IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28/04/2006
CORAM
THE HON'BLE MR. JUSTICE K.MOHAN RAM
W.P. No.1602 of 1999
to
W.P. No.1604 of 1999
W.P.No.1602 of 1999
1. Lakshmana Naidu (deceased)
2. Varadammal
(Petitioner No.2 brought as
Legal representative
of the deceased Bale @ Subramanim
as per order of this
Court dt.27.4.2006) Petitioner
W.P.No.1603 of 1999
1. Angammal (deceased)
2. Chinnaponnu
3. Minor. Ayyammal (now attained majority)
4. Minor. Chinnamani
5. Villaiammal
(Petitioner Nos.2 to 5 are brought
as legal heirs of
the deceased Rajamanickam
as per order
of this Court dt 27.4.2006) ... Petitioner
W.P.No.1604 of 1999
1. Muthusamy (deceased)
2. Samboornam
(Petitioner No.2 brought as
Legal Representative of the
deceased petitioner, Muthusamy,
as per order
of this Court dated 27.4.2006) ... Petitioner
-Vs-
1. The State of Tamil Nadu
Rep. by the Secretary to Government
Department of Home Affairs,
Fort. St. George, Chennai - 600 009.
2. The Secretary to Government
Department of Forests,
Government of Tamilnadu
Fort. St. George,
Chennai - 600 009. Respondents in all
the above
Writ petitions.
Prayer : Petitions filed under Article 226 of the Constitution of
India Praying for the issuance of a writ of mandamus as stated therein.
For Petitioners : Mr. D.Bharatha Chakravarthy For Respondents : Mr. S.Gomathy Nayagam, S.G.P. :COMMON ORDER
In all the above three writ petitions, the legal heirs of the deceased
Bale @ Subramaniam (W.P. No.1602 of 1999), Jayaraman (W.P.No.1603 of 1999)
and Rajamanickam (W.P.No. 1604 of 1999) are the petitioners respectively and
they have prayed for the issuance of a writ of mandamus directing the
respondents to pay a sum of Rs.5 lakhs each as compensation for the loss and
suffering caused by the officials of the second respondent by the torture,
murder and burning of the said three deceased persons.
2. In all the three cases, the facts are one and the same. The
averments in the respective affidavits filed in the above writ petitions are
almost identical. The necessary facts for the disposal of the writ petitions
are set out below:
i) The petitioners in the above writ petitions are residents of
Thandanur Village, Attur Taluk, Salem district; forest areas surround the
village. It is the case of the petitioners that forest officials often
insisted Bale @ Subramaniam, Jayaraman and Rajamanickam to help them in their
illegal activities. But they refused to oblige and hence the forest officials
demanded money and threatened to implicate them in Sandal theft cases. While
so, on 29.10.1990, the above said three persons left their house stating that
they are going to Attur for purchasing cooking utensils; but they never
returned back. The petitioners, with the assistance of their family members
and relatives, met forest and police officials, but the whereabouts of the
said three persons were not known. After 10 days the petitioners found the
burnt remains of the said three persons. A criminal case was registered and
after investigation it was found that 12 forest officials of various
designation namely, (1) Nalandahkrishnamoorthy, (2) Lazar, (3) Palanivelu, (4)
Raju, (5) Kandasamy, (6) Mannar Mannan, (7) Krishnamoorthy, (8) Lakshmanan,
(9) Perumal, (10) Govindan, (11) Murugesan and (12) Chinnathambi, who were the
accused 1 to 12 in S.C.No.209 of 1994 on the file of the Principal Sessions
Court, Salem did the most heinous crime.
ii) It is the case of the petitioners that on completion of the
investigation and filing of charge sheets against the abovesaid accused
persons it came to the light that on 29.10.1990 at about 6.30 pm, Accused 1 to
4 mentioned above, took Bale @ Subramaniam, Jayaraman and Rajamanickam into
custody in the guise of interrogation regarding sandalwood case and took them
to Attur Range Forest Office. There, Accused 1 and 4 to 9 beat all the three
of them with lathies, sticks and hands and due to grievous injuries Bale @
Subramaniam succumbed to death.
iii) Thereafter, the said accused persons took the body of Bale @
Subramaniam in the Forest Department Jeep bearing registration No.TNT 8 997
into the Thakarai Reserve Forest situated within the jurisdiction of
Chinnasalem Police Station in South Arcot District and burnt him. Thereafter,
the above said accused officials and particularly Accused 3, 4, 6, 9 and 12 on
30.10.1990, took Rajamanickam and Jayaraman to the Sana Mavoo Reserve Forest
situated within the jurisdiction of Hosur Police Station in Dharmapuri
District by the Forest Department Jeep of Attur Range Forest Office.
