is the primary duty of the State and under our constitution it is a State subject and tops the state List. No Government worth the name can abdicate this function and put the life and liberty, the hearth and home of the citizens in jeopardy. Article 38 of the Constitution 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. Under Art. 19 (1) (a) and (g) of the constitution, any citizen of this country is entitled to reside and settle in any part of the territory of India and to practice any profession or to carry on any occupation, trade or business. Article 21 lays down that no person shall be deprived of his right or personal liberty except according to the procedure established by law. As pointed out by the Supreme court in Bombay Pavement Dweller's case, air 1986 SC 180 , no person can live without the means of living, that is, the means of livelihood and the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Under Art. 300-A of the Constitution, no person shall be deprived of his property save by authority of law and to allow his properties to be reduced to ashes by the force of darkness and evil is a clear deprivation of the right to property guaranteed by the constitution. The members of the Sikh community form an integral part of the Indian society; they have every right to settle down in coimbatore and carry on their profession. They have the constitutional right to live and they cannot be deprived of their means of livelihood. Their right to property is inviolable. All these constitutional rights of the Sikhs and a few members of the other communities have been flagrantly infringed by the inaction of the law enforcing authorities. Fundamental rights are not mere brutum fulmen. They have the constitutional right to live and they cannot be deprived of their means of livelihood. Their right to property is inviolable. All these constitutional rights of the Sikhs and a few members of the other communities have been flagrantly infringed by the inaction of the law enforcing authorities. Fundamental rights are not mere brutum fulmen. They are the throbbing aspirations and realities of civilised human life; they cannot be rendered desuetude or dead letter or as observed by bhagwati, J. as he then was, 'a paper parchment, a teasing illusion and a promise of unreality,' by the failure of the State to protect those rights. These unfortunate victims of arson and violence are therefore entitled to seek reasonable compensation from the State of tamil Nadu, which has failed in its duty to project their constitutional and legal rights. " 2]. Ultimately, the learned single Judge directed payment of compensation to the victims of the not as per the report of the Collector of Coimbatore. Such decision was challenged by the State Government in Writ Appeal no. 314 of 1989. The Division Bench in the judgment dated 8-12-1989, took note of the fact that in number of judgments the victims of riots have been awarded compensation in public interest litigations and ultimately upheld the decision of the learned single judge. It is thus evident that the decision of the learned single Judge received the imprimatur of approval of the Division Bench. ( 17 ) WHEN a similar question cropped up in the High Court of Jammu and Kashmir, R. P. Sethi, J. , as his Lordship then was, relying upon the aforesaid decision of the single Judge of the Madras High Court and several decisions of the Supreme Court observed in the decision reported in AIR 1992 Jandk 11 (M/s. Inder Puri General Store v. Union of India), "5. . . . . . . . . . . . The constitutional set up in this country envisages that all communities have a right to life and practice their religion according to their conscience. All citizens of the country have a right to carry on any profession or trade within the limits of law and the State is under an obligation to protect their life and property ensuring them all the benefits of fundamental rights en-shrined under the Part III of the Constitution. All citizens of the country have a right to carry on any profession or trade within the limits of law and the State is under an obligation to protect their life and property ensuring them all the benefits of fundamental rights en-shrined under the Part III of the Constitution. As; and when life and property, as discussed hereinabove. is taken away by any individual or organisation, a duty is cast upon the State representing the will of people to compensate the victim by granting adequate compensation. The monarchical rule has to be distinguished from democratic set up and the State cannot shirk in its responsibility to protect the life liberty and property of the citizens. On their failure to protect the life liberty and property of the citizens. State is under a constitutional obligation to compensate the victim adequately. The argument of the learned advocate General that the State was under no obligation to compensate the victims of communal riots, is without any basis and contradictory in terms in view of the actions already taken in that behalf. If it was not the responsibility of the State to provide compensation, what was the necessity of passing orders for providing ex gratia grant and lump sum amounts as compensatin of the losses suffered. The State represents the Will of the lapses of the Rulers, a right accrues to them for award of compensation. As and when the life and liberty of any person is taken away, a presumption arises of the failure of the State machine ery to protect the life and property of the in dividuals involved. 