Allowed

Faiyazhussain Nazirahmed Ansari v. Ahmedabad Municipal Corporation

Gujarat HC18 Jul 2018FA/3906/2014

Case brief

AI extract

What is this about?

First appeal by parents whose son died when the Corporation's compound wall collapsed on him. The trial court dismissed their damages suit as time-barred under Section 487 of the Bombay Provincial Municipal Corporation Act. The High Court held the claim lay in tort on common law negligence, Section 487 and Article 72 did not apply, and Article 113 governed; the appeal was allowed.

What did the court decide?

Judgment and decree of the City Civil Court dismissing Civil Suit No.1219 of 2005 quashed and set aside; appellants entitled to recover Rs.5,80,800 with interest at 12% per annum from the date of suit

Faiyazhussain Nazirahmed Ansari Vs Ahmedabad… — Municipal and Town Planning | Gujarat HC (2018)

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C/FA/3906/2014 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/FIRST APPEAL NO. 3906 of 2014

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FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?	YES
2 To be referred to the Reporter or not ?	YES
3 Whether their Lordships wish to see the fair copy of the judgment ?	NO
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	NO
CIRCULATE THIS JUDGMENT IN THE SUBORDINATE JUDICIARY.

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FAIYAZHUSSAIN NAZIRAHMED ANSARI

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Versus

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AHMEDABAD MUNICIPAL CORPORATION

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Appearance:

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MR JIGAR G GADHAVI(5613) for the PETITIONER(s) No. 1,2 MR NIKUNT K RAVAL(5558) for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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Date : 18/07/2018

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ORAL JUDGMENT

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This First Appeal under Section 96 of the Civil Procedure Code is at the instance of the original plaintiffs and is directed against the judgment and order dated 3rd March 2011 passed by the City Civil Judge, Court No.11, Ahmedabad, in the Civil Suit No.1219 of 2005.

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Page 1 of 80

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It appears from the materials on record that on 3rd November 2001 at about 10:30 in the late evening the elder son of the plaintiffs, namely Shehjad Hussain, left his house for a cup of tea at a tea stall situated near the Vanijya Bhavan, Kankariya, Maninagar, Ahmedabad. While he was sitting next to the tea stall, a compound wall of about 100 feet height, constructed for the Metal Depot of the Ahmedabad Municipal Corporation, collapsed. As a result, the son of the plaintiffs got crushed beneath the debris. The deceased suffered serious injuries on his ribs, chest, back, spine and other parts of his body. The deceased ultimately succumbed to the injuries on 16th April 2002. The deceased was a tailor by profession and was earning about Rs.3,500=00 to Rs.4,000=00 per month.

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In such circumstances referred to above, the plaintiffs, as the parents of the deceased, preferred a civil suit in the City Civil Court at Ahmedabad, seeking compensation of Rs.5,80,800=00 from the Corporation towards damages.

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The Ahmedabad Municipal Corporation - original defendant, although served with the summons issued by the court, yet did not appear before the court. Even, written statement was not filed by the Corporation.

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Having regard to the pleadings, the court below framed the following issues at Exh.90 :

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"(1) Whether the plaintiffs prove that their son named Shehjad Hussain had died on 16.4.2002 on account of the tortuous action of the defendant wherein on 3.11.2001 a

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compound wall having height of about 100 feet had collapsed wherein the son of the plaintiffs became victim of the said occurrence ?

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(2) Whether the suit of the plaintiffs is proved to be not bad for statutory notice ?

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(3) Whether the plaintiffs are entitled for damages of Rs.8,00,000/- along with interest at the rate of 12% per annum from the date of the suit till realization as damages for the tortuous action of the defendant ?

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(4) Is the suit of the plaintiffs suffering from any impediment in grant of the relief prayed for ?

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(5) What order and decree ?

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The issues framed by the trial court referred to above came to be answered as under :

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(1) In the affirmative.

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(2) In the affirmative.

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(3) In the affirmative.

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(4) Not maintainable in view of Section 487 of the Bombay Provincial Municipal Corporation Act.

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The trial court recorded the following findings so far as the issues nos.1 to 3 are concerned.

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"6. In support of his case, the plaintiffs have examined himself at exh.31, one Rajendra T. Solanki at exh.36 and Dr. Kulbhushan S. Nayak, of LG Hospital at exh.49. The plaintiffs have also produced birth certificate of the deceased at exh.24, follow up card issued by LG Hospital at exh.23, Injury certificate of LG Hospital at exh.26, death certificate of the deceased at exh.27, Letter written to Kagdapith Police station under RTI Act, at exh.28, bills of medicines collectively at exh.38, income certificate of the deceased issued by Solanki Mens Wear at exh.37 and copy of statutory notice at exh.32 and acknowledgment receipt at exh.33.

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7. Upon perusal of the entire oral as well as documentary evidence it is to be noted that accidentally on 3/11/2001 a compound wall having height of 100 ft. had collapsed wherein the son of the plaintiffs had become victim and succumbed to the injuries sustained by him. Therefore, the plaintiff has claimed damages. It has come in their evidence that the son of the plaintiff was doing tailoring work and earning Rs.3500/- to Rs.4000/- per month and accordingly they have claimed damages.

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8. So far as occurrence of incident is concerned, of course no complaint has been lodged but a Janva Jog Entry was filed, a copy of which is produced at exh.23/8 was obtained by giving an application under R.T.I. Act. Of course it is not proved but said Janva Jog Entry is about the alleged incident. The plaintiffs have also produced a copy of newspaper at exh.23/9. Moreover, the plaintiff has deposed at exh.31 wherein, in terms, he had stated abut the incident.

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But it is not challenged in his cross examination. Moreover, Dr. Kulbhushan S. Nayak, RMO of LG Hospital was examined at exh.49 on behalf of the plaintiffs who has deposed referring the papers of the hospital and ultimately corroborated the say of the plaintiffs that the incident as alleged has occurred. Under these set of circumstances, deceased son of the plaintiff has suffered serious injuries and ultimately succumbed to the injuries is probable. Therefore, so far as issue No.1 is concerned there is no room for doubt and therefore it is answered in the affirmative.

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9. So far as statutory notice is concerned, a copy of it is produced along with acknowledgment receipt at exh.32 and 33 respectively. Upon perusal of the same it is clear that the plaintiffs have served a statutory notice and the same cannot be termed as bad statutory notice in any manner. Therefore, issue no.2 is answered in the affirmative.

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10. So far as quantum of damages are concerned, the plaintiff has adduced evidence that their son was earning Rs.3500/- to Rs.4000/- by doing tailoring work and in support of their claim, one witness has also been examined who is having his tailoring shop, vide exh.36. The said witness has stated that the deceased was doing tailoring work with him and the deceased was earning Rs.3500/- to Rs.4000/- per month. Therefore, I assess the income of Rs.4000/- per month of the deceased for calculating the damages. The birth date certificate of the deceased is produced at exh.24 wherein it is shown that the deceased was born on 15/10/1970. Therefore, at the time of accident, the deceased was 31 years. Now, considering the Second

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Schedule of the Motor Vehicles Act, the persons coming between the age group of 30 and 35 are entitled to multiplier of 17. Now, it is to be noted that the deceased was unmarried son and therefore as per the settled principle of law 1/3rd of his income i.e. 1300/- is required to be deducted by way of his personal expenses. Now, after deducting Rs.1300/- from Rs.4000/-, the dependency loss to the plaintiffs would come to Rs.2700/- per month and in the result it will be Rs.32400/- per annum. As decided above, the multiplier of 17 is to be applied in the instant case and therefore, the plaintiffs will be entitled to get Rs.5,50,800/- (31200 x 17) by way of dependency loss. The plaintiffs are also awarded a global amount of Rs.30,000/under other heads like mental agony, medical expenses, transportation etc. Thus, in all the plaintiffs are entitled to get Rs.5,80,800/- by way of damages.

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11. So far as rate of interest is concerned, the plaintiffs are entitled to get interest at the rate of 8% per annum from the date of suit till realization. Thus, issues No.1, 2 and 3 are answered accordingly."

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So far as the issue no.4 is concerned, the trial court recorded the following findings :

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"12. So far as issue No.4 is concerned, it is whether the suit of the plaintiff is suffering from any impediment? Upon perusal of the arguments advanced by LA Mr. Chhaya for the defendant and considering the arguments that the suit is bad for want of limitation, it is argued that as per section 487 of the B.P.M.C. Act, no suit shall be instituted against the

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Corporation after expiry of six months from the date of occurrence or from the date of cause of action. Surprisingly, LA for the plaintiff has not argued on this important point of limitation. It is the only argument of LA for the plaintiffs that LA for the defendant has not adduced any defence against his contention i.e. the defendant has not entered into witness box. But looking to the facts and circumstances of the case and as per section 487 of the BPMC Act which reads as under:

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487: Protection of persons acting under this Act against suits.

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(1) No suit shall be instituted against the Corporation or against the Commissioner, or the Transport Manager, or against any municipal Officer or servant in respect of any act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act:-

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(a) xxxxxxx

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(b) unless it is commenced within six months next after the accrual of the cause of action.

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(2) xxxxxxx

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(3) xxxxxxx

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13. Upon reading the construction of the above provisions, it is crystal clear that the accident occurred on 3/11/2001

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and therefore the cause of action arose on the said date. Then after the victim was hospitalized and remained bedridden for a long period. The treatment continued and unfortunately he died on 16/4/2002. So, on the said date i.e. 16/4/2002 we may consider that the cause of action has arisen. Then also, after the said date, within six months i.e. latest by 16/10/2002 the plaintiff ought to have filed the suit. But for the reasons best known to the plaintiffs, no proceedings appears to have been taken. In on record that after a long period the plaintiff has tried to bring his action within limitation by issuing a statutory notice on 4/3/2004. But as per the settled law, issuance of statutory notice is being delayed and therefore the suit cannot be said to be within limitation. Therefore, clearly, the suit is time barred. No explanation has been put forward by the plaintiff for such delay. Therefore the present suit suffers from the impediment of limitation and therefore no relief can be granted to the plaintiff. Therefore, issue NO.4 is answered in the affirmative.

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14. In view of my foregoing discussion, when the suit is dismissed due to impediment of limitation, no amount can be awarded to the plaintiff as calculated above. Therefore, the suit stands dismissed. Hence, following order is passed.

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ORDER

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The suit of the plaintiff fails and hence, stands dismissed with no order as to costs.

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Decree be drawn up accordingly."

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Thus, it appears that the trial court declined to grant the relief as prayed for on the ground that the suit was barred by the special period of limitation as prescribed under Section 487 of the Act. According to the trial court, the son of the plaintiffs succumbed to the injuries and died on 16th April 2002. The suit ought to have been filed within six months from 16th October 2002. However, the plaintiffs issued the statutory notice on 4th March 2004 to the Corporation and thereafter preferred the suit on 17th August 2004. By judgment and order dated 3rd March 2011, the suit came to be dismissed.

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Being dissatisfied with the judgment and decree passed by the trial court, the appellants - original plaintiffs are here before this Court with this present Appeal.

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SUBMISSIONS ON BEHALF OF THE APPELLANTS - PLAINTIFFS :

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Mr.Jigar Gadhavi, the learned counsel appearing for the appellant, submitted that the court below committed a serious error in dismissing the suit on the point of limitation. Mr.Gadhavi would submit that the trial Court committed a serious error in holding that Section 487 of the Act is applicable in the present case. The learned counsel would further submit that the findings as regards negligence and compensation recorded by the trial court are in favour of the plaintiffs. The Corporation has not filed any first appeal. Mr.Gadhavi would submit that in order to attract Section 487 of the Act, the suit must be for compensation for doing of an act or omission to do an act in pursuance of any enactment in force at the relevant

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point of time. To put it in other words, according to Mr.Gadhavi, the doing of an act or omission to do an act for which compensation is claimed must be an act or omission which is required by the statute to be done. The submission of Mr.Gadhavi is that his clients do not complain of any act or omission on the part of the Corporation in pursuance of the Act and based themselves on common law duty of care. The plaintiffs' action was founded on tort. The suit would be governed by Article 113 of the Limitation Act.

