Bombay High Court
Amarchand Harakchand Kaswa vs Ramanlal Shantilal Porwal And Ors. on 12 January, 1981
JUDGMENT R.A. Jahagirdar, J.
1. One Shantilal Hemchand Porwal was the owner of the building bearing City Survey No. 368 and situated at Guruwar Peth, Pune. The petitioner in this petition is the tenant of a room on the ground floor of the said building. After determining the tenancy of the petitioner the said Shantilal Porwal filed a suit, being Civil Suit No. 2959 of 1972, against the petitioner for possession of the room, hereinafter referred to as "the suit premises", on the ground that the petitioner was guilty of a conduct which was a nuisance and/or annoyance to the adjoining occupiers, as mentioned in section 13(1)(c) of the Bombay Rents Hotel and Lodging House Rates Control Act, hereinafter referred to as "the Bombay Rent Act." Though originally in the suit a ground was also urged for possession on the ground that the petitioner was in arrears of rent, that ground was rightly given up because after the notice issued under section 12(2) of the Bombay Rent Act the petitioner had sent the amount by money order which was refused by the said Shantilal. During the pendency of the suit Shantilal died and his heirs and legal representatives were brought on record and they are respondents Nos. 1 to 5 in this petition. They will hereinafter be referred to as "the respondents". Respondent No. 6 is a formal party, he being the Judge of the appellate Court below.
2. What is apparently a finding of fact is challenged in this petition. It is, therefore, necessary for me to narrate briefly what exactly was alleged and what exactly has been held proved by the courts below. The case for annoyance and nuisance was based upon the following three allegations :---
i) That the petitioner was keeping along with the other tenants bicycles in the passage, thus causing obstruction to the other tenants;
ii) That the petitioner and/or the other tenants have kept drums also causing obstruction to the other tenants; and
iii) That the petitioner and the other tenants have been throwing rubbish in a tank (known in Marathi as "Houd").
3. In support of their case the respondents examined Kiran, who is respondent No. 2 before me, and one tenant who was staying on the first floor of the building. He is Bhikoba Dhamanskar. Both the Courts below have come to the conclusion that the tenants keep bicycles in the passage, that they also take water from the drums which are kept near the sink and that they also throw rubbish in the tank. The question to which the two Courts below had to address themselves was whether by these acts the petitioner has caused nuisance or annoyance in the legal sense. What constitutes nuisance has not been defined either in the Bombay Rent Act or in any other Act. In Walter v. Salfe, Sir Lancelot Knight Bruce, V.C., has attempted a definition which may be found workable in the following terms :
"...both on principle and authority the important point next for decision may properly be thus put : Ought this inconvenience to be considered in fact more than fanciful, more than one of delicacy or fastidiousness as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living but according to plain and sober and simple notions among the English people ?"
(Quoted by Andhyarujina in his Law of Rent Control at page 657) As has also been pointed out by Justice Beaman in Bai Bhicaiji v. Perojshaw Jivanji Kerawalla, XVII Bom.L.R. 1040, a legal nuisance is rather an evasive, shifting and intangible thing hard to be pinned down by a verbal definition. It must be always be conditioned by time, place and circumstances. It has been further pointed out by Justice Beaman that in estimating a nuisance complained of, the Court must have regard to the station in life of the plaintiff, and to the locality and the nature of the nuisance complained of. In the absence of statutory provisions, no general considerations of mere policy, or abstract public rights, can be allowed to prevail against what the law recognises and always has recognised as the legal rights of the individual. Again, there are many degrees of nuisances, those which (1) endanger life; (2) endanger health; and (3) diminish the comforts of the plaintiff.
4. Despite the fact that the two Courts below have given what apparently is a finding of fact, I am constrained to say that this finding is not one of nuisance properly understood in the legal sense. It may be stated at this stage that the house in which the suit premises are situated consists of two parties. On the rear side the respondents reside while on the front side the petitioner and the other tenants stay. The passage in which obstruction is said to have been caused is not the one which is being used by the respondents or the landlords. In support of their case, as I have already mentioned above, the respondents examined one witness only and he is Bhikoba Dhamanskar whose entire evidence in the examination-in-chief can be reproduced :
"I know the parties in the suit. I am a tenant in part of the building. The cycles seen in the photographs belong to the tenant of the ground floor. Defendant's cycle is in the photograph. The tank in the photo is used to throw the dirt. The occupant of the room the defendant. The drums seen in photo No. 2 are owned by tenant including the defendant. The cycles in photo 2 belong to the defendant, and other tenants. I am troubled because of the defendant and other tenants. I am troubled because it is difficult to use the passage. He abuses the owners and make application against them."
