TMI Blog1994 (5) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be the appropriate Article or whether the residuary Article 121 applies and that is a substantial question of law. This point has not yet been decided by any decision of the Supreme Court directly on the point and hence is a substantial question of law which is of importance to the petitioner before us as well of general public importance and hence the certificate is granted under Article 133(1)(a) of the Constitution. 3. Although the finding of fact recorded by the High Court that the State was guilty of negligence has become final since the State did not challenge it by way of cross appeal or cross objection yet it appears necessary to give a brief outline of it in order to appreciate the controversy and the legal issues that arise for consideration in this appeal. In 1954 the State of Saurashtra, which now is part of State of Gujarat, made a plan for reclamation of vast area of land from saltish water of sea by erecting a 'reclamation bundh' so as to prevent the sea water flowing in several creeks in the area on the seaside of the bundh from flowing further to the claimed site and making the lands in that area saltish. This bundh was completed in the year 1955. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as non-natural user as, the dam was erected over the land and streams of water. The purpose was to save the lands on the reclamation site from becoming useless. Therefore, the dam in question, was just like, which, an owner of a field would erect, where the boundary of his land is eroded by constant flow and rush of water. After discussing the oral and documentary evidence in detail the learned Judge held that the act of planning and construction of the bundh was done in a negligent manner and the damages caused to the appellant were ascribable to the negligence of the officers concerned in planning and constructing the bundh. The learned Judge set aside the finding of the trial court that the damage suffered by the appellant was due to an act of God. It was specifically held that the appellant proved the negligence on the part of the officers of the then State Government in planning and construction of the bundh as a result of which flood water entered the factory of the appellant on 4th and 5th July, 1956 causing extensive damage. Yet the suit was dismissed as according to the learned Judge the suit could have been filed within 2 years from the date the cause of action arose un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dem Cultivators2? Prior to adverting to these issues it appears appropriate to notice in brief how the High Court grappled with the problem. Mr Justice Sheth who agreed on facts with Mr Justice Desai, was of the opinion that, liability could arise out of malfeasance, misfeasance or nonfeasance or even independently of any one of them. But Article 36 applied if it arose out of any one of them only. He thereafter discussed the rule of strict liability as explained by the English Courts in Rylands v. Fletcher', its modification in Read v. J. Lyons Co. Ltd.3 the vicissitudes it suffered subsequently in Rickards v. John Inglis Lothian4 and Bartlett v. Tottenham5 both on natural and non-natural user of land and artificial collection of goods resulting in injury and various exceptions carved out of it. The learned Judge then discussed the ratio in the State of Punjab v. Modem Cultivators2 and observed that the rule of strict liability as modified by this Court entitled the appellant to successfully claim damages. 5. Mr Justice Desai did not agree with Mr Justice Sheth on applicability of strict liability as erection of dam by the Government on own land to save other land could no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to understand the meaning and scope of torts and the width and ambit of the expression used in Article 36. 'Tort' dictionarily means breach of duty leading to damage . Same meaning attaches to it in law. Salmond has defined 'it as, a, civil wrong for which the remedy is a common law action in unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation. 6. ILR (1886) 11 Bom 133 7. (1913) 17 CWN 308 : 17 CLJ 206 : 18 IC 253 8. AIR 1965 SC 1663: (1965) 3 SCR 293: 35 Comp Cas 604 8. Winfield has defined tortious law arising from breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages. In general, torts consist of some act done without just cause or excuse. The law of 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances in which one may be entitled to sue for damages. And it may be partly one or the other or may be both. In a welfare society construction 9 (1932) AC 562: 1932 All ER Rep 1 10 (1978)AC728:(1977)2 All ER492 of dam or bundh for the sake of community is essential function and use of land or accumulation of water for the benefit of society cannot be non-natural user. But that cannot absolve the State from its duty of being responsible to its citizens for such violations as are actionable and result in damage, loss or injury. What is fundamental is injury and not the manner in which it has been caused. 'Strict liability', 'absolute liability', 'fault liability' and 'neighbour proximity' are all refinements and development of law by English Courts for the benefit 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re. But concept of duty, its reasonableness, the standard of care required cannot be put in strait-jacket. It cannot be rigidly fixed. The right of yesterday is duty of today. The more advanced the society becomes the more sensitive it grows to violation of duties by private or even public functionaries. Law of torts and particularly the branch of negligence is consistently influenced and transformed by social, economic and political development. The rule of strict liability developed by English Courts in Rylands v. Fletcher' was judicial development of the liability in keeping with growth of society and necessity to safeguard the interest of a common man against hazardous activities carried on by others on their own premises even though innocently. By conservative standard it could not be termed as negligence as damage arose not by violation of duty. Yet the law was expanded to achieve the objective of protecting the common man not by narrowing the horizon of legal injury but by widening it. In Donoghue v. Stevenson9 the House of Lords held a duty to take care as a specific tort in itself. Even improper exercise of power by the authorities giving rise to damage has been judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks and applied the principle of 'fault liability' which may even be inferred from circumstances. The view of the High Court, therefore, that the rule of strict liability was modified by this Court in Modern CultivatorS2 does not appear to be correct. 