Calcutta High Court
Jadunath Basak vs Mritunjoy Sett And Ors. on 7 January, 1986
Equivalent citations: AIR1986CAL416, 90CWN546, AIR 1986 CALCUTTA 416, (1986) 2 CAL HN 44, (1986) 90 CAL WN 546, (1986) 2 CURCC 460
JUDGMENT Chakravarty, J.
1. This appeal is directed against the judgment and decree passed by Shri S. N. Banerjee, the learned Judge, 13th Bench, City Civil Court, Calcutta, in Title Suit No. 1298 of 1976.
2. The plaintiff filed the aforesaid suit for a declaration that the defendant No. 1 (Jadunath Basak) had no right or authority to run a factory in the suit premises and for permanent and mandatory injunction.
3. It was the case of the plaintiff (Mritunjoy Sett) that he was one of the co-owners of the suit premises No. 43F, Nilmohi Mitra Street, Calcutta, having 3/4th share therein and that defendant No. 2 Kamala Sett, the other co-owner, had l/4th share. The entire first floor of the said premises was in occupation of the plaintiff and the garret at the top was in occupation of the near relation of the plaintiff. The defendant No. 1 was inducted as a tenant in a portion of the ground floor by the defendant No. 2 who occupied the remaining portion of the ground floor. The defendant No 1 &ad been running the business of metal industries with two power driven machines in the tenanted room without the consent of the plaintiff and without any authority from the Corporation of Calcutta and melting and moulding metals and metal wire. In the process of such work, obnoxious and injurious gases were emitted and noise and vibrations were caused by the power-driven machines. The same caused nuisance to the members of the family of the plaintiff specially to his wife who had heart trouble. The continuous vibration was causing damage to the premises itself. The defendant No. 1 did not take any permission for establishing the workshop with power-driven machines from the Corporation of Calcutta under Section 436 of the Calcutta Municipal Act, hereinafter referred to as the Act, nor did he take the required health licence under Section 437 of the said Act. Accordingly, the instant suit was brought for the relief as claimed.
4. The defendant No. 1 contested the suit by filing the written statement. It was contended inter alia that the defendant No. 1 was the tenant under the defendant No. 2 in respect of the tenanted rooms in the ground floor of 43F, Nilmoni Mitra Street and that his maternal uncle Jasodalal Basak about 15 years ago started the business of making half round rings used to human fingers and half inch tin pieces used at both ends of show laces in the aforesaid rooms with the help of two pieces of six inches rollers run by two horse power motors having 220 voltage. After the death of Jasodalal Basak, his widow Milan Bala Basak used to run the business and after her death, the defendant No. 1 had been running that business without any addition or alteration. The defendant No. 1 denied that he had been running any moulding factory and melting metal and metal wire emitting any obnoxious or injurious gas. It was further contended that the suit premises was situated in a mixed locality having several factories and workshops and residential houses and that accordingly the little noise and vibration caused by the small machines of the defendant No. 1 during the working hours from 9 A.M. to 6 P.M. did not amount to any actionable nuisance both to the person and property of the plaintiff and his family. It was further contended that the plaintiff did not bring to the notice of the Corporation that the defendant No. 1 was running the workshop without any authority. Plaintiff was therefore not entitled to get any relief in this suit.
5. The learned Judge, on consideration of the materials on record, found that the defendant No. 1 had no authority or licence to run the factory in the suit premises and that the running of the factory caused nuisance or annoyance to the inmates of the premises and held out potential threat or damage to the building. Accordingly the learned Judge passed the decree in part by declaring that the defendant No. 1 had no right or authority to run the factory in the suit premises and by permanently restraining the defendant No. 1 from running the said factory in the suit premises except in accordance with the terms of a valid authority or licence from the Corporation of Calcutta. Plaintiffs prayer for mandatory injunction was rejected.
6. The defendant No. 1 being aggrieved by that judgment and decree has preferred this appeal on the ground that the learned Judge has committed mistake both in facts and law in passing the decree.
