NOOR MAHMMAD USMANBHAI MANSURI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner, a brutally attacked and injured person in communal riot immediately after demolition of Babri Masjid has raised hue and cry for justice as his right of protection against any kind of violence or threat to his life is said to have been violated and he has been denied the right to life guaranteed by Article 21 of the Constitution of India.

(2.) This petition under Article 226 of the Constitution of India is filed by a communal riot affected victim belonging to minority community for implementation of the fundamental right of being protected or given shelter by the State Government and for calling upon the State Government to comply with the promise held out by it by declaration made by Hon'ble the then Chief Minister and in case of failure, to direct the respondent to pay the amount of compensation with interest by applying the doctrine of promissory estoppel and also because of the failure of the State Government in duly protecting and providing shelter to the persons belonging to minority community, namely, Muslims during communal frenzy or riots immediately after the demolition of Babri Masjid at Ayodhya. The petitioner admittedly belongs to minority community, i.e. he is a Mohammedan by caste and is admittedly residing at village Sarkhej, District Ahmedabad, a place which was riot torn and was grossly affected by communal riots during the period of demolition of Babri Masjid and immediately thereafter. The petitioner being a Muslim by caste, he is religiously bound to perform 5 Namaz every day and accordingly on 8th of December 1992 around 11.00 a.m. immediately after offering Namaz he was returning from Ganchivas Mosque at Sarkhej. Immediately when he came out from Mosque and was returning to his home, an irate mob duly armed with swords, sticks and pipes, admittedly belonging to the majority community of Hindus, rushed towards the petitioner. The petitioner, unfortunately, could not realise the immediate attack by this mob and within no time he received a blow of sword on his forehead which was skull- dip and number of blows were given to him by iron pipes and also blows of sticks fell on his head. It is his case that he fell down bleeding profusely and became unconscious within no time and when he recovered senses, he was admitted to the hospital and came to know from his relative that he was mercilessly attacked and beaten by the mob. In fact, the petitioner was removed to the hospital and was admitted in the V. S. Hospital and he received treatment for grievous hurts caused to him which were in the nature of multiple injuries over the face and scalp, right frontal, over parieto occipital region, on the eye lid and stretching upto the root of nose on the right side of the cheek. He remained as an indoor patient in the V. S. Hospital and was given treatment and injury certificate dated 18th December 1992 showing the nature of injuries received by him was issued. In fact, 60 stitches were taken to heal the wound and he was even supplied blood and was put to intraveins glucose from 8th December 1992 to 18th December 1992. While he was in the V. S. Hospital the District Collector, through the third respondent issued a cheque of Rs. 1,000/- to the petitioner in the hospital stating to be partial relief which was being granted to him by the State for immediate relief to him. It is the case of the petitioner that at that time the respondent announced their policy decision or made it known to the public at large that those who were succumbed to injuries in the riot immediately followed by demolition of Babri Masjid at Ayodhya would be paid Rs. 2 lacs and persons who have suffered serious injuries would be paid Rs. 50,000/-. Those who had died on receipt of multiple injuries during such communal riots, received the amount of Rs. 50,000/- as cash assistance from the State Government to the members of the family and those persons who received vital or serious injuries and were hospitalised, were covered by the declaration or announcement made by the State Government which was published on the next day in the newspaper as well as telecast on the television. The petitioner has 10 produced a copy of the extract of the news items published in the local newspapers and has relied upon his right of protection or obligation of the State to provide protection and shelter against breach of law and order is situation to all citizens and has very vehemently contended before the Court that he has not only been denied the right of protection and/or shelter against the situation arising from breach of law and order and 20 the State has failed even to fulfil this promise which was held out by the State Government immediately after riot. It is his case that it is the right to every citizen of this country of being protected or provided 25 shelter against the situation arising from breach of law and order and/or group of persons becoming irate in the communal franzy adversely affecting the persons of other community. It is in this situation that all individuals have fundamental right under Article 21 of the Constitution of India of being provided protection and/or shelter against situation arising from breach of law and order or situation where communal frenzy has run riot and members belonging to one caste had by taking law in their hands, mercilessly beaten and done to death innocent persons belonging to another caste, i.e. minority caste and/or majority caste. It is in such situation that right to protection or shelter exists in favour of every individual of the country, their right being part and parcel of right to life guaranteed by Article 21 of the Constitution of India. It is submitted by the petitioner that respondents have failed to fulfil the State obligation towards the person belonging to minority community and had also failed to provide protection to the persons of