1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3249 OF 2016

State of Gujarat and Another … Appellant(s)

Versus

The I.R.C.G. and Others …Respondent(s)

J U D G M E N T

Dipak Misra, CJI

The present appeal, by special leave, assails the

judgment and order dated 8

th

February, 2012, passed by the

High Court of Gujarat in Special Civil Application No. 3023 of

2003 with Civil Application No. 6115 of 2004.

2.The essential facts that need to be stated are that the

High Court was moved by way of a public interest litigation

seeking direction/order directing the State and its

functionaries to make detailed survey of the mosques,

dargahs, graveyards, khankahs and other religious places

and institutions desecrated, damaged and/or destroyed

2

during the period of communal riot in the State in the year

2002 under the supervision and guidance of the Court and to

immediately repair and restore the same within specified

time limit and further command the State Government to

suitably and adequately compensate the trusts and

institutions owning the said religious places. Various

assertions were made before the High Court. A counter

affidavit in oppugnation was filed by the State.

3. The High Court dwelling upon certain aspects

eventually issued number of directions. The relevant part of

the High Court order reads as follows:

“We, accordingly, pass direction upon the State

Government to give compensation in favour of the

persons in charge of all the religious places

including those of worship, which were damaged

during the communal riot of the year 2002 for

restoration to the original position, as those existed

on the date of destruction.

We find that during the long pendency of this

litigation, many of those places of worship have

been repaired. Nevertheless, the persons in charge

of those places would be entitled to get

reimbursement of the amount spent for restoration

of those places by production of evidence of

expenditure incurred by them for the above

purpose, as there is no waiver of fundamental

right. We, however, make it clear that if at the

time of repair, further additional construction has

been made in excess of the one existed at the time

of damage, for such additional construction, no

3

amount should be payable by the State

Government.”

4.After so stating, the High Court has appointed all the

Principal District Judges of the various districts in the State

and in the area under the jurisdiction of the City Civil Court,

the Principal Judge, City Civil Court as the Special Officers

for deciding the amount of compensation for the restoration

of those religious and places of worship situated within the

territorial limit of their respective court. After so directing,

the High Court further proceeded to state that the aggrieved

persons should lodge their respective claim with those

Special Officers within two months from the date of judgment

supported by the documentary evidence they propose to rely

in support of their claim of damages; and that apart, they will

be entitled to adduce oral evidence to prove the exact

position of the structure as it stood at the time of causing

damages. After so stating, the High Court directed as under:

“The State Government will also be entitled to give

written statement and oral and documentary

evidence in support of its defence. Such written

statement must be filed within one month from the

service of the claim-application. The learned

Special Officers on consideration of the entire

materials on record will decide the matters and fix

the amount of disbursement, if proved to have

been incurred by them. In the cases, where the

4

religious places including those of worship are still

lying in un-repaired condition or partly repaired

condition, the learned Special Officer will pass not

only the order of payment of the amount already

spent by them for such repair, but also pass

necessary order for repair or the balance amount

of repair, as the case may be, to be made by the

State Government.”

And again:-

“The final order should be passed by the learned

Special Officers within six months of lodging of the

claim and such decision should be sent to this

Court for confirmation within fifteen days of

passing decisions.

The State Government, it is needless to

mention, would be entitled to realize the amount to

be spent for such repair from the persons who

would be found actually guilty of destruction of

those religious places by the competent Criminal

Court in this regard.

We, keep this public interest litigation

pending for the scrutiny of the final decisions of

the learned Special Officers on compensation or

repair, as the case may be, on merit.”

5.When the matter travelled to this Court, the hearing

continued and on 30

th

July, 2012, the following order was

passed:

“Reliance is placed on sub-para 3 of the judgment

reported in 2009 (17) SCC 90 (Archbishop Raphael

Cheenath S.V.D. vs. State of Orissa and Another)

which is quoted hereunder:-

“The learned counsel appearing for the

petitioner stated that a large number of

5

churches have been demolished and the State

Government is giving meager amount by way

of compensation. Some churches and

religious places were in existence which are

being destroyed and the State Government is

not giving any compensation on the ground

that there is some dispute regarding the land.

The Government may formulate a scheme

regarding these religious places and take

appropriate decision.”

On the basis of this judgment, let the senior

counsel appearing for the State of Gujarat may

inform this Court whether the State is

contemplating any such schemes for repair or

renovation of the religious places affected by the

communal riots.”

6.On 27

th

August, 2013, the Court passed the following

order:

“Mr. Tushar Mehta, Sr. AAG appearing for the

State of Gujarat, submits that the scheme is under

preparation and the same would be filed within a

period of four weeks.

Put up on October 01, 2013.

Status quo shall be maintained for a period of

one month from today.”

7.In the course of hearing, the Union of India was made a

party, but, eventually, the arguments were advanced by the

learned senior counsel appearing for the State of Gujarat and

the learned senior counsel appearing for the respondents.

6

8.Mr. Tushar Mehta, learned senior counsel appearing for

the State of Gujarat has raised the following contentions:

(a)The State fund which consist payment of various taxes

by citizens cannot be directed by the High Court to be spent

for restoration/construction of any religious places by issu-

ing a writ under Article 226 of the Constitution of India, inas-

much as under the scheme of Articles 25, 26, 27 and 28 un-

der the heading “Right to Freedom of Religion”, the Constitu-

tion protects certain rights while prohibiting certain actions.

What is protected is right to profess, practice and propagate

religion; and what is prohibited is compelling any person to

pay any tax, proceeds of which is to be spent for the promo-

tion or maintenance of any particular religion or religious de-

nomination. Though right to profess, practice and propagate

religion is a Fundamental Right, the Court has conclusively

held that the said fundamental right to profess, practice and

propagate cannot and does not include to profess, practice or

propagate any religion from any particular place. For the

said purpose, inspiration has been drawn from the decisions

rendered in The Commissioner, Hindu Religious Endow -

ments, Madras v. Sri Lakshmindra Thirtha Swamiar of

7

Sri Shirur Mutt

1

and Dr. M. Ismail Faruqui and others v.

Union of India and others

2

.

(b)In cases of damage to properties (religious in the

present case but any other properties in general) an alleged

deprivation is of “Right to Property” which may give rise to a

civil cause of action for damages by aggrieved parties only.

In view of the deletion of “Right to Property” from Part III of

the Constitution of India as a fundamental right under the

43

rd

Constitutional Amendment and the same right being

only a Constitutional Right under Article 300A, the High

Court ought not have exercised its jurisdiction under Article

226 as a public law remedy for awarding compensation (for

an alleged breach of “Right to Property”, a non-fundamental

right) when in all decided cases the Court has confined juris-

diction of Constitutional Courts as “Public Law Remedy” only

in cases of breach/violation of fundamental right and that

too only the right Article 21 of the Constitution. In this re-

gard, learned senior counsel has commended us to Ra-

bindra Nath Ghosal v. University of Calcutta and oth -

ers

3

, Hindustan Paper Corpn. Ltd. v. Ananta Bhattachar -

1 AIR 1954 SC 282

2 (1994) 6 SCC 360

3 (2002) 7 SCC 478

8

jee and others

4

and Municipal Corporation of Delhi v. As-

sociation of Victims of Uphaar Tragedy and others

5

.

(c)Issue of any writ having the effect of use of tax-payers’

money for repair/restructuring/construction of any ‘religious

place’ would offend the sprit and object of Article 27 of the

Constitution. On a true, meaningful and purposive construc-

tion of Article 27, no writ, order or direction can be issued

having the direct or indirect effect of use of State funds for

repair/ restructuring/ construction of any religious places.

The term “of any particular religion” or “religious denomina-

tion” as used in Article 27 needs to be given wider interpreta-

tion so as to protect, preserve and give effect to the spirit of

Article 27. On a purposeful interpretation of Article 27, it be-

comes apparent that the funds of the State cannot be di -

rected to be used for ‘maintenance’ [which includes repair/

restructuring/ construction] of any religion (which essentially

includes religious places) or may be all the religions whether

individually or simultaneously. If such an interpretation is

not given, there can be situation where a State can declare a

portion of State fund to be used for maintenance of places of

4 (2004) 6 SCC 213

5 AIR 2012 SC 100

9

worship of all religions which will be in stark contrast to the

spirit and object of Article 27 in particular and that of Arti-

cles 25, 26, 27 and 28 in general. On a meaningful and pur-

posive construction of Article 27, even in such a case when

the State fund is directed by the High Court by way of a writ

for ‘maintenance’ of all religions [which term would necessar-

ily include repair/ restructuring/ construction of ‘places of

worship’], it would still be offending the secular fabric of the

Constitution and it would be violative of Article 27 in particu-

lar. In this regard, our attention has been invited to Arch R.

Everson v. Board of Education of the Township of Ew -

ing

6

.

(d)The High Court, in exercise of its constitutional writ ju-

risdiction under Article 226 of the Constitution of India can

grant compensation only when there is an “established”

breach of Article 21 of the Constitution. This Court has time

and again taken the view that remedy of writ as a ‘public law

remedy’ to award compensation is restricted to violation of

Article 21 of the Constitution only. If a constitutional court

finds some action to be violative of any other Fundamental

Rights; say an arbitrary action offending Article 14, curtail-

6 330 US 1

10

ment of Freedom of Speech and Expression under Article

19(1)(g), etc. the Constitutional Court will strike down such

action or will issue an injunctive writ. However, Constitu-

tional Court have so far never awarded damages for breach of

such Fundamental Rights other than the ones under Article

21; and Article 21 would not include “Right to Worship” by a

person following any religion from a particular place; there-

fore, alleged damage to any religious structure of any religion

would not fall within the sweep of violation of Article 21 of

Constitution. The High Court, therefore, ought not to have is-

sued an interim writ direction for quantification of ‘actual

damages’ to ‘places of worship.’ To bolster the said submis-

sion, reliance is placed on the decisions rendered in M.C.

Mehta and another v. Union of India and others

7

, Hin-

dustan Paper Corpn. Ltd. (supra) and Association of Vic-

tims of Uphaar Tragedy (supra).

(e)Award of compensation by constitutional courts is a

remedy in public law. The very genesis of the concept of

award of damages/compensation has its roots in the Law of

Torts. This Court has, therefore, consistently taken the view

that remedy of writ by a constitutional court to award com-

7 (1987) 1 SCC 395

11

pensation for breach of Fundamental Rights would be exer-

cised only when the “person aggrieved” comes before the con-

stitutional court and a stranger who has no enforceable right

against the State, cannot hold the brief on behalf of others

who have chosen not to approach the Court. It is submitted

that any organization, merely by making representations to

the State Government claiming to represent “aggrieved par-

ties” would not become “an aggrieved party” itself and

thereby acquire ‘locus standi’ to maintain a petition under

Article 226 of the Constitution. Learned counsel in order to

buttress the said submission, has commended us to Com-

mon Cause, A Registered Society v. Union of India and

others

8

.

(f)The High Court, under the impugned order, has virtu-

ally legislated by providing a separate “forum” through the

statutory civil remedy before a competent civil court does not

exist which has not been availed of by any “aggrieved person.

The jurisdiction exercised by the High Court, in the absence

of a vacuum, providing for enforcement of such right to re-

ceive compensation, the High Court could not have created a

forum since it has conferred adjudicating power in it in a dif-

8 (1999) 6 SCC 667

12

ferent way. In this regard, support has been drawn from P.

Ramachandra Rao v. State of Karnataka

9

, Common

Cause (A Registered Society) v. Union of India & others

10

and Pravasi Bhalai Sangathan v. Union of India & oth -

ers

11

. That apart, the High Court has directed computation of

actual compensation to “places of worship” and has created a

totally new remedy by the impugned judgment which is un -

known to law. The High Court has issued an interim direc-

tion for computation of actual damages to “places of worship”

to be made by “Special Officers” who are District Judges of

the District. Such direction is neither manageable, enforce-

able nor capable of execution as per law, for it is not known

as to what procedure such “Special Officers” are required to

follow, while seeking to adjudicate the quantum. It is diffi-

cult to fathom as to what is the remedy of any party ag -

grieved either by an interim order or final order of “Special

Officers” against such interim or final order. The order of

High Court is again incapable of enforcement since religious

places are only vaguely identified. Such religious places are

not shown to be under the administration of any recognized

9 (2002) 4 SCC 578

10 (2008) 5 SCC 511

11 (2014) 11 SCC 477

13

statutory body like a public trust, wakf or a society, etc.

When all people residing in the vicinity of such vaguely de-

scribed religious places are managing the religious places as

a community, there are bound to be multiple claimants who

would pray for compensation since the entire local commu-

nity might have contributed in the

repair/reconstruction/construction of the concerned places

of worship. There is no methodology as to in what manner

such inter se disputes amongst the claimants are to be adju-

dicated and/or appropriated. It is also not clear when the

believers of a particular religious place of worship have al-

ready restored the damaged place of worship [which has in

fact been done before many years], how the amount of com-

pensation would be appropriated amongst such believers

who have contributed without any claims.

(g)The statutory period of limitation for such affected per-

sons to otherwise approach the civil courts has already ex-

pired years back. However, the very same affected persons

[who never took recourse to any legal remedy] are now per-

mitted to approach the District Judges with a prayer to adju-

dicate their claims for compensation as a civil suit. The High

14

Court could not have, by issuing such interim writ, extended

the statutory period of limitation indirectly.

9.Mr. Y.H. Muchhala and Mr. Huzefa Ahmadi, learned se-

nior counsel appearing for the respondents have raised the

following contentions:

(a)Attack on religious places of worship is an attack on re-

ligious symbolism of people who hold them as sacred. De -

struction of places of worship belonging to weaker section of

the society by a dominant group is to inflict humiliation on

them and thereby violate Article 21 of the Constitution. If

the State fails to protect large scale destruction of places of

worship belonging to weaker or less dominant section of the

people it results in breach of Article 21 of the Constitution.

