Municipal Corporation of Greater Mumbai v. G.D’souza & Deputy Commissioner of Police, Zone V Mumbai

12 The learned counsel Mr. Deshmukh, while calling in question the direction to the Municipal Commissioner to pay compensation of Rs.10 Lakhs to the victim, would submit that no doubt the accident that had taken place was an unfortunate incident, and it is also not disputed that Ms.Marilyn had sustained head injury in the accident. However, the grievance of Mr. Deshmukh is that the Commission had imposed a liability by rendering a finding that the Corporation was negligent in discharge of its duty. At the outset, he would submit that the power of the Commission under the protection of Human Rights Commission Act, 1993, is only to make recommendations to the concerned Government or Authority, to make payment of compensation or damages to the complainant or the victim, or the members of the family, as the Commission may consider necessary, but it cannot impose cost/damages to be paid by way of compensation, making it mandatory to make the payment. Apart from this, it is also his submission that unless and until the negligence was established, the Commission could not have imposed or directed payment of compensation, as for this purpose, the act of negligence ought to have been established as a find finding, but when neither the police report nor the report of the Deputy CH Engineer, established any negligence on part of the Corporation, such an order could not have been passed. The learned counsel Mr.Tomar, representing respondent no.1, would submit that the newspaper cuttings were accompanied with the photographs, and even he had placed photographs on record to show that there are many potholes on the road, and secondly he also produced before us the photographs and the treatment papers of his wife, to demonstrate her present medical status and the agony and suffering which she has undergone for almost a decade, and he would submit that the Commission has, therefore, rightly directed payment of compensation.

13 In order to appreciate the legality of the impugned order passed by the Human Rights Commission, as the Corporation has raised the challenge to the same, we must refer to the provisions of the Act of 1993. India being a party to the International covenant on civil and political rights, and international covenant on economic, social, and cultural rights adopted by the General Assembly of the United Nations, with the human rights embodied in the covenants being substantially protected by the Constitution, the Act of 1993 was enacted with a view to bring about the greater accountability and transparency in issues relating to human rights. The Act provides for Constitution of the National Human Rights Commission at the national level and the State Human Rights Commission constituted under Section 21, at the level of the State Government. The functions and powers of the Commission as specifically set out in Section 12 of the Act, which permit the Commission to inquire suo moto, or on a petition presented to it by a victim or any person on his behalf, or on direction or order of any Court into complaint of violation of human rights or abatement thereof, or negligence in the prevention of such violation by a public servant. Apart from this, the Commission is also under an obligation to perform all other functions which are set out in Section 12 of the Act. In order to exercise it's function, the Commission is vested with the powers of a Civil Court, trying a suit under the Civil Procedure Code and the Commission is deemed to be a civil court. Every proceeding before the Commission is deemed to be judicial proceedings within the meaning of Section 193 and 228 and for the purpose of section 196 of the IPC and the Commission is deemed to be a civil court for all other purposes, or for the purpose of Section 195 and Chapter XXVI of the Code of Criminal Procedure. For the purpose of conducting an investigation pertaining to an inquiry, it is open for the Commission to utilize the services of any Officer or investigating agency of the Central Government or any State Government, as the case may be.

14 Chapter IV of the Act of 1993 prescribe the procedure for making inquiry into the complaint and we deem it necessary to reproduce the same:- “17. Inquiry into complaints. - The Commission while inquiring into the complaints of violations of human rights may-

(i) call for information or report from the Central Government or any State

Government or any other authority or organisation subordinate thereto within such time as may be specified by it: Provided that- (a) if the information or report is not received within the time stipulated by the Commission, it may proceed to inquire into the complaint on its own; (b) if, on receipt of information or report, the Commission is satisfied either that no further inquiry is required or that the required action has been initiated or taken by the concerned Government or authority, it may not proceed with the complaint and inform the complainant accordingly;

(ii) without prejudice to anything contained in clause (i), if it considers necessary, having regard to the nature of the complaint, initiate an inquiry.

