ORDER
1. This writ petition is filed for a declaration that the action of the respondents in demolishing the building bearing No. 6-3-661 / A (part) (Old number 6-3-661) situaiedin Kapadia lane, Somajiguda, Hyderabad, is illegal etc. The averments in the affidavit are that the petitioner No. 1 is the absolute owner of an extent of 300 square yards or 250 square meters of the premises bearing No. 6-3-661 / A (part) (Old number 6-3-661) situated at Kapadia lane, Somajiguda, Hyderabad. She purchased the same under a sale deed dated 24-12-1993 executed by one AbduJ Majid Khan son of Abdul Hameed Khan, on a stamp paper worth Rs. 50,000/-and submitted for registration. Ever since the purchase she was in possession of the same. The building is about 100 years old and hervendor paid all taxes up to 31-3-1994 to the Municipal Corporation of Hyderabad. The second petitioner is the husband of the first petitioner, is the registered General Power of Attorney holder of the vendor Sri Abdul Majeed Khan in respect of 235 square yards bearing No.6-3-661/A (part) situated at Somajiguda. The original owner of the property was one Rafath Yar Jung Rafuddin, who got the property from Nizam Government, admeasuring 701 square yards. This property was gifted in favour of Abdul Aziz Khan the father of the first petitioner's vendor in the year 1935. The father of the first petitioner's vendor was in possession and enjoyment of the property since 1935. The said Abdul Aziz Khan gifted the properly to the vendor of the first petitioner Abdul . Majeed Khan on 15-5-1962 and possession was delivered. Ever since the first petitioner's vendor was in possession and enjoyment of 701 sqaure yards of the property bearing No. 6-3-661/A (part) situated at Kapadia lane, Somajiguda, Hyderabad, till the execution of the deed in favour of the first petitioner. While so on 27-3-1994, around 11.00 a.m. one Ashok Kumar, an employee of Municipal Corporation of Hyderbad, came to the premises along with his men and about 20 labourers with sickles and crowbars escorted by 10 armed Police people headed by the Sub-inspector of Police, viz., Somasekhar and started demolishing the building. When the petitioners asked for the order of demolition, the said Ashok Kumar, refused to produce any order stating that it is not necessary to produce any order of demolition and started proceeding with the demolition high-handedly. The petitioners approached the High Court by way of house-motion and this Court on 27-3-1994 granted stay of demolition. However, by the time the order of this Court was conveyed to the respondents, the property was demolished to an extent of 3/4th consisting of 5 rooms along with 10 feet wall existing for the last 100 years. The Municipal Corporation of Hyderabad while demolishing the building acted contrary to the provisions of the Hyderabd Municipal Corporation Act, 1955 (in short 'the Act'). Since the demolition was without issuing any notice which is mandatory under the Act, the petitioners are claiming compensation at Rs. 1,80,000/- as damages.
2. The Municipal Corporation of Hyderabad represented by its Chief City Planner filed a counter-affidavit denying that the first petitioner is the absolute owner of an extent of 300 square yards of the premises bearing No. 6-3-661 / A (part) old No. 6-3-611 situated at Kapadia lane, Somajiguda, Hyderabad; that the sale in favour of the first petitioner on 27-12-1993 by one Abdul Majeed Khan son of Abdul Hameed Khan; that the building is about 100 years and that the vendor paid taxes up to 31-3-1994 to the Corporation. Respondent No. 1 further stated that one Smt. T. Hemalatha Devi was the owner and partner of Navodaya Builders, Kapadia lane, Somajiguda, Hyderabad and she submitted building plans for the construction of gound and six floors of residential flats after dismantling the existing old structures in the property bearing No. 6-3-611, Kapadia lane, Somajiguda, Hyderabad. After the scrutiny and investigation as is required under the provisions of the Act with regard to the title and possession of the property sanction was accorded under permit No. 56/61 dated 22-2-1980. There was a main old structure in the middle of the site, and ancillary structures on North, South and Western sides. The said Smt. T. Hemalatha Devi, the owner and partner of Navodaya Builders agreed for the demolition of such structures as were affected in the road widening as per the proposal envisaged in the sanctioned plan of Hyderbad city from (sic) the payment of compenstion. The' road widening has also become necessary inasmuch as 20 feet existing road unless widened to 40 feet for the builder to have free access to the proposed construction of the building, consisting of ground and six upper floors. The sanction of the plan was given with specific indications in the approved plan showing the extent of site affected in the road widening together with structure standing therein. The road widening programme was taken up in phases depending upon the availability of funds. In the first phase the widening of the road at points where Government property is situated was taken up. In the second phase the widening of the road was undertaken at the points where the owners of the property have given their consent. In the third phase the widening of the road was undertaken with reference to the property where the Municipal Corporation of Hyderabad has to enter into negotiations with the owners. In the fourth phase the road widening will be undertaken after initiating proceedings under the Land Acquisition Act. The construction