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In such circumstances referred to above, Mr.Gadhavi prays that there being merit in this First Appeal, the same be allowed The judgment and decree be quashed and the civil suit filed by the plaintiffs be allowed.

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Mr.Gadhavi, in support of his submissions, has placed reliance on, (i) a decision of the Supreme Court in the case of State of Andhra Pradesh v. Challa Ramkrishna Reddy and others, (2000)5 SCC 712, and (ii) a decision of this Court in the case of Popatlal Gokaldas Shah and another v. Ahmedabad Municipal Corporation, (2002)3 GLR 327.

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SUBMISSIONS ON BEHALF OF THE RESPONDENT - DEFENDANT :

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On the other hand, this First Appeal has been vehemently opposed by Mr.Raval, the learned counsel appearing for the Corporation. Mr.Raval would submit that no error, not to speak of any error of law, could be said to have been committed by the trial court in dismissing the suit on the point of limitation. According to Mr.Raval, Section 487 of the Act is enacted for the

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benefit of the local authority. By the limitation, which it imposes, it prevents belated, and in many cases, unfounded actions. According to Mr.Raval, if an act is done in this regard of the provisions of the statute or in breach of its provisions or in a manner not authorized by the Act, to such an omission the protection of immunity from suit after six months will be available.

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Mr.Raval invited the attention of this Court to Section 63 of the Act, 1949. Section 63 falls in Chapter VI. Chapter VI prescribes the duties and power of the municipal authorities and officers. It talks about obligatory and discretionary duties of the Corporation. Mr.Raval invited the attention of this Court to clause (8) to Section 63. Section 63(8) of the Act reads as under :

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"63. Matters to be provided for by the Corporation.-

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(1) It shall be incumbent on the Corporation to make reasonable and adequate provision, by any means or measures which it is lawfully competent to it to use or to take, for each of the following matters, namely:-

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(1) to (7) ***** ***** *****

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(8) the maintenance of a municipal office and of all public monuments and open spaces and other property vesting in the Corporation;"

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According to Mr.Raval, it is obligatory for the Corporation to maintain its municipal office, all public monuments and open spaces and other properties vested in the Corporation. Mr.Raval

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would submit that the compound wall which collapsed was of the ownership of the Corporation and it was the duty of the Corporation to take care and ensure that the same would not lead to any casualty or accident. The submission is that the Corporation could be said to be guilty of neglect or default in the execution of the Act. Any neglect or default in the execution of the Act would attract Section 487 of the Act. Mr.Raval also invited the attention of this Court to Sections 264 and 265 of the Act. Section 264 of the Act reads as under :

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" 264. Removal of structures, etc. which are in ruins or likely to fall.-

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(1) If it shall at any time appear to the Commissioner that any structure (including under this expression any building, wall, parapet, pavement, floor, steps, railings, door or window frames or shutter or roof or other structure and anything affixed to or projecting from or resting or any building, wall, parapet or other structure) is in a ruinous condition or likely to fall, or in any way dangerous to any person occupying, resorting, to or passing by such structure or any other structure or place in the neighbourhood thereof, the Commissioner may, by written notice, require the owner or occupier of such structure to pull down, secure, remove or repair such structure or thing or do one or more of such things and to prevent all cause of danger therefrom.

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Provided that when the notice as aforesaid is given to the owners of a structure, who is not himself the occupier thereof, a copy of such notice shall be given also to the occupier thereof if any.

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(2) The Commissioner may also, if he thinks fit, require the said owner or occupier by the said notice, either forthwith or before proceeding to pull down, secure, remove or repair the said structure or thing, to set up a proper and sufficient hoard or fence for the protection of passers by and other persons, with a convenient platform and hand-rail if there be room enough for the same and the Commissioner shall think the same desirable to serve as a footway for passengers outside of such hoard or fence.

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(3) If it appears to the Commissioner that the danger from a structure which is ruinous or about to fall is imminent, he may, before giving notice as aforesaid or before the period of notice expires, fence off, take down, secure or repair the said structure or take such steps or cause such work to be executed as may be required to arrest the danger.

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(4) Any expenses incurred by the Commissioner under subsection (3) shall be paid by the owner or occupier of the structure.

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(5)(a) Where the Commissioner is of opinion, whether on receipt of an application or otherwise, that the only or the most convenient mean by which the owner or occupier of a structure such as is referred to in sub-section (1) can pull down, secure, remove or repair such structure, is by entering any of the adjoining premises belonging to some other person the Commissioner after giving such person a reasonable opportunity of stating any objection may, if no

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such objection is raised or if any objection which is raised appears to him invalid or insufficient, by an order in writing authorise the said owner or occupier to enter such adjoining premises.

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(b) Every such order bearing the signature of the Commissioner shall be a sufficient authority to the person in whose favour it is made, or to any agent to person employed by him for this purpose, after giving to the owner of the premises reasonable written notice of his intention so to do, to enter upon the said premises with assistants and workmen, at any time between sunrise and sunset, and to execute the necessary work.

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(c) In executing any work under this section, as little damage as can be, shall be done to the adjoining owner's property and the owner or occupier of premises for the benefit of which the work is done, shall

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(i) cause the work to be executed with the least practicable delay;

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(ii) pay compensation to any person who sustains damage by the execution of the said work."

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Section 265 of the Act reads as under :

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"265. Periodic inspection of building.-

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(1) It shall be incumbent on the owner of every building to maintain every part thereof and everything appurtenant thereto in such repair as to present its becoming dangerous.

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(2) The Commissioner may, by written notice, require the owner of any building to get the building inspected at such intervals and in such manner as may be prescribed in the bye-laws.

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(3) The owner shall within two months of the inspection under sub-section (2), undertake such repairs as the inspection shall show to be necessary for the purpose of securing the stability of the structure within the meaning of section 264 after complying with all the provisions of this Act and the rules and bye-laws in regard to such repairs and shall, on completion of such repairs, submit to the Commissioner a certificate signed by the person who made the inspection, of his having carried out the repairs satisfactorily.

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(4) A report of every inspection made under sub-section (2) shall forthwith be submitted to the Commissioner by the person who carried it out and the Commissioner may take such action in respect of such building as he deems fit under this section or under any other provision of this Act if the owner fails to comply with the requirements of sub-section (3).

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(5) The expenses incurred by the Commissioner under subsection (4) shall be paid by the owner."

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Mr.Raval further submitted that even if it is assumed without admitting that Section 487 of the Act has no application in the present case, the suit was barred at the time of the filing of the same having regard to Article 72 of the Limitation Act,

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1963, because the action for compensation relating to tort for doing or omitting to do has to be brought within a period of one year from the date of the cause of action.

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In such circumstances referred to above, Mr.Raval prays that there being no merit in this First Appeal, the same may be dismissed.

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In support of his submissions, Mr.Raval has placed reliance on a Supreme Court decision in the case of Rajkot Municipal Corporation v. Manjulaben Jayantilal Nakum and others, (1997)9 SCC 552.

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ANALYSIS :

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Having heard the learned counsel appearing for the parties and having considered the materials on record, the points for my determination in this First Appeal are as under :

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(i) Whether the negligence as alleged on the part of the Corporation would fall within the realm of Law of Torts, thereby making them liable and responsible for the accident ?

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(ii) Whether the suit is barred by the provisions of Section 487 of the Bombay Provincial Municipal Corporation Act ?

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(iii) Whether the suit is in respect of a public duty which the local authority has to discharge under the statute or is it in respect of a private act or a private obligation which it owes to a private individual ?

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(iv) Whether the suit is barred by Article 72 of the Limitation Act ? and

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(v) Whether the present suit would be governed by Article 113 of the Limitation Act.

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As noted above, the plaintiffs have been able to successfully prove that the deceased suffered injuries resulting in his death on account of collapse of the compound wall of the Metal Depot of the Corporation. The trial court recorded a finding that the plaintiffs are entitled to compensation. Against such findings of the trial court, the Corporation has not filed any appeal, and in such circumstances, the findings recorded by the trial court are binding on the Corporation.

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The only question is with regard to the period of limitation to file the suit. It is not in dispute that the suit was not filed within six months from the date of the death of the son of the plaintiffs.

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What is Tort and what is Tortuous Liability :-

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The General Law of Tort

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"1201. Rights of action in tort: Those civil rights of action which are available for the recovery of unliquidated damages by persons who have sustained injury or loss from acts, statements or omissions of others in breach of duty or contravention of right imposed or conferred by law rather than by agreement are rights of action in tort. The proposition thus formulated shows that the nature of

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tort can, perhaps, best be approached by way of distinctions. The principal distinctions to be drawn are the distinction between an action in tort and an action in contract, and the distinction between a civil wrong and a crime, although the same circumstances may give rise to actions for breach of contract or in tort and although many tortuous acts are also crimes.

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"1202. The domains of the law of tort: The scope of the rights to relief made available by English law constitutes what has been termed the province of the law of tort. The historical origins of English jurisprudence and the consequential importance which was formerly attached to particular forms of action have led to the division of this province into distinct domains, for example trespass, nuisance and negligence, so that some jurists have preferred to consider this branch of the law as a body of rules establishing specific injuries and unconnected by any general principle of liability. However, whichever of these alternative analysis is preferred it seems indisputable that from time to time in the past the common law has recognised new duties and liabilities and has the capacity to do so in the future, although a cause of action must be found either on principle or authority if it is to be upheld."

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[ Re: Halsbury's Laws of England Fourth Edition Volume 45] ( page 558, 559) (para 1201, 1202 )

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"Damages essential mark of tort: Although a tort is a civil injury, not all civil injuries are torts, for no civil injury is to be classed as a tort unless the appropriate remedy for it is an

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action for damages. Such an action is an essential characteristic of every true tort."

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[ Re: Salmond & Heuston on the Law of Torts, Twentieth Edition, First Indian Reprint 1993 Edited by R.F.V.Heuston and R.A.Buckley, Page 9 Chapter 2 General Principles of Liability ]

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Definition of tortuous liability :-

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Winfield's definition of tort was as follows:-

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"Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages."

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[ Re. Winfield & Jolowicz on Law of Tort, Fifteenth Edition by W.H.Rogers, page 4 ]

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Constituents of Tort :

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"The law of torts is fashioned as "an instrument for making people adhere to standards of a reasonable behaviour and respect the rights and interests of one another. This it does by protecting interests and by providing for situations when a person whose protected interest is violated can recover compensation for the loss suffered by him from the person who has violated the same."

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General Principle of Liability :-

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"There are two views prevailing on the subject of existence of some broad unifying principle of all tortuous liability. The

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two views are set out in the question that SALMOND asked: "Does the law of torts consist of a fundamental general principle that it is wrongful to cause harm to other persons in the absence of some specific ground of justification or excuse, or does it consist of a number specific rules prohibiting certain kinds of harmful activity and leaving all the residue outside the sphere of legal responsibility". SALMOND preferred the second alternative and his book for this reason is still entitled as Law of Torts and not Law of Tort.

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WINFIELD on the other hand accepted the second alternative i.e. the narrow view only from the practical point of view as a day to day matter but he contended that "from a broader outlook there was validity in the theory of a fundamental general principle of liability, for if we take the view, as we must, that the law of tort has grown for centuries, and is still growing, then some such principle seems to be at the back of it". The entire history of the development of the tort law shows a continuous tendency, which is naturally not uniform in all common law countries, to recognise as worthy of legal protection of interests which were previously not protected at all or were infrequently protected and it is unlikely that this tendency has ceased or is going to cease in future. There are dicta both ancient and modern that categories of tort are not closed and that novelty of a claim is no defence. But generally, the judicial process leading to recognition of new tort situations is slow and concealed for judges are cautious in making innovations and they seldom proclaim their creative role. Normally a new principle is judicially

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accepted to accommodate new ideas of social welfare or public policy only after they have gained their recognition in the society for example in extra-judicial writings and even then the decision accepting the new principle is supported mainly by expansion or restriction of existing principles which "gradually receive a new content and at last a new form."

