# Balkaran Das Gupta v. U.O.I. & Ors

- **Citation:** (2022) 12 ILRA 266
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-20
- **Case number:** Writ C No. 8505 of 2022
- **Bench:** Devendra Kumar Upadhyaya, Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/balkaran-das-gupta-v-u-o-i-ors-48012
- **Pages:** 7

## Headnote

A. Constitution of India, 1950 - Article
226 - Writ - Legal impediment to exercise
discretionary power - Public law remedy,
whether is available for private-law right
- Held, damages/compensation can be
awarded by this Court in exercise of its
jurisdiction under Article 226 of the
Constitution of India only in case some
infringement
of
public-law
right
is
involved
and
found
-
For
mere
infringement of private-law right, publiclaw remedy under Article 226 of the
Constitution of India is not available.
(Para 8)
B. Constitution of India - Article 226 -
Writ - Infringement of private-law right -
Damage for demolition of construction
done
by
the Railway
authority
was
claimed - Exercise of discretionary power,
extent of - Held, determination of the
issue as to where exactly the building in
question is situated, whether on the land
belonging to the petitioner or on the
railway
land,
will
necessary
require
leading of the evidence by both the
parties, which will not be permissible in
exercise of jurisdiction of this Court under
Article 226 of the Constitution of India.
(Para 11)
12 All. Balkaran Das Gupta Vs. U.O.I. & Ors.
267
C. Constitution of India, 1950 - Article
226 - Writ - Disputed question of fact,
how far can be dealt with - Held, the
disputed
question
of
facts
are
not
permissible to be delved into by the High
Court while exercising its jurisdiction
under Article 226 of the Constitution of
India for the reason that the writ petitions
are generally decided on the basis of
uncontroverted facts to be deduced from
the affidavits which the parties to a
dispute are called upon to file - It is well
settled that relief under Article 226 of the
Constitution of India is not available for
deciding disputes for which a remedy
under general civil law is available to a
party approaching the Court. (Para 9)
Writ petition dismissed. (E-1)
List of Cases cited:

## Text

266 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) pleading of material facts
stating irregularities in counting of votes;

(iii) a roving and fishing inquiry
shall not be made while directing recounting of votes; and

(iv) an objection to the said effect
has been taken recourse to".

23. In the present case, the election
petition neither contains any specific
pleading nor there is any evidence shown to
support the case in the election petitioner.

24. It is found that respondent no. 6
made no prayer for setting aside the
election, or declaring the election to be
void or declaring the applicant to be duly
elected or any other relief that may be
granted
to
the
petitioner.
In
these
circumstances,
any
application
under
Section 12-C of the Act, 1947 confining the
prayer only for recounting and nothing else,
would not be maintainable. It has also been
seen that the election petition does not
plead any of the grounds challenging the
election as prescribed under Section 12-C
of the Act. There is also no reason to
disbelieve that the Returning Officer
adopted the procedure of lot in the event of
equal votes in any manner not permissible
under the law. He has to proceed with the
procedure of lot 'forthwith' without there
being any requirement of order in writing.

25. In view of the discussions made
hereinabove, the writ petition is allowed.
The impugned orders dated 08.11.2022 &
15.10.2022 passed by the District Judge,
Pratapgarh and the respondent no. 3 i.e. the
Prescribed
Authority/Sub
Divisional
Officer,
Patti,
District
Pratapgarh
respectively are hereby quashed.
----------
(2022) 12 ILRA 266
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.12.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Writ C No. 8505 of 2022

Balkaran Das Gupta ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sridhar Awasthi, Sr. Advocate

Counsel for the Respondents:
A.S.G.I., C.S.C.

