1. The finding of the lower appellate Court in this case is that the plaintiff has erected the balcony in dispute contrary to an order issued by the Municipality under a bye-law framed under the Bombay District Municipal Amendment Act (Bombay Act II of 1884).
2. It is contended (or the plaintiff in this second appeal that as the balcony abuts on a private, not a public, street, the Municipality has no right to interfere with it. It is admitted for the Municipality that the building of which the balcony is a part abuts on a private street. The balcony is a projection of the building and must be taken to be a part of the building itself. 'A projection from a building means a part of a building projecting or jutting out; it means a prominence extending from building in the sense of coming out from the building as part of the building:' per Bruce, J., in Hull v. London County Council (1901) 1 K.B. 580 . The only question, therefore, is whether the order was within the jurisdiction of the Municipality under the provisions of the Bombay District Municipal Act of 1873. Mr. Justice Batty has held that it was not. Mr. Justice Aston has taken the contrary view. The second appeal has, under these circumstances, been referred to me for disposal under Section 575 of the Code of Civil Procedure.
3. The contention of the Municipality is that its order 'falls properly within Section 33 of the Act. The first clause of that section says: 'Before beginning to erect any building, or to alter externally or add to any existing building, the person intending so to build, alter or add, shall give to the Municipality notice thereof in writing.' By such notice he is required, among other things, to furnish to the Municipality 'all information they may require regarding the limits, design, and materials of the proposed building.' Clause 2 of the section says that 'within one month after receiving such notice the Municipality may in writing issue such order not inconsistent with this Act as they think proper with reference to such building.' Clause 3 says that if any person erect such building 'without the notice, or without affording the information above prescribed, or in any manner contrary to the legal orders of the Municipality issued within the period above said or in any other respect contrary to the provisions of this Act,' he shall be liable to a certain penalty and 'the Municipality may, by written notice, require such building to be altered or demolished as they may deem necessary.'
4. Reading the whole of this section by itself, and having regard to its general terms, it is clear that the Legislature has given to every Municipality the power to regulate the construction of buildings, whether they abut on a public or a private street. The power may be exercised as the Municipality 'think proper,' which means that it should be exercised, not capriciously or arbitrarily, but reasonably Rex v. Wilke (1770) 4 Burr. 2527 ; Marshall v. Pitman (1833) 9 Bing. 601, provided the order is 'not inconsistent with the provisions' of the Act. In construing Section 33 a good deal turns upon the meaning of the words 'not inconsistent with the provisions' of the Act. To that I will address myself presently, but it is clear that if the action of the Municipality taken under the section is not inconsistent with the provisions of the Act, it will be legal provided id is reasonable. The question what is a reasonable exercise of such power must depend upon the character of the body acting on the delegated authority of the Legislature, upon the subject-matter of such legislation, and the nature and extent of the authority given to deal with matters which concern it. As observed by Lord Russell of Killowen, C.J., in Kruse v. Johnson (1898) 2 Q.B. p. 91 which has been approved in subsequent decisions, as an instance of which . I may cite Gentel v. Rapps (1902) 1 K.B. 160, if the bye-laws of a public representative body ' were found to be partial and unequal in their operation as between different clauses; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say: 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires. But it is in this sense, and in this sense only, as I conceive, that the question of unreasonableness can properly be regarded. A bye-law is not unreasonable merely because particular Judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by qualification or an exception which some Judges may think ought to be there. Surely it is not too much to say that in matters which directly and mainly concern the people of the county, who have the right to choose those whom they think best fitted to represent them in their local Government bodies, such representatives may be trusted to understand their own requirements better than Judges.' I have made this citation from the judgment of the late Lord Chief Justice of England because the action of the Municipality, which is complained of as illegal in this case, was taken under a bye-law made by it under Section 33, Clause (e), of the Bombay District Municipal Amendment Act, 1884, which empowered it to make bye-laws consistent with that and the principal Act with the previous sanction of the Governor in Council, 'generally for the regulation of all matters relating to municipal administration.'
