1. In 1993 there was a breach of tank bund of Bhupanapadu Minor Irrigation Tank, in Panyam Mandal of Kurnool District of Andhra Pradesh. As there was an emergency to fill up the breach to prevent further damage, the petitioners' land ad measuring Acs.8.68 in S. Nos. 423, 426, 432, 433, 434 and 435 of Neravada Village was utilised and the breach was repaired. The petitioners, who claim to be small and marginal farmers are before this Court alleging that though the respondents took possession of the land on 11.10.1994, no compensation has so far been paid. They placed reliance on a communication dated 9.7.2000 sent by the Revenue Divisional Officer, Nandyal to the Executive Engineer, Minor Irrigation Works, requesting the latter to provide an amount of Rs. 4,67,622/- to meet the land acquisition charges. As the respondents failed to complete the necessary formalities under the Land Acquisition Act, 1894 (for short, the Act), the petitioners are before this Court praying for a writ of mandamus directing the respondents to pay the market value at Rs. 2.00 lakhs per acre for wet land and at the rate of Rs. 1.00 lakh per acre for dry land.
2. This Court issued Notice before admission. After receiving notices, the Chief Engineer, Minor Irrigation Department entered appearance through the learned Government Pleader for Irrigation. When the matter was listed on 18.3.2002 the learned Government Pleader submitted that there was discrepancy with regard to exact extent of the land utilised for filling up of breach of Bhupanapadu Minor Irrigation Tank and therefore there was delay in acquiring the land. He also submitted, on instructions, that necessary steps are being taken for initiating and completing land acquisition proceedings. He also stated that the land acquisition proceedings will be completed within a period of six months.
3. On 18.3.2002 having regard to the submissions made by the learned Government Pleader, this Court disposed of the matter recording the submissions of the learned Government Pleader to the effect that the land acquisition proceedings will be completed within a period of six months. After dictation of the order, learned Counsel for the petitioner Sri E. Ayyapu Reddy appeared and submitted that the petitioners are claiming compensation for violation of their fundamental right and therefore the matter be heard on that question, The matter was directed to be listed 'for being mentioned' and the learned Additional Advocate General was requested to assist the Court. The matter was heard at length on the question whether the respondents are liable to pay compensation to the petitioners for depriving them of enjoyment of land and denying timely compensation. This Court places on record its appreciation for the assistance rendered by the learned Additional Advocate General Sri K. Prakash Reddy.
4. By the time the matter was heard on the question of liability of the respondents to pay compensation in addition to the sum due and payable under Sections 23, 28 and 34 of the Act, a counter-affidavit is filed on behalf of the first respondent. In the counter-affidavit it is stated that when there was breach in the bund of Bhupanapadu Minor Irrigation Tank, there was great pressure from Ayacutdars of the Tank to close the breach immediately so that storage of water in the tank is not adversely affected. The repair works were taken up on priority basis immediately. Proposals for acquisition of land were sent by letter dated 11.10.1994 to the Sub-Collector, Nandyal, who addressed a letter to the Mandal Revenue Officer, Panyam, directing to conduct preliminary enquiry and submit draft notification and draft declaration. The Office of the first respondent sent reminders to Sub-Collector, Nandyal on 22.3.1995 and 23.5.1995 and requesting to inform value of the land to enable the first respondent to deposit the amount. By letter dated 2.6.1995 the first respondent addressed another letter to Sub-Collector, Nandyal requesting to adjust the excess amount available with the Revenue Department which is furnished by the Irrigation Department towards payment of land acquisition compensation earlier. The first respondent addressed many letters to the Sub-Collector who in turn advised the Mandal Revenue Officer to complete the formalities. The Mandal Revenue Officer by letter dated 13.1.2000, and the Revenue Divisional Officer, Nandyal (third respondent) by letter dated 29.2.2000 addressed the first respondent mentioning discrepancy with regard to extent of the land which is to be acquired. Both the Officers mentioned that revised acquisition proposals for Acs.8.19 would have to be submitted and further requesting to deposit funds to the tune of Rs. 4,67,622/- for taking further action in the matter. Accordingly, the first respondent submitted requisition vide letter dated 26.6.2000 for an extent of Acs.8.68. Superintending Engineer, Irrigation Circle, Kurnool, was also addressed on 3-5-2000 requesting to obtain sanction for funds as requested by the Revenue Divisional Officer by letter dated 29.2.2000. The Superintending Engineer, Irrigation Circle, by letter dated 18.5.2000 addressed the Chief Engineer, Minor Irrigation, Hyderabad requesting to utilise the funds. The first respondent has been pursuing the matter with the Superintending Engineer. The Government is yet to sanction amounts required for payment of compensation. The matter has been pursued at all levels. Delay occurred in finalisation of land acquisition proceedings and payment of compensation to the petitioners due to administrative process involved. There is no inaction on the part of the first respondent and as and when funds are sanctioned the same will be deposited in the Land Acquisition Department and all necessary proceedings will be completed.
Submissions made by the learned Counsel
5. Learned Counsel for the petitioners, Sri E. Ayyapu Reddy submits as follows.
The petitioners are all small and marginal farmers. They eke out their livelihood by cultivating their lands. Their only livelihood is agriculture. As there was breach to Bhupanapadu Minor Irrigation Tank, the petitioners' land was occupied by the Government for the purpose of closing the breach. The respondents took possession of the land on 11.10.1994, but did not take any action under the Act. The petitioners were deprived of their right and livelihood and forced to eke out their living as ordinary contract labour. The action of the respondents in dispossessing the petitioners de hors the provisions of the Act is unreasonable and unconstitutional. The petitioners' fundamental rights under Articles 14, 19(1)(g), and right under Article 300A of the Constitution of India are violated. The respondents are liable for action for constitutional tort and the petitioners are entitled to invoke jurisdiction under Article 226 of the Constitution of India claiming compensation for constitutional tort committed by the respondents. The learned Counsel also filed a rough estimate of the compensation due according to the provisions of the Act in which the petitioners claimed market value at the rate of Rs. 2,00,000/- per acre for wet land and Rs. 1,00,000/- per acre for dry land. The petitioners also claimed solatium at the rate of 30%, penal interest at the rate of 19.5% per annum as per the judgment of the Supreme Court in Chandra Bansi Singh v. State of Bihar, .
6. The learned Counsel made passionate plea for immediate directions to the respondents to disburse the amount of Rs. 16,01,366/- (out of total amount of Rs. 20,01,708/- claimed by the petitioners) under Section 17(3-A) of the Act being 80% of the total compensation as calculated by the petitioners. The learned Counsel for the petitioners relied on the judgment of a Full Bench of five learned Judges of this Court, to which I was member, in M. Vijaya v. Chairman and M.D., Singareni Collieries Company Limited, (FB), two Division Bench judgments of this Court in - Mohd Abdul Wahab v. State of A.P., (DB), and Bheemanna v. Station House Officer, Uppal, (DB). He also placed reliance on the judgment of the Supreme Court in Narmada Bachao Andolan v. Union of India, , as well as Chandra Bansi Singh v. State of Bihar (supra) in support of the contention that when there is a delay in completing land acquisition proceedings, it is competent for the Court to award penal interest.
7. Learned Government Pleader for Irrigation Department submits that writ petition is not maintainable due to delay and laches on the part of the petitioners. He also submits that payment of 80% of the estimated compensation and the contention for payment under Section 17 of the Act has no application. According to the learned Counsel, Section 17 applies only where Notification under Section 4(1) of the Act is issued. The learned Counsel would also submit that right to property is not a fundamental right and therefore there is no cause of action for Constitutional tort by invoking public law remedy of claiming compensation. He also submits that any delay in implementing the land acquisition proceedings is very much mitigated by the Award to additional compensation under Section 23(1-A) of the Act as well as payment of interest from the date of taking possession of the land. He placed reliance on a Full Bench judgment of this Court in Revenue Divisional Officer v. Vasireddy, . He would further submit that when the petitioners seek writ of mandamus directing the respondents to initiate action under the Act the petitioners are entitled only to the amounts which can be awarded under the Act. According to the learned Counsel, Land Acquisition Officer or the Civil Court (on reference under Section 18 of the Act) are not competent to award any sum in addition or excess over and above the amount, which can be awarded under the Act.
8. The learned Additional Advocate-General Sri K. Prakash Reddy submits that when there is delay in initiating or completing land acquisition proceedings the petitioners cannot complain constitutional tort and seek compensation in public law remedy. He vehemently contends that the public law remedy of compensating for violation of fundamental rights is available only when fundamental right to life and liberty is violated. The principle of awarding compensation in public law remedy cannot be extended to violation of all the fundamental rights though many rights have been held to be penumbral to right to life and liberty under Article 21 of the Constitution. The learned Additional Advocate General placed strong reliance on the judgments of the Supreme Court in Nilabati Behera v. State of Orissa, and D.K. Basu v. State of West Bengal, . The learned Additional Advocate General also raised contention that writ petition is barred by delay and laches. Though the land of the petitioners was occupied in 1993 they chose to file the writ petition only in April, 2001 and, therefore, the exercise of power by this Court is subject to self same limitations under Article 226 even though the petitioners allege constitutional tort. Alternatively he would submit that any hardship or financial loss is very well taken care of by law, in that, it is always competent to the civil Court or this Court to award interest as per the provisions of Sections 28 and 34 of the Act. Besides, if the petitioners' contention that they are rightful owners and entitled for compensation is accepted, they are also entitled for additional compensation at the rate of 12% under Section 23(1-A) of the Act.
Therefore, he submits that the petitioners' cannot seek any compensation in this public law remedy, especially when they have no fundamental right to property under the Constitution.
Points for Consideration
1. Whether writ petition is not barred by delay and laches?
2. Having regard to the provisions of the Land Acquisition Act, 1894 especially Sections 23, 24, 28 and 34 whether this Court in exercise of its jurisdiction under Article 226 can award damages and compensation over and above legal entitlement ? and
3. Whether the petitioners' contention that the respondent-State is liable to pay damages for constitutional tort and deprivation of petitioners' right under Articles 14, 19(1)(g) and 21 cannot be countenanced by this Court?
In Re Point No.(1) Whether writ petition is not barred by delay and laches ?
9. It is the case of the petitioners that they are owners of agricultural land comprised in S. Nos. 423, 426, 432, 433, 434 and 435 of Neravada Village, Panyam Mandal, Kurnool District, ad measuring Acs.8.68 out of which an extent of Acs. 1.21 in S. No. 426 is wet land and other lands are dry lands. The petitioners are small and marginal farmers allegedly depending on only agricultural income by raising paddy and commercial crops. They have no other avocation except agriculture and cultivation. In 1993 there was breach to Bhupatiapadu Minor Irrigation Tank. Presumably a part of the land was also covered under the said tank. So as to close the breach and strengthen the bund, the first respondent took possession of the petitioners' land on 11.10.1994 in an extent of about Acs. 10.18. They allege that they objected to the acquisition in vain. They also say that first respondent sent proposals to respondents 3 and 4 to initiate proceedings under the Act and allegedly promised to pay 80% of the value of the land plus solatium with interest. Alleging that no concrete steps were taken by the respondents, they filed the writ petition on 16.4.2001 praying for a writ of mandamus directing the respondents to pay compensation at the rate of Rs. 2,00,000/-per acre for wet land and Rs. 1,00,000/- per acre for dry lands with penal interest at the rate of 19.5% per annum from the date of taking possession of the land till the date of payment.
10. There is no denial that the respondents took possession of the land on 11.10.1994 und the petitioners approached this Court on 16.4.2001 after about seven years. Binding judicial decisions are galore, that a citizen is to be vigilant and must approach the High Court seeking judicial review of administrative action within a reasonable time. Though the principle that person aggrieved may approach the High Court within a period of six months, it is not an inflexible Rule, a person ordinarily should approach the Court within a reasonable time. An elaborate overview of judicial precedents is not necessary. A reference to the judgments of the Supreme Court in State of Maharashtra v. Digambar, , and Municipal Council, Ahmednagar v. Shah Hyder Baig, , would suffice.
11. In State of Maharashtra v. Digambar (supra) it was held:
In our view, the above allegation is in no way sufficient to hold that the writ petitioner (respondent here) has explained properly and satisfactorily the undue delay of 20 years which had occurred between the alleged taking of possession of his land and the date of filing of writ petition in the High Court. We cannot overlook the fact that it is easy to make such kind of allegations against anybody that too against the State. When such general allegation is made against a State in relation to an event said to have occurred 20 years earlier, and the State's non-compliance with petitioners demands, State may not at all be in a position to dispute such allegation, having regard to the manner in which it is required to carry on its governmental functions. Undue delay of 20 years on the part of the writ petitioner, in invoking the High Court's extraordinary jurisdiction under Article 226 of the Constitution for grant of compensation to his land alleged to have been taken by the governmental agencies, would suggest that his land was not taken at all, or if it had been taken it could not have been taken without his consent or if it was taken against his consent he had acquiesced in such taking and waived his right to take compensation for it.
