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2009 DIGILAW 889 (GAU)

Hirendra Nath Gohain v. Union of India

2009-12-10

RANJAN GOGOI

body2009
JUDGMENT Ranjan Gogoi, J. 1. A difference of opinion between two members of the Division Bench which had earlier heard this writ petition has necessitated the present reference. 2. The writ petitioner, an acclaimed Assamese author and recipient of the Sahitya Academy Award, had filed the present writ petition claiming compensation from the Union of India for loss of the manuscripts of two books conceptualised by the petitioner and some old rare books. The manuscripts and the books were couriered by the petitioner to an address in the United States of America through the international speed post, a facility provided by the Post and Telegraph Department of the Union of India. The said materials, according to the writ petitioner, were sent to the United States of America on the eve of his visit to that country. According to the petitioner, he had planned to finalise the manuscripts during his leisure time in the United States of America and to use the rare books as reference books for the work(s) to be produced by him. The articles sent, admittedly, have been lost in transit giving rise to the claim of compensation in the domain of public law. 3. On completion of hearing of the writ petition, the Hon'ble Chief Justice, who was a member of the Bench, has taken the view that the claim for compensation made by the writ petitioner should not be entertained in the domain of public law remedies. The Hon'ble Chief Justice has been of the view that the activity involved in the present case, in the course of which the loss had occurred, pertains to the realm of commercial transactions undertaken by the Union and the petitioner had entered into the contract on his own volition preferring to avail of the services provided by the Union of India rather than the services provided by the private couriers who are engaged in similar business. The Hon'ble Chief Justice has also taken the view that Article 19 of the Constitution declares that the freedoms enumerated therein including the freedom of speech and expression are available to all citizens without, however, specifying the obligations arising out of such declaration. The Hon'ble Chief Justice has also taken the view that Article 19 of the Constitution declares that the freedoms enumerated therein including the freedom of speech and expression are available to all citizens without, however, specifying the obligations arising out of such declaration. It has also been recorded in the order passed by the Hon'ble Chief Justice that "The purpose of enshrining the fundamental rights in the Constitution is essentially to prohibit the State in its all wings, either Legislature or Executive from making any law which deprives the enjoyment of fundamental rights. In other words, the Constitution prohibits the State from employing its coercive power in a manner not consistent with the various declared rights under Part-III." 4. On the other hand, the second member of the Bench, brother Hrishikesh Roy, J. has taken the view that loss of the manuscripts amounted to violation of the fundamental rights guaranteed to the petitioner by Article 19(1)(a) of the Constitution. Relying on the observations of the Apex Court in Nilabati Behera v. State of Orissa 1993 (2) SCC 746 to the effect that "enforcement of Constitutional rights and grant of redress embraces award of compensation as part of the legal consequences of its contravention", the learned judge had thought it proper to hold that the claim for compensation would be maintainable in the domain of public law. Accordingly, a token compensation for the loss of the manuscripts and compensation to the extent of the value of the books was assessed and awarded. In doing so, the learned Judge has also relied on the following observation of the Apex Court in N. Nagendra Rao and Co. v. State of Andhra Pradesh reported in(1994) 6 SCC 2005: 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 a 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 part with any other juristic legal entity. 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 part with any other juristic legal entity. 5. At the very outset a brief consideration of the stand taken by the respondents on the basis of the provisions of Section 6 of the Indian Post Office Act, 1898 will be called for Section 6 of the Act exempts the Union from any lability in case of loss, damage or delay in delivery of a postal article. The exemptions contemplated by the statute, however, cannot have any application where the Court is considering a claim of compensation for an alleged violation of the fundamental rights guaranteed by Part-III of the Constitution. The provisions of Part-III of the Constitution and the permissible remedies for breach of any of the fundamental rights cannot be made subservient to a statute if the primacy conferred by the Constitution to the Chapter on fundamental rights is to be maintained. 