- 1 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR JUSTICE K.SOMASHEKAR AND THE HON'BLE MR JUSTICE VENKATESH NAIK T REGULAR FIRST APPEAL NO.1260 OF 2018 BETWEEN: 1. THE CHIEF SECRETARY STATE OF KARNATAKA VIDHANA SOUDHA VIDHANA VEEDHI DR. B.R. AMBEDKAR VEEDHI BENGALURU-560 001. 2. THE DEPUTY COMMISSIONER HASSAN DISTRICT HASSAN-573 201. 3. THE TAHSILDAR ARASIKERE ARASIKERE TALUK HASSAN DISTRICT-573 103. 4. THE DEPUTY TAHSILDAR NADA KACHERI KANAKATTE HOBLI ARASIKERE TALUK HASSAN DISTRICT-573 103. 5. THE VILLAGE ACCOUNTANT SATHANAKERE CIRCLE KANAKATTE HOBLI ARASIKERE TALUK HASSAN DISTRICT-573 144. 6. TALUK SURVEYOR TALUK OFFICE MINI VIDHANA SOUDHA Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 ARASIKERE, ARASIKERE TALUK HASSAN DISTRICT-573 144. 7. HOBLI SURVEYOR KANAKATTE HOBLI ARASIKERE TALUK-573 144. …APPELLANTS (BY SRI HARISHA A. S., A.G.A.) AND: 1. S.M. JAYANNA S/O. MALLESHAPPA AGED ABOUT 47 YEARS RESIDENT OF SATHANAKERE VILLAGE KANAKKATE HOBLI ARASIKERE TALUK-573 103. 2. SRI S.C. NAGARAJ THE PRESIDENT AND TRENCH CONTRACTOR KANAKATTE GRAMA PANCHAYATH KANAKATTE HOBLI ARASIKERE TALUK-573 144. 3. SRI KUMARANNA JCB OWNER, KALLESWARA EARTH MOVER KA-18-N-7936 MUTTANAGERE PANCHANAHALLI HOBLI KADUR TALUK-577 448. 4. THE CHIEF SECRETARY ZILLA PANCHAYAT, HASSAN HASSAN DISTRICT-573 201. 5. THE SECRETARY AND INCHARGE PDO., KANKATTE GRAM PANCHAYAT KANKATTE HOBLI ARASIKERE TALUK-573 144. 6. BILL COLLECTOR KANAKATTE GRAMA PANCHAYATH - 3 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 KANAKATTE HOBLI ARASIKERE TALUK-573 144. 7. ASSISTANT ENGINEER TALUK PANCHAYATH ARASIKERE ARASIKERE TALUK-573 103. 8. THE EXECUTIVE OFFICER TALUK PANCHAYATH ARASIKERE, ARASIKERE TALUK HASSAN DISTRICT-573 103. CAUSE TITLE AMENDED AS PER THE ORDER OF THE COURT DATED 05.09.2019. …RESPONDENTS (BY SRI A. V. GANGADHARAPPA, ADVOCATE AND SRI G. RAVISHANKAR, ADVOCATE FOR R-1; SRI H. T. JAGADEESH, ADVOCATE FOR R-2 AND R-3; SRI SHARANJITH SHETTY, ADVOCATE FOR R-4 TO R-6 AND R-8; R-7 IS SERVED AND UNREPRESENTED) * * * THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CIVIL PROCEDURE CODE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 02.12.2017 PASSED IN O.S.NO.22 OF 2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, ARASIKERE, DECREEING THE SUIT FOR DAMAGES. THIS REGULAR FIRST APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR and HON'BLE MR JUSTICE VENKATESH NAIK T - 4 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 ORAL JUDGMENT (PER: HON'BLE MR JUSTICE VENKATESH NAIK T) This appeal is filed by the appellants-State challenging the judgment and decree dated 02.12.2017 passed by the learned Senior Civil Judge and JMFC, Arsikere (herein after referred to as 'the trial Court', for brevity) in O.S.No.22/2013. 2. For the purpose of convenience, the parties are referred to as per their ranking before the trial Court. The appellants are defendant Nos.14, 13, 12, 1 to 5, 7 to 9 and 11 respectively and respondents are plaintiff, defendant Nos.6 and 10 respectively. 3. The brief facts of the case are that, the plaintiff filed suit for damages on account of loss sustained by him by the defendants. The suit schedule property is a site bearing No.318 of Sathanakere Village, Kanakatte Hobli, Arsikere Taluk measuring East-West 40 feet and North-South 40 feet. The schedule property was granted in favour of one Somashekharappa, S/o Marulappa, resident of Sathanakere Village and on 2.10.1989, the grant certificate was issued and possession was delivered to him, who had got khata changed - 5 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 in his name at Kanakatte Grama Panchayat, thus, Somashekharappa became the absolute owner of the schedule property. On 26.12.2002, the plaintiff purchased schedule property from Somashekarappa under registered sale deed and he was put in possession of the property, he changed khata in his name and he was paying taxes to the Panchayat, obtained license from Kanakatte Grama Panchayat and constructed the residential house in the said site by incurring more than Rs.8.00 lakhs during the year 2008. Prior to year 2008, the plaintiff S.M. Jayanna had filed suit in O.S.No.31/2003 against his vendor Somashekharappa for the relief of permanent injunction in respect of the schedule property and obtained decree in the said suit. After construction of residential house on the schedule property, plaintiff and his family members were residing in the said house. When things stood thus, during the first week of June 2013, the Tahsildar, Arsikere and his staff came to the house of plaintiff and informed that the schedule property does not belong to Grama Panchayat and it is situated within the vicinity of Lake, which comes under Revenue Department. Accordingly, the plaintiff issued notice dated 14.06.2013 to - 6 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 defendants and no reply was given by them. The schedule property is surrounded by temple of Someshwara Swamy, Government School and another