IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 13TH MAY 2010 / 23RD VAISAKHA 1932 AS.No. 62 of 1996 ------------------------- [OS.NO.581/1992 OF PRINCIPAL SUB COURT, NORTH PARAVUR] .................... APPELLANT/DEFENDANT: -------------------------------------- PUTHENVELIKARA PANCHAYAT, PUTHENVELIKARA, PUTHENVELI VILLAGE, PARAVOOR TALUK, REPRESENTED BY ITS EXECUTIVE OFFICER. BY ADV. SRI.JOHNSON MANAYANI. RESPONDENTS/PLAINTIFFS: ------------------------------------------ 1. BABU, S/O. K.T. CHEEKU, KAIMATHURUTHIL VEEDU, PUTHENVELIKARA, PUTHENVELIKARA VILLAGE, PARUR TALUK. 2. JAIGE, S/O. K.T. CHEEKU OF .DO. .DO... R1 & R2 BY ADVS. SRI.V.V.SURENDRAN, SRI.P.A.HARISH. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27/05/2009 ALONG WITH CROSS OBJECTION, THE COURT ON 13/05/2010 DELIVERED THE FOLLOWING: A.S. NO.62/1996: ORDER ON C.M.P. NO. 280/1996 IN A.S. NO. 62/1996 DISMISSED 13/05/2010. SD/- K.SURENDRA MOHAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. K. SURENDRA MOHAN, J. ------------------------------------------------------------ A.S. NO: 62 OF 1996 & Cross objections ----------------------------------------------------------- Dated this the 13th May, 2010. JUDGMENT This is an appeal filed challenging the judgment and decree dated 31.10.1994 of the Principal Sub Court, North Paravur in O.S.581/1992. The appeal is filed by Puthenvelikkara Panchayat, the defendant in the suit. The plaintiffs in the suit are the respondents in the appeal. The respondents have filed cross objections contending that the finding of the court below that the amounts incurred as expenditure for cultivation was liable to be recovered from the amounts granted to them was unjustified. Both the appeal and cross objections are disposed of together. 2. The suit was filed by the respondents/plaintiffs against the Panchayat for the recovery of damages. The plaintiffs are residents of the Puthenvelikkara Grama Panchayat in Paravur Taluk. They are farmers and owners of the plaint schedule properties. The plaintiffs as well as their predecessors were conducting paddy cultivation in the property from ancient times. According to them, they used to conduct three crop cultivation and the season for puncha cultivation is from January to March every year. The water AS 62/96 & Cross Objections 2 required for Puncha cultivation used to be collected from the thodu adjacent to the plaint schedule property. It is the contention of the plaintiffs that they used to get 450 paras of paddy and 4500 bundles of hay and that the plaintiffs being farmers, the income from the paddy fields was their main source of livelihood. In order to prevent the entry of salt water into the paddy fields the Puthenvelikkara Panchayat used to construct a bund in the thodu under the Thondalpalam, every year. The construction of the bund was for protection of the paddy fields. 3. The plaintiffs were under the impression that such a bund would be constructed by the Panchayat during the current year also. Therefore, they effected cultivation in their paddy fields. However, the Panchayat did not construct the bund and sluice, as expected by the plaintiffs. It is contended by the plaintiffs that the bund and sluice should have been constructed before the 15th of November. But, since the Panchayat failed to construct the bund, salt water entered the thodu and from there into the paddy fields. Consequently, the entire cultivation in the paddy fields were damaged. Further, by the entry of salt water into the fields, the plaintiffs were prevented from cultivating the paddy fields for the next three years. According to the plaintiffs, the loss was caused AS 62/96 & Cross Objections 3 due to the negligence on the part of the Panchayat, in not constructing the bund under the Thondalpalam in the Thodu before the 15th November. The loss caused to the plaintiffs is quantified at Rs. 29,500/- and a decree for recovery of the said amount from the Panchayat was sought for by them in the suit. 4. The suit was contested by the defendant, contending that the suit was not maintainable, filed without any bonafides and that there was no cause of action for filing the suit against the Panchayat. It was contended that the suit was filed without issuing necessary notice to the Panchayat. It is further contended that the defendant does not know whether the plaintiffs are farmers or whether three crop cultivation was being conducted in the paddy fileds, as alleged. The case of the Panchayat is that, every year with the permission of the Panchayat, the farmers in the locality used to construct a bund in the thodu under the Thondalpalam, for the protection of the Puncha Cultivation and a sluice also used to be maintained. The Panchayat used to give necessary financial assistance for the construction of the bund and sluice. The Executive Officer of the Panchayat used to oversee the work, on the basis of the decision taken by the Executive Committee. The allegation regarding the quantity of paddy and hay that the AS 62/96 & Cross Objections 4 plaintiffs used to get from the cultivation is denied. According to the Panchayat, it was not its responsibility to construct the bund and the same used to be constructed by the farmers. Therefore, the allegation that the plaintiffs had undertaken the cultivation on the belief that the Panchayat would construct the necessary bunds is denied. The Panchayat used to act for the public good and, as per the decision of the