1. In this writ petition under Article 226 of the Constitution the petitioner has prayed for a direction on the respondents to pay the damages/compensation of Rs. 40 lakhs.
2. The petitioner's case in this writ petition is that he has been staying in an additional house near the quarter No. T-27-A with permission from the General Manager, North East Frontier Railway-respondent No. 2. His niece Miss Rumi Bhattacharjee, a daughter of a Railway employee and a student of Post Graduate Courses of studies in the subject of Geology of Gauhati University was also staying with him in the said house occasionally and she had kept her reading and writing materials in the said house. The respondent No. 9, T.N. Bordoloi disconnected the electricity lines to the said house in April, 1995 and the petitioner filed Civil Rule No. 1515/95 and by order dated 7.4.1995 this Court directed to restore electricity and water supply to the premises under the occupation of the petitioner immediately and the petitioner would undertake before this Court to vacate the premises. By the said order dated 7.4.1995 the Court also directed the Officer-in-Charge, Panbazar Police Station to ensure that the life of the petitioner and his niece was safe. In compliance with the said order the electricity supply and water supply were
restored to the said premises. On 26.4.1996, however, at about 10.30 P.M. the respondent No. 6 Manas Mazumdar sprayed petrol at the back side of the petitioner's house to compel him to leave the place. The police came from the Panbazar Police Station to investigate into the petrol incident, but the respondent No. 6 was not arrested. On the following day between 3.15 to 6.30 P.M. the petitioner was gheraoed and kept inside the house of the respondent No. 9, T.N. Bordoloi. The petitioner was then made to put his signature on a piece of paper to the effect that the petitioner had got back all his belongings. On reaching his Chamber at Ulubari the petitioner telephonically informed the Panbazar Police Station of all that had taken place and sought police protection and the petitioner was told over the phone that since it was a polling day for want of sufficient police men nothing could be done that night and that he should personally report next morning to the police station when security shall be provided to him. The petitioner reported to the Panbazar Police Station next morning i.e. on 28.4.1996 and the Officer-in-Charge Mr. A. Rahman was going to take appropriate steps, but this could not be done because of the City Deputy Superintendent of Police, Panbazar Division who instigated respondent No. 7 Anjan Kar, Officer of N.F. Rly. Maligaon to go ahead to demolish the house of the petitioner contrary to standing instructions of the High Court and goaded by such uncalled for instigation by the respondent No. 4 and unauthorised handling of the situation by respondent No. 7, the other unruly members of the illegal assembly as mentioned above took away the belonging to the petitioner and his niece, and the petitioner had to put his signature on another piece of paper and the house of the petitioner was finally razed to the ground by the respondent Nos. 5 and 7 to 12. Thereafter on 5.5.1996 the petitioner was allowed to take back his things, but later, on scrutiny, the petitioner found that he had lost 18 valuable manuscripts, 20 rare books and rare photographs which he collected and prepared from different sources, his all certificates and diplomas and several briefs of his clients, some examination preparation material, dissertation and diagrams of his niece. The petitioner has estimated that the value of the aforesaid materials in monetary terms would be Rs. 40 lakhs. The petitioner submitted a representation dated 8.5.1996 to the General Manager, North East Frontier Railway, Maligaon, Guwahati demanding compensation of Rs. 20 lakhs with interest and a representation dated 7.6.1996 to the State Government, Assam demanding a sum of Rs. 20 lakhs.
3. Dr. A.K. Bhattacharjee, petitioner in person, submitted at the hearing that it is a fit case in which compensation should be awarded
by the court for the illegal acts of the respondents as narrated in the writ petition. He cited the decision of the Supreme Court in P.A. Narayanan v. Union of India (1998) 3 SCC 67 in which the Supreme Court awarded compensation of Rs. 2 lakhs to the appellant for the death of his wife due to criminal assault in the train between Bandra and Andheri Railway Station by some miscreants. Dr. Bhattacharjee also relied on the decision of the Supreme Court in Chairman, Railway Board v. Chandrima Das (Mrs.) (2000) 2 SCC 465 in which the compensation awarded by the High Court in a writ petition under Article 226 of the Constitution to a lady who had been raped by some employees of the Railways soon after she arrived at the Railway Station from Bangladesh was up-held by the Supreme Court. According to Dr. Bhattacharjee a compensation of Rs. 20 lakhs should be awarded against the Railways for the illegal acts of the employees of the Railways in this case. He further submitted that in any case the State of Assam was liable to compensate the petitioner for the assault on him and for the value of his manuscripts particularly when by orders passed by this Court in Civil Rule No. 1515/95 the police of the State of Assam were required to protect the petitioner.
