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CHAPTER 1-"1\'1:::

TORTIOUS LIABILITY IN
WATER LAW
5
Tortious Liability in WaterLaw
ManJula Batra
Introduction
The lawof torts is an instrument for makingpeople adhere to standards
of reasonable behaviourand to respect the rights and interests of one another.
It is a body of formal rules applied by the courts for balancing conflicting
interests of civil nature arisingbetween different members of the society.The
term 'tort' isthe French equivalent of the English word 'wrong' and Roman law
term 'tortum' which means to twist and implies conduct which is tortious or
twisted.
Tort law has grown over a long period on the concept of right and duty
and the conditions and manner in which the right and duty are enforced by a
court of law. A tort or a wrong is said to have been committed whenever there
isa violation of a rightof a person or breach of dutybyanother person for which
the appropriate remedy is civil action for unliquidated damages. Before a
person can claim damages for an injury caused to his right he must first and
foremost establish the existenCe of a legal right which has been violated and
secondly a breach of legal duty by the person against whom damages are
claimed. Thus to establishtortious liabilityarisingon account of violationof an
individual's water rightsit isimportant to determine first the existenceof a right
in waterand secondlya duty not to violateit on the part of the offendingperson.
Under the Hipdu and Muslim Law tort had a much narrower defmition
than in English law.. The punishment of crimes in these systems occupied a
more prominent place than compensation for wrongs.2• The law of torts as
administered in India in modern times is the English law as found suita~le to
Indian conditionsand as modifiedby the Acts of the Indian Legislature. The
Indian law of Torts based on English Law is continued by Article 372 of the
Constitution which has bee~ interpreted to continue also the common law
principles applied in India. Therefore, tort law, as regards water rights in
india, is much the same as in England except with a variation in regard to the
use of water for irrigation purposes, for exampic, section 7 of the Easements
Act, 1882 specially lays down Ymitations on the exclusive rights of riparian
ownersto enjoythe uscof water. Pollutionof water is also controlled bysection
28(d) of the Easements Act. The principles of law of torts in india as applied
to water-related disputes, are to be found principally in common law of
England. Common law, which in a 'constitulional context means judicially
developedequity coverseverything whichis not covered by a statute. It knows
no gaps; there can be no casus omissions.
Water is the most important common resource of the people. Because
ofitspresence,the earth hasbecomea habitable planet for man and other forms
oflife.The usesof water arc multifold but so are its devastating effects when it
is left unregulated and uncontrolled. India is one of the wettest countries in
the world yet it is not makinguse of its blessingswisely. It uses only a tenth of
the rainfall it receives annually and if it does not learn to store water or
distribute water equitably there will be serious water shortages in future.
158 Waler Law in India

Besides, themisuse and arbitrary use of ground water resources is rampant


and isgraduallydepletingthe waterlabel.The practiceof storing water intanks
and ponds is grosslyneglected which isjeopardising not only agriculture but
also the common man's right of easy access to water for the fulfilment of his
basic needs. How are the problems to be tackled? Can a well codified law of
torts save our water resources from being completely anhilitated? Can
accountability be establishedthroughtort lawfor an equitable distribution and
wise utilisation of water and its resources?Surely, the task is giganticand only
a joint effort on the part of the government, the people and thelegislature can
help overcome it successfully. Whilelawisan important instrumentin bringing
about social change it cannot be a solution to any problem by itself. That this
is true is evident by a perusal of the various water legislations enacted in the
pre and post-Independence period despite which water rights of the people
continue to be harmed in one way or the other. The aim of this paper is,
therefore, to make the common-man aware of the gravity of the problem and
how best he can tackle it. The p~per ~ limited to focussing on how the law of
tort can be used as an instrument in redressing the grievancies of the people.
It attempts at makingthe reader conscious of his rights in water which when
violatedgive him a cause of civil action to seck compensationin the courts.
Since the basis of the law of tort is the maxim ubi jus ibi remedium
meaning(whenever there is a right there is a remedy, or as it is also sometimes
expressed "there is no wrong without a remedy" it will be worthwhile
appreciating how the courts of law have interpreted a particular action as
constituting a tort committed against a water right of a person and what
remedies, if at all, they haveissuedfor undoingor compensatingthe wrongso
committed. Each one of us is entitled to certain water rights irrespective of
whether the water flows in natural or artificial watercourses.These rights may
be natural, customary or statutory such as right to drinking water, right to
water for domestic purposes, right to water fortfultivation, etc. Such water
rightsare establishedeither bythe lawof nature, or bywayof easement, grant
or prescription (whether codifiedor not) or are simply created and protected
bylaw.
Since the last quarter of the nineteenth century to the present times
various kindsof issueshavebeen raised before the courts on matters relating
to the useofwater as a resource.Someof theseissueshavegivenrise to complex
questions, such as, what is the extent of a person's right to dam up water or
divert the course of a naturallyflowing water or to providea particular channel
for the flow of the accumulatedwater?Is this rightabsoluteor a restricted one?
Does a person oweany duty at lawto his neighbour if by his actions he causes
injury to his neighbours? Would he be liable at law for damages? Does a
person have a right to obstruct a regular flow of rain water or flood water to
protect his own fields or does he have a duty to take care that the obstruction
does not cause damage to his neighbour'sfields? Does the governmentenjoy
sovereign rights over water and if it does can it claim sovereign immunity
vis-a-vis the private rightsof the people? Are there any defences open to the
tort-feaser? Or does law allow "reasonable selfishness" in such matters and
permits "everyone (to) lookout for himself and protect his owninterest" first.
Tortious UobiJily in Water Law 159

As regards injurycaused to water based-resources, such as fish, there


is very little case law under tort and whatever there is faUs under the section
ofinlaDdfisheriesincluded in this paper. Most of the water cases concerning
damages that have been decided by the Indian judiciary, whether before or
after Independence, have been based either on the tort of neglig9nceor on the
rule of strict liability or its exceptions'Or on the tort of nuisance.
A. INJURYCAUSED BY NEGWGENCE
Negligence is the breach of dutycaused bythe omissionto do something
which a reasonable man, guided by those considerations, which ordinarily
regulate the conduct of hWDaD' affairs,would do, or doing something which
a prudent and reasonable man wouldnot do. Actionable negligenceconsistsin
the neglect of ordinary care and skill. by which neglect the plaintiff has
suffered injury to his person or property. According to Winfield, "negligence
as a tort is tile breach of legal duty to take care which results in damage,
undesired by the defendant to the plaintiff."
The most important constituent of negligence is the legal duty to
exercise due care on the part of the party complained of towards the party
complaining the former's conduct within the scope of the duty. A laymanmay
verywell ask what is this duty to take care all about? And who, pray! is the
complainingparty? According to the law of torts everyperson owes a certain
duty towards his neighbour who when aggrieved becomes the complaining
party.The lawof negligencerequires that everyact of an individual is subject
to the 'duty to take care' and 'neighbour' principles.Each principle isexplained
separately below.
In water cases falling under the tort of negligence the principle of the
'duty to take care' has been a subject of varied interpretations. Whether a
particular act constitutes a breach of duty or not depends on the existence of
proof of negligence but not always so. There have been occasions when the
courts have insisted on proof of negligence and there have also been si~uations
where the defendant has been held liable without proof of negligence. As far
as disputes between private parties are concerned the courts have been fairly
consistent in holding the defendanvortiously liable in case of a violation of the
principle of the 'duty to take care'.
In interpreting the 'neighbour' principle the courts have oflen sought
guidance from the observalAons made by Lord Atkin in the classic English case
of Donoghue v. Stevenson. l He states the principle as follows:
"The rule that you are to loveyour neighbour becomes in law,you must
not injure your neighbour; and the lawyer's question (who is my neighbour?)
receives a restricted reply. You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your
neighbour.Who, then, in lawis myneighbour?The answer seems to be persons
who are so closelyand directly affected by my act that I ought reasonably to
have them in contemplation as beingso affected when I am directing mymind
to the acts or omissions which are called in question." Thus, where there is a
breach in a canal as a result of whichwater escapes and damages the property
and enjoyment of virtually all the local people, then all these people become
the injured neighbourswhoare entitled to compensation in tort. On the other
hand, a 'sole' individual can also be the 'injured neighbour', for example, if a
160 WiIW Lawin IndiQ

penon buUda an cmbukmcot on hisland which diverta the course of a natural


watcr cbaoocl which eoten the adjoiDiQs fieldand damagestho crops therein
then the ownor of the adjoining field becomes the 'injured neishbolll"
deacrving compcoaation for the wroog done to him. A person', right to erect a
dam or a tank 00 hisland or dig a treocb in his land or divert a water-course,
whether natural or ~cial, is circunw:ribed by the 'duty to take care' and
'neighbour' principles. The cases cited belowexplainthe applicability of the
principlesby the courts.
1. AlterGlionJ/lmprovemefllS
Fora persoD to beliablefordamageresulting from hiscarelessnCSl there
must be a duty of care. The plaintiff should prove a duty OD the part of the
defendantsto use the care which a reasonable manin the positionof the latter
woulduse it to avoid caUiing harm to the plaintiffs. For example, an ownerof
land cxpoacd to inundation fromwaterflowing alooga fresh water channel or
frominroad olthe seahasthe rightto protecthisland byconatructing a bulwork
but the bulwork must actually be necessary, .appr~priate and such as not to
prejudice the rightsof the ownersof adjacentland. . An agriculturist has the
right to protect his land threatened ...atb rain-water or byflood byresortingto
precauuonary measures without regarding his neighbour. Once the right to
protect the land from flood is ceded to the land ownerhe is also r:ermittedto
enjoythe power of reasonablyjelecting bowto protect the land 2. But wben
the evil of floods has befallen him he ~ not permitted to shift it from his own
land into the land of his neighbours.} Similarly, while a lowerland owner
can protect himself from floods be cannot put a bundb acrossa nat~f stream
for better cultivation to tbe injury and damageof upper land owner
Everylandowner should so conduct operations on bis property as not
to affect injuriously the rightsof his neighbours. Where anyalteration is made
fromthe normal in land,the ownerof that land is liable for anyc. ~';'ge which
mayaccrue to his neighbour if there basbeen wantof care bythe landowner ~
making the alteration. InSarju Prasad & others v.Mahadeo Prasad & another;
the defendant dug a trench in his land but did not cover :~ properly. As a
consequence on account of heavy rains water accumulated in the trench in
suchquantitiesthat it naturally percolatedthroughthe soilinto hisneighbour's
ground thereby causing damage to the walls and ~(".. s of his house. The
Allahabad H~ Court foundthat no precautionswere takenbythe defendants
to prevent ram-water from accumulating in the trench which showed an
absenceofduty of care towardshisneighbours. The defendant washeld liable
for all the damageso caused.
The question which becomes pertinent at this stage is the extent of
liability to which a person violating the duty to take care principle should be
subjectedto.Shouldthecourtsinterpret the liability of the person whoviolates
the 'duty to take care' principle as absolute. If thisbe so then the result would
be that a man may not even be able to reasonably use his property as some
neighbour of his might complain that he had caused him an injury. While
explaining thisview in Ram 8hika v. Atjun Gopull6 the Indore Benchcited with
approval Lord Bramffll B's observation made in Nield v, London and North
Western Rili/way Co. that "law allows what may be termed as a kind of
reasonableselfishness in such matters".
TortiOUl Uflbility in Waler Law 161

It is important to note here that 'reasonable selfishness' musf be that


wbich is pemutted by law or custom. In Hussain Sahib v. Subhayya 8 it was
held that 'the owner of immovable property is entitled to do what be pleases
with hislandand can only be restrained bylawor bythe superior rightofsome
other person.' In that case the question of lawto be decided waswhether the
ownerof a plotoflandon a lower level on to which water flows in the ordinary
course of nature from the adjacent land on a higher level is entitled in law to
deal with hia land in such a way II to obstruct the escape of water from the
biper land.The courtgave a negative answer and explained tbus:'wbere two
COQtJauOUl ficlds belongto different proprietors one of which stands upon
biaber ground then the other. nature itself may be said to constitute a
semtude on the inferiortenementbywhich it is obliged to receivewater tbat
fa1J& from tbe superior.If the water which wouldotherwise fall from the high
Found insensibly without hurting the inferior tenement should be collected
mto one bodyby the owner of the superior iii the natural usc of his property
for draining or otherwise improving it.the owner ofthe inferiorwho iswithout
P,OIitive constitution of anysemtude; bound to receive tbat body of water on
his property.' The court emphasized the point that this natural right to drain
offwater Crom an upper land to a lowerone does not include the right to let
offwater accumulated by artifiCial means. Therefore. whenever anyalteration
is made by the owner of land it must be such as not to deprive the owner of
the adj0Wna land of the privilege of using his own as be might bave done
before.
The courts, it appears, have maintained a distinction between water
coming in a normalway and watercoming in abnormally. In case of the former
beingan iQcident to propertya man cannotrelieve himself at the expenseof his
neighbour while in case of the latter which is a common enemy. each owner is
entitledto tab precautionary measures such II building bunds, embankments
etc, reprdl~ of hisneighbour though whenevil basbefallenhim he bas a duty
not to 5hift the evil Crom his land to that of his neipbour. His right is subject
to the obligation of seeing that 00 injury is thereby caused to the property of
another. An OMler of propertybas 00 right to actively let off water which bas
DIluraUy ~ulated tberem OVCQ for the purpose of ita preservation from
. . tho,ofroaa if ~ will have tJac eftce:t of trlDlfmilla his misfortune to
tbo property of aaother
2. Storagt ofWQter tmd other hazard cllUSing substances
The COQccpt of the "neighbour" principle has no doubt undergone a
gradual ~ since the early twentieth century. In fact the Mlldras High
Court in Rilnulnujll Chariiu v. KrishnllSwam; Mudll/i and another'" doubted
tho deciaion lfid down bythe Bombay HighCourt in Mohon/Ill Magan/Ill Shah
v.Bili Jivkore.
In Ramanuja Chariflll. the court held that an owner of land is not liable
for damage caused to other lands by the retention of water on his land in the
natural or usualcourse of enjoying hisproperty. But tbe reteotion of water by
a penon On a portioo of his land to prevent its passing OD to other portioo of
hisland is oot an act done in tbe natural and usualcoarse of enjoyment and the
perIOD 50 doing is liable for damage caused. In that case the defendant
mcrcued the size of an edge of his field. The effect of this WII that water
stagnated in one portion and percolated into the plainti.lrs field JDd made it
162 Water Low in India

unfit for cultivation. The defendant was held liable. If the defendant had
collected the water in a tank or reservoir then probably the act would have
been considered as a natural use of land.
In Murlidhar Kurmi v. Bhanji Kunlli,22 again the 'duty to take care'
towards one's neighbour was emphasized. In that case the plantiff filed a suit
claiming damages on the ground that owing to the defendant not letting out
water of the tank (which was situated on the defendant's land) by opening the
sluices the water went back into his land and submerged his fields causing him
loss. The plea taken by the defendants was that the excess water accumulated
in the tank was due to two years heavy rainfall and as such it was not his duty
to open the sluice and therefore he could not be held liable. The court
maintained that it lay within the defendant's normal physical power (as the
owner of the tank) coupled with the duty to take care to keep the level of
w5ter within the usual height in the tank and that he certainly owed a duty to
his neighbour to open the sluice and let off the surplus water.
In Mis Mukesl: Textile Mills (P) Lid. v. H.R. Subramanya Sastry and
other,23 the defendant was held wholly liable for the damage caused to the
plaintiff's crops by the breach of his tank. Briefly stated, the facts of the case
were that the defendant was the owner of a sugar factory. Adjacent to the sugar
factory, the plaintiff owned large extents of land, which were cultivated by a
water channel, which ran in between the premises of the defendant's sugar
factory and the plaintiff's lands. The defendant stored large quantities of
molasses a bye-product in the manufacture of sugar, in a mud tank, which was
close to the plaintiff's land, separated only by the said water channel.
Admittedly, rodents burrowed into the earthen embankment of the tank
thereby rendering lis waUs weak and as a consequence, one night, there was a
breach of the tank and a large quantity of molasses in the tank overflowed and
emptied themselves into the water channel, and through the wat.v-channel,
inundated and spread over tbe plaintiff's land. The spreading of water fully
laden with the molasses damaged the standing paddy and sugarcane crops
raised by the plaintiff.
In upholding the liabilityof the defendant towards the plaintiff the court
dwell upon the "neighbour" principle in detail. The court held that the
defendant who had stored large quantities of molasses in • mud-tank had the
duty to take reasonable care in the mailer of mainteoance, in • state of good
repair, of the embankment of the tank. The duty included not simply to act
carefully but not to cause injury carelessly. The \'Cry fact that rodents had
burrowed holes into the earthen embankment rending its walls weak was
enough to prove that both from the forcsccability test and of initial causation
it was clear that the defendant was'liable. The defendant could reasooably
have foreseen that damage was likely to be caused if there was a breach of the
tank. There was clearly a duty situation and the defendant had omitted to do
what a reasonable man, in those cirCWDSlUCC6, would have doae or would DOC
have done. The damage that was likely to occur to the neighbouring land by •
breach of the lank in whichwere stored 8,000 toooes of molasses wasreasonably
foreseeable, engendering a duty-situation. Moreover, there was DO defence
forthcoming that the tank had been inspected periodically and aU reuooablc
steps taken to keep it in a slate of • good repair.
TOItiow Liabilityin Waler LAw 163