'Absolute liability', or 'strict liability' and 'fault liability' do not go together. 13. With this background it may now be examined if the High Court, even after recording the findings in favour of the appellant, was justified in throwing out the suit because Article 36 is residuary article extending to all kinds of torts. The article as it stood at material time prior to 1963 read as under Description of suit:- 36. For compensation for any malfeasance, misfeasance or non-feasance independent of contract and not herein specially provided for. Period of limitation:-- Two years Time from which period begins to run:- When the malfeasance, misfeasance or non-feasance takes place. 14. In Black's Law Dictionary the meaning of each of these expressions is explained as under: Malfeasance.- Evil doing; ill conduct. The commission of some act which is positively unlawful; the doing of an act w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Calveley v. Chief Constable of the Merseyside Policel3 it was held that for the tort of misfeasance it was necessary that the public officer must have acted maliciously or with bad faith. In Dunlop v. Woollahra Municipal Council14 it was held that without malice the claim for misfeasance could not be accepted. Non-feasance on the other hand is omission to discharge duty. But the omission to give rise to action in torts must be impressed with some characteristic, namely, malice or bad faith. The expressions 'malfeasance', 'misfeasance' and 'nonfeasance' would, therefore, apply in those limited cases where the State or its officers are liable not only for breach of care and duty but it must be activated (sic actuated) with malice or bad faith. The defective planning in construction of a bundh, therefore, may be negligence, mistake, omission but to say that it can only be either malfeasance, misfeasance and nonfeasance is not correct. Observations in Bhayaji6 to the following effect, The words 'malfeasance, misfeasance, or nonfeasance independent of contract' used in Article 36, are of the widest import, and embrace all possible acts or omissions, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olations either as 'ex delicto' or 'ex contractu'. But it was erroneous understanding of the decisions to hold that Article 36 was residuary article and applied to all tortious liabilities. The Court itself had taken care by using the word 'often'. Even in England where the law of torts has been developed demarcations have not been frozen so rigidly as has been attempted to be done by the High Court. Use of expression, not herein specifically provided for in Article 36 was to make it residuary article to such wrongs for which limitation was provided in the article but the interpretation placed by the High Court that it was exhaustive of all torts, was not in conformity with principle of interpretation nor the scheme and purpose of the enactment. This Court in National Bank case8 extracted the English principle to demonstrate that it was residuary provision to distinguish it from contractual obligations but it could not be narrowed down so as to be exhaustive of all torts. As explained earlier damages arising out of strict liability or duty to take care as was in Donoghue v. Stevenson' or public law duty may not be strictly covered ill these expressions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of action or recurring cause of action etc. That is why in some of these items the period begins to run from the time and date of the incident and in others from the date of knowledge. In Article 36 the time begins to run, when the malfeasance, misfeasance or nonfeasance takes place . The word 'when' means at what time. The time according to finding recorded by the High Court was negligence in act of planning and construction of bundh. When did it take place? 'Take' has many shades of meaning. How it should be understood, precisely, in a set of circumstances depends on the context in which it has been used. Literally speaking it can mean when it happens but that would not be consistent with the purpose of its use and may defeat the very objective as malfeasance or nonfeasance arose not on 4th or 5th July but when dam was started in 1955 and in any case when completed in 1956. At that time there could have been no occasion for the appellant to claim any damages. Therefore, time obviously cannot be said to run either from the date the construction of bundh was commenced or it was completed. Therefore, the computation has to be from some other point. For instance, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the damage took place or where claim is lodged within period allowed by law and the damage is ascertained then from the date the claim is rejected. It is the improper performance of duty or arbitrary action of the authorities in not accepting the claim when damage was found by the Official Committee to have taken place. The limitation to file the suit on facts of this case arises from the date the Government refused to pay the amount determined by the Committee. Since the rejection was not communicated nor the copy of the report was supplied despite request the suit could not be said to be barred by time. 18. In the result, this appeal succeeds. The decree and order passed by the two courts below are set aside. The suit of the appellant for ₹ 1,58,735, the amount of damage determined by the trial court which was neither appealed from nor objected to by the respondent is decreed with costs throughout. The respondent shall further pay interest at the rate of 6% per annum from the date of decree till December 1982 and at the rate of 9% per annum from 1982 to December 1992 and at the rate of 12% per annum from January 1993 till the amount is paid. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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