Madras High Court
Binny Ltd. Registered Under The ... vs Murari Hospital Syndicate, A Society ... on 18 February, 1998
Equivalent citations: (1998)2MLJ379
JUDGMENT S.S. Subramani, J.
1. 1st Defendant in O.S. No. 1180 of 1971, on the file of the II Assistant City Civil Court, Madras, is the appellant.
2. Two plaintiffs have filed a suit under Order 7, Rule 1 and Order 1, Rule 8, C.P.C., for the following reliefs :
(a) restraining the defendant by issuing a permanent injunction from loading or unloading or stacking coal or any other materials offensive or injurious to the health of the plaintiffs and other local residents and/or to the value or utility of their properties;
(b) directing the first defendant to pay the costs; and
(c) granting the plaintiffs such further or other reliefs as the Court may deem fit and proper in the circumstances of the case.
3. In the body of the plaint it is said that the plaintiffs have filed the suit on their behalf and on behalf of the residents living near Perambur High Road, Perambur, Madras. The reason for filing the suit was that the 1st defendant is using its land in the said locality in the way resulting injurious to the health of the local residents and damages to their properties. The 1st plaintiff is the owner of lands comprised in S. No. 249/2, and still owns few plots of vacant land therein. He has also sold plots of lands in the same survey number to different persons and some of them have constructed residential buildings. The 2nd plaintiff is the owner of premises No. 68, Perambur High Road, Madras, and has let out portions to different tenants. The locality is a residential area and State Bank Colony and Desai Colony are also situated in that area. E.S.I. Hospital is situate next to the properties of the 1st plaintiff. The 1st defendant is the owner of the adjoining lands in S. No. 250/5. During the course of early 1969, they started using the land for stacking coal taking advantage of the loading and unloading facilities provided by the Railway siding. When the coal is loaded or unloaded coal dust spread around, finding its way inside all the rooms of the houses in the area and the coal dust spreads around blown by the wind when it is stacked. Consequent to the aforesaid act of the 1st defendant, the buildings become dirty and the food-stuffs and water are polluted and it does materially interfere with the health of the residents leading to disease. The residents also suffer physical discomfort in breathing as the air is polluted. The plaintiffs through their counsel sent a notice on 20.11.1969 calling upon the 1st defendant to remove the coal and to stop further unloading and stacking of the coal, which was replied denying the allegations. It is said that the plaintiffs are the residents of the locality and have a right not to be exposed themselves or their properties to the discomfort, injury and loss occasioned by the offensive trade carried by the 1st respondent which amounts to a nuisance.
4. In the written statement, the maintainability of the suit was challenged on the ground that the plaintiffs have not obtained a written consent of the Advocate General as provided in Section 91 of the Code of Civil Procedure, nor the plaintiffs have proved any special damage, so as to enable them to file a suit. It is further said that the 1st defendant has obtained proper permission of the Corporation and their actions in loading and unloading of coal in their property is only lawful, and they have also taken preventive measure, so that the coal dust may not spread outside. They are doing watering to the coal, and therefore, the alleged nuisance is also not correct. There is also no nuisance much less an actionable nuisance. They prayed for the dismissal of the suit.
5. Before the trial Court, evidence both oral and documentary was taken. P. Ws. 1 to 3 were examined on the side of the plaintiffs and the appellant examined one Desai as his witness. As documentary evidence the plaintiffs filed Exs.A-1 and A-2, which are only the notice and reply notice and Exs.B-1 to B-10 were filed on the side of the appellant.
6. After elaborately considering the entire evidence, the trial court found that the suit is maintainable and is not barred under Section 91 of the Code of Civil Procedure, and it is further found that the action of the appellant in loading and unloading coal is spreading dust, and therefore, the locality and the plaintiffs houses are also damaged. A decree of permanent prohibitory injunction was granted against the appellant, restraining it from loading and unloading of coal or any other materials which causes injury to the plaintiffs and other residents of the locality.
7. Aggrieved by the judgment, the appellant preferred A.S. No. 269 of 1974, on the file of the Principal City Civil Court, Madras. The lower Appellate Court also found that the action of loading and unloading of coal in the appellant's property is an actionable nuisance and the same is harmful and injurious to health. It also found that even without the sanction of the Advocate General or even without proving or pleading the special damage, the suit could be entertained. But the lower Appellate Court did not find favour of the trial Court's Judge, in so far as it has granted permanent prohibitory injunction for loading and unloading of other materials, without disclosing the nature of such materials. A decree was granted restraining the appellant from loading or unloading or stacking coal within its property so as to occasion a nuisance to the plaintiffs and their properties. It is against this concurrent Judgments, the 1 st defendant has preferred this second appeal.
8. At the time of admission, learned Judge of this Court formulated the following substantial questions of law for consideration :
(1) Whether the suit filed by the Plaintiff purporting to be under Order I, Rule 8, C.P.C. and basing themselves on the alleged commission of nuisance by storing of coal on the defendant's property which was alleged to affect the life of 'residents living near Perambur High Road, Madras', can be said to be one involving only a private nuisance and not a public nuisance requiring the permission in writing of the Advocate General under Section 91 C.P.C?
(2) Whether the plaintiffs have proved that they have suffered substantial injury and interference with their ordinary modes of living according to current standards applicable to their legality by the act of the Appellants storing, loading and unloading and stacking on its own property for its own business?
9. Civil revision petition is also filed by the very same appellant, challenging the order of the executing court. After the decree was confirmed in appeal the respondents herein filed execution application alleging that the appellant is not only disobeying the decree but also violating its terms, and wanted to initiate action under Order 21, Rule 32, C.P.C. The same was seriously opposed by the petitioner on the ground that he has taken every action to abate the nuisance by watering the coal, and the execution application is not maintainable. The Executing Court after considering the oral evidence, came to the conclusion that the 1st defendant has not obeyed the decree and the nuisance is liable to be proceeded by attaching the property of the petitioner. That necessitated the filing of the revision by the 1 st defendant in the suit.
10. Both the second appeal and civil revision petition are heard together in detail and the only point which the learned Counsel" for the appellant argued was regarding the maintainability of the suit. Before considering the maintainability of the suit, it may be stated that the trial Court as well as the lower Appellate Court have come to the conclusion that the action of loading, unloading and stacking of the coal in 1st defendant's property is injurious to the health of the nearest residents and the buildings belonging to the plaintiffs also becoming dirty, since the coal dust spreads over the building and the entire air, food stuffs and even the water are getting polluted in view of the coal dust. The plaintiffs are residents close to the place where the loading, unloading and stacking of coal work is going on. Appreciating the evidence adduced before it, both the trial Court as well as the lower Appellate Court have come to the conclusion that the plaintiffs have a cause of action and it is a private nuisance, and they are entitled to get a decree of permanent prohibitory injunction. As I have stated earlier, the learned Counsel for the appellant did not argue on the facts of the case or how far the concurrent finding of the courts below is not correct. He confined his argument only regarding the maintainability of the suit.
11. In 1971, when the suit was instituted, Section 91 of the Code of Civil Procedure reads thus :
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 the 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.
Sub-section (2) of Section 91 reads as follows :
Nothing in this section should be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.
Even though the said section has been amended in the year 1976, the amendment is not given retrospective effect. So we have to decide the suit on the basis s of the law as it then existed.
12. I only refer to some case laws in this regard. In a very early decision of this Court reported in Valan Pakkiri Taragan and Ors. v. Subbayan Samban and Ors. A.I.R. 1919 Mad. 674 a Full Bench consisting of three eminent Judges have considered this question. In that case, a Magistrate has passed an order under Section 144 of C.P.C, forbidding a person or body of person from using a highway for the purpose of procession. The question was how far the suit is maintainable. Wallis, C.J., in his opinion held thus :
The obstruction in the case cited consisted of interference with the surface of the highway which interfered with the fight of the public to pass and repass freely. The same principle would, no doubt, apply if the defendants obstructed the 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 but of trespass or threatened trespass to the plaintiffs, and in trespass an action lies without proof of special damage. That indeed is the general rule, the rule as to special damage in cases of public nuisance being the exception.
(Italics supplied).
In a concurrent opinion of Seshagiri Ayer, J., it was held thus :
The earlier cases which laid down that for an injury which is common to himself and to the rest of the public the complaining plaintiff should allege special damage proceeded on the ground that otherwise there would be multiplicity of suits. That seems to have been the basis of the English decisions on the point. But in England there is apparently no procedure by which the Magistracy can prohibit particular classes, communities or bodies of persons from exercising civil rights. In my opinion magisterial orders cause special injury to the persons prevented. Therefore, the rule of English law is not strictly applicable in India, if I am right in this view, it would lead to no good to classify such orders into proper and improper ones and to invest the latter alone with the attributes of special injury. In both cases the party is equally affected. In both cases it is desirable that the party should have an opportunity or proving that his rights have been interfered with.
Ayling, J. also concurred with the opinion of the other learned Judges.
13. In Saiyid Manzur Hassan and Ors. v. Saiyid Muhammad Zaman and Ors. A.I.R. 1925 P.C. 36, Their Lordships accepted the Madras line of thinking and held that the English principle has no application to Indian conditions. Their Lordships said 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 in India."
