Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 284 (GAU)

State of Mizoram and Ors. v. Lalmuankima

2012-02-29

S.R.SEN

body2012
1. The instant first appeal directed under order 41 read with section 96 of the Code of Civil Procedure as well as section 17 of the Mizoram Civil Court Act, 2005 against the Judgment and Order dated 1.3.2011 passed by the Learned Senior Civil Judge, Aizawl District, Aizawl in Damage Suit No. 2 of 2007. 2. The brief fact of the case in nutshell is that, the respondent was having a garden under Periodic Patta No. 30/F of 1982, where he planted fruits trees, fish ponds as well as rice cultivation. Appellants constructed an approach road to their water source which was meant for the entire village. Due to said construction of road respondent claimed that he had suffered great loss as his fish pond, rice cultivation, trees were completely damaged. Thereafter, respondent filed the writ petition before the Aizawl Bench of the Gauhati High Court claiming compensation at the tune of Rs. 6 lakhs for the said damage caused to him. 3. The writ petition was finally disposed of by the hon'ble High Court vide order dated 17.3.2005 directing the respondent to approach the Civil Court for redressal of his grievances. Accordingly, respondent filed a Damage Suit before the Additional Deputy Commissioner, Aizawl District, Aizawl and the same was registered as Damage Suit No. 2 of 2007. Then the case was contested between the appellants and the respondent and finally the learned trial court below was please to award compensation at the tune of Rs. 6 lakhs along with 30% solatium and 12% interest. On being aggrieved by the said judgment and order dated 1st March, 2011, the appellants have preferred this first appeal before this court. 4. Learned Addl, Advocate General, Mizoram, Mr. A.K. Rokhum submitted that the land in question occupied by the respondent is under Periodic Patta, which means it has been given for a specific period. So, from that point of view respondent is not entitled for any compensation. The learned Addl. Advocate General, Mizoram strongly argues that most important question in this case how the Learned Senior Civil Judge has come to conclusion that the loss caused to the respondent is at the tune of Rs. 6 lakhs and how can a 30% solatium and 12% interest can be awarded. These are not reflected in the Judgment and Order dated 1.3.2011 passed by the Learned Senior Civil Judge. 6 lakhs and how can a 30% solatium and 12% interest can be awarded. These are not reflected in the Judgment and Order dated 1.3.2011 passed by the Learned Senior Civil Judge. So, the impugned Judgment passed by the Learned Senior Civil Judge is bad both in fact and law and need to be set aside. 5. On the other hand, learned counsel for the respondent, Mr. R. Thangkanglova appeared and submitted that due to construction of the road by PHE, Government of Mizoram huge loss was caused to the respondents pertaining to his fruits trees, fish pond and rice cultivation and damage is much more higher than the compensation awarded by the learned Senior Civil Judge. Actual loss caused to the respondent was at the tune of Rs. 12 lakhs. He also further argued that the point raised by the learned Addl. Advocate General, Mioram before this court was not raised before the learned trial court, so there is nothing wrong in the judgment and order dated 1.3.2011. 6. After hearing the submission made by both the learned counsel appearing for the appellants as well as the respondent, the question arise before this court is that, whether the compensation for damage awarded to the respondent is on the basis of certain assessment by the authority or it is just mechanical or imaginary assessment. I have perused the impugned judgment and order dated 1.3.2011 passed by learned Senior Civil Judge, Aizawl and after going through the said judgment, I did not find mention anywhere how the assessment was done, and who conducted the survey and prepare the assessment. 7. In my considered view when the damage was caused to the fruit trees, fish pond and rice cultivation of the respondent, he should have approached the Deputy Commissioner to asses the damage and arrange the compensation for such damage as per the Government Notification dated 24th January, 2011, or any other Notification available prior to the said Notification or in the absence of any Notification at that point of time taking into consideration of market value of the items damaged at relevant point of time. But in the instant case it appears from the record and from the submission of the learned members at bar that no assessment has been done by the Deputy Commissioner to determine the actual damage caused to the respondent except a joint spot verification by the respondent and PHE Department, Government of Mizoram. In my view such spot verification cannot be termed as assessment or determination of damage by the Deputy Commissioner. 8. From the judgment and order dated 1.3.2011, it also appears that the learned court below relied solely on the version and assessment of the respondent and come to the conclusion about the damage caused which is not correct and proper. Therefore, for the ends of justice I feel it/will be appropriate that the instant case needs to be remanded back to the court of Senior Civil Judge for fresh trial after receiving the assessment report from the Deputy Commissioner and after giving opportunities to both parties and to complete the whole process within four months from the date of this judgment. 9. In the meantime, learned Deputy Commissioner, Aizawl is further directed to conduct a survey to assess the actual loss caused to the respondent and to submit the report within l(one) month from the date of this judgment to Senior Civil Judge. It is also further directed to the learned Senior Civil Judge while deciding the issues about the damage he should take into consideration of the assessment of damage caused determined by the Deputy Commissioner whether it is reasonable or not. 10. With the above observation and direction, the impugned judgment and order dated 1.3.2011 is hereby set aside and record is remanded back for fresh trial with a direction to. the State counsel as well as respondent counsel to cooperate with the court of learned Senior Civil Judge and not to ask the adjournment so that, the Learned Senior Civil Judge can dispose the matter within the time allocated to him by this court. 11. With this observation, direction the instant appeal is allowed and disposed of. 12. Registry is directed to send the lower court case record along with the copy of this judgment and order and also a copy of Judgment to Deputy Commissioner through Learned Addl. Advocate General who conducted this case immediately. _____________