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N.C. Talukdar, J.—This Rule is at the instance of the first-party petitioner, Shiba Sankarial Mehrotra, for setting aside an order dated the 27th May, 1968 passed by Shri S.N. Basil, Municipal Magistrate, 2nd Court, Calcutta, in Case No. 1A/67, holding that the proceedings pending before the said Court u/s 583 of the Calcutta Municipal Act, 1951, is not maintainable in law and, in that view, cancelling the show cause notices issued and discharging the second party-opposite parties. The facts leading on to the Rule can be put in a short compass. An application u/s 583 of the Calcutta Municipal Act, 1951 was filed by the first-party before the learned Senior Municipal Magistrate, Calcutta, on the 15th March, 1967, praying for an enquiry into the nuisance complained of and thereafter to direct the persons responsible for the offence to take such measures as the court deems fit and proper for abating, preventing, removing or remedying such nuisance as also to direct the Commissioner of the Corporation of Calcutta to impose the relevant provisions of the Calcutta Municipal Act, 1951 or of the rules or bye-laws made thereunder for the said purpose. Seven persons were made opposite-parties, viz., the Commissioner, the Chief Valuer and Surveyor, the District Engineer-I, the District Health Officer I the Estate of Munnilal Khattry represented by Mahesh Prosad Khattry, Kashi Prosad Khattry, Trust Estate represented by Sm. Ansuiya Bibi and Kalachand Basak. It was stated therein inter alia that the applicant is a resident of premises No. 44, Balaram Dey Street, Calcutta and the husband of Sm. Krishna Debi Mehrotra, one of the joint owners of the said premises. The Estate of Munnilal Khattry and Kashi Prosad Khattry is the owners of the premises Nos. 76, Girish Park, North and 42, Balaram Dey Street, respectively. Premises No. 76, Girish Park, North, Calcutta is towards the south of 44, Balaram Dey Street while the premises No. 42, Balaram Dey Street is towards the west of both the premises referred to above. There is a common alley, called the bed of nuisance, wherein the three premises empty their sewerage and/or polluted water and the same is in its turn connected with the drain maintained under the supervision of the District Engineer I of the Corporation of Calcutta. Above the junction of the bed of nuisance and the public drain an unauthorised structure was built serving the purpose of a shop and the master trap being below the ground level of the structure, the Corporation was finding it difficult to cleanse the drains which were getting choked up. The joint owners wrote to the Commissioner for exercising his powers under the Act for removing the unauthorised structure viz., the shop so that the bed of nuisance may be cleansed and public health be not endangered. Proceedings were instituted by the Commissioner of the Corporation of Calcutta u/s 354 of the Act for removal of the unauthorised encroachment. But this was objected to by Kashi Prosad Khattry, the trustee, claiming the encroachment to be a property of 42, Balaram Dey Street. The objection was referred to the Chief Law Officer and since then no action has been taken u/s 354 of the said Act. The Corporation having failed to carry out his duties, an application u/s 583 of the Calcutta Municipal Act, 1951 was filed to direct the Commissioner to abate or remove the nuisance endangering the public health. Proceedings thereupon were drawn up u/s 583 of the Calcutta Municipal Act, 1951 and the case was transferred to the file of the learned Municipal Magistrate, Second Court, Calcutta. The parties thereafter appeared and an inspection was held and notice was issued for showing cause upon the opposite-parties. The opposite-party No. 5, the Estate of Munnilal Khattry represented by Sri Mahesh Prosad Khattry did not appear. But the opposite parties Nos. 6 and 7 Kashi Prosad Khattry, Trust Estate, represented by Sm. Ansuiya Bibi and Tarachand Basak filed a joint petition of objection admitting the existence of the bed of the nuisance but contesting the removal on the ground that the application is not maintainable as the said structure is more than 30 years old and the passage through which the disputed drain passes belongs to the opposite party No. 6, Kashi Prosad Khattry Trust Estate. The learned Municipal Magistrate on hearing the parties directed the opposite-party No. 3, the District Engineer I, to inspect the site and suggest measures for removal of the alleged nuisance and also to give the estimated cost for the same. In compliance therewith the said opposite-party No. 3 submitted a report recommending that the shop over the master-trap should be removed and the pit of the master-trap should be repaired and raised up to the ground level, costing approximately Rs. 500/-. The parties were heard again by the learned Municipal Magistrate, who by his order dated the 27th May, 1968, ultimately held that the present proceedings were not maintainable before him and in that view he cancelled the show cause notices and discharged the opposite-parties. This order has been impugned and forms the subject-matter of the present Rule.
Mr. Ranjit Kumar Banerjee, Advocate (with Mr. G.S. Khettry, Advocate) appearing in support of the Rule on behalf of the petitioner, ably argued the case and made a four-fold submission. The first contention of Mr. Banerjee is that section 583 of the Calcutta Municipal Act, 1951 applies to a nuisance irrespective of whether it is public or private, if it comes within the ambit of the definition given in section 5(50) of the Calcutta Municipal Act, affecting even a section of the public and as such the learned Municipal Magistrate has erred in holding that the nuisance complained of in the present case cannot be remediable u/s 583 on the ground that it is a private one. The dominant test according to Mr. Banerjee is whether the nuisance complained of satisfies the definition of nuisance as incorporated in section 5(50) of the Calcutta Municipal Act, 1951 and if it so does, it constitutes a statutory nuisance attracting the provisions of section 583 of the West Bengal Act XXXIII of 1951 or of the rules or of the bye-laws made under the said Act for abating, preventing, removing, remedying such nuisance as enjoined under the said Act. In support of his contention Mr. Banerjee referred to some authorities as well as several decisions which will be considered in their proper context. Mr. Banerjee next contended that the learned Municipal Magistrate misunderstood and misinterpreted the report of the District Engineer I of the Corporation of Calcutta dated the 15th February, 1968 stating that "due to the existence of the shop on the Mastertrap the chokage of the house drainage cannot be readily and easily removed which creates insanitary condition" and that in view of the topography of the locality, the said report clearly establishes that the nuisance complained of is not a mere private nuisance affecting the first party only but is one that affects the health of the locality or of a section of the public. The third contention of Mr. Banerjee is that the learned Municipal Magistrate has erred in holding that no relief could be granted to the first party on the footing that it involves the removal of an unauthorised construction which is beyond the purview of the learned Municipal Magistrate''s jurisdiction inasmuch as the point involved is not so much of the removal of an unauthorised construction but of a nuisance affecting the health of the locality. The fourth and last submission of Mr. Banerjee relates to abatement and is to the effect that the order impugned has been vitiated by a non-consideration of measures for the abatement of the nuisance complained of, without necessitating the removal of any unauthorised structure, before passing the final order of discharge and as such there should be a remand for a proper disposal on merits, on a consideration of the measures possible for abatement of the nuisance complained of. Mrs. Archana Sengupta, Advocate, appearing on behalf of the opposite-parties Nos. 1 to 4, viz., the Commissioner, the Chief Valuer and Surveyor, the District Engineer I, and the District Health Officer I of the Calcutta Corporation, supported the Rule. She contended in the first instance that the order of discharge is premature and in the interests of justice there should be a remand for a proper disposal. Mrs. Sengupta''s second contention is that the learned Municipal Magistrate not only misinterpreted the report dated the 15th February, 1968 submitted by the District Engineer I, Corporation of Calcutta but also erred in relying on the same inasmuch as it was not legally proved and the failure on the part of the learned Municipal Magistrate to consider the same has resulted in a non-conformance to the procedure established by law and a consequent failure of justice. Mrs. Sengupta next submitted that the report, in any event, clearly stated that the structure is unauthorised and the same cannot stand in the way of the removal of a nuisance affecting the health of the locality. Mr. J.P. Srivastava, Advocate, appearing on behalf of the opposite party No. 6, Kalachand Basak, opposed the Rule. He contended in the first instance that section 583 of the Calcutta Municipal Act, 1951 does not relate to a case of a private nuisance which is amenable to civil law, and as such the learned Municipal Magistrate, had rightly cancelled the show cause notice and discharged the opposite-parties. Mr. Srivastava contended in the second place that in view of the nuisance being private one, the finding arrived at by the learned Magistrate that there cannot be any removal of the said nuisance because it involves the removal of an unauthorised construction is redundant. The third contention of Mr. Srivastava is that the report of the District Engineer dated the 15th February, 1968, is not inadmissible in evidence and as such the findings arrived at by the learned Municipal Magistrate on the basis thereof do not stand vitiated. The fourth and last submission of Mr. Srivastava is that as the proceedings over a private nuisance are not maintainable u/s 583 of the Calcutta Municipal Act, 1951, there is no question of any consideration of measures of abatement by the learned Municipal Magistrate.
