Bombay High Court
Gmm Pfaudler Limited vs Tata Aig Life Insurance Company Limited on 30 August, 2010
Author: Roshan Dalvi
Bench: Roshan Dalvi
1 nm-3741
PGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Notice of Motion No.3741 of 2008
IN
Suit No.3022 of 2008
GMM Pfaudler Limited ... ... Plaintiff
v/s.
TATA AIG Life Insurance Company Limited
& ors. ... ... Defendants
Mr.Simil Purohit with Mr.Gaurav Joshi i/by M/s.Udwadia &
Udeshi for Plaintiff.
Mr.R. Narichania with Mr.A. Sancheti i/by M/s.Paras Kuhad &
Associates for Deft.No.1.
Mr.Ashwin Sakholkar i/by M/s.Vidhi Partners for Deft.No.2.
------
CORAM : SMT.ROSHAN DALVI, J.
DATE OF RESERVING THE ORDER : 4th August, 2010
DATE OF PRONOUNCING THE ORDER : 30th August, 2010
ORDER :
1.The Plaintiff s action is in essence a common law action upon nuisance committed by Defendant No.1 which is actionable as a tort. The Plaintiff occupies and owns the top floor of the building Peninsula Towers (the said building) at Peninsula Corporate Park. The ::: Downloaded on - 06/01/2014 01:10:23 ::: 2 nm-3741 terrace of the Plaintiff s building is just above the Plaintiff s premises. Defendant No.1 occupies the 6th floor of the said building owned by Defendant No.3.
2.It is the Plaintiff s case that Defendant No.1 acquired its premises in June 2004 and put up air conditioning chiller plant consisting of 3 chillers on the terrace of the said building above the Plaintiff s premises. The chiller plant causes vibration and noise in the office premises of the Plaintiff. That constitutes a nuisance to the Plaintiff.
ig It has also been the Plaintiff s case that the vibration of the chillers has caused cracks in the walls and the ceilings of the Plaintiff s premises and structural damage thereto. The Plaintiff contends that it is a threat to the safety and stability of the building.
3.It is the Plaintiff s case that chiller plant required buffers to minimise the vibration and stress on the building structure which Defendant No.1 did not provide. The chillers were installed in the terrace without support of the cement blocks or rubber pads to absorb the weight and the vibration of the chillers.
Defendant No.1 was requested to use the cement blocks which would absorb vibration and the weight of the chillers under certain expert s report obtained by the Plaintiff.
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4.Defendant No.1, as the Plaintiff s neighbour, agreed to take corrective steps. It, upon the report of its expert, caused certain amends to be made to abate the nuisance of noise and vibration, despite which, the Plaintiff contends that noise and vibration continued.
5.The parties have filed numerous affidavits of themselves and of their experts upon certain joint inspection. Both the parties have produced experts reports which are highly technical, and except for abiding by the opinion contained therein, if any, and viable, they are of little use to consider the legal rights of the parties.
6.The correspondence between the parties and their Advocates alleges nuisance and disturbance.
7.The parties have been unable to come to a conciliation of their dispute for the working of the chillers or its construction. The Court must, therefore, see whether the tort of nuisance is made out by the Plaintiff.
8.The Court, therefore, has visited the Plaintiff s premises as well as the terrace where the chillers have been installed by Defendant No.3 to absorb and feel the noise and vibration as also to see the structural damage, if any, to the Plaintiff s premises or any part ::: Downloaded on - 06/01/2014 01:10:23 ::: 4 nm-3741 thereof. The inspection was taken in the presence of the Advocates and Counsel as well as the representatives of both the parties.
9.Defendant No.1 has installed three chillers close to one another on one massive unit on one part of the terrace which is directly above a large part of the conference room of the Plaintiff's office premises. There are various other chillers of various other parties on the terrace. Another chiller of a third party, against whom ig no action is taken, is above another cabin / room of the Plaintiff s premises on the other side of the Plaintiff s premises. Those chillers are also installed on another huge unit.
