Ahmad, J.

(1) The District Board of Manbhum, who is the defendant in the suit, is the appellant. It is a body corporate constituted under the Bihar and Orissa Local Self-Government Act. By Section 79 of that Act, it has the authority to plant trees by the side of the road. The plaintiffs, who are the members of the joint Hindu family and residents of mohalla Dulmi within the Municipality of Purulia, instituted the suit for damages on the allegation that one jore tree standing on the District Board road fell on their residential house situated by the side of the road, and caused damage to its tiled roof and pucca walls and also smashed three rickshaws of the plaintiffs, which were then kept there in the compound. Their case was that in the year 1943 strong winds used to blow in that area and as a result thereof some trees had fallen and, therefore, they apprehended that the tree standing on the road in front of their house might also fall and damage their house. On this apprehension they wrote a letter to the District Board on 7-5-1943 and drew its, attention to the danger apprehended and requested that the branches extending on their premises should be lopped off, and, if possible, the tree itself might be cut down. Their allegation was that in spite of their information given to the District Board, the District Board did neither chop off the branches nor Cut down the tree with the result that on 26-5-1945 one of those jore trees, which stood there since some time before 1931 when the plaintiffs house was constructed, got actually uprooted by the storm and fell on the house of the plaintiffs causing damages as stated above. In the plaint they claimed that as a result of all this they were put to a total loss of Rs. 887/14/-. Out of this, the loss of Rs. 827/14/- was caused on the first day, i. e., on the day when the tree fell on the house and that of remaining Rs. 60/- on days subsequent thereto as the rooted out tree was left lying on the premises in spite of reminders till 30-11- 1945.

(2) The suit was contested by the defendant District Board. It contended that the tree was not standing in a dangerous condition and that the reports submitted to it, both by the Sectional Officer and the Engineer, were to the effect that the trees there were in quite sound state and that there was no fear of those trees being uprooted in the near future. It further, inter alia, pleaded that the facts alleged in the plaint did not show any cause of action against it and the suit was barred by the special law of limitation, as prescribed in Section 146, Local Self-Government Act, and that no proper notice was served on the defendant. Its specific defence was that the tree which had fallen had been planted by the District Board in the performance of the statutory duty imposed upon it and its fall was not due to any negligence on its, part or due to any wilful default in the performance of that statutory duty. It was, according to it, a, case of vis major for which the defendant could not be held liable in law. It also pleaded that the damage caused by the fall of the tree on the tiled roof of the house did not amount to more than Rs. 129/- and the cost of repairing the rickshaws could not exceed Rs. 80/- in all. On these pleadings the Court framed the following issues:

"

1. Was any notice served by the plaintiffs as required under the provisions of the B. and O. L. S. G. Act If not, can the suit proceed

2. is the suit barred under Section 146, B, and O. L. S, G. Act

(3) Are the plaintiffs entitled to claim any damages If so, to what extent

(4) To what relief, if any, are the plaintiffs enti-tied"

3. The two Courts below have concurrently found that the notice served on the defendant by the plaintiffs was legal and sufficient, as contemplated by the B. and O. Local Self-Government Act, that the suit was, not barred by the special law of limitation, as laid down under Section 146, B. and O. Local Self-Government Act, that the falling of the tree was not due to any act of vis major and that the plaintiffs are entitled to damages. They, however, in assessing the damage found that so .far as the failure on the part of the District Board in removing the rooted out tree from the premises of the plaintiffs was concerned, it did not by itself cause any additional damage to the plaintiffs. All, therefore, that the plaintiffs, according to the finding of these Courts, were entitled to by way of damages was the loss they suffered on the day when the tree fell and that according to them came to Rs. 627/14/-only. On these findings, both the Courts decreed the suit for this sum of Rs. 627/14/-only.

4. Mr. B.C. De appearing for the defendant District Board did not challenge any finding of fact arrived at by the Court of appeal and I think rightly. He pressed the appeal only on the following points :

1. That the suit is barred by the special law of limitation under Section 146, B, and O. Local Self-Government Act.

2. That the jore tree was maintained on the road by the District Board in the performance of the statutory duty imposed upon it and as such the Board is not liable either for having that tree on the road or for the necessary consequences of its presence there. 3. That the fall of the tree was not due to any negligence or failure of duty on the part of the District Board. 4. That in any case a statutory body like a District Board when acting under a statutory authority is not liable for non-feasance.

(5) The first point as to limitation is based on the interpretation of S, 146 of the Act. That section has got four clauses. The first clause deals with "the question of notice preceding a suit. It reads:

"No suit shall be brought against any District Board, or Local Board, or any of their officers, or any person, acting under their direction, for anything done under this Act, until the expiration of one month next after notice in writing has been delivered or left at the office of such Board and also "(if the suit is intended to be brought against any officer of the said Board or any person acting under their direction) at the place of abode of the person against whom such suit is intended to be brought, stating the cause of action and the name and place of abode of the person who intends to bring the suit."

The second clause enjoins that the proof of the notice shall be an essential part of the procedure in the suit. It says: "and, unless such notice be proved, the Court shall find for the defendant." The third clause is the one in controversy and it deals with the specific question of limitation. It is in these terms:

"Every such action shall be commenced within three months next after the accrual of the cause of action, and not afterwards,"

The expression "such action" used in this clause obviously means the action referred to in Clause (1). That being so, the limitation prescribed in this clause is applicable only to that action which is against a District Board or Local Board or any of their officers or any person acting under their direction, and is for anything done under this Act. In this case the, first part of the clause is undoubtedly complied with. The controversy, therefore, centres round the applicability of the second clause to the facts of the present case, that is, whether the suit, giving rise to the appeal is for anything done under this Act or not. The act complained of is the negligence on the part of the District Board which is said to have resulted in the falling of the tree on the house of the plaintiffs. The question, therefore, is as to whether the action for damages by the plaintiffs on the ground of the falling of the tree is a suit for anything done under the Act. There is no allegation by the plaintiffs that there was any positive act done by the District Board which resulted in the falling of the tree. All that have been alleged as to the cause which led to the falling of the tree is that the District Board while the tree was standing on the road did not take proper care in maintaining it. Therefore, the application of special limitation, referred to above, depends on two considerations; firstly, whether the expression "anything done under this Act" is wide enough to cover also "anything omitted to be done under the Act", and, secondly, whether the omission alleged in this case against the District Board is one which it should not have omitted to do under the Act.