14. After this Judgment of the Privy Council, the scope of Section 91 of the Code of Civil Procedure came up for consideration in the decision reported in Munuswami Chetti and Ors. v. Periya Kuppuswami Chetti and Ors. A.I.R. 1939 Mad. 691 : (1939)1 M.L.J. 302 : 1861.C. 208 : I.L.R. 1939 Mad. 870. In that case, learned Judge said 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 pubic way does not apply to India. Hence a person can maintain a suit for establishing a public right and removal of an obstruction which constituted a public nuisance, without the sanction of the Advocate General under Section 91 and without proof of special damage.
15. The scope of Section 91 of C.P.C. came up again for consideration in Kodavalur Subbamma v. Lota Narayanamurth and Ors. A.I.R. 1949 Mad. 634 : (1949)1 M.L.J. 56. wherein Satyanarayana Rao, J. in paragraph 7 of the Judgment, extracted the English law as stated in 24 Halsbury P. 82 para 144 (2 Edn.) and held thus :
This position of the law was accepted and applied in India till the decision of the Privy Council in Manzur Hasan v. Mohamed Zaman, I.L.R. 47 All. 151, etc. In one class of cases, however, there was difference of opinion between the Bombay and the Madras High Courts. That was where a community or a section of a community or a particular body of persons claimed a right to carry a procession along a public highway and there was obstruction of that right by others. The Bombay view was that even in such class of cases it was incumbent upon the plaintiffs to allege and prove special damage. Satku Valad Kadir Sausare v. Ibrahim Aga Valad Mirza Aga, I.L.R. 2 Bom. 457 was a case on that point though in a later decision in Baslingappa Parappa v. Dharmappa Basappa, I.L.R. 34 Bom. 571, a different view was expressed. This Court in Velan Pakkiri Taragan v. Subbaya Samban, I.L.R. 42 Mad. 271, decided that a suit would be maintainable in such a case without allegation and proof of special damage. Such class of cases were treated by this Court as not being cases of public nuisance at all but cases of trespass or threatened trespass to the plaintiffs and an action of trespass was maintainable even without proof of special damage. Finally this conflict was resolved by the Privy Council in Manzur Hasan v. Mohamed Zaman, I.L.R. 47 All. 151, already referred to. The Judicial Committee accepted the view of this Court as being right and held that the Bombay view was wrong. Lord Dunedin referred to the decision of the Bombay High Court in Satku valad Kadir Sausctre v. Ibrahim Aga Valad Mina Aga, I.L.R. 2 Bom. 457, and after setting out the head note in that judgment pointed out that the Bombay decision "proceeded 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 on a highway is a distinction peculiar to English law and ought not to be applied to India."
The decision in Satku Valad Kadir sausare v. Ibrahim Aga Valad Mirza Aga, I.L.R. 2 Bom. 457, proceeded upon an exhaustive examination of the authorities on which the rule of English Common Law was founded and the learned Judges applied that rule to the case before them which related to a right to take a procession along a high way without obstruction. It is the correctness of the application of the English Common law rule that came up for consideration before the Judicial Committee. The Judicial Committee did not rest their decision on the ground that the special rule as to damage did not apply to the class of cases before them but that the rule itself had no application to India and that the distinction was peculiar to the English law and that it should not be extended to India. In view of this clear pronouncement it is difficult to confine the decision of the Privy Council to what may be called the procession cases as did the learned Judges of the Calcutta and the Patna High Courts. I respectfully agree with Wadsworth J. in his interpretation of the Privy Council decision "that it deals generally with the while class of cases governing the rights of the public to use the public way." This was also the interpretation placed by two earlier decisions, one in Mandakinee Debee v. Basanta kumara Debee, I.L.R. 60 Cal. 1003 by Jack J. and the other in Municipal Committee, Delhi v. Mohamed Ibrahim, I.L.R. 16 Lah. 517. The Calcutta High Court in Surendra Kumar basu v. District Board of Nadia, I.L.R. (1942)1 Cal. 533, and the Patna High Court in Chowdry Bibuti Narayansingh v. Maharaja Sir Guru Mahadev Asram Prasad Sahi Bahadur, I.L.R. 19 Pat. 208, interpreted the decision of the Privy Council in a different manner and confined its operation to procession cases.
In paragraph 8 of the Judgment, learned Judge held thus :
Their Lordships of the Calcutta High Court were of the opinion that the statement of the law in Basllngappa Parappa v. Dharmappa Basappa, I.L.R. 34 Bom. 571 was expressly approved by the Privy Council except quoting the hear-note of that decisioh nowhere was it stated in the judgment that the statement of law was approved. There is no indication on the judgment of their Lordships that they were accepting the distinction drawn in Baslingappa Parappa v. Dharmappa Parappa, I.L.R. 34 Bom. 571, as the basis of the decision. The decision of the Privy Council is founded on the larger principle that in an action by a private individual for relief in respect of a public nuisance it was not necessary under Indian law to establish special damage. The passage already quoted makes no exception of any sort and is general in its scope. I am unable to accept the view taken by the Calcutta and the Patna High Courts and in my opinion the decision of Wadsworth, J. is right.
