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2015 DIGILAW 329 (GAU)

Alhaj Mujibur Rahman Laskar v. Surajit Das Gupta

2015-03-18

MANOJIT BHUYAN

body2015
1. Heard M.H.Laskar, learned counsel for the appellant as well as Mr.S.K.Ghosh, learned counsel for the respondents. 2. The appellant as plaintiff filed Title Suit No.15 of 2010 praying for a decree for removal of nuisance by dismantling the illegal and unauthorised RCC Latrine Tank constructed at the entrance of the homestead of the plaintiff as well as for compensation. The short facts leading to the filing of the suit is that the appellant/plaintiff is a resident of Hailakandi Town, Ward No.4 within the Hailakandi Municipal Board. The appellant's neighbour i.e.defendant no.1 had dug pit adjacent to the only entrance path to the appellant/plaintiff's residence with a view to construct an RCC Latrine Tank. To stop the process, the appellant/plaintiff filed the written complaint on 29.12.2009 before the defendant no.2 i.e. Hailakandi Municipal Board, followed by a notice under Section 326 of the Assam Municipal Act, 1956. According to the appellant/plaintiff, by the time the said notice was issued, the construction of the RCC Latrine Tank had been completed. As no remedial action had been taken by the said defendant no.2, a polluting atmosphere was created. In such a circumstance, the appellant/plaintiff was constrained to institute the suit. The respondent/defendant nos. 1 and 2 filed individual written statements denying the averments made in the plaint and stating that the appellant/plaintiff is in no way affected by the construction of the said RCC Latrine Tank. According to respondent no.1, he had filed petition seeking permission for construction of the said RCC Latrine Tank and to that effect had also deposited Rs.1000/- in the Cash Branch of the Hailakandi Municipal Board and construction had commenced only after deposit of the said money. The respondent/defendant no.1 also averred that the other inhabitants had never objected to the construction. In so far as the respondent/defendant no. 2 is concerned, the statement and averments made in the plaint were denied while admitting the fact that although permission was applied for, the same was pending till the time of filing of the written statement. 3. The learned Trial Court framed as many as four Issues which are as follows: “ 1. Is there any cause of action for the suit? 2. Whether the RCC latrine tank constructed by the defendant No.1 which is adjacent to the only entrance path of the homestead of the plaintiff has caused discomfort and inconvenience in the locality? 3. 3. The learned Trial Court framed as many as four Issues which are as follows: “ 1. Is there any cause of action for the suit? 2. Whether the RCC latrine tank constructed by the defendant No.1 which is adjacent to the only entrance path of the homestead of the plaintiff has caused discomfort and inconvenience in the locality? 3. Whether the RCC latrine tank constructed by the defendant No.1 is illegal and unauthorised? 4. To what relief(s) the plaintiff is entitled for?” 4. In respect of Issue No.3 the Trial Court held that the construction of the RCC latrine tank was without consent of the Hailakandi Municipal Board, which is in violation of the mandatory provisions of the Act, particularly Section 197 of the Assam Municipal Act, 1956. At the same time, in respect of Issue No.2 the learned Trial Court held that due to subsequent construction of Septic Tank by the respondent/defendant no.1 and further no steps having been taken by the appellant/plaintiff pursuant to order dated 8.6.2011 in Petition No.685/20 dated 12.5.2011 allowing local inspection by an Advocate Commissioner, the problem with regard to discomfort and inconvenience has been solved and as such the cause of nuisance did not exist. On this finding the Trial Court held that the appellant/plaintiff is not entitled to any relief claimed despite the Latrine tank having been constructed in violation of the provisions of the Statute. 5. Being aggrieved, the appellant/plaintiff filed Title Appeal No.11/2012 and the First Appellate Court while concurring with the judgment and decree of the Trial Court also held that in view of the provisions under Section 174(2) of the Assam Municipal Act, the application seeking permission filed by the respondent/defendant no.1 must be deemed to have been sanctioned by the Hailakandi Municipal Board. Having held that the appellant/plaintiff had failed to establish that the respondent/defendant no.1 had constructed the RCC latrine tank without consent of Hailakandi Municipal Board, the First Appellate Court did not interfere with the judgment and decree of the learned Trial Court and accordingly dismissed the appeal on contest. 6. Before this Court, the Second Appeal was admitted for hearing on 19.3.2014 on the following substantial questions of law: “1. Whether the suit of the plaintiff is barred under Section 91 of the Code of Civil Procedure? 2. 6. Before this Court, the Second Appeal was admitted for hearing on 19.3.2014 on the following substantial questions of law: “1. Whether the suit of the plaintiff is barred under Section 91 of the Code of Civil Procedure? 2. Whether the learned Courts below committed error in not deciding the claim of damage and compensation of the plaintiff? 3. Whether the findings of the learned courts below that the tank was Constructed keeping in view the scientific aspect as to safety is perverse?” 7. Looking at the questions so formulated, the answer to the substantial question no.1 is of vital importance and the same would go to decide the fate of this appeal. Be it also stated that question nos. 2 and 3 do not per se involve substantial question of law requiring an answer from this Court. 8. At the very outset, Mr. S.K.Ghosh, learned counsel for the respondent submits that going by the fact and circumstances of the case the suit itself is barred in view of the provisions under Section 91 of the Code of Civil Procedure and to that extent relies upon the decision in A.C.Muthiah -vs- Board of Control for Cricket in India and another in Civil Appeal No.3753 of 2011 rendered by the Hon'ble Supreme Court of India. According to Mr. S.K.Ghosh, learned counsel, without compliance of the provisions under Section 91 of the Code of Civil Procedure Code in respect of a case of a public nuisance, the suit filed by the appellant is not maintainable at the very threshold. On merits, Mr. Ghosh submits there is no pleading in the plaint to demonstrate nuisance and as such there being no foundation of nuisance, it had suffered right decision by the Courts below. 