08 May 1964
Supreme Court


Case number: Appeal (civil) 416 of 1962






DATE OF JUDGMENT: 08/05/1964


CITATION:  1965 AIR   17            1964 SCR  (8) 273

ACT: Torts-Break  in  canal  bank-Suit  for  damages--defendants’ negligence--Non-production  of  documents  by   defendant-If adverse  inference can be drawn-Whether principle  Res  lpsa Loquitur  applies?-Northern  India Canal and  Drainage  Act, 1873, ss. 6, 15.

HEADNOTE: A firm called the Modern Cultivators brought a suit  against the  State  of Punjab to recover damages for loss  of  crops suffered by flooding of its lands as a result of a break  in a  canal belonging to the State.  The plaintiff’s  case  was that  there  was a breach in the western bank of  the  canal owing  to the negligence of the defendants and  canal  water escaped to the fields causing them to be flooded.  The  case of  Government  was that breach did take place  but  it  was promptly  repaired  and the fields were flooded not  by  the canal  water but by heavy rains in the month  of  September. The  trial  Judge  passed a decree for  Rs.  20,000  against Government,  but  it was reduced by the High  Court  to  Rs. 14,130.   The  High Court held that the  inundation  of  the fields  was  by  water  from the  canal  and  not  from  the nallahas.  Both the plaintiff and the defendant filed cross- appeals by special leave of this Court. Held  (per  Sarkar,  J.):  (i) That the  rule  of  res  ipsa loquitur  was applicable to the facts of this  case  because there would not have been a breachin the banks of the canal if those in management took proper care andthe      breach itself would be prima facie proof of negligence. Scott     v. London Dock Co., 3 H & C 601 applied. Barkway  v.  South Wales Transport Co. Ltd., [1950]  1  All. E.R. 392, distinguished. (ii)An  inference that the defendant was negligent  in  the management of the canal arises because it is clear from  the record  that  documents  called for had  not  been  produced deliberately. Murugesam Pillai v. Manickavasaka Pandara, L.R. 44 I.A.  98, referred to. (iii)Article  2 of the Limitation Act does not apply to  the facts of the casefor  there is nothing in the  Canal  Act imposing  any  duty  on the defendant to take  care  of  the



banks. Held  (per Hidayatullah, J.): (i) The principle of res  ispa loquitur  cannot always, be safely applied where  the  facts before the court are not the whole facts.  It should not  be applied as legal rule but only 51 S.C.-18. 274 as  an  aid to an inference when it is reasonable  to  think that there are lb no further facts to consider.  It is not a principle which dispenses with proof of negligence.   Rather it  shifts onus from one party to another.  It is a rule  of evidence and not of liability.  A too ready reliance on  the maxim  reinforces  a fault liability and makes  it  into  an absolute liability.  If absolute liability is to give way to fault  liabilty, some fault must be established by  evidence or  must  be capable of being reasonably inferred  from  the circumstances.   It  is  not  sufficient  to  say  res  ipsa loquitur  because  the danger is that facts may  not  always tell the whole story and if there is something withheld  how can  the thing be said to speak for itself?  The High  Court erred  in applying the principle of res ipsa loqutur to  the facts of this case. In  the present case there was sufficient evidence,  in  the absence of reasonable explanation (which there was not),  to establish negligence. Donoghue v. Stevenson, 1932 1 A.C. 562, explained. Sedleigh-Denfield v. V. O’Callaghan and Other s. 1940 1 A.C. 890 and Scott v. London and St. Katherine Docks Co., 3 H.  & C. 596: 159 E.R. 665, referred to. Barkway  v.  South Wales Transport Co. Ltd.  [1950]  1  All. E.R. 392 H.L. 394, relied on. (ii)The  rule in Raylands v. Fletcher is hardly  applicable here.  Canal Systems are essential to the life of the Nation and land that is used as canals, is subjected to an ordinary use  and not to unnatural use on which the rule in  Raylands v.  Fletcher rests.  There is difficulty  in  distinguishing non-natural and natural user. Rylands v. Fletcher, L.R. 3 H.L. 300, inapplicable. Richards v. Lothian, 1913 1 A.C. 263, relied on. (iii)Article  2 of the Limitation Act cannot  apply  to cases where the act or omission complained of is not alleged to be in pursuance of statutory authority.  Act or  omission which can claim statutory protection or is alleged to be  in pursuance  of a statutory command may attract Art. 2 of  the Limitation Act but the Act or omission must be one which can be said to be in pursuance of an enactment.  In the  present case  the  breach in the bank was not that kind  of  act  or omission.   It  could not claim to be in  pursuance  of  the Canal Act.  Nor could the opening or closing of the  channel for operations, though in pursuance of the Canal Act, be the relevant act or omission because they were more than a  year before  the cause of action and to apply a limitation of  90 days to that cause of action is not only impossible but also absurd.  Article 2, therefore does not apply.  Article 3  of the Limitation Act applies to the present case. Punjab  Cotton Press Co. Ltd. v. Secretary of State,  I.L.R. 10 Lah. 161 P.C., inapplicable                             275 Mohamad Sadaat Ali Khan v. Administrator Corporation of City of  Lahore,  I.L.R. [1945] Lah. 523 F.B.  and  Secretary  of State  v.  Lodna  Colliery Co. Ltd.,  I.L.R.  15  Pat.  510, referred to. Commissioners  for  the Port of Calcutta v.  Corporation  of Calcutta, 64 I.A. 363, distinguished. Held  (per  Mudholkar.   J.): (i) The  rule  in  Rylands  v.



