Himachal Pradesh High Court
Anant Ram vs State Of H.P. & Ors on 8 November, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RFA No. 147 of 2008
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Date of decision: 8th November, 2019.
Anant Ram .......Appellant/Plaintif
Versus
State of H.P. & Ors. ......Respondents/Defendants.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1. No.
For the Appellant : Mr. Lalit K. Sharma, Advocate.
For the Respondents : Mr. Vinod Thakur, Addl. A.G. with Mr.
Bhupinder Thakur, Ms. Svaneel Jaswal,
Dy. A.Gs. and Mr. Ram Lal Thakur,
Asstt. A.G.
Tarlok Singh Chauhan, Judge (Oral)
Plaintif is the appellant, who aggrieved by the judgment and decree passed by the learned District Judge, Solan in Civil Suit No.3-S/1 of 2006, has filed the instant appeal.
The parties shall be referred to as the 'plaintif' and the 'defendants'.
2. The plaintif filed a suit for recovery of Rs.5,50,000/-
on account of damages caused to his land measuring about 5 bighas 11 biswas, situated in Mauja Bhuira, Pargana Pashgoan, 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 11/11/2019 20:24:23 :::HCHP 2 Tehsil Kandaghat, District Solan (for short 'The suit land'), while constructing the road known as Ashwani Khad to Bhalighat in the .
month of January, 2006. It was alleged that the plaintif is the owner of the suit land had planted fruit bearing trees in a portion thereof and in other portion he had grown cash crop such as tomatoes, green peas, mustard (sarson), green coriander, onion, capsicum etc. The suit land was being irrigated through a Kuhal/water channel. Defendants No. 2 and 3 acting under defendant No. 1 and through a Contractor-defendant No. 4 at behest of the official respondents started constructing the aforesaid road under the Prime Minister Sadak Yojna but did not take proper care on the spot and had thrown huge debris/loose soil on the land of the plaintif thereby causing extensive damage to the land as also to the standing crop. The defendants had also damaged the Kuhal/water channel existing on the suit land and the blasting done at the spot to construct the road also damaged the sheet roof of the house of the plaintif. The plaintif objected but to no avail and, therefore, was constrained to get the loss assessed from an expert, who in his report came to the conclusion that the damage of Rs.5,00,000/- has been caused.
The plaintif further claimed compensation of Rs.2,00,000/-
towards the amount of mental torture and physical harassment ::: Downloaded on - 11/11/2019 20:24:23 :::HCHP 3 and humiliation at the hands of the defendants, but restricted his claim to the tune of Rs.50,000/-.
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3. The claim of the plaintif was resisted by the official defendants No. 1 to 3 by filing written statement wherein it was admitted that a contract of construction of road from Ashwani Khad to Bhalighat was given to defendant No. 4 and denied causing of damage to the suit land by throwing debris or carrying out huge blasting. It was alleged that the plaintif had never informed the defendants about any damage caused to his property and if at all any damage has been caused, it was for the contractor to make good of the damage.
4. Defendant No. 4 also contested the suit by filing separate written statement wherein the claim of the plaintif was totally denied. It was also denied that defendants had thrown the debris or had carried out blasting or caused damage to the Kuhal/water channel. However, it was admitted that some stones fell down during the construction on small portion of the land but the same were lifted by the replying defendant through labourers on the spot. It was alleged that the plaintif had pressurized and compelled the replying defendant to lift the stones and had demanded the construction of link road to his house and on such demand replying defendant, in fact, had constructed a link road to the house of the plaintif, which is more than 200 meter from ::: Downloaded on - 11/11/2019 20:24:23 :::HCHP 4 the said road. It was further averred that some portion of the barren land of the plaintif was, in fact, got converted into a big .
filed by cutting and levelling with a excavator on the demand of the plaintif. The replying defendant had also on the request of the plaintif provided pipes worth Rs. 35,000/- for him for his personal use.
5. In replication, the plaintif reiterated his stand as taken in the plaint and refuted the averments of the defendants.
On 28.3.2007, learned Trial Court framed the following issues:-
1. Whether the construction of road has caused damage to the cultivable land and fruit trees land and the plaintiff is entitled to any amount as claimed?OPP
2. Whether the suit is not maintainable in the present form?
OPD
3. Whether the plaintiff has no locus standi to file the present suit?OPD
4. Whether the plaintiff is estopped by his own act, conduct and acquiescences etc. to file the suit?OPD
5. Whether the plaintiff has no cause of action?OPD
6. Whether the suit is bad for non-joinder of necessary parties?OPD
7. Whether the notice issued is not in consonance with the mandatory provisions of law, if so its effect?OPD
8. Relief.
6. After recording evidence and evaluating the same, the suit filed by the plaintif was decreed for a sum of Rs.20,000/-
::: Downloaded on - 11/11/2019 20:24:23 :::HCHP 5with proportionate cost against all the defendants jointly and severally.
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7. Aggrieved by the judgment and decree passed by the learned Trial Court, the plaintif has filed the instant appeal on the ground that the findings recorded by the learned Trial Court are perverse, therefore, deserve to be set aside.
I have heard learned counsel for the parties and have gone through the record of the case.
8. In order to prove the damage caused, the plaintif has examined PW-1, who produced on record his report Ext.
PW1/A wherein he assessed the damage caused to the plaintif to the tune of Rs.1,80,000/- and further a sum of Rs. 75,000/- was for removing the debris and repairing the house. The irrigation channel, in respect of which a damage has been claimed was prepared by the Block Development Department, however, this report admittedly has been prepared in absence of the defendant i.e. behind the back, therefore, much credence cannot be lent to such report.