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[ Re: The Law of Torts, Ratanlal & Dhirajlal, 23rd Edition 1997 Edited by Justice G.P.Singh Page 21 General Principle of Liability ]

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The suit claim is founded upon the tortuous liability. In the law of torts, the negligence has two meanings; (1) an independent tort, with which we shall deal with later on, and (2) a mode of committing certain other torts. In this latter sense negligence is carelessness. In some cases, either negligence or wrongful intent is required by law as a condition of liability. Each involves a certain mental attitude of the wrong doer or the tort-feasor towards the consequences of his case. The willful wrongdoer is he, who desires to do harm; the negligent and wrongful intent are inconsistent and mutually exclusive states of mind. He who causes a result, intentionally, cannot also have caused it negligently, and vice versa. In the present case, the claim is based on tort of negligence.

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Negligence is, usually, accompanied by inadvertence, but it is not the same thing, and this coincidence is not invariable. Carelessness as to possible consequences very often results in a failure to bring those consequences to mind, like that, inadvertence. Commonly, therefore, the careless person not only

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does not intend the consequence but does not even advert to it; its possibility or probability does not occur to his mind. But it is not always so, for there is such a thing as willful, like that, conscious and advertent negligence. The wrong doer may not desire or intend the consequence but may yet be perfectly conscious of the risk of it. He does not intentionally cause the harm but he intentionally and consciously exposes others to the risk of it. It has been, therefore, described as 'an attitude of mental indifference to obvious risks'.

¶173

Ordinary meaning of the word in the law of torts is a high degree of carelessness. It is the doing of something which in fact involves a grave risk to others, whether the doer realises or not. Obviously, therefore, the test is objective and not subjective, as it is in criminal law.

¶174

The tort, negligence and inadvertenceness has been succinctly explained and expounded in the following decisions:

¶175

The decision of the House of Lords in Donoghue v. Stevenson, (1932) A.C.562 (HL) treats negligence, where there is a duty to take care, as a specific tort in itself, and not simply as an element in some more complex relationship or in some specialised breach of duty. Actions do not lie for a state of mind. Negligence is conduct, not a state of mind - conduct which involves an unreasonably great risk of causing damage. There is no necessary element of "fault" in the sense of moral blameworthiness involved in a finding that a defendant has been negligent. It

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is negligence in the objective sense that is referred to in the well known definition of Alderson B.

¶179

" Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. "

¶180

So also Lord Wright said:

¶181

"In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owning" .

¶182

There is one another interesting aspect of tort negligence which is required to be highlighted. It is emergence of liability without tort. In this connection, observations made by Salmond & Heuston on the Law of Torts, may be noted: (Twentieth Edition, R.F.V.Heuston and R.A.Buckley).

¶183

"In certain cases, liability is independent of intention or negligence. Liability in libel does not depend on the intention of the defamer, but on the fact of defamation; so too there is strict liability for damage done by a wild animal, or by the escape of dangerous things

¶184

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accumulated for some non-natural purpose (the rule in Rylands v. Fletcher); again, liability is strict when one is vicariously responsible for the acts of another. In cases such as these the security of the particular interest of the plaintiff is predominant over the defendant's interest in freedom of action. It is a mistake, however, to think of the predominance as complete. In appropriate cases defences such as act of God or act of a third party are available. Liability may be strict but it is never absolute.

¶187

The plea of inevitable accident is that the consequences complained of as a wrong were not intended by the defendant and could not have been foreseen and avoided by the exercise of reasonable care and skill.

¶188

An accident in its popular sense is any unexpected injury resulting from any unlooked-for mishap or occurrence. In law a happening is only regarded as an accident if it is one out of the ordinary course of things, something so unusual as not to be looked for by a person of ordinary prudence. So an ordinary fall of snow is not an accident, but only an incident which happens in the ordinary course of things. One form of inevitable accident is that which is due to an act of God, as when a car-driver has a sudden affliction, such as a stroke. The driver will not be liable if his actions were wholly beyond his control."

¶189

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In the realm of tort negligence, at times, it becomes difficult to establish the nexus, with the result or the consequence or the cause thereof by leading direct evidence. In order to mitigate such a contingency, a very interesting concept and philosophy of doctrine of 'res ipsa loquitur' has been evolved in English Law and we have also followed in tort negligence. Rule of 'res ipsa loquitur', in reality, belongs to law of tort. Where negligence is in issue, peculiar circumstances constituting the event or accident in a particular case might themselves proclaim in concordant, clear, consistent and unambiguous basis the negligence of somebody as a cause of the event or the accident. The primary facts, constituted from the record would give a rise to such a concept if cause of accident is unknown and no reasonable explanation as to its cause is coming forth from the opposite party. In such a fact situation, the maxim of 'res ipsa loquitur' comes into play.

¶192

It is, therefore, necessary to invoke such a doctrine in examining, determining and adjudicating upon the claim of compensation founded upon the tort negligence. The event or the accident must be a kind which would not happen in ordinary course of event or nature or thing if those who have the management and control of the thing has exercised due, appropriate and reasonable standard of care and caution. Further, the events are caused, the accident must be within the control of the defendant or the adversary. The reason for second requirement is that where the defendant or the adversary has the control of the thing which caused the injury, he was in a better position than the plaintiff to explain as to how the incident or the accident has occurred. Moreover, 'res ipsa loquitur' must

¶193

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not be speaking negligence but pin it on the defendant. In our country, the rules of evidence are governed by the Evidence Act, 1872, under which the general rule is with the burden of proving negligence as to the cause of the accident is on the party who propounds it. In order to lighten this burden, there are certain provisions and the doctrines, namely, (1) Permissive presumption, (2) presumption of fact, (3) rebuttable presumption of law (4) irrebuttable presumption of law.

¶196

This being an action in tort for damages on the ground of negligence, the legal burden of proof, no doubt, rests on the plaintiffs. It is not, however, always necessary that direct proof of negligence should be adduced by the plaintiffs. It is enough if they prove the circumstances from which a reasonable inference of negligence on the part of the defendants can be drawn. Negligence is not a question of evidence but it is an inference to be drawn from proved facts. The plaintiffs succeed if the facts proved are inconsistent with the diligence and care on the part of the defendants. There may be cases where the plaintiff proves the happening of the accident and nothing more. He may or may not be in a position to prove any specific act or omission on the part of the defendant. The mere happening of the accident itself may be more consistent with negligence on the part of the defendant than with other causes and if that is so, the Court finds negligence on the part of the defendant unless he gives a reasonable explanation to show how the accident may have occurred without negligence on his part. This maxim is known in legal parlance as 'Res Ipsa Loquitur'. The general purport of the words 'Res Ipsa Loquitur' is that the accident 'speaks for itself' or tells its story. The burden of proof will be on the defendant to

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explain and to show that the accident occurred without any fault on his part. It is not a rule of law but is merely a rule of evidence relating to burden of proof and nothing more (See Cole v. De Traflord No. 2 (1918) 2 KB 523). This is based on the theory that there are certain happenings which do not occur normally unless there is negligence. Therefore, in the case of such happening the claimant is entitled to rely, as evidence of negligence, upon the mere happening of such accident. (See S. K. Devi v. Uttam Bhoi, AIR 1974 Orissa 207). In the leading case of Scot v. London and Katherine Docks Co., (1865) 3 H and C 596, it was held as follows :

¶200

"Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."

¶201

In Syed Akber v. State of Karnataka, AIR 1979 SC 1848 : (1980) 1 SCC 30 : 1979 Cri LJ 1374, the Supreme Court. Considered the applicability of the maxim 'Res Ipsa Loquitur' in civil as also criminal cases in the light of the provisions of the Evidence Act and observed as follows :

¶202

"The rule of Res Ipsa Liquitur, in reality, belongs to the law of torts where negligence is in issue. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant,

¶203

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clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim Res Ipsa Loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. To emphasise the point, it may be reiterated in such cases, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use with due care. Further the event which caused the accident must be within the defendant's control. The reason for this second requirement is that where the defendant has control of the things which caused the injury, he is in a better position than the plaintiff to examine how the accident occurred."

¶206

In Municipal Corpn. of Delhi v. Subhagwanti, AIR 1966 SC 1750, the Supreme Court had to deal with a case where a clock tower owned by the Municipal Corporation and abutting the high way collapsed resulting in the death of some persons passing along the highway. It was held that the Municipal Corporation had a special obligation to ensure the safety of the structure and it was liable for damages for loss of life caused whether by patent or latent defects and that the principle of Res Ipsa Loquitur was attracted to the case.

¶207

In Narasappa v. Kamalamma, AIR 1968 Mys 345, a cement concrete beam under construction by a contractor under the control and supervision of the State Electricity Board suddenly collapsed causing the death of a workman. Though the cause of

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the accident was unknown and specific allegations of negligence were not proved, the Court, applying the maxim 'Res Ipsa Loquitur', drew a presumption as to negligence and held both the contractor and the Electricity Board liable in damages.

¶211

Collector, Ganjam v. Chandrama Das, 1975 ACJ 249, was a case in which the portico of a medical college building fell down causing the death of two persons. The Supreme Court held that the portico had fallen on account of the defect in construction and how it had happened is within the exclusive knowledge of the defendants and accordingly the Court, applying the principle of 'Res Ipsa Loquitur', awarded damages.

¶212

Syam Sundar v. State of Rajasthan, 1974 ACJ 296 : (AIR 1974 SC 890), is again a case where the Supreme Court held that the doctrine of Res Ipsa Loquitur is applicable when the cause of the accident is primarily within the knowledge of the defendant and the mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering damages.

¶213

In Ramesh Kumar Nayak v. Union of India, AIR 1994 Orissa 279, a Division Bench of the Orissa High Court was dealing with a case where a compound wall of the Post Office collapsed and fell on a person passing by, causing him injuries. In defence to the claim for damages, it was pleaded that the wall collapsed due to torrential rain and it was, therefore, attributable to a natural calamity. The Court, however, negatived the said contention and held that the Post Office was bound to ensure the safety of the wall and to see that it in no manner endangers

¶214

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any other's property or person and the inaction to maintain the wall in good condition can be said to be an act of negligence. It was further observed that if the wall was in good condition as alleged, it would not have collapsed for a length of about 30 feet as acceptedly happened. It can certainly be inferred from the aforesaid facts that the wall was not in good condition. The inaction to maintain the wall in a good condition whereby the property or person were endangered, can be said to be an act of negligence, because proper care was not taken. Accordingly the opposite parties were held liable for payment of compensation to the petitioner in that case.

¶217

The Supreme Court, in the case of Rajkot Municipal Corporation (supra), explained in detail the meaning of 'negligence' in the field of tort. In this case, after analysing the plethora of English and Indian case law on this subject, the Supreme Court held that negligence is failure to use such care as a reasonable, prudent and careful person would use, under similar circumstances. It is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances. Negligence also is an omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing or something which a reasonable and prudent man would not do. Negligence would include both acts and omissions involving unreasonable risk of having done harm to another. The breach of duty must cause damage. How much of the damage to be compensated by the defendant should be attributed to his willful

¶218

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conduct and how much to his willful negligence or careless conduct or remissness in performance of duty, are all relevant facts to be considered in a given act or omission in adjudging duty of care. The element of carelessness or the breach of duty and whether that duty is towards the plaintiff or the class of persons to which the plaintiff belongs are important components in tort of negligence. Negligence would, therefore, mean careless conduct in commission or omission of an act, whereby another to whom the plaintiff owed duty of care has suffered damage. The duty of care is crucial in understanding the nature and scope of tort of negligence.

¶221

It was also held that negligence connotes inadvertence to the consequences of his conduct which can be a measure of behaviour where one person had been careless in that he did not behave as a prudent man would have done whether by inadvertence or otherwise. The tort of negligence always requires some form of careless conduct which is usually, although not necessarily, the product of inadvertence. Not every careless conduct which causes damage, however, will give rise to an action in tort. The negligence lies in failure to take such steps as a reasonable, prudent man would have taken in the given circumstances. What constitutes carelessness is the conduct and not the result of inadvertence. Thus negligence in this sense is a ground for liability in tort.

¶222

In every case giving rise to tortuous liability, tort consists of injury and damage due to negligence. Claim for injury and damage may be founded on breach of contract or tort. The liability in tort may be strict liability, absolute liability or special

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liability. The degree of liability depends on degree of mental element. The elements of tort of negligence consist in (a) duty of care; (b) duty owed to the plaintiff; (c) careless breach of such duty. Negligence does not entail liability unless the law exacts a duty in the given circumstances to observe care. Duty is an obligation recognised by law to avoid conduct fraught with unreasonable risk of damage to others. The question whether duty exists in a particular situation involves determination of law.

