Wednesday, 13 July 2016

Whether municipal corporation can remove encroachment without issuing notice?

Now we shall see the procedure that is prescribed

 under Section 406 of the Municipality Act. Section

 406 deals with demolition or alteration of building

 work unlawfully commenced, carried on or completed.

 Section 406(1) provides inter alia that where the

 Secretary is satisfied that construction has been

 commenced    or  carried  on  or  has  been  completed

 attracting any one of the provisions therein, the

 Secretary may make a provisional order requiring the

 owner or the person for whom the work is done, to

 demolish the work done or so much of it, as in the

 opinion    of  the   Secretary,  has been   unlawfully

 executed, or to make such alterations as may, in the

 opinion of the Secretary, be necessary to bring the

 work in conformity with the provisions of the Act,

 rules or bye-laws.   Sub section (2) provides that the

 Secretary shall serve a copy of the provisional order

 made under sub section (1) on the owner or the person

 for whom such work is done, together with a notice

 requiring him to show cause within a reasonable time,

 to be specified in such notice, why the order should

 not be     confirmed. Sub section (3) further provides

 that where the owner or the person for whom the work



 is done fails to show cause to his satisfaction, the

 Secretary may confirm the order issued under section

 406(1) or modify the same to such extent as he may

 think fit to make, and such order shall then be

 binding on the owner or the person for whom the work

 is done.     It is also provided that on non compliance

 of the order, the Secretary may himself cause the

 building or part thereof demolished and the expenses

 thereof shall be recoverable from the owner or such

 person.



15.This provision also shows that the Secretary is

 required to pass a provisional order as provided

 under section 406(1) and only if the owner or the

 person for whom the work is done who is served with

 the      provisional order   together  with  a   notice

 requiring him to show cause within a reasonable time

 why the order should not be confirmed, fails to show

 cause to the satisfaction of the Secretary, then and

 then alone can the Secretary confirm the order under

 sub section (3).     If the owner fails to comply with

 such an order under sub section (3), it is only then,



 the Secretary is authorised to demolish the building

 or the part thereof.



16.Admittedly, before demolishing the structure of the

 appellants on 24.10.2013, none of these statutory

 provisions were complied with by the 6th respondent

 Corporation.        Apparently realising the difficulty in

 wriggling       out    of  this     situation,     learned   senior

 counsel for the Corporation attempted to take refuge

 under section 372(a) of the                  Act.      Section 372

 provides that the Secretary may, without notice,

 remove the encroachment.            Section 369 and 372, being

 relevant in this context, are extracted below for

 reference:



               "369. Prohibition of structures or fixtures
           which cause obstruction in public streets- No
           person shall except with the written permission of
           a Municipality erect or set up within a municipal
           area any wall, fence, rail, post, step, booth or
           other structures or fixtures in or upon any public
           street or upon or over any open channel, well or
           tank in any street so as to form an obstruction, or
           an encroachment upon or a projection over, or to


           occupy any portion of such street, channel, drain,
           well or tank."

               "372. Secretary may without notice remove
           encroachment-         Notwithstanding        anything
           contained in this Act, the Secretary may, without
           notice, cause to be removed-
           (a) Any wall, fence, rail, step, booth or other
           structure or fixture which is erected or set up in
           contravention of the provisions of section 369;

           (b) any stall, chair, bench, box, ladder, bale, or any
           other thing whatsoever, placed or deposited in
           contravention of section 370;

           (c) Any article, whatsoever, hawked or exposed
           for sale in any public place or in any public street
           in contravention of section 371 and any vehicle,
           package, box, board, shelf or any other thing in or
           on which such article placed or kept for the
           purpose of sale."



17.Reading of section 372 shows that it starts with a

 non obstante clause and clause (a) authorises the

 Secretary to cause to be removed, without notice, any

 structure or fixture which is erected or set up in

 contravention of the provisions under section 369.

 Language of section 369 shows that this provision is


 attracted only if any structure is erected or set up

 "in or upon" any public street or upon or over any

 open channel, well or tank in any street so as to

 form an obstruction, or an encroachment upon or a

 projection over, or to occupy any portion of such

 street, channel, drain, well or tank.



