B.K. Mukherjea, J.
1. This appeal is on behalf of the plaintiff, and it arises out of a suit commenced by him for removal of an alleged encroachment, made by defendant 1, the District Board of Nadia, upon a public thoroughfare in front of plaintiff's premises. The public road is shown as plot No. 203 in the C.S. Map of Kriahnagar. The; defendant District Board have their office in plot No. 206. They put up a wire fencing on the southern side of the office premises and thereby encroached upon a portion of the public road on the immediate south of which stands the residential house of the plaintiff. The Krishnagar Municipality which was made a party defendant, did not take any steps against the District Board, and the plaintiff brought this suit on the allegation that his rights as a rate-payer and as a member of the public were infringed by the encroachment of the District Board, which deprived him of the use of the full width of the public road.
2. Both the Courts below have dismissed the plaintiff's suit. It has been held by the Sub-Judge who heard the appeal, that there has been an encroachment made by defendant 1 upon the public road to the extent of 2 cottas 5 ch. as found by the pleader commissioner, but the suit was dismissed on the ground that it was not maintainable at the instance of the plaintiff without proof of special damage. The Sub-Judge further expressed his opinion that the proper course for the plaintiff to follow was to bring a representative suit in conformity with the provisions of Order 1, Rule 8, Civil P.C., and if a suit of that character was brought the necessity of proving special damage might have been obviated. The propriety of this decision has been challenged before us in this second appeal and Mr. Basu who appears for the plaintiff-appellant has contended before us that the decision of the Judicial Committee in Manzar Hasan v. Muhammad Zaman has now placed it beyond doubt, that it is not necessary for an individual member of the public to allege and prove special damage to sustain a suit commenced by him in respect of a public nuisance. It has further been argued that the lower appellate Court was wrong in holding that the remedy of the plaintiff lay in suit brought under Order 1, Rule 8, Civil P.C., and his last contention is that in any event, on the facts admitted and proved the Courts below ought to have held that the plaintiff made out a case of special damage.
3. I will examine these contentions one after another. It is not disputed that in the present case the plaintiff seeks declaration and injunction in respect of a public nuisance. According to the findings of the Courts below, there was an encroachment by the defendant District Board, upon the public road, which had the effect of withdrawing a part of the highway from the use of the public. Under the English Common Law, a public nuisance is an indictable misdemeanour; criminal proceedings are also sanctioned by particular statutes in particular oases. It is, however, a settled principle of English law, which has come down from very ancient time that a private individual has no right of action in respect of a public nuisance, unless he can show that he has sustained some special damage over and above that inflicted upon the public at large; the object being to avoid multiplicity of litigation Iveson v. Moore (1699) 1 Ld. Baym 486; Winterbottom v. Lord Derby (1867) 2 Ex. 316 and Vandar Pant v. Mayfair Hotel Co. (1930) 1 Ch. 138. This rule regarding special damage was followed by the different High Courts in India long before Section 91 came into the Civil Procedure Code. As early as in 1869, Sir Barnes Peacock C.J., thus laid down the law in Baroda Prosad v. Gorachand ('69) 12 W.B. 160:
We think it is clear that this suit will not lie. The plaintiff sues defendants for obstructing a public road without showing that he has sustained any particular inconvenience in consequence of the 1 obstruction. If he can maintain this suit, any member of the public can do so, and the defendant may be ruined by innumerable actions by persons who have not sustained a farthing of damage.
4. A Full Bench of this Court affirmed this view in Raj Koomar Singh v. Sahebzada ('77) 3 Cal. 20 (F.B.) and this has been followed since then in a large number of cases. We may refer by way of illustrations to the cases in Raj Narain v. Ekadasi (1900) 27 Cal. 793, and Batiram v. Siva Ram ('21) 8 A.I.R. 1921 Cal. 217 The same view was accepted by all the other High Courts in India, vide Bhawan Singh v. Narttam Singh ('09) 31 All. 444; Ram Chandra v. Joti Prosad ('11) 33 All. 287; Hussain Saheb v. Narasinhappa ('12) 16 I.C. 962; Gehanaji Kes Patil v. Ganpati Lakshuman ('7) 2 Bom. 469n and Md. Din v. Mt. Atirajo Kuer ('31) 18 A.I.R. 1931 Section 91, Civil P.C., introduced a change in the procedure; and under this section the Advocate-General or two or more persons with his consent may institute a suit in respect of a public nuisance without any proof of special damage. It is obvious that in this procedure no multiplicity of litigation can be apprehended. So far as suits by private individuals are concerned, Sub-section (2) expressly leaves the old law intact.