10.The Plaintiff s representative showed the Court essentially the conference room over which the chillers of Defendant No.1 have been installed. It was stated that that part of the Plaintiff s otherwise large premises suffered most from the vibration and noise from the chillers. The other room under the chiller of a third party was also stated to have suffered from vibration and noise which were also shown to the Court and observed by the Court as well as the parties and their representatives.
11.Defendant No.1 has three chillers on its unit. Because ::: Downloaded on - 06/01/2014 01:10:23 ::: 5 nm-3741 of the complaints of the Plaintiff, Defendant No.1 fixed them on certain concrete slab. The concrete slab is stated to be put and mounted on to the terrace floor. The Plaintiff contends that there is a slight gap between the block and the floor which causes the vibration and noise. The Plaintiff also contends that legs of the chillers are not placed upon beams in the terrace floor which would have taken most of vibration and noise. Defendant No.1 contends that the unit has been fixed as per the expert report and permission thereof has been obtained form the Mumbai Municipal Corporation, without which it would not have been able to use the unit for air-conditioning its office.
12.All the parties, who attended the inspection, remained for a good period of time in the conference room of the Plaintiff s office which was said to have taken the greatest battering from the noise and vibration. The Plaintiff s representative explained to the parties how the screen in the conference room, which was meant to be used at the time of the Plaintiff s meetings upon projector being used for presentation purposes, vibrated with the noise and caused the letterings on the screen to shake. He explained that the Plaintiff s Directors in their Board meetings and other meetings are inconvenienced by the shaking letters, figures or diagrams on the screen. He got printed a few letters on ::: Downloaded on - 06/01/2014 01:10:23 ::: 6 nm-3741 the screen to demonstrate the effect. He also showed that the water kept in a glass on the table shook with the vibration. He requested the Court and all the parties to feel the vibrations by placing their hands on the table whilst the parties sat round the table.
13.These vibrations and noise were observed and gauged at different frequencies upon Defendant No.1 switching off and switching on the three chillers one by one. Hence the parties felt vibrations from the minimum to maximum and thereafter again to the minimum by switching off and on one, two and all the chillers of Defendant No.1 and then switching them off one by one until all were switched off. To fully appreciate and espy the noise and the vibration, and for it to be unmistakable as claimed by the Plaintiff s representative, the Plaintiff s projector, which was over the table of the conference room was also switched off at one point when the noise of the chillers could not be discerned. The noise was to be perceived before the projector was switched off and thereafter.
14.Similarly in the other cabin / room where there was also noise and vibration to which the parties attending demonstration of the Plaintiff were led, it had to be detected by placing the hands of the attendees on two tables available in that room. This was also ::: Downloaded on - 06/01/2014 01:10:23 ::: 7 nm-3741 demonstrated by requesting a third party who had put up other chillers to switch off and switch on their chillers one by one. The Plaintiff claims that the noise and vibration from the chiller of the third party was less than the noise and vibration from the chillers of Defendant No.1.
15.Thereafter all attendees inspected the chillers of both the parties on the terrace and observed that there were even other chillers over other offices on the same floor which was the top floor of the said building.
Aside from the visual inspection as described above, the Court was not concerned with and the parties did not exhibit any other features or characteristics of the chiller plant.
16.The representative of Defendant No.1 emphasised the fact that three chiller plans are installed so that two of them can function at a given time. This would allow the chillers to be used in rotation for their better upkeep and maintenance. However, he emphasised that on several days, as was on the date of the inspection itself, only one chiller was used and operated by Defendant No.1. He claimed that it was only on hot summer days that two chillers work throughout the day. He expressed apprehension that the chiller plant may be damaged when all the three chiller plans were switched ::: Downloaded on - 06/01/2014 01:10:23 ::: 8 nm-3741 on at one time to show the Court the noise and vibration they together created. He stated that at that time Defendant no.1 had got its doors and windows opened up so that all the chiller plans could be switched on maximum load. He apprehended that if that situation continued for some time, it might damage the system.
