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2018 DIGILAW 657 (GAU)

State of Mizoram v. K. Lalrinliana

2018-04-13

NELSON SAILO

body2018
JUDGMENT & ORDER : 1. Heard Mr. A.K. Rokhum, the learned Addl. Advocate General, Mizoram appearing for the State appellants. Also heard Mr. L.H. Lianhrima, the learned senior counsel assisted by Ms. H. Lalmalsawmi for the sole respondent. 2. This is an appeal filed by the State appellants against the Judgment & Decree dated 30.07.2012, passed by the learned Senior Civil Judge-II, Aizawl District, Aizawl in Damage Suit No. 3/2008. By the impugned Judgment & Decree, the learned Trial Court has held that the respondent/plaintiff is entitled to received compensation from the State for destruction of water canal, fruit bearing trees and paddy field covered by Periodic Patta No. 606101/09/68 of 2004 caused by earth spoils from the road construction of Chhingchhip to Hmunthra by the State defendants under the Pradhan Mantri Gram Sadak Yojana (PMGSY). Accordingly, the Deputy Commissioner, Serchhip District, Serchhip was directed to make assessment of the compensation payable to the respondent/plaintiff as per the market value within a period of two months from the date of the decree and thereafter, to submit the assessment to the State defendant Nos. 1 to 6 with a copy to the plaintiff. Thereafter, the defendant Nos. 1 to 6 were directed to pay the amount of compensation as assessed within a period of two months from the date of receipt of the assessment. 3. At the outset, it may be noticed that although the Lower Court Records were requisitioned vide Order dated 24.06.2013 by this Court but however, the appeal has not been admitted. This fact has not been pointed out by the learned counsels for the parties. However, considering the fact that the appeal has been heard at length by this Court on 04.04.2018, I do not find any impediment in admitting the appeal even at this stage. Accordingly, the appeal stands admitted. For the sake of convenience, the plaintiff/respondent shall be referred to as the respondent and the appellants/defendants shall be referred to as the appellants hereafter. 4. Brief facts of the case may be narrated at the outset. The respondent filed Damage Suit No. 3/2008 on 24.04.2008 contending that he was the legal and lawful owner of Periodic Patta No. 606101/09/68 of 2004 located on the banks of the river Tuikum at Chhingchhip covering an area of 7.21 bighas. 4. Brief facts of the case may be narrated at the outset. The respondent filed Damage Suit No. 3/2008 on 24.04.2008 contending that he was the legal and lawful owner of Periodic Patta No. 606101/09/68 of 2004 located on the banks of the river Tuikum at Chhingchhip covering an area of 7.21 bighas. According to the appellant, he inherited the above plot of land from his father, Shri. Saihnawla after he expired in the month of January 2004 by obtaining Heirship Certificate No. 157/2008. According to the respondent, he and his family have been developing the paddy field covered by the said periodic patta for wet rice cultivation commencing from the year 1960 till 2003. Apart from the wet rice cultivation, the respondent and his family planted a number of fruit bearing trees including cash crops in the plot of land and from which, they earn a substantial amount by selling them in the market. However, in the year 2003, the appellants constructed Chhingchhip to Hmunthra road under the PMGSY Scheme and in the process of the construction of the road, about 400 meters length out of the 600 meters long canal used for supplying water to the paddy field was damaged. As a result, the supply of water to the paddy field was entirely stopped and paddy cultivation was no longer possible. Although, the respondent and his late father submitted several representations to the State authorities, the same having no fruitful result, the respondent initiated the Damage Suit. By filing Damage Suit No. 3/2008, the respondent has claimed the following reliefs:- "(a) That the Plaintiff is entitled to compensation amounting to Rs. 7,52,300/- for the destruction of paddy field, canal, fruit bearing trees, etc. (b) That the Plaintiff is entitled to receive Rs. 50,000,000/- as loss of income for deprivation of their right to use their land and Rs. 1,00,000/- for mental suffering, agony etc. (c) That the Plaintiff is entitled to receive compensation by applying multiplier 10 from the prices of costs of fruit bearing trees so damaged by the defendants. (d) Any other decree or decrees or order or orders as to this court may deem fit and proper for the ends of justice in favour of the Plaintiffs." 5. (c) That the Plaintiff is entitled to receive compensation by applying multiplier 10 from the prices of costs of fruit bearing trees so damaged by the defendants. (d) Any other decree or decrees or order or orders as to this court may deem fit and proper for the ends of justice in favour of the Plaintiffs." 5. In response to the suit, the appellants filed their written statement contending inter-alia that formation cutting of chhingchhip to Hmunthra road was done in the year 2003 under the PMGSY Scheme and it was completed in the same year. The respondent in fact obtained the periodic patta only after the road was constructed. The appellants also contended that the earth spoils on account of the construction of the road did not reached the paddy fields of the respondent since the land of the respondent was situated far below the road construction. It was further contended that since no complaint was received from the respondent in the year 2003 when the road was constructed, it was clear that no damage was sustained by the respondent. Therefore, the belated claim of the respondent should not be entertained. 