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TMI Blog1974 (2) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... Port Trust is necessary. Is the period so brief as six months in terms of s. 87 of the Bombay Port Trust Act, 1879 (hereinafter called the Act), and if so, does time begin to run within around a week of the landing of the goods (suggested by s. 6lA) of the Act ? Or, alternatively, does the longer spell allowed by the Limitation Act avail the plaintiff and the terminus a quo start only when the owner has been finally refused delivery ? Although the Court in this case is enquiring whether the little delay alleged legally disentitles the plaintiff to claim the value of the lost goods, it is a bathetic sidelight that the judicial process has limped along for 15 years to decide in this small, single-point commercial cause, whether a little over seven months to come to court was too late. Pope Paul in opening the judicial year of the Second Roman Rota pontificated that delay in dispensing justice is 'in itself an act of injustice'. Systemic slow motion in this area must claim the nation's immediate attention towards basic reformation of the traditional structure and procedure if the Indian Judicature is to sustain the litigative credibility of the community. Indeed, even ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d into the port, and it is quite on the cards that part of the total consignment had not been discharged into the port, in these any thing-may- happen days of expect the unexpected. Significantly' the first plaintiff inquired of the Indian Maritime Enterprises, the agents of the Japanese vessel, whether the entire consignment of 53 bundles bad been duly landed. The reply received by the first plaintiff is meaningful in that the Indian Maritime Enterprises in there letter dated November 7, 1959, told the first plaintiff that all the 53 bundles had been duly unloaded. It inevitably follows that the earliest date when we can attribute to the plaintiff clear knowledge of the port authorities having come into possession of the missing bundle was November 7, 1959. of course, the inquiry Section of the Alexandra Dock of the defendant indifferently informed the first plaintiff even on December 4, 1959 that the missing bundle was still under search and a definite reply regarding the out-turn of that item could be given only later when loading sheets were fully checked. However, the first plaintiff by letter dated December 5, 1959 wrote to the port authorities that he had been informed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiffs in the High Court when a single Judge upset the finding on limitation and directed disposal of the appeal on the merits. The last lap of the litigation has spurred them to this Court where learned counsel have addressed arguments principally on two facets of the plea of limitation. The primary question is whether the present suit is one 'for any thing done, or purporting to have been done, in pursuance of this Act'. The action is for non-delivery of one out of 53 bundles. plaintiffs' counsel argues that an omission to do cannot be 'an act done or purporting to have been done'. Again, the failure to do what the Act mandates the Port Trust to do, viz., to deliver consignments to owners, cannot be 'in pursuance of this Act'. How can the statute direct non-delivery and how can the Port officials reasonably conceive that not delivering the goods committed to their charge is in pursuance of statutory duty? The perverse verdict would then be reached that violation of a law is fulfilment thereof. Embellished by numerous rulings, Shri Cooper strove to convince us of the substance of the further link in the chain of his case that the cause of action for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after-that is indication of the reasonable limit of time for delivery. Limitation begins to run when the goods should reasonably have been delivered, ignoring operations for tracing the missing goods. The absurd result would otherwise be that the right to sue would flicker fitfully as the search for the last bundle is protracting and the Port Trust can indefinitely put off a claimant's suit by persisting in vain searches for the pilfered article and sending soothing letters that efforts trace are 'in progress.' And more sinister is the possibility of owners of considerable consignments, by oblique methods, getting letters of promise of search despatched by Port officials and thus postpone the time for taking delivery, thereby saving immensely on warehousing charges which are heavy in big cities.Corruption spreads where such legal construction protects. The proponents of both views have cited rulings in support but the sound approach of studying for oneself the sense of s. 87 prompts us to set it out together with other cognate sections, get the hang of the statutory scheme and read the plain meaning of the notice and limitation provisions. "S. 87. No suit or other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivist, facet "like commission, more so when there is a duty not to omit. Again, where a course of conduct is enjoined by a law, the whole process pursuant to that obligation is an act done or purporting to be done under that Act although the components of that comprehensive act may consist of commissions and omissions. A policeman acts or purports to act not only when he uses his lathi but also when he omits to open the lock-up to set the arrested free or omits to produce him before a Magistrate. The ostensible basis of 'the whole conduct colours both doings and defaults and the use of the words' purporting to have been done". in their natural sweep, cover the commission-omission Complex. A, cognate point arises as to whether you can attribute the neglect to comply with a law as