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TMI Blog1964 (5) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roved. 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([1945] L.R 26 Lah. 523). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... running full supply, water brought by the nullahas to the silting tank could not get to the canal and over- flowed 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 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 ₹ 20,000 against Government, but it was reduced by the High Court to ₹ 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 pres- cribes 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in that year and the 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 foreseable 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) [1932] A.C. 562) 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(L.R 3 H.L. 300 That rule, shortly stated, is: that any occupier of land who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has been held that a canal company is not liable for damages occasioned by the per- colation 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 are opposed to the weight of reason and autho- rity. Perhaps the liability is viewed strictly as an inducement to care Safety is best secured when. it is made the responsi- bility 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. (3 H C. 596 : 159 E R. 663) 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 subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts 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 (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, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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(64 I.A. 36) 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 profess- ing to be done in pursuance of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dayatullah 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(18681 L.R. 3 H.L. 330) 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([1865] 2 W.R. 43); 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 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([1968] L.R. 3 H.L. 330) 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 ulti- mately occurred or whether any erosion of the banks parti- cularly at the place where one of the banks had been plugged had been noticed and no action or timely actio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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