Himachal Pradesh High Court
Jai Dutt Sharma & Ors vs State Of H. P. & Ors on 24 March, 2023
Bench: Tarlok Singh Chauhan, Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 1105 of 2022 a/w .
CWP No. 3984 of 2022
Reserved on: 15.03.2022
Decided on: 24.03.2023
CWP No. 1105 of 2022
Jai Dutt Sharma & Ors. ...Petitioners
Versus
State of H. P. & Ors. ...Respondents
CWP No. 3984 of 2022
M/s Greenko Hatkoti Energy Pvt. Ltd. ...Petitioner
r Versus
State of H. P. & Ors. ...Respondents
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting? 1 Yes.
For the Petitioners : Mr. V. D. Khidtta, Advocate, for the petitioners in CWP No. 1105 of 2022.
Mr. Vikrant Thakur, Advocate, for the petitioner in CWP No. 3984 of 2022.
For the Respondents : Mr. Anup Rattan, A.G. with Mr. I. N. Mehta, Mr. Y. W. Chauhan, Sr. Addl. A.G., Mr. J. S. Guleria, Dy. A.G. and Mr. Rajat Chauhan, Law Officer, for respondents- State in both the petitions.
Mr. Vikrant Thakur, Advocate, for respondent No. 3 and 4 in CWP No. 1105 of 2022.
Tarlok Singh Chauhan, Judge 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 2 Since common questions of law and facts are involved in both these petitions, therefore, the same were taken .
up together for hearing and are being disposed of by a common judgment. However, in order to maintain clarity, the facts of CWP No. 1105 of 2022 are being referred to.
2. The petitioners in CWP No. 1105 of 2022 are the permanent residents of Gwali Dogri (Parsa) P.O. Lower Koti, Tehsil Rohru, District Shimla, H.P. and are aggrieved by the non-
implementation of the order of the Deputy Commissioner, have filed the instant petition for grant of the following substantive reliefs:-
(I) That writ in the nature of mandamus may kindly be issued directing the respondents to implement the order dated 13.01.2020 (Annexure P-22) in its letter and spirit by directing the respondents No. 1 and 2 to immediately release the calculated compensation amount and further ordered to be recovered by them from respondent No. 3 and 4 with interest throughout.
(ii) That the writ in the nature of mandamus may kindly be issued directing the respondents to re-assess and re-
calculate the compensation / damage amount at least to the tune of Rs. 1 crore as the house, land and orchard including water sources of 17 families have been damaged as is clear from the order passed by respondent No. 2 on 13.01.2020.
(iii) That the respondents No. 3 and 4 may kindly be directed to provide the employment to the members of the petitioners/project affected families as and when work in future is started as the same has been accepted by the ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 3 representatives of the project authority in the meetings as ordered by the Deputy Commissioner in its order dated .
10.01.2020.
3. On 06.06.2002, respondent No. 1- the Government of Himachal Pradesh executed an agreement (MoU) with M/s Jayalakshmi Power Corporation Ltd. to carry out a detailed investigations and submit Detailed Project Report for implementation of Paurital-Lassa Hydro Electric Project 36 MW installed capacity located in Tehsil Rohru, District Shimla.
4. Subsequently, on 26.10.2006, respondent No. 1- Government of Himachal Pradesh had arrived at and executed Implementation Agreement with M/s Jayalakshmi Power Corporation Ltd., wherein a specific term regarding Rehabilitation and Resettlement Plan was set up.
5. On 09.04.2009, a tripartite agreement was executed between respondent No. 1 - Government of Himachal Pradesh, M/s Jayalakshmi Power Corporation Ltd. and M/s Greenko Hatkoti Energy Pvt. Ltd., whereby all the rights or obligations of M/s Jayalakshmi Power Corporation were transferred to Greenko Hatkoti Energy Pvt. Ltd.
6. According to the petitioners, it was on account of the unscientific methods used by the respondents for construction of tunnel for the execution of the project that the houses and other ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 4 properties of the petitioners came to be damaged. The petitioners continued to represent the authorities but to no avail.
.
