Kerala High Court · 2010

K. SURENDRA MOHAN, J.------------------------------------------------------------A.S. NO: 62 OF 1996 & Cross objections -----------------------------------------------------------Dated this the 13th May, 2010.JUDGMENT This is an appeal filed challenging the judgment and decreedated 31.10.1994 of the Principal Sub Court, North Paravur inO.S.581/1992. The appeal is filed by Puthenvelikkara Panchayat,the defendant in the suit. The plaintiffs in the suit are therespondents in the appeal. The respondents have filed crossobjections contending that the finding of the court below that theamounts incurred as expenditure for cultivation was liable to berecovered from the amounts granted to them was unjustified. Boththe appeal and cross objections are disposed of together.2. The suit was filed by the respondents/plaintiffs against thePanchayat for the recovery of damages. The plaintiffs are residentsof the Puthenvelikkara Grama Panchayat in Paravur Taluk. They arefarmers and owners of the plaint schedule properties. Theplaintiffs as well as their predecessors were conducting paddycultivation in the property from ancient times. According to them,they used to conduct three crop cultivation and the season forpuncha cultivation is from January to March every year. The water AS 62/96 & Cross Objections 2required for Puncha cultivation used to be collected from the thoduadjacent to the plaint schedule property. It is the contention of theplaintiffs that they used to get 450 paras of paddy and 4500bundles of hay and that the plaintiffs being farmers, the incomefrom the paddy fields was their main source of livelihood. In orderto prevent the entry of salt water into the paddy fields thePuthenvelikkara Panchayat used to construct a bund in the thoduunder the Thondalpalam, every year. The construction of the bundwas for protection of the paddy fields.3. The plaintiffs were under the impression that such a bundwould be constructed by the Panchayat during the current yearalso. Therefore, they effected cultivation in their paddy fields.However, the Panchayat did not construct the bund and sluice, asexpected by the plaintiffs. It is contended by the plaintiffs that thebund and sluice should have been constructed before the 15th ofNovember. But, since the Panchayat failed to construct the bund,salt water entered the thodu and from there into the paddy fields.Consequently, the entire cultivation in the paddy fields weredamaged. Further, by the entry of salt water into the fields, theplaintiffs were prevented from cultivating the paddy fields for thenext three years. According to the plaintiffs, the loss was caused AS 62/96 & Cross Objections 3due to the negligence on the part of the Panchayat, in notconstructing the bund under the Thondalpalam in the Thodubefore the 15th November. The loss caused to the plaintiffs isquantified at Rs. 29,500/- and a decree for recovery of the saidamount from the Panchayat was sought for by them in the suit.4. The suit was contested by the defendant, contending thatthe suit was not maintainable, filed without any bonafides and thatthere was no cause of action for filing the suit against thePanchayat. It was contended that the suit was filed without issuingnecessary notice to the Panchayat. It is further contended that thedefendant does not know whether the plaintiffs are farmers orwhether three crop cultivation was being conducted in the paddyfileds, as alleged. The case of the Panchayat is that, every year withthe permission of the Panchayat, the farmers in the locality usedto construct a bund in the thodu under the Thondalpalam, for theprotection of the Puncha Cultivation and a sluice also used to bemaintained. The Panchayat used to give necessary financialassistance for the construction of the bund and sluice. TheExecutive Officer of the Panchayat used to oversee the work, on thebasis of the decision taken by the Executive Committee. Theallegation regarding the quantity of paddy and hay that the AS 62/96 & Cross Objections 4plaintiffs used to get from the cultivation is denied. According tothe Panchayat, it was not its responsibility to construct the bundand the same used to be constructed by the farmers. Therefore,the allegation that the plaintiffs had undertaken the cultivation onthe belief that the Panchayat would construct the necessary bundsis denied. The Panchayat used to act for the public good and, asper the decision of the Panchayat on 22.8.1991 a resolution wastaken by the committee and necessary works were done forpreventing the entry of salt water into the Thondalthodu in WardNo:8. The committee was convened under the Presidentship ofT.K.Chathan and the work was entrusted to the nominee, Shri.Varkey Solly. The allegation that because of the failure inconstructing the bund the cultivation of the plaintiffs was damagedby the entry of salty water is denied. It was contended by thePanchayat that there were a number of paddy cultivators in the areaand that none of them had complained against the defendant. ThePanchayat was not negligent in the discharge of its duties. Theplaintiffs were not entitled to recover any amount from thedefendants. Therefore, the defendant prayed for the dismissal ofthe suit. AS 62/96 & Cross Objections 55. The court below framed four issues on the above pleadingsand tried the suit. The evidence in the case consists of the oraltestimonies of P.Ws 1 to 5 and D.W.1 besides Exts. A1 to A3 andExts.B1 to B4 documents. After considering the evidence onrecord as well as the contentions of the rival parties, the courtbelow found that the plaintiffs were entitled to recover an amountof Rs.7,500/- from the Panchayat with future interest at the rate of12% per annum, with proportionate costs. Accordingly, the suit wasdecreed in part. The above appeal and cross objections areagainst the said judgment and decree.6. According to the counsel for the appellant, the duty of thePanchayat to maintain public roads, to provide lights on publicroads and public places, to construct drains etc. are provided underSection 57 of the Kerala Panchayats Act, 1960, hereinafter referredto as the 'Act'. It is pointed out that the said provision does notcast an absolute duty on the Panchayat to provide the saidconveniences or to make the constructions stipulated therein. Theduty under the said provision is discharged on the Panchayatmaking a reasonable provision, within the limits of its funds. Thecounsel has further contended that the plaintiffs are farmers whowere aware that salt water would enter the fields if the bund was AS 62/96 & Cross Objections 6not constructed. Therefore, they had started their cultivationknowing fully well that no bund had in fact been constructed.Consequently, they had only themselves to blame for the losssustained. According to the Panchayat it had done everything thatwas necessary to have the bund constructed in time by constitutinga committee and entrusting the construction work to a personnominated by the committee. The bund was not constructed onlybecause of the delay on the part of the committee. Therefore,according to the counsel, the Panchayat was not liable tocompensate the plaintiffs for the loss, if any sustained. On theabove grounds, it is contended that the court below went wrong inawarding compensation to the plaintiffs. 7. The counsel for the respondents have sought to sustainthe judgment and decree of the court below by pointing out thatSection 57(1) (j) read with Section 57(2)(i) of the Act casts acomposite duty on the Panchayat to construct and maintain thebund effectively and to ensure that salt water did not enter thepaddy fields of the plaintiffs. By not constructing the bund thePanchayat was guilty of gross negligence in the discharge of itsduty. As a result, salt water entered the paddy fields destroying thecultivation of the plaintiffs and causing loss to them. Because of AS 62/96 & Cross Objections 7the presence of salt in the fields, it also became impossible for theplaintiffs to undertake any cultivation for the next three years.Therefore, the Panchayat was liable to compensate them for theloss caused. According to the counsel, the court below erred indeducting the amount spent for cultivation from the compensationamount awarded to them. Therefore, they pray that the suit maybe decreed as prayed for, modifying the judgment and decree ofthe court below.8. I have heard counsel for the appellant as well as therespondent in detail. I have been taken through the pleadings inthe case as well as the evidence on record.9. The point that arises for consideration in the above appealis :-“Whether the Panchayat had a duty to constructa bund for irrigation purposes as claimed, in thedischarge of which duty there was negligence, causingloss to the plaintiffs?”10. It is admitted that the plaintiffs are the owners of theplaint schedule properties which are paddy fields in which they usedto undertake three crop cultivation. The puncha cultivation iscarried on during the period from January to the end of March andwater for the said cultivation is taken from the adjacent thodu is AS 62/96 & Cross Objections 8also not in dispute. For preventing the entry of salt water into thefields, a bund used to be constructed by the Panchayat in the thoduunder the Thondalpalam before the 15th of November every year.On the impression that such a bund would be constructed, theplaintiffs effected cultivation in the plaint schedule property. But,the defendant did not construct the bund and, therefore, the saltwater entered the paddy fields and destroyed the entire cultivation.The fact that the entire cultivation during the season was damagedis admitted.11. According to the defendant, the bund under theThondalpalam was to be constructed with the permission of thePanchayat by the farmers. The Panchayat used to give thenecessary permission and the farmers used to construct the bundand sluice. According to the Panchayat, the construction of thebund in the Thondalthodu was entrusted by the convenor of thecommittee to one Varkey Solly and that because of the negligenceof the said committee the bund was not constructed. 