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2020 DIGILAW 586 (RAJ)

State of Rajasthan v. Vinod Kumar

2020-07-30

ARUN BHANSALI

body2020
JUDGMENT 1. This first appeal is directed against the judgment and decree dated 29/1/1991 passed by Addl. District Judge No.l, Hanumangarh camp Sangaria, whereby, the suit filed by the respondents - plaintiffs for compensation amounting to Rs.23,000/- has been decreed. 2. The suit was filed inter alia with the averments that the plaintiffs were having land ad measuring 23 Bigha and they were undertaking the agricultural operations in partnership. In the year 1982-83 the plaintiffs had sown the crop of wheat. For the purpose of saving the crops from unregulated water from the river Ghaghar, the State Government had constructed a canal in the year 1964, whereby, the water was diverted to the lake. The Banks of the canal had the capacity of 18700 Cusec water and for controlling the flow of water, 24 gates were constructed at R.D. 42 and by way of escape constructed at R.D. 24 excess water is drained. The canal is about 400 ft. wide. In the last week of January, 1983, on account of heavy rains, in the catchment of river Ghaghar about 2500 cusec water reached the canal on 29/9/83, which was comparatively small quantity looking at the capacity of the canal, however, on account of negligence and carelessness of the officers, the gates at R.D.42 were not opened resulting in water getting collected at one place and on account of obstruction in the water flow, the water got collected, resulting in two cuts each 50 ft. wide near village Masani and Sherenka, whereby, the water entered the fields of the plaintiffs and other agriculturists. The entire crop of wheat was flooded, resulting in plaintiff losing the entire crop. 3. It was indicated that the crop would have yielded 30 quintals wheat per bigha from which the plaintiffs were deprived. It was claimed that the estimated value of the crop was Rs.46,000/-. The cuts were not repaired and in case the officers of the State had taken due care, the same would not have resulted into loss to the plaintiffs and, therefore, they were entitled for compensation from the State. A notice under Section 80 CPC was issued, however, the same was not responded to. Ultimately, it was prayed that a decree for Rs. 23,000/- be granted. 4. A notice under Section 80 CPC was issued, however, the same was not responded to. Ultimately, it was prayed that a decree for Rs. 23,000/- be granted. 4. A written statement was filed by the appellant inter alia indicating that the land of the plaintiffs come within the natural flow of the river and the capacity of the canal was 17800 cusec and the place where the canal broke, it had the capacity of 12000cusec and the canal was 340 ft. wide. There were 2 escapes at pillar 24 by which the flood water was released into the natural bed of the canal. It was claimed that when the water came, all the gates were opened and there was no obstruction in the water flow at pillar 42 and the breakage between pillar 33-34 took place not account of gates closed, extra pressure or the negligence of the officers. The land of the plaintiffs was situated at about 25 km from the place from where the canal broke down and, therefore, the State was not responsible for the loss. The escapes at pillar 42 were opened for protecting the population of village Masani and Sherenka and that the State has the right to release the excess water. 5. It was also indicated that the banks of the canal were made of soil in which on account of dryness, there was possibility of leakage and immediate steps were taken for repairing them. However, the banks were repaired on2/2/1984. It was prayed that the suit be dismissed. 6. The trial court framed three issues. While the first issue pertained to entitlement of the claimants to seek compensation on account of the reasons indicated in the plaint, issue no.2 pertained to the defence of the State and issue no.3 pertained to relief. 7. On behalf of the plaintiffs, 10 witnesses were examined and on behalf of defendants, two witnesses were examined. 8. After hearing the parties, the trial court came to the conclusion that the banks of the canal did not break only on account of sudden arrival of water, at least three gates were not working and apparently on account of gates not being opened in absence of the officers, the banks of the canal broke down. 8. After hearing the parties, the trial court came to the conclusion that the banks of the canal did not break only on account of sudden arrival of water, at least three gates were not working and apparently on account of gates not being opened in absence of the officers, the banks of the canal broke down. The defence regarding the banks being made of soil was not accepted and the court came to the conclusion that for the reasons indicated in the plaint, the banks broke down and relying on the report of Revenue Department regarding the loss suffered by the plaintiffs to the tune of Rs.26950/-, it was held that the plaintiffs were entitled to a sum of Rs. 23,000/- as claimed in the plaint. 9. Regarding issue no.2 based on the right of the State to flow the water in the natural bed of the canal, in absence of notification relied on by the defendants, the issue was decided against the State and consequently the suit was decreed. 10. It is submitted by learned counsel for the appellant that the trial court committed error in coming to the conclusion that the loss to the plaintiffs' crop happened on account of flooding due to negligence of the officers. 11. Submissions were made that the capacity of the canal was admittedly to hold 17000 cusec water and only 2000 cusec water had entered the canal and, therefore, there was no question of flooding taking place on account of the banks of the canal being weak. 12. Submissions were made that the finding of the trial court regarding failure of the officers in reaching the site and not opening the requisite gates for flow of water has no basis inasmuch as 24 gates were situated across the canal and the finding has been recorded that only three gates were closed, therefore, the plea raised that the loss occurred on account of not opening of gates apparently has no basis. 13. Submissions were made that as the land of the plaintiffs was situated within the natural bed of the canal, in terms of the notification dated 6/2/1979, the loss occurring on account of such excess water flowing, no compensation could be claimed by the plaintiffs and, therefore, the trial court committed error in decreeing the suit filed by the plaintiffs. 14. Submissions were made that as the land of the plaintiffs was situated within the natural bed of the canal, in terms of the notification dated 6/2/1979, the loss occurring on account of such excess water flowing, no compensation could be claimed by the plaintiffs and, therefore, the trial court committed error in decreeing the suit filed by the plaintiffs. 14. Submissions were also made that once the loss was claimed at Rs.46,000/-, no reason has been indicated for claiming compensation to the tune of Rs.23,000/- only and, therefore, it is apparent that the respondents have claimed excess compensation. It was prayed that the judgment and decree be set aside. 15. Learned counsel appearing for the respondents supported the impugned decree. 16. It was submitted that the trial court after thoroughly scrutinizing the oral and documentary evidence available on record has come to the conclusion that the loss occurred on account of not opening of the gates and, therefore, the impugned decree does not call for any interference. It was prayed that the appeal be dismissed. It was also pointed out that by way of interim order passed at the relevant time i.e. on 12/7/1991, the decreetal amount has been deposited by the appellant and has been withdrawn by the plaintiffs. 17. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 18. The plaintiffs in their suit in para no. 4 and 5 specifically made allegations/gave out the reasons for flooding of their fields on account of two large breakages each of 50 ft. in the canal mainly on account of the fact that the gates, which were created for releasing excess water were not opened at the required point of time, which resulted in the banks giving way and flooding their fields. 19. The written statement relied on the capacity of the canal to hold much more water than the amount of water which came in the canal on account of flooding and it was denied that the requisite gates were not opened. On behalf of the plaintiffs, 10 witnesses were produced, who categorically supported the plea raised about not opening of the requisite gates. The defence witness, though attempted to contend otherwise, however on crucial cross examination, gave evasive replies i.e. the witness was not aware of the aspects which were put to him. 20. On behalf of the plaintiffs, 10 witnesses were produced, who categorically supported the plea raised about not opening of the requisite gates. The defence witness, though attempted to contend otherwise, however on crucial cross examination, gave evasive replies i.e. the witness was not aware of the aspects which were put to him. 20. The trial court after thoroughly discussing the oral and documentary evidence, on account of the statement of D.W.2 -Bahadur Ram that the banks could not break on account of inflow of water, found the said aspect proved that it was only account of non-opening of the regulator gates and as three gates were not in working condition, resulted in breaking of the banks, came to the conclusion that it was on account of inaction/negligence of the officers in not opening the gates at the relevant time which resulted in flooding of the fields. 21. The submission made by learned counsel for the appellant regarding capacity of the canal and that compared to the capacity a small quantity of water had entered the canal on account of flood, essentially goes against the case of the State inasmuch as it is not in dispute that the banks of canal broke down, resulting in flooding of the fields. If despite having capacity of 17000 cusec water, only on account of 2000 cusec water the banks gave way, the same only reflects that if such a small quantity of water as compared to the capacity of the canal resulted in the banks giving way, the same could only happen if the escape of excess water was not properly regulated i.e. gates which were required to be opened were not opened. 22. In view thereof, apparently the findings recorded by the trial court based on the available evidence cannot be faulted and learned counsel for the appellant failed to point out any perversity in the findings recorded by the trial court on issue no.1 so as to require interference. 23. 22. In view thereof, apparently the findings recorded by the trial court based on the available evidence cannot be faulted and learned counsel for the appellant failed to point out any perversity in the findings recorded by the trial court on issue no.1 so as to require interference. 23. Insofar as the reliance placed on the notification dated 6/2/1979 pertaining to the right of the State to release the water in the bed of the canal is concerned, neither the said notification was produced before the trial court nor the same has been produced before this Court, instead a notification dated 6/6/1973 has been placed on record, which only prohibits any construction in the river bed of the canal which would obstruct its flow and in case any obstruction was created, the State has right to remove the same. The said notification in no manner supports the plea sought to be raised under issue no.2 by the State. 24. In view thereof, the finding on issue no.2 recorded by the trial court also cannot be faulted. 25. So far as the plea raised regarding the claim of the plaintiffs that loss caused to them was of Rs.46,000/- and claiming only Rs.23,000/- is concerned, apparently on account of the fact that the Revenue Department found the loss to the extent of about Rs.27,000/- vide Ex.1, the plaintiffs in their understanding thought it appropriate to claim compensation to the tune of Rs.23,000/- only, which aspect by itself cannot militate against the plaintiffs on merits of the case and/or support the plea raised by the defendant. 26. In view of the above discussion, no case for interference in the judgment and decree passed by the trial court is made out. There is no substance in the appeal, the same is, therefore, dismissed. 27. No order as to costs.