12. In Municipal Council, Ahmednagar v. Shah Hyder Baig (supra), the Supreme Court specifically considered the effect of delay in exercise of jurisdiction under Article 226 and held:
... It is now a well settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period, the parry is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law Courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, 'delay defects equity' has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-
bye to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise.
13. In view of the binding judgments the conclusion is certain that the writ petition suffers from delay and laches. Nothing prevented the petitioners to approach Court within a reasonable time. It is not their case that they approached the first respondent or any other respondents seeking expeditious consideration of initiation of land acquisition proceedings. Point No. 1 is answered accordingly.
In Re Point No. (2)
14. Having regard to the provisions of the Land Acquisition Act, 1894 especially Sections 23, 24, 28 and 34 whether this Court in exercise of its jurisdiction under Article 226 can award damages and compensation over and above legal entitlement ?
15. Land Acquisition Act is an instance of exercise of power of eminent domain by the State. Initially, about a century ago whenever land was needed to take up execution of public works, the matter was referred to the arbitrators for fixation of compensation. This had resulted in lamentable waste of public money and time besides fear of corruption on the part of the Arbitrators. The defect was remedied by the Land Acquisition Act, 1870. This was intended to incorporate detailed instructions as to matters which are to be considered and which are to be neglected in passing Awards for the lands acquired under the said Act. An aggrieved party was given liberty to seek reference to the Civil Court which was aided by Assessors and its finding on compensation became final, if one or more Assessors agree with the decision of the learned Judge. The Act of 1870 was also found to be not completely effective. Therefore, Act of 1870 was amended by Act 1 of 1894 making the Collector's decision final unless altered by decree of Civil Court.
16. The procedure to determine the valuation of the land was also changed making it possible to dispense with the services of Assessors. What is noteworthy is 1870 as well as 1894 Acts gave importance to the method and manner of valuation of the land. Section 23 of the Act deals with matters to be considered in determining compensation. Section 24 of the Act deals with matters to be ignored in determining compensation. Section 28 provides that the Civil Court may award interest on the excess of the sum determined by the Court at the rate of 9% per annum. Section 34 of the Act also deals with payment of interest. It ordains that when the amount of compensation is not paid or deposited before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of 4% per annum from the time of taking possession until the amount is paid. Therefore, the authorities under the Act are required to pass Awards keeping in view the principles laid down in these provisions.
17. It may also be noticed that no person is entitled to approach the Civil Court by way of a suit for any other reliefs in relation to land acquisition which is exclusively governed by the Act. This is well settled. A reference may be made to the decisions of the Supreme Court in Laxmi Chand v. Gram Panchayat, , and S.P. Subramanya Shetty v. Karnataka State Road Transport Corporation, .
18. In Laxmi Chand v. Gram Panchayat (supra) the Supreme Court held:
Section 9 of the Civil Procedure Code, 1908 gives jurisdiction to the Civil Court to try all suits, unless barred. The cognizance of a suit of civil nature may either expressly or impliedly be barred. The scheme of the Act is complete in itself and thereby the jurisdiction of the Civil Court to take cognizance of the case arising under the Act, by necessary implication stood barred. The civil Court thereby is devoid of jurisdiction to give declaration on the invalidity of the procedure contemplated under the Act. The only right an aggrieved person has is to approach the Constitutional Courts viz., the High Court and the Supreme Court under their plenary power under Articles 226 and 136 respectively with self-imposed restrictions on their exercise of extraordinary power. Barring thereof, there is no power to the civil Court.
19. In S.P. Subramanya Shetty v. Karnataka State Road Transport Corporation (supra) the Supreme Court laid down as under:
In view of the settled legal position that the Notification had become final and the proceedings had attained finality, the Civil Suit was not maintainable. This Court has repeatedly held that a Civil Suit relating to acquisition proceedings is not maintainable and by implication, the cognizance under Section 9 CPC is barred. The Court cannot issue mandatory injunction against the State to denotify the acquisition under Section 48. Therefore, the question of granting an injunction against the authority from proceeding in accordance with law does not arise.
20. In view of the above two judgments, a person whose land is acquired and a person who has grievance regarding compensation awarded to him or a person who disputes the apportionment cannot approach the Civil Court. Cognizance of civil suit by Civil Court under Section 9 of CPC, 1908 is clearly barred. Learned Counsel for the petitioners strenuously contends that as there is delay in passing the Award and paying adequate compensation to the petitioners for the land they are entitled for additional sum of compensation and also additional penal interest at the rate of 19.5%. The relief, if granted, would be contrary to Sections 23 and 24 as well as Sections 28 and 34 of the Act.
21. Section 23 of the Act requires the Land Acquisition Officer to take into consideration the market value of the land on the date of publication of the notification under Section 4(1) of the Act. The damage sustained by the person interested by reason of taking of any standing crops or trees at the time of taking possession; the damage, if any, sustained by person interested at the time of Collector taking possession; the damage, if any, sustained by person interested at the time of Collector taking possession by reason of acquisition injuriously affecting for the person's other movable or immovable property or his earnings; if the person is compelled to change his residence or place of business by acquisition, the reasonable expenses if any, incidental to such change of residence or place of business; and the damage if any resulted from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land are some of the determining factors for awarding compensation by the Land Acquisition Officer and/or Civil Court. In view of Section 23 of the Act, the Land Acquisition Officer or the Civil Court cannot take into consideration any other matters or factors while determining the compensation.
22. What are the matters to be neglected by the Land Acquisition Officer or the Civil Court in determining compensation ? It is necessary to extract Section 24 of the Act, which reads as under:
24. Matters to be neglected in determining compensation :--But the Court shall not take into consideration--
first, the degree of urgency which has led to the acquisition;
secondly, any disinclination of the person interested to part with the land acquired;
thirdly, any damage sustained by him which, if caused by a private person, would not render such person liable to a suit;
fourthly, any damage which is likely to be caused to the land acquired, after the date of the publication of the declaration under Section 6, by or in consequence of the use to which it will be put;
fifthly, any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired;
sixthly, any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put;
seventhly, any outlay or improvements on, or disposal of, the land acquired commenced, made or effected without the sanction of the Collector after the date of the publication of the notification under Section 4, Sub-section (1);
eighthly, any increase to the value of the land on account of its being put to any use which is forbidden by law or opposed to public policy.
