1979 PLP 673 (CLC)

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. Abdul Rehman, Deputy Project Director, to hold an enquiry. The said Officer appeared in this case as P. W. 3, and proved his enquiry report Exh. P. 7 dated 2.7-1969. In this report it is found that the plaintiff's lift pump had to be dismantled on 24-10-1962 and that WAPDA had thereafter installed a tube-well for supplying water to the plaintiff, on 14-12-1962. It is also mentioned in this report that water supply to the orchard remained suspended at first from 25-10-1962 to 20.10-1462 and then from 29-12-1962 to 26-1-1.963. He also found that it was on account of this suspension of water supply, that the plaintiff's orchard had dried up. Apart from the plaintiff's own statement this is the only evidence on which the plaintiff relies to prove that the loss in his orchard had occurred on account of his mechanical lift having been put out of action as a result of WAPDA's operations in the matter of construc tion of the Sidhnai Barrage.

23. To establish the number of plaints that had been destroyed, the plaintiff produced three witnesses. The first is P. W. 5, the Civil Patwari, who stated that he had actually counted the dead plants. He had also submitted his report to WAPDA, which report was also produced in Court as Exh. P. 14, dated 25-3-1963. The number of plants mentioned in this report corresponds with the claim of the plaintiff. It is mentioned in the Patwari's report that the plaintiff had already replaced the dead plants when the Patwari carried out the counting operations. This fact creates a doubt about the correctness of the figures given by him, because if the dead plants had already been replaced, their stumps would not be there to be counted. The evidence produced by WAPDA in rebuttal is no better. Mr. Mahmoodul Hassan Hashmi, who appeared as D. W. 1 stated that stumps of only 35 citrus and 5 mango plants were to be seen in the orchard. His evidence is also based entirely on the counting made by WAPDA's Field Staff, and he himself had witnessed nothing.

24. The second witness produced by the plaintiff in this behalf was Saifullah Khan (P. W. 4), who at the relevant time was the Tehsildar. He too is supposed to have participated in the counting operations. The plaintiff bad made an application to him (Exh. P. 13) requesting that he should count the dead plants in his orchard, and he had obliged, as he stated, by being present at the occasion when the Patwari was counting the plants. However, he deposed that he too had not counted any dead plants himself, and that the counting was done only by the Patwart (P. W. 5). He also went to the extent of admitting the fact that the Patwari had already written out his report Exh. P. 14, when be bad reached the orchard to do the counting. The witness also failed to explain why in the first place he had agreed to participate in the counting, when it was no part of his official duties to do so. His evidence therefore is of little significance. The third witness that the plaintiff produced in this behalf was Mr. Israr Ahmad Qureshi (P. W. 2), who at the relevant time was the Deputy Project Director. The plaintiff had requested him too, to count the plants, and the witness had made a note of the counting in his note book, a copy of which was produced in Court as Exh. P.

4. In this document also it is noted that it was. the Civil Patwari, who had made the counting and the memorandum merely recorded the information that the Palwari had supplied to him. Under these circumstances the report of the Civil Patwari is to be regarded as being the primary evidence about the counting of the plants.

25. The report of Mr. Abdul Rehman (Exh. P. 7) also records a finding about the number of plants that had been destroyed. This report is based on an enquiry which he had conducted, and in which he had allowed both the parties to produce evidence. The same witnesses, namely, the Civil Patwari, the Tehsildar and Mr. Israr Ahmad Qureshi had appeared before him on behalf of the plaintiff, whereas Mr. Hashmi bad appeared as a witness on behalf of WAPDA. The report accepts as correct the counting made by the Civil Palwari. In these circumstances, despite some inherent weaknesses in the Patwari's testimony, there is no alternative but to rely on it. There is yet another factor which further necessitates this assumption. In its defence WAPDA has relied on the report of Mr. S. C. Keelan (Exh. D. 1). This report also assumes the correctness of the Patwdri's figures as certified in Mr. Abdul Rehman's report, about the lost plants, and proceeds to assess the money value of the loss. Although the plaintiff seriously objects to the manner in which Mr. S. C. Keelan has calculated the value of the loss, but he accepts as correct the number of plants that Mr. Keelan assumed as having been destroyed. In view of this report we hold that the loss to the orchard had been occasioned by the stoppage of water as was also found in the enquiry report of Mr. Abdur Rehman (Exh. P. 7) and that WAPDA was liable to compensate the plaintiff for the loss. We also hold that the number of destroyed plants as given in these two reports is correct.

