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Chandra Sekhar Mukherjee Vs. Corporation of Calcutta and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1940Cal67
AppellantChandra Sekhar Mukherjee
RespondentCorporation of Calcutta and ors.
Cases ReferredCorporation of Calcutta v. Bejoy Kumar Addy
- b.k. mukherjea, j.1. the facts giving rise to this appeal may be shortly stated as follows: the plaintiff is a lessee in possession of premises no. 51, bondel road, situated in the ballygunj quarter of the town. he carries on the business of an hotel keeper and maintains an eating house in one part of the premises, while he resides with his family in the other part. opposite this building and on the other side of the road is a tank belonging to defendants 1, 2 and 3 which constitutes premises no. 62, bondel road. the owners of the tank approached the calcutta corporation with a proposal for haying this tank filled up with street refuse by the method known as controlled dumping and to this, the latter agreed on condition of the owners' paying a sum of rs. 1215 as costs. the corporation.....

B.K. Mukherjea, J.

1. The facts giving rise to this appeal may be shortly stated as follows: The plaintiff is a lessee in possession of premises No. 51, Bondel Road, situated in the Ballygunj quarter of the town. He carries on the business of an hotel keeper and maintains an eating house in one part of the premises, while he resides with his family in the other part. Opposite this building and on the other side of the road is a tank belonging to defendants 1, 2 and 3 which constitutes premises No. 62, Bondel Road. The owners of the tank approached the Calcutta Corporation with a proposal for haying this tank filled up with street refuse by the method known as controlled dumping and to this, the latter agreed on condition of the owners' paying a sum of Rs. 1215 as costs. The Corporation commenced its work of filling up the tank on 19th February 1936, and after the work was continued for two days only, the plaintiff started this suit on 21st February praying for a permanent injunction restraining the defendants from carrying on the work, on the ground that it amounted to a nuisance. There was also a prayer for a temporary injunction pending the hearing of the suit which was granted by the trial Judge.

2. Defendant 1 did not appear or contest the suit, but it was resisted by the other defendants including the Calcutta Corporation, which was made defendant 4 in the suit. A large number of defences were raised, many of which are not material for our present purposes. It was contended inter alia that the plaint did not disclose any cause of action and the suit was barred under Section 539, Calcutta Municipal Act. It was said that no nuisance was caused either to the plaintiff or to anybody else by the method of controlled dumping which was used by the Corporation in filling up the tank, and that the dumping operations were carried on in perfect good faith with due care and caution under proper supervision. It was also alleged that as a better and more efficacious remedy was obtainable by the plaintiff under Section 535, Calcutta Municipal Act, no injunction could be given by the Court under Section 56(i), Specific Relief Act. The trial Court overruled all these defences and gave the plaintiff a decree. It held inter alia that the tank at 62 Bondel Road was not a proper or convenient situation for dumping, and that there was negligence, and absence of due care and caution on the part of the Corporation authorities in carrying on its operations. It was held further that no proper sanction of the Corporation was taken as is contemplated by Proviso 1 to Section 371(1), Calcutta Municipal Act, and as the act of the Corporation amounted to a nuisance in law, the plaintiff was entitled to the injunction prayed for.

3. Against this decision an appeal was taken to the lower Appellate Court by the Calcutta Corporation and the Additional District Judge, 24-Parganas, who heard the appeal, reversed the judgment of the trial Court and dismissed the plaintiff's suit. It is against this decree of dismissal passed by the lower Appellate Court that the present second appeal has been filed by the plaintiff. Mr. Gupta who appears on behalf of the plaintiff-appellant has assailed the propriety of the decision of the lower Appellate Court substantially on three grounds : He has argued in the first place that the present case does not come within Section 371, Calcutta Municipal. Act, and consequently the act of the Corporation in dumping refuse upon the tank at 62 Bondel Road, is a wholly unauthorized act which is not warranted by the provisions of the Calcutta Municipal Act. His second point is that even if Section 371 is applicable, the action of the Corporation is illegal as there was no sanction obtained as is laid down in Proviso 1 to Section 371(1). His last contention is that on the facts admitted and found the Corporation has made an improper selection of the place for disposal of rubbish; and the work of filling up the tank was also done in a careless and negligent manner, without any attempt to minimize the nuisance, as is required by law.