6. It cannot be denied that the maintenanos of law and order is the duty of a responsible government who could not abdicate this function and allow the life and liberty of the citizens in jeopardy. " (Emphasis added)1]. After extracting para 21 of the decision in AIR 1989 Mad 205 (cited supra), it was further observed :-" . . . . In that case the quantum of compensation was directed to be paid as per the report of the Collector of Coimbatore as assessed and recommended by him. In this case also the Constitution of an Expert Committee and assessment of compensation of the actual loss suffered by the petitioners, is not disputed. The petitioners are, therefore, entitled to tine grant of relief as prayed for by them. In this case also the Constitution of an Expert Committee and assessment of compensation of the actual loss suffered by the petitioners, is not disputed. The petitioners are, therefore, entitled to tine grant of relief as prayed for by them. " ( 18 ) A similar question arose before me andhra Pradesh High Court in the decision reported in (2001) (1) Civil LT 225 (J. K. Traders v. State of A. P. ). In the said case, the aftermath of assassination of Mr. Rajiv Gandhi, witnessed large scale disturbances and destruction of properties. The individual, whose property has been destroyed, sought for compensatory relief through writ of mandamus. The Government had appointed a Commission of inquiry under S. 3 of the Commissions of Inquiry Act and Mr. M. R. A. Ansari, retired chief Justice of Jammu and Kashmir, was appointed as one-man Commission. The commission had submitted a report, which was accepted by the Government. In such report, it had been indicated that there was large scale damage to the private properties especially belonging to the leaders of Telugu Desam party. The Commission found fault with the police as the police had not taken any action within their control, which according to the commission was dereliction of duty. The petitioner got the damages surveyed by the recognised surveyors, who assessed the damages at Rs. 1,51,50,000/- and the Insurance loss Assessor has assessed the damages at rs. 1. 35 crores. The petitioner contended that on account of incompetent and ineffective handling of the situation by the police, they failed to protect the right of the petitioner under arts. 14, 19 (l) (e ). 19 (l) (g) and 21 of the constitution of India and filed the writ claiming compensation. In the counter, the Government took the stand that on account of news of death, grief-stricken people came out to streets to record protest and the unsocial elements took advantage of the situation and indulged in violent acts and caused damage to private and public properties throughout the state. It also took the stand that the police took all possible steps to control the situation. On the basis of the report of the One-man Commission, the Government had extended certain reliefs to different categories of persons ex gratia and certain other benefits were also given. It also took the stand that the police took all possible steps to control the situation. On the basis of the report of the One-man Commission, the Government had extended certain reliefs to different categories of persons ex gratia and certain other benefits were also given. A stand was also taken that the State government cannot be held responsible for such damages caused by the rioters. 1]. The learned single Judge of the High court, after referring to several decisions of the Supreme Court as well as the decision of the Madras High Court in AIR 1989 Mad 205 (cited supra), summarised the position as follows:-"30. A survey of the entire judgments of the Supreme Court as well as the other High courts, on the question of award of compensation for violation of the fundamental rights, the following principles can be deduced :- (1) Constitutional mandate enjoins upon the state to protect the person and property of every citizen and if it fails to discharge its duty, the State is liable to pay the damages to the victims. (2) The failures or inactions on the part of the State which led to the violation of the fundamental right more especially under Arts. 14, 19 and 21 of the Constitution of India should have been direct nexus to the damage caused/suffered. (3) The State cannot claim defence of sovereign immunity in the guise of the discharge of the sovereign functions in the constitutional remedy It does not clothe the State with right to violate the fundamental rights guaranteed under Part III subject to certain restrictions. (4) The State while undertaking commercial activity cannot plead the sovereign immunity, in case of tortuous acts done by the employees of the State. It is only vicariously liable. (5) The Supreme Court or the High Court are entitled to render compensatory justice by awarding reasonable monetary compensation under Art. 32 or 226 of the Constitution of india, for the injury mental, physical, fiscal suffered by the individual for violation of fundamental rights guaranteed under the constitution. But, however, it must be conclusively established that the State failed to take any positive action in protecting the fundamental rights of the citizens. (6) It is not necessary that the victim should approach the Civil Court by invoking common law remedy for claiming damages for violation of the fundamental rights. But, however, it must be conclusively established that the State failed to take any positive action in protecting the fundamental rights of the citizens. (6) It is not necessary that the victim should approach the Civil Court by invoking common law remedy for claiming damages for violation of the fundamental rights. The option is left to the victim to claim the damages by invoking either the constitutional remedy or civil remedy. Since the constitutional remedy is a public law remedy, the actual victim need not approach the Court. The relief can also be awarded either by exercise of suo motu power or in a public interest litigation case. (7) The quantum of compensation varies from case to case depending upon the nature of loss suffered by the victim. There cannot be any strait-jacket formula for awarding the compensation under Ait. 226 of the Constitution of India. '' 18. 2 Ultimately it was concluded in paragraph 41 as follows :- "41. But the question that calls for consideration is whether the petitioner is entitled to claim the compensation on actuals. It must be remembered that this is a remedy invoked by the petitioner under Art. 226 of the Constitution of India and such remedy is purely discretionary in nature, which cannot be equated with the remedy under common law jurisdiction. Therefore, while considering the matter of compensation under Art. 226 of the constitution of India, the Courts have to adopt the principle approximation and not the actuals while awarding the compensation. That is the reason the Supreme Court in some cases granted compensation observing that the compensation is deductible from the compensation that is claimed under the common law remedy. Thus, the compensation awarded must be fair and reasonable and commensurate with the damages and set backs faced by the victim. It is also to be remembered in this regand that the petitioner did not invoke the common law remedy by filing a suit and if he is relegated to the Civil Courts for claiming damages now. the claim would be barred by limitation. Under those circumstances, this court feels that this is a fit case that this Court should award appropriate compensation. It is not the case that the claim for insurance was closed and that the claims were negatived by the insurance Company. the claim would be barred by limitation. Under those circumstances, this court feels that this is a fit case that this Court should award appropriate compensation. It is not the case that the claim for insurance was closed and that the claims were negatived by the insurance Company. But, on the other hand it is stated that still the matter is pending before the authorities. The reasons for not processing the claim before the insurance company are not forthcoming. Be that as it may, since this is a case where the petitioner had admittedly suffered huge loss on account of the positive inaction on 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. " ( 19 ) IN 1994 (i) ALT 341 (Sri Lakshmi agencies v. Govt. of Andhra Pradesh, Rep. by Chief Secretary), the learned single Judge, while recognising that compensation can be giver where negligence of the State is found, declined to give compensation in that particular case as in that case it was found that there was no negligence on the part of the concerned officials in tackling the law and order situation. ( 20 ) IN 1999 ACJ 225 (K. V. Joseph v. State of Kerala) similar destruction of property took place. Even though the decision in AIR 1989 mad 205 (cited supra) was not specifically re-referred to, almost similar sentiments were expressed in the following words :- "9. The petitioners have the right to protection of life as guaranteed under Art. 21 of the Constitution of India. That includes a right to decently live in a residential house, without inter vention from others. The expression life or Personal liberty' has been held to inelude the right to live with dignity. In the case of the petitioner_no. 4, that right has been violated on 23-9-1993 when her residential building had been demolished by a mob. That would not have taken place if the police had acted taking into account the incident that happened on 20-9-1993 and also the complaints made in Exhs. P4 to P6. Thus, the police and the state machinery failed to protect the rights to live peacefully and with dignity available to the petitioner No. 4. That would not have taken place if the police had acted taking into account the incident that happened on 20-9-1993 and also the complaints made in Exhs. P4 to P6. Thus, the police and the state machinery failed to protect the rights to live peacefully and with dignity available to the petitioner No. 4. Thus, her right guaranteed under the Constitution had been totally violated because of the inaction on the part of the police machinery under the state. When the fundamental right guaranteed under the Constitution is so nakedly violated because of the inaction on the part of the police and of the State machinery, necessarily such a citizen is entitled for compensation from the State. In the case reported in lucknow Development Authority v. M. K. Gupta, 1993 CCJ 1100 (SC): ( AIR 1994 SC 787 , para 8), the Supreme Court observed as follows : "the administrative law of accountability of the public authorities for their arbitrary and even ultra vires action has taken many strides. It is now accepted both by this Court and english Courts that the State is liable to compensate for loss or injury suffered by a citizen due to arbitrary action of its employees. " the properties ot petitioner Nos. 1 to 3 v/ere demolished on 20-9-1993. At that time, the police could not have prevented it. The petitioners have no case that they had approached the police on any day earlier than 21-9-1993. Therefore, the petitioner Nos. 1 to 3 cannot claim compensation in respect of the injury that had taken place because of the demolition on 20-9-1993. They can approach the appropriate authority seeking damages against the persons who caused such damages. 10. But. the case of the petitioner No. 4 is not like that. Her residential building was demolished on 23-9-1993, after the police had been apprised of the situation prevailing there, in Exhs. P4 to P6. It is stated that the police including the respondent No. 3 had assured necessary protection and that there would be no further vandalism. But, nothing was done by the police. Police officers, the respondent nos. 3 and 4, have not denied receipt of Exhs. P4 to P6 or the averments of the petitioners that they had been assured protection and that no vandalism would recur. But, nothing was done by the police. Police officers, the respondent nos. 3 and 4, have not denied receipt of Exhs. P4 to P6 or the averments of the petitioners that they had been assured protection and that no vandalism would recur. Therefore, it is conclusive that the incident that took place on 23-9-1993, demolition of the building of the petitioner No. 4, was solely because of the inaction on the part of the police. This violated the fundamental right guaranteed to the petitioner No. 4 under Art. 21 of the Constitution of India and the 'administrative law of accountability" of respondent Nos. 1 to 4, as held by the Supreme Court in Lucknow Development authority v. M. K. Gupta, 1993 ccj 1100 (SC) : ( AIR 1994 SC 787 ), shall extend to compensate the petitioner No. 4. This Court exercising its power under Art. 226 of the Constitution can definitely giant compensation in terms of the remedy available