1.The petitioner, a bruttaly 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 guanrteed 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 the 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 the 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 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 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 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 of every citizen of this country of being protected or provided shelter against the situation arising from breach of law and order and/or group of persons becoming irate in the communal frenzy 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 minority 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 medicinal support and help and was even admitted to VS 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 exgratia 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. 1,000/-. 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 :
"Injuries: Multiple CLWs over the face - scalp (1) about 2x1cm over Rt. frontal (2) an U shaped over parieto occipital region 5x3x1/2x1/2cm (3) A semi circular CLW over frontal region into the upper eyelid & Rt. lateral surface of the root of nose.
(4) A CLW of about 3x1/2x1/2 cm over the Rt.
side of cheek (5) CLW of about 1x1/2x1/2cm over the Rt.
mastoid region (6) CLW OP 1x1/2x1/2 over the Rt. ear lobo (7) 2 CLW of about 1x1/2x1/2 cm each over the temporal region X-rays Rt. femur AP-LAT : No fracture seen Ox 97279 to 83 Skull AP-LAT : Fracture through frontal bone involving frontal sinus
4.From the nature of the injuries set out in the certificate as well as the existence of fracture through frontal bone involving frontal sinus which has ultimately affected the vision of the petitioner and has caused loss of memory, shall have to be kept in mind and assertion made by the petitioner in this behalf are not only supported by his employer, who is a well known Senior Advocate of the City Civil Court, who has found that the petitioner, his clerk was incapacitated and not in a position to perform his duties so much so that he has even discharged him from service and the petitioner is thus admittedly deprived of his only source of livelihood and has, therefore, claimed that consistent with the declaration made and the promise held out by the State Government, at least Rs. 50,000/- ought to have been released to him, which is unfortunately withheld and promise held out by the State Government having not been fulfilled, to direct the State Government to make the payment of such amount by calling upon it to fulfil its constitutional obligation and the State Government should be held to be estopped by promissory estoppel from denying such benefit to the petitioner who is otherwise entitled to it. It must be stated that the respondents have not in the affidavit-in-reply or at the time of oral submission made before this court resisted the claim of the petitioner for compensation on the ground of existence of alternative remedy. The learned Assisgant Government Pleader Mr. Mukesh R. Patel has also not raised such contention fairly conceding to the fact that such an objection having not been raised in affidavit-in-reply or at the earlier stage, he would not like to take such technical objection. Even otherwise, the State Government was right in law and was fair in its just approach in not raising such objection because it knew that the claim of the petitioner was for enforcement of his fundamental right which was allegedly breached. In that view of the matter and looking to the spirit in law, the State Government has rightly understood the petition, this Court has to consider the claim of the petitioner for adequate compensation in case it holds that there was violation of his constitutional right, namely, `right to life' guaranteed by Article 21 of the Constitution of India.
5.In a wider sense, Mr. I.M. Pandya, learned Counsel appearing for the petitioner has submitted that the State is even otherwise liable to pay substantial damages and/or compensation to the petitioner who is unfortunate living injured person having undergone the stress, strain, trauma and night marish experiences of being brutally attacked by irate mob and having been rendered incapacitated to an extent of 20 per cent in his right eye so as to lose the vision of 20 per cent of his right eye and rendering him jobless and breadless. The substantial compensation and/or amount equivalent to the amount which would re-settle the petitioner in life therefore must be awarded by the State as the State has failed to guarantee the protection which is required to be afforded by the State to its citizen against the situation arising from breach of law and order situation, or against the situation arising from public peace, arising from breach of public order as it is the constitutional obligation of the State to provide protection to all individuals against public violence and to make all its citizen from any violence that may result into death and/or severe bodily injuries to innocent citizens. According to I.M. Pandya, learned Counsel appearing for the petitioner, such obligation of the State flows from Article 21 of the Constitution of India which guarantees "RIGHT TO LIFE TO ALL INDIVIDUALS AND RIGHT TO LIFE includes within its wider sweep and connotation right to protection against all violence to all individuals residing within the State. For breach of such fundamental right, State is directly under an obligation to provide full and total