Municipality of Bhiwandi and Nizampur
Vs. M/S. Kailash Sizing Works  INSC 181 (20 September 1974)
RAY, A.N. (CJ) RAY, A.N. (CJ) MATHEW, KUTTYIL
KURIEN KRISHNAIYER, V.R.
CITATION: 1975 AIR 529 1975 SCR (2) 123 1974
SCC (2) 596
Bombay District Municipal Act-S. 167-Scope of
General Clauses Act--"Done in good faith" meaning of.
The respondent had a structure beside a
nallah which carries dirty water and rain water to the creek. The Government
demolished a portion of the dam upstream as a result of which the water stored
in the lake was bound to pass through the nallah to the creek. The appellant
had left unfinished the work of laying cement slab across the nallah. In the
rainy season the nallah overflowed and flooded the respondent's property
causing damage to it. The respondent alleged that on account of the negligence
of the appellant the water course was completely blocked in the monsoon season
and resulted in the flooding of his premises.
The High Court decreed the respondent's suit
Section 167 of the Bombay District Municipal
Act confers protection on the Municipality in respect of anything done in good
faith or intended to be done. The General Clauses Act and the Bombay General
Clauses Act, 1904 define "done in good faith" to mean done honestly,
whether done negligently or not.
On the question whether the Municipality
could be said to have acted honestly). Dismissing the appeal,
HELD : An authority is not acting honestly
where it had a suspicion that there was something wrong and did not make
further enquiries. Being aware of possible harm to others and acting in spite
thereof, is acting with reckless disregard of consequences. It is worse than
negligence, for negligent action is that the consequences of which, the law presumes
to be present in the mind of the negligent person.
whether actually it was there or not. L125 G]
The Central as well as Bombay General Clauses Act lay down that negligence does
not necessarily mean mala fides.
Something more than negligence is necessary.
In the instant case the appellant was aware of the possible harm and yet cared
to do nothing about it. Its action was, therefore reckless and showed its mala
fides in the eye of law.
Section 167 of the Act did not protect it.
[126 B] Jones v. Gordon, 2 A.C. 616, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 2154 of 1968.
Appeal from the judgment and decree dated
March 18, 1968 of the Bombay High Court in Appeal No. 102 of 1966.
Naunit Lal, for the appellant.
V. M. Tarkunde and B. R. Agarwala, for the
The Judgment of the Court was delivered by
RAY, C.J.-This appeal is by certificate from the judgment dated 18 March, 1968
of the High Court of Bombay.
124 The respondent filed the suit against the
appellant Municipality for the recovery of Rs. 1,00,012/- as damages suffered
to the respondent's property on account of flood caused by acts of gross
negligence on the part of the appellant. The High Court passed a decree in
favour of the respondent for Rs. 54,560/- with interest at 6% per annum.
The respondent has a structure abutting on
the Yacoob Road.
The width of Yacoob Road is about 12 feet. On
the other side of the road is an open nallah running parallel to the road. The
nallah is about 45 feet in width, The nallah provides for passage of dirty
water, rain water to the creek during the months of November to May.
The Government of Maharashtra demolished a
portion of Varala Dam in the month of May, 1963. In consequence the "rater
stored in the lake was bound to pass through the nallah to the creek. The
appellant commenced the work of laying cement slab across the nallah in about
the second week of June, 1963. The centering work to support and settle the
slab continued to remain in its position in the nallah till about the first
week of July, 1963.
The allegations against the appellant were
these First, the appellant prepared a plan for narrowing the nallah in front of
the respondent's shop without making any provision for the passage of
additional rain water from the Varala lake catchment area.
Second, the existence, of the centring work
and the cement slab across the nallah constituted a grave obstruction against
the passage of rain water through the nallah.
Third, the appellant neglected and failed to
see that the passage of the nallah was kept free and unobstructed by work of
construction and debris for providing a safe passage of the rain water which
was likely to pass at the commencement of the monsoon season.
Fourth, in the normal course of the monsoon
season, there was heavy rain at Bhiwandi on the 5th, 6th and the 7th days of
July, 1963. Because of the existence of centring work in the nallah, the slab,
wild shrubs and debris, the water course was completely blocked and the rain
water which collected in the catchment area beyond the dam and in the Bbiwandi
and Nizampur accumulated at the mouth of the slab work to dangerous heights.
This resulted in the whole of The area adjoining and surrounding the nallah
The High Court found these facts :
The appellant had knowledge in the month of
April, 1963 of the demolition of the Varala Dam above a height of 6 feet above
ground level. The appellant completed the laying of the slab between Teen Batti
bridge and Habsanali bridge after April, 1963 with the knowledge of the
demolition of the Varala Dam. The appellant narrowed 125 the water-way near
Teen Batti bridge to an extent that it was insufficient for discharge of water
from the increased catchment area. because of the demolition. The appellant
with full knowledge of the consequences narrowed the water passage, put a slab
on it and did not remove the centring at Lendi bridge. The appellant allowed
accumulation of garbage and debris so as to obstruct the passage of' water.
The further findings are these.
The nallah runs from south to north. The
water carried by it flows on to the creek at the northern end of the nallah.
There are five bridges over the nallah. The
portion of the nallah which lies between Habsanali bridge and Lendi bridge was
covered with concrete slab in 1963. Because of heavy rain on the 4th, 5th and
6th days of July, 1963 was accumulated at the southern end of Habsanali bridge
and entered the surrounding area. Water was two feet deep in the factory of the
respondent. This state of affairs continued for three days. The narrowing of
the water-way and putting a slab on it at Habsanali bridge was ill-timed.
This should have been commenced after the
Varala Dam was reconstructed. If the appellant wanted to proceed with this work
before the reconstruction of the Dam sufficient water- way should have been
provided for passage of water from a catchment area of 0.9 sq. miles providing
for a rain fall of 3 inch per hour. The centring work should have been removed
before the monsoon. In any case no trees, bushes debris or garbage should have
been allowed to be collected at the centring of the slab so as to obstruct the
free passage of water. The retention of the centring, and the negligence in not
clearing the passage of debris was the principal cause of the flood.
Section 167 of the Bombay District Municipal,
Act confers protection on the Municipality in respect of anything in good faith
done or intended to be done. The expression "done in good faith" has
been defined in the Bombay General Clauses Act, 1904 and in the General Clauses
Act, to mean, done honestly, whether done negligently or not. The question,
therefore, is, whether the Municipality,, in the present case, can be said to
have acted honestly.
In Jones v. Gordon(1) Lord Blackburn pointed
out the distinction between the case of a person who was honestly blundering
and' careless, and the case of a person who has acted not honestly. An
authority is not acting honestly where an authority has a suspicion, that there
is something wrong and does not make further enquiries. Being aware of possible
harm to others, and acting in spite thereof, is acting with reckless disregard
of consequences. It is worse than, negligence, for negligent action is that,
the consequences of which, the law presumes to be present in the mind of the negligent
person, whether actually it was there or not. This legal presumption is drawn
through the well known hypothetical reasonable man. Reckless disregard of
consequences and mala fides stand-equal, where the actual- state of mind of the
actor is relevant. This is 'so in the eye of law.., (1) 2 A. C. 616.
126 even if there might be variations in the
degree of moral reproach deserved by recklessness and mala fides.
The Bombay, as also, the Central, General
Clauses Acts, help only in so far as they lay down that negligence does not
necessarily mean mala fides. Something more than negligence is necessary. But
these Acts say "honestly" and so, for the interpretation of that
word, we have explained the legal meanings above.
In the facts of this case we hold that the
defendant was aware of possible harm and yet cared to do nothing about it.
The action was, therefore, reckless, and
therefore in the eye of law mala fide, and therefore unprotected by section 167
of the Act.
For these reasons the appeal fails and is dismissed.
The appellant will pay costs.