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(Panniyamkandi) Kelu Kutti Vs. Calicut Municipal Council - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1933Mad428
Appellant(Panniyamkandi) Kelu Kutti
RespondentCalicut Municipal Council
Excerpt:
- - 1. the facts have been clearly stated in the judgments of the lower courts......judgment):this land or water-course has been in existence for a very long time, serving as a storm water drain.2. nothing more is needed to constitute it a 'public drain' in the ordinary sense of the words. the learned advocate for the appellant points out that a 'water-course' connected with water supply vests in the municipal council under section 125(1) of the act; and argues that since this water-course has nothing to do with water-supply, it does not vest in the municipal council and the municipal council has no right to meddle with it. here again there is a fallacy. it is not every water-course that is connected with water-supply; many water-courses have no other function than to serve as drains for surplus water. this is one of such, and it is quite legitimately called a 'public.....
Judgment:

Burn, J.

1. The facts have been clearly stated in the judgments of the lower Courts. There are findings by both Courts that the plaintiff-appellant has encroached upon the limits of a water-course. The only question for discussion here is whether the watercourse is a public drain. If it is, the plaintiff has no right to obstruct it without the permission of the Municipal Council, and the chairman was within his rights in removing the obstruction: Section 142, Madras District Municipalities Act. There is no definition in the Act of a 'public drain.' It is contended for the appellant that the only drains which can be called 'public drains' are those provided and maintained by the Municipal Council under Section 137. This is fallacious. Every drain provided and maintained by the Municipal Council must of course be a public drain, but it does not follow that a drain cannot be a public drain merely because it has not been provided, and is not maintained, by the Municipal Council. There were public drains in Calicut long before the Municipal Council was created. Since there is no definition of a public drain in the Act, the words must be understood in their ordinary sense. In this case there is evidence upon which both the lower Courts have found that the site in dispute is a water-course along which in times of rain storm water is drained from the lands to the east of it and from a tank, belonging to a temple, to the south of it. As the learned Subordinate Judge says (para. 4 of his judgment):

This land or water-course has been in existence for a very long time, serving as a storm water drain.

2. Nothing more is needed to constitute it a 'public drain' in the ordinary sense of the words. The learned advocate for the appellant points out that a 'water-course' connected with water supply vests in the Municipal Council under Section 125(1) of the Act; and argues that since this water-course has nothing to do with water-supply, it does not vest in the Municipal Council and the Municipal Council has no right to meddle with it. Here again there is a fallacy. It is not every water-course that is connected with water-supply; many water-courses have no other function than to serve as drains for surplus water. This is one of such, and it is quite legitimately called a 'public drain.' This second appeal must therefore be dismissed with costs.


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