23. A plain reading of Section 24 shows that degree of urgency which led to acquisition and any disinclination of person interested to part with the land acquired are irrelevant for the purpose of determining compensation. Further, Section 23 or Section 24 does not in any manner refer to any compensation to be awarded or not to be awarded by reason of delay in passing the Award or by reason of the pendency of the matter before the Civil Court. This Court cannot introduce a new ground in Section 23 and order awarding of compensation on the ground that there has been delay in paying compensation or passing the Award. For that matter, if the matter is pending in reference under Section 18 of the Act in Civil Court or by way of appeal under Section 54 of the Act before the appellate Court or High Court the person whose land is acquired cannot complain that due to delay in giving finality to the Award, he should be awarded more compensation by way of damages. The law does not contemplate such additional compensation.
24. It is well settled that when the authorities are entrusted with powers and functions under a statutory enactment, such powers and functions are to be exercised strictly in accordance with the provisions of the Statute. Such principle was first laid down in Taylor v. Taylor, 1875 (1) Ch. D 426. This principle: which may be called 'Taylor principle' is well-settled. A reference may be made to Nazir Ahmed v. Emperor, AIR 1936 PC 253 (2), G.E. Board v. Giridharlal, , State of Gujarat v. Shantilal, , Ramchandra v. Govind, , Shiva Kumar Chadha v. Municipal Corporation of Delhi, , and Government of Andhra Pradesh v. H.K.V.P.B. Chemicals (P) Ltd. .
25. In Taylor v. Taylor (supra) Justice Jessel M.R. laid down the principle as under:
When a statutory power is conferred for the first time upon a Court and the mode of exercising it is pointed out, it means that, no other mode is to be adopted..........on a great varieties of Acts where application has been directed to be by petition, and it has been laid down that being the mode appointed by the Act which conferred the jurisdiction, it must exercise the jurisdiction according to the provisions of the Act. In the same way, when the Statute says who is the person to petition, it means that the person or persons so described, and no others, shall be entitled to petition, otherwise any one interested might petition under the general principle that when powers are to be exercised by a Court of law any person interested in calling those powers into execution is entitled to come before the Court, and the only reason for putting in such a section is to show that that is not the meaning of the Legislature, but that the right of calling for the exercise of the powers shall be confined to the persons so described.
26. The principle was reiterated in Nazir Ahmed v. Emperor (supra). The Hon'ble Supreme Court in G.E.Board v. Giridharlal (supra) and State of Gujarat v. Shantilal (supra) laid down that when power is conferred by the Legislature prescribing the mode for exercise of power, it must be exercised only in that manner and in no other manner. In Ramchandra v. Govind (supra) after referring to Taylor v. Taylor (supra), Nazir Ahmed v. Emperor (supra) it was laid down as under.
A century ago, in Taylor v. Taylor, (1875) 1 Ch D 426 Jessel M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and mat other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmed v. Emperor, 63 Ind App 372 = (AIR 1936 PC 253 (2)), and later by this Court in several cases, Shiv Bahadur Singh v. State of U.P. (1954) SCR 1098 = (AIR 1954 SC 332 = 1954 Crl LJ 910); Deep Chand v. State of Rajsthan to a Magistrate making a record under Sections 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies "where indeed, the whole aim and object of the Legislature would be plaintly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other. Maxwell's Interpretation of Statutes, 11th Edn., pp. 362-363.
27. The same principle was again reiterated in Shiv Kumar Chadha v. Municipal Corporation of Delhi (supra). Apart from these cases which laid down general principles, there are decided cases wherein the Courts have laid down that persons whose lands are acquired are entitled to only such benefits as provided under the Act. No extra benefits like allotment of alternate land, penal interest for delay in payment of compensation amount etc., can be granted. It is necessary to make a brief reference to these cases:
28. In Union of India v. Budh Singh, , the respondents land was acquired for construction of Head Quarter of Punjab Armed Police in 1963. Possession was taken on 15.3.1963 and the owner was initially paid compensation on 9.3.1965. Owner filed a suit for recovery of possession which was decreed. The State's first appeal as well as second appeal were dismissed. The Government issued proceedings under the Land Acquisition Act by issuing Notification under Section 4(1) of the Act on 16.11.1984 and an award was passed. But in execution of the decree the High Court passed an order that in the event of default in payment within the stipulated time payment of interest at 18% per annum from the date of taking possession be paid. Before the Apex Court a question arose whether the owners of the lands were entitled for interest at 18% per annum from 15.3.1963 when the possession was taken, till 15.11.1984 when the Notification under Section 4(1) of the Act was issued. The Supreme Court answered the question in the negative and observed that the Act being self-contained Code, common law principles of justice, equity and good conscience cannot be extended in awarding interest contrary to the provisions of the Statute. It is necessary to extract the following dicta laid down by the Supreme Court.
It is a jurisdictional issue and the finding in this behalf touches and trenches into the jurisdictional power of the Court, acting under the Act regarding award of interest. The payment of interest under the Act is squarely covered by the provisions of the Act. The Statute covers the entire field of operation of the liability of the State to make payment of interest and entitlement thereof to the owner when land has been taken over and possession in consequence thereof, the land owner was deprived of the enjoyment thereof. Thus, it could be seen that the Court has no power to impose any condition to pay interest in excess of the rate and manner prescribed by the Statute as well as for a period anterior to the publication of Section 4(1) Notification under the Act. The parameter for initiation of the proceedings is the publication of the Notification under Section 4(1) of the Act in the State Gazette or in an appropriate case in District Gazette as per the local amendments. But the condition precedent is publication of the Notification under Section 4(1) in the appropriate Gazette. That would give legitimacy to the State to take possession of the land in accordance with the provisions of the Act. Any possession otherwise would not be considered to be possession taken under the Act. The Act is a self-contained code and common law principles of justice, equity and good conscience cannot be extended in awarding interest, contrary to the provisions of the statute.
29. Whether the owners of the land, whose property is acquired are entitled to claim any other benefits and facilities which are not provided for under the Act ? This question was considered in Chandragauda Ramgonda Patil v. State of Maharashtra, , State of Kerala v. Bhaskaran Pillai, , Koppula Narasiah v. Government of Andhra Pradesh, and K. Jayaramaiah Chetty v. Land Acquisition Officer, . In the cases decided by the Supreme Court it was held that the owners of the land are not entitled for reconveyance even if the land acquired for public purpose was not completely utilised for the said public purpose. In K. Jayaramaiah Chetty v. Land Acquisition Officer, TTD, this Court held:
...Therefore, in case, of either claim for higher rate of interest in respect of acquisition or claim for reconveyance of the acquired land which was found to be surplus, it is well settled that the common Law principles of Justice, equity and good conscience have no place. When once the Land Acquisition Officer determines the compensation and passes an award, the land vests absolutely in the Government or the authority for whom the land is acquired, free from all encumbrances. The owners of the land or the tenant have no right or legal entitlement to claim any other benefit, which is not provided for under the provisions of the Act.