Thereafter, on 31.10.1990 at about 2.30 am, in the “Pullu Plot” at the Sana
Mavoo Reserve Forest, the Accused 3, 4 and 6 held the hands of the
Rajamanickam and the Accused 12 caught hold of the legs and the Accused 6
strangulated him with his hands and also Accused 4 and 6 forcefully
administered poison mixed in brandy and murdered him and all of them burnt his
body. On the same day at 3.30 am, Jayaraman was taken by the accused to a
place called Pathakottai in the same Sana Mavoo Reserve Forest and there,
Accused 3 held his legs and Accused 4, 6 and 9 forcefully administered poison
mixed in brandy and murdered and burnt him.
iv) All the above said accused were tried in S.C.No.200 of 1994 by the
Learned Principal Sessions Judge, Salem and a judgment dated 06.09 .1995 was
rendered therein convicting Accused 1 to 4, 6 and 9 under various counts for
an offence under Section 302 IPC and were sentenced to life imprisonment.
3. In W.P.No.1602 of 1999, the petitioners are the father and mother
of the deceased Bale @ Subramaniam and according to the petitioners their son,
at the time of death, was aged about 25 years and was earning Rs.60/- per day
as an agricultural coolie. In W.P.No.1603 of 199 9, the petitioners are the
mother, two wives and two minor daughters of the deceased Rajamanickam and
according to the petitioners, at the time of death the deceased was aged about
31 years and was earning Rs.60/- per day as an agricultural coolie. In
W.P.No.1604 of 1999, the petitioners are the father and mother of the deceased
Jayaraman and according to the petitioners their son at the time of death was
aged about 27 years and was earning Rs.60/- per day as an agricultural coolie.
4. The common averments and allegations of the petitioners are that
the respective deceased persons were breadwinners of their respective families
and because of the brutal murder committed by the above said accused persons,
the petitioners underwent untold mental agony and suffering, extreme poverty
and hunger and they could not even see the faces of the deceased. The mental
agony suffered by the petitioners may not be described in words and the
petitioners, by the death of above said three persons, lost their respective
breadwinners of their families and they have been deprived of the support of
the deceased persons. The petitioners sent various representations to various
officials and finally sent a representation dated 15.09.1997 to the
respondents. As there was no positive response, the above writ petitions have
been filed claiming compensation for the death of the above said persons.
5. According to the petitioners, the respondents are strictly liable
to pay compensation for the acts done by the above said Accused persons, who
were officials of the Forest Department, as they have violated the fundamental
rights of the petitioners as well as the deceased persons.
6. In all the above writ petitions, a sum of Rs.5 lakhs each is
claimed as compensation. A counter affidavit has been filed by the first
respondent in W.P.No.1604 of 1999 adopting the counter affidavit filed by the
second respondent. The original copy of the counter affidavit filed by the
second respondent is not available in the Court bundle. However, a xerox copy
of the same was furnished by Mr.S.Gomathi Nayagam, Special Government Pleader.