Having heard the learned Advocates appearing on behalf of the respective parties and on going through the materials on the record, I will now proceed to determine the points raised in the Rule. The first point raised by Mr. Banerjee is one of law and of some importance viz., as to whether section 583 of the Calcutta Municipal Act, 1951 applies to a public nuisance only or to a private nuisance also. The provisions of section 583(1) of the West Bengal Act XXXIII of 1951 are as follows: "The Corporation, or any person who resides or owns property in Calcutta, may complain to a magistrate of the existence of any nuisance". It would appear therefore that the pith and substance of section 583(1) of the Calcutta Municipal Act, 1951 is "any nuisance", unqualified by any limitation of being private or public. It is pertinent therefore to refer to the definition of "nuisance" in section 5(50) of the Act and the same "includes any act, omission, place or thing which causes or likely to cause injury, danger, annoyance or offence to the sense, sight, smell or hearing or disturbances to rest or sleep or which is or may be dangerous to life or injurious to health or property". This definition is a wide and comprehensive one, irrespective of any express distinction between a public or a private nuisance. The sine qua non of such a nuisance is whether it causes or is likely to cause, amongst others, an offence to the sense of smell or is injurious to the health or property. The point at issue therefore is whether this injury to the health or property is in the context of a private party or of the public and the answer to that would be the answer to the question. It is necessary therefore to refer to the case law on the point and find out the im-premature of the legal decisions on the concept of nuisance within the bounds of section 583 of the Calcutta Municipal Act. Mr. Banerjee referred to the case of (1) Bhagwan Das, Petitioner v. Rash Behari Mullick, Opposite party reported in 14 CWN 637 wherein it was held by Mr. Justice Coxe and Mr. Justice Ryves that the term ''nuisance'' in section 632 of the Calcutta Municipal Act III of 1899 does nut refer only to nuisance affecting the public generally but it applies as well to nuisance affecting an individual. Mr. Justice Ryves delivering the judgment of the court observed at pages 639 and 640 as follows: "It has been argued (1) that section 632 of the Calcutta Municipal Act does not apply to a case of this kind where the nuisance, if any, affects an individual and does not the public generally... The term ''nuisance'' however has been defined in the Act and the definition is wide enough to cover this case". The next case cited on the point is the case of (2) Khagendra Nath Mitter, Petitioner v. Bhupendra Nath Dutt, Opposite party decided by Mr. Justice Holmwood and Mr. Justice Fletcher and reported in 15 CWN 315. Mr. Justice Holmwood delivering the judgment of the court observed at page 318 that "A public nuisance is one that affects the King''s subjects at large or a considerable portion of them such as the inhabitants of a town" while "a private nuisance on the other hand is one that affects only one person or a certain determinate number of persons and is only amenable to the Civil Law" and ultimately held that in view of the definition of "nuisance" in section 3 clause 29 of the Calcutta Municipal Act, III of 1899, it is wider than the common law definition of ''public nuisance'' but does not certainly extend to the inclusion of all private nuisances as was sought to be argued on the authority of (1) Bhagwan Das v. Rash Behari Mullick". A reference in this context may be made to the case of (3) Alimahomed Salemahomed Vs. Municipal Commissioner of Bombay, wherein the point involved is as to whether the keeping of animals in a stable is a public nuisance or not, Mr. Justice Taraporewala agreed with the observations of Mr. Justice Holmwood in the case reported in 15 CWN 316 that the court ought most strongly to deprecate the use of the Municipal Act for the purpose of interfering in any way with the rights of private ownership beyond those limited powers which the Corporation had obtained by statute for the necessary protection of the public and the enforcement of proper sanitation and held at page 463 that "It may be that if a person keeps a very large number of horses and the locality is very thickly populated, it may cause discomfort, annoyance and injury to health, not only to the residents of two or three houses but of a much larger number of houses. In that case it would be a public nuisance". In a more recent decision in the case of (4) Commissioner of Calcutta Corporation, Petitioner v. Prafulla Kumar Sarkar and ors., Opposite parties, reported in 69 CWN 674 it was held by Mr. Justice K.C. Sen and Mr. Justice A.K. Das that nuisance within the meaning of section 583 read with section 5(50) of the Act, though wider than the common law definition of public nuisance, does not include all private nuisances. Mr. Justice Das delivering the judgment of the court observed at page 678 that "the definition of the word ''nuisance'' in the Calcutta Municipal Act is very comprehensive and it includes any act or omission or thing which is, or may be dangerous to the life or injurious to health or property....nuisance in my view, must be such, of which the proximate result would be danger to life or injury to health'''', and ultimately held at page 680 that the decisions reported in (1) 14 CWN 637 and in (3) AIR 1925 Bom 450 "are not in conflict with the decision reported in (2) 15 CWN 316 or with the view taken that a nuisance within the meaning of section 5(50) Calcutta Municipal Act is a nuisance which affects the public generally or a section of it." I respectfully agree with the said observations.
