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2009 DIGILAW 914 (GAU)

Hirendranath Gohain v. Union of India

2009-12-17

HRISHIKESH ROY, J.CHELAMESWAR, RANJAN GOGOI

body2009
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. P.K. Goswami, learned senior Counsel representing the petitioner. Also heard Mr. D.C. Choudhury, learned Central Government counsel who represents the respondent Nos. 1 to 9. 2. The petitioner, who is a reputed scholar and critic of Assam and is a Sahitya Academy Awardee for his literary output, is before this Court in connection with loss of a postal parcel containing books and precious manuscript booked by him for delivery to USA, which remained undelivered and was lost in transit. The concerned international speed post article was booked by the petitioner on 8.2.2007 at the Speed Post counter in the general post office, Guwahati and the said parcel weighing approximately 18.16 kg. was accepted for delivery by the postal authorities to the addressee at Phoenix, Arizona USA and a charge of Rs. 8,559 inclusive of service tax. of Rs. 934 was assessed as the courier charge which was paid by the petitioner at the time of booking of the parcel. 3. The petitioner claims that the parcel contained his invaluable notes and also the manuscript of the petitioner's forthcoming publications on the proposed monograph on the 18th century Assamese thinker Bani Kanta Kakati. According to the petitioner's estimate the value of the books in the parcel would be worth about Rs. 60,000. But as regards the manuscripts and the author's notes, it is stated that it is not possible to put a money value of the manuscript and the notes, which was the product of immense intellectual effort and time of the petitioner. But if a value of the manuscript in terms of money is to be put, the same will be according to the petitioner worth at least Rs. 10 lakh. 4. It is not in dispute that the parcel booked by the petitioner with the postal authorities was not delivered to the addressee in the USA and despite the serious effort made by the petitioner to recover the books and manuscript, no trace of the parcel could be found, leading to the inevitable conclusion that it was lost in transit. 5. For the missing parcel, compensation by way of money for a sum of Rs. 1986 was offered by the postal authority to the petitioner by its communication dated 20.6.2007. 6. Appearing for the petitioner Mr. 5. For the missing parcel, compensation by way of money for a sum of Rs. 1986 was offered by the postal authority to the petitioner by its communication dated 20.6.2007. 6. Appearing for the petitioner Mr. P.K. Goswami, learned senior Counsel contends that although the loss of the original works of the writ petitioner are priceless and the conduct of the postal authorities are reprehensible, the petitioner ought to be compensated for the colossal loss caused to him because of the lapses and negligence of the postal authorities. It is further contended that the postal authorities in the instant case are not involved with any sovereign activities and are merely carrying out commercial functions and no immunity can be claimed by the postal authorities against the claim for damage in public law, put forward by the petitioner. 7. In the counter affidavit filed by respondent Nos. 1 to 9, the factum of booking of the International Speed Post article by the petitioner is admitted by the Postal Authorities. It is also claimed that adequate efforts were also made to trace out the article with the Indian postal Authority's counterpart in the USA as well as with the Lufthansa Cargo Airlines and also in the Airport Cargo Offices and the other possible places where the parcel could have been misplaced, but no trace of the same could be found. 7.1. However, it is averred that the liability of the Postal Department to compensate for the loss of the articles is determinable in accordance with provisions of the Universal Postal Union (UPU) convention of Beijing Accords, 1999 whereby compensation is granted on the basis of the value of the SDR fixed by order dated 29.7.2004 (Annexure XII). The value of one SDR was fixed at Rs. 6,48,392 as per order dated 29.7.2004 which has since been revised to Rs. 6,62,002 and according to the calculation made, the petitioner is liable to be paid by way of compensation, only a sum of Rs. 1986 for the loss of International Speed Post article, booked at Guwahati GPO under No. EF 8406584151N dated 8.2.2007. 8. Mr. 6,48,392 as per order dated 29.7.2004 which has since been revised to Rs. 6,62,002 and according to the calculation made, the petitioner is liable to be paid by way of compensation, only a sum of Rs. 1986 for the loss of International Speed Post article, booked at Guwahati GPO under No. EF 8406584151N dated 8.2.2007. 8. Mr. D.C. Choudhury, the learned Central Government counsel apart from referring to the averments made in the counter affidavit filed, has also referred to the provisions of Section 6 of the Indian Post Office Act, 1898 ('the Post Office Act') to contend that the Government shall not incur any liability by reason of the loss or miss-delivery of any postal article in course of transmission, except so far as such liability as may be expressly undertaken by the Government of India. 8.1. The learned Government counsel also contends that the concerned parcel was not insured nor any declaration of its contents were made by the petitioner at the time of booking and under such circumstances, the value of the articles cannot be assessed nor any claim for compensation can be ordered with regard to the articles in question. 