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Judgment
Abdur Rahim, J.—In this case the Taluk Board of Bandar appeals against the decree of the lower courts, by which it has been restrained
from filling up three tanks belonging to the respondent., the Zemindar of Challapalli. The Board purported to act u/s 100 of the Madras Act V of
1SS4 by which ""The Taluk Board may, by notice, require the owner of any tank or well to cleanse, fence, repair or fill it up, if, on inspection, it
appears likely to be dangerous, or prove injurious to the health of the neighbourhood. "" It appears that there were reports of the District Medical
and Sanitary Officer before the Board to the effect, that the tanks in question were injurious to the health of the villagers and the President of the
Board also inspected the tanks and; it may be taken that the Board came to the conclusion that the existence of the tanks in their present condition
was injurious to the health of the neighbourhood.
I am prepared to proceed, for the purposes of this judgment, on the assumption that there was sufficient material before the Board on which to
found the conclusion as to the present unhealthy and injurious nature of these tanks. The rulings to which we have been referred show that if there-
were materials before a local authority to come to such a conclusion it is not for the civil courts to inquire into the sufficiency, or otherwise, of those
materials. It is for the Board to decide upon the evidence whether a certain tank is dangerous or injurious to the health of the neighbourhood and
when such decision is arrived at, it is not for the court to interfere with it on the ground that the court would have come to a different conclusion.
That, I take it, is the effect of the rulings in The Municipal Commissioners for the City of Madras v. Parthasaradhh I.L.R.(1888) Mad. 341 . Duke
v. Rameswar Malia ILR (1899) Cal.811 and Patel Panachand v. Ahmedabad Municipality I.L.R(1896) . 22 Bom. 230 and to that extent, I have
nothing to say as regards the applicability of these decisions to this case. But what the respondent, the Zamindar, contends is, that the Board has
exercised its discretionary power in this case arbitrarily and unreasonably, having regard to the admitted facts and circumstances of the case. The
power conferred on the local board by Section 100 is a very wide power. The Board acting under that section may require the owner of a tank to
repair it up or fill it up at his own expense; for there is no provision in the Act for the owner being recouped the expenses incurred by him in
complying with the provisions of the Act. The Board has the power to acquire the land, if it chooses, by proceeding properly taken, in that
connection. But in that case it would have to make compensation to the owner of the land. There is however no provision for the Board making
any compensation to the owner of the property who is called upon to do certain acts u/s 100. It is suggested on behalf of the Local Board that the
owner of the tank may give up the tank to the Board if he so chooses and thus save himself the expense of filling it up; that is to say, the owner may
be compelled u/s 100 indirectly to transfer his property to the Board without any compensation whatever. That is the only way by which the owner
of a tank can save himself according to the argument from what may in some circumstances amount to considerable loss, I should say that in such
circumstances the courts will see that the taluk board does not exercise the power conferred on it by Section 100 for ulterior purposes. If the
Board uses its powers for any such purposes the civil court undoubtedly has jurisdiction to restrain the Board from abusing its powers in that
manner.
Apart from the question of the Board using its powers for any indirect purpose, it may be safely laid down on the basis of decided cases that
where a local authority is invested with discretionary powers, the court can interfere in cases where such powers are exercised, to use the language
of some of the decisions, in a ""capricious wanton and arbitrary "" manner, or to adopt the language of some other cases, in an "" unreasonable
manner. See Nagur Valab Narsi v. The Municipality of Dhanduka I.L.R.(1888) 12 Bom. 490 and Lalbhai v. The Municipal Commissioner of
Bombay . The Indian Courts in this connectionI.L.R.(1908) 33 Bom. 334 have only followed the principles established by the English authorities.
See Leader v. Moxton (1773) 2 Blackstone: 96 E.R. 546 , Rex v. Board of Education (1910) 2 K.R. 165 . Williams v. Giddy (1911) A. C. 381.
