George, Philip and Others vs Subbammal and Others

Sankaran, J.—This appeal arises out of an action for abetment of nuisance. Plaintiffs are the owners of a harden land having an extent of over 81/2 acres and comprised in Sy No. 5997/A-B in Thrikkovilvattom Pakuthy of the Qullon Taluk. They have put up a building in this property and are residing therein ever since the year 1117. To the north of this property there is another compound 1 acre and 55 cents in extent and comprised in Sy. No. 5996/A. The 1st Defendant purchased this property and constructed a cashew nut factory in that plot. The work in the factory commenced in the year 1120.

The complaint of the Plaintiffs is that this factory is a source of nuisance to the personal comforts of those residing in the Plaintiffs'' property and also to the plantations in that compound. It is alleged that the smoke emanating from the factory at the time of roasting of cashew nuts spreads over the Plaintiffs'' compound and is injuriously affecting the cultivation in that compound. It is also stated that the smoke is having an injurious effect on the inmates of the Plaintiffs'' house.

Still another allegation is that no scavenging is done to the latrine attached to the factory and that the foul odour emanating from the latrine is an additional source of discomfort to the Plaintiffs and other inmates of their house. The extent of the damages already sustained by the Plaintiffs was estimated at Rs. 500/- and the suit is for recovery of this amount from Defendants 2 to 5 who are legal representatives of the 1st Defendant and also from the assets left by him. A permanent injunction is also prayed for to restrain the Defendants from running the cashew nut factory in the Plot comprised in Sy. No. 5908/A.

The Defendants resisted the suit and contended that the smoke produced at the time of roasting the cashew nuts and let out through the chimney fitted on to the roasting house in the factory, is not causing any injury to anybody residing in the neighbourhood of the factory or to the trees and other plantations in the adjoining compound. As for the condition of the latrine in the factory, they maintained that it is being regularly cleaned and kept under good sanitary condition and that there is no basis for the complaint that the latrine is a source of nuisance to the Plaintiffs. On a consideration of the evidence adduced by the parties the lower Court came to the conclusion that the grievance of the Plaintiffs is more imaginary than real and that no case of nuisance requiring to be relieved against by the issue of an order of injunction has been made out. Accordingly the suit was dismissed with costs. The Plaintiffs have come up in appeal.

Every little discomfort or inconvenience cannot be brought on to the category of action-able nuisance. Consistent with the circumstances under which a person is living, he may have to put up with a certain amount of inevitable annoyance or inconvenience. But if such inconvenience or annoyance exceeds all reasonable limits, then the same would amount to actionable nuisance. The question as to what would be a reasonable limit in a given case, will have to be determined on a consideration as to whether there has been a material interference with the ordinary comfort and convenience of life under normal circumstances.

Due importance has also to be given to a consideration of the aspect as to whether the undertaking, which is the source of the nuisance, is a new or extraordinary one or is only one of common occurrence in that particular locality. In order to constitute an act of nuisance, there must be interference with the use or enjoyment of land, or of some right over or in connection with it, causing damage to the Plaintiff. It is worthwhile to quote here a passage from the Law of Tort by

Winfield dealing with the question of such interference. The passage runs as follows:

Interference.-The forms of this are innumerable. Noise, smells, pollution of air or water, are the most usual instances, but there are many others. The two main heads are injury to property and interference with personal comfort. The escape of fumes, which kill vegetation and cattle is an illustration of the first, and excessive tolling of church bells of the second. But whatever be the type, it does not follow that any harm constitutes a nuisance. The whole law on the subject really represents a balancing of conflicting interests. Some noise, some smell, some vibration, everyone must endure in any modern town, otherwise modern life there would be impossible.

