B. Subhashan Reddy, J.
1. Is the public law remedy available for the tortious acts of the private individuals and whether the State is liable to pay compensation for such tortious acts of the private indiiduals? - This is the question which has to be answered in these cases.
2. These writ petitions which are several in number seek for directions for payment of compensation to the petitioners for loss suffered to their properties as also business on account of arson and looting which took-place on 26-12-1988 in the aftermath of the murder of the Local MLA - Mr. Vangaveeti Mohanaranga Rao. The respondents are the State Government and its authorities and also the Central Government in some cases.
3. Mr. Vangaveeti Mohanaranga Rao, then a sitting Member of the A.P. Legislative Assembly, was murdered by his opposite faction in the earliy hours of 26-12-1988. When the news of the said murder spread, there was sudden eruption of violence and immediately curfew was imposed in the concerned areas restricing the movements. But, nevertheless, at some places, acts of arson and looting were committed by private individuals/miscreants. However, after some time, the matter was brought under control by the police.
4. The then Government deemed fit to grant some immediate relief measures to rehabilitate the aggrieved persons to the extent possible. That was in the shape of interest-free loans, rebuilding of the houses or repairs, as the situation demanded for weaker sections and for others ex-gratia payment of Rs. 15,000/-each. The persons who insured their properties got some relief from insurance authorities. Some of the petitioners are among the same but, they are not satisfied as the claims made by them were accepted by the insurance authorities only partly. The petitioners are also not satisfied with the reliefs provided by the Government and insist upon the payment of compensation on account of the loss to their properties and business due to arson and looting by the miscreants. Different figures are mentioned in each of the writ petitions basing upon the damage sustained.
5. The premise on which the writ petitions are filed seeking relief against the respondents, be it State Government or its officers or the Central Government, is that by reason of the spree of looting and arson directed against their properties, the petitioners have suffered heavy damages not only of the properties, but also in their business and this has happened because of the negligence of the State and its officers and as such, their fundamental rights under Articles 14, 19(e) and (g), 21 and the constitutional guarantee under Article 300-A of the Constitution of India have been violated and that as such, the respondents are liable to compensate for the same. The above pleas made by the petitioners have been controverted by the respondents by filing counter to the effect that there is no negligence on the part of the respondents and that the petitioners have suffered damages to their properties and business on account of arson and looting by unsocial elements who are all private individuals and that the respondents have taken all possible steps to prevent the same and also imposed the curfew and that the situation was brought under control and for any losses or damage sustained by the petitioners, the respondents are not liable as no vicarious liability arises for the respondents if the private individuals indulged in arson and violence. It is further stated in the counter that the Government, for immediate rehabilitation of the persons affected including the petitioners, has provided the following reliefs:
1. G.O. Rt. No. 104, General Administration (General-B) Department, dated 7-1-1989.
(a) Government have sanctioned following reliefs to the kin of those killed or injured etc., in the riots and police firing.
(i) Ex-gratia of Rs. 10,000/- to the next of kin of those killed in riots and police firing.
(ii) Ex-gratia of an amount of Rs. 10,000/- to those permanently incapacitated.
(iii) Ex-gratia of Rs. 2,000/- to the temporary incapacitated victims.
(iv) Ex-gratia of Rs. 1,000/- to those who have received grievious injuries.
(v) Rs. 500/- to the injured.
(b) Ex-gratia of Rs. 500/- to shop employees working in commercial establishments which were destroyed or damaged during riots and also supplied 75 kgs. of rice to each family by collecting rice through donations.
(c) Consumption loan of Rs. 1,000/- arranged through banks to such employees.
(d) Relief to damaged houses:
Relief upto Rs. 15,000/- in each case was provided in respect of houses burnt or badly damaged during riots.
(e) Relief upto Rs. 2,000/- in each case was provided in case of loss/ damages to earning assets like vehicles boats or bullocks.
