JUDGMENT Yorke, J. - This is a second appeal on behalf of the Municipal Board, Lucknow, in a case of a claim by private person in respect of a public nuisance. 2. The plaintiff Mst. Ram Dei is the widow of one Manni Lal who had a house in what is called Bazaza Park Lucknow, about 200 yards away from the Aminabad Park. In Section 7 of the U.P. Municipalities Act (II of 1916) it is laid down that: it shall be the duty of every board to make reasonable provision within the municipality for (c) cleansing public streets, places, and drains, removing noxious vegetation and abating all public nuisances. 3. In order to perform the duties so prescribed the Municipal Board appoints sweepers who collect rubbish from all the lanes and streets of the city. This is collected in a number of receptacles (if not in them then around them), and from them it is removed in motor lorries which take it away to the Municipal refuse dumps. Section 273 (1) of the same Act provides that: the Board may (a) provide receptacles and places for the temporary deposit of offensive matter and rubbish. 4. Acting under this provision the Lucknow Municipal Board provided a receptacle No. 18 in Bazaza Park which it put upon the road way opposite the house of Manni Lal. It is in evidence that the arrangements for this collection and removal of rubbish are that rubbish is brought to the receptacle at this place from 4 A, M. to 7 A. M. and is removed in lorries not later than 7 A. M. It is again collected there between 2 and 4 P. M. and removed not later than 4 P. M. There are some photographs on the record showing the nature of the heaps of rubbish, which is collected. These photographs, when examined with a magnifying glass, show that the rubbish collected is in the main dry rubbish, old baskets straw, paper, so on and so forth, but it is highly probable that along with this rubbish there is often mixed other rubbish of a more offensive nature, such as decaying vegetation or vegetable. The photographs also show that the receptacle which is said 1o be at this place is completely concealed under the heaps of rubbish which are evidently much larger than the receptacle could possibly contain. The photographs also show that the receptacle which is said 1o be at this place is completely concealed under the heaps of rubbish which are evidently much larger than the receptacle could possibly contain. It is in evidence that this system has been in operation for the last 5 years prior to the institution of the present suit. 5. On the 5th August, 1936, Manai Lal served a notice u/s 326 of the Municipalities Act which showed that a representative suit would be filed by the public of the locality, in respect of these daily collections of rubbish at this place. It appears, however, that permission for the filing of such a suit was refused by the Legal Remembrance. Subsequently Manni Lal died, but, his widow the present respondent none the less on the 5th October, 1936, without any fresh notice, filed 3. suit against the Municipal Board alleging that this heaping of rubbish constituted a public nuisance, and claiming that she had suffered special damage and was therefore entitled to relief. It may be noted that in the notice served by Manni Lal the relief's claimed had been (1) a declaration that the stacking of rubbish at this place was a public nuisance, (2) that an injunction should be given against the Municipal Board to deter the Board from stacking rubbish in future, and (3) a decree for damages at the rate of Rs. 22 per mensem from the 10th February, 1936, which was given as the date of discovery of nuisance. 6. The Municipal Board raised a number of defence which gave rise to a number of issues. On these issues the learned Munsif field (1) that there was no public nuisance," (2) that the suit was maintainable because it would be too strict an interpretation of the law to hold that the notice given by the husband was insufficient and the suit therefore not maintainable. That point is no longer contested before me. On issue 4 he held that there was no special damage established by the plaintiff and therefore the suit was not maintainable under the provisions of Section 91 of the Code of Civil Procedure. On issue 5 he held relying on Jai Jai Ram and Others Vs. Janki and Others that as the Board had not exceeded its statutory powers given by Section 273 of the Municipalities Act, the suit was not maintainable. On issue 5 he held relying on Jai Jai Ram and Others Vs. Janki and Others that as the Board had not exceeded its statutory powers given by Section 273 of the Municipalities Act, the suit was not maintainable. On the question of limitation he held that there could be no bar of limitation because the nuisance complained of was a continuing wrong giving rise to a fresh cause of action from day to day. In view of his findings on issues 4 and 5 he dismissed the plaintiffs suit. 7. The learned Civil Judge in appeal came to three findings. First he found that this heap of rubbish amounted to a public nuisance, secondly he held that the plaintiff had suffered special damage and thirdly he held that the Board was not protected by its statutory authority u/s 273 of the Municipalities Act. 8. Before I come to consider these three findings of the learned Civil Judge, it is necessary to note the basis of the plaintiffs claim as stated in the plaint. In paragraph 2 she speaks of the Municipal Board using the road in front of his house as a-depot of rubbish. She then goes on in Para 3 to speak of the daily routine of collecting rubbish as result of which "had smell from it spreads to neighboring houses. Further there is noise from the carts carrying radish from the early part of the morning till 8 in the evening." 