6. Mr. A.K. Rokhum, the learned Addl. Advocate General appearing for the appellants submits that the verification was conducted by the Officials of the State Public Works Department (PWD), wherein it was found that the water canal of the respondent was about 120 meters in length and about 1.5 feet in width and with a depth of about 1-1.5 feet. The water canal was neither a concrete or semi-concrete canal but it was purely temporary. There was no damage to the paddy field, which was far below the road and the damage to the water canal could be easily repaired. Therefore, in view of the limited damage found and the complaint made by the respondents late father, the appellants considering the fact that no component was provided towards compensation under the PMGSY Scheme allotted a work order to the late father of the respondent on 02.08.2005 to compensate for the damage sustained. Therefore, no further compensation was payable to the respondent and the learned Trial Court having failed to consider this aspects, the impugned Judgment & Decree should be set aside and quashed. Therefore, no further compensation was payable to the respondent and the learned Trial Court having failed to consider this aspects, the impugned Judgment & Decree should be set aside and quashed. He submits that the appellants in support of their contention examined 3 witnesses before the Trial Court and they clearly testify about the extent of the damage caused to the land of the respondent. The respondent, on the other hand, has made exaggerated claims in his suit filed before the learned Trial Court. He thus submits that the impugned Judgment & Decree under the facts and circumstances should be set aside and quashed. 7. Appearing for the respondent, Mr. L.H. Lianhrima, the learned senior counsel submits that the fact of the damage being sustained by the respondent on his land covered by the periodic patta has clearly been established. He submits that in support of the claim, the respondent adduced his evidence by examining 3 plaintiffs witnesses including himself. He submits that the respondent also exhibited as many as 13 exhibits, which in fact were admitted by the appellants without any objection apart from the verification report and assessment made by the Village Council President of Chhingchhip Village. He submits that in spite of such assessment having been made, the learned Trial Court did not accept the same and therefore, directed the Deputy Commissioner of Serchhip District to make the assessment. Therefore, there is nothing wrong with the Judgment & Decree passed by the learned Trial Court requiring the interference of this Court. 8. I have heard the learned counsels appearing for the rival parties and I have perused the materials available on record including the Lower Court Records requisitioned from the learned Trial Court. 9. Upon perusal of the records, it is seen that pursuant to the filing of the damage suit, the learned Trial Court framed two issues, which are as follows:- (i) Whether the suit is maintainable or not? (ii) Whether the plaintiff is entitled to the relief claimed, if so, to what extent? It is also seen that in support of their respective case, both the appellant as well as the respondent examined 3 witnesses each and also exhibit their respective documents. Issue No. 1, as may be noticed is with regard to the maintainability of the suit. (ii) Whether the plaintiff is entitled to the relief claimed, if so, to what extent? It is also seen that in support of their respective case, both the appellant as well as the respondent examined 3 witnesses each and also exhibit their respective documents. Issue No. 1, as may be noticed is with regard to the maintainability of the suit. The learned Trial Court vide the impugned Judgment & Decree has held that the issue was decided in favour of the respondent vide Order dated 01.04.2009. However, upon perusing the Order dated 01.04.2009 from the case record, it is seen that there is no discussion about the issue but a permission granted to the appellants to file their written statement. As for issue No. 2, the learned Trial Court after discussing the evidence led by the rival parties decided that damage was sustained by the respondent on account of the construction of Chhingchhip to Hmunthra road under the PMGSY Scheme and accordingly passed the impugned Judgment & Decree. 10. Although the learned counsel for the appellant has questioned the claim of the respondent for damage compensation on his plot of land covered by the periodic patta since it was issued only after the construction of the road in question and completion thereof in the year 2003, it can be seen that the Periodic Patta of 2004 superseded the earlier periodic patta, issued under the Periodic Patta No. 218/1980. Moreover, the Periodic Patta of 2004 was issued pursuant to the Governments approval conveyed vide K. 53011/51/02-REV dated 22.07.2002. Furthermore, it is not even the case of the appellant that on account of the claim for damages made by the respondent, they have applied for cancellation of the periodic patta, issued in the year 2004 after the construction of the road concerned. Therefore, it is only an admitted position that the respondent is the owner of the plot of land covered by the Periodic Patta of 2004. Before examining the extent of the damage sustained by the respondent due to the construction of the road in question, it would be important to find out as to whether the respondent sustained any damage on his land due to the construction. Before examining the extent of the damage sustained by the respondent due to the construction of the road in question, it would be important to find out as to whether the respondent sustained any damage on his land due to the construction. As can be seen, it is the case of the appellants that in lieu of his damages caused to the water canal of the respondent, a work order was issued to his late father for construction of culvert and retaining wall. Therefore, without difficulty, it can be seen