Town Area Committee v Prabhu Dayal (1974)

This is the standing Indian authority for two propositions that are always examined together and are always confused with each other.

The first is damnum sine injuria — damage without legal injury. A plaintiff who has genuinely lost money may still recover nothing, because the law compensates the invasion of a legal right, not the suffering of harm.

The second is the rule that motive is irrelevant in tort. An act lawful in itself does not become a tort because the actor did it out of spite. That is the Indian counterpart of Bradford Corporation v Pickles, and it is stated here in a sentence students can carry into the examination hall: "Malice does not enter the scene at all. A legal act, though motivated by malice, will not make the actor liable to pay damages."

The case joins the two propositions in a single set of facts, which is why it is set so often.

The plaintiff, Prabhu Dayal, had made constructions of sixteen shops on the old foundations of a building known as Garhi. The Town Area Committee, acting through its Chairman and Vice-Chairman (defendants 2 and 3), demolished these constructions. The plaintiff alleged a loss of Rs. 1,000 and sued for compensation. Defendant 4 was the State of U.P.

His case was that the notice under s. 186 of the U.P. Municipalities Act was bad because it gave him only two hours to demolish the constructions, and not the reasonable time contemplated by s. 302 of the Act; that the notice had been served at a time when he was out of station; and that the action was mala fide.

The defendants pleaded that the constructions had been made without giving notice of intention to erect the building under s. 178 and without obtaining the sanction required by s. 180; that the action was not mala fide; that a notice had been given earlier, on 18 December, requiring the stoppage of further construction and the removal of what had been built; that on non-compliance the District Magistrate had directed the Town Area Committee to take action under s. 186; that a further notice was given on 21 December, also not complied with; and that only then was the building demolished, in accordance with law.

The trial Court found that the plaintiff had built without complying with s. 178 and without the sanction required by s. 180; that those provisions had been made applicable to the town area; that in the absence of sanction the Board had a right to demolish; and that the notice had given reasonable time because the earlier notice had not been complied with. The suit was dismissed.

The first appellate Court allowed the plaintiff's appeal and decreed the suit against defendants 1 to 3, dismissing it against the State. It held that the Chairman and Vice-Chairman had acted with malicious intention in ordering the demolition; that the District Magistrate's order could not legalise the demolition because the notice had not given reasonable time; and, on the finding that the defendants' action was high-handed, it awarded damages.

Defendants 1 to 3 brought this second appeal.

The respondents objected that no second appeal lay: the damages claimed were Rs. 1,000, the suit was of a nature cognisable by a Court of Small Causes, and s. 102 of the Code therefore barred a second appeal.

Hari Swarup J rejected this. Section 15 of the Provincial Small Cause Courts Act makes all suits cognisable by a Court of Small Causes except those specified in the second schedule, and clause 35(j) exempts a suit for compensation "for illegal, improper or excessive distress, attachment or search, or for trespass, committed in or damage caused by, the illegal or improper execution of any distress, search or legal process". The suit, on the plaintiff's own case, was for compensation for damage caused by the illegal execution of a legal process.

Counsel argued that the exception applies only where the process is legal and the execution alone is illegal, and that here the process itself was challenged. The Judge declined to read such a distinction into clause (j). It was not understandable, he said, that the legislature would exclude from the Small Cause Court a case where the process was legal and the execution illegal, but leave a case where both were illegal to that summary forum. In either case the actual damage is suffered not by the issue of the legal process but by its execution. The suit was accordingly not cognisable by the Court of Small Causes, was rightly instituted before the Munsif, and a second appeal lay. The objection was overruled.

On the merits, the Judge held that the lower appellate Court "has completely misdirected itself". The claim was for damages caused by an act of the defendants, and "The plaintiff can get compensation only if he proves to have suffered injury because of an illegal act of the defendant and not otherwise."

Then comes the central passage: "Malice does not enter the scene at all. A legal act, though motivated by malice, will not make the actor liable to pay damages." The proposition was supported by an observation from Salmond on the Law of Torts, Fifteenth Edition, at page 18: "So too a landlord who serves a valid notice to quit cannot be held liable in tort because his motive was the vindictive one of punishing the tenant for having given evidence against him in other proceedings."

The application to a public authority follows: "Merely because some officer has malice against a citizen who has committed a wrong will not render the action of the authority invalid if it is otherwise in accordance with law." Mere malice cannot disentitle a person from having recourse to law to get a wrong undone. It was therefore unnecessary to investigate whether the action had been motivated by malice at all — which disposed of the very finding on which the first appellate Court had decreed the suit.

The second limb is the requirement of injuria. Before a plaintiff can get damages he must prove that he has suffered an injury in the legal sense. "Law does not take into account all harms suffered by a person which caused no legal injury." Damage of that kind is called damnum sine injuria, and "Such a damage does not give the sufferer any right to get compensation." The term injuria, the Judge said, "is to be understood in its original and proper sense of wrong" — in jus, contrary to law, following Salmond at page 17.

Here the plaintiff was himself the wrongdoer. He had given no notice under s. 178 and obtained no sanction under s. 180, though the building abutted a public street so that both were necessary — findings of the trial Court that the appellate Court had not reversed. Section 185 makes it an offence punishable with fine to begin, continue or complete the erection of a building without the notice required by s. 178 or in contravention of s. 180, and s. 186 gives the Board power to demolish a construction the making of which is an offence under s. 185. The demolition was thus the exercise of a statutory power against an admitted offence.

On reasonable time. Counsel argued that the demolition was not in accordance with law because the notice did not give reasonable time. The Judge accepted that the first notice, though of an earlier date, was served on the 18th and required demolition before the 18th, so that it could not be complied with in its terms — but that did not authorise the plaintiff to maintain constructions illegally made. The plaintiff did not appear before the authority to show cause. Three days later a second notice was given and the building was then demolished. No objection had been taken that the two hours allowed by the notice of the 21st were insufficient. Had the plaintiff complained that he suffered loss because the demolition was done the same day, and that greater time would have avoided that loss, the Judge said, it would have been a different matter. But the plaintiff's case was that he had a right to maintain the building and that the Board's action was bad because it was mala fide: "In this plea the time factor ceases to be of any importance."

On the fundamental right to property. It was argued that the plaintiff had suffered injuria because he had a fundamental right to hold and enjoy his property even though it had been constructed without prior sanction. The Judge rejected this in two sentences that are worth learning: "There is no right to enjoy property not legally obtained or constructed." A person has by law a right to construct a building, but that right is restricted by various enactments, one of which is the U.P. Municipalities Act; and if a person constructs a building illegally, its demolition by the municipal authorities is no injuria to him. "No person has the right to enjoy the fruits of an act which is an offence under law."

The plaintiff having failed to prove that he had suffered injuria in the legal sense, he was not entitled to any compensation, and the decree of the Court below could not be sustained even though he may have suffered damage. The appeal was allowed, the decree of the lower appellate Court set aside and that of the trial Court restored. Parties were left to bear their own costs.