9. In paragraph 7 she says, "That sometimes night soil is also mixed in the rubbish" but this point has been given up. In paragraph 8 she says. 10. The above farts constitute a public nuisance and the public health department of the city is thus endangering the health of the citizens." 11. Presumably this was really based on the allegation about night soil. In paragraph 11 the plaintiff goes on to state what special damage she has suffered, and says: The plaintiff has suffered special damage inasmuch as the depot for rubbish is just in front of her house and further the tenant occupying her house left it on account of unsanitary state of the locality, hut on further entreaty by the plaintiff he came back on the reissued rent of Rs. 15 from Rs. 22 a month. 12. 15 from Rs. 22 a month. 12. It is important to note that before the learned Civil Judge Counsel For the plaintiff, appellant of that Court gave up the second of these two grounds "in view of its being a very remote cause of special damage." The plaintiff was therefore left only with one ground of special damage, namely that the depot for rubbish was just in front of her house. 13. Coming now to the incidental findings of the learned Civil Judge, prima facie some of these are apparently findings of fact, and in so far as they are findings of fact they are not assailable in second appeal. The learned Munsif had held that the evidence of the plaintiff's witnesses that there was a bad smell because of this deposit of rubbish was not worthy of credit. The learned Civil Judge on one ground and one only held that these witnesses were worthy of credit, namely because it was most unlikely that all the efforts made by the plaintiff's husband should have been made for the mere fun of them, and without any real grievance. I cannot congratulate the learned Civil Judge on this argument. When all is said and done, it was a question of fact to be decided on the evidence and the general probabilities. His finding was, "on the testimony of the appellant's witnesses I hold that the rubbish complained of in fact does kick out an offensive smell." 14. The learned "Civil Judge went on, however, to make some remarks indicating that there was still a doubt remaining in his mind. He says: In view of the conflicting evidence, however, even if it be held that the heap did not stink it should still be a public nuisance. and he went on to consider how this must necessarily be so. His view was that a huge heap of all sorts of rubbish on a public road at such a place must cause annoyance to every passer by, and that none the less so because there were other similar temporary deposits of rubbish on other roads in the city or because the Indian public being by nature apathetic tolerates it. His view was that a huge heap of all sorts of rubbish on a public road at such a place must cause annoyance to every passer by, and that none the less so because there were other similar temporary deposits of rubbish on other roads in the city or because the Indian public being by nature apathetic tolerates it. He summed it up by saying that the respondent's convenience or benefit must be kept out of consideration for deciding the question whether a regular although temporary, heap of rubbish stacked on a public thoroughfare at a busy and frequented part of the town is or is not a public nuisance. Disagreeing with the trial Court, I hold it to be a public nuisance. 15. The finding of the learned Civil Judge thus seems to be that a regular although temporary heap of rubbish stacked on a public thoroughfare at a busy and frequented part of the town is a public nuisance. It is evident that this is a finding on a point of law, and I need not discuss the question very widely particularly as I am in agreement with this; finding although not on the grounds stated! in the judgment of the learned Civil Judge. For practical purposes the most convenient definition of public nuisance-is that which is found in Section 268 of the Indian Penal Code. That section, provides that: A person is guilty of a public nuisance-who does any act or is guilty of an illegal; omission which causes any common injury, danger, or annoyance to the public or to the people in-general who dwell or occupy property in the vicinity or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. 