Judgment :- (This petition filed under Article 226 & 227 of the constitution of India Praying to quash the resolution Dt.3.9.2009. Bearing subject number 2 passed by the respondent marked as Ann-G. By issuing A writ in the nature of Certiorari.) Facts in brief are – a) The petitioner’s application dt. 8.10.1997 together with remittance of Rs.38,050/-fructified into allotment of site No.1232 measuring 40’ x 70’+90’/2 at S. Nijalingappa layout formed by the respondent as intimated to the petitioner by letter dt. 1.7.1998 Annexure-A. The petitioner having deposited the balance amount totaling to Rs.1,20,000/- towards full value of the site, the respondent executed a lease-cum-sale agreement dt. 19.8.1998 followed by a possession certificate dt. 28.9.1998. b) The petitioner unable to identify and locate the site allotted since the area shown at the time of issuing possession certificate, was thickly covered by shrubs and small trees, bereft of clear demarcation and fixing of boundaries, made a representation dt. 17.7.1999 Annexure-B, amongst other representations to identify the site. The respondent-Urban Development Authority in the process of identifying corner sites in the layout, for sale by public auction, did not respond to the petitioner’s request. Hence O.S.No.488/99 was instituted before the Prl.Civil Judge. Davanagere, arraigning the Urban development Authority as defendant which was allowed by Judgment and decree dt. 20.12.2001. restraining the respondent, from auctioning corner sites until fixing the boundary and demarcating the site allotted to the petitioner with a further direction to do so and hand over possession of the site. Having suffered the Judgment and the decree Annexure-‘C’ the Urban Development Authority took no action to comply with the directions, impelling the petitioner to file Execution Petition No.121/2004 before the Prl. Civil Judge (Jr.Dn). Davanagere, whence a Court Commissioner submitted a report stating that it was impossible to identify the site in the layout. c) Thereafterwards in response to the petitioner’s representation, the respondent issued an endorsement dt. 3.5.2005 Annexure-D stating that there were no sites available in the said layout but was willing to allot a site at J.H.Patel Extension. To another representation dt. 25.5.2005 Annexure-E requesting the respondent to allot an alternate site, when not responsive, the petitioner invoked the writ jurisdiction in W.P.16311/2006, whence by order dt. 3.5.2005 Annexure-D stating that there were no sites available in the said layout but was willing to allot a site at J.H.Patel Extension. To another representation dt. 25.5.2005 Annexure-E requesting the respondent to allot an alternate site, when not responsive, the petitioner invoked the writ jurisdiction in W.P.16311/2006, whence by order dt. 20.3.2007 Annexure-F, having regard to the statutory obligation under The Karnataka Urban Development Authorities Act, 1987 (for short the ‘Act’) and Rules framed thereunder, in the matter of allotment of site to the petitioner, a writ of mandamus was issued to the respondent to consider and pass orders on the petitioner’s a representation dt 25.5.2005 Annexure-E within a period of one month from the date of receipt of a certified copy of the order. d) It is the assertion of the petitioner that due to noncompliance, contempt of court proceeding in CCC No.652/2007 when initiated was disposed off recording the submission of learned counsel for the respondent, of compliance by resolution dt. 3.9.2007 Annexure-G rejecting the petitioner’s request for allotment of an alternate site either at S.Nijalingappa layout or Deveraj Urs Layout but offered a site at J.H.Patel layout on payment of current market value. e) It is the allegation of the petitioner that even as on 2.1.2002 two sites were allotted while one each on 19.11.2005 and 9.1.2005 at S.Nijalingappa layout, as stated in the reply Annexure-H of the respondent, while reply Annexure-J, disclosed sale by way of public auction 88 sites in the said layout during the period from 1.1.2002 to 31.12.2006 pursuant to the petitioner’s queries under the Right to Information Act, though by Judgment and decree in O.S.488/1999 the respondent was restrained from auction sale of corner sites. f) Hence this petition to quash Annexure-G and to direct the respondent to allot an alternative site of same dimension in lieu of site No.1232 either at S. Nijalingappa layout or Devraj Urs layout (A) block. 2. Petition is not opposed by filing statement of objections. Learned counsel for the respondent does not dispute the facts supra. Learned counsel for the petitioner reiterates the averments set out in the petition. 3. The laudable objective, in public interest, to form a layout of residential, commercial and industrial sites is the responsibility of the respondent under the Act. 4. Petition is not opposed by filing statement of objections. Learned counsel for the respondent does not dispute the facts supra. Learned counsel for the petitioner reiterates the averments set out in the petition. 