# STATE OF PUNJAB v. MODERN CULTIVATORS, LADWA

- **Citation:** [1964] 8 S.C.R. 273
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-punjab-v-modern-cultivators-ladwa-3261
- **Pages:** 22

## Headnote

2 S.C.R.
SUPREME COURT REPORTS
273
STATE OF PUNJAB
v.
MODERN CULTIVATORS, LADWA
(A. K. SARKAR, M. HIDAYATULLAH AND J. R. MUDHOLKAR,
JJ.)
Torts-Break in canal bank-Suit for damages-defendants' negligenceNon-production of documents by defendant-If adverse inftreuce
can be drawn-Whether principle Re! lpsa Loqu;tur applits?-
Northern India Canal and Drainage Act, 18731 ss. 6, 15.
A firm called the Modern Cultivators brought a suit against the
State of Punjab to recover damages for loss of crops suffered by flooding.
'.Jf its Jands as a result of a break in a canal belonging to the State.
The plaintiff's case was that there was a breach in the western bank
of the canal owing to the negligence of the defendants and canal water
escap!!d to the fields 1.:ausing them to be flooded.
The case of Government wao;; that bre.ach did take place but it was promptly repaired and
the fields were fiooded not by the canal water but by heavy rains in
the monlh of s~ptembcr. The trial Judge passed a decree for Rs. 20,000
against Government. but it was reduced by the High Court to Rs. 14,130.
The High Cotrt held that the inundation of the fields was by water
frCtm the canal and not from the nallahCis.
Both the plaintiff and the
defendant filed cross-appeals by special leave ot this Court.
Held (per Sarkar, J.): (i) That the rule of res ip_ra loquitur was
applicable to the facts of this case because there would not have been
a breach in the banks of the canal if those in management took proper
care and
tt-.e breach itself would be prin1a facie proof of negligence.
Scott v. L11ndon_Dock Co., 3 H & C 601 applied.
Bal'kway v. South Waler Transport Ca. Ltd., [19SO] 1 All. E.lt. 392,
•istinguished.
(ii) An inference that the defendant was negligent in the management of the canal arises because· it is clear from the record that documents cailed for had not been produced deliberately.
MurugesonJ Pillai v., Manickavasaka Pandara, L .. R.
44
I.A.
98,
rtlerred to.
.
(iii l Arrick 2 o! the Limitation Act does not apply to the facts· of
tJte case fo~ ·tilert> is :nothing in the Canal Act imposing any duty On
the def·~n<lant to taie. care of the banks.
Held (per Hid.,,ati.Iiah, J,): (i) The principle of ru i1pa loquitur
Manot always be safely applied where the faci.. before the court aro
mot the whole facto. It ahould not . be applied u le11al rule but only
II ll.C.-11.
1964
May, 8
lfU
811111 •f l'UN/a•
••
lltlUnc C1tltiraIMI
SUPREME COURT REPORTS
[rg64]
u an aid to an inference when it is reasonable to think that there aro
no further facts to consider. It is not a principle which dispenses wi ·~.
proof of negligence. !lather it shifts onua from one party to another •
It is a rule of evidence .and not of liability. A too ready reliance ot1
the maxim reinforces a fault liability and makes it into an absolute
liability. If absolute liability is to giTe way to fault liabilty, some
fault must be establshed by evidence .or must be capable of being
reasonably inferred from the circumstances. It is not sufficient to s:t.y
Tt.8 ipJa loquitur because the danger is that facts may not alway5 tell
the whole story and if there is something withheld bow can the thing
be said lo speak for itself? The High Court erred in applying tloe
principle of res ipsa loqutur to the facts of this case.
In the present case there was sufficient evidence, in the absence 1f
reasonable cxplanati..:.a
(~lticb there was not), to estabfish negligence.
Donoghue v. Stevenson, [1932] A.C. 562, expla'ned.
Stdltigh·Denfidd v. V. O'Ca//aghan and Others [1940] A.C. 880
an'd Scott v. London and St. Katherine Docks Co., 3 H. & C.
59':
159 E:R. 665, referred to.
Barkway v. South Wales Transport Co. Ltd. [1950] I All. E.R. 392
H.L. 394, relied on.
(ii) The rule in Ray/ands v. Fletcher is hardly dpplicable here.
Canal Systems are essential to the life of the Nation and land that is
used as canals, is subjected to an ordinary use and not ·to unnatural
use on which the rule in Ray/ands v. Fletcher rests. 1bere is

## Text

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2 S.C.R.
