# TRUSTEES OF PORT OF BOMBAY v. THE PREMIER AUTOMOBILES LTD. AND ANOTHER

- **Citation:** [1974] 3 S.C.R. 397
- **Court:** Supreme Court of India
- **Decided:** 1974-02-15
- **Bench:** D. G. Palekar, V. R. Krishna Iyer, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/trustees-of-port-of-bombay-v-the-premier-automobiles-ltd-and-another-6071
- **Pages:** 30

## Headnote

Bo111bay Port Trust Act 1879-S. 81-1/ a .~horter period of limitation applies
when rhere is short delivery and the plaintiffs do not know if the total bundle o_f
~oods hai·e actually arrived at the port of delivery.
The first plaintiff became entitled to clain1 _a_consignment of 53
bundles of
mild steel plates despatched by a Japanese exporter to be delivered at the port
of Bombay. The goods were discharged in the docks on 12th September 1959~
into the custody of the Bombay Port Trust. the appellant.
The goods were in4
sured and the second plaintiff was the insurer.
On September 19, 1959, delivery
of the goods was apphed for and was given .but only 52 bundles.
A week thereafter, the first plaintiff demanded the missing bundle but was put off from time
to time by the appellant assuring that a search was in progress to trace the goods.
From the Indian Maritime Enterprises, the agents of the Japanese vessel,
the
plaintiff came to know on November 7, 1959 that all the 53 bundles had been
duly unloaded.
The plaintiff enquired from the appellant again on. December 5,
1959 whether the bundle had been landed; but the port authorities still informed
that the missing bundle was still under search. Thereafter, on January 22, 1960,
the appellant informed the first plaintiff that the bundle under reference tiad been
out-turned as landed but missing.
Within a week thereafter, the first plaintiff asked for a non-delivery l:l!rtificate
and the certificate was issued on March 1, 1960 and on May 12, 1960 a statutory
notice under s .. 87 of the Bomhav Port Trust Act, 1879, was issued and a suit was
filed for the m!s~ing bundle or its value by way of damages.
Tite defence put
forward by the appellant was, that since the suit was governed by s. 87 of the Act
and the cause uf action having arisen on September 19.
1959.
the daim is
barred by limitation because 6 nlonths had already passed from the time the first
cau~e of ~ction arose.
The secon<l plaintiff, insurer, having Paid the value of the lost articles t:::> the
first nlaintiff got itself subrogated to the later's right, and they together filed the
suit before the Court of Small Causes. That Court held against the appellant
but the full Court in appeal reversed the judgment of the trial court and held in
favour of the appellant holding that the claim was barred by limitation. The
High Court, however, held in fav6ur of the plaintiff and hence the appeal to this
Court.
Section 87 of the Bombay Port Trust Act, 1879, _provides that no ~uit or other
proceeding shall be commenced against any person for anything done or purport~
ing to have been done. in pursuance of this Act without one month's previous
notice, and not after 6 months from the accrual of the cause of. such suit· or
other proceeding. The question was whether the suit was for anything done or
purporting to have been done in pursuance of this Act, when the action is for
non :ddlvery of one out of 53 bundles.
G
Allowing the appeal,
ll
HELO: (1) Where a statute imposes a duty, the omission to do somethiu
that ought to be done in order comoletely to perform the duty, or the conlinuin&
to have any such duty unperformec( amounts to an act done or intended to be
done within tho meaning of a statute which provides a special period of limitation for ~;uch an act. [403 H--4-04 Al
Halsburys Laws of England, 3rd Ed. Vol. 2,.4 p. 189-190, referred to.
Therefore in tho present case, the truncated limitation prescribed under the
Act will apply.
[415 El
13-L 954 SupCl/74
398
SUPREME COURT REPORTS
! 1974 I 3 s.C.R.
(2) Sec. 87 of the Act insists on notice of one month.
This period may
legitimately be tacked on to the six months period mentioned in the section (vide
sec. 15(2) Limitation Act 1963. (422 ·G-H]
(3) The starting point of limitation is the accrual of the
i,,:ause of action.
Two components of the "Cause" are important.
The date when
the
plaintiff
CIJ!le to know or ought to know with reasonable diligence that the goods had
been ·Jandcd from t

## Text

_Characters 0–39,844 of 92,738. This is a partial read: ask again with offset=39844 for what follows._

ill
I
A
n
c
D
E
F
TRUSTEES OF PORT OF BOMBAY
v.
THE PREMIER AUTOMOBILES LTD. AND ANOTHER
February 15, 1974
397.
[D. G. PALEKAR, V. R. KRISHNA IYER AND R. S. SARKARIA JJ.]
Bo111bay Port Trust Act 1879-S. 81-1/ a .~horter period of limitation applies
when rhere is short delivery and the plaintiffs do not know if the total bundle o_f
~oods hai·e actually arrived at the port of delivery.
The first plaintiff became entitled to clain1 _a_consignment of 53
bundles of
mild steel plates despatched by a Japanese exporter to be delivered at the port
of Bombay. The goods were discharged in the docks on 12th September 1959~
into the custody of the Bombay Port Trust. the appellant.