Fletcher applies only if the defendant brings or accumulates on  his own land something that is likely to escape  and  do mischief, irrespective of the question whether that was done by  the  defendant wilfully or negligently.  This  rule  has been adopted in this country in several cases and so can  be regarded  as a part of the common law of the land.   In  the country  of  its  origin, this rule has  been  subjected  to certain  exceptions.   One of the exceptions is  this:  that where   the  owner  or  occupier  of  land   accumulates   a deleterious  substance  thereon by virtue of  an  obligation imposed  upon him by a statute or in exercise  of  statutory authority  he  will  not  be  rendered  liable  for  damages resulting   therefrom   to  other  persons  unless   it   is established that he was guilty of negligence in allowing the deleterious  substance  to escape.  The present  case  falls within this exception. The  State of Punjab would not be liable for damages by  the operation  of the rule in Rylands v. Fletcher but is  liable by  reason of its negligence.  The breach was caused by  the negligence  on  the  part of the officers of  the  State  in inspecting  the  banks of the canal and in  particular  that portion of it where the breach had been caused. Rylands v. Fletcher, (1868) L.R. 3 H.L. 330 explained. Gooroo  Churn  V. Ram Dutt, (1865) 2 W.R.  43,  Dhanusao  V. Sitabai,  (1948)  Nag. 698, and Dunne v. North  Western  Gas Board, (1964) 2 W.L.R. 164. referred to. (ii)The  rule  of  evidence res  ipsa  loquitur  cannot  be applied to the facts of this case because all the facts  for the  decision of the case were not placed before the  court. Immediately after the breach occurred some reports were made by the officers of the State but they were not placed before the Court despite its order requiring their production.   In other  words the State had deliberately suppressed  evidence in  its possession which could have established  negligence. In  this  view  the rule of res ipsa  loquitur  is  not  the applicable.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 416 and 417 of 1947. Appeals  from the judgment and decree dated May 1, 1956,  of the  Punjab  High Court in Regular First Appeal  No.  45  of 1950. 276 A.V.  Viswanatha Sastri, Gopal Singh and R.  N  Sachthey, for  the appellants (in C.A. No. 416/1962),  and  respondent (in C.A. No. 417/62). S.T.  Desai, Hardayal Hardy and J. P. Agarwal,  for  the, respondent (in C.A. No. 416 of 1962) and appellants (in C.A. No. 417 of 1962). May 8, 1964.  The following Judgments were delivered by  the Court. SARKAR  J.I  agree with the orders proposed  by  my  brother Hidayatullah. These  appeals arise out of a suit brought by a firm  called the  Modern  Cultivators  against the  State  of  Punjab  to recover  damages for loss suffered by flooding of its  lands as a result of a breach in a canal belonging to the State of Punjab.   Both the Courts below have held in favour  of  the plaintiff  but  the  High Court reduced the  amount  of  the damages  awarded  by  the trial Court.   Both  parties  have appealed to this Court.  The Modern Cultivators contend that the  High  Court is in error in reducing the amount  of  the



damages. The  State  of  Punjab contends  that  it  had  no liability forthe loss caused by the flooding.  The  breach and the floodingof  the  plaintiff’s lands are  not  now denied. In regard to the appeal by the Modern Cultivators  I have nothing to add to what has been said by Hidayatullah J. For  the reasons mentioned by him I agree that  the  damages had been correctly assessed by the trial Court. In  its appeal the State of Punjab first contended that  the plaintiff  could not succeed as it had failed to prove  that the breach had been caused by the defendant’s negligence.  I am  unable  to  accept this  contention.   The  trial  Court inferred  negligence against the defendant as it had  failed to produce the relevant documents and with this view  agree. The  defendant  had produced no documents to  show  how  the breach was caused.  It had been asked by the trial Court  to do so by an order made on May 12, 1949 but failed to produce them.   The defendant bad a large number of  canal  officers and  according  to Mr. Malhotra, the,Executive  Engineer  in charge of the canal at the relevant time,                             277 there  was a regular office and various  reports  concerning the breach had been made.  None of these was produced at the hearing.   It  is obvious that in an Organisation  like  the canal  office,  reports and other documents must  have  been kept  to show how the breach occurred and what was  done  to stop  it.  If such documents are not produced, an  inference can  be legitimately made that if produced, they would  have gone against the case of the defendant, that is, they  would have proved that the defendant had been negligent: Murugesan Pillai  v.  Manickavasaka Pandara(1).  It was  suggested  in this  Court. that the documents had been destroyed.  It  may be  that  they are now destroyed.  One  of  the  defendant’s officers   called  by  the  High  Court  in  view   of   the unsatisfactory nature of the documentary evidence said  that documents  Were destroyed after three lo seven  years.   The breach  occurred  in  August 1947, the  suit  was  filed  in October  1948 and the trial was held about August 1949.   So it would appear that at the time ,of the trial the  relevant documents had not been destroyed.  Nor was it said that they had  then  been  destroyed.  Furthermore,  in  view  of  the pendency   of  the  suit  the  documents  must  have   be-en preserved.   It  is, clear that they bad not  been  produced deliberately.  An inference that the defendant was negligent in  the  management  of  the  canal  arises  from  the  non- production  of the documents.  There is therefore,  evidence that the defendant was negligent. Furthermore  it  seems  to  me that the  rule  of  res  ipsa loquitur applies to this case.  The canal was admittedly  in the  management  of the defendant and canal  banks  are  not breached  if those in management take proper care.  In  such ,cases  the rule would apply and the breach itself would  be prima  facie proof of negligence: see Scott v.  London  Dock Co.(1). No doubt the defendant can show that the breach  was due  to act of God or to act of a third party or any  ,other thing  which would show that it had not been negligent,  but it  did  not  do so.  It may be that the rule  of  res  ipsa loquitur may not apply where it is known how the thing which caused the damage happened as was held in Bankway v.   South Wales Transport Co., Ltd.(1). But that is not the (1) L.R. 44 I.A. 98. (2) 3 H. & C. 601 (3)  [1950] 1 All E.R. 392 278 case here.  No reason has been advanced why the rule  should not  apply.  Therefore I think that the first contention  of