of the work of ground-floor in part alone was made and further construction was stopped and the Municipal 'Corporation of Hyderabad has taken up 139 roads for road widening purposes in the first phase which was selected from the Zonal Development Plan and Master Plan prepared by Hyderabad Urban Development Authority and approved by the Government, After widening the road from Visveswarlah statue to Panjagutta and further up to Eragadda the traffic congestion at Panjagutta junction could not be solved, therefore, one more link road, namely, Kapadia lane road which was proposed to be 40 feet width (against existing 20 feet) in approved Zonal Development Plan which will reduce right turn traffic on the Panjaguita junction if it is widened to 40 feet width. The Standing Committee in its resolution No. 155 dated 17-12-1993 accorded its approval recommending to the General Body of the Corporation to take up the work of widening the link road, namely, Kapadia lane. The General Body of the Corporation in its resolution No. 60 dated 7-1-1994 has accorded its approval for taking up the work of widening of the Kapadia lane, duly acquiring the affected properties. The road widening work was undertaken on 27-3-1994 with reference to affected structures relating to the property bearing No. 6-3-611 as they were agreed to be demolished free of compensation as indicated in the sanctioned plan bearing permit No. 56/61 dated 22-2-1980 relating to Navodaya Builders represented by its owner and partner Smt. Hemalatha Devi. A notice in letter No. 405/ VC/ ACP/ C5 dated W6/ 94 dated 24-3-1994 under Section 636 of the Act was issued and it was served on the ostensible owner Smt. T. Hemalatha Devi on25-3-l994. It is only after due service of notice on the owner of the property and after the expiry of 24 hours time specified in the notice road widening by demolishing the structures to the extent required was done. Since the owner Smt. Hemalatha Devi was consenting party as per the approved plan dated 22-2-1980 there was neither objection nor resistance for such demolition. The demolition was done by following due procedure and in accordance. with law. Police help was also taken by way of abundant caution to ward off any law and order problem arising during the execution of the work. The Corporation was not aware whether the petitioners have moved house-motion and obtained an order of stay of demolition. Only that portion of the existing structures affected in the road widening were demolished including the removal of the old compound wall. There is nothing on record of the Municipal Corporation of Hyderabad to show that the first petitioner was'the owner of the part of the demolished structure. Thervis no nexus between the petitioners and the structure demolished inasmuch as the first petitioner is claiming to be the owner of the part of the property under an alleged sale deed dated 27-12-1993 which is yet to be established. The petitioners are not entitled for any relief as the owner of the property gave consent for the demolition of the property affected in the road widening and no objection could be raised even by a tenant in possession of such property and the tenant is not entitled to any notice before road widening is undertaken involved in demolition of such consented property.
3. Smt. T. Hemalatha Devi, got im-pleaded as one of the respondents and filed a counter-affidavit stating that the building called 'Rafat Manzil' constructed in a total extent of 37693 square yards of site was declared as an evacuee property. The Commissioner of the evacuee properties held a public auction for the sale of the above building on 15-7-1960 and in the said auction one Nimmagadda Nageswara Sarma, was the highest bidder and the above property was knocked down in his favour and the same was conveyed to him through sale certificate No. C.C. Case No. 254/55-56 dated 15-7-1960. Nageswara Sarma sold an extent of 5000 square yards along with a building therein to her for monetary consideration of Rs. 30,000/- in the year 1961 and executed a regular sale deed on 2-6-1961. She sold an extent of 2400 square yards to two persons, viz., T. Venayya and K. Venkama Naidu, by executing two separate sale deeds for 1200 square yards each and after that all the three of them started developing the said site through an agreement between themselves. On the southern side of the site purchased by her there was a small outhouse and the alleged vendor of the petitioners used to live therein with her permission as Watchman of the entire site since the date of her purchase. Subsequent to her two sales to Sri T. Venayya and K. Venkanna Naidu, all the three joined together by an agreement to develop all the three sites by building multi-storeyed flats in the said site in the year 1980, after demolishing old building and with the said idea an application was made to the Municipal Corporation for sanction in the year 1980. The Municipal Corporation while granting permission for the multi-storeyed residential flats insisted on the condition of surrendering some part of the site on the southern site so as to widen the existing narrow lane in the 40 feet wide road. Therefore, they have agreed to surrender 20 feet wide site on the extreme southern side of their site. Since they have agreed to do so the Municipal Corporation had deposited compensation also to the site surrendered by them in the City Civil Court, under the provisions of the Land Acquisition Act, 1894. Accordingly they have surrendered the extreme southern portion wherein their Watchman's house was situated.
