Khurshed Husnain and Others vs Secretary of State and Another

Wort, J.—The action out of which this appeal arises was brought by the plaintiffs against the Secretary of State claiming a mandatory injunction to remove a certain bandh which runs parallel to the railway line on the Futwah Road south of Patna. The bandh was erected for the purpose of preventing the Patna City and its bazar from being inundated by the water by reason of the overflow of the Poonpoon River. It is alleged by the plaintiff that the Government erected this bandh and in addition placed automatic shutters in the culverts under the road upon which the bandh was erected with the result that in times of flood the water was prevented from draining away to the north and was held up thus flooding the District in which the plaintiff''s house is situate. I adjourned the hearing of the case for the purpose of hearing the Advocates engaged in the case on the evidence in the case. I wish to observe that my jurisdiction with regard to the evidence is strictly limited by the provisions of Section 103 and I can only decide such question on fact as have been left undecided by the Judge in the Court below or have been wrongly determined by the Court by reason of illegality, omission, error or defect such as is referred to in Sub-section (1) of Section 100 Civil Procedure Code. 1 more particularly referred to the evidence in order to determine the question of damage which has been alleged by the plaintiffs and which according to the judgment of the Judge in the Court below had not been established. It will be seen, however, that this question does not strictly arise having regard to the view I now take of the matter.

I have now heard the parties on the evidence and I do not propose to reserve my judgment as no useful purpose would be served thereby. I have come to a very clear conclusion with regard to the matter There is one observation I would like to make, however, and that is with regard to the defence. It appears that the plain tiffs, with the leave of the Court, administered certain interrogatories, the purpose of the interrogatories being to obtain from the defendants particulars of their defence The plaintiffs desired to know under what authority the defendants erected this bandh. It was erected by the District Board at the instigation of Government and it is admitted that in this regard the District Board acted" as the Agent for Government. We have therefore to dismiss from our consideration the District Board who have been made se party to this action. It appears that the bandh was erected in pursuance of a Resolution of a Flood Committee; under what statute or under what authority of law the Government had to appoint a Flood Committee, it does not appear. I find myself in great difficulty in ascertaining exactly what the position of Government was in this respect as no information with regard to this matter was given in the answers to the interrogatories by the Government. The plaintiff was therefore left in a position of uncertainty as regards the authority of Government in this matter. It was not suggested that the Government''s action was an Act of State and perhaps could not be having regard to the law laid down in the learned judgment of Sir Barnes Peacock in Peninsular and Oriental Steam Navigation Company v. Secretary of State. 5 B.H.C.R. App. 1 : Bournes A.O.C. 166. But I must observe that the uncertain attitude which has been taken has made the case all the more difficult to decide. This is possibly one of the reasons for the rather irrelevant considerations into which the Judges in the Courts below entered.

The learned Subordinate Judge first of all discussed in great length whether a private individual''s interest can be sacrificed for the good of the public, and then comes to the conclusion that the question does not arise. Amongst other infirmities the judgment of the learned Judge in the Court below suffers from the fact that the Judge not only inspected the locus in quo but comes to his own conclusion on what he saw a procedure which Was wholly illegal. Not content with that he introduces his own experience into the judgment as also the discussions he had with the Public Works Officers. But there was one reason why the appeal failed in the Court below and the plaintiffs'' claim was dismissed, I suppose it was (although it is not very clear) that the plaintiffs had not proved special damage The judgment of the trial Court is equally unsustainable for reasons which are not dissimilar from the ones I have expressed. I merely make this observation for the purpose of pointing out that neither of, the Courts below seems fully to appreciate what the issues were and therefore the matter becomes one of considerable difficulty for me to decide in this Court. Had the Government sec up the position that they were the proprietors of the khas mahal of the northern part of this District which is under discussion in this case, the defence would have been complete unices it had been shown by the plaintiffs that they had a prescriptive right to drain the water coming on to their land in times of floods through certain well defined channels. But that is not the defence and therefore is not the position under consideration in this appeal.

The learned Government Pleader, Mr. Sinha, who appears on behalf of the Secretary of State, however, contends that quite apart from the defective defence the plaintiffs disclosed no cause of action but for a reason different from that given in the Court below. A great deal of the evidence is irrelevant and it is rather difficult to ascertain'' exactly what the position of the matter is. As far as I can understand the position, as found by the Judge in the Court below, after reading the evidence bearing on the questions I have to determine. I think it is as follows. Before dealing with the case I must deal with one aspect of the question which I have just slated and which was discussed in the Court below and in this appeal. It was contended by the defence in the Court below that as the plaintiffs had not proved special damage and having not established special damage and not having proceeded u/s 91, Civil Procedure Code, their action would not lie. Whether the action was for a public or private nuisance, is a matter which is very material. One of the tests by which to distinguish a public from a private nuisance in England is whether an indictment lies. That test is inapplicable in India. So far as this case is concerned, in order to decide whether the action of Government created a public or private nuisance, the following considerations may be noted. It can be said that the difference between a public and private nuisance is that in regard to the former the rights which aid common to all His Majesty''s subjects have been infringed, generally speaking such rights are unconnected in any way with possession or title to immovable properly. A private nuisance on the other hand is one which affects a particular section of the community : those who come particularly; within the scope of its operation. In most cases the former relates to the user of public highways. In my judgment quite clearly in this case what is complained of by the plaintiffs is the private nuisance. It is a limited area in the first instance which is Affected by the acts of the defendants and, in any event, even supposing the facts establish the opposite view, in the circumstances of this case I have no hesitation in coming to the conclusion that the plaintiffs have proved sufficient damages to bring themselves within the rule which lays down that for a private individual to establish a cause of action with regard to a public nuisance, special damage has to be proved. The Courts below have in my judgment misunderstood this matter.

