Karnataka High Court

Sri T N Chandrashekar vs Government Of Karnataka on 4 July, 2024

                                                            R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 04TH DAY OF JULY, 2024

                         BEFORE

          THE HON'BLE MR. JUSTICE K. V. ARAVIND

          WRIT PETITION No.44001/2011 (GM-RES)

BETWEEN:

1.     SRI T. N. CHANDRASHEKAR,
       S/O SRI N. NANJAPPA,
       AGED ABOUT 53 YEARS,
       PROP: SRI ASHWINI TEXTILE,
       NARASIMHA CIRCLE, KALYAGATE,
       MAGADI TOWN,
       RAMANAGARA DISTRICT.
                                            ...PETITIONER
(BY SRI K. N. DAYALU, ADVOCATE)

AND:

1.   GOVERNMENT OF KARNATAKA,
     BY ITS CHIEF SECRETARY,
     VIDHANA SOUDHA,
     BANGALORE 560 001.

2.   THE DEPUTY COMMISSIONER,
     RAMANAGARAM DISTRICT,
     RAMANAGARAM.

3.   THE TAHSILDAR,
     MAGADI TALUK,
     MAGADI.

4.   SRI M. S. NIRANJAN BABU,
     THE TAHSILDAR,
     MAGADI TALUK,
     MAGADI.
                               2


5.   THE ASSISTANT EXECUTIVE ENGINEER,
     PWD, MAGADI SUB DIVISION,
     MAGADI TALUK.

6.   SRI A. NATARAJ,
     THE ASSISTANT EXECUTIVE ENGINEER
     PWD, MAGADI SUB DIVISION,
     MAGADI TALUK.

7.   THE MAGADI POLICE STATION,
     BY ITS INSPECTOR,
     MAGADI TOWN, MAGADI.

8.   SRI H. RAVI,
     CIRCLE INSPECTOR OF POLICE,
     MAGADI TALUK.

9.   SRI RAVI PRAKASH,
     SUB INSPECTOR,
     MAGADI POLICE STATION,
     MAGADI.

10 . MAGADI TOWN MUNICIPALITY,
     BY ITS CHIEF OFFICER,
     MAGADI TOWN,
     MAGADI.
                                         ...RESPONDENTS

(BY SRI S.H. RAGHAVENDRA, AGA FOR R1 TO R3, R5 & R7;
SRI G. RAVISHANKAR, ADVOCATE for
SRI A.V. GANGADHARAPPA, ADVOCATE FOR R10;
R4, R6, R8 & R9 SERVED AND UNREPRESENTED)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT TO
THE RESPONDENTS FOR PRODUCTION OF THE NOTIFICATION
FOR WIDENING THE ROAD AND FORMATION OF DRAINAGE AT
B.K. ROAD, MAGADI TOWN; DECLARE THAT DEMOLITION OF
STRUCTURE ON THE SCHEDULE-B PROPERTY IN OCCUPATION
OF PETITIONER BY RESPONDENTS HEREIN IS ILLEGAL,
                                    3


UNLAWFUL    AND  OPPOSED   TO                LAW       WITHOUT     ANY
NOTIFICATION WHATSOEVER ETC.

     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 11.06.2024, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:

                                ORDER

This writ petition preferred seeking the following

reliefs;

"i) to issue mandatory direction to the respondents for production of the Notification for widening the road and formation of drainage at B.K.Road, Magadi Town;

ii) to declare that the demolition of the structure on the schedule B property in occupation of the petitioner by the respondents herein is illegal, unlawful and opposed to law without any notification whatsoever;

iii) to direct the respondents to restore the suit building in O.S.No.307/2011 to the original position at the costs of the respondents;

iv) to award compensation for illegal demolition of the schedule B property in a sum of Rs.72,00,000/- (Rupees seventy two lakhs);

v) and prays for such other relief or reliefs as this Hon'ble court deems fit in the circumstances of the case, including the costs of the above petition, in the interest of justice and equity."

2. Brief facts,

The petitioner is tenant under one K.S.Nataraj in

respect of property bearing Municipal Katha No.1951/1822

situated at Narasimha circle, Kalyagate, Magadi Town,

Magadi, Ramanagara District, measuring East-West 19 feet

and North-South 76 feet. This property is referred to as

'Schedule-B' property in the writ petition. Schedule-B

property is part of larger extent of property measuring

East-West towards Southern side 34 feet, towards

Northern side 36½ feet, towards North-South on the

Eastern side 59 feet and towards Western side 74 feet.

This property is referred to as 'Schedule-A' property.

3. It is stated that the petitioner entered into

agreement of sale on 09.09.2002 with K.S.Nataraj for

purchase of Schedule-B property. It is stated that the

remaining part of Schedule-A property was in possession

of Smt. Radha Balakrishna. The Schedule-B property was

purchased by Smt. Radha Balakrishna under registered

Sale Deed 13.04.2004 during subsistence of earlier

agreement of sale. As the petitioner was pressurized to

vacate Schedule-B property, he preferred

O.S.No.307/2011 on the file of the Additional Civil Judge,

Magadi. The Civil Court by order dated 09.08.2011

granted interim order of temporary injunction restraining

demolition, dispossession, interference and obstruction

with the plaintiff's possession of Schedule-B property.

4. It is further stated that as the petitioner did not yield

to the pressure of Smt. Radha Balakrishna to vacate the

Schedule-B property, under the guise of removing the

encroachment on the road, without following any due

process of law, the authorities in collusion demolished the

Schedule-B property. The petitioner aggrieved against the

illegal demolition of Schedule-B property is before this

Court in this petition.

5. Learned counsel for the petitioner submits that he

was running textile shop in Schedule-B property as tenant

under K.S.Nataraj. He entered into agreement of sale of

Schedule-B property with K.S.Nataraj. During subsistence

of agreement of sale, property was illegally sold in favour

of Smt. Radha Balakrishna under registered Sale Deed

13.04.2004. After the sale deed, the petitioner was

pressurized to vacate Schedule-B property.

6. Learned Counsel submits that petitioner preferred

O.S.No.307/2011 on the file of the Additional Civil Judge,

Magadi. The Civil Court passed an order of injunction on

09.08.2011 injuncting the defendants from demolition,

dispossession, interference and obstruction with plaintiff's

peaceful possession. Respondent No.6-Assistant Executive

Engineer, PWD, Magadi Sub-Division, Magadi Taluk, filed

an application in the said suit for impleading and prayed to

vacate the restraining order. During the operation of

injunction order and pendency of the applications,

respondents have illegally demolished the building at the

instance of so-called landlord.

7. Learned counsel submits that no intimation or notice

is issued to the petitioner. The respondents have not even

allowed the petitioner to remove the stock (garments) in

the shop. As a consequence of illegal action of demolition

by the respondents, the petitioner has suffered loss of

Rs.72,00,000/-.

8. Learned counsel further submits that No Objection

Certificate at Annexure-R.1 said to have been issued by

Smt. Radha Balakrishna is a concocted document. Further

submits that the said No Objection Certificate is vague and

the respondents have relied on it to defend their illegal

action.

9. Learned counsel further submits that Schedule-B

property was measuring East-West 19 feet and North-

South 76 feet. Even if it is to be assumed that No

Objection Certificate is valid, the no objection is only to

demolish the property to an extent of 12.5 feet whereas,

the respondents have demolished the entire building. It is

submitted that demolition was not to remove the

encroachment, however to assist the landlord in evicting

the petitioner. Learned counsel submits that the

authorities committed illegality in demolishing the building

while the injunction order passed by the Civil Court was in

operation.

10. Sri. S.H. Raghavendra, learned Additional

Government Advocate for respondent Nos.1 to 3, 5 and 7,

by referring to Statement of Objections submits that the

building in question was on the encroached land of the

State Highway. To remove the encroachments, the

building has been demolished. Learned counsel could not

dispute the fact that no notification or orders are issued for

demolition of the structures. Learned counsel submits that

when the owner of the land has stated no objection for

demolition of the building, petitioner being a tenant under

the landlord has no right to question the action of

demolition. Learned counsel submits that the entire

process of demolition was to remove the encroachment

and to widen the road to ease out the traffic with public

interest at large.

11. Learned Additional Government Advocate further

submits that the demolition of building was duly informed

to the petitioner, the petitioner having failed to co-operate,

the respondents were constrained to take the assistance of

Police and remove the encroachment. He further submits

that the claim of damages suffered by the petitioner is

without any basis and is not maintainable in this petition.

12. Sri. G.Ravishankar, learned counsel for

Sri.A.V.Gangadharappa, learned counsel for respondent

No.10 submits that the nature of dispute raised in the writ

petition is civil in nature and the petitioner has the remedy

before the competent civil court. Learned counsel submits

that respondent No.10 has not issued any notification for

widening the road nor demolished any structure. Learned

counsel submits that as respondent No.10 was not

involved in the process of demolition, he is not a necessary

party in the present writ petition.

13. Heard Sri.K.N.Dayalu learned counsel for the

petitioner, Sri S.H.Raghavendra, Additional Government

Advocate for respondent Nos.1 to 3, 5 and 7 and

Sri.G.Ravishankar, learned counsel for

Sri.A.V.Gangadharappa, learned counsel for respondent

No.10.

R.4, 6, 8 and 9 are served and unrepresented.

Perused the writ petition papers.

14. The petitioner specifically contends that the road

subject matter of widening is not notified as State

Highway. It is stated that no notification or orders were

issued for widening the road and formation of drains.