Government school property, there is a road and after that there is house of one Doddamallappa. However, on 29.06.2013, defendant No.1 and his staff came to the schedule property and suddenly started demolishing the residential house, where plaintiff had stored nearly 25,000 coconuts. Due to the threat of defendants, plaintiff took out the coconuts and other residential essentials from the house. However, before demolition, no notice was given by the defendants and the plaintiff did not have any opportunity to put forth his say in the matter. Immediately, the plaintiff approached the Gram Panchayat and came to know that the schedule property does not belong to Kere Angala (Lake premises), therefore, the demolition undertaken by the Tahsildar and his staff members, without giving any notice to the plaintiff, would amount to illegal act and thus, they are liable to pay damages to the plaintiff, which is assessed for a sum of Rs.11 lakhs, hence, the plaintiff filed the suit for recovery of damages from the defendants. - 7 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 4. After institution of the suit, defendant Nos.1 to 6, 8, 12 to 14 appeared through learned DGP, defendant Nos.4, 7, 9 and 11 also appeared through their counsel and filed their written statement. However, defendant No.10 was placed exparte. In the written statement, defendant No.4 the Taluk Surveyor, Arsikere Taluk, Hassan District has taken the contention that the suit schedule property situated in Kanakatte Grama Panchayat belongs to Sathanakere Gramatana Property. Sathanakere is a Government Kere Angala, thus, the Government is the owner of the property. However, defendant No.4 denied the allegations that, defendants illegally demolished the house and caused damage to the plaintiff. Defendant No.4 specifically contended that, they have demolished the house of the plaintiff as per the order of the Court and as per the order passed by the Deputy Commissioner, Hassan District, thus, defendant No.1 has undertaken the work of removal of structure constructed on the schedule property. Further, the plaintiff was not permitted by the Government to construct the building in the schedule property. Defendant Nos.1 to 3, 13 and 14 have contended that, the plaintiff constructed the - 8 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 house in Government property i.e., Kere Angala of Sathanakere Village, therefore, the plaintiff did not have any right, title and interest over the schedule property, as it has not belonged to Grama Panchayat and therefore, the defendants have acted in accordance with law and removed the structure constructed in the schedule property. Hence, they are not liable to pay damages, thus, prayed for dismissal of the suit. 5. On the basis of the pleadings, the trial Court framed the following issues. ISSUES 1. Whether the plaintiff proves that the 1st defendant and his staff demolished the residential house and latrine and caused loss of Rs.10,00,000/-? 2. Whether the plaintiff is entitled for the reliefs sought for? 3. What order or decree? 6. To prove the case of the plaintiff, the plaintiff himself was examined on oath as PW.1, he also got examined other three witnesses as PW.2 to PW.4 and relied upon in all 67 documents as per Exs.P1 to P67. On the other hand, one Manjunatha - 9 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 defendant No.4 and defendant No.7 Kotturaiah were examined as DW.1 and DW.2 and relied upon 9 documents as per Exs.D1 to D9. 7. On the basis of the oral and documentary evidence on record, the trial Court answered issue Nos.1 and 2 in the affirmative and consequently decreed the suit of the plaintiff and directed the defendants to pay damages for a sum of Rs.11.00 lakhs with interest at 18% p.a. from the date of the suit till its realization. 8. Being aggrieved by the judgment and decree of the trial Court, the defendants preferred this appeal. 9. Heard the learned counsel appearing for the plaintiff and learned counsel appearing for the defendants. 10a. Sri Harisha A.S., learned AGA for appellants, submits the impugned judgment is contrary to the oral and documentary evidence on record. The trial Court grossly erred in holding that respondent No.1 had proved that, he is the owner and in possession of the suit schedule property, wherein it is specifically contended by the appellants that, the suit - 10 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 schedule property is Kere Angala/lakebed/tank bund property and the same belongs to the State Government. That, neither the then Mandal Panchayat nor the Grama Panchayat had powers to grant lakebed property in favour of any third parties. Thus, the court below misdirected in deciding the title to the suit property without considering the contention that, the suit property being lakebed area and which is Government property, cannot be granted in favour of third parties. Hence, the impugned judgment is liable to be set aside. Further, the trial