8.2. The liability of any officer of the Postal Department is also sought to be resisted under the provisions of Section 6 of the Post Office Act by contending that the loss is not alleged on account of any fraudulent or wilful act or default of the Postal Authorities. 9. The respondent No. 10, the Lufthansa Cargo Airlines has filed a counter affidavit on 12.3.2008 claiming that the respondent No. 10 has no privity of contract with the petitioner and the petitioner did not handover or entrusted the concerned parcel to the respondent No. 10 and since the respondent No. 10 has a contract only with the Department of Posts of India and if there is deficiency of service, such deficiencies are of the Indian Postal Department. 10. From the aforesaid narration, the undisputed facts can be noted. The petitioner had booked an International Speed Post article at Guwahati GPO under Booking No, No. EF 8406584151N dated 8.2.2007 for delivery at Phoenix, Arizona in the USA. The said article weighed 18.16 kg. and the courier charge inclusive of service tax was assessed at Rs. 8,559 by the Indian Postal Authorities and the said amount of Rs. The petitioner had booked an International Speed Post article at Guwahati GPO under Booking No, No. EF 8406584151N dated 8.2.2007 for delivery at Phoenix, Arizona in the USA. The said article weighed 18.16 kg. and the courier charge inclusive of service tax was assessed at Rs. 8,559 by the Indian Postal Authorities and the said amount of Rs. 8,559 was paid by the petitioner for ensuring delivery of the parcel. But the parcel was never delivered to the addressee and despite searches made for locating the parcel, the parcel could not be traced out. The Indian Postal Authorities have claimed that their liability for non delivery of an International Speed Post article is limited in accordance with the provisions of the Universal Postal Union and only a sum of Rs. 1,986 is liable to be paid to the petitioner as compensation for loss of the booked articles. 11. We are now to decide whether for loss of an International Speed Post article for which courier charge of Rs. 8,559 has been paid, the liability of the Indian Postal authorities ought to be limited to only Rs. 1,986 offered by them, which is less than with of the courier cost or something more should be ordered to be paid. It also needs to be decided as to whether the petitioners should be relegated to the remedies in private law for action based on tort. 12. At the very outset, it must be understood that the Indian Postal Authorities by undertaking to deliver an international speed, post article to the USA was not undertaking any sovereign function of the State but was involved with commercial courier activities. For any claim made against the Indian Postal Authorities arising out of such commercial activity, in our view, cannot be permitted to be resisted by the Postal Authorities by claiming sovereign immunity. 13. The question that is now to be answered is whether the petitioner can sustain a claim against the Indian Postal Authorities by initiating a writ proceeding, where it is always difficult for a writ court to assess and calculate the loss caused to the petitioner and also to assess the quantum of compensations which ought to be paid by the Indian Postal Authorities for such loss. The claim of the petitioner, it may be made clear, is being considered only against the Indian Postal Authorities and not against the respondent No. 10, the Lufthansa Cargo Airlines in as much as, there is no privity of contract between the petitioner and the said respondent No. 10. 14. For the petitioner, the loss of his creative output would definitely be very painful as it is a loss of his own creation. The petitioner also expected to make a reasonable earning through royalty on publication of the lost manuscripts and notes. But again, whether any royalty could be earned or of what amount, can never be predicted, if the manuscripts and notes were to see the life of the day through publication. 15. Although the respondents counsel submits that no declaration of the contents of the parcel have been made at the time of booking, we have no reason to disbelieve the claim made by the writ petitioner, considering his impeccable public reputation as an eminent scholar and a man of integrity. A man of such outstanding literary repute who is well known for his scholarly ways would not be expected to make a false claim about the contents of the international parcel. Therefore, we must proceed to accept the claim of the petitioner with regard to the contents in the parcel booked by him. 16. The value of the books in the parcel have been assessed, by the petitioner to be worth Rs. 60,000 and although there could be rare books amongst them which may not be replaceable, we feel that loss of books ought to be assessed as per their actual worth. But the loss of the manuscripts and the author's notes cannot be considered on the same footing since for an author, the loss of manuscripts, which are the outcome of several months of hard work, may not really be capable of being valued in money terms. 17. A lot of time, energy and hard work is invested by an author to create a manuscript for publication and the manuscript not being published is not only a loss for the creator who misses out on seeing his latest work published and read by his readers but it is also a loss for the readers. 