1. This suit was filed by the trustees of a temple at Walkeshwar against the Municipal Commissioner of Bombay and others.
2. It appears that the Municipality of Bombay in carrying out some important drainage operations at Malabar Hill had erected what are known as septic tanks on the foreshore close by the Bank of Bombay Bungalow on the Lands End Road, the object being to drain the Southern portion of Malabar Hill down to those septic tanks; and the suit arises out of a certain drain, which has been made by the defendants and is delineated on Plan D1 (which has been put in) a distance of about 1,500 ft. more or less North and South, the object being to allow the sewage which goes from the Southern portion of Malabar Hill and Walkeshwar to run into these septic tanks. The object of the septic tanks is to have one tank above another and the sewage by force of gravitation goes into the first tank and from there by a process of percolation and gravitation the sewage goes into the second tank and then again into the third and finally goes out from this process in the form of a colourless liquid, which has no smell, and, I am told, has no taste. On the only occasion on which I saw the operation, I was asked to taste the liquid, but I declined to do so.
3. I may mention that it is important to bear in mind, as the defendants say, that it would be impossible to construct this drain so as to flow into these septic tanks, if the drain had been laid on the ordinary level of the foreshore. I call it foreshore for the purposes of this judgment only. The foreshore and high water mark are shown on Laughton's Plan.
4. The prayers to the plaint, so far as I have got to deal with them for the purposes of this judgment are the following :-
(a) That the first defendant may be ordered to remove the said drain and to construct another drain if it is at all necessary to do so underneath the ground.
(b) That the first defendant may be ordered to remove the whole of the said wall and to put the plaintiffs property in the same condition in which it was before the construction of the said drain and wall.
5. Mr. Taleyarkhan for the plaintiffs wanted to raise an 8th issue, which was strenuously opposed by Mr. Chamier on behalf of the defendants, because Mr. Taleyarkhan wanted to raise thereby the question whether or not the defendants were committing trespass by reason of laying a drain at all; but it appeared to me that it was clearly not open to the plaintiffs now to make such a case, because having regard to para (a) of the prayer to the plaint, they say expressly that the first defendant may be ordered to remove the said drain and to construct another drain if it is at all necessary to do so underneath the ground.
6. No doubt, on the other hand, the plaintiff does complain of what he and his witnesses have called a wall, viz. the masonry structure supporting this drain. I ought to mention that it contains a stoneware drain pipe (in sections each two ft. long) which is enclosed within the masonry structure, which varies in height from 3 feet to 6 ft. 6 in. and is about 3 ft. in breadth. In addition to that there are several man-holes which are shown on the Plan; and the evidence is uncontradicted that these man-holes are absolutely necessary for the purposes of cleaning out the drain and enabling a man to get into the man holes not only himself but also the instruments necessary to clean the drain.
7. The first point to consider in this case is the meaning of the word ' drain' and this is defined in Section 3(u) of the City of Bombay Municipal Act as amended. It is as follows:-
Drain' includes a sewer, pipe, ditch, channel and any other device for carrying off sewage, offensive matter, polluted water,sullage, waste water, rain water or sub-soil water and any ejectors, compressed air mains, sealed sewage mains and special machinery or apparatus for raising. collecting, expelling or removing sewage or offensive matter to the sewage out-fall.
8. Fortunately the Bombay Legislature has avoided the extraordinary difficulties which have arisen in England in consequence of the definitions of and distinctions between a 'drain' and a 'sewer. '
9. Under Section 3(u) of the Municipal Act, 'drain ' includes a sewer pipe etc. and any other device for carrying off sewage etc, and any ejectors, compressed air mains, sealed sewage mains and special machinery or apparatus for raising, collecting, expelling or removing sewage or offensive master to the sewage outfall.
10. We were told by Mr. Maughan that the ultimate outfall from the septic tanks goes into the sea.
11. Looking at the above definition of the word 'drain,' it is al. most unnecessary to cite any authority as to whether these manholes could be included in '-any other device for carrying off sewage' etc. No doubt a man-hole must be 'any other device for carrying off sewage,' and in Swanston v. Twickenham Local Board (1879) 11 Ch. D. 838 there is the direct authority of the Court of Appeal in England that man-holes are parts of sewer; and, therefore, it may be taken at the outset that the whole of the operations of the Municipality about which the plaintiff complains come within the meaning of the word 'drain'.
12. The next section to consider is Section 222 of the Municipal Act; and fortunately Mr. Chamier was able to cite to the Court a case, which is far more on all fours with this case-and Mr. Taleyarkhan rightly thought it so-than the majority of the cases cited in this Court, viz. Roderick v. Aston Local Board (1877) 5 Ch. D. 328
13. Section 222 of the Bombay Municipal Act says :-
(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.
14. Then para (3) provides:-
In the exercise of any power under this section, as little damage as can be shall be done and compensation shall be paid by the Commissioner to any person who sustains damage by the exercise of such power.
