IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 173 of 2004 with RFA No.387 of 2004. Date of Decision: 5th October, 2010. _______________________________________________________ 1. RFA No.173 of 2004. Gurdev Singh ….Appellant. Versus State of Himachal Pradesh and others ..Respondents. __________________________________________________________ For the appellant : Mr. T.S. Chauhan, Advocate. For the respondents : Mr. A.K. Bansal, Additional Advocate General. __________________________________________________________ 2. RFA No.387 of 2004. State of Himachal Pradesh and others .. Appellants. Versus Gurdev Singh .. Respondent For the appellants : Mr. A.K. B ansal, Additional Advocate General. For the respondent : Mr. T.S. Chauhan, Advocate. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. ____________________________________________________ SURINDER SINGH, J (Oral). Both the appeals aforesaid are arising out of the same judgment and decree passed by the learned District Whether reporters of the Local papers are allowed to see the judgment? - 2 - Judge, in Civil Suit No.9 of 2000, decided on 15.3.2004, hence taken up together for decision. 2. Appellant Gurdev Singh in RFA No.173 of 2004, hereinafter to be referred as “the plaintiff”, filed a suit for recovery of ` 5,00,000/- after serving the notice under Section 80 C.P.C. against the State of H.P. impleading the Secretary, HP Public Works Department and the Superintending Engineer, HP PWD, hereinafter to be referred as “the defendants”, pleading that suit khasra bearing No.18, measuring 2 biswas, situated in village Muhain, abutting National Highway (NH) 21 near Ghambrola bridge was owned and possessed by him. He had constructed a hotel/Dhabha on the aforesaid piece of land to earn his livelihood. On 15.3.1998 bridge aforesaid had collapsed, which resulted into the blockade of the traffic on both sides resulting into a complete jam. The defendants through the Officers/officials of the P.W.D. requested the plaintiff to allow them to restore the traffic by constructing an approach road to Ghambrola Khad through the above land of the plaintiff and assured him to pay an adequate compensation and on 17.3.1998 his structure was uprooted, which according to the plaintiff was of the value of `2,50,523/-, as assessed by PW3 Sanjay Kumar as against the assessment of the Assistant Engineer of the P.W.D. to the tune of `2,22,086/-, but later its - 3 - value was further reduced to `1,08,875/-, though the reduced amount was paid to him. 3. The plaintiff further claimed `4,99,834/- alongwith interest at the rate of 18% per annum, i.e., `1,41,678/- on account of balance amount, `1,08,000/- on account of business loss, solatium to the tune of `1,50,156/- and `1,00,000/- on account of cost of his land. 4. The suit was resisted and contested by the defendants by filing their written statement and disputed the maintainability of the suit and also took up the plea of limitation, viz-a-viz no cause of action and estoppel by way of preliminary objections. On merits, denied having served notice under Section 80 C.P.C., but admitted that on 15.3.1998 Ghambrola bridge had collapsed with the result NH 21 got blocked. Thus with a view to restore the traffic the plaintiff was approached to provide suit khasra for use as link road. The structure was demolished and temporary link road was provided and the traffic was restored. The amount of `1,08,875/- for the structure was paid to the plaintiff on 4.5.1998 as evaluated by the Department. A Pucca bridge was constructed about 100 meters down the land of the plaintiff. Thus he was not entitled for the business loss or any other payment as the ownership and possession of the suit khasra remained with the plaintiff for his free use. - 4 - 5. On the pleadings of the parties, the learned trial Court framed the following issues: 1. Whether the plaintiff is entitled to a sum of`5 lacs from the defendants on account of costs of his structure, i.e., shop and Dhaba including cost of land, which was situated near Ghambrola bridge by way of damages? OPP. 2. Whether the plaintiff is also entitled to solatium, loss of business and future interest, if so, to what extent and amount? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether the plaintiff does not have any cause of action, as alleged? OPD. 5. Whether the suit is barred by limitation? OPD. 6. Whether no valid notice under Section 80 C.P.C. was served on the defendants before filing the suit? OPD. 7. Whether the plaintiff is estopped by his act, conduct and acquiescence? OPD. 8. Relief. 6. After the complete trial the learned trial Court answered issues No.2 to 7 in negative and issue No.1 in affirmative, thus decreed the suit in favour of the plaintiff for the recovery of `1,13,211/- and against the defendants with future interest at the rate of 9% per annum from the date of institution of the suit till its realization, as per operative portion of the judgment in addition to the amount of `1,08,875/- already paid to him. 7. The plaintiff felt dissatisfied with the impugned judgment and decree, as such filed the instant appeal (RFA No.173 of 2004) claiming the solatium and business loss and - 5 - value of the land, which was declined by the learned trial Court. 8. The defendants felt aggrieved and they filed RFA No.387 of 2004 on the ground that the learned trial Court returned the findings on conjectures and surmises and further that the learned trial Court did not appreciate the statements of their witnesses and ignoring the final assessment Ex.DW1/A which was approved by the Superintending Engineer, the competent authority. 9. I have heard learned Counsel for the parties and have thoughtfully and carefully gone through the evidence on record. 10. From the rival contentions the following point arises for determination: Whether the impugned judgment and decree passed by the learned District Judge is legally and factually sustainable? 11. After going through the record and while appreciating the arguments advanced by the learned Counsel for the parties, my answer would be in affirmative. 12. It is an admitted fact that on 15.3.1998 on NH21 Ghambrola bridge had collapsed thereby blocking the traffic on both sides. Sauit Khasra number measuring 2 biswas was adjacent to the said bridge over which the plaintiff was running a Dhabha/hotel. It also stands - 6 - established that the defendants had approached the plaintiff for dismantling the structure to provide link through the Khad to the main highway on payment of compensation. Though the plaintiff had stated that he was assured to be paid `5,00,000/-, but there is no cogent evidence to substantiate this fact. Although, it is proved on record that an amount of `1,08,875/- was paid by the defendants to the plaintiff as against the estimate of `2,22,806/- prepared by the Executive Engineer (Ext.DW1/A). Plaintiff stated that he was neither given alternative piece of land by the defendants nor paid anything for the business loss. He had served the defendants with the notice under Section 80 of the C.P.C., copy of which is Ext.PW1/A with the postal receipt Ext.PW1/B. He further placed on record the photographs Exts.PW1/D to 1/K in his evidence and claimed `1,41,678/- as a balance amount with respect to the structure and further an amount of `1,08,000/- on account of business loss plus solatium etc., as stated above. 13. In cross-examination he admitted that it was a temporary link road provided by the defendants through his land after dismantling his structure, in the meantime a temporary ‘belly bridge’ was raised to restore the traffic and later at a distance of about 100 meters down below it a metalled bridge was constructed by the defendants. Although, he denied that after construction of the Pucca - 7 - bridge 100 meters below from his land the prospects of earning the livelihood had diminished, but according to him, it is being used as an approach road to the Khad. He also stated that he would have no objection in case his above land is acquired by the PWD. He proved the estimate Ext.PW2/A of the structure to the tune of `2,22,086/- with its details. It is signed by the Junior Engineer and duly authenticated by the Assistant Engineer. 14. PW3 Sanjay Kumar is a land valuer and assessed the value of the structure to the tune of `2,50,523/-, as per his report Ext.PW3/A. The statement of PW4 Dila Ram that he had purchased one Biswa of land about six kilometers away from the land in question for `40,000/- vide registered deed Ext.PW4/A is of no consequence, whereas PW5 Raj Kumar Verma, Executive Engineer of the National Highway, testified that the structure of the plaintiff over the suit khasra had to be dismantled in order to provide the link road on the National Highway to restore the traffic and the estimate Exts.PW2/A and 2/B were sent to the higher authorities for approval. 15. The defendants examined DW1 Lal Singh, Planning Assistant. He stated that the estimate was finally approved by the Superintending Engineer, copy whereof was placed on record as Ext.DW1/A and the value of the structure was worked out lesser than the amount submitted - 8 - because the quantity of the structure was worked out on the higher side. 16. The Superintending Engineer who finally approved the estimate for lesser amount was not examined, as having retired, but was available to the defendants to produce him as a witness to substantiate their case. His evidence in the case was necessary for the reason that DW1 Lal Singh, Planning Assistant admitted that he did not procure the record regarding the deductions, though the measurement tallied with the estimate Ext.PW2/A prepared by the Department. 17. On the critical examination and reappraisal of the evidence aforesaid it is evident that the value of the structure of the plaintiff was `2,22,086/- as stated by PW2 Banku Deen, Surveyor of the PWD and he had assessed its value before its demolition and its measurement was reflected in the measurement-book by the Junior Engineer and it was also approved by the Executive Engineer PW5 Raj Kumar Verma. Later after the demolition of the structure when the estimate was submitted for final approval by the Department, it could not have been reduced without cogent reasons. I feel that it was incumbent upon the defendants to have finalized the estimate before its demolition or immediately thereafter. The evaluation made by PW3 Sanjay Kumar cannot also be relied upon for the - 9 - reason that the measurement and the evaluation prepared by Banku Deen aforesaid was reasonable and duly certified by Junior Engineer and Assistant Engineer as aforesaid, whereas the evaluation prepared by PW3 aforesaid was made in absence of the defendants or their Officers. Therefore, in my considered opinion, the evaluation of the structure of `2,22,086 /-, out of which `1,08,875/- was paid, was correct. Therefore, the plaintiff is rightly held entitled for the balance amount of `1,13,211/-. 18. Further, I find that plaintiff is also not entitled for the value of two Biswas of land because it remained with him. It was not acquired by the defendants. Therefore, it is his free will to use it in any manner he likes. 19. The bridge in question was constructed by the defendants within three months that too at about 100 meters down from the suit khasra. The potentiality and commercial value of that piece of land had decreased. Therefore, the plaintiff is also not entitled for any business loss, as alleged. 20. There is also no question of paying the solatium because the land in dispute was not acquired. Therefore, the plaintiff is neither entitled for the value of the land, as well as solatium. 21. In conclusion, in my opinion, the learned trial Court rightly held the plaintiff entitled for the balance amount of `1,13,211/- with interest at the rate of 9% per - 10 - annum from the date of institution of the suit till realization. 22. Thus, for the above reasons, the impugned judgment and decree are legally and factually sustainable. The contention of the defendants that their valuation Ext.DW1/A, which was approved by the higher authorities on the lower side should have been granted, is without any basis in absence of non-examination of the Superintending Engineer and also for the reasons that after demolition of the structure it did not lie in their mouth that the value of the land was lesser than it was assessed the earlier by their Officers. As such, both the appeals are without any merit, hence dismissed. Parties are left to bear their own costs. October 5, 2010. (Surinder Singh), J. (rc)