the  defendant that there is no evidence of negligence  must be rejected. I do not think it necessary in the present case to  consider whether  the rule in Rylands v. Fletcher(1) applies to  make the  defendant  liable for I have already held  that  it  is liable as negligence has been proved. The  second  point  raised  by  the  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  applies,  the  suit would be  out  of  time.   That article  relates  to a suit "for compensation for  doing  or omitting  to  do an act alleged to be in  pursuance  of  any enactment".   It was said that the Northern India Canal  and Drainage  Act, 1873 imposed a duty on the defendant to  take care  of  the canal banks and its failure to do so  was  the omission  to do an act in pursuance of an  enactment  within the article.  I have very grave doubt if this interpretation of  art. 2 is correct.  There is authority against  it:  see Mohammad  Saadat Ali Khan v. The Administrator,  Corporation of City of Lahore(1).  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 51 of that Act.   Both are enabling sections giving power to the  State Government  to do certain acts.  Under s. 6 it has power  to enter  on any land and remove any obstruction and close  any channels or do any other thing necessary for the application or  use  of  the water to be taken  into  the  canal.   This obviously  does not impose any duty in connection  with  the canal bank.  Section 15. gives the power to the canal autho- rities 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 (1) [1868] L.R. 3 H.L. 330 (2) [1945] L.R 26 Lah. 523 279 here  is to be read as in any way approving the  defendant’s interpretation of art. 2. Therefore the defendant’&  conten- tion that the suit was barred by limitation also fails. The defendant’s appeal must, therefore, be dismissed and the plaintiff’s appeal allowed.  Costs will naturally follow the result. HIDAYATULLAH,  J.On August 15, 1947 the Western Jamna  Canal at R.D. No. 138000 near Sangipur and Jandhrea villages burst its   western   bank.   The  canal   water   inundated   the neighbouring  fields where crops of sugar cane, maize,  urud etc.  grown  by  the  plaintiff  firm  were  damaged.    The plaintiff  brought this action alleging that the  breach  in the  bank was caused by negligence on the part of the  canal authorities  who  were guilty of further negligence  in  not closing  the breach without delay.  The plaintiff  estimated its loss at Rs. 60,000 in respect of the standing crop and a further  loss of Rs. 10,000 in respect of the  deterioration of the land for future cultivation.  It however, limited its claim to Rs. 20,000. The  State Government denied negligence on the part  of  the canal  authorities.  Government admitted that a  breach  did occur in an old inlet channel of Chhalaundi Silting Tank  on August  15,  1947 and some canal water escaped  through  the breach which, it was said, flowed back to the canal  through



the  outlet  of  the  silting tank  lower  down  the  canal. Government  claimed that the site was immediately  inspected by  the  Executive Engineer and no damage to the  crops  was discovered  and that the breach was promptly closed and  the bank  was strengthened.  Government stated that  there  were heavy rains on the 8th September and again from 23rd to 28th September,  1947 causing floods in the nullahas but  as  the canal was running full supply, water brought by the nullahas to  the  silting tank could not get to the canal  and  over- flowed to the adjoining areas. Shortly stated, plaintiff’s case was that there was a breach in the western bank of the canal owing to the negligence  of the defendants and canal water escaped to the fields causing them  to  be flooded; while the case of the  Government  was that a breach did take place but it was promptly repaired 280 and  the fields were flooded not by the canal water  but  by heavy  rains  in the month of September.   The  trial  judge passed  a decree for Rs. 20,000 against Government,  but  it was  reduced  by the High Court to Rs.  14,130.   These  two cross-appeals  have thus been filed by the rival parties  by special leave of this Court. The  High Court and the court below have a,-reed in  holding that there was a break in the canal.  The size of the breach has been variously described, but it was certainly not  less than  30 feet wide and the depth of the water at the  breach was  about 15 feet.  It is admitted that the canal was  then running  full supply 2, 5,000 Cusecs.  As the width  of  the canal  was  400 feet, the out-flow would be at the  rate  of 5,00OX30/400  Cusecs if the breach was 30 feet  wide.   This would mean extensive flooding of the low lying areas  unless the  breach was immediately closed.  Some of  the  witnesses say that it was as much as 70 to 80 feet wide and that would make  the out-flow even greater.  The High Court  held  that the floods were not caused by the rains.  Prior to the break in  the canal there was only I inch of rainfall.  The  heavy rains  took place much later.  The inundation of the  fields was thus by water from the canal and not from the  nullahas. This  much has already been held.  It ,is admitted that  the breach  occurred  at a place where there was an  old  nullah through  which  silting operations were carried out  in  the past and this exit was closed in the previous years and  the breach was at that very site.  The breach was noticed on the morning of the 16th.  No attempt was made by either side  to establish  the exact duration of time before the breach  was repaired.  Mr. Malhotra (Executive Engineer) stated that  it was  repaired  by the 18th but was re-opened (one  does  not know  why)  on  the  20th and  again  closed  on  the  21st. Evidence  on behalf of the plaintiff established that  water continued pouring out as late as the month of October.  This was  apparently  an exaggeration.  There is no  evidence  to show  that the flow of water in the canal was  reduced  from the headworks the breach occurred.  It apparently  continued on  full  The High Court attempted to secure  the  documents from  the canal Office which had not been produced  earlier. The 281 Executive Engineer, then in charge was summoned to bring all the  papers  in  his office and he  produced  the  telegrams received  by  and copies of telegrams issued from  the  head office between August 16, 1947 and September 5, 1947.   From these  documents it is now established that the  breach  was not repaired at least upto August 27, 1947 and the  evidence that it was repaired on the 18th was therefore not accurate. It has also been established that the case of the  plaintiff



that  water  continued to flow right upto October  was  also false.   It may thus be assumed that repairs were  completed by the 27th August but not earlier. It  is  admitted that the area into which water  flowed  was used as a silting tank.  The silting operations comprise the opening of the bank of the canal at a selected place to  let out  turbid  water which passing through  the  silting  tank drops  the sediment and flows back to the canal at  a  lower reach free of the silt, and closing of the bank.  It is  now admitted that at the exact spot where the breach took  place there  was previously an opening for silting purposes  which was   recently  closed.   There  is  no  evidence  to   show negligence  on  the part of  Government.   Curiously  enough Government  said  that  it  had  not  preserved  the  papers connected  with  this mishap.  We can hardly  believe  this. Government  led evidence to establish that the banks of  the canal  were  periodically  inspected and  claimed  that  the breach was an act of God without any negligence on the  part of the canal authorities.  It is an admitted fact that crops of  the  plaintiff  were destroyed if not  wholly  at  least substantially.   The  only question, therefore,  is  whether Government can be held responsible for the damage caused  to the plaintiff and, if so what should be the compensation. Two points were urged on behalf of Government: the first was that  the  suit  filled by the plaintiff  was  out  of  time inasmuch as Art. 2 of the Indian Limitation Act which  pres- cribes a period of three months was applicable and not  Art. 36  which prescribes a period of two years.  This  wag  held against  Government by the High Court and the  court  below. The  second  point urged on behalf of  Government  was  that there  was no proof of negligence whatever by the  plaintiff and the plaintiff must therefore fail.  The High 282 Court  in dealing with this point held that, in the  circum- stances res ipsa loquitur and that it was not necessary  for the  plaintiff  to  prove  negligence  and  it  must  be  so presumed.   The High Court differed from the court below  in assessing damages. In the appeal of the Government both these points are urged. On  behalf of the plaintiff, in the companion appeal, it  is contended  that  the  High  Court  omitted  to  give  proper compensation  for  the loss of maize and urud crop.   It  is submitted  that the High Court adopted the formula  that  in respect  of sugar cane crop which needs plenty of water  the damages  should be assessed at 1/3 of the value of the  crop and  in  respect of maize and urud crops at 1/2  the  value. The plaintiff contends in its appeal (that the whole of  the maize and urud crop was completely destroyed and the  decree of the court of first instance allowing 3/4 of the value  of the  crop as compensation was unassailable.  It  is  pointed out  that evidence disclosed that water in the fields was  4 to 5 feet deep and the maize and urud plants were less  than 2 feet high.  In other words, the plants remained  submerged during all the time the fields were mandated.  It is obvious that  the  crop must have been entirely  destroyed  and  the allowance  of  1/4 was because the destroyed crop  had  some value  as chari.  On the facts, as found, there  was  hardly any justification for reducing the amount of the decree  for damages  passed  by the court of first instance.   The  High Court itself, in more than one place, stated in its judgment that the maize and urud crops were completely destroyed.  It is, therefore, clear that unless Government succeeds in  its appeal  the. decree of the court of first instance  must  be restored in this case.  Mr. Vishwanatha Sastri on behalf  of Government  asked  for a remit, but in view  of  the  slight



difference and the fact that the High Court itself  remarked that  the  maize and urud crops  were  completely  destroyed there  would not be any necessity to order a remit  in  case the  appeal  of the Government fails.  I shall now  turn  to that appeal. The  facts as found in this case are that in 1946, the  land which  got  flooded, was used for  silting  operations.   An opening in the western bank was made in that year and the                             283 bank was restored in June 1946.  Till the month of August in the  following  year  there  was  no  complaint.    Evidence discloses  that  the  banks  were  regularly  inspected.   A special  Engineer and a Special Sub-Divisional Officer  were in  charge  and  there  were watchmen  also.   There  is  no evidence  of  wilful  conduct.  The plaintiff  has  not  led evidence  to  establish any particular  act  of  negligence. There  is no evidence that the breach was caused by the  act of  a third party or even of God.  Mi.   Sastri,  therefore, contends  that  as there was no  foreseable  danger  against which  precautions could be taken beyond  making  periodical inspections,  and this was done, there can be no  liability. He  submits  that in this view of the matter  the  plaintiff must fail in the absence of proof of negligence. The  High Court applied to the case the rule in Donoghue  v. Stavenson(1) reinforcing it with what is often described  as the  doctrine of res ipsa loquitur.  This case is  first  of its  kind  in India and needs to  be  carefully  considered. Before  us reliance was placed upon the rule in  Rylands  v. Fletcher(1).   That  rule,  shortly  stated,  is:  that  any occupier of land who brings or keeps upon it anything likely to do damage if it escapes is bound at his peril to  prevent its escape, and is liable for all the direct consequences of its escape, even if he has been guilty of no negligence: Per Salmond, Law of Torts 13th Edu. p. 574.  The rule in Rylands v. Fletcher was derivatively created from the rule of strict liability  applicable  to  the acts of animals  but,  in  my opinion,  it is hardly applicable here.  Canal  systems  are essential to the life of the nation and land that is used as canals,  is  subjected  to an ordinary use  and  not  to  an unnatural  use  on  which the rule in  Rylands  v.  Fletcher rests.   The words of Lord Cairns "non,natural use" of  land and of Blackburn, J. "special use bringing with it increased danger to others" are sometimes missed.  There is difficulty in  distinguishing non-natural and natural user but  perhaps the best test to apply is slated by Lord Moulton in Richards v. Lothian(1): (1) [1932] A.C. 562                      (2) L.R  3 H.L. 300 (3)  [1913] A C. 263, 280 284               "Some  special use bringing with it  increased               danger  to others, and must not merely be  the               ordinary  use of the land or such a use as  is               proper   for  the  general  benefit   of   the               community." They formed the basis of observation of Viscount Maugham  in Sedleigh-Denfield  v.  V. O’Callaghan and  Ors.(1).  As  was pointed out by Holmes in his Common Law (1963) at p. 93: "It may even be very much for the public good that dangerous accumulations should be made. . . ." Cases  of  breaks in canals resulting in  danger  to  neigh- bouring  lands  are  rare but some are to be  found  in  law reports from the United States of America.  I need not refer to   them  because  the  following  passage  from   American Jurisprudence  Vol.  9 page 340 para 38  gives  an  adequate summary of the principles on which they had been dealt with:



             "A  canal company is also liable for  flooding               private property where it has not acquired the               legal  right  to do so; it  is  answerable  in               damages  for all loss occasioned by a  neglect               on  its  part  to  use  reasonable  care   and               precaution to prevent the waters of its  canal               from  escaping  therefrom to  the  injury  and               detriment  of others.  A canal  proprietor  is               not, however, liable for damages to  adjoining               lands  resulting from a mere accidental  break               in   his  canal  which  human  foresight   and               vigilance  could  not  have  anticipated,  and               against  which  proper prudence  and  judgment               could not be expected to provide.  Although it               has  been  held that a canal  company  is  not               liable  for  damages occasioned  by  the  per-               colation  of waters through the banks  of  its               canal,  in the absence of proof of  negligence               on  its part in want of skill or care  in  the               construction  and  maintenance of  its  canal,               such  holdings are maintenance of  its  canal.               such holdings               (1)   [1940] A.C. 880 at 889                                    285               are opposed to the weight of reason and autho-               rity.  " Perhaps the liability is viewed strictly as an inducement to care  Safety is best secured when. it is made the  responsi- bility  of the person who must not only take precautions  to avoid accident but who alone decides what those  precautions should  be.  In this connection the rule that is most  often quoted  was stated by Erle C.J. in Scott v. London  and  St. Katherine Docks Co. (1) thus:               "There   must   be  reasonable   evidence   of               negligence.               But  where the thing is shown to be under  the               management  of the defendant or his  servants,               and  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." In subsequent cases it has been customary to regard this  as a  statement  of  the principle of res  loquitur.   But  the principle,  if  it be one, cannot always be  safely  applied where  the facts before the court are not the  whole  facts. In  a  vast  canal system constructed with  great  care  and attention to detail it may be difficult to prove  negligence but it may sometimes be equally difficult to explain how the defect  arose.  The principle of res ipsa loquitur  had  its origin  in  the failing of a barrel of flour  from  a  first floor  window  on  a passerby but it has  been  extended  to situations  quite different.  It is not very much in  favour and if applied it must be correctly understood.  It is not a principle which dispenses with proof of negligence.   Rather it  shifts  onus from one party to another.  It is  rule  of evidence and not of liability.  A too ready reliance on  the maxim  reinforces  a fault liability and makes  it  into  an absolute liability.  If absolute liability is to give way to fault liability, some fault must be established by  evidence or  must  be capable of being reasonably inferred  from  the circumstances.  It is not- (1)  3 H  & C. 596 : 159 E R. 663 286