12. Section 57(1) of the Act enumerates elaborately, thematters with respect to which a duty is cast on the Panchayat.Different matters are enumerated in both clauses (1) and (2) of thesaid provision. The opening words of Section 57 reads as follows:- AS 62/96 & Cross Objections 9“Subject to the provisions of this Act and therules made thereunder it shall be the duty of aPanchayat, within the limits of its funds, to makereasonable provision for carrying out therequirements of the Panchayat area in respect of thefollowing matters namely:-x x x x x x x x2) Subject to the provisions of the Act and therules made thereunder a Panchayat may also,within the limit of its funds and wherever possiblewith Government aid, make reasonable provisionfor carrying out the requirements of the Panchayatarea in respect of the following matters namely13. It may be seen from the wording of the above provisionthat the duty of the Panchayat is to make 'reasonable provisions'for carrying out the duties enumerated, “within the limits of itsfunds”. However, it is clear from a reading of Section 57(1)(j)conjointly with clauses (i) of Sub-Section (2) thereof that a duty hasbeen cast on the Panchayat to construct and maintain bunds similarto the one in the present case. In the present case, the Panchayathas no case that it had any constraint of funds. In fact the case of AS 62/96 & Cross Objections 10the Panchayat is that a decision was taken by the Panchayat on22.8.1991 for taking necessary action to prevent the entry of saltwater into the Thondalthodu and as per the resolution, necessaryworks were done. A committee was convened under thePresidentship of one T.K.Chathan and the work was entrusted tothe nominee of the committee who is one Varkey Solly. The case ofthe Panchayat is that due to failure on the part of the committeethe bund was not constructed. However, having decided to doeverything that was necessary to prevent the entry of salt water intothe thodu and having initiated action for the construction of abund, it is not open to the Panchayat to wash its hands off and todisclaim responsibility for the non-implementation of the work. ThePanchayat cannot escape liability by putting the entire blame on thecommittee that was entrusted with the implementation of theconstruction. It cannot be denied that the Panchayat had a duty tosupervise the functioning of the committee and to see that itsdecision was implemented. It is worth noticing that the ExecutiveOfficer of the Panchayat was a member of the said committee. Astatutory authority cannot escape from the responsibility ofdischarging its statutory duty by putting the blame on anotherfunctionary. The Committee was formed for implementing the AS 62/96 & Cross Objections 11decision of the Panchayat. Therefore, if the implementationcommittee was not functioning efficiently, the Panchayat had aduty to cancel the work and to get the same executed by adoptingsome other modus. The Panchayat was very well aware that itsomission to construct a bund would result in serious adverseconsequences to the farmers of the locality. As a statutory body,the Panchayat ought to have conducted itself in a more responsiblemanner. Therefore, it is found that the Panchayat was certainlyresponsible to ensure that a bund was constructed within time soas to prevent the entry of salt water into the paddy fields. 14. The next question to be considered is whether there wasnegligence on the part of the Panchayat in constructing the bund.P.W.1 is the second plaintiff. He has deposed that usually the bundand sluice used to be constructed before the 15th of Novemberevery year. However, during 1991, the bund was constructed onlyduring December 1991 and that in the meanwhile the salt waterentered the Thodu and caused damage to the paddy cultivation. Hefurther alleges that even the construction of the bund was defectivefor, there was a hole in the bund and that also was another causefor the damage. A sluice was not installed at that time. Hefurther deposed that he had issued a notice Ext.A1 to the AS 62/96 & Cross Objections 12Panchayat but, the Panchayat did not issue any reply. He had alsotaken out a commission in O.S.248/92 and had got the damagessustained, assessed.15. A neighbour of the plaintiffs has been examined as P.W.2.He has also deposed that the bund and the sluice in the Thoduused to be constructed during the month of November every yearand the Puncha cultivation of the plaintiffs was damaged becausesuch a bund was not constructed in 1991. He has further deposedthat every year during the time when the bund was to beconstructed, a convenor used to be elected by the committee of thecultivators and the said committee used to decide when the bundwas to be constructed. It used to be constructed in November sincethe salt water used to enter the thodu during high tide in“Vruchikam”. He admits that it is on the basis of the informationgiven by the farmers to the Panchayat regarding election of theconvenor that steps for construction of the bund used to be takenby the Panchayat. A convenor who was nominated for theconstruction of the bund is examined as P.W.3. According to thiswitness, the Panchayat used to entrust him with the construction ofthe bund and after construction of the bund the expenses wouldbe paid by the Panchayat. According to him during 1991, the AS 62/96 & Cross Objections 13sluice remained damaged and it was not repaired by the Panchayat.He has also stated that he was entrusted with the construction ofthe bund only at the end of November. By that time the high tide inVruchikam was over. Since the bund was not constructed beforethe high tide, during Vruchikam the salt water from the thoduentered the paddy fields and damaged the cultivation. He claimedthat he had constructed the bund within 2-3 days after theconstruction was entrusted to him. He denied that he was electedby the farmers. He used to approach the Panchayat and used to beentrusted with the construction. He has alleged that he hadapproached the Panchayat during October 1991 for theconstruction of the bund. But he was informed that the committeehad not been convened, that after two weeks he had againapproached the Panchayat and he was entrusted with theconstruction. According to him he completed the constructionimmediately. He has also stated that it was after construction ofthe bund he had executed the agreement with the Panchayatregarding the construction of the bund.16. The Panchayat has produced its file which has beenmarked as Ext.B1. Ext.B1 shows that the work of construction ofthe bund was entrusted to P.W.3 as per a resolution dated AS 62/96 & Cross Objections 1430.11.1991 of the Panchayat committee, which is Ext.B1(a). The fileshows that a decision to construct the bund had been taken asearly as on 24.8.1991. However, the work is seen entrusted toP.W.3 only after more than three months thereafter. There is noexplanation for this delay. Since the Puncha cultivation is doneduring the period from January to March, the preliminary works likeploughing of the fields etc. had to be done much earlier. It is theactual sowing of the seeds that is done during January 1991.Therefore, since the cultivators very well know that the bund hadnot been constructed, they should not have proceeded with thecultivation, it is contended. According to P.W.1, he had not knownthat the bund had not been constructed. He had no directknowledge regarding the construction of the bund in 1991 and henever used to enquire about it. It has been stated by P.W.1 in re-examination that it would not be possible for him to note thepresence of salt water in the paddy field because the salt waterwould remain at the bottom. Though the court below has foundthat had the cultivators been vigilant they would have come to knowabout the presence of salt water in their paddy fields, the same isnot based on any evidence. The said finding is unjustified for thereason that it is not possible for a person to detect the presence of AS 62/96 & Cross Objections 15salt water and it is not fair to blame the cultivators for not havingdetected the same, especially because no person could expect suchan eventuality when the usual practice of the Panchayat during thepreceding years had been to construct the bund in time.17. However, as rightly found by the court below there is noindependent evidence regarding the income that the plaintiffs weregetting from their agricultural operations, during the previousyears. Therefore, the court below has proceeded to estimate theincome that could be reasonably expected to be received by theplaintiffs. The evidence of P.W.4 who claims to be a dealer in paddyhas been relied on by the court below for the purpose ofcalculation of the loss. The court below has estimated the incometo be Rs.18,750/- being the value of the paddy and hay that theplaintiffs would have received. Out of the said amount, an amountof Rs.11,000/- has been deducted as expenses and an amount ofRs.7,500/- has been awarded as compensation. The amount ofRs.11,000/- has been deducted relying on the deposition of P.W.1that he has to spent about Rs.11,000/- for the cultivation. 18. It cannot be said that the reasoning of the court below isfaulty and unsustainable. In view of the finding that the panchayathad been negligent in the discharge of its duties viz., by their AS 62/96 & Cross Objections 16omission to complete timely construction of the bund and sluice,the plaintiffs had to be awarded compensation for the loss causedto them as a result of the said negligence. The plaintiffs are inpossession of about 2 acres of paddy fields and the amount ofRs.7,500/- granted cannot be termed as excessive in any manner.The plaintiffs had to suffer the said loss due to no fault of theirs.Therefore the finding of the court below that the plantiffs areentitled to recover an amount of Rs.7,500/- from the respondentPanchayat with future interest is justified in the facts andcircumstances of the case. I do not find any grounds to enhance thecompensation granted. The findings of the court below do not callfor any interference. For the foregoing reasons, the judgment and decree of thecourt below are confirmed and the appeal and Cross Objections aredismissed without costs.K. SURENDRA MOHANJudgejj AS 62/96 & Cross Objections 17K. SURENDRA MOHAN,J.-----------------------------------A.S.NO:62 OF 1996-----------------------------------JUDGMENT Dated: 13th May,2010