The goods were in4
sured and the second plaintiff was the insurer.
On September 19, 1959, delivery
of the goods was apphed for and was given .but only 52 bundles.
A week thereafter, the first plaintiff demanded the missing bundle but was put off from time
to time by the appellant assuring that a search was in progress to trace the goods.
From the Indian Maritime Enterprises, the agents of the Japanese vessel,
the
plaintiff came to know on November 7, 1959 that all the 53 bundles had been
duly unloaded.
The plaintiff enquired from the appellant again on. December 5,
1959 whether the bundle had been landed; but the port authorities still informed
that the missing bundle was still under search. Thereafter, on January 22, 1960,
the appellant informed the first plaintiff that the bundle under reference tiad been
out-turned as landed but missing.
Within a week thereafter, the first plaintiff asked for a non-delivery l:l!rtificate
and the certificate was issued on March 1, 1960 and on May 12, 1960 a statutory
notice under s .. 87 of the Bomhav Port Trust Act, 1879, was issued and a suit was
filed for the m!s~ing bundle or its value by way of damages.
Tite defence put
forward by the appellant was, that since the suit was governed by s. 87 of the Act
and the cause uf action having arisen on September 19.
1959.
the daim is
barred by limitation because 6 nlonths had already passed from the time the first
cau~e of ~ction arose.
The secon<l plaintiff, insurer, having Paid the value of the lost articles t:::> the
first nlaintiff got itself subrogated to the later's right, and they together filed the
suit before the Court of Small Causes. That Court held against the appellant
but the full Court in appeal reversed the judgment of the trial court and held in
favour of the appellant holding that the claim was barred by limitation. The
High Court, however, held in fav6ur of the plaintiff and hence the appeal to this
Court.
Section 87 of the Bombay Port Trust Act, 1879, _provides that no ~uit or other
proceeding shall be commenced against any person for anything done or purport~
ing to have been done. in pursuance of this Act without one month's previous
notice, and not after 6 months from the accrual of the cause of. such suit· or
other proceeding. The question was whether the suit was for anything done or
purporting to have been done in pursuance of this Act, when the action is for
non :ddlvery of one out of 53 bundles.
G
Allowing the appeal,
ll
HELO: (1) Where a statute imposes a duty, the omission to do somethiu
that ought to be done in order comoletely to perform the duty, or the conlinuin&
to have any such duty unperformec( amounts to an act done or intended to be
done within tho meaning of a statute which provides a special period of limitation for ~;uch an act. [403 H--4-04 Al
Halsburys Laws of England, 3rd Ed. Vol. 2,.4 p. 189-190, referred to.
Therefore in tho present case, the truncated limitation prescribed under the
Act will apply.
[415 El
13-L 954 SupCl/74
398
SUPREME COURT REPORTS
! 1974 I 3 s.C.R.
(2) Sec. 87 of the Act insists on notice of one month.
This period may
legitimately be tacked on to the six months period mentioned in the section (vide
sec. 15(2) Limitation Act 1963. (422 ·G-H]
(3) The starting point of limitation is the accrual of the
i,,:ause of action.
Two components of the "Cause" are important.
The date when
the
plaintiff
CIJ!le to know or ought to know with reasonable diligence that the goods had
been ·Jandcd from the vessel into the port.
Two dear indications of when ·the
consignee ought to know are :-( l) when the bulk of the goods arc delivered,
there being short delivery leading to a suit, and (2) 7 days after knowledge of the
Jan<fing of the goods suggested in Sec. 61A.
Whichever is the later date ordi~
~arily sets off the running of limitation.
[422 H-423 B]
(4) Letters .of assurance carinot enlarge the limitation once the goods have
landed and the owner has come to know of it.
[423 B-C]
A
ll
(5) Sec. 87.is attracted not merely when an act is committed but also when
a omission occurs in the course of the performance of the
official
duty.
[42JC-Dl
C
Jn the present case, applying !he above principles, the case has to be decided
against the plaintiffs and the appeal is a11owed.
[4230]
CIVIL APPELLATE JURISJ?ICTION: Civil Appeal No. 342 of 1972.
Appeal by special leave from the judgment and order dated the 16th
September, 1972 of the High Court of Bombay in Civil Revision No.
263 of 1967.
F. S. Nariman, Additional Solicitor General of India, P. C. Bhartari,
B. R. Zaiwala and B. S. Bhesania, for the appellant.
Ani/ B. Divan, K. S. Cooper, Vasant C. Kotwal, S. C. Agarwal and
P. D. Sharma, for the respondents.
The Judg·ment of the Court was delivered by
KRISHNA IYER, J. A small cause
involving a
petty claim of
Rs. 1147 .42 has sailed slowly into the Supreme Court by special leave.
