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Himachal Pradesh High Court · body

2003 DIGILAW 91 (HP)

D. D. Sharma v. State Of H. P.

2003-04-30

KULDIP CHAND SOOD

body2003
JUDGMENT : Kuldip Chand Sood, J. 1. The plaintiff has laid this suit for the recovery of rupees 15 lacs, on account of damages, caused to his house, due to the excavation of the land by the defendants beneath the property of the plaintiff for the purpose of construction of building "Nirman Bhawan" for the Himachal Pradesh Public Works Department. 2. The case of the plaintiff, as disclosed in the plaint, is : The plaintiff is the owner in possession of the land and residential house, named and styled "Fairy Villa" located opposite Victoria place, Nigam Vihar, Shimla. The defendant-State is the owner of the land "Just beneath the property of the plaintiff. The defendant-State started excavation work through its Contractor, defendant No.4, for the construction of "Nirman Bhawan" in June, 1997. This excavation work was done without taking into consideration the basis engineering standards or soil strata. The defendants overlooked the likely damage, which may be caused to the property of the Plaintiff by the excavation work. Initially, some cracks appeared in the retaining wall of the plaintiffs house, which was brought to the notice of the officers of the defendant-State in the Department of Public Works. No remedial measures were taken by the defendants. 3. It is the case of the plaintiff that due to the acts of negligence of the defendants in excavation of the land, the foundation of the house of the plaintiff was disturbed, which resulted in wide cracks in the walls. The floor in the basement sunk. The retaining wall of the house collapsed and big cracks appeared in the ground floor. The building resultantly has become dangerous and unfit for human habitation. In spite of the notices issued by the plaintiff to the defendants, remedial measures were not taken. The negligence on the part of the defendants in unplanned, haphazard and unscientific excavation of the earth, coupled with the failure of the defendants to follow basis safety norms disturbed the foundation of the basement structure of the plaintiffs house." The entire length of the retaining wall collapsed and the land sunk leaving gaps in the ground." These gaps, in turn, resulted in sinking of the foundation of the building of the plaintiff. The walls had gone out of plumb. The walls had gone out of plumb. The excavation of the earth was undertaken by deploying heavy earth overs with disregard to he safety of the house of the plaintiff, which was located above the land on which the construction was being raised It Is the case of the plaintiff that his house cannot be repaired and it has to be reconstructed after the demolition of the present structure. The minimum amount required for the reconstruction is rupees 15 lacs. According to the plaintiff, he" buttressed" has house in the year 1970 when he purchased it. 4. Plaintiff prays for a decree of damages in the amount of rupees 15 lacs along with future interest at the rate of 18% per annum from the date of the filing of the suit till the realisation of the amount of damages Mandatory injunction is also sought against the defendants for the restoration of the municipal bridle path, which was in existence before 1997 but was damaged due to the excavation of the earth by the defendants. 5. Defendants No.1 to 3 resist the suit. Allegations are controverted. Maintainability of the suit is disputed. It is pleaded that plaintiff has concealed material facts and has not come to the Court with clean hands and suit, therefore, is liable to be dismissed on this ground Value of the suit for the purposes of court fees and jurisdiction is disputed. According to the defendants, the suit is motivated; a false cause of action is pleaded with a view to construct a new building at the cost of public Exchequer. According to the defendants, the building of the plaintiff and already out lived its life and utility. 6. The defendants denied that the land of the defendants, on which construction of "Nirman Bhawan" was being undertaken, is beneath the house of the plaintiff. According to the defendants, the property of the plaintiff is situated towards eastern side of the property of the defendant and there is a distance of 35 feet between the building of the plaintiff and the building raised by the defendants. The construction, it is pleaded, was undertaken in accordance with law and rules after obtaining necessary approval and permission of the competent authorities in accordance with law. Such permission was granted taking into consideration all the necessary factors. The construction, it is pleaded, was undertaken in accordance with law and rules after obtaining necessary approval and permission of the competent authorities in accordance with law. Such permission was granted taking into consideration all the necessary factors. The construction was raised in accordance with the site plan approved by the competent Authority and necessary setback have been left as per sanctioned plan. The suit, it is pleaded, has no merit and liable to be dismissed. It is denied that excavation work was undertaken with heavy earth removers. 