from enjoyment of right of property. Nuisance is such a
tort that the injury caused by it cannot be specifically
repaired and the extent of injury cannot be ascertained or
estimated with accuracy. Such nuisance may be of many
degrees and in many cases like the present the nuisance
may not endanger the life or health and it may only cause
annoyance, discomfort. It is settled law that in view of the
rights of the owner of the property whenever there is
discomfort such nuisance can become actionable.
However, the plaintiff is required to show that discomfort
is of such degree that it would affect not only the plaintiff
but any person irrespective of age, health or position in
life. Thus, if the plaintiff is able to prove that his premises
cannot be comfortably occupied due to nuisance created
by the defendant, the plaintiff can get relief of injunction.
The law discussed in the cases cited supra
shows that the defence that the defendant is doing his
business in proper manner, in accordance with the
conditions of licence, cannot prevent the Court from
granting relief of injunction if the plaintiff is able to prove
that the act of the defendant amounts to actionable
wrong, nuisance. Circumstance that the defendant is not
complying with the conditions laid down in the licence
can be used as additional circumstance against the
defendant. When there is non-compliance of the
conditions of licence and there is also actionable nuisance
it is up to the Court to ascertain whether the nuisance
can be stopped by giving some directions to the defendant
like to take corrective measures, to comply with the
conditions of licence.
15) Whether a private nuisance of aforesaid nature
is actionable or not can be judged by ordinary standards
of persons residing in the neighbourhood. It is up to the
Court to decide as to what type of nuisance can be
tolerated in a particular case. If the noise or vibration of
the machinery affects physical comfort of the plaintiff and
his family members, the Court can grant relief provided
that ordinary standards of person’s life in such locality
are satisfied.
16) In view of the aforesaid position of law the
points for considering the matter like the present one can
be as follows :-
(i) whether use of machinery for saw mill of the horse power
(10 HP) used by the defendant is creating nuisance of noise
and vibrations ?
(ii) whether the nuisance is actionable ?
(iii) whether use is in contravention of conditions of licence
and whether by taking some corrective measures nuisance
can be stopped and the defendant can be allowed to run the
business ?
17) When there is contravention of conditions of
licence it is also upto the authority to take steps.
Surprisingly with regard to the aforesaid admission of the
suggestion that there is no pacca construction, no action
is taken by the authority. In such case also Court can step
in and take action.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 223 of 2014
Ismail Musabhai Memon
V
Abdul Aziz Anvar Inamdar,
CORAM: T.V. NALAWADE, J.
Dated : 30th September 2015.
Citation: 2016(6)ALLMR 104
1) The appeal is filed against the judgment and
decree of Regular Civil Suit No.13 of 2004 which was
pending in the Court of the Civil Judge, Senior Division,
Nandurbar and also against the judgment and order of
Regular Civil Appeal No.13 of 2007 which was pending in
the Court of the District Judge-1 Nandurbar. Relief of
injunction is granted against the appellant to prevent the
nuisance by the trial Court and the decision is confirmed
by the first appellate Court. Both sides are heard.
2) The plaintiff and the co-sharer are owners of
property bearing CTS No.2407/1-A situated at Nandurbar.
It is contended by the plaintiff that the defendant is in
possession of property bearing CTS No.2407/1-B situated
adjacent to the property of the plaintiff and the defendant
is illegally running a saw mill on property CTS No. 2407/1-
B. It is the case of the plaintiff that the defendant is not
having necessary licence to run the saw mill. It is
contended that due to machinery of saw mill there is noise
pollution and the machinery is causing vibrations also
and it is also nuisance to the plaintiff. It is contended that
the defendant is keeping his wood on the property of the
plaintiff and it is also creating nuisance. It is the case of
the plaintiff that he is residing in the building constructed
on property CTS No.2407/1-A and due to vibrations
caused by the machinery of the defendant danger is
created to the building of the plaintiff. It is contended that
due to aforesaid vibrations and noise the plaintiff is
suffering ill-health and he is not in a position to tolerate
this nuisance as he has become old.
3) It is the case of the plaintiff that both
properties bearing CTS Nos.2407/1-A and 2407/1-B are
situated in residential zone of the local body and the
defendant is running the saw mill illegally there. It is
contended that the defendant has no right to run saw mill
there and for nuisance also preventive relief needs to be
given against the defendant to stop the nuisance.
4) The defendant contested the suit by filing
written statement. He has contended that he is doing the
business of saw mill on the property CTS No.2407/1-B
since 1992 and right from beginning he is holding
necessary licence of competent authority to do this
business. It is contended that his machinery is not
creating noise pollution and also the vibrations and no
actionable wrong, nuisance as such is there. It is
contended that due to delay caused in taking action, due
to latches and acquiescence also the plaintiff is not
entitled to get any relief.
5) On the basis of the aforesaid pleadings issues
were framed. Both the sides gave evidence. Both the
Courts below have held that it is a case of actionable
nuisance. The Courts below have held that defendant has
not obtained licence to run the saw mill on property CTS
No.2407/1-B but the machinery is kept there and so he is
running the business illegally.
6) Son of the plaintiff, residing in the building
constructed on CTS No.2407/1-A, has given evidence on
nuisance. His evidence is consistent with the aforesaid
pleadings. Suggestions are given to the son of the plaintiff
by the defendant that the plaintiff must have become
accustomed with the noise now. It is suggested that as the
plaintiff was working in a Railway workshop, he cannot
say that noise is causing annoyance to him. In the
evidence of the son of the plaintiff it is brought on record
that there are many houses surrounding the saw mill on
property CTS No.2407/1-B. It is suggested that in the
vicinity there are saw mills and they are also causing
nuisance but such suggestions are no admitted. The
suggestions and the evidence of the defendant show that
it is not disputed that there is only one saw mill and that
is of the defendant in that locality. Son of the plaintiff has
specifically stated in the cross examination that his
building is situated at a distance of 10 ft from the place
where the machinery is being used by the defendant.
7) Son of the plaintiff has admitted in the cross
examination that in the other residential localities like Bail
Bazar there are two saw mills. However, this circumstance
cannot be considered in a case like present one if the
plaintiff is able to prove the case of actionable nuisance.
8) The defendant has examined himself to give
evidence in rebuttal and he has examined two witnesses.
His evidence shows that, he owns some space from both
CTS Nos.2407/1-A and 2407/1-B. He has given evidence
that his saw mill is situated on both these properties. He
has given evidence that he had obtained licence to run the
business on property CTS No.2407/1-A.
9) The evidence of the defendant shows that in the
year 2005-2006 there was no licence with the defendant
to run the business. Reasons for the same are being
discussed later on. The evidence on the record shows that
the machinery of the defendant was being run on 10 HP
motor. The defendant has admitted that there is no pacca
construction to cover the area of machinery. Conditions of
the licence show that the machinery needs to be inside of
the pacca construction. It appears that there is only tinshed
of the defendant and it is also not in good condition.
Photographs in that regard were produced in the trial
Court. The evidence of the defendant shows that he does
not know that he was expected to keep the machinery in
pacca construction. It is surprising that the concerned
department has not taken any action though the
machinery is not installed in pacca construction. The
evidence of the defendant and his witness Shaikh Muktar
shows that there is only saw mill which is of the
defendant in that locality. The evidence also shows that
they admitted that on all the sides of the saw mill there
are houses which are occupied.
10) Madhav Namdev Gavali, Deputy Director of
Social Forestry is examined by the defendant. His
evidence shows that right from 1993 the business was
being done by the defendant and requisite licence was
issued by the Forests Department for the business. His
evidence, however, shows that due to some illegal activity,
action was taken by Forests Department and the saw mill
was sealed and closed. The evidence shows that licence
was issued in respect of property CTS No.2407/1 and
not specifically in respect of CTS No.2407/1-A or 1-B.
11) The property card of CTS No.2407/1-A is on
record and it shows that the plaintiff is shown as one of
the owners of this property. It appears that no record
whatsoever was produced by the defendant in the trial
Court to show that he had acquired ownership over
portion of CTS No.2407/1. In second appeal, civil
application is filed by the defendant and he has sought
permission to produce some relevant record. In view of
nature of the dispute this Court is considering that record.
In 1990 the owner of CTS No.2407/1 had given no
objection certificate to the concerned authority for issuing
licence of saw mill in favour of the defendant. The first
licence was for the period from 1-1-1993 to 31-12-1993
and it was in respect of CTS No.2407/1. The number of
this licence was 30/93 and it was for 42" vertical bend. In
the year 1997, licence No.47/97 was issued for using the
machinery and name of the saw mill was shown as "Apni
Saw Mill, Nandurbar". In the first licence bearing
No.47/97 property on which it was to be used was not
described but subsequently in the year 2001 the property
was described as 2407/1. Licence No.59/2004 was then
issued and it was in existence till the year 2004. It
appears that from that year the dispute started. Further,
the Forests Department also took action against the
defendant like starting confiscation proceeding in respect
of the forest products in which the mill was sealed and
criminal action was also taken. The record shows that the
Sessions Court set aside the order of confiscation and the
defendant got acquittal also.
12) In the second appeal, the record like copy of
sale deed is produced to show that some portion of
property CTS Nos.2407/1-A and 2407/1-B was purchased
by defendant from its owner. Thus there is record of
ownership with the defendant in respect of portion of
CTS No.2407/1. Thus not much can be made out due to
the discrepancy like on the licence property number was
mentioned as 2407/1. Further, in the year 1990 owner of
this portion had given no objection in favour of the
defendant and on that basis licence was issued to the
defendant in the year 1993. This Court has no hesitation
to hold that the discrepancy in mentioning the property
number in the licence cannot be used against the
defendant. Thus it needs to be ascertained as to whether
the activity of the defendant amounts to actionable
nuisance.
13) The nuisance of noise and vibrations detracts
from enjoyment of right of property. Nuisance is such a
tort that the injury caused by it cannot be specifically
repaired and the extent of injury cannot be ascertained or
estimated with accuracy. Such nuisance may be of many
degrees and in many cases like the present the nuisance
may not endanger the life or health and it may only cause
annoyance, discomfort. It is settled law that in view of the
rights of the owner of the property whenever there is
discomfort such nuisance can become actionable.
However, the plaintiff is required to show that discomfort
is of such degree that it would affect not only the plaintiff
but any person irrespective of age, health or position in
life. Thus, if the plaintiff is able to prove that his premises
cannot be comfortably occupied due to nuisance created
by the defendant, the plaintiff can get relief of injunction.
Reliance is placed on reported cases :
(i) ILR 8 Bombay 35 (Land Mortgage Bank of India v
Ahmedbhoy Habibbhoy)
(ii) 8 BLR 89 (Hari v. Vithal)
(iii) ILR 40 Bombay 401 (Bai Bhicaiji v Perojshaw)
14) The law discussed in the cases cited supra
shows that the defence that the defendant is doing his
business in proper manner, in accordance with the
conditions of licence, cannot prevent the Court from
granting relief of injunction if the plaintiff is able to prove
that the act of the defendant amounts to actionable
wrong, nuisance. Circumstance that the defendant is not
complying with the conditions laid down in the licence
can be used as additional circumstance against the
defendant. When there is non-compliance of the
conditions of licence and there is also actionable nuisance
it is up to the Court to ascertain whether the nuisance
can be stopped by giving some directions to the defendant
like to take corrective measures, to comply with the
conditions of licence.
15) Whether a private nuisance of aforesaid nature
is actionable or not can be judged by ordinary standards
of persons residing in the neighbourhood. It is up to the
Court to decide as to what type of nuisance can be
tolerated in a particular case. If the noise or vibration of
the machinery affects physical comfort of the plaintiff and
his family members, the Court can grant relief provided
that ordinary standards of person’s life in such locality
are satisfied.
16) In view of the aforesaid position of law the
points for considering the matter like the present one can
be as follows :-
(i) whether use of machinery for saw mill of the horse power
(10 HP) used by the defendant is creating nuisance of noise
and vibrations ?
(ii) whether the nuisance is actionable ?
(iii) whether use is in contravention of conditions of licence
and whether by taking some corrective measures nuisance
can be stopped and the defendant can be allowed to run the
business ?
17) When there is contravention of conditions of
licence it is also upto the authority to take steps.
Surprisingly with regard to the aforesaid admission of the
suggestion that there is no pacca construction, no action
is taken by the authority. In such case also Court can step
in and take action. All the aforesaid questions are
questions of fact. In second appeal in view of its scope this
Court is not expected to interfere in the findings given by
the Courts below which are on question of facts. There is
evidence of one witness of the same locality in support of
the case of the plaintiff. Further, injunction is a
discretionary relief as provided in section 38 of the
Specific Relief Act and so the appellate Court much less
this Court in second appeal is not expected to interfere in
the order made by the Courts below. As the Courts below
have given findings which are concurrent and they are
also on the discretionary power, this Court holds that it is
not possible to formulate substantial questions of law.
18) In the result, the appeal stands dismissed.
Sd/-
(T.V. NALAWADE, J. )
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