Both sides-The Bombay Port Trust, appellant, and the New Great
Issurance Co. (a nationalised institution), the contesting respondentagree before us that while there is only a short point of law in the
case, a large section of the business com1nunity, as well as the Port
Trust, are affected by the ambiguity of the legal situation and an early
pronouncement by this Court on the law of limitation applicable to
consignee's actions for short delivery by the Port Trust is necessary.
Is the period so brief as six months in terms of s. 87 of the Bombay
Port Trust Act, 1879 (hereir.ufter called the Act), and if so, does time
begin to run within around a week of the landing of the goods (sugge<ted bv s. 61A) of the Act? Or, alternatively, does the longer spell
allowed by the Limitation Act avail the plaintiff and the terminus a quo
,tart only when the owner has been finally refused delivery ? Although
the Court in this case is enquiring whether the little delay alle~ed
legally disentitles the plaintiff to claim the value of the lost goods, it
is a bathetic sidelight that the judicial process has ·limped along for
15 years to decide in this small, single-point commercial cause, whether
a little over seven months to. come to court was too late.
Pope Paul in opening the judicial year of the Second Roman Rota
pontificated that delay in
di~pen.sing _justice is 'in it~elf an act.
~f
injustice'.
Systemic slow motion 111 this area 1nust claim the nations
D
E
F
G
H
!"'
I
'!!,,
TRUSTEES BOMBAY PORT v. PREMIER AUToS. (Krishna Iyer, I.) 399'
A
immediate attention towards basic reformation
of
the
traditional
structure
and procedure if the Indian Judicature is to sustain the
litigative credibility of the community.
Indeed, even about British
Justice Lord Devlm's observations serve as warning for
our court
system : "If our business. methods were as antiquated as our legal
:methods, we would be a bankrupt country."
n
The problem that falls for resolution by this Court turns on the
.subtle semantics alternatively spun by_ counsel on both sides out of
the words "any thing done, or purporting to have been done, in
pursuance of this Act, .... after six months from the accrual of the
cause of such suit . ... "
True to Anglo-Indian forensic tradition, a
profusion of preeedential erudition has been placed for our consideration in the able submissions of the learned advocates on both sides.
C
Intricacy and refinement have marked the arguments and meticulous
judicial attention is necessitated to discover from the tangled skein of
case law the pertinent principle that accords with the intendment of
the statute, the language used, the commonsense and justice of the
situation.
D
E
F
G
ll
A relevant diary of facts and dates will help focus attention on
the pnmary legal question. The first plaintiff became entitled to claim
a consignment of 53 bnndles of mild steel plates despatched by a
Japanese exporter to be delivered at the port of Bombay.
The goods
were discharged in the docks into the custody of the. Bombay Port
Trust (the defendant, and now the appellant) on September 12, 1959.
The goods had been insured and the 5econd plaintiff is the insurer.
Within a week, that is, on Septem1'er 19, 1959, delivery of the goods
was applied for and was given but of only 52 bundles.
A week thereafter, the first plaintiff demanded the missing bundle, but was tcntalisingly put off from time to time by the defendant by letters of September 29, October 10, and December 4, 1959 assuring that a search
was in progress to trace the goods.
It is important at this stage to
notice that the plaintiff's letter of September 26, 1959 sought "information regarding the whereabouts of the above bundle so as to enable
us to clear the same at an early date".
The broad implication is that
at that time the first plaintiff had. no .idea where the missing bundle
was-in the vessel or the port.
It is not unreasonab1e to infer that
he did not then know, for sure, whether the undelivered item hall
been landed from the ship at all.
None of the three letters by the
defendant stated firmly that it had been discharged into the port, and
it is quite on the cards that part of the total consignment had
not
been discharged into the port, in these any thing-may-happen days of
expect the unexpected.
Significantly, the first plaintiff inquired of th:
Indian Maritime Enterprises, the agents of the Japanese vessel, whether the entire consignment of 53 bundles had been duly landed. The
reply received by the first plaintiff is meaningful in iliat the J ndian
Maritime Enterprises In their Jetter dated November 7, 1959, told the
first plaintiff that all the 53 bundles had been duly unloaded.
l t
inevitably follows that the earliest date when we can attribute to the.
plaintiff clear knowledge of the port· authorities having come
into
possession of the missing bundle was November 7, 1959. Of course,
400
SUPREME COURT REPORTS
[ 1974 l 3 s.c.R.
the Inquiry Section of the Alexandra Dock
of the defendant indifferently informed the first plaintiff even on December 4, 1959 that
the missing bundle was still under search and a definite reply regarding
the 'out-turn' of that item could be given only later when loading sheets
were fully checked. However, the first plaintiff by letter dated December 5, 1959 wrote to the port authorities that he had been intormed
by the agents of the vessel (The Indian Maritime Enterprises) that
the entire 53 bundles had been landed and desired '1o please let us
know immediately whether the bundle has been landed; if landed let
the information regarding the whereabouts and, if not, kindly confirm
the short landings".
Apparently, this was to make assurance doubly
sure which could be gained only when the defendant's officials
also
confirmed it.