17. A lot of time, energy and hard work is invested by an author to create a manuscript for publication and the manuscript not being published is not only a loss for the creator who misses out on seeing his latest work published and read by his readers but it is also a loss for the readers. Considering the research oriented previous publications of the petitioner, it is also a loss for the society since the missing literary work may never become available in future through another creative effort, by anyone including the petitioner. 18. The manuscripts of the petitioner are creative and intellectual works and such works are meant to be enjoyed and appreciated by the potential readers of the petitioner. These works contained the author's thoughts and expressions meant for his readers and in the process, the petitioner was exercising a precious right akin to a right of freedom of expression, the protection of which is guaranteed by the Constitution of India. By causing loss of the said manuscripts, the petitioners effort to communicate and express his literary thoughts on the Assamese thinker and writer Banikanta Kakati contained in the lost, writings to his readers had been totally extinguished. Under such circumstances, this Court is of the view that the default of the respondent-authorities have led to curtailment of a precious fundamental rights of a man of literature guaranteed under Article 19(1)(a)of the Constitution of India. 19. In the event of infringement of any fundamental right and in the context of what might be described as purely commercial courier activity indulged in by the Government of India, through its Postal Department, it may not be justified to accept the contentions of respondent Nos. 1 to 9 that they are to be exempted from incurring any liability for the loss of the booked articles, on the strength of the provisions of Section 6 under the Post Office Act, 1898. 20. Having concluded that petitioner's fundamental rights guaranteed under Article 19(1)(a) have been infringed through the default of the respondent-postal authorities, the protection claimed by them on the strength of Section 6 of the Post Office Act, 1898 should not in our view be permitted to stand in the way to resist a claim arising out of breach of constitutional rights. A litigant in such situation ought not to be rendered remedyless. 21. A litigant in such situation ought not to be rendered remedyless. 21. The Indian Postal Authorities in the instant case have failed to deliver a precious piece of creative work by a scholar of undoubted repute and standing and prevented its publication by their default. In the counter affidavit filed by respondent Nos. 1 to 9, how the parcel was handled at various steps of its journey has been mentioned. But the Annexure VI document of the respondents counter which is an Airmail delivery bill of the Indian Speed Post Authorities to show delivery of (sic) at Calcutta for its USA bound destination indicate that there is no signature or date of the official of the courier of Airport to confirm receipt of the parcel by the carrier from the Indian Speed Post Authorities. The letter of Suman Rai, the Customer Relation Manager (Annexure IX in the counter) of the Lufthansa Airline is very revealing where the Indian authorities have been asked to furnish payment proof of the customer with regard to the parcel booked by the petitioner. In the E-Mail response dated 16.4.2007 (Annexure IXA) sent to Mr. Yogesh Kumar in the office of the ADG (International Mail), Indian Post, New Delhi, it is clearly indicated that during the course of February 2007, none of the shipment carried the parcel in question. But the picture seen from the above narration becomes somewhat hazy when the counter affidavit filed by the respondent No. 10, the Lufthansa Cargo Airlines is perused. In this counter affidavit sworn by Suman Rai, the Customer Relation Manager, it is accepted that the bag/cartoon booked by the petitioner was delivered to respondent No. 10 at New Delhi for delivery to the United States Postal Service but the bag stated to be dispatched through Flight No. LA-763 on 13.2.2007 was not found at destination. 22. Viewed, thus, it is difficult to pinpoint as to whether the parcel was ever put on an outbound courier flight from India. Be that as it may, since the petitioner had no privity of contract with anyone other than the Indian Speed Post Authorities, any action by the petitioner for compensation and damage would be available only against them and not against any other party with whom the Indian Authorities had further arrangement to ensure delivery of International Speed Post article. Be that as it may, since the petitioner had no privity of contract with anyone other than the Indian Speed Post Authorities, any action by the petitioner for compensation and damage would be available only against them and not against any other party with whom the Indian Authorities had further arrangement to ensure delivery of International Speed Post article. In the event the Indian Speed Post Authorities are fastened with any liability for default with regard to the petitioner's parcel, and they consider themselves to be not the defaulting party, they can always initiate action for recovery of appropriate damage from those including the respondent No. 10, who might have failed them. But this aspect need not detain us since actions by the petitioner can only be against the Indian Speed Post Authorities and it is the petitioner's claim that we are examining in the instant case. 23. The Supreme Court in several decisions including in the case of Nilabati Behera v. State of Orissa 