4. Subseqeunt to the surrender of their outhouse to the Municipal Corporation their Watchman started weaving out ways and means as to unlawfully grab the outhouse and the site in which it was constructed. In the said process he started creating documentary evidence as to create some legal coverage of his continuance in the surrendered site. As the site in question is valuable, the Watchman has been waiting for an opportunity for encashing the situation with his muscle power of accumulating goondas for resisting any attempt by them from removing him from the surrendered site for the purpose of getting widened access to their site and also to general public. Therefore, when they started stress on the Municipal Corporation for implementing the 40 feet wide road, the Municipality started issuing notices to her thinking that she is still continuing the possession of the surrendered site. The Municipal Corporation served/on her one notice dated 28-6-1990 when, he started construction of additional room away from the surrendered portion and another on 19-3-1994 on which she clarified on the basis of her earlier tetter to the Corporation dated 14-2-1994 that the Corporation took the initiative of removing the road blockade as the Telephone Department started laying cables across the Watchman's shed.
5. Suppressing the above facts the writ petitioners approached this Court on false claims. She further stated that the very fact that the second petitioner who is no other than the husband of the first petitioner happened to be the General Power of Attorney holder of her vendor shows and establishes the collusiveness in the attempt to grab the public property. Since the site and house situated therein are no longer private properties and alleged title deeds do not convey any rights of ownership that they are legally valid documents and as the disputed site vested in the Municipal Corporation, the present writ petition is not a remedy and is liable to be dismissed.
6. From the averments made in the affidavits filed in support of the writ petition and the counter-affidavits filed by first and third respondents the following position emerges : The first petitioner claims that the original owner of the disputed property was one Rafat Yar Jung Rafiuddin, who got the property from Nizam Government in an extent of 701 square yards. Rafat Yar Jung Rafiudden, gifted this property to Abdul Aziz Khan, the father of the vendor of the first petitioner, viz., Abdul Majeed Khan in 1935. The father of the first petitioner's vendor was in possession since 1935. Abdul Aziz Khan, in turn gifted the property to Abdul Majeed Khan, the vendor of the first petitioner on15-5-1962 and possession was delivered. Since then Abdul Majeed Khan, was in possession of 701 square yards bearing No.6-3-661/A, Kapadia lane, and the first petitioner purchased under a registered sale deed an extent of 300 square yards from Abdul Majeed Khan. Whereas according to the first respondent the original owner was Smt. T. Hemalatha Devi, who was a partner of Navodaya Builders, Kapadialane, Somajiguda, Hyderabad. She submitted an application for Construction of multi-storeyed residential flats and the Municipal Corporation sanctioned the plan under permit No. 56/ 61 dated 22-2-1980: There was an old construction in the middle of the she and ancillary structures on the North, South and Western sides. Smt. Hemalatha Devi, agreed for the demolition of structures as were affected in the road widening together with the structures standing thereon. However, the Municipal Corporation of Hyderabad, took up the road widening programme in Hyderabad and one of the roads which was to be widened in order to ease the traffic congestion is from Visveswaraiah's statue to Panjagutta and further up to Erragadda. In spite of widening the road from Visveswaraiah's statue to Pajagutta and further up to Erra-gadda, traffic congestion at Panjagutta junction could not be solved. Therefore one more link road, namely, Kapadia lane road which is proposed to be 40 feet width (against existing 20 feet) proposed to be widened to reduce the traffic congestion at Panjagutta junction. On approval by various authorities under the Municipal Corporation Act the work was taken up on 27-3-1994 with reference to the affected structures relating to the property bearing No. 6-3-611 as the owner Smt. T. Hemalatha Devi, agreed for the demolition without claiming any compensation when permit was granted on 22-2-1980. Therefore, a notice was served on 24-3-1994 on Smt. T. Hemalatha Devi, who was ostensible owner of the property. In other words, in view of the consent given by Smt. Hemalatha Devi, for the demolition of the structures relating to the property bearing No. 6-3-611 while taking up the road widening programme in Kapadia lane, the first respondent served a notice on Smt. T. Hemalatha Devi, namely, the third respondent. According to the counter-affidavit filed by Smt. T. Hemalatha Devi, originally 'Rafat Manzit' was constructed in an area of 37693 Square yards which was declared as an evacuee property. The Commissioner of evacuee properties sold the building 'Rafat Manzil' on 15-7-1960 to one N. Nageswara Sarma, in public auction and the said Nageswara Sarma, sold an extent of 5000 square yards for Rs. 30,000/- to her in 1961 under a registered sale deed. She sold an extent of 2400 square yards to one T. Venayya and K. Venkama Naidu, under two separate sale deeds for 1200 square yards each and that all the three, namely, the third respondent, K. Venayya and Venkama Naidu, proposed to develop the land and construct the mul-tistoreyed complex and the Municipal Corporation sanctioned plan and they have agreed to surrender 20 feet site towards extreme side of their site and, therefore, the Municipal Corporation of Hyderabad deposited compensation to the site surrendered by them in the City Civil Court under the provisions of the Land Acquisition Act and the vendor of the first petitioner was only a Watchman permitted to stay in the out house and created documents claiming ownership rights to the premises. In other words, according to her she has already surrendered 20 feet wide lane to the Municipal Corporation and the Municipal Corporation also deposited compensation payable in respect of that site in the City Civil Court, From the above it is clear that the third respondent is claiming that she had surrendered the site of 20 feet wide to the Municipal Corporation and the Municipal Corporation also deposited compensation payable to her in, the City Civil Court. While the first respondent is claiming that the third respondent had given consent for demolition of structures for the property bearing No. 6-3-611. Whereas the first petitioner is claiming that she is the owner of the property bearing No. 6-3-661/A(part) (old No. 6-3-661) situated in Kapadia lane, Somajiguda, Hyderabad. From the counter-affidavit of first and third respondents it is clear that no notice was served on the petitioners in respect of the property bearing No. 6-3-661 / A. There is also no averment in the counter-affidavit filed by the first respondent that the properly bearing No. 6-3-661/A is not in existence. On the other hand, the specific case of the first respondent is that the third respondent gave consent for demolition of structure of the property bearing No. 6-3-611 in 1980 and pursuant to which while taking up the road widening programme to relieve the traffic congestion, notice was served on the third respondent: From the averments made in the counter-affidavits there is inconsistency between thecase of the third respondent and the case of the first respondent. The third respondent is contending that the compensation was deposited by the Municipality in the Civil Court in respect of 20 feet of land for the purpose of road widening and she surrendered the property and it is vested in the Municipality. Whereas the case of the first respondent is that third respondent agreed to surrender it in 1980. It is not the case of the first respondent that third respondent surrendered the property in their favour and it vests in them. On the other hand, they are not disputing the right of the petitioners to the property bearing No. 6-3-661/A. The first respondent is also not contending that the property bearing No. 6-3-661/A is not in existence. Further the consent that was given by the third respondent was with regard to the property bearing No. 6-3-611. Thus the first respondent is not claiming any ownership rights in respect of property bearing No. 6-3-661/A. Further there is absolutely no reference to the property in dispute bearing No. 6-3-661/A. From the averments made by the first and third respondents, the identity of the property cannot be established. From the averments made in the counter-affidavits no connection can be established between the petitioners' property and the property in respect of which they were dealing.
6A. The next question to be considered is whether notice is required to be served on the first petitioner before demolition? In this context I may refer to the judgment of this Court reported in M. Rajkumar v. Excise superintendent, : AIR1992AP143 . It is necessary to refer to the facts of that case in brief. The writ petitioner No. 1 wasalicensee for the arrack unit in twin cities of Hyderabad and Secunderabad. The licence was granted to him to carry on arrack business in the shop situated at Osman Shahi in Sy. N. 9/2, Ward No. 202, Block No. 'C' of an extent of 382.66 square yards. Writ petitioners 2 and 3 claimed t6 be the owners of the said site. While so, the Municipal Corporation of Hyderabad without giving any notice was trying to remove the structures erected on the premises, under Section 405 of the Act. The matter was taken up to the High Court. The argument advanced on behalf of the petitioners was that the Municipal Corporation was trying to remove the structures erected on the premises without notice under Section 405 of the Act. In that context it was held :--
'Within the framework of Section 406 it is only when immediate action is required in public interest, such structures which have been put up as mentioned therein can be caused to be removed by the Commissioner by dispensing with giving a notice. Section 406 lays down the well recognised principle that the Commissioner may, by written notice, cause to be removed certain structures or fixtures which are erected or set up. If a structure is set up illegally, then under Section 406 the Commissioner is under an obligation to issue a notice to the person concerned giving him an opportunity to explain his case and thereafter if it is found that the structure has been put up unauthorisedly or illegally, it can be removed. A person, who is the owner or occupier of the premises of the nature existing in this case, cannot be proceeded against in the absence of a prior notice issued by the Commissioner. In other words, the law does not permit anyone to spring by way of demolition of the premises consisting of the shop of the type in question which has been in existence for a period of ten years of which the petitioner is a licensee. Thus threatened action by the Commissioner of demolition of premises in absence of notice to the petitioner cannot derive any sustenance from any principle of law.'
7. From the above it is clear that in a case where a person claims to be the owner of a particular piece of land the Municipality cannot remove the structures erected in that property without issuing a notice under Section 406 of the Act and Section 406 of the Act is the relevant Section and not S. 405 of the Act. It is true, though Section 405 of the Act enables the Municipality to remove unauthorised structures, but, it applies where there is no dispute about the ownership of the Municipality in respect of that property.
8. I have already referred to the averments made in the counter-affidavits according to which the first respondent claims that the property in question is the property of the third respondent, whereas the third respondent claims that it was already surrendered in favour of the Municipality for which they have not produced any evidence. In view of that the Municipality is not the owner of that property and, therefore, Section 405 of the Act is not applicable and it is only Section 406 of the Act that is applicable. Admittedly on the facts of this case no notice was issued and, therefore, the action of the first respondent in demolishing the structures is illegal, un-re-asonable and without authority of law.
9. I may also point out that the first respondent acted high-handedly in demolishing the structures. The application filed for the construction of the multistoreyed flat was sanctioned as long ago as in 1980. Thereafter no steps were taken for the purpose of widening the road. It is true that the first respondent claims that in an effort to streamline the traffic and relieve the congestion at Panjagutta junction they proposed to widen Kapadia lane. The power of the first respondent to widen the road is un-disputed. However, while widening the road the first respondent has to ascertain whether the property belongs to it, and if it does not belong to it and in case the widening of the road affects the property rights of third persons, it cannot highhandedly demolish the structures without following the procedure under Section 406 of the Act.
10. The judgment of the Full Bench of this Court in 3 ACES v. M.C.H., : AIR1995AP17 (FB) is a case where the Full Bench has considered the power of the Municipal Corporation under the Act to demolish a building constructed in deviation of the provisions of the Act, Bye-laws, Zoning Regulations, 1981 and Multistoreyed Building Regulations, 1981, which has no relevance to the facts of the present case.
11. The next question to be considered is whether this Court is competent to award damages for the un-reasonable, highhanded, unauthorised and illegal action of the first respondent ?
12. The counsel for the petitioners relied on the judgments reported in Nilabati Behera v. State of Orissa, : 1993CriLJ2899 and Olga Tellis v. Bombay Municipal Corporation, : AIR1986SC180 claiming that right to life includes deprivation of livelihood except according to just and fair procedure established by law is in violation of Article 21 of the Constitution of India and, therefore, this Court is competent to award damages.
13. In Nilabati Behera v. State of Orissa, : 1993CriLJ2899 (supra) the facts, in brief, are as follows : One Suman Behera, was taken from his home in police custody by the Assistant Sub-Inspector of Police in connection with the investigation of an offence of theft and detained at the police out-post. The petitioner came to know that the dead-body of her son Suman Behera, was seen on the railway track near a bridge at some distance from the Jaraikela railway station and there were some multiple injuries on the body of Suman Behera. The allegation made was that it was a custodial death as a result of the multiple injuries inflicted on him while he was in police custody. A letter was written by Smt. Nilabatt Behera (petitioner) 'claiming compensation under Article 32 of the Constitution of India consequent upon the death of her son Suman Behera aged about 22 years in police custody. On enquiry the District Judge arrived at a conclusion that it is a custodial death. The Supreme Court on a consideration of the material before it also arrived at the finding that it was a custodial death. On the basis of the above finding, the question thai was considered was whether the mother of Suman Behera should be compensated for the death of her son. The Supreme Court held (at pp. 1969-70) :--
'The Surpeme Court is not helpless and the wide powers given to it by Art. 32 which itself is a fundamental right, impose a constitutional right, on it to forge new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available. The power available to the Court under Article 142 is also an enabling provision in this behalf. The contrary view would not merely render the court powerless and the constitutional guarantee a mirage, but may, in certain situations, be an incentive to extinguish life, if for the extreme contravention the court is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence, and recovery of damages under private law, by the ordinary process. If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the havenots, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise to be tempered by judicial restraint to avoid circumvention of private law remedies, were more appropriate.'