Counsel for the plaintiffs, with sweet reasonableness,
urges that the interested ipse dixlt of the agents of the vessel may
not by itself be sufficient to impute clear knowledge of the discharge
from the ship into the port of goods of which the Port Trust disclaimed knowledge of whereabouts. Long later, on January 22, 1960,
the Port Trust infonned the first plaintiff
"that the bundle under
reference had been out-turned as landed but missing". Within a week
thereafter, the first plaintiff asked for a non-delivery certifkate so that
he could claim from the insurers the value of the article lost.
Such
a certificate was issued on March 1, 1960 and on May 12, 1960 a
statutory notice under s. 87 of the Act was issued, followed on June
IS, 1960 by the suit for the missing bundle or its value by way of
damages.
The deadly defence put forward by the defendant and reiterated before us with great plausibility, was that the suit
being
governed by s. 87 of the Act and the cause of actio11 having been
born on and limitation commenced to run from around September 19,
1959, the claim was stale, being well beyond six months and the
statutory notice of a month super-added.
The second plaintiff, insurer, having paid the value of the Jost
articles to the first plaintiff got itself subrogatcd to the latter's right,
and they together laid the suit before the Court of Small Causes:
That Court hdd 011 the merits that the d·ofendant had been negligent
in bestowing the basic care which as statutory bailee it was bound to
take, and on the prelimina1y pl.la of bar of limitation repelled it,
taking the view that non-delivery of a consignment could not attract
the shorter period prescribed in s. 87 of the Act. The decrees passed
was, however, set aside by the Full Court in appeal which held the
daim to fall within the ambit of the lesser limitation laid down by the
Act, and so beyond time.
The teetering course of the case brought
success to the plaintiffs in the High Court when a single Judge upset
the findin~ on limitation and directed disposal of the appeal on the
merits.
The last lap of the litigation has spurred them to this Court
where learned counsel have addressed arguments principally on tw0
facets of the plea of limitation .
. The primary qucsti~n is whether the present suit is one 'for any
thmg done, or purporting to have been do1w in pursuance of this
~cf.. ~he action is for non-delivery of on~ out of 53 bundles.
l lnmt1f[s counsel argues that an omission to do cannot be 'an act do11e
A
B
c
D
E
G
H
A
B
c
D
E
F
G
H
TRDSTEES BOMBAY PORT v. PREMIER AUTOS. (Krishna Tyer, J.) 401
or purporting to have been done'.
Again, the failure to do what
the Act mandates ·the Port Trust to do, viz., to deliver .consignments
to owners, cannot be 'in pursuance of this Act'. How caμ the statute
direct non-delivery and how can the Port officials reasonably conceive that not delivering the goods committed to their charge is in
pursuance of statutory duty ? The perverse verdict would then be
reached that violation of a law is fulfilment thereof. Embellished by
numerous rulings, Shri Cooper strove to convince us of the substance
of the further link in the chain of his case that the cause of action
for recovery of the value of the lost article could not spring to life
before the knowledge of the landing and loss was. brought home to
the plaintiff.
How can a party, other than one with uncanny powers
of extra-sensory perception, sue for recovery from a bailee of compensation for loss of goods at a time when he is ignorant of the key
fact that they have come into the latter's hands and have been lost ?
In short, for a cause of action for non-delivery by the bailee to materialise, scicnter that there has been delivery to the bailee and that it
has since become non-deliverable while in his custody, is a sine qua non.
Otherwise, suits for loss of goods would be some sort of a blind
man's buff game.
The Additional Solicitor General, armed with
many
decisions,
Indian and English, parried the thrust by urging the rival position that
an act includes an omission in circumstances like the present, that an
official may contravene the duty laid under an Act and may yet purport to act under it. so much so delivery of 52 out of 53 bundles,
impliedly omitting to deliver one item, is in pursuance of the statutory
scheme of accepting the cargo discharged from the vessel, warehousing
them and making them available for delivery to consignees. In his
submission, to dissect the integral course of statutory performance
and to pick out a minor component of 'omission' as constituting the
infringement of the owner's right which has given rlse to the cause
of action, is to misread the purpose and to re-write the effect of s. 87
and similar provisions in many statutes calculated to protect public
officer and institutions on a special basis.
He further contends that
even if, theoretically speaking, knowledge of the landing of the goods
may be an ingredient of the cause of action, correspondence between
the bailee and the owner regarding search for the landed goods is no
ground to postpone the accrual of the right to sue, and when in a
large consignment the bulk of it is delivered on a certain date the few
undelivered items should also be reasonably presumed as having been
landed and ready to be handed over,thus bringing into being, on such
short delivery, the· 'cause' to sue.
Likewise, \Vhcn the rules specify
a week of the landing (vidc s. 61A) within which the owner is
expected to take charge of the goods--and the Port Trust is absolved
from liability thereafter-that is indication of the reasonable limit of
ti111c for delivery.
Limitation begins to run when the goods should
rc~S<;>nab!y lmvc been delivered, ignoring operations for tracin.g the
mJSsmg goods.
