IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 WA.No. 977 of 2011() -------------------- AGAINST THE JUDGEMENT IN WPC.14453/2011 Dated 17/06/2011 .................... APPELLANT/ PETITIONER ------------------------ DR.SASI ELOOR, ENGINEERING CONTRACTOR, ELOOR HOUSE, KOLENCHERY.P.O., PIN-682 311. BY ADV. SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE SRI.TONY GEORGE KANNANTHANAM SRI.MATHEW K. SIMON RESPONDENTS/ RESPONDENTS -------------------------- 1. KEALA STATE ELECTRICITY BOARD, REPRESENTED BY THE SECRETARY, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM-686 001. 2. THE CHIEF ENGINEER, KEALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM-686 001. 3. THE DY.CHIEF ENGINEER, CIVIL CIRCLE, KEALA STATE ELECTRICITY BOARD, KOTHAMANGALAM-686 666. ADV.P.SANTHALINGAM, SC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. ------------------------------ W.A.No.977 OF 2011 ------------------------------- Dated this the 18th day of July, 2011 J U D G M E N T ~~~~~~~~~~~ C.N.Ramachandran Nair, J. The appellant was awarded a contract for driving tunnel through the mountain by the Electricity Board. There is a provision in the contract whereby the appellant has undertaken to make good the damage caused to buildings in the neighbouring areas. A lot of complaints came from the local residents about the damage to their buildings and Board has without the participation of the appellant constituted a committee which estimated the loss to be paid by the appellant. When the Board proposed to deduct the amounts from the appellant's running bills, the appellant approached this Court challenging the demand. The learned Single Judge declined to interfere with the matter because essentially it is a matter of violation or provisions of a contract between the parties. Eventhough in principle, we feel writ is not the remedy, what we notice in this case is that the appellant who is called upon to W.A.No.977/2011 2 pay the damages was not involved in the process of settlement of liability. The demand raised against the appellant is, therefore, prima facie, untenable as the appellant was not involved in the estimation of loss or damage, if any, caused to the buildings. The learned senior counsel appearing for the appellant contended that blasting takes place only in rock formation far beneath the surface of the ground where the buildings are located and the blasting impact cannot transmit to buildings and so much so, damage, if any, to buildings is not attributable to the blasting. 2. We do not think we should decide this matter though this contention needs to be examined by technical persons. we find force in this contention. We feel the appellant can be called upon to pay the damages determined on a rational basis with his participation and after giving opportunity to establish his case against the claim. We, therefore, dispose of the Writ Appeal by vacating the judgment of the learned Single Judge and direct the K.S.E.B. to withhold all recovery proceedings against the appellant and constitute a technical committee after taking suggestions from claimants from the K.S.E.B. and also from the W.A.No.977/2011 3 appellant. Necessarily, the members of the committee should be experts in the field and if required, they can monitor impact on blasting during blasting itself. The committee has to necessarily consider whether the damage in respect of which compensation claimed by the building owners is attributable to the blasting or whether it is a damage caused after commencement of the work by the petitioner. The Board is directed to constitute the committee at the earliest. If possible, a serving officer from the concerned department of the Central Government can be nominated to chair the committee. The Board is directed to take steps and complete the whole process of estimation of loss after giving opportunity to the appellant with the appellant's participation within a period of three months from today. The appellant should be allowed to continue the work and running bills should be paid to him but by securing enough for payment of compensation. The Writ Appeal is disposed of as above. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) ps