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9. Assuming I am wrong, I will proceed to consider whether this is a case within the purview and intention of Section 91 of the new Civil Procedure Code. That is a new section and this, I believe, is the first case in India which has been brought under it. Further, it is the first case in the history of Indian Law, I believe, in which, quite apart from that section, the Advocate-General has asserted his inherent powers of bringing actions to redress public grievances and public nuisances.

10. Section 91 says:

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 a 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.

11. Now, if the action be confined to the terms of that section, those terms must, I think, be defined as they are defined in the Acts of the Indian legislature, and the only definition we obtain of public nuisance is through the General Clauses Act, that which is to be found in Section 268 of the Indian Penal Code. That section says that " a person is guilty of a public nuisance who does any act or is guilty of 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."

12. By invoking a definition of injury' in Section 44, Indian Penal Code, the word " injury" denotes " any harm whatever illegally caused to any person in body, mind, reputation or property,'' the plaintiff seeks to bring the erection of this house in contravention of the term of Section 3496 within the scope of a public nuisance. The argument briefly is that these provisions of the Act are intended to protect the safety and health of the public. Therefore any infringement of them, however seemingly inocuous, must necessarily cause a common injury. Else the legislature would not have forbidden the act to be done. This is really importing a doctrine of some of the English cases into this branch of the discussion. I shall have occasion later to comment on those cases. It is enough here to say that very subtle and evasive distinctions seem to be discernible between the exercise of the powers of the English Attorney-General to check public grievances on the one hand and abate public nuisances on the other. His activities flow in these two distinct channels and are referable, no doubt, to the same source. But while the two channels sometimes seem to overflow into each other, there does appear to me to be a real possible line of separation. The Attorney-General representing the King or parens palrio has not only the welfare of all the King's subjects in his keeping in the sense that he is their protector against public nuisances but also in a somewhat different sense in that he will compel the maintenance of the law. And there are many instances in which the Attorney-General had intervened successfully in England which could only be by an excessive straining of language, almost to the verge of metaphor, called public nuisances. Such, for example, as monopolies and compelling companies to keep within the terms of their special Acts. In the present case the Advocate-General, arrogating all the powers of the English Attorney-General, claims to be clothed with a like authority and so to be empowered to interfere in this matter because it is a breach of the law, even though it may not be, in the common sense, a public nuisance. A consideration of that claim is proper to another branch of this case. For the present, I will consider whether it falls within the intention and meaning of Section 91 of the Civil Procedure Code. Now I think that no one, were it not for the provisions of Section 3496, would have dreamt of calling the elevation of this building down twenty-four feet of Church-gate Street a public nuisance.

17. Another branch of the defendant's argument depends upon a consideration of certain earlier Bombay cases, of which one instance (Satku v. Ibhrahim (1877) I.L.R. 2 Bom. 457) may suffice, and certain sections in the Indian Statutes. It is contended that because the High Court of Bombay, in the case cited, made no reference whatever to any power vested in the Advocate-General to control public nuisances, no such power had up to that period been recognized in India. The learned Chief Justice, who delivered that judgment, had himself been Advocate-General and it was said that he would surely have adverted to the power had he believed himself ever to have possessed it. Similarly, it is contended that Section 91 of the new Civil Procedure Code and analogus sections in the Criminal Procedure Code would never have been enacted had the Advocate-General really possessed all the powers of the English Attorney-General, for in that case there would have been no need of them. It is further pointed out that no form of plaint for an action of this kind is to be found in the old Civil Procedure Code while the new Civil Procedure Code contains one, the inference being that this is an entire! v new departure and not merely a statutory expression of powers which have always existed and been fully recognised. Last, reading Section 44 of-the amended Letters Patent with 3.56 (K) of the Specific Relief Act, it is contended that any such power -as the Advocate-General now claims is expressly barred by the Statute. Ingenious though all these arguments are, I still feel bound by the, dictum of Lord Langdale in Attorney-General v. Pedie (1846) 4 Moore I.A. 190. Their Lordships of the Privy Council in that ease seem to entertain no doubt that as the Kast India Company's Act was remedial, no restricted construction should be placed on Section 111. The concluding portion of that section, Lord- Lang-dale said, was not abridged by any words in its pre-amble. And although as a mere matter of historical jurisprudence I still entertain considerable doubt whether the missing link in the present Advocate-General's lineal descent from the principal law officer of the Company has been supplied, or can be supplied, except by an Act of Parliament, I am prepared to hold, resting on the case of Attorney-General v. Brodie (1846) 4 Moore I.A. 190 that the first, proposition the plaintiff laid before the Court is established, that is, that the Advocate-General represents in this Presidency the Attorney-General in England and has all his powers. The effect of that finding is to considerably widen the field of argument. For, had the Advocate-General's . powers in this respect been restricted to the language and, I think, to the intention of Section 91, I should have had no hesitation in saying that this was not a proper case for the exercise of those powers. But I am now compelled to go more deeply into the question. For, as I have said, the Attorney-General's power in England covers many cases which could not fairly be called public nuisance within the meaning of Section 91. It is not always easy to draw a sharp line of cleavage between his operations in redressing public grievances and abating nuisances. It is easy, for instance, to understand how a monopoly may be a public grievance but it can hardly be a public nuisance. It is also easy to understand how the obstruction of high-ways, harbours and navigable rivers, as well as the pollution of streams may be in strictness, public nuisances as well as public grievances. But there are cases, the classification of which is more difficult. It is, for example, by no means easy to understand how the manufacture of rolling stock by railway company ultra vires of its Act could be either a public nuisance or a public grievance, yet so great A Judge as Sir George Jessel held that it was. On appeal, however, it was held by a majority, James and Bramwell L. JJ., Baggallay L. J. dissenting, that the decision was wrong. Attorney-General v. Great Eastern Railway Company (1876) 11 Ch.D. 449. James L. J., who treated the case very lightly and almost seemed to ridicule the rigid construction Adopted by the Master of the Rolls, held that if it had been ultra vires on the part of the railway company, no such case of public mischief was shown as would entitle the Attorney-General to interfere: the mere fact that a proceeding is ultra vires not being sufficient for that purpose unless injury to the public is shown. Baggallay L. J., on the other hand, held that when a company acts in contravention of its powers, it is the interest of the public that the law should be observed, and the duty of the Attorney-General to enforce it.