Panchayat on 22.8.1991 a resolution was taken by the committee and necessary works were done for preventing the entry of salt water into the Thondalthodu in Ward No:8. The committee was convened under the Presidentship of T.K.Chathan and the work was entrusted to the nominee, Shri. Varkey Solly. The allegation that because of the failure in constructing the bund the cultivation of the plaintiffs was damaged by the entry of salty water is denied. It was contended by the Panchayat that there were a number of paddy cultivators in the area and that none of them had complained against the defendant. The Panchayat was not negligent in the discharge of its duties. The plaintiffs were not entitled to recover any amount from the defendants. Therefore, the defendant prayed for the dismissal of the suit. AS 62/96 & Cross Objections 5 5. The court below framed four issues on the above pleadings and tried the suit. The evidence in the case consists of the oral testimonies of P.Ws 1 to 5 and D.W.1 besides Exts. A1 to A3 and Exts.B1 to B4 documents. After considering the evidence on record as well as the contentions of the rival parties, the court below found that the plaintiffs were entitled to recover an amount of Rs.7,500/- from the Panchayat with future interest at the rate of 12% per annum, with proportionate costs. Accordingly, the suit was decreed in part. The above appeal and cross objections are against the said judgment and decree. 6. According to the counsel for the appellant, the duty of the Panchayat to maintain public roads, to provide lights on public roads and public places, to construct drains etc. are provided under Section 57 of the Kerala Panchayats Act, 1960, hereinafter referred to as the 'Act'. It is pointed out that the said provision does not cast an absolute duty on the Panchayat to provide the said conveniences or to make the constructions stipulated therein. The duty under the said provision is discharged on the Panchayat making a reasonable provision, within the limits of its funds. The counsel has further contended that the plaintiffs are farmers who were aware that salt water would enter the fields if the bund was AS 62/96 & Cross Objections 6 not constructed. Therefore, they had started their cultivation knowing fully well that no bund had in fact been constructed. Consequently, they had only themselves to blame for the loss sustained. According to the Panchayat it had done everything that was necessary to have the bund constructed in time by constituting a committee and entrusting the construction work to a person nominated by the committee. The bund was not constructed only because of the delay on the part of the committee. Therefore, according to the counsel, the Panchayat was not liable to compensate the plaintiffs for the loss, if any sustained. On the above grounds, it is contended that the court below went wrong in awarding compensation to the plaintiffs. 7. The counsel for the respondents have sought to sustain the judgment and decree of the court below by pointing out that Section 57(1) (j) read with Section 57(2)(i) of the Act casts a composite duty on the Panchayat to construct and maintain the bund effectively and to ensure that salt water did not enter the paddy fields of the plaintiffs. By not constructing the bund the Panchayat was guilty of gross negligence in the discharge of its duty. As a result, salt water entered the paddy fields destroying the cultivation of the plaintiffs and causing loss to them. Because of AS 62/96 & Cross Objections 7 the presence of salt in the fields, it also became impossible for the plaintiffs to undertake any cultivation for the next three years. Therefore, the Panchayat was liable to compensate them for the loss caused. According to the counsel, the court below erred in deducting the amount spent for cultivation from the compensation amount awarded to them. Therefore, they pray that the suit may be decreed as prayed for, modifying the judgment and decree of the court below. 8. I have heard counsel for the appellant as well as the respondent in detail. I have been taken through the pleadings in the case as well as the evidence on record. 9. The point that arises for consideration in the above appeal is :- “Whether the Panchayat had a duty to construct a bund for irrigation purposes as claimed, in the discharge of which duty there was negligence, causing loss to the plaintiffs?” 10. It is admitted that the plaintiffs are the owners of the plaint schedule properties which are paddy fields in which they used to undertake three crop cultivation. The puncha cultivation is carried on during the period from January to the end of March and water for the said cultivation is taken from the adjacent thodu is AS 62/96 & Cross Objections 8 also not in dispute. For preventing the entry of salt water into the fields, a bund used to be constructed by the Panchayat in the thodu under the Thondalpalam before the 15th of November every year. On the impression that such a bund would be constructed, the plaintiffs effected cultivation in the plaint schedule property. But, the defendant did not construct the bund and, therefore, the salt water entered the paddy fields and destroyed the entire cultivation. The fact that the entire cultivation during the season was damaged is admitted. 