A. Alagiriswami, J.
1. The appellant is the Corporation of Madras. The plaintiffs are the owners of O.S. No. 160 and T.S. No. 5706 of an extent of 2 1/2 grounds within the Madras Corporation limits. The Corporation issued a notice to the plaintiffs under Section 190 of the City Municipal Act proposing to dig a trench with a depth of 8 feet, breadth of 3 feet and length of 75 feet for laying sewers through the land of the plaintiffs. The plaintiffs thereupon filed the suit out of which the present appeal arises for a permanent injunction restraining the Corporation from proceeding with the laying of the aforesaid sewers. The trial Court dismissed the suit. But the appellate Court took the view that it is not open to the Corporation to exercise its powers under Section 190 of the City Municipal Act without paying compensation to the persons on whose land work is proposed to be carried out and allowed the appeal and decreed the plaintiffs' suit. The second appeal is against that judgment. I am of opinion that the lower appellate Court is clearly wrong in its interpretation. The second proviso to Section 190 reads as follows:
Provided further that the Commissioner shall with the sanction of the central committee pay compensation to any person who sustains damage by the exercise of such power.
To hold that this proviso means that the Commissioner should pay compensation before he enters upon any land in which he proposes to carry out any of the works which he is empowered to carry out under Section 190 would make the power conferred by the substantive part of the section meaningless and if the intention were that any work could be carried on in any land under Section 190 only after the compensation has been paid, it might hold up the work interminably. First of all, damages will have to be ascertained and it is quite obvious that it cannot be ascertained before hand. How can anybody decide what damages would be caused by the work to be carried out under Section 190 before the work itself is carried out? Even after the compensation is decided, there may be disputes and the matter may be carried to the Chief judge of the Small Cause Court under Section 388 of the Act.. That again may take years to be disposed of It may be necessary to carry out the works permitted to be carried out under Section 190 urgently in order to safeguard the health or the convenience of the citizens and such a work cannot certainly be held up indefinitely. In any case, the second proviso to Section 190 is quite clear on this point and the claim for compensation cannot arise till the work is carried out and damage sustained. To say that the Commissioner should pay compensation even before the work has been carried out and any damage sustained is putting the cart before the horse. The interpretation placed upon the proviso by the lower appellate Court is not at all justified.
2. The second appeal is allowed and the plaintiffs' suit will stand dismissed. Parties will bear their own costs throughout.
3. No leave.