18.The power under section 372 being a drastic one,

 such      power can be  exercised  only  in  extremely

 emergent situations.     Secondly a provision of this

 nature will have to be construed strictly and should

 be invoked only in cases where all requirements of

 this provision are made out.      This therefore means

 that the Corporation has failed to establish that

 they      could have legitimately taken  action  under

 section 372 of the Act.  
IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                PRESENT:

                         THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
                                                       &
                             THE HONOURABLE SMT. JUSTICE P.V.ASHA

          WEDNESDAY, THE 11TH DAY OF NOVEMBER 2015

                             WA.No. 1265 of 2014 () IN WP(C).28432/2013
                               
        SUBAIDAABDUL RASHEED,
  Vs          

        STATEOF KERALA
           
Citation:AIR 2016 (NOC)394 kerala

1.Petitioners in W.P(C).28432/13 are the appellants.

 They filed the writ petition seeking to declare that

 the act of the 6th respondent demolishing the portion

 of the building where they were residing, without any

 notice, is illegal and to direct the 6th respondent to

 restore the demolished portion of the residential

 building or to recover the costs of the same from the

 respondents.      The  writ    petition  having   been

 dismissed, this appeal is filed.



2.Briefly stated, the facts of the case are that

 according to the appellants, they are in possession

 of 12 cents of land in Survey No.680 and 683 of

 Vanchiyoor village, where they have constructed a

 building which has been numbered by the Corporation.

 Although the Corporation has described the structure

 as a shed and has disputed the assertion that the

 building was numbered by it, we do not think it

 necessary to resolve that controversy in this case.

 Be that as it may, it is a fact that the appellants


 are in possession of the land and are residing in the

 structure therein.



3.According to the appellants, various proceedings were

 initiated by different authorities to illegally evict

 them from the property and the building and at one

 stage, the Revenue Divisional officer took over the

 property and appointed a Receiver.    Those proceedings

 concluded      by   restoring  the   property   to   the

 appellants.     It is also stated that subsequently, the

 residents' association of Padma Nagar, a neighbouring

 residential      colony,  filed  OS.132/96  before  the

 Munsiff      Court,  Trivandrum seeking   an  order   of

 injunction against the appellants from 'trespassing'

 into      the property  in  question.    The  suit  was

 dismissed by Ext.P3 judgment and the said judgment

 was confirmed by the first appellate court.       It is

 stated that subsequently, though this Court remanded

 the matter to the Munsiff Court,     judgment was again

 rendered dismissing the suit.



4.While matters stood thus, the Corporation issued

 Ext.P7, an order under section 406(3) of Kerala



 Municipalities Act, 1994 (hereinafter, the 'Act', for

 short).      Subsequently, proceedings under the Kerala

 Land Conservancy Act, 1957 were also initiated by

 Exts.P13(a) and P13(b).       That was contested by the

 appellants by filing Ext.P14 reply, where, they inter

 alia contended that the application filed by them for

 assignment of the land was pending consideration of

 the District Collector.     Apprehending coercive action

 pursuant to Exts.P13(a) and P13(b), appellants filed

 W.P(C).20899/07,      which    culminated   in   Ext.P16

 judgment,      where,  this  Court  directed  that   the

 District Collector should pass final orders on the

 assignment application submitted by the appellants.

 It was also ordered that further proceedings pursuant

 to Exts.P13(a) and P13(b) will be kept in abeyance

 and will be continued subject to the order to be

 passed by the District Collector.       This resulted in

 Ext.P22      order  passed  by  the  District  Collector

 whereby the application for assignment of the land

 was      rejected.    According  to  the  appellants,  a

 revision filed by them against this order is still

 pending before the Land Revenue Commissioner.


5.In the mean while, appellants challenged Ext.P7 order

 issued        under     section      406(3)     of      the   Kerala

 Municipality        Act    in   an   appeal     filed    before the

 Tribunal for Local Self Government Institutions.                 By

 Ext.P25 order, the Tribunal set aside Ext.P7 holding

 thus:

               "13. As already pointed out above, it is stated
           in the provisional order dated 18.6.2008 that the
           construction is done over property belonging to
           the Government. If the constructions are done on
           properties vested in the Corporation the proper
           procedure to be followed is that under Section
           376 of the Kerala Municipality Act.            The
           procedure under Section 406 of the Kerala
           Municipality Act are to be initiated as against
           unauthorised and illegal constructions if any done
           over the property of the person against whom the
           proceedings are initiated.

