Munnan v. Municipal Board — 1963 DIGILAW 213 (ALL)

JUDGMENT S.N. Katju, J. - This is a plaintiffs' appeal arising out of a suit for injunction restraining the respondent Municipal Board Chandausi from interfering with their rights of collecting and disposing of night soil and rubbish from private houses in the city of Chandausi as their property. The suit was brought in a representative capacity on behalf of the sweepers of Chandausi. It was resisted by the respondent Board which contended that the appellants were only entitled to collect rubbish and night soil from private houses and they are not the owners thereof which was the property of the Board under Sec, 116 of the Municipalities Act and the appellants had no right in it. It was further contended that under the bye-laws and rules framed by the Board under Secs. 273 and 298 of the Municipalities Act the sweepers were bound to deposit the rubbish and night soil at the places appointed by the respondent. The trial court held that the appellants were not the owners of the night soil and the rubbish collected by them and they had to observe the bye-laws and the rules framed by the respondent and they were not entitled to the relief claimed by them. On appeal the court below affirmed the findings of the trial court. The plaintiffs have now come in second appeal to this Court. It was contended that the property in the night soil belonged to the appellants and they had a right to carry and dump it outside the Municipal limits and that the act of the Board, in preventing the appellants from disposing of the night soil outside the limits of the Board was an infringement of the fundamental rights of the appellants guaranteed under Article 19(f) of the Constitution of India. 2. The first question for consideration is whether the rubbish and night soil collected by the appellants from the private houses of citizens residing within the Municipal limits of Chandausi became the property of the appellants. It was conceded by the respondent that the appellants had a customary right to collect the rubbish and night soil from private houses for which they were duly paid by the occupiers of the said houses. The appellants did not lead any evidence to establish their case that they were the owners of the rubbish and night soil so collected by them. The appellants did not lead any evidence to establish their case that they were the owners of the rubbish and night soil so collected by them. The only witness P.W. 1 Shiama who was produced in evidence on behalf of the appellants did not say anything about the ownership, of the sweepers of the night soil removed by them. The respondent filed an agreement, Ext. A-1 dated 22-3-1931 by which the respondent has been declared to be the owner of the night soil and the rubbish collected by the sweepers. The court below, upon a consideration of the evidence on the record, came to the conclusion that the appellants had not established their right as owner of the night soil and rubbish collected by them. The aforesaid finding is the finding of fact and cannot be challenged in second appeal. It was contended on behalf of the learned counsel that the property in the night soil and the rubbish vested either in the respondent under Sec. 116(d) of the Municipalities Act or in the persons from whose houses it was removed by the appellants whose only duty was to collect the rubbish and the night soil and deposit it at the places fixed for such purpose. Learned counsel for the appellants strenuously contended that section 116 of the U.P. Municipalities Act did not vest the respondent Board with the ownership of the rubbish and night soil collected by the sweepers. It was stressed that Cl. (d) referred inter alia to filth or rubbish of any kind collect ed by the Board from privies or deposited in places appointed by the Board under Sec. 273. It was argued that Lite night soil and rubbish collected by the appellants from privies of the citizens of Chandausi could not be said to have been collected by the respondent and therefore the ownership in such filth or rubbish did not vest in the Board. As has been stated above the question of the ownership of the filth or rubbish in the present case has to be determined on proof by the appellants themselves with regard to such right. It is not open to them to say that if it does not vest in the Board therefore it must vest with the appellants themselves. As has been stated above the question of the ownership of the filth or rubbish in the present case has to be determined on proof by the appellants themselves with regard to such right. It is not open to them to say that if it does not vest in the Board therefore it must vest with the appellants themselves. The Board has got powers as provided for in its bye-laws to direct the deposit of the filth and rubbish at the places so fixed by it. The appellants have no statutory right to take the filth or rubbish to a place outside the limits of the Municipal Board as claimed by them. The movement of the filth and rubbish within the Municipal area is regulated by the be and the appellants have to conform to the aforesaid regulations. In the present case it was fully established that under the bye-laws framed by the respondent the filth and rubbish had to be deposited at the places fixed by the respondent. The appellants could not claim the right to carry night soil and rubbish to any other place either within the Municipal limits or beyond it except to the places so fixed by the respondent. Once the night soil and rubbish is deposited at a place appointed by the Board under Sec. 273 then the provisions of Sec. 116(d) are at-once attracted and it would follow that the property in such night ,soil and rubbish would vest in the respondent-Board. The question about the ownership of the night soil and rubbish came in for consideration in Banarsi v. State, Cr. Rev. No. 1604 of 1963 decided on 19.9.1963 decided by Mr. Justice Roy. In the aforesaid case one of the questions considered was whether under the customary brit Jajmani rights the appellants were entitled to remove the night soil and rubbish and were the owners thereof and the Municipality could not prevent them from doing so. It was further contended in the aforesaid case that the Board has no power to frame the bye-law which was impugned in the aforesaid case. Mr. It was further contended in the aforesaid case that the Board has no power to frame the bye-law which was impugned in the aforesaid case. Mr. Justice Roy observed as follows :- "Sec. 273 of the U.P. Municipalities Act lays down that the Board may provide receptacles and places for the temporary deposit of offensive matter and rubbish, appoint places for the disposal of night soil, carcasses and other offensive matters and rubbish, and by public