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The diverse contentions give rise to the questions:

whether the appellant-Corporation owes a duty of care to maintain the trees as a statutory duty and whether the cause of death of Jayantilal has proximate relationship with the negligence giving rise to tortious liability, entailing payment of compensation to the respondents? The marginal note of Section 66 of the Act indicates "Matters which may be provided for by the Corporation at its discretion". It envisages that the Corporation may in its discretion, provide from time to time, wholly or partly for all or any of the following matters, viz, (viii) "the planting and maintenance of trees of road-sides and elsewhere". Under Section 202 of the Act, all streets within the city vest in the Corporation and are under the control of the Corporation. The Act does not provide machinery for enforcement of obligations cast under Section 66, nor in the event of failure to discharge those obligations any remedy is provided. By operation of Section 202 read with Section 66, since the trees vest in the Corporation, the Corporation is statutorily obligated to plant and maintain trees on the road-sides and elsewhere as a public amenity to ensure eco- friendly environment. An attempt had been made in 1965 to codify the law of tort in a statutory form. The Bill in that behalf, reintroduced in the Parliament in 1967, died as still born. Therefore, there is no statutory law in India, unlike in England, regulating damages for tortious liability. In the absence of statutory law or established principles of law laid by this Court or High Courts consistent with Indian conditions and circumstances, this Court selectedly applied the common law principles evolved by the courts in England on grounds of justice, equity and good conscience (vide Ramanbhai Prabhatbhai's case). Common law principles of tort evolved by the courts in England may be applied in India to the extent of suitability and applicability to the Indian conditions. Let us consider and evolve our principles in tune with the march of law in their jurisprudence of liability on tort. It is necessary to recapitulate the development of the principles and law of tort developed by evolutionary process by applying them from case to case and in some cases the statement of law laid by House of Lords, as guiding principles of law on tortious liability. In the formative stage of the development of tortious liability, the Corporation being a Corporation aggregate of persons, could not be held liable where liability involved some specific state of mind as was held in Stevens vs. Midland Counties Railway [1854 (10) Ex.352]. However, it is now well settled that a Corporation can be held liable and accordingly it may be sued for wrongs involving fraud, malice, as well as for wrong in which intention is immaterial as was held in Barwick vs. English Joint Stock Bank [(1867) LR 2 Ex.259]; Cornford vs. Carlton Bank [(1900) 1 Queen's Bench 22]; and Glasgow Corporation vs. Loremer [(1911) AC 209].

In "The Modern Law of Tort, Landon, Sweet & Maxwell (1994 Edn.), K.M. Stanton has discussed the breach of statutory duty, express or inferential. He has stated at page 42 that the statutory tort takes a number of different forms. A number of modern statutes expressly create a detailed scheme of tortious liability. The conditions for the existence of a duty; the standard of conduct required and the available defences are all defined. The law created is part of the mainstream of tort liability. On inferential breach of statutory duty, he has stated that beach of statutory duty denotes a common law tortious liability created by courts to allow an individual to claim compensation for damages suffered as a result of another breaking the provisions of a statute which does not, on its face provide a remedy in tort. A tortious remedy is obviously available if a statute says that remedy may or may not be implied; if it is implied, it is said that the defendant is liable under the tort for breach of statutory duty. The most familiar example of this arises in relation to those areas of industrial safety legislation which have traditionally imposed criminal penalties upon an employer for breach of safety provisions, but have given no express tortious remedy to an employee injured by such a breach. Groves v. Lord Wilborne [(1884) 2 Q.B. 402] is a leading authority in support of that liability. At page 45, he has stated on "Inferring the tort of breach of statutory duty:

In Oversees Tankship (U.K.) Ltd. v. Morts Docks and Engineering Co. Ltd. [(1961) AC 388] Viscount Simonds, speaking for the Judicial Committee, had laid thus at page 425: "It is, no doubt, proper when considering tortious liability for negligence to analyse its elements and to say that the plaintiff must prove a duty owed to him by the defendant, a breach of that duty by the defendant, and consequent damage. But there could be no liability until the damage has been done. It is not the act but the consequences on which tortious liability is founded for tort. It is vain to isolate the liability from its context and to say that B is or is not liable and then to ask for what damages he is liable. For his liability is in respect of that damage and no other. If, as admittedly it is, B's liability (culpability) depends on the reasonable foreseeability of the consequent damage, how is that to be determined except by the foreseeability of the damage which in fact happened - the damage in suit?"

Therefore, there must exist some proximity of relationship, foreseeability of danger and duty of care to be performed by the defendant to avoid the accident or to prevent danger to person of the deceased Jayantilal. The requisite degree of proximity requires to be established by the plaintiff in the circumstances in which the plaintiff was injured. The plaintiff would not succeed by establishing that the accident had occurred due to negligence, i. ., the defendant's failure to take reasonable care as ordinary prudent man, under the circumstances, would have taken and the liability in tort to pay damages had arisen. If the defendant had become aware of the decayed condition or that the tree was affected by decease and taken no action to prevent the accident, it would be actionable, though for non-feasance. Here appearance of danger gives rise to no liability. Actual damage had occurred before tortious liability for negligence arose. When the defendant is under statutory duty to take care not to create latent source of physical danger to the property or the person who in the circumstances is considered to be reasonably foreseeable as likely to be affected thereby, the defendant would be liable for tort of negligence. If the latent defect causes actual physical damages to the person, the defendant is liable to damages for tortious liability. The negligent act or omission of the statutory authority must be examined with reference to the statutory provisions, creating the duty and the resultant consequences. The negligent act or omission must be specifically directed to safeguard the public or some sections of the public to which the plaintiff was a member, from the particular danger which has resulted.