Sutton v. Clarke (1815) 128 E.R. 943 and Weinberger v. Inglis (1919) A. C. 606. So far as this court is concerned, these principles have been
adopted in Somu Pillai v. The Muncipal Council, Mayavaram I.L.R.(1905) Mad. 520 . To my mind there is no difficulty therefore, in ascertaining
the principle applicable to this class of cases.; but difficulty undoubtedly lies in applying the principle to the facts of a particular case, it is not
possible to define in an abstract way what would or would not be a reasonable and proper exercise of such a power as is conferred on the Board
by this Act. But, when we have the facts of a case before us, the difficulty would not seem to be always very formidable. On the one hand, as has
been pointed out in some cases relied on by the learned pleader for the respondent, as for example. Duke v. Rameswar Malia I.L.R.(1899) Cal.
811 where a local authority is given the power to decide a certain matter for itself it is not for the court to substitute its own judgment for the
judgment of the statutory authority. On the other hand, where it is clear that a discretionary power has been exercised in a manner which could not
have been in the contemplation of the legislature, then the court undoubtedly has jurisdiction to interfere. In this case, the Taluk Board seems to
have acted without taking into consideration some very important matters in exercising its powers u/s 100. First of all, as the deposition of the
President of the Taluk Board shows the insanitary condition of the tanks in question is caused mainly, if not entirely, by the discharge into them of
the drainage water through channels recently constructed by the Board. The District Munsif accepts this evidence and gives that as one of the
reasons for holding that the action of the Board was arbitrary and unreasonable. 4. When the Act gives power to a Taluk Board to require the
owner of an insanitary tank to fill it up the legislature could not have contemplated a case in which the insanitary condition of the tank was caused
by the action of the Board itself. In such a case it might be said that the tank itself was not injurious to the health of the neighbourhood within, the
meaning of the Act but that it was made so by the action of the local board. The Taluk Board here seems to have built drains without making any
provision for the proper disposal of the contents of these drains. If it took measures to carry the drainage water to some place other than the tanks,
the question of taking any action against the owner of the tanks under the Act would not arise. Then it is obvious that there must be cases in which
any direction to fill up the tanks would be prima facie unreasonable and oppressive, having regard to the expense and difficulty of filling'' them up.
The Taluk Board is empowered by Section 100 to do either of several things in the interests of the health and safety of the community and if it does
not take into consideration any alternative course that was open to the board to adopt and which would be more practicable and not entail obvious
hardship on the owner of the land within its jurisdiction the Board might well be said not to have exercised its powers in a reasonable manner. Here
it is quite clear, upon the facts as found by the lower courts, that by putting up an embankment round the tank, the object in view would have been
accomplished, without any particular hardship to the owner of the tanks. These tanks, according to the evidence, have been in existence for a
number of years and were at any rate, at one time, needed in the interests of the villagers. It is not suggested that the owner has clone anything by
which the tanks have become insanitary. If that had been so then the owner might well have been asked to take such steps as would be necessary
to put the tanks in a sanitary condition. The evidence shows that the expense of filling up the tanks would be considerable, at least Rs. 4,000 and
very likely much more; and, as pointed out by the respondent, he will have to dig in some other place in the village in order to fill up these tanks
with the result that other tanks will come into existence and perhaps prove as injurious to the health of the villagers as the present one. So far as it
appears, the Taluk Board seems to have acted without regard to any of these considerations and quite reckless of the consequences to the
respondent. I am also of opinion judging from the evidence of its President that the Board has laid down a sort of general rule although not reduced
to the form of a resolution or formal proceeding that wherever there is an insanitary tank within its jurisdiction it should require the owner to fill it
up. That would not be a proper exercise of the power as has been pointed out in Maxwell on Interpretation of Statutes page 208, see also Tinkler
v. Wandsworlh District Board of Works 44 E. R 989 at p. 993. The board is required by the Act to consider each case on its own merits, and if it
does not do so it would be exceeding the powers conferred on it by the Act. There is no trace on the record, of the taluk board having taken into
consideration the particular circumstances in connection with these lanks before passing the orders. On the whole I am of opinion that the Board''s
action in this case was not in proper exercise of the powers conferred on it by the Act and I would therefore dismiss the appeal with costs. The
decree of the lower appellate court however requires modification in order to give proper effect to our judgment. It should be declared that the
plaintiff is not liable to fill up the tanks as required by the defendant''s notice, dated 1st April 1915 and that the defendants be restrained in case
they themselves fill up the tanks, from recovering the cost thereof from the plaintiff.
