IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 15TH JANUARY 2010 / 25TH POUSHA 1931 WP(C).No. 33311 of 2009(H) -------------------------- PETITIONER(S): --------------- K.P.RENADEVAN, REJIN NIVAS, EZHUPUNNA P.O., CHERTHALA. BY ADV. SRI.SEBASTIAN DAVIS RESPONDENT(S): --------------- 1. EZHUPUNNA GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, ERAMALLUR P.O., CHERTHALA. 2. THE SECRETARY, EZHUPUNNA GRAMA PANCHAYAT, ERAMALLUR P.O., CHERTHALA. 3. THE PRESIDENT, EZHUPUNNA GRAMA PANCHAYAT, ERAMALLUR P.O., CHERTHALA. 4. THE DEPUTY SUPERINTENDENT OF POLICE D.Y.S.P.OFFICE, CHERTHALA. 5. THE SUB INSPECTOR OF POLICE, AROOR POLICE STATION, AROOR. 6. MR.SUKUMARAN, THACHAVEETILKALA, EZHUPUNNA P.O., EPW-2, CHERTHALA. 7. MR.JEEVAN, PUTHENVELIL, EZHUPUNNA P.O., EPW-2, CHERTHALA. 8. MR.MANOJ, PEREPARAMBU, EZHUPUNNA P.O., EPW-12, CHERTHALA. ADV. SRI.P.C.SASIDHARAN FOR R6-8 SRI.P.N.PURUSHOTHAMA KAIMAL FOR R1 & 2 SRI.N.RADHAKRISHNAN FOR R3 GOVERNMENT PLEADER SRI.V.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33311 of 2009 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE LICENSE ISSUED BY THE PANCHAYAT EXT.P2- TRUE COPY OF THE ORDER OF THE POLLUTION CONTROL BOARD, ALAPPUZHA EXT.P3- TRUE COPY OF THE APPEAL DATED 5.11.09 EXT.P4- TRUE COPY OF THE SHOWCAUSE NOTICE DATED 26.10.09 EXT.P5- TRUE COPY OF THE OBJECTION DATED 11.11.09 EXT.P6- TRUE COPY OF THE COMPLAINT EXT.P7- TRUE COPY OF THE COMPLAINT DATED 14.11.09 EXT.P8- TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER EXT.P9- TRUE COPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT EXT.R1(a)- TRUE PHOTOCOPY OF NOTICE ISSUED BY THE 1ST RESPONDENT DATED 26.10.09 EXT.R1(b)- TRUE PHOTOCOPY OF DECISION OF THE PANCHAYAT COMMITTEE DATED 12.11.09 EXT.R1(c)- TRUE PHOTOCOPY OF THE ORDER ISSUED BY 2ND RESPONDENT DATED 12.11.2009 EXT.R1(d)- TRUE PHOTOCOPY OF THE ORDER ISSUED BY 2ND RESPONDENT DATED 12.11.09 EXT.R1(e)- TRUE PHOTOCOPY OF THE ORDER ISSUED BY 2ND RESPONDENT DATED 13.11.09 EXT.R1(f)- TRUE PHOTOCOPY OF THE SEIZURE MAHAZER DATED 13.11.09 EXT.R1(g)- TRUE PHOTOCOPY OF THE RECEIPT ISSUED BY THE PANCHAYAT DATED 14.11.09 (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ------------------- W.P.(C).33311/2009 -------------------- Dated this the 15th day of January, 2010 JUDGMENT 1. Since 1985, petitioner has been conducting a piggery in his property with licence from the Panchayat, NOC of the District Medical Officer and consent issued by the Pollution Control Board. According to the petitioner, in 2007, when the licence became due for renewal, for reasons which are only political, at the instance of respondents 6 to 8, it was renewed by Ext.P1 order with a condition that the consent of the Pollution Control Board for the period subsequent to 1.7.2009 should be produced. The period of the licence thus renewed was upto 31.3.2010. 2. According to the petitioner, again at the instance of respondents 6 to 8, by Ext.P2, the Environmental Engineer of the Pollution Control Board refused to grant consent to operate the farm on the allegation that the petitioner had not provided satisfactory facilities for treatment of polluted effluents and was causing nuisance to the public by way of sound pollution. W.P.(C).33311/09 2 3. Aggrieved by Ext.P2 order of the Environmental Engineer, petitioner filed Ext.P3 appeal before the Appellate Authority and the appeal is still pending consideration. While so, Ext.P4 notice dated 26.8.2009 was issued by the Panchayat, calling upon the petitioner to show cause why in the light of Ext.P2 order, Ext.P1 licence shall not be cancelled. He was required to submit his explanation within 14 days of receipt of the notice. Petitioner submits that Ext.P4 notice was served on him by registered post with acknowledgment due. Ext.P10 is the cover enclosing Ext.P4 which shows that it was delivered to the petitioner on 31.10.2009. 4. It is stated that before the 14 days period for submitting reply expired, the Panchayat passed Ext.R1(b) resolution on 12.11.2009, resolving to cancel Ext.P1 licence, vide agenda item No.10. Petitioner submits that the said resolution was passed by the Panchayat at about 3.00 pm on 12.11.2009 and that on the same day, the President and the Secretary of the Panchayat came to his piggery when he was absent and removed five pigs W.P.