4. Mr. Bose who appears for the Corporation has besides supporting the grounds upon which the lower Appellate Court based its decision, has invited us to uphold the decree on the ground that the plaintiff was not entitled to any injunction in this case under Section 56(i), Specific Relief Act., there being another and a quite adequate remedy open to him. Now it is undoubtedly one of the statutory duties imposed by law upon the Calcutta Corporation to make proper arrangements for deposit and disposal of all refuse, filthy matters and dead bodies of animals which would otherwise injure the health and comfort of the rate payers. Section 371(1), Calcutta Municipal Act, provides that the Corporation shall provide or appoint in proper and convenient situations public receptacles, depots and places for the temporary deposit or final disposal of rubbish, offensive matter sewage and the carcasses of dead animals' accumulating in Calcutta.

5. Mr. Gupta's contention is that this Section does not empower the Corporation to deposit or dispose of refuse matters on any place which belongs to a private owner, as has been attempted to be done in the present case. His point is that the word 'public' which occurs before 'receptacles' in Section 371, Calcutta Municipal Act, qualifies the expressions 'depots' and 'places' as well, and unless the place is a public place, Section 371 has got no application. This interpretation, he says, is fortified by the provision of Sub-section (3) of Section 371 which lays down that all things deposited in receptacles, depots or places provided or appointed under the Section shall be the property of the Corporation.

6. Mr. Gupta argues that if the refuse matters are dumped finally on private property they can't remain the property of the Corporation and this implies that the dumping ground must be the property of the Corporation itself. This argument does not appear to me to be at all convincing. In the first place, public land, cannot be synonymous with land belonging to the Corporation; for the latter as a juristic person owns lands and properties, which are not public properties in any sense of the expression. In the second place, even if it is taken in that sense, it cannot be seriously argued that the Corporation cannot deposit its rubbish on any place except what is owned by the Corporation itself. To throw one's refuse on the land of another is to commit an act of trespass, and neither the Corporation nor any private owner has the right to do it. This general law has not been touched in any way by the provision of Section 371, Calcutta Municipal Act. It presupposes that the Corporation does not commit trespass in disposing of its rubbish under the powers exercisable under the Section. But from that it does not follow that the place of dumping must be the property of the Corporation itself. The Corporation may hold the land in some other inferior right, or it might dump the refuse on any private land with the consent of its owner, whose lease and license would legalize what otherwise would be an act of trespass. In my opinion, Section 371, Calcutta Municipal Act, does not purport to say anything as to whom the place of depositing or disposing of the rubbish should belong, nor does it authorize the Corporation to do any act which would amount to trespass under ordinary law. The word 'public' occurring before 'receptacle' in Section 371 only means that the receptacle must be one which can be availed of or used by the public in general It is in that sense that the word 'public' has been used. The depots or places need not necessarily be public in this sense. So far as depots are concerned, there is no specific provision in the Act that they should be open to the public. Places of temporary deposit may be both private and public as indicated in Section 372 of the Act, but as regards final disposal of refuse matters, the thing is entirely under the control of the Corporation officers as laid down in Section 374 and the public have absolutely nothing to do with it. I do not think that Sub-section (3) of Section 371 assists the contention of Mr. Gupta in the least. That sub-section makes it clear that once the refuse matters are deposited they become the property of the Corporation and no private owner can lay claim to them afterwards even if they consisted of the sweepings of his own house.

7.Mr. Bose has rightly pointed out that the word used in this sub-section is 'deposited' and not 'disposed of' and the Corporation cannot remain owner of the street refuse after they are finally disposed of in one or other of the ways which it might employ for this purpose. Mr. Gupta has further argued that Section 371, Calcutta Municipal Act, even if it could grant immunity to the Corporation could not protect the acts of private individuals, and as defendants 1 to 3 virtually invited the Corporation to dump refuse on their land they cannot escape liability for nuisance, if any, that they were instrumental in causing. The act however is the act of the Corporation, and if the act is privileged as coming within the protection afforded by Section 371, the other defendants by consenting to the act, cannot be made liable in law. The first ground put forward by Mr. Gupta must therefore fail. The next point raised relates to the question of sanction under proviso 1 to Section 371(1), Calcutta Municipal Act. The proviso runs as follows:

The said things shall not be finally disposed of in any place or manner in which the same have not heretofore been so disposed of without the sanction of the Corporation, or in any place or manner which the Local Government may disallow.

8. It is admitted that refuse had never been dumped upon this place at any time before this, and consequently it is necessary that the sanction of the Corporation should be first obtained before the dumping operations are commenced. Under Section 12(1), Calcutta Municipal Act, the Corporation may, by special resolution passed at a special meeting, delegate to the Executive Officer any of the powers, duties and functions of the Corporation under the Act. It is not disputed that by a special resolution dated 25th June 1924, the Corporation delegated to the Chief Executive Officer full authority to exercise powers under Section 371, Calcutta Municipal Act. If the scheme therefore had the sanction of the Chief Executive Officer, the condition of the proviso must be deemed to have been fulfilled. It appears from the records of this case, that the proposal for filling up the tank with rubbish was first made by defendants 1 to 3 who wrote a letter to that effect to the Chief Engineer of the Calcutta Corporation. The Chief Engineer replied to that letter, accepting the proposal on condition that the owners deposited into the Corporation Treasury a sum of Rs. 1215 only as the price of refuse. Soon after that protests were made by certain local people who objected to the place being used as a dumping site, and a formal complaint was made before the Health Officer of the Corporation by a body of persons known as Ballygunj Bate Payers' Association, The Chief Engineer then sent up a report to the Chief 'Executive Officer, stating all these facts about the proposal of filling up the tank by the method of controlled dumping, and the objections raised as regards that by the local people. The Chief Executive Officer put down a note upon the report which has been marked Ex. (a) and he advised the Chief Engineer to reply to the complainants by saying that the method of controlled dumping was not injurious, and that every precaution would be taken to obviate a nuisance. In pursuance of this note a letter was actually written by the Chief Engineer which is dated 11th February 1936, and about eight days afterwards the work was commenced. It is clear therefore that no formal sanction was given by the Chief Executive Officer in this case, and it is somewhat doubtful whether the matter would at all have been brought to the notice of the Chief Executive Officer had not there been this protest by the local people. But at the same time I cannot say that the Chief Executive Officer did not apply his mind to the selection of the site as a convenient place for disposal of rubbish and his note might certainly be taken as an implied sanction or approval of the scheme. The defect so far as the sanction is concerned, is in form not in substance; and no Court would on that ground alone stay the hands of the Corporation. I might observe however that it is eminently desirable that sanction is taken in clear and express terms in cases like this which affect the health and comfort of a large body of rate payers.

9. The point for our consideration now is as to whether the place for disposal of refuse matters as selected by the Corporation was a proper and convenient situation within the meaning of Section 371 (1), Calcutta Municipal Act, and whether the work of dumping was carried on by the Corporation in such a manner as to cause the least practicable nuisance. On both these points the findings of the trial Court were in favour of the plaintiff and against the Corporation, but these findings have been reversed in appeal by the lower Appellate Court. Mr. Gupta argues that the Court of appeal below has not properly adverted to or considered the facts found by the trial Judge and upon which the latter based his decision. It may be pointed out at the outset, that Section 371, Calcutta Municipal Act, does not merely give a permissive right to the Corporation to do certain things; it enjoins the performance of certain obligatory duties. It cannot be said therefore as was said in Metropolitan Asylum Districts v. Frederick Hill (1881) 6 A.C. 193 that as there is no element of compulsion nor an intention to interfere with private rights the powers must be exercised without creating a nuisance. As this is an obligatory duty, it must be performed, but both in the selection of the site as well as in the method of doing its work, the Corporation is bound to see that the least practicable nuisance is created. What was contemplated by the Legislature, in my opinion, is not that nuisance is inevitable whenever the Corporation has got to provide depots or places for deposit or disposal of refuse matters and the only duty of the Corporation is to see that it is minimized as far as possible. I think the intention was that the powers should be exercised, if possible, without committing any nuisance, but, if that was not possible, steps should be taken to see that the least practicable nuisance was created. The Corporation, in my opinion, has got to approach the question from this standpoint, and if after considering these matters, it comes to a particular decision as to the site for disposal of its rubbish the decision in the absence of any mala fides on its part should not be interfered with by Civil Courts. In this case it appears, that there were difficulties experienced by the Corporation from some time past regarding the disposal of the refuse in District (IV) of the town the Mudiali clumping ground having been closed. The Corporation attempted to get rid of this refuse, partially, by using them in filling up some of the insanitary tanks in this district, by the method of controlled dumping, and the results were reported to be satisfactory. Under these circumstances, as the tank at 62 Bondel Road has been found to be an insanitary tank, and it is not in a thickly populated residential quarter, the decision of the Corporation cannot, in my opinion, be said to be mala fide. It is true that the owners had to pay a certain sum of money but that is only a nominal amount having regard to the actual costs of filling up as estimated by the Corporation authorities. As regards the mode of doing work, the trial Court held that the Corporation did not take the precautions which are absolutely necessary in the method of controlled dumping. Thus it was held, that the tank was not dewatered completely; it was not fenced upon all sides, and the requisite layers of earth and disinfectants were not used.

