Under the Municipal Law no private person can claim a right to foul an ordinary drain by discharging into it what it-was not intended to carry off. Where the defendant, the owner of a shellac factory, discharged into the Municipal drain, which was not constructed or intended for carrying off such stuff, refuse liquid of an offensive character, which interfered with the ordinary comfort of the plaintiff's occupation of property and caused him special injury, it was also held that the plaintiff was entitled to restrain him. Where, moreover' the defendant discharged the liquid into the drain knowing from the condition of the drain and the nature of the liquid that it could not be efficiently carried away, but must stagnate, decompose and create a nuisance, it was held, that the defendant must be responsible for the necessary consequences of his action and was not entitled to shift the responsibility on to the Municipality by contending that, if the latter would improve the drain, there would be no nuisance. It was also held that an injunction for the permanent stoppage of the nuisance was the only effectual remedy in the case. It was further held that substantial damages should be awarded against a defendant, who has persisted in a nuisance causing material injury to the plaintiff.
1. The defendants in 0. S. No. 2 of 1976 on the file of the Court of the learned District Munsif, Srivilliputtur, are the appellants in this second appeal. They have preferred this second appeal against the Judgment and decree dt. 18th Sept. 1985 in A. S. No. 115 of 1978 on the file of the Court of the learned Subordinate Judge, Ramanathapuram at Madurai. The suit was filed for injunction to restrain the defendants appellants herein and their men not to start a brick kiln and chamber in the V schedule property. The plaintiff succeeded before the trial Court. Aggrieved by the Judgment and decree of the trial Court, the defendants preferred A. S. No. 115 of 1978 before the lower appellate Court. The lower appellate Court confirmed the judgment and decree of the trial Court and dismissed the appeal with costs. Aggrieved by the Judgment and decree of the lower appellate Court, the defendants have come forward with this second appeal before this Court.
2. The case of the plaintiff M/s. Ramkumar Ginning Firm through its sole proprietor V. L. Balasubramaniam is as follows : - In the plaint A schedule property, the plaintiff has constructed building to locate a Ginning Factory and obtained necessary licence therefore from the Panchayat Union. The defendants had purchased the B schedule property three years after the purchase of the A schedule property by the plaintiff and they are contemplating to start a brickkiln in the said property. According to the plaintiff, the proposed brick kiln in the plaint B schedule property will result in hardship since he has to store cotton and use the vacant site for the purpose of drying the cotton before ginning and the proposed brick kiln will bring about the hazard of fire in his ginning factory. It is the further case of the plaintiff that inasmuch as he has invested large capital after obtaining necessary loans from the bank for putting up construction of buildings and for locating the machineries and the proposed brickkiln business by the defendants does not involve such investments and effort, the balance of convenience is in his favour and that in the said circumstances, he is entitled to the relief of injunction.
3. The contentions of the defendants are that the brick kiln of the defendants is situated at a distance of 250 feet away from the plaintiffs Ginning Firm and therefore there is no possibility of any hazard, as apprehended by the plaintiff, that the defendants had been granted licence for starting the brick kiln by the competent authorities and therefore, the plaintiff has no right to prevent the defendants from starting the brick kiln in their own property.
4. Upon the aforesaid pleadings, the trial Court framed two issues and on consideration of the evidence, upheld the claim of the plaintiff and decreed the suit with costs. So the aggrieved defendants preferred the appeal before the lower appellate Court. On the point whether the erection of the brick kiln in the defendants' property is an actionable nuisance, which would entitle the plaintiff to the relief of injunction, the lower appellate Court considered the evidence and came to the conclusion that the erection of a brick kiln by the defendants in the adjoining land will amount to actionable nuisance and the plaintiff is entitled to seek abatement by getting the relief of injunction, as prayed for. Concurring with the trial Court, the point was answered accordingly by the lower appellate Court.
5. At the time of the admission of this Second Appeal, the following questions were framed for determination : -
" 1. Whether the courts below are justified in granting relief based on objectionable or actionable nuisance in the absence of necessary pleadings?
2. Whether the courts below were justified in not giving due weight to the admissions of P. W. 1?"
6. It is contended by Mr. K. Govindarajan, the learned counsel for the defendants appellants herein, that the location of the Ginning Firm and the brick kiln, as found by the Commissioner, would sufficiently show that the apprehension of the plaintiff is only imaginary and especially when the defendants 'had been granted licence by competent authorities to locate the brick kiln in their property, it is not open to the plaintiff to raise any objection for starting of brick kiln on imaginary grounds and seek the relief of injunction. Mr. T. R. Mani, the learned counsel for the respondent herein, submits that the Trial Court as well as the Lower Appellate Court have carefully considered the evidence available on record and came to the correct conclusion that the plaintiff respondent herein, is entitled to the relief of injunction and as such the concurrent finding of both the courts below relating to the point at issue need not be disturbed.
7. The plaintiff is seeking the relief of injunction restraining the defendants from starting a brick kiln in the B schedule property on the basis that he had made elaborate arrangements by making huge investment to start ginning firm in the adjoining property belonging to him, which is shown as A schedule property in the plaint, much earlier and that the erection of a brickkiln by the defendants will endanger the ginning firm in view of the hazard by fire involved therein. On the other hand, the defendants would contend that the brick kiln is situated at a distance of more than 250 feet away from the plaintiffs ginning firm and so there is no chance of any danger or damage to the plaintiffs firm and that they had been granted the necessary licence to erect a brick kiln there, by the competent authorities and so the plaintiff has no right to restrain them from starting the brick kiln.
8. Before considering the merits or otherwise of the case of the defendants appellants as well as that of the plaintiff respondent herein, it is useful to refer to certain broad principles to be borne in mind in dealing with an action for abatement of nuisance. Every little discomfort or inconvenience cannot be brought on to the category of actionable nuisance. Consistent with the circumstances under which a person is living, he may have to put tip with a certain amount of inevitable annoyance or inconvenience. But, if such inconvenience or annoyance exceeds all reasonable limits, then the same will amount to actionable nuisance. The question as to what would be a reasonable limit in a given case will have to be determined on a consideration as to whether there has been a material interference with the ordinary comfort and convenience of life under normal circumstances. Due importance has also to be given to a consideration of the aspect as to whether the undertaking which is complained of as nuisance is a new or extraordinary one or is only one of common occurrence in that particular locality. In order to constitute an act of nuisance, there must be interference with the use or enjoyment of land or some right over or in connection with it, causing damage to the plaintiff, though the term nuisance is incapable of exact definition. The whole law on t4e aspect really represents a balance or conflicting interests. It is repeatedly said that in the case involving, the question of nuisance the rule is Sic Utero Tuo Ut Alienum Non Laedas, but, the maxim is not very informative. In fact, the law repeatedly recognises that a man may use his own property without committing a nuisance. It is only if such use is unreasonable, then it becomes unlawful. Reasonableness plays an important part in determining whether or not there has been a nuisance. The primary facts will be whether the defendants had committed .certain act attributed to them. The allied question will be-whether the evidence in that behalf will be reliable. Further, this will again be a question of fact whether any discomfort was being caused to the plaintiff or not and if so whether such discomfort was material or substantial. It is on last aspect of the matter that the question will arise whether the act or omission amounts to a nuisance. What is reasonable so as to constitute nuisance or not would be an inference of law to be drawn by the court from the proved facts. The above are the well accepted principles laid down in a number of decisions by Courts.
9. The general principles of law relating to nuisance between neighbouring properties is dealt with by 'Halsbury's Laws of England' - Fourth Edition by Lord Hailsham, Vol. 34, as given below: -
"GENERAL PRINCIPLES:- Apart from any limit to the enjoyment of his property which may have been acquired against him by contract, grant or prescription, every person is entitled, as against his neighbour, to the comfortable and healthful enjoyment of the premises owned or occupied by him whether for pleasure or business. In deciding whether in any particular case his right has been invaded and a nuisance thereby caused, 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 obtaining among the English people. It is also necessary to take into account the circumstances and character of the locality in which the complainant is living and any similar annoyances which exist or previously existed there. At present, the ability to receive television free from occasional, even if recurrent and severe, electrical interference is not so important a part of an ordinary householder's enjoyment of his property as to make such interference an actionable nuisance.
SMOKE, FUMES AND SMELLS.
Smoke, fumes or smells, either together or singly, which materially interfere with the ordinary physical comfort of human existence, when judged by the standard previously stated, constitute d nuisance in law. They need not be actually noxious or injurious to health; and it is immaterial that there are other sources of discomfort in the neighbourhood if the one complained of is a material addition to it. The fact that the nuisance existed long before the complainant occupied his premises does not relieve the offender, unless, he can show that, as against the complainant, he has acquired the right to commit the annoyance complained of. If a nuisance exists, it cannot be justified on the ground that the place is a suitable or convenient one; or that it arises from the defendant's use of his own property in a common and useful manner and for his own convenience; or that the benefit to the public in the neighbourhood far exceeds the inconvenience to the plaintiff; or that the defendant has been granted the right to carry on the trade if it is not proved that the trade cannot be carried on without causing inconvenience; or that others in the vicinity do not complain.
In these cases the question of nuisance or no nuisance is pre-eminently one of degree, and no specific rules can be laid down. Circumstances and the locality must also be considered, for that which would be a nuisance in one district may be tolerated in another.