(6) So far as the first point is concerned, the Act itself is silent on it. That, however, does not dispose of the matter. The wording of Section 146, Bihar and Orissa Local Self-Government Act when read with the definition of the word "Act" given in Section 3, General Clauses Act, 1897 or Section 4, Bihar arid Orissa General Clauses Act, 1917 makes it clear that the expression "anything done under this Act" includes in it "anything omitted to be .done under the Act", as held in the case of -- Allan Mathewson v. District Board of Manbhum, AIR 1920 Pat 324 (A). The word "act" is defined in Section 3, General Clauses Act as-

" act used with reference to an offence or a civil wrong, shall include a series of acts, and words which refer to acts done extend also to illegal omissions."

Further, apart from the definition of the word "act" given in the General Clauses Act, the section when construed even on its own terms will have to yield to the same meaning. In the case of -- "Wilson v. The Mayor and Corporation of Halifax, (1849) 3 Ex 114 (B), the Act under interpretation was the Public Health Act, 1848 (11 and 12 Vict. c 63). That Act provided that

"no action shall be brought until after a months notice, for anything done or intended to be done under the authority of the act."

The allegation against the defendants of that case, namely, the Mayor and Corporation of Halifax was that they had wrongfully neglected to fence off for the protection of passengers the footway near the goit, and that thereby the deceased, the husband of the plaintiff, fell into the goit and was drowned. In defence to that claim, the defendants inter alia contended that they were entitled to notice of action. The plaintiff in answer to it pointed out that the charge against the defendants was not of any act done or intended to be done, but of an omission to erect or cause to be erected a fence between the footpath and the goit, and that the omission to do an act is not "an act done or intended to be done." On these contentions the learned Judges, who heard the case, relying on the views taken in two earlier decisions in the cases of -- Davis v. Curling, (1846) 8 QB 287 (C) and -- Poulsum v. Thrist, (1867) 2 CP 449 (D), observed:

"... . whatever may be the construction which might be put upon the words of the statute, if the question arose in this case for the first time, it is now settled by authority, that an omission to do something that ought to be done in order to complete performance, of a duty imposed upon a public body under an act of parliament, or the continuing to leave any such duty unperformed, amounts to an act done or intended to be done within the meaning of these clauses, requiring notice of action for the protection of public bodies acting in the discharge of public duties under acts of parliament." This decision, therefore, clearly supports the view, that the expression "anything done under this Act" used in Section 146 should be taken to include in it also "anything omitted to be done under the Act."

(7) The second point to be considered in this connection, as stated above, is whether the omission alleged in this case against the District Board is one which it should not have omitted to do under the Act. In my opinion, the action contemplated by Section 146 for "anything done under this Act" or for "anything omitted to be done under the Act" necessarily and logically should mean an action for "anything wrongfully done" or for "anything wrongfully omitted to be clone" by the District Board in the discharge of the functions and duties imposed upon it under the Local Self-Government Act. - And, therefore, the omission referred to here should be taken to mean all those which may arise under the statute by which it has been incorporated or under law -- Chunder Sikhur Bundopadhya v. Obhoy Dhurn Bagchi, 6 Gal 8 (FB) (E). So far as the Act or the statute is concerned, it does not specifically lay down any duty on the District Board to maintain the trees standing or planted on the roadside, and in the course of argument counsel appearing for the parties conceded "that there was no provision to that effect in the Act. Section 79 of the Act, which has been relied upon by the plaintiffs for establishing the liability against the District Board in this case, only gives power to plant trees on the roadside and it says nothing beyond that. The exact relevant words used in the section are:

"It shall be lawful for a District Board to take measures for, or to contribute towards -- the planting of trees by the roadside."

(8) I agree with Mr. De that the words "It shall be lawful for a District Board to take measures for, or to contribute towards..... the planting of trees by the roadside" in Section 79 Local Self- Government Act cannot mean that "It shall be lawful for a District Board to take measures for, or to contribute towards ...... the maintenance of trees by the roadside". The decision in the case of -- Northwestern Utilities v. London Guarantee and Accident Co. Ltd., AIR 1936 PC 27 (F), gives full support to this view. The subject-matter of discussion in that case was Section 13, Alberta Water Gas, Electric and Telephone Companies Act, 1922, which said:

"The Company shall locate and construct its gas or water works or electric or telephone, system and all apparatus and appurtenances thereto belonging or appurtaining or therewith connected and wheresoever situated so as not to, endanger the" public health, or safety."

The question raised there was as to whether the words "locate" and "construct" inducted in them "maintain" also or not. On an elaborate discussion of this point it was held therein that those words referred only to the initial location or construction of the works and did not, include "maintain" and that the appellants were not subject to the rule of strict or absolute liability but were entitled to the protection accorded to persons acting under statutory authority.

(9) It, therefore, comes to this that the liability, if any, in this case against the District Board on the facts alleged must be one based on law and not on the statute. The grievance of the plaintiffs is that the District Board having planted trees by the side of the road under, the powers given to it by the Act omitted to take proper Care of those trees which were under its management and control with the result that one of them ultimately fell on the house of the plaintiffs and this happened in spite of the information given by the plaintiffs to the District Board to the effect that the tree was likely to be uprooted any moment and to fall on the house of the plaintiffs. The general principle of common law is that every person and body must so manage and maintain the property under its control that it should not cause injury to others. In this case damage, according to the plaintiffs, was done to them due to the omission on the part of the District Board to control and maintain the trees properly. That being so, the omission as alleged is clearly connected with the act which the District Board did in the exercise of the powers given to it under the Local Self-Government Act. For these reasons it has to be held that the special limitation provided in Section 146, Local Self-Government Act is applicable to the facts of this case.

(10) Next it has to be found as to whether the action of the plaintiffs on the facts alleged by them is in fact on the principles of law stated above barred by time under the terms of Sections 146, Local Self- Government Act, In order to give a finding, it would, be, I think, fruitful to analyse beforehand the exact nature of wrong alleged to have been committed by the District Board and also the remedy which in law it can give rise to. Certainly in this case the wrong alleged cannot constitute trespass and, therefore, no remedy for trespass is available to the plaintiffs, for injury complained of is neither forcible nor direct. It is, on the other hand, consequential and as such the remedy, if any, for the wrong alleged is in the action, on the case. Then it is not a case of negligence as contemplated in its purely objective sense giving rise to injuries on the dangerous premises itself. Injuries suffered as a result of the dangerous state of the premises by persons who have not entered them fall within the tort of nuisance as laid down in -- Howard v. Walker, (1947) K. B. 860 (G), and -- Jacobs v. L. C. C., 1950 A. C. 361 (H), may that nuisance be due to any positive act done by the defendant, that is, mis-feasance or due to any neglect of duty on its part i.e., non-feasance. It is, therefore, essential here to keep in mind where the accident takes, place and why the plaintiff is in that place because the duty of the occupier, of dangerous premises to the plaintiff, who is injured on the highway or on adjoining land, may differ materially from his duty to the plaintiff who suffers damage from the defective state of the premises after having entered upon them. In this case the injury was suffered by the plaintiffs while they were on their own land adjoining to the land whereon the tree was standing. The wrong, therefore, can be either a nuisance or one covered by the rule in -- Raylands v. Fletcher, (1868) 1 Ex. 265 (I). But it is plain that the rule in -- Raylands v. Fletcher, also is not applicable to the facts of the present case. Jore tree is not poisonous in any sense nor dangerous per se; the plantation of such a tree on the District Board -road can neither be called a non-natural user of the land. In the case of -- Noble v. Harrison, (1926) 2 K. B. 332 (J), non-poisonous trees were held to involve the occupier to no liability under the rule in -- "Raylands v. Fletcher, (I), if planted in the ordinary normal use of the defendants land. Therefore, the wrong on the facts alleged, if any, in this case can be one of nuisance alone.

(11) Now coming back to the question of limitation, we find that the clause dealing with the special limitation in Section 146 requires that this suit for the alleged nuisance should have been commenced within three months next after the accrual of the cause of action and not afterwards. The tree in this case fell on 26-5-1945 and the present action was brought on 19-1-194

6. Prima facie, this suit is, therefore, barred by the special law of limitation.

(12) Mr. Mukherji appearing for the respondents, however, argued that on the facts found, the nuisance, as alleged in this case, was of a continuing character and continued to operate till 30-11-1945 when the rooted out tree was removed from the premises of the plaintiffs. In that view of the matter, it was argued that the period of limitation should be reckoned from 30-11-1945 and not from 26-5-1945 on the principle laid down in Section 23, Limitation Act. According to him, it was one continuing wrong which firstly resulted in the tree becoming dangerous due to negligence and then in its having been uprooted by storm and thereafter in its fall on the house of the plaintiffs and lastly in its being left lying there till 30-11-194

5. On this basis it was argued by him that the wrong which began on 26-5-1945 continued to recur till 30-11-194

5. In support of his contention, reliance was placed by him on the case of -- Gaya Prasad Singh v. Jagdish Chandra, AIR 1940 Pat 561 [LQ/PatHC/1940/84] (K). In my opinion, this contention is not correct and the case relied upon by him is also on the face of it distinguishable. The case of Gaya Prasad Singh v. Jag-dish Chandra (K) is a case of trespass. That trespass by way of personal entry is a continuing injury, lasting as long as the personal presence of the wrong doer, and giving rise to actions de die in diem so long as it lasts, is sufficiently obvious; for a continuation of every trespass is in law a new trespass.

(13) In this case, the wrong, if any, as said above, is of nuisance and nuisance not related to the disturbance of an easement or other servitude I appurtenant to land but a nuisance in wrongfully causing or allowing the escape of a deleterious thing, which in this case was the tree, into the land of the plaintiffs. It is true that nuisance is essentially a continuing wrong, that is "to say, it generally consists in the establishment or mainte nance of some state of things which continuously or repeatedly causes the escape of noxious things on to the plaintiffs land -- Sedleigh-Denfield v. St. Josephs Society for Foreign Missions and Hill- man, 1940 AC 880 (L). . And in common speech an escape of something on a single occasion, however harmful and wrongful, would not be termed a nuisance. This distinction, however, is not one based on any legal principle as observed in -- Stone v. Bolton, (1949) 1 All ER 237 at p. 238 (M). The question as to whether a nuisance is of a continuing character or not has in each case to be decided on its own facts.

(14) A right in jurisprudence is an - interest, respect for which is a duty and the violation or disregard of which is a wrong. - Where the wrong consists of a breach of a positive duty, i.e., to do something, the test to find out whether there is a continuing wrong is to see whether the duty is to continue to do that thing. If so, the omission to do that thing , is a continuing wrong during the time the omissi6n lasts. Where the wrong consists of a breach of a negative duty i.e. to refrain from doing something, the test to find out whether there is continuing wrong is to see whether the wrongful act produces a state of affairs, every moments continuance of which is a new wrong (i e., which is a continuing source of injury) and is of such a nature as to render the doer of it responsible for the continuance. If so, it is a continuing wrong. Where the wrongful act does not produce such a state of affairs but is a fleeting or evanescent act like a slander uttered or a slap on "the cheek, it is not a continuing wrongs The criterion of a continuous wrong is not whether the right or its corresponding obligation is a continuing one, but whether the wrong is a continuing one. In the case of --Rajroop Koer v. Syed Abul Hossein, 7 Ind App 240 (PC) (N) their Lordships of the Privy Council observed:

"the obstructions which interfered with the flow of water to the plaintiffs mohal were in the nature of continuing nuisance, as to which the cause of action was renewed de die in diem so long as the obstructions causing such interference were allowed to continue."

Similar was the principle laid down regarding continuing wrong by their Lordships of the Privy Council in the case of- -- Hukum Chand v. Maharaj Bahadur Singh, AIR 1933 PC 193 [LQ/PC/1933/51] (O). In this case the wrong of causing or allowing the escape of the tree into the land of the plaintiffs was committed only once and that was on 26-5-194

5. Then nuisance (excepting in the cases of injuries to servitude) is actionable only on proof of actual damage -- Nicholls v. Ely Beet Sugar Factory Ltd., (1936) Ch 343 (P). Thus, no action will lie against him who allows the branches of his trees to overhang his neighbours land or their roots to grow into his neighbours soil, unless actual damage is caused thereby -- Smith v. Giddy, (1904) 2 KB 448 (Q). In this case it has been found concurrently by the two Courts of facts that the damage to the house of the plaintiffs by the fall of the tree was done only on the date the tree fell and at no other time subsequent thereto and further there is no evidence to the effect that the act alleged wrongful produced any state of affairs, every moments continuation of which was a new wrong. Therefore, the contention of Mr. Mukherji that the wrong was a continuing, wrong has no sub- stance and it has to be rejected. Mr. De in supporting (sic) the plea of continuation rightly laid reliance on the principle underlying the case of AIR 1920 Pat 324 (A) and those of -- Fetter v. Beal, (1890J 91 ER 1122 (R) and -- Hodsoll v. Stallebrass, (1840) 113 ER 429 .(S). In the first case the substantial question raised was as to whether any aggravation of the injury subsequent to the cause of action could create a fresh cause of action. To that the learned Judges, who decided that case, gave the answer that it could not. In the case of "Fetter v. Beal (R) it was held:

"After a recovery in an action for an injurious act, no action can he maintained on account of any consequences occasioned by that Act. Therefore, a recovery in an action for an assault and battery is a bar to an action for a subsequent loss in consequences of the battery of a part of the skull."

In the other English case Lord Denman C. J. observed;

"The evidence here was, that the servant would not recover the use of his land for a considerable time; that supported the allegation of a permanent injury. The note to -- Hambleton v. Vecre, (1666-73) 2 Wms Saund 169 (T), notr (1), says that, in actions of trespass and tort, new actions may be brought as often as new injuries and wrongs are repeated; not as often as new damage accrues."

It is true that these cases cited by Mr. De in fact refer to those contingencies where the injury once caused due to a wrong is either subsequently aggravated or appears in some new form. Here, as found by the two courts, the injury giving rise to the damage, was done only on the first date and not on any other date subsequent thereto. Therefore, in that sense the cases relied upon by" Mr. De do not bear similarity with the case before us; yet it is obvious that they clearly lay down the principle that the limitation is to begin from the date of the actual wrong in case the wrong is not of a continuing character and to this extent they are helpful to Mr. De. It has, therefore, to be held that the present action by the plaintiffs is barred by time under Section 146, Local Self-Government Act.

(15) I may state here that in coming to this conclusion I am not unmindful of the fact that the tree on being uprooted was left lying by the District Board on the house for a long time till 30-11-194

5. That was, in my opinion, only a continuation of the effect of a wrong and did not by itself constitute a continuing wrong as laid down in the case of AIR 1920 Pat 324 (A). It was in such circumstances open to the plaintiffs in law to protect themselves against such an invasion by cutting the tree projecting on their land beyond the boundary of the road and by removing it from their premises and this they could do even though the fallen tree was doing no harm to them see -- Lemmon v. Webb, 1895 AC 1 (U).

(16) The next point raised by Mr. De was the plea of statutory authority. There is no denying that the District Board had the specific authority under Section 79, Local Self-Govemment Act to plant trees by the roadside. In the case of -- Mayor and Councillors of East Fremantle v. Amnois, 1902 AC 213 (V) it was held:

"It is well established that where a mayor and corporation do a public work in the interest of the public, if a person suffers, unless the Act gives compensation to that private person, that private person cannot recover damages at the hands of the jury, unless the mayor and councillors have gone outside their powers and have acted oppressively, arbitrarily and unnecessarily."

For such a statutory authority js also a statutory indemnity, taking away all legal- remedies provided by the law of torts for persons injuriously affected. No compensation in general, therefore, in such circumstances may be obtainable save that, if any, which is expressly provided by the statute itself. This defence of statutory authority, as pointed out in the law of torts by Salmond, has its most common and important applications in actions of nuisance. And further the indemnity extends not only to the act but also to all its necessary consequences, . Salmond in his book says:

"This statutory authority and indemnity extends not merely to the act itself, but to all its, necessary consequences. When the Legislature has authorised an act, it must be deemed also to have authorised by implication all inevitable results of that act; for otherwise the authority to do the act would be nugatory -- Quebec Ry. v. Vandry, AIR 1920 PC 181 at p. 189 (W). The test of the necessity of a consequence is the impossibility of avoiding it by the exercise of due care and skill. No consequence which can be so avoided is within the scope of the statutory indemnity; every consequence which cannot be so avoided is within that protection. "

