KRISHNA ENTERPRISES Vs. ORIENTAL ASSURANCE CO. LTD.

JUDGEMENT

(1.) LEARNED Counsel for the respondents has raised a preliminary objection to the effect that the disputed questions of fact with regard to the claim pertaining to insurance cannot be gone into in this writ petition. Is this objection to stand in the way of the petitioner as the "Great wall of China" which is impregnable and cannot be bypassed even by Article 226 of the Constitution of India.

(2.) THERE would have been merit in this contention of the learned Counsel for the respondents had some disputed facts were required to be gone into. In this petition this is not the situation. The facts are not in dispute. The petitioner wants an inference to be drawn on the basis undisputed facts. The position of law with regard to interference in the writ jurisdictions be noticed.

(3.) IN Rudul Singh v. State of Bihar , it was observed that 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 State as a shield. It was observed that the State must repair the damage done by its officers. Following the above decision, a Division Bench of Madras High Court speaking through Ratnavel Pandian, J., Officiating Chief Justice (later Judge of the Supreme Court of India) in Lalitha v. The Director General of Police, Madras and Ors. 1989 Crl.L.J. 1732, the State was directed to pay compensation to the extent ofRs. 50,000/- in a writ of habeas corpus. The Supreme Court of India in Nilabati Behera (Smt. Alias Lalita v. State of Orissa and Ors. dealt with power of the Court to grant compensation Under Article 226 of the Constitution of India. Lord Diplock's majority opinion in Maharaj v. Attorney-General of Trinidad and Lodago (No. 2), 1978 (2) All ER 670 was quoted in Nilabati Behara's (supra). This be noticed. It was argued on behalf of the Attorney General that Section 6(2) does not permit of an order for monetary compensation despite the fact that this kind of redress was ordered in Jaundoo v. Attorney General of Guyana 1971 AC 972. Reliance was placed on the reference in the Sub-section to enforcing, or securing the enforcement of, any of the provisions of the said foregoing sections as the purpose for which orders etc. could be made. An order for payment of compensation, it was submitted, did not amount to the enforcement of the rights that had been contravened. In Their Lordship's view an order for payment of compensation when a right protected under Section 1 "has been" contravened in clearly a form redress' which a person is entitled to claim under Section 6(1) and may well be the only practicable form of redress as by now it is in the instant case. The jurisdiction 6(2) viz., jurisdiction to hear and determine any application made by any person in pursuance of Sub-section (1) of this section. The very wide powers to make orders, issue writs and give directions are ancillary to this. After noticing the above question J.S. Verma, J. speaking on his behalf and on behalf of N. Venkatachala, J. said: It may be mentioned straightaway that award of compensation in a proceeding Under Article 32 by this Court or by the High Court under Article 226 of the Constitution 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, even though it may be available as a defence in private law in an action based on tort.