6. Article 19(1)(a) of the constitution guarantees to all citizens the freedom of speech and expression. In Tata Press Ltd v. Mahanagar Telephone Nigam Limited and Ors. (1995) 5 SCC 139 , the Apex Court took the view that a commercial advertisement like the 'yellow pages' of a telephone directory is a form of speech and, therefore, is a part of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. It was also held that the public at large is benefited by the information made available through advertisements and further that in a democratic economy free flow of commercial information is indispensable. Accordingly, it was held that "any restraint or curtailment of advertisements would affect the fundamental rights under Article 19(1)(a) ..." Proceeding further, the Apex Court also took the view that Article 19(1)(a)not only guarantees freedom of speech and expression but also protects the rights of an individual to listen, read and receive the said speech.... Accordingly, it was held that "any restraint or curtailment of advertisements would affect the fundamental rights under Article 19(1)(a) ..." Proceeding further, the Apex Court also took the view that Article 19(1)(a)not only guarantees freedom of speech and expression but also protects the rights of an individual to listen, read and receive the said speech.... Protection of Article 19(1)(a) is available to the speaker as well as to the recipient of the speech." Applying the above ratio of the law to the case of the manuscripts belonging to the writ petitioner/there can be no manner of doubt that the right of publication of the manuscript in the form of a book containing the thoughts and perceptions of the author and the right of the public to receive the information therein is an integral part of the freedom of speech and expression guaranteed to the writ petitioner by Article 19(1)(a) of the Constitution. 7. In the present case, it is not in dispute that the Post and Telegraph Department had received the manuscripts and the rare books sought to be transhipped by the petitioner to the United States of America. The petitioner paid the charges demanded for delivery of the articles at the notified address in the United States of America. In the present case, it is also not in dispute that the articles had not been delivered at the address mentioned and in fact have been lost. That such loss had occurred while the articles were in the custody of the Post and Telegraph Department or its agent is a reasonable conclusion that can be drawn from the established or admitted facts. As the articles belonging to the petitioner had been lost while in custody of the respondent Union, there will be little doubt that it is the Union of India who is responsible for the loss. Does the petitioner has a remedy in public law for the loss caused to him is the moot question. 8. The distinction between the sovereign and non-sovereign or commercial activities of the State has diminished over the years and the defence of sovereign functions, except in some situations which do not cover the instant case, is no longer available. Does the petitioner has a remedy in public law for the loss caused to him is the moot question. 8. The distinction between the sovereign and non-sovereign or commercial activities of the State has diminished over the years and the defence of sovereign functions, except in some situations which do not cover the instant case, is no longer available. It will not be necessary to trace the history or reasons leading to the change of judicial thinking, save and except that with the passage of time State activities have been extended to a wide range of matters which were earlier non-State functions. In such a situation, it was perceived that a defence projected on the basis of State functions, while judging the liability of the State as a commercial player engaged in non-State functions, would be an obsolete test and such liability must be judged as in the case of a non-State entity. 9. In Chairman, Railway Board and Ors. v. Chandrima Das (Mrs.) and Ors. (2000) 2 SCC 465 , the Apex Court held the State liable to pay compensation to a Bangladeshi woman who was raped by some employees of a Yatri Niwas run and managed by the Indian Railways after she had arrived at the Howrah Station from Bangladesh. Paragraph 42 of the judgment in Chairman, Railway Board (supra) may be extracted below: 42. Running of the Railways, is a commercial activity. Establishing the Yatri Niwas at various railway stations to provide lodging and boarding facilities to passengers on payment of charges is a part of the commercial activity of the Union of India and this activity cannot be equated with the exercise of sovereign power. The employees of the Union of India who are deputed to run the Railways and to manage the establishment, including the railway stations and the Yatri Niwas, are essential components of the government machinery which carries on the commercial activity. If any of such employees commits an act of tort, the Union Government, of which they are the employees, can, subject to other legal requirements being satisfied, be held vicariously liable in damages to the person wronged by those employees. Kasturi Lal decision therefore, cannot be pressed into aid. If any of such employees commits an act of tort, the Union Government, of which they are the employees, can, subject to other legal requirements being satisfied, be held vicariously liable in damages to the person wronged by those employees. Kasturi Lal decision therefore, cannot be pressed into aid. Moreover, we are dealing with this case under the public law domain and not in a suit instituted under the private law domain against persons who, utilising their official position, got a room in the Yatri Niwas booked in their own name where the act complained of was committed. It may be significant to note that in Chairman, Railway Board, (supra), the Apex Court expressly negated the stand taken on behalf of the Railways that it cannot be held vicariously liable for an offence committed by its employees by acts which had no connection with the official duties of such employees. The present case would definitely stand on a better footing as the conduct of courier business by the Union through its employees and agents and in competition with private agencies is not in dispute. Nilabati Behera, (supra) is a case of award of compensation for custodial death. The question that confronts the Court is whether compensation in the domain of public law remedy can be awarded only for infringement of the fundamental rights guaranteed by Article 21 of the Constitution. Is compensatory relief allowable only if custodial death or bodily injuries results due to illegal acts on the part of the servants/agents of the Government. 