It is now thoroughly well established", said Lord Blackburn in -- "Geddis v. Proprietors of Bann Reservoir, (1878) 3 AC 430 at p. 455 (X), "that no action will . lie for doing that wnich the Legislature has authorised, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the legislature has authorised, if it be done negligently. The criterion of inevitability is not what is theoretically possible, but what is possible according to the state of scientific knowledge at the time, having also in view certain commonsense appreciation which cannot be rigidly defined, of practical feasibility in view of situation and of expense -- "Manchester Corporation v. Farnworth, 1930 AC 171, (Y). On these principles it was argued by Mr, De that the trees were brought on the road by the District Board in accordance with the authority given to it under the statute and in doing that the Board" in the exercise of that authority committed no negligence nor acted any way oppressively, arbitrarily and unnecessarily and as such it was not liable for the result which was inevitable. There is no evidence on the record nor any allegation to the effect that the District Board in planting the trees by the roadside did anything which can be said to be negligent. All that have been alleged are that the Board even on the information given to it by the plaintiffs did not take notice of the fact that the tree standing on the highway had become dangerous and constituted a nuisance and further that in spite of notices to that effect it did not take the trouble of either cutting down the branches extending over the premises of the plaintiffs or cutting down the tree itself in order to avoid the threatened danger to the house. In my opinion, the evidence on the record is not at all sufficient to prove that the tree had in fact become dangerous and much less the fact that it had become dangerous to the knowledge of the District Board. There are two reports on the record which were submitted to the District Board on the complaint received from the plaintiffs. One is that of the Sectional Officer, Sadar, and the other that of the District Board Engineer, both of the same date, that is,. 13-5-1943, Those reports show that the branches were not hanging over the tiled roof of the house as mentioned in the complaint filed by the plaintiffs. Further, they show that the trees were then in quite sound state and that in the opinion of these officers there was no fear of the trees being uprooted in the near future. These reports were submitted on 13-5-1943 and the tree fell on 26-5-1945; that means, about two years after the date of the reports. It has not been argued in this case that the reports submitted by these officers were malicious or incorrect. There is, so far I have been able to find, no material even to suggest and much less to prove, that the reports submitted by these officers were malicious or incorrect nor there is any other material, excepting the apprehension then working in the mind of the plaintiffs that the tree would fall, to prove that the tree was in fact then standing in a dangerous condition. Apprehensions howsoever great cannot be by themselves a basis to hold that the trees there were in fact standing in a dangerous condition. For this reason it has to be held that the Board did all that it could do in order to enquire as to whether the. allegation of the plaintiffs regarding the trees being dangerous was justified or not. The Board under the statute has to act through its officers and experts. The Sectional Officer and the Engineer, who are said to have made reports, referred to above, had to be given certain credit of possessing the necessary skill to give reports in matters like this. If the reports submitted by them were not correct, the plaintiffs should have taken the trouble of bringing evidence on the record to prove that aspect of the case. Unfortunately that not having been done, it has to be accepted that the tree on the date of the reports submitted by the two officers was in a sound state and was not standing in a dangerous condition. As to the fact that the reports were limited in their scope, that is they said that there was no fear of the tree being uprooted in the near future, it is sufficient to say that the words "near future" in a case of a tree cannot be taken to be a very short interval like a year or two. In these circumstances the mere fear on the part of the plaintiffs that the tree in front of their house was likely to fall as other trees in the vicinity had fallen due to storm could not be a ground for the District Board to cut down all the trees standing in front of the house of the plaintiffs. It is true that nuisance does not fall within the scope of, statutory authority and indemnity if it can be avoided with due care and skill and it is also true that by due care and skill in this connection is meant not merely that of the defendant himself but that of his agents or servants or independent contractors. But in this case unfortunately for the plaintiffs there is no evidence on the record to suggest, as already discussed above, that the fall of the tree could be avoided by due care and skill. I, therefore, think that the District Board is not liable for the inevitable result of the act done by it in the exercise of the authority given to it by the statute and there is no evidence that in the exercise of that authority the District Board committed any negligence or lack of skill or care. This conclusion arrived at by me is fully supported by the principle laid down in the case of 1902 AC 213 (V). In that case their Lordships of the Privy Council held:

"The law has been settled for the last hundred years. If persons in the position of the appellants Acting in the execution of a public trust and for the public., benefit, do an act which they are authorised by law to do, and do it in a proper manner, though the act so done works a special injury to a particular individual, the individual injured cannot maintain an action. He is without remedy unless a remedy is provided by the statute. That was distinctly laid down by Lord Kenyon and Buller J. and their view was approved by Abbott C. J. and the Court of Kings Bench. At the same time Abbott C. J. observed that if in doing the act authorised the trustees acted arbitrarily, carelessly, or oppressively, the law in his opinion had provided a remedy. Those words, "arbitrarily, carelessly or oppressively", were taken from the judgment of Gibbs C. J. in -- Sutton v. Clarke, (1815) 6 Taunt 29 (Z), decided in 1815 ............ In simpler language Turner L. J. -- Gallowway v. Corporation of London, 1864 2 DJ and S 213 at p. 229 (Z1), observed in a somewhat similar case that "such powers are at all times to be exercised bona fide and with judgment, and discretion." And in a recent case, where persons acting in the execution of a public trust were sued in respect of an injury likely to result from their act, the present Master of the Rolls, then Collins L. J. observed that the only obligation on the defendants was to use reasonable care to do no unnecessary damage to the plaintiffs."

In dealing With this point I am alive to the rule of law that this defence of statutory authority is available to the District Board only if it is found that the authority given thereunder is an absolute one and not a conditional authority. Absolute authority is authority to do the act notwithstanding the fact that it necessarily causes nuisance or other injurious consequences. The leading case on this subject in the case of -- The Hammer Smith and City Rly. Co. v. Brand, (1869) 4 HL 171 (Z2) settles beyond controversy that where the Legislature directs that a thing shall at all events be done, doing of which, if not authorised by the Legislature would entitle any one to an action, the right of action is taken away. But it must be clear that the Legislature has given the order and that the order given has been thoroughly pursued, and it is well-settled that the burden lies on those who seek to establish that the Legislature intended to take away the private rights of individuals to show that by express words or by necessary implication such an intention appears --Managers of the Metropolitan Asylum District y. Frederick Hill, (1881) 6 AC 193 (Z3). Conditional authority is authority to do the act provided it can be done without causing a nuisance or other injurious consequences. In case the authority given is a conditional one the person authorised is in the position of ordinary persons who upon the principle stated by Mellish L. J. in -- Clowes v. Staffordshire Potteries Waterworks Co., (1872) 8 Ch A 125 (Z4) is all responsible for his acts, Whether authority is absolute or conditional is generally a question of construction depending on all the circumstances of the case. Where the autho rity is imperative, and not merely permissive, it is necessarily absolute -- that is to say, when the statute not merely authorises but also directs a thing to be done, then it may be done regardless of any nuisance that necessarily flows from it (1881) 6 AC 193 (23). An authority which, is merely permissible, on the other hand, is prima facie conditional only; for the Legislature will not be deemed, in the absence of special reasons for so holding, to have intended to take away the rights of private persons, without, compensation -- Canadian Pacific Ry. v. Parke, 1899 AC 535, (Z5).