Running parallelto the 'dutyto takecare' principle wasyetanother very


important principle established by the Karnataka High Court in MukesIJ
Textiks Mills. The Court heldthat bystoringor large quantitiesofa liquidclose
to respondent's boundary the defendant chose to assume a relationship with
an outsider and the law requires of him to conduct himself as a reasonable
man with adequate skill, knowledge and resources would have conducted
himself. In ths..words of Lord Reid assaid in the case of British Railway Board
v.Herrington, if a person choosesto assume a relationship with members of
the public, say by setting out to drive a car or to erect a building fronting a
highway, the law requires him to conduct himself as a reasonable man with
adequateski11, knowledge and resourceswoulddo. He will not be heard to say
that in fact he could not attain that standard. If he cannot attain that standard
heought not to assume the responsibility which that relationshipinvolves... •
3. Custonul1y rights:
Customary rights which are in the nature of easement rights are
protected by the Indian EasementsAct, l882. Any wrong committed to such
rights would be violating the easementary provisions included in the Act and
as such actionable. There are however other customaryrightsoutside the ACt
that are protected at common law.These rights include the right to drain off
water in a certain manner, the right to store water for irrigation, the right to
usc water from a certain water-sourff and the like. In Shoh Yad Ali and others
II.Shyam Pralap Dubey and others it was held that where a defendant is
entitled by ancient custom to accumulate water in reservoirs fOl" purpose of
cultivation and water escapesandsubmerges the plaintiffs fieldsowing to the
depositof silt in the bed of the reservoirs and not due to any non-natural a.et of
the defendant, the defendant is not liableto the plaintiff for the damage to his
land and crops. In this case the courf went to the extent of holding that even
it the defendants had been storing water in a reservoiron the plaintiffs land it
was a right thathad the sanctionofcustomand as such anyviolation to it would
constitute a tort.
The customaryrights ofagriculturistshave bee~ given ~pecial treat.ment
as against rights of non-agriculturists. While nQn-agr!cultunsts ~ dram off
water from their lands into the neighbours'lands only an that 9uanhty th~t was
in fact being drained, agriculturists have been held to be enlltl~d t~ dram off
even surplus rain water into the neighbouring lo~r 1an~ Besides If he ~as a
customary right to discharge water coming mto h~ land for ordlD~ry
agricultural operations the same sha1I ~ prote<:ted. In the words of
Madhavan Nair J OJ as stated in Pillai's case.
•....it appears to us that in India, the right of an agri<:Wt~
to drain off into the lower lands the water brought 1010 his
land for ordinary agriculturaloperations is a c~o~ary ~ight.
He is entitled to do so by custom, otherwise, It Will be
im~ble to carry on agricultural operations."
In Madras Rililway Com/H!J'Y v. Ziuni1UUv of CQ1'll~te,!ag~28 also,
the court held that storing water an tanks and reservo.U's for 1!I'JgahoD p~os~s
is a customary practice in India and unless negligence IS proved 10 their
maintenance the defendants cannot be held responsible for damage caused
by the escape or overflow of water frClm such tanks or reserwirs. The Madras
164 Water Law ill India

High Court held a similar view in Shanmugavel Goundan & others v.


Venkauuwami AnanD that unless negligence is proved the defendant is not
liable for water escaping from tanks and damaging the plantiffs property. The
storing of water for agricultural purposes is considered a natural and useful
user of land and the court categorically stated that the law on such matters is
determined by custom and customary rights.
It has beeiheld by the Orissa High Court in Pattam Satyabad! Patra v,
Kasinath Bissoyi that unless the defendant proves a customary right or an
easement of necessity to drain off water from higher land by artificial means
on to the neighbour's land which is situated at a lower level the act of draining
off water amounts to a tort of negligence which will hold the defendant liable
for any damage so incurred by the plaintiff. In this case the owner of the
higher of the two adjacent lands, through which ran a drainage channel,
diverted the water logged up in his field and interfered with the normal flow
of water from his land by instalJinga pipe for extracting the water. The artificial
pipe was so arranged that the water thrown out by it inundated the neighbour's
land situated at a lower level and damaged the crop therein, The court held
that the diversion of water artificially in the absence of a customary right or
easement of necessity amounted to an abnormal use and thereof the defendant
was liable in tort. Similarly where a plaintiffs claim for damages against the
owner of the adjacent land is not based on breach of any contractual duty or
prescriptive or customary right but is based on a natural right to now wat5r
over the adjacent land an action for damage under tort is not maintainable, 1
In PakJcJe v. P.Aiyasam;32 thevillagers' immemorial right to use water
from a particular tank was protected by the court and the laying of salt-pans
inside the tank by the defendants was regarded as an interference of the
vllIagers' customary right to drinking water. Though the easementary rights
contained in sections 7,15and 18 of the Easements Act 1882 are subject to the
soverign powers of the Governtnent to regulate and control water by virtue of
section 2 of the Act, the common law protects the rights of ryotwaris and
villagers to continue receiving such water supply as is sufficient for its
accustomed req~iremeDts. ID SanlcIuavadivelu Pillai v. Secretary of Statelor
India in Councit» the government was held liable for suddenly stopping
water supply from a particular channel to the ryotwaris to which they were
accustomed for the past 60 years. Where the raiyats have acquired a right to
suppl)l of water for irrigation the law requires that the customary supply (which
includes manner of supply also) to the raiyat is not diminished. A raiyat has so
much claim against the government that even during season or months of
shortage when the water is beingeconomised by the government the customary
supply to the raiyat cannot be reduced even if such economy is undert~en to
make supply of water for other purposes of greater importance. The
obligatioD of the government exteDds Dot only to abstaining from interfering
with ~ Dece~ supply but also towards rIDding the required supply of
Waler.
The courts have also ~ to protect the prescriptive rights of the
ryotwari hoIderu.g.. in maiDtaiDmg bunds.ln RamLalsingh andothers v.Lill
1»uIry MuhIon, it was held thatwhere a defendant shows a prescriptive right
to maintain a buDd, and takes aD reasonable care for its safety he cannot be
made liable by the escape or overOow of water on to the lands of others and
TOItiow Lillbilily in Water lAw 165

coosequent injuryof the crops thereon, but the acquisitionof a prescriptive


right to maintain a dam does not obtain immunity in resPffl of all other
obstructions naturallyarisingowing to the existence of It dam.
The prac:ticc of the Indian Courts in giving special treatment to the
agriculturists and ~ villagers is a reflectionof the policyfollowed by the
BugUsh in India. Throughout the British India period cxpcricnce had taught
the EDgIisb to avoidas far as possible interferingwiththe customsand practice
followed by Indian&. As such customary and prescriptive rights relating to
agricultural operations were specially protected by the British. By adopting
such an attitude probably the English wanted to win over the farmers and
zamindars on their side. There was another reason for the English for
respecting the customary rights of the agriculturists. The law in England
governing agriculturaloperations was essentially based on customs prevailing
inEngland. Therefore, inIndiancasesinvolving customaryrightsand practices
the Indiancourts preferred to applyIndiancommonlawprinciples.Moreover,
even if the courts wanted to look for. analogies in English common law they
could not have found anyfor the system of irrigation(especiallytank) and the
rights of raiyats to water for irrigation in this ~untry has no counterpart in
England and no place in English Common law.
This policy followed by the British in India was given shape by
legislations likethe Indian EasementsAct, 1882 and the Land AcquisitionAct,
1894 which contain special provisions protecting the easementary and
prescriptive rights of the agriculturists and the ryotwaris. However, the
EasementsAct has a majorlacuna.What exactly is meant by a customaryright
isnowheredefinedin the Actwhich tends to create a lot ofconfusionas regards
the role of the judiciaryin interpretingthe term. India being a multi-religious
country has a multitude of customary rights and practices and the Indian
EasementsAct does not include all of them. As such customary rights which
are not codifiedbythe Act are governedbycommonlawprinciples.It is in such
casesthat the judiciaryfindsit difficult to interpret the term for the Legislature
does not lay down whena particular practice wouldbecome a customaryright.
Todaythewholeagricultural industryhas undergonea great changeand
so must havethe customs and practicesof the people. An amendment of such
old Acts like the Indian Easements Act is therefore urgently required.
According to judicial interpretation the minimum life prescribed for an
easement right (which is in the nature of a customaryright) under the Act is at
least 20yearsand goingbythismeasureeverycustomary right outside this Act
mustliavesurvived atleast this span oflifebefore itcan be protected at common
law.Such ajudicialinterpretationcreates the possibility of acknowledging new
customaryrightswhich havetaken birth onlyin independent India. Willnot an
infringement of these newrightsconstitutea liability in tort? The lawof tort as
regards customaryrightsis veryuncettain and this uncertaintycan onlybe laid
a1 rest whenall kindsof customary rightsare codifiedand enough room is left
for the emergnceof new.
B. mE CONCEPT OF NON.NAnJRAL USEOF LAND IN mE
DOCfRINE OF STRICf LIABILl1Y
There are manyresourceswhich whenput into operation mayconstitute
a constant danger to person and propertyof others.Suchresources maynot be
166 WaterLaw in India

dangerous ia tJaemselves but maylead to devestating results. Water is one of


such resources.Its utility is unchallengeable yetwhen it is collected in quantity
in the wrong place or allowed to percolate it can create havoc.
The law maydeal withsuch hazard-causing or hazardous activities in
three ways. It mayprohibit them altogether.It mayallowthem to be carried on
for the sake of their social utility but only in accordance with statutory
provisions laying down safety measures and providing for sanctions for
non-compliance. It mayallowthem to be tolerated on conditionthat they must
pay their wayregardlessof any fault.Thelast constitutes the doctine of strict
liablity. The undertakers of the activities have to compensate for the damage
caused irrespectiveof anycarelessness on their part. The basisof liability is the
foreseable risk inherent in the very nature of the activities. It is based on the
maxim, sic tuo alienum non laedas meaning"so use your own property as not
to injure the property of your neighbour". The tort governed by this rule is
neither trespass,wherethe harmisconsequental,nor negligence because there
is no duty to see the foreseeable harm nor nuisancebecause nuisance implies
unlawful interference witha person's use or enjoyment of his land. T~ area
of tort lies in the area betweenhinterlandsof nuisanceand negligence.
Historical background ofthe doctrine ofstrictliabilty
Strict liability has its originin the case of Rylands v. Fletcher40 wherein
it was established that if a person brings on his land and collects and keeps
there anythinglikely to do harm if it escapes and if it does escape is liable for
all the natural consequenceof hisact.The factsof the case are :the defendants
as ownersofa mill, constructed,byarrangementwiththe ownerof certain land,
a reservoir in the locality. At some former time but unknown to anyone the
land under the reservoir had worked for coal and the old working
communicated with those under the plaintiff's lands. The persons employed
for the work of constructingthe reservoirfound disused mine shafts, but did
not fill them up properly. Soonafter water was filled in the reservoir and one
of the shafts burst and water escaped through the undergound working into
the plaintiff'sminesand flooded them.The House of Lords approved the rule
of absolute liability restingthe liability on the ground that the defendant's user
of this land was non-natural.
In the wordsof Blackburn J., ~ rule of lawis that the person who,for
hisown purpose,bringson hisland and coUects and keeps there anythinglikely
to do mischief if it escapes, must keep it in at his peril, and if he does not do so
is prima facie ~werable for all the damagewhichis the natural consequence
of its escape..4 Such a person can however excusehimselfby showing that the
escape wasowing to the plaintiff's fault,or that the escape was a consequence
of the act of God or vis major.
Thus the rule that finally emerged from Rylands v. Fletcher was that, if
the defendant makes natural use of his land he is not liable in absence of
negligence but if he makes 'non natural use' of land in his occupation in the
course of which there is escape of somethingwhichcauses damage to person
or property outside the defendant's premises, the defendant is liable
irrespective of any question of negligence on the basis of the rule of strict
liability.
Tonious Liabilily in Water Law 167

The principle of Rylands v Fletcher has been followed in several Indian


water cases, but compared to English law such instances are few42• What is a
'non-natural user of land has not defined by the Court anywhere which has
resulted in creating ambiguities in the application of the principle as seen
below.
1. Constructions A/terations affectingflow of water.
Where a person constructs a dam on his land which has the effect of
diverting water from its natural channel on to the land of a neighbour and
damageto the neighbour's property results. he is liable at law to the neighbour
According to the principle land down in Rylands v Fletcher erection of the
dam is not a natur.r, use of land
4
aw' is an actionable wrong if it results in an
injuryto another. In Ram Bhikil the defendant had built a miniature dam
on his land to change the course of rain water which instead of flowing to the
nala through the defendant's fields flowed towards the plaintiff's fields
damaging the crops therein. The court after reviewing the evidence placed
befor it came to the finding that the right of a person to dam up water or provide
a particular channel for the flow of accumulated water is not an absolute right
but subject to the obligation that no injury was caused to the property of
another. Digging of a trench was considered a non-natural user of land. But in
Monanla! the digging of a trench in a land, was considered a natural use of
land. The court in this case held that where a person digs a trench on his own
land in which water collects during rains and percolates underground causing
damage to the foundations of the neighbour's house no damages accur~ to the
plaintiff because the defendant has a right to do anything on his land. 4
The above law was not JPproved in later cases and rightly so. In
Kanhaaya Lal La/lu v. Faz Haq the Oudh court stated that when a person
allows rain waler to collect in the materials and debris of his house without
preventing its escape into the neighbour's house and causes damage then he is
pnmiafucie answerable to all the damage which is the natural consequence of
the escape of water even if negligence is not proved. In that case the plaintiff
had requested the defendant to remove the water collected in the debris but
no positive action was taken by the defendant. In such circumstances the
principle laid down Rylands v. Fletcher is attracted and the defendant must be
made liable for the damage. In Monanlal's case the defendant was not held
liable for the escape of water into the foundation of the neighbour's house
because a distniction was drawn between a natural and non-natural user of
property as established in Rylands v. Fletcher. When can the digging of a trench
in land be a natural use of land aand when not? Rylands v. Fletcher does not
lay down a tort for distinguishing bctw.ffo a natural and non-natural uvcr. To
quote Young J. in Sarju Prasad's case:
"It has never yet been defined in any case of which I have knowledge
what is a natural and what is oot a natural user of land. Is it a natural use to
build a house upon it? In one sense it uodoubtedly would be. But equally there
could be no more natural use of land then putting cattle to graze upon it, yet it
has been held that if cattle so placed upon land stray, and so damage the
neighbouring property, the owner of the land is responsible. In my opinion,
from a consideration of the authorities, a natural user of land is its natural
condition with the exception perhaps of those cases which deal with mining
operation, in which different considerations apply."
168 Water Law In India

Mudholkar, J., agreed with, what Young J. said in Sarju Ptwad~ case
in which the decision taken in Mohonl4l's case was rejected. Thus, if a person
by artificial means allows things in themselves inoffensive to pass into a
neighbour's property and cause damage he would be held liable for the loss
incurred. The digging of a treneh is an artificial act. So?erection on a land.
In both cases the legal maxim sicutere tuo would apply.
It can be seen from above that even a natural user of land does not entitle
a person to interfere with the rights of natural user of land bY others to an
unreasonable extent.49 In Rmnsewak Kazi v. RamgirChoutlhry"" the defendant
by constructing a bundh across the river "Sheoraba" obstructed the water which
was used for irrigating other villages. The Patna High Court held that "having
regard to the custom and necessities ofa tropical agricultural country like India
the courts must be liberal in recognising irrigational rights as natural rights of
as strong a character as any other provided the lower riparian owners are not
injured to an unreasonable extent and the equality and the wide participation
of ben~pts of the natural stream are not interfered with to an unreasonable
extent.
2. Tank water
Ordinary water installation in a house or flat has been held t~ be a
natural user of land. In Bomanjee v. Mallomedali Haji Ismail & Co; Z the
plaintiff brought an action in tort against two defendants who were minors on
the ground that water stored in tank on the top floor had leaked into the ground
floor where the plaintifrs goodswerestored causing immense damage. In the
instant case the court ruled that the water in the tank situated on the top floor
was to be used for a natural purpose-as the building was a place of habitation
and that each occupier of the house takes the premises with all its vices.
Therefore in such a case the doctrine laid down in Rylands v. Fletcher would
not be applicable. The court also did not bold the two minors responsible for
the collection of water in the tank as they were ignorant of it because of the fact
that their case was being represented by their mother and guardian, though a
minor could be held liable in tort if proved to have committed a wrong.
In a situation where water flows from a tank not belonging to either the
plaintiff or the defendant from the fields of the defendant into the plaintiff's
crops there is no question of the applicability of the doctrine of strict liability
for none Jj making a non natural user of his land. In Kenaram Akhuli v.
Sristidhar' the defendant lowered the level of his land in order to make it
culturable as a consequence of which water flowed from the tank after passing
the land of defendants into the plaintiff's fields. The plaintiff filed a suit for an
injunction restraining the defendant from passing water from their land to the
land of the defendant and also claimed damages. The court opined that the
principle of Rylands v. Fletcher could not be applied to the present case as the
defendant had not used his land in any unjustified or unusual manner for the
purpose of storing water. There was no doubt that the plaintiff had suffered
damages, but he could not be entitled to them in law since no legal right had
been infringed.
If a person has a customary right to accumulate water in a reservoir for
purpose of cultivation then even ifwater accumulated in the reservoir over flows
due to silt in bed and damages the plaintiff's crops, the defendant is not liable
169

