SOUTH INDIAN RAILWAY COMPANY LTD THROUGH ITS AGENT AND GENERAL MANAGER, MR J F C REYNOLDS Vs. MUNICIPAL COUNCIL, MADURA THROUGH ITS COMMISSIONER, MRCOCOOREY

JUDGEMENT

(1.) Within the municipal limits of the town of Madura is a tank called the Anupannady tank over which the South Indian Railway passes. The railway was constructed in 1902 and for the purpose of taking off water which overflowed from this tank a culvert was built under the railway line. The tank on its western side is close to the Chinthamony Road. The water from the tank on this side flows over a weir which has a capacity of 500 cusecs. The culvert built by the railway company was not sufficient in itself to take off all the water flowing out of the tank and the municipality of Madura had to build four other culverts. The water carried by all these culverts flows into a channel constructed by the Government which runs parallel to the Chinthamony Road. In 1936 heavy floods were experienced in the Madura district and it became evident that the culverts, which were only six feet wide, were not large enough to deal with an exceptional flow of water. As a result of the floods in 1936 many houses in this part of Madura were inundated. The Collector raised the question of the construction of additional works and it was decided that the municipal culverts and the railway culvert should each be widened to 20 feet and that the depth should be made 5 feet. There was considerable correspondence on the subject between the Collector, the Commissioner of the Municipality and the District Engineer of the railway company. The railway company objected to pay the costs of re-building its culvert and considered that it should be borne by the municipality or the Government. A suggestion that the banks of the channel should be made higher as an alternative measure was not accepted by the Provincial Government, which on 26th November, 1938, passed an order under the provisions of Section 11(3)(b) of the Indian Railways Act, 1890, directing the railway administration to widen its culvert to 20 feet at its own cost within six months of the date of the requisition. In obedience to this order the railway administration widened the railway culvert to the required length. The municipality widened the municipal culverts to the same extent.

(2.) On the 25 July, 1942, the South Indian Railway Company, Ltd., filed a suit against the Municipal Council of Madura to recover the sum of Rs. 16,222-5-0 the alleged cost of the work which it had done in accordance with the order of the Government. It claimed that the order passed under Section 11(3)(b) of the Indian Railways Act was ultra vires because the Government could not require a work to be done which was not necessary in 1902 when the railway was constructed. If it had power at all to require the company to do the work it could, it was said, only act under Section 12, in which case the cost would be chargeable to the municipality or the Government. The company further maintained that it was in law entitled to recover the amount from the municipality by reason of the provisions of Section 70 of the Indian Contract Act. These contentions were all rejected by the Subordinate Judge. The appeal is from the decree passed by him dismissing the suit.

(3.) Sub-section (1) of Section 11 specifies the works which a railway company shall undertake and maintain for the accommodation of the owners and occupiers of lands adjoining a railway and they are contained in two Clauses (a) and (b). We are here concerned with Clause (b) which reads as follows: all necessary arches, tunnels, culverts, drains, watercourses or other passages, over or under, or by the sides of the railway, of such dimensions as will, in the opinion of the Provincial Government, be sufficient at all times to convey water as freely from or to the lands lying near or affected by the railway as before the making of the railway, or as nearly so as may be.