KHAGENDRA NATH MITTER Vs. BHUPENDRA NARAIN DUTT

JUDGEMENT

(1.) This was a Rule calling upon the Municipal Magistrate to show cause why his order, dated the 30 July 1910, should not be set aside on the ground that it was passed without jurisdiction. The order is in respect of a wall nearly forty feet high, which has been erected by the petitioner between his premises and the adjoining premises of the complainant, 79 and 80, Bechu Chatterjee's Street. There was a wall to mark the boundary on approximately the same site before, but this was only a low wall; and met with no objection. It is contended by the complainant that the new wall has partly encroached on his land, but with this we have nothing to do, as that, like many other questions K that have been discussed in this case, is a purely civil matter.

(2.) I may say, at the outset, that I most strongly 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 have obtained by statute for the necessary protection of the public and the enforcement of proper sanitation. A great deal has been said in this case about the distinction between a public and private nuisance. A public nuisance is one that affects the King's subjects at large, or a considerable portion of them, such as the inhabitants of a town. A private nuisance, on the other hand, is one that affects only one person, or a certain determinate number of persons, and is only amenable to the civil law. But m - Section 632 of the Municipal Act (Bengal, III of 1899), the Chairman, or any person who resides in Calcutta, is empowered to complain to a Magistrate of the existence of any nuisance, and this must be taken to be any nuisance under the Act as denned in Section 3, Clause (29). Now, under that section, "nuisance includes any act, omission, place or thing which causes, or is likely to cause, injury, danger, annoyance or offence to the sense of sight, smell or hearing, or which is, or may be, dangerous to life, or injurious to health or property." This definition is wider than the Common Law definition of "public nuisance," but does not certainly extend to the inclusion of all private nuisances as was sought to be argued on the authority of Bhagwan Das V/s. Rank Behari Mullick (1909) 14 C.W.N. 637. I do not think that the learned Judges who decided that case intended to lay down any such general proposition as that which has found its way into the head-note of the case, of course without the revision of the learned Judges themselves. They are, dealing with a particular case, where an act of private ownership, primarily only creating a private nuisance, produces results which bring it within the definition of a nuisance in Section 3 of the Act. The word "includes" shows that such acts are rendered amenable to Municipal Law as opposed to Penal Law over and above what is generally understood as a "public nuisance." The acts themselves are in the nature of public nuisances, but they may only affect the lives and property of individuals or denned bodies of persons resident in a specified area. The smallest infant residing in its parents house within the jurisdiction of the (Corporation of Calcutta has a right to have its life and health protected against any act of any person which is, or may be, a danger to it, and the distinction between a "private" and "public nuisance" becomes m this view of the matter purely academical.

(3.) The question is, has a nuisance been created by any act of the petitioner that falls within the definition as given in the statute. If it has, the Municipal Magistrate clearly has jurisdiction under Clause (2) of Section 632 to make such inquiry as he thinks necessary, and, if he sees fit, to direct the Chairman to exercise any of the powers vested in him by the Act, or to take such measures as to such Magistrate may seem reasonable and practicable for preventing, abating, diminishing or remedying such nuisance.