to damages as there is DO non-natural act of the defendanLS4 In S1uIh Yad Ali


it washeld that the defendants wereDOt responsible in anydegreefor changing
the status quo IDd that the damage was due to a cause that must have been
foreseen by all parties Le, the deposit of silt. Over here the lowerCourt could
have bighlipted the d':JlY aspect.of ~ defen~ to remove slit from the bed
of the reservoir as' a e:uatomary prae:tice as weD. As this issue was not taken
below the Patna High Court cIecidccI DOt to opine upon it.
From the foregoing di&cussion the general principles of lawregulating
thedutiesand JiabiIities of the owner of landwith regardto the escapeofwater
may be stated thus:
"Where the ownerof land,without wi1fu1ncs& or negligencc, useshisland
in the ordinary, he will DQt be Jiab1e for damages, but where for his own
convenicDcc he diverts or interferes with the course of a stream, or where he
brinp upon his land water which would not naturallyhave come upon it, even
thousb in 10 doing he adS without wilfulness or negligencc. he will be liable
fOl'. all direct IDd proximate dam. . . unless he caD &bow that the escape of
water was causedby an ascot beyoad hiscootrol,or by a storm, wbicll amounts
to vismtljO' 01' an act PI God, in the 1C0Ie that it is practically, if not physically,
imnnut~ to resist ;r» k is apparent that the application of the principleof
~1iabiiity in Indian cases relating to water bas been restrictive. Where
waters of a stream were peancd back due to ~ of a bundh on the
defendant's land which inundated the plaintiff's land, where water outlets
of the bub were dosed as a result of ~ch there was overflow and
COIIICqUCDl damageto a'Opi of the plaintiff, where water was retained by.sl
penon 011 hisland IDd was DOt allowed to pass 00 to other portion of hisland
the def~ wereheld IiabIc fOl' damages causedowing to non-naturaluse
of land.
On the other hand where a bundh had been Ia~y constructed and
the breach was owing to DO fault' of the 'defendant, where a well or
embankment had been erected to p'rotect the land from the influxof water
from adi~ landregardlessof the water being thrown back on the land of
another the defendant was not held liable.
It is submittedthat the principleofnon-natural user of land is beset with
ambiguities. The lackof conccptualisation ofwhatis a natural and a non-natural
user of land by either English or Indian judicial decisions has made the
applicationof the rule in Rylands v. Fletcher verydifficult. The exceptionsto
the rule land down in Rylonds v. Fletcher have further circumscribed the
operation of the rule. Moreoverthe concept of what is a non-natural user of
land is relative and changing everyday. Keepingthe limitationsof the rule in
R.YImHLs v.Fletcher in mindBhagwati J. has rightly observed in M.e Mehta v.
tior: that Indian judicial thinking cannot be allowed to be constructed by
reference to law as it prevails in Eogland and that the liability arising in this
case cannot be subject to any of the exceptions which operate vis-a-vis the
tortious principle of strict liAbility under the rule in Rylands v. Fletcher.
Similarly, in the Bhopal case the Union Carbide had a duty to design and
operate the plaDl in such a manner as to prevent the escape of lethal methly
isocyanate (MIC)fromthe plaDl and protect personsfromits dangerouseffects
as also to W811l them of the dangers and risk associatedwith the plant and its
110 Water Law in India

manufacturingprocess.64 TheUnionCarbidemust be heldabsolutely liablefor


all the damages incurredindependent of the rule in Rylands v. Fletcher.
For an application of the principle of strict liability fulfilment of two
conditiollS is neCessary; one there must be on escape of water and second a
personmusthave voluntarily brought the wateron hisland. This meansthat a
person who leaves his land in its natural condition and allows water to
accumulate thereon,which by escaping causesinjury to his neighbour, is not
liablefor suchescape.Further if a personis hurt on the land bywater which
is broughtor collected thereon by the owner of the land then the latter does
not comeunder the rulebecausethewater has not escapedfrom his land onto
another's land. Such a narrow interpretation of the rule has considerably
diluted the efficacy of the operationof the principal of strict liability. At the
sametime it isimportantto note that it maynot be possible to extendin totality
the rule ofabsoluteliability that hasemerged in Bhopaland M.e Mehta's cases
to all water related disputes especially those arising between poor farmers
because taking intoconsideration theerracticclimatic coadinoes ofthecountry
the courtsmayfind it difficult to completely ignoresuchdefences as the act of
God or vis 1TUIj~, contributory negligeDce, necessity and self defence put up
by the defendant. The economic capacity of the defendant to pay for the
~es causedto the p~ mustalso be dulyconsideredby the court. But
whet; the defendant is a rich farmer or a government body or a society a
standard of liability regardless of the eseeptioas underlying Rylands v. Fletchu
must beeYOlved by the courtssolely on the basis of the factwhetherwater was
brought voluntarily on land 01' accumulated naturally thereon or whether it
caused injury to the plaintiff by escape or not.
C. NUISANCE
The civil WI'OD8 known as nuisance is iJicapable of precise definition.
-rberc is perhaps DO more impenetrable jungle in the en!1\e law" wrote Dean
. Prosser, then that wbicb surrounds the word nuisance. Nuisance can be
desaibed u unlawfu1 interfercacewithmother's use and enjoyment of lands
or of some right over or in COIUICdion withland.A nuisance maybe caused by
negligence. and there may be cases in which the same act or omission will
support a certain of either kind, but generally speaking, these two classesof
actionsare distiact;and the evidcoc:e necessary to support them is different.
Nuisance is of two kinds: <a> privateDuisance; and (b) publicnuisance.
Privat~ nuisance is the using or authorising the useof one's propertyor
of anythias under one's control, 10 as to injuriouslyaffectan owneror occupier
of property by physi~ injurm, his P.J'operty !Jf byinterfering materially with
his leisure comfort or convenience. Private nuisance attecting water rights
includes ada leading to wroogful distprbance of easements e.g. disturbance of
riabt to ~ water from • ~ water cbaanel or tank, wrongful escape
ofwater iDIo anothu's property. etc.
Public nuiaaDce is first·and foremost. crime because "it is a nuisance
whichis10 widespread in itarange or 10 indiscriminate in itsetfect that it would..
DOt be ~ to expect • person to take proceeding$ on his own
rcaponsibiJity to put • stop tg.jt. but that it shouldbetakenon the respoDSlbility
of the comm~ at large. Public nuisance is a aime which can be tried
summarily01' 011 . . iDdictmcDt wbicb canlead to civil liabilitytowardsanyone
TOftious LiobiJiJy in Water Law 171

suffering special damage, while private nuisance is a tort. In order that an


individual mayhaveprivate right of action in respect of a public nuisance:
(1) m
he mustshowa particular juryto himselCbeyond that whichis suffered
by the rest of the public. He must show that he has suffered ~
damage more than what the general body of the public had to suffer:
(2) Suchinjurymustbe direct,and not a mere co~uential injury; as where
one wayis obstructed,but another is left open.
(3) Injurymust be of a substantialnature.
A piantift' in nuisance action has a choice between two remedies;
injunction and remedies. It isveryusualfor a plaintiffto seek an injunctive relief
to stop the defendant fromcontinuing his activity. The defendant, on the other
hand,wouldbe morethan wi1Iing to paydamagesrather thangiveup his activity.
The granting of injunctions being a disaetionary remedy is usually more
suitable for balancing·conflictiDg interests. This act of balancing conflicting
interests,however has given rise to innumerabledifficulties and uncertainties
in practices, which is particularly' apparent in water cases dealing with
Pollution. In private nuisance damages are awarded when there is material
damageto property and an injunction is issuedwbenthere is interference with
the right to the use or enjoymebt of land and in somecasesboth ara,awarded.
Public nuisance, on tbe other hand, affords protection to persons ()the, then
tbose with an interest in land. In public nuisance damages for personal injury
as well as economic loss can be recovered, while in private nuisance it is
primari1y damage to land and goods which is compensated.
Injwy to Property
1. Private IICIion fiN II public nuUlIIIU:
Whether an individual would prefer seeking an injunctive relief or
pecuniary relief or both in case of a public nuisancedepends on the facts and
circumstances of eafp case. In Syed MUZIIjfflT Hussain v. AdministrtJIor of the
lAhort M,unicipaJily there was :til old storm water channel in the area known
as Gowalmandi which was constructed before that area become thickly
populated. With the increase in populationthe need for Sanitation grew more
acute and the municipality had adopted the simple expedient of discharging
sullagewater into the old storm water channel.The plaintiffclaimed that this
led to twodistinct nuisances from which he in particular was a sufferer. F'JI'St
nuisance was that duriDg the rainy season the water ovrOowcd into his bouse
with unplcasaot results and the second nuisance was aeated when the water
in the dwmcl bec:ame stagnant and ~ve off a stench ~ offensive that his
house became practicaJly uninhabitable. The plaintia sought an injunctionto
restrain the municipality from discluirging suUagc water into this channe~ or
iia the altcruativc, to compel it either to c:oDvert the mnnel into asuitable drain
or to haveproper draiDafclaid downeverywhere. It was held that the plaintiff
wasCDlitJed to an iDjUllCliOD siDcc dam. . . aloue would Dot ba\'C siven him the
desired re1ief. The courtheldthat an injunction couldnot be siven to interfere
with the workiDg of govenament departments and that thecommittee could not
be compelled to make satisfactory drainage arransements thousb it could be
restrained &om makina arr~ which would be acsJ.iIcat or CIaatJcrous
to bca1th or C\'CIlinterfere with the ordinarycomfort of an iadividuaL F'uWIy,
172 Water Law in Indio

coosideriDg that the Administrator of the Lahore Municipality had pleaded


separately,an injunction was issued to him to restrainfrom discharging sullagC
water into the storm water channel
The court did not explain, why an injunction could not be issued to
interfere with the working of goveromcnt department and whythe government
could not be compelled to make satisfactory arrangements. With an increase
in the needs of the societythe lawshouldalsodevelopaccordingly and impose
a moral duty (which would take the shape of a legal duty) on the state (in this
case the committee)to meet the essential needs of its people. It is possiblein
certain cases that the comfort of the privateindividual to some extent suffers
inpubIU: iDtcrest ifthis cannot be avoided. Buta privateindividual shouldsuffer
only when no other arrangement can possibly be made and in the case
mentioDed above it was not shown that no other arrangement for drainage
could possibly be made. In fact it wu stated that more satisfactory
arrugemcnta for draiDage werealreadyunder contemplation.
Proof ofsp«iIIl dlInuIge-whetheT 1I«USIIIY1
In KhunhidHussoin and othm v. SeadlRyofSt«eTl it was held that for
a private individual to cstablisb a cause of ilctioli with regard to a public
nuisance, special damage must be proved but it may not be essential in all
circumstances The court ob&erved t&at 'special damage' in cases of nuisance
ii that damasc which an individual has suffered over and above the
~oce met withbyothu members of the public. And in an action for
damages in such a case the mere fact that pel'SODS di<t not give any details of
the damagc which they suffered in no way~ fromthe right to succeed in
the actioa if theirsucceas or failuredepeaded upoIl that point." Brietlystatios .
the facts of that case are as follows: A bundh was created by the government
parallel to the railwayline on the Futwah Road, south of Patna, to prevent
the Patna city and its hazar from being inundated by water by reason of the
overflow of the Poonpoon river. In times of flood the construction of thc
bundh prcvented the water from drainingawayto the north and the distruct in
which the plaintiffs house was situated was thereby flooded. The plaintiff
sought a mandatory injunction against the secretary of statc to remove the
bundh. He also claimed damages for thc loss suffered. The court held that to
establish a cause of action against the defendant it was essential for the
plaintiffs to prove that they had a prescriptive right to drain off flood water
towards the north and that the erection of the bundh by the defendants had
interfered wi~ their right It was further observed that the plaintiffs had DO
absolutc right to have their land kcpt free from flood watcr by draining it to
the northand flooding these lands.~eirright, if any,was subject to drain watcr
through certain defined channels" The fact that the plaintiffscould not show
that they had a prescriptive right to drain flood water off in defined channels
the court negated the~ claims f9r inj\lllction lpld special damages. A person
cannot claim a right to foul an ordinary drain by discharging into it what it was
not intended and then throw on other persons an o~jigation to alter the drain
ill order to remedy the nuisance that be has caused.
2. Action 101' Private Nuisance :
In Manumol Sluundas SahsanomaJ7S it was held that where a person
comes to court complaining of a private nuisance injuriously affecting his
173

property aDd iDtcrfcriDg matcria1ly with his health there is a genuiac cause of
adioa whic:b in law is based OIl the maxim lie UINe IUD ut tIlienum 110ft laedD.r
In the iDstant case, the defendaat dug a wdl in his courtyard for the purpose
of obtainias water from an artcsan well by means of a boriDg pipe. After
inscrtiag the pipe, he left the well un.61Icd whichwas continuallybeing filled
in with water from the boring pipe. The welland the boring pipe were in close
prOJdmity with the wall of the plaintifPs house which began to be affected
injuriously. The plaintiff filed a suit for a mandatory injunctiondirecting the
defendant to close up the wdl and also claimeddamava. The court held that
there was defiDitcly a want of care on the part of the ~endant who was
responsible for the damage incurred by the plaintiff. Accordingly a
maDdatory injunctionwasgranted to the plaintiff.

ProofofspedQI dllmage-wheJher ,,"essary?


As in public: nuisanceso also in private nuisance it maynot be essential
to prove s~ damagesto succeedin a suit for damages. InMaung Thit Sa v.
MaungNat the court held that W wherea person is in the enjoymentof a right
and another deliberatelyinfriDges that right, the person injured can succeed in
an actionfor damageswithoutprovingspecia1 damage,Le, whether anydamage
has been proved to have accrued to him or not. In that case the parties were
lessees of adjoiningfISheries, the fishery of the plaintiff-appellatebeing the
lower one. For twenty two days of the season the defendant-respondent
continued puttingillegalobstructions to the passage of the fishwhichlessened
the plaintiffs catch of fISh. The plaintiff sued the defendant for damages. It
was alleged that the plaintiff must prove special damage. The court overruled
the allegation on the ground that proving special damage was an impossible
task in a situation like the present one. Strange enough, though the action of
'the defendants in the prese"" case wasconsidered a tort the word 'nuisance'
as such was not mentioned. ReOecting upon the cases mentioned above it
can be seen that the tort of· nuisance in water cases has been grossly
underplayedbythe judiciary. This iswhythere is almosta famineofcasesfalling
under this categoryof tort today.There havebeen severalold cases where an
interference in the enjoyment of a right in land or otherwise has been held to
be a tort but there has been no mentionwhether the particular tortious act was
a nuisance or somethingelse.. This positiontaken by the judiciary has almost
spelt the demise of the tort of nuisancein water cases. Perhaps the judiciary
as a matter of policydid not wishto define everyisolated interference in the
I right of enjoyment of property as an act of~uisance, and preferred to deal with
it under other forms of tortious liability. Or perps, being guided by the
principle that not every 'fleeting or evanescent interference will be an
actionable nuisance except one which is substantial and unreasonable, the
courts have been slowto acknowledge forcefully this area of tort. Thus, when
water Oowed over the p~s land but onlycaused 'trivial injury' the claim
in nuisance was rejected. Such an approach maynot be practical today. For
example, dismissing a case as not falling under the tort of nuisance on the
ground that it is an isolatedinterference unlikely to be repealed in future may
not be very wise because each isolated act may suggest that such an
interference may not remain an isolated event in future.
174 Water Law in ll11lia

