IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 31 of 2000 Date of Decision: 28.6.2010 ________________________________________________________________ Kanta Devi ….Appellant. Versus The Municipal Corporation ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Ashok Sud, Advocate. For the respondent : Mr. K. L. Bali, Advocate. Dev Darshan Sud, J (oral) . This appeal has been filed by the plaintiff challenging the inadequacy of damages as granted by the learned trial Court. 2. The plaintiff/appellant instituted the suit on the allegations that her building was wrongfully demolished by the respondent-Municipal Corporation, which fact has been adjudicated upon and has become final in the suit instituted by the appellant/plaintiff. 3. On the pleadings of the parties, the learned trial Court settled six issues. The first and crucial issue was as to 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. -: 2 :- whether the respondent/defendant had illegally demolished two storeys of Manora House of the plaintiff, Smt. Kanta Devi, which was built on khasra No. 638/403 (old) and present khasra No. 189. The third issue which was intertwined with this issue was as to whether two storeys of the house of the plaintiff, which had been demolished, had been illegally constructed by her. The second issue related to the award of damages. On issues No. 1 and 3, the court held that two slabs (of the three storeyed structure of the appellant/plaintiff) had been demolished by the defendant-corporation on 6.8.1992. DW-2, N.S. Guleria, Junior Engineer of the Corporation, had himself admitted this in his evidence that these two slabs had been pulled down on 5th and 6th August, 1992. 4. On the issue as to whether the construction was illegal, the learned trial court held that a suit for permanent prohibitory injunction restraining the Corporation from demolishing the structure had been passed by the learned Senior Sub Judge (3), Shimla, who had decreed the suit of the plaintiff/appellant by judgment and decree dated 30.6.1989. This was challenged in appeal by the Municipal Corporation which was dismissed by the Additional District Judge on 3.11.1992. Ex. P-1 is the judgment dated 30.6.1989 passed by the Sub Judge First Class (3), Shimla, titled Kanta Devi versus Municipal Corporation, granting a decree for permanent prohibitory injunction restraining the Corporation from demolishing any part of the building etc. Ex. -: 3 :- P-2 is copy of the interim order passed on the application filed by the plaintiff /appellant praying for an order restraining the Corporation from carrying out any demolition. Ex. P-4 is the judgment in appeal passed by the learned Additional District Judge, dismissing the appeal filed by the defendant-Corporation. 5. These facts were not disputed before the courts below. On the question of assessment of damages, the learned trial Court grants a sum of Rs. 66,900/- as the cost of the re-building these two slabs. Learned counsel appearing for the appellant has contested this finding. He submits that PW-5, Shri R. B. Saxena, had prepared the report of re-construction, Ex. P-10 and P-11, and the drawings Ex. P-12. The estimate, according to him, was in detail providing the details of each and every item required. It worked out to Rs. 90,725/-. He states in his evidence that this would be the amount required for the construction of the damaged slabs. The defendants examined DW-1, Shri R.K. Sharma, who states that the total cost of re-construction of the damaged slabs would be Rs. 41,235/- based on his estimates report Ex. DA and DB. 6. Considering the evidence of PW-5, I find from the record that his statement as also the detailed estimate prepared by him has remained un-rebutted. The learned trial Court was not correct in entering into speculative calculations with respect to the amount required for re-instating the appellant/plaintiff to the position in which she was before the time when the demolition was carried out illegally. This witness states that he remained -: 4 :- employed in H.P.P.W.D. as Executive Engineer, where he rendered more than 34 years of service. After his retirement, he was working as a registered Consultant Engineer and Valuer. I do not find anything in his cross-examination which either challenges his professional ability to assess the damage or any question directed to the two reports prepared by him which in any manner negates his evidence that a sum of Rs. 90,725/- was required for re-building those two slabs. In fact, Ex. P-10 and P-11 is a detailed report which could not be brushed aside on speculation. 7. Adverting to the evidence of DW-1, I do not find anything in his evidence which establishes the authenticity of the so called estimates as submitted by him. In his cross-examination, he admits that he did not note the costs of dismantling the damaged structure. His report, to say the least, is incomplete. He states that he did not include the cost of carriage of debris to the dumping site. He admits that the beams and slabs are laid monolithically for correct binding. To say the least, his report is incomplete. 8. In these circumstances, I hold that the findings of the learned trial Court that the plaintiff is not entitled for a sum of Rs. 90,725/- is incorrect. The plaintiff/appellant has established this amount as the sum required for re-building the two slabs. The amount is awarded, accordingly. 9. On the question of recovery of money for loss of Rs. 1,56,000/- for rental income, it is, no doubt, true that the building was unauthorizedly demolished by the respondent - defendant. -: 5 :- Beyond Ex. PW-6/A, which is an agreement proved on record by PW-6, Shri Mohinder Singh Kaloti, the other evidence is that of the appellant. The plaintiff has also examined PW-7, Shri Darbesh Singh, Tax Inspector, who establish the rents of the other buildings in the vicinity and the building which was demolished. The rents vary from Rs. 6,000/- to Rs. 18,000/- per annum. Again, I do not find any effective cross-examination so far as these witnesses are concerned. Adverting to this aspect of the case the learned court holds that PW-2, Shri Om Prakash, the attorney of the plaintiff, has himself admitted that there is no electricity and water in the premises and, therefore, he could not be granted anything on this count. 10. The respondent/defendant cannot be rewarded for the wrongful acts which it has committed. The appellant/plaintiff has the right to claim not only for the damage suffered to the structure but also for the loss sustained on account of the building having remained out of use for the period when it was illegally demolished to the time when it is to be re-builded / re-constructed. This award, based on the findings, has to be a fair estimation and not the windfall. 11. The plaintiff/appellant has tried to establish this loss at Rs. 1,56,000/- and has lead evidence to establish the rental value of the property adjoining her property. There is no evidence to the contrary on the record. The reasoning of the learned trial Court that these damages cannot be granted because there is no electricity or water in the premises cannot be accepted for two -: 6 :- reasons. Firstly, it was the defendant/respondent who had illegally demolished the structure of the appellant and secondly, it was placing hurdles in the way of the appellant in sanctioning the water / electricity connection which fact is established on the record. In these circumstances, I hold that the appellant is entitled to damages for the non-user of the building to which the appellant intended it to put. In these circumstances, the appellant is awarded a sum of Rs. 30,000/-. This appeal is, accordingly, allowed, as held by me on both the issues i.e. Rs. 90,725/- for damages to the structure and Rs. 30,000/- for loss of earning. The judgment and decree of the learned trial court is modified accordingly. There shall be no order as to costs. Let a decree in these terms be drawn up. (Dev Darshan Sud) Judge June 28, 2010 (rajni)