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Petitioner: ALLAH BAKHSH VS Respondent: WEST PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY, LAHOREHonorable Justice MUHAMMAD HABIBULLAHA. K Dogar,Syed Muhammad Naqvi
1979 C L C 673
1979 C L C 673
[Lahore]
Before M. S. N. Qureshi and M. Habibullab, JJ
Sardar ALLAH BAKHSH-Petitioner
versus
WEST PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY, LAHORE--Respondent
Regular First Appeal No. 86 of 1970, decided on 20th May, 1979.
Limitation Act 0X of 1908)-
-- Art. 2 read with Art. 36-Application of provision of Art. 2 Fxpression "alleged to be"-Does not mean alleged by plaintiff in plaint or by defendant in written statement-Provisions of Art. 2 apply when a functionary does or omits to do something in furtherance of prescribed statutory objectives and in process infringes private rights.--[ Amar v. Secretary of State A I R 1939 Lab. 583 and Province of East Pakistan v. Rowshan Ara and others P L D 1970 Dacca 567 not applicable].-[Words and phrases].
In order to attract the provisions of Article 2 of Limitation Act, 1908 the act or the omission complained of must be relatable to a statute, but the words "alleged to be" suggest that the act or omission must not be such as is required by the statute itself to be done or avoided. This, however, does not mean that the act must be falsely alleged to be under a statute to attract Article 2, because factually or legally incorrect assertions can never bring a suit within the purview of an article of the Limitation Act, which does not truly apply to the circumstances of a case. Therefore if Article 36 applies to a situation, a mere allegation that the act was in pursuance of a statute, will not attract Article 2. The words "doing or omitting to do an act alleged to be in pursuance of an enactment" have been interpreted in a number of cases. The expression "alleged to be" does not mean alleged by the plaintiff in his plaint, or alleged by the defendant in his written statement.
Article 2 will therefore apply in a situation when the act complained of is neither required nor forbidden to be done under the letter of an enactment, and yet it is also not wholly unrelated to the obligations that are implied in an enactment so as to attract the provisions of Article 36. This can only happen when a functionary does or omits to do . something in furtherance of prescribed statutory objectives, and in the process infringes private rights. It is to this situation that Article 2 applies, and the functionary is regarded as doing or omitting to do things "alleged to be in pursuance of any enactment".
Secretary of State v. Lodna Colltary Co. Ltd. and others A I R 1936 Pat. 513 and Gurucharn Kaur v. Madras Province A I R 1942 Mad. 539 ref.
Amar v. Secretary of State A I R 1939 Lab. 583 and Province of East Pakistan v. Rowshan Ara and others P L D 1970 Dacca 567 lot applicable.
A. K Dogar for Appellant. Syed Muhammad Naqvi for Respondent.
Dates of hearing : 18th, 19th November; 3rd, 12th, 13th December, 1978; 28th January; 25th, 26th February; 11th, 14th. 18th and 19th March, 1979.
JUDGMENT
MUHAMMAD HABIBULLAH, J.-This judgment will dispose of R. F. A. No. 86 of 1970 and R. F. A. No. 82 of 1970, both of which are directed against a judgment and decree of Sao Iqbal Ahmad Khan, Civil Judge, Faisalabad, dated 25.4-1970, in a suit filed by Sardar Allah Bux against WAPDA for the recovery of Rs. 2,88,430, as damages, which was decreed for Rs. 45,160 with costs. R. F. A. No. 86 has been filed by Sardar Allah Bux, praying that the suit may be decreed for the full amount he had claimed in the plaint. R.. F. A. No. 82 has been filed by WAPDA, praying that the writ may be dismissed.
2. The plaintiff who is a land owner in village Jusa, Tehsil Toba Tek Singh, District Faisalabad had planted an orchard in an area of 12 acres. `this orchard was irrigated by river water, which was lifted by a mechanical lift installed by the plaintiff on his other land on the river bank, from where water channels were made upto the orchard. However on account of the construction of Sidhnai Barrage, as a part of the Indus Basin Project, river Ravi had to be widened by 300 feet on the right side, which necessitated at first the dewatering of a section of the river, where the plaintiffs lift had been installed, and later on the dismantling of the mechanical lift itself. The supply of water to the orchard having remained suspended over a period, all the plaints dried up. The plaintiff has claimed a sum of Rs. 2,83,000 as compensation for the loss of 325 malts plants, 70 guava plants and 125 mango plants which had been destroyed. The plaintiff also claimed that he had grown cotton over an area of 12 acres and 10 marlas, but the crop was destroyed by the movements of contractor's vehicles in the area. A sum of Rs. 5,430 was claimed as compensation in this behalf, making the plaintiff's total claim to be Rs. 2,28,430.