Article 14 enjoins on the State to give equal protection of

laws to all persons and, therefore, it is the fundamental obli-

gation of the State to protect religious places of worship be-

longing to every section of the people. This is one of the

facets of secularism. Therefore, there is a breach of Funda-

mental Right of the said sufferers. For the said purpose, they

have relied upon Dr. M. Ismail Faruqui (supra) and S.R.

Bommai and others v. Union of India and others

12

.

12 (1994) 3 SCC 1

15

(b)As it is obligatory on the part of the State to maintain

the law and order situation and there was a failure, the High

Court is justified in invoking the ‘public law remedy’ as such

negligence could invite the principle of concept of “Constitu-

tional tort”. That apart, the State Government has specifi-

cally accepted before the National Human Rights Commis -

sion (NHRC) that it would restore the places of worship which

have been damaged. Emphasis has been laid on various as-

pects of the reports of the NHRC. In view of the reports, it

was the obligation of the State Government to inform the

elected representatives of the people of the concerned legisla-

tures the reasons for non-acceptance of the NHRC reports.

In the absence of non-disclosure of reasons, the State be-

comes absolutely responsible for the damages caused and is

liable to pay the compensation.

(c)In the instant case, the petitioner before the High Court

had sought relief against the State Government and not

against any public official/Minister. The case is rested on

the breach of the fundamental rights of the persons whose

places of worship have been destructed because of the com-

prehensive failure of law and order in the State of Gujarat

16

during the crucial period for whatever reason and for which

the State Government is responsible. Such failure on the

part of the State Government amounts to violation in Public

Law. The Respondent’s claim is based in public law for com-

pensation for contravention of fundamental and human

rights. The Respondent’s right to claim such compensation

under Article 226 of the Constitution is a well settled law as

per the authority in Sanjay Gupta and others v. State of

Uttar Pradesh and others

13

.

(d)The plea of the State Government that to provide com-

pensation for destruction of places of worship is violative of

Article 27 is totally erroneous because in the first place no

person is compelled to pay any tax in the instant case. How-

ever, the relief is sought against the State Government to pay

compensation from the public exchequer. But the liability of

the State Government to compensate those who have suf -

fered by destruction of places of worship is not for the pro-

motion of maintenance of any particular religion or religious

denomination. The cause of action is based on the principle

that if the State has by its inability or for whatever reason

has failed to protect the fundamental rights or human rights

13 (2015) 5 SCC 283

17

then it has to compensate the aggrieved person for such vio-

lation. The compensation is appropriated for providing relief

for violation of human rights and not for the promotion of

maintenance of any particular religion or religious denomina-

tion and thereby the concept of secularism is not affected. In

this regard, heavy reliance is placed on the decisions of the

Kerala High Court in K. Reghunath v. State of Kerala and

another

14

, the Orissa High Court in Bira Kishore Mohanty

v. State of Orissa

15

and the Karnataka High Court in Pa-

panna and Etc. v. State of Karnataka and others

16

. The

directions issued by this Court in Archbishop Raphael

Cheenath S.V.D. v. State of Orissa and another

17

have

also been placed reliance upon to strengthen the said propo-

sition. The decision supports the principle that the incurring

of expenses for reconstruction and restoration of places of

worship damaged in violence would not be in violation of Ar-

ticle 27 of the Constitution of India.

(e) The argument that the High Court has created a forum

is without any substance because the State is entitled to con-

14 AIR 1974 Kerala 48

15 AIR 1975 Orissa 8

16 AIR 1983 Karnataka 94

17 (2009) 17 SCC 87 and 90

18

tend before the District Judge that a particular place of wor-

ship was/is unauthorized and the District Judge will con-

sider such plea and report to the High Court. That apart, the

High Court in its extraordinary jurisdiction has basically

called for a report from the District Judge after adjudication

when the High Court can wait because it has not finally dis-

posed of the writ petition.

(f) It is the fundamental obligation of the State to protect the

places of worship which is the facet of secularism and also

covered by Article 14 of the Constitution. When there is fail-

ure, the State is liable to pay the damages for the same.

There cannot be distinction in law between damage done to

the collective property of the community and to an individ-

ual. The basis for awarding compensation for destruction to

an individual’s property or the community’s property is on

the principle that the State has failed to fulfill its fundamen-

tal constitutional obligation.

(g)Articles 14, 21, 25 and 26 of the Constitution have to be

woven together and they cannot be compartmentalized in a

strait-jacket manner. It is an established principle of Consti-

tutional law that the fundamental rights cannot be compart-

19

mentalized because one fundamental right draws sustenance

from the other fundamental rights as well. In this regard,

strength has been drawn from Rustom Cowasjee Cooper v.

Union of India

18

.

(h) The relief scheme framed by the High Court is in conso-

nance with the guidelines laid down by this Court in De-

struction of Public and Private Properties, In Re v. State

of Andhra Pradesh and others

19

. Similar schemes were

framed in Ranganathan and another v. Union of India

and others

20

, Ranganathan and another v. Union of In -

dia and others

21

and Association of Victims of Uphaar

Tragedy (supra). Guidelines are laid by the Court as there is

no law for compensation for such losses and the same are

laid down to deal with exigencies till the law for the same is

framed. Reliance has been placed on the principles set out

in Destruction of Public and Private Properties, In Re

(supra).

(i) As there had been failure of law and order situation at the

relevant time it becomes the constitutional obligation of the

18 (1970) 2 SCC 298

19 (2009) 5 SCC 212

20 (1999) 6 SCC 26

21 (2004) 9 SCC 579

20

State to compensate the victims and also to reimburse the

organizations where repairing work had been carried out or

restructuring had been done or, if not done, to do it. The

obligation to protect the rights of the minorities is the facet of

law, right guarantee under the Constitution and also a part

of the international conventions.

10.Having noted the submissions, it is necessary to clear

the maze. The assertions in the public interest litigation be-

fore the High Court did not project the case of any individual.

To explicate, it was not a case for grant of compensation for

any individual injury or damage. Fundamentally, the writ

petition was preferred for issue of direction for seeking repair

and restoration of mosques, dargahs, graveyards, khankahs

and other religious places damaged during the riot in 2002.

Therefore, we do not intend to use the expression “victim” in

our analysis. It is worthy to note that the High Court had

also taken note of the fact that the reports submitted by the

NHRC on the incident were not laid before the State Legisla-

ture and hence, there was violation of Section 20 of the Pro-

tection of Human Rights Act, 1993. Similar stand has been

21

taken before this Court. In the course of hearing, the reports

submitted by NHRC were laid before the State Legislature.

11.The thrust of the matter is whether in such a situation,

the State would be obligated to compensate the institutions

or bodies that look after the religious places which were dam-

aged by restoring to their original position or granting reim-

bursement of the amount to the people who have done the

same.