7. Mr. Das appearing for the appellant defendant No. 1 has challenged the judgment and decree mainly on the following points in his submission. His first point is that the learned Judge while arriving at the finding with regard to the nuisance from noise has not considered the defence evidence and has not taken into consideration the special features of the locality which has been found to be a mixed locality with factories and residential houses. His second point is that the learned Judge's finding that the running of the machines in the premises holds out a potential threat or damage to the building is also not based on evidence. His third point is that the defendant No. 1 has been running the workshop with the machines established long back by Jasodalal Basak and that defendant No. 1 only changed the professional licence in 1955 in his name without making any addition or alteration to the same and that accordingly the defendant No. 1 was not under any statutory obligation to obtain permission from the Corporation under Section 436 of the Act. His further submission is that for the absence of health licence under Section 437 of the Act, the defendant No. 1 may be prosecuted in court of Municipal Magistrate as in the past, but no civil suit for permanently restraining the defendant No. 1 from running the workshop can be brought. According to Mr. Das the learned Judge committed mistake in law in making a declaration in the decree to the effect that the defendant No. 1 has no authority to run the factory, and granting injunction except in accordance with the terms of a valid authority or licence from the Corporation.
8. Mr. Banerjee appearing for the respondent-Corporation of Calcutta has made his submission supporting the judgment and decree passed by the learned Judge.
9. Mr. Mukherjee appearing for the plaintiff-respondent has supported the judgment in his submission, but has tried to challenge the decree for injunction subject to some condition as passed by the learned Judge, taking recourse to the decision in (Tide Water Oil Co. (P) Ltd. v. K. D. Banerjee) although the plaintiff-respondent has not filed any cross-objection. Mr. Mukherjee has not, however, challenged the decree in respect of other relief in his submission.
10. Under Section 9 of the Code of Civil Procedure, the Courts shall have jurisdiction to try all suits of civil nature excepting suits of which their cognisance is either expressly or impliedly barred. The provisions of the Calcutta Municipal Act have not either expressly or impliedly barred any person, be a co-owner of the house, to bring a civil suit against the tenant of another co-owner, who has unlawfully installed machines and has been running the same in the tenanted rooms without the consent of all the owners of the house and without any valid authority or licence from the Corporation, for getting a declaration that the said tenant had no authority to run the factory or workshop. The relief prayed for in the suit itself shows that it is a suit of civil nature. Accordingly the suit brought in the present form is maintainable and the learned Judge rightly found so.
11. There is no dispute (as) to the fact that the plaintiff had 3/4th share in the suit premises viz. 43F, Nilmoni Mitra Street and that the defendant No. 2, who is the landlord of defendant No. 1, had 1/4th share therein. There is no dispute (as) to the fact that defendant No. 2 alone inducted the defendant No. 1 in two rooms of the ground floor and that the first floor is in occupation of the plaintiff and that neither the defendant No. 1 nor his predecessor-in-interest viz. Josadalal and his widow Milan Bala took any consent from the plaintiff before running the workshop with two machines in the tenanted rooms. It is also an undisputed fact that the defendant No. 1 did not take any permission under Section 436 of the Act from the Corporation. Mr. Das has submitted that Section 436 of the Act is not applicable in this case because the workshop with the machines was established not by the defendant No. 1 but by Jasodalal. There is nothing in evidence to show that Jasodalal or his widow Milan Bala ever took any permission from the Corporation under Section 436. So it is clear that the workshop with the machines was established without any permission under Section 436 of the Act and its establishment is being continued without such permission even by the defendant No. 1. The learned Judge, therefore, rightly found that the defendant No. 1 has been running the workshop with the machines without the valid authority under Section 436 of the Act.
12. It is also an undisputed fact, that neither the defendant No. 1 nor Milan Bala nor Jasodalal obtained any licence under Section 437 of the Act for running the workshop with the machines in the suit premises. Defendant No. 1 has submitted in his evidence that he and his predecessor-in-interest was sentenced to fine for having no licence under Section 437 of the Act. Both Sections 436 and 437 of the Act bar a person to establish and run a Workshop with machines in the premises without the permission and licence as required respectively under the aforesaid provisions.
