S. Krishnamurthi Aiyar vs The Taluq Board of Mayavaram

This is a suit for an injunction against the Taluq Board of Mayavaram directing it to lop off all the branches of certain trees which have spread

over the land of the plaintiff. Both the courts below have dismissed the suit holding that such a suit is not maintainable. Before us, it was argued by

the learned Vakil for the appellant that the burden of proving due care and caution in the exercise of public duties, is on the defendant''s and that

the Board should so exercise its powers as not to interfere with private rights. Section 95 of the Local Boards'' Act (Act V of 1884) directs the

Taluq Board to plant trees on the sides of roads and to preserve them. It is not disputed that the trees complained of, were planted on the sides of

the road. There is no allegation that there was any negligence in the doing of this act, The main argument for the appellant was that although the

original act was done properly, the Taluq Board is under a liability to see that the results of that act do not injuriously affect private"" rights.

Gackwar Sarkar of Baroda v. Gandhi Kacharbhai ILR (1902) B. 344 which was relied on only lays down that in exercising a duty a public body

should see that as little damage as possible is done to private individuals. In Sankaravadivclu v. Secretary of State for India in Council ILR (1904)

M. 72 it was held that the duty was not obligatory on the Government to provide a bye-wash, and that there-tore in performing this self-imposed

task the Government was bound to have respected private rights. It is not necessary to say whether the view of the functions of the Government is

right or not. in our opinion these decisions are, not applicable to the present case. As the learned Advocate-General contended, before fastening

responsibility upon a public body, for acts done by it, the first thing is to ascertain whether the act complained of was done in discharge of a

permissive right or of a compulsory duty. If Corporations have been authorised to perform certain functions not solely in the interests of the public,

their liability may not differ much from the liability of private individuals. But where the Legislature imposes a statutory obligation on a public body,

the duty prima facie is imposed in the interests of the public and private individuals are expected to submit themselves to some inconvenience in

order that the general convenience of the public may be furthered. For these reasons it has been held that unless it can be shown that they have

discharged their duties negligently and carelessly, public bodies arc not liable in damages to private individuals. In East Fremantle Corporation v.

Annois (1902) A.C. 218, Lord Macnaughten in delivering the judgment of the Judicial Committee stated : ""The law has been settled for the last

hundred years. If persons in the position of the appellants, acting in the execution of a public trust and for the public benefit, do an act which they

are authorised by law to do, and do it in a proper manner, though the act so done works a special injury to a particular individual, the individual

cannot maintain an action. He is without a remedy unless a remedy is provided by the Statute."" In the present case there is no provision, so far as

we are aware, in the Local Board''s Act giving a remedy to an injured individual in cases like the present. In another case, Canadian Pacific

Railway v. Roy (1902) A.C. 220 the Lord Chancellor stated : ""The ground upon which the immunity of a Railway Company for injury caused by

the normal use of their line is based is that the legislature which is supreme, has authorised the particular thing so done in the place and by the

means contemplated by the Legislature, and that cannot constitute an actionable one in England any more than it can constitute a fault by the

Quebec Code."" These observations apply with equal force to the acts directed to be done by the Local Boards. In Gcddis v. Proprietors of Bann

Reservoir (1878) 8 A.C 430 which was quoted for the appellant, Lord Hatherly stated: "" If a Company, in the position'' of the defendants there,

has done nothing but that which the Act authorised-may, may in a sense be said to have directed-and if the damage which arises there from, is not

owing to any negligence on the part of the Company in the mode of executing or carrying into effect the powers given by the Act, then the person

who is injuriously affected by that which has been done, must either find in the Act of Parliament something which gives him compensation or he

must be content to be deprived of that compensation."" In Hammevsinilh Ry. Co. v. Brand (1869) L.R. 4 H.L. 171 Lord Cairns stated that ""it

would be a repugnant and absurd piece of legislation to authorise by statute a thing to be done, and at the same time leave it to be restrained by

injunction from doing the very thing which the legislature has expressly permitted to be done."" The principle of these decisions was followed in

Aiyasami Aiyar v. The District Board of Tanjore ILR (1908) M. 117 where a distinction between permissive and obligatory duties was pointed

out. No doubt, as was said in Canadian Pacific Railway v. Parke (1889) A.C. 553 even in the case of Corporations if the acts are only permissive

the private rights of parties must be respected. Reference may also be made to Municipality of Picton v. Geldert (1898) A.C. 524 in which all the

authorities on the subject are collected. Probably the nearest case in point is that reported in Tregcllas v. The London County Council (1897) 14

T.L.R. 55. That was an action against the London County Council and the complaint was that by the neglect of the Council to lop off the branches

of trees plaintiff suffered injury. In that case there was no duty cast upon the Council to plant and preserve trees.... Still Lord Russell of Killowen,

C.J., held that because the failure to lop off the branch was only non-feasance, no action lay against the County Council. It must be taken now as

well established that for mere non-feasance no action for damages will lie against a public body. See Municipal Council of Sydney v. Bourke

(1895) A.C. 433 and Earl of. Harrington v. Derby Corporation (1905) 1 Ch. 205. It was argued that although the planting of the trees was done

properly, a misteasance was committed by the failure to prevent damage to plaintiff. In our opinion it would not be consistent with the duty to

preserve trees that the Local Board should cut off all its branches. The very recent case a summary of which is reported in J 45 L. Times Reports,

p. 129 Moul v. Corydon Corporation gives a complete answer to this contention. In that case, the Corporation was charged with the duty of

woodpaving road. After 17 years, the wood blocks swelled and bulged and owing to the obstructions caused by such bulging an accident

happend. Avory and Lush, JJ., held that it was not a case of misfeasance; but only one of non-feasance namely neglect to repair the highway, and

held that the Corporation was not liable. The learned Judges are reported to have distinguished Mc. Clelland v. Manchester Corporation (1912) 1

K.B.118 on this ground.

In the present case, the Taluq Board on which an obligatory duty to plant and preserve trees has been imposed are exempt from liability on both

the grounds, namely (a) that in the discharge of its duties it has not acted carelessly or negligently (b) and that the omission to remove the branches

even if it ought to have been done is only non-feasance for which no action at the instance of a private individual lies. We therefore agree with the

courts below that the suit was rightly dismissed. The second appeal is dismissed with costs.