1. The question in this case is as to the legality of a conviction under Section 193 of the Bombay Municipal Boroughs Act, XVIII of 1925, for failure to comply with a notice issued under Section 167 of the Act. The reference has been made by the Sessions Judge of Thana in a case in which one Don Fillius D'Silva has been convicted by the First Class Magistrate of Kurla and sentenced to pay a fine of Rs. 10.
2. The accused owns a plot of land measuring 6000 sq. yards in the Municipal limits of Kurla. The Chief Officer of the Municipality sent him a notice under Section 167 which was in the following terms :-
Whereas the above tank (low lying area) belonging to you which is full of stagnant water is a source of nuisance to the surrounding locality inasmuch as it forms breeding ground for mosquitoes and causes the accumulation of filthy sullage water thus affecting the health and general sanitation of the locality.
Now, pursuant to the provisions of Section 167 of the Bombay Municipal Boroughs Act of 1925, I do hereby require you within fifteen days from the service hereof to get the same filled up with dry earth to the level of the surrounding ground.
It appears that the level of the accused's plot of land is two to three feet below that of the surrounding land, and that the rilling up of the land so as to bring it on the same level as the surrounding land would cost from 4,000 to 5,000 rupees. The accused says that this is out of all proportion to the value of the land and altogether beyond his resources.
3. It is also contended on behalf of the accused that in any case fifteen days was an insufficient time for doing the work and that there is no evidence that any nuisance was caused by the condition of his land. Under Section 167 of the Act what is required is that the Chief Officer should be satisfied of the existence of a nuisance, because he is given power to issue the notice there provided for if in his opinion a nuisance exists. It is not necessary therefore that it should be proved by evidence that a nuisance exists in fact. In so far as the learned Sessions Judge, who has referred the matter, suggests the contrary, we are unable to agree with him. We do however agree that it is necessary that the opinion of the Chief Officer should be properly proved. We do not consider that that is sufficiently done by the mere production of a notice signed by him. There is no other evidence in the case. The Chief Officer did not give evidence and the Sanitary Inspector who was the only witness examined could not and did not say anything about the Chief Officer's opinion. Incidentally I may say that this witness admitted that at the present time, that is, at the time of the trial, there was no complaint from anybody of any nuisance.
4. Then another point is that in Section 193 under which the accused has been convicted there is a proviso that when the notice fixes a time within which certain act is to be done, and no time is specified in the Act, it shall rest with the Magistrate to determine whether the time so fixed was reasonable time within the meaning of the Act. The record of the trial is very scanty, but taking it as it is, it seems sufficiently clear that an allowance of fifteen days for raising the level of the whole of the accused's plot by two or three feet was quite unreasonably short.
5. On both these grounds we agree with the learned Sessions Judge that the conviction of the accused ought not to be sustained.
6. The more important question as to whether the Chief Officer has power under Section 167 of the Act to make the order complained of is more difficult. The first clause of Section 167 which is the one with which we are concerned is as follows :-
(1) If, in the opinion of the Chief Officer-
(a) any pool, ditch, quarry, hole, excavation, tank, well, pond, drain, water-course, or any collection of water, or
(b) any cistern or other receptacle for water whether within or outside a building, or (c) any land on which water accumulates and which is situate within a distance of one hundred yards from any building used as a dwelling house, is or is likely to become a breeding place of mosquitoes or in any other respect a nuisance, the Chief Officer may, by notice in writing, require the owner thereof to fill up, cover over or drain off the same in such manner and with such materials as the Chief Officer shall prescribe, or to take such order with the same for removing or abating the nuisance as the Chief Officer shall prescribe.
7. The first point that arises is, is the land in question a tank? On the evidence we can only hold that it is not. The notice itself suggests really that it is not a tank because it is referred to as 'tank (low lying area).' The prosecution made no attempt to show that it can properly be described as a tank. We must take it therefore that it does not come under Clause (a) of Sub-section (1) of the section. That being so, the case can only come under Clause (c), and the question is whether, when you are dealing with land on which water accumulates and which is situate within a distance of one hundred yards from any building used as a dwelling house, an order can lawfully be made requiring the whole area of the land to be raised to the level of the neighbouring land. (Incidentally, I may remark that there is no definite evidence on the record to show that this land is within one hundred yards of a dwelling house.) The section gives power to the Chief Officer to require the owner of the property referred to 'to fill up, cover over or drain off' the property. These words refer back without distinction to Clauses (a), (b) and (c). But obviously all the words are not equally appropriate to all that precedes. You can fill up almost all the items in Clause (a), except a collection of water, but you cannot very well nil up a cistern or receptacle for water, that is to say not in the sense intended. You can cover over most if not all of the things mentioned in (a), and also those mentioned in (b), but you cannot cover over land, at any rate if it is a large plot of land. Obviously the words 'cover over' were not intended to apply to the land. The words 'drain off' are the only ones which might be appropriate to (a), (b) and (e) alike. It is by no means clear therefore that the words 'fill up' were intended to apply to the land on which water accumulates. No doubt they would properly apply to filling up holes or depressions in a plot of land. It is extremely doubtful whether they would apply or could have been intended to apply to filling up in the sense of raising the level of a large area of land which is naturally low lying land. The power to order levelling of this kind is on the face of it so harsh and oppressive (or may be so; in this case the area is an acre and a quarter and it might be several acres) that one cannot suppose that the Legislature intended to confer this power unless the language of the section is perfectly clear, and as I say I do not think it is. I am not satisfied that the words of this section were intended to give or do give power to make the order which was made in this case.
8. It is true that the section also contains the words 'or to take such order with the same for removing or abating the nuisance as the Chief Officer shall prescribe.' But I think those words must be considered with their context. It is a case of noscitur a sociis. I am not prepared to say that even under that clause power to make such an order is given. I think that this view of the construction of the section derives a certain amount of support from the decision in Municipal Commissioner of Bombay v. Hari Dwarkoji I.L.R. (1899) 24 Bom. 125 : 1 Bom. L.R. 518 although that wag a case dealing with a different Act.
9. Even supposing that the Chief Officer has power under the strict terms of this section to direct the owner to raise the level of the whole of his land, I consider that the order in the circumstances of this case must be regarded as an arbitrary and oppressive one, and that of course would be an additional ground for holding that the conviction should not be allowed to stand.
10. We set aside the conviction, and direct that the fine if paid be refunded.