3. WAPDA contested the suit, and denied that it was liable to pay any compensation. It was also contended that the suit was time barred. It was denied that any of the plaintiff's cotton crop had been destroyed. The area under the orchard, the number of plants allegedly destroyed, and the amount claimed as compensation were controverted. It was also asserted that in any case no loss had been occasioned on account of any action by WAPDA. It was submitted that the loss of the mechanical lift had been compensated for by providing a tube-well to the plaintiff at a cost of R. 33,000, which tube-well could have been worked by a diesel engine by the plaintiff if any water was needed, and that no plants had dried up for lack of water, on the pleadings of the parties the following issues were framed :-
(i) Whether the suit is within limitation?
(ii) Whether the suit property has not been properly described ?
(iii) Whether the plaintiff is entitled to recover the amount as detailed in para. 7 of the plaint from the defendant ?
(iv) Relief.
4. The period of limitation prescribed by Article 2 of the First Schedule to the Limitation Act, is 90 days. The trial Judge repelled the defendant's contention that this article was attracted in the circumstancwt;3 of the case. He found that the period of limitation in this case was 6 years, because provisions of Article 120 were applicable. He also held that the suit was within time. The Court also found with reference to issue No. 2 that the objection, that the plaintiff had not described the property over which loss had occurred, was meaningless, because the defendant's officers bad visited the spot for purposes of assessing the loss, and although their assessment Was that no cotton crop existed on the plaintiff's land, and that the number of plants destroyed in the orchard 'was less than what was claimed, they had, by giving their verdict, established the identity of the property in respect of which damages were claimed. On issue No. 3 the trial Court found that on account of the construction work, carried out for Sidhnai Barrage, the plaintiff's mechanical lift on the river was rendered useless, and the plaintiff's land as well as orchard were deprived of irrigation water, with the result that the orchard as the cotton crop were destroyed. The trial Court assessed the value of the fruit trees at Rs. 40,600 on the basis of the report of Mr. S. C. Keelan, Project Director (Bxh. D-1). The plaintiff had claimed Rs. 5,430 for the cotton crop, but the Court allowed him only Rs. 4,560 on the reasoning that he must have taken the first picking, before the crop was destroyed which happened in the month of November and disallowed Rs. 870 on that account.
5. On issue No. 1 it is contended on behalf of WAPDA, that the suit was time barred, because Article 2 of the Limitation Act was attracted in the circumstances of the case. It is submitted that the alleged damage had occurred because WAPDA was executing the Sidhnai Barrage Project, on behalf of the Central Government, and in that process a section of the river had to be dewatered and its right side widened by 300 feet. It is also contended that WAPDA was carrying out this work under section 9-A of the WAPDA Act which is to the following effect :--
"9-A. Notwithstanding anything contained in this Act, the Authority may, with the previous approval of the Government, undertake the execution of any scheme framed or sponsored by the Central Govern ment or any agency other than an agency in West Pakistan.
It is therefore argued that the WAPDA was doing an act under "an enactment", which had resulted in loss to the plaintiff and as such the period of limitation for filing the suit was 90 days from the date of the act complained of. It is asserted that the date of commencement of the period of limitation is squarely mentioned as being 25-10-1962 in para. 9 of the plaint, and the suit having been filed on 28-7-1966, was clearly barred by time by several years. It is indeed stated in para. 9 of the plaint that on 25-10-1962 the pumping station of the plaintiff was rendered ineffective, resulting in complete non supply of water to plaintiff's crops and orchard. In support of his claim the plaintiff has primarily relied on the report (Exh. P. 7) of Sh. Abdur Rehman, Deputy Project Director Barrages in which it is stated that on account of the construction operations, water supply to the plaintiff's garden had remained suspended for a period from 25-10-1962 to 20-12-1962. Thereafter WAPDA installed a tube-well, and water was made available to the plaintiff with the help of a diesel pump, but the supply was again interrupted from 29-12-1962 to 26-1-1963. The case of the plaintiff is that it is on account of these interruptions that bis orchard had got dried up. It is, therefore strongly asserted on behalf of WAPDA that the period of limitation for the suit was 90 days, commencing from 25-10-1962.
