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Hakim MoIn UddIn Vs. Sheikh Abdus Samad - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1939All599
AppellantHakim MoIn Uddin
RespondentSheikh Abdus Samad
Excerpt:
- - in the first place, section 245 of the act is concerned with public nuisances, whereas upon the facts alleged the nuisance complained of in the case with which we are now dealing is essentially of a private character......relies on sections 245, 318 and 321, municipalities act, and he pleads that the suit is barred by reasons of section 321. section 245 authorizes a municipal board to direct any person who is using a building or place within the limits of the municipality as a factory, etc. to desist or refrain from so using it or to use it under certain conditions if a public nuisance is being occasioned or is likely to be occasioned. section 318 gives a right of appeal to a certain authority to any person aggrieved by an order of the board passed raider section 245 and certain other sections of the act; and section 321 provides:(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.....
Judgment:

Collister, J.

1. This is a defendant's appeal arising out of a suit for injunction. It appears that the defendant applied to the Municipal Board for permission to install a flour mill in a certain building, and permission was granted on certain conditions. The building in question adjoins the plaintiff's house, and the latter appealed against the order of the Municipal Board, but his appeal was disallowed. Thereafter he instituted the suit out of which this appeal arises. The plaintiff's case was that his house had been cracked by the vibrations from the mill and had become uninhabitable on this account and also on account of the smoke and noise attendant on the working of the mill, and the plaintiff's health had been adversely affected. One of the pleas in defence was that the Civil Court had no jurisdiction to entertain the suit.

2. The trial Court found in favour of the defendant and dismissed the suit on the ground that it was barred by Section 321, U.P. Municipalities Act. On appeal the decree of the trial Court was reversed and the suit was remanded for decision on merits. A second appeal was preferred to this Court and was dismissed by a learned Judge. From that decree the present appeal has been filed under the Letters Patent. The only point for decision before us is whether the suit is or is not barred. Learned Counsel for the defendant-appellant relies on Sections 245, 318 and 321, Municipalities Act, and he pleads that the suit is barred by reasons of Section 321. Section 245 authorizes a Municipal Board to direct any person who is using a building or place within the limits of the Municipality as a factory, etc. to desist or refrain from so using it or to use it under certain conditions if a public nuisance is being occasioned or is likely to be occasioned. Section 318 gives a right of appeal to a certain authority to any person aggrieved by an order of the Board passed raider Section 245 and certain other Sections of the Act; and Section 321 provides:

(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.

3. There are two answers to learned counsel's plea that the suit is barred under Section 321 of the Act. In the first place, Section 245 of the Act is concerned with public nuisances, whereas upon the facts alleged the nuisance complained of in the case with which we are now dealing is essentially of a private character. The plaintiff prayed for an injunction on the ground that the working of the defendant's flour mill was causing a nuisance to him personally as an individual living next door to the defendant. There is no suggestion in the plaint that any other members of the public, apart from the plaintiff, were in any way being adversely affected by the working of the flour mill.

4. In the second place, there is nothing whatsoever in the Municipalities Act which gives jurisdiction to the Municipal Board to adjudicate in matters of controversy between private individuals, and there is nothing in the Act which can be held to prevent the plaintiff from coming to Court and pleading that the defendant was working his flour mill in such a way as to cause a, nuisance to himself. When the Municipal Hoard grants sanction and imposes conditions under Section 245 of the Act, what it has to consider is the interests of the public; it is not concerned with the rights or interests of individuals as such. Learned Counsel has referred us to certain authorities, but only one of them need be mentioned. This is the case in Sheo Ram v. Sone Lal : AIR1929All912 . In that case the plaintiff had obtained the sanction of the Municipal Board to build a platform. After he had begun to build it, a third person, a man named Sheo Ram, appealed to the District Magistrate under Section 318 of the Act on the ground that the construction would narrow the street and would interfere with the right of way of the public of which he was a member; and in the result the appeal was allowed and an order was passed for demolition of the platform. Thereafter the plaintiff instituted a suit in the Civil Court impleading the Municipal Board and Sheo Ram as defendants, and he prayed for an injunction to restrain the defendants from interfering; with his right to construct the platform. It was held by a Bench of this Court that the order of the appellate authority passed under Section 321, Municipalities Act, was final and the Civil Court was not competent to entertain the suit. In that case what the-plaintiff was in effect seeking was to have the order of the appellate authority directing demolition of his platform set aside, and it is obvious that a suit for such a relief would be barred by Section 321, Municipalities Act.

5. In the present case the order of the appellate authority upholding the sanction, which the Municipal Board accorded to the defendant to have a flour mill in his own building at this site may be final so far as it goes; but this will in no way interfere with the plaintiff's right to bring an action on the ground that the mill is being worked in such a way as to cause nuisance of, damage to him or his property. In our opinion the Civil Court was competent to entertain the suit out of which this appeal arises. We agree with the view taken by the learned Judge of this Court, and we accordingly dismiss this appeal with costs.


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