Holding

The respondents, as owners of the dam, were negligent in failing to maintain an appropriate water level and therefore liable for damages; the release of water could not be treated as an act of God.

Summary

The appellants, owners of agricultural land adjacent to the Mazum dam, claimed compensation for loss of fruit‑bearing trees after the State of Gujarat released 60,000 cusecs of water from the dam during heavy monsoon rains. The respondents argued that the release was necessitated by an act of God and was in the public interest, while the appellants alleged negligence in failing to keep the dam water level sufficiently low to anticipate the rains. The Supreme Court held that, as owners of the dam, the respondents bore the onus to prove they had maintained a reasonable water level and that the rains were unforeseeable; they failed to discharge this burden, and the release could not be treated as an act of God. Applying the principle of strict liability from Rylands v Fletcher, the Court found the respondents negligent and awarded the appellants Rs. 5,00,000 in damages, with interest and costs, under its powers under Article 142.

Issues considered

Whether the release of water from the dam constitutes negligence on the part of the respondents or is an inevitable act of God.
Whether the respondents, as owners of the dam, are liable under the doctrine of strict liability (Rylands v Fletcher).
Whether the appellants are entitled to compensation despite the absence of precise proof of the exact quantum of loss.
Determination of the appropriate quantum of damages.

Legislation cited

Code of Civil Procedure, 1908s. 80
Constitution of Indias. 142

Subjects

compensationnegligenceact of Godstrict liabilityRylands v Fletcherdamwater releasedam safetypublic interestArticle 142Section 80 CPCdam liability

Judgment

(20 l 6] 2 S.C.R. 772

A VOHRA SADIKBHAI RAJAKBHAI & ORS.
.v.
STATE OF GUJARAT & ORS.
(Civil Appeal No. 1866of2016)
B MAY 10, 2016.
[A.K. SIKRI AND R.K. AGRAWAL, JJ.J
Compensation:
Damage to private property - Claim for compensation - Release
c of 60, 000 cusecs of water from dam - Because of release of water.
land of appellants with standing fruit bearing trees got submerged
resulting in destruction of many trees - Whether the act of releasing
the water from the dam amounted to negligence on the part of
respondents or it was inevitable due to heavy rains and be treated
as an 'act of God' - Held: It was incumbent upon the respondents
D
to demonstrate, by adequate evidence, that the water in the dam
was kept at reasonable and proper level to take care of normal
rains; that the rains in the said monsoon season were more than the
ordinary rains which could not be foreseen; and that the public
purpose was served in taking the decision to release the water which
E prevented larger catastrophe - Merely by saying that the level of
water in the dam increased because of monsoon rains and that the
waler was released in public interest cannot be treated as discharging
the burden on the part of the respondents in warding off the
allegation of negligence - In view of the principle laid down in
*Rylands v. Fletcher, onus was on the respondents to discharge
F
such a burden, and it has miserably failed to discharge the same -
On that basis, there was a negligence on the part of the respondents
which caused damage to the fields of the appellants - In exercise of
power under Article 142 of the Constitution, damages awarded to
the tune of Rs. 5, 00, 000 - Negligence.
G Quantum ofdamages - Determination of- Held: Where a wrong
has been committed, the wrong-doer must stiffer from the impossibility
of accurately ascertaining the amount of damages - Likewise, the
party claiming compensation must give the best evidence to prove
damages.
H
772
VOHRA SADIKBHAI RAJAKBHAI v. STATE OF GUJARAT 773

Allowing the appeal, the Court A
HELD: 1. Since the dam is constructed and maintained by
the respondents and the appellants suffered losses as a result of
release of water from the said dam, onus was on the respondents
.to prove that they had taken proper care in maintaining appropriate
level of water in the dam taking into account the provision for B
the water that can get accumulated in the said dam due to the
forthcoming rainy season. The respondents are the owners of
· the dam in question. They are expected to keep the said dam in
such a condition which avoids any loss or damage of any nature
to the neighbours or passers by. The doctrine of strict liability,
which has its origin in the case of •Rylands v. Fletclter will have · C
application in the instant case. [Para 15) [781-B-D)
State of Punjab v. Modern C1:1ltivators 1965 AIR 17 :
1964 SCR 273; Indian Council for Enviro Legal Action
v. Uni01.1 of India (1996) 2 .Scale 44; Kusuma Begum
(Smt.) v. Tlte New India Assurance Co. Ltd. JT 2001 (1) D
SC 37; Jay Laxmi Salt Works (PJ Ltd. v. State of Gujarat
1994 (4) SCC l; S. Vedantacharya & Anr. v. Highways
Departmeht of South Arcot & Ors. 1987 (3) SCC 400 -
relied on.
*Rylands v. Fle;cher (1868) LR 3 HL 330; Rickards v. E
Lothian (1913) AC 263; Read v. J. Lyons & Co (1947)
AC 156 CHL); Nicholas v. Marsland (1875) LR 10
Ex.255; Greenock Corporation v. Caledonian Railway
(1917) AC 556 (HL) - referred to.
2. Wbat needs to be examined is as to whether the damage F
to the property of the appellant was the res.lilt .of an inevitable
accident or unavoidable accident which could not possibly be
prevented by the exercise of ordinary care, caution and skill, i.e.
it was an accident physically unavoidable. Undoubtedly, it came
on record that the overflow of dani was occasioned by torrential
and heavy rains. However, the appellants specifically pleaded that G
the respondent authorities did not keep the level of water in the
dam sufficiently low to take care of the ensuing monsoon rains.
They have, thus, set up the case that there was a negligence on
the eart of the respondents in not taking care of the forthcoming
monsoon season and keeping the water level in the dam at H
774 SUPREME COURf REPORTS [2016] 2 S.C.R.