5. It will be necessary now to refer to another class of cases which has been a frequent subject of litigation in India, and which relate to obstruction of the right to use highways for processions by members of rival sects or communities. In such cases what usually happens is, that a group of persons belonging to a particular sect or religion who claim a right to go in procession along a public highway are obstructed by a rival party professing the same or a different faith. In the majority of these cases, there is an order by a Magistrate made under the Criminal Procedure Code, restraining a person or group of persons from using a public road in a particular way, with a view to prevent breach of public peace. If the person or persons thus obstructed institute a suit for establishment of their right to use the highway, the question arises whether such a suit is maintainable without proof of special damage. The Bombay High Court in Satku v. Ibrahim Aga ('78) 2 Bom. 457 held that even in such a ease, to sustain a suit by a body of persons who were obstructed in the use of a highway, it was necessary to prove special damage. Sir Michael Westropp C.J. in an elaborate judgment reviewed the English authorities on this point, and came to the conclusion that a private person cannot bring a suit for interference with a right which he enjoys merely as a member of the public unless he has individually suffered damage. It may be noted that in this case there was an order by the Magistrate prohibiting the plaintiffs from using the road for the purpose of carrying tabuts in procession but that was considered insufficient to furnish a cause of action to the interdicted party. This decision was followed in Kazi Sujaludin v. Madhav Das. ('94) 18 Bom. 693. In Baslingappa v. Dharmappaa ('10) 34 Bom. 571, there was a suit brought by the plaintiffs on behalf of themselves as well as other members of a religious sect to have a declaration of their right of marching in procession with a car along a particular public road to a certain temple and for an injunction restraining the defendants from interfering with the plaintiffs. The defendants denied the plaintiff's right. The Courts below dismissed the suit on the ground that the road being a public road, the plaintiffs could not maintain the suit unless special damage was shown and proved. The decision was reversed in second appeal by Soott C.J. and Batchelor J. It was held that the suit was not for removal of a public nuisance but for declaration of the right of an individual community to use the public street. The authorities relied upon in Satku v. Ibrahim Aga ('78) 2 Bom. 457, were not therefore applicable to such cases. In support of the view they took, the learned Judges relied upon a decision of the Madras High Court in Sadagopachariar v. Rama Rao ('03) 26 Mad. 376.
6. In the Madras High Court the procession cases were from the beginning treated on a different footing, though even here the decisions cannot be said to be by any means uniform. The case in Partha Saradi v. Chinnakrishnan ('82) 5 Mad. 304, is one of the earliest cases in point, where it was held that the right to conduct religious processions in the public road was a right inherent in every person provided he did not invade the right of others or cause a public nuisance and the obstruction of the right would enable the aggrieved person or persons to seek his remedy in a Court of law. The same view was taken in Sadagopachariar v. Rama Rao ('03) 26 Mad. 37, and no question was raised in any of these cases regarding the necessity to prove special damage. The question was raised in Kandaswami v. Subaroya ('09) 32 Mad. 478. It was held there that though an action for obstructing a procession may be maintained without proof of special damage, yet when an illegal order of the Magistrate has been procured by the defendants restricting such procession a suit to declare the right to carry such procession is sustainable without such proof, the cause of action being the improper order so obtained by the defendants. The identical matter came up for consideration again before a Full Bench of the Madras High Court in Velan Pakkiri v. Subbayan ('19) 6 A.I.R. 1919 Mad. 674 and one of the questions referred to the Full Bench was : 'Can a person or body of persons who claim a right to go in procession along a public highway bring a declaratory suit to establish that right against a person who threatens to obstruct it without allegation or proof of special damage?'