17.After some minutes of observation by all the parties present, the chiller plans were, as aforesaid, directed to be switched off one by one.
18.What is material for the Court to consider is the extent of the noise and vibration caused by the chiller plant. When one chiller was on, vibration was almost imperceptible. There was no noise at all. When two chillers were switched on, vibration slightly increased. The noise was difficult to perceive but some humming noise could be heard if it was attentively tried. When three chillers were switched on, there was some discernible noise and vibration. The vibration at these times could not be felt on the chairs where the attendees sat. It could be felt if hands of the attendees were put on the table; with each chiller being switched off, the pressing of the hands required to be increased to feel the vibration.
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19.At one point, it was observed that there was some other noise in the conference room. The Plaintiff s representative himself admitted that that could have been the projector below which the attendees sat round the table. Hence the projector was switched off and there was a complete, perceptible, unmistakable silence.
20.The water in the glass, which was specifically shown to the parties to vibrate, was shown to shake at some point in time. Over a good length of the inspection period it was noticed that the water in the glass was still.
21.The letterings on the screen were not seen to shake at all at most of the time during the inspection. A slight wave of the letters could be seen when all the chillers of Defendant No.1 were switched on and the parties felt vibration on the table more conspicuously than at other times. Even at that time it was noticed that cursor on the screen was essentially the only movable item.
22. The other room/cabin of the Plaintiff was smaller. It was alleged and claimed that noise and vibration in the room was lesser. Since there was noise and vibration claimed by the Plaintiff, the attendees were taken to ::: Downloaded on - 06/01/2014 01:10:23 ::: 10 nm-3741 that room also for observation. The attendees only stood in that room for a shorter duration and upon placing their hands on the table they felt the noise / vibration. That noise was also slight. It had to be discerned by pressing the hand on the table just as that had to be done when one chiller of Defendant No.1 was switched on whilst the attendees sat round the table in the conference room of the Plaintiff.
23.It is based upon this observation of the Court that the Plaintiff s actionable ig claim in tort for the nuisance caused by noise and vibration is to be adjudged.
24.Salmond & Heuston on the Law of Torts, Twentieth Edition of the chapter on nuisance in the paragraph sub-titled Give and take sets out this legal principle thus:-
If the defendant has created a nuisance, it is actionable; but the reasonableness, of his conduct is relevant in determining whether he has in truth created a nuisance. For a balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. In this context reasonableness is a two-sided affair : it is not enough to ask if the defendant has acted reasonably it must be asked if he has acted reasonably having regard to the fact that he ::: Downloaded on - 06/01/2014 01:10:23 ::: 11 nm-3741 has a neighbour.
25.The cases for the specific reliefs prayed for by the Plaintiff upon the nuisance suffered have been considered by English as well as Indian Courts since the early part of the last century. They appear to have dwindled a modern times in which parties are more prone as well as exposed to noise and vibration from various kinds of traffic as well as electric and electronics installation, which would dull, if not eliminate, other noises created by men. However, the law to be considered and the reasonableness of the nuisance, if any, committed by the Defendants to be seen would rest on similar parameters.
