Citation Codes

Equivalent Citations

citation codes

Case Number

Second Appeal No. 594 of 1937.

Advocates

Messrs. K. Rajah Ayyar and C.S Rama Rao Sahib for the Appellant.
Mr. N. Sivaraj for the Respondents.

Judges

Venkataramana Rao, J.

Acts

S. 145 of the District Municipalities Act
City Municipal Act

See more information ...

Smart Summary

Judgment Summary

Factual and Procedural Background

This Second Appeal arose from a suit in which the plaintiff sought an injunction to restrain the defendant, the Municipality, from constructing a public latrine immediately behind the plaintiff's fruitstall in Madura. Both lower Courts found concurrently that the erection of the latrine would constitute a nuisance to the plaintiff and held that the plaintiff was entitled to the relief claimed. The Municipality appealed to the present Court.

The appellant contended that, under the District Municipalities Act, specifically S. 145, the Municipality was empowered to provide and maintain public latrines in proper places and that this statutory empowerment precluded any action against the Municipality. The principal issue before this Court was whether that contention was tenable.

Legal Issues Presented

Whether the concurrent factual finding by the lower Courts that the erection of the latrine would constitute a nuisance could be challenged in this Second Appeal.
Whether S. 145 of the District Municipalities Act (which requires the Council to provide and maintain public latrines "as far as the funds at its disposal may admit" in proper and convenient places) empowers the Municipality to erect a public latrine even if its erection would constitute a nuisance to neighbouring private rights — i.e., whether the statute authorises or gives immunity for what would otherwise be a common-law nuisance.

Arguments of the Parties

Appellant's Arguments

The Municipality, relying on S. 145 of the District Municipalities Act, argued that it is empowered to construct and maintain public latrines in suitable places and that this statutory power precludes an action for nuisance against it.
Counsel for the appellant (Mr. Rajah Ayyar) also relied on a number of precedents to support the contention that statutory powers can, in some circumstances, authorise what would otherwise be a nuisance; he distinguished the language of S. 145 from the language of statutes considered in earlier cases and argued that the wording in the present statute should be construed to permit the Municipality's actions.
Specific reliance was placed on cases including Metropolitan Asylum District v. Hill, London and Brighton Railway Co. v. Truman, Biddulph v. The Vestry of St. James, and Muhammad Mohidin Sait v. The Municipal Commissioners for the City of Madras.

The opinion does not contain a detailed account of the respondent's (plaintiff's) legal arguments beyond the factual finding that the erection would constitute a nuisance and the lower Courts' grant of the relief claimed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Vernon v. Vestry of St. James, Westminster	The principle that a public body is not to be held authorised to commit a nuisance by statute unless that intention appears by express words or necessary implication; private rights are not to be interfered with except by express legislation.	The Court adopted this principle as the starting point for construction of S. 145, holding that mere statutory power to provide conveniences does not, without express words or necessary implication, authorise the creation of a nuisance.
London and Brighton Railway Co. v. Truman	Where the scope of a statute and the acquisition of land are such that the additional accommodation must be regarded as part of the undertaking, the statute may authorise what would otherwise be a nuisance — the acquired land and its use may share the immunity of the principal undertaking.	The Court discussed this decision at length and distinguished it on facts: in that case acquisition of land contiguous to the railway meant the use shared the railway's immunity. The present Act (S. 145) was found not to contain comparable provisions for land acquisition or to show a similar scope.
Metropolitan Asylum District v. Hill	Construction principle: intention of the legislature ascertained from the Act; a statute can be deemed to authorise a nuisance only in limited circumstances (e.g., where a specific building in a specified position is authorised or imperatively directed within an area such that nuisance is inevitable).	The Court relied upon Lord Blackburn's guidance from this case to emphasize that only express or necessarily implied legislative directions can justify authorisation of a nuisance; S. 145 did not meet that threshold.
Biddulph v. The Vestry of St. James, Hanover Square	Consideration of whether the works intended would in point of law create a nuisance; factual determinations as to probability or certainty of nuisance.	The Court regarded the case as distinguishable: in Biddulph the evidence did not warrant a conclusion that the works would certainly or probably create a nuisance; that reasoning did not undermine the present finding of nuisance.
Muhammad Mohidin Sait v. The Municipal Commissioners for the City of Madras	Discussed whether the City Municipal Act afforded statutory immunity for nuisances when the Act authorised acquisition of land for burial and burning grounds and provided compensation and remedies for aggrieved persons.	The Court observed that the Chief Justice in that case found no actionable nuisance on the facts; the Chief Justice also expressed the view that the City Municipal Act might afford immunity because it authorised compulsory acquisition. This Court considered those observations to be obiter and distinguished the present statute, which lacks similar compulsory acquisition provisions for urinals/latrines.

