Jammu & Kashmir High Court - Srinagar Bench

Farooq Ahmad Lodhi vs Union Of India And Others on 9 May, 2025

Author: Sindhu Sharma

Bench: Sindhu Sharma

  HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                 AT SRINAGAR

                                                              OWP No. 1104/2016

                                                   Pronounced on:         09.05.2025

Farooq Ahmad Lodhi                                     .... Petitioner/Appellant(s)

                         Through:-      Mr. M.M. Khan, Advocate.

                   V/s

Union of India and others                                         .....Respondent(s)

                         Through:-      Mr. M.A. Beigh, Advocate.
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                  JUDGMENT

01. The petitioner has invoked the jurisdiction of this Court under Article

226 of the Constitution of India, seeking following reliefs:

"(i) Writ of Mandamus, commanding the respondents to assess and pay compensation of Rs. 20.00 lacs for the residential house of the petitioner located in Village Gingal, which has been rendered uninhabitable due to the installation of a High-Tension Transmission Line at Uri, Wagoora.

(ii) Writ of Mandamus, the respondents be directed to pay damages of Rs.

5.00 lacs to the petitioner for mental distress, agony and torture at the hands of respondents.

(iii) Writ of Mandamus, the respondent be further directed to pay compensation along with interest @ 12% per annum to the petitioner for the wrongful retention of compensation since 1996 till date."

02. The petitioner claims to be the owner of landed property in Khasra No.

603, situated in Village Gingal, Tehsil Uri, measuring 5 Marlas, where a

residential house over a small portion of land, has been constructed by him.

03. The respondents started constructing a tower to lay high-tension

transmission lines over the roof of the petitioner's residential house. This

compelled the petitioner to file a civil suit before the learned District Judge,

Baramulla, seeking to restrain the respondents from constructing the said

tower and laying transmission lines over his house.

04. Despite the notice issued by the civil court, the respondents continued

with the construction and completed the same, however, they extended

assurance to the petitioner that he would be compensated for the damage

caused to his residential house and the fruit-bearing trees affected during the

construction and laying of the high-tension wires.

05. It is submitted that the petitioner did not pursue his suit further in light

of the assurance and promise made by the respondents regarding payment of

compensation. The petitioner has time and again represented to the

respondents seeking compensation for his residential house, which has

become unsafe for habitation due to the overhead high-tension transmission

lines. Copies of these representations have been enclosed along with the

report of the concerned Patwari.

06. The petitioner also approached the Chairman, District Legal Services

Authority, Baramulla, seeking compensation, however, no concrete action

was taken, therefore, the petitioner now seeks the indulgence of this Court

for the award of compensation of Rs. 20 lacs for his residential house, which,

he submits, has become uninhabitable, and Rs. 5 lacs for mental stress.

07. It is further submitted that the respondents have acted in a

discriminatory manner and adopted a pick-and-choose policy. The petitioner

contends that other similarly situated persons affected by the same

transmission line have been duly compensated, whereas he has been denied

the same. He has placed on record information obtained through RTI

application, showing that compensation was paid to individuals listed at

Serial No. 1 to 2 for residential houses irrespective of the distance from the

high-tension line of 400 KV. Similarly, those falling under Serial Nos. 3 to

11, having a distance of 13 to 15 meters from the line, were also

compensated. The petitioner submits that the respondents have not acted on

their assurance and have put the life of the petitioner and his family members

at risk which has caused distress to him, as such, he should be compensated.

08. In their objections, the respondents have submitted that the work on the

transmission line in question was completed in 2010-2011, and the line itself

was charged in the year 2011. They have disputed the claim of the petitioner

for damages on the ground that the same is not based on correct facts. It is

further submitted that they only constructed Tower No. 35 at a hilltop

location approximately half a kilometre away from the house of the

petitioner. They submit that the house of the petitioner is located at the

bottom of the hill and that a concrete road also passes by it. While the

petitioner alleges that damages were caused to his house during construction,

the same is denied by the respondents.

