Case: State Of Punjab Vs. Modern Cultivators, Ladwa

1. I agree with the orders proposed by my brother Hidayatullah.2. These appeals arise out of a suit brought by a firm called the Modern Cultivator against the State of Punjab to recover damages for loss suffered by flooding of its lands as a result of a branch in a canal belonging to the State of Punjab. Both the Courts below have held in favour of the plaintiff but the High Court reduced the amount of the damages awarded by the trial Court. Both parties have appealed to this Court. The Modern Cultivators contend that the High Court is in error in reducing the amount of the damages. The State of Punjab contends that it had no liability for the loss caused by the flooding. The breach and the flooding of the plaintiffs lands are not now denied.3. 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.4. 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 defendants 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 I agree. The defendant had produced no documents to show how the breach was caused. I 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 had 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 have been kept to show how the breach occurred and what was done to stop it. If such documents are not produced an inference can be legitimately made that if produced, they would have gone against the case of the defendant, that is they would have proved that the defendant had been negligint cp. Murugesam Pillai v. Gnansambhandha Pandara Sannadhi, 44 Ind App 98 : (AIR 1917 PC 6). It was suggested in this Court that the documents had been destroyed. It may be that they are now destroyed. One of the defendants officers called by the High Court in view of the unsatisfactory nature of the documentary evidence said that documents were destroyed after three to seven years. The breach occurred in August 1947, the suit was filed in October 1948 and the trial was held about August 1949. So it would appear that at the time of the trial the relevant documents had not been destroyed. Nor was it said that they had then been destroyed. Furthermore, in view of the pendency of the suit the documents must have been preserved. It is clear that they had not been produced deliberately. An inference that the defendant was neligent in the management of the canal arises from the non-production of the documents. There is, therefore, evidence that the defendant was neligent.5. Furthermore it seems to me that the rule of res ipsa loqitur applies to this case. The canal was admittedly in the management of the defendant and canal banks art not breached if those in management take proper care. In such cases the rule would apply and the breach itself would be prima facie proof of negligence : see Scott v. London Dock Co.,(1865) 3 H and C 596 (601). No doubt the defendant can show that the breach was due to act of God or to act of a third party or any other thing which would show that it had not been negligent, but it did not do so. It may be that the rule of res ipsa loquitor may not apply where it is known how the thing which caused the damage happened as was held in Barkway v. South Wales Transport Co. Ltd., 1950-1 All ER 392. But that is not the case here. No reason has been advanced why the rule should not apply. Therefore I think that the first contention of the defendant that there is no evidence of negligence must be rejected.6. I do not think it necessary in the present case to consider whether the rule in Rylands v. Fletcher, (1868) 3 HL 330 applies to make the defendant liable for I have already held that it is liable as negligence has been proved.7. 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 applied, 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 Sadaat Ali Khan v. Administrator Corporation of City of Lahore, ILR (1945) 26 Lah 523 : (AIR l945 Lah 324) (FB). 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 15 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 remove any obstruction and close any channels or do any other thing necessary for the application or use of the water to be taken into the canal. This obviously does not impose any duty in connection with the canal bank. Section 15 gives the power to the canal authorities in case of accident happening or being apprehended to a canal to enter upon lands of others and to do all things necessary to repair the accident or prevent it. This section again has nothing to do with taking care of the canal banks. Therefore, even assuming that the defendants interpretation of Art. 2 is correct, this is not a case to which it may apply. I wish however to make it clear that nothing that I have said here is to be read as in any way approving the defendants interpretation of Art. 2. Therefore the defendants contention that the suit was barred by limitation also fails.

Decision:
0[ds]3. 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 trialam 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 I agree. The defendant had produced no documents to show how the breach was caused. I 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 had 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 have been kept to show how the breach occurred and what was done to stop it. If such documents are not produced an inference can be legitimately made that if produced, they would have gone against the case of the defendant, that is they would have proved that the defendant had been negligint cp. Murugesam Pillai v. Gnansambhandha Pandara Sannadhi, 44 Ind App 98 : (AIR 1917 PC 6). It was suggested in this Court that the documents had been destroyed. It may be that they are now destroyed. One of the defendants officers called by the High Court in view of the unsatisfactory nature of the documentary evidence said that documents were destroyed after three to seven years. The breach occurred in August 1947, the suit was filed in October 1948 and the trial was held about August 1949. So it would appear that at the time of the trial the relevant documents had not been destroyed. Nor was it said that they had then been destroyed. Furthermore, in view of the pendency of the suit the documents must have been preserved. It is clear that they had not been produced deliberately. An inference that the defendant was neligent in the management of the canal arises from theof the documents. There is, therefore, evidence that the defendant was neligent.5. Furthermore it seems to me that the rule of res ipsa loqitur applies to this case. The canal was admittedly in the management of the defendant and canal banks art not breached if those in management take proper care. In such cases the rule would apply and the breach itself would be prima facie proof of negligence : see Scott v. London Dock Co.,(1865) 3 H and C 596 (601). No doubt the defendant can show that the breach was due to act of God or to act of a third party or any other thing which would show that it had not been negligent, but it did not do so. It may be that the rule of res ipsa loquitor may not apply where it is known how the thing which caused the damage happened as was held in Barkway v. South Wales Transport Co. Ltd.,All ER 392. But that is not the case here. No reason has been advanced why the rule should not apply. Therefore I think that the first contention of the defendant that there is no evidence of negligence must be rejected.6. I do not think it necessary in the present case to consider whether the rule in Rylands v. Fletcher, (1868) 3 HL 330 applies to make the defendant liable for I have already held that it is liable as negligence has beenis not in dispute that if that article applied, 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 Sadaat Ali Khan v. Administrator Corporation of City of Lahore, ILR (1945) 26 Lah 523 : (AIR l945 Lah 324) (FB). 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 15 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 remove any obstruction and close any channels or do any other thing necessary for the application or use of the water to be taken into the canal. This obviously does not impose any duty in connection with the canal bank. Section 15 gives the power to the canal authorities in case of accident happening or being apprehended to a canal to enter upon lands of others and to do all things necessary to repair the accident or prevent it. This section again has nothing to do with taking care of the canal banks. Therefore, even assuming that the defendants interpretation of Art. 2 is correct, this is not a case to which it may apply. I wish however to make it clear that nothing that I have said here is to be read as in any way approving the defendants interpretation of Art. 2. Therefore the defendants contention that the suit was barred by limitation alsoon behalf of the plaintiff established that water continued pouring out as late as the month of October. This was apparently an exaggeration. There is no evidence to show that the flow of water in the canal was reduced from thewhen the breach occurred. It apparently continued on full supply. The High Court attempted to secure the documents from the Canal Office which had not been produced earlier. The Executive Engineer, then in charge was summoned to bring all the papers in his office and he produced the telegrams received by and copies of telegrams issued from the head office between August 16, 1947 and September 5, 1947. From these documents it is now established that the breach was not repaired at least up to August 27, 1947 and the evidence that it was repaired on the 18th was therefore not accurate. It has also been established that the case of the plaintiff that water continued to flow right up to October was also false. It may thus be assumed that repairs were completed by the 27th August but notis obvious that the crop must have been entirely destroyed and the allowance of 1/4 was because the destroyed crop had some value as chari. On the facts, as found, there was hardly any justification for reducing the amount of the decree for damages passed by the court of first instance. The High Court itself, in more than one place, stated in its judgment that the maize and urud crops were completely destroyed. It is, therefore, clear that unless Government succeeds in its appeal the decree of the court of first instance must be restored in this case. Mr. Vishwanatha Sastri on behalf of Government asked for a remit, but in view of the slight difference and the fact that the High Court itself remarked that the maize and urud crops were completely destroyed there would not be any necessity to order a remit in case the appeal of the Government fails. I shall now turn to thatprinciple which I consider reasonable to apply where fault has to be inferred from circumstances was best stated by Lord Porter and I respectfully adopt it. Speaking of res ipsa loquitur it was observed by Lord Porter inAll ER 392 at pp. 394,doctrine is independent on the absence of explanation, and, although it is the duty of the defendants, if they desire to protect themselves, to give an adequate explanation of the cause of the accident, yet, if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not.I have made these observations so that the principle may not be applied too liberally. It must also be remembered that what is said in relation to it in one case cannot indiscriminately be applied to another case. It should not be applied as legal rule but only as an aid to an inference when it is reasonable to think that there are no further facts tois 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 purpose. It was not an inevitable accident, and the Government must be held liable.In regard to section 6 it is sufficient to say that it has no application here. It refers to the day named in S. 5 and that section provides for a notification to be issued declaring that water would be applied after a particular date for purpose of any existing or projected canal or drainage work or for purposes of Government. On such notification issuing any Canal Officer, acting under the order of the State Government, may enter on any land and remove obstructions or close any channels so that water may be applied to those purposes. This is an entirely different matter and it is no wonder that Mr. Vishwanatha Sastri did not rely upon S. 6.24. Section 15 no doubt confers a power to enter lands and property of others to effect repairs or to prevent accidents. One can hardly dispute that it is the normal duty of canal authorities to make repairs and execute works, to prevent accidents. But Art. 2 cannot apply to omissions in following the statutory duties because it cannot be suggested that they are in pursuance of any enactment. Cases of malfeasance, misfeasance ormay or may not have statutory protection. Act or omission which can claim statutory protection or is alleged to be in pursuance of a statutory command may attract Art. 2 but the act or omission must be one which can be said to be in pursuance of an enactment. Here the suit was for compensation for damages 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 startingto the presence of the words "purporting or professing to be done in pursuance of this Act" and observed that they regarded the words as of pivotal importance and that their presence postulated that work which is not 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". But they were giving protection to an act which could legitimately claim to be in pursuance of the Port Act. Here the break in the bank was not that kind of act or omission. It could not claim to be in pursuance of the Canal Act. Nor could the opening or closing of the channel for silting operations, though in pursuance of the Canal Act, be the relevant act or omission because they were more than a year before the cause of action and to apply a limitation of 96 days to that cause of action is not only impossible but also absurd. Art. 2, therefore, does not apply here.I wish to add nothing with regard to the plaintiffs appeal to what has been said by my brother Hidayatullah nor to what he or my brother Sarkar had 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 exercise of a statutory power. If Art. 2 is out of the way, it is not disputed on behalf of the State that the suit will be within time.The sole ground upon which the liability of the State could be established in this case would be negligence of the State in properly maintaining the banks of the canal. For this purpose it would be relevant to consider whether there were periodical inspections, whether any breaches or the development of cracks were noticed along the banks of the canal and in particular at the place where the breach ultimately occurred or whether any erosion of the banks particularly at place where one of the banks had been plugged had been noticed and no action or timely action had been taken thereon. There is evidence to show that the canals were being regularly inspected. That, however, is not the end of the matter. Immediately after the breach occurred some reports were made and as pointed out by my brethren in their judgments they were not placed before the court despite its order requiring their production. When the matter went up before the High Court it was said that the records had been destroyed in the year 1958 or so and therefore they could not be furnished. This action on the part of the State is manifestly unreasonable and the legitimate inference that could be drawn from it is that if the documents had been produced they would have gone against the State and would establish its negligence. In these circumstances I would hold that though the plaintiffs have been enabled to adduce positive evidence of negligence it could legitimately be presumed that the State was negligence inasmuch as it had deliberately suppressed evidence in its possession which could have established negligence.