16. In Ganapathi Mudaliar v. Ponnuswami Kounder and Ors. (1979)2 M.L.J. 295, it was held thus :
Where a complaint is made by an individual or a representative body under Order 1, Rule 8, Civil Procedure Code of an actionable wrong or of a special damage or inconvenience apart from the inconvenience or damage caused to the public in general, by reason or a public nuisance, a suit is maintainable and Section 91, Civil Procedure Code will not be a bar.
Admittedly the street in question is a public one over which all the members of the public have a right to pass and re-pass and a right to obstruct it cannot be acquired either by custom or prescription, nor even by a grant. The right of passage exists on the whole street which is normally presumed to extend upto the private property on either side. The obstruction of the right of passage may be a public nuisance and in the absence of a special damage, i.e., damage peculiar and particular to the plaintiffs and different from the damage suffered by the public, the only civil remedy is by way of a suit under Section 91, Civil Procedure Code. But where an construction is caused in the public street as in the case depriving the plaintiff's of their right of access to and from their dwelling abuses, they could sue for invasion or interference of that right. In such cases, the damage is caused directly by obstruction of their access and a suit in respect of it will lie without proof of special damage or without the sanction under Section 91, Civil Procedure Code.
A normal user of the public street like walking on it, is a user that could not be obstructed to and if obstruction takes place, a suit under Order I, Rule 8 would lie without the consent under Section 91, Civil Procedure Code and without proof of actual or special damage. The right of the owner of the property adjoining a public street to have access to the street is totally different from the right of passage along the public street. The former is a private right of property and any obstruction thereto is actionable, whereas the latter is a public right and no action will lie for an obstruction in the absence of proof of special damage or sanction under Section 91 (1) Civil Procedure Code. Sub-Section (2) of Section 91 makes it clear that Sub-Section (1) does not limit or otherwise affect any right of suit which may exist independently of Section 91.
17. In view of the above settled legal position, I do not think the applicant is successful in pursuing this Court to come to a different conclusion a legal question that has been settled already. In this case, the plaintiffs who are residing very close to the defendant's property, have proved their case, even though the suit was filed under Order 1, Rule 8, C.P.C., on the allegation of public nuisance, their sufferings are also pleaded and are in evidence. Under Ordinary Law of Torts, the plaintiffs are entitled to institute a suit for the grant of injunction. In the Ratanalal and Dhirjalal's Law of Torts - 22nd Edition 1992, at page 508, the learned author has said what is meant by 'Private Nuisance', as hereunder :
Private nuisance is the using or authorising the use of one's property, or of anything under one's control, so as to injuriously affect an owner or occupier of property by physically injuring his property or by interfering materially with his health; comfort or convenience. Private nuisances include acts leading to (a) wrongful disturbances of easements or servitudes, e.g. obstruction to light and air, disturbance of right to support; or (b) wrongful escape of deleterious substances into another's property, such a smoke, smell, fumes, gas, noise, water, filth, heat, electricity, disease, germs, trees, vegetation, animals, etc. The forms of this nuisance are innumerable.
The escape of coal dust and the pollution of water and foodstuff kept in the building cannot but be a nuisance which are harmful to health. The appellant was rightly prevented from making use of his property for the purpose of loading and unloading and stacking coal.
18. In the connected revision, the Execution Court has found that the appellant continues to violate the decree of injunction. Learned counsel for the petitioner submitted that he has made every attempt to abate the nuisance and he also brought to my notice certain observations in the Judgment of the lower Appellate Court, wherein it is found that the 1st defendant is watering the coal, so that the dust may not spread to other man's property. In view of the said observation in the Judgment of the lower Appellate Court, learned Counsel for the petitioner submitted that the decree cannot be executed, as he already abatted the so called nuisance. This point was considered by the trial Court and finally concluded that inspite of watering the coal, the nuisance has not been abated. The lower Appellate Court has not said that the nuisance is abated by watering the coal. It only found that the appellant used to water the coal. But how far the nuisance is abated or the decree stands violated is a question which is to be decided now. The Executing Court on appreciating evidence came to the conclusion that the decree has not been obeyed.
19. I do not think that the argument of a batting the nuisance can arise in this case at all. The decree is one of permanent prohibitory injunction restraining the appellant/petitioner from loading unloading and stacking the coal in the property, so as to cause nuisance to the plaintiffs. It is the stacking, loading and unloading that are found to be a nuisance. If that is prohibited by a decree, the abating of nuisance will not arise.
20. In the result the second appeal is dismissed without any order as to costs. The civil revision petition is dismissed with costs. Advocate's fee is Rs. 1,000. The Executing Court is directed to proceed with the execution from the stage from which it was stayed.