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Title : Datta Mal, Chiranji Lal v L.
Ladli Prasad and Another
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Datta Mal, Chiranji Lal v L. Ladli Prasad and Another

Allahabad High Court
MYSORE
23 December 1959
Second Appeal No. 348 of 1952, Against Decree of Dist. J.,
Saharanpur
The Order of the Court was as follows :
(1) This is a defendant's appeal arising out of a suit for the
issue of permanent injunction restraining the defendant
from maintaining a flour mill in premises No. 12, Library
Bazar Mussoorie and restraining defendant No. 2 from
granting a flour mill licence to defendant No. 1 to run a
flour mill in the said premises.
(2) The plaintiff is the owner of premises No. 11 Library
Bazar, Mussoorie which is a three storeyed building. The
upper two storeys are used for residential purposes and the
ground floor is used as a shop. It is stated that in 1945 the
appellant-defendant established an electric flour mill in
premises No. 12 Library Bazar which is adjacent to the
plaintiff's house. According to the plaintiff the running of
this flour mill amounts to a private nuisance.
It causes a lot of noise and vibration so that the plaintiff
and the members of his family find it difficult to reside in
their house, and it causes great inconvenience and
discomfort to them. As the plaintiff's efforts to seek the
intervention of the local authorities were unsuccessful he
had to bring the suit which has given rise to the present
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appeal. The City Board, Mussoorie was impleaded as

defendant No. 2, but it did not contest the suit. On behalf of
defendant No. 1, the present appellnat, certain grounds
were taken in defence.
It was urged that the suit was barred by S. 326 of the
Municipalities Act; that the running of the mill did not
amount to a nuisance; that the suit was barred by estoppel
and acquiescence, and that the existence of the mill was
essential for the convenience of the residents of the locality
and that no other suitable accommodation in the vicinity
was available where electric power connection could be
had for installing a flour mill.
A plea relating to under-valuation of the suit and
insufficiency of the court-fee was also taken but was not
pressed. The learned Civil Judge framed the necessary
issues and found that S. 326 of the Municipalities Act was
no bar to the institution of the present suit specially as the
bar was not pleaded by the City Board, Mussoorie itself.
The issue relating to estoppel and acquiescence and other
issues were decided in favour of the plaintiff. The main
dispute at the trial appears to have been as to whether the
running of the mill amounted to a nuisance.
(3) It appears that initially it was stated on the plaintiff's
behalf that the nuisance alleged was both public and
private. The plaintiff appears to have given up the plea of
public nuisance. A private nuisance is a civil wrong but a
public nuisance is a criminal offence, an act not warranted
by law or an omission to discharge legal duty which act or
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omission, according to Stephen's Digest of Criminal Law

"obstructs or causes inconvenience or damage to the public
in the exercise of rights common to all His Majesty's
subjects."
Public and private nuisance are not in reality two species of
the same genus at all, and the stand relating to public
nuisance was thus rightly given up at the early stage of the
trial. After considering the evidence produced by the
parties the learned Civil Judge held that the running of the
mill
"produced a very unpleasant noise which causes great
inconvenience to the plaintiff and the members of his
family and that it generates vibrations on account of which
the walls, floor, doors, windows, furniture, utensils etc. in
the plaintiffs house appear to be shaking and rattling."
On these findings the learned Judge held that the mill
caused inconvenience and trouble to the plaintiff and the
residents of his house and the running of the mill amounted
to a nuisance. In recording his findings the learned Judge
kept carefully before him the proper legal principles which
should guide a court in recording findings like this. He
considered the observations made in several judicial
pronouncements and took the view that the plaintiffs suit
was well founded. He therefore decreed the suit. On appeal
by the defendant the decision was affirmed.
(4) Learned counsel for the appellant has raised three
contentions. The first was that in an action for private
nuisance, substantial damage or injury must be proved,
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which has not been done in the present case. In this

