Francis W. Maclean, K.C.I.E., C.J.
1. This is a suit, in effect, to restrain the defendant, as Chairman of the Municipality at Howrah, from acting under the resolutions of the Board passed under the following circumstances.
2. The plaintiff is the owner of certain basti land within the jurisdiction of the Municipality, and the Municipality, in 1893, having ascertained that the sanitary condition of these bastis was very unsatisfactory, appointed the Officiating Sanitary Commissioner to make a report to them upon the matter, and it is clear from the 8th resolution passed at a meeting of the Commissioners held on Thursday, the 7th December 1893, that the Commissioners, in meeting assembled, were satisfied from the report of the Officiating Sanitary Commissioner, that the existing block of huts in the Bengal Babu basti, within the Howrah Municipality, was, by reason of the manner in which the huts were crowded together, attended with risk of disease to the inhabitants or to the neighbourhood, and being unanimously of that opinion, they resolved that the locality be inspected by two medical officers, namely, the Civil Surgeon of Howrah and a gentleman to be nominated by the Sanitary Commissioner, who should make a report under Section 245 of the Municipal Act, Bengal Act III of 1884. Accordingly two medical officers were appointed, and they made a report. Without going into the details of the report it is sufficient to say that the medical officers recommended that certain things should be done, and, amongst others, that a road should be made through this basti. On the 17th May 1894, that report was read at a meeting of the Municipal Commissioners, and it was duly proposed and seconded that the owners of the land on which the huts stood should be required, under the provisions of Section 246 of the Act, to carry out and execute, within four months, all the works as specified in the report. That motion was carried unanimously, and in pursuance of that motion, the plaintiff was required to execute the works in question. In my opinion, in the course which the Commissioners adopted, they have complied with the provisions of Sections 245 and 246 of the Municipal Act, Bengal Act III of 1884.
2. As a consequence of the notice which he received to carry out the works mentioned in the report, the plaintiff instituted this suit on the 25th July 1895, and, as I understand, obtained from the Munsif an ex parte injunction in effect restraining the Municipality from proceeding under their resolution. It has not transpired when, actually, in point of date, the notice to do this work was served upon the plaintiff, nor is it explained why there was so long a delay between the date of the resolution in May 1894 and the filing of the suit in July 1895. I feel some surprise, however, that the Munsif should, under the circumstances, have made an ex parte order, and greater surprise, that when the defendant applied to discharge that order, instead of listening to the application, he should have ordered it to stand over until the trial of the suit. In the absence of any explanation, that does not strike me as a proper method of procedure, nor consistent with the principles upon which injunctions in such cases ought to be granted. The practical and unsatisfactory result has been that, though the report by the medical officers described the matter as one of urgency, nothing has been done for nearly four or five years, during which period this insanitary basti has been allowed to continue in its insanitary condition. This quiescent state of matters has, doubtless, been very satisfactory to the plaintiff, who has thus escaped complying with the direction of the Municipality for some years, but I am surprised that the Municipality should have allowed the matter to linger on in this unsatisfactory manner.
3. The plaintiff's case is based upon the view that there is no necessity for the construction of the works directed, least of all the construction of the new road. That appears again and again in the plaint, and the learned Judge in the Lower Appellate Court has gone into the question of necessity, and has arrived at the conclusion that the works directed by the Municipality to be executed were not necessary. That is the basis of his decision. In this he has erred, and he ought not to have gone into the question of necessity or no necessity. The question of necessity or otherwise is left by the Legislature to the decision of the Municipality, and though, no doubt, a Civil Court can restrain a Corporation from doing anything ultra vires, the question of necessity is not to be so decided. Subject to what I will say in a moment as to the pucca privy, no question of ultra vires is suggested against the Municipality, nor is it suggested in the plaint that the provisions of Sections 245 and 246 have not been duly complied with, or that the works required are outside the terms of the report, which was admitted in the first Court. If the Municipality decide, having proceeded in accordance with the provisions of the above sections, that certain works are necessary, that conclusion, in the absence of mala fides or fraud or considerations of that nature cannot be successfully challenged and cannot be gone into in a Civil Court, otherwise every person, who is directed by a Municipal body to do certain things upon sanitary grounds, could at once institute a suit in a Civil Court, and challenge the necessity of the works directed. This is not what the Legislature contemplated, nor is it reasonable to suppose that any such course could have been contemplated. If it were otherwise, the delay in the present case supplies an apt illustration of how impracticable it would be for Municipalities to control sanitary matters within their jurisdiction. The judgment then of the Court below proceeds upon an entirely erroneous principle, and must be reversed.