26.In the case of Vanderpant vs. Mayfair Hotel Company Limited, (1930) Chancery Division 138 the Court considered nuisance by noise from the adjacent property in a claim for injunction. It was held that the Plaintiff should have sustained particular and substantial and direct damage beyond the general inconvenience and injury to the public and that noise will create an actionable nuisance only if it materially interferes with the ordinary comfort of life, judged by ordinary plain and simple notions, and having regard to the locality; the question being one of degree in each case. That was a case of a large ::: Downloaded on - 06/01/2014 01:10:23 ::: 12 nm-3741 hotel including a kitchen built by the Defendant close to the Plaintiff s private residence with windows overlooking the Plaintiff s premises. A hitherto quiet highway, with very little traffic passing over it, became a busy street with vehicles going to and fro congested the road at times. The Plaintiff complained inter alia of the nuisance of noise. It has been held at page 150 of that case thus:-
On the question of fact whether there has been a nuisance by noise, the Court of course cannot take into consideration the effect of an injunction on the defendant company s large hotel business. There has undoubtedly been a great volume of noise proceeding from the kitchen, and the close proximity of the plaintiff s private residence must be taken into consideration. The evidence shows that the plaintiff had to keep his windows closed in the day time as well as at night, though it is admitted that the noise is more bearable if the ventilators of the defendant s kitchen were kept closed. But all the plaintiff s witnesses have stated that they have been greatly disturbed at night by the noise, and cannot get proper sleep. It is submitted that the noise does constitute a legal nuisance. The plaintiff is entitled to the injunction that he seeks.
Upon the evidence led by the parties, the Court considered the test of nuisance at page 165 thus:-::: Downloaded on - 06/01/2014 01:10:23 :::
13 nm-3741 It is therefore necessary to consider the question whether the defendant company, in the carrying on of the hotel business, has caused a sufficient noise to entitle the plaintiff to relief at law.
....every person is entitled as against his neighbour to the comfortable and healthful enjoyment of the premises occupied by him, and in deciding whether, in any particular case, his right has been interfered with and a nuisance thereby caused, it is necessary to determine whether the act complained of is an inconvenience materially interfering with the ordinary physical comfort of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions obtaining among English people : see Walter v. Selfe, (1) (1851) 4 De G. & S. 315, 322. and the remarks of Knight Bruce V.-C. It is also necessary to take into account the circumstances and character of the locality in which the complainant is living. The making or causing of such a noise as materially interferes with the comfort of a neighbour when judged by the standard to which I have just referred, constitutes an actionable nuisance, and it is no answer to say that the best known means have been taken to reduce or prevent the noise complained of, or that the cause of the nuisance is the exercise of a business or trade in a reasonable and proper manner.
The Court observed that the evidence established that the Defendant carried on hotel business in kitchen adjoining the Plaintiff s house; it was ventilated by a series of ::: Downloaded on - 06/01/2014 01:10:23 ::: 14 nm-3741 windows which face the Plaintiff s house, the windows were invariably open, 70 members of the staff worked therein, the orders of the meals were given which were cooked in the kitchen, the plates were heated specially at lunch and dinner times though the Defendant has done what it can to minimize to noise in the kitchen. It was observed that it would be impossible for a kitchen of that size with the staff that it had not to make a considerable noise . The Court observed that the Plaintiff had to shut the windows of the dining room to prevent the noise interfering with the conversion at supper ig time. He often found it impossible to get sleep. The nuisance was caused by the early hours of the morning by the staff of the hotel leaving the entrance of the hotel in the street where the Plaintiff s room was. The noises frequently awakened several witnesses. They could not enjoy proper period of rest and sleep, etc. An injunction came to be granted in general terms with regard to the kitchen. The Plaintiff succeeded on that issue and lost on the other.
27.It would be interesting to understand which part of the Plaintiff s action was lost. The Plaintiff had also complained of nuisance by the noise caused by the arrival and departure of the hotel staff and the delivery of goods at the hotel. This was only injuncted between 10 p.m. and 8 a.m. ::: Downloaded on - 06/01/2014 01:10:23 ::: 15 nm-3741
28.The aforesaid judgment shows the ambit within which an action of nuisance can be maintained by the Plaintiff and entertained by the Court.
29.The case of Walter v. Selfe (supra)referred in in the case of Vanderpant (supra) was the nuisance caused by burning bricks on a man s own ground so as to be offensive to the neighbour. The burning took place near the Plaintiff s premises. The odour was carried in the Plaintiff s premises by grills. The Plaintiff was held entitled to restrain the nuisance by injunction.