4. Mr. B.K. Sarma, learned counsel appearing for the respondent Nos. 1 and 2 in his written submissions contended that the Writ Petition was not maintainable and by order dated 4.6.1998 this Court while issuing rule had left the question of maintainability of the writ petition open to be decided at the time of hearing of the writ petition. Mr. Sarma submitted that in the writ petition no allegation has been made that any illegal acts have been committed by the railway authorities and that the allegation of the illegal acts are all against the private respondents. He further submitted that the writ petition involves disputed questions of fact which cannot be decided by this Court under Article 226 of the Constitution and in any case there is no allegation of violation of fundamental rights of the petitioner by the respondent Nos. 1 and 2 and it is well settled in law that the court cannot award compensation to the petitioner in a writ petition where fundamental rights are not violated. Mr. Sarma also relied on the affidavit-in-opposition filed on behalf of the respondent Nos. 1 and 2 in which the various allegations made in this writ petition have been dealt with.
5. Mrs. Sarada Begum, learned counsel appearing for the respondent No. 7 also submitted in her written submissions that the writ petition was not maintainable and was liable to be dismissed in limini as it involves disputed questions of fact. She has also relied on the affidavit-in-opposition filed by the respondent No. 9 denying the allegations made in the writ petition.
6. The first question that has to be decided in this writ petition is whether this petition under Article 226 of the Constitution is maintainable. In P.A. Narayanan v. Union of India (supra) cited by Dr. A.K. Bhattacharjee the facts were that the wife of the appellant left for her College and travelled by Harbour Line Local Train to Bandra from Kings Circle. She boarded a Western Railway Local Train for Andheri. She was travelling on a first class railway pass in the first class ladies compartment. Before she could reach her destination at Andheri, she was criminally assaulted and also robbed of her gold chain, three bangles and a wrist-watch between Bandra and Andheri Railway Station while the train was in motion. She pulled the alarm chain but despite the ringing of the alarm bell neither the guard nor the motorman stopped the train. She ultimately succumbed to the injuries in the compartment. A writ petition was filed by the appellant claiming compensation from the railways, but the High Court dismissed the writ petition. The Supreme Court held that there is a common law duty of taking reasonable care which must be attached to all carriers including the Railways and there has been a breach of the duty and the negligence on the part of the railway staff was writ large. Had the train been stopped the fist aid provided when the alarm chain was pulled, the possibility that the deceased may not have met her death would not be totally ruled out. It was, therefore not a case where the omission on the part of the railway officials can be said to be wholly unforeseen or beyond their control. There has been a complete dereliction of duty which resulted in a precious life being taken away, rendering the guarantee under Article 21 of the Constitution illusory. In the established facts and circumstances of that particular case, keeping In view the evidence of the guard and the motorman and with a view to do complete justice between the parties the Supreme Court awarded a sum of Rs. 2 lakhs as compensation to the appellant for the death of her wife.
7. In Chairman, Railway Board v. Chandrima Das (supra) also cited by Dr. A.K. Bhattacharjee, the facts briefly are that Smti Hanuffa Khatoon came from Bangladesh and arrived at Howrah Railway Station on 26th February, 1998 to avail Jodhpur Express on the same day for paying a visit to Ajmer Sharif. While she was in waiting room of the Hawrah Station she was taken to Rail Yatri Niwas and gang raped by some railway employees. Mrs, Chandrima Das, a practising Advocate of the Calcutta High Court filed a writ petition under Article 226 of the Constitution against the Railway authorities and the High Court awarded a sum of Rs. 10 lakhs compensation for Smti Hanuffa Khatoon. The High Court was of the view that the rape was committed at the Yatri Niwas and purportedly by railway
employees. The railway challenged the said judgment of the Calcutta High Court before the Supreme Court contending that Smti Hanuff Khatoon should have approached before the Civil Court for damages and the matter should not have been considered in a writ petition under Article 226 of the Constitution. The Supreme Court did not accept the said contention holding that public functionaries are involved and where matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would still be available under the public law notwithstanding that a suit could be filed for damages under private law. The Supreme Court further observed that in Bodhisattwa Gautam v. Subhra Chakraborty the Court has held 'rape' as an offence which was violative of the fundamental rights of a person guaranteed under Article 21 of the Constitution and thus the case was not a mere matter of a violation of an ordinary right of a person that a violation of fundamental right.
