- (1.) THIS is a petition under Article 226 of the Constitution by one Durga Prasad who is a resident of village Sisaiya, Police Station Izatnagar, District Bareilly.
(2.) THE affidavit in support of the petition has been filed by one Murari Lal, a resident of village kesarpur, police station Isatnagar, district Bareilly. A riot took place in village Kesarpur on 23-3-1951. A large number of Hindus, including the petitioner, was arrested and the papers were sent to the Additional District Magistrate (Judicial), Bareilly for enquiry. We are, however, not concerned with those proceedings. As a result of the riot, a notification was issued under sub-section (1) of Section 15, Police Act, 1861 (5 of 1861), declaring village Kesarpur and certain other villages in Police Circle Izatnagar and village Saidpur within Police Circle Earadari in the district of Bareilly to be in a disturbed state. This proclamation was to remain in force for a period of five months. As a result of this notification, additional police force had to be sent to these villages. The cost of this additional police force was made payable by the inhabitants of the locality who were responsible for the disturbed state of the area. On the recommendation made by the District magistrate, Bareilly, the State Government passed an order under Sub-section (5) of Section 15, police Act, exempting CD Government servants, (2) Muslims, (3) invalids and (4) persons who neither participated in nor were in any way connected with the riot-ing from the liability of paying the costs of the additional police. A claim was also made for payment of compensation by certain persons who had suffered as a result of the disturbances, and this was done within one month as required by Section 15a, Police Act. The Sub-Divisional Magistrate made enquiries and found that a sum of Rs. 4,875/- was payable as compensation to the Muslim inhabitants of the locality. The persons exempted from payment of cost of the additional police under Sub-section (5) of Section 15 were also exempted from paying compensation under Sub-section (3) of Section 15a, Police Act. Learned counsel urged that the State Government had passed a most unjust and discriminatory order in exempting muslims from paying costs of the additional police and in awarding them compensation as they were responsible for the disturbed condition of the area. In the affidavit filed in support of the petition or in the rejoinder affidavit, no such allegation has, however, been made. The language used in paragraph 4 of the affidavit of Murari Lal filed on 15-11-1951, is in most guarded language and reads as follows: "4. That enquiry proceedings are pending against 107 Hindus and 'it is said for the defence that the Muslim inhabitants of the locality had taken law into' their own hands and the Hindus are absolutely innocent. " From the portion underlined, (here in ' ')' it would appear that the deponent was not taking the responsibility for the truth of the allegation but was making a statement to the effect as to what the defence was of the 107 Hindus against whom proceedings were pending. AS a result of our pointing this out to learned counsel, he confined his arguments only to a short point that the provisions of Sub-section (5) of Section 15 and Sub-section (3) of Section 15a, police Act, are invalid as they give an arbitrary power to the State Government to exempt from payment of the cost of additional police and compensation anybody they liked irrespective of the fact whether he was or was not a person responsible for the disturbed condition of the area.
(3.) THE scheme of Section 15 is that if there is a local disturbance in any part of the country, the state Government can declare that a particular area has been found to be in a disturbed or dangerous state. It can, in the alternative, issue a proclamation that it is expedient to increase the number of police in that particular area due to the conduct of the inhabitants of that area or of any class or section of them. Sub-section (5) of Section 15 then provides as to who should pay for this additional police. It says that the costs for the additional police shall be borne by the inhabitants of the area described in the proclamation. Though the proclamation may cover the inhabitants described in it, the State Government has been given the power under Sub-section (5)of Section 15 to grant exemptions. Sub-section (5) of Section 15, Police Act, reads as follows: "15 (5) It shall be lawful for the State Government by order to exempt any persons or class or section of such inhabitants from liability to bear any portion of such cost. " The expression "such inhabitants" must here, refer to inhabitants described in the proclamation under Sub-section (3) of Section 15a and the words that are important are that the State government can, by order, exempt any persons or class or section of the inhabitants described in the proclamation. The power of exemption given to the State Government under suta-s. (5) of section 15 thus appears to be very wide and from the mere reading of the sub-section, it would appear as if it is uncontrolled by any other provision and the State Government can exempt even those who may have been responsible for the disturbed condition of the area. The language of Sub-section (3) of Section 15a is more or less in the same terms and, practically, the same argument has been advanced with respect to that sub-section. The scheme of Section 15a is that if death or grievous hurt or loss of, or damage to property has been caused by or has ensued from the misconduct of the inhabitants of any such area or any class or section of them, then an application can be made within one month to the Magistrate of the district or of the sub-division of a district, within which that area is situate, for compensation. The Magistrate has been given the power to hold an enquiry and, after the enquiry, he is to " (a) declare the persons to whom injury has been caused by or has ensued from such misconduct; (b) fix the amount of compensation to be paid to such persons and the manner in which it is to be distributed among them; and (c) assess the proportion in which the same shall be paid by the inhabitants of such area other than the applicant who shall not have been exempted from liability to pay under the next succeeding sub-section," There is a proviso which, however, limits the power of the Magistrate and he must first be satisfied that damage or injury has been caused as a result of a riot or unlawful assembly in the area and that person, who has suffered the injury, was himself free from blame in respect of the occurrences which led to that injury. This, therefore, gives the Magistrate a quasi-judicial power to determine the compensation payable and the responsibility for the payment of the same.;