TaxTMI 
TaxTMI 
1964 (5) TMI 46
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....reach 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, 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 hav....
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....lready 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([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 re....
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....loods in the nullahas but as the canal was 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 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....
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....ediment 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 pres- cribes a period of three months was applicable and not Art. 36 which prescribes a period of two years. This wag held agains....
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....An opening in the western bank was 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 st....
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....d not be expected to provide. Although 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 ....
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....e 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 (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 purpos....
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....t 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(I.L.R. to Lah. 171 P.C.). 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 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 or....
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....rsuance 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(I.L.R. [1945] Lah. 523 F.B. 51 S.C.-19. ) 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 by Courtney Terrell C.J., in Secretary of State v. Lodna Colliery Co. Ltd. ((1) I.L.R. 1 5 Pat. 510) 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 t....
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....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 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 ex....
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....thing 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 est....