COMMISSIONERS FOR THE PORT OF CALCUTTA Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) This is an appeal from a judgment and decree of the High Court of Judicature in Calcutta, dated 22 August, 1935, which reversed the judgment and decree of the same Court in its original civil jurisdiction, dated 8 June 1934, and which decreed the respondents' suit to recover from the appellants the sum of Rs. 44,612-9-4 as damages for negligence. The questions at issue are whether the appellants are liable for the damage caused by the flooding of the respondents' pumping station, and whether their claim was barred by time in virtue of a provision in the Calcutta Port Act, 1890. The principal facts in the case are not in dispute, nor is the amount of damages due by the appellants, if liability is established. As their Lordships have formed a clear opinion that the respondents' claim is statute-barred, and, as their Lordships, in that view, deem it unnecessary to form or express an opinion on the question of negligence, it is possible to abridge the examination of the facts which would otherwise have been appropriate and necessary. The appellants are a statutory body, constituted under the Calcutta Port Act (Bengal Act 3 of 1890). The respondents are a statutory body, constituted under the Calcutta Municipal Act (Bengal Act 3 of 1923). The appellants own and operate a double track railway which runs north and south, on the east side of the river Hughli, and which is parallel and adjacent to the river. The railway crosses at right angles the approach road to the Howrah Bridge, which links up the towns of Howrah and Calcutta, lying respectively on the west and east side of the river. The respondents have a pump house in the angle formed by the interception of the railway with the approach road. Unfiltered water for the use of the inhabitants of Calcutta is drawn from the river through four suction pipes, which run from the river under the appellants' railway to the pump house.

(2.) In or about the year 1914, in order to avoid the inconvenience of the then existing arrangement, whereby the railway traversed the approach road by a level crossing, the appellants executed a scheme, in virtue of which the railway was carried under the approach road. This scheme involved the lowering of the respondents' suction pipes, so as to keep them under the level of the railway. The appellants carried the respondents' pipes from the river side to the pump house in three brick-lined tunnels, which were sealed up on the river side. The middle tunnel carried two pipes, and the tunnels on the north and south of it carried one pipe each. The appellants then laid the railway over the top of the roof of the tunnels. In order to afford protection to the tunnels, they overlaid the roof with steel plates. To protect the railway against flooding the appellants constructed a drain in the middle of the railway track. The drain ran into a sump, which was emptied by two pumps set up in a pump house belonging to the appellants, and situated on the other side of the railway line from and just opposite to the respondents' pump house. The respondents also had a sump in their pump house, with a small pump attached to it.

(3.) In the beginning of the year 1926 the respondents, being desirous of increasing their supply of unfiltered water from the river, discussed with the appellants a project for laying down a fifth pipe through which to draw water from the Hughli to the respondents' pump house along a line south of the southermost of the existing pipelines. As this pipe, like the others, had to be carried across the appellants' railway, it was agreed, by letters passing between the parties, and hereinafter referred to, in order to ensure as little interference with the railway as possible, that the work should be done by the appellants staff at the respondents' expense. On 21 and 22 July, 1926, while the laying of the fifth pipeline was under discussion, an abnormal fall of rain occurred in Calcutta, and flooding ensued. In particular the appellants' subway was flooded. The water flowed into their pump house, and overwhelmed the pumps. It poured through the tunnels, and over certain screen walls into the respondents' pump house. The whole pumping plant was thereby put out of action. The respondents, in their plaint, alleged that their pump house was flooded in consequence of the appellants' negligence. They stated that the rush of water into the pump house was due to the existence of two holes under the steel plates, which were made by the appellants, or which they suffered to remain open. In both respects the appellants were alleged to have been guilty of negligence.