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Hakim MoIn UddIn Vs. Shiekh Abdus Samad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1937All78
AppellantHakim MoIn Uddin
RespondentShiekh Abdus Samad
Excerpt:
- - , provides an exception to this rule and enacts that such a suit can be maintained even without proof of special damage provided the consent of the advocate general is obtained and the other conditions of the section are satisfied......by reason of such use, or by reason of such intended use, occasions or is likely to occasion a public nuisance, the board may at its option require by notice the owner or occupier of the building or place, (a) to desist or refrain, as the case may be, from using, or allowing to be used, the building or place for such purpose, or (b) only to use, or allow to be used, the building or place for such purpose under such conditions or after such structural alterations as the board imposes or prescribes in the notice with the object of rendering the use of the building or place for such purpose free from objection.3. the defendant applied for permission for the setting up of his machine and the permission was granted to him on certain conditions. an appeal against the order of the municipal.....
Judgment:

Ganga Nath, J.

1. This is a defendant's appeal against the order of remand passed by the learned civil Judge. The plaintiff-respondent brought a suit against the-defendant-appellant for a perpetual injunction to restrain the defendant from working his flour-mill in house No. 104 in mohalla Khalifa Mandi, Allahabad. The plaintiff's house is No. 126 and adjoins the defendant's house No. 104. The defendant set up a flour-mill with a 45-50 H.P. engine in house No. 104 in September 1931 with the permission of the Municipal Board. An appeal was filed by the plaintiff against the grant of permission by the Municipal Board to the defendant but it was rejected. Thereafter the defendant set up his mill and worked it for sometime. The plaintiff has stated his case in para. 4 of his plaint as follows:

The vibrations, sound and smoke o the defendant's mill have rendered the plaintiff's house uninhabitable. They have created a great nuisance, and affect the health adversely. The plaintiff's house has been cracked at different places on account of the vibrations, and all sorts of losses and mental and physical troubles were and are caused to the plaintiff.

2. The defendant's chief contention was that he had set up his machine with the permission of the Municipal Board and the civil Court had therefore no jurisdiction to try this suit. The trial Court found in favour of the defendant and dismissed the suit holding that it was barred by Section 321, Municipalities Act. On appeal the learned civil Judge found that the suit was not barred and remanded the suit to the trial Court for decision. Against this order of remand the present appeal has been filed. The only question for consideration in this appeal is whether the suit is barred by Sections 245 and 321, U.P. Municipalities Act. Section 245 lays down:

(1) If it is shown to the satisfaction of a board that any building or place within the limits of the Municipality which any person uses or intends to use as factory or other place of business of the manufacture, storage, treatment or disposal of any article, by reason of such use, or by reason of such intended use, occasions or is likely to occasion a public nuisance, the board may at its option require by notice the owner or occupier of the building or place, (a) to desist or refrain, as the case may be, from using, or allowing to be used, the building or place for such purpose, or (b) only to use, or allow to be used, the building or place for such purpose under such conditions or after such structural alterations as the board imposes or prescribes in the notice with the object of rendering the use of the building or place for such purpose free from objection.

3. The defendant applied for permission for the setting up of his machine and the permission was granted to him on certain conditions. An appeal against the order of the Municipal Board granting permission to the defendant was filed by the plaintiff under Section 318, Municipalities Act, but it was dismissed. Section 318 lays down:

(1) Any person aggrieved by any order or direction made by a board under the powers conferred upon it by Sections 180(1), 186, 205(1), 208, 211, 222(6), 241(2), 245, 278 and 285, or under a bye-law made under a heading G of Section 298, may within 30 days from the date of such direction or order, exclusive of the time requisite for obtaining a copy thereof, appeal to such officer as the Local Government may appoint for the purpose of hearing such appeals or any of them, or, failing such appointment to the District Magistrate : provided that if, in the latter ease, the District Magistrate be himself a member of the board, the appeal shall lie to the Commissioner (2). The appellate authority may, if it thinks fit, extend the period allowed by Sub-section (1) for appeal. (3) No appeal shall be dismissed or allowed in part or whole unless reasonable opportunity of showing cause or being heard has been given to the parties.