7. Ultimately, the petitioners submitted a representation to the Deputy Commissioner, Shimla, who in turn, gave directions to the Project Authorities (respondents No. 3 and
4) to pay a compensation of Rs. 11 lacs to the petitioners and also construct a water storage tank at the cost of Rs. 8 lacs within a period of six months from 13.01.2020.
8. Respondent No. 2 has contested the petition by filing reply, wherein, it has been submitted that a Committee headed by Sub Divisional Officer (C), Rohru, had visited the site and assessed the damage caused to the houses of 17 inhabitants and submitted a detailed report to the replying respondents and after perusing the same, the Deputy Commissioner has passed order on 13.01.2020.
9. As regards respondent No. 3, it would contend that since the petition raises highly disputed questions of law and fact, the same is not maintainable.
We have heard learned counsel for the parties and have gone through the record of the case.
10. At the outset, it may be observed that respondent No. 3 had not denied its liability to pay damages, if any, to the properties of the villagers under various agreements. The sole ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 5 contention is that not only the petition raises highly disputed questions of law and fact but even the compensation so .
assessed by the Committee, constituted by the Deputy Commissioner, has given no basis for assessment of the compensation.
11. Before adverting to these contentions, the legal position may be referred to the judgment of a Division Bench of this Court in a batch of petitions lead case whereof CWP No. 2983 of 2015, titled as Krishan vs. Union of India & Ors., decided on 26.07.2016, authored by one of us (Justice Tarlok Singh Chauhan, J.) regarding identical controversy, whereby the writ petition was dismissed on the ground of highly serious disputed question of law and fact raised therein by observing as under:-
7. The moot question that arises for consideration in wake of replies filed by the respondents is as to whether the reliefs as claimed by the petitioners can in fact be granted in these writ petitions, in view of the seriously disputed question fact which otherwise can only be proved by leading evidence.
8. The Court herein is not dealing with simple case where the dispute between the parties can be decided on the basis of affidavits and counter affidavits, as the Court would be required to determine as to whether the properties of the petitioners have in fact been damaged and only after determining the same, the individual claims with respect to the compensation, if any, can be determined. However, these questions can only be ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 6 determined after the parties are given an opportunity to lead evidence, which includes cross-examining the .
witnesses.
9. Though, the learned counsel for the petitioners had cited number of judgments to canvass that not only can the writ Court go into the disputed facts, but it can also award compensation. However, we find that majority of judgments as relied upon by the petitioners have already been considered by the Hon'ble Supreme Court in its decision in State of Kerala and others Vs. M.K. Jose (2015) 9 SCC 433, relevant paragraphs whereof read as under:-
r "14. In State of Bihar v. Jain Plastics and Chemicals Ltd., (2002) 1 SCC 216 a two-Judge Bench reiterating the exercise of power under Article 226 of the Constitution in respect of enforcement of contractual obligations has stated: (SCC p. 217, para 3) "3.....It is to be reiterated that writ petition under Article 226 is not the proper proceedings for adjudicating such disputes. Under the law, it was open to the respondent to approach the court of competent jurisdiction for appropriate relief for breach of contract. It is settled law that when an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. Equally, the existence of alternative remedy does not affect the jurisdiction of the court to issue writ, but ordinarily that would be a good ground in refusing to exercise the discretion under Article 226."::: Downloaded on - 25/03/2023 20:33:10 :::CIS 7
In the said case, it has been further observed: (SCC p. 218, para 7) .
"7....It is true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be a ground for exercise of extraordinary jurisdiction under Article 226 of the Constitution in case of alleged breach of contract. Whether the alleged non-supply of road permits by the appellants would justify breach of contract by the respondent would depend upon facts and evidence and is not required to be decided or dealt with in a writ petition. rSuch seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in a properly instituted civil suit rather than by a court exercising prerogative of issuing writs.
" 15. In National Highways Authority of India v. Ganga Enterprises, (2003) 7 SCC 410 the respondent therein had filed a writ petition before the High Court for refund of the amount. The High Court posed two questions, namely, (a) whether the forfeiture of security deposit is without authority of law and without any binding contract between the parties and also contrary to Section 5 of the Contract Act; and (b) whether the writ petition is maintainable in a claim arising out of breach of contract. While dealing with the said issue, this Court opined that: (SCC p. 415, para 6) "6...It is settled law that disputes relating to contracts cannot be agitated under Article 226 of the ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 8 Constitution of India. It has been so held in the cases of Kerala SEB v. Kurien E. Kalathil, (2000) 6 SCC 293, .
