Alok Aradhe, J.The petition is admitted for hearing. With consent of the learned counsel for the parties, the matter is heard finally.

In this petition, the petitioner inter alia seeks a writ of mandamus commanding the respondents to release the assessed amount of damages for three structures/ houses, land admeasuring 60 kanals and 7 marlas as well as damages for fruit bearing and non-fruit bearing trees and also for crop compensation of the land from the Rabi Kharief 2006 to 2015 which remained uncultivable from the year 2006 till filing of the petition in favour of the petitioner along with interest @ 15 per cent per annum on the assessed amount, which is due and payable to the petitioner.

2. Facts giving rise to the filing of this writ petition briefly stated are that during the course of laying of railway track in the year 2006 and construction of an access road, namely, Digdol and Urnihal access road Phase-II by the respondents, the rolling stones towards downhill side have damaged the property referred towhich belongs to the petitioner and made the land uncultivable. It is the case of the petitioner that the petitioner has approached the respondent No.3, namely, Collector, Ramban, who after due verification of the damages caused to the property of the petitioner, by communication dated 01.07.2009 referred the matter to respondent No.5 to release the amount of damages in favour of the petitioner. The respondent No.5 on receipt of the aforesaid communication on 15.07.2009 forwarded the claim of the petitioner to the office of respondents 6 and 7. Thereupon, a three Member Committee consisting of Section Engineer of Northern Railways, Site Engineers of M/s Ircon International and one representative (Patwari) of Revenue Department inspected the site jointly and damages towards the land and the house, were found to be genuine and the case was further forwarded to the authorities for necessary action. However, in respect of the fruit and non fruit bearing trees, it was found that no such trees were found at the site. Thereafter, on 25.05.2011, a three Member Committee consisting of Assistant General Manager, Zone II and III, Ramban, Deputy General Manager, Finance and Assistant General Manager, Banihal assessed the damage caused to the property in the year 2011 and observed that in case of non-payment of the amount of compensation, the crop compensation will continue till finalization of the matter.

3. On 22.11.2011 under directions of the Divisional Commissioner, Jammu and under supervision of Collector, Land Acquisition, Ramban, six Member Committee consisting of officers of various departments including Deputy Commissioner, Northern Railways, Banihal conducted a detailed verification in respect of damages caused in various villages of District Ramban and came to the conclusion that Railway Department will pay the compensation for land damage, five year crop damage and residential houses damage. However, in case of trees, the team could not ascertain the damage as the case was prepared in the year 2007. However, it was unanimously decided that construction company will pay the damages to the tune of 30 per cent on account of fruit bearing trees and 60 per cent in case of non fruit bearing trees. The respondents 4 to 7, however, failed to release the amount in favour of the petitioner in terms of the decision. Thereupon, the petitioner approached this Court by filing the instant writ petition and sought the relief as stated supra.

4. Learned Senior Counsel for the petitioner submitted that the right to hold the property in the State of Jammu and Kashmir is fundamental right and, admittedly, the damage has been caused to the property of the petitioner which has been duly assessed to which respondents 6 and 7 are parties. Learned Senior Counsel for the petitioner during the course of his submissions has invited the attention of this court to the reports dated 12.09.2009, 17.11.2009, 25.05.2011 and 22.11.2011. While inviting the attention of this court to paragraph 14 of the report dated 22.11.2011, learned senior counsel for the petitioner submitted that the respondents have agreed to pay the amount of compensation and, therefore, they cannot wriggle out of the admission made by them. The respondents are under a legal obligation to make payment of the amount of compensation due to the petitioner and in order to escape their liability, the respondents in their objections have taken a plea that the writ petition involves adjudication of disputed questions of fact, which is not correct. In fact, the claim of the petitioner has been admitted by the respondents.

5. On the other hand, learned Deputy Advocate General for respondents 1 to 3 has supported the case of the petitioner. Learned counsel for the respondents 4 and 5 submitted that in view of agreement executed between the respondents 4 & 5 and respondents 6&7 and in view of Clause 2 of the agreement, the liability if any to make payment of damages, is on respondents 6&7. Learned counsel for the respondents 6 and 7 on the other hand, submitted that M/s Ircon International Ltd. is a company registered under the Companies Act and the aforesaid Company has not been impleaded, therefore, the writ petition suffers from the non joinder of necessary party. While inviting the attention of this Court to averments made in the objections and in particular to paragraphs 3, 5 to 7 and 8 to 10, learned counsel for respondents 6 and 7 has submitted that no damage has been caused either to the crops, fruit bearing trees and non fruit bearing trees, which allegedly belong to the petitioner. It is further submitted that the land of the petitioner is steep on a hilly and rocky terrain with wild shrubs/grass growth only on the patches and cultivation of any crop on such terrain is not possible. In this connection, learned counsel for the respondents 6 and 7 has invited the attention of this Court to photographsAnnexure R-1. It is further submitted that petitioner has deliberately not availed of the civil remedy available to him under the law. It is also submitted that son of the petitioner is a Patwari posted in the revenue village and he has prepared fake loss/damage reports. It is also submitted that claim of the petitioner is based on surmises and conjectures and the petitioner is not the owner of the land in question. It is also submitted that respondents 6 and 7 were not parties to the report dated 12.09.2011, therefore, the same does not bind the respondents.