(17) Relying on these principles Mr. De argued that the phrase "it shall be lawful" used in Section 79, Local, Self-Government Act imposed an absolute duty on the District Board to plant trees by the roadside and in support of this contention laid reliance on the case of Julius v. Lord Bishop of Oxford (1880) 5 A, C. 214 (Z 6). In my opinion, this case at least is of no avail to Mr. De in support of his contention and that for two reasons. Firstly, the ratio decidendi of that case, is that the enabling words are always compulsory whenever the object of power is to effectuate a legal right. In this case the power given to the District Board to plant trees by the roadside is not for the purpose of effectuating any legal right in any person, but to provide convenience and comfort to the public in general who pass and repass on the road. Secondly, it does not deal with the case of tort. The complaint in that case was that the Bishop had refused to perform a statutory duty and, the question for decision was as to whether the Court of Queens Bench was right in awarding mandamus. The remedy, if any, in that case that was available to the petitioner was mandamus and not an, action for damages and, therefore, the refusal to perform the statutory duty in that case could not give rise to an action in tort.

(18) That, however, does not dispose of the matter. There is the general rule of construction that when a statute confers upon a corporation a power to be exercised for the public good, the exercise of power is not generally discretionary but imperative and the words "power" and "authority" in such case may be construed as "duty" and obligation". In one case it has been said:

"A provision in the charter of a town that the Mayor and Councillor should have power and authority to pass ordinances for the comfort, good order, health, and safety of the inhabitants, is held not merely to confer power to pass such ordinances but to make it imperative to do so; the words power and authority being construed, as equivalent to duty and obligation".

Reading the Local Self-Government Act from this point of view it seems clear to me that the purpose underlying the power given to the District Board for planting trees is to provide convenience to the community at large and as such the power given to that effect to the District Board is of absolute character and in that sense it may be construed as duty and obligation. It has, however, to be clearly kept in mind that word "duty" as used here is not in the sense of duty to effectuate any right in any individual nor in the sense of a duty imposing a strict liability. If, now, on the principles stated above, the nature of duty imposed on the District Board as to the planting of the trees is of an absolute character, the liability has to be Judged on that basis. In Harnmand v. Vestry of St. Pancras (1874) 9 C. P. 316 at p. 322 (Z 7) Bret L. J. says:

"-It would seem to me to be contrary to natural justice to say that Parliament intended to impose upon a public body a, liability for a thing which no reasonable care or skill could obviate. Where the language used is, consistent with either view, it would not to be so construed as to inflict a liability, unless the party sought to be charged has been wanting1 in the exercise of due and reasonable care in the performance of the duty imposed".

That being so, no action can lie against the District Board for the planting of trees by the side of the road unless the plaintiffs prove that in its endeavour to exercise the power the District Board did not use due care and diligence. It has already been found above that the District Board in planting the trees did riot commit any negligence nor exercised the power given to it oppressively, arbitrarily find unnecessarily. Therefore, the District Board is riot liable for doing what it did in the exercise of an absolute power given to it under the statute or for its necessary consequences.

(19) The third plea advanced by Mr. De raises a question as to whether the fall of the tree was due to any negligence on, the part of the District Board. The negligence in this case could arise either due to the duty imposed under the Local Self-Government Act itself or due to any duty imposed by law. It has been conceded that the Local Self-Government Act does not impose any duty on the District Board either to maintain the trees properly or to lop off the branches in case they extend upon the property of others. The duty, therefore, if any, in this case can be said to arise under the common law only. Under, that law it was the duty of the District Board to see that the tree should not be allowed to extend beyond the confines of the road so as to become a danger or nuisance to persons occupying the land in the neighbourhood. In this case perhaps the tree had been allowed to extend its branches beyond the confines of the road. That, however, is not of much consequence in this case as the injury, if any, was not caused by the branches extending on the land of the plain tiffs. Further, I have used the word perhaps be cause of the fact that the evidence on the record is not sufficient to prove that the tree had in fact been allowed to extend its branches beyond the confines of the road. The injury in this case was in sub stance caused by the trees being rooted out from the soil and thereafter having fallen on the pre mises of the plaintiffs. This must be either due to the reason that the tree was standing in a diseased condition or due to the reason that it had been negligently allowed to become dangerous. It may be argued that under common law the owner or the occupier upon whose land trees stand is under duty to examine them and if there is a danger of one of those trees falling upon the land in the neighbourhood and hitting any person or some property on that land, it is the duty of the owner to have that tree removed which is found to be dangerous. In this case it is conceded that the tree had not become dangerous due to any particular act done by the defendant i.e. by mis-feasance. It must have, therefore, become dangerous, if at all, due to some hidden action of nature on it or due to some disease; that means, the tree had become dangerous not due to any act done by the District Board or by those who by law had been authorised to do "but by a third unknown factor. The rule "of law is that in such a case the defendant cannot be liable for the damage resulting from such a cause so long as the defendant has no knowledge or means of knowledge of its existence, iN (1940 A. C., 880) (L) the House of Lords approved the following statement of law by Salmond:-- -

"When a nuisance has been created by the act of a trespasser or otherwise, without the act, authority, or permission of the occupier, as where it is caused by a secret and unobservable operation of nature, the occupier is not responsible for that nuisance, unless, with knowledge or means of knowledge of its existence, he suffers it to continue without taking reasonably prompt and efficient means for its abatement."