3. The laudable objective, in public interest, to form a layout of residential, commercial and industrial sites is the responsibility of the respondent under the Act. 4. The Urban Development Authority after expending considerable sums of money from the State Exchequer formed a layout of residential sites to be allotted to persons who did not own or possess residential sites. The petitioner a gullible customer when allotted site No.1232 at S.Nijalingapa layout followed by payment of Rs.1,20,000/- being the value of the said site in the year 1998, was made to believe the site allotted was identifiable and demarcated by boundaries, in accordance with the lease-cum-sale agreement and possession certificate. Indisputably the failure on the part of the respondent to demarcate the site by measurement and boundaries led to institution of the suit followed by a Judgment and decree of a competent Civil Court, which too when not complied with, the decree was put in execution. The respondent unmindful of its obligation and responsibilities under the Act, despite the Judgment and decree went about its business of auction of sale of corner sites and allotment of sites at S.Nijalingappa layout. The inaction on the part of respondent impelled the petitioner to invoke the extraordinary writ jurisdiction whence a writ of mandamus was issued. Yet again the respondent did not rise to the occasion which led to the initiation of contempt proceeding whence the resolution Annexure-G was passed declining the request of the petitioner but willing to allot an alternative site measuring either 40’ x 60’ or 50’ x 80’ J.H. Patel layout at the then market value. 5. The respondent with full knowledge of its irresponsible action. In the circumstances, ought to have set the wrong right at the earliest opportunity in the year 1999. In the least, the correction ought to have been made on notice of O.S.488/1999. The respondent threw all caution to wind and acted in a manner insensitive to the rightful demand of the petitioner. The execution petition too did nothing to evoke a positive response. In the least, the correction ought to have been made on notice of O.S.488/1999. The respondent threw all caution to wind and acted in a manner insensitive to the rightful demand of the petitioner. The execution petition too did nothing to evoke a positive response. The submission of the learned counsel for the respondent that after the writ of mandamus was issued by Order Annexure-F, the Urban Development Authority resurveyed the land to ascertain if there was any site available for allotment, is a clear indicator of the fact that the petitioner was mentally tortured and harassed right from the issue of a possession certificate in the year 1999. In my opinion, action of the respondent and its officials is nothing short of being illegal irresponsible and irrational. 6. Having regard to the persistent efforts of the petitioner to bring to light the action of the respondent being in violation of the rule of law and the following inaction coupled with insensitivity to address its mistake, while being deplorable, the delayed response by resolution-G calls for interference. 7. The resolution Annexure-G does not offer to the petitioner an identifiable site at J.H.Patel layout, being evasive without disclosing the site number or its dimension and subjecting the offer to payment of a price equal to the then market value of the site for no mistake committed by the petitioner, even after acknowledging Rs.1,20,000/- in the year 1998 towards being the full value of the site No.1232 at Nijalingappa layout, in my considered view is unsustainable. 8. Having given my anxious consideration to the modalities and methodology adopted by the respondent – Urban Development Authority in not addressing its mistake so as to make good an alternative site to the petitioner immediately on being brought to its notice that the site was full of shrubs, small trees and unable to be identified by measurement and boundaries, the offer made in the resolution Annexure-G to allot the site measuring 40’ x 60’ or 50’ x 80’ J.H.Patel layut on payment of the current market value cannot but be arbitrary, illegal, irrational, oppressive, resulting in harassment and agony, is wholly unjustified. The misfeasance with deliberate mal-administration is writ large and somebody is answerable. 9. The Supreme Court in M/s Shantistar Builder –v- Narayan Khimalal Totame1 AIR 1990 SC 630 having regard to basic needs of man being food, clothing and shelter, observed thus: “9. The misfeasance with deliberate mal-administration is writ large and somebody is answerable. 9. The Supreme Court in M/s Shantistar Builder –v- Narayan Khimalal Totame1 AIR 1990 SC 630 having regard to basic needs of man being food, clothing and shelter, observed thus: “9. Basic needs of man have traditionally been accepted to be three – food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The different between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect – physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud-built fire-proof accommodation. 