MOHAMMED Vs. HEALTH OFFICER CALICUT CORPORATION

JUDGEMENT

(1.) THE accused in S. T. Case 554/65 on the file of the honorary First Class Magistrate's Court, Kozhikode is the revision petitioner. He was prosecuted under S. 44 read with S. 134 of the madras Public Health Act, 1939 (shortly stated the Act) for causing nuisance by producing noise by cutting and hammering tin sheets for bis business of making tin boxes. THE prosecution was launched by pw. 1 the Health Inspector of Calicut corporation. THE accused is engaged in the business of making tin boxes in shop no. 3/567-F of the Calicut Corporation. PW-2, a lady aged 66 is residing in the adjoining building and she complained to the Health Inspector that her sleep and rest were disturbed by the noise. Pw-1 inspected the accused's shop and found that the noise produced in the course of his tin business was really a nuisance for the neighbours and he reported the matter to the Health Officer. THE accused was thereupon served with a notice requesting to abate the nuisance. THE accused sent his reply denying the charge. Accordingly the prosecution was initiated. THE learned Magistrate convicted the accused of the offence charged and sentenced him to pay a fine of Rs. 30/ -. Revision to the district Magistrate of Kozhikode has been unsuccessful.

(2.) THE question for consideration is whether the prosecution has made out a case under the Act against the accused. 'nuisance' is referred to in S. 3 (25) of the Act in the following terms: "'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 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. " THE Indian Penal Code defines'public nuisance' under s. 268 as follows: "a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right".

(3.) IN all these cases, one other question to be considered is whether the inconvenience or discomfort complained of, is real or only fanciful. It must be inconvenience according to the plain, sobre, and simple notions of the common man. IN other words, the discomfort should be such as an ordinary or average person in the locality and environment, would not put up with or tolerate. That is to say, it must be such as to inconvenience an ordinary or average person, not a fastidious, weak, nervous or sick person. Lex nonfavet delicatorum votis is the maxim, which means, "the law makes no allowance for the susceptibilities of the hyper-sensitive". IN the case before us the complainant, pw. 2, on her own admission is a hypersensitive type of person. She is aged 66 and is suffering from high blood pressure. She herself swears, "it is the legal right of every person to make such use of his own property as he may think fit, provided that in so doing he does not cause real injury to others or offend against the law, even though he may thereby hurt the susceptibilities of others. " IN that case, the complaint was made by a Jain against the slaughter of kine by Mohamaddans openly in the Village of Behta Goshain. The learned judges throwing out the complaint observed: "the right of Muhammadans to slaughter kine is one to which they are legally entitled irrespective of custom, and it is only when they abuse the right that its exercise can be interfered with. " The learned judges have further observed: "we may also say that it is in the highest degree desirable that the members of the different religious persuasions who are to be found in this country, should, in the observance of their religious ceremonies as well as in the exercise of their lawful rights, show respect for the feelings and sentiments of those belonging to different persuasions, and avoid anything cal culated to irritate the religious susceptibilities of any class of the community. But when a question in which the ordinary rights of property are involved comes before us, we must, before we can allow those rights to be infringed, endeavour to find the existence of some principle or rule of law justifying a ruling that the wishes or susceptibilities of individuals can be allowed to override such rights. " On the above analogy it should be held that the action taken on the complaint of pw. 2, the only person affected by the so-called nuisance cannot be sustained since the complaint proceeds from her own abnormal or hyper sensitiveness. We are to be guided in a case like this by the standard of the ordinary or average person and not of a weak, nervous or sick person. The place in question is within the corporation and is a fairly crowded locality. It is significant that none of the other neighbours has come forward complaining of the nuisance. According to pw. 1 herself, the factory is not worked after 8 p. m. Such being the case, I fail to see any good faith in pw. 2's complaint that her sleep is disturbed by the noise. Viewed from any standpoint, therefore, the action must fail.