1993 (2) SCC 746 have held that enforcement of constitutional rights and grant pf redress embraces award of compensation as part of the legal consequences of its contravention although award of compensation in a proceeding under Article 226 is a remedy available in public law, based on strict liability for contravention of fundamental rights. A claim under public law is distinct from and in addition to the remedy in private law for damages. When the restoration of the precious manuscripts to the petitioner is not possible and the public authorities are unable to account for it, they are liable to pay compensation by way of damages as it failed to exercise reasonable and expected care in handling the speed post article. We have already held that the right of the petitioner guaranteed under Article 19(1)(a) had been contravened by the default of the Indian Speed Post Authorities and we consider this to be an appropriate case for award of monetary compensation by way of relief in public law. Obviously granting of relief under public law should not be understood to mean that the petitioner is denied of the opportunity to seek further relief, if so advised, by initiating appropriate process to make a claim under private law. 24. Obviously granting of relief under public law should not be understood to mean that the petitioner is denied of the opportunity to seek further relief, if so advised, by initiating appropriate process to make a claim under private law. 24. We have already held that for an action under public law sought to be enforced through the instant writ petition, no immunity under Section 6 of the Indian Post Office Act, 1898 can be claimed by the respondent Nos. 1 to 9. Therefore, a person to whom compensation is found to be payable, must be ordered to be paid. The observation of the Supreme Court in N. Nagendra Rao v. State of Andhra Pradesh (1994) 6 SCC 205 may be referred to in this context. This was a claim for loss suffered by a dealer for damage to the stocks of fertilizers seized under the provisions of the Essential Commodities Act, 1955. In this case the Supreme Court said that: 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. 24.1. In view of the decisions in Nilabati Behera (supra) and N. Nagendra Rao (supra), when the negligence of the postal authorities appear to be the cause for loss of the petitioner's notes and manuscripts, which we have considered to. have resulted in deprivation of his fundamental rights guaranteed under Article 19(1)(a) of the Constitution, direction for payment of compensation can definitely be ordered in favour of the petitioner. Although the petitioner claims that it is not possible to put a money value on the lost manuscripts and the notes, it is stated that if the worth of the manuscripts and the notes are to be considered in money terms, the same would be worth at least Rs. 10 lakh. Although the petitioner claims that it is not possible to put a money value on the lost manuscripts and the notes, it is stated that if the worth of the manuscripts and the notes are to be considered in money terms, the same would be worth at least Rs. 10 lakh. The values of the lost books have been quantified at Rs. 60,000. If this be the worth of the contents of the lost parcel, the offer of Rs. 1,986 as compensation in our considered opinion is totally inadequate and unrealistic. 24.2. But determination of the quantum of compensation payable to the petitioner on the basis of the above assessment and direct payment of the amounts noted above may not be justified in a writ proceeding. Therefore, compensation can only be ordered in public law not for the actual loss, which may be determined through an appropriate proceeding for loss and damage, but fey way of token compensation. But this compensation cannot just be a symbolic amount. 24.3. If we take note of all the attending circumstances, compensation of Rs. 1 lakh for loss of the manuscripts and notes may be in order. A further sum of Rs. 50,000 should also be payable for the loss of the books in the parcel. Accordingly, the State respondents are ordered to pay a sum of Rs. 1,50,000 (Rupees one lakh fifty thousands) only by way of compensation to the petitioner. The petitioner may receive this amount without prejudice to his rights to initiate appropriate proceeding to claim further damages. The respondent Nos. 1 to 9 should make the aforesaid payment to the petitioner within 8 weeks from today. 25. The writ petition stands disposed of in terms of the above directions. Jasti Chelameswar, C.J. (Dissenting) 26. I have had the advantage of going through the judgment prepared by my learned brother Justice Hrishikesh Roy. I am not able to persuade myself to agree with the conclusion reached by my learned brother that the loss such as the one suffered by the petitioner can be described as amounting to deprivation of fundamental right under Article 19(1)(a) by the respondents herein who are undoubtedly officers of the Union of India. The transaction between the petitioner and the respondents is purely contractual in nature. The transaction between the petitioner and the respondents is purely contractual in nature. There was no compulsion on the petitioner to have enter such a contract with the respondents nor is it the case of the petitioner that the respondents enjoy a monopoly in the service which is offered by them. The petitioner had a choice to avail such a service from other bodies. 