Kunwar Singh Rawat vs State of Uttaranchal and Another

Rajesh Tandon, J.—Heard Sri R.P. Nautiyal, counsel for the appellant and Standing Counsel for the respondents.

Present appeal has been filed against the judgment and order dated 15.02.2005 passed by the District Judge, Rudraprayag in Civil Suit No. 13 of 2004.

Briefly stated the plaintiff-appellant has filed a suit for recovery of Rs. 1,20,000 against the defendants before the District Judge, Rudraprayag on the ground that the respondent No. 2-Principal, Government Inter College, Kotma got a sum of Rupees Four lakhs from the government for construction of four rooms in the college. The Principal constituted a Construction Committee of some reputed persons. The committee invited tenders and petitioner gave highest bid, therefore, contract of construction was given to the plaintiff. He has pledged 5% of tendered amount as security in favour of the Principal. According to the plaintiff, he has constructed four rooms in the college and Principal has paid him Rupees Three lakhs in three instalments. He has completed the work on 22nd May, 2001 and requested the Principal to make payment of the balance amount forthwith. On 15.07.2001, there were heavy rains and due to landslide a large quantity of debris collected in the rooms. The Principal of the college informed the District Magistrate, Rudraprayag, S.D.M. Ukhimath and Joint Director of Education regarding heavy landslide and damage caused to the school building by huge quantity of debris.

The Construction Committee requested the plaintiff to assist in cleaning the rooms. According to the plaintiff he removed the debris from two rooms and made them able to sit and study on his own expenses in the public interest. The Construction Committee recommended for payment of his balance amount but the Principal of the college did not pay him the balance amount of Rupees One lakh and Rupees Twenty thousand of security amount.

Defendant No. 2-Principal of the college has filed written statement and denied the allegations made in the plaint. The respondent No. 2 has denied that the rooms were damaged due to heavy rains and landslide. On the contrary it has been alleged that the rooms were damaged due to inferior quality of construction by the plaintiff.

On the pleadings of the parties, the District Judge has framed the following issues:

(1) Whether on 15th July, 2001 due to heavy rain and landslide behind the school building, two rooms were damaged? If so, its effect?

(2) Whether the construction raised by the plaintiff was not right and building was damaged due to lacuna in the construction of the building? If so, its effect?

(3) Whether the plaintiff has to repair the walls and rooms? If so, its effect?

(4) Whether the plaintiff is entitled to get any amount? If so, its effect?

(5) Relief.

To prove his case, the plaintiff has examined PW 1 - Kunwar Singh, PW 2 - Pratap Singh and PW 3-Mohan Singh. The defendants have examined Madhawa Nand Purohit as DW 1. Besides this the plaintiff has also filed report of the committee, letter of the Principal and letter dated 09.04.2002 written by Kunwar Singh to the Principal. The defendants have filed Ex. 1, letter of the Principal and report of physical verification of the construction by the Principal, Government Inter College, Guptkashi.

The District Judge has held that the plaintiff is responsible for repair of the school building and he is not entitled to any amount till he gets the building repaired and submits certificate in this connection from a responsible agency.

Counsel for the appellant has submitted that the District Judge was wrong to hold that the plaintiff is liable to repair school building. The plaintiff has already constructed the building but due to heavy rains and landslide rooms were damaged and once the plaintiff has completed his contract, he is entitled to get the entire amount.

In this case it has to be seen, whether the plaintiff has completed construction work of four rooms according to the contract given to him. Paper No. 38-ka/3 is a copy of letter dated 16.07.2001 sent by respondent No. 2 to the District Inspector of Schools, Rudraprayag and copies endorsed to the District Magistrate, Rudraprayag and S.D.M., Ukhimath. The extract of this letter is as under:

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vr% lwpuk vkidh lsok esa vko;''d dk;Zokgh gsrq izsf"kr A

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Further, the District Inspector of Schools called for the report of Sri Madan Singh Rawat, Principal, Government Inter College, Guptkashi. His report is Paper No. 38-ka/4 on the record. In his report dated 25.09.2001 he categorically stated that four rooms were completely constructed by the plaintiff, in which doors, windows, etc. were affixed but due to landslide they have been damaged and become inhabitable for teaching students.

The letter of respondent No. 2-Principal, G.I.C., Kotma and physical verification report dated 24.09.2001, themselves submitted by the respondents, support the assertion of the plaintiff that he already has completed the construction of the building.

This assertion of the plaintiff further finds support by his letter dated 22.05.2001 by which he has requested to make final payment to him as he has completed the construction. On this letter an endorsement has been made by the Principal, G.I.C., Kotma to the following effect:

Hkou fuekZ.k lfefr viuh vk[;k izLrqr djs rkfd vfUre Hkqxrku dh dk;Zokgh lqfuf''pr gks lds A

The trial court vide order dated 03.05.2003 appointed Sri Shushil Chandra Bhatt as Advocate Commissioner who visited the spot and submitted his report dated 18.05.2003. According to the report of the Advocate Commissioner rooms of the school building Were damaged due to landslide. Boulders were still present on the roof of the rooms. Debris is collected inside the rooms. Breast-wall of the building damaged due to landslide.

Thus, the report of the Advocate Commissioner also supports the assertion of the plaintiff that the rooms of school building damaged due to landslide and not due to any fault on the part of the plaintiff.

The trial court has held mat the burden to prove that the plaintiff has completed the work was on the plaintiff but he has not filed tender and agreement of the contract. I am not fortified with the findings of the trial court. The agreement and tenders were in possession of the respondents who assigned the contract to the plaintiff and if the respondents claim that the plaintiff has not fulfilled his part of contract, they can easily prove the same by way of the documents already in their possession. Contrary to the same respondent No. 2 himself has written to his higher authorities that the construction was completed but rooms were damaged due to heavy rains and landslide. Thus, the respondents cannot blow hot and cold in the same breadth.

Thus, the plaintiff has proved his case mat he was given contract for construction of four classrooms for Rs. 4,00,000. He has deposited Rs. 20,000 as security money. He has received a sum of Rs. 3,00,000 in instalments. He completed construction work and asked the respondent No. 2 to make payment of balance amount to him but the respondent No. 2 did not pay him the balance amount. In the meanwhile the rooms were damaged due to heavy rains and landslide. Thus, after completion of the construction work, the plaintiff cannot be held responsible for the damage caused to the classrooms.

Thus, the plaintiff was successful in proving his case and the suit of the plaintiff is entitled to be decreed. Accordingly, the appeal is allowed. The judgment and decree dated 15.02.2005 passed by the District Judge, Rudraprayag is set aside. The suit of the plaintiff is decreed.

Let the lower court''s record be remitted back for necessary compliance of the order. No order as to costs.