12.In this regard, some of the authorities that have been

commended to us require to be looked at. We may immedi -

ately clarify that the learned senior counsel appearing for the

respondents has copiously referred to us to various interna-

tional conventions, the opinions of statutes of International

Criminal Tribunal of other countries and also judgments of

European Court of Human Rights. As far as present lis is

concerned, we are of the considered opinion that the same

are not relevant. We think it appropriate to refer to the au-

thorities of this Court which have expressed this view to a

certain extent pertaining to the religious rights.

13.Mr. Mehta, learned senior counsel appearing for the

State would contend that the respondents cannot claim as a

22

matter of right as the State is not bound to spend any

amount for restoration of the place of worship. Mr. Much-

hala, learned senior counsel for the respondents, per contra,

would contend that when damage is caused to the places of

worship of a minority, the right of the said group or stream is

affected and that right would come within Articles 25 and 26

of the Constitution of India.

14.Articles 25 and 26 read as under:

“Article 25. Freedom of conscience and free

profession, practice and propagation of religion.—

(1) Subject to public order, morality and health and

to the other provisions of this Part, all persons are

equally entitled to freedom of conscience and the

right freely to profess, practise and propagate religion

(2) Nothing in this article shall affect the operation of

any existing law or prevent the State from making

any law―

(a) regulating or restricting any economic,

financial, political or other secular activity which

may be associated with religious practice;

(b) providing for social welfare and reform or the

throwing open of Hindu religious institutions of a

public character to all classes and sections of

Hindus.

Explanation I.―The wearing and carrying of kirpans

shall be deemed to be included in the profession of

the Sikh religion.

Explanation II.―In sub-clause (b) of clause (2),

reference to Hindus shall be construed as including a

reference to persons professing the Sikh, Jaina or

Buddhist religion, and the reference to Hindu

23

religious institutions shall be construed accordingly.

Article 26. Freedom to manage religious affairs.—

Subject to public order, morality and health, every

religious denomination or any section thereof shall

have the right―

(a) to establish and maintain institutions for religious

and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable

property; and

(d) to administer such property in accordance with

law.”

15.The submission is that the fundamental rights cannot

be compartmentalized as one draws sustenance from the

other. In essence, the argument is that strait-jacket compart-

mentalization is impermissible and when there is violation of

human rights of a class, that is, minority (because of damage

caused to the places of worship), the rights in a cluster

spring up to action.

16.In The Commissioner, Hindu Religious Endowments,

Madras (supra), the Constitution Bench, while dealing with

Articles 25 and 26, held:

“22.It is to be noted that both in the American as

well as in the Australian Constitutions the right to

freedom of religion has been declared in unre -

stricted terms without any limitation whatsoever.

Limitations, therefore, have been introduced by

courts of law in these countries on grounds of

24

morality, order and social protection. An adjustment

of the competing demands of the interests of Gov-

ernment and constitutional liberties is always a del-

icate and difficult task and that is why we find dif-

ference of judicial opinion to such an extent in

cases decided by the American courts where ques-

tions of religious freedom were involved.

Our Constitution-makers, however, have embod-

ied the limitations which have been evolved by judi-

cial pronouncements in America or Australia in the

Constitution itself and the language of Articles 25

and 26 is sufficiently clear to enable us to determine

without the aid of foreign authorities as to what

matters come within the purview of religion and

what do not. As we have already indicated, freedom

of religion in our Constitution is not confined to reli-

gious beliefs only; it extends to religious practices as

well subject to the restrictions which the Constitu-

tion itself has laid down. Under Article 26(b), there-

fore, a religious denomination or organization enjoys

complete autonomy in the matter of deciding as to

what rites and ceremonies are essential according to

the tenets of the religion they hold and no outside

authority has any jurisdiction to interfere with their

decision in such matters.”

17.In S.R. Bommai (supra), Sawant, J. opined:

“… religious tolerance and equal treatment of all

religious groups and protection of their life and

property and of the places of their worship are an

essential part of secularism enshrined in our

Constitution. We have accepted the said goal not

only because it is our historical legacy and a need

of our national unity and integrity but also as a

creed of universal brotherhood and humanism. It is

our cardinal faith. Any profession and action which

go counter to the aforesaid creed are a prima facie

proof of the conduct in defiance of the provisions of

our Constitution.”

25

18.In the said case, B.P. Jeevan Reddy, J. observed:

“While the citizens of this country are free to

profess, practice and propagate such religion, faith

or belief as they choose, so far as the State is

concerned, i.e., from the point of view of the State,

the religion, faith or belief of a person is immaterial.

To it, all are equal and all are entitled to be treated

equally….”

19.Ahmadi, J. (as His Lordship then was), concurring with

the views of Justice Sawant, Ramaswamy and Jeevan Reddy,

JJ., held:

“Notwithstanding the fact that the words ‘Socialist’

and ‘Secular’ were added in the Preamble of the

Constitution in 1976 by the 42nd Amendment, the

concept of Secularism was very much embedded in

our constitutional philosophy. The term ‘Secular’

has advisedly not been defined presumably because

it is a very elastic term not capable of a precise defi-

nition and perhaps best left undefined. By this

amendment what was implicit was made explicit.”

20.In Dr. M. Ismail Faruqui (supra), after referring to the

authority in S.R. Bommai (supra), the Constitution Bench

held:

“The Preamble of the Constitution read in particular

with Articles 25 to 28 emphasises this aspect and

indicates that it is in this manner the concept of

secularism embodied in the constitutional scheme

as a creed adopted by the Indian people has to be

understood while examining the constitutional va-

lidity of any legislation on the touchstone of the

26

Constitution. The concept of secularism is one facet

of the right to equality woven as the central golden

thread in the fabric depicting the pattern of the

scheme in our Constitution.”

21.The aforesaid authorities clearly enunciate that as far

as State is concerned, it is obliged under the Constitution to

treat persons belonging to all faiths and religions with equal-

ity. The individual has his freedom to practice the religion as

he desires and it is totally immaterial from the perspective of

the State. The protection of property and places of worship is

an essential part of secularism. The freedom of individual in

this regard has to be respected and there has to be tolerance

for each other. This principle has been accepted in the con-

stitutional scheme keeping in view the concrete sustenance

of national unity and integrity.

22.Having said so, we are required to examine the liability

of the State to repair or restore the places of worship which

are damaged by the mob during the riot. There is no dispute

that the places of worship belonging to all religions have been

damaged and affected. Be it clarified, though the learned se-

nior counsel appearing for the respondents laid immense

stress on the failure of law and order situation and non-exis-

tence of the active role of the executive to curtail the disaster,

27

we need not dwell upon the same inasmuch as there had

been mob fury and places of worship at certain places have

been damaged. Learned senior counsel for the appellants

submits that the State cannot be commanded to repair or re-

store any place of worship as such an act on the part of the

State will create a dent in the secular fabric and further the

expenditure from the State exchequer is impermissible in

view of the language employed in the Article 27 of the Con-

stitution.

