Suit filed for creating public nuisance without sanction of Advocate

This is an appeal by the first defendant in the trial Court, in a suit by two plaintiffs, for a declaration that the property encroached upon by the first defendant was part of a public street vesting in the second defendant Panchayat Board, and for a mandatory injunction, directing the removal of this obstruction. Very briefly stated, the first defendant (appellant) resisted this action on the following grounds. He claimed that he had put up the masonry constructions only within the limits of his own property. Alternatively, he claimed that if there was an encroachment, a licence could be granted to him by the officers of the Panchayat Board, and that the new construction did not cause any inconvenience to the public or hindrance to traffic ; in this view, the plaintiffs had no right to file the suit.

Both the Courts below, found upon the merits, that the property in respect of which the suit was filed was undoubtedly part of the public street, and not within the limits of the private property of the appellant. Both the Courts also found that the encroachment was a masonry construction which was liable to be removed, as it narrowed the street, was an unjustified encroachment, and obstructed the use of the street by the public. The Courts further found that there could be no question of a permit being granted by the Panchayat Board, or to be so granted, authorising the continuance of such encroachment. Admittedly, any such permit could be granted only for some temporary construction such as pandal and not for any permanent masonry construction blocking up a street or part of a street.

The learned counsel for the first defendant-appellant is unable to challenge the concurrent findings of fact upon which the suit was decreed. Indeed, upon this aspect, there would appear to be very little scope for any argument on behalf of the appellant. But the ground is pressed before me that the action falls within the scope of section 91 of the Code of Civil Procedure, and that the suit is bad for lack of sanction in writing by the Advocate-General.

Upon very similar facts, the matter was twice considered previously by this Court. Firstly, it was considered by Satyanarayana Rao, J., in some detail, in Subbamma v. Narayanamurthi1 . The learned Judge was there concerned with a conflict in case-law between the views of Wadsworth, J., in Muthuswami v. Kuppuswami2, and certain other decisions of other Courts, and the learned Judge came to the conclusion that the decision of Wadsworth, J., should be approved and followed and not the view taken by the Calcutta and Patna High Courts. I am not now particularly concerned with this aspect of the decision. But in the later part of the decision, the learned Judge (Satyanarayana Rao, J.) also preferred to rest his decision upon another tangible ground, namely, that infringements of the rights of the resident of a village in such matter as a pathway or a right of way through a street by such obstructions, ‘cannot be deemed to constitute public nuisance within the meaning of section 91, Civil Procedure Code.‘ Raghava Rao, J. in Murugesa Mudaliar v. Arunagiri Aludaliar3, came to the same conclusion, namely, that infringement of the rights of the residents of a village in respect of a public street did not constitute a public nuisance, and hence that the sanction of the Advocate-General under section 91, Civil Procedure Code, was not required. Horwill, J., in Appayya v. Narasimhalu4, held that, even if the subject-matter of the proceeding did constitute public nuisance within the scope of section 91, a mere failure to obtain the permission of the Advocate-General would not affect the maintainability of the suit, if the other side did not take any objection at the earliest stage. In the present case, admittedly, the objection has not been taken at any stage prior to this Second Appeal.

Hence, it appears to me to be clear that the Second Appeal fails, and ought to be dismissed, upon the precedents cited