5. Section 33, then, read by itself must be construed as giving power to the Municipality to regulate the erection of all buildings, whether abutting on a public or a private street. The first limit to the exercise of that power is that it should be exercised reasonably. Clause 2 of the section provides another limit, which is that it should be exercised in a manner 'not inconsistent with this Act.' Clause 3 requires that the exercise of the power should be either 'legal' or not 'countrary to the provisions' of the Act. Those are the only limits to the exercise of the power. If any one erects a building 'in any manner contrary to the legal orders of the Municipality or in any other respect contrary to the provisions' of the Act, the Municipality may under Clause 3 by written notice require him to alter or demolish the building, 'as they may deem necessary.' It follows, then, that if an order is contrary to or inconsistent with the provisions of the Act, it cannot be legal.
6. The first question then is, is the order issued by the Municipality a violation of any general law? The general law is that no man should be hindered in the exercise of any of his private rights, unless the Legislature has by any enactment taken away the right or put a limit to its exercise. Has the Legislature put any such limit to the right of a man to build as he likes? The answer to that depends on the question, what is the character of the body which has passed that order; with what) object was it created; what is the subject-matter of the statute which created it and gave it that character; and with what powers did the Legislature arm it? It is a public representative body, created for the purposes of public health and sanitation; the Act gives it the power of regulating the erection of buildings towards that end; the Act, moreover, has armed it with the power of making rules or bye-laws for giving effect to that power. Now the law as to the interpretation of such Acts and bye-laws framed under them has been explained by Lord Russell of Killowen, Chief Justice, in the judgment to which I have already referred, and that law, to quote his words, says that in the case of such a body its rules 'ought to be supported, if possible. They ought to be, as has been said 'benevolently' interpreted, and credit ought to be given to those who have to administer them that they will be reasonably administered. This involves the introduction of no new canon of construction.' It is true that Section 33 does not in so many words say expressly that a Municipality has the power of preventing a man from erecting a building beyond certain limits. We have to infer that power from the terms of the section and the power given to regulate the erection of any building; and the inference must be drawn only if it is justified by the terms and is not against the argument of reasonableness and common justice. 'When you are asked to infer a thing, I think the argument of reasonableness has, and ought to have, very great weight. What has sometimes been called the argument of common justice ought also to have great weight: you are not to infer an alteration of the general law if that alberabion be against common justice: it would require very strong words to lead to such an inference. I say that, because that must be a consideration in reading enactments' (per Jessell, M. R., In re Pigot and The Great Western Railway Co. (1881) 18 Ch. D. 146 . Construing Section 33 by the light of this canon of construction it would perhaps be unjust to infer from it that the Legislature intended to alter the general law by empowering a Municipality to prevent a man arbitrarily from building on his own land-that would be unreasonable and against common justice; but it is neither unreasonable nor against such justice to infer that the Legislature intended to alter that law in the interests of public health and sanitation by empowering the Municipality to control the erection of buildings in a reasonable manner. The terms of the section are wide enough to justify that inference. The only limit to the power given in such cases, then, by Section 33 is that prescribed, firstly, by the general law that all such power should be exercised reasonably, not capriciously, and, secondly, by the section itself that it should not be in-consistent with or contrary to the provisions of the Act itself.
7. That the Municipality has exercised the power unreasonably has not been contended in this case. The argument for the plaintiff is that the power is inconsistent with and contrary to other provisions of the Act itself. The first provision of the Act which is relied upon as negativing the power of the Municipality is Section 42. The argument based upon that section is that, as the Legislature has expressly provided against encroaohments on public streets by giving a Municipality the power to remove them, it must be taken to have denied similar power as to encroahments on streets which are not public. At first sight I was much struck by the force of the argument, especially because under Section 42 if an encroachment be made on a public street in the shape of a building or otherwise either overhanging the street or projecting into it, the Municipality can have it removed and may, in its discretion, give compensation to the person who made the encroachment lawfully. If the Legislature intended to give similar power as to other encroachments, why has it not said so? Would it have left the power to be given by the general terms of Section 33 without providing for compensation in terms similar to those in Clause 2 of Section 42? The argument is, however, plausible. Before we infer that the affirmative enactment in Section 42 carries with it the implied negative as to Section 33, and that, therefore, an inconsistency will arise between the two sections if we construe Section 33 as giving the power to a Municipality to define the limits of a building abutting on a street which is not public, we must see what is the object and scope of each of the two sections and the mischief which each was intended to strike at. If both deal with the same subject-matter, then it may perhaps be fair to argue that we must avoid a construction of Section 33 which will conflict with Section 42 and that the principle expressum facit cessare taciturn must apply. But do they deal with the same subject-matter? Section 42 relates primarily to encroachments upon or obstructions to public streets, not to buildings. A building may be an encroachment or obstruction, but that is only an incident, so far as this section is concerned. The thing dealt with or intended to dealt with as the principal subject-matter of the section is an encroachment or obstruction on a public street. The Legislature says none shall encroach upon or obstruct public streets if the Municipality to desire it. These streets are municipal property, being vested in the Municipality under Section 17. The Legislature says that the Municipality shall have the power to say that no one can have the right to encroach upon or obstruct them, because they belong to the Municipality. The mischief intended to be struck at, is interference with the ownership of the Municipality. Section 33 deals with a different thing altogether. It deals primarily with the erection of buildings, not with encroachments or obstructions. A building may be an encroachment or obstruction, but it is not because it is such that it falls within Section 33. Its character as an encroachment or obstruction is only incidental. The mischief intended to be struck at by Section 33 is that arising from the erection of buildings without proper regard to public health and sanitation. To prevent that mischief the Legislature says that the Municipality has the right of regulating the erection. The subject-matter, the object and the scope of Section 42 are different from those of Section 33, and therefore there can be no inconsistency or repugnance between them.
8. Section 42 being, then, out of consideration, are there any other sections in the Act which are inconsistent with and contrary to the construction which, I think, the words and spirit of Section 33 justify being put on it? Mr. Justice Batty has answered the question in the affirmative. He relies upon Sections 25, 28, 29, 30 to 32, 35 to 43 and 43. Section 25 empowers Government to acquire land under the Land Acquisition Act or other existing law and vest it in the Municipality. It cannot have any bearing on the right of the Municipality to control the erection of buildings. So also Sections 28 and 29, which deal with the power of a Municipality to lay out new public streets, &c.; Section 30 relates to buildings which project into a public street, and empowers a Municipality to take possession of so much of the space occupied by them as can bring it into the regular line of the publics street) when the building has bean taken down or burned or fallen down. This Section is only a reiteration of Section 42, except that under Section 42 the Municipality may have the projection removers suo motu, whereas under Section 30 the removal contemplated is the result of an act of the owner or an accident. It does not help us in the construction of Section 33. It is said, however, that there is a connection between Section 33 and Sections 30 to 32 in this way: Section 33 requires that a person who begins to erect a building shall give information to the Municipality regarding its level, limits, design and materials; Section 30 points out the limits; Section 31 the materials; and Section 32 its level. But as to Section 30, the object is to widen public streets and bring the buildings abutting on them in a regular line. Section 33 deals with the limits of any building whether it abuts on a public street or not. If the object of getting information regarding the limits of a proposed building under Section 33 were confined to that of Section 30, where was the necessity of Section 33 at all? The Legislature had