TMI Blog2016 (5) TMI 1572X X X X Extracts X X X X X X X X Extracts X X X X ..... th the agency of man or other cause will come under the category of acts of God. Examples are: storm, tempest, lightning, extraordinary fall of rain, extraordinary high tide, extraordinary severe frost, or a tidal bore which sweeps a ship in mid-water. What is important here is that it is not necessary that it should be unique or that it should happen for the first time. It is enough that it is extraordinary and such as could not reasonably be anticipated. What needs to be examined is as to whether the damage to the property of the Appellant herein was the result of an inevitable accident or unavoidable accident which could not possibly be prevented by the exercise of ordinary care, caution and skill, i.e. it was an accident physically unavoidable? - HELD THAT:- Undoubtedly, it has come on record that the overflow of dam was occasioned by torrential and heavy rains. However, as pointed out above, the Appellants specifically pleaded that the Respondent authorities did not keep the level of water in the dam sufficiently low to take care of the ensuing monsoon rains. They have, thus, set up the case that there was a negligence on the part of the Respondents in not taking care of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellants by formulating the following substantial question of law; though the same is not appropriately framed: Whether gross negligence in not maintaining particular level of water in the dam by the Respondents; that has resulted into damage and destruction to the plantation of the Appellants, causing loss of livelihood, could be said to be an 'Act of God'? 2. It so happened that the Respondents had constructed and maintained a dam. 60,000 cusecs of water from this dam was released, which flooded the land of the Appellants and destroyed the plantation therein. As per the Respondents, the water had to be released from the dam as it reached alarming 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioners, known as panchas, who visited the site, submitted their report for inspection confirming the submergence of the agricultural fields of the Appellants. They also reported that due to this submergence, the trees of the Appellants grown on the said land were uprooted and were lying amidst the mud and sand brought by the river water. In this report, they also mentioned that as many as 1500 boar trees were uprooted and washed away due to the said floods. Several photographs were also annexed with the report in respect of the aforesaid inspection carried out by the Court Commissioners. 7. Respondents contested the suit inter alia on the ground that the place where the said 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants had examined one witness, he had given only oral testimony without any documentary support. The trial court also concluded that the Appellants could not prove that they had suffered damage and loss due to the negligence on the part of the Respondents. On the basis of the aforesaid findings, the suit of the Appellants was dismissed. The Appellants preferred an appeal against the said judgment, which has also been dismissed by the High Court vide judgment dated June 27, 2011, which is impugned in the instant appeal. 10. A perusal of the judgment in appeal would reflect that since the water had to be released from the dam, as a result of excessive rain, in order to see that less damage 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 res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble care in this behalf by keeping the level of water in the dam sufficiently low in order to meet the exigency of ensuing monsoon? This would have depended upon another factor, namely, whether the rains in the said season were much more than normal and beyond the expected level or it was known before hand, as per the prediction of the Meteorological Department that there would be heavy rains? It is only on that basis one can find out as to whether there was negligence on the part of the Respondents in keeping the particular level of water in the dam by not taking into consideration the possible flow of the water as a result of expected rains. 14. The admitted facts on record are that the damage to 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cil in Rickards v. Lothian (1913) AC 263, as is clear from the following formulation: It is not every use to which land is put that brings into play this principle. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community. 17. In Read v. J. Lyons and Co. (1947) AC 156 (HL), another qualification to the aforesaid Rule was added, namely, the non-natural use by the offending party should result in 'escape' of the thing from his land which causes damage and so in the absence of 'escape', the Rule has no application. 18. The aforesaid principle has withstood the 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' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the bundh. On that premise, damages were awarded. The Court explained the jurisprudence of liability in torts and also the two principles, namely, 'strict liability' and 'fault liability', in paragraph 8 and thereafter enumerated other circumstances which may fall in-between 'strict liability' and 'fault liability', in paragraph 9. We would like to quote hereinbelow these two paragraphs for our benefit: 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces 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 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 v. Stevenson [(1932) AC 562 : 1932 All ER Rep 1] where a manufacturer was h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constructing a concrete paddling pool for children. Due to a rainfall of extraordinary violence, a great volume of water which would normally have been carried off by the stream overflowed the pad and caused damage to Plaintiff's property. The House of Lords held that the rainfall was not an act of God and the Corporation was liable to pay damages as it was its duty 'so to work as to make proprietors or occupiers on a lower level as secure against injury as they would have been had nature not been interfered with . 25. Such a situation came up before this Court as well in S. Vedantacharya and Anr. v. Highways Department of South Arcot and Ors. (1987) 3 SCC 400. In this case, this Court held that before heavy rain can be accepted 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rthcoming monsoon season and keeping the water level in the dam at sufficiently low level to absorb the rainfall which was going to rise the water level in the dam. 28. The Respondents have not refuted the aforesaid averment of the Appellants. The only defence put up by them was that the overflow of the water in the dam was occasioned by the rains in the monsoon season which compelled the authorities to release the water from the dam in larger public interest. In such a scenario, it was incumbent upon the Respondents to demonstrate, by adequate evidence, that the water in the dam was kept at reasonable and proper level to take care of normal rains; the rains in the said monsoon season were more than the ordinary rains which could not be 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 technolog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apportioned to compensate only the injury that can be attributed to the negligent act of the Respondents {See Workman v. G.N. Ry. Co. (1863) 32 LJQB 279}. 30. The Appellants claimed damages to the tune of ₹ 21,50,000, for which no specific proof/evidence is given. At the same time, we find that one Mohemmed Ikbal Mohemmedalam Galivala, who is an agriculturist, had appeared as the Plaintiffs' witness and deposed that he was having the agriculture experience for the last 20 years, particularly experience of cultivation of boar as well as its profit and income. He has given figures of losses which the Appellants had to suffer due to damage of plantation and loss of income, etc. thereby trying to justify the claim of damages made by the Appellants, but those figures are not supported by any evidence. However, it is not in dispute that loss has occurred and, therefore, a reasonable compensation can still be awarded. Exercising our power under Article 142 of the Constitution, we are of the opinion that ends of justice would be met in awarding damages to the tune of ₹ 5,00,000. We have arrived at the above figure keeping in view the statement of Mohemmed Ikbal Mohemmed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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