State of U.P. v. Bridge & Roof Co. (India) Ltd. (1996)6 SCC 22 and Bareilly Development Authority v. Ajai Pal Singh(1989) 2 SCC 116. This is settled law. The dispute in this case was regarding the terms of offer.
They were thus contractual disputes in respect of which a writ court was not the proper forum. Mr Dave, however, relied upon the cases of Verigamto Naveen v. Govt. of A.P. (2001) 8 SCC 344 and Harminder Singh Arora v. Union of India (1986) 3 SCC
247. These, however, are cases where the writ court was enforcing a statutory right or duty. These cases do not lay down that a writ court can interfere in a matter of contract only. Thus on the ground of maintainability the petition should have been dismissed."
16. Having referred to the aforesaid decisions, it is obligatory on our part to refer to two other authorities of this Court where it has been opined that under what circumstances a disputed question of fact can be gone into. In Gunwant Kaur v. Municipal Committee, Bhatinda (1969) 3 SCC 769, it has been held thus: (SCC p. 774, paras 14-16) "14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit- in-reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 9 because in considering the petitioner's right to relief questions of fact may fall to be determined. In a .
petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.
15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector. 16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 10 is a case in which in the interests of both the parties the High Court should have entertained the petition .
and called for an affidavit-in- reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit. (emphasis supplied)
17. In ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd. (2004) 3 SCC 553, a two-Judge Bench after referring to various judgments as well as the pronouncement in Gunwant Kaur (supra) and Century Spg. And Mfg. Co. Ltd. v. Ulhasnagar Municipal Council (1970) 1 SCC 582, has held thus: (ABL International case, SCC pp. 568-69 & 572, paras 19 & 29) "19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact.
*** ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 11
27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a .
writ petition:
(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.
(b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.
(c) A writ petition involving a consequential relief of monetary claim is also maintainable. While laying down the principle, the Court sounded a word of caution as under: (ABL International case, SCC p.
572, para 28) "28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks (1998) 8 SCC 1.) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 12 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said .
jurisdiction."
18. It is appropriate to state here that in the said case, the Court granted the relief as the facts were absolutely clear from the documentary evidence brought which pertain to interpretation of certain clauses of contract of insurance. In that context, the Court opined: (ABL International Ltd. case SCC p.
578, para 51) "51 .... The terms of the insurance contract which were agreed between the parties were after the terms of the contract between the exporter and the importer were executed which included the addendum, therefore, without hesitation we must proceed on the basis that the first respondent issued the insurance policy knowing very well that there was more than one mode of payment of consideration and it had insured failure of all the modes of payment of consideration. From the correspondence as well as from the terms of the policy, it is noticed that existence of only two conditions has been made as a condition precedent for making the first respondent Corporation liable to pay for the insured risk, that is:
(i) there should be a default on the part of the Kazak Corporation to pay for the goods received; and (ii) there should be a failure on the part of the Kazakhstan Government to fulfil their guarantee."
And it eventually held: (SCC pp. 578-79, para 51) "51..... We have come to the conclusion that the amended clause 6 of the agreement between the ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 13 exporter and the importer on the face of it does not give room for a second or another construction than .
the one already accepted by us. We have also noted that reliance placed on subclause (d) of the proviso to the insurance contract by the Appellate Bench is also misplaced which is clear from the language of the said clause itself. Therefore, in our opinion, it does not require any external aid, much less any oral evidence to interpret the above clause. Merely because the first respondent wants to dispute this fact, in our opinion, it does not become a disputed fact. If such objection as to disputed questions or interpretations is raised in a writ petition, in our opinion, the courts can very well go into the same and decide that objection if facts permit the same as in this case.