10. With the increase of population and the shift of the rural masses to urban areas over the decades the ratio of poor people without houses in the urban areas has rapidly increased. This is a feature which has become more perceptible after independence. Apart from the fact that people in search of work move to urban agglomerations, availability of amenities and living conveniences also attract people to move from rural areas to cities. Industrialization is equally responsible for concentration of population around industries. These are features which are mainly responsible for increase in the homeless urban population. Millions of people today live on the pavements of different cities of India and a greater number live animal like existence in jhuggis.” 10. In yet another opinion of the Apex Court in State of Karnataka –v. Narasimhamurthy2 AIR 1996 SC 90 , their lordships observed thus: “7. Right to shelter is a fundamental right under Article 19(1) of the Constitution. To make the right meaningful to the poor, the State has to provide facilities and opportunity to build house. In yet another opinion of the Apex Court in State of Karnataka –v. Narasimhamurthy2 AIR 1996 SC 90 , their lordships observed thus: “7. Right to shelter is a fundamental right under Article 19(1) of the Constitution. To make the right meaningful to the poor, the State has to provide facilities and opportunity to build house. Acquisition of the land to provide house sites to the poor houseless is a public purpose as it is a constitutional duty of the State to provide house sites to the poor. Admittedly, final notification under sub-section (4) of Section 3 did contain the name of the first respondent.” 11. The Supreme Court in Chameli Singh –v. State of U.P.3 (1996) 2 SCC 549 following the opinion in Narasimhamurthy’s case (supra2), having regard to the mandate of human right to shelter read it into Article 19(1)(e) and Article 21 of the Constitution to guarantee right to residence and settlement, as observed in P.G. Gupta –v- State of Gujarat4 1995 Supp (2) SCC 182 held thus: “8. In any organized society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions object. Right to live guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. These social and cultural rights enshrined in the Universal declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights. Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure and water, electricity, sanitation and other civic amenities like roads etc., so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. As is enjoined in the Directive Principles, the State should be deemed to be under an obligation to secure it for its citizens, of course subject to its economic budgeting. In a democratic society as a member of the organized civic community one should have permanent shelter so as to physically, mentally and intellectually equip oneself to improve his excellence as a useful citizen as enjoined in the Fundamental Duties and to be a useful citizen and equal participant in democracy. The ultimate object of making a man equipped with a right to dignity of person and equality of status is to enable him to develop himself into a cultured being. Want of decent residence, therefore, frustrates the very object of the constitutional animation of right to equality, economic justice, fundamental right to residence, dignity of person and right to live itself. To bring the Dalits and Tribes into the mainstream of national life, providing these facilities and opportunities to them is the duty of the State as fundamental to their basic human and constitutional rights.” 12. The Supreme Court in P.T.Munichikkanna Reddy and Others –v. Revamma and othyers5 (2007) 6 SCC 59 , while dealing with the right to property as a human right, in the context of adverse possession held thus: “40. There is another aspect of the matter, which cannot be lost sight of. The right of property is now considered to be not only a constitutional or statutory right but also a human right. 41. Declaration of the Rights of Man and of the Citizen, 1789 enunciates right to property under Article 17: “Since the right to property is inviolable and sacred,no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid”. 42. Moreover, the Universal Declaration of Human Rights, 1948 under Section 17(i) and 17(ii) also recognizes right to property: 17(i) Everyone has the right to own property alone as well as in association with others. 42. Moreover, the Universal Declaration of Human Rights, 1948 under Section 17(i) and 17(ii) also recognizes right to property: 17(i) Everyone has the right to own property alone as well as in association with others. (ii) No one shall be arbitrarily deprived of his property.” 43. Human rights have been historically considered in the realm of individual rights such as, right to health, right to livelihood, right to shelter and employment, etc, but now human rights are gaining a multifaceted dimension. Right to property is also considered very much part of the new dimension. Therefore, even claim of adverse possession has to be read in the context. The activist approach of the English Courts is quite visible from the judgment of Beaulane Properties Ltd –v- Palmer (35 (2005) 3 WLR 554: 2005 EWHC 817 (Ch)) and JA Pye (Oxford) Ltd. –v- United Kingdom (10 (2005) 49 ERG 90: 2005 ECHR 921. The Court herein tried to read the human rights position in the context of adverse possession. But what is commendable is that the dimensions of human rights have widened so much that now property dispute issues are also being raised within the contours of human rights.” 13. Keeping in mind the constitutional right of a citizen to shelter and obligation of the State, applying the same to the fact of this case the petitioner is entitled to restitution at the hands of the respondent. Urban Development Authority. 14. The question is who is to pay for the harassment and agony suffered by the petitioner for over an extended period of 11 years, right from allotment of the site in the year 1998, is it the Urban Development Authority or should it be realized from those who are responsible for it? In almost identical circumstances when a similar question arose for consideration before the Supreme Court in LUCKNOW DEVELOPMENT AUTHORITY vs. M.K. GUPTA6 AIR 1994 SC 787 their Lordships observed thus: “10. Who should pay the amount determined by the Commission for harassment by and agony, the statutory authority or it should be realized from those who were responsible for it. Compensation as explained includes both the just equivalent for loss of goods or services and also for sufferance of injustice. For instance in Civil Appeal No……….. Who should pay the amount determined by the Commission for harassment by and agony, the statutory authority or it should be realized from those who were responsible for it. Compensation as explained includes both the just equivalent for loss of goods or services and also for sufferance of injustice. For instance in Civil Appeal No……….. of 1993 arising out of S.L.P. (Civil) No.659 of 1991 the Commission directed the Bangalore Development Authority to pay Rupees 2446/- to the consumer for the expenses incurred by him in getting the lease-cum-sale agreement registered as it was additional expenditure for alternative site allotted to him. No misfeasance was found. The moment the authority came to know of the mistake committed by it took immediate action by allotting alternative site to the respondent. It was compensation for exact loss suffered by the respondent. It arose in due discharge of duties. For such acts or omissions the loss suffered has to be made good by the authority itself. But when the sufferance is due to mala fide or oppressive or capricious acts etc. of a public servant, then the nature of liability changes. The commission under the Act could determine such amount if in its opinion the consumer suffered injury to what is called misfeasance of the officers by the English Courts. Even in England where award of exemplary or aggravated damages for insult etc., to a person has now been held to be punitive exception has carved out if the injury is due to ‘oppressive, arbitrary or unconstitutional action by servants of the government’ (salmond and Heuston on the Law of Torts). Misfeasance in public office is explained by Wade in his book on Administrative Law thus. “Even where there is no ministerial duty as above, and even where no recognized tort such as trespass, nuisance, or negligence is committed, public authorities or officers may be liable in damages for malicious, deliberate or injurious wrong-doing. There is thus a tort which has been called misfeasance in public office, and which includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury.” 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, 1972 AC 1027, on the principle that, ‘an award of exemplary damages can serve a useful purpose in vindicating the strength of law’. An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law. It acts as a check on arbitrary and capricious exercise of power. In Rookes v. Barnard, 1964 AC 1129 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. Compensation or damage as explained earlier may arise even when the officer discharges his duty honestly and bona fide. But when it arises due to arbitrary or capricious behaviour then it loses its individual character and assumes social significance. Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous. Crime and corruption thrive and proper 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 function 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 to 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. Wade in his book ‘Administrative Law’ has observed that it is to the credit of public authorities that there are simply few reported English decisions on this form of malpractice, namely, misfeasance in public offices which includes malicious use of power, deliberate maladministration and perhaps also other unlawful acts causing injury. One of the reasons for this appears to be development of law which, apart, from other factors succeeded in keeping a salutary check on the functioning in the government or semi-government