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TMI Blog1968 (3) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... the road, there is an open nullah running parallel to the road. This nullah is about 40 to 45 feet wide and provides a passage for dirty water and rain water passing to the creek. The plaintiffs alleged that the defendants covered the said nullah with a slab after narrowing it to a width of 15 feet where the slab was put without providing adequate passage for rain water and during the monsoon of 1963 for water from the catchment area constituting Varala Tank. The Government of Maharashtra at the instance of the defendants demolished a portion of Varala Tank in April 1963. In consequence, the rain water falling in the catchment area of the lake was expected to pass along with the rain water falling in the catchment area of the nullah through this nullah on to the creek. The plaintiffs say that in spite of the partial demolition of the Varala Tank, over a height of six feet from the ground level, the defendants commenced the work of laying the cement slab across the nullah after the demolition of the said part of the said tank and completed the work of the laying of the slab in the second week of June 1963. They further alleged that the centring work to support and settle the slab c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bombay District Municipal Act, even if they were done negligently. He contended that all suits for damages for loss caused by negligence of the defendants were barred, provided that such acts were done in the discharge of duties enjoined or authorised by the said Act. Section 3(20) of the Bombay General Clauses Act, 1904, is a verbatim reproduction of Section 3(22) of the Indian General Clauses Act, 10 of 1897 and reads as under: A thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not . 5. The argument of Mr. Rege was that S. 167 of the Bombay District Municipal Act, barred all suits in respect of acts done in good faith in discharge of duties enjoined or authorised by the said Act. The expression done in good faith has been defined in the Bombay General Clauses Act to mean done honestly whether done negligently or not . He therefore argued that all suits for recovery of damages for loss caused by the defendants' negligence were barred, and negligence of a District Municipality could never be actionable. 6. We pointed out to Mr. Rege the provisions of S. 167A(1) of the Bombay District Municip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mple, with a view to construct a road a municipality wishes to blast a rock with dynamite near a town and acts against expert opinion that the town is within the range of harm, and the rock should be removed by quarrying it cannot be said to act honestly if it proceeds to blast the rock. It can also not be said to act honestly if it proceeds to blast the rock without taking expert advice. If it refuses to see light and hides its face from the light it would be acting with wanton and wilful negligence and its negligence coupled with want of honesty and good faith would be actionable. In the matter before us it is common ground that in laying the slab complained of the defendants were carrying out a duty authorised by Section 54(1 )(i) of the Act. But if they carried out the said duty with the knowledge of demolition of Varala Dam up to a height of six feet and with such knowledge narrowed the nullah or allowed the centering to remain and to obstruct the passage of bushes and debris, they would not be said to act honestly. In such case, they knew and ought to have known that the constructed water passage would not be sufficient to carry the water coming from the additional catchment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. J. in the case of Govind Sadashiv Pathak v. Sadashiv Shivrao Nisal AIR1955Bom93 where the expression good faith in Section 14(2) of the Indian Limitation Act, 1908, came up for interpretation. These observations are: Therefore, while the Bombay General Clauses Act emphasises honesty and ignores the factor of negligence, the Limitation Act emphasises not honesty . but the fact that due care and attention has been given to the prosecution of the earlier application . 11. We have already stated that in Section 3(20) of the Bombay General Clauses Act, the emphasis is on acting honestly and if a municipality acts honestly, mere negligence would not be actionable. 12. Mr. Rege has cited before us the case of Emperor v. R. K. Naik 41 Bom LR 1227, AIR 1940 Bom 35 which interprets a section of the District Local Boards Act restricting the right to sue a local board. This section is differently worded and is not of any help. Mr. Rege has also cited the case of Kedarnath v. State. AIR1965All233 which interprets good faith in the Indian Penal Code, where also the definition is differently worded and is in context of criminal law. Mr. Rege also cited the case of Babulal Aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, which an honest man of ordinary prudence is accustomed to exercise, is, in law, a want of good faith. Once this is shown, good faith does not require a sound judgment . 14. With these observations we are in respectful agreement. The definition of the term in the General Clauses act lays stress on the one aspect of honesty only irrespective of negligence, but that in the. Indian Penal Code lays stress on two aspects, viz., honesty of intention along with due care and attention. Both the definitions retain the real essence of good faith, which is honesty. This is a feature common to both the definitions. Good faith implies upright mental attitude and clear conscience. It contemplates an honest effort to ascertain the facts upon which the exercise of the power must rest. It is an honest determination from ascertained facts. Good faith precludes pretence, deceit or lack of fairness and uprightness and also precludes wanton or wilful negligence. We must therefore see by application of these principles whether the defendants acted honestly. 15. Mr. Khambatta on behalf of the plaintiffs contended that Section 167 must be strictly construed as it takes away a citizen's right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention of the Legislature to make a departure from these principles. 17. We must now proceed to consider whether the defendants acted honestly in exercise of their statutory powers and so in good faith so as to be entitled to the immunity provided in Section 167 of the Bombay District Municipal Act, 1901. 18. Mr. Mohanlal Parsharam Karwa the President of the Bhivandi Municipality from 1961 has given evidence in the lower Court on behalf of the defendants. He stated in his examination-in-chief that the Varala Dam was not within Bhivandi Municipal limits and that the staff working at the dam is paid and controlled by the Health Department of the Government of Maharashtra and that the contract for the re-construction was also given by that department. He has, however, admitted that the expenses incurred for the re-construction are borne by the Municipality, He has also admitted that even before the contract for construction was given by the Government, the estimate of cost was submitted to the Municipality as the Municipality had to pay the amount although it had no control over the reconstruction work. He also admitted that before the monsoon of 1963, about 15 feet in length o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the correspondence was clearly stated in the plaintiffs' notice as well as the parties to the correspondence. Dates of letters could only be known to the defendants. The reply obviously was evasive. The defendants did not produce correspondence in Court in spite of the notice. 20. In cross-examination Karwa the defendants' President was put several questions about the correspondence and about its contents, but still the defendants chose not to produce the correspondence. He stated that the defendants had been pressing the Government of Maharashtra to reconstruct the dam soon. He admitted that the defendants had been asking for re-construction due to leakage in the dam. When pressed to answer why the correspondence was not being produced, he replied I cannot state why the correspondence that took place between us and the Irrigation Department was not produced by us . Needless to say that the correspondence was not produced in the lower Court and has not been produced at all. We would, therefore, be justified in drawing an adverse inference against the defendants that they were aware that the Varala dam had been demolished in April 1963 from its height over 6 feet from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lower Court admitted the extract in evidence. The lower Court has observed that this being an extract from a public document, its genuineness could not be doubted and in the interest of justice its production was allowed. We, however, think that this was admitted at too late a stage and the defendants had no opportunity to cross-examine or examine any witness on the extract. We have, therefore, not relied on this piece of evidence. 22. After the floods of 5th July 1963 on the very day, Karwa, the President of the defendants, sent a telegram to the Government (Exhibit 228) stating that due to breakage of Varala Talao water had rushed in the town, followed by the letter of 6th July 1963 (Exhibit 231), stating that before commencing the work of dismantling the old dam, no precautionary steps for the flow of water had been taken by the contractor and the result was that the capacity of the nullah was not sufficient to meet with the flow of water coming from the Talao and it would appear that the position would continue to remain the same till the monsoon was over. 23. But even apart from this extract, taking into consideration that (a) the Varala dam was the principal source of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch earlier and there was no want of good faith in planning it The time and manner of execution however stand on a different footing. 25. The real dispute is about the date of the laying of the slab between Teen Batti bridge and Habasanali bridge which caused the damage. Pherwani, a partner of the plaintiffs who gave evidence in the lower Court, stated that the defendants constructed a wall on either side on the nullah and put a slab over it, that the slab was completed in the middle of June 1963 and that till the time of the flood on 5th July 1963. the centering material was not removed from the nullah and that due to the putting of the slab, the width of the slab was narrowed from 40 feet to about 15 feet. This shows that while the Dam was demolished in April 1963, the slab was completed in the middle of June 1963. It may have been commenced 15 to 20 days earlier, as It is the evidence of the defendants that it took about 25 days to complete this slab. It is also a matter of common knowledge that once RCC slabs are started, work goes on continuously and without a break to avoid gaps and cracks. 26. As against this, the defendants relied on a letter (Exhibit 226) alleged to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuting this work did not act honestly or in good faith and are not protected in respect of their negligence by Section 167 of the Bombay District Municipal Act and that the present suit was not barred by Section 167. 28. Coming to the Question whether the defendants are guilty of negligence or not, we must first observe that if things authorised to he done by a statute are carelessly or negligently done, an action is maintainable. Such a breach is known as statutory negligence. The word 'negligence' in such cases means adopting a method which in fact results in damage to a third person except in a case where there is no other way of per forming the statutory duty. So that it is negligent to carry out work in a manner which results in damages unless it can be shown that that - and that only - was the way in which the duty could be performed. Powers given by a statute must be exercised reasonably, and not to the prejudice of the public. 29. The negligence alleged by the plaintiffs is set out in paragraphs 4 to 8 of the plaint and consists of: (a) In May 1963 the Varala dam was demolished by the Government of Maharashtra. In consequence of the demolition the rain wate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual measurement of the water level. The defendants themselves put a suggestive question to Pawankumar in his cross-examination that water inside the factory premises was 6 deep. This suggestion itself shows that it was admitted by the defendants that there was considerable amount of water in the plaintiffs' premises. There is, therefore, no doubt that, whether the level of the water in the plaintiffs, premises was 6 or 2 feet or anywhere between 6 and 2 feet, water had entered the plaintiffs' premises. Pherwani has deposed that he took photographs of the flooded conditions of the premises. He has produced these photographs and has not been cross-examined on them. The photographs show that there is water inside the plaintiffs' premises. Karwa the President of the defendants did not state that water had not entered the plaintiffs' premises. 31. The plaintiffs commissioned one N. B. Malbari a well qualified and Senior Engineer to prepare a report on the flooding in their premises on 5th July 1963 and to give evidence. In his report dated 8th June 1965 (Exhibit l46) he states that he visited and inspected the plaintiffs' premises on 30th March 1965 and 10th Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been increased for this added discharge, if the nullah had to be slabbed before the dam was re-constructed. He was also of opinion that due to faulty design and the choking up of water way, the water could not flow through and the water entered in the factory premises of the plaintiffs. 32. Malbari gave evidence in the lower Court in support of his report (Exhibit 146) and stated that his estimate of discharge of 0.6 square miles of catchment area was 1100 cubic feet per second (cusec) and for a catchment area of 0.9 square miles it was 150 subsection He stated that in his report he had assumed the rain fall at 3 per hour which was according to the P. W. D. Handbook. In cross-examination, he admitted that if the rainfall did not exceed 1 1/2 per hour, the present water-way would have been sufficient to drain the water. We might here observe that Malbari has not been cross-examined on his conclusions and his evidence appears to have gone unchallenged. Apart from this, we find his evidence to be thorough as well as reliable. 33. Earlier in point of time and made at the instance of the defendants is the report dated 9th, July 1963 of V. B. Manerikar, Chief Engineer to the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drain area was 0.9 square miles and that out of this 0.3 square miles was intercepted by Varala dam and that in his opinion water-way should have been 120 square feet instead of the existing 75 square feet. He stated that the contract for reconstruction of the dam was given with the concurrence of the Municipality and that the Municipality was aware of the demolition work 34. As a result of a trunk-call from the defendants, M. N. Shevade, Sub-Divisional Officer to the Government of Maharashtra, visited the site on 5th July 1963, the day of the flood. He has not been examined by any party, but his report appears to have been admitted in evidence without any objection from any-body. In his report (Exhibit 241), he states that as a result of a trunk-call from the President of Bhivandi Municipality on 5th July 1963, he visited the site and inspected the flood caused by the heavy rains and due to demolishing of the Varala lake. He stated that due to demolishing