The absurd result would otherwise be that the ri2ht
t.o sue would flicker fitfully as the search for the last bundle is protractmg and the Port Trust can indefinitely put off a claimant's suit by
persisting in vain searches for the pilfered article and sending soothing
402
SUPREME COURT REPORTS
( 1974 J 3 S.C.R.
letters that efforts to trace are 'in progress'. And more sinister is the
possibility of owners of considerable consignments, by oblique methods,
getting letters of promise of search despatched by Pon officials and
th\IS postpone the time for taking delivery, thereby saving immensely
on warehousing charges which are heavy in big cities.
Corruption
spreads where such legal construction protects.
The proponents. of both views have cited rulings in support but
the sound approach of studying for oneself the sense of s. 87 prompts
us to set it out together wi.th other cognate sections, get the hang
of the statutory scheme and read the plain meaning of the notice. and
limitation provisions.
"S. 87. No suit or other proceeding shall be commenced
against any person for any thing done, or purporting to have
been done, in pursuance of this Act, without giving to such
person one month's previous notice in writing of the intended
suit or other proceeding, and of the cause thereof, nor after
six months from the accrual of the cause of such suit or
other proceeding .. · .. "
"S. 61A(l). The Board shall, immediately
upon the
landing of any goods, take charge thereof, except as may
be otherwise provided in the bye-laws, and store such as
are liable in their opinion to suffer from exposure in any
shed or warehouse belonging to the Board.
(2) If any owner, without any default.on the 'part of the
Board, fails to remove any goods other than those stored
in the warehouses appointed by the Board for the storage
of duty paid goods or in warehouses appointed under sectietr
15, or licenced under section 16 of the Sea Customs Act,
1878, from the premises of the Board within seven clear
day& from the date on which such goods shall have been
landed, such goo<Js shall remain
on the premises of the
Board at the sole risk and expense of the owner and the
Board shall thereupon ~e discharged from all liability theretofore incurred bv them in respect of such goods."
"6 IB. The responsibility of the Board for the loss, destruction or deterioration of goods of which it has taken
charge shall, subject to the other provisions of this Act and
subject also in the case of goods received for carriage by
railways to the provisions of the Indian Railways Act, 1890
be that of a bailee under section 151, 152 and 161 of the
Indian Contract Act, 1872, omitting the words
"in the
absence of any special last-mentioned Act."
I,,et us interpret and apply.
Non-deliverv of an article is an
omission,
not an act and, in
· anv ;case, not one in pursuance of the Act, because the statute does
not ;Oirect the Port Trust not to deliver the goods received from the
B
c
D
E
G
H
A
B
c
D
E
.,
G
H
TRUSTEE$ BOMBAY PORT v. PREMIER AUTOS. (Krishna Iyer, J.) 403
~hips that call at the port.
This view has found favour with !he
High l.ourt.
With due deference to the learned Judge, we think
th1S approach to be roo hteral, narrow and impractical. For, inac·
tioo has· a i.-os11.ive side as where! a driver reflljes to n1ove his vehicle
from the mtdule of the road or even an operator declines to stop an
enl?Jne or a surgeon om.ts to take out a swab
of cotton after the
operation. Omission has an activist facet "like commission, more
so when there is a dullv Mt to omit.
Again, where a course of
conduct is enjoined by a law, the whole process pursuant to that
obligation is an act done or purporting to be done under that Act
although the comp0neuts of that comprehensive act may consist of
commissions and omissions.
A police11ian acts or purports to act
not only when he uses his lathi but also when he omits to open
the lock-uo to set the arrested free or omits to produce him before
a Mal!istrate.
The ostensible basis of the whole conduct
colours
both doinlts and defaults and the use of the wor'Js "purp01 ting
tn
have been done", in
their natural sweep,
cover the commissionomission complex.
A comate POint arises as to whether you
can
attribute the
neelect to comPly with a law as something done in pursuance of
that law.
Here again the fallacy is obvious. If under colour
of
office, clothed with the rules of authority, a person indulges in conduct not falling under the Jaw he is not acting in accordance with
the sanction of the statute or in bona fide execution of authority but
ostensib!v under
the cloak of statute. It is the apparel
that oft
proclaims the man· and whether anythin.g is done under, in pursuance
of .. or under colour of a law. merely means that the act is done in
apparent. though not real. cover of the statute. Broadly understood,
can the official when challenged fall back, in justification, on his official trappings?
A revenue officer distraining goods wrongfully
or
a municioal. officer receiving license fee from a non-licensee is violat~
ine the law but
purports to act under
it.
On the other hand, a
police officer who collects water cess or a municipal officer
who
takes another into custodv. is not by any stretch of language actiilg
in pursuance of or under the relevant Act that gives
him
power.
And certainlv not an act of takine bribe or committing rape.
Such
is the sense of the words we are calleU upon to construe. The true
meanine of such and similar words used in like statutes has been
set out bv Halsburv correctlv and concisely :
"An act mav be done in pursuance of or in the execution of the powers l!fanted by a statute, although that act
is prohibited by .the statute. A
person
acting under
statutory . powers mav erroneously exceed the powers given,
or inadeauatelv discharee the duties imposed, by a statute,
vet if he acts bona fid• in order to execute such powers or
to discharge such duties. he is considered as acting in pursvance of the statute.