Further, in all water cases falling under the tort of nuisance there has
been no consideration of the strictness of the duty principle. The courts have
only been concerned with the question whether the defendant should be
stopped from interfering with the plaintiffs right or not. The tort of nuisance
in water law is in a very uncertain stage. It may comprise a wide variety of
situations or just a few specific ones. It may contain an element of fault,
negligence, strict liability, or none of these. It all depends on the judiciary as to
how it interprets a particular situation. As a suggestion the right direction
would be to make the tort of nuisan~ related to water cases more specific so
that it would be easier for the legjs1ature when enacting a law of nuisance to
put specificforms of nuisances under specificlaws.
D. LlABlLl1YFORPOlLUTlONOFWATER
The term 'pollution' has been differently described in different Acts.
Some describe it as 'nuisance' while others as 'neglect to carry away rubbish'
or 'causing water to be corrupted'. Some statutes define pollution as
'poisiooing' of water.
In tort lawthe act of pollutingwater is termed as a nuisance. Nuisance
is no doubt an old tort but water pollution though an old concern has only
recently been looked upon as a real problem. Therefore, a determination of
the efficacyof the action in nuisance in achieving pollution becomes relevant
for the purpose of the present study.
ConJrolling Water Pollution through public iUUJ private nuisance
The requirement of provingspecial damage under tort adverselyaffects
the possibility'of controllingwater pollution through public rather than private
nuisance. In some cases the requirement of 'special damage' could be
dispensed with if a private citizen obtains the permission of the
Atttorney-General to)end his name to the suit. This generates another
problem: would a pri~te citizen,who has not suffered 'special damage' bear
the risk and cost of riiodern li~tioi1 for the benefit of the general public?
Obviously not. Then who would be willing to do so? Social activist groups,
environmentalists, voluntary organisations? Here again there may be
difficulties: rust, because there maybe statutory nuisancesoffering a speedier
method of solving these problems and secondly, because many modem
activities whichare great polluters are increasingly sanctioned by private acts
of Parliament which tend to confer immunity for non-negligent interference.
For the aforementioned reasons the action for public nuisance does not seem
to have played a dominate role in preventing or controlling water pollution.
Suits brought under private nuisance are, however, not subject to such
constraints as it seen in the case below.
In PaJcJcJe v. P.Aiyasanu& it was held by the court that the villagershad
an ancient right to use of water in the suit tank for their drinking and catering
purpose as also for the use of their cattle. In this case the plaintiff brought an
action under nuisancefrom laying salt pans in the bedof the suit tank which to
restrain the dependents made the water in it uselessfor bathing, drinking and
other purposes. The suit tank belonged to the government. The contention of
the appellant that the suit tank being a governmental property was not the
property of the villagers and therefore, there could be no injunctionrestraining
the defendants from converting the bed of the suit tank into salt pans was
TOfIious LiIIbiJity in Water LiIw 175

aeptm:d by the court, The poIluter-defendants also alleged that it was the
guveromcat aJooc that could preve.nt them from doiDg anything on their
~. BasiDg its decision on theevidenceadmittedthe court concluded that
this action of the polluter-defendants amounted to a nuisance and the
plaintiff-villagers were entitled to an injunctionprayed for. It also stated that
because the plaintiff-villagers had a commonright over watcr in the tank, any
interference with that right gave them a cause of action cven though the
interference was not in respect of the land belongingto the plaintiff.
1. Ri;u.r ofRiparian tmd non-Riparion ownen ofland:
At commonlaw,every riparUIl owner is entitled to the continued flow
of watcr of a natural stream inits natural condition, without any obstruction
or pollution and undimimisbed in qUlmtity and quality. Every land owner has
a natural right to water of natural SlIJface streams which pass his lands in
defined channels, ~ to transmit the water to the land of other persons in its
accustomed course. This right belongs to the proprietor of the adjoining
lands as a natural incident to the right to the soil itself. Riparian owners are
entitled to use and consume water r1 the stream for drinkingand housebold
purposes,for wateringtheir cattle,for irrigating their land,and for th~ purpose
of manufacturcsubjectto coaditionsthat:
a) the use is reasonable; the standard of reasonableness applies to the
purpose for which he can utilise as also to the mode 0Lmethod that he
mayadopt for impendingand channellingsuch water.
b) It docs not destroy or render useless or materially diminish, or affect
the applicationof the water by riparian ownersbelowthel!Ieam in the
exercise of natural right or their right of easement if any.
The pollution of a natural stream is a wrongactionable at the instance
of any riparian owner past whose land the water so polluted flows.
A riparianownercan claim two remediesagainstthe polluter. Fir9,\lY he
can claim damages against him and secondly, he can me a suit for inj~Ct.ion
restraining him frompollutingthe stream. Though it is necessaryto prcfve that
there was~llution of the stream it is not essentialfor a riparian to prove actual
damages. The pollution must be material or appre~~le or cause sensible
inconvenience and shouldnot be temporary or triffing.
The commonlawdoctrine of riparian rights has been codified in India
by the Indian Easements Act, 1882. Illustrations (t) and (h) of section 7 of the
Act dealwith pollutionof waters. Illustration (t) stales that "Theright of every
owner of land, within its own limits, the water which naturally passes or
percolates by, over or through his land shall not before so passing or
percolati.ag, be WU'easonably polluted. by other persons.' The rule underlying
this illustration is wider in scope than thc common law doctrine of riparian
rights. Thc commonlawrights. riparians are confined to natural stream (that
is, water which flows in a defmite course), water-courses having thc
characteristicsof a natural stream includinga tidal river and an underground
stream flowing in a defined cbanne~ whereas, the extent of riparian rights
containedin illustration (f) coversnot onlythe abovebut also percolatingw.er
and water flowing in UDdefiDed chanoel and stagnant water (like that of sea,
ponds or lakes).There is, however, a basic: flawin illustration (f), whichis that
176 W,*, lAw in India

besides otbcc thiog$ it speaks of "unreasonable pollution.o8lI This term has


UDOe<:essarily proved as defenc:e for the polluter-defendants and limited the
growth of the tort of oWsanc:e in chc:rcki", pollution. According to Salmond
"there is DO right of reasonable poUutioo. "Pollution" he says," is actionable
without proof of actual damage " an4 therefore a lower riparian owner has a
right to the c:ootiDued Dow Of the stream in its natural qualityand any sensible
alteration of this qualitywhichrenders the waters less fit for any purpose is an
actionablewroag eventhoughthe plaiotifJ has oot in faa been prevented from
making any UlIC of the water whichhe has hitherto made or DOW desires to make
of it" rnustration (h) of the Indian EasementsAct, saysthat everyriparian has
a right to get water of a natural stream and a natural lake or pond into or out
of whicha natural stream Bows withoutanychange in temperature. This gives
a riparian owner the right to seek an injunction to restrain the discharge of
heated water into the stream. .
For ooo-ripariaos and ripariaos of non-natural streams the rules of
Englishlawcontinue to be applicable. The victim is provided a remedy under
the tort of "nuisance." Unlike "negligence" where taking of "reasonable care"
affor~ a defence for the defendant, no such defence is oecessarilyavailable
to a defendant under nuisance. But unlikea riparian owner a noo-riparian is
required to proveactual damage.Thus in a case of poUution though a riparian
owner is entitled to an injunctive relief by the mere fact of pollution, a
noo-riparian owocr mayhave to prove actual damage which more than often
may deter him from seekingreliefin a court. Perhaps this seems to be one of
the major reasonsfor there being hardlyanyreported case law 00 pollutionof
waters affecting oon-riparianowners. Eventhe aiminal provisions with regard
to water poUutioo have rarely been invoked. For example,very few aiminal
complaintshavebeen filedundersectionTn of the Indian Penal Code (I.P.C.)
1860, whichdeals withfouling water of public spring or reservoir.A aiminal
complaintcan also be filedunder sectioo290 of IPC forcommitting a nuisance
and for poUutioo of waters under sections 425 and 426 of IPC whichdeal with
mischief. Since the criminal provisions dealing with pollution of water are
cumbersome as mens rea or &be intention to commit the offence has to be
proved by the complaiDaot it becomes all the more desirable to developtort
lawwhere proof of mens rea is not required.
2. The ineffectiveness of anti-poIIUlion measures.
The Water (Prevention and Control of Pollution) Act, 1974, is a
comprehensive piece of legislation on water pollution. It envisagedthe setting
up of central and state boards whose task, besides others, is to prevent and
control the discharge of water into streams or wells and also to lay down
effiuent standard to be compliedwith by companies. Unfortunately, the act
has hardlyever been used and the companies discharging emueDts into water
have rarely been subjected to prosecution. This is so, because the Boards
constitutedunder the Act are virtually non-functional either because of lack of
fundsor COITUptioo. Moreover, there is a veryseriouslacunainthe Act.Section
58 of the Act ~ the jurisdictioo of civil court in any of the matters falling
under the Ac:l This has greatlystultifiedthe growth of the tort of nuisance
for dealing with pollutioncasesand has also curtailedthe powerof thejudiciary
in'issuing injUDctiOns to preventthe continuanceof nuisance-both prospective
and anticipated. In FTtJIICisco Bamto v. ~n/TQJ Board for Prevention and
Tortious I.illbility ill Water Law 177

Control of Water Pollution9() an injunction was sought by the plaintiff against


the MIs Zauri Agro Chemicals company for polluting sea-water by
discharging untreated effluents into' the sea 'through pipes. These effluents
after seeping into the sub-soil and polluting the water therein subsequently
damaged the property of the plaintiff by destroying his coconut trees. As the
offence committed by the company was of a continuous nature the court could
havegranted a temporary injunction which, surprisingly, it did not because the
plaintiff had already accepted compensation from the company for the
damages sustained by him. Ultimately the suit was dismissed on the ground
that a civil court had no jurisdiction to try it. This decision is very unfavourable
for the development of tort law.Can a statute deny an injured person his rights
at common-law just because it ousts civiljurisdiction? Or is it within the power
of the judiciary to construct the statute in such a manner that ifjustice is denied
to the aggrieved thereunder at least the common law principles of justice and
equity can be invoked to give him an adequate relief? All said and done, it is
purely a mattcr of judicial policy depending upon the facts and circumstances
of a particular case a!'> to how a particular statute is to be interpreted.
The Harihar Polyfibrcs division andgrasilenedivision of the Birla Group
of Companies at Karnataka has been discharging effluents into the
Tungabhadra river for several years which has killed the fish in the water,
destroyed crops and caused immense damage to the health oCthe people. The
Karnataka State Pollution Board has taken no action under antipollution
measures because of its close association with the company. Ultimately, a
petition, which is still pending, has been filed by four villagers and a Dharwar
based organisation "Transational Central " in the Karnataka High Court
against the company.91
However, in Sreenvas DiStilleries v. S.R. Thygovajan, 92 the High Court
went beyond the fold of section 58 of,the water (Control and Prevention) Act,
~974 and laid down that though the said section bars the civil court from
entertaining suits dealing with water pollution the specific purpose of the Act
could not be ignored which was to prevent water pollution and therefore,
interpreted the Act liberally. The court issued an injunction against the
company but with a rider that an injunction could be filed in a civil court
provided no action is take3 by the Water Pollution Board. In Salish Sabharwa/
v. State of Maharashtra9 the petitioners obtained permission from the
concerned authorities to construct an abattoir at Bhiwandi. They also obtained
consent from the Madhya Pradesh Water Pollution Board (MPWPB) to
discharge efflueats from the proposed plant into the nearby river. The
inhabitants of the surrounding vil1agfIa who used the river water for drinking
and bathing purposes objected to-the permission given by the MPWPB.
Interestingly, the river was also used for immersing the Ganesh idols on
Ganpati Immersion Day by the Hindus. A series of representations were made
by the villagers and on their behalfto the concerned authorities and the courts.
Ultimately the permission granted to the petitioner was revoked by the
government because communal riots had broken out in the area on religious
grounds. Unfortunately, in this case, the fact that the disdwged effluents
would pollute the river water and endanger the health of the people and the
cattle was given only a secondary importance as compared to the importance
given to the unrest caused by communal riots on acco~of pollution of water
by the government. In M.e Mehta v. Union of India a large number of
178 Walcr Low in India

tanneries were discharging their trade effluent into the Ganga. They were
called upon to restrain from doing so till effluent treatment plants were set up.
The Municipal Corporation and two Municipal Councils were also made
parties to the petition for failing to carry out their statutory duties. In fact the
municipalities were directed to perform their statutory duties of ensuring that
sewage from the towns is not emptied into the Gange without nest treating it.

Most of the above-mentioned cases have been in the nature of public


interest litigation affecting people at large, which explains the inadequacy of
tort law to cater to the needs of a single individual who has to prove injury over
and above the other members of the community in case of a public nuisance.
For instance, in Francisco Barreto the court lost a very important opportunity
of enlargening the scope of injunction in controlling pollution affecting a single
individual by declining the same on the ground that a civil court has no
jurisdiction under the Act whereas in Sreenivas Distilleries the opposite view
was expressed by the court. The granting of an injunction in Francisco Barreto's
case would have set the stage for the issuance of an injunction for prospective
nuisance under Section 54 of the specific Relief Act, which hitherto courts hal!
been relucJ.fnt about. In Anandrao v, President Municipal Committee, Nagpur
and others the court had maintained that to obtain an injunction "to restrain
the commission of a prospective nuisance it is necessary to show a strong case
of probability that the apprehended mischief will in fact arisc."ln that case the
plaintiff brought a suit for an injunction against the Municipal Committee,
Nagpur, preventing it from granting a fresh sanction to the defendants to buill!
a latrine near the well by which plaintiff took water on the ground that
pollution would be caused to the water of the well by the latrine in question. It
was held by the court that there was no evidence to prove that the latrine was
likely to cause pollution to the water. Logically speaking the purpose of an
injunction to prevent the occurrence of damage is as much as to restore the
original position of the plaintiff after damage is caused to him. In many cases
neither compensation in terms of money nor the issuance of an injunction can
restore the injured to his original position. For example, in tbe Chait ali village
of Ahmednagar district the villagers' health has been damaged after drinking
water from the wells situated therein. The reason is that the water in all those
wells is a murky red and polluted. Well-water in the villages of Rahuri,
Pravdanagar, Tilaknagar, Kilpiwadi, Niphad is also polluted. Industrial
pollution is rampant in Ahmednagar district. The effluent from distilleries in
the areas has made 1,500 acres of land infertile and water in more than 138
wells unfit for consumption. With each litre of alcohol produced almost 15
litrcs of spentwash is generated and if the western Maharashtra Development
Corporation's distillery at Chait ali has a capacity to produce 50,000 liters of
alcohol daily the pollution load created would be equivalent to the sewage
produced in a town populated by million people. The pollution load value of
aJJ distilleries combined in India~ calculated to be twenty times more than
that of aJJ sewered municipalities. Two studies conducted in 1983 show that
water pollution caused by distillery effluent in the country has assumed gigantic
proportion. KS. Gopalakrishnan of liT Delhi has observed in his study that "In
India the production of 600 million Iitres of alcohol per annum results in 8xlO
litres of effluent which directly reach the flowing water systems and sub-soil
water." The study also shows that the method of letting effluent collect in
Tonious Liability in Water Law 179

lagoons is also not an effective treatment because the effluent seeps through
porous soil and contaminates the water sources. According to the second study"
ifthis effluent is let out into the land untamed, it can affect the entire eco-system
and also vitiate the biosphere." Moreover, during the rains, the effluent mixes
with river water and spreads over a wide area. Sure enough the State
government orthe State Water Control Pollution Board has been doing nothing
about the menace, and pollution is continuing unabated, Isn't the government
encouraging cases like M.C.Mehta to be repeated? Also is it possible for a
'lone' individual to succeed in an action under the tort of nuisance for damages
caused to his health, property or secure an injunction to restrain the distilleries
from generating effluent without setting up proper treatment plants? Ccrt airily
he cannot, because the law of tort would require him to prove damages over
and above to that caused to others which means achieving the impossible for
the poor villager. Public interest litigation could be a solution as was the case
in M.C.Mellta's. But then the question arises how long will the judiciary
continue performing the functions of the executive and the legislature? The
hesitancy of the judiciary in not granting injunctions 10 prevent prospective
nuisance can also not be overlooked. II is true that very often the judiciary
restraints from giving injunctive relief on the ground that public activities an:
beneficial - but the question is beneficial for whom, the rich or the poor? In
Maharashtra most of the irrigation projects that have been built cater to the
needs of the farmers fur growing cash crops which demand much more water
than is required for growing paddy which is a staple diet of the poor farmers.
What the court should do is, first, to determine whether a defendant's activity
is in fact a nuisance and if it is, then irrespective of however beneficial it migh;
be the court should not let the polluter defendant 'buy the right to commit it."')
Surely, the law of injunction should be construed by making a cost
benefit analysis of a situation. Of course, it is difficult for the courts to lay down
a rigid formula, on the basis of which an injunction could be granted. In each
case the economic and revenue benefits which would accrue to the government
must be weighed against the sufferings that would be caused to the common
man if his basic rights in water are denied to him. Moreover" in matters of
issuing injunctions the law cannot make fine distinctions and refuse the relief
merely because there is remote possibility that the evil against which an
injunction issought may be avoided. Proceeding upon practical views of human
affairs, the law should guard against risks which are so imminent that no
prudent person would incur them, although they do not amount to absolute
certainty of damage." Only then can a tort like nuisance be effective in
controlling and preventing the pollution of water.
Eo INLAND FISHERIES
Till now this paper has been focussing upon the liability arising in tort
as a consequence of injury caused to a water right when water is used as a
resource. But what happens when there is an infringement of a right vested or
created in a water-based resource? Hydro-electricity is a water-based
resource. So is fishery. Can any ~lition of rights invested in these resources
give rise to a civil cause of action? As far as tort law is concerned there are
veryfew cases falling under Inland fisheries that have given rise to an act!ionin
tort.
180 WaterLaw in India

In Maung Thit Sa v, Mating Nat'J'J the plaintiff and the defendant were
lessees of adjoining fisheries. During the peak season the defendant obstructed
the passage of fish by erecting in his fisheries certain akeses. As a result the
plaintiff's catch of fish was greatly affected. He sued the defendant for
damages. It was held that the defendant W~l\ liable for damages in tort. In
ll J
Paramanda Mohanty and others v, Bira Bellru - the Orissa High Court had to
decide whether proceedings conducted under section 145 of the Criminal
Procedure Code, 1973, can give rise to a tortious action under the given
circumstances. In this case the plaintiff had acquired in auction the lease rights
of fishery in a tank. Anticipating a breach of peace over the tank on the basis
of information given by the defendant, the Magist rate attached the tank under
section 145 Criminal Procedure Code. The plaintiff sued the defendant for
damages for the loss suffered due to deprivation of his fishery rights by reason
of the attachment. The COUrl held that the defendant was not liable for the loss
because the deprivation of the plaintiff's ri!:,hl to possess the tank was due to
the order of attachment passed by the Magistrate. The Magistrate's order was
an intervening factor which broke the chain link between the plaintiff and the
defendant. The dispute in the case revolved around the possession of lease
rights in fishery. The case was ultimately dismissed as the court could find no
evidence implicating the defendant in tort.
The aforementioned cases reflect a very important point which is that
the courts do acknowledge an action in tort for a violation of an individual's
right to catch fish even if it is a lessee's right and :s personal or a natural right.
As the situation stands today the common man is left With very few natural
fishery rights since the right to catch fish ha-, been nationalised by the
government. The personal and natural rights to catch fish have been
considerablycurtailcd under the (Central) Fisheries Aetl~Y7 and various State
enactments. Under these legislations lease rights arc granted to the people and
criminal sanctions arc issued against persons offending the Acts. There is uo
statutory right for remedy in these Acts which means that though an offender
can be punished he cannot be subjected to roruous liabili:y.
This docs not however rule OUI an adion in tort al common law which
as mentioned above is already recognized by the courts, For the development
01 iort law in this area support from the judiciury as well as the government is
extremely necessary. Atlcast from the government's side this support is nul
corning because the policy of the government instead of "llowing the fish
lodu5try to thrive is Jeopardising its very cxistei•cc OJ sai.cuoning the
COIIIlruction of huge dams across rivers in different paris of the country. In
such situations the people whose right to catch fish is displacec, the. eby cau
only seek compensation at common-law and the judicia, y which is ofreu tOI n
between furthering the implementatiun of govcmmc.n policies vis-a-vis the
interest of the common fisherfolk would be slow to grant tfie relief prayed for.
Therefore, the Iishcrfolk's right to huld the government liable in tort is beset
with problems. Furthermore even if the right to seck compensation exists in
law the fact that not many Iishcrfolk arc aware of their rights to claim damages
Ior violation of their customary and commun-law rights greatly prevents the
r r , '" I h of tort law in this regard. The penal and civil sanctions provided under
~ht.: various fishery statutes Ior offences comrniucd to fishery rights are not
adequate to check the corruption and exploitation suffered by millions of
fishcrfolk on account of actions of the government which indiscriminately
Tortious Liability in Water Law 181

continues to support the policy ofconstructing huge dams and rivers in different
parts of the country. Arc not these peoples' common law rights affected? The
fact that to date there is very scanty case-law on the subject is because the
people ofIndia are unaware of their common-law rights or even their customary
rights in fisheries. Only when the people become conscious of their rights can
they bring an action in court and it is only then that the judiciary can play an
active role in controlling the deteriorating condition of the fisheries and the
fishcrfolk through the operation of tort law.

