HAKIM MOIN UDDIN Vs. SHEIKH ABDUS SAMAD

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for injunction. It appears that the defendant applied to the Municipal Board for permission to install a flour mill in a4 certain building, and permission was granted on certain conditions. The building in question adjoins the plaintiff's house, and the latter appealed against the order of the Municipal Board, but his appeal was disallowed. Thereafter he instituted the suit out of which this appeal arises. The plaintiff's case was that his house had been cracked by the vibrations from the mill and had become uninhabitable on this account and also on account of the smoke and noise attendant on the working of the mill, and the plaintiff's health had been adversely affected. One of the pleas in defence was that the Civil Court had no jurisdiction to entertain the suit.

(2.) The trial Court found in favour of the defendant and dismissed the suit on the ground that it was barred by Section 321, U.P. Municipalities Act. On appeal the decree of the trial Court was reversed and the suit was remanded for decision on merits. A second appeal was preferred to this Court and was dismissed by a learned Judge. From that decree the present appeal has been filed under the Letters Patent. The only point for decision before us is whether the suit is or is not barred. Learned Counsel for the defendant-appellant relies on Secs.245, 318 and 321, Municipalities Act, and he pleads that the suit is barred by reasons of Section 321. Section 245 authorizes a Municipal Board to direct any person who is using a building or place within the limits of the Municipality as a factory, etc. to desist or refrain from so using it or to use it under certain conditions if a public nuisance is being occasioned or is likely to be occasioned. Section 318 gives a right of appeal to a certain authority to any person aggrieved by an order of the Board passed raider Section 245 and certain other Secs.of the Act; and Section 321 provides: (1) No order or direction referred to in Section 318 shall be questioned in any other manner or by any other authority than is provided therein. (2) The order of the appellate authority confirming, setting aside or modifying any such order or direction shall be final.

(3.) There are two answers to learned counsel's plea that the suit is barred under Section 321 of the Act. In the first place, Section 245 of the Act is concerned with public nuisances, whereas upon the facts alleged the nuisance complained of in the case with which we are now dealing is essentially of a private character. The plaintiff prayed for an injunction on the ground that the working of the defendant's flour mill was causing a nuisance to him personally as an individual living next door to the defendant. There is no suggestion in the plaint that any other members of the public, apart from the plaintiff, were in any way being adversely affected by the working of the flour mill.