19. In this regard, a reference to Noble Resources Ltd. v. State of Orissa and Another (2006) 10 SCC 236 would be seemly. The two-Judge Bench referred to the ABL International, Dwarkadas Marfatia & Sons v. Board of Trustees, Port of Bombay, (1989) 3 SCC 293, Mahabir Auto Stores v. Indian Oil Corp. (1990) 3 SCC 752 and Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214 and opined thus: (Nobal Resources case SCC p. 246, para
29) "29. Although the scope of judicial review or the development of law in this field has been noticed hereinbefore particularly in the light of the decision of this Court in ABL International Ltd. each case, however, must be decided on its own facts. Public interest as noticed hereinbefore, may be one of the ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 14 factors to exercise the power of judicial review. In a case where a public law element is involved, judicial .
review may be permissible. (See Binny Ltd. v. V. Sadasivan (2005) 6 SCC 657 and G.B. Mahajan v. Jalgaon Municipal Council, (1991) 3 SCC 91) Thereafter, the court in Noble Resources case, proceeded to analyse the facts and came to hold that certain serious disputed questions of facts have arisen for determination and such disputes ordinarily could not have been entertained by the High Court in exercise of its power of judicial review and ultimately the appeal was dismissed."
10. It would be noticed that the Hon'ble Supreme Court after taking into consideration the whole gamut of law, has thereafter made the following pertinent observations:-
"20. We have referred to the aforesaid authorities to highlight under what circumstances in respect of contractual claim or challenge to violation of contract can be entertained by a writ court. It depends upon facts of each case. The issue that had arisen in ABL International was that an instrumentality of a State was placing a different construction on the clauses of the contract of insurance and the insured was interpreting the contract differently. The Court thought it apt merely because something is disputed by the insurer, it should not enter into the realm of disputed questions of fact. In fact, there was no disputed question of fact, but it required interpretation of the terms of the contract of insurance. Similarly, if the materials that come on record from which it is clearly evincible, the writ court may exercise the power of judicial review but, a ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 15 pregnant one, in the case at hand, the High Court has appointed a Commission to collect the evidence, .
accepted the same without calling for objections from the respondent and quashed the order of termination of contract.
21. The procedure adopted by the High Court, if we permit ourselves to say so, is quite unknown to exercise of powers under Article 226 in a contractual matter. We can well appreciate a Committee being appointed in a Public Interest Litigation to assist the Court or to find out certain facts. Such an exercise is meant for public good and in public interest. For example, when an issue arises whether in a particular State there are toilets for school children and there is an assertion by the State that there are good toilets, definitely the Court can appoint a Committee to verify the same. It is because the lis is not adversarial in nature. The same principle cannot be taken recourse to in respect of a contractual controversy. It is also surprising that the High Court has been entertaining series of writ petitions at the instance of the respondent, which is nothing but abuse of the process of extraordinary jurisdiction of the High Court. The Appellate Bench should have applied more restraint and proceeded in accordance with law instead of making a roving enquiry. Such a step is impermissible and by no stretch of imagination subserves any public interest."
11. It would be evidently clear from the aforesaid exposition of law that the writ Court may in appropriate case award compensation where the facts are not in dispute; there is established negligence in the acts and ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 16 omissions of the respondent authority/authorities on the face of record and there is a consistent deprivation of a .
fundamental right of the petitioner or his legal representative. That apart, the Court cannot appoint an expert committee to assess the damage if any caused to the properties of the petitioners as such course would be totally impermissible as the Court cannot be used to collect evidence in favour of the petitioners.
12. It would be noticed that the respondents have disputed all the allegations as set out by the petitioners and therefore, in such circumstances, it is not safe or even prudent for this Court to rely upon any of the material placed on record, that too without affording either of the parties a chance of cross-examination.
13. Even otherwise, it is more than settled that the High Court in exercise of its writ jurisdiction under Article 226 should not interfere with the matters, which are in the realm of private laws and it can otherwise be taken to be well settled that where there is disputed question of fact, which require evidence before the same can be established, then as a matter of practice, the Court would not entertain such writ petition.
14. It is equally settled law that when an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. Equally, the existence of alternative remedy does not affect the jurisdiction of the Court to issue writ, but ordinarily that would be a good ground for refusing to exercise the discretion under Article 226.