30. In Koppula Narasiah v. Government of Andhra Pradesh (supra) this Court after referring to State of Kerala v. M. Bhaskaran Pillai (supra), C. Padma v. Deputy Secretary to Government of Tamil Nadu, , State of Punjab v. Sadhu Ram, , Chandragauda Ramagonda Patil v. State of Maharashtra (supra), State of A.P. v. Venkayya, 1965 (1) An.WR 74, E.D. Rama Rao v. Ongole Municipality, (FB), Indian Vegetarian Congress v. State of West Bengal, , noticed the following principles of law:
(a) The land acquired under the provisions of the Act for one public purpose, after putting it to the said public purpose partly or fully, if surplus land remains, can be utilised either partly or fully for any other public purpose;
(b) When the land absolutely vests free from encumbrances, the same shall be treated as Government land subject to all legislations, rules and executive instructions touching upon the assignment of land for other purpose and for landless poor;
(c) The owners of the land whose land is acquired have no right, legal entitlement or legitimate expectation in seeking reconveyance of the land at the price at which compensation was paid under the award under Section 11 of the Act;
(d) If the Government, as a policy decides that the land acquired is not partly or fully utilised for the public purpose which it was acquired, is no more required for any purpose, either because it is not suitable or because it has become waste land, the Government is bound to deal the property like any other Government property and dispose of the same in the manner which subserves public interest. The sale of Government land by public auction or by calling for tenders and disposing of the same to the highest bidder is the most transparent and best method of subserving public interest;
(e) The power of the Government to dispose of the surplus land acquired by public auction also enables to permit original land owners to participate in the public auction and offer appropriate highest bid;
(f) In any event, any claim by the original land owners or their legal heirs for reconveying cannot be entertained after a long lapse of time, say 10 years, 20 years or 30 years;
(g) If the Government decides to assign the surplus acquired land to landless poor persons as a measure of poverty amelioration, the method of publication auction need not be adopted.
Point No. 2 is answered accordingly against petitioners.
In Re Point No. (3) Whether the petitioners' contention that the respondent State is liable to pay damages for constitutional tort and deprivation of petitioners' right under Articles 14, 19(1)(g) and 21 cannot be countenanced by this Court ?
31. The fundamental rights in Part-III of the Constitution form the core of 'Indian suprema lex'. Any executive and/or legislative action which violates fundamental right is declared by the Constitution itself as void. The right to enforce fundamental rights is itself recognised as fundamental right. Under Article 32 of the Constitution any citizen can move the Supreme Court directly for the enforcement of fundamental rights. The Supreme Court under Article 32 and the High Courts under Article 226 of the Constitution are empowered to resolve the disputes between the State and the citizens when there is genuine grievance that fundamental rights are violated. In so doing, the Constitutional Courts exercise public law powers. High Courts and Supreme Court - are empowered to issue prerogative writs, directions and orders for the enforcement of any rights conferred by Part-Ill of the Constitution and also give appropriate directions for such enforcement. In the march from the stage of nullifying executive and legislative actions on the ground of violation of fundamental rights, the Courts have evolved the theory of constitutional tort brushing aside the doctrine of sovereign immunity to meet certain situations where there is malfeasance and misfeasance on the part of the officials and the executive.
32. A person who complains violation of common law right has to seek redress in a Civil Court and if civil wrong complained has no punishment, but only damages, the aggrieved person has to seek damages for the tort. When a fundamental right guaranteed by the Constitution is violated a citizen hitherto was not entitled to seek any compensation. He was only entitled for a declaration and/or an order for restoration of the status or position which was denied to him by reason of violation.
33. As many countries got off from foreign yolk and became independent with written Constitutions a new thinking came to influence the subsequent decisions in cases involving violation of human rights which were recognised as fundamental to all the citizens. The question, however remains is whether public law remedy of awarding compensation can be availed for every violation of fundamental right ? Whether the exercise of power by the High Court is subject to any limitations while awarding compensation for violation of fundamental rights ? The evolution of public law principle of compensating for violation of fundamental rights especially Article 21 was core issue in various judicial decisions. Some of these are - Rudul Shah v. State of Bihar, , Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026, Bhim Singh v. State of J & K, , Nilabati Behera v. State of Orissa, , Consumer Education and Research Centre v. Union of India, , Daulat Ram v. State of Haryana, , D.K. Basu v. State of West Bengal, , Common Cause v. Union of India, , Shiv Sagar Tiwari v. Union of India, , People's Union for Civil Liberties v. Union of India, , State of Bihar v. Subhash Singh, , Commissioner v. Rohtas Singh, AIR 1998 SC 685, Ajab Singh v. State of U.P. , M.C. Mehta v. Kamalnath, , of Supreme Court; and Ch. Ramakrishna Reddy v. State of A.P., 1989 (2) ALT 1 (DB), (which was affirmed in State of A.P. v. Ch.Ramakrishna Reddy, ), S. Seshaiah v. State of A.P., , and Chairman, Railway Board v. Chandrima Das, , and Nazeer Sahab v. Bibi Jan, , of this Court. It is necessary to refer to a few of them. The subject of constitutional tort as treated by text book writers and Jurists may be considered before adverting to Court Rulings.
General Principles of Constitutional Tort
34. Of late, certain authors of public law as well as tort law have coined the term "constitutional tort," ((a) Clerk and Lindsell on 'Torts'; 18th Edn. Sweet and Maxwell Limited, 2000, (b) 'Torture as Tort' by Graig Scott; HART Publishing, Oxford - Portland/Oregon, 2001, (c) 'Torts: Personal Injury litigation' by William P. Statisky; 4th Edn. (2001)), by their analysis of the cases decided by the Public Law Courts like High Court and Supreme Court where compensation was awarded in public law for violation of basic human rights and civil rights to life and liberty. It is necessary to briefly refer to the concept of tort and Constitutional tort to understand the public law remedy of compensation for violation of right to life and liberty. Tort is a civil wrong that causes injury for other damages for which the local system deems it just to provide remedy for compensation. The conduct may be both crime and tort in which event redress is to be sought in different fora. The criminal law aims at vindicating the public wrong whereas tort law aims at vindicating private civil wrong and as observed by 'William P. Statsky' (see footnote 52(c)) tort law aims at four purposes; peace, deterrence, restoration and justice. What is a constitutional tort and what is the relationship between tort and public law ?