8. Thus, in both the aforesaid cases of P.A. Narayana v. Union of India and in Chairman, Railway Board v. Chandrima Das (supra), the Supreme Court held that compensation can be awarded in the writ petition under Article 226 of the Constitution where there is a violation of fundamental rights of a person or there is breach of duty by a public body. In the present case, no such case of violation of fundamental right or breach of duty of public body has been made out in the writ petition. As alleged in the writ petition, the private respondents 5, 6, 7, 9, 10, 11 and 12 have committed some illegal acts on account of which the petitioner has suffered damages to the tune of Rs. 40 lakhs. These allegations have not been admitted by the respondent Nos. 1 and 2 in their affidavit-in-opposition. On the other hand, in Para-5 of the writ petition, the petitioner himself has stated that the respondent No. 2 in compliance of the orders of this Court in Civil Rule No. 1515/95 has restored water supply and electricity supply to the house in which the petitioner was living. This, it is difficult to hold that respondent Nos. 1 and 2 have violated any fundamental rights of the petitioner or have committed breach of their public duties to the petitioner. In Tamil Nadu Electricity Board v. Sumathi, 2000 SC 1603 the Supreme Court held that when a disputed question of fact arises and there is clear denial of any tortuous liability, remedy under Article 226 of the Constitution may not be proper. In the said decision, however, the Supreme Court held that where there is negligence on the face of and there is infringement of Article 21, there will be no bar to proceed under Article 226 of the Constitution. Since in the present case, the petitioner has not been able to make out negligence on the face of it or infringement of fundamental right under Article 21 of the Constitution against
respondent Nos. 1 and 2, this writ petition under Article 226 of the Constitution is not maintainable against the respondent Nos. 1 and 2.
9. Similarly no case of violation of fundamental rights under Article 226 of the Constitution of breach of duty has been made out in the writ petition against the respondent No. 3, the State of Assam. Some allegations however, have been made against the respondent No. 4, City Deputy Superintendent of Police in Para-11 of the writ petition. It has been alleged that when the Officer-in-charge of the said Police Station Mr. A.Rahman was going to take appropriate steps on the complaint of the petitioner on 28.4.1996 the respondent No. 4 intervened in the matter and instigated respondent No. 7 Anjan Kar to go ahead to demolish the house of the petitioner over-riding the orders of this Court in Civil Rule No. 1515/95. This allegation against the respondent No. 4 is really an allegation of interference with the administration of justice and has also been made by the petitioner in the Contempt Case No. COP(C)354/96. A separate order has been made in the said COP(C)No. 354/96 by this Court today calling upon the respondent No. 4, Mr, K.N. Choudhury to file a show cause in the said contempt case. In case Mr. K.N. Choudhury is found guilty of contempt of Court, he will be punished accordingly by this Court. But since besides these, allegations of contempt of Court, no case of violation of fundamental rights or no case of breach of duty of a public authorities has been made out by the petitioner against State of Assam, this writ petition under Article 226 of the Constitution against the State of Assam is also not maintainable.
10. It is also settled position of law that a writ petition under Article 226 of the Constitution against private persons for compensation is not maintainable. Hence, the writ petition against respondent Nos. 5 to 12 is not maintainable. It, however, appears that respondent Nos. 5 to 12 have also been impleaded as condemners in COP(C)354/96 and some allegations have been made against them to show that the orders of this Court in Civil Rule No. 1515/95 were violated by them. A separate order has been passed today in the said contempt case and the said allegations will be dealt with separately in the said contempt case.
For the aforesaid reasons, I find no merit in this writ petition and accordingly dismiss the same. Considering the facts and circumstances of the case, the parties shall bear their own costs.