STATE OF J&K Vs. SYED MOHAMMAD YOUSUF RIZVI

JUDGEMENT

(1.) The instant appeal under Clause 12 of the Letters Patent is directed against judgment and order dated 31.01.2012 rendered by learned Single Judge of this Court, holding the appellants liable to pay compensation to the writ petitioner-respondents on account of occupying their houses by Border Security Force (B.S.F.) and Central Reserve Police Force (C.R.P.F), which were later demolished to prevent their use by militants for subversive activities and launching attacks on nearby Special Operation Group (SOG) Camp of the Police. After the houses were vacated the writ petitioner-respondents were not in a position to move in on account of the security scenario. Moreover the militants and anti national elements in the area were so strong that they occupied the houses and used them for their hide outs to attack the nearby SOG camp, therefore, no fault could be found with the writ petitioner-respondents for not having moved therein after the security forces vacated the houses. Accordingly the appellants were held liable to pay compensation and the amount has been determined on the basis of valuation furnished by the Assistant Executive Engineer (R&B) Sub Division Beeru and the Executive Engineer, Muffasil (R&B) Division Budgam. They have concluded the value of the houses at Rs. 2,77,891/- and 2,79,112/- respectively. Accordingly the writ petitioner-respondents were awarded a sum of Rs. 4,40,055/- as compensation on account of demolition of their houses by the Security Forces with interest @ 9% per annum from the date of demolition till realization. We have heard the learned counsel for the parties and are of the view that this appeal is liable to be dismissed.

(2.) The only ground pressed for reversing the view taken by the learned Single Judge is that the two houses belonging to the writ petitioner-respondents were not demolished deliberately. The demolition followed to avoid the use of these houses by the militants to attack the nearby SOG camp and the subversive activities. According to Mr. Khan, learned counsel for the appellants, the basic object was to curb the sinister activities of terrorist groups and to ensure that the security of the State and integrity of the country is protected.

(3.) Having heard the learned counsel for the parties we are of the considered view that this appeal does not merit admission. At one time a Constitution Bench of Hon'ble the Supreme Court in Kasturi lal Ralia Ram jain v. State of U.P., 1965 AIR(SC) 1039had taken the view that if a tortious act has been committed by a public servant in discharge of his statutory functions which are referable to, and ultimately based on the delegation of sovereign power of the State to such public servant, then no claim for damages or compensation would be maintainable. If such a tortuous act has been committed by a public servant in discharge of duties assigned to him not by virtue of delegation of sovereign power an action for damages would lie. The Constitution Bench had ruled that commission of tortious act by a public servant in discharge of delegated sovereign functions would not lead to filing a claim for damages/compensation. In Kasturi Lal's case the facts were that the firm was engaged in the business of jewellery and other goods at Amritsar. One of its partner arrived at Meerut to sell gold and silver in the market there. However, he was taken into custody by three police constables. On search gold and silver was seized from him and he was kept in police custody. He was later released by the police and only silver seized from him was returned to him. Thereafter the firm made repeated demands for returning the gold also which had been seized from its partner but the same could not be given back because the Head Constable had escaped with the gold to Pakistan. Accepting the defence of the State that the officer was discharging sovereign functions delegated to him by the State, the claim of the firm for compensation equal to the value of the gold was rejected by the Court. However, in last but one para the Constitution Bench entered a piece of advice by observing that the Legislatures in India ought to consider passing of legislative enactments to regulate and control their claim for immunity in such like cases as was already done by the Parliament in England by passing Crown Proceedings Act, 1947. Although no steps have been taken by the Legislature but the aforesaid judgment has been completely watered down as is evident from a bare perusal of the judgment in the case of N. Nagendra Rao & Co. v. State of A.P., 1994 6 SCC 205. Following pertinent observations have been made by their Lordships after dealing with the entire case law.