The State is liable for the loss caused to the plaintiffs due to the overflow of water from the reservoir, as the State was negligent in not constructing a channel for the overflow of water.

JUDGMENT - 1. This is an appeal by the State of Mysore challenging the orders passed by the two lower Courts granting damages to the plaintiff for loss caused by reason of water overflowing from a reservoir constructed for the residents of Nipani.

2. In order to provide drinking water facilities to the town of Nipani, the State Government erected a reservoir adjoining Survey Nos. 92 and 93 at village Arjuni. Survey Nos. 92 and 93 belong to the plaintiffs. The construction of the reservoir was completed in 1954 by the Water Works Department. By a notification under Section 4 of the Land Acquisition Act issued on September 27, 1955, Government proposed to acquire part of the land belonging to the plaintiffs for the purpose of constructing a channel for carrying the overflow of water from the reservoir to the Nala which is at a distance of about 1500 feet from the waste - weir of the reservoir. By private negotiation possession of the necessary land was taken by the State Government on October 21, 1956. However, the channel was not constructed except to the extent of about 250 feet on the side of the Nalla. The construction of the channel was not attempted from the waste - weir towards the Nalla. On November 14, 1957, there was heavy rainfall of 2 - 1/2 in four hours and the water from the reservoir overflowed into the waste - weir and thereafter flowed over the land belonging to the plaintiffs. Considerable damage was caused both to the land and to the crops. Plaintiffs therefore came to Court seeking damages for the loss occasioned to him by reason of the overflow of the water which had collected in the reservoir. Plaintiffs case was that due to the negligence of the defendant in not taking proper precautions to guard against the overflow, the loss was caused to the plaintiffs.

3. The defendant - State did not dispute the following facts, namely that the reservoir was built, that there was overflow due to heavy rains in November 1957 and that the loss assessed at Rs. 3,000/- was caused. The defendants stand, however, was that the Mysore Government through its Engineering Department had taken proper legal and timely action in this case and that adequate and proper compensation has been paid to the plaintiffs under the provisions of the Land Acquisition Act. It denied the contention of the plaintiffs that the plaintiffs had suffered loss to his land due to the negligent act of the servants of Government. Lastly it was contended that the Government was not liable for tortuous acts or negligent acts of its servants. It was their further contention that it was an act of God and therefore nobody was liable.

4. Before the trial Court plaintiffs examined plaintiff No. 1 and the defendant examined Balvant Appaji Chavan, an Overseer working at Nipani at the relevant period. The issues framed by the trial Court include the issue : "Does plaintiff prove that due to gross negligence of the employees of Defendant in Public Works Department in not challenging the excess water through especially built channel, damage was caused to the crops and the lands of the plaintiff?" This issue was answered in the negative and therefore the main claim of the plaintiffs about the damage to the land and crops was not allowed. A small decree for rent and damages to the standing crop was made. Against this decision the plaintiffs went in appeal and the appellate Court holding that there was negligence on the part of the servants of the defendant - respondent decreed the claim of the plaintiffs for damages to the extent of Rs. 2,700/-. Against this decision the defendant - State has filed this second appeal.

5. Mr. Kotwal arguing for the appellant, the State of Mysore, contended that the lower appellate Court had taken an erroneous view in regard to the liability of the State. It was also urged by Mr. Kotwal that loss which was due to the act of God could not be considered as due to the act of any State Department. His argument was that during the course of sever

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