10. The lower Appellate Court has reversed these findings though not completely. It found, that the dewatering was almost complete, and screens were put up on the northern side and partly on the eastern and western sides too though not at all on the south. It found also that there was evidence of some earth and disinfectants being used. The strongest thing to be said in favour of the Corporation however is that the work was stopped only two days after it was commenced and it was too early to say as to whether the Corporation did or did not follow the method in a proper and scientific way. I think no Court would be justified in granting injunction on the materials that we have got here, and in it his view of the case, the decision of the Court of Appeal below must stand. I do not know whether the Corporation authorities contemplate a renewal of the dumping operations on this identical spot. If they do so, it would be necessary for them to consider whether having regard to alteration of circumstances, if any, since this litigation began, the tank would still be a proper and convenient place for dumping their refuse on. We have been informed by the learned advocates on both sides, that the Corporation has got an incinerator now which has solved to some extent the problem of disposal of refuse in District IV of the town. The locality where the tank is situated might also have developed in the meantime, and these would be relevant matters for consideration in exercising the powers under Section 371, Calcutta Municipal Act. I also want to make it clear that if the work of the Corporation in any future operation amounts to a nuisance the dismissal of this suit would not prevent any person who is aggrieved by it from seeking his redress in a Court of law. The present suit however must stand dismissed on its own facts.

11. It remains now to consider the point that was raised by Mr. Bose in support of the decree of the lower Appellate Court, though the actual decision on this point was against him. Mr. Bose argues, that under Section 56(i), Specific Relief Act, no injunction should be granted if there is an equally efficacious remedy open to him and he points out that under Section 535, Calcutta Municipal Act, the plaintiff could have obtained an equally good relief in the present case. I do not think that I can accept this contention as sound. On a plain reading of Section 535, Calcutta Municipal Act, it seems to me that the Section was not intended to be applicable to a case where the complaint was against the Corporation itself. This Section empowers the Corporation or any private individual who resides or owns property in Calcutta, to complain to a Magistrate of the existence of any nuisance. The Magistrate after taking evidence and on making such enquiry as he thinks proper, may by written order direct the Corporation to do any of the things that are specified in the three clauses of Sub-section (2). It appears, that the orders of the Magistrate are to be executed by the Corporation. The Corporation is to recover the expenses of preventing or abating a nuisance from persons whose names are specified in the order, and it is the Corporation who has to pay to the cobmplainant such costs inclusive of compensation as the Magistrate may determine. These provisions would, in my opinion, appear to be somewhat anomalous if the complaint was that the nuisance was committed by the Corporation itself. It would mean that the costs under Clause (2) are to be recovered from the Corporation by the Corporation itself and they are to be paid then to the complainant under Clause (3). It might be said that the words 'is to take such measures as to such Magistrate may seem practicable and reasonable' in Clause (a), Sub-section (2) of the Section are wide enough to include an order even against the Corporation. But if that was the intention of the Legislature it is difficult to say why there was no provision in the Section authorizing the Magistrate to impose any penalty on the Corporation if it refuses to carry out his orders.

