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2019 DIGILAW 508 (JK)

Sansar Singh v. State

2019-12-24

SANJEEV KUMAR

body2019
JUDGMENT : 1. The petitioners in this petition are seeking a direction to respondent Nos. 1 to 5 to pay the compensation to the petitioners to the tune of Rs.27,04,300/- as assessed by the respondents. The petitioners also claim a sum of Rs.1,00,000/- in respect of construction of a school building which they claim, too had damaged in the unfortunate incident that happened on 26.02.2005. 2. Briefly stated the facts leading to the filing of this writ petition are:- Respondent Nos. 1 to 5 have constructed a Hydel Project known as Chenani Hydel Project which was commissioned somewhere in the year 1971. The petitioners claim that they from the time of their ancestors have been living in the village Moud where the project is constructed by respondent Nos. 1 to 5. It is submitted that a Canal of the Project passes through their village which, on 26.02.2005, got bursted causing devastation in the village Moud. Sr. No. 6 The land, trees and crops standing thereon and residential houses of the petitioners were completely damaged. It is claimed that prior to the incident, the petitioners had reported the incident to the employees of the Project aforesaid that the canal which passes through their village was leaking, but no timely action was taken. It is submitted by the petitioners that devastation was caused due to the acts of omission of respondent Nos. 1 to 5. It is further the case of the petitioners that the District Administration, taking cognizance of the catastrophe that had occurred on 26.02.2005, visited the spot and assessed the loss caused to the immovable properties of the villagers including the petitioners. It is submitted that a sum of Rs. 27,04,300/- was assessed by the Revenue and Engineering Departments as loss caused to the houses, crops and the land etc. of the petitioners. Respondent No.7, it is claimed, vide letter No.680-SQ dated 17.07.2006 called upon respondent No.4 to deposit the amount of compensation so that the same could be disbursed to the affected families including the petitioners. Respondent No.7 also intimated the details of assessment made. The said amount was not deposited despite repeated requests of respondent Nos. 6 and as a matter of fact, as is claimed by the petitioners, respondent Nos. 1 to 5 disputed the assessment of compensation for the damage caused to the land due to devastation by the water canal. Respondent No.7 also intimated the details of assessment made. The said amount was not deposited despite repeated requests of respondent Nos. 6 and as a matter of fact, as is claimed by the petitioners, respondent Nos. 1 to 5 disputed the assessment of compensation for the damage caused to the land due to devastation by the water canal. They admitted only a sum of Rs.10,94,545/- on account of damage caused to the houses, fruit bearing and other trees. Since the assessment made by respondent Nos. 6 to 7 on account of damage caused to the land was disputed, respondent No.7 vide his letter dated 888/SQ dated 01.09.2008 requested respondent No.5 to deposit at least the admitted amount of Rs.10,94,545/- so that the said amount is disbursed to the petitioners and possible litigation could be avoided. While the aforesaid matter was under correspondence between respondent Nos. 1 to 5 on the one hand and respondent Nos. 6 and 7 on the other hand, the petitioner moved this Court by way of instant writ petition seeking the reliefs as noted above. 3. Respondent Nos. 1 to 5 and respondent Nos. 6 and 7 have filed separate set of objections. In the reply affidavit filed by respondent Nos. 1 to 5, the loss/damage caused to the properties of the petitioners is not specifically denied. However, it is the stand of respondent Nos. 1 to 5 that the damage had occurred due to a natural calamity and by an act of God and, therefore, no fault or negligence is attributable to respondent Nos. 1 to 5. They have also disputed the assessment made on account of damage caused to the land of the petitioners. They rely upon a report of the Department of Soil Conservation which has opined that the damaged land can be reclaimed by spending an amount of Rs.5,08,870.00 and, therefore, other than the aforesaid sum, no separate compensation for the damage caused to the land is payable. 4. Respondent Nos. 6 and 7 have confirmed the assessment of loss made by the Competent Authorities i.e, Public Works Department, Udhampur (for assessment of damage/loss of house/Gharat, Revenue Department (for assessment of loss of crops), Soil Conservation Department (for assessment of loss of land eroded due to water of canal) and Horticulture Department (for assessment of loss of fruit trees). It is the stand of respondent Nos. It is the stand of respondent Nos. 6 and 7 that as per the preliminary estimate worked out by the Competent Authorities, the total loss caused was to the tune of Rs.27,04,300 which included the cost of damaged land. 5. It is pertinent to mention here that during the pendency of this writ petition, an admitted amount of Rs.10,94,545/- was deposited with Deputy Commissioner, Udhampur and the same has admittedly been disbursed to the petitioners as per their entitlement pursuant to the order of this Court dated 26.04.2018. 