P.R. Gokulakrishnan, J.
1. The Madurai Municipal Council through its Executive Authority the Commissioner who is the first defendant in the suit is the appellant before this Court. The respondents herein were served but they remain absent. The suit filed by the plaintiffs 1 to 5 was for a mandatory injunction directing the defendants, i.e., the Madurai Municipality and also the State of Madras through the District Collector, Madurai to remove the latrines and septic tanks in T.S. No. 2003/1-A in west Madurai and keep the said site as a road and also for a permanent injunction restraining the Municipality and its servants from dumping rubbish in the said road by the side of the house sites of the plaintiff. It is unnecessary for me to deal elaborately with the facts of the case. Suffice it to say that the Municipality acquired the portions from the plaintiffs for the purpose of having a scheme road. In that portion acquired, the Municipality has constructed a public lavatory with septic lakhs in the portion marked in the plaint plan. The plaintiffs object to the construction of the latrine and the septic tanks on the ground that since the acquisition is for forming a public road, the Municipality should not have constructed the public latrines and the septic tanks, that the construction of the public lavotary and septic tanks creates actionable nuisance and, as such, they have to be removed and that the construction of those latrines and the septic tanks restricts the access of the plaintiffs to the public road. Apart from this, the plaintiffs have stated that the Municipality is dumping rubbish on the site, and as such, it should be stopped.
2. As far as the Municipality is concerned, which is the main contesting defendant in the suit, it is submitted that the road has been formed as per the acquisition and, while forming the road to provide for the public convenience, the Municipality has constructed the public latrines and the septic tanks. It is also stated that there is absolutely no nuisance as alleged by the plaintiffs and that it does not obstruct the plaintiffs access to the road. The Municipality has also denied the dumping of rubbish as stated by the plaintiffs in the suit.
3. The learned District Judge found that there is no deviation in the object and purpose of acquisition, that there is a substantial compliance with the objects of acquisition in that a portion has been used for the formation of the road; the user of the balance portion for the construction of the latrine and the septic tanks cannot be regarded to be a deviation from the object of the acquisition, that there is no question of lack of sanction from the Government to put up a latrine in view of the subsequent ratification and that there is no question of the Municipality dumping the rubbish as alleged by the plaintiffs. But the learned District Munsif found that there is an actionable nuisance in having the latrines and the septic tanks in the place alleged by the plaintiffs and, as such, the suit has to be decreed.
4. Aggrieved by the judgment and decree of the trial Court, the Municipality preferred an appeal to the learned Principal Subordinate Judge of Madurai. Along with the appeal, the Municipality also filed an interlocutory application for permission to file additional written statement. In the additional written statement it wanted to raise a plea that the suit is barred under Article 113 of the new Indian Limitation Act, 1963. The article provides a period of 3 years for necessary relief. The Municipality wanted to1 have it that the latrines were put up on 8th September, 1962. It, therefore, wanted to raise the plea that the suit, filed after three years of the completed part, is barred by time. It then wanted to raise the plea that the plaintiffs were aware of the construction and stood by the construction of the latrines and the septic tanks and even acquiesced in the construction by not taking immediate action. The Municipality, therfore, wanted to raise a further contention that the mandatory injunction cannot be granted. The Lower Appellate Court dismissed the petition to-file additional written statement and against that order, the appellant herein has preferred the Civil Revision Petition No. 1073 of 1970. The Lower Appellate Court has also dismissed the appeal after observing that the existence of the latrines and the septic tanks will also provide a permanent source of nuisance to the prospective owner of the buildings, that are to come up on the site west of the septic tanks and the latrine from health and sanitation-point of view as well.
5. Aggrieved by the judgment and decree of the Lower Appellate Court, the Municipality has preferred the above second appeal and also the Civil Revision Petition. Mr. Alagiriswami, the learned Counsel for the Madurai Municipality, laid stress on the point that the Courts below have given a finding as regards actionable-nuisance without any evidence on record. I have been taken through the judgments of the Courts below. Both the Courts below proceed more on presumption rather than the actual state of affairs in coming to the conclusion that the existence of the latrines and the septic tanks are actionable nuisance. It is clear from the facts of this case that the construction of the latrines and the septic tanks were started on 8th July, 1962 and, as per the appellant herein, the same were completed on 8th September, 1962. The decision as to whether a latrine has to be constructed in that particular plan is completely in the subjective satisfaction of the Municipality concerned and it is not for the Court to assess and come to a different conclusion as to the advisibility of the place in which the latrines have been constructed by the Municipality concerned. No doubt, the Court has ample powers to deal with the question of nuisance and other legal issues provided the parties agitating their claim, in that respect, prove the same. Mr. Alagiriswami, the learned Counsel for the appellant, correctly pointed out that that there is absolutely no evidence on the side of the plaintiffs to prove that the existence of the latrines and the septic tanks are nuisance to the people in that locality or a to the plaintiffs. He also correctly pointed out that the reasoning of the Courts below, to come to the conclusion that it is an actionable nuisance, is only a presumption and assumption without any evidence on record to that effect. I am completely, in agreement with the arguments advanced by the learned Counsel for the appellant herein.
6. There is absolutely no ground for the Court below to grant the relief prayed for by the plaintiffs inasmuch as the Courts below found that the building up of the latrines and the septic tanks by the Municipality cannot be construed, as outside the scope and purpose for which the lands were acquired.
7. In these circumstances, the second appeal is allowed and the suit filed by the plaintiffs is dismissed. There will be no order as to costs in this second appeal.
C.R.P. No. 1073 of 1970.
8. In view of my decision in the above second appeal, I do not think that it is necessary for me to go into the question involved in the Civil Revision Petition. Further, I do not find any error if jurisdiction involved in this civil revision petition for me to entertain the same. Hence this civil revision petition is dismissed. There will be no order as to costs in this civil revision petition.