4. But it has been argued that the action of the Municipality was ultra vires, because in their notice they directed the plaintiff to remove, not only the huts, but that which is spoken of as a pucca privy, and that they had no power under Section 246 of the Act to direct an owner to do that, because a pucca privy is not a hut. The Municipality did no doubt by their notice require the plaintiff to remove this privy in order that the road might be made, and they can require him to do this under Section 224 of the Act, and they did also serve the occupier under the latter section. When they served their notice on the plaintiff, although it purports to be a notice under Section 246, the Municipality clearly had a right to require him to remove the privy under Section 224. They had power then, under the Act generally, to require this privy to be removed, and I am not prepared to hold that, because they entitled their notice only under the one section, instead of the two, the whole proceeding is ultra vires. Besides, no such case is definitely raised by the pleadings. Again, the Municipality, if they be so advised, can now serve a notice on the plaintiff under Section 224, for nothing as yet has been done.
5. Upon these grounds the view taken by both the Courts below is wrong, and the appeal must be allowed, the decrees of the lower Courts reversed, and the plaintiff's suit dismissed with costs in all the Courts.
6. I am of the same opinion. The appeal arises out of a suit brought by the plaintiff respondent for a declaration that the plaintiff is entitled to the land in dispute, and that the defendant is not entitled to make a road over that land by demolishing huts and a pucca privy situated thereon, and that, if he is entitled at all to do so, he is so entitled only upon payment of compensation to the plaintiff. The allegation upon which the suit is based is shortly that the defendant, the Chairman of the Howrah Municipality, improperly issued on the plaintiff a notice under Section 246 of Bengal Act III of 1884 for the construction of a new basti road after removal of the plaintiff's pucca privy and certain tiled huts, when there was no necessity for the construction of any such new road. The defence was that the Municipality, after going through the preliminary steps required to be taken by Section 245 of Bengal Act III of 1884, issued in due form the notice under Section 246 of the Act, which is referred to in the plaint; and that as regards the pucca privy, the defendant, under the belief that it belonged to the tenants, issued a notice on them under Section 224 of the Act, for the removal thereof.
7. The parties went to trial on the three following issues:First: Whether the suit is maintainable in its present form. Second: Does the privy referred to belong to the plaintiff? And has the defendant Municipality any right to cause its removal, without the plaintiff's consent? Third: Has the defendant Municipality any right to make the road on the plaintiff's land as alleged without the plaintiff's consent, and without giving any reasonable compensation for the same, under the circumstances of the case?
8. The first Court found for the plaintiff upon all these issues, and it was of opinion that the basti road in question was not necessary to be constructed. On appeal by the defendant, the Lower Appellate Court has confirmed the first Court's judgment on the grounds on which it is based, and on the further ground that the report of the medical officers, appointed by the Municipality under Section 245 of Bengal Act III of 1884, was inadmissible in evidence without strict proof thereof.
9. On second appeal it is contended for the Municipality: First, that the Courts below are wrong in holding that it was open to the Civil Court to determine, whether the road in question was necessary or not; and, secondly, that the Lower Appellate Court is wrong in holding that the report of the medical officers appointed by the Municipality was not admissible in evidence, because it was not proved, when no question was raised as to the fact of such a report having been made.
10. On the other hand it is contended by the learned Vakil for the respondent that the Courts below were right in holding that they had jurisdiction to go into the question of the necessity of the road, and that the Municipality, so far as it required the plaintiff to remove the pucca privy, under Sections 245 and 246 of the Bengal Municipal Act, has acted beyond the limits of its statutory power, the only power given by those sections being a power of directing the removal of huts.