In this context it is pertinent to refer to the language of the statute for ascertaining the intention of the legislature. The expression used in section 5(50) of the West Bengal Act XXXIII of 1951 is "includes". ''Nuisance'' within the ambit of the said definition "includes any act, omission etc". Some meaning and effect must be given to the same as the principles of interpretation of statute rule out redundancy. As was observed by Lord Sumner in the case of (5) Quebec Railway Light, Heat and Power Co. Ltd. v. Vandry, reported in AIR 1920 P.C. 181 at pp. 184 that "Effect must be given if possible to all the words used, for the legislature is deemed not to waste its words or to say anything in vain". A reference in this context may be made to the case of (6) Tarak Chandra Mukherjee and Others Vs. Ratan Lal Ghosal and Others, wherein C.J. Chakravartti observed at pp. 270 that "the effect of a definition clause, beginning with the word ''includes'' is not to single out for specific mention some of the things comprised within the natural in port of the term defined, but the effect is to enlarge that import by the addition of certain things which would not otherwise be regarded as included". A reliance was made therein on the observations of Lord Watson in (7) Dilworth v. Commissioner of Stamps, reported in (1899) AC. 99 at pp. 106 that "But the word ''include'' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely used for the purpose of adding to the natural significance of the words or expression defined. It may be equivalent to ''mean and include''". Applying the said yard-stick to the concept of ''nuisance'' as defined in section 5, sub-section (50) I hold that to put on it the limited interpretation of a private nuisance only would be merely circumscribing the intention of the legislature expressed in that behalf. Mr. Srivastava, appearing on behalf of the opposite party No. 6, joined issue and submitted that the nuisance envisaged u/s 583 read with section 5(50) of the Calcutta Municipal Act is only a private nuisance amenable to civil law. In support of his contention he pinpointed the observations of the Division Bench of this High Court made in (2) 15 CWN 316 at p. 318 that the definition of ''nuisance'' does not certainly extend to the inclusion of all private nuisances as was sought to be argued on the authority of (1) Bhagwandas v. Rash Behari Mullick and "I most strongly deprecate the use of the Municipal Act for the purpose of interfering in any way with the rights of private ownership beyond those limited powers which the Corporation have obtained by statute for the necessary protection of the public and the enforcement of proper sanitation." He also relied on the approval of the said observations by Mr. Justice Taraporewala in (3) Alimahomed Salemahomed Vs. Municipal Commissioner of Bombay, . It is difficult however to agree with the submissions of. Mr. Srivastava inasmuch as he has relied on a part of the observations made in the above-mentioned cases overlooking the ultimate findings arrived at therein, as already discussed by me above. The limited interpretation sought to be put by Mr. Srivastava on the concept of nuisance u/s 583 read with section 5(50) of the West Bengal Act XXXIII of 1951 is de hors the statute and the intention of the legislature as expressed therein and I hold that it is unwarranted and untenable.