under public law based on strict liability for contravention of the fundamental rights. . . . " ( 21 ) IT is no doubt true that in the aforesaid decisions, the learned Judges have proceeded on the footing that compensation is payable when a fundamental right is affected on account of any negligent act or dereliction of duty. The destruction of property was considered as violation of fundamental right under art. 21. Even assuming that destruction of property may not come within such fundamental right, in our opinion, such right being a constitutional right, is also required to be protected. It is the duty of the State to protect life liberty and property of a person and any negligence or dereliction of duty on the part of the Government machinery would obviously make the stale Government liable. However, the question of amount of compensation payable is obviously a matter of inference to be considered on facts of each case. ( 22 ) THAT in a fit case the State can be asked to ay compensation to the victims of the riot either when their life is affected or their property is affected appears to have been recognised by the Supreme Court in the decision reported in (2001) 4 SCC 452 : ( AIR 2001 sc 1309 ) (S. S. Ahluwalia v. Union of India ). The Delhi High Court in Bhajan Kaur v. Delhi administration (C. W. P. No. 1429 of 1996) : (reported in 1996 AIHC 5644) had observed that the State has duty to protect the life of its citizens and the State has to pay compensation. The High Court of Delhi by its order dated 5-7-1996 held that in the expanded meaning attributed to Art. 21 of the constitution it is the duty of the State to create a climate where members of the society belonging to different faiths, castes and creeds live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardised or endangered. A writ petition was filed in the Supreme court under Art. 32 contending that similar direction relating to payment of compensation should apply to similar cases all over the country. The Supreme Court observed :-"2. Certain claims have been made in para 13. 3 of this writ petition setting out certain facts which need to be verified. After this petition was filed notices were issued to the governments of different States and they have filed responses in each one of those cases stating the steps that have been taken by them in cases where there had been death or other kinds of violence resulting in injuries or loss of property. But in the nature of the circumstances of the case, it is very difficult for us to extend the decision of the High Court of Delhi in Bhajan Kaur v. Delhi Administration (1996 aihc 5644) to all the States without making a detailed examination of the circumstances arising in each case. Such examination cannot be done by us. Therefore, it would be appropriate for us to direct the High Courts of delhi, Rajasthan, Orissa, Punjab and Haryana, himachal Pradesh, Patna. Madhya Pradesh, allahabad and Bombay in the States of Delhi. Rajasthan. Orissa. Haryana. Himachal pradesh. Bihar. Madhya Pradesh, Uttar pradesh. Maharashtra and Goa to deal with the matter in respect of the allegations made herein in respect of the State falling in their jurisdiction by treating this writ petition as a petition filed in that High Court. These proceedings. therefore, shall stand transferred to the respective High Courts. A copy of the petition with annexures and response of the respective State Governments shall be sent to the High Court for appropriate action. These proceedings. therefore, shall stand transferred to the respective High Courts. A copy of the petition with annexures and response of the respective State Governments shall be sent to the High Court for appropriate action. " ( 23 ) FROM the aforesaid direction of the supreme Court it is apparent that the Supreme court recognised the principle that it is the duty of the State to protect life and liberty and property and on failure of the State Government to do so, direction regarding compensation can be given. However, since a detailed examination of the circumstances arising in each case is required to be considered, the supreme Court observed that such application, which was filed in the Supreme Court, should be treated to be a writ petition in each high Court and the matter would be finalised therein. ( 24 ) IN (2004) 8 SCC 610 (National Human Rights commission v. State of Gujarat), the writ petitions had been filed in the High court by the National Human Rights Commission obviously on behalf of all the victims claiming payment of compensation to the victims on account of communal riot in the State of Gujarat. It was observed in the said case as follows :- "7. There is no dispute that the issue of compensation to the victims of the Godhra carnage is the subject-matter of writ petitions by victims and a non-Governmental organisation before the Gujarat High Court. In addition, the Gujarat High Court is also in seisin of a petition filed by citizens for justice and peace in Special Civil No. 3217 of 2003 in which the question of implementation of a rehabilitation Scheme framed by the State is in question. It is, however, pointed out to us by the learned amicus curiae and the petitioners that while the High Court is monitoring the implementation of the Scheme framed by the State Government for payment of compensation to the victims, the Scheme itself is questionable in that many aspects of the scheme are deficient. For example, it is submitted, the Scheme does not provide for a realistic compensation in respect of damage to property. It is also submitted that the Scheme limits the compensation payable only to death or permanent disablement while excluding cases where the victim may have otherwise suffered grievously, for example, by burning, etc. For example, it is submitted, the Scheme does not provide for a realistic compensation in respect of damage to property. It is also submitted that the Scheme limits the compensation payable only to death or permanent disablement while excluding cases where the victim may have otherwise suffered grievously, for example, by burning, etc. It is also submitted that the victims of sexual offences have not been brought within the purview of the Scheme at all. It is also submitted that the Scheme should be according to the one formulated by this Court in connection with the Cauvery riots reliefs as in ranganathan v. Union of India. 