IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon’ble Justice Soumen Sen
And
The Hon’ble Justice Ajoy Kumar Mukherjee
SA 77 of 2020
Srimanta Ghosh & Ors.
Vs.
Debabrata Ghosh
For the Appellant : Mr. Baidurya Ghosal, Adv.
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Dated : 3rd February, 2022
Soumen Sen, J. (Oral): This matter has come up for admission.
This appeal is arising out of a judgment and decree passed by the
learned Additional District Judge, FTC-I, Lalbagh in an appeal from a
judgment and decree dated 12th August, 2016 passed by the learned
Civil Judge (Junior Division), Lalbagh, Murshidabad in Other Suit No.
54 of 2000.
The plaintiff filed a suit for actionable nuisance and permanent
injunction. The plaintiff alleged that the defendant is an adjoining plot
holder and the defendant/appellant was running a mill that caused
rattling noise and vibration, and as a consequence whereof, it had
caused discomfort to the plaintiff and his wife. It was alleged that the
defendant was making arrangement for installing and running a mill on
the said suit scheduled property with the help of 20 horsepower motor
without the required licence. The rattling noise and vibration is injurious
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to the health of the plaintiff and his wife, inasmuch as, it had caused
discomfort to the enjoyment of the property. It is further alleged that due
to the rattling noise and vibration, the son of the plaintiff could not
concentrate on his studies.
The defendant entered appearance in the suit and filed a written
statement. In the written statement it was alleged that the defendant
was not required to obtain a ‘no objection certificate’ from the Pollution
Control Board as the mill was running with a motor of 15 horsepower
and there was no need to seek a grant of such permission from the
Pollution Control Board. It is further alleged that there is a liquor shop
adjacent to the house of the plaintiff and no such injuries was caused
due to the same to the plaintiff in running the said mill. It was further
alleged that the same has been filed out of vengeance and contain
untrue statements.
On the basis of the pleadings, the Trial Court framed five issues.
Therein the most important issues were:
i) whether the activity of the defendant caused nuisance;
ii) whether the plaintiff was successful in making out a case of
actionable nuisance.
The Trial Court, on the basis of evidence, decreed the suit on the
ground that the defendant had failed to produce any document to show
that the motor installed to run the mill is of 15 horsepower. On the
contrary, during evidence it transpires that there are three types of
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huller installed in the said mill: two huller of wheat grinding and
husking huller and one oil seeds crusher. In the year 2007, the
defendant had applied for enhancement of load of five horsepower before
the electricity board and his application was accepted. After
enhancement of more five horsepower load, the defendant had installed
a oil seeds crusher. It, thus, revealed that over a period of time,
increasingly more powerful motors were installed with augmented
horsepower. It also further revealed from the electricity bill that for
running the mill, about 1000 units of electricity was consumed.
The issue whether the said motors would create a rattling noise
and vibration, could be available from the manufacturer’s certificates
and other relevant documents with regard to the features, specifications
and functioning of the said motors. These essential documents were not
produced by the defendant.
The learned Trial Judge, in our view, has rightly relied upon
Section 106 of the Evidence Act to draw an adverse inference against the
defendant for withholding such important documents, when the fact
remains that three machines were in operation in the suit property and
were capable of creating rattling noise and vibration thereby causing
discomfort to the enjoyment of property of the adjoining owner.
The learned Appellate Court had meticulously gone through the
pleadings and evidence and observed that in the event the motors have a
capacity of more than 15 horsepower, the defendant would be required
to obtain a ‘no objection certificate’ from the Pollution Control Board.
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Moreover, the three mills are being run by the defendant in the schedule
property with an industrial connection and it is an admitted position
that the DW-1 in his evidence had admitted that the plaintiff’s house is a
mud-built which is adjacent to the suit schedule property and naturally,
the regular vibration due to running of the machines would affect the
structural stability of the house of the plaintiff. The evidence on record
clearly suggests that by reason of running of the said mill, it has caused
discomfort to the enjoyment of the property of the plaintiff materially.
In deciding whether in any particular case, the right of the plaintiff
to comfortable and healthful enjoyment of the property has been
interfered with due to nuisance, it is necessary to determine whether the
act complained of is an inconvenience, materially interfering with the
ordinary physical comfort of human existence, not merely according to
elegant or dainty modes and habits of living, but according to plain and
sober and simple notions among Indian people.” (See Shaikh Ismail
Sahib vs Nirchinda Venkatanarasimhulu and Iyah reported at AIR
1936 MAD 905).
While it is acceptable that every little discomfort or inconvenience
cannot be brought on to the category of an actionable nuisance but if
such inconvenience or annoyance exceeds all reasonable limits then the
same would amount to an actionable nuisance. Frequent and loud noise
has been proved to trigger stress and anxiety in both adult and children
– more often affecting mental health. A constant cacophony in
neighbour’s land causing disquietude in one’s own abode is beyond a
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common man’s realm of expected endurance. The question as to what
would be a reasonable limit in a given case will have to be determined on
consideration as to whether there has been a material interference with
the ordinary discomfort and inconvenience of life under normal
circumstances. It is not the case of the defendants that the activity
undertaken by the defendant/appellant is only one of the common
occurrences in that particular locality.
