1. The law enunciated in Emperor v. Dhondu 33 B. 22: 6 Bom. L.R. 255: (1909) 1 L.C. 378 (ante) ought, we think, to be followed. It is in accordance with the rule of construction applicable to an Act, such as Act XIII of 1859. That rule is well explained by Lord Herschell in Derby Corporation v. Derbyshire County Council (1897) A.C. 550 : 66 L.J.Q.B. 701: 77 L.T. 107: 46 W.R. 48: 62 J.P. 4 H.L.. The action there was a proceeding in the County Court under the 10th section of the Rivers Pollution Act, 1876, under which a County Court Judge had power to order any person to abstain from polluting a river and the said person might be required to perform that duty in the manner specified in the order. If the order were disobeyed, the County Court Judge had jurisdiction to impose a penalty not exceeding 50 a day, as he should think reasonable.
2. As Lord Herschell says in his judgment, the proceeding in which the County Court Judge orders any person to abstain from polluting the river and requires him to perform that duty in a specified manner is not a penal proceeding, because 'all it can end in is an order under such terms and conditions as the County Court Judge thinks reasonable to prevent or abate a nuisance.' Then his Lordship goes on: 'The Legislature has provided that if that order is disobeyed then the County Court Judge may impose a penalty... That is a separate and independent proceeding. It is true it is taken, as it is said, in the action or the proceeding, but it is really a separate proceeding in which the penalty for disobedience is imposed'.
3. This Court, therefore, quashes the orders in this case. The lower Court will be at liberty to take fresh proceedings according to law.