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2015 DIGILAW 620 (HP)

Dev Sundri v. State of H. P.

2015-05-29

TARLOK SINGH CHAUHAN

body2015
Judgment Tarlok Singh Chauhan, J. The appellants are the plaintiffs, who are aggrieved by the judgment and decree dated 16.9.2004 passed by learned District Judge, Shimla in Civil Appeal No. 41-S/13 of 2000 whereby he reversed the judgment and decree dated 23.12.1999 passed by learned Sub Judge, Jubbal, District Shimla, in Civil Suit No. 36/1 of 99/98 2. The facts, in brief, are that the predecessor-in-interest of the appellants/plaintiffs namely Durga Dutt Sharma alongwith proforma defendants No. 3 to 9 claimed themselves to be the owner of the land measuring 14-04 bighas, comprising of Khata Khatauni No. 42 min/108, Khasra Nos. 361, 372, 373, 374, 375, 376, 377 and 378 situated in Chak Anu, Tehsil Jubbal, District Shimla. The plaintiff claimed to be in exclusive possession of this land under some family arrangement. The plaintiff also alleged to have constructed a double storeyed house on the aforesaid land. The plaintiff also claimed to have raised an orchard on his aforesaid land about 20 years before the filing of the suit. 3. The defendant/State of Himachal Pradesh, respondents No. 1 and 2 herein, has constructed a road known as “Anti-Rajpuri Road”, which is situated at a higher level than the house and the orchard of the plaintiff. The construction of this road was started in the year 1974-75 and the road became as motorable in the year 1980-81. 4. The precise allegation of the plaintiff in the suit was that at the time of construction of the road, the defendant/State of Himachal Pradesh has not made proper arrangement for the drainage of the water being accumulated on the road. 5. It was averred that no culvert or drainage system was provided and resultantly, the water of a distance of one kilometer was accumulating on the road side and was flowing towards the house and the orchard of the plaintiff, which was situated on a lower level. The flowing of this water from the road towards the house of the plaintiff was said to have damaged the house and the orchard of the plaintiff every year more especially in the rainy season. 6. The flowing of this water from the road towards the house of the plaintiff was said to have damaged the house and the orchard of the plaintiff every year more especially in the rainy season. 6. The plaintiff further claimed that he had earlier also filed a suit against the defendant for seeking the defendant/State of Himachal Pradesh to create proper drainage system on the road so as to check and provide the water from the road towards the house of the plaintiff and it was alleged that in the earlier suit filed by the plaintiff, the Divisional Officer, H.P. Public Works Department had given an undertaking on 21.6.1992 before the Lok Adalat that the dimensions of the culvert of the road over the house of Bhim Shall be increased so as to control the flow of the water over the land and the house of the plaintiff. On the basis of such undertaking, the earlier suit filed by the plaintiff was said to have been compromised on 21st June, 1992. However, the defendants had not honoured or complied with the undertaking given by the Sub Divisional Officer, Public Works Department on 21st June, 1992 and resultantly, the plaintiff had to file an application under Order 21 Rule 32 of CPC against the defendant/State of Himachal Pradesh. This application was dismissed by learned Sub Judge by holding that the earlier suit of the plaintiff had been dismissed and the proceedings initiated by the plaintiff before the High Court of H.P. under Article 227 of the Constitution of India were also dismissed. Resultantly, the plaintiff filed the suit for seeking the relief of mandatory injunction and damages against the defendants. 7. It was claimed that in the year 1997, 22 apple plants of the plaintiff were got totally damaged and the house of the plaintiff had also been damaged and suffered a loss of Rs.2,00,000/- which amount was claimed by the plaintiff against the defendants by way of damages. 8. The plaintiff also claimed that the water flowing from the road towards the house of the plaintiff was causing damage to the house and orchard of the plaintiff every year and he prayed that defendants be directed to control the flow of water from the road side and also to increase the dia of the culvert so that the water may be properly regulated. 9. 9. During the pendency of the appeal before the learned lower Appellate Court, the original plaintiff died and his legal representatives were brought on records, who are the appellants in this appeal. 10. The suit was contested by the defendants/respondents No.1 and 2 by raising preliminary objections regarding limitation, maintainability, valuation, estoppel and non-joinder of necessary parties. On merits, it was denied that any water from the road side was flowing towards the house of the plaintiff. It was contended that at the time of the construction of the road, which was constructed in the year 1974-75 to 1980-81, the proper drainage system was provided and no water was flowing from the road towards the house of the plaintiff. With regard to the undertaking allegedly given by the Sub Divisional Officer in earlier suit on 21st June, 1992, the defendant contended that all the terms of the undertaking had already been complied with and only the dia of the culvert could not be increased from 9 inches to 3 feet, as the same was objected to by Sh. Bhim Singh, respondent No.3 herein, who was having an orchard below the culvert in question. 11. On 20.4.1999, the learned trial Court framed the following issues: 1. Whether the plaintiff is entitled to mandatory injunction as prayed for? OPP 2. Whether the plaintiff is entitled to damages as claimed? OPP 3. Whether the suit is within limitation? OPP 4. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP 5. Whether the plaintiff is estopped from filing the present suit by his act, deeds and conduct? OPD 6. Whether the suit is bad for non-joinder of necessary parties? OPD 7. Relief. 12. The learned trial Court after recording the evidence was pleased to decree the suit for mandatory injunction thereby directed the respondents No. 1 and 2 to provide culvert for a dia of 1½ feet after replacing or nearby the present existing pipe/culvert about 9 inch alongwith proper catchment pit and also to put cause dip/water breaker nearby alleged spot towards Nandpur road in such a way as to reduce the flow of rain water towards the main catchment pit and also the site map Ex.PW-4/A be also read as part and parcel of the decree for providing the points at spot as per its note 1 and 2. 13. 13. Aggrieved by the judgment and decree dated 23.12.1999 passed by the learned trial Court, the defendant/State of H.P. preferred an appeal before the learned lower Appellate Court, who vide its judgment and decree dated 16.9.2004 has been pleased to set-aside the judgment and decree of the learned trial Court. This is how the plaintiffs are now in appeal before this Court against the judgment and decree passed by the learned lower Appellate Court. 14. On 10.12.2004, this Court admitted the appeal on following substantial questions of law: “1. Whether the learned first Appellate Court has misconstrued and misinterpreted the oral as well as documentary evidence specially the evidence Ex.PW-1/B, Ext.PW-1/C and also the statement of PW-4 and Ext.PW-4/A? 2. Whether the learned first Appellate Court could have dismissed the suit of the plaintiffs on the ground of non-joinder of necessary parties without the objection of the respondents/State and the PWD Department who are the main contestant against whom relief has been sought.” 15. I have heard learned counsel for the respondent and have also gone through the records carefully. 16. Since both the substantial questions of law are interconnected and interrelated, I proceed to answer them collectively. 17. It has come on record that the house of the appellants is situate below the road and on account of the official respondents having not put in place the proper drainage the same has resulted in water logging and the same thereafter is flowing towards the house of the appellants thereby causing damage to their property. The appellants in order to prove their case had tendered in evidence the previous copy of order Ext. PW-1/B, statement of Sh. B.N. Vaidya, the then SDO Ext.PW-1/C. Perusal of these two documents reveals that before the Lok Adalat, the respondents had admitted the claim of the plaintiffs and agreed to install a culvert nearby the land of respondent No.3 after putting the catchment pit by which the rain water had to be diverted and the proper drainage was to be provided. The plaintiff had examined one Manoj as PW-4, who tendered in evidence copy of site map Ex.PW-4/A which depicted the manner in which the proper drainage could be provided. He deposed that by not providing the proper drainage, the damage is being caused to the land and house of the appellants. 18. The plaintiff had examined one Manoj as PW-4, who tendered in evidence copy of site map Ex.PW-4/A which depicted the manner in which the proper drainage could be provided. He deposed that by not providing the proper drainage, the damage is being caused to the land and house of the appellants. 18. Not only this, the learned trial Judge himself had visited the spot alongwith the counsels for the parties and a detailed report to the following terms had been prepared: “Today on 2.12.99, I alongwith plaintiff counsel Sh. Mohan Kalta and Ld. ADA have inspected the spot as provided under Section 18 Rule 18 CPC. The following observations have been gathered after seeing the spot: When we reached the spot at Village Bhajanu, plaintiff showed me that nearby the land of one Sh. Bhim Singh one culbert/pipe has been installed under the road. Plaintiff appraised the site which is sloppy one and he bring to my notice that all the rain water from the different side of the hill has been gathered upon the road during the rain season and thereafter the same moved in the downward direction. He bring to my notice the culbert/pipe about 9”, the same has been installed in order to cover the drainage as well as the rain fall. Nearby the aforesaid pipe, there was one pipe which is stated to be installed for the irrigation scheme stated to be now a days become defunct. The pipe which is installed by the PWD Deptt. at its one side there is a little hole in order to collect the water and the second end of the same has been affixed in the tank which is stated to be upon the land of Bhim Singh, used for the irrigation scheme which already become obsolete. Plaintiff and his counsel bring to my notice that prior to the alleged road, the complete portion is sloppy and there is one Naala through which the water of the rain have been diverted/carried from the hill. I have seen the actual spot on the side of the alleged pipe, there is stated as the land of one Sh. Bhim Singh having an apple orchard. Below the land of Bhim Singh, there is stated to be the land of one Sh. Pratap. After passing the land of aforesaid two persons, there are existing sign of Naala stated to be old one. Bhim Singh having an apple orchard. Below the land of Bhim Singh, there is stated to be the land of one Sh. Pratap. After passing the land of aforesaid two persons, there are existing sign of Naala stated to be old one. Now by seeing the aforesaid site, to my mind it appears to be dangerous in case a culbert about 3 feet has been installed on the alleged site. Because if in case the culbert about the dia of 3 ft. has been installed, the same will effect the land of Bhim Singh as well as Pratap Singh. Keeping the reason that the flow of water when the culbert is about 3ft in dia, volume of water becomes