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Nur Mahomed Gulam Rasul Vs. the Surat City Municipality - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in57Ind.Cas.988
AppellantNur Mahomed Gulam Rasul
RespondentThe Surat City Municipality
Excerpt:
bombay district municipal act (iii of 1901), section 151(1) - nuisance--municipality, power of, to abate nuisance--discretion--court, power of interference of. - - it is not for the court to deal with the questions whether what is complained of by the municipality has been or is likely to be a nuisance, and to consider whether as a matter of fast that particular use of land within the municipal limits in a nuisance or is likely to become a nuisance to the neighbourhood......and occupations.' one of those trades or occupations is the use of property for the purpose of a lime-kiln. so that we must take it that a lime-kiln in view of the legislature might be a nuisance, and the section gives the municipality power, if it be shown to their satisfaction that any place used for the purpose of a lime-kiln is, or is likely by reason of such use and situation to become, a nuisance to the neighbourhood, or is so used, or situated as to be likely, to be dangerous to life, health or property, by written notice to require the owner or occupier at once to discontinue the use of, or at once to desist from carrying out or allowing to be carried out the intention to use, any such place for the purpose of a lime kiln. therefore, if there is a lime kiln within the limits of.....
Judgment:

Norman Macleod, C.J.

1. The plaintiff is the owner of a lime-kiln situated on land near the Variavi Gate at Surat. On the 11th November 1914 a notice, dated the 28th October was served by the defendant municipality on the plaintiff under Section 151 of the Bombay District Municipal Act, 1901, requiring him to stop working the said kiln on the ground that it was likely to cause a nuisance. The plaintiff, therefore, has brought this suit for a declaration that the order of the defendant municipality was illegal, wanton, capricious and oppressive, and for a permanent injunction restraining the defendant from interfering with the plaintiff in carrying on his work in the aforesaid kiln and costs. The trial Court decreed that the plaintiff's kiln was not a nuisance, within the meaning of Section 151(1) of the Bombay District Municipal Act, which the municipality had a right to order to be discontinued.

2. The District Judge, on appeal, reversed that decree and directed that the plaintiff's suit be dismissed with costs It is quite obvious from the judgment of the trial Judge that he looked at the case from an entirely wrong point of view. Section 151 of the Bombay District Municipal Act, 1901, comes under the heading 'Nuisances from certain trades and occupations.' One of those trades or occupations is the use of property for the purpose of a lime-kiln. So that we must take it that a lime-kiln in view of the Legislature might be a nuisance, and the section gives the municipality power, if it be shown to their satisfaction that any place used for the purpose of a lime-kiln is, or is likely by reason of such use and situation to become, a nuisance to the neighbourhood, or is so used, or situated as to be likely, to be dangerous to life, health or property, by written notice to require the owner or occupier at once to discontinue the use of, or at once to desist from carrying out or allowing to be carried out the intention to use, any such place for the purpose of a lime kiln. Therefore, if there is a lime kiln within the limits of the municipality, they are the judges as to whether it is, or is likely to become, a nuisance to the neighbourhood, and the Courts will not interfere with the exercise of that power unless it can be shown that they have exercised it in an improper manner. It is only for the purpose of seeing whether the municipality has exercised its power in the proper way that the Court will consider the evidence to see what steps the municipality took before they issued the notice, and in this case the notice was issued on the strength of a report from the Health Officer, and if the Health Officer reported that this lime-kiln was, or was likely to become, a nuisance, how can it possibly be said that the municipality acting on his report were acting in a manner not recognised by law? I agree entirely with what the learned Appellate Judge says on this question. It is not for the Court to deal with the questions whether what is complained of by the municipality has been or is likely to be a nuisance, and to consider whether as a matter of fast that particular use of land within the municipal limits in a nuisance or is likely to become a nuisance to the neighbourhood. Therefore, I am in entire agreement with the decision of the learned District Judge and the appeal must be dismissed with costs.


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