::: Downloaded on - 25/03/2023 20:33:10 :::CIS 1715. These petitions involve seriously disputed questions of fact and even otherwise the rival claims of the parties are .
such, which can only be investigated and determined on the basis of evidence, which may be led by the parties in a properly instituted civil suit rather than by a court exercising prerogative of issuing writs.
12. The Hon'ble Supreme Court in Punjab National Bank & Ors. vs. Atmanand Singh & Ors. (2020) 6 SCC 256, wherein after evaluating the majority of the aforesaid judgments, the legal position was stated thus:-
22. We restate the above position that when the petition raises questions of fact of complex nature, such as in the present case, which may for their determination require oral and documentary evidence to be produced and proved by the concerned party and also because the relief sought is merely for ordering a refund of money, the High Court should be loath in entertaining such writ petition and instead must relegate the parties to remedy of a civil suit. Had it been a case where material facts referred to in the writ petition are admitted facts or indisputable facts, the High Court may be justified in examining the claim of the writ petitioner on its own merits in accordance with law.
13. Adverting to the facts, it would be necessary to reproduce the Assessment Report of the partially damaged houses of village Lahsa Poditall, in its entirety, which reads as under:-
ASSESSMENT REPORT OF THE PARTIALLY DAMAGED HOUSES OF VILLAGE LAHSA PODITALL ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 18 In compliance to the direction passed by the worthy Deputy Commissioner, Shimla dated 11-12-2019, the committee visited the site on dated 02.01.2020. Despite advance intimation to the .
representative of the Project Management, none were present on the spot. Each house was inspected in presence of the applicant/owner and the assessment of the damage was done with the held of technical officials present with the Committee. The committee is of the opinion that the affected families of the village should be provided compensation as per the detail of assessment given below:-
Sr. Name of the Applicant Brief observation regarding damage to Assessment of no. the house the damage 1 Sh. Naresh Dutt Cracks on wall flooring and slab and 50,000/-
damages stone masonry wall etc. 2 Sh. Hari Nand Sharma Cracks in walls of store and cracks in 50,000/-
main building walls mainly in the joint between beam and wall 3 Sh. Baldev Sharma Small cracks in wall in CC flooring and 70,000/-
r retaining wall damaged got slide
4 Sh. Basu Dev Sharma Cracks in wall of building and also in 75,000/-
flooring
5 Sh. Gopal Singh Cracks in wall of building and also in 50,000/-
flooring
6 Sh. Brijesh Sharma 1. Small cracks in walls of two no. 1,30,000/-
Building and in CC flooring of veranda
2. Very old House three No. stories made of unframed structure in stone and wooden with slate roofing structure have got dilapidated three rooms in total which is unsafe for living.
7 Sh. Shishu Pal Sharma Small cracks in walls and veranda and 70,000/-
also in toilet and cow shed.
8 Sh. Narayan Dutt Sharma Small cracks in walls of building and 50,000/-
also in cowshed etc. 9 Sh. sunil Thakur Cracks in stone masonry wall of two 75,000/-
floors building and also the flooring etc. 10 Sh. Jai Dutt Sharma Cracks in walls and small cracks in slab 80,000/-
and veranda settled down in causing cracks etc. 11 Sh. Hukam Chand Damage in wall of two floors building 70,000/-
and also in toilet dry masonry wall damage two floor.
12 Sh. Brij Mohan Cracks in two floors and veranda, walls 65,000/-
Thakur got damaged due to settlement of land and small cracks in toilet walls etc. 13 Sh. Surinder Thakur Cracks in walls and flooring of veranda 50,000/-
damage due to settlement of land.
::: Downloaded on - 25/03/2023 20:33:10 :::CIS 1914 Sh. Surinder Sharma Retaining wall C/o stone masonry got 65,000/-
tilted and cracks two no. floor & walls of building and stair CC railing got .
broken etc. 15 Sh. Vipan Sharma Retaining wall of on back side got tilted 65,000/-
and cracks in building walls and RCC slab got damaged due to settlement of land causing undulation in slab.
16 Sh. Kamal Chand Small cracks in walls of building and 65,000/-
veranda got settled and also cracks in cowshed and toilet block.