16. The learned Civil Judge, as it appears-to me, has not really arrived at a clear idea of the ground on which public nuisance can be held to have occurred in the present case. The word "injury" is. 16. The learned Civil Judge, as it appears-to me, has not really arrived at a clear idea of the ground on which public nuisance can be held to have occurred in the present case. The word "injury" is. interpreted in the dictionary as meaning "harm or damage." There being no proof whatever that this temporary heap of rubbish for 3 hours in the morning, and 2 hours in the evening at the end of which time it is all removed, cam cause any harm or damage to the public, the act complained of in the present case' cannot be considered to be a public nuisance on that ground, nor is there any evidence that it cause danger or annoyance to the public generally. The learned Civil Judge is wrong in saying that the fact that the Indian Public is by nature apathetic and therefore tolerates it will make it any the less a nuisance. If the general public is apathetic and tolerates things which one might expect to annoy it then it cannot be said that such an act does cause annoyance to the public or people in general, and indeed there is no such evidence. What is to me most apparent is that such a deposit of rubbish on a public road (or indeed the placing of receptacles on the public road) must necessarily cause obstruction to persons who have occasion to exercise their right as members of the public of proceeding along that road. Such a heap doubtless is-sufficient to prevent two vehicles from passing one another at this point of the road and obstruction must result. In my opinion the learned Civil Judge has rightly said that a regular though temporary heap of rubbish stacked on a public thoroughfare at a busy and frequented part of the town is a public nuisance, but it is so on, the ground that it must necessarily cause obstruction to members of the public It is in the light of this consideration that I have to consider the question of special damage. 17. 17. The law on the question of relief for personal or special damage suffered as a result of a public nuisance has been frequently laid down and it must be established that the plaintiff has suffered' special damage in order that he may be individually entitled to maintain a civil action for such public nuisance, that is to say, he must show that he has suffered some damage more that what the general body of the public had to suffer. 18. After referring to two cases, both of them cases of obstruction to a public Toad, the learned Civil Judge states his finding in the following terms: There can be little doubt that a heap of rubbish must be move obnoxious and objectionable to the person in front of whose house it is stacked than to others. 1 therefore agree with the contention of the learned Counsel for the appellant and hold that the very fact that the complaint of bear lay just in front of the plaintiff's house constituted special damage to her. 19. The only possible comment which can "be made on this remark is that there is no. logical argument leading to the conclusion which is arrived at. In my opinion the conclusion is wrong. It is certainly a fact that there is an obstruction. It may be a fact that the heaps which are put down daily and removed daily from in front of the plaintiffs house Emi some amount of smell, but it is not established that by reason of this smell there is any appreciable discomfort or danger to the occupants of the plaintiffs house. So far from this being the case the plaintiffs chief witness, her own brother-in-law incidentally, who is said to have left the house because of the discomfort caused by the smell, found no difficulty in returning to the house and continuing to live in it when the rent was somewhat reduced. We may infer that in reality there is no particular discomfort caused by the smell and indeed in the light of one's personal experience of the streets in the neighborhood of Aminabad it hardly seem likely that there could have been any appreciable increase. 20. Learned Counsel for the respondent somewhat unwisely invited my attention to the case of Bai Bhicaiji v. Perojshaw Jivanji Kera Walla (1916) 40 Bom. 20. Learned Counsel for the respondent somewhat unwisely invited my attention to the case of Bai Bhicaiji v. Perojshaw Jivanji Kera Walla (1916) 40 Bom. 401, and another case of a not dissimilar nature, Nirmal Chandra Sanyal and Another Vs. Municipal Commissioners, AIR 1936 Cal 707 . In the, latter case the learned District Judge who inspected the locality found that the smell emitting from a hackney carriage stand was not more noxious or disagreeable than the smell emitting from the streets of Pabna generally. In the Bombay case the learned Judge at page 409 remarked that a legal nuisance is rather an evasive shifting and intangible thing, hard to be pinned down by a verbal definition, and quoted the remark of a learned Judge in another case that what would be a nuisance in Belgrade Square would not necessarily he so in Bermondsey. and himself remarked that doubtless what would be a very real nuisance, in a select and refined residential quarter would not be a nuisance in a slum; and what possibly ten percent of the population of Bombay might genuinely feel to be a nuisance would never occur to the minds of ninety percent of the population to be a nuisance at all. 21. He went on to remark: There is probably hardly any part of this city, except specially select residential quarters outside what may be called the native limits, where the bulk of the inhabitants are not daily and hourly exposed to malignant odours and incessant noises. 