something done in pursuance of that law. Here again the fallacy is obvious.If under colour of office. clothed with the rules of authority, a person indulges in conduct not falling under the law he is not acting in accordance with the sanction of the statute or in bona fide execution of authority but ostensibly under the cloak of statute. It is the apparel that oft proclaims the man and whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , C.J., disposed of- the matter tersely : "It is clear that the defendant is charged with a tort committed in the course of his official duty,; he is charged, as surveyor. with the positive act of leaving the gravel on 'the road, where it had been improperly placed, for, an unreasonable time- On that simple ground, I think it clear that he was entitled to notice." Patterson J. considered the same point a little more at length taking the, view "...... that the charge is not one of mere omissions, but of actually continuing the nuisance. That is a charge of doing something wrong, of keeping the gravel in an improper place. an act continued until the concurrence of the mischief. Is it then an act done in pursuance of the statute ? It is-not denied that the heap of gravel was put there in pursuance of the statute-, it could not be spread at the same moment; the question then would arise, whether the length of time during which it was kept in a heap was reasonable or not. The continuing, therefore, was a thing done in pursuance of the statute.' Wightman J. struck a similar note. The learned Judge observed "The defendant is liable only by virtue of his offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant does something, omitting to secure protection for the public. He is not sued for not putting up a light, but for the complex act." Erle J. likewise said ".Here the cause of action is the making the hole, compounded with the not putting up a light. When these are blended, the result is no more than if two positive acts were committed, such as digging the hole and throwing out the dirt; the two would make up one act." Are we not concerned with a blended brew of act and omission, a complex act, a compound act of delivery-cum-non- delivery, pursuant to the statute without which the vinculum juris between the Board and the plaintiff did not exist? Jolliffee v. The Wallasey Local Board((1873) L. R. 62.) is a leading-case, rightly pressed for acceptance of its ratio by the, learned Solicitor General. Kesting, J., after finding for the plaintiff on negligence, focussed attention on the nature of the Act and the need for notice.He observed "As a matter of fact, therefore I come to the conclusion that the defendants were guilty of the negligence complained of, and that negligence was the cause of the accident; and, as matter of law, I hold that negligence to giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do an act is not an act done or intended to be (lone,' Some authorities have been cited on both sides: but we think that, whatever may be the construction which might be put upon the words of the statute if the question arose in this case for the first time, it is now settled by authority that an omission to do something that ought to be done in order to the complete performance of a duty imposed upon a public body under an Act of. Parliament, or the continuing to leave any such duty unperformed, amounts to an act done or intended to be done, within the meaning of these clauses requiring notice of action for the protection of public bodies acting in the discharge of public duties under Acts of Parliament." "It would seem from these authorities that, where the plaintiff is suing in tort, nonfeasance is to be considered as " an act done," within. such clauses as these." Mr. Cooper tried to distinguish Jolliffee's case but having given our close attention to the matter we decline to jettison this weighty judgment. Jolliffee's case was followed by the Privy Council in Queen v. Williams((1884) 9 L. R. 41 8.). The Judicial Committee took the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office." It may be mentioned even here that the Judicial Committee had distinguished Bradford Corporation v. Myers([1916] 1 A. C. 242.) on which considerable reliance was placed by Shri Cooper and also in several decisions which took the opposite point of view. We need make no comments on that decision except to state that for exceedingly excellent reasons the Judicial Committee has put that ruling out of the way. Shri Cooper brought to our notice the circumstance that Public Authorities Protection Act, 1893, brought in 'neglect and default', which became necessary only because "any act done in pursuance.... of any Act of Parliament." would not otherwise comprehend omissions and defaults. We are not impressed with this submission and decline to speculate why a change of language was made if the law packed "omission" into "act". Gill v. The King (supra), just referred to, affirms the careful analysis of the authorities by Varadachariar, J., in Hori Ram Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amrik Singh's case reaches the conclusion : "There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty." The Bench proceeded to set out the following propositions which meet with our approval: (a) I order to apply the bar under sec. 142 of the Calcutta Port Act, it is first to be determined whether the act which is complained of in the suit in question can be said to come within the scope of the official duty of the person or persons who are sought to be made liable. This question can be answered in the affirmative where there is a reasonable connection between the act and the discharge of the official duty. (b) Once the scope of the official duty is determined, sec. 142 will protect the defendants not only from a claim based