Whether gross negligence in not maintaining particular level of water in the dam by the respondents; that has resulted into damage and destruction to the plantation of the appellants, causing loss of livelihood, could be said to be an ‘Act of God’?
Water in the Dam
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
(A.K. SIKRI) AND (R.K. AGRAWAL) JJ.
MAY 10, 2016
Civil Appeal No. 1866 of 2016
CIVIL APPEAL NO. 1866 OF 2016
VOHRA SADIKBHAI RAJAKBHAI & ORS. …..APPELLANT(S)
STATE OF GUJARAT & ORS. …..RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
The essence of the issue that needs to be decided in the instant appeal is captured by the appellants by formulating the following substantial question of law; though the same is not appropriately framed:
“Whether gross negligence in not maintaining particular level of water in the dam by the respondents; that has resulted into damage and destruction to the plantation of the appellants, causing loss of livelihood, could be said to be an ‘Act of God’?”
2) It so happened that the respondents had constructed and maintained a dam. 60,000 cusecs of water from this dam was released, which flooded the land of the appellants and destroyed the plantation therein. As per the respondents, the water had to be released from the dam as it reached alarming level because of heavy rains and non-release would have breached the dam. The action was, thus, taken in public interest and it was occasioned because of the rains, which was an act of God. The appellants, on the other hand, contend that it was sheer negligence on the part of the respondents in not maintaining low level of the water keeping in mind the ensuing monsoon season and, therefore, the damage which the appellants have suffered has direct nexus or causal connection with the aforesaid act of negligence and it cannot be attributed to the rains. It is, thus, pleaded that the respondents cannot term it as an act of God and excuse themselves from the tortious liability.
3) There is hardly any dispute on the factual matrix under which the aforesaid issue has cropped up for determination.
4) The appellants herein are the owners of land, which is proximate to the Mazum dam that has been built over river Mazum. They had grown hybrid berry trees over the said land which, they claim, belong to their ancestors and were earning their livelihood from the fruits of the said trees. Respondents have built a dam over River Mazum in the nearby area for supplying water for irrigational purpose and thereby to earn revenue. In June 1997, there were heavy rains in the said area which resulted in overflowing of the water in the dam. In order to save the dam, the respondents released nearly 60,000 cusecs of water. This release of water flooded the fields of the appellants. With the submerging of the land of the appellants, all the trees standing on the land got uprooted resulting in destroying the whole cultivation of hybrid berries. According to the appellants, there entire 8 bighas of agricultural land became part of the river Mazum and the only source of livelihood was lost.
5) The appellants claimed compensation for the damage done to the trees standing on the said land by serving legal notice to the respondents under Section 80 of the Code of Civil Procedure, 1908. Damages and compensation to the extent of ₹21,50,000 was claimed alleging that it happened due to gross negligence and lack of administration on the part of the respondents. The case set up in the notice was that the respondents had stored more than the retention capacity of the water in the dam during the month of June 1997 despite knowing fully well that during the ensuing rainy season there would be more flow of water in the dam. This act on the part of the respondents was termed as an act of gross negligence and lack of good administration. No reply to the notice was given by the respondents, which forced the appellants to file a civil suit in April 1998 against the respondents for a compensation of ₹21,50,000.
6) The trial court appointed Court Commissioners to verify the position of the agricultural land of the appellants and report the ground situation to the Court. The team of Court Commissioners, known as panchas, who visited the site, submitted their report for inspection confirming the submergence of the agricultural fields of the appellants. They also reported that due to this submergence, the trees of the appellants grown on the said land were uprooted and were lying amidst the mud and sand brought by the river water. In this report, they also mentioned that as many as 1500 boar trees were uprooted and washed away due to the said floods. Several photographs were also annexed with the report in respect of the aforesaid inspection carried out by the Court Commissioners.
7) Respondents contested the suit inter alia on the ground that the place where the said dam, known as Mazum dam Water Scheme, is constructed was situated nearby the village Volva of Modasa, which is 33 kms. away from the place of the appellants. It was further stated that due to heavy rains the water level of the dam had gone abnormally high and, therefore, there was no option but to release further water flow from the dam in the river to control the floods. For this purpose, advance information was given to the offices such as the Head of Departments, Revenue Authorities, etc. It was also stated that during the monsoon season at what level the capacity of the water is to be filled in the Mazum dam is decided in advance. But in the eventuality of the heavy rain fall at the upper side areas, to maintain the level of the water dam, the additional water received from the upper areas are released into the river by opening the doors of the dam so that any damage to the dam can be prevented. This decision of how much water has to be released into the river is taken by the Competent Officer. On that basis, it was pleaded that no compensation was payable as the respondents were forced to take the decision to avert natural calamity and this decision was occasioned because of excessive rain, which was an act of God.
8) On the basis of pleadings, following issues were framed by the trial court: