Holmwood, J.:— This was a rule calling upon the Municipal Magistrate to show cause why his order, dated the 30th 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 40 feet in height 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 that have been discussed in this case is a purely civil matter.
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 a 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 in sec. 632 of the Municipal Act, Bengal Act III of 1899, 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 defined in sec. 3, cl. 29. Now under that section 11 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. Rash Behari Mullick…Opposite Party.. 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 sec. 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 defined bodies of persons resident in a specified area. The smallest infant residing in its parent's 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 in this view of the matter purely academical.
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 cl. 2 of sec. 632 to make such enquiry 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.
Now the building of a wall, however, high on a man's own property for the purpose of preventing his neighbour from acquiring rights of easement over his land is not in itself a nuisance under the Act. That is a question for the Civil Courts and I wish to carefully guard myself from being thought to derogate in any way from the private rights of ownership in these matters on the mere averment that a private nuisance has been created.
But the findings in this case go beyond that and bring the case strictly within the definition of a quasi-public nuisance as it is defined in the Act. Passing over certain findings which do not concern the question of nuisance as defined in the Act but are purely civil matters, I find that it has been found as a fact on the evidence of the Health Officer of Calcutta and of one of the leading Presidency Surgeons whose testimony is wholly independent and unimpeachable that the wall in question is or may be injurious to health and as it is likely in their opinion to propagate the seeds of consumption and typhoid fever it is unquestionable that it creates a plague spot in the midst of a populous area which commencing with the inhabitants of the adjoining tenements including the Petitioner himself and his family may become a very serious menace and nuisance to the public inhabiting that neighbourhood.
This being so, the wall clearly falls within the definition of a nuisance as defined in sec. 3 of the Act and we may pass over the farther findings that it affects the security of the complainant's building although that also finds some support from the testimony of Mr. Johnstone who was called as an expert by the defence.
On this ground alone I am able to find that the Magistrate had jurisdiction to deal with the matter. But the further question arises whether he has exercised that jurisdiction properly. The only matter which causes the wall to be a nuisance within the meaning of the Act is not its height but the accumulation of filth and want of space to clear the drainage between it and the Opposite Party's house. Now this might conceivably be remedied by other action short of pulling down the wall to a height of 12 ft. and indeed it is difficult to see how the reduction of the wall to such a height gets rid of the nuisance actually found to exist under the Act. It is clear that arches in the lower part of the wall would serve the purpose of cleaning the space behind it and would not interfere with the Petitioner's screening off his premises from the Opposite Party's observation which he is legally entitled to do. I therefore think that the case must go back to the Municipal Magistrate for further consideration and for passing such an order as will abate the nuisance which is found to exist at foot of the wall and behind it without interfering with the Petitioner's right to screen off his premises.
With reference to the insanitary irregularities in the surface of the wall he must further consider whether the Petitioner's offer to plaster and whitewash the surface of the wall opposite the objector's premises will not sufficiently meet the necessities of the case. With these remarks the case is remanded to the lower Court for passing a reasonable and proper order for abating the nuisance.
Fletcher, J.— I agree.
B.C
Case remanded.