State of Punjab Vs. Modern
Cultivators, Ladwa [1964] INSC 158 (8 May 1964)
08/05/1964 SARKAR, A.K.
SARKAR, A.K.
HIDAYATULLAH, M.
MUDHOLKAR, J.R.
CITATION: 1965 AIR 17 1964 SCR (8) 273
ACT:
Torts-Break in canal bank-Suit for
damages--defendants' negligence--Non-production of documents by defendant-If
adverse inference can be drawn-Whether principle Res lpsa Loquitur
applies?-Northern India Canal and Drainage Act, 1873, ss. 6, 15.
HEADNOTE:
A firm called the Modern Cultivators brought
a suit against the State of Punjab to recover damages for loss of crops
suffered by flooding of its lands as a result of a break in a canal belonging
to the State. The plaintiff's case was that there was a breach in the western
bank of the canal owing to the negligence of the defendants and canal water
escaped to the fields causing them to be flooded. The case of Government was
that breach did take place but it was promptly repaired and the fields were
flooded not by the canal water but by heavy rains in the month of September.
The trial Judge passed a decree for Rs.
20,000 against Government, but it was reduced by the High Court to Rs.
14,130. The High Court held that the
inundation of the fields was by water from the canal and not from the nallahas.
Both the plaintiff and the defendant filed crossappeals by special leave of
this Court.
Held (per Sarkar, J.): (i) That the rule of
res ipsa loquitur was applicable to the facts of this case because there would
not have been a breach in the banks of the canal if those in management took
proper care and the breach itself would be prima facie proof of negligence.
Scott v. London Dock Co., 3 H & C 601
applied.
Barkway v. South Wales Transport Co. Ltd.,
[1950] 1 All.
E.R. 392, distinguished.
(ii)An inference that the defendant was
negligent in the management of the canal arises because it is clear from the
record that documents called for had not been produced deliberately.
Murugesam Pillai v. Manickavasaka Pandara,
L.R. 44 I.A. 98, referred to.
(iii)Article 2 of the Limitation Act does not
apply to the facts of the case for there is nothing in the Canal Act imposing
any duty on the defendant to take care of the banks.
Held (per Hidayatullah, J.): (i) The
principle of res ispa loquitur cannot always, be safely applied where the facts
before the court are not the whole facts. It should not be applied as legal
rule but only 51 S.C.-18.
274 as an aid to an inference when it is
reasonable to think that there are lb no further facts to consider. It is not a
principle which dispenses with proof of negligence. Rather it shifts onus from
one party to another. It is a rule of evidence and not of liability. A too
ready reliance on the maxim reinforces a fault liability and makes it into an
absolute liability. If absolute liability is to give way to fault liabilty,
some fault must be established by evidence or must be capable of being
reasonably inferred from the circumstances. It is not sufficient to say res
ipsa loquitur because the danger is that facts may not always tell the whole story
and if there is something withheld how can the thing be said to speak for
itself? The High Court erred in applying the principle of res ipsa loqutur to
the facts of this case.
In the present case there was sufficient
evidence, in the absence of reasonable explanation (which there was not), to
establish negligence.
Donoghue v. Stevenson, 1932 1 A.C. 562,
explained.
Sedleigh-Denfield v. V. O'Callaghan and Other
s. 1940 1 A.C.
890 and Scott v. London and St. Katherine
Docks Co., 3 H. & C. 596: 159 E.R. 665, referred to.
Barkway v. South Wales Transport Co. Ltd.
[1950] 1 All.
E.R. 392 H.L. 394, relied on.
(ii)The rule in Raylands v. Fletcher is
hardly applicable here. Canal Systems are essential to the life of the Nation
and land that is used as canals, is subjected to an ordinary use and not to
unnatural use on which the rule in Raylands v. Fletcher rests. There is
difficulty in distinguishing non-natural and natural user.
Rylands v. Fletcher, L.R. 3 H.L. 300,
inapplicable.
Richards v. Lothian, 1913 1 A.C. 263, relied
on.
(iii)Article 2 of the Limitation Act cannot
apply to cases where the act or omission complained of is not alleged to be in
pursuance of statutory authority. Act or omission which can claim statutory
protection or is alleged to be in pursuance of a statutory command may attract
Art. 2 of the Limitation Act but the Act or omission must be one which can be
said to be in pursuance of an enactment. In the present case the breach in the
bank was not that kind of act or omission. It could not claim to be in
pursuance of the Canal Act. Nor could the opening or closing of the channel for
operations, though in pursuance of the Canal Act, be the relevant act or
omission because they were more than a year before the cause of action and to
apply a limitation of 90 days to that cause of action is not only impossible
but also absurd. Article 2, therefore does not apply. Article 3 of the
Limitation Act applies to the present case.
Punjab Cotton Press Co. Ltd. v. Secretary of
State, I.L.R.