A sufficiently low level to absorb the rainfall which was going to
rise the water level in the dam. The respondents have not refuted
the said averment of the appellants. The only defence put up by
them was that the overflow of the water in thedam was occasioned
by the rains in the monsoon season which compelled the
authorities to release the water from the dam in larger public
B
interest. It is a matter of common knowledge that with advanced
technology available with the Meteorological Department in the
form of satellite signals etc, there is a possibility of precise
prediction of the extant of rainfall in the monsoon season. In view
of the principle laid down in Ryhmds v. Fletc/ier, onus was on the
c respondents to discharge such a burden, and it has miserably
failed to discharge the same. On that basis, there was a negligence
on the part of the respondents which caused damage to the fields
of the appellants. [Paras 26, 27, 28) [788-A-H, 789-A)
3. Quantum of damages. No doubt, actual/exact proof of
D damage was not given by the appellants. At the same time, the
trial court had appointed Court Commissioners to verify the
position of agricultural lands of the appellants. The said Court
Commissioners, also known as panclias, had visited the site and
submitted their report for inspection confirming the loss suffered
by the appellants due to submergence of the agricultural fields of
E the appellants. In this report, they specifically pointed out that as
many as 1500 boar trees were,_µprooted and washed away as a
result of the release of water from the dam which flooded the
fields of the appellants. Several photographs were also annexed
along with the report to support the aforesaid conclusion. This
F kind of evidence, which went unrebutted, proves that the
appellants have, in fact, suffered damages. No l!oubt, the
appellants have not led any evidence to show actual cost of each
tree, in order to arrive at the precise quantum of damages.
However, even in the absence of such an evidence showing exact
loss suffered, the appellants would still be entitled to reasonable
G compensation once factum of suffering loss stands proved. Where
a wrong has been committed, the wrong-doer must suffer from
the impossibility of accurately ascertaining the amount of damages.
Likewise, the party claiming compensation must give the best
evidence to prove damages. In the instant case, the loss is not ,
H only on account of rain, though a part thereof can be attributed to
VOHRA SADIKBHAI RAJAKBHAI v. STATE OF GUJARAT 775

I . •
the natnre, but ,also due to the neghgence on the part of the A
respondent authorities in not taking due precautions in time which
could have avoided some loss/damage, if not entirely. If damage
has resulted from two or three causes, namely, from an act of
God as well as a negligent act of a party, the award of damages
can be apportioned to compensate only the injury that can be
B
attributed to the negligent act of the respondents. [Para 29) [789-
B-G)
Workman v. GN. Ry. Co. (1863) 32 LJQB 279 -
referred to.
4. The appellants claimed damages to the tune of Rs. c
21,50,000/-, for which no specific proof/evidence is given. At the
same time, one agriculturist, had appeared as the plaintiffs'
witness and deposed that he was having the agriculture
experience for the last 20 years, particnlarly experience of
cultivation of boar as well as its profit and income. He has given
figures of losses which the appellants had to suffer due to damage D
of plantation and loss of income, etc. thereby trying to justify the
claim of damages made by the appellants, but those figures are
not supported by any evidence. However, loss has occurred and,
therefore, a reasonable compensation can still be awarded.
Exercising power under Article 142 of the Constitution ends of E
justice would be met in awarding damages to the tune of Rs.
5,00,000/-. [Para 30) [789-H, 780-A-B)
Case Law Reference
(1868) LR 3 HL 330 referred to Para 15
(1913) AC 263 referred to Para 16 F
(1947) AC 156 (HL) referred to Para lJ
1964 SCR 273 relied on Para 18
(1996) 2 Scale 44 relied on Para 18
2001 (1) SC 37 relied on Para 18
1994 (4) sec 1 relied on Para 18
(1875) LR 10 Ex.255 referred to Para23
(1917) AC 556 (HL) referred to· Para 24
1987 (3) sec 400 relied on Para25
(1863) 32 LJQB 279 referred to Para29 H
776 SUPREME COURT REPORTS [2016) 2 S.C.R.

