abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 298 OF 1998 1. Sou. Lilavati Sopan Pawar 2. Sopan Rama Pawar .. Appellants V/s 1. State of Maharashtra 2. D.S.P., Pune Rural, Pune 3. Indapur Nagar Parishad .. Respondents Mr.Vivek Salunke i/b Mr.P.B. Shah for the appellants. Ms.S.P. Manchekar, A.G.P. for respondent no.1. Mrs.A.A. Agarwal for respondent no.3. CORAM : B.H. MARLAPALLE & D.G. KARNIK, JJ. DATE : 25TH MARCH 2009 ORAL JUDGMENT: (Per B.H. Marlapalle, J.) 1. This appeal filed by the original plaintiffs arises from the judgment and decree dated 14th September 1993 passed by the learned Civil Judge, Senior Division at Baramati thereby allowing Special Civil Suit No.43 of 1991 partly. The suit was decreed for the amount of Rs.1,04,350/- with interest at the rate of 6% per annum from the date of the decree till its realisation and - 2 - towards the damages, the plaintiffs are not satisfied by the amount of damages awarded by the Trial Court. 2. Special Civil Suit No.43 of 1991 was filed for the recovery of Rs.15,77,500/- by way of damages. Plaintiff no.1 is the wife of plaintiff no.2 and plaintiff no.2 claims to be a government contractor. As per the plaintiffs, the land admeasuring 2.6 hectares from Survey No.1 of Indapur was purchased by a registered Sale Deed dated 7th February 1990 (Exhibit-62) for a consideration of Rs.90,000/- from Sudhakar Gosavi and the plot is located adjacent to Municipal School Building and Municipal Office Building of Indapur City. In the said plot of land, there was a well and the plaintiffs had lodged a complaint with defendant no.3 Municipality that the latrines in the Municipal building as well as the school building were discharging water and the water in the well was getting polluted. They alleged that in retaliation and because the President of the Municipal Council was wanting to threaten them, on 23rd January 1991 the Chief Officer of the Municipal Council along with the team of officers, the police force and the President,came to the site where the plaintiffs had stored the articles and parked vehicles and lifted all of them and confiscated. Though the Municipal Council issued the notice calling upon the plaintiffs to take possession of the articles which also - 3 - included some motor vehicles by paying penalty, the plaintiffs did not approach the Municipal Council and take possession of these articles. Instead, they preferred to file a civil suit for damages and the articles, therefore remained with the Municipal Council. The plaintiffs claimed an amount of Rs.10,00,000/- by way of value of the confiscated goods and another Rs.5,00,000/- by way of damages to the business suffered by plaintiffs. 3. Defendants nos.1 and 2 filed written statement at Exhibit-19 and opposed the suit. They also claimed that the suit was not maintainable for want of notice under section 80 of the Code of Civil Procedure. It was claimed by the Municipal Council that the articles/ goods seized on 23rd January 1991 in terms of the panchanama at Exhibit-142 were lying on the site/land belonging to the Municipal Council and despite notice, the plaintiffs did not remove the said encroachment and, therefore, the Municipal Council had to resort to seize the good with the help of the police. Thus, the factum of seizure was not disputed. But the Municipal Council claims that it was a legal action and it had acted as per the provisions of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 ("the Municipalities Act" for short) and, therefore, it was not liable to pay any damages to the - 4 - plaintiffs. 4. In support of the claim, the plaintiffs examined 5 witnesses, that is Sopan Pawar (P.W.1), Balasaheb Gosavi (P.W.2), Aba Bhos (P.W.3), Devdas Salunke (P.W.4) and Ramakant Prabhune (P.W.5) - an advocate. Shri Ramakant Prabhune was appointed as a Court Commissioner to visit the site, where the articles were stored and vehicles parked, and prepare a list along with the valuation of each of the articles and he submitted the same at Exhibit-29 after he visited the site on 18th February 1992 in the presence of the plaintiffs’ advocate. To rebut the claim, the Municipal Council also examined 5 witnesses, that is Damaji Pingale (D.W.1) - a clerk in Tahsil Office at Indapur, Rajaram Jadhav (D.W.2) - the Chief Officer of the Municipal Council at the relevant time, Raju Nimbole - (D.W.3) - Junior Clerk in the Court of Civil Judge, Junior Division at Indapur, Mohan Singh Rajput (D.W.4) - one of the witnesses to the panchanama and Bitu Shinde (D.W.5)- the second witness to the seizure panchanama. 5. The land admeasuring 3 acres and 6 gunthas and covered by the grant order dated 5th October 1966 (Exhibit-125) came to be allotted to the Municipal Council by the State Government and the Council took its possession on 31st October 1966. The Municipal Office, - 5 - Primary School and other buildings of the Municipal Council have been constructed on the said plot and the remaining land is lying vacant and some portion is used as cattle bazar. The land purchased by the plaintiffs in the neighbourhood from Shri Gosavi was the subject matter of a suit pending before the Court at Indapur and even though there was an injunction not to alienate the said property, whether the plaintiffs’ said action was legal or illegal is an issue which does not have any bearing on the claim made in the suit because admittedly the Municipal Council supported its action on the ground that the articles/goods were seized as they encroached upon the site of the Municipal Corporation or the public road. Rajaram Jadhav (D.W.2) - Chief Officer stated that oral notices were issued against the plaintiffs to remove the articles and despite such notices, no steps were taken and, therefore, the seizure action was taken on 23rd January 1991. As per him, this action was taken under the powers available to the Municipal Council under Section 179 of the Municipalities Act. However, there is no material on record which supports the claim that the encroachment was on the public road and in fact, before the Trial Court, in its written statement, the Municipal Council claimed that the encroachment was on its site. There is evidence to show that the encroachment was on the site/land belonging to the Municipal Council and, therefore, the action under - 6 - Section 179 of the