10 Lah. 161 P.C., inapplicable 275 Mohamad
Sadaat Ali Khan v. Administrator Corporation of City of Lahore, I.L.R. [1945]
Lah. 523 F.B. and Secretary of State v. Lodna Colliery Co. Ltd., I.L.R. 15 Pat.
510, referred to.
Commissioners for the Port of Calcutta v.
Corporation of Calcutta, 64 I.A. 363, distinguished.
Held (per Mudholkar. J.): (i) The rule in
Rylands v.
Fletcher applies only if the defendant brings
or accumulates on his own land something that is likely to escape and do
mischief, irrespective of the question whether that was done by the defendant
wilfully or negligently. This rule has been adopted in this country in several
cases and so can be regarded as a part of the common law of the land. In the
country of its origin, this rule has been subjected to certain exceptions. One
of the exceptions is this: that where the owner or occupier of land accumulates
a deleterious substance thereon by virtue of an obligation imposed upon him by
a statute or in exercise of statutory authority he will not be rendered liable
for damages resulting there from to other persons unless it is established that
he was guilty of negligence in allowing the deleterious substance to escape.
The present case falls within this exception.
The State of Punjab would not be liable for
damages by the operation of the rule in Rylands v. Fletcher but is liable by
reason of its negligence. The breach was caused by the negligence on the part
of the officers of the State in inspecting the banks of the canal and in
particular that portion of it where the breach had been caused.
Rylands v. Fletcher, (1868) L.R. 3 H.L. 330
explained.
Gooroo Churn V. Ram Dutt, (1865) 2 W.R. 43,
Dhanusao V. Sitabai, (1948) Nag. 698, and Dunne v. North Western Gas Board,
(1964) 2 W.L.R. 164. referred to.
(ii)The rule of evidence res ipsa loquitur
cannot be applied to the facts of this case because all the facts for the
decision of the case were not placed before the court.
Immediately after the breach occurred some
reports were made by the officers of the State but they were not placed before
the Court despite its order requiring their production. In other words the
State had deliberately suppressed evidence in its possession which could have
established negligence.
In this view the rule of res ipsa loquitur is
not the applicable.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 416 and 417 of 1947.
Appeals from the judgment and decree dated
May 1, 1956, of the Punjab High Court in Regular First Appeal No. 45 of 1950.
276 A.V. Viswanatha Sastri, Gopal Singh and R.
N Sachthey, for the appellants (in C.A. No. 416/1962), and respondent (in C.A.
No. 417/62).
S.T. Desai, Hardayal Hardy and J. P. Agarwal,
for the, respondent (in C.A. No. 416 of 1962) and appellants (in C.A.
No. 417 of 1962).
May 8, 1964. The following Judgments were
delivered by the Court.
SARKAR J.I agree with the orders proposed by
my brother Hidayatullah.
These appeals arise out of a suit brought by
a firm called the Modern Cultivators against the State of Punjab to recover
damages for loss suffered by flooding of its lands as a result of a breach in a
canal belonging to the State of Punjab. Both the Courts below have held in
favour of the plaintiff but the High Court reduced the amount of the damages
awarded by the trial Court. Both parties have appealed to this Court. The
Modern Cultivators contend that the High Court is in error in reducing the
amount of the damages. The State of Punjab contends that it had no liability
forthe loss caused by the flooding. The breach and the floodingof the plaintiff's
lands are not now denied. In regard to the appeal by the Modern Cultivators I
have nothing to add to what has been said by Hidayatullah J.
For the reasons mentioned by him I agree that
the damages had been correctly assessed by the trial Court.
In its appeal the State of Punjab first
contended that the plaintiff could not succeed as it had failed to prove that
the breach had been caused by the defendant's negligence. I am unable to accept
this contention. The trial Court inferred negligence against the defendant as
it had failed to produce the relevant documents and with this view agree.
The defendant had produced no documents to
show how the breach was caused. It had been asked by the trial Court to do so
by an order made on May 12, 1949 but failed to produce them. The defendant bad
a large number of canal officers and according to Mr. Malhotra, the,Executive
Engineer in charge of the canal at the relevant time, 277 there was a regular
office and various reports concerning the breach had been made. None of these
was produced at the hearing. It is obvious that in an Organisation like the
canal office, reports and other documents must have been kept to show how the
breach occurred and what was done to stop it. If such documents are not
produced, an inference can be legitimately made that if produced, they would
have gone against the case of the defendant, that is, they would have proved
that the defendant had been negligent: Murugesan Pillai v. Manickavasaka
Pandara(1). It was suggested in this Court. that the documents had been
destroyed. It may be that they are now destroyed. One of the defendant's
officers called by the High Court in view of the unsatisfactory nature of the
documentary evidence said that documents Were destroyed after three lo seven years.