F. SOVEREIGN IMMUNllY
In India the law relating to the liability of (he Union and the States for
tortious acts is still in a developing state. The principle of immunity of the
government for its tortious acts though an archiac principle of EngJi.\h I..Iw
prevalent in the bygone feudalistic days. still survives in some rl:.\pl:t'l.\. The
extent of the liability of the government and its servants in tort is defined in
Article 300 of the Constitution which declares that the government of Indi.r, or
of a state, may sue or be sued "in relation to the respective affairs in the li~e
cases as the Dominion of India and the corresponding Provinces or the
corresponding states might have sued or been sued" if the Constitution had 11, II
been enacted. This. however. is subject to any law made by the Parliament (If
the Legislature of the states.
The Activities of the state are multifold as a consequence of which
injures may be caused to the rights of the private persons. Can the government
be held liable to compensate the injured person or an injured class? Or docs
the government enjoy absolute immunity on the ground that its activities arc
acts done in the exercise of sovereign power. This doctrine of immunity and
distinction between sovereign and non-sovereign functions of state based. ,n
common law principles which prevailed in England can hardly be made usc ,,:
under the Indian set-up today. Though the rights exercised by the state OV~f
natural waters are sovereign in character they cannot beexercised arbitrarily, ,1
The right of the state to administer or regulate the waters flowing within its
territories for irrigation pwoses is supreme subject to respecting the
proprietory rights of others. The nature of the states rights in natural is
explicitly embodied in the preamble to the Northern India Canal and Drainage
Act. 1873 which provides that" ....• throughout the territories to which this Act
extends, the Provincial government is entitled to use and control for public
purposes the water of all rivers and streams flowing in natural channels. and all
lakes and other natural collections of still water..... ~e Bombay Irrigation Act
1879 also embodies a similar right in its Preamble.1
Most of the irrigation Acts require the State governments to issue a
notification wbe~&rer water of rivers, streams etc., needs to be regulated for
public purposes. In this regard the canal officers are empowered to enter
on any I~ remove any obstruetioD, close any chanDel and exercise necessary
powers. Similar provisions exist in the Bombay Irrigation Act, the Rajasthan
Irrigation and Drainage Act, the Beogallrrigation Act, the Bihar Lift Irrigation
Act, the Mysore Irrigation and the Andhra Pradesh (TelegaDa Area) Irrigation
1Tli1
Act.
182 WalerLow in Indl«

1. Rights ofgovemment vis-a-vis the inirators.


The government's or its servant's right to regulate the distribution of
natural waters though sovereignin character is not absolute. It is subject to the
right of the irrigat~rl to enjoy their proprietory rights. In Secretary of State v.
Palianiyappa Pillai 0 the court held that the right of government to administer
and regulate the dislribution of water of tank could only be exercised without
affecting the proprietary rights of others. The paramount right of the
government to regulate irrigfMoD is subject to the rule laid down in Robert
Fisher v. Secretary of State tbat while controlling and rcgulating the
distribution of water the governmentshould not inflictinjuryon otbcr riparian
owners or diminish the supply whicb the irrigators have been utilising. This
rule of law bas been confirmed in othcr cases as welll()IJ
It has been held in Sankilravaidive/u Pi/lai l lO that it is DOW settled law
that the government has the right to distribute the water of government
channels for the benefit of the public, subject to the right of ryotwari land
holders to continue to receive thc accustomed supply.
In Ram Odayall & others v.Subrt.U1UUliaAiYIlI'III the governmcnt without
anyjustifyingcause blocked up the mouth of the channel cutting off the entire
waler supply which the plaintiff had been accustomed to for the purpose of
irrigation for a period of more than 60 years without any interference on the
part of the government. The court held that the plaintiff was entitled to an
injuction directing the government to remove the blockage at the source.
The rights and obligationsas between State and lhe irrifators in India
with respect to irrigation rest largelyon customs and practices II and therefore
the government's power to regulate the distribution of water is alwayssubject
to the customary rights enjoyed by certain sections of the people. Even the
Indian Easements Act, 188~ has keptthe area of customary rights outside the
scope of sec.2(a) of the Act. 13
From the above cited cases it can be seen that the government has been
held responsible for unjustifiably encroaching upon the water rights of the
irrigators and the courts have issued injuetions against the government even
when no damages have acerued to the plaintiff. The courts have no doubt
maintained a consistent view that had the government made alternate
arrangement to meet the supplyof water that the irrigatotors were accustomed
to then tbe action of the government in the form of either constructing a
calingulaor blockingthe moutb of a particular channel could have received the
assent of tbe court. An important point tbat emerges bere is that tbe courts in
none of the cases refer to the common-lawobligation of the government of not
causing barm to tbe propriety enjoyed by others nor do tbey bold the
government responsible on account of negligence in not providing adequate
alternate arrangement. Omission to make adequate alternate arrangements
also, after a1I, amounts to a tort!
In later cases the tortious acts of the government have been brought
more clearly within the ambit of the common-lawprinciples of negligence and
tbe gencral d~ty of taking care not to cause damage to 'W~er. In Secretary of
Stale of India in Council v. Ramtohlal Ram and others "the court beld that
the government byconstructingan irrigation canal undertakes a duty to protect
other parties against damage arising from the water of the canal and if it does
Tortious liability in Waler Law 183

nottake adequate precautions to deal with the overflow of water from the canal,
for instance, by means of an outlet at the tail-end of the canal "it is liable for
negligencein tort md must"compensate those to whom damage may be caused
bysuch overflow. I
2. SlatutOl)' Imiraunity
With the emergence of the social welfare concept there has been an
increase in the area of state operation. This has led to the conferring of a
number of statutory powers on the administration. If the Legislature
authorizes the doing of an act then no action can be maintained for that act
unless negligence is proved. This means that the person who has sustained a
lossbythe exercise of a stat utory power is without remedy, unless the legislat ure
has provided him with compensation. No action lies for damnum sine injuria,
the remedy is to apply for compensation, if any, provided by the statute
legalisingwhat would otherwise be a wrong. The principle is that the act is not
wrongfu~ not berusc it is for a public purpose, but because it is authorised by
the legislature. I I The underlying philosophy behind the statutory imm~nity is
that the lesser private rights must yield to the greater public interest. I 1 The
statutory authority extends not merely to the act authorised by the statute but
to all inevitable consequences of that act. 18 In other words if the loss caused
to tbe individual is the inevitable result of the exercise of the stat utory functions
and not due to negligence no claim for damagef: is sustainable. Thus in
Municipality 01Hubli v.Lucus E.Ra/li and another, 19 tbe appellate civil court
dismissed the suit on tbe ground that "if negligence in the statutory powers and
duties was not brought home to the Municipality, a suit against them must fail
as being unsustainable in law bowever great the damage the plaintiffs might
have suffered from tbe extraordUw)t flooding uncontrolled by the old tank
dam." In the instant ~tbe Hubli Municipality, a body corporate under the
District Municipal Act sought to extend the Municipal Cotton Market by
reclaiming the bed of an ancient tank which bad largely silted up. In the course
of tbe reclamation operation tbe defendants altered the levels of the tank &
diverted the natural and customary flow of water. As a consequence of such
alteration in the tank bed, when in the month of June 1907 there was a sudden
and extraordinary rainfall at Hubli, the entire Municipal area (including the
reclaimed area) was over flooded and the water flowed into the plaintiff's
Ginning factory (which was situated to the south of the tank) and completely
destroyed the goods therein. When the plaintiffs claimed damages the court
rejected tbeir claim by stating that the old tank was a public tank vested in the
local Municipality and in reclaiming it the Municipality was simply exercising
the powers conferred upon it vide section 54, clause(g) and (i) of Bombay Act
III oC1901 and unless negligence was proved the defendant - Municipality could
not be held liable for any injury caused to the neighbouring land. The court
cited with approval the obsfrration made by Lord Blackburn in Geddis v,
Proprietors 01BonnReservoir 1 that "no action will lie for doing that which the
legislature has authorised, if it be done without negligence, although it does
occasion damage to anyone."
3. LiDbilitylor Statutory dutiesNegligenlly Petformed
However, if ~gs authoa:ized to be ~RPe by a statute are carelessly or
neg1igentlydone, an action is maintainable. It is presumed that the statute
imposes a duty to take reasonable care to ensure that no unnecessary damage
184 Water Law in India

is done while exercising the power. Powersgiven by a Sltie must be exercised


reasonably, and not to the prejudi5:zff the public. In Dholka TowII
Municipality v, Desaiblaai J(gJidas Patel a drainage channel was built by the
government for the convenience of the Municipality whichit took over. Owing
to some default the drainage water instead of flowing along the assigned
channel,flowed across the road into the plaintiff's fieldsand caused damages
to the plaintiff. The court found that the damage was due to the negligenceof
the Municipality which wasdutybound to carry on repair workson the drainage
system so that it did not cause nuisance to the neighffiuring owners. In
Vithaldas v. Municipal Commissioner of Bombay the defendant
Municipality excavateda trench for a pipe drain in a public lane. The trench
remainedopen for some time and owingto a heavy fallof rain water collected
in it and by percolation caused a considerablesusbsidencewhichcaused heavy
damageto the plaintiff'shousesclosebythe trench. It washeld that the keeping
of the drain open for a considerable time amounted to negligence and the
defendant was liable. Where a railway companyallowedthe rain water to now
for some four miles by the sides of their railway line through gutters made up
of continuous burrow pits and then allowedit to discharge itself on the lands
of the plaintiff, the railway companywasheld not to have exercised the pow~rs
conferred by the Indian Railways Act and was held liable for negiigence. 12
Whiletort lawrecognizes the plaintiff's rightto sue the Municipality for
damages for non-supply of water to their house a court cannot issue a
mandatoryinjunction to the defendant to improvetheir entire Municipalwater
wells "byputting up new and powerful engines" so that water may reach up ~~
the second storyof the plaintiff's house. In Kashi Nath v.Agra Municipality; 1
section 228sub-section (1) (c) ofthe V.P. Municipalities Act of 1966 imposed
a statutory duty on the defendant "to supplywithineverytwenty-four hours, to
everyowneror occupierentitled to a houseconnexion under c1.(b) whoseland
or buildingis provided therewith,such amount of water as is prescribed with
reference to the water tax payableby him and his estimated requirements for
domestic purposes, into a storage cistern created in or on the buildingor land,
of a capacity not less than such amount and of a prescribed pattern and at an
altitude not exceedingthe maximum prescribed for. the same. The court found
that the defendant was nowhere found to be negligent in carrying out its duty
under the statute and that the failureto supplywater to'the upper storey of the
plaintiff'shousewasowing to the lowpower capacityof the Municipalengines.
In such circumstances the question of tortious liability on part of the
Municipality body did not arise.
In Municipal Board, Matluua v.Gopi Nath, 128the court held that section
228 of the V.P. Municipalities ftlct 1966 imposes a duty on statutory
corporations like a Municipal Board not to be negligent in the manner of
performance of anyact authorised bystatute. In Uttar Pradesh under section
228of the V.P. Municipalities Act, everyMunicipality, in which a water tax is
imposed, is bound to maintaina systemof water-supplythrough pipes. If the
MunicipalBoard usespipesofveryinferiorqualityor in a dilaptated condition
which any reasonable man would have rejected as incapable of withstanding
pressure or if after laying good pipes it continues to use tbem after the period
of their normal age and does not replace tbem with new pipes with the result
that the pipes, beingunableto withstandthe water pressure, givewayand water
Tortious Liability in WaterLaw 185

overflows into the street or the adjoining h~uses, the Board will be liable for
any damage caused by the escaping water. I
Whether an employer could be held liable for negligence committed by
his employee was established in the affirmative by the Punjab Chief Court in
Municipal Committee of Lahore v. Nandlal. DO In that case the plaintiff had
filed a suit for the recovery of Rs. 3,798.70 on account of damage caused to his
house by bursting of Municipal water pipe which passed in front of his house.
The court found that despite notices having sent to the Municipality the
engineer on duty did not take adequate precautions to prevent damage being
caused to the plaintiff's house. As aresult the court held that the fault of the
engineer was the fault of the Municipality and awarded damages of Rs. 2500/-
to be paid by the Municipality.
4. Extent of application ofdoctrine ofstrict liability to government action
In most of the cases involvinga government body and a private individual
the trend of the judiciary has been to pr~lccl the actions of the government
even if it is at the cost of the individual. 1 1 Therefore, the courts have been
reluctant to hold the government liable in tort where there is no negligence
proved on its part. This attitude of the judiciary has restricted the scope of the
extension of the application of doctrine of strict liability to government action.

As early as in Madras Railway Compally132 their Lordships while


approving generally of the doctrine laid down in Rylands v. Fletcher observed
that the rule was not generally appliable to the circumstances in India and
certainly not to a situation where the rights have been conferred by a statute.
In the instant case the plaintiffs had brought a suit against the defendants for
the recovery of Rs. 45,000 for damage caused to their property as a result of
overflow of water from ancient tanks that were under the supervision and
management of the Zamindars. The plaintiffs sought to invoke the principle
of "sicuti suo ut non laedas alienum" on the basis of the doctrine of strict liability
as propounded in Rylands v. Fletcher. In the present case the dependents were
vested with the public duty of maintaining the existing tanks and since the banks
of the tank were washed away by an extraordinary flood without nH~ligence on
the part of the Zamindars no damageLwere awarded by the court.' In Pratab
Dialdas v. Hyderabad Municipality I the plaintiff sued the Municipality for
damages on the account of damage caused to his building owing to a leakage
having taken place in the main water supply line of the Municipality. The pipe
was installed at a depth of8 or 9 feet below the surface of the street. Following
a leakage in the pipe the water collected under the plaintiff's building and
percolated in all directions. Now, in a ordinary suit based on negligence the
burden is always on the plaintiff to prove that he suffered loss complained of
in consequence of the negligence of the defendant. But, in the present case,
there was no evidence to prove that the defendants were as a mailer of fact
negligent, therefore, it was not proper to shift the onus of proof on plaintiffs
under circumstances which arc consistent both with the existence and
non-existence of negligence. In situation like the prescnl case it was very
natural to resort to the rule laid down in Rvlands v, Fletcher which meant that
the defendants could be held liable even "if there was no negligence on their
part. But, the court in the instant case laid down that the rule in Rylands v
Fletcher has not been applied where damage is caused by works carried out and
186 Waler Law in Indio

maintained by the defendants in exerciseof permissive powers vested in them


by stat~e. The court drew support from the case of Green v. Chelian Waler
Works 1 in whichdamage wascaused to the plaintifrs property by a burst in a
main buildingto the watcr workscompanyand in dealing withthe applicability
of the rule laid down in Rylands v. Fletcher Lindlay, LJ., observed as foUows:"
that the case is not to be extended beyondthc legitimateprinciple on whichthe
House of Lords decided it. If it was extended so far as straight logic might
require it would be vcry aggressive decision. Here the defendant company
were onlydoing what they were authorised to do by Act and, as they were not
guiltyof negligcncthey are not liable",
Even today the' Indian low does not provide any remedy for the loss
incurred to an individual byan action of the government which can neither be
described as illegal nor negligc~ Such a situatlou arose in K.Nagireddi v.
Government of Andhra PratUsh. 1 The plaintiffowncd large orchards which
suffered extreme damage due to percolationof water in a canal constructed by
the state government. His allegationwas that his orchard had been damaged
owingto the faultylaying of the canal which was not cemented or lined at the
floor as a result of which water through percolation seeped into his orchard.
The High Court dismissed the suit for damages on the ground that (1) there
was no faulty laying of the canal by the state; (2) there was no negligence in
laying of the canal and (3) there was no legal obligation the govcrnment to
cement the floor of the canal. The facts of the case clearly depicted that the
landholder had suffered damage because of seepage of water and yet he was
not compensated simply because no negligence could be proved on tbe part of
the government. The court could haveresorted to the principle ofSlrietliability
which it did not only because the government bad exercised its powers
conferred ~r statute which extended im~nity against the applicabilityof the
principle: The court justified its stand by stating that the general rules of
negligence as stated bythe HOusfsof Lords in EllStem South African Telegraph
Com. v. CapeTown Trammwaysl forlhat "amancannot increase the liabilities
of a neighbour byapplyinghisownproperty to special use whethcr for business
or for pleasure" cannot be applied to Indian conditions because the
construction of projects or laying of canals for irrigation cannot be stated as a
special user of the land. In fact,in India the question often asked is"howcould
people ~ve if there was no water in tanks and-reservoir". In SanJuuavaidiveJu
Pitlai's 1 9 case the court observed that it is one of the important functionsof
the govcrnment in this country to-construct ncw worktJ>f irrigation and
maintain old ones according to means and circumstances.
As e,rll as 1940 the court had hcld in RJundas Tapandas v. SukJau
Municipality 4 that though in Cases allegingnegligence against a public body
the burdcn of proving nf~igence is on the plantiff yet reflecting upon the
principles of section 106 of tbe Evidence Act, 1882 the plaintiffcould be
precluded from the burden of provinga particular fact. At the same time the
court was of the opinion that where there was no want of care on the part of
thc Municipalityfactors beyond the control ofthe Municipality must be tak~n
into account to explain the bursting of the water pipe which bad resulted.m
damaging the plaintifrs property. These extraneous factors may compnse
increasing traffic on roads, subsidence of the soil, and other such factors. In
other words the court was tryingto emphasizethe point that in order to make
the Municipality liable the plaintiff must prove tJtat the powers conferred by
Tortious LiobiJily in Waler Law 187

the legislature on Municipality were not exercised with reasonable care and
skill.
It is submitted that the judiclalline of thinking has made it very difficult
for the common m.an to hold the government strictly liable where there is no
negligence proved. Therefore more than often a. private individual is
compelled to suffer when thea: is a question of defending the exercise of a
statutorypower or a governmental policy. Thus the construction of big canals
evenif it causes losses to one ~ndual or a group of individuals has usually
been approved by the judiciary. Is it not obligatory on the part of the
government to share equally, among its citizens, the losses suffered by certain
individuals on account of its own actions. All public projects are meant to
benefit the comm~ as a whole. Should not the losses also be shared by the
entire community?
The law holding the government or its servants liable for tortious acts in
water-related cases is still evolving and has not yet settled down. In some
situations the judiciary has extended full support to the government and
absolved it from tortious liability even if the individual has suffered harm in the
process. This approach is more apparent when the act of government or its
servants has received statutory sanction. But as far as regulating water for
irrigation purposes is concerned the courts have consistently held the
government responsible if there has been any unjustified encroachment upon
the customary rights of the people (whether ryotwari or others) or the rights
enjoyed by the riparians. This trend of judicial policy is based upon section
2(b) of the Indian Easements Act, 1882, which has the effect of excluding from
the operation of the A~ those ~0DJ8I'Y and.other rights in or over property
which are not recognised as cases of easements by section 18 of the Act. The
intention of the legislature to accord. immunity to the customary rights of the
people vis-a-vis the sovereign powers of the government exercised over natural
waters is because of the pecularitiesof the system of irrigation in India, which
is largely governed by unrecorded customs and practices. It is important to
note here that the Easements Act gives protection only to customary rights of
the people and not to cUSJfmaryeasements which are subject to the sovereign
rightof the government. 1 In fact section 2(a) of the Easements Act expressly
saves the right of the government in the water of natural rivers and streams and
other publicirrigation works from the operation of the Act. The rule embodied
in that seaion implies that no pescriptive right of easement can be claimed
against the government in waters of rivers, streams etc... Such provisions tend
to widen the scope of the principle of sovereign immunity enjoyed by the
government and curtail the rights of the injured party to seek damages in the
court.
Moreover, the Act nowhere attempts to define, what is meant by a
'customary right'. The courts have often indulged in speculation while
interpreting the term 'customary right'. A customary right to the use of water
should, logically speaking, be necessarilybased on the principle of "accustomed
user" which aBain needs to be included and defined in the Act. Further, if the
c~omary rights or other similar rights are specially excluded from the
operation of the Act so that a right of action accrues to the inj ured party in case
there is 1!1 infringement of such rights there appears no valid reason as to why
the poor marginal farmers are also not excluded from coming within the fold
188 Water Law ;/1 India

of the Act as a class deserving special treatment. In India, marginal farmers


are mushroomed all over the country and if their rights to water arc in any way
curtailed or infringed bythe government theywould be denied a right of action
on the ground that the right of the government to regulate and control water is
sovereign.
The courts have generallyfollowed the colonial policyof protecting the
actions of the government that have been authorised by the Legislature. This
policy of the judiciary has been based on the age-old English maxim that the
"Kingcan do no wrong" which has adverselyaffected the growth of tort law in
water cases. Admittedly, the irrigation Acts and the Municipalities Acts do
have provisions of compensating the inflicted party in case any damage is
caused in the course of the exerciseof powers conferred upon the government
under the various Acts. Again, even if compensation is included in the Acts as
a form of remedy there is no guarantee that the amount of compensation would
be in proportion to the quantum of damages suffered. Usually the act of
compensating the injured party vestswith the government (under the statutes)
which is not usually in the interest of the injured party. There have been
situations where the judiciary has f0f.nd the quantum of compensation in
proportion to the damage too meagre. 46
While the judiciary has held the government or its servants liable in tort
for negligentlyperforming their statutory duties it has restrained from issuing
injunctionsto governmentbodies to either comp'c~it to improve its watcr system
or to mak,i satisfactory sanitary arrangements. 14 In Ram Chander v. State of
Haryana 1 the court held that no mandamus would lie to compel the
performance of the discretionary duty embodied in section 57 of the Northern
India Land and Drainage Act, 1873. Under the said section the government is
vested with the power of formulatingschemes and providing drainage works.
The petitioner under Article 226 of the Constitution sought the issuance of a
writ in the nature of mandamus to the state of Haryana for making a scheme
for providing suitable drainage works to protect the lands of the petitioners
from floods or other accumlation of water under section 57 of the Northern
Indian Canal and Act, 1973. The court laid down that the "performance of the
duty by the state government rcCerred to in section 57 of the Act is made
conditional, on the judgement of the state government as to the necessity of
providing the drainage-works in question" and that the "High Court cannot
substitute itself in the place of the state government and hold that it appears
necessary to make the drainage works. "The court also stated that once the
government finds that a particular case falls within the four corners of section
57 of the Act, it is bound to frame a scheme and take action under the section
and to this extent "may" in section 57 must be read as "shall" which cnjoys the
performance of a duty on the canal authorities in public interest.
In t~i.f context the view laid down in Ratlam Municipality v .
Vardichand 4 deserves a special mention. Though the case fellunder criminal
jurisdiction a verysignificantpoint emerged from it which should be followed
in all tort cases (i.e, between a government body and an individual) in future.
The court in that case held tha.t it was the duty of the Municipality under the
Act to clear the filth from the street and the Municipalityunder the Act could
not take the plea that it bad limited financial resources to put into operation.
Considering that millions of people arc going to suffer unremedial injury,
Tonious Liability ill Water Lalli 189

collectively or individually on account of omission of the performance of duties


(whether mandatory or discretionary) conferred upon the government either
under a statute or at a common-law it is strongly recommended that the
lawshould gradually move towards holding the government liable whenever it
fails to perform it~ duties.
The principle laid down in Madras RailwaylSO that the rule in Rylandsv.Fletcher
was not applicable to a situation where rights have been conferred by a statute
is no longer good law. Following Madras Railway Co's case the courts have more
than often laid down that in order to make the Municipality liable the plaintiff
must prove that the powers conferred by the legislature were not exercised
reasonably which is an arduous task. 'Considering the economic, scientific and
technological constraints that an individual might be subjected to while
collecting evidence to prove negligence on the part of a government body the
court should hol~ the government responsible on the basis of the law laid down
in M.C.Mehta'sl I case. It is true that in India the laying of canals and the
construction of tanks and reservoir cannot be termed as putting the land to
'non-natural' use as established in Rylant!.," v,Fletcher since the majority of the
Indian community depends on water in canals, tanks & reservoir to meet their
irrigation and other domestic requirements. It is also true that one of the most
important functions of the government is to construct new works of irrigation
and maintain old ones. But this function of the government docs not give it a
legal or moral sanction to continue formulating new irrigation schemes at the
cost of an individual or class of individuals. If the government undertakes to
construct gigantic projects like the Narmada and the Tehri should it not be held
liable in tort for uprooting and affecting the livelihood of hundreds of poor
tribals ? The policy of the government to build new dams so that water may be
more easily available to the people is not being refuted. The question which
often irks thecommon man is who are going to be the beneficiaries of such
schemes? The rich or the poor farmers or both or none were the scheme to
be abandoned?
Admittedly, there have been occasions where the judiciary has made
conscious efforts to make the government more aware of its common law duty
towards thl; people by giving a' restrictive view of the so-called 'sovereign'
fUOI.:tions l , - but such Instances are rare. The question of the scope of immunity
of tortious acts commiucd by the servants of the s~rvants was considered by the
Law Commission of India in its First Report, I 3 in which the Commission
recommended relaxation of the rule of government immunity and doing away
with the distinction between sovereign and non-sovereign functions.
With the emergence oflndia as a welfare state there has been an increase
in the responsibilities ofthe state towards its people which has made the citizens
more vulnerable to the tortious acts of the government or its servants. In such
state of affairs "there is no convincing reason why the government should not
place itself in the same position as a private emgloyer subject to the same rights
and duties as arc imposed by the statutc.,,15 An enactment to define the
position of governmental tortious liability in water law is urgently required. Of
course, the law should progress in favour of II\(: subject since any law regulating
water is 10 be formed in the context of a welfare state. The legislature should
avoid including provisions giving immunity to the government in any
190 WaterlAw in Int:lia

water-related Act. In fact there should be DO protection clauses in ~Act for


they tend to limit the scope of holding the government liable in tort.
G. OTHER DEFENCES
The most important objectiveof the lawof tons IS to regulate and mould
the conduct of persons in a civilised society. It has to look towards protecting
the plaintiff's rights as well as consider the arguments put forward by the
defendant to act within certain limits. The law has thus to strike a balance
between conflicting interests and achieve what appears to be the most just of
circumstances.
In any action for tort it is very natural for the plaintiff to maximise the
quantum of damages suffered by him. Similarly, it is very natural for the
defendants to minimise his quantum of liability so incurred. In water-cases
there have been different kinds of defences raised by the defendant to absolve
himself from being held tortiously liable. Each of these defences have been
discussed below.
1. Act of God or vismajor
An act of God or vis major is described to uc such a direct violent,
sudden, such irresistible act of nature as could not, by any amount of ability,
have been foreseen, or-ifforeseen could not byany amount of human care and
skill have been restricted. The term "Act of God" is limited strictly to those
cases of inevitable accidents whicharc occasioned bythe elementary forces of
nature, unconnected with the agency of men or other courses, and does not
include cases of damage which could have been prevented by such an amount
of foresight and care as can be reasonably expected from an adjoining owner.
Whether an unprecedented rainfall is an act of God or whether an
extraordinary flood is an act of God as to give grounds to the defendant to
escape liability for damages suffered by the plaintiff is subject to varied
interpretations depending on th~ facts and circumstances of each case. In Ram
Lal Singh v. Lill DharyMullton! 6 the court held that "where a defendant has a
prescriptive right to maintain a bundh" and takes all reasonable and proper
precautions for its safety "he cannot be made liable for damage caused by the
escape or overflow of water on the lands of others and the consequent injury
of the crops thereon, if the escape or overflowbe caused by the act of God, or
vis major." In that case the plaintiff brought a suit against the defendant for
damages caused by the "penning back of water" on the ground that the
defendant had no prescriptive rightto maintaina bundh for irrigation purposes.
Citing the example of Madras Railway Company's case - the court explained
that the system of irrigation in India is such that it is customary to store water
by means of building tanks or bundhs and if damage in fact was caused by an
unusual flood on account of unprecedentcd_~ainfall, whichbeing an ~t of God
the owner of the tank was not responsible.I) In Murlidhar KlInlli'sl case the
Nagpur High Court held that before taking the plea of an act of God the
defendant must showthat he hadtaken all kindsof precautions to prevent injury
to the plaintiff's fields. In that case the court held that if water in the tank had
risen beyond the required height it was certainly the duty of the defendant to
let out water from the tank and keep it within the required height in order to
avoid inundating the plaintiff'sfields. The fact that the cause was heavyrainfall
for two years did not absolve the defendant from the responsibility of taking
TOI1ious Uability in Water Low 191

diligeDl care to prevent damage to his neighbour's property. While explaining


the concept of an act of God the court held that if adequate steps are not taken
by the defendanL to prevent rain water from collecting in his land so as to
prevent its percolation and cause damage to the neighbour's fields the term
•Act of &~" cannot be invoked. In Purushotama Rajabarv, Kanayyayya and
another the court had to decide the question whether flood causing breaches
in the irrigation works could be considered as an "Act of God." The court held
that an agriculturist may reasonably be assured that irrigation works which
control the flow of water will be properly maintained and if they are swept by
floods he may reasonably claim to have been taken by surprise and claim
damages againstJhe government. In M.C.of City of Bombay v. Vasudeo
Romocllolldara,IG the court held that vis major to offer a defence must be the
proximate cause i.e. the common cause is not merely a cause COUSOII lion of
the damage complained of. Any neglect to provide for conditions not
exceptional may involve liability although vis major or exceptional conditions
may also be established, The court categorically maintained in that case that
before an act of God may be admitted as an excuse the defendant must himself
have done all that he was bound to do. Where damage is caused due to the
insufficiency of precautions taken by defendant in constructing bridges and
embankments in creek for carrying duct line to cope with conditions which
might reasonably have been withanticipated.the defendant is liable. The mere
fact that vis major co-existed or rather followed negligence is no adequate
defence.
Z. Colltriblltof)/ncK/igcllce
The defence of contributory negligence is another ground which has
been raised at some point or the other by the defendant to escape the liability
of paying damages to the plaintiff on account or injury done to the property as
a consequence of either diverting the course of water channel or laying of dams
and embankments. In Akhuri Thakur Prasad & Others v. Dwarka Singh &
others, 1(,. the defence of contributory negligence taken by the defendants was
rejected on the ground that where the wrong committed in the first instance
was by the defendants the effect or the wrong continued till the cause was
removed for which the defendants Were liable. The fact that an opening was
made in the embankment by the defendant and was not closed by the plaintiffs
even though no obstruction was offered by the defendants did not and could
not absolve the defendants from the liability or
paying compensation for the
loss incurred by the plaintiffs.
The defence of contributory negligence has been recognised as a valid
defence where water has caused damages owing to construction of buildings.
In Finn of Tuisidus KisUII Daval v. Finn of .rl.K.Afalldiwa/a, 162 the Sind court
held that the rule of strict liability has been greatly modified to meet the
conditions of modern life. In that case as a result of building operations being
carried out in the defendant's plot, water which was collected for a temporary
purpose on the roof. of the building under construction, escaped into a
neighbour's building and caused damage. The court held that although the
plaintiffs may have been guilty of neglect and although that negligence may, in
fjlet, have contributed to the accident, yet, if the defendants could, in the result,
by the exercise of ordinary care and diligence, have avoided the mischief which
happened, the plaintiffs negligence will not excuse him. There was no evidence
192 Water Law in India

to show that the defendant had acted negligently. He had taken all care to
employ a competent contractor and architect to carry on the building
operations and despite this if the water had still escaped into the neighbour's
house it was not the fault of the defendant. The court explicitly stated that
without proofof negligence on the part of the wrong doer damages could not
be claimed. Byholding the defendant not liable the court was perhaps taking
into account the changing Conditions of modern life. For holding such a view
the ~ourt drew support from the case of Scottv. LondonandSt. Katherine Docks
Co. 63 wherein the court held that:
"Traffic on the highways,'whether by land or sea, cannot be conducted
without exposing those whose persons or property are near it to some inevitable
risk; that being so.those who go on the highway,or have their property adjacent
to it, may well be held to do so subject to their taking upon themselves the risk
of injury from that inevitable danger; and persons who by the licence of the
owner pass ncar to warehouses where goods arc being raised or lowered,
certainly do so subject to the inevitable risk of accident. In neither case can
they recover without proof of want of care or skill or accident and it is believed
that all the cases in which inevitable accident has been held an excuse for what
prima facie was a trespass, can be explained on the same principle, viz. that the
circumstances were such as to show that the plaintiff had taken that risk upon
himself."
In considering whether a particular case is within the rule, the court was
making allowance for the conditons of modern life and the accidents which are
inevitable where men live and carryon business in communities. Just as traffic
is a necessity of modern life, so surely 3'j building operations. The court cited
the case of Bomanjce v. Moholl/fdo/i lC which decided that though a person
who stores water in a house subjects himself to the strict liability rule should
water escape into his neighbour'S property. a person who occunies one floor of
the house must be taken to have subjected himself t<) all risks and must prove
negligence if he wishes to recover damages for mischief. For these reasons the
court did not hold the defendant liable and attempted to drive home the fact
that for an application of the strict liability rule to water cases, without regard
to the conditions of modern life and such as the necessity of stores of vast
quantity in sufficient gallons for domestic purposes would be a great hardship
and a hinderance to modern business operations. An important point which
e,ml.'rges from the cases mentioned above is that where water causes damage
to operations the courts have been reluctant to concede to the defence of
contributory negligence without proof and have imposed a duty on defendants
to take care towards their neighbours whereas when damage is caused due to
percolation and seepage of water on account of modern building operations
etc. the defence has been given a wide interpretation. Such an attitude of the
judiciary tends to develop tort law which would cater to the needs of only the
privileged few, especially those who are in urban areas.
3. Law of Limitation:
Justice requires that the defendant is not subjected to the possibiliry of
being sued indefinitely, If a plaintiff has not initiated procedings within a
specified time, the defendant can plead that his suit is t~gsbarred. In Punjab
Cotton Press Company v, 17,e Secretary of Slate for India it was held that a
suit brought against the action of the canal officers in constructing a channel
Tortious tiability in Wuter Law 193

under section 6 of the Northern India Canal and Drainage Act, 1873(NICD)
and anysuit for damages consequent thereon must be brought within 90 days
ofthe date of damage. In the present case the construction of the Raja Branch
Tail Distnbutory of the upper Chenab canal had caused flood water to go the
plaintifrs property during the floods of 1971 causing serious damage to his
fields. The defence of the defendant was that the suit was aarred under.
Article 2 of the Limitation Act, 1908 (Act 72 of 1963).1 The court
categorically stated that the issue of determining whether the act of
constructingthe channel was wiseor unwisewas clearly covered by sections 6
and 15ofthe NICD Act and as suchbarred b~ihe limitation period. However,
inStateo!Punjab v,MlsModem Cultivators,l it was held that Article 2 of the
Limitation Act cannot apply to caseswhere the act or omissioncomplained of
i! not alleged to be in pursuance of statutory authority. In the words of
Hidayatullah J. (as he the was);
"Article 2 cannot apply to omissions in following the statutory duties
because it cannot be suggested that they arc in pursuance of any enactment.
Cases of malfeasance, misfeasance, or non-feasance mayor may not have
statutory protection. Act or omissionwhich can claim statutory protection or
is al1eged to be in pursuance of a statutory command may attract Article 2 but
the act or omission must be one which can be said to be in pursuance of an
enactment."
In this case, the plaintiff brought a suit for compensation against the
state government for damage caused to the plaintiff's crops and land due to
inundation as a result of breach havingoccurcd in the canal maintained by the
state government under the NICD Act. It was held by the court that sections
6 and 15 of the NICD Act l<>lS were not applicable to the present case. Section
6 was not applicable because the present case dealt with an entirely different
matter, With regard to the applicabilityof section 15 the court explained that
there was no doubt that under the section il is the normal duty of the canal
officers 10 make repairs and execute works to prevent accidents, but Article 2
of the limitation Act cannot apply to omissions in following statutory duties
hecause it cannot be suggested that they arc "in pursuance of any enactment."
In the words of Mudholkar J .(a.<; he then was) "Article 2 of the Limitation Act
is not attracted to a case like the present where the damages sustained by the
plaintiff arc not the resulL of anything done by the state in pursuance of a
sjatutory power exercised by it or by reason of an act which could properly be
said to have been performed in the purported exercise of a statutory power."
Clearlythe case wasnot governed byArticle 2 of Limitation Act but was
well within Article 36 of that Act.
In Mayo Ram v, Municipal Committee,169 the Lahore court held that a
suit for damages againstthe Municipality for negligenceor omissionin properly
maintaining the subterranean system of connexion-pipes and ferruls attached
to the Municipal main which leaked and damaged the plaintiff's property, is
governed by ArMc1e 36 and not by Article 2 of Sech.I of the Limitation Act.
In Ram BlJika,l the Indore Bench held that the act of diverting the course of
a naturally flowing water by putting up a dam or of providing a particular
channel for the flow of accumulated water so as to inundate the neighbour's
fields constitutes a recurring cause of action for which Article 36 of the
Limitation Act would apply. Since the present act is a continuingwrong only
194 Water lAw in India

Article 36 wouldgovernit. This case is distinct from the previouscases in the


s~nse that in all earlier cases the parties to litigation were a statutory bodyand
an individual, while in the present case both the litigants are private parties.
All the same the approach of the judiciary appears to be favourable towards
the private individual which can go a long way in meeting out justice to the
innumerable marginal farmers who may not be able to bring an action for
damages against a- government body on account of the limitation period
embodied in Article 2 of the Act.
4. Necessity and self-defence
Acts in defence of oneselfor another fall under necessity. Under both
situations the defendant's conduct must be reasonable in the circumstances.
The maindifferencebetweenthe twois that whileselfdefence anticipatessome
kind of aUrfok or threat, necessity docs not. In Shankar Bhagwanji v,Laxman
Bhagwa"i it washeld that where a riparian owner for his own purposes, to
rid hisland of the mischief, divertsthe watercourse to hisneighbour's land and
the accumulation of water there was not made by the neighbour for his own
benefit, it is the duty of the neighbour to protect himselffrom the threatened
danger irrespective of the consequences to his another neighbour. In the
present case, the defendant himself was exposed to the danger of flood by
consequence of the owner of the adjoining field having erected an
embankmenton hisfield to get rid of the evil. Sincethe mischiefhad originated
elsewhere it was very natural for the defendant to adopt protective measures
againstthe flood byerectingan embankment on hisownfield. As a result,water
wasforced back into the stream which naturally flowed into the plaintiff'sland
and inundated his fields. The plaintiffbrought a suit seeking mandatory and
prohibitory injunctions and also damagesso caused to the plaintiff. The court
held that" all those persons whose lands were affected by the water-course
during the rains had unquestionable right to adopt such measures as would be
efficient to protect their lands from floods." The defendants erected dams "to
protect their fields from what was a common danger" therefore the plaintiff
cannot haveanygrievance against either of them." A similarprinciple was laid
down i~ Shidramappa Mariappa Manvi v. Mohamed Yusuf Imamdinsab and
others1 t whereinthe court held that an ownerof property is entitled to protect
himselfagainst water which he has not brought voluntarily on his land. He is
entitled to divert water which threatens to cause damage to his land. In the
same manner his neighbours have a right to protect themselves against water
whichthreatens to damage their properties.
5. Picaofnovus actusinterveniens
Some times the conduct of a person other than the defendant, or an
event may intervene the defendant's wrongdoing and the plaintiff's damage.
If thisintervening factorisconsideredto besopowerfulas to eclipsethe original
wrong doing of the defendant then the defendant will be absolved from his
liability. It is then that the act is said to be a novus actus interveniens. In the
wordsof Cooke J.; on general principlesof causation,the question whichthe
justices ought" to ask themselves is "whether the intervening cause was of so
powerful nature that the conduct of the appellant was not a cause at all but
was merelya part of the surroundingcircumstances."
TOItious Liabilityin Water Law 195

In MlIkesll Textile Mlllsl 72 the plea of IIOVIlS actusinterveniens could not


be made available to the defendants as the breach caused in the earthen tank
was due to negligence of the defendants who had not taken enough care to
maintain the tank in order and not because of holes burrowed into the earthen
embankment by the rodents.
The defences enumerated above either completely absolve the
defendant of the tortious liability or mitigate his losses. Whenever damage is
incurred by the plaintiffbecauso of floodswhich may be caused by innumerable
factors like unprecedented rainfall, bursting of a tank or a dam etc. should the
defendant be allowed to plead defences ofact of God or vismajor in the present
day conditions? Can it not be said that it is actually the human factor which is
responsible for causing floods? That India has an erractic rainfall is a
geographical fact. Therefore the conservation and regulation of water for
agricultural as well as dometic purposes should be given top priorty, As far as
building of private embankments, bundhs and tanks for irrigation purposes is
concerned the cultivators have been givcn enough freedom under the various
irrigation statutes to do the same. The government has also not shirked from
floating irigation projects involving the construction of dams and canals in
different parts of the country. Still the flood situation in the country has not
improved. Every year floods continue causing devastating harm to people,
proerty and cattle in the state of Bihar, Assam, Maharashtra etc. The reason
for this can only be read in the general apathy of the people and the government
in maintaining these water conservation schemes. Coupled with this is the
problem of deforestation which has aggravated the occurrence and recurrence
of floods in the country. In such situations the courts cannot continue to hold
the old colonial policy of requiring negligence to be proved by the plaintiff
before the defendant can be held tortiously liable. Such a requirement will
also encourage the defendants to fortify further their actions by raising the
defences of contributory negligence, vis major, sovereign immunity, necessity
and self-defence etc.
The Limitation Act, 1963falso needs tobe amended in certain respects.
Article 72 of the Act which gives protection to the defendant from being sued
is indeed a misnomer today. The time-limit given to the plaintiff to sue the
defendant who has committed a tortious act under statutory powers is only one
year. An aggrieved party hardly wakes up to the fact that he has in fact been
harmed and the time runs out. It is suggested that the time period of 1 year be
extended to atleast 3 year-1Jas is in the case for obstructing a water-course or
diverting a water course.'
Apart from the usual defences of soverign immunity, act of God,
contributory negligence and the like, defences such as customary rights,
prescriptive rights. cascmentary rights arc also available to the defendants.
Suffice is to say that each case is unique and the responsibility of the judiciary
in balancing the conflicting interests between the plaintiffs and defendants
vis-a-vis the needs of a modern society can in no case be under valued or
avoided.
H. CONCLUSION
Water is 1I common and shared resource. It docs not belong to any
individual or a nation but both together. Therefore, there should be a joint
196 Water Law ill India

efforton the part of the people,government as wellthe judiciaryof a nation to


protect thiscommon resource.
An analysis of the case lawenumerated above showsthe feebleness of
the lawin tackling water related disputes. This is so because tort lawrelating
to water disputes has not been codified and it is surprising why it has not
bcendoneso up to thisday. Disputesarisingon account of violation of water
rights are inevitable. A perusal of case-law in the pre-independence era is
evident of thisfact. In facta comparison of pre and post-independenceperiods
shows that the numberofwatercasesdecidedbythe courtswasdefinitely larger
in the pre-independence period than in the post-independence period. This
meansthat the ground for the codification of tort lawrelatingto water disputes
has been fertile ever since the last quarter of the 19thcentury but no attempt
hasbeen madein thisdirection. It isequally surprisingwhy the numberofwater
cases coming to the courts in the post-independence era have been
considerably reduced. Either the disputes, especially betweensmallfarmers,
are beingtackledat the local level forwhich there is no definiteinformation or
the nature ofdisputescouldhave takensucha char..ctcr which might beoutside
the power of the judiciary to tackle or the high rate of court fcc could be
preventing a large number of people from seeking redress through courts.
Whateverthe reason there is an immediate need to codify tort law relatingto
water rights.
The legislature shoulddrawup ruleswhich would take into account the
precise nature of the problem in its various dimensions. The concept of
liability should be expandedkeeping in mindthe economic losssufferedbythe
injured party. In mostof the cases highlighted abovethe absence of a duty of
care was used to exclude liability for economic loss. There is a general
consensus of opinionupon the fact that it is usually difficult for the plaintiffto
prove the existence of a dutyof care on the part of the defendant. If at all the
judiciarywants to insist upon the establishment of such a principle then tort
lawshouldbe so codified asto makeirpossible for a commonmanto determine
what hisduty at common lawwould be.
Once a generaldutynot to barmothers isdevelopedthere will noJonger
be anyneedto drawattentiontoit. Jurisprudentally speaking'duty' in the sense
of a general prohibition imposed by law not to cause damage carelessly wiD
haveto become implicit in everycaseso that ther will be no need to establish
its existence each time. Once the existence of dutyis presumed the control 011
liability will shiftto other conceptssuchas carelessness, causation and damage
in order to achieve that which had been achieved bywayof
, duty of care.
The scope of applicabiliry of tbe principle of strict liability to water
related disputes involving the government and a private individual or
individualfii'ltuse should be widened. The law laid down in Madras RQilway
Compa"y! 'I that the principle fo Strict liability is inapplicable to statutory
provisions is too primitve. The unchecked policy of the Government in
constructing large dams. reservoirs and canals is a constant threat to the
commonlawwaterrightsof an individual. This necessitates the evolutionof a
new kind of liabiliry which is a complete departure from the kind of strict
liability establishedin Ry/Iln4s v. Fletcher. In this regard the Legislature ~'W
conceptualize the Jaw in accordancewithtbatlaid downM.CMtIhla'l case
Tortious Liability ill Water Law 197

A determination of damage suffered by the injured party is a very


difficult task for the judiciary; therefore, it is essential to codifythe principles
on which the same can beestablished, for example, the physical and material
injury involved, the quantam of damagesvis-a-vis the economic loss incurred,
general and special damages etc. There are certain statutes which embody
compensation provisions but most of the times, the decision taken in
compensating the plaintiff being in the hands of the executive is arbitrarily
exercised. Moreover the decision of the authority in deciding the amount of
compensation to be paid is final which completely ousts the possibility of
challenging the action,if found unjust. It is in suchsituations that the common
law right of an individual to sue tbe executive needs to becodified so that the
individual can question the quantum of compensationif found too less.
Since the government's power to regulate tbe control and the
distribution of water issovereign it can continue its policy of constructinglarge
dams,reservoirsand canals irrespectiveof the loss suffered by the people on
the ground that its action is in public interest. In order to compensate for the
harm caused to certain people the government should float insuranceschemes
so that the loss suffered is publicity distributed and burden is not felt on one
party alone.
Tort law pertaining to injury caused to water rights should be so
codified as torelfcct the general acceptance of ethical, legal, ecological and
social principlesor guidelines. There should be an equitable balance of rights
and obligations betweenthe government and the individual as wellas between
privateindividuals interse. Thisshouldbe especially perceivedfroma financial
standpoint. Tort law should also explicity say what rights and obligations
should apply to privatecitizens, to state and to both.
The Constitutionof India enjoinsa duty both upon the state as well as
the citizen to protect the environment. Article 48A of the Constitution makes
it obligatory for the state to protect and improvethe natural environment and
safeguard the forest and wildlife inthe country", whileArticle51(g)casts a duty
upon" everycitizen to protect and improve the natural environmentincluding
forest,lakes,rivers.... The dutyoflhe state to protect the environment includes
the duty to create lawsso as to protect the same. Therefore, it is obligatoryfor
the state to formulate a legislation on tort lawas soon as possible. Once such
a law is enacted everycitizenis duty bound to complywith it.
For a proper control of water resources scientific and technological
knowledge is required. Knowledge of ecology is equally important. Then
come economicanalysis and economicpriorities. All these aspects should be
reflected in the legalframework which shuld be able to translate such priorities
and decisionsinto action. There should be concern for control at both private
and state level.
The underlying philosophy of the proposed tort legislationshould be
based on the principlethat preventionis one of the fundamental requiremeniS
for the protection of environment. In this waythere is no longer the need to
wait for damage to be suffered in order to be able to intervene against harm
done, environmental or personal. The legislative policy should aim in
preventingtbe creation of nuisances likefloods, water loggingat their sources
rather than subsequently tryingto counteract their effects. Technical progress
198 Water Law in India

must be conceived and devised so as to improve the quality of life at the lowest
in the present day consciousness. This factis of considerable importance for
law, for legal rules must be founded on an ethic composed of values recognised
by the society as its own, that is to say, of social values.
With the increase in the welfare activities of the state there has been an
emergence of mass tort and toxic torts, especially, in cases of Railway accidents,
floods, defective drugs etc. The building of large dams, reservoirs, and canals
is also giving rise to mass tort, To check the wrong being committed to millions
of people a tort law which would check and deter the launching ofsuch gigantic
projects is the need of the hour and if tort law can be codified with respect to
railway and motor accidents why can it not be framed with respect to injury
caused to water rights. ~
Finallv in order 10 make tort law workable for the common man the court
fees must he drastically reduced. This would attract more people to the court
and help the judiciary to develop specific facets of tort law. A bill entitled the
Government (liability in tort) bill-drultcd on the lines recommended by the Law
Commission was tirst introduced in Parliament in 11)65, but could not be
enacted into law. It was re-introduced in 1%7 with modifications suggested in
)A)m hut the bill has not become law. It is suggested that the same be enacted
soon. As far a~ a tort bill for disputes concerning private watcr rights is
concerned none was ever formulated. It is recommended that a legislation
governing pcoplc-,' private rights in water also be enacted,
However, it would be worthwhile to strike a note of caution here. The
idea to codify tori law would no doubt be welcome to bring clarity in the minds
of the people and the judiciary. But the zea1 for codification of tort law
relating to water rights must not result in circumscribing tort law in water tight
compartments. Enough care should be t..ken to make the law clastic so that
newer Iurn»,of torts which may not be in our vision today can he accommodated
within its fold. In other words the principle of ubi jus ibi remedium must
continue to live.
Tortious Liability;n Water Law 199

