JOGENDRA NATH BANERJEE Vs. TOLLYGANJ MUNICIPALITY

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for damages against the Tollygunj Municipality. The plaintiff's case was that the Tollygunj Municipality had failed to provide and maintain a sufficient system of drainage of a large area within its control within which is the house of the plaintiff with the result that there was great inconvenience and damage to the plaintiff, in that during the rainy season there was a large accumulation of water over a large area in this Municipality and this state of things had been going on for many years and the Municipal Commissioners inspite of complaints have taken no steps to improve the drainage of the area. The plaintiff claimed damages Rs. 100. The trial Court decided the suit in favour of the plaintiff and awarded him nominal damages Rs. 10. In appeal by the Municipal Commissioners the plaintiff's suit has been dismissed. Upon hearing the learned advocate for the plaintiff there appears no doubt about the facts, namely that the plaintiff is one of the rate-payers living in a house within a certain area within Tolly gunj Municipality. The trial Court found that from 1926 onwards this area was getting under water and not only this area but certain other adjacent areas also. It is however not found that this water-logging of the area was due particularly to the defects of the surface-drain in that area. What was urged was that the Municipal Corporation had not taken adequate steps to remove the rain-water from the area. The Court of Appeal below has found that the suit as framed is wrong inasmuch as the plaintiff sued the Chairman of the Tollygunj Municipality and not the Municipal Commissioners as required by Section 15, Bengal Municipal Act. In the next place the learned Judge has found that on the merits the plaintiff cannot succeed against the Municipal Commissioners and in the last place that the suit is bad inasmuch as no notice was served on the Commissioners.

(2.) As to the first point, namely that the suit is bad inasmuch as the plaintiff sued the Chairman of the Municipal Corporation we are of opinion that it is a technical flaw and no importance should be attached to it. The Municipal Commissioners duly appeared in the trial Court and in the first Appellate Court and have also appeared in this Court.

(3.) On the main question we are of opinion that the suit does not lie-on the facts of the present case. Here the allegation is that the Municipal Commissioners neglected to provide adequate drainage, specially adequate arrangement to remove the spill water from this area. It is not for any wrongful act for which the Commissioners are sued but for a neglect of their duty. It is alleged that for years they have neglected this area and have not taken adequate steps to remove the water during the rainy season. The Court of Appeal below has found that for this omission the Bengal Municipal Act provides a sufficient remedy and in the circumstances the plaintiff can not have a remedy in the Court. Under Section 278 the Commissioners are empowered to provide and maintain a sufficient system of drainage and conservancy. If the Municipal Commissioners neglect to do their work in respect of drainage the Local Government may take over the work and have it executed by their officers and realize the costs from the Municipality. If the Municipal Board show incompetency in the performance of their duties it is open to the Local Government, to supersede the Commissioners and appoint its own officers to perform the work of the Municipality. We are satisfied that the frame of the Bengal Municipal Act is that where a certain Municipal Corporation has failed to provide adequate drainage or adequate water supply or has failed in any duty towards its rate-payers then the Local Government may direct the work to be performed or in extreme case may entirely supersede the Muuicipal Commissioners and have it worked by its own officers. It is not the scheme of the Bengal Municipal Act that a rate payer should come to the Court for nonfeasance of Municipal Commissioners. The case in Robinson V/s. Workington Corporation (1897) 1 Q.B.D. 619 has been quoted by the Court of Appeal below. In that case there was an action to recover damages for injuries sustained by the plaintiff by reason of the insufficiency of certain sewers, the property of the defendant Corporation, to carry off sewage which passed through them. The claim was founded on nonfeasance, in that the sewer was insufficient to carry off all the sewage. The trial Judge dismissed the suit on the ground that the only remedy of the plaintiff in such a case was to apply to the Local Government under Section 299, Public Health Act, 1875. In appeal it was stated: It has been laid down for many years that if a duty is imposed by statute which but for the statute would not exist and a remedy for default or breach of that duty is provided by the statute that creates the duty, that is the only remedy.