Madhya Pradesh High Court
Sanjay Chaudhary vs Smt.Dhara Bai & Ors. on 11 January, 2018
THE HIGH COURT OF MADHYA PRADESH
FA-81-1997
(SANJAY CHAUDHARY Vs SMT.DHARA BAI & ORS.)
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Jabalpur, Dated : 11-01-2018
For Appellant : Shri R.K. Sanghi, Advocate
For Respondents No.1 to 6: Shri V.R. Rao, Senior Advocate with Shri
S. Rao, Advocate
For Respondent No.7/State: Shri C.K. Mishra, Government Adv.
For Respondents No.8 & 9: None appears
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JUDGMENT
e ( .01.2018) ad Aggrieved by the judgment and decree dated Pr 02/12/1996 passed by the District Judge, Seoni in Civil Suit No.06-A/1993, the defendants/appellants have filed a hy these appeals separately; but as they involved the common question to be decided in these appeals and to ad avoid repetition, all these appeals are being dealt M analogously by this common judgment.
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2. Before the learned trial Court, the LRs. of Tulsiram filed the civil suit No.06-A/1993 seeking relief of rt compensation to the tune of Rs.1,10,000/- for the ou damages caused to the building and Rs.2,200/- p.m. C as compensation for not being able to use the h building from the date of dismantling and Rs.10,000/- ig p.m. as additional compensation from the date of H incident till the payment of compensation.
3. It is not disputed that the part of the suit house was demolished in the drive for removing the encroachment.
4. That the plaintiff's case in brief before the trial Court was that, the suit house was built in the year 1937, which is a double storey house. Budhulal received this suit house on 06/12/1995, in the family partition. Plaintiff's ancestor Tulsiram purchased this house on 19/01/1971 from Budhulal and till his death, he enjoyed this suit house. In the year 1972, Tulsiram further made certain constructions in the house and built up 3rd and 4th storey and also the staircase. On the ground floor, there were two residential rooms available, in which, the office of Subhash Transport and cement shop of Gupta Traders were functional on rent. Other parts of the house was being used as lodging. In the first floor, there were 7 rooms, in sh which 21 beds were there. In the 2nd floor, there were 9 rooms, in which 19 beds were available.
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5. Shri S.D. Bhale, the Executive Engineer PWD and In- charge of the National Highway, filed an application Pr before the Sub-Divisional Officer, Seoni. On the basis a of which, notice was issued to the plaintiff hy No.3/Praveen Kumar Singh on 26/11/1991, alleging ad that because of the suit house and its constructions, encroachment has been made in the Jabalpur-Nagpur M National Highway, which is creating obstructions in of the Highway road. In the notice, it was directed to submit reply on 27/11/1991 to explain the same. No rt details of encroachment or obstruction as to which ou part of the house is responsible for the obstructions C has not been made clear in the complaint. This notice was received on 25/01/1991. The plaintiff No.3 along h ig with his reply appeared before the SDM on H 27/11/1991. However, as the SDM was not available in the office, he could not present the reply.
6. On 27/11/1991, the respondents along with the police force armed with fire arms, came to remove the so- called encroachment and demolished the part of suit house. For reconstruction of the suit house to status- quo ante, an expenditure of Rs.82,010/- would be incurred. The shops which were demolished caused loss @ Rs.9,400/- p.m. Due to the demolition of the portion of the lodge Rs.1,500/- loss has been incurred per month till the filing of the suit. The total loss calculated is Rs.20,250/-. The defendants No.2, 3 and 4, Pukhraj Maru, IAS, the then Collector, Seoni, Shri Sanjay Chaudhary, the then Superintendent of Police, Seoni and Shri S.D. Bhale, Executive Engineer, PWD, National Highway, Seoni, were responsible for the joint operation. A notice under Section 42 of the Police Act was sent to the defendants and the plaintiffs filed the civil suit for grant of compensation to the tune of Rs.1,10,000/-.