FUMES ETC., FROM COMMERCIAL OPERATIONS : Apart from fumes and smells arising from trades held to be offensive, the vitiation of the atmosphere may be held to be a nuisance and capable of being restrained by injunction when it arises from the burning of bricks' manure works, sewage works, glass works, cement works, chemical works, smoke from railway engine sheds, the staling of horses left standing in a street opposite business premises for an unreasonable time, gasworks, the smelting of ore, a blacksmith's shoeing -forger, smoke from factory engines, the discharge and deposit of manure at a railway siding or of night soil and other waste matter, the burning of mineral refuse, coke-ovens, stables, the deposit of house and street refuse, a cooking stove, the manufacture of fish guano and fish oil and the carrying on of a fried fish shop.
A hospital for infectious diseases is not necessarily a nuisance, nor is it an offensive business under public health legislation.
WHEN SMOKE AMOUNTS TO NUISANCE: Even when unaccompanied by noise or noxious vapours, and although not injurious to health, smoke may constitute an actionable nuisance or be the subject of indictment provided that the annoyance produced is such as materially to interfere with ordinary comfort. The fact that the smoke issues from premises in a manufacturing town does not affect the question of nuisance if it can be shown that the annoyance otherwise caused has been materially increased. Nuisances of this kind are now to a substantial extent regulated by statute."
10. In Galstaun v. Doonia Lal Seal, (1905) ILR 32 Cal 697, it was held that under the Municipal Law no private person can claim a right to foul an ordinary drain by discharging into it what it-was not intended to carry off. Where the defendant, the owner of a shellac factory, discharged into the Municipal drain, which was not constructed or intended for carrying off such stuff, refuse liquid of an offensive character, which interfered with the ordinary comfort of the plaintiff's occupation of property and caused him special injury, it was also held that the plaintiff was entitled to restrain him. Where, moreover' the defendant discharged the liquid into the drain knowing from the condition of the drain and the nature of the liquid that it could not be efficiently carried away, but must stagnate, decompose and create a nuisance, it was held, that the defendant must be responsible for the necessary consequences of his action and was not entitled to shift the responsibility on to the Municipality by contending that, if the latter would improve the drain, there would be no nuisance. It was also held that an injunction for the permanent stoppage of the nuisance was the only effectual remedy in the case. It was further held that substantial damages should be awarded against a defendant, who has persisted in a nuisance causing material injury to the plaintiff.
11. In Bay Bikini v. Perished Jiving, (1916) ILR 40 Boom 401: (AIR 1915 Boom 284), it was held that where the nuisance was of the kind to injure the health or seriously imperial the life of those complaining of it, the court would not hesitate to prevent it by way of injunction; but where the nuisance went no further than to diminish the comforts of human life, there would always be a question whether the court would proceed against him who causes that nuisance by injunction, or compensate the sufferer in damages.
12. In Sheikh Is mail Sahib v. Venkatanarasimhulu Iyah, (1936) 71 Mad U 400: (AIR 1936 Mad 905), it was held that it is not quite correct to say that an act will be actionable nuisance only if society does not tolerate it. No doubt the question is one of degree and in applying the law to any particular case, one must be guided to a great extent by commonsense and the ordinary standard of comfort prevailing in the neighbourhood. But this does not mean that it is entirely left to the neighbourhood to decide which is an actionable nuisance and which is not. It is the court which has to decide whether in view of the ordinary standard of comfort prevailing among ordinary people living in the locality that act is one which would amount to serious invasion of the right of a person to comfortable dwelling in his own house. Pandrang Raw. J. has further observed in this decision as follows : -
"As stated by Lord Halsbury in Colls v. Home and Colonial Stores Ltd., (1904) AC 179, 'A dweller in towns cannot expect to have as pure air, as free from smoke, smell and noise as if he lived in the country, and distant from other dwellings, and yet an excess smoke, smell and noise may give a cause of action, but in each of such cases it becomes a question of degree, and the question is in each case whether it amounts to a nuisance which will give a right of action."
That is question of fact to be decided by the court in each case. It is enough to refer to the latest case on the subject in Vanderapant v. Mayfair Hotel Company Limited (1930) 1 Ch D 138 at 165, where the law on the subject is stated thus :
"Apart from any right which may have been acquired against him by contract, grant or prescription, every person is entitled as against his neighbour to the comfortable and healthful enjoyment of the premises occupied by him, and in deciding whether in any particular case, his right has been interfered with and a nuisance thereby caused, 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 plain and sober and simple notions obtaining among English people." change in this statement of the law which is required to make it applicable to this country is to substitute the word 'Indian' for 'English'.
13. In Bhanwar Lal v. Dhanraj, , it was observed by Kan Singh, J. in paras 24 and 25, at page 216, as follows : -
"24. The term, 'nuisance' is incapable of an exact definition as observed in Winfield on Tort (VI Edition) at p. 536. But its concept is well understood. As the Author has observed it may be described as "unlawful interference with a persons's use or enjoyment of land, or of some right over, or in connection with it." It is a common law wrong having a long history. There must be interference with the use or enjoyment of land, or of some right over or in connection with it, causing damage to the plaintiff. The forms of this are innumerable. Noise, smells, pollution of air or water are the most usual instances, but there are many others. The two main heads are injury to property and interference with personal comfort. The escape of fumes, which kill vegetation and cattle, is an illustration of the first, and excessive tolling of church bells of the second. But whatever be the type, it does not follow that any harm constitutes a nuisance. The whole law on the subject really represents a balancing of conflicting interests. Some noise, some smell, some vibration, everyone must endure in any modern town, otherwise modern life there would be impossible. It is repeatedly said in nuisance cases that the rule is sic utere tuo ut alienum non laedas, but the maxim is not informative ' If it means that no man is ever allowed to use his property so as to injure another, it is palpably false. If it means that a man in using his property may injure his neighbour but not if he does so unlawfully, it is not worth stating. In fact, the law repeatedly recognises that a man may use his own so as. to injure another without committing a nuisance. It is only if such use is unreasonable that it becomes unlawful. The homely phrases, "Give and take", "live and let live" are much nearer the truth than the Latin Maxim. "A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be .interfered with."
25. Where the interference is with personal comfort, it is not necessary in order to establish a nuisance that any injury to health should be shown. It is enough that there is material interference with the physical comfort of human existence reckoned "not merely according to the elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people." The Author proceeds to say that one of the chief tests is reasonableness -"What is reasonable according to the ordinary usages of mankind in society or more correctly in a particular society" and it is important to distinguish this term in the law of nuisance from its use elsewhere in the law of tort, especially in negligence. Reasonable-ness plays an important part in determining whether or not there has been a nuisance. Just as England Courts deal with a case according to English people habits of living, in India we have to go by the habits of Indian People."
14. In Radhey Shiam v. Gur Prasad, , it was held that permanent injunction against defendant can be issued if it is proved that he runs a flour mill materially affecting physical comforts of the plaintiff. A person can claim injunction to stop nuisance if in a noisy locality there is substantial addition to the noise by introduction of some machine, instrument or performance at defendant's premises which materially affects the physical comforts of the occupants of the plaintiff's house. The appellate court below has found as a fact that the running of the impugned machines would seriously interfere with the physical comfort of the plaintiff and the members of his family according to the ordinary notions prevalent among reasonable men and women. This finding being based on evidence is not assailable in second appeal. The plaintiffs were, therefore, rightly held to .be entitled to the injunction claimed by them.
15. In Dhanna Lal v. Chittar Singh, , the principles relating to private nuisance have been succinctly enumerated as follows :
(1) Constant noise, if abnormal or unusual, can be an actionable nuisance if it interferes with one's physical comforts.
(2) The test of a nuisance causing personal discomfort is the actual local standard of comfort, and not an ideal or absolute standard.
(3) Generally, unusual or abnormal noise on defendants premises which disturbs sleep of the occupants of the plaintiffs house during night, or which is so loud during day time that due to it one cannot hear ordinary conversation in the plaintiff's house or which cannot allow the occupants of the plaintiffs house to carry on their ordinary work is deemed to be a noise which interferes with one's physical comforts.
(4) Even in a noisy locality, if there is substantial addition to the noise by introduction of some machine, instrument or performance at defendant's premises which materially affects the physical comforts of the occupants of the plaintiff's house, then also the noise will amount to actionable nuisance.
(5) If the noise amounts to an actionable nuisance, the defence that the defendant is making a reasonable use of his own property will be ineffectual. No use of one's property is reasonable if it causes substantial discomfort to other persons. "If a man creates a nuisance," said Kekewish J., in Attorney General V. Cole & Sons, (1901) 1 Ch 205 at p. 207. "He cannot say that he is acting reasonably. The two things are self-contradictory."
(6) If the defendant is found to be carrying on his business so as to cause a nuisance to his neighbours, he is not acting reasonably as regards them, and may be restrained by injunction, although he may be conducting his business in a proper manner according to rules framed in this behalf either by the Municipality or by the Government. The latter defence can be effective in a case of public nuisance, but not in that of a private nuisance.
(7) If an operation on the defendant's premises cannot by any care and skill be prevented from causing a private nuisance to the neighbours, it cannot be undertaken at all, except with the consent of those injured by it.
(8) The right to commit a private nuisance can in certain circumstances, be acquired either by prescription or by the authority of a statute."
16. In the decision in Ram Lal v. Mustafabad 0. & C. G. Factory, , the following principles relating to actionable
nuisance were laid down : -
(1) 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.
(2) As the precise degree of annoyance or inconvenience does not admit of exact calculation, each case depends largely on its. own facts.
(3) 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.
(4) 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.
(5) Actionable nuisance does not admit pf enumerations and any operation which causes injury to health, to property, to comfort, to business, or to public morals, would be deemed a nuisance.
(6) 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.
(7) Jarring and vibration caused to the plaintiff's premises, and, noises exceeding a certain norm and interfering with the actual physical comfort of persons of ordinary sensibilities, are deemed actionable nuisances. They have to be of such an intensity as unreasonably interfere 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 quantum of noise that, constitutes actionable nuisance and it is a matter which depends upon the circumstances of each case.
(8) Once a noise is considered to be a nuisance of the requisite degree, it is no defence to contend, that it was in consequence of a lawful business or arose from lawful amusements or from places of religious worship. It was held that the defendants were liable for the nuisance committed by them, which was of a degree and of such intensity as to make it actionable.
17. In Pakkle v. Aiyasami, , it was held that when
once it is established that the villagers have a common right over the water in the tank for purposes of using it for bathing and drinking purposes, any interference with that right would give them a cause of action, even though the interference is not in respect of a land belonging to the plaintiffs. The action of the defendants would amount to a nuisance. Pollution even of underground water is also actionable. The term pollution is wide enough to include any alteration of the natural quality of the water whereby it is rendered less fit for any purpose for which in its natural state it is capable of being used. Pollution is actionable without proof of actual damage. Any sensible alteration which renders the water less -fit for any purpose is an actionable wrong even though the plaintiff has not in fact been prevented from making tiny use of the water which he has hitherto made or now desires to make of it. There is no right or reasonable pollution.
Reasonable pollution.
The plaintiffs would be entitled to an injunction even though the land in respect of which they claimed injunction is not owned by them and the only right which they have is a common right over the property and it is no defence to the action of the plaintiffs that the people other than the defendants have already done something which has had the effect of making the water in the tank brackish.
It was held further that a person acquire a right to the water of a pond free from pollution, though he may have no proprietorship in it. The, fact of a person having established his right at law will not as a matter of course entitle him to an injunction, particularly where the injunction would not restore the plaintiff to the right he has established.
If by reason of the whole change in the condition of the surrounding country and neighbourhood the tank has become polluted to such an extent that it cannot be used for the purposes of the plaintiff, the granting of the injunction to restrain the wrong-doer, from continuing his works would do no good to the plaintiffs. If, notwithstanding a certain degree or pollution of the water, the plaintiffs can still use the water, although not so usefully, and then the defendant pollutes it to make it so much worse that they can use it in a less effective manner than they did before and if that were the state of the case, of course, they would have a right to an injunction.
18. In Datta Mal Chiranji Lal v. L. L. Prasad, , it was held that the running of the mills caused inconvenience and serious discomfort to the plaintiff and the residents of his house and its running amounted to a private nuisance which could not be permitted. It was further held that the defendant established an electric flour-mill in a premises in the bazar locality of Mussorie, which was adjacent to the plaintiff's house. The running of the mill produced a very unpleasant noise, which caused great inconvenience to the plaintiff and the members of his family and it generated vibrations on account of which the walls, floors, doors, windows, etc. in the plaintiffs house shook and rattled so that they could not have the necessary place and freedom from noise for following their normal avocations during the day and could not have a quiet rest at night. In the locality there was no other flour mill. It is true that the standard of comfort to which the plaintiff is entitled should be a reasonable standard and the degree of comfort should be such as might be expected by an average person. But the standard of comfortable living must vary necessarily from place to place. The immunity from discomfort or inconvenience must, therefore, be dependent considerably on the place where a person resides. In the instant case, which comes from Mussorie, it would not be unreasonable to accept the plaintiff 's contention that he is entitled to such freedom from loud and uncomfortable noise as might enable him to live peacefully in his house. It is not essential in a case like this to prove either that the property has been damaged or that the health of the inhabitants of the plaintiff's house has been impaired.
19. The word 'nuisance' is defined by the provision of S. .3 cl. (25) of the Tamil Nadu Public Health Act, 1939 (Tamil Nadu Act III of 1939) as follows
"25) "Nuisance" included any act, omission,. place or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or disturbance to rest or sleep or which is or may be dangerous to life or injurious to the health or property of the public or the people in general who dwell or occupy property in the vicinity, or persons who may have occasion to use any public right".
Sec. 41 of the Tamil Nadu Public Health Act, 1939 (Tamil Nadu Act III of 1939) reads as follows : -
"41. Without prejudice to the generality of the definition of the expression "nuisance" contained in Cl. (25) of S. 3, the following shall be deemed specifically to be nuisances for the purposes of this Chapter : -
(1) any premises in such a state as to be prejudicial to health or a nuisance;
(2) any pond, pool ditch, gutter, watercourse, water-trough, latrine, cess-pool, drain or ash-pit which is so foul or in such a state as to be prejudicial to health or a nuisance;
(3) any animal kept in such a place or manner as to be prejudicial to health or a nuisance;
(4) any accumulation or deposit of refuse or other matter which is prejudicial to health or a nuisance;
(5) any factory not being a factory governed by the provisions of the Factories Act, 1934 workshop or work-place, which is not provided with sufficient means of ventilation, or in which sufficient ventilation is not maintained, or which is not kept clean or not kept free from noxious effluvia, or which is so over-crowded while work is carried on as to be prejudicial to the health of those employed therein;
(6) any fireplace or furnace which does not as far as practicable consume the smoke arising from the combustible used therein, and which is used for, working engines( by steam, or in any mill, factory, dye-house, brewery, bake-house or gas work, or in any manufacturing or trade process whatsoever;
(7) any chimney sending forth smoke in such quantity as to be a nuisance; and
(8) any noise, vibration, dust, cinders, irritating smell or offensive odor produced by a factory, workshop or workplace which is a nuisance to the neighborhood".
20. The word "nuisance" is defined by the Tamil Nadu District Municipalities Act, 1920 (Tamil Nadu Act V of 1920) as follows : -
"Nuisance" includes any act, omission, place or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or which is or may be dangerous to life or injurious to health or property".
21. In the instant case before us, we are concerned with the tort that may be committed with respect to brick-burning. In this regard, the English law on the subject is very enlightening. The case of Rylands v. Fletcher, (1864) LR I Ex. 265 is an instance of injury to property due to a nuisance, viz., flooding of mines by the escape of water from a reservoir.
22. In Balfour v. Barty King (1957) 1 Q. B. 496 (CA), the defendants were the owners and occupiers of a dwelling-house which was contiguous to that of the plaintiff. On Jan. 29, 1954, the second defendant employed an independent contractor to thaw frozen pipes in her loft, which contained a large quantity of combustible material. The independent contractor applied a blow lamp to the pipes which were, in parts, larged with felt; the felt caught fire and the fire spread rapidly throughout the left and to the plaintiffs house. The court found that the fire was caused by the negligence of the independent contractor because, although the use of a blow lamp was one of the normal methods of thawing pipes, it was negligent to use one in proximity to inflammable material. It was held that a householder was liable for an escape of fire from his premises to those of his neighbour where the fire was caused by the negligence of an independent contractor when the householder had invited to his house to carry out work there, and, therefore, the defendants were liable in damages to the plaintiff.
22A. In Walter v. Selfe, (1851), 20 U Ch 433 it is held as follows:--
"Mr. Walter, one of the plaintiffs in this cause, was, and had been for some years previously to 1850, the owner of a house, with a garden and pleasure-ground attached to it, at Surbiton, in Surrey.
In 1850, the defendant purchased a piece of land, about an acre in extent, situated about 100 yards distant from the plaintiff's house, and commenced the manufacture of bricks from the clay taken from this land by burning.
This was a motion made by Mr. Walter and the tenant of the house and grounds under Mr. Walter, for the purpose of obtaining injunction to restrain the defendant from continuing to burn brick on the land". In this decision K. Bruce, V. C., observed at page 436 as follows : -
"The paucity of authority on the subject of brick burning is a circumstance unfavourable to the defendant, but I am not aware of any authority for saying that it cannot be a private nuisance. I do not consider the case of The Duke of Grafton v. Hilliard (1736-64 ER 853) noticed in The Attorney General v. Cleaver (1811-34 ER 297), by Lord Eldon, and more fully in Mr. Blunt's edition of Ambler, to have so decided. Lord Hardwicke's order of the 11th of June 1736, which I have read, seems to have proceeded upon the special circumstances of that case, and does not, I think, govern the present, nor affect it in the defendant's favour seeing that he and the plaintiffs concur in desiring not to go before a jury or to be referred to a court of law in any way. The question, it appears, was decided recently in an arbitration by a distinguished member of this bar, whose accuracy and learning are universally acknowledged. He determined, between two neighbouring proprietors, that brick burning, the clay being the clay on the land of one, was a private nuisance to the other. It was considered by Vice Chancellor Shadwell, before whom and Lord Lyndhurst it had been previously, to be so; and two judges now on the Bench, whose opinions I estimate very highly, have informed me that they consider a private nuisance to be committed by a man who burns bricks on his own land, made of his own clay, if he does it so near to the house of his neighbour as to cause him substantial inconvenience and material discomfort. In the absence of special circumstances, disabling the occupier from complaining, it appears to me, in the present instance, that the defendant, as well as the plaintiffs, declining to go before a jury, and, asking the court of Chancery to decide between them, without assistance in any shape from the court of law, I ought to grant an injunction".
23. In Bamford v. Turnley, (1861-1873) All Er Rep 706, it was held that the defendant created a brick-clamp upon his land which was near the plaintiff's premises. He burned a large quantity of bricks there and caused fumes to arise there from, which resulted in a sensible diminution of the comfortable enjoyment of the plaintiff's habitation. It was proved that the erection and use of the clamp by the defendant was temporary and for the sole purpose of making bricks on his land from the clay found there with a view to the erection of houses, and also that the clamp was placed upon that part of defendant's land which was most distant from the plaintiff's house so as to create no further annoyance than necessary. The trial Judge directed the jury that, if they should be of opinion that the place where the bricks were burnt was proper and convenient and the burning of the bricks under the circumstances a reasonable use by the defendant of his land, the defendant was entitled to a verdict, notwithstanding that they were also of opinion that the burning interfered with the plaintiff's comfort. It was also held that the true doctrine was that whenever, taking all the circumstances into consideration, including the nature and extent of the plaintiff's enjoyment before the acts complained of, the annoyance caused by those acts was sufficiently great to amount to a nuisance according to the ordinary rule of law an action would lie wherever the locality of the nuisance might be, and, therefore, the direction of the learned Judge was wrong.
24. In Beardmore v. Tredwell, (1862) 31 U Ch 892, it was held that where the comfort and enjoyment of a mansion were injured, and the trees planted and standing for ornament and to exclude the view of unsightly objects from the mansion were in some cases destroyed, and in many cases injured, by brick-burning, the Court granted an injunction to restrain such brick-burning as, although the defendant carried on the brick-burning complained of in order to execute a contract for the construction of the fortifications on Portsdown Hill, near Portsmouth, it appeared that the brick-burning might have been carried on elsewhere on the land in the defendant's occupation without any inconvenience to the plaintiff, or without that degree of injury to the plaintiff which would entitle her to complain.
25. In Cavey v. Ledbitter, (1863) 13 CB NS 470, it was held as follows : -
"It is no answer to an action for a nuisance in burning bricks so near to the plaintiffs dwelling house as to cause substantial annoyance and discomfort to himself and his family, that the act complained of was done at a convenient time and place.
Therefore, in such A case, the refusal of the judge to leave it to the jury to say whether the bricks had been burned in a convenient place for the purpose, is no misdirection. The Judge having directed the jury to find for the plaintiff, if there was annoyance to a substantial degree it was held, that the said direction is in accordance with the decision of the Exchequer Chamber in Bamford v. Turnley, (1861-1873) 31 LJ QB 286, and it was a proper direction".
26. In the instant case it admits of no doubt that in the A Schedule Property belonging to the plaintiff, he has made necessary arrangement for locating a Ginning factory much earlier than the defendants' contemplated erection of a brickkiln in the B Schedule Property belonging to them. On the side of -the plaintiff, the approved plans by the Factory Inspector, the plaintiff's application to the Assistant Director of Industries and Commerce, the permission accorded by the Panchayat Union in favour of the plaintiff, the letter from the Assistant Director of Industries and Commerce to the plaintiff are all marked as Exts. A-1 to A-3 and A-6 respectively and they are of the years 1973 and 1974, whereas the approved plan for the brickkiln and the licence issued to the first defendant by the Panchayat Union, which are marked as Exts. B-2 and B-4 respectively are of the year 1977. In this. case, we are able to find from the materials on record that even in the month of August, 1975, the plaintiff has intimated the Panchayat Union of Rajapalayam, his objection to the proposed erection of the brickkiln by the defendants near his Ginning factory and that in pursuance of the said letter by the plaintiff, the panchayat Union, Rajapalayam had addressed the defendants a letter, the copy of which is Ex. A10 directing them to obtain necessary permission from the Panchayat Union for locating the brickkiln in some other place and threatening legal action in case of violation. Then again, on 12-10-1975, the Panchayat Union has addressed a letter to the defendants that they should not start any brickkiln in S. No. 149 and 149/2, since the plaintiff had objected to the erection of brickkiln there, as. it would- endanger his Ginning factory in S. Nos. 150/1 and 160/1 and that they should obtain necessary "no objection certificate" from the District Health Officer and submit the same to the Panchayat Union and then, only the granting of licence to them would be considered. Of course, the defendants had submitted a plan duly approved by the District Health Officer, Ramanathapuram at Madurai as evidenced by Ex. B-2 and on that basis, the Panchayat Union by its letter Ex. B-3 on 12-4-1977 granted permission to the defendants to locate the brickkiln in S. Nos. 149/1 & 2 and also issued the licence Ex. B-4 dated 15-4-1977 for the brickkiln for 1977-78.
27. It is contended on behalf of the defendants/appellants herein that it is not open to the plaintiff to raise any voice of protest against the erection of the brickkiln in the B Schedule property, since the permission has been granted by the competent authority. It is relevant to note that the accord of the permission by the Municipality to the defendants by the letter Ex. B-3 cannot, prevent the plaintiff to put forward his defence that the erection of the brickkiln in the adjoining property by the defendants/appellants herein, involves the hazard of fire to the Ginning factory and the defendants had not even adhered to the approved plan for the erection of the brickkiln. Ex. A-12 is the letter addressed by the District Fire Officer, Tirunelveli to the Commissioner, Panchayat Union, Rajapalayam. on 16-12-1975 and it refers to the petition dt. 1-10-1975 by the plaintiff. It is seen from Ex. A-12 that the Additional District: Fire Officer inspected the locality, where the Ginning Factory was to be located on 24-11-1975, and submitted a report that the fumes from the brickkiln will spoil the quality of the cotton in the Ginning factory and that during the windy season, sparks from the brickkiln are likely to cause fire outbreak in the cotton godown and therefore the adjacent property .is not fit for locating a brickkiln.
28. In Ex. A-12 the District Fire Officer has intimated the Commissioner, Panchayat Union that in view of the report of the Additional District Fire Officer, the adjoining property is not fit for locating a brickkiln and so, he need not grant any permission for locating a brickkiln in that place. In Ex. B-3 letter dt. 12-4-1977 written by the Panchayat Union, Rajapalayam to the defendants, there is no reference to the aforesaid letter from the Fire Officer, Tirunelveli or any indication of consideration of the report of the Fire Officer. Therefore, it is clear that while granting permission to the defendants for locating the brickkiln, the aforesaid report of the Fire Officer had not been considered at all by the Panchayat Union Commissioner.
29. The letter Ex. A-12 written by the District Fire Officer, Tirunelveli, addressed to the defendants clearly demonstrates that the apprehension of danger to the Ginning factory by the erection of the brickkiln in the adjoining property expressed by the plaintiff is well founded and there is no oblique motive on the part of the plaintiff in raising the objection. In the instant case, before us, the Advocate Commissioner appointed by the Court had inspected the locality and submitted the report Ex. C- I with a plan Ex. C-2. He has mentioned in his report that ACBCD is the plaintiff's factory and godown shed, while CDEF is the vacant land of the plaintiff, that there is a compound wall measuring 10' X 8" along CD, that the length of the vacant site .from the compound wall is 112 feet, that south of EF is the land of the defendants and a brickkiln is situated therein at a distance of 21 feet south of CD compound wall and that the brickkiln is measuring 4' 9" in height. When we look into Ex. B-2 the approved plan submitted by the defendants, it is seen that for a radius of 250' which is equivalent to 76.20 metres, there is no obstruction for the brickkiln and it is also shown therein that the Ginning Factory in S. Nos. 150/1 and 168/1 belonging to the plaintiff is situated at a distance of 190 metres on the north east direction. In the light of the Commissioner's report, it is evident that the details furnished in the approved plan do not reflect the real situation of the surroundings and the fact remains that the Panchayat Union had granted permission to the defendants only on the data furnished by the aforesaid approved plan Ex. B-2. So it is clear that the defence cannot certainly depend upon the fact of accord of permission by the Panchayat Union to the defendants, since in the face of the Commissioner's report it is evident that the location of the brickkiln in the defendants' property is not in accordance with, the approved plan submitted by him, to, the municipality. So both the Courts below have correctly held on the evidence available on record that the brickkiln of the defendants will certainly amount to an actionable nuisance and that the plaintiff, who has made elaborate preparations to start the Ginning factory investing large funds, has got every right to resist the erection of the brickkiln by the defendants in the adjoining land. Of course, it is seen from the materials on record that there are certain brickkilns owned by the other persons in the neighbourhood. But, according to the plaintiff those persons had promised to remove the brickkilns as soon as he started Ginning factory. It is not for the defence to say that because there are other brickkilns in the neighbourhood, they are also entitled to have a brickkiln near the plaintiffs factory. It is always open to the plaintiff to take appropriate action against the persons having the other brickkilns also for abatement of nuisance to safeguard his ginning factory. Thus, in the instant case, we find that the erection of a brickkiln by defendants in the adjoining land will amount to an actionable nuisance and the plaintiff is entitled to seek abatement of such nuisance by getting the relief of injunction as prayed for. Hence, the second appeal is dismissed. But under the circumstances, there is no order as to costs.