connection he also urged that no evidence of injury to the
house had been produced and no finding had been recorded
relating to substantial damage. The second contention set
out was that the houses of the parties were situate in the
Library Bazar, a busy market place in Mussorie, and the
standard of physical comfort and quietness demanded by
the plaintiff was unreasonably high having regard to the
locality where the plaintiff resided. The third was that Art.
19(1)(g) of the Constitution was a bar to the plaintiffs suit.
(5) The first two contentions may be conveniently dealt
with together. Every owner of the property is entitled to use
it beneficially subject to such limitations as may be
incidental to similar and beneficial enjoyment of other
owners of their properties. The plaintiff in the instant case
is therefore entitled to reside comfortably in his own house,
and if the defendant by running his flour mill produces
such noise and vibrations as to cause substantial discomfort
to the plaintiff and does not allow him to reside
comfortably in his own house the defendant's action
amounts to a nuisance.
It is true, as contained by learned counsel for the appellant,
that the standard of comfort to which the plaintiff is entitled
should be a reasonable standard and the degree of comfort
should be such as might be expected by an average person.
'When an action of nuisance is based on mere discomfort or
inconvenience, ' says Salmond in his Law of Torts 'this
discomfort or inconvenience must be substantial, that is to
say, it must not be merely trifling or fanciful or such as an
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average and reasonable man is content to submit to'. A well

known test was laid down by Knight-Bruce V.-C. in Walter
v. Selfe, (1851) 20 LJ Ch 433:
"Ought this inconvenience to be considered in fact as more
than fanciful, more than one of mere 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?"
(6) The standard of comfortable living must vary
necessarily from place to place and it is not possible to lay
down any universal standard that may be available or
applicable at all times and at all places. A person residing in
a quiet zone in a civil station cannot insist on having the
same freedom from noise if he chooses to go and reside in
a busy part of Calcutta. The immunity from discomfort or
inconvenience must therefore be dependent considerably
on the place where a person resides.
But in the instant case, which comes from Mussoorie. it
would not be unreasonable to accept the plaintiffs
contention that he is entitled to such freedom from loud or
uncomfortable noise as might enable him to live peacefully
in his house. It was contended by learned counsel for the
appellant that the plaintiffs house is situate in the
Library Bazar in Mussoorie and that there is evidence to
show that this part of Mussoorie is fairly busy, there are a
large number of shops and there is a rickshaw stand where
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a number of coolies sit and chat and vendors and hawkers

produce all sorts of noise.
But the noise produced by such business, and collection of
men during business hours, cannot make the place so noisy
as to deprive the plaintiff of rest and peace in his house.
The learned Civil Judge who tried the case considered
several judicial pronouncements where tests to be applied
in such cases were laid down and after considering the
evidence produced by the parties he took the view that the
noise produced by the defendant's flour-mill did amount to
a nuisance. Discussing the evidence the learned Judge
observed:
"The oral evidence produced by the parties thus leaves no
doubt in one's mind that the mill while it is working creates
a very unpleasant noise which causes great inconvenience
to the plaintiff and the members of his family. It also
proves that when the mill is working it generates vibrations
on account of which the walls, floor, doors, windows,
furniture utensils etc. in the plaintiffs house all appear to be
shaking and rattling." It is obvious that the noise and
vibration created by the mill must be proving very
inconvenient and troublesome to the plaintiff and the other
residents of his house. The tests laid down in some cases
were considered and applied and the learned Judge found
that the running flour mill amounted to a private nuisance
which causes serious inconvenience and discomfort to the
plaintiff. On this finding the suit was decreed.
(7) On appeal the learned District Judge examined the
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evidence again and confirmed the findings.