18. Steps during and after inquiry. The Commission may take any of the following steps during or upon the completion of an inquiry held under this Act, namely:- (a) where the inquiry discloses the commission of violation of human rights or negligence in the prevention of violation of human rights or abetment thereof by a public servant, it may recommend to the concerned Government or authority-

(i) to make payment of compensation or damages to the complainant or to the victim or the members of his family as the Commission may consider necessary;

(ii) to initiate proceedings for prosecution or such other suitable action as the

(iii) to take such further action as it may think fit;

(b) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;

(c) recommend to the concerned Government or authority at any stage of the inquiry for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary;

(d) subject to the provisions of clause (e), provide a copy of the inquiry report to the petitioner or his representative; (e) the Commission shall send a copy of its inquiry report together with its recommendations to the concerned Government or authority and the concerned Government or authority shall, within a period of one month, or such further time as the Commission may allow, forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission; (f) the Commission shall publish its inquiry report together with the comments of the concerned Government or authority, if any, and the action taken or proposed to be taken by the concerned Government or authority on the recommendations of the Commission.”

15 If the outcome of the inquiry conducted by the Commission disclose commission of violation of human rights or negligence in prevention of violation of human rights or abatement thereof by a public servant, it has the power to make recommendation to the concerned State Government or the Authority.

16 Section 18 of the Protection of Human Rights Act, 1993, was amended in 2006, permitting the Commission to recommend payment of compensation or damages and also direct proceedings for prosecution and other actions, as it may deem fit against the public servant. It is also authorized to recommend grant of interim relief. Any inquiry conducted by the Human Rights Commission can also be presented as part of the Report and the said report alongwith its recommendations can be forwarded to the concerned Government Authority. The binding nature of recommendation from the NHRC is a subject of diverse opinions expressed through various High Courts. In State of Uttar Pradesh & Ors. vs. NHRC & Ors.10 the Division Bench of Allahabad High Court considered the Scheme of the Act and in particular use of the expression ‘recommend’ in Section 18 thereof and it observed thus:- “16.The basic question is whether the use of the expression “recommend” in Section 18(a) can be treated by the State Government or by an authority as merely an opinion or a suggestion which can be ignored with impunity. In our view, to place such a construction on the expression “recommend” would dilute the efficacy of the Commission and defeat the statutory object underlying the constitution of such a body. An authority or a government which is aggrieved by the order of the Commission is entitled to challenge the order. Since no appeal is provided by the Act against an order of the Commission, the power of judicial review is available when an order of the Commission is questioned. Having regard to the importance of the rule of law which is but a manifestation of the guarantee of fair treatment under Article 14 and of the basic principles of equality, it would not be possible to accept the construction that the State Government can ignore the recommendations of the Commission under Section 18 at its discretion or in its wisdom. That the Commission is not merely a body which is to render opinions which will have no sanctity or efficacy in enforcement, cannot be accepted. This is evident from the provisions of clause (b) of Section 18 under which the Commission is entitled to approach the Supreme Court or the High Court for such directions, orders or writs as the Court may deem fit and necessary. 10 (2016)117 ALR 27 Governed as we are by the rule of law and by the fundamental norms of the protection of life and liberty and human dignity under a constitutional order, it will not be open to the State Government to disregard the view of the Commission. The Commission has directed the State Government to report compliance. The State Government is at liberty to challenge the order of the Commission on merits since no appeal is provided by the Act. But it cannot in the absence of the order being set aside, modified or reviewed disregard the order at its own discretion. While a challenge to the order of the Commission is available in exercise of the power of judicial review, the State Government subject to this right, is duty bound to comply with the order. Otherwise the purpose of enacting the legislation would be defeated. The provisions of the Act which have been made to enforce the constitutional protection of life and liberty by enabling the Commission to grant compensation for violations of human rights would be rendered nugatory. A construction which will produce that result cannot be adopted and must be rejected.”