A Civil Appellate Jurisdiction: Civil Appeal No. 1866of2016.
From the Judgment and Order dated 27.06.2011 of the High Court
of Gujarat atAhmedabad in First Appeal No. 1360 of201 l.
O.P. Bhadani, Ashok Anand, Rakesh Kumar Singh, Advs., for the
Appellants.
B
Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Puja Singh, Advs., for
the Respondents.
The Judgment of the Court was delivered by
A.K. SIKRI, J. 1. The essence of the issue that needs to be
C decided in the instant appeal is captured by the appellants by formulating
the following substantial question of law; though the same is not
appropriately framed:
"Whether gross negligence in not maintaining particular level of
water in the dam by the respondents; that has resulted into damage
D and destruction to the plantation of the appellants, causing loss of
livelihood, could be said to be an 'Act of God'?"
2. It so happened that the respondents had constructed and
maintained a dam. 60,000 cusecs of water from this dam was released,
which flooded the land of the appellants and destroyed the plantation
E therein. As per the respondents, the water had to be released from
the dam as it reached alarming level because of heavy rains and non-
release would have breached the dam. The action was, thus, taken
-in public interest and it was occasioned because of the rains, which
was an act of God. The appellants, on the other hand, contend that it
was sheer negligence on the part of the respondents in not maintaining
F
low level of the water keeping in mind the ensuing monsoon season
and, therefore, the damage which the appellants have suffered has
direct nexus or causal connection with the aforesaid act of negligence
and it cannot be attributed to the rains. It is, thus, pleaded that the
respondents cannot term it as an act of God and excuse themselves
G from the tortious liability.
3. There is hardly any dispute on the factual matrix under which
the aforesaid issue has cropped up for determination.
- 4. The appellants herein are the owners ofland, which is proximate
to the Mazum dam that has been built over river Mazum. They had
H grown hybrid berry trees over the said land which, they claim, belong to
VOHRA SADIKBHAI RAJAKBHAI v. STATE OF GUJARAT 777
[A.K. SJKRI, J.]

their ancestors and were earning their livelihood from the fruits of A
the said trees. Respondents have built a dam over River Mazum in
the nearby area for supplying water for irrigational purpose and thereby
to earn revenue. In June 1997, there were heavy rains in the said
area which resulted in overflowing of the water in the dam. In order
to save the dam, the respondents released nearly 60,000 cusecs of
B
water. This release of water flooded the fields of the appellants. With
the submerging of the land of the appellants, all the trees standing on
the land got uprooted resulting in destroying the whole cultivation of .
hybrid berries. According to the appellants, there entire 8 bighas of
agricultural land became part of the river Mazum and the only source
oflivelihood was lost. c
5. The appellants_ claimed compensation for the damage done to
the trees standing on the said land by serving legal notice to the
respondents under Section 80 of the Code of Civil Procedure, 1908.
Damages and compensation to the extent of ~ 21,50,000 was claimed
alleging that it happened due to gross negligence and lack ofadministration D -
on the part of the respondents. The case.set up in the notice was that
the respondents had stored more than the retention capacity of the
water in the dam during the inonth of June 1997 despite knowing fully
well that during the ensuing rainy season there would be more flow of
water in the dam. This act on the part of the respondents was termed
E
as an act of gross negligence and lack of good administration. No
reply to the notice was given by the respondents, which forced the
appellants to file a civil suit in April 1998 against the respondents for
a compensation of~21,50,000.
6.The trial court appointed Court Commissioners to verify the
position of the agricultural land of the appellants and report the ground F
situation to the Court. The team ofCourtCommissioners, known as ·
pallchas, who visitecr-the site, submitted their'report for inspection
confirming the submergence of the agricultural fields of the appellants.
They also reported that due to this submergence, the trees of the
appellants grown on the said land were uprooted and were lying amidst G
the mud and sand brought by the river water. In this report, they also
mentioned that as many as 1500 boar trees were uprooted and washed
away due to the said floods. Several photographs were also annexed
with the report in respect of the aforesaid inspection carried out by the
Court Commissioners.
H
778 SUPREME COURT REPORTS (2016] 2 S.C.R.