                 14. In the circumstances pointed out above,
           the impugned order is not sustainable and is liable
           to be set aside with direction to the 1st
           Respondent to initiate fresh proper proceedings,
           if any, as per law, without any unnecessary delay,
           if there are any reasons for doing so.

                 In the result, the Appeal is allowed. The
           impugned order bearing No.TP7/ZR1/1082/04
           dated 16.11.2008 of the Secretary, Corporation of



           Thiruvananthapuram is set aside.          The 1st
           Respondent is directed to initiate fresh proper
           proceedings, if any, as per law, without any
           unnecessary delay, if there are any reason for
           doing so."



6.While matters stood thus, a complaint was submitted

 by       Thiruvananthapuram       Citizens     Protection    Forum

 before       the   Ombudsman      for   Local    Self    Government

 Institutions.           In   that    complaint,     the   Ombudsman

 passed Ext.P26 order, where it was directed thus:



                   "I direct the Corporation to follow up and
           find out what has happened to the proceedings
           initiated under Ext.P30 in the writ petition and
           whether it has been disposed of in favour of the
           petitioners or it is turned down. If it is turned
           down, then necessarily the construction made by
           Respondents 3 and 4 are unauthorised and
           therefore Corporation has to initiate action for
           demolition of the same in accordance with the
           rules and ordered by the Tribunal."



7.It is stated that thereafter, without any notice or

 other intimation to the appellants, the residential

 building, which is described by the Corporation as a


 shed, was partially demolished by the Corporation on

 24.10.2013.         It is in these circumstances, the writ

 petition was filed.



8.The Corporation          has filed a statement where it is

 stated that the property in question is a puramboke

 land and that no licence or permit was issued for the

 construction of any building there.              In so far as the

 incidents which led to the demolition of the building

 is       concerned,     the   Corporation     has   justified its

 action by stating thus:



            "The Corporation was informed by letter dated
            16-7-2013 by the District Collector, Trivandrum
            that the Application for assignment filed by the
            Petitioners has been rejected. It is submitted
            that Exhibit-P22 order has been issued by the
            District Collector of Trivandrum, on the basis of
            the directions issued by this Hon'ble Court in
            Exhibit-P16 Judgment.     On the basis of the
            Hon'ble Ombudsman for Local Self Government
            Institutions by order dated 4-6-2013, the
            Corporation has demolished the unauthorized
            construction made by the Petitioners in the
            Puramboke land on 24-10-2013. It is submitted
            that the construction made by the Petitioners is
            totally unauthorized and was made by trespassing
           into   the    road     puramboke   near   the
           Sreepadmanabha Swami Temple. The construction
           was made on the road puramboke through which
           the Pipeline for cleaning the Sreepadmanabha
           Swami Temple pond is laid. The puramboke land
           forms part of the drainage road."



9.A reading of the statement filed by the Corporation

 would      therefore     show    that   it  admits  of  having

 demolished the structure in the property in the

 possession of the appellants on 24.10.2013.            It also

 does not have a case that the said act was preceded

 by any notice or other intimation to the appellants.

 On the other hand, what it says is that it did

 demolish the building on the basis of Ext.P26 order

 passed by the Ombudsman for Local Self Government

 Institutions.



10.Judgment under appeal shows that the view taken by

 the learned single Judge is that in Ext.P26 order of

 the Ombudsman, it was clearly ordered that if the

 application for assignment of the land is turned

 down, the structure therein should be demolished.

 Therefore, since demolition was as ordered by the


 Ombudsman in its order, there is nothing illegal in

 the action of the 6th respondent Corporation.  It was

 accordingly the writ petition was dismissed.



11.Having heard the learned counsel for the appellants,

 learned Government Pleader and the learned senior

 counsel appearing for the 6th respondent Corporation,

 we are satisfied that the action of the Corporation

 in demolishing the structure in the land in the

 possession of the appellants is clearly illegal and

 it amounts to violation of their fundamental rights

 guaranteed under Article 21 of the Constitution of

 India.