27. When Article 19 declares that the citizens shall have the various freedoms enumerated therein which includes the freedom of speech and expression, Article 19 does not specify the obligations arising out of such declaration. On the other hand it is Article 13 which declares that the State shall not shake any law which takes away or abridge the rights conferred by Part-III. 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. 28. Nilabati Behera's case (supra) is a case where it is by virtue of the coercive power of the State a person was deprived of his liberty which eventually led to the death of the person in the hands of the officers of the State by a process otherwise than the one established by law. Such an element of coercion, in my view, is absent in the facts of the present case. Therefore, I am of the opinion that Nilabati Behera's case (supra) cannot be an authority for deciding the issue involved in the present case. Therefore, I am of the opinion that it is not a case for award of public law damages on the basis of the principle enunciated in Nilabati Behera's case (supra) and I am of the opinion that the remedy of the petitioner is purely in the realm of private law. 29. I would, therefore, dismiss the writ petition. But in view of the divergence of opinion the matter is required to be placed before an appropriate Bench for a final decision in this regard. 30. The registry is, therefore, directed to seek appropriate orders on the administrative side of this Court. Ranjan Gogoi, J. 31. 29. I would, therefore, dismiss the writ petition. But in view of the divergence of opinion the matter is required to be placed before an appropriate Bench for a final decision in this regard. 30. The registry is, therefore, directed to seek appropriate orders on the administrative side of this Court. Ranjan Gogoi, J. 31. A difference of opinion between two members of the Division Bench which had earlier heard this writ petition has necessitated the present reference. 32. 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 conceptualized 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 finalize 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. 33. 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. 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". 34. 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 (supra) 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 & Co. (supra): 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. 35. 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. 35. 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 India Post Office Act, 1898 will be called for Section 6 of the Act exempts the Union from any liability 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. 36. 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 Ltd. 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 law of commercial information, is indispensable. Accordingly, it was held that "any restraint or curtailment of advertisements would affect the fundamental rights under Article19(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 Article19(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. 37. 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 to 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. 38. 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. 38. 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. 39. 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 same 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, utilizing 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 a yarded 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? 40. 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 recognized. 41. 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. 42. 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. 42. 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 filed, i.e., the consignment was without any declaration of the contents. If such a declaration was necessary the respondents should have insisted on it. 43. When the basic 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 visualize 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 has been noted that what has been awarded by brother Hrishikesh Roy, J. is a sum of Rs. 1,00,000 by way oil 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. 1,00,000 by way oil 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. 44. For the aforesaid reasons, I am inclined to agree with the view taken by brother Hrishikesh Roy, J. 45. Office to post this matter before the Division Bench for further orders that will now be required to be passed. 46. The matter is placed before us pursuant to the order dated 10.12.2009 passed by Justice Ranjan Gogoi. ORDER OF THE COURT Jasti Chelameswar, C.J. 47. The writ petition was earlier heard by this Bench. On conclusion of the hearing, both of us could not agree upon the conclusion and two separate orders were delivered. While I took the view that the writ petition ought to be dismissed, brother Justice Hrishikesh Roy took a view that the writ petition ought to be disposed of with certain directions. 48. In view of the divergence of opinion, necessarily, the matter was required to be heard by the third Judge. Accordingly, the matter was placed before Justice Ranjan Gogoi. The learned Judge by order dated 10.12.2009 agreed with the view taken by Justice Hrishikesh Roy. 49. In the circumstances, it follows automatically that in view of the majority opinion the writ petition is required to be allowed in terms of the directions indicated by Justice Hrishikesh Roy earlier by order dated 30.9.2008. Petition allowed.