13. The defendant No. 1 has admitted in his deposition that the workshop which was known as 'Milan Metal Industries' was named as 'Basak Metal Industries' in 1975, when the defendant No. 1 took the professional licence from the Corporation in that name. Exhibit D shows that the defendant No. 1 obtained such licence also for the year 1978-79 under Section 218 of the Act. It cannot be argued that the obtaining of professional licence under Section 218 of the Act will dispense with the requirement of the permission and licence under Sections 436 and 437 respectively of the Act. The proviso to Section 218 of the Act clearly lays down that grant of such licence under Section 218 shall not be deemed to affect the liability of the licencee to take out a licence under any other section of the Act.
14. The present suit for the relief in the form of declaration and injunction, as already mentioned, is a suit of civil nature and accordingly the suit is maintainable and it has already been held by us so. The learned Judge, therefore, has rightly held that the plaintiff is entitled to get the declaration that the defendant No. 1 has no right or authority to run the workshop with the machines in the suit premises as the defendant No. 1 has not obtained the consent of the plaintiff and the permission and licence from the Corporation of Calcutta under Sections 436 and 437 of the Act respectively. On that ground alone the plaintiff is entitled to get the injunction also, and accordingly the learned Judge did not commit any mistake when he made the declaration as prayed for by the plaintiff and when he granted the injunction restraining the defendant No. 1 from running the workshop with the machines except in accordance with the terms of the valid authority or licence from the Corporation of Calcutta.
15. It is true that the learned Trial Court allowed the abovementioned relief in the suit not only on the ground of the absence of valid authority and licence but also on the ground of nuisance caused by noise and vibration due to the running of the machines with 220 voltage motors. 'Nuisance' as defined in the Winfield's Text Book of the Law of Tort is the unlawful interference with a person's use or enjoyment of land or of some right over it or in connection with it. The land includes the house or the building attached to it. While deciding on the alleged actionable nuisance as in the present case the Court must consider if the defendant is using the property reasonably or not. While deciding the reasonableness the court will consider one or more facts viz. (1) the locality (2) duration (3) hypersensibility on the part of the plaintiff and (4) any spiteful and malicious motive on the part of the defendant.
In a suit for injunction for any actionable nuisance, the plaintiff is required to prove the injury or immediate threat of injury to the person or property of the plaintiff. Nuisance from sound or noise caused by the running of machines to become actionable nuisance depends upon the feature and circumstances of the locality. The above principle of law has been discussed in (1969) 73 Cal WN 32 Kanak Kr. & Ashok Kr. v. Corporation of Calcutta, and also in S. Ramaswamy Iyer's Law of Tort, 6th Edition page 176, as referred to us by Mr. Das. The said principle of law has also been discussed in (Niader Mal v. Ugar Sain Jain) and also in the Halsbury's Laws of England, Second Edition, as referred to us by Mr. Mukherjee.
16. In the instant suit the oral evidence as adduced by both parties and the . Commissioner's report (ext. B) have proved that the said premises is situated in the mixed locality having factory, workshop and residential houses. It has been found that near the suit premises itself there are other workshops with machines run by more H.P. Motor. The members of the residential houses of that locality, therefore, appear to be accustomed to live with some sort of sound and noise because of the running of the machines. Mere personal discomfort to the members of the family of the plaintiff by the noise of the machines in the ground floor of the suit premises will not be the actionable nuisance unless the plaintiff succeeds in proving that such noise has caused injury to the members of the family of the plaintiff either in his health, personal comfort or mode of living.
17. The plaintiff has tried to establish in evidence that the health of his wife who is a heart patient, suffers injury because of the noise emanating from the defendant No. 1's workshop with machines and that his daughters study is hampered because of such noise. No scientific evidence has been adduced from any sound or noise expert over the impact of the sound of machines upon an ordinary men in that locality. No doctor has been examined to give any expert opinion about the impact of noise or sound of the machines upon the health of the wife of the plaintiff. The wife of the plaintiff herself has not come to say on oath to what extent her health suffers from the noise and sound because of the machines. The reports of the Engineer Commissioners and the Advocate Commissioner appointed by this Court, who are not sound experts and who have not made any scientific test about the sound in the prevailing circumstances of the locality cannot be the basis for coming to a conclusive decision about the nuisance from the sound or noise because of the machines. Such being the position, we are not inclined to uphold the finding of the learned Judge with regard to nuisancf from sound or noise of the machines run by the defendant No. 1 in the suit premises and we keep this question open to be considered by the available expert at the disposal of the Corporation of Calcutta before granting the permission and licence under Sections 436 and 437 of the Act to the defendant as and when such occasion arises.