8. In our view, these all are issues which can be raised in the pending writ petitions before the High Court since the High Court would have the jurisdiction to consider each of the grievances raised. In fact, having regard to the nature of the claim it will be more appropriate that the High Court should deal with the issues raised in the first instance. " ( 25 ) THUS a conspectus of the decisions of several High Courts and even those of the supreme Court makes it clear that it is the constitutional obligation of the State to protect the life, liberty and property of a person and where the State, that is to say its machinery without any justification fails in such duty resulting in loss to a person the State cannot avoid its responsibility by taking refuge under a plea that the damage was done by the rioteers and not by State's machinery. ( 26 ) THE allied question is the Forum where the remedy is to be sought for. This question is again a fiercely fought legal battle as evident from several decisions of various High courts and the Supreme Court. The decisions already analysed indicate that depending upon the facts and circumstances, remedy can be sought for under the public law remedy concept by invoking jurisdiction of the High court under Art. 226 or even that of the Supreme Court under Art. 32. In this connection, it is fruitful to refer to some of the decisions of the Supreme Court. The decisions already analysed indicate that depending upon the facts and circumstances, remedy can be sought for under the public law remedy concept by invoking jurisdiction of the High court under Art. 226 or even that of the Supreme Court under Art. 32. In this connection, it is fruitful to refer to some of the decisions of the Supreme Court. ( 27 ) IN AIR 1982 SC 149 (S. P. Gupta v. Union of India), it was observed (para 18):- "there may be cases where the state or a public authority may act in violation of a constitutional or statutory obligation or fail to carry out such obligation, resulting in injury to public interest or what may conveniently be termed as public injury as distinguished from private injury. . . . . . . The view has, therefore, been taken by the Courts in many decisions that whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest. . . . . can maintain an action for redressal of such public wrong or public injury. " The aforesaid observation made by the supreme Court in the context of public interest litigation can be made applicable where the wronged individuals approach the Court for redressal of their grievances. ( 28 ) IN AIR 1984 SC 802 (Bandhua Mukti morcha v. Union of India), it was observed (para 15) :- "we may point out that what we have said above in regard to the exercise of jurisdiction by the Supreme Court under Art. 32 must apply equally in relation to the exercise of jurisdiction by the High Courts under Art. 226, for the latter jurisdiction is also a new constitutional jurisdiction and it is conferred in the same wide terms as the jurisdiction under Art. 32 and the same powers can and must therefore be exercised by the High Courts while exercising jurisdiction under Art. 226. In fact, the jurisdiction of the High Courts under Art. 226 is much wider, because the High Courts are required to exercise this jurisdiction, not only for enforcement of a fundamental right but also for enforcement of any legal right and there are many rights conferred on the poor and the disadvantaged which are the creation of statute and they need to be enforced as urgently and vigourously as fundamental rights. " ( 29 ) IN M. C. Mehta v. Union of India, 1987 (1) SCC 395 : ( AIR 1987 SC 1086 ) it was held. "2. These applications for compensation are for enforcement of the fundamental right to life enshrined in An, 21 of the constitution and while dealing with such applications we cannot adopt a hyper-technical approach which would defeat the ends of justice. This Court has on numerous occasions pointed out that where there is a violation of a fundamental or other legal right of a person or class of persons who by reason of poverty or disability or socially or economically dis-advantaged position cannot approach a Court of law for justice, it would be open to any public spirited individual or social action group to bring an action for vindication of the fundamental or other legal right of such individual or class of individuals and this can be done not only by filing a regular writ petition but also by addressing a letter to the Court. If this Court is prepared to accept a letter complaining of violation of the fundamental right of an individual or a class of individuals who cannot approach the Court for justice there is no reason why these applications for compensation which have been made for enforcement of the fundamental right of the persons affected by the oleum gas leak under Art. 21 should not be entertained. The Court while dealing with an application for enforcement of a fundamental right must look at the substance and not the form. We cannot therefore sustain the preliminary objection raised by Mr. Divan. 3. . . . . . . . . . . We have already had occasion to consider the ambit and coverage of art. 32 in the Bandhua Mukti Morcha v. Union of India ( AIR 1984 SC 802 ) and we wholly endorse what has been stated by one of us namely. Divan. 