No separate counter affidavit seems to have been filed in W.P.Nos.1602 and
1603 of 1999. In the counter affidavit filed in W.P.No.1604 of 1999, the
registration of the criminal case against the above said accused persons and
the judgment rendered in S.C.No.200 of 1994 by the Principal Sessions Judge,
Salem are not disputed but infact admitted. It is stated in the counter
affidavit that the Sessions Court, Salem by its judgment dated 06.09.1995
convicted accused 1 and 2 and sentenced them to undergo Rigorous Imprisonment
for two years, convicted accused 3, 4, 6 and 9 and sentenced them to undergo
Life Imprisonment and acquitted accused 5, 7, 8 , 10 and 12. It is further
stated in the counter affidavit that disciplinary proceedings under the Tamil
Nadu Civil Services (Discipline and Appeal) Rules were initiated by the
District Forest Officer against G.Nalandah Krishnamoorthy, Office Assistant
and S.Lazar, Forest Guard and an exparte order of removal of service was
passed against G. Nalandah Krishnamoorthy. But pursuant to the order passed
by the Tamil Nadu Administrative Tribunal, he was reinstated in service and as
far as S.Lazar was concerned, the Tamil Nadu Administrative Tribunal stayed
all further proceedings and he is in service. As per the averments in the
counter affidavit, the following officials were dismissed from service namely,
R.Palanivel (Forest Watcher), R.Raju (Forest Watcher), T.Mannarmannan
(Forester) and P.Perumal (Jeep Driver). It is further stated in the counter
affidavit that P.Kandasamy (Ranger), S.Krishnamoorthy (Forester),
K.Chinnathambi (Forest Guard), A. Lakshmanan (Forest Watcher) are continuing
in service. It is relevant to point out that various averments contained in
the affidavits filed in the above said three writ petitions relating to the
age, daily income and the relationship of the petitioners to the respective
deceased have not been specifically denied. It is relevant to extract the
last paragraph of the counter affidavit which reads as follows:
“In the above said circumstances, it is therefore prayed that this Hon ‘ ble
Court may be pleased to pass suitable orders as may be necessary, deem fit and
proper in the circumstances of the case and thus render justice”.
It is not even stated in the counter affidavit that the claim made by the
petitioners is excessive. Similarly, the liability of the respondents is not
disputed.
7. Heard both.
8. The learned counsel for the petitioners relying upon the judgment
rendered by a Division Bench of this Court in the case of K.Kabali @
Kabalesswaran Vs. State of Tamil Nadu and Others in Writ Appeal No.5 87 of
2001 and reported in 2006(2) TNLJ 33 submitted that when the averments and
allegations contained in the affidavit on material particulars have not been
denied by the respondents in the counter affidavit filed by them and when the
age, daily income and the relationship of the petitioners to the deceased are
not denied and the quantum of compensation claimed is also not disputed and
the very liability of the respondents is not disputed, the petitioners are
entitled for compensation as claimed by them and the writ petitions have to be
allowed.
9. The learned Special Government Pleader fairly submitted that in
view of the fact that the concerned Accused who were responsible for the death
of the above said three persons have been convicted by the Sessions Court,
Salem by its judgment dated 06.09.1995 rendered in S. C.No.200 of 1994 and
the accused happen to be officials of the Government of Tamil Nadu, the
petitioners are entitled for a reasonable compensation.
10. Taking into consideration the above said submissions made by the
counsel on either side, it has to be held that when there is no dispute as to
the cause of the death of the above said three persons and when the Sessions
Court Salem has convicted the concerned Accused who were responsible for the
death of the above said three persons, the theory of strict liability applies
to the facts of this case. In the above said decision, the Division Bench,
after referring to number of judgments of the Apex Court as well as this
Court, has held as follows:
“The above decisions make it clear that where public functionaries are
involved and the matter relates to the violation of fundamental rights or the
enforcement of public duties, the aggrieved person can very well approach this
Court for necessary relief, including compensation under Article 226 of the
Constitution of India”.
And in that case the Honourable Division Bench awarded a compensation
of Rs.3 lakhs taking into account of the fact that already a sum of Rs.1 lakh
had been paid to the petitioners therein.
11. The Honourable Supreme Court of India in the decision rendered in
Nilabati Behara Vs. State of Orissa reported in 1993 (2) S.C.C. 746 ,
awarded compensation to the father of the person, whose death was caused while
in police custody. The compensation was ordered in that case as the Court
reached the conclusion that the death of the person was caused while in police
custody. While considering the question as to the liability of the State for
payment of compensation for custodial death, the Court held as follows:
“(A) claim in public law for compensation for contravention of human
rights and fundamental freedoms, the protection of which is guaranteed in the
Constitution, is an acknowledged remedy for enforcement and protection of such
rights, and such a claim based on strict liability made by resorting to a
constitutional remedy provided for the enforcement of a fundamental right is
‘distinct from, and in addition to, the remedy in private law for damages for
the tort resulting from the contravention of the fundamental right.”
The Court further observed that: (S.C.C. pp. 762 – 63, para 17)
“The defence of sovereign immunity being inapplicable, and alien to
the concept of guarantee of fundamental rights, there can be no question of
such a defence being available in the constitutional remedy. It is this
principle which justifies award of monetary compensation for contravention of
fundamental rights guaranteed by the Constitution, when that is the only
practicable mode of redress available for the contravention made by the State
or its servants in the purported exercise of their powers, and enforcement of
the fundamental right is claimed by resort to the remedy in public law under
the Constitution by recourse to Articles 32 and 226 of the Constitution”.