30. Appeal dismissed.
Madras High Court
Shanmughavel Chettiar And Ors. vs Sri Ramkumar Ginning Firm on 18 December, 1985
Equivalent citations: AIR 1987 Mad 28
Bench: Swamikkannu
JUDGMENT1. The defendants in 0. S. No. 2 of 1976 on the file of the Court of the learned District Munsif, Srivilliputtur, are the appellants in this second appeal. They have preferred this second appeal against the Judgment and decree dt. 18th Sept. 1985 in A. S. No. 115 of 1978 on the file of the Court of the learned Subordinate Judge, Ramanathapuram at Madurai. The suit was filed for injunction to restrain the defendants appellants herein and their men not to start a brick kiln and chamber in the V schedule property. The plaintiff succeeded before the trial Court. Aggrieved by the Judgment and decree of the trial Court, the defendants preferred A. S. No. 115 of 1978 before the lower appellate Court. The lower appellate Court confirmed the judgment and decree of the trial Court and dismissed the appeal with costs. Aggrieved by the Judgment and decree of the lower appellate Court, the defendants have come forward with this second appeal before this Court.
2. The case of the plaintiff M/s. Ramkumar Ginning Firm through its sole proprietor V. L. Balasubramaniam is as follows : - In the plaint A schedule property, the plaintiff has constructed building to locate a Ginning Factory and obtained necessary licence therefore from the Panchayat Union. The defendants had purchased the B schedule property three years after the purchase of the A schedule property by the plaintiff and they are contemplating to start a brickkiln in the said property. According to the plaintiff, the proposed brick kiln in the plaint B schedule property will result in hardship since he has to store cotton and use the vacant site for the purpose of drying the cotton before ginning and the proposed brick kiln will bring about the hazard of fire in his ginning factory. It is the further case of the plaintiff that inasmuch as he has invested large capital after obtaining necessary loans from the bank for putting up construction of buildings and for locating the machineries and the proposed brickkiln business by the defendants does not involve such investments and effort, the balance of convenience is in his favour and that in the said circumstances, he is entitled to the relief of injunction.
3. The contentions of the defendants are that the brick kiln of the defendants is situated at a distance of 250 feet away from the plaintiffs Ginning Firm and therefore there is no possibility of any hazard, as apprehended by the plaintiff, that the defendants had been granted licence for starting the brick kiln by the competent authorities and therefore, the plaintiff has no right to prevent the defendants from starting the brick kiln in their own property.
4. Upon the aforesaid pleadings, the trial Court framed two issues and on consideration of the evidence, upheld the claim of the plaintiff and decreed the suit with costs. So the aggrieved defendants preferred the appeal before the lower appellate Court. On the point whether the erection of the brick kiln in the defendants' property is an actionable nuisance, which would entitle the plaintiff to the relief of injunction, the lower appellate Court considered the evidence and came to the conclusion that the erection of a brick kiln by the defendants in the adjoining land will amount to actionable nuisance and the plaintiff is entitled to seek abatement by getting the relief of injunction, as prayed for. Concurring with the trial Court, the point was answered accordingly by the lower appellate Court.
5. At the time of the admission of this Second Appeal, the following questions were framed for determination : -
" 1. Whether the courts below are justified in granting relief based on objectionable or actionable nuisance in the absence of necessary pleadings?
2. Whether the courts below were justified in not giving due weight to the admissions of P. W. 1?"
6. It is contended by Mr. K. Govindarajan, the learned counsel for the defendants appellants herein, that the location of the Ginning Firm and the brick kiln, as found by the Commissioner, would sufficiently show that the apprehension of the plaintiff is only imaginary and especially when the defendants 'had been granted licence by competent authorities to locate the brick kiln in their property, it is not open to the plaintiff to raise any objection for starting of brick kiln on imaginary grounds and seek the relief of injunction. Mr. T. R. Mani, the learned counsel for the respondent herein, submits that the Trial Court as well as the Lower Appellate Court have carefully considered the evidence available on record and came to the correct conclusion that the plaintiff respondent herein, is entitled to the relief of injunction and as such the concurrent finding of both the courts below relating to the point at issue need not be disturbed.
7. The plaintiff is seeking the relief of injunction restraining the defendants from starting a brick kiln in the B schedule property on the basis that he had made elaborate arrangements by making huge investment to start ginning firm in the adjoining property belonging to him, which is shown as A schedule property in the plaint, much earlier and that the erection of a brickkiln by the defendants will endanger the ginning firm in view of the hazard by fire involved therein. On the other hand, the defendants would contend that the brick kiln is situated at a distance of more than 250 feet away from the plaintiffs ginning firm and so there is no chance of any danger or damage to the plaintiffs firm and that they had been granted the necessary licence to erect a brick kiln there, by the competent authorities and so the plaintiff has no right to restrain them from starting the brick kiln.
8. Before considering the merits or otherwise of the case of the defendants appellants as well as that of the plaintiff respondent herein, it is useful to refer to certain broad principles to be borne in mind in dealing with an action for abatement of nuisance. Every little discomfort or inconvenience cannot be brought on to the category of actionable nuisance. Consistent with the circumstances under which a person is living, he may have to put tip with a certain amount of inevitable annoyance or inconvenience. But, if such inconvenience or annoyance exceeds all reasonable limits, then the same will amount to actionable nuisance. The question as to what would be a reasonable limit in a given case will have to be determined on a consideration as to whether there has been a material interference with the ordinary comfort and convenience of life under normal circumstances. Due importance has also to be given to a consideration of the aspect as to whether the undertaking which is complained of as nuisance is a new or extraordinary one or is only one of common occurrence in that particular locality. In order to constitute an act of nuisance, there must be interference with the use or enjoyment of land or some right over or in connection with it, causing damage to the plaintiff, though the term nuisance is incapable of exact definition. The whole law on t4e aspect really represents a balance or conflicting interests. It is repeatedly said that in the case involving, the question of nuisance the rule is Sic Utero Tuo Ut Alienum Non Laedas, but, the maxim is not very informative. In fact, the law repeatedly recognises that a man may use his own property without committing a nuisance. It is only if such use is unreasonable, then it becomes unlawful. Reasonableness plays an important part in determining whether or not there has been a nuisance. The primary facts will be whether the defendants had committed .certain act attributed to them. The allied question will be-whether the evidence in that behalf will be reliable. Further, this will again be a question of fact whether any discomfort was being caused to the plaintiff or not and if so whether such discomfort was material or substantial. It is on last aspect of the matter that the question will arise whether the act or omission amounts to a nuisance. What is reasonable so as to constitute nuisance or not would be an inference of law to be drawn by the court from the proved facts. The above are the well accepted principles laid down in a number of decisions by Courts.
9. The general principles of law relating to nuisance between neighbouring properties is dealt with by 'Halsbury's Laws of England' - Fourth Edition by Lord Hailsham, Vol. 34, as given below: -
"GENERAL PRINCIPLES:- Apart from any limit to the enjoyment of his property which may have been acquired against him by contract, grant or prescription, every person is entitled, as against his neighbour, to the comfortable and healthful enjoyment of the premises owned or occupied by him whether for pleasure or business. In deciding whether in any particular case his right has been invaded and a nuisance thereby caused, 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 obtaining among the English people. It is also necessary to take into account the circumstances and character of the locality in which the complainant is living and any similar annoyances which exist or previously existed there. At present, the ability to receive television free from occasional, even if recurrent and severe, electrical interference is not so important a part of an ordinary householder's enjoyment of his property as to make such interference an actionable nuisance.
SMOKE, FUMES AND SMELLS.
Smoke, fumes or smells, either together or singly, which materially interfere with the ordinary physical comfort of human existence, when judged by the standard previously stated, constitute d nuisance in law. They need not be actually noxious or injurious to health; and it is immaterial that there are other sources of discomfort in the neighbourhood if the one complained of is a material addition to it. The fact that the nuisance existed long before the complainant occupied his premises does not relieve the offender, unless, he can show that, as against the complainant, he has acquired the right to commit the annoyance complained of. If a nuisance exists, it cannot be justified on the ground that the place is a suitable or convenient one; or that it arises from the defendant's use of his own property in a common and useful manner and for his own convenience; or that the benefit to the public in the neighbourhood far exceeds the inconvenience to the plaintiff; or that the defendant has been granted the right to carry on the trade if it is not proved that the trade cannot be carried on without causing inconvenience; or that others in the vicinity do not complain.
In these cases the question of nuisance or no nuisance is pre-eminently one of degree, and no specific rules can be laid down. Circumstances and the locality must also be considered, for that which would be a nuisance in one district may be tolerated in another.
FUMES ETC., FROM COMMERCIAL OPERATIONS : Apart from fumes and smells arising from trades held to be offensive, the vitiation of the atmosphere may be held to be a nuisance and capable of being restrained by injunction when it arises from the burning of bricks' manure works, sewage works, glass works, cement works, chemical works, smoke from railway engine sheds, the staling of horses left standing in a street opposite business premises for an unreasonable time, gasworks, the smelting of ore, a blacksmith's shoeing -forger, smoke from factory engines, the discharge and deposit of manure at a railway siding or of night soil and other waste matter, the burning of mineral refuse, coke-ovens, stables, the deposit of house and street refuse, a cooking stove, the manufacture of fish guano and fish oil and the carrying on of a fried fish shop.
A hospital for infectious diseases is not necessarily a nuisance, nor is it an offensive business under public health legislation.
WHEN SMOKE AMOUNTS TO NUISANCE: Even when unaccompanied by noise or noxious vapours, and although not injurious to health, smoke may constitute an actionable nuisance or be the subject of indictment provided that the annoyance produced is such as materially to interfere with ordinary comfort. The fact that the smoke issues from premises in a manufacturing town does not affect the question of nuisance if it can be shown that the annoyance otherwise caused has been materially increased. Nuisances of this kind are now to a substantial extent regulated by statute."
10. In Galstaun v. Doonia Lal Seal, (1905) ILR 32 Cal 697, it was held that under the Municipal Law no private person can claim a right to foul an ordinary drain by discharging into it what it-was not intended to carry off. Where the defendant, the owner of a shellac factory, discharged into the Municipal drain, which was not constructed or intended for carrying off such stuff, refuse liquid of an offensive character, which interfered with the ordinary comfort of the plaintiff's occupation of property and caused him special injury, it was also held that the plaintiff was entitled to restrain him. Where, moreover' the defendant discharged the liquid into the drain knowing from the condition of the drain and the nature of the liquid that it could not be efficiently carried away, but must stagnate, decompose and create a nuisance, it was held, that the defendant must be responsible for the necessary consequences of his action and was not entitled to shift the responsibility on to the Municipality by contending that, if the latter would improve the drain, there would be no nuisance. It was also held that an injunction for the permanent stoppage of the nuisance was the only effectual remedy in the case. It was further held that substantial damages should be awarded against a defendant, who has persisted in a nuisance causing material injury to the plaintiff.
11. In Bay Bikini v. Perished Jiving, (1916) ILR 40 Boom 401: (AIR 1915 Boom 284), it was held that where the nuisance was of the kind to injure the health or seriously imperial the life of those complaining of it, the court would not hesitate to prevent it by way of injunction; but where the nuisance went no further than to diminish the comforts of human life, there would always be a question whether the court would proceed against him who causes that nuisance by injunction, or compensate the sufferer in damages.
12. In Sheikh Is mail Sahib v. Venkatanarasimhulu Iyah, (1936) 71 Mad U 400: (AIR 1936 Mad 905), it was held that it is not quite correct to say that an act will be actionable nuisance only if society does not tolerate it. No doubt the question is one of degree and in applying the law to any particular case, one must be guided to a great extent by commonsense and the ordinary standard of comfort prevailing in the neighbourhood. But this does not mean that it is entirely left to the neighbourhood to decide which is an actionable nuisance and which is not. It is the court which has to decide whether in view of the ordinary standard of comfort prevailing among ordinary people living in the locality that act is one which would amount to serious invasion of the right of a person to comfortable dwelling in his own house. Pandrang Raw. J. has further observed in this decision as follows : -
"As stated by Lord Halsbury in Colls v. Home and Colonial Stores Ltd., (1904) AC 179, 'A dweller in towns cannot expect to have as pure air, as free from smoke, smell and noise as if he lived in the country, and distant from other dwellings, and yet an excess smoke, smell and noise may give a cause of action, but in each of such cases it becomes a question of degree, and the question is in each case whether it amounts to a nuisance which will give a right of action."
That is question of fact to be decided by the court in each case. It is enough to refer to the latest case on the subject in Vanderapant v. Mayfair Hotel Company Limited (1930) 1 Ch D 138 at 165, where the law on the subject is stated thus :
"Apart from any right which may have been acquired against him by contract, grant or prescription, every person is entitled as against his neighbour to the comfortable and healthful enjoyment of the premises occupied by him, and in deciding whether in any particular case, his right has been interfered with and a nuisance thereby caused, 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 plain and sober and simple notions obtaining among English people." change in this statement of the law which is required to make it applicable to this country is to substitute the word 'Indian' for 'English'.
13. In Bhanwar Lal v. Dhanraj, , it was observed by Kan Singh, J. in paras 24 and 25, at page 216, as follows : -
"24. The term, 'nuisance' is incapable of an exact definition as observed in Winfield on Tort (VI Edition) at p. 536. But its concept is well understood. As the Author has observed it may be described as "unlawful interference with a persons's use or enjoyment of land, or of some right over, or in connection with it." It is a common law wrong having a long history. There must be interference with the use or enjoyment of land, or of some right over or in connection with it, causing damage to the plaintiff. The forms of this are innumerable. Noise, smells, pollution of air or water are the most usual instances, but there are many others. The two main heads are injury to property and interference with personal comfort. The escape of fumes, which kill vegetation and cattle, is an illustration of the first, and excessive tolling of church bells of the second. But whatever be the type, it does not follow that any harm constitutes a nuisance. The whole law on the subject really represents a balancing of conflicting interests. Some noise, some smell, some vibration, everyone must endure in any modern town, otherwise modern life there would be impossible. It is repeatedly said in nuisance cases that the rule is sic utere tuo ut alienum non laedas, but the maxim is not informative ' If it means that no man is ever allowed to use his property so as to injure another, it is palpably false. If it means that a man in using his property may injure his neighbour but not if he does so unlawfully, it is not worth stating. In fact, the law repeatedly recognises that a man may use his own so as. to injure another without committing a nuisance. It is only if such use is unreasonable that it becomes unlawful. The homely phrases, "Give and take", "live and let live" are much nearer the truth than the Latin Maxim. "A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be .interfered with."
25. Where the interference is with personal comfort, it is not necessary in order to establish a nuisance that any injury to health should be shown. It is enough that there is material interference with the physical comfort of human existence reckoned "not merely according to the elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people." The Author proceeds to say that one of the chief tests is reasonableness -"What is reasonable according to the ordinary usages of mankind in society or more correctly in a particular society" and it is important to distinguish this term in the law of nuisance from its use elsewhere in the law of tort, especially in negligence. Reasonable-ness plays an important part in determining whether or not there has been a nuisance. Just as England Courts deal with a case according to English people habits of living, in India we have to go by the habits of Indian People."
14. In Radhey Shiam v. Gur Prasad, , it was held that permanent injunction against defendant can be issued if it is proved that he runs a flour mill materially affecting physical comforts of the plaintiff. A person can claim injunction to stop nuisance if in a noisy locality there is substantial addition to the noise by introduction of some machine, instrument or performance at defendant's premises which materially affects the physical comforts of the occupants of the plaintiff's house. The appellate court below has found as a fact that the running of the impugned machines would seriously interfere with the physical comfort of the plaintiff and the members of his family according to the ordinary notions prevalent among reasonable men and women. This finding being based on evidence is not assailable in second appeal. The plaintiffs were, therefore, rightly held to .be entitled to the injunction claimed by them.
15. In Dhanna Lal v. Chittar Singh, , the principles relating to private nuisance have been succinctly enumerated as follows :
(1) Constant noise, if abnormal or unusual, can be an actionable nuisance if it interferes with one's physical comforts.
(2) The test of a nuisance causing personal discomfort is the actual local standard of comfort, and not an ideal or absolute standard.
(3) Generally, unusual or abnormal noise on defendants premises which disturbs sleep of the occupants of the plaintiffs house during night, or which is so loud during day time that due to it one cannot hear ordinary conversation in the plaintiff's house or which cannot allow the occupants of the plaintiffs house to carry on their ordinary work is deemed to be a noise which interferes with one's physical comforts.
(4) Even in a noisy locality, if there is substantial addition to the noise by introduction of some machine, instrument or performance at defendant's premises which materially affects the physical comforts of the occupants of the plaintiff's house, then also the noise will amount to actionable nuisance.
(5) If the noise amounts to an actionable nuisance, the defence that the defendant is making a reasonable use of his own property will be ineffectual. No use of one's property is reasonable if it causes substantial discomfort to other persons. "If a man creates a nuisance," said Kekewish J., in Attorney General V. Cole & Sons, (1901) 1 Ch 205 at p. 207. "He cannot say that he is acting reasonably. The two things are self-contradictory."
(6) If the defendant is found to be carrying on his business so as to cause a nuisance to his neighbours, he is not acting reasonably as regards them, and may be restrained by injunction, although he may be conducting his business in a proper manner according to rules framed in this behalf either by the Municipality or by the Government. The latter defence can be effective in a case of public nuisance, but not in that of a private nuisance.
(7) If an operation on the defendant's premises cannot by any care and skill be prevented from causing a private nuisance to the neighbours, it cannot be undertaken at all, except with the consent of those injured by it.
(8) The right to commit a private nuisance can in certain circumstances, be acquired either by prescription or by the authority of a statute."
16. In the decision in Ram Lal v. Mustafabad 0. & C. G. Factory, , the following principles relating to actionable
nuisance were laid down : -
(1) 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.
(2) As the precise degree of annoyance or inconvenience does not admit of exact calculation, each case depends largely on its. own facts.
(3) 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.
(4) 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.
(5) Actionable nuisance does not admit pf enumerations and any operation which causes injury to health, to property, to comfort, to business, or to public morals, would be deemed a nuisance.
(6) 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.
(7) Jarring and vibration caused to the plaintiff's premises, and, noises exceeding a certain norm and interfering with the actual physical comfort of persons of ordinary sensibilities, are deemed actionable nuisances. They have to be of such an intensity as unreasonably interfere 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 quantum of noise that, constitutes actionable nuisance and it is a matter which depends upon the circumstances of each case.
(8) Once a noise is considered to be a nuisance of the requisite degree, it is no defence to contend, that it was in consequence of a lawful business or arose from lawful amusements or from places of religious worship. It was held that the defendants were liable for the nuisance committed by them, which was of a degree and of such intensity as to make it actionable.
17. In Pakkle v. Aiyasami, , it was held that when
once it is established that the villagers have a common right over the water in the tank for purposes of using it for bathing and drinking purposes, any interference with that right would give them a cause of action, even though the interference is not in respect of a land belonging to the plaintiffs. The action of the defendants would amount to a nuisance. Pollution even of underground water is also actionable. The term pollution is wide enough to include any alteration of the natural quality of the water whereby it is rendered less fit for any purpose for which in its natural state it is capable of being used. Pollution is actionable without proof of actual damage. Any sensible alteration which renders the water less -fit for any purpose is an actionable wrong even though the plaintiff has not in fact been prevented from making tiny use of the water which he has hitherto made or now desires to make of it. There is no right or reasonable pollution.
Reasonable pollution.
The plaintiffs would be entitled to an injunction even though the land in respect of which they claimed injunction is not owned by them and the only right which they have is a common right over the property and it is no defence to the action of the plaintiffs that the people other than the defendants have already done something which has had the effect of making the water in the tank brackish.
It was held further that a person acquire a right to the water of a pond free from pollution, though he may have no proprietorship in it. The, fact of a person having established his right at law will not as a matter of course entitle him to an injunction, particularly where the injunction would not restore the plaintiff to the right he has established.
If by reason of the whole change in the condition of the surrounding country and neighbourhood the tank has become polluted to such an extent that it cannot be used for the purposes of the plaintiff, the granting of the injunction to restrain the wrong-doer, from continuing his works would do no good to the plaintiffs. If, notwithstanding a certain degree or pollution of the water, the plaintiffs can still use the water, although not so usefully, and then the defendant pollutes it to make it so much worse that they can use it in a less effective manner than they did before and if that were the state of the case, of course, they would have a right to an injunction.
18. In Datta Mal Chiranji Lal v. L. L. Prasad, , it was held that the running of the mills caused inconvenience and serious discomfort to the plaintiff and the residents of his house and its running amounted to a private nuisance which could not be permitted. It was further held that the defendant established an electric flour-mill in a premises in the bazar locality of Mussorie, which was adjacent to the plaintiff's house. The running of the mill produced a very unpleasant noise, which caused great inconvenience to the plaintiff and the members of his family and it generated vibrations on account of which the walls, floors, doors, windows, etc. in the plaintiffs house shook and rattled so that they could not have the necessary place and freedom from noise for following their normal avocations during the day and could not have a quiet rest at night. In the locality there was no other flour mill. It is true that the standard of comfort to which the plaintiff is entitled should be a reasonable standard and the degree of comfort should be such as might be expected by an average person. But the standard of comfortable living must vary necessarily from place to place. The immunity from discomfort or inconvenience must, therefore, be dependent considerably on the place where a person resides. In the instant case, which comes from Mussorie, it would not be unreasonable to accept the plaintiff 's contention that he is entitled to such freedom from loud and uncomfortable noise as might enable him to live peacefully in his house. It is not essential in a case like this to prove either that the property has been damaged or that the health of the inhabitants of the plaintiff's house has been impaired.
19. The word 'nuisance' is defined by the provision of S. .3 cl. (25) of the Tamil Nadu Public Health Act, 1939 (Tamil Nadu Act III of 1939) as follows
"25) "Nuisance" included any act, omission,. place or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or disturbance to rest or sleep or which is or may be dangerous to life or injurious to the health or property of the public or the people in general who dwell or occupy property in the vicinity, or persons who may have occasion to use any public right".
Sec. 41 of the Tamil Nadu Public Health Act, 1939 (Tamil Nadu Act III of 1939) reads as follows : -
"41. Without prejudice to the generality of the definition of the expression "nuisance" contained in Cl. (25) of S. 3, the following shall be deemed specifically to be nuisances for the purposes of this Chapter : -
(1) any premises in such a state as to be prejudicial to health or a nuisance;
(2) any pond, pool ditch, gutter, watercourse, water-trough, latrine, cess-pool, drain or ash-pit which is so foul or in such a state as to be prejudicial to health or a nuisance;
(3) any animal kept in such a place or manner as to be prejudicial to health or a nuisance;
(4) any accumulation or deposit of refuse or other matter which is prejudicial to health or a nuisance;
(5) any factory not being a factory governed by the provisions of the Factories Act, 1934 workshop or work-place, which is not provided with sufficient means of ventilation, or in which sufficient ventilation is not maintained, or which is not kept clean or not kept free from noxious effluvia, or which is so over-crowded while work is carried on as to be prejudicial to the health of those employed therein;
(6) any fireplace or furnace which does not as far as practicable consume the smoke arising from the combustible used therein, and which is used for, working engines( by steam, or in any mill, factory, dye-house, brewery, bake-house or gas work, or in any manufacturing or trade process whatsoever;
(7) any chimney sending forth smoke in such quantity as to be a nuisance; and
(8) any noise, vibration, dust, cinders, irritating smell or offensive odor produced by a factory, workshop or workplace which is a nuisance to the neighborhood".
20. The word "nuisance" is defined by the Tamil Nadu District Municipalities Act, 1920 (Tamil Nadu Act V of 1920) as follows : -
"Nuisance" includes any act, omission, place or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or which is or may be dangerous to life or injurious to health or property".
21. In the instant case before us, we are concerned with the tort that may be committed with respect to brick-burning. In this regard, the English law on the subject is very enlightening. The case of Rylands v. Fletcher, (1864) LR I Ex. 265 is an instance of injury to property due to a nuisance, viz., flooding of mines by the escape of water from a reservoir.
22. In Balfour v. Barty King (1957) 1 Q. B. 496 (CA), the defendants were the owners and occupiers of a dwelling-house which was contiguous to that of the plaintiff. On Jan. 29, 1954, the second defendant employed an independent contractor to thaw frozen pipes in her loft, which contained a large quantity of combustible material. The independent contractor applied a blow lamp to the pipes which were, in parts, larged with felt; the felt caught fire and the fire spread rapidly throughout the left and to the plaintiffs house. The court found that the fire was caused by the negligence of the independent contractor because, although the use of a blow lamp was one of the normal methods of thawing pipes, it was negligent to use one in proximity to inflammable material. It was held that a householder was liable for an escape of fire from his premises to those of his neighbour where the fire was caused by the negligence of an independent contractor when the householder had invited to his house to carry out work there, and, therefore, the defendants were liable in damages to the plaintiff.
22A. In Walter v. Selfe, (1851), 20 U Ch 433 it is held as follows:--
"Mr. Walter, one of the plaintiffs in this cause, was, and had been for some years previously to 1850, the owner of a house, with a garden and pleasure-ground attached to it, at Surbiton, in Surrey.
In 1850, the defendant purchased a piece of land, about an acre in extent, situated about 100 yards distant from the plaintiff's house, and commenced the manufacture of bricks from the clay taken from this land by burning.
This was a motion made by Mr. Walter and the tenant of the house and grounds under Mr. Walter, for the purpose of obtaining injunction to restrain the defendant from continuing to burn brick on the land". In this decision K. Bruce, V. C., observed at page 436 as follows : -
"The paucity of authority on the subject of brick burning is a circumstance unfavourable to the defendant, but I am not aware of any authority for saying that it cannot be a private nuisance. I do not consider the case of The Duke of Grafton v. Hilliard (1736-64 ER 853) noticed in The Attorney General v. Cleaver (1811-34 ER 297), by Lord Eldon, and more fully in Mr. Blunt's edition of Ambler, to have so decided. Lord Hardwicke's order of the 11th of June 1736, which I have read, seems to have proceeded upon the special circumstances of that case, and does not, I think, govern the present, nor affect it in the defendant's favour seeing that he and the plaintiffs concur in desiring not to go before a jury or to be referred to a court of law in any way. The question, it appears, was decided recently in an arbitration by a distinguished member of this bar, whose accuracy and learning are universally acknowledged. He determined, between two neighbouring proprietors, that brick burning, the clay being the clay on the land of one, was a private nuisance to the other. It was considered by Vice Chancellor Shadwell, before whom and Lord Lyndhurst it had been previously, to be so; and two judges now on the Bench, whose opinions I estimate very highly, have informed me that they consider a private nuisance to be committed by a man who burns bricks on his own land, made of his own clay, if he does it so near to the house of his neighbour as to cause him substantial inconvenience and material discomfort. In the absence of special circumstances, disabling the occupier from complaining, it appears to me, in the present instance, that the defendant, as well as the plaintiffs, declining to go before a jury, and, asking the court of Chancery to decide between them, without assistance in any shape from the court of law, I ought to grant an injunction".