FOOTNOTES

1. Priyanath Sen, General Principles ofHindu Jurisprudence 336 (1918);


Abdur Rahim, Muhammadan Jurisprudence 360 (1958); Ramaswamy
Iyer, Law of Torts (1975)Appendix 591,592.
2. !bid.
3. Setalved The Common Law in India, 110 (1960) Sir Frederick PUllock
prepared a draft code of torts in India but it was never enacted into laW;
see5IQR 362
4. Setalvad at 225, 226.
S. See illustrations (h) to G) of section 7 of the Easements Act, 1882;. a
riparian owner is a person whose land aouts on a natural stream.
6. Rights which are incidental to the ownership of property. See Chanti
China Venkatareddl v. Kurasani Koti Reddyand another, AIR 1967AP
81; Ramscwak Kazi v. Ramgir Choudhry; AIR 1954Patna 320.
7. Taking into account the vastnessof the research area the present study
has been confined to making an appraisal of Indian cases only.
Important Englishdecisions have been referred to wherever necessary.
8. For example, a case coming within the applicability of the principle of
resipsaloqiuu»: (that is, when an acts speaks for itself) or strict liability.
9. But here also, in certain exceptional cases a breach of the duty to take
care has been sided-tracked by the judiciary. For instance, where a
defendant establishes that he has a customary, prescriptive or an
easementary right to dam up a particular water channel or to use water
from a particular water source for the purpose of irrigation or to
discharge effluent in a certain stream then even if such an act causes
damage to the plaintiff the courts have insisted that without proof of
negligence the defendant cannot be held liable in tort. The rights of
riparian owners are also protected in the same manner. '
10. 1932AC 562.
11. Ramnath v. Kalanath and others, (1950) ILR Nag 510.
12 P.Seetharama),v v. G.Mahalakshamll1a AIR 1958 AP 103; see also,
Pattam Satyabadi v. Kasillath Bisso)'i, AIR 1964Ori 47; Sami UI/ah v.
Mukundlal, AIR 1921 All 182:
13. PSeetharamayya v. G.Mahalakshmamma, see note 12.
14. Gopala Yachendsiva Vam Bahadurv, Secretary ofState, AIR 1915Mad
3n.
LS. AIR 1932 AU 573.
16. AIR 1956MB 209.
17. (1874) 10Ex4(A) in Ibid at 210.
18. (1926) ILR Mad 449.
200 Water Law in India

19. Supra note 11.


20. ILR 31 Mad 169.
21. 6 BLR 529: 28 Bom 472.
22. AIR 1919 Nag-94.
23. AIR 1987 Kar et.
24. (1972) .1 All E R 749: 1972 AC sn.
25. AIR 1917 Pat 44.
26. Kasia Pillai v. Kumaraswami; AIR 1929 Mad 377.
27. Ibid at 339.
28. (1874) 1 AC 364;14BengLR 200.
29. AIR 1936 Mad 202.
30. Supra note 12.
31. Chandrabhun Singh v. Shital Prasad, AIR 1984 MP 4.
32. AIR 1969 Mad 351.
33. 28 ILR Mad 72; see also Ram Odayan v.Subramani« Aiyar' (1907) 31
ILR 171.
34. en. Maduranayakam Pi/lai v. Secretary ofstate, AIR 1936Mad 386.
35. Ibid, see also Secretary ofState v Nageswara lyer, 23AIR Mad. 923.
36. (1877) 3 Cal 776.
37. Secretary ofState v. Kottari Nagayya, AIR 1938Mad 180.
38. Shanmuganc! Goundan v. Venkittaswami Asari , AIR 1936Mad. 203
39. B.M.Gandhi, Low of Tort, 814 (1987).
40. The rule in Rylands v. Fletclrer was first formulated by Blackburn J. in
1866 whichwasapproved by the House of Lords in 1868.
41. (1866) LR exch. 265at 279.
42. See Dhanusao v. Sitabai, ILR 1948 Nag 698; Becharam OwudJuuy v.
PlIllIlbnatlJ Jha (1862)2 Beng LR (Appx) 53; Baldeo Das v. Secretary
of State (1883) PR No.30 of ~883.
43. Supra note 11.
44. Supra note16.
45. Supra note 21.
46. AIR Oudh 121.
47. Supra note 15.
48. RJunanuja OJariIu, SUptrI note 20;sec also BoM.Gandhi. suptrI note 39
al830.
Toniolls liability ill Water Law 201

49. Ibid.
50. Supra note 6.
51. See also Municipal Corporation of City of Bombay v . Vasudeo
Ramchandra 6 BLR 899.
52. (l905)"BLR 713.
53. (1912) 16 CWN 875.
54. See supra note 25; on the other hand, the Karnataka High Court in
Mukcsh Textile Mills, supra note 23, held that by storing large quantities
of molasses on the land the appellant had put the land to a non-natural
use and if a person collects on hi~ land things which are intrinsically
dangerous or might be dangerous, if they ~SC;IPC, he has a liability, if
things so stored escape and cause damage.
55. Coulsen and Forbes: Waters and Land Drainage, (cd. 6) 162 in B.M.
Gandhi. Law of Tons, SUPTQ note 35 at K!9.
56. Bccharam v, Pubnatlt Jha, supra note 42.
57. Mst. Anundmoyee v. Hameedoonisa 1862 Marsh 85.
58. Ramanuj Chatiar; supra note 20; DJuI/lII.\CIO v. Sitabai supra note 42.
59. The principle of non-natural USCI' ha~ also been extended to
governmental action; sec supra section t F.
60. Charan v, Ram
GIIIlI DUll (lS(i5) 2 WR 43; Kadur Bukch v, Ram Nag,
(lH67) 7 \VR ~".
61. Shankar v, LUXIII(I/I AIR 193H Nag 2SIJ.
62. AIR 1987 SC 1)65. In this case there was a leakage of olieum gas from
one of ·the units of Shriram Foods and Fertilizer as a result of which
several persons were affected. The court while disregarding the
principle of strict liability (with its exceptions) as established in Rylands
\'. Flccther held the enterprise liahle solely on the basis that such
hazardous enterprises or inherently hazardous enterprises owe an
absolute and non-delegable duty to the community to ensure that no
harm is caused to the people.
(>,3. In the Bhopal case, on morning of 3rd December 19S4, there was a
leakage of the dcadly Methyl Isocyanate g;IS from a storage tank of the
Union Carbide at Bhopal as a consequence of which mere then 2,5000
human beings were killed, and over two lakhs were affected owing to the
pollution spreading in the air and water.
64. See U. Baxi and Thomas Paul. Muss Disasters and Multinational
liability 6-7, (1986).
65. \V.L. Prosser, Low of Tons 571 (1971).
66. Sec Dhanusao.supra note 42.
67. A.G. v. Pya QualTies, (1957) 2 QB 169.191, per Denning CJ.
68. Ratanlal and Dhirajlal, 17,e Illw ofTOftS 463 (1987).
202 Water Law in India

69. Municipal Board, Lucknowv, Mussammat Ram Dei ILR 1940 Luck 173.
70. Supra note 68,
71. 198 IC 773
72. AIR 1937 Pat 302.
73. Ibid
74. See Galstuun v; Doomia'Lal Seal, ILR 1005 Cal 697. In this case Ute
defendant who was the owner of a shellac factory discharged into the
municipal drain liquid refuse of an offensive character. He was
prevented from doing so, as it interfered with the plaintiff's ordinary
comfort.
75. 159 r.c. 11ll3.
76. See Sarju Prasad's case, supra note 15, where the court held that
whenever any alteration is made from the normal in land the owner of
the land is liable for any damage which may accrue to his neighbour if
there has been want of care by the landowner in making the alteration.
77. 74 I.C. 41.
78. Similarly in Munumal Jaromal's case Supra note 74, though the cases of
Sarju Prasad. supra note 15, and Mohanlal, supra note 20, were cited as
examples of tort of nuisances the judges for some unexplained reason
did not consider the tort to have been committed from the point of view
of nuisance.
79. For example under oridnary law of tort.
80. Benjamin v, SIO", (1874) L.R. 9C.P. 400, 407 per Brctt J., see R.W.M.
Dias, B.S. Markcsinis, TOl1 Law 2,3 (1984).
81. Nobilo v. Waitemata countv (19611 N.Z.L.R. 1064,1067.
82. Supra note 32.
83. Debi PcrshudSil/gll v.l.Sil/gh !LR ISln Cal. 8f,5.
84. State oJ Bombay v, Laxmun, (1952) 62 BLR 106.
85. Apporao v.sicethuranutvu, I LR I')}') M;td 45; PCI1IIIIal v, Ramasami ILR
IRR7 Mad IfI.
86. S.NJain,'Legal Control oJ WaterPollution in India', 11, in S.L.Agarwal
(cd.) Legal Control oJEnvironmental Protection (1980).
87. Liltywhite v, TI1IIIIIICl' (1%7) 3(, L.J. Ch. 525.
88. Salmond, Law aJTuns 23-1 (1%1).
89. The Environment Protection Act, l'JX<i bars civil jurisdiction in respect
of anything done. action taken or order or direction issued by the Central
Government or any authority or officer"unda the Act.
90. See Gayatr! Singh and Madhusudhan Ran (cd.), Tile Environmental
ActivistsHandbook 32. 'Asha Kendra' Publication, 1'JXh.
TOftious Liability in WateT Law 203

91. Ibid at 30.


92. AIR 1986AP 328.
93. 1986 (2) SCALE 284.
94. 1987(2) SCALE 124.
95. AIR 1925 Nag SO.
96. Tripta Batra The Biner fruits of SUgar", The Hindustan Times Sunday
Magazine, Jan 31,1988.
97. R.W.MDias, B.S.Markesinis, superior note 80 at 249
98. For, details see Kiran Bala Jain's paper on 'Right in Water-based
Resources and FIShery, Ferry, Navigation and Hydro-electricity' and
Pradeep Chowdhry's paper on 'Regimeof sanctionsin water Resources
Management Laws'.
99. Supra note n.
100. AIR 1976 Ori 47
101. AliceJacob and S.N.Singh, Law Relating to lnigalion 10 (1972)
102. Ibid
103. "Whereas it is necessaryto make provisionfor the construction main-
tenance and regulationof canals, for the supplyof water therefrom and
for the levy of rates for water so supplied....wsupra note 102at 7.
104. For example,Section 5 of the Northern India Canal and Drainage Act
1873, states that wwhenever it appears expedientto the state government
that the water of any river or stream flowing in a natural cbanne~ or of
any lake, or other natural conditionof stillwater, should be applied or
usedbythe state government for the purpose ofanyexistingor projected
canal or drainage work,the state governmentmay, bynotificationin the
official gazatte, declare that the said water be so applied or used after
a day to be named in the said notification, not being earlier than three
months from the date thereof",
105. See s.6 of the Northern Indian canal and drainage Act, 1873infra.
106. Supra note 101at 8.
107. 41IC24
108. 2 IC325
109. For instance, in Ramachandm v. Narayanasami, ILR 1893 Mad 333,
where the defendant-irrigator, in pursuance of an order of the sub-col-
lector made on a petition filed by him, had opened a new irrigation
channel thereby materially reducing the supply of water necessary for
the cultivation of the plaintifl'sland and causingdamage to him, it wAs
held that the order of the sub-collectorwas in excessof the power he
had for regulatingthe supplyof water for irrigation purposes; in Collec-
tOT of Nasik v Shanj~ 1833 Bom, 209, the government was held not to
204 Water Law in India

have the power to curtailor interfere with the rights of irrigators to the
enjoymentof water without anyjustifiablecause.
110. Supra not 33.
111. !bid.
112. Supra not 101 at 11.
113. See section 18 of the Indian Easements Act, 1882.
114. 86 IC 928.
115. A similar view has been expressed in Stille of Myscn v.Ramchandran
Gounda and another, AIR 1m Bom.93. In this case the state govern-
ment constructed a reservoirfor facilitating the supplyof drinkingwater
to the residents of a town. Damage was caused to the adjoining land of
the plaintiff by overflow of the reservoir for a channel to carry the
overflow of water from the reservoir had not been completed by the
state. The court held that the construction of the reservoir could not be
considered as an act of exerciseof sovereignfunctionsand the state was
held liable to pay damages to the plaintiff.
116. Per Blackburnj., in Mersey Docks T1USIee.s V.Gibbs, (1866)LR IHL 93,
112; Hammersmith Rly v. BTtJnd, (1869) LR, HL 171; East Fremanlle
Corporation v. Annois, (1962) AC 213; Quebec Ry v. VandIy, (1920) AC
662.
117. Allen v. Gulf Oil Refinery ue; (1981) 1 All BR 353 (HL) 365 (Lord
Roskill)
118. ManchestorCorpn. v.Farnworth, (1930) AC 171(HL).
119. (1911) 35 BLR 412: 12IC884.
120. Bom. Act II of 1901.
121. (1878) 3 App Cas 430at 455.
122. Gaekwar Sarlcar v Gandhi KachTtlbai on appeal, ILR 1903 BOM 344.
123. Shatanghan Das Coomar v. Hokha Shawtal ILR 1889Cal 159.
124. 21 IC 847 ILR : 38 Bom 116.
125. (1902)4 Bom LR 1914.
126. Gaekwar Sarlcar v. Kachrabai, (1900) 280m LR 357;ILR 25 Bom 243.
127. AIR 1939All 375.
128. AlR 1962All 211.
129. See also Maya Ram v.Municipal Committee, IAh, 121IC 1930.
130. 18 I.C 816;(1913) 88 PR 1913.
131. See Municipality ofHub/is, supra not 119.
132. Supra not 28.
Tortious Liability in Water Law 205

133. Historicallyspeaking, the public duty of maintaining ancient tanks and


constructing newones wasoriginallytaken by the government of India,
whichupon obtainingIndependence had devolved upon the Zamindars
the defendant being one of the Zamindars. The court therefore found
that the "rights and liabilities of the defendant were much more
analogous to those persons or'corporations on whom statutory powers
have been conferred and statutory duties conferred", and that the duty
of the defendant to maintainthe tank, was similarto that of the plaintiff's
to maintain their railway, Ibid.
134. AIR 1932Sind 131.
135. (1894)70 LT 547.
136. AIR 1982AP 118.
137. Surprisingly, no reference was made to the case of State of Gujarat v.
PatelMohanbai Mathwbai, (1974) 15Guj LR 259, which encompassed
a similar situation. In that case the court held that "No one has a right
to use his own land in such a wayas to be a misuse to his neighbour and
that" it is the defendant's duty to prevent anything escaping from his
artificial construction and if care is not taken to prevent water from
seeping and percolating through the construction into the neighbour's
land which cause damage the government must be held liable in tort;
see also Secretary ofstatefor India v R.Ram and other,supra note 114;
where the Government was held responsible for the overflow of water
on the principle of strict liability.
138. 1902A.C. 381 (393):86 LT 457.
139. Supra note 33.
140. Supra note 28.
141. AIR 1940Sind 254: 19211C494.
142. The section provides that where a fact is speciallywithin the knowledge
of a party the burden of proving that fact is on him.
143. Supra note 135.
144. H.R.W. Wade Administrative Law 686-687 (1982); L Nevgille Brown
and J.F. Garner, French AdministraliveLaw 108-109 (1983).
145. See Sections 18 and 2 of the Easements Act, 1882.
146. MLAmarKaurv. Secretary ofstate, AIR 1939 Lab 583.
147. Supra note 127.
148. (1968) ILR 1 Punj.134.
149. AIR 1980S.C. 1622.
150. Supra note 28.
151. Supra note 62.
152. See Ratlam; Ramchandran, supra, note 149and note 115respectively.
206 Water Law in India

153. Liabilityof state in Tort, 1956.


154. Ibid at 36.
155. See Commissioners fortheport ofCalCUlta and Corporation ofCalcutta,
94 LA Vol at 36-
156. SUpnI note 36.
157. SuprtI note 28.Similarly in Lo1cnfIJh Samal v Guru Prasad Panda, AIR
1963Ori 21 the digging of a tank on one;s own land is considered as a
normal use of land and if the bank of the tank is washed away by
extraordinary flood caused by heavyfaU of rain it is not the fault of the
defendant but simplyan act of vis major.
158. Supra note 22.
159. IR 1928 Mad 139.
160. Supra note 51.
161. AIR 1939Pat 303.
162. 118IC 216.
163. (1865) 3H. & C.596: 13 L.T.l48.
164. SUprtlnole 52
165. AIR 1924Lab. 192.
166. The period of limitationunder this Act is one yearfrom the time the act
or omissiontakes place.
167. AIR 1965 SC 17.
168. S-6 Power of Canal Officer: At any time after the day so named, any
Canal Officer. acting under the orders of the state government in this
behalf, mayenter on any land, remove any obstructions and may close
any channels,do any other things necessaryfor such application or use
of the said water".
S.15: Power to enter for ripairs and to prevent accident: In case of any
accident happening or being apprehended to a Canal, any Divisional
canal Officer or any person acting under his general or special orders
in this behalf mayenter upon any land adjacent to such canal, and may
execute all workswhichmaybe necessaryfor the purpose of repairing
or preventingsuch accidents.
In everysuch case,such canal officeror person shall tender compensa-
tion to the proprietors or occupiersof the said lands for aU damagedone
to the same. If such tender is nol accepted the canal officer shall refer
the matter to the collector, who shall proceed to award compensation
for the damageas thoughthe state governmenthad directed the occupa-
tion of the lands under section 43 of the Land Acquisition Act, 1870.
UmitationAct 1908 Descriptionofsuit,Period ofLimitation,Time from
whichperiod begins to run.
Tortious Liability in Water Law 207

Art. 2 For Compensationfor doing or for omittingto do an act alleged


to be in pursuance of anyenactment in force for the time beingin India.
Art. 36 For Compensation for any malfeasance, misfeasance or non-
feasanceindependentof contract and not hereinspeciallyprovidedfor.,
Two years (now one year), When the malfeasance, misfeasance or
non-feasance takes place.
169. U1lC. 500
170. Supra note 61.
171. AIR 1920 80m 1JJ7.
172. Supra note 23.
173. See Arts. 84, 85 of the Limitation Act, 1963. According to s.22of the
Act for a continuingwronga fresh period of limitationbeginsto run at
everymovement during whichthe tort continues. In case of a suit for
which there is no limitation period provided in the schedule it is three
years from the time the right to sue accrues, See s. 113of the Act.
174. Supra note 28.
175. Supra note 62.

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