Judgement

Appeal (No. 55 of 1945) from a judgment and decree of a Division Bench of the High Court (July 26, 1943) delivered and passed on a special case stated by agreement between the parties under s. 90 and Ord. 36 of the Code of Civil Procedure, 1908.

The question stated in the special case was “whether the 11 Crown is bound by s. 222, sub-s. 1, and s. 265 of the City of “Bombay Municipal Act." Those sections related to certain powers conferred on the municipality in connexion with the citys water supply, and in effect gave the municipality power to carry water-mains for the purposes of water supply through, across or under any street, and into, through or under any land whatsoever in the city.

The High Court (Beaumont C.J. and Rajadhyaksha J.) held that the Crown was bound by the sections in question.

The facts and the terms of the sections appear from the judgment of the Judicial Committee.

1946. July 3, 4, 22. Tucker K.C and Bagram for the appellant.

W. W. K. Page K.C. and Jopling for the respondents.

Oct. 10. The judgment of their Lordships was .delivered by Lord BU PARCO. By a written agreement, dated March I, 1943, the parties to this appeal concurred in stating a special case for the opinion of the High Court of Bombay. The question of law for the opinion of the court was—" Whether " the Crown is bound by s. 222, sub-s. I, and s. 265 of the City 1 of Bombay Municipal Act. The High Court (Beaumont C. J. and Rajadhyaksha J.) declared that the Crown was bound by these sections, and, in accordance with the agreement between the parties, made an order as to costs in the respondents favour. The present appeal is against this decision.

The City of Bombay Municipal Act, 1888, has twenty-one chapters and 528 sections and covers, as might be expected, a wide field. Chapter X. deals with water-supply. Section 265, which is in this chapter, is as follows "The commissioner " shall have the same powers and be subject to the same 44 restrictions for carrying, renewing and repairing water-mains, " pipes and ducts within or without the city, as he has and is "subject to under the provisions hereinbefore contained for " carrying, renewing and repairing drains within the city." The terms of this section thus necessitate a reference to Chapter IX., which has for its subject " Drains and Drainage-" works," and contains s. 222, sub-s. 1, which says—"The " commissioner may carry any municipal drain through, across, " or under any street, or any place laid out as or intended for a " street, or under any cellar or vault which may be under any " street, and, after giving reasonable notice in writing to the " owner or occupier, into, through or under any land whatsoever " within the city, or, for the purpose of outfall or distribution of " sewage, without the city.”

It appears from the special case, and from the correspondence annexed thereto, that the corporation wished to lay a water-main in a road known as Antop Hill Road, for the convenience of residents in the district known as Antop Hill. The case states that " the land in the locality of Antop Hill is for the " most part private land belonging to the Government of " Bombay, and the road serving the locality, known as Antop " Hill Road, is also a private road belonging to the Government 44 and in charge of the Public Works Department." The meaning of the expression " private land belonging to the "Government" is obscure, but the correspondence suggests that the land forms a residential district in which government employees (among others) are housed, and counsel were agreed that for the purposes of this appeal it might be assumed that it had been acquired by the Crown from private owners after the passing of the Municipal Act.

In these circumstances the corporations hydraulic engineer sought to obtain permission from the Provincial Government to lay the required water-main along the Antop Hill Road. The Government was willing to consent, but only subject to four conditions, two of which