Nain, J. - (1.) This is a plaintiffs' appeal against the judgment and decree of the learned Civil Judge, Senior Division, Thana, dismissing their suit for recovery of Rs. 1,00,012 as damages for loss caused to their property on 5th July 1963 by flood water, filed against the Municipality of Bhivandi and Nizampur. The plaintiffs allege that they have suffered the loss on account of the negligence of the defendants.
(2.) The plaintiffs occupy a permanent structure on Yacoob Road at Bhivandi wherein they carry on the business of sizing yarn. They had machinery, raw materials and other goods stored in the premises at all material times prior to and during the month of July 1963. There is a gutter about 1 1/2 feet wide running along side Yacoob Road between the said Yacoob Road and their factory premises. On the other side of the road, there is an open nullah running parallel to the road. This nullah is about 40 to 45 feet wide and provides a passage for dirty water and rain water passing to the creek. The plaintiffs alleged that the defendants covered the said nullah with a slab after narrowing it to a width of 15 feet where the slab was put without providing adequate passage for rain water and during the monsoon of 1963 for water from the catchment area constituting Varala Tank. The Government of Maharashtra at the instance of the defendants demolished a portion of Varala Tank in April 1963. In consequence, the rain water falling in the catchment area of the lake was expected to pass along with the rain water falling in the catchment area of the nullah through this nullah on to the creek. The plaintiffs say that in spite of the partial demolition of the Varala Tank, over a height of six feet from the ground level, the defendants commenced the work of laying the cement slab across the nullah after the demolition of the said part of the said tank and completed the work of the laying of the slab in the second week of June 1963. They further alleged that the centring work to support and settle the slab continued to remain unremoved till about the first week of July 1963. This centring work obstructed the passage of bushes and debris and together they prevented the water from passing. The defendants failed to keep the nullah free of centring bushes and debris for the flow of the water in July 1963. The plaintiffs further alleged that their machinery and goods in the said premises at Yacoob Road were damaged by heavy rain water entering the premises as a result of heavy rains on 5th July 1963. According to them, the nullah overflowed because of the obstruction to the passage of water caused by the narrowing of the nullah, slab, centring and garbage. According to them, the damage sustained by their goods was the direct result of the action of the defendants by reason of their negligence and the defendants were therefore liable to make good to the plaintiffs the loss caused by the damage. The defence of the defendants was that there was no negligence on their part in narrowing or slabbing the nullah or in not removing the centring or allowing garbage to collect. They contended that the damage was due to heavy rain which was an act of God. Their principal defence, however, was that a suit of this nature was barred by the provisions of S. 167 of the Bombay District Municipal Act, 1901.
(3.) One of the reasons, and in fact the principal reason, for the dismissal of the plaintiffs' suit was that the suit was barred by the provisions of Section 167 of the Bombay District Municipal Act, 1901. Sections 167 and 167A(1) read as under: "167. No suit shall lie in respect of anything in good faith done or intended to be done under this Act or against any municipality or against any committee constituted under this Act or against any officer or servant of a Municipality or against any person acting under and in accordance with the directions of any such municipality, committee, officer or servant or of a magistrate". "167A. (1) No suit shall lie against a municipality or against any officer or servant of a municipality in respect of any act done in pursuance of execution or intended execution of this Act........";