12.From the statement dated 8.2.2014 filed on behalf of

 the 6th respondent Corporation, it can be seen that

 all what is stated is that it was on the basis of the

 order passed by the Ombudsman, the Corporation has

 demolished     the  structure of  the  appellants   on

 24.10.2013.      Ext.P26 order of the Ombudsman, the

 relevant portion of which has already been extracted

 herein     above, would  reveal that  what  has   been

 directed therein is that if the decision pursuant to


 Ext.P13      notice  issued   under  the  Kerala   Land

 Conservancy     Act,  which  has  been referred  to in

 Ext.P26 as Ext.P30, is against the appellants, the

 Corporation is given liberty to initiate action for

 demolition of the structure in accordance with the

 rules and as ordered by the Tribunal for Local Self

 Government Institutions in Ext.P25 order.     Though it

 is       true that  Ext.P13 proceedings  culminated  in

 Ext.P22 order passed by the second respondent and

 that the assignment application of the appellants was

 rejected, even apart from the fact that a revision

 filed by the appellants is stated to be pending

 before the Land Revenue Commissioner and therefore,

 the proceedings have not attained finality, the order

 passed by the Ombudsman only enabled the Corporation

 to initiate action as directed by the Tribunal for

 Local Self Government Institutions in Ext.P25 order

 and       in accordance  with  law,  viz., the   Kerala

 Municipality Act, 1994.



13.In so far as Ext.P25 order is concerned, though the

 Tribunal has indicated that if the construction is

 on the properties vested in the Corporation, the


 proper procedure to be followed was under section 376

 of the Municipality Act, it would only mean that

 further action to be initiated by the Corporation

 should be in accordance with section 376 or section

 406 of the Kerala Municipality Act.        A reading of

 section 376 of the         Act shows that as per this

 provision, if a person is found to be occupying any

 land      belonging to  the  Municipality,  without  its

 previous sanction, he shall be liable for penalty and

 also, for summary eviction under sub section (3)(a)

 thereof.      However, section 376(3)(b) provides before

 eviction under section 376 (3)(a), a notice shall be

 served on the person in occupation or his agent,

 requiring him, within such time as the Secretary may

 deem reasonable after receipt of the said notice, to

 vacate the land.      If such notice is not obeyed, then

 only, the occupant can be evicted in the manner as

 provided therein.      This provision, therefore, shows

 that only after serving notice on the occupant and

 only if the occupant does not vacate the land within

 the time specified in the notice, summary eviction

 under this provision can be resorted to.



14.Now we shall see the procedure that is prescribed

 under Section 406 of the Municipality Act. Section

 406 deals with demolition or alteration of building

 work unlawfully commenced, carried on or completed.

 Section 406(1) provides inter alia that where the

 Secretary is satisfied that construction has been

 commenced    or  carried  on  or  has  been  completed

 attracting any one of the provisions therein, the

 Secretary may make a provisional order requiring the

 owner or the person for whom the work is done, to

 demolish the work done or so much of it, as in the

 opinion    of  the   Secretary,  has been   unlawfully

 executed, or to make such alterations as may, in the

 opinion of the Secretary, be necessary to bring the

 work in conformity with the provisions of the Act,

 rules or bye-laws.   Sub section (2) provides that the

 Secretary shall serve a copy of the provisional order

 made under sub section (1) on the owner or the person

 for whom such work is done, together with a notice

 requiring him to show cause within a reasonable time,

 to be specified in such notice, why the order should

 not be     confirmed. Sub section (3) further provides

 that where the owner or the person for whom the work



 is done fails to show cause to his satisfaction, the

 Secretary may confirm the order issued under section

 406(1) or modify the same to such extent as he may

 think fit to make, and such order shall then be

 binding on the owner or the person for whom the work

 is done.     It is also provided that on non compliance

 of the order, the Secretary may himself cause the

 building or part thereof demolished and the expenses

 thereof shall be recoverable from the owner or such

 person.



15.This provision also shows that the Secretary is

 required to pass a provisional order as provided

 under section 406(1) and only if the owner or the

 person for whom the work is done who is served with

 the      provisional order   together  with  a   notice

 requiring him to show cause within a reasonable time

 why the order should not be confirmed, fails to show

 cause to the satisfaction of the Secretary, then and

 then alone can the Secretary confirm the order under

 sub section (3).     If the owner fails to comply with

 such an order under sub section (3), it is only then,



 the Secretary is authorised to demolish the building

 or the part thereof.



