IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 AS.No. 322 of 1997(C) --------------------- OS.117/1989 of SUB COURT, PATHANAMTHITTA .................... APPELLANT: ----------- THANKAMMA KUTTY, W/O. KUTTY, AGED 72, THEKKEVEETTIL PUTHEN VEEDU, KADAMPANADU VILLAGE BY ADV. SRI.K.C.CHARLES RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR PATHANAMTHITTA 2. SUPERINTENDING ENGINEER, KALLADA IRRIGATION PROJECT, KOTTARAKKARA 3. EXECUTIVE ENGINEER, KALLAD AIRRIGATION PROJECT, DIVISION NO. 8, ADOOR 4. THE EXECUTIVE ENGINEER, K.I.P.R.S. DIVISION NO.11, KOTTARAKKARA 5. P.P. POULOSE, GOVT. CONTRACTOR, PAUL CONSTRUCTION COMPANY, PALAMATTIL HOUSE, VALAKOM, MUVATTUPUZHA, NOW RESIDING AT CHENGAMANADU, KOTTARAKKARA REPRESENTED BY POWER OF ATTORNEY HOLDER P.V. VARGHESE, S/O.VARKEY, REVIEW, BUILDING, KURISADI JUNCTION NALANCHIRA P.O. THIRUVANANTHAPURAM 6. T.K. MATHEW, S/O. KUTTY, AGED 52, THEKKEVEETIL HOUSE, KADAMPANAD NORTH, ADOOR TALUK PATHANAMTHITTA DISTRICT -:2:- 7. K.B. BABUKUTTY, S/O. KUTTY, AGED 47 -DO- 8. T.K. LEELAMMA, D/O. THANKAMMA, AGED 44, -DO- 9. T.K. BABY, S/O. KUTTY, AGED 42, -DO- (I ST PLAINTIFF IN THE SUIT DIED AND APPELLANT AND RESPONDENTS 6 TO 9 HEREIN ARE HIS LEGAL HEIRS) ADV. SRI.K.BABU THOMAS K. FOR R5 GOVERNMENT PLEADER SRI. BENNEY THOMAS FOR R1 TO 4 SMT.MARYKUTTY BABU THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON 15/06/2009 DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * A.S. No. 322 of 1997 * * * * * * * * * * * * * * * * * * Dated: 16th day of June 2009 JUDGMENT The additional 2 nd plaintiff who is the widow of the original plaintiff in O.S. 117 of 1989 on the file of the Subordinate Judges Court, Pathanamthitta is the appellant in this appeal. The said suit was originally filed as O.S. 396 of 1985 before the Munsiff's Court, Adoor. The reliefs prayed for was for a perpetual injunction restraining the defendants from blasting rocks using dynamite . The said suit was filed on 19-12-1985. Subsequently on 16-11-1998 the suit was amended as one for damages to the tune of Rs. 50,000/-. However, the claim was limited to Rs. 25,934/- as assessed by the Advocate Commissioner deputed by the trial court. Consequent on the amendment of the plaint and the enhancement of the valuation which exceeded the pecuniary limits of the Munsiff's Court, the plaint was returned for presentation before the Sub Court and was accordingly re- registered as O.S. No. 117 of 1989 on presentation before the Sub Court. 2. The case of the plaintiffs can be summarised as follows:- The plaintiffs are the owners of the plaint schedule property admeasuring 15 cents comprised in survey No. A.S. No. 322 of 1997 -:2:- 112/6-8 of Kadampanad Village with a residential building and a bathroom situated thereon. An extent of 0.15 Ares of property belonging to the plaintiff was acquired by the Government along with other adjoining properties for the construction of the Sasthamcotta Branch Canal of the Kallada Irrigation Project. The said land lies adjoining the plaint schedule property and the building thereon. On account of the excavation of the said canal constructed by the 5 th defendant contractor , damage has been caused to the adjoining land and the building belonging to the plaintiff. The damage was on account of the use of dynamite and high- power explosive substances for blasting rocks. The 5 th defendant was resorting to indiscriminate, extensive and illegal blasting operations of the rocks without providing the statutory safeguards to the adjoining properties. On account of the operation, the whole structure right from the foundation up to the roof of the building in the plaint schedule property got shattered causing extensive damage to the same. Vertical and horizontal cracks developed on all over the walls of the building due to the illegal blasting operation. With every dynamite blasting the cracks widened. The third defendant Executive Engineer, Kallada Irrigation Project Division No. 8 is responsible for the work. Inspite of the request made by the plaintiff no remedial measures were taken by the defendants. On account of the illegal and indiscrimine blasting operations the plaintiff has sustained a loss of about Rs. 50,000/-. Since the Commissioner appointed A.S. No. 322 of 1997 -:3:- in the case has ascertained the loss at Rs. 24,934/- the plaintiffs are limiting the claim to the said extent. Hence the suit for realisation of the said amount and also for injunction restraining the defendants from continuing the blasting operations using dynamite. 