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The Province Vs. the Municipal Corporation of the City - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 427 of 1943
Judge
Reported in(1943)45BOMLR945
AppellantThe Province
RespondentThe Municipal Corporation of the City
Excerpt:
.....is not bound. however, i do not rely very much on that ground, because i am not satisfied that it would be impossible to provide protection against fire without carrying the main under a government road, although, no doubt, that may be the easiest method of providing the necessary protection. the provision of a proper water supply to a city of the size of bombay is an extremely important matter, and one must assume that the provisions of the act dealing with the subject were intended to operate efficiently and smoothly. if they cannot operate efficiently and smoothly, unless the crown is bound, i think the crown must be held to be bound by necessary implication......the antop hill estate, which belongs to government, and in respect of which there is no adequate water supply. accordingly the municipality proposed to construct a 9' main under the antop hill road, which is a private road belonging to the government of bombay, and they asked for the consent of government to the proposed work. government gave their consent on certain conditions, but the municipality considered that they were not justified in agreeing to those conditions. the municipality then proposed to get over the difficulty of government not consenting by exercising their statutory powers under section 222 read with section 265 of the bombay municipal act. but government took the point that the crown is not bound by these sections of the act, and the municipality could not,.....
Judgment:

John Beaumont, Kt., C.J.

1. This is a special case stated under Section 90 and Order XXVI of the Civil Procedure Code, raising the question 'Whether the Crown is bound by Sections 222(1) and 265 of the City of Bombay Municipal Act, 1888.' The question is of some public importance to the citizens of Bombay, and the answer to it is not, I think, altogether free from doubt.

2. The question arises in these circumstances. There is an estate in the neighbourhood of Matunga known as the Antop Hill estate, which belongs to Government, and in respect of which there is no adequate water supply. Accordingly the Municipality proposed to construct a 9' main under the Antop Hill Road, which is a private road belonging to the Government of Bombay, and they asked for the consent of Government to the proposed work. Government gave their consent on certain conditions, but the Municipality considered that they were not justified in agreeing to those conditions. The Municipality then proposed to get over the difficulty of Government not consenting by exercising their statutory powers under Section 222 read with Section 265 of the Bombay Municipal Act. But Government took the point that the Crown is not bound by these sections of the Act, and the Municipality could not, therefore, exercise their powers in the proposed manner, and this case has been stated in order to determine the position.

3. The question how far the Bombay Municipal Act of 1888 is binding on the Crown has been considered in two recent cases by this Court. The general principle that the Crown is not bound by legislation in which it is not named expressly or by necessary implication is conceded by the Municipality, and was recognised in both the cases referred to. The first case is Hiranand Kirpalani v. Secretary of State : AIR1934Bom379 , in which it was held that Section 305 of the Municipal Act, which enables the Municipality, where they have levelled and paved a private street, to recover the costs from the owners of adjoining property, does not bind the Crown. On the other hand, in Secretary of State v. Bombay Municipality (No. 1) : (1935)37BOMLR499 it was held that Section 212 of the Municipal Act, which is the section charging property taxes due under the Act, upon the buildings or lands in respect of which the taxes are due, does bind the Crown, the reason being largely that the taxing sections, Section 140, and the following sections bind the Crown, except where expressly excepted. The language of Section 143 seems to make that clear. So that, we approach the question with the knowledge that in part the Bombay Municipal Act binds the Crown, and in part it does not.

4. The sections on which the question arises in this case are Sections 265 and 222(1). Section 265 provides :

The Commissioner shall have the same powers and be subject to the same restrictions for carrying, renewing and repairing water-mains, pipes and ducts within or without the city, as ha has and is subject to under the provisions hereinbefore contained for carrying, renewing and repairing drains within the city.

Then Section 222 deals with powers in connection with draining which apply to water-mains by virtue of Section 265. Section 222 provides :

(1) The Commissioner may carry any municipal drain through, across or under any street, or any place laid out as or intended for a street, or under any cellar or vault which may be under any street, and, after giving reasonable notice in writing to the owner or occupier, into, through or under any land whatsoever within the city, or, for the purpose of outfall or distribution of sewage, without the city.

(2) The Commissioner may enter upon, and construct any new drain in the place of an existing drain in, any land wherein any municipal drain has been already lawfully constructed, or repair or alter any municipal drain so constructed.

The Crown is certainly not named specifically in Section 222.

5. It is argued, in the first place, that the authorities have recognised that a statute which is passed for the public good will bind the Crown, although not mentioned expressly or by necessary implication. But though that modification of the general rule is stated in some of the textbooks, we have not been referred to any modern case in which it has been applied, and it is obviously not easy in most cases to say on which side of the line the public good lies. In two cases, which are reported in [ 1904] 2 K.B. 164, the Court held that the provisions there in question did not come within the rule that they were for the public good, and therefore bound the Crown. In the first case, Gorton Local Board v. Prison Commissioner [1904] 2 K.B. 165 the section with which the Court had to deal provided that the building in question should not be used unless properly inspected by a sanitary authority, and the Court held that that provision, though prima facie imposed in the interests of public health, was not binding upon the Crown, which could make its own arrangements for sanitation of its building. The second case is Cooper v. Hawkins [1904] 2 K.B. 164 in which the Court was dealing with a statute which provided that a locomotive should not be driven along a public highway at greater speed than two miles an hour, and the Court held that that provision, although primarily imposed in the interests of public safety, could not be said to be so much for the public good as to fall within the exception to the general rule. In the present case it may be said that providing a water supply for the Antop Hill estate is for the benefit of persons living in that neighbourhood. But, on the other hand, such provision may impede Government in the development of their land which they hold for the benefit of the public, and in that way the public may lose. I think, on the materials before us, we cannot say that it is for the public good that the Crown should be bound by these provisions of the Municipal Act.