15. The respondent-State in the statement of objections

has categorically stated that no notification or orders is

issued for demolition of structures. The State contends

that the building/textile shop was unauthorized structure

by encroachments on the State Highway. The illegal

encroachment has been removed for widening of road. It

is further submitted that the owner of the building has

given No Objection to remove the encroachment. In view

of No Objection by the landlord, no opportunity is to be

given to the petitioner. In other words, it is the stand of

the State Government that there is no necessity to issue

any notice/notification or order to demolish the structure

by encroachment on the State Highway.

16. It is necessary to extract the relevant provisions

prescribing the procedure and requirement to be followed

while removing the illegal encroachment. Section 23 of

the Karnataka State Highways Act, 1964, [hereinafter

referred to as 'Act' for short], reads as under;

23. Prevention of encroachment.--(1) When as a result of check of highway boundaries made or otherwise it transpires that an encroachment has taken place on a highway, the Highway Authority

or the officer authorised under sub-section (1) of section 21 shall serve a notice on the person responsible for the encroachment or his representative requiring him to remove such encroachment and restore the land its original condition before the encroachment within the period specified in the notice.

(2) The notice shall specify the land encroached upon and the time-limit within which such encroachment shall be removed and shall also state that failure to comply within the specified period shall render the person liable to prosecution and also to summary eviction.

(3) If the encroachment is not removed within the time limit specified in the notice and no valid cause is shown for non-compliance, the Highway Authority or the authorised officer referred to in sub-section (1) may prosecute such person for his having made or caused the encroachment and for his failure to remove it within the specified time.

(4) Where the encroachment is made for the purpose of exposing articles for sale, opening temporary booths for vending or other like purpose of a trivial nature, the Highway Authority or the authorised officer referred to in sub-section (1) may with the help of the police, if necessary, have such encroachment summarily removed without

issuing a notice as required by sub-section (1) or in lieu of removal of encroachment, may give the person responsible the encroachment option of executing a lease in favour of the Highway Authority on payment of rent for the area encroached.

(5) When the encroachment is of a temporary nature and can easily be removed, but is not such as can be described as trivial within the meaning of sub-section (4), the Highway Authority or the authorised officer referred to in sub-section (1) may in addition to or in lieu of prosecuting the person responsible for the encroachment under sub-section (3) have the encroachment summarily removed with the assistance of the police, if necessary.

(6) Where the encroachment is of such a nature that its immediate removal is considered essential in the interests of safety of traffic on the highway or the safety of any structure forming part of the highway, the Highway Authority or the authorised officer referred to in sub-section (1) may in addition to the prosecution of the person under sub-section (3), either,--

(i) have such protective work as may be feasible at a reasonable cost carried

out so as to minimise the danger to traffic on the highway, or

(ii) have the encroachment removed with the help of the police, if necessary."

Underlining mine

17. As per Sub-section (2) of Section 23 of the Act, the

Highway Authority or the officer authorized should specify

the land encroached upon and the time limit to remove the

encroachment; Sub-section (3) provides for consequences;

and Sub-section (6) empowers the Highway Authority or

the authorized officer to remove the encroachment with

the help of Police. However, the actions contemplated

under Sub-sections (3) and (6) of Section 23 of the Act

would mandate show cause notice on the person

responsible for the encroachment or his representative

requiring him to remove such encroachment.

18. In the case on hand, it is an undisputed fact that no

notice has been issued to the petitioner or to the

representative. The contention of the respondent-State

that to remove encroachment notice need not be issued is

contrary to the procedure prescribed under Section 23 of

the Act. The demolition of the building i.e. Schedule-B

property is illegal and contrary to Section 23 of the Act.

19. The contention of the respondents that No Objection

has been issued by the owner of the property, in the

circumstances, no notice needs to be issued to the

petitioner cannot be accepted. No Objection Certificate at

Annexure-R1 reads as under;

" No objection certificate

I, the undersigned being owner of the property bearing khata No.1951/1, 1922/1 of Narasimha Circle, Kallya Gate, Magadi Town, Ramanagaram Dist., have no objection for taking action to free the encroached property measuring 12.5' on both sides for widening of the road for convenience of the general public. Further, I also have no objection to give some land in case need arises in future for widening of the road.

Sd/-

(Smt. Radha Bala Krishna)"

20. The petitioner has alleged that the respondents have

demolished the building used as textile shop measuring

East-West 19 feet and North-South 76 feet. The above

averment is not disputed by the respondents.

21. The No Objection Certificate relied on by the

respondent-State is difficult to be accepted as an authority

to the respondents to demolish the structure. The said

certificate is vague and is not addressed to any of the

respondents herein. Further, the said certificate does not

bear the date. In the circumstances, it is to be held that

No Objection Certificate at Annexure-R.1 is an afterthought

by the respondent-authorities.

22. Be that as it may, the certificate refers to No

Objection for taking action to free the encroached property

measuring 12.5 feet on both sides for widening of the

road. The respondents have not produced any material to

show that the encroachment was to an extent of 12.5 feet.