3. . . . . . . . . . . We have already had occasion to consider the ambit and coverage of art. 32 in the Bandhua Mukti Morcha v. Union of India ( AIR 1984 SC 802 ) and we wholly endorse what has been stated by one of us namely. Bhagwati, J. as he then was in his judgment in that case in regard to the true scope and ambit of that article. It may now be taken as well settled that Art. 32 does not merely confer power on this Court to issue a direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights. It is in realisation of this constitutional obligation that this Court has in the past innovated new methods and strategies for the purpose of securing enforcement of the fundamental rights, particularly in the case of the poor and the disadvantaged who are denied their basic human rights and to whom freedom and liberty have no meaning. '' ( 30 ) IN AIR 1993 SC 1960 (Smt. Nilabati behera alias Lalita Behera v. State of Orissa ). while considering the question of claim of compensation in custodial death, it was observed :-'''9. In view of the decisions of this Court in Rudul Sah v. State of Bihar (1983) 3 SCR 508 ( AIR 1983 SC 1086 ); Sebastian M. Homgray v. Union of India (1984) 1 SCR 904 : ( AIR 1984 SC 571 ) and (1984) 3 SCR 544 : (MR 1984 SC 1026); Bhim Singh v. State of j and K. 1984 (Supp) SCC 504 and (1985) 4 scc 677 : ( AIR 1986 SC 494 ); Saheli, A women's Resources Centre v. Commissioner of Police. Delhi Police Headquarters (1990)1 SCC 422 : ( AIR 1990 SC 513 ) and State of maharashtra v. Ravikant S. Patil (1991) 2 SCC 373 : (1991 AIR SCW 871) the liability of the State of Orissa in the present case to pay the compensation cannot be doubted and was rightly not disputed by the learned Additional solicitor General. Delhi Police Headquarters (1990)1 SCC 422 : ( AIR 1990 SC 513 ) and State of maharashtra v. Ravikant S. Patil (1991) 2 SCC 373 : (1991 AIR SCW 871) the liability of the State of Orissa in the present case to pay the compensation cannot be doubted and was rightly not disputed by the learned Additional solicitor General. It would, however, be appropriate to spell out clearly the principle on which the liability of the State arises in such cases for payment of compensation and the distinction between the liability and the liability in private law for payment of compensation in an action on tort. It may be mentioned straightway that award of compensation in a proceeding under Art. 32 by this Court or by the High Court under Art. 226 of the constitution is a remedy available in public law. based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings. We will now refer to the earlier decisions of this Court as well as some other decisions before further discussion of this principle. " justice Anand in his concurring judgment has observed :-"33. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings unden art. 32 by this Court or under Art. 226 by the high Courts, for established infringement of the indefeasible right guaranteed under Art. 21 of the Constitution is a remedy available in public law and is based on the strict lability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen mad they have under a legal system which aims to protect their interests and preserve their rights. Therefore, when the Court moulds the relief by granting "compensation" in proceedings under Arts. The purpose of public law is not only to civilize public power but also to assure the citizen mad they have under a legal system which aims to protect their interests and preserve their rights. Therefore, when the Court moulds the relief by granting "compensation" in proceedings under Arts. 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by, way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making monetary amends' under the public law for the wrong done due to breach of public duty of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a Court of competent jurisdiction or/and prosecute the offender under the penal law. ( 31 ) IN 1996 AIHC 5644 (Del) 22 1996 AIHC 5644 (Del) "31. . . . . . . It is, therefore, settled law that in public law claim for compensation is a remedy available under Arts. 32 or 226 for the enforcement and protection of fundamental and human rights. The defence of sovereign immunity is inapplicable and alien to the concept of guarantee of fundamental rights. There is no question of defence being available for constitutional remedy. It is a practical and inexpensive mode of redress available for the contravention made by the State, its servants, its instrumentalities, a company or a person in the purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued under the statute or for the enforcement of any right or duty under the Constitution or the law. " ( 32 ) IN the decision of the Supreme Court in D. K. Basu v. State of West Bengal ( (1997)1 SCC 416 ): ( AIR 1997 SC 610 ). it was observed :- "45. . . . . . . . . The Courts have the obligation to satisfy the social aspirations of the citizens because the Courts and the law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim -civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is. therefore, useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family. " ( 33 ) THE aforesaid decision, in the words of the Supreme Court in 2001 SCC' (Cri) 1426 : ( AIR 2001 SC 3660 ) (M. S. Grewal v. Deep chand Sood) ". . . . . . . has opened up a new vista in the jurisprudence of the country. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits stands extended. . . . . . . . . . . " the Supreme Court in the latter decision, went on to observe :- "28. Currently judicial attitude has taken a shift from the old draconian concept and the traditional jurisprudential system - affectation of the people has been taken note of rather seriously and the judicial concern thus stands on a footing to provide expeditious relief to an individual when needed rather than taking recourse to the old conservative doctrine of the Civil Court's obligation to award damages. As a matter of fact the decision in D. K. Basu ( AIR 1997 SC 610 ) has not only dealt with the issue in a manner apposite to the social need of the country but the learned Judge with his usual felicity of expression firmly established the current trend of "justice-oriented approach. As a matter of fact the decision in D. K. Basu ( AIR 1997 SC 610 ) has not only dealt with the issue in a manner apposite to the social need of the country but the learned Judge with his usual felicity of expression firmly established the current trend of "justice-oriented approach. " Law Courts will lose their efficacy if they cannot possibly respond to the need of the society-technicalities there