1. These two appeals relate to suits in which the Corporation of Madras claimed declarations that the Madras Electric Tramways Company and the Madras Electric Supply Corporation respectively were subject to the. control of the Commissioner of the Corporation under Sections 287 and 288 respectively of the Madras City Municipal Act. The suits were tried by the Judge of the City Civil Court, who dismissed both of them. They came on appeal before Waller, J., whose opinion was that both the Companies carried on their operations under special Acts, or what were equivalent to special Acts, inconsistent with the general Act, the City Municipal Act, and that the Corporation of Madras were not entitled to the declarations for which they sought. He upheld the decision of the City Civil Court; and it is against that decision that these two appeals have been preferred.
2. I think it will be convenient to deal with the two cases separately, and, if I may say so with great respect, I doubt whether Waller, J., would have arrived at his decision in respect of the Tramways Company, if he had treated it separately from the case of the Electric Supply Corporation. The Tramways Company operates under what is called an order issued by the Government under the Tramways Act. In the course of their operations they maintain a workshop, we are told, in which they cast metals, break and hammer iron and beat metals. Under Section 287 of the City Municipal Act no one is permitted in the City of Madras to use any place for those operations without obtaining a license from the Commissioner of the Corporation. The Tramways Company contend that by virtue of the order issued to them by the Government under the Tramways Act they are not subject to the provisions of Section 287 of the City Municipal Act. It was suggested at one stage of the argument by Sir Ramaswami Aiyar, who appears for the Tramways Company, that it would be an impossible position if the Tramways' Company were required to take out a license from the Commissioner of the Corporation for every place in which they might want to repair the lines of their tramways in the public streets by hammering or beating metal. But Mr. Krishnaswami Aiyar, who appears for the Corporation of Madras, has explained that the suit is confined to the workshops of the Tramways Company, and I shall deal with it in that sense.
3. If we examine the Tramways Act, we find that workshops are nowhere mentioned in it, except in one place, to which I shall refer in a minute. In the order issued by the Local Government to the Tramways Company, which purports to be made under the Tramways Act, there is a mention of workshops. In Clause (6) of the order the Company is empowered to establish workshops; but in that respect the order appears to go beyond the Act, and the mention of workshops in it is of no effect. Sir Ramaswami Aiyar drew our attention to Section 7 (2) (i) of the Act under which such an order may provide for
the provision of such crossings, passing places, sidings, junctions and other works, ... as may from time to time be necessary or convenient to the efficient working of the tramway,
and he suggested that 'other works' in that clause would include workshops. If I may say so, that argument appeared to be one of last resort, because it is clear that in that connection we cannot construe 'other works' as including workshops without offending against a well-established canon of interpretation. I have mentioned that in one place in the Act there is a reference to workshops. In Section 44 it is provided that the Local Government may exempt yards and workshops of the tramway undertaking from local taxation. But the power to exempt the Tramways Company from taxation under that section does not bring workshops within the scope of the Act otherwise.
4. It is clear I think that the Act is not concerned with workshops. It provides for the granting of the privilege of laying tramway lines along public streets, running tram-cars along them and various other matters, but not for the construction of workshops. Still less could it be supposed to provide for the conduct and management of workshops or operations which might be carried on in them. There is nothing to suggest that in the Act. And it is clear that it is not really essential for a tramway undertaking that those who undertake it should have their own workshops. It is quite conceivable that they should arrange to get their tram-cars and other apparatus repaired, when necessary, either in the workshops of another company or by outside engineering firms or contractors. But no doubt for such a tramway undertaking as that of the Tramways Company in Madras it is convenient and economical, and I should say prudent, to have their own workshops; but for that they require no authorisation under the Tramways Act. They are quite as much at liberty as anybody else to establish workshops for that purpose. But, if they are as much at liberty as other inhabitants of Madras to establish workshops, why should they have greater liberty than other inhabitants in the matter? Why should they be at liberty to set up, as is suggested on their behalf, workshops wherever they like in the City of Madras and to carry on operations, however offensive to their neighbours, when other people are restrained by the provisions of the City Municipal Act from doing so? If the Tramways Company were free from all control in the matter, they might set up workshops and make the most intolerable din immediately next to a place of worship or a school or a law Court. Why should they have that extraordinary liberty? On the face of it, it is both unnecessary for their purposes and very undesirable in the public interest that they should have such liberty.
5. Sir Ramaswami Aiyar suggested that there was some indication in the Act that the Tramways Company may be in a privileged position. He pointed out that under Section 35 of the Act disputes between the Company and the Corporation on certain matters are to be settled by a referee. But that does not affect the question of workshops, unless workshops come within the scope of the Act. It was also suggested that, if the Tramways Company's workshops are under the control of the Commissioner, the Commissioner might exercise that control so as to prohibit the Tramways Company from using their workshops at all and so throw their whole undertaking out of order. That does not appear to me to be at all an effective argument. The Commissioner has powers under Section 287 of the City Municipal Act over persons who conduct a number of different trades, occupations and operations. But, if we examine that section and Schedule VI, which has to be read with it, I think it is clear that the powers entrusted to the Commissioner are not intended for the prohibition of any of these trades, occupations or operations, but for their regulation in the interests of the people of Madras. If we look at Schedule VI, we find that among operations which cannot be carried on without obtaining a license under the section from the Commissioner of the Corporation are boiling paddy, washing clothes, baking bread and making soda water. Can it be supposed that it was intended that the Commissioner of the Corporation under the City Municipal Act should have power arbitrarily to prohibit any of these operations from being conducted in any part of the City of Madras Such a suggestion on the face of it would be absurd. It is possible that, if the Commissioner found that a very large number of persons were applying for licenses to carry on one of the more objectionable trades or occupations included in that schedule, he might reasonably say: 'there are quite enough people in Madras doing that business already, and, if I allow any more to do so, there will be serious nuisance to the public.' In such a case he might perhaps use his powers of refusing licenses to prohibit any more people starting those particular operations. But, apart from that, I think it is quite clear that the Commissioner's powers are intended for regulation, not for prohibition. And it has to be noticed that, if he refuses to grant a license under Section 287, he has to state his reasons for doing so: he cannot act arbitrarily. And any person who applies for a license which is refused by the Commissioner, or to which the Commissioner attaches conditions, can appeal to the Standing Committee of the Corporation. It is suggested that possibly the Standing Committee might use its powers in conjunction with the Commissioner unreasonably, perversely or for ulterior objects and so prohibit some one, the Tramways Company for instance, from having a workshop anywhere in Madras. If the Standing Committee by any chance used their powers unreasonably, perversely or for ulterior objects in that way, the person concerned would not be without his remedy in the Courts. I think we need not pursue such speculation further in this matter.
6. Workshops, as I have said, are not provided for in the Tramways Act. They are provided for in the City Municipal Act. There is nothing in the least inconsistent between the provisions of the Tramways Act and the provisions of the City Municipal Act whereby the Commissioner is empowered to require any one to take out a license before he casts metal, or hammers or breaks iron, or beats metal--the processes with which we are concerned. In my opinion, the appeal in the Tramways Company's case should be allowed with costs throughout, and a declaration should be made that the Tramways Company are not entitled to cast metal or to break or hammer iron or to beat metal in their workshops without obtaining licenses from the Commissioner of the Corporation under Section 287 of the City Municipal Act.