7. This question was answered in the affirmative. Wallis C.J. in course of his judgment after referring to the case in Satku v. Ibrahim Aga ('78) 2 Bom. 457 observed as follows:
The obstruction in the English cases cited consisted of interference with the surface of the highway which interfered with the right of the public to pass and repass freely. The same principle would no doubt apply if the defendants obstructed the 1 public by assembling on the highway for their own purposes, as for the purpose of holding a market. That also would be a public nuisance and the rule as to special damage would apply, If however the defendants assembled to prevent the. plaintiffs from exercising their lawful right to pass along the highway in a particular manner, that would appear not to be a case of public nuisance.
8. This was the state of law when the case in Manzar Hasan v. Muhammad Zaman came up before the Judicial Committee. This was a procession case of exactly the same type as mentioned above. The plaintiffs-appellants represented the Shiah community of Aurangabad, and the defendants were the representatives of the Sunni community in that town and the former instituted a suit against the latter for a declaration that they were entitled to stay and perform the 'matam' in a circle at the public thoroughfare at the back of the newly built Juma Musjid and that the defendants had no right to offer obstruction. They further prayed for an injunction restraining the defendants from obstructing them while they were acting in the manner stated above. The trial Court gave the plaintiffs a partial decree; on appeal the suit was dismissed by the Allahabad High Court. The plaintiffs then appealed to the Judicial Committee. Their Lordships allowed the appeal and restored the order of the District Judge with some modifications. One of the questions raised before the Judicial Committee was whether a civil suit would lie against them who would prevent a procession with its observances. Lord Dunedin who delivered judgment observed at the outset that there was a conflict of decisions on the point between the Bombay and Madras High Court, and that the Calcutta view supported Madras. He then referred; to the facts and decision in Sadagopachariar v. Rama Rao ('03) 26 Mad. 37 and pointed out that the judgment in that case proceeded entirely on English authorities which lay down the difference between proceedings by indictment and by civil action. Then there occurs the following passage in the judgment:
In their Lordships' decision such a way of deciding the case was inadmissible. The distinction between indictment and action in regard to what is done on a highway is a distinction peculiar to English law and ought not to be applied to India.
9. Their Lordships then expressed their approval of the decision of the Bombay High Court in Baslingappa v. Dharmappaa ('10) 34 Bom. 571 and quoted its headnote which was to this effect: 'On second appeal by the plaintiffs held, reversing the decree and allowing the claim that the suit was not for the removal of a public nuisance but for a declaration of the right of an individual community to use a public road.
10. Reference was then made to the Madras cases where in granting injunction or declaration in matters like this no idea of special damage was entertained other than the obstruction of the procession itself. In conclusion their Lordships said that the view of the Madras High Court was right and that the Bombay judgment, meaning the judgment in Satku v. Ibrahim Aga ('78) 2 Bom. 457 was wrong. In my opinion, the decision in Manzar Hasan v. Muhammad Zaman cannot be interpreted to mean that the rule of law requiring proof of special damage in oases where a member of the public prays for removal of a public nuisance, does not apply in India. Their Lordships, as has been stated above, expressly approved of the decision in Baslingappa v. Dharmappaa ('10) 34 Bom. 571 and that conclusively shows that in their Lordships' opinion a suit by one party who wants to use the highway in a particular way against a rival party who would obstruct them in the use of the same is not a suit relating to public nuisance. The essence of a public nuisance is that it causes damage, injury or annoyance to the public or the people in general. An obstruction which aims at preventing only a particular class of persons from using the highway in a particular manner does not and cannot amount to public nuisance. This was exactly the view taken in Baslingappa v. Dharmappaa ('10) 34 Bom. 571 and by Wallis J. in Velan Pakkiri v. Subbayan ('19) 6 A.I.R. 1919 Mad. 674.