9. On the other hand, Mr. M.H.Laskar, learned counsel for the appellant submits that in so for as Section 91 of the C.P.C. is concerned, the same pertains to public nuisance, which is not so in the instant case and, even otherwise, sub-section (2) of Section 91 do not prohibit the right to file a suit. Mr. Laskar while maintaining his stand relies upon the decisions in (i) Ku. Mr. Laskar while maintaining his stand relies upon the decisions in (i) Ku. Aamina Saadat Ali,-vs- Municipal Board, Bahraich, reported in AIR 1980 Allahabad 376 (ii) Dr.Ram Baj Singh, -vs-Babulal, reported in AIR 1982 Allahabad 285 and (iii) Suhelkhan Khudyarkhan and another -vs- State of Maharashtra & another, reported in (2009) 5 SCC 586 . The said decisions have been relied upon for the proposition that Section 91 does not limit or otherwise affect any right of suit which may exist independently of its provisions. In a proceeding where any person has suffered special damage on account of public nuisance he can file a suit without taking resort to Section 91 of the Code of Civil Procedure. However, the fact as to whether the person concerned has suffered special damage would depend on the facts and circumstances of each case. According to Mr.M.H. Laskar and as can be had from the decision in Suhelkhan Khudyarkhan (supra), nuisance are two kinds i.e. (i) public nuisance, and (ii) private nuisance. Unlike public nuisance, private nuisance affects some individuals as distinguished from the public at a large. The remedies are of two kinds- civil and criminal. The remedy under the civil law are of two kinds-(i) one under Section 91 CPC whereunder a suit would lie and the plaintiffs need not prove that they have sustained any special damage. The second remedy is a suit by a private individual for a special damage suffered by him. In the instant facts and circumstances, it is the case of the appellant/ plaintiff that he has suffered special damage on account of the illegal action on the part of the respondents/ defendants. 10. Admittedly, the Trial Court found that the construction of the RCC Latrine tank was done without permission under Section 197 of the Assam Municipal Act, 1956. In the same breath also held that there was no nuisance committed by the respondent/defendant no.1. 11. The finding and decision of the First Appellate Court in holding that by virtue of provisions of Section 174(2) of the Assam Municipal Act, 1956 consent was deemed to have been given by the Hailakandi Municipal Board for construction of the RCC Latrine Tank requires due examination. 11. The finding and decision of the First Appellate Court in holding that by virtue of provisions of Section 174(2) of the Assam Municipal Act, 1956 consent was deemed to have been given by the Hailakandi Municipal Board for construction of the RCC Latrine Tank requires due examination. The said finding proceeded without any basis as to the applicability of Section 174(2) of the said Act, inasmuch as, there is no application on record filed by the respondent/defendant no.1 seeking permission for construction of the said RCC Latrine tank. Whether the expression “building” appearing in Section 174 of the Act would encompass a “Latrine” remains to be authoritatively decided. Be that as it may, in the instant case the provisions under Section 197 of the said Act squarely applies and, therefore, no discussion as to the interpretation of “building” is called for. The First Appellate Court, committed manifest error in recording findings on the basis of non-existent material evidence. The findings on Issue Nos.3 and 2 by the First Appellate Court is wholly perverse and not sustainable in law. 12. It is the pleaded case of the appellant/plaintiff, supported by documentary evidence, that the construction of the RCC Latrine Tank have caused nuisance and disturbance to the congenial atmosphere, causing mental pain and agony to the appellant/ plaintiff in his otherwise normal life including that of his family members. The procedure followed by the Appellate Court in deciding the Issue No.2 warrants interference as the same was rendered by ignoring pleaded facts and evidence on record. 13. Although this Court cannot re-appreciate evidence especially when both the courts below have rendered concurrent findings on the Issues, however, this is a case where substantial error had been committed resulting in error in decision. The findings of the First Appellate Court are perverse and the same cannot survive non-interference by this Court. Re-appreciation of facts and points of law as is being done in this appeal do not fall within the prohibited domain of re-appreciation of evidence in the peculiar facts and circumstances of the case. 14. The submission of Mr. S.K.Ghosh, learned counsel for the respondent with regard to maintainability of the suit in view of Section 91 of the C.P.C. as well as his reliance upon the case of A.C.Muthiah (supra) do not come to his aid to deny relief to the appellant/plaintiff. 15. 14. The submission of Mr. S.K.Ghosh, learned counsel for the respondent with regard to maintainability of the suit in view of Section 91 of the C.P.C. as well as his reliance upon the case of A.C.Muthiah (supra) do not come to his aid to deny relief to the appellant/plaintiff. 15. In view of what has been discussed above, the judgment dated 22.5.2013 and decree dated 28.5.2013 passed by the First Appellate Court in Title Appeal No.11 of 2012 is set aside and the matter is remanded to the First Appellate Court to hear the case afresh on the point whether the in view of the bar under Section 197 of the Assam Municipal Act, 1956 and that of Section 174(2) of the said Act, the appellant/plaintiff can be denied the reliefs prayed for. The First Appellate Court is directed to dispose of the matter as expeditiously as possible, preferably within a period of three months from the date of first appearance of the parties on the basis of the evidence already on record. The parties are directed to appear before the First Appellate Court on 20.4.2015. Registry shall send back the case records along with a copy of this judgment so as to reach the First Appellate Court before the date fixed for appearance of the parties. 16. This appeal stands allowed in terms of the above, however, without any order as to costs.