I am unable to see how even if every word of what this witness has stated is accepted it can amount to nuisance in law or in fact. The premises are situated in Pune and judicial notice of the fact can be taken that a common mode of transport in Pune city is the bicycle. What has been mentioned by this tenant is that because of the keeping of the bicycles he finds is difficult to use the passage and he is troubled. In my opinion, this tenant is obliging the landlords by deposing to his extra-sensitiveness and the alleged difficulty experienced by him due to the keeping of the bicycles in the passage.
5. In the cross-examination he has admitted that all the bicycles are kept on the ground floor for the last 20 to 25 years. There is also evidence to show that there are only three bicycles. Similarly Khan, examined on behalf of the respondents, has mentioned that there are only three tenants who have bicycles and all the three from the beginning which means for the last 20 or 25 year as mentioned by Dhamanskar. The courts below have totally failed to apply their minds to the question as to whether suddenly in the year 1972 keeping of the bicycles, which was going on for the list 20 to 25 years, became a nuisance in a city like Pune where, as I have already mentioned, a common mode of transport is the bicycle. Moreover mere difficulty or inconvenience in using the passage experienced by one tenant cannot be held to be nuisance and/or annoyance within the meaning of section 13(1)(c) of the Bombay Rent Act.
6. I have with the assistance of the learned Advocates appearing for both the parties tried to find out whether there is any evidence to show that drums which are kept in the passage near the sink in which a common tap is situated belong to the tenants and in particular to the petitioner in this case. There is no evidence at all to who that the drums belong to the petitioner. It is undoubtedly true that there is evidence to show that the petitioner and other tenants take water from the drums which are kept near the sink (Mori) which is meant for all the tenants. If there is no water supply through the tap through out the day one does not see how a tenant can be blamed if he takes water from the drums which are kept near the sink in which there is a water tap. This is an amenity which a tenant is entitled to have and I cannot imagine how a landlord can make a grievance of the same, particularly the landlord in this case who says that he has mentally suffered because the petitioner has applied to the Corporation for a new tap and latrine.
7. The third allegations on which the case for nuisance is sought to be built up is the throwing of rubbish in a tank. I though that if the tenants are throwing dirt in a tank which admittedly has not used for storing water for the twenty years past, the tenants should be complemented for the same because they are not throwing the dirt all over the place. That the tank is not in use for storing water has been expressly admitted by Dhamanskar. Similarly Kiran also has admitted that the tank is not in use for many years. The courts below have shown unwarranted respect for the sensitiveness displayed by the landlords and their obliging tenant without appreciating the evidence as they ought to have done in the light of the conditions prevailing in a city like Pune. Nuisance or annoyance in the legal sense, in my opinion has not been established at all even if every word that has been said by the witnesses examined on behalf of the respondents is accepted. The explanation for the provocation for this suit is partly to be found in the grievance of the landlords that the tenants have been making applications to the Municipal Corporation for additional facilities as mentioned by Kiran himself in his examination-in-chief. Mention has also been made regarding this application to the Corporation in the notice issued on 1st of August, 1972 before the filing of the suit. Therein it has been mentioned that the petitioner had only two members in his family when the suit premises were taken on rent and the number has now increased. In the suit premises, says the notice, there are enough facilities of latrines for all the tenants. Despite this the petitioner along with the other tenants has made an application to the Municipal Corporation for additional latrine and water tap. This conduct of the petitioner, it is alleged is a nuisance.
8. In the result, this petition must be allowed. The decree for possession passed by the learned Judge of the Small Cause Court at Pune in Civil Suit No. 2959 of 1972 and confirmed by the learned Extra Assistant Judge of Pune in Civil Appeal No. 644 of 1975 is set aside. The decree for arrears of rent passed by the trial Judge is, however, maintained.
The respondents shall pay the costs of the petitioner in all the courts.