ORDER
K.K. Usha, J.
1. Petitioner is the proprietor of a vegetarian hotel by name 'New Ananda Bhavan' at Kalvathy Road, Fort Cochin. It is alleged that he had been running the said hotel for about last more than 20 years. Petitioner claims that his hotel is reputed as a good vegetarian hotel catering to the needs of people belonging to all walks of life, particularly to those in the middle class and employees working in Fort Cochin area. On account of the goodwill that could be acquired by him during the last about 20 years, his business had been prospering. Petitioner contends that he suffered substantial loss on account of the mob attack on his hotel and the looting which took place on 16-10-1990 which could have been prevented if appropriate and timely action had been taken by the respondents. He, therefore, seeks a writ of mandamus directing the respondents to compensate the petitioner to the extent of Rs. 86,000/- for the wanton destruction of property and loss of business of the petitioner caused on account of failure of duty and negligence on the part of the respondents. He also seeks a direction to the respondents toafford him a similar treatment as in the case of other persons who were affected by riots in Mattancherry and Palghat.
2. The facts as alleged by the petitioner in the original petition are as follows: On the murder of a priest of the mosque at Kattoor, there arose communal disturbance in certain parts of Kerala which led even to riot in some places. The ripples of such disturbance were felt in Fort Cochin/ Mattancherry area of the city of Cochin also. Respondents 2 to 4 who were in-charge of law and order in the district were aware of the fact that trouble would erupt in Mattancherry/ Fort Cochin area on a large scale if necessary precautions were not taken in time. On 16th October, 1990, there was a 'harthal in Mattancherry/ Fort Cochin area to protest against the murder of the priest. A conference of top officers of Government and others were convened by the 4th respondent at his office at Fort Cochin on the previous day of the 'harthal' in order to chalk out preventive steps to be taken and also to decide about the measures to be adopted to give sufficient protection to the life and property of the citizens in case of breach of peace. Even though petitioner also came to know about the meeting and proposed programme chalked out by the officers by way of abundant caution, petitioner decided not to open his hotel on that day. But, by about 11.30 in the morning of 16-10-1990, about 100 persons armed with deadly weapons and instruments, attacked petitioner's business premises, broke open the hotel, caused severe damage to the doors and windows and entered the hotel. Petitioner is staying at Thripunithura, about 18 kms. from the place where the hotel is situate. But, some of his workers were inside the hotel. They were threatened by the mob and were forced to run away from the premises. Thereafter, the mob destroyed valuable items of properties inside the hotel including a refrigerator, stabilizer, tables, chairs, cash counters, mirrors, telephone, doors, windows, emergency lights, tiles, hotel name-boards and other articles. They ransacked the store and took away rice, sugar etc., kept in bags and all other consumable goods like fruits, vegetables, coconuts etc. They also removed costly brassutensils, steel utensils, furniture, currency notes to the extent of Rs. 15,000/-, and coins worth about Rs. 2,000/-. Bank pass books, cheque books, kerosene permits, bills, seals, account books etc., were also destroyed. Petitioner estimates the total cost of the articles and goods thus destroyed and taken away at Rs. 74,000/-.
3. Since there was no transport facility on the day of 'harthal', it was not possible for the petitioner to travel from his home to the place of business. When the looting was going on, one of the employees of the petitioner reported to the Fort Cochin Police Station and requested them to render immediate help to prevent the loss and destruction. But, unfortunately, police did not take any action on his request. When the petitioner received telephonic message from one of his employees from Fort Cochin about the destruction that was being caused to his business premises, he also immediately contacted Fort Cochin Police Station, Assistant Commissioner of Police, Police Control Room and the Inspector of Police and requested them to render necessary help to save his business premises and the properties therein. But, unfortunately, the police did not react to his desperate call for help. Though the respondents were aware of the possibility of such riots in Fort Cochin/ Mattancherry area and though they had taken a decision to render necessary steps to give protection to the life and property of the citizens at the meeting held on 15th October, respondents miserably failed to discharge their duty and render protection to the petitioner's business premises. Petitioner submits that apart from the loss which he suffered on that day due to destruction of his assets, he could not re-open the hotel and conduct business for about two months. He had thus lost a minimum of Rs. 5,000/- during this period on account of loss of business. Apart from the above, since all his account books were destroyed, he could not collect from his regular customers, balance amount due from them. On this count, he had suffered a loss of Rs. 7,000/-. Thus, according to the petitioner, he had suffered a total amount of Rs. 86,000/- as a result of the failure on the part of therespondents to discharge their duty to give protection to the property of the petitioner.
