This article has been written by M Drushika.
Table of Contents
Introduction
A tort is a civil wrong, and it etymologically means conduct which is twisted or crooked, i.e., not straight or right. According to Winfield, “tortuous law arising from, breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages”. Generally, torts are acts that are done without just cause or excuse. The two essential ingredients of tort are injury and damage.
They are found in the contract also, but they are pre-determined by the parties. The law of tort is a violation of right in rem, while the contract law is a violation of right in personam. Liability in tort, which over time has become known as the ‘strict liability’, ‘absolute liability’, ‘fault liability’ and ‘neighbour proximity’ has gradually grown and consolidated over time. Absolute responsibility or special use involving greater danger to others and fault liability are various forms that produce unlawful actions.
Mental elements are essential for differentiating strict liability and fault liability. An intentional, deliberate or even willful breach of a legal obligation is negligence, but an injury or damage resulting without any intention, etc is strict liability. As the standard of care is the main criterion for determining civil liability, its scope continues to expand depending on the feasibility of the circumstance, etc.
In Donoghue v. Stevenson, the producer was held liable to the consumer on the concept of duty to care. As per Dias, “liability in negligence is technically described as arising out of damage caused by the breach of a duty to take care”. The law of negligence involves the concept of reasonable duty which cannot be strictly confined. Yesterday’s right becomes today’s duty. The tort law, in particular, the branch of negligence should evolve constantly and should be transformed by the development of the society. Moreover, malfeasance, misfeasance and nonfeasance require knowledge, intention and malice. They apply in a few cases where the State or its officials are responsible for the violation of rights and duties and should also act with willful misconduct or bad faith.
Malfeasance means wrongdoing, i.e., doing an unlawful act. Misfeasance means the improper performance of a lawful act. Nonfeasance is neglecting duty by not performing the act which ought to be performed. In India, in most cases, a state would not be held liable for its negligent acts, thus denying a common man justice. Yet, a state would be held liable for its negligence only for its non-sovereign functions and not for its sovereign functions. However, a layman cannot be left helpless because the wrongdoer is the State. The question arises under what circumstances the State would be held liable for its negligent acts.
This is clearly explained in the case of “Jay Laxmi Salt Works v. the State of Gujarat”. This case is one of the landmark judgements in the Law of Tort and the judgement was delivered in the year 1994 by Justice R.M. Sahai. It clearly explains when the state could be held responsible for its negligent acts. The innocence of common citizens was taken into consideration while deciding on this case. This case has referred to many important concepts and cases, thus paving the way for providing justice to the common man.
“Truly speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to close strictly or close finally the ever expanding and growing horizon of tortious liability. Even for social development, orderly growth of society and culture the liberal approach to tortious liability by court would be conducive.”
– Justice R.M. Sahai
Brief facts of the case
The petitioner is the owner of Jay Laxmi Salt Works Pvt. Ltd. who had filed a suit against the State of Gujarat (respondent). The state of Saurashtra, now a part of Gujarat, came up with the idea of recovering large tracts of land from the saline water of the sea by creating a “bundh” (a dam) which was constructed in 1955.
The petitioner, even before the dam was built, had cautioned the authorities about the location of the weirs that were facing his factory. However, his request was not granted and the petitioner found the river level rising when there was a heavy rainfall. So, he approached the authorities asking them to lower the water level and prevent an increase in the flow near his factory but to no avail. In the first week of July 1956, the petitioner’s factory got flooded. Subsequently, the petitioner approached the respondents for redress and claimed nearly four lakh rupees as damages. After which a committee estimated the loss as Rs. 1,58,735 which was denied by the Government. Since the damages were not paid, the petitioner filed a case in the Trial court.
Case analysis and case comment
The jurisprudence underlying the development of tort law is based solely on the link between law and morality. The primary objective of this law is to provide damages to the party that has suffered legal injury.
Judgement by the Trial Court and the High Court
The trial court held that the Government was not negligent as it was an act of god and the suit was barred by the time. The petitioner unsatisfied with the judgement, approached the High Court. The learned judge overturned the judgement of the trial court and held that the loss suffered was not due to an act of God. The Court held the construction of the dam by the State as natural use of land as the objective was to prevent the land from becoming useless. After analysing the case, the judge observed that the act of designing and building the dam had been carried out through negligence and that the damage caused to the petitioner was attributable to the negligence of the officials involved in the planning and the construction of the dam. In particular, it was alleged that the petitioner manifested the negligence of the officials of the then state government in the erection of the dam, after which the flood water entered the appellant’s factory causing significant damage.
Nevertheless, the suit was dismissed by one of the judges mentioning that the suit was barred by time according to the provisions of Section 36 of the Limitation Act, 1908 as the suit was filed after two years. The other judge said that Section 120 of the Act would be applicable and not Section 36 of the said Act and held that the suit could be instituted within six years from the day on which the petitioner suffered damages.
Due to conflicting opinions, the case was referred to a third judge. The third judge after referring to the case of “Essoo Bhayaji v. The Steamship Savitri”, held that Section 36 of the Limitation Act applied. Also, the rule of strict liability as pronounced in the case of “Rylands v. Fletcher” has not in terms been modified in the case of “Punjab v. Modern Cultivators” and is thus not relevant to the instant case. The Judge held, “the words malfeasance, misfeasance and nonfeasance were to be understood, as synonymous with the compendious expression, ‘torts’ and therefore they must be read as equivalent to tort and the period of limitation would start from the time when the tort takes place”.
