IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA Nos. 353 and 396 of 2006 Judgment reserved on 29.12.2009 Date of Decision : _05.01.2010 __________________________________________________________ 1. RFA No. 353 of 2006 Manohar Dass (deceased) ….Appellants through LRs. Versus Agro Ind.Packaging Ind.Ltd. ….Respondent. 2. RFA No. 396 of 2006 Agro Ind. Packaging Ind.Ltd. ….Appellant. Versus Manohar Dass (deceased) ….Respondents. through LRs. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1No. __________________________________________________________ RFA No. 353 of 2006 For the Appellants: Shri Ajay Kumar, Advocate. For the Respondent: Shri Hamender Chandel, Advocate. RFA No. 396 of 2006 For the Appellant: Shri Hamender Chandel, Advocate. For the Respondents: Shri Ajay Kumar, Advocate. __________________________________________________________ Dev Darshan Sud, J. These two appeals are being disposed of by a common judgment as they arise out of the same judgment and decree passed by the learned trial Court in a suit instituted by the appellant in RFA No. 353 of 2006. The plaintiff- 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 appellant therein instituted suit for recovery of Rs. 8,76,000/- alongwith interest on the allegations that he is owner in possession of land comprised in Khasra No. 550 to 554 situated at mauja Ghonda, Tehsil Kotkhai, District Shimla. He pleads that his forefathers had constructed a Bund (a dam) on the perennial source of water i.e. Ghagaoti river to irrigate their lands and two Gharats (water mills) were built by them on Khasra No. 550. These Gharats were used to run on the water released from the dam. They were used for grinding wheat, corn etc. In 1989 the defendant set up a manufacturing plant for corrugated card board cartons near the property of the plaintiff. They approached the plaintiff for permission to divert water from the Bund through Khasra No. 555 and asked for permission for construction of desiliting and sedimentation tanks and to carry water from the tanks in GI pipes through the land of plaintiff in Khasra No. 554 to their factory where it would be used in the manufacturing process. The plaintiff submits that it was agreed to between the parties that sufficient water would be left for him to irrigate his lands and permanent employment would be given to one of his sons. In addition, he would be compensated for the damage caused to his land, fruit plants and water mills etc. In case of the defendant not complying with any of these conditions, it was agreed that permission granted by the plaintiff could be withdrawn by him. After the defendant had constructed the tanks etc. laid the pipes and also diverted the water, it refused to honour the commitments made to the plaintiff. Subsequently, the defendant had filed a suit for permanent prohibitory injunction against the plaintiff in the Court of Sub Judge, Theog for grant of injunction restraining the plaintiff from interfering in the free flow of water and its utilization by the plaintiff. The suit was dismissed and an appeal preferred before the learned Additional District Judge, Shimla. During the pendency of this appeal, a compromise Ext.P3 was entered into between the plaintiff and the defendant. It was agreed therein that the land of the plaintiff including the water tanks used for storing the water of the dam would be acquired by the defendant 3 herein and the plaintiff would be paid compensation for damage to the land and crops etc. All suits etc. would be deemed to be withdrawn. Ext.P3 contains the details of the terms of the compromise. The defendant did not adhere to the compromise and the plaintiff was again constrained to file a petition in the High Court under Artcile 226 of the Constitution of India. Civil Writ Petition No. 1223 of 1996 was filed on 5th June, 1996 praying for an appropriate writ for assessment of damages etc. By its order dated 16.7.2002, this Court held “16.7.2002 Present: Mr. Ashwani Sharma, counsel for the petitioner. Mr. Rakesh Kanwar, counsel for respondent No.1. Mr. Sanjay Karol, Advocate General with Mr. R.M. Bisht, AAG, for respondent No.2. After the matter was heard for some time, learned counsel for the petitioner stated that looking to the stand of the respondents in their reply and keeping in view the compromise arrived at between the parties in Civil Appeal titled as H.P Agro Industrial Packaging India Ltd. Vs. Manohar Lal, he has instructions not to press this writ petition at this stage. He further stated that liberty may be reserved to the petitioner to have such recourse as may be available to his client under law including filing of civil suit. Since the petitioner was bonafide prosecuting the present writ petition, he further submitted that it may also be ordered that limitation will not come in the way of his client in case he files any lis for redressal of his claim as projected in this petition. Looking to the facts and circumstances of this case and prayer made, as noted above, this petition is allowed to be withdrawn and is finally disposed of as such. So far grant of benefit of limitation during the period petitioner was prosecuting the present writ petition is concerned, as and when such prayer is made before the forum that may be approached by the petitioner, shall be considered and dealt with in accordance with law. Disposed of accordingly. Sd/- W.A. Shishak, C.J. Sd/- July 16, 2002 A.K. Goel, Judge.” The suit out of which the present appeal arises was instituted by the plaintiff in the Court of learned District Judge (Forest), Shimla who has the pecuniary jurisdiction to try the suit. After recording evidence, the learned Court 4 decreed the suit for Rs. 3,94,200/- alongwith interest. In reaching this conclusion, the learned Court below relies upon the detailed report of the Patwari Halqua Ext.PW4/A which put the loss of the plaintiff at Rs. 43,800/- per annum as income of both the water mills. Before adverting to the submissions made by the learned counsel appearing for the parties, RFA No. 396 of 2006 may be considered. This appeal has been preferred by the defendant against the decree of the learned Court challenging its legality on the ground of limitation. The ground pleaded is that the suit is barred by the provisions of the Limitation Act as the cause of action to the plaintiff according to the defendant arose on 3.2.1996 on which date the Sub Divisional Officer (C ), Theog assessed the total sum of compensation at Rs. 43,800/-. The ground pleaded is that the cause of action again arose in favour of the plaintiff on 20.4.1996 when the amount of compensation of Rs. 43,800/- was paid on the assessment made by the defendant. This submission requires to be rejected out right. The defendant sets up a plea which cannot be countenanced. It is a Government Company registered under Section 617 of the Companies Act, 1956. Although plea of limitation is open to any litigant, but what must not be lost sight of is the fact that the defendant is in a dominating position. Having lost the suit before the learned Sub Judge wherein the injunction was sought for claiming right of usage of the plaintiff’s property, a solemn agreement Ext.P3 was entered into between the parties which the defendant refused to honour, driving the plaintiff to this Court to institute writ proceedings. It is undisputed that the writ petition was instituted on 5.6.1996 and disposed of by an order dated 16th July, 2002 as noticed above. This petition was contested by the defendant Company. The submission that provisions of Section 14 of the Limitation Act are not applicable deserves to be rejected straight away. By no stretch of imagination, can it be stated and considered that the plaintiff was not pursuing his remedybonafide as advised and that this Court did not adjudicate on the submissions made in the writ petition, holding that it may be a matter for a civil suit would itself entitle the 5 plaintiff to claim benefit on the provisions of Section 14 of the Limitation Act. The plea of limitation is therefore rejected. The second submission made is that the plaintiff has not stepped into the witness box and his suit deserves to be dismissed. This submission also requires to be rejected outright as the plaintiff was aged, old and feeble person and unable to attend Court. From the evidence I do not find anything on record to show or suggest that the person who appeared on behalf of the plaintiff was not conversant with the facts of the case or that the plaintiff had deliberately avoided to appear as a witness or that the witness was not authorized by the plaintiff to depose on his behalf. No other point was urged. This appeal is accordingly dismissed. Adverting to the submissions made by the plaintiff in RFA No. 353 of 2006 that the learned Court below was not correct in holding that the water mills functioned for six months only. I do find force in the submissions/contentions of learned counsel appearing for the appellant. It is nobody’s case that the river on which the dam had been constructed by the forefathers of the plaintiff and from which water was driverted to his fields for irrigation as also to the Gharats/water mills for grinding etc. was not a perennial river. The case set up by the plaintiff was not only that the water was being used for running the Gharats but was being used for irrigation purposes also. The trial Court was right in holding that the water mills would not be functional for the entire year. But it was not correct in holding that it would be functional for six months only. Taking into consideration the report Ext.PW4/A which has put the loss at Rs. 46,800/-, it would not be correct to hold that the water mills were used only for six months. Had that been so, the report itself would have made assessment for the period for which the water mills were functional and operative for a particular period. The report assesses the loss for twelve months. Had the operational period been less the report would have stated so considering it has been prepared by a government servant. Taking into consideration the entirety of the facts and circumstances of the case, it would be 6 in the fitness of things to hold that compensation is awarded to the appellant on the basis of Ext.PW4/A holding therein that water mills were functional for at least eight months in a year. This appeal is accordingly allowed to that extent that the period of running the water mills worked out by the trial Court shall be eight months instead of six months. The additional amount of compensation on the basis of the two water mills functioning for eight months in a year works out to Rs. 7,300/- per year, when multiplied by 20, the additional amount of compensation works out to Rs. 1,46,000/- which amount shall carry interest as awarded by the trial Court. On the question of choosing a multiplier for assessing the loss the judgment of the trial Court cannot be faulted with. The defendant had entered into a solemn agreement and promise that the land of the plaintiff would be acquired. If that course was taken which defendant was bound to do, then the plaintiff would be entitled to all the benefits under Section 23(23-1A), 28 and 34 of the Land Acquisition Act, 1894. Applying a multiplier of 20 for loss of income w ould be just and fair and reasonable in the facts and circumstances of the case. The appeal is accordingly allowed to this extent that the plaintiff shall be entitled to this amount in addition what has been awarded by the learned District Judge. Needless to say that this amount shall carry interest at the same rate, which has already been awarded. No other point is urged in this appeal. No order as to costs. January 05, 2010 (Dev Darshan Sud) (ms) Judge