6. The second ground on which the Municipality put their case is that the Crown is bound by necessary implication. In Gorton's case, to which I have just referred, the judgment of Mr. Justice Day contains this passage (p. 167n) :

There are many cases in which such implication does necessarily arise, because otherwise the legislation would be unmeaning, That is what I understand by 'necessary implication'.

It is argued by the learned Advocate General that in this case it is impossible to say that these provisions of the Bombay Municipal Act would be unmeaning, unless the Crown is bound, With that I agree. But I think, with all respect, that Mr. Justice Day states the case too widely in saying that necessary implication involves that the legislation is unmeaning unless the Crown is bound. In my opinion if it can be shown that legislation cannot operate with reasonable efficiency, unless the Crown is bound, that would be a sufficient reason for saying that the Crown is Bound by necessary implication. The Court must assume that legislation is intended to operate efficiently, I proceed therefore to examine the relevant provisions of the Municipal Act in order to see how they will work if the Crown is not bound.

7. Section 61 provides that it shall be incumbent on the Corporation to make adequate provision, by any means or measures which it is lawfully competent to them to use or to take, for each of the following matters. Then Sub-section (b) provides for the construction and maintenance of works and means for providing a supply of water for public and private purposes, and Sub-section (k) provides for the entertainment of a fire-brigade and the protection of life and property in the case of fire. So that, the Municipality are required to construct and maintain works and means for providing a supply of water. No doubt the opening words direct that they shall carry out their duty 'by any means or measures which it is lawfully competent to them to use or to take,' and the learned Advocate General argues that, if the statute does not bind the Crown, then they cannot lawfully take any action against the Crown or Crown lands. That, no doubt, is true; but it is a fact, of which I think we can take judicial notice, that there are many buildings, and much land, in Bombay which are owned by Government, and I cannot help thinking that it may be extremely difficult to construct and maintain a proper water supply, if no Government buildings or lands may be affected without Government's consent.

8. Then one comes to the taxing sections, which are Section 140 and the following sections, and it is not disputed, in view of previous decisions of this Court, that those sections do bind the Crown.

9. Then one has to notice the sections dealing with water supply beginning with Section 261. That section provides :

For the purpose of providing the city with a supply of water proper and sufficient for public and private purposes, the Commissioner, when authorized by the corporation in this behalf, may-

(a) construct and maintain water-works, either within or without the city, and do any other necessary acts.

10. Under Section 263-

The Commissioner, and any person appointed by the Provincial Government under Section 264 in this behalf, may, for the purpose of inspecting or repairing or executing any work in, upon or in connection with any municipal water-works, at all reasonable times; (a) enter upon and pass through any land within or without the city, adjacent to or in the vicinity of such water-works, in whomsoever such land may vest; and (b) convey into and through any such land all necessary materials, tools and implements.

11. I think that it would be difficult to exercise adequately the powers conferred by Sections 261 and 263, unless the Crown is bound by those provisions of the Act.

12. Under Section 266 the Commissioner has to cause fire-hydrants and all necessary works, machinery and assistance for supplying water in case of fire to be provided and maintained, and in this case the Municipality claim that there are no means of protecting the buildings on the Antop Hill Estate from fire at the present time, and that it is necessary for them to carry water by the proposed main if adequate provision against fire is to be provided. However, I do not rely very much on that ground, because I am not satisfied that it would be impossible to provide protection against fire without carrying the main under a Government road, although, no doubt, that may be the easiest method of providing the necessary protection.

13. Then Section 267 is of some importance. That provides that except with the sanction of the Corporation and, in the case of the Vehar water-works, of Government, or for the purposes of Section 262, under the authority of the Commissioner, no person shall (a) erect any building for any purpose whatever within the limits of the water-shed of any lake or reservoir from which a supply of water is derived for any municipal water-work. Again, it is common knowledge, of which, I think, we may take judicial notice, that the Bombay water supply is derived from lakes situate outside Bombay, the principal source of supply being Tansa Lake which is situated some seventy miles away from the City, and further that the supply of water is not more than is sufficient for the purposes of the city, it being usual in the dry season for the consumption of water to be restricted, because the supply is running low. In view of the system of land tenure in this Province, it is probable that most of the land in. the water-shed of the lakes is Government property, and it might very seriously interfere with the arrangements of the Municipality, for providing an adequate water supply for the City, if Government were to construct a town, or a large military camp, in the neighbourhood of these lakes, and divert a large amount of water for the purposes of such town or camp. If the municipality has not the power to protect its source of supply, it cannot be sure of carrying out its statutory duty to provide an adequate water supply.

14. Reading all these sections relating to the water supply together, it seems to me that, although one cannot say that they are meaningless unless they bind the Crown, one can say that it would be impossible to carry them out with reasonable efficiency, unless Government is bound by them, and to my mind, that is enough. The provision of a proper water supply to a city of the size of Bombay is an extremely important matter, and one must assume that the provisions of the Act dealing with the subject were intended to operate efficiently and smoothly. If they cannot operate efficiently and smoothly, unless the Crown is bound, I think the Crown must be held to be bound by necessary implication.

15. I would, therefore, answer the question by saying that the Crown is bound by Sections 222(1) and 265 of the Bombay Municipal Act.

16. The Crown to pay costs under the agreement.

Rajadhyaksha, J.

17. I agree.


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