7. The case of the Electric Supply Corporation is not quite o simple. In that case the Corporation of Madras prayed for a declaration that the Electric Supply Corporation, which 1 shall refer to as the Electric Company, must obtain permission under Section 288 of the Madras City Municipal Act for erecting a steam-boiler in their generating station in Madras. The predecessors of the Electric Company obtained in 1905 a license from the Local Government under the Electricity Act for the supply of electricity throughout the Municipal limits of Madras subject to certain minor exceptions. The license was primarily for the supply of electrical energy to consumers. But in the license there is a statement--'The generating station is to be within the area of supply.' The contention for the Electric Company is that their license in respect of that generating station places them outside the scope of the City Municipal Act so far as their buildings, machinery and other apparatus are concerned and that the Commissioner has no right to assert that they must obtain permission from him before they can have a steam-boiler in that station.
8. There was a good deal of argument before us on the question whether under the Electricity Act a license for the supply of electrical energy could include a license for establishing a generating station. The Act is not at all clear upon that point; but for the purpose of this case I am prepared to assume that the Local Government, when they issued a license to the Electric Company for the supply of electrical energy within the City of Madras, also issued to them a license under the Act to establish a generating station. As I have said, the Electric Company contend that over that generating station the Commissioner of the Corporation has no authority whatever. A large part of the case was argued before us on the assumption that a license issued to a person for the supply of electrical energy under the Electricity Act puts him in the same position as if a special private Act had been made in his favour. I think it would not be difficult to show that a licensee under an Act of a general character like the Electricity Act, which extends to the whole of British India, is not in all respects in the same position as a person in whose favour a special Act has been made. But for the purpose of this case I am prepared to assume that the Electric Company by their license were put into the same position as if a special Act has been made in their favour.
9. A good deal of time was occupied in the arguments by a discussion of the question how special Acts and general Acts, if they come into conflict, are to be treated. A great deal of that discussion, if I may say so, appeared to me unnecessary. There is the old maxim Generalia specialibus non derogant; that is, general provisions do not derogate from special provisions. If the legislature makes a special Act dealing with a particular case and later makes a general Act, which by its terms would include the subject of the special Act and is in conflict with the special Act, nevertheless, unless it is clear that in making the general Act the legislature has had the special Act in its mind and has intended to abrogate it, the provisions of the general Act do not override the special Act. If the special Act is made after the general Act, the position is even simpler. Having made the general Act, if the legislature afterwards makes a special Act in conflict with it, we must assume that the legislature had in mind its own general Act when it made the special Act and made the special Act, which is in conflict with the general Act as an exception to the general Act. These propositions appear to me to be beyond discussion at the present day. But several cases were quoted before us to show how those principles should be applied. The first was City and South London Railway Co. v. London County Council (1891) 2 Q.B. 513. In that case a Railway Company had by its special Act been empowered to construct buildings necessary for its purposes up to a certain distance from the side of a roadway. The by-laws properly made under the general Act applicable to that neighbourhood required other members of the public, if they were constructing buildings, to keep them at a greater distance than that away from the roadway. It was held that the railway's special Act overrode the by-laws made under the general Act in that matter. The London and Blackzttall Railway Company v. The Limehouse District Board of Works (1856) 3 K. & J. 122 : 69 E.R. 1048 was a very similar case. In The London County Council v. London School Board (1892) 2 Q.B. 606, land was acquired by the School Board under their special Act, and it was held that the Board was entitled to use the whole of that land for its own purposes, providing a school-house and play-ground without leaving a strip of land for the purpose of the adjoining roadway, though under the Metropolis Management and Building Act any other person, who had bought that land and raised a building on it, would have had to leave a strip for the purpose of the roadway. Then there is a case, which is not quite so simple, Surrey Commercial Dock Company v. Bermondsey Corporation (1904) 1 K.B. 474. There the Dock Company within the enclosed area of their own undertaking, as defined by their original Act. erected a building necessary in consequence of works carried out by them under a subsequent Act, which gave them power to construct buildings and drains necessary in consequence of those works. It was held that the general control of the Bermondsey Corporation over buildings gave them no power to interfere with what was done by the Dock Company under their special Act. There it will be observed that the Dock Company were not only erecting a building which was allowed under their special Act but were doing so within the area which under their original Act was under their control and management. In each of those cases it was found that the special Act was inconsistent with, and in conflict with, the general Act, and it was held in each case that the special Act overrode the general Act. 1 But can we find any inconsistency here between the terms of the license issued to the Electric Company, so far as the generating station is concerned, and the provisions of the City Municipal Act? All that is said in the license is that the generating station must be within the area of supply. There is nothing said about its being erected in any secluded place or any circumscribed area or in any specified place at all except that it must be somewhere within the area of supply, that is somewhere--not specified--within an area which is, I believe, between 30 and 40 square miles in extent. And the license says nothing as to what the Electric Company may do in respect of that generating station--nothing about what kind of buildings they are to erect or what kind of machinery or apparatus they are to work in them--nothing apart from the one condition that the station has to be within the area of supply. It may reasonably be suggested that the matter was left so vague because it was obvious to those concerned that in erecting the generating station and fitting it up with machinery and apparatus the Electric Company would be subject to the same control as that to which other persons within the Municipal limits are subject. Can it be reasonably suggested that the Electric Company were to he left free from all control in regard to the generating station? The original licensees were a firm in London, and it may well be asked whether it is probable that they would have been intentionally given by their license an entirely free hand to construct any kind of building they liked for the generating station subject to no restrictions and fit it up with any machinery or apparatus, however dangerous, within the City of Madras. It will be observed that there was nothing in the license to tie them to putting the generating station in one part of Madras rather than in another. In that connection the Metropolitan Asylum District v. Hill (1881) 6 A.C. 193 is an interesting case. There the Metropolitan Asylum Board had a duty to build a small-pox hospital somewhere within their area. That they were bound to do under orders properly received from the Government Department concerned. But it was held that, when they erected a small-pox hospital, or proposed to erect one, in a neighbourhood where it would be a serious nuisance to the inhabitants, the fact that they erected it under their statutory powers would not exempt them from the control of the Common Law in the matter. Still less would it have exempted them from any general Act affecting that neighbourhood. There was no statutory obligation on them to erect the hospital in any particular place. But it has been suggested that Municipal Commissioner of Bombay v. G.I.P. Railway Company I.L.R. (1909) 34 B. 252 is a case which we should follow in this matter. There the Commissioner of the Bombay Corporation attempted to require a railway administration to take out a license for storing timber in their premises under the Municipal Act concerned, and it was held by the Bombay High Court that he had no power to require that. But the reason of that decision is that the Railway Company were in a very special position under the Railways Act. They were empowered to do a number of things, which would include the storing of timber, by the Railways Act, which contains the words 'notwithstanding anything in any other enactment for the time being in force,' And it has also to be observed that Section 7 of the Railways Act puts the whole existence and working of railways in this country under the control of the Government of India. Those being the circumstances of the Railway Company, that particular case appears to me to be of no help to us in the present case.
10. But Sir Ramaswami Aiyar suggested that, although there is nothing in the license to control the actions of the Electric Company in respect of the generating station, the Electricity Act provides that, before a license is given the local authority, which would be the Corporation of Madras in this case, has an opportunity of raising whatever objections it likes to the issue of the license, and it may also be observed that, if, after obtaining a license for the supply of electricity, the licensee wishes to get it extended in any way, so as to enable him to open up any roads which he has no power to open up under the original license, again the local authority has an opportunity of expressing its objections, if any. No doubt the local authority has under the Act an opportunity as have other people, of raising objections to the original issue of a license; and no doubt the local authority has to have an opportunity of expressing its objections before the license can be extended in the way I have mentioned. But in my opinion it would be quite unjustifiable to infer from that that the Corporation of Madras--I am here assuming that they raised no objections to the issue of this- license--consented to the abrogation of their control under Section 288 of the City Municipal Act in respect of the generating station. There is no reason whatever to suppose that, because they consented, or raised no objection, to the issue of a license for the supply of electricity within the municipal boundaries, they gave up their control over any boiler which might be installed in the generating station. It has not been suggested to us that there is anything to show that they did so.
11. Then Sir Ramaswami Aiyar suggested that there are provisions about arbitration in the Electricity Act which make it impossible that the local authority should be put in a position of control over the Company. There are provisions that if the Electric Company opens up roads for its purposes and fails to restore them within a certain time, the Corporation may do the work and recover the cost from the Company, and that, if there is any dispute between the two bodies about the cost, the matter shall be decided by arbitration. From that and one or two similar provisions it is suggested that we should infer that the Electric Company and the Corporation are to be regarded as coordinate bodies. An examination of the Act will show that that argument cannot be maintained. There is a provision that the Government may in certain circumstances purchase the Electric Company's undertaking and that, if there is any dispute between them about the amount to he paid for the purchase, the question shall be referred to arbitration. It cannot be suggested that, because that provision appears in the Act, we must regard the Electric Company and the Government as co-ordinate authorities in all matters within the sphere of the Electricity Act or connected with the operation of the Electric Company's works so that the Government cannot exercise any control over them. A subsidiary argument about arbitration was urged, namely that Section 19 of the Act provides that
A licensee shall, in exercise of any of the powers conferred by or under this Act, cause as little damage, detriment and inconvenience as may be, and shall make full compensation for any damage, detriment or inconvenience caused by him or by any one employed by him,
and Sub-section (2) of that section goes on to provide that save in a particular case
where any difference or dispute arises as to the amount or the application of such compensation, the matter shall be determined by arbitration.
12. It is suggested that that indicates that any dispute between the Corporation and the Electric Company in respect of any matter shall be decided by arbitration and the Corporation can exercise no control under its own Act over the Electric Company. But, if a private person suffers nuisance from anybody who conducts operations such as those which come within Section 287 of the City Municipal Act, he. has his right of suit; but that does not prevent the Commissioner from exercising his powers of regulation under the City Municipal Act to prevent inconvenience from being caused. If the intention of the Electricity Act is that a person inconvenienced by the Electric Company, instead of having a right of suit, must refer his dispute to arbitration, how can that in any way affect the power of the Commissioner to exercise his control under the City Municipal Act? The two things are not connected in the way suggested.
13. What at first sight might appear a more powerful argument for the Electric Company is that it is a public utility company operating under a statute with compulsory obligations to the public, which can be enforced by penalties. It has been suggested that such a Company, performing compulsory duties, must be regarded as exempt from the control of the local authority. In that connection several interesting cases were cited before us. In Uckfield Rural Council v. Crowborough District Water Company (1899) 2 Q.B. 664, the water company under its special Act had been empowered to build a water-tower in a particular place; nevertheless they were held to be subject to the control of the District Surveyor, to whom they had to submit the plans and sections of their proposed water-tower before its erection. There was a public utility company operating under its own private Act and proposing to build a tower in the very place where the Act empowered it to build it, and yet it was held to be subject under the general law affecting the neighbourhood to the District Surveyor, who had his duties to protect the interests of the public by seeing that it was a safe and properly constructed building. Moran & Son, Ltd. v. Marsland (1909) 1 K.B. 744 has also been quoted, another waterworks case, in which the company were empowered by their special Act to construct a reservoir in a particular place and yet were held to be subject to the general law in the matter of submitting their plans for the approval of the District Surveyor. That case is interesting because Lord Chief Justice Alverstone, who presided over the Bench, also presided over the Bench which decided Surrey Commercial Dock Company v. Bermondsey Corporation (1904) 1 K.B. 474. London County Council v. Wandworth and Putney Gas Co. (1900) 82 L.T. 562 is a similar case. London County Council v. District Surveyors Association and Willis (1909) 2 K.B. 138 is an interesting case. 'There a building was erected by the local authority itself in discharge of its own statutory duties for the purpose of a school-house, which was approved by the Board of Education, the department of Government concerned; and yet the Court held that the building required also under the general law the approval of the District Surveyor. In that case it was urged that, if the local authority in the matter had to submit to the control of two other authorities, the Board of Education and the District Surveyor, there might be a conflict of authorities. But Lord Alverstone was not moved by the argument and said that there was no reason why the local authority should not satisfy the requirements of both the other authorities. Charging Cross and Strand Electricity Supply Corporation v. Woodthorpe (1903) 88 L.T. 772 is perhaps an even more marked case. There the Electric Supply Corporation wished to build a street-box for the purpose of their supply-lines, and they proposed to do so, as required by their Act, in accordance with the regulations of the Board of Trade. They obtained the approval of the Postmaster-General, as required by their Act. They also obtained the approval of the road authority. Nevertheless the Court held that under the general law they were bound also to obtain the approval of the District Surveyor, who had public interests to guard different from those which the other authorities had to protect. There it will be seen that there were four authorities concerned, who might have been in conflict. But Wills, J., when that suggestion was put forward, replied that it might be supposed that the authorities were reasonable men, who would adjust their requirements in the interests of the public. Those cases are interesting because they concerned statutory bodies or public utility bodies working under private Acts of their own, all of which had compulsory duties to perform enforceable except in the case of the School Board by penalties, and in two of the cases there was a possibility of conflict between the various authorities which they had to satisfy. But in each of those cases it was found that there was no inconsistency between the special Act and the general Act, and therefore the bodies, concerned were subject not only to the provisions of their special Acts but also to the provisions of the general Acts.
14. We need not go so far as England to find Cases where persons are required to take out licenses from two authorities in regard to the same matter. Under the Arms Act, if a shopkeeper in Madras wishes to sell arms and ammunition, he must get a license from the Commissioner of Police as representative of the Government: but he must also get a license from the Commissioner of the Corporation for storing ammunition. If a shop-keeper wishes to sell alcoholic spirits, he must get a license from the Abkari Department; but he must also get a license from the Commissioner of the Corporation for storing the spirits. If one of the oil companies which supply this country wishes to have an oil-container for anything over 500 gallons of petroleum, it must get a license from the Government under the Petroleum Act, But, if it wishes to have a container within the limits of the City of Madras, it must also get a license from the Commissioner of the Corporation. That instance perhaps illustrates best the necessity for such double control. It is possible that one of the oil companies might acquire a strip of land along the Marina and propose to build there a number of huge oil-containers. The authorities concerned under the Petroleum Act might issue a license for that, having first assured themselves that the containers and the installation would be safely constructed and would cause no danger to the public. But the Commissioner of the Corporation, if he was asked for a license for storing oil in those containers, would very properly refuse to grant it, refuse to allow a row of huge and hideous containers to be built upon the edge of the Marina and so spoil one of the great attractions for which this City is famous all over the world. He would then be acting under the powers given to him by the City Municipal Act for the general comfort and convenience of the inhabitants of Madras. There is nothing inconsistent in the sanction of two authorities being required in cases such as that.
15. But, if Sir Ramaswami Aiyar is not able to satisfy us that in this case we have a special Act or anything equivalent to a special Act in conflict with a general Act, he is prepared to go almost to the other extreme and has urged in another part of his argument that, so far from being a special Act, the Electricity Act is a Code containing the whole law on the subject of electricity in such a comprehensive way that those who get licenses under the Act are free from the control of any other law or authority in respect of their operations, buildings, machinery and apparatus. That, I think, is a contention very difficult successfully to maintain. To begin with, the Electricity Act does not purport to be a Code. It does not even purport to be a consolidating Act like the Arms Act, the Abkari Act or the Petroleum Act. It is an Act to amend the law relating to the supply and use of electrical energy. So far from being obviously complete in itself, as I have mentioned, a great deal of time was spent before us in trying to ascertain whether a license issued under this Act can extend to a generating station and whether, as I have assumed, a license under the Act can be held to include a license to generate electricity. It is quite clear that the Act is directed to the supply and use of electricity and not primarily to generation. If we examine the Act, I think it is clear that it is not intended to be a comprehensive Act and to include everything concerning the generation, supply and use of electrical energy. If a man wishes to establish a station to generate electricity for his own domestic or industrial purposes or for conducting scientific experiments, he does not require any license under the Act whatever. In my opinion the Act can in no sense be described as a 'Code' unless we use that word as meaning an Act including all the provisions which the legislature has thought it necessary to enact on any particular subject, whether those provisions are very restricted or very comprehensive. Speaking for myself, I see no purpose in using the word 'Code' in that sense. What is more interesting and noticeable about the Electricity Act is that there are no words in it such as those I have mentioned in the Railways Act--'notwithstanding any other enactment in force' or anything of that sort. There is nothing explicit in the Act to show that it was intended to exclude the operation of any other Act. It will be seen that there is nothing in the Act to show what kind of machinery may be used in the generation of electrical energy, what kind of apparatus may be used in connection with the motive-power selected, or what authority is to control the use of that machinery or the use of that apparatus except Section 37 (2) (f), which empowers the Governor-General in Council to make rules for the whole or any part of British India for the protection of persons and property from injury by reason of contact with, or the proximity of, or by reason of the defective or dangerous condition of, any appliance or apparatus used in generation. Sir Ramaswami Aiyar suggests that that rule-making power excludes the control of any local or other authority. I cannot' agree with him. The power to make general rules for the whole of British India or any considerable part of it cannot make local control and the consideration of immediate local conditions unnecessary. We are asked to suppose that, because in their license* the Electric Company are empowered to have a generating station somewhere within the limits of Madras, they are free from the ordinary control of the local authority in respect of the steam-boiler which they use to provide motive-power for generation. It is the steam-boiler with which we are concerned in this case. We have ascertained that, in spite of this suggestion that the Electricity Act is a Code complete in itself, which excludes the operation of all other Acts and authorities, this very steam-boiler is regularly inspected by the Inspector of Boilers under the Boilers Act; and it has not been suggested to us after the discovery of that fact that the Boilers Act does not apply to this boiler. Under the Boilers Act no one is allowed to use a boiler of more than five gallons in capacity until it has been examined by the Inspector of Boilers and a certificate has been obtained from the Chief Inspector of Boilers fixing the pressure up to which it may be used. A licensee under the Electricity Act is subject to the control of the Boilers Act in that way just as every one else is. But that is impossible to fit in with the theory that the Electricity Act and the license issued under it have the effect that those who get the license are exempt from the control of any authority under any other Act. Nor can it be supposed that, if the Electricity Company now wished to extend their generating station by raising another building, they could ignore the building regulations, to which every one else in Madras is subject, that they could raise the building to any height they liked, could make it overhang a public highway, could ignore all sanitary regulations, or so arrange that the drainage from the building went, not into the municipal system of drains, but into a public road. I can see no reason whatever for supposing that, because the Electric Company have got a license under the Electricity Act, they are free from the building regulations in such matters. Nor can it he suggested reasonably that, if they chose to give up steam as their motive-power for generation and to instal petrol-engines for that purpose, they could store petrol to any amount for their engines without obtaining any license for doing so. Nor can we suppose that, because this boiler is often subject to the inspection of the Inspector of Boilers, the control of the Commissioner of the Corporation under Section 288 of the City Municipal Act is excluded. The Inspector of Boilers looks to the safety of the boiler. He has to see that it is in proper working order and has to see that it is not used at an excessive pressure. But the Commissioner of the Corporation in the interests of 'the public may have other matters to look to. Under the Section he may refuse to give permission for the use of a boiler if in his, opinion its position is objectionable. If, for instance, the boiler was put close to a public highway without any wall between it and the road so that, when the furnace was open, sparks might fly out on to passing carts, the Commissioner might very reasonably say that that' position was very objectionable, though the Inspector of Boilers thought it quite safe from his point of view, as the boiler was not likely to explode. Under Section 288(3) the Commissioner is empowered to insist that any chimney in connection with any steam-boiler in the City shall be of such height and dimensions as he may fix. That may be a most important point; as, if the chimney from the furnace of this boiler were too low, it might happen that in the prevailing winds smoke from the chimney would blow regularly every afternoon into a mosque or into a fruit market. The control of the Commissioner would be very necessary in the interests of the inhabitants of Madras or those of that part of the town in such circumstances. There is therefore nothing unreasonable in this boiler being subject to the control of the Commissioner under Section 288 of the City Municipal Act.
16. Finally it has been suggested, as in the other case, that the Commissioner might exercise his powers in connection with this boiler in a perverse and unreasonable way and so bring the operations of the Electric Company to a standstill. In regard to that it may be noticed that, if the Electric Company had proceeded under the City Municipal Act in the first instance, they would have obtained the permission of the Commissioner before the boiler was put up and so there would have been no likelihood of their operations being broken off by any order of the Commissioner. But apart from that the contention that the Commissioner might act in an arbitrary and perverse way so as to bring the operations of the Electric Company to a standstill is in my opinion of no weight whatever. Apart from the facts that his powers are given to him for regulation, not for prohibition, that he has to give reasons for his orders and that there is an appeal against his orders, the possibility that he might act perversely is no reason for questioning his powers. The dhobies of Madras perform services for the citizens of Madras at least as important as the service performed by the Electric Company. Most people, i suppose, would agree that it is more essential to have clean clothes than to have electric light. The dhobies of Madras might very well think that they carry on their occupation by a higher right than a license from the Government, that they do so by custom, tradition, birth and caste. But, if they were to refuse to submit to the control of the Commissioner Tinder Section 287 of the City Municipal Act on the ground that they feared that the Commissioner might be so perverse as to prohibit them from washing clothes within the City of Madras at all, would any one listen to them for a moment? All of us are subject to various authorities. We cannot escape submission to those authorities by saying that we fear that the powers of the authorities will be abused. If that were allowed, all Government and administration would be at an end.
17. In my opinion there is nothing inconsistent between the Electricity Act or the license issued under it to the Electric Company and the City Municipal Act in respect of the boiler with which we are concerned, and there is no reason to suppose that the Electric Company are exempt from the control of the Commissioner of the Corporation under Section 288 of the City Municipal Act. In my opinion this appeal also should be allowed with costs throughout, and a declaration should be made that the Electric Company are not entitled to use the steam-boiler in their generating station without obtaining the permission of the Commissioner of the Corporation under Section 288 of the City Municipal Act.
18. In each of these appeals the Advocate's fee allowed will be Rs. 250.
Anantakrishna Aiyar, J.