The breach occurred in August 1947, the suit was filed in October 1948 and the
trial was held about August 1949. So it would appear that at the time ,of the
trial the relevant documents had not been destroyed. Nor was it said that they
had then been destroyed. Furthermore, in view of the pendency of the suit the
documents must have be-en preserved. It is, clear that they had not been
produced deliberately. An inference that the defendant was negligent in the
management of the canal arises from the nonproduction of the documents. There
is therefore, evidence that the defendant was negligent.
Furthermore it seems to me that the rule of
res ipsa loquitur applies to this case. The canal was admittedly in the
management of the defendant and canal banks are not breached if those in
management take proper care. In such, cases the rule would apply and the breach
itself would be prima facie proof of negligence: see Scott v. London Dock
Co.(1). No doubt the defendant can show that the breach was due to act of God
or to act of a third party or any ,other thing which would show that it had not
been negligent, but it did not do so. It may be that the rule of res ipsa
loquitur may not apply where it is known how the thing which caused the damage
happened as was held in Bankway v. South Wales Transport Co., Ltd.(1). But that
is not the (1) L.R. 44 I.A. 98.
(2) 3 H. & C. 601 (3) [1950] 1 All E.R.
392 278 case here. No reason has been advanced why the rule should not apply.
Therefore I think that the first contention of the defendant that there is no
evidence of negligence must be rejected.
I do not think it necessary in the present
case to consider whether the rule in Rylands v. Fletcher(1) applies to make the
defendant liable for I have already held that it is liable as negligence has
been proved.
The second point raised by the defendant was
one of limitation. It was contended on behalf of the defendant that the case
was governed by art. 2 of the first schedule of the Limitation Act. It is not
in dispute that if that article applies, the suit would be out of time. That
article relates to a suit "for compensation for doing or omitting to do an
act alleged to be in pursuance of any enactment". It was said that the Northern
India Canal and Drainage Act, 1873 imposed a duty on the defendant to take care
of the canal banks and its failure to do so was the omission to do an act in
pursuance of an enactment within the article. I have very grave doubt if this
interpretation of art. 2 is correct. There is authority against it: see
Mohammad Saadat Ali Khan v. The Administrator, Corporation of City of
Lahore(1). But apart from that I find nothing in the Canal Act imposing any
duty on the defendant to take care of the banks. We were referred to ss. 6 and
51 of that Act. Both are enabling sections giving power to the State Government
to do certain acts. Under s. 6 it has power to enter on any land and remove any
obstruction and close any channels or do any other thing necessary for the
application or use of the water to be taken into the canal. This obviously does
not impose any duty in connection with the canal bank. Section 15. gives the power
to the canal authorities in case of accident happening or being apprehended to
a canal to enter upon lands of others and to do all things necessary to repair
the accident or prevent it. This section again has nothing to do with taking
care of the canal banks. Therefore, even assuming that the defendant's
interpretation of art. 2 is correct, this is not a case to which it may apply.
I wish however to make it clear that nothing that I have said (1) [1868] L.R. 3
H.L. 330 (2) [1945] L.R 26 Lah. 523 279 here is to be read as in any way
approving the defendant's interpretation of art. 2. Therefore the
defendant'& contention that the suit was barred by limitation also fails.
The defendant's appeal must, therefore, be
dismissed and the plaintiff's appeal allowed. Costs will naturally follow the
result.
HIDAYATULLAH, J. On August 15, 1947 the
Western Jamna Canal at R.D. No. 138000 near Sangipur and Jandhrea villages
burst its western bank. The canal water inundated the neighbouring fields where
crops of sugar cane, maize, urud etc. grown by the plaintiff firm were damaged.
The plaintiff brought this action alleging that the breach in the bank was
caused by negligence on the part of the canal authorities who were guilty of
further negligence in not closing the breach without delay. The plaintiff
estimated its loss at Rs. 60,000 in respect of the standing crop and a further
loss of Rs. 10,000 in respect of the deterioration of the land for future
cultivation. It however, limited its claim to Rs. 20,000.
The State Government denied negligence on the
part of the canal authorities. Government admitted that a breach did occur in
an old inlet channel of Chhalaundi Silting Tank on August 15, 1947 and some
canal water escaped through the breach which, it was said, flowed back to the
canal through the outlet of the silting tank lower down the canal.
Government claimed that the site was
immediately inspected by the Executive Engineer and no damage to the crops was
discovered and that the breach was promptly closed and the bank was
strengthened. Government stated that there were heavy rains on the 8th
September and again from 23rd to 28th September, 1947 causing floods in the
nulla has but as the canal was running full supply, water brought by the
nullahas to the silting tank could not get to the canal and overflowed to the
adjoining areas.
Shortly stated, plaintiff's case was that
there was a breach in the western bank of the canal owing to the negligence of
the defendants and canal water escaped to the fields causing them to be
flooded; while the case of the Government was that a breach did take place but
it was promptly repaired 280 and the fields were flooded not by the canal water
but by heavy rains in the month of September. The trial judge passed a decree
for Rs. 20,000 against Government, but it was reduced by the High Court to Rs.
14,130. These two cross-appeals have thus been filed by the rival parties by
special leave of this Court.
The High Court and the court below have
a,-reed in holding that there was a break in the canal. The size of the breach
has been variously described, but it was certainly not less than 30 feet wide
and the depth of the water at the breach was about 15 feet. It is admitted that
the canal was then running full supply 2, 5,000 Cusecs. As the width of the
canal was 400 feet, the out-flow would be at the rate of 5,00OX30/400 Cusecs if
the breach was 30 feet wide. This would mean extensive flooding of the low
lying areas unless the breach was immediately closed. Some of the witnesses say
that it was as much as 70 to 80 feet wide and that would make the out-flow even
greater. The High Court held that the floods were not caused by the rains.
Prior to the break in the canal there was only I inch of rainfall. The heavy
rains took place much later. The inundation of the fields was thus by water
from the canal and not from the nullahas.
This much has already been held. It ,is
admitted that the breach occurred at a place where there was an old nullah
through which silting operations were carried out in the past and this exit was
closed in the previous years and the breach was at that very site. The breach
was noticed on the morning of the 16th. No attempt was made by either side to
establish the exact duration of time before the breach was repaired. Mr.
Malhotra (Executive Engineer) stated that it was repaired by the 18th but was
re-opened (one does not know why) on the 20th and again closed on the 21st.
Evidence on behalf of the plaintiff
established that water continued pouring out as late as the month of October.
This was apparently an exaggeration. There is no evidence to show that the flow
of water in the canal was reduced from the head works the breach occurred. It
apparently continued on full The High Court attempted to secure the documents
from the canal Office which had not been produced earlier.
The 281 Executive Engineer, then in charge
was summoned to bring all the papers in his office and he produced the
telegrams received by and copies of telegrams issued from the head office
between August 16, 1947 and September 5, 1947. From these documents it is now
established that the breach was not repaired at least upto August 27, 1947 and
the evidence that it was repaired on the 18th was therefore not accurate.
It has also been established that the case of
the plaintiff that water continued to flow right upto October was also false.
It may thus be assumed that repairs were completed by the 27th August but not
earlier.
It is admitted that the area into which water
flowed was used as a silting tank. The silting operations comprise the opening
of the bank of the canal at a selected place to let out turbid water which
passing through the silting tank drops the sediment and flows back to the canal
at a lower reach free of the silt, and closing of the bank. It is now admitted
that at the exact spot where the breach took place there was previously an
opening for silting purposes which was recently closed. There is no evidence to
show negligence on the part of Government. Curiously enough Government said that
it had not preserved the papers connected with this mishap. We can hardly
believe this.
Government led evidence to establish that the
banks of the canal were periodically inspected and claimed that the breach was
an act of God without any negligence on the part of the canal authorities. It
is an admitted fact that crops of the plaintiff were destroyed if not wholly at
least substantially. The only question, therefore, is whether Government can be
held responsible for the damage caused to the plaintiff and, if so what should
be the compensation.
Two points were urged on behalf of
Government: the first was that the suit filled by the plaintiff was out of time
inasmuch as Art. 2 of the Indian Limitation Act which prescribes a period of
three months was applicable and not Art.
36 which prescribes a period of two years.
This wag held against Government by the High Court and the court below.
The second point urged on behalf of
Government was that there was no proof of negligence whatever by the plaintiff and
the plaintiff must therefore fail. The High 282 Court in dealing with this
point held that, in the circumstances res ipsa loquitur and that it was not
necessary for the plaintiff to prove negligence and it must be so presumed. The
High Court differed from the court below in assessing damages.
In the appeal of the Government both these
points are urged.
On behalf of the plaintiff, in the companion
appeal, it is contended that the High Court omitted to give proper compensation
for the loss of maize and urud crop. It is submitted that the High Court
adopted the formula that in respect of sugar cane crop which needs plenty of
water the damages should be assessed at 1/3 of the value of the crop and in
respect of maize and urud crops at 1/2 the value.
The plaintiff contends in its appeal (that
the whole of the maize and urud crop was completely destroyed and the decree of
the court of first instance allowing 3/4 of the value of the crop as
compensation was unassailable. It is pointed out that evidence disclosed that
water in the fields was 4 to 5 feet deep and the maize and urud plants were
less than 2 feet high. In other words, the plants remained submerged during all
the time the fields were mandated. It is obvious that the crop must have been
entirely destroyed and the allowance of 1/4 was because the destroyed crop had
some value as chari. On the facts, as found, there was hardly any justification
for reducing the amount of the decree for damages passed by the court of first
instance. The High Court itself, in more than one place, stated in its judgment
that the maize and urud crops were completely destroyed. It is, therefore,
clear that unless Government succeeds in its appeal the. decree of the court of
first instance must be restored in this case. Mr. Vishwanatha Sastri on behalf
of Government asked for a remit, but in view of the slight difference and the
fact that the High Court itself remarked that the maize and urud crops were
completely destroyed there would not be any necessity to order a remit in case
the appeal of the Government fails. I shall now turn to that appeal.
The facts as found in this case are that in
1946, the land which got flooded, was used for silting operations. An opening
in the western bank was made in that year and the 283 bank was restored in June
1946. Till the month of August in the following year there was no complaint.
Evidence discloses that the banks were regularly inspected. A special Engineer
and a Special Sub-Divisional Officer were in charge and there were watchmen also.
There is no evidence of wilful conduct. The plaintiff has not led evidence to
establish any particular act of negligence.
There is no evidence that the breach was
caused by the act of a third party or even of God. Mi. Sastri, therefore,
contends that as there was no foreseeable danger against which precautions
could be taken beyond making periodical inspections, and this was done, there
can be no liability.
He submits that in this view of the matter
the plaintiff must fail in the absence of proof of negligence.
The High Court applied to the case the rule
in Donoghue v. Stavenson(1) reinforcing it with what is often described as the
doctrine of res ipsa loquitur. This case is first of its kind in India and
needs to be carefully considered.
Before us reliance was placed upon the rule
in Rylands v. Fletcher(1). That rule, shortly stated, is: that any occupier of
land who brings or keeps upon it anything likely to do damage if it escapes is
bound at his peril to prevent its escape, and is liable for all the direct
consequences of its escape, even if he has been guilty of no negligence: Per
Salmond, Law of Torts 13th Edu. p. 574. The rule in Rylands v. Fletcher was
derivatively created from the rule of strict liability applicable to the acts
of animals but, in my opinion, it is hardly applicable here. Canal systems are
essential to the life of the nation and land that is used as canals, is
subjected to an ordinary use and not to an unnatural use on which the rule in
Rylands v. Fletcher rests. The words of Lord Cairns "non,natural use"
of land and of Blackburn, J. "special use bringing with it increased
danger to others" are sometimes missed. There is difficulty in
distinguishing non-natural and natural user but perhaps the best test to apply
is slated by Lord Moulton in Richards v. Lothian(1):
(1) [1932] A.C. 562 (2) L.R 3 H.L. 300 (3)
[1913] A C. 263, 280 284 "Some special use bringing with it increased
danger to others, and must not merely be the ordinary use of the land or such a
use as is proper for the general benefit of the community." They formed
the basis of observation of Viscount Maugham in Sedleigh-Denfield v. V.
O'Callaghan and Ors.(1). As was pointed out by Holmes in his Common Law (1963)
at p. 93:
"It may even be very much for the public
good that dangerous accumulations should be made. . . ." Cases of breaks
in canals resulting in danger to neighbouring lands are rare but some are to be
found in law reports from the United States of America. I need not refer to
them because the following passage from American Jurisprudence Vol. 9 page 340
para 38 gives an adequate summary of the principles on which they had been
dealt with:
"A canal company is also liable for
flooding private property where it has not acquired the legal right to do so;
it is answerable in damages for all loss occasioned by a neglect on its part to
use reasonable care and precaution to prevent the waters of its canal from
escaping therefrom to the injury and detriment of others. A canal proprietor is
not, however, liable for damages to adjoining lands resulting from a mere
accidental break in his canal which human foresight and vigilance could not
have anticipated, and against which proper prudence and judgment could not be
expected to provide. Although it has been held that a canal company is not
liable for damages occasioned by the percolation of waters through the banks of
its canal, in the absence of proof of negligence on its part in want of skill
or care in the construction and maintenance of its canal, such holdings are maintenance
of its canal.
such holdings (1) [1940] A.C. 880 at 889 285
are opposed to the weight of reason and authority. " Perhaps the liability
is viewed strictly as an inducement to care Safety is best secured when. it is
made the responsibility of the person who must not only take precautions to
avoid accident but who alone decides what those precautions should be. In this
connection the rule that is most often quoted was stated by Erle C.J. in Scott
v. London and St.
Katherine Docks Co. (1) thus:
"There must be reasonable evidence of
negligence.
But where the thing is shown to be under the
management of the defendant or his servants, and the accident is such as in the
ordinary course of things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of explanation by
the defendants that the accident arose from want of care." In subsequent
cases it has been customary to regard this as a statement of the principle of
res loquitur. But the principle, if it be one, cannot always be safely applied
where the facts before the court are not the whole facts.
In a vast canal system constructed with great
care and attention to detail it may be difficult to prove negligence but it may
sometimes be equally difficult to explain how the defect arose. The principle
of res ipsa loquitur had its origin in the failing of a barrel of flour from a
first floor window on a passerby but it has been extended to situations quite
different. It is not very much in favour and if applied it must be correctly
understood. It is not a principle which dispenses with proof of negligence.