Court has grossly erred in not considering the contention of the appellants regarding the legality and validity of the alleged grant certificate/hakku patra issued by the then Mandal Panchayat in favour of the vendor of the plaintiff herein. Admittedly, respondent No.1/plaintiff before the trial Court had not proved the validity of the alleged grant Certificate. It is also the contention of the appellants that the grant certificate issued by the then Mandal Panchayat is not only a void document, but it is also concocted one. A bare perusal of the said document clearly evidences tampering by way of over- writing in the said document in respect of measurement columns and, the said document is signed by the President of - 11 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 Kanakatte Mandal Panchayat and it does not contain the signature of any officials of the Mandal Panchayat. Further, allotment of the same shall be after obtaining prior permission from the higher authorities and the said grant certificate does not refer to any proceedings or resolution and its approval by higher authorities. Further, the sites will be allotted in blocks and in the present case on hand, except respondent No.1/plaintiff claiming to have been allotted, no other individual were allotted sites. Hence, the reliance placed by the court below on hakku patra is erroneous and the impugned judgment is liable to be set aside. 10b. Further, the trial Court also erred in admitting the said Hakku Patra to hold respondent No.1/plaintiff as owner of the above site. Respondent No.1 had contended that, he purchased the alleged site from the grantee under registered sale deed on 26.12.2002 and thereafter, it is asserted that, he obtained license and constructed the building and to prove the said contention, respondent No.1/plaintiff had got produced license issued by the Grama Panchayat as per Exhibit-P14. A bare perusal of the said license issued by the Secretary, Grama Panchayat, Kanakatte and in which, the date of filing - 12 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 application for grant of license for construction of building has been mentioned as 15.12.2002 i.e., the date much prior to the execution of sale deed in favour of respondent No.1/plaintiff dt:26.12.2002. Further, the measurement of the site is also mentioned as 15ft X 35feet. Thus, the grant certificate and subsequent documents produced by respondent No.1 and relied upon by the trial Court to hold respondent No.1 herein as owner is bad and illegal and the impugned judgment is liable to be set aside. 10c. The trial Court has also not properly appreciated the oral evidence of respondent No.1/plaintiff and his witnesses. Respondent No.1/plaintiff and also his witnesses mainly, PW.2 have admitted that the suit property falls within Sy.No.88 of Sathanakere Village and it is Government lake. When such being the admission of respondent No.1/plaintiff and his witnesses, the findings of the trial Court that, respondent no.1 herein is owner and in possession of the said property being not tenable in law, the same required to be set aside. 10d. Further, the trial Court has erred in not considering the oral and documentary evidence of the appellants herein. - 13 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 Appellant No.4 herein, namely, the Tahsildar has deposed that, in pursuance of the directions of the Hon'ble Court passed in W.P.No.817 of 2008 and connected matters dated 11.04.2012 and in view of the Government order dt:02.05.2013 and the directions of the Deputy Commissioner,dated 12.6.2013, the land bearing Sy.No.88 of Sathanakere Village was surveyed and on finding that, there has been encroachment by respondent No.1 and one Sri.Rangappa, being duly intimated, further action was taken for evicting them. Thus, respondent No.1 being duly notified about his encroachment and for its removal and thereby, it cannot be presumed that the appellants' action of eviction of respondent No.1 as illegal and order for payment of damages is erroneous and liable to be set aside. 10e. Further, the trial Court has erred in holding that the appellants have not denied the averments of the respondent No.1/plaintiff about his ownership and possession over the suit property. Appellant No.4 had filed detailed written statement on behalf of himself and other appellants and denied title and possession of respondent No.1 over the suit schedule property and contended that, the suit schedule property is Kere Angala - 14 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 and the then Mandal Panchayat has no power or authority to grant the said land. The reliance placed by the trial Court on Exhibits-P1 to P14 alleged grant certificate, tax paid receipts, assessment extracts, sale deed, building license are all baseless. The above documents are concocted and fraudulent one. Exs.P1 and P2 are not tax paid receipts and assessment extracts marked as Exhibit-P5 and so on are all created and fraudulent documents for the purpose of the above suit. The Assessment extract for the year 1994-95 is issued both by Mandal Panchayat and Grama Panchayat and admittedly, Mandal Panchayat was not in existence after, 1993. Three assessment extracts are produced and marked as Exhibits-P7 and P11 for the same year, 2002-03 and one of the assessment extracts refer to khata No.175 and other assessment does not refer to the said khata number. Thus, the documents and reliance placed on the said documents without its proper verification is liable to be rejected. Hence, on all these grounds, he prays to allow the appeal. 