THE HON'BLE SRI JUSTICE K.C. BHANU APPEAL SUIT NO. 16 OF 2008 JUDGMENT: This appeal is directed against the judgment and decree, dated 20-11-2006, in O.S.No.35 of 2005, on the file of the Principal District Judge, West Godavari at Eluru, whereunder and whereby the suit filed to pass a decree for Rs.12,22,000/- towards cost of the construction of dismantled bus shelters, was decreed in part directing the defendants 1 and 2 to pay a sum of Rs.6,11,000/- with subsequent interest at 12% p.a. from the date of suit till the date of realization. 2. Appellants herein are the defendants and the respondent herein is the plaintiff in the suit. 3. The averments of the plaint in brief are as follows: In order to facilitate to the public at large, the plaintiff authorities had constructed number of bus shelters in various villages at Unguturu, Duvva, Nachugunta and Kaikaram after obtaining prior permission from the Irrigation Department. The plaintiff incurred an amount of Rs.1,10,000/- and Rs.1,40,000/- respectively towards cost of construction of bus shelters at Gundugolamanu village and also Rs.2,24,000/- at Duvva village. Likewise plaintiff also incurred an amount of Rs.63,000/-, Rs.1,50,000/-, Rs.85,000/- and Rs.1,50,000/-towards cost of construction of bus shelters at Nachugunta, Kaikaram, Kurellagudem and Badampudi villages. In the said cost of construction of bus shelters, contribution from the villagers of Nachuguntla and Kaikaram were also included. After completion of bus shelters in various places, the people of respective villages were utilizing the same according to their convenience. In the year 2001 under the cause of widening of the roads, all of sudden without issuing any prior notice and without knowledge of the officials of the plaintiff, all the bus shelters which were located in various places were dismantled and the total structures were removed from its origin. The bus shelters were not caused any hurdle or obstruction for widening N.H.5 road. Due to sudden illegal act of the authorities belonging to the defendants 2 and 3, much inconvenience was caused to the public at large and they lost their shelter facility in their respective villages. Plaintiff immediately sent proper communication to the 2nd defendant for payment of cost of construction of the dismantled bus shelters and also got issued Section 80 CPC notice to the defendants calling upon them to pay compensation of the dismantled bus shelters at various places. But, the defendants did not give any reply. Hence, the suit. 4. 2nd defendant filed written statement adopted by 1st defendant denying the averments made in the plaint. It is stated that the bus shelters were constructed on the road margins of Vijayawada-Visakhapatnam of N.H.5 at various places of Unguturu, Duvva, Nachugunta, Kaikaram, Kurellagudem and Hadampudi villages and they are unauthorized constructions and plaintiff did not obtain any permission from 2nd defendant. While fixing the road boundaries, the unauthorized constructions of bus shelters are found as encroachments and as per the instructions of higher authorities, encroachments were removed to facilitate four lining of NH5 except APSRTC bus shelters available at Gundugolanu. The plaintiff has not filed proof of permission by the other Government department for construction of bus shelters. Hence, the suit may be dismissed with costs. 5. 3rd defendant filed separate written statement denying the averments made in the plaint. It is stated that Government of India proposed to facilitate better transportation to the public by laying four/six lanes of National High Way wherever necessary. Accordingly, 4 lanes is commenced in the year 2001 by acquiring sufficient land of private/government on either side with prior intimation to the land owners concerned from K.M.80.00 to K.M.300.00 of Vijayawada-Visakhapatnam section. All the existing encroachments on either side of the road margin are removed with the help of Revenue Department and compensation was paid to all the eligible land owners towards the cost of land, structures, building and crop etc., after calling for claims and objections from those persons concerned by enquiring their right to claim and by examining the genuineness of the claim in each and every case. If the plaintiff got any right in making claim, it ought to have appeared before the competent authority on the date of enquiry with documentary evidence if any, in order to substantiate its claim, but it did not do so. Hence, the plaintiff is not entitled to make a claim against the defendant and hence, it prays to dismiss the suit. 6. Basing on the above pleadings, the following issues were settled by the trial Court: 1. Whether the plaintiff is entitled for recovery of Rs.12,22,000/- towards cost of construction of the dismantled bus shelters from the defendants? 2. To what relief? 7. On behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A1 to A19 were got marked. On behalf of the defendants, D.Ws.1 and 2 were examined, but no documents were marked. 8. The trial Court after considering the oral and documentary evidence available on record, decreed the suit as stated above. Aggrieved thereby, this appeal has been preferred by the defendants. 9. Now the point for determination is whether the judgment of the trial Court is correct, legal and proper? 10. Learned Government Pleader for Appeals appearing for the appellants-defendants contended that corporation unauthorisedly constructed bus shelters and the corporation has no right of whatsoever to construct the same by the side of the road, that admittedly the land was under the control of the Irrigation Department and the corporation has not obtained any prior permission from the Irrigation Department to construct the bus shelters and hence, the appellants are not liable to pay any compensation to the corporation. 11. On the other hand, learned standing counsel appearing for the corporation contended that the bus shelters were constructed for the use of general public, that no notice was given to the corporation for removal of bus shelters before widening of roads had taken up and had they given notice, corporation would have taken steps to remove the shelters and without there being any notice, bus shelters have been dismantled, that the evidence of P.Ws. 1 and 2 would go to show that they incurred about Rs.12,00,000/- for making constructions of bus shelters, that considering the evidence on record, the trial Court rightly decreed the suit for Rs.6,11,000/- and absolutely, there are no grounds to interfere with the same. 12. The factual matrix is not in dispute. For the purpose of widening of N.H.5, bus shelters were dismantled by the Project Director, N.H.5 on the ground that the constructions are illegal and without obtaining any permission from the Irrigation Department, the constructions were made. It is not in dispute before this Court that all the bus shelters which were dismantled for the road widening were constructed prior to 1999. Even assuming for a moment that the corporation has not obtained any prior permission from the Irrigation Department for the purpose of raising bus shelters, but that does not mean the Project Director, NH5 can dismantle the same. If any notice was given to the corporation to dismantle the bus shelters, the corporation would have taken necessary steps for its dismantle or they would have shifted the shelters from one place to another. Admittedly, no notice was given by the authorities concerned. The plaintiff after issuing Section 80 CPC notice, filed the suit. The evidence of P.Ws. 1 and 2 would go to show that bus shelters were raised by them long prior to 1999 and cost of making such construction incurred by the corporation was Rs.12,00,000/-. Practically, the evidence of P.Ws. 1 and 2 remained unchallenged. Even the defendants did not deny or dispute about dismantling of bus shelters. But, their contention is that since the bus shelters were made by encroaching into the land of Irrigation Department, the corporation is not entitled for any compensation. In such circumstances, the defendants ought to have issued a notice to the corporation. Even assuming for a moment that the corporation has raised bus shelters unauthorizedly, it is not for deriving any benefit to the corporation, but it is for the sake of general public who have to be protected themselves from sun and rain. 13. With regard to assessment of compensation, according to P.W.2, for assessment of compensation for the construction of bus shelters, he had taken the cost price of the year 2002. Admittedly, the construction of bus shelters were made in the year 1999. Taking into consideration the cost of material, cement and iron etc., the trial Court rightly granted half of the amount claimed as compensation. Hence, there are no grounds to interfere with the same. 14. Accordingly, the Appeal Suit is dismissed. No order as to costs. _______________ K.C. BHANU, J DATED: 08-09-2011 Hsd-