1. Plaintiff, who is the owner and occupant of a house within the Masulipatam Municipality, was served with a notice issued in pursuance of a resolution of the Municipal Council to remove the latrine attached to her house and have it constructed in another place. She thereupon filed the suit out of which this second appeal arises for an injunction restraining the Municipal Council from enforcing the order. On behalf of the plaintiff, questions were raised whether the order was within the competence of the Municipality, and if it were within its competence, whether on the merits it was an order which in the circumstances should have been given. The defendant on the other hand contended that a suit of this character would not lie. This point, however, as well as the contention that this Court can enter into the merits of the case for removing the latrine has now been given up and we are only concerned with the question whether the notice was intra vires.
2. At the time when it was issued, Madras Act IV of 1884 was still in force. There are two sections which deal with private latrines, Sections 207 and 214. The drafting of the Act seems in respect of this topic to have been somewhat defective, because not only is the issue of notice dealt with in each of these two separated sections, but the latter section is to be found under a portion of the Act which is headed'Drains'.Inasmuch, however, as Section 214 expressly deals with privaite latrines and privies, 1 do not think that the presence of that heading can affect the application of this section to any case to which it might otherwise apply. Section 207 empowers the Municipal Council by notice to require the owner or occupier of every building to provide a latrine or alter any existing latrine in accordance with any directions contained in such notice. The learned Subordinate judge appears to entertain the view that the alteration to be ordered by such notice should be in the interests of the owner or occupier of the building, but I think it is quite clear that this is a misreading of the section and that the intention is to empower the municipality to take order with latrines in the interests of the general public and in particular of the neighbouring residents. If this were the only provision in the Act which empowered the municipality to interfere with private latrines I should be inclined to hold, even assuming that the word 'alter' refers to locality as well as to structure, that it was incumbent on the municipality to give directions as to what kind of alteration should be effected, because the words 'in accordance with directions contained in such notice' seem to me to lay it upon the Municipal Council to decide upon the exact nature of the alteration necessitated by the case. The Lower Courts have made a point that the notice is in this respect defective. It merely requires that a latrine should be removed from its existing place and be constructed in another place, leaving it to the owner to decide at his own peril whether that other place was or was not equally open to objection and liable to be again condemned by the Municipal Council on a further occasion. But I have further to consider the application of Section 214, Sub-section (2) which empowers the Municipal Council by notice to require the owner of any land or building to which any latrine belongs to close or demolish it or to alter or repair it in such a manner as the Municipal Council may think necessary. It will be seen that the latter part which I have quoted substantially reproduces the provision of Section 207. But the section also enables the Council to direct that the latrine be closed or demolished altogether, and it is an argument difficult to resist that if it possesses such a power it may couple with that power the condition or the permission that a latrine may be erected in some other place. It is sufficient in order to justify the notice issued to the plaintiff that the Municipality should have a statutory power to direct her to close or demolish the latrine, and since it has that power I cannot say that it has acted beyond its authority in directing her to remove it to some other place not specified. Although, therefore, I think that the notice can be brought within the terms of Section 214(2) of the Act, I cannot help thinking that it would have been more considerate on the part of the Municipal authorities to have assisted the plaintiff with advice or directions as to where the re-erection was to be made, before requiring the demolition of the latrine. It is, of course, open to the owner to obtain the approval of the Municipal Council before reconstructing the latrine elsewhere.
3. I set aside the decree of the Lower Appellate Court and dismiss the suit; but in view of the practical defect which I have adverted to in the action of the Municipal Council I direct that each party bears its own costs throughout.