11. The Bombay High Court was wrong in applying the rule of special damage in a case like this and that is why their Lordships disapproved of the decision in Satku v. Ibrahim Aga ('78) 2 Bom. 457. The Madras High Court, as has been said already, did apply the rule of special damage where the obstruction on the highway amounted to public nuisance, and their Lordships could not have overlooked the series of cases when they pronounced the Madras view to be right. It is true that their Lordships made a general observation that the distinction between indictment and action in regard to what is done on a highway is a distinction peculiar to English law and ought not to be applied to India, but this observation must be taken with reference to the class of cases their Lordships were dealing with. It is significant that their Lordships did not make use of the expression public nuisance in this passage and the observation obviously implies that to this particular kind of disturbance on the highway which was presumably unknown in England, the English law was not applicable. That the question of special damage is not irrelevant to a suit by a private individual relating to obstruction on a public highway will be clear from the observations of the Judicial Committee, in the later decision in Mahraja Mansingh v. Arjunlal ('37) 24 A.I.R. 1937 P.C. 299 at page 361 of the report, there oocurs the following passage:
They express no opinion upon the question whether a permanent structure with pillars resting upon the highway, is or is not an obstruction, or is an inappreciable obstruction to the highway, or is such as could be complained of by the Advocate-General or others with his consent on behalf of the public, or by a member of the public showing special damage to himself.
12. The last clause is significant. The rule of special damage in suits relating to public nuisance has its origin in the desire to avoid multiplicity of litigation and so far as that ground is concerned there is no difference between the conditions in England and those in India. I am not unmindful of the fact that in some recent decisions, the view has been taken that the pronouncement of the Judicial Committee in Manzar Hasan v. Muhammad Zaman has established that the rule requiring proof of special damage in cases in which a member of the public prays for removal of an obstruction to a public way does not apply to India. There are three decided cases which seem to have taken this view. One is a decision of our Court and is to be found in Mandakini Debee v. Basanta Kumari : AIR1933Cal886 The other two are of the Lahore and Madras High Courts respectively vide Municipal Committee Delhi v. Mohammad Ibrahim ('35) 22 A.I.R. 1935 Lah. 196 and Munusami Chetti v. Kuppusami Chetti ('39) 26 A.I.R. 1939 Mad. 691.
13. So far as the Calcutta case is concerned, it appears from the reports that the obstruction complained of was in respect of access to the private property of the plaintiff. Mallik J. was definitely of opinion that special damage was proved by the plaintiff, and he did not advert to the Privy Council case at all. Jack J. indeed interpreted the Privy Council decision to mean, that no special damage was necessary to be proved in such cases, except what resulted from the obstruction itself, but he too found expressly that the plaintiff did suffer special damage as she was unable owing to the obstruction to carry large articles into her house. In my opinion, the observation of Jack J. cannot rank more than an obiter, and it is not necessary for us to refer this matter to a Full Bench. This case in Mandakini Debee v. Basanta Kumari : AIR1933Cal886 was followed by the Lahore High Court in the case referred to above. The learned Judges did not discuss the law at all. They referred to a decision of the Chief Court of Punjab where special damage was held to be necessary and as that case was based upon Satku v. Ibrahim Aga ('78) 2 Bom. 457, which was disapproved by the Privy Council, the very foundation of the doctrine according to the learned Judges was taken away. In the Madras case the decision is that of Wadsworth J. sitting singly. With all respect to the learned Judge I must say that the view taken by him is not borne out by the judgment of the Privy Council in Manzar Hasan v. Muhammad Zaman . My conclusion therefore is that the present case is not governed by the decision of the Judicial Committee in Manzar Hasan v. Muhammad Zaman . As the plaintiff seeks relief in respect of a public nuisance, and the suit is not brought in conformity with the provisions of Section 91(1), Civil P.C., it is bound to fail unless special damage is shown. The view we have taken is supported by the decision of the Patna High Court in Ramghulam v. Ram Khelawan ('37) 24 A.I.R. 1937 Pat. 481.
14. I will now advert to the two other points raised by Mr. Basu in the appeal. I agree with him that the Court below was not right in holding that the plaintiff could avoid the necessity of proving special damage, if he had brought the suit in a representative capacity. Order 1, Rule 8, Civil P.C., as is well established, is a purely enabling section. It entitles under certain circumstances only some of the interested persons to bring a suit on behalf of all, but it does not force one to represent many if his action is maintainable without the joinder of these persons vide Baiju Lal v. Bulak Lal ('97) 24 Cal. 385; Ramghulam v. Ram Khelawan ('37) 24 A.I.R. 1937 Pat. 481. If it is necessary to prove special damage in suits by private individuals the necessity is not obviated by bringing the suit under Order 1, Rule 8, Civil P.C. If the decision in Bir Bikram Kishore v. Comilla Municipality ('35) 62 Cal. 692 supports the view taken by the Sub-Judge I must respectfully dissent from it. The question is not really material for our present purposes. The last point raised by Mr. Bose is to the effect that on the facts admitted and found in this case the plaintiff can be taken to have proved special damage. We do not think that we can accept this contention as sound. There was no allegation of special damage in the whole body of the plaint, and there was no evidence adduced on the point. In para. 8 of the plaint, the appellant made it quite clear that he was suing as a member of the public and had no special grievance of his own. The result therefore is that the appeal fails and is dismissed. We make no order as to costs.
15. I agree. The question which arises for decision in this appeal is whether a private individual can maintain an action in respect of a public nuisance without proving special damage. It would seem from the earlier decisions that the law was well settled that such an action did not lie but certain recent decisions both of this Court and of other High Courts seem to lay down that the well-known principle of the English law of Torts that no action lies in respect of a public nuisance unless the plaintiff has suffered some particular and peculiar damage different from that suffered by the general public by reason of the nuisance is not applicable in India. The facts of the case which have led to this appeal are as follows : The plaintiff Surendra Kumar Basu has his house on a public road belonging to the Municipality of Krishnagar in the District of Nadia. He alleges that the District Board of Nadia has encroached on this road by putting a wire fencing in front of the District Board Office which also abuts on the road and states that by reason of this encroachment his right as a rate-payer and as a member of the public to the full use of the road have been infringed. Both the Courts below have dismissed the suit. The learned Subordinate Judge on appeal has found that there has been an encroachment on the Municipal Road by the District Board but? that no special damage has been pleaded or proved. He held that as this was a case of a public nuisance a suit by an individual was not maintainable without proof of special damage. He held further that if the suit had been brought by the plaintiff in a representative capacity in accordance with the provisions of Order 1, Rule 8, Civil P.C., then it would have succeeded in spite of the fact that there was no special damage and that as it was not framed in accordance with these provisions the order of the Munsif dismissing the suit must be upheld.
16. Mr. Bose on behalf of the appellant contends that the learned Subordinate Judge has erred both in the view that proof of special damage was necessary and also in holding that the suit should have been brought in accordance with the provisions of Order 1, Rule 8. I shall deal first with the second proposition laid down by the learned Judge that this suit is liable to be dismissed because it has not been framed in accordance with the provisions of Order 1, Rule 8. Mr. Bose's contention is that if a person is entitled to sue under Order 1, Rule 8 in a representative capacity he must be equally entitled to sue individually on his own behalf. Order 1, Rule 8, he says, is merely an enabling section. This view appears to me to be sound and finds support in this decision in Baiju Lal v. Bulak Lal ('97) 24 Cal. 385. If the learned Judge be correct in his view that a suit framed in accordance with the provisions of Order 1, Rule 8 is maintainable in respect of a public nuisance without proof of special damage then he certainly should have decreed the present suit even though it has been instituted by the plaintiff on his own behalf only. But I am unable to accept this proposition. Once, it is held that an individual has no right of action in respect of a public nuisance without proof of special damage, I fail to see how the adoption of the procedure laid down in Order 1, Rule 8, can vest him with such right. Order 1, Rule 8 says:
Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested.
17. The rule presupposes that each one of the numerous persons by himself has a right of suit and for the purposes of convenience permits one or more of such persons to sue on behalf of the others after complying with certain formalities. If a person has not in himself the right to sue how can he be permitted to sue not only on behalf of himself but also on behalf of a number of others who suffer from the same disability as himself? In my view the learned Judge has misconceived the scope of Order 1, Rule 8. It is only an enabling rule formulated for the purposes of convenience; it does not vest a right of suit in any person or group of persons but merely enables a person who has a right of suit in common with several others to sue on behalf of all. Iteliance was placed by the learned Judge on the case in Bir Bikram Kishore v. Comilla Municipality ('35) 62 Cal. 692. The suit was one for damages for the obstruction of a public road. Nusim Ali J., held that in the absence of special damage such a suit did not lie as the plaintiff was hit by Section 91, Civil P.C. He then went on to make the following observation:
The plaintiff in the present suit being one of the members of the public, is equally affected by the obstruction with the other members of the public. He has suffered no special damage. His claim is not in respect of a wrong to him individually. He is one of the numerous persons affected by the obstruction and therefore having the same interest in the matter. Consequently the proper course for him was to bring a representative suit, in conformity with the provisions of Order 1, Rule 8, Civil Procedure Code.
18. The latter observation which is obiter certainly lends support to the view taken by the learned Subordinate Judge. With great respect to the learned Judge, lam unable to conour in the view set out in the above case for the reasons already given by me. I next come to the other proposition stated by the learned Judge viz., that in the case of a public nuisance no civil action lies by a member of the public unless he has suffered special damage by reason of the nuisance. The law in England is well settled on this point. It is thus stated by Lord Halsbury:
A private individual may bring an action in his own name in respect of a public nuisance when, and only when, he can show that he has suffered some particular direct and substantial damage over and above that sustained by the public at large, or when the interference with the public right involves a violation of some private right of his own, or when a statute has given him a special protection or benefit which is being invaded. (Halsbury's Laws of England 1912 Edn. Vol. 21 page 553 para. 950).
19. In the case of torts, there being no Indian Statutory Law, the Indian Courts have always adopted the English Common Law as being consonant to justice, equity and good conscience Satish Chandra Chakravarti v. Ram Doyal De ('21) 8 A.I.R. 1921 Cal. 1 at pp. 408 and 409. They have departed from the English Law only when a particular rule was unsuitable to local conditions. The English rule regarding the right of action of private individuals in respect of a public nuisance has been adopted by this Court in a number of cases. In Baroda Prosad v. Gorachand ('69) 12 W.B. 160 Sir Barnes Peacock lays down in clear terms that a private individual cannot sue in respect of a public nuisance when the nuisance causes him no inconvenience beyond that which was sustained by every other member of the public. This was a case regarding the obstruction of a public road. This decision was followed in Raj Narain v. Ekadasi (1900) 27 Cal. 793 where it was held that when the plaintiff has not succeeded in proving special damage he cannot succeed in a suit brought with respect to an obstruction on a public, road. In Raj Koomar Singh v. Sahebzada ('77) 3 Cal. 20 (F.B.) the question arose whether a suit lay for the removalof an obstruction on a public road even when there was special damage. The question was referred to the Full Bench as there were certain decisions which held that in no circumstances would such a suit lie and that the criminal Courts alone had jurisdiction in such matter. The Full Bench said:
We are of opinion that as the obstruction in this case has caused special injury to the plaintiff, the civil Court was perfectly justified in directing it to be removed.
20. The question whether a suit would lie in the absence of special damage was not expressly raised or decided but it seems that the Full Bench assumed that such a suit would not lie. In the case in Chuni Lall v. Ram Kisen Sahu ('88) 15 Cal. 460 (F.B.) the Full Bench at p. 467 says this:
If any one obstructs a public highway he may be liable to a criminal charge of nuisance under Section 283, Penal Code, or of mischief under Section 431, if the circumstances be such as to sustain either of these charges. Any one who sustains special injury by reason of an obstruction to a highway may bring a suit, claiming damages, and any other appropriate relief.
21. Here also it is clear that the Full Bench was of opinion that special damage was necessary. Mr. Bose contends that these decisions are no longer good law and refers to the decision of the Judicial Committee in Manzar Hasan v. Muhammad Zaman which he interprets as enunciating the rule that the English doctrine of the necessity of proving special damage in actions in respect of a public nuisance has no application in India. He relies further on the cases in Mandakini Debee v. Basanta Kumari : AIR1933Cal886 , Munusami Chetti v. Kuppusami Chetti ('39) 26 A.I.R. 1939 Mad. 691. and Municipal Committee Delhi v. Mohammad Ibrahim ('35) 22 A.I.R. 1935 Lah. 196 wherein he says this interpretation of the judgment of the Privy Council was adopted. In my opinion, the Privy Council laid down no such rule. The suit was instituted by the Shiah Sect against the Sunni Sect for a declaration that the Shiahs had the right to go in procession reciting the 'Matam' along a highway passing behind a mosque used by the Sunnis. The Matam is a ceremony performed during the Mohurrum and it consists in the processionists stopping and bewailing the death of Hasan and Hossain. The Sunnis had obstructed such a procession, hence the suit. The Subordinate Judge decreed the suit declaring the plaintiffs' right to go in procession in the manner claimed by them along the road but added that the right was exercisable subject to the order of the local authorities regulating traffic. He found that no damage had been proved. On appeal the High Court of Allahabad dismissed the suit. The learned Judges held that a community had the right to go in procession through a public street subject to the control of the Magistrates and to the use of the public thoroughfare in a reasonable way but they were of opinion that the right claimed in the suit was one to block the highway absolutely in an unreasonable manner and that therefore the suit could not succeed. On appeal the Judicial Committee reversed the decision of the High Court and restored that of the Subordinate Judge with certain modifications. In the course of their judgment their Lordships put themselves the following question. Does a civil suit lie against those who would prevent a procession with its observances'? and proceeded to answer it as follows:
Here there is an obvious discrepancy between Bombay and Madras, and Calcutta upholds Madras. The leading Bombay authority is Satku v. Ibrahim Aga ('78) 2 Bom. 457: Westropp C.J. and Melvill J. This was a suit by certain Mussulmans who carried tabuts in procession along a public road. They were disturbed in so doing by Mussulmans of a rival sect. The headnote setsforththe judgment accurately. 'Held, in special appeal, that the plaintiffs could not maintain a civil suit in respect of such obstruction unless they could prove some damage to themselves personally in addition to the general inconvenience occasioned to the public. The mere absence of the religious or sentimental gratification arising from carrying tabuts along a public road is not any such particular loss or injury as would be sufficient, according to English and Indian precedents, to sustain a civil action.' The judgment really proceeds entirely on English authorities, which lay down the difference between proceedings by indictment and by civil action.
In their Lordships' opinion such a way of deciding the case was inadmissible. The distinction between indictment and action in regard to what is done in a highway is a distinction peculiar to English law and ought not to be applied in India.
22. I have reproduced the whole passage as the other decisions referred to by Mr. Bose in support of his argument are based on this passage alone. It becomes necessary therefore to ascertain exactly what the Judicial Committee said. Nowhere in their judgment did their Lordships discuss the doctrine of the necessity of proving special damage in actions relating to a public nuisance far less did they say that this doctrine had no application in India. What they said was that the English authorities which lay down the difference between proceedings by indictment and by civil action in regard to what is done on a highway has no application in India. It seems to me that the misconception of what was laid down by the Judicial Committee arises from the wrong assumption that every obstruction of a person or a group of persons on a highway constitutes a public nuisance. Every wrong done on a public highway is not necessarily a public nuisance and when such wrong is not a public nuisance the doctrine of special damage has no application. In England there are certain special rules and statutes regarding what may or may not be done on a high way and there are special remedies provided for the infringement of these special rules and statutes. All that their Lordships said was that these special rules were peculiar to England and that the Bombay High Court was wrong in relying on the English decisions which rested on these special rules. The case before the Judicial Committee and the case before the Bombay High Court were not cases of a public nuisance at all. A public nuisance obviously must be a nuisance which affects the general public; if it is committed on a highway it must affect all His Majesty's subjects in the normal use of the highway. An obstruction to an individual as such or to a particular group of individuals as such on a public highway does hot constitute a public nuisance. In the case before the Judicial Committee the Shias, a particular sect, complained that they were being prevented from using a highway in a particular manner. It was a case of a trespass on the rights of the Shias and not a case regarding a public nuisance inasmuch as the general public was not being affected and inasmuch as the normal user of the road was not being interfered with. Their Lordships, not having to deal with a case of public nuisance, said nothing about the law relating to it or about the doctrine of special damage. Their observations set out above cannot in my opinion be taken to imply that in India the doctrine of special damage has no application.
