Appellants herein had berry trees planted on their
land. From a nearby dam constructed and maintained by respondents 60,000 cusecs
of water was released which destroyed the plantation. Respondents blame the
heavy downpour which resulted in water levels of dam reaching alarming levels
due to which water had to be released. Else the rising water level would have
breached the dam. It is the case of
appellants that respondents had been negligent and had they controlled the
alarming level of water keeping in mind the coming monsoon season no such sudden
action was needed.
Thus appellants are claiming damages for loss of
crop on account of sheer negligent attitude of respondents. Whereas respondents
have raised the defence of ‘act of god’ pleading that heavy rains forced them
for sudden heavy release of water.
Evidences
before Trial Court and Court of appeal (HC) with their decision
Not much evidences have been lead by parties before
the trial court and serious deficiencies have been pointed by SC :
- Respondents have stored more than retention capacity of water in dam during month of June 1997 knowing fully well that in coming monsoon season water level would increase
- TC appointed court commissioners confirmed the loss of appellants through their reports adduced with photographs. They have noted that due to the alleged floods 1500 boar trees were uprooted and submerged in water
Both TC and HC decreed in favor of respondents
specifically labeling the loss due to ‘act of god’
“The trial court also
found that land of the appellants is situated
adjacent to the river bank and, therefore, due to heavy rain, the river could have overflown resulting in entering
of the water
into the fields of the appellants in any case. It further held that action of the respondents in releasing the water from
dam was a prudent action keeping in view that
minimum damage is caused to the public at
large because of the heavy rains, which is dependent
upon the nature.”
Pointing towards the
lack of evidence by appellants in support of their case (as no exact determination
of loss, price of produce allegedly destroyed) their prayer was dismissed by
trial court.
HC ruled that “it was a force majeure circumstance
and, therefore, the
appellants were not entitled to any compensation.”
Issues before SC
- Whether the act of releasing the water from the dam would amount to negligence on the part of the respondents or it was inevitable due to heavy rains and is to be treated as an 'act of God'?
- If the answer to the aforesaid question is in the affirmative, whether the appellants would be entitled to some compensation even in the absence of proof of actual/exact damage caused?
The
Case of Strict Liability: Rylands v Fletcher
(1868)
In Rylands v Fletcher the principle is well known:
a) If a person on his land brings and keeps
something which is likely to do mischief upon escape, such thing must be kept
in peril;
b) And if he does not do so resulting in escape of
that thing;
c) The person would be prima facie answerable for
damage which is the natural consequence of its escape
Blackburn J further expands his
principle by stating: “The person whose grass or corn
is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water
from his neighbour's reservoir, or whose cellar is invaded by the filth
of his neighbour's
privy, or whose habitation is
made unhealthy by the fumes
and noisome vapours of his
neighbour's alkali work is damnified without
any fault of his own;
and it seems but reasonable and
just that the neighbor who has brought
something on his own property which
was not naturally there, harmless to other so long as it is confined to his own
property, but which he knows to
be mischievous if
it gets on his
neighbour's, should be obliged to make good the damage which ensues if he does not
succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but
just that he should
at his peril keep it
there so that no mischief may accrue,
or answer for the
natural and anticipated consequences.”
Later on in Rickards
v Lothian [(1913) AC 263] a clarification was made to above principle that
there should be “non-natural use of land” to attract liability under strict
liability. Thus “It is not every use to which land is put that brings into play
this principle. It must be some special
use bringing with it
increased danger to
others, and must not merely be
the ordinary use of the land or such a use as is proper for the general benefit
of the community.”
In Read v J Lyons and Co [(1947) AC 156
(HL)] a further addition was made that there should be ‘escape of thing’ from
land of defendant. If no such escape of thing is shown by plaintiff he cannot
secure relief under this rule.
Various improvements were made by Indian
courts when strict liability principle was applied in national circumstances.
Some diluted the above rule of ‘non-natural use of land’ being crucial
ingredient to strict liability. One was St of Punjab v Modern Cultivators (AIR
1965 SC 17) where damages were sought for overflowing of water from breach of
canal. It was held that construction of canal was natural use of land but this
finding did not constrict the court in awarding damages.
In Jay Laxmi Salt Works (Pvt) Ltd v St
of Gujarat [(1994) 4 SCC 1] “ damage was caused by overflow of water from a reclamation bundh constructed by
the State of Gujarat for reclamation of vast area of land from saltish water of
sea. In this case, this Court held the
Government responsible as the said act was treated as violation of public duty
and negligence which lay in defective
planning and construction
of the bundh.
On that premise, damages
were awarded.”
The Court also remarked: “In a
welfare society construction of dam or bundh for the sake of community
is essential function and use of land or accumulation of water for the
benefit of society cannot be
non-natural user. But that cannot absolve the State from its duty of
being responsible to its citizens for such violations as are actionable and result
in damage, loss
or injury. What
is fundamental is injury and not the manner in which it has been caused.”
ACT OF GOD
The phrase is well-known exception to
principle of strict liability. In words of SC “ Generally, those acts
which are occasioned by the elementary forces
of nature, unconnected with the agency of man or other cause will come
under the category of acts of God……………………What
is important here
is that it
is not necessary that it should
be unique or that it should happen for the. first time.It is enough that it is extraordinary and
such as could not reasonably be anticipated.”
In S. Vedantacharya &
Anr. v. Highways
Department of South Arcot & Ors. [(1987) 3 SCC 400]
the situation was “State Government erected
a reservoir adjoining the plaintiff's land in order to
provide drinking water facilities
to a village
in the State.
The State acquired a part of the
plaintiff's land for the purpose of constructing a channel for carrying the
overflow of water from the reservoir to a Nalla which was at a distance of
about 1500 feet from the waste-weir of
the reservoir. This channel
was however not constructed
except to the extent of 250 feet on the side of
the Nalla. Due to very heavy rainfall the water
from the reservoir
overflowed into the waste-weir and thereafter flowed over the
plaintiff's land, causing considerable damage to the land and the crops
standing thereon.”
It was held: “It was held that
the fact that
the danger materialized subsequently by an act
of God was not a matter which absolved the State from its
liability for the earlier negligence in that no proper
channel for the flow or overflow of water from the waster-weir was constructed
by it in time; that the act of the State in constructing the reservoir for the
supply of drinking water to its citizens at best could be considered a welfare act
and not an
act in its
capacity as a sovereign; and that, therefore, the State
was liable in negligence for the loss caused to the plaintiff.”
Thus what would lead to decide the present factual matrix was whether damage
to appellant was due to some inevitable accident or unavoidable accident which
could not have been prevented by ordinary care and caution
The respondents have specifically refuted the appellants argument that
they failed to take pre monsoon season measures to keep check upon level of
water. But this is not supported by any evidence. There is nothing to show that
“ that the water in the dam was kept at reasonable and proper
level to take care of normal rains; the rains in the said monsoon season were
more than the ordinary rains which could not
be foreseen; and that the public purpose was served in taking the
decision to release the water which prevented larger catastrophe.”
In age of advance meteorological equipment and satellite data where
volume of rainfall could be roughly predicted, it was not prudent for
respondents to further unsubstantiated
arguments that release of water was forced due to sudden heavy rains. Hence
they were held responsible for negligent conduct and loss due to appellants
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