17 The Full Bench of Madras High Court in Abdul Sathar vs. Principal Secretary to Government, & Ors.,11 by considering the earlier Division Bench decisions, arrived at a conclusion that there was no conflict of views between the Division Bench Judgments and the reference as to whether the decision made by the State Human Rights Commission under Section 18 of the Human Rights Act, 1993 is only a recommendation and not an adjudicated order capable of immediate enforcement or otherwise was answered as below:- “Ans: The recommendation of the Commission made under Section 18 of the Act, is binding on the Government or Authority. The Government is under a legal obligation to forward its comments on the Report including the action taken or proposed to be taken to the Commission in terms of Sub Clause (e) of Section 18. Therefore, the recommendation of the H.R. Commission under Section 18 is an adjudicatory order which is legally and immediately enforceable. If the concerned Government or authority fails to implement the recommendation of the Commission within the time stipulated under Section 18(e) of the Act, the Commission can approach the Constitutional Court under Section 18(b) of the Act for enforcement by seeking issuance of appropriate Writ/order/direction. We having held the recommendation to be binding, axiomatically, sanctus and sacrosanct public duty is imposed on the concerned Government or authority to implement the recommendation. It is also clarified that if the Commission is the petitioner before the Constitutional Court under Section 18(b) of the Act, it shall not be open to the concerned Government or authority to oppose the petition for implementation of its recommendation, unless the concerned Government or authority files a petition seeking judicial review of the Commission's recommendation, provided that the concerned Government or authority has expressed their intention to seek judicial review to the Commission's recommendation in terms of Section 18(e) of the Act.” Similarly, the reference to the question as to, whether the State has any discretion to avoid implementation of the decision made so by the State Human Rights Commission and under what circumstances, it is held that since the recommendation is binding the State has no discretion to avoid its implementation and in case if the State is aggrieved it can only resort to legal remedy seeking judicial review of the recommendation of the Commission.

18 Recently, the Delhi High Court in the decision of Kiran Singh vs. National Human Rights Commission & Ors.12, on analysing various decisions and the divergent views expressed on the question about the binding nature of the decision of the State or National Human Rights Commission, expressed its concurrence with Allahabad High Court and Madras High Court holding that, the recommendations are binding in nature and the purpose of the Protection of Human Rights Act and the reasons for its enactment would be nullified if the Commissions are rendered powerless and merely recommending bodies. In Para 60 of the said decision, the Court observed thus:- “60. In the opinion of this Court, human rights are not ordinary rights. These rights are integral to Article 21 which recognizes the Right to Life.

Commissions under the Human rights Act are meant to look into any infractions and exercise powers under the Act. Reports and Recommendations of Human Rights Commissions need to be treated with seriousness and not rendered edentulous or pointless. If Governments are aggrieved, they are free to challenge the orders of State Commissions and NHRC. But such inquiries and reports cannot be simply ignored. Human Rights Commissions are not to be 'toothless tigers' but have to be 'fierce defenders' safeguarding the most basic right of humans ie., the right to live without fear and to live with dignity.” The High Court also noted that the above reasoning does not in any manner contradict the findings of the Supreme Court in N.C. Dhoundial vs. Union of India & Ors.13 which had observed that the Commission does not have unlimited jurisdiction and is bound by the duties and functions as defined in the Act and must necessarily act within the parameters prescribed by the Act and while making the recommendations it is duty bound to act within the said powers.

19 From the aforesaid observations from the decision of the High Court of Delhi and Allahabad, we have no hesitancy in holding that the recommendation of the Human Rights Commission is liable to be treated as binding and definitely cannot be ignored with impunity as in our view, if it is held to be merely recommendary, leaving it to the discretion of the Government/Authority whether to implement the same or not it would defeat the avowed purpose for which the Commission if constituted. However, such an order passed by the Commission, in absence of a provision of appeal provided under the Act is permitted to be reviewed in exercise of the power of judicial review available to a constitutional court. If the State Government or Authority is aggrieved by a decision of the Commission, and when it approaches the constitutional court by raising a challenge to the same, the Court is duty bound to exercise its power of review, and examine the correctness of the said decision and this is what we propose to do on taking into consideration the grounds on which the Corporation has raised a challenge to the impugned order of the Commission. We must, at the outset, note that the payment of compensation for a tort/wrong definitely require a trial. It is no doubt true that, since considerable point of time, the Apex Court has permitted grant of compensation by way of a public law remedy, leaving it open to the party to claim compensation by filing proceedings before the civil court, where on establishing negligence, the proper amount of compensation/ damages can be claimed, but nonetheless, the higher Courts have entertained grievances and allowed compensation/ damages to the aggrieved party. The moot question for consideration is whether the Human Rights Commission is enjoined with such a power, and the answer according to us, is clearly in the negative as it is a creature of the statute and shall only discharge the functions and duties entrusted to it, and also in the manner prescribed by the statute. Definitely, the Human Rights Commission being a statutory body and whose orders are subject to judicial review is restricted in its scope to a fact finding body inquiring into the complaints of violation of human rights and when it arise at a conclusion that the inquiry disclosed violation of human rights or negligence in prevention of violation of human rights or abatement thereof by public servant, it may make necessary recommendations. However, in our view the Commission cannot assume the role of a constitutional court, which on considering the public law remedy available to a victim or his family has allowed compensation to be paid.