35. Constitutional law embraces the law of the nation relating to the method of choosing Head of the State, Constitution of the Legislatures, its powers and privileges, relations between Central Government and local authorities, the rights and duties of the citizens, civil members and their limitations and general system of the Courts and the method and manner of conducting elections etc. The words constitutional rights, constitutional functions etc., used are in relation to the constitutional law of the nation. When we use the term Constitutional tort in public law, if only means, that conduct which is in breach of the constitutional law, giving rise to in a given case to an action in private law. William P. Statsky defines this as "the phrase constitutional tort refers to a special cause of action that arises when someone is deprived of federal civil rights .........and to deprive someone of federal civil rights under colour of State law can be what is called the constitutional tort."
36. Every breach of constitutional law or every failure to discharge constitutional obligation does not give rise to a constitutional tort. Indeed, Clerk and Lindsell on 'Torts' observed that the extent to which the law of torts should operate to hold public authorities accountable for their dealings with private citizens is in a state of flux. It was further observed "...Public authorities enjoy no general immunity in tort nor are they subject to any system of law akin to droit administratif in France. ....The problems arise when the alleged tortious conduct arises out of a public authority's conduct of its public obligations and the exercise of the statutory powers enjoyed to fulfil those obligations. Should public authorities be liable in tort for poor Government, be it inadequate education for local children, inept inspection of building works or inequitable distribution of health care resources? Claims for breach of statutory duty have generally failed. The learned authors dedicated one entire Chapter (Chapter 12) to public law aspects of tort and a separate sub-chapter is devoted to constitutional torts.
37. Torts like battery, assault, false imprisonment by police officers and other investigating agencies are constitutional torts, because, public authorities are involved in all these torts. Species of tort, that is, trespass to person is relatable to right to life and liberty and whenever a person is subjected to tort of trespass, like battery, assault and false imprisonment etc., the Government official as well as the State vicariously are liable for damages. In that view of the matter, in an action for constitutional tort the respondents can plead the same defences as are available in an action for tort. The defence of official immunity in common law torts is also available in an action for constitutional tort. One such defence is action taken under the law made by Indian Legislature. The same, however, will not be available to an official, if they did not act on tort while performing official functions under the law during the course of their employment and they acted maliciously and not in good faith.
38. There are situations where public officials act within the framework of law, but still by reason of negligence in not adhering to principles of law, it gives rise to a cause of action to constitutional tort. In every case it is for the Court to decide whether or not the action is justified. If every violation of every fundamental right is brought under the purview of constitutional tort and compensation awarded in public law remedy of writ jurisdiction, the State and the Government would become bankrupt and the Government itself would be destroyed. In every such case, the Court should balance the State interest as well as individual interest. If violation is complained in ordinary law which can be duly compensated else where even if it involves violation of fundamental rights, public law remedy of compensating violation cannot be made available. The parties to such cases must be relegated to proper common law remedy. For example, in a case of malicious prosecution against investigating officer the parties may be relegated to avail suit for malicious prosecution.
39. Before noticing some of the Indian cases, a reference may be made to Jaundoo v. Attorney General of Guyana, 1971 AC 972 (PC), decided by the Privy Council. In the said case, the appellant, who was the owner of the land on apprehension that her land will be occupied by the Ministry of Works and Hydraulics for construction of new road in violation of her fundamental right under the Constitution of Guyana applied to High Court for redress under Article 19 of the Constitution of Guyana. A question arose before the High Court whether her application was properly made and whether High Court has jurisdiction to grant motion. The High Court held that an application for redress under Article 19 ought to be made by writ of summons and not by notice of motion and accordingly dismissed the application of the appellant. The land owner's appeal was also dismissed by a majority of the Court of Appeal. The Privy Council set aside the order of the Court of Appeal and remanded the matter to High Court of Guyana to hear and determine whether the appellant is entitled or not by virtue of Articles 8 and 19 of the Constitution of Guyana for payment of compensation or damages. By the time the Court of Appeal heard the matter, construction of new road on appellant's land was completed.
Therefore, the Privy Council observed:
By the time when the land owner's appeal was heard by the Court of Appeal, the circumstances had changed. Construction of the new road on the land had been completed. What had been done, even if it were unlawful, could not be undone. In those circumstances, a money payment to the landowner by way of compensation or damages for the loss caused to her by the Government's action was an appropriate and, indeed, the only practicable form of "redress".
It was also observed:
Both of the Justices of Appeal who held that an originating motion was an appropriate procedure for applications for redress under Article 19 of the Constitution appear to have accepted that the High Court had jurisdiction to assess and award compensation or damages to be paid by the Government of Guyana to the landowner for any contravention of her fundamental rights under the Constitution.......... Their Lordships accept that if the landowner is successful on the merits in establishing her claim that her fundamental rights under Article 8 of the Constitution has been contravened, any order for redress to be made by the High Court against "the Government of Guyana" ought not to be made in form, as it cannot be in substance, coercive. There is more than one way in which this could be avoided. The order could be declaratory in form and declare the right of the landowner to be paid by the Government of Guyana the amount assessed by the Court as appropriate redress by way of compensation or damages.
40. In Maharaj v. Attorney General of Trinidad, 1978 (2) All.ER 670, a question arose before the Privy Council whether a person complaining deprivation of liberty otherwise than by due process of law is entitled to redress by way of monetary compensation under Section 6 of the Constitution of Trinidad and Tobago. In the said case, an Advocate was committed to seven days imprisonment for Contempt of Court by Hon'ble Judge Maharaj of High Court of Trinidad and Tobago. On the date of the judgment the Lawyer applied before another High Court Judge for immediate release and for damages for wrongful detention and false imprisonment against the respondent. The Judge directed that the appellant be released forthwith. However, a third Judge dismissed the motion case and ordered that the appellant should undergo remaining six days imprisonment and he was accordingly imprisoned. He filed an appeal before the Court of Appeal and while the same was pending he also appealed to Judicial Committee of the Privy Council whereupon the appeal was allowed by the Privy Council on the ground that committal order did not specify nature of the contempt charged against the appellant. The Court of Appeal dismissed the appeal on the ground that although High Court Judge has jurisdiction under Article 6 to grant relief for contravention of the Constitutional rights, which resulted from the order of another High Court Judge acting in his judicial capacity, the failure of the Judge to inform the nature of the contempt charged did not contravene the rights under Section 1(a) of the Constitution. A further appeal was filed before the Privy Council. Lord Diplock, who delivered the majority judgment referred to Chapter-I of the constitution of Trinidad and Tobago (Recognition and Protection of Human Rights and Fundamental Freedoms), especially Sections 1 to 5 and considered, inter alia the question whether the appellant was entitled to monetary compensation for the period he spent in prison.