on breach of the duty but also from a claim based upon an omission to perform such duty. (c) The protection of sec. 142 cannot be held to be confined to acts done in the exercise of a statutory power but also extends to acts don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing done or purporting to be done in pursuance of this Act. Under the Madras General Clauses Act, 1891 words which refer to. the acts done extend also to illegal omissions." Natesan, J., relied on Calcutta Port Commissioner v. Corporation of Calcutta(A. I. R. 1937 P. C. 306.), where the Judicial Committee had stressed the ampler sense of 'purporting or professing to act in pursuance of the statute' and observed "Their Lordships regard these words as of pivotal importance. Their presence in the statute appears to postulate that work which it hot done in pursuance, of the statute may nevertheless be accorded its protection, if the work professes or purports to be done in pursuance of the statute." The whole issue is clinched in our view by the final pronouncement of this Court in Public Prosecutor Madras ;v.- R. Raju(A. I. R. 1972 S. C. 2504). the, interpretation of s.40(2) of the Central Excis' and Salt Act, 1944 and the antithesis argued between 'act' and 'omission' provoked a panoramic survey of the Indian statute book. Reference was made to Pritam Singh's ([1971] 1 S.C.C 653.) case where absence from duty at the time of the roll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ursuant to or under the statute. An exhaustive consideration of these twin propositions is found in Zila Parishad v. Shanti Devi([1969] 1 S. C. R. 430.). Seemingly substantial support for Shri Cooper's contention is derived from observations in State-of Gujarat v. Kansara Manilal Bhikhala([1965] 1 I. L. R. All. 783), where, rejecting a plea of protection under S. 117 of the Factories Act, 1948, by an occupier of a factory who had violated the duties cast on him, Hidayatullah, J. (as he then was) observed "But the critical words are "any thing done or intended to he done" under the Act. The protection conferred can only be claimed by a person who can plead that he was required to do or omit to do something under the Act or that he intended to comply with any of its provisions, It cannot confer immunity in respect of actions which are not done under the Act but are done contrary to it. Even assuming that an act includes an omission as stated in the General Clauses Act, the omission also must be one which is enjoined by the Act. It is not sufficient to say that the act was honest. That would bring it only within the words "good faith". It is necessary fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Bombay Land Improvement Schemes Act. It cannot be said that the acts of the accused- appellants in preparing false documents and in committing criminal breach of trust in respect of the amount of ₹ 309.07 as also their act of criminal misconduct were done under the Bombay Land Improvement Schemes Act. Sub section (2) of section 23 deals with anything done or intended to be done under. the above mentioned Act by a public servant or a person duly authorised under the Act. It has no application where something is done not under the Act even though it has been done by a public servant who has been entrusted with duties of carrying out improvement schemes under the above mentioned Act. The impugned acts of the appellants in the present case were not in discharge of their duties under the above mentioned Act but in obvious breach and flagrant disregard of their duties. Not only they did no rectification work for the Bundh which was a part of the improvement scheme, they also misappropriated the amount which had been entrusted to them for the purpose of rectification." How slippery and specious law and logic can be unless the Court is vigilant is evident from this ki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em within one month of the Board coming into custody, special powers of disposal by public auction are given by S. 64A. The Act charges, the Port authorities with a wealth of functions and duties and necessarily legal proceedings follow upon the defects, defaults and other consequences of abuse of power. Even so, a public body undertaking work of the sort which a Port carries out will be exposed to an explosive amount of litigation and the Board as well as its officers will be burdened by suits, and prosecutions on top of the pressure of handling goods worth crores daily. Public bodies and officers will suffer irremediably in such vulnerable circumstances unless actions are brought when evidence is fresh and before delinquency fades; and so it makes sense to provide, as in many other cases of public institutions and servants, a reasonably short period of time within which the legal proceedings should be started. This is nothing unusual in the jurisprudence of India or England and is constitutionally sound. Section 87 is illumined by the protective purpose which will be ill-served if the shield of a short limitation operates in cases of misfeasance and malfeasance but not nonfeasanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e taken is attested by pronouncements of vigorous judges twice three score and ten years ago, in words which 'age cannot wither nor custom stale'. Law is a practical instrument, a working tool in a workaday world and where, as here, the effected fraction of the community is the common official. the commercial man and ordinary folk, the wiser rule of construction follows commonsense, not casuistry, context, not strictness and not subtle nuance but plain sense. The logical conclusion of the legal study is that the short delivery of one bundle or rather the act of under-delivery in purported discharge of the bailee's obligation under S. 61B of the Act is covered