19. L.P.A. No. 265 of 1927.--I agree. It is enough for the disposal of this particular appeal to consider the provisions of the Tramways Act. The argument in the Lower Court, as far as I could see, did not proceed after having due regard to the special provisions of the Tramways Act. The two cases seem to have been argued on a common basis, namely, whether when a special Act contains provisions and confers special powers, they could be taken to be in any way affected by the general powers conferred upon another body by a later general Act. That is the question which will have to be discussed in detail in the connected appeal. For the purpose of disposing of this appeal, as was pointed out by my learned brother, it is unnecessary to discuss this question. However convenient it might be for the Tramway authorities to own and possess workshops of their own, the Act, for reasons best known to the legislature, has not provided for workshops to be necessarily owned by Tramway Companies as part and parcel of their undertaking. That being so, the basis of the distinction which the learned advocate for the Tramways Company sought to rely upon fails. It is unnecessary for the purpose of disposing of this appeal to say more on this particular point. I may, however, say, as the question has been very fully discussed before us in the connected appeal, that even if I should be mistaken in my above view regarding the Tramways Act, there is nothing in that Act which, in my view, would preclude the application of Section 287 of the City Municipal Act. There is really nothing inconsistent in the provisions of the two Acts on the point now before us. As I propose to say something on the rules governing the applicability of a special law in relation to a later general enactment in the connected appeal, I do not think it necessary to say more at this stage.
20. I agree that the appeal should be allowed. I also agree to the form which the decree is to take in this particular case.
21. L.P. Appeal No. 264 of 1927.--I agree that this appeal should be allowed. The question that arises in this case is whether the Madras Electric Supply Corporation, hereinafter called, for purposes of this judgment, the Company, should take the permission of the Commissioner of the Corporation of Madras in connection with a steam-boiler which the Company has installed in its workshops and generating stations at Basin Bridge. The learned City Civil Judge, and on appeal the learned Judge of this Court, both held that the Company was not bound to take the permission of the Commissioner under Section 288 of the City Municipal Act. It was argued by the learned advocate who appeared for the appellant--the Municipality--first, as a sort of a preliminary objection, as I understood him, that the Electricity Act deals only with the supply of electrical energy and not with the generation thereof and accordingly the boiler admitted to be installed for the purpose of generating electrical energy could not possibly come within the scope either of the Act or of the license which the Company has got from the Government under the Indian Electricity Act. If this objection is sustained, then straightway the appeal has to be allowed. I may mention that this objection was not taken either in the Lower Court or before the learned Judge on appeal. The provisions of the Electricity Act have to be carefully examined for the purpose of deciding whether there is really anything in the objection. No doubt the preamble of the Act speaks of the supply and use of electrical energy, but I do not think that that should be taken to be conclusive of the matter. Though 1 cannot say the Act is very clear, yet, having regard to the various sections of the Act to which our attention was drawn by the learned advocate for the Company (respondent), I do not think that this appeal should be allowed on such a. narrow ground as the one suggested by the learned advocate for the appellant. Sections 7, 32, 33, 34 and 37, among other sections of the Act, deal with generation of electrical energy; and there are provisions in the Act, in cases where the license is revoked, as to whether the generating station also passes to the purchaser to whom the property may be sold,--the policy of the Act being that in the absence of a declaration that the generating station should not be taken to be part of the undertaking, it would pass. Section 37, which empowers the Governor-General to frame rules also refers to rules that may be made with reference to the generation of electrical energy. Further, there is the definition of the word 'works' in Section 2, Clause (n). 'Works' includes any building, machinery, etc. and though it would have been more satisfactory if the Act had been more explicit regarding generating stations also, I think, having regard to the observations of Scrutton, L.J., in Farnivorth v. Manchester Corporation (1929) 1 K.B. 533, that the word 'works' includes buildings, and, therefore in such cases, should be taken to include generating stations also in the absence of anything to the: contrary. The following are the observations at page 541:
The Company could construct such works (which include buildings and generating stations) as were necessary and incidental to such supply.
22. The heading of the English Statute which was the subject of discussion in the English case was also similar to the heading and preamble of the Indian Act, namely, for the supply of electrical energy, etc. On the whole, I have come to the conclusion that I should not uphold the preliminary objection and dispose of the appeal on that basis only. 1 therefore propose to proceed to consider the appeal on its merits.
23. Another point was raised by the learned advocate for the appellant, namely, that, as the Electricity Act on which the Company relies is an Act of 1910 whereas the City Municipal Act is one of 1919, the later Act should be taken to overrule the provisions of the earlier Act, and that without considering anything else for the purpose of disposing of this appeal, the earlier Act should, if I understand him properly, be ignored. I do not think that this is a proposition to which I can accede. Various decisions were brought to our notice by the learned advocate for the respondent where Courts had to consider the effect of two Acts; one special but earlier Act and a second, a general but later Act; and the mere circumstance that the general Act was one of later date has not been held in any of the cases to conclude such a question. I therefore think that the second point on which the learned advocate for the appellant relied is also not sustainable.
24. A third point was, raised by him, and it turned on the provisions of the City Municipal Act. The learned advocate drew our attention to various sections of the Municipal Act which contain exemptions either in the case of certain persons or in the case of particular kinds of property from taxation. He drew our special attention to Sections 101 and 102 and observed that under Section 102 the Madras Port Trust, which under a prior Act enjoyed exemption from taxation, has been brought in, though made liable only to pay a lower rate of tax. But I think that such considerations, though relevant, are not in any way conclusive of the real question before us which has to be decided on a reference to the particular provisions relevant to the case. Again it cannot be said that, because the Electricity Act contains certain provisions authorising the Company to break open highways for particular purposes, their powers are confined only to the same and that they enjoy no other rights under the Act. As I said, all this would be of use in construing the particular provisions of the Acts which are alleged to be consistent or inconsistent with each other, but by themselves these considerations would not be, conclusive on the question before us.
25. On the other hand, on the side of the respondent-company, the learned advocate argued that, because certain obligations were imposed upon them by statute, therefore, it must be taken that all incidental and subsidiary rights which they should have for the purpose of properly exercising their operations with a view to discharge their obligations should be taken to have been preserved to them and not in any way affected by any other enactment. He drew our attention particularly to Section 3, Sub-clause (1), Section 4, Sub-clause (11), Section 22 and Section 42 among others of the Electricity Act. It is true that obligations are imposed on the Company by the Act and by the license, but the mere fact that certain obligations are imposed and even penalties attached for the non-fulfilment of those obligations does not in my opinion free them from obligations imposed by other enactments, if on a proper construction of such other enactments the Court comes to the conclusion that they are liable to those other obligations also. The existence of such obligations does not necessarily give them a free exemption from provisions of other Acts which have operation over a particular locality or over the people inhabiting or carrying on operations in a particular place. No doubt in construing any particular provision on which the decision of a case might turn, it would be legitimate to have this consideration also in view, but it should not be taken to be in any way conclusive of the question. Similarly, another argument was advanced by the learned advocate for the respondent that the Electricity Act should be taken to be a Code in itself and that the rights and liabilities of the parties should be adjudicated upon only on the basis of the provisions contained within the four corners of the code and the rules framed thereunder. I am unable to agree. It is not necessary for me to go through the ground covered by the judgment of my learned brother on this point. The admitted existence of control under the Boilers Act appealed to me in this connection. On going through the Electricity Act, I find that the Act does not make provision for many things for which one would expect provision to be made in the Act if it was intended to be a code: for the essence of a code is to be exhaustive. As I said, this was a new argument suggested by the learned advocate for the respondent before us, and for the other reasons given by my learned brother I do not think that we must proceed on the footing that the rights and liabilities of the parties are governed only by the provisions of the Electricity Act and the rules framed thereunder and by no other enactments outside the same.
26. Having now noticed the preliminary arguments, so to speak, urged by the learned advocates who appeared in the case for either side, I proceed to discuss the real question that arises for decision. Before doing so I may state that the general rule of construction of statutes contended for by the learned advocate for the respondent is not open to question. The learned advocate for the appellant does not question the rule and a reference to legal authorities makes it absolutely clear that the rule contended for by the respondent has been taken to be the rule in existence from very early times. The learned advocate for the respondent referred us to a case in Barker v. Edger (1898) A.C. 748, the particular passage he referred to being at page 754. It is a judgment of the Privy Council; Lord Hobhouse remarked as follows:
The general maxim is 'Generalia specialibus non derogant.' When the legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms.
27. Speaking with reference to this principle, Lord Justice Turner observed as follows in The Trustees of the Birkenhead Docks v. The Birkenhead Dock Company (1853) 23 L.J.Ch. 457;
The rule seems to be a very ancient and settled principle of law. That appears to be the rule as laid down by the learned Judge Jenkins in Sir Foulke Grevil's case (reported in his work called 'Eight Centuries of Reports'--the Third Century, case 41, page 120). Although the principle of law is not open to any doubt, difficulty often arises in its application to particular cases.
28. In this case no reference is made to any steam-boiler in the Act, or in the license granted to the Company. Reliance is placed by the Company on Clause (7) (f) of its license which is to the following effect: 'The generating station is to be within the area of supply.' If I understood correctly the argument of the learned advocate for the respondent on this point, his argument seems to be this: The Electricity Act is a special Act; the license is given under that Act; the license must be taken to incorporate all the relevant portions of the Act into it; the license states that the generating station is to be within the area of supply. Under Rule 4 the area of supply is practically the whole of the City of Madras; therefore, it was argued that this gives the Company an unrestricted right to erect a generating station anywhere within the twenty or thirty square miles of Madras, and for that purpose to instal steam-boilers anywhere it liked within that area. In support of this position certain English and Indian decisions were referred to.
29. On behalf of the respondents great reliance was placed on three English decisions reported in City and South London Railway Company v. London County Council (1891) 2 Q.B. 513, London County Council v. London School Board (1892) 2 Q.B. 606 and Surrey Commercial Dock Company v. Bermondsey Corporation (1904) 1 K.B. 474. In the first of the above cases, a railway company had obtained statutory powers to make an under-ground railway with all necessary works connected therewith and to take and use such of the lands delineated on the deposited plans as might be required for that purpose. The Company built a station which was found necessary for the purposes of the railway within the limits of deviation, a part of which projected beyond the general line of buildings in the street. It was held that Section 75 of the Metropolis Management Act of 1862 did not apply. Lindley, L.J., observed at page 521 as follows:
Upon the true construction of the special Act it is impossible to read the special and the general Acts together in such a way as to make them harmonise. . . . The limit set by the Act of Parliament is set geographically by the lines delineated on the plan, and is set also by the condition that every structure shall be necessary for the purposes of the undertaking.
30. Fry, L.J., observed at page 525:
It is obvious, therefore, to my mind that that Clause (in the special Act is inconsistent with the general statute.
31. Similarly, Lopes, L.J., remarked at page 526:
I think that the construction which I put upon this section makes it inconsistent with the general statute.
32. Holding therefore that the provisions of the special Act were inconsistent with the provisions of the general Act, the Court held that the special Act prevailed.
33. In London Comity Council v. London School Board (1892) 2 Q.B. 606 it was held that the statutory power to erect a school on a particular site was. inconsistent with the application to that building of the provisions of the Metropolis Management and Buildings Act (Amendment Act), 1876, forbidding the erection, without the consent of the Metropolitan Board of Works, of any building, wall or fence, within twenty feet of the centre of a highway. There, too, the Court held that where there was an inconsistency between a special Act and a general Act, the special Act should prevail.
34. In the third case Surrey Commercial Dock Co. v. Bermondsey Corporation (1904) 1 K.B. 474 it was held that where a dock company obtained statutory authority to make certain alterations in their dock premises, and it became necessary as ancillary to those alterations to demolish a certain workshop and erect another in its place, it was not necessary to give notice to the local authority of their intention to erect the new workshop; the Court held that the interference and control involved in Section 76 of the Metropolis Management Act was inconsistent with the powers conferred upon the dock company under their special Act.
35. These cases were considered in a later case reported in Moran & Son, Ltd. v. Maryland (1909) 1 K.B. 744. A water company was empowered by a special Act to make and maintain in the lines and situation and according to the levels shown on the deposited plans and sections, the reservoirs . . . and other works for collecting and distributing water. The company built two big reservoirs under powers given to them by the Act. Under the London Building Act the builder or other person causing or directing the work to be executed shall serve on the District Surveyor a building notice respecting the building or structure or work. The District Surveyor was bound to supervise any building or work affected by the provisions of the Act for securing the due observance of the provisions of the Act and bylaws. Some particular buildings were exempted from the operations of the Act. The question arose whether it was the duty of the District Surveyor to supervise the construction of these reservoirs and whether he was entitled to the fees specified by the London Building Act for such supervision. The Magistrate observed as follows at page 748:
I do not see anything inconsistent between the powers of the water works company and the powers of the surveyor under the Building Act, and I accordingly make an order for payment of the sums claimed by the District Surveyor. I have arrived at this conclusion in consequence of the decisions of the Judge of the High Court in the cases reported in London County Council v. Wandsworth and Putney Gas Company (1900) 82 L.T. 562; Charing Cross and Strand Electricity Supply Corporation v. Woodthorpe (1903) 88 L.T. 112 and White chapel Board of Works v. Crow (1901) 84 L.T. 595.
36. On a case stated by the Magistrate, the Court upheld his view. Lord Alverstone, C.J., after noticing City and South London Railway- Co. v. London County Council (1891) 2 Q.B. 513, and London County Council v. London School Board (1892) 2 Q.B. 606 and distinguishing them proceeded to observe as follows with reference to Surrey Commercial Dock Co. v. Bermondsey Corporation (1904) 1 K.B. 474;
There the dock company had special statutory powers to construct certain works, and I will assume that the deposited plans did not specify in detail the mode in which those works were to be constructed. In carrying out those works it became necessary as ancilliary thereto to demolish a workshop and to erect a new workshop in its place. The question arose under Section 76 of the Metropolis Management Act which provides for notice to be given to the local authority before beginning to lay down or dig out the foundations of any new house or building or to rebuild' any house or building. I was a party to that decision, and we held that the interference and control involved in Section 76 of the general Act of 1855 were inconsistent with the powers conferred upon the dock company by their special Act, and that therefore the dock company need not give notice to the local authority of their intention to erect the new workshop. We did not rely solely upon the section of the special Act which gave the company power to construct the works, but, taking that section with other sections in the Act, we thought that the provisions of Section 76 of the general Act were inconsistent with the powers conferred upon the company by their special Act. The question therefore before us is whether Section 5 of the special Act of 1894, which gives power to the water company to make and maintain the reservoirs is inconsistent with the supervision of the District Surveyor under the London Building Act, 1894. In my opinion it is not.