17 Sh. Tara Dutt Sharma Two o. Building structure one has small 80,000/-
cracks in walls and in second one cracks in veranda and also in walls of building and damage in RCC slab due to setting of land.
14. It would be noticed that neither the petitioners nor respondents No. 1 and 2 i.e. Principal Secretary (Department of Multipurpose Projects and Power), to the Government of Himachal Pradesh and the Deputy Commissioner, Shimla, have placed on record the basis on which the damage has been assessed. That apart, this report has not been accepted by the petitioners.
15. Lastly and more importantly, we are of the considered view that the petition raises question of complex nature, which can be determined only on the basis of oral and documentary evidence to be produced and proved by a party concerned and in such scenario, we are loath in entertaining such writ petition and would direct the parties to relegate to the remedy of a civil suit.
::: Downloaded on - 25/03/2023 20:33:10 :::CIS 2016. Had it been a case where the material facts referred to in the writ petitions are admitted on disputed facts, the Court .
would have probably examined the claim of the writ petitioners on merits, but since such claim is neither admitted nor disputed, moreover, there are no basis of computation of such claim, we see no reason to entertain these petitions.
17. Above all, in absence of any material on the basis of which the assessment of damages has been made by the Committee constituted by the Deputy Commissioner, it would be not only unfair but even unreasonable to direct the respondents for that matter even by the petitioners to pay the compensation or to assess the damages as set out in the assessment report.
May be the petitioners would be in a position to lead evidence to show that they are entitled to compensation far beyond the one computed in the assessment report. On the other hand, the respondents could also lead evidence to show that the assessment of damage is highly exaggerated.
18. Here we make a note of a judgment of the Coordinate Bench in CWP No. 1176 of 2018, titled as Nand Lal vs. State of H.P. & Ors., wherein while dealing with an identical issue regarding grant of compensation of the structures/houses to the petitioners in accordance with the Land Acquisition Act, ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 21 the Court decline to entertain such writ petition because of the complex question of fact, by observing as under:-
.
8. A perusal of Rehabilitation and Resettlement Scheme indicates that it was prepared to protect the interest of the Oustees and to make adequate arrangements for their rehabilitation and resettlement. The case of the petitioners is however very peculiar. Neither their land nor their houses have been acquired. What they allege that since their village is situated adjacent to the bank of river Satluj, the soil strata of the land there is a mix of sand and clay. The Kol Dam is a big water body, which is having length of more than 30 kilometers, causes seepage deep into the adjoining land and thereby putting imminent danger to the residential houses, human life and livestock.
It is asserted and not denied that certain cracks were witnessed in the houses of the petitioners. The Geological Survey Committee has assessed the damage to the houses of the petitioners and they were paid adequate compensation by the respondent-NTPC.
9. The question however is whether it would be justified for this Court to entertain the dispute of present nature in the scope of its jurisdiction under Article 226 of the Constitution of India. What is required to be decided in the present matter is that if the land and houses of the petitioners have not actually been acquired, can be any justification for this Court to direct the respondents to pass award under the Land Acquisition Act, 1894, which is now replaced by Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. In our view, it is not as this Act would not apply to the present fact situation. Once the aforementioned Act is not attracted, the rehabilitation and ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 22 resettlement of the petitioners under aforementioned Act is not applicable to them. Besides, the petitioners have .
also to prove that on account of regular seepage into their land, it has become unusable, partly or completely and if partly, to what extent and if completely, then how? What would also be required to be decided is whether the damage caused to the houses of the petitioner is permanent and perpetual in nature. All these issues would be required to be decided in order to determine as to what extent the loss is caused to the petitioners and on that basis, then to quantify the amount of compensation. These all are the questions which can be decided only if the parties lead evidence in support of their respective cases. The petitioners for this purpose would be required to adduce evidence by producing witnesses and opinion of the experts for assessment of the damage to their land and property. This Court in exercise of power under Article 226 of the Constitution of India would not be in a position to entertain all these complex issues involving questions of fact. Only the Civil Court having competent jurisdiction, would be more appropriate remedy for the petitioners to claim compensation or damages, if so advised, by filing a civil suit for such relief.