notice issue directions as to the time, manner and conditions and subject to which any offensive matter or rubbish may be removed along a street, deposited or otherwise disposed of. Sec. 298 List I-D of the U.P. Municipalities Act says that a Board may make bye-laws consistent with the Act for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the Municipality and for the furtherance of Municipal administration under the Act; and may prescribe the times and places at which receptacles of filth, rubbish or other offensive matter shall be in readiness for the removal of the contents by the Municipal scavenging agency; and making provision for any other matter relating to house scavenging. It was under these provisions that the bye-law in question is said to have been made by the Municipality and has received the assent of Government. The bye-law in question appears to me to be a perfectly valid bye-law framed within the powers vested in the Board. It is not a case where it may be said that the customary right of the sweepers to serve their clients or Jijmans has been infringed. It is a case where their right to collect the night soil and the rubbish is not brought into question. It is a case where their right to dispose of the night soil and the rubbish in defiance of the bye-law framed by the Municipal Board has been complained of. The property in the night soil and in the rubbish so collected would vest in the Municipal Board. It is a case where their right to dispose of the night soil and the rubbish in defiance of the bye-law framed by the Municipal Board has been complained of. The property in the night soil and in the rubbish so collected would vest in the Municipal Board. This is expressly laid down in Sec. 116 (d) of the U.P. Municipalities Act of 1916, and it had received judicial recognition in a case decided by this Court in Hori Lal v. Emperor, 21 A.L.J. 149 where it was made absolutely clear that a customary sweeper is entitled to collect rubbish and night soil from private houses, but he must deposit it in a place fixed by the Municipal Board; that the rubbish and the night soil are the property of the Municipality; and that the Sweeper is not entitled to do with it as he pleases." 3. In the present case it was also contended that the bye-laws framed by the respondent were ultra vires in view of the fundamental rights alleged to have been guaranteed to the appellants. The relevant bye-laws in question framed by the respondent-Board are as follows :- "1. The customary sweepers shall deposit the night soil at the places appointed by the Board within municipal limits and no other else. 3. No customary sweepers or any other person shall deposit any night-soil at any other place except the places mentioned above in (2). (4) (a) No one shall store, load or carry the night soil on donkeys, buffaloes or any other vehicles within the limits of the Municipality. (b) The Municipality shall remove all the so deposited night soil which will be its property, through its own agency to trenching ground or any other places approved by the medical officer of health and fixed by the board for its proper disposal. On the trenching ground, the municipality shall keep it in pits or in trenches. 4. The aforesaid bye-laws were framed under Sec. 298 of the U.P. Municipalities Act. There is a clear provision in the aforesaid bye-laws that the night soil shall be deposited at the places appointed by the Board within the municipal limits and nowhere else. It further prohibits the storing or carrying of the night soil on donkeys, buffaloes or any other vehicles within the limits of the Municipality. There is a clear provision in the aforesaid bye-laws that the night soil shall be deposited at the places appointed by the Board within the municipal limits and nowhere else. It further prohibits the storing or carrying of the night soil on donkeys, buffaloes or any other vehicles within the limits of the Municipality. It further says that the night soil shall be property of the Board. The validity of the bye-laws are assailed on the ground that it infringes the fundamental rights of the appellants to own the night soil and to carry it outside the limits of the Municipality of Chandausi. The respondent-Board is charged with the duty of providing for the sanitation and safeguarding health of the people within the municipal limits. The aforesaid Sec. 298 empowers the Board to frame bye-laws for purposes of promoting or maintaining the health. safety and convenience of the inhabitants of the Municipality. Sec. 273 of the Act empowers the Board to provide for receptacles and places for the temporary deposit of the offensive matter and rubbish and appoint places for the disposal of the night soil. It could not be said that the aforesaid bye-laws are inconsistently with the powers of the Board and have not been validly framed. The only ground on which they are challenged is that they interfered with the appellant's right to do as they please with the night soil removed by the appellants from the houses of the residents of Chandausi. As has been stated above the appellants have not established at all that they have any such right as claimed by them. In Banarsi v. State Mr. Justice Roy considered the validity of the bye-laws which were impugned in the aforesaid case and came to the conclusion that the bye-laws had been validly framed. The bye-laws in the case in appeal do not substantially differ from the bye-laws in the aforesaid case. Furthermore Mr. Justice Roy held that there was no infringement of the rights guaranteed to the appellants under Article 19 (1) (f) of the Constitution of India. The bye-laws in the case in appeal do not substantially differ from the bye-laws in the aforesaid case. Furthermore Mr. Justice Roy held that there was no infringement of the rights guaranteed to the appellants under Article 19 (1) (f) of the Constitution of India. He observed as follows :- "In the present case the sweepers who performed the function of cleansing the laterines and removing the night soil and rubbish from the houses within the limits of the Municipality and who were required to collect the same in the receptacles provided for by the Board at the fixed places settled by the Board, could not be said to have acquired any proprietary right in such property which under Article 19 (1) of the Constitution has been violated." 5. Learned counsel for the appellants referred to Ghissu v. Hashim Ali, AIR 1954 Allahabad 683 = 1954 A.L.J. 295 and Ram Nath v. Nanak Chand, AIR 1932 Allahabad 686 = 1932 A.L.J. 821. The aforesaid decisions do not touch the question in appeal before me. I, therefore, see no reason to interfere with the decision arrived at by the court below. The appeal is dismissed with costs. Leave for appeal is refused.