BHUJ BOROUGH MUNICIPALITY Vs. JOSHI KARUNASHANKER DANJI

JUDGEMENT

(1.) This appeal is by the Bhuj Municipality against which an injunction is granted restraining it from constructing Public latrines on the suit site which is admittedly a municipal property. The lower Courts have failed to go into the question whether a legal duty was cast upon the Municipality to construct public latrines. Sec. 68 of the Bombay Municipal Boroughs Act 1925 provides that it shall be the duty of every municipality to make reasonable and adequate provision for amongst other things the construction of latrines privies urinals and drains. When this is the legal duty of the Bhuj Municipality it cannot be said that all legal redress for damage resulting therefrom is precluded provided every reasonable precaution has been taken to avoid detrimental consequences. It is true that the duty cast is subject to make reasonable and adequate provision. Simply because it is the duty of the Municipality to provide for urinals it does not mean that it should provide urinals in every street. The words reasonable and adequate go with the word provision. That is why the word reasonable is used. The contention of the learned counsel that the construction of latrines on the suit site would not be reasonable does not arise because as I observed the word reasonable goes with the word provision. The law does not require that the construction should be reasonable whatever the expression reasonable construction might mean. It is not for Judges or Courts to go into the question whether reasonable provision has been made by the Municipality or not. I entirely agree with the following observations in Flemings Law of Torts Second Edition on p. 386:-

(2.) The learned counsel for the respondent has cited Talakhand v. Dhoraji Municipality A.I.R. 1955 Saurashtra 63 But that is not the case where the Legislature has cast an obligation on the Municipality to do the thing that was under discussion namely the construction of a superstructure in a public street. Therefore the observations made in that case are not applicable to the present case.

(3.) I therefore allow the appeal and dismiss the suit. Appeal allowed