16.Admittedly, before demolishing the structure of the

 appellants on 24.10.2013, none of these statutory

 provisions were complied with by the 6th respondent

 Corporation.        Apparently realising the difficulty in

 wriggling       out    of  this     situation,     learned   senior

 counsel for the Corporation attempted to take refuge

 under section 372(a) of the                  Act.      Section 372

 provides that the Secretary may, without notice,

 remove the encroachment.            Section 369 and 372, being

 relevant in this context, are extracted below for

 reference:



               "369. Prohibition of structures or fixtures
           which cause obstruction in public streets- No
           person shall except with the written permission of
           a Municipality erect or set up within a municipal
           area any wall, fence, rail, post, step, booth or
           other structures or fixtures in or upon any public
           street or upon or over any open channel, well or
           tank in any street so as to form an obstruction, or
           an encroachment upon or a projection over, or to


           occupy any portion of such street, channel, drain,
           well or tank."

               "372. Secretary may without notice remove
           encroachment-         Notwithstanding        anything
           contained in this Act, the Secretary may, without
           notice, cause to be removed-
           (a) Any wall, fence, rail, step, booth or other
           structure or fixture which is erected or set up in
           contravention of the provisions of section 369;

           (b) any stall, chair, bench, box, ladder, bale, or any
           other thing whatsoever, placed or deposited in
           contravention of section 370;

           (c) Any article, whatsoever, hawked or exposed
           for sale in any public place or in any public street
           in contravention of section 371 and any vehicle,
           package, box, board, shelf or any other thing in or
           on which such article placed or kept for the
           purpose of sale."



17.Reading of section 372 shows that it starts with a

 non obstante clause and clause (a) authorises the

 Secretary to cause to be removed, without notice, any

 structure or fixture which is erected or set up in

 contravention of the provisions under section 369.

 Language of section 369 shows that this provision is


 attracted only if any structure is erected or set up

 "in or upon" any public street or upon or over any

 open channel, well or tank in any street so as to

 form an obstruction, or an encroachment upon or a

 projection over, or to occupy any portion of such

 street, channel, drain, well or tank.



18.The power under section 372 being a drastic one,

 such      power can be  exercised  only  in  extremely

 emergent situations.     Secondly a provision of this

 nature will have to be construed strictly and should

 be invoked only in cases where all requirements of

 this provision are made out.      This therefore means

 that the Corporation has failed to establish that

 they      could have legitimately taken  action  under

 section 372 of the Act.     If the facts on record are

 appreciated in the context of this provision, it is

 evident that none of the ingredients of section 369

 of the Act are in existence in this case, justifying

 initiation of proceedings under section 372 of the

 Municipality Act. In the statement filed by the

 Corporation, it is only stated that the puramboke

 land forms part of the drainage road.          Further


 Ext.P22, the order passed by the District Collector

 states that there are underground pipe line passing

 below the property.         All this therefore establish

 beyond any shadow of doubt that the demolition of the

 structures in the property in the possession of the

 appellants, which, admittedly, was carried out by the

 6th respondent Corporation on 24.10.2013, is clearly

 illegal and arbitrary and there is no justification

 whatsoever for this highhanded action.



19.Once      it  is  concluded  that  the  action  of  the

 Corporation       is totally   unjustified,  the  further

 question is what are the consequences that should

 follow.       Before we proceed further, we may refer to

 two judgments of the Apex Court in this context.      The

 first one is the judgment in Lucknow Development

 Authority v. M.K.Gupta [(1994) 1 SCC 243], where the

 Apex Court has held that public authorities acting in

 violation       of   the   constitutional  or   statutory

 provisions oppressively are accountable for their

 behaviour before courts entrusted with responsibility

 of       maintaining the  rule   of  law  and  that  when

 sufferance      is  due  to  malafide  or  oppressive or


 capricious acts of a public servant, the                   injured is

 entitled to be compensated.             The above principle has

 been explained by the following:



                "The jurisdiction and power of the courts to
           indemnify a citizen for injury suffered due to
           abuse of power by public authorities is founded as
           observed by Lord Hailsham in Cassell & Co. Ltd v.
           Broome on the principle that 'an award of
           exemplary damages can serve a useful purpose in
           vindicating the strength of law'. An ordinary
           citizen or a common man is hardly equipped to
           match    the   might   of   the    State   or     its
           instrumentalities. That is provided by the rule of
           law. It acts as a check on arbitrary and capricious
           exercise of power. In Rookes v. Barnard, it was
           observed by Lord Devlin, 'the servants of the
           Government are also the servants of the people
           and the use of their power must always be
           subordinate to their duty of service.' A public
           functionary if he acts maliciously or oppressively
           and the exercise of power results in harassment
           and agony then it is not an exercise of power but
           its abuse. No law provides protection against it. He
           who is responsible for it must suffer it.
           Compensation or damage as explained earlier may
           arise even when the officer discharges his duty
           honestly and bona fide. But when it arises due to
           arbitrary or capricious behaviour then it loses its
           individual   character    and    assumes      social