by s. 87 and the truncated limitation prescribed thereunder will apply. Of course, the statutory notice under S. 83 is a condition precedent to, although not a constituent of, the cause of action And there is some authority for the position that the period of one month may also be tacked on under s. 15(2) of the Limitation Act. In the view we take on the ultimate issue this question is immaterial. Even so, the decisive date on which the decree turns and time runs has to be settled. if the Limitation Act applies, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings it into play. Even so, when does the time for which the goods are bailed expire ? The answer is, according to the Solicitor General, when the week after landing of the goods expires if s. 61A(2) betokens anything on this point. He urges that when the bulk of a consignment is delivered by the bailee the time for delivery of the short-delivered part must be reasonably held to have come. Finally, he submits that the time consumed by search for the landedgoods cannot be added for fixing the terminus a quo of limitation. Assuming for arguments sake all these in favour of the appellant, one critical issue claims precedence over them. When does the statutory bailment take place and can the time for delivery to the owner of the goods arise before he knows or at least has good grounds to know that the bailment has in law come into being ? The owner must ordinarily take delivery in a week's time after landing since thereafter the Board will cease to be liable for loss, etc., save, of course, when the latter defaults in giving delivery as for instance the goods are irremovably located or, physical obstruction to removal is offered by striking workers or natural calamities. Here the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategories of damage. Cause of suit being destruction or deterioration while the goods are in the custody of the bailee it is correct to read as this Court did in a different situation under the Land Acquisition Act in Harish Chandra v. Deputy Land Acquisition Officer(A.I.R. 1961 S.C. 1500.), knowledge of the damage by the affected party as an essential requirement of fair play and natural justice. The error stems from visualising loss as the 'cause' of suit. The bailee is bound to return, deliver or tender. If he defaults in this duty the ,cause' of action arises. While destruction or deterioration may need inspection by the owner, it may be proper to import scienter as integral to the 'cause' or grievance. But loss flows from sheer non- delivery, with nothing super-added. _Loss is the direct result. viewed through the owner's eyes, of non-return, non- delivery or non-tender by the bailee-the act/omission which completes the 'cause, (vide ;. 161 Contract Act). What is complained of is the nondelivery, the resultant damage being the loss of goods. We must keel)' the breach of duty which is the cause distinct from the loss which is the conse- quence. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is instituted" : Bala v. Koklan((1930) L.R. 57 I.A. 325.). Counsel for the appellants admitted that he was unable to specify any date at which the claim to an account here in suit was denied by the appellants. Accord- ingly this contention fails." The reference to Sir Binod Mitter's observations relates. to the ruling in Bala v. Koklan. The proposition is impeccable but is inapplicable if it is urged that the knowledge of the loss marks the relevant date. On the other hand, if the right to sue or the accrual of the cause of action is based on the infringement by non-delivery the knowledge must be the knowledge of the factum of bailment which takes place on the unloading from the vessel and the taking charge by the Board. That is to say, it is preposterous to postulate the running of limitation from a date anterior to when the plaintiff has come to know that his missing goods have been landed on the port. Mohammad Yunus v. Syed Unnisa(A.I.R. 1961 S.C. 808.) is authority for the rule that there can be no right to sue (under art. 120) until there is an accrual of the right asserted-which as we have shown, involves awareness of the bailment. It meets with reason and j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the final refusal of the carrier to deliver." "With respect, it is rather difficult to understand how the subsequent correspondence between the railway and the consignor or the consignee can make any difference to the starting point of limitation, when that correspondence only showed that the railway was trying to trace the goods. The period that might be taken in tracing the goods can have no relevance in determining the reasonable time that is required for the, carriage of the, goods from the place of despatch to the place of destinations." The ratio is twofold, viz. (1) not when the final refusal to deliver but when the reasonable time for delivery has elapsed does limitation start; (2) correspondence stating that efforts are being made to trace the goods cannot postpone the triggering of limitation. Of course, 'reasonable' time is a relative factor and representation by the Railway inducing the plaintiff not to sue may amount to estoppel or waiver in special circumstances. We are inclined to confine, Bootamal to the specific words of art. 39. The discussion discloses the influence of the words in columns 1 and 3 on the conclusion, rendering it risk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ender takes place. That event is fixed with reference to reasonable lapse of time after the unloading of the goods. Thus, if the search is to find out whether the goods have landed at all, it is integral and anterior, to the 'cause'; but if it be to trace what has definitely been discharged into the port it is de-linked from the, 'cause'a la Bootamal. Such an