30.The law laid down in the case of Walter v. Selfe (supra) appears to have prevailed over more than a century. The case of Bridlington Relay vs. Yorkshire Electricity Board, (1965) 1 All England Report 264, considered the law laid down therein. That was the case of nuisance from vibration caused on the television screen of the customers of the television service provider because of interference caused to the reception by wires of the overhead power line of the Defendant. In that case the Plaintiff provided television broadcasting. It erected a mast on its own land for that purpose. Soon thereafter the Defendant erected an overhead power line within 250 yards of the mast. It interfered with the reception of radio and television transmission at the mast. The Defendant ::: Downloaded on - 06/01/2014 01:10:23 ::: 16 nm-3741 made effort to suppress the interference from the power line. The Court had to see the nuisance from the electrical interference to which the Plaintiff was entitled and it observed that it could not exceed that of the ordinary domestic viewer, as an ordinary person entitled to the ordinary enjoyment of his property when used in the ordinary way. The Court further observed that it would not extend to the exceptional degree of immunity . Considering the case of Walter v. Selfe (supra), it observed thus:-
....
interference with a recreational amenity, such as television viewing, would not normally constitute a sufficient interference with the ordinary beneficial enjoyment as to amount to a legal nuisance.
In that case because of the height of the aerial mast, the Plaintiff was able to obtain a much stronger signal than could be obtained on an ordinary domestic aerial erected on the roof of a house. The Plaintiff s signal strength was 100 times the signal strength of the ordinary aerial. This resulted in disturbance in the domestic aerials. The Plaintiff s aerials could compete much more effectively with the electrical interference and so minimise its effect on the quality of the picture produced by the signals.
There was a seasonal difference in the interference caused. The consumption of electricity was much higher in winter when both transformers were in operation at once. It was ::: Downloaded on - 06/01/2014 01:10:23 ::: 17 nm-3741 observed that the Plaintiff s aerials were directional; so constructed as to be particularly sensitive to signals reaching them from the particular direction and much less sensitive to signals reaching them from any other direction. The test conducted showed minimal interference during dry weather; the quality of the picture degrading when it rained, and decreasing 30 minutes after the rain continued and ceased to be after two hours of heavy rain. There was other interference also but which had no connection with the Defendant s power line.
The Court observed the inevitable use of the television and its aftermath thus:-
The reception of television and wireless are not merely recreational; they provide news and education as well. Further, if a house is so sited that television reception is affected, that might well affect the price of the house on a prospective sale. Television is widely used, and is regarded as a source of pleasure and recreation which should not be interfered with at home. Noise provides an analogy. It is not necessary to prove detriment to health if it can be shown that life in the house is rendered uncomfortable by noise and interference from outside. The interference from noise and smell has to be related to the comfortable enjoyment of the landowner s property, but the principle remains the same. The degree of comfort to which a landowner is entitled must march with the years. The widespread use and enjoyment of television and wireless must be taken into account. They ::: Downloaded on - 06/01/2014 01:10:24 :::
18 nm-3741 introduce a new dimension into the consideration of actionable nuisance.
I was invited and am prepared to take judicial notice of the fact that the reception of television has become a very common feature of domestic life. The evidence has shown that the quality of reception enjoyed in different parts of the country varies widely, mainly for geographical reasons.
I do not think that it can at present be said that the ability to receive television free from occasional, even if recurrent and severe, electrical interference is so important a part of an ordinary householder s enjoyment of his property that such interference should be regarded as a legal nuisance.
It can be seen how the law changes with the times and how nuisance at one time upon a particular set of circumstances in which the parties lived may acquire a diametrically different dimension in later times when the parties lived differently. It must be appreciated that in these modern times in posh offices the air-conditioning has become the rule of the day. There is almost no office in the metropolis of Mumbai, which today is non air-conditioned. The larger the office the larger the requirement of the air-conditioning plant and its consequent dimension and tonnage with the resultant vibrations and noise. This is similarly emanated from other electrical and electronics equipment without which modern day offices do not function.
::: Downloaded on - 06/01/2014 01:10:24 :::19 nm-3741 The projector of the Plaintiff itself is an illustration on the point. It caused almost the same discerning humming noise as one of the Defendants chillers. In fact, because the two were indistinguishable that the Plaintiff s projector had to be and was switched off. It resulted in the same silence as would be perceived if an air-
conditioning unit in a given room was switched off. Upon the tests laid down in the case of Vanderpant (supra) and Walter v. Selfe (supra) the interference from noise must be unreasonable interference in the circumstances of the case and taking into account all relevant factors, including how the parties conduct themselves at their residence or at work for the grant of injunction.
31.In the case of Baxter vs. Camden London Borough Council, (1999) 1 All England Law Reports 237, which considered nuisance at a still later period, the Plaintiff s claim of undue interference with the ordinary use of her flat by the noise from the adjoining flats was dismissed. In that case in 1975 the Defendant-Council converted a Victorian end of terrace into an apartment house. At that time there was no statutory requirement of providing sound insulation.
Consequently, only the noise barriers between the flats were the plasterboard ceilings and the wooden floors. The noise was felt because of poor sound proofing between the flats. It was held that Council was not ::: Downloaded on - 06/01/2014 01:10:24 ::: 20 nm-3741 liable as the Plaintiff had taken the premises in such defective state. What was observed in the earlier case of Sampson vs. Hodson-Pressinger, (1981) 3 All ER 710 was set out at page 241 thus:-
A landlord is liable for any mischief that arises from the natural and necessary result of what he has authorised and required. He is held to know or presumed to know what the natural and necessary result will be, and he is equally liable if his reason for not having that knowledge was failure to use reasonable care to ascertain it.
ig It is no defence to a claim in nuisance that the premises are being used in a normal way if the premises are not fit to be used in a normal way without interfering with the reasonable enjoyment of adjoining occupiers.
The questions to be determined in the case were enumerated thus:-
1. Has the plaintiff proved that the level of noise transmitted to the plaintiff s flat from the ordinary use of the adjoining flats was, at the date when the proceedings were commenced, such as to interfere with her reasonable enjoyment of her flat ? That question is to be determined as a matter of fact and degree on all the circumstances of the case.
2. If the answer to the first question is yes, has the plaintiff also proved that the defendant knew or should be presumed to have known that the level of noise transmitted to the plaintiff s flat would be such as to have ::: Downloaded on - 06/01/2014 01:10:24 :::
21 nm-3741 that effect when they let the flat to her in 1992?
3. If the answer to the second question is also yes, to what damages or other relief is the plaintiff entitled ?
32.Regarding the the tort of nuisance, the Court held thus:-
The tort of nuisance still has a valuable role to play although many of the activities with which the old cases were concerned are now regulated by planning, housing, building and public health legislation. The essence of the tort is undue interference with the use or enjoyment of land. The court must maintain a balance between the right of the defendant to do what he likes with his own land and the right of the plaintiff not to be interfered with. In striking this balance in the case of noise nuisance (and other nuisances of this type), the court will obviously have to consider the locality, age and physical characteristics of the premises in question.
Occupiers of low cost, high density housing must be expected to tolerate higher levels of noise from their neighbours than others in more substantial and spacious premises.
(Underlining supplied)
33.After considering the Sampson s case (supra), and the other cases following therefrom, it was again held at page 244 thus:-
::: Downloaded on - 06/01/2014 01:10:24 :::22 nm-3741 I think the authorities do show that ordinary use of residential premises without more is not capable of amounting to a nuisance.
Ordinary use may only give rise to a nuisance if it is unusual or unreasonable having regard to the purpose for which the premises were constructed.
(Underlining supplied) The harshness of the common law was accepted. The Court sympathised with the Plaintiff. The Court considered that the parliament had to an extent smoothened the edges of the common law. However, the Court held that noise from the adjoining flat did not unduly interfere with the Plaintiff s enjoyment of her flat and did not amount to actionable nuisance.
34.The cases in India relating to tort of nuisance posed similar difficulties since the earlier times. In the case of Janki Prasad & ors. vs. Karmat Husain & ors., ILR 53 Allahabad 836, the noise from a Hindu temple disturbed the prayers of certain Muhammadans at the recognised times the Muhammadans prayers. It was observed that private nuisance must either affect the man s property or his physical comfort to a material extent. The case of Soltau vs. De Held, (1851) 2 Sim. (N.S.) 133 was considered. That was the case in which pealing of church bells was alleged to have caused inconvenience and annoyance by its loud and frequent ringing at unseasonable hours which was complained to ::: Downloaded on - 06/01/2014 01:10:24 ::: 23 nm-3741 be offensive to the ears and feelings of the Plaintiff and which disturbed the quiet and comfort of the houses and molests. It was held thus:-
A peal of bells may be, and no doubt is an extreme nuisance, and, perhaps, an intolerable nuisance to a person who lives within a very few feet or yards of them.
While considering the ambit of the tort of nuisance, it was held that the Plaintiffs in the temple had a right to worship with music but they must not occasion nuisance, disturbance and annoyance to the Defendants at their prayer times.
Halsbury s Laws of England, Volume 21, page 531 was considered with regard to the enjoyment of the premises by the Plaintiff thus:-
A nuisance by noise (supposing malice to be out of the question) is emphatically a question of degree . . . Such things, to offend against the law, must be done in a manner which, beyond fair controversy, ought to be regarded as exceptive and unreasonable.
.... it is necessary to determine whether the act complained of is an inconvenience materially interfering with the ordinary physical comfort of human existence, not merely according to elegant or dainty modes and habits of living, but ::: Downloaded on - 06/01/2014 01:10:24 :::
24 nm-3741 according to plain and sober and simple notions obtaining among the English people.
The question of nuisance or no nuisance is one of degree, and depends upon the circumstances of the case.
Further, the case of Heath vs. Mayor etc. of Brighton, (19) (1908) L.T., 718 was also referred to. This dealt with the complaint that certain plant for generating electricity made a humming noise so as to cause nuisance. That was a case of a noise to the persons attending a church. The Court held that they would only be entitled to ordinary comfort and enjoyment of a dwelling house even in the church but they would not be entitled to anything more than the ordinary amount of quiet in a town. That was the case where the noise came from certain works 100 ft. from the nearest point of church. It was a low humming sound and not a loud noise. The description of the noise in the words of Joyce, J. at page 720 was cited thus:-
..... cannot be heard during the singing or playing of the organ or when anything is going on, in other words when there is any other sound in the church. An ordinary person would not, I think, be really disturbed by it in hearing the sermon or the reading of the lessons, or such parts of the service as are not choral. In certain parts of the church it cannot be detected by listening, even when there is otherwise perfect silence, and sometimes it cannot be heard at all anywhere in the building . . . Most ordinary people may, I think, attend this church without experiencing real annoyance from the sound from the works; many ::: Downloaded on - 06/01/2014 01:10:24 :::
25 nm-3741 would care nothing about it even if they heard it at all.
In that case also the injunction was refused, which in turn following therefrom, came to be refused in the case of Janki Prasad (supra).
This case is almost identical. The Plaintiff suffers form a humming sound. The noise is rather indiscernible when only one chiller of Defendant No.1 was in use. It may, of course, increase albeit slightly when the second chiller is put on. This is not put at all times. The Plaintiff itself has a sophisticated noise proof air-conditioned office. The Plaintiff also has the noise making or humming projector. In these days of business which is invariably carried on with various gadgets the quiet of a town that the Plaintiff desires in its conference is a luxury that the Plaintiff can ill-afford.
35. The lack of such precedents in the later years is a true pointer to the change of times diluting the disturbance and annoyance from noise and vibration as much as modern times have seen the dilution of law of easement relating to light and air in heavily constructed upon metropolis where skyscrapers stand cheek by jowl.
