Research › Search › Judgment

Jharkhand High Court · body

2024 DIGILAW 665 (JHR)

Bishu Oraon S/o Gumda Oraon v. State of Jharkhand

2024-07-03

ANANDA SEN

body2024
JUDGMENT : ANANDA SEN, J. 1. Heard learned counsel for the petitioner and learned counsel for the respondents. 2. By filing this writ petition, petitioner claims compensation and damages for the loss caused to him. He also prays that adequate damages and compensation be released, which is caused to him as he has been deprived of his fundamental right of livelihood. The prayer in the writ petition is as follows: (A) For issuance of appropriate writs/orders/directions commanding upon the respondents to consider the case of petitioner for compensation and other benefits, against the loss and damages caused by the respondents. (B) For issuance of appropriate writs/orders/directions commanding upon the respondents to release the adequate compensations to the petitioner for loss and damages caused to him, depriving him of his fundamental right of livelihood. 3. Learned counsel appearing on behalf of the petitioner submits that the petitioner is an owner of a Mango Orchid and grows mangoes and earns his livelihood by selling the same. It is his case that adjacent to his mango orchid, a stone crusher unit has been set up 2½ years ago and because of the dust which is emitted by the stone crusher unit, the mangoes are not growing properly and same has caused huge loss of livelihood and income to the petitioner. It is his case that he has spent 12,000/- to 15,000/- per tree at the initial stage, but the production of mangoes has deteriorated, which can be attributed to the stone crusher unit. As per him, he used to earn Rs.1500/- to 2000/- per annum per mango tree totaling to Rs.7,50,000/- to Rs.10,00,000/- but it has adversely been affected. Petitioner has filed several representations, but no action has been taken, which forced the petitioner to approach this Court. It has been further argued that the Hon’ble Supreme Court in the case of Olga Tellis vs. Bombay Municipal Corporation & Others, AIR 1986 SC 180 has held that right to earn livelihood is protected under Article 21 of the Constitution of India and that being so any infringement thereof is amenable to writ jurisdiction and the petitioner can approach this Court claiming damages/compensation. Further, by referring to the case of Nilabati Behera vs. State of Orissa, AIR 1993 SC 1960 , petitioner prays that this Court has jurisdiction to grant compensation to the petitioner. 4. Further, by referring to the case of Nilabati Behera vs. State of Orissa, AIR 1993 SC 1960 , petitioner prays that this Court has jurisdiction to grant compensation to the petitioner. 4. Learned counsel appearing on behalf of the respondents submits that the claim of the petitioner needs proper assessment and determination. Loss and damages needs to be assessed, which cannot be done under Article 226 of the Constitution of India, thus, this writ petition should not be entertained as several disputed questions will arise and will be involved in determining damages. 5. During course of argument, I had put specific question to the petitioner as to whether his prayer is for any direction to stop functioning of the stone crusher unit, to which learned counsel for the petitioner replied in negative. Another question was put as to whether stone crusher unit is running without having environmental clearance, so that this Court can pass an appropriate order, to which learned counsel for the petitioner submits that she is unaware of the aforesaid fact and the same is also not pleaded in the writ petition. It is her only contention that proper damages/compensation should be paid to the petitioner for the loss of livelihood arising out of agricultural produce. 6. It is not disputed that right to livelihood falls within Article 21 of the Constitution of India and is a fundamental right. Breach of any fundamental right attracts exercise of power under Article 226 of the Constitution of India. The real question is whether the petitioner can claim damages by filing a writ petition under Article 226 of the Constitution of India before this Court. The Hon’ble Supreme Court in the case of Common Cause vs. Union of India, (1999) 6 SCC 667 at paragraph 127 thereof, has referred to the definition of “damages” as defined by McGregor, which was adopted by Lord Hailsham, L.C. in Cassell & Co. Ltd. v. Broome, (1972) 1 All ER 801 (HL) at 823e. It was also mentioned that the definition in Halsbury’s Laws of England (4th Edn.) Vol.12, Para 1102, is similar to the definition as set out. Paragraph 127 of the said judgment reads as under: 127. Ltd. v. Broome, (1972) 1 All ER 801 (HL) at 823e. It was also mentioned that the definition in Halsbury’s Laws of England (4th Edn.) Vol.12, Para 1102, is similar to the definition as set out. Paragraph 127 of the said judgment reads as under: 127. “Damages” as defined by McGregor: “are the pecuniary compensation, obtainable by success in an action, for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum which is awarded unconditionally.” This definition was adopted by Lord Hailsham, L.C. in Cassell & Co. Ltd. v. Broome, (1972) 1 All ER 801 (HL) at 823e. The definition in Halsbury’s Laws of England (4th Edn.) Vol. 12, Para 1102, is similar to the definition set out above. 