BRIJBALA PRASAD Vs. PATNA MUNICIPAL CORPORATION

JUDGEMENT

(1.) THIS is a Second Appeal by the plaintiffs from the decision of the Additional Subordinate Judge Patna, dated 10 -9 -1952, by which he, in reversal of the decision of the Munsif of the same place dated dismissed their suit with costs.

(2.) THE plaintiffs appellants are the residents Mosalahpur Hat, Ward No. 36, in the town of Patna and are rate -payees of the Patna Municipal Corporation. The Patna City Municipality was the defendant. Now it has been substituted by the Patna Municipal Corporation. In this action the plaintiffs claimed a nominal damage of Re 1 on account of nuisance derived from the accumulation of filth and sewage matters of various kinds and stagnant water in the drain due to the negligence of the defendant in letting the drain remain un -repaired and unattended to. The houses of the plaintiffs abut on a public lane bearing plot 1881 to the adjacent cast which emanates from a road on the north and joins a Nahar (canal) comprised in plots 1282 and 1915 to the South. To the immediate east of this lane there is a pucca municipal drain, which is sufficiently wide and deep running along -side the lane from North to South and emptying itself in the aforesaid Nahar. This is an implant drain running in continuation, of another drain which drains off several Mahallas of the town. Untreated sewage, faith and rubbish of the town are carried northward through this drain and are discharged into the Nahar. The case made out by the plaintiffs is that duo to the negligence of the defendant the drain has been damaged at several places obstructing the free flow of water into the Kahar and further at the point where the drain falls into the Nahar it has silted up with the result that the level at that place has risen higher than the level of the drain itself. The canal and the drain have not been desalted fur several years and have not been repaired with the result that there is accumulation of stagnant water, full of refuse, sewage and filth emitting foul smell and being a sort of nursery for growth of germs and is, therefore, a menace to the sanitation of the locality and consequently the health of the people. The plaintiffs' real ground of complaint is that the sewerage work has gone out of repairs and, therefore, does not allow free flow of the sewage and filth of the locality causing nuisance, and it is alleged that the noxious and offensive effluvia amount to a nuisance and are injurious to the health of the people of the locality and in fact have caused diseases, bodily pains, mental worry and torture, and the defendant in spite of repeated requests and reminders has failed to maintain the drain and the Nahar in proper order so as to permit free flow of the water and filth. The plaintiffs alleged that they were entitled to damage from the defendant, but they have assessed the damage at Re. 1 only.

(3.) BOTH the Courts have concurrently held that notice under S. 377 of the Bihar and Orissa Municipal Act was duly served. They have further held that the drain and the Nahar were constructed by the defendant and they are completely out of repairs. They have further held that this has resulted from the non -performance by the Corporation of its duty to maintain the drainage channel in proper state of repairs. There is accumulation of filth, rubbish and water, so much so that during rains the drain water overflows on the road and people have to wade through it in going to and coming from their houses. In the opinion of both of them this has given rise to nuisance. Both of them, however, differ on the question of the liability of the Corporation. In the opinion of the learned Munsif this non -repair and consequential nuisance amounted to misfeasance on the part of the defendant, and therefore it was liable in damages to the plaintiffs. He accordingly decreed the suit. The learned Subordinate Judge, however, differed from him and held that the present nuisance resulted from non -feasance for which the Corporation is not liable. He accordingly dismissed the suit.