Government in their Memo No. 159/Gen., B/89-1, dated 21-2-1989, have sanctioned interest free margin money loan of Rs,15,000/- to the damaged launches provided the banks agreed to give loan.
2. Relief to petty traders:
The petty traders with a turnover of less than Rs. 15,000/- per annum were given a grant of Rs. 3,000/- and the remaining portion as D.R.I. loan. (G.O.Rt. No. 262, General Administration (General-B) Department, dated 20-1-1989).
3. Government deferred the collectable taxes due from the riot victims who have lost property, business etc., (Govt. Memo No. 807/CT.III/89-1, dated 11-1-1989).
4. Supply of Teak and other wood at concessional rates:
(a) Teak upto 36" girth and below 4 meters length was supplied at Rs. 100/- per cft inclusive of Sales Tax.
(b) Teak above 36" girth and above 4 meters length supplied at 50% of the market price. Teak wood supplied to the extent of 50% of assessed requirement. But teak wood supplied in full for the requirement upto 20 cft.
(c) Other kinds of other forest produce i.e., non-Teak Timber, Poles etc., supplied at 50% of the prevailing market rate.
5. Interest free margin money loans of 20% of net loss subject to a Maximum of Rs. 25,000/- were paid through State Finance Corporation.
Interest free margin money laons disbursed to Industrial Units, 7 hotels and Nursing Homes which were damaged during riots with a moratorium of one year.
6. Relief to destroyed cattle sheds:
Ex-graia of Rs. 2,000/- paid in each case in respect of destroyed cattle sheds. (G.O. Rt. No. 424, General Administration (General-B) Deparment, dt. 1-2-1989).
7. Relief to movable properties lost:
Ex-gratia upto Rs. 2,000/- paid to tenant and to the owner for the movable properties lost. (G.O.Rt. No. 662, General Administration (General-B) Department, dated 17-2-1989).
8. Relief and Rehabilitation to Business Establishments:
The business establishments affected during riots were provided with interest free margin money loan limiting to 20% of net damage. The amount equal to sales tax paid/payable for the year 1988-89 whichever is less subject to a maximum of Rs. 15,00,000/- each. The net damage was computed to the actual loss sustained minus the insurance compensation payable on such damage. Moratorium was granted for one year and the loan is recoverable in 12 quarterly instalments. (G.O.Ms. No. 110, Revenue (CT-IH) Department, dated 6-2-1989).
9. Relief to drivers, conductors and cleaners of private motor buses or goods vehicles destroyed during riots:
(a) Ex-gratia of Rs. 500/- was paid to each driver, conductor and cleaner and a bag of rice of 75 kgs. to each family was given. Consumption loan of Rs. 1,000/- was arranged through banks. (G.O. Rt. No. 658, General Administration (General-B) Department, dated 17-2-1989).
10. Interest free loan to petroleum dealers:
Interest free loan of Rs. 5.00 lakhs was granted in case of petrol dealers whose outlets were totally destroyed and Rs. 3.00 lakhs in case of dealers who suffered damage with one year moratorium.
11. Tax exemption was given for purchase of chasis for replacement of totally burnt and unusable chasis of lorries or buses destroyed. (G.O.Ms. No. 89, Revenue (CT-II) Department, dated 30-1-1989).
12. Relief to liquor dealers:
The sales tax already paid on the liquors destroyed was set off against future sales by the affected liquor dealer. (G.O.Ms. No. 90, Revenue (CT-II) Department, dated 30-1-1989).
13. Terminal benefits to shop employees who were rendered jobless in the riots:
Government have granted terminal benefits to those who had lost heir jobs during riots basing on their length of service. (G.O. Rt. No. 341, Revenue (P) Department, dated 15-3-1989).
14. Relief to undertake repairs/reconstruction of houses and business establishments.
In order to enable the victims to obtain bank credit Government have paid 20% of the estimated cost of repairs/reconstruction of houses and business premises subject to ceiling of Rs. 100 lakhs as interest free loan repayable in 5 years with 1 year moratorium. (G.O.Rt. No. 1400, General Administration (General-B) Department, dated 5-4-1989).
15. Relief to the owners of Typewriting Institutions and T.V. Repair Centres:
The margin with a ceiling of 20% of replacement loss of assets was released as interest free loan to the owners of typewriting institutions and T.V. repair centres.
6. M/s. E. Manohar appearing for Mr. A Satyaprasad, M. Chandrasekhar Rao, T. Jagadish, B. Nalinkumar, A. Suryanarayana Murthy, V.S.R. Anjaneyulu, P.M. Gopal Rao, A.V. Sivaiah and Chalameshwar - the learned Counsel - appeared for the petitioners and strenuously contended that the deceased M.L.A was fasting unto death for some time before his death demanding police protection for his life and that the respondents could have very well visualised the tense situation and ought to have taken preventive measures, but they have failed to do so and as such, the miscreants had indulged in large-scale arson and looting even making specific individuals belonging to one caste as a target and that on account of the same, the State and its Officers are liable to compensate for the said losses and damage suffered by the petitioners. Though in the pleas raised Articles 14 and 19(e) and (g) are also mentioned as a ground and so also the Directive Principles of State Policy, the only argument which was putforth was on the touch-stone of Article 21 of Indian Constitution. The decisions rendered in Kishen v. State of Orissa, , C. Ramkonda Reddy v. State,
, Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026, Charanlal Sahu v. Union of India, , Bhim Singh v. State of J & K, , Home Office v. Dorset Yacht Co. Ltd., 1970 (2) All.E.R. 194, M.C Mehta v. Union of India, , Shyam Sunder v. State of Rajasthan,
, Vidya Verma v. Shiv Narain, , Rudul
Sah v. State of Bihar, , State of H.P. v. Umed Ram, and Laxmi Raj Shetty v. State of Tamil Nadu,
were cited in support of the contentions advanced on behalf of the petitioners.
7. Mr. S. Venkat Reddy, the learned Advocate-General appearing for the respondents countering the arguments of the learned Counsel for the petitioners, submitted that the respondents are in no way concerned with the violence indulged by private individuals and that all possible precautions have been taken to control the situation and that curfew was imposed soon after assessing the situation and that after some time the situation was brought under control and that there is no negligence on the part of the State or its officers in tackling the law and order situation and that the respondents cannot be mulcted with any liability to pay compensation to the petitioners. The learned Advocate-General also submitted that there is a material distinction between acts committed by the servants employed by the State traceable to sovereign powers and acts committed by public servants which are not referable to any such sovereign powers and that even if any wrong committed by public servant in the first category is proved, the State is immune from liability. For this proposition, he relies upon the decision in Kasturilal v. State of U.P., and stresses that this is a judgment rendered by a Constitutional Bench of the Supreme Court and that this precedent has to be given effect to and not the two Division Bench Judgments rendered by this Court in C. Ramkonda Reddy v. State (2 supra) and E. Venkaiah v. Govt. of A.P.,
relied upon by the learned Counsel for the petitioners. He further submits that in any event, for private vandalism, the State and its officers are not liable and either Article 21 or other Articles of Indian Constitution have got absolutely no application. For this proposition, he relies upon two decisions; one rendered by the Supreme Court in P.D. Shamdasani v. Central Bank of lndia, and the other of a Division Bench of this Court in Union of India v. Ranganayakulu, .