11. The first question raised by the learned Vakil for the defendant appellant is a very important question. There can be no doubt that the Civil Courts have jurisdiction to try the question whether the Municipality had been acting within the limits of its statutory power. It is conceded, and very properly conceded, by the learned Vakil for the appellant that is so. But then it does not follow that the Civil Courts have jurisdiction to try the question whether the Municipality, when it was acting within the limits of its statutory power, was right in its judgment that a certain road should be opened.
12. The law authorising the Municipality to act in this matter is contained in Sections 245 and 246 of Bengal Act III of 1884. Section 245 provides that 'whenever the Commissioners at a meeting are satisfied--' I am quoting only so much of the section as is applicable to this case--by report of competent persons, that any existing block of huts within the Municipality is, by reason of the manner in which the huts are constructed or crowded together, attended with risk of disease to the inhabitants, or the neighbourhood, they may cause the locality to be inspected by two medical officers, who shall make a report in writing on the sanitary condition of the said block of huts, and shall specify, if necessary, in the said report, the huts which should be removed and the roads which should be constructed, with a view to the removal of the said risk of disease;' and then Section 246 provides that on receipt of the said report the Commissioners may serve the owner of the land with a notice requiring him to effect the improvements considered to be necessary, and if such notice is not complied with, the Commissioners may themselves execute the works.
13. In the plaint the plaintiff does not say that the necessary preliminaries have not been complied with. What the plaintiff urges in his plaint is, that there was no necessity for the construction of the new road. And he further urges that the Municipal Commissioners had no power to direct the removal of the pucca privy. The Courts below have in their judgment said that the report of the Sanitary Commissioner, and that of the two medical officers, upon which the Municipality took action in the present case, were not sufficient to justify any action being taken.
14. I do not think that this view is correct. Beading the portions of the report of the Sanitary Commissioner, which are given in the judgment of the first Court, I find that the requirements of Section 245 are fully satisfied. What the Courts below have said in effect is, that although the Commissioners say that they were satisfied upon the report that there existed a block of huts within the Municipality which, by reason of the manner in which the huts were constructed or crowded together, was attended with risk of disease to the inhabitants, they ought not to have been so satisfied if they had exercised their judgment properly. But the law makes them the judges upon the point. So long as they had the materials before them it was for them, and them alone, to say whether, upon those materials they were satisfied that there was risk of the kind the section contemplates. So again, upon the report of the two medical officers appointed by them being submitted, if there was such a report, it was for the Commissioners, and for them alone, to say whether there was any necessity for constructing the road such as they directed the plaintiff in the present case to construct.
15. The view I take is not only consonant with reason and common sense, but is also supported by authority. I may refer to the observations of Lord Cranworth in Stockton and Darlington Railway Co. v. Brown (1860) 9 H.L.C. 246, and the judgment of Sir George Jessel in Wilkinson v. Hull Railway and Dock Co. (1882) L.R., 20 Ch. D., 323 (329).
16. I now come to the consideration of the second question raised in this appeal, namely, whether the Lower Appellate Court was right in holding that the report of the medical officers appointed by the Municipality was inadmissible in evidence. The report was put in, it was admitted, by the first Court, and no objection is taken in the plaint to the fact of any such report having been made. That being so, I do not think it was open to the Lower Appellate Court to throw out the report on the simple ground that it had not been strictly proved.
17. The learned Vakil for the appellant further contended that the certified copy of the report, which was put in this case, was admissible under Section 74, Sub-section (1), Clause (ii) of the Evidence Act. The question, whether it was so admissible or not, is not altogether free from difficulty, but in the view I take it becomes unnecessary to determine that question.
18. It remains only to consider the question with reference to the pucca privy. Upon this point I have nothing to add to what has been said by the learned Chief Justice except this, that if a notice under Section 224 of Bengal Act III of 1884, under which the Commissioners had full power to direct the removal of the privy, had required any preliminaries other than those that are necessary to be complied with before the issue of a notice under Section 246, then the absence of compliance with such preliminaries might have stood in the way of our accepting the present notice under Section 246 as sufficient; but as that s not the case, I do not think that we ought to consider the present notice as insufficient or invalid.