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Pandya Manubhai Muljibhai Alias Himatlal Vs. the Umreth Town Municipality and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1964)5GLR1026
AppellantPandya Manubhai Muljibhai Alias Himatlal
RespondentThe Umreth Town Municipality and ors.
Cases ReferredMunzur Hasan v. Muhammad Zaman (supra). But
Excerpt:
.....not constitute an actionable wrong at the instance of a member of the public does not depend for its validity on the distinction between indictment and civil action......westropp c.j. and melvill j. took the view that the plaintiffs were not entitled to maintain a civil suit in respect of such obstruction unless they could prove some special damage to them personally in addition to the general inconvenience caused to the public. the mere absence of religious or sentimental gratification arising from carrying tabuts along a public road was in the opinion of the learned judges not any such particular loss or injury as would be sufficient according to english and indian precedents to sustain a civil action. the learned judges proceeded entirely on english authorities which are based on a distinction between proceedings by indictment and proceedings by civil action and applied that distinction to the indian law for taking the view that a civil action for.....
Judgment:

P.N. Bhagwati, J.

1. The short but interesting question of law that arises in this Second Appeal is whether a member of the public is entitled without proof of special damage to maintain an action for removal of an encroachment on a public street without obtaining the consent of the Advocate General under Section 91 of the Code of Civil Procedure. The plaintiffs are Patidars residing in the town of Umreth and are Managers of a Dharamshala belonging to the Patidar community, which abuts on a public street situate in what is known as Bordi Falia in Umreth. According to the plaintiffs since times immemorial the Patidars of the town of Umreth have been taking their carts along the said public street and using the said public street for passing and repassing. On 6th September 1954 however defendant No. 2 who owns a house with its back abutting on the said public street obtained the permission of defendant No. 1 being the Municipality for the town of Umreth and after obtaining such permission plastered the back wall of the house thereby encroaching about 3 on the said public street and also constructed an over-hanging step which constituted a further encroachment on the said public street to the extent of about 9. The plaintiffs alleged that as a result of this act on the part of defendant No. 2 irreparable injury was caused to them to the user of the Dharamshala by the Patidars and to the right of way of bullock's carts etc. along the said public street. The plaintiffs therefore filed a suit against the defendants for a mandatory injunction directing defendant No. 2 to remove the encroachment caused by the plastering of the wall as also the over-hanging step constructed by him at the back of the house and also for a prohibitory injunction restraining defendant No. 2 from putting up any construction or over-hanging step which would cause obstruction to the exercise of the right of way of the plaintiffs. Though the reliefs sought were against defendant No. 2 defendant No. 1 was also impleaded as party defendant to the suit since the plastering of the wall and the putting up of the over-hanging step had been done by defendant No 2 after securing the requisite permission of defendant No. 1. The suit was resisted by both the defendants. Various contentions of a preliminary nature were taken on behalf of defendant No. 1 but they do not survive for consideration in view of the fact that the suit as against defendant No. 1 has been dismissed as a result of the decree passed by the learned trial Judge and confirmed by the learned Assistant Judge in appeal and no second appeal has been filed against that part of the decree on behalf of the plaintiffs. Defendant No. 2 also raised various points in answer to the suit one of which was that the suit was not maintainable by the plaintiffs inasmuch as it was filed by them without obtaining the consent of the Advocate General under Section 91 of the Code of Civil Procedure. The issue arising on this point was along with other issues tried as a preliminary issue. The learned trial Judge came to the conclusion that the encroachment complained of by the plaintiffs being a public nuisance and no special damage being proved the plaintiffs were not entitled to maintain the suit complaining of the encroachment without the consent of the Advocate General under Section 91 of the Code of Civil Procedure. The learned trial Judge in this view of the matter dismissed the suit with costs. The plaintiffs thereupon preferred an appeal in the Court of the District Judge Nadiad. The learned Assistant Judge agreed with the learned trial Judge to this extent namely that no special damage was alleged or proved by the plaintiffs but he differed from the learned trial Judge on the main question involved in the determination of the preliminary issue and held following a decision of the Madras High Court in Munusami v. Kuppusami A.I.R. 1939 Madras 691 that an individual member of the public was entitled to maintain a suit for establishing a public right of way and for removal of an obstruction which constituted a public nuisance without obtaining the sanction of the Advocate General under Section 91 of the Code of Civil Procedure and that the plaintiffs were therefore entitled to maintain the suit. The learned Assistant Judge - accordingly allowed the appeal against defendant No. 2 set aside the judgment and decree passed by the learned trial Judge in favour of defendant No. 2 and remanded the suit to the trial Court for being disposed of according to law after hearing the parties on the question as to whether the hanging step constituted an obstruction on the said public street. Defendant No. 2 thereupon preferred the present Second Appeal in this Court.

2. The only question debated before me in this appeal was whether the plaintiffs as members of the public were entitled to maintain the present suit without the consent of the Advocate General under Section 91 of the Code of Civil Procedure. It was common ground between the parties that the suit was filed by the plaintiffs as members of the public who were using the said public street since times immemorial for the purpose of passing and repassing as also for the purpose of taking their carts and that there was no special damage caused to the plaintiffs as a result of the plastering of the wall and the construction of the over-hanging step by defendant No. 2. In the absence of special damage the question was were the plaintiffs entitled to maintain the action, which was essentially an action for removal of encroachment on the said public street. The encroachment on the said public street was clearly a public nuisance and Mr. B.G. Thakore learned Advocate appearing on behalf of defendant No. 2 therefore contended that the plaintiffs were not entitled to maintain an action complaining of such public nuisance unless they obtained consent of the Advocate General under Section 91 of the Code of Civil Procedure. Mr. B.G. Thakore rested this contention on the provisions of Section 91 of the Code of Civil Procedure. Now Section 91 of the Code of Civil Procedure embodies the well-known rule that in the case of a public nuisance no member of the public can maintain an action unless he can show that he has suffered special damage. A public nuisance is not by itself an actionable wrong and it falls within the law of torts only in so far as it may in any particular case constitute some form of tort also as for example by reason of some special and peculiar damage which may cause to an individual. As and when a public nuisance causes some special and peculiar damage to an individual then by reason of such damage, which it causes to the individual it becomes a tort action able at his suit. (See Salmond on Torts Thirteenth Edition 181 Merely because a public nuisance exists a member of the public does not get a right of action for its removal. It is only if some special damage has been caused to him that he gets a cause of action, which he can enforce in a Court of law. This of course does not mean that there is no remedy against a public nuisance. The remedy is provided by Section 91 which declares that in the case of a public nuisance the Advocate General or two or more persons having obtained the consent in writing of the Advocate General may institute a suit though no special damage has been caused for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case. But it must be remembered that a public nuisance may also affect private individual rights and when a public nuisance affects private individual rights the individual member of the public whose rights are so affected can certainly maintain an action for vindication of such rights. In such a case it can be no answer to the individual member of the public seeking to litigate his rights that the act complained of being a public nuisance he cannot maintain the suit but that he must proceed under Section 91 of the Code of Civil Procedure. It is elementary that every right has a remedy and once a right is established it can always be enforced in a Court of law unless of course the statute creating the right provides a special remedy for enforcing it. If therefore any individual and personal rights of h member of the public are violated by an act which constitutes a public nuisance the individual member of the public whose rights are so violated can always maintain an action at law and enforce such rights. To such an action Section 91 of the Code of Civil Procedure cannot afford any answer. It is therefore clear that if in the present case the plaintiffs can show that some right of theirs was violated by the act of defendant No. 2 in plastering the wall and putting up the over-banging step they must in the absence of any other countervailing circumstances be held entitled to maintain the suit.

3. Now Mr. B.G. Thakore on behalf of defendant No. 2 contended that no violation of any rights of the plaintiffs was alleged in the plaint and that it must therefore be held in limine that the suit at the instance of the plaintiffs was not maintainable The argument was that no infringement of any rights of the plaintiffs having been alleged all that was complained of was the existence of a public nuisance and the plaintiffs were therefore not entitled to maintain the suit without the consent of the Advocate General under Section 91 of the Code of Civil Pro cedure. This contention of Mr. B.G. Thakore is in my opinion not well-founded and does not appear to be borne out by the plaint. In the plaint it was specifically alleged by the plaintiffs that the plaintiffs and other Patidars had been passing and repassing and taking their carts on the said public street since times immemorial. The plaintiffs then referred to the encroachment caused by defendant No. 2 and said that as a result of this encroachment irreparable injury had been caused to the plaintiffs to the user of the Dharamshala by the Patidars and to the right of way for bullock carts etc. After setting out this complaint in the body of the plaint the plaintiffs prayed that defendant No 2 should be directed to remove the encroach ment already made and should also be restrained from putting up any construction or over-hanging step which might cause obstruction to the right of way of the plaintiffs. It is therefore clear that the plaintiffs did complain in the plaint of the violation of their individual and personal right of way over the said public street such right of way being not only to pass and repass but also to take their carts over the said public street and sought to enforce it by a mandatory injunction directing removal of the encroachment made by defendant No. 2 and a prohibitory injunction restraining the making of any future encroachment which might obstruct the exercise of such right of way. Since the suit was a suit for enforcement of the individual and personal rights of the plaintiffs it is clear that the suit was maintainable and did not fall within the rule embodied in Section 91 of the Code of Civil Procedure.

4. Mr. B.G. Thakore then contended that in any event there was no obstruction to the right of way claimed by the plaintiffs which would give a cause of action to the plaintiffs to maintain the present suit. This however is a question of fact which still remains to be determined by the trial Court. The trial Court would have to determine whether the plaintiffs have the right of way claimed by them. The right of way claimed by the plaintiffs is a two-fold right namely the right to pass and repass as also the right to take their carts over the said public street. If this right of the plaintiffs is infringed in the sense that the plaintiffs cannot pass or repass or take their carts over the said public street as a result of the encroachment made by defendant No. 2 their individual and personal right would certainly be violated and they would have a cause of action to maintain the present suit. If however notwithstanding the encroachment made by defendant No. 2 the plaintiffs can still pass and repass and take their carts over the said public street it is clear that the plaintiffs would have no cause of action for their right of way would not be violated. The only right of the plaintiffs is the right to make a lawful and reasonable user of the said public street. Such user must necessarily be for the purpose of passing and repassing. Whether such user would also be for the purpose of taking carts over the said public street would be a matter which would have to be investigated by the trial Court. But even if such user extends to taking carts over the said public street the right to make such user cannot include the right to use every part of the public street. The plaintiffs being entitled to the right to make a lawful and reasonable user of the said public street should certainly be able to pass and repass and to take their carts over the said public street. But they cannot claim to be entitled to pass and repass or to take their carts over any particular portion of the said public street. So long as they can pass and repass and take their carts over the said public street notwithstanding the encroachment made by defendant No. 2 it cannot be said that their right is infringed by the making of the encroachment. In talcing this view I am fortified by a decision of a Division Bench of the Bombay High Court in Manilal v. Ishvarbhai (1924) 27 Bom. L.R. 421. In that case an otla was constructed on a public street and a suit for removal of the otla was filed by a member of the public on the ground that it constituted an encroachment on the public street. Macleod C.J. delivering the judgment of the Court held that the suit was not maintainable and the reasons which he gave for taking this view were to use his own words as follows:

The question here is an entirely different one. The plaintiff does not seek for a declaration that he has a right to use a public road nor can he say that such a right has in any way been obstructed. But he wishes to make a claim to a right to pass over the particular portion of the road occupied by the otla though his right to use the rest of the road has not been interfered with. He cannot sustain the suit as he has not been able to show that he is unable to use the read nor can he seek the assistance of the Court to get the otla removed merely because he wants to walk over that portion of the street occupied by the otla unless he proves special damage.

This decision clearly shows that no member of the public has a right to use a particular portion of the public street. His right is to make a lawful and reasonable user of the public street and so long as he can make such user he cannot complain of any encroachment which might constitute a public nuisance. When his individual and personal right is not infringed he has no cause of action for then what remains is merely a public nuisance which is not an actionable wrong to him and the removal of which can be effected only under Section 91 of the Code of Civil Procedure. It will therefore be necessary for the trial Court to find whether the encroachment made by defendant No. 2 is of such a character that it constitutes an interference in the exercise of the right of way claimed by the plaintiffs in the sense that as a result of the encroachment the plaintiffs cannot exercise the right of way at all for it is only then that it can be said that the individual and personal right of the plaintiffs has been violated giving rise to a cause of action in the plaintiffs.

5. Mr. S.N. Patel learned advocate appearing on behalf of the plaintiffs disputed this position and contended for the wider proposition that wherever there is an encroachment in a public street a member of the public is entitled to maintain a suit for its removal irrespective of the fact whether it causes obstruction to him in the exercise of his right of way or not. He relied on the decision of the Privy Council in Manzur Hasan v. Muhammad Zaman 47 Allahabad 151 and argued that this decision supported his contention that a suit for removal of an obstruction on a public street was maintainable at the instance of any member of the public without proof of special damage. Now before I refer to this decision and discuss how far it helps to support the contention urged on behalf of the plaintiffs it is necessary to refer to a very early decision of the Bombay High Court which was adversely commented upon by the Privy Council in this decision. That decision of the Bombay High Court was given in Satku v. Ibrahim 2 Bombay 457 In that case a suit was brought by certain Mussulmans who carried tabuts in procession along a public road. They were disturbed in so doing by Mussulmans of a rival sect. Westropp C.J. and Melvill J. took the view that the plaintiffs were not entitled to maintain a civil suit in respect of such obstruction unless they could prove some special damage to them personally in addition to the general inconvenience caused to the public. The mere absence of religious or sentimental gratification arising from carrying tabuts along a public road was in the opinion of the learned judges not any such particular loss or injury as would be sufficient according to English and Indian precedents to sustain a civil action. The learned Judges proceeded entirely on English authorities which are based on a distinction between proceedings by indictment and proceedings by civil action and applied that distinction to the Indian law for taking the view that a civil action for removal of an obstruction on a public road was not maintainable at the instance of a member of the public. In England it is settled law that in respect of any obstruction on a highway no suit can be maintained by a member of the public the principle being that there can be no individual cause of action in respect of a public injury. If therefore a member of the public is obstructed in exercising his right to make a lawful and reasonable user of the high way he cannot have an individual cause of action and he cannot therefore maintain a civil suit. The remedy in such a case would be by way of an indictment. This legal position in England is the outcome of a procedural distinction which existed in early English law between indictment and civil action and it was this distinction which was applied by the learned Judges of the Bombay High Court in Satku v. Ibrahim (supra). The Privy Council however in Manzur Hasan v. Muhammad Zaman pointed out that this distinction ought not to be applied in India and that the way adopted by the learned Judges of the Bombay High Court of deciding the case was inadmissible. The Privy Council pointed out that where a right of a member of the public is infringed he would certainly have a cause of action which he can enforce by way of a civil suit. In India every community or sect has a right to conduct a religious procession with its appropriate observance through a public street so long as it does not interfere with the ordinary use of the street by the public and is subject to lawful directions by the Magistrate and if this right is in any way obstructed the community or sect aggrieved can maintain a civil suit for a declaration of such right against those who interfere with it. This decision of the Privy Council did not lay down any general principle that whenever there is an obstruction on a public street any member of the public can complain about it. The principle on which it proceeded was that if any obstruction on a public street interferes with the exercise of a right belonging to a community or sect or member of the public such community sect or member of the public can maintain a civil suit for the removal of such obstruction. But if such obstruction does not interfere with the exercise of the right of such community sect or member of the public in the sense that notwithstanding such obstruction such right can be exercised then certainly such community sect or member of the public would have no cause of action to file a civil suit and the public nuisance caused by such obstruction could be remedied only by following the procedure prescribed in Section 91 of the Code of Civil Procedure.

6. I find that the same view which I am taking here has also been taken by a Full Bench of the Bombay High Court in Chandu Sajan Patil v. Nyahalchand Marwadi (1948) 52 Bom. L.R. 214. In that case the question was whether a civil suit was maintainable at the instance of a member of the public for a declaration of a right to take out a nonreligious procession on a public street without proof of special damage. Chagla C.J. as he then was delivering the judgment of the Pull Bench observed that where there is a public nuisance the only remedy in respect of it is that contained in Section 91 of the Code of Civil Procedure but where a public nuisance also affects private and individual rights of a community or sect or member of the public such community sect or member of the public can certainly institute a civil suit for a declaration of such right. The learned Chief Justice held that every member of the public has an inherent right to make a lawful and reasonable user of a public street and if there is any invasion of such right he can maintain a suit for declaration of such right without proof of special damage. This according to the learned Chief Justice was the true ratio of the Privy Council decision in Manzur Hasan v. Muhammad Zaman (supra) and I do not think Mr. S.N. Patel is right when he contends that the Privy Council laid down something more than this namely a wider principle that in every case where there is an obstruction on a public street a member of the public can sue in respect of it.