11. Sri A.V. Gangadarappa, learned counsel for the plaintiffs contended that the plaintiff was the owner of the suit schedule property, he purchased the schedule property - 15 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 under registered sale deed dated 26.12.2002 from one Somashekharappa, he obtained license from Kanakatte Grama Panchayat and constructed residential house, but, the defendants without issuing notice to the plaintiff, demolished entire building, falsely contending that the suit schedule property comes within the jurisdiction of lake. Accordingly, demolished the same illegally without following any due process of law, thus, defendants are liable to pay damages to the plaintiff. The counsel contended that the trial Court based on oral and documentary evidence on record has rightly decreed the suit, thus, no interference is called for in this regard, thus, prayed for dismissal of the appeal. 12. Heard, perused the records and considered the arguments of learned counsel for the parties. The points that arise for our consideration are: 1. Whether the defendants/appellants proved that the suit schedule property fall within the limits of lake and the plaintiff constructed the building illegally, thus, they demolished the building by following due process of law? - 16 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 2. Whether the plaintiff proved that defendant No.1 and his staff demolished his building without serving notice on him and thereby, caused loss of Rs.11.00 lakhs? 3. Whether the judgment and decree passed by the trial Court calls for interference at the hands of this Court? Re:Points No.1 and 2: 13. As Point Nos.1 and 2 are interlinked with each other, we have taken up these points for discussion at one stretch. 14. It is the case of the plaintiff that, he is the absolute owner of suit schedule property by virtue of registered sale deed dated 26.12.2002, having purchased the same from one Somashekharappa, the same was granted to him under grant certificate dated 02.10.1989. Later, the plaintiff constructed house, but, the defendants demolished the said house claiming that the schedule property does not come within the jurisdiction of Kanakatte Grama Panchayat, but, it comes under the purview of lake, thus, the Revenue Department has jurisdiction over it. - 17 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 15. In order to prove this aspect, the plaintiff was examined as PW.1 and he has reiterated the averments made in the plaint. In support of his oral evidence, he has examined other three witnesses as PWs.2 to 4, who supported the version of PW.1. But, nothing was elicited from their cross examination in order to discredit their oral testimony. From the perusal of the cross examination of PW.1, it appears that the defendants have not suggested any questions to the effect that the plaintiff is not the owner in possession of the suit schedule property. 16. For the defence, the Taluk Surveyor was examined as DW.1, who has admitted in his cross examination that the suit schedule property belongs to the plaintiff. Defendant Nos.2 and 3's evidence discloses that they too have not disputed that plaintiff is the owner in possession of the suit schedule property. Therefore, from the perusal of Ex.P3 Hakku patra issued in the name of vendor of the plaintiff, Ex.P13 sale deed, Exs.P1 and P2 tax paid receipts, Exs.P4 to 7 Assessment extracts and Ex.P14 license issued by Mandal Panchayat and other exhibited documents, they - 18 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 clearly indicate that the plaintiff is the absolute owner of the suit schedule property having purchased the same from original grantee S.M. Somashekarappa under registered sale deed and after obtaining necessary license from Panchayat, the plaintiff had put up construction and residing there by paying taxes to the concerned authorities. 17. It is further evidence of the plaintiff that, during the first week of June 2013, the Tahsildar and his staff came near the schedule property, measured the same and informed the plaintiff that, it belongs to Kanakatte Kere Angala and not to the Grama Panchayat. On 29.06.2013, defendant No.1 and his staff came and started demolition of the building of plaintiff without giving any notice to the plaintiff nor an opportunity of being heard on that aspect. In support of his contention, the plaintiff relied upon Ex.P16 notice under Section 80 CPC. Ex.P26 endorsement, Ex.P27 sketch of Grama Tana, Ex.P34 letter of Zilla Panchayat, Hassan District, Exs.P56 to P64 photographs and Ex.P65 CD. They clearly indicate that defendant No.1 and his sub-staff came to the schedule property on 29.06.2013 and demolished the - 19 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 schedule property without giving any notice to the plaintiff. On the other hand, defendants have relied upon Ex.D1 the report about the survey and measurement of the land, Ex.D2 mahazar, Ex.D3 and Ex.D4 requisitions and Ex.D5 and Ex.D8 survey sketch, which indicate that survey No.88 was measured and came to know that some of the land owners have encroached the Kere Angala property. As per the report of surveyor-Ex.D1, it discloses that 1 gunta was encroached by one Somashekharappa, who is vendor of the plaintiff and therefore, the defendants have undertaken the work of demolition vide Ex.D2. Further, as per the contentions taken by the defendants in their written statement, the suit schedule property falls within Kere Angala and it is Government property, whereas, Ex.D1 survey report shows that vendor of plaintiff Somashekharappa had encroached only 1 gunta of Kere Angala, it clearly establishes that, there is contradiction between pleadings containing written statement and the documentary evidence produced by the defendants. Hence, the contentions taken by the defendants create ambiguity. It is also evident from the records that, if at all the plaintiff were to be issued any notice before - 20 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 demolition, he would have suitably replied, but, the defendants did not issue such notice, thereby, violated the principles of natural justice and proceeded with the demolition work. 18. From the perusal of the oral and documentary evidence on record, it appears that the schedule property now falls within purview of Panchayat. 19. In the instant case, the scope of the present appeal is very limited. The question that will have to be considered is, as to ''whether the property of the plaintiff, who is alleged to have encroached the Government land (Lake area) is liable to be demolished without following the due process of law or not?'' 20. For considering the said question, we are required to consider the principle of the rule of law, which is the very foundation of democratic governance. We will also have to consider the rights guaranteed under the Constitution that provide protection to individuals from state's arbitrary action. We will also have to consider in this case the issue with regard to the fairness in the process of demolition of building of the plaintiff. We will also have to touch upon the concept of - 21 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 separation of powers and the doctrine of public trust in respect of government officials holding their offices. 21. There can be no doubt with the principle that, no one is above the law of the land; that everybody is equal before the law. 22. There can also be no doubt with the principle that, under the constitutional framework, there is no scope for arbitrariness by officials, and that no one, can be punished or made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. It is only the courts, which are independent adjudicators of the rights of the parties and under the constitutional framework, it is only Competent Authority by following due process of law to take action against the encroachers. 23. The rule of law has also been described as an umbrella concept for a number of legal and institutional instruments to protect citizens against the power of the State. Moreover, Rule of law is integral to and necessary for democracy and good governance, because attempts to - 22 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 democratize without a functional legal system in place have resulted in social disorder. 24. It can thus be seen that the law must be just and fair, and also protect the human rights and dignity of all members of society. At the same time, the essential purpose of the rule of law is to prevent the abuse of power. 25. If the executive in an arbitrary manner demolishes the houses of citizens only on the ground that they encroached the Lake area (Government land), then it acts contrary to the principles of 'rule of law'. If the executive acts as a judge and inflicts penalty of demolition on a citizen, on the ground that he encroached the Government land, it violates the principle of 'separation of powers'. We are of the view that in such matters the public officials, who take the law in their hands, should be made accountable for such high-handed actions. 26. For the executive to act in a transparent manner so as to avoid the vice of arbitrariness, we are of the view that certain binding directives need to be formulated. This will ensure that public officials do not act in a high-handed, - 23 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 arbitrary, and discriminatory manner. Further, if they indulge in such acts, accountability must be fastened upon them. 27. From the above discussion, the position that would emerge is that, firstly, even the accused or the convicts have certain rights and safeguards in the form of constitutional provisions and criminal law. Secondly, the State and its officials cannot take arbitrary and excessive measures against the accused or for that matter, even against the convicts without following the due process as sanctioned by law. The third principle that would emerge is that when the right of an accused or a convict is violated on account of illegal or arbitrary exercise of power by the State or its officials or on account of their negligence, inaction, or arbitrary action, there has to be an institutional accountability. One of the measures for redressing the grievance for violation of a right would be to grant compensation. At the same time, if any of the officers of the State has abused his powers or acted in a totally arbitrary or mala fide manner, he cannot be spared for such illegal, arbitrary, mala fide exercise of power. - 24 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 28. As discussed hereinabove, the rule of law, the rights of the citizens guaranteed under the Constitution, and the principles of natural justice would be essential requirements. If a citizen's house is demolished merely because he encroached the Government land, that too, without following the due process as prescribed by law, in our considered view, it will be totally unconstitutional. The executive cannot become a judge and decide that a person who encroached the land is guilty and therefore, punish him by demolishing his residential/commercial property/properties. Such an act of the executive would be transgressing its limits. 29. The chilling sight of a bulldozer demolishing a building, when authorities have failed to follow the basic principles of natural justice and have acted without adhering to the principle of due process, reminds one of a lawless state of affairs, where "might was right". In our Constitution, which rests on the foundation of the 'rule of law', such high-handed and arbitrary actions have no place. Such excesses at the hands of the executive will have to be dealt with the heavy hand of the law. Our constitutional ethos and values would not - 25 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 permit any such abuse of power and such misadventures cannot be tolerated by the court of law. 30. As we have already said, such an action also cannot be done in respect of a person who encroached the land and constructed residential building. Even in the case of such a person, the property/properties cannot be demolished without following the due process as prescribed by law. 31. Such an action by the executive would be wholly arbitrary and would amount to abuse of process of law. The executive in such a case would be guilty of taking the law in his hand and giving a go-bye to the principle of the rule of law. RIGHT TO SHELTER 32. There is another angle to this problem. It is not only the encroacher who lives in such property or owns such property. If his spouse, children, parents live in the same house or co-own the same property, can they be penalized by demolishing the property without them even being involved in any crime only on the basis of them being related to an alleged encroachment? What is their mistake if their family member or their vendor encroached the property? As is well known, a - 26 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 pious father may have a recalcitrant son and vice versa. Punishing such persons who have no connection with the crime by demolishing the house where they live in or properties owned by them is nothing but an anarchy and would amount to a violation of the right to life guaranteed under the Constitution. 33. The right to shelter is one of the facets of Article 21 of the Constitution of India. Depriving such innocent people of their right to life by removing shelter from their heads, in our considered view, would be wholly unconstitutional. 34. It was sought to be urged by the learned AGA that the plaintiff encroached lake area (Kere angala) and constructed building on the basis of khata certificate and license issued by Kanakatte Grama Panchayat and therefore, the Government thought it fit that, similar persons who have encroached the lake area, as such, the Government authorities have undertaken for removal of such encroachment. In that scenario, the defendants in this case also undertook to demolish the building of the plaintiff, since the construction was found to be illegal, as the vendor of plaintiff had encroached 1 - 27 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 gunta of land, which alleged to be belonged to Kere angala. It was submitted that the house was demolished, since it was found to be within the purview of Kere Angala, which belonged to the plaintiff. He, however, reiterated that it was the stand of the State Government that such properties can be demolished only in accordance with the procedure prescribed by law. 35. This position is disputed by the learned counsels appearing on behalf of the plaintiff. It is stated that the chain of events clearly depicts that the demolition of the houses was an immediate reflection of the persons being encroachment of lake area. It was submitted that the time gap between the person encroaching the Government land and demolition of his property/properties, made it apparent that the punishment of demolition was inflicted by the executive on being he encroached the land. It was also submitted that in case of demolition of the property by an alleged encroacher, it is difficult to believe that only a single construction belonging to the plaintiff is unauthorized construction, whereas all other structures in the vicinity are legal and authorized as per local laws. We have perused the photographs produced before the trial Court, wherein, it clearly depicts that there is RCC building - 28 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 towards left side of the schedule property and in front of the schedule property, there is public water tank and behind the schedule property, there is one residential building. 36. Though the learned AGA may be right in submitting that in some cases, it may be, by sheer coincidence, that the properties, which were in breach of local municipal laws governing them also happen to belong to the encroacher, however, when a particular structure is chosen, all of a sudden for demolition and the rest of the similarly situated structures in the same vicinity are not even being touched, mala fide may loom large. In such cases, where the authorities indulge into arbitrary pick and choose of the structures and it is established that soon before initiation of such an action, an occupant of the structure, was found to encroach the Government land, a presumption could be drawn that the real motive for such demolition proceedings was not the illegal structure, but an action of penalizing the encroacher without even trying him before the court of law. No doubt, such a presumption could be rebuttable. The authorities will have to satisfy the court that it did not intend to penalize a person by demolishing the structure. - 29 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 37. While considering the issue with regard to the demolition of the houses which are required to be demolished for breach of the local laws, we find that the principle of the rule of law needs to be considered even in the municipal laws. There may be certain unauthorized constructions which could be compoundable. There may be certain constructions wherein only part of the construction is required to be removed. In such cases, the extreme step of demolition of the entire property/house property would, in our view, be disproportionate. 38. As already discussed herein above, the right to shelter is one of the facets of Article 21 of the Constitution. If the building are to be demolished, then for taking such steps the concerned authorities must satisfy themselves that such an extreme step of demolition is only available and other options including compounding and demolition of only part of the house property are not available. 39. It is also to be noted that the construction of a house has an aspect of socio-economic rights. For an average citizen, the construction of a house is often the culmination of years of - 30 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 hard work, dreams, and aspirations. A house is not just a property, but embodies the collective hopes of a family or individuals for stability, security, and a future. Having a house or a roof over one's head gives satisfaction to any person. It gives a sense of dignity and a sense of belonging. If this is to be taken away, then the authority must be satisfied that this is the only option available. 40. Right to life is a fundamental right. As already discussed herein above, with the expanded scope of law, the right to shelter has also been considered as one of the facets of Article 21 of the Constitution. In one structure, various people or may be even a few families could reside. The question that is required to be considered is as to whether if only one of the residents of such a structure is an encroacher, could the authorities be permitted to demolish the entire structure thereby removing the shelter from the heads of the persons, who are not directly or indirectly related with the allegation of encroachment of the Government land. In fact, the plaintiff purchased the schedule property from his vendor. - 31 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 41. It is a settled principle of criminal jurisprudence as recognized in our Country, that a person is presumed to be innocent till he is held guilty. In our view, if demolition of a house is permitted wherein number of persons of a family or a few families reside only on the ground that one person residing in such a house, including the encroacher, it will amount to inflicting a collective punishment on the entire family or the families residing in such structure. In our considered view, our constitutional scheme and the criminal jurisprudence would never permit the same. 42. In order to allay the fears in the minds of the citizens with regard to arbitrary exercise of power by the officers/officials of the State, we find it necessary to issue certain directions to the Government authorities. We are also of the view that even after orders of demolition are passed, the affected party needs to be given some time so as to challenge the order of demolition before an appropriate forum. 43. We are of further view that, even in cases of persons who do not wish to contest the demolition order, sufficient time needs to be given to them to vacate and arrange their affairs. - 32 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 It is not a happy sight to see women, children and aged persons dragged to the streets overnight. Heavens would not fall on the authorities if they hold their hands for some period. 44. The Hon'ble Apex Court, In Re: Directions in the matter of demolition of structures reported in 2024 INSC 866=2024 LiveLaw (SC) 884, has held that if the authorities demolish the structure/building without due process of law, they are held responsible, accordingly, the Hon'ble Apex Court issued directions and SOP at paras 90 to 99 of the said judgment. 45. In view of the similar facts and circumstances of the case and the ratio laid down in the decision cited supra, it clearly establishes that, the defendants demolished the building of plaintiff without prior show cause notice returnable either in accordance with the time provided by the local municipal laws or within 15 days' time from the date of service of such notice, whichever is later. 46. It further establishes that the notice was not served upon the plaintiff/his family members by a registered post acknowledgement due. - 33 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 47. The designated authority have not given an opportunity of personal hearing to the plaintiff and the minutes of such hearing are not recorded. Upon such hearing , the designated authority ought to pass a detail order, which contains the content of notice and if the designated authority disagrees with the same, the reasons thereof ought to have been furnished, but, the authority have not done so. The authorities have also not worked as to whether the unauthorized construction is compoundable, if it is not so, the reasons thereof. 48. Further, the authorities have not assigned any reasons as to why the extreme step of demolition was the only option available and other options like compounding and demolishing only part of the property are not available. Furthermore, the authorities have not given any opportunity to the plaintiff to remove such construction or demolish the same within a period of 15 days. Only after 15 days, from the date of receipt of notice has expired and if the plaintiff were not removed/demolished the house and if the same is not stayed by any authority or a Court, then the concerned authority shall take steps to demolish the same. Further, before demolition, a - 34 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 detailed instruction report has not been prepared by the concerned authority. Therefore, the trial Court discussed the issue before it in length, considered pleadings of the parties, oral and documentary evidence on record and has rightly decreed the suit and saddled the liability on the defendants to pay damages in a sum of Rs.11.00 lakhs, which is based on a detailed consideration. Hence, no interference is called for in that regard. 49. So far as interest is concerned, learned AGA for appellants-State contended that the trial Court imposed interest at the rate of 18% p.a. from the date of the suit till realization, which is high and exorbitant. 50. As per Section 34 of Code of Civil Procedure, 1908, in so far as interest, where and in so far as decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principle from the date of the suit to the date of decree, which in our opinion, is exorbitant one, contrary to the provisions of Section 34 of CPC. Thus, it has to be reduced to 12% on par with or corresponding to the bank rate of interest. - 35 - NC: 2025:KHC:3436-DB RFA No. 1260 of 2018 51. Accordingly, the appeal filed by the State/appellant is dismissed. The judgment and decree passed by the learned Senior Civil Judge and JMFC, Arsikere in O.S.No.22/2013 dated 02.12.2017 is hereby confirmed. 52. In so far as rate of interest is concerned, it is reduced to 12% from 18% from the date of the suit till its realization. Sd/- (K.SOMASHEKAR) JUDGE Sd/- (VENKATESH NAIK T) JUDGE MN/-