15. Before that case was cited to the Court, I had considered the words of the section and it seemed to me that the words 'into, through or under' must cover a drain such as the present although it is above the surface of the ground.
16. Before going into that, however, I ought to draw attention to the meaning of the 'City of Bombay'. That is given in Emperor v. Budhoobdi ILR (1905) 30 Bom. 136, where it is laid down as follows :-
The word 'City of Bombay' under the General Clauses Act (I of 1904) means the area within the local limits for the time being of the Ordinary Original Civil Jurisdiction of the Bombay High Court of Judicature: see Clause 10; and by Section 4. the word 'City of Bombay' as defined in Section 3 of that Act applies also, unless there is anything repugnant in the subject or context of Bombay Acts passed before the commencement of Act I of 1904. We do not find anything repugnant in the subject or context in the Bombay Municipal Act.
17. Therefore, it appears to me that the powers of the Municipality, taking that to be the definition of the ''City of Bombay' are certainly exercisable in the locality in question in this suit.
18. Before I deal with the case that has been referred to, it certainly seems as a matter of common sense that when we talk of taking a drain 'into, through or under' any land whatsoever, that must include passing over the land. We go through a person's house or garden when we pass ever it. The well-known expression 'per mare per terrain' carries with it the same implication. Further it must be remembered : 'cujus est solum ejus est usque ad coelum'; that is, the column of (sic) above a man's land is considered his property up to the sky. Accordingly when we go through a man's land, we go through the air above his land, which is his property. But it is not necessary for me to labour this point, because we have the Master of the Rolls Sir George Jessel and James, L.J. in Roderick v. Aston Local Board (1877) 5 Ch. D. 328, dealing with the matter, The head-note there is as follows:-
By the Public Health Act, 1875, Section 16, a local authority is empowered to carry any sewer' into, through or under' any lands within its district and the Act provides for compensation to all persons sustaining damage by reason of the exorcise of the powers of the Act in relation to any matters as to which they are not themselves in default. A local board under this Act proceeded to carry a sewer across the plaintiff's pleasure grounds on such a level that the bottom of the sewer would be only slightly below the surface and a permanent embaukment about six feet high would be made:-
Held (by the Master of the Rolls and by the Court of Appeal), that they were authorized so to do, for that the Act did not confine them to carrying a sewer under ground.
19. The Master of the Rolls says :-
I am asked to say that the words ' into, through, or under' mean simply 'under.' I decline to say so. Why am I asked to make three words into one? The word 'under' is distinguished by the word 'or' from 'into' or 'through'. The board may not only carry a sewer under, but into, through or under'. It is said that moans that they must makes the sewer by means of a tunnel, or if by a cutting, that they must cover ever the cutting so that the sewer shall always fee carried under. But taking the ordinary meaning of the English language, if I am to carry anything, into, through or under land,' that does not mean that it must be wholly under. Taking this clause alone I have no doubt whatever that this sewer, being partly under and partly above the surface, is carried into, through or under the lands in question.
20. James L.J., in giving his judgment in the Court of Appeal, says:-
I am of opinion that the decision of the Master of the Rolls must be affirmed. It is said that great injustice may be done by this construction of the Act; but I think that the compensation clause will be sufficient to give adequate compensation (and there doss seem a very strong case for compensation) for any damage which may be sustained. It may be said that it is very hard for a piece ofman land to be taken away without his consent and without the defendant's buying it. On the ether hand, if these local authorities were obliged to buy every property with which they required to interfere, it might become impossible to carry out the requisite sanitary arrangements forthe district. Those considerations may tell one against the other. All we have to consider is, what is the plain meaning of the words of the Act; and in my opinion there is nothing sufficient to show that when the Legislature says the board may take its sewer 'into, through or under' land, that is to be taken only to mean 'under.' If the argument of the appellants prevails, we must hold that the legislature says, 'you may go into, through and under, but not on or over.' I clink we cannot introduce that exception into this clause.
21. Mr. Taleyarkhan in the course of his arguments relied on The Justices of the Pedce for Calcuttd v. The Oriental Gas Company (1872) 8 B.L.R. 433 I have read that case carefully through but I do not think that it contains anything to support the case of the plaintiffs. In fact it seems to me to be rather able to be used against the present plaintiffs contention, because there it was held that in an application by the company for a writ of mandamus the question of compensation should be settled by the Small Cause Court.
22. That being so, therefore, it appeals to me that in so far as the plaintiffs claim any trespass against the defendants for the carriage of this drain and masonry support across this land assuming of course that to be the plaintiff's land, I must hold, upon the authority I have referred to, that the action fails.
23. The next question is the point that has been raised by the 3rd issue, viz. whether the plaintiffs are entitled to maintain this suit; and that involves the consideration of Section 504 of the Municipal Act as amended. It says:-
If in any case not falling under Section 491, any person is required by this Act, or by any regulation or by law framed under this Act, to pay any expenses or any compensation, the amount to be so paid and, if neeessary, the apportionment of the same, shall, in case of dispute, be determined, except an is otherwise provided in Section 502 and 515, by the Chief Judge of the Small Cause Court, on application being made to him for this purpose at any time within one year from the date when such expenses or compensation first became claimable.
