Sanjay Kishan Kaul, J.
1. The petitioner has filed a writ petition under Article 226 of the Constitution of India which is in the nature of a recovery claim on account of the failure of the respondents to take necessary steps for forwarding the application of the petitioner for compensation to the United Nations Compensation Commission (hereinafter referred to as 'UNCC').
2. The petitioner is a Chartered Accountant and shifted to Kuwait in 1980. The petitioner was working as the Financial Controller in Alghanin Industries when Iraq occupied Kuwait in August, 1990. The petitioner claims that he and his wife had to leave behind all belongings and through Jordan came to Bombay in September, 1990. On normalcy being restored in Kuwait, the petitioner returned in June, 1991 but during this period from September, 1990 to June, 1991 was unemployed in India.
3. The UNCC was authorised to go into the claims for compensation of residents of Kuwait. Procedures were prescribed for making such claims. The petitioner was entitled to claim 'A' and 'C'. Claim 'A' was standard compensation of US$ 2,500 while claim 'C' was for damages and losses of personal effects, property and income up to a total of US$ 1,000. The petitioner submitted both the claims to the Embassy of India at Kuwait. The Ministry of External Affairs, respondent had set up a Special Kuwait Cell at New Delhi which was to receive all the claims from the Embassy in Kuwait, process them and thereafter forward them to the UNCC for approval and settlement. The petitioner is stated to have filed both the claims on 28.10.1992. The petitioner has filed the Acknowledgment Receipt of the Embassy of India, Kuwait where both claim 'A' and 'C' have been ticked.
4. There is no dispute about the receipt of claim 'A' of the petitioner which was duly acknowledged by the respondents in 1995. However, it is stated that on enquiry it was found that the claim 'C' was not in the records of the Ministry and the papers had been misplaced either in transit between Kuwait and New Delhi or at New Delhi office.
5. The petitioner was advised to submit his claim afresh and such fresh claim was submitted on 5.10.1995 which was duly acknowledged. The petitioner claims that he was informed that his claim had been sent to Geneva along with supporting documents and was informed by respondent No. 2 by the letter dated 10.5.1996 that the petitioner's claim had been forwarded to the UNCC but after the stipulated deadline of 1.1.1995. It was, however, supported by reasons justifying the circumstances as to why the claim could not be sent earlier.
6. The claim 'A' of the petitioner was approved as informed by respondent on 10.3.1998 and the amount is stated to have been received in the beginning of 2001. The petitioner claims to have followed up the matter both at Delhi and the UNCC office at Geneva through his representatives and was informed that his claim was not registered with the UNCC office. The petitioner was informed by the UNCC office as per the letter dated 27.4.1999 that the claim had to be processed through the Government of India. The petitioner finally received a communication dated 10.1.2000 from the respondent informing that his claim 'C' had not been approved though subsequently another letter dated 18.1.2000 was received informing that his claim 'C' was still being processed.
7. The petitioner finally sent a legal notice dated 5.3.2001 to the respondent and the respondent by the letter dated 16.3.2001 informed the petitioner that his claim 'C' had been rejected.
8. The grievance of the petitioner is that his claim has been misplaced by the respondents and was not forwarded within time with the result that same could not be processed by UNCC. It is the contention of the petitioner that the petitioner is entitled to the claim made as in most of the matters, the claim has been processed and paid as claimed for and in any case the petitioner cannot be prejudiced due to the negligence of the respondent.
9. The respondents have resisted the petition. One of the preliminary issues raised is about the maintainability of such a writ petition which is really for recovery of a money claim. An objection has also been raised that the claims were being processed by the UNCC and not by the Government of India which was merely a post office and thus the respondents cannot be made liable. A dispute was also raised about a number of documents filed with the writ petition which were not available in the records of the respondents and thus it has been submitted that such disputed questions cannot be decided in the writ proceedings.
10. The respondents state that the UNCC continued to accept claims till 1.1.1996 where the Government certified that the delay in submission of formalities was due to bureaucratic delay, postal delay or break down of civil order beyond the control of the claimant. However, as none of these conditions applied to the petitioner, the claim sent by the respondent in October, 1995 was not entertained. The respondents initially even sought to dispute the receipt of the claim originally made in 1992 but could not seriously dispute this aspect as the acknowledgments of the respondents itself certified to the receipt of such a claim.
11. The respondents state that every claimant was issued an acknowledgment card and the acknowledgment card provided as under:
Dear SirMadam,
Your compensation claim, details of which are given overleaf, has been registered and forwarded to the United Nations Compensation Commission, Geneva for further action. If you have applied under any other category also, separate acknowledgment will be sent in due course.
Discrepancy, if any, in the details of the claim should be brought to our notice immediately. Please quote the registration number given overleaf for all further correspondence.
