P L D 1957 (W (PLP)

KAYANI, J.‑

The Letters Patent Appeal by the Municipal Committee of Sargodha against a judgment of Yaqub Ali, J. in second appeal has arisen in the following circumstances. The Municipal Committee aforesaid filed a suit against the Federation of Pakistan for a declaration to the effect that a torrent water channel passing through the Remount Depot and connected with the Municipal sullage system through a siphon passing under the Lower Jhelum Canal vests in the Committee and that the Remount authorities have no right to obstruct the channel, and for a permanent injunction requiring the Remount authorities to remove the band, which they have built across the channel, and in general from inter fering with the plaintiff's rights. The suit was decreed and in appeal against the decree to the District judge resulted in dismissal. In second appeal, however, it was held that the channel aforesaid did not vest in the Committee. The facts, as disclosed in the plaint, are that the town of Sargodha was founded in 1902‑03 with a drainage system devised by the Sanitary Engineer to the Punjab Government, as indicated in the plan attached to his letter Exh. P. D. dated the 21st of October 1902, addressed to the Colonization Officer, providing for the rain and sullage water of the town to be carried through an outfall to a torrent water channel, which already existed towards the west of the town and passed through low‑lying Crown waste land which in the year 1907 was made over to the Remount Depot. The limits of the Municipal Committee extended on the west to the Lower Jhelum Canal and the torrent water channel was connected with the sullage system by a siphon passing under the Canal. In the aks musavi for the year 1911‑12 this torrent water channel is shown as gandi nali. After passing through the Remount Depot the channel fell, into a seepage drain which has been constructed for drawing away the surface water of the surrounding water‑logged area. As the population of the town, originally planned for 9000 persons increased, the Committee in 1925 built pacca tanks on the . eastern side of the canal to collect sullage water which was then leased out annually to proprietors of adjoining lands through a contractor. Normally the entire sullage water was thus consumed but by 1944 the population of the town having been increased to about 46 thousand, the tanks were found inadequate for the, increased volume of sullage water, with the result that the surfeit flowed under the canal and passed through the Remount Depot area, producing unhygienic conditions for a large number of officers with their families soldiers and the animals kept by the depot. To avoid the nuisance, the Remount authorities at first built a gate across the torrent water channel and opened it only in times of great stress. Subsequently they built a pacca band which resulted in a threat to the town during the rainy season and which normally caused a serious break‑down in the sanitary conditions of the town. On the 23rd of December 1943 the Committee forcibly made a cut in the band and relieved the situation arising from the accumulation of the sullage and rain water. This breach was again closed by the military authorities, but was opened again on the 23rd of February 1944 on the intervention of the District Magistrate. The breach was opened more as a matter of favour than as acknowledgment of the Committee's rights, which then became the subject of correspondence between the Committee and the Remount authorities. This was followed by the issue of notices by the Committee on the Governor‑General in Council. The Punjab Government at this stage proposed the appointment of a Commission to arrive at a satisfactory solution of the matter but as no commission was actually set up, the Committee filed the present suit. We have no doubt that on the evidence the Courts below were justified in finding that the torrent water channel existed when the area surrounding it was given over by the Government to the Remount Depot in 1907 and that this channel formed an integral part of the drainage scheme of the Committee. Nor is it claimed that when the land surrounding the torrent water channel was allotted to the Remount Depot, the proprietary rights in the channel were also allotted to the depot. In other words, the Committee was not divested of its rights to pass the rain and sullage water through the torrent water channel after the Crown waste land had been given over to the Remount authorities. The learned Single judge did not disagree with these findings of fact but held that they were liable to be set aside "on the short ground that the torrent water channel which passes through the Remount Depot lands, being situated outside the municipal limits of the town of Sargodha, does not legally vest in it according to the provisions of section 56 of the Punjab Municipal Act". Thus the only point which arises for determination in this Letters Patent appeal is whether the decision of the learned Single Bench on the law point is correct. Now subsection (1) of section 56 of the Punjab Municipal Act, III of 1911, so far as relevant, reads as follows :‑ "Subject to any special reservation made or to any special conditions imposed by the Provincial Government, all property of the nature hereinafter in this section specified and situated within the municipality, shall vest t and be under the control of the committee, and with all other property which has already vested or may here after vest in the committee, shall be held and applied by it for the purposes of this Act, that is to say‑ (a) (b) (c) all public sewers and drains, and all sewers, drains, culverts and water‑courses in or under any public street. or constructed