41. The Law Lord relied on Section 6(1) which laid down that the citizen may apply to the High Court for redress... ...without prejudice to any other action in respect of the same matter which is lawfully available. Therefore, whenever there is a contravention of fundamental rights complained by reason of the remedy available under Section 6(1) of the Constitution the Court had inherent powers and it was legitimate to claim monetary compensation for any contravention. Such compensation can be awarded for any contravention that already resulted and for the consequences by reason of the contravention. The principle was explained thus:
The claim is not a claim in private law for damages for the tort of false imprisonment, under which the damages recoverable are at large and would include damages for loss of reputation. It is a claim in public law for compensation for deprivation of liberty alone. Such compensation would include any loss of earnings consequent on the imprisonment and recompense for the inconvenience and distress suffered by the appellant during his incarceration. Counsel for the appellant has stated that he does not intend to claim what in a case of tort would be called exemplary or punitive damages. This makes it unnecessary to express any view whether money compensation by way of redress under Section 6(1) can ever include an exemplary or punitive award.
42. I have referred to the two cases decided by the Privy Council to point out that the public law remedy for compensating the violation of fundamental rights is not available in respect of each and every violation and it is only available when there is actual and factual deprivation of life and liberty alone. This is further clear from various decisions of the Hon'ble Supreme Court as well as this Court.
43. In Rudul Shah v. State of Bihar (supra) the petitioner was acquitted in a criminal case, but he was released after fourteen years of acquittal on the ground that he was insane. The Supreme Court did not accept the contention of the Jail authorities that Rudul Shah was insane and therefore, the Apex Court accepted the contention of the petitioner that he is entitled for compensation for the illegal incarceration. It was held that when the State grossly violates Article 21 the Court can compel the compliance with the mandate of Article 21 in different ways. It was held:
In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant Infringements of fundamental rights cannot be corrected by any other method open to the Judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilization is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers,
44. In Sebastian M. Hongray v. Union of India (supra) the Supreme Court had issued a writ of Habeas Corpus directing the respondents to produce C. Daniel, retired Naik Subedar of Manipur Rifles and Head Master of the Junior High School of Huining Village and C. Paul, Assistant Pastor of Huining Baptist Church, who were taken to Phungrei Camp by the jawans of 21st Sikh Regiment. After receiving writ, the Director in Ministry of Defence filed a return stating that in spite of best efforts, the respondents are unable to produce the two persons as directed by the Court. In view of this, the Court came to the conclusion that there is failure on the part of the respondents to produce missing persons. What is the appropriate mode of obedience to Writ of Habeas Corpus ? The Court opined that the appropriate mode of enforcing writ of Habeas Corpus is by contempt against a person who fails to comply with the order. It was also further held that in a given case the Court may also penalise the authority in contempt by ordering him to pay the costs of the application and accordingly directed respondents 1 and 2 to pay an amount of Rs. 1,00,000/- each to the wives of the missing persons. The Court also directed for registering offence for murder and to commence investigation as prescribed by the Code of Criminal Procedure.
45. In Bhim Singh v. State of Jammu and Kashmir (supra) the petitioner, who was a Member of Legislative Assembly was arrested at Qazi Kund about 70 Kms. away from Srinagar. His wife filed a writ petition before the Supreme Court seeking a declaration that his detention was illegal, and a direction to set him at liberty. Bhim Singh was released by Additional Sessions Judge, Jammu. The Supreme Court came to the conclusion that when Constitutional rights of Bhim Singh were violated with impunity and when a person's fundamental, Constitutional and legal rights are neglected it is competent for the Court to award compensation. It was also further laid down as under:
......We have no doubt that the constitutional rights of Shri Bhim Singh were violated with impunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but suitably and adequately compensated, he must be. That we have the right to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of this Court in Rudul Sah v State of Bihar, and Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026. When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation.
46. In Nilabati Behera v. State of Orissa (supra) son of the petitioner died in Police custody. The Court directed the District Judge, Sundergarh, Orissa, to hold enquiry and submit report. A report was submitted by the District Judge to the effect that Suman Behera died due to multiple injuries inflicted on him while he was in Police custody. The Supreme Court considered the question whether it was custodial death and found that it was indeed a custodial death. The Counsel for the State did not dispute the liability of the State for payment of compensation for violation of fundamental right to life under Article 21 as it is a custodial death. After referring to relevant case-law, the Supreme Court proceeded to spell out the principle on which the liability of the State arises in cases for payment of compensation and the distinction between liability under the Constitution and the liability in private law for payment of compensation in action or tort. It was held that the awarding of compensation in a proceeding under Article 32 by the Supreme Court and under Article 226 by the High Court is a remedy available in public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply though the same is a defence in private law in an action based on tort.
47. The plea of sovereign immunity has no application in constitutional scheme and cannot be pleaded as defence to the constitutional remedy under Article 32 and Article 226 of the Constitution. The only practicable mode of enforcement of fundamental rights is by awarding of compensation. The Court then referred to Privy Council decision in Jundoo v. Attorney General of Guyana (Supra) and Maharaj v. Attorney General of Trinidad and Tobago (supra) as well as Article 9(5) of International Covenant on Civil and Political Rights, 1966. While holding that the public law remedy for compensation has to be more readily available when invoked by "have nots" who are not possessed of wherewithal for enforcement of right in private law, the Supreme Court observed as under:
It follows that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental rights is distinct from, and in addition to the remedy in private law for damages for the tort resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.
48. In D.K. Basu v. State of West Bengal (supra) the Supreme Court observed that the Constitution of India does not contain express provision for grant of compensation for violation of fundamental right to life. It evolved the right to compensation in cases of established constitutional deprivation of personal liberty or life. The principle postulates that the Court cannot stop by giving mere declaration that there is infringement of fundamental right. It must proceed further and give a compensatory relief not by way of damages as in civil action, but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State in not protecting the fundamental right to life of the citizen as explained by the Supreme Court as under:
Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, a useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the bread winner of the family......It is now a well accepted proposition in most of the jurisdiction, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts.......The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit. (See paragraphs 42, 44 and 55 of AIR),
49. The Apex Court also observed that the claim of compensation based on strict liability is in addition to the claim available in public law for damages for tortious acts of public servants and public law proceedings serve a different purpose than the private law proceedings. State can also recover compensation amount from the public servant who infringed the fundamental right to life.