protection against all types of violence to all individuals and failure to provide such protection, would amount to denial of right to life for which State can be called upon to pay adequate compensation to the injured person. It is no doubt true that Article 21 of the Constitution of India guarantees "RIGHT TO LIFE TO ALL INDIVIDUALS RESIDING WITHIN THE STATE" and the words "RIGHT TO LIFE" are required to be broadly construed so as to include within the sweep of the fundamental right, the right of protection to life against any violence or use of force in or at the time of emergence of riots leading to the situation of breach of law and order and/or public order and rendering the lives of all individuals unsafe. If the State fails in its primary obligation to provide protection to all individuals against sudden or immediate eruption of violence related to communal riots or riots of any sort, individuals within the State would have no safety to their lives and would in substance be denied "THE RIGHT TO LIFE" within the meaning of Article 21 of the Constitution of India. He vehemently submitted that the "RIGHT TO LIFE" shall have to be very broadly construed so as to include within its sweep obligation on the State to provide protection to all its citizens and individuals from all kinds of violence arising from situation of breach of law and order or even breach of public order. If such a right does not exist and is found to be lacking, right to life within the meaning of Article 21 of the Constitution of India would be rendered lifeless, meaningless and non-existent right as State would simply plead its helplessness to effectively deal with situation arising from breach of law and order and/or public order and would with folded hands submit that it was a natural calamity for which it is not answerable. He, therefore, submitted that unless RIGHT TO PROTECTION against violence is read and guaranteed into right to life as guaranteed by Article 21 of the Constitution of India, the very Article would become lifeless and would not be throbbing with life full of blood and flesh. Unfortunately, to the aforesaid widest connotation of Article 21 of the Constitution of India, no effective reply is found from the respondents and the learned Assistant Government Pleader very strenuously urged before this Court that the words "RIGHT TO LIFE" as occurring in Article 21 of the Constitution of India should be construed very narrowly and its sweep should not be unnecessarily widened. Unfortunately, the judicial trend in swinging of pendulum has always been towards assigning and interpreting "Right to Life" very widely and broadly so as to include each and every aspect of life so as to include and fasten number of obligations which are to be fulfilled by the State towards all individuals. About Right to Life as guaranteed by Article 21 of the Constitution of India, consistent trend of the Court has been to give and supply the widest meaning to the phrase so as to make ones life worthliving. In my opinion, "The Right to Life" as guaranteed by Article 21 of the Constitution of India would include in its wider connotation the Right to Protection against any sort of violence or mob frenzy or communal frenzy and breach of such right is breach of fundamental right for which State is answerable to all individuals more particularly to the living injured or victims of such violence having suffered a worst night marish experience of such violence. The helplessness to deal with such situation is no defence or can hardly provide any justification to the State or its failure to guarantee and fulfil the Right to Life. The State within the meaning of Article 21 of the Constitution of India cannot be permitted to contend that it was helpless or it was beyond its control to provide protection to all individuals against violence which has erupted all of a sudden or which was an outcome of communal frenzy or outcome of some social problems such as problem of anti reservation riots or communal riots or riots arising from some local problems. In my opinion, there does exist an obligation to provide protection to all persons against any violence or apprehension of violence. If and when such protection is denied, Right to Life is denied to the individual affected thereby. The Right to Life as guaranteed by Article 21 of the Constitution of India is even very recently broadly construed by the Apex Court in the case of CHAMELI SINH v. STATE OF U.P. reported in 1996 (2) SCC 549. A Three Judge bench of the Supreme Court speaking through the Hon'ble Justice K. Ramaswamy, examined the content of Article 21 and the possible components of Right to Life. The constitutional Bench observed that the Right to Life would include right to food, water, decent environment, education, medical care and even right to shelter. The word Life in its real sense cannot and should not be read as right of mere existence which can be even comparable to animal existence. A large number of persons in this country live the life of animal existence as they are denied the various facets of right to life which in fact must keep pulsating the right to life as guaranteed by Article 21 of the Constitution of India. If the right to protection against situation of violence and force arising from breach of law and order situation or from breach of public order situation is found to be missing or is found to be non-existent, the right to life is in fact rendered nugatory and meaningless, a dead and spiritless right which is not worth of being called "The Right to Life" within the meaning of Article 21 of the Constitution of India. If the human life is to exist and human life is not regarded as mere animal existence but meaningful existence of an individual to be the "Man of Life". Right to life must include the right of protection to all individuals against any violence or use of force arising from breach of law and order situation or breach of public order. Recognition of such a right makes the human life meaningful and worthliving and does not permit the State to run away from its obligation to provide protection to all individuals against all sort of violence. In fact, it is in recognition of such right that as and when the individuals suffer the consequences of violence arising from breach of law and order situation or breach of public order, the State ordinarily comes forward with the declaration to provide cash assistance/cash doles to the persons affected. The immediate reaction of the State is not an act of charity. It is an act of recognition of its constitutional obligation and recognition of right to protection flowing from Article 21 of the Constitution of India. It is not open to the State having made the declaration consistent with its obligation of providing protection against any sort of violence to contend that it owes no duty of protection to individuals against violence or it cannot be permitted to state that amount of Rs.1,000/- was sufficient protection to an individual who has suffered the stress and strain of violence on its person. In my opinion, it is therefore right to contend and for this court to declare that Right to Life as guaranteed by Article 21 of the Constitution of India includes Right to Protection to all individuals against use of force, violence arising from situation of breach of law and order situation or breach of public order. It is in this wider sense that the petitioner is right in contending that Right to Life is denied to the petitioner in view of the widest connotation of the said right which would include the right to protection and that therefore he is entitled to compensation of Rs. 50,000/-. In fact, the State Government has already made a declaration and has impliedly accepted the obligation to afford protection to all individuals against eruption of violence arising from communal frenzy. Even otherwise, such a right to protection exists in every individual in the widest connotation of the words `Right to Life' and denial thereof makes individual entitled to appropriate relief from the courts of law. Mr. Pandya, learned Counsel appearing for the petitioner is therefore right in contending that the Right to Life is violated in this case and the petitioner is therefore entitled to adequate compensation. He has submitted that petitioner has lost 20 per cent of his vision of right eye because of the injury caused during violence and has suffered the loss of job and his life is rendered meaningless and useless. The question is now that of providing compensation to such an individual who has claimed compensation for breach of his fundamental right guaranteed by Article 21 of the Constitution of India. The existence of such right is not denied by the State but it is impliedly accepted by its single declaration of cash assistance or doles to the riot affected victims. This Court has now accepted right to protection as part and parcel of right to life and the State cannot be permitted to take up the stand of contending that there does not exist anything like right to protection in the Constitution of India.
6.The petitioner has in this connection produced the original certificate of his recent examination as back as 25th September 1995 by Medical Officer of Civil Hospital, who has certified that the disability in the eye is to the extent of 20 per cent and is permanent in nature. The said certificate is produced at Annexure-E and thus it is clear that the direct and immediate cause of the injury received by the petitioner, he has lost 20 per cent of the vision of right eye permanently and has been disabled to that extent so much so that he was relieved by his employer from the job. The petitioner is, therefore entitled to reasonable compensation and the respondents are liable to pay the same.
7.In case of disability of important organ of the body like eye which is to the extent of 20 per cent as certified by the Medical Officer of Government Hospital, it is well settled that substantial amount of compensation shall have to be awarded for future loss of earning, pain and suffering and the disability suffered by the individual because of permanent disability. The petitioner is therefore awarded the amount of Rs. 50,000/- towards compensation consistent with the declaration made by the State Government and consistent with its policy. The respondents are directed to pay the amount of Rs. 50,000/- (Rupees fifty thousand only) to the petitioner within six weeks from today failing which they shall be liable to pay the interest at the rate of 10 per cent on the said amount from the date of the petition till the amount is paid. The writ of this petition to be sent down to the respondents by the Office forthwith.
8.In view of the aforesaid, the petition succeeds. The respondents are directed to make the payment of Rs. 50,000/- (Rupees fifty thousand only) as compensation to the petitioner within six weeks from today. Rule is accordingly made absolute. There shall be no order as to costs.
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