(8) These findings are based on proper evidence and
learned counsel for the appellant has not been able to show
that in arriving at the conclusions the courts below have
misapplied the law or erred in applying the true tests to
determine whether the running of the defendant's mill
amounted to a nuisance. It is evident that in the locality
there is no other flour mill and that this flour mill has been
newly set up by the defendant. The Courts below have
accepted the evidence that the running of the defendants'
mill causes substantial discomfort to the plaintiff and the
members of his family so that they cannot have the
necessary peace and freedom from noise for following their
normal avocations during the day and cannot have a quiet
rest at night. The constant noise produced by the flour mill
must be very annoying and. as stated by a doctor witness in
the case, it did cause serious discomfort to the plaintiff. I do
not find any justification for taking a different view.
(9) Some valuable pronouncements have been made
relating to nuisance consisting of obstruction to light in
English Law. A very old case Fishmongers' Co. v. East
India Co., (1752) 1 Dick 163 relating to alleged obstruction
to light was decided by Lord Hardwicke. He took the view
that mere alteration or reduction in the light available to the
plaintiff through his windows because of constructions
made by the defendant near the plaintiff's house afforded
no ground for an action. In order to sustain an action the
obstruction must be such as to amount to a nuisance. He
observed:
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"It is not sufficient to say that it will alter the plaintiffs'

rights, for then no vacant piece of ground could be built on
in the city, and here there will be seventeen feet distance
and the law says it must be so near as to be a nuisance."
The same view was taken by L. Granworth in Clarke v.
Clark, (1865) 1 Ch. A. 16. In Colls v. Home and Colonial
Stores Ltd., 1904 AC 179 Halsbury L. C. observed:
"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."
In the same case L. Macnaghten quoting an earlier decision
lays down the test as follows:
"In order to give a right of action, and sustain the issue
there must be a substantial privation of light, sufficient to
render the occupation of the house uncomfortable, and to
prevent the plaintiff from carrying on his accustomed
business (that of a grocer) on the premises as beneficially
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as he had formerly done."

(10) I feel tempted to adopt the reasoning to the instant
case. The sound produced by the defendant's mill should be
such as to render the occupation of the plaintiff's house
uncomfortable and prevent the plaintiff and the members of
his family from using it as a dwelling and from carrying on
their normal avocations in life.
(11) One cannot lose sight of the fact that in decreeing the
suit the Courts have directed the defendant not to use his
house in a manner in which he wanted to use it, that is to
say, by running a flour mill in it. This might appear to be a
curtailment of the defendant's right as an owner. But this
restriction on the defendant's use of his house is obviously
necessary so that the plaintiff may not be driven to such a
position that he cannot live comfortably in his house as he
used to do.
If the defendant can so arrange as to run a flour mill,
perhaps with lesser electric power and in a manner so that
the sound produced does not amount to a nuisance to the
plaintiff and no vibrations are caused to the plaintiff's
house, it is clear, as found by the learned Civil Judge, that
the plaintiff could have no grievance. But in the present
circumstances the running of the defendant's flour mill
amounts to a nuisance which cannot be permitted.
I am unable to accept the contention that it is essential in a
case like this to prove either that the property has been
damaged or that the health of the inhabitants of the
plaintiff's house has been proved to be impaired. It is
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enough that such discomfort is caused to the plaintiff by the

noise and vibrations produced by the mill that the plaintiff
cannot enjoy his residence in a reasonable manner and is
put to substantial inconvenience.
The damage to the property by constant vibrations may be
caused after some time, the injury to the health of the
plaintiff or other members of his family might become
evident after a length of time, but it is not necessary that
the plaintiff should wait till then, for the relief prayed for
by him is a preventive one, and he asks the Court to direct
the defendant not to continue this nuisance. Learned
counsel has also not been able to substantiate his argument
that the standard of physical comfort and quietness required
by the plaintiff was unreasonably high having regard to the
locality where he resided.
As observed by the courts below the noise produced by the
flour mill is much greater, more constant and persistent
than the noise coming from the bazar round about the
plaintiff's house. The plaintiffs house is situated in
Mussoorie, a place where people go for health and comfort,
and the locality is admittedly such where no machinery was
run in such manner as to produce all this noise before the
defendant set up his mill. The view taken, therefore by the
Courts below is correct and the finding that the running of
the defendant's flour mill is a nuisance must be upheld.
(12) Article 19 deals with the fundamental rights assured to
the citizens of India under the Constitution. It declares all
citizens as having the right to freedom of speech and
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expression, to assemble peaceably, to form associations, to

