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5. The appellants resisted the Suits by filing a Written Statement. It was contended on their behalf that they were not liable for payment of compensation or damages either jointly or severally, because the students have lost their lives on account of collapse of the School building, in the wake of the earthquake which took place in various parts of the State of Gujarat, and the City of Ahmedabad. It was further contended that the earthquake was a natural calamity or Vis major (Act of God). It was pervasive all over the State of Gujarat, and it was not in human hands to defend anything against an earthquake of such magnitude. The allegation regarding use of poor and sub-standard material in the construction of the building, was denied and it was asserted that the appellants are not guilty of any negligible act. It was contended that appellant No.1-Trust came into existence in the year 1990 and had constructed another School building, being Swaminarayan School No.1, located in Plot No.1, opposite Cadila Laboratory, Ghodasar, in the year 1988-89, which is still in good condition. This building had also been constructed by Shivam Corporation (defendants Nos.5 to 8), who have constructed the building that has collapsed. That the construction of the collapsed building was completed in May 2000, and defendants Nos.9 and 10 were the Civil Engineer and Structural Engineer concerned, respectively. It was denied that the School building collapsed on account of negligence on the part of the appellants, or that the material used was sub-standard or of poor quality. However,it was admitted by the appellants that no Building Use Permission had been taken before the building was constructed; and that the Plans were placed before the concerned authorities in April 1999 and were sanctioned in July 1999. Thereafter, construction was commenced, which was completed in May 2000. It was asserted that more than one year's time was taken to complete the School building and not two and a half months,as alleged by the plaintiffs. It was also contended that defendants Nos.9 and 10 visited the site for inspection, as per bye-laws. It was stated on behalf of the defendants that the Government had given an amount of Rs.1,10,000/- to the parents of the deceased. Immediately after the incident, the defendants and Trustees rushed to the site where rescue operations were going on. However, as the School building collapsed due to a natural calamity, the appellants are not liable, either jointly or severally, to pay any compensation or damages.

(c) The appellants have not been negligent or careless in the construction of the School building, and it is mentioned in the Report of the NCCBM, that the materials used were of good quality.

(d) Considering that the earthquake was an Act of God, which could not have been prevented or controlled by the appellants, the fact that Building Use Permission was not obtained before starting the School, has no relevance, as obtaining such permission could not have prevented the earthquake.

(e) The human element or mens rea is absent in the collapse, and there was no ill intention on the part of the appellants, who had entrusted the construction of the building to persons experienced in the business of construction. The earlier School building constructed by Shivam Corporation, in the year 1988-89, is still intact and did not suffer any damage whereas, unfortunately, the new School building collapsed in the wake of the earthquake. Liability for payment of compensation and damages on account of the collapse of the School building, cannot be foisted upon the appellants as the tragedy occurred due to an Act of God.

24. Further, it is not the defence of the appellants that all buildings in the nearby or surrounding area have collapsed on account of the earthquake. On the contrary, it is contended that another old building constructed by the appellants has not collapsed. Hence,the present incident of collapse of a newly-constructed building cannot be treated as a usual or normal consequence of the earthquake. In normal circumstances a newly-constructed building ought not to have collapsed, as one can legitimately expect that a newer building will have more strength than an older one. The circumstances of collapse of the building in question when other buildings have remained intact, can be said to be unusual and may, therefore, fall in the ambit of res ipsa loquitur (thing speaks for itself).

The defence of the appellants that the building collapsed due to an "Act of God" would not come to their aid, as the burden of proof would be shifted upon the appellants to prove that all necessary and reasonable care was taken in the construction of the building, and all statutory requirements for construction and use of the building, were complied with and satisfied. It is only after discharging this burden of proof that any benefit of an "Act of God" could be available to the appellants, in order to avoid tortious liability; otherwise such a defence cannot be accepted as a valid one. In the present case, looking to the material on record, it cannot be said that the appellants have been successful in discharging this burden of proof. Therefore, the defence of Vis major or "Act of God" is not available to them.