A. Constitution of India, 1950 - Article
226 - Writ - Legal impediment to exercise
discretionary power - Public law remedy,
whether is available for private-law right
- Held, damages/compensation can be
awarded by this Court in exercise of its
jurisdiction under Article 226 of the
Constitution of India only in case some
infringement
of
public-law
right
is
involved
and
found
-
For
mere
infringement of private-law right, publiclaw remedy under Article 226 of the
Constitution of India is not available.
(Para 8)
B. Constitution of India - Article 226 -
Writ - Infringement of private-law right -
Damage for demolition of construction
done
by
the Railway
authority
was
claimed - Exercise of discretionary power,
extent of - Held, determination of the
issue as to where exactly the building in
question is situated, whether on the land
belonging to the petitioner or on the
railway
land,
will
necessary
require
leading of the evidence by both the
parties, which will not be permissible in
exercise of jurisdiction of this Court under
Article 226 of the Constitution of India.
(Para 11)
12 All. Balkaran Das Gupta Vs. U.O.I. & Ors.
267
C. Constitution of India, 1950 - Article
226 - Writ - Disputed question of fact,
how far can be dealt with - Held, the
disputed
question
of
facts
are
not
permissible to be delved into by the High
Court while exercising its jurisdiction
under Article 226 of the Constitution of
India for the reason that the writ petitions
are generally decided on the basis of
uncontroverted facts to be deduced from
the affidavits which the parties to a
dispute are called upon to file - It is well
settled that relief under Article 226 of the
Constitution of India is not available for
deciding disputes for which a remedy
under general civil law is available to a
party approaching the Court. (Para 9)
Writ petition dismissed. (E-1)
List of Cases cited:
1.
Chairman,
Railway
Board
&
ors.
Vs
Chandrima Das & ors.; (2000) 2 SCC 465
2. Common Cause, A Registered Society Vs
U.O.I.; (1999) 6 SCC 667
3. H.S.E.B. & ors. Vs Ram Nath & ors.; (2004)
SCC 793
4. St. of Mizoram & ors. Vs Hrangdawla & anr.;
(2011) 3 Gauhati Law Reports 444
5. St. of Kerala & ors. Vs Safia; (2021) SCC
Online Ker 3283
6. K.S. Puttaswamy & anr. Vs U.O.I. & ors.;
(2017) 10 SCC 1
(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.
&
Hon'ble Saurabh Srivastava, J.)

1. Whether in exercise of writ
jurisdiction under Article 226 of the
Constitution
of
India
damages/compensation
for
alleged
demolition
of
certain
constructions
belonging to the petitioner done by the
State or any State instrumentality can be
awarded in the facts of this case, is the
issue, which engages our attention in this
petition.

2. Heard Shri Sudeep Seth, learned
Senior Advocate, assisted by Shri Sridhar
Awasthi, for the petitioner, learned counsel
representing the Union of India/Railways
and learned counsel representing the Staterespondents and perused the records
available before us on this writ petition.

3. The petition has been filed with the
allegation
that
certain
constructions
existing on khasra plot no.1689 (New
No.163) situate in Tehsil-Rudauli, DistrictAyodhya were demolished by the Railways
authorities on 27.09.2019 without giving
any show cause notice or prior information
to the petitioner, that too, in his absence. It
has been argued by the learned Senior
Advocate, Shri Sudeep Seth representing
the petitioner that on account of illegal
demolition undertaken by the respondents,
the petitioner has been deprived of his right
of property to use the same in derogation of
Article 300-A of the Constitution of India.
Further submission is that the petitioner
was never issued any notice prior to
demolition; neither any proceedings under
Public Premises (Eviction of Unauthorized
Occupants) Act, 1971 were undertaken, nor
have
the
respondents
followed
the
provisions of Railways Act, 1989 and the
Indian Railways Court for Engineering
Department. It has, thus, been argued by
the learned counsel for the petitioner that
by resorting to illegal demolition existing
on khasra plot no.1689 (New No.163) the
respondents have since breached Article 19
(1)(g) of the Constitution of India and such
action
is
also
in
defiance
of
the
constitutional right of the petitioner and
enshrined
under
Article
14
of
the
Constitution of India as the same is
completely arbitrary, hence they are liable
268 INDIAN LAW REPORTS ALLAHABAD SERIES
to be saddled with compensation and
damages to be paid to the petitioner to the
tune of Rs.50 lakh.

4. The facts, which have been narrated
in the writ petition, are that khasra plot
nos.1689 and 1688 (New Nos.163 and 164
respectively) have been inherited by the
petitioner from his ancestor where he has
made certain constructions and have been
earning rent by leasing out the building to
various tenants which is his only source of
livelihood and by undertaking demolition
respondents have thus unlawfully deprived
the petitioner of his fundamental right under
Article 19(1)(g) of the Constitution of India.
It has, thus, been argued that since it is a case
where constitutional rights of the petitioner
have been infringed by the respondents by
demolishing the construction belonging to
him, hence even under public-law remedy
under Article 226 of the Constitution of India,
the respondents can be held liable to pay
compensation/damages.

5. The petition, however, has been
opposed by the learned counsel representing
the respondents, who have submitted that the
writ petition is highly misconceived for the
reason that even if the assertions made by the
petitioner are assumed to be correct, it will
not be possible for this Court to award
damages/compensation to the petitioner in
exercise of its jurisdiction under Article 226
of the Constitution of India. Submission on
behalf of the respondents, thus, is that the
writ petition is liable to be dismissed at its
threshold.

