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Nayan Munjari Dassi Vs. the Chairman of the Commissioners of the Howrah Municipality - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1925Cal676
AppellantNayan Munjari Dassi
RespondentThe Chairman of the Commissioners of the Howrah Municipality
Excerpt:
- .....municipality as regards the claim for costs which had been denied by the subordinate judge, the learned district judge was incompetent to pass an order dismissing the appeal and varying the order for costs. we do not think that there is anything in this contention. the ordinary rule of law is that costs follow the event. the learned subordinate judge in the course of his judgment came to a certain conclusion which chough it did not amount to decreeing the suit for the plaintiff, was to the effect that the plaintiff was being badly treated and that for that reason did not give the municipality these costs. the learned district judge definitely found against the view of the facts by the subordinate judge, he was, therefore, in our opinion, perfectly justified in ordering that the costs.....
Judgment:

1. These two appeals arise out of two suits brought by the plaintiff in respect of two proceedings of the Howrah Municipality regarding bustees one known as Seal's bustee and the other as Kunder Bagan bustee. It appears that in view of the insanitary condition of these bustees the Commissioners of the Howrah Municipality determined to take action under Section 245 of the Bengal Municipal Act. They then had the bustees inspected by the Deputy Sanitary Commissioner of Burdwan and their Health Officer, both qualified Medical Officers, who made reports in respect of these two bustees pointing out their insanitary conditions and giving a list of the roads required to be constructed and houses, trees and privies which it would be necessary to remove for that purpose. The Municipality accepted these reports and issued notices on the owners. The present appellant thereupon brought two civil suits before the Subordinate Judge of Howrah and called in question the right of the Municipality to issue such notices or to compel the plaintiff-appellant to make the roads and other improvements found necessary. The learned Subordinate Judge dismissed the suits though without costs as he considered that the effect of the proceedings would be that the defendant would get lands for the roads without paying for the same. On appeal to the Additional District Judge the suits were again dismissed. The learned Additional District Judge set aside the Subordinate Judge's order as to the costs and held that the costs should abide the result in each Court. The learned Additional District Judge found that the two so-called bustees were blocks of huts within definite boundaries within the meaning of Section 245 of the Bengal Municipal Act and so that section was applicable. He further held in reference to the objection that the reports of the Medical Officers were inadmissible as they were not examined and so the reports had not been proved, that these documents were parts of the proceeding of the Municipal body and had been sufficiently proved in accordance with Section 18 (5) of the Indian Evidence Act. He also held in reference to the allegation that the Health Officer of the Municipality was not a competent Medical Officer to make a report under Section 245 in view of the fact that he had already dealt with the case of the Municipal Health Officer that this contention was without substance. Lastly in reference to the contention that the reports had not been based on proper inspection, he pointed out that it was not for the Civil Court to decide whether the sanitary measures adopted by the Municipality in good faith were in fact the best that might have been adopted, and that the evidence produced by the plaintiff was rather in the nature of putting forward an alternative scheme of improvement and criticising the scheme which had been made by the Municipality. He therefore dismissed the appeal.

2. On the case coming up in second appeal to this Court, the main contention of the appellant is that on a strict interpretation of the expression ' blocks of huts' in Section 245 of the Bengal Municipal Act Seal's bustee and Kunder Bagan bustee do not come within the definition because within the areas which are the subjects of the two reports of Medical Officers there are certain pucca structures; for instance, we are told that within the area known as Seal's bustee there is a garden and a house known as the Circuit House of the Howrah District. It is contended that if once a pucca building exists in an area, that area cannot be subject to any proceeding under Section 245. The plans of the bustees have not been laid before us by the appellant and so we do not know how many such pucca buildings there are in these bustees. But we have the simple findings of fact of the District Judge that definite boundaries of blocks of huts are given in the Municipal resolution and it is not denied that the structures standing within these boundaries form for the most part huts. We do not think that such a narrow construction can be put on the expression 'blocks of huts' as the appellant wishes to do. It is clear from the reports which are before us that the scheme dealt only with huts, roads and privies which would need to be removed for the constructions of certain roads for the purpose of improving the sanitation of the area which contains the huts. There is nothing to show in the reports which the Municipal Commissioners have adopted and the Commissioners' resolution that they have anything to do with anything but the blocks of huts, though it may be that outside the areas within which the blocks of huts stand there may be some pucca buildings. In our view therefore the Municipality is competent to deal with collection or blocks of huts in a bustee under Section 245 even though within the area which is locally called the Seal's bustee there may be pucca buildings.

3. The next question is that the Medical Officers were not examined and their reports are inadmissible. I must confess that I do not see how this contention can be raised. The suits are brought for setting aside the notices issued in accordance with the report, the main portion of which states what huts should be removed and what lands converted into open spaces and roads. It is now contended that though the suit is really against the orders issued in accordance with that report, yet the report cannot be received in evidence. But the report contains the orders which the Municipality adopted and we must hold that for the purposes of the present suit those reports have been sufficiently proved. The other contention made before the learned Additional District Judge has not been pressed before us but it has been pressed that the Municipality cannot act under Section 245 in an arbitrary way if they deal wish an area containing masonry buildings. We have already dealt with that point earlier in this judgment. It is not denied that if there had been buildings and the Municipality did in this matter act mala fide, the whole case would have been different. But there is no ground for believing, nor is it alleged now that there is any mala fides in this matter.

4. The last point is the question of costs. It is contended that as there was no cross-objection at the time of the first appeal to the District Judge by the Municipality as regards the claim for costs which had been denied by the Subordinate Judge, the learned District Judge was incompetent to pass an order dismissing the appeal and varying the order for costs. We do not think that there is anything in this contention. The ordinary rule of law is that costs follow the event. The learned Subordinate Judge in the course of his judgment came to a certain conclusion which chough it did not amount to decreeing the suit for the plaintiff, was to the effect that the plaintiff was being badly treated and that for that reason did not give the Municipality these costs. The learned District Judge definitely found against the view of the facts by the Subordinate Judge, He was, therefore, in our opinion, perfectly justified in ordering that the costs should be according to the ordinary custom as there was no exceptional reason, in his opinion, for varying the ordinary rule that costs abide the result.

5. In view of the above findings these two appeals are dismissed with costs.


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