23.Before dwelling upon Article 27, we may profitably refer

to certain aspects that have been highlighted in Destruction

of Public and Private Properties, In Re (supra). In the said

case the two-Judge Bench, taking a serious note of various

instances of large-scale destruction of public and private

properties in the name of agitations, bandhs, hartals and the

like, had initiated suo motu proceedings. It had called for re-

ports from two committees - one headed by Justice K.T.

Thomas and the other by Mr. F.S. Nariman, a senior member

of the legal profession. It has referred to the recommenda-

tions of the Committee headed by Justice K.T. Thomas and

also that of F.S. Nariman Committee. Summarizing the basic

28

principles as suggested by Nariman Committee, the Court

enumerated the same:

(1) The basic principle for measure of damages in

torts (i.e. wrongs) in property is that there should be

“restitutio in integrum” which conveys the idea of

“making whole”.

(2) Where any injury to property is to be

compensated by damages, in settling the sum of

money to be given for reparation by way of damages

the Court should as nearly as possible get at that

sum of money which will put the party who has

suffered, in the same position as he would have

been in if he had not sustained the wrong for which

he is now getting his compensation or reparation.

(3) In this branch of the law, the principle of

restitutio in integrum has been described as the

“dominant” rule of law. Subsidiary rules can only be

justified if they give effect to that rule.

(3.1) In actions in tort where damages are at large

i.e. not limited to the pecuniary loss that can be

specifically proved, the Court may also take into

account the defendant’s motives, conduct and

manner of committing the tort, and where these

have aggravated the plaintiff’s damage e.g. by

injuring his proper feelings of dignity, safety and

pride—aggravated damages may be awarded.

Aggravated damages are designed to compensate

the plaintiff for his wounded feelings, they must be

distinguished from exemplary damages which are

punitive in nature and which (under English Law)

may be awarded in a limited category of cases.

(3.2) “Exemplary damages” has been a controversial

topic for many years. Such damages are not

compensatory but are awarded to punish the

29

defendant and to deter him and others from similar

behaviour in the future. The law in England (as

restated in Rookes v. Barnard

22

affirmed in Cassell

& Co. Ltd. v. Broome

23

) is that such damages are not

generally allowed. In England they can only be

awarded in three classes of cases (i) where there is

oppressive, arbitrary or unconstitutional action by

servants of the Government; (ii) where the

defendant’s conduct has been calculated by him to

make a profit for himself which may well exceed the

compensation payable to the claimant; and (iii)

where such damages are provided by statute.

(3.3) In the decision in Kuddus v. Chief Constable of

Leicestershire Constabulary

24

, the most recent

judgment of the House of Lords, the Law Lords did

not say that in the future the award of exemplary

damages should be restricted only in the cases

mentioned in Rookes v. Barnard (as affirmed in

Cassell & Co. Ltd. v. Broome). Lord Nicholls in his

speech at p. 211 stated that: (Kuddus case, WLR p.

1807, para 68)

“68. … the essence of the conduct

constituting the court’s discretionary

jurisdiction to award exemplary damages

is conduct which was an outrageous

disregard of the plaintiff’s rights.”

(3.4) In this Committee’s view, the principle that

courts in India are not limited in the law of torts

merely to what English Courts say or do, is

attracted to the present situation. This Committee is

of the view that this Hon’ble Court should evolve a

principle of liability, punitive in nature, on account

of vandalism and rioting leading to

damages/destruction of property public and private.

Damages must also be such as would deter people

22 1964 AC 1129: (1964) 2 WLR 269: (1964) 1 ALL ER 367 (HL)

23 1972 AC 1027: (1972) 2 WLR 645: (1972) 1 ALL ER 801 (HL)

24 (2002) 2 AC 122: (2001) 2 WLR 1789: (2001) 3 ALL ER 193: 2001 UKHL 29

(HL)

30

from similar behaviour in the future, after all this is

already the policy of the law as stated in the

Prevention of Damage to Property Act, 1984, and is

foreshadowed in the order of this Hon’ble Court

dated 18-6-2007 making the present reference.

(3.5) In Winfield and Jolowicz on Tort, 17th Edn. (at

pp. 948-49) the authors set out the future of

exemplary damages by quoting from the decision in

Kuddus v. Chief Constable of Leicestershire

Constabulary where two Law Lords, Lord Nicholls

and Lord Hutton expressed the view that such

damages might have a valuable role to play in

dealing with outrageous behaviour. The authors

point out that the boundaries between the civil and

criminal law are not rigid or immutable and the

criminal process alone is not an adequate

mechanism to deter wilful wrongdoing. The

acceptability of the principle of compensation with

punishment appears to have been confirmed by the

Privy Council (in Gleaner Co. Ltd. v. Abrahams

25

AC

at 54) where it was felicitously said that: (AC p. 647,

para 54)

“54. … Oil and vinegar may not mix in

solution but they combine to make an

acceptable salad dressing.”

(3.6) The authors go on to say that exemplary

damages certainly enjoy a continuing vitality in

other common law jurisdictions, which, by and

large, have rejected the various shackles imposed

on them in England and extended them to other

situations, thus punitive damages were held to be

available in Australia in cases of “outrageous” acts

of negligence. The Law Commission of Australia has

also concluded, after a fairly evenly balanced

consultation, that exemplary damages should be

retained where the defendant “had deliberately and

outrageously disregarded the plaintiff’s rights”.

25 (2004) 1 AC 268: (2003) 3 WLR 1038 (PC)

31

24.The Court also referred to in detail to Justice K.T.

Thomas Committee which basically dealt with law and order

and tort. After approving the reports of the Committee, the

Court took note of the absence of legislation and framed the

following guidelines:

“(I) Wherever a mass destruction to 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 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 sitting or

retired High Court Judge or a sitting or retired

District Judge as a 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 the amount of the

32

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.”

After so stating, the Court directed that the guidelines

shall be operative.

25.In this regard, reference to the authority in Sanjay

Gupta (supra) would be fruitful. The factual matrix in the

said case pertains to Meerut Fire Tragedy where sixty-four

people had died. While dealing with the grant of interim

compensation, the Court held:

“Having so opined, we cannot comatose our judicial

conscience to the plight of the victims who have

approached this Court. Some of the petitioners are

themselves the victims or next kin of the deceased

and the injured persons who have suffered because

of this unfortunate man-made tragedy. It is the

admitted position that 64 deaths have occurred and

a number of persons have suffered grievous

injuries. There are also persons who have suffered

simple injuries as has been asserted by the State.

We have been apprised at the Bar that the State

Government has already paid Rs 2 lakhs to the legal

representatives of the persons who have breathed

their last, and a sum of rupees one lakh has been

paid by the Central Government. As far as seriously

33

injured persons are concerned, rupees one lakh has

been paid by the State Government and Rs 50,000

has been paid to the victims who have suffered

simple injuries.