09. The respondents submit that in terms of communication dated

25.10.1996 wherein the petitioner was advised not to cause disturbance in

the execution of the line and stringing work. They submit that their assurance

before the civil court was limited to the extent that, if the petitioner was

found entitled to any compensation, the same would be provided. The

petitioner has also placed on record documents showing that his residential

house along with a playground was rented out to the Education Department

in 1991, indicating that the house existed on Khasra No. 603 at that time. All

the averments made in the writ petition have been denied by the respondents.

10. The law admittedly in this regard stands settled by a Division Bench of

this Court in the judgment titled 'Ranvijay Chand and another Vs. State

of J&K and others', reported in 2005 (1) JKJ (236), wherein it has been,

inter alia, held that a land holder cannot assert any right, legal, fundamental

or constitutional right qua transmission line; the aerial right of way in respect

of transmission lines continues to be with the state and individual owners

cannot claim compensation in respect thereof. The relevant paragraph of the

said judgment is reproduced as under:

"...3. ....it cannot be interfered notwithstanding that the transmission lines are being spread over the field of the individuals, subject to their right to claim damages, if approved. However, with regard to the aerial right of way, it continues to be with the State and the individual owners cannot claim compensation in respect thereof.

12. ....the transmission lines are being laid as per the original alignment approved in the project report in pursuance of the sanctioned scheme and its feasibility cleared by the Techno-Economic Committee. The towers are being erected on which the transmission lines are to be laid across the land of the appellants/petitioners, in the manner provided in the project report and in such event, the appellants/petitioners cannot assert any right legal, fundamental or constitutional, violated by the respondents in doing an act within the purview of its powers recognized by the statute."

11. In view of the aforesaid facts and circumstances of the case and the law

settled in Ranvijay (supra), the claim of the petitioner for compensation

appears to be misplaced. The law is well settled that the aerial right of way

for transmission lines remains with the State, and individual landowners

cannot assert legal, fundamental, or constitutional rights over the

construction of transmission lines, unless there is a proven loss or damage

resulting from the construction.

12. This apart, in light of the provisions of Electricity Act and the rules

framed thereunder, the respondents are required to maintain appropriate

distance while stringing such lines, as per the Act.

13. The issue which remains is whether the petitioner is entitled to any

compensation with regard to the damages he has suffered. It is well settled

that claims for damages, including those relating to a residential house and

fruit-bearing trees are disputed questions of fact, which can only be proved

14. In view of the aforesaid facts, the petitioner has raised disputed

questions of fact which cannot be considered by this Court. This Court, in

LPA(OW) No. 83/2013, titled 'Sanjay Kumar Gupta vs. State of J&K

and others', decided on 23.04.2015, has held as under:

"8. As far as the prayer for payment of compensation is concerned, the facts are in dispute. It is not known how much quantity of the minor forest produce was stored and appellant sustained how much amount due to delay in issuing the transport permission. It is a well settled proposition of law that the disputed facts cannot be decided in a writ petition and the said issue is no longer res integra. Whether the High Court is entitled to go into the disputed questions of fact in a writ petition filed under Article 226 of Constitution of India, is already decided by Hon'ble the Supreme Court in the following decisions:-

(a) In (1976) 1 SCC 292 (Arya Vyasa Sabha and Others v. The Commissioner of Hindu Charitable and Religious Institutions & Endowments, Hyderabad and Others) the view taken by the High Court that disputed questions of fact are to be left open to be decided before the Civil Court was upheld by the Supreme Court.

(c) In (2006) 9 SCC 256 (Himmat Singh vs. State of Haryana and others), Hon'ble the Supreme Court held that 'the statement of the appellant or the 5th respondent was correct or not could not ordinarily be tested in writ proceedings and it is well known that in writ petition ordinarily such a disputed question of fact could not be entertained'."

(d) In yet another decision reported in (2006) 7 SCC 654 (Food Corporation of India vs. Harmesh Chand), the Supreme Court held as follows:

"Since the facts were seriously disputed by the appellant and no factural finding could be recorded without consideration of evidence

adduced by the parties, it was not an appropriate case in which the High Court ought to have exercised its writ jurisdiction. The parties could have approached a civil court of competent jurisdiction to adjudicate the matter."

15. In view of the aforesaid facts and circumstances of the case, there is no

merit in this petition and the same is, accordingly, dismissed.

(Sindhu Sharma) Judge

Jammu: