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PATNA HIGH COURT
Rai and Ahmad JJ.
District Board Of Manbhum
Versus
Shyamapada Sarkar
A.F.A.O. No. 1523 of 1949 ;
Decided On : JULY 20, 1955
LOCAL SELF-GOVERNMENT ACT - [SECTION 79, 146] - LIMITATION - SPECIAL LAW OF LIMITATION - NOTICE - NUISANCE - CONTINUING WRONG - STATUTORY AUTHORITY - NEGLIGENCE - NON-FEASANCE - VIS MAJOR.
Fact of the Case:
The plaintiffs, who are the members of the joint Hindu family and residents of mohalla Dulmi within the Municipality of Purulia, instituted the suit for damages on the allegation that one jore tree standing on the District Board road fell on their residential house situated by the side of the road, and caused damage to its tiled roof and pucca walls and also smashed three rickshaws of the plaintiffs, which were then kept there in the compound. Their case was that in the year 1943 strong winds used to blow in that area and as a result thereof some trees had fallen and, therefore, they apprehended that the tree standing on the road in front of their house might also fall and damage their house. On this apprehension they wrote a letter to the District Board on 7-5-1943 and drew its, attention to the danger apprehended and requested that the branches extending on their premises should be lopped off, and, if possible, the tree itself might be cut down. Their allegation was that in spite of their information given to the District Board, the District Board did neither chop off the branches nor Cut down the tree with the result that on 26-5-1945 one of those jore trees, which stood there since some time before 1931 when the plaintiffs house was constructed, got actually uprooted by the storm and fell on the house of the plaintiffs causing damages as stated above. In the plaint they claimed that as a result of all this they were put to a total loss of Rs. 887/14/-. Out of this, the loss of Rs. 827/14/- was caused on the first day, i. e., on the day when the tree fell on the house and that of remaining Rs. 60.00 on days subsequent thereto as the rooted out tree was left lying on the premises in spite of reminders till 30-11- 1945.
Finding of the Court:
1. The suit is barred by the special law of limitation under Sec.146, Local Self-Government Act. 2. The jore tree was maintained on the road by the District Board in the performance of the statutory duty imposed upon it and as such the Board is not liable either for having that tree on the road or for the necessary consequences of its presence there. 3. The fall of the tree was not due to any negligence or failure of duty on the part of the District Board. 4. In any case a statutory body like a District Board when acting under a statutory authority is not liable for non-feasance.
Issues: 1. Was any notice served by the plaintiffs as required under the provisions of the B. & O. L. S. G. Act? If not, can the suit proceed? 2. is the suit barred under Sec.146, B, & O. L. S, G. Act? 3. Are the plaintiffs entitled to claim any damages? If so, to what extent? 4. To what relief, if any, are the plaintiffs enti-tied?
Ratio Decidendi: 1. The expression "anything done under this Act" used in Sec.146, Bihar and Orissa Local Self-Government Act when read with the definition of the word "Act" given in Sec.3, General Clauses Act, 1897 or Sec. 4, Bihar arid Orissa General Clauses Act, 1917 makes it clear that the expression "anything done under this Act" includes in it "anything omitted to be .done under the Act". 2. The wrong, if any, as alleged in this case can be either a nuisance or one covered by the rule in -- Raylands V/s. Fletcher, (1868) 1 Ex. 265 (I). But it is plain that the rule in -- Raylands V/s. Fletcher, also is not applicable to the facts of the present case. Jore tree is not poisonous in any sense nor dangerous per se; the plantation of such a tree on the District Board -road can neither be called a non-natural user of the land. 3. A right in jurisprudence is an - interest, respect for which is a duty and the violation or disregard of which is a wrong. - Where the wrong consists of a breach of a positive duty, i.e., to do something, the test to find out whether there is a continuing wrong is to see whether the duty is to continue to do that thing. If so, the omission to do that thing , is a continuing wrong during the time the omissi6n lasts. 4. Where the wrong consists of a breach of a negative duty i.e. to refrain from doing something, the test to find out whether there is continuing wrong is to see whether the wrongful act produces a state of affairs, every moments continuance of which is a new wrong (i e., which is a continuing source of injury) and is of such a nature as to render the doer of it responsible for the continuance. If so, it is a continuing wrong. 5. The defence of statutory authority, as pointed out in the law of torts by Salmond, has its most common and important applications in actions of nuisance. And further the indemnity extends not only to the act but also to all its, necessary consequences. 6. The liability to repair in the case of highways and bridges, is an exception from the general law. At common law the remedy for want of repair in highways and bridges was not by suit against the surveyor or justices but by presentment or indictment against the country or against some individuals thereof for or in the name of all the rest.