It is repeatedly said in nuisance cases that the rule is sic utere tuo ut alienum non laedas, but the maxim is not very informative. If it means that no man is ever allowed to use his property so as to injure another, it is palpably false. If it means that a man in using his property may injure his neighbour but not if he docs so unlawfully, it is not worth stating. In fact, the law repeatedly recognises that a man'' may use his own so as to injure another without committing a nuisance. It is only if such use is unreasonable that it becomes unlawful. The homely phrases, "Give and take", "Live and let live", are much nearer the truth than the Latin maxim.

The question as to the circumstances under which an act complained of would amount to an actionable nuisance, was considered by the House of Lords in Colls v. Home and Colonial Stores, Ltd. (1904) AC 179 (A), and the test to be applied in such cases was explained by the Earl of Halsbury L.C. in the following terms:

Light, like air, is the common property of all, or to speak more accurately, it is the common right of all to enjoy, it, but it is the exclusive property of none. If the same proposit on against which I am protesting could be maintained in respect of air, the progressive building of any town would be impossible........ The test of the right is I think, whether the obstruction complained of is a nuisance; and, as it appears to me, the value of the test makes the amount of right acquired depend upon the surroundings and circumstances of light coming from other sources, as well as the question of the proximity of the premises complained of.

What may be called the uncertainty of the test may also be described as its elasticity. A dweller in towns cannot expect to have as pure air, as free from smoke, smell, and noise, as if he lived in the country, and distant from other dwellings; and yet an excess, of smoke, smell, and noise may give a cause of action, but in each of such cases it becomes a question of degree, and the question is in each case whether it amounts to a nuisance which will give a right of action.

The discomfort and the injury complained of by the Plaintiffs on account of the proximity of the Defendant''s cashew nut, factory, have to be considered in the light of the above-mentioned principles. It has come out from the evidence of the witnesses examined on the Plaintiff''s side and also on the Defendant''s side, that there are a large number of cashew nut factories spread over the different villages in the Quilon Taluk and that some of these factories are situated even in congested areas. D.W. 2 is the managing partner of one such factory which is not far away from the factory run by the Defendants in this case.

D.W. 2 has stated that all around his factory there are respectable neighbours living with their families within a distance of 60 feet from the factory, and that such neighbours have not raised any complaint that the factory is a source of nuisance to them. He has also stated that the cashew nut trees and other plantations in the factory compound and in the neighbouring compounds are thriving very well and that the smoke emanating from the factory at the time of roasting the cashew nuts has not caused any injury to these plantations.

P.W. 2 who is related to the Plaintiffs, has also made mention of a few cashew nut factories with residential houses in their close neighbourhood. Even this witness has not been able to state that such neighbours had any complaint of any serious discomfort being felt by them on account of the proximity of the factory. P.W. 3 was the Health Officer at Quilon when he gave deposition as a witness. He has stated that there were about 150 cashew nut factories within his jurisdiction. The evidence of this witness does not support the Plaintiffs'' case that the smoke emanating from the factory at the time of roasting the cashew nuts is prejudicial to the health of the inmates of the Plaintiffs'' house.

All that P.W. 3 has stated is that those who continuously inhale cashew nut smoke, may get lung diseases. But at the same time he has also stated that the possibility of such continuous inhaling of cashew nut smoke can arise only in the case of labourers working in the factory and that the inmates of the neighbouring houses will have no opportunity to inhale such smoke continuously. He has further qualified that statement by pointing out that since the smoke goes up through the factory chimney, there is no risk of the neighbours inhaling such smoke.

It has also to be remembered that the factory is conducted in accordance with the rules framed under the Factories Act. If the smoke from the factory was causing any material injury to the health of the plaintiffs or was causing any serious discomfort to them, they would have complained about the same to the Factory Inspector. Excepting the vague allegation made in the plaint that the smoke is causing injury to the Plaintiffs, there is no evidence to show that any of the inmates of the Plaintiffs'' house had really suffered in health on account of such smoke or that any complaint to that effect had ever been made by the Plaintiffs to the Factory Inspector.

