Taluk Board vs Zamindar of Chellapalli

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 Zamindar of Chellapalli. The Board purported to act u/s 100 of the Madras Act V of

1884 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 v. The Municipal Commissioners for the City, of Madras v. Parthasaradi I.L.R., (1888) Mad., 341, Duke

v. Rameswar Malia , and Patel Panachand v. Ahmedabad Municipality I.L.R(1898) ., 32 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 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 proceedings properly taken, in that connexion, 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 purpose, 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 direct 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 Nagar Valab Narsi v. The Municipality of Dhandhuka I.L.R.,(1888) 12 Bom., 490, at 494, and Lalbhai v. The Municipality

Commissioner of Bombay I.L.R., (1909) 33 Bom., 334. The Indian Courts in this connexion have only followed the principles established by the

English, authorities: see Leader v. Moxon 96 E.R., 546, Rex v. Board of Education [1910] 2 K.B., 165, Williams v. Giddy [1911] A.C., 381 ,

Sutton v. Clarke 128 E.R., 943 , Weinberger v. Inglis [1919] A.C., 606 . So far as this Court is concerned, these principles have been adopted in

Somu Pillai v. The Municipal 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 vakil for the respondent, as for example, Duke v. Rameswar Malia I.L.R.(1899) , Calc., 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 in exercising its powers u/s

100 seems to have acted without taking into consideration some very important matters. 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. 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 one 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 is 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 done 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 a form of 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. Wands worth District, Board of Works 41. E.R., 989 . 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 connexion with these tanks before passing the orders. On the whole I am of opinion that the

Board''s action in this case was not in the 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:

Gard v. Commissioners of Sewers (1883) 49 L.T., 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

fides 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 no easier, when the conflict is between the interest of the community and that of the individual than it is in other connexions,

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 then 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 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 3Education [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 tribunal (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... the

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 a

reference to Queen v. Vestry of St. George''s, Southwark (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 reached. 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 K.B., 165, by inference that action was taken on a wrong understanding of the law or the question in issue, and in Williams v.

Giddy [1911] A.C., 391 , by evidence, consisting of 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 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 a 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

journies, 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 was obtained; although it might have been as much as Rs. 4,000 for one tank alone and according to other evidence

would have bean more. This, it is urged, shows that the Board had adopted a general 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 District Board of Works (1858) 2 Deg. & 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 is 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 District Board of Works (1858) 2 Deg. & J., 261 is established before us, and

the most to be deduced from the evidence of the President seems to me 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 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 recognized in Lal Bhai v. Municipal Commissioner of Bombay I.L.R.(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 connexion with the reference to sewage water as reasonable 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.

e

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.