GOVERNOR-GENERAL IN COUNCIL Vs. MUNICIPAL COUNCIL

JUDGEMENT

(1.) IN this appeal, which is brought from a judgment of the High Court of Judicature at Madras affirming a judgment of the principal Subordinate Judge at Madura, two main questions arise for consideration. The first, which turns upon the true meaning and effect of certain sections of the INdian Railways Act (IX of 1890) is whether in the circumstances of the case and upon a true construction of that Act and particularly of the proviso contained in Section 11 (3) (b) thereof the Provincial Government of Madras had power to issue a requisition to the South INdian Railway Company, which will be referred to as "the Railway", to enlarge at its own cost one of its culverts from a water way of 6 feet to one of 20 feet as a further or additional accommodation work for the use (as the appellant alleges) of the respondent, the Municipal Council of Madura. The second question, which only arises if the Provincial Government had no such power, is whether the Railway is under and by virtue of the provisions of Section 70 of the INdian Contract Act (IX of 1872) entitled to recover from the respondent the cost of such enlargement.

(2.) THE original plaintiff in the suit was the railway, but by an order made on August 31, 1944, while the appeal was pending in the High Court the Grovernor-General in Council was substituted as the appellant. THE respondent is a statutory body governed by the provisions of the Madras District Municipalities Act (Madras Act V of 1920) and under that Act (by Section 61) all public streets, sewers, drains, drainage works, tunnels and culverts within the municipal limits and (by Section 125) all public water courses as therein denned are vested in the respondent. By Section 137 it is required to provide and maintain a sufficient system of public drains and by Section 162 to maintain and repair public streets and bridges.

(3.) BUT in November, 1936, when the river Vagai, with which the channel is connected, was in heavy flood, the channel and the railway culvert were unable to discharge the surplus water as it came down, the surrounding lands were flooded and some damage was caused to roads and huts. Accordingly the respondent made representations to the Collector of Madura referring (inter alia) to the insufficiency of the channel and culvert in question in this case and staling that, unless sufficient protective works were carried out by the public works department, flood damage within the town could not be prevented.