VALAN PAKKIRI TARAGAN Vs. SUBBAYAN SAMBAN

JUDGEMENT

(1.) In Satku Valadhadir Sausare v. Ibraim Aga Valad Mirza Aga (1877) I.L.R. 2 B. 457 the facts are not set out in the report, and all that appears is that the plaint averred obstruction of the plaintiffs in their use of the highway by the defendants, and also an order of the Magistrate under Section 518 (now Section 144) of the Code of Criminal Procedure prohibiting the plaintiffs from using the highway in the particular way to which the defendants took objection. Sir Michael Westropp, C.J., after reviewing the English decisions as to the right of an individual member of the public to maintain an action for the obstruction of a public thoroughfare and showing that no such action would he without proof of special damage, dismissed the plaintiffs suit on that ground. The obstruction in the English cases cited consisted of interference with the surface of the highway which interfered with the right of the public to pass and repass freely. The same principle would, no doubt, apply if the defendants obstructed the public by assembling on the highway for their own purposes, as for the purpose of holding a market. That also would be a public nuisance and the rule as to special damage would apply. If, however, the defendants assembled to prevent the plaintiffs from exercising their lawful right to pass along the highway in a particular manner, that would appear not to be a case of public nuisance but of trespass or threatened trespass to the plaintiffs, and in trespass an action lies without proof of special damage. That, indeed, is the general rule, the rule as to special damage in cases of public nuisance being the exception. The Bombay High Court has recently taken this view in Basalingappa Pareppa v. Dharmappa Basappa (1910) I.L.R. 34 Bom 571 and has refused to apply the decision in Satku Valad Kadir Sausare v. Ibrahim Aga Valad Mirza Aga (1877) I.L.R. 2 Bom. 457 a case like this. In that case the plaintiffs sued to establish their right to go in procession with a temple car along a particular road which was denied by the defendants. The lower Appellate Court thought that the plaintiffs had the right they claimed, but dismissed their suit as no special damage was shown, following Satku Valad Kadir Sausare v. Ibrahim Aga Valad Mirza Aga (1877) I.L.R. 2 Bom. 457. The High Court reversed the decrees of the lower Courts and gave the plaintiffs a declaration and an injunction, observing, in the course of their judgment, that the suit was not for the removal of a public nuisance but for a declaration of the right of an individual community to use the public road, a suit which they held to lie without proof of special damage. This case in my opinion was rightly decided and should be followed.

(2.) The case is stronger both on principle and authority where, in addition to the plaintiff s right to use the road in a particular manner being challenged by the defendants, the plaintiffs have been prohibited from exercising it under Section 144 Criminal Procedure Code. In deciding in a case like this how to exercise the power given him by the section to direct any person to abstain from a certain act " if he considers that such direction is likely to prevent or tends to prevent obstruction, annoyance or injury or risk of obstruction, annoyance or injury or a disturbance of the public tranquility or a riot or an affray" the Magistrate must be governed largely, though not exclusively, by the opinion he forms as to the legal rights of the contending parties. He is not the proper Judge of these rights, and all that he can do is summarily and on materials which are necessarily imperfect to form an opinion that one side or the other has made out a prima facie case of right and to give due weight to that opinion in deciding what order to pass. , The effect, however, of the order which the Magistrate is empowered to pass by the section in the general interest is that for two months it becomes a punishable offence for the party to do an act which he may be in a position to establish his right to do before a competent tribunal. Further, the order may be extended by the Government, and, even if not extended, must necessarily form a precedent for the passing of a similar order whenever the circumstances recur.

(3.) In these circumstances, even if there were any rule of law prohibiting persons from establishing by suit their rights to use the road in a particular manner against those who challenge it unless they could show special damage, and in my opinion there is no such rule, I should still hold that the statutory interference under the order with the legal rights of the party without any adjudication upon them would of itself give him a cause of action in a Civil Court for the establishment of his right so as to prevent the order being continued by Government or renewed on a future occasion owing to a misapprehension of his rights if not so established. This would appear to be the result arrived in the recent decisions of the Court which are referred to in the order of reference, except in W. Kalmatappa v. Joish Narayana Bhat (1917) 42. I.C. 337 which should be overruled and also in Mannada Mudali v. Nallaya Goundan (1909) I.L.R. 82 Mad. 527. In the earlier cases which are referred to in the order, the Court seems to have been hampered by the decision in Saiku Valad Kadir Sausare v. Ibrahim Aga Valad Mirza Aga (1877) I.L.R. 2 Bom. 457 and to have avoided the difficulty by holding that in the particular case the illegal or improper order of the Magistrate constituted the cause of action. In some of the cases it is not easy to see wherein the illegality or impropriety consisted, and this consideration has been rightly discarded in later cases such as in Mannada Mudali v. Nallaya Goundan (1909) I.L.R. 82 Mad. 527 which should, I think, be followed.