Special damage is used in two different senses. With regard to actions based upon tort, damages may be general or special. General damages are those which although they can be estimated and are unliquidated, they cannot be measured with arithmetical exactness whereas special damages are those which a plaintiff has suffered and which can be measured with accuracy and generally are those expenses to which the plaintiff has been put as a result of the acts complained of. The expression "special damage" used in connection with nuisance is that damage which an individual has suffered over and above the inconvenience met with by other members of the public. And in this case the mere fact that Mr. Khurshed Husnain and the other plaintiffs in the action did not give any details of the" damage which they suffered in no way detracts from their right to succeed in this action if their success or failure depended upon that point. Apart from such general questions there was no question put in cross-examination which would in any way disprove the plaintiff''s evidence, that they had suffered damage to the extent of a few hundred rupees by reason of their sugarcane crops being inundated by the flood water. The learned Judge in the Court below in my judgment misconceived the law with regard to this matter. Shortly stated the witness went into the box and established the fact that the plaintiffs had suffered damage to that extent and there was no serious cross-examination on that question. Lack of details is not a ground for refusing to accept the plaintiff''s statement when it is not a matter of the credibility of the witness, which it certainly was not in his case as will be seen, from the observations of the Judge in the Court below. I do not propose to go into the question of whether it was an action in trespass or an action based upon a nuisance for the reason which I think I have sufficiently indicated. The question arises whether, as Mr. Sinha suggested, the plaintiffs have failed to disclose a cause of action; in other words, the plaintiffs have failed to establish such facts as would entitle them to succeed in this action.

The facts must be observed. The bandh complained of runs from east to west. At certain points in the bandh there are gaps which at times of floods are filled up with boards. The bandh is situate on the road and under the road there are culverts or tunnels through which the water drains. In the immediate vicinity and running parallel to the road in question is the railway. Under the railway there are also culverts through "which water flows to the area to the north, according to the plaintiffs'' case. According to one of the maps exhibited in the case there were two of these culverts under the railway. There may be more, but whether there are more or less is a matter of no materiality in this case. Generally stated, it is the plaintiffs'' contention that in the time of flood the water having collected in what is the Englishganj area where the plaintiffs'' houses are situate, it has a natural drainage to the north and would drain in that direction if not prevented from so doing by the obstructions to which I have already made reference. These are the bandh and doors or traps closing the culverts.'' New, both the closing of the gaps in this bandh and the clofaing of the culver''s are complained of. What happened was this In recent years certain trap doors (if they may be described as such) have been erected in these culverts in such a way that they automatically close ire the event of the flood water of the southern area reaching a certain level. Now, one of the controversies between the parties is that what happens to the water in case of flood. It is the plaintiffs'' case that the water drains over a large area and eventually falls into certain drains of considerable dimensions which proceed down on the western side of the maiden at the back of what is now the Cinema, at the back of the English Church and the European Club, eventually finding its way into the river Ganges. Both the Judges of the Courts below inspected these drains and have come to different conclusions.

The trial Judge was of the opinion that the water drains from the south to the north through this channel, while the learned Judge in the Court below has come to a different conclusion, and, as I understand, the appellate judgment Las found that the water drains to the east, west and possibly to the north. I think one thing is established, however, and that is that whether the water does drain or not, these drains are now to a very large extent silted up. It does not appear whether this is so by reason of the material carried down by flood water or by reason of persons throwing waste stuff into the drains, although I believe one of the witnesses made the statement that the drain was silted up. Mr. Sinha points out however that during the course of the evidence the plaintiffs themselves admitted that after leaving the culverts the water would pass over what is known as land which is a Muhammadan graveyard, spread over the land and eventually would find its way into these defined channels. This question was argued (as I understood the argument in support of the contention) that unless the plaintiff proved that they had a right (prescriptive right) to drain the water in cartain defined channels, they have not shown any cause of action.

