# RAJKOT MUNICIPAL CORPORATION v. MANJULBEN JAY ANTILAL NAKUM AND ORS - **Citation:** [1997] 1 S.C.R. 304 - **Court:** Supreme Court of India - **Decided:** 1997-01-17 - **Case number:** Civil Appeal No. 200 of 1997 - **Bench:** K. Ramaswamy, G.B. Paitanaik - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajkot-municipal-corporation-v-manjulben-jay-antilal-nakum-and-ors-15209 - **Pages:** 61 ## Headnote Torts: Negligence-Breach of duty-Carelessljr-By Public AuthorityC Damages fo~iability-Arising of-Factors to be considered-Deceased while walking on footpath of a public road was struck by a roadside tree, which suddenly fell on him in still weather condition resulting in his death-Suit ftled by deceased's wife and children claiming damages from Municipal Corporation on ground of negligence in not properly maintaining roadside trees-Held: Proximity of relationship between person who suffered D damages and the wrong doer, foreseeability of danger and duty of care owed by public authority must be established--Burden of proof on plaintiff-Plain· tiff could not succeed by merely establishing occwrence of accident due to negligence i.e. ~efendant's failure to take reasonable care as ordinal)' prudent matt-Foreseeability of damage or danger to person or property must be E ~a-related to public duty of care-Duty of care should be to avoid causing of present or imminent danger created by positive act of public authority-Harm complained of must be of the kind contemplated by statute-Action for damages would not lie if statute did not intend to guard the kind of damage suffered or if some other remedy was available or provided by statute-in the circumstances of the case, Corporation not liable for damages-Proximity of F relationship and foreseeability of danger not fountl-Corporation could not be expected to have a duty to maintain constant supervision by testing the healthy condition of the tree.~Special circumstances to be taken into account stated-Bombay Provincial Municipal Corporation Act, 1949. G Negligence-StatutOTy Corporation or public authority-Municipal Corporation-Principle of law of negligence-Applicability of-Held: Situations different when act was one of commission and one of omission-Act would 110t be negligent, if it was done in good faith in the exercise of, and within the limits of, the discretion. H Negligence-Before the repository of statutory power could be made 304 RAJKOT MUNICIPAL CORPN. v. MANJULBEN JAY ANTILAL 305 ·· ~ ..., liable for negligence for a failure to exercise it, the statute must impose a A statutory duty and confer a private right of action in damages for breach thereof-But common law duty must not be superimposed through process of statutory interpretation-Duty of care when arose, discusse~ereseeability as test-Imminent danger theory-The duty of care should not'impose an intolerable burden on the public authority and prevent it from peifomting its B ,... nonnal duties. ,. ~ Negligence--Misfeasance and non-feasance-Distinction be!ween-Explained. Damages-Tortious liability-Held: In absence of statutory law in this c regard, common law principles evolved in Engla11d might be applied in India to the extent of suitability and applicability to Indian conditions. Statutory Corporation~unicipal Corporation-Held; could be held liable and be sued for wrongs involving fraud, malice as well as for wrong in which intention was immaterial. D · "r Tort and contract-Distinction betweert-Explained. Interpretation of Statutes: Legislative intent-Detennination oj-:£xplained. E Wordf and Phrases: "Misfeasance and non-feasance'~ "Negligence" and "duty''-Meaning oHn tlte context of Law of Torts. Legal Maxims : "volenti non fit injuria" and "novus actus interveniens' -Applicability of F The deceased was· walking on footpath of a public r oad on the way to his office, when a roadside tree, which was in a still cundition, had suddenly fallen on him, as a result of which he sustained injuries on his head and other parts of the body and later died in the hospital. The G respondents, being the deceased's widow. and children, ftl ed a suit for damages in a sum of Rs.llakh from the appellant-Corporation. The trial --":" ..... Court decreed the suit for a sum of Rs.45,000 finding that the appellant had failed in its statutory duty to check the healthy condition of trees and to protect the deceased from the tree falling on him re ## Text _Characters 0–39,928 of 164,806. This is a partial read: ask again with offset=39928 for what follows._ A RAJKOT MUNICIPAL CORPORATION v. MANJULBEN JAY ANTILAL NAKUM AND ORS. JANUARY 17, 1997 B [K. RAMASWAMY.AND G.B. PAITANAIK, JJ.) Torts: Negligence-Breach of duty-Carelessljr-By Public AuthorityC Damages fo~iability-Arising of-Factors to be considered-Deceased while walking on footpath of a public road was struck by a roadside tree, which suddenly fell on him in still weather condition resulting in his death-Suit ftled by deceased's wife and children claiming damages from Municipal Corporation on ground of negligence in not properly maintaining roadside trees-Held: Proximity of relationship between person who suffered D damages and the wrong doer, foreseeability of danger and duty of care owed by public authority must be established--Burden of proof on plaintiff-Plain· tiff could not succeed by merely establishing occwrence of accident due to negligence i.e. ~efendant's failure to take reasonable care as ordinal)' prudent matt-Foreseeability of damage or danger to person or property must be E ~a-related to public duty of care-Duty of care should be to avoid causing of present or imminent danger created by positive act of public authority-Harm complained of must be of the kind contemplated by statute-Action for damages would not lie if statute did not intend to guard the kind of damage suffered or if some other remedy was available or provided by statute-in the circumstances of the case, Corporation not liable for damages-Proximity of F relationship and foreseeability of danger not fountl-Corporation could not be expected to have a duty to maintain constant supervision by testing the healthy condition of the tree.~Special circumstances to be taken into account stated-Bombay Provincial Municipal Corporation Act, 1949. G Negligence-StatutOTy Corporation or public authority-Municipal Corporation-Principle of law of negligence-Applicability of-Held: Situations different when act was one of commission and one of omission-Act would 110t be negligent, if it was done in good faith in the exercise of, and within the limits of, the discretion. H Negligence-Before the repository of statutory power could be made 304 RAJKOT MUNICIPAL CORPN. v. MANJULBEN JAY ANTILAL 305 ·· ~ ..., liable for negligence for a failure to exercise it, the statute must impose a A statutory duty and confer a private right of action in damages for breach thereof-But common law duty must not be superimposed through process of statutory interpretation-Duty of care when arose, discusse~ereseeability as test-Imminent danger theory-The duty of care should not'impose an intolerable burden on the public authority and prevent it from peifomting its B ,... nonnal duties. ,. ~ Negligence--Misfeasance and non-feasance-Distinction be!ween-Explained. Damages-Tortious liability-Held: In absence of statutory law in this c regard, common law principles evolved in Engla11d might be applied in India to the extent of suitability and applicability to Indian conditions. Statutory Corporation~unicipal Corporation-Held; could be held liable and be sued for wrongs involving fraud, malice as well as for wrong in which intention was immaterial. D · "r Tort and contract-Distinction betweert-Explained. Interpretation of Statutes: Legislative intent-Detennination oj-:£xplained. E Wordf and Phrases: "Misfeasance and non-feasance'~ "Negligence" and "duty''-Meaning oHn tlte context of Law of Torts. Legal Maxims : "volenti non fit injuria" and "novus actus interveniens' -Applicability of F The deceased was· walking on footpath of a public r oad on the way to his office, when a roadside tree, which was in a still cundition, had suddenly fallen on him, as a result of which he sustained injuries on his head and other parts of the body and later died in the hospital. The G respondents, being the deceased's widow. and children, ftl ed a suit for damages in a sum of Rs.llakh from the appellant-Corporation. The trial --":" ..... Court decreed the suit for a sum of Rs.45,000 finding that the appellant had failed in its statutory duty to check the healthy condition of trees and to protect the deceased from the tree falling on him resulting in his death: On appeal, the Division Bench had held that the appellant had statutory H 306 SUPREME COURT REPORTS [1997] 1 S.C.R. A duty to plant trees on the roadsides as also the corresponding duty to maintain the trees in proper condition. The statutory duty gave rise to tortious liability on the State and as its agent, the appellant-Corporation .being a statutory authority was guilty of negligence on its part in not taking care to protect the life of the deceased. The respondents 'could not be called , B upon to prove that the tree had fallen due to the appellant's negligence. Statutory obligation to maintain trees being absolute, and since the tree had fallen due to its decay, the appellant had failed to prove that the occurrence had taken place without negligence on its part. The appellant failed to make periodical inspection whether the trees were in good and healthy condition subjecting them to seasonal and periodical treatment C and examination. Therefore, the appellant had not taken care to foresee the risk of the tree's faJiing and causing damage to the passers-by. Thus the appellant was liable to pay damages for the death of tbe deceased. The Divisi~n Bench accordingly confirmed the decree of the trial Court. Hence this appeal. D Allowing the appeal, this Court HELD: 1.1. Negligence is failure to use such care as a reasonable, prudent and careful person would use, under similar circumstances. It is E the doing of-some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances. Negligence also is an omission to do something which a reasonable man; guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something, which a reasonable and prudent man F would not do. Negligence would include both acts and omissions involving unreasonable risk of having done harm to another. The breach of duty must cause damage. How much of the damage to be compensated by the defen· dant should be attributed to; his wilful conduct and how much to his wilful negligence or careless conduct or remissness in performance of duty, are G all relevant facts to be considered in a given act or omission in adjudging duty of care. The element of carelessness or the breach of duty and whether that duty is towards the plain tilT or class of persons to which the plaintiff belongs are important components in tort of negligence. Negligence would, tlterefore, mean careless conduct in commission or omission of an act, H whereby another to whom the plaintiff owed duty of care has suffered RAJKOTMUNTCIPALCORPN.v. MANJULBENJAYANTILAL 307 "'Y damage. The duty of care is crucial in understanding the nature and scope A of tort of negligence. [326E-F; 328-E-F; 327-C-D] Black's Law Dictionary (6 th. Edn.), p. 1489, referred to. 1.2. Negligence connotes inadvertence to the consequences of his conduct which can be a measure of behaviour where one person had been B careless in that he did not behave as a prudent man would have done ~ ) whether by advertance or othenvise. The tort of negligence always requires some form of careless conduct which is usually, although not necessarily, the product of inadvertenc~. Not every careless conduct which causes damage, however, will give rise to an action in tort. The negligence lies in c failure to take such steps as a reasonable prudent man would have taken in the given circumstances. ~at constitute carelessness are the conduct and not the result of inadvertence. Thus negligence in this sense is a ground for liability in tort. [329-E-G] 1.3. Th~ defendant must be under duty of care not to create latent D ..,. course of physical danger/damage to the person or property of third party ; ... whom he ought to have reasonably foreseen as likely to be affected thereby. Those latent defects cause physical danger to the person or the property giving cause of action and the defendant then is liable to pay damage for tortious liability. It must, therefore, be the essential element to establish E that there is positive act or duty and the defendant is under that duty. The Court is not to create, by process of interpretation, latent source of physical danger to the person or property of third party when the Act does not envisage that the defendant ought to have reasonably foreseen hi_m as ~ likely to be affected thereby. [327-G-H; 328-A) F 1.4. In every cas~ giving rise to tortious liability, tort consists of in.jury and damage due to negligence. Claim for injury and damage may be founded on breach of contract or tort. The liability in tort may be strict liability, absolute liability or special liability. The degree of liability depends on degree of mental element. The elements of tort of ~egligence G consist in • (a) duty of care; (b) duty is owed to the plaintiff; (c) the duty has been carelessly breached. Negligence does not entail liability unless the -J law exacts a duty in the given circumstances to observe care. Duty is an obligation recognised by law to avoid conduct fraugbt with unreasonable risk or damage to others. The question whet"er duty exists in a par-ticular situation involves determination of law. [326-H; 327-A; 328-C-D] H 308 SUPREME COURT REPORTS [1997] 1 S.C.R. A 1.5. The Court requires to examine the scope of duty of care, which the local authority owes to the plaintiff. The Court is rec1uired to cons~r the object, scope and breach of the Act, viz. the Bombay Provincial Municipal Corporation Act, 1949. Though the statute Is of general character, since the Government or local authority is entrusted with the duty B to implement the law, though at its discretion, and if damage is done in execution thereof, what requires to be examined is whether the aforestated elements of tort of negligence stand attracted. The Court is further re· quired to consider whether extension of duty of care by the process of Interpretation would elongate the public policy or retard its object or frustrate public policy b~hind the statute and the inevitable effect thereof C on the affected plaintiff as well as the general public. No general principle. of law is desirable to be laid down as an acid test. [329-A-C] Donoghue v. Stevenson, (1932) AC 562, referred to. D 2.1. While considering whether an action would lie for breach of statutory duty, what requires to be established, among other things, is that the harm complained of is of the kind contemplated by the statute. The question emerges: as to when would the breach of statutory duty under a particular enactment give rise to tortious liability? The statutory negligence is sui generis and independent of any other form of tortious E liability. It would, therefore, be of necessity to find out from the construe· tion of each statutory duty whether the particular duty is general duty in public Jaw or private law duty towards the plaintiff. The plaintiff must show that (a) the injury suffer·ed is within the ambit of statute: (b) statutory duty imposes a liability for civil action: (c) the statutory duty was F not fulfilled: and (d) the breach of duty lias caused him injury. These essentials are required to be considered in each case. The action for breach of statutory duty may belong to the category of either strict or absolute liability which is required, therefore, to be considered ·in the nature of statutory duty the defendant owes to the plaintiff; whether or not the duty G is absolute; and the public policy underlying the duty. In most cases, the statute may not give rise to cause of action unless it is breached and it has caused damage to the plaintiff, though occasionally the statute may make breach of duty actionable per se. The burden, therefore, is on the plaintiff to prove on balance of probabilities that the defendant owes that duty of care to the plaintiff or class of persons to whom he belongs, that defendant H was negligent in the performance or omission of that duty and breach of ' • ) RAJKOTMUNICIPALCORPN.v. MANJULBENJAYANTILAL 309 duty caused or materially contributed to his injury and that duty of care A is owed on the defendant. If the statute requires certain protection on the principle of volenti non fit injuria, the liability stands excluded. The breach of duty created by a statute, if it results in damage in an individual_prima facie, is tort for which the action for damage will lie in the suit. One would often take the Act, as a whole, to find out the object of the law and to find B out whether one has right and remedy provided for breach of duty. It wol!ld, therefore, be of necessity in every case to find the intention of legislature in creating duty and the resultant cons~quences suffered from the action or omission thereof, which are required to be considered. No action for damages lies if on proper construction of statute, the intention is that some other remedy is avdilable. One of the tests in determining the intention of C the statute is to ascertain whether the duty is owed primarily to tbe general public or community and only incidentally to an individual or primarily to the individual or class of individuals and only incidentally to the general public or the community. If the statute aims at duty to protect a particular citiuD or particular class of citizens to which the plaintiff belongs, it prima D facie creates at the same time co-relative right vested in those citizens of which plaintiff is one; he has remedy for enforcement, namely, the action for damages for any loss occasioned due to negligence or for failure of it. But this test is not always conclusive. [329-C-D; 330-B-R; 331-A-B] Gonis v. State, (1874) LR 9 Ex. 125 and Kinlgollon v. W.Cooke & Co. E Ltd., (1956) WLR 527, referred to. 2.2. Duty may be of such paramount importance that it is owed in all the public. It would be wrong to think that on an action, the duty could be enforced by way of damages when duty is owed in a section or public F and cannot be enforced if an individual sustains damages to whom the Corporation owes no duty and no private interest Is infringed. Breach of statutory duty, therefore, requires to be examined in the context in which the duty is created not towards the individual, but has its effect on the right of individual vis-a-vis the society. Statutory duty generally is toWdrds G public at large and not towards an individual or individuals and the co-relative right is vested in the public and not in private person, even though they may suffer damages. The duty in such a c-dse is to be enforced by way of criminal prosecution or by way of injunction at the suit under Section 192 of the Code of Civil Procedure, 1908 or with leave of Court under Order I, Rule 8, CPC by public spirited person or in any appropriate H 310 SUPREME COURT REPORTS [1997] 1 S.C.R. A manner to enforce the right and not by way of private action for damages. or B In that situation, the legislature, while recognising the private right vested in an injured individual, may intend that it shall be maintained solely by some special remedy provided for a particular case and not by ordinary method of an action for damages as penalty or compensation. [331-C-F} 2.3. If the statute creates right and remedy, damages are recoverable by establishing the breach of statute as the sole remedy available under the statute. But where statute merely creates a duty without expressly providing any remedy for breach of it, appropriate remedy, prima facie, is punishment for misdemeanour in respect of the injury to the public and C the action for damages in respect of any special damage suffered by an individual. Where special remedy is e¥pressly provided prima facie that was intended to be the only remedy and by implication it excludes the resort to common law. But this is also by no means conclusive. The consideration would be whether the statute intends to award damages for D breach of statutory duty. Though general rule is that where a statute creates an obligation and enforces performance in a specified manner, performance cannot be enforced in any other manner. It depends on the scope of the Act which creates the obli&ration and on consideration of the underlying policy of the statute, effect on the individuals is to be carefully examined and analysed as to what the statute has expressly laid down or E probably what the statute aims to achieve. The action for damages will not lie if the damage suffered by him is not of the type intended to be guarded against. It seems to be contrary to statutory intendment to impose liability upon public body for a th~ng for which no reasonable care in the performance of the concerned act could be inferred from the language used in F the statute; it ought not to be so construed as to innict the liability on the public authority unless the purpose sought to be achieved has been wanting due to want of exercise of duty and reasonable care in tlte performance of duty imposed by the statute. [331-F-H; 332-A-B; D-E) 3.1. Ordinarily principle of the law of negligence applies to public G authorities als.o. They are liable to damages because by a negligent act or failure to act when they are under duty to act or for a failure to consider whether to exercise a power conferred on them with the intention that it would be exercised if and when public interest requires it. Where the public authority bas decided to exercise a power and has done it negligently a H person, who has acted in reliance on what the public authority has done, . ..,. .,. .( RAJKOTMUNICIPALCORPN. V. MANJULBEN JAYAN11LAL 311 may have no difficulty in proving that the damages which be bas suffered A have been caused by the negligence. Where the damage has resulted from a negligent failure to act there may be greater difficulty in proving causation and requires examination in greater detail. The liability in tort is for the damage done, not for damage merely foreseeable or threatened or imminent. [335-F-G; 344-F-G) 3.2. The general rule is that the public authorities are liable .for positive action (misfeasance) but not for omission (non-feasance). In considering the duty of public authority to avoid harm to those likely to B be affected by tbe.exercise of power or duty, the courts have evolved the relationship of proximity or neighbourhood nexus, which exists between C the person who suffered damages and wrong doer. Where there is allega· tion of wrong doing it bas to be seen whether the latter reasonably ought to have foreseen that the carelessness on his part, is likely to cause damage to the other. If it is a reasonable foreseeability that carelessness on the defend_ant's part will cause damage to the plaintiff, then the defendant is D plaintitl's neighbour and prima facie owes towards the plaintiff a duty of care which may, however, be negatived on the ground of public policy or reasonable care taken at the operational stage. [334-G-H; 335-A·B] 33. The distinction between area of public policy and operational area is a logical and convenient one. Undoubtedly, a public authority is E liable for the negligent acts of its servants or agents in carrying out their duties, or exercising their powers, within the operational area, although if the performance of their duties or th~ exercise of their power involves the exercise of discretion. An act will not be negligent, if it is done in good faith in the exercise of, and within the limits of the· discretion. [33S.C-D] F 4.1. Statutory power is not something like statutory duty. Before the repository of a statutory power can be made liable for negligence for a failure to exercise it, the statute must (either expressly or by implication) impose a duty to exercise the power and confer a private right of action in G damages for a breach of the duty so imposed. The question whether the Act confers a private right of action depends upon the interpretation of ·the provisions of the Act. But by process of statutory interpretation, the c~urts may not superimpose a general Common Law duty on a statutory authority in order to give effect to its resumed idea of policy or. duty. Common Law does not super-impose such a duty on a mere statl,ltory H 312 .SUPREME COURT REPORTS [1997] 1 S.C.R. A authority. The nature and scope of the Common Law duty of care owed .bY a public authority exercising statutory powers must be discerned carefully by reading the J.lrovisions of the Act, the objl'.ct it seeks to achieve and other relevant considerations. The public authority is under a duty to take some action whdhcr or not in exercise of its statutory power or not to prevent B injury only if its antecedent acts, have created or increased a risk of injury of that kind. The normal duty of care cannot be a duty to exercise the statutory power to prevent injury in another or otherwise to act in such a way as to prevent injury to him unless the authority has itself created or increased the risk of injury of that kind. In the absence of such a statutory duty, a normal duty of exercise of care cannot arise unless the act actually C done in exea·cise of a statutory power, creates or increases the risk of foreseeable injury to another and then the duty is to do those acts with reasonable care and to ta ke reasonable precautions .to prevent that injury from occurring. The duty of care, therefore, must have co-relationship to the kind of damage that the plaintiff bas suffered and not to the plaintiff . D or a class of which the plaintiff is a member. These cases relate to private law tort. [336-B-G; 346-A] E Oversea? Tanks/zip (U.K.) Ltd. v. Morts Docks alld Engineering Co. Ltd., (1961) AC 388, referred to. 4.2. The proper approach, therefore, is to consider whether a duty of care situation exists in public law tort which the law ought to recognise and whdher in that situation the defendant's conduct was such that he should have foreseen the damage that would be innicted on the plaintiff. As a general rule of law, one man is under no duty to control another so F as to prevent· the IaUer from doing damage to a third. The first question to be considered is: whether the plaintiff bas established necessary relationship giving rise to the duty of care? The next question is whether there is any negligence at the time when the act in question was committed? The act complained of must have rational relationship to the damage caused. The tort of negligence does not depend simply on the question of G foreseeability. Foreseeability is not the sole criteria nor does the fact that the damage is foreseeable creates any onus. What the court would ask or look at is the operational structure of the Act. Is this a situation where a duty does exist towards the plaintiff or class or persons to whom he belongs keeping in mind tbe nature of the functions and the interest of tbe · H community? The further question would be: whether the damage to the ~ RAJKOT MUNICJP AL CORPN. v. MANJULBEN JAY ANTILAL 313 plaintiff is so foreseeable? In that behalf it must be further seen whether A "' there was sumciently proximate relationship between the plaintiff and the 1 defendant. [346-A-EJ 4.3. Each case requires to be examined in the light of the special circumstances, viz., whether the defendant owed a duty of care to the B plaintiff, whether the plaintiff is person or a class of persons to whom the defendant owed a duty of care, whether the defendant was negligent in performing that duty or omitted to take such reasonable care in the .., performance of the duty, whether damage must have resulted from that particular duty of care which the defendant owed to the particular plaintiff or class of persons. Public authorities discharge public obligations to the c public at large. Therefore, it owes duty of care at common law to avoid causing present or imminent danger to the safety of the J'laiotiff or a class of persons to whom the plaintiff belongs. It is a statutory duty of care under common law which could give rise to actionable claim·in the suit of ' the individual and it is capable of co-existence along side a statutory duty. D The duty of care imposed on a local authority by law may not be put beyond .,... what the statute expects of the local authority or Corporation to perform · the duty. The tort of insuperable negligence would emerge from imminent danger created by positive act. But the duty of care imposed on local authority by law may be gauged from the circumstances in which and the conditions subject to which the duty of care has been imposed on the E statutory authority. The immin.ent danger theory must be viewed keeping at the back of mind the act or conduct creating the .danger to the plaintiff or the class of persons to which he belongs and that by negligent conduct the defendant causes damage to the property or person of the plaintiff, though the defendant is not in know of the danger. The defendant also in F , . given circumstances, must owe special responsibility or proximity impos· ing foreseeable duty to care, to safeguard the plaintiff from the danger or to prevent it from happening. [359-H; 360-A-DJ 4.4. There must exist some proximity of relationship, foreseeability G of danger and duty of care to be performed by the defendant to avoid the 1 accident or to prevent danger to person of the deceased. The requisite • degree of proximity requires to be