SUPREME COURT REPORTS
273
STATE OF PUNJAB
v.
MODERN CULTIVATORS, LADWA
(A. K. SARKAR, M. HIDAYATULLAH AND J. R. MUDHOLKAR,
JJ.)
Torts-Break in canal bank-Suit for damages-defendants' negligenceNon-production of documents by defendant-If adverse inftreuce
can be drawn-Whether principle Re! lpsa Loqu;tur applits?-
Northern India Canal and Drainage Act, 18731 ss. 6, 15.
A firm called the Modern Cultivators brought a suit against the
State of Punjab to recover damages for loss of crops suffered by flooding.
'.Jf its Jands as a result of a break in a canal belonging to the State.
The plaintiff's case was that there was a breach in the western bank
of the canal owing to the negligence of the defendants and canal water
escap!!d to the fields 1.:ausing them to be flooded.
The case of Government wao;; that bre.ach did take place but it was promptly repaired and
the fields were fiooded not by the canal water but by heavy rains in
the monlh of s~ptembcr. The trial Judge passed a decree for Rs. 20,000
against Government. but it was reduced by the High Court to Rs. 14,130.
The High Cotrt held that the inundation of the fields was by water
frCtm the canal and not from the nallahCis.
Both the plaintiff and the
defendant filed cross-appeals by special leave ot this Court.
Held (per Sarkar, J.): (i) That the rule of res ip_ra loquitur was
applicable to the facts of this case because there would not have been
a breach in the banks of the canal if those in management took proper
care and
tt-.e breach itself would be prin1a facie proof of negligence.
Scott v. L11ndon_Dock Co., 3 H & C 601 applied.
Bal'kway v. South Waler Transport Ca. Ltd., [19SO] 1 All. E.lt. 392,
•istinguished.
(ii) An inference that the defendant was negligent in the management of the canal arises because· it is clear from the record that documents cailed for had not been produced deliberately.
MurugesonJ Pillai v., Manickavasaka Pandara, L .. R.
44
I.A.
98,
rtlerred to.
.
(iii l Arrick 2 o! the Limitation Act does not apply to the facts· of
tJte case fo~ ·tilert> is :nothing in the Canal Act imposing any duty On
the def·~n<lant to taie. care of the banks.
Held (per Hid.,,ati.Iiah, J,): (i) The principle of ru i1pa loquitur
Manot always be safely applied where the faci.. before the court aro
mot the whole facto. It ahould not . be applied u le11al rule but only
II ll.C.-11.
1964
May, 8
lfU
811111 •f l'UN/a•
••
lltlUnc C1tltiraIMI
SUPREME COURT REPORTS
[rg64]
u an aid to an inference when it is reasonable to think that there aro
no further facts to consider. It is not a principle which dispenses wi ·~.
proof of negligence. !lather it shifts onua from one party to another •
It is a rule of evidence .and not of liability. A too ready reliance ot1
the maxim reinforces a fault liability and makes it into an absolute
liability. If absolute liability is to giTe way to fault liabilty, some
fault must be establshed by evidence .or must be capable of being
reasonably inferred from the circumstances. It is not sufficient to s:t.y
Tt.8 ipJa loquitur because the danger is that facts may not alway5 tell
the whole story and if there is something withheld bow can the thing
be said lo speak for itself? The High Court erred in applying tloe
principle of res ipsa loqutur to the facts of this case.
In the present case there was sufficient evidence, in the absence 1f
reasonable cxplanati..:.a
(~lticb there was not), to estabfish negligence.
Donoghue v. Stevenson, [1932] A.C. 562, expla'ned.
Stdltigh·Denfidd v. V. O'Ca//aghan and Others [1940] A.C. 880
an'd Scott v. London and St. Katherine Docks Co., 3 H. & C.
59':
159 E:R. 665, referred to.
Barkway v. South Wales Transport Co. Ltd. [1950] I All. E.R. 392
H.L. 394, relied on.
(ii) The rule in Ray/ands v. Fletcher is hardly dpplicable here.
Canal Systems are essential to the life of the Nation and land that is
used as canals, is subjected to an ordinary use and not ·to unnatural
use on which the rule in Ray/ands v. Fletcher rests. 1bere is difficulty
In distinguishing non-natural and natural user.
Rylands v. Flttcher, L.R. 3 H.L. 300, inapplicable.
Richards v. Lothian, [1913] A.C. 263, relied on.
(iii) Article 2 of the Limitation Act cannot apply to cases ·where
the act or omission complained of is not alleged to be in pursu<inr.c
of statutory authority. Act or omission which can claim statutory
protection or is alleged to be in pursuance of a statutory commaU
may attract Art. 2 of the Limitation Act but the Act or omission must
be one which can be said to be in pursuance of an enactment. In tlte
present case the breach in the bank was not that kind ·of act or omissio•.
It could not claim to be in P1:Jtsuance of the Canal Act. Nor coullll.
the opening or closing of the channel for 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 limitatioa
of 90 days to that cause of action is not only impossible but also absurtl.
Article 2, therefore does not apply. Article 3 of the Limitation Act
applie:1 to the present Ca!e.
Punjab Cotton Press Co. Uti. T. SecretMy of St•te, I.LJt. IQ Lah. 1'1
P.C., inapplicable
8 S.C.R.
SUPREME COURT REPORTS
275
Mohamad Sadaiit Ali Khan Y. Administrator Corpor•tion of City
t1f Lahore, I.L.R. [194S] Lah. S23 F.B. and S<er.tary of Stale v. Lodna
Colliery Co. Ltd., LL.It. 15 Pat. 510, referred lo.
Commissioner.t for the Port of CuJcutlii Y. Corpor"tion of Clllcutta,
64 I.A. 363, distin&uished.
Held (per Mudholkar 1.): (i) The rule in Ry/,mds v. Fl<tch<r
applies only if the defe1~dant brings or accumulates on his own land
soine~hing that is likely to escape and do inischief,
irre~pective of tho
question whether that wa.i t.lone by the defendant wilfu:Jy or n~gligendy.
This rule has been adopted in this country in several cases anJ so call
be regarded ac: a part of the
common
law
of the
land. !n the
country of its origin, thii: rule has been subjected h> cert.tin exception11.
One of the exceptions is this: that where the owner llf occupi·~r 'lf land
accumulates a deletericus substance thereon b)· virtue of an obligation
imposed up-on hin1 by " statute or in exercise of st'1tt1tory authority
he will not be rtn<lered li<ible for damages resulting therefrom to other
persons unless it is established that he was guilty .:1f neglige.r..:c i.n
allowin~ the deleterious substance to escape.
The
1:re~e11t case fa1-l1
within this exception.
The State of Punjab would not be liable for dam::tges by the operation of the rule in Rylands v. Flflcher hut is liable by rc:.ts1)n of iti
negligence.
The breach v.:<1s caused by the neglig:en;:e on th•: part of
the officers of the Stale in inspecting the banks of the canal :lnd ia
particular that portion of ir where the breach had been cJuscd.
Rylands v. Fletcher, (1868) L.R. 3 H.L. 330 expJa;ned.
Gooroo Chui·n \'. Riun Jlutt, (1865) Z W.R. 43. Dhanitsav v. Sitabai,
(1948) Nag. 698, and Du11ne v. North We.!o·tern Gns Bot1rd. (1964)
2 W.L.R. 164, referred to.
(ii) The rule of evidence rts ipsa loquitur cannot be applied to
the facts of this case because all the facts for the decision of the case
were not placed before the court. Jmn1ediately after the breach occurred
some reports were made by the officers of the State but they were not
placed before the Court despite it! order requiring their productioL
Jn other words the State had deliberately suppressed evidence in iSI
possession which could have established negligence.
In this view the
rule of res ipi11 loquilur is not the applicable.
CJVIL APPELLATE JURISDICTION: Civil Appeals Nos.
416 and 417 of 1947.
Appeals from the judgment and decree d:lted May 1,
1956, of the Punjab High Court in Regular First Appeal
No. 45 of 1950.
1964
St•le a/ Pun;ob
v.
MtJJern Cultivotor1
1964
SlllU of Punjab
••
lllodern C11/tivaltJ11
Sorkor J.
276
SUPREME COURT REPORTS
[1g64]
A. V. Viswanatha Sastri, Gopal Singh and R. N.
Sachthey, for the appellants (in C,A. No. 416/1962), '1nd
respondent (in C.A. No. 417/62) .
S. T. Desai, Hardayal Hardy and J. P. Agarwal, for the
respondent (in C.A. No. 416 of 1962) and appellants (in
C.A. No. 417 of 1962).
May 8, 1964. The following Judgments were delivered
by the Court.
SARKAR J.-1 agree with the orders proposed by my
brother Hidayatullah.
These appeals arise out of a suit brought by a firm called
the Modern Cultivators against the State of Punjab to
recover damages for loss suffered by flooding of its lands
as a result of a breach in a can.al 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 Cultiv.ators 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 plaintiff's lands are not now denied.
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.
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 defendant's 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.
It 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 Execu·
tive Engineer in charge of the canal at the relevant time,
S S.C.R.
SUPREME COURT REPORTS
277
there was a regular office and various reports concerning
the breach had been made.
None of these was produce<!
at the hearing.
It is obvious that in an organisation like
the canal office, reports and olher documents must have
been kept to show how the breach occurred and what was
<lone 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
negligent: Murugesan Pillai v. Manickavasaka Pandara(').
It was suggested in this Court that the documents had
been destroyed. It may be that they are now destroyed.
One of the defendant's 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 destroyea.
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 negligent in the management of the canal
arises from the non-production of the documents.
There is,
therefore, evidence that the defendant was negligent.
Furth=ore it seems to me that the rule -of res ipsa
loquitur applies to this case. The canal was admittedly in
the management of the defendant and canal banks are 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.(2). ·· 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 ipia
/oquitur may not apply where it is known how the thing
which caused the damage happened as was held in Bm kway
v. South Wales Transport Co., Ltd.(3 ). But that is not the
(2) 3 H. & c. 6ot
(3)119501 I All E.R. 392
1'64
Stat• of Prut/ab
••
Modtrn Cult/••
tori
Sarkar I.
1964
Stai. of Punjab
v.
Modern Cultiva1011
Sarkar J.
SUPREME COURT REPORTS
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.
I do not think it necessary in the present case to consider
whether the rule in Rylands v. Fletcher(') applies to make
the defendant liable for I have already held that it is liable
as negligence has been proved.
The second point raised by the defend.ant 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
applies, 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 Saadat Ali
Khan v. The Administrator,
Corporation of City of
Lahore (2). But apart from that I find nothing in the Canal
Act imposing any duty on the defendant to take care of
the oanks. We ll'ere referred toss. 6 and 51 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 acpident or prevent it.
This section
again has nothing to do with taking care of the canal banks.
Therefore, even assuming that the defendant's interpretation
of art. 2 is correct, this is not a c.ase to which it may apply.
I wish however to make it clear that nothing that I have said
(I) [1868] L.R. 3 H.L. 330
(2) (1945] !LR 26 Lah. 523
I
I
S S.C.R
SUPREME COURT REPORTS
279
I
· · here is to be read as in any way approving the defendant's
interpretation of .art. 2. Therefore the defendant's contentio!1 that the suit was barred by limitation also fails.
The defendant's appeal must, therefore, be diSmissed and
the plaintiff's ap;:eal alJ(>wcd. · Costs will naturally follow
the result.
1964
Stat• of PuniU
...
Mollcrn C11lJIP•
"'"
Sorl11t 1.
HIDAYATULLAH, J.-On August 15, 1947 the Western Hidayotullah 1.
Jamna Canal at R.D. No. 138000 near Sanglpur .and.
Jandhrea villages burst its western bank. The canal water
inundated the neighbouring fields where crops of sugar cane,
maize, urud etc. grown by the plaintiff firm were dam.aged.
The plaintiff brought this action alleging that the breach in
the bank was caused by negligence on the part of the canal
authorities who were guilty of further negligence in not
closing the breach without delay. The plaintiff estimated ..
its loss at Rs. 60,000 in respect of the standing crnp and a
further loss of Rs. 10,000 in· respect of the deterioration of ·
the land for future cultivation.·· It however, limited its claim
to Rs. 20,000.
·
The State Government denied negligence on the part of
the canal authorities.
Government admitted that a breach
did occur in an old inlet channel of Chhalaundi Silting Tank
on August 15, 1947 and some canal water escaped through
the· breach which, it was said, flowed back to
the canal
through the outlet of the silting tank lower down the canal
Government claimed that the site was immediately inspected by the Executive Engineer and no damage to the crops
was discovered and that the breach was promptly closed and
the bank was strengthened.
Government stated that there
were henvy rains on the 8th September and again from 23rd
to 28th September, 1947 causing floods in the nullahas but
as the canal was running full supply, water brought by the
nullahru to the silting tank could not get to the canal and
over-flowed to the adjoining areas.
Shortly stated, plaintiff's case was that there was a breach
in the western bank of the canal owing to the negligence of
the defendants arid canal water escaped to the fields eausing
them to be flooded; while the case of the Government was
that a breach did take 1>lace but it was promptly repaired
19M
· . State of Punjab
v.
Modern Cultivator1
SUPREME COURT REPORTS
[rg64.]
and. the fields were flooded not by the canal water but by
heavy rains in the month of September. The trial judge
passed a decree for Rs. 20,000 against Gove=ent, but it
was reduced by the High.Court to Rs. 14,130. These two
Hidayatullah . 1• cross-appeals have thus been filed by the rival parties by
__________ SJY"--cial leave of this Court. -· ·
The High Court and the court below have agreed in
holding that there was a break in the canal. The size of
the breach has been variously described, but it was certainly
not less than 30 feet wide and the depth of the water at the
breach was about 15 feet.
It is admitted that the canal was
then running full supply @ 5,000 Cusecs.
As the width
of the canal was 400 feet, the out-flow would be at the rate
of 5,000X30/400 Cusecs if the breach was 30 feet wide.
This would mean extensive flooding of the low lying areas
unless the breach was
immediately closed.
Some of the
witnesses say that it was as much as 70 to 80 feet wide
and that would make the out-flow even greater. The High
Court held that the floods were not caused by the rains.
Prior to the break in the canal there was only 1 inch of rainfall.
The heavy rains took place much later. The inundation of the fields was thus by water from the c.:rnal and not
from the nullahas.
This much has already been held. It
is admitted that the breach occurred at a place where there
was an old nullah through which silting operations
were
·carried out in the past and this exit was closed in the
previous years and· the breach was at that very site.
The
breach was noticed on the morning of the 16th. No attempt
was made by either side to establish the exact duration of
time before the
breach
was
repaired.
Mr.
M.:ilhotra
(Executive Engineer) stated that it was repaired by the 18th
but was re-opened (one does not know why) on the 20th
and again closed on the 21st.
Evidence on 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 re.duced from the headworks when the
breach occurred. It apparently continued on full supplr.
The High Court attempted to secure the documents from the
Canal Office which had not been produced earlier. The
8 S.C.R ...
,\ SUPREME COURT REPORTS
281
196-1
Executive Engineer, then in charge was summone<fto-bnng
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 upto 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 upto October was
also false. It may thus be assumed that repairs were completed by the 27th August but not earlier.
State of Pun/all
Y.
Modern Ca.lti•a-a
torr
IIidayatullah 1.
It is admitted that the area into which water flowed was
used as a silting tank. The silting operations comprise the
opening of the bank of the canal at a selected place to let
out turbid water which passing through the silting tank drops
the sediment and flows back to the canal at a lower reach -
free of the silt, and closing of the bank. -It is now admitted
th.at at the exact spot where the breach took place there was
previously an opening for silting purposes which was recently
closed.
There is no evidence to show negligence on the
part of Government.
Curiously enough Goveniment said
that it had, not preserved the papers connected with this
mishap.
We can hardly believe - this.
Government
led
evidence to establish that the banks of the canal were periodically inspected and claimed that the breach was an act of
God without any negligence on the part of the canal authorities.
It is an admitted fact that crops of the plaintiff were
destroyed if not
wholly at least substantially.
The only
question, therefore, is whether Government can be held
responsible for the damage caused to the plaintiff and, if
so, what should be the compensation.
_Two points were urged on behalf of Government: the
first was that the suit filed by the plaintiff was out of time
inasmuch as Art. 2 of the Indian Limitation Act which prescribes a period of three months was
applicable and not
Art. 36 which prescribes a period of two years.
This was
held against Government by the High Court and the court
-below. The second point urg~d on behalf of Government
was that there was no proof of negligence whatever by the
plaintiff and the plaintiff must therefore fail.
The High
19U
tlll• Bf J!unj•~
v.
lod•rn CultiYOtor1
•idayatullah J.
282
SUPRE.ME COURT REPORTS
[1964]
Court in dealing with this point held that, in the circumstances res ipsa /oquitur and that it was not necessary for
the plaintiff to prove negligence .and it must be so presumed.
The High Court differed from the court below in assessing
damages.
In the appeal of the Government both these points are
urged.
On behalf of the plaintiff, in the companion appeal,
it is contended that the High Court omitted to give proper
compensation for the loss of maize and urud crop. It is
submitted that the High Court adopted the formula that in
respect of sugar cane crop which needs plenty of water the
damages should be assessed at 1/3 of the value of the crop
and in respect of maize and urud crops at 1/2 the value.
