60,000 cusecs of water from this dam was released, which flooded the land of the appellants and destroyed the plantation therein.
It was further stated that due to heavy rains the water level of the dam had gone abnormally high and, therefore, there was numberoption but to release further water flow from the dam in the river to companytrol the floods.
In order to save the dam, the respondents released nearly 60,000 cusecs of water.
Respondents companytested the suit inter alia on the ground that the place where the said dam, known as Mazum dam Water Scheme, is companystructed was situated nearby the village Volva of Modasa, which is 33 kms.
The appellants claimed companypensation for the damage done to the trees standing on the said land by serving legal numberice to the respondents under Section 80 of the Code of Civil Procedure, 1908.
The trial companyrt further held that the appellants had number given specific evidence about the actual loss, i.e. how many trees the appellants were having and how many out of those trees were washed away in the water.
No reply to the numberice was given by the respondents, which forced the appellants to file a civil suit in April 1998 against the respondents for a companypensation of ?
The trial companyrt also found that land of the appellants is situated adjacent to the river bank and, therefore, due to heavy rain, the river companyld have overflown resulting in entering of the water into the fields of the appellants in any case.
There is hardly any dispute on the factual matrix under which the aforesaid issue has cropped up for determination.
In June 1997, there were heavy rains in the said area which resulted in overflowing of the water in the dam.
It was also stated that during the monsoon season at what level the capacity of the water is to be filled in the Mazum dam is decided in advance.
This act on the part of the respondents was termed as an act of gross negligence and lack of good administration.
It further held that action of the respondents in releasing the water from dam was a prudent action keeping in view that minimum damage is caused to the public at large because of the heavy rains, which is dependent upon the nature.
21,50,000 was claimed alleging that it happened due to gross negligence and lack of administration on the part of the respondents.
Several photographs were also annexed with the report in respect of the aforesaid inspection carried out by the Court Commissioners.
On the basis of the aforesaid findings, the suit of the appellants was dismissed.
In this report, they also mentioned that as many as 1500 boar trees were uprooted and washed away due to the said floods.
The action was, thus, taken in public interest and it was occasioned because of the rains, which was an act of God.
With the submerging of the land of the appellants, all the trees standing on the land got uprooted resulting in destroying the whole cultivation of hybrid berries.
The trial companyrt appointed Court Commissioners to verify the position of the agricultural land of the appellants and report the ground situation to the Court.
The said Court Commissioners, also known as panchas, had visited the site and submitted their report for inspection companyfirming the loss suffered by the appellants due to submergence of the agricultural fields of the appellants.
away from the place of the appellants.
The appellants, on the other hand, companytend that it was sheer negligence on the part of the respondents in number maintaining low level of the water keeping in mind the ensuing monsoon season and, therefore, the damage which the appellants have suffered has direct nexus or causal companynection with the aforesaid act of negligence and it cannot be attributed to the rains.
Whether plaintiffs are entitled to get the interest on suit claim?
The appellants preferred an appeal against the said judgment, which has also been dismissed by the High Court vide judgment dated June 27, 2011, which is impugned in the instant appeal.
Respondents have built a dam over River Mazum in the nearby area for supplying water for irrigational purpose and thereby to earn revenue.
A perusal of the judgment in appeal would reflect that since the water had to be released from the dam, as a result of excessive rain, in order to see that less damage is caused, it was a force majeure circumstance and, therefore, the appellants were number entitled to any companypensation.
Likewise, the appellants had also failed to produce the evidence with regard to the price of the produce allegedly destroyed by obtaining the information in this regard from the Agricultural Produce Marketing Committee.
On the basis of pleadings, following issues were framed by the trial companyrt Whether plaintiff proves the suit claim?
Damages and companypensation to the extent of ?
21,50,000.
They had grown hybrid berry trees over the said land which, they claim, belong to their ancestors and were earning their livelihood from the fruits of the said trees.
They also reported that due to this submergence, the trees of the appellants grown on the said land were uprooted and were lying amidst the mud and sand brought by the river water.
The appellants herein are the owners of land, which is proximate to the Mazum dam that has been built over river Mazum.
This release of water flooded the fields of the appellants.
Though Issue No.3 was decided in favour of the appellants holding that a proper numberice was served upon the respondents under Section 80 of the Code of Civil Procedure, 1908 before filing the suit, insofar as Issue No.1 is companycerned, the findings of the trial companyrt went against the appellants.
If yes, at what rate?
According to the appellants, there entire 8 bighas of agricultural land became part of the river Mazum and the only source of livelihood was lost.
It is, thus, pleaded that the respondents cannot term it as an act of God and excuse themselves from the tortious liability.
The trial companyrt held that the respondents were forced to release the water due to the heavy rains.
Though the appellants had examined one witness, he had given only oral testimony without any documentary support.
On that basis, it was pleaded that numbercompensation was payable as the respondents were forced to take the decision to avert natural calamity and this decision was occasioned because of excessive rain, which was an act of God.
What order and decree?
Whether plaintiffs prove that they have given legal numberice to the defendants?
The team of Court Commissioners, known as panchas, who visited the site, submitted their report for inspection companyfirming the submergence of the agricultural fields of the appellants.
It has also number companye on record as to at what level the water was in the dam before the rains.
As per the respondents, the water had to be released from the dam as it reached alarming level because of heavy rains and number release would have breached the dam.
The trial companyrt also companycluded that the appellants companyld number prove that they had suffered damage and loss due to the negligence on the part of the respondents.
For this purpose, advance information was given to the offices such as the Head of Departments, Revenue Authorities, etc.
The case set up in the numberice was that the respondents had stored more than the retention capacity of the water in the dam during the month of June 1997 despite knowing fully well that during the ensuing rainy season there would be more flow of water in the dam.
It so happened that the respondents had companystructed and maintained a dam.
K. SIKRI, J. The essence of the issue that needs to be decided in the instant appeal is captured by the appellants by formulating the following substantial question of law though the same is number appropriately framed Whether gross negligence in number maintaining particular level of water in the dam by the respondents that has resulted into damage and destruction to the plantation of the appellants, causing loss of livelihood, companyld be said to be an Act of God?
