Gujarat High Court
Gujarat Water Supply And Sewerage Board … vs State Of Gujarat on 17 December, 2024
NEUTRAL CITATION
C/FA/4961/2019 JUDGMENT DATED: 17/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4961 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
NO
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GUJARAT WATER SUPPLY AND SEWERAGE BOARD THRU
EXECUTIVE ENGINEER & ANR.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. HARDEEP L MAHIDA(7112) for the Appellant(s) No. 1,2
MR PJ KANABAR(1416) for the Defendant(s) No. 2,3
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 17/12/2024
ORAL JUDGMENT
1. Heard Mr. Hardeep Mahida, learned advocate for the
appellants- original defendants and Mr. P J Kanabar, learned
advocate for the respondents- original plaintiffs.
2. The present appeal is filed at the instance of the original
defendants- Board being aggrieved and dissatisfied with the
impugned judgment and decree dated 18.6.2018 passed by
the learned 2nd Additional Senior Civil Judge, Amreli in
Special Civil Suit No.54 of 2012, whereby, the learned Judge
has partly decreed the suit in favour of the respondents –
original plaintiffs directing to pay compensation to the tune of
Rs.2,90,000/- to be realized from the original defendants with
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interest thereon at the rate of 6% p.a from the date of filing of
the suit fill its realization.
3. The facts as borne out from the record are briefly
reproduced herein under:
3.1. The plaintiffs are the joint owners of an agricultural land
bearing survey no.118/1 A paiki 25 total admeasuring 1-61-88
Hectare Are sq mtrs approximately 10 vighas of agricultural
land of village Bambhaniya, Tal: Kunkavav, Dist. Amreli. It is
the case of the plaintiffs that they used to take crops like
groundnut, cotton, wheat, etc. throughout the years. The
defendant no.2 board had laid down an underground pipeline
to supply drinking water to the people of village Bambhaniya.
This underground pipeline was 4 ft wide in diameter and it
passes through the land of the plaintiffs, whereby an air valve
was fixed for the purpose of distribution of the water to the
concerned Gram Panchayat. It is the case of the plaintiffs that
during the month of July and August 2010 the leakage of
water had started from the lower and upper part of the air
valve which has resulted into spread of the water over the
land of the plaintiffs causing extensive damages to the land of
the plaintiffs as well as to the standing crop. The letter dated
26.10.2011 was addressed to the defendant no.3 Gujarat
Water Infrastructure Company Limited who has been
entrusted the work to manage and administer the water
supply pipeline by the defendant no.2 Board. The defendant
no.3 had not responded to such a complaint. On 30.3.2011, a
heavy bulk of water was released from Narmada Canal
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through the main line and because of leakage of air valve,
resulting in loss to the land as well as to the standing crop of
wheat of the plaintiffs. The plaintiffs also, therefore,
approached the concerned Gram Panchayat by lodging a
complaint on 31.3.2011. The panchayat in presence of the
plaintiffs and other witnesses had drawn panchnama in this
regard and a map was also prepared in presence of Panchas,
Sarpanch and Talai cum Mantri of Gram Panchayat. The
plaintiffs had thereafter on the same day made a
representation to the Ministry of Agriculture, State of Gujarat
and had also written a letter on 1.4.2011, recommending
damage sustained. The concerned Minister vide letter dated
21.4.2011 had informed the defendant no.2 Board to take
necessary action in this regard, however, no steps were taken.
The plaintiffs once again wrote a letter to the defendant nos.2
and 3 on 5.7.2011 by registered Post AD thereby providing
necessary details with regard to the damages sustained by the
plaintiffs and seeking compensation for such damages. The
request was also made to shift the air valve from the land of
the plaintiffs. On the same day, a letter was also addressed to
the Minister of Agriculture of State as well as to the Member
of Parliament which was in the form of notice. In response to
the aforesaid complaint, one Shri Utpal Saheb and Devsibhai
associated with defendant no.3 had visited the suit land on
12.7.2011, who according to plaintiffs have verified the
damages sustained by the plaintiffs. The plaintiffs had again
written a letter to the defendant no.2 in this regard. The
similar representations were followed to the Collector, Amreli
also vide letters dated 7.4.2011 and 13.7.2011. In absence of
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any compensation derived from the defendant no.2, the
plaintiffs were constrained to approach the Court of learned
Civil Judge seeking damages for an amount of Rs.5,40,000/-
including loss of Rs.1,40,000/- towards the damages of
destruction of standing crop on the land and loss suffered due
to damages caused to the land to the tune of Rs.4 lakhs. The
suit was registered as Special Civil Suit No.54 of 2012 with
the Court of learned Principal Senior Civil Judge, Amreli. It
transpires from the record that pending the aforesaid suit, the
officer of the defendant no.3 company visited the suit land i.e.