In this case the only evidence relied upon by the plaintiffs to prove knowledge of the existence of the danger is the apprehension conveyel to the defendant in the letters written by the plaintiffs to the effect that other trees in the vicinity had fallen and there was likelihood that the tree in front of the house of the plaintiffs might also fall. I have already held that the apprehension of this kind cannot in law by itself be field sufficient for imputing knowledge on the part of the District Board to the effect that the tree was in fact standing in a dangerous condition. Further, the two report submitted to the defendant on the complaint received from the plaintiffs, one submitted by Sectional Officer and the other by the Engineer, clearly show that there was no such danger or nuisance. Therefore., it cannot be said that the District Board had the knowledge or means of knowledge of the dangerous condition in which the tree was standing or that in spite of that knowledge it allowed the nuisance to continue. In the case of Cunliffe y. Bankes, 1945-1 All E. R. 459 (Z 8), a tree growing on the defendants estate fell, owing to its diseased condition, across a highway running beside the estate. The plaintiffs husband was riding a motor cycle along that highway when, without any negligence on his part, he collided with the tree and died of his injuries. The plaintiff in that case thereafter based action on negligence and nuisance. Singleton, J. relying on Noble v. Harrison (1926) 2 K. B. 332 (J) held:--

"A person is not liable for a nuisance constituted by the state of his property unless (a) he causes it; or (b) by the neglect of some duty he, allows it to arise; or (c) when it has arisen without his own act or default, he omits to remedy it within a reasonable time after he became or ought to have become aware of it."

Similar was the law laid down in the case of (1926) 2 KB 332 (J). In that case a branch of a beech tree growing oh the defendants land overhung a highway at a height of 30 feet above the ground. In fine weather the branch suddenly broke, fell upon the plaintiffs vehicle, which was passing along the highway, and damaged it. In an action by the plaintiff claiming in respect of the damage to his vehicle, it was held that the mere fact that the branch overhung the highway did not make it a nuisance, seeing that it did not obstruct the free passage of the highway, and although the branch proved to be a danger the defendant was not liable inasmuch as he had not created the danger and had no knowledge actual or imputed of its existence. On the principles laid" down in those cases it is clear from the facts of this case that there was no negligence on the part of the District Board to make it liable in law for the damage arising from the fact that the tree was rooted out and fell on the premises of the plaintiffs.

(20) Then comes the last point raised by Mr. De that public bodies in India are not liable for acts of non-feasance, such as, negligence in the maintenance of roads causing loss or injury to persons using them or failure to cut down the trees in dangerous condition on the margin of the roads. So far as the question of negligence in the maintenance of roads in England is concerned, that has a history of its own and the rule of non-liability for non-repair of roads in that country is based mostly on that historical consideration. Bevan in his book on "Negligence" after discussing all the authorities on the question of liability of" statutory bodies for breaches of common law obligations sums up by saying: "The liability to repair in the case of highways and bridges, is an exception from the general law. At common law the remedy for want of repair in highways and bridges was not by suit against the surveyor or justices but by presentment or indictment against the country or against some individuals thereof for or in the name of all the rest." How far the same rule of non-liability for non-feasance arising from non-repair of roads vested in the Municipal Corporation is or should be applicable in India is not free from difficulties, though it cannot be denied that in a number of cases in India also this rule of law has been accepted as a matter of course. Here, however, we are not concerned with that limited aspect of the question. Mr. De, in this case has in support of his case enunciated the proposition in a much larger and extended form, that is, according to him, in no case public bodies in India are liable for acts of non-feasance and, therefore, also not liable for the negligence in cutting down the trees standing in dangerous condition on the margin of the roads. I on my part feel much hesitant to accept this broad proposition. I have carefully gone through a large number of English decisions on this point. What I find from them ia that barring the cases of highway authorities and sewerage authorities the . doctrine of non-liability for nOn-feasance had not been uniformly applied to other public bodies. No doubt in some cases the principle has been accepted and on the basis of those decisions Courts in India also have sometimes acted on them. They, however, do not, in my opinion, give clear guidance on the subject. Mr. De in support of his proposition laid reliance on the case of "Krishnamoorthi Aiyar v. Taluk Board of Mayavaram, AIR 1919 Mad 477 (Z 9). The judgment in that case was delivered by Seshagiri Ayyar J. In that case the Taluk Board acting under Section 95, Local Boards Act (5 of 1884) planted on both sides of the road certain trees whose branches spread over the land of plaintiff, who thereupon sued for an injunction directing the Board to lop off the branches. On a discussion of the entire case, the learned Judge dismissed the suit and held:

"In the present case, the Taluk Board on which an obligatory duty to plant and preserve trees has been imposed, are exempt from liability on both the grounds, namely (a) that in the discharge of its duties it has not acted carelessly or negiligently and (b) that the omission to remove the branches, even if it ought to have been done, is only non-feasance for which no action at the instance of a private individual lies."

In giving this finding the learned Judge was mostly influenced by the decision of Lord Russel of Killowen, C. J., in Tregellas v. London County Council, (1897) 14 T. L. R, 55 (Z 10) and also to some extent by the decision in Municipal Council of Sydney v. Burke, 1895 A." C. 433 (Z 11) and Earl of Harrington v. Derby Corporation (1905) 1 Ch 205 (Z 12). So far as the case in Municipal Council of Sydney v. Burke, (Z 11) is concerned, that is on the point of liability arising from non-repair of a highway. That, therefore, is not much helpful in supporting the wider proposition as suggested by Mr. De; The other case namely, Earl of Harrington v. Derby Corporation, (Z 12) could not be available to me. Therefore, I can say nothing about it No doubt the case in Tregellas v. London County Council, (Z 10) is exactly on the point. The decision in that case, however, is very short and in the body of the judgment no reference has been made to any authority. In the last portion therein the Lord Chief Justice held:

"After considering the cases on the subject he was of opinion that the defendants were not liable for an act of non-feasance and he therefore gave judgment for them,"

From the note of that case, however, it appears that Mr. Dickens appearing for the defendants therein laid reliance in. support on his proposition that the London County Council was not liable for non-feasance on the decisions in -- Cowley v. New Market Local Board, (1892) AC 345 (Z13); --Sanitary -Commissioners of Gibralter v. Orfila, (1890) 15 AC 400-(Z14); -- Municipality of Pictou v. Gelded, 1893 AC 524 (Z15); and -- Sannders v. Holborn Board of Works, (1895) 1 QB 64 (Z16). All these cases excepting that of -- Saunders v. Holborn Board of Works, (Z16), deal with liability for damages arising from non-repair of roads. They arc, therefore, as already stated above, not very help- fill to support the wider proposition as propounded by Mr. De. In the case of (1895) 1 QB 64 (Z16), the duty upon the Holborn District Board of Works for removing snow from the street was imposed by Section 29, Public Health (London) Act, 1891 (54 and 55 Vict. C. 76). "The second clause of that section provided that--

"If any such street in the district of any sanitary authority, including the footway, is not properly swept and cleaned, or the street refuse is not collected and removed from any such street, so far as is reasonably practicable, as is required by this section, the sanitary authority shall be liable to a fine not exceeding twenty pounds."