50. In Ch. Ramakrishna Reddy v. State of Andhra Pradesh (supra) a father and his son were arrested and lodged in sub-jail in connection with a crime. Some miscreants entered the sub-jail and hurled bombs by reason of which father died and son escaped with injuries. A suit was filed for damages estimated at Rs. 10,000/-. The State opposed the suit denying any liability and claimed sovereign immunity. The suit was dismissed by the learned Subordinate Judge. In appeal a Division Bench of this Court considered the question of limitation, the question whether the officials of sub-jail were negligent in guarding the deceased and the question whether the State is liable to pay compensation/damages. The Court came to the conclusion that it is an omission to perform the statutory responsibility placed on the officials of the sub-jail. On the question of the liability of the State to pay compensation, the Court referred to Rudul Shah v. State of Bihar, Sebastian M. Hongray v. Union of India, Bhim Singh v. State of Jammu and Kashmir and Maharaj v. Attorney General of Trindad and Tobago (supra) and observed that right to life and liberty guaranteed by Article 21 of the Constitution is fundamental and basic and that no compromise is possible with this right. It is non-negotiable. The State has no right to take any action which will deprive a citizen of the enjoyment of his basic right except in accordance with law which is reasonably fair and just. The Court then referred to two hypothetical cases as under.
We shall take two hypothetical cases to test the proposition. One is a case where a person who is arrested and lodged in a jail. While in jail he suffers from a heart-attack and cries for relief. The officres guarding the prison notice his condition, realise that he needs medical attention, but fail to take any steps for providing such relief, though several hours pass by. The man dies. Had the person not been arrested and put in jail, he would have been at home among the members of his family and/or friends, who would have definitely provided him medical relief and saves his life. Having arrested him, having confined him in jail, away from his relations and friends, and having allowed him to suffer and die without taking any steps for rendering medical help, can the State still claim that it is not liable? Can the theory of sovereign power be a complete answer to this kind of gross negligence?
51. The Court while observing that Article 21 does not recognise any exception and no such exception can be read into Article 300 (1) held that where the citizen has been deprived of his life or liberty otherwise than in accordance with the procedure prescribed by law, the State cannot escape the liability. The decision of the Division Bench of this Court was challenged in appeal before the Supreme Court which was dismissed in State of A.P. v. Ch. Ramakrishna Reddy (supra). The Supreme Court after referring to Nilabati Behera v. State of Orissa (supra) and D.K. Basu v. State of West Bengal (supra) upheld the judgment of this Court and held that when persons suffered injuries at the hands of the officers of the Government, including Police Officers and personnel, compensation can be awarded for the tortuous act.
Principles of Constitutional Tort
52. The principles that emerge from the decided cases in India and Britain are as under:
(i) Torts like assault, battery, and false imprisonment which are trespass to person by Police Officer and investigating agencies which are not authorised under law are Constitutional Torts.
(ii) Awarding of compensation is public law remedy and available in a claim for deprivation of life and liberty alone. The compensation awarded is for the pecuniary and non-pecuniary loss suffered by the person due to illegal detention/imprisonment and is given to recompense for the inconvenience and distress suffered by the person.
(iii) The order of compensation is in the nature of palliative and is passed to mulct the violators of the fundamental rights in payment of monetary compensation.
(iv) When a person is arrested and imprisoned with malicious intention his constitutional and legal rights are said to be invaded. The malice and invasion of the right is not washed away by setting the person free and in appropriate cases the Court has jurisdiction to award compensation to the victim.
(v) The public law remedy of monetarily compensating the violation of fundamental rights is part of the constitutional scheme based on strict liability for such contravention of rights and therefore the principle of sovereign immunity does not apply as it applies in private law.
(vi) Judicially evolved right to compensation in public law is available for breach of public duty by the State of not protecting the fundamental right, but it is given for infringement of inalienable right to life and by way of applying balm to the wounds of the deceased family.
(vii) For the tortious acts of the Government Officers and Police Officers, the State is liable to pay compensation for violation of fundamental rights to life and liberty.
(viii) The order for awarding compensation need not be in the coercive form. It can be by way of declaration of the right of the person to be paid by the Government certain amount to be assessed by the Court. This is especially so in a case where fundamental right to property is breached in violation of law.
53. Lastly, it must be remembered that fundamental right in Part-III of the Constitution provide a charter of dos and don'ts. They only bind on the State and not an individual. If an individual transgresses or violates the fundamental rights of others, the same does not give rise to action under public law. When there is dispute in tort between two individuals, the State cannot be compelled to pay compensation for violation of fundamental right of others. The State has no obligation to ensure the compliance of fundamental rights of a citizen by another citizen.
54. In Deshaney v. Winnebago, 489 US 189 (1989), the U.S. Supreme Court considered the question whether the State has duty under due process clause to protect life and liberty of its citizens against invasion by private authorities. In that case, a four-year-old boy in Winnebago County was severely beaten by his natural father as a result of which the boy suffered immense brain damage. His mother and the boy sued the Winnebago County alleging that the County and its employees deprived the boy of its liberty without due process of law in violation of his rights under constitutional Fourteenth Amendment by failing to intervene to protect him against the risk of violence of which they knew or should have known. The U.S. District Court for the Eastern District of Wisconsin dismissed the boy's claim which was affirmed by the U.S. Court of Appeal for the Seventh Circuit. The U.S. Supreme Court by a majority of 6:3 affirmed the opinion of the Court of Appeal. Chief Justice Hon. William H. Rehnquist, who delivered the opinion for the majority observed:
But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Nor does history support such an expansive reading of the constitutional text.... Like its counterpart in the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment was intended to prevent Government "from abusing (its) power, or employing it as an instrument of oppression"... ..... Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of Governmental obligation in the latter area to the democratic political processes.
55. Though the State has a limited role to guarantee certain minimum level of safety and security, the State cannot be held responsible for violation of fundamental rights of citizens by other citizens. Similar observations made by the Supreme Court in N.H.R.C. v State of Arunachal Pradesh, . Action for constitutional tort arises only when such tort is perpetrated or abetted by public authorities and Government officials.
56. As already discussed in Point No. 2, the Land Acquisition Act is a comprehensive law dealing with all aspects of compensating the deprivation of the land. Whether or not there is a delay, the law has taken care of such delays. It is always open to the petitioners to claim compensation before the land acquisition authorities from the date of taking possession. Deprivation of property is not violation of fundamental right. Therefore, the petitioners cannot contend that this is an action for constitutional tort. The petitioners are also guilty of delay and laches and jurisdiction under Article 226 of the Constitution being discretionary, cannot be exercised in their favour.
57. In the result, for the above reasons, Writ Petition fails and is accordingly dismissed. There shall be no order as costs.