On ultimate analysis I hold that section 583 of the Calcutta Municipal Act, 1951 does neither relate to a private nor a public nuisance as such but relates to a statutory nuisance, fulfilling the conditions laid down in section 5(50) of the West Bengal Act XXXIII of 1951. It is wider than the common law definition of a public nuisance, though not including all private nuisance. In order to come within the ambit of section 583 a nuisance must conform in the first instance to the definition of a ''nuisance'' in section 5(50) of the Calcutta Municipal Act, 1951 and then satisfy that the proximate result thereof would be a danger to life or injury to health, affecting thereby a section of the public. The facts disclosed in the present case established a case of nuisance affecting the health of the locality because of the accumulation of the sewerage and/or polluted water of the adjoining premises into the common alley, called the bed of nuisance, which cannot be cleansed. I hold accordingly that the nuisance complained of in the present case is a statutory nuisance u/s 5(50) coming within the ambit of section 583 of the Calcutta Municipal Act, 1951.
The point at issue may also be approached from another standpoint, viz., that of a statutory offence irrespective of whether it is private or public. Where the statute provides for a nuisance defining the same and a contravention thereof is proved, the statute law has to be strictly enforced irrespective of the nature of the nuisance and in the manner as enjoined in the statute. If the nuisance complained of is one within the meaning of section 583 read with section 5(50) of the Calcutta Municipal Act, 1951, it is the duty of the learned Municipal Magistrate to direct the Corporation to enforce the provisions of the Act or of the rules or the bye-laws made thereunder for abating, preventing, removing or remedying such nuisance. It has been observed by Clerk & Lindsell in their "Law of Torts" (10th Edn.) in Chapter XVII at page 544 that "Nuisance is an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of a right belonging to him as a member of the public, when it is a public nuisance, or (b) his ownership or occupation of land or of some easement, quasi-easement, or other right used or enjoyed in connection with land, when it is a private nuisance". I agree with the said principles which dovetail into the facts of the present case as also the observations made in the line of cases cited above. The question in the present case is not so much of a right or easement or quasi-easement or of a right attached to the land constituting a private nuisance but of a nuisance affecting the health and interfering with the enjoyment of the right belonging to the person as a member of the public constituting a public nuisance. In Halsbury''s Law of England (Second-Hailsham Edn.), Volume 24, Article 41, it has been observed that "A statutory offence is one which, whether or not it constitutes a nuisance at common law, is made a nuisance by statute, either in express terms or by implication". The sine qua non therefore is whether a statutory nuisance exists irrespective of whether it constitutes a public nuisance at common law or not. To read more than that in the statute would be going beyond the intention of the legislature. A reference in this context may be made to the case of (8) Firm Seth Radha Kishan (Deceased) Represented by Hari Kishan and Others Vs. The Administrator, Municipal Committee, Ludhiana, wherein Mr. Justice Subba Rao, (as His Lordship then was) approved of the principles laid down by Willes J. in the case of (9) Wolverhamston New Water Works Co. v. Hawkesford, reported in (1859) 6 C.B. (N.S.) 336 at page 356 that "But there is a third class viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.... The remedy provided by the statute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class". In Halsbury''s Laws of England (3rd Edn. Simonds), Volume 28 nuisance has been classified in Article 152 at page 126 into public, private and statutory nuisance and in Article 157 the distinction between the same has been laid down. Therefore the essential ingredient called for is whether the health of the locality is affected even though the impugned nuisance started as a private one. As was observed by Lord Goddard C.J. in the case of (10) Morrissey v. Galer reported in 1955(1) WLR 110 at page 112 that "If a nuisance is proved, it is a nuisance whether it is a serious nuisance or not.... generally speaking, in law a thing is either a nuisance or it is not". He further proceeded to observe that "section 92 of the Public Health Act, 1936, creates a statutory nuisance where ''any animal is kept in such a place or manner as to be prejudicial to health or a nuisance''. It is the keeping, that is to say, the condition under which the animal is kept, which may create a nuisance and in respect of which an abatement notice can be served". I respectfully agree with the said observations and I hold that the main point to be considered is whether the facts constitute a statutory nuisance and if it be so the court shall proceed to consider whether the same comes within the bounds thereof. In the instant proceedings, it was the duty of the learned Municipal Magistrate to decide whether the impugned offence satisfied in the ingredients of section 5(50) of the Act, coming thereby within the ambit of section 583 of the Calcutta Municipal Act, 1951 and irrespective of the fact whether the nuisance is private or public. The contention of Mr. Srivastava that a nuisance, within the meaning of section 583 read with section 5(50) of the said Act must be public one is therefore unwarranted and untenable and the first contention of Mr. Banerjee accordingly succeeds.
