Gujarat High Court
Savjibhai vs Secretary on 1 February, 2010
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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SCA/13653/2008 3/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13653 of 2008
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SAVJIBHAI
PARSHOTTAMBHAI KAGATHARA - Petitioner(s)
Versus
SECRETARY
& 3 - Respondent(s)
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Appearance :
MR
PREMAL S RACHH for Petitioner(s) : 1,
MR. Nikhilesh Shah, AGP for
Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 1 -
4.
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 01/02/2010
ORAL
ORDER
1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order, directing the respondent nos. 1 and 2 to assess the reasonable amount of damages caused to the Agricultural land of the petitioner as well as damages caused to the Well, due to overflowing of the dam water on account of defective design of the check dam and to award the amount of compensation to the petitioner accordingly.
2. It is the case on behalf of the petitioner that due to damage caused to the agricultural land of the petitioner as well as Well on the land bearing survey no. 176/12 situated at Village Nathuvadla, Dist. Jamnagar due to overflowing of dam water on account of defective design of the check dam constructed under Sardar Patel Participatory Irrigation Scheme, petitioner has suffered huge damages, for which the petitioner is entitled to compensation / damages caused to the well as Well as agricultural land of the petitioner.
3. Shri Rachh, learned advocate for the petitioner has vehemently submitted that as such a report dated 24.7.2000 was addressed by the Deputy Executive Engineer, Dhrol, to the Executive Engineer of Irrigation Department of District Panchayat, Jamnagar inter alia, suggesting to carry out the work for lowering of the matikaam and increasing the height of the level of PALA (protection wall) so as to avoid any untoward incident during heavy rainfall. It is submitted that still nothing was done and as such the construction of the dam was not as per the design and was defective from its inception. It is submitted that in view of the above, the dam water entered into the agricultural land of the petitioner bearing survey no. 176/12 and damaged the standing crops, the agricultural land and Well constructed by the petitioner on the land in question. It is submitted that therefore, the petitioner is entitled to damages/ compensation for such damages. Shir Rachh, learned advocate for the petitioner has heavily relied upon the communication dated 29.8.2007 addressed by the Executive Engineer, Sardar Patel Participatory Irrigation Circle, Rajkot to the Section Officer, Narmada Water Resources Department, State of Gujarat by which, according to the petitioner the damage was assessed of Rs. 1.60 lacs. Therefore, it is submitted that at least the petitioner is entitled to the damages / compensation of Rs. 1.60 lacs. By making above submissions, it is requested to allow the present Special Civil Application.
4. Petition is opposed by Shri Shah, learned AGP. An affidavit in reply is filed on behalf of the respondent no. 3. It is specifically denied by the respondent that any damage was caused to the agricultural land as well as Well on the land bearing survey no. 176/12 by overflowing of the water, which according to the petitioner was on account of defective design of the check dam. It is submitted that as such the petitioner had encroached the land in area of approximately 140 sq. mtrs. It is submitted that had there not been encroachment by the petitioner, no overflowing of water could have found enough space (land) to get separated over resulting in to delusion / mitigation of force of water and in turn even the way once again to get diverted towards main water flow of the water of dam i.e. in the direction of flow of dam water and thus setting mixed with the main flow. It is submitted that in other words, the encroachment has obstructed the flow of water and thereby resulting into the increased intensity of the impact of the overflowing water which in turn has resulted into pulling down of the temporary earthbund put up by the petitioner himself and thus causing water flowing within the land of the petitioner. Therefore, it is submitted that the alleged damage caused to the petitioner agricultural land and the Well petitioner himself is responsible. Therefore, it is requested to dismiss the present Special Civil Application.
5. Shri Rachh, learned advocate for the petitioner has relied upon the communication dated 10.12.2009 by the District Inspector Land Records, Jamnagar addressed to the petitioner informing the petitioner that there is no change in the measurement of the land bearing survey No. 176/8 occupied by the petitioner. Therefore, it is submitted that there was no encroachment by the petitioner as alleged.
6. Heard the learned advocates for the respective parties at length. Considering the aforesaid facts and circumstances and the case on behalf of the respective parties, it appears to the Court that petition involves disputed question of fact, which are required to be adjudicated and considered by the Civil Court on leading the appropriate evidence and on appreciation of evidence. It is the case on behalf of the petitioner that petitioner suffered damages caused to the agricultural land of the petitioner having Survey No. 176/12 as well as the Well in the said land due to overflowing of the dam water on account of the defective design of the check dam under the Sardar Patel Participatory Irrigation Scheme and, therefore, he is entitled to damages. On the other hand, it is the specific case on behalf of the respondent that overflowing of the dam water was not on account of the defective design of the check dam but due to the encroachment made by the petitioner which obstructed the way of the natural water. The aforesaid disputed facts are not required to be considered by this Court in exercise of powers under Article 226 of the Constitution of India. If a suit is filed before the Civil Court by the petitioner in respect of their respective claim on appreciation of evidence the aforesaid aspect can be considered.
Now, so far as the reliance placed upon the communication dated 29.8.2007, addressed by Executive Engineer, Sardar Patel Participatory Irrigation Circle, Rajkot to the Section Officer, Narmada Water Resources Department, State of Gujarat in which it is stated that the lost is caused to the extent of Rs. 1.60 lacs towards the damage caused to the Well and others is concerned, it is to be noted that the petitioner claim damages towards loss caused to the agricultural land also and even otherwise mute question is who is responsible for the damages. Only after it is established who was responsible for the overflowing of the dam and damages further question with respect to quantum of damages is required to be considered and the same can be considered only if the suit is filed and evidences are led.
7. In view of the above disputed question of fact, present Special Civil Application is not entertained relegating the petitioner to file substantive suit claiming damages. It is observed that this Court has not expressed anything on merits in favour of either parties and it is ultimately for the Civil Court to pass an appropriate decree in accordance with law and on appreciation of evidence to be led before it. With these, present Special Civil Application is dismissed.
(M.R.SHAH, J.) kaushik Top