almost after a lapse of 18 months during the period from
25.2.2012 to 27.2.2012 and had undertaken the exercise of
removing and shifting air valve from the suit land. In response
to the summons issued by the Court, the defendants have
appeared before the Court and have submitted their written
statement at Exh.19 inter alia disputing the averments made
in the plaint. The defendants prayed for dismissal of the suit
on the ground of mis-joinder of parties as well as on the
ground of absence of the notice under Section 80 of the Code
of Civil Procedure prior to lodging of the suit. As regard the
contention raised by the plaintiffs, the defendants have
contended that the air valve was generally fitted at a distance
of 300 meters from the main pipe line and is fixed in the
government land. The connection for water supply was
provided at the instance of the Gram Panchayat and hence it
was the responsibility of the concerned Gram Panchayat to
manage the leakage which had taken place at the land of the
plaintiffs. It was therefore contended that in absence of the
Gram Panchayat being joined as party defendants, the suit
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was not maintainable for non joinder of necessary parties. The
defendant board had tried to shirk their responsibility by
contending that though leakage has been caused, the same
has been caused due to the negligence on the part of the
Gram Panchayat. The Court upon appreciating the pleadings
of the respective parties, proceeded to frame the issues at
Exh.20 which are reproduced herein under:
“1.Whether the plaintiffs prove the Narmada
Canal Pipeline passes through the land Survey
No.118/1 A Paiki 25 owned by them ?
2. Whether the plaintiffs prove that as a result of
leakage in the air valve erected for the canal by
the defendants, the land and crop of the plaintiffs
have been damaged ?
3. Whether the plaintiffs are entitled to
compensation for the damages caused to their
land and crop ? If yes, what amount.
4. Whether the plaintiffs are entitled to get
interest on the said amount ? If yes, on what
amount and from which date ?
5. Whether the defendants prove that the suit is
bad for mis joinder of party ?
6. Whether the defendants prove that while
taking water connection by the Gram Panchayat,
leakage was occurred due to the negligence of
the Gram Panchayat ?
7. Whether the suit is barred by non-joinder of
party ?
8. What order and decree ?”
3.2. To meet with the aforesaid issues, plaintiffs have led oral
as well as documentary evidence to establish their case. The
details of such evidence are reproduced herein under as
under:
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Oral evidence:
Sr. No. Name of witness Exh. 1. Dayalbhai Ramjibhai Boghani 24 2 Vajubhai Bhikhabhai Dobariya 47 Documentary evidence Sr. No. Name of witness Exh. Power of attorney in favour of 1. 25 Dayalbhai Ramjibhai Bhogani. Extract of village form no.8-A A/C 2 26 No.466. 3. Extract of village form nos. 7 & 12 27 Extract of village from No.6 entry 4 28 no.1273
Copy of letter dated 11.10.2010 written
5 29
to the Deputy Ex. Engr.
Copy of letter dated 26.10.2010 written
6 30
to the Manager,GWIL Co.
Copy of letter written to the Minister of
7 31
Agriculture.
8. Panchrojkam 32
9 Map of the spot. 33
Copy of letter dated 1.4.2011 written to
10 34
the Exh. Engr.
Letter written by Minister of
11 35
Agriculture to the plaintiff
Copy of letter dated 5.7.2011 written to
12 36
the Deputy Ex. Eng.
Copy of letter dated 5.7.2011 written to
13 37
the General Manager, GWIL
Copy of letter dated 12.7.2011 written
14 38
to the Sr. Manager GWILPage 6 of 13
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Copy of letter dated 13.7.2011 written
15 to the Collector, Amreli by Member of 39
Parliament.