In the absence of any order regarding measurement of the

extent of encroachment, how the certificate refers to 12.5

feet encroachment remains unanswered. One more aspect

needs to be considered by this Court is when the No

Objection Certificate was to free the encroachment

measuring 12.5 feet, the respondents claiming right to

demolish the encroachment, cannot demolish the entire

extent of the building measuring East-West 19 feet and

North-South 76 feet. Even as per the version of the

respondents referred to Annexure-R.1 No Objection

Certificate, it is clear that demolition of the entire extent of

the building is not only in violation of Section 23 of the Act

and also suffers from illegality, abuse of power and

highhandedness.

23. The respondent-authorities sought to justify their

action of demolition with reference to No Objection

Certificate cannot be accepted. In view of the dispute in

relation to the property in question between the petitioner,

K.S.Nataraj and Smt. Radha Balakrishna, the petitioner

has preferred civil suit in O.S.No.307/2011 on the file of

the Additional Civil Judge, Magadi. The Civil court by order

dated 09.08.2011 on I.A.Nos.I, II and III has passed an

order restraining the defendants from demolishing any

portion of Schedule-B property, dispossessing, interfering

and obstructing the plaintiff's peaceful possession and

enjoyment.

24. One more aspect needs to be considered is,

respondent No.6-Assistant Executive Engineer, PWD,

Magadi Sub-division, Magadi, has preferred an application

under Order 1 Rule 10(2) of Code of Civil Procedure, 1908

['CPC'], to implead in the pending suit as defendant and

also preferred application under Order 39 Rules 3 and 4 of

CPC to vacate the interim order. Smt. Radha Balakrishna

was defendant No.4 in the said suit. The interim injunction

order was binding on Smt.Radha Balakrishna.

Respondent No.6-Assistant Executive Engineer, Magadi,

has filed an application to implead and to vacate the

interim order in the said suit.

25. The interim injunction order was operating against

Smt. Radha Balakrishna claiming to be the owner. The

owner could not have demolished or dispossessed or

interfered with the possession of the petitioner. In such

circumstances, the No Objection Certificate permitting the

respondents to act on her behalf is in violation of the order

of injunction. It is trite law that the person restricted from

any action cannot authorize other person to act on his

behalf to perform the same action. The order of injunction

was in operation against the agents or persons claiming

any right through or under Smt. Radha Balakrishna.

26. Respondent No.6 being a public servant having filed

an application for impleading and vacating the interim

order before the Civil court was conversant with the nature

of dispute and has the knowledge of interim injunction

order. It is unacceptable on the part of respondent No.6

to ignore the order of injunction by the Civil court and

proceed to demolish the building under the guise of

widening of the State highway without following due

process of law.

27. Though series of affidavits have been filed by the

respondents-authorities, the justification in demolition of

the building without notice to the petitioner is not

forthcoming. The entire action of the respondents is in

violation of principles of natural justice and contrary to the

procedure contemplated under Section 23 of the Act.

28. The Hon'ble Supreme Court in the case of In SBI v.

Rajesh Agarwal, (2023) 6 SCC 1, held as:

"40. ................ It is now a settled principle of law that the rule of audi alteram partem applies to administrative actions, apart from judicial and quasi- judicial functions. [A.K. Kraipak v. Union of India, (1969) 2 SCC 262; St. Anthony's College v. Rev. Fr.

Paul Petta, 1988 Supp SCC 676 : 1989 SCC (L&S) 44; Uma Nath Pandey v. State of U.P., (2009) 12 SCC 40 : (2010) 1 SCC (Cri) 501.] It is also a settled position in administrative law that it is mandatory to provide for an opportunity of being heard when an administrative action results in civil consequences to a person or entity.

41. In State of Orissa v. Binapani Dei [State of Orissa v. Binapani Dei, AIR 1967 SC 1269] , a two- Judge Bench of this Court held that every authority which has the power to take punitive or damaging action has a duty to give a reasonable opportunity to be heard. This Court further held that an administrative action which involves civil

consequences must be made consistent with the rules of natural justice : (AIR p. 1271, para 9)

"9. ... The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed : it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case."

42. In Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , a

seven-Judge Bench of this Court held that any person prejudicially affected by a decision of the authority entailing civil consequences must be given an opportunity of being heard. This has been reiterated in a catena of decisions of this Court."

"45. In Canara Bank v. V.K. Awasthy [Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 : 2005 SCC (L&S) 833] , a two-Judge Bench of this Court succinctly summarised the history, scope, and application of the principles of natural justice to administrative actions involving civil consequences in the following terms : (SCC pp. 331-32, para 14)

"14. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an

administrative act has withered away.

Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression "civil consequences" encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life."

(emphasis supplied)

46. There is a consistent pattern of judicial thought that civil consequences entail infractions not merely of property or personal rights, but also of civil liberties, material deprivations, and non-pecuniary damages. Every order or proceeding which involves civil consequences or adversely affects a citizen should be in accordance with the principles of natural justice."

