As a followup of the Calcutta High Court Judgment of August 7 against Bandh in Darjeeling, I am posting the second part of the Judgement dated August 14. Do let me know your views on the judgment.
7. August
14, 2013
W.P. 23617 (W) of 2013
The petitioner appears in person.
Mr. Asoke Kumar Banerjee,
Mr. Shyamal Sanyal,
Mr. Suman Sengupta,
…for the State.
Mr. Abhijit Basu,
…for the respondent no. 7.
We have heard the petitioner, who appears in
person, and Mr. Asoke Kumar Banerjee, learned
Government Pleader, and Mr. Abhijit Basu, learned
advocate appearing for the respondent no. 7, at length.
It is submitted by the learned advocate
appearing for the respondent no. 7 that initially the
bandh was called on July 29, 30 and 31, 2013 by his
client. The said bandh came to an end. Thereafter, some
other political parties had called for bandh in the form
of economic blockade of the hills on August 1 and 2,
2013, so that food and medicines could not reach the
different areas of the hills. Thereafter, the said bandh
was again continued with the support of the respondent
no. 7 by the people of the area from August 3 to 12,
2013.
It is further submitted on behalf of the
respondent no. 7 that the order of this court has been
received by the respondent no. 7 on August 12, 2013.
Thereafter, they have not given any call for bandh,
rather they have withdrawn it. Now, the people are not
able to come out from their houses due to heavy
deployment of police forces.
It is submitted on behalf of the State
respondents that food and medicines could not reach
different areas of the hills due to bandh.
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Pursuant to our order dated August 7, 2013, a
report has been submitted by the Secretary
(Coordination), Home Department, Government of West
Bengal, in court. The same is taken on record. The
learned advocate on record for the State respondents is
directed to furnish a copy of the report filed by them
upon the learned advocate appearing for the respondent
no. 7.
It is apparent from the report that lives of
common people are being affected due to illegal and
disruptive bandh. There is destruction of public
property and even the bungalow of the forest
department has been set at fire at Takdah and
Pokhriabong police outpost under Sukhia Pokhri Police
Station. The agitators also set fire to some documents
and furniture of a panchayet office under Lodhama
Police Station. They also obstructed roads in the district
and resorted to threat and intimidation on the local
people to enforce their bandh. A vehicle hired by NHPC
was also set to fire and a private taxi was burnt down
by the agitators in support of bandh on NH-31A.
It is further reported that Gorkha Janamukti
Morcha leaders are not refraining themselves from their
acts and they have now given a call for observing
Janata Curfew in the guise of bandh. The people in the
hill subdivisions of the district are being coerced and
intimidated for not coming out of their houses so as to
give an impression to outside world that it is a popular
movement. Now, the State Government is taking steps
to ensure there is free movement of the citizens and
goods by road and railway traffic and for such purpose
a good number of security forces have already been
deployed in the hill subdivisions.
It is, also, reported that there are obstructions
of road and destruction of public properties and as a
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result whereof till August 11, 2013, 47 criminal cases
have been registered against the perpetrators. In some
cases, the accused persons have also been arrested and
efforts are being to arrest the remaining accused
persons. A list of criminal cases registered till August
11, 2013 has been filed along with the report and in
connection with those cases, how many persons were
arrested have also been given.
It is reported that now NH 55 and NH 31A
have been opened to traffic and the State Government
is, also, trying to restore bus services in ensuring
normalcy in the hill subdivisions. Other steps are also
being taken to restore the essential services, which are,
now, reported to be normal. The people of hill
subdivisions are now being deterred from attending
their offices, opening their shops and establishments,
carrying out their normal business and from sending
their children to schools.
It is submitted by the learned Government
Pleader that by and large there is disruption of
education system in the hill subdivisions.
Mr. Abhijit Basu, learned advocate appearing
on behalf of the respondent no. 7, submits that one
school, namely, St. Pauls school is open.
We find that for quite substantial time, the
residents of hill areas have been deprived of getting
their essentials, like food, medicines, etc. Such bandh is
clearly illegal and violative of fundamental rights
including right to live of the residents of hilly areas.
They are entitled to get their basic amenities, like food
and medicines including education. Such essential
facilities cannot be disrupted by any kind of agitation.