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7. State of Madhya Pradesh (Defendant No.1) and e defendant No.4 submitted separate replies whereas ad defendants No.2 & 3 have filed joint reply. The Pr defendants resisting the plaint's allegations a submitted that, a case was pending in the Court of hy Naib Tehsildar namely case No.3-A/68 of 1975-76 ad with regard to the encroachment, in which Tulsiram deposited the fine amount on 06/02/1981, but he did M not remove the encroachment. Out of the total area of of 1742 sq.ft. of the suit house, only 175 sq.ft. was rt encroached in the highway, therefore, the total ou encroachment was 212 sq.ft.
8. The encroachment removed was of 168.25 sq.ft. Still C the plaintiffs were in illegal occuptation of 43.25 h ig sq.ft. of Government land. The defendants No.2., 3 & H 4, the Collector, the Superintendent of Police and the Executive Engineer were discharging their duties as public officers of the Government and they acted in the drive for removal of encroachment. They had no personal liability in this regard. Defendant No.3, the Superintendent of Police contended that he is responsible for the law and order, therefore, his act was done for maintaining law and order in pursuant to removal of encroachment under Section 248 of the Land Revenue Code which is a legal action.
9. On these averments, the learned trial Court framed issues and after adducing evidence decided the civil suit on 02/12/1996. The civil suit has been decreed compensation to the tune of Rs.30,265/- has been awarded to the plaintiffs with interest @ 5% p.a. with cost. The Court observed in addition to defendant No.1, the State of Madhya Pradesh. Defendants No.2 to 4 were involved in the wrongful act of removing sh the construction and were present on the spot, hence e their actions were also held to be wrongful at ad paragraph 32 of the judgment impugned.
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10. The appellants by filing separate appeals have assailed the judgment impugned. Appellants, Sanjay a Chaudhary, the then Superintendent of Police (FA hy No.81/97), appellant, Pukhraj Maru, the then ad Collector (FA No.82/97) and appellant, S.D. Bhale, M the then Executive Engineer (FA No.136/97) have filed the appeal on the following common grounds of that, the learned trial Court though held that the rt plaintiffs committed encroachment on Nazul land and ou National Highway but fell into serious error of law in granting a decree against the appellant. The plaintiffs C have pleaded that after purchase of the ground which h was constructed in 1937. Subsequently, built and ig constructed two stories above it. The learned trial H Court erred in law not requiring the plaintiffs to prove sanction for construction of the house for the municipality or such public body in existence at that point of time. The plaintiffs and their ancestor without sanction have constructed the same, which is illegal and was, therefore, liable to be removed under the Municipal laws but the learned trial Court failed to appreciate the same.
11. The trial Court has failed to consider that the plaintiff's father was fined Rs.100/- by Naib Tehsildar in revenue case vide order dated 25/03/1980 and was further fined Rs.1/- per day till he removed the encroachment. It is also contended that the construction portion is not as it was in the year 1937, which the trial Court totally overlooked. The trial judge held that the proceedings for removal of the encroachment was at the instance of the State Government was in accordance with law, therefore, no pecuniary liability could be fastened either on the sh appellants or the State Government.
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12. The contention of the appellants are also with regard ad to to the finding that the âplaintiffs had a better Pr title over the Government land against the Governmentâ is completely wrong and the learned a trial Judge had fell into error in holding the same.
hy The encroachment as contemplated under Section ad 133 of Cr.P.C. was to be removed, therefore, after the earlier order of encroachment by the Naib Tehsildar, M no notice was required to be given to the plaintiffs of and it was required to remove the encroachment. The Municipal authority has not been pleaded as a party, rt therefore, the civil suit is bad for non-joinder of the ou necessary party.
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13. Appellant/Sanjay Chaudhary has separately pleaded h that he was the Superintendent of Police and, ig therefore, was responsible for maintaining the law H and order situation. He was present in the spot in the capacity as Superintendent of Police, therefore, he was maintaining law and order. He had no say on the removal of encroachment except to see that law and order situation.
14. The encroachment by the plaintiffs was contrary to law which resulted obstruction of the highway. The trial Court failed to appreciate the same and held that this resulted in causing damages to the plaintiffs. There was a drive to remove the encroachment on the Government lands in all over the State. The plaintiffs failed to prove that there was no encroachment. The plaintiffs also concealed the fact that earlier encroachment case was initiated against their predecessor and there was no conspiracy hatched by respondents No.2 & 4. The trial Court's conclusion is without a logical end. No cogent reason has been given for the same.
15. The map produced by the plaintiffs is unnecessary sh map which do not have any authenticity. The e plaintiffs deliberately concealed the sanctioned map ad and annexed the registered sale deed. The trial Court Pr failed to notice the false claims made in Ex.P/21. The measurement of the 3rd floor of the suit house do not a hy match with the diagram of the 3rd floor appearing in ad Ex.P/21. Revenue Inspector has not been examined by the plaintiffs. The judgment pronounced by the M trial Court has been influenced by irrelevant of considerations rather than the facts on record and the law applicable. The trial Court fell into serious rt error of law in decreeing the suit against the ou appellants.
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16. The appellant/State (First Appeal No.118/97) has raised different pleas, which are mainly as follows, h ig the trial Court fell into error grossly in holding that H the plaintiffs were encroachers only in respect of 88.75 sq.ft. of land. The Court ought to have appreciated that the plaintiffs have to succeeds on their own strength and not at the cost of the weakness of the defendants. The learned trial Court erroneously held that the burden to prove the fact that the plaintiffs were not encroachers were on them, which they have failed to discharge. It is also contended that finding recorded by the trial Judge that the suit house was not demolished in accordance with the law is perverse. The impugned judgment and decree is patently erroneous and illegal. The learned trial Court grossly erred in fastening the liability on the State and the appellants. The encroachment was removed by the SDO National Highway Act, therefore, the Collector, Pukhraj Maru and Superintendent of Police, Sanjay Chaudhary were present on the spot in order to ensure law and order position, therefore, they could not have been held liable for payment on account of damages. It is also sh contended that the power of removal of the e encroachment on the National Highway was ad delegated to the SDO. Even assuming that the Pr proceedings prescribed under the law was not followed for demolition of the suit house, the SDO of a National Highways was responsible for the same. The hy trial Court grossly erred in fastening the liability on ad the appellant/State.
17. C o u n s e l f o r t h e a p p e l l a n t a n d c o u n s e l f o r M respondents No.1 to 6 are heard.
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18. The trial Court while deciding issue No.1(a) has opined that deeming it to be encroachment, the same rt was removed by the respondents, whereas the house ou in question was in possession of the plaintiffs and C their ancestors and earlier owners. It is also held, in h deciding issue No.1(b), that the plaintiffs have failed ig to prove that the plaintiffs, their ancestors and the H erstwhile owners have never encroached the Government land, for the reason that they have not demarcated the land nor have measured the suit house. It indicate that the plaintiffs have failed to prove that the house in question is not constructed in the Government land or the highways which was the primary onus of the plaintiffs to prove.
19. The finding of issue No.1(a) and 1(b) demonstrate that the plaintiffs have not established a clear cut case of no encroachment. Had there been, demolition without encroachment, the plaintiffs could be compensated but so far as, the plaintiffs are concerned, their ancestor was convicted in an encroachment case by the Naib Tehsildar and imposed penalty and also fine of Rs.1/- for everyday, till the removal of the encroachment. This fact was suppressed by the plaintiffs. The order dated 25/03/1980, passed in the Revenue Case No.3-A/68 of 1975-76 is a public document which cannot be sh overlooked. Tulsiram, the ancestor of the plaintiff did e not remove the encroachment. Subsequently, the ad plaintiffs have also failed to remove the Pr encroachment. In view of this matter, the plaintiff's encroachment of the land and subsequent removal a does not seem to be illegal or perverse. Ex.D/1, is the hy copy of the order dated 25/03/1980 filed by the ad defendants. Tulsiram also deposited the fine of Rs.100/- on 28/02/1981, which is an admission of the M encroachment.
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20. The notice earlier sent to Tulsiram is Ex.D/2 & Ex.D/3. From the record, it does not show that rt Tulsiram or his successor have ever challenged the ou said order Ex.D/1 before any superior Court or forum. C The fact remains that after it was held to be h encroachment, the plaintiffs have never removed the ig same, hence no notice was required to be given. Even H then, notice was given to the plaintiffs before removing the encroachment. Therefore, this do not seem to be a removal of encroachment without due process of law.