Court's Reasoning and Analysis

The Court's analysis proceeded in the following steps, strictly following the materials and reasoning in the opinion:

Preliminary procedural point: the Court observed that the lower Courts' concurrent finding that the erection of the latrine would constitute a nuisance is a finding of fact and, accordingly, cannot be challenged in a Second Appeal.
Statutory text quoted: S. 145 of the District Municipalities Act was reproduced. It imposes an obligation on the Council to "provide and maintain in proper and convenient places a sufficient number of public latrines" subject to available funds and to cause them to be cleansed and kept in proper order.
Construction principle: the Court adopted the rule from Vernon v. Vestry of St. James that, prima facie, no one is authorised by statute to commit a nuisance unless such authorisation arises by express words or necessary implication. The Court emphasized Cotton, L.J.'s observation that authorisation to provide conveniences does not necessarily or by necessary implication empower the authority to erect them where they would create a nuisance.
Application to S. 145: the Court rejected the appellant's contention that the use of the word "shall" in S. 145 amounted to an express legislative authorisation to commit a nuisance. The Court held that the mere imposition of a duty to provide conveniences does not amount to an intention to authorise interference with private rights in a manner that would create a nuisance.
Examination of relied-on authorities: the Court reviewed the cases cited by the appellant and found none that conflicted with the principle that statutory powers to provide public utilities are subject to the general law against nuisances unless the statute clearly authorises interference with private rights. In particular:

Metropolitan Asylum District v. Hill was read to state that only where a statute authorises a specific use of a building in a specified position which cannot be used without causing nuisance, or imperatively directs construction within an area where nuisance is inevitably the result, can a statute be held to authorise a nuisance. The Court found S. 145 did not fall into these categories.
Muhammad Mohidin Sait was considered: the Court noted that in that case no actionable nuisance was ultimately found on the facts, and that the Chief Justice's view that the City Municipal Act granted statutory immunity relied on provisions (such as S. 392 and S. 458) allowing compulsory acquisition and compensation — features absent from S. 145.
London and Brighton Railway Co. v. Truman was analysed at length: in that case the statute authorised acquisition of land for use contiguous to the railway; their Lordships concluded that, given the scope of the Act and the nature of the acquisition, the use shared the railway's immunity and the statute authorised what would otherwise be a nuisance. The Court held that this reasoning depended upon the particular scope of the statute and the acquisition power, and that those facts were not present under S. 145.

Conclusion of analysis: having regard to the text of S. 145 and the authorities, the Court concluded that S. 145 did not authorise the Municipality to erect the latrine in such a way as to create a nuisance to the plaintiff. The cases relied upon by counsel either did not support the contention on their facts or were distinguishable; where they appeared to support the contention (as in parts of Muhammad Mohidin Sait), those observations were treated as obiter and not determinative.

Holding and Implications

Holding: The Second Appeal fails and is DISMISSED. The Court dismissed the appeal with costs and refused leave to appeal further.

Implications:

The direct effect is that the concurrent findings of the lower Courts — that the erection of the latrine would constitute a nuisance and that the plaintiff was entitled to the relief claimed (an injunction restraining the Municipality from constructing the latrine in the complained-of location) — are sustained by this Court's dismissal of the appeal.
The Court's decision rests on statutory construction principles and the absence in S. 145 of any express words or necessary implication authorising interference with private rights that would result in a nuisance. The judgment emphasizes that statutory powers to provide public conveniences are subject to the general law prohibiting nuisances unless the statute clearly indicates otherwise.
The opinion does not set out a new broad precedent beyond applying established construction principles to the facts; accordingly, there is no indication in the opinion that it establishes a novel rule of law distinct from the authorities cited. The decision's immediate consequence is the maintenance of the injunction and the award of costs against the appellant.

Order: Leave to appeal refused. Appeal dismissed. (N.R.R.)

Show full summary ...

The Madura Municipality Through Its Executive Authority, The Commissioner v. K. Nataraja Pillai And Another

JUDGMENT

This Second Appeal arises out of a suit for an injunction to restrain the defendant-Municipality from constructing a public latrine behind the plaintiff's fruitstall in Madura. Both the lower Courts have concurrently found that the erection of a latrine would constitute a nuisance to the plaintiff and held that the plaintiff was entitled to the relief claimed. Hence this appeal by the Municipality.

The finding that the erection of a latrine is a nuisance to the plaintiff is a finding of fact and cannot therefore be challenged in Second Appeal. The contention of Mr. Rajah Ayyar who appeared for the appellant is that under the District Municipalities Act the Municipality is empowered to construct public latrines in suitable places and S. 145 of that Act confers on them such a right and that no action can lie against them. The question is whether this contention is tenable. S. 145 of the District Municipalities Act runs thus:

“The Council shall, as far as the funds at its disposal may admit, provide and maintain in proper and convenient places a sufficient number of public latrines and shall cause the same to be daily cleansed and kept in proper order.”

The principle that is adopted in construing statutes which empower public bodies to do works of public utility is thus laid down by James, L.J in Vernon v. Vestry of St. James, Westminster(1):

“Prima facie nobody is authorised to commit a nuisance, and nobody is to be held so authorised under an Act of Parliament unless it appears from express words or by necessary implication that the act was to be done or might be done notwithstanding its tending to the creation of a nuisance; if private rights are to be interfered with, they must be interfered with by express legislation.”

The question in that case was whether the erection of a public urinal was a nuisance and whether it was open to the Court to restrain the Vestry of St. James, Westminster, which was a body authorised under an Act of Parliament to provide and maintain urinals in places where they might deem such accommodation to be required, from erecting it. An injunction was granted in that case on the ground that the erection of the urinal would constitute a nuisance so grave and so serious that the neighbours who sought the relief were entitled to the injunction prayed for. Cotton, L.J discussed the question as to when a statute might be deemed to authorise a nuisance. He observed as follows:

“We must look to the whole of the section and see whether it justifies their erecting and maintaining a nuisance. It is impossible to say that an urinal or water-closet must necessarily be a nuisance. If it could be made out that such an erection, wherever placed and however guarded, must of necessity be a nuisance, then it would be true that the Act of Parliament had authorised a nuisance, and the Court could not have interfered; but common-sense tells us that it cannot be said that no water-closet or urinal can possibly be erected without being a nuisance. Therefore the mere fact that an urinal is authorised to be erected does not necessarily or by necessary implication give parliamentary power to do it if it is a nuisance. Power to erect these conveniences is no doubt given to them, but subject to this that they must not exercise it in such a way as to create a nuisance, because the section contains nothing to exempt them from the general law which prevents any one from erecting or maintaining a nuisance.”

The language of the section in that case was that “it shall be lawful in every Vestry and District Board to provide and maintain urinals in situations where they deem such accommodation to be required.” Mr. Rajah Ayyar contended that the language of that section was different from the language of S. 145 of the District Municipalities Act. But I do not think that by the mere use of the word ‘shall’ it was intended that the Municipality was authorised to commit nuisance. It may be noticed that in London and Brighton Railway Co. v. Truman, a case which I shall discuss at length later, the expression used in S. 82 of the Act, 1 Vict. C. cxix, was “it shall be lawful”. Their Lordships of the Privy Council in that case held that S. 82 authorised a nuisance having regard to the scope of the Act. Thus from the mere use of the words ‘shall’ and ‘it shall not be lawful’ it does not necessarily follow that the statute intended in the one case to authorise a nuisance and in the other, not. What was the intention of the Legislature in any particular Act is a question of the construction of the Act as pointed out by Lord Blackburn in Metropolitan Asylum District v. Hill(2). It cannot be contended as pointed out by Cotton, L.J that the erection of a urinal wherever placed must of necessity be a nuisance. The fact that an obligation was imposed upon the Municipality to provide and maintain public urinals in convenient places would not empower them to erect urinals in such a way as to create a nuisance.

Mr. Rajah Ayyar relied on a number of cases which do not lay down anything in conflict with this principle. One of the cases relied on by him was Metropolitan Asylum District v. Hill and he laid stress on the observations of Lord Watson as to the distinction between permissive and imperative statutes. But the learned Lord himself explained when a statute can be deemed to authorise a nuisance. At p. 212 he remarks thus:

“I do not think that the Legislature can be held to have sanctioned that which is a nuisance at common law, except in the case where it has authorised a certain use of a specific building in a specified position, which cannot be so used without occasioning nuisance, or in the case where the particular plan or locality not being prescribed, it has imperatively directed that a building shall be provided within a certain area and so used, it being an obvious or established fact that nuisance must be the result. In the latter case the onus of proving that the creation of a nuisance will be the inevitable result of carrying out the directions of the Legislature, lies upon the persons seeking to justify the nuisance.”

It is not contended before me that the inevitable result of carrying out the provisions of S. 145 will be always the creation of a nuisance. Mr. Rajah Ayyar also relied upon Biddulph v. The Vestry of St. James, Hanover Square but that case is distinguishable because the finding there was that from the evidence as it stood it did not appear to be certain or probable that the works intended by the defendants in that case would create in point of law a nuisance. Considerable reliance was placed by Mr. Rajah Ayyar on Muhammad Mohidin Sait v. The Municipal Commissioners for the City of Madras(3) and particularly on certain observations of the learned Chief Justice in that case. The finding in that case was that no actionable nuisance had been proved. Moore, J. rested his decision solely on this ground and remarked thus:

“Taking the evidence therefore as a whole, it must, in my opinion, be held that no nuisance whatever has been caused to the plaintiff by the burial ground. There is some evidence that the burning ground is a source of nuisance to a certain extent to any one occupying the plaintiff's premises. The plaintiff in order to be entitled to either an injunction or damages must show that the injury suffered by him is not merely nominal but real and substantial. This he has in my opinion failed to prove.”