           significance. Harassment of a common man by
           public authorities is socially abhorring and legally
           impermissible. It may harm him personally but the
           injury to society is far more grievous. Crime and
           corruption thrive and prosper in the society due to
           lack of public resistance. Nothing is more
           damaging than the feeling of helplessness. An
           ordinary citizen instead of complaining and
           fighting succumbs to the pressure of undesirable
           functioning in offices instead of standing against
           it. Therefore the award of compensation for
           harassment     by  public   authorities   not   only
           compensates     the    individual,   satisfies   him
           personally but helps in curing social evil. It may
           result in improving the work culture and help in
           changing   the    outlook.   Wade    in   his  book
           Administrative Law has observed that it is the
           credit of public authorities that there are simply
           few reported English decisions on this form of
           malpractice, namely misfeasance in public offices
           which includes malicious use of power, deliberate
           maladministration and perhaps also other unlawful
           acts causing injury. One of the reasons for this
           appears to be development of law which, apart,
           from other factors succeeded in keeping a
           salutary   check   on    the   functioning   in  the
           Government     or   semi-government     offices   by
           holding the officers personally responsible for
           their capricious or even ultra vires action resulting
           in injury or loss to a citizen by awarding damages
           against them. Various decisions rendered from
           time to time have been referred to by Wade on


           Misfeasance by Public Authorities. We shall refer
           to some of them to demonstrate how necessary it
           is for our society. In Ashby v. White the House of
           Lords invoked the principle of 'ubi jus ibi
           remedium' in favour of an elector who was
           wrongfully prevented from voting and decreed the
           claim of damages. The ratio of this decision has
           been applied and extended by English Courts in
           various situations. In Roncarelli v. Duplessis the
           Supreme Court of Canada awarded damages
           against the Prime Minister of Quebec personally
           for directing the cancellation of a restaurant-
           owner's liquor licence solely because the licensee
           provided bail on many occasions for fellow
           members of the sect of Jehovah's Witnesses,
           which was then unpopular with the authorities. It
           was observed that, 'what could be more malicious
           than to punish this licensee for having done what
           he had an absolute right to do in a matter utterly
           irrelevant to the Alcoholic Liquor Act ? Malice in
           the proper sense is simply acting for a reason and
           purpose knowingly foreign to the administration,
           to which was added here the element of
           intentional punishment by what was virtually
           vocation outlawry'. In Smith v. East Elloe Rural
           District Council the House of Lords held that an
           action for damages might proceed against the
           clerk of a local authority personally on the ground
           that he had procured the compulsory purchase of
           the plaintiff's property wrongfully and in bad
           faith. In Farrington v. Thomson, the Supreme
           Court of Victoria awarded damages for exercising


           a power the authorities knew they did not possess.
           A licensing inspector and a police officer ordered
           the plaintiff to close his hotel and cease supplying
           liquor. He obeyed and filed a suit for the resultant
           loss. In Wood v. Blair, a dairy farmer's
           manageress contracted typhoid fever and the local
           authority served notices forbidding him to sell
           milk, except under certain conditions. These
           notices were void, and the farmer was awarded
           damages on the ground that the notices were
           invalid and that the plaintiff was entitled to
           damages for misfeasance. This was done even
           though the finding was that the officers had
           acted from the best motives.

                 Today the issue thus is not only of award of
           compensation but who should bear the brunt. The
           concept of authority and power exercised by
           public functionaries has many dimensions. It has
           undergone tremendous change with passage of
           time and change in socio-economic outlook. The
           authority empowered to function under a statute
           while exercising power discharges public duty. It
           has to act to sub serve general welfare and
           common good. In discharging this duty honestly
           and bona fide, loss may accrue to any person. And
           he   may   claim   compensation    which    may   in
           circumstances be payable. But where the duty is
           performed capriciously or the exercise of power
           results in harassment and agony then the
           responsibility to pay the loss determined should
           be whose ? In a modern society no authority can




           arrogate to itself the power to act in a manner
           which is arbitrary. It is unfortunate that matters
           which require immediate attention linger on and
           the man in the street is made to run from one end
           to other with no result. The culture of window
           clearance appears to be totally dead. Even in
           ordinary matters a common man who has neither
           the political backing nor the financial strength to
           match the inaction in public oriented departments
           gets frustrated and it erodes the credibility in
           the system. Public administration, no doubt
           involves a vast amount of administrative discretion
           which   shields  the    action  of   administrative
           authority. But where it is found that exercise of
           discretion was mala fide and the complainant is
           entitled to compensation for mental and physical
           harassment then the officer can no more claim to
           be under protective cover. When a citizen seeks
           to recover compensation from a public authority in
           respect of injuries suffered by him for capricious
           exercise of power and the National Commission
           finds it duly proved then it has a statutory
           obligation to award the same. It was never more
           necessary than today when even social obligations
           are regulated by grant of statutory powers. The
           test of permissive form of grant is over. It is now
           imperative and implicit in the exercise of power
           that it should be for the sake of society. When
           the court directs payment of damages or
           compensation against the State the ultimate
           sufferer is the common man. It is the tax payers'
           money which is paid for inaction of those who are


           entrusted under the Act to discharge their duties
           in accordance with law. It is, therefore, necessary
           that the Commission when it is satisfied that a
           complainant is entitled to compensation for
           harassment or mental agony or oppression, which
           finding of course should be recorded carefully on
           material and convincing circumstances and not
           lightly, then     it should further direct the
           department concerned to pay the amount to the
           complainant from the public fund immediately but
           to recover the same from those who are found
           responsible for such unpardonable behaviour by
           dividing it proportionately where there are more
           than one functionaries."


20.Again, in N.Nagendra Rao & Co. v. State of A.P.

 [(1994) 6 SCC 205], the Apex Court has held thus in

 paragraphs 25 and 27:



           "No civilized system can permit an executive to
           play with the people of its country and claim that
           it is entitled to act in any manner as it is
           sovereign. The concept of public interest has
           changed with structural change in the society. No
           legal or political system today can place the State
           above law as it is unjust and unfair for a citizen to
           be deprived of his property illegally by negligent
           act of officers of the State without a remedy.
           From sincerity, efficiency and dignity of State as


           a juristic person, propounded in nineteenth
           century as sound sociological basis for State
           immunity the circle has gone round and the
           emphasis now is more on liberty, equality and the
           rule of law. The modern social thinking of
           progressive societies and the judicial approach is
           to do away with archaic State protection and place
           the State or the Government on a par with any
           other    juristic legal   entity.  Any   watertight
           compartmentalization of the functions of the
           State    as   "sovereign  and    non-sovereign"   or
           "Governmental and nonGovernmental" is not sound.
           It is contrary to modern jurisprudential thinking.
           The need of the State to have extraordinary
           powers    cannot   be   doubted.    But   with  the
           conceptual change of statutory power being
           statutory duty for sake of society and the people
           the claim of a common man or ordinary citizen
           cannot be thrown out merely because it was done
           by an officer of the State even though it was
           against law and negligent. Needs of the State,
           duty of its officials and right of the citizens are
           required to be reconciled so that the rule of law in
           a Welfare State is not shaken. Even in the
           "financial instability of the infant American
           States rather than to the stability of the
           doctrine's theoretical foundation", or because of
           "logical and practical ground", or that "there could
           be no legal right as against the State which made
           the law" gradually gave way to the movement from,
           "State irresponsibility to State responsibility". In
           Welfare State, functions of the State are not


           only defence of the country or administration of
           justice or maintaining law and order but it extends
           to regulating and controlling the activities of
           people in almost every sphere, educational,
           commercial, social, economic, political and even
           marital. The demarcating line between sovereign
           and non-sovereign powers for which no rational
           basis survives has largely disappeared. Therefore,
           barring functions such as administration of
           justice, maintenance of law and order and
           repression of crime etc. which are among the
           primary     and   inalienable   functions    of   a
           constitutional Government, the State cannot claim
           any immunity. The determination of vicarious
           liability of the State being linked with negligence
           of its officers, if they can be sued personally for
           which there is no dearth of authority and the law
           of misfeasance in discharge of public duty having
           marched ahead, there is no rationale for the
           proposition that even if the officer is liable the
           State cannot be sued. The liability of the officer
           personally was not doubted even in Viscount
           Canterbury. But the Crown was held immune on
           doctrine of sovereign immunity. Since the doctrine
           has become outdated and sovereignty now vests in
           the people, the State cannot claim any immunity
           and if a suit is maintainable against the officer
           personally, then there is no reason to hold that it
           would not be maintainable against the State.

