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SCA/13653/2008 3/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13653 of 2008
===================================
SAVJIBHAI
PARSHOTTAMBHAI KAGATHARA - Petitioner(s)
Versus
SECRETARY
& 3 - Respondent(s)
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Appearance :
MR
PREMAL S RACHH for Petitioner(s) : 1,
MR. Nikhilesh Shah, AGP for
Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 1 -
4.
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 01/02/2010
ORAL
ORDER
1. By
way of this petition under Article 226 of the Constitution of India,
the petitioner has prayed for an appropriate writ, direction and
order, directing the respondent nos. 1 and 2 to assess the reasonable
amount of damages caused to the Agricultural land of the petitioner
as well as damages caused to the Well, due to overflowing of the dam
water on account of defective design of the check dam and to award
the amount of compensation to the petitioner accordingly.
2. It
is the case on behalf of the petitioner that due to damage caused to
the agricultural land of the petitioner as well as Well on the land
bearing survey no. 176/12 situated at Village Nathuvadla, Dist.
Jamnagar due to overflowing of dam water on account of defective
design of the check dam constructed under Sardar Patel Participatory
Irrigation Scheme, petitioner has suffered huge damages, for which
the petitioner is entitled to compensation / damages caused to the
well as Well as agricultural land of the petitioner.
3. Shri
Rachh, learned advocate for the petitioner has vehemently submitted
that as such a report dated 24.7.2000 was addressed by the Deputy
Executive Engineer, Dhrol, to the Executive Engineer of Irrigation
Department of District Panchayat, Jamnagar inter alia, suggesting to
carry out the work for lowering of the matikaam and increasing the
height of the level of PALA (protection wall) so as to avoid any
untoward incident during heavy rainfall. It is submitted that still
nothing was done and as such the construction of the dam was not as
per the design and was defective from its inception. It is submitted
that in view of the above, the dam water entered into the
agricultural land of the petitioner bearing survey no. 176/12 and
damaged the standing crops, the agricultural land and Well
constructed by the petitioner on the land in question. It is
submitted that therefore, the petitioner is entitled to damages/
compensation for such damages. Shir Rachh, learned advocate for the
petitioner has heavily relied upon the communication dated 29.8.2007
addressed by the Executive Engineer, Sardar Patel Participatory
Irrigation Circle, Rajkot to the Section Officer, Narmada Water
Resources Department, State of Gujarat by which, according to the
petitioner the damage was assessed of Rs. 1.60 lacs. Therefore, it is
submitted that at least the petitioner is entitled to the damages /
compensation of Rs. 1.60 lacs. By making above submissions, it is
requested to allow the present Special Civil Application.
4. Petition
is opposed by Shri Shah, learned AGP. An affidavit in reply is filed
on behalf of the respondent no. 3. It is specifically denied by the
respondent that any damage was caused to the agricultural land as
well as Well on the land bearing survey no. 176/12 by overflowing of
the water, which according to the petitioner was on account of
defective design of the check dam. It is submitted that as such the
petitioner had encroached the land in area of approximately 140 sq.
mtrs. It is submitted that had there not been encroachment by the
petitioner, no overflowing of water could have found enough space
(land) to get separated over resulting in to delusion / mitigation of
force of water and in turn even the way once again to get diverted
towards main water flow of the water of dam i.e. in the direction of
flow of dam water and thus setting mixed with the main flow. It is
submitted that in other words, the encroachment has obstructed the
flow of water and thereby resulting into the increased intensity of
the impact of the overflowing water which in turn has resulted into
pulling down of the temporary earthbund put up by the petitioner
himself and thus causing water flowing within the land of the
petitioner. Therefore, it is submitted that the alleged damage caused
to the petitioner agricultural land and the Well petitioner himself
is responsible. Therefore, it is requested to dismiss the present
Special Civil Application.
5. Shri
Rachh, learned advocate for the petitioner has relied upon the
communication dated 10.12.2009 by the District Inspector Land
Records, Jamnagar addressed to the petitioner informing the
petitioner that there is no change in the measurement of the land
bearing survey No. 176/8 occupied by the petitioner. Therefore, it is
submitted that there was no encroachment by the petitioner as
alleged.
6. Heard
the learned advocates for the respective parties at length.
Considering the aforesaid facts and circumstances and the case on
behalf of the respective parties, it appears to the Court that
petition involves disputed question of fact, which are required to be
adjudicated and considered by the Civil Court on leading the
appropriate evidence and on appreciation of evidence. It is the case
on behalf of the petitioner that petitioner suffered damages caused
to the agricultural land of the petitioner having Survey No. 176/12
as well as the Well in the said land due to overflowing of the dam
water on account of the defective design of the check dam under the
Sardar Patel Participatory Irrigation Scheme and, therefore, he is
entitled to damages. On the other hand, it is the specific case on
behalf of the respondent that overflowing of the dam water was not
on account of the defective design of the check dam but due to the
encroachment made by the petitioner which obstructed the way of the
natural water. The aforesaid disputed facts are not required to be
considered by this Court in exercise of powers under Article 226 of
the Constitution of India. If a suit is filed before the Civil Court
by the petitioner in respect of their respective claim on
appreciation of evidence the aforesaid aspect can be considered.
Now,
so far as the reliance placed upon the communication dated 29.8.2007,
addressed by Executive Engineer, Sardar Patel Participatory
Irrigation Circle, Rajkot to the Section Officer, Narmada Water
Resources Department, State of Gujarat in which it is stated that
the lost is caused to the extent of Rs. 1.60 lacs towards the damage
caused to the Well and others is concerned, it is to be noted that
the petitioner claim damages towards loss caused to the agricultural
land also and even otherwise mute question is who is responsible for
the damages. Only after it is established who was responsible for the
overflowing of the dam and damages further question with respect to
quantum of damages is required to be considered and the same can be
considered only if the suit is filed and evidences are led.
7. In
view of the above disputed question of fact, present Special Civil
Application is not entertained relegating the petitioner to file
substantive suit claiming damages. It is observed that this Court has
not expressed anything on merits in favour of either parties and it
is ultimately for the Civil Court to pass an appropriate decree in
accordance with law and on appreciation of evidence to be led before
it. With these, present Special Civil Application is dismissed.
(M.R.SHAH,
J.)
kaushik
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