37. The learned Chief Justice made the following further observations with reference to the other English cases quoted before him:
It cannot be put higher than the provisional' order authorising the construction of the street box under the foot pavement in the Street in the three cases I have mentioned in the earlier part of this judgment (Law Times. cases), where the requirements of the Board of Trade and of the Postmaster-General had to be complied with. In those cases this Court was of opinion that there was nothing in the control given to the Board of Trade and to the Postmaster-General which ousted the right of supervision given to the District Surveyor. We are bound by those cases, and they seem to me to be indistinguishable from the present case.
38. Bigham, J., remarked at page 758 as follows:
Under Section 138 of the London Building Act every building or structure shall be subject to the supervision of the District Surveyor. I do not feel disposed to place any limitation upon those words unless the provisions of the special Act are inconsistent with the supervision of the District Surveyor over the particular work. 1 cannot find anything in the special Act which is inconsistent with the application of that section to the construction of these reservoirs. As, therefore, there is nothing inconsistent therewith in the special Act, and as the London Building Act applies to all buildings and structures, it is the duty of the District Surveyor under the Act to supervise the construction of the reservoirs, and he is entitled to fees for the work of supervision.
39. Walton, J., agreed and made the following observations at page 759:
It is then said that even if there are certain requirements of the London Building Act, 1894, which will prima facie apply to these reservoirs, still the provisions of the special Act, under which the reservoirs were constructed, are inconsistent with the supervision of the District Surveyor, and that therefore the sections of the general Act relating to the supervision of the District Surveyor do not apply. 1 have not myself seen anything in the special Act which is inconsistent with the requirements 1 have referred to. There seems to me to be nothing in the special Act which prevents the sections of the general Act relating to supervision from applying to the construction of these reservoirs. It is not our province to consider whether the supervision of the District Surveyor in a case like the present is useful or necessary for the protection of the public. We have only to consider whether the case comes within the Act, and, in my opinion it does.
40. On behalf of the appellant we were referred to Uckfield Rural Council v. Crowborough District Water Company (1899) 2 Q.B. 664, London County Council v. Wandsworth and Putney Gas Co. (1900) 82 L.T. 562, Galbraith Brothers v. Dicksee (1910) 102 L.T. 890, Maran & Son, Ltd. v. Marsland (1909) 1 K.B. 744 and London County Council v. District Surveyors' Association and Willis (1909) 2 K.B. 138.
41. In Uckfield Rural Council v. Crowborough District Water Company (1899) 2 Q.B. 664, a water works company by a special Act was empowered to erect and maintain a water tower in a specific place. Under Section 157 of the General Public Health Act, by-laws were made by which any person intending to erect a building should give the local authority notice of his intention and of the date on which the building Was to be commenced, and also deliver to them plans and sections of it, and a description of the materials with which it was to be constructed. The Court held that the water works company were bound to comply with the by-laws made by the local sanitary authority. Ridley, J., was one of the members of the Court which decided this case and some of the other cases relied on by the appellant. A few sentences from the judgment of the learned Judge Ridley, J., 'show the reasoning of the learned Judge for his decision:
The Crowborough Water Company, under Section 25 of the special Act, had authority to put up a water tower in a particular field. The question for our determination is whether they were entitled to do it without submitting plans and sections to the district council, and giving the council notice before beginning the work, in accordance with by-laws 93 and 94 made by the district council under the Public Health Act, 1875. I am of opinion that the water company were not so entitled. It was contended on their behalf that when once they had authority, under their special Act, to put up the tower they might put it up as they chose. I cannot accept that view. The precise effect of the special Act is to give them power to put up in another person's field a water tower--that is, they had power to put up the tower in that field as though the land was their own. They required a statutory power in order to enable them to take and use the land. When they had got as far as that they were, in my opinion, in no better position than the private owner who, along with them and all others, must, unless specially exempted by some statutory provision, comply with the provisions of the Public Health Act, under which Act the local authority may make by-laws with respect to the commencement and construction of new buildings. It was contended for the respondents that they were not bound by the by-laws, and that the Public Health Act, 1875, did not apply to them because it was not incorporated with their special Act. . . . But it does not follow that, because the Public Health Act, 1875, is not incorporated with the special Act, the water company are not bound, like everybody else, by the provisions of the earlier Act. If the directors of the water company were, in putting up their water tower, to commit a breach of the criminal law, it could not be contended that the criminal law did not apply to them; yet the argument put forward on their behalf must mean that no Act of Parliament bears upon them at all unless specially mentioned in their special Act. The real question is whether, under Section 93 of the Waterworks Clauses Act, 1847, the water company are protected against the provisions of the Public Health Act, 1875, or are subject to those provisions. 1 am of opinion that the water company are not exempted from those provisions.
42. Again at page 671 the learned Judge proceeded as follows:
The principle laid down in them comes to this: that if there is an inconsistency between a special Act and a general Act the provisions of the special Act are not overridden by those of the general Act.
43. His Lordship quoted City and South London Railway Co. v. London County Council (1891) 2 Q.B. 513 (the railway case), and observed with reference to that case as follows at page 672:
The Court of Appeal held that the powers given by the special Act were inconsistent with those given by the general Act, and on that ground they held that the, county council could not interfere with the building. I think it is clear that but for that inconsistency the decision would have been otherwise. There as no such inconsistency in the present case. The power given to the water company is to put up a water tower in a particular, field--nothing more. If the district council had required that it should be put up in another field they would have required something inconsistent with the power given to the water company by their special Act. What the county council did in fact require did not affect the power of the water company under their special Act.
44. It must be noted in connection with this case that the water company in question was bound to supply a certain quantity of water to the area concerned, and yet it was held that the water company was subject to the provisions of the Public Health Act, and bound to give notice as required by the by-laws and supply plans, etc., to the local authority in connection with any building which the water company might put up in carrying out its work and discharging its obligations.
45. In my opinion this last case is very similar to the case we have to decide, and adopting the reasoning of Ridley, J., we have to hold that the respondent is subject to the provisions of Section 288 of the City of Madras Municipal Act. The decision in Uckfieid Rural Council v. Crowborough District Water Company (1899) 2 Q.B. 664 has been followed in the two cases reported in the English Law Times mentioned already.
46. Having examined the provisions of the Indian Electricity Act, the license given to the respondent, and the provisions of the City of Madras Municipal Act, it seems to me that there is no inconsistency in applying Section 288 of the City of Madras Municipal Act to the respondent. I do not understand that the plans, deposited by the respondents mentioned anything about any steam-boiler, or about the position in which it was to be installed. The reasoning adopted by the English Courts in the cases cited on behalf of the respondent does not, in my opinion, apply to the present case. The position of a Railway Company, authorised by its special Act to put up any buildings necessary for their purpose in the place covered by the lines marked in the plans deposited, is different from the position of the respondent who is only bound to have the generating station within the City of Madras (a rather wide area) and not on any specified plot. The respondent's case is also different from the case of an authority entitled to put up a school building on a particular plot. The present case would seem to be similar to the class of cases decided by Ridley, J., referred to above. I may also observe that the circumstance that the plan deposited might show the necessity for a building and even its position would not necessarily lead to the inference that all outside supervision under the general Act is necessarily excluded. I may in this connection quote the following passages from the judgment of Lord Alverstone, C.J., in Moron & Soni Ltd. v. Marsland (1909) 1 K.B. 744 it was observed:
It was suggested that the deposited plans gave such a description of the reservoir as to render the supervision of the district surveyor unnecessary, inasmuch as they indicated how the work was to be carried out. We have seen the deposited plans, and they seem to us to contain nothing more than ordinarily appears upon such plans, such as the site, levels, and size of the reservoir. They do not prescribe, for instance, how the reservoirs are to be constructed, the quality of the bricks, stone, or other materials, or how those materials arc to be bonded or put together, nor do they contain any provisions for the safety of the public. Therefore the case raises the simple question whether the mere statutory power to construct a work such as a reservoir is of itself sufficient to oust the application of those provisions of the London Building Act, 1894, which relate to the supervision of the district surveyor. Speaking for myself, I have no doubt that some of the things which have been mentioned to us--such, for instance, as the thickness of the concrete, the quality of the mortar, and . the mode of binding the materials together--require careful supervision, and I have no doubt that proper supervision is given by competent engineers. But I can see nothing in the special Act to show that the supervision which must, he exercised by the engineers is to supersede the supervision of the district surveyor.
