B. Upadhya, J.
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 lience to defendant No. 1 to run a flour mil) in the said premises.
2. The plaintiff is the owner of premises No. 11 Library Bazar, Mussoorie which is a three storied 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 plaintiffs efforts to seek the intervention of the local authorities were unsuccessful he had to bring the suit which has given rise to the present 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 appellant, certain grounds were taken in defence.
It was urged that the suit was barred by Section 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 Section 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 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 plaintiff's 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 plaintiff's 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, 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 Article 19(1)(g) of the Constitution was a bar to the plaintiff's 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 ot 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 average and reasonable man is content to submit to'. A well known test was laid down by Knight-Bruce V.C. in Walter v. Seife, (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 plaintiff's 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 plaintiff's 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 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 plaintiff's 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 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) I 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 plaintiffs 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:
'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. Cranworth 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 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 run-nine 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 bv 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 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 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 Clause (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-clause (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 practising 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 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 Article 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 Article 19(1)(g). The argument that the Law of Torts stands abrogated by Article 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 : 1950CriLJ1383 ,
'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 Article 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.'
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 he 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 dwelling house In a peaceful and comfortable manner, as he had been doing hitherto. I am unable to accept the contention that Article 19 of the Constitution has abrogated the law of Torts relating td private nuisance.
15. In the light of the above observations, this appeal fails and is dismissed with costs.