7. Mr. S.N. Patel also relied on the decision of a single Judge of the Madras High Court in Munusami v. Kuppusami (supra) being the same case which was referred to and relied upon by the learned Assistant Judge in reaching the conclusion that the plaintiffs were entitled to maintain the suit. This decision undoubtedly supports Mr. S.N. Patel and accepts the wider contention urged by Mr. S.N. Patel for my acceptance but with the greatest respect to the learned Judge who decided this case I do not think it lays down the correct law on the point. The advocate for the appellants who appeared before the learned Judge in that case tried to make a distinction between a case in which a man is endeavouring to establish a right to use a public street without interference and a case in which he is endeavoring to remove an obstruction from a public street on behalf of the general public and contended that it was only the former type of case which was governed by the rule laid down by the Privy Council in Munzur Hasan v. Muhammad Zaman (supra). But this contention was not accepted by the learned Judge. The learned Judge held that the rule laid down by the Privy Council dealt generally with the whole class of cases governing the rights of the public to use a public street and that the decision of the Privy Council must be taken to have established that the English rule requiring proof of special damage in cases in which a member of the public prays for the removal of an obstruction to a public street does not apply in India. The learned Judge if I may say so over-looked two important considerations in taking this view. The first consideration was that both in the case before the Privy Council as also in the case before the Bombay High Court which was adversely commented upon by the Privy Council the right sought to be established was the individual and personal right of the plaintiff to conduct a procession on a public street and there was no question in either of those cases of any encroachment made on a public street which constituted merely a public nuisance not interfering with the exercise of such right. The observations of the Privy Council in regard to the decision of the Bombay High Court must therefore be regarded as made in relation to a case where individual and personal right is sought to be enforced by the plaintiff. Secondly the learned Judge failed to appreciate that the principle that a public nuisance does not constitute an actionable wrong at the instance of a member of the public does not depend for its validity on the distinction between indictment and civil action. It must therefore follow that even if this distinction between indictment and civil action has no validity in India the proposition that a public nuisance is not an actionable wrong at the instance of a member of the public cannot be held to be inapplicable in India. As in England so also in India there is no principle of law under which a public nuisance constitutes an actionable wrong unless of course as I have pointed out above it causes any special damage in which event the causing of the special damage constitutes an actionable wrong. If a public nuisance does not constitute an actionable wrong it is difficult to see how a member of the public can maintain an action in respect of it without special damage. But if an individual and personal right of a member of the public is infringed by the public nuisance then of course he would have a cause of action and that was the case both before the Bombay High Court and before the Privy Council. 1 cannot therefore with the greatest respect to the learned Judge who decided the Madras case persuade myself to accept the correctness of the law laid down in it. In this view of the matter it is clear that the plaintiffs as members of the public would be entitled to maintain the suit if the encroachment alleged 10 have been caused by defendant No. 2 is such that it causes obstruction in the exercise of the right of way claimed by the plaintiffs. If on the other hand no obstruction is caused by the alleged encroachment in the exercise of the right of way claimed by the plaintiffs in the sense that notwithstanding the encroachment the plaintiffs can exercise their right of way the plaintiffs would have no cause of action to maintain the suit and in that event the suit would be not maintainable. The question as to the nature of the obstruction caused by the alleged encroachment has however not been decided by the learned trial Judge and the matter will therefore have to go back to the trial Court for the determination of this question before the issue whether the suit is maintainable or not can be disposed of. The order passed by the learned Assistant Judge remanding the suit to the trial Court must therefore be upheld. The suit will go back to the trial Court for being disposed of in accordance with law in the light of the directions and observations contained in this judgment. There will be no order as to costs of this appeal.


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