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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
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
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
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.
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
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.
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«
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
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.
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
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
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
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
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