20 By keeping the aforesaid basic premise in mind, we turn our attention to the impugned order and the genesis of the Commission to record a finding of negligence, followed by award of compensation to the victim. It is not in dispute that a Commission called for the response from the police as well as the Corporation, and it received reports from both. Referring to the police report, there is an entry in station diary dated 7/4/2015, which has recorded thus:- ‘एक ं दरीत क े लेल्या चौकशीवरुन असे निनष्पन्न होते की, यातील अपघातग्रस्त मनिहला श्रीमती मेरिरलीन रेमाडीस निह तितचे पती श्री.शेल्डन हे मोटार स्क ु टर चालनिवत असताना अंधार असल्याने, त्यांची मोटार स्क ु टर खड्डयात गेल्याने स्लीप झाली होती व त्यात ते दोघेही जखमी झाले होते त्याबाबत मानिहम पोलीस ठाणे येथे ए.पी.आर. प्राप्त झाल्याने ठाणे अंमलदार पोउपनिन निगरवले यांनी जावून चौकशी क े ली असता नमुद अपघातग्रस्त जखमींनी त्यांची कोणत्याही प्रकारची तक्रार अगर संशय नसल्याचे सांगीतले होते.' We fail to understand as to how the Commission blindly relied upon the said entry, which is nothing but a conclusion drawn on the basis of some inquiry. Who conducted the inquiry, what was the inquiry that was carried out, is not at all considered of any relevance by the commission. During the course of hearing, Mr. Deshmukh has placed before us certain statements which formed part of the investigation, and these statements are forwarded by the Deputy Commissioner of Police to the Commission on 20/7/2017 with reference to the complaint of respondent no.1.

21 The Deputy Commissioner of police, Zone V reported to the Commission that during course of inquiry the statement of one PSI Girvale dated was recorded on 18/7/2017, wherein he stated that he was on duty on 5/4/2015 from 20.00 hours to 8.00 a.m on 6/4/2015. At around 6:15 a.m, he received message from Bhabha hospital, Bandra, that one lady, Ms. Marilyn while travelling along with her husband on his motorcycle from Bandra to Dadar, fell down as the vehicle hit a ditch and she sustained head injury. On receipt of this message, he approached the hospital and made inquiry with Sheldon Remedios, who informed him that when they arrived on their scooter in front of Mahim Church, it was dark and he could not notice the pit, and his scooter toppled, and both of them fell down, and his wife became unconscious. In his statement, he categorically stated that since it was dark, he could not notice the ditch and his vehicle slipped, and his wife sustained injuries and even he sustained minor injury. The DCP recorded that since an APR was received in Mahim Police Station, the Thane Amaldar Girvale made inquiry with the injured who informed that they had no grievance. The report is accompanied by the statement of Govardhan Girvale as well as Sheldon Remedios, respondent no.1 recorded on 07/04/2015.

22 Now turning our attention to the report of the Deputy Chief Engineer, (Roads), with reference to the complaint received by the Commission, who by his communication dated 21/09/2017, reported thus:- “In view of above, this office has made an enquiry at that time with local public /shopkeepers at Mahim junction when they said they didn't know about such accident took place at Mahim junction site. However, they have learnt about it from newspaper. The M.C.G.M. staff has also enquired with Mahim Traffic Police and Mahim Police Station regarding this matter but no such complaint was lodged regarding the accident at that time. The report submitted to the then Hon'ble M.C. is attached with photographs at Pg.C-01 to C-43. It is further added here that, as per Traffic Police permission, the improvement of Mahim junction work was being carried out during night hours only (i.e. from 12 midnight to 5.30 a.m.) in the presence of M.C.G.M. staff, Contractor's staff and Third Party Auditor's staff when no such accident was noticed. While executing the work, Traffic Police had insisted to take such quantum of work that can be completed within night period with reinstatement by providing metal plates and to allow vehicular traffic movement to avoid traffic jam and accordingly, work was carried out at site. There were no potholes on site at that time. It was learnt from newspaper that while turning after Mahim Causeway, the accident took place. The place Mahim Causeway is about 500 mtrs. away from work site (i.e. Mahim Junction site) where no work was in progress. Under the circumstances, as explained above, it can be concluded that the said incident is not occurred at work site and no negligence of staff is observed. Therefore, it is requested that the present case may kindly be disposed off please.”

