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Injury and damage are two basic ingredients of tort. Although these may be found in contract as well but the violations which may result in tortious liability are breach of duty primarily fixed by the law while in contract they are fixed by the parties themselves. Further in tort the duty is towards persons generally. In contract it is towards specific person or persons. An action for tort is usually a claim for pecuniary compensation in respect of damages suffered as a result of the invasion of a legally protected interest. But law of torts being a developing law its frontiers are incapable of being strictly barricaded. Liability in tort which in course of time has become known as 'strict liability', 'absolute liability', 'fault liability' have all gradually grown and with passage of time have become firmly entrenched. 'Absolute liability' or "special use bringing with it increased dangers to others"(Rylands v. Fletcher') and 'fault liability' are different forms which give rise to action in torts. The distance (sic difference) between 'strict liability' and 'fault liability' arises from presence and absence of mental element. A breach of legal duty wilfully, or deliberately or even maliciously is negligence emanating from fault liability but injury or damage resulting without any intention yet due to lack of foresight etc. is strict liability. Since duty is the primary yardstick to determine the tortious liability its ambit keeps on widening on the touchstone of fairness, practicality of the situation etc. In Donoghue v. Stevenson9 a manufacturer was held to be liable to ultimate consumer on the principle of duty to care. In Anns v. Merton London Borough Council1O it was, rightly, observed:

9. In between strict liability and fault liability there may be numerous circumstances in which one may be entitled to sue for damages. And it may be partly one or the other or may be both. In a welfare society construction 9 (1932) AC 562: 1932 All ER Rep 1 10 (1978)AC728:(1977)2 All ER492 of dam or bundh for the sake of community is essential function and use of land or accumulation of water for the benefit of society cannot be non-natural user. But that cannot absolve the State from its duty of being responsible to its citizens for such violations as are actionable and result in damage, loss or injury. What is fundamental is injury and not the manner in which it has been caused. 'Strict liability', 'absolute liability', 'fault liability' and 'neighbour proximity' are all refinements and development of law by English Courts for the benefit of society and the common man. Once the occasion for loss or damage is failure of duty, general or specific, the cause of action under tort arises. It may be due to negligence, nuisance, trespass, inevitable mistake etc. It may be even otherwise. In a developed or developing society the concept of duty keeps on changing and may extend to even such matters as was highlighted in Donoghue v. Stevenson9 where a manufacturer was held responsible for injury to a consumer. They may individually or even collectively give rise to tortious liability. Since the appellant suffered loss on facts found due to action of respondent's officers both at the stage of construction and failure to take steps even at the last moment it was liable to be compensated.

The Court preferred to rely on the principle developed by American Courts on canal breaks and applied the principle of 'fault liability' which may even be inferred from circumstances. The view of the High Court, therefore, that the rule of strict liability was modified by this Court in Modern CultivatorS2 does not appear to be correct. 'Absolute liability', or 'strict liability' and 'fault liability' do not go together.

13. With this background it may now be examined if the High Court, even after recording the findings in favour of the appellant, was justified in throwing out the suit because Article 36 is residuary article extending to all kinds of torts. The article as it stood at material time prior to 1963 read as under

These torts are often considered as of three kinds, viz., nonfeasance or the omission of some act which a man is by law bound to do, misfeasance, being the improper performance of some lawful act, or malfeasance, being the commission of some act which is in itself unlawful."

This extract was understood by the High Court as demarcating all violations either as 'ex delicto' or 'ex contractu'. But it was erroneous understanding of the decisions to hold that Article 36 was residuary article and applied to all tortious liabilities. The Court itself had taken care by using the word 'often'. Even in England where the law of torts has been developed demarcations have not been frozen so rigidly as has been attempted to be done by the High Court. Use of expression, "not herein specifically provided for" in Article 36 was to make it residuary article to such wrongs for which limitation was provided in the article but the interpretation placed by the High Court that it was exhaustive of all torts, was not in conformity with principle of interpretation nor the scheme and purpose of the enactment. This Court in National Bank case8 extracted the English principle to demonstrate that it was residuary provision to distinguish it from contractual obligations but it could not be narrowed down so as to be exhaustive of all torts. As explained earlier damages arising out of strict liability or duty to take care as was in Donoghue v. Stevenson' or public law duty may not be strictly covered ill these expressions. As has been explained earlier the damage was caused to the appellant not only because of negligence of officers but also because it was due to failure in discharge of public duty and mistake at various stages. Liability in tort may arise as observed by Salmond without fault. The basic ingredients of torts, namely, injury and damage due to failure to observe duty has been found to have been established. In the conservative sense it was negligence. But in modern sense and present day context it was not only negligence but mistake, defective planning, failure to discharge public duty. It was thus tort not in the narrow sense but in the broader sense to which Article 120 applied. The suit, therefore, could not be thrown out as it was filed beyond two years from the date the incident took place. The substantial question of law if Article 36 was exhaustive of all torts is thus answered in the negative. Further the rule in Rylands v. Fletcher' has not been modified by our Court in Modern Cultivators2. And the article of Limitation Act applicable to the facts of the case was Article 120 and not Article 36.