47. In In re Verrall: National Trust for Places of Historic Inurest or Natural Beauty v. Attorney-General (1916) 1 Ch. 100, Astbury, J., observed that
A private Act cannot exclude application of public Acts unless and to the extent that the powers are expressly excluded or rendered impossible of application by necessary implication.
48. In Halsbury's Laws of England, Vol. 27, the law on the point is stated as follows in paragraph 322 at page 169:
Where in the same or a subsequent statute a particular enactment is followcd by a general enactment, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment is operative, and the general enactment is taken to affect only those other parts of the particular enactment to which it may properly apply.
49. In paragraph 362 at page 186 it is stated that
A special statute containing no provisions inconsistent with a general statute, is, however, controlled by the latter, even if this is not expressly incorporated.
50. It is clear that similar difficulties have arisen in England with reference to disputes arising between companies which are in the position of the Electrical Company here and local authorities, and Courts have come to the conclusion that unless there be real inconsistency between the two Acts, such companies come under the supervision imposed by the local Acts also. Now in the present case all that we have got in the license granted to the respondent is that the generating station should be within the City of Madras. Further, as I have already remarked, there is nothing in the Act or the license about erecting any steam-boiler. Electricity can be generated either by the aid of steam-boilers or otherwise. If the Company's present contention be upheld, it would necessarily follow that if to-morrow they should make up their minds to generate energy by other means, then they should have the same privileges attached to them with reference to the new machinery and apparatus which they might like to bring into existence for the purpose. Again, how is the existence of a power in the Commissioner under Section 288 of the City Municipal Act in any way inconsistent with the exercise of such rights by the Company? It was argued that the Commissioner might in his discretion refuse permission and that such an order might be upheld by the Standing Committee on appeal. If there were proper grounds for such refusal, the Commissioner would be right in his view, as also the appellate authority. But if the suggestion is that the power is likely to be misused by the Commissioner, then the answer should be that the Court has no business to assume misuse of power by any officer in whom it is vested by law. If in any particular case a person invested with such authority be found to have exercised it on irrelevant grounds or to have brought to bear upon his decision considerations which should not have been brought to bear upon (he same, then Courts are available to persons who feel themselves aggrieved thereby. I do not think that such an argument should be allowed to have undue weight in the matter of construction of these two Acts.
51. Then something was mentioned with reference to the admission said to have been made in the Lower Court on the side of-the Municipal Corporation. All that I understood that the admission was really meant to amount to was this:--Having regard to the way in which the Electric Company is at present carrying on its operations, a steam-boiler is necessary for the purpose of generating electrical energy. As I said, nothing really turns upon the admission. We have to construe the provisions of the two Acts; and having regard to the way in which Acts similar in scope have been construed by Courts in England, I do not feel any difficulty in coming to the conclusion that the provisions of the two Acts are not in any way inconsistent and that the two can stand together and have operation so far as the point before us is concerned.
52. Then, two Bombay decisions were quoted before us, and it was argued that the same construction should be placed on the Electricity Act. The decisions are reported in Municipal Commissioner of Bombay v. G.I.P. Railway Co. I.L.R. (1909) B. 252 and G.I.P. Rail way. Co. v. Municipal Corporation Of the City of Bombay I.L.R. (1913) B. 565. Section 7 of the Indian Railways Act contains the following provision:
Notwithstanding. anything in any other Act for the time being in force.
53. With these words occurring in a particular enactment, it is impossible to say that any other general enactment should be allowed to have operation against the positive wordings and specific provisions of that particular enactment.
54. Section 288 of the Madras City Municipal Act enacts as follows:
(1) No person shall, without the permission of the Commissioner, erect anywhere any steam-boiler or machinery by the use of which smoke, smell, noise, vibration, dust or floating particles of combustible or other matter are produced, or danger is likely to arise to the inhabitants of the neighbourhood.
(2) The Commissioner may refuse to give such permission if he is of opinion that such boiler or machinery in the proposed position is objectionable by reason of the density of the population in the neighbourhood or will be a nuisance to the inhabitants of the neighbourhood, or may grant such permission under such restrictions and regulations as he thinks fit.
(3) All chimneys in connexion with any steam-boiler or machinery erected within the City shall be of such height and dimensions as the Commissioner may determine.
54. Under that section it will be noticed that the Commissioner may refuse permission if any steam-boiler in the proposed position is objectionable. He may determine the height of the chimney of any steam-boiler. He may grant permission under such restrictions and regulations as he thinks fit. As I have already mentioned, this power on the part of the Commissioner is not inconsistent with the powers conferred on the company under the license granted to the company under the Electricity Act. .
55. In this connection, I think it is also relevant to consider that, if we allow the contention raised by the Electric Company, it would follow that several other provisions of the City Municipal Act would not be applicable to them at all. There are provisions relating to buildings contained in Sections 232, 235, 243 and 245 of the Act, and with reference to some of them similar questions have arisen in England and Courts have there held that such companies are bound by similar provisions relating to buildings. In the absence of more definite provisions in the Electricity Act, I do not see any reason for adopting a construction of the Act which will make many of the salutary provisions designed for public safety and benefit practically a dead letter with reference to such companies, if the company's contention be upheld.
56. Finally, it was argued that the existence of two authorities on a particular matter is always irksome and would lead to friction and that such a position should not be accepted unless the Act compels us to do so. Here again, certain English authorities have been cited to us where not merely two, but even three, authorities were held entitled to enforce their respective supervision with reference to works carried on by companies like the Electric Company before us. It is not necessary for me to refer at length to those cases here. All that I am now concerned to say is that the existence of two or even more authorities is not by itself conclusive in favour of the contention raised by the learned advocate for the respondent. In my view, various powers conferred upon public authorities are conferred for the purpose of enabling them to see that certain aspect of public health, safety, convenience, etc., are not interfered with or ignored by persons proceeding under special Acts. I think therefore that the mere existence of supervision on the part of the authorities does not by itself necessitate the view suggested by the learned advocate for the respondent.
57. For these reasons, I think that the provisions of Section 288 of the City Municipal Act are not inconsistent with either the Electricity Act, or with the provisions of the license granted to the respondent to which our attention was drawn; and it follows that the Electric Company is bound by the provisions of that section. I agree with the form of decree proposed by my learned brother.
58. Appellant's advocate's fee will be fixed at Rs. 250 in each appeal, having regard to the nature of the questions involved in these cases.