Joy Krushna Mohanty and Others vs Emperor

Rowland, J.—The petitioners have been convicted by a Magistrate of the Third Class u/s 290, I.P.C., and each sentenced to pay a fine of Rs. 15. An appeal against their conviction has been dismissed and they have moved this Court in revision on the ground that the acts found to have been done by them did not come within the definition of a public nuisance in Section 268, I.P.C., and are not punishable u/s 290. The appellate judgment is very brief and I will state the facts a little more fully. The Mahanadi river, as it nears the sea, divides into a delta of channels which form loops and branches which fork and rejoin eventually entering the Bay of Bengal.

The water of these mouths of the Mahanadi is said to be tidal for some miles inland from the sea. One of these branches passes along the western boundary of villages Kusum, bar and Sundara bearing thana Nos. 171 and 178 in police station Kakatpur of Puri District. West of the stream which is called Padapada at about that point is village No. 177 Barjanga and further west and north are other villages. To the east of this stream there used to be an embankment running roughly from north to south which prevented flood water from spreading over the lands of villages Kusumbar and Sundara. The embankment is said to have been very old, but within recent years it was breached by heavy flood.

The date of this breach is stated by the prosecution to have been in 1933 and stated by the defence as in 1937. Now the accused, who are residents of Kusumbar and Sundara, wished to repair the breach in the old embankment and this was objected to by the inhabitants of the villages on the west of the stream who said that the flood water ought to escape eastwards through the breach so as to rellieve the flooding of the fields in their villages.

In this state of things there was a proceeding u/s 144, Criminal P.C., as it was reported that there was a danger of a breach of the peace. The Magistrate passed an order restraining the people of Sundara from re-erecting the old bund.

Subsequently they constructed an embankment on a retired line further east which had the effect of closing the breach. For this they have been prosecuted and convicted u/s 290, I.P.C. It has been found that the new bund tends to lead to the accumulation of flood water and damage to crops on the fields of 30 to 40 villages situate west of the stream in the same manner as used to result in the time of the old bund before it was breached. The trial Court held that in the circumstances the accused were guilt of of committing a public nuisance. The definition of the offence is in Section 268; the act complained of must be one which causes any common injury, danger or annoyance to the public or the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance, to person who may have occasion to use any public right. The District Magistrate considered that the act was an offence under the first part of the Section. It is argued in revision that any injury which the villagers of Barjanga and other villages may suffer is not caused by the bund but by flood water. This argument does not I think affect the question, for any damage which is caused will be due to the conjunction of two causes, the existence of the water and the existence of the bund. It is next contended that the nuisance, if any, is of a private and not public nature.

The act does not cause injury to the people in general who dwell or occupy property in the vicinity. It does not injure persons residing all round the site on which the bund is created but the persons who reside and have property to the west.

Among the examples of cases decided under the Sections, it is to be noticed that hardly any reported decisions are traceable which deal with cases of encroachment or obstruction in water channels. Two decisions of the Calcutta High Court are reported, namely, Jugal Das Dalai v. Queen-Empress (1893) 20 Cal 665 and In the matter of Umesh Chandra Kar (1887) 14 Cal 656. Both these were cases of alleged obstruction to the navigation channels in tidal navigable rivers; and the decision turned on whether the right of navigation which is a public right, had been obstructed. That is to say, they are decisions on the second part of the definition in Section 268, which it is not suggested is applicable here. The question is whether the first part of the Section applies and this is to be determined on a reading of the Section itself.

The attempt to bring such an act as the erection of an embankment on one''s own land within the scope of the definition in Section 268 and within the mischief of Section 290 seems to be a novel one; and it is not unreasonably suggested that if these Sections were really applicable, it was to be expected that they would have been used before. The case, in its essentials, is a common one. The riparian owner of land on one bank of a river throws up an embankment on his own land to protect his fields from flood : and this results in accumulation of water on the fields of the owners of land on the other side of the river. Such cases frequently give rise to litigation in which the parties have their respective rights tried out in the Civil Court. That is to say, ordinarily speaking the rights of parties in a matter of this kind are considered to be private rights, and the Courts ordinarily deal with them as such; the issues commonly deal with such questions as rights of easement and similar rights.

If that is their nature, we must bear in mind that by Section 81, Penal Code,

nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm if it is done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.

Of course, this Section is of a general nature; whereas the Explanation to Section 268 that "a common nuisance is not excused on the ground that it causes some convenience or advantage" is a special provision dealing with a particular subject. If the two provisions are in apparent conflict the special provision will prevail being treated as an exception to the more general one. We have therefore to see whether the embankment causes a common injury to the public in the vicinity. The familiar types of nuisance cases such as a tannery by its stink, or some kinds of machinery by their din, create an annoyance whose intensity increases as one gets nearer to them : it is the nearest neighbours who are most aggrieved. But the people who live or own property nearest to this embankment are not aggrieved at all; they are benefited by protection from flood. The persons aggrieved are persons further off, beyond the other, the western bank of the stream. It is said they are more numerous than the persons benefited by the embankment; but that does not seem to be the test. What the Sections are aimed at is general annoyance or injury to persons in the vicinity; and it is difficult to hold that this is established when no annoyance or injury is caused to the persons in the immediate vicinity.

I do not therefore think that an embankment of this kind even if it tends to cause injury to some owners of property can be described as a public nuisance. In Ratan Lal''s Law of Crime in the commentary on Section 268 at p. 624 (Edn. 14) it is stated on the authority of English decisions that

no prescriptive right can be acquired to maintain, and no length of time can legalize, a public nuisance. Though 20 years'' user may bind the right of an individual, yet the public have a right to demand the suppression of a nuisance, though of long standing.

Let us then consider for a moment the rights of parties, at the time when the old bund stood. The Advocate-General was unable to assert confidently that before the old bund was washed away any member of the public could have taken action to abate the nuisance without being successfully met by a plea of prescriptive right. The lands on the west of the river may or may not have the right to discharge their flood water over the lands to the east, i.e., in the direction of Sundara and Kusumbar; but if they have, it would seem to be a private right, capable of being lost by lapse of time. That being so, my view is that what was done does not fall within the definition of a public nuisance so as to be punishable u/s 290, Penal Code. If it was necessary to prosecute the accused, it would seem that the proper Section to have utilized was Section 76, Bengal Embankment Act 1882.

I shall express no opinion whether the petitioners have committed an offence under that Section because that case was not set up by the prosecution and the Section contains various ingredients to the presence or absence of which attention and evidence were not directed at the trial. It is enough to say that I am of opinion that the conviction of the petitioners under the Section which has been applied by the Magistrate cannot stand and it is hereby set aside and the fines are to be refunded.