Final Decision: Appeal allowed and the judgments of the Courts below set aside with the result that the suit should stand dismissed.
Ahmad, J.
1. The District Board of Manbhum, who is the defendant in the suit, is the appellant. It is a body corporate constituted under the Bihar and Orissa Local Self-Government Act. By Section 79 of that Act, it has the authority to plant trees by the side of the road. The plaintiffs, who are the members of the joint Hindu family and residents of mohalla Dulmi within the Municipality of Purulia, instituted the suit for damages on the allegation that one jore tree standing on the District Board road fell on their residential house situated by the side of the road, and caused damage to its tiled roof and pucca walls and also smashed three rickshaws of the plaintiffs, which were then kept there in the compound. Their case was that in the year 1943 strong winds used to blow in that area and as a result thereof some trees had fallen and, therefore, they apprehended that the tree standing on the road in front of their house might also fall and damage their house. On this apprehension they wrote a letter to the District Board on 7-5-1943 and drew its, attention to the danger apprehended and requested that the branches extending on their premises should be lopped off, and, if possible, the tree itself might be cut down. Their allegation was that in spite of their information given to the District Board, the District Board did neither chop off the branches nor Cut down the tree with the result that on 26-5-1945 one of those jore trees, which stood there since some time before 1931 when the plaintiffs house was constructed, got actually uprooted by the storm and fell on the house of the plaintiffs causing damages as stated above. In the plaint they claimed that as a result of all this they were put to a total loss of Rs. 887/14/-. Out of this, the loss of Rs. 827/14/- was caused on the first day, i. e., on the day when the tree fell on the house and that of remaining Rs. 60.00 on days subsequent thereto as the rooted out tree was left lying on the premises in spite of reminders till 30-11- 1945.
2. The suit was contested by the defendant District Board. It contended that the tree was not standing in a dangerous condition and that the reports submitted to it, both by the Sectional Officer and the Engineer, were to the effect that the trees there were in quite sound state and that there was no fear of those trees being uprooted in the near future. It further, inter alia, pleaded that the facts alleged in the plaint did not show any cause of action against it and the suit was barred by the special law of limitation, as prescribed in Sec.146, Local Self-Government Act, and that no proper notice was served on the defendant.
Its specific defence was that the tree which had fallen had been planted by the District Board in the performance of the statutory duty imposed upon it and its fall was not due to any negligence on its, part or due to any wilful default in the performance of that statutory duty. It was, according to it, a, case of vis major for which the defendant could not be held liable in law. It also pleaded that the damage caused by the fall of the tree on the tiled roof of the house did not amount to more than Rs. 129/- and the cost of repairing the rickshaws could not exceed Rs. 80.00 in all. On these pleadings the Court framed the following issues: "1. Was any notice served by the plaintiffs as required under the provisions of the B. & O. L. S. G. Act? If not, can the suit proceed?
2. is the suit barred under Sec.146, B, & O. L. S, G. Act?
3. Are the plaintiffs entitled to claim any damages? If so, to what extent?
4. To what relief, if any, are the plaintiffs enti-tied?"
3. The two Courts below have concurrently found that the notice served on the defendant by the plaintiffs was legal and sufficient, as contemplated by the B. & O. Local Self-Government Act, that the suit was, not barred by the special law of limitation, as laid down under Sec.146, B. & O. Local Self-Government Act, that the falling of the tree was not d
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