SPECIAL KUWAIT CELL
12. It was thus contended that if the petitioner did not receive category 'C' acknowledgment card after he received the category 'A' acknowledgment card, he should have immediately contacted the Special Cell and it would have been possible to process the matter within time. The petitioner, however, submitted his form again only in October, 1995 which was beyond deadline stipulated by UNCC.
13. The mistake in the communications in January, 2000 is stated to have arisen on account of the fact that such communications were based on computer data generated by National Informatics Centre and there were some claims shown under process which should actually have fallen in the category of 'not approved' claims. In so far as the verification of the original documents filed with the petition is concerned, the same were produced for verification before this court.
14. A specific query was raised about the date of the receipt of the acknowledgment card of claim 'A' and in pursuance to the order dated 23.9.2005, an affidavit was filed by the petitioner dated 25.11.2005. This was so since the acknowledgment card did not contain a date. The petitioner has stated in the affidavit that the acknowledgment card for claim 'A' was given to the friend/representative of the petitioner stationed in Delhi around April, 1995 since the petitioner at that time was working in London. However, in this behalf, learned counsel for the respondent points out that the card itself contains the word 'duplicate' which would imply that the petitioner had been issued an earlier card. It was thus submitted that such duplicate cards were issued at that time wherever a claimant set out that the original card had been lost.
15. Learned counsel for the petitioner contended that the present case was one of tortious liability of the State arising from the negligence in forwarding the claim of the petitioner. In this behalf, learned counsel referred to the judgment of the apex court in Saheli, a Women's Resources Centre and Ors. v. Commissioner of Police and Ors. : AIR1990SC513 . Similarly, in M.S. Grewal and Anr. v. Deep Chand Sood and Ors. : AIR2001SC3660 , a writ petition for compensation filed against school authorities by parents of children who had died due to drowning in school picnic, was entertained and the compensation awarded on account of lack of duty of care and negligence by the teachers who accompanied the students. Learned counsel also referred to the judgment of the Home Office v. Dorset Yacht Co Ltd. [1970] 2 All ER 294 where a claim for damages was entertained in a case of the escape by trainees of borstal working under the control of Home Department officers and the damage caused to the yacht belonging to the petitioner as a consequence thereof.
16. Learned counsel for the petitioner submitted that the relief for such compensation in a writ of mandamus can always be moulded specially when the right of livelihood, health, medical aid and social justice is impinged which is protected under Article 21 of the Constitution of India.
17. Learned counsel also made reference to the judgment of this court in Ashwani Gupta v. Government of India and Ors. 2005 II AD Delhi 391 where the petitioner had suffered grievous injury as a result of a bomb blast by anti-social elements when amount was awarded on the principle that the State had a responsibility to protect the lives of the citizens.
18. Learned counsel for the respondent while opposing the petition referred to the judgment of the Supreme Court in Hindustan Petroleum Corporation Ltd. and Anr. v. Dolly Das : (1999)4SCC450 to advance the proposition that in the absence of any statutory right, Article 226 cannot be availed of to claim to any money in respect of the breach of contract. Similarly, a reference was made to the judgment of the apex court in National Textile Corporation v. Haribox Swalram : AIR2004SC1998 where it was observed that a writ of mandamus cannot be issued directing an appellant to supply the goods (cloth). As such a writ would be issued only to compel the authorities to do something where the obligation is imposed by a statute and consequently a legal duty. The substratum of the submission of the learned counsel for the respondent was that it is only in case of violation of Fundamental Rights under Article 21 of the Constitution could the compensation be awarded, as noted in the case of Hindustan Paper Corporation Ltd. v. Ananta Bhattacharjee : (2004)6SCC213 . The Supreme Court observed in para 8 as under:
8. The question which arises for consideration is as to whether in exercise of its jurisdiction under Article 226 of the Constitution of India such a direction was permissible in law. We are of the opinion that it was not. Public law remedy for the purpose of grant of compensation can be resorted to only when the fundamental right of a citizen under Article 21 of the Constitution is violated and not otherwise. It is not every violation of the provisions of the Constitution or a statute which would enable the court to direct grant of compensation. The power of the court of judicial review to grant compensation in public law remedy is limited. The instant case is not one which would attract invocation of the said rule. It is not the case of the respondents herein that by reason of acts of commission and omission on the part of the appellant herein the fundamental right of the respondents under Article 21 of the Constitution has been violated.
