Sadasiva Ayyar, J.
1. The plaintiff, the South Indian Railway Company, Ltd., is the appellant before us. The suit was brought for recovery back of the total of the sums paid by the Railway Company to the Municipal Council of Trichinopoly between March 1912 and November 1914, for what are called private scavenging services performed by the Municipality for the Railway Company. I find that they are called 'scavenging fees' in the relevant notices, reports and bills (see for example Exhibit J.).
2. The Railway Company owns stations and offices at the Junction and Fort of Trichinopoly. There are several latrines and urinals in these places, and the washings and the nightsoil are collected by the railway authorities through the railway coolies into certain receptacles and a repository and into cisterns, the urinals being drained into cisterns. The Municipality owns carts and bulls, and employs drivers to drive the carts to the Municipal nightsoil depot which is situated at a distance of 5 1/2 or 6 miles from the junction station. The so-called scavenging fees recovered from the Company seem to be the hire charged for the supply of the nightsoil carts and urinal carts with bulls and drivers. Three nightsoil carts and four urinal carts seem to have been usually supplied in the year 1913, and the hire charged for the three nightsoil carts is Rs. 55 a month, and for the four urinal carts Rs. 62 a month. (See Exhibit A2.) (The requirements in previous and subsequent years have of course varied from what they were in 1913.) The second paragraph of Exhibit A2 says:
The nature of the service rendered is carting away the nightsoil and urine collected by the Railway scavengers and kept in readiness in receptacles for removal.
3. After going through the records carefully I am satisfied that the claim of the Municipality relates to the cost of transport to the Municipal depot from just outside the railway premises, and that the removal of the nightsoil and urine in the receptacles and cisterns from within the railway compounds to just outside the compounds was treated as a negligible preliminary to the main work of transport to the depot. It may be that the hired carts proceed some distance into the Railway premises to receive the offensive matter and then go out to the municipal road outside the premises and are then driven off to the Municipal depot at a distance of six miles; but the transport from inside the railway premises to just outside those premises, assuming that it is done in the municipal carts, does not seem to have been considered as a separate service chargeable by itself, any more than a cart driver charges for removing things from the verandah of a bungalow to the gate separately from the charge for conveyance to the Railway station. It is the employment of the carts, bulls and drivers in transporting the stuff to a distance of six miles which is the service which has been charged for and objected to in this case.
4. The plaintiff (Railway company) contends in paragraph 6 of the plaint that the provisions of the District Municipalities Act do not entitle the Municipal Council to charge fees for the transport of nightsoil, etc., to their rubbish depot; and also that in levying the fees in dispute from the Railway Company, the Municipality has not complied in substance and effect with any of the provisions of the District Municipalities Act. The Council in their written statement contended, among other defences which are unsustainable and which therefore need not be further noticed:
(a) The services rendered are such that the defendant council is not in any view of the law bound to do the same free of charge. These services have been rendered throughout by special agreement between the parties and the defendant council avers that it would not have rendered them but for such agreement; (b) from the year 1889, the defendant council has been doing the work of removal in and from the premises of the plaintiff Company under special agreements between the parties by which the plaintiff requested such specific services to be done in the manner and to the extent required by the plaintiff Company to suit their own convenience and by which they agreed to pay the defendant council specified sums per mensem;... (c) the defendant council submits that the above said agreements are legal and binding on the parties and are further in substantial compliance with the provisions of the District Municipalities Act;... (d) the suit is barred by limitation.
5. As regards the removal 'in the premises' as distinguished from removal from the premises of the Railway Company, I have already stated that the charge was not intended for removal 'in the permises' themselves.
6. The learned Subordinate Judge's findings and the reasons for his findings are as follows; (a): under Section 216 of the District Municipalities Act V of 1884 (as amended in 1897) the duty of making arrangements for the regular removal from the latrines and private houses of nightsoil and other offensive matter is cast on the Municipality. The clause in Section 216, 'so far as the funds at their disposal permits,' does not in any way detract from the duty of the Municipality laid down in the section, but has reference only to the extent to which the Municipality ought to make arrangements for the regular removal. The latter part of the section directs the Municipality to provide depots for the deposit of nightsoil and other offensive matter 'and also covered vehicles or vessels for the removal of the same.' The duty of providing carriers, drivers and bulls, if required for the removal of the nightsoil and offensive matter from latrines and premises is also clearly laid on the Municipality in the discharge of the duty laid down in general terms in Section 216. There is no duty laid on the rate-payers to provide their own bulls, carriers and drivers at; their own cost for the removal of the nightsoil and other offensive matter from their latrines and premises to the distant Municipal depots, and the contention of the Municipality that such a burden is placed primarily on the rate payers is (to use the words of the Subordinate Judge himself) 'as absurd as it is ingenious'. (6) The contention of the Municipality that there was an agreement between the Railway Company and the Municipality for payment of the charge is unsustainable. No such contract has been proved and the contract set up is also unlawful as a contract about scavenging fees can be made by the Municipal Council only under Section 218 of the Act (as amended in 1897) and the payment of fees under such contract could be demanded only at, such rate or rates as the Municipal Council may have prescribed with the. approval of the Governor in Council; and as the approval of the Governor in Council in has not been obtained to the rates at which the hire for carts, drivers and bulls in this case has been charged against the Railway Company, the charge was illegal. On these findings the Sub-Judge decreed the claim for the amounts paid within three years before suit dismissing the portion of the claim which related to the amounts paid more than three years before suit as barred by limitation.
7. On appeal the learned District Judge gave his findings as follows:
(a) My reading of the effect of the provisions" of the District Municipalities Act "is that the Municipal Council is ordinarily obliged to provide depots for the disposal of nightsoil, means of transport and an agency for assisting occupiers in collecting nightsoil, etc., from their premises." (6) As "occupiers of buildings or land are prohibited from keeping nightsoil for more than twenty-four hours on their premises or land (vide Section 221 and 220) and they are liable to penalties for retaining it for even a shorter period, if it be not kept in proper receptacles," it is the primary duty of the occupier to get rid of the nightsoil and "as I understand the Act he may make his own arrangements to convey it to the place of deposit provided for by the Municipal Council." (c) "It is not disputed that the Railway Company entered into a contract with the Municipal Council under the provisions of the original Section 209. It is clear from the correspondence that the charges were levied not for collection only but for transport as well. The charges were varied and increased from time to time. The contract was originally made in 1888 and payments on the basis of this contract continued to be made without objection till long after the amendment of the law by Act III of 1897. The first objections were raised in 1906". Then the Municipality required the Railway Company to enter into contracts under Section 218 and was demanding fees for its services under Section 218. "They were admittedly paid and there is no proof that the payments were made under protest prior to 1912". "I think it must be held that; an implied contract existed between the parties. There was however a defect in that the fees had never received the approval of the Governor in Council. This approval was accorded in pursuance of Government Order No. 1322 of 5th August 1908. I am unable to agree that this approval was inadequate". (d). "It is further urged that the fees are illegal because they were not prescribed by the council. As far as the record goes there is nothing to show that any resolution was passed by the Municipal Council as to the amount of the fees". (e) "I think the provisions of the Act were substantially complied with; a contract was entered into under Section 218 and the fees were levied under this agreement.
8. On these findings which I have noted down mainly in the words of the learned District Judge himself, he allowed the appeal and dismissed the suit with costs throughout.
9. We have heard elaborate arguments on all the questions in issue in this Second Appeal preferred by the plaintiff company. After careful consideration, I have come to the conclusion that this appeal ought to succeed. 1 am unable, to agree with the learned District Judge that under the provisions of the Act, as amended in 1897, it is the duty of the ratepayers to carry their nightsoil from their premises to the Municipal depot wherever situated. I have "compared the provisions of Act V of 1884 as originally passed with the same provisions of that Act: as amended by the Act of 1897. But it is unnecessary to set out the differences in detail, as the learned District Judge himself does not rely on any contract entered into under the provisions of Section 209 of the unamended Act, but only on what he considers the implied contract which he considers to be established under the provisions of Section 218 of the amended Act., The whole correspondence in 1888 is not produced in the case, and the single letter Exhibit II written by the Collector as Chairman of the Municipal Council in 1888 states merely that "there should be a contract between the Municipality and the Railway Company to remove their nightsoil and urine at a fixed rate", and that he proposed a rate of Rs. 12 par month for one nightsoil cart, and Rs. 9-12-0 per month for one urinal cart, the rates being liable to variation in future years. Having regard to the language of Section 209 of the old Act (which says that "the Chairman may, subject to the approval of the Municipal Council, contract with the owner or occupier of any building or land to supply him on payment with a scavenger for the removal of nightsoil", etc.) and to the fact that the Chairman did not get the approval of the Municipal Council and supplied not a scavenger or scavengers, but carts, bulls and drivers, I do not think that the contract implied by the payment by the Railway Company (or even expressly entered into as is said to have been admitted before the District Judge) at the rates mentioned in Exhibit II between 1888 and 1897 can be treated as made in accordance with any lawful contract or contracts (as the rates have varied) contemplated by Section 209. However, as I said, Section 209 was omitted when the Act was amended in 1897. The Railway Company objected in 1906 to make any payments thereafter and the District Judge relies therefore not on Section 209 of the old Act, but on Section 218 of the amended Act, and finds an implied contract established under that section because, between 1906 and 1913 the Railway Company made payments without any formal protest. That Section 218 says:
The Chairman may contract with the occupier of any building or land to remove nightsoil from latrines or cesspools therein or thereon or to remove any other offensive matter or rubbish generally from such, building or land, on such terms as to times and periods of removal and other matters as, to the said Chairman, may seem suitable and on payment of fees at such Rate or rates as the Municipal Council may have prescribed with the approval, of the Governor-in-Council.
10. I am clear that the contract intended under Section 218 is an express contract and not an implied contract Further Section 45 of the Act says:
Every contract made by, or on behalf of, a Municipal Council, whereof the value or amount exceeds Rs. 100, shall be in writing, and except in the case of contract made under the provisions of Sub-section (3) of Section 44" (which has no reference to the present case) "shall be signed by two Municipal Councilors one of whom shall be the Chairman or Vice-Chairman.
11. There is no such written contract produced in this case and any contract which contravenes the express provisions of the statute law is clearly illegal, and cannot be enforced.
12. I am further of opinion that Section 218 relates to contract with a rate-payer for removal of offensive matter and rubbish from inside his building or land to outside the building or land, with a view that that matter may be transported in the covered vehicles and vessels mentioned in Section 216(2) (which ought to be provided by the Municipality), and not to the transport of the matter so placed in the municipal covered vehicles or vessels from outside the building or land to the depots mentioned in Section 216(1). Even as regards the removal from within the building or land to the municipal covered vehicles or vessels, fees can be charged only after the approval of the Governor-in-Council has been obtained. There is nothing to show that such approval was obtained in this case. The learned District Judge refers to G.O. No. 1322 of 5th August 1908 as furnishing an 'adequate' approval by the Governor-in-Council. That Government Order is not on record, and even if it furnishes adequate sanction and was intended to be a sanction under Section 218, the absence of a written contract signed by two councilors and the fact that Section 218 does nut relate to the transport to the depot which is the contract now in dispute renders the levy illegal.
13. I am also clear that the District Judge was in error in holding that Sections 220 and 221 imply that it is the duty of the occupier of a building or land to remove his nightsoil to the municipal depot. Reading Sections 216 to 221 together, I am satisfied that it is the duty of the Municipal Council to remove the rubbish and offensive matter from outside the occupier's building or land to the depot which they are bound under the Act to provide, that they are bound also to have the covered vehicles or vessels for the removal of the offensive matter pass by or placed at convenient positions on the road so that when what in collected by the occupants of the buildings or, lands is placed by them in convenient spots (outside their buildings or lands) the matter can be taken into such covered vehicles or vessels by the Municipality and transported to the depots, and that it is illegal for the Municipality to charge any fees for transport by such covered vehicles or vessels to the depot, Even a written contract for such transport to the depot would, in my opinion, be void for want of consideration.
14. In the result, I would reverse the judgment of the District Judge and restore that of the Subordinate Judge with costs here and in the Court below payable by the respondent to the appellant.
15. This Second Appeal arises out of a suit by the South Indian Railway Company to recover from the Municipal Council of Trichinopoly sums levied from them as scavenging fees and, paid by the company under protest. The Subordinate Judge gave a decree for Rs. 2,457 with interest. The decree was reversed by the District Judge. Hence this second Appeal.
16. It is clear from the judgments in the case that the fees were levied for removal of nightsoil from the premises of the plaintiffs to a municipal depot about 6 or 7 miles from the town and it is admitted that unless the levy of these fees can be justified under Section 218 of the District Municipalities Act, it was illegal. The Lower Appellate Court has suggested that they were payable under an implied contract. But no attempt has been made in this Court to support this view. The Subordinate Judge in a long and elaborate judgment has found that the Municipality have no right under the Act to charge the plaintiffs for removing nightsoil to their depot and in this view I entirely concur.