so high, it may cause loss to the orchard of the aforesaid person. The aforesaid naala has been stated to be fallen on the road side nearby place known as Annu. From seeing the site, it can be concluded that there are many orchards of different persons lying between the land of one Bhim Singh and the said end of Nallah at village Annu. Thus by putting the culbert as proposed by the plaintiff about 3 ft. in dia, the same will effect the lands of many persons those have not represented in the case and it become dangerous. Though, as per the site, there is a slope towards the land of Bhim Singh as well as there after the orchard of plaintiff side by side road. By seeing the site it can observe that the flow of rain has become less effective as the same was scattered but by putting the culbert about 3 ft. the same become more dangerous as to the natural flow. However, at the site if the pipe of stated to be 9” is replaced by some big pipe having a dia about less than 1½ feet, it will not effect the fields of the other persons because in that event the volume of water remain less. By seeing the spot it can also be assessed that the flow of water can be reduced at the site of occurrence by putting a different small culbert/pipe under neath the road at different place by which the flow of water can be reduced. By seeing the spot it can also be assessed that the flow of water can be reduced at the site of occurrence by putting a different small culbert/pipe under neath the road at different place by which the flow of water can be reduced. These are my observations as narrated above, the same has been after seeing the site, be considered at the time of argument.” It was after taking into consideration all the facts cumulatively that the learned trial Court had decreed the suit. 19. The learned lower Appellate Court has reversed these findings only on the ground that the suit of the plaintiff could not have been decreed without impleading Bhim Singh as a necessary party. While as a matter of fact, Bhim Singh already stood impleaded as a party respondent before the appellate Court. If that was so, the suit to say the least could not have been dismissed that too only on the ground that in case there was an enhancement of the diameter of the culvert, the same was likely to affect the land and orchard of Bhim Singh, who was not party to the suit and had a right to oppose the prayer. 20. The learned lower Appellate Court appears to be totally oblivious of the fact that the relief claimed by the appellants was directed only against the officials of the State and in case while protecting the interest of the appellants, the action of State would result in causing damage to the property of Bhim Singh, respondent No.3, then it was the duty of the State to protect even the property of Bhim Singh. 21. It is more than settled that the State has a duty to protect the lives and properties of its citizens. It was only on account of the construction of the road that the problem of water logging has arisen. Under such circumstances, the State owes more than a verbal assurance, a duty to compensate the affected person(s) and they cannot be left in the lurch without there being any relief granted to them by the State. The Constitutional right guaranteed to the citizens to protect their lives and properties cannot be whittled down at any cost much less at the cost of the State. 22. The Constitutional right guaranteed to the citizens to protect their lives and properties cannot be whittled down at any cost much less at the cost of the State. 22. The officers of the State are ordained with duty to protect the life and property of its citizens and in case of failure, the same amounts to dereliction of duty and the State would be liable to make good this loss. Such liability can be enforced through public law remedy or common law remedy. If damage is caused to a person on account of the lapse of the officials of the State, the same would be treated as culpable negligence on the part of these officials. 23. The responsibility to make good the loss cannot be brushed aside in a manner as done by the learned lower Appellate Court where he reversed the findings of the learned trial Court by observing that the flowing of water from higher level towards lower level, more especially during the rainy water, was a natural phenomena in hilly terrain. This reflects a total lack of sensitivity on the part of the learned lower Appellate Court. 24. In view of the aforesaid discussion, it can safely be concluded that the judgment passed by the learned lower Appellate Court is not at all sustainable and is accordingly set-aside. However, in order to do the complete justice to the parties, even the judgment passed by the learned trial Court is required to be modified and is accordingly modified and a decree for mandatory injunction directing the respondents No. 1 and 2 to provide a drainage system by providing culverts of appropriate size and dia so as to ensure that the property of not only the appellants but even the respondent No.3 is protected from the flow of water. The respondents No. 1 and 2 are further directed to put cause dip/water breaker on the road in question in such a way so as to reduce the flow of rain water towards the main catchment pit. The site map Ex.PW-4/A would form part and parcel of the decree. 25. The respondents No. 1 and 2 are further directed to put cause dip/water breaker on the road in question in such a way so as to reduce the flow of rain water towards the main catchment pit. The site map Ex.PW-4/A would form part and parcel of the decree. 25. Consequently, the appeal is allowed and the judgment and decree dated 16.9.2004 passed by the learned lower Appellate Court in Civil Appeal No. 41-S/13 of 2000 is set aside and the judgment and decree dated 23.12.1999 passed by the learned trial Court is modified as above, leaving the parties to bear their own costs.