11. According to the defendant, the bund under the Thondalpalam was to be constructed with the permission of the Panchayat by the farmers. The Panchayat used to give the necessary permission and the farmers used to construct the bund and sluice. According to the Panchayat, the construction of the bund in the Thondalthodu was entrusted by the convenor of the committee to one Varkey Solly and that because of the negligence of the said committee the bund was not constructed. 12. Section 57(1) of the Act enumerates elaborately, the matters with respect to which a duty is cast on the Panchayat. Different matters are enumerated in both clauses (1) and (2) of the said provision. The opening words of Section 57 reads as follows:- AS 62/96 & Cross Objections 9 “Subject to the provisions of this Act and the rules made thereunder it shall be the duty of a Panchayat, within the limits of its funds, to make reasonable provision for carrying out the requirements of the Panchayat area in respect of the following matters namely:- x x x x x x x x 2) Subject to the provisions of the Act and the rules made thereunder a Panchayat may also, within the limit of its funds and wherever possible with Government aid, make reasonable provision for carrying out the requirements of the Panchayat area in respect of the following matters namely 13. It may be seen from the wording of the above provision that the duty of the Panchayat is to make 'reasonable provisions' for carrying out the duties enumerated, “within the limits of its funds”. However, it is clear from a reading of Section 57(1)(j) conjointly with clauses (i) of Sub-Section (2) thereof that a duty has been cast on the Panchayat to construct and maintain bunds similar to the one in the present case. In the present case, the Panchayat has no case that it had any constraint of funds. In fact the case of AS 62/96 & Cross Objections 10 the Panchayat is that a decision was taken by the Panchayat on 22.8.1991 for taking necessary action to prevent the entry of salt water into the Thondalthodu and as per the resolution, necessary works were done. A committee was convened under the Presidentship of one T.K.Chathan and the work was entrusted to the nominee of the committee who is one Varkey Solly. The case of the Panchayat is that due to failure on the part of the committee the bund was not constructed. However, having decided to do everything that was necessary to prevent the entry of salt water into the thodu and having initiated action for the construction of a bund, it is not open to the Panchayat to wash its hands off and to disclaim responsibility for the non-implementation of the work. The Panchayat cannot escape liability by putting the entire blame on the committee that was entrusted with the implementation of the construction. It cannot be denied that the Panchayat had a duty to supervise the functioning of the committee and to see that its decision was implemented. It is worth noticing that the Executive Officer of the Panchayat was a member of the said committee. A statutory authority cannot escape from the responsibility of discharging its statutory duty by putting the blame on another functionary. The Committee was formed for implementing the AS 62/96 & Cross Objections 11 decision of the Panchayat. Therefore, if the implementation committee was not functioning efficiently, the Panchayat had a duty to cancel the work and to get the same executed by adopting some other modus. The Panchayat was very well aware that its omission to construct a bund would result in serious adverse consequences to the farmers of the locality. As a statutory body, the Panchayat ought to have conducted itself in a more responsible manner. Therefore, it is found that the Panchayat was certainly responsible to ensure that a bund was constructed within time so as to prevent the entry of salt water into the paddy fields. 14. The next question to be considered is whether there was negligence on the part of the Panchayat in constructing the bund. P.W.1 is the second plaintiff. He has deposed that usually the bund and sluice used to be constructed before the 15th of November every year. However, during 1991, the bund was constructed only during December 1991 and that in the meanwhile the salt water entered the Thodu and caused damage to the paddy cultivation. He further alleges that even the construction of the bund was defective for, there was a hole in the bund and that also was another cause for the damage. A sluice was not installed at that time. He further deposed that he had issued a notice Ext.A1 to the AS 62/96 & Cross Objections 12 Panchayat but, the Panchayat did not issue any reply. He had also taken out a commission in O.S.248/92 and had got the damages sustained, assessed. 15. A neighbour of the plaintiffs has been examined as P.W.2. He has also deposed that the bund and the sluice in the Thodu used to be constructed during the month of November every year and the Puncha cultivation of the plaintiffs was damaged because such a bund was not constructed in 1991. He has further deposed that every year during the time when the bund was to be constructed, a convenor used to be elected by the committee of the cultivators and the said committee used to decide when the bund was to be constructed. It used to be constructed in November since the salt water used to enter the thodu during high tide in “Vruchikam”. He admits that it is on the basis of the information given by the farmers to the Panchayat regarding election of the convenor that steps for construction of the bund used to be taken by the Panchayat. A