10. It is trite that when a matter involves disputed questions of facts and law, the High Court would be slow in entertaining the petition under Article 226 of the Constitution of India. The exercise of writ jurisdiction by the High Court is a plenary power which is to be used in exceptional circumstances. The petitioners have not been able to make out any such case, which can be entertained under Article 226 of the Constitution of India. The High Court would not be justified in exercising such a power to the exclusion of other available remedies only when it ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 23 finds that action of the State or its instrumentality is arbitrary and unreasonable and as such is violative of .
Article 14 of the Constitution of India. The Supreme Court in a recent judgment in Punjab National Bank and others Versus Atmanand Singh and others, (2020) 6 Supreme Court Cases 256, held that where the petition raises questions of fact of complex nature, which may for their determination require oral and documentary evidence to be produced and proved by the party concerned, the High Court should be loath in entertaining such writ petition and instead must relegate the parties to the remedy of a civil suit.
11. The Supreme Court in Thansingh Nathmal Vs. Sudt. of Taxes, AIR 1964 SC 1419, held that exercise of jurisdiction by the High Court under Article 226 of the Constitution of India being couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions, but it is not exercised merely because it is lawful to do so. It was held that very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations.
The following observations of the Supreme Court in para-7 of the report are useful to quote:-
"7... The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject certain self-imposed limitations. Resort to that jurisdiction is not intended as an ::: Downloaded on - 25/03/2023 20:33:10 :::CIS 24 alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute.
.
Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy.
Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."
12. In Gunwant Kaur Versus Municipal Committee, Bhatinda (1969) 3 SCC 769, which was followed in Babubhai Muljibhai Patel Vs. Nandlal Khodidas Barot, (1974) 2 SCC 706, the Supreme Court held that when a writ petition raises disputed questions of fact of complex nature, which may for their determination require oral and documentary evidence, the High Court may decline to entertain such petition. The following observations of the Supreme Court in para-14 of the report, are relevant to quote:-
::: Downloaded on - 25/03/2023 20:33:10 :::CIS 25"14. The High Court observed that they will not determine disputed question of fact in a writ petition.
.
But what facts were in dispute and what were admitted could only be determined after an affidavit in reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. r Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account theHigh Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is analogous reasons."
13. In view of the aforesaid discussion, we are not inclined to entertain these writ petitions, however, with liberty to the petitioners to avail the remedy of claiming compensation/damages before the appropriate Civil Court.
::: Downloaded on - 25/03/2023 20:33:10 :::CIS 2619. Adverting to the writ petition No. 3894 of 2022, it would be noticed that the same has been filed for the grant of .
following substantive reliefs:
I) Issue writ of certiorari to quash the impugned order dated 13.01.2022 (Annexure P-2) passed by Ld. Deputy Commissioner.
ii) The Deputy Commissioner, Shimla may kindly be directed to utilize the amount deposited under LADF by the petitioner for the development works in the Project Affected Area (PAA).
20. Now that we have held the compensation, as determined by the Deputy Commissioner to be not payable to the petitioners, therefore, the writ petition (CWP No. 1105 of 2022) filed by the individual(s)/land owners is not maintainable and as regards the writ petition (CWP No. 3984 of 2022) filed by M/s Greenko, the same has been rendered infructuous as the proper remedy of claiming compensation/damages lies with the petitioners before the civil court for redressal of their respective grievances. However, we make it clear that in the event of the petitioners approaching the civil Court within a period of thirty days from the receipt of this judgment, not only shall the petitioners be entitled to benefit of Section 80(2) of the Code of Civil Procedure, but even the period of limitation spent in pursuing these litigations shall be excluded.
::: Downloaded on - 25/03/2023 20:33:10 :::CIS 2721. Before parting, we may observe that nothing observed herein above shall be construed to be an opinion on .
merits of the case and in the event of the petitioners filing civil suit(s), the Court shall proceed to determine the case on merits without being persuaded or influenced by any of the observations made herein above, which essentially have been made only for the determination and disposal of these writ petitions.
22. The petitions stand disposed of in the aforesaid terms, so also pending applications, if any.
(Tarlok Singh Chauhan)
Judge
(Virender Singh)
24th March, 2023 Judge
(sanjeev)
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