The decision, therefore, in that case is mostly based on the provision of fine provided in the clause quoted above. Because of that provision it was laid down therein that-

"In this case there is no indication of any intention on the part of the Legislature that such a liability should be imposed. The penalty not exceeding twenty pounds is the sole liability mentioned by the statute. Why should we infer that the Legislature had any intention of imposing a liability to action"

And on that ground the suit was dismissed. I, therefore, think that that case also is not a very direct authority on the point raised here. On the contrary, there are cases suggested in the note to have been cited in -- Tregellas v. London County Council (Z10), from the side of the plaintiffs which support that the doctrine of non-liability of a public body for non-feasance applies only to highway authority and sewerage authority. The important one of them is the case of --Gilbert v. Corporation of Trinity House, (1886) 17 QBD 795 (Z17), already referred to above. Therein the defendant was also a public body, namely, the Corporation of Trinity House, and the action was for negligently leaving an iron stump sticking up under water which caused damage to the ship of the plaintiffs. The first question raised therein was.

"Are the defendants liable to be sued at all in respect of injuries caused by reason of the negligent condition in which beacons, or the remains of beacons, vested in them are kept" .

In answer to that Day J., observed:

"I entertain no doubt whatever on the first point. The law is plain that whosoever undertakes the performance of, or is bound to perform duties -- whether they are duties imposed by reason of the possession of property, or by the assumption of an office, or however they may arise, is liable for injuries caused by his negligent discharge of those duties. It matters not whether he makes money or a profit by means of discharging the duties, or whether it be a corporation or an individual who has undertaken to discharge them. It is also immaterial whether the person is guilty of negligence by himself or by his servants".

With this opinion Wills J. agreed and on that basis the objection of the defendants raised on the first question failed. Some similar view appears to have been expressed in -- "Subramanyam v. District Board Narsapur, AIR 1941 Mad 733 [LQ/MadHC/1940/103] (Z18), though the point was not finally decided there. In that case the plaintiffs had brought the action for damages on account of the accident alleged to have been caused by the negligence of the defendants (District Board, Narsapur), which was responsible for the fall of a tree on a cart passing along the Narsapur Nidadavole Road, with the result that the wife and two small sons aged three and one year of plaintiff 1 were killed. The grievance of the plaintiffs was that the attention of the District Board had been drawn from time to time to the dangerous condition of some of the trees on this road and that they had taken no steps in spite of the complaints to cut down the trees. The District Hoard, amongst others, raised the, plea that the Board was not liable for any act of mere non-feasance. In answer to that question Horwill J., observed:

"In Municipal Council of Vizagapatam v. William Foster, AIR 1918 Mad 264 [LQ/MadHC/1917/231] (2) (Z19), which was a case in which mis-feasance had been committed by a local body, the learned Judges were invited to consider the law relating to the liability of local bodies for non-feasance; but Napier J., remarking that it was a difficult subject on which he would prefer not to express an opinion, declined to commit himself to any opinion on this question. He held that as there was a mis-feasance in that case the local body was liable. We too feel that in view- of the fact that the appellant has to fail on other grounds, it would be better if we do not express any opinion on this difficult question."

In coming to this conclusion the learned Judge had specifically taken into consideration the case of --Tregellas v. London County Council, (Z10), and as to that case the learned Judge observed:

"It is very doubtful, however, whether that decision is still good law; because the trees had no relation at all to a highway, and the decision seems to be based on a principle that was earlier accepted in one or two cases, mat local bodies were never liable for non-feasance. If trees growing on the margins of roads were in olden days in the charge of the vestry or hundred or justices, as they presumably then were, the same historic reason which exempts local bodies from liability for"

not repairing the road would probably exempt them from liability for not cutting down dangerous trees. But this is not at all certain. Trees are not planted on the margins of roads in England as they are in India. There people do not want trees which will shade them from the sun; on the contrary, they welcome the warming rays of the sun. No case has been brought to our notice dealing with the liability of local bodies in England to protect the users of road from injury by falling trees." In view, however, of the fact that the appeal has to be allowed on other points, already discussed above, and in view of the fact that the authorities, as stated above, are not uniform on this point, I propose not to give any concluded opinion on this aspect of the case.

(21) Before I leave the case, I should mention here that Mr. De tried to raise the point of vis major as well in appeal and in support of that contention laid reliance on the case of -- Nichols v. Marsland, (1876) 2 Ex D. 1 (720) and also on the case reported in AIR 1941 Mad 233. The question of vis major is a mixed question of fart and law and that now stands concluded by the finding given on -it by the Court of appeal. The finding on that point is:

"Having regard to all these circumstances and also in view of the fact that the tree fell down in an ordinary storm it must be held that the falling was not due to vis major and the defendant was in a position to avert the mischief even if they took a little care in the matter."

That being so, this argument is not now available in second appeal to Mr. De.

(22) In view, however, of my findings, which I have given on other points the appeal as already stated above has to be allowed and the judgments of the Courts below set aside with the result that the suit should stand dismissed.

(23) As for costs of this Court and of the Courts below, I think they should be borne by the respective parties themselves. The least that I can say in support of this part of the order is that the way in which the District Board showed indifference in taking proper action to remove the fallen tree from the premises of the plaintiffs was not in "any sense consistent with the responsibility of a body like the District Board which stands to serve the people and to contribute to their well being.