The above said judgment of the Honourable Supreme court of India makes
it clear that for the violation of the fundamental rights of a citizen by the
State or its servants, in the purported exercise of their powers, the affected
citizen can resort to the remedy in public law by taking recourse to Article
226 of the Constitution of India. The Apex Court has also observed in that
decision that the compensation is in the nature of “exemplary damages” awarded
against the wrongdoer for the breach of its public law duty and is independent
of the rights available to the aggrieved party to claim compensation under the
private law in an action based on tort, through a suit instituted in a Court
of competent jurisdiction or/and prosecute the offender under the penal law.
Therefore, it is settled law that compensation can be awarded for violation of
fundamental rights in public law domain.
12. The High Court, being protector of Civi liberties of the citizen,
has not only the power and jurisdiction, but also an obligation to grant
relief in exercise of its jurisdiction under Article 226 of the Constitution
to the victim or the heir of the victim whose fundamental rights under Article
21 of the Constitution of India are established to have been flagrantly
infringed by calling upon the State to repair the damage done by its officers
to the fundamental rights of the citizen, notwithstanding the right of the
citizen to the remedy by way of a civil suit or criminal proceedings. The
State, of course has the right to be indemnified by and take such action as
may be available to it against the wrongdoer in accordance with law through
appropriate proceedings. The relief in exercise of power under Article 226 of
the Constitution of India would be granted once it is established that there
has been infringement of the fundamental rights of the citizen.
13. The Honourable Supreme Court of India in the decision rendered in
Malkiat Singh Vs. State of U.P. reported in 1998 (9) S.C.C. 351, awarded a
compensation of Rs.5 lakhs to the father of the person who was killed in an
alleged encounter with police. In the case of R. Dhanalakshmi Vs.
Government of Tamilnadu reported in 2004 W.L.R. 346, the learned single Judge
of this Court fixed a compensation of Rs.9 lakhs in respect of the custodial
death taking note of age, income of the deceased, family circumstances and
dependency etc, by applying the multiplier as provided under the Motor
Vehicles Act. This Court is of the view that the same principle adopted in
2004 W.L.R. 346 can be adopted to fix the compensation that is payable to the
petitioners in the above writ petitions.
14. (i) In W.P.No.1602 of 1999, the age of the deceased Bale @
Subramaniam was 25 years at the time of death; his income per day was Rs.6
0/-; the loss of income per year will be Rs.21,600/- and if the standard
1/3-rd deduction is made, the loss of income will be Rs.14,400/-, if the age
of the deceased i.e. 25 years is taken into account, as per the provisions of
the Motor Vehicles Act, the multiplier to be adopted will be 18 and the
compensation that could be arrived at is Rs.2 ,59,200/-; towards loss of love
and affection a sum of Rs.25,000/- could be easily awarded and towards mental
agony and suffering of the petitioners a sum of Rs.25,000/- could be fixed;
the death was caused on 29.10.1990, if interest at 9% is awarded on the
compensation amount on the sum of Rs.3,09,200/- up-to-date, it will come to
approximately Rs.7,26,620/-.
(ii) In W.P.No.1603 of 1999, the age of the deceased Rajamanickam was
31 years at the time of death; his income per day was Rs.60/-; the loss of
income per year will be Rs.21,600/- and if the standard 1/3-rd deduction is
made the loss of income will be Rs.14,400/-, if the age of the deceased i.e.
31 years is taken into account, as per the provisions of the Motor Vehicles
Act, the multiplier to be adopted will be 17 and the compensation that could
be arrived at is Rs.2,44,800/-; towards loss of love and affection a sum of
Rs.25,000/- could be easily awarded and towards mental agony and suffering of
the petitioners a sum of Rs.25,000/- could be fixed; the death was caused on
29.1 0.1990, if interest at 9% is awarded on the compensation amount on the
sum of Rs.2,94,800/- up-to-date, it will come to approximately Rs.7 ,06,046/-.
