@JUDGMENTTAG-ORDER
A. Arumughaswamy, J.@mdashAs the common question of law and facts are involved in all these writ petitions, these writ petitions are disposed
of by a common order. W.P. No. 2705 of 1999 has been filed for issuing a writ of certiorarified mandamus calling for the records relating to the
order of the 2nd respondent passed in G.O.Ms. No. 1834 (Law and Order P) Department, dated 6.11.1998 and quash the same in so far as the
fixation of the compensation to the tune of Rs. 2 lakhs only and directing the respondents to sanction and pay a sum of Rs. 1,84,42,775/- as
ascertained by the Enquiry Commission headed by Thiru V.K. Thirunavukarasu, District Judge in his report dated 25.6.1997 forthwith with
interest.
2. W.P. No. 6163 of 1999 has been filed for issuing a writ of certiorarified mandamus calling for the records relating to the order of the 2nd
respondent passed in G.O. Ms. No. 1834 (Law and Order P) Department, dated 6.11.1998 and quash the same in so far as it restricts the
compensation to Rs. 2 lakhs only and directing the respondents to pay a sum of Rs. 85,74,000/- to the first petitioner as compensation as
recommended by the One Man Commission headed by in its report dated 25.6.1997 forthwith with interest.
3. W.P. No. 10146 of 1999 has been filed for issuing a writ of mandamus directing the respondents to pay Rs. 70,00,000/- as damages to the
petitioner for the loss sustained by the petitioners during the mob-violence and riot which took place on 10-5-1996 at Tuticorin.
4. The facts of the case are as follows:
On the eve of the Assembly Elections, there was a communal clash in Thoothukudi town on 9.5.1996 between Baradhavar (Fernando) and Nadar
communities, which continued unabated for a few days. On 11.5.1996, there was a police firing, resulting in the death of few persons. During such
rioting, large scale of arson and looting took place, resulting in damages to properties of several persons belonging to the two groups. Thereafter,
the people belonging to business class of Tuticorin shut down their shops from 16.5.1996 demanding adequate police protection and payment of
compensation to those who had sustained loss due to such communal clash. At that stage, the Government of Tamil Nadu in exercise of the
powers conferred u/s 3(1) of the Commissions of Inquiry Act, 1952, constituted a Commission of Inquiry headed by a District Judge. The terms of
reference were as follows:-
(i) To inquire into and report the cases and circumstances that led to the clashes between two communities in Thoothukudi from 10-5-1996 and
subsequent occurrences of Law and Order disturbances.
(ii) To inquire into and report the causes and circumstances that led to the opening of fire by the Police on 11-5-1996, and as to whether the
Police firing is justified.
(iii) To inquire into and to identify the victims who sustained injuries and also the persons who actually suffered loss or damages to property,
business establishment, etc., in the above mentioned violent incidents and to assess the extent of damages and to suggest the quantum of
compensation to be paid to the victims.
(iv) To recommend suitable measures to prevent such occurrences in future and also to suggest measures to maintain communal harmony and
lasting peace.
5. The Commission in its report recommended for payment of compensation in respect of 186 claims. The Government by G.O. Ms. No.
SS.II/495-5/97, Public Department, dated 16.10.1997 ""accepted the report of the Commission on principle"" and forwarded the report to the
respective departments for examination, particularly with regard to payment of compensation as suggested by the Commission. Subsequently, the
Government in G.O. Ms. No. 1834 (Law and Order. P) Department dated 6.11.1998, sanctioned compensation to 186 persons equal to the
quantum of loss sustained by the claimants or Rs. 2 lakhs each, whichever is less. Against the same, the petitioners have filed these writ petitions
6. The report of the Commission has been accepted by the Government. But the defence raised by the Government in these writ petitions was that
instead of filing the suit for assessing damages, the petitioners have filed the present writ petitions and therefore, the writ petitions are not
maintainable.
7. Therefore, the learned single Judge, by order dated 10.11.2000, has referred the matter to be placed before a Larger Bench. The terms of
reference are as follows:-
8. Considering all the above aspects and in view of the fact that the decisions referred to above relate only to compensation for the loss of life and
no decision fixing the responsibility of the State for payment of compensation for the loss of property of the citizens was put-forth before this Court
except the decision in ""Coimbatore case"" and also in view of the fact that the issue had not been seriously raised before the Division Bench of this
Court in Writ Appeal No. 314 of 1989 dated 08.12.1998 and considering the happenings of frequent communal clashes now a days in many parts
of the State, involving loss of valuable life and damage to properties, I am of the view that an authoritative decision is called for by a Larger Bench
of this Court. It has to be considered in view of the deletion of Article 19(1)(f) of the Constitution, viz., right of a citizen to challenge (sic)the
freedom of property from Chapter-III of ""Fundamental Rights"", whether it is obligatory on the part of the State to compensate the entire loss
caused to the properties of citizens due to communal clashes etc.
8. Accordingly, the matters have been placed before the Full Bench. The Full Bench, by order dated 29.9.2006 (reported in P.P.M. Thangaiah
Nadar Firm and Others Vs. The Government of Tamil Nadu, has held that this Court has got jurisdiction to entertain the writ petitions under
Article 226 and 300-A of the Constitution of India. In paragraph 38, the Full Bench has observed as follows:-
38. Now the inevitable end of the journey or may be beginning of another. In view of the various decisions noticed by us and many other decisions
referred to in such decisions, the following conclusions can be reached. The State is not necessarily liable in every case where there is loss of life or
damage to the property during rioting. Where, however, it is established that the officers of the State ordained with duty of maintaining law and
order have failed to protect the life, liberty and property of person and such failure amounts to dereliction of duty, the State would be liable to pay
compensation to the victim. Such liability can be enforced through Public Law remedy or Common Law remedy. Where, necessary facts to
establish culpable negligence on the part of the officials are available, the High Court under Article 226 can issue appropriate direction. Where,
however, the main aspect relating to culpable negligence of the officer is seriously disputed, filing of suit may be more appropriate remedy. No hard
and fast rule can be laid down on these aspects and obviously the availability of remedy under Article 226 would depend upon the facts and
circumstances of each case. Compensation for loss to the property can also be claimed under Article 226 and merely because right to property
has been deleted from the Chapter of Fundamental Rights and has been recognised as a Constitutional right, would not disentitle the High Court to
examine that question in any appropriate case.
9. With regard to the question relating to value to be attached to the report of a Commission constituted under the Commissions of Inquiry Act, the
Full Bench in paragraphs 40 and 43, observed as follows:-
40. It cannot be disputed that the report of a Commission of Inquiry is not binding on the State which constitutes such Commission of Inquiry nor
its findings are binding on those against whom any recommendation is made. The conclusions of a Commission of Inquiry are not admissible in a
Court of law, in criminal case or even in civil case. Such conclusions are merely advisory in nature.
41. ...
42. ...
43. ...
44. Therefore, even if the report of a Commission of Inquiry is not legally binding and has got no evidentiary value, once such report, to the extend
it is accepted by the State, obviously it would not be fair on the part of the State to contend that it is not bound by the findings of the Commission
of Inquiry. In the language of the Supreme Court,
Acceptance of the report of the Commission by the Government would only suggest that being bound by the rule of law and having duty to act
fairly, it has endorsed to act upon it.
10. After answering all the referred questions, the Full Bench remitted the matter back to this Court for hearing.
11. In the report, the Commission has recommended a sum of Rs. 1,84,42,775/- as compensation in W.P. No. 2705/99, a sum of Rs.
70,00,000/- as compensation for the petitioners in WP. No. 10146 of 1999 and a sum of Rs. 85,74,000/- as compensation for the petitioners in
WP. No. 6163 of 1999. Even in the Full Bench Order of this Court dated 29.9.2006, these aspects have been considered and the Full Bench
after elaborately dealt with the matter has held that this Court can very well deal with the matter as narrated earlier.
12. Further, when once the report of the Commission has been accepted by the Government, it is not fair on their part to raise a defence that the
petitioners ought to have approached the civil court for assessing the damages. Even in the commencement of the Government order cited above, it
has been stated that it has been proved in the Legislature and separate headings have also been provided. But after passing the impugned
Government order dated 6.11.1998 fixing the maximum compensation amount of Rs. 2 Lakhs, now it appears that the petitioners are claiming
more than a Crore.
13. Now coming to the compensation fixed by the Government, it appears that it was based on the report of the Commission headed by a District
Judge who has made spot inspection and assessed the damages. The said Commission Report has been accepted by the Government as a policy
decision. In view of the acceptance of the same, this Court is of the view that some riot had taken place in the particular area in which losses have
been caused to the properties of the persons including the petitioners have been proved. It also appears that the Commissioner has assessed the
actual damage of the properties with the help of the revenue people. Therefore, on the basis of the loss sustained to the properties of the
petitioners, compensation has been arrived at by the Commission.
14. At this stage, as contended by Mr. V.S. Sethuraman, learned Additional Advocate General, if the petitioners are directed to file suit for
damages, definitely, the petitioners will suffer from further loss and the Government also has to bear unnecessary expenditure by way of interest
which would become more than the claim. Further, earlier the defence of the State is in respect of maintainability only. Since the same has been
satisfied by this Court, this Court of the view that the compensation arrived at by the Commission in respect of each petitioner is correct.
15. In view of all the above, the respondents are directed to make the payment of compensation to the petitioners as derived by the Commission
appointed by the State Government within three months from the date of receipt of a copy of this Order and even though, the petitioners are
entitled for 12% interest, no order has been passed in respect of the same aiming that the amount will be settled very soon. In the event of failure to
settle the same within the time prescribed by this Court, the petitioners are entitled for the said compensation amount with 9% interest. With the
above observation, the Writ Petitions are disposed of. No costs. Consequently, connected Miscellaneous Petitions are also closed.
