PANDYA MANUBHAI MULJIBHAI ALIAS HIMATLAL Vs. UMRETH TOWN MUNICIPALITY

JUDGEMENT

(1.) The short but interesting question of law that arises in this Second Appeal is whether a member of the public is entitled without proof of special damage to maintain an action for removal of an encroachment on a public street without obtaining the consent of the Advocate General under section 91 of the Code of Civil Procedure. The plaintiffs are Patidars residing in the town of Umreth and are Managers of a Dharamshala belonging to the Patidar community, which abuts on a public street situate in what is known as Bordi Falia in Umreth. According to the plaintiffs since times immemorial the Patidars of the town of Umreth have been taking their carts along the said public street and using the said public street for passing and repassing. On 6th September 1954 however defendant No. 2 who owns a house with its back abutting on the said public street obtained the permission of defendant No. 1 being the Municipality for the town of Umreth and after obtaining such permission plastered the back wall of the house thereby encroaching about 3 on the said public street and also constructed an over-hanging step which constituted a further encroachment on the said public street to the extent of about 9. The plaintiffs alleged that as a result of this act on the part of defendant No. 2 irreparable injury was caused to them to the user of the Dharamshala by the Patidars and to the right of way of bullock's carts etc. along the said public street. The plaintiffs therefore filed a suit against the defendants for a mandatory injunction directing defendant No. 2 to remove the encroachment caused by the plastering of the wall as also the over-hanging step constructed by him at the back of the house and also for a prohibitory injunction restraining defendant No. 2 from putting up any construction or over-hanging step which would cause obstruction to the exercise of the right of way of the plaintiffs. Though the reliefs sought were against defendant No. 2 defendant No. 1 was also impleaded as party defendant to the suit since the plastering of the wall and the putting up of the over-hanging step had been done by defendant No 2 after securing the requisite permission of defendant No. 1. The suit was resisted by both the defendants. Various contentions of a preliminary nature were taken on behalf of defendant No. 1 but they do not survive for consideration in view of the fact that the suit as against defendant No. 1 has been dismissed as a result of the decree passed by the learned trial Judge and confirmed by the learned Assistant Judge in appeal and no second appeal has been filed against that part of the decree on behalf of the plaintiffs. Defendant No. 2 also raised various points in answer to the suit one of which was that the suit was not maintainable by the plaintiffs inasmuch as it was filed by them without obtaining the consent of the Advocate General under sec. 91 of the Code of Civil Procedure. The issue arising on this point was along with other issues tried as a preliminary issue. The learned trial Judge came to the conclusion that the encroachment complained of by the plaintiffs being a public nuisance and no special damage being proved the plaintiffs were not entitled to maintain the suit complaining of the encroachment without the consent of the Advocate General under section 91 of the Code of Civil Procedure. The learned trial Judge in this view of the matter dismissed the suit with costs. The plaintiffs thereupon preferred an appeal in the Court of the District Judge Nadiad. The learned Assistant Judge agreed with the learned trial Judge to this extent namely that no special damage was alleged or proved by the plaintiffs but he differed from the learned trial Judge on the main question involved in the determination of the preliminary issue and held following a decision of the Madras High Court in Munusami v. Kuppusami ( A. I. R. 1939 Madras 691 ) that an individual member of the public was entitled to maintain a suit for establishing a public right of way and for removal of an obstruction which constituted a public nuisance without obtaining the sanction of the Advocate General under section 91 of the Code of Civil Procedure and that the plaintiffs were therefore entitled to maintain the suit. The learned Assistant Judge accordingly allowed the appeal against defendant No. 2 set aside the judgment and decree passed by the learned trial Judge in favour of defendant No. 2 and remanded the suit to the trial Court for being disposed of according to law after hearing the parties on the question as to whether the hanging step constituted an obstruction on the said public street. Defendant No. 2 thereupon preferred the present Second Appeal in this Court.

(2.) The only question debated before me in this appeal was whether the plaintiffs as members of the public were entitled to maintain the present suit without the consent of the Advocate General under sec. 91 of the Code of Civil Procedure. It was common ground between the parties that the suit was filed by the plaintiffs as members of the public who were using the said public street since times immemorial for the purpose of passing and repassing as also for the purpose of taking their carts and that there was no special damage caused to the plaintiffs as a result of the plastering of the wall and the construction of the over-hanging step by defendant No. 2. In the absence of special damage the question was were the plaintiffs entitled to maintain the action, which was essentially an action for removal of encroachment on the said public street. The encroachment on the said public street was clearly a public nuisance and Mr. B. G. Thakore learned Advocate appearing on behalf of defendant No. 2 therefore contended that the plaintiffs were not entitled to maintain an action complaining of such public nuisance unless they obtained consent of the Advocate General under sec. 91 of the Code of Civil Procedure. Mr. B. G. Thakore rested this contention on the provisions of sec. 91 of the Code of Civil Procedure. Now sec. 91 of the Code of Civil Procedure embodies the well-known rule that in the case of a public nuisance no member of the public can maintain an action unless he can show that he has suffered special damage. A public nuisance is not by itself an actionable wrong and it falls within the law of torts only in so far as it may in any particular case constitute some form of tort also as for example by reason of some special and peculiar damage which may cause to an individual. As and when a public nuisance causes some special and peculiar damage to an individual then by reason of such damage, which it causes to the individual it becomes a tort action able at his suit. (See Salmond on Torts Thirteenth Edition 181 Merely because a public nuisance exists a member of the public does not get a right of action for its removal. It is only if some special damage has been caused to him that he gets a cause of action, which he can enforce in a Court of law. This of course does not mean that there is no remedy against a public nuisance. The remedy is provided by section 91 which declares that 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. But it must be remembered that a public nuisance may also affect private individual rights and when a public nuisance affects private individual rights the individual member of the public whose rights are so affected can certainly maintain an action for vindication of such rights. In such a case it can be no answer to the individual member of the public seeking to litigate his rights that the act complained of being a public nuisance he cannot maintain the suit but that he must proceed under sec. 91 of the Code of Civil Procedure. It is elementary that every right has a remedy and once a right is established it can always be enforced in a Court of law unless of course the statute creating the right provides a special remedy for enforcing it. If therefore any individual and personal rights of h member of the public are violated by an act which constitutes a public nuisance the individual member of the public whose rights are so violated can always maintain an action at law and enforce such rights. To such an action sec. 91 of the Code of Civil Procedure cannot afford any answer. It is therefore clear that if in the present case the plaintiffs can show that some right of theirs was violated by the act of defendant No. 2 in plastering the wall and putting up the over-banging step they must in the absence of any other countervailing circumstances be held entitled to maintain the suit.

(3.) Now Mr. B. G. Thakore on behalf of defendant No. 2 contended that no violation of any rights of the plaintiffs was alleged in the plaint and that it must therefore be held in limine that the suit at the instance of the plaintiffs was not maintainable The argument was that no infringement of any rights of the plaintiffs having been alleged all that was complained of was the existence of a public nuisance and the plaintiffs were therefore not entitled to maintain the suit without the consent of the Advocate General under section 91 of the Code of Civil Procedure. This contention of Mr. B. G. Thakore is in my opinion not well-founded and does not appear to be borne out by the plaint. In the plaint it was specifically alleged by the plaintiffs that the plaintiffs and other Patidars had been passing and repassing and taking their carts on the said public street since times immemorial. The plaintiffs then referred to the encroachment caused by defendant No. 2 and said that as a result of this encroachment irreparable injury had been caused to the plaintiffs to the user of the Dharamshala by the Patidars and to the right of way for bullock carts etc. After setting out this complaint in the body of the plaint the plaintiffs prayed that defendant No 2 should be directed to remove the encroachment already made and should also be restrained from putting up any construction or over-hanging step which might cause obstruction to the right of way of the plaintiffs. It is therefore clear that the plaintiffs did complain in the plaint of the violation of their individual and personal right of way over the said public street such right of way being not only to pass and repass but also to take their carts over the said public street and sought to enforce it by a mandatory injunction directing removal of the encroachment made by defendant No. 2 and a prohibitory injunction restraining the making of any future encroachment which might obstruct the exercise of such right of way. Since the suit was a suit for enforcement of the individual and personal rights of the plaintiffs it is clear that the suit was maintainable and did not fall within the rule embodied in sec. 91 of the Code of Civil Procedure.