6.

Considered
the
submissions
advanced by the learned counsel representing
the respective parties.

7. The first and foremost question,
which falls for determination of this Court
in these proceedings, is as to whether for
the prayers made in the writ petition this
Court ought to exercise its jurisdiction,
which necessarily is discretionary, under
Article 226 of the Constitution of India. In
this regard, we find that there are two legal
impediments before the petitioner which
are to be sailed across by him if this
petition is to succeed. The first such
impediment
is
that
any
claim
for
damages/compensation for any damage
caused to the property in question will
necessarily require the Court to investigate
various disputed facts, which, in our
opinion, will not be permissible for the
simple reason that such determination
requires detailed examination of evidence
which can better be made in a civil suit,
which may be tried before a court of
competent civil jurisdiction.

8. The second legal impediment,
which comes in the way of the petitioner
seeking the relief as prayed for in this
petition is that damages/compensation can
be awarded by this Court in exercise of its
jurisdiction under Article 226 of the
Constitution of India only in case some
infringement of public-law right is involved
and found. For mere infringement of
private-law right, public-law remedy under
Article 226 of the Constitution of India is
not available.

9. No doubt, this Court exercises very
wide powers under Article 226 of the
Constitution of India in the matter of
issuing writs, however, there are well
recognized limitations which the Court has
to be conscious of while it is called upon to
exercise its writ jurisdiction. One of the
such limitations, which is rather self
imposed limitation/restriction which needs
to be observed by this Court while
exercising its discretionary powers under
12 All. Balkaran Das Gupta Vs. U.O.I. & Ors.
269
Article 226 of the Constitution of India, is
that it should not enter into an issue which
for its determination requires the parties to
adduce evidence. The disputed question of
facts, thus, are not permissible to be delved
into by this Court while exercising its
jurisdiction under Article 226 of the
Constitution of India for the reason that the
writ petitions are generally decided on the
basis of uncontroverted facts to be deduced
from the affidavits which the parties to a
dispute are called upon to file. It is well
settled that relief under Article 226 of the
Constitution of India is not available for
deciding disputes for which a remedy under
general civil law is available to a party
approaching the Court.

10. If we consider the reliefs as
prayed for in this writ petition on the
aforesaid
well
recognized
principles
evolved
for
exercising
discretionary
jurisdiction under Article 226 of the
Constitution of India quo the facts pleaded
in the writ petition, what we find is that
determination of the issue as to whether
alleged demolition of the building in
question was done by the respondents in
breach of law or not will require
adjudication
of
factual
aspects.
The
petitioner has though made mention in the
writ petition of two khasra plot numbers,
namely, khasra plot no.1689 (New No.163)
and khasra plot no.1688 (New No.164),
however, it has been stated that he
renovated
the
building
and
raised
constructions on khasra plot no.1689 (New
No.163) and leased them out to various
tenants, however, there appears to be some
dispute in relation to area of these two
khasra plot numbers. In the writ petition at
one place, it has been stated by the
petitioner that the petitioner's predecessor
in interest got the land through Ezzaztnama
executed by the erstwhile Zamindar in
respect of 6 Biswa area of khasra plot
no.1689 and also in respect of 6 Biswas out
of total area of 12 Biswas of khasra plot
no.1688, however, at another place, it has
been stated by the petitioner that area of 6
Biswa of khasra plot no.1689 has been
recorded in the name of the predecessor in
interest of the petitioner but area of khasra
plot no.1688 which was 12 Biswas had
been mistakenly recorded as 6 Biswas. It
has also been stated in para 17 of the writ
petition that in khasra plot no.1688 names
of grand father and father of the petitioner
had not been recorded in the revenue
records after consolidation proceedings
were held in the year 1969. Thus, as per the
averments made by the petitioner himself
so far as khasra plot no.1688 (new no.164)
is concerned initially an are of 6 Biswa was
given to the predecessor in interest of the
petitioner through Ezzaztnama by the
Zamindar, however the said land was not
recorded in the revenue records in the name
of
the
predecessor-in-interest
of
the
petitioner
on
completion
of
the
consolidation proceedings held in the year
1969.