approach reduces the variables and stops the evils of fluctuation of limitation. It is easy to fix when the vessel has discharged the goods into the port by, looking into the tally sheet or other relevant documents prescribed in the bye-laws. This part of the tracing cannot take long although it is regrettable and negligent for the Bombay Port officials to have taken undue time to give the plaintiffs even this information. On the contrary, search for the missing but landed goods in the warehouses and sheds and open spaces can be a wild goose chase honestly or as long as the consignee or port officials with dishonestly. Reasonable diligence will readily give the consignee information of landing, of his goods. In the major port cities warehousing facilities are expensive and difficult to procure so that a consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate that the missing packages are not available (Shedmaster's certificate 'C') is issued. While it is correct to say that alleged attempts by the Port officials to locate the goods which have definitely landed has no bearing on the "cause", it is equally incorrect to hold that till the certificate that the non-delivered package is not forthcoming limitation does not begin. The true test, as we have earlier pointed out, is to find out when delivery should have been made in the normal course, subject to the fact of discharge from the ship to the port of the relevant goods and the knowledge about that fact by the consignee. In Union of India v. Jutharam(A.I.R. 1968 Pat. 35.) a single Judge of that High Court took the view that when part of the goods sent in one consignment was not delivered it is right to hold that it should have reasonably been delivered on the same day the delivery of the other part took place. The date of delivery of part of the consignment must be deemed to be the starting point of limitation. This approach has our broad approval. In Union of India v. Vithalsa Kisansa & Co.( A.I.R. 1968 Pat. 35.) a single Judge of Bombay High Court, while em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... functions of the Board and its officers, attracts limitation under s. 87. Judged by these working rules, the present case has to be decided against the plaintiffs. For one thing, the short delivery of one bundle of steel plates is an integral part of the delivery of the consignment by the port authorities to the consignee in the discharge of their official functions as statutory bailee. Section 87 of the Act, therefore, applies. The delivery of the bulk of the consignment took place on September 19, 1959 and more than seven months had passed after that before the institution of the suit. Of course, a later date, namely, November 7, 1959 (Ext. 'A') clearly brings to the ken of the plaintiff the fact that the missing bundle has been duly landed in the port. It is true that the enquiry section of the Bombay Port Trust Docks did not even, as late as December 4, 1959, give a definite reply about the "outturn" for this item. On December 5, 1959, the first plaintiff brought to the notice of the Board "that the above mentioned bundle has been landed and they (agents of the vessel) hold receipt from you (the Board)". The plaintiffs made an enquiry "Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police stations inside the ports; it must ensure diligent action by the officials, and if there is delinquency or default in discharging their duties promptly and smartly, disciplinary action should be taken against those concerned. In this country our major harbours are acquiring a different reputation for harbouring smugglers :and pilferers and an impression has gained currency that port officials ,connive at these operations for consideration. Every case is an event and an index, projects a conflict of rights between two entities but has a social facet, being the symptom of a social legion. We consider that the Government and the public must be alerted about the unsatisfactory functioning of the ports so 'that delinquent officials may be proceeded against for dubious default in the discharge of their duties. It is not enough that diligence is shown in pleading limitation when honest citizens aggrieved by- loss' of their goods entrusted to public bodies come to court. The responsibility of these institutions to do their utmost to prevent pilferage is implied in the legislative policy of prescribing a short period of' limitation. Another important circumstance we wish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be of general application. Here is a small claim which is usually associated with the little man and when, as in this test action, the litigation escalates to the final court wafted by a legal nicety, his financial back is broken in a bona-fide endeavour to secure a declara- tion of the law that binds all courts in the country for the obvious benefit of the whole community. The fact that the case has gained special leave under art. 136 is prima facie proof of the general public importance of the legal issue. The course of this litigation proves that the fine but decisive point of law enmeshed in a conflict of precedents found each court reversing the one next below it, almost hopefully appetising the losing party to appeal to the higher forum. The real beneficiary is the business community which now knows finally the norm of limitation they must obey. Is it fair in these circumstances that one party, albeit the vanquished one, should bear the burden of costs throughout for providing the occasion--not provocation-for laying down the correct law in a controversial situation. Faced with, a similar moral-legal issue, Lord Reid observed : "I think we must consider separately co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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