already provided by Section 30 and Section 42 for buildings projecting into public streets; there was then no occasion for an additional section empowering the Municipality to require information regarding the limits of other buildings. The Legislature would have in that case restricted Section 33 to the class of buildings contemplated by Sections 30 and 40. Then again, if Sections 31 and 32 were framed with special reference to 'the materials' and 'the level' of a proposed building dealt with in Section 33, why did the Legislature, after particularly prescribing in Section 32 the proper level upon which a house or building should be built, go on to say in Section 33 that the person building should give information 'showing the levels at which the foundation and lowest floor of such building are proposed to be laid by reference to some level known to the Municipality'? The level pointed out in Section 33 is not necessarily the level pointed out in Section 32. Section 34 related to the regulation of huts, and Section 35 to the danger from overcrowded or badly drained huts or sheds used as dwellings or stables or for other purposes. The provisions as to huts are, no doubt, move specific than the provision in Section 33 as to buildings, but it is obvious why the Legislature was more particular about the one than about the other. The danger from huts is greater than from buildings, and therefore the discretionary power given as to the former has been particularised. All that can be inferred from that is that the discretionary power given as to huts was perhaps intended to be wider than that given as to 'buildings'; but it cannot be inferred that there is no discretionary power at all as to the latter. It may be for instance, that as to buildings the Municipality cannot require that they should stand in regular lines, &c.;, and that they should not be overcrowded as they can in the case of huts. It is only to that extent that the argument based on the sections as to huts can go; but it cannot go the length of denying all discretionary power as to buildings under Section 33; and if that section gives some discretionary power, the question is 'what is its extent V' which must be decided, as I have said, by reference to the question of reasonableness. I pass on then to the sections in the Act (36, 37, 41) which relate to 'buildings' in general, whether they abut on public or private street. It is these elections which seem to create 'some difficulty and to support the view taken by Mr. Justice Batty. These are sections which empower the Municipality to require the owners of buildings to provide for them privies or cesspools and sufficient drainage. It is argued that the specific mention of these powers implies the exclusion of power to control the erections of buildings with reference to other matters. Bat when a statute gives by one section discretionary power in general terms as to buildings and says that the exercise of that power should be consistent with the provisions of the statute, and in other sections it mentions specifically cases where that power may be exercised, does it necessarily follow that the power given by the former section is exhausted by, and the exercise of it in other cases is inconsistent with, the latter? I do not think it is. Two things are inconsistent with each other if they cannot stand together. Before, therefore, one section in an Act can be said to be inconsistent with another, they must be mutually contradictory. The Municipal Act generally gives power to a Municipality to regulate the erection of all buildings. It also says that the exercise of that power shall be consistent with the provisions of the Act. Then it goes on to provide that the Municipality may order particular things with reference to those buildings. It also gives the Municipality power to make bye laws, not inconsistent with the Act, 'relating to municipal administration.' In virtue of this power to make bye-laws the Municipality makes certain rules empowering it to order other things than those specified in the Act itself. The bye-law ordering these other things can be repugnant to or inconsistent with the Act only if it alters and thereby contradicts the Act. 'A bye-law is a local law, and may be supplementary to the general law; it is not bad because it deals with something that is not dealt with by the general law. But it must not alter the general law by making that lawful which the general law makes unlawful; or that unlawful which the general law makes lawful per Channel, J., in White v. Morley (1899) 2 Q.B. 34 . Applying that principle here, the principal Act says that it shall be lawful for the Municipality to require the owner of a building to provide a privy or cesspool and sufficient drainage for it (Sections 30 and 37). That is the general law; any bye-law which said that it shall be unlawful would be bad because repugnant. But the bye-law in the present case says nothing of the kind. It relates to other things than privies, cesspools, or drainage. No doubt it relates to 'buildings,' and Sections 36 and 37 of the Act also relate to them. But does that create any repugnancy between the two-between the bye-law and the sections in the Act? It cannot, because the real subject-matter of the sections in the principal Act is different from the real subject-matter of the bye-law-they do not deal with the same case. In White v. Morley (1899) 2 Q.B. 34 which I have above cited and which was approved in Thomas v. Sutters (1900) 1 Ch. 10 by Section 23 of the Metropolitan Streets Act, 1867, it was provided that any three or more persons assembled