Andhra HC (Pre-Telangana)
Nerella Dhanunjaya vs The Commissioner, Municipal ... on 12 December, 2006
Equivalent citations: 2007(3)ALD116
ORDER V.V.S. Rao, J.
1. A short question as to the liability of a Municipal body to compensate the owner of a house, which is demolished by such Municipality without notice, would arise in this writ petition. The background of the case, in brief, is as under.
2. The petitioner is owner of an old house bearing No. 13-1-156 (old No. 13/134) situated at SVN Road, Warangal, within the jurisdiction of the Municipal Corporation of Warangal (the Corporation, for brevity). On 14.03.1995 at 10.30 a.m., several employees of respondents 1 and 2 including Building Inspector, Sri Anwar Ali came to petitioner's house with Bulldozer and started demolishing the same. The petitioner and his son unsuccessfully tried to stop them. The petitioner and his son were allegedly detained by the Police Officer of P.S.Matwada. They were released at 10.00 p.m., on the same day. When they came home, petitioner found his house demolished to the extent of 5 to 8 feet in its entire width of 40 feet. The petitioner also alleges that earlier on 17.11.1994 at the instance of third respondent, the then District Collector, respondents 1 and 2 tried to demolish the house when he protested. He allegedly sent telegraphic notices to respondents 1 to 5 and 7 and 8. But, in spite of the same, respondents demolished the petitioner's property. The petitioner also alleges that he suffered loss of building to a tune of Rs. 75,000/-, and Rs. 75,000/- towards loss in business stock and also entitled for a sum of Rs. 1,00,000/- for other damages. He, therefore, filed instant writ petition seeking a writ of Mandamus declaring the action of respondents 1 and 2 in demolishing the petitioner's house as illegal and arbitrary, and also seek a consequential direction to respondents 1 and 2 to pay damages a sum of Rs. 1,50,000/- being damages to the house and business stock and Rs. 1,00,000/- towards unliquidated damages. He also seeks a direction for investigation of the offences against the culprits by an officer above the rank of Superintendent of Police.
3. Respondents 1, 2 and 8 filed separate counter affidavits, to which petitioners have filed reply affidavit.
4. The Commissioner of Warangal Corporation states that when there was a demand for widening SVN Road by residents of the area and they are agreed to forego their properties affected by road widening, the same was taken up in 1994. The road widening work was completed, but the petitioner's house was left untouched. The petitioner was requested to remove the affected portion. As he did not consent, notice, dated 10.03.1995 was issued. He refused to receive the same and the same was pasted on the wall of the petitioner's house. The allegation that on 17.11.1994, at the instance of third respondent, respondent 1 and 2 tried to demolish structures is denied. The receipt of telegraphic notice, dated 17.11.1994, is also denied. It is further stated that though most of the residents in the locality removed their affected portions. But debris was not removed as base platforms could not be removed manually. The residents of the area requested the help of the Corporation in removing these structures. The Corporation also sanctioned amounts for shifting and construction of the drain on either side of the road. So as to complete the work early, a bulldozer of Agro Industries was brought on 10.03.1995 (for removing debris) giving prior information and intimation to all the respondents on either side of the road. While removing the debris on either side of the petitioner's house, the wall facing the road collapsed due to vibration of Bulldozer as existing structure of the petitioner's house is a dilapidated one. The allegation that the petitioner's house was demolished beyond repairs is denied. The allegation that the petitioner suffered Rs. 75,000/- towards structural loss and Rs. 75,000/- towards loss of business stock is also denied.
5. The second respondent in their counter alleged that it prepared a master plan for widening the road from Gemini Talkies to Railway Gate showing all the structure affected to the extent of 50 feet on either side of the road. The work was taken up due to cooperation of the land owners who agreed to forego land free of cost. The petitioner elevated huge structure contravening Zoning Regulations and Master Plan Regulations without obtaining building permission. He filed the suit being O.S. No. 279 of 1994 on the file of the Court of the Additional Subordinate Judge, Warangal, for permanent injunction, which was dismissed on 14.02.2000. He then filed A.S. No. 53 of 2000 on the file of the Court of the IV Additional District Judge, Warangal and the same was allowed on 21.04.2004. The petitioner suppressed this information from the Court, and therefore, the writ petition is not maintainable.
6. The eighth respondent - Sub Inspector of Police, P.S., Matwada, filed counter affidavit denying the petitioner's allegation that the petitioner and his son were detained in the police station as there was no mention in the general diary maintained by the eighth respondent. The eighth respondent, however, states that the first respondent as a part of widening work demolished various houses abutting the road, and that during such widening work, the petitioner's house might have been demolished along with other buildings.
