1. This is a most unfortunate controversy between the petitioner company and the Municipal Corporation of the City of Ahmedabad. It is really a matter of regret that the matter should have come to Court and the matter should have been contested by both the petitioner company and the Municipality. It appears that the petitioner company submitted plans for construction of nine buildings.
The buildings were sheds near Weigh Bridge, extension to Drawing in Department, R. C. C. Slab and Bobbin Room, Loft over Grey and Sin-gening Beam Store attached to Winding and Warping, Dining Shed attached to 'B' Spinning, Cloth Godown Extension, Humidity Ducts and Fan Room for Spinning, and Cheese Dyeing Department Extension, and various requisitions which were made by the Ahmedabad Municipality were complied with.
But notwithstanding the compliance by the petitioners of these requisitions, the Municipality refused sanction to the petitioners to construct these buildings and the petitioners have come to this Court for a mandamus upon the Municipal Corporation and the Municipal Commissioner of the City of Ahmedabad to give the sanction to the plans they have submitted.
2. in the first place, a preliminary objection is taken by the Advocate-General on behalf of the respondents that there has been considerable delay in filing this petition. It is pointed out that with regard to the 9th structure the permission wag refused by the Municipality on 5-3-1954, withregard to structures 1 to 6 the permission was refused on 20-9-1954.
With regard to the 7th structure the permission was refused on 27-9-1954, and with regard to the 8th structure the permission was refused on 29-11-1954, and the present petition was only filed on 15-4-1955, and the Advocate-General says that therefore there has been considerable delay which ought to disentitle the petitioners to any relief from this Court.
Now although the permission was refused by the Municipal Corporation, on 16-2-1955 the petitioners very rightly called upon the Municipal Corporation to tell them if they wanted any drainage to be constructed with regard to these buildings which they proposed to construct, and as we shall presently point out, the real point in this controversy between the Municipality and the petitioners is the question of erecting drainage.
The answer to this letter was given by the Municipality on 12-3-1955 and the answer was that no final decision had been arrived at in respect of the petitioners' application and the matter was under consideration, and they were further told that until the matter was finally disposed of no work should be carried out in their mill without permission.
It is impossible to expect the petitioners to have come to Court even after receipt of this letter because it would have been legitimate on the part of the Ahmedabad Municipality to call upon the petitioners to carry out certain drainage work under Section 171, Bombay Provincial Municipal Corporations Act, which we shall presently consider, and till they finally heard from the Municipality as to the reason why their application for constructing these buildings was refused they could not come to this Court, and this only happened on 30-3-1955 when the Municipality finally turned down their application and gave them reasons which depended upon their construction of Section 171 of the Act.
As their construction did not conform to the construction put upon the section by the petitioners, the petitioners came to this Court on 15-4-1955. In our opinion, therefore, there is no delay in this case which would disentitle the petitioners from maintaining this petition.
3. On the correspondence it is clear that the respondents never at any time suggested that any of these nine buildings which the petitioners proposed to construct required any drainage. Indeed it has been the case of the petitioners throughout that these buildings did not require any drainage because there was no likelihood of any water being there which required to be drained.
The attitude taken up by the respondents in the correspondence was that the petitioners were bound to provide proper drainage not for these buildings but for premises appurtenant to these buildings. This demand of the Municipality came to be made under the following circumstances. It seems that the petitioners are in the very fortunate position -- a position which they seem to fully exploit -- of being on the river bank and they discharge their trade waste or trade affluent' as it is called into the river.
It also appears from what Mr. Kolah told us on behalf of the petitioners that this was being done by the permission of the Municipality, but the Municipality has now realised that by discharging the trade waste into the river, the river is being fouled or polluted, and we have before us affidavits which go to show that the water of the Sabarmati river is drunk not only by cattlebut also by human beings, and according to theMunicipality the trade waste discharged into this river contains considerable amount of poison, and therefore a requisition seems to have been made by the respondents that the petitioners should discharge the trade waste into the Municipal drain, but not the trade waste as it emerged from the Mills but after it was purified so that the Municipal drains would not corrode by reason of the trade waste in its original conditions being discharged into the municipal drains.
This controversy was going on and the petitioners in the meanwhile made their application for the construction of these new buildings. The respondents from the best of motives wanted, as it were, to put the screw upon the petitioners to carry out their requisition with regard to the discharge of the trade waste and instead of, in our opinion, following the proper, legal procedure they refused to give the petitioners permission to build their new buildings on the ground that they had not carried out the Municipal requisition with regard to the discharge of trade waste in other buildings which had no connection whatever with the buildings which the petitioners proposed to construct.
The whole question before us is this. Did the Municipal Commissioner or the Municipal Corporation impose a proper condition or a legal condition upon the petitioners in refusing sanction to construct these buildings? The only condition which has been imposed upon the petitioners by the respondents is that they must provide an effectual drainage of the Mill premises appurtenant to the various buildings which they are proposing to construct, and the solution of that question depends upon the provisions of the Act and the rules framed under the Act.
4. The material rule with regard to the refusal of permission to build is Rule 4 which appears in Chap. 12 of the Statutory Rules which are embodied in the Schedule to the Bombay Provincial Municipal Corporations Act, and that rule provides,
'(1) if the Commissioner disapproves of any building or work of which notice has been given as aforesaid or of any portion or detail thereof, by reason that the same will contravene some provision of this Act or some rule or by-law or will be unsafe, he shall within thirty days of the receipt of the notice or of the plan, section, description or further information, if any, called for under Rule 1 by a written notice intimate to the person who gave the notice first hereinbefore in this rule mentioned, his said disapproval and the reason for the same and prescribe terms subject to which the building or work may be proceeded with, or intimate that the work shall not be proceeded with'.