might be many but the justice-oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice. " ( 34 ) IT may prima facie appear that the decision of the Supreme Court reported in chairman, Grid Corporation of Orissa Ltd. (GRIDCO) v. Smt. Sukamani Das ( AIR 1999 sc 3412 ), wherein it was held that the remedy under Art. 226 is not appropriate when disputed questions of fact are involved, has put a full-stop on the question relating to jurisdiction of the High Court under Art. 226 of the Constitution in matters relating to claim of compensation on account of death due to alleged negligent act of the State or "other authorities. " However, even while following the aforesaid decision and upholding similar objection relating to maintainability of writ petition under similar circumstances, the possibility of invoking jurisdiction under Art. 226 was recognised in AIR 2000 SC 1603 (Tamil nadu Electricity Board v. Sumathi), wherein it was observed :-"9. In view of the clear proposition of law laid by this Court in Sukamani Das case (1999 air SCW 3383 : AIR 1999 SC 3412 ) when disputed question of fact arises and there is clear denial of any tortious liability remedy under Art. 226 of the Constitution may not be proper. However it cannot be understood as laying a law that in every case of tortious liability recourse must be had to a suit. When there is negligence on the face of it and infringement of Art. 2 J is there it cannot be said that there will be any bar to proceed under art. 226 of the Constitution. Right of life is one of the basic human rights guaranteed under Art. 21 of the Constitution. When there is negligence on the face of it and infringement of Art. 2 J is there it cannot be said that there will be any bar to proceed under art. 226 of the Constitution. Right of life is one of the basic human rights guaranteed under Art. 21 of the Constitution. In U. P. State co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey (1999) 1 SCC 741 : (1999 AIR SCW 364 : AIR 1999 SC 753 )where one of us (Wadhwa. J.) was a party, this Court after examining various decisions of the Courts on the power of the High Court under Art. 226 of the Constitution observed that the language of Art. 226 of the Constitution does not admit of any limitation on the powers of the High Court for the exercise of jurisdiction thereunder though by various decisions of this Court with varying and divergent views, it has been held that jurisdiction under Art. 226 can be exercised only when a bodily or authority, the decision of which is complained, was exercising its power in the discharge of public duty and that writ is a public law remedy. " ( 35 ) WHILE considering the question of public law remedy, a note of caution was appended by the Supreme Court in (2002) 7 SCC 478 : ( AIR 2002 SC 3560 ) (Rabindra Nath ghosal v. University of Calcutta), which observed :-"8. There can be no dispute with the proposition of law. A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution is undoubtedly an acknowledged remedy for protection and enforcement of such right and such a claim based on strict liability made by resorting to a constitutional remedy, provided for the enforcement of fundamental right is distinct from and in addition to the remedy in private law for damages for the tort, as was held by the Court in Nilabati Behera. It is in fact an innovation of a new tool with the Court winch are the protectors of the civil liberty of the citizens and the Court, in exercise of the same would be in a position to grant compensation when it comes to the conclusion that there has been a violation of fundamental rights under Art. 21. It is in fact an innovation of a new tool with the Court winch are the protectors of the civil liberty of the citizens and the Court, in exercise of the same would be in a position to grant compensation when it comes to the conclusion that there has been a violation of fundamental rights under Art. 21. It is in this context this court has observed : "the citizen complaining of the infringement of the indefeasible right under Art. 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the Courts exercising writ jurisdiction. " 9. The Courts having the obligation to satisfy the social aspiration of the citizens have to apply the tool and grant compensation as damages in public law proceedings. Consequently when the Court moulds the relief in proceedings under Arts. 32 and 226 of the: constitution seeking enforcement or protection of fundamental rights and grants compensation, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizens. But would not be correct to assume that every minor infraction of public duty by every public officer would commend the Court to grant compensation in a petition under Arts. 226 and 32 by applying the principle of public law proceeding. The Court in exercise of extraordinary power under Arts. 226 and 32 of the constitution, therefore, would not award damages against public authorities merely because they have made some order which turns out to be ultra vires or there has been some inaction in the performance of the duties unless there is malice or conscious abuse. Before exemplary damages can be awarded it must be shown that some fundamental right under art. 21 has been infringed by arbitrary or capricious action on the part of the public functionaries and that the sufferer was a helpless victim of that act. " ( 36 ) WHILE considering the question of defence of sovereign immunity, the Supreme court in (1994) 6 SCC 205 : ( AIR 1994 SC 2663 ) (N. Nagendra Rao and Co. v. State of andhra Pradesh), observed (para 24 of AIR):- "25. But there the immunity ends. " ( 36 ) WHILE considering the question of defence of sovereign immunity, the Supreme court in (1994) 6 SCC 205 : ( AIR 1994 SC 2663 ) (N. Nagendra Rao and Co. v. State of andhra Pradesh), observed (para 24 of AIR):- "25. But there the immunity ends. No civilised 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 on a par with any other juristic legal entity. Any watertight compartmentalisation of the functions of the State as "sovereign and non-sovereign" or "governmental and non-Governmental" 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 out merely because it was done by an officer of the State even though it was against law and negligent. 