26. To calculate the loss in terms of money it is also necessary to know the age of the plaints. Mr. S. C. Keelan assumed that the age of the plants at the time of their destruction was two years. In order to calculate the loss in terms of money, he employed what may be called the Cost of Replacement Method. This method of calculation is based on the reasoning that if the age of the plants at the time of their destruction was two years, then the actual loss suffered by the owner would be the cost of buying the plants from the nursery, and the cost of planting them and sustaining them for two years. If the plants were replaced, the owner would also be deprived of two years fruit which he would have obtained had the original plants lived on, because plants bear fruit only at a certain age. Therefore to calculate the total loss the price of two years fruit has also to be taken into consideration. For this purpose Mr. S. C. Keelan relied on the figures given in the report of the Horticulture Officer (Exh. P. 3). On WAPDA's request, the Director of Agriculture, Punjab Government, had forwarded the report of the Horticulture Officer, Department of Agriculture, Lahore Region, to the Project Director, Barrages. Mr. S. C. Keelan used some of the figures given in this report as basic data for his calculations. The plaintiff also examined the Director of Agriculture as P. W. 1, to produce and prove the report of the Horticulture Officer Exh. P.

3. In this report the annual fruit yields of Mango, Guava and Citrus plants are given, as also the respective market prices of the fruit. Actually in this report the value of the fruit trees is calculated on the basis of what may be called the Gross Total Yield Method. This method is based on the reasoning that the loss of a fruit plant is really the loss of total quantity of fruit that the plant would have yielded during its life time. The Horticulture Officer assumed the fruit bearing life of a Citrus and a Guava tree to be 20 years, and that of a Mango tree to be 50 years. By multiplying the average yield per year with the market price of fruit he calculated the yearly gross income. To evaluate citrus and guava trees this value was multiplied by 20, and to evaluate mango trees it was multiplied by

50. Following this method devalued guava and citrus plants at Rs. 400 each, and mango plants at Rs. 2,000 each.

27. Although Mr. S. C. Keelan has not agreed with the method of calculation adopted by the Horticulture Officer, but for purposes of making his own calculations, he has relied on the data given in report Exh. P.

3. He has assumed as correct the finding that the gross yearly income of 325 citrus trees was Rs.7,500, 70 guava trees was Rs.4,100 and 125 mango trees was Rs. 5,

000. He calculated the value of citrus plants at two years gross fruit yield, by multiplying Rs. 7,500 by

2. However, he calculated the value of guava and mango plants at 4 years gross fruit yield, by multiply ing respectively Rs. 4,100 and Rs. 5,000 by

4. The reasoning for this difference is that citrus plants had been replaced by the plaintiff immediately, whereas the other plants had not been replaced even 2 years after the loss. In this report two years income for citrus was calculated at Rs. 1,500, four years income of guava trees at Rs. 5,600 and four years income of mango trees was calculated at Rs. 20,

000. The total loss was thus found to be Rs. 40,600.

28. Sardar Allah Bakhsh has raised a large number or objections to the report of Mr. S. C. Keelan. His case is that compensation ought to have been awarded as calculated to the Horticulture Officer's report Exh. P.

3. In this report the value of a mango tree was found to be Rs. 2,

000. However, the plaintiff himself regards this figure as being too high and submits that at least Rs. 1,000 should have been awarded as compensation. In this behalf the plaintiff has also produced oral evidence to show that other owners in the area were compensated for the loss of their mango trees by WAPDA at the rate of Rs. 1,000 per tree. However, no documentary evidence was produced in this connection. In any case this cannot be regarded as being a satisfactory way of calculating the loss of fruit trees. It is also submitted by the plaintiff that the age of his fruit plants was really four years, and as they had been planted in the orchard when they were already two years old, the total life of each plant ought to have been regarded as being six years, and compensation calculated accordingly. It is also objected that in Mr. S. C. Keelan's report no compensation had been awarded for the cost of the plants and of planting them and maintaining them for two years.

