IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 AS.No. 625 of 1999(A) & CROSS OBJECTION -------------------------------------------------------------- -- OS.25/1995 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT(S): IST DEFENDANT ---------------------- NATTAKAM PANCHAYAT, REP.BY ITS EXECUTIVE OFFICER, OFFICE OF THE NATTAKAM PANCHAYAT, MARIAPPALLY P.O., KOTTAYAM. BY ADV. SRI.K.G.PAVITHRAN RESPONDENT(S): PLAINTIFF AND 2ND DEFENDANT ------------------------ 1. P.KURUVILLA JACOB, S/O. LATE JACOB KURUVILLA, ADVOCTE OTTATHYCAL HOUSE, CHINGAVANAM KARA, NATTAKAM VILLAGE, KOTTAYAM. 2. K.M.MATHEW, CONTRACTOR, KALATHIL HOUSE, NEELAMPEROOR POST, VIA, KOTTAYAM. R1 BY ADV. SRI.A.K.ALEX THIS APPEAL SUITS AND CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 15/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 625 OF 1999 & CROSS APPEAL = = = = = = = = = = = = = = = Dated this the 15th day of June, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Kottayam in O.S.25/95. A vigilant advocate moved against the Panchayat with a suit for damages and mandatory injunction. The Panchayat, a statutory authority, expected to look into the welfare of the citizens did not play its role properly and that is the end result which had led to this litigation. The plaintiff, a practicing lawyer, had properties and is having a reasonable house as well as some shop buildings newly constructed. It is his case that the Panchayat while laying a new drainage deviated from the plan, caused maximum A.S. 625 OF 1999 -2- difficulty to him and prevented his source of income by causing obstruction to lease out the newly constructed rooms and therefore claimed damages of Rs.57,500/- and also for a mandatory injunction to direct the Panchayat to put slab over the drainage. 2. The defendants on the other hand had denied the liability as well as the prayer for mandatory injunction. The trial court on a consideration of the materials had granted a decree for mandatory injunction and also a decree for damages of Rs.23,750/-. It is against that decision the defendant has come up in appeal challenging the decree and the plaintiff has filed a cross objection seeking for enhancement of the amount. A.S. 625 OF 1999 -3- 3. Heard the learned counsel for both the sides. Right from Reliance v. Fletcher the doctrine of strict liability is applicable. It is stated that you may enjoy your property but not by causing damages to others. Drainaging water in a Panchayat area is absolutely necessary for the healthy environment of the citizens of that locality. At the same time when a drainage is constructed care must be taken to see that wastes are not dumped into the drainage, pollution is not caused to the inhabitants of the locality etc. and further there must be free flow. In and around we see that majority of the drainages are either filled or does not serve the purpose for which it is constructed. 4. Now here is an embarrassing plaintiff who is running an office in his residential A.S. 625 OF 1999 -4- house had constructed three rooms with an intention to let it out for making some income. It is also his case that people came and ask for the room and one of such persons paid advance but later finding the inconvenience caused in entry, got back money and therefore prevented the plaintiff from enjoying any sort of income from the newly constructed building. 5. Learned counsel for the plaintiff would strongly contend before me that three such rooms are there and therefore the rent has to be calculated by multiplying it by three and had to grant the damages. One cannot precisely calculate the damages in this case because what is proved that on account of the conduct of the defendant is partly there had been some difficulty for the plaintiff. The width of the drainage is only 1½ feet and in local areas A.S. 625 OF 1999 -5- people do cross this without even a slab. Therefore blaming the Panchayat for not putting a slab and claiming at the rate as if the Panchayat is a lessee, the rent as damages cannot be sustained but the law says that if by the conduct of the person injury is caused to the other that person has to be compensated by way of liquidate damages. So it is only really the possible damages that could be awarded. The Commissioner who had inspected the property has collected more oral information which he is not expected to do rather than reporting only on the facts. Time and again this Court has held that the Commissioner is appointed not to report about any oral representations but to report on the facts and materials available on identification of the property. The Commissioner assessed the damages or rent at the A.S. 625 OF 1999 -6- rate of Rs.550/- per month is only a wild guess. It is a matter of evidence for the plaintiff to prove and not for the Commissioner to calculate. Rightly the trial court did not accept that report as such but fixed a reasonable amount of Rs.250/- per month and granted it for 35 months. Just because there are three rooms one cannot multiply it with 3 and grant that much of damages as claimed by the plaintiff. I am told that even today the slabs are not put and the very same plaintiff has not approached this Court or any other Court for future damages most probably it is for the reason known to him or the reason that the rooms should have been leased out. Therefore I do not propose to interfere with the amount of Rs.8,750/- awarded by way of loss of rent to the plaintiff. A.S. 625 OF 1999 -7- 6. The plaintiff is a respectable person of the locality and he is a practicing advocate. There was entry for vehicles to his house. By constructing the drainage the entry into the house is prevented. When it is the drainage of the Panchayat without permission of the Panchayat he cannot put up a slab. The attitude of the Panchayat towards a respectable citizen also appears to be shabby. When a client comes to see a lawyer and when one finds that one has to jump to reach the lawyer's office it is a predicament more for the lawyer rather than for the client. It would have caused him sufficient mental agony and his incapacity to get things done. Therefore the Court below was right in awarding an amount of Rs.15,000/- on that count. I do not find any reason to enhance the same as prayed for by the cross-objectioner. A.S. 625 OF 1999 -8- 7. Lastly, the litigation is of the year 1995 and I am informed that for the last 15 years no slab is put over the disputed drainage. If it is not put it is really a serious dereliction of duty and moreover it is noncompliance of the orders of the Court. I am informed that the length of the drainage is not that much so as to cause apprehension in the mind of the Panchayat to spend much amount. It runs to about 40 feet and it is rather an imperative duty of the Panchayat to place slabs over the same and forget the past days between the Panchayat and the plaintiff. I hope and direct the Panchayat to put slabs over the drainage in front of the plaintiff's house and shop as stated above without much delay. A.S. 625 OF 1999 -9- In the result I confirm the judgment and decree of the Court below and dismiss both the appeal as well as cross-objection but without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 625 OF 1999 -10- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 625 OF 1999 = = = = = = = = = = = J U D G M E N T 15th June, 2010.