36. The reasonableness, which has been enunciated by ::: Downloaded on - 06/01/2014 01:10:24 ::: 26 nm-3741 various Lord Justices in various cases, has been set out in Administrative Law by Sir William Wade and Christopher Forsyth, Eighth Edition in the chapter of principles of reasonableness at page 366 thus:
Taken by itself, the standard of unreasonableness is nominally pitched very high:
`so absurd that no sensible person could ever dream that it lay-within the powers of the authority (Lord Greene MR); so wrong that no reasonable person could sensibly take that view (Lord Denning MR), so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it (Lord Diplock).
37.The principles of Wednesbury reasonableness, which otherwise apply to Administrative Law continue to apply to the cases of torts albeit in another form in common law actions based upon justice, equity and good conscience. Determination of the Plaintiff s rights are governed more by reasonableness of the Defendant s action in keeping with the socio-economic changes. The enunciation of Lord Greene M.R. in the case of Associated Provincial Picture Houses, Ltd. vs. Wednesbury Corporation, 1947 (2) All England Law Reports 680 which has since been followed in hundreds of cases apply to the case of torts just as well. The principles of the discretion to be exercised by an authority which has the power to exercise the ::: Downloaded on - 06/01/2014 01:10:24 :::
27 nm-3741 discretion is required to be reasonably exercised. The ambit of reasonableness is that a person entrusted with the discretion directs himself properly in law. He must call his attention to the matters he is bound to consider. He must exclude from the consideration of the matters which are irrelevant to the matters which he has to consider. If he does not obey those rules, he would be acting unreasonably. The condition imposed by a local authority upon a cinema house which exhibited performances on Sunday that children below 15 years of age had to be accompanied by an adult was held to be sound and reasonable taking into account the physical and moral health of children.
38.This case popularly known as Wednesbury case has been followed ever since and has emerged in the doctrine of proportionality in the recent time. (See : State of Madhya Pradesh & ors. vs. Hazarilal, (2008) 3 SCC 273).
39.It is seen that the reasonable noise of vibration emanating from the chiller/chillers of Defendant No.1 is not such as would cause such undue annoyance and disturbance to the Plaintiff as would constitute an actionable tort of nuisance, though as in the case of Baxter(supra) the Court would have sympathy with the Plaintiff who at times may not enjoy the quiet of a town in the placid atmosphere of the conference room ::: Downloaded on - 06/01/2014 01:10:24 ::: 28 nm-3741 of the Plaintiff s office. The Plaintiff s use of that room only where there is the modicum of noise and vibration would not entitle it to sue for injunction in a Court of law.
40.The complaint regarding the damage caused to the ceiling and walls is seen to be completely non- existent, the Plaintiff having claimed to have renovated the office. The Plaintiff s office is indeed spotless and renovated with taste.
41.The Plaintiff s entire premises is a very large. The conference room forms one small portion in one corner of the Plaintiff s premises. The other room is in the corner on the other side of the Plaintiff s premises.
The alleged noise or vibration could be taken care of by the Plaintiff by shifting the conference room where the directors and the managers of the Plaintiff may require to contemplate and work on important decisions at another place leaving Plaintiff s outside staff at the place where the conference room is which would not cause any prominent, notable disturbance to them in the open space.
42.The Plaintiff has, therefore, not made out a prima facie case for being granted an injunction restraining the Defendants from using the chillers or directing ::: Downloaded on - 06/01/2014 01:10:24 ::: 29 nm-3741 Defendant No.1 to remove the chillers as prayed for by the Plaintiff.
43.Hence, there shall be no order on the Notice of
Motion. No order as to costs.
44.It is hoped that the parties, who are decent
businessmen, accept, tolerate and accommodate one
another, as neighbours should, to put an end to this entire unfortunate lis.
ig (SMT.ROSHAN DALVI, J.)
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