Decided on February 16,1966


Referred Judgements :-



V. B. RAJU - (1.)This appeal is by the Bhuj Municipality against which an injunction is granted restraining it from constructing Public latrines on the suit site which is admittedly a municipal property. The lower Courts have failed to go into the question whether a legal duty was cast upon the Municipality to construct public latrines. Sec. 68 of the Bombay Municipal Boroughs Act 1925 provides that it shall be the duty of every municipality to make reasonable and adequate provision for amongst other things the construction of latrines privies urinals and drains. When this is the legal duty of the Bhuj Municipality it cannot be said that all legal redress for damage resulting therefrom is precluded provided every reasonable precaution has been taken to avoid detrimental consequences. It is true that the duty cast is subject to make reasonable and adequate provision. Simply because it is the duty of the Municipality to provide for urinals it does not mean that it should provide urinals in every street. The words reasonable and adequate go with the word provision. That is why the word reasonable is used. The contention of the learned counsel that the construction of latrines on the suit site would not be reasonable does not arise because as I observed the word reasonable goes with the word provision. The law does not require that the construction should be reasonable whatever the expression reasonable construction might mean. It is not for Judges or Courts to go into the question whether reasonable provision has been made by the Municipality or not. I entirely agree with the following observations in Flemings Law of Torts Second Edition on p. 386:-
When a statute has authorised a particular activity or user of land which inevitable involves the creation of a nuisance all legal redress for damage resulting therefrom is precluded provided every reasonable precaution has been taken to avoid detrimental consequences. The burden of proving the inevitability of a nuisance lies on the defendant who may discharge it by showing that all reasonable care and skill in the light of contemporary scientific knowledge has been observed in connection with the enterprise. To this extent the conflict between private rights and public powers is resolved in favour of a qualified protection for the latter Thus occupiers of houses adjoining a railway set up under statutory authority have been denied redress for vibrations caused by passing trains and the noise of cattle traffic in a station yard.
The absence of any compensation provision in the authorising statute is immaterial if the legalisation of the enterprise is clearly expressed. But in order to furnish a defence authority to commit the nuisance must be expressed or necessarily implied. This is so when the Legislature has either authorised a certain use on a particular site which will inevitably constitute a nuisance or when it has imperatively directed a use within a certain area where a nuisance cannot be avoided. But if the statute is merely permissive and not mandatory and the grantee has a wide choice as to area the discretion must be exercised in strict conformity with private rights. Again statutory power is sometimes conferred with a proviso retaining liability for nuisance in which case it is immaterial that the power has been exercised with due diligence. In the case before me it is an obligatory duty cast upon the Municipality to provide latrines and when the law itself casts an obligation on the Municipality to construct latrines the Construction of latrines by the Municipality cannot amount to a public nuisance unless reasonable precautions have not been taken by the Municipality to avoid detrimental consequences. At this stage when no latrines have been constructed there can be no injunction against the Municipality. It is only if the Municipality does not take reasonable precautions to avoid detrimental consequences that an injunction can be given.
(2.)The learned counsel for the respondent has cited Talakhand v. Dhoraji Municipality A.I.R. 1955 Saurashtra 63 But that is not the case where the Legislature has cast an obligation on the Municipality to do the thing that was under discussion namely the construction of a superstructure in a public street. Therefore the observations made in that case are not applicable to the present case.
(3.)I therefore allow the appeal and dismiss the suit. Appeal allowed

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