Rather it shifts onus from one party to another. It is rule of evidence and not
of liability. A too ready reliance on the maxim reinforces a fault liability
and makes it into an absolute liability. If absolute liability is to give way
to fault liability, some fault must be established by evidence or must be
capable of being reasonably inferred from the circumstances. It is not(1) 3 H
& C. 596 : 159 E R. 663 286 sufficient to say res ipsa loquitur because the
danger is that facts may not always tell the whole story and if there is
something withheld how can the thing be said to speak for itself ? The
principle which I consider reasonable to apply where fault has to be inferred
from circumstances was best stated by Lord Porter and I respectfully adopt it.
Speaking of res ipsa loquitur it was observed by Lord Porter in Barkway v.
South Wales Transport Co. Ltd.(1) :
"The doctrine is independent on the
absence of explanation, and, although it is the duty of the defendants, if they
desire to protect themselves, to give an adequate explanation of the cause of
the accident, yet, if the facts are sufficiently known, the question ceases to
be one where the facts speak for themselves, and the solution is to be found by
determining whether, on the facts as established, negligence is to be inferred
or not." I have made these observations so that the principle may not be
applied too liberally. It must also be remembered that what is said in relation
to it in one case cannot indiscriminately be applied to another case. It should
not be applied as legal rule but only as an aid to an inference when it is
reasonable to think that there are no further facts to consider.
I shall now consider the facts as they stand
in this case to discover if the canal authorities can be said to be at fault.
The facts show that the water escaped into the Chillaundi Silting Tank through
the nallah which had previously been used for silting operations and had been
sealed in the previous year. If the plug were sound it would have withstood the
pressure of water as it did after it was repaired on the 27th August even
though 28" of rainfall fell within 20 days. There is nothing to show that
the outflow was due to rainfall or a storm so exceptional that it could be
regarded as an act of Good. Nor was it due to any disturbance of the earth's
crust or interference by a stranger. There is thus ,sufficient evidence, in the
absence of reasonable explanation (1) [1950] 1 All. E R. 392 at 394,395 287
(which there is not), to establish negligence. Further, there was inordinate
delay and negligence in sealing the breach. Even the flow in the canal was not
reduced for repairs to be carried out quickly. In such circumstances, the facts
prove negligence and government was rightly held responsible. Whether the
defect was patent or latent is not much to the purpose. It was not an
inevitable accident, and the Government must be held liable.
It remains to consider the question of
limitation. The high Court and the court below have applied Art. 36 of the
indian Limitation Act. Government claims that the proper Article to apply was
Art. 2. These Articles may be set down here:
Description of Period of limitation Time from
which suit. period begins to run.
2. For compensation Ninety days When The act
or for doing or for omission takes omitting to do an place.
act alleged to be in pursuance of any
enactment in force for the time in India
36. For compensation Two years (now When the
malfeasance for any mal-feasone year) misfeasance or nonance, misfeasance
feasance takes place.
or nonfeasance independent of contract and
not herein specially provided for.
It is not denied that if Art. 2 was not
applicable, the proper Article would be Art. 36 and the suit would also be
within time. In contending that the second article applies reliance is placed
on a decision of the Privy Council in Punjab Cotton Press Co. Ltd. v. Secretary
of State(1). But that case is clearly inapplicable. There the canal authorities
cut the bank of a canal at a selected point to let the water away with a view
to protecting a railway track passing close by ,on a high embankment and in
this way flooded and injured the plaintiff's mills. The Judicial Committee held
that if the act was done, as was said, under s. 15 of the Northern India Canal
and Drainage Act 1873 (8 of 1873), Art. 2 was applicable and not Art. 36. The
case was thus remanded (1) I.L.R. to Lah. 171 P.C.
288 to find the fact necessary for the
application of the. right article. In relying upon this case, Mr. Viswanatha
Sastri claims that s. 15 of the Canal Act covers the present facts.
Mr. Gopal Singh, who followed, also refers to
s. 6. These, sections read:
"6. Powers of Canal Officer.
At any time after the day so named, any Canal
Officer, acting under the orders of the State Government in this behalf, may
enter on any land and remove any obstructions, and MaY close any channels, and
do any other thing necessary for such application or use of thE said
water." "15. Power to enter for repairs and to prevent accidents.
In case of any accident happening or being
apprehended to a canal, any Divisional Canal.
Officer or any person acting under his
general or special orders in this behalf may enter, upon any lands adjacent to
such canal, and may execute all works which may be necessary for the purpose of
repairing or preventing such accidents. Compensation for damage to land. In
every such case, such Canal Officer or person shall tender compensation to the
proprietors or occupiers of the said lands for all damage done to the same. If
such tender is not accepted, the Canal Officer shall refer the matter to the
Collector, who shall proceed to award compensation for the damage as though the
State Government had directed the occupation of the lands under section 43 of
the Land Acquisition Act, 1870." In regard to section 6 it is sufficient
to say that it has no application here. It refers to the day named in s. 5 and
289 that section provides for a notification to be issued declaring that water
would be applied after a particular date for purpose of any existing or
projected canal or drainage work or for purposes of Government. On such
notification issuing any Canal Officer, acting under the orders of the State
Government, may enter on any land and remove obstructions or close any channels
so that water may be applied to those purposes. This is an entirely different
matter and it is no wonder that Mr. Viswanatha Sastri did not rely upon s. 6.