"67. The Master Directions on Frauds do not expressly exclude a right of hearing to the borrowers before action to class their account as frauds is initiated. The principles of natural justice can be read into a statute or a notification where it is silent on granting an opportunity of a hearing to a party

whose rights and interests are likely to be affected by the orders that may be passed.

68. In a decision of a three-Judge Bench of this Court in Swadeshi Cotton Mills v. Union of India [Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664] , the issue was whether the Central Government was required to comply with the requirements of audi alteram partem before it took over the management of an industrial undertaking under Section 18-AA(1)(a) of the Industries (Development and Regulation) Act, 1951. R.S. Sarkaria, J. speaking for the majority consisting of himself and D.A. Desai, J. laid down the following principles of law : (SCC p. 689, para 44)

"44. In short, the general principle -- as distinguished from an absolute rule of uniform application -- seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre- decisional stage. Conversely, if the statute conferring the power is silent with regard to the giving of a pre-

decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative progress or frustrate the need for utmost promptitude. In short, this rule of fair play 'must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands'. The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, to recall the words of Bhagwati, J., the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise."

(emphasis supplied)

"70. In Mangilal v. State of M.P. [Mangilal v. State of M.P., (2004) 2 SCC 447 : 2004 SCC (Cri) 1085] , a two-Judge Bench of this Court held that the principles of natural justice need to be observed even if the statute is silent in that regard. In other words, a statutory silence should be taken to imply the need to observe the principles of natural justice where substantial rights of parties are affected :

(SCC pp. 453-54, para 10)

"10. Even if a statute is silent and there are no positive words in the Act or the Rules made thereunder, there could be nothing wrong in spelling out the need to hear the parties whose rights and interest are likely to be affected by the orders that may be passed, and making it a requirement to follow a fair procedure before taking a decision, unless the statute provides otherwise.

The principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary. No form or procedure should ever be permitted to exclude the presentation of a litigant's defence or stand. Even in the absence of a provision in procedural laws, power

inheres in every tribunal/court of a judicial or quasi-judicial character, to adopt modalities necessary to achieve requirements of natural justice and fair play to ensure better and proper discharge of their duties. Procedure is mainly grounded on the principles of natural justice irrespective of the extent of its application by express provision in that regard in a given situation. It has always been a cherished principle.

Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice where substantial rights of parties are considerably affected. The application of natural justice becomes presumptive, unless found excluded by express words of statute or necessary intendment. ... Its aim is to secure justice or to prevent miscarriage of justice. Principles of natural justice do not supplant the law, but supplement it. These rules operate only in areas not covered by any law validly made. They are a means to an end and not an end in themselves."

(emphasis supplied)

"74. The decision of this Court in Swadeshi Cotton Mills [Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664] and K.I. Shephard [K.I. Shephard v. Union of India, (1987) 4 SCC 431 : 1987 SCC (L&S) 438] demonstrates that the exigency of a situation is contextual. The Court must lean in favour of reading in the principles of natural justice when faced with a regulatory silence. Any exclusion must be confined to the narrowest possible limits. The application of the requirement of a prior hearing could be excluded only in situations where importing it would have the effect of paralysing the entire process."

29. In Uma Nath Pandey v. State of U.P., (2009) 12

SCC 40,

"3. xxxxxxx

9. The expressions 'natural justice' and 'legal justice' do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord

Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant's defence.

10. The adherence to principles of natural justice as recognised by all civilised States is of supreme importance when a quasi-

judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard.

Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of

fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the 'Magna Carta'. The classic exposition of Sir Edward Coke of natural justice requires to 'vocate, interrogate and adjudicate'. In the celebrated case of Cooper v. Wandsworth Board of Works [(1863) 143 ER 414] the principle was thus stated : (ER p. 420)

'[Even God himself did not pass sentence upon Adam before he was called upon to make his defence.

"Adam" (says God), "where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?".'

Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.

11. Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of

the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.

xxxx

14. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression 'civil consequences' encompasses infraction of

not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life."

30. In Dharampal Satyapal Ltd. v. CCE, (2015) 8

SCC 519 :

"20. Natural justice is an expression of English Common Law. Natural justice is not a single theory-- it is a family of views. In one sense administering justice itself is treated as natural virtue and, therefore, a part of natural justice. It is also called "naturalist" approach to the phrase "natural justice"

and is related to "moral naturalism". Moral naturalism captures the essence of commonsense morality--that good and evil, right and wrong, are the real features of the natural world that human reason can comprehend. In this sense, it may comprehend virtue ethics and virtue jurisprudence in relation to justice as all these are attributes of natural justice. We are not addressing ourselves with this connotation of natural justice here."

"28. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently

insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not."

"32. xxxxxxx

21. In Board of Mining Examination v.

Ramjee [(1977) 2 SCC 256 : 1977 SCC (L&S) 226] , the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned

by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. The courts cannot look at law in the abstract or natural justice as mere artefact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.