The question that we would like to pose is whether

this Court should wait for the Commission’s report

and then direct the State Government to pay the

amount of compensation to the grieved and affected

persons, who have been waiting for the last eight

years, or should they get certain sum till the matter

is finalised. We will be failing in our duty if we do

not take into consideration the submission of Mr.

Shanti Bhushan, learned Senior Counsel, that as

far as Respondents 10 to 12 are concerned, no

liability can be fastened under Article 32 of the

Constitution of India, and definitely not at this

stage. As far as first part of the submission is

concerned, we keep it open to be dealt with after the

report is obtained by this Court. As far as the

second aspect is concerned, we shall deal with it

after we address the issue of public law remedy and

the liability of the State in a case of this nature.”

26.In Association of Victims of Uphaar Tragedy (supra),

Radhakrishnan, J., in his concurring opinion, opined:

“ … Right to life guaranteed under Article 21 of the

Constitution of India is the most sacred right

preserved and protected under the Constitution,

violation of which is always actionable and there is

no necessity of statutory provision as such for

preserving that right. Article 21 of the Constitution

of India has to be read into all public safety

statutes, since the prime object of public safety

legislation is to protect the individual and to

compensate him for the loss suffered. Duty of care

expected from State or its officials functioning under

the public safety legislation is, therefore, very high,

compared to the statutory powers and supervision

34

expected from the officers functioning under the

statutes like Companies Act, Cooperative Societies

Act and such similar legislations. When we look at

the various provisions of the Cinematographic Act,

1952 and the Rules made thereunder, the Delhi

Building Regulations and the Electricity laws the

duty of care on officials was high and liabilities

strict.

** *

Legal liability in damages exist solely as a remedy

out of private law action in tort which is generally

time-consuming and expensive, and hence when

fundamental rights are violated the claimants prefer

to approach constitutional courts for speedy

remedy. The constitutional courts, of course, shall

invoke its jurisdiction only in extraordinary

circumstances when serious injury has been caused

due to violation of fundamental rights, especially

under Article 21 of the Constitution of India. In

such circumstances the Court can invoke its own

methods depending upon the facts and

circumstances of each case.”

27.The purpose of referring to the aforesaid authorities is

that the learned senior counsel has canvassed that the

benefit under the public law remedy is available to the bodies

or institutions that look after the religious places of worship

of each and every religion. The hypothesis that is canvassed

is that the damage caused affects the dignity of that

particular community or a group. The stand of the State is

that keeping in view the concept of secularism and the role of

the State, it is inappropriate to direct the State to spend the

35

amount from the State exchequer for these purposes. In this

context, as stated earlier, Article 27 becomes relevant.

28.In Hindustan Paper Corpn. Ltd. (supra), the Court was

considering whether the High Court in exercise of its

jurisdiction under Article 226 of the Constitution of India

could have directed payment of interest by way of

compensation. The issue before the Court pertained to an

order by which the Division Bench of the Calcutta High Court

directed the appellant before this Court to refund the amount

advanced to it with 12% per annum interest to the

respondents. The factual matrix in the said case was that the

Ministry of Human Resource Development, Department of

Education, Government of India floated a scheme purported to

be for securing equitable distribution of white printing paper.

The said scheme had certain relevant features. Pursuant to

the scheme, the respondents allegedly placed orders for supply

of white paper upon the appellant therein which the appellant

Corporation could not supply. The learned single Judge by

ex parte order had directed the Corporation to take immediate

steps for release of white concessional paper to the

respondents wherefor allegedly the advance money had

36

already been accept by them. The application for recall was

dismissed. In appeal, the Division Bench noted the contention

of the appellant and took into account that the appellant had

already refunded the large amount to the allotees without any

interest subsequent to the discontinuation of the scheme.

However, it held that by such act it could not absolve the

Corporation from the liability to compensate the respondents

in cash if not in kind in consideration of their default and

accordingly it directed for payment of interest at 12% per

annum. The three-Judge Bench observed that the scheme in

question did not have the force of law and even if it did, a writ

of mandamus could not have been issued by directing grant of

compensation. In that context, the Court ruled:

“… Public law remedy for the purpose of grant of

compensation can be resorted to only when the fun-

damental right of a citizen under Article 21 of the

Constitution is violated and not otherwise. It is not

every violation of the provisions of the Constitution

or a statute which would enable the court to direct

grant of compensation. The power of the court of ju-

dicial review to grant compensation in public law

remedy is limited. The instant case is not one which

would attract invocation of the said rule. It is not

the case of the respondents herein that by reason of

acts of commission and omission on the part of the

appellant herein the fundamental right of the re-

spondents under Article 21 of the Constitution has

been violated.”

37

29.On a perusal of the judgment in its entirety, we find the

case hinges on its own facts regarding grant of compensation.

The power of the court of judicial review to grant

compensation in public law is limited. There cannot be any

quarrel about the said proposition of law.

30.In Rabindra Nath Ghosal (supra), the assail was to the

order of the learned single Judge whereby he had directed the

University of Calcutta to pay to the appellant before him Rs.

60,000/- as monetary compensation and damages. The

Division Bench overturned the same by holding that in the

facts of the case compensation should have been awarded but

the proper course should have been to leave the parties to

agitate their grievances before the civil court. This Court

referred to the decision in Common Cause, A Registered

Society

26

and adverted to the concept of public law remedy

and opined:

“A claim in public law for compensation for contra-

vention of human rights and fundamental freedoms,

the protection of which is guaranteed in the Consti-

tution is undoubtedly an acknowledged remedy for

protection and enforcement of such right and such

a claim based on strict liability made by resorting to

a constitutional remedy, provided for the enforce-

ment of fundamental right is distinct from, and in

26 (1996) 6 SCC 667

38

addition to the remedy in private law for damages

for the tort, as was held by this Court in Nilabati Be-

hera

27

.”

And again:

“The courts having the obligation to satisfy the so-

cial aspiration of the citizens have to apply the tool

and grant compensation as damages in public law

proceedings. Consequently when the court moulds

the relief in proceedings under Articles 32 and 226

of the Constitution seeking enforcement or protec-

tion of fundamental rights and grants compensa -

tion, it does so under the public law by way of pe-

nalising the wrongdoer and fixing the liability for the

public wrong on the State which has failed in its

public duty to protect the fundamental rights of the

citizens. But it would not be correct to assume that

every minor infraction of public duty by every public

officer would commend the court to grant compen-

sation in a petition under Articles 226 and 32 by

applying the principle of public law proceeding. The

court in exercise of extraordinary power under Arti-

cles 226 and 32 of the Constitution, therefore,

would not award damages against public authorities

merely because they have made some order which

turns out to be ultra vires, or there has been some

inaction in the performance of the duties unless

there is malice or conscious abuse. Before exem-

plary damages can be awarded it must be shown

that some fundamental right under Article 21 has

been infringed by arbitrary or capricious action on

the part of the public functionaries and that the

sufferer was a helpless victim of that act.”