21. The findings given by the learned trial Court in deciding issue No.2 also seem to be erroneous. The learned trial Court at Para 32 has mentioned that, there was encroachment or not has not been established even then in presence of the appellants, the removal of encroachment by the authorities of the State, which includes the defendant No.2, Collector, defendant No.3, Superintendent of Police and defendant No.4, Executive Engineer, National Highways, seem to be a wrong action by them. Therefore, they are liable for the compensation.
22. This finding of the learned trial Court offends common sense, for the encroachment by Tulsiram was earlier proved. Tulsiram was ordered to remove the encroachment. He was also imposed fine and sh penalty of Rs.1/- for everyday till he removes the e encroachment. It is not the case of the plaintiffs that ad Tulsiram has removed the encroachment. It is also Pr not the case of the plaintiffs that the encroachment made by Tulsiram in the Government land was a different then the encroachment removed by the hy defendants. In this regard, this Court do not concur ad with the findings of the learned trial Court as regarding the issues No.3(a) and 3(b).
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23. Learned counsel for the appellants has placed of reliance on Manoj Kumar Shrivastava Vs. Arvind Kumar Choubey reported as 2002(1) MPLJ 172, rt in which it is held that, âsuit for damages against ou Administrator of Municipal Corporation for C demolition of plaintiff's Hotel without authority and h without serving proper notice to plaintiff- ig Appellant/Administrator cannot be said to have acted H in his personal capacity shorn of his status as Administrator â Statutory notice under Section 401(2) should have been mandatorily given to appellant/Administrator by respondent/plaintiff- Suit filed without notice was not maintainable and was liable to be dismissedâ.
24. Counsel for the appellant has also placed reliance on Yadav Kumar Vs. Divisional Manager, National Insurance Company Limited and another reported as 2010(10) SCC 341, Punjab State Civil Supplies Corporation Ltd. Vs. Sikander Singh reported as (2006) 3 SCC 736 and M/s. Kasturilal Ralia Ram Jain Vs. State of Uttar Pradesh reported as AIR 1965 SC 1039, the facts of these present cases are completely different, therefore, the above citations do not attract in the present case.
25. In the case of Rajkot Municipal Corporation Vs. Manjulben Jayantilal Nakum & others reported sh as (1997) 9 SCC 552, in which the appellant e contend that the action of the appellants in good faith ad in exercise within the limit of the discretion, Pr therefore, the principal of law and negligence does not apply. In this regard, the Apex Court has held a that, Negligence is failure to use such care as a hy reasonable, prudent and careful person would use, ad under similar circumstances. It is the doing of some act which a person of ordinary prudence would not M have done under similar circumstances or failure to of do what a person of ordinary prudence would have done under similar circumstances. Negligence also is rt an omission to do something which a reasonable man, ou guided by those ordinary considerations which C ordinarily regulate human affairs would do, or the h doing of something which a reasonable and prudent ig man would not do. Negligence would include both H acts and omissions involving unreasonable risk of having done harm to another. The breach of duty must cause damage. How much of damage to be compensated by the defendant should be attributed to his willful conduct and how much to his willful negligence or careless conduct or remissness in performance of duty, are all relevant facts to be considered in a given act or omission in adjudging duty of care. The element of carelessness or the breach of duty and whether that duty is towards the plaintiff or a class of persons to which the plaintiff belongs are important components in tort of negligence. Negligence would therefore, mean careless conduct in commission or omission of an act, whereby another to whom the plaintiff owned duty of care has suffered damage. The duty of care is crucial in understanding the nature and scope of tort of negligence.
26. The appellants were duty bound to remove the sh encroachment. Hence, their actions cannot be said to e be illegal.
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27. On the basis of the above analysis and the proposition Pr of law, this Court is of the opinion that the plaintiffs failed to establish that they are not encroachers and a the demolition was conducted more than the area hy encroached. The appellants/defendants No.2, 3 & 4 ad have acted bonafide and in discharge of their public M duty, therefore, they cannot be fastened with any liability for compensation.
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28. As a result of the above discussion, this appeal is allowed. The judgment impugned is set aside.
rt ou C (SUSHIL KUMAR PALO) JUDGE h ig Digitally signed by Rashmi H Ronald Victor Date: 2018.03.09 02:59:33
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