Himachal Pradesh High Court
Nand Lal vs Unknown on 25 October, 2021
Bench: Mohammad Rafiq, Sabina
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 25th DAY OF OCTOBER, 2021
BEFORE
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ,
CHIEF JUSTICE
&
HON'BLE MS. JUSTICE SABINA
CIVIL WRIT PETITION Nos.1176 & 1969 of 2018
(1) CWP No.1176 of 2018
Between:-
1. NAND LAL,
S/O LATE SH. SANT RAM,
2. CHAMAN LAL,
S/O LATE SH. SANT RAM,
3. KAMLA DEVI,
WD/O LATE SH. SANT RAM.
ALL RESIDENTS OF VILLAGE THALI,
POST OFFICE SUNNI, TEHSIL KARSOG,
DISTRICT MANDI, H.P.
......PETITIONERS
(BY SH. SANDEEP SHARMA,
ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS CHIEF SECRETARY
(REVENUE) TO THE GOVT. OF
HIMACHAL PRADESH,
SHIMLA-171002.
2. DEPUTY COMMISSIONER,
MANDI, DISTRICT MANDI,
HIMAHCAL PRADESH.
3. DEPUTY COMMISSIONER,
SHIMLA, DISTRICT SHIMLA, H.P.
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-2-
4. SUB-DIVISIONAL OFFICER (CIVIL),
KARSOG, DISTRICT MANDI, H.P.
.
5. LAND ACQUISITION OFFICER
(L.A.O.) KOLDAM, BILASPUR,
DISTRICT BILASPUR, H.P.
6. NATIONAL THERMAL POWER
CORPORATION LIMITED (NTPC)
KOLDAM THROUGH ITS GENERAL
MANAGER, BARMANA,
DISTRICT BILASPUR, H.P.
......RESPONDENTS
(SH. ASHOK SHARMA,
ADVOCATE GENERAL WITH
MS. RITTA GOSWAMI,
ADDITIONAL ADVOCATE GENERAL
AND MS. SEEMA SHARMA &
SH. R.P. SINGH, DEPUTY ADVOCATES
GENERAL, FOR R-1 TO 5,
SH. JAGDISH THAKUR, ADVOCATE, FOR R-6)
(2) CWP No.1969 of 2018
Between:-
BABITA DEVI,
D/O SH. GARIB DASS,
R/O WARD NO.6, NEAR MELA
GROUND SUNNI, TEHSIL SUNNI,
DISTRICT SHIMLA, H.P.
......PETITIONER
(BY SH. SANDEEP SHARMA,
ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS CHIEF SECRETARY
(REVENUE) TO THE GOVT. OF
HIMACHAL PRADESH,
SHIMLA-171002.
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2. DEPUTY COMMISSIONER,
SHIMLA, DISTRICT SHIMLA, H.P.
3. SUB-DIVISIONAL OFFICER (CIVIL),
.
SHIMLA (RURAL), DISTRICT SHIMLA, H.P.
4. LAND ACQUISITION OFFICER
(L.A.O.) KOLDAM, BILASPUR,
DISTRICT BILASPUR, H.P.
5. NATIONAL THERMAL POWER
CORPORATION LIMITED (NTPC)
KOLDAM THROUGH ITS GENERAL
MANAGER, BARMANA,
DISTRICT BILASPUR, H.P.
......RESPONDENTS
(SH. ASHOK SHARMA,
ADVOCATE GENERAL WITH
MS. RITTA GOSWAMI,
ADDITIONAL ADVOCATE GENERAL
AND MS. SEEMA SHARMA &
SH. R.P. SINGH, DEPUTY ADVOCATES
GENERAL, FOR R-1 TO 5,
SH. JAGDISH THAKUR, ADVOCATE, FOR R-5)
These petitions coming on for admission this day, Hon'ble
Mr. Justice Mohammad Rafiq, passed the following:
ORDER
These writ petitions have been filed by Nand Lal,
Chaman Lal & Kamla Devi, petitioners in CWP No.1176 of 2018 and
Babita Devi, petitioner in CWP No.1969 of 2018, praying that the
respondents may be directed to grant compensation of the structure/
house(s) of the petitioners as per the valuation report prepared by
the Civil Engineer, Sunni, vide Annexure P-6, and alternatively
prayed for a direction to the respondents to pass an award as per
the Land Acquisition Act, with a further prayer that the respondents
be directed to implement the Rehabilitation and Resettlement
.
Scheme (Annexure P-5), hereinafter referred to as the 'Scheme'. It
is further prayed that respondents be also directed to release the
monitory benefits to the petitioners to the tune of Rs.60,000/- in the
form of houseless grant and Rs.50,000/- as landless grant and to
provide independent house/plot with built up 50' x 40' provided in
2.
para 2.1.1. of the Scheme vide Annexure P-5.
Learned counsel for the petitioners has argued that
respondent-NTPC had acquired the land adjoining the house of the
petitioner in the year 2000 for construction of reservoir named as Kol
Dam, which was completed about four years back in the year 2014.
After the reservoir was filled to its capacity of 46 meters from the sea
level, its water started seeping deep into the soil strata and the
petitioners were facing imminent danger to their residential houses
as well as to the lives of their family members. Even though the
respondents have assessed/evaluated the structure of the house as
per law/market value but they have not granted any benefit to the
petitioners under the Scheme. The residential houses of the
petitioners (in CWP No.1176 of 2018) are situated in Khasra
No.1411/100 at village Thali, Post Office Sunni, Tehsil Karsog,
District Mandi and (in CWP No.1969 of 2018) in Khasra
No.1210/553 at Ward No.6, Near Mela Ground Sunni, Tehsil Sunni,
.