33. In his separate opinion, concurring on this fundamental issue, K. Ramaswamy, J. echoed the aforesaid sentiments in the following words : (ECIL case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 :

(1993) 25 ATC 704] , SCC p. 773, para 61)

"61. It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well-settled law that the principles of natural justice are

integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice."

"35. From the aforesaid discussion, it becomes clear that the opportunity to provide hearing before making any decision was considered to be a basic requirement in the court proceeding. Later on, this principle was applied to other quasi-judicial authorities and other tribunals and ultimately it is now clearly laid down that even in the administrative actions, where the decision of the authority may result in civil consequences, a hearing before taking a decision is necessary. xxxxxxx"

"40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the courts. Even if it is found by the court that there is a violation of principles of natural justice, the courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of "prejudice". The ultimate test is always the same viz. the test of prejudice or the test of fair hearing."

31. In view of the law laid down by the Hon'ble Apex

Court in the above referred judgments, the petitioner was to

suffer due to the action of the respondents. The petitioner

has been deprived of his right to carry on business.

Further, the petitioner's rights agitated in civil suit have

been rendered otiose. The conduct of the State authorities

in demolishing the building is inhumane conduct, appears to

please someone else. The demolition has frustrated the

rights of the petitioner agitated in the civil suit. The action

of respondents is in violation of the order of injunction by

civil Court. Though the respondents contend that the

petitioner was duly informed and notified of encroachment

and demolition of the building, no material is place before

this Court to support the said contention. In the absence of

any material, this Court is to infer that no notice has been

issued as required under Section 23 of the Act. As held by

the Hon'ble Supreme Court in the judgments referred to

supra, it is settled position of law that even if the statute

does not provide for an opportunity to a person, unless it is

specifically prohibited under the said statue, an opportunity

to be accorded to the person who suffers civil consequence.

32. Thus, the entire action of the respondents in

demolishing the building is arbitrary exercise of power in

contravention of Section 23 of the Act and illegal.

Re: Claim for damages.

33. The petitioner has claimed compensation of

Rs.72,00,000/- for illegal demolition of Schedule-B

property. It is pleaded that the petitioner is registered

under Karnataka Shops and Commercial Establishments Act,

1961 and the Karnataka Value Added Tax Act, 2003,

registered with Weights and Measurements Department.

Electricity bills are produced relating to Schedule-B

property. The certificate would establish that the petitioner

was running textile shop in the name and style Sri. Ashwini

Textiles. The petitioner has further pleaded that when the

building was demolished without allowing him to remove the

stock, he has suffered loss of materials worth

Rs.50,00,000/-. The petitioner has further pleaded that the

investment made on the interiors also to be considered for

the purpose of compensation to the extent of

Rs.10,00,000/-. The petitioner has produced photographs

at Annexure-Z, Z1 to Z8 to show that he was running textile

shop in the subject schedule property. The photographs

further fortify the existence of the textile shop and the

demolition of the building by using machinery on

21.11.2022.

34. Insofar as the claim of compensation, learned

Additional Government Advocate submits that the

quantification of compensation/damages is a matter of trial

and the petitioner should be directed to approach the Civil

court.

35. No doubt the process of determination of

compensation/damages involves recording of evidence,

examination of documents, which can be only through the

trial before the Civil court. However, in the present case,

the illegal action and the consequential damages suffered

by the petitioner is available on record before this Court.

36. The Hon'ble Apex Court in the case of,

MCD vs. Uphaar Tragedy Victims Assn., (2011) 14 SCC 481

has held as follows;

"78. Private law causes of action, generally enforced by the claimants against public bodies and individuals, are negligence, breach of statutory

duty, misfeasance in public office, etc. Negligence as a tort is a breach of legal duty to take care which results in damage or injury to another. Breach of statutory duty is conceptually separate and independent from other related torts such as negligence though an action for negligence can also arise as a result of cursory and mala fide exercise of statutory powers. Right of an aggrieved person to sue in ordinary civil courts against the State and its officials and private persons through an action in tort and the principles to be followed in considering such claims are well settled and require no further elucidation.

***

80. We are primarily concerned with the powers of the Constitutional courts in entertaining such monetary claims raised by the victims against the violation of statutory provisions by the licensing authorities, licensees, and others affecting the fundamental rights guaranteed to them under the Constitution. The constitutional courts in such situations are expected to vindicate the parties constitutionally, compensate them for the resulting harm and also to deter future misconduct. The constitutional courts seldom exercise their constitutional powers to examine a claim for compensation merely due to violation of some statutory provisions resulting in monetary loss to the claimants. Most of the cases in which courts

have exercised their constitutional powers are when there is intense serious violation of personal liberty, right to life or violation of human rights.

93. Liability to compensate for infringement of fundamental rights guaranteed under Article 21 was successfully raised in Khatri (2) v. State of Bihar [Khatri (2) v. State of Bihar, (1981) 1 SCC 627 : 1981 SCC (Cri) 228] ("Bhagalpur Blinded Prisoners case").

