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2006 DIGILAW 172 (HP)

Sahi Ram v. State Of Himachal Pradesh

2006-06-09

SURJIT SINGH

body2006
JUDGMENT : Surjit Singh, J. - Plaintiffs Sahi Ram and his brother Swaran Dass have filed this suit for recovery of a sum of Rs. 12 lakhs, together with interest @ 18% p.a., on account of damages and also for mandatory injunction directing the defendants to provide breast walls/retaining walls of appropriate length, breadth, height and strength below their land, bearing Khasra Nos. 42 and 43, situate in Mauza Up-Mohal Prem Nagar (Shilgaon), Mohal Shilgaon, Pargana Ravi, Tehsil Jubbal, District Shimla. 2. Cause of action, as disclosed in the plaint, may be summed up thus. Plaintiffs are the owners of land, bearing Khasra Nos. 41, 42, 44, 49 and 50, situate in Mauza Up-Mohal Prem Nagar (Shilgaon), Mohal Shilgaon, Pargana Ravi, Tehsil Jubbal, District Shimla. Subjacent to this land of the plaintiffs, there is land, bearing Khasra Nos. 21, 39 and 40, which belongs to the State of Himachal Pradesh, i.e. defendant No. 1. Sometime in the year 1988, a narrow Katcha road was constructed by the defendants on land, bearing Khasra Nos. 21 and 39, owned by defendant No. 1. In the year 2001, the defendants started widening this road, just below the above described land of the plaintiffs. The excavation for the purpose of widening the road was done in a negligent, haphazard and unscientific manner, both manually and mechanically, using heavy bulldozers, as a result of which the strata of the land of the plaintiffs got destabilized. Plaintiffs approached the engineers of the defendants, who carried out the excavation work, not to use heavy bulldozers and to provide protection to the property of the plaintiffs by erecting breast walls and retaining walls. They are assured that soon after the completion of excavation appropriate measures would be taken for the protection of the property of the plaintiffs, but nothing was done, except for providing a small katcha breast wall, measuring 7.5 m in length and 2.5 m in height. Because of the loosening of strata on account of indiscriminate excavation, some landslides took place in the year 2001 itself. The officials of the defendants were again approached with the request to provide protection to the property of the plaintiffs. Assurances were held out but nothing substantial was done on the spot. Because of the loosening of strata on account of indiscriminate excavation, some landslides took place in the year 2001 itself. The officials of the defendants were again approached with the request to provide protection to the property of the plaintiffs. Assurances were held out but nothing substantial was done on the spot. During the winters of 2001-2002 and 2002-2003, major landslides occurred, when it rained and snowed, and as a result of those landslides a large number of fruit trees of apples and peach, both of bearing and non-bearing age, got uprooted and buried under the debris and house of plaintiff No. 2 Swaran Dass also developed cracks. The foundation of the retaining wall provided by plaintiff No. 2 for the protection of his house also got exposed, putting not only that wall but also the house in perilous situation. The plaintiffs got the site inspected from an engineer, who, after inspecting the spot, gave a report as also worked out the estimated cost of providing protection to the property of the plaintiffs. It is alleged that though the damage caused to the plaintiffs is enormous, they have restricted their claim to Rs. 12 lakhs only. They have also prayed for mandatory injunction directing the defendants to provide protection walls for the safety of their property, in terms of the report of the engineer, who visited the spot at the instance. 3. Defendants have contested the suit. They have stated that the suit is not maintainable since writ petition filed by the plaintiffs earlier in point of time is pending. It is also alleged that the plaintiffs have no cause of action and are also estopped by their own acts and conduct from filing the suit. As regards the merits of the case, they do not deny having widened the road on the spot in the year 2001, but they do deny that damage has been caused to the property of the plaintiffs, because of the excavation carried out by them. They have pleaded that the houses of the plaintiffs are at a distance of about 70m from the road. It is denied by them that when the road was being widened and excavation carried out, the plaintiffs protested against the excavation and requested for providing retaining walls and breast walls for the protection of their property. They have pleaded that the houses of the plaintiffs are at a distance of about 70m from the road. It is denied by them that when the road was being widened and excavation carried out, the plaintiffs protested against the excavation and requested for providing retaining walls and breast walls for the protection of their property. They have stated that normal excavation was carried out and that the damage, if any, to the property of the plaintiffs occurred because of heavy snowfall and heavy rains that took place during the winters of 2001-2002. They deny that the excavation was done in haphazard, unscientific or reckless