offices by holding the officers personally responsible for their capricious or even ultra vires action resulting in injury or loss to a citizen by awarded damages against them. Various decisions rendered from time to time have been referred by Wade on Misfeasance by Public Authorities. We shall refer to some of them to demonstrate how necessary it is for our society. In Ashby v. White, (1703) 2 Ld Raym 938, 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, (1959) 16 DLR (2d) 689, 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 ball on many occasions for fellow members of the sect of Jehovan’s Witnesses, which was then unpopular with the authorities. It was observed that ‘what could be more malicious than to punish this licensee for having done what he had an absolute right to do in a matter utterly irrelevant to the Alcoholic Liquor Act? Malice in the proper sense is simply acting for a reason and purpose knowingly foreign to the administration, to which was added here the element of intentional punishment by what was virtually vocation outlawry.’ In Smith v. East Elloe Rural District Council, 956 AC 736 the House of Lord 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, 1959 VR 286, the Supreme Court of Victoria awarded damages for exercising a power the authorities knew they did not possess. In Farrington v. Thomson, 1959 VR 286, 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. The Court observed. ‘Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or commission, and the consequence of that is an injury to an individual, an action may be maintained against such public officer’. In Wood v. Blair (The Times, 3, 4, 5 July 1957) 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. 11. Today the issue thus is not only of award of compensation but who should bear the brunt. The concept of authority and power exercised by public functionaries has many dimensions. It has undergone tremendous change with passage of time and change in socio-economic outlook. The authority empowered to function under a Statute while exercising power discharges public duty. It has to act to subserve general welfare and common good. In discharging this duty honestly and bonafide 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. The culture of window clearance appears to be totally dead. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match the inaction in public oriented departments gets frustrated and it erodes the credibility in the system. Public administration, no doubt involves a vast amount of administrative discretion which shields the action of administrative authority. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under protective cover. When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power and the National Commission finds it duly proved then it has a statutory obligation to award the same.? It was never more necessary than today when even social obligations are regulated by grant of statutory powers. The test of permissive form of grant are over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. When the Court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payers’ money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries.” (emphasis supplied) 15. In the circumstances, the respondent-authority and its Officers having committed acts of misfeasance in allotting an unidentifiable site and failing to take immediate steps to allot an alternative site, the petitioner has suffered both mentally and physically due to malafide, oppressive and capricious act of the officers of the respondent. In the result, the writ petition is allowed. The resolution dt. 3.9.2007 Annexure-G is quashed. In the result, the writ petition is allowed. The resolution dt. 3.9.2007 Annexure-G is quashed. The respondent is directed to: a) Clear the shrubs and trees, demarcate by measurement and boundary an extent of 40’ x 70’+90’/2 of Site No.1232 at S.Nijalingappa layout and deliver possession of the same to the petitioner. b) If the site is not available, in the alternative, respondent is directed to purchase in the open market a site of dimension 40’ x 70’+90’/2 or thereabouts at S.Nijalingappa layout or Devraj Urs layout (A) Block at its own cost and put the petitioner in possession of the same, in any event within a period of three months from the date of receipt of a certified copy of this order. c) In the event the respondent is unable to purchase a site in the open market within the time stipulated, it is at liberty to move the court for extension of time. The Chief Secretary, Government of Karnataka is directed to hold an enquiry over the accountability of the public servant/s two has/have caused the misfeasance and if found responsible, recover from the salary/pension/retiremental benefits of each one of them and if insufficient from the sale of personal assets as arrears of land revenue, towards sums spent for purchase of the site at the market value and to file a report to the Registrar General of this Court within six months. Let a copy of this order be made over to the Chief Secretary for needful action.