HIRENDRA NATH GOHAIN Vs. UNION OF INDIA

JUDGEMENT

(1.) A difference of opinion between two members of the Division Bench which had earlier heard this writ petition; has necessitated the present reference.

(2.) The writ petitioner, an acclaimed Assamese author and receipient of the Sahitya Academy Award, had filed the present writ petition claiming compensation from the Union of India for loss of the manuscripts of two books conceptualized by the petitioner and some old rare book. The manuscripts and the books were couriered by the petitioner to an address in the United States of America through the international speed post, a facility provided by the Post and Telegraph Department of the Union of India. The said materials, according to the writ petitioner, were sent to the United States of America on the eve of his visit to that country. According to the petitioner, he had planned to finalize the manuscripts during his leisure time in the United States of America and to use the rare books as reference books for the work(s) to be produced by him. The articles sent, admittedly, have been lost in transit giving rise to the claim of compensation in the domain of public law.

(3.) On completion of hearing of the writ petition, the Hon'ble Chief Justice, who was a member of the Bench, has taken the view that the claim for compensation made by the writ petitioner should not be entertained in the domain of public law remedies. The Hon'ble Chief Justice has been of the view that the activity involved in the present case, in the course of which the loss had occurred, pertains to the realm of commercial transactions undertaken by the Union and the petitioner had entered into the contract on his own volition preferring to avail of the services provided by the Union of India rather than the services provided by the private couriers who are engaged in similar business. The Hon'ble Chief Justice has also taken the view that Article 19 of the Constitution declares that the freedoms enumerated therein including the freedom of speech and expression are available to all citizens without, however, specifying the obligations arising out of such declaration. It has also been recorded in the order passed by the Hon'ble Chief Justice that: