SURENDRA KUMAR BASU Vs. DISTRICT BOARD

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff, and it arises out of a suit commenced by him for removal of an alleged encroachment, made by defendant 1, the District Board of Nadia, upon a public thoroughfare in front of plaintiff's premises. The public road is shown as plot No. 203 in the C.S. Map of Kriahnagar. The; defendant District Board have their office in plot No. 206. They put up a wire fencing on the southern side of the office premises and thereby encroached upon a portion of the public road on the immediate south of which stands the residential house of the plaintiff. The Krishnagar Municipality which was made a party defendant, did not take any steps against the District Board, and the plaintiff brought this suit on the allegation that his rights as a rate-payer and as a member of the public were infringed by the encroachment of the District Board, which deprived him of the use of the full width of the public road.

(2.) Both the Courts below have dismissed the plaintiff's suit. It has been held by the Sub- Judge who heard the appeal, that there has been an encroachment made by defendant 1 upon the public road to the extent of 2 cottas 5 ch. as found by the pleader commissioner, but the suit was dismissed on the ground that it was not maintainable at the instance of the plaintiff without proof of special damage. The Sub-Judge further expressed his opinion that the proper course for the plaintiff to follow was to bring a representative suit in conformity with the provisions of Order 1, Rule 8, Civil P.C., and if a suit of that character was brought the necessity of proving special damage might have been obviated. The propriety of this decision has been challenged before us in this second appeal and Mr. Basu who appears for the plaintiff-appellant has contended before us that the decision of the Judicial Committee in Manzar Hasan V/s. Muhammad Zaman has now placed it beyond doubt, that it is not necessary for an individual member of the public to allege and prove special damage to sustain a suit commenced by him in respect of a public nuisance. It has further been argued that the lower appellate Court was wrong in holding that the remedy of the plaintiff lay in suit brought under Order 1, Rule 8, Civil P.C., and his last contention is that in any event, on the facts admitted and proved the Courts below ought to have held that the plaintiff made out a case of special damage.

(3.) I will examine these contentions one after another. It is not disputed that in the present case the plaintiff seeks declaration and injunction in respect of a public nuisance. According to the findings of the Courts below, there was an encroachment by the defendant District Board, upon the public road, which had the effect of withdrawing a part of the highway from the use of the public. Under the English Common Law, a public nuisance is an indictable misdemeanour; criminal proceedings are also sanctioned by particular statutes in particular oases. It is, however, a settled principle of English law, which has come down from very ancient time that a private individual has no right of action in respect of a public nuisance, unless he can show that he has sustained some special damage over and above that inflicted upon the public at large; the object being to avoid multiplicity of litigation Iveson V/s. Moore (1699) 1 Ld. Baym 486; Winterbottom V/s. Lord Derby (1867) 2 Ex. 316 and Vandar Pant v. Mayfair Hotel Co. (1930) 1 Ch. 138. This rule regarding special damage was followed by the different High Courts in India long before Section 91 came into the Civil Procedure Code. As early as in 1869, Sir Barnes Peacock C.J., thus laid down the law in Baroda Prosad v. Gorachand ( 69) 12 W.B. 160: We think it is clear that this suit will not lie. The plaintiff sues defendants for obstructing a public road without showing that he has sustained any particular inconvenience in consequence of the 1 obstruction. If he can maintain this suit, any member of the public can do so, and the defendant may be ruined by innumerable actions by persons who have not sustained a farthing of damage.