I propose to deal with the authorities in this matter. In the first instance, so far as the right of the plaintiffs to bring this action is concerned, I have already had occasion in this Court to refer to the case in Harrop v. Hirst (1869) 4 Ex. 43 : 38 L.J. Ex. 1 : 19 L.T. 426 : 17 W for the purpose of holding that the plaintiff had a right of action without proof of special damage. I made certain observations in regard to that case when following it in circumstances similar to those in the present. I do not propose to say anything more with regard to the matter. There are three cases only which I propose to refer to in this connection. Niele v. L. and N. W Ry. Co. (1875) 10 Ex. 4 : 44 L.J. Ex. 15 : 23 W.R. 60 shows one aspect of the law which applies to this case. The second case is Whalley v. Lancashire and Yorkshire Ry. Co. (1884) 13 Q.B.D. 131 : 53 L.J.Q.B 285 : 50 L.T. 472 : 32 W.E. 711 : 48 J.P. 500. In the former case the defendants had merely protected their own land from floods which were imminent and they were held not to be liable in the action at the instance of the plaintiff, on the ground that the water which did the mischief was not brought there by them and they had a right to so protect themselves. In the latter case to which I have made reference, although the water had not been brought on to the defendants'' land by the defendants it was held that the water having once gone there, they were not entitled to discharge it on to the land of the plaintiff and thus to cause damage to it, in other words, the defendants, if they were land owners, as in this case, would be entitled to erect such works as would protect them from damage to their land caused by any flood. It is not suggested in this case, as I think I have already indicated that the defendants have done any act which would come within the principle laid down in the latter of the two cases to which I have referred. It is merely a case in which the plaintiffs alleged that they had a right to discharge flood water towards the north, and that this flood water would ordinarily drain through certain defined channels and ultimately find its way into the Ganges; The law is as follows:

The plaintiffs have got no absolute right to have their land kept free from flood water by draining it to the north thus flooding these lands. The flooding of their land is a danger to which all persons in the neighborhood of a river which is likely to overflow its banks are exposed. Their right, if any, is (as alleged in their case) to drain the water off through certain defined channels. Now, it is quite clear that in order to succeed the plaintiffs must show that they have a prescriptive right to drain flood water off in the manner suggested. This I think is quite clearly established by authorities and reference also might be made in this connection to Gerrard v. Crowe (1921) 1 A.C. 395 : 90 L.J.P.C. 42 : 124 L.T. 486 : 73 T.L.R. 110 where Lord Cave in delivering the opinion of their Lordships of the Judicial Committee of the Privy Council referred to this point. From the judgment of the Court below I think it is sufficiently clear that the plaintiffs have established no such right. The only difficulty in the matter is that which arises from the method by which the learned Judge in the Court below comes to this conclusion. It might be argued that he has imported his own knowledge in the matter find for that reason his finding cannot be supported. But from a perusal of the evidence it is clear to me that there is evidence upon which the Judge could have come to this conclusion apart from the objectionable method which the Judge appears to have adopted. It is clear that these channels are choked up, and, even apart from that, the area of the flood which affected the plaintiffs'' properties is such that it would be impossible to come to the conclusion that these channels were sufficient to take all the flood water from 150 square miles which is one of the estimates of the extent of the flood.

There is another aspect of the case and the one which in my judgment is conclusive. The act complained of was the automatic shutting of these culverts under the roads. It is nowhere suggested by the plaintiffs, and certainly not proved, that they had any prescriptive right to drain off the water through those culverts; nor could there be any prescriptive right to drain through the gaps in the bandh as the bandh has been erected only in recent years and no complaint was made at the time as to the erection of the bandh. Their case is limited to a claim to drain off the water to the north. It is admitted by the plaintiff in his evidence that after leaving the culverts the water spreads over the land to the north and evidently finds its way into the alleged defined channels. It is clear therefore that such obstruction as may have been proved is the preventing of the water from spreading over the land to the immediate north of the bandh which was not actionable and not an obstruction of the defined channels which it was necessary to prove in order to establish a cause of action. As regards the facts I have already stated that the Judge in the Court below has come to the conclusion that the water not only drains from south to north, but also from west to east. That is an additional reason for holding that the plaintiffs have failed to establish their case; it was their contention it must be remembered that water drains merely from south to north. I do not consider that the observation of the learned Judge, that if the plaintiff had plastered the wall of his garden, the water would not have entered is relevant.

On the whole I have great hesitation in coming to the conclusion that the bandh which is complained of, the trap doors and culverts would drain the whole of this very large area which becomes flooded at a time when the Poonpoon overflows its banks. One of the difficulties in this case, as I have already pointed out, is the attitude of the defendants. Had the Crown established the fact that they were proprietors of the land to the north and the erection of the bandh was for defending this land from flood water, it would have been a complete defense to the plaintiffs action as the authorities which I have already noticed clearly show. In Crown taking up the attitude that they have done, they have seriously jeopardized their case. But having regard to the conclusion at which I have arrived, namely that the plaintiffs have established no prescriptive right, the weakness of the defence would not assist the plaintiffs. Every sympathy is to be offered to the plaintiff in a case of this kind, but the matter must be decided strictly according to the facts and the law. I cannot part with the case without observing that the defence are not to be congratulated on the defence they put up which left the Court completely in the dark as regards the strict legal position of the Crown in the matter and so were the plaintiffs. In those circumstances although the appeal fails, I am of the opinion that it should be dismissed without costs. There will be leave to appeal.