96. Courts have held that due to the action or inaction of the State or its officers, if the fundamental rights of a citizen are infringed then the liability of the State, its officials and instrumentalities, is strict. The claim raised for compensation in such a case is not a private law claim for damages, under which the damages recoverable are large. The claim made for compensation in public law is for compensating the claimants for deprivation of life and personal liberty which has nothing to do with a claim in a private law claim in tort in an ordinary civil court.

98. But, in a case, where life and personal liberty have been violated, the absence of any statutory provision for compensation in the statute is of no consequence. Right to life guaranteed under Article 21 of the Constitution of India is the most sacred right preserved and protected under

the Constitution, violation of which is always actionable and there is no necessity of statutory provision as such for preserving that right. Article 21 of the Constitution of India has to be read into all public safety statutes, since the prime object of public safety legislation is to protect the individual and to compensate him for the loss suffered. Duty of care expected from State or its officials functioning under the public safety legislation is, therefore, very high, compared to the statutory powers and supervision expected from the officers functioning under the statutes like the Companies Act, the Cooperative Societies Act and such similar legislations. When we look at the various provisions of the Cinematograph Act, 1952 and the Rules made thereunder, the Delhi Building Regulations and the Electricity laws the duty of care on officials was high and liabilities strict."

"103. Legal liability in damages exists solely as a remedy out of private law action in tort which is generally time-consuming and expensive, and hence when fundamental rights are violated the claimants prefer to approach constitutional courts for speedy remedy. The constitutional courts, of course, shall invoke their jurisdiction only in extraordinary circumstances when serious injury has been caused due to violation of fundamental rights, especially under Article 21 of the

Constitution of India. In such circumstances the Court can invoke its own methods depending upon the facts and circumstances of each case."

37. In Rudul Sah v. State of Bihar, (1983) 4 SCC

141,

"10. We cannot resist this argument. We see no effective answer to it save the stale and sterile objection that the petitioner may, if so advised, file a suit to recover damages from the State Government. Happily, the State's counsel has not raised that objection. The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its

significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others too well known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers.

38. In Kaushal Kishor vs. State of U.P., (2023) 4

SCC 1,

"295. In Rudul Sah v. State of Bihar [Rudul Sah v. State of Bihar, (1983) 4 SCC 141 : 1983 SCC (Cri) 798] , Y.V. Chandrachud, C.J., gave further

momentum to fundamental rights to combat State lawlessness by granting cash compensation to a victim of unlawful incarceration for fourteen years. It is to be noticed that His Lordship, in the said case, took note of the dilemma in allowing a litigant to seek damages in a writ petition/PIL action against the State. His Lordship noted that this could have the effect of ordinary civil action being circumvented on a routine basis, by invoking writ jurisdiction of the High Courts and the Supreme Court as an alternative to ordinary civil action. However, it was recognised that granting such remedies would enhance the legitimacy of the vehicle of PIL. Therefore, this Court in Rudul Sah [Rudul Sah v. State of Bihar, (1983) 4 SCC 141 : 1983 SCC (Cri) 798] ultimately chose to grant monetary damages, in order to "mulct" the violators, as well as to offer a "palliative" for victims. Subsequent to the decision in Rudul Sah [Rudul Sah v. State of Bihar, (1983) 4 SCC 141 : 1983 SCC (Cri) 798] , compensatory relief has been granted as a means to "civilise public power" in several cases involving abrogation of fundamental rights,

296. In Nilabati Behera v. State of Orissa [Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 : 1993 SCC (Cri) 527] , this Court observed that the award of compensation in a proceeding under Article 32 or Article 226 of the Constitution is a remedy available

in public law based on strict liability for contravention of fundamental rights. In respect of such actions, the doctrine of sovereign immunity does not apply, though it may be available as a defence in a private law in an action based on tort. Drawing a distinction between proceedings under the private and public law, it was observed that a public law proceeding may serve a different purpose than a private law proceeding. Public law proceedings are based on the concept of strict liability for contravention of guarantee basic and indivisible rights of the citizens by the State. The purpose of public law is not only to civilise governmental power and but also to assure the citizens that they live under a legal system which gains to protect their interest and preserve their rights. Therefore, when the court moulds the relief by granting compensation, in proceedings under Article 32 and Article 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under public law by way of employing elements of the law of torts and fixing the liability on the State which has been negligent and has failed in its public duty to protect the fundamental rights of the citizens. The payment of compensation under such cases is not to be understood as it is generally understood in a civil action for damages under private law, but in the broader sense of providing relief by ordering monetary amounts to be paid for the wrong done

due to breach of public duty which would have the effect of violation of fundamental rights of citizens. Such grant of damages in exercise of a writ jurisdiction by the constitutional courts is independent of the rights available to the aggrieved party to claim compensation under private law in an action based on tort. Therefore, a suit may be instituted in a competent court of law or proceedings may be initiated to prosecute the offender under the penal law.

