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4. The ground in this case on which the Municipal Commissioner has declined to grant the license to the applicant is that he is prevented by the decision of the Appeal Court referred to by me from doing so. If, therefore, the Appeal Court judgment does not bear the construction which is put upon it by the legal advisers of the Municipal Commissioner, clearly the action of the Municipal Commissioner in declining to grant the license would be illegal.

5. The sole question, therefore, before me is whether the judgment of the Appeal Court bears the construction which is put upon it by the legal advisers of the Municipal Commissioner and whether that judgment covers the altered circumstances of the case as now existing and therefore prevents the Municipal Commissioner from granting the license. I have very carefully considered this question, as I find from the proceedings that the matter was fought out in the Court of the Chief Presidency Magistrate and before the Appeal Court in the most acrimonious spirit and as found both by the Magistrate and by the Appeal Court the parties concerned refused to consider any compromise or any middle way out of the difficulty created by the action of the Municipal Commissioner in then proposing to grant a license to the applicant. It further appears that long before the Municipal Commissioner decided to grant a license the residents of the locality had made complaints to the Municipality and the Municipal Sanitary Committee had examined the locality and made a report and the matter had again come before the Corporation, and ultimately the Corporation having decided to support the action of the Municipal Commissioner in his proposal to grant a license to the applicant, proceedings were taken, under Section 515 of the Municipal Act, by one L. R. Mallandaiue, who lived in a bungalow belonging to the applicant and which bungalow was on throe Hides surrounded by the stables, before the Chief Presidency Magistrate. This was the first case of its kind in Bombay It appears to me that by reason of its being the first case neither the parties nor the Chief Presidency Magistrate were quite clear in their minds as to what was exactly the issue before the Court and what was exactly the relief as bearing on that issue asked for by the complainant. I make case observations advisedly after very carefully going through the proceedings and the judgment of the Magistrate, as I find, as pointed out by Mr. Campbell in his very fair and able argument on the point, that there are stray observations in the judgment of the chief Presidency Magistrate and indications in the evidence led before the Chief Presidency Magistrate on behalf of the complainant that the complainant was fighting not only his own battle but the battle of the other residents in the locality, who, it appears, had also financed him. The learned Magistrate has, however, based bin decision mainly on the evidence which showed that the stables would cause a nuisance to the residents of the house in which the complainant resided. That the point as to whether the nuisance complained of affected the public was before the minds of the parties and the Magistrate appears to me to be clear from the fact that from the very first Mr. Campbell, who appeared for the Municipal Commissioner in that case, raised the point that the Magistrate had no jurisdiction under Section 515 of the Municipal Act to entertain the complaint as the complaint was in respect of a private nuisance and not a public nuisance. The question as to the nature of the nuisance complained of and whether it came within the terms of Section 515 had to be and was considered by the Magistrate. Moreover, the scope of the order, which he ultimately made, was bound to be circumscribed by the finding as to the nature of the nuisance with regard to which the Magistrate found action "n his part was necessary under Section 515 of the Municipal Act. Here it is important to bear in mind that H. 515 of the Municipal Act is designed to empower the Magistrate to give summary relief by way of prevention or otherwise not only in respect of a public nuisance but any nuiance as defined by Section 3 (z) of the Municipal Act. Section 3 (a) makes it clear that " nuisance " under the Municipal Act includes both private nuisances and public nuisances. The definition runs as follows:-"'Nuisance' includes any act, omission, place or tiling which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smelling or hearing, or which is or may be dangerous to life or injurious to health or property." The point taken in the very first instance by counsel for the Municipal Commissioner was that notwithstanding the wide terms of the definition of " nuisance" in the Municipal Act, the words should be read as confining the definition to public nuisance only. That is to say the argument was that unless the community or large part of the community or a street or locality was affected by the nuisance the Magistrate was not to exercise the summary jurisdiction under Section 515. That point was considered at some length by the learned Chief Presidency Magistrate and although he does not quite clearly find that the nuisance complained of was not a public nuisance, he impliedly holds that it was not. Otherwise one would have found in the very forefront of his judgment that the nuisance complained of was a public nuisance and that, therefore, there was no force in the contention that it was not coveretd by Section 515. He might then have further held that even if he was wrong in holding that it was a public nuisance, the nuisance complained of was covered by the definition- given in Section 3 (z). But he does not do so, and to my mind advisedly. There was no case of public nuisance which was either seriously pun forward or which was seriously advanced in the evidence or which was seriously considered by the Chief Presidency Magistrate. There are indications of an attempt on the part of the complainant to bring this nuisance within the definition of a public nuisance by adducing evidence of people in the locality to the effect that since the user of these stables malaria had prevailed in their houses and that malaria was due, if not solely, to a great extent to the fact of the user of the stables. There was nothing to prevent the Chief Presidency Magistrate from holding on the evidence before him that not merely the residents in this house but the residents of the locality were affected by the user of these stables and that, therefore, it was not merely a private nuisance but a public nuisance which he wanted to abate under the powers given to him under Section 515, If one looks at the whole of the judgment, notwithstanding stray remarks here and there which might indicate that the Chief Presidency Magistrate had some doubts as to whether romotely there might not be some danger of malaria to the coming to his particular the residents of the locality and the public, in conclusion he definitely confines himself to house and the residents in that particular house. I need not quote passages from the judgment of the Chief Presidency Magistrate to show that throughout he was considering the question as if it was a fight between the complainant, as representing the residents of the bungalow in which he was living, and the Municipal Commissioner. I may here refer particularly to the appreciation by the Chief Presidency Magistrate of the evidence of Mr. .Niblett, Mr. Masani and Mr. Daruwalla, who all stated that although the stables were not a public nuisance, they might result in a certain amount of nuisance to the occupants of the bungalow on the ground of noise caused by the syces talking and shouting and of insanitary conditions which might result by the washing of the horses and the victories in the stables; and particularly on the evidence of these three gentlemen the learned Chief Presidency Magistrate holds that the stables were proved to be a nuisance within Section 3 (z) of the Municipal Act. He then also refers to the judgment of Mr. Justice Beaman in Bai Bhicaiji v. Perojshaw Jivanji (1915) I.L.R. 40 Bom. 401 : S.C. 17 Bom. L.R. 1040, which case also was a case of a private nuisance. In the final conclusion the learned Magistrate does bring in the occupants of the neighbourhood, but considering the judgment as a whole, I am of opinion that the learned Magistrate did not find that there was a public nuisance likely to be created by the user of the stables but a private' nuisance which he had jurisdiction to abate under Section 515.

8. As observed by Mr. Justice Holmwood in Khagendra Nath Mitter v. Bhupendra Narain Dutt (1910) I.L.R. 38 Cal. 296, 299 the Court ought most strongly to deprecate the use of the Municipal Act for the purpose of interfering in any way with the rights of private ownership beyond those limited powers which the Corporation had obtained by statute for the necessary protection of the public and the enforcement of proper sanitation. I entirely agree with those observations, as after all in a big city like Bombay one cannot omit the consideration of the rights of ownership which might be affected to a very large extent by any hasty and improper action of the Commissioner or the Corporation or the Court. No doubt, if the user of the stables was in fact found to be a nuisance in respect of houses other than the bungalow, it was open to the Court and it would have been right for the Court, to find that the nuisance did not relate merely to the particular bungalow but to other houses also. If they thought that the nuisance related to the whole locality it was a public nuisance but if it related to the bungalow in question it was a private nuisance. The relief which the Court can give in both oases under Section 515 is inter alia abatement of the nuisance by ordering the Commissioner not to grant the license for the stables. But it does not follow from the Court's making an order on the Commissioner that he should not grant a license that that order is to govern all circumstances and all