HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPA no. 188/2014 CMP no. 294/2014 Date of order: 06.05.2015 M/s [ENTITY] through its proprietor Nissar Ahmad Tramboo, Age 53 years S/o Habibullah Tramboo R/o Gagribal, [ENTITY], Kashmir v. 1. [ENTITY] through Financial Commissioner, Home, Civil Secretariat, Jammu/[ENTITY] 2. [ENTITY] 3. [ENTITY] 4. [ENTITY] 5. [ENTITY]: Hon'ble Mr. Justice [ENTITY], Chief Justice Hon'ble Mr. Justice [ENTITY], Judge Appearing counsel: For the appellant(s) : Mr. [ENTITY], Advocate For the respondent(s) :
[ENTITY], CJ
1. This appeal is filed against the order made in OWP no. 1867/2013 dated 16.10.2014 dismissing the writ petition filed by the appellant.
2. The appellant has filed the writ petition seeking Mandamus against the respondents to pay compensation for the damages caused during the occupation of his hotel by the respondents.
3. The learned Single Judge having noticed the dispute raised in the writ petition regarding liability to pay compensation for damages, dismissed the writ petition holding that the remedy available to the writ petitioner/appellant is to approach the civil court to claim compensation for damages, if any, by leading evidence.
3. It is a well settled proposition of law that the disputed facts cannot be decided in a writ petition and the said issue is no longer res integra. Whether the High Court is entitled to go into the disputed questions of fact in a writ petition filed under [SECTION] of [ACT], is already decided by Hon'ble the Supreme Court in the following decisions:-
(a) In (1976) 1 SCC 292 (Arya Vyasa Sabha and Others v.
The Commissioner of Hindu Charitable and Religious Institutions & Endowments, Hyderabad and Others) the view taken by the High Court that disputed questions of fact are to be left open to be decided before the Civil Court was upheld by the Supreme Court.
(b) In the decision reported in [PRECEDENT] it is held that the disputed questions of fact could not be entertained in the writ proceedings. In paragraph 19, the Supreme Court held as follows:
"19. The question as to whether the workmen concerned had been continuously working for a period of ten years so as to enable them to derive benefit of the judgment of this Court in R. K. Panda case 1994) 5 SCC 304) was essentially a question of fact. "
In paragraph 22, Hon'ble the Supreme Court further held as follows:
"22. a disputed question of fact normally would not be entertained in a writ proceeding. This aspect of the matter has also been considered by a Constitution Bench of this Court in Steel Authority of India Ltd. v. National Union Waterfront Workers 2001) 7 SCC 1). "
(c) In [PRECEDENT], Hon'ble the Supreme Court held that 'the statement of the appellant or the 5th respondent was correct or not could not ordinarily be tested in writ proceedings and it is well known that in writ petition ordinarily such a disputed question of fact could not be entertained'.
(d) In yet another decision reported in [PRECEDENT], the Supreme Court held as follows:
"Since the facts were seriously disputed by the appellant and no factual finding could be recorded without consideration of evidence adduced by the parties, it was not an appropriate case in which the High Court ought to have exercised its writ jurisdiction. The parties could have approached a civil court of competent jurisdiction to adjudicate the matter."
4. Having heard the learned counsel for the appellant and perusing the material on record, we are unable to find any reason to interfere with the judgment of the Writ Court.
5. The writ appeal is dismissed. However, this order shall not come in the way of the appellant to file appropriate suit for claiming compensation/damages and if any such civil suit is filed the same shall be considered and decided by the Civil Court in accordance with law.
([ENTITY]) ([ENTITY]) Judge Chief Justice [ENTITY]; 06.05.2015 [ENTITY], PS