Delhi High Court
Sh. Omkar Nath Bhat vs Union Of India & Ors. on 10 April, 2012
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 10th April, 2012
+ W.P.(C) No.7029/2009
% SH. OMKAR NATH BHAT ....Petitioner
Through: Mr. B.L. Wali, Adv.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Ravinder Agarwal, Adv. for R-1.
Mr. M. Kaushik & Mr. D. Gupta,
Advs. for R-2&3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. The petitioner, claiming to be a permanent resident of Kashmir,
forced to settle down in Delhi, has filed this writ petition seeking a
mandamus to the respondents UOI and State of Jammu & Kashmir to settle
his claim for ex gratia relief in respect of the destruction by burning of his
house at Uttersso, Tehsil Shangas, District Anantnag Kashmir. Notice of
the petition was issued and the pleadings have been completed. The
counsels have been heard.
2. The destruction, by burning, of the house of the petitioner is not in
dispute. However, while the petitioner claims that the house was burnt
down by the terrorists, the respondents attribute the same to a fire caused by
a electrical short circuit. The respondent No.2 State of Jammu & Kashmir
in accordance with the Calamity Relief Fund has already disbursed an
amount of `25,000/- to the petitioner. The petitioner however relies on B.L.
Wali Vs. UOI 115 (2004) DLT 639 and on judgment dated 19.03.2008 in
W.P.(C) No.10653/2006 titled Smt. Durgi Vs. The Resident Commissioner
and claims that he is entitled to compensation in accordance therewith.
Compensation in the said judgments for damage to immovable property
owing to subversive activities was awarded in accordance with the policy
therefor.
3. The question which thus arises for consideration is as to whether the
destruction of the house of the petitioner was owing to the electrical short
circuit or owing to subversive or terrorist act. The respondents plead that
the writ petition is not maintainable for entailing adjudication of disputed
questions of fact.
4. Though the respondents in their counter affidavits have also
controverted the territorial jurisdiction of this Court but in view of the
judgments (supra) as also the judgments in H.L. Warkoo Vs. Kashmir
University 127( 2006) DLT 333 upheld by the Division Bench in judgment
reported in 132 (2006) DLT 606 (DB), relied upon by the counsel for the
petitioners, the said objection is no longer open to the respondents.
5. It is the case of the petitioner, which is not rebutted, and is believable
in the entirety of the facts and circumstances, that he had to abandon his
house aforesaid in the year 1989-90. It is also not in dispute that the said
house of the petitioner between the year 1997-2000 was in occupation of the
Indian Army; thereafter the same was occupied by J&K Police and was
being used as a police post till September, 2005. The house was burnt on
06.11.2005.
6. The petitioner, who had abandoned his house, naturally has no way of
proving the cause of destruction. The respondents on their part have
produced the DD report as per which electrical short circuit was the cause of
the fire.
7. As per the judgment of this Court in B.L. Wali (supra) maximum
compensation of `2,00,000/- is payable for 'loss of house as a result of
violence attributable to breach of law and order or any other form of civil
commotion'. What I have wondered is as to what is the difference in the
two situations. Even if it is to be believed that the damage to the house of
the petitioner was owing to electrical short circuit, such electrical short
circuit could result in the burning down of the entire house owing to the
same being abandoned. Had the house been lived in, the electrical short
circuit, either would not have happened or would have been detected
immediately and it is highly unlikely that it would have resulted in burning
down of the entire house and which as aforesaid is not disputed. That leads
me to the reason for the house lying abandoned. It is sufficiently
established that the house was abandoned as a result of violence attributable
to breach of law and order or any other form of civil commotion. I am
therefore unable to find as to how the petitioner, even if the version of the
respondents was to be believed, can be treated differently and be denied the
compensation in accordance with the policy applied in B.L. Wali and Smt.
Durgi (supra).
8. I am moreover of the view that the burden, in the facts and
circumstances, was on the respondents of proving destruction of house by
electrical short circuit. The respondents have failed to discharge the said
burden. The DD report relied upon is sketchy and bereft of any particulars.
On the contrary, from the admitted use of the house first by the Army and
then by the Police, the likelihood is of the same being the target of the
subversive elements. It has not even been shown that after the police claims
to have left the house, it still had electrical current.
9. The writ petition is accordingly allowed. The petitioner is found
entitled to ex gratia compensation of `2,00,000/- for the loss of his house.
The petitioner having already received `25,000/- is found entitled to the
balance sum of `1,75,000/-. Following the dicta in B.L. Wali and Smt.
Durgi, the petitioner is also found entitled to simple interest at the rate of
7% per annum. A writ of mandamus is issued directing the respondent No.2
State of Jammu & Kashmir to make the payment to the petitioner of
`1,75,000/- together with interest at 7% per annum from 06.11.2005 till the
date of payment within two months of today failing which the Central
Government should make the payment and deduct the amount from the
grants payable to the State of Jammu & Kashmir or from any other
appropriate account. The petitioner is also found entitled to costs quantified
at `10,000/- to be borne by the respondent No.2 State of Jammu & Kashmir.
RAJIV SAHAI ENDLAW, J
APRIL 10, 2012
'gsr'
