IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No. 128 of 2005 with Cross Objection No. 292/2005 Date of Decision : May 11, 2010 The Secretary PWD to the Govt. of H.P. & Ors. Appellants. Versus Jounda alias Roop Lal Respondent Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellants : Mr. P. M. Negi, Deputy Advocate General for the appellants/non-objectors. For the respondent : None for respondent/objector though represented. Sanjay Karol, J. (Oral) This is the defendants’ appeal filed under Section 96 of the Code of Civil Procedure. The appellants are the defendants and the respondent is the plaintiff. Hereinafter the parties are referred to as plaintiff and defendants. 2. On 16.12.2009 the matter was adjourned on the request of the learned counsel appearing on behalf of the plaintiff. Today, inspite of several calls none has entered appearance on behalf of the plaintiff since morning. Whether reports of Local Papers may be allowed to see the judgment? 2 3. On 1.9.2001 plaintiff filed a suit praying for a decree of a sum of Rs. 2,50,000/- as damages caused to his house and cowshed. Allegedly the defendants had neglected in properly constructing the road in question. No drains for flow of water had been constructed. 4. Plaintiff is owner in possession of land measuring 0.7 bighas comprised in Khasra No. 198/114, Khewat No. 29, khatauni No. 41 situated in village Tungari, Pargana Gehrwin, Tehsil Ghumarwin, Distt. Bilaspur, H.P. (hereinafter referred to as the suit land). On the suit land he constructed three shops and a cowshed in the year 1989. The shops abutted the Jhandutta – Sunhani Road. Allegedly the respondents/State had constructed the road without any drains. He represented to the authorities for providing proper drainage facility but without any result. In the year 1997 there were heavy rains which caused water to flow from the road towards the suit land. This damaged the shops and the cowshed. Plaintiff suffered damages to the extent of Rs. 2,50,000/- and claimed by way of legal notice but without any response. 5. The defendants resisted the suit by inter alia stating that the road which was constructed in the year 1984-85 had been passed for vehicular traffic in the year 1986. A proper road was constructed by P.W.D. in accordance with the instructions laid down from time to time and all formalities were completed before the road was made open for vehicular traffic. Proper and complete drains had been constructed by the department. In the year 1997, due to unprecedented rainfall heavy loss was caused to public and private 3 property. In effect the cause of natural calamity was an act of God and by way of assistance as a relief, plaintiff was also sanctioned a sum of Rs. 700/- by the Deputy Commissioner, Bilaspur. Earlier in the year 1994 when also loss had been caused due to natural calamity, plaintiff had been awarded a sum of Rs. 8000/-. 6. Based on the pleadings of the parties the trial Court struck the following issues:- “1. Whether the house of the plaintiff had been damaged on account of construction of Jhandutta – Sunhani highway by defendants nos. 2 and 3, as alleged? OPP 2. If issue No. 1 is proved, to what amount of compensation and from whom the plaintiff is entitled to? OPP 3. Whether the pllaintiff is estopped from instituting the suit by his act and conduct?” OPD 4. Whether the plaintiff had complied with the provision of Section 80 C.P.C. OPP 5. Whether the suit is not maintainable in the present form? OPD 6. Relief.” 7. Plaintiff Sh. Jaunda Ram examined himself as PW-1, Sh. Garak Chand (PW-2), Sh. Sita Ram (PW-3) and Sardar Inder Singh (PW-4). In rebuttal defendants examined Sh. Ramesh Kumar Garg (DW-1), Sh. Vijay Ram (DW-2) and Sh. Shankar Dass (DW-3). 8. The trial Court held that even though the road stood constructed in the year 1986 but the plaintiff had built his house 4 only in the year 1989. The letters Ext. PW1/A, Ext. PW1/B, Ext. PW1/C, Ext. PW1/D, Ext. PW1/E, Ext. PW1/F, Ext. PW1/G and Ext. PW1/H written by the plaintiff could not be looked into as they were not proved in accordance with law. On the question of negligence attributable to the defendants the Court held that:- “23. From above discussion, it is clear that the plaintiff constructed his house after 2/3 years of completion of the road. He was quite aware of the fact that no proper provision has been made for discharge of the water and before starting the construction of his cow-shed etc. he should have made a proper representation to the defendants to construct the retaining wall and thereafter he should have raised the construction. He did not make any representation earlier before starting his house but made the representation after he had suffered the loss for which the defendants paid him compensation of Rs. 8700/-. In case the defendants had failed to raise construction of the retaining wall etc. or made no provisions for discharge of the rainy water he should have represented to the government or filed a suit of mandatory injunction praying for such relief. In the alternative he should have made due provision of construction of retaining wall by himself if he desired or made the construction in such a manner that no damage was caused to him due to the discharge of rainy water from the road. The land was vacant at that time when the defendants constructed the road and though, it was required of them to have made proper provisions for discharge of the rainy water but they did not make any such provisions which can be said to be one of the reasons for the loss suffered by the plaintiff. 5 They may not be aware at that time when they constructed the road that the water will fall on the constructed portion of cow-shed etc. since no proper construction existed but once the road had been made by them and it was apparent that no proper provision has been made for construction of the retaining wall etc. the defendants should have presumed that in the absence of proper provision, the rainy water can fall on the ‘land’ in natural manner which can damage the land and there may be deterioration in the quality of the land. However, this fact cannot be ignored that the plaintiff while making the construction did not make proper representation to the defendants prior to the construction and did not make any proper provision for retaining wall and did not make the construction in a manner so that no loss was caused due to discharge of water from the road, he can also be said to be liable for the damages suffered by him which were suffered by him mainly due to an act of the God i.e. un-precedented rains and partly due to the fact that no proper wall was constructed by the defendants while making the construction of the road. 24. In view of the above discussion it can be concluded that this issue stands partly proved only to this extent that the defendants have not provided for the retaining wall while starting construction of the road and they cannot be said to be liable for the whole damages that may have suffered by the plaintiff but only partly for their failure to construct a retaining wall before starting the road. This issue is, therefore, partly decided in favour of the plaintiff and as against the defendants.” 6 Thus issue No. 1 was decided accordingly. On the question of assessment of damages, the Court found that the plaintiff had failed to prove the amount of actual damage caused to his property. But however, considering the fact that the defendants had themselves assessed damages to the tune of Rs. 8700/- plaintiff was awarded a sum of Rs. 15,000/- as damages. 9. Plaintiff’s Civil Suit No. 2 of 2001, titled as Jaunda alias Roop Lal versus The Collector, District Bilaspur and others was decreed by the learned District Judge, Bilaspur, H.P. in terms of judgment and decree dated 11.1.2005. 10. The defendants have filed the instant appeal in which the plaintiff has also filed Cross Objections (Cross Objection No. 292 of 2005). 11. The reasons for awarding damages and decreeing the plaintiff’s suit are erroneous and not based on complete and proper appreciation of the material on record. I have minutely examined the evidence led by the plaintiff. The Court below itself came to the conclusion that the plaintiff had constructed the house only after the road was made open for vehicular traffic. It rightly disbelieved the plaintiff’s version, that the road had been constructed in a manner that the flow of the rainy water was kept towards the plaintiff’s house. What precautions the plaintiff had taken to check such flow of water are not proved on record. 12. Statement of PW-1 is vague and unspecific. He has simply stated that:- 7 “… … When the road was constructed, the slope of the rainy water which was flowing on the road was kept towards my house. Due to heavy rains and negligence of PWD Authority, who was constructing the road, the rainy water from the road fell on my house and shops alongwith cow-shed and my shops, house and cow-shed got damaged in 1997. …” “… … The damage to my house, shops and cowshed have been caused due to the negligence of PWD authorities, who have not provided proper drainage system for the discharge of the water and the damage has been caused to my house by the rainy water which came through the said road. The damage to my house had started in the year 1994, which was also reported to the Deputy Commissioner, for which a grant of Rs. 8,000/- was given to me, which was not sufficient. …” In his cross examination he categorically admits that:- “… … It is correct that in the year 1992 there had been heavy rains and floods in this area. It is also correct that in the year 1997, there had been unprecedented rains and floods in Himachal Pradesh. …” “… … It is correct that for about 10 years after the construction of the road I had not made any complaint to any authority. …” “… … It is correct that the PWD Authority had informed me on 28.11.1997 that they have constructed this road prior to the construction of my house. Self stated, it was false. It is correct that I had not kept any account of construction of my house. It is correct that an amount of Rs. 8,000/- was given to me by the Administration under the National Calamities. Self stated that claim has nothing to do with the present damage. It is correct that my house was completed in the year 1989. …” 8 13. Now plaintiff himself admits that at the relevant time when his property was damaged there was unprecedented rainfall in the State of Himachal Pradesh. Apart from the bald statement there is nothing else on record to prove the fact that the defendants had not provided for any proper drainage of water when the road was constructed. He admits that for almost a decade he did nothing to check the alleged flow of water towards his house. The version of Sh. Sita Ram (PW-3) to the extent that PWD authorities had not provided for proper drainage and as such water was discharged towards the plaintiff’s house cannot be said to be correct for the reason that the road already stood constructed prior to the construction of the house in question. 14. The damage caused to the plaintiff’s property is sought to be proved through the version of Sardar Inder Singh (PW-4). He does not state anything with regard to the defendants’ negligence. Even his statement does not advance the plaintiff’s case. He is an expert and categorically states that “… I cannot say if this area had slided down as a result of the act of the HP PWD …”. He has not examined the technical report on the basis of which the road had been constructed by the PWD. Nor did he place on record the material on the basis of which damage report was prepared by him. 15. Sh. Garak Chand (PW-2) has simply taken the photographs of the damage caused to the property. 9 16. In my considered view the plaintiff has absolutely failed in proving that the State had not constructed the road in a proper manner and that no proper drains had been provided for free flow of water. It is also not proved that the defendants had constructed the road in such a manner that the water from the road had flown towards the plaintiff’s land and damaged his property. It stands admitted by the plaintiff that a sum of Rs. 8000/- in the year 1994 and Rs. 700/- in the year 1997 was assessed as damage caused to his property by the Deputy Commissioner. This was on account of natural calamity occurred due to widespread and heavy rainfall in the State of H.P. The State had taken a policy decision to provide relief to all the aggrieved persons. In any event there was no basis for the Court to have awarded damages of Rs. 15,000/- as there was no legal evidence on record to prove the same. 17. It cannot be said that the learned District Judge has correctly appreciated the material on record. The findings arrived at and the reasons adopted are erroneous and illegal. Hence they are reversed and the decree is set aside. The plaintiff’s suit is consequently dismissed. The Appeal is allowed and the Cross Objections are dismissed. (Sanjay Karol), Judge. May 11, 2010 (PK)