11. It is also to be noted that as per the
averments made in the writ petition khasra
plot nos.1689 and 1688 are contiguous to
each
other
and
further,
various
development projects have been carried out
in past in the vicinity of khasra plot
no.1689 including widening of sub railway
track and road adjacent to the railway line
in question. We may also note that as per
the averments made by the petitioner
himself, on enquiry from the opposite
parties he was told that his building was
constructed
on
railway
land.
Thus,
determination of the issue as to where
exactly the building in question is situated
whether on the land belonging to the
petitioner or on the railway land, will
270 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary require leading of the evidence
by both the parties which will not be
permissible in exercise of jurisdiction of
this Court under Article 226 of the
Constitution of India. From the mentioned
facts it is more than clear that the petitioner
by instituting these proceedings calls upon
us to enter into disputed questions of fact,
investigation of which will necessarily
involve leading evidence. Accordingly, on
this count alone, we are unable to persuade
ourselves to entertain this writ petition. It
also appears that there is a dispute between
the petitioner and his brother-respondent
no.7-Prakash Chandra Gupta in respect of
the property as has been admitted in the
writ petition itself and that both these
persons are said to be co-owners of the
property in question.

12. Shri Seth, learned Senior
Advocate
has
relied
upon
various
judgments of Hon'ble Supreme Court and
some High Courts to impress upon the
Court that since it is a case of infringement
of 19 (1)(g) of the Constitution of India as
such even in public-law remedy under
Article 226 of the Constitution of India this
Court can award damages/compensation.
The first judgment cited by the learned
counsel for the petitioner is the case of
Chairman, Railway Board and others vs.
Chandrima Das and others, reported in
(2000) 2 SCC 465. So far as the said case
is concerned, Hon'ble Supreme Court has
held that public-law remedies have to be
extended to the realm of tort and the Court
can award compensation to a person who
suffers personal injuries amounting to
tortious act at the hands of the officers of
the Government, however, Chandrima
Das (supra) was a case where damages
were claimed by instituting the proceedings
under Article 226 of the Constitution of
India where violation of any ordinary right
of a person was not involved but it was
found a case of violation of fundamental
right of a person guaranteed under Article
21 of the Constitution of India as the
compensation was claimed for the victim
who was gang-raped by many including
employees of the Railways in a room at
Yatri Niwas at a Railway Station.

In the facts of the said case, it
was held that damages/compensation can
be
awarded
against
State
or
State
instrumentalies
in
case
violation
of
fundamental rights under Article 21 of the
Constitution of India is established. There
can not be any quarrel so far as the law laid
down in the case of Chandrima Das
(supra) is concerned, where relying upon
the judgment of Hon'ble Supreme Court in
the case of Common Cause, A Registered
Society vs. Union of India, reported in
(1999) 6 SCC 667, it was held that the
High Court has jurisdiction not only to
grant relief to enforce fundamental rights
but also for 'any other purpose' which
would include enforcement of public duties
by public bodies. It has further been held
that essentially under public law, it is the
dispute between the citizen or a group of
citizens on the one hand and the State or
other public bodies on the other, which is
resolved. Hon'ble Supreme Court in the
case of Common Cause (supra) further
held that judicial review of every executive
or administrative action of the State or
other
statutory
or
public
bodies
is
permissible.

13. Hon'ble Supreme Court in cases
relating to custodial death or medical
negligence has observed that compensation
under public law domain may be awarded
but for such exercise of jurisdiction under
Article 226 of the Constitution of India the
party claiming damages or compensation
12 All. Balkaran Das Gupta Vs. U.O.I. & Ors.
271
has to establish violation of fundamental
rights.

14. No doubt, the allegations in this
petition is against the railways authorities,
however,
the
petitioner
has
pleaded
violation of Article 19(1)(g) of the
Constitution of India by stating that he had
tenanted the building in question and he
was earning rent. However, what Article
19(1)(g) of the Constitution of India
guarantees right to practice any profession
or carry out any occupation or trade or any
business. There is no doubt that by renting
the property its owner may gain its
livelihood, however, the same in itself
cannot, in our opinion, amount to any
profession or occupation or trade or
business. In this view, our opinion is that at
the most, if the facts pleaded by the
petitioner are proved, the petitioner may
have some cause of action for breach of
property rights alone. Thus, for breach of
property rights, in our opinion, damages or
compensation, if any, can be awarded by a
court of competent civil jurisdiction on a
suit to be instituted for the said purpose and
not in proceedings under Article 226 of the
Constitution of India which primarily
operates in public-law realm.

15. Shri Seth, learned Senior
Advocate has relied upon yet another
judgment of Hon'ble Supreme Court in the
case of H.S.E.B. and others vs. Ram
Nath and others, reported in (2004) SCC
793.

