KHURSHED HUSNAIN Vs. SECRETARY OF STATE

JUDGEMENT

(1.) The action out of which this appeal arises was brought by the plaintiffs against the Secretary of State claiming a mandatory injunction to remove a certain bandh which runs parallel to the railway line on the Futwah Road south of Patna. The bandh was erected for the purpose of preventing the Patna City and its bazar from being inundated by the water by reason of the overflow of the Poonpoon River. It is alleged by the plaintiff that the Government erected this bandh and in addition placed automatic shutters in the culverts under the road upon which the bandh was erected with the result that in times of flood the water was prevented from draining away to the north and was held up thus flooding the District in which the plaintiff's house is situate. I adjourned the hearing of the case for the purpose of hearing the Advocates engaged in the case on the evidence in the case. I wish to observe that my jurisdiction with regard to the evidence is strictly limited by the provisions of Section 103 and I can only decide such question on fact as have been left undecided by the Judge in the Court below or have been wrongly determined by the Court by reason of illegality, omission, error or defect such as is referred to in Sub-section (1) of Section 100 Civil Procedure Code. 1 more particularly referred to the evidence in order to determine the question of damage which has been alleged by the plaintiffs and which according to the judgment of the Judge in the Court below had not been established. It will be seen, however, that this question does not strictly arise having regard to the view I now take of the matter.

(2.) I have now heard the parties on the evidence and I do not propose to reserve my judgment as no useful purpose would be served thereby. I have come to a very clear conclusion with regard to the matter There is one observation I would like to make, however, and that is with regard to the defence. It appears that the plain tiffs, with the leave of the Court, administered certain interrogatories, the purpose of the interrogatories being to obtain from the defendants particulars of their defence The plaintiffs desired to know under what authority the defendants erected this bandh. It was erected by the District Board at the instigation of Government and it is admitted that in this regard the District Board acted" as the Agent for Government. We have therefore to dismiss from our consideration the District Board who have been made se party to this action. It appears that the bandh was erected in pursuance of a Resolution of a Flood Committee; under what statute or under what authority of law the Government had to appoint a Flood Committee, it does not appear. I find myself in great difficulty in ascertaining exactly what the position of Government was in this respect as no information with regard to this matter was given in the answers to the interrogatories by the Government. The plaintiff was therefore left in a position of uncertainty as regards the authority of Government in this matter. It was not suggested that the Government's action was an Act of State and perhaps could not be having regard to the law laid down in the learned judgment of Sir Barnes Peacock in Peninsular and Oriental Steam Navigation Company V/s. Secretary of State. 5 B.H.C.R. App. 1 : Bournes A.O.C. 166. But I must observe that the uncertain attitude which has been taken has made the case all the more difficult to decide. This is possibly one of the reasons for the rather irrelevant considerations into which the Judges in the Courts below entered.

(3.) The learned Subordinate Judge first of all discussed in great length whether a private individual's interest can be sacrificed for the good of the public, and then comes to the conclusion that the question does not arise. Amongst other infirmities the judgment of the learned Judge in the Court below suffers from the fact that the Judge not only inspected the locus in quo but comes to his own conclusion on what he saw a procedure which Was wholly illegal. Not content with that he introduces his own experience into the judgment as also the discussions he had with the Public Works Officers. But there was one reason why the appeal failed in the Court below and the plaintiffs claim was dismissed, I suppose it was (although it is not very clear) that the plaintiffs had not proved special damage The judgment of the trial Court is equally unsustainable for reasons which are not dissimilar from the ones I have expressed. I merely make this observation for the purpose of pointing out that neither of, the Courts below seems fully to appreciate what the issues were and therefore the matter becomes one of considerable difficulty for me to decide in this Court. Had the Government sec up the position that they were the proprietors of the khas mahal of the northern part of this District which is under discussion in this case, the defence would have been complete unices it had been shown by the plaintiffs that they had a prescriptive right to drain the water coming on to their land in times of floods through certain well defined channels. But that is not the defence and therefore is not the position under consideration in this appeal.