A 7. Respondents contested the suit inter a/ia on the ground that
the place where the said dam, known as Mazum dam Water Scheme,
is constructed was situated nearby the village Volva of Modasa, which
is 33 kms. away from the place of the appellants. It was further stated'--
that due to heavy rains the water level of the dam hat! gone abnormally
high and, therefore, there was no option but to release further water
B
flow from the dam in the river to control the floods. For this purpose,
advance information was given to the offices such as the Head of
Departments, Revenue Authorities, etc. It was also stated that during
the monsoon season at what level the capacity of the water is to be
filled in the Mazum dam is decided in advance. But in the eventuality
c of the heavy rain fall at the upper side areas, to maintain the level of the
water dam, the additional water received from the upper areas are
released into the river by opening the doors of the dam so that any
damage to the dam can be prevented. This decision of how much
water has to be released into the river is taken by the Competent
Officer. On that basis, it was pleaded that no compensation was
D
payable as the respondents were forced to take the decision to avert
natural calamity and this decision was occasioned because of excessive
rain, which was an act of God.
8.0n the basis of pleadings, following issues were framed by the
trial court:
E
"(i) Whether plaintiff proves the suit claim?
(ii) Whether plaintiffs are entitled to get the interest on suit claim?
If yes, at what rate?
(iii) Whether plaintiffs prove that they have given legal notice to
F the defendants?
(iv) What order and decree?"
9. Though Issue No.3 was decided in favour of the appellants
holding that a proper notice was served upon the respondents under
Section 80 of the Code of Civil Procedure, 1908 before filing the suit,
G insofar as Issue No. I is concerned, the findings of the trial court went
against the appellants. The trial court held that the respondents were
forced to release the water due to the heavy rains. The trial court also
found that land of the appellantsis situated adjacent to the river bank
and, therefore, due to heavy rain, the river could have overflown resulting
in entering of the water into the fields of the appellants in any case. It
H
VOHRA SADIKBHAI RAJAKBHAI v. STATE OF GUJARAT 779
[A.K. SIKRI, J.]
.
further held that action of the respondents in releasing the water from A
dam was a prudent action keeping in view that minimum damage is
caused to the public at large because of the heavy rains, which is
dependent upon the nature. The trial court further held that the appellants
had not given specific evidence about the actual loss, i.e. how many
trees the appellants were having and how many out of those trees
B
were washed away in the water. Likewise, the appellants had also
failed to produce the evidence with regard to the price of the produce
allegedly destroyed by obtaining the information in this regard from
the Agricultural Produce Marketing Committee. Though the appellants
had examined one witness, he had given only oral testimony without
any documentary support. The trial court also concluded that the c
· appellants could not prove that they had suffered damage and loss due
to the negligence on the part of the respondents. On the basis of the'
aforesaid findings, the suit of the appellants was dismissed. The
appellants preferred ari appeal against t!Je said j_udgment, which has
also been dismissed by the High Court vide judgment dated June 27,
D
2() 11, which is impugned in the instant appeal.
I 0. A perusal of the judgment in appeal would reflect that since the.
water had to be released from the dam, as a result of excessive rain, in
order to see. that less damage is caused, it was a force majeure
circumstance and, therefore, the appellants were not entitled to any
compensation. E

11. We may state at the outset that there is no dispute on basic
facts. It is admitted by the respondents that a decision was taken to
release the water from the dam. It has also come on record that the
respondents had decided to release 60,000 cusecs of water. Because
of the release of this water, land of the appellants with standing fruit -F
bearing trees got submerged. It resulted in uprooting and destroying
many trees. The panchas, who were appointed by the Court to visit
the site have submitted their report to this effect stating that almost
1500 trees were damaged. On these facts, two aspects need
co~sideration, which are: · G
(a) Whether the act of releasing the water from the dam would
amount to negligence on the part of the respondents or it was inevitable
due to heavy rains and is to be treated as an 'act of God'?
(b) If the answer to the aforesaid question is in the affirmative,
whether the appellants would be entitled to some compensation even in H
780 SUPREME COURT REPORTS [2016] 2 S.C.R.

A the absence of proof of actual/exact damage caused?
12. We may state at the outset that neither the appellants
prosecuted their case properly nor the respondents contested it
appropriately. No doubt, the appellants submitted that there was
negligence on the part of the respondents in not ensuring that the
B water level is maintained at sufficiently low le_vel to meet the exigency
of accumulation of further water because of the ensuing rains as they
have also pleaded that the plantations in their fields got damaged
because of the release of water by the appellants. However, they have
not led any specific evidence to show the loss. It has also not come on
record as to at what level the water was in the dam before the rains. On
c the other hand, the respondents took the plea that the water level in the
dam rose because of torrential rains which has resulted in overflowing
of the water in the dam and the decision to release the water became
necessary in the larger public interest. However, the respondents have
also not properly controverted the allegations of the appellants that
D water was not maintained at an appropriate level to take care of
ensuing monsoons. They have also not supported their plea by
leading any evidence to the effect that had the water been not released
it would have breached the dam and that act would have caused
more public harm. The courts below also took a myopic view by simply
going by the fact that the action on the part of the respondents in releasing
E the water from the dam was necessitated because of heavy rains and
those heavy rains are an 'act of God'.
13. No doubt, both the parties agree that the overflowing of the
dam was caused due to heavy rains. However, the question is as to
whether the respondents were supposed to take reasonable care in this
F behalf by keeping the level of water in the dam sufficiently low in
order to meet the. exigency of ensuing monsoon? This would have
depended upon another factor, namely, whether the rains in the said
season were much more than normal and beyond the expected level or
it was known before hand, as per the prediction of the Meteorological
G Department that there would be heavy rains? It is ~nly on that· basis
one can find out as to whether there was negligence on the part of the
respondents in keeping the particular level of water in the dam by not
taking into consideration the possible flow of the water as a result of
expected rains. ·
14. The admitted facts on record are that the damage to the
H
VOHRA SADIKBHAI RAJAKBHAI v. STATE OF GUJARAT 781
[A.K. SIKRI, J.]