In the circumstances, we feel that it is a fit
case where the court should determine the liability of
the persons, who should compensate the people, in
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general, of the area who have been deprived of getting
their food, medicines and other essential facilities. It
was submitted that some the incumbents could not be
able to sit in the examination of Public Service
Commission due to disruption of railway traffic and
blockade of roads.
The respondent no. 7 is directed to show
cause by way of an affidavit detailing out as to why it
should not be held liable to compensate for gross
violation of fundamental rights of the residents of hilly
areas, specifically the poorer who have been deprived of
their right to food, medicine and livelihood as a result of
the uninterrupted bandh for such a long period.
Call for bandh for a long period itself is not
conducive for dignified human living. Such call for
bandh had already been held by this court to be illegal.
It appears that there has been widespread
destruction of public and private properties, heavy loss
to State Exchequer on account of loss of working hours,
closure of offices, etc. due to the illegal bandh.
In Destruction of Public and Private
Properties, In Re vs. State of Andhra Pradesh & Ors.,
(2009) 5 SCC 212, the Apex Court held that the High
Court may take suo motu action for assessing the
awarding damages for destruction of public and private
properties on account of such illegal bandhs and laid
down the following guidelines:
“15. In the absence of legislation the following
guidelines are to be adopted to assess damages:
(I) Wherever a mass destruction on
property takes place due to protests
or thereof, the High Court may issue
suo motu action and set up a
machinery to investigate the damage
caused and to award compensation
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related thereto.
(II) Where there is more than one State
involved, such action may be taken
by the Supreme Court.
(III) In each case, the High Court or the
Supreme Court, as the case may be,
appoint a siting or retired High Court
Judges of a sitting or retired District
Judge as Claims Commissioner to
estimate the damages and investigate
liability.
(IV) An assessor may be appointed to
assist the Claims Commissioner.
(V) The Claims Commissioner and the
assessor may seek instructions from
the High Court or the Supreme Court
as the case may be, to summon the
existing video or other recordings
from private and public sources to
pinpoint the damage and establish
nexus with the perpetrators of the
damage.
(VI) The principles of absolute liability
shall apply once the nexus with the
event that precipitated the damage is
established.
(VII) The liability will be borne by the
actual perpetrators of the crime as
well as the organisers of the event
giving rise to the liability-to be
shared, as finally determined by the
High Court or the Supreme Court as
the case may be.
(VIII) Exemplary damages may be awarded
to an extent not greater than twice
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dns & ab
the amount of the damages liable to
be paid.
(IX) Damages shall be assessed for:
(a) damages to public property;
(b) damages to private property;
(c) damages causing injury or death to
a person or persons; and
(d) cost of the actions by the
authorities and police to take
preventive and other actions.
(X) The Claims Commissioner will make a report
to the High Court or the Supreme Court
which will determine the liability after hearing
the parties.”
Therefore, we direct the respondent no. 7 to
file an affidavit explaining as to why it should not be
asked to compensate, for the damage of public and
private properties and economic loss to the State due to
illegal bandh organized by them. We, also, direct the
State Government to detail out the loss of public and
private properties, loss of State exchequer by other
means, gross overall loss suffered by the State and the
people in general due to such bandh.
In case, we find that our order is violated by
adopting subterfuges and agitational programmes by
any other name, which has the effect of stoppage of
public life in the District of Darjeeling and other
adjoining areas, the same shall be viewed as violation of
our order. Though it is stated that bandh has been
withdrawn after receiving the order of this court on
August 12, 2013 and janata curfew, is continuing, in
our considered opinion, the same in peculiar facts of the
case is also in effect a call for bandh which is now for
over 15 days. No such call can be given that people
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should remain in their house and shall not come out at
all. This call should not have been resorted to as it has
the effect of disruption of all services including essential
services.
Let the requisite affidavit, be filed, as directed
hereinabove, by the next date of hearing.
We post the matter for hearing on September
5, 2013, with liberty to the parties to mention the
matter in case, any exigency arises in the meantime.
Xerox certified copy of this order, if applied
for, will be made available to the applicant on urgent
basis provided the requisites are put in.
( Joymalya Bagchi, J. ) (Arun Mishra, Chief Justice )