6. Learned counsel for the plaintiff on the other hand has contended that the provisions of Article 2 were not attracted in this case, because WAPDA bad been working under a statute, and as such its action resulting in stoppage of water was not a tort. In fact this is also the finding of the trial Court on this issue It is further contended that since WAPDA was action under a statute, it was therefore also its duty to assess and pay compensation for the loss that it had occasioned to the plaintiff, and since it bad failed to do so, the cause of action had arisen from the date of intimation to the plaintiff of its refusal to award compensation, and the period of limitation for the suit was 6 years under Article 120 which was attracted in the circumstances. It is asserted that where statutory compensation is to be recovered by suit, Article 2 does not apply, and reliance is placed in this behalf on Secretary of State v. Lodna Colliery Co. Ltd. and others (A I R 1936 Pat. 513). It is also asserted that WAPDA had finally refused to compensate the plaintiff on 29-9-1966, and the period of 6 years was to be computed from that date.
7. The contention that since WAPDA had been acting under a statute, Article 2 was not attracted, is based on a wide generalization, which is not true in all situations. Article 2 applies to suits for compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in Pakistan", and the period of 90 days prescribed in the article commences "when the act or omission takes place". Obviously Article 2 cannot apply unless the act complained of is relatable to some enactment in force. It cannot therefore be said that acting in pursuance of an enactment makes the article inapplicable.
8. When an act is required to be done by the letter of a statute, an aggrieved person may bring a suit on the cause of action that the public functionary had omitted to do it. In that event it cannot be said that the omission was "allegedly" in pursuance of the enactment, when actually it was in direct contravention of it. Likewise when an act is forbidden by the letter of a statute, an aggrieved person may bring a suit on the cause of action that the public functionary had done something which was forbidden. In that event too it cannot be said that the act was "allegedly" done in pursuance of the enactment, when actually and truly it was done in contraven tion of it. Therefore Article 2 cannot apply to a situation when anything is required to be done or omitted to be done by the letter of a statute. Likewise when the action complained of is not referable to any enactment at all, nor is it in violation of contractual obligations, Article 36 of the Limitation Act would apply, which is attracted in a situation when malfeasance, misfeasance or non-feasance is attributed to any defendant, including a public functionary. The period of limitation under Article 36 is 2 years. Article 2 is distinguishable from Article 36 by the fact that the act referred to in Article 2, is allegedly done in pursuance of any enactment, and does not amount to being purely misfesance or non-feasance.
9. In order to attract the provisions of Article 2, the act or the omission complained of must be relatable to a statute, but the words "alleged to be" suggest that the act or omission must not be such as is required by the statute itself to be, done or avoided. This, however, does not mean that the act must be falsely alleged to be under a statute to attract Article 2, A because factually or legally incorrect assertions can never bring a suit within the purview of an article of the Limitation Act, which does not truly apply to the circumstances of a case. Therefore if Article 36 applies to a situation, a mere allegation that the act was in pursuance of a statute, will not attract Article 2. The words "doing or omitting to do an act alleged to be in pursuance of an enactment" have been- interrupted in a number of cases. The expression "alleged to be" does not mean alleged by the plaintiff in his plaint, or alleged by the defendant in his written statement. It was held in Gurucharn Kaur v. Madras Province (A I R 1942 Mad. 539) that the use of the word "alleged" in the article cannot be taken to mean that a mere allegation of a party, that it had acted a mere allegation of a party, that it had acted in pursuance of an enactment, would make Article 2 applicable.
