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15. It was next strenuously argued that even if I came to the conclusion to which I have above, the present suits must fall to be dismissed as they were filed without the consent of the Advocate General in compliance with the provisions of Section 91 C. P. C. The argument of learned counsel for the defendants was that the right claimed by the plaintiffs in these cases was really a public right of way and an interference with such a right of way would amount to a public nuisance within the meaning of Section 91(1) and so these suits were not maintainable having not been filed by the Advocate General or with his consent as required by Section 91. The question which therefore arises for determination is whether the obstruction caused in the instant cases amounts to a public nuisance within the meaning of Section 91(1) C. P. C. 15a. Now so far as this aspect of the matte: goes, I may state at once that the first of these two suits was certainly brought by the plaintiffs not merely on the ground of a public nuisance but on a right of suit which existed independently of the provisions of Sub-section (1) of Section 91 C. P. C. Sub-section (2) of this Section provides as follows :

The principle deducible from these cases seems to be that where the wrong complained against relates to a village pathway, as contradistinguished from a public highway, then a village pathway being open merely to a comparatively small number of people or a limited section of the public, an obstruction to it does not fall within the meaning of "public nuisance" as used in Section 91 C. P. C. on the reasoning that a public nuisance can only be caused by an interference with a public highway which a village, pathway is not. With very great respect for this view, there is one aspect of the matter which does not seem to have been considered in these cases and that is this. A public nuisance has not been defined by the Code of Civil Procedure and we have to go to the General Clauses Act for finding out what it means. That Act lays down that a public nuisance means a nuisance as defined by Section 268 of the Indian Penal Code.

Now a 'public nuisance' as defined in Section 268 of the Penal Code means ' 'an act............or an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasions to use any public right. Again, the word 'public' is defined in section 12 of the Penal Code Penal Code as including any class of the public or any community. Now as to a village pathway, I am prepared to assume that an interference with it may not amount to a public nuisance under the last-part of this definition (to wit, injury, obstruction, danger or annoyance to persons who may have occasion to use any public right I am also prepared to accept for the purposes of this argument that such interference may not fall within the introductory part of the definition namely an act or omission which causes injury, danger or annoyance to the public. There-is however, a part of this definition which speaks of an injury to the people in general who dwell or occupy property in the vicinity that is neighbours as distinct from the public, and I find it very difficult to hold that this clause will not apply to those who live or occupy property in the vicinity of a village pathway. If, therefore, the expression 'public nuisance' has to be interpreted in the light of the definition given in section 268 of the Penal Code, then the view that there cannot possibly be a public nuisance within the meaning of section 91 read with Clause 48 of Section 3, of the General Clauses Act with respect to the infringement or injury to a village pathway seems to me, with utmost respect, for the eminent Judges who have taken that view, to be not free from a certain amount of doubt or difficulty having regard to the state of law as it exists in our country. I shall, therefore, not pursue the above line of argument further and will proceed on the assumption for the purposes of this case that the way claimed by the plaintiffs was a public right of way and, therefore, a substantial interference with it would amount to a 'public nuisance' within the meaning of section 91 Civil Procedure Code.

25. Again in AIR 1948 Pat 183 (supra), it was held that a person of an immediate community or section of the public who is deprived of the amenity provided for that particular section should be deemed to have suffered loss without proof of such loss and that no special damage need be proved in such a case, and it would suffice if it is shown that a particular section of the public has been deprived of certain advantages which it has enjoyed for a long tune.

26. Now from the aforesaid review of case law, the principle deducible is this, and, with all respect, it seems to me that the various decisions to some of which reference has been made above and there are undoubtedly others to which I have not referred can all be more or less reconciled on this principle. The real test as to whether a suit of this or similar nature is maintainable without proof of special damage is to find out whether the suit pertains essentially to the removal of a public nuisance only, that is, of a common injury which the plaintiff or plaintiffs suffers or suffer as much as the rest of the community or the public and no more substantially over and above the injury or inconvenience caused generally or on the other hand in its quintessence the suit has been brought for the vindication of a right which is not a mere public nuisance but is independent of it and it is such a right which the plaintiff seeks to claim and get decided. If it is predominantly a case of the former kind, and does not involve the determination of any right independent of subsection (r) of Section 91, then it seems to me that the plaintiff cannot file a suit on his own and he must invoke the assistance of the Advocate-General so that either he brings the suit himself or permits two or more persons aggrieved to bring the suit, unless of course the plaintiff alleges and proves special damage, in which case no consent of the Advocate General would be necessary. If, however, the case is not merely a case of public nuisance but is in addition a case of private nuisance such as a grave trespass on the rights of the plaintiff on a public highway or involves the determination of any independent right such as the inherent right of an individual to use a highway for the carrying of a procession religious or otherwise, or any other similar right, then I am clearly disposed to hold the view that the plaintiff in such a case would be within his rights to bring a suit by himself, and this is exactly what Sub-section (2) of section 91 provides and the plaintiff in such a case need 'neither allege nor prove special damage. It is hardly necessary to point out that where the case does not relate to a public nuisance at all, then section 91 Civil Procedure Code is not at all called into play and no question of special damage or of the intervention of the Advocate General can possibly arise.