7. Learned Counsel for the petitioner submits that the first respondent demolished part of the petitioner's house without giving any notice and therefore, the petitioner is entitled to seek a declaration and also direction to pay the damages in a sum of Rs. 1,50,000/- as special damages and Rs. 1,00,000/- as general damages. Secondly, he would urge that respondents 7 and 8 have impinged upon the liberty of the petitioner of detaining him from morning to night on 14.03.1995 without disclosing the reason for detention, and therefore, they are liable for penal action under law. Per contra, the two learned standing counsel for respondents 1 and 2 and learned Assistant Government Pleader for Home submit that a writ petition for awarding compensation cannot be maintained and the petitioner's remedy is to approach the civil Court. The learned standing counsel for first respondent submits that notice was issued to the petitioner under Section 406 of Hyderabad Municipal Corporations Act, 1955 (as applicable to Warangal Corporation), and that when the petitioner refused to receive notice, the same was affixed to the wall of the petitioner's house, he has also produced the original file in support of these contentions.
8. Before considering the rival points on merit, it is necessary to consider the question whether a writ petition for awarding compensation for violation of rights under Article 14 of the Constitution of India or for illegal acts of the public authorities is maintainable? The power of the Constitutional Court to award compensation for constitutional tort is well settled in Indian Constitution Law. Starting from Rudul Shah v. State of Bihar to Sube Singh v. State of Haryana , in umpteen number of cases, Supreme Court held that awarding of compensation for deprivation of life and liberty alone is a public law remedy available to the victim of assault, battery and false imprisonment by police officer. It was held that only when the fundamental right under Article 21 of Constitution of India is violated, infringed or tinkered by public authorities, public law remedy of compensation for constitutional tort would be available. In K.P. Hussain Reddy v. Executive Engineer, M.I. Division, Nandyal 2003 (1) ALD 435, this Court after referring to various Indian and British authorities on constitutional tort noticed emerging principles as below.
(i) Torts like assault, battery, and false imprisonment which are trespass to person by Police Officer and investigating agencies which are not authorised under law are Constitutional Torts.
(ii) Awarding of compensation is public law remedy and available in a claim for deprivation of life and liberty alone. The compensation awarded is for the pecuniary and non-pecuniary loss suffered by the person due to illegal detention/imprisonment and is given to recompense for the inconvenience and distress suffered by the person.
(iii) The order of compensation is in the nature of palliative and is passed to mulct the violators of the fundamental rights in payment of monetary compensation.
(iv) When a person is arrested and imprisoned with malicious intention his constitutional and legal rights are said to be invaded. The malice and invasion of the right is not washed away by setting the person free and in appropriate cases the Court has jurisdiction to award compensation to the victim.
(v) The public law remedy of monetarily compensating the violation of fundamental rights is part of the constitutional scheme based on strict liability for such contravention of rights and therefore the principle of sovereign immunity does not apply as it applies in private law.
(vi) Judicially evolved right to compensation in public law is available for breach of public duty by the State of not protecting the fundamental right, but it is given for infringement of inalienable right to life and by way of applying balm to the wounds of the deceased family.
(vii) For the tortuous acts of the Government Officers and Police Officers, the State is liable to pay compensation for violation of fundamental rights to life and liberty; and
(viii) The order for awarding compensation need not be in the coercive form. It can be by way of declaration of the right of the person to be paid by the Government certain amount to be assessed by the Court. This is especially so in a case where fundamental right to property is breached in violation of law.
9. Therefore, only in the cases of violation of Article 21 of Constitution of India alone, a citizen can seek adequate compensation from this Court notwithstanding the availability of civil law remedy for enforcing tortuous liability. This view of this Court is the law of the land in view of the decisions of Supreme Court in Rabindra Nath Ghosal v. University of Calcutta , Sube Singh (supra) and Hindustan Paper Corporation Limited v. Ananta Bhattacharjee .
10. In Rabindra Nath Ghosal (supra), the appellant appeared for M.A., Examination in Islamic History and Culture in November, 1984. Though University of Calcutta announced the results, the appellant's result was not declared. After writing to University to declare his result, he filed a writ petition before the Calcutta High Court seeking appropriate directions. In the meanwhile on 12.07.1991 he was declared to have failed in the examination. A learned single Judge of the High Court appointed a Committee to investigate into the reasons for the delay in declaration of the appellant's result. The Committee found that the appellant knew that he failed in the examination, and that some of the officials in the examination branch were negligent in discharging of duties. Therefore, the learned single Judge directed the University to pay the appellant Rs. 60,000/- as monetary compensation as damages, and take appropriate action against erring officials. A Division Bench of the High Court, however, did not agree with the direction to pay monetary compensation as it felt that it was not a fit case to invoke public law to award compensation. In appeal to the Supreme Court it was contended that awarding of compensation in public law domain is amply justified on the strength of decided cases. A Division Bench of the Supreme Court, after referring to Nilabati Behera v. State of Orissa , Lucknow Development Authority v. M.K. Gupta and Common Cause v. Union of India observed that the Courts have obligation to satisfy the social aspirations of the citizens and grant compensation as damages in public law proceedings. For that purpose, the Court can mould the relief in proceedings under Articles 32 and 226 of Constitution of India seeking enforcement or protection of fundamental rights and grant compensation. It is done by penalizing the wrongdoer and fixing the liability for the public wrong on the State, which has failed to protect the fundamental rights of the citizens. But, ... it would not be correct to assume that every minor infraction of public duty by every public officer would commend the court to grant compensation in a petition under Articles 226 and 32 by applying the principle of public law proceeding. The Court in exercise of extraordinary power under Articles 226 and 32 of the Constitution, therefore, would not award damages against public authorities merely because they have made some order which turns out to be ultra vires, or there has been some inaction in the performance of the duties unless there is malice or conscious abuse. Before exemplary damages can be awarded it must be shown that some fundamental right under Article 21 has been infringed by arbitrary or capricious action on the part of the public functionaries and that the sufferer was a helpless victim of that act.
In Hindustan Paper Corporation (supra), the appellant, which is Government of India undertaking, did not supply white paper to respondents who placed orders pursuant to Government scheme for such supply for printing of school text books, exercise books and examination answer sheets in the States and Union Territories. The writ petition filed by respondent in Calcutta High Court was allowed ex parte directing release of white paper to the respondents. In the appeal before the Division Bench, having noticed that the amount paid by respondents was returned without interest subsequent to discontinuation of the scheme, the Division Bench of the High Court directed to refund the amount advanced with interest at 12 per cent per annum. The Division Bench also held that mere refund of amount would not absolve the appellant from the liability to compensate the respondents in cash in consideration of the default. The Supreme Court having noticed that the Division Bench awarded interest by way of compensation considered the question whether remedy under Article 226 is available for awarding compensation. While answering the question in the negative, it was ruled as under.
11. Public law remedy for the purpose of grant of compensation can be resorted to only when the fundamental right of a citizen under Article 21 of the Constitution is violated and not otherwise. It is not every violation of the provisions of the Constitution or a statute which would enable the court to direct grant of compensation. The power of the court of judicial review to grant compensation in public law remedy is limited. The instant case is not one which would attract invocation of the said rule. It is not the case of the respondents herein that by reason of acts of commission and omission on the part of the appellant herein the fundamental right of the respondents under Article 21 of the Constitution has been violated.
12. Sube Singh (supra) is a case taken up by the Supreme Court in their original jurisdiction under Article 32, on a letter addressed by the petitioner alleging illegal detention, custodial torture and harassment of family members. The petitioner also sought compensation for himself, his wife and daughters for social, physical and financial loss and return of his licensed gun, gold ornaments and other belongings. A three Judge Bench of Supreme Court disposed of the writ petition declining to award compensation while ordering an enquiry by CBI to ensure that all police officers responsible are prosecuted. The apex Court also observed that the petitioner therein can seek remedy in civil Court for compensation as well as under Section 357 of Code of Criminal Procedure, 1973. After referring to some of the decided cases on this branch of law, the Supreme Court observed that in all cases of violation of Article 21 of Constitution of India, the writ petition under Articles 32 and 226 would not lie for compensation. It is apposite to notice the following observations.
13. Cases where violation of Article 21 involving custodial death or torture is established or is incontrovertible stand on a different footing when compared to cases where such violation is doubtful or not established. Where there is no independent evidence of custodial torture and where there is neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of human rights violation, by persons having criminal records in a routine manner for awarding compensation. That may open the floodgates for false claims, either to mulct money from the State or as to prevent or thwart further investigation. The courts should, therefore, while zealously protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable the police to discharge their duties fearlessly and effectively. While custodial torture is not infrequent, it should be borne in mind that every arrest and detention does not lead to custodial torture.
Strong reliance is placed by learned Counsel for the petitioner on a decision of the Division Bench in Keshav Prashad v. Commissioner and Special Officer, MCH, Hyderabad . In the said Judgment, this Court having held that property belonging to the appellant therein was demolished illegally, a sum of Rs. 1,00,000/- was awarded as damages. In view of the subsequent Judgments of the Supreme Court, referred to hereinabove, the decision of the Division Bench may not be of much assistance to the petitioner. As held by the Supreme Court, in such an event the remedy is not a writ petition but a suit. In view of the decision of this Court in K.P.Hussain Reddy (supra) as well as the three Judgments of the Supreme Court referred to hereinabove, the petitioner has to seek his remedy in civil Court by filing a suit for compensation against those officers responsible for the alleged action. Insofar as the contention of the learned standing counsel for first respondent that a notice was issued to the petitioner and that he refused to receive the same, this Court is not able to record any finding because the file produced before this Court (File No. 65 itself commences from 16.03.1995) does not contain any report of those subordinate officers, who went to serve the notice on the petitioner and who affixed such refused notice on the petitioner's premises. This is the matter, which has to be further examined by the civil Court as and when the petitioner files the suit. Insofar as the allegation that the petitioner and his son were detained on 14.03.1995 by eighth respondent is concerned, the same is categorically denied and therefore, no definite finding can be recorded on this question. The petitioner may also subject to proof, seek remedy in the civil Court on this aspect also.
14. In the result, liberty is reserved to the petitioner to file a suit for compensation for alleged illegal detention. Be it made clear that as and when petitioner files suit/suits, the civil Court should decide the matter subject to evidence and proof, without being influenced by any of the observations made hereinabove.
15. The writ petition, for the above reasons, is dismissed with the observations as above. There shall be no order as to costs.