sufficient  to say res ipsa loquitur because the  danger  is that facts may not always tell the whole story and if  there is something withheld how can the thing be said to speak for itself ? The principle which I consider reasonable to  apply where  fault has to be inferred from circumstances was  best stated by Lord Porter and I respectfully adopt it.  Speaking of  res  ipsa  loquitur it was observed by  Lord  Porter  in Barkway v. South Wales Transport Co. Ltd.(1) :               "The doctrine is independent on the absence of               explanation,  and, although it is the duty  of               the  defendants,  if they  desire  to  protect               themselves, to give an adequate explanation of               the  cause of the accident, yet, if the  facts               are sufficiently known, the question ceases to               be  one where the facts speak for  themselves,               and the solution is to be found by determining               whether,   on   the  facts   as   established,               negligence is to be inferred or not." I have made these observations so that the principle may not be  applied too liberally.  It must also be remembered  that what  is  said  in  relation  to  it  in  one  case   cannot indiscriminately be applied to another case.  It should  not be applied as legal rule but only as an aid to an  inference when  it  is reasonable to think that there are  no  further facts to consider. I shall now consider the facts as they stand in this case to discover  if  the  canal authorities can be said  to  be  at fault.   The  facts  show that the water  escaped  into  the Chillaundi  Silting  Tank  through  the  nallah  which   had previously  been  used for silting operations and  had  been sealed  in  the previous year.  If the plug  were  sound  it would  have withstood the pressure of water as it did  after it  was  repaired  on the 27th August  even  though  28"  of rainfall fell within 20 days.  There is nothing to show that the  outflow was due to rainfall or a storm  so  exceptional that it could be regarded as an act of Good.  Nor was it due to any disturbance of the earth’s crust or interference by a stranger.   There  is  thus  ,sufficient  evidence,  in  the absence of reasonable explanation (1)  [1950] 1 All.  E R. 392 at 394,395                             287 (which  there  is not), to establish  negligence.   Further, there  was  inordinate delay and negligence in  sealing  the breach.   Even  the flow in the canal was  not  reduced  for repairs  to be carried out quickly.  In such  circumstances, the  facts prove negligence and government was rightly  held responsible.  Whether the defect was patent or latent is not much to the purpose.  It was not an inevitable accident, and the Government must be held liable. It remains to consider the question of limitation.  The high Court  and  the  court below have applied  Art.  36  of  the indian Limitation Act. Government claims that the      proper Article to apply was Art. 2. These Articles may be     set down here: Description of      Period of limitation   Time from which suit.                                      period begins to                                             run. 2.   For compensation    Ninety days       When The   act or for doing or for                            omission   takes omitting to do an                              place. act alleged to be in pursuance of any enactment in force for the time in India



36.  For compensation  Two years (now  When the malfeasance for any mal-feas-      one year)       misfeasance or non- ance, misfeasance                     feasance takes place. or   nonfeasance independent  of contract and not herein    specially provided for. It  is  not denied that if Art. 2 was  not  applicable,  the proper  Article would be Art. 36 and the suit would also  be within time.  In contending that the second article  applies reliance  is  placed on a decision of the Privy  Council  in Punjab Cotton Press Co. Ltd. v. Secretary of State(1).   But that   case  is  clearly  inapplicable.   There  the   canal authorities  cut the bank of a canal at a selected point  to let the water away with a view to protecting a railway track passing  close  by  ,on a high embankment and  in  this  way flooded  and  injured the plaintiff’s mills.   The  Judicial Committee held that if the act was done, as was said,  under s.  15 of the Northern India Canal and Drainage Act 1873  (8 of  1873), Art. 2 was applicable and not Art. 36.  The  case was thus remanded (1)  I.L.R. to Lah. 171 P.C. 288 to find the fact necessary for the application of the. right article.   In relying upon this case, Mr. Viswanatha  Sastri claims that s. 15 of the Canal Act covers the present facts. Mr.  Gopal Singh, who followed, also refers to s. 6.  These, sections read:               "6. Powers of Canal Officer.               At any time after the day so named, any  Canal               Officer, acting under the orders of the  State               Government  in this behalf, may enter  on  any               land  and  remove any  obstructions,  and  MaY               close  any  channels, and do any  other  thing               necessary  for such application or use of  thE               said water."               "15.   Power  to  enter  for  repairs  and  to               prevent accidents.               In  case  of any accident happening  or  being               apprehended to a canal, any Divisional  Canal.               Officer or any person acting under his general               or  special orders in this behalf  may  enter,               upon any lands adjacent to such canal, and may               execute  all works which may be necessary  for               the  purpose of repairing or  preventing  such               accidents.  Compensation for damage to land. -               In  every  such case, such  Canal  Officer  or               person   shall  tender  compensation  to   the               proprietors or occupiers of the said lands for               all  damage done to the same.  If such  tender               is not accepted, the Canal Officer shall refer               the matter to the Collector, who shall proceed               to award compensation for the damage as though               the   State   Government  had   directed   the               occupation  of the lands under section  43  of               the Land Acquisition Act, 1870." In  regard to section 6 it is sufficient to say that it  has no application here.  It refers to the day named in s. 5 and                             289 that  section  provides  for a  notification  to  be  issued declaring  that  water would be applied after  a  particular date  for  purpose  of any existing or  projected  canal  or drainage  work  or  for purposes  of  Government.   On  such notification  issuing  any Canal Officer, acting  under  the



orders  of the State Government, may enter on any  land  and remove obstructions or close any channels so that water  may be applied to those purposes.  This is an entirely different matter  and it is no wonder that Mr. Viswanatha  Sastri  did not rely upon s. 6. Section  15  no  doubt confers a power to  enter  lands  and property   of  others  to  affect  repairs  or  to   prevent accidents.   One  can hardly dispute that it is  the  normal duty of canal authorities to make repairs and execute  works to prevent accidents.  But Art. 2 cannot apply to  omissions in  following  the  statutory duties because  it  cannot  be suggested  that  they are ’in pursuance of  any  enactment’. Cases of -malfeasance, misfeasance or nonfeasance may or may not  have statutory protection.  Act or omission  which  can claim statutory protection or is alleged to be in  pursuance of  a  statutory command may attract Art. 2 but the  act  or (mission must be one which can be said to be in pursuance of an enactment.  Here the suit was for compensation for damage consequent on a break in the canal on August 15, 1947.   The only act or omission could be the opening and closing of the channel for silting operations.  That was before June  1946. The  third  column  of  Art. 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 injury if that were the starting point. This subject was elaborately discussed in Mohamad Sadaat Ali Khan v. Administrator Corporation of City of Lahore(1) where all  rulings on the subject were noticed, Mahajan J. (as  he then  was)  pointed out that "the act or  omission  must  be those  which  are  honestly believed to be  justified  by  a statute".  The same opinion was expressed (1) I.L.R. [1945] Lah. 523 F.B. 51 S.C.-19. 290 by Courtney Terrell C.J., in Secretary of State v. Lodna Colliery Co. Ltd. (1) in these words :-               "The  object of the article is the  protection               of  public  officials, who,  while  bona  fide               purporting  to  act  in  the  exercise  of   a               statutory power, have exceeded that power  and               have committed a tortious act; it resembles in               this  respect the English  Public  Authorities               Protection  Act.  If the act complained of  is               within the terms of the statute, no protection               is  needed, for the plaintiff has suffered  no               legal wrong.  The protection is needed when an               actionable  wrong  has been committed  and  to               secure  the  protection there must be  in  the               first place a bona fide belief by the official               that  the act compalined of was  justified  by               the statute; secondly, the act must have  been               performed  under colour of a  statutory  duty,               and thirdly, the act must be in itself ,a tort               in order to give rise to the cause of  action.               It  is against such actions for tort that  the               statute gives protection." These cases have rightly decided that Art.2 cannot apply  to cases  where  the  act or omission  compalained  of  is  not complained of is not alleged to be in pursuance of statutory authority.  It is true that in Commissioners for the Port of Calcutta   v.  Corporation  of  Calcutta(1)   the   Judicial Committee,  while dealing with s. 142 of the  Calcutta  Port Act (3 of 1890) which reads:               No    suit shall be brought against any person               for any done or purporting or professing to be



             done  in  pursuance  of this  Act,  after  the               expiration  of  three months from the  day  on               which  the cause of action in such suit  shall               have arisen", pointed to the presence of the words "purporting or profess- ing to be done in pursuance of this Act" and observed that (1) I.L.R. 1 5 Pat. 510           (2) 64 I.A. 36 291 they regarded the words as of ’pivotal importance’ and  that their  presence postulated "that work which is not  done  in pursuance  of the statute may nevertheless be  accorded  its protection  if the work professes or purports to be done  in pursuance of the statute".  But they were giving  protection to an act which could legitimately claim to be in  pursuance of  the Port Amt.  Here the break in the bank was  not  that kind of act or omission.  It could not claim to be in pursu- ance of the Canal Act.  Nor could the opening or closing  of the  channel for silting operations, though in pursuance  of the Canal Act, be the relevant act or omission because  they were  more  than a year before the cause of  action  and  to apply a limitation of 90 days to that cause of action is not only  impossible but also absurd.  Art. 2,  therefore,  does not  apply  here.  It was not contended before us  that  the suit  was otherwise time-barred and we  accordingly  confirm the finding that the suit was within time. The  result  thus  is that the appeal  filed  by  the  State Government fails and I would dismiss it with costs and allow the  appeal  filed  by the plaintiff with  costs.   I  would modify the judgment and decree of the High Court by altering the  amount  of Rs. 14,130 to Rs. 20,000 as ordered  by  the trial judge. MUDHOLKAR,   J.I   agree  with  my   brethren   Sarkar   and Hidayatullah that the appeal preferred by the defendant, the Stale  of Punjab, be dismissed and the appeal  preferred  by the  plaintiff, the Modern Cultivators, be allowed  and  the decree  for  damages be restored to the sum awarded  by  the trial  court.   I  also agree with the order  for  costs  as proposed. I wish to add nothing with regard to the plaintiff’s  appeal to what has been said by my brother Hidayatullah nor to what he  or my brother Sarkar has said regarding the question  of limitation  raised  on behalf of the defendant.   They  have both held that art. 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 292 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. If art. 2 is out of the way, it is not disputed on behalf of the State that the suit will be within time. My learned brother Hidayatullah has referred to the rule  of common  law as to strict liability with respect  to  damages resulting  from  the  escape of  deleterious  substances  or cattle from the land which have been accumulated or  brought on  the  land by its owner for his use and  which  were  not natural  there.   The  rule was stated thus  in  Rylands  v. Fletcher(1) by Blackburn, J.               "We  think that the true rule of law  is  that               the person who for his own purposes brings  on               his   lands  and  collects  and  keeps   there               anything likely to do mischief if it  escapes,               must  keep it in at his peril, and if he  does               not  do so is prima facie answerable  for  all



             the damage which is the natural consequence of               its escape." It was approved by the House of Lords, but Lord Cairns  laid down  a  new principle distinguishing the natural  from  the non-natural user of land and holding that in the latter case only was the liability absolute. (see Salmond on Torts, 13th ed. p. 579).  This rule has been adopted in this country  in several cases (see Gooroo Churn v. Ram Dutt(2); Dhanusao  v. Sitabai(3)  and several other cases) and can, therefore,  be regarded  as a part of the common law of the land.   In  the country  of  its  origin, this rule has  been  subjected  to certain  exceptions.  The present case falls in one  of  the exceptions  recognised in some, though not, all  cases.   It has been held in some cases that where the owner or occupier of  land  accumulate,,, a deleterious substance  thereon  by virtue of an obligation imposed upon him by a statute or  in exercise  of  statutory authority he will  not  be  rendered liable  for  damages resulting therefrom  to  other  persons unless it is established that he was guilty (1) 18681 L.R. 3 H.L. 330           (2) [1865] 2 W.R. 43                             293 of  negligence  in  allowing the  deleterious  substance  to escape.   In  a recent decision Dunne v. Horth  Western  Gas Board(1)  the Court of Appeal has recognised this  exception and  the  controversy may be said to have been set  at  rest subject,  of course, to what the House of Lords may have  to say  hereafter.   Indeed, the liability to  pay  damages  to another  resulting from an act of a person is laid upon  him by the law of torts upon the basis that his act was wrongful and  that  he was a wrong-doer.  Where, therefore,  the  act consists of something which the law enjoins upon that person to do or which the law permits him to do, it cannot possibly be  said  that his mere act in doing that something  was  in itself  wrongful  and that he was a  wrong-doer.   He  will, however,  be liable if he performed the act in  a  negligent manner  or  if  the  escape  of  the  deleterious  substance subsequent to accumulation of that substance in exercise  of a  statutory  authority was the result  of  his  negligence. There is nothing here to show that in constructing the canal under  the  powers  conferred by Northern  India  Canal  and Drainage  Act, 1873 the State did anything other  than  what the  law permitted.  Therefore, by constructing  the  canals and  allowing  water  to  flow along  it  the  State  merely exercised  its  statutory  authority.   Further,  there   is nothing  to  show  that  there  was  any  want  of  care  in constructing the canal and so no question of negligence will arise  in constructing the canal and allowing water to  flow along  the  canal in question.  Here, what has  happened  is that  at  the point where prior to 1946 the water  from  the canal  was allowed to flow into the silting tank  through  a nallah, there was an opening which was plugged in that year. Here, it is established that over a year after that  opening was plugged by the State a breach of about 30 or 40 feet was caused.  This occurred on August 15, 1947.  It has not  been shown  that the breach could have been caused by an  act  of God  or an act of third party.  The contention of the  State that it was caused by heavy rains in the catchment area  has not been found to be true  If, therefore, there is  material from  which it could be inferred that the breach was  caused by  reason  of  negligence  on the  part  of  the  State  in inspecting the banks of the canal and in (1)  [1964] 2 W L.R. 164 294 particular  that  portion of it where the  breach  had  been caused the State would be liable in damages.  This would be,



so  not  by  the  operation  of  the  rule  in  Rylands   v. Fletcher(1) but by reason of negligence. The sole ground upon which the liability of the State  could be established in this case would be negligence of the State in  properly maintaining the banks of the canal.   For  this purpose it would be relevant to consider whether there  were periodical   inspections,  whether  any  breaches   or   the development  of cracks were noticed along the banks  of  the canal and in particular at the place where the breach  ulti- mately  occurred or whether any erosion of the banks  parti- cularly at the place where one of the banks had been plugged had  been  noticed and no action or timely action  had  been taken  thereon.  There is evidence to show that  the  canals were  being regularly inspected.  That, however, is not  the end  of the matter.  Immediately after the  breach  occurred some reports were made and as pointed out by my brethren  in their  judgments  they  were not  placed  before  the  court despite  its  order requiring their  production.   When  the matter  went up before the High Court it was said  that  the records  had  been  destroyed in the year  1958  or  so  and therefore  they could not be furnished.  This action on  the part of the State is manifestly unreasonable and the legiti- mate  inference that could be drawn from it is that  if  the documents had been produced they would have gone against the State  and  would  establish its negligence.   In  it  could legitimately  be  presumed  that  the  State  was  negligent inasmuch  as it had deliberately suppressed evidence in  its possession which could have established negligence.  In  the circumstances of this case I do not think it appropriate  to refer to the rule of evidence res ipsa loquitur. Appeal No. 416 dismissed and Appeal No. 417 allowed (1) [1968] L.R. 3 H.L. 330 295