Section 15 no doubt confers a power to enter
lands and property of others to affect repairs or to prevent accidents. One can
hardly dispute that it is the normal duty of canal authorities to make repairs
and execute works to prevent accidents. But Art. 2 cannot apply to omissions in
following the statutory duties because it cannot be suggested that they are 'in
pursuance of any enactment'.
Cases of -malfeasance, misfeasance or
nonfeasance may or may not have statutory protection. Act or omission which can
claim statutory protection or is alleged to be in pursuance of a statutory
command may attract Art. 2 but the act or (mission must be one which can be
said to be in pursuance of an enactment. Here the suit was for compensation for
damage consequent on a break in the canal on August 15, 1947. The only act or
omission could be the opening and closing of the channel for silting
operations. That was before June 1946.
The third column of Art. 2 provides the start
of the limitation of 90 days" when the act or omission takes place."
The period of limitation in this case would be over even before the injury if
that were the starting point.
This subject was elaborately discussed in
Mohamad Sadaat Ali Khan v. Administrator Corporation of City of Lahore(1) where
all rulings on the subject were noticed, Mahajan J. (as he then was) pointed
out that "the act or omission must be those which are honestly believed to
be justified by a statute". The same opinion was expressed (1) I.L.R.
[1945] Lah. 523 F.B.
51 S.C.-19.
290 by Courtney Terrell C.J., in Secretary of
State v. Lodna Colliery Co. Ltd. (1) in these words :"The object of the
article is the protection of public officials, who, while bona fide purporting
to act in the exercise of a statutory power, have exceeded that power and have
committed a tortious act; it resembles in this respect the English Public
Authorities Protection Act. If the act complained of is within the terms of the
statute, no protection is needed, for the plaintiff has suffered no legal wrong.
The protection is needed when an actionable wrong has been committed and to
secure the protection there must be in the first place a bona fide belief by
the official that the act compalined of was justified by the statute; secondly,
the act must have been performed under colour of a statutory duty, and thirdly,
the act must be in itself ,a tort in order to give rise to the cause of action.
It is against such actions for tort that the
statute gives protection." These cases have rightly decided that Art.2 cannot
apply to cases where the act or omission compalained of is not complained of is
not alleged to be in pursuance of statutory authority. It is true that in
Commissioners for the Port of Calcutta v. Corporation of Calcutta(1) the
Judicial Committee, while dealing with s. 142 of the Calcutta Port Act (3 of
1890) which reads:
No suit shall be brought against any person
for any done or purporting or professing to be done in pursuance of this Act,
after the expiration of three months from the day on which the cause of action
in such suit shall have arisen", pointed to the presence of the words
"purporting or professing to be done in pursuance of this Act" and
observed that (1) I.L.R. 1 5 Pat. 510 (2) 64 I.A. 36 291 they regarded the
words as of 'pivotal importance' and that their presence postulated "that
work which is not done in pursuance of the statute may nevertheless be accorded
its protection if the work professes or purports to be done in pursuance of the
statute". But they were giving protection to an act which could
legitimately claim to be in pursuance of the Port Amt. Here the break in the
bank was not that kind of act or omission. It could not claim to be in pursuance
of the Canal Act. Nor could the opening or closing of the channel for silting operations,
though in pursuance of the Canal Act, be the relevant act or omission because
they were more than a year before the cause of action and to apply a limitation
of 90 days to that cause of action is not only impossible but also absurd. Art.
2, therefore, does not apply here. It was not contended before us that the suit
was otherwise time-barred and we accordingly confirm the finding that the suit
was within time.
The result thus is that the appeal filed by
the State Government fails and I would dismiss it with costs and allow the
appeal filed by the plaintiff with costs. I would modify the judgment and
decree of the High Court by altering the amount of Rs. 14,130 to Rs. 20,000 as
ordered by the trial judge.
MUDHOLKAR, J.I agree with my brethren Sarkar
and Hidayatullah that the appeal preferred by the defendant, the Stale of
Punjab, be dismissed and the appeal preferred by the plaintiff, the Modern
Cultivators, be allowed and the decree for damages be restored to the sum
awarded by the trial court. I also agree with the order for costs as proposed.
I wish to add nothing with regard to the
plaintiff's appeal to what has been said by my brother Hidayatullah nor to what
he or my brother Sarkar has said regarding the question of limitation raised on
behalf of the defendant. They have both held that art. 2 of the Limitation Act
is not attracted to a case like the present where the damages sustained by the
plaintiff are not the result of anything done by the State 292 in pursuance of
a statutory power exercised by it or by reason of an act which could properly
be said to have been performed in the purported exercise of a statutory power.