8. I shall first consider the argument with regard to the immunity of the State for the actions of its officers. It is true as contended by Mr. S. Venkat Reddy that the Supreme Court in Kasturilal v. State of U.P. (13 supra) held that there is a material distinction between the acts committed by the servants employed by the State where such acts are relatable to the exercise of the sovereign powers delegated to public servants and acts committed by public servants which are not relatable to the delegation of any sovereign powers and that if a tortious act is committed by the public servant in discharge of statutory functions which are relatable to and ultimately based on, the delegation of the sovereign powers of the State to such public servant- State is not liable for damages for loss caused by such tortious act. But, this reasoning did not find favour with the Supreme Court when the same was cited in later cases. In Shyam Sunder v. State of Rajasthan (8 supra), repelling the argument advanced on the basis of Kasturi Lal v. State of U.P. (13 supra), the Supreme Court held that the State could not be absolved of the liability for the negligence of its servants. In the said case, the driver employed by the State Government was held to be negligent and on that account, the State was made liable to pay the damages. The Supreme Court held "To-day hardly any one agrees that the stated ground for exempting the sovereign from suit is either logical or practical. We do not also think it necessary to consider whether there is any rational dividing line between the so-called sovereign and proprietory or commercial functions for determining the liability of the State". The same view was followed in Rudul Shah v. State of Bihar (10 supra) where for illegal detention of a person by its officers, the State was made responsible and was directed to pay compensation on the touch-stone of Article 21 of Indian Constitution. The said view was further followed by the Supreme Court in Bhim Singh v. State of J & K (5 supra). Two Division Benches of this Court; one in C. Ramkonda Reddy v. State (2 supra) and the other in E. Venkaiah v. Govt. of A.P. (14 supra), have followed the above Supreme Court judgments and held that for the illegal acts done by its officers, the State is liable to pay damages/compensation. In the latest Supreme Court judgment in Neelabati Behra v. State of Orissa, the view expressed in the judgments referred to above contrary to one in Kasturi Lal v. State of U.P. (13 supra) was approved and it was emphatically held that for violation of fundamental rights by its officers, the State is liable to compensate. In view of the same, no distinction can be drawn between an act of servant of the Government in discharge of statutory functions or otherwise and if the servant of the State in the course of his duties has committed any act infringing the fundamental right of the citizen, the State is not immune from the liability.
9. I shall now proceed to adjudicate as to whether there is any violation of fundamental rights alleged by the petitioners. As already mentioned above, nothing was pointed out to me impinging upon Articles 14, 19(3) and (g) as also the constitutional guarantee under Article 300-A of the Indian Constitution the endeavour of the learned Counsel for the petitioners was only to make the respondents liable on the touch-stone of Article 21 of Indian Constitution which guarantees that "no person shall be deprived of his life or personal liberty except according to procedure established by law". Any action committed by the servants of the State in the course of discharge of their functions, is a State action. In the instant case, it has to be seen as to whether there is any such State action violating the precious and the most cherished fundamental right to life and personal liberty guaranteed under Article 21 of Indian Constitution. All statutory and constitutional provisions are general in nature and more so, the constitutional provisions. It is for the constitutional Courts to interpret and the same may vary according to times and exigencies. Gone are the days when it was deemed that the State cannot commit any wrong on the analogy of monarchial rule that 'King can do no wrong'. In a decision after decision rendered by the Courts of record, be it Supreme Court or the High Courts in India, the scope of Article 21 of Indian Constitution was enlarged to a great extent. But, in all these cases, the essential factor is the violation of fundamental right caused by the servants of the State, concisely termed as State action. Most of the judgments referred to above in paragraph 6 pertain to either illegal detentions by the police or custodial deaths and as such have got no bearing on the instant cases. So also the decisions in Kishen v. State of Orissa (1 supra) relating to starvation deaths, Charanlal Sahu v. Union of India (4 supra) relating to taking over of the private claims in Bhopal Gas leak disaster by the Government in a representative capacity, Shyam Sunder v. State of Rajasthan (7 supra) dealing with social action litigation initiated for compensation for the victims of Oleum gas lead and State of H.P. v. Umed Ram (11 supra) dealing with denial of proper roads and non-availability of roads to residents of hilly State and seeking remedial measures in public interest. The decision rendered in Home Office v. Dorset Yacht Co. Ltd. (6 supra) is also not