6. I have considered the submissions made by learned counsel for both the sides and have perused the record. Admittedly, the right to hold the property is a fundamental right in the State of Jammu and Kashmir under the Constitution of the State of Jammu and Kashmir. The Supreme Court in the case of Gunvant Kaur v. Municipal Committee, Bathinda and Ors, (1970) AIR SC 802, held that High Court is not deprived of its jurisdiction to entertain a petition under Article 226 of the Constitution of India merely because in considering the petitioners right to relief questions of fact may fall to be determined. It has further been held that in a petition under Article 226 of the Constitution of India the High Court has jurisdiction to try issues both of fact and law, and the exercise of the jurisdiction, undoubtedly, is discretionary, but the discretion has to be exercised on sound judicial principles. In ABL International Ltd. and Another v. Export Credit Guarantee Corporation of India Ltd. And Others, (2004) 3 SCC 553, the Supreme Court has held that in an appropriate case, the Writ Court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar in this regard. The decision rendered in the case of Gunvant Kaurwas referred to with approval by the Supreme Court in the case of State of Kerala v. M K Jose, (2015) 9 SCC 433 [LQ/SC/2015/1028] . It has been held that order for payment of money may sometimes be made against State or an official of State to enforce a statutory obligation (See: Burmah Construction Co. Vs. State of Orissa, (1962) AIR SC 1320).

7. In the backdrop of the aforesaid well settled legal position, facts of the case in hand may be seen especially in view of fact that whether disputed questions of facts arise for consideration in this writ petition and whether the instant case is a fit case for exercise of discretion in favour of the petitioner. It is pertinent to mention here that on 12.09.2009 and 17.11.2009, the site was jointly inspected by Patwari, Site Engineer of M/s Ircon International and Section Engineer of Northern Railways, in which it was found as follows:

8. On the basis of the aforesaid site inspection, the Section Engineer, Banihal forwarded the matter to Deputy Commissioner, Northern Railways, Banihal with the following endorsement:

The site has been inspected jointly by representative of NR, IRCON and Revenue Deptt. The damage of land and houses found genuine. So now may kindly order to damage assessment committee to assess the damage",

9. Thereafter, by communication dated 25.05.2011, sent by Assistant Generarl Manager, Zone II and III to DGM, Finance as well as Assistant General Manager, Banihal, the claim for compensation was assessed in the following terms:

S. No. Description Amount recommended (in Rs.) Remarks 1 House damages 5,02,403.00 As per committees recommendation consisting of NR, IRCON & Revenue. 2. Land Damages 29,97,000.00 Copy attached as Annexure-E. 3 Trees (Fruit bearing) 20,91,784.00 As assessed and recommended by CHO/Ramban. Copy attached as Annexure-G. 4. Trees (Non Fruit bearing) 25,33,147.00 As assessed and recommended by DFO/Ramban. Copy attached as Annexure-G. Total amount (in Rs) = 81,24,334.00

10. Thereafter, the Collector constituted a Committee in pursuance of the directions issued by Divisional Commissioner, Jammu consisting of Deputy Chief Engineer, Northern Railways, Banihal, DFO, Ramban, CHO, Ramban, Executive Engineer, PWD, Ramban, Tehsildar, Ramban and Tehsildar Banihal. The paragraph 14 of the aforesaid report which is relevant for the purpose of the controversy involved in this petition reads as under:

"14. In village Bhajmasta the team after spot verification decided that in case of damage. Case of Mohd. Abdullah S/o Kama the Railway department will pay the compensation for land damage, five year crop damage and residential houses. But in case of trees the team could not ascertain the damage as the case has been prepared in 2007 Railway department has showed reservation so far the number of trees is concerned it was unanimously decided that the construction company will pay the damage of 30% of fruit bearing trees and 60% in case of non fruit bearing trees."

11. Thus from the above narration of facts, it is evident that from time to time, the inspection and verification has been carried out in the presence of respondents 6 and 7 in which, the fact that the damage has been caused to the property of the petitioner during the course of laying of the railway tract in the year 2006, is found to be established. In other words, the claim of the petitioner for damages is an ascertained one and, therefore, the petitioner does not deserve to be relegated to the remedy of the Civil Court, as no disputed questions of fact arise for determination in the instant writ petition.

12. In view of the various reports on record which are stated supra, the contention made by learned counsel for respondents 6 and 7 that no damage has been caused to the property of the petitioner, cannot be accepted. Similarly, the contention of the respondents 6 and 7 that the petitioner should be relegated to the remedy of Civil Court also does not deserve acceptance. On the other hand, from the material available on record, it is evident that the claim of the petitioner has been admitted by the respondents in unequivocal terms and is ascertained sum of money.

13. In view of preceding analysis, I deem it appropriate to dispose of the writ petition with the direction to the respondent Nos. 6 & 7, specially in view of Clause 2 of agreement executed between respondent Nos. 4 & 5 and respondent Nos. 6 & 7 and in view of fact that in discharge of their duties they have violated fundamental right of the petitioner to hold the property in the light of decision of Burmah Construction Co. , to pay the amount of Rs.81,24,334/- as compensation to the petitioner on account of loss caused to the property of the petitioner during the course of laying of the railway track. Let the aforesaid amount be paid within a period of three months from today to the petitioner failing which, the same shall carry interest @ 9 per cent per annum from the date of this judgment till the actual payment is made.

With the aforesaid directions, the petition stands disposed of along with connected MPs.

Final Result : Disposed