manner. It is also pleaded by them that they have provided a breast wall for the protection of the property of the plaintiffs and the length of that wall is 7.5m and height is 3.75m. 4. On the pleadings of the parties, following issues were framed : 1. Whether the plaintiffs suffered loss/damage on account of negligent acts of defendants as alleged in the plaint, if so its effect ?...OPP 2. If issue No. 1 is proved in the affirmative, whether plaintiffs are entitled to recover the suit amount by way of damages with interest on it, if so, at what rate and/or for any other amount on account of damages, if so, how much ? ...OPP 3. Whether the plaintiffs are entitled for relief of mandatory injunction as prayed for ? ...OPP 4. Whether the plaintiffs are owners in possession of the suit land or any portion thereof ? ...OPP 5. Whether the suit is not maintainable in its present form as alleged by the defendants ? ...OPD 6. Whether the plaintiffs are estopped from filing the present suit because of their act, conduct and acquiescence and if so, its effect ? ...OPD 7. Whether the plaintiffs have a subsisting cause of action to file and maintain the present suit ? ...OPD 8. Whether the present suit is liable to be stayed in view of the pendency of CWP 740/2002 ? ...OPD 9. Relief. 5. Both the parties have adduced evidence to prove their respective pleas and to rebut the evidence of each other. Having heard the learned Counsel for the parties and perused the record, I proceed to record my findings on the aforesaid issues. Issues Nos. 1, 2 and 3. 6. ...OPD 9. Relief. 5. Both the parties have adduced evidence to prove their respective pleas and to rebut the evidence of each other. Having heard the learned Counsel for the parties and perused the record, I proceed to record my findings on the aforesaid issues. Issues Nos. 1, 2 and 3. 6. All the three issues are taken up together for discussion as the evidence, by which they are intended to be proved by the plaintiffs and disproved by the defendants, is the same. 7. Admittedly, the road exists on the land belonging to the defendants. Initially, there was constructed a narrow road on the site sometime in the year 1988. There is a hairpin (??) being Khasra Nos. 42 and 44, owned by the plaintiffs. This hairpin bend was admittedly widened by the defendants in October, 2001. Plaintiffs further allege that the excavation by means of bulldozers was done in a reckless, haphazard, unplanned and unscientific manner. Defendants deny the allegation. 8. In order to substantiate their allegation that the excavation was done in an unplanned and unscientific manner and that no protection was provided for the adjoining property of the plaintiffs, which is at a level higher than the level of the road along the up-slope. The plaintiffs have examined five witnesses, including one of them, besides proving the report of damage prepared by an engineer engaged by them and certain photographs and the report and Tatima prepared by a Patwari. 9. PW-1 Kamal Chand Negi, Patwari, has testified that he went to the spot in February, 2002, on the direction of the Tehsildar to submit the report about the damage caused to the property of the plaintiffs due to landslides and that he submitted the report Ex. D-1 and Tatima Ex. P-1 to the Tehsildar. He states that he noticed the landslide below the houses and the land of the plaintiffs and saw a number of apple trees, aged about 13-14 years, lying uprooted/damaged due to the landslide. As per the report Ex. D-1 submitted by this witness, due to heavy rain and snowfall, which increased the flow of water, portions of Khasra Nos 42 and 44, owned by the plaintiffs, had slid and the trees standing on those portions got uprooted and buried under the debris. Those portions, as per report, are shown by Khasra Nos. 42/1 and 44/1 in the Tatima Ex. Those portions, as per report, are shown by Khasra Nos. 42/1 and 44/1 in the Tatima Ex. P-1 and their total area works out to 719 sq. mtrs. Number of trees damaged as a result of the landslide is also mentioned in the report. The report further reads that because of the landslide the distance between the excavated upper edge of the hill and the house of plaintiff No. 2 Swaran Dass had got reduced to just 9 m and one of the walls of the kitchen had developed some cracks. 10. PW-2 Diwan Chand took the photographs Exs. P-3 to P-6. According to these photographs, particularly photograph Ex. P-6, in which both the starting points of the slide and the house of plaintiff No. 2 are covered, the slide had taken place vertically below the house of plaintiff No. 2. 11. PW-3 H.S. Bisht, a retired Executive Engineer from Himachal Pradesh Public Works Department, has testified that he visited the spot and recorded his observations in his report Ex. P-11 and the site plan Ex. P-12. He has stated that he noticed that a landslide had occurred at a point 9m below the house of plaintiff No. 2. As per report Ex. P-11 given by this witness, at the site of the hairpin bend strata was loose and cutting had been made drastically to a height of 8m, but no support was provided on the hill side for the protection of the property above the site of the cutting. It is stated in the report that though there was a retaining wall, 17m long and 4m in height, but that was not enough to protect the land and the houses of the plaintiffs and that in fact 30m long and 8m high breast wall was required to be constructed. He gave the estimates of the walls and check-walls, required to be constructed for the protection of the land and the houses of the plaintiffs, the estimated cost of which is stated to be Rs. 8,34,300/-. 12. PW-4 Sahi Ram, one of the plaintiffs, has stated that while widening the hairpin bend on the spot, the width of the road was increased to 50 feet, for which excavation was carried out and that this excavation made the property of the plaintiffs landslides-prone to an extent of 30m lenght-wise. He stated that height-wise the excavation was carried out upto 30 feet. He stated that height-wise the excavation was carried out upto 30 feet. He stated that a protection wall, 21 feet in length and 10 feet in height, was provided by the defendants but that was not enough for the protection of the plaintiffs' property. He further stated that because of the failure on the part of the defendants to provide protection all along the exposed side of the hill, huge landslides occurred resulting in damage to a large number of fruit bearing and non-fruit bearing apple and pear plants and cracks in the walls of the newly constructed house of defendant No. 2 and also the retaining wall constructed by plaintiff No. 2 for the support of the house. 13. PW-5 Rajiv Mahantan has stated that he was the Vice-President of the Panchayat at the relevant time and that when the damage to the property of the plaintiffs took place, he was called to the spot by the plaintiffs and he found that just above the site where the road had been widened by the defendants, a big slip had occurred resulting in damage to the land and the apple trees standing thereon, besides damaging the house of plaintiff No. 2. 14. Defendants have examined a Junior Engineer, named Prem Pal Sharma, under whose supervision the work of widening the road was executed. The witness, who has appeared as DW-1, states that the house of plaintiff No. 2 is situated at a distance of 70m from the site of excavation. He has further stated that touching the last point of excavation there is Government land and the property of the plaintiffs is 10m beyond that property. He has stated that a breast wall was provided at the spot and a plan Ex.DA and estimate Ex.DB of that wall were prepared. He has further stated that the wall still exists on the spot and it is 7.5m in length and 3.75m in height. According to him, the wall was erected in October, 2001. He has stated that in February, 2002 there were heavy rains and snowfall and because of such rains and snowfall landslide occurred at a point 9m below the house of plaintiff Swaran Dass. 15. According to him, the wall was erected in October, 2001. He has stated that in February, 2002 there were heavy rains and snowfall and because of such rains and snowfall landslide occurred at a point 9m below the house of plaintiff Swaran Dass. 15. The testimony of the witnesses of the defendants, namely, DW-1 Prem Pal Sharma, as regards the distance between the site of excavation and the house of plaintiff No. 2 and that between the land of the plaintiffs and the point of hillside upto which excavation was done, there is a strip of Government land about 10m wide, has gone unchallenged and, therefore, there should be no reason to disbelieve the same. Plaintiff's own witness PW-3, Shri H.S. Bisht, has said that the height upto which cutting has been made by the defendants for widening the hairpin bend is 8m. He has further stated that a landslide had taken place at a point 9m below the house of plaintiff No. 2. 16. It is the plaintiff's own case that the house of plaintiff No. 2 was constructed in the year 1999 and below that house a retaining wall was also constructed. The site of this retaining wall is shown in Ex. P-12, proved by PW-3 H.S. Bisht. Plaintiffs have not led any scientific evidence in support of their allegation that the strata of the slope on which their house stands got loosened/destabilized, on account of the excavation carried out by the defendants. On the contrary, their witness, PW-3 H.S. Bisht, has stated that the strata was already loose and that in view of this fact the defendants should not have carried out the excavation without taking precautionary measures, to ensure that rain or snowfall did not cause any damage to the property of the plaintiffs. This statement suggests that the strata of the hill facing the road, in question, is constitutionally loose. 17. From a conjoint reading of the testimony of DW-1 Prem Pal Sharma, PW-3 H.S. Bisht and the report Ex. P-12, it can legitimately be concluded that no destabilization of the strata of that slope of the hill, which faces the road and on which there stand the houses of the plaintiffs, has taken place. The photographs, particularly Ex. P-6 also gives the impression that strata of the hill is made of loose soft soil, stones and rubble etc. P-12, it can legitimately be concluded that no destabilization of the strata of that slope of the hill, which faces the road and on which there stand the houses of the plaintiffs, has taken place. The photographs, particularly Ex. P-6 also gives the impression that strata of the hill is made of loose soft soil, stones and rubble etc. and that its destabilization has not taken place. 18. Now, when it has been concluded that no destabilization of the strata of the slope of hill facing the road, had taken place and the evidence of PW-3 H.S. Bisht, a witness of the plaintiffs themselves, suggests that the sliding of the land started from a point just 9m below the house of plaintiff No. 2, while the height of the said house from the road is 70m, per unchallenged testimony of DW-1 Prem Pal Sharma, and the cutting for widening the road was upto a height of 8 m only, accordingly to the testimony of PW-3 H.S. Bisht, there should not be any hesitation in jumping to the conclusion that the cause of the landslide was not excavation done by the defendants for widening the hairpin bend and that in fact the landslide took place due to heavy rain and snowfall, as pleaded by the defendants. The fact that there had been heavy rains and snowfall, during the winters of 2002, is testified by PW-1 Kamal Chand Negi, Patwari, and also finds mention in his report Ex-D-1. 19. It may not be out of place to notice that the house of plaintiff No. 2, below which the landslide occurred, had been constructed only in the year 1999. The house has a slab of concrete and iron bars and is, therefore, supposed to have put a lot of burden on the site. A retaining wall was also provided below this house and this wall is also supposed to have put burden on the slope. Maybe that, because of the extra weight put on the soil in the form of the house and the retaining wall, the soil at a level a little lower than that of the retaining wall gave way, when it rained and snowed heavily. 20. Maybe that, because of the extra weight put on the soil in the form of the house and the retaining wall, the soil at a level a little lower than that of the retaining wall gave way, when it rained and snowed heavily. 20. The net result of the aforesaid discussion is that the damage to the property of the plaintiffs, just below the house of plaintiff No. 2 or damage to the fruit plants of the plaintiffs cannot be attributed to the widening of the hairpin bend. However, the evidence on record, as discussed hereinabove, is enough to hold that the defendants have not provided requisite protection for the property of the plaintiffs, just above the point upto which hillside has been excavated/cut for widening the road. There is unchallenged testimony of PW-3 H.S. Bisht that cutting upto a height of 8m had been carried out below the property of the plaintiffs to a length of 30m. The defendant's own case is that they have provided 7.5m long and 3.75m high create retaining wall. Now, when the length of the property above the cutting is 30m and the height is 8m, a retaining wall of just 7.5m length and 3.75m height cannot provide due protection to the property of the plaintiffs. PW-3 H.S. Bisht has stated that 30m long and 8m high retaining wall is required to be provided for protecting the slope on the upper side of the road. 21. It is true that the evidence led by the plaintiffs does suggest that damage had been caused to some fruit plants due to the landslide, which occurred below the house of plaintiff No. 2, but as already noticed, the cause of that landslide was not the excavation carried out by the defendants for widening the hairpin bend but heavy rains and snowfall which was probably aggravated by the burden of the house of plaintiff No. 2 and the retaining wall constructed by him in the year 1999. Otherwise, also, the plaintiffs have not led any evidence with regard to the quantum of damage in momentary terms sustained by them due to damage to the plants and soil. 22. As a sequel to the above discussion, issue Nos. Otherwise, also, the plaintiffs have not led any evidence with regard to the quantum of damage in momentary terms sustained by them due to damage to the plants and soil. 22. As a sequel to the above discussion, issue Nos. 1 and 2 are found against the plaintiffs, while issue No. 3 is found in their favour and it has held that the defendants are liable to be mandated by a decree of injunction to provide 30m long and 8m high retaining wall to provide protection against the cut side of the hill starting from the level of the road, below the land of the plaintiffs. Issue No. 4 23. There is no dispute that the plaintiffs are the owners of the property, the protection of which is sought by means of a decree of mandatory injunction. The fact is admitted even by DW-1 Prem Pal Sharma. So, the issue has been found in favour of the plaintiffs. Issue No. 5. 24. In view of the findings on issue Nos. 3 and 4, the issue has been found against the defendants. Issue Nos. 6, 7 and 8 25. No submissions were made with regard to these issues during the hearing of the matter. So, all these issues have been found against the defendants. Relief. 26. In view of the above findings, the suit of the plaintiffs is partly decreed and a decree of mandatory injunction directing the defendants to provide a retaining wall all along 30m excavated length of the hill slope upto a height of 8m to provide protection to the property of the plaintiffs, situated above the hairpin bend is passed. Rest of the claim is dismissed. Decree sheet be drawn accordingly.