Municipalities Act could not have been taken. The Trial Court was thus justified in holding that the action of the Municipal Council in confiscating the goods/articles as listed in the Commissioner’s report at Exhibit-29 was illegal and without authority of law. 6. On the point of maintainability of the suit in the absence of the notice under section 80 of the Code of Civil Procedure, it was pointed out that such a notice was issued at Exhibit-69 on 5th February 1991 and, in any case, it was held that the provisions of Section 88(1) of the Municipalities Act were not applicable in the instant case. We have also noted that the issue of maintainability was not pressed for and, in any case, the finding of the trial Court that the suit was maintainable, needs no interference by us. 7. On the issue of damages in terms of the value of the articles seized and the damages for loss in business as well as tortuous damages, the trial Court framed the following four issues and answered them accordingly:- 3) Do the plaintiffs prove that No, but they owned the moveable Rs.1,04,350/- properties worth Rs.10,00,000/- on 23-1-1991? 5) Whether the plaintiffs suffered No. the loss of Rs.5,00,000/- for being not able to complete the - 7 - works on contract? 8) Whether the plaintiffs suffered mental torture worth No. Rs.30,000/- at the hands of the defendants? 9) What is the extent of damages allegedly suffered by the Rs.1,04,350/- plaintiffs? 8. We have gone through the evidence of the Court Commissioner and his report at Exhibit-29. The report sets out the value of each of the items. The learned counsel for the plaintiffs invited our attention to three major articles, that is tanker, jeep and car. We have noted that all these vehicles were very old. The plaintiffs could not bring on record a copy of the insurance policy indicating the price of each of the vehicles on the day they were seized and there was no other evidence about their market value. It appears that the court had called for tenders for disposal of some vehicles and even the price that was quoted, also has been taken into consideration. The vehicles were more than 15 years old and had changed hands more than once. We, therefore, do not find any merit in discarding the valuation of these vehicles as fixed by the trial Court. We are satisfied that the findings recorded on Issue No.3 are just and proper and do not suffer from any error. 9. So far as Issue No.5 is concerned, it was - 8 - claimed by the plaintiffs that plaintiff no.2 being a contractor and these articles were required for his business purposes, he was given a contract by P.W.D. which he was required to be completed within a fixed period and, therefore, he suffered a loss of Rs.5,00,000/- in the said tender. Though a copy of the order issued in favour of the contractor was placed on record, there was no material to show that plaintiff no.2 in fact suffered a loss of Rs.5,00,000/- in the said contract. The trial Court was, therefore, justified in its finding that the plaintiffs could not prove that they had suffered a loss of Rs.5,00,000/- or plaintiff no.2 had suffered such a loss in executing the contract awarded to him by the P.W.D. 10. Now coming to the findings on Issue Nos.8 and 9, it is pertinent to note that the action of confiscation/ seizure of the articles was held to be illegal by the trial Court and we have accepted the said finding. There may not be a case to grant damages on account of business loss, but we do not agree that there was no case made out to grant damages on account of mental torture or tortuous damages, that is the damages arising out of tortuous acts. While recording a finding on Issue No.9, the trial Court has reiterated the findings on Issue No.3 and quantified the damages, but not separately or in addition to the damages recorded while - 9 - answering Issue No.3. As noted earlier, the Municipal Council could not invoke its authority under Section 179 of the Municipalities Act and if it was keen to remove the encroachment on its land/site, it was required to follow the provisions of the Municipalities Act or under the Public Premises (Eviction) Act. The contention of the Chief Officer that the action was taken under Section 179 of the Municipalities Act is palpably erroneous as there was no encroachment on public street/road in the instant case. When a Public Body like the Municipality takes action against the residents, such an action must conform with the requirements of law. If it is authorised to remove the encroachment either under the Municipalities Act or the Public Premises (Eviction) Act, it must follow the said procedure and this is a basic requirement to maintain the rule of law. The statutory authorities cannot be allowed to take illegal actions against the citizens and if such an action is held to be illegal, they must pay damages. We are aware that the quantification of damages cannot be ascertained in each case, but nonetheless so as to prevent the Public Bodies from perpetrating their illegal actions, even a nominal amount of damages could be sufficient in a given case like the one at hands. The plaintiffs had not quantified the damages on account of mental torture or for the acts of tortuous nature. However, the trial - 10 - Court in Issue No.8 examined whether an amount of Rs.30,000/- could be granted to the plaintiffs and answered it in the negative. In the facts of this case and having regards to all the obtaining circumstances in the form of the evidence, we are satisfied that the demand for mental torture requires to be allowed to some extent and with the sole intention that defendant no.3 as a Public Body acts within its limits and acts as per law in future and imposing such cost would be a deterrent for the future. 11. In the premises, this appeal succeeds partly. The decree passed by the trial Court is confirmed and in addition we direct the Municipal Council (defendant no.3) to pay an amount of Rs.10,000/- to the plaintiffs by way of damages on account of tortuous acts. This amount shall be paid to the plaintiffs within a period of 2 months from today. If the Municipal Council so desires, it may recover the amount of Rs.10,000/- from the officers concerned. 12. The respondents shall pay the costs to the appellants and bear their own costs. (D.G. KARNIK, J.) (B.H. MARLAPALLE, J.)