23. In Bamford v. Turnley, (1861-1873) All Er Rep 706, it was held that the defendant created a brick-clamp upon his land which was near the plaintiff's premises. He burned a large quantity of bricks there and caused fumes to arise there from, which resulted in a sensible diminution of the comfortable enjoyment of the plaintiff's habitation. It was proved that the erection and use of the clamp by the defendant was temporary and for the sole purpose of making bricks on his land from the clay found there with a view to the erection of houses, and also that the clamp was placed upon that part of defendant's land which was most distant from the plaintiff's house so as to create no further annoyance than necessary. The trial Judge directed the jury that, if they should be of opinion that the place where the bricks were burnt was proper and convenient and the burning of the bricks under the circumstances a reasonable use by the defendant of his land, the defendant was entitled to a verdict, notwithstanding that they were also of opinion that the burning interfered with the plaintiff's comfort. It was also held that the true doctrine was that whenever, taking all the circumstances into consideration, including the nature and extent of the plaintiff's enjoyment before the acts complained of, the annoyance caused by those acts was sufficiently great to amount to a nuisance according to the ordinary rule of law an action would lie wherever the locality of the nuisance might be, and, therefore, the direction of the learned Judge was wrong.
24. In Beardmore v. Tredwell, (1862) 31 U Ch 892, it was held that where the comfort and enjoyment of a mansion were injured, and the trees planted and standing for ornament and to exclude the view of unsightly objects from the mansion were in some cases destroyed, and in many cases injured, by brick-burning, the Court granted an injunction to restrain such brick-burning as, although the defendant carried on the brick-burning complained of in order to execute a contract for the construction of the fortifications on Portsdown Hill, near Portsmouth, it appeared that the brick-burning might have been carried on elsewhere on the land in the defendant's occupation without any inconvenience to the plaintiff, or without that degree of injury to the plaintiff which would entitle her to complain.
25. In Cavey v. Ledbitter, (1863) 13 CB NS 470, it was held as follows : -
"It is no answer to an action for a nuisance in burning bricks so near to the plaintiffs dwelling house as to cause substantial annoyance and discomfort to himself and his family, that the act complained of was done at a convenient time and place.
Therefore, in such A case, the refusal of the judge to leave it to the jury to say whether the bricks had been burned in a convenient place for the purpose, is no misdirection. The Judge having directed the jury to find for the plaintiff, if there was annoyance to a substantial degree it was held, that the said direction is in accordance with the decision of the Exchequer Chamber in Bamford v. Turnley, (1861-1873) 31 LJ QB 286, and it was a proper direction".
26. In the instant case it admits of no doubt that in the A Schedule Property belonging to the plaintiff, he has made necessary arrangement for locating a Ginning factory much earlier than the defendants' contemplated erection of a brickkiln in the B Schedule Property belonging to them. On the side of -the plaintiff, the approved plans by the Factory Inspector, the plaintiff's application to the Assistant Director of Industries and Commerce, the permission accorded by the Panchayat Union in favour of the plaintiff, the letter from the Assistant Director of Industries and Commerce to the plaintiff are all marked as Exts. A-1 to A-3 and A-6 respectively and they are of the years 1973 and 1974, whereas the approved plan for the brickkiln and the licence issued to the first defendant by the Panchayat Union, which are marked as Exts. B-2 and B-4 respectively are of the year 1977. In this. case, we are able to find from the materials on record that even in the month of August, 1975, the plaintiff has intimated the Panchayat Union of Rajapalayam, his objection to the proposed erection of the brickkiln by the defendants near his Ginning factory and that in pursuance of the said letter by the plaintiff, the panchayat Union, Rajapalayam had addressed the defendants a letter, the copy of which is Ex. A10 directing them to obtain necessary permission from the Panchayat Union for locating the brickkiln in some other place and threatening legal action in case of violation. Then again, on 12-10-1975, the Panchayat Union has addressed a letter to the defendants that they should not start any brickkiln in S. No. 149 and 149/2, since the plaintiff had objected to the erection of brickkiln there, as. it would- endanger his Ginning factory in S. Nos. 150/1 and 160/1 and that they should obtain necessary "no objection certificate" from the District Health Officer and submit the same to the Panchayat Union and then, only the granting of licence to them would be considered. Of course, the defendants had submitted a plan duly approved by the District Health Officer, Ramanathapuram at Madurai as evidenced by Ex. B-2 and on that basis, the Panchayat Union by its letter Ex. B-3 on 12-4-1977 granted permission to the defendants to locate the brickkiln in S. Nos. 149/1 & 2 and also issued the licence Ex. B-4 dated 15-4-1977 for the brickkiln for 1977-78.
27. It is contended on behalf of the defendants/appellants herein that it is not open to the plaintiff to raise any voice of protest against the erection of the brickkiln in the B Schedule property, since the permission has been granted by the competent authority. It is relevant to note that the accord of the permission by the Municipality to the defendants by the letter Ex. B-3 cannot, prevent the plaintiff to put forward his defence that the erection of the brickkiln in the adjoining property by the defendants/appellants herein, involves the hazard of fire to the Ginning factory and the defendants had not even adhered to the approved plan for the erection of the brickkiln. Ex. A-12 is the letter addressed by the District Fire Officer, Tirunelveli to the Commissioner, Panchayat Union, Rajapalayam. on 16-12-1975 and it refers to the petition dt. 1-10-1975 by the plaintiff. It is seen from Ex. A-12 that the Additional District: Fire Officer inspected the locality, where the Ginning Factory was to be located on 24-11-1975, and submitted a report that the fumes from the brickkiln will spoil the quality of the cotton in the Ginning factory and that during the windy season, sparks from the brickkiln are likely to cause fire outbreak in the cotton godown and therefore the adjacent property .is not fit for locating a brickkiln.
28. In Ex. A-12 the District Fire Officer has intimated the Commissioner, Panchayat Union that in view of the report of the Additional District Fire Officer, the adjoining property is not fit for locating a brickkiln and so, he need not grant any permission for locating a brickkiln in that place. In Ex. B-3 letter dt. 12-4-1977 written by the Panchayat Union, Rajapalayam to the defendants, there is no reference to the aforesaid letter from the Fire Officer, Tirunelveli or any indication of consideration of the report of the Fire Officer. Therefore, it is clear that while granting permission to the defendants for locating the brickkiln, the aforesaid report of the Fire Officer had not been considered at all by the Panchayat Union Commissioner.
29. The letter Ex. A-12 written by the District Fire Officer, Tirunelveli, addressed to the defendants clearly demonstrates that the apprehension of danger to the Ginning factory by the erection of the brickkiln in the adjoining property expressed by the plaintiff is well founded and there is no oblique motive on the part of the plaintiff in raising the objection. In the instant case, before us, the Advocate Commissioner appointed by the Court had inspected the locality and submitted the report Ex. C- I with a plan Ex. C-2. He has mentioned in his report that ACBCD is the plaintiff's factory and godown shed, while CDEF is the vacant land of the plaintiff, that there is a compound wall measuring 10' X 8" along CD, that the length of the vacant site .from the compound wall is 112 feet, that south of EF is the land of the defendants and a brickkiln is situated therein at a distance of 21 feet south of CD compound wall and that the brickkiln is measuring 4' 9" in height. When we look into Ex. B-2 the approved plan submitted by the defendants, it is seen that for a radius of 250' which is equivalent to 76.20 metres, there is no obstruction for the brickkiln and it is also shown therein that the Ginning Factory in S. Nos. 150/1 and 168/1 belonging to the plaintiff is situated at a distance of 190 metres on the north east direction. In the light of the Commissioner's report, it is evident that the details furnished in the approved plan do not reflect the real situation of the surroundings and the fact remains that the Panchayat Union had granted permission to the defendants only on the data furnished by the aforesaid approved plan Ex. B-2. So it is clear that the defence cannot certainly depend upon the fact of accord of permission by the Panchayat Union to the defendants, since in the face of the Commissioner's report it is evident that the location of the brickkiln in the defendants' property is not in accordance with, the approved plan submitted by him, to, the municipality. So both the Courts below have correctly held on the evidence available on record that the brickkiln of the defendants will certainly amount to an actionable nuisance and that the plaintiff, who has made elaborate preparations to start the Ginning factory investing large funds, has got every right to resist the erection of the brickkiln by the defendants in the adjoining land. Of course, it is seen from the materials on record that there are certain brickkilns owned by the other persons in the neighbourhood. But, according to the plaintiff those persons had promised to remove the brickkilns as soon as he started Ginning factory. It is not for the defence to say that because there are other brickkilns in the neighbourhood, they are also entitled to have a brickkiln near the plaintiffs factory. It is always open to the plaintiff to take appropriate action against the persons having the other brickkilns also for abatement of nuisance to safeguard his ginning factory. Thus, in the instant case, we find that the erection of a brickkiln by defendants in the adjoining land will amount to an actionable nuisance and the plaintiff is entitled to seek abatement of such nuisance by getting the relief of injunction as prayed for. Hence, the second appeal is dismissed. But under the circumstances, there is no order as to costs.
30. Appeal dismissed.
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