02 March 2005

Gulberg Society victims claim Rs. 64 crores `bandh' damages

2 March 2005
The Hindu

Gulberg Society victims claim Rs. 64 crores `bandh' damages

By Siddharth Varadarajan

NEW DELHI, MARCH 1. In a dramatic step that will test the limits of tort law in India, residents of the Gulberg Housing Society in Ahmedabad — where the former MP, Ahsan Jaffri, and more than 40 Muslim residents were killed on February 28, 2002 — have begun civil legal proceedings against senior leaders of the BJP, the Rashtriya Swayamsevak Sangh and the Vishwa Hindu Parishad claiming damages of Rs. 64 crores for the loss of life and property sustained by family members during the Gujarat bandh called by the three organisations.

The move is the second time a 1997 Supreme Court judgment on the banning of bandhs and the imposition of damages is being invoked by victims to demand monetary compensation.

Last July, a group of Mumbai residents led by Gerson da Cunha and B.G. Deshmukh successfully sued the Shiv Sena for damages stemming from a city-wide bandh, with the Bombay High Court, in a landmark judgment, ordering the Shiv Sena and the BJP to pay Rs. 20 lakhs each to the city of Mumbai for causing ``hardship to lakhs of people.''

According to Teesta Setalvad of the Citizens for Justice and Peace, which is supporting the legal action, statutory notices under the Limitations Act were served by registered post to the presidents of the Gujarat state BJP, RSS and VHP as well to the VHP international general secretary, Pravin Togadia, on February 26 and 27, within the three-year limit stipulated by law. The suits will now be filed under the Civil Procedure Code in an Ahmedabad court.

The Gulberg Society, once a prosperous compound housing several two-storeyed bungalows, today lies completely gutted and abandoned. Not only are the former residents unable to move back, there is little prospect of them selling their property for anything like a fair price.

The legal notice served on behalf of Zakia Jaffri, widow of Ahsan Jaffri, states that because of the ``Gujarat bandh'' call issued by the respondents, "some people... attacked the Gulberg Society and, therefore, the mob had looted the movable articles from the house of my client and burnt alive several people including husband of my client namely late Mr. Ahsan Jafri... This gruesome incident has taken place because of the `Bandh Call' issued by you... The pain and mental agony undergone by my client is due to the incidents that occurred due to the bandh call issued by you. The approximate loss incurred by my client is about Rs. 70 lakh and therefore my client is liable to sue you for the compensation of Rs. 70 lakh... ''

Several other residents have also served similar notices for varying amounts. In the Mumbai case, the Bombay High Court rejected the claim of the Shiv Sena and the BJP that the bandh was a ``spontaneous gesture'' by residents to protest against the July 2003 bomb blasts. Though the court admitted that there was no ``factual data available to ascertain the cost suffered by citizens,'' it nevertheless held the damage to have been substantial. Similarly, the Jharkhand High Court declared in a December 2003 order restraining the JMM from calling and enforcing a bandh in the State that any loss of public property or production during such a bandh would be recovered from the assets of the party and its office-bearers.

The Gujarat bandh was called by the VHP soon after the Godhra train incident of February 27, 2002.

Rajendrasinh Rana, Gujarat BJP president, endorsed the bandh call, as did some ruling ministers.

In its 1997 judgment (Bharat Kumar), the Supreme Court upheld a Kerala High Court judgment declaring bandhs illegal and mandating the imposition of punitive costs on those who call them in the event that there was any damage to property. In the High Court hearing, the State Government had said that action for recovery of damages to property was not possible because of the difficulty in identifying the persons who actually caused the damage.

The court said that it could not accept the plea that the miscreants could never be identified. But assuming that the Government's argument is correct, ``even then it is clear that those who have called for the bandh would be liable for the damage caused to public property and we do not see why they cannot be sued on the principle of compensation or on tort.''

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