16. We are afraid, the said judgment
does not come to the rescue of the
petitioner for the simple reason that it was a
case
of
death
of
a
child
where
compensation was awarded, however, the
said judgment also does not discuss the
scope of public-law remedies under

17. Reliance has also been placed by
the learned counsel for the petitioner on a
judgment in the case of State of Mizoram
and others vs. Hrangdawla and another,
reported in (2011) 3 Gauhati Law Reports
444. In the said case it has been held that
public-law remedy serves a different
purpose than private law remedy. It has also
been held that public-law remedy for rights
guaranteed under Article 21 of the
Constitution of India is available to assure
that citizens of this country to live under a
legal system where their rights and interest
are protected. So far as the legal principle
enunciated in the said case of State of
Mizoram
and
others
(supra)
is
concerned, there cannot be any dispute,
however, for invoking public-law remedy
under Article 226 of the Constitution of
India
seeking
relief
of
damages
or
compensation, the person approaching this
Court has to establish infringement of any
of the fundamental rights including those
guaranteed under Article 21 of the
Constitution of India.

18. Shri Seth then relies upon a
judgment of Hon'ble High Court of Kerala
at Ernakulam in the case of State of
Kerala and others vs. Safia, reported in
(2021) SCC Online Ker 3283. In the
aforesaid case of State of Kerala (supra) a
detailed discussion has been made by High
Court of Kerala about the public-law
remedy
vis-a-vis
award
of
compensation/damages.
Hon'ble
High
Court of Kerala in the said case came to the
conclusion that the building in question
was being used for residential purposes and
that for widening of road, the Public Works
Department
there
undertook
certain
demolitions which violated Article 19(1)(e)
i.e. right to reside and live in the building
peacefully.
It
further
came
to
the
conclusion that by undertaking such
272 INDIAN LAW REPORTS ALLAHABAD SERIES
demolition of residential building right to
privacy as recognized by Hon'ble Supreme
Court in the case of K.S. Puttaswamy and
another v. Union of India and others,
reported in (2017) 10 SCC 1 has also been
violated.

19. In the instant case, the building in
question in respect of which demolition by
the petitioner has been alleged in this
petition, as per the own showing of the
petitioner, was rented to Bharat Sevak
Samaj, Weight and Measurement Office,
U.P. Agro Ltd., Consolidation Office, Food
Corporation of India and some Liquor
Shops. Thus, it was not being used for
residential purposes. Further as already
observed above, the matter at hand involves
determination of disputed questions of facts
which does not appear to us to be possible
without the parties leading the evidence.

20. In the aforesaid view, we are of
the opinion that judgment of Hon'ble
Kerala High Court is of no avail to the
petitioner.

21. For the aforesaid reasons, we are
not inclined to entertain this writ petition
which is hereby dismissed.

22.

However,
notwithstanding
dismissal of this writ petition, it will be
open to the petitioner to take recourse to
any other remedy, which may be available
to him under law, including the remedy of
instituting appropriate suit before the court
of competent civil jurisdiction.

23. Costs made easy.
----------
(2022) 12 ILRA 272
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2022
BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Writ C No. 19465 of 1998

Abhiraj Singh ...Petitioner
Versus
The Addl. Commissioner, Agra & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Prakash Chandra

Counsel for the Respondents:
S.C., Sri Pushpendra Singh Yadav, Sri
Rajeev Sharma, Sri V.K. Singh

A. Civil Law - UP Zamindari Abolition and
Land Reform Act, 1950 - Sections 229-B
& 333 - Revision against interlocutory
order
-
Maintainability
-
Held,
correcting/amending
the
mistake
committed by the Court itself is an
interlocutory order and it can be corrected
at any time either suo moto or on the oral
or in writing application of the either party
and against such order no revision would
lie - For maintainability of a revision,
there must be a decision of any suit or
proceeding. Here no suit or proceeding
has been finally decided - The suit under
Section 229 B is still pending and even by
the impugned order it was not decided.
Therefore, the forum to prefer revision
was not available to the petitioner. (Para
17 and 20)
B. Civil Law - UP Zamindari Abolition and
Land Reform Act, 1950 - Sections 229-B
& 333 - Revision before the Commissioner
- Calling of the record by the revisional
court, whether mandatory or directory -
Word 'may' used in S. 333 - Scope -
Prayag Das Agarwal's case discussed - If
the word 'may' is used in relation to an
officer or for Court for respect then it is
imperative rather than mandatory - Held,
there was no occasion to look into the
legality and propriety of the order of the
lower Court and there was no need to