together in any part of a street for the purpose of betting shall be deemed to be obstructing the street and each of them shall be liable to a penalty. A bye-law made by the London County Council provided that no person should frequent and use any street or other place for the purpose of betting under a penalty. It was contended that the bye-law was repugnant to the Act, because Section 23 had provided for the very thing at which the bye-law aimed, viz., betting and obstruction of the streets. Darling, J., said: 'The question is whether this statutory enactment and this bye-law do deal with the same case. I do not think they do. It is true that they both deal with betting and that they both deal with obstruction of the streets. But that) which is punishable under the one is not punishable under the other.' So here, though the bye-law under Section 33 deals with 'buildings,' which are dealt with also by the principal Act in certain sections, the particular things relating to buildings dealt with in the latter are different from the particular things relating to the same dealt with in the former. There can, therefore, be no inconsistency between the two, because the one does not contradict the other. We must then see whether the mention of particular things in the sections of the Act relating to buildings carried with it 'the implied negative' as to other things, relating to the same but not mentioned in the Act itself, on the principle of expressio unius est exclusio alterious. Before applying that principle we must bear in mind the observations of Lord Campbell in Bostock v. N. Staffordshire Railway Co. (1855) 4 E. &. 832 with reference to statutes relating to a canal Company: 'In construing instruments so loosely drawn as these local Acts, we can hardly apply such maxims as that 'the expression of one thing is the exclusion of another' or that 'the exception proves the rule.' In Thames Conservators v. Smeed Dean and Co. (1897) 2 Q.B. 334 Chitty, L.J., (Lord Esher, M.R., concurring) declined to apply the rule of expressum facit cessare taciturn to the Thames Conservancy Act, because it was 'not a specimen of good drafting' and 'many instances occur of a departure from the cardinal rule that the same words should always be employed to mean the same thing.' The Bombay Municipal Act, 1873, is not, I venture to say, a specimen of good drafting and the remarks of Chitty, L.J., apply to it in some respects. In construing the Acts relating to a Municipality we must have regard to their object and policy and construe the sections so as to effectuate the intention of the Legislature to better provide for public health and sanitation. If the language of a section of the Act may fairly apply to many different cases and only some cases are specified in other sections, it is not straining the language and meaning of the Act if bearing in mind its object we infer that the cases specified are by way of example only and not as excluding others of a similar nature.
9. Such a construction of the Act ought indeed not to be adopted if there is warrant for saying that the Legislature has prohibited the Municipality from doing what it has not expressly authorized. And that seems to be the principle of law on which Mr. Justice Batty's judgment proceeds. He has among other decided cases, relied upon the authority of the decision of the House of Lords in London County Council v. Attorney-General (1902) A.C. 165. There the London County Council bought from the London Tramways Company their tramway, &c.;, and worked the tramways and ran the omnibuses. The Attorney-General brought the action complaining that the Council had no power to run omnibuses and to spend the ratepayers' money for that purpose. It was contended for the Council that it had the power because Section 31 of the London Tramways Company Act, 1896, had authorized it to buy the tramways and 'any works and property connected therewith,' i.e., the omnibuses and horses, &c.; and also because Section 2 of the Act impliedly authorized the Council to work the omnibus traffic. Lord Macnaghten in his judgment puts very tersely the ground upon which the decision went against the contention of the County Council. He says 'The London County Council are carrying on two businesses--the business of a tramway company and the business of omnibus proprietors. For the one they have the express authority of Parliament; for the other, so far as I can see, they have no authority at all. It is quite true that the two businesses can be worked conveniently together; but the one is not incidental to the other.' I fail to see how a power given to a Municipality to regulate the erection of buildings stands on the same footing as a, power given to it to carry on a business. A municipal body is created for the purposes of sanitation and public health; carrying on any business is not its object. Where, therefore, the Legislature empowers it to carry on a particular business, it can carry on that business only, not any other. The power to carry on business must be construed strictly and limited to what is expressly allowed. But the case stands otherwise where the interests of health and sanitation are concerned. There the power must be 'benevolently' interpreted and supported if the terms in which the power is given justify either in express language or by necessary implication such interpretation. In the decision of the House of Lords just cited, the Earl of Halsbury, L.C., referred to the case of the Ashbury Railway Carriage and Iron Co. v. Riche (1875) L.R. 7 H.L. 653 and Attorney General v. Great Eastern Railway Co. (1880) 5 A.C. 