trees and plantation of the appellants is caused due to the release of A
. water from the dam by the respondents. A specific plea is raised that
the respondents had stored more than the retention capacity of the
water in the dam during the month of June I 997 despite knowing fully
well that during the ensuing monsoon season there would be more
flow of water in the dam.
B
15. Since the dam is constructed and maintained by the
respondents and the appellants suffered losses as a result of release of
water from the said dam, onus was on the respondents to prove that·
they had taken proper care in maintaining appropriate level of water in
the dam taking into account the provision for the water that can get
accumulated in the said dam due to the forthcoming rainy season. The
c
respondents are the owners of the dam in question; They are expected
to keep the said dam in such a condition which avoids any loss or
damage of any nature to the neighbours or p~ssers by. The doctrine of
strict liability, which has its origin in the case of Rylands v. Fletcher',
will have application in the instant case. Following observations of D
Blackburn, J. state the principle of strict liability:
"The rule of law is that the person who, for his own purpose,
brings on his land 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 E
which is the natural consequence of its escape."
The learned Judge went further to expound the aforesaid
principle in the following manner:
"The general rule as above stated seems on principle just. The
person whose grass or corn is eaten down by the escaping cattle F
of his neighbour, or whose mine is t'looded by the water from his
neighbour's reservoir, or whose cellar is invaded by the filth of
his neighbour's privy, or whose habitation is made unhealthy by
the fumes and noisome vapours of his neighbour's alkali work
is damnified without any fault of his own; and it seems but G
reasonable and justthatthe neighbour, who has brought something
on his own property which was not naturally there, harmless to
other so long as it is confined to his own property, but which he
knows to be mischievous if it gets on his neig~bour's, should be

I (1868)LR 3 HL330 H
782 SUPREME COURT REPORTS [2016] 2 S.C.R.

A obliged to make good the damage which ensues if he does not
succeed in confining it to his own property. But for his act in
bringing it there no mischief could have accrued, and it seems
but just that he should at his peril keep itthere so that no mischief
may accrue, or answer for the natural and anticipated
consequences."
B
16. Lord Cairns, while agreeing wit~ the aforesaid view of
Blackburn, J., clarified that this rule shall apply where there was non-
natural user of land. This concept of non-natural use of land was
succinctly brought out by the Privy Council in Rickards v. Lothian',
as is clear from the following formulation:
c
"It is not every use to which land is pui that brings into play
this principle. It must be 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."
D
17. In Read v. J. Lyons & Co.', another qualification to the
aforesaid rule was added, namely, the non-natural use by the offending
party should result in 'escape' of the thing from his land which causes
damage and so in the absence of'escape', the rule has no application.
E 18. The aforesaid principle has withstood the test of time as it is
not only followed by the courts in England in subsequent judgments
repeatedly, even this Court has adopted in certain cases and extended
to cover accidents arising out ofuse of motor vehicles on road. {See -
State of Punjab v. Modern Cultivators'; Indian Council for Enviro
Legal Action v. Union of India'; and Kusuma Begum (Smt.) v.
F The New India Assurance Co. Ltd.'}.
19. In Modern Cultivators' case referred to above, the damage
was caused by overflowing of water from a breach in a canal. This
Court held that use of land for construction of a canal system is an
ordinary use and not a non-natural use. The Court attributed negligence
G on the part of the authorities and awarded damages to the plaintiff
2 (1913}AC263
3
(1947}AC 156(HL}
' AIR 1965 SC 17
' ( 1996) 2 Scale 44
H 'JT2001 (l}SC37
VOHRA SADIKBHAI RAJAKBHAI v. STATE OF GUJARAT 783
[A.K. SIKRI, J.]

therein on the said findings of negligence. In this case, thus, the damages A
were awarded even when the use of land for construction of a canal
system was found to be an ordinary use.
20. In Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat',
this Court explained the ratio of Modern Cultivators in scholarly
manner, as follows: B
"12. Was the ratio in Rylands v. Fletcher modified by this Court
in Modern Cultivators? If so to what extent? What is its effect
on facts of this case? That was a case where the land of the
plaintiff used for silting operation was flooded due to escape of
canal water. It was claimed that in absence of proofofnegligence c
the suit was not liable to be decreed. The Court did not apply the
principle laid down in Rylands v. Fletcher:
"That any occupier ofland 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, D
even if he has been guilty of no negligence .... a principle
derivatively created from the rule of'strict liability' .... as canal
systems are essential to the life of a nation and land that is used
as canals is subjected to an ordinary use and not to unnlitural
use."
E
The Court preferred to rely on the principle developed by
American Courts on canal breaks and applied the principle of
'fault liability' which may even be inferred from circumstances.
The view of the High Court, therefore, that the rule of strict
liability was modified by this Court in Modern Cultivators does
not appear to be correct. 'Absolute liability', or'strict liability', and F
'fault liability' do not go together."
21. In Jay Laxmi's case, damage was caused by overflow of
water from a reclamation bundh constructed by the State of Gujarat
for reclamation of vast area of land from saltish water of sea. In this
case, this Court held the Government responsible as the said act was G
treated as violation of public duty and negligence which lay in defective
planning and construction of the bundh. On that premise, damages
were.awarded. The Court explained the jurisprudence of liability in
torts and. also the two principles, namely, 'strict liability' and 'fault
' (1994) 4 sec 1 H
784 SUPREME COURT REPORTS (2016] 2 S.C.R.

