Jay Laxmi
Salt Words (P) Ltd. Vs. State of Gujarat [1994] INSC 289 (4
May 1994)
Sahai,
R.M. (J) Sahai, R.M. (J) Kuldip Singh (J)
CITATION:
1994 SCC (4) 1 JT 1994 (3) 492 1994 SCALE (2)797
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by JAY LAKSHMI SALT WORKS (P) LTD. (Sahai,
J.) R.M. SAHAI, J.- This appeal by grant of certificate under Article 133(1)(a)
of the Constitution of India by the High Court of Gujarat raises substantial
question of law about applicability of the period of limitation as provided in
Article 36 of the Limitation Act, 1908+ (referred to as 'the Act') as it stood
prior to 1963 to claim of damages founded on negligence. The High Court was of
opinion that the controversy whether Article 36 could apply to rule laid down
in Rylands v. Fletcher' raises a question of general importance which required
to be authoritatively decided by this Court.
2. The
certificate granted by the High Court under Article 133(1)(a) of the
Constitution was in following terms:
"The
main question involved is that of limitation and whether the rule in Rylands v.
Fletcher',
would result in invoking the provisions of Article 36 of the old Limitation Act
or whether Article 39 of the Act would be the appropriate Article or whether
the residuary Article 121 applies and that is a substantial question of law.
This point has not yet been decided by any decision of the Supreme Court
directly on the point and hence is a substantial question of law which is of
importance to the petitioner before us as well of general public importance and
hence the certificate is granted under Article 133(1)(a) of the
Constitution."
3.
Although the finding of fact recorded by the High Court that the State was
guilty of negligence has become final since the State did not challenge it by
way of cross appeal or cross objection yet it appears necessary to give a brief
outline of it in order to appreciate the controversy and the legal issues that
arise for consideration in this appeal.
In
1954 the State of Saurashtra, which now is part of State of Gujarat, made a
plan for reclamation of vast area of land from saltish water of sea by erecting
a 'reclamation bundh' so as to prevent the sea water flowing in several creeks
in the area on the seaside of the bundh from flowing further to the claimed
site and making the lands in that area saltish.
This bundh
was completed in the year 1955. In the very first monsoon of 1956, due to
change of natural course of different streams in the reclaimed area and its
diversion towards the appellant's factory which was existing from before led to
increased flow and discharge of water on appellant's land and factory. The
appellant even before the construction of the bundh had been writing to the
authorities concerned either to abandon the bundh or to change the location of
weirs so as not to face the appellant's factory. But this request had not been
acceded to and when there was heavy downpour and the appellant found that the
level in the river was rising he ran from one authority to the other requesting
them to lessen the level of water + Ed.: Now covered by Art. II 3 of Limitation
Act, 1963 1 LR (1868) 3 HL 330: 37 LJ Ex 161 : [1861-73] All ER Rep 1 7 and
avoid increased flow near his factory with no result.
By the
time his running could bring forth any movement the flood level rose to such an
extent in the night between 4th and 5th July, 1956 that water filtered to the premises
of the factory breaking even the protective bundh made by the appellant on the
border of its factory. After the flood receded the appellant approached the
authorities and the Government for redress and claimed damages of approximately
Rupees Four Lakhs. It was asked by the Government to get it privately assessed,
and the Chief Engineer Charotar Gram Udhar Sahkari Mandali Limited, Vallabh Vidyanagar
did submit a report on 30th
August, 1956. On 24th August, 1956 an Official Committee was appointed
and the Committee found that the appellant had suffered a loss of Rs 1,58,735.
Since
this amount was not paid the appellant filed the suit for damages against the
State. Amongst many defences raised the two main were that there was no
negligence either in the construction of the bundh or in the action of the
officers and the suit was barred by time. In' respect of the quantum determined
by the Committee it was claimed that it was not acceptable to the State
Government. Various issues were framed. The trial court dismissed the suit as
it did not find any negligence as the damage was an act of God. It further
found that the suit was barred by time. In first appeal in the High Court one
of the Judges who constituted the Bench and wrote the leading judgment held
that the construction of bundh by the State could not be termed as non-natural
user as, "the dam was erected over the land and streams of water. The
purpose was to save the lands on the reclamation site from becoming useless.
Therefore, the dam in question, was just like, which, an owner of a field would
erect, where the boundary of his land is eroded by constant flow and rush of
water." After discussing the oral and documentary evidence in detail the
learned Judge held that the act of planning and construction of the bundh was
done in a negligent manner and the damages caused to the appellant were
ascribable to the negligence of the officers concerned in planning and
constructing the bundh. The learned Judge set aside the finding of the trial
court that the damage suffered by the appellant was due to an act of God. It
was specifically held that the appellant proved the negligence on the part of
the officers of the then State Government in planning and construction of the bundh
as a result of which flood water entered the factory of the appellant on 4th
and 5th July, 1956 causing extensive damage. Yet the suit was dismissed as
according to the learned Judge the suit could have been filed within 2 years
from the date the cause of action arose under Article 36 of the Act. But since
the suit was filed after 2 years, 11 months and 15 days from the date of the
incident it was barred by time. The other Judge who constituted the Bench
agreed with learned Judge on the questions of fact but differed on
applicability of Article 36 of the Act. He held that article which was
applicable to such cases was the residuary Article 120 of the Act, therefore,
the suit could have been instituted within 6 years from 5th July, 1956 the date on which the appellant
suffered damages. In view of difference of opinion between the two learned
Judges on question of law the following order was passed :
8
"Since we differ on the questions whether Article 36 applies to the
present case or Article 120 applies and whether the rule of strict liability as
enunciated in Rylands v. Fletcher' and as modified by the Supreme Court in the
State of Punjab v. Modem CultivatorS2 is applicable to the facts of the present
case, this appeal shall have to be under clause 36 of the Letters Patent,
referred to third Judge." The third Judge framed two questions extracted
below which according to him arose on difference of opinion between the learned
Judges who constituted the Division Bench :
"(1)
Whether Article 36 of the Limitation Act, 1908, applies to the present case; or
Article 120 applies?; and
(2)
Whether the rule of strict liability as enunciated in Rylands v. Fletcher' and
as modified by the Supreme Court in State of Punjab v. Modern CultivatorS2 is
applicable to the facts of the present case?"
Both
the questions were answered as under:
"(1)
Article 36 of the Limitation Act, 1908, applies to the present case and I hold
that the suit is barred by limitation.
(2)
The rule of strict liability as enunciated in Rylands v. Fletcher' has not in
terms been modified by the Supreme Court in State of Punjab v. Modem
CultivatorS2; and in any event, the rule of strict liability as enunciated in Rylands
v. Fletcher' even as modified, if it is so held to be modified, is not
applicable to the facts of the present case."
4. Are
the answers correct? Was Article 36 as it stood in the relevant period, prior
to 1963 exhaustive of torts as held by the High Court? What was the scope of
malfeasance, misfeasance and nonfeasance? Was the rule of Rylands v.
Fletcher'
applicable? Has it been modified by our Court in State of Punjab v. Modem Cultivators2? Prior to
adverting to these issues it appears appropriate to notice in brief how the
High Court grappled with the problem. Mr Justice Sheth who agreed on facts with
Mr Justice Desai, was of the opinion that, liability could arise out of
malfeasance, misfeasance or nonfeasance or even independently of any one of
them. But Article 36 applied if it arose out of any one of them only. He
thereafter discussed the rule of strict liability as explained by the English
Courts in Rylands v. Fletcher', its modification in Read v. J. Lyons & Co.
Ltd.3 the vicissitudes it suffered subsequently in Rickards v. John Inglis
Lothian4 and Bartlett v. Tottenham5 both on natural and non-natural user of
land and artificial collection of goods resulting in injury and various
exceptions carved out of it. The learned Judge then discussed the ratio in the
State of Punjab v. Modem Cultivators2 and observed
that the rule of strict liability as modified by this Court entitled the
appellant to successfully claim damages.
2 AIR
1965 SC 17: (1964) 8 SCR 273 3 (1947) AC 156: (1946) 2 All ER 471 4 (1913) AC
263: 29 TLR 281 5 (1932) 1 Chancery 114 9
5. Mr
Justice Desai did not agree with Mr Justice Sheth on applicability of strict
liability as erection of dam by the Government on own land to save other land
could not be held to be non-natural user. He, however, held that the act of
planning and constriction of the bundh in question was done in a negligent
manner. He, therefore, set aside the finding of the trial court that it was an
act of God. Having held so the learned Judge relied on Essoo Bhayaji v. The
Steamship 'Savitri '6 and observed as under:
"This
decision lays down a principle that for all actions of tort not specifically
provided for in other articles of Schedule 1, the proper article to apply will
be Article 36, which is a residuary article so far as actions based on torts
including negligence are concerned. Having considered Articles 19 to 27, we
find that they provide for actions in cases of specific types of torts."
And as Article 36 of the Act applied to actions based on negligence, and the
suit was filed after two years from the date the cause of action arose the
trial court did not commit any error in dismissing the suit as beyond time.
6.
When the matter went to the learned third Judge Mr Justice Divan held, that the
decision in Essoo Bhayaji6 and Jadu Nath Dandput v. Hari Kar7 even though not
referred received imprimatur in National Bank of Lahore Ltd. v. Sohan Lal
Saigal8. Consequently so far actions in torts were concerned Article 36 was
residuary article the period of limitation under which would start from the
time the tort took place. The learned Judge was further of opinion that even if
question of liability was based on the rule in Rylands v. Fletcher' as modified
in Modern CultivatorS2 instead of negligence the same result would follow so
far as limitation was concerned as liability based on rule of this decision was
as much liability in tort as on negligence the only difference being that in
the former it is unintended and even independent of negligence. The learned
Judge held that, the words, ,malfeasance', 'misfeasance' and 'nonfeasance' were
to be understood, "...as synonymous with the compendious expression,
'torts' and therefore they must be read as equivalent to tort and the period of
limitation would start from the time when the tort takes place."
7. To
determine if the law stated, seemingly, so simply by the learned third Judge
yet so broadly, is accurate understanding of the exhaustiveness of the
expression used in Article 36 as extending to all kinds of torts it may be necessary
to understand the meaning and scope of torts and the width and ambit of the
expression used in Article 36.
'Tort'
dictionarily means "breach of duty leading to damage". Same meaning
attaches to it in law. Salmond has defined 'it as, "a, civil wrong for
which the remedy is a common law action in unliquidated damages and which is
not exclusively the breach of a contract or the breach of a trust or other
merely equitable obligation." 6 ILR (1886) 11 Bom 133 7 (1913) 17 CWN 308
: 17 CLJ 206 : 18 IC 253 8 AIR 1965 SC 1663: (1965) 3 SCR 293: 35 Comp Cas 604
10
8.
Winfield has defined tortious law arising from breach of a duty primarily fixed
by law; this duty is towards persons generally and its breach is redressable by
an action for unliquidated damages. In general, torts consist of some act done
without just cause or excuse.
"The
law of torts exists for the purpose of preventing men from hurting one another
whether in respect of their property, their presence, their reputations or
anything which is theirs." Injury and damage are two basic ingredients of
tort.
Although
these may be found in contract as well but the violations which may result in tortious
liability are breach of duty primarily fixed by the law while in contract they
are fixed by the parties themselves. Further in tort the duty is towards
persons generally. In contract it is towards specific person or persons. An
action for tort is usually a claim for pecuniary compensation in respect of
damages suffered as a result of the invasion of a legally protected interest.
