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The Municipal Council, by Its Commissioner Vs. Syed Ghulam Muhammad Sahib, Manager of Haji Muhammad Ghouse Gori Durga - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1944Mad14; (1943)2MLJ402
AppellantThe Municipal Council, by Its Commissioner
RespondentSyed Ghulam Muhammad Sahib, Manager of Haji Muhammad Ghouse Gori Durga
Cases ReferredIn Kruse v. Johnson
Excerpt:
- - no doubt the facts are similar in so far as the water company cut off the supply of water to the respondent's houses because he failed to comply with the regulations made by the company that each house should have a separate service pipe, and ridley, j. if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say 'parliament never intended to give authority to make such rate, they......from cutting off the water supply to his premises or otherwise interfering with the existing pipe connections to those premises. the learned district munsiff dismissed the suit but an appeal by the plaintiff-respondent to the subordinate judge of trichinopoly was allowed and the suit decreed. against the decree of the first appellate court, the municipal council appeals.3. the learned subordinate judge allowed the appeal for two reasons. he thought that the bye-law applied to house connections, that might be made in future and not to existing house connections, and that in any case the bye-law could not apply to house connections which already existed; and he also thought that the bye-law even if otherwise valid could not be enforced as against the respondent because it was.....
Judgment:

Happell, J.

1. The respondent who was the plaintiff in the suit out of which this appeal arises owns premises within the limits of the Trichinopoly Municipality known as the '' Summer House '' which consist of a number of tenements. The water-supply for these tenements was provided by a single pipe which was connected with the main pipe line. Under Section 306(3)(d) of the District Municipalities Act, a Municipal Council has power to make bye-laws 'for the conditions on which house connexions with the Council's water-supply mains may be made; for their alteration and repair and for their being kept in proper order.' The Council made a bye-law in 1933 under Section 306(3)(d) which came into force in January, 1934. It provided that 'every house to which water is laid on shall be provided with only one service pipe connection and controlled by a stop-cock and ferrule,' and that

No house shall be supplied with water from existing or prospective service connection of any adjoining house or premises.

2. Under this bye-law, the Council required the respondent to substitute for his single pipe line separate connections for each of the tenements and threatened, if the connections were not made within the requisite period, to stop the supply of water to the tenements. The respondent then filed the suit, O.S. No. 107 of 1939 in the Court of the District Munsiff of Trichinopoly, out of which this appeal arises for a permanent injunction restraining the Council from cutting off the water supply to his premises or otherwise interfering with the existing pipe connections to those premises. The learned District Munsiff dismissed the suit but an appeal by the plaintiff-respondent to the Subordinate Judge of Trichinopoly was allowed and the suit decreed. Against the decree of the first appellate Court, the Municipal Council appeals.

3. The learned Subordinate Judge allowed the appeal for two reasons. He thought that the bye-law applied to house connections, that might be made in future and not to existing house connections, and that in any case the bye-law could not apply to house connections which already existed; and he also thought that the bye-law even if otherwise valid could not be enforced as against the respondent because it was unreasonable. It is not disputed that if the bye-law now in question was within the bye-law making powers of the Council the water supply could be cut off in the event of a refusal on the part of a house-owner to comply with the bye-law. In my opinion the contention that the Council has no power to make a bye-law under Section 306(3)(d) which shall apply to existing house connections cannot be sustained. Section 307 of the Act provides that.

bye-laws with regard to the drainage of and supply of water to buildings and water closets, earth closets, privies, ash pits and cess-pools in connection with buildings and the keeping of water closets supplied with sufficient water for flushing may be made so as to affect buildings erected before the passing of the bye-laws or this Act.

4. It is plain that the bye-law relating to the supply of water to buildings must include the means by which the water is taken to the buildings. Earned Counsel for the respondent however argues that the bye-law as it stands refers only to future connections. He says that the words

every house to which water is laid on shall be provided with only one service pipe must be taken to refer to the future and are equivalent to every house to which water shall be laid on.

5. In support of this contention I have been referred to an English case, Bourkec v. Nutt (1894) 1 Q.B. 725. The fact that it was held in that case by the Court of Appeal that the words

where a debtor is adjudged bankrupt

appearing in Section 32(1) of the Bankruptcy Act, 1883, meant ' where the debtor is adjudged bankrupt under the Act ' so that the disqualifications attached by the Act to bankrupts would not apply to persons adjudged bankrupt before the passing of the Act cannot help the respondent. If the bye-law now in question is read as a whole, there can be no doubt that it is intended to apply not only to future connections but to be retrospective in effect. If the sentence

every house to which water is laid on shall be provided with only one service pipe connection and controlled by a stop-cock and ferrule

stood alone there might be some room for doubt. But the bye-law goes on:

Every metered connection existing or prospective shall be provided with a non-return value of approved pattern. No house shall be supplied with water from existing or prospective service connection of any adjoining house or premises.

6. It is clear therefore that the bye-law refers not only to future but to existing service connections; and for the reasons already given such a bye-law, in my opinion, is not ultra vires.

7. It is however further argued by the earned Counsel for the respondent that the Council had no right to require the respondent to make the separate connections because such a requirement is unreasonable in view of the fact that with the consent of the Council the respondent had already spent money on connecting the tenements with the main by one pipe, and the fact that it has not been suggested that there was any defect in the method of supply or any necessity to make the new connections with the main. The learned Subordinate Judge was of opinion that the contention that the bye-law requiring separate connections was unreasonable is supported by the decision in the English case of South-west Suburban Water Company v. Hardy 109 L.T. 169.The learned District Munsiff also thought that there were observations in the case which assisted the plaintiff but was doubtful whether the decision under an English statute was applicable. In my opinion no assistance can be obtained from the English case. No doubt the facts are similar in so far as the water company cut off the supply of water to the respondent's houses because he failed to comply with the regulations made by the company that each house should have a separate service pipe, and Ridley, J., did observe that, to his mind, the regulation was unreasonable. The company, however, was a private company and the ratio decidendi was not unreasonableness but the existence of a provision that if any difference arose as to the reasonableness of any of the regulations made by the water company the dispute should be referred to two justices. The dispute had not been referred and it was held that, for that reason, the cutting off the water supply was wrongful. In Kruse v. Johnson (1898) 2 Q.B. 91 Lord Russell distinguished the attitude which the Courts should adopt to bye-laws made under powers given to companies which carry on their business for their own profit, although incidentally for, the advantage of the public, and to bye-laws made, as in the present case, by bodies of a public representative character. Of bye-laws made by bodies of a public representative character he says:

If for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say ' Parliament never intended to give authority to make such rate, they. are unreasonable and ultra vires.

8. But it is in this sense, and in this sense only, as I conceive, that the question of unreasonableness can properly be regarded. What are the facts of the present case? More than 40 years ago, accepting his own statement as to the cost, the plaintiff, or rather his father, spent 1,600 rupees on connecting his various tenements with the water main. It is unreasonable that after forty years he should be required again to spend money some 2,000 rupees--in order to adapt the connections between his houses and the main to requirements which are now considered essential? It seems to me clear that, as far as the respondent is concerned, the bye-law is not unreasonable by any of the tests suggested by Lord Russell.

9. The decree of the District Munsiff dismissing the suit is, therefore, restored and the second appeal is allowed with costs throughout.

10. Leave to appeal is refused.


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