Himachal Pradesh High Court
Vishan Dass & Anr vs State Of H.P. & Ors on 12 May, 2015
Bench: Rajiv Sharma, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 6604 of 2014.
Reserved on: 12.5.2015.
.
Decided on: 19.5.2015.
Vishan Dass & anr. ......Petitioners.
Versus
State of H.P. & ors. .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1
For the petitioners:
For the respondents: r to
Mr. P.P.Chauhan, Advocate.
Mr. Shrawan Dogra, AG with Mr. Romesh Verma, Mr. Anup
Rattan, Addl. AGs and Mr. J.K Verma, Dy. AG, for
respondents No. 1 to 5.
Mr. Ajay Mohan Goel, Advocate for respondents No. 6 & 7..
----------------------------------------------------------------------------------------------
Justice Rajiv Sharma, J.
The petitioners are owner-in-possession of land comprised in Kh. Nos. 619/548/386, measuring 00-44-88 hectares, Bagicha Kullahu Aval, Kh. No. 630/548/384 measuring 00-03-91 hectares, Bagicha Kullahu Aval, Kh. No. 500/386 measuring 00-15-60 hectares, Bagicha Kullahu Aval and Kh. No. 506/469 measuring 00-16-29 hectares, Banjar Kadim situated in Patwar Circle Kothi, Mauja Up-Mohal Ragura, Pargana Shua, Tehsil Kalpa, Distt. Kinnaur, H.P., as per jamabandi for the years 2003-04 and 2008-09 (Annexures P-1 and P-2).
2. The respondent No. 6 has undertaken the widening work of road called Pangi Intake road between 2006 to 2009. The Contractors employed by respondent No. 6 indiscriminately used explosives for cutting 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:09:55 :::HCHP 2and excavation of the hill rock. It resulted in creation of massive amount of huge boulders rolling down the hills causing total damage to the plants .
and land of the petitioners. The petitioner No. 1 visited the office of respondent No. 6-Corporation on many occasions but his grievance was not redressed. The petitioners made representations vide Annexure P-4, P-
4/A and P-5 on 19.5.2009, 27.12.2010 and 29.12.2010, respectively. The petitioners also approached the revenue authorities in order to get the damage assessed by visiting the spot.
3. The Kanungo submitted the report to the Tehsildar on 31.3.2011, stating therein that he has visited the site in the presence of the petitioners and it was found that the land owned by the petitioners stand littered with huge boulders during the construction of road for Kashang Hydro Electricity Project. The muck has also filled the fields of the petitioners. The Tehsildar submitted the report to the SDM concerned on 6.5.2011. The recommendations were also made by the SDM to the Deputy Commissioner vide letter dated 13.5.2011. The matter was taken up with respondent No. 6 vide Annexure P-9 by the Deputy Commissioner.
However, the grievance of the petitioners was not redressed. The District Agriculture Officer has submitted the report of assessment for the loss caused to the crop of the petitioners to the tune of Rs. 6,50,000/- vide Annexure P-15 dated 13.9.2012. The damage to the landed property of the petitioners was also assessed, as per Annexure P-16. It was assessed at Rs. 27,59,216/-. As a matter of fact, around 500 apple plants and 18 ::: Downloaded on - 15/04/2017 18:09:55 :::HCHP 3 chilgoza trees were damaged, as per the averments made in the petition.
The joint inspection was carried out by SDO, HPPWD in-charge with Asstt.
.
Engineer (Dev.)-cum- Member Secretary, Technical Committee for Hydro Electric Projects alongwith Junior Engineer LADC, in the presence of Asstt.
Engineer Integrated Kashang Hydro Electric Project and his staff. The demarcation was also undertaken by the Field Kanungo and Patwari of the Patwar Circle Kothi. They prepared the damage report as per HP PWD Schedule or rate 2009. The damage was duly verified by the Revenue Officer Field Kanungo on 1.9.2012. However, the fact of the matter is that the petitioners have not been paid any compensation. Hence this petition.
4. Respondent No. 6, in its reply, has admitted that it has undertaken the widening of the Pangi Intake road and the work has been got executed through the contractors engaged for the purpose. The land of the petitioners was below the road in question. However, according to the averments contained in the reply only 217 kg. explosive material was used and the reports have been prepared by the revenue agency and District Agriculture Officer, belatedly.
5. It is apparent from the material placed on record that the Kanungo has visited the spot and came to the conclusion that the plants and landed property of the petitioners was damaged as per Annexure P-6.
The Tehsildar has submitted the report to the SDM and the SDM has forwarded it to the Deputy Commissioner. The Deputy Commissioner, though has taken up the matter with the authorities of respondent No. 6 ::: Downloaded on - 15/04/2017 18:09:55 :::HCHP 4 but to no avail. The damage to the petitioners' property was separately assessed vide Annexure P-15, by the District Agriculture Officer on .
13.9.2012 and by the various functionaries of H.P. PWD, as per Annexure P-16.
6. According to the reply filed by respondent No. 5, the damage was only to the extent of Rs. 4,70,976/-, as per Annexure A-II. In Annexure A-II, it has come that the number of plants of apple completely damaged are 176. The age of the trees was 8 years, the basic value has been assessed at Rs. 774/- and the income for remaining bearing years at Rs. 1902/-. This calculation is not as per the Harbans Singh case formula to determine loss and damage caused to the fruit bearing trees. The assessment at Rs. 4,70,976/- only is on the very conservative side.
7. Mr. Shrawan Dogra, learned Advocate General for the State and Mr. Ajay Mohan Goel, Advocate for respondents No. 6 & 7, have vehemently argued that the present petition is not maintainable since the disputed questions of fact are involved and the petitioners should be relegated to file Civil Suit. We have gone through the petition and records.
We are of the considered view that on the basis of the material placed on record, duly supported by the affidavit, the present petition is maintainable. The petitioners have placed sufficient material on record from the various functionaries of the State that a colossal loss has been caused to the plants and landed property of the petitioners violating Article 300-A of the Constitution of India.
::: Downloaded on - 15/04/2017 18:09:55 :::HCHP 58. The officials of the revenue agency have visited the spot. The District Agriculture officer has also assessed the damage. The Courts have .
discretion to grant compensation under Article 226 of the Constitution of India for any infringement of Constitutional rights of the citizens. In the instant case, the damage has been caused to the petitioners' landed property and plants. The petitioners are agriculturists. The respondents, at their own level, should have redressed their grievances instead of forcing them to file the present petition.
9. The Division Bench of this Court in Collector L.A.C. Mandi vs. Karam Singh and others and connected matters, Latest HLJ 2000 (2) (HP) 694, while relying upon standing order No.28 of Financial Commissioner, has held that when the fruit bearing trees are acquired, trees distinctly and separately can be assessed. The Division Bench has held as under:
"12. The Director of the Horticulture of the State Government while % assessing the market value of the fruit bearing trees has been adopting the formula of Shri Harbans Singh. The Land Acquisition Collectors of the State have applied and adopted the same formula in awarding compensation of the fruit bearing trees separately. !n these factual position and circumstances, the State of Himachal Pradesh and the Land Acquisition Collector cannot be permitted to urge that they are not obliged to pay the amount of compensation on the basis of the Standing Order No. 28 and Shri Harbans Singh formula for acquired lands and fruit bearing tees separately. The Land Acquisition Collector is the agent of the State Government who makes offer to the claimants of the amount of compensation awarded in the awards and if the offer so made is not acceptable to the claimants, the claimants are ::: Downloaded on - 15/04/2017 18:09:55 :::HCHP 6 entitled to receive the amount of compensation under protest and make reference petitions under Section 18 of the Act for enhancement of the .
amount of compensation. Therefore, the State Govt. and the Land Acquisition Collector, who are appellants before us in these appeals cannot be permitted to raise the plea that the awards of the Collector and enhancement of the amount of compensation by the District Judges and Additional District Judges based upon the Government Standing Order, provisions contained in the Himachal Pradesh Land Records Manual and Shri Harbans Singh formula which allow compensation in respect of the land and fruit bearing trees separately. Nothing contrary has been brought to our notice and, therefore we do not think it proper to disturb the awards of the Courts below making enhancement of the amount of compensation for the land and the fruit bearing trees separately. These cases are squarely covered by the ratio of the judgment of the apex Court in State of J&K Vs. Mohammad Mateen Wani and others (Supra) and we do not find any merit in these appeals filed by the State and the Land Acquisition Collector challenging the awards on the grounds of assessment of compensation for lands and fruit trees separately.
According to para 28.9, the competent revenue officer has to assess the income from horticulture on the basis of age and kind of fruit-bearing plants according to formula evolved and approved by the Government of Himachal Pradesh, as per Appendix 'C' of Chapter 28. Appendix 'C' extract is taken from "the evaluation of fruit trees, basic principles and method by Shri Harbans Singh". This is commonly known as Harbans Singh formula. First part of Appendix deals with classification of fruit trees, value of the fuel of timber and final assessment of a tree. The value fuel of timber and final assessment of the tree, is to be made as under:
"Value of the Fuel of Timber:::: Downloaded on - 15/04/2017 18:09:55 :::HCHP 7
Most of the fruit trees yield comparatively small quantity of fuel. Only a few fruit trees will have any timber value. However, every tree will turn out some .
fuel on being cut down. The extent to which a tree will provide fuel will mainly depend upon the glint of the main limbs and size of the tree. Once one knows the estimated quality of fuel wood on a tree at the time of its acquisition, it is easy to calculate its value by taking into consideration the local market rates of such a non dry wood. As regards timber value the work relates to the forest Department.
Final assessment of a Tree:
Most of the factors affecting the value of a tree have been elucidated. It would appear that the value of a tree at a particular time will be the sum total of the basic value, income from the remaining bearing years of the tree and fuel value. There is another a important factor which cannot escape attention.
The owner of the tree will get payment for the future bearing capacity of the tree in one lot without incurring any expenditure on his tree, disposal of fruit etc. for the remaining bearing years. Normally he would have got income in yearly installments spread over a long period. There are obvious advantages and benefits in getting the income of all the future years in one lot. Such a compensation will be not justifiable. Keeping all these factors into consideration it has been felt that the value of the remaining bearing age of a tree may be reduced to 25 per cent. This will do justice to the owner of the tree getting the compensation and the agency paying the price in one lot. The final formula will thus be as follows:
Basic value of the tree + No. of remaining bearing years. x income per year x ¼ + Fuel value A. Basic value. An apple tree comes into bearing in the 6th year and as such it remains in sapling stage for 5 yeas. (Sl. No. 1 col. 5 of appendix).
(a) Non recurring expenditure: Rs.5.00 (col. 3 of appendix).
(b) Recurring expenditure for 5 years at the rate of Rs.5/- per year: Rs.59.80 (col. 4 of appendix).::: Downloaded on - 15/04/2017 18:09:55 :::HCHP 8
Or say total basic value 5+(5x5)= Rs.30.00 B. Assessment of Remaining Bearing Age:
.
A ten year old apple tree has already completed five years of bearing life. Average bearing life of an apple tree is 45 years (col. 6 of appendix). Having borne fruit for five years, the tree is expected to bear for another 40 years.
A class I apple tree will give an yearly income of Rs. 100 per year (Col. 7 of appendix). Thus the tree will give a total gross income of Rs.4000.00 during the remaining years of its bearing life. Future expenditure and payment in one lot will reduce the amount by one fourth to Rs.1000.00. or in other words (40x10x1/4)=Rs.1000 Fuel Value:
If the spot inspection reveals that the tree has about 5 quintals of wood and the local rate is Rs.5.00 per quintal of wet wood, the fuel value will be rs.25.00. Total value of a ten year old class I tree will thus be.
Rs.30.00 (Basic value) +Rs.1000 (Income from the remaining bearing years) +Rs.25.00 (Fuel value)=Rs.1055.00."
Similarly, now, the court has to determine the compensation for fruit bearing and non-fruit bearing trees. It has come in the standing order No. 28 that the value of the house and trees standing in the land has also to be worked out. Initially, these are worked out by the Department concerned. The compensation for fruit-bearing/non-fruit- bearing trees is to be determined as per Harbans Singh Formula and Appendix-C of para 28.9 of the Himachal Pradesh Land Records Manual. The Harbans Singh Formula was prepared in the year 1966, but while allowing the compensation, the inflationary trends have not been taken into consideration. The Division Bench of this Court in ::: Downloaded on - 15/04/2017 18:09:55 :::HCHP 9 1988 (1) Shim.L.C. 479 has taken into consideration the inflationary trends on the basis of price index while calculating the damage caused .
to the fruit bearing trees.
10. Their Lordships of the Hon'ble Supreme Court in Nilabati Behera (Smt) alias Lalita Behera (through the Supreme Court Legal Aid Committee) Vs. State of Orissa and others (1993) 2 Supreme Court Cases 746 have held that award of compensation in proceedings for enforcement of fundamental rights under Articles 32 and 226 is a remedy available in public law. Their Lordships have held as under
"8. The doctor deposed that all the injuries were caused by hard and blunt object; the injuries on the face and left temporal region were post-mortem while the rest were ante- mortem. The doctor excluded the possibility of the injuries resulting from dragging of the body by a running train and stated that all the ante-mortem injuries could be caused by lathi blows. It was further stated by the doctor that while all the injuries could not be caused in a train accident, it was possible to cause all the injuries by lathi blows. Thus, the medical evidence comprising the testimony of the doctor, who conducted the post-mortem, excludes the possibility of all the injuries to Suman Behera being caused in a train accident while indicating that all of them could result from the merciless beating given to him. The learned Additional Solicitor General placed strong reliance on the written opinion of Dr. K. K. Mishra, Professor & Head of the Department of Forensic Medicine, Medical College, Cuttack, given on 15-2-1988 on a reference made to him wherein he stated on the basis of the documents that the ::: Downloaded on - 15/04/2017 18:09:55 :::HCHP 10 injuries found on the dead body of Suman Behera could have been caused by rolling on the railway track in between the rail .
and by coming into forceful contact with projecting part of the moving train/engine. While adding that it did not appear to be a case of suicide, he indicated that there was more likelihood of accidental fall on the railway track followed by the running engine/ train. In our view, the opinion of Dr. K. K. Mishra, not examined as a witness, is not of much assistance and does not reduce the weight of the testimony of the doctor who conducted the post-mortem and deposed as a witness during the inquiry. The opinion of Dr. K. K. Mishra is cryptic, based on conjectures for which there is no basis, and says nothing about the injuries being both ante-mortem and post-mortem. We have no hesitation in reaching this conclusion and preferring the testimony of the doctor who conducted the post-mortem.
9. We may also refer to the Report dated 19-12-1988 containing the findings in a joint inquiry conducted by the Executive Magistrate and the Circle Inspector of Police. This Report is stated to have been made under S. 176, Cr. P.C. and was strongly relied on by the learned Additional Solicitor General as a statutory report relating to the cause of death. In the first place, an inquiry under S. 176, Cr. P.C. is contemplated independently by a Magistrate and not jointly with a police officer when the role of the police officer itself is a matter of inquiry. The joint finding recorded is that Suman Behera escaped from police custody at about 3 a.m. on 2-12-1987 and died in a train accident as a result of injuries sustained therein. There was handcuff on the hands of the deceased when his body was found on the railway track with rope around it. It is significant that the Report dated 11-3-1988 of the Regional ::: Downloaded on - 15/04/2017 18:09:55 :::HCHP 11 Forensic Science Laboratory (Annexure 'R-8', at p. 108 of the paperbook) mentions that the two cut ends of the two pieces of .
rope which were sent for examination do not match with each other in respect of physical appearance. This finding about the rope negatives the respondents' suggestion that Suman Behera managed to escape from police custody by chewing off the rope with which he was tied. It is not necessary for us to refer to the other evidence including the oral evidence adduced during the inquiry, from which the learned District Judge reached the conclusion that it is a case of custodial death and Suman Behera died as a result of the injuries inflicted to him voluntarily while he was in police custody at the Police Outpost Jeraikela.
We have reached the same conclusion on a reappraisal of the evidence adduced at the inquiry taking into account the circumstances, which also support that conclusion. This was done in view of the vehemence with which the learned Additional Solicitor General urged that it is not a case of custodial death but of death of Suman Behera caused by injuries sustained by him in a train accident, after he had managed to escape from police custody by chewing off the rope with which he had been tied for being detained at the Police Outpost. On this conclusion, the question now is of the liability of the respondents for compensation to Suman Behera's mother, the petitioner, for Suman Behera's custodial death.
10. In view of the decisions of this Court in Rudul Sah v. State of Bihar (1983) 3 SCR 508 : (AIR 1983 SC 1086), Sebastian M. Homgray v Union of India (1984) 1 SCR 904 : (AIR 1984 SC 571) and (1984) 3 SCR 544 : (AIR 1984 SC 1026), Bhim Singh v. State of J. & K., 1984 (Supp) SCC 504 and (1985) 4 SCC 677 : (AIR 1986 SC 494), Saheli, A Women's Resources ::: Downloaded on - 15/04/2017 18:09:55 :::HCHP 12 Centre v. Commr. of Police, Delhi Police Headquarters (1990) 1 SCC 422 : (AIR 1990 SC 513) and State of Maharashtra v.
.
Ravikant S. Patil (1991) 2 SCC 373 : (1991 AIR SCW 871) the liability of the State of Orissa in the present case to pay the compensation cannot be doubted and was rightly not disputed by the learned Additional Solicitor General. it would, however, be appropriate to spell out clearly the principle on which the liability of the State arises in such cases for payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in an action on tort. It may be mentioned straightway that award of compensation in a proceeding under Art. 32 by this Court or by the High Court under Art. 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings. We shall now refer to the earlier decisions of this Court as well as some other decisions before further discussion of this principle.
16. Lord Hailsham while dissenting from the majority regarding the liability for compensation in that case, concurred with the majority opinion on this principle and stated at page 687, thus :-
".............. I am simply saying that, on the view I take, the expression 'redress' in sub-s. (1) of S. 6 and the expression 'enforcement' in sub-s. (2), 'although capable of embracing damages where damages are available as part ::: Downloaded on - 15/04/2017 18:09:55 :::HCHP 13 of the legal consequences of contravention, do not confer and are not in the context capable of being construed so .
as to confer a right of damages where they have not hitherto been available, in this case against the state for the judicial errors of a judge ................."
Thus, on this principle, the view was unanimous, that enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention.
17. It follows that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to the remedy private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Arts. 32 and 226 of the Constitution. This is what was indicated in Rudul Sah (AIR 1983 SC 1086) ::: Downloaded on - 15/04/2017 18:09:55 :::HCHP 14 and is the basis of the subsequent decisions in which compensation was awarded under Arts. 32 and 226 of the .
Constitution, for contravention of fundamental rights.
22. The above discussion indicates the principle on which the Court's power under Arts. 32 and 226 of the Constitution is exercised to award monetary compensation for contravention of a fundamental right. This was indicated in Rudul Sah (AIR 1983 SC 1086) and certain further observations therein adverted to earlier, which may tend to minimise the effect of the principle indicated therein. do not really detract from that principle. This is how the decisions of this Court in Rudul Sah and others in that line have to be understood and Kasturilal (AIR 1965 SC 1039) distinguished therefrom. We have considered this question at some length in view of the doubt raised, at times, about the propriety of awarding compensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is a clear case for award of compensation to the petitioner for the custodial death of her son."
11. Their Lordships of the Hon'ble Supreme Court in Chairman, Railway Board and others Vs. Chandrima Das (Mrs) and others (2000) 2 Supreme Court Cases 465 have held that the State has vicarious liability to pay compensation for tortuous acts of its employees. Their Lordships have further held that the doctrine of sovereign power not applicable in welfare State where functions of the State now extend to various fields which cannot be strictly related to sovereign power. Their Lordships have held as under:
::: Downloaded on - 15/04/2017 18:09:55 :::HCHP 15"9. Various aspects of the Public Law field were considered. It was found that though initially a petition under Article 226 of the .
Constitution relating to contractual matters was held not to lie, the law underwent a change by subsequent decisions and it was noticed that even though the petition may relate essentially to a contractual matter, it would still be amenable to the writ jurisdiction of the High Court under Article 226. The Public Law remedies have also been extended to the realm of tort. This Court, in its various decisions, has entertained petitions under Article 32 of the Constitution on a number of occasions and has awarded compensation to the petitioners who had suffered personal injuries at the hands of the officers of the Govt. The causing of injuries, which amounted to tortious act, was compensated by this Court in many of its decisions beginning from Rudul Sah v. State of Bihar, (1983) 3 SCR 508 : (1983) 4 SCC 141 :
AIR 1983 SC 1086. [See also Bhim Singh v. State of Jammu and Kashmir, (1985) 4 SCC 577 : AIR 1986 SC 494; People's Union for Democratic Rights v. State of Bihar, (1987) 1 SCR 631 : (1987) 1 SCC 265 : AIR 1987 SC 355; People's Union for Democratic Rights Thru. Its Secy. v. Police Commissioner, Delhi Police Headquarters, (1989) 4 SCC 730 : 1989 (1) SCALE 598; Saheli, A Women's Resources Centre v.
Commissioner of Police, Delhi, (1990) 1 SCC 422 : 1989 Supp (2) SCR 488 : AIR 1990 SC 513; Arvinder Singh Bagga v. State of U. P., (1994) 6 SCC 565 : AIR 1995 SC 117 : (1994 AIR SCW 4148); P. Rathinam v.
Union of India, 1989 Supp (2) SCC 716; In Re: Death of Sawinder Singh Grower, (1995) Supp (4) SCC 450 : (1992) 6 JT (SC) 271 : 1992 (3) SCALE 34 (2); Inder Singh v. State of Punjab, (1995) 3 SCC 702 :
AIR 1995 SC 1949 : (1995 AIR SCW 3037); D. K. Basu v. State of West Bengal, (1997) 1 SCC 416 : AIR 1997 SC 610 : (1997 AIR SCW 233)].
11. Having regard to what has been stated above, the contention that Smt. Hanuffa Khatoon should have approached the Civil Court for damages and the matter should not have been considered in a petition under Article 226 of the Constitution, cannot be accepted. Where public functionaries are involved and the matter ::: Downloaded on - 15/04/2017 18:09:55 :::HCHP 16 relates to the violation of Fundamental Rights or the enforcement of public duties, the remedy would still be available under the Public .
Law notwithstanding that a suit could be filed for damages under Private Law.
12. In the instant case, it is not a mere matter of violation of an ordinary right of a person but the violation of Fundamental Rights which is involved. Smt. Hanuffa Khatoon was a victim of rape. This Court in Bodhisattwa v. Ms. Subhra Chakraborty, (1996) 1 SCC 490 :
(1996 AIR SCW 325 : AIR 1996 SC 922) has held "rape" as an offence which is violative of the Fundamental Right of a person guaranteed under Article 21 of the Constitution. The Court observed as under
(Para 10 of AIR):
"Rape is a crime not only against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis.
Rape is therefore the most hated crime. It is a crime against basic human rights and is violative of the victims most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21."
14. The main contention of the learned counsel for the appellants is that Mrs. Chandrima Das was only a practising advocate of the Calcutta High Court and was, in no way, connected or related to the victim, Smt. Hanuffa Khatoon and, therefore, she could not have filed a petition under Article 226 for damages or compensation being awarded to Smt. Hanuffa Khatoon on account of the rape committed on her. This contention is based on a misconception. Learned counsel for the appellants is under the impression that the petition filed before the Calcutta High Court was only a petition for damages or compensation for Smt. Hanuffa Khatoon. As a matter of fact, the reliefs which were claimed in the petition included the relief for compensation. But many other reliefs as, for example, relief for eradicating anti-social and criminal activities of various kinds at Howrah Railway Station were also claimed. The ::: Downloaded on - 15/04/2017 18:09:55 :::HCHP 17 true nature of the petition, therefore, was that of a petition filed in public interest.
.
15. The existence of a legal right, no doubt, is the foundation for a petition under Article 226 and a bare interest, may be of a minimum nature, may give locus standi to a person to file a Writ Petition, but the concept of "Locus Standi" has undergone a sea change, as we shall presently notice. In Dr. Satyanarayana Sinha v.
S. Lal and Co. Pvt. Ltd., AIR 1973 SC 2720 : (1973) 2 SCC 696, it was held that the foundation for exercising jurisdiction under Article 32 or Article 226 is ordinarily the personal or individual right of the petitioner himself. In writs like Habeas Corpus and Quo Warranto, the rule has been relaxed and modified.
17. In the context of Public Interest Litigation, however, the Court in its various judgments has given widest amplitude and meaning to the concept of locus standi. In People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473 : (1982) 3 SCC 235, it was laid down that Public Interest Litigation could be initiated not only by filing formal petitions in the High Court but even by sending letters and telegrams so as to provide easy access to Court. (See also Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 :
1984 (2) SCR 87 : (1984) 3 SCC 161 and State of Himachal Pradesh v.
Student's Parent Medical College, Shimla, AIR 1985 SC 910 : (1985) 3 SCC 169 on the right to approach the Court in the realm of Public Interest Litigation). In Bangalore Medical Trust v. B. S. Muddappa, AIR 1991 SC 1902 : 1991 (3) SCR 102 : (1991) 4 SCC 54 : (1991 AIR SCW 2082), the Court held that the restricted meaning of aggrieved person and narrow outlook of specific injury has yielded in favour of a broad and wide construction in the wake of Public Interest Litigation. The Court further observed that public-spirited citizens having faith in the rule of law are rendering great social and legal service by espousing causes of public nature. They cannot be ignored or overlooked on technical or conservative yardstick of the rule of locus standi or absence of personal loss or injury. There has, thus, been a spectacular ::: Downloaded on - 15/04/2017 18:09:55 :::HCHP 18 expansion of the concept of locus standi. The concept is much wider and it takes in its stride anyone who is not a mere "busy-body".
.
18. Having regard to the nature of the petition filed by respondent Mrs. Chandrima Das and the relief claimed therein it cannot be doubted that this petition was filed in public interest which could legally be filed by the respondent and the argument that she; could not file that petition as there was nothing personal to her involved in that petition must be rejected."
12. The petitioners have also served legal notice upon the respondents and the reply thereof is Annexure P-28. The averments contained in the reply to the legal notice are contrary to the material placed on record by the petitioners. The respondent No. 6-Corporation, is vicariously liable for the acts of the contractor, who has undertaken the widening of the road and resultantly causing loss to the petitioners' property.
13. The petitioners have constitutional/human right to enjoy and protect their properties. A person cannot be deprived of his property save and except in accordance with law. The property of the petitioners has been damaged by the contractor(s) employed on behalf of respondent No. 6.
The value of the trees was required to be calculated on the basis of the Harbans Singh, after taking into consideration inflationary trends. Thus, the value of 176 trees of apple and 18 chilgoza trees, which are completely damaged and remaining trees which are partially damaged due to debris, would not be less than rupees twelve lacs. Since there are huge boulders lying on the land of the petitioners, the same are required to be removed ::: Downloaded on - 15/04/2017 18:09:55 :::HCHP 19 and it would at least incur expenditure not less than rupees three lacs.
The Court while assessing the damage to completely damaged trees and .
remaining trees which are partially damaged due to debris, has also relied upon Annexures P-15 and P-16.
14. Accordingly, the Writ Petition is allowed. Respondent No. 6 is directed to pay compensation to the petitioners to the tune of Rs.
15,00,000/- (Fifteen lacs), with interest @ 9% per annum, from the date of filing of the petition, within a period of six weeks from today. Pending application(s), if any, shall stand disposed of.
r ( Rajiv Sharma ),
Judge.
May 19, 2015, ( Tarlok Singh Chauhan ),
(karan) Judge.
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