23 The above report categorically inform the Commission that on inquiry being made with the shopkeepers at Mahim Junction, nobody was aware about the incident, and they only came to know of it from the news paper. Inquiries were also made with Mahim Traffic Police and Mahim police station, but nobody was aware of the occurrence of the accident. Referring to the spot of incident, as the newspaper had reported that the incident occurred after turning Mahim causeway, it was reported that Mahim causeway is about 500 metres away from work site i.e. Mahim Junction site, where no work was in progress and therefore it was evident that the incident had not occurred at work site and there was no negligence. The report was accompanied with necessary photographs which showed the barricading, but since it was 500 metres away, definitely the work site was not the cause for the accident. Apart from this, the Deputy C.H. (Roads), with reference to the rejoinder submitted by the complainant, also submitted that the resurfacing work, which was in progress, at Mahim junction was done with proper safety measures, and the resurfacing work includes milling of the existing surface with the help of milling machine and the milled surface had to be relaid by bitumen layer and there was no activity of excavation/digging, which clearly represented that the accident did not happen due to the excavated area. It is also reported there were no potholes at the relevant time on the portion of Mahim junction site, where resurfacing work was in progress. Apart from this, it is also stated that the Mahim junction improvement work was carried out during night hours only, i.e. 12 midnight to 5:30 am with the presence of MCGM staff, contractor’s staff and third Party Auditor’s staff at the work site. The Corporation has also placed on record the communications addressed by the Executive engineer (Roads) City- IV to the Deputy Chief Engineer for securing NOC for road excavation for strengthening and improvement of minor roads in asphaltic treatment in city division, at L.J. Road, Mori Road and Arun Kumar Vaidya Marg in Mahim Traffic Division. The communication was also addressed to the Additional Commissioner of Police Traffic about road closing traffic diversion permission for improvement of Mahim junction at Mahim Church in G/N ward. Relying upon the aforesaid correspondence alongwith supporting photographs it was reported to the Commission that for carrying out the work, the necessary arrangement shall be made to revise traffic closure/diversion and the directions were strictly implemented.

24 In the wake of the aforesaid denial from the respondents, the question that arises for consideration is, what was the material on the basis of which the Commission arrived at an inference that there was negligence on part of the Corporation, which resulted into the accident. The Commission has arrived at a conclusion that the Civic Authority was under duty and obligation to maintain the road free of potholes and ensure smooth flow of traffic on the road and it inferred that the roads maintained by the Corporation are not in good state, but we fail to see any material on the basis of which this inference is drawn, as the commission has recorded that the Corporation is negligent and awarded compensation without reflecting on the negligence on part of its Officers, as with the contest being raised by the Corporation, it should have been a matter of evidence.

25 Another relevant aspect of the matter is the award of compensation by the impugned order passed by the Commission premised on the negligence exhibited on part of the Corporation in not maintaining the roads in a proper state. The award of compensation, which arises out of a tortious liability entitle a person who is wronged to be compensated by the wrongdoer. The compensation to be paid being introduced in torts, finds its way through labor legislations and post independence, it was included in various statutes like the Consumer Protection Act, 1986, Motor Vehicle Act, 1988, Railway Act, 1989 as well as Protection of Human Rights Act, 1993, Protection of Women against Domestic Violence Act, 2005.

