IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 306 of 2000 Judgment Reserved on 03.11.2009 Date of Decision:- _13.11.2009 __________________________________________________________ Smt. Vidya Devi & others ….Appellants. Versus State of H.P. ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether ap proved for reporting?1 No. __________________________________________________________ For the Appellants: Shri K.D. Sood, Advocate. For the Respondent: Ms. Ruma Kaushik, Addl. A.G. __________________________________________________________ Dev Darshan Sud, J. The appellants are the plaintiffs who instituted the suit (out of which this appeal arises) against the judgment and decree of the learned District Judge dismissing the claim for a decree in the sum of Rs. 4,20,000/- for the alleged losses suffered by them on account of purported act of negligence of the defendant’s causing damage to the building and business of the plaintiffs. The plaintiffs S/Shri Beli Ram (since dead) and Lachmi Singh pleaded that they are the owners in possession of one half of the suit land as described in the plaint. Shri Ram Singh, son of Shri Adam, also resident of village Deha, Tehsil Theog is owner of the other half share but has not been joined as a plaintiff as no claim is made on his behalf or against him. 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 In a nutshell, the case of the plaintiffs is that about 20 years ago, they constructed a two storeyed building made of masonary bricks and stones at a cost of Rs. 5 lacs. In the ground floor of the building they constructed shops and the upper storey was used as their residence. A mule path is existed opposite the building of the plaintiffs. This was converted into a jeepable road by the respondent-State which did not take adequate care to ensure protection of the plaintiffs’ property and without exercising the normal diligence required or using the normal accepted engineering/technical skills, the road was widened in a manner which endangered the building of the plaintiffs. Trees were felled indiscriminately and the soil starta became loose. The hillside was cut in a haphazard and unscientific manner. They took up the matter with Gram Panchayat and other authorities and complained against the acts of the defendants, but of no avail. It is pleaded that indiscriminate use of machinery and felling of trees disturbed the strata of the soil and resultantly in the rainy season of 1995 there were massive landslides damaging the property of the plaintiffs and rendering it unfit for any purpose. The plaintiffs claimed business losses. In support of their claim, plaintiff No. 1 appeared as PW1 proving the ownership as also existence of a mule path which was later on widened. He reaffirmed the allegations made in the plaint that work of the road was carried out in an indiscriminate and unscientific manner by use of machinery and wanton felling of trees, damaging the strata of the hill side which collapsed during heavy rains in 1995. He says that there is no way of redeeming the building except by reconstructing it as a whole. Documents i.e. representation Ext.P8 made by him to the PWD Minister and certificate of Gram Panchayat Ext.P9 have been proved on record of the case. PW2 Subhash Chand is the photographer who has proved on record photographs of the damaged building viz. Ext.PA/1 to Ext.PA/20 showing the extent of damage caused to the building. PW3 Devi Saran, Vice President of 3 Gram Panchayat, states in his evidence that he went to the spot, inspected the damage and that Ext.P9 certificate was issued by the Panchayat after verifying the situation on the spot. He says that damage to the building has taken place because of the widening of the mule road. Ext.P10 is FIR lodged by the plaintiffs. PW5 Rai Singh has also tried to prove the case of the plaintiffs-appellants. PW6 R.B. Saxena has proved on record the plan of the house Ext.PW6/A and stated that according to the inspection carried out by him the building has become inhabitable and that it would require extensive reconstruction, which according to the assessment Ext.PW6/B and Ext.PW6/C, works out to Rs. 4,01,700/- at the PWD rates. He admits in cross examination that he did not associate any authority or officer of the PWD when he visited the spot. PW7 is Parveen Kumar who again tried to prove the case of the plaintiffs. However, in his cross- examination, he admits that he does not know how the danga (supporting breast wall) of the appellants building collapsed; whether it was due to heavy rains or because the appellants had not used proper material. He admits that building of the appellants was damaged due to excess rains. The defendants have rebutted the claim of the plaintiffs by producing DW1 R.S. Chandel, Junior Engineer, HPPWD (B&R) Division, Chopal who says that the jeepable road is maintained by them. He says that the rain water and other water is being discharged from the building of the plaintiffs on to the road of the defendants. He is categorical in his statement when he states that structure constructed by the plaintiffs is made of “local material” and not of cement and concrete. DW2 Laiq Ram, Works inspector, HPPWD Sub Division Sainj states that breast wall was constructed in 1989 for the protection of jeepable road. DW3 is one Shri B.L. Sharma, who also states about the condition of the road. This is the entire evidence. 4 Ext.P9 which was the certificate issued by the Panchayat states:- “Parmaan Patra Parmanit kiya jata hai ki Shri Beli Ram putar Sw. Shri Aagtu Ram Gram Deha, P.O. Deha, Tehsil Theog, District Shimla kaa sathai niwasi hai. Yeh dinak 4.9.95 se 8.9.95 tak ki bhari varsha ke karan inke makan va dukan ke agge bhari phalad aane va retaining diwar gir jane ke karan inke makan kaa kafi bhag gir chukka hai aur vaki girne wala hai, jiske karan inhe apni jaan va maal kee raksha ke liye ise khali karma pada hai, mauka par halqua patwari va kanungo sahib aakar iska nirikshan kar diay hai. Atah sifarish kee jati hai ki avedak ko shighar ati uchit sahayata pardan karne kee kirpa karen. Sd/- Up-Pardhan Gram Panchayat Ghodna Teh. Theog, Zila Shimla (HP)” The learned trial Court on conspectus of the entire evidence, held that plaintiffs-appellants have been unable to establish the fact as to whether the damage was caused by widening of the road as alleged. From the evidence on record, I cannot find anything which can directly relate to the acts of the defendants in causing the damage to the house/property of the appellants- plaintiffs and attributable to the defendants. Infact, if the entire evidence on record is considered, there is nothing on record to show that when this construction activity was going on it endangered/threatened the existence of the property of the appellants. Ext.P9 itself is very clear that the damage which has been caused is because of the heavy rains and cannot be attributed to the acts of the defendants or acts of omissions/commissions on the part of the defendants. When read with other evidence on record, no fault can be apportioned on the defendants. The evidence on record is overwhelming to show that there were heavy rains in 1995 due to which there were land slides. This can only be attributed to an act of God and not man made disaster. Of course, if there was any 5 evidence on record to show that the acts committed by the defendants were in any manner responsible for the land slides or that safety measures which could be taken for protection on the hill side have been ignored by the defendants, they could have been made liable in tort. In the absence of evidence on record, I do not find any reason to differ with the findings of the fact as arrived at by the learned trial Court. This appeal is accordingly dismissed. There shall be no order as to costs. November 13,2009 (Dev Darshan Sud) (ms) Judge