The plaintiff contends in its appeal that the whole of the
maize and urud crop was completely destroyed and the
decree of the court of first instance allowing 3/ 4 of the value
of the crop as compensation was unassailable.
It is pointed
out that evidence disclosed that water in the fields was 4
to 5 feet deep and the maize and urud plants were less than
2 feet high.
In other words, the plants remained
submerged during all the time the fields were inundated. It is
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 dam.ages 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 that appeal.
The facts as found in .this case are that in 1946, the land
which got tlooded, was used for silting operations.
An
opening in the western bank was made in that year and the
,
S S.C.R.
SUPREME COURT REPORTS
1964
bank was.restored in June 1946.
Till the month of August
in the following year there was no complaint.
Evidence
discloses that the banks were regularly inspected.
A special
Engineer and a Special Sub-Divisional Officer were in charge·
.and there were watchmen also.
There is no evidence of
wilful con1 !uct. The plaintiff has not led evidence to establish
.any particular act of negligence. There is no evidence that
the breach was caused by the act of a third party or even of
God.
Mr. Sastri, therefore, contends that as there w·as no
forese.able danger against which precautions could be taken
beyond making periodical inspections, and this was done,
there can be no liability.
He submits that in this view of
the matter the plaintiff must fail in the absence of proof
of negligence.
State of Pun;alr
v.
Modern Cultiva+
tori
Hidayatullah J !
The High Court applied to the case the rule in Donoghue
v. Stavmson( 1 ) reinforcing it with what is often described
as the doctrine of res ipsa loquitur.
This case is first of its
kind in India .and needs to be carefully considered.
Before
us reliance was placed upon
the rule
in
Rylands
v.
Fletcher('). That rule, shortly &tated, is: that any occupier
of land who brings or keeps upon it anything likely to do
damage if it escapes is bound at his peril to prevent its
escape, and is liable for all the direct consequences of its
escape, even if he has been guilty of no negligence: Per
Salmond, Law of Torts 13th Edu. p. 574.
The rule in
Rylands v. Fletcher was derivatively created from the rule
of strict liability applicable to the acts of animals but, in
my opinion, it is hardly applicable here.
Canal systems
are essential to the life of the w.ition and land that is used
as canals, is subjected to an ordinary use and not to an
unnatural use on which the rule in Rylands v. Fletcher rests.
The words of Lord Cairns "non .. natural use" of land and of
Blackburn, J. "special use bringing with it increased danger
to others" are sometimes missed.
There is difficulty in distinguishing non-natural and nai:ural user but perhaps the
best test to apply is stat·~ by Lord Moulton in Richards v.
Lothian (1) :
(1)[1932] A.C. 562
(2) L.R. 3 H.L. 300
(3) [1913 I A C. 263, 280
1964
State of Punjab
v.
.-Modtrn Cultivator1
Hidayatullah J.
SUPREJ,IE COURT REPORTS
[1g64]
"Some special use bringing with it incr iased 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 commutity."
lbey formed the basis of observation of Vis.;oi.nt Maugham
in Sedleigh-Denfield v. V. O'Cal/aghan and Ors. ( 1). As
was pointed out by Holmes in his Common Law (1963)
at p. 93:
"It may even be very much for the pul:lic good that
dangerous accumulations should w made .... "
Cases of breaks in canals resulting in dan,ger to neighbouring lands are rare but some are to be found in Jaw
reports from the United States of America.
I need not
refer to them because the following passage from American
Jvrisprudence Vol. 9 page 340 para 38 gives an adequate
summary of the principles on which they h.au been dealt
with:
"A canal company is also liable for flooding private
property where it has not acquir,ld the legal
right to do so; it is answerable in damages for
all loss occ!lsioned by a neglect ou its part to
use reasonable care and precautiou to prevent
the waters of its canal from escaping therefrom
to the injury arid detriment of others.
A canal
proprietor is not, however, liable for damages
to adjoining lands resulting from a mere accidental break in his canal which lium1n foresight and vigilance could not have anticipated,
and against which proper prudence and judgment could not be expected to provide.
Although it has been held that a canal company is
not Ii.able for damages occasioned by the percolation of waters through
the banks of il~
canal, in the absence of proof of nl!g!igence on
its part in want of skill or care in the construction ·and maintenance of its canal, ~uch holdings are maintenance of its canal, such holdings
---·------
(1) 119401 A.c. 880 ., 888
'
8 S.C.R.
SUPREME COURT REPORTS
285
are opposed to the weight of reason and 111thority."
Perhaps the liability is viewed strictly as an inducement
to care.
Safety is best secured when it is made the responsibility of the per:;on who must not only take precautions to
avoid accident hut who alone decides what those precautions should be.
In this connection the rule that is most
often quoted wa~ stated by Erle C.J. in Scott v. London and
St. Katherine Docks Co. (1) thus:
"There must be reasonable evidence of negligence.
But where the :thing is shown to be under the
management of the defendant or his servants,
and '.he accident is such as in the ordinan; course
of things does not happen if those who tiave the
manugement use proper care, it affords reasonable evidence, in the absence of explanation by
the defendant,. that the accident arose from
want of care."
In subsequent ca5-es it has been customary to regard this as
a statement of the principle of res ipsa loquitur.
But the
principle, if it be one, cannot ~!ways be safely applied where
the facts before the court are not the whole facts.
In a vast
canal system constructed with great care and attention to
detail it may be difficult to prove negligence but it may
sometimes be equall;' difficult to explain how the defect
arose.
The principle of res ipsa loquitur had its origin in
the falling of a barrel of flour from a first floor window on
a passerby but it has been extended to situations quite different.
It is not very much in favour and if applied it must
be correctly understood.
It is not a principle which dispenses with proof of negligence. Rather it shifts onus from
one party to another. It ;s
rule of evidence and not of
liability.
A too ready reliance on the maxim reinforces a
fault liability and makes it into an absolute liability. If
absolute liability is to give way to fault liability, some fault
must be established by evidence or must be capable of being
reasonably inferred from the circumstances.
It is not
(1) 3 H. & C. S96 : 159 E.R. 665
1964
State of Puniab
v.
Modern Cultlra--
tors
Hidayatuflah J.
1964
Stall of PUJtiab
v.
Modern Cultlva·
tor.r
1Jidayatullah I.
286
SUPREME COURT REPORTS
sufficient to say res ipsa loquitur because the danger is ,that
facts may not always tell the whole story and if there is
something withheld how can the thing be saiC: to speak for
itself ? The principle 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 ia
Barkway v. South Wales Transport Co. Ltd.(') :
"The doctrine is independent on the absence of ex·
planation, 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 sufilciently
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 est1blished, 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
appijed 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 ne
further facts to consider.
I shall now consider the facts as they stand in this case
to discover if the canal authorities can be said to be at fault.
The facts show that the water escaped into the Chillaundi
Silting Tank through the nallah which had previously beea
used for silting operations and had been sealed in the previous year. If the plug were sound it would have withstood
the pressure of water as it did after it was repaired on the
27th August even though 28" of rainfall fell within 20 days.
There is nothing to show that the outflow was due to raillfall or a storm so exceptional that it could be regarded as
an a,ct of God.
Nor was it due to any disturbance of the
earth's crust or interferenc!' by a stranger.
There is thus
"Sufficient evidence, in the absence of reasonable explanation
(1) (1950] 1 All. E.R. 39> ot 39·"395
8 S.C.R
SUPREME COURT REPORTS
287
(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.
It remains to consider the question of limitation.
The
High Court and the court below have applied Art. 36 of
the Indian Limitation Act.
Government claims that
the
proper Article to apply was Art. 2.
These Articles may be
set down here:
Description of
suit.
2. For compensation
for doing or for
omitting to do an
act alleged to be
in pursuance of
any en9.ctmant in
force for the time
in India
36. For compensation
for any mal-feasance, mis-feasance
or
non-feasance
independent
of
contract and not
herein
specially
provided for.
Period of I imitation
Ninety day•
Two years (now
one year)
Time
from which
period b~gins to
run.
When
the
act or
omission
takes
place.
When the mal·feasance
mis~feasancc or non~
feasancc talc.es -place.
It is not denied that if Art. 2 was not applicable, the proper
Article would be Art. 36 and the suit would also be within
time. In contending that the second article applies reliance
is placed on a decision of the Privy Council in Punjab Cotton
Press Co. Ltd. v. Secretary of State(').
But that case is
clearly inapplicable.
There the canal authorities cut the
bank of a canal at a selected point to let the water away
with a view to protecting a railway track passing close by
on a high embankment and in this way flooded and injured
the plaintiff's mills.