It is pointed out on behalf of the Plaintiff-Appellants that the Commission Report Ex. A (1) pre-pared by P.W. 6 shows that the factory chimney has only a height of 25 feet as against the 30 feet prescribed by the rules under the Factory Act. But it is not the case of the Plaintiffs that they are subjected to any special inconvenience or discomfort on account of the shortage of five feet in the height of the chimney. If the chimney is not fitted up in accordance with the Factory rules, the same could be easily got rectified by drawing the attention of the Factory Inspector to the violation of the rule.

Since the smoke goes high into the air through the chimney, there is very little chance of such smoke concentrating at any particular spot in the neighbouring area. That is obviously the reason why P.W. 3 has stated that such smoke could not cause any injury to the neighbours. This version is consistent with the evidence of D.W. 2 that there are respectable

neighbours getting on comfortably in their own houses situated within a distance of 60 feet from his own factory. The house of the Plaintiffs in the present suit is at a distance of 241 feet from the Defendants'' factory.

This has been so stated by P.W. 6 who prepared the mahazar, Ex. A and the report, Ex. A (1) regarding the condition of the Defendants'' factory and also of the neighbouring houses. Subsequent to the commencement of this factory, the Plaintiffs themselves have put up shops nearer to the factory than their own house. This fact is sworn to by P.W. 2 and, it is a clear indication of the fact that the Plaintiffs and those trading in such shops did not feel that carrying on business so close to the factory will be injurious to their health..

Viewed in the light of all these facts and circumstances, it is clear that there is not much substance in the Plaintiffs'' complaint that the smoke emanating from the factory is causing serious injury and material discomfort to the Plaintiffs and the other inmates of their house, so as to constitute actionable nuisance.

The complaint about the insanitary condition of the latrine in the factory compound, has also not been proved to be true. P.W. 6 who had examined the factory in connection with the preparation of the mahazar and report, Exs. A and A (1). has stated that he noticed that the latrine was kept clean. It has come out in evidence that the factory is periodically inspected by the Factory Inspector. It is, therefore, unlikely that scavenging work in the latrine would be left unattended to.

Lastly, there is the complaint that damage is being sustained by the plantations in the Plaintiffs compound as a result of the cashew nut smoke emanating from the factory. Here, again, the evidence given by P.W. 4, the Agricultural Inspector, has not been favourable to the Plaintiffs. He has only sworn in general terms that the cashew nut smoke will injuriously affect plants and trees if there is excessive concentration of smoke. He has also stated that he had never been to any cashew nut factory and that he had no occasion to examine the effect of cashew nut smoke on the trees and plants in the neighbouring compound.

He has further admitted that he has never received any complaint from persons residing in the neighbourhood of cashew nut factories that the cashew nut smoke is causing any injury to cocoanut trees, plantains or other vegetations. Since the smoke is let out high into the air through the factory chimney, the possibility of such smoke concentrating on any particular spot as mentioned by P.W. 4, is very remote. P.W. 6 has given direct evidence about the condition of the trees in the Defendants'' factory compound and also of the trees in the Plaintiffs'' compound.

He has stated that he noticed the cocoanut trees in the factory compound were giving better yield than the cocoanut trees in the neighbouring compounds. If the smoke was injurious to these trees the trees in the factory compound would have suffered greater injury than the trees in the neighbouring compounds. But the fact as noticed by P.W. 6 is proof positive that the smoke emanating from the factory has not been causing any injury to these trees.

Thus the complaint that the factory is a source of nuisance to the Plaintiffs'' property stands disproved. The Plaintiffs'' complaint of nuisance has failed on all the different grounds urged in the plaint. It follows, therefore, that there is no case or the grant of an injunction against the Defendants to stop the running of their factory on the ground that it is a source of nuisance to the Plaintiffs. Their claim for damages is equally unsustainable. The lower Court''s decree dismissing the suit, has only to be confirmed.

In the result this appeal is dismissed with costs.