The second and the third contentions of Mr. Banerjee centre round the report of the District Engineer I of the Corporation of Calcutta. Mr. Banerjee has urged that the said report which states that "the chokage of the house drainage cannot be readily and easily removed which creates insanitary condition" does not disclose a private nuisance affecting the first-party only. He further contended that the question involved is not so much of the removal of an unauthorised construction but of a nuisance affecting the health of the locality. A reference to the report would reveal that it has been clearly mentioned therein that the "nuisance creates an Insanitary condition" and such insanitary condition in a crowded locality affecting a part of the public, cannot be a private nuisance. Moreover the learned Municipal Magistrate has disposed of the points at issue on a misinterpretation of the decision of the Calcutta High Court referred to by him in his judgment as purporting to establish that section 583 of the Calcutta Municipal Act, 1951 deals with a public nuisance only and also on a non-consideration of the measures whereby the incident of nuisance could have been removed instead of overemphasising a part only of the said report. The second and the third contentions of Mr. Banerjee therefore succeed. The fourth and the last contention of Mr. Banerjee is also a material one relating to abatement. Mr. Srivastava has brushed aside the said submission on the ground that the nuisance being a private one the provisions of section 583 of the Calcutta Municipal Act, 1951 do not apply thereto and as such there is no question of any consideration of measures of abatement by the learned Municipal Magistrate. I have already found in connection with the first point raised in this case that the nuisance is not a statutory nuisance coming within the ambit of section 583 of the Calcutta Municipal Act, 1951 and I hold that in the facts and circumstances of the case the learned Municipal Magistrate has erred in riot considering the measures for abating the nuisance in the locality. The necessity to consider measures of abatement before coming to the final determination either by way of the removal of the nuisance or of disposing of the application, has been emphasised by several authorities and also in a number of decisions. Salmond while elaborating his dichotomy of nuisance has observed that "the earliest remedies for nuisance were the Assize of Nuisance and the Writ of Quod Permitett Posternere to authorise the plaintiff to abate the nuisance. The position in law in this country is substantially the same. A reference to the provisions of section 583 of the West Bengal Act XXXIII of 1951 would establish that the learned magistrate when satisfied is to take such measures as he deemed practicable and reasonable "for abating", preventing, removing or remedying such nuisance." It would therefore appear that the legislature intended that the nuisance, if any, must be sought to be abated in the first instance before the court comes to a final decision in the proceedings. Without multiplying the cases, a reference in this connection may be made to the case of (11) Rampalat Shaw Vs. Corporation of Calcutta, wherein it has been held by Mr. Justice S.K. Niyogi that the trying magistrate should in the first instance find out as to "whether it was possible to take any such step for the abatement of the nuisance before proceeding to give that drastic order for the removal of the nuisance". A reference again may be made to the case of (12) M/s. Kanak Kr. and Ashok Kr. and Another Vs. Corporation of Calcutta, wherein it was held by this Court that the learned Municipal Magistrate should have explored the avenues of abatement before directing the removal of the entire factory". It is undoubtedly true that in the two cases referred to above there was a direction for the removal of the nuisance, unlike in the present case where the proceedings have only been held to be not maintainable and in that view the second party opposite parties have been discharged. But the principles are the same for determining the approach by the learned magistrates in such cases and I agree therewith. The fourth and last submission of Mr. Banerjee accordingly succeeds. In the result, I make the Rule absolute; set aside the order dated the 27th May, 1968 passed by Sri S.N. Basu, Municipal Magistrate, Second Court, Calcutta, dropping the proceedings u/s 583 of the Calcutta Municipal Act, 1951, and cancelling the show cause notices issued as well as discharging the opposite parties, in case No. 1A of 1967; and I direct that the case shall go back to the court below for being disposed of on merits, in accordance with law and expeditiously, from the stage reached on the 27th May, 1968, by some other learned Municipal Magistrate to be selected by the learned Senior Municipal Magistrate, Calcutta.
The records are to go down as early as possible.