23. In Mandakini Debee v. Basanta Kumari : AIR1933Cal886 which was a case in regard to a public nuisance, Jack J. one of the Judges after finding that there was special damage expressed the view that the Privy Council had decided in Manzar Hasan v. Muhammad Zaman that in all cases of obstruction of a highway the doctrine of special damage had no application. The other learned Judge, Mallik J., expressed no such opinion but decreed the suit on the ground that special damage had been proved. I respectfully disagree with the view expressed by Jack J. As the decision was not based on that view we are not required to refer the matter to a Pull Bench. The decision in Munusami Chetti v. Kuppusami Chetti ('39) 26 A.I.R. 1939 Mad. 691 and the case in Municipal Committee Delhi v. Mohammad Ibrahim ('35) 22 A.I.R. 1935 Lah. 196 adopt the same view as was expressed by Jack J. For the reasons already given by me I am unable to follow these decisions. The view that I have taken viz. that an obstruction of the kind described in Manzar Hasan v. Muhammad Zaman does not constitute a public nuisance finds support in Baslingappa v. Dharmappaa ('10) 34 Bom. 571 This was a suit for a declaration that the plaintiffs were entitled to go in procession with a car along a certain public road. The suit was dismissed by the trial Court on the ground that no special damage had been proved. The High Court decreed the suit holding that no special damage was necessary as the suit was not for the removal of a public nuisance but for a declaration of the rights of an individual community to use the public road. In this connexion I would also refer to the case in Velan Pakkiri v. Subbayan ('19) 6 A.I.R. 1919 Mad. 674 Wallis C.J. at p. 279 states that where the defendants assembled on a public road to prevent the plaintiffs from using the road in a particular manner that would not be a case of public nuisance but of trespass to the defendants and that special damage in such a case was not necessary.
24. I am fortified in my view that the Judicial Committee in Manzar Hasan v. Muhammad Zaman did not decide that proof of special damage in suits in respect of a public nuisance was not necessary in India by the observations of the Judicial Committee in Kumarvelu Chettiar v. Ramaswami Ayyar their Lordships state that a litigation in respect of a public nuisance where no special damage has been sustained is only authorized under the Code if it be instituted with the consent in writing of the Advocate-General. The remarks of the Judicial Committee in Mahraja Mansingh v. Arjunlal also indicate that the doctrine of special damage is applicable in India. I would next refer to the case in Ramghulam v. Ram Khelawan ('37) 24 A.I.R. 1937 Pat. 481. where the case in Manzar Hasan v. Muhammad Zaman was considered and interpreted in the manner suggested by me. It was also held that the Judicial; Committee in the last mentioned case did not reverse the decisions of the Indian High Courts to the effect that an action with regard to a public nuisance to be maintained must establish special damage or be brought under the provisions of Section 91, Civil P.C. It was also held that the case before the Judicial Committee did not involve a public nuisance but dealt with a very limited question relating to the conduct of religious processions over a public highway. I entirely agree with this view.
25. In the present suit the plaintiff complains that a public highway has been encroached upon by the erection of a fencing. This constituted a public nuisance. The plaintiff neither proves nor even alleges any special damage and para. 8 of the plaint makes it quite clear that no special damage was suffered. In these circumstances the suit must be dismissed. An additional ground was taken in this appeal that as the roadway in front of the plaintiff's house had been narrowed the Court should presume special damage. The map exhibited in the case shows a very slight encroachment. The mere fact that the plaintiff has his house on the road would not, in my opinion, justify a presumption of special damage. The appeal is accordingly dismissed. No order as to costs.