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PETITIONER: MUNICIPALITY OF BHIWANDI AND NIZAMPUR

       Vs.

RESPONDENT: M/S.  KAILASH SIZING WORKS

DATE OF JUDGMENT20/09/1974

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN KRISHNAIYER, V.R.

CITATION:  1975 AIR  529            1975 SCR  (2) 123  1974 SCC  (2) 596

ACT: Bombay  District  Municipal  Act-S.  167-Scope  of   General Clauses Act--"Done in good faith" meaning of.

HEADNOTE: The respondent had a structure beside a nallah which carries dirty  water  and rain water to the creek.   The  Government demolished  a  portion of the dam upstream as  a  result  of which the water stored in the lake was bound to pass through the nallah to the creek.  The appellant had left  unfinished the  work of laying cement slab across the nallah.   In  the rainy   season  the  nallah  overflowed  and   flooded   the respondent’s property causing damage to it.  The  respondent alleged  that on account of the negligence of the  appellant the  water  course  was completely blocked  in  the  monsoon season and resulted in the flooding of his premises. The  High Court decreed the respondent’s suit  for  damages. Section  167  of the Bombay District Municipal  Act  confers protection  on the Municipality in respect of anything  done in  good faith or intended to be done.  The General  Clauses Act and the Bombay General Clauses Act, 1904 define "done in good faith" to mean done honestly, whether done  negligently or not. On  the question whether the Municipality could be  said  to have acted honestly).  Dismissing the appeal, HELD  : An authority is not acting honestly where it  had  a suspicion  that there was something wrong and did  not  make further  enquiries.  Being aware of possible harm to  others and  acting  in  spite  thereof,  is  acting  with  reckless disregard of consequences.  It is worse than negligence, for negligent action is that the consequences of which, the  law presumes to be present in the mind of the negligent  person. whether actually it was there or not.  L125 G] The  Central as well as Bombay General Clauses Act lay  down that  negligence  does  not  necessarily  mean  mala  fides. Something more than negligence is necessary.  In the instant case  the appellant was aware of the possible harm  and  yet cared  to  do nothing about it.  Its action  was,  therefore reckless  and  showed  its mala fides in  the  eye  of  law. Section 167 of the Act did not protect it. [126 B] Jones v. Gordon, 2 A.C. 616, referred to.

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JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2154  of 1968. Appeal from the judgment and decree dated March 18, 1968  of the Bombay High Court in Appeal No. 102 of 1966. Naunit Lal, for the appellant. V. M. Tarkunde and B. R. Agarwala, for the respondent. The Judgment of the Court was delivered by RAY,  C.J.-This appeal is by certificate from  the  judgment dated 18 March, 1968 of the High Court of Bombay. 124 The   respondent  filed  the  suit  against  the   appellant Municipality  for the recovery of Rs. 1,00,012/- as  damages suffered  to the respondent’s property on account  of  flood caused  by  acts  of gross negligence on  the  part  of  the appellant.  The High Court passed a decree in favour of  the respondent for Rs. 54,560/- with interest at 6% per annum. The respondent has a structure abutting on the Yacoob  Road. The  width  of Yacoob Road is about 12 feet.  On  the  other side  of the road is an open nallah running parallel to  the road.   The  nallah is about 45 feet in  width,  The  nallah provides for passage of dirty water, rain water to the creek during the months of November to May. The Government of Maharashtra demolished a portion of Varala Dam  in the month of May, 1963.  In consequence  the  "rater stored  in the lake was bound to pass through the nallah  to the  creek.   The  appellant commenced the  work  of  laying cement  slab across the nallah in about the second  week  of June,  1963.  The centering work to support and  settle  the slab continued to remain in its position in the nallah  till about the first week of July, 1963. The allegations against the appellant were these First,  the  appellant  prepared a plan  for  narrowing  the nallah in front of the respondent’s shop without making  any provision for the passage of additional rain water from  the Varala lake catchment area. Second,  the existence, of the centring work and the  cement slab  across  the  nallah constituted  a  grave  obstruction against the passage of rain water through the nallah. Third,  the appellant neglected and failed to see  that  the passage of the nallah was kept free and unobstructed by work of  construction and debris for providing a safe passage  of the rain water which was likely to pass at the  commencement of the monsoon season. Fourth,  in the normal course of the monsoon  season,  there was heavy rain at Bhiwandi on the 5th, 6th and the 7th  days of July, 1963.  Because of the existence of centring work in the  nallah,  the slab, wild shrubs and  debris,  the  water course  was  completely  blocked and the  rain  water  which collected  in the catchment area beyond the dam and  in  the Bbiwandi  and Nizampur accumulated at the mouth of the  slab work  to dangerous heights.  This resulted in the  whole  of The area adjoining and surrounding the nallah being flooded. The High Court found these facts : The  appellant had knowledge in the month of April, 1963  of the  demolition of the Varala Dam above a height of  6  feet above  ground level.  The appellant completed the laying  of the  slab  between Teen Batti bridge  and  Habsanali  bridge after  April, 1963 with the knowledge of the  demolition  of the Varala Dam.  The appellant narrowed 125 the  water-way near Teen Batti bridge to an extent  that  it

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was  insufficient for discharge of water from the  increased catchment  area. because of the demolition.   The  appellant with  full knowledge of the consequences narrowed the  water passage, put a slab on it and did not remove the centring at Lendi bridge.  The appellant allowed accumulation of garbage and debris so as to obstruct the passage of’ water. The further findings are these. The  nallah runs from south to north.  The water carried  by it flows on to the creek at the northern end of the  nallah. There are five bridges over the nallah.  The portion of  the nallah which lies between Habsanali bridge and Lendi  bridge was  covered with concrete slab in 1963.  Because  of  heavy rain  on  the  4th,  5th and 6th  days  of  July,  1963  was accumulated  at  the southern end of  Habsanali  bridge  and entered  the surrounding area.  Water was two feet  deep  in the  factory  of  the respondent.   This  state  of  affairs continued  for three days.  The narrowing of  the  water-way and putting a slab on it at Habsanali bridge was  ill-timed. This  should  have been commenced after the Varala  Dam  was reconstructed.  If the appellant wanted to proceed with this work before the reconstruction of the Dam sufficient  water- way  should have been provided for passage of water  from  a catchment area of 0.9 sq. miles providing for a rain fall of 3 inch per hour.  The centring work should have been removed before the monsoon.  In any case no trees, bushes debris  or garbage  should  have been allowed to be  collected  at  the centring  of the slab so as to obstruct the free passage  of water.  The retention of the centring, and the negligence in not  clearing the passage of debris was the principal  cause of the flood. Section  167 of the Bombay District Municipal,  Act  confers protection  on  the Municipality in respect of  anything  in good  faith  done or intended to be  done.   The  expression "done in good faith" has been defined in the Bombay  General Clauses  Act, 1904 and in the General Clauses Act, to  mean, done  honestly,  whether  done  negligently  or  not.    The question,  therefore, is, whether the Municipality,, in  the present case, can be said to have acted honestly. In  Jones  v.  Gordon(1)  Lord  Blackburn  pointed  out  the distinction  between the case of a person who  was  honestly blundering  and’ careless, and the case of a person who  has acted  not  honestly.  An authority is not  acting  honestly where an authority has a suspicion, that there is  something wrong  and does not make further enquiries.  Being aware  of possible  harm  to others, and acting in spite  thereof,  is acting with reckless disregard of consequences.  It is worse than,   negligence,  for  negligent  action  is  that,   the consequences of which, the law presumes to be present in the mind of the negligent person, whether actually it was  there or  not.  This legal presumption is drawn through  the  well known  hypothetical reasonable man.  Reckless  disregard  of consequences  and mala fides stand-equal, where the  actual- state of mind of the actor is relevant.  This is ’so in  the eye of law.., (1)  2 A. C. 616. 126 even  if  there might be variations in the degree  of  moral reproach deserved by recklessness and mala fides. The Bombay, as also, the Central, General Clauses Acts, help only  in  so far as they lay down that negligence  does  not necessarily mean mala fides.  Something more than negligence is necessary.  But these Acts say "honestly" and so, for the interpretation  of  that word, we have explained  the  legal meanings above. In  the  facts of this case we hold that the  defendant  was

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aware of possible harm and yet cared to do nothing about it. The  action was, therefore, reckless, and therefore  in  the eye of law mala fide, and there fore unprotected by  section 167 of the Act. For  these reasons the appeal fails and is  dismissed.   The appellant will pay costs. Appeal dismissed. P.B.R. 127