19. learned counsel for the respondent also submitted that even assuming there is some negligence on the part of the respondent in forwarding the claim, every infraction of public duty by every public officer would not result in grant of a compensation in a petition under Article 226 of the Constitution by applying the principles of public law. In this behalf, learned counsel referred to the observations in Rabindra Nath Ghosal v. University of Calcutta and Ors. : [2002]SUPP2SCR698 , in para 9 as under:
In Courts having the obligation to satisfy the social aspiration of the citizens have to apply the tool and grant compensation as damages in a public law proceedings. Consequently when the Court moulds the relief in proceedings under Articles 32 and 226 of the Constitution seeking enforcement or protection of fundamental rights and grants compensation, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizens. But it would not be correct to assume that every minor infraction of public duty by every public officer would commend the Court to grant compensation in a petition under Articles 226 and 32 by applying the principle of public law proceeding. The Court in exercise of extraordinary power under Articles 226 and 32 of the Constitution, thereforee, would not award damages against public authorities merely because they have made some order which turns out to be ultra vires, or there has been some inaction in the performance of the duties unless there is malice or conscious abuse. Before exemplary damages can be awarded it must be shown that some fundamental right under Article 21 has been infringed by arbitrary or capricious action on the part of the public functionaries and that the sufferer was a helpless victim of that act.
20. Learned counsel for the respondent emphasised that the petitioner had not pleaded 'malice' or 'conscious abuse' on the part of the respondents and that the respondents had taken all due care in dispatching claim 'C' form. The question of delay attributable to the petitioner could only be examined during the course of evidence and disputed questions of fact could not be determined in the present proceedings. In this behalf, reference was made to the judgment of the apex court in Chairman, Grid Corporation of Orissa Ltd. and Ors. v. Smt. Sukamani Das and Anr. : (1999)7SCC298 . The Supreme Court observed that in all cases where actions in tort and negligence was required to be established first, the questions could not necessarily be decided properly on the basis of affidavits alone. Thus, where disputed questions of fact are involved, a petition under Article 226 of the Constitution of India is not the appropriate remedy.
21. On consideration of the submissions of the learned counsel for the parties, the factual matrix which emerges is that the petitioner did apply both for claim 'A' and claim 'C'. Claim 'A was processed and paid while claim 'C' was not paid. The papers of claim 'C', though received by the respondents as per the documents filed, were either lost in transit or mis-located. However, a material fact is that when claim 'A' was acknowledged, the standard form of the card dispatched to such claimants stipulated that in case any other claim had been lodged, the acknowledgment of which was not received, steps should be taken by the claimant. This card is stated to be received in 1995 but does not bear any date. The card is also a duplicate one. The petitioner has stated that this card was received some time in April, 1995. It is only during the course of recording of testimony can the correct facts in this behalf be brought out. This would include aspects such as the date of receipt of the said card, as to why a duplicate card was sought etc. If the original card has been received earlier, which is denied by the petitioner, then the question of delay and laches on the part of the petitioner in following up claim 'C' would arise.
22. It is also to be kept in mind that the role of the respondents was a post office to process the claims of the petitioner. It is no doubt true that the UNCC was not directly receiving the claims but the claims had to be forwarded through the government. It is this process which was followed. The question, however, remains as to whether this can be said to be an infraction of a guaranteed constitutional right which would result in the respondents being made liable for not forwarding the claim of the petitioner since undoubtedly the claim was not to be paid by the respondents.
23. The judgments cited by the petitioner are all relating to violation of the rights under Article 21 of the Constitution of India. The violation of such rights may be in the nature of custodial death, or damage to the life and liberty of a person on the failure of the State to take adequate precautions. It has also arisen in respect of such loss of life of school students where the school was a defaulting party. There is, however, no such case of loss of life or limb in the present case. The claim of the petitioner which has not been paid is on account of loss of property, personal items and loss of income during that time. The petitioner had to leave Kuwait. The petitioner for better prospects went to Kuwait. The situation which developed as a result of the invasion by the Iraqi forces compelled the petitioner to leave Kuwait and the petitioner suffered losses. It is only the UNCC which had to make the payment of the claim of the petitioner. The respondents were only a processing agency. The conduct of the petitioner in following up the claim and as to what action was taken would thus be material in determining the liability, if any, of the respondents. Article 226 of the Constitution of India cannot be the panacea for all ills. In appropriate cases, compensation has been granted but it is not every infraction of any right which can result in such compensation being determined in writ proceedings. I am also unable to accept the plea of the petitioner that no proof of damages is required and the mere failure of the respondents to forward the claim to UNCC would imply that the respondent is liable for the full amount of the claim.
24. The respondent also produced a booklet stated to be of the Special Kuwait Cell which is a question and answer on compensation claims for victims of Gulf war. One of the questions related to the non-receipt of acknowledgment card and the answer provided is that for claims lodged with the Special Kuwait Cell in the appropriate format during July 1992 to January, 1993, the acknowledgment cards had already been issued by the said Cell.
25. In my considered view, the nature of the claim of the petitioner, the question of the liability of the respondents, the actions and omissions of the petitioner, if any, can only be brought out in appropriate civil proceedings where the claim would be adjudicated on evidence being led by the parties.
26. I am thus of the considered view that the present petition cannot be entertained under Article 226 of the Constitution of India and the petitioner has to take recourse to appropriate civil remedy for redressal of his grievances.
27. The writ petition is accordingly dismissed with liberty to the petitioner to file a civil suit. Parties are left to bear their own costs.