SARAT CHANDRA GUHA Vs. KALI PADA ROY

JUDGEMENT

(1.) This is an appeal on behalf of the Chairman, Barisal Municipality, who was the defendant in a suit commenced by the plaintiffs for restoration of the connexion of filtered water supply in their house, which was alleged to have been illegally cut off by the Municipality. There was also a claim for damages to the extent of Rs. 250. It appears that the plaintiff's father who was a pleader at Barisal, owned a house in the town which has been now inherited by the plaintiffs. The plaintiffs father got house connexion for supply of filtered water with the main service pipe of the Municipality some time in the year 1914 and it is not disputed that at that time a meter was set up by the Plumber under the supervision of the municipal authorities, the coat of which was paid by the plaintiffs father. It is found by the Courts below on evidence, that the meter thus setup gradually deteriorated and in 1927 it became practically useless. Notices were served upon the plaintiffs from time to time asking them to replace the meter. As the plaintiffs paid no heed to these notices, the water connexion was cut off on 17 May 1935. This suit was instituted on 6 September following, and the plain, tiffs pray for restoration of the house connexion and damages, as said already, on the allegation that the Municipality has no right to turn off water supply, on the ground of the meter being defective. Both the Courts below have decreed the plaintiffs suit in part. The prayer for restoration of the connexion of water supply has been granted, but the claim for damages has been allowed to the extent of rupees fifty only.

(2.) The Municipality has preferred this appeal, and the point taken on its behalf is that the Courts below erred in law in holding that under the provisions of the Bengal Municipal Act, the Municipality has no power to cut off house connexion when the house owner refuses to replace a meter, which has become rusty and useless in compliance with the requisitions of the Municipality. There is no appearance on behalf of the respondents in the appeal before me; but Mr. Guha who has argued the case for the appellant has placed every, thing that could be said in their favour. Now, the powers of the Municipality to cut off supply of water to premises enjoying connexion with the water works of the former, are contained in Section 309, Bengal Municipal Act, 1932. Clouse (d) of this Section empowers the Commissioners to cut off the connexion if any pipes, taps, or fittings connected with the supply of water to the premises be found on examination by an officer of the Commissioners authorized by them in their behalf, to be out of repair to such an extent as to cause so serious a waste or contamination of water that in the opinion of the Chairman immediate prevention is necessary. 0

(3.) A question was raised as to whether the present case is governed by the new Act or the old Act of 1884. As the cause of action arose in 1935 when water connexion to the plaintiff's premises was cut off, prima facie it is the new Act that is applicable. The defendant however relied upon Section 2 of the present Municipal Act, and contended that as notices to replace the meter were served upon the plaintiffs when the old Act was in force the notices were saved by Section 2 of the new Act, and the right of the parties would be governed by the old Act. Section 2 simply says that the notices given by the Commissioners under the old Act would be deemed to have been given under the new Act. If the Commissioners had really acquired any right under the old law, this may not be taken away by the new Act, unless it does so either expressly or by necessary implication. But in the present case, I think, that there is no material difference between the present Municipal Act and its predecessor, and whatever alterations have been made in the new Act on this point they are more favourable to the Commissioners than to the house owner. Section 293 of the old Municipal Act, contained the following provision: In the event of any pipes, works, or fittings connected with the supply of water to any house or land being at any time found on examination by any officer of the Commissioners authorized in that behalf to be out of repair to such an extent as to cause waste of water, the Commissioners may cause the water to be turned off from such house or land, after giving notice in writing of not less than 24 hours and may recover from the occupier of such house or land the expense incurred for turning off the water.