473 as laying down the law on the subject. In this latter case Lord Blaokburu, speaking of the former, says: 'That case appears to me to decide at all events this, that where there is an Act of Parliament creating a corporation for a particular purpose, and giving it powers for that particular purpose, what it does not expressly or impliedly authorize is to be taken to be prohibited; and consequently that the Great Eastern Company, created by Act of Parliament for the purpose of working a line of railway, is prohibited from doing anything that would not be within that purpose.' The words in this citation which I have italicised are important. They show that when we have to decide whether a certain power is within the competence of a statutory body, we must look to the particular purpose for which it is created and sea whether the power is impliedly given, if it is not expressly mentioned in the statute. Then Lord Blackburn goes on to say: 'I quite agree with what Lord Justice James has said on this first point as to prohibition, that those things which are incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within if, would not be prohibited.' Lord Selborne in the same case puts it thus: 'It appears to me to be important that the doctrine of ultra vires, as it was explained in that case. i.e., Ashbury Railway Carriage and Iron Co. v. Riche (1875) L.R. 7. 653 should be maintained. But I agree with Lord Justice James that this doctrine ought to reasonably, and not unreasonably, understood and applied, and that whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorized, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires.' Applying these principles to the present case, the Municipal Act gives the Municipality She power to regulate the erection of buildinge; the main purpose, then, is their control by the Municipality. The power has, according to the Act, to be exercised in a manner not inconsistent with its provisions or in a manner not contrary to them, i.e., in the spirit of those provisions. The words used by the Legislature indicate that the power includes something which is not expressly mentioned in the provisions of the Act. Had the Legislature intended to confine the powers given to a Municipality in respect of buildings to those specifically mentioned in the Act, the language used in Clauses 2 and 3 of Section 38 could have been different from that actually employed by the Legislature. In that case the Legislature would have taken care to say that the Municipality shall issue orders 'in accordance with the provisions of this Act,' instead of saying that they shall not be inconsistent with or contrary to them. Impliedly, therefore, the Act authorizes the Municipality to regulate the erection of buildings beyond controlling them in the manner specially provided by Sections 36, 37 and 41.
10. I have so far discussed the question by confining myself to the Act itself and my reading of it is that Section 33 gives a general power to the Municipality to regulate the erection of buildings which is not confined to the particular provisions of the Act relating to them. As to the decided cases of this Court, to which reference is made in the differing judgments, it was conceded at the Bar before me that none of them except one exactly touched the point which has arisen in this case. I do not, therefore, propose to deal with the authorities referred to in the judgments of Batty and Aston, JJ. The one case which does touch. the point but which, I understand, was not cited before Batty and Aston, JJ., is that of the Municipality of Thana v. Faza Karim (1901) 3 B L R 842. It is a direct authority in support of the construction which I think should be put upon Section 33 of the Bombay Municipal Act of 1873. It was held there that a Municipality, in granting permission to a person to erect his building, could legally impose, under Section 33, a condition that he should leave a gully of a certain dimension. Mr. Justice Candy in delivering the judgment in that case said: 'Then Mr. Chaubal argued that there is nothing in the Act empowering a Municipality to make a passage over which the public have no right of way. But there is nothing in the Act forbidding such a thing. The intention of the Act is clearly to make the Municipality trnstees for the public, especially in all sanitary matters. The Municipality by their notice of 12th May asserted that their object in requiring a gully was for the sanitary purposes of light and air; and there is nothing to contradict their allegation. If they can require all information regarding the limits, &c;, of the proposed building (Section 33, Clause 1) there is nothing inconsistent with the Act in an order limiting the extent of the building in such a way as to provide a narrow gully.'
11. The result is that, in my opinion, the plaintiff has failed to show that the action of the Municipality of which he complains is illegal and ultra vires.
12. It was contended before me that, assuming the Municipality had power to issue the order complained of, the plaintiff had not acted contrary to that order, because the order was that he should build his house leaving five feet space from the wall of his eastern neighbour. Both the Courts below have held that the plaintiff has built contrary to the specific orders of the Municipality. No such contention as is now raised before me was clearly set up before them, nor can I say that the Courts below have misconstrued the order.
13. For these reasons, agreeing with Mr. Justice Aston in his view of the law, I confirm the decree appealed against with costs on the appellant.