Madras High Court
Mowbrays Flats Owner'S Association vs C.A.M. Riazuddin Alias Riazuddin ... on 31 January, 2000
Equivalent citations: AIR2000MAD313, AIR 2000 MADRAS 313, (2000) 2 MAD LW 840
JUDGMENT B. Akbar Basha Khadiri, J.
1. This Original Side Appeal has arisen in this way:--
The respondent herein is the owner of the site, who promoted the apartment complex, known as Mowbrays Flats, which consists of twelve flats excluding the ground floor. The respondent herein retained a portion of the ground floor, which he initially let out to a Motorcycle Showroom-cum-Service Centre. Later, the Showroom was vacated and the respondent herein is contemplating to run a restaurant in a portion of the ground floor, for which purpose, he has entered into an agreement with the second defendant in the suit, by name, Samir Singla. Therefore, the appellant herein in his capacity as the President of Mowbrays Flats Association filed the suit in C.S. No. 842 of 1999 to restrain the defendants therein from running the restaurant, since the restaurant would generate nuisance and cause much inconvenience to the inmates of the houses. According to the appellant herein, all type of persons would come to the restaurant, may cause noise and disturbance and they may occupy the common place. It is also contended by the appellant herein as the plaintiff, that the chimney to be constructed may cause air pollution and the drunkenness of the customers may cause inconvenience to the residents.
Along with the suit, the plaintiff/appellant herein filed an application in O.A. No. 698 of 1999 for grant of ad-interim injunction to restrain the respondent herein from running the restaurant. The respondents/ defendants opposed that application contending that one another restaurant under the name and style of 'Catamaran' is being run on the northern side of the ground floor, that the restaurant to be run is going to be a sophisticated restaurant with ultra modern facilities, which could not cause any noise pollution or air pollution, and that the chimney to be constructed will be of a higher grade than what is suggested by the Pollution Control Board. They have also stated that no drinks will be supplied to the customers and the customers will not be allowed to drink in the restaurant. They have also undertaken that the customers will not be permitted to use the common place and if need, be, necessary arrangements and rectifications would be made to see to the comfortable living of the inmates of the flats. The respondents/defendants have stated that they have borrowed huge amount and invested in the restaurant and the entire investment would go as waste, if they are not allowed to run the restaurant.
The learned single Judge who enquired into the matter held that the area has been admittedly declared as a mixed residential area by the statutory authority, that the defendants/respondents have obtained necessary approval from the Corporation of Chennai and other authorities, that it was also agreed by the memorandum of association of the plaintiff/appellant association that the ground floor was agreed to be allowed for renting for business, commercial and industrial purposes, that no liquor will be served in the restaurant, and that the common area would not be put to use by the customers. The learned single Judge also held that the plaintiff/ appellant had not made out a prima facie case and the balance of convenience is only in favour of the respondents/defendants, and consequently has disallowed the application, but imposed certain restrictions on the respondents/defendants. Aggrieved by the orders passed by the learned single Judge, the applicant, who is the plaintiff in the suit, has come forward with the instant Original Side Appeal.
2. Heard both the sides. It is not in dispute that the proposed restaurant is to be run in the ground floor of the complex. It is also admitted that already another restaurant is being run in the other portion of the ground floor. It is admitted that the first and second respondents in the application have entered into an agreement for running of a restaurant. According to the appellant, the leave and agreement to run a restaurant can be acted upon only as a tripartite agreement entered into between the appellant and the respondent herein and the second respondent in the application, but the respondent herein and the second respondent in the application having not done so, the interse agreement of leave and licence entered into between the respondent herein and the second respondent in the application is invalid and non-est in law. As already pointed out by the learned single Judge, the appellant herein not being a party to the agreement that had been entered into between the respondent herein and the second respondent in the application, cannot contend that because there is a clause in the said agreement, there should be a tripartite agreement for granting a leave and licence the agreement is vitiated.
3. The next contention of the appellant is that the restaurant would be more of nuisance to the residents and therefore, it should not be run. It is evident that the appellant has admitted that the property is situate in a mixed residential area as classified by the Corporation of Madras. According to the respondent, the ground floor area is admittedly a commercial area. In fact, it is pointed out that as per Clause 3(i) of the memorandum, it was agreed that the ground floor area can be rented out for business, commercial or Industrial purpose. It is also admitted that a restaurant under the name and style of 'Catamaran' is functioning in the northern side of the ground floor. The learned single Judge has pointed out that the appellant herein had not moved even a little finger to vacate that restaurant or complained about its activities. Thus, already when there is another restaurant functioning in the other portion of the premises, it cannot be said that the second restaurant would cause inconvenience to the residents.
4. It is vehemently argued by the learned counsel for the appellant that functioning of the restaurant would be more nuisance and all sorts of the people would be visiting the place and it may cause inconvenience to the residents. As pointed out by the learned single Judge, already customers are visiting the other portion of the ground floor, where the restaurant 'Catamaran' is being run, and therefore, it cannot be said that visiting of customers would cause inconvenience to the residents. Ofcourse, the residential area starts from the first floor. It is contended by the appellant that the customers may occupy the common area and cause inconvenience to the residents. The respondent herein and the second respondent in the application have given an undertaking that the common area will not be used by the restaurant and the customers will not be allowed to stay in the common area. It is also submitted by the appellant that liquor may be served and it may cause inconvenience. The respondent herein and the second respondent in the application have undertaken that neither liquor would be served, nor the customers would be allowed to take liquor in the restaurant. In fact, the learned single Judge has imposed the following conditions for running of the restaurant:--
"(1) The entire restaurant should be within the own premises of the first defendant and no act or any temporary structure should be put up either in the common area or in any other place causing Inconvenience to the other flat occupants.