10. It is also not the ostensibility of an action being under a statute. that attracts the provisions of Article 2, which applies to acts and omissions alike. It is meaningless to say that an omission is ostensibly under a statute. If a statute does not truly require a thing to be done, omission to do it cannot give rise to any cause of action. A defendant therefore need never plead his omission as being ostensibly under an enactment, for if the omission violates no law, he need hardly invoke limitation as defence. In the same way when a thing is required by the letter of a statute to be done, its doing cannot give rise to a cause of action at all, unless the law itself is bad, being violative of some Fundamental Rights or any other constitutional provisions. It is another matter that in such situations the laws infringing private rights, invariably provide for compensation being awarded, and if statutory compensation is not paid, then this omission also becomes a violation of the letter of the law, and not merely an "omission to do an act allege.; to be in pursuance of any enactment".
11. Article 2 will therefore apply in a situation when the act complained of is neither required nor forbidden to be done under the letter of an enactment, and yet it is also not wholly unrelated to the obligations that are implied in an enactment so as to attract the provisions of Article 36. This can only happen when a functionary does or omits to do something in furtherance of prescribed statutory objectives, and in the process infringes private rights. It is to this situation that Article 2 applies, and the functionary is regarded as doing or omitting to do things "alleged to be in pursuance of any enactment".
12. The reason why Article 2 is couched in such words is that enactments which require the doing of certain things by public bodies or functionaries, often stop short at merely identifying the objectives that are to be achieved. Even where the process by which achievement is to be made is elaborately given in the statute, every activity which the achievement must entail, cannot, find mention in it. A statute cannot take the form of a manual of technical and procedural instructions on a project. Therefore a multiplicity of non-specified acts have to be performed for reaching objectives statutorily prescribed. There may not always be a fixed way of reaching these objectives, and a wide element of choice is left with the statutory functionaries to shape the course of their action, and to perform acts in their own discretion. It is such acts and performances that have to be regarded as being "alleged to be in pursuance of any enactment". Likewise any omissions made during such a process would be regarded as being of the same nature.
13. There is yet another situation to which Article 2 might apply. It is not necessary that only the initial moves and actions of a functionary are to be regarded as the "act" giving rise to a cause of action. The "act" can also be the resultant manifestation of all his plans and actions. Some times the achievement of a statutory objective may itself induce ancillary consequences not envisaged in the statute, but infringing private rights. Such consequences can also be regarded as being acts of the functionaries, and such acts would also be regarded as being "alleged to be in pursuance of any enactment". Article 2 would apply to such a situation also.
14. Applying the above reasoning to the facts of this case we conclude that Sardar Allah Bakhsh's water pump was dismantled in the process of the construction of the barrage, under a scheme which WAPDA was executing on behalf of the Central Government, under provisions of section 9-A of the WAPDA Act, and as such Article 2 was attracted. The pump was not dismantled under the letter of any statute. It was dismantled in the process of doing things which had to be done for executing the Scheme.
15. Learned counsel for Sardar Allah Bakhsh has referred to Amar v. Secretary of State (A I R 1939 Lah. 583) in support of his contention that the article has do application where action taken is under a statute. In that case the act complained of was failure to allot statutory compensation, and it was held that Article 2 did not apply. Similarly Province of East Pakistan v. Rowshan Ara and others (P L D 1970 Dacca 567), which has also been referred to in this behalf, is a case where the suit had been filed for realization of statutorily provided compensation for requisitioned property, and it was held that Article 120 was applicable. The decision of the cited cases fits in with the above analysis. These however do not apply to the fact of the present case. No statute has been referred to, under the letter of which, WAPDA could be said to be bound to assess and pay compensation to the plaintiff. Had that been so, Article 120 would have applied. Section 9-A of the WAPDA Act does not require that compensation is to be paid to a person receiving an injury in the process of execution by WAPDA of any scheme of the Central Govern ment. While carrying out a scheme, however, it sometimes becomes necessary to acquire property permanently or temporarily. In such a situation compensation is indeed payable under the Land Acquisition Act, but where no statute provides for payment of compensation for an injury caused, then compensation, though payable on general principles, is not payable under the letter of a statute. Here Article 120 does not apply.
