Municipality of Bhiwandi and Nizampur v. M/S. Kailash Sizing Works

RAY, C.J.-This appeal is by certificate from the judgment dated 1& Ma~ch, · 1968 of the High Court of Bombay. Hl4 SUPREME COURT REPORTS [1975] 2 s.c.R. Th(: respondent filed the suit against the appellant Municipality for the recovery of Rs. 1,00,012/- as damages suffered to the r~spon­ dent's property on account of flood caused by acts of gross negligence on the part of the appellant. The High Cou1t 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 nal.Jah is a)Jout 45 feet in width. TI1e 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 water stored ·in the lake was bound to pass through the nallah to the creek. The appellant commenced the work oflaying cement slab across the nallah in about the second week of June, 1963. The centring work to support and s_ettle 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 Jake 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 f:ree and unobstructed by work of construc­ tion 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 7tly'days of July, 1963. Because of the, existimce 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 Bhiwandi 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 know­ ledge of the demolition of the Varala Dam. The appellant narrowed BHIWANDI MUNIC. V. KAILASH SIZING .. WORKS (Ray, C.J.) 125' the water-way near Teen Batti bridge to an extent that it was in­ sufficient for discharge of water from the increased catchment area, because of the demolition. The appellant with full knowledge of the consequences narrowed the water pass~ge, put a sl~b 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 B · 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· llre.· :five bridges over the nallah. The portion of the nallah. which lies between Habsanali bridge and Lendi bridge was covered with con- e . crete 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 resvondent. "This state of affair~ conti.nued fo.r · three days. · The narrowing of the water-way and putting a slab on 1t at Habsanali bridge was ill-timed. This should have been commenced after the Varala Dam was reconstructed. If the appellant wanted to D proceed. with this work before the re-construction 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 shQ'llld have been removed before the mon­ soon. In arty 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 negli- E gence in not clearing the passage of debris was the principal cause of the flood. · · . Section 167 of the Bombay District Municipal Act confers pro-. tection 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 negli­ gently or not. The .. question, therefore, is, whether the Municipality, in the present case, can be said to have acted honestly. In Jones v. Gordon (11) Lord Blackburn pointed out the distinc­ tion 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 futther 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 dis-.. regard of consequences and mala fides stand-equal, where. the actual· state of inind of the actor is relevant. This is so in the eye of law,. (I) 2 A. C. 616. 126 SUPREME COURT REPORTS [ 197 5] 2 s.c.R. even if there might be variations in the degree of moral reproach deserved by recklessness and ma/a (ides. The Bombay,. as also, the Central, General Clauses Acts, help only in so far as they lay down that negli~ence does not necessarily mean ma/a. 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 aware of possible harm apd 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 appel­ lant will pay costs. Appeal dismissed. P.B.R.