The learned Chief Justice also found that no actionable nuisance had been proved but he went on to observe that even if it were proved, the City Municipal Act afforded the defendant Municipality a statutory immunity from liability. In arriving at this conclusion he relied upon the language of S. 392 of the Act which empowered the Municipality to acquire lands for burial and burning grounds and on S. 458 of the Act which gave a right of action to any person aggrieved by the failure of the commissioners to perform a duty imposed upon them by the Act. He also relied on two other sections of the Act which gave compensation for the land acquired and also for the injury done in pursuance of the power exercised under the Act. Distinguishing the case in Metropolitan Asylum District v. Hill the learned Chief Justice remarked thus:

“The present case may also be distinguished on the ground that the Legislature in the present case clearly contemplated and authorised some interference with private rights of property since S. 392 empowers the Commissioners to acquire land compulsorily for the purpose of burning grounds. In the hospital case the statute gave no power to acquire land compulsorily.” (The italics are mine.)

In some cases the power to acquire land was taken as an indication that the Legislature authorised interference with private rights. No such power of acquisition is given under the District Municipalities Act for the purpose of erecting urinals. The learned Chief Justice was of the opinion that the case before him was governed by London and Brighton Railway Co. v. Truman. But on facts that case was distinguishable from the case in Muhammad Mohidin Sait v. The Municipal Commissioners for the City of Madras and observations of the learned Chief Justice which seem to indicate that it is not, if I may say so with respect, do not appear to be correct. In the case in London and Brighton Railway Co. v. Truman the Railway Company was authorised to acquire 50 acres of land for the purpose of erecting cattle sheds. S. 82 of the Act authorised them to purchase lands in such places as shall be deemed eligible and that section was construed by the Earl of Selborne thus:

“Although no exact site or legal limits may be prescribed by the terms of the authority for the acquisition of that land, yet being directly subsidiary to the general traffic of the line, it follows from the fresh nature of the purposes authorised that it must be land contiguous to the railway or some of its stations the local situation of the whole line of railway being within certain limits of deviation defined by the Act.” (Italics are mine.)

Having given this interpretation, viz., that the acquisition contemplated was within a limited area, the learned Lord held that the statute authorised the nuisance and he summed up his conclusion thus:

“When acquired it must become part of the railway and its appurtenances in exactly the same way as if similar loading and unloading places had been made upon lands taken when the railway was first made, whether by compulsion or by agreement. It would be (as it seems to me) inconsistent and unreasonable to suppose that the Legislature intended land so acquired, for such purposes, to be separated, as to the legal conditions of its tenure and use for those purposes, from the rest of the undertaking with which it would have become incorporated, and as to which the rule, with what is authorised is not actionable, is acknowledged to prevail.”

Lord Hals bury also expressed himself to a similar effect:

“It seems hardly to admit of argument that the statute intended such additional accommodation, when provided, to form part of and to be used with the railway, and, if so, to share the immunity which the Railway, in its original construction would have enjoyed from actions levelled at its use. It would be strange, indeed, if the Legislature could be supposed to have authorised the railway to commit a nuisance up to a certain point, to have provided machinery for extending the railway and its use beyond that point, and yet to have allowed the further user to be open to an action to restrain its use.” (The italics are mine.)

Thus their Lordships having regard to the scope of the Act thought that the contemplated acquisition must share the same immunity which frees a railway company from liability for any commission of nuisance in the use of the functions with which the statute has entrusted them. The following passage from Lord Halsbury's judgment makes this clear:

“It cannot now be doubted that a Railway Company constituted for the purpose of carrying passengers or goods or cattle are protected in the use of the functions with which parliament has entrusted them, if the use they make of those functions necessarily involves the creation of what would otherwise be a nuisance at common law.”

It is therefore doubtful whether the view taken by the learned Chief Justice in Muhammad Mohidin Sait v. The Municipal Commissioners for the City of Madras that the City Municipal Act authorised the nuisance can be justified on the strength of the decision in London and Brighton Railway Co. v. Truman. However the observations are obiter.

It is unnecessary for me to refer to the other cases cited by Mr. Rajah Ayyar as they do not carry the matter further. The view of the learned District Judge is correct and the Second Appeal accordingly fails and is dismissed with costs

Leave to appeal refused.

Appeal dismissed.

N.R.R

The Madura Municipal... v. K. Nataraja Pillai A...