¶226

SECTION 487 OF THE ACT AND THE PERIOD OF LIMITATION :

¶227

Let me now look into the main issue involved in this First Appeal as regards Section 487 of the Act. Section 487 of the Act reads as under :

¶228

"Section 487. Protection of persons acting under this Act against suits.- (1) No suit shall be instituted against the Corporation or against the Commissioner, or the Transport Manager, or against any municipal officer or servant, in respect of any act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act :-

¶229

(a) until the expiration of one month next after notice in writing has been in the case of the Corporation, left at the chief municipal office and, in the case of the Commissioner or of the Transport Manager or of a

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municipal officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney, advocate, pleader or agent, if any, for the purpose of such suit, nor

¶233

(b) unless it is commenced within six months next after the accrual of the cause of action.

¶234

(2) At the trial of any such suit -

¶235

(a) the plaintiff shall not be permitted to go into evidence of any cause of action except such as is set forth in the notice delivered or left by him as aforesaid:

¶236

(b) the claim, if it be for damages, shall be dismissed if tender of sufficient amends shall have been made before the suit was instituted or if, after the institution of the suit, a sufficient sum of money is paid into Court with costs.

¶237

(3) Where the defendant in any such suit is a municipal officer or servant, payment of the sum or of any part of any sum payable by him in, or in consequence of the suit, whether in respect of costs, charges, expenses, compensation for damages or otherwise, may be made, with the previous sanction of the Standing Committee or the Transport Committee from the Municipal Fund or the Transport Fund, as the case may be."

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Now Section 487 referred to above prescribes that no suit shall be instituted against the Corporation in respect of any act done or purported to be done in pursuance or execution or intended execution of the Act or in respect of any alleged neglect or default in the execution of the Act, unless it is commenced within six months next after the accrual of the cause of action. The crucial words in the section material for the purpose of the present appeal are in respect of 'any alleged neglect or default in the execution of the Act'. In every case, therefore, where the defence of action being time-barred is raised, it must be ascertained whether the act in respect of which the suit is filed is an act done or purported to be done in pursuance or execution or intended execution of the Act or in respect of any alleged neglect or default in the execution of the Act.

¶241

Now the test for the purpose of determining whether the alleged neglect or default in the execution of the Act is the direct result of some duty cast upon the Corporation or some authority conferred upon it by the Act. If the act in respect of which the suit is filed satisfies this test, Section 487 would apply and the suit would be liable to fail if it is not filed within six months next after the accrual of the cause of action. This test has been approved by a Full Bench decision of the Bombay High Court in the case of The Municipal Borough of Ahmedabad v. Jayantilal Chhotalal Patel, reported in 1947 Indian Law Reports 841. I may quote the relevant observations thus :

¶242

"Then we come to the leading case of Bradford Corporation v. Myers [1916] 1 A.C. 242. There the defendants, a

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municipal corporation, were authorised by Act of Parliament to carry on the undertaking of a gas company and they were also empowered to sell the coke produced in the manufacture of the gas. They contracted to sell and deliver a ton of coke to the plaintiff, and by the negligence of their agent the coke was shot through the plaintiff's shop window. The plaintiff filed a suit for damages in respect of this negligent act and the House of Lords held that the act complained of was not an act done in the direct execution of a statute, or in the discharge of a public duty or in the exercise of a public authority. It is important to note that this was not a suit on contract and the House of Lords refused to make the distinction that only suits on contract fell outside the ambit of the Act and suits which were ex delicto came within the mischief of the Act. Lord Buckmaster took the view that the plaintiff's claim was based on a private obligation which the Municipality owed to him; it was not a duty owed by the Municipality to the whole of the public. Lord Haldane in his speech at p. 252 succinctly enunciates the principle of law. This is what the learned law Lord says:

¶246

"For it seems to me that the language of Section 1 does not extend to an act which is done merely incidentally and in the sense that it is the direct result, of not the public duty or authority as such, but of some contract which it may be that such duty or authority put it into the power of a public body to make, but which it need not have made at all."

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Therefore, the act done must be the direct result of some duty cast upon the local body, or some authority conferred upon it. If it is the direct result of a contract which although the local body is empowered to enter into but is under no obligation to do so, then that act is not the act contemplated by the section.

¶250

Coming to our High Court, from the time when Mr. Justice Parsons and Mr. Justice Ranade in Municipality of Faizpur v. Manak Dulab (1897) I.L.R. 22 Bom. 637 decided that Section 48 of the Bombay District Municipal Act Amendment Act, which corresponds to Section 206 of the Bombay Municipal Boroughs Act, did not apply to a suit for the specific performance of a contract or for damages for breach thereof there has been a continuity of decisions on the same line till we come to the latest decision in Mandlik v. Jalgaon Municipality . The only discordant note has been struck by Sir Norman Macleod, Chief Justice, and Mr. Justice Shah in Baban v. Poona Municipality which really induced Mr. Justice Macklin and my learned brother Bavdekar to refer this matter to a Full Bench. In that case the facts were very similar to the facts before us, There too the District Municipality had deducted a certain amount from the deposit made by the contractor for the non-performance of the contract, and that Bench took the view that the suit was out of time as it fell under the provisions of Section 167 of the Bombay District Municipal Act. With great respect to that Bench no authority seems to have been cited before them and the judgment is not a reasoned one. Sir Norman Macleod came to that conclusion on the ground that as the

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Municipality obtained their powers to enter into this contract from the Act it follows that their powers to enforce the contract, according to the construction they put upon it, must also be in pursuance of the Act. With great respect that is an entirely fallacious proposition. Their power to enforce the contract arose from the contract itself and not in pursuance of the Act. This case was considered by another Divisional Bench in District Local Board, Poona v. Vishnu (1932) 35 Bom. L.R. 55 the Bench consisting of Mr. Justice Patkar and Mr. Justice Murphy. They followed the decision to which I have already referred in Municipality of Faizpur v. Manak Dulab, and held that Section 186 of the Bombay Local Boards Act (corresponding to Section 206 of the Municipal Boroughs Act) had no application to a suit to recover damages for breach of a contract. Discussing the case of Baban v. Poona Municipality, they sought to distinguish it on the facts of the case. In our opinion it is not possible to distinguish that case at all. In our opinion it does not incorporate a correct statement of the law and we hold that it was not rightly decided. Sir John Beaumont, Chief Justice, and Mr. Justice B.J. Wadia also considered the same question in Vishwanath Sadashiv v. Bombay Municipality. There they were considering Section 527 of the Bombay Municipal Act, which also corresponds to Section 206 of the Municipal Boroughs Act, and Sir John Beaumont at p. 691 says that that section did not cover acts which were done in pursuance of a contract which the local authority was empowered to enter into, but was not required to enter into, by its Act. He further says, "one has to see whether the act complained of was done pursuant to the direct requirements

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of the Act, or was done under some contract which the Corporation entered into under the powers conferred by the Act but which it was not compelled to enter into." And finally we have the decision of Mr. Justice N.J. Wadia and Mr. Justice Sen in Mandlik v. Jalgaon Municipality, which was considering this identical question, and they held that the section did not apply to suits based on contracts. Neither in the case in Vishwanath Sadashiv v. Bombay Municipality nor in Mandlik v. Jalgaon Municipality was the judgment of Sir Norman Macleod cited. We might point out that perhaps it would not be quite right to demarcate the line of cases falling within the ambit of the section and those not falling within the ambit of the section by dividing them into suits on contract and suits which are not on contract. As I have already pointed out, the House of Lords in Bradford Corporation v. Myers refused to accept that test as the correct test. A better and a proper test seems to be whether the suit is in respect of a public duty which the local authority has to discharge under the statute or is it in respect of a private act or a private obligation which it owes to a private individual."

¶257

I must, therefore, first ascertain what is the 'neglect' or 'default' in the execution of the Act in respect of which the suit is instituted by the plaintiffs against the respondent - Corporation and then see whether applying this test, the act alleged could be said to be 'neglect' or 'default' in the execution of the Act ? The short question which I must ask myself is, whether the act in respect of which the suit is instituted by the plaintiffs against the respondent - Corporation is the direct result of some

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omission, neglect or default in the execution of the Act or is it the direct result of negligence, for which, the Corporation is liable under common law, i.e. tortuous liability.

¶261

The main point as to limitation is based on the interpretation of Section 487 of the Act. Section 487 of the Act can be divided into four parts. The first part of Section 487 stipulates that no suit can be instituted against the Corporation in respect of any act done or purported to be done in pursuance or execution or intended execution of the Act, the second part stipulates that no suit can be instituted against the Corporation in respect of any alleged neglect or default in the execution of the Act, the third part deals with the question of notice preceding the suit and the fourth part is the one in controversy and it deals with the specific question of limitation. Section 487 of the Act stipulates that every action shall be commenced within six months after the accrual of the cause of action to file the suit.

¶262

In the plaint, the act complained of is the negligence on the part of the Corporation which is said to have resulted in the falling of the compound wall on the son of the plaintiffs. The question, therefore, is as to whether the action for damages by the plaintiffs on the ground of falling of the compound wall is a suit for anything done under the Act. There is no allegation by the plaintiffs that there was any positive act done by the Corporation which resulted in the falling of the compound wall. All that have been alleged as to the cause which led to the falling of the compound wall is that the Corporation, while the compound wall was standing, did not take due and proper care

¶263

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in maintaining and keeping it in good condition. Therefore, the application of the special limitation, referred to above, depends on two considerations; first, whether the expression 'anything done under this Act' is wide enough to cover also 'anything omitted to be done under this Act', and secondly, whether the omission alleged in this case against the Corporation is one which it should not have omitted to do under the Act. So far as the first point is concerned, the section itself is very clear. The words 'in respect of any alleged neglect or default in the execution of this Act' are of pivotal significance. The words 'neglect or default' in Section 487 should be taken to mean all those which may arise under the statute, by which it has been incorporated, or under law.

¶266

The liability against the Corporation on the facts alleged by the plaintiffs is based on common law and not on the statute. The general principle of common law is that every person and body must so manage and maintain the property under its control that it should not cause injury to others. To put it in other words, the plaintiffs do not complain of any act or omission on the part of the Corporation in pursuance of the Act and based themselves on common law duty of care. In such circumstances, the bar of Section 487 would not be attracted.

¶267

If any act done in pursuance of the Act or the Rules is the subject matter of the suit, the bar of limitation enacted in Section 487(1)(b) will operate. It must be referable to the specific provisions of the Act. The plaintiffs' action was founded in tort. They alleged that the compound wall fell on their son which ultimately led to the death of their son. The compound wall

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which collapsed vested in the Corporation and was maintainable at the public expense. The suit was brought against the Corporation for damages as the Corporation was negligent in maintaining the compound wall in good condition. In other words, the gist of the action is that the Corporation had not taken such care, as in all the circumstances was reasonably required to secure that the compound wall was not dangerous to a human life.

¶271

In my view, Section 63 of the Act does not save the situation. Section 63 of the Act makes it incumbent upon the Corporation to make reasonable and adequate provision for the maintenance of a municipal office, of all the public monuments and open spaces and other properties vesting in the Corporation. Section 63 which has been referred to above speaks of the future and not of the past. The learned counsel appearing for the Corporation has not been able to show anything, on the basis of which it could be said that the Corporation has provided by means of bye-laws or regulations about taking care of their own properties. No specific duty of care is thus enjoined by the Act. In such circumstances, there is no 'codified negligence' or 'statutory negligence' of which the plaintiffs could complain. The plaintiffs do not plead the specific breach of any provision of the Act. Their claim is founded on the general law of negligence.

¶272

In my view, to such a case Section 487 of the Act has no application. Undoubtedly, Section 63 cast an obligation or a duty to make reasonable and adequate provision, by any means or measures which it is lawfully competent to do to use or to take,

¶273

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for the maintenance of properties vesting in the Corporation. Until regulations or bye-laws are framed, there is no statutory duty of care. On framing the regulation, the common law duty of care will be transformed into a statutory duty. If reasonable care is not then taken, the Corporation will be guilty of statutory negligence. Section 487(1)(b) will then be applicable. Till then, the common law will supply the omission of the statutory regulations.

