1. This is a second appeal from a decree of the District Judge of Ahmedabad, dismissing a suit brought by the appellant against the Ahmedabad Municipality in the following circumstances :-
2. The appellant had a shop at Ahmedabad. On the night of June 20-21, 1929, the adjoining house caught fire and the fire spread to the appellant's house and it was destroyed. There was some dispute at the trial as to the time when the fire broke out, the time of the arrival of the fire engines and the time when water was available to put out the fire. We are not now concerned with these questions.
3. The District Judge has found as a fact that there was no delay or negligence on the part of the Municipal servants either in the fire brigade department or in the water supply department. He found, agreeing with the trial Court, that the Municipality was guilty of negligence, but' the negligence consisted in this, that shortly before that time an order had been passed, to prevent waste of water, as it appears, that the water supply should be cut off from 10 p.m. at night until 5 a.m. in the morning. It is common ground that the spreading of the fire to the plaintiff's shop and the damage caused to it were due to the fact that water could not be obtained from the mains for about hall an hour after the arrival of the fire engines.
4. The trial Judge held that the Municipality had been guilty of a breach of the duty imposed upon it by Section 68(1)(d) of the Bombay Municipal Boroughs Act, 1925, that is, the duty of making reasonable and adequate provision for extinguishing fires and protecting life and property when fires occur within the municipal limits. He took the view that this breach of duty gave the plaintiff who had been damaged thereby a right of bringing an action for damages. He relied on Dholka Town Municipality v. Desaibhai : AIR1914Bom198(2) for the proposition that the exemption from liability of local bodies on the ground of non-feasance is confined to neglect of highways. He thought that there was no general rule that a public or statutory authority cannot be sued for non-feasance. On appeal the learned District Judge disagreed with this view. He found, as I have said, that the Municipality had negligently failed in its duty to make an adequate and reasonable provision for extinguishing fire, but he also held that it was not liable to make good the loss because it was a case of non-feasance and not misfeasance, and therefore, according to his view of the law no action lay. In our opinion the view of the law taken by the learned District Judge is correct.
5. In Dholka Town Municipality v. Desaibhai the facts were that a drainage channel had been made by Government for the convenience of the Municipality of Dholka. Owing to some default on the part of the Municipality the water instead of flowing along the channel so made flowed across the road into the plaintiff's field and caused damage to the plaintiff. The plaintiff then sued to recover damages and the Municipality contended that they were not liable inasmuch as, the damage arose from non-feasance and not from misfeasance. This contention was overruled. The judgment of Scott C.J. in the appeal is a short one, All he says on the point of the liability of the Municipality is this (p. 1036) :-
It is contended on behalf of the appellant that the Municipality are under no liability in respect of the damage caused to the plaintiff, because it is a matter arising from non-feasance and not from mis-feasance. But the exemption from liability of local bodies on the ground of non-feasance is confined to neglect of highways, and does not apply to drainage works carried out by the local bodies for their convenience, which they are bound to maintain in a proper state of repairs so that they shall not be a nuisance to the neighbouring owners. This appears from the judgments of the Privy Council in Borough of Bathurst v. Macphersorn (1879) 4 App. Cas. 256 and Municipality of Pictou v. Geldert (1893) A.C. 524.
The facts in Borough of Bathurst v. Macpherson were that a Municipal body which was responsible for the roads had failed to keep them in repairs with the result that a hole was caused in the highway and the plaintiff in that case who was riding on horse-back on the highway fell into the hole and was injured. It was held by the Privy Council that the local body by their negligence had created a nuisance in the highway for which they would be liable apart from their statutory duty. Consequently the local body was not only liable to an indictment for the nuisance but was also liable to an action by the plaintiff who had sustained direct and particular injury. Therefore, as was pointed out in a later case, Municipality of Pictou v. Geidert, in which the Bathurst case was considered, it was really not a case of non-feasance but of misfeasance amounting to a public nuisance. That being so, the law applicable was the law governing public nuisances. The facts in Dholka Town Municipality v. Desaibhai : AIR1914Bom198(2) were somewhat similar, and the same principle could be applied.
6. In Municipality of Pictou v. Geldert (1893) A.C. 524 the proposition laid down by the Privy Council was that ' Public Corporations to which an obligation to keep public roads and bridges in repairs has been transferred are not liable to an action in respect of mere non-feasance, unless the legislature has shewn an intention to impose such liability upon them.' In that case an action was brought for damages for the injuries caused by the neglect of the Municipality to repair the bridge. It was held that this was mere non-feasance and that no action lay.
7. It is clear, therefore, from the perusal of the authorities on which the Court relied in Dholka Town Municipality v. Desaibhai, that the judgment went further than was necessary and probably further than was intended in saying that the exemption from the liability of local bodies on the ground of non-feasance is confined to neglect of highways. What was really decided in that case was that where there has been non-feasance which has resulted in a public nuisance, then an action will lie on proof of particular damage.
8. The learned advocate who appears for the appellant has argued that in this case also the Municipality have really been guilty of misfeasance because they had not merely neglected to keep the water mains in order. In fact they had not neglected to do that at all. They did a positive act, that is, the cutting off of the water, and that it is contended should be regarded as misfeasance which brings the case within the rule laid down in the Bathurst case and Dholka Town Municipality v. Desaibhai. The facts, however, are not at all similar, and unless we were to adopt a definition of a public nuisance which would appear unreasonable and far-fetched and for which no authority has been cited, it would be impossible to say that the failure to provide an adequate water supply, or to put it the other way, the cutting off of the water supply for certain hours of the night, amounts, to a public nuisance. It should be noted that there was a shortage of water at the time and the Municipality in making the orders complained of acted on the advice of a Government expert.
9. A case in which the facts were very similar is Atkinson v. Newcastle Waterworks Co. (1877) 2 Exch. D. 441. That was a case in which a Waterworks Company had undertaken to supply a town with water and had incidentally undertaken certain special obligations as to the provision of fire plugs and as to keeping the water pipes connected with the fire plugs charged with water at a certain pressure. That is to say, the Waterworks Company in that case had undertaken a duty similar to that which the Municipality undertakes under Section 68 of the Bombay Municipal Boroughs Act, 1925. In that case as in the present case a fire broke out. The plaintiff had a house within the Company's limits and near one of the fire plugs ; but the pipes connected with the plug were not charged with the pressure required under the agreement and in consequence of this as the supply of water was insufficient the house was burnt down. It was held that the plaintiff had no right of action. It is true that the decision of the Court turned partly on the fact that it was a private Company and also on the fact that there was a provision for a penalty in that case which was regarded as indicating the intention of the legislature that there should be no right of action. Under the Bombay Municipal Boroughs Act, 1925, no penalty is provided. There is only Section 218 which provides machinery for getting the statutory duty performed by an application to the Commissioner. Nevertheless, as the learned advocate for the appellant himself appeared to admit, the case can hardly be distinguished on those grounds. Lord Cairns L.C. at page 445 of the report says :-
Now, a priori, it certainly appears a startling thing to say that a company undertaking; to supply a town like Newcastle with water, would not only be willing to be put under this parliamentary duty to supply gratuitously for the purpose of extinguishing fire an unlimited quantity of water at a certain pressure, and to be subjected to penalties for the non-performance of that duty, but would further be willing in their contract with parliament to subject themselves to the liability to actions by any number of house-holders who might happen to have their houses burnt down in consequence ; and it is, a priori, equally improbable that parliament would think it a necessary or reasonable bargain to make. In the one case the undertakers would know beforehand what they had to meet as the consequence of their neglect, they would come under definite penalties ; in the other they would virtually become gratuitous insurers of the safety from fire, so far as water is capable of producing that safety, of all the houses within the district over which their powers were to extend.
The result of holding that an action lies in the present case would be that the Municipality would be placed in the position of being gratuitous insurers of the safety of all the houses within the Municipal limits. It seems extremely improbable that that should have been intended by the legislature.
10. In an old English case, Couck v. Steel (1854) 23 L.J. (Q.B.) 121 a broad general proposition had been laid down that wherever a statutory duty is created, any person, who can show that he has sustained injuries from the non-performance of that duty, can bring an action for damages against the person on whom the duty is imposed. But all the learned Judges who decided Atkinson v. Newcastle Waterworks Co. (1877) 2 Exch. D. 441 disapproved that proposition.
11. On the other hand the learned advocate for the appellant has not been able to cite any case which really supports his view that the action of the Municipality in cutting off the water can be regarded as a misfeasance of a kind which gives the plaintiff a right of action for damages.
12. The appeal is dismissed with costs.
13. I agree.