17. A minor question has arisen during the hearing as to whether the Municipality could charge the Railway Company for carting nightsoil over their premises as far as the public road. I do not think it necessary to express any final opinion on this point, because Mr. Chamier for the appellants stated that the Railway Company would have no objection in coming to an arrangement with the Municipality for this limited work or, if such an arrangement could not be made, would be prepared themselves to place the nightsoil in convenient access to the public road.,
18. As far as we can ascertain, the basis on which these fees were calculated was the supply of a certain number of Municipal carts and drivers for the removal of nightsoil to the depot above referred to. We have not got any account showing exactly how the figure was arrived at, but it appears from the previous correspondence, and from previous payments, that this was the basis Mr. Chamier contended that under Section 216 it was the duty of the Municipality themselves to remove the nightsoil to any place they chose over the public roads. Mr. Ramesam on behalf of the respondent stated two propositions: (1) that the Act intended to impose upon the householders in a Municipality the primary duty of removing nightsoil to any place, I assume, within reasonable limits chosen by the Municipality and that the Act threw no duty whatsoever on the Municipal Council in connexion with the removal of nightsoil even though the funds at their disposal permitted, It is sufficient to say that an examination of the scheme of the Chapter containing the provision which we have to construe negatives these contentions completely. Chapter II of the District Municipalities Act, 1884, as amended, creates Municipal Councils, vests property in them, and states their mode of doing business, and Chapter III permits the levying of certain taxes and tolls, and provides the mode of realizing them. Chapter IV lays down the purposes to which the funds raised under this Act shall be applied. We are concerned with the sections in this Chapter IV. Section 113 says:
The funds raised under this Act shall... be applicable within the municipalities in which they are raised" to certain purposes one of which is "measures of public utility calculated to promote the safety, health, comfort, or convenience of the people.
19. From Section 117 onwards are a series of specific provisions for the application of municipal funds. Some of them are compulsory and some are permissive and all of hem are so far as the funds at their disposal may admit. The purposes are education, medical. relief, vaccination, water-supply, repair of public streets and bridges, erection of buildings, provision of slaughter-houses and markets and public latrines and construction of drains. The 12th clause beginning with Section 216 is beaded 'General Sanitary Regulations' and Section 216 is in the following terms:
The Municipal Council shall so far as the funds at their disposal permit, make arrangements for (a) the regular sweeping and cleaning of the streets; (b) the regular removal from latrines and private houses of nightsoil, the carcasses of animals and other offensive matter; and (c) the regular removal from dustbins and private houses of dust, ashes, kitchen refuse and other similar inoffensive matter.
20. It is to be noted that the removal from the latrines and private houses of nightsoil is put in the same classification as regular sweeping and cleansing of the streets. Therefore, unless the Municipality can show that the funds at their disposal do not admit of their doing the work of removal of nightsoil, they are by statute required to do this work just as they are required to sweep and clean the streets. The section continues as follows:
and with this object, they shall, so far as the funds at their disposal permit, provide depots for the deposit of street sweepings, or nightsoil, the carcasses of animals and other offensive matter, and of dust, ashes, kitchen refuse and other similar inoffensive matter.
21. These are the three classes referred to in the previous subsections. They shall also provide
covered vehicles or vessels for the removal of night-soil and other offensive matter; vehicles or other suitable means for the removal of the carcasses of large animals and of dust, ashes, kitchen refuse and other similar inoffensive matter.
22. This provision covers also the classes above referred to. And lastly they shall provide
dust-bins for the temporary deposit of dust,... and other similar inoffensive matter.
23. This last provision applies only to one of the above-mentioned classes, So that there is no duty under the section thrown on the Municipality to provide receptacles for nightsoil, carcasses of animals and other offensive matter, their duty being only to provide suitable vehicles for the removal. Then comes Section 917, under which the Municipal Council may, by notification, require all occupiers of buildings to provide, within a period specified in such notification moveable receptacles for the temporary deposit of nightsoil or other offensive matter. This section gives the Municipality the right to compel house-owners to provide receptacles for offensive matter, whereas under the previous section they are themselves compelled to provide dust-bins for inoffensive matter. They may further, under Section 217, require that
Such receptacles shall be in readiness, screened from public view, for the removal of the contents thereof, free of charge, by the municipal servants.
