SHYAM SUNDAR DAS Vs. MUNICIPAL COUNCIL BARIPADA

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of compensation for damages suffered by the act of the defendants.

(2.) Plaintiff-appellant is the owner of plot No. 3290, in khata No. 1101/3/318 in Ward No. 9 of Baripada Municipal area. Close to the west of his site, his brother had constructed a building in or about the year 1960. The plaintiff had got a plan for construction of a building sanctioned by the Executive Officer on 14-101974, vide Ext. 3. He had already constructed boundary walls on three sides of his site and was constructing the boundary wall to the western side before starting the construction of his building. On 1-3-75, at about 2.50 p. m. a notice was served by the Municipality through the Executive Officer to stop the work of the compound wall. By then the plaintiff had already raised the wall to a height of four feet. Again on that day at about 5.00 p. m. another notice was served on him under the signature of the Executive Officer, Baripada Municipality to demolish the said compound wall within 24 hours, but before completion of 24 hours, at about 10.00 a. m. on 2-3-75, the Executive Officer with his staff demolished the wall which was 60 feet in length, 4 feet in height and 15 inches thick. So the plaintiff filed the suit for recovery of Rupees 750/- -Rs. 500/- for demolition of the compound wall and Rs. 250/- for mental agony caused by the defendants. The case of the defendants is that under the Municipal Act and Rules and also according to the plan and sanction order, the plaintiff was required to leave three feet space in between his site and the site of his brother, but without leaving such space, the plaintiff went on constructing his building which was reported to the Chairman of the Municipality on 27-2-1975, for which the Chairman visited the spot and verbally instructed the plaintiff not to proceed with the construction. In spite of such instruction, the plaintiff proceeded with the construction. So a notice was served on him to stop the construction, but when he did not care and proceeded with the construction, another notice was issued to demolish the said construction. Since the plaintiff did not do so, the Executive Officer was directed to demolish the construction and, in fact, he did so. The defendants further stated that the wall said to be a compound wall was not a compound wall, but was a wall of a room. They have further claimed that the action of the Chairman and of the Executive Officer of the Municipality was legal and valid and the plaintiff was not entitled to any damages.

(3.) The learned Munsif, Baripada, who heard the suit, decreed the suit in part and directed the defendant No. 1 to pay Rs. 500/- to the plaintiff towards compensation, but disallowed the claim of the plaintiff for Rs. 350/- towards mental agony. Against the judgment and decree of the learned Munsif, the defendants filed an appeal before the Subordinate Judge, Baripada, who allowed the appeal and set aside the judgment and decree of the learned trial court. Along with this appeal, plaintiff, appellant also filed Civil Revision No. 5/78 before this Court for abundant caution, which was dismissed as withdrawn.