(iii) In W.P.No.1604 of 1999, the age of the deceased Jayaraman was 27
years at the time of death; his income per day was Rs.60/-; the loss of income
per year will be Rs.21,600/- and if the standard 1/3rd deduction is made the
loss of income will be Rs.14,400/-, if the age of the deceased i.e. 27 years
is taken into account, as per the provisions of the Motor Vehicles Act, the
multiplier to be adopted will be 18 and the compensation that could be arrived
at is Rs.2,59,200/-; towards loss of love and affection a sum of
Rs.25,000/could be easily awarded and towards mental agony and suffering of
the petitioners a sum of Rs.25,000/- could be fixed; the death was caused on
29.10 .1990, if interest at 9% is awarded on the compensation amount on the
sum of Rs.3,09,200/- up-to-date, it will come to approximately Rs.7,26,620/.
15. As calculated above, the compensation payable comes to more than
Rs.5 lakhs and as the petitioners themselves have claimed only Rs.5 lakhs as
compensation in each of the writ petitions, this Court is of the view that
considering the family circumstances, poverty driven condition of the
petitioners, etc., ends of justice would be met if the respondents State is
directed to pay a sum of Rs.5 lakhs to the petitioners, [(i) Varadammal in
W.P.No.1602 of 1999 (ii) Chinnaponnu, Minor.Ayyammal, Minor. Chinnamani and
Villaiammal in W.P.No.1603 of 199 9 and (iii) Samboornam in W.P.No.1604 of
1999], in each of the writ petitions by way of compensation for the death of
Bale @ Subramaniam, Rajamanickam and Jayaraman, respectively. The state shall
pay these amounts within a period of eight weeks from the date of receipt of
copy of this order. The State Government is directed to pay the sum of Rs.1.5
lakhs to the petitioners in the following manner:-
(i) Varadammal in W.P.No.1602 of 1999,
(ii) (a) Rs.25,000/- to Chinnaponnu (Second petitioner), (b) Rs.50,0
00/- to Minor Ayyammal, (Third petitioner) through her mother and natural
guardian Chinnaponnu, the second petitioner herein (c) Rs.50,000 /- to Minor
Chinnamani (fourth petitioner) through her mother and natural guardian
Chinnaponnu, the second petitioner herein and (d) Rs.25 ,000/- to Villaiammal
(fifth petitioner) in W.P.No.1603 of 1999 and
(iii) Samboornam (second petitioner) in W.P.No.1604 of 1999
from out of the said amount of Rs.5 lakhs, and invest the balance amount of
Rs.3.5 lakhs in each of the writ petitions within the said period of eight
weeks in the following names,
(i) Varadammal in W.P.No.1602 of 1999,
(ii) (a) Chinnaponnu (Second petitioner) Rs.58,000/-, (b) Minor.
Ayyammal (Third petitioner) Rs.1,17,000/- through her mother and natural
guardian Chinnaponnu (the second petitioner herein) (c) Minor Chinnamani
(fourth petitioner) Rs.1,17,000/- through her mother and natural guardian
Chinnaponnu (the second petitioner herein) and (d) Villaiammal (fifth
petitioner) Rs.58,000/- in W.P.No.1603 of 1999 and
(iii) Samboornam in W.P.No.1604 of 1999
as Fixed Deposits initially for a period of three years with the Tamilnadu
Power Finance Corporation. It is made clear that the respective petitioners
would be entitled to receive interest accrued on such deposit once in three
months. After expiry of the said period of three years, the respective
petitioners in each of the writ petitions are permitted to withdraw the
amount.
16. Mr. Gomathinayagam, Special Government Pleader submitted that
liberty may be given to the State Government to proceed against the actual
culprits viz., Accused 1, 2, 3, 4, 6 and 9 in S.C.No.200 of 1994 on the file
of the Principal Sessions Judge, Salem and to recover the compensation amount
paid to the petitioners in the above writ petitions. Considering the said
submission and the fact that the said Accused persons have been found to be
responsible for the death of the above said persons by the Sessions Court, it
is just and proper that the compensation amount paid to the petitioners should
be recovered from them. Therefore, the State Government is at liberty to
recover the compensation amounts that have been directed to be paid to the
petitioners in the above writ petitions from the salary, retirement benefits,
etc., payable to the accused 1, 2, 3, 4, 6 and 9, after observing the relevant
service rules applicable to them.
17. With the above directions, these writ petitions are disposed of.
No costs.
srk
To,
1. The Secretary to Government
State of Tamil Nadu
Department of Home Affairs,
Fort. St. George, Chennai – 600 009.
2. The Secretary to Government
Department of Forests,
Government of Tamilnadu
Fort. St. George, Chennai – 600 009.