oases at all times. Mr. Desai argued that if the order was meant to cover any larger area than the bungalow, such area ought to have been defined in the judgment of the Magistrate and the Appeal Court. I have looked through a good many cases of nuisance and I do not find anywhere that any limitation as suggested by Mr. Desai has been put and for the obvious reason because it would be very difficult in particular cases to demarcate any particular line. The law has, therefore, provided two very proper demarcating lines which are clear and on which there can be no discussion, and that is, dividing nuisances into private and public nuisances With regard to a private nuisance, each individual has his remedy in civil law by way of injunction and damages. He has further his remedy under Section 515 of the Municipal Act as interpreted by the Appeal Court and by the Calcutta High Court in two cases arising under a similar provision in the Calcutta Municipal Act: Bhagwan Das v. Rash Behari Mullick (1909) 14 C.W.N. 637 and Khagendra Nath Mitter v. Bhupendra Narain Dutt (1910) I.L.R 38 Cal. 296. It is necessary for the protection of the health and comfort of the inhabitants of a big city like Bombay or Calcutta that any resident, who is affected by a nuisance in the manner mentioned in Section 3 (z) of the Municipal Act, should have a right to go to a Magistrate over the head of the Commissioner or the Corporation and ask that the Commissioner should be restrained from exercising his powers so as to affect the complainant's individual right as resident by the creation of a private nuisance. If private nuisance affects two or three houses, the inhabitants of the two or three houses might either join in a civil suit or they might file separate suits, or they might join in a complaint before the Magistrate and ask the Magistrate to decide specifically that the particular nuisance is a private nuisance affecting the residents of houses A, B and C. With regard to a public nuisance also, any resident of Bombay can ask for an order under Section 515, and if the Court finds a public nuisance proved, the order of the Court would give relief to the public of the locality as against the nuisance and vacating of any one or more houses would not mean an abatement of the nuisance in respect of the public, In the case of a public nuisance, no particular limits need be defined.

14. In the case of a public nuisance there is a special remedy provided in the Civil Procedure Code. Under Section 91 of the Civil Procedure Code, the Advocate General or two or more persons having obtained his consent in writing may institute proceedings for abatement of a public nuisance. There is, further, a provision in Section 268 of the Indian Penal Code in respect of a public nuisance. There "public nuisance" is defined as 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 occasion to use any public right I refer to these provisions, because I find from what Mr. Campbell very properly brought to my notice that the inhabitants of the locality have been under the impression, the same impression aa conveyed by the Municipal Commissioner to the applicant and which necessitated these proceedings, that the order of the Appeal Court protected all the inhabitants of the locality in respect of this nuisance. Probably they financed that litigation and backed up the complainant Mr. Mallandaine in the belief that if he succeeded, there would be an end of the matter. They did not count upon the ingenuity of the landlord, who got the particular house vacated and got the nuisance in respect of that particular house abated in a manner which was not contemplated by the other residents of the locality. I have looked at the plans put in in that case and I find that the two nearest houses next, to the bungalow in that case are the houses of Ismailji and of Nazir.

15. I express no opinion whatsoever as to whether the user of these staples will result in discomfort or annoyance amounting to a nuisance as defined in Section 3 (z) of the Municipal Act, or whether there will be a nuisance at law actionable in this Court as a private nuisance in respect of any house or houses other than the bungalow or whether it will result in a public nuisance which would be indictable under Section 268 of the Indian Penal Code or actionable under Section 91 of the Civil Procedure Code. It may be that the residents of the locality may make a fresh effort and succeed perhaps so as to lay the matter at rest for all time. But unfortunately for them the Courts which considered that case confined their orders to the bungalow and did not hold there that a case of public nuisance was made out. The result is that if these parties are so advised there will be possibly further litigation in this matter. I do not want in any way to debar any resident or residents of the city of Bombay from taking proceedings cinder Section 515 of the Municipal Act or under the civil law, or under Section 91, by moving the Advocate Genera], or under Section 268 of the Indian Penal Code.