1. The 1st defendant and the plaintiff are neighbours. The former owns a large piece of land on which he has built cottages which he has let out for rent. For the convenience of the tenants he had put up a latrine in a particular place. This was objected to by the Municipal Council who directed the demolition of it 'and the construction of a proper and substantial one for the use of his tenants in the garden in an unobjectionable place about 25 yards to the west of the latrine complained of.' (Vide Exhibit II). The 1st defendant began to put up the latrine close to the house of the plaintiff. The site was approved of by the Municipal Chairman. The plaintiff complained against it and appealed to the Collector. The Collector passed orders stating that the site for the latrine was chosen by the Municipal Chairman after consulting both the parties and it could not be changed. This suit was brought for a mandatory injunction to remove the latrine as it is a nuisance to the plaintiff. In both the Courts below plaintiff was successful. They held that the statement in the order of the Collector that the Chairman consulted both the parties was wrong. They further held that the latrine was a nuisance. The District Munsif stated :--'The place is an abomination and it is an unmitigated nuisance to the plaintiff.' The learned District Judge says:--' That the erection of the latrine opposite to and at a distance of only 25 yards from her house causes serious discomfort to, and is likely to endanger the health of the inmates of the plaintiff's house.' In the lower Courts the decision was largely based upon Sayad Jafir Sahib v. Sayad Kadir Rahiman I.L.R. (1888) Bom. 634.
2. In second appeal Mr. Sitarama Row has addressed to us a very able and elaborate argument on the question. His main contention was that under Section 207 of the Municipal Act he was bound on the direction of the Municipal Council to put up a latrine, and that otherwise he would have rendered himself liable to be fined for his neglect, and that as he put up the latrine in the place approved of by the Municipal Council through its Chairman, no action lies against him. He also contended that the injunction to remove the building was wrong. Upon the latter question there can be no doubt. All that the plaintiff can complain against is the use of the building as a latrine for that alone constitutes the nuisance. She has no right to object to the building itself, which can be utilised for other purposes which would not cause any nuisance nor injure the inmates of her house. She was not justified in coming to court with a prayer for the removal of the building. To that extent the decree must be modified and as we understand that the walls have been pulled down she should be directed to restore the building at her own expense. The more important question is whether the plaintiff has a right of suit under the circumstances mentioned.
3. Very recently we had to consider the liability of a Taluk Board for damages in the execution of a duty enjoined by the Legislature. (Second Appeal No. 52 of 1918) Krishnamoorthi Aiyar v. The Taluk Board of Mayavaram I.L.R. (1918) M. 331 : 36 M.L.J. 372. We there pointed out that there is a well marked distinction between permissive and obligatory duties; but as the question has been more fully argued on the present occasion, we think it desirable to state succinctly the rules and the limitations applicable to the two branches of duties. If the act is only permitted by the statute to be done, the corporation is practically under the same obligations to respect the rights of others as a private individual. The corporation should so perform the duty as not to injure private rights. See Attorney-General v. The Conservators of the River Thames (1862) 1 Hemming & Millerp and Madras Railway Company v. Zemindar of karvetnagaram (1875) L.R. 1 IndAp 364. Further the duty must be done without negligence and with care. See Khagendranath Mitter v. Bhupendra Narain Dutt I.L.R. (1910) Cal. 296. There is no distinction between misfeasance and non-feasance in such cases. See Canadian Pacific Railway v. Parke (1899) App Cas 535. The position of a corporation which is bound to carry out certain duties is different. In enjoining the performance of them the Legislature contemplates the fact that private individuals will have to submit to a certain amount of infraction of their rights. The principle is that where the legislature directs a duty to be done, it must be deemed to have weighed the balance of convenience between public benefit and private rights and to have laid down that the latter should give way to the former. See Geddis v. Proprietors of Banu Reservoir (1878) 3 App Cas 455, London and Brighton Railway Company v. Truman (1886) 11 App Cas 45, West v. Bristol Tramways Company (1908) 2 KB 14 and Westminster Corporation v. London and North Western Railway (1905) App Cas 426. But the private individual is not altogether without remedy even in such cases. If the work has been done negligently or carelessly the corporation will be liable. See Hammersmith &c.; Railway Company v. Brand (1869) 4 HL 171 and Thompson v. Eccles Corporation and Haedicke v. Friern Barnet Urban Council (1905) 1 K B 110. The corporation will also be liable where it acts maliciously and with a wanton desire to injure private rights. But it is not liable for mere non-feasance. The question now is under which of the two categories we should place the erection by the 1st defendant of the latrine ordered by the Municipality. Section 207 runs 'The Municipal Council may by a notice require, etc.' Mr. Sitarama Rao drew our attention to Section 264(a) which contains the penal clause. He also referred to Section 35 which enables the Governor-in-Council to suspend the operations of the resolutions passed under the Act if the execution of such resolutions is likely to cause obstruction, injury or annoyance to any person lawfully employed or danger to human life, health, or safety. The learned Vakil argued from these provisions that the duty cast upon the Municipality must be regarded as obligatory. We are unable to agree with him, Prima facie the provision of a latrine is for the convenience of the inmates