29. It is true that there are several flaws is the report of Mr. S. C. Keelan, which will be considered hereinafter though some of the errors made are to the plaintiff's advantage as well. However, the Gross Total Yield Method, adopted by the Harticulture Officer, cannot be regarded as being a fair measure for awarding damages. All that the plaintiff is entitled to in such cases is the restoration of the injury suffered by him. He can therefore be awarded the cost of restoration and no more. What the plaintiff has lost is a two-year old orchard, which was likely to start yielding fruit in probably another two years time. The cost of restoration is the sum representing the outlay involved in growing a two-year old orchard, with the same number of plants. However such efforts must require a two years time period to materialise, with the result that the plaintiff has also to be compensated for two years fruit yield, because the replaced orchard would yield fruit only at a time two years after the original orchard was anticipated to do. The plaintiff has not suffered such a loss as he must endure for 50 years in the case of the mango plants, and 20 years in the case of guava and citrus plants. After the destruction of the plants, surely the land was immediately available to the plaintiff to be put to any useful purpose, including the planting of a new orchard. A duty is cast upon a plaintiff to mitigate or minimize the damages, by taking all reasonable precautions to reduce the amoun , of loss or damage arising from the wrongful act of the defendant A plaintiff cannot sit back and claim compensation for loss which, with the exercise of reasonable care. he could have avoided. Such damage is too remote to be recoverable.

30. In our view the cost of Replacement Method gives a closer approxi mation of the actual loss suffered, and it is a fair method of awarding compensation. However, there are some obvious errors of calculation made in Mr. S. C. Keelan's report, which is relied upon by WAPDA for their defence. For example it was not necessary to evaluate guava and mango plants at 4 years gross value of fruit, when the ages of these plants, like the citrus plants had been found to be two years. If the plaintiff had failed to replace these plants immediately, WAPDA could not he penalised for such failure. However since the report of Mr. S. C. Keelan is relied upon by WAPDA itself in defence, we are not inclined to reduce the compensation as is calculated therein. Similarly in this report the gross value of the fruit has been considered, although the net value might well have, been adopted as a basis for calculation. We do not propose to make any reduction on that account either. On the other hand we find that the cost of plants, and of planting them acid sustaining them for two years has not been taken into account at all. In all fairness, this cost should also have been added in the report. In this regard WAPDA itself has produced a letter from the Deputy Director (Agriculture) -Multan Division, Multan, which he wrote to WAPDA, and which is placed on the record as Exh. D. W. 2/2. In this document the total price of such plants is given as Rs. 2,067.85. The cost of planting them and maintaining them for two years is calculated at Rs. 4560. This makes a total of Rs. 6,627.85, which amount is to be added to the value arrived at in Mr. S. C. Keelan's report.

31. There is, however, no merit in the submission made by the plaintiff, that the age of his fruit trees was six years. A copy of Kharsa Gtrdawari which is placed on record as Exh. D. E., clearly establishes that the age of the plants was less than two years. This document shows that an entry in respect of the orchard was made for the first time on 30-10-1961. The fruit plants might have been planted in the month of July, 1961. In any case the plants could not have been more than two years of age when they were destroyed in December, 1962.

32. The plaintiff has not produced any convincing evidence that his cotton crop standing on an area of 10 acres and 10 marlas had been destroyed, for which he has demanded an amount of Rs. 5,430 as compensation. However in the report of Mr. Abdur Rehman (Exh. P. 7) it is held that some of his crop had indeed been destroyed, but the report leaves the area to be ascertained later. WAPDA has brought nothing on record to show that any attempt was made to ascertain this area. Therefore merely because the Khasra Girdawari does not show any entry of Kharaba it cannot be argued that the claim of the plaintiff must be held to be false. The finding of Mr. Abdur Rehman is also endorsed in the Report of Mr. S. C. Keelan. In this view of the matter, the plaintiff was also entitled to be compensated for the loss of his crop at Rs. 5,

430. We, therefore, find that WAPDA should have paid a sum of Rs. 52,657.85 as compensation for the loss suffered by the plaintiff. The plaintiff was thus entitled to a total compensation amounting to Rs. 52,657.85.

33. However in view of our decision on Issue No. 1, we hold that Sardar Allah Bakhsh's :remedy to recover the amount is time-barred. In these circumstances, it is for the Government or for WAPDA to consider the propriety of depriving a citizen of what is due to him, by taking advantage of the fact that his legal remedy is barred by time.

34. In view of our decision on issue No. 1, we have no option but to dismiss R. F. A. No. 86 of 1970, and to accept R. F. A. No. 82 of 1970, and set aside the judgment and decree passed by the Civil Judge against WAPDA, and dismiss the suit filed by Sardar Allah Bakhsh. However, in the circumstances of the case, the parties are left to bear their own costs. Order accordingly.