7. Damages fall under two heads - special damage and general damage. Further, damages are pecuniary and non-pecuniary. Pecuniary damages are such type of damages, which the person has actually incurred and the same is capable of being calculated in terms of money. Non-pecuniary damages are not capable of being quantified in terms of money and cannot be assessed arithmetically. Loss of earning is a pecuniary damage, where the actual loss is quantified and the said amount is sought by way of damages. Non-pecuniary damages are like loss of amenities, enjoyment of life etc. A non-pecuniary loss is very difficult to quantify, thus, the same is assessed on the basis of some hypothesis, whereas pecuniary loss cannot be assessed on the basis of hypothesis inasmuch as actual loss of earning and prospective earning needs to be assessed. 8. In a case of pecuniary loss, the party, who is claiming such damages, because of the loss needs to establish the nature of loss and the quantum of such loss. He has to prove by cogent evidence that what he was earning and was supposed to earn and the circumstances, which had cut down the said earning and the extent of such reduction for which damages is being claimed. These pecuniary damages need to be proved by cogent evidence, oral and documentary. These are essentially a question of fact. 9. In the instant case, it is the case of the petitioner that because of the stone crusher and its pollution, which is being caused, his crops are being damaged. These pecuniary damages need to be proved by cogent evidence, oral and documentary. These are essentially a question of fact. 9. In the instant case, it is the case of the petitioner that because of the stone crusher and its pollution, which is being caused, his crops are being damaged. He claims that there are number of mango trees, which are not giving proper yield now, thus, he is claiming damages. Be it noted that the petitioner is not claiming for a writ or direction upon the respondents to shut down the crusher unit, rather he is praying for damages and compensation. This is a pecuniary damage, which he is claiming. To prove the extent of damage, essentially the petitioner has to prove the number of trees, which he has planted, the amount of yield the petitioner was receiving prior to setting up of crusher unit, impact of the crusher unit and down fall of the yield. He has also to prove as to what amount he was earning earlier and what he is earning now. This has to be proved by documentary and oral evidence. This cannot be assessed by mere asking or hypothesis, even if there is a loss of livelihood. 10. The fact, which the petitioner needs to prove is complicated and as stated above requires oral and documentary evidence. When a fact needs to be proved by oral or documentary evidence (the fact here is quantum of loss etc.), the High Court should be loath in entertaining such writ petitions and instead must relegate the parties to remedy of a civil suit. This has been held by the Hon’ble Supreme Court in the case of Punjab National Bank vs. Atmanand Singh, (2020) 6 SCC 256 . If any facts need to be unearthed and investigated and determined on the basis of evidence, the matter should be relegated to a civil suit, rather than by a Court exercising prerogative of issuing writs. In the case of ABL International Ltd. vs. Export Credit Guarantee Corporation of India Ltd. (2004) 3 SCC 553 it has been held by the Hon’ble Supreme Court that when there is serious disputed questions of facts which requires consideration of evidence which is not on record, applications or petitions will not normally be entertained by a court in the exercise of its jurisdiction under Article 226 of the Constitution of India. In the said case, the Hon’ble Supreme Court relied on the judgment in the case of Gunwant Kaur vs. Municipal Committee, Bhatinda, (1969) 3 SCC 769 where dealing with such a situation of disputed questions of fact in a writ petition, the Hon’ble Supreme Court had held as under: “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 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 such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.” 11. In this writ petition, even if I hold that there is a serious infringement of right of the petitioner on the ground of functioning of the crusher unit, yet this Court exercising jurisdiction under Article 226 of the Constitution of India cannot determine the quantum of loss suffered or any future loss petitioner may sustain, which needs arithmetical calculation based on evidence on record. Lump sum compensation is not warranted in this type of cases. 12. Lump sum compensation is not warranted in this type of cases. 12. Further, from the facts of the case, I find that even if the case of the petitioner is accepted that his income has been curtailed and his right has been infringed by the crusher, said infringement is of private law right for which the public law remedy under Article 226 of the Constitution of India cannot be invoked. 13. From what has been held above, I am not inclined to entertain this writ petition under Article 226 of the Constitution of India, wherein the petitioner has claimed damages for loss of his yield. If so advised, the petitioner should approach the Civil Court of competent jurisdiction claiming damages by producing appropriate and adequate evidence in support of his claim. 14. This writ petition is, accordingly, dismissed with the aforesaid liberty. Pending interlocutory applications, if any, stand disposed of.