Judgement by the Supreme Court
The case was referred to the apex court under Article 133(1)(a) of the Indian Constitution. As the erection of the bundh was a common law duty, it stated that a common man should not go uncompensated if the Government has negligently performed its act. The court referred to the case of “Calveley v. Chief Constable of the Merseyside Police” and the case of “Dunlop v. Woollahra Municipal Council”, where it held malice as an essential element for tort of misfeasance. The expressions ‘malfeasance’, ‘misfeasance’, and ‘nonfeasance’ would, therefore, apply in certain cases where the State or its officers are liable only if they have breached duty of care with malice or bad faith.
The Court held that flawed planning in the erection of the bundh, thus, may be negligence, but cannot be either malfeasance, misfeasance or nonfeasance. The damage was caused to the petitioner for the negligence of the public servants and also for their failure in discharging the public duty. The Hon’ble Court not only held the state liable for its negligent acts but also held liable for the mistake and defective planning. Therefore, it was held that Section 120 of the Limitation Act applied and thus the suit was not barred by time.
It was also decided that the cause of action arose when the actual loss happened and not when the negligence took place. In this case, the suit was not barred by time as the limitation arose from the day the government refused to compensate the amount and the same was not communicated to the petitioner. The Supreme Court set aside the order passed by the two courts and held that in addition to Rs. 1,58,735 the petitioner should be paid interest at the rate of 6% per annum from the date of the decree till December 1982 and at the rate of 9% per annum from 1982 to December 1992 and at the rate of 12% per annum from January 1993 till the amount is paid.
The Concept of Liability of State in Tort
Law and justice are considered as the biggest concerns of mankind. The very law encompasses the principles which govern the liability of the state that should work in a just and fair manner. The state liability for damage in India is not easily determined as thought. Article 300(1) of the Indian Constitution grants power to sue the Government. Although more than 70 years have passed since the beginning of the Constitution, the parliament has not enacted any law as required by Article 300. Even the judgments pronounced by the courts are not uniformly related to State’s liability in tort.
In India, few significant judicial proceedings were pronounced before the enactment of the Constitution. A consideration of the pre-constitutional cases begins with the Supreme Court’s judgement in the case of “P & O Steam Navigation Co. v. Secretary of State”. In this case, a servant of the plaintiff company met with an accident, while driving a carriage drawn by a pair of horses belonging to the plaintiff, due to the negligence of the servants of the Government.
The plaintiff claimed damages for the loss suffered, but he could not receive any amount as the act took place while discharging a sovereign function. In the case “State of Rajasthan v. Vidhyawati”, the Collector’s driver while driving a government jeep, hit an individual walking on the pathway. The injured person died after a few days and his legal representatives sued the driver and the Government for damages.
This is the first post-constitutional judicial ruling, in which the Government was held liable for negligent acts of the servants even while doing sovereign functions. However, the contrary was declared in the case of “Kasturi Lal Ralia Ram Jain v. The State of Uttar Pradesh”, where it was held that the Government cannot be held liable for negligent acts of the servants even while exercising sovereign power. In this case, gold was seized by the police from the appellant but the items were stolen when they were in the police station. Yet, the state was not held responsible as the theft had taken place while exercising sovereign function.
The Concept of Negligence and Strict liability
Nowadays, negligence has become a common tort. Winfield has defined “Negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff”. Generally, the burden of proof lies on the plaintiff but if the doctrine of res ipsa loquitur applies, the burden of proof lies on the defendant.
An individual or a state could be held liable for negligence. In the presence of a duty, exercise may not be appropriate if what is done has not been authorized or has not been done in good faith. In “David Geddis v. Proprietors of Bann Reservoir”, the plaintiff was liable for negligence due to his failure in cleaning the tank resulting in overflow of water and breaching the legal right of the defendant. Thus, a person could be liable for negligence even for the unintentional acts that cause legal injury to others. The other major alternative to the rule of negligence is the rule of strict liability. Strict liability is the imposition of liability on one of the parties without determining fault (such as negligence). To constitute strict liability, there should be an unnatural use of land and a dangerous thing should escape and it should harm others. It is holding a person liable even without his fault.
Strict liability from the cases of Ryland v. Fletcher and Punjab v. Modern Cultivators
In Rylands v. Fletcher, the plaintiff, was held liable for the escape of the water from his reservoir which inundated the defendant’s mine causing damage to him. It was observed that the occupant of the land could be held liable for the escape of the dangerous thing that could cause harm, even if the occupant is not guilty of negligence, but would be liable under strict liability rule. In the case of State of Punjab v. Modern Cultivators, the plaintiff’s land was submerged with canal water, but the plaintiff was not held liable due to the absence of proof.
Supreme Court’s Application of Strict liability in current case
The Court relied on the principle postulated by the US courts on canal breaks and employed the principle of liability for fault, that can be deduced from the events. The Hon’ble Court’s view, therefore, that the no fault liability rule was changed by this Court to Modern Growers does not seem correct. The Court also held that ‘fault liability’ and ‘strict liability’ do not go together. Ergo, the rule of strict liability cannot be used in the instant case.
Conclusion and suggestions
Each individual has a legal right which cannot be taken away by anyone except under exceptional circumstances. Law enforces an obligation on everyone including the state to regard the lawful rights of others. Sometimes, the actions of the State may result in tort. When there is negligence or if there is a breach of the legal right of a person it should not go uncompensated. In this case, the judges have gone through various provisions of the Limitation Act and multiple case laws and have found the State guilty under negligence but precluded from invoking the strict liability.
The Supreme Court has meticulously delivered the judgement after taking note of various precedents. The foundation of the judiciary is based on people’s confidence in their ability to provide impartial and fearless justice. This judgement deserves a lot of appreciation as it has developed trust and confidence that even a common man can derive justice when there is a negligence of the State. More judgements of this kind should be delivered as they help in adding great value and also help in the progress of the judiciary.
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