JUDGMENT
M.C. Ghose, J.
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. 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.
4. In that case it was held that the only remedy was under Section 299. In our opinion the only remedy in the present case would be under the relevant Sections of the Bengal Municipal Act quoted above. The learned advocate for the plaintiff quoted the case in Rajendra Lal Maneklal v. Surat City Municipality (1909) 33 Bom. 393. In that case the carrying capacity of a municipal ditch was greatly reduced by the gradual accumulation of silt and rubbish in its bed and the Municipal Corporation did not clean it or maintain it in proper order with the result that the water overflowed and burst into the plaintiff’s garden and caused damages. There it was held that it was an act of misfeasance on the part of the Municipality for which it was liable. It was a duty of the Municipality to maintain the particular drain in proper order and failing to take proper order of it they were held liable to damages. The same view was taken in Dolka Town Municipality v. Desibhai Kalidas Patel (1914) 1 A.I.R. Bom. 198. There the Government had made a drainage channel for the convenience of the Municipality but owing to some default in the channel the water flowed across the road into the plaintiff’s field and caused damages. It was held that the Municipal Corporation was liable inasmuch as they had not maintained the particular drainage channel in proper condition. Now, in the present case, it is not the plaintiff’s case that any particular drainage channel was not kept in proper order by the Municipality. What has happened is that in the rainy season they did not take special steps to remove the spill water during the rainy season. There was evidence given in the trial Court that in some years the Tollygunj Municipal Commissioners made an arrangement with the Municipal Corporation of Calcutta and paid them certain sums and they pumped up : and removed some of the water.
5 On the facts of the present case as the Municipality is sued for non-feasance of a duty we agree with the Court of Appeal below that the suit does not lie. The last ground taken by the Court of Appeal below is that the suit is bad inasmuch as no notice was left with the Municipal Commissioners. It has been found by both the Courts that no notice was left at the office of the Municipal Commissioners. It is urged that Section 535 of the Act is not attracted to the facts of this case for here the suit is for a non-feasance or illegal omission of the Corporation not for any act purporting to be done under this Act by the Corporation, that the words of the Section being ‘for any act purporting to be done under this Act’. These words cannot include an illegal omission. It is argued that if the words were ‘any act done under this Act’ then illegal omission might be included in it, for, by the General Clauses Act an act includes illegal omission. But inasmuch as ‘the act purporting to be done’ occur in the Section illegal omission is not attracted to it. In our opinion this argument is not correct. An illegal omission will come under it as much as any act done under the Act and the suit is bad for failure to serve notice. In the result the appeal is dismissed with costs.
Bartley, J.
6. I agree. The matter is governed by the principle laid down in Robinson v. Workington Corporation (1897) 1 Q.B.D. 619. Plaintiff, a resident, sued the Tollygunj Municipality for non-feasance in respect of their statutory duty to provide adequate drainage in a certain area of the Municipality. Under Section 281, Bengal Municipal Act, such default, resulting in danger to the health or safety of the inhabitants, the case made out here gives a right of intervention to the Local Government. That Government is empowered, in such a case, to prepare a scheme of drainage to specify the time within which that scheme must be carried out, and to have it carried out at the expense of the Municipality if the latter fails to carry it out. In other words, the statute provides a remedy for breach of a duty, which, but for the statute, would not itself exist. The only remedy therefore is the remedy provided by the statute, and no suit by an individual inhabitant of the Municipality lies. The suit also fails, I hold, by feason of the provisions of Section 535 of the Act, which lays down that no suit shall be brought for any act purporting to be done under this Act, without previous notice, and that, unless such notice be proved, the Court shall find for the defendant. Now, by the application of Section 3(2), General Clauses Act, this Proviso covers any illegal omission purporting to be done under this Act. It has been found by both Courts that no notice was served. It follows that the Court must find for the defendant, and I fail to appreciate the argument that the words “purporting to be” as used in Section 535, have the effect of narrowing, instead of extending, the cases in which a statutory notice must be given.