If art. 2 is out of the way, it is not
disputed on behalf of the State that the suit will be within time.
My learned brother Hidayatullah has referred
to the rule of common law as to strict liability with respect to damages
resulting from the escape of deleterious substances or cattle from the land
which have been accumulated or brought on the land by its owner for his use and
which were not natural there. The rule was stated thus in Rylands v. Fletcher(1)
by Blackburn, J.
"We think that the true rule of law is
that the person who for his own purposes brings on his lands and collects and
keeps there anything likely to do mischief if it escapes, must keep it in at
his peril, and if he does not do so is prima facie answerable for all the
damage which is the natural consequence of its escape." It was approved by
the House of Lords, but Lord Cairns laid down a new principle distinguishing
the natural from the non-natural user of land and holding that in the latter
case only was the liability absolute. (see Salmond on Torts, 13th ed. p. 579).
This rule has been adopted in this country in several cases (see Gooroo Churn
v. Ram Dutt(2); Dhanusao v.
Sitabai(3) and several other cases) and can,
therefore, be regarded as a part of the common law of the land. In the country
of its origin, this rule has been subjected to certain exceptions. The present
case falls in one of the exceptions recognised in some, though not, all cases.
It has been held in some cases that where the owner or occupier of land
accumulate,,, a deleterious substance thereon by virtue of an obligation
imposed upon him by a statute or in exercise of statutory authority he will not
be rendered liable for damages resulting therefrom to other persons unless it
is established that he was guilty (1) 18681 L.R. 3 H.L. 330 (2) [1865] 2 W.R.
43 293 of negligence in allowing the deleterious substance to escape. In a
recent decision Dunne v. Horth Western Gas Board(1) the Court of Appeal has
recognised this exception and the controversy may be said to have been set at
rest subject, of course, to what the House of Lords may have to say hereafter.
Indeed, the liability to pay damages to another resulting from an act of a
person is laid upon him by the law of torts upon the basis that his act was
wrongful and that he was a wrong-doer. Where, therefore, the act consists of
something which the law enjoins upon that person to do or which the law permits
him to do, it cannot possibly be said that his mere act in doing that something
was in itself wrongful and that he was a wrong-doer. He will, however, be
liable if he performed the act in a negligent manner or if the escape of the
deleterious substance subsequent to accumulation of that substance in exercise
of a statutory authority was the result of his negligence.
There is nothing here to show that in
constructing the canal under the powers conferred by Northern India Canal and Drainage
Act, 1873 the State did anything other than what the law permitted. Therefore,
by constructing the canals and allowing water to flow along it the State merely
exercised its statutory authority. Further, there is nothing to show that there
was any want of care in constructing the canal and so no question of negligence
will arise in constructing the canal and allowing water to flow along the canal
in question. Here, what has happened is that at the point where prior to 1946
the water from the canal was allowed to flow into the silting tank through a
nallah, there was an opening which was plugged in that year.
Here, it is established that over a year
after that opening was plugged by the State a breach of about 30 or 40 feet was
caused. This occurred on August 15, 1947. It has not been shown that the breach
could have been caused by an act of God or an act of third party. The
contention of the State that it was caused by heavy rains in the catchment area
has not been found to be true If, therefore, there is material from which it
could be inferred that the breach was caused by reason of negligence on the
part of the State in inspecting the banks of the canal and in (1) [1964] 2 W
L.R. 164 294 particular that portion of it where the breach had been caused the
State would be liable in damages. This would be, so not by the operation of the
rule in Rylands v.
Fletcher(1) but by reason of negligence.
The sole ground upon which the liability of
the State could be established in this case would be negligence of the State in
properly maintaining the banks of the canal. For this purpose it would be
relevant to consider whether there were periodical inspections, whether any
breaches or the development of cracks were noticed along the banks of the canal
and in particular at the place where the breach ultimately occurred or whether
any erosion of the banks particularly at the place where one of the banks had
been plugged had been noticed and no action or timely action had been taken
thereon. There is evidence to show that the canals were being regularly
inspected. That, however, is not the end of the matter. Immediately after the
breach occurred some reports were made and as pointed out by my brethren in
their judgments they were not placed before the court despite its order
requiring their production. When the matter went up before the High Court it
was said that the records had been destroyed in the year 1958 or so and
therefore they could not be furnished. This action on the part of the State is
manifestly unreasonable and the legitimate inference that could be drawn from
it is that if the documents had been produced they would have gone against the
State and would establish its negligence. In it could legitimately be presumed
that the State was negligent inasmuch as it had deliberately suppressed
evidence in its possession which could have established negligence. In the circumstances
of this case I do not think it appropriate to refer to the rule of evidence res
ipsa loquitur.
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