of the Varala lake all water from the catchment area of the lake rushed towards the town as there was no other outlet. He found that the nullah through which the water rushed was not cleaned and drained and thereby all the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I, page 717, gives formula for designing drainage works over mullahs with catchments up to one square mile. At page 818, it states that provision should be made for rainfall at 3 per hour for catchment areas up to one square mile. This passage has been followed by Malbari in his report. This book is accepted by Kini as authority in his evidence, but admittedly not followed by him. 37. Pherwani, in his deposition, has stated that about 80 lorry-loads of debris were removed. The defendants suggested to him in cross-examination that about 20 lorry-loads had been removed. Karwa in his evidence has stated that about 30 to 35 truck-load of debris had been removed and that the work was going on for two days. 38. K. H. Thanawalla from the office of Mamlatdar has given evidence about the figures of rain fall maintained in his office and states that on 5th July 1963 there was a rainfall of about 4 and on 6th about 6 and on 7th about 2 inches. Karwa has admitted that the defendants had not maintained any record of rain fall. 39. On the above evidence, we are of the opinion and we so hold that the narrowing of the water-way and putting a slab on it at Habsanali bridge was ill-timed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of normal rain water and in addition, they allowed centering to remain and garbage to collect. They cannot absolve themselves of their negligence by throwing the blame on the Government. 41. Coming to the quantum of damages, we find that on 5th July 1963, the plaintiffs through their Advocate served a notice on the defendants and several of their officers, including Karwa their President (Exhibit 79) stating that water had entered their factory premises on Yacoob Road on account of the flood and damaged their goods and that as the damage caused was considerable and the plaintiffs were holding the defendants responsible for the cause of the damage and intended to recover damages from them, they desired to make a Panchnama assessing the damage done. They stated that they intended to call experienced persons to assess the damage and to make a Panchnama and as the defendants were vitally concerned with the assessment of damage, they were requested to remain present at the plaintiffs' premises on Saturday 6-7-l963 at 1-00 P. M or to depute someone to represent them, The plaintiffs also offered that in case the time given in the notice did not suit the defendants, they could sug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an attempt to argue that the remaining part of the claim had been wrongly disallowed. Ultimately, however, he confined the claim in the appeal to the sum of Rs. 54,560 allowed by the lower Court. 44. Sikandar M. Faki, one of the Panchas, who is in a similar business, gave evidence in support of the statements contained in the Panchanama. Pherwani, a partner of the plaintiffs has given evidence to prove the extent of damage and the value thereof. He has produced account books in support of the items. Three extracts prepared from the account books were produced. Exhibit 73 is an extract from the account books regarding goods of third parties lying m the plaintiffs' premises for processing and damaged by the flood. Exhibit 76 is an extract from account books in respect of chemicals damaged and their value Exhibit 247 is an extract from account books in respect of yarn damaged. Pherwani has not been cross-examined materially on the evidence pertaining to loss and damage or in respect of account books or in respect of the assessment of damage and its value in respect of the yarn, the plaintiffs assessed the damage at 70 per cent. of the value. Pawankumar has deposed that the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of water cannot be ascertained. It may have been anywhere between 6 to 2 feet. We have, however, no doubt about the extent of the loss caused to the plaintiffs according to the evidence given in the lower Court, Pherwani has hardly been cross-examined on the photographs also. 47. The defendants contended that they had engaged qualified engineers and experienced contractors and, therefore, they could not be guilty of negligence. With regard to the contractors however much experienced, they would merely carry out the work according to the plans prepared by the Municipality. If the engineers are negligent, the defendants would be liable. The liability of principal for the wrongful act of his agent rests on the grounds that the principal is a person who has selected the agent and that the principal having delegated the performance of a certain class of acts to the agents, the principal should bear the risk. All that is necessary is that the act should have been committed by the agent in the course of his employment, although the principal did not authorise, or justify, or participate in the act or even if he forbade it or disapproved of it The liability of the principal for the wro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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