applicable to the instant cases as the said judgment dealt with the negligence on the part of the officers of the State in letting the trainees to their own devices and in result 7 out of 10 trainees in the custody and under the control of the said 3 officers of the State caused damage to the other Yacht belonging to the respondents and it was held that for the said negligence of the officers, the State was liable. But the same is not the situation in the instant cases. It is not the case that indulgence of violence by miscreants was at the instance of the respondents. It is also not the case that the respondents were just watching the violence as silent spectators, either. To say that, because the deceased MLA was fasting unto death for police protection the respondents should have visualised that there would be murderous acts leading to large-scale arson and looting and that preventive measures ought to have been taken and had the said measures taken, the violence would not have erupted, is purely hypothetical. No negligence can be attributed on that hypothetical basis and no liability can be fastened on the State on that count. Undoubtedly, in a Welfare State, the tackling of law and order problem by the State is a primary duty. It is only when the said duty is not performed, the State will be liable. If no action was taken by the concerned officials in tackling the law and order problem after eruption of violence by private individuals, then the State is liable to pay compensation for their wilful inaction, but the State cannot be made liable in not anticipating the eruption of violence. It is too far-fetched an argument that the State and its officers ought to have assumed that the MLA would be slain and that violence would erupt and that the petitioners and the like would sustain losses/damages, and for that reason, to totally curtail the movements of all the persons in that area, and post police force at each and every house, be it residential or commercial of the individuals in that entire area. The right under Article 21 of Indian Constitution cannot be stretched that far. Article 21 comes into play only against the positive State action violating the fundamental right to life or liberty and een stretching any far it can only he upto mulcting the State for the wilful negligence of the servants of the State in discharge of their functions. Such a thing is totally absent in the instant cases. But the learned Counsel for the petitioners strongly rely upon the judgments rendered in R. Gandhi v. Union of India, , Punjab
Istri Sabha v. S.S. Barnala, Chief Minister, Punjab, , Inder Puri General store v. Union of India, and
Supreme Court Legal Aid Committee v. State of Bihar, . In Supreme Court Legal Aid Committee v. State of Bihar, . The Supreme Court granted compensation of Rs. 20,000/- on account of death of a person who received injuries as the said injured even though taken into police custody was not taken to the hospital for timely medical treatment. The said precedent is inapplicable in deciding the instant cases as I have already held that there is no negligence on the part of the servants of the State. In Punjab Istri Sabha v. S.S. Bamala, Chief Minister, Punjab (19 supra), compensation was granted by the Punjab & Haryana High Court to the tune of Rs. 50,000/- for each victim's death. There, the case projected was the failure of the State Government to protect the lives of the innocent citizens in the wake of terrorists violence. But the relief granted by the Punjab & Haryana High Court was in a different context. The claim of compensation by the aggrieved, at Rs,l,00,000/- (rupees one lakh) for every victim basing on Sabastian M. Hongray v. Union of India (3 supra), M.K. Sarma v. Bharat Electronics Ltd. and Bhim Singh v. State of J & K (1986 ACJ 867 (SC)) were held to be not tenable. The relief was granted basing on the report of the committee of officers constituted by the State Government for that purpose. Ex-gratia payment was first sanctioned at Rs. 20,000/- but the committee has suggested the increase to Rs. 50,000/-. The High Court has directed payment of said ex-gratia sum of Rs. 50,000/- each, as suggested by the said committee. The said judgment is not on firm basis traceable to Article 21 of Indian Constitution. In R. Gandhi v. Union of India (18 supra), for injuries suffered by Sikh Community and some others on account of arson and looting in the wake of assassination of the then Prime Minister, Smt. Indira Gandhi, compensation was assessed by the Collector of Coimbattore at Rs. 33,19,033/- was awarded. This was on the premise that there was culpable inaction on the part of the police in tackling the situation and that had the police acted on time, the loss to property could have been averted and that even though sufficient safeguards were taken to protect the lives of the said community, police did not take proper steps to protect the property even after knowing that the properties of the said persons would be destroyed. It was held "It is obvious that the police have come to the scene very late and their effort to quel the riots were half-hearted. The action of the police was lethargic and inefficient". But, in view of my finding that there was no negligence on the part of the concerned officials in tackling the law and order situation arising after the assassination of the MLA, the above judgment is inapplicable to the instant cases.