Therefore in law the Commissioner can only disapprove of the construction of any building on the four grounds mentioned in this rule and the four grounds are that the proposed building will contravene some provision of the Act, or that it will contravene some provision of the rule, or any by-law, or that the building will be unsafe.
It is not suggested by the respondents that the plan submitted by the petitioners contravened any rule or any by-law or that the buildings they proposed to construct were unsafe, but what is urged by the respondents is that the proposed buildings contravened certain provisions of the Act.
Therefore, if the Commissioner fails to satisfy us that the proposed buildings contravened some provision of the Act, the disapproval of the Com-missioner would be an unlawful disapproval, it would not be a disapproval which would fallwithin the ambit of Rule 4, and the legal position is clear that if a public authority disapproves of a proposed building on a ground which is not a lawful ground, the Court will issue a mandamus upon the local authority compelling him to grant his approval to the proposed building. If necessary see -- 'The Queen v. Tynemouth Rural District Council' (1896) 2 QB 451 (A).
6. The provision of the law which according to the Advocate-General is contravened by these proposed buildings is Section 171 and it is to that section that we must now turn.
That section contains a prohibition against erection of any new building or re-erection of any building or occupation of any building newly erected or re-erected unless and until the conditions laid down in Clause (a) and (b) of Sub-section (1) are satisfied, and the condition in Clause (a) is that a drain be constructed of such size, material and description, at such level and with such fall as shall appear to the Commissioner to be necessary for the effectual drainage of such building.
Therefore, if any of these nine buildings required a drainage, then it would be incumbent upon the petitioners to make proper provision for the effectual drainage of the buildings. But as we have already pointed out, it is not the case of the respondents on the correspondence that any of these buildings required drainage; it is only for the first time in the affidavit made by the Municipal Commissioner that there is a suggestion that these buildings may require some drainage.
But even that suggestion takes the form of a bald denial by the Municipal Commissioner of the petitioners' averment in the affidavit that none of the buildings required any drainage. Further, the refusal on the part of the Ahmedataad Municipality of permission to the petitioners for constructing these buildings is not based upon the ground that they should construct drains for the nine buildings.
If such a condition had been imposed by the Municipality, the petitioners would have been bound to carry it out. But as we have already pointed out. the petitioners specifically by their letter of 19-2-1955 called upon the Municipality to inform them what drainage each of these buildings required. No answer was vouchsafed to the petitioners and the only reply they got was that they had contravened the provisions of Section 171. Therefore it is clear that the case of the respondents cannot fall under Clause (a) of Sub-section (1) of Section 171.
Then what is relied upon is Clause (b). Before we look at that clause we might briefly state what the argument of the Advocate-General is. He contends that it is open to the Municipality to tell a person who wants to construct a building that although that building does not require any drainage, still if a building appurtenant to that building requires drainage they have the power to prevent him from constructing that building.
This argument is clearly opposed to com-monsense and we must now proceed to see whether the Legislature has in Clause (b) given such an authority to the Municipality to refuse permission to a party who wishes to construct a new building. Clause (b) provides:
'There have been provided for and set up in such building and in the premises appurtenant thereto, all such appliances and fittings as may appear to the Commissioner to be necessary for the purposes of gathering and receiving thedrainage from, and conveying the same off, the said building and the said premises, and of effectually flushing the drain of the said building and every fixture connected therewith'. -
It is clear that the expression 'such build-Ing' refers to the building in Clause (a), in other words, to the building in relation to which drainage is necessary, and it will also be noticed that Clause (b) requires appliances and fittings to be provided not with regard to such building or the premises appurtenant thereto but to such building and the premises appurtenant thereto, and even in the latter part of Clause (b) where it deals with gathering, and receiving the drainage from and conveying the same off, the expression is 'the said building and the said premises'.
In effect and in substance the Advocate-general wants us to read 'or' in place of 'and'. There is no warrant for such a construction. The Scheme of Clause (b) is fairly clear. You may have a case where a building which requires drainage may be so connected with an adjoining building drainage may be necessary not only for that building but also for the adjoining premises, and in such a case power is given to the Municipality to insist upon drainage being provided both for that building and the premises appurtenant thereto.
But to suggest that the Municipality has the power to insist upon drainage being provided for adjoining premises when the building in question does not require drainage at all is to put a construction upon Clause (b) which the language does not warrant nor is it consistent with com-monsense or reason. Therefore, in our opinion, the disapproval communicated by the Municipal Commissioner is not based upon the petitioners contravening either Section 171 (1) or (b) and therefore the disapproval is not one which falls within the ambit of Rule 4 to which reference has been made.
6. The Advocate-General says that the action of the Municipal Commissioner was the result of his taking the view that public health required that the petitioners should not discharge the trade waste into the Sabarmati river and that this Court should support the action. If the action of the Municipal Commissioner was within the law, this Court would have most assuredly supported his action. But unfortunately, however laudable the motive of the Municipal Commissioner, he has set about achieving that object by a method which is contrary to law.
We are sure that the Municipal Act arms the Municipal Commissioner with sufficient power to take the necessary action against the petitioners if they act in a manner which undermines the public health of the City of Ahmedabad. But what the Municipal Commissioner has really tried to do is indirectly to bring about proper drainage with regard to the other buildings owned by the petitioners by refusing permission to construct the new buildings which do not require drainage at all. That in our opinion the law does not permit him to do.
7. The result is that the petition must succeed and there will be an order upon the respondents to give permission to the petitioners tobuild the various structures referred to in Ex. Aof the petition. The respondents must pay thecosts of the petition.