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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