24. Section 222 of the Act says inter alia that in the exercise of any power under this section compensation shall be paid by the Commissioner to any person who sustains damage by the exercise of such power.
25. Reading those two sections together, in my opinion, it is plain that the object of the Act was that if any damage was done or any portion of a man's property was taken away the amount should be assessed by the Chief Judge of the Small Cause Court.
26. The following is an extract from the article on compensation in the Encyclopaedia of the Laws of England:-'By the common law of England, as stated by Mr. Ingram in the introduction to his book on the Law of Compensation-'no violation of the rights of private property is allowed even for the general good of the whole community. The principle-that the good of the individual should yield to that of the community- has in this country never been received with favour. And no tribunal of the judicature has ever beeninstrusted with the power of compelling a sale of land or dispossessing a citizen of his house or premises even for public purposes of great and manifest utility'.'
27. In my opinion, if the Municipality had taken up the attitude that they admitted the plaintiff's title to this land and had admitted their title to some compensation, assuming the land to be the plaintiff's, inasmuch as this drain with the masonry structure has taken up 497 1/2 sq. yards of their property, (and I apprehend at all events some compensation on the principle cited should be paid to the plaintiffs), I should dismiss the suit on this ground; but that is not the attitude which the Municipal Commissioner has taken up, for this reason that the Municipal Commissioner denies (as of course he is perfectly justified in doing until it is proved that this is the plaintiff's ground at all) that any damage has been done. In the letter, Ex. No. 3, written by the Deputy Executive Engineer, it is said:-'No damage has been done by reason of the Commissioner having exercised the powers under Section 222 of the Municipal Act and therefore no compensation can be claimed in the case.' Then the endorsement thereon by the Municipal Commissioner says:-
The Commissioner is unable to entertain the claim for compensation.
28. It appears to me that attitude may very considerably affect the question of costs of this suit; but of course I have nothing to do with that now; and nothing that I am saying now is in any way to be used or even referred to when the question o the amount of this compensation does come (as in my opinion it must come under Section 504 of the Act) before the Chief Judge of the Small Cause Court, Bombay. All I can say is that in my opinion the plaintiffs were justified in asking this Court to say that they are entitled to some compensation for what has been done, The question of the amount of that will be referred to the Chief Judge of the Small Cause Court as I have already said.
29.That being so, it is obvious from my judgment that I cannot dispose of this suit on these three preliminary issues, which have been raised; because another question arises and that is this, that a specific issue has been raised as to whether the plaintiffs are the owners of this property.
30. It appears to me that it would be a solemn farce for me to send this case down to the Chief Judge of the Small Cause Court to assess the compensation under the Act, before the question of the plaintiff's ownership of this property was decided, because, obviously, if I were to send it down to him for the assessment of the compensation, the first question that would be raised would be whether the plaintiffs have any title to the land and the effect of that would be to send back the case to me for trial as to whether the plaintiffs are entitled to this land.
31. Therefore, it appears to me that this case must proceed on. the issue as to the ownership of the land.
32. I may mention that I would not have acceded to the application for the preliminary issues being tried, if I had not thought the case cited by Mr. Chamier was extremely apposite and the three issues might be disposed of on it.
33. Further, I may say that the case has been admirably conducted on both sides and the arguments were put with very great neatness and no time has been wasted by the course which has been adopted.
34. The case will now come on for further hearing on the issue that I have referred to above.
35. I find on the issues as follows :-
(1) Whether the defendants are not empowered by the Municipal Act to construct the drain complained of.
In the affirmative. They were empowered.
(2) Whether the masonry structure complained of is not a drain under the Municipal Act.
In the affirmative. The structure is a drain.
(3) If so, whether the plaintiffs can entertain this suit.
I find that in the affirmative upon the ground that the first defendant in his letter, Ex. 3, denied that the plaintiffs were entitled to any compensation at all; but I hold that the amount of compensation must be referred to the Chief Judge of the Small Cause Court, Bombay.
(4) Whether the plaintiffs are the owners of the land on or over which the said drain and structure have been built.
Remains for trial.
(5) Whether the plaintiffs are entitled to any and what compensation or relief.
In my opinion they are entitled to some compensation.
(6) Whether this Court has jurisdiction to maintain this suit in excess of that claimed by the notice C to the plaint.
Finding not necessary.
(7) Whether the Commissioner's notice of the 13th March 1906 was a good and sufficient notice so as to cover the work which has been done by the defendant.
36. I find that in the affirmative. I have not referred to that letter in detail, but it seems to me it was a good notice to justify the work which the Municipality has undertaken.
37. Further hearing adjourned till the first day after the October vacation.