TaxTMI 
TaxTMI 
2016 (5) TMI 1572
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....arming level because of heavy rains and non-release would have breached the dam. The action was, thus, taken in public interest and it was occasioned because of the rains, which was an act of God. The Appellants, on the other hand, contend that it was sheer negligence on the part of the Respondents in not maintaining low level of the water keeping in mind the ensuing monsoon season and, therefore, the damage which the Appellants have suffered has direct nexus or causal connection with the aforesaid act of negligence and it cannot be attributed to the rains. It is, thus, pleaded that the Respondents cannot term it as an act of God and excuse themselves from the tortious liability. 3. There is hardly any dispute on the factual matrix under which the aforesaid issue has cropped up for determination. 4. The Appellants herein are the owners of land, which is proximate to the Mazum dam that has been built over river Mazum. They had grown hybrid berry trees over the said land which, they claim, belong to their ancestors and were earning their livelihood from the fruits of the said trees. Respondents have built a dam over River Mazum in the nearby area for supplying water for irrigationa....
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.... dam, known as Mazum dam Water Scheme, is constructed was situated nearby the village Volva of Modasa, which is 33 kms. away from the place of the Appellants. It was further stated that due to heavy rains the water level of the dam had gone abnormally high and, therefore, there was no option but to release further water flow from the dam in the river to control the floods. For this purpose, advance information was given to the offices such as the Head of Departments, Revenue Authorities, etc. It was also stated that during the monsoon season at what level the capacity of the water is to be filled in the Mazum dam is decided in advance. But in the eventuality of the heavy rain fall at the upper side areas, to maintain the level of the water dam, the additional water received from the upper areas are released into the river by opening the doors of the dam so that any damage to the dam can be prevented. This decision of how much water has to be released into the river is taken by the Competent Officer. On that basis, it was pleaded that no compensation was payable as the Respondents were forced to take the decision to avert natural calamity and this decision was occasioned because of ....
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....ge is caused, it was a force majeure circumstance and, therefore, the Appellants were not entitled to any compensation. 11. We may state at the outset that there is no dispute on basic facts. It is admitted by the Respondents that a decision was taken to release the water from the dam. It has also come on record that the Respondents had decided to release 60,000 cusecs of water. Because of the release of this water, land of the Appellants with standing fruit bearing trees got submerged. It resulted in uprooting and destroying many trees. The panchas, who were appointed by the Court to visit the site have submitted their report to this effect stating that almost 1500 trees were damaged. On these facts, two aspects need consideration, which are: (a) Whether the act of releasing the water from the dam would amount to negligence on the part of the Respondents or it was inevitable due to heavy rains and is to be treated as an 'act of God'? (b) If the answer to the aforesaid question is in the affirmative, whether the Appellants would be entitled to some compensation even in the absence of proof of actual/exact damage caused? 12. We may state at the outset that neither the ....
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....o the trees and plantation of the Appellants is caused due to the release of water from the dam by the Respondents. A specific plea is raised that the Respondents had stored more than the retention capacity of the water in the dam during the month of June 1997 despite knowing fully well that during the ensuing monsoon season there would be more flow of water in the dam. 15. Since the dam is constructed and maintained by the Respondents and the Appellants suffered losses as a result of release of water from the said dam, onus was on the Respondents to prove that they had taken proper care in maintaining appropriate level of water in the dam taking into account the provision for the water that can get accumulated in the said dam due to the forthcoming rainy season. The Respondents are the owners of the dam in question. They are expected to keep the said dam in such a condition which avoids any loss or damage of any nature to the neighbours or passers by. The doctrine of strict liability, which has its origin in the case of Rylands v. Fletcher (1868) LR 3 HL 330, will have application in the instant case. Following observations of Blackburn, J. state the principle of strict liability....
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....he test of time as it is not only followed by the courts in England in subsequent judgments repeatedly, even this Court has adopted in certain cases and extended to cover accidents arising out of use of motor vehicles on road. {See - State of Punjab v. Modern Cultivators AIR 1965 SC 17; Indian Council for Enviro Legal Action v. Union of India (1996) 2 Scale 44; and Kusuma Begum (Smt.) v. The New India Assurance Co. Ltd. JT 2001 (1) SC 37}. 19. In Modern Cultivators' case referred to above, the damage was caused by overflowing of water from a breach in a canal. This Court held that use of land for construction of a canal system is an ordinary use and not a non-natural use. The Court attributed negligence on the part of the authorities and awarded damages to the Plaintiff therein on the said findings of negligence. In this case, thus, the damages were awarded even when the use of land for construction of a canal system was found to be an ordinary use. 20. In Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat (1994) 4 SCC 1, this Court explained the ratio of Modern Cultivators in scholarly manner, as follows: 12. Was the ratio in Rylands v. Fletcher modified by this Court in Mo....
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....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 [LR (1868) 3 HL 330 : 37 LJ Ex 161 : [1861-73] All ER Rep....
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....t 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. Stevenson [(1932) AC 562 : 1932 All ER Rep 1] 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. The Court, thereafter, explained that in order to become a claim as actionable claim, it is necessary to determine that the Defendant was guilty of negligence. 22. There are two exceptions to the aforesaid Rule of strict liability, which were recognized in Rylands v. Fletcher itself, viz.: (a) where it can be shown that the escape was owing to the Plaintiff's default, or (b) the escape was the con....
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....cepted as a defence for the collapse of a culvert, the Defendant must indicate what anticipatory prevention action was taken. We would like to quote the following passage from the said judgment: State Government erected a reservoir adjoining the Plaintiff's land in order to provide drinking water facilities to a village in the State. The State acquired a part of the Plaintiff's land for the purpose of constructing a channel for carrying the overflow of water from the reservoir to a Nalla which was at a distance of about 1500 feet from the waste-weir of the reservoir. This channel was however not constructed except to the extent of 250 feet on the side of the Nalla. Due to very heavy rainfall the water from the reservoir overflowed into the waste-weir and thereafter flowed over the Plaintiff's land, causing considerable damage to the land and the crops standing thereon. In a suit by the Plaintiff for damages they alleged that due to the negligence of the State in not taking proper precautions to guard against the overflow of water they had sustained the loss. The State inter alia contended that the loss was due to heavy rain which was an act of God and therefore they w....
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....foreseen; and that the public purpose was served in taking the decision to release the water which prevented larger catastrophe. Merely by saying that the level of water in the dam increased because of monsoon rains and that the water was released in public interest cannot be treated as discharging the burden on the part of the Respondents in warding off the allegation of negligence. It is a matter of common knowledge that with advanced technology available with the Meteorological Department in the form of satellite signals etc, there is a possibility of precise prediction of the extant of rainfall in the monsoon season. In view of the principle laid down in Rylands v. Fletcher, onus was on the Respondents to discharge such a burden, and it has miserably failed to discharge the same. On that basis, we are constrained to hold that there is a negligence on the part of the Respondents which caused damage to the fields of the Appellants. 29. This brings us to the question of quantum of damages. No doubt, actual/exact proof of damage is not given by the Appellants. At the same time, we find that the trial court had appointed Court Commissioners to verify the position of agricultural la....