26 The fundamental rights enshrined in Part III of the Constitution are available to the citizens and Article 12 to 35 exist in form of remedy for enforcement of rights conferred by the said Part, from which it is inferred that for enforcement of the rights, there exist a remedy and though the earliest of the cases for granting compensation in exercise of writ jurisdiction is to be found in the decision of the Apex Court Khatri vs. State of Bihar,14 where the Courts forged new remedies for the purpose of vindicating the most precious of the fundamental right to life and personal liberty. In Rudul Sah vs State Of Bihar Another,15 the Apex Court brought about a revolutionary breakthrough in human rights jurisprudence by granting monetary compensation to the victim on account of states lawlessness on part of Bihar Government for keeping the Petitioner in illegal detention for over 14 years after his acquittal from murder charge, and he was held entitled to compensation in the sum of Rs.30,000/-. Granting compensation of Rs.30,000/- as interim measure, the Court clarified that the order shall not preclude the Petitioner from bringing a Suit to recover appropriate damages from State and its erring officials and the order of compensation passed was palliative in nature, as it was held that the Petitioner cannot be left penniless until the end of his Suit followed by the proceedings before the Appellate Court and Execution Proceedings. In Nilabati Behera vs. State of Orissa, (Supra) the Supreme Court paved the way for compensation not only under Article 32, but also under Article 226 of the Constitution, when it observed thus:- “34. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen.” Consequently, the High Courts gave a kick-start to compensate for the loss suffered by the victim for breach of fundamental rights primarily under Article 21. In case of D.K. Basu vs. State of West Bengal (supra), the remedy of compensation under public law was recognized and reinforced with the following observation:- “44. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.” In United Air Travel Services vs. Union of India,16 where right to equality was found to be violated, compensation of Rs.[5] Lakhs was awarded, as the Petitioners were deprived of their right to secure the quota on patently wrongful order passed for the reasons, which did not apply to them and for conditions, which have been specifically exempted. Recording that the facts of the case undoubtedly gave rise to the satisfaction of parameters as a fit case for grant of compensation, on a conspectus of the facts including the number of pilgrims for whom the Petitioner would have been entitled to arrange the Haj Pilgrimage, the compensation of Rs.[5] Lakhs was held to be adequate compensation for the loss suffered and subserve the end of justice, though it was noted that there is no quantification based on actual loss, but the Award was in the nature of damages in public law. In Ramlila Maidan Incident, In re,17 The Supreme Court took suo-motu cognizance of Article 19(1)(a) and (b) alongwith Article 21 and held that the negligence of the State and the trust was prima facie established and it directed Ramdev’s foundation, Bharat Swabhiman Trust, to pay 25% of compensation to the dead and injured and ordered payment of Rs.[5] Lakhs compensation per affected family. The compensation awarded was treated as ad hoc and in the event the deceased, or the injured person/enured persons or the persons claiming through them instituted any legal proceedings for the purpose of the compensation awarded in the Judgment was directed to be adjusted in the final proceedings. The trend of awarding compensation gained momentum and in various subsequent cases the compensation was awarded to victim of State excesses when their fundamental rights were encroached and this involve the cases of atrocities committed by the police or cases of custodial death and torture.

27 From the aforesaid decisions, it is seen that the compensatory jurisdiction in public law is a judicial innovation allowing the constitutional courts to award monetary damages against the State for violation of fundamental rights or for tortious acts and it transformed the public law from merely civilizing power into a tool for compensating victims, and is commonly exercised under Article 32 and/or 226 of the Constitution of India. The key aspect of compensatory jurisprudence is, this remedy is available before the constitutional courts against the State for ‘public law wrongs’ and is primarily invoked when there is violation of fundamental rights and in specific Article 21 of the Constitution at the instance of the State functionaries and the precedents reveal that such compensation has been paid in the past for custodial death, illegal detention or police brutality. The purpose of the public law remedy and the jurisdiction being exercised is to hold the State accountable, and as a mode of rehabilitation of victim or their families and also to deter future violations. This remedy is distinguishable from tort law as private law requires proof of negligence and damages, but public law compensation is awarded for the breach of duty itself. The said remedy being availed through Article 32 by the Apex Court and Article 226 of the Constitution allow the parties to ensure justice enshrined by the Constitution for violation of fundamental rights.