4. Section 321 of the Act lays down:

(1) No order or direction referred to in Section 318 shall be questioned in any other manner or by any other authority than is provided therein. (2) The order of the appellate authority confirming, setting aside or modifying any such order or direction shall be final : Provided that it shall be lawful for the appellate authority, upon application, and after giving notice to the other party, to review any order passed by him in appeal by a further order passed within three months from the date of his original order.

5. Section 245 relates to public nuisances. If a person feels himself aggrieved by any order or direction made by a board under Section 245 relating to a public nuisance, his remedy is provided under Section 318. There can be no doubt that it is not open to any person to question any order or direction of the municipal board made by it under Section 245 of the Act on the ground of any injury arising from a public nuisance. The sections referred to above do not relate to private nuisances and the remedies of persons in respect thereof. The words 'public nuisance' have not been defined in the Code. By virtue of Section 3(44) General Clauses Act, it means a 'public nuisance'' as defined by the Indian Penal Code. Under Section 268, Penal Code, a 'public nuisance' is an act or illegal omission,

which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.

6. The essence of the definition is that the injury, danger or annoyance must be to the public or to the people in general who occupy the property in the vicinity or who use such public right. In the case of a] public nuisance a person cannot maintain a suit in respect of it unless he is able to show that he has suffered a special damage thereby. Section 91, Civil P.C., provides an exception to this rule and enacts that such a suit can be maintained even without proof of special damage provided the consent of the Advocate General is obtained and the other conditions of the section are satisfied. The section enacts only a rule of procedure and does not, as is made clear by Sub-section (2), deprive any person of any right which he may have independently of its provisions. Sub-section (2) of Section 91 Civil P.C., lays down:

Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.

7. Private nuisance includes all injuries to an owner or occupier in the enjoyment of the property of which he is in possession without regard to the quality of the tenure; or in other words anything done to the hurt or annoyance of the land, tenements or hereditaments of another, without any lawful ground of justification or excuse: vide Pollock on Torts, p. 422. The Municipalities Act does not give any power to the boards to deal with the questions of private nuisances or parties' private rights in respect thereof. In Abdul Qayum Khan v. City Board : AIR1931All147 it was held:

Although the Municipalities Act is an Act for local self government, it was never the intention of the legislature to invest the Municipal board or the appellate authority under the Act to pronounce decisions upon disputes relating to private rights between private individuals or to unduly encroach upon the said rights except upon the grounds of public health, safety or convenience.

8. The plaintiff has come here on the allegation that the vibrations of the engine of the defendant have caused cracks in the walls of his house. It is one of the main grounds on which his suit is based. The Municipal Board did not give any license to the defendant to work his factory or mill in such a manner as to cause damage to the private property of his neighbours. The plaintiff's cause of action has arisen from the cracks which were caused according to him by the working of the defendant's mill. If any such injury has been caused to the defendant he has certainly a right to seek his remedy in the civil Court. The remedy which he may seek in the civil Court will not in any way interfere with the orders or directions given by the Municipal Board referred to under Section 321, Municipalities Act. Under the directions of the Municipal Board it may still be open to the defendant to continue to work his mill but in consideration of the private rights of the plaintiff it would be incumbent on him (the defendant) to work his mill in such a manner that it may not cause any damage to the person or property of the plaintiff.

9. The learned Counsel for the appellant has relied on Bhawani Prasad v. Pahlad Singh : AIR1930All531 , Sheo Ram v. Sone Lal : AIR1929All912 , Har Prasad v. Emperor : AIR1932All673 , Ambika Prasad v. Emperor : AIR1936All693 and Municipal Board Bara Banki v. Rajab Ali A.I.R. 1926 Oudh 413 These eases do not apply to the present ease because the present suit is not directed to question the orders or directions of the municipal board. I find that the order passed by the learned Civil Judge is correct. There is no force in the appeal. It is therefore dismissed with costs. Permission to file a Letters Patent Appeal is granted.


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