16. It is next submitted on behalf of the plaintiff that WAPDA had admitted in para. 3 of the written statement, that the authority was statutorily required to compensate the plaintiff and on account of this admission Article 120 was attracted. A reading of paragraph 3 of the plaint, however, reveals that what the plaintiff had alleged was that he had a statutory right to receive compensation for the crops destroyed by WAPDA. It was in reply to this averment that the defendant had admitted the legal position to be correct, although it was denied that WAPDA had damaged the plaintiff's crops. It is indeed true that where WAPDA damaged crops within the work area, compensation had to be awarded, and it was in fact awarded under provisions of the Land Acquisition Act. There is no admission in the written statement, that any statutory compensation had to be paid for the orchard that had dried up for lack of supply of water as a result of dismantling of the lift, or for crops destroyed outside the work area. In any case an admission on a question of law is not binding. There is therefore no merit in this submission.
17. It is next submitted that the claim of the plaintiff had remained under consideration of the Authorities till 30-4-1966, and that the suit having been filed on 28-7-1966 was within time. This submission too is without any merit. The plants are alleged to have dried on account of non-supply of water during two intervals of time, that is from 25-10-1962 to 20-12-1962 and then from 29-12-1962 to 26-1-1963. Plants must have dried during this period. According to para. 9 of the plaint the cause of action arose on 25-10-1962 when water was stopped. Article 2 also provides that the period of 90 days is to be computed from the date the act or omission takes place. There is, therefore, no force in the submission that time should be computed from 30-4-1966. The cause of action arose on 25-10-1962 and the period of limitation under Article 2 is 90 days. We, therefore, hold that the suit was barred by time.
18. Issues Nos. 2 and 3 are being decided together. In the written statement WAPDA has totally repudiated the plaintiff's claim for damages. WAPDA's case is that it was not on account of any action taken by WAPDA that the plaintiff had suffered any loss ; that the plants in the plaintiff's on account of non-supply of water but they were destroyed by white ants ; that the number of plants destroyed was much less than what was claimed by the plaintiff ; and that in any case the money value of the loss was greatly exaggerated by Sardar Allah Bakhsh. WAPD:~ also claimed that none of the plaintiff's cotton crops had been destroyed, as was apparent from the khasra girdawari that had been produced, which did not show any Kharaba for the relevant period.
19. On the basis of WAPDA's own case issue No. 2 can be decided straightaway. WAPDA is relying on Khasra Girdawari pertaining to the cotton crop, which was allegedly destroyed, and it is also challenging the loss that had occurred in the orchard. It cannot, therefore, be denied that the identity of the lards on which the loss had occurred was well established. Issue No. 2 is accordingly derided in favour of the plaintiff.
20. WAPDA'F defence in this case is primarily based on the report of Mr. 14idhmovdii:~ liassan Hashmi, who at the relevant time was the Executive Ergineer (Canals) and was dealing with this matter. He appeared as h. W. 1 in this case, and the report which he had submitted to his Department was also produced as Exh. D. W. 1/1. He also produced letter Exh. D. W. 1/2 in which he had reported to his Department that none the plants in the plaintiff's orchard had dried on account of lack of waited and that the field staff had discovered only 35 citrus and 5 mango plait stumps in the orchard. It was also stated that the destruction had be caused on account of white ants.
21. The plaintiff's case on the other hand is that as a result :._ operations that WAPDA was carrying on, for the construction of Sidhnai Barrage, his mechanical lift, which he bad installed on the river to irrigate his lands, was first put out of action and later on dismantled, with the result that water supply to his orchard was stopped and all the plants dried up. The plaintiff appeared as P. W. 10 in the case, and deposed elaborately about the cause of destruction of his orchard, in which 70 guava plants, 125 mango plants and 325 citrus plants were standing. He also stated that his cotton crop standing on an area of 10 acres and 10 marlas had beer destroyed. He claimed a sum of Rs. 2,88,430 as damages.
22. The plaintiff's contention is that Mr. Mahmoodul Hassan Hashmir who was dealing with the matter at the relevant time, was inimical towards him, because some of the plaintiff's relatives had reported against him that he was instrumental in securing excessive compensation from the Government, for certain persons, whose land had been temporarily acquired by WAPDA. The plaintiff, who himself was a very senior Officer of WAPDA, made representation to the relevant authorities in this behalf, with the result that enquiries were initiated and investigations made to assess what was truly due to the plaintiff on account of the loss he had suffered. In this connection the Project Director (Barrages) had deputed Mr.…
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