that there was indeed damage sustained by the respondent in his land. 11. Let us now examine the evidence led by the respondent before the Trial Court. The respondent examined himself as PW 1. In his deposition in chief, he repeated precisely what he stated in his complaint. In his cross examination, he admitted the fact that the PWD Officials conducted spot verification to the affected areas of his land in his presence. PW 2, who was a retired Government servant as Head Master of Chhingchhip High School deposed on oath that he was aware of the fact that the respondent and his father used to have a paddy field since the year 1967 on the bank of Tuikum River, which was covered by the Periodic Patta of 2004. He stated that they look after the paddy field till the year 2003 as after 2003, the water canal, measuring about 600 meters supplying water to the paddy field was damage by the construction of Chhingchhip to Hmuntha road under PMGSY Scheme by the appellants. He stated that on application made by the respondent, a spot verification was conducted by the Village Council where he was the President at the relevant time. In his cross-examination, he stated that the document of withdrawal of witnesses relied upon by the appellants was only prepared by Shri. C. Lianzuala (DW 3) who requested him to put his signature. Therefore, it was at his instance that he put the signature in the said document. He, therefore, stated that he stood by the verification report which was dated 15.07.2004. PW 3 in his deposition before the Trial Court, also re-affirmed the claim of the respondent and the deposition of PW 2. Therefore, it was at his instance that he put the signature in the said document. He, therefore, stated that he stood by the verification report which was dated 15.07.2004. PW 3 in his deposition before the Trial Court, also re-affirmed the claim of the respondent and the deposition of PW 2. He also stated that he was also a party to the spot verification conducted and that he also had duly put his signature in the Verification Report dated 15.07.2004. In his cross-examination, he stated that the road construction affected the appropriation of the land belonging to the respondent. He also stated that as a result of the construction of the road, the fruit bearing trees and the cash crops planted by the respondent were affected. 12. Coming to the evidence of the appellants, it can be seen that the Sub Divisional Officer of Public Works Department P.C. David Lalrinliana was examined as DW 2. He deposed that he was posted as the Sub Divisional Officer under the PWD at Serchhip from October, 2003 to May, 2007. He stated that on receiving complaint, 2 (two) officials of the Department i.e., Shri. C. Lalfakzuala, Junior Engineer, who was the then Section Officer of the area, was detailed to make the verification. On making the verification, it was found that about 120 meters of the water canal of the respondent was covered by earth spoil. The water canal was of a temporary nature having a width of around 1.5 ft and a depth of 1 ft to 1 ft. It was neither concrete nor semi-concrete, but purely temporary. According to him in lieu of the damage sustained by the respondent, a work order was allotted to his father. He also stated that in his assessment, the cost of repairing the water canal could not be more than Rs. 10,000/- and it was easily repairable. He also stated that the respondent himself by presenting the spot verification report has himself indicated that the cost for evacuation of the earth spoils in the water canal would be around Rs. 11,000/-. DW 1 C. Lalfakzuala is the Section Assistant, who had made a spot verification during the relevant time. In his deposition, he stated that he had gone to the spot to verify the complaint of the respondent. 11,000/-. DW 1 C. Lalfakzuala is the Section Assistant, who had made a spot verification during the relevant time. In his deposition, he stated that he had gone to the spot to verify the complaint of the respondent. That on the spot he found that about 120 meters of the water canal was covered by earth spoil. The temporary water canal was about 1.5 ft in width with a depth of 1 to 1.5 ft. The water canal was neither concrete nor semi-concrete but a temporary one. Since there was no provision for payment of compensation under the PMGSY Scheme, a work order for construction of culvert amounting to Rs. 2,70,310/- was given to the father of the respondent. In his assessment, the cost of re-building the water canal would not be more than Rs. 10,000/-. He also stated that the respondent himself had shown Rs. 11,000/- only as the cost of removing the earth spoil in the verification report submitted by him as Annexure-7 (Exhibit P-8) in the Suit. In his cross-examination, he further admitted that no verification report was prepared in writing and that there was no evidence of record to show that the work order was issued in lieu of compensation to the respondent. 13. Upon appreciation of the respective evidence led by the rival parties, what can be seen is that a spot verification was conducted by the Public Works Division Officials as contended by them and also as admitted by the respondent in his cross-examination. Furthermore, DW 1 and DW 3 had also stated that some earth spoils had connected in the water canal of the respondent. Therefore, the damage caused upon the land of the respondent is evident. However, it would not be possible to quantify the amount of compensation to be awarded to the respondent in absence of the verification report. Therefore, in my considered opinion, the learned Trial Court was justified in directing the Deputy Commissioner of Serchhip District to make an assessment of the compensation payable to the respondent. 14. In the result, I do not find any merit in the appeal and the same is accordingly dismissed. The Lower Court Records be sent back forthwith.