7. According to the defendants, the construction of the building was started after examining various technical aspects including the testing of soil strata. The defendant, Public Works Department of the Government of Himachal Pradesh is technically expert Department in the field of construction of buildings and roads with vast para phernelia and therefore, it is misconceived on the part of the plaintiff to allege that construction was doe by the Department without following basis engineering norms. The defendants took all precaution to ensure safety of the properties around the site of construction right from the planning stage. It is denied that any road of the Municipal Corporation was damaged by the defendants and in any event, the Municipal Corporation had never made any grievance that any road has been damaged by the defendants. The suit, it is pleaded, is malafide and filed with the sole motive to construct a hew house at the cost of public exchequer. 8. On the pleadings of the parties, the following issues were settled: 1. Whether the damage was caused to the property of the plaintiff due to unplanned, haphazard and non-technical excavation on the part of the defendants? OPP. 2. If issue No.1 is decided in the affirmative, to what amount of damages is the plaintiff entitled? OPP. 3. Whether the plaintiff is entitled to the mandatory injunction prayed for ?OPP 4. Whether the suit is not maintainable in the present form, as alleged? OPD 5. Whether the plaintiff is guilty of concealment of material facts, if so, what effete? OPD. 5A Whether the suit is properly valued for the purposes of court fees and jurisdiction? OPP 5B Whether the plaintiff has no cause of action to maintain the present suit? OPD 5C Whether the plain is properly verified in accordance with law? OPP/ 5D. Whether the plaintiff is guilty of concealment of material facts, if so, what effete? OPD. 5A Whether the suit is properly valued for the purposes of court fees and jurisdiction? OPP 5B Whether the plaintiff has no cause of action to maintain the present suit? OPD 5C Whether the plain is properly verified in accordance with law? OPP/ 5D. Whether the suit is bad for non-compliance with the provisions of Section 80, C.P.C. ? if so, its effect? OPD 5E Whether the defendants have taken precautions to ensure the safety of the private property of the plaintiff? If so, its effect? OPD. Relief. 9. I have heard the learned counsel for the parties and gone through the record in detail. My findings on the various issues are: Issues No.1 and 5-E. 10. Both these issues being interlinked are taken up together. The case of the Plaintiff is that Defendant-State, to construct Nirman Bhawan, started excavation of the land beneath the property of the plaintiff in June, 1997. The excavation work was undertaken overlooking the damage which was likely to be caused to the property of the plaintiff by excavation of the land, which resulted in cracks in the retaining wall of the Plaintiff and which will ultimately caved in. By this negligent excavation of the land, the foundation of the house of the plaintiff was disturbed and wide cracks appeared in the walls of the building of the plaintiff. The flow in the basement too sunk. The building resultantly has become unfit for human habitation. It is the further se of the plaintiff that in spite of notices to the defendants, no remedial measures wee taken. 11. Plaintiff appearing as PW-1 states that the excavation work was undertaken with the help of the mechanical excavation which resulted in caving of the retaining wall of the property and damage to the property of the plaintiff. It is his evidence that he approached the Engineers of the defendants verbally as well as in writing but without any response it is his evidence that the purchased this property in the year 1970 when the building was about 35 years of age. He admits in cross-examination that there is no evidence on record to show when the building was constructed by the previous owner. He admits in cross-examination that there is no evidence on record to show when the building was constructed by the previous owner. Plaintiff also admits that he was unable to prove as to what improvements were carried out by him in the property after its purchase. He admitted that he never raised any objection regarding the construction of the proposed building by the defendants either with the Municipal Corporation or the Town and Country planning. 12. Bhagat Ram (PW-2) lives in the neighbour hood of the plaintiff. It is his evidence that the building under construction by the Public Works Department resulted in the damage of the path of the Municipal Corporation. It is his further evidence that the retaining wall of the plaintiff fell down and cracks started appearing in the building though he admits that there were heavy rains, which caused extensive damages Gur Partap (PW-3) is a tenant of the plaintiff. It is his evidence that Bulldozer was used by the Contractor of the Public Works Department, which caused cracks in the building of the plaintiff. He too admits in his cross-examination that there were heavy rains when the cracks appeared in the building of the plaintiff. He further admits that the retaining wall fell down because of the heavy rains as a result of excavation. R.B Saxena (PW-4) is a retired Executive Engineer. He was engaged by the plaintiff to assess the damage cause to his property. He does not say any thing about the damage having been caused to the property due to any negligence on the part of the defendants. He merely states that he prepared the estimates in terms of Exhibit PW-4/C and Technical Report Exhibit PW-4/B. In cross-examination, he admits that he had not assessed the age of the building. He admits that the cost of retaining wall as assessed by him amounting to rupees 1,31,554/- is the reconstruction cost of the retaining wall. According to him, the building was damaged by the works undertaken by the Public Works Department, as it was the responsibility of the Pubic Works Department to see that no damage is caused to the building. The evidence discussed above, does not prove the at damage to the building of the plaintiff was caused due to any negligence on the part of the defendant-State. The evidence discussed above, does not prove the at damage to the building of the plaintiff was caused due to any negligence on the part of the defendant-State. Merely because the excavation for the purpose of construction was undertaken by the defendants would not show that such act was negligent. 