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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:

"[T]he broad general principle of liability for foreseeable damage is so widely applicable that the function of the duty of care is not so much to identify cases where liability is imposed as to identify those where it is not........"

Truly speaking entire law of torts is founded and structured on morality that no one has a right to injure or harm others intentionally or even innocently. Therefore, it would be primitive to class strictly or close finality (sic finally) the ever-expanding and growing horizon of tortious liability. Even for social development, orderly growth of the society and cultural refineness, the liberal approach to tortious liability by courts Is more conducive.

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 words are undoubtedly of very wide import. They are strong expressions as well. Malfeasance and nonfeasance bring into motive, intention, malice etc. Law of torts, however, is not confined and cannot be strictly categorised. Where the State undertakes common law duty its actions may give rise to common law tort. Negligence in performance of duty is only a step to determine if action of Government resulting in loss or injury to common man should not go uncompensated. If construction of bundh is a common law or public duty then any loss or damage arising out of it gives rise to tortious liability not in the conservative sense but certainly in the modem and developing sense. A common man, a man in the street cannot be left high and dry because wrongdoer is State. The basic element of tort is duty. And that comes into play fully when there is a common law duty. Since construction of bundh was a common law duty any injury suffered by a common man was public tort liable to be compensated. Can it be said to be covered in the expressions used in Article 36? Malfeasance and misfeasance necessarily import intention, knowledge and malice, therefore, they may not be available in every tortious liability arising out of violations of public duty. Evil doing or ill conduct postulates something more than mere omission or commission. Misfeasance is now recognised as imputable to discharge of duty arbitrarily. In Calveley v. Chief Constable of the Merseyside Policel3 it was held that for the tort of misfeasance it was necessary that the public officer must have acted maliciously or with bad faith. In Dunlop v. Woollahra Municipal Council14 it was held that without malice the claim for misfeasance could not be accepted. Non-feasance on the other hand is omission to discharge duty. But the omission to give rise to action in torts must be impressed with some characteristic, namely, malice or bad faith. The expressions 'malfeasance', 'misfeasance' and 'nonfeasance' would, therefore, apply in those limited cases where the State or its officers are liable not only for breach of care and duty but it must be activated (sic actuated) with malice or bad faith. The defective planning in construction of a bundh, therefore, may be negligence, mistake, omission but to say that it can only be either malfeasance, misfeasance and nonfeasance is not correct. Observations in Bhayaji6 to the following effect, "The words 'malfeasance, misfeasance, or nonfeasance independent of contract' used in Article 36, are of the widest import, and embrace all possible acts or omissions, commonly known as torts by English lawyers; that is to say, wrongs independent of contract."