RAM BAJ SINGH VS. BABULAL
AIR 1982 ALL 285
FACTS
Babulal, the defendant installed a brick grinding machine. The plaintiff had a clinic in the adjoining premises. The grievance of the plaintiff-appellant was that the brick-grinding machine was generating dust which polluted the atmosphere and entered the consulting chamber of the plaintiff-appellant and caused physical inconvenience to him and his patients who came to his chamber. It was further stated that the said machine had been set up by the defendant-respondent without any permission or license from the Municipal Board.
The plaintiff-appellant has previously approached two courts but has been denied relief on the grounds that there was no special damage and substantial injury.
PROCEDURAL HISTORY
The Trial Court dismissed the suit of the plaintiff- appellant on the finding that the dust resulting from the machine did not cause any substantial injury either to the plaintiff or to his patients. The trial court also went into the question as to whether the machine belonging to the defendant-respondent caused any actionable nuisance to the plaintiff-appellant and decided that controversy against him.
The Court of Appeal has affirmed the findings recorded by the trial court with a slight modification. Whereas the trial court had rejected the testimony of P.W. 1 Dr. Hari Shankar Prasad, who was Medical Officer of Health at Ghazipur, where the machine in dispute is situate, on the ground that the same is based on hearsay, the lower appellate court has accepted his testimony. Dr. Hari Shankar Prasad had categorically stated that dust which came out from the machine of the defendant respondent entered the chamber of the plaintiff-appellant in large quantity. He further stated that on account of that dust, the clothes of the persons sitting in the chamber of the plaintiff-appellant, became coated with red particles of earth.
CONTENTION
Defendant
He did not deny that the machine was erected by him in April, 1965. He contended that no dust emanated during the process of grinding bricks and there was no question of any pollution being caused in the atmosphere. He further stated that the bricks were moistened before being subjected to grinding process and no dust resulted therefrom. He further stated that his machine did not produce any noise and according to him, the erection and working of the machine did not cause any nuisance—whether public or private. He concluded by saying that the suit had been filed against him only on account of enmity and the same was not legally sustainable.
ISSUE
LEGAL CONCEPTS
Tests relied upon for Actionable Nuisance
No precise or universal formula has been devised to determine the distinction between a trivial consequence of an act or a consequence which can be termed to be of substantial magnitude. The test which has always been found to be useful in distinguishing the two sets of cases is the test of ascertaining the reaction of a reasonable person according to the ordinary usage of mankind living in a particular society in respect of the thing complained of.
Test for substantial injury
In assessing the nature of substantial injury, the test to be applied is again the appraisement-made of the injury by a reasonable person belonging to the society. The expression does not take into account the; susceptibilities of hyper sensitive person or persons attuned to a dainty mode of living. No other meaning can be assigned or has been assigned to the expression “substantial injury.”
Actionable nuisance does not admit of enumeration and any operation which causes injury to health, to property, to comfort, to business or to public moral would be deemed to be a nuisance.
HELD
From the findings recorded by the two Courts below that the plaintiff had succeeded in establishing damage which was particular to himself. It has been held by the court of appeal that dust emanated from the crushing of bricks was a public hazard and was bound to cause injury to the health of the persons. It further held that dust from bricks entered in sufficient quantity into the consulting chamber of the plaintiff so that a thin red coating was visible on the clothes of the patients. In view of these findings it is difficult to comprehend how it could be said that the plaintiff had failed to prove that special damage was not being caused to him on account of the offending brick grinding machine. In view of the fact found by the two courts below concurrently, it was impossible to hold that no substantial injury was being caused to the plaintiff-appellant. Causing of actual damage by the act complained of as a nuisance is besides the point. If actual damage or actual injury were to be the criterion a person will have to wait before the injury becomes palpable or demonstrable before instituting a suit or its abatement. Any act would amount to a private nuisance which can reasonably said to cause injury, discomfort or annoyance to a person.
So the appeal was allowed. The decree passed by the two courts below were set aside. The plaintiff's suit was decreed.
A permanent injunction was issued against the defendant-respondent restraining him from using his brick grinding machine shown by letters Ka, Kha, Ga, Gha in the sketch map given at the foot of the plaint. It was held that the plaintiff-appellant shall be entitled to his costs throughout.