13. DW-1 Mr. D.S. Chauhan, Assistant Engineer of the Himachal Pradesh Public Works Department has assessed the age of the building to be 100 years. In his opinion, the cracks in the building of the Plaintiff developed due to the settlement of the foundation of the building. The Expert produced by the Plaintiff Mr. R.B. Saxena ((PW-4) has not said anything about the age of the building. In cross-examination, Mr. D.S. Chauhan (DW-1) is categorical that before excavating the land for the purpose of constructing the pillars, the soil was tested to consider the suitability of the soil to take the load structure and it was only on the basis of the soil testing report that design for foundation was prepared. Pardeep Chauhan, Executive Engineer (DW-2) was the Engineer-in- charge of the construction of Nirman Bhawan. It is his evidence that before the work of construction was undertaken, the soil was tested to see whether it was suitable for the proposed construction or not. It is his evidence that he is a Civil Engineer with a degree in this Discipline. He also states that the approximate age of the building of the plaintiff is about 100 years. The house of the plaintiff is constructed in wood, mud, stone and cement work and the life of such construction is 60 to 70 years. He further states that the construction of Lok Nirman Bhawan was undertaken about 50 feet away from the building of the Plaintiff towards the western side. Below the building of the Plaintiff, thee is a land of the Plaintiff, which extends to the main road. It is his evidence that he visited the house of the Plaintiff. It is his evidence that he visited the house of the Plaintiff in June or July 1997 and was shown some minor hair cracks by the Plaintiff. It is his further evidence that these cracks were not caused because of the construction being raised by the defendant-Public Works Department. The cracks, according to him, appeared because of the old age of the building and affect of rains. It is his further evidence that these cracks were not caused because of the construction being raised by the defendant-Public Works Department. The cracks, according to him, appeared because of the old age of the building and affect of rains. He states that pits wee excavated manually as well as by excavator. According to him, cutting towards Shimla side was done by mechanical excavator-cum-loader, whereas, the other pits wee cut manually. In cross-examination, he reiterates that he visited the house of the plaintiff on a complaint made by the Plaintiff and found some minor cracks which according to him, could have been in existence before the defendant-Public Works Department undertook the excavation work. He denies the suggestion that he assured the Plaintiff that remedial measures will be taken so that no damage will be caused to his property. He reiterates that precautionary measures to avoid any damage to the building of the plaintiff were taken and no construction was undertaken below the land of the Plaintiff. He maintains that cutting work towards the house of the Plaintiff was done manually in a systematic manner. Nothing material has come in cross-examination. To a similar effect is the statement of Sita Ram Verma (DW-3), Junior Engineer, who was the Engineer at site at the relevant time. According to him, the building was not damaged due to the construction of Nirman Bhawan. The construction site was not levelled in one go. At a time, surface of two columns were only levelled and after construction of the columns diaphragm wall was constructed between the pillars and thereafter other column were laid. The diaphragm wall was raised towards the hillside to protect the building of the defendant-Public Works department under construction. It is his evidence that the building of the plaintiff is old and the cracks in the building could be due to various reasons including the settlement of the soil, rains and old age of the building. There is nothing tangible in the cross-examination of this evidence. 14. The evidence on record discussed above does not show that the retaining wall caved in due to the excavation of the pits by the defendant-Public Works Department or any negligent act on the part of the defendants. There is nothing tangible in the cross-examination of this evidence. 14. The evidence on record discussed above does not show that the retaining wall caved in due to the excavation of the pits by the defendant-Public Works Department or any negligent act on the part of the defendants. In act, no evidence has been led by the plaintiff in this respect except making an omnimus statement that the excavation has resulted in the caving in of the retaining wall and appearance of cracks in the building. 15. This apart, as discussed earlier, the building of the plaintiff is thirty five feet away from the construction site of Nriman Bhawan. The plea of the plaintiff that the construction site was just beneath the building of the plaintiff is against the weight of the evidence on record. The plaintiff has not produced on record any site plan, which may show that the construction site was just below the building of the plaintiff. The plaintiff has filed drawing of his house, which does not indicate the site where the construction was undertaken by the defendant-Public Works Department. Even the photographs produced by the Plaintiff do not show that the site of construction is beneath the house of the Plaintiff as maintained by the plaintiff m his plaint. Photograph Exhibit PW-1/D4 shows that no column is raised by the defendant-Public Works Department beneath the building of the plaintiff. In fact, such columns are on the left side of the plaintiffs building at a lower level. The site plan filed by the defendants, which is not disputed by the plaintiff, show the building of the plaintiff and Nirman Bhwan under construction. The last column of the building under construction "Nirman Bhawan is at a distance of 35 feet from the plaintiffs building. In the face of this evidence on record, it cannot be said that damage was caused to the property of the plaintiff due to the excavation of the pits by the defendants for the construction of Nriman Bhawan. No negligence is attributable to the defendants in the excavation of the pits for raising columns particularly when it is proved that the building of the plaintiff is more than 70 years of age and is kutcha built in mud missionary. 16. No negligence is attributable to the defendants in the excavation of the pits for raising columns particularly when it is proved that the building of the plaintiff is more than 70 years of age and is kutcha built in mud missionary. 16. This apart though it is true that an owner of a land has a natural right to support by the subjacent and adjacent soil, which may belong to another person, but such a right extends only to the land in its natural state, which is not weighted with walls or buildings. The right to support for a building from adjoining land is not a natural right though such a right is capable of being acquired by grant, prescription or as an easement contemplated under Section 15 of the Easements Act, 1882. 17. Plaintiff does not claim acquisition right of support to his building on the grounds of prescription or grant. Section 7 of the Easements Act gives a right to every owner of immovable property to enjoy and dispose of The same without disturbance by another of natural advantages arising from the situation of the immovable property. Illustration to Section 7 stipulates that the land for which the right of support of subjacent and adjacent soil is sought should not have been subjected to artificial pressure which includes construction on such land explanation to illustration (e) provides that the land is in its natural condition when it is not excavated and has not subjected to artificial pressure and the "subjacent and adjacent soil" mentioned in this illustration means such soil only as in its natural condition would support the dominat heritage in its natural condition. In other words, a landowner has the right to support his land in natural state in unburdened condition without artificial pressure of the building erected on such land. 18. Lord Tenterden in Wyatt v. Harison in (1832) 3B AD 871 said," It may be true that if my land adjoins that of another, and I have not, by building, increased the weight upon my soil, and my neighbordings in his land, so as to occasion mine to fall in, he may be liable on action.- Thus, the plaintiff would have natural right for the support of his land from the adjacent and subjacent soil only if he had not built any structure on that land. The natural right does not extend to the support of land burdened with building. 19. In Bengal Provincial Ry. Co. Ltd. v. Rajani Kanta De and others, A.I.R. 1936 Calcutta 564, the Defendant company burrow pits on their land. The plaintiffs had their hut near the pit of their land. However, they replaced their hut by a masonry building. The building so raised was close to the pit. The pit was deepened by the company. After the rain set in, the cracks appeared in the building. The plaintiff laid a claim for damages from the Railway company for the damage caused to their building. On these facts, it was held that though there is a natural right of support from the neighbours land but that right is only in respect of land of unburdened and natural state". It was held: "An owner has got no right for the support of his building or of his land burdened with the additional weight of his building unless such a right has been acquired as an easement. If there is no easement, to have lateral support of his building, on his neighbours land, the neighbour is within his rights to make excavations on his own land, and provided that he does not act negligently he is not liable at all for damages caused to the building of his neighbour" 20. Plaintiff, in my view, may have suffered manages by defendant's wrongful act. He cannot recover the damages, which the law does not recognise or allow. 21. To conclude, the plaintiff has failed to prove that damages to his building were caused due to the negligent excavation of the pits by the defendants in their land. The issues are accordingly decided. Issue No.2. 22. As the plaintiff has failed to prove any damages to his building due to the acts of the defendants, therefore, there is no question of plaintiff being entitled to any damages. Issue is accordingly decided. Issue No. 3, 5A & 5C. 23. These issues were not pressed during the course of hearing. The issues are decided against the plaintiff. Issue No. 4, 5, 5B & 5D. 24. These issues were not pressed by the defendants during the course of hearing. Therefore the same are decided against the defendants. 25. In view of my findings above, the suit of the plaintiff fails and is dismissed. The issues are decided against the plaintiff. Issue No. 4, 5, 5B & 5D. 24. These issues were not pressed by the defendants during the course of hearing. Therefore the same are decided against the defendants. 25. In view of my findings above, the suit of the plaintiff fails and is dismissed. There will be no order as to costs.