10. Part-III of the Constitution enshrines the various fundamental rights available to the citizens and non-citizens within the territories of India. While Article 13 specifically prohibits enactment of any law inconsistent with the provisions contained in Part-III, it is not only the laws made but also the validity of every State action that will have to be judged on the touchstone of the fundamental rights enshrined by the Constitution. In other words, not only a law made but even a State action contrary to or inconsistent with the fundamental rights has to be judged as null and void. Furthermore, not only a declaration of nullity of the law or State action has to be made by the Court where necessary, but the breach of the fundamental rights has also to be repaired by the Court by grant of consequential relief(s). Furthermore, not only a declaration of nullity of the law or State action has to be made by the Court where necessary, but the breach of the fundamental rights has also to be repaired by the Court by grant of consequential relief(s). In case of violation of certain fundamental rights, as for example, those guaranteed by Articles 14, 15 and 16, a declaration of invalidity of the law or the State action coupled with consequential directions for repair of the breach committed are always issued by the Court. In case of violation of certain other fundamental rights, as for example, those guaranteed by Article 21, immediate repair may not be possible, as in the case of custodial death. In such cases, the breach is sought to be repaired by grant of compensation in monetary terms in the absence of any other socially acceptable form of repair of the breach committed. Compensation, therefore, has been understood to be in the nature of a palliative and continues to hold the field until a better form of restitution is conceived of. But can it be said that palliative care can be introduced only in case of violation of the fundamental rights guaranteed by Article 21? The answer to the above must be in the negative with the firm reiteration that no such absolute principle of law can be recognised. 11. What then would be the correct principle of law? The answer probably lies somewhere in between the two extremes. Grant of compensation for breach of the fundamental rights, though not the inevitable relief, must be made if the circumstances of the case would justify the same. The nature of the breach; the facts surrounding the same; the dispute, if any, on basic facts and the availability of an alternative remedy as well as the efficacy thereof are some of the illustrative areas of scrutiny that must be made in any given case. 12. Turning to the facts of the present case, it is clear and apparent that the loss of the articles was occasioned by an unacceptable degree of negligence on the part of the employees of the Post and Telegraph Department or on the part of persons engaged by the Department to give effect to the transaction in question. 12. Turning to the facts of the present case, it is clear and apparent that the loss of the articles was occasioned by an unacceptable degree of negligence on the part of the employees of the Post and Telegraph Department or on the part of persons engaged by the Department to give effect to the transaction in question. The present case also does not show any dispute on the core facts, inasmuch as, the respondent Union of India does not dispute receipt of the articles for transhipment to the United States of America. The fact that the consignment in question consisted of the manuscripts and the rare books, though based on the statement of the writ petitioner, can inspire confidence of the Court having regard to his unimpeachable credentials and the stand taken by the respondents in the affidavit field i.e. the consignment was without any declaration of the contents. If such a declaration was necessary the respondents should have insisted on it. 13. When the basis facts are not in dispute and only the magnitude of the loss from the standpoint of the writ petitioner remains to be assessed, in my considered view, it would not be correct to relegate the petitioner to the forum of the Civil Court. Relegation of a litigant to the forum of the Civil Court is not made on the ground that a civil suit is an alternative form of available legal remedy. The reason for such relegation is that the issues arising for adjudication are considered more appropriate for resolution in a suit rather than in a writ petition. The above principle will be of doubtful application to the present case where no substantial question of fact is in dispute between the parties. In such a situation, it is difficult to visualise as to why in the domain of public law token compensation for an established breach of a fundamental right cannot be granted by the writ Court. It has been noted that what has been awarded by brother Hrishikesh Roy, J is a sum of Rs. 1,00,000/- by way of token compensation for the loss of manuscripts and Rs. 50,000/- for the estimated loss on account of the value of the rare books. It has been noted that what has been awarded by brother Hrishikesh Roy, J is a sum of Rs. 1,00,000/- by way of token compensation for the loss of manuscripts and Rs. 50,000/- for the estimated loss on account of the value of the rare books. The reference being on the question of law and not on the quantum of compensation, the Court will not be concerned with the adequacy or otherwise of the amount awarded. 14. For the aforesaid reasons, I am inclined to agree with the view taken by brother Hrishikesh Roy, J. 15. Office to post this matter before the Division Bench for further orders that will now be required to be passed.