9. No doubt, the petitioner did examine the Agriculture Officer to establish the loss caused to the standing crop but such loss has been assessed in terms of the price which the crop could have fetched on being sold in the market, without taking into consideration the cost of production.
::: Downloaded on - 11/11/2019 20:24:23 :::HCHP 610. In the entire evidence led by the plaintif, he has failed to prove that there is any kind of fruit bearing trees or fuel .
trees standing over the land in dispute. Therefore, in such circumstances, the learned Trial Court committed no error in awarding Rs.20,000/- towards damages to the plaintif as the defendants had in their written statements given sufficient indication that some debris had fallen over the land of the plaintif but would claim that the same were removed.
11. During the pendency of this appeal, the plaintif filed an application for leading additional evidence, wherein, he sought to prove on record technical report prepared by the Shoolini Planner & Designer to establish that debris/heavy boulders had been thrown on the land of the plaintif, the cost of removal whereof would work out about Rs.76,000/-. However, admittedly, even this report was prepared behind the back of the defendants/respondents and was, therefore, kept out of consideration.
12. However, this Court in order to be fair, aforded another opportunity to the plaintif to establish his case and appointed the Tehsildar, Solan, as Local Commissioner to report as to whether any debris on account of construction of road from Ashwani Khad to Bhalighat, was lying on the spot and if so what would be the tentative cost of removing such debris and whether ::: Downloaded on - 11/11/2019 20:24:23 :::HCHP 7 any link road was constructed to the house of the appellant at the relevant time by the contractor. The Tehsildar was directed to .
associate both the parties and record statements of the witnesses, if so required.
13. In compliance to the aforesaid directions, the Tehsildar, Solan, who otherwise was a neutral person and had nothing to do with the claim of the either parties, visited the spot and submitted his reproduced as under:-
r to
report. The relevant portion
Site was inspected on 3.6.2019, all the stakeholders Department of whereof HPPWD, Contractor Sh. Mohan Singh, Sh. Anant Ram, Kanungo Sadhupul, Patwari Halqua Chohra and local perople were present at Bhuira village. Perusal of the revenue record reveals that Sh.
Anant Ram is the owner of land comprised in Khasra No. 481/288 measuring 1-4 Bigha, Khasra No. 289 measuring 5-11 Bigha, 514/477/287 (Charand) measuring 4-16 Bigha and 484/290 measuring 5-10 bigha situated in Mauza Bhuira, Tehsil Kandaghat, District Solan. During the inspection I found that debris is still lying in the land of Sh. Anant Ram. After the site inspection Khasra no. wise stagging of debris is as under:-
1. Khasra No. 481/288 Approximately 1 Biswa covered debris.
2. Khasra No. 514/477/287 3 Biswa covered debris
3. Khasra No. 287 1 Biswa covered debris
4. Khasra No. 484/290 There is no debris found at site.
During the inspection statement of Sh. Anant Ram, local people as well as HPPWD officer and contractor was recorded and enclosed ::: Downloaded on - 11/11/2019 20:24:23 :::HCHP 8 with the report. In the statement Sh. Anant Ram as well as local people also admitted that there is debris lying in the land of the .
Anant Ram. As far as tentative cost of removing debris is concerned, it is very difficult to estimate how much amount will cost for the purpose expert advice may be taken who may give the approximate cost of removing the debris.
A road constructed from main road Ashwani Khad to Bhalighat which goes towards the Anant Ram house leading to the khad approximately distance of 200 metre wide 2.50 metre. The road passes through the boundary wall of the Anant Ram land and leading to the Khad. The Anant Ram house is approximately 45 meter away from this road that means there is no direct link to the Anant Ram house.
It is pertinent to mention here that another kuchha road is constructed on the spot in some portion of Anant Ram land khasra No. 514/477/287 approximately distance of 150 metre width 2.50 metre leading to house of Shri Madan Singh, Babu Ram & others. The above mention is lay between the Ashwani Khad to Bhalighat road and Anant Ram land khasra No. 481/288, 289 and 484/290.
Now it is very difficult to find that whether the debris dumped on Anant Ram land is done by the contractor of Ashwani Khad to Bhalighat Road or the Kuchha road constructed by Sh. Madan Singh, Babu Ram & others in 2-3 years back for his personal use. Conclusion:-
A kuchha road is constructed on the spot which is not linked to the house of Sh. Anant Ram and debris are still lying on Khasra NO. 481/288, 514/477/287 and 287 situated in mauza Bhuira, Tehsil Kandaghat, Distt. Solan. Report is submitted for perusal and necessary action please.::: Downloaded on - 11/11/2019 20:24:23 :::HCHP 9
14. Admittedly, the Tehsildar, Solan is an independent person as he had no axe to grind in the matter and as per his .
report, it could not be concluded that the debris dumped on the land was on account of work done by the contractor/defendant No. 4 on construction of road from Ashwani Khad to Bhalighat or the kuchha road constructed by Shri Madan Singh, Babu Ram and others for their personal use.
15. Since, there is no material, available on record to justify the claim of the plaintif, even after the appointment of the Local Commissioner, therefore, this Court sees no reason to interfere with the judgment and decree passed by the learned Trial Court. Consequently, the appeal being devoid of any merit is dismissed, leaving the parties to bear their own costs.
8th November, 2019. (Tarlok Singh Chauhan) (sanjeev) Judge ::: Downloaded on - 11/11/2019 20:24:23 :::HCHP