Dismissed

Damodar Prasad Sharma v. State of Chhattisgarh

Chhattisgarh HC2 Dec 2022FA/226/2003

Case brief

AI extract

What is this about?

In a first appeal, the High Court examined the validity of a recovery proceeding against an ex-Sarpanch for non-completion of government-funded construction work within one year. The court held the trial court's decision to dismiss the suit was correct as the plaintiff failed to prove he signed a blank paper or that notice was not served. The appeal was dismissed.

What did the court decide?

The first appeal was dismissed; no order as to costs; a decree to be drawn up accordingly.

Damodar Prasad Sharma Vs State of Chhattisgarh — Specific Performance | Chhattisgarh HC (2022)

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Page 1 of 11

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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FA No. 226 of 2003

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Order Reserved on 23.08.2022

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Order Delivered on 02.12.2022

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Damodar Prasad Sharma, S/o Duryodhan Prasad Sharma, Aged about 61 years, R/o Village-Ghumka, Tah. & Distt.- Rajnandgaon (C.G.).

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---- Appellant/Plaintiff

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Versus

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State Of Chhattisgarh Through the Collector Rajnandgaon, Distt.Rajnandgaon (C.G.).

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---- Respondent/Defendant

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For Appellant : Mr. Awadh Tripathi and Mr. Vivek Tripathi, Adv. For Respondent : Mr. Ravi Bhagat, G. A.

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Hon'ble Shri Justice Narendra Kumar Vyas

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C.A.V. JUDGMENT

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The instant First Appeal has been filed by the appellant/plaintiff under Section 96 of the Code of Civil Procedure, 1908 (henceforth CPC) challenging the impugned judgment and decree dated 07.11.2003 passed by District Judge, Rajnandgaon in Civil Suit No. 13-A/99 whereby the plaintiff's suit for declaration of illegal recovery of the amount of Rs.45,113/- by the respondent/State and permanent injunction against the said recovery has been dismissed by the trial Court.

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[For the sake of convenience, parties would be referred to as per their description shown in the plaint filed before the trial Court].

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The facts of case, as reflected from the plaint, are that the appellant/ plaintiff is the Ex-Sarpanch of Gram Panchayat, Ghumka. He remained as Sarpanch of the said village till 198283. The learned Tahsildar Dhumka, District- Rajnandgaon in recovery case has directed for depositing the amount of Rs. 25,250.05/- up to 19.09.1988. The plaintiff has moved an

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application before the Tahsildar,Dhumka challenging the validity of the said recovery proceeding. Since it was issued by the Collector, Rajnandgaon, therefore, vide order dated 16.08.1988, the same was rejected. It has also been contended that the plaintiff has moved an application before the Collector, Rajnandgaon which was rejected on 22.04.1987, therefore, there was no other option except to file the present suit.

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From the plaint averments, it is reflected that the State Government has given grant of Rs.10,000/- to the Gram Panchayat, Ghumka for construction of village Secretariat building and 30% of work of construction of the said building to be completed through the fund generated by the contribution by the Public of the said village. It has been further contended that there is no specific agreement with the plaintiff for construction of the said work. It has also been contended that the rate of cement of Rs.27/- as per CSR whereas the market value was Rs. 40/-, the cement was purchased in black similarly CSR rate of iron rods was Rs. 158/- whereas the market rate was 450/per quintal. Despite sincere efforts made the appellant/plaintiff to collect 30% of amount from the public residing the Gram Panchayat could not get the public support in respect of the said work. Similarly, the appellant/plaintiff was also given aid for the development of the passage and the pond as such, the panchayat fund has been utilized for the said work. Thus, there was no sufficient fund for construction of the Secretariat Building. It has also been contended that the work carried by the plaintiff was valued at Rs. 9,234/- out of which 30% was public contribution and the amount of Rs. 6,500/- was adjusted. It has also been contended that the plaintiff has received Rs. 5,000/public contribution which includes in cash and in form of rice. It has also been contended that this valuation was done in the year 1982, no steps were taken by the departmental officers for completion of construction and the wall which height is 10 ft. fell down because of heavy rains and the bricks were also stolen. It

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has also been contended that for carrying out the construction work, he has asked to put his signature on a blank stamp paper wherein it has been mentioned that the conditions are explained to him but no conditions were mentioned in the said stamp paper. From the recovery proceeding, it was revealed to him that in the blank stamp paper, a cyclostyle form was attached which is illegal, therefore, on the basis of these illegal conditions mentioned in the attached form, no recovery can be initiated against him.

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It has also been contended that the excess amount to the tune of Rs. 29,300/- is ordered to be recovered from him through the recovery proceeding, though the loss due to fall of the wall and stolen of bricks comes to Rs. 9,944/-, as such, excess amount has been assessed, which is illegal and contrary to the terms and conditions of the work order. The Block Officer, Rajnandgaon vide its memo dated 25-27.09.1982 has informed that Rs. 22,002/- was accepted by the Government for construction of the Sachiwalay Bhawan and that amount should have been adjusted as per terms and conditions. It has also been contended that all the construction work, which was carried out by the plaintiff, was informed to the Gram Panchayat and Gram Panchayat has given the acceptance. It has also been contended that the plaintiff has made all the sincere efforts for development of his Panchayat during his tenure and also raised demand for completion of the Sachiwalay Bhawan. It has also been contended that as per Section 84 of the Chhattisgarh Panchachayt Raj Adhiniyam, 1993, the recovery proceeding can be initiated only when a proper opportunity of hearing has been afforded to him and as per Section 84(2) of the Act the recovery proceeding can not be initiated as arrears of land revenue and would pray for declaration of recovery proceeding of amount of Rs.45,113/- is illegal and void.

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The defendant/State filed their reply denying the allegation that after acceptance of the construction work and before starting it

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the plaintiff has executed an agreement, according to which the construction work has to be carried out within one year. The plaintiff has only done partial work of construction of wall i.e. plinth, therefore, the said wall was fell down. It has also been contended that as plaintiff is well qualified person, it is not possible that he put his signature on a blank stamp paper. If the plaintiff has not fulfilled the terms & conditions of agreement within the stipulated time period and has left the work incomplete, cost of the construction work would be enhanced. The plaintiff has already done the work to the tune of Rs. 1676.22/- whereas he has received an amount of Rs. 3,910/- as cash which includes paddy and cash but he has not utlised the grant received by him therefore, order was passed after giving him proper opportunity of hearing and prayed for dismissal of the suit.

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Learned trial Court, on pleadings of the parties, has framed as many as six issues. The issue No. 1(a), 1(b), 2, 3 & 4 which are just & relevant for deciding the appeal read as under:-

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“1- ¼v½ D;k oknh e-iz- 'kklu ls nl gtkj :i;s xzke iapk;r] ?kqedk esa lfpoky; cukus gsrq ,d o’kZ ds vanj lfpoky; cukus dk bdjkj ugha fd;k Fkk+\

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¼c½ D;k oknh us fuekZ.k dk;Z dk 30 izfr'kr dke tu lg;ksx ls djkus dk bdjkj ugha fd;k Fkk\

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2- D;k oknh ls fuekZ.k dk;Z dh “krZ fy[ks fcuk dksjs LVkEi isij ij gLrk{kj djk fy;s gS\ ;fn gak rks D;k bdjkj dh 'krZsa oknh ij ca/kudkjd ugha gS\

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3- D;k izfroknh ds vf/kdkjh.k }kjk jkf'k olwyh ds vkns'k nsus ds iwoZ oknh dks lquokbZ dk leqfpr volj ugha fn;k x;k gS] gka rks izHkko\

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4- D;k oknh ds fo:) dh tk jgh olwyh dk;Zokgh voS/k gS] ;fn gak rks D;k olwyh dk;Zokgh dks LFkkbZ fu’ks/kkKk }kjk jksdk tkuk pkfg,\”

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Plaintiff to substantiate his case has examined himself as PW1 and Neelkanth Sahu as PW02, Nelsingh (PW-03) and Smt. Parvati Vaishnav as (PW-04) and exhibited documents list of demand (Ex.P-1), the reply submitted before the Tahshildar,

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Dhumka (Ex. P-2), letter written to the Collector, Rajnandgaon (Ex.P-3), order passed by the Project Officer for Collector, Rajnandgaon (Ex.P-4), letter submitted by the plaintiff (Ex.P-5), demand notice (Ex.P-6), memo dated- 30.08.1988 (Ex. P-7), memo dated 25.9.1982 (Ex.P-8) by Block Education Officer, Rajnandgaon, memo written by concerned President (Ex.P-9) & its receipt (Ex.P-10) whereas the defendant/State to substantiate his case has examined witness namely Y. R Devhare, Dy. Director Panchayat and welfare Department, Rajnandgaon and exhibited the documents i.e. proposal of construction of Secretariat Building dated 4.10.1978 (Ex.D-1), Agreement (Ex.D-2), Stamp paper (Ex.D-4), order dated 13.12.1978 passed by SDO (Ex.D-5), order dated 28.08.1982 (Ex.D-6), Memo of Block Education Officer (Ex.D-7), copy of note-sheet dated 29.11.1982 (Ex.D-8), memo of Collector (Ex.D-9), Appendix “A” (Ex.P-10), Appendix “B” (Ex.P-11), Receipt (Ex.P-12) & order dated 12.3.1979 (Ex.D-13), Estimate (Ex.D-14); Appendix -6 (Agreement) (Ex. D-15); order granting technical acceptance for construction of Sachivalaya Bhavan (Ex.D-16); recovery certificate issued by the Collector, Rajnandgaon dated 13.3.1987 (Ex.D-17); order dated 11.03.1987 (Ex.D-18); Note-sheet (Ex.D19), Estimate (Ex.D-20); Estimate with map (Ex. D-21); Recovery Certificate (Ex.D-22); Recovery Certificate (Ex.D-23).

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The plaintiff, in his examination-in-chief, has reiterated the stand, which he has taken in the plaint and in the cross-examination he has admitted that he has moved an application to the Administrator, Janpand Panchayat, Rajnandgaon for construction of the Sachivalay wherein he has put his signatures and the document was executed as (Ex.D-1). He has stated that he is not aware about the fact that whether on the basis of Ex. D-1C, an agreement was executed between the Block Education Officer, Rajnandgaon with him. When the Court below has drawn attention of the plaintiff towards the documents Exs. D-2 and D-3, he stated that he has put his signature only on the

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blank stamp paper but he has admitted his signature on the stamp paper. He has also admitted that stamp paper, which has been purchased from the vendor, name of the purchaser has been shown and his name has been written but he is not the purchaser of the same. He has stated that for construction of Sachivalay Bhavan, the Government has given him Rs. 5,000/cash and rice valued at Rs. 5,000/-, in total Rs. 10,000/- and he has drawn the receipt thereof. He has stated that it is not correct that since he has not completed the construction work within the stipulated time period and even after revised estimate and the construction was carried out due to his negligence, which has increased the cost of the construction, as such, it is not his fault. He has stated that when the revised estimate was not received by him and the public contribution was not received by him, then he made a complaint before the Block Education Officer and Collector. He denied that Ex.D-6c vide order dated 29.11.1982 was issued wherein it has been directed that construction should be carried out up to 31.10.1982, otherwise recovery will be made and for which plaintiff will be held to be responsible.

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Nelsingh (PW-2) has stated in his evidence that neither the partition wall fell down nor the bricks were stolen. He further deposed that construction work of the school building remained incomplete and slab could not be installed and when the valuation of the work was done, at that time the window and bricks were also stolen.

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When the trial Court put a query to the plaintiff that when the bricks and other articles were stolen, then what steps he has taken, he has stated that it was outside of the village and he is not doing patrolling to it, therefore, he did not lodge any report with regard to the aforesaid incident. The plaintiff has examined again wherein he has admitted that the proposal has already been produced by the village panchayat with regard to stolen of the bricks and windows.

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Other witness Smt. Parwati Vaishnav (PW-4), Sarpanch of the

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Village Ghumka, has stated in her cross-examination that after completion of the tenure of the plaintiff as Sarpanch, Dharamchand Lunia, the then Sarpanch, has completed the remaining work of school building in the village. She cannot say that after completion of tenure of plaintiff as Sarpanch of the said Village, Dharamchand Lunia has completed the work of school building, gram panchayat Bhavan. She has further deposed that it is incorrect to say that complete wall fell down and the land has become plain. She has also deposed in her crossexamination that she has not seen the record of the work done, as the said record is with the Secretary of the Village and not with the Sarpanch of the Village. She has also deposed that it is incorrect to say that plaintiff has not completed the work of school building and Secretariat building and it is incorrect to say that the plaintiff has only done partial work of construction of wall i.e. plinth of the wall, therefore, the said wall fell down.

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Y.Y. Devhare, Deputy Director, Panchaya & Samaj Sewa Vibhag, Rajnandgaon was examined as DW-1. He has deposed in his cross-examination that it is incorrect to say that before starting the recovery proceedings against the plaintiff, proper opportunity of hearing has not been afforded to him and there is no document available on record, which would demonstrate that the plaintiff has not been afforded due opportunity of hearing against the recovery proceedings initiated against him. A perusal Document Ex. D-8(c) would show that the proper opportunity of hearing has been given to the plaintiff before starting recovery proceedings against the plaintiff.

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Learned trial Court, after appreciating the evidence and material available on record, has dismissed the plaintiff's suit. The trial Court while deciding the issue No. 1(A) that whether any agreement has been executed between the State Government and the plaintiff with regard to construction of Secretariat building within a period of one year, has recorded a finding in affirmative and while deciding the said issue the trial

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Court has recorded its finding that the agreement was executed between the plaintiff and the State Government with regard to construction of Secretariat building in the Gram Panchayat Ghumka in one year. While deciding the issue whether the trial Court before starting the recovery proceedings against the plaintiff, any opportunity of hearing has been afforded to the appellant/plaintiff or not, the trial Court after appreciating the evidence of Y.Y. Devhare, Deputy Director, Panchayat & Samaj Sewa Vibhag, Rajnandgoan, wherein, it has been stated that Ex. P/8 was sent to Sarpanch for recovery proceeding by the Block Officer as for construction of all the three works additional expenditure has been incurred by the Government. Accordingly, the trial Court dismissed the suit. Being aggrieved & dissatisfied with the judgment & decree of the trial Court, the appellant/plaintiff preferred first appeal under Section 96 of the CPC challenging the same before this Court.

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Learned counsel for the appellant/plaintiff would submit that finding recorded by the first appellate Court while dismissing the plaintiff's suit is perverse and contrary to law. He would submit the in view of the documents and evidence available on record, judgment & decree passed by the trial Court deserves to be set aside.

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On the other hand, learned counsel for the State/defendant supporting the impugned judgment & decree passed by the trial Court would submit that the impugned judgment is well merited, which does not call for any interference by this Court in the instant appeal. He further submits that the plaintiff is well qualified person and he has admitted his signature on the document (Ex.P-3), therefore, it cannot be said that he has put his signature on the blank paper. He further submits that such defence cannot be taken by the plaintiff that he did not know the contents of the agreement, therefore, he did not complete the work within the stipulated period i.e. one year and, therefore, the appeal filed by the appellant being without substance is liable to

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be dismissed.

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I have heard learned counsel for the parties and perused the material available on record with utmost circumspection.

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From the evidence and material on record, it is evident that the stand taken by the plaintiff that he has put his signature on the blank stamp paper wherein the respondents have annexed the terms & conditions of the agreement, has not been proved by the plaintiff by adducing proper evidence as burden lies upon the plaintiff as it is well settled legal position that initial onus is always upon the plaintiff to prove the fact and if he discharges that onus and makes out a case which entitles him to a relief, then onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. In this case nothing has been discharged by the plaintiff. The plaintiff has not proved by adducing cogent evidence on record that he has put his signature in the blank stamp paper and thereafter, the terms of agreement has been annexed by the respondents. From the record, it is also proved beyond doubt that the construction work was not completed within the stipulated period which was essential for the plaintiff to declare the recovery proceeding bad in law. The plaintiff is unable to prove that in a blank stamp paper he has put his signature and also to prove that construction has to be carried out within one year. The plaintiff has unable to discharge his burden which is required to be discharged as held by Hon’ble the Supreme Court in case of Anil Rishi vs Gurbaksh Singh ( 2006) 5 SCC 558 wherein it is has held as under:-

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“There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make

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that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.

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Hon'ble Supreme Court again in the case of Rangammal vs. Kuppuswami and another (2011) 12 SCC 220 has held as under:-

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It has been further held by the Supreme Court in the case of State of J& K vs. Hindustan Forest Company, 2006 (12) SCC 198, wherein it was held that the onus is on the plaintiff to positively establish its case on the basis of material available and it cannot rely on the weakness or absence of defence to discharge onus.

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It was still further held by this Court in the matter of Corporation of City of Bangalore vs. Zulekha Bi, 2008 that it is for the plaintiff to prove his title to the property. This ratio can clearly be made applicable to the facts of this case for it is the plaintiff who claimed title to the property which was a subject-matter of the alleged sale deed of 24.2.1951 for which he had sought partition against his brother and, therefore, it was clearly the plaintiff who should have first of all established his case establishing title of the property to the joint family out of which he was claiming his share. When the plaintiff himself failed to discharge the burden to prove that the sale deed which he executed in favour of his own son and nephew by selling the property of a minor of whom he claEven no witness was examined in his support with regard to supply of material. The Appellate Court has considered imed to be legal guardian without permission of the court, it was clearly fit to be set aside by the High Court which the High Court as also the courts below have miserably failed to discharge.

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Further, stand taken by the plaintiff that before issuance of recovery notice against him, he has not been afforded any proper opportunity is found incorrect on the basis of material on record, as the document Ex.D-8(c), which is on record, would

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demonstrate that before starting the recovery proceedings against the plaintiff, he was afforded opportunity of hearing by issuing notice which has been replied by the plaintiff. Thus, considering the overall facts & circumstance of the case and material available on record, I am of the view that the trial Court has not committed any illegality or perversity in passing the impugned judgment & decree dismissing the suit warranting interference by this Court.

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Consequently, the first appeal being devoid of substance is liable to be and is hereby dismissed. No order as to costs.

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A decree be drawn up accordingly.

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Sd/-

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(Narendra Kumar Vyas)

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Judge

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Amita

Damodar Prasad Sharma v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Damodar Prasad Sharma v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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