Bombay High Court

Ismail Musabhai Memon vs Abdul Aziz Anvar Inamdar on 30 September, 2015

Bench: T.V. Nalawade

                                          1                     SA 223 of 2014

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                        
                     BENCH AT AURANGABAD




                                                
                            Second Appeal No. 223 of 2014

         Ismail Musabhai Memon
         Age 67 years,
         Occupation : Business,




                                               
         R/o Chara Galli Mohalla,
         Nandurbar, District Nandurbar.               ..    Appellant.

                 Versus




                                      
         Abdul Aziz Anvar Inamdar,
                             
         Age Major,
         Occupation : Retired,
         R/o Mojawar Mohalla, Nandurbar,
                            
         District Nandurbar.                          .. Respondent.

                                     --------
         Shri. Prakashsing B. Patil, Advocate, for appellant.
      


         Shri. S.A.P. Quadri, Advocate, for respondent.
                                   --------
   



                                   CORAM:     T.V. NALAWADE, J.

                      Judgment reserved on   : 21st September 2015





                      Judgment pronounced on : 30th September 2015.


         JUDGMENT :

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

2 SA 223 of 2014

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

3 SA 223 of 2014

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.

                                            4                     SA 223 of 2014

         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

5 SA 223 of 2014

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

6 SA 223 of 2014

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 tin-

shed 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

7 SA 223 of 2014

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

8 SA 223 of 2014

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

9 SA 223 of 2014

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

10 SA 223 of 2014

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

11 SA 223 of 2014

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 ?

                                                   12                       SA 223 of 2014

         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