(C).33311/09 3 without giving any notice or other intimation to the petitioner or his family members. It is also stated that the remaining 44 pigs were removed by the aforesaid respondents on 13.11.2009, in the forenoon and were transported to the Meat Products of India and that the pigs were sold realising Rs.1,73,520/-, as evidenced by Ext.R1(g) receipt produced by the 1st respondent. 5. It is stated that long thereafter, copies of Ext.R1(b) order cancelling the licence and Exts.R1(c) and R1(d) order requiring him to close down the piggery, both dated 12.11.2009, were served on the petitioner on 21.11.2009. These orders were sent to the petitioner in Exts.P11 and P12 covers which were despatched from the office of the Panchayat only on 13.11.2009 and 16.11.2009 respectively. Petitioner submits that in the meanwhile, he filed an appeal against Ext.R1(b), which is also pending consideration of the Tribunal for Local Self Government Institutions. It is also stated that within 14 days from 31.10.2009, he has filed Ext.P5 reply to Ext.P4 notice as well. The petitioner submits that the aforesaid high handed action of the Panchayat, its President and Secretary was mala fide and W.P.(C).33311/09 4 illegal and that as a consequence thereof, damages to the tune of Rs.10 Lakhs was caused to him and that he is entitled to be compensated. In this background the writ petition has been filed with the following main prayers. (i). To call for the records leading upto the decision said to have been passed on 12.11.2009, by the members of 1st respondent and to quash the same by the issuance of a writ of certiorari or other appropriate writ, order or direction. (ii). To issue a writ of mandamus directing respondents 2 and 3 to effect restitution/restoration of the pig farm as it stood on 12.11.2009 and also direct them to pay a sum of Rs.10,00,000/- as compensation to the petitioner for the atrocities committed by them against the petitioner and the members of his family. (iii). To direct respondents 4 and 5 to launch criminal prosecution against respondents 2 and 3 and all the persons named in Ext.P7 for the offences committed by them which are punishable under the Indian Penal Code W.P.(C).33311/09 5 6. On behalf of the 1st respondent Panchayat, the Secretary, who is also the 2nd respondent, has filed a detailed counter affidavit. In the counter affidavit it is stated that when by Ext.P2, the Pollution Control Board refused to grant consent to the piggery, Ext.R1(a) [Ext.P4] notice was issued to the petitioner, calling upon him to show cause within 14 days, why the licence shall not be cancelled. It is stated that this notice was attempted to be served on the petitioner through his peon on 26.10.2009 and that since it was refused, the notice was served by affixture in the presence of witnesses. The second page of Ext.R1(a) contains the endorsement of affixture stating that the notice was affixed in the piggery. It is stated that on receipt of the notice, petitioner did not submit any explanation and therefore, the Panchayat Committee convened a meeting on 12.11.2009 and took Ext.R1(b) decision, to cancel the licence. According to respondents 1 and 2, it was further resolved to close down the pig farm on 12.11.2009 itself, and authorized the Secretary to implement the resolution, if necessary, with police protection. 7. In compliance with Ext.R1(b), Exts.R1(c) and R1(d) were W.P.(C).33311/09 6 issued to the petitioner on 12.11.2009, directing him to close down the pig farm before 4.30 pm on 12.11.2009 itself. It is stated that though both the orders were attempted to be served on the petitioner through the peon of the Panchayat, it was not accepted and therefore, were served by affixture in the piggery. Endorsement on Ext.R1(c) shows that it was affixed at the piggery at 11.30 am on 12.11.2009. Ext.R1(d) also contains an endorsement to the same effect. 8. It is contended that in spite of Exts.R1(c) and R1(d), petitioner did not close down the piggery. Therefore, on 13.11.2009, Ext.R1(e) order was issued, directing a Lower Division Clerk of the Panchayat to close down the piggery after 4.30. pm on 13.11.2009 with police protection and to entrust the pigs to the Meat Products of India at Koothattukulam, and that in pursuance to Ext.R1(c) order, on 13.11.2009 after 4.30 pm, the Panchayat Clerk entered the farm, prepared a seizure mahazar and entrusted the pigs to the representatives of the Meat Products of India. W.P.(C).33311/09 7 9. According to the 2nd respondent, there were 17 male and 27 female pigs and the pigs were transported in lorries to the Meat Products of India and that all these operations were done “smoothly” by the experts of Meat Products of India. Meat Products of India weighed the pigs and paid Rs.1,73,520/- to the 1st respondent. Ext.R1(g) is the goods receipt. 