But law of torts being a developing law its frontiers are incapable of being
strictly barricaded.
Liability
in tort which in course of time has become known as 'strict liability',
'absolute liability', 'fault liability' have all gradually grown and with
passage of time have become firmly entrenched. 'Absolute liability' or
"special use bringing with it increased dangers to others"(Rylands v.
Fletcher') and 'fault liability' are different forms which give rise to action
in torts. The distance (sic difference) between 'strict liability' and 'fault
liability' arises from presence and absence of mental element. A breach of
legal duty wilfully, or deliberately or even maliciously is negligence
emanating from fault liability but injury or damage resulting without any
intention yet due to lack of foresight etc. is strict liability. Since duty is
the primary yardstick to determine the tortious liability its ambit keeps on
widening on the touchstone of fairness, practicality of the situation etc.
In Donoghue
v. Stevenson9 a manufacturer was held to be liable to ultimate consumer on the
principle of duty to care. In Anns v. Merton London Borough Council1O it was,
rightly, observed:
"[T]he
broad general principle of liability for foreseeable damage is so widely
applicable that the function of the duty of care is not so much to identify
cases where liability is imposed as to identify those where it is
not........" Truly speaking entire law of torts is founded and structured
on morality that no one has a right to injure or harm others intentionally or
even innocently. Therefore, it would be primitive to class strictly or close
finality (sic finally) the ever-expanding and growing horizon of tortious
liability. Even for social development, orderly growth of the society and
cultural refineness, the liberal approach to tortious liability by courts Is
more conducive.
9. In
between strict liability and fault liability there may be numerous
circumstances in which one may be entitled to sue for damages. And it may be
partly one or the other or may be both. In a welfare society construction 9
(1932) AC 562: 1932 All ER Rep 1 10 (1978)AC728:(1977)2 All ER492 11 of dam or bundh
for the sake of community is essential function and use of land or accumulation
of water for the benefit of society cannot be non-natural user. But that cannot
absolve the State from its duty of being responsible to its citizens for such
violations as are actionable and result in damage, loss or injury. What is
fundamental is injury and not the manner in which it has been caused.
'Strict
liability', 'absolute liability', 'fault liability' and 'neighbour proximity'
are all refinements and development of law by English Courts for the benefit of
society and the common man. Once the occasion for loss or damage is failure of
duty, general or specific, the cause of action under tort arises. It may be due
to negligence, nuisance, trespass, inevitable mistake etc. It may be even
otherwise. In a developed or developing society the concept of duty keeps on
changing and may extend to even such matters as was highlighted in Donoghue v.
Stevenson9 where a manufacturer was held responsible for injury to a consumer.
They
may individually or even collectively give rise to tortious liability. Since the
appellant suffered loss on facts found due to action of respondent's officers
both at the stage of construction and failure to take steps even at the last
moment it was liable to be compensated.
10.
But to be actionable and get redress from court it must assume legal shape by
falling in one or the other statutorily, judicially or even otherwise recognised
category of wrong. That is why the appellant based his claim on negligence.
Therefore, it is necessary to determine what is the ambit of it as it was vehemently
urged that once the State was found guilty of negligence the appellant could
succeed not only by establishing negligence but also approaching the court
within the statutory period provided under the Law of Limitation and the courts
were precluded from invoking either the rule of strict liability or any other
concept. According to the learned counsel civil liability should be dealt
within the four corners of statutory enactments both for sake of certainty and
uniformity irrespective of whether the party benefited was damage. Winfield has
defined 'negligence' as under:
"
'Negligence' as a tort is the breach of a legal duty to take care which results
the State or an individual. For this submission advanced with plausibility it
appears necessary to determine how wide or narrow is the ambit of negligence in
realm of torts. Can it be strictly compartmentalised? When the State was found
reluctant in discharge of its duties or public responsibility then was it
negligence alone or it was something more or less?
11.
'Negligence' ordinarily means failure to do statutory duty or otherwise giving
rise to in damage, undesired by the defendant, to the plaintiff. Thus its
ingredients are (a) a legal duty on the part of A towards B to exercise care in
such conduct of A as falls within the scope of the duty;
(b) breach
of that duty;
(c) consequential
damage to B."
12
According to Dias, "[L]iability in negligence is technically described as
arising out of damage caused by the breach of a duty to take care." These textbooks
thus make it amply clear that the axis around which the law of negligence
revolves is duty, duty to take care, duty to take reasonable care. But concept
of duty, its reasonableness, the standard of care required cannot be put in
strait-jacket. It cannot be rigidly fixed.
The
right of yesterday is duty of today. The more advanced the society becomes the
more sensitive it grows to violation of duties by private or even public
functionaries. Law of torts and particularly the branch of negligence is consistently
influenced and transformed by social, economic and political development. The
rule of strict liability developed by English Courts in Rylands v. Fletcher'
was judicial development of the liability in keeping with growth of society and
necessity to safeguard the interest of a common man against hazardous
activities carried on by others on their own premises even though innocently.
By conservative standard it could not be termed as negligence as damage arose
not by violation of duty. Yet the law was expanded to achieve the objective of
protecting the common man not by narrowing the horizon of legal injury but by
widening it. In Donoghue v. Stevenson9 the House of Lords held a duty to take
care as a specific tort in itself. Even improper exercise of power by the
authorities giving rise to damage has been judicially developed and distinction
has been drawn between power coupled with duty. Where there is duty the
exercise may not be proper if what is done was not authorised or not done in
the bona fide interest of the public. In David Geddis v. Proprietors of the
Bann Reservoir' 1 the failure to keep the reservoir clean as a result of
blameworthy negligence leading to overflow was held to be liable for
negligence. It was reiterated in Tate and Lyle Industries Ltd. v. Greater
London Council12. It was held that where public right was interfered with which
resulted in public nuisance the claim for damages was maintainable. The English
Courts have extended the principle of strict liability to varied situations.
Thus the distinction arising out of damage due to negligence and even without
it rather unintentionally and innocently is a firmly established branch of law
of tort. In Read v. J. Lyons & Co. Ltd.3 it was observed that damage caused
by escape of cattle to another land was a case of pure trespass constituting a
wrong without negligence. Thus negligence is only descriptive of those sum
total of activities which may result in injury or damage to the other side for
failure of duty both legal or due to lack of foresight and may comprise of more
than one concepts known or recognised in law, intended or unintended.
12.
Was the ratio in Rylands v. Fletcher' modified by this Court in Modem
Cultivators29 If So to what extent? What is its effect on facts of this case?
That was a case where the land of the plaintiff used for silting operation was
flooded due to escape of canal water. It was claimed that in 11 (1878)3AC430 12
(1983) 2 AC 509: (1983) 1 All ER 1 159 13 absence of proof of negligence the
suit was not liable to be decreed. The Court did not apply the principle laid
down in Rylands v. Fletcher' :
"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 ... a principle derivatively created from the rule of 'strict
liability'... as canal systems are essential to the life of a nation and land
that is used as canals is subjected to an ordinary use and not to unnatural
use." The Court preferred to rely on the principle developed by American
Courts on canal breaks and applied the principle of 'fault liability' which may
even be inferred from circumstances. The view of the High Court, therefore,
that the rule of strict liability was modified by this Court in Modern
CultivatorS2 does not appear to be correct.
'Absolute
liability', or 'strict liability' and 'fault liability' do not go together.
13.
With this background it may now be examined if the High Court, even after
recording the findings in favour of the appellant, was justified in throwing
out the suit because Article 36 is residuary article extending to all kinds of
torts. The article as it stood at material time prior to 1963 read as under
------------------------------------------------------- "Description of
suit:- 36. For compensation for any malfeasance, misfeasance or non-feasance
independent of contract and not herein specially provided for." Period of
limitation:-- Two years Time from which period begins to run:- When the
malfeasance, misfeasance or non-feasance takes place.
14. In
Black's Law Dictionary the meaning of each of these expressions is explained as
under:
"Malfeasance.-
Evil doing; ill conduct. The commission of some act which is positively
unlawful; the doing of an act which is wholly wrongful and unlawful; the doing
of an act which person ought not to do at all or the unjust performance of some
act which the party had no right or which he had contracted not to do.
Comprehensive term including any wrongful conduct that affects, interrupts or
interferes with the performance of official duties.
Misfeasance.-
The improper performance of some act which a man may lawfully do.
Non-feasance.-
Non-performance of some act which ought to be performed, omission to perform a
required duty at all, or total neglect of duty." Stroud defines it as
under:
"Misfeasance.-
There is no such distinct wrongful act known to the law as 'misfeasance.
14
Non-feasance.- The decisions as to 'nonfeasance' cannot be invoked to excuse a
highway authority from liability for nuisance caused by a defective stud
brought on to the highway, not for the purposes of the highway, but for
purposes of traffic regulation under the Road Traffic Acts." The words are
undoubtedly of very wide import. They are strong expressions as well.
Malfeasance and nonfeasance bring into motive, intention, malice etc. Law of
torts, however, is not confined and cannot be strictly categorised.
Where
the State undertakes common law duty its actions may give rise to common law
tort. Negligence in performance of duty is only a step to determine if action
of Government resulting in loss or injury to common man should not go
uncompensated. If construction of bundh is a common law or public duty then any
loss or damage arising out of it gives rise to tortious liability not in the
conservative sense but certainly in the modem and developing sense. A common
man, a man in the street cannot be left high and dry because wrongdoer is
State. The basic element of tort is duty. And that comes into play fully when
there is a common law duty.
Since
construction of bundh was a common law duty any injury suffered by a common man
was public tort liable to be compensated. Can it be said to be covered in the
expressions used in Article 36? Malfeasance and misfeasance necessarily import
intention, knowledge and malice, therefore, they may not be available in every tortious
liability arising out of violations of public duty. Evil doing or ill conduct
postulates something more than mere omission or commission. Misfeasance is now recognised
as imputable to discharge of duty arbitrarily.
In Calveley
v. Chief Constable of the Merseyside Policel3 it was held that for the tort of
misfeasance it was necessary that the public officer must have acted
maliciously or with bad faith. In Dunlop v. Woollahra Municipal Council14 it
was held that without malice the claim for misfeasance could not be accepted.
Non-feasance on the other hand is omission to discharge duty. But the omission
to give rise to action in torts must be impressed with some characteristic,
namely, malice or bad faith. The expressions 'malfeasance', 'misfeasance' and
'nonfeasance' would, therefore, apply in those limited cases where the State or
its officers are liable not only for breach of care and duty but it must be
activated (sic actuated) with malice or bad faith. The defective planning in
construction of a bundh, therefore, may be negligence, mistake, omission but to
say that it can only be either malfeasance, misfeasance and nonfeasance is not
correct. Observations in Bhayaji6 to the following effect, "The words
'malfeasance, misfeasance, or nonfeasance independent of contract' used in
Article 36, are of the widest import, and embrace all possible acts or
omissions, commonly known as torts by English lawyers;
that
is to say, wrongs independent of contract." 13 (1989) 1 All ER 1025 14
(1981) 1 All ER 1202: (1982) AC 158 15 were made in a different context and was
not intended to be so widely stated as has been understood by the High Court as
the Court while examining various articles of Limitation Act for purposes of
deciding if the claim was covered in one or the other articles observed "I
rather from such a perusal come to the conclusion that it was intended that two
years should be the outside time allowed for bringing a suit founded upon tort,
except in certain well-defined particular instances."
15.
