Skip to content


Municipal Board, Kheri Vs. Ram Bharosey and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal Nos. 168, 169, 189 and 196 of 1954
Judge
Reported inAIR1961All430
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100
AppellantMunicipal Board, Kheri
RespondentRam Bharosey and ors.
Appellant AdvocateSaraswati Prasad and ;R.N. Misra, Advs.
Respondent AdvocateShafiqurrahman, Adv.
Excerpt:
.....all the four appeals filed two suits in the court of the munsif, kheri, for damages against sardar teja singh and the municipal board of kheri, hereinafter referred to as the board, on the allegation that the board illegally in the teeth of their own bye-laws and in spite of his protests granted a licence to sardar teja singh to put up a flour mill adjacent to his house with the result that as a consequence of vibrations produced by the mill his house got badly damaged. in clerk and lindsell's well-known treatise on torts, 1954 edition, at page 178, in paragraph 276 the statement of law on the question of remoteness of damages and cause of action has been stated in the following words :the most difficult question at the present day concerning the law of damage in tort is the problem of..........all the four appeals filed two suits in the court of the munsif, kheri, for damages against sardar teja singh and the municipal board of kheri, hereinafter referred to as the board, on the allegation that the board illegally in the teeth of their own bye-laws and in spite of his protests granted a licence to sardar teja singh to put up a flour mill adjacent to his house with the result that as a consequence of vibrations produced by the mill his house got badly damaged. the necessity of two suits arose because the suit allegations were that damage had been caused to the building of ram bharosey during two different periods. both the suits were tried together. the trial court (the learned munsif) dismissed both the suits whereupon ram bharosey respondent filed appeals' in the court of the.....
Judgment:

Jagdish Sahai, J.

1. These are four connected second civil appeals. It is not necessary to give in details the facts of the cases because the question that arises is one of law and enumeration of many facts is not required for the decision of the same.

2. Ram Bharosey who is the respondent in all the four appeals filed two suits in the Court of the Munsif, Kheri, for damages against Sardar Teja Singh and the Municipal Board of Kheri, hereinafter referred to as the Board, on the allegation that the Board illegally in the teeth of their own bye-laws and in spite of his protests granted a licence to Sardar Teja Singh to put up a flour mill adjacent to his house with the result that as a consequence of vibrations produced by the mill his house got badly damaged.

The necessity of two suits arose because the suit allegations were that damage had been caused to the building of Ram Bharosey during two different periods. Both the suits were tried together. The trial court (the learned Munsif) dismissed both the suits whereupon Ram Bharosey respondent filed appeals' in the Court of the learned District Judge, Kheri, Those appeals were allowed by the learned Civil and Sessions Judge, Kheri and decrees were passed in the two suits for damages both against Sardar Teja Singh as also against the Board.

As there were two suits, there were two appeals before the first appellate court and in this Court four appeals have been filed -- two on behalf of Sardar Teja Singh and the other two on behalf of the Board. The learned Civil and Sessions Judge has recorded a categorical finding of fact that due to the vibrations produced by the working of the flour mill the house of Ram Bharosey was damaged. This finding of fact cannot be reversed in a second appeal being based on evidence.

All the four appeals have been heard together. I have heard Mr. Saraswati Prasad on behalf of the Board, in respect of Second Appeals Nos. 168 and 169 of 1954 and Mr. R. N. Misra in Second Appeals Nos. 189 and 196 of 1954, which have been filed on behalf of Sardar Teja Singh. Nothing has been pointed out to me by Mr. Misra on the basis of which the findings of fact recorded by the learned Civil and Sessioas Judge, Kheri can be reversed. So long as those findings are based on evidence even though they be assumed to be erroueous they are sacred.

It is not necessary to cite authorities for the proposition that even an erroneous or a perverse finding of fact cannot be disturbed in a second appeal so long as it is based on evidence. The submissions which were sought to be made on be-half of Sardar Teja Singh before me were those of facts. No question of law was either pressed before me or was raised in the grounds of appeal: Consequently I see no merits in the appeals Nos. 189 and 196 of 1954 and they are in my judgment liable to be dismissed.

So far as the appeals filed by the Board are concerned, the question of law that arises is : can a suit for damages be decreed against them Only because the Board granted a licence to Sardar Teja Singh to erect a flour mill. In other words, is it a tortuous act on the part of the Board for which the Board has incurred a liability for damages. Several cases have been cited both for the Municipal Board as also against it by the learned counsel for the parties. It is not necessary to consider those cases because admittedly they have got no bearing on the question that is before us.

The learned counsel had to candidly state that they had no authority with them direct on the point. The case has therefore got to be decided on the basis of first impressions. It is clear that the relevant bye-law prohibited the Board from granting a licence to Sardar Teja Singh for erecting a flour mill because the flour mill was sought to be erect-ed within a few yards of the residential quarters including that of the respondent Ram Bharosey. It is common ground that the Municipal Board did give the licence in the teeth of their own bye-law and therefore the only question that requires consideration is whether by doing so they have incurred a liability to pay damages.

It is a basic principle which governs all actions for torts that if the result that has followed the act is far too remote, there is no liability for any damages quite apart from the question of quantum of damages. In Clerk and Lindsell's well-known treatise on Torts, 1954 Edition, at page 178, in paragraph 276 the statement of law on the question of remoteness of damages and cause of action has been stated in the following words :

'The most difficult question at the present day concerning the law of damage in tort is the problem of remoteness of damage, which cannot be regarded as settled. The difficulty has arisen because the necessity for proving damage, is commonly an essential ingredient in establishing a cause of action, but at the same time the question of the amount of compensation independently of a cause of action has frequently been confused; that is, remoteness may affect the existence of a tort or may only affect the damages recoverable, The defendant may not be liable for all the consequences of his tort, or he may not be liable for a tort at all owing to the fact that there is no damage sufficiently proximate.'

After having stated that the learned authors in paragraph 282 at page 183 of the same book have stated the law on tie subject in the following words :

'Test of remoteness. In these circumstances it becomes necessary to attempt to formulate some principle, or principles, for ascertaining remoteness. It is apparent that such an attempt must be tentative in the light of the numerous and not easily reconcilable authorities.

(i) Consequences that are intended by the wrongdoer will not be too remote. This includes reckless indifference to consequences which may thereby be deemed to have been intended.

(ii) Consequences that are reasonable and probable and which, therefore, might have been foreseen are not too remote,

(iii) Consequences which are the 'direct'result of an unlawful act or omission are not too remote, although they could not reasonably have been foreseen.''

These principles in my judgment are well settled and pan safely be relied upon as a guide for the decision of the question that has arisen beforeme.

3. It is common case of the parties that the act of the Municipal Board cannot be covered by the first condition. In other words, it cannot be said that the Municipal Board intended to do an injury to Ram Bharosey. The question then which requires consideration would be whether it can be covered by the other two conditions mentioned above. It cannot be said that the Municipal Boardcould consider or any person in the position of the Municipal Board could consider that the reasonable and probable consequence of granting the licencewould be that injury would be caused to the houseof Ram Bharosey.

In my judgment the act of the Municipal Board cannot fall even in the second clause mentioned above. So far as the third clause is concerned, it may be stated that it does apply in part because the act of the Municipal Board was not within the limits of their jurisdiction and it was unlawful in the sense that it was in the teeth of their own bye-laws. In other words, as the law stood, the bye-laws being as much law as the provisions of the Municipalities Act the Municipal Boardcould not have granted the licence to Sardar Teja Singh to set up the flour mill.

It is also true that better sense prevailed with the Board at the initial stage when after having once given permission it cancelled the Same. But it seems that pressure was brought upon the Board and allowing counsel of sanity to vanish they granted the licence. That the Board did not act in a manner worthy oF an elected corporation on whom lies the responsibility of looking to the welfare of the residents of the Municipality cannot be doubted.

It is also true that the Board did not enhance its own prestige nor its utility to the residents of the town by granting a licence when the law prohibited them from doing so. But the question that still remains to be answered is whether the injury or damage to the house of Ram Bharosey was the direct result of the unlawful act of the Board in granting the licence. The grant of licence itself could not lead to the erection of the flour mill. The flour mill was erected not by the Board but by Sardar Teja Singh.

If Sardar Teja Singh even with the licence in his pocket did not want to instal the flour mill, he could not have been forced to do so. At the worst for the Board, it may be said that by granting the licence they made it possible for Sardar Teja Singhto have set up the flour mill. It is clear that if the licence had not been granted Sardar Teja Singh could not have put up the flour mill. But the mere fact that the Board enabled him to do so does not make the act of setting up the flour mill an act of the Board and does not in any way make it any the less the act of Sardar Teja Singh.

Damage to Ram Bharosey's building could not be a direct consequence of the grant of the Ecence by the Board. If Teja Singh had not installed the mill and persons had not given grain for grinding in the mill the same would not have worked and no damage to die house of Ram Bharosey would have been caused. In a sense persons who gave their corn for grinding were also responsible for the running of the mill but admittedly their act cannot be directly connected with damage to the house of Ram Bharosey and they cannot be saddled with any liability for damages.

Similarly the mete fact that the Board gave the licence to Teja Singh and thus removed one of the hurdles from his way in erecting the mill would not directly connect the Board with the damage caused to Ram Bharosey's house due to the vibrations produced by the running of the mill. It cannot also be said that conduct of the Board amounted to an abetment of the acts of Teja Singh. It did not instigate or render aid to Teja Singh in erecting the mill.

Mr. Shafiqur Rahman learned counsel for the respondent Ram Bharosey has strenuously contended that it is well established law that if a corporation acts in excess of its authority or unlawfully, it can be sued for damages, or if a corporation passes a resolution the result of which is directly to cause injury to some persons, the corporation cannot deny its liability. But in all those cases the important point is that the injury is the direct result of the act of the corporation. That is not so in the present case.

In that view of the matter I am of the opinionthat there are merits in the appeals filed by theMunicipal Board of Kheri, and the same shouldbe allowed. However, in view of the illegal actof the Board and the arbitrary and unjust mannerin which, it granted the licence in the teeth of itsown bye-laws to Teja Singh overruling all theprotest of Ram Bharosey, it is not entitled to costsin any of the Courts. The result is that the appealsNos. 189 and 196 of 1954 are dismissed with costsand appeals Nos. 168 and 169 of 1954 are allowed,but the Municipal Board shall pay the costs to theplaintiff throughout.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //