Kasi Paty Mukherjee vs The Chairman of the Puri Municipality

The plaintiff in this case is a well-to do gentleman who built a house seme three years ago in the town of Puri. Without the permission of the Municipality he constructed two masonry reservoirs, 2 1/2 feet by 2 3/4 feet, near his house, one to collect surplus rain water from the roof of his house and the other to receive rice water from his kitchen. The Pnri Municipality have issued a notice upon him to close these reservoirs as cesspools, and against this notice he files the present suit for a permanent injunction restraining the Municipality from carrying into effect the notice issued upon him.

The sole question for decision in the appeal is whether these reservoirs are cesspools or not. If they are cesspools the Municipality has jurisdiction to order them to be closed u/s 224 of Act III of 1884 and no snit would lie to contest the decision of the Municipality that they should be closed.

The Courts below have entered into a discussion as to what the word cesspool means. The common meaning of the word, as 1 under-stand it, is a pit into which a drain discharges its contents. The word drain means not merely a water clancel but a chanrel need for the flow of offensive matter. Before a charrel can be called a drain within the terms of the Municipal Act, it must be slown that offensive matter is carried by it and before a pit at the end of such a channel can be called a cesspool it must be shown that offensive matter is discharged into it,

The plaintiff has given definite evidence that no offensive matter is allowed to be carried into these two reservoirs, and before it can be said that the reservoirs are cesspools there must be definite evidence by the Municipality that offensive matter has been carried into the reservoirs. There is no such evidence on the record. Two Municipal servants were called to give evidence. Both say that there was no offensive matter in the reservoirs at the time of their inspection. One of them no doubt says that they gave out a bad smell, but we fail to understand how the reservoirs themselves could give out a bad smell if there was nothing offensive in them. The learned District Judge gives as his reason for holding that these reservoirs are cesspools that they were designed to collect the drainings of the kitchen and anybody who has had any experience at all of the drainings of a kitchen knows perfectly that such refuse is a nuisance and menace to public health, unless it is removed without delay or disinfectants used. This is obviously true of a kitchen in which fish or fowl is cooked. The cleaning of fish and the cleansing of fowl are matters extraordinarily offensive, and it is impossible to keep such a kitchen so clean as to prevent offensive matter being carried out with the washings of the kitchen. Bat we are not aware that in the household of a Hindu of good caste the kitchen necessarily contains offensive matter. Indeed seeing that the usual practice of the family is to eat its meals on the floor of the kitchen it seems to be reasonable to suppose that a well-to-do house-holder would be peculiarly careful to see that the kitchen floor is not full. The plaintiff has given definite evidence that nothing but rice water is allowed to run into this reservoir, Rice water is in itself not an offensive thing; no doubt if allowed to stagnate it becomes offensive in time. We are not prepared to say that a cistern for the collection of rice water from a kitchen is a cesspool, and indeed the Municipality themselves concede that a similar cistern of somewhat larger dimensions near the Jagannath Temple is riot a cesspool.

We are, therefore, of opinion that the present suit should be decreed in part, and that the decree should take this form:

That inasmuch as it has not yet been proved that the reservoirs in question were intended to be or have been used as receptacles for obnoxious matter, it cannot be said that they are cesspools within the meaning of the Act. That until definite evidence has been taken by the Municipality that they are in fact used for the collection of obnoxious matter no action u/s 224 can be taken. That the decree made will not prevent the Municipality from taking such action if in future on inspection by a person having authority it be found that obnoxious matter has been allowed to collect in these reservoirs. That the suit for a permanent injunction restraining the Municipality from interfering with these reservoirs must be dismissed. That the suit for the setting aside of the notice issued by the Municipality upon the plaintiff must be decreed. The Municipality is restrained from taking any further action upon the notice issued in this particular case.

We direct that each side pay its own costs throughout this litigation.