Bombay High Court
Sayad Jafir Saheb vs Sayad Kadir Rahiman And Anr. on 30 August, 1888
Equivalent citations: (1888)ILR 12BOM634
JUDGMENT Charles Sargent, C.J.
1. The District Judge has found that the privy is a nuisance, but has held that the defendants have established the two propositions laid down by Lord Watson in Metropolitan Asylum District v. Hill 6 H.L. App. Cas. 193 at p. 213 as requisite to justify such a nuisance: firstly, that he was acting under the imperative orders of the Legislature, and secondly, that he could not possibly obey those orders without injuring private rights. The defendant may hare acted under the orders of the Municipality. But the terms of the Statute, Bombay Act VI of 1873, Section 36, under which those orders were given, were not imperative in requiring the Municipality to call on the owner of the particular house inhabited by the defendants or any houses within a particular area in which the defendants' house was situated, to build a privy, but are simply permissive, leaving it to the discretion of the Municipality to determine when the power conferred on them shall be exercised. In such a case Lord Watson says: "The fair inference is that the Legislature intended that discretion to be exercised in strict conformity with private rights." Again, there is nothing in the Act which necessarily requires privies to fee erected, although their being so erected would create a nuisance, or to lead to the inference that the Legislature supposed that they could not be erected without creating a nuisance, from which it might be concluded that the Legislature intended they should be made regardless of other persons' rights. The absence of these indications in the Act under which the power is exercised is relied on by Lord Selborne and Lord Blackburn in the case above referred to as distinguishing it from The Directors, & c., of the Hammersmith and City Railway Company v. G.H. Brand L.R. 4 H.L.171. As the Municipality had, therefore, in our opinion on the proper construction of the Act, Bombay Act VI of 1873, no authority to order the defendants to erect a privy regardless of the plaintiff's rights, they cannot plead that they acted under their orders. We must, therefore, reverse the decree and direct an injunction to issue, directing the defendants to remove the privy within three months from the date hereof. Plaintiff to have his costs throughout.