Where a statute imposes a duty, the
omiS<ions to do something that oueht to be done in order
completely to perform the duly, or the continuing to leave
anv rnch dutv unperformed, amounts to an act done or
-404
SUPREME COURT REPORTS
( 1974) 3 S.C.L
intended to be dcme within the meaning of a statute which
A
provides a sDCCial period of limitation for such an act."
13rd edn .• vol. 24. pp.189-190).
A selective reference to the rulinJ!.S cited at the bar may now be
made. and. althouid> in this blurred area conflicting pronouncements
have made for confusion. a systematised presentation will yield the
clear inference we have reached without reference to the citations.
B
Jn one of the earliest cases under the Highway Act, the defendant surveyor of the perish of T., was charged with failure to remove the l!favel from the highway which
obstructed mil caused
nuisance to the 1>ublic and overturned the plaintiff's. catrlage.
It
was nroved that the defended was Jluilty of want to care in leaving
the l!favel there. and the Questions arose whether under · s. 1()9 of
C
the Hjghwav Act he was entitled to notice. Lord Denman, C.J., dis1>0sed of ihe matter terselv_:
"It is clear that the defendant is charged with a tort
committed in the course of bis official dutv; he is charged,
as survevor. with the positive act of leavi~ the gravel on·
t.he road. v.here it had been improperly placed.- for an unD
rrasonable ·time.
On that simple
ground, I think it clear
tbat he was entitled to notice."
J>atterscn J. considered the same point a little more at length taking
•he ''ie\v ·
·
" .... that the charge is not one of mere .omissions,
but ·of actuallv continuing the. nuisance.
That is a charge
of doing something wrong, of keeping the gravel in an
improper place. an act continued until the concurrence of
the mischief.
Is it then an act done in pursuance of the
st atu!e ? It is not denied that the heap of t(Tavcl . was put
t.here in pursuance of the statute; it could not be spread at
the same moment; the Question then would arise, whether
the lenl!lh of time during which it was kept in a heap was
reasonable er not.
The continuing, therefore, was a thing
c!one in uursuance of the statute."
Wightman J. struck a similar note. The learned Judge observed :
"The defendant is liable onlv bv virtue of his office.
He is charged · with permittin2 an obstruction to remain,
of which tlermission he is guiltv in his character of an offi- '
cer described in the Act of Parliament. He is, therefore,
under sev 109, entitled to a notice, in order to enable
him to tender amends:·
Thi• decision rendered around 130 years ago has a modern
freshness and it is remarkable that the languap;e of the statute construe<! bv the Judges there has a likeness to the one we are concerned
with here, namely, "anything done in· pursuance of or under the
authority" of statute.
E
F
G
H
-'
8
c
D
E
F
G
H
TRUSTEES BOMBAY PORT \', PREMIER AUTOS. (Krishna Iyer, ].)
405
Still earlier rulillJ!;S may be referreij to; for instance Palmer v. The
Gr1J11a Junction Railway Company('} where the same point was
niled, but where Baron Parke said :
"If the action was broul(ht against the railway company
for the ollllSsion of some duty imposed upon them by the
Act. this notice would be reQuired."
In another old .decision, Poulsum v. Thirst(') the coustruction of
the expression. -:lets "done or intended to be done under the powers
of the Metropolitan Board of Works, and fell for decision. Byles, J.
relied on Newton v. Ellia(') where also a similar set of words had
to be interpreted and "omitted to be done" was absent. Jn the case
<~.ecidecl hv Bvlcs. J.. the defendant
stopped
up the sewer,
and
nc~Jectcd to drain· it, thereby causing injury.
The learned Judge
held that the defendant's conduct must be looked at as a wholc, and
that he was entitled to notice of action.
The other two Judges
took the same viCw.
Newton v. Ellis(') decided in 1855 under s. 139 of the Public
Health Act, 1848, for injury caused by digging a hole on the road
without placing a light or signal there, turned on the need for notice
before summons. Earlier cases like Davis v. Curling(') \YCre referred
to and the conclusion reached that though the gravamen of the charge
against the defendant was the omission to place a light in the spot of
danger it attracted the formula "anything done or intended to be done
under the provisions of this Act"-comparable to the phraseology of
the Act which came under the judicial lens in Davis v. Curling 'things
dono in pursuance of or under the authority' of the Act. Coleridge, J.
observed with fe1icitous precisions :
"This is not a case of not doing; the defendant does something, omitting to securn protection for the public. He is
not sued for not putting up a light, but for the complex act."
Erle J. likewise said :
"Here the cause of action is the making the hole, compounded with the not putting up a light. When these are
blended, the result is no more than if two positive acts were
committed, such as digging the hole and throwing out the
dirt; the two would make up one act."
Arc we not concerned with a blended brew of act and omission, a
complex act, a compound act of delivery-cum-non-delivery, pursuant
to the statute without which the vinculum juris betv.·cen the Board and
the plaintiff did not exist?
lol/i[fee v. The Wallasey Local Board(') is a leading case, rightly
pressed for acceptance of its ratio by the learned Solicitor General.
Kesling, J., after finding for the plaintiff on negligence, focussed atten-
(I) 4 M. & W. 74~·
(3) 5 E. & B. 115; 24 L. J. (Q. B.) 337.
15) 8 Q. B. 286.
(2) (1867) 2 L. R. 449.
(4) 119 E. R. 424.
(6) (1873) L. R. 62.
406
SUl'llEMJ! COURT REPORTS
[ 1974 1 3 S.C.l\.
lion on the nature of t!iii act and the need for notice. He observed :
"As a matter of fact, therefore, I come to the conclusion
that the defendants were guilty of the negligence complained
of, and that that negligence was the cause of the accident;
and, as matter of law, I hold that negligence to give the
plaintiffs a cause of action against the local board.
. ·But, assuming th.at to be so, then comes the further ques-
~on .. whet.her the defendants are not absolved from liability
m this act10n, by reason of the absence of a notice of action.
For myself, I must express my regret that this case should
be decided upon such a point; but my opinion is that the defendants were entitled to notice. This question depends upon
the construction of the several Acts of Parliament which have
been placed before us."
. . . . . .
"Now the local board was originally constituted under the
Public Health Act, 1848; and it is not denied that, for anything done or intended to be done under that Act, they would
be entitled to a notice of action under s. 139."
.
•. . . . .
"That, however, does not dispose of the matter; a further
question arises, viz., whether the acts complained of here are
acts which could be done by the local board under the provisions of the Act of Parliament, so as to entitle them to a
notice of action." . . . .
.
"It has been suggested that protection is not intended to be
given by clauses of this description in cases of nonfeasance.
<o. i< clear, from the cases of Davis v. Curling,
Newton v. Ellis, Wilson v. Mayor, & c., of Halifax, and Sa/-
mes v. ludge, all of which seem to me to establish that a case
of what appears to be nonfeasance may be within the protection of the Act."
Brett, J, expressed himself equally unminicingly :
"Now. two objections were urged by Mr. Aspinnal. In the
first place, he says the thing complained of here is a mere
nonfeasance, and therefore not "an act done." If I rightly.
understand the judgments in former cases. the rule is this.-
where a man is sued in tort for the breach of some positive
duty imposed upon him by an Act of Parliament, or for the
omission to perform some such duty, either may
be
an
act done or intended to he done under the authority of the
Act, and if so oone or intended to bo done, the defendant is
entitled to a notice of action."
"In Wilson v. Mayo;,&. c. ~f Haliiax(1), Kelly, C.B., states
the proposition in those terms: "It has been urged on the
part of the plaintiff that the charge against the defend~ts
is not of any act done or intended to be done, but of an omission to erect or cause to be erected a fence between the footpath and the goit, and that the omission to do an act is not
- (Ii' Law Rep. 3 Ex. 114.-
A
B
c
D
E
r
G
H
A
B
c
D
E
F
G
H
TRUSTEES BOMBAY PORT v. PREM!E!' AUTOS. (Krishna Iyer, I.) 401
'an act done or intended to be done.' Some authorities have
been cited on both sides: but we think that, whatever may
ba the construction which might be put upon the words of the
st•tute if the question arose in· this case for the first time,
it is now settled by authority that an omission to do something
that ought to be done in order to the complete performance
of a duty imposed upon a public body under an Act of Parliament, or the continuing to leave any such duty unperformed, amounts to an act done or intended to be done, within
the meaning of these clauses requiring notice of action for the
protection of public bodies acting in the discharge of public
duties under Acts of Parliament."
"It would seem from these authorities that, where the
plaintiff is suing in tort, nonfeasance is to be considered as
"an act done," within such clauses as these.''
Mr. Cooper tried to distinguish Jolliffee's case but having given our
close' attention to the matter we decline to jettison this weigh•.y judgment.
Jollifjee's case was followed by the Privy Council in Queen v.
Williams(').
The Judicial Committee took the view that "an omission
to do something which ought to be done in order to the complete
performance of a duty imposed upon a public body under an Act of
Parliament, or ihe continuing to leave any such duty unperformed,
amounts to "an act done or intended to be done" within the meaning
of a clause requiring a notice of action."
A case which went up to the Privy Council from India under the
Calcutta Port Act, 1890, was decided on similar lines by the Judicial
Committee in Commissioner for the Porl of Calcutta v. Corporation of
Calcutta(').
Lord Alness observed :
"Reliance was placed by the respondents on the case
of the Bradford Corporation v. M,yers [(1916) I A.C. 242].
Now, inasmuch as that case related to the construction of the Public Authorities Protection Act (1893), which
contains language not to be found in the Indian statute, and
which omits language to be found in the latter, manifestly
the decision falls to be handled with care. In particular; the
English Act does not contain the words "purporting or professing" to act in pursuance of the- statute. Their Lordships
regard these words as of pivotal importance. Their presence
·in the statute appears to postulate 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. The English Act was properly treated by the House in the Bradford case as one
from which the words "profession er purporting"
were
omitted, and the observations of the House must, of course,
be construed secundum subjectam materiem."