minor- ity community in the town which is otherwise known to be a problematic town, where communal riots break out between persons belonging to two communal groups very often. It is his case that if promise is held out or declaration is made by the State to provide cash assistance to the riot affected persons so that they have some redress, the State should be called upon to fulfil its promise exactly as per the policy or even otherwise by upholding the fundamental right of the person belonging to a minority community to get protection and shelter against the other community and in case of failure of the State, to provide adequate and reasonable compensation to the person adversely affected. The claim of the petitioner is thus based on the doctrine of promissory estoppel as the respondents have by their declaration held out promise to the persons adversely and prejudicially affected by communal riots and when such statement and/or promise held out by the State Government is not fulfilled, the petitioner has invoked the doctrine of promissory estoppel calling upon the State to fulfil its obligation or to act consistent with the declaration made and promise held out to the persons adversely affected in the communal riots which immediately followed the demolition of Babri Masjid at Ayodhya. It is his case that consistent with the promise, he has been provided medical support and help and was even admitted to V S Hospital for a period of over 10 days and was given treatment. The cash assistance which was required to be given to him pursuant to promise held out by the State Government is not paid to him and he was only paid cheque of Rs. 1,000/- by District Collector based on subsequent internal policy decision taken by the State Officials. The State Government has not published such subsequent declaration and unilaterally changed all its policy and has thereby sought to deny to the persons adversely affected by the communal riots at least the cash assistance to which they were entitled under the promise held out to them by the State Government. But, for such declaration, which was a constitutional promise held out to all riot affected victims as well as to the riot affected injured persons, State ought to have complied with its declaration and ought to have provided cash assistance of Rs. 50,000/- to the petitioner, as he was grievously injured and was hospitalised for over a period of 10 days and has by way of direct and immediate result of the blow of sword given to him by irate mob of Hindus, loss the vision of his right eye and that he was entitled to recover damages of higher amount from the State Government, he had no finance or ability to make such claim and restricts his claim only to the amount of Rs. 50,000/- with interest which the State Government ought to have paid to the petitioner without any delay.

(3.) The fact that the irate and highly communal mob of Hindus and/or persons belonging to other caste mercilessly attacked the persons coming out of the aforesaid mosque at Sarkhej is not at all disputed. In the affidavit-in-reply, an unfortunate attempt is made by the District Development Officer, Ahmedabad even to deny' that the petitioner received injuries at the riot which took place at Sarkhej immediately after the demolition of Babri Masjid. The District Development Officer however cannot run away from the Government Resolution pursuant to which declaration was made to provide cash assistance to the persons adversely and immediately affected by injuries received by them during communal riots. However, the State Government has after making declaration which was in the nature of promise held out to the riot affected persons, from time to time amended its promise by internal decisions in the nature of government resolutions which are admittedly amended from time to time and according to which amount of ex gratia relief to the families/persons affected by the communal riots is determined. According to the District Development Officer under the aforesaid resolution which is amended from time to time, persons who suffered temporary incapacitation were to be provided the cash amount of Rs. 1,000/- to Rs. 5,000/- depending upon the nature of injuries suffered by the persons and State Government has sought reliance upon such Government Resolution amended from time to time, and the said resolution of 18th December 1996 is produced and much reliance is placed upon such resolution. Though, the District Development Officer has to admit that the petitioner was injured on 8th December 1992 at Sarkhej and that he was admitted to the hospital from 8th December, 1992 he was denying the incident because the incident narrated by the petitioner has not occurred according to Police Officer of Sarkhej, whose affidavit is said to have been filed, but in fact, not filed in this Court along with the affidavit-in-reply of the District Development Officer. The learned Assistant Government Pleader has also found that no affidavit is filed by the Police Officer and no such affidavit is produced before this court. It is his case that the petitioner was disbursed the cash payment of Rs. 1,000/- as he was adversely affected during the riots but no further cash assistance was given to him nor he was entitled to any such cash assistance as per the government resolution which was subsequently amended to the prejudice of the persons to whom the promise was held out and when such promise is not fulfilled, the petitioner has based his claim upon the doctrine of promissory estoppel and has sought the relief that he was entitled at least to the amount of Rs. 50,000/- as per the declaration and that he was simply paid Rs. l,000/. The petitioner has also relied upon the case paper or report given to him by Sheth Vadilal Sarabhai General Hospital dated 18-12-1992 at the time of his discharge in which the multiple injuries caused to him are mentioned and they read as under: