Meghalaya High Court
Shri. Creamson War vs . The Union Of India & Ors. on 27 November, 2019
Author: H. S. Thangkhiew
Bench: H. S. Thangkhiew
Serial No. 01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 539 of 2018 Date of Order: 27.11.2019
Shri. Creamson War vs. The Union of India & Ors.
Coram:
Hon'ble Mr. Justice H. S. Thangkhiew, Judge
Appearance:
For the Petitioner(s) : Mr. G.S. Massar, Sr. Adv. With
Ms. L. Phawa, Adv.
For the Respondent(s) : Mr. N.D. Chullai, AAG with
Ms. R. Colney, GA for R 2-4.
Capt. Pradip Kumar, Adv. With Capt. C.R. Deka, Adv. for R 5.
i) Whether approved for reporting in Yes/No
Law journals etc.
ii) Whether approved for publication
in press: Yes/No
1. The case of the petitioner in brief is that the respondent No. 5 in the course of construction of the Umsning by-pass, dumped a huge amount of earth and debris into the land of the petitioner, which resulted in the loss of two perennial water sources apart from making the land unfit for cultivation and has also destroyed the fishery ponds, poultry farm and piggery sheds situated on the land. Further case is that despite repeated complaints before the respondents No. 4 and 5 regarding their grievances, though some steps were taken by the respondent No. 5 to restore the two water sources, the same was wholly inadequate and the petitioner is facing mounting problems and inconvenience because of the dirt and debris that is still present in his land and has suffered great loss in this regard.
12. The petitioner apart from several complaints both verbal and written had addressed a legal notice to the respondents No. 4 and 5 and in the reply dated 24 th July 2018, of the Deputy Commissioner, Ri Bhoi District (Annexure- 13) to the writ petition, it is seen that, the revenue officials from the Deputy Commissioners office along with officials of the respondent No. 5 and the land owner had inspected the site and found that the complaint was genuine.
3. Heard Mr. G.S. Massar, learned Sr. counsel assisted by Ms. L. Phawa, learned counsel for the petitioner. Mr. N.D. Chullai, learned AAG assisted by Ms. R. Colney, learned GA for the respondent No. 2 to 4 and Capt. Pradip Kumar, learned counsel assisted by Capt. C.R. Deka, learned counsel for the respondent No. 5.
4. Mr. G.S. Massar, learned Sr. counsel submits that extensive damage had been caused to the petitioner's land, by the respondent No. 5 authority beyond the portion acquired for construction for the Umsning By-pass highway. He submits for the recklessness and negligence in undertaking the construction wherein severe collateral damage has been caused, the respondents are liable to compensate the petitioner adequately. Learned Sr. counsel has drawn the attention of the Court to the annexed photographs showing the extent of damage caused to the petitioner's land. He further, submits that the respondent No. 4 having already come to a finding that the case of the petitioner is genuine, there is no impediment for this Court to direct the respondent No. 5 to make good the loss suffered by compensating for the same.
5. Capt. Pradip Kumar, learned counsel in his reply submits that the respondent No. 5 has taken adequate safeguards while constructing the by-pass which are sufficient as per site conditions, and the respondent No. 5 has not used the petitioner's un-acquired land for the construction of the highway. He contends that the project highway and road structures have been constructed as per approved land and profile within ROW (Right of Way) of NHAI and all the cross drainage structures, are planned as per the natural flow of the rain water passing through the fields, keeping in view the high flood levels and hydraulic data of the site. He further submits that as per request of the petitioner land owner and the Extra Assistant Commissioner Ri Bhoi District, the respondent No. 5 had constructed two deep tube wells on the land of the petitioner to offset the damage to the two water sources as alleged. He lastly 2 submits that the petitioner has failed to make out any case for adjudication by this Court and no right of the petitioner has been violated to warrant any remedy under Article 226 of the Constitution of India.
6. I have heard learned counsels for the parties.
7. It is seen that the prayer of the petitioner for adequate compensation is squarely based on the negligence of the respondent No. 5 to exercise reasonable care, while constructing the by-pass. Negligence which comes in the realm of Tort Law, is the failure to use reasonable care that an ordinary person would have used in a similar situation resulting in injury or other loss. In its briefest form, the doctrine of negligence holds that if you are to blame, through your carelessness, for an injury to the person or property of another, you will be liable for the damage. 1 One of the requisites of negligence is 'Duty of Care' which means that every person owes a duty of care, to another person while performing an act. Although this duty exists in all acts, but in negligence, the duty is legal in nature and cannot be illegal or unlawful and also cannot be of moral, ethical or religious in nature.
8. Another aspect, that is the doctrine of strict liability, will also be applicable in the present case. In the celebrated case of Rylands vs. Fletcher, the concept of 'No fault liability' or strict liability was enunciated. This is contradictory to the general principle of negligence in Torts where a person can be held liable for commission of a Tort only when the plaintiff can proof negligence on his part and the defendant himself is unable to disapprove it. Onus of being negligent even if ignored, will not absolve a party from being liable for the consequences of damages caused to any person outside the boundary where the construction or any activity is being undertaken. In the instant case, the construction of the by-pass was on the acquired portion of land and even if there was no intention whatsoever to cause any damage to the petitioner's land, the Respondent No. 5 cannot be said to be absolved of the liability by application of the doctrine of strict liability. Further, as noted earlier, the fact that the petitioner has a genuine claim has been found to be true by the respondent No. 4. In the case of Rylands which involved the construction of a reservoir to improve water supply which however, inadvertently inundated the 1 Eric E. Johnson, Cases and Context: Volume One, eLangdell Press, 1st Edition, December, 2015.
3adjoining land, the Court though ruling out negligence on the defendant's part held in that under the rule of strict liability the defendant was liable.
9. In this context, the law as enunciated in Rylands vs. Fletcher, has been interpreted by the Hon'ble Supreme Court which has also introduced the concept of 'absolute liability' which made the rule applicable without any limitation or exception. This rule was evolved in the case of M.C. Mehta vs. Union of India (AIR 1987 SC 1086). However, with regard to 'strict liability' as in the present case various High Courts in the country have dealt with the same which are briefly illustrated herein below:
In the judgment and order dated 18.11.2014 passed in LPA No. 1749 of 2014, in the case of Bimla Devi & Ors. vs. The State of Haryana it was observed by the Punjab and Haryana High Court as follows:
"There is mark distinction between proceedings arising out of 'public law' and proceedings arising out of 'private law'. Infringement of indefeasible rights as guaranteed under Article 21 of the Constitution of India make award of compensation in a remedy available in public law. The deprivation of constitutionally guaranteed right of life and liberty is based on strict liability and such a claim is covered under public law for compensation. This remedy is in addition to the remedy available to the party under private law for damages for tortious acts of the State or its functionaries or public servants."
In the judgment and order dated 11.09.2013 passed in WP(C) 5812 of 2011, in the case of Taskinuddin & Ors. vs. State (NCT of Delhi) & Anr., the Delhi High Court while quoting extensively from various judgments had observed as under:
"43. As far as respondent No. 5's submission that no writ petition for money claim is maintainable is concerned, we are of the view that the same is untenable in law. In our opinion, the Constitution 4 does not place any fetter on the exercise of extra ordinary jurisdiction of the Court and reliefs to be granted under such extra ordinary jurisdiction is left to the discretion of the Court in the light of facts and circumstances of each case. Moreover in the present case what has been sought is award of compensation and not payment of monetary claim.
COMPENSATION CAN BE AWARDED IN
ARTICLE 226 PROCEEDINGS.
44. It is further well settled that proceedings under Article 226 of the Constitution of India, enable the courts, to reach out to injustice, and make appropriate orders, including directions to pay damages or compensation."
The Madras High Court in the case of Lily Stanislaus vs. The Chairman, (2008) 3 MLJ 160 while following the decision of the Hon'ble Supreme Court in M.P Electricity Board vs. Shail Kumari & Ors. AIR 2002 SC 551 held in para 11 as follows:
"11. ................................It was held by the Hon'ble Supreme Court in M.P. Electricity Board vs. Shail Kumari and Ors. that the liability of the Electricity Board under Law of Torts to compensate for the injuries suffered cannot be denied on the basis that the Electricity Board has taken all safety measures since the liability of the Department is strict liability, relying upon the renowned and celebrated case on the issue, viz., Rylands vs. Fletcher 1868 (3) HL 330: 1861-73 All ER Rep. 1. The Supreme Court has held as follows:
8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to 5 human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness an the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions.
If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the actions is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.
9. the doctrine of strict liability has its origin in English common law when it was propounded in the celebrated case of Rylands vs. Fletcher 1868 (3) HL 330: 1861-73 All ER Rep. 1. Blackburn,J., the author of the said rule had observed thus in the said decision: All ER p. 7E-F. The true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, he is 6 prima facie answerable for all the damage which is the natural consequence of its escape."
10. In the present case, the said construction of the by-pass which resulted in huge amount of earth and debris being dumped into the land of the petitioner is alleged to have caused extensive damage to the same. The said fact being supported by photographs filed before this Court and also the findings as conveyed by letter dated 24th July 2018 of the respondent No. 4, the liability to compensate or make good the damage if attributable to the negligence of the respondent No. 5, cannot be escaped. However, it would be in the fitness of things to have a proper assessment of the damage as alleged before final orders are passed in this matter.
11. Accordingly, it is directed that a special committee to be chaired by the Deputy Commissioner of Ri Bhoi District be constituted to assess and to ascertain the damage caused if any and if found to be so, to quantify the same, for payment of compensation. The said committee so constituted apart from representation from the petitioner and the Respondent No.5 shall consist of the following:
(i) Chairperson: Deputy Commisisioner, Ri Bhoi District.
Members -
(ii) District Agricultural Officer, Ri Bhoi District, Nongpoh.
(iii) Executive Engineer Water Resource Dept., Ri Bhoi District, Nongpoh.
(iv) Executive Engineer PWD (Roads) Nongpoh Division, Nongpoh.
(v) Superintendent of Fisheries, Ri Bhoi District, Nongpoh.
12. The Committee shall cause inspection of the land of the petitioner to ascertain the damage and extent thereof in the presence of the Representatives of the petitioner and of the respondent No. 5 and if damage as claimed has been seen to be caused by the spill over and dumping of soil and debris and manner of construction of drainage, culverts in the construction of the Umsning by-pass by the respondent No. 5, the same shall be quantified in monetary terms as per approved schedule of rates of the Govt. of Meghalaya and the report be submitted before this Court by 4th February 2020.
713. Copy of this order be supplied to Mr. N.D. Chullai, learned AAG for communication to the respondent No. 4 for compliance and necessary action.
14. Matter be listed on 05.02.2020 as a fixed item.
Judge Meghalaya 27.11.2019 "D.Thabah-PS"
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