28 The Human Rights Commission, under Chapter IV is empowered to inquire into the complaints of violation of human rights and in determining the liability, it may call for information or report from the Government or any other Authority or Organization subordinate thereto, within the time prescribed and if on receipt of such information or report the Commission is satisfied that no further inquiry is required, or that the required action must be initiated by the Government or the Authority, it may not proceed with the complaint, but if it considers to be necessary having regard to the nature of the complaint, it may initiate an inquiry. As per Section 18, the Commission is entitled to take various steps during or upon completion of the inquiry and where the inquiry discloses violation of human rights or negligence in prevention of violation of human rights or abatement thereof, by a public servant, it may recommend to the concerned Government or Authority to make payment of compensation or damages to the complainant or to the victim or to the members of his family as the Commission may consider necessary. The conjoint reading of Section 17 and 18, as a part of Chapter IV, highlighting the procedure to be adopted by the Commission, when it conduct inquiry into the complaint, it is noted that the Commission may call for the information and if it considers necessary, initiate an inquiry. The power conferred on the Commission upon initiating any inquiry into the complaint of violation of human rights, if result into disclosure of commission of violation of human rights or negligence in the prevention of violation of human rights, it is authorized to recommend the concerned Government or Authority to make payment of compensation or damages as the Commission may deem necessary.

29 A perusal of the impugned order passed by the Commission would reveal that the Commission has ordered payment of compensation based on its finding that the BMC has failed to take proper caution and care in maintaining the road in question which has resulted into violation of human rights. For this purpose, it has relied upon the observations of the High Court in Suo moto PIL, where the Court had taken judicial note of the poor condition of the roads in the city of Mumbai as well as the major cities in the State, alongwith the existence of potholes, poor surfacing of the roads and failure to level the roads, which was stated to be the cause for number of road accidents resulting into loss of lives or serious injuries to the members of public. By reproducing the observations from the decision and particularly as regards the statutory obligations vested in the Corporations including the BMC, in relation to the construction, maintenance, alteration and improvement of public streets, bridges, culverts, causeway etc. for ensuring safe and orderly passage of vehicular and pedestrians walking on streets, the High Court arrived at a conclusion that wherever there is any breach or lapse on part of the civic authority to maintain supervise public amenity such as proper roads it would amount to violation of Article 21 and the Commission inferred that the observations of the High Court would bring BMC within the clutches of violation of human rights as because of its failure, to maintain the roads in proper condition, the accident took place in which the victim sustained grievous head injury and is undergoing medical treatment. It is to be noted that the BMC controverted accusations levelled against it and contended that there was no negligence on its part, as there were no potholes/ditches on the road and in fact warning boards were displayed with proper barricades. However, the Commission referred to the police report (Exh. A) which according to it had fastened the liability on the Corporation and it also relied upon the report of the Dy. CHE (Roads) dated 16/04/2015 filed alongwith Exh. ‘B’ with a statement made in the report about the manner in which the maintenance of roads is supervised.

30 We have perused the reports placed before the Commission and we find that the Deputy Chief Engineer, (Road City), had disputed its liability as in the report it is stated that there were no potholes on the site and the work of improvement of Mahim Junction was being carried out only during night hours, but no such accident had taken place at that spot and the place where the accident had taken place was about 500 meters away from the worksite (Mahim Junction site) where no work was in progress. Apart from this, we have also perused the report forwarded to the Commission by the Deputy Commissioner, DCP, Zone V, and this Report also do not fix any liability or establish negligence, as alleged in the complaint and from the statement of PSI Girvale, it is inferred that the injured alongwith her husband was travelling on a scooter and since it was dark, the scooter slipped into a ditch and she sustained injury. However, the statement of the complainant who was driving the vehicle being recorded on 06/04/2015, disclose that because it was dark, he could not notice the pothole and his vehicle slipped and tumbled, but he did not express any grievance against anyone.