31.Mr. Mehta, learned senior counsel appearing for the

appellants has pressed hard on the said passage. According

to him in a case of the present nature, the High Court could

27 (1993) 2 SCC 746

39

have not in exercise of jurisdiction under Article 226 of the

Constitution constituted a forum for grant of compensation

and directing reimbursement. Learned senior counsel further

submitted that violation of fundamental right under Article

21 is different than what has been averred in the writ filed

before the High Court inasmuch as the gravamen of whole

issue pertained to grant of damages caused to the places of

worship.

32.Article 27 of the Constitution reads as follows:

“Article 27.──Freedom as to payment of taxes for

promotion of any particular religion.─No person

shall be compelled to pay any taxes, the proceeds of

which are specifically appropriated in payment of ex-

penses for the promotion or maintenance of any par-

ticular religion or religions denomination.”

33.In The Commissioner, Hindu Religious Endowments,

Madras (supra), the Court, while commenting on Article 27,

held thus:

“What is forbidden by the article is the specific

appropriation of the proceeds of any tax in

payment of expenses for the promotion or

maintenance of any particular religion or religious

denomination. The reason underlying this

provision is obvious. Ours being a secular State

and there being freedom of religion guaranteed by

the Constitution, both to individuals and to

groups, it is against the policy of the Constitution

to pay out of public funds any money for the

promotion or maintenance of any particular

40

religion or religious denomination. But the object

of the contribution under Section 76 of the Madras

Act is not the fostering or preservation of the

Hindu religion or any denomination within it. The

purpose is to see that religious trusts and

institutions, wherever they exist, are properly

administered. It is a secular administration of the

religious institution that the legislature seeks to

control and the object, as enunciated in the Act, is

to ensure that the endowments attached to the

religious institutions are properly administered

and their income is duly appropriated for the

purposes for which they were founded or exist.

There is no question of favouring any particular

religion or religious denomination in such cases.

In our opinion, Article 27 of the Constitution is not

attracted to the facts of the present case.”

34.In Prafull Goradia v. Union of India

28

, the Court,

while interpreting Article 27, referred to the decisions in The

Commissioner, Hindu Religious Endowments, Madras

(supra), Sri Jagannath Ramanuj Das and another v.

State of Orissa and another

29

and also alluded to T.M.A.

Pai Foundation and others v. State of Karnataka and

others

30

and opined that the said decisions did not really

deal with Article 27 at any depth. Elaborating further, the

two-Judge Bench held:

“6. There can be two views about Article 27. One

view can be that Article 27 is attracted only when

the statute by which the tax is levied specifically

28 (2011) 2 SCC 568

29 AIR 1954 SC 400

30 (2002) 8 SCC 481

41

states that the proceeds of the tax will be utilised

for a particular religion. The other view can be

that Article 27 will be attracted even when the

statute is a general statute, like the Income Tax

Act or the Central Excise Act or the State Sales

Tax Acts (which do not specify for what purpose

the proceeds will be utilised) provided that a sub-

stantial part of such proceeds are in fact utilised

for a particular religion. In our opinion Article 27

will be attracted in both these eventualities. This

is because Article 27 is a provision in the Consti-

tution, and not an ordinary statute. The princi-

ples of interpreting the Constitution are to some

extent different from those of interpreting an or-

dinary statute vide the judgment of Hon’ble Sikri,

J. in Kesavananda Bharati v. State of Kerala

31

(vide SCC para 15). The object of Article 27 is to

maintain secularism, and hence we must con -

strue it from that angle.

7. As Lord Wright observed in James v. Com-

monwealth of Australia

32

, a Constitution is not to

be interpreted in a narrow or pedantic manner

(followed in Central Provinces and Berar Sales of

Motor Spirit and Lubricants Taxation Act, 1938,

In re

33

). This is because a Constitution is a con-

stituent or organic statute, vide British Coal

Corpn. v. R.

34

and Kesavananda Bharati v. State of

Kerala (supra) (vide SCC para 506). While a

statute must ordinarily be construed as on the

day it was enacted, a Constitution cannot be con-

strued in that manner, for it is intended to en-

dure for ages to come, as Marshal, C.J. of the US

Supreme Court observed in M’Culloch v. Mary-

land

35

, and Holmes, J. in Missouri v. Holland

36

.

Hence a strict construction cannot be given to it.

8. In our opinion Article 27 would be violated if

a substantial part of the entire income tax col-

31 (1973) 4 SCC 225

32 1936 AC 578 : (1936) 2 ALL ER 1449 (PC)

33 AIR 1939 FC 1

34 AIR 1935 PC 158

35 4 L Ed 579 : 17 US 316 (1819)

36 64 L Ed 641 : 252 US 416 (1919)

42

lected in India, or a substantial part of the entire

central excise or the customs duties or sales tax,

or a substantial part of any other tax collected in

India, were to be utilised for promotion or main-

tenance of any particular religion or religious de-

nomination. In other words, suppose 25% of the

entire income tax collected in India was utilised

for promoting or maintaining any particular reli-

gion or religious denomination, that, in our opin-

ion, would be violative of Article 27 of the Consti-

tution.

x x x x x

10. In our opinion, if only a relatively small

part of any tax collected is utilised for providing

some conveniences or facilities or concessions to

any religious denomination, that would not be vi-

olative of Article 27 of the Constitution. It is only

when a substantial part of the tax is utilised for

any particular religion that Article 27 would be

violated.”

Be it stated, in the said case the Court was dealing with

the constitutional validity of the Haj Committee Act, 1959

and the Amendment Act of 2002 on the foundation that the

said Act is violative of Articles 14, 15 and 27 of the Constitu-

tion.

35.In this regard, as stated earlier, the learned senior

counsel for the respondent has commended us to the deci -

sions of the Kerala High Court in K. Reghunath (supra), the

Orissa High Court in Bira Kishore Mohanty (supra) and the

43

Karnataka High Court in Papanna (supra). As we have al-

ready copiously reproduced few decisions pertaining to Arti-

cle 27, there is no necessity to refer to the High Court judg-

ments.

36.Having referred to these decisions, it is obligatory to re-

fer in detail to the order passed in Archbishop Raphael

Cheenath S.V.D. v. State of Orissa and another

37

. The

said authority has already been referred to in the order of the

Court passed on 30.07.2012. In Archbishop Raphael

Cheenath S.V.D. v. State of Orissa and another

38

, the

Court, while dealing with the attack on the churches and

public institutions, directed as follows:

“7.The State is also agreed to give compensation

to the victims. It is stated in the affidavit of the

State that Rs. 50,000 is being given for the fully

damaged house, Rs. 25,000 for partly damaged

house and Rs. 2 lakh each is being given to the

damaged public institutions like schools, hospi-

tals, etc. and Rs. 2 lakh each from the Chief Min-

ister’s Relief Fund to each of the families of the

persons killed in the violence.

x x x x

10.We are told by the counsel for the petitioner

that approximately 16 churches have been fully or

partly damaged. As regards the damaged

churches also the State can have a generous atti-

tude on the matter and assess the damage of

37 (2009) 17 SCC 90

38 (2009) 17 SCC 87

44

those churches or other religious places and ren-

der reasonable help to rebuild the same. We hope

that the State would create an atmosphere where

there shall be complete harmony between the

groups of people and the State shall endeavour to

have discussions with the various groups and

bring about peace and do all possible help to the

victims. The existing battalions/police force sent

by the Government of India would continue till the

end of December 2008.”