(2) No bar should be allowed to run in the place and no liquor should be supplied in the place and if there is any violation, it is open to the authorities to cancel the licence and the defendants also should not apply for any licence for running a bar and they are restrained from applying for licence also.
(3) The restaurant should not be kept open after 11.00 p.m. (4) The chimney should be located in such a way without affecting the rights of the other inmates of the house and that too also be provided within the place belonging to the first defendant and the defendants should not trespass into the area of the other flat owners."
Therefore, all the objections raised by the appellant herein have been taken care of by the learned single Judge while passing the order.
5. The learned counsel for the appellant raised further contention that running of a restaurant would cause more nuisance and cited certain decisions.
6. The word 'nuisance' has been defined in the third edition of Winfield's Textbook of the Law of Tort as follows :--
"Nuisance is the unlawful interference with a person's use or enjoyment of land, or of some right over, or in connection with it."
The learned counsel for the appellant cited the following authorities where it was considered that nuisance is actionable and injunction was granted.
(i) In Thompson-Schwab v. Costaki, (1956) 1 All ER 652, where when each of the plaintiffs occupied a dwelling-house as their residence together with their family in a good class residential street in London, the defendants used the adjoining house for the purpose of prostitution, it was held that the activities of the defendants constituted a sensible interference with the comfortable and convenient enjoyment of the plaintiffs' residences, having regard to the usages of civilised society and to the character of the neighbourhood. As the act of the defendants was nuisance causing to the neighbouring owners, injunction was issued restraining the defendants to use their premises, for such purpose.
(ii) In Laws v. Florinplace Ltd. (1981 (1) All England Reports 659), where the defendant opened a sex shop in predominantly residential area, it was held that the principle on which the Court acts extended to cases where the use made by the defendant of his property was such that, while not necessarily involving a breach of the criminal law, it was such an affront to the reasonable susceptibilities of ordinary men and women that the fact of its being carried on in such a way that its nature was apparent to neighbours and visitors constituted an interference with the reasonable domestic enjoyment of their property, it was also held that in the circumstances, it was impossible to say that there was not at least a triable issue whether the existence of a business like that of the defendants', conducted so that the nature of the business was evident to residents of and visitors to the neighbourhood, was not a nuisance independently of any risk of attracting undesirable and potentially dangerous customers, and of any risk that the shop might in the future prove a plague spot which would be a source of Infection in the neighbourhood. Jt was also held that however discreetly conducted, the business would in fact be the sale of hard pornography and would be a business deeply repugnant to the reasonable sensibilities of most ordinary men and women could not be disregarded.
(iii) in S. Hardayal Singh v. Nirmala Devi, which is a case where the plaintiff filed a suit for Injunction to restrain the defendants from running a guest house in the flat, which was adjacent to the plaintiff's flat and having a common staircase, the plaintiff complained that the guest house was run without permission and that the guest house caused her nuisance and interfered with the plaintiffs peaceful living, it was held that if the activity is without a licence, it is per se unlawful and, therefore, any disturbance which can be described as intolerable is likely to lead to the grant of an interim injunction to restrain the carrying on of such activity, that the complaint of the plaintiff regarding disturbance due to the existence of a common staircase and the noisy nature of the persons staying at the 'Guest House' as well as other disturbances created as a consequence of customers of the 'Guest House' arriving at odd times or being drunk or disorderly, it can be said that there is a prima facie case for injuncting the continuance of the 'Guest House'.
7. But, the facts of the case on hand are entirely different from the facts of the cases cited. In the instant case, the area was declared as a mixed residential area and the premises in question, namely, the ground floor is admittedly a commercial area. The appellant association Itself has agreed for the usage of the ground floor as a commercial area. In a portion of the ground floor, another restaurant is being run already. The respondent herein and the second respondent in the application have given assurance that the restaurant is to be run with sophisticated modern amenities and the proposed chimney would not cause any inconvenience or interference with the usage of the residents. The respondent herein and the second respondent in the application have obtained necessary licence and sanction from all the concerned authorities like the Corporation of Chennai, Health Department, Electricity Board and Police, etc. It is not being run Illegally or in an unauthorised manner. They have undertaken not to serve liquor or other intoxicants or allow the customers to consume intoxicants inside the restaurant. The learned single Judge has imposed several restrictions inclusive of a condition that the restaurant should be closed down by 11.00 p.m. The learned single Judge has also permitted the appellant to take up necessary proceedings in the event of breach of conditions. The respondents are trying to run which, admittedly, several restaurants are run a lawful business in a place in that vicinity of. We do not find any ground to interfere with the findings of the learned single Judge. Accordingly, this Original Side Appeal is dismissed. No costs. Consequently, C.M.P. No. 168 of 2000 is also dismissed.