by or for the committee alongside any public street, and all works, materials and things appertaining thereto ; (d) (e) (f) (g) By this subsection, the property enumerated in clauses (a) to (g) becomes vested in the committee if it is "situated within the municipality' and it is to be applied by the committee "for the purposes of this Act." But apart from the property enumerated in clauses (a) to (g), the subsection mentions two other categories of the property which also should be applied "for the purposes of the Act", namely (1)I all other property which has already vested in the committee and (2) all other property which may hereafter vest in the committee. There is no restriction in respect of these two categories that they should be " situated within the) municipality". It is, therefore, possible to contemplate property which is not within the municipal limits but which has "already vested" in the committee. The term "vest" is not necessarily a term of art. It not only means that the thing which vests in a person in vest in him with full proprietary rights attached to it. It H also includes the immediate right of user, enjoyment or control over a thing. If, therefore, the entire torrent water channel, both within and without the Remount Depot area, has from the very inception of the town been a part of the drainage, which is now controlled by the Committee, it cannot be argued that a part thereof did not vest in the Committee merely because the area through which it passed came to be allotted to another authority, although the Committee was not specifically divested of its control. That the property which vests in a committee is not necessarily confined to the Municipal limits is evident from the provisions of section 132 of the Act. Section 132 : "The committee may carry any cable, wire, pipe. drains, sewer or channel of any kind, for the purpose of establishing telephonic or other similar communication or of carrying out and establishing or maintaining any system of lighting, drainage or sewerage, through, across, under or over any road, street, or place laid out as or intended for a road or street, and, after giving reasonable notice in writing to the owner or occupier, into, through, across, under, over or up the side of any laid or building whatsoever situate within the limits of the municipality, and, for the purpose of the introduction, distribution of outfall of water or for the removal or out of all of sewerage without such limits, and may at all times do all acts and things which may be necessary or expedient for repairing or maintaining any such cable, wire, pipe, drain sewer or channel, as the case may be, in an effective state for the purpose for which the same may be used or intended to be used ; Provided that no nuisance more than is necessarily caused by the proper execution of the work is created by any such operation; and Provided, further, that reasonable compensation shall be paid to the owner or occupier for any damage at the time sustained by him and directly occasioned by the carrying out of such operations". The words underlined, when read uninterruptedly, will be found relevant to the present case. Now if a municipal committee is empowered under this section to carry any drain, sewer or channel through any land for the purpose of introduction or distribution of outfall of water or for the removal or outfall of sewerage without the municipal limits, it does not stand to reason that. ml respect of an outfall of water or a drain, which was allready vested in the committee, or whatever body preceded it, before subsection (1) of section 56 was enacted, its control should have been taken away. We are, therefore, clearly of the opinion that the torrent water channel vests in the Committee. It is unnecessary to point out that the granting of al preventive relief by injunction is in the discretion of the Court and that in unsuitable cases it may be refused. In the present case, it cannot be denied that the volume of sullage water, which normally used to be consumed in the area lying east of the canal, has now so increased that it must necessarily pass through the torrent water channel, thus causing great inconvenience to the residents of the depot. It is also clear that the assurances held out by the Committee to the Remount authorities that they would build additional tanks to store the sullage water and then distribute it to the proprietors of the adjoining lands to be used for irrigation have not so far been fulfilled. The language of section 132 itself shows that the committee must maintain its drains in such a manner that no unnecessary nuisance is caused by their existence. We notice that the learned Single Judge granted time to the Committee to erect a tank or tanks for the storage of sullage water, but that the Committee did not avail of it. While, therefore, .we hold that the torrent water channel is vested in the Committee and that the Committee had a right to pass rain and sullage water through it, we make it clear that this right will be regulated by the execution Court so that not more than necessary nuisance is caused r. to the Remount Depot. The execution Court should also examine the necessity of requiring the Committee to construct a metalled and covered drain within reasonable time so as to minimise the nuisance. It has been stated before us on behalf of the Committee that the drain can be metalled and covered for about Rs. 1,75,

000. We would urge the Provincial Government to extend a helping hand to the Committee 'or to take the scheme entirely in its own hands. The appeal is accepted and the suit is decreed. In the circumstances of this case, the parties will bear their own costs throughout. A. H. Appeal accepted.