established by the plaintiff in the :-·-+ circumstances in whicb the plaintiff was injured. The plaintiff would not succeed by establishing that the accident had occurred due to negligence, i.e., the defendant's failure to take reasonable care as ordinary prudent H 314 SUPREME COURT REPORTS {1997] 1 S.C.R. A Dlan, under the circumstances, would bave taken and the liability in tort to pay damages had arisen. If the defendant had become aware of the decayed co~dition or that the tree was affected by disease and taken no action to prevt:nt the accident, it would be actionable, though for nonfeasance. Mere appearance of danger gives rise to no liability. Actual B damage had occurred before tortious liability for negligence arose. When the defendant is under statutory duty to take care not to create latent source of physical danger to the property or the person who in the circumstances is considered to be reasonably foreseeable as likely to be affected thereby, the defendant would be liable for tort of negligence. If the latent defect causes actual physical damages to the person, _the defendant · C is liable to damages for tortious liability. The negligent act or omission of the statutory authority must be examined with reference to the statutory provisions, creating the duty and the resultant consequence. The negligent act or omission must be specifically directed to safeguard the public or some sections of the public to which the plaintiff was a member, from tht D particular danger, which bas resulted. [360-G-H; 361-A-C) S.l. The exercise of power/omissions must have been such that duty of care bad arisen to avoid danger. Foreseeability of the danger or injury alone is not sufficient to conclude that duty of care exists. The fact that one could foresee that a failure of the authority to exercise a reasonable E care would cause loss to the passers-by itself does not mean that such a duty of care should be imposed on the statutory authority. The statutory authority exercises its public law duty or function. It would be wrong to think that the local authority always owns responsibility and continues to have the same state of alT.airs. It would be an intolerable burden of 4uty p of care on the authority; otherwise it would detract the authority from perfonniog its normal duties. If he were to gauge the risk of litigation, he would avoid doing public duty of planting and nurturing the trees thinking that it would be a hea~ burden on the local authority. It would always cause hea~ financial burden on the statutory authority. If the duty of maintaining constant vigil or verifying or testing the healthy condition of trees at public G places with so many other functions to be perl'ormed were cast on it, the effect would be that the authority would omit to perform statutory duty. Duty of care, therefore, must be carefully examined and ti1e foreseeability of damage or danger to the person or property must be co-refated to the public duty of care to infer that the omission/non-feasance gives rise to actionable claim for H damages agaJD$t the defendant. [361-D-G] " [ t RAJKOT MUNICIPAL CORPN. v. MANJULBEN JAY ANTILAL 315 5.2. When a person uses a road or highway, under common law one A ..... . 'I' has a right to passage over the public way. When the defendant creates by positive action any danger and no signal or warnings are given and consequently damage is done, the proximate relationshii' gets established between the plaintiff and the defendant and the causation is not too remote. Eljually, when the defendant omits to perform a particular duty B enj?ined by the statute or does that duty carelessly, there is proximity between the plaintiff injured person and the defendant in performance of ·:... .,. the duty and when injury occurs or damage is suffered to person or ' property, cause of action· arises to enable the plaintiff to claim damages from the defendant. But when the causation is too remote, it is difficult to . anticipate with any reasonable certainty as ordinary reasonable prudent c l man, to foresee damage or injury to the plaintiff due to causation or omission on the part of the defendant in the performance or negligence in the performance of the duty. [361-H; 362-A-C) 5.3. When the defendant was not in know of the discoverable defect D or danger and it had caused the damage by accident like sudden fall of the :>- tree, it would be difficult to visualise that the defendant had knowledge of the danger and he had omitted to perform the duty of care to prevent its fault. There would be no special relationship between the statutory authority and the plaintiff who is a remote user of the footpath of the street E by the side of which the trees were planted, unless the defendant is aware of the condition of the tree that it is likely to fall on the footpath on which the plaintiff/class of persons to which he belongs frequents it. The defen· dant by his non-feasance is not responsible for the accident or cause of the death since admittedly there was no visible sign that the tree was affected ...,. by disease. It had fallen in a still condition of weather. [360-D-F] F · 5.4. In determining the legislative intent, the Court is required to consider three factors, viz., the context and the o~jcct of the statute, the nature and precise scope of the relevant provisions and the damage suffered not of the kind to be guarded against. The object of the Act is to G promote facilities of general benefit to the public as a whole in getting the trees planted on roadsides, the discharge of which is towards the public at large and not towards an individual,· even though the individual may suffer .. .....; some harm. The Act does not provide for any sanctions for. omission to take action; i.e., planting trees or their periodical check up when planted. By process of interpretation, the Court would not readily infer creation of H 316 SUPREME COURT REPORTS (1997]1 S.C.R. t . A individual liability to a·named person or cause of action to an individual, ..., ... unless the Act expressly says so. While considering the question whether or not civil liability is imposed by a statue, the court is required to examine all the provisions to find out the precise purJ)OSe of the Act, scope and content of the duty and the consequential cause of action for omission ~ thereof. Action for damages will not lie in the suit by an injured person if ;. B i the damage suffered by him is not of the kind intended to be protected by r . the Act. (321-G-H; 322-A-B] .. "'i 6.1. The statute enjoins a power to plant trees on the roadsides or in public places. There is no statutory sanction for negligence in that c behalf. But the question is: whether the statutory function to plant trees gives rise to duty of maintaining the trees. In a developing society it is but obligatory on every householder, when be constructs bouse and equally for a public authority to plant trees and properly nurture them up in a healthy condition so as to protect and maintain the ceo-friendly environment. But r D the question is: ·whether the public authority owes a statutory duty towards ~ that class of persons who frequent and pass and repass on the public highway or road or the public places. If the local authority/statutory body ~ has neglected to periorm the duty of maintaining trees in a healthy condition and when damage, due to fall of the tree occurs, the question emerges whether the neighbour relationship and proximity or the causaE tion and negligence and the duty of care towards the plaintiff have been satisfactorily proved to have existed so as to fasten the defendant with the liability due to tort of negligence. It depends on a variety of facts and circumstances. It is difficult to lay down any set standards for proof ~ ,., thereof. [362-D-G] F 6.2. In a situation like the present one where the victim being not .,.... aware of the disease/decay, the tree suddenly falls in a still weather condition, no one can anticipate and it is difficult to foresee that a tree } would fall suddenly and thereby a person who would be passing by on the G roadside, would suffer injury or would die in consequence. The Corpora· tion or the authority is not liable to be sued for tort of negligence since the causation is too remote. Novus actus inconveniens snaps the link and, - · \ therefore, it is difficult to· establish Ia ck of care resulting in damage and foreseeability of tbe damage. The case in band falls in this category. The ..__ deceased was admittedly passing on the roadside to attend to his office H duty. The tree suddenly fell and he sustained Injury and consequently died. ... RATKOTMUNICIPALCORPN. v. MANJULBEN JAYAN'JlLAL 317 It was difficult to foresee that a tree would fall on him. (363-D-Fl A 7. The conditions in India have not developed to such an extent that a Corporation can keep constant vigil by testing tht healthy condition of the trees in the public places, roadside, highway frequented by passers-by. There is no duty to maintain regular supervision thereof, though the local B authority/other authority/owner of a proptrty is undet· a duty to plant and maintain the tree. The causation for accident is too remote. Conse - + RAJKOTMUNICIPAL CORPN. v. MANJIJLBEN JAY ANTli..AL(RAMASWAMY, J.) 319 generally while in contract it is towards specific person or persons. If the A claim depends upon proof of the contract, action does not lie in tort. If the claim arises, from the relationship between the parties, independent of the contract, an action would lie in tort at the election of the plain tifT, although he might alternatively have pleaded in contract. [325-E-F] Sir Percy Winfield: "Province of the Law of Tori'~ p 32; Clerk and B Liodsell: "Torts'~ Common Law Library, Series No. 3 (12th Edn.) Ch. 3, p I, para I, Cb. 4, para 2; Oliver Lindel Holmes : "Common Law", (1881 Edn.) p 96; Michael A. Jones : "Torts" (Fourth Edn.) 1955; Lawman (India) Pvt. Ltd. Ch.