1. The Appeal arises out of a suit brought to recover Rupees 60,000 by Nagi Reddy for damage sustained by him as a result of percolation of water in branch canal ten under Nagarajunsagar project. For that canal, the State had acquired Ac. 29-59 cents in Thakkalapadu Village including Ac. 0-77 cents owned by Nagi Reddi (the landholder) in Survey No. 381/!-2. The acquired land was taken possession of on August 10,1963. The reference Court under the Land Acquisition Act of 1894 awarded him on Sept. 23, 1970 for the land and a well, compensation amount of Rs. 39,611-15 ps. The claim of the landholder was for Rs. 60,000 before the reference court for likely loss of orchard in one part of the land in S. No. 381/A-2. He was directed to seek relief in a civil court. The instant suit was laid on Nov. 15, 1971 for loss of one hundred and thirty five mango tree, fourteen lemon trees, fourtyfive orange trees, twenty one sapota trees, twenty two batavia trees, thirty two soapnut trees, seven jackfruit trees, one dabba tree and one usirika tree. The landholder averred his orchard was damaged due to faulty laying of the tenth canal across his land by the state Government and his two hundred and eighty five fruit bearing trees withered. The state Government denied liability and contended, the tenth canal was constructed as per specifications prescribed for irrigation canals. There was no negligence in laying of the tenth canal. Any loss occasioned to the landholder, was not due to any defect in laying the canal.
2. The subordinate Judge, Narasaraopet on October 10, 1974 held there was no expert evidence to show what caused the damage to two hundred and eighty five trees. The canal was not deceptively laid. As of fact, the canal water, it was held, did not percolate into the land in the orchard.
3. The evidence adduced by the landholder disclosed the orchard was leased to P. Vykuntam of Thakkellapadu in one year for Rs. 13,575 and in another year, to K. Yohan of the same village it was leased for Rs. 15,180. The scribe of the two leases, B. Ramula was examined. The village Headman, I. Kotireddi deposed the orchard was planted in 1959. The claim of damages by the landholder of Rs. 60,000 on the evidence was recorded not excessive. The suit, however, was dismissed. In this appeal, the landholder seeks to review the evidence and contends that the negligence of the State Government on facts and evidence of the case is established'.
4. The evidence in the case indicates the branch canal ten Major 42-D and R. M. 23/6+165 to 24/3 was laid over the surface of the ground without any excavation. The terrain shows the lie of the orchard was from south to north. The canal covered 224-30 to 225-70 (MSL). The depth of the canal ws 7: The bed width is 45 free board 3'. The soil is black cotton and light: the exists a borrow pit 200' wide along side the canal up to 100'. The total land in survey No. 318/1-2 measured Ac. 6-14 cents. The canal covered Ac. 0.77 cents. The land served after acquisition was of Ac. 5.37 cents and in that Ac. 4,37 cents, the land was covered by two hundred and eighty five trees.
5. The supervisor-in-charge of the maintenance of the tenth canal who was in charge from June 15, 1974 deposed the full water level in the canal is 6' 6' There was no leakage of water on ground. The canals were so laid that cut of trenches at the bottom was unnecessary to prevent percolation. The Executive Engineer of Nagarjunasagar Division at Sattenapalli deposed that there was no seepage at the left side of the Guntur branch of canal to the side of the land in Survey No. 381. The canals, he said, were constructed as per specifications in the book of W. M. Ellis. The tenth canal was 'localised' in 1974. In
his opinion inundation of orchard land by the canal water was ruled out. He said, plasticty of soil prevented seepage and percolation. The Executive Engineer of canals Division No. 2 deposed tenth Branch Canal was constructed as 'prescribed' by the State. There was no necesstity for cut off bunds and key trenches. The canal plan ws drawn to specifications. The plan was approved by the Superintending Engineer of the Project.
6. The son of the landholder deposed that in June 1967, water was let out in the canal. That oranges and lemon trees withered by December 1968. Other trees died by March, 1968. The joint Director of the Department of Agriculture in the evidence said, on January 19, 1963 he was asked to inspect the orchard by Sub-Collector, Land Acquisition. He submitted report on March 19, 1963. In the report, he indicated that due to water in canal, sub-soil level of water 'will be raised'. The fruit bearing trees in the orchard are likely to wither, therefore, 'a sympathetic consideration' in 'fixing the compensation for the fruit trees' was suggested by him. A mango tree, the Joint Director said, would survive for seventy five years ordinarily and any other fruit bearing tree to survive the ground water level should e below ten feet of the ground level.
7. In this court, the plaint was amended to contend that tenth canal was not cement 'lined'. If the canal was to have been cemented (lined) at the floor as 'prescribed', the loss of trees would have been averted.
A retired Executive Engineer, B. H. L. Narasimha Rao was examined in this court who said that cement lining was necessary and was not done to the tenth canal.. The level of seepage water on inspection in the tenth canal is high: The trees in question 'died' due to die-back disease. In his opinion, the water table in an orchard should be lower by eight to ten feet.
8. It is argued by the landholder that the canal in question was not cemented, therefore, water escaped due to seepage and percolation into the orchard. This phenomenon, it was argued occurred due to defects I laying of the canal. The trees, therefore, wilted and withered due to excess absorption of water. In support of this plea. Indian Practical Civil Engineer's Hand Book was relied with reference to water-logging (at pages 17 and 104) to show the level of water in an orchard should be five feet from surface. Another book, Practical Civil Engineer's Handbook by Khanna was relied to show the soil conditions in and orchard. The book of Civil Engineering Manual by W. E. Eills has referred that 'seepage' and 'soakage' are expressions frequently used to denote percolation (para 106). Lawson's text Book of Botony of Birbal Sahni was cited to show that plants decay when roots absorb excess water.
9. In this case from the above evidence, we cannot hold that for the tenth canal constructed under Nagarjunasagar Project there is any requirement 'prescribed' in any specification to cement or line the canals. In Engineering Science, it is not proved as of necessity, that the floor of the canal of its bunds have to be 'lined' or cemented. The evidence of Headman of Thakkelapadu shows in 1959, two hundred and eighty five fruit bearing trees were planted. In June 1967, water was let out for irrigation in tenth canal. By end of Dec. 1968, two hundred and eighty five trees have died. The decay of trees in the orchard resulted due to absorption of excess water by the roots of the tree.
10. The lower court held there was no expert evidence in proof of that fact. But we are satisfied from the evidence of the Joint Director of Agriculture, the roots of trees absorbed excess of water which caused their decay and finally they withered. We hasten to record that in the Standard Specifications for Canals prescribed in the book of W. M. Ellis (This is the book relied on by the contestants) in laying canals, the State Government are not shown to have violated any specifications. Negligence on the part of the authorities of the State in not having cemented the floor or embankment of the canal is not established either as of necessity in canal construction, or to have 'prescribed' for laying canals by any authority.
11. In the instant case, the State Government in their answer to the suit, did not state that they, in their exercise of sovereign rights, have laid canals and in doing so, cannot be held liable for any loss sustained by a citizen. The question, therefore, in the absence of that plea is to be considered from the stand point of general principles of negligence. The question of negligence in the case does arise, though, the pleadings leave much to be desired. By some of the authors on the subject of negligence, it is stated the law of negligence emanated from the case in Fletcher V. Rylands ((1866) LR 1 Exch 265: (and in appeal) (1868) LR 3 HL 330). In our view, as held in some cases, the law on the subject is based on the maxim 'sicutere tuo ut alinenum non leades' (so use your property as not to harm others). In the oft cited case of Fletcher V. Rylands, a mill owner constructed a reservoir to collect water for use of the mill. Under the reservoir, there was a coal mine which was abandoned. The existence of the mine was not known to the miller or to anybody. When water was stored, it percolated down to the underground workings through some odd shaft and flooded the neighborhood. The question was whether the miller was negligent in constructing the reservoir. His neighbor attributed the reservoir. His neighbor attributed negligence to him for it was argued that the miller was bound to keep the water safely within his precinct. If water escaped to the adjoining lands, caused damage, the miller, it was urged, was negligent. This case was first heard by Exchequer Chamber on appeal, Blackburn J. was one of the Judges in Appeal Court. What he said I the appeal was approved by the House of Lords. It was decided in that case for the first time, if water escaped as a consequence of vis major, the miller was not liable for damages. The question next considered on the facts of the case was whether there was a default on the part of the miller and it was held the shaft of the abandoned mill in the underground was not known to the miller. It was reasonably not expected of the miller to have discovered he shaft. The other exceptions on this part of the subject, whether by enemies of the States or by the acts of agent or by third parties, what follows, if damage is caused, came to be decided not in Fletcher V. Rylands but in later cases.
12. In Nichols V. Marsland, (1875 LR 10 Ex 255 (and in appeal) (1876) 2 Ex D1), ornamental pools were constructed and large quantities of water was stored. Due to an unprecedented rainfall, the water overflowed. The rainfall was of such a magnitude, it was held that it could not have been reasonably anticipated. The pools bursed and water inundated the adjoining lands. The decision in the case shows there was no negligence in construction or maintenance for the rain was of such magnitude that it could not be anticipated. A similar decision was reached by the Madras High Court in Sankaravaidivelu
Pillai V. secretary of State for India in Council (1905) ILR 28 Mad 72 where a calingula was constructed by the Government in 1892 and due to abnormal floods in 1895, the land of a ryot was inundated. It was held that it was no part of the Government's liability to have anticipated such heavy rains. The decision in Nichols V. Marsland is considered first exception. The second exception to the rule I Fletcher V. Rylands is e numerated as resulting from King's enemies or in war like operations. If water escapes from a reservoir and caused damage due to an earthquake, it was held that it would be contrary to reasoning and justice that there was negligence is another exception. There is the case in Box V. Jubb (1879-4 Ex D 76) where water of a reservoir through the sudden emptying of another reservoir, the water overflowed and damage was done to the lands of the neighbor. The case for the overflow was considered and it was held that the owner of the reservoir could not have anticipated and it was laid down that the law did not require to construct a reservoir leading to meet any amount of pressure which the wrongful act of a third person may impose. This third person's negligence is another exception which was enumerated in latter cases I the subject of negligence.
13. In India, the general rules in Fletcher V. Rylands (1866-LR 1 Exch 265) is accepted, though in some old cases, the principle in the case was considered to be modified in application to the Indian conditions. The law, however, is not peculiar to reservoirs. The case in Eastern South African Telegraph Companies (1902 AC 381 (393)), general rules of negligence are restated by the House of Lords: 'a man cannot increase the liabilities of his neighbour by applying his own property to special uses whether for business or for pleasure'. 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 to be asked is 'how could people live if there was no water' in tanks and reservoirs. Enormous benefits follows from dams and irrigation is obvious and without them, the land would be wilderness,the country would be a desert. In Sankaravadivelu Pillai V. Secretary of State for India in Council, it was held that it is one of the important functions of the Government in this country to construct new works of irrigation and maintain old ones according to means and circumstances. The position of the Government was considered to the same effect in the case of the Madras Railway Company V. Zamindar of Karvatenagarum (1873-74) 1 Ind App 364 (PC). In Canadian Pacific Railway Company V. Parke (1899 AC 535), the law was held to be the same in common wealth countries by Lord Watson and formulated three principles which in this case, it is not necessary to be enuciated. One of the principles formulated is found applied in Sankaravadivelu Pillai V. Secretary of State referred to earlier, where it is observed 'the rights of Government in connection with the distribution of water, do not included a right to flood a man's land because in the opinion of Government, the erection of a work which has this effect is desirable in connection with the general distribution of water from the public benefit'.
14. In the instant case, it is not shown that the Government is required to cement the floor and it is also not proved that there is any negligence on the part of the State Government in laying of the tenth canal under Nagarjunasagar project. The State, therefore, in law, is not required to reimburse Rs. 60,000 the loss which was sustained by the landholder.
15. The appeal, therefore, fails and it is accordingly dismissed. No costs.
16. Appeal dismissed.