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2019 DIGILAW 1219 (GAU)

Iswar Prasad Jalan v. Tinsukia Prasad Board

2019-11-13

KALYAN RAI SURANA

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ORDER : Kalyan Rai Surana, J. 1. Heard Mr. G.P. Bhowmick, learned Senior counsel assisted by Ms. M. Kalita, learned counsel for the appellant. 2. This appeal under section 100 CPC is directed against the first appellate judgment and decree dated 07.05.2019 passed by the learned District Judge, Tinsukia, in TA No. 3/2018, thereby dismissing the appeal and affirming the judgment and decree dated 20.12.2017 passed by the learned Civil Judge, Tinsukia in T.S. 32/2014 thereby dismissing the suit. 3. The learned Senior counsel for the appellant has submitted that the appellant is an owner of multi-storied RCC building in Tinsukia town. It is projected that there was no pucca drain around the building and instead there was a kutcha drain and accordingly, during the monsoon season the water could not flow through the kutcha drain. Accordingly, in the year 1986, the appellant had installed 96 ft. long and 2 ft. wide hume pipe in the said kutcha drain by spending Rs. 95,000/-. It is also submitted that the hume pipe was installed on verbal permission from the authorities and accordingly, the said Hume pipe drain continued to exist for last 14 years till last part of May, 2010 when the respondent i.e. Tinsukia Municipal Board had illegally dug out the hume pipe installed by the appellant and the drain was converted to a kutcha drain. Thereafter, between 02.08.2011 to 09.08.2011, the appellant converted the said kutcha drain into a concrete drain by spending Rs. 3,55,400/- and accordingly, by issuing the notice under section 326 of the Assam Municipal Act, the appellant demanded a sum of Rs. 4,55,400/- from the respondent in the Money suit filed by the appellant. The respondent contested the case and on the basis of pleadings, the following issues were framed for trial: 1. Whether the suit is maintainable in its present form? 2. Whether the defendant unlawfully dug the drain constructed by the plaintiff with hume pipes without giving the plain-tiffany notice before the excavation? 3. Whether the plaintiff is entitled to the relief/relieves as claimed for? 4. In support of the suit, the appellant had examined 3(three) witnesses and exhibited the following documents: (1) Ext. 1-Estimate dated 15.07.2011, (2) Ext. 2-Bill dated 2.08.2011, (3) Ext. 3-Bill dated 09.08.2011, (4) Ext. 4-Legal notice issued to defendant, (5) Ext. 5-Postal receipt, (6) Ext. 6-Reply Legal notice of defendant, (7) Ext. 7-Bill dated 02.08.2011, (8) Ext. 4. In support of the suit, the appellant had examined 3(three) witnesses and exhibited the following documents: (1) Ext. 1-Estimate dated 15.07.2011, (2) Ext. 2-Bill dated 2.08.2011, (3) Ext. 3-Bill dated 09.08.2011, (4) Ext. 4-Legal notice issued to defendant, (5) Ext. 5-Postal receipt, (6) Ext. 6-Reply Legal notice of defendant, (7) Ext. 7-Bill dated 02.08.2011, (8) Ext. 8-Bill dated 09.08.2011 and (9) Ext. 9(1) to 9(6)-Photographs. 5. However, the respondent neither adduced any evidence nor exhibited any evidence. The learned trial Court held that in respect of issue No. 1 that the suit was maintainable in the present form. However, in respect of issue No. 2, the learned trial Court after examining the provisions of section 13 and 17 of the Assam Town and Country Planning Act, took a view that the same contained prohibition from setting up any new structure or to make addition or substantial repair to any drainage work. The learned trial Court by referring to section 62 of the Assam Municipal Act, 1956 was of the view that all the drains were the property of the respondent, further holding that under section 204 of the Assam Municipal Act, it could demolish any drain or part thereof and held that no prior notice is required by the Board before the demolishing of the drain. The learned trial Court further held that the appellant did not apply for approval from any authority before laying down the hume pipe drain and, as such, there was no question of issuing any notice before digging the drain. Accordingly, it was held that the respondent did not unlawfully dug the drain constructed by the appellant with hume pipe and that the question of giving the appellant any notice before the excavation did not arise in the instant case. Accordingly, issue was decided in the negative and against the appellant. Resultantly, in respect of issue No. 3, it was held that the appellant was not entitled to any relief and the suit was dismissed. 6. The learned first appellate Court formulated a point of determination as to whether the respondent had unlawfully demolished the concrete drain made by the appellant without giving prior notice to the appellant. Resultantly, in respect of issue No. 3, it was held that the appellant was not entitled to any relief and the suit was dismissed. 6. The learned first appellate Court formulated a point of determination as to whether the respondent had unlawfully demolished the concrete drain made by the appellant without giving prior notice to the appellant. In this connection, the learned first appellate Court, by referring to the provision of section 159 and 204 of the Assam Municipal Act, 1956, concurred with the finding by the learned trial Court that the appellant had constructed the drain on the municipal property without taking prior consent of the respondent and accordingly, it was held that the respondent had rightly demolished the concrete drain constructed by the appellant and the issue No. 2 framed by the learned trial Court was decided in favour of the respondent. By concurring on the finding by the learned trial Court on issues No. 1 and 3, the appeal was found to be devoid of any merit and the same was dismissed. 