22. Mutatis mutandis these remarks are not so very inapplicable to the neighborhood of the Bazaza Park". In the light of the conduct of the plaintiff's chief witness it is clear that such smell as temporarily arises from these heaps is not, as I have already indicated, sufficient to be regarded as a public nuisance, and indeed the plaintiff has really given up that contention. In the light of the conduct of the plaintiff's chief witness it is clear that such smell as temporarily arises from these heaps is not, as I have already indicated, sufficient to be regarded as a public nuisance, and indeed the plaintiff has really given up that contention. She founded her case, as I have already stated, on special damage by reduction of rent due to the fact that her tenant, on account of the insanitary state of the surroundings, left the house, but in fact the tenant has not left the house but has come back to it, and in the lower Court the plaintiffs learned Counsel gave up this ground in view of its being a very remote cause of special damage and fell back cm the mere position of the heap of rubbish. I conceive that in these circumstances what the plaintiff did was to fall back on the position of the heap of rubbish regarded -as an obstruction, which in fact was the only point of view from which it could be regarded as constituting a public nuisance. It was for this reason I suppose that the learned Civil Judge referred to the cases of Ram Chandra v. Joti Prasad (1910) 33 All 287 and Muhammad Raza Khan v. Muhammad Askari Khan (1924) 46 All 470 : AIR 1924 All. 599 although he has tried to protect himself by saying that none of these cases was quite analogous. Both these decisions are authorities for the proposition that where by reason of an obstruction in the road way the plaintiff suffers special inconvenience in coming to and going from his house, he is thereby placed in the position of being able to say that he has sustained special damage. Neither of these cases are authorities for the proposition that the mere placing of some obstruction in front of a person's house which does not in any manner impede his coming to or going from his house, and is merely a possible nuisance from some quite different point of view, can be regarded as causing special damage to the plaintiff. Neither of these cases are authorities for the proposition that the mere placing of some obstruction in front of a person's house which does not in any manner impede his coming to or going from his house, and is merely a possible nuisance from some quite different point of view, can be regarded as causing special damage to the plaintiff. In my opinion the finding of the learned Civil Judge that the very fact that the complaint of heap lay just in front of the appellant's house constituted special damage to her is a finding which is bad in law and not capable of being supported from the cases on which he has relied. On this view I am clearly of 'opinion that the plaintiff was not entitled to any relief in the circumstances of the present case and her appeal should have been dismissed by the lower appellate Court. 23. One other point has been raised in appeal by the learned Counsel for the appellant. He has sought to put forward the argument that in view of the provisions of Section 7 and Section 273 the Municipal Board is protected from suit by reason of the fact that it has acted under statutory authority. In this connection the case reported in Nirmal Chandra Sanyal v. Municipal Commissioners, Pabna to which I have referred already is in point.. 24. In that case the learned Judge Tend down the principles, of exemption from Kability coming within this head of statutory power as follows : (i) whenever an act otherwise unlawful' and actionable is expressly authorised by the legislature.. no action would lie against the person who has the statutory authority to do the act, provided it is done without negligence. The statutory authority is to be regarded as statutory indemnity. (ii) The statutory authority and the consequent! statutory indemnity extends not only to the act itself, but to all Us necessary consequences. The test of the necessity of a consequence is the impossibility of avoiding it by the exercise of due care and skill. (iii) The aforesaid two principle of exemption from liability are only 'applicable when the statutory authority is absolute and unconditional. statutory indemnity extends not only to the act itself, but to all Us necessary consequences. The test of the necessity of a consequence is the impossibility of avoiding it by the exercise of due care and skill. (iii) The aforesaid two principle of exemption from liability are only 'applicable when the statutory authority is absolute and unconditional. A good working test is that where the authority to-do an act is imperative, that is where the statute imperatively directs the act to be done, and not permissive, that is merely allows it to Be done, it is to be considered as absolute; if it is merely permissive the authority is prima facie conditional and does not absolve the authorised person doing, the act from liability, if nuisance results from the act. 25. In my opinion it is clear that the authority given to the Municipal Board, by Section 273 read with Section 7 is not absolute. The Municipalities Act merely allows the Board to put up-these receptacles. It follows that the authority is conditional and does not absolve the-Board from liability, if nuisance results-from its act. The learned Civil Judge,, in my opinion, rightly- held that the-respondent was not protected by the provisions of Section 273 of the Municipalities Act. 26. In view, however, of my findings ON the questions of public nuisance and special damage, the defendant's appeal is allowed, the judgment and decree of the lower appellate Court is set aside and the plaintiff's suit dismissed with costs, of all three Courts.