BHAGWAUDAS KEJRIWAL Vs. RAMA DEVI SURRAF

JUDGEMENT

(1.) This is defendant's appeal from a reversing judgment of the third Additional District Judge, Dumka (Santhal Parganas) dated 5th July. 1976, in Title Appeal No. 69 of 1969. The only question to be determined in this case is whether the appellants are liable to an action on the score of nuisance by noise and vibration caused by the operation of their oil and Dal mill on plot no. 345 in Sahibganj which they opened in 1964 with the aid of three electric motors of 15, 20 and 35 horse power in between the two houses of the plaintiffs. The plaintiffs alleged that running of the mill is a source of constant discomfort and annoyance to them and others. It was also said that the vibration had caused cracks in the walls of their house. In the suit the plaintiffs prayed for a permanent injunction restraining the defendants from operating the mill. The defendants contended that there were a number of other mills and factories in the area near about the house of the plaintiffs and the plaintiffs being accustomed to live in the mill area for long, there was no question of any inconvenience and hardship to the plaintiffs or to any body else. It was further said that even the husband of plaintiff no. I had obtained a licence in the year 1953 to run a mill to the same house in which plaintiffs were residing and the licence for which was renewed upto 1959. It was also alleged that the Government and the Municipal authorities had granted licence to the defendants to run the mill and that the present suit had been filed due to enmity because the defendants had got the brother of the husband of plaintiff no. 1 evicted from the house in which the mill was installed by the defendants.

(2.) From the above it seems that the plaintiffs complain of nuisance by noise and vibration and it is of two characters : (i) one of substantial interference with their comfort and convenience in using their house ; and (ii) of physical injury to the premises occupied by them. It is not in doubt that some discomfort and inconvenience were caused to the plaintiffs and will continue to be caused to the occupier of their buildings by the working of the mill. The question is whether the noise complained of is of such a character and such a volume as to seriously interfere with the comfort of the plaintiffs according to the ordinary notions prevalent among the people of the locality. If the answer is 'yes' an injunction will be granted. Local conditions have to be taken into consideration. It has to be seen how other people live in that locality. It is well settled that the standard of comfortable living which is to be taken as the test of nuisance is not a single universal standard for all times and places, but a variable standard differing in different localities. As put by Salmond in his famous book "Law of Torts" (Eleventh Edition) at page 253 : "The question in every case is not whether the individual plaintiff suffers what he regards as substantial discomfort or inconvenience but whether the average man who resides in that locality would take the same view of the matter. The law of nuisance does not guarantee for any man higher immunity from discomfort or inconvenience than that which prevails generally in the locality in which he lives. He who dislikes the noise of traffic must not set up his abode in the heart of a great city. He who lives peace and quiet must not live in a locality devoted to the business of making boilers or steamships Thus, in Sturges v. Bridgman, (1879) 11 Ch. D. at 865, Thesiger L. J. said what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey'. In Polsue & Alfieri v. Rushmer (1960) 1 Ch. 234 ; (1907) A. C. 121 this doctrine of the local standard of comfort was definitely accepted by the Court of Appeal and the House of Lords." See also St. Helens Smelting Co. v. Tripping (1865) 11 H. L. C. and other cases referred to in the book. On a perusal af the above passage it is quite clear that it is the locality that must be taken into consideration in a case of nuisance by noise and that in considering the standard of comfort the character of the neighbourhood has to be taken into consideration. In other words the test of a nuisance causing personal discomfort is the actual local standard of comfort and not an ideal and general standard. But at the same time it is to be noticed that the standard of comfort, which is determined by the locality is limited to those case where the nuisance complained of is productive of sensible personal discomfort, It has never applied where the nuisance complained of consists of material injury to property. The principles laid down by Salmond above-mentioned have been followed in several cases in India. See the cases of (1) Cawashah Bomanji Parakh v. Profulla Nath Rudra, AIR 1941 Nagpur 364, (ii) Sheikh Ismail v. Venkatanarasimhulu, AIR 1936 Madras 905, (iii) Dhannalal v. Thakur Chittarsingh Mehtap Singh, AIR 1959 Madhya Pradesh 240, (iv) Messrs. Dutta Mal Chiranji Lal v. L. Ladli prasad, AIR 1960 Allahabad 632. Obviously, therefore, an arbitrary standard cannot be set up which is applicable to all localities. There is a local standard applicable in each particular place and ultimately each case has to be decided on its own facts having regard to the surrounding circumstances. But this does not, however, mean that a person living in a district specially devoted to a particular trade cannot complain of any nuisance by noise caused by the carrying on of any branch of that trade without carelessness and in a reasonable manner. In Rushmer v. Polsue and Alfieri Ltd. (1906) 1 Ch. 234 in a neighbourhood devoted to printing, a printing office was established next door to the plaintiff's residence which rendered sleep impossible. It was contended that a person living in that locality could not complain of such a noise as the neighbourhood carried on, and was devoted to printing work. This argument was repelled by the court of Appeal, and in repelling it Cozens-Hardy, L. J. especially observed at page 250 :

(3.) In the present case, I think, lower appellate court has not at all applied the true test to determine as to whether the running of the defendant's mill amounted to an actionable nuisance. It wrongly ignored the important evidence on record regarding existence of other mills in the locality saying that the same was irrelevant, The trial court did consider them as will appear from the following. It has said : "P. W. 1 in cross-examination has said that a number of mills existed or do exist in the locality such as the mill of Sitaram Banarsi Lal and others. That the defendant's mill is not the only mill or the solitory mill in the locality............... P. W. 2 admitted in cross-examination that north of his house there is an Ata Chakki mill of Babu Maharaj. He admitted that his house is in between the mill of Babu Maharaj and the disputed mill.................. P. W. 3 has admitted in cross-examination that there are number of mills in Bazar, large and small ;........ ... P. W. 4 admitted in cross examination that the mill of Babu Maharaj is just behind his house. He has further admitted that there is compound wall of Pucca brick around the mill in question........ P. W. 5 has admitted that the mill of Dhanna Lal is situate at a distance of 400 to 500 cubits south from his shop............ P. W. 6 has admitted about the existence of Punam Chandra Prakash Mill and about the fact that on the upper storey of the mill there is residential house. He has admitted about Chundi Chokhaniya's Oil Mill and about the fact that people live in the neighbourhood of that mill............ P. W. 11 the son of plaintiff has admitted in cross-examination that there is a big mill of Dhanraj Sagar Mal across the road in front of the house of Raghunath Prasad Sodani, advocate." After referring to all these evidences the trial court concluded that people in the locality were used to live very close to such mills without feeling any discomfort and that even advocates were used to live without any discomfort and inconvenience. It was argued before the lower appellate court by the defendants that when others could live with noise produced by the mills why should not the plaintiffs put up with the noise produced by the mill in question. The lower appellate court gave the following reply to that argument :