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2013 DIGILAW 484 (JK)

State Of J&K v. Syed Mohd. Yousuf Rizvi

2013-08-27

DHIRAJ SINGH THAKUR, M.M.Kumar

body2013
M.M. Kumar, CJ. 1. The instant appeal under Clause 12 of the Letters Patent is directed against judgment and order dated 31.01.2012 rendered by learned Single Judge of this Court, holding the appellants liable to pay compensation to the writ petitioner-respondents on account of occupying their houses by Border Security Force (B. S. F) and Central Reserve Police Force (C.R.P.F), which were later demolished to prevent their use by militants for subversive activities and launching attacks on nearby Special Operation Group (SOG) Camp of the Police. After the houses were vacated the writ petitioner-respondents were not in a position to move in on account of the security scenario. Moreover the militants and anti national elements in the area were so strong that they occupied the houses and used them for their hide outs to attack the nearby SOG camp, therefore, no fault could be found with the writ petitioner-respondents for not having moved therein after the security forces vacated the houses. Accordingly the appellants were held liable to pay compensation and the amount has been determined on the basis of valuation furnished by the Assistant Executive Engineer (R&B) Sub Division Beeru and the Executive Engineer, Muffasil (R&B) Division Budgam. They have concluded the value of the houses at Rs. 2,77,891/- and 2,79,112/- respectively. Accordingly the writ petitioner-respondents were awarded a sum of Rs. 4,40,055/- as compensation on account of demolition of their houses by the Security Forces with interest @ 9% per annum from the date of demolition till realization. 2. We have heard the learned counsel for the parties and are of the view that this appeal is liable to be dismissed. 3. The only ground pressed for reversing the view taken by the learned Single Judge is that the two houses belonging to the writ petitioner- respondents were not demolished deliberately. The demolition followed to avoid the use of these houses by the militants to attack the nearby SOG camp and the subversive activities. According to Mr. Khan, learned counsel for the appellants, the basic object was to curb the sinister activities of terrorist groups and to ensure that the security of the State and integrity of the country is protected. 4. Having heard the learned counsel for the parties we are of the considered view that this appeal does not merit admission. According to Mr. Khan, learned counsel for the appellants, the basic object was to curb the sinister activities of terrorist groups and to ensure that the security of the State and integrity of the country is protected. 4. Having heard the learned counsel for the parties we are of the considered view that this appeal does not merit admission. At one time a Constitution Bench of Hon'ble the Supreme Court in Kasturi lal Ralia Ram jain v. State of U.P. AIR 1965 SC 1039 had taken the view that if a tortious act has been committed by a public servant in discharge of his statutory functions which are referable to, and ultimately based on the delegation of sovereign power of the State to such public servant, then no claim for damages or compensation would be maintainable. If such a tortuous act has been committed by a public servant in discharge of duties assigned to him not by virtue of delegation of sovereign power an action for damages would lie. The Constitution Bench had ruled that commission of tortious act by a public servant in discharge of delegated sovereign functions would not lead to filing a claim for damages/compensation. In Kasturi Lal's case (supra) the facts were that the firm was engaged in the business of jewellery and other goods at Amritsar. One of its partner arrived at Meerut to sell gold and silver in the market there. However, he was taken into custody by three police constables. On search gold and silver was seized from him and he was kept in police custody. He was later released by the police and only silver seized from him was returned to him. Thereafter the firm made repeated demands for returning the gold also which had been seized from its partner but the same could not be given back because the Head Constable had escaped with the gold to Pakistan. Accepting the defence of the State that the officer was discharging sovereign functions delegated to him by the State, the claim of the firm for compensation equal to the value of the gold was rejected by the Court. Accepting the defence of the State that the officer was discharging sovereign functions delegated to him by the State, the claim of the firm for compensation equal to the value of the gold was rejected by the Court. However, in last but one para the Constitution Bench entered a piece of advice by observing that the Legislatures in India ought to consider passing of legislative enactments to regulate and control their claim for immunity