District Shimla. Both these places are situated adjacent to river
Satluj, therefore, its soil strata is a mix of sand and clay. The Koldam
is a big water body, which is more than 30 Kilometers approximately
in length along the bank of river Satluj. It has got immense water
pressure, which has caused seepage deep into the adjoining land,
2015 when
r to
thereby putting imminent danger to the residential house, human live
and to livestock. The petitioners felt its adverse impact in the year
ground floor of their houses started showing small
cracks which kept on widening with each passing year. The land,
upon which the houses are constructed, also started showing signs
of sinking and sliding.
3. Learned counsel submitted that under the directions of
this Court, a Geological Survey Committee was constituted to
assess the possible threats to existing properties/houses of project
affected areas of Koldam in respect of Sub-Division Karsog and
prepared the estimate amounting to Rs.5,64,081/- of valuation of the
house of the petitioners (in CWP No.1176 of 2018) and
Rs.9,61,576/- of the structure of the house of the petitioner (in CWP
No.1969 of 2018), but the compensation amount as per Land
Acquisition Act was not paid to the petitioners in that they were not
paid 30% solatium, 12% additional amount on compensation and no
.
benefits under Rehabilitation and Resettlement Scheme were
granted to the petitioners. The petitioners were also not allotted the
plots or land for construction of house. It is contended that
Government of Himachal Pradesh issued a notification dated
08.12.2003 through F.C.-cum- Secretary (Revenue) to the Govt. of
Thereafter,
Himachal Pradesh, regarding allotment of plots to all the houseless
families due to the constructions of the Kol Dam Hydro Power
Project.
Revenue Department issued another
notification dated 20.05.2004 regarding amendment of the rules for
the allotment of plots at resettlement colony of Kol Dam 2003 in the
Department of Revenue (Project Cell) notified vide notification dated
08.12.2003.
4. It is contended that the petitioners got the value of the
existing buildings, stone house and temple assessed through
Creative Planner and Associates, N.P. Sunni, who assessed the
damage to the tune of Rs. 28,94,587/- (in CWP No.1176 of 2018)
and Rs.12,38,363/- (in CWP No.1969 of 2018) as per market value.
Therefore, the compensation paid to the petitioners is wholly
inadequate and there is a huge difference of Rs.23,30,506/- (in
CWP No.1176 of 2018) and Rs.2,76,777/- ( in CWP No.1969 of
2018). Referring to the Scheme for the Oustees of Kol Dam Hydro
.
Electric Project, dated 26.02.2000, learned counsel for the
petitioners argued that vide para 2.1.1., Clause (b),
respondent-NTPC was under obligation to construct resettlement
colony and provide necessary infrastructure and amenities. Since
the petitioners are covered under sub para 2.1, they are entitled to
5.
r to
landless grant to the tune of Rs.50,000/- and also for houseless
grant of Rs.60,000/-.
Learned counsel for respondent-NTPC and the learned
Deputy Advocate General, for the respondent-State have opposed
the contention of the learned counsel for the petitioners.
6. The respondent-NTPC has filed separate reply,
contending that Rehabilitation and Resettlement Scheme has been
prepared only for those, who become landless and houseless, due
to acquisition of land by Kol Dam Hydro Electric Project. The
respondents have acquired the land upto the level of 646 meters
from the mean sea level (MSL) whereas the full reservoir level is
only upto 642 meters from the mean sea level. The respondents
have created a safety buffer zone of 4 meters above the reservoir
level, i.e. 642 meters from the sea level. Houses of the petitioners
are situated beyond the level of 646 meters. After impounding of the
reservoir to its capacity, the petitioners stated that the ground floor
.
of their house started showing small cracks. Therefore, damage to
their houses was got assessed through Executive Engineer,
HPPWD, Karsog, by respondent No.4, to the tune of Rs.5,64,081/-
(in CWP No.1176 of 2018) and Rs.9,61,586/- (in CWP No.1969 of
2018) and accordingly paid to the petitioners. It is contended that
neither the houses of the petitioners nor their land were acquired by
the Land Acquisition Collector. There was, therefore, no question of
payment of any solatium or additional compensation for these
purposes. The petitioners could not have been considered as
Oustees, under Clause 1.2 (a) of the Scheme for Rehabilitation and
Resettlement of the Oustees of Kol Dam Hydro Electric Project,
which provides that "Oustee" means a Land Owner who has been
deprived of his house or land or both on account of acquisition
proceedings/private negotiations in connection with the
constructions of Kol Dam Project. It is also contended that benefit
of the said Scheme has been extended to those 42 houseless
families of the surrounding area/village Randol, Thali, Tattapani and
Sunni, who actually became houseless due to acquisition of land for
the constructions of Kol Dam. The petitioners are, therefore, not
entitled to any benefit as they have not become houseless. Even
now, the petitioners continue to reside in their houses. Insofar as
.
the damage to their houses is concerned, they have already been
paid adequate compensation.
7. We have given our thoughtful consideration to rival
submissions and perused the material on record.
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.
- 10 -
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
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
- 11 -
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 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
- 12 -
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
- 13 -
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
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,
- 14 -
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:-
"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. 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
- 15 -
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 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.
With the aforesaid observations, the writ petitions are
disposed of, so also the pending miscellaneous applications if any.
( Mohammad Rafiq )
Chief Justice
( Sabina )
Judge
October 25, 2021
( Himalvi)