A liability', in paragraph 8 and thereafter enumerated other circumstances
which may fall in between 'strict liability' and 'fault liability', in paragraph
9. We would like to quote hereinbelow these two paragraphs for our
benefit:
"8. Winfield has defined tortious law arising from breach of a
B duty primarily fixed by law; this duty is towards persons generally
and its breach is redressable by an action for unliquidated damages.
In general, torts consist of some act done without just cause or
excuse.
"The law of torts exists for the purpose of preventing men from
c hurting one another whether in respect of their property, their
presence, their reputations or anything which is theirs."
Injury and damage are two basic ingredients of tort. Although
these may be found in contract as well but the violations which
may result in tortious liability are breach of duty primarily fixed
by the law while in contract they are fixed by the parties
themselves. Further in tort the duty is towards persons generally.
In contract it is towards specific person or persons. An action
for tort is usually a claim for pecuniary compensation in respect
of damages suffered as a result of the invasion of a legally
protected interest. But law of torts being a developing law its
E frontiers are incapable of being strictly barricaded. Liability in
tort which in course of time has become known as 'strict
· liability', 'absolute liability', 'fault liability' have all gradually grown
and with passage of time have become firmly entrenched.
'Absolute liability' or "special use bringing with it increased
F dangers to others" (Rylands v. Fletcher [LR (1868) 3 HL 330
: 37 LJ Ex 161 : (1861-73] All ER Rep I] ) and 'fault liability' are
different forms which give rise to action in torts. The distance
(sic difference) between 'strict liability' and 'fault liability' arises
from presence and absence of mental element. A breach of legal
duty wilfully, or deliberately or even maliciously is negligence
G emanating from fault liability but injury or damage resulting
without any intention yet due to lack of foresight etc. is strict
liability. Since duty is the primary yardstick to determine the
tortious liability its ambit keeps on widening on the touchstone
of fairness, practicality of the situation etc. In Donoghue v.
'
Stevenson [( 1932) AC 562 : 1932 All ER Rep I] a manufacturer
H
('

VOHRA SADIKBHAI RAJAKBHAI v. STATE OF GUJARAT 785
[A.K.' SIKRI, J.]

was held to be liable to ultimate consumer on the principle of A
duty to care, In Anns v. Merton London Borough Council
[( 1978) AC 728 : (1977) 2 All ER 492] it was, rightly, observed:
"[T]he broad general principle ofliability for foreseeable damage
is so widely applicable that the function of the duty of care is not
·so much to identify cases where liability is imposed as to identify B
those where it is not,. ..."
Truly speaking entire law of torts is founded and structured on
morality that no one has a rightto injure or harm others intentionally
or even innocently. Therefore, it would be primitive to class strictly
or close finality (sic finally) the ever- expanding and growing horizon c
oftortious liability. Even for social development, orderly growth
of the society and cultural refineness, the liberal approach to
.
tortious liability by courts is more conducive .
9. In between strict liability and fault liability there may be
numerous circumstances in which one may be entitled to sue for D
damages. And it may be partly one or the otL,1er or may be
both. In a welfare society construction of dam or bundh for
the sake of community is essential function and use ofland or
accumulation of water for the benefit of society cannot be
non-natural user. But that cannot absolve the State from its duty
of being responsible to its citizens for such violations as are E
actionable and result in damage, toss or injury. What is
fundamental is injury and not the manner in which it has been
caused. 'Strict liability', 'absolute liability', 'fault liability' and
'neighbour proximity' are all refine'ments and development of
law by English Courts for the benefit ofsocietyandthecommon F
man. Once the occasion for loss or damage is failure of duty,
general or specific, the cause of action under tort arises. It may
be due to negligence, nuisance, trespass, inevitable mistake etc. It
may be even otherwise. In a developed or developing society
the concept of duty keeps on changing and may extend to even
such matters as was highlighted in Donoghue v. Stevenson G
[(1932) AC 562 : 1932 All ER Rep l] where a manufacturer
was held responsible for injury to a consumer. They may
individually or even cottectively give rise to tortious liability. Since
the appetlant suffered loss on facts found due to action of
respondent's officers both at the stage of construction and failure
H
786 SUPREME COURT REPORTS [2016] 2 S.C.R.