12. It may be pointed out that the provisions of Section 535, Calcutta Municipal Act, are to some extent analogous to the provisions of Sections 95 and 105 of the English Public Health Act of 1875 and Sections 94 and 99 of the present Act of 1936; and they also authorize the local authority or private persons to make complaints to a Justice of the Peace about the existence of a statutory nuisance. None of the Sections of the Public Health Act however provides anything about a complaint by a private person against the local authority as the creator of the nuisance. But even if it is held that Section 535 allows a proceeding against the Corporation and the Magistrate can pass a suitable order for removing or abating the nuisance, I do not think that the Civil Court is in any way prevented from granting injunction in a proper case of actual or apprehended nuisance under Section 56(i), Specific Belief Act. In order to attract the operation of Section 56(i) the alternative remedy must be certain and equally efficacious. I do not think that the redress if any provided for by Section 535, Calcutta Municipal Act, fulfils either of these conditions. It is neither effective nor certain. Here the Corporation is to execute the orders of the Magistrate against itself, and there is no powers in the Magistrate to enforce these orders by any form of sanction. Even if it be conceded that the party can proceed under Section 188, I.P.C. against the Corporation or its officers the remedy would be too uncertain and dilatory and in most cases I am sure would not prove to be a remedy at all. My conclusion therefore is that Section 5(i), Specific Belief Act, in no way bars the night of the plaintiff to have an injunction from the Civil Court in a proper case. The result is that the appeal is dismissed. I make no order as to costs.

Roxburgh, J.

13. In this case the plaintiff sued for an injunction permanently restraining the Corporation of Calcutta from, committing a nuisance by filling up a tank at No. 62, Bondel Boad, Ballygunj, with, street refuse. The plaintiff is a lessee of No. 51, Bondel Boad where he resides with his family and keeps an eating house, the-premises being just to the north of the tank in question. Defendants 1, 2 and 3 are the owners of the tank, and have agreed to pay the Corporation Bs. 1215 for the privilege of having their tank filled up with this refuse. Work was begun on the filling up of the tank on 19th February 1936, and the present suit was brought two days later; work was stopped by a temporary injunction, and has remained in suspense since-that time. It is not disputed that the arrangement for dumping the refuse was made in pursuance of a resolution of the Corporation of 3rd January 1934 to the effect that; a scheme of controlled dumping should be adopted by filling insanitary tanks in District No. IV pending arrangements for an incinerator the need having arisen owing to trouble in connexion with the old dumping ground at Mudiali. As a result arrangements were made with owners of such insanitary tanks, and they were found willing to pay money for the privilege of having their tanks used for the purpose. The trial Court granted an injunction and ordered that

the defendants are hereby perpetually restrained; from committing any nuisance or permitting the commission thereof by deposit of street refuse in the tank at premises No. 62, Bondel Road, Ballygunj.

14. The lower Appellate Court allowed the appeal, and hence the present second appeal by the plaintiff. Various points were canvassed in the Courts below but Mr. Atul Gupta, appearing for the appellant has urged before us three points only, first, that the arrangement made by the Corporation with the other defendants is not one which, is covered at all by the provisions of Section 371, Calcutta Municipal Act; secondly, that if it be held that the Section allows such an. arrangement then its terms were not complied with in that no sanction of the Corporation as required therein was given; and thirdly, that neither was a proper and convenient site chosen for the dumping, nor was the dumping carried out so as to cause the least practicable nuisance. The first point does not appear to have been taken, in its present form, at any rate, before the lower Courts. On the other two points the trial Court held in favour of the plaintiff, while the lower Appellate Court held against him. Both the learned Munsif and also the Additional District Judge visited the spot and saw the tank. The contention as regards Section 371 seems to be that the arrangement made was one of sale by the Corporation of so much rubbish to the defendants, that the Corporation took the rubbish to the spot and dumped it there, and that such an arrangement is not covered by Section 371. The terms of 8. 371 are as follows:

Section 871(1) : The corporation shall provide or appoint, in proper and convenient situations, public receptacles, depots and places for the temporary deposit or final disposal of rubbish, offensive matter, sewage and the carcasses of dead animals in Calcutta:

Provided as follows:

(i) the said things shall not be finally disposed of in any place or manner in which the same have not heretofore been so disposed of without the sanction of the Corporation, or in any place or manner which the (Provincial Government) may disallow;

(ii) the powers conferred by this Section shall be exercised in such manner as to create the least practicable nuisance.