of the place, and has no doubt a bearing on the health of the town. But a direction to build at a particular place without reference to the surroundings cannot be said to be obligatory on the Municipality. Under very similar circumstances it was held in Vernon v. Vestry of St. James, Westminster (1880) 16 Ch. D. 449 to which Mr. Shenai drew our attention, that the Corporation would be liable in damages to a private individual. In that case Malins V.C. stated :--' Therefore, I repeat, if the question before me were simply whether they were right in selecting the place, and whether one place or another was better, I should be bound to decide that the vestry are the sole Judges as to what the situation should be. But great as the powers of the vestries under the Act are, they are not absolute, and vestries are, like all other public bodies, liable to be controlled by this Court if they proceed to exercise their powers in an unreasonable manner, whether they are induced to do so by improper motives or from error of judgment.' Further on the Vice Chancellor says : 'It is clear that the Court has power to entertain such suits, and that these vestries must not execute those powers in such a manner as to create a nuisance when the object of the Act is to remove nuisance.' The case was taken up to the Court of Appeal. Lord Justice James said :--' If the erection in question were made by a private land-owner on his own soil and freehold, it would seem to be beyond all question a nuisance so grave and so serious that the neighbours would be entitled to apply to the Court for an injunction to restrain it. The question is whether the fact that the thing is done, not by a private owner on his private soil, but by the parish vestry on a place that is said to be a public highway, makes any difference.' The learned Lord Justice then quoted Section 6 which is very similar to Section 207 of the District Municipalities Act and proceeded:--'Prima facie nobody is authorized to commit a nuisance and nobody is to be held so authorized under an Act of Parliament unless it appears from express words or by necessary implication that the act was to be done or might be done notwithstanding its tending to the creation of a nuisance.' Lord justice Cotton said :--'Therefore the mere fact that an urinal is authorized to be erected does not necessarily or by necessary implication give parliamentary power to do it if it is a nuisance.' Lord Justice Lush said:--'That if the inconvenience is only to the public and there is no special injury to a particular individual no action would lie.' This case is strong authority for the position that although the Municipal Act has authorized the Council to direct the location of latrine in a particular place, the work should not be carried out so as to affect injuriously private interests more than is necessary. In Sellors v. Mattock Bath Local Board 14 Q.B.D. 9 the same principle was enunciated. In Rapier v. London Tramways Company (1893) 2 Ch. 588 also this principle was affirmed. It seems to us therefore that in the contemplation of the Legislature the power given to the Municipality to supervise the erection by a private individual of a latrine must be regarded as a permissive obligation which should be exercised without unnecessary detriment to private rights and without creating unreasonable nuisance. The evidence of the Medical Officer is to the effect that all latrines in Mangalore are to a certain extent a nuisance. This being so, their erection must be detrimental to some private right.
4. The learned Vakil for the appellant further relied upon the fact that by Section 278 of the Act, compensation is payable by the Municipal Council for any damage caused by the exercise of its powers and hence the plaintiff is not entitled to any further remedy from the defendant in this suit. In the case already referred to namely Vernon v. Vestry of St. James, Westminster (1880) 16 Ch. D. 449. Lord Justice James referred to the clause which provided for compensation and held that the plaintiff was not confined to that remedy alone. In Attorney-General v. Lewes Corporation (1911) 2 ch. 495 it was held that none of the provisions relating to remedies in the Act would interfere with the common law rights of injured parties. We do not think the decision in West v. Bristol Tramways Co. (1908) 2 K.B. 14 is any authority for the proposition contended for by the learned Vakil for the appellant.
5. Moreover this is not a suit against the Corporation for any injunction or for damages although the Municipal Council has been impleaded as a defendant. The suit is primarily against the 1st defendant for what he has done on his premises. It would be unreasonable to expect' that the Municipal Act should provide for reliefs as against private individuals.
6. We are therefore of opinion that there is no substance in this contention. In the result our conclusion is that the direction to pull down the whole building was wrong and that there should be an enquiry as to whether the defendant could have located the latrine in such a place as not to cause unreasonable injury to the plaintiff. Even should the defendant be obliged to remove some of the cottages in order that a convenient place may be found for erecting a latrine without causing inconvenience to the plaintiff he should be required to do so. Therefore we must ask the District Judge to return a finding on the following issue:
Was the latrine erected by the defendant in a reasonable manner so as not to infringe unnecessarily the rights of plaintiff.
7. Six weeks for finding and seven days for objections.
[In compliance with the order contained in the above judgment, the District judge of South Kanara submitted that the latrine was not erected by the defendant in a reasonable manner so as not to unnecessarily infringe the rights of the plaintiff].
8. This Second Appeal coming on for final hearing after the return of the finding of the Lower Appellate Court upon the issue referred by this Court for trial, the Court delivered the following
9. We accept the finding and subject to the modification indicated in our remand order, the second appeal is dismissed. Each party to bear his own costs throughout.