A to take steps even at the last moment it was liable to be
compensated."
The Court, thereafter, explained that in order to become a claim
as actionable claim, it is necessary to determine that the defendant was
guilty of negligence.
B 22. There are two exceptions to the aforesaid rule of strict liability,
which were recognized in Rylands v. Fletcher itself, viz.: (a) where it
can be shown that the escape was owing to the plaintiff's default, or
(b) the escape was the consequence of vis major or the act of God.
An act of God is that which is a direct, violent, sudden·and irresistible
c act of nature as could not, by any amount of ability, have been foreseen,
or if foreseen, could not by any amount of human care and skill have
been resisted. Generally, those acts which are occasioned by the
elementary forces of nature, unconnected with the agency of man or
other cause will come under the category of acts of God·. Examples
are: stonn, tempest, lightning, extraordinary fall ofrain, extraordinary
D high tide, extraordinary severe frost, or a tidal bore which sweeps a
ship in mid-water. What is important here is that it is not necessary that
it should be unique or that it should happen for the first time. It is
enough that it is extraordinary and such as could not reasonably be
anticipated. We would like to discuss a few cases having bearing on
E this issue with which we are confronted in the instant appeal.
23. In Nicholas v. Marsland', the respondent owned a series
of artificial lakes on his land. In the construction and maintenance of
these lakes, there had been negligence. However, owing to a most
unusual fall of rain, which was so abnormal that could not have been
F reasonably anticipated, some of the reservoirs burst and carried
away four country bridges. The respondent was held not liable on the
premise that the water escaped by the act of God.
24. The aforesaid judgment in Nicholas's case was, however,
criticized by the House of Lords in Greenock Corporation v.
G Caledonian Railway'. In that case, the Corporation obstructed and
altered the course of a stream by constructing a concrete paddling
pool for children. Due to a rainfall of extraordinary violence, a great
volume of water which would nonnally have been carried off by the

' (1875) LR IO Ex.255
H ' (1917)AC 556 (HL)
VOHRA SADIKBHAI RAJAKBHAI v. STATE OF GUJARAT 787
[A.K. SIKRJ, J.]

stream overflowed the pad and caused damage to plaintiff's property. A
The House of Lords held that the rainfall was not an act of God and the
Corporation was liable to pay damages as it was its duty 'so to work as
to make proprietors or occupiers 011 a lower level as secure against
injury as they would have been had nature not been interfered
with".
B
25. Such a situation came up before this Court as well in S.
Vedantacharya & Anr. v. Hii:hways Department of South Arcot
& Ors.'°. In this case, this Court held that before heavy rain can be
accepted as a defence for the collapse of a culvert, the defendant
must indicate what anticipatory prevention action was taken. We
would like to quote the following passage from the said judgment: c
"State Government erected a reservoir adjoining the plaintiff's
land in order to provide drinking water facilities to a village in the
State. The State acquired a part of the plaintiff's land for the
purpose of constructing a channel for carrying the overflow
of water from the reservofr to a Nalla which was at a distance D
of about 1500 feet from the waste-weir of the reservoir. This
channel was however not constructed except to the extent of
250 feet on the side of the Nalla. Due to very heavy rainfall the
water from the reservoir overflowed into the waste-weir and
thereafter flowed over the plaintiff's land, causing considerable
E
damage to the land and the crops standing thereon. In a suit
by the plaintiff for damages they alleged that due to the negligence
of the State in not taking proper precautions to guard against
the overflow of water they had sustained the loss. The State
iriter alia contended that the loss was due to heavy rain which
was an act of God and therefore they were not Iiable and further F
that the construction of the reservoir was an act of the State in
the sovereign capacity and, therefore, it was not liable for the
tortious or negligent acts of its servants. It was held that the fact
that the danger materialised subsequently by an act of God was
not a matter which absolved the State from its liability for the
G
earlier negligence in that no proper channel for the flow or
overflow of water from the waster- weir was constructed by
it in time; that the act of the State in constructing tlie reservoir
for the supply of drinking water to its citizens at best could be
considered a welfare act and not an act in its capacity as a
'° (1987) 3 sec 400 H
788 SUPREME COURT REPORTS [2016] 2 S.C.R.

A sovereign; and that, therefore, the State was liable in negligence
for the loss caused to the plaintiff."
26. In nutshell, what needs to be examined is as to whether the
damage to the property of the appellant herein was the result of an
inevitable accident or unavoidable accident which could not possibly
B be prevented by the exercise of ordinary care, caution and skill, i.e.
it was an accident physically unavoidable. While examining this issue,
we have to keep in mind that the onus was on the respondents to
satisfy the aforesaid requirements.
27. Undoubtedly, it has come on record that the overflow of dam
c was occasioned by torrential and heavy rains. However, as pointed
out above, the appellants specifically pleaded that the respondent
authorities did not keep the level of water in the dam sufficiently low to
take care of the ensuing monsoon rains. They have, thus, set up the
case that there was a negligence on the part of the respondents in
not taking care of the forthcoming monsoon season and keeping thjL
D water level in the dam at sufficiently low level to absorb the rainfall
which was going to rise the water level in the dam.
28. The respondents have not refuted the aforesaid averment of
the appellants. The only defence put up by them was that the overflow
of the water in the dam was occasioned by the rains in the monsoon
E season which compelled the authorities to release the water from the
dam in larger public interest. In such a scenario, it was incumbent
upon the respondents to demonstrate, by adequate evidence, that the
water in the dam was kept at reasonable and proper level to take care
ofnormal rains; the rains in the said monsoon season were more than
F
the ordinary rains which could not be foreseen; and that the public
purpose was served in taking the decision to release the water which
prevented larger catastrophe. Merely by saying that the level of water
in the dam increased because of monsoon rains and that the water
was released in public interest cannot be treated as discharging the burden
on the part of the respondents in warding off the allegation of negligence.
G It is a miit;ter of common knowledge that with advanced technology
available with the Meteorological Department in the form of satellite
signals etc, there is a possibility of precise prediction of the extant of
rainfall in the monsoon season. In view of the principle laid down in
Rylands v. Fletcher, onus was on the respondents to discharge such a
burden, and it has miserably failed to discharge the same. On that
H
VOHRA SADIKBHAI RAJAKBHAI v. STATE OF GUJARAT 789
[A.K. SIKRI, J.]

basis, we are constrained to hold that there is a negligence on the · A
part of the respondents which caused damage to the fields of the
appellants.
29. This brings us to the question of quantum of damages. No
doubt, actual/exact proof of damage is not given by the appellants. At
the same time, we find that the trial court had appointed Court B
Commissioners to verify the position of agricultural lands of the
appellants. The said Court Commissioners, also known as panchas,
· had visited the site and submitted their report for inspection confirming
the loss suffered by the appellants due to submergence of the agricultural
fields of the appellants. In this report, they specifically pointed out that
as many as 1500 boar trees were uprooted and washed away as a c
result of the release of water from the dam which flooded the
fields of the appellants. Several photographs were also annexed
along with the report to support the aforesaid conclusion. This kind
of evidence, which went unrebutted, proves that the appellants have,
in fact, suffered damages. No doubt, the appellants have not led any D
·evidence to show actual cost of each tree, in order to arrive at the
precise quantum of damages. However, even in the absence of such
an evidence showing exact loss suffered, the appellants would still be
entitled to reasonable compensation oncefactum of suffering loss stands
proved. Where a wrong has been committed, the wrong-doer must
suffer from the impossibility of accurately ascertaining the amount of E
damages. Likewise, the party claiming compensation must give the
best evidence to prove damages. In the instant case, we find that the
loss is not only on account ofrain, though a part thereof can be attributed
to the ·nature, but also due to the negligence on the part of the
respondent authorities in not taking due precautions in time which could F
have avoided ·some loss/damage, if not entirely. Tf damage has resulted
from two or three causes, namely, from an act of God as well as a
negligent act of a party, the award of damages can be apportioned to
compensate only the injury that can be attributed to the negligent act of
.. the respondents {See Workman v. G.N. Ry. Co. 11 }
G
30. The appellants claimed damages to the tune of ~ 21,50,000,
for which no specific proof/evidence is given. At the same time, we
find that one Mohemmed lkbal Mohemmedalam Galivala, who is an
agriculturist, had appeared as the plaintiffs' witness and deposed that he
II (1863) 32 LJQB 279
H
790 SUPREME COURT REPORTS (2016] 2 S.C.R.

A was having the agriculture experience for the last 20 years, particularly
experience of cultivation of boar as well as its profit and income. He
has given figures of losses which the appellants had to suffer due to
damage of plantation and loss of income, etc. thereby trying to justify
the cfaim of damages made by the appellants, but those figures are
not supported by any evidence. However, it is not in dispute that loss has
B
occurred and, therefore, a reasonable compensation can still be awarded.
Exercising our power under Article 142 of the Constitution, we are of
the opinion that ends of justice woald be met in awarding damages to
the tune of~ 5,00,000. We have arrived at the above figure keeping in
view the statement of Mohemmed Ikbal Mohemmedalam Galivala,
c witness who appeared on behalf of the appellants, though not accepting
the figures given by him in its entirety, and the cross- examination
of the respondents of this witness on this aspect. The appellants
shall also be entitled to interest from the date of judgment of the trial
court, i.e. December 24, 2010 at the rate of 9% per annum and also
D the cost of the present appeal.
31. The appeal is allowed in the aforesaid terms. Decree be drawn
accordingly.
Devika Gujral Appeal all01red.

E