¶276

There can be an act done in pursuance of the Act. But, it is difficult to see how can there be an omission in pursuance of the Act. What the Legislature means is that if there is an act done by the Corporation or its officials in the exercise or purported exercise of a statutory power, they will have the protection of the Act, i.e. they cannot be sued after six months. Neglect or default in the execution of the Act is also on the same footing. Positive acts and neglect of duty are thus placed on the same footing provided they are in respect of the statutory provisions. If it is an act of commission or an act of omission and is traceable or referable to the statute, the bar of Section 487(1)(b) shall apply. Of the positive acts the source must be the statute. The Legislature must have conferred statutory powers to do the act. Similarly, for faults of omission. If an appeal has to be made to the statute, the bar on Section 487(1)(b) will apply. The difficulty is to draw a line between the class of cases that are within and those that are without the statute. But a court of construction must remember that Section 487(1)(b) is a restriction of ordinary rights and, therefore, I should not read anything more in the words used than what they express or of necessity imply.

¶277

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In Selmes v. Judge, 1871 Lr 6 Qb 724(6), 727 Blackburn J., speaking of a similar provision, said "It has long been decided that such a provision as that contained in this section is intended to protect persons from the consequences of committing illegal acts, which are intended to be done under the authority of the Act of Parliament, but which,by some mistake, are not justified by its terms,and cannot be defended by its provisions."

¶280

Section 487 is enacted for the benefit of the local authority. By the limitation, which it seeks to impose, it prevents belated and in many cases unfounded actions. The critical expression in Section 487 is "in pursuance of". "Pursuant to" is defined by the Oxford Dictionary to mean, inter alia, 'in accordance with', 'consequent and conformable to'. An act may be said to be done in pursuance of the Act if the statute authorises that specific act. If the act complained of is within the terms of the statute, no protection is needed for the plaintiff has suffered no legal wrong.

¶281

If an act is done in disregard of the provisions of the statute or in breach of its provisions or in a manner not authorised by the Act, to such an omission the protection of immunity from suit after six months will be available.

¶282

The plaintiffs do not rest their case on any statutory duty. Nor on any act or neglect having reference to the statute. Nor on something founded on the Corporation's statutory powers or duties. The Corporation is not guilty of any neglect or default in the execution of any statutory duty, since no statutory duty

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rested upon them. On the plaintiffs' case the Corporation is guilty, and only guilty of a neglect or default, in the discharge of a duty imposed upon it by common law, namely, a duty to take care. But if the duties which the common law would of itself impose are also imposed by the statute, then the statutory provision such as Section 487 would apply.

¶286

All that Section 487 says is that where proceedings are taken against the Corporation or a municipal official for any act done in pursuance of the Act, or any public duty imposed by the Act, or for any neglect or default in the execution of such statutory powers or duties, the ordinary right of the subject to the remedy is to be cut down by the stringent provisions to time. If the action is commenced more than six months after the neglect the statute will apply and it must be held that the action is too late and barred.

¶287

It is difficult for me to take the view that a suit founded on the tort of negligence, such as the present one, will be barred under Section 487 of the Act. In taking the aforesaid view, I derive support from a Full Bench decision of the Lahore High Court in the case of Mahomad Sadaat Ali Khan v. Administrator, Corporation of City of Lahore, AIR 1945 Lahore 324. The following question was referred to the Full Bench for its opinion :

¶288

"When a plaintiff claims compensation for damage said to have been caused by the failure of a local body to maintain its water system in proper order, is the suit governed by Art.2 or Art.36, Limitation Act ?"

¶289

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Justice Mahajan (As His Lordship then was), by his separate judgment, held as under :

¶292

"Article 2 runs thus:

¶293

"For compensation for	Ninety	When the act or
doing or for omitting to	days.	omission takes place."
do an act alleged to be
in pursuance of any enactment in force for
the time being in
British India.

¶294

Article 36 is as follows :

¶295

"For compensation for any malfeasance,	Two years.	When the malfeasance, misfeasance or non-
feasance independent		feasance takes place."
of contract and not
herein specially providedfor.

¶296

"...It is clear that of the language of this Act had been adopted by the framers of Art.2, Limitation Act, the case of default by a municipal corporation and the failure on its part to maintain its water system in proper order resulting in damage to the plaintiff would be governed by this article. It would clearly be a default in the execution of a public duty by the corporation. The question, therefore, is whether a default of a public duty by a corporation or by any person is within the scope of the Indian statue, as it is within the clear language of the Act of Parliament. My answer is in the negative because the language of Art.2 is not as wide as is the language if the English statute. It is less comprehensive in terms and scope. It gives protection only for doing or omitting to do an act alleged to be in pursuance of a statute

¶297

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and does not proceed further. It does not provide for cases of any alleged neglect or default in the execution of a duty or authority. It is confined to cases where any act is done in the honest belief that it is being done in pursuance of a statute or in the execution of an act an omission is made. In the honest belief that such an act is not required to be done under the statue. In my judgment, this article has a limited scope and application, and comes into only where specific acts under cover of the statute are being done or executed. It does not apply to cases of performance or non-performance of statutory duties in general and in their wider sense. The best illustration that I can think of to explain my meaning is furnished by the decision of the Allahabad High Court in 41 ALL.219. A court amin in that case was charged with the execution of a statutory act, namely, the sale of the property of a judgment-debtor tendered decretal debt to the amin on the date fixed for the sale and before its commencement, he, the amin, was bound to accept it and was also bound to stop the sale. The court amin in this case wrongfully declined tom accept the money in the honest belief that he was not bound to do so. In other words, he omitted to do an act which the statute stated he should do. The amin further proceeded to sell the property contrary to the provisions of the stature in the honest belief that he was entitled to do so. Therefore, in the execution if the warrant if sale, which was a statutory act, the amin performed an act (of selling the property) which he honestly believed to be pursuant to a statute, though in the state of facts that existed, he should not have done it, but he believed it to be otherwise. He exceeded his power. In the performance of the same

¶300

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statutory act, he omitted to do an act(that is, of receiving the money when tendered) in the honest belief that he was justified by the statute not to receive it, though in fact the statutory direction was the other way. The emphasis in the article, in the article, in my opinion, is on the word ‘act’ which ordinarily would include an ‘omission’ , but in this article the word ‘act’ cannot include an omission, because it has been specially provided for. The omission is in the doing of an act, which act is honestly believed to be justified by the statute. Unless an act is being done, the article does not come into play. When a statute says that a public body will keep its water mains in good repair, it is lying down a statutory duty and is not directing a particular or specific act being done by the public authority. Article 2, Limitation act, does not concern itself with performance or non-performance of such duties, nut has application as soon as in performance of those duties that public body or any official employed by that body starts execution of any act; in other words takes into hand particular job to fulfill or to discharge the statutory duty. If in the execution of that act, he acts in excess of his powers, or there is an omission in the doing of that act, the article in my view comes into play...."

¶303

"...My learned brother Rahman has fully dealt with them. All I wish to say is that there is no well considered decision in support of either view which can furnish a guide in solving this problem. In my view, the decisions that applied Art 36 to cases of municipal corporations failing to keep their water mains in good repair laid down sound law on the subject and should be followed. Even if Art. 2 had any application to

¶304

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such cases, question would still arises whether in the case of leakage of water from municipal water mains where damage results from the recurrence of that leakage from day to day, the provisions of S. 23, Limitation Act, would not bring the suit if a plaintiff in a particular case within limitation...."

¶307

The Lahore Full Bench judgment, referred to above, has been expressly approved by the Supreme Court in the case of State of Punjab v. Modern Cultivators, AIR 1965 SC 17. The Supreme Court observed as under :

¶308

"The second point raised by the defendant was one of limitation. It was contended on behalf of the defendant that the case was governed by Art. 2 of the first schedule of the Limitation Act. It is not in dispute that if that article applied, the suit would be out of time. That article relates to a suit "for compensation for doing or omitting to do an act alleged to be in pursuance of any enactment". It was said that the Northern India Canal and Drainage Act, 1873 imposed a duty on the defendant to take care of the canal banks and its failure to do so was the omission to do an act in pursuance of an enactment within the article. I have very grave doubt if this interpretation of Art. 2 is correct. There is authority against it : see Mohammad Sadaat Ali Khan v. Administrator Corporation of City of Lahore, ILR (1945) 26 Lah 523 : (AIR l945 Lah 324) (FB). But apart from that I find nothing in the Canal Act imposing any duty on the defendant to take care of the banks. We were referred to Ss. 6 and 15 of that Act. Both are enabling sections giving power to the State Government to do certain acts. Under S. 6 it has power to enter on any land and remove any obstruction and close any

¶309

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channels or do any other thing necessary for the application or use of the water to be taken into the canal. This obviously does not impose any duty in connection with the canal bank. Section 15 gives the power to the canal authorities in case of accident happening or being apprehended to a canal to enter upon lands of others and to do all things necessary to repair the accident or prevent it. This section again has nothing to do with taking care of the canal banks. Therefore, even assuming that the defendant's interpretation of Art. 2 is correct, this is not a case to which it may apply. I wish however to make it clear that nothing that I have said here is to be read as in any way approving the defendant's interpretation of Art. 2. Therefore the defendant's contention that the suit was barred by limitation also fails."

¶312

In the case of the Corporation of Calcutta v. Asoke Kumar, AIR 1928 Cal 743, where the Corporation was sued for recovery of a sum of money belonging to an employee of the defendant Corporation by reason of the fact that he was a contributor to the Provident Fund, it was observed by Rankin, C.J., in dealing with the argument based on the question of limitation with reference to the special provision of S. 538, Calcutta Municipal Act which corresponds to S. 535, Bengal Municipal Act, 1932,

¶313

"It says certain suits should be commenced within four months after the accrual of the cause of action. The learned Judge has rightly refused to entertain that argument because that section applies to suits against the Corporation in respect of any act purporting to be done under the Calcutta Municipal Act or under any rule or bye-law made thereunder. This is not a suit against the Corporation for any

¶314

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act which they justify or can justify under the powers conferred by the Calcutta Municipal Act of 1923."

¶317

The principle laid down in the above passage receives some support also from the observations of their Lordships of the Judicial Committee in the case of AIR 1934 PC 96 at p. 97 (E). Reference may also be made to the case of - 'Jatindra Nath Pal v. Corporation of Calcutta', AIR 1945 Cal 144 (I), where 'the question for paying the salary of an employee of the Calcutta Corporation was concerned. It was observed by Gentle, J.

¶318

"the failure by the Corporation to pay the salary was clearly not an act purported to be done under the Act."

¶319

It was further observed :

¶320

"The Act does not empower the Corporation to refuse or to fail to pay salaries to their servants and officers."

¶321

I may also make a reference to the well-known decision in Sharpington v. Fulham Guardians, 1904-2 Ch 449. There the guardians for the parish of Fulham entered into a contract with the plaintiff for the execution of certain works consisting of altering and adding to an old mansion-house, for the purpose of carrying out their public duties. The works were completed and were paid for. The plaintiff then claimed an additional sum by way of damages for loss alleged to have been caused by negligence and frequent changes of plans by the defendants. The matter was referred to arbitration, and there the defendants, inter alia, took the plea that the claim was for neglect or default in the execution of the defendants' public duty and that the proceedings had not been commenced within 6 months as

¶322

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¶324

required by Section 1 of the Public Authorities Protection Act, 1893. That Act, inter alia, gave the protection for "any act done in pursuance, or execution, or intended execution of any Act of Parliament, or of any public duty or authority". Farewell J., held as follows, -

¶325

"The public duty which is here cast upon the guardians is to supply a receiving house for poor children a breach or negligent performance of that duty would be an injury to the children, or possibly to the public, who might be injured by finding the children on the highway. In order to carry out this duty they have power to build a house or alter a house, and they accordingly entered into a private contract. It is a breach of this private contract that is complained of in this action. It is not a complaint by a number of children or by a member of the public in respect of the public duty. It is a complaint by a private individual in respect of a private injury done to him. The only way in which the public duty comes in at all is, as I have pointed out. that if it were not for the public duty any such contract would be ultra vires . But that would apply to every contract. I cannot find any ground for saying that this particular contract comes within the Act. I think it is clear that what is complained of is a breach of a private duty of the guardians to a private individual."

¶326

The decision in Sharpington's case, 1904-2 Ch. 449, came up for consideration in Bradford Corporation v. Myers, (1916) 1 AC 242. There the defendants a municipal corporation, were authorised by the Act of Parliament to carry on the undertaking of a gas company and were bound to supply gas to the

¶327

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inhabitants of the district. They were empowered to sell coke as a bye-product. The defendants contracted to sell and deliver some coke to the plaintiff. By negligence of their agent the coke was shot through the plaintiff's shop window. He commenced an action for negligence after more than six months and the defendants pleaded the bar of Sec. 1 of the Public Authorities Protection Act, 1893. Lord Buckmaster held that the act complained of was negligence in breaking the plaintiff's window, and that it arose in the execution of a private obligation which the defendants owed by contract to the plaintiff for breach of which no one but the plaintiff could complain, so that the case clearly fell outside the area of the statutory protection. The following extract from the speech of Lord Buckmaster brings out his view point clearly :-

¶330

"In other words, it is not because the act out of which an action arises is within their power that a public authority enjoy the benefit of the statute. It is because the act is one which is either an act in the direct execution of a statute, or in the discharge of a public duty, or the exercise of a public authority. I regard these latter words as meaning a duty owed to all the public alike or an authority exercised impartially with regard to all the public. It assumes that there are duties and authorities which are not public, and that in the exercise or discharge of such duties or authorities this protection does not apply."

¶331

On his part, Viscount Haldane expressed the view that more could not be read in the words used than they expressed or was of necessity implied, and he did not think that they could be properly extended so as to embrace an act which was not done

¶332

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¶334

in direct pursuance of the provisions of the statute, or ha the direct execution of the duty or authority. He then made the following graphic observation, -

¶335

"What causes of action fall within these categories it may be very difficult to say abstractly or exhaustively. It is hardly easier to define a priori the meaning of being done directly than it is to define the number of grains that will make a heap. But just as it is not difficult to tell a heap when it is seen, so it may be easy at least to say of certain acts that they are not the immediate arid necessary outcome of duty or authority in a particular case."

¶336

While holding against the appellants, he expressly upheld the view taken by Farewell J., in 1904-2 Ch 449.

¶337

In the case on hand, the bundle of facts constituting the cause of action which has accrued to the plaintiffs are :

¶338

(1) The ownership and possession of the compound wall vesting in the Corporation;

¶339

(2) Its maintenance by the Corporation;

¶340

(3) Fall of the compound wall over the deceased and the death consequent to the injuries sustained; and

¶341

(4) The causa proxima, i.e. the immediate cause of action is the fall of the compound wall over the deceased.

¶342

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¶344

In the case of Municipal Corporation of Delhi v. Smt.Sushila Devi and others, (1999)2 SCR 1198, the Supreme Court had the occasion to consider Section 478 of the Delhi Municipal Corporation Act, 1957, which is by and large peri materia to Section 487 of the present Act. In the said case, one person died consequent to the injury caused on account of fall of a branch of a tree standing on the road. It was argued that the Municipal Corporation was negligent in performing its duty under the Common Law and, therefore, liable in damages to the claimants for the injury caused to the deceased by falling of the branch of the tree and the consequences flowing therefrom. On behalf of the Delhi Corporation, it was submitted that it is an authority governed by the Act and the claimants ought to have served a legal notice of two months' duration under sub-section (1) of Section 478 of the Act and the suit should have been instituted within a period of six months from the date of accrual of the cause of action, which having not been done, the suit was barred by time. The Supreme Court, while negativing the contention canvassed on behalf of the Corporation, observed as under :

¶345

"478. Notice to be given of suit - (1) No suit shall be instituted against the Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any municipal officer or other municipal employee, in respect of any act done, or purporting to have been done, in pursuance of this Act or any rule, regulation or bye-law made thereunder until the expiration of two months after notice in writing has been left at the

¶346

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municipal officer and in the case of such officer employee or person, unless notice in writing has also been delivered to him or left at his office or place of residence, and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and places of residence of the intending plaintiff, and unless the plain contains a statement that such notice has been so left or delivered.

¶349

(2) No suit, such as is described in sub-section (1) shall unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.

¶350

(3) Nothing in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit."

¶351

A bare reading of Section 478 (1) shows that its applicability is attracted to a suit filed 'in respect of any act done or purporting to have been done' in pursuance of the Act or Rules, Regulations or Bye-laws made thereunder. The learned counsel for the Corporation submitted that an act includes an omission as well. The Court has found an omission on the part of the Municipal Corporation in discharging its duty to take care and therefore under subSection (2) the limitation for filing the suit was six months from the date of accrual of cause of action, i.e., 18th and 19th August, 1964.

¶352

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The contention has to be rejected forthwith. The bundle of facts constituting the cause of action which has accrued to the claimants are - the ownership and possession of the tree vesting in the Corporation, its maintenance by the Corporation, fall of the branch of the tree over the deceased and the death consequent to the injury sustained. The causa proxima, i.e., the immediate cause of action is the fall of the branch of the tree over the head of the deceased. The fall of the branch of the tree cannot be attributed to any act done or purporting to have been done in pursuance of the Act etc. by the Municipal Corporation or any officer or employee thereof. The liability has arisen and has been sought to be enforced by the claimants under the law of torts. The finding recorded in the suit and in the Letters Patent Appeal is one of negligence on the part of the Municipal Corporation. To such an action Section 478 does not apply at all. The suit filed within a period of two years from the date of accrual of cause of action was governed by Article 72 of the Limitation Act, 1963 and was well within limitation. The plaintiffs' action was founded in tort. The plaintiffs have not rested their case on any statutory duty on the part of the Corporation and failure or negligence in performing such duty.

¶355

One of the findings recorded in the suit and upheld in the Letters Patent Appeal by the Division Bench is that the tree in question was a dead tree. It had no bark, foliage or buts. On behalf of the plaintiffs, a Botany Professor was examined as an expert witness who testified that a tree which had no bark was dried up and dying. From the testimony of the

¶356

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¶358

Garden Superintendent examined on behalf of the Corporation also it was found that the tree was dead, dried and dangerous. The Deputy Commissioner, Horticulture examined on behalf of the Corporation admitted that the tree looked like a partly worn out tree. The Division Bench has upheld the finding recorded by the learned Trial Judge that the Horticulture Department of the Corporation should have carried out periodical inspections of the trees and should have taken safety precaution to see that the road was safe for its users and such adjoining trees as were dried and dead and/or had projecting branches which could prove to be dangerous to the passers-by were removed. This having not been done, the Municipal Corporation has been negligent in discharging such duty as is owed to the road users by the adjoining property owners, especially the Municipal Corporation. The finding has been arrived at on appreciation of evidence by the learned Trial Judge as also by the Division Bench and we find ourselves in entire agreement with the said finding.

¶359

The law is stated in Winfield and Jolowicz on Tort (13th, 1989 ed., p.415) in these words :

¶360

"If damage is done owing to the collapse of the projection on the highway or by some other mischief traceable to it, the occupier of the premises on which it stood is liable if he knew of the defect or ought, on investigation, to have known of it. At any rate this is the rule with respect to a thing that is naturally on the premises e.g. a tree."

¶361

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¶363

In Clerk and Lindsell on Torts (16th, 1989 ed., at pages 546547 para 10.122) the law on trees is summarised as follows :

¶364

"The fall of trees, branches and other forms of natural growth is governed by the rules of negligence. When trees on land adjoining a public highway fall upon it, the owner is liable if he knew or ought to have known that the falling tree was dangerous. He is not bound to call in an expert to examine the trees, but he is bound to keep a look out and to take notice of such signs as would indicate to a prudent landowner that there was a danger of a tree falling..........the land-owner was held liable when the tree which fell had been dying for some years before and had become a danger which should have been apparent to an ordinary land owner."

¶365

In Charlesworth & Percy on Negligence (8th, 1990 ed., at page 668) the law is stated in these terms :

¶366

"........when a tree, which had been dying for some years and should have been known to be dangerous by an ordinary landowner, fell and caused damage, the owner was held liable. (Brown V. Harrison (1947) W.N.191).

¶367

In Hale vs. Hants 1947 (2) All England Reports 628, which is a case of branches of a tree having struck the windows of an omnibus and a piece of glass having struck the plaintiff in the eye, it was held that in the absence of any reason to

¶368

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¶370

suspect danger from an overhanging tree or some similar obstruction a driver who is driving close to the kerb when his vehicle is struck by the branch of the tree is not making an unreasonable use of the highway. It was further held that the county council should have known that trees grow and throw out their branches and therefore it was their obligation to see that the tree in its natural growth was curbed in such a way as not to hinder the reasonable use of the highway.

¶371

By a catena of decisions, the law is well settled that if there is a tree standing on the defendant's land which is dried or dead and for that reason may fall and the defect is one which is either known or should have been known to the defendant, then the defendant is liable for any injury caused by the fall of the tree (see Brown Vs. Harrison (1947) 63 Law Times Reports 484; Quinn Vs. Scott (1965) 1 W.L.R. 1004, Mackie Vs. Dumbartonshire County Council, (1927) W.N. 247. The duty of the owner/occupier of the premises by the side of the road whereon persons lawfully pass by, extends to guarding against what may happen just by the side of the premises on account of anything dangerous on the premises. The premises must be maintained in a safe state of repair. The owner/occupier cannot escape the liability for injury caused by any dangerous thing existing on the premises by pleading that he had employed a competent person to keep the premises in safe repairs.

¶372

In Municipal Corporation of Delhi Vs. Subhagwanti and Ors. AIR 1966 SC 1750 a clock tower which was 80 years old collapsed in Chandni Chowk Delhi causing the death of a number of persons. Their Lordships held that the owner

¶373

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could not be permitted to take a defence that he neither knew nor ought to have known the danger. "The owner is legally responsible irrespective of whether the damage is caused by a patent or a latent defect," - said their Lordships. In our opinion the same principle is applicable to the owner of a tree standing by the side of a road. If the tree is dangerous in the sense that on account of any disease or being dead the tree or its branch is likely to fall and thereby injure any passerby then such tree or branch must be removed so as to avert the danger to life. It is pertinent to note that it is not the defence of the Municipal Corporation that vis major or an act of God such as storm, tempest, lightning or extraordinary heavy rain had occurred causing the fall of the branch of the tree and hence the Corporation was not liable.

¶376

In our opinion the High Court was right in holding the Municipal Corporation negligent in performing its duty under the common law and therefore liable in damages to the plaintiffs for the injury caused to the deceased by fall of the branch of the tree and the consequences flowing therefrom."

¶377

Mr.Raval, would submit, pointing out Section 264 of the Act referred to above, that it is a statutory obligation on the part of the Corporation to remove all those structures which are in a dilapidated condition and are likely to fall or, in any way, dangerous to any person occupying, resorting to or passing by such structures. According to him it is not in dispute that the compound wall of the Metal Depot of the Corporation collapsed and the son of the plaintiffs died on account of the injuries suffered on various parts of the body. In such circumstances, it

¶378

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¶380

could be said that there was omission on the part of the authorities of the Corporation in taking due care in this regard, and once there is a breach of any statutory provision of the Act, then Section 487 of the Act would come into play. Once Section 487 of the Act comes into play, then the suit has to be filed within the period of limitation.

¶381

It appears that to salvage the situation and as a last ditched effort, the Corporation has gone to the extent of admitting that it was at fault in not keeping the compound wall of its ownership in a good condition. As the Corporation wants this Court to dismiss the appeal by affirming the findings of the trial Court as regards the suit being time-barred, reliance is being placed on Section 264 of the Act.

¶382

In my view, Section 264 of the Act has no application. It is a general provision with regard to removal of structures which are in ruins or likely to fall. The duty is cast upon the Commissioner, if he comes to know about any structure in a ruinous condition and likely to fall, thereby endangering the life of any person. By a written notice, the owner or occupier of such structure can be directed to pull down, secure, remove or repair such structure. In the facts of the present case, it cannot be said that the suit of the plaintiffs was based on neglect or default in complying with Section 264 of the Act.

¶383

Mr.Raval placed reliance on one decision of the Bombay High Court in the case of Transport Manager, Poona Municipal Transport and Undertaking v. Maharashtra State Road Transport Corporation, 1967(69) BLR 869. In the said case, the suit arose against the Poona Municipal Corporation out of

¶384

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¶386

collision between the motor vehicle belonging to the plaintiff on the one hand and the Corporation (defendants) on the other. The plaintiff's case was that the collision was the result of the negligence of the driver of the vehicle of the defendants and the plaintiff had, by such negligence, suffered damages claimed in the suit. The collision occurred on 14th September 1960. The defendants contended that by reason of the provisions in Section 487 of the Bombay Provincial Municipal Corporations Act, 1949, the suit was time-barred. In connection with the cause of action in the suit, a notice under that section was necessary. A notice, having not been served in accordance with the provisions in the section, the suit was not maintainable. The trial Court allowed the suit in favour of the plaintiff by observing that the Act 'comes into force only when the act is done under the said Act'. The trial Court took the view that running the transport undertaking cannot be said be an act done under the said Act, though the Corporation may carry on such an undertaking. Such findings recorded by the trial Court did not find favour with the High Court. The High Court allowed the appeal and dismissed the suit holding as under :

¶387

"[3] Now, these findings of the learned Judge are patently erroneous. The learned Judge failed to notice the provisions in the Act relating to the obligations of a Municipal Corporation to run public transport and numerous provisions in the Act in that connection. Mr. Dalvi for the defendants has rightly referred to the provisions in Sections 2(70), 4(1) (D) & (E), 25(1), 40, Chapter XX containing Sections 341-362 and Section 481(2). These sections relate to (i) definition of a transport undertaking, (ii) Transport Manager being one of the authorities under the Act, (iii) appointment of Transport

¶388

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Committee by the Corporation and (iv) appointment of Transport Manager. The Chapter XX relates to "the operation of the Undertaking and the Construction and Maintenance of "Works" and provides inter alia for levy of fares and charges, acquisition and disposal of property, matters relating to officers and servants, revenue and expenditure of the Transport Fund and accounts of the Transport Undertaking. Sub-section (2) of Section 481 provides that in relation to legal proceedings the word "Commissioner" in Sub-section (1) shall apply as if the word meant "Transport Manager'' and for such other matters.

¶391

[4] The relevant part of Section 487 runs as follows:

¶392

"487. (1) No suit shall be instituted against the Corporation..., or the Transport Manager,..., in respect of any act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act:

¶393

(a) until the expiration of one month next after notice in writing has been,... left at the chief municipal office..., stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney, advocate, pleader or agent, if any, for the purpose of such suit, nor

¶394

(b) unless it is commenced within six months next after the accrual of the cause of action.... "

¶395

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¶397

[5] Now, having regard to the sections which I have referred to above, it was not possible for Mr. Agarwal for the plaintiff to deny that provision was made in the Act to enable the Corporation to run Municipal public transport for the benefit of the general public. In the present case, apparently, the Poona Municipal Corporation was running the Poona Municipal Transport in accordance with and in the manner authorised by the provisions which I have referred to above. The findings that the learned Judge made were not justified in view of the above provisions. It is abundantly clear that defendant No. 1 Corporation was running the Poona Municipal Transport, being the defendant No. 2 undertaking, and the driver who was running the vehicle in question was doing so in pursuance of the provisions in the Act. The act of driving was in execution of the Corporation's duties to run the Poona Municipal Transport.

¶398

[6] Mr. Agarwal argued that there was no authority in the driver of the vehicle of the defendants to run it negligently. For that reason, the provisions in the Section 487 were not applicable. There is no substance in the argument. The act of driving was authorised to be undertaken by the Act. The section provides for serving of the notice when the authorised act is alleged by a plaintiff to have been done negligently. That was exactly the case in this suit. The plaintiff's allegation was that the driver of the defendants' vehicle drove the same negligently. That being the cause of action in the suit, notice under Section 487 was absolutely essential. The suit was liable to be filed within six months from the date of the accrual of the cause of action. The

¶399

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¶401

plaintiff's suit was filed on August 6, 1962. The cause of action had accrued in September 1960. The suit was filed beyond six months from the date of the accrual of the cause of action. The suit was accordingly not maintainable by reason of failure to serve notice 'under Section 487. The suit was also barred by time by reason of the provisions in the section."

¶402

In my view, the Bombay High Court decision does not save the situation for the respondent in the present case. The facts of the case before the Bombay High Court were altogether different. In the said case, the act of driving was authorized to be undertaken by the Act. The authorized act was alleged by the plaintiff to have been done negligently. Such was his case in the suit. The allegations levelled by the plaintiff were that the driver of the defendant's vehicle drove the same negligently. Such being the cause of action in the suit, notice under Section 487 was essential.

¶403

ARTICLES 72 AND 113 OF THE LIMITATION ACT :

¶404

As regards the Limitation Act, let me look into the Articles 2, 22, 36, 115 and 120 of the Limitation Act, 1908 (old Limitation Act) which reads as under :

¶405

Description of Suit.	Period of Limitation.	Time from which period begins to run.
2.- For compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in India.	Ninety days.	When the act or omission takes place

¶406

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¶408

22.- For compensation for any other injury to the person.	One year.	When the injury is committed.
36.- For compensation for any malfeasance, misfeasance or non-feasance independent of contract and not herein specially provided for.	Two years.	When the malfeasance or non-feasance takes place.
115.— For compensation for the breach of any contract, express or implied, not in writing registered and not herein specially provided for.	Three years.	When the contract is broken, or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs, or (where the breach is continuing) when it ceases.
120.- Suit for which no period of limitation is provided elsewhere in this schedule.	Six years.	When the right to sue accrues.

¶409

Let me now look into Articles 55, 72, 82 and 113 of the Limitation Act, 1963, which reads as under :

¶410

Description of Suit.	Period of Limitation.	Time from which period begins to run.
55.- For compensation for the breach of any contract, express or implied, not herein specially provided for.	Three years	When the contract is broken or (where are successive breaches) when the breach in respect of which the suit is instituted occurs or (where the breach is continuing) when it ceases.
72.- For compensation for doing or for omitting to do an act alleged to be inpursuance of	One year.	When the act or omission takes place.

¶411

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¶412

any enactment in force for the time being in the territories to which this Act extends.
82.- By executors, administrators or representative under the Indian Fatal Accidents Act, 1855 (XIII of 1855)	Two years.	The date of the death of the person killed.
113.- Any suit for which no period of limitation is provided elsewhere in this Schedule.	Three years.	When the right to sue accrues.

¶413

Having regard to the facts of this case and the evidence on record, I am of the view that Article 72 of the Limitation Act is not applicable. The protection under Article 72 can be claimed only when the act has been performed under colour of statutory duty. Article 72 applies only if an act is alleged to be done in pursuance of any enactment in force at the time of doing of the act.

¶414

Article 72 of the Limitation Act, 1963, relates to the suits of the description which are for compensation for doing or omitting to do an act alleged to in pursuance of any enactment in force for the time being in the territories to which the Limitation Act extends. The period of limitation prescribed is one year. The time from which this period would begin to run is when an act or omission takes place. In the Limitation Act, 1908 (old), Article 2 corresponded to Article 72 and was pari materia except that the limitation prescribed was 90 days. Article 113 of the Limitation Act, 1963, is a residuary Article. It applies to any suit for which no period of limitation is provided elsewhere in the Schedule of the Act. The limitation period under this Article is three years, which will begin to run when right to sue accrues.

¶415

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¶416

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¶417

In State of Punjab vs. Modern Cultivators, AIR 1965 SC 17, the original action by the plaintiff was of damages on the ground of inundation of his land because of breach of canal which was under the management of the defendant. The Court held that Article 36 of Limitation Act, 1908, would apply and not Article 2 of the Limitation Act, 1908, by observing that Article 2 cannot apply to cases where the act or omission complained of is not alleged to be in pursuance of statutory authority. Article 2 cannot apply to omission in following the statutory duties because it cannot be suggested that they are in pursuance of any enactment. Cases of malfeasance 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 Article 2 but the act of omission must be one which can be said to be in pursuance of an enactment. Here the suit was for compensation for damages consequent on a break in the canal of August 15, 1947. The only act or omission could be the opening and dosing of the channel for silting operations. That way before June 1946. The third column of Article 2 provides the start of the limitation of 90 days when the act or omission takes place. The period of limitation in this case would be over even before the inquiry if that were the starting point. It was held,

¶418

"Article 2 of the Limitation Act is not attracted to a case like the present where the damages sustained by the plaintiff are not the result of anything done by the state in pursuance of a statutory power exercised by it or by reason of an act which could properly be said to have been performed in the purported exercise of a statutory power."

¶419

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¶420

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¶421

Article 72 of the Limitation Act, 1963 (Article 2 of the Limitation Act, 1908), operates in altogether a different area. The said Article relates to a suit for compensation for doing or omitting to do an act alleged to be in pursuance of any enactment in force. The act or omission contemplated in this Article is one done in pursuance to a statutory authority. When a person acts under statutory power, he may be erroneously exceeded the powers or may not be able to adequately perform his duties under the statute, yet when he acts bonafide in discharge of his duties, he is entitled to protection for such act. The object of Article 72 is to protect such bonafide acts or omission of the persons acting under the statute.

¶422

The words in pursuance of any enactment in force in Article 72 are of vital importance. The expression indicates that the act or omission has to be in exercise of statutory power flowing from the enactment. Article 72 would thus apply in a specific situational context where an act or omission in discharge of a particular statutory duties, which again flow from enactment in force is pointed out. When a compound wall vesting in the Corporation collapses and causes damages, such event could not be connected as referable to or in pursuance of any duty or obligation under any enactment. Therefore, such an incident would not come within the purview of Article 72.

¶423

In State of Andhra Pradesh vs. Challa Ramkrishna Reddy, (2000)5 SCC 712, the Supreme Court discussed the conditions of applicability of Article 72 vis-a-vis Article 113 and stated that the two Articles apply in different way and to different situations. It observed thus:

¶424

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¶425

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¶426

"These articles, namely, Articles 72 and 113 are applicable to different situations. In order to attract Article 72, it is necessary that the suit must be for compensation for doing or for omitting to do an act in pursuance of any enactment in force at the relevant time. That is to say, the doing of an act or omission to do an act for which compensation is claimed must be the act or omission which is required by the statute to be done. If the act or omission complained of is not alleged to be in pursuance of the statutory authority, this article would not apply. This article would be attracted to meet the situation where the public officer or public authority or, for that matter, a private person does an act under power conferred or deemed to be conferred by an Act of the legislature by which injury is caused to another person who invokes the jurisdiction of the court to claim compensation for that act. Thus, where a public officer acting bona fide under or in pursuance of an Act of the legislature commits a tort, the action complained of would be governed by this article which, however, would not protect a public officer acting mala fide under colour of his office. The article, as worded, does not speak of bona fide or mala fide but it is obvious that the shorter period of limitation, provided by this article, cannot be claimed in respect of an act which was malicious in nature and which the public officer or authority could not have committed in the belief that the act was justifiable under any enactment."

¶427

Therefore, in a suit for compensation for the damages suffered by the plaintiff which was on the allegation of

¶428

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¶429

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¶430

defendant's non-feasance which was in the nature of omission in performing or discharging obligation, governing Article would be 113 which is a residuary Article, under which the period of limitation would be three years.

¶431

Challa Ramkrishna Reddy (supra) relied on Modern Cultivators (supra) and also referred to the decision in Mohamad Sadat Alikhan vs. Administrator, Corporation of State of Lahore [AIR 1945 Lahore 325 (F.B.)] and Secretary of State for India in Counsel vs. Londa Colleary Company Limited [AIR 1936 Patna 513]. The Supreme Court also referred to with the approval of the decisions of High Court on the aspect. The said observation may also be profitable extracted:

¶432

"In Jai Lal v. Punjab State (AIR 196 Delhi 118) it was held by the Delhi High Court that protection under Article 72 could be claimed only when the act was done under the colour of statutory duty but if the person acted with the full knowledge that it was not done under the authority of law, he could not claim the benefit of the shorter period of limitation prescribed under this article."