in such like cases as was already done by the Parliament in England by passing Crown Proceedings Act, 1947. Although no steps have been taken by the Legislature but the aforesaid judgment has been completely watered down as is evident from a bare perusal of the judgment in the case of N. Nagendra Rao & Co. v. State of A.P. (1994) 6 SCC 205 . Following pertinent observations have been made by their Lordships after dealing with the entire case law. "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 at par with any other juristic legal entity. Any watertight compartmentalization of the functions of the State as "sovereign and non-sovereign or "governmental or non-governmental" is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. Any watertight compartmentalization of the functions of the State as "sovereign and non-sovereign or "governmental or 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 negligently. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a welfare State is not shaken......." (Emphasis added) 5. The aforesaid view has been followed and applied in the case of Common Cause, a Registered Society v. Union of India and others, (1999) 6 SCC 667 . Overruling the view taken in Kasturi Lal's case (supra), their Lordships of Supreme Court in para 78 have observed that the liability is based on the provisions of the Constitution and is a new liability which is not hedged in by any limitations including the doctrine of "sovereign immunity". It would be profitable to extract the relevant observations in this regard which read as under:- "......The decision in Kasturi Lal case has, apart from being criticised (See: Constitutional Law of India by Seervai), not been followed by this Court in subsequent decisions and, therefore, much of its efficacy as a binding precedent has been eroded. Reference in this connection may be made to the decisions of this Court in State of Gujrat v. Memon Mahomed haji Hasam, AIR 1967 SC 1885 and Basavva Kom Dyamangouda Patil v. State of Mysore (1977) 4 SCC 358 and a number of other cases, including those dealt with under Article 32 of the Constitution of this Court in all of which compensation and damages were awarded to the petitioner for tortious liability of the servants of the State. These cases, namely, Rudul Sah v. State of Bihar, (1983) 4 SCC 141 ; Bhim Singh v. State of J&K, (1985) 4 SCC 677 SAHELI, a Woman's Resources Centre v. Commr. These cases, namely, Rudul Sah v. State of Bihar, (1983) 4 SCC 141 ; Bhim Singh v. State of J&K, (1985) 4 SCC 677 SAHELI, a Woman's Resources Centre v. Commr. of Police, Delhi, (1990) 1 SCC 422 ; People's Union of Democratic Rights v. Police Commissioner, Delhi, (1989) 4 SCC 730 and Sebastin M. Hongray v. Union of India (1984) 3 SCC 82, do not refer to the decision of this Court in Kasturi Lal's case (supra). It may be mentioned that in Kasturi Lal's case, the Court did not consider the State liability for violation of Fundamental Rights of a citizen relating to Life and Personal Liberty. It will be seen that where on account of tortious act of the servant of a State, a person's Fundamental Right to Life and Liberty was violated, the Court granted damages and compensation to that person. The liability is based on the provisions of the Constitution and is a new liability which is not hedged in by any limitations including the doctrine of `Sovereign immunity. Reference may also be made to the decision of Privy Council in Maharaj v. Attorney General of Trinidad & Tobago, (1978) 2 All ER 670 (PC).............." (Emphasis added) These judgments have also been followed and applied in case of Chairman Railway Board v. Chandrima Das, (2000) 2 SCC 465 and G.D.A. v. Balbir Singh, (2004) 5 SCC 65 . 6. The above discussion shows that the appellant-State cannot successfully plead the defence of sovereign act by the State or its authorized officer in order to avoid the use of houses as hideouts by the militants and sinister elements, so as to ensure that the security of the State and integrity of the Country is protected. Such a defence, as pleaded by Mr. Khan, would no longer be available because in the modern era the concept of liberty and equality have been kept at much higher pedestal in Constitution which cannot be sacrificed on the altar of sovereign act of the State. These archaic concepts are no longer available in our constitutional scheme. Thus, the appeal is wholly without merit and is liable to be dismissed. 7. As a sequel to the above discussion, this appeal does not merit admission, hence dismissed. These archaic concepts are no longer available in our constitutional scheme. Thus, the appeal is wholly without merit and is liable to be dismissed. 7. As a sequel to the above discussion, this appeal does not merit admission, hence dismissed. The amount deposited by the appellant in pursuance of order dated 03.12.2012 shall be disbursed to the writ petitioner-respondents after recording their correct and full particulars.