move freely to reside and settle in any part of the country to
acquire and hold and dispose of property and cl. (g) reads
as follows: "(g) to practice any profession or to carry on
any occupation, trade or business." Article 19(6) which is
pressed for consideration by learned counsel is as follows:
"(6) Nothing in sub-cl. (g) of the said clause shall affect the
operation of any existing law in so far as it imposes, or
prevent the State from making any law imposing, in the
interests of the general public, reasonable restriction on the
exercise of the right conferred by the said sub-clause and in
particular nothing in the said sub-clause, shall affect the
operation of any existing law in so far as it relates to, or
prevents the State from making any law relating to
(i) the professional or technical qualifications necessary for
practicing any profession or carrying on any occupation,
trade or business, or
(ii) the carrying on by the State, or by a corporation owned
or controlled by the State, of any trade, business, industry
or service, whether to the exclusion, complete or partial, of
citizens or otherwise."
(13) Learned counsel argued that the only restriction
mentioned in the above quoted provision was to save the
operation of existing law or empower the State to make law
imposing reasonable restrictions in the interest of the
general public. As an action for private nuisance is not
founded on any existing law imposing reasonable
restrictions in the interest of the general public, the existing
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Law of Torts relating to private nuisance is no longer

enforceable in view of the right to carry on trade or
business guaranteed under this Article. Learned counsel
referred to Art. 13(1) which reads as follows :
"(1) All laws in force in the territory of India immediately
before the commencement of this Constitution in so far as
they are inconsistent with the provisions of this Part, shall,
to the extent of such inconsistency, be void."
He urges therefore that the Law of Torts as in force in this
country on the date of the commencement of the
Constitution is void so far it is inconsistent with the
provisions of Art. 19(1)(g). The argument that the Law of
Torts stands abrogated by Art. 19(1)(g) of the Constitution
is indeed ingenious.
(14) Part III of the Constitution enshrines the rights
guaranteed under the Constitution. "Article 12." as
observed by Patanjali Sastri J. in A. K. Gopalan v. State of
Madras, 1950 SCR 88: (AIR 1950 SC 27),
"defines 'the State' as including the Governments and
Legislatures of the Union and the States as well as all local
and other authorities against which the fundamental rights
are enforceable."
This is further indicated unmistakably in Art. 13(2) which
says:
"The State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made
in contravention of this clause shall, to the extent of the
contravention be void."
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It is clear that the Constitution has attempted to define the

rights of the individual as against the State in this Part and
has enacted how far the rights of an individual may be
subordinated to the requirements of the community. These
provisions have nothing to do with the rights of the
individual citizens inter se.
When an individual is guaranteed the right to hold property
he can hold it only subject to the exercise of similar rights
of other citizens in the State. He cannot in the exercise of
this right act in violation of the laws incidental to property
ownership. If the Constitution assures to the citizens of the
country the right to carry on business it obviously means
that the business should be carried on in the manner in
which it can be legally and properly carried on in the State.
Contracts have to be respected and the relevant laws
relating to the conduct of business must be obeyed. These
limitations are inherent in the right itself and it was
obviously unnecessary for the framers of the Constitution
to specify all this when declaring the rights of the citizens
of this country. The right to carry on business must be
construed as meaning the right to carry on business in a
reasonable and legal manner.
In the instant case the defendant is not denied the right of
carrying on his business as such. What is sought is to
prevent him from committing a nuisance which Tie would
do if he is allowed to run his flour mill in such manner as to
produce the objectionable noise and cause the vibrations
which deprive the plaintiff of his right to live in his own
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dwelling house in a peaceful and comfortable manner, as he

had Been doing hitherto. I am unable to accept the
contention that Art. 19 of the Constitution has abrogated
the law of Torts relating to private nuisance.
(15) In the light of the above observations, this appeal fails
and is dismissed with costs.

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