18. As regards nuisance from vibration because of the running of the machines one weighing about 80 Kgs. and another about 70 Kgs. in the suit premises, three Engineer witnesses have given their evidence and submitted the reports. P.W. 5, Rama Nath Bose (Engineer) who submitted his report. (ext. 2) at the instance of the plaintiff has stated in his report that he experienced a lot of vibration from the first floor of the premises when the machines of the defendant No. 1 were operating in the ground floor and has opined that if the building be subjected to such continuous vibration by the working of the machines, the safety and stability of the building will be endangered in the near future. D.W. 2, Samar Banerjee (Engineer) who submitted his report (ext. B) at the instance of the defendant No. 1 has not stated anything about the impact of the vibration of the machines with 1420 r.p.m. upon the building itself which is admittedly an old building although much has been said in his report about the impact of sound caused by the machines. P.W. 7 Biren Mukherjee (Engineer) appointed by the court as the Engineer Commissioner submitted his report (ext. 4). It appears therefrom that the building with lime morter, lime plaster, lime concrete roof slab over wooden beams and borgas is more than 60 years old and that its life is about 80 years. P.W. 7 has stated in his report that a light tremour was felt when the machines were running and he has opined that little tremour the machines produced in the ground walls will slowly cause damage to the building structure in the long run and there may be sinkage in the foundation. He found some marks of cracks in the wall foundation. One Advocate Commissioner appointed by this Court in this appeal in connection with an application for stay of operation of the judgment and decree has also submitted his report stating the intensity of the vibration caused by the machines by applying test with glass of water and coin.
19. The learned Trial Judge placing reliance on the report and evidence of P.W. 7, Engineer Biren Mukherjee, appointed by the Court, has arrived at the finding that the vibrations caused by the machines hold out potential threat and damage to the building. We have given due consideration to the reports of all Engineers and specially to the report of P.W. 7 Engineer Commissioner appointed by the Court and the report of the Advocate Commissioner appointed by this Court. Keeping in view the age and condition of the building, the weight of the machines and their rotation speed per minute there may be justification for the learned trial Judge to accept the opinion of P.W. 7 that the vibration daily caused by the said machines for more than 8 hours inside the rooms of the suit premises may be a potential threat to the life of the building itself, but we are inclined to keep this question also open to be considered by the available expert at the disposal of the Corporation of Calcutta before granting the permission and licence under Sections 436 and 437 of the Act respectively if and when such occasion arises. As regards the submission of Mr. Mukherjee that under the relevant provisions of the Code of Civil Procedure his clients can challenge the decree so far as it relates to the granting of conditional injunction even without filing cross-objection we have looked into the decision in as relied on by Mr. Mukherjee. It appears that the said decision was made applicable in connection with the challenge to a finding in the judgment, but not in connection with the challenge of the decree itself. In the said decision it was no doubt held that a respondent can challenge an adverse finding without filing any appeal or cross-objection. But in the instant case Mr. Mukherjee wants to challenge the part of the decree itself without filing the cross-objection. So we find that the decision as relied on by Mr. Mukherjee is not applicable in the facts and circumstances of the present case. Further this question also has lost importance when we have kept open the question of nuisance from sound and vibration.
20. In the facts and circumstances as discussed above, we dismiss the appeal without any cost and confirm the judgment and decree in the light of the aforesaid observations subject to the following modification. It is declared that the defendant No. 1 has no right or authority to run the workshop with the machines in question in the suit premises without the valid authority or licence from the Corporation of Calcutta and the defendant No. 1 be restrained from running the said workshop with the machines except in accordance with the terms or valid authority and licence from the Corporation of Calcutta on due consideration of the question of the impact of the sound and vibration upon the person and property of the plaintiff and to that effect the question of nuisance from noise and vibration is left open for due consideration of the Corporation of Calcutta as and when such occasion arises.
21. The money deposited by the plaintiff-respondent in terms of this Court's order dated 11-12-81 be refunded to him in view of the disposal of the matter.
22. The prayer for stay of operation of this order as made is refused.
Roy, J.
I agree.