IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Civil Suit No. 76 of 2001 Judgment Reserved on 5.4.2010 Date of Decision: 7th October, 2010 __________________________________________________________ Laiq Ram & others ….Plaintiffs. Versus State of HP & another ….Defendants. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. ___________________________________________________________ For the Plaintiffs: Mr. Ashok Kumar Sood, Advocate For the Defendants: Mr. P.K. Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Deputy Advocate General. __________________________________________________________ Dev Darshan Sud, J (oral). The plaintiff has filed this suit for recovery of Rs. 15,08,082/- alongwith pendente lite and future interest at the rate of 18% per annum from the date of filing of the suit, till its actual payment. The allegations made in the plaint are that the plaintiffs are the owners in possession of land comprised in Khata No. 15 min, Khatauni No. 28 min, Khasra No. 191, measuring 4-17 bighas, 220/1, measuring 8-6 bighas, 294 measuring 6-10 bighas, 322, measuring 1-17 bighas, 322/1 measuring 3 biswa and 548 measuring 4-1 bighas, kitas 5, total area 25- 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 14 bighas situated in mauja Nahaul, Pargana Ratesh, Tehsil Thego, District Shimla. The plaintiffs plead that the State through its Public Works Department, had constructed a road known as Shakeel Dhar-Aloti road in the year 1996-97, in Tehsil Theog, District Shimla. The Government of Himachal Pradesh had acquired the land measuring 2-10 bighas, out of the suit land from Khasra No. 220/, 548 and 191, as described in the plaint. The plaintiffs plead that while the road was being constructed, the employees/agents/servants who worked under the control of the Himachal Pradesh Public Works Department caused damage to the other land of the plaintiffs where there was an orchard and house of the plaintiffs. Huge quantity of debris, stones, boulders etc. have been thrown in such a way that render the land of the plaintiffs unfit for cultivation and caused damage to the fruit trees. The plaintiffs claimed that despite the loss having been assessed by the defendants themselves, the same has not been paid. The damage report was prepared by the Patwari and Kanungo and confirmed by the Tehsildar. The plaintiffs claimed Rs. 30,628/- on account of damage suffered by the plaintiffs, Rs. 3,08,610/- on account of destruction of 55 apple trees, 20 plum trees, two apricot trees and two peach trees, Rs. 5,03,419/- for the damage to suit land, Rs. 4,56,934/- for removal of the debris and Rs. Rs. 6,65,425/- on account of interest on the damages caused. 2. The suit of the plaintiff is resisted by the State on a number of grounds including the fact that the suit is not maintainable. The defendants admitted the construction of road and also an amount of Rs. 44,818/- which was assessed as a loss caused by construction of road. 3. On the pleadings of parties, this Court settled 12 issues on 9.5.2003: 3 (1) Whether the plaintiffs are entitled to recover Rs. 30,628/- from the defendants on account of loss and damage caused by the defendants to crops and grass of suit land due to construction of road known as “Shakeen Dhar-Alloti Road” as alleged in sub-para (i) of para 6 of the plaint? ….OPP (2) Whether the plaintiffs are entitled to recover Rs. 3,08,610/- from the defendants on account of loss, destruction and damage caused to fruit bearing apple trees, apricot trees, peach trees due to construction of road known as “Dhar-Alloti Road” as alleged in sub-para (ii) of para 6 of the plaint? OPP (3) Whether the plaintiffs are entitled to recover Rs. 5,03,419/- from the defendants as compensation for damage caused to the suit land, house and field etc. by the defendants and restoring the suit property to its original position as alleged in sub-para (iii) of para 6 of the plaint? …..OPP (4) Whether the plaintiffs are entitled to interest on the amounts mentioned above as claimed in sub- para (iv) of para 6 of the plaint, if so, at what rate? ….OPP (5) Whether the suit is not maintainable nor competent, as alleged? ….OPD (6) Whether the plaintiffs have no locus standi to file the present suit? ….OPD (7) Whether the plaintiffs are stopped from filing the present suit due to their own acts, deeds and conduct? ….OPD 4 (8) Whether the suit is not properly valued for the purpose of court fee and jurisdiction, if so, what is the correct value of the suit? ….OPD (9) Whether the plaintiffs are liable to pay exemplary cost under Section 35(a) of the C.P.C.? ….OPD (10) Whether the plaintiffs have no cause of action to file the preset suit? …… OPD (11) Whether the suit is barred by limitation? ……OPD (12) Relief. Issue No. 5 4. This issue has been framed on preliminary objection having been taken by the State on maintainability. There is no evidence to establish this issue. This issue is, therefore, decided in favour of the plaintiffs and against the defendants. I hold that the suit of the plaintiffs is maintainable, more especially in view of the pleadings and the evidence, which has been brought on record of the case by the plaintiffs. Issue No.6 5. No evidence has been led by the defendants on this issue. This issue, is also therefore, decided in favour of the plaintiffs and against the defendants. I hold that the plaintiffs have locus standi to file the present suit. Issue No. 7 6. No evidence has been led by the defendants to prove this issue. This issue is therefore decided in favour of the plaintiffs and against the defendants. I hold that the plaintiffs have locus standi to file the present suit. 5 6 Issue No.8 7. This pertains to the jurisdiction of this Court to try the suit. Again I find that there is no evidence on record which has been produced by the State to establish that the suit is not properly valued for the purpose of Court fee and jurisdiction. From the pleadings what I find is that the plaintiffs claims damages to the extent of Rs. 15,08,082/- for which the requisite Court fee has been fixed ad valorem. This issue is decided in favour of the plaintiff and against the defendants as the suit is valued for the purpose of Court fee and jurisdiction. Issue No.9 8. No evidence has been produced by the defendants to substantiate the claim that exemplary costs under Section 35(A) of the Code of Civil Procedure can be imposed upon the plaintiffs. Therefore, this issue is decided in favour of the plaintiffs and against the defendants. I hold that suit discloses triable cause. 9. On the preliminary objections taken by the defendants i.e. that the suit is not maintainable, locus standi and that plaintiff is required to be compensated with exemplary costs, I find that beyond pleadings there is no material on record, nor is there any evidence to substantiate this fact. Issue No. 10 10. There is no evidence on this issue that the plaintiffs have no cause of action to file the present suit. Hence, this issue is decided in favour of the plaintiffs and against the defendants. Issue No. 11 11. It is undisputed before me that communication Ext.P12 is a receipt issued by the Assistant Engineer, Theog Sub Division, acknowledging the damage caused to the land of the plaintiffs. This 7 receipt has been issued by the defendants. Learned counsel also relies upon Ext.P13, which is the entry in the Field Book, issued by the Patwari accepting the damage caused to the land of the plaintiffs. This receipt is also admitted by the defendants. Learned counsel also relied upon Ext.P9 which is an entry made by the revenue staff in the Field Book, recording and acknowledging the damage caused. In these circumstances, I hold that the defendants themselves having acknowledged and admitted the damage through documents which have been noticed by me and proved in evidence by admission of the defendants themselves, it cannot be said that the claim of the plaintiffs is beyond a period of three years. I therefore hold that suit is within limitation. Issue No.1 12. The plaintiff pleads that he is entitled to Rs. 30,628/- on account of loss and damage caused by the defendants to the crops and grass etc. as pleaded in para 6 of the plaint. In his evidence, the plaintiff while appearing as PW1 states that he is infact entitled to claim this amount. But, I do not find any evidence to establish that a sum of Rs. 30,628/- is due to the plaintiff. However, the defendants in their written statement have admitted that a sum of Rs. 19,752/- is the loss caused to the crops and grass of the plaintiff. In these circumstances, I hold that the plaintiff is entitled to a sum of Rs. 19,752/- on this count. Issue No. 2 13. On this issue, the plaintiff relies upon his own statement and the evidence of PW6 Mr. T.R. Chadha and PW9 Mr. P.S. Thakur, who proved on record the reports Ext.P27 and Ext.PW9/A. 14. PW6 Mr. T.R. Chadha states in his evidence that he holds a degree of Ph.D. in Horticulture (Pomology) from the Indian Agricultural Research Institute, New Delhi and retired as Founder Director 8 Research from Dr. Y.S. Parmar University of Horticulture and Forestry, Solan. According to him, the plaintiff Laiq Ram contacted him in the month of January, 2001 for assessing the damage caused to his apple orchard. On the basis of information provided, he prepared his report Ext.P27. He says that according to him, there were 24 trees for which the damage has been confirmed by the Patwari in his report and as per the calculation made by him, the plaintiffs suffered a loss of Rs. 3,08,610/- on account of damage of 79 trees. He was cross examined by the defendants and he states that no government official from Revenue, Horticulture and PWD were present at the time of his visit. 15. PW9 is Mr. P.S. Thakur is a graduate in Horticulture and has specialized in Pamology. He states that he inspected the orchard of the plaintiffs in the year 2009. He was accompanied by the plaintiff Laiq Ram, Mr. H.S. Bisht who was an Engineer, Patwari and one local resident Mr. Het Ram. He proved his report Ext.PW9/A which is in 21 sheets. He states that the Kanungo and Patwari identified the land. In his cross examination, he was asked as to whether he was familiar with Mr.T.R. Chadha, who had retired as Director, Research from Dr. Y.S. Parmar University. To this, his answer is in the affirmative. In his cross examination, his response to the basis of his assessment is “the basis of my assessment was purely on the report of PWD and revenue Department.” In his report Ext.P27, Mr. T.R. Chadha assessed the damage as Rs. 3,08,610/- whereas in Ext.PW9/A which is a detailed report, the assessment made by him is Rs. 3,24,260/-. 16. Learned Additional Advocate General submits that since this witness has visited the spot only in the year 2009, his report cannot be relied upon. Learned counsel appearing for the plaintiff submits that reading of Ext.P12 and Ext.P13 shows that the damage which has been 9 assessed by this witness is in consonance with the number of trees, which were assessed as damaged by the department. 17. Reliance was also placed on the evidence of DW4 Madan Singh, who says that he went to the spot and assessed the damage vide report Ext.D5. He admits that he has written in this report whatever was pointed out to him by the officials of Public Works department. In other words, he did not associate the plaintiffs with the demarcation etc. On going through Ext.D5, what I find is that the report is extremely sketchy and does not contain any details etc. In these circumstances, I hold that the plaintiffs would be entitled to a sum of Rs. 3 lacs as damages caused to the trees of apple, apricot and peach etc. Issue No.3 17. Learned Additional Advocate General again submits that the plaintiffs are not entitled to recover Rs. 5,03,419/- as compensation for damages caused, as the same has not been supported on the basis of the prevalent rates, as on the dates when the damage was caused. This report was prepared in the year 2009, whereas the damage was caused in the year 1996-97 and thereafter the road was constructed. At the same time, I find that damage is admitted to have been caused as would be evident from Ext.D6 as also from the statement of DW5 Mr. P.C. Bhardwaj, although the quantum of damage is not admitted. In these circumstances, it would be reasonable to award a sum of Rs. 2 lacs as compensation. This issue is accordingly decided. Issue No.4. 18. No evidence has been led by the plaintiffs on this issue. Hence this issue is decided against the plaintiffs and in favour of the defendants. 10 Relief 19. In view of my above discussion, the suit of the plaintiffs is decreed for a sum of Rs. 5,19,752/-. This amount shall carry interest at the rate of 6% per annum from the date of filing of the suit till its payment. Decree sheet be drawn accordingly. (Dev Darshan Sud) Judge October 7th , 2010(ms)