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2009 Supreme(Gau) 904
IN THE HIGH COURT OF GAUHATI
Jasti Chelameswar, C.J., Hrishikesh Roy and Ranjan Gogoi, JJ.
Hirendranath Gohain - Appellants
Vs.
Union of India (UOI) and Ors. - Respondent
Decided On : 17.12.2009
Headnote:
Constitution of India, 1950 - Article 19(1)(a) , 19 , 13 , 14, 15 , 16 and 21 - Scholar and critic - Parcel - Loss of a postal parcel containing books and precious manuscript - Affidavit - Petitioner, who is a reputed scholar and critic of Assam and is a Academy Awardee for his literary output, is before this Court in connection with loss of a postal parcel containing books and precious manuscript booked by him for delivery to USA, which remained undelivered and was lost in transit - Concerned international speed post article was booked by the petitioner at Speed Post counter in general post office and said parcel weighing approximately 18.16 kg - According to petitioners estimate value of books in parcel would be worth - But as regards the manuscripts and authors notes, it is stated that it is not possible to put a money value of manuscript and notes, which was product of immense intellectual effort and time of petitioner - But if a value of manuscript in terms of money is to be put same will be according to petitioner worth at least Rs. 10 lakh - Petitioner ought to be compensated for colossal loss caused to him because of lapses and negligence of postal authorities - It is further contended that the postal authorities in instant case are not involved with any sovereign activities and are merely carrying out commercial functions and no immunity can be claimed by postal authorities against claim for damage in public law put forward by petitioner – Held, present case also does not show any dispute on core facts; inasmuch as respondent Union of India does not dispute receipt of articles for transhipment to the United States of America- Fact that consignment in question consisted of manuscripts and rare books though based on statement of writ petitioner can inspire confidence of court having regard to his unimpeachable credentials and stand taken by respondents in the affidavit filed, i.e., consignment was without any declaration of contents - If such a declaration was necessary respondents should have insisted on it - Reason for such relegation is that issues arising for adjudication are considered more appropriate for resolution in a suit rather than in a writ petition - Above principle will be of doubtful application to present case where no substantial question of fact is in dispute between parties - In such a situation, it is difficult to visualize as to why in domain of public law token compensation for an established breach of a fundamental right cannot be granted by writ court has been noted that what has been awarded by brother Hrishikesh Roy, J. is a sum by way oil token compensation for loss of manuscripts and for estimated loss on account of value of rare books - Writ petition was earlier heard by this Bench - On conclusion of the hearing, both of us could not agree upon conclusion and two separate orders were delivered - While Court took view that writ petition ought to be dismissed brother Justice took a view that writ petition ought to be disposed of with certain directions - Petition allowed.
Hrishikesh Roy, J.
1. Heard Mr. P.K. Goswami, learned senior Counsel representing the petitioner. Also heard Mr. D.C. Choudhury, learned Central Government counsel who represents the respondent Nos. 1 to 9.
2. The petitioner, who is a reputed scholar and critic of Assam and is a Sahitya Academy Awardee for his literary output, is before this Court in connection with loss of a postal parcel containing books and precious manuscript booked by him for delivery to USA, which remained undelivered and was lost in transit. The concerned international speed post article was booked by the petitioner on 8.2.2007 at the Speed Post counter in the general post office, Guwahati and the said parcel weighing approximately 18.16 kg. was accepted for delivery by the postal authorities to the addressee at Phoenix, Arizona USA and a charge of Rs. 8,559 inclusive of service tax. of Rs. 934 was assessed as the courier charge which was paid by the petitioner at the time of booking of the parcel.
3. The petitioner claims that the parcel contained his invaluable notes and also the manuscript of the petitioner's forthcoming publications on the proposed monograph on the 18th century Assamese thinker Bani Kanta Kakati. According to the petitioner's estimate the value of the books in the parcel would be worth about Rs. 60,000. But as regards the manuscripts and the author's notes, it is stated that it is not possible to put a money value of the manuscript and the notes, which was the product of immense intellectual effort and time of the petitioner. But if a value of the manuscript in terms of money is to be put, the same will be according to the petitioner worth at least Rs. 10 lakh.
4. It is not in dispute that the parcel booked by the petitioner with the postal authorities was not delivered to the addressee in the USA and despite the serious effort made by the petitioner to recover the books and manuscript, no trace of the parcel could be found, leading to the inevitable conclusion that it was lost in transit.
5. For the missing parcel, compensation by way of money for a sum of Rs. 1986 was offered by the postal authority to the petitioner by its communication dated 20.6.2007.
6. Appearing for the petitioner Mr. P.K. Goswami, learned senior Counsel contends that although the loss of the original works of the writ petitioner are priceless and the conduct of the postal authorities are reprehensible, the petitioner ought to be compensated for the colossal loss caused to him because of the lapses and negligence of the postal authorities. It is further contended that the postal authorities in the instant case are not involved with any sovereign activities and are merely carrying out commercial functions and no immunity can be claimed by the postal authorities against the claim for damage in public law, put forward by the petitioner.
7. In the counter affidavit filed by respondent Nos. 1 to 9, the factum of booking of the International Speed Post article by the petitioner is admitted by the Postal Authorities. It is also claimed that adequate efforts were also made to trace out the article with the Indian postal Authority's counterpart in the USA as well as with the Lufthansa Cargo Airlines and also in the Airport Cargo Offices and the other possible places where the parcel could have been misplaced, but no trace of the same could be found.
7.1. However, it is averred that the liability of the Postal Department to compensate for the loss of the articles is determinable in accordance with provisions of the Universal Postal Union (UPU) convention of Beijing Accords, 1999 whereby compensation is granted on the basis of the value of the SDR fixed by order dated 29.7.2004 (Annexure XII). The value of one SDR was fixed at Rs. 6,48,392 as per order dated 29.7.2004 which has since been revised to Rs. 6,62,002 and according to the calculation made, the petitioner is liable to be paid by way of compensation, only a sum of Rs. 1986 for the loss of International Speed Po