The memorandum of objections is dismissed with costs.
Oldfield, J.
I agree with my learned brother''s conclusion and deliver a separate judgment only because the questions raised are of great and increasing
importance. For, although in particular we are dealing with the validity of an order by the appellant Board requiring plaintiff to fill up certain tanks
as insanitary, we have generally to define the limits, within which such action by a public body is subject to control by the courts, and with the
increase in the number and activities of such bodies to be anticipated in the near future disputes as to those limits may be frequent.
That the courts have power of control is not denied; and, no doubt in some directions the law is clear as to their extent, since there is no doubt
that they can be exercised if the action complained of is wholly outside the legal powers of the body concerned or is taken for an ulterior motive,
Card v. Commissioners of Sewers 49 L.T.Ch. Dn. 325. In cases however of the kind before us, in which the public body concerned proceeded
within its apparent authority and the objection is that it ought not to have done so on the facts before it, such of the decisions referred to by my
learned brother, as restrict their description of the circumstances in, which the court can interfere, to a bare reference to the unreasonable or mala
fide or arbitrary and capricious character of the action complained of, seem to me with all respect to afford very little assistance in cases similar to
the present. For it is not easier, when the conflict is between the interest of the community and that of the individual, than it is in other connections
to apply the test of what is reasonable and, as will appear, that test must be applied for the present purpose primarily to the method, by which the
merits of the case have been ascertained rather than to those merits themselves. The test by the arbitrary or capricious character of the proceedings
is inconclusive, when as in the present case, some reason for them is forthcoming and the complaint is to some extent of the public, body''s
improper adherence to principle in disregard of the particular circumstances; and, although the necessity for good faith in the procedure employed
can be insisted on, that will carry the matter very little further, until the nature and the extent of the minimum precautions to be observed have been
defined. It may be useless to look for any absolutely exhaustive rule, but it is worth while to consider whether recent decisions do not indicate any,
which will be susceptible of general statement and will suffice for the decision of the majority of cases, including the one before us.
In Rex v. Board of Education (1910) 2 K.B. 165 Farwell, L.J. without, as I understand him, departing from the effect of the language used in
earlier cases, stated the law as follows:-"" If the public body has exercised the discretion entrusted to it bona fide not influenced by extraneous or
irrelevant considerations and not arbitrarily or illegally, the courts cannot interfere. They are not a court of appeal from the public body, but they
have power to prevent...its refusal of its true jurisdiction by the adoption of extraneous considerations in arriving at its conclusion, or deciding a
point other than that brought before it, in which cases the courts have regarded it as declining jurisdiction;"" and the case will be the same, if the
rejection of relevant instead of the adoption of extraneous considerations is in question, as appears from the reference to Reg, v. St. George''s
Soothwaik (1887) 19 Q.B.D. 533 . where a vestry declined to deal with the merits of a claim, because it considered the only amount which it
thought that it could legally grant excessive. It will, as the judgments in Weinberger v. Inglis (1919)A.C. 606 show, be presumed that an associated
body, and similarly (it is not disputed) a public body, has in reaching its decision dealt fairly with the materials available to it; and'', until that
presumption is displaced, the court will not attempt inquiry into the particular ground on which the decision was'' Veached. But on the other hand
that presumption may be displaced, as it was, to give two instances only, in Rex v. Board of Education (1910) 2. B. 165 by inference that action
was taken on a wrong understanding of the law or the question in issue as in Williams v. Giddy (1911) A.C. 381 , by evidence, consisting therein
an admission of counsel, of the existence of matter, which it would have been reasonable to consider, but which was not considered at all, the
result being an award which, "" though made under guise of exercising discretion, was at best a colourable performance and tantamount to a refusal
by the public body concerned to exercise the discretion entrusted to it"". The facts in that case were extreme. But in it, as in the others, the court
interfered, because the use of a sound discretion by the public body concerned had been disproved, or more fully because that body was shown
not to have given an honest consideration to the matters which a reasonable man would have considered before he decided.
To apply this to the case before us, there is first the contention which is supported also by the reference to the wording of Section 100 of the
Act, that the defendant board did not consider the case honestly, because the members directly responsible for the order complained against did
not themselves inspect plaintiff''s tanks, but acted on the reports of their President and the District Medical and Sanitary Officer, who had done so.
in fact Section 100 merely requires an inspection and does not specify by whom it is to be made and it is sufficient answer to the general argument
that no question of fact which an inspection would have decided, is shown ever to have been raised and that an obligation to make the substantial
journeys in some cases of over fifty miles from a railway which a personal inspection would entail, cannot fairly be regarded as essential to the
performance of their duties by Taluk Board members.
It is next pointed out that the notice issued by the Board required plaintiff to abate the nuisance alleged, as constituted by his tanks in a particular
way, by filling them up, and argument has been based on the evidence of D.W. 1 the President of the Board, since on this and other points it is our
only source of information as to its procedure and reasons. He said that ""the general course adopted when the Board finds insanitary tanks is to
ask their filling up"" and ""in doing so, it never considered the question of expense""; and he admitted that in plaintiff''s case no estimate of the costs of
the work required were obtained, although it might have been as much as Rs. 4,000 for one tank alone and according to other evidence would
have been more. This, it is urged, shows that the board had adopted a genera] pre-appointed rule for dealing with this and all. similar cases without
regard to the particular circumstances of each, and, if the objection were established it would clearly be Valid, not only because some part of the
matter reasonably demanding and available for consideration never received it, but with reference to the judgment of Turner, L.J. in Tinkler v.
Wandsworth Dt. Board of Works 2 De. Gex & J. 261 disallowing the order before him on the ground that it had proceeded on the footing of a
general resolution "" come to before that order had been issued and without reference to the particular case."" But, with all deference to my learned
brother, it is necessary to distinguish between such a definite resolution as was there held to be in question and a policy, to which as in Weinberger
v. Inglis (1919) A.C. 606 and (as I think) here, the decision under consideration may be intended to give effect. Nothing resembling such a
resolution as was held proved in Tinkler v. Wandsworth Dt. Board of Works (1919) A.C. 606 is established before us, and the most to be
deduced from the evidence of the President seems to be a policy, which it is probably neither possible nor desirable to discountenance so long as
its adoption does not preclude consideration of the facts of each case, to which it is proposed to apply it.
A stronger objection and one, which I am constrained to admit, is however that in fact such consideration did not take place because the
President deposed further that "" if bunds were raised round the tanks to prevent sewage water falling into them, they would not be insanitary; "" and
it is urged that there could have been no honest or reasonably comprehensive consideration of the relevant facts, when the nature of the work to be
required and the greater burden imposed by one remedy rather than another were not considered. That the erection of bunds would have been less
expensive than the filling in of the tanks, which was actually directed is not denied, and the president has given no reason for preferring the latter. A
duty to prefer the less onerous of the remedies available was recognised in Lal Bhai v. Municipal Commissioner of Bombay ILR (1909) 33 Bom.
334 and if a mere statement of the position is not sufficient, it need only be observed that the use of a sound discretion can be no less obligatory in
respect of this part of the order before us than of the remainder. On this ground therefore that order cannot stand.
Another and more fundamental objection to it however arises in connection with the reference to sewage water as responsible for the insanitary
condition of plaintiff''s tanks, although it has been misapprehended by the Lower Appellate Court. For it is stated that the insanitary condition of the
tanks had been admitted by plaintiff, although he had denied it in his plaint and, as paragraph 9 of the District Munsif''s judgment shows, at the trial;
and, after referring to the expedient of excluding the sewage by bunds as deserving consideration, it failed to see that as the President admitted the
existing arrangements were inadequate to dispose of the sewage and that it and not the condition of the tanks was the cause of any nuisance, which
required abatement. As to these facts there is no dispute; and it follows that the Board, if it is not to be regarded as having used its powers ultra
vires, when admittedly no contingency in which it could legally use them against plaintiff had occurred, at least used them after neglecting one
essential portion of the materials for its decision. There is no question here of the courts sitting in appeal over the Board, or usurping its function as
the judge of the existence and origin of a nuisance but of the Board having passed its order on an assumption which evidently on the facts admitted
by its President was unfounded. In this respect again, that order has been shown to have been made in no fair exercise of its discretion.
These defects in the order being sufficient to justify the court''s interference with it, I concur in the decree proposed by my learned brother.