Pl suggest refinement or law point , if any, Dear senior members.
Dated 29-12-08
To,
[1]The State of Maharashtra,
Thro’ The Chief Secretary and Home Secretary,
Mantralaya, Mumbai 400 032.
[2]The Union of India,
Through the Chief Secretary, Ministry of
Home Affairs, North Block, Jaisalmer House,
Lok Nayak Bhavan, New Delhi.
Sirs,
I have the honour to state that the High Court Legal Services Committee, Annexe Building, High Court, Mumbai, vide its letter bearing Reference no …………………………………………….dated ………………………has appointed me to provide legal services to Mr Abdul Rahim Aboobaker, Age……… years, residing at 24/26 Tantanpura Estate, Sabra Manzil, 1st Floor, Mumbai 400 009.
On the instructions of Mr Abdul Rahim Aboobaker abovenamed ,by this representation, I hereby address you as follows;
[1] Mr Abdul Rahim Aboobaker, a citizen of India, resides at the above stated address with his family members comprising of his unmarried daughter and wife. His two sons are employed in Gujrat. He is /was the owner of Taxi no. MH-01 G-7792 which was destroyed by explosion in the terrorist attacks on Mumbai on the night of 26th November 2008. The said taxi was purchased by him by selling the jewelry of his wife in the year 1994. Mr Abdul Rahim Aboobaker carried out repairs of the taxi in June 2008, to the tune of around Rs 75,000/- as the taxi was the sole source of income for him and his family. The taxi was insured with Reliance General Insurance vide Policy no …………………………………………………………… for the period ……………………….to……………………… for third party claims. The Insurance policy however did not cover own damage.
[2] On the above stated fateful day i.e. on November 26, driver of the said taxi, Mohammed Umar Khalid Shaikh [ a migrant from Uttar Pradesh who lived with his wife and 3 children at Govandi ] was killed on the Western Express Highway near Vile Parle after a bomb went off in the taxi. A Hyderabad-based Advocate Laxminarayan Goyal, aged around 57 years who was traveling in the taxi was also killed. Going by the media reports , samples from the blast tested at Forensic Laboratory in Mumbai proved that RDX was used in the explosion.
[3] Mr Abdul Rahim Aboobaker has furnished Xerox copies of the [a] Receipt of Rs 5,085/- dated 29-10-2007 no B/2 87880 issued by the Bombay Taximens’s Union [b] Tax receipt no 309369 of Rs 472/- paid to the R.T.O. [c] CNG Cylinder test Certificate [d] Permit no 9295/C/95 valid till 14-02-2010 in respect of the said taxi. [e] Relevant extract of R.C. Book of the said taxi These are the documents on which he relies to prove that he was the owner of the said taxi no MH-01 G-7792 and the same are annexed herewith. Annexed also is copy of relevant pages of his ration card [old residential address]. He has been unable to obtain the police investigation papers pertaining to the incident, like spot panchanama , statements of witnesses , P.M. reports of driver and passenger of the vehicle etc., and the same can be called for by your kind self from the concerned police station.
[4] Mr Abdul Rahim Aboobaker seeks just compensation/restitution for the damage caused to his taxi which was completely destroyed in the terrorist attacks. [ restitution includes payment for loss and reimbursement of expenses incurred as a result of the loss including consequential loss.]The State of Maharashtra compensated the widow of the driver of the said taxi by giving her ex-gratia compensation of Rs 5,00,000/- and Rs 15,000/- for funeral expenses. The said taxi was the sole source of income for Mr Aboobaker and after the incident , the family is facing hard times.
[6] Quoting extensively and verbatim from various judgments of the High Courts , it is submitted that :-
[i] Article 21 of the Constitution of India guarantees as a fundamental right to every citizen of this country personal liberty which is fundamental to the functioning of our democracy. The very Preamble ensures liberty, equality and fraternity to the citizens of India. Undoubtedly, the state is obligated to ensure that the rights of individuals or group of persons under Article 21 of the Constitution of India are not and cannot be violated.
[ii] The term ‘life’ used in Article 21 is not only restricted to the mere nominal existence but extends to the inhibition against it deprivation to all those limits and faculties by which life is enjoyed. It also includes the right to livelihood. The ambit and scope of ‘right to life’ conferred by this Article is wide and far reaching which does not mean merely that life cannot be extinguished or taken away but embraces within its ambit the right to livelihood because no person can live without the means of living. If the right to livelihood is not treated as part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. As and when life and property is taken away by any individual or organization , a duty is cast upon the State representing the will of the people to compensate the victim by granting adequate compensation. The monarchial rule has to be distinguished from democratic set up and the State cannot shirk its responsibility to protect the life , liberty and property of the citizens. On their failure to protect the life, liberty and property of the citizens, State is under a constitutional obligation to compensate the victim adequately.
[iii] Under Article 300A of the Constitution , no person shall be deprived of his property save by authority of law and to allow his properties to be reduced to ashes by the force of darkness and evil is a clear deprivation of the right to property guaranteed by the Constitution.
[7] The maintenance of law and Order is the primary duty of the State and under our Constitution it is a ‘State’ subject and tops the State list. If the media reports are believed, the terrorist acts were acts of external aggression and ‘defence’ is in the Union list, hence this correspondence with the State as well as with the Centre.
[8] Primarily it is the terrorist who planted the explosive who are responsible, but thereafter it is the State who is responsible as it failed in its duty to prevent the terrorists from entering Mumbai due to failure of intelligence in picking up the movement of the terrorists as it i.e. the State was not vigilant enough.
[9] It is imperative that a centralized committee be formed to quantify the loss to property arising out of the terrorist attacks on 26-11-2008 and the amount be disbursed at the earliest. For compensation to be effective it is just and necessary that it be given with a least possible delay in order to lessen the impact of the loss and to help the aggrieved person in time of need. The importance of timely help in such circumstances need not be emphasized. Mr Aboobaker has not been approached by any government machinery to quantify the loss suffered by him and hence has approached the High Court Legal Service Committee at Bombay. In the event of his claim not being quantified and processed within a period of 15 days from receipt of this representation he will be constrained to file Writ Petition in the High Court of Judicature at Bombay praying for the reliefs claimed in this representation.
Rajan Salvi
Advocate, High Court.