Similarly Jadu Nath Dandput v. Hari Kar7 was a case of illegal distress and carrying
of the standing crops. The Court did not agree that it was a case squarely
covered under Article 36 as the cause of action arose partly under Article 36
and partly under Article 49. But what impressed the High Court was the extract
from Stephen's Commentaries to the following effect:
"Personal
actions are actions founded either on contracts or on torts; that is to say,
they are either actions ex contract or actions ex delicto; torts being wrongs
independent of contract; and being either (i) nonfeasances, or the omission of
acts which a man was by law bound to do, or (ii) malfeasances, or the
commission of acts, which were themselves unlawful." That is why it was
observed that these decisions even though not noticed received approval in
National Bank of Lahore Ltd. v. Sohan Lal Saigal8. Although the Court held that
claim for damages for loss of contents from the lockers arose out of breach of
contract and it was not a case which could be considered to be covered under
tort yet while dealing with argument advanced on Article 36 the Court observed:
"Article
36 applied to acts or omissions commonly known as torts by English lawyers.
They
are wrongs independent of contract.
Article
36 applies to actions 'ex delicto' whereas Article 115 applies to actions 'ex contractu'.
These
torts are often considered as of three kinds, viz., nonfeasance or the omission
of some act which a man is by law bound to do, misfeasance, being the improper
performance of some lawful act, or malfeasance, being the commission of some
act which is in itself unlawful." This extract was understood by the High
Court as demarcating all violations either as 'ex delicto' or 'ex contractu'.
But it
was erroneous understanding of the decisions to hold that Article 36 was
residuary article and applied to all tortious liabilities. The Court itself had
taken care by using the word 'often'. Even in England where the law of torts
has been developed demarcations have not been frozen so rigidly as has been
attempted to be done by the High Court. Use of expression, "not herein
specifically provided for" in Article 36 was to make it residuary article
to such wrongs for which limitation was provided in the article but the
interpretation placed by the High Court that it was exhaustive of all torts,
was not in conformity with principle of 16 interpretation nor the scheme and
purpose of the enactment.
This
Court in National Bank case8 extracted the English principle to demonstrate
that it was residuary provision to distinguish it from contractual obligations
but it could not be narrowed down so as to be exhaustive of all torts. As
explained earlier damages arising out of strict liability or duty to take care
as was in Donoghue v. Stevenson' or public law duty may not be strictly covered
ill these expressions.
As has
been explained earlier the damage was caused to the appellant not only because
of negligence of officers but also because it was due to failure in discharge
of public duty and mistake at various stages. Liability in tort may arise as
observed by Salmond without fault. The basic ingredients of torts, namely,
injury and damage due to failure to observe duty has been found to have been
established. In the conservative sense it was negligence.
But in
modern sense and present day context it was not only negligence but mistake,
defective planning, failure to discharge public duty. It was thus tort not in
the narrow sense but in the broader sense to which Article 120 applied.
The
suit, therefore, could not be thrown out as it was filed beyond two years from
the date the incident took place. The substantial question of law if Article 36
was exhaustive of all torts is thus answered in the negative. Further the rule
in Rylands v. Fletcher' has not been modified by our Court in Modern
Cultivators2. And the article of Limitation Act applicable to the facts of the
case was Article 120 and not Article 36.
16.
Even assuming that Article 36 of the Act applied, was the suit filed after
expiry of two years from the date the incident took place, barred by time? In
other words what is the exact point of time from when the period of limitation
has to be computed. The First Schedule to the Act as it then stood made three
divisions, first, for suits, second for appeal and third for applications. The
nature and description of the suit is mentioned in the 1st column of the
Schedule, period of limitation in the 2nd and the time from which the period
begins to run in the 3rd and the last column. In contents the former deals when
the right to sue accrues, the latter when the right shall come to an end if not
exercised within the period provided as it cannot remain uncertain or in doubt
or in suspense forever and the last deals with computation, namely, the point
from which the limitation begins to run. A look at the entries in the first
division would indicate that different point of time has been adopted for
different nature of suits. In some it is from the date of the order, in others
from the date of knowledge.
In yet
others when the cause of action accrues etc. For compensation for damages it is
linked either with nature of claim, namely, if it is one time of cause of
action or recurring cause of action etc. That is why in some of these items the
period begins to run from the time and date of the incident and in others from
the date of knowledge. In Article 36 the time begins to run, " when the
malfeasance, misfeasance or nonfeasance takes place". The word 'when'
means at what time. The time according to finding recorded by the High Court
was negligence in act of planning and construction of bundh.
When
did it take place? 'Take' has many shades of meaning.
How it
should be understood, precisely, in a set of circumstances 17 depends on the
context in which it has been used. Literally speaking it can mean when it
happens but that would not be consistent with the purpose of its use and may
defeat the very objective as malfeasance or nonfeasance arose not on 4th or 5th
July but when dam was started in 1955 and in any case when completed in 1956.
At that time there could have been no occasion for the appellant to claim any
damages.
Therefore,
time obviously cannot be said to run either from the date the construction of bundh
was commenced or it was completed. Therefore, the computation has to be from
some other point. For instance, where there is a single wrong the time may
start running immediately. In cases of assault, battery or death the cause of
action may arise immediately. The limitation may be counted from that very
point. It is the individual or the single act which by itself furnishes the
cause of action. But there may be others where even though injury may have been
caused but the cause of action may not arise unless something more happens.
For
instance if one accumulates something hazardous on its own premises and it leaks
then the cause of action will arise not by accumulation or even by mere leakage
but cause of damage and injury. Therefore, the construction of the words 'when'
and 'takes place' used in Article 36 has to be construed liberally so as not to
deprive the person who suffers damages. In wrongs like negligence, strict
liability or violation of public duty time begins to run not before the damage
takes place. But the computation under the article has to be from malfeasance,
misfeasance and nonfeasance. It has been explained earlier that the negligence
or violation in such duty which results in damage could not furnish the
starting point. What could be the other point? The cause of action to claim
damages arises when the actual loss has taken place. It is thus not the date on
which negligence or mistake took place but the date when injury is suffered.
But computation has to be from misfeasance or nonfeasance etc. that is
violation of duty.
This
duty has to be different than the duty which was the cause of negligence.
Therefore in such actions which are latent in nature the aggrieved party has to
make a claim for damages and it is the failure in discharge of this duty in
this regard which too can furnish the starting point of limitation. Since the
authorities refused to pay damages even though it was got assessed at their own
direction the computation of the period for filing suit could arise from that
date. Otherwise it would cause great injustice. A common man, an average
citizen who in a developing country cannot afford to pay huge court fee would
be deprived of his just claim only because he was pursuing his remedy
vigilantly in the Government of a welfare State.
17.
Therefore the computation for purposes of limitation under Article 36 could
commence either from the date when malfeasance, misfeasance or nonfeasance
occurred or from the date when the damage took place or where claim is lodged
within period allowed by law and the damage is ascertained then from the date
the claim is rejected. It is the improper performance of duty or arbitrary
action of the authorities in not accepting the claim when damage was found by
the Official Committee to have taken place. The limitation to file the suit on
facts of this case arises from the date 18 the Government refused to pay the
amount determined by the Committee. Since the rejection was not communicated
nor the copy of the report was supplied despite request the suit could not be
said to be barred by time.
18. In
the result, this appeal succeeds. The decree and order passed by the two courts
below are set aside. The suit of the appellant for Rs 1,58,735, the amount of
damage determined by the trial court which was neither appealed from nor
objected to by the respondent is decreed with costs throughout. The respondent
shall further pay interest at the rate of 6% per annum from the date of decree
till December 1982 and at the rate of 9% per annum from 1982 to December 1992
and at the rate of 12% per annum from January 1993 till the amount is paid.
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