The main legal point established in the judgment is that public bodies are not authorized to commit a nuisance unless expressly permitted by legislation.

Venkataramana Rao, J.

1. This Second Appeal arises out of a suit for an injunction to restrain the defendant Municipality from constructing a public latrine behind the plaintiffs fruit stall 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.

2. 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 Aiyar who appeared for the appellant is that under the District Municipalities Act the Municipality is empowered to construct public latrines in suitable places and Section 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. Section 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.

3. 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 (1879) 16 Ch. D 449 at 466:

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....

4. 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 authorize 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 away 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.

5. The language of the section in that case was that:

It shall be lawful for every Vestry and District Board to provide and maintain urinals in situations where they deem such accommodation to be required.

6. Mr. Rajah Aiyar contended that the language of that section was different from the language of Section 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 authoriz