6. I have heard learned counsel for the petitioner and perused the record. 7. Learned counsel for the petitioners insists that the petitioners are entitled to the payment of compensation to the tune of Rs. 27,04,300/- as was initially assessed by the District Administration in association with the designated Competent Authorities. He claims that from the various reports prepared at the instance of District Administration, it is beyond pale of any doubt that the damage to the immovable properties of the petitioner has happened due to the act of negligence on the part of respondent Nos. 1 to 5. Learned counsel submits that it is the duty of respondent Nos. 1 to 5 to keep the water canal maintained so that no damage is caused to the life and property of the people residing in the village through which it passes. He further submits that the villagers had noticed leakage in the water canal a week before the incident happened and the matter had been reported to respondent Nos. 1 to 5, but no action was taken. It is, thus, urged that had the respondent Nos.1 to 5 taken timely action, they could have avoided the devastation which caused huge loss to the immovable properties of the petitioners. Learned counsel for the petitioners relies strongly on the preliminary assessment made by the District Administration and submits that there is no reason or justification to deny them the payment of compensation as has been assessed by the designated Competent Authorities. 8. So far as the payment of compensation for damage to the houses/structures, fruits and crops is concerned, the petitioners do not dispute the assessment made. However, they claim that the land has been completely damaged and cannot be reclaimed by spending any amount of money. 8. So far as the payment of compensation for damage to the houses/structures, fruits and crops is concerned, the petitioners do not dispute the assessment made. However, they claim that the land has been completely damaged and cannot be reclaimed by spending any amount of money. The petitioners, therefore, seek the compensation for the land and for that, they are ready to accept the preliminary assessment made by the District Administration in association with designated Competent Authorities. As is further evident from the objections filed by respondent Nos. 1 to 5 as also respondent Nos. 6 and 7, who have taken a stand that the matter was examined through the Department of Soil Conservation and it was the opinion of the Soil Conservation Department that the land which has suffered damage in the incident can be reclaimed by spending an amount of Rs.5,08,870.00. 9. In view of the stand of the respondents, the question is whether the land which has been damaged due to the devastation which occurred on 26.02.2005 is completely damaged for which the petitioners are required to be compensated as per the preliminary assessment or the same can be reclaimed by spending a sum of Rs.5,08,870.00 as opined by the Soil Conservation Department. This question, on the face of it, is a disputed question of fact and cannot be gone into by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. However, simply because the question aforesaid is a disputed question of fact, the petitioners cannot be left at the mercy of the respondents. There is no dispute with regard to the assessment made with respect to the houses/structures, crops and fruits etc., of the petitioner. The only issue that needs to be determined in this petiton is with regard to the amount of compensation that is payable to the petitioners for the damage caused to the land. 10. In view of the rival stand taken by the parties, this Court may not be in a position to come to a definite conclusion. In these circumstances, it would be appropriate to leave this aspect to be considered by the Deputy Commissioner, Udhampur who shall associate both respondent Nos. 1 to 5 as also the petitioners in the process. Let a detailed enquiry into this aspect be held by the Deputy Commissioner, Udhampur. Ordered accordingly. In these circumstances, it would be appropriate to leave this aspect to be considered by the Deputy Commissioner, Udhampur who shall associate both respondent Nos. 1 to 5 as also the petitioners in the process. Let a detailed enquiry into this aspect be held by the Deputy Commissioner, Udhampur. Ordered accordingly. It is further provided that in case the Deputy Commissioner, on inquiry, comes to a conclusion that the land has suffered complete damage due to devastation, the cost of the land as may be assessed by him in negotiation with villagers shall be disbursed to them and consequently the land shall vest in the State. However, in case the Deputy Commissioner finds that the damaged land can be reclaimed, an appropriate sum shall be placed at the disposal of the Soil Conservation Department, who shall do the needful and reclaim the land within a period of one year. In case of failure to reclaim the land within the aforesaid period, the petitioners shall be entitled to the assessed amount of compensation for the land along with interest at the rate of 10% per annum. The Deputy Commissioner shall consider the payment of compensation to the petitioners from the date the assessment was made and the amount was actually disbursed. 11. The writ petition is disposed of in the above terms.