Dismissed

State of Haryana v. Ashutosh and Anr.

Punjab & Haryana HC23 May 2012RSA/737/2011

Case brief

AI extract

What is this about?

In this second appeal, the State of Haryana challenged a decree directing repairs to water pipelines and awarding damages for house damage caused by leakage. The High Court dismissed the appeal, finding substantial evidence supported the lower courts' finding of public health department negligence, holding that no question of law arose to warrant interference.

What did the court decide?

The Second Appeal filed by the State of Haryana was dismissed.

State of Haryana Vs Ashutosh and Anr. — Public Procurement and Tenders | Punjab & Haryana HC (2012)

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RSA No.737 of 2011 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.737 of 2011 (O&M) Date of decision:23.05.2012

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State of Haryana and another

......Appellants

Vs.

Ashutosh and others

...Respondents

CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA.

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Present: Ms. Tanisha Peshawaria, DAG Haryana for the appellants.

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Mr. G.S. Jaswal, Advocate for the respondents.

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Tejinder Singh Dhindsa, J.

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State of Haryana-appellant/defendant is in second appeal before this Court.

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The plaintiff instituted a suit seeking a decree for mandatory injunction directing the defendants to make the necessary repairs in the water supply pipelines so as to stop the leakage/seepage therefrom. It was pleaded that such leaking water supply lines had been laid down in the street in between houses of the plaintiffs and further damages were sought for the construction/re-construction/repairs of their houses/building on account of such leakage alongwith interest at the rate of 18% per annum.

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Briefly noticed, the plaintiffs claimed to be the residents of Rang Mehal Mohalla within the local limits of Municipal Council,

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RSA No.737 of 2011 (O&M)

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Kaithal. It was pleaded that Public Health Department, State of Haryana was responsible for the supply of drinking water as also maintenance of the sewerage system available to the residents to the Kaithal town including the plaintiffs. In the year 2005, the plaintiffs had noticed major cracks that had developed in walls/floors of their houses and such damage had occurred on account of leakage/seepage in the water pipelines of the Public Health Department of State of Haryana. Written complaints were made in this regard, whereupon, a Junior Engineer of the Public Health Department was deputed, who visited the spot alongwith certain workers and upon digging out certain portion of the street in front of the houses of the plaintiffs, a severe leakage was found in the main water supply line. Such leakage was noticed at the points of connection given to old consumers of the locality earlier, which had subsequently been disconnected by the defendants. It was the claim of the plaintiffs that the foundations of their houses had got damaged, which consequently resulted and damaged of the floors/walls as also roofs of their houses and accordingly, the suit had been filed.

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The Trial Court vide judgment and decree dated 24.03.2009, decreed the suit filed by the plaintiffs and the defendants were directed to make necessary repairs in the water pipelines so as to stop the leakage. Further defendants No.1 & 2 were directed to pay an amount of Rs.3,59,307/- to plaintiff No.1 and Rs.1,60,514/- to plaintiff No.2 towards damages to their respective houses.

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RSA No.737 of 2011 (O&M)

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Aggrieved of the judgment and decree passed by the Trial Court, a civil appeal was preferred by defendants No.1 & 2 i.e. the State of Haryana through Collector, Kaithal and Public Health Department through Executive Engineer, Kaithal.

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Cross objections were also preferred by the plaintiffs seeking modification of the judgment and decree of the Trial Court to the extent that a provision be made for payment of interest on the damages allowed by the Trial Court. In terms of judgment dated 16.09.2010 passed by the Additional District Judge, Kaithal, the appeal preferred by the State of Haryana had been dismissed thereby upholding the judgment and decree of the Trial Court. However, the cross objection filed by the plaintiffs were allowed and the State of Haryana was also held liable to pay interest at the rate of 6% per annum on the damages allowed from the date of filing of the suit till the actual payment of the decretal amount.