10. Insofar as the allegation of the petitioner that five pigs were removed on 12.11.2009, it is stated in paragraph 7 of the counter affidavit that respondents 2 and 3 visited the piggery and talked to the petitioner's wife and that she agreed to shift the pigs to another piggery. According to respondents 1 and 2, petitioner's wife shifted few pigs to another piggery on that day and that they have not removed any pigs on 12.11.2009. It is contended that they were only implementing the directions of the Panchayat Committee and have not done anything illegal. 11. 3rd respondent, the President of the Panchayat, has filed a counter affidavit. According to the 3rd respondent, consent was not issued by the Pollution Control Board and that due to W.P.(C).33311/09 8 unbearable pollution problem the Panchayat had to cancel the licence. According to him, there were widespread complaints from the local residents which the Panchayat could not ignore and he, as the representative of people, was bound to protect the rights of the residents of the area. The President has also averred in his counter affidavit that in the circumstances explained by the Secretary, 44 pigs had to be removed on 13.11.2009. A reply affidavit has been filed by the petitioner denying the averments in the counter affidavits. 12. I have considered the submissions made. 13. As far as the order of the Pollution Control Board refusing to grant consent to the petitioner's farm and the decision of the Panchayat cancelling the licence are concerned, these issues are pending in appeal before the concerned Appellate Authority and the Tribunal for Local Self Government Institutions respectively. In view of this, it is for those authorities to decide on the legality of the decisions impugned in the appeals and at this stage, this Court is not required to examine those issues. Therefore, these W.P.(C).33311/09 9 issues are left open to be adjudicated by the respective appellate authorities. In this case, the question to be considered is whether even if the orders passed are within their authority, can respondents 1 to 3 be said to have acted malafide or oppressive or capricious, rendering them liable to personally compensate the petitioner. 14. Before proceeding to evaluate the facts, a brief reference to a few precedents may be fruitful. Lucknow Development Authority v. M.K.Gupta (1994 (1) SCC 243), was a case arising out of Consumer Protection Act, 1986, the Apex Court examined the question whether, should the Society or the tax payer be burdened for the oppressive act of public officers or it be paid by those responsible for it. Dealing with this question it was held that under the Constitution, sovereignty vests in the people and that every hints of the constitutional machinery is obliged to be people oriented and that public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour before Courts entrusted with responsibility of maintaining the rule of law and that when W.P.(C).33311/09 10 sufferance is due to mala fide or oppressive or capricious acts of a public servant the injured is entitled to be compensated. Proceeding further, it has been held that; 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. If 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 W.P.(C).33311/09 11 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 W.P.(C).33311/09 12 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 out 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 W.P.(C).33311/09 13 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 W.P.(C).33311/09 14 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 W.P.(C).33311/09 15 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 W.P.(C).33311/09 16 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.” 15. Again, after surveying several precedents, the Apex Court in N.Nagendra Rao & Co. v. State of A.P. (1994 (6) SCC 205) held in paragraph 25 and 27 as follows: “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 an 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 W.P.(C).33311/09 17 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 non- governmental” 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 W.P.(C).33311/09 18 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 W.P.(C).33311/09 19 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