RAMGHULAM KHATIK Vs. RAMKHELAWAN RAM

JUDGEMENT

(1.) This is an appeal by defendants 1 to 4 in an action brought by the plaintiffs in which they claimed a declaration as regards the rights of the public to use a certain well, also that the public had a right of way over seven dhurs of land appertaining to the well. They sought also recovery of possession after demolition of the wall erected by the defendants which the plaintiffs claimed to be an obstruction to his right of user. The case in the Court below was held to be maintainable in spite of the fact that the provisions of Order 1, Rule 8, Civil P.C., had not been complied with, and also in spite of the fact that the plaintiffs failed either to allege or prove special damage. In my judgment, the case is disposed of on the authority of the decision which has not been referred to at the Bar by either party. Before dealing with that authority I would like to make some observation regarding the decision in Mandakinee Debee V/s. Basantakumaree Debee, , where two learned Judges of the Calcutta High Court are reported to have held that: Any individual member of the public has the right to maintain a suit for removal of obstruction of a public highway, if his right of passage through it is obstructed, without proving special damage.

(2.) If the learned Judges intended to hold that a single member of the public might bring an action, without the consent of the Advocate-General and without proving special damage, in respect of a public nuisance, I most respectfully disagree with them. A very long line of decisions in India has established the proposition that the law with regard to this matter in India is the same as in England; and, indeed in my judgment, it would be quite impossible to hold a contrary view having regard to the provisions of Section 91, Civil P.C., which, by necessary implication states that to be the position. Had the facts of that case been brought to the notice of the learned Judges of the Calcutta High Court, they would have seen (specially in the Patna case) that this Court has not laid down any proposition which is not in conformity with the law as laid down by a large number of decisions of the Indian High Courts, and it would have been observed that the decision of their Lordships of the Judicial Committee of the Privy Council in Manzur Hasan V/s. Muhammad Zaman, , did not (as it is suggested) reverse the decision of the Indian High Courts to the effect that an action with regard to a public nuisance to be maintained, must establish special damage, or be brought under the provisions of Section 91, Civil P.C.

(3.) There Lord Dunedin, delivering the judgment of their Lordships of the Privy Council, and referring to a number of cases, accepted the Madras view as against the Bombay view on a very limited question relating to the conduct of religious processions through the streets and over the public highway, and it is with regard to that matter and that matter alone that their Lordships decision was directed in the case in Manzur Hasan V/s. Muhammad Zaman, . If the matter ever comes up for decision before their Lordships of the Privy Council, I have no doubt that it will be pointed out that their decision was limited to the narrower and not to the wider question whether an action with regard to a public nuisance could be maintained without the proof of special damage. I would add that every one of the decisions to which their Lordships of the Privy Council referred, namely, the decisions in Satku Kadir V/s. Ibrahim Aga, (1877) 2 Bom 457, Kazi Sujaudin V/s. Madhavdas, (1894) 18 Bom 693, Baslingappa V/s. Dharmappa, (1910) 34 Bom 571 and Mohammad Abdul Hafiz V/s. Latif Hosein, (1897) 24 Cal 524, related expressly to religious processions and not to what I describe as the wider question . In my judgment the law in India is precisely the same in this regard as it is in England and it does not depend on the technical question of whether in the circumstances of the case an indictment could be maintained. Technical objections of that kind do not obtain in India. But the main principle upon which this question is to be discussed and upon which the whole matter rests is that where all members of the public have suffered inconvenience or damage, an action by an individual will not lie excepting as indicated by Section 91, Civil P.C. The law in England in this respect has never been altered, and with regard to the case in hand the principle laid down in the well-known case in Harrop V/s. Hirst, (1868) 4 Ex 43, applies.