GIRDHARI LAL Vs. BHANOO VORA

JUDGEMENT

(1.) Plaintiff had let out ground floor of his house to Deft. for running Printing Press. He himself was living on 1st floor. Deft. was working Press beyond prescribed hours and claiming this as a nuisance, landlord complained to MCD and the Police. When they showed no response, he filed a suit for injunction which was dismissed by trial Court and 1st App. Ct. He then appealed to H. Ct. It was held.] :

(2.) The important question of law arising for decision in this second appeal is where an activity is prohibited by a statute or a licence under the statute or where the activity can be carried out only on satisfaction of certain conditions laid down by a statute, what is the standard of proof necessary when nuisance is caused because of the breach of the statutory conditions ? Normally in case of private nuisance actual damage is required to be proved. This is, however, only a rule of caution or prudence. The remedy by way of injunction, being an equitable remedy, can be granted by the Court not only for recurrence but even for the occurrence of nuisance for the first time. In that case substantial apprehended danger or any irrepareable damage will entitle the plaintiff to a decree. But where a person causes nuisance in breach of his statutory obligation he also commits public wrong and subjects itself to a statutory penalty. Where the statute prohibits certain activities or prescribes the activities to be carried on only during the particular period or hours, there is a statutory assumption that the breach amounts to nuisance and danger to public health and well being ? It would be more so in respect of the parties staying in the same house where the activity resulting in nuisance is being carried out. The two lower courts have erred in not addressing themselves to this important question of law. They have also failed to consider whether there was any responsible apprehension of damage or whether the damage would be substantial or irreparable.

(3.) They have only recorded a finding that no actual damage or nuisance was proved by plaintiff. Apart from this there are several other patent errors of law in the impugned judgment. In the previous suit filed by the landlord there was a compromise and in the compromise the right of the respondent to run the press was accepted. This fact was not mentioned in the plaint. The Court would have held that the right of the respondent to run the press cannot be agitated by the plaintiff. But the appellate court held that since the timings for the running of the press were not mentioned in the compromise, the plaintiff had agreed to the running of the press at any time the respondent wanted. The court in fact held that the plaintiff is estopped from raising any such plea. This was totally erroneous reading of the compromise. The lower court failed to appreciate that the timings for running the press were fixed under the statutory licence and did not depend on the wishes of the parties. The lower court also erred in holding that the respodent's press is running on the electricity and, therefore, it does not cause any noise as may amount to nuisance or disturb the sleep of the other neighbours. The learned Judge further held that the plaintiff shall tolerate little inconvenience and discomfort to life, as particularly in big cities like Delhi, were so many industries and other machines are being run one cannot avoid noise. The nuisance or disturbance in running the press is not caused because of the particular type of fuel that is used. The very operation of the press, which includes repeated movements of machines causes considerable noise and disturbances. If the inconvenience and discomfort is caused to the neighbourhood the Municipal authorities are entitled to cancel the licence because that is a breach of the terms of the licence. The law permits the activities only if they are not hazardous to public health and well being. The lower court also denied the relief on the ground that it would involve constant supervision. This general principle also has to be applied in the context of the statutory requirements under which the licence is granted. If the nuisance is caused it will be the duty of the Municipal authorities to prosecute and to stop the nuisance. The assumption in these statutory provisions is that it is possible and practicable to supervise the activities of the factories and to stop nuisance. It is unfortunate as I find in the present, case, that neither the police nor the municipal authorities were sufficiently co-operative. It does not mean that a private citizen cannot claim any effective remedy from the court. On one occasion, when the police were called, they found that the press was work ing before 7 A.M. but the respondent was not personally present. Her servants were present. The licence prohibits such activities even if they are by servants. In law, they are agents of the respondent. The fact that petitioner is an old man who has also suffered a heart attack is an equitable consideration which a court cannot ignore.