(2) Any land that may be required in a bustee for the temporary deposit of rubbish, offensive matter, sewage or carcasses taken from land or buildings in such bustee shall be provided by the owner of the bustee.

(3) All things deposited in receptacles, depots or places provided or appointed under this Section shall be the property of the Corporation.

15. Section 374 imposes on the Corporation duty of maintaining an establishment for the removal 'of offensive matter and rubbish from receptacles, depots and places provided or appointed under Section 371,' or under any bye-law. Evidently, this must refer to places of temporary deposit only and refer to removal from such places to some place of final disposal. It would be a contradiction in terms to impose a duty on the Corporation to maintain an establishment to remove rubbish from a place of final disposal. Yet that is what Section 374 literally provides. The Act indeed nowhere in so many terms imposes any duty of actual disposal on the Corporation; this must be read into the requirement in Section 371 that places for final disposal are to be provided. It is necessary to point out these minor defects of drafting, for, reliance is placed in argument on defects of a similar character. It is contended that the tank in question is not a 'public place.' Reliance is then placed on Sub-section 3 of Section 371 which provides that rubblish deposited in the public place is the property of the Corporation, and it is urged that rubbish dumped in the tank will be the property of the owners of the land. The Act has in fact telescoped the provisions relating to final disposal of rubbish with those relating to provision of receptacles, depots and places for initial deposit, collection of rubbish, and temporary disposal. It is naturally provided (a) that such temporary places shall be public, i.e. for public use and accessible to the public, and (b) that once rubbish is deposited in such receptacles, depots or places, the rubbish is the property of the Corporation and at its disposal. Further provision on these points is made in Section 372.

16. Having collected the rubblish from such places of temporary deposit the Corporation must dispose of it finally. It seems to me that it may do so equally by burning the rubbish, or by depositing on its own land acquired for the purpose or on the land of persons willing to take it whether by purchase or on receipt of payment by the Corporation. Section 371 has no reference to the particular title or right of the Corporation on the land on which the operation of final disposal takes place. In the case of land for temporary deposit of rubbish for a bustee it is provided in Sub-section 2 that the owner of the bustee must provide it; the land will be his, but the place will nevertheless be public in so far as it is for the receipt of public rubbish. In the present case we have not even to consider what would be the position if the Corporation merely dumped the rubbish as vendors and carriers, and left it to the purchasers to make their own arrangements for disposal. The scheme of controlled dumping involves careful arrangements for actual final disposal of the rubbish, and these arrangements are to be made by and the work of disposal is to be carried out by the Corporation. The cost of this is borne by the Corporation and the charge of Rupees 1215 paid by the landowners only covers a roughly estimated amount equivalent to the value of the actual rubbish. In my opinion on any reasonable interpretation of Section 371 the arrangement for controlled dumping in sanitary tanks is fully covered by its terms: by such a plan the Corporation provides or appoints in proper and convenient situations public places for final disposal of rubbish as required by the terms of Section 371. The first point then fails.

17. As regards the second question, relating to sanction here again the drafting of Section 371 is rather odd. The Corporation is to provide places for final disposal of rubbish but is not to do so in a place and manner in -which it shall not hitherto have been done except with the sanction of the Corporation. The powers of the Corporation may by a resolution passed at a special meeting be delegated to the Chief Executive Officer under Section 12, and the latter may in turn re-delegate his functions. Presumably the intention of Section 371 was to make possible a special provision for requiring sanction in relation to selection of new sites and manner of final disposal to be given by some authority of a grade in the hierachy higher than that which might order or carry out the general provisions of the Section. It has been proved however that authority has been delegated under Section 12 to the Chief Executive Officer to exercise the powers of the Corporation under Section 371, i.e. both to provide or appoint places and also to sanction new places. The Corporation file relating to 'tank filling at No. 62, Bondel Road' has been proved and this shows that a report of the District Engineer on the proposal and on objections which had been made to it was placed before the Chief Executive Officer for his remarks and that he approved the line of the action proposed in the report. The work was therefore clearly carried out under his orders and with his sanction. On this point the trial Court has confused the question of sanction by the Chief Executive Officer himself with that of delegation of the power of sanction by him; no particular form or manner is prescribed in which sanction must be given.

18. The third question of suitability of the site is open to consideration by the Courts but we have here the finding of fact of the learned Judge who himself visited the spot. He has also found that the tank was insanitary and so was covered by the resolution of 3rd January 1934. I do not consider that there is any error of law involved in taking into consideration the question of the particular urgency of the moment in selecting the site. It is to be noted however that almost any practicable site will probably be objected to by some persons, and that the matter of selection is largely a choice of evils. The Act contemplated that the selection should be left to high authority and provides a power of veto in the Local Government. Though the Courts have power to interfere, the circumstances in which they would do so would be rare in view of these protections provided in the Act. The selection is ultimately that of the representatives of the public who can, if they choose, keep the power of selection in their own hands subject to the veto of Government. This aspect of the question has been pointed out by Chetty J. in Pethick v. Mayor of Plymouth (1894) 70 L.T. 304 in considering a case of selection of a site for a urinal and the terms of Section 39, Public Health Act, 1875, which are similar to those of Section 371, Calcutta Municipal Act. He held further that; an injunction should not be granted in the absence of evidence of bad faith or of arbitrary perverse and vexatious conduct in choosing the site : see also Suratee Bara Bazar Co. Ltd. v. Municipal Corporation of Rangoon (1928) 15 A.I.R. Rang. 87 in which similarly the question of selection of site for a urinal was under consideration. Mookerjee and Rankin JJ. in a different connexion have pointed out in Corporation of Calcutta v. Bejoy Kumar Addy : AIR1924Cal334 that it is a well settled rule that it is not the practice of the Courts to interfere with corporate bodies unless they are manifestly abusing their powers.

19. As to the manner of disposal of the rubbish I agree with the view of the learned Additional District Judge that the plaintiff's application was too premature to be a basis for the form of permanent injunction that was granted by the trial Court; and I see no reason to differ from the finding of the Judge that the plaintiff had not proved that the Corporation had acted without good faith and negligently. The learned Judge has dealt adequately with the main grounds on which the trial Court based its decision namely (i) that the tank was not properly made dry before deposit, (ii) screens were not provided on all sides, (iii) earth and disinfectant were not properly applied, (iv) that the work was not in charge of experts. Mr. Santosh Kumar Basu, appearing for the Corporation, has pressed us to give a decision as to the effect of Section 56(i), Specific Relief Act, in this case with reference to the provisions of Section 535, Calcutta Municipal Act. That is a matter which must be decided in each case with respect to the particular facts; until the Court is otherwise disposed to grant relief by way of injunction, the question whether the particular relief proposed to be granted can be obtained by some other method as laid down in Section 56(i) cannot arise for decision, and hence it does not arise in the circumstances of this case. In my opinion, however, the learned District Judge has taken an unduly restricted view of the provisions of Section 535 in holding that it contemplates; the commission of a nuisance by a private individual and a complaint of such commission of nuisance to the Magistrate by another private individual by the Corporation. The Section would certainly cover cases of nuisance not attributable to the act or neglect of any particular private individual. The definition of 'nuisance' in Section 3(47) is wide. The Section clearly gives power to the Magistrate on a complaint by a resident or owner of property to direct the Corporation itself to take such measures as to such Magistrate may seem practicable and reasonable for preventing, abating, diminishing or remedying such nuisance. I would draw attention to the provisions of Section 43, Public Health Act, 1875, under which, where a local authority has undertaken the removal of home refuse from premises (and under Section 42 it may be compelled to do so by order of the Local Government Board), it may be made subject to a penalty at the instance of an occupier for failure to carry out the duty. I agree that this appeal should be dismissed.

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