7. Referring to materials available on record, the learned Senior counsel for the appellant had submitted that the provision of section 159 of the Assam Municipal Act, 1956 mandated that a notice be issued to the concerned appellant before the respondent exercised its power to demolish encroachment or for removal of obstruction. Hence, it is submitted that without issuance of notice, the respondent could not have availed the remedy as prescribed in section 155 of the Act. Accordingly, it is submitted that at the first instance, the appellant had laid down a 96 ft. hume pipe drain at a cost of Rs. 95000/- and thereafter he had constructed a concrete drain by spending Rs. 3,55,400/- and, as such the appellant was justified in issuing a notice under section 326 of the Assam Municipal Act, 1956 and seek recovery of the money spent by him. Accordingly, the learned Senior counsel for the appellant has pressed for admission of the appeal on the following 3 substantial question of law viz.,- 1. 3,55,400/- and, as such the appellant was justified in issuing a notice under section 326 of the Assam Municipal Act, 1956 and seek recovery of the money spent by him. Accordingly, the learned Senior counsel for the appellant has pressed for admission of the appeal on the following 3 substantial question of law viz.,- 1. Whether the lower appellate Court is justified for not holding that there is violation of section 159 of the Assam Municipal Act, 1956 by the defendant/respondent for not issuing notice to the plaintiff/appellant before excavation of the Hume pipe installed by him on the katcha drain by the side of AT road in 1986 with the knowledge of the defendant/respondent? 2. Whether the lower Appellate court is justified for not holding that the defendant/respondent is liable to pay to the plaintiff/appellant Rs. 4,55,400/- only towards cost of installation of the Hume pipe and for construction of pucca drain on the side of A.T. road? 3. Whether there is perversity of finding of facts and law involved in the case? 8. Considering the materials available on record, it is seen that the it is the admitted case of the appellant that he had laid a hume pipe drain on the kutcha drain in front of his house and upon removal of the said drain, he had constructed a concrete drain. Notwithstanding, the projection that verbal permission was taken, but from the pleadings on record, it is seen that the appellant had not disclosed the name of any particular person who had given such verbal permission. Therefore, it is established from the materials on record that the petitioner had made construction over the drain. However, the appellant could not establish that he had any semblance of right to install a hume pipe drain over the Municipal kutcha drain or to construct a concrete drain over the kutcha drain. The appellant had also failed to prove that the drain was constructed on the strength of a valid permission. The appellant has also failed to disprove the right of the respondent to demolish the drain, which is otherwise their own property. The appellant has also failed to demonstrate before this Court that how without any right he has suffered any injury which is liable to be compensated in terms of money. The appellant has also failed to disprove the right of the respondent to demolish the drain, which is otherwise their own property. The appellant has also failed to demonstrate before this Court that how without any right he has suffered any injury which is liable to be compensated in terms of money. The nature and character of the claim, prima-facie, shows that the claim of the appellant is based on the principles of tort. Therefore, without any right being proved, it is too well settled that one would have no remedy. It is further seen that under section 204 of the Assam Municipal Act, 1956 the respondent had the power to demolish unauthorized drains. The said provision is found to be independent of the provision of section 159 of the Assam Municipal Act, 1956 and therefore, the learned Courts below are found to have committed no perversity in arriving at a conclusion in respect of issue No. 2 that the respondent had rightly demolished the concrete drain constructed by the appellant and that the act of the respondent in digging the drain resulting in demolition of the hume pipe drain was not an unlawful act. Accordingly, in view of the above, this Court does not find that the decision on the issue No. 2 by both the learned Courts below suffers from any perversity and the said concurrent finding is not found to be vitiated by non-consideration of the pleadings and evidence on record. 9. In the present case in hand, the respondent is found to have statutory power under section 204 of the 1956 Act to demolish unauthorized drain. Accordingly, even without examining the various evidence recorded by the PWs, and without discussing the various documents that the plaintiff/appellant had exhibited, as the action taken by the respondent is found to be in consonance with the provisions of the Assam Municipal Act, 1926, the concurrent finding in respect of all the three issues are found to be sustainable. Accordingly, this appeal against the concurrent finding by the learned Court below is found to be without merit and accordingly, this appeal stands dismissed without issuance of notice to the respondent. 10. The finding by the learned Courts below are not interfered with and decision on the issues as well as the point of determination are affirmed. 11. Office may draw a decree on the dismissal of the appeal. 12. 10. The finding by the learned Courts below are not interfered with and decision on the issues as well as the point of determination are affirmed. 11. Office may draw a decree on the dismissal of the appeal. 12. This order shall be communicated to the learned trial Court to be kept as a part of the record.