31 It is relevant to note that without establishing the commission of tort/civil wrong, the constitutional courts by invoking the public law remedy for violation of fundamental rights, have read the power of awarding compensation, on rendering a finding based on the surrounding circumstances placed before it leading to an inevitable conclusion that the State is responsible for the wrong and the victim deserve immediate relief has awarded compensation. However, it is only in certain classes of cases of torture and custodial deaths, it was held that the damages represented a solatium for mental pain, distress, indignity, loss of liberty and at times, death. The jurisprudential reasoning behind the award of damages in cases of violation of fundamental rights was elucidated in Nilabati Behera (supra), a landmark case in the development of law in this area, where it was held that Article 32 impose an obligation on the court ‘to forge such new tools as may be necessary for doing complete justice and enforcing fundamental rights’ and compensation under Article 32 or 226 was held to be a remedy available in public law, based on strict liability for the contravention of fundamental rights to which principle of sovereign immunity did not apply, even if it may be available as a defence in private law, in action for tort. In D.K. Basu (supra), the Supreme Court had reiterated that pecuniary compensation was an appropriate, effective and sometimes the only suitable remedy for redressal of fundamental rights violations and leaving the aggrieved to the mercy of remedy available in civil law would hamper the courts role as Protector and Custodian of citizen’s indefeasible rights.

32 Though the remedy of monetary compensation for violation of human rights was expounded through various authoritative pronouncements, the Courts had at the same time imposed limitations on its power to grant such relief. In several cases the courts have refused to exercise its writ jurisdiction in granting compensation when it involved disputed questions of fact and there is a clear denial of tortious liability by the State. In SPS Rathod vs. State of Haryana & Ors18, the Apex Court recorded that it can grant compensation only when there is prima facie or established violation of guaranteed fundamental right, but when the foundational fact itself is in dispute, the Court will desist from ordering compensation and the exercise of power for determining the compensation in glaring and clear cases of custodial rape or death or illegal detention of the poor and helpless, is not feasible in each and every case. In M.C. Mehta & Anr. v.s Union of India & Ors.19 the Supreme Court evolved another self imposed restriction being, that the power to award compensation for violation of fundamental rights, but limited this remedy to appropriate cases where infringement was gross and patent i.e. it is incontrovertible and ex-facie glaring and that the the violation must be of such magnitude as it would shock the conscience of the Court.

33 On perusal of the impugned order, we have noted that the Commission called for the reports and has justified its conclusion of negligence on part of the corporation in not maintaining the road in proper state, but according to us the reports do not lead to such an inference and since the inquiry conducted by the Commission is a fact finding inquiry, unless and until it lead a finding of negligence per say, in our view the Commission had exceeded its jurisdiction in directing the payment of compensation of Rs.10 lakhs to the complainant/ the victim by attributing negligence, though the finding of negligence is not based on any material placed before the Commission. It appear to us that the Commission was swayed by the observations of the High Court about bad conditions of the road, in the cities including Mumbai and the abject failure of the bodies like Corporation to maintain the roads, which was described by the

High Court to be violation of the rights of the citizens to have well laid and well maintained roads. The commission inferred violation of human rights of the complainant and his wife, but as per Section 18 of the Act, the inference of violation of human rights or negligence in its prevention or abatement thereof mut be outcome of the inquiry as contemplated under Section 17. The commission cannot and is not allowed to infer violation of human rights or negligence in its prevention, in absence of material being placed before it and definitely not by sitting in the chamber/office, such an inference can be drawn. If the Commission had called for reports to ascertain the factual situation and by looking at the reports, when no inference can be drawn about negligence of the Corporation, the member of the Commission has assumed the same and awarded compensation to the victim. No doubt the victim has suffered a grave injury and even today is suffering and definitely deserve our sympathy, but it must be kept in mind that award of compensation/damages does not come as a grace or a bounty, but when the court award the same, on establishing the fault/a liability by one enuring to the benefit of the victim, the necessary link must be established. We deem it appropriate to keep it open for respondent no.1 victim to approach the civil court by filing proceedings seeking compensation/damages on establishing the wrongful act on part of the Corporation, by leading appropriate evidence and the competent civil court testing the evidence establishing negligence/liability of the officials of the Corporation. If such proceedings are filed, the civil court is competent to deal with the same and we deem it appropriate to declare that the findings rendered by us while testing the order passed by the human rights commission shall not come in the way of the complainant or the victim in claiming adequate compensation or seeking damages.

34 In the wake of the aforesaid discussion, since the impugned order dated 19/01/2018 passed by the Member, Maharashtra State Human Rights Commission, is not sustainable for the reasons recorded above, the same is quashed and set aside. The Petition is made absolute in terms of prayer clause (a). (MANJUSHA DESHPANDE,J.) (BHARATI DANGRE, J.)