24. These provisions in Section 217 are alternative to the Council having made a contract with a householder for the removal of night-soil or other offensive matter. It was suggested that though Section 217 might. throw on the Municipality the duty of removing over the public streets night soil kept in temporary receptacles yet if they did not choose to make any such notification the whole burden of such removal was thrown on the occupier. And in aid of this construction, reliance is placed on Section 218 which is the alternative to Section 217, the language of which is as follows:
The chairman may contract with the occupier of any building or land to remove nightsoil from latrines or cesspools therein or thereon, or to remove any other offensive matter or rubbish generally from such building or land, on such terms as to times and periods of removal and other matters as to the said Chairman seem suitable and on payment of fees, etc.
25. I am quite clear that Sections 217 and 218 cover the same ground and that it is impossible to infer from Section 218 that if the chairman does not contract and if he does not by notification require under Section 217, the duty is cast on the occupier of the building of removing nightsoil along the public road in spite of the fact that this duty is thrown on the Municipality by Section 216.
26. Another section relied on by the respondent is Section 221 which provides that
Every occupier of a building 6r land who keeps for more than twenty-four hours, or otherwise than in a proper receptacle, any nightsoil or other offensive matter is such building or on the roof thereof, or in any out-building or yard, or on any payment or verandah attached or belonging to such building, or on such land shall be liable to a fine.
27. This is the section relied on by Mr. Ramesam as being the legislative provision for which this portion of the Act headed General Sanitary Regulations' was enacted. As was pointed out above, this method of construction ignores the scheme of the Act and it is necessary therefore to read the section in such a manner as not to conflict with Section 216, the opening section of this group of General Sanitary Regulations.' There is no difficulty in doing this. The duty of removal being thrown on the Municipality by Section 216, the object of this section is to penalize persons who do not' make arrangements necessary for the Municipalities carrying into effect their duty of removal. It also punishes the improper deposit of nightsoil in any building which is offensive to public health. Section 220, which immediately precedes it, indicates that Section 221 must have a limited meaning, for Section 220 enacts that when a notification has been issued under Section 217 and the householder has provided a moveable receptacle, as required by the Municipality, then if he does not deposit therein all nightsoil or other offensive matter or keep the same in readiness, screened from public view, he shall be liable to fine. Section 220 having provided for cases arising after notification, Section 221 applies to cases where no contract has been given for the removal from a building or land and also, I have no doubt, for cases where such a contract has been made. It would be impossible to contend that where a notification under Section 217 has been issued and a suitable moveable receptacle supplied and kept in readiness, screened from public view, there still remained the duty on the householder of removing the nightsoil from such receptacle over the public road. This has not been suggested, but the alternative suggestion is, to my mind, as great a violation of the provisions, as this would be, for it amounts to this that where a municipality has not issued such a notification for the provision of the receptacle there is cast on the public the duty of removing the nightsoil from the latrines the whole way to the depot. It is obvious that if such a duty had been intended by the Act no Municipality would be so foolish as to incur the liability for carrying, the nightsoil from the private premises to the depot in return for a provision by the householder of a moveable receptacle kept in readiness. I have little doubt that Section 217 was intended to make the execution of the duty cast on the Municipality under Section 216 of removal from latrines more simple in operation and I am clear that if the Municipalities do not choose to issue such a notification they cannot impose upon the occupier of the building a higher liability. Where no such notification has been issued then there remains the duty cast on the householder of making such arrangements as will enable the Municipality to perform the duties cast on them by Section 216. This can be done either through a contract by the house-holder with the Municipality, under Section 218 or in the absence of such a contract the householder may by himself make such a provision. Whether the Municipality in the absence of a, notification under Section 217, can be compelled to enter the premises and remove the nightsoil, etc. over the private land of a householder is a matter I do not propose to decide at present. But bearing in mind that Section 218 enables the Municipality to contract for this work I am inclined to think that a householder cannot even under the wide words of Section 316 throw this duty on the Municipality. Where we find two provisions, Sections 217 and 221, under which a Municipality may by notification give directions for the removal of nightsoil to a place of access by carts and where under Section 218 the householder can enter into a contract for this work with the Municipality it would be strange if, in the absence of such a notification and in the absence of a contrast. this duty was imposed on the Municipality. This question is not, however, before as and I express no final opinion on it. The fees were admittedly levied for the removal over the public roads to a municipal depot and I am clear that the levy of such fees is beyond the powers of the Municipality, I agree therefore with the Subordinate Judge that the plaintiffs are entitled to recover three years fees paid under protest and would restore his decree with most of the plaintiffs throughout here and in the Lower Appellate Court.