The essence of nuisance is a condition or activity that unduly
interferes with land use or enjoyment. Nuisance resulting in interference
with one’s enjoyment, one’s quiet, one’s personal freedom, anything that
injuriously affects the senses, or could be a matter of health hazard, are
some of the considerations which in our view have been properly applied
by both the courts in returning a finding in favour of the plaintiff.
In Stone v Bolton reported in (1949) 1 All E.R. 237 at 238-239
it is stated:
“Whether such an act does constitute a nuisance must be
determined not merely by an abstract consideration of the act itself,
but by reference to all the circumstances of the particular case,
including, for example, the time of the commission of the act
complained of; the place of its commission ; the manner of
committing it, that is, whether it is done wantonly or in the
reasonable exercise of rights; and the effect of its commission, that
is, whether those effects are transitory or permanent, occasional or
continuous; so that the question of nuisance or no nuisance is one of
fact.”
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In the instant case, it is a real interference with the comfort or
convenience of living according to the standards of the average man as
due of such rattling sound and vibration caused by the three machines
the studies of the son of the plaintiff had suffered. Moreover it had
caused substantial discomfort to the plaintiffs. In this connection it
would be fruitful to refer to the principles relating to actionable nuisance
laid down in Ram Lal vs. Mustafabad Oil and Cotton Ginning
Factory and others. reported in AIR 1968 P & H 399 in Paragraph 25
which reads:
“From a review of the case law the following principles relating to
actionable nuisance may be deduced.
- In determining whether an actionable nuisance exists, the
degree or the extent of the annoyance or the inconvenience is to be
considered. For what may amount to a nuisance in one locality, may
in another place and under different surroundings be deemed
unobjectionable. - As the precise degree of annoyance or inconvenience does not
admit exact calculation, each case depends largely on its own facts. - The injury or annoyance which warrants a relief against the
nuisance complained of must be of real and substantial character
disturbing comfort or impairing enjoyment of property. For slight,
trivial or fanciful inconvenience resulting from delicacy or
fastidiousness, no relief can be granted. - As a general rule, but allowing for known exceptions, a
nuisance involves the idea of continuity or recurrence. Such a
nuisance, if continued indefinitely, will be actionable though not if
indulged in only on one or two occasions.
7 - Actionable nuisance does not admit of enumeration, and any
operation that causes injury to health, property, comfort to business,
or public morals would be deemed a nuisance. - In certain circumstances and under certain conditions, even a
natural tendency to cause injury, and a substantial fear or
reasonable apprehension of danger, may constitute a nuisance. - Jarring and vibration caused to the plaintiff’s premises, and
noises exceeding a certain norm and interfering with the actual
physical discomfort of persons of ordinary sensibilities, are deemed
an actionable nuisance. They have to be of such intensity as
unreasonably interfering with the comfort and enjoyment of
property, although no physical injury to the health of the
complaining party or his family is shown. But no fixed standard can
be set as to the quantum of noise that constitutes an actionable
nuisance, and it is a matter that depends upon each case’s
circumstances. - Once a noise is considered a nuisance of the requisite degree,
it is no defence to contend that it was a consequence of a lawful
business or arose from lawful amusements or places of religious
worship.” (emphasis supplied)
The learned First Appellate Court, on the basis of the appreciation
of evidence noted its finding, relevant portions whereof are set out below:
“The word ‘nuisance’ is derived from the French word ‘nuire’,
which means “to do hurt, or to annoy”. Nuisance is an unlawful
interference with a person’s use or enjoyment of land, or of some
right over, or in connection with it.
Private nuisance is the using or authorizing the use of one’s
property, of anything under one’s control, so as to injuriously affect
an owner or occupier of property by physically injuring his property
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or affecting its enjoyment by interfering materially with his health,
comfort or convenience.
Every owner of the property is entitled to use it beneficially
subject to such limitations as may be incidental to similar and
beneficial enjoyment of other owners of their properties.
The maxim “sic utere tuo ut alienum non laedas” is befitting
here. It postulates, so use your own property, as not to injure your
neighbours. The homely phrase ‘live and let live’ explains the
principle. It is the case of the plaintiff that the alleged mill situated at
‘Kha’ schedule property is on the adjoining north of the mud-built
house of the plaintiff situated on ‘Ka’ schedule property. It is found
depicted in the plaint schedule hand map. DW-1 categorically
admitted that plaintiff’s house is situated adjacent to their house and
over his house, the alleged mill is running.
DW-1 admitted on dock that they have three machines for
paddy husking, wheat grinding and mustard grinding for oil
machines over their property and those are running with three
different hullers.
DW-1 admitted that the mud-built house of the plaintiff is
adjoining to their mill. It is undisputed that the suit property locale is
a residential area.
It is no body’s case that plaintiff subsequently came to nuisance
adjoining the mill in question. In fact, the mill was installed later by
the defendant. Even in the nuisance existed long before the plaintiff
occupied his premises, does not relieve the defendant unless he is
able to show that he has acquired a right as against the plaintiff to
commit such nuisance complained of.
On behalf of the defendant (deceased), his son deposed in court
as DW-1. On the date of evidence he was aged about 29 years. At
the relevant time, when the mill was installed, he was aged about 15
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years according to him. He admitted that he does not have any
knowledge that occurred during the period of his father. His
knowledge as regards the W/S pleaded facts, is not possible and
cannot be relied upon.
DW-1 himself stated that they did not obtain any pollution
certificate from the concerned authority, as they were informed by the
concerned office that for running the mill with 15hp no such
certificate would be required.
In a suit for actionable nuisance, it is no defence that defendant
is not alone to be blamed for nuisance but there are others also.
Defendant pleaded that in the area there is a liquor shop which
remains open from 8am to 9pm. So, this cannot be the defence of the
defendant.
Plaintiff need not prove special injury or special damage till
those actually happens to him, his family and his property. Plaintiff
need not call the doctor and produce medical papers as pleaded. He
at the same time cannot be compelled to call any civil engineer to
ascertain the damage to his house or the likelihood of such damage.
Plaintiff need not prove which are the other such mills in the locality,
causing any kind of injury or damage to him, in any way. In a suit for
private nuisance, special injury or damage need not be proved by
plaintiff. Substantial interference with the use, comfort or enjoyment
of his property would be enough to establish it.”
The learned First Appellate Court has agreed with the observations
of the learned Trial Judge that the defendant has failed to discharge his
onus by not producing the relevant documents. The relevant
observations of the learned First Appellate Court are set out below:
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“Having special knowledge, defendant has to prove that they
approached the Board and were told that no such clearance would
be required to run the mill with 15hp. The defendant failed to
establish that all the three business together of husking mill, oil mill
and grinding mill run by the defendant, falls under the exempted
category of WBPCB parameters. S.106 of the Evidence Act lays down
that where a fact is specially within the knowledge of a party, the
burden of proving that fact lies upon him. If he fails to establish or
explain those facts, an adverse inference of facts may arise against
him. Therefore, the case decision of Rangammal (supra) would be of
no help and avail to the defendant as referred and relied upon.
The defendant failed to prove that the mill is running with three
huller machines without sound and vibration, as it is bound to occur.
That the nuisance complained of, even if confers benefit to the
public at large coming over to defendant’s mill, is nonetheless an
actionable. Consideration of public utility cannot deprive plaintiff’s
rights. Under the Specific Relief Act, suit to prevent the nuisance is
maintainable U/S. 38 and 39.
The mill machines are set up without complying with the
requirements of PCB and without seeking necessary permission for
having extended load from the concerned electric department.
Nuisance is being created on account of noise and vibration due to
the running of it. This causes potential danger to mud-built house of
the plaintiff as also health hazard prone to the plaintiff and his
family members. The sound and vibration causes mental agony to
the plaintiff and his family members affecting their mental peace and
sleep disturbed.
Form the evidence on record, I came to conclude that the
proximate cause of plaintiff’s injury is due to defendant’s act and the
injury or annoyance is sufficient to constitute nuisance. The ordinary
use and enjoyment of his property by the plaintiff has affected. The
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reaction of the plaintiff in initiating a legal action in the form of filing a
civil suit is nothing unusual or abnormal. The nuisance is not of
temporary but permanent in nature and definitely abatable. It is
created negligently or say to the reckless disregard of the plaintiff’s
rights, though not intentional or with any malice.
I relied upon the case decisions of Dhannalal & Anr. Vs. Thakur
Chittarsingh Mehtapsingh (AIR 1959 Madhya Pradesh 240); Radhey
Shiam Vs. Gur Prasad Serma & Anr. (AIR 1978 Allahabad 86) and
Datta Mal Chiranji Lal Vs. Lodh Prasad (AIR 1960 All 632).
It is no defence that the defendant is merely making a
reasonable use of his own property. No use of property is reasonable
which causes substantial discomfort to other persons. Damage to the
property may be caused after some time. The injury to health might
become evident after some time, but it does not mean that the
plaintiff should wait till such happens. Thus plaintiff may claim
preventive action by the court when he apprehends such danger.”
In view of the concurrent finding of the facts of both the Courts on
proper appreciation of evidence, we do not find any reason to admit this
appeal as it does not contain any substantial question of law.
The appeal, accordingly, stands dismissed.
Urgent photostat certified copy of this order, if applied for, be
supplied to the parties upon compliance of all requisite formalities.
I agree (Soumen Sen, J.)
(Ajoy Kumar Mukherjee, J.)
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