3. The suit was resisted by defendants 1 to 5 contending inter alia as follows:- The work of the Sasthamcotta Branch Canal was an Irrigation Project. The execution of which was a critical one. Non-completion of the work in time would cause irreparable loss to the revenue of the State. It is not correct to say that granite was being blasted with high explosive substances. Blasting work was done with utmost care taking all protective measures. Gelatin was used for blasting purposes. One gelatin stick was used for blasting three machine drilled holes so as to minimise the power of explosion. The plaintiff's building was not damaged on account of blasting of rocks for the purpose of the canal. Work of the canal by the side of the plaint schedule property was already over when the suit was instituted. No further blasting was necessary. The blasting work was done observing all statutory formalities . No damage has been caused to the buildings and properties of anybody else. Blasting operations in the canal on the side of the plaint schedule property was necessitated only from 11 metres below the ground level. Hence, the claim of the plaintiff that his building damaged on account of the blasting operations is absolutely false. The suit has been filed A.S. No. 322 of 1997 -:4:- without any bona fides and is liable to be dismissed with costs. 4. The learned subordinate Judge framed three issues for trial. On the side of the plaintiff the son of the original plaintiff was examined as P.W.1. A neighbour was examined as P.W.2. Exts.A1 to A8 were got marked. On the side of the defendatns, the 5 th defendant Contractor was examined as DW1 and Ext.B1 was got marked. Ext.C1 is the report dated 23-2-1986 submitted by the Advocate Commissioner deputed by the Munsiff's Court, Adoor while the suit was pending before that Court. 5. The learned Subordinate Judge, after trial, as per judgment and decree dated 30-3-1996 dismissed the suit, but without costs. Hence, this appeal by the widow of the original plaintiff. The other legal representatives of the original plaintiffs have chosen to figure as respondents in this appeal. 6. I heard Av. Sri. Poly Mathai, the lerned counsel appearing for the appellant, Advocate Sri. Benney Varghese, the learned Government Pleader and Adv. Sri. Babu Thomas, K., the learned counsel appearing for the 5 th defendant Contractor. 7. The learned counsel appearing for the appellant submitted the following :- P.W.1 who is the 4 th plaintiff and son of the original plaintiff has deposed in support of the plaint allegations. He has stated that the foundation of the building which was damaged was made of rocks. According to him also cracks developed on the walls and basement of the building were A.S. No. 322 of 1997 -:5:- on account of the indiscriminate blasting of the rocks. The Advocate Commissioner who submitted Ext.C1 report has stated that the building was 20 years old. At the instance of the plaintiff an expert inspected the property and had valued the damage to the building. After deducting the depreciation and value of the retrievables he has estimated the damage at Rs. 25,934/-. If adequate protective measures had been taken, the plaintiff's building would not have sustained such extensive damage. The claim limited to the value assessed by the expert is quite reasonable . 8. I am afraid that I cannot agree with the above submissions. The suit namely O,.S. 396 of 1985 filed before the Munsiff's Court, Adoor was admittedly instituted one month after the completion of the work. There is nothing in evidence to show that at any time during the basting operations, the plaintiff had raised any objection regarding the manner in which the blasting operations were carried out by the 5 th defendant. The plaintiff maintained that the blasting operations were carried out using dynamite which is a high power explosive. But it is seen that the blasting operations were done using gelatin sticks and one stick was used for blasting three machine drilled holes so as to minimise the power of explosion. Dynamite was not used as an explosive. It is in evidence that the suit was filed on 19-12-1985 after completion of the work of the canal. Still the relief prayed for in the suit was against blasting of rocks using dynamyte. When no dynamite has been used for the blasting of rocks A.S. No. 322 of 1997 -:6:- the prayer made in the suit was misconceived. Moreover, if the plaintiff had sustained damage to the building as alleged by him on account of the blasting operation, one would have expected the plaintiff to come out with a suit for damages right from the inception. 9. The total length of the canal is 25.5. kms. of which an extent of 0.37 square links belonging to the plaintiff alone was acquired for the construction of the canal. The blasting operations on the side of the plaintiff's property was only for a length of 11 metres. Going by the details given in Ext.A8 report of the Expert, the depth of the canal is 18.20 metres. The width of the basement of the canal is 4.4 metres. The width of the canal and its top portion is 23.70 metres. The blasting or rock was undertaken only from a length of 11 metres below the ground level and up to 7.20 metres. The building of the plaintiff was situated more than 10 metres beyond the other edge of the canal. The building was made of laterate stones with lime mortar plastering only. Even according to the Commissioner (Civil) the building appeared to be 25 years old. The said building was admittedly at Thurayoor junction where there were other buildings which were unaffected by the work of the canal. Going by the testimony of the plaintiff himself, there were other buildings nearer to the canal than the plaint schedule building and no cracks had developed on those buildings. It is true that the expert in Ext.A8 report has assessed the damage at Rs. 25,934/- after deducting the depreciation and the value of A.S. No. 322 of 1997 -:7:- retrievable materials in the old building. Except stating certain figures and incorporating certain data at page 2 of the said report the expert has not cared to disclose the source of the figures. Under such circumstances, the plaintiff was bound to examine the expert. But, for reasons best known to the plaintiff, the said expert was not examined and the plaintiff wants the Court to rely on Ext.A8 report to prove the damage caused to the building. In column 9 of Ext.A8 report what the expert has stated is that there was every likelihood of the building developing cracks if the explosive used was dynamite. But there is no evidence indicating that at any point of the blasting operations dynamite is was used. The definite stand of the defendants that the explosive that was used was gelatin sticks has not been countered by any other evidence by the plaintiff. The specific plaint allegation is that his building developed cracks due to the sound waves emanating from the canal site as a result of the blasting of rocks. No direct evidence in this regard has been adduced by the plaintiff. The Commissioner examined as CW1 stated that there were no cracks seen on the independent bath room, latrine and well situated in the property. Similarly, he did not note any cracks on the basement. The plaintiff who was allegedly residing in the building had no complaint before the officials when the work was in progress. Under these circumstances, the stand taken by the defendants that the building collapsed due to the bad construction and old age of the building and not as the proximate result of the blasting A.S. No. 322 of 1997 -:8:- operations was quite probable and has been accepted by the trial Judge. The suit was filed as a speculative measure fully realising that the work of blasting was over, and also realising that no dynamite was used as explosive. Under these circumstances the conclusion reached by the trial judge who had the unique advantage of seeing the witnesses and assessing their credibility does not warrant interference at the hands of this court. This Appeal is accordingly dismissed. However in the circumstances of the case, the parties shall bear their respective costs. Dated this the 16 th day of June 2009. V. RAMKUMAR, (JUDGE) ani. V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * A.S. No. 322 of 1997 * * * * * * * * * * * * * * * * * * Dated: 15 th day of June 2009 JUDGMENT