Copy of letter dated 4.2.2012 written to
16 40
the Sr. Manager GWIL
17 Receipt of RPAD 41
18 Acknowledgment of RPAD 42 & 43.
Copy of notice under Section 80 of the
19 44
CPC
20 Four Photographs. 45
3.3. On the other hand, defendant no.2 Board has examined
the witness viz. Kalpeshkumar Khodabhai Teraiya whose
evidence has come on record at Exh.55, who is manager of the
Gujarat Water Infrastructure Company Limited. Learned
Judge upon appreciation and evaluation of the evidence
brought on record as well as considering the submissions
made by the respective parties has answered the aforesaid
issues with reasons as under:
“1. In affirmative.
2. In affirmative.
3. As per final order.
4. As per final order.
5. In negative.
6. In negative.
7. In negative.
8. As per final order.”
3.4. The learned Judge while examining the issue of leakage of
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air valve has arrived at a conclusion that the plaintiffs have
succeeded to prove that as a result of leakage of air valve
installed for the distribution of water by the defendants, the
land and crops of the plaintiffs have been damaged. Looking
to the various documentary evidence brought on record, the
learned Judge has arrived at a conclusion that the defendants
have remained negligent as it was defendant no.2 board and
the defendant no.3 company who had fixed the air valve and
pipelines and were responsible for managing pipelines and
the leakage. The learned Judge has also noticed that it has
clearly transpired from the cross examination of the sole
witness of the defendant nos. 2 and 3 that while taking water
connection by the Gram Panchayat the leakage had occurred.
The defendants have not produced any documentary evidence
to prove their case that the leakage had taken place due to
negligence on the part of the Gram Panchayat. In fact, the
defendant witness at Exh.55 has admitted that it is the
responsibility of his company that no leakage take place from
the air valve of the main pipeline. Thus, the learned Judge has
arrived at a conclusion that responsibility to maintain the air
valve lies on the defendant no.2 board. With this findings and
conclusion, the learned Judge has partly decreed the suit
thereby holding the plaintiff entitled to recover an amount of
Rs.2,90,000/- with interest at the rate of 6% p.a. from the date
of filing of the suit till its realization. Hence, present appeal at
the instance of the original defendant no.2 board as well as
defendant no.3 company.
4. The present appeal was admitted by this Court by order
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dated 18.02.2020. Considering the facts and circumstances of
the case, this Court had directed the entire amount of
compensation to be invested in a fixed deposit receipts with
any nationalized bank and the interest to be accrued on such
deposit was directed to be retained. Considering the request
of the learned advocate for the respondent, the matter was
taken up for final hearing.
5. Mr. Hardeep Mahida, learned advocate has appeared on
behalf of the appellants and Mr. P J Kanabar, learned
advocate has appeared on behalf of respondent nos.2 and 3
original plaintiffs.
6. Learned advocate for the appellants had at the outset
invited my attention to the issues framed by the learned
Judge. The principal arguments canvassed by the learned
advocate for the appellant has disputed the liability of the
appellants board by contending that in fact it was the Gram
Panchayat concerned who was required to care of the
maintenance of the air valve as the only obligation which was
there on the appellant board as well as on the appellant
company was to lay down pipelines for supply of water to the
concerned Gram Panchayat. According to the learned
advocate, the learned Judge failed to appreciate the above
aspect by not appreciating the evidence of the witness of the
defendant board in right perspective. It was also submitted
that the learned Judge has seriously erred in accepting the
panchnama arrived at Exh.32 and the map produced at
Exh.33 which according to the learned advocate was not
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drawn in presence of the appellant and therefore, the same
could not have been admitted as evidence. Learned advocate
has also submitted that no cogent material has been brought
on record in the nature of bills to indicate the actual damage
sustained by the plaintiffs. It was therefore, submitted that in
absence of any cogent evidence being brought on record the
amount of compensation awarded to the tune of Rs.2,90,000/-
with interest is required to be quashed and set aside, more
particularly, when the necessary party it is the case Gram
Panchayat concerned has not been joined as party
respondent.
7. Mr. P J Kanabar, learned advocate for the respondents-
original plaintiffs has objected to the aforesaid submissions.
The attention of this Court was invited to the reasons assigned
by the learned Judge while answering the issue with regard to
the negligence of the defendants. According to the learned
advocate, the reasons assigned by the learned Judge are in
light of the evidence brought on record. Much emphasis was
led on the cross examination of the witness wherein he has
clearly admitted the fact that the concerned Board had
entrusted the work to the defendant company the
management of the pipelines as well as that of the air valve
under the supervision of the Board. With such evidence on
record, no error can be found with the approach of the
learned Judge in holding the defendant board and the
defendant no.3 company responsible for the damages
sustained by the plaintiffs. As regards the submission of the
learned advocate for the appellants for determination of the
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compensation is concerned, learned advocate has placed
reliance upon the decision of the Hon’ble Supreme Court in
the case of Municipal Corporation of Delhi vs.
Subhagwanti reported in AIR 1966 SC 1750 as well as in
the case of Faiyazhussain Nazirahmed Ansari vs.
Ahmedabad Municipal Corporation reported in 2018 (3)
GCD 2144. It was submitted that the Rule of res ipsa loquitur
general purport of the words means that the accident ‘speaks
for itself’ or tells its story. It was further submitted that it is
not always necessary that direct proof of negligence should be
adduced by the plaintiffs, the Courts have that liberty to draw
inference from the proved facts. He has therefore submitted
that once the court had found the defendants negligence in
absence of any reasonable explanation to say how the
accident had occurred without negligence on their part, this
Court may not entertain the appeal.
8. Considering the submissions made by the learned
advocates for the respective parties and appreciating their
submissions in light of the evidence placed on record,
indisputably the suit land belongs to the original plaintiffs and
the water pipeline was laid down by the defendant no.2 board
in the suit land of the plaintiffs. It is undisputed fact that
pipeline was laid down by the defendant no.2 board to meet
with his obligation to supply water to the concerned Gram
Panchayat. In order to supply water, the air valve is required
to be fixed at a distance of 300 meters on such a pipeline by
the defendant no.2 board. The plaintiffs have brought on
record the documentary evidence which includes letter dated
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26.10.2011 addressed to defendant no.3 company who is
entrusted with the work to manage the pipeline laid down by
the defendant no. 2 board. Such letter has been brought on
record and has been proved by the plaintiffs at Exh.30. Apart
from the aforesaid letter, the plaintiffs have also addressed
various communications / representations to the respective
state authorities i.e. from the date of incident i.e. 31.3.2011
till October 2011 thereby complaining about the heavy
leakage of water from the air valve fitted with the pipeline laid
down by the defendant no.2 board. The overall appreciation of
the aforesaid letters, in light of the plaintiffs evidence, clearly
borne out that throughout repeated requests / complaints
were made to the respective officers, the same has not been
attended. It has come on record that the officers of defendant
no.3 company visited the suit land only on 12.07.2011
whereby the request of the plaintiffs to shift the pipeline was
acceded to and was ultimately shifted. From the aforesaid
events, it appears that the defendant no.2 and defendant no.3
have remained negligent which had led to the explosion of the
air valve resulting into heavy released of the water into fields
of the plaintiffs consequently leading to the damage of the
standing crops. It can also be gathered from the evidence of
the plaintiffs and the documentary evidence brought on
record, more particularly, the panchnama produced on record
at Exh.31 and the map produced at Exh.32, it clearly
transpires that the plaintiffs had sustained loss of not only
standing crops but the field of the plaintiffs was extensively
damaged. With such evidence noticed on record, no error can
be found with the approach of the learned Judge in making
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assessment of the damages to the tune of Rs.2,90,000/- being
sustained by the plaintiffs towards loss of standing crop of
wheat as well as damage caused to the land of the plaintiffs.
So far as awarding of interest at the rate of 6% p.a. is
concerned, seems to be a reasonable which calls for no
interference of this Court in present appeal, more particularly,
when the plaintiffs have successfully proved the loss sustained
because of the negligence on the part of the appellants-
original defendant nos. 2 and 3. No error has been pointed out
by the learned advocate for the appellant which calls for any
interference of this Court in the present appeal.
9. For the foregoing reasons, present appeal is not entertained
and is hereby dismissed. Since the appeal is dismissed, the
amount of compensation lying in the form of fixed deposit
receipts with the concerned Nationalized Bank is hereby
directed to be released and disbursed in favour of the
claimants- original plaintiffs subject to due verification
preferably within a period of four weeks from the date of
receipt of the order. With this, present appeal stands disposed
of as not entertained. Records and proceedings of the original
suit are directed to be sent back forthwith to the concerned
trial court.
sd/-
(NISHA M. THAKORE,J)
RATHOD KAUSHIKSINH
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