(l) ([884) 9 L. R. 418.
2 [19311 64fA 363; 371.
408
SUPREME COURT REPORTS
I 1974 l 3 s.c.11..
In a different context though, the Privy Council had to deal with
a similar provision, namely, s. 197 of the Criminal Procedure Code,
1_n the well-known case of Gill v. The King('). Lord Simonds, speak·
mg for the Board, explained the position of law thus :
"A public servant can only be said to .act or to purport
to act in the discharge of his official duty, if his act is such as
to lie within the scope of his official duty. Thus, a judge
neither acts nor purports to act as a judge in receiving a
bribe, though the judgment which he delivers may be such an
act : nor does a Government medical officer act or purport
to act as a public servant in picking the pocket of a patient
whom he is examining, though the examination itself may be
such an act. The test may well be whether the public servant,
if challenged, can reasonably claim that, what he does, he
docs in virtue of his office."
It may be mentioned eveh here. that the Judicial Committee had
distinguished Bradford Corporation v. Myers(') on which consider- ·
able reliance was placed by Shri Cooper and also in several decisions
which took the opposite point of view. We need make no comments on
that decision except to stale that for exceedingly .excellent reasons the
Judicial Committee has put that ruling out of the way.
Shri Cooper brought to our notice the circumstance that Public
Acthorities Protection Act, 1893, brought in 'neglect and default',
which became necessary only because "any act done in pursuance ....
of any Act of Parliament .... " would. not otherwise comprehend
omissions and defaults. We are not impressed with this submission
and decline to speculate why a change of language was made if the
Jaw packed "omission" into "act".
·
Gill v. The King (supra), just referred to, affirms the careful analysis of the authorities by Varadachariar, J., in Hori Ram Singh v. The
Crown(') and also the ratio in Huntley's(')
case.
In Hori Ram's
case, which related to the construction of s. 197 of the Criminal Prbeedure Code ands. 270(1) of the Government of India Act, Varadachariar, J., brought out the true meaning of the words ''.act done or purporting to be done in the execution of his duty". The learned Judge
ob5crvcd :
"Apart from the principle that, for the purposes of the
criminal"Iaw, acts and illegal omissions stand very much on
the same footing, the conduct of the appellant in maintaining
the accounts, which it was his duty to keep, has to be dealt
with as a whole and the particular omission cannot of itself be
treated as an offence except as a step in the appellant's conduct in relation to the maintenance of the register which it was
his duty correctly to maintain."
Stress was laid rightly by the learned Judge on the relevance of public interest in protecting a public servant and in restrictions being placed
on an aggrieved citizen seeking redress in a court of Jaw, to point out
O) [1948],75 I. A .. 41; 59-60.
(2) (191611 A. C. 242'
(3) [1939] F. C.R. 159.
(4) (1944) F. C. R. 252.
A
B
c
D
E
F
G
H
A
B
c
D
F
G
TRUSTEES BOMBAY PORT v. PREMIER AUTOS. (Krishna Iyer, 1.) 409
that acts which have no reference to official duty should not come within
the protective umbrella of these statutory provisions. The learned Judge
insisted that "a11 act is not less one done or purporting to be done in
execution of a duty because the officer concerned does it negligently."
The true test, if we may say so with great respect, is whether the conduct of the public servant or public body, viewed as a whole, including
as it may 'omissions' also, be attributed to the exercise of office.
Sri Cooper reinforced his contrary argument by reliance on the case
of Revati Mohan Das v. latindra Mohan Ghosh(') which dealt withs.
80 of the Civil Procedure Code. That decision, however, is distinguishable and relates to an optional act or omission of a public officer where
it could not be designated that the failure to pay the debt by a manager
was an 'illegal omission' constituting an 'act' under s. 3 of the General
Clauses Act.
A decision of the Calcutta High Court (Commissioner for the Court
of Calc!ttta v. Abdul Rahim OOsma11 & Co.(2), turning on the construction of a similar provision (s. 142 of the Calcutta Port Act) covers
the various decisions, Indian and English, and after pointed reference to
A nzrik Singh's case reaches the conclusion :
"There must be a reasonable connection between the act
and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not
a pretended or fanciful claim, that he did it in the course of the
performance of his duty."
The Bench proceeded to set out the following propositions which meet
with our approval :
(a) In order to apply the bar under sec. 142 of the Calcutta Port Act, it is first te> be determined whether the act
which is complained of in the suit in question can be said to
come within the scope of the official duty of the person or persons who are sought to be made liable. This question can be
answered in the affirmative where there is a reasonable connec~
tion between the act and the discharge of the official duty.
(b) Once the scope of the official duty is determined, sec.
142 will protect the defendants not only from a claim based on
breach of the duty but also from a claim based upon an omission to perform such duty.
(c) The protection of sec.