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Emperor Vs. Edalji K. Patel - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Criminal Application for Revision No. 290 of 1912
Judge
Reported in(1912)14BOMLR1169
AppellantEmperor
RespondentEdalji K. Patel
Excerpt:
city of bombay municipal act (bombay act 111 of 1888), sections 3,305-public street-private street-sewer-drain-pipe to carry off sullage water from adjoining houses.;the applicant owned a house abutting on a street which contained a drain-pipe laid by the municipality. the drain-pipe carried only sullage from the houses on either side of the street ; and did not carry any rainwater or other water or sullage or anything else from the street itself. the municipal corporation of bombay issued a notice on the applicant under section 305 of the city of bombay municipal act, 1888, calling upon him to level, metal or pave, drain and light the street running by his premises. the applicant was, for disobedience of this notice, convicted under s- 471 of the act. it was contended in defence that..........definition shows, upon the answer to the question whether the street is sewered by this six-inch-drainpipe. the facts are that the pipe,-though it runs under the street, carries nothing but sullage water from the houses on either side of the street, and does not carry any rain water or other water or sullage or anything else from the street itself. upon these facts can it be said that the street is sewered by this pipe ?3. it is urged on behalf of the petitioner that the word 'sewer' must be restricted to that narrower meaning which it sometimes bears in ordinary parlance, that is to say, to the meaning of liquid filth or excrementitious matter. we have nothing in the act to guide us as to the particular meaning in which the word is used in section 3, and upon the best consideration.....
Judgment:

Batchelor, J.

1. This is an application in revision, and the order sought to be revised is an order by the Fourth Presidency Magistrate convicting the accused of failure to comply with a notice issued against him under Section 305 of the City of Bombay Municipal Act, and sentencing him to pay a fine of Rs. 15. It appears that the petitioner is the owner of certain property which abuts on a street, this street connecting with the Tardeo Road on the one side and Sleater Road on the other. Under Section 305 of the Act a written notice was served upon the petitioner requiring him, among others, to level, metal or pave, drain and light the street running by his premises. That notice was of course issued on the footing that (the street in question was a private street. The petitioner ultimately declined to carry out the notice and sought to justify his refusal on the ground that the street in question was not a private street. This attitude he assumed by reason of the fact that there ran, and runs, under the street a six-inch-drain-pipe, which for the purposes of this reference must be assumed to have been laid by the Municipality prior to the coming into force of the Municipal Act.

2. Under Section 3 of the Act ' private street ' is defined as a street which is not a public street, and 'public street' is defined to mean any street heretofore levelled, paved, metalled, channelled, sewered, or repaired by the Corporation. The only question is whether upon the facts before us this street is a private street or a public street within the meaning of the Act. That-depends, as the definition shows, upon the answer to the question whether the street is sewered by this Six-inch-drainpipe. The facts are that the pipe,-though it runs under the street, carries nothing but sullage water from the houses on either side of the street, and does not carry any rain water or other water or sullage or anything else from the street itself. Upon these facts can it be said that the street is sewered by this pipe ?

3. It is urged on behalf of the petitioner that the word 'sewer' must be restricted to that narrower meaning which it sometimes bears in ordinary parlance, that is to say, to the meaning of liquid filth or excrementitious matter. We have nothing in the Act to guide us as to the particular meaning in which the word is used in Section 3, and upon the best consideration which we can give to the matter, we think that the narrower meaning contended for by the petitioner is not the meaning in which the word is there employed. It appears on reference to recognized Dictionaries that the word ' sewer ' is derived from the verb ' to sew ' which in Webster is explained as meaning ' to drain, as a pond for taking the fish.' So according to Webster ' sewer ' signifies a drain or passage to convey off water and filth underground. There is not, we think, any sufficient reason to suppose that the word, when used in the Bombay Act, is intended to bear any other meaning than this, its recognized meaning. On reference to Stroud's Judicial Dictionary we observe that there is judicial authority for giving to the word the signification which Webster attaches to it, for in Sutton v. The Mayor and Aldermen of Norwich (1858) 27 L.J. Ch. 739, Vice Chancellor Kindersley says: 'The word 'sewer' comes from the word to ' sew ', i. e. to drain, and has a much more extended signification, embracing works on the largest scale, such as draining the fens of Lincolnshire by means of canals etc.' In Wharton's Law Lexicon the word is similarly defined as being a trench or channel through which water flows.

4. On these grounds it seems to us impossible to limit the meaning of the word ' sewer ' in Section 3 of the Municipal Act in the manner desired by the petitioner. We think on the authorities to which we have referred that the word must bear the wider signification and must refer to the carrying off other water besides liquid filth. This construction appears to us to derive support from the language of the section which requires that the street should be sewered. Seeing that the 'street is hardly a place on which sewage in the narrower sense would ordinarily be expected, it is probable that the Legislature in using the word ' sewer ' intended to convey the wider meaning. If that is so, then it follows that this street cannot be said to be sewered merely because there runs under it a pipe which, though carrying off sullage water from certain houses, has no direct connection with the surface of the street.

5. We think also that there is force in the learned Advocate General's argument derived from what appears to be the reason of the provision in Clause (x) of Section 3. For it is intelligible that if, prior to the coming into force of the Act, the Corporation have taken under their charge a street, as a street, and have sewered it, the street should remain under their charge and liability ; but the Corporation can hardly be said to have undertaken this responsibility when their' action has been limited to the mere provision of a pipe disconnected from the street and designed only to remove excrementitious and other filthy matter from the houses which happen to adjoin the line of the street.

6. Upon these grounds we are of opinion that the learned Magistrate was right in thinking that the street in question , is not sewered by the existing pipe. As that is the only point upon which the conviction has been challenged, we must discharge the rule and confirm the conviction and sentence.


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