4. Immediately after the incident, petitioner made complaints before the respondents and requested for adequate compensation. Ext.Pl is a petition dt. 19-10-1990 submitted before the 4th respondent. He sent a petition to the Finance Minister on 5-11-1990, copy of which is produced as Ext.P2. This was followed by another representation, Ext.P3 dt. 10-1-1991 to the Chief Minister and ultimately he sent a lawyer's notice, Ext.P4 dt. 12-4-1991 to the Chief Secretary and respondents 2 to 4. He did not receive any reply to any of the representations or petitions. But, at the same time, he came to know that persons who had suffered loss on account of the looting by anti-social elements on 16-10-1990 in Mattancherry/Fort Cochin area had been rendered financial help and compensation. Petitioner refers to a report in Mathrubhoomi daily dt, 6th March, 1991 in support of his above contention. Ext.PS is the report which says that an amount of Rs. 17,625/- has been sanctioned to 13 bunk owners who had suffered loss during the calamity in Mattancherry. This amount represents 15% of the loss claimed by the bunk owners. But, as far as the petitioner is concerned, he was not favoured even with a reply. Petitioner submits that it is not possible for him to resort to a civil suit Since the loss was sustained at the hands of a mob and the principles of law of evidence which had to be followed in a civil suit will stand against the petitioner getting any relief in such proceeding. It is under these circumstances, petitioner has approached this Court under Article 226 of the Constitution.
5. Petitioner has produced along with the original petition, certain affidavits and certificates sworn to and issued by responsible ' persons to support his case regarding the loss sustained by him at the hands of the mob on 16-10-1990. Ext.P6 is a certificate issued by Sri K. J. Sohan who was the then Mayor of the Corporation of Cochin and who had occasion to visit petitioner's premises on 18-10-1990 and see for himself the destruction caused to the business premises of thepetitioner. In Ext.P6 certificate, it is stated that furniture, fittings, refrigerator, utensils etc., of the hotel were found totally destroyed and they were strewn on the road and it is clear that the petitioner had suffered considerable loss on account of the riot which happened on 16-10-1990. Ext.P7 is an affidavit sworn to by the Chief Reporter of Indian Express, Ernakulam Edition. He stress that while he was covering riot-stricken areas of Mattancherry/Fort Cochin, he visited the hotel premises of the petitioner on 18-10-1991. He found the furniture and other items of properties inside the hotel lying shattered in a totally damaged condition. He estimated the loss sustained by the petitioner between Rs. 75,000/- and 1 lakh. Sri K. P. Varghese who was the Asstt. Commandant, District Administration and personal officer for District Commander as Headquarters Coast Guard Dist. No. 4, Cochin had also visited petitioner's premises and Ext.P8 is the affidavit sworn to by him. He says, that he could make out that there were pieces of wooden almirah, wooden tables, benches, doors, windows, electrical junction boxes, fan, light shades, bulbs and tubes, hundreds of soda and cool drink bottles, books, files, steel glasses, brass pots and even telephone instruments were disconnected and thrown away. A big refrigerator was found on the road in completely damaged state. Wooden cash counter, chairs, mirrors, gas cylender and many such items were lying on the road shattered into pieces. He estimated the loss sustained by the petitioner to Rs. 70,000/-. Ext.P9 is an affidavit sworn to by Sri R. Prakash, a businessman and social worker of Mattancherry. He estimated the loss of the petitioner between Rs. 75,000/- and Rs. I lakh. According to him, the officials who participated in the meeting held on 15th October had assured that police would be deployed in all important places and sensitive areas where there was any likelihood of breach of peace. But the promise was not carried out and the police machinery did not take any steps to prevent the riot which was expected by the authorities even on 15th October. Sri P. K. Mohammed Ali, a social worker and who is working as a Supervisor ofTransporting of Cargo and residing near petitioner's hotel, has sworn to the fact that at the meeting held on 18-10-1990 in the residence of R.D.O. to create peaceful atmosphere in the area affected by riots, there was severe criticism on the police and there was a general conclusion that it was on account of the negligence and inaction of the police force, the violence had taken place. Ext.P 10 is copy of the affidavit. Sri S. Krishnaswamy, owner of a dairy and who is supplying milk to various hotels of Mattancherry and Fort Cochin, is an eye-witness to the looting that had taken place in petitioner's premises on 16-10-1990 by the unruly mob. Ext.Pl I is the affidavit sworn to by him. He states that he had sent one of the employees of the petitioner to the police station situated about 1 furlong away from the hotel, but police had expressed their inability to come to the place of destruction. According to him, if the police had immediately reacted to the request and came to the hotel premises, looting and destruction of petitioner's property could have been averted. Ext.P12 is a report which had come in Indian Express daily on 27th October, 1991. According to the report, Government itself had estimated that 74 shops were partially gutted or looted during the five days of vandalism. Government had estimated the total loss around Rs. 75 lakhs while a survey conducted by Indian Chamber of Commerce and Industry had put the loss above Rs. 1 crore. Most of the shop owners had no insurance for their shops. Several Ministers and political leaders came to Mattancherry to assuage the feelings of riot-hit people and promised to use their good offices to secure compensation for the traders. Even late Rajiv Gandhi when he was the opposition leaders, made a visit to Mattancherry during a tour to Kerala and promised to compensate the riot victims. But the promises remain without being implemented. This, in effect, is the contents of the report.
6. Petitioner further submits that during second week of December, 1991, there were some riots in Palghat in which number of people suffered loss on account of the looting and violence. It had been reported in Mathrubhumi daily dt. 19th December, 1991that the Government proposes to appoint a member of the Board of Revenue to assess the loss suffered by the persons at Palghat for the purpose of awarding compensation.
7. It is contended by the petitioner that the executive wing of the State has a duty to protect the person and properties of the citizens. Conduct of the police in refusing to grant protection to him and his business premises in spite of its knowledge that an attack is likely to happen against the hotel of the petitioner on 16-10-1990 would amount to infringement of petitioner's fundamental rights under Article 19(1)(g) of the Constitution. State is liable to compensate the petitioner as it has failed in its public duty to protect the fundamental right of the petitioner. It is also contended that petitioner has been discriminated in the matter of granting compensation as in the case of certain other traders such compensation was granted. In support of the above contention, petitioner relies on the decisions of the Supreme Court in Rudul Sah v. State of Bihar, (1983) 4 SCC 141 : (AIR 1983 SC 1086); Bhim Singh, MLA v. State of J&K;, AIR 1986 SC 494; Peoples' Union for Democratic Rights v. State of Bihar, AIR1987 SC 355; State of Maharashtra v. Ravikant S. Patil, (1991) 2 SCC 373 : (1991 AIR SCW 871); Nilabati Behera (Smt.) alias Lalita Behera v. State of Orissa, (1993) 2 SCC 746 : (AIR 1993 SC I960); Kumari (Smt.) v. State of Tamil Nadu, (1992) 2 SCC 223 : (AIR 1992 SC 2069); Lucknow Development Authority v. M. K. Gupta, (1994) 1 SCC 243 : (AIR 1994 SC 787); Jaram Singh v. State of H.P., AIR1988 Him Pra 13 and Antony Cherian v. Union of India, (1992) 1 Ker LT 73.
8. A counter-affidavit has been filed on behalf of the 1st respondent wherein the incident which happened, as alleged by the petitioner, on 16-10-1990 is admitted. It is also admitted that when 'harthal' on 16-10-1990 was announced as a protest against the murder of a Muslim Madarssa Teacher at Kattoor on 14-10-1990, law and order problem was anticipated. It is further stated that in order to handle such a situation, the entire police force within Mattancherry Sub-Division was mobilised and mobile patrol andpolice pickets were arranged at sensitive areas with the assistance of additional armed police. As a precautionary measure, a prohibitory order under Section 144, Cr.P.C. was issued by the 2nd respondent-District Collector. It is admitted in the counter-affidavit that the 'harthal' was followed by large scale violence and groups of people indulged in arson, looting and even murder. The entire Ernakulam district was a disturbed area on 16-10-1990. Mattancherry and Fort Cochin were the worst affected places. It is further admitted that police were unable to bring the situation under control and the police had to resort to firing at New Road, Mattancherry at 12.12 p.m., Bazar Road at 2.15 p.m. and at Panayappilly at 8.45 p.m. on 16-10-1990. According to the deponent, in such widespread act of violence and looting, it was practically impossible to render police protection to each and every shop in the area.
9. The allegation that there was inaction on the part of the police is denied. The fact that petitioner's hotel was looted and destroyed by a mob at about 11 O'clock in the F.N. of 16-10-1990 is admitted in the counter-affidavit. But the averment in the original petition that on getting information from his employee about the attack on his hotel, petitioner had contacted immediately the Fort Cochin Police Station, Asstt. Commissioner of Police, Police Control Room and Inspector of Police and requested their help to save his business premises, is denied. The allegation that the police was insensitive to the wanton destruction and that loss was occurred due to the failure of the respondent to take action, is also denied. Attack on petitioner's shop was reported only after the incident was over. No complaint was received prior to the attack. The fact that there was a conference called by the Revenue Divisional Officer, Fort Cochin, on 15-10-1990 is admitted; but, according to the deponent, all the decisions taken at the conference were implemented and utmost vigil was maintained.
10. It is contended by the learned Govt. Pleader appearing on behalf of the respondents that the petitioner is not entitled to claim any compensation as per law. Theattempt of the petitioner is to saddle the responsibility of, loss with the Government and to claim compensation. Petitioner has no legal right to claim such compensation. Apart from the above, as per the assessment made by the respondents, petitioner's loss is only to the extent of Rs.35,000/- and not to the extent of Rs. 86,000/- as claimed by him. It is further contended that so long as the petitioner has no legal right to claim compensation, he cannot have a complaint of violation of his fundamental right under Article 14 of the Constitution on the ground that while he was denied compensation, 13 petty shop, owners who had sustained loss during the very same riot were granted compensation. Such compensation was given to petty traders from Chief Minister's distress relief fund. Their income came within the limit stipulated under Chief Minister's Distress Relief Fund Rules. Petitioner will not come within the rules as his income would come under higher range. According to the respondent, the statements contained in the affidavits filed along with the original petition are not reliable and no relief can be granted to the petitioner on the basis of such affidavits. Anti-social elements made use of the opportunity available on the 'harthal' day and looted shops and damaged many of them. Petitioner's hotel is one among those which sustained damage. 1st respondent would aver that it is practically impossible to give police protection to each and every shop when riot was going on within the entire area of Mattancherry and Fort Cochin Police Station limits at the same time. Earnest attempts had been made by the police at the risk of their lives. Therefore, according to the respondents, petitioner is not entitled to the reliefs sought in this original petition.
11. From the pleadings in this case and the arguments addressed before this Court, it has come out that on 16-10-1990, petitioner's hotel at Fort Cochin was looted by a mob and it suffered substantial damage at the hands of the mob. It is also an admitted fact that no police help was received by the petitioner to save his business premises from wanton destruction by the mob. According to the petitioner, by about 11.30, his employee approached the police for help, which wasfollowed by a request from the petitioner himself over telephone. But, not even an attempt was made by the police to save his hotel from the mob. In support of his contention that timely information was given to the police about the mob attack on his hotel, he has produced an affidavit sworn to by Sri Krishna Swamy, who is running a dairy at Koovappadam, Cochin and who had been supplying milk to various shops including that of the petitioner. He had stated that by about 11.30 a.m., he saw large number of people collected inside and outside petitioner's hotel and causing damage to the hotel and articles inside it. He immediately asked Sudarsanan, one of the employees of the petitioner, to report to the police station which is situate about 1 furlong away from the hotel. Sudarsanan took his cycle and went immediately to the police station and reported. Within 15 minutes, he came back and told the deponent that the police asked him to go away and that it was not possible for them to render any help. He remained near the premises for about one hour and witnessed the mob looting the hotel and leaving behind only broken pieces of furniture and other articles. During the entire period of one hour, while he was waiting there, no policeman came to the premises. As mentioned earlier, respondents denied getting any such specific information about the damage caused to the petitioner's hotel at the time when the looting was going on.
12. I find no reason to disbelieve the petitioner or the deponent of the affidavit produced as Ext.P11, on the aspect that immediate information was passed on to the police about the mob attack on petitioner's hotel. Even if such information was not received at the time of actual incident, I am of the view that there had been laches on the part of the police in giving protection to the property of the petitioner. Admittedly, respondents were expecting trouble on 16-10-1990 in Mattancherry and Fort Cochin area. It was for this reason, a meeting was convened at the place of the 4th respondent on 15-10-1990 and decisions were taken as to the measures to be adopted to avert any law and order situation. The fact that such a meetingwas convened for such purpose is not denied by the respondents. Ext.P9 is an affidavit sworn to by R. Prakash, a permanent resident of Mattancherry and a businessman having his own printing press. He is also a voluntary social worker. He had attended the meeting held on 15-10-1990 as per invitation. He states that apart from the 4th respondent-Revenue Divisional Officer, Asstt. Commissioner of Police and Divisional Inspector of Police (Circle Inspector) were also present. During the meeting, certain decisions were taken in order to deploy police force at certain sensitive areas where there is a possibility of violence. He further states that even while the meeting was in session, reports were received about violence and destruction at Kappalandimukku where a shop was ransacked by some unruly elements. This was a warning to the police force that extreme attention had to be paid the next day to prevent any breach of peace in the sensitive area. The deponent further states that in spite of such decision, police and official machinery did not take any step to deploy police force to the sensitive areas clearly specified. In the absence of police in the scene, riots started at 8 O'clock in the morning in various places at Mattancherry and Fort Cochin. It spread at other areas including Kalvathy where petitioner's hotel was situated.
13. Ext. P 10 is an affidavit sworn to by P.K. Mohammed AH who is also a resident of Kalvathy, Fort Cochin. He is a supervisor of transporting of cargo by boats and also engaged in social works. He speaks to the damage sustained by the petitioner's hotel at the hands of the mob. He further states that at the meeting held by the R.D.O. on 17-10-1990 at 4p.m. which was attended by about 100 people including the deponent, there was a vehement criticism from those assembled regarding the role of the police on 16-10-1990. Consensus was that the negligence and inaction on the part of the police force were the reason of the mob violence and the loss caused to petitioner's hotel.
14. Even going by the averments contained in the counter-affidavit filed by the 1st respondent, it is clear that no action was takenby the police in time to protect petitioner's hotel where looting operation went on for more than an hour. Only explanation given is that it was impossible to give such protection in the situation available at Fort Cochin and Mattancherry on 16-10-1990. Respondents cannot be heard to put forward their inability to give protection as an excuse in this case as they had sufficient warning about the violence which could happen on the 'harthal' day, namely, 16-10-1990. Taking into consideration the entire facts and circumstances of the case and the materials made available before this Court, I am inclined to take the view that respondents have failed in their duty to render protection to petitioner's hotel which is situate within one furlong from the police station. It cannot be believed that the police did not get information about the hour-long operation by the mob in petitioner's hotel. The inaction on their part has thus violated petitioner's fundamental rights to carry on the trade or business under Article 19(1)(g) of the Constitution of India.
15. It has been well settled that this Court can pass an order in exercise of its jurisdiction under Article 226 of the Constitution for payment of money if such an order is in the nature of compensation consequential upon the deprivation of fundamental right. The award of compensation in proceedings under Article 32 by the Supreme Court or under Article 226 by the High Court is a remedy available under public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. (Vide Nilabati Behera (Smt.) alias Lalita Behera v. State of Orissa, (1993) 2 SCC 746 : (AIR 1993 SC 1960). In the abovementioned decision, reference has been made to all the earlier decisions of the Supreme Court and it was held that the State's liability for contravention of fundamental rights the doctrine of sovereign immunity has no application in the constitutional scheme and is not defence to the constitutional remedy under Articles 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights when the only practicablemode of enforcement of fundamental rights can be the award of compensation.
16. In Lucknow Development Authority v. M. K. Gupta,(1994) 1 SCC 243: (AIR 1994 SC 787), Supreme Court considered the question of accountability of public authorities and it was observed as follows (at p. 795 of AIR):
'The administrative law of accountability of public authorities for their arbitrary and even ultra vires actions has taken many strides. It is now accepted both by this Court and English Courts that the State is liable to compensate for loss or injury suffered by a citizen due to arbitrary actions of its employees.'
In Rudul Sah v. State of Bihar, (1983) 4 SCC 141 :(AIR 1983 SC 1086), the Supreme Court held the State Government liable to pay compensation to the petitioner on the ground of violation of his fundamental right under Article 21 of the Constitution. This was so granted in spite of petitioner's right to file a suit to recover damages. In Kumari (Smt.) v. State of Tamil Nadu, (1992) 2 SCC 223 : (AIR 1992 SC 2069), Supreme Court allowed an appeal filed by a mother whose six years old son died as a result of falling in a ten feet deep sewerage tank and whose petition under Article 226 of the Constitution before the Madras High Court seeking payment of compensation by the State Government was dismissed. The writ petition was dismissed by the High Court on the ground that it was not possible to determine as to which of the respondents was negligent in keeping the sewerage tank uncovered. Supreme Court, while granting the appellant her prayer for compensation to the extent of Rs. 50,000/-with interest by the State of Tamil Nadu, further observed that it is open to the State Government to take appropriate proceedings to claim the said amount or part thereof from those who are responsible for keeping the sewerage tank open. This Court has taken a similar view in Antony Cherian v. Union of India, (1992) 1 Ker LT 73.
17. I have no doubt that it was the duty of the respondents to have taken necessary stepsto protect petitioner's business premises, especially in view of the fact that there was sufficient information available to them that there was likelihood of mob violence on 16-10-1990. Respondents 2 to 4 have failed to discharge the above duty.
18. Alberico Gentili, who was Professor of Civil Law in Oxford in 1587 and the author of Prima Connentatio De Jure Belli, which is a collection of his Oxford lectures published in the year 1588, has considered the question whether faults of individuals could be charged against a community. According to him, since the community 'can hold its citizens to their duty, and indeed is bound to hold them, it does wrong if it fails to do so'. The State has a clear duty to prevent wrongs of which it has notice and which it has the power to prevent: 'the State, which knows because it has been warned and which ought to prevent the misdeeds of its citizens, and through its jurisdiction can prevent them, will be at fault and guilty of a crime if it does not do so'. Hugo Grotius, the best known Renaissance writer on International Law (1583-1645) also took a similar view that 'Kings and public officials are liable for neglect if they do not employ the remedies which they can and ought to employ for the prevention of robbery and piracy'. ('Henry's Wars and Shakes-phere's Laws' by Theodor Moron, Chapter on Responsibility of Princes, pages 68 and 69).
19. The damage caused to petitioner's hotel and business could have been avoided if respondents 2 to 4 had taken adequate steps at appropriate time. Therefore, I find that the 1st respondent is liable to compensate the petitioner for violation of his fundamental right. The averments in the original petition and the counter-affidavit would show that State had, as a matter of fact, granted compensation to certain traders who suffered 'damage on 16-10-1990 as a result of the mob attack. 1 find no reason to deny the petitioner a similar treatment.
20. The only other question to be considered is what should be the amount of compensation. Petitioner has claimed an amount of Rs. 86,000/ - under different heads. He has produced affidavits, Exts.P7, P8 andP9 by Sri P. Venugopal, Chief Reporter of Indian Express, Sri K. P. Varghese, Asstt. Commandant, Headquarters Coast Guard Dist. No. 4 and Sri R. Prakash, a social worker to show that the loss sustained by him would come between an amount of Rs. 70,000/- and 1 lakh. Respondents themselves have made an assessment of the damage caused to the petitioner as a result of the incident on 16-10-90 as Rs.35,000/-. Petitioner had issued Ext.P4 lawyer's notice dt. 12-4-1991 seeking payment of compensation for which he had not received any reply. Taking into consideration alt the facts and circumstances of this case, I am of the view that interest of justice will be served if the 1st respondent is directed to pay an amount of Rs. 35,000/- as compensation to the petitioner. 1st respondent is therefore directed to pay an amount of Rs. 35,000/- to the petitioner within a period of one month with interest at the rate of 12% from 1-5-1991 till the date of payment. It is open for the 1st respondent to realise the amount from those officers who are responsible for the negligence. The original petition stands allowed as above.