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. . . . . . . . . . " ( 37 ) NO discussion on these aspects can be complete without reference to the decision in (2000) 2 SCC 465 : ( AIR 2000 SC 988 ) (The chairman, Railway Board v. Mrs. Chandrima das), a decision which has been fairly brought to our notice by the learned Additional Advocate general, it was observed :- "11. . . " ( 37 ) NO discussion on these aspects can be complete without reference to the decision in (2000) 2 SCC 465 : ( AIR 2000 SC 988 ) (The chairman, Railway Board v. Mrs. Chandrima das), a decision which has been fairly brought to our notice by the learned Additional Advocate general, it was observed :- "11. Having regard to what has been stated above, the contention that Smt. Hanuffa khatoon should have approached the Civil court for damages and the matter should not have been considered in a petition under Art. 226 of the Constitution, cannot be accepted. Where public functionaries are involved and the matter relates to the violation of Fundamental rights or the enforcement of public duties, the remedy would still be available under the Public Law notwithstanding that a suit could be filed for damages under Private Law. " ( 38 ) NOW the inevitable end of the journey or may be beginning of another. In view of the various decisions noticed by us and many other decisions referred to in such decisions, the following conclusions can be reached. The slate is not necessarily liable in every case where there is loss of life or damage to the property during rioting. Where however it is established that the officers of the State ordained with duty of maintaining law and order have failed to protect the life liberty and property of person and such failure amounts to dereliction of duty the State would be liable to pay compensation to the victim. Such liability can be enforced through Public Law remedy or Common Law remedy. Where, necessary facts to establish culpable negligence on the part of the officials are available, the High Court under Art. 226 can issue appropriate direction. Where, however, the main aspect relating to culpable negligence of the officer is seriously disputed, filing of suit may be more appropriate remedy. No hard and fast rule can be laid down on these aspects and obviously the availability of remedy under Art. 226 would depend upon the facts and circumstances of each case. Compensation for loss to the property can also be claimed under Art. 226 and merely because right to property has been deleted from the chapter of Fundamental Rights and has been recognised as a constitutional right, would not disentitle the High Court to examine that question in any appropriate case. Compensation for loss to the property can also be claimed under Art. 226 and merely because right to property has been deleted from the chapter of Fundamental Rights and has been recognised as a constitutional right, would not disentitle the High Court to examine that question in any appropriate case. ( 39 ) ONE last question. The question relating to value to be attached to the report of a commission constituted under the Commissions of Inquiry Act. ( 40 ) IT cannot be disputed that the report of a Commission of Inquiry is not binding on the State which constitutes such C'ommission of Inquiry nor its findings are binding on those against whom any recommendation is made. The conclusions of a Commission of Inquiry are not admissible in a Court of law in criminal case or even in civil case. Such conclusions are merely advisory in nature. ( 41 ) IN AIR 1958 SC 538 (Ram Krishna dalrnia v. Justice SD. R. Tendolkar ). it was observed :- "9. . . . . . . . . But seeing that the Commission of Inquiry has, no judicial powers and its report will purely be recommendatory and not effective proprio vigore and the statement made by any person before the Commission of Inquiry is. under S. 6 of the Act. wholly inadmissible in evidence in any future proceedings civil or criminal there can be no poin in the Commission of Inquiry making recommendations for taking any action 'as and by way of securing redress or punishment' which, in agreement with the High Court, we think, refers in the context, to wrongs already done or committed, for redress or punishment for such wrongs if any, has to be imposed by a Court of law properly constituted exercising its own discretion on the facts and circumstances of the case and without being in any way influenced by the view of any person or body, howsoever august or high powered it may be. " ( 42 ) SUCH observations of the Supreme court were followed in (1977) 4 SCC 608 ; ( AIR 1978 SC 68 ) (State of Karnataka v. Union of India ). ( 43 ) YET. it has to be noticed as it was done by the Supreme Court in (2001) 6 SCC 181 : ( AIR 2001 SC 2637 ) (T. T. Antony v. State of Kerala ). "33. ( 43 ) YET. it has to be noticed as it was done by the Supreme Court in (2001) 6 SCC 181 : ( AIR 2001 SC 2637 ) (T. T. Antony v. State of Kerala ). "33. It is thus seen that the report and findings of the Commission of Inquiry are meant for information of the Government. Acceptance of the report of the Commission by the government would only suggest that being bound by the rule of law and having duty to act fairly it has endorsed to act upon it. . . . . " ( 44 ) THEREFORE, even if the report of a commission of Inquiry is not legally binding and has got no evidentiary value, once such report, to the extend it is accepted by the State, obviously it would not be fair on the part of the State to contend that it is not bound by the findings of the Commission of Inquiry. In the language of the Supreme Court. "acceptance of the report of the Commission by the Government would only suggest that being bound by the rule of law and having duty to act fairly, it has endorsed to act upon it. " ( 45 ) THE questions referred to are answered accordingly. The writ petitions shall now be placed for hearing before the appropriate Court. Order accordingly.