¶433

"In Jaques vs. Narendra Lal Das, AIR 1936 Cal. 653, it was held that this article would not protect the public officer acting mala fide under the colour of his office. To the same effect is the decision of the Punjab High Court in State of Punjab vs. Lal Chand Sabharwal, AIR 1975 P&H 294. In Punjab Cotton Press Co. Ltd. v. Secy. of State, AIR 1927 PC 72, where the canal authorities cut the bank of a canal to avoid accident to the adjoining railway track and not to the

¶434

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¶435

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¶436

canal and the plaintiff's adjacent mills were damaged, it was held that Article 2 was not applicable as the act alleged was not done in pursuance of any enactment. A Full Bench of the Allahabad High Court in Pt. Shiam Lal vs. Abdul Rao, AIR 1935 All 538, held that if a police officer concocts and reports a false story, he is not protected by Article 2 of the Limitation Act, which would apply only where a person honestly believing that he is acting under some enactment does an act in respect of which compensation is claimed. But where the officer pretends that he is so acting and knows that he should not act, Article 2 would not apply."

¶437

Having regard to the evidence on record, the accident occurred on 3rd November 2001 and the deceased passed away on 16th April 2002. The suit came to be filed on 17th August 2004, i.e. within three years from the date the son of the plaintiffs passed away.

¶438

In taking the aforesaid view as regards the applicability of Section 113 of the Limitation Act, I am supported by two decisions of this Court; (i) Popatlal Gokaldas Shah and another v. Ahmedabad Municipal Corporation, AIR 2003 (Guj) 44, and (ii) Judgment rendered in the Second Appeal No.57 of 2013 dated 14th March 2013 in the case of Gujarat Electricity Board and another v. Ahir Bhimshi Mepa.

¶439

Mr.Raval, the learned counsel appearing for the Corporation, placed reliance on a Supreme Court decision in the case of Rajkot Municipal Corporation v. Manjulaben Jayantilal Nakum and others, (1997)1 GLH 198. In the said case, the deceased, while he was walking on a footpath on the way to his

¶440

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¶442

office, a roadside tree suddenly fell on him, as a result of which he sustained injuries on his head and other parts of the body and later died in the hospital. The respondents filed suit for damages in the sum of Rs.1 lac from the appellant-Corporation. The trial court decreed the suit for an amount of Rs.45,000=00 finding that the appellant had failed in its statutory duty to check the healthy condition of the trees and to protect the deceased from the tree falling on him resulting in his death. On appeal, the Division Bench of the High Court held that the appellant has statutory duty to plant trees on the roadside so also the corresponding duty to maintain trees in proper condition. The High Court took the view that the statutory duty gives rise to tortuous liability on the State, and as its agent, the Corporation being a statutory authority. It was held by the High Court that the respondents could not have called upon to prove that the tree had fallen due to the negligence of the Corporation. The statutory obligation to maintain the trees being absolute, and since the tree had fallen due to its decay, the Corporation failed to prove that the occurrence had taken place without negligence on its part. The Division Bench of the High Court accordingly confirmed the decree of the trial court. The Corporation went in appeal by Special Leave before the Supreme Court. The Supreme Court, while allowing the appeal of the Corporation, held as under :

¶443

"60. The exercise of power/omission must have been such that duty of care had arisen to avoid danger. Foreseeability of the danger or injury alone is not sufficient to conclude that duty of care exists. The fact that one could foresee that a failure of the authority to exercise a reasonable care would

¶444

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¶446

cause loss to the passers-by itself does not mean that such a duty of care should be imposed on the statutory authority. The statutory authority exercises its public law duty or function. It would be wrong to think that the local authority always owes responsibility and continues to have the same state of affairs. It would be an intolerable burden of duty of care on the authority; otherwise it would detract the authority from performing its normal duties. If he were to gauge the risk of litigation, he would avoid doing public duty of planting and nurturing the trees thinking that it would be a have burden on the local authority. It would always cause heavy financial burden on the statutory authority. If the duty of maintaining constant vigil or verifying or testing the healthy condition of trees at public places with so many other functions to be performed, is cast on it, the effect would be that the authority would omit to perform statutory duty. Duty of care, therefore, must be carefully examined and the foreseeability of damage or danger to the person or property must be co-related to the public duty of care to infer that the omission/non- feasance gives rise to actionable claim for damages against the defendant.

¶447

61. It is seen that when a person uses a road or highway, under common law one has a right to passage over the public way. When the defendant creates by positive action any danger and no signal or warnings are given and consequently damage is done, the proximate relationship gets established between the plaintiff and the defendant and the causation is not too remote. Equally, when the defendant omits to perform a particular duty enjoined by the statute or

¶448

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¶449

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¶450

does that duty carelessly, there is proximity between the plaintiff-injured person and the defendant in performance of the duty and when injury occurs or damage is suffered to person or property, cause of action arises to enable the plaintiff to claim damages from the defendant. But when the causation is too remote, it is difficult to anticipate with any reasonable certainty as ordinary reasonable prudent man, to foresee damage or injury to the plaintiff due to causation or omission on the part of the defendant in the performance or negligence in the performance of the duty.

¶451

62. The question, therefore, is: whether the respondents in the present case have established the three essential ingredients? Statute enjoins a power to plant trees on the roadsides or in public places. There is no statutory sanction for negligence in that behalf. But the question is: whether the statutory function to plant trees gives rise to duty of maintaining the trees? In a developing society it is but obligatory on every householder, when he constructs house and equally for a public authority to plant trees and properly nurture them up in a healthy condition so as to protect and maintain the eco-friendly environment. But the question is: whether the public authority owes a statutory duty toward that class of person who frequent and pass and repass on the public highway or road or the public places? If the local authority/statutory body has neglected to perform the duty of maintaining trees in a healthy condition and when damage, due to fall of the tree occurs, the question emerges whether the neighbor relationship and proximity of the causation and negligence and the duty of care towards the

¶452

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¶454

plaintiff have been satisfactorily proved to have existed so as to fasten the defendant with the liability due to tort of negligence. It depends on a variety of facts and circumstances. It is difficult to lay down any set standards for proof thereof. Take for instance, where a hanging branch of a tree/tree is gradually falling on the ground. The statutory/local authority fails to take timely action to have it cut and removed and one of the passers-by dies when the branch/tree falls on him. Though the injured or the deceased has contributed to the negligence for the injury or death, the local authority etc. is equally liable for its negligence/omission in the performance of the duty because the proximity is anticipated. Suppose a boy not suspecting the danger climbs or reaches the falling tree and gets hurt, the defendant would be liable for tort of negligent. The defect is apparent. Negligence is obvious, proximity and neighborhood anticipated and lack of duty of care stands established. The plaintiff, in common law action, is entitled to sue for tort of negligence. The authority will be liable to pay the damages for omission or negligence in the performance of the duty. Take another instance, where while A' is passing on the road, there is sudden lightning and thunder and A' takes shelter under a tree and the lighting falls on the tree and consequently A' dies. In this illustration, there is no corresponding obligation or a duty of care on the part of the Corporation or the statutory authority to warn that A' should not take shelter under the tree to avoid harm to him. Take yet another instance, where road is being laid and there is no warning or signal and a cyclist or a most cyclist during night falls in the ditch, i.e. place of repair due to

¶455

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¶457

negligence on the part of the defendant. The injury is caused to the victim/vehicle. The plaintiff is entitled to lay suit for tort of negligence. But in a situation like the present one where the victim being not aware of the decease/decay, the tree suddenly falls in a still weather condition, no one can anticipate and its is difficult to foresee that a tree would fall suddenly and thereby a person who would be passing by on the road-side, would suffer injury or would die in consequence. The Corporation or the authority is not liable to be sued for tort of negligence since the causation is too remote. Novus actus inconveniences snaps the link and, therefore, it is difficult to establish lack of care resulting in damage and foreseeability of the damage. The case in hand falls in this category. Jayantilal was admittedly passing on the roadside to attend to his office duty. The tree suddenly fell and he sustained injury and consequently died. It was difficult to foresee that a tree would fall on him.

¶458

63. The conditions in India have not developed to such an extent that a Corporation can keep constant vigil by testing the healthy condition of the trees in the public places, roadside, highway frequented by passers-by. There is no duty to maintain regular supervision thereof, though the local authority/other authority/owner of a property is under a duty to plant and maintain the tree. The causation for accident is too remote. Consequently, there would be no Common Law right to file suit for tort of negligence. It would not be just and proper to fasten duty of care and liability for omission thereof. It would be difficult for the local authority etc. to foresee such an occurrence. Under these

¶459

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¶461

circumstances, it would be difficult to conclude that the appellant has been negligent in the maintenance of the tees planted by it on the road-sides."

¶462

The principles laid down in the above referred decision of the Supreme Court, in my view, cannot be applied to the case on hand. The Supreme Court took the view that the statute enjoins a power to plant trees on the roadsides or in public places. However, there is no statutory sanction for negligence in that behalf. The Supreme Court took the view that the statutory function to plant trees does not give rise to a duty of maintaining the trees. According to the Supreme Court, the conditions in India have not developed to such an extent that a Corporation can keep constant vigil by testing the healthy condition of the trees in the public places, roadsides, highway frequented by passers-by. There is no duty to maintain regular supervision thereof, though the Corporation is under a duty to plant and maintain the trees. Having regard to the facts of that case, the Supreme Court observed that the causation for the accident was too remote, and in such circumstances, there would not be a common law right to file a suit for torts or negligence.

¶463

Be that as it may, the facts in the case of Rajkot Municipal Corporation (supra) were altogether different. In the case in hand, it is the compound wall of the Metal Depot, owned and maintained by the Corporation, which collapsed resulting into the death of the deceased. The Corporation owed a duty to maintain the compound wall and also to keep a watch if the same was getting dilapidated. The case on hand is nothing but one of gross negligence on the part of the Corporation in maintaining one of its own properties.

¶464

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¶466

Besides the above, I fail to understand why the Corporation is relying on the decision of the Supreme Court in the case of Rajkot Municipal Corporation (supra) at this stage.

¶467

As noted above, they did not appear before the trial court, and so far as the issue of negligence is concerned, the same has been held against the Corporation. Such findings are not challenged by the Corporation by filing any appeal before this Court. In such circumstances, the decision of the Supreme Court in the case of Rajkot Municipal Corporation (supra) would not save the situation for the Corporation.

¶468

MY FINAL CONCLUSIONS ARE AS UNDER :

¶469

(1) The liability of the Corporation has arisen and has been sought to be enforced by the claimants under the Law of Torts. The plaintiffs' action was founded in tort. The plaintiffs have not rested their case on any statutory duty on the part of the Corporation or failure or negligence in performing such duty.

¶470

(2) The suit filed by the plaintiffs is not barred by the provisions of Section 487 of the Act, 1949. Section 487 of the Act has no application in the present case.

¶471

(3) The suit filed by the plaintiffs is governed by Article 113 of the Limitation Act and not Article 72 of the Limitation Act.

¶472

88 . In view of the aforesaid discussion, this Appeal is allowed. The judgment and decree passed by the City Civil Court at

¶473

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¶475

Ahmedabad in the Civil Suit No.1219 of 2005, dismissing the suit on the ground of being barred by limitation, is quashed and set-aside. The findings recorded by the trial court so far as the issues nos.1,2 and 3 are concerned, are affirmed.

¶476

It is declared that the appellants herein - original plaintiffs are entitled to recover Rs.5,80,800=00 with interest at the rate of 12% per annum from the date of the suit till realization from the Ahmedabad Municipal Corporation towards damages for the tortuous liability.

¶477

The Ahmedabad Municipal Corporation shall pay to the appellants herein - original plaintiffs an amount of Rs.5,80,800=00 with interest at the rate of 12% per annum from the date of the suit till realization.

¶478

The costs to be borne by the Ahmedabad Municipal Corporation.

¶479

(J.B. PARDIWALA, J.)

¶480

/MOINUDDIN

¶481

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Faiyazhussain Nazirahmed Ansari v. Ahmedabad Municipal Corporation

Case brief

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Faiyazhussain Nazirahmed Ansari v. Ahmedabad Municipal Corporation

Case brief

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