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Judgment
Syed Bashir-Ud-Din, J.—Petitioner has approached this court in writ jurisdiction with petition allegation that in the year 1995 Urban
Engineering Environment Department through City Drainage Division Srinagar carried out the drainage programme via Qadim Masjid, Qureshi
Mohalla lane Lal Bazar Srinagar, adjacent to the house of the petitioner. The digging and excavation of soil on spot was done negligently, without
taking proper precautions. It exposed petitioner's house risk and damage. The house was actually damaged by the erosion of the trench walls and
cracks developed in his house. Petitioner and his family had to flee for their lives and left the house. It was unsafe and dangerous to live in the
house. The department caused the damage to the house consequent or excavation, erosion and taking of the soil and on his presentation the
department took notice and Asstt. Engineer was deputed. On verification he reported that the damage is cause as alleged and recommended an
amount of Rs. 45,000/- for payment to petitioner to redress and address his grievance. The matter went up and down in the administrative ladder
in U.E.E. Deptt. without any relief to the petitioner, though the damage caused to the petitioner's house is recommended to be recovered from the
Contractor (Annexure C to D1). On these allegations the petitioner prayed for Mandamus for release of Rs. 1,17,000/- on different counts.
The respondent have yet to file reply. The case has been admitted to hearing on 10.6.2002. Despite opportunities the reply is not filed even at
post admission stage. In CMP 913/2001, the court passed the following direction:--
Objections within above said period, Meanwhile, keeping in views the Annexure B, C, and D, respondents/competent authority shall consider the
case of petitioner and take a decision in the matter.
Respondents in compliance to order dated 10.6.2002 filed an application CMP No. 191/03, where the compliance report and orders of the Chief
Engineer of the UEE Department Srinagar, are placed on record.
On consensual submissions of the counsel for the parties the main matter as also the CMP is taken up for final disposal.
In the report regarding compliance of order dated 10.6.2002 of the court in CMP No. 913/2001 in the main writ, it is stated that the matter has
been considered. The submission of report by the Asstt. Executive Engineer. Left River Drainage Sub Div. Srinagar is acknowledged. It is stated
that the maximum expenditure involved to restore the damage would be in the order of Rs. 35,000/- and the respondents are prepared to redress
the grievance of petitioner to this extent. Petitioner had filed a civil suit which was withdrawn later on. The respondents have stated that the liability,
if any, is not of the department, but of the contractor, carrying of the work on spot is not refuted. It is interesting to note that the so called
compliance report and the order passed by the Chief Engineer in the matter are not even on affidavit. The reply to main matter is not even filed.
In such circumstances, the petition allegations cannot be said to be refuted. Apart from the communication referred as annexure to the compliance
report, CMP 191/03 and the enclosed compliance report, the liability is not denied by the department and in any case not at all on affidavit. From
record it is manifestly evident that the petitioner's house has sustained damages and developed cracks because of digging and soil excavation on
spot by engineering wing of the UEE Deptt, may be through some contractor. The damage to the house was caused as no proper care and caution
was observed. The trench walls gave way and led to cracks. The circumstances are so glaring that they speak for themselves to show negligence
and lack of proper care and caution on the part of the department. The department cannot escape the liability for the damages. The damages
assessed rather quantified in money terms is by concerned engineer in the sum of Rs. 35,000/-. The concerned AEE Drainage Sub Div. Srinagar
has stated that the estimated cost in restoring the damage is at the most Rs. 35,000/- and payment of this amount should redress the grievance of
the petitioner. There is no other assessment of the damage. Therefore, the prayer of the petitioner regarding award of huge damages prayed for in
the petition, cannot be acceded and that too in public law jurisdiction of the writ court. The detail issues will have to be addressed on enquiry after
the parties have opportunities to lead evidence regarding the factum and quantum of damage caused and estimation thereof. All this can be
addressed to in suit under general law (torts). The petitioner is free subject to all just and legal exceptions to pursue remedies available to him
under law.
Placed in the above situation, the counsel for the respondents/State submits that the State Government and its UEE Department is prepared to pay
the estimated approximate amount of Rs. 35,000/- as assessed by the concerned engineer, recoverable from the contractor to whom work was
allotted.
The counsel Mr. S. H. Thakur, receives well the above suggestion and submits that he would settle down for the amount of Rs. 35,000/-,
leaving the adjudication of recovery of full compensation/damages in appropriate civil proceedings before appropriate forum.
In the above view of the matter reinforced by the consensus of the parties, the writ petition on agreement is disposed of as under.
A mandamus is issued to command the respondents to pay Rs. 35,000/- with interest 8% per annum from October 1995 (after submission of
report by the concerned Asstt. Executive Engineer, Annexure-B) till actual payment. The prayed relief of compensation on other counts as prayed
in the writ is declined. However, the writ petitioner is free to pursue remedy as may be available to him before proper forum under law. In the
event of petitioner electing to pursue such proceedings before the proper forum, then the aforesaid amount with interest awarded under Public Law
Jurisdiction shall be taken into consideration and adjusted towards the over all payments/compensation/damages, if any, awarded, consequent on
the damage to the property in question. All other interim matters shall also stand disposed of in terms of the above Disposed of.