MUNICIPALITY OF BHIWANDI AND NIZAMPUR versus M/S. KAILASH SIZING WORKS

Citation: [1975] 2 S.C.R. 123 · Decided: 20-09-1974 · Supreme Court of India · Bench: A.N. RAY · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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MUNICIPALITY OF BHIWANDI AND NIZAMPUR 
v • 
. M/S. KAILASH SIZING WORKS 
September 20, 1974 
123 
[A. N. RAY, C.J., K. K. MATHEW, v. R. KRISHNA IYER, JJ.] 
Bombay ,District Municipal Act-S. 167-Scope of General Clauses Act.:..... 
"Dmtl' in good faith" meaning of. 
· 
· The. respondent had a structure beside a nallah which carries dirty water 
and ram water to the creek. The Government demolished a portion of. the 
dam upstream as a result of which the water stored in the l.ake was boUlld to . 
pass t~rough the nallah to the creek. The appellant had left unfinished the work 
of laymg cement slab across the nail.ah. In the rainy season the nallah over· 
flowed and flooded the respondent's property causing damage to it. The res· 
pendent alleged that on account of, the negligence of the. appellant the water 
course was completely blocked in the monsoon season and resulted· in the 
flooding of his premises. 
The High Court decreed the respondent's suit for damages. Sectfon 167 
of the Bombai District Municipal Act coni'ers protection on the Municipality 
in respect of anything done in 'ood faith or intended to be done. The General 
Clauses Act and the Bombay General Clauses A<:t, 1904 define "done in good 
faith" to mean do"ne honestly, whether done negligently or ncit. 
· 
On the question whether the Municipality could be said to have · acted 
honestl}1 .. Dismissing the appeal, 
· 
HELD : An authority is not acting honestly where it had a suspicion that 
there was something wrong and did not make further enquiries. Being aware 
of possible harm to others and acting in spite thereof, is acting with reckless 
disregard of consequences. It is worse than negligence, for negligent action 
is that the consequences of which, the faw presumes· to be present in the mind 
of the negligent person, whether actually it was there or. not. [12S G] 
The Central as well as Bombay General Clauses Act lay down that negligence 
does ·not necessarily mean ma/a fides. 
Something more than negligence is. 
necessary. Jn the instant case the appellant was aware of the possible harm 
and yet cared to .do nothing about it. Its action was; therefore reckless 
and 
showed its ma/a fides in the eye of law. 
Section 167 of the Act did not protect 
it. 
[126 BJ 
· Jo11es v. Gordon, .2 A.C. 616, .referred .to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2154 of 1968. 
Appeal from the judgment and decree dated March 18, 1968 of 
the 'Bombay High Court in. Appeal No. 102 of 1966. 
. 
' 
Naunit Lal, for the app~llant. 
V. M. Tarkunde and B. R. Agarwilla, for .the respondent. 
. 
. 
H 
The Judgment of the Court was delivered by 
RAY, C.J.-This appeal is by certificate from the judgment dated 
1& Ma~ch, · 1968 of the High Court of Bombay. 
Hl4 
SUPREME COURT REPORTS 
[1975] 2 s.c.R. 
Th(: respondent filed the suit against the appellant Municipality 
for the recovery of Rs. 1,00,012/- as damages suffered to the r~spon­
dent's property on account of flood caused by acts of gross negligence 
on the part of the appellant. The High Cou1t passed a decree in 
favour of the respondent for Rs. 54,560/- with interest at 6% per 
annum. 
The ·respondent has a structure abutting on the Yacoob Road. 
The width of Yacoob Road is about 12 feet. 
On the other side of 
the road is an open nallah running parallel to the road. The nal.Jah 
is a)Jout 45 feet in width. TI1e nallah provides for passage of dirty 
water, rain water to the creek during the months of November to 
May. 
The Government of Maharashtra demolished a portion of Varala 
Dam in the month of May, 1963. In consequence the water stored ·in 
the lake was bound to pass through the nallah to the creek. 
The 
appellant commenced the work oflaying cement slab across the nallah 
in about the second week of June, 1963. 
The centring work to 
support and s_ettle the slab continued to remain in its position in the . 
. nallah till about the first week of July, 1963. 
The allegations against the appellant were these : 
First, the appellant prepared a plan for narrowing the nallah in 
front of the respondent's shop without making any provision for the 
passage of additional rain water from the Varala Jake catchment area. 
Second, the existence of the centring work and the- cement slab 
across the nallah constituted a grave obstruction against the passage 
of rain water through the nallah. 
· 
· 
Third, the appellant neglected and failed to see that the passage 
of the nallah was kept f:ree and 

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