               A law may be made to carry out the primary or
           inalienable functions of the State. Criminal


           Procedure Code is one such law. A search or
           seizure effected under such law could be taken to
           be an exercise of power which may be in domain of
           inalienable function. Whether the authority to
           whom this power is delegated is liable for
           negligence in discharge of duties while performing
           such functions is a different matter. But when
           similar powers are conferred under other statute
           as incidental or ancillary power to carry out the
           purpose and objective of the Act, then it being an
           exercise of such State function which is not
           primary    or   inalienable, an   officer   acting
           negligently is liable personally and the State
           vicariously. Maintenance of law and order or
           repression of crime may be inalienable function,
           for proper exercise of which the State may enact
           a law and may delegate its functions, the violation
           of which may not be sueable in torts, unless it
           trenches into and encroaches on the fundamental
           rights of life and liberty guaranteed by the
           Constitution. But that principle would not be
           attracted where similar powers are conferred on
           officers who exercise statutory powers which are
           otherwise than sovereign powers as understood in
           the modern sense. The Act deals with persons
           indulging in hoarding and black marketing. Any
           power for regulating and controlling the essential
           commodities and the delegation of power to
           authorised officers to inspect, search and seize
           the property for carrying out the object of the
           State cannot be a power for negligent exercise of
           which   the   State    can  claim  immunity.    No


           constitutional system can, either on State
           necessity or public policy, condone negligent
           functioning of the State or its officers."



21.     This, therefore, means that when a citizen of this

 Country has suffered on account of the oppressive and

 capricious acts of a public authority which is vested

 with the powers, to be discharged for the benefit of

 the public, such citizen is entitled to have his

 injuries remedied appropriately.



22.From the facts that we have discussed, it is evident

 that without any justification whatsoever and in a

 most capricious and arbitrary manner, the Corporation

 has demolished the homestead where the appellants

 were residing.          By demolishing the roof under which

 the appellants lived and slept, their precious rights

 under Article 21 of the Constitution of India, which

 guarantees the right to life to any citizen of this

 Country, has been mercilessly violated.                 Right to

 life is not a mere right for an animal existence but

 is the right to lead a meaningful life.              In our view,

 that right for a meaningful life has been deprived of


 by the Corporation in the instant case.           We are

 therefore satisfied that this is a case where the

 appellants      are  entitled  to   have  their  injuries

 remedied.



23.We, therefore, set aside the judgment of the learned

 single Judge and dispose of this appeal declaring

 that the act of the 6th respondent Corporation in

 demolishing the portion of the residential building

 where the appellants were residing without any notice

 is most illegal, capricious and arbitrary.          As a

 consequence, we issue a writ of mandamus directing

 the       6th respondent   Corporation  to  restore   the

 demolished portion of the appellants' residential

 building       as  it  was   before  its   demolition  on

 24.10.2013.        If, for any reason, the Corporation

 fails to restore the structure in the manner as

 ordered       above  within  three   months from the date

 of       receipt  of  a   copy  of  this   judgment, the

 Corporation      will,  at   any  rate  within   2  weeks

 thereafter, pay to the appellants Rs.2 lakhs for

 restoration       of  the   demolished  portion  of   the

 building.       Appellants will thereupon be entitled to




 restore the demolished portion of the building and in

 case they incur any amount in addition to Rs.2 lakhs

 paid to them, the appellants will be entitled to

 recover the balance amount from the Corporation in

 accordance   with law.      For  the  highhanded  and

 oppressive action of the 6th respondent, we direct the

 Corporation  to  pay  an   amount  of  Rs.1  lakh  as

 compensation to the appellants which shall be paid

 within 4 weeks from the date of receipt of a copy of

 this judgment.  It is made clear that it will be open

 to the Corporation to fix liability on any officer

 who is responsible for the illegality and to recover

 the amounts paid by it to the appellants from such

 officer concerned in accordance with law.



 The judgment of the learned single Judge is set aside

 and the appeal is disposed of as above.

                                     Sd/-
                               ANTONY DOMINIC, Judge.

                                   Sd/-
                                 P.V.ASHA, Judge.

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