WPMS/1534/2021
2021 Latest Caselaw 3175 UK

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                                  WPMS No. 1534 of 2021
                                  Hon'ble Sharad Kumar Sharma, J.

(Through Hybrid Mode)

Mr. Navnish Negi, Advocate for the petitioner.

Mr. Rakesh Kunwar, Addl. C.S.C. for the State of Uttarakhand.

The petitioner, in the present Writ Petition, has prayed for the following reliefs :-

"i. To issue a writ, order or direction in the nature of mandamus commanding the respondent No.3 to assess the damages cause to the property of the petitioner and to consider the compensation of the damaged property in accordance with law.

ii. To pass any other order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

iii. To award the cost of the petition." This Court posed a question, to the learned counsel for the petitioner, as to under which provisions of law, he would be entitled to be paid with the damages, which he contends that he was entitled to receive for the loss he has suffered, on account of the landslide, which was caused on account of the widening of NH-58, from the place called as Kodiyaala to Devprayag, and it was on account of disproportionate gradation of the said road, the landslide has taken place, damaging his property, which was named as hotel 'Holi Sangam'.

The payment of damages or a compensation are always contemplated under the Act or policy or the guidelines, which are issued by the State agency. No such document is on record to substantiate, his case that his claim for damages or for payment of compensation, caused to his property because of the aforesaid project of NH-58, was provided under law, which could enable the petitioner to stand his case for the grant of damages, by way of writ of mandamus.

In response to it, the learned counsel for the petitioner had made reference to the provisions contained under Section 13 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013, Section 13 of the said Act, which is extracted hereunder deals with the payment of damages, by an Officer, so authorised under Section 12, meaning thereby, the determination of the damages contemplated under Section 13 of the Act, will always be in relation to an act or damages, which is performed by the Officer, thus authorised by the State to carry out the functions which are contemplated under Section 12 of the Act, which is that of preliminary survey of land and power of an Officer to carry out the survey. Section 13 of the Act is extracted hereunder:-

"Payment for damage. - The officer so authorised under section 12 shall at the time of entry under section 12 pay or tender payment for any damage caused, and, in case of dispute as to the sufficiency of the amount so paid or tendered, he shall at once refer the dispute to the decision of the Collector or other chief revenue officer of the district, and such decision shall be final."

Damages under Section 13 of the Act, and its determination will always be read in relation to the damages caused by the competent authority, while conducting the survey under Section 12 of the Act, in order to undertake an acquisition proceedings under the Act of 2013, which is not the case at hand.

Hence, the damages as claimed by the petitioner under Section 13 of the Act, since it is falling outside the ambit of action contemplated under Section 12, the said principle of Act of 2013, will not be applicable, for the purposes of grant of writ of mandamus, for the payment of damages because the land, in question, for which, the damages has been sought, admittedly was outside the ambit of any acquisition proceedings, under the Act of 2013.

Based on the assessment and the recommendation, which has been made by the authorities, particularly, respondent No.3, in his correspondence dated 18.02.2021, the petitioner is extracting the said observations made therein, as if, it was a determination made by the competent authority under law with regard to the expanse of the damages caused to the petitioner's property and hence, he would be entitled for the compensation because there is no factual determination required.

This Court cannot be oblivious of the fact that the action of respondent No.3, was not a statutory action having legal sanction under law, but rather it was a response given on the representation of the petitioner dated 18th January, 2021, when he has conducted the survey and had assured the payment of damages, which would be exclusively any executive action.

The said report of respondent No.3 dated 18.02.2021, would be exclusively within the prerogative of respondent No.3, which is yet again not having any sanction of law, and it cannot be relied with, for the reason being that it does not express the method and modalities adopted for quantifying the damages suffered by the petitioner, Hence, this report of 18.02.2021, would exclusively, cannot be attracted to be read for the purposes of issuing a writ of mandamus, for the payment of damages, because it is an assessment of an individual officer, on the representation of the petitioner, which has got no sanction or authority under law.

The learned counsel for the petitioner had made reference to a judgment rendered by the Division Bench of this Court, as reported in 2018 (1) U.D., 17, Kawaljeet Singh Talwar Vs. State of Uttarakhand and others, and particularly he had made reference to para 6 of the said judgment. Para 6 of the said judgment is extracted hereunder :

"6. When a matter arises under a contract, it is true that ordinarily the Court would relegate the party to a competent forum, but this is not an inflexible or invariable rule. The power of the writ court is wide enough to deal with injustice wherever it is found. In fact, the Courts in India are not trammeled by technicalities of the law, which bogged down the English Courts. It is also true that if the disputed questions of fact arise, it may be a ground to turn away a writ applicant even in a writ of mandamus. It is not the law that the writ court cannot decide a question of fact. When a case is brought up before the court for the first time, by the nature of the case, the Court may be in a position to turn-away an applicant on the basis that it necessarily would involve adjudicating a highly disputed question of fact, which cannot be decided, except after oral evidence is taken. The question as to whether a disputed question of fact arises, in many cases, would, however, depend upon the pleadings, which are introduced in response to the writ petition by the answering respondent(s). In a case, which may arise out of a contract, if the complaint is that the work has been done by a contractor and there is absolutely no dispute regarding the fulfillment of the contract raised by the respondent, it may not be a proper exercise of the jurisdiction, wide as it is, to relegate a party to the prolix process of the Civil Court, when there is nothing much to be decided by the Civil Court. There may be other reasons like paucity of fund as in fact is the case, which is sought to be projected in this case. We do notice that ordinarily the matters relating to enforcement of contractual rights should not be entertained by the writ court, but if the dispute is only relating to the non- payment of an amount, which is totally beyond the pale of doubt, in appropriate cases, the writ court can entertain such cases"

If the factual backdrop of the said case is taken into consideration, in fact, it was emanating from a contractual obligation, which was entered between the petitioner and respondent No. 4, therein, for construction of a road, where there was a pre-determined assessment of financial liability, which was to be met by the employer, admittedly to be paid to the contractor on the conclusion of the work.

In those eventuality, where the amount which was liable to be paid under contractual obligation, is not a fact, which is not disputed by the employer; that has been held and settled to be made payable without even calling upon the contractor to approach the Civil Court and the said principle was based upon the ratio laid down by the Hon'ble Apex Court in the judgment of (1986) 2 SCC 679, Comptroller and Auditor General of India Vs. K.S. Jagannath and another.

Factually, in the present case, it is in vast contradiction, to the facts of the said case, on which,the reliance has been placed by the learned counsel for the petitioner.

Hence, as per the opinion of this Court, since damages claimed by the petitioner, does not fall for determination to be within the ambit of any statute or law, the report of the Officer concerned, submitted or assessing the quantum of damages, cannot be taken as a foundation to issue a writ of mandamus, because that report itself will not constitute to be a law, within Article 13 of the Constitution of India, which has been infringed and which could be enforced by writ of mandamus.

Hence, the Writ Petition is dismissed subject to the liberty left open to the petitioner, to avail any other appropriate legal remedy available to him under law.

The Suit, if any, which may be filed, would be decided independently.

(Sharad Kumar Sharma, J.) Dated 18.08.2021 Shiv