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Respective counsel for the parties have been heard. Learned counsel for the State would vehemently argue that the water supply and sewerage system in the town of Kaithal, vests with the Municipal Council, Kaithal and the Public Health Department was merely maintaining the service on behalf of Municipal Committee. It was further argued that the house of the plaintiffs were old buildings and as such, the cracks etc. that had appeared, was on account of the old age and no damage had been caused on account of the alleged leakage. Counsel would further argue that the leakage, if any, was

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RSA No.737 of 2011 (O&M)

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from a personal water supply connection of the plaintiffs and not from the main water pipeline that was being maintained by the Public Health Department. Lastly, learned counsel for the State would contend that there was no basis for having awarded the total sum of damages amounting to Rs.5,19,821/- in favour of the plaintiff/respondents.

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On the other hand, learned counsel appearing for the plaintiff/respondent would argue that the impugned judgments and decrees passed by the Trial Court as also by the Lower Appellate Court are well reasoned and based upon due appreciation of evidence adduced on record. Counsel submitted that no interference in the same is called for by this Court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure.

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The only witness examined by the defendant/appellants before the Trial Court was Sh. H.K. Sharma, SDE, DW-1, who had admitted in his cross examination that it was the duty of the Public Health Department to maintain the sewerage as also water supply pipelines. DW-1 further admitted in his cross examination that for getting the water supply connection, an application is required to be made to defendant No.2 i.e. Public Health Department. Even the water connection was being released by defendant No.2 and the water charges were also to be deposited in the office of defendant No.2. DW-1 even admitted that he had never inspected the houses/buildings in question. On the other hand, Sh. R.K. Latka, SDO, who had been appointed as Local Commissioner by the Trial Court had inspected the

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RSA No.737 of 2011 (O&M)

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spot and submitted a report dated 09.09.2005, Ex.P-65. In such report, it had been clearly stated that the cause of damage to the houses of the plaintiffs was the continuous leakage/seepage of the water from the pipelines/joints. Such continuous leakage of water had caused heavy soil erosion underneath the houses of the plaintiffs and Local Commissioner had further stated that the damage caused to the houses of the plaintiffs was fresh and recent. The plaintiffs had examined Sh. S.K. Bhalla, retired SDO as PW-1, who proved on record the Loss Assessment Report, Ex.P-1, in terms of which damage to the tune of Rs.1,60,514 was caused to the house of plaintiff No.2 and damage to the extent of Rs.3,59,307/- was assessed to the house belonging to plaintiff No.1. Both the reports i.e. Ex.P-1 (Loss Assessment Report) as also the report of the Local Commissioner, Ex.P-65 were not subjected to any challenge in terms of filing objections before the Trial Court. No evidence had been led and adduced on record by the defendant/appellants to demonstrate the findings of such reports to be false or biased.

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The contention raised by the learned counsel for the State to the effect that the leakage, if any, was from a private water supply line of the plaintiffs is also misplaced. No material had been adduced on record to substantiate such contention that any private water connection had been obtained by the plaintiffs either from the Municipal Committee, Kaithal or from the State Public Health Department.

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RSA No.737 of 2011 (O&M)

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I find that it is on the basis of due appreciation of evidence adduced on record that both the Courts below have concurrently held that the damage caused to the houses of the plaintiffs was on account of the sheer negligence of the Public Health Department in not maintaining/repairing the main water supply line and the continuous leakage/seepage had caused the damage in question. The present appellants failed to adduce any evidence on record to show that the damage/cracks in the houses of the plaintiffs was on account of the construction being old in nature. On the contrary, the Local Commissioner specifically opined that the damage caused was recent and on account of the leakage/seepage of water in the foundations of the buildings concerned. The present appellants had not even raised any objection as regards the Loss Assessment Report, Ex.P-1 submitted by PW-1 Sh. S.K. Bhalla, retired SDO. As such, I do not find any basis that would warrant interference in the well reasoned impugned judgments and decrees passed by the Courts below.

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The present second appeal must accordingly fail as it does not raise any question of law much less substantial question of law.

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Appeal dismissed.

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May 23, 2012 harjeet

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(TEJINDER SINGH DHINDSA) JUDGE

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Note:

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Whether to be reported? No

State of Haryana v. Ashutosh and Anr.

Case brief

What is this about?

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State of Haryana v. Ashutosh and Anr.

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