10. Coming to the decision in Inder Puri General Store v. Union of India (20 supra), the said judgment is not based on any statement of law authoritatively made in that behalf. In fact, the learned Judge did not record any finding as to the negligence of the officers of the State. The judgments which have been referred to in the said case do not have any bearing on the issue. The said judgment mainly relies on the decision in R. Gandhi v. Union of India (18 supra). But, in that judgment there is a specific finding that there was culpable inaction on the part of the police in protecting the properties of the victims while even affording protection to the life of the said victims. The learned judge in Inder Puri General Store v. Union of India (20 supra) did not record any finding to that effect, but however, ordered payment of compensation on the analogy of the decision in R. Gandhi v. Union of India (18 supra) which in fact cannot be applied for the reason that there is no finding of any negligence or culpable inaction on the part of the serants of the State as was the case in R. Gandhi v. Union of India (18 supra). But the learned Judge states "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 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 lumpsum amounts as compensation for 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 machinery to protect the life and property of the individuals involved." With respect to the said learned Judge, I differ. Even if there is no negligence on the part of the Government, the Government taking sympathetic view and in exercise of its executive function, may grant ex-gratia relief and that by itself does not give rise to any claim as of right to the victims. Merely because the Government has readily granted ex-gratia relief for immediate help and rehabilitation fixing the sums, does not amount to an admission of the guilt of the Government either directly or indirectly. In fact, such a move by the Government has to be commended. No presumption arises of the failure of the State machinery to protect life and property of the individuals involved in each and every case of loss of life or property. Such a sweeping principle of law can never be laid. If that be accepted, for any criminal or illegal act done by the private individuals, the State can be fastened with the liability not for any positive criminal or illegal state action or its culpable inaction, but for every action of erring individual directed against other individual. Somebody's house is burgled by private individual/s - some lady is raped by private individual/s - somebody is beaten up by priate individual/s - somebody's house is burnt by private individual/s - somebody is murdered by private individual/s - somebody suffers loss /damage on account of arson and looting or other unruly behaviour by private miscreants - can there be any presumption in these cases that the State machinery failed to protect the life and property of the said individuals and be fastened with liability to pay compensation/damages? The answer will be 'NO'. For any action committed by private individual/s, it cannot be said that there is a failure of the State machinery to protect the life and property of other individuals and the State cannot be made liable to pay any damages on that account. It is only when the officers of the State does any act positively or failed to act as contemplated under law leading to culpable inaction, that the State is liable to pay the damages. There should be a direct nexus for the damage suffered on account of State action and if that is absent, Article 21 of Indian Constitution is totally inapplicable. In the instant case, too, the servants of the State has no role in the violence indulged by the private miscreants and as such the State is not liable to pay damages to the petitioners. Soon after the news of assassination spread, the District authorities swung into action and swiftly took measures to maintain law and order and clamped curfew and had taken all steps to control the situation and brought the same under control after some time, but meanwhile, the miscreants have played hide and seek and in large numbers have caused damage to the properties of the some individuals including the petitioners. As such there is no culpable action on the part of the State or its servants and no cause arose against the respondents to complain that there is violation of their fundamental rights. Consequently public law remedy under Article 226 of Constitution is not available to the petitioners. Their remedy lies in invoking the private law remedy in common law Court against the miscreants.
11. In view of what is stated supra, the writ petitions are dismissed. No costs.