Decided on December 03,1964



- (1.) THE appellant is a Co-operative Society, constituted inter alia to promote co-operative endeavour in agriculture among its members, block No. 9 comprised more than hundred acres of land, which required to be drained yearly for cultivating and raising paddy. In that behalf the appellant published a notification Ex. P-2, stipulating among other matters, the terms and conditions to be fulfilled by the members to whom the land belonged, for draining water by mechanical means for the agricultural operations of the year 1955. Every year, this part of the work was being done by employing a contractor who installed a water pump and accessories and completed the work on terms settled by an agreement in writing entered into between him and the appellant. THE contractor was chosen by competitive auction held each year, in the presence of the Punjakrishi Special Officer. Ex. D-3 is the agreement entered into for the year 1955, between the contractor and the appellant. THE machinery for draining was installed in previous years, on the property of the respondent, who owned no land whatever in block 9, situated on the north of the block, with one or two bits of land in between-That property was originally a paddy field, but shortly before the suit was commenced, had been reclaimed as garden with cocoanut seedlings planted on it. On the west of the property is a 'thodu' or canal through which, for draining, water was discharged from the paddy fields in block 9 on the south to a river on the north. THE contractor having been chosen and the agreement Ex. D-3 having been executed as stated above, preparations were on foot for installing the water pump and accessories at the south-western corner of the respondent's property, as in previous years. Getting scent of these preparations, the respondent protested to the appellant by Ex. P-3 and to the Special Officer by Ex. P-4, both dated the 9th December, 1955, that the pumping operations if carried on at that site, would injuriously affect his property and that, in any case such operations should not be permitted without having ensured adequate protection against such injury. THEse protests went unheeded, it is the respondent's case, that the appellant chose the south-western corner of his property and permitted the contractor to instal machinery and to carry on draining operations.
(2.) APPREHENDING injury to his property, the respondent instituted the present suit on the 22nd December, 1955, with a prayer to issue a commission forthwith to record the existing condition of the property and to prepare a plan, and upon a declaration that the act of the appellant constituted trespass, to ascertain the extent of damage by the issue of another commission in due course and to decree damages. The appellant contended inter alia, that the responsibility for the selection of the site for installing the machinery lay on the Special Officer and the contractor, that no injury had been caused to the property and that no damages ought to be decreed. The trial of the suit did not come to an end before the agricultural operations of the next year were to begin. The respondent moved, though unsuccessfully, for an injunction to restrain the appellant from using any longer his property for carrying on the draining operations. Eventually, he amended the plaint by claiming damages for the years 1956, and 1957 also. The two courts below have held, that the site on the property of the respondent for installing the machinery was chosen by the appellant and not by the Special Officer or by the contractor and that an appreciable portion of the western bank of the property had been washed away, and have decreed damages against the appellant. Before considering the evidence, it is necessary to dispose of a legal argument, based on the provisions of the Travancore-Cochin irrigation Act, 1956, that this mode of draining water from paddy lands is an "irrigation work" as defined in the Act, the construction, repair and maintenance of which is by S. 11 vested in Government, & that the punjakrishi Special Officer is a nominee of Government to exercise the powers conferred by the Act, and so the appellant has no liability. "irrigation work" is defined by S. 2, and sub-section (5), clause (d), which alone seems material, does not, it seems to me, envisage a pumping operation of the kind, for draining water from paddy fields. That clause enacts, that "irrigation work" shall include "all drainage works, that is to say, canals, channels, escape channels from a canal, channel, reservoir or tank dams, weirs, embankments, sluices, groynes or other works for the protection or benefit of agricultural lands or for the reclamation of kole lands, kayal lands, kari lands, or such other lands. " It is too far-fetched to suggest, that the process of draining water is an irrigation work as defined, on the notion that it benefits agricultural lands; rather it is a part of the agricultural operations. The term "work" in the context of clause (5), refers to some installation or piece of construction. Moreover, if a new "irrigation work", major or minor as defined, is to be undertaken, a special procedure has been prescribed in Parts II and III of the Act, according to which the Collector has to be petitioned, notice of the petition has to be published or given, objections invited, and appropriate orders passed. None of these things, it is claimed, has been done in the present case. In this view, S. 36 of the Act providing for immunity against suits or prosecutions or legal proceedings in respect of anything done under the Act or the rules made under it, is not attracted.
(3.) THE findings of the two courts are concurrent, that the appellant selected the site for the installation of the machinery for the concerned years. It is sufficient for me to state, that the findings rest on adequate materials. Exx. D-4 & D-5 are the two agreements entered into between the appellant & the contractors for the years 1956 & 1957, & they have provided, that the machinery was to be installed on the usual site, viz. , the site on the respondent's property. This shows conclusively that for those years, the choice of the site was entirely with the appellant. A part of the respondent's claim relates to those years. Though Ex. D-3 is slient as to the site, the choice of it was not left to the contractor. In Exx. P-3 and p-4, the protest was that the appellant had already selected the site, to which the appellant gave no answer. D. W. 3 the Secretary of the appellant, did not swear that the Special Officer or the contractor selected the site. D. W. 1 the contractor deposed, that the site was chosen either by the cultivators or by the Society. I am not able to read into the averment as to " " in the affidavit filed by the President of the appellant on the 14th November 1956, that the site for installing machinery was itself chosen by the Special officer, apart from directions which he might have given in connection with the draining operations in the past, on the western side of the respondent's property. It is inconceivable, that the Special Officer would be charged with the duty or would have undertaken the responsibility, of even selecting individual spots for installing machinery for the draining of water from blocks of paddy lands. P. W. 1 the respondent said in chief-examination, that this site was chosen at the instance of the appellant. It is needless to pursue in this strain, for I am satisfied, that sufficient ground does not exist for disturbing the concurrent findings. Learned counsel argued, that the contractors engaged from year to year were not the servants of the appellant, but were independent contractors, as these terms are understood in legal phraseology, and so the appellant cannot be held liable for damages which might have ensued from the operations carried on by them. If the site for installing the machinery was chosen by the appellant, he is liable for injury to the property which is directly traceable to operations being carried on at that site, as distinguished from collateral negligence of the contractor or his servants. Denning, L. J. stated, the rule thus in Cassidy v. Ministry of Health (1951) 2 K. B. 343 at 363: "i take it to be clear law, as well as good sense, that, where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services". The law is stated thus by Salmond in'law of Torts', 13th edition, page 157: "if an employer is under a duty to a person or class of persons, he is liable if that duty is not performed and damage thereby results, and cannot evade that liability by delegating the performance of the duty to an independent contractor. Whether there is such a duty will depend upon whether the employer as a reasonable main ought to foresee that the persons who suffer damage are likely to be affected by the performance of the independent contractor's acts,. . . For we have seen that an employer is not responsible for the acts of his contractor merely because what is to be done by him may involve liability to others if done negligently".;

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