297. Though, in D.K. Basu v. State of W.B. [D.K. Basu v. State of W.B., (1997) 1 SCC 416 : 1997 SCC (Cri) 92] monetary compensation was granted, in Hindustan Paper Corpn. Ltd. v. Ananta Bhattacharjee [Hindustan Paper Corpn. Ltd. v. Ananta Bhattacharjee, (2004) 6 SCC 213] this Court cautioned that a direction to pay compensation under Article 226 of the Constitution is permissible as a public law remedy and resorted to only when there is a violation by the State or its agents acting in official capacity of the fundamental right guaranteed by Article 21 of the Constitution, and not otherwise. It was further observed that 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 to grant compensation in public law is limited. Therefore, normally in case of tortious

liability, the person aggrieved has to approach a civil court for ventilating his grievances and he cannot invoke the writ jurisdiction of the Supreme Court or a High Court. However, if the duty breached is of a public nature or there is violation or breach or infringement of a fundamental right by an act or omission on the part of the authority, it is open to the party who has suffered a "legal wrong" to invoke the jurisdiction of the Supreme Court or a High Court by instituting the writ petition. In that case, the Court, in exercise of its extraordinary jurisdiction and discretion judiciously may grant relief to the person wronged without relegating him to avail a remedy, otherwise available to him under private law having regard to the facts and circumstances of the particular case."

39. In the present case due to demolition of textile shop,

the petitioner has been deprived of livelihood. Right to

livelihood is right to life. Depriving a person of his life

would deprive him of livelihood. The eviction of the

petitioner will lead to deprivation of his livelihood and

consequently to the deprivation of life. The right to life

which is conferred by Article 21 of the Constitution includes

the right to livelihood. If petitioner is evicted from the

textile shop in question, he will be deprived of his

livelihood. The Constitution does not put an absolute

embargo on the deprivation of life or personal liberty. The

deprivation has to be according to the procedure

established by law.

40. In view of the above referred judgments, it is clear

that this Court exercising jurisdiction under Article 226 of

the Constitution of India can grant compensation in cases

involving infringement of constitutional rights and actions

of the authorities are in blatant violation of the applicable

law.

41. The above referred judgments are aptly applicable to

the facts and circumstances of the present case. The

building has been demolished on 21.11.2011. The

petitioner has approached this Court on 24.11.2011.

42. The interim order of status quo was passed on

25.11.2011. Writ Petition has been admitted on

19.02.2013. After lapse of more than 13 years, the

submission of the State that the petitioner should be

relegated to civil Court so far as compensation/damages is

concerned cannot be accepted. Relegating the petitioner

to civil court after allowing petitioner to spend time in this

petition for 13 years, not only would prejudice the

rights/claims of the petitioner, it would not only deprive

justice however, deny justice.

43. In view of the analysis in the preceding paragraphs,

it is clear that the action of the respondents in demolishing

the subject property was in violation of Section 23 of the

Act. The State authorities have acted in contravention of

the statute by exercising rather misused their powers

towards illegal action of demolition. The defence that the

action was in accordance with law has not been established

before this Court.

44. The nature of property has reached a situation that it

is impossible to restore to the position as it existed prior to

demolition. There is no dispute that the quantification of

damages would require some factual exercise. Further,

the petitioner though claimed damages of Rs.72,00,000/-,

no material is on record to accept that as the quantum of

damages. In the absence of established evidence

regarding the quantum of damages, the process of

determination of compensation needs an exercise to be

undertaken by the authorities.

45. The Deputy Commissioner was directed to file

affidavits on the allegations made in the petition. In

compliance, the Deputy Commissioner has filed affidavits

on 16.08.2021 and 11.11.2021. The affidavits disclose

that the subject property is within the town municipal

limits and it is reiterated that in view of no objection stated

in writing by Smt. Radha Balakrishna, no procedure was

followed such as issuance of notice to the occupant to

remove encroachment. The encroachment was removed

on 21.11.2022. In view of the said affidavits, it is clear

that no procedure contemplated under Section 23 of the

Act has been followed. Further in view of the judgments

referred to above, it is accepted that the petitioner is an

occupant of the building demolished would suffer his right

to carry on business as guaranteed under Article 19(1)(g)

of the Constitution of India.

46. This Court, on analysis of the facts, the nature of

action of the respondents and the law laid down by the

Hon'ble Supreme Court, pass the following;



                            Order


      i)     Writ Petition is allowed in-part.


      ii)    Respondent     No.2-Deputy        Commissioner          is

directed to conduct an enquiry, quantify the

compensation/damages suffered by the

petitioner due to the illegal acts of the

respondents authorities in demolishing the

building in contravention of law.

iii) The petitioner is at liberty to produce

necessary evidence/material to justify the

claim/quantum of compensation/damages.

iv) The Deputy Commissioner is directed to

complete the exercise of quantification of

compensation and disbursement of the same

with applicable interest from date of demolition