The Judicial Committee held that if
the act was done, as was said, under s. 15 of the Northern
India Canal and Drainage Act 1873 (8 of 1873), Art. 2 w~s
applicable and not Art. 36.
The case was thus remanded
(1) I.L.R. IO Lah.'r71 P.C.
IJU
Stot1 •I Pull/flt
Y.
M.Cern C•W..
t•r6
llii.,atulltrlt 1.
1964
&tali of Punjab
••
llollern C11/tlvato11 • -
Bldayatullah J.
288
SUPREME COURT REPORTS
to find the fact necessary for the application of the right
article.
In relying upon this case, Mr. Viswanatha Sastri
claims that s. 15 of the Canal Act covers the present facts .
Mr. Gopal Singh, who followed, also refers to s. 6.
These
sections read:
"6. Powers of Canal Officer.
At any time after the day so named, any Canal
Officer, acting under the orders of the State
Government in this behalf, may enter on any
land and remove any obstructions, and may
close any channels, and do any other thing
necessary for such application or use of the
said water."
"15. Power to enter for
repairs and to
prevent
accidents.
In case of any accident happening or being apprehended to a canal, any
Divisional
Canal
Officer or any person acting under his general
or special orders in this behalf may enter
upon any lands adjacent to such canal, and
may execute all works which may be necessary for the purpose of repairing or preventing
such
accidents.
Compensation
for
dam.age to land.
Compensation for damage to land:
In every such case, such Canal Officer or person
shall tender compensation to the proprietors
or occupiers of the said lands for all damage
done to the
same. If such tender is not
accepted, the Canal Officer shall refer the
matter to the Collector, who shall proceed to
aw.ard :compensation for the
damage
as
though the State Government had directed the
occupation of the lands under section 43 of
the La.nd Acquisition Act, 1870."
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
8 S.C.R.
SUPREME COURT REPORTS
that section provides for a notification to be issued declar1964
ing that water would be applied after a particular date for Stat• of Punjab
purpose of any existing or projected canal or drainage work Modern vCultiva·
or for purposes of Government.
On such notification issu1or1
ing any Canal Officer, acting under the orders of the State Hidayatcdlah I.
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. Viswanatha Sastri did not rely upon
s. 6.
Section 15 no doubt confers a power to enter lands and
property of others to affect 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 dutie3 because it cannot be suggested that
they are 'in pursuance of any enactment'.
Cases of malfeasance, misfeasance or non-feasance may 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 <mission
must be one which can be said to be in pursuance of an
enactment.
Here the suit was for compensation for damage
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 bef.:>re June
1946. The third column of Art. 2 provides the start of
the limitation of 90 days-" when the act or omissiJn take.s
place." The period of limitation in this case would he over
even before the injury if that were the starting point.
This subject was elaborately discussed in
Mohamad
Sadaat Ali Khan v. Administrator Corporation of City of
Lahore(') where all rulings on the subject were noticed,
Mahajan J. (as he then was) pointed out that "the act or
omission must be those which are honestly believed to be
justified by a statute".
The same opinion was ~xpressed
(I) l.L.R. [1945] Lah. 523 F.B.
51 S.C.-19.
1964
Stat• of Puniab
v.
Mod.,n Cultivator'
Hidayatullah J.
SUPREME COURT REPOR1S
[1g64)
by Courtney Terrell CJ., in Secretary of State v. Lodna
Colliery Co. Ltd. (1) in these words :-
"The object of the article is the protection of public
officials, who, while bona fide purporting to act
in the exercise of a ·statutory power,
have
exceeded that power and have committed
a
tortious act; it resembles in this respect
the
English Public Authorities Protection Act. If
the act complained of is within the :erms of the
statute, no protection is needed, for the plaintiff
has suffered no legal wrong.
The protection is
needed when an actionable wrong has been
committed and to secure the protection there
must be in the first place a bona fide belief by
the official that the act compalined
of
was
justified by the statute; secondly, the act must
have been performed under colour of a statutory
duty, and thirdly, the act must be in itself a
tort in order to give rise to the cause of action.
It is against such actions for tort that the statute
gives protection."
·
These cases have rightly decided that Art. 2 cannot apply
to cases where the act or omission complained of 1s not
alleged to be in pursuance of statutory authority. It is true
that in Commissioners for the Port of Calcutta v. Corporation of Calcutta(')• the Judicial Committee, while dealing
with s.