14. The Surpeme Court also relied on Article 9(5) of the International Covenant on Civil and Political Rights 1966, which indicates that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. Holding as above, the learned Judge awarded compensation of Rs. 1,50,000/- to the mother of the deceased.
15. In Olga Tellis v. Bombay Municipal Corporation : AIR1986SC180 (supra) it was held that the eviction from pavements and slums will lead to deprivation of their livelihood and consequently to the deprivation of the right to life. It was also held that pavement dwellers and slum dwellers are using pavements and other public properties for an unauthorised purpose; that opportunity of hearing cannot be denied to them on ground that they are trespassers; trespass is a tort and that but, even the law of torts requires that though a trespasser may be evicted forcibly, the force used must be no greater than what is reasonable and appropriate to the occasion and, what is even more important, the trespasser should be asked and given a reasonable opportunity to depart before force is used to expel him.
16. Thus in Olga Tellis v. Bombay Municipal Corporation : AIR1986SC180 (supra) it was held that eviction of shop dwellers from pavements and slums will lead to deprivation of their livelihood and consequently the deprivation of life and in Nilabati Behera v. State of Orissa : 1993CriLJ2899 (supra) it was held that in certain situations for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, the Court is competent to award monetary compensation. No doubt such power is to be exercised with judicial restraint to avoid circumvention of private law remedies, which are more appropriate. It is true that the Supreme Court exercised the power of awarding compensation on the ground that there was deprivation of life which was an extreme situation and that the victim was a havenot who was not possessed of the wherewithal for enforcing of the rights in private law. In other words, in an appropriate case for the deprivation of life this Court is competent to award demages by way of compensation.
17. The question, therefore, is whether ' the present case is fit case for awarding damages and if so, what should be the quantum I have already stated in the earlier paragraphs that the action of the first respondent is highhanded, unreasonable and illegal and without authority of law and it has resulted in deprivation of life of the petitioners. Further the demolition of the structure was already completed by the time the interim order was communicated. Therefore, it is a case where the petitioneis cannot be placed in the same position in which they were prior to the date on which they approached to this Court.
18. Hence they are entitled to compensation for the loss sustained on account of illegal action of the first respondent. It is true that what should be the loss sustained by virtue of the illegal action of the first respondent is a matter to be decided on the basis of evidence and the petitioners remedy is under private law. However, in view of the highhanded action of the first respondent it is a fit case where the petitioners should be remedied by way of compensation. Coming to the quantum of the compensation the petitioners are claiming Rs. 1,80,000/- towards compensation. The respondents have denied the right of the petitioners to claim compensation but have not denied that the damage caused would be above Rs. 1,80,000/-. However, there is no evidence as to the exact amount of the damage caused to the petitioners.
19. In Nilabati Behera v. State of Orissa : 1993CriLJ2899 (supra) the Surpeme Court white awarding compensation for the custodial death observed that the award of compensation in this proceeding would be taken into account for adjustment, in the event of any other proceeding taken by the petitioner for recovery of compensation on the same ground, so that the amount to this extent is not recovered by the petitioner twice over.
20. Since there is no evidence as to the actual damage suffered by the petitioner, it is appropriate to direct the first respondent to pay Rs. 10,000/- as compensation for the damage sustained by the petitioners. However, this will be subject to adjustment in the event of the petitioners filing a suit for assessment of the damages sustained by them and for recovery of the same. The first respondent is directed to pay Rs. 10,000/-(Rupees ten thousand only) to the petitioner within three months from the date of receipt of a copy of this order.
21. The writ petition is accordingly allowed with costs of Rs. 1,000/ - (Rupees one thousand only).
22. petition allowed.