convenor who was nominated for the construction of the bund is examined as P.W.3. According to this witness, the Panchayat used to entrust him with the construction of the bund and after construction of the bund the expenses would be paid by the Panchayat. According to him during 1991, the AS 62/96 & Cross Objections 13 sluice remained damaged and it was not repaired by the Panchayat. He has also stated that he was entrusted with the construction of the bund only at the end of November. By that time the high tide in Vruchikam was over. Since the bund was not constructed before the high tide, during Vruchikam the salt water from the thodu entered the paddy fields and damaged the cultivation. He claimed that he had constructed the bund within 2-3 days after the construction was entrusted to him. He denied that he was elected by the farmers. He used to approach the Panchayat and used to be entrusted with the construction. He has alleged that he had approached the Panchayat during October 1991 for the construction of the bund. But he was informed that the committee had not been convened, that after two weeks he had again approached the Panchayat and he was entrusted with the construction. According to him he completed the construction immediately. He has also stated that it was after construction of the bund he had executed the agreement with the Panchayat regarding the construction of the bund. 16. The Panchayat has produced its file which has been marked as Ext.B1. Ext.B1 shows that the work of construction of the bund was entrusted to P.W.3 as per a resolution dated AS 62/96 & Cross Objections 14 30.11.1991 of the Panchayat committee, which is Ext.B1(a). The file shows that a decision to construct the bund had been taken as early as on 24.8.1991. However, the work is seen entrusted to P.W.3 only after more than three months thereafter. There is no explanation for this delay. Since the Puncha cultivation is done during the period from January to March, the preliminary works like ploughing of the fields etc. had to be done much earlier. It is the actual sowing of the seeds that is done during January 1991. Therefore, since the cultivators very well know that the bund had not been constructed, they should not have proceeded with the cultivation, it is contended. According to P.W.1, he had not known that the bund had not been constructed. He had no direct knowledge regarding the construction of the bund in 1991 and he never used to enquire about it. It has been stated by P.W.1 in re- examination that it would not be possible for him to note the presence of salt water in the paddy field because the salt water would remain at the bottom. Though the court below has found that had the cultivators been vigilant they would have come to know about the presence of salt water in their paddy fields, the same is not based on any evidence. The said finding is unjustified for the reason that it is not possible for a person to detect the presence of AS 62/96 & Cross Objections 15 salt water and it is not fair to blame the cultivators for not having detected the same, especially because no person could expect such an eventuality when the usual practice of the Panchayat during the preceding years had been to construct the bund in time. 17. However, as rightly found by the court below there is no independent evidence regarding the income that the plaintiffs were getting from their agricultural operations, during the previous years. Therefore, the court below has proceeded to estimate the income that could be reasonably expected to be received by the plaintiffs. The evidence of P.W.4 who claims to be a dealer in paddy has been relied on by the court below for the purpose of calculation of the loss. The court below has estimated the income to be Rs.18,750/- being the value of the paddy and hay that the plaintiffs would have received. Out of the said amount, an amount of Rs.11,000/- has been deducted as expenses and an amount of Rs.7,500/- has been awarded as compensation. The amount of Rs.11,000/- has been deducted relying on the deposition of P.W.1 that he has to spent about Rs.11,000/- for the cultivation. 18. It cannot be said that the reasoning of the court below is faulty and unsustainable. In view of the finding that the panchayat had been negligent in the discharge of its duties viz., by their AS 62/96 & Cross Objections 16 omission to complete timely construction of the bund and sluice, the plaintiffs had to be awarded compensation for the loss caused to them as a result of the said negligence. The plaintiffs are in possession of about 2 acres of paddy fields and the amount of Rs.7,500/- granted cannot be termed as excessive in any manner. The plaintiffs had to suffer the said loss due to no fault of theirs. Therefore the finding of the court below that the plantiffs are entitled to recover an amount of Rs.7,500/- from the respondent Panchayat with future interest is justified in the facts and circumstances of the case. I do not find any grounds to enhance the compensation granted. The findings of the court below do not call for any interference. For the foregoing reasons, the judgment and decree of the court below are confirmed and the appeal and Cross Objections are dismissed without costs. K. SURENDRA MOHAN Judge jj AS 62/96 & Cross Objections 17 K. SURENDRA MOHAN,J. ----------------------------------- A.S.NO:62 OF 1996 ----------------------------------- JUDGMENT Dated: 13th May,2010