[emphasis supplied]

37.It is worthy to note that vide order dated 30.07.2012 the

Court had reproduced the passage from Archbishop

Raphael Cheenath S.V.D. v. State of Orissa and an -

other

39

and required the learned counsel for the State of Gu-

jarat to inform the Court whether the State is contemplating

any such scheme for repair or renovation of the religious

places affected by the communal riots.

38.It is necessary to mention that in pursuance of the

aforesaid order, a scheme has been framed by the State of

Gujarat. The said scheme reads as under:

“GOVERNMENT OF GUJARAT

REVENUE DEPARTMENT

Resolution No. RHL/102012/SLP/15730/12/S.4

Sachivalaya, Gandhinagar

Dated : 18.10.2013

Read : 1. G.R. RD No. RHL/1070/60691/S4,

dated 14.07.1970

2. G.R. RD No. RHL/2185/156/84/S4,

39 (2009) 17 SCC 90

45

dated 29.03.1986

3. G.R. RD No. RHL/2390/3456/54,

dated 05.05.1991

4. G.R. RD No. RHL/102012/SLP/15730/12/S.4,

dated 9.8.2012

PREAMBLE:

As per the assurance given on behalf of the

State Government in SLP (Civil) No. 15730 of

2012, filed by the Government of Gujarat, as

contained in order dated 30

th

July 2012, passed by

the Honourable Supreme Court, the State

Government constituted a committee for

formulation of policy for giving ex gratia assistance

and to prepare a draft of such policy for

consideration by the Government of Gujarat vide

Revenue Department Resolution dated 9

th

August

2012, as referred to above.

The above Committee’s meetings were held on

20

th

August, 2012, 4

th

September, 2012 and on

21

st

February, 2013. The Committee went into

various questions involved in formulating such a

policy and also considered other Government

Resolutions issued earlier with reference to subject

matter. After detailed deliberations and

considerations as above, the Committee took the

view to suggest for providing ex gratia assistance to

all religious places damaged/destroyed in

communal riots as per the existing policy of the

State Government, as reflected in above referred

Government Resolutions. The Committee’s

conclusion reads as under:

“The policy of the past, treating the public

places of worship i.e. temples, mosques and

churches as houses for the purpose of grant

of subsidy and/or loan, may be applied to the

public places of worship damaged/destroyed

during 2002 riots, subject to the conditions

that they are not located in the middle of

roads or at unauthorized places: FIR lodged:

46

and assistance to be given up to the amount

granted for damaged house as per the

existing G.R. limited to the actual cost of

repairing/restoration of that public places of

worship, whichever is less.”

RESOLUTION:

After careful consideration, the State

Government accepts the recommendations of the

Committee and decides to pay ex gratia assistance

up to Rs. 50,000/- to all religious places

damaged/destroyed during the communal riots at

par with the similar assistance which have been

provided by the State Government for

damaged/destroyed houses subject to the

following conditions:

(i) No financial ex gratia assistance would be

available/sanctioned to unauthorized

religious places;

(ii)No religious place, if located in the middle of

the public road or at any unauthorized place,

shall be given any ex gratia assistance;

(iii)For availing the financial assistance under

this Scheme, it is necessary that an FIR

should have been lodged at the relevant point

of time in the nearest police station;

(iv)The person/persons claiming such ex gratia

assistance shall have to satisfy the District

Collector of the District in which such reli-

gious place is situated about the ownership

and/or administration rights of religious

places concerned so as to ensure that any

person unconnected with a religious place

may not claim and receive ex gratia financial

assistance under the Scheme. The decision

of the District Collector in this behalf shall be

final; and

(v)The ex gratia financial assistance given under

this Scheme shall be up to Rs. 50,000/- and

limited to the actual cost of repairing/

restoration, whichever is less.

47

The expenditure on this account should be

met under the budget head Expenditure

Demand No. 82, Major Head 2235-60-200-02

Relief to persons affected by riots.

By Order and in the name of the

Governor of Gujarat.”

39.The said scheme has to be appreciated on the anvil of

the directions issued in Prafull Goradia (supra) and Arch-

bishop Raphael Cheenath S.V.D. (supra). In the first case,

the two-Judge Bench has opined that object of Article 27 is

to maintain secularism and the said Article would be violated

if the substantial part of the entire income tax collected in In-

dia, or a substantial part of the entire central excise or the

customs duties or sales tax, or a substantial part of any

other tax collected in India, were to be utilized for promotion

or maintenance of any particular religion or religious denomi-

nation. The Court has made a distinction between the rela-

tively small part and the substantial part. In Archbishop

Raphael Cheenath S.V.D. v. State of Orissa and an -

other

40

the Court emphasized on the creation of atmosphere

where there shall be complete harmony between the groups

of people and the duty of the State to have discussions with

the various groups to bring about peace and give possible

40 (2009) 17 SCC 87

48

help to the victims. As stated earlier, in Archbishop

Raphael Cheenath S.V.D. v. State of Orissa and an -

other

41

the Court directed the Government to formulate a

scheme regarding the religious places.

40.In the present case, similar direction was given and the

State has framed the scheme. On a close scrutiny of the

scheme, we have noticed that the Government has fixed the

maximum amount under the caption of ex gratia assistance

and also conferred the power on the District Collector of the

Districts where religious places are situated to determine

about the ownership or administration rights of religious

places concerned. There are certain conditions precedent for

claiming the amount. The terms and conditions which are

incorporated in the scheme are quite reasonable. It is also

worthy to note that while fixing the maximum limit, the Gov-

ernment has equated the same with houses which have been

given the assistance. When the individual’s grievances per-

taining to property has been conferred the similar assistance,

we are disposed to think, the assistance rendered for repair-

ing/restoration of public places of worship will come within

the guidelines of Prafull Goradia (supra) and Archbishop

41 (2009) 17 SCC 90

49

Raphael Cheenath S.V.D. (supra). Therefore, we accept the

said scheme.

41.The claimants who fulfil the conditions of the scheme

shall approach the authorities therein within eight weeks and

the said authorities shall determine the same within three

months from the receipt of the claims. If any party is ag-

grieved by the denial of the benefit, he can take appropriate

steps in accordance with law.

42.In view of the aforesaid analysis, the judgment and or-

der passed by the High Court is set aside and the appeal is

disposed of in the above terms. There shall be no order as to

costs.

...........................................CJI

[Dipak Misra]

.….................................................J.

[Prafulla C. Pant]

New Delhi;

August 29, 2017.