G.M. Lodha, J.
1. Pali cannot be compared with Paris and Jodhpur with Geneva or Zunic of Switzerland for the concept of cleanliness, sanitation and the consequential negation of it, leading to 'actionable nuisance' is the lively interesting debate, turned into legal arguments in this appeal.
2. And now the traditional facts. The appeal is directed against the judgment of the learned Single Judge of this Court by which the suit of the plaintiff based on 'nuisance' was dismissed and the appeal of the defendant was accepted.
3. The dispute relates to the construction of the shop over the stair case by the defendant, who happens to be the neighbour of the plaintiff appellant. The plaintiff's case is that he has got a shop in the same market and the construction by the defendant has caused discomfort amounting to nuisance to the plaintiff because by the impugned construction an obstruction has been created to the flow of the foul smell which was otherwise passing over the Chabutra of the defendant According to the plaintiff, the lane adjoining to is used for urination by people and where some times human excreta is also passed and cattle also spoil the area, resulting in bad smell and foul winds
4. Earlier it used to pass over the Chabutra of the defendant and now by this construction this foul smell has been diverted towards the plaintiff's shop. In substance, the case of the plaintiff was of 'actionable nuisance' against the defendant by diversion of the foul and bad smell towards the plaintiff's shop, on account of the construction.
5. The litigation started in 1955 when a suit for injunction was filed by the plaintiff for restraining the defendant from putting up the construction. No interim injunction was issued and the construction was completed by the time the suit could be decided. The plaintiff, therefore, amended the plaint and then there was second amendment.
6. The Civil Judge, Pali decreed the suit on 17-9-59 and ordered the demolition of the construction of the defendant at his own costs from the Chabutra and further issued a direction that the defendant should keep the Chabutra open thereafter without any construction. The shop, balcony and the stair case constructed over the Chabutra was ordered to be demolished. The District Judge found that there was no nuisance, and accepted the defendant's appeal and dismissed the plaintiff's suit.
7. The second appeal was accepted by this Court and the case was remanded to the District Judge for determination whether the foul smell caused or added discomfort to the plaintiff.
8. On remand, the District Judge decreed the suit and this led to second appeal by the defendant. This time it was accepted by the impugned judgment by the learned Single Judge. The learned Single Judge found that it was not correct that any actionable nuisance was created.
9. In this appeal, Mr. Balia appearing for the appellant has submitted that the learned Single Judge by the impugned judgment, has travelled beyond the scope of second appeal, by disturbing the finding of fact, which cannot be done Under Section 100 of the CPC According to Mr. Balia there was a concurrent finding of fact that the bad and foul smell adjoining to the building earlier used to pass over the Chabutra of the defendant but by construction of defendant, it has been diverted towards the plaintiff shop creating discomfort for the plaintiff and his customers and visitors.
10. Mr. Balia submitted that whether there was actionable nuisance in existence or not is a pure finding of fact and neither a substantial question of law nor any point of law is involved. In support of his contention Mr. Balia placed reliance on decisions of Mangu and Anr. v. Lachhiram AIR 1925 Lah 424 Anand Ram v. President, Municipal Committee, Nagpur AIR 1926 Nagpur 50, Bahalsingh and Ors. v. Mohd. Yusuf AIR 1929 All 504, Jugal Kishore v. Ramsaran Das AIR 1943 Lah. 306, Thangaval Nadur v. Sudalaimala Nadar : AIR1962Mad431 , Sree Meenackskhi Mills Ltd. Madurai v. CIT, Madurai 0044/1956 : 1SCR691 and State of Gujarat v. Jaganbhai Bhagwan Bhai : 1966CriLJ1227 , Mr. Balia pointed out that no interference can be made on questions of fact and adequacy of evidence cannot be looked into in second appeal. According to Mr. Balia, the learned Single Judge committed a serious error of jurisdiction in interfering against the finding of fact.
11. Mr. Balia also pointed out that after earlier judgment of Hon'ble Mr. Beri, the other learned Single Judge, Hon'ble Mr. Justice Kan Singh could not have gone against it. According to Mr. Balia Hon'ble Mr. Justice Beri, as he then was, has clearly held that the defendant will be held responsible for actionable nuisance as he has diverted the bad and foul smell towards the plaintiff's shop.
12. Mr. L.M. Lodha, learned Counsel for the respondent, has vehemently opposed the appeal and supported the findings of the learned Single Judge by the impugned judgment. According to him, the present one was a case of no evidence in support of any finding of actionable nuisance. Mr. Lodha referred to two site inspection notes of the trial court and District Judge and pointed out that there was not a single word in both of them about the so called nuisance by bad and foul smell on account of urination or excreta of human being, dogs and cattle. Mr. Lodha also pointed out that the question whether it was an actionable nuisance or not, is not a question of fact and the learned single Judge was justified in holding it to be so.
13. According to Mr. Lodha so far as this lane was concerned he did not act in any manner whatsoever either to create the nuisance or helped the alleged nuisance. He only constructed his apartment over the Chabutra and he has got every right to enjoy his own property.
14. Mr. Lodha invited our attention to the impugned judgment of the learned Single Judge in which it has been observed that passing of the direction of the air, usually changes from season to season and the findings given by the District Judge are manifestly perverse. It was pointed out that by the impugned judgment the learned Single Judge held that by the construction of the apartment upon the Chabutra, what will be effect, would depend upon different seasons & situation and there cannot be any permanent nuisance.
15. We have given our careful consideration to the rival contentions of the learned Counsel for the parties and have perused the record of the case including the relevant judgment, the first being of Hon'ble Mr. Justice Beri and the second being the impugned judgment of Hon'ble Mr. Justice Kan Singh, as he then was. We have also perused the judgment of the District Judge which accordance to Mr. Balia is final on questions of facts. We have also perused the site inspection notes of the District Judge as well as the Civil Judge.
16. It is not in dispute that construction has been raised by the defendant on the Chabutra which was open earlier. Mr. Balia submitted that it was never the contention that the defendant created, a nuisance by construction as such but all that was said was that on account of the construction the foul smell was diverted and that created nuisance. So in substance it was diversion of nuisance which was in existence.
17. It is also common ground and now after the judgment of both the learned Single Judge of this Court, it is no more in dispute that the defendant can be held responsible for nuisance created by others if by his acts the nuisance is diverted towards the plaintiff.
18. The short question is whether the finding of the learned Single Judge that there was no actionable nuisance on account of which the defendant can be directed to demolish the property, can be interfered in this special appeal.
19. There cannot be any doubt under the second appeal the findings of the facts are final and the High Court should not interfere unless on exceptional grounds which are well known and needs no repetition. The question is, therefore, confined to the issue whether nuisance is finding of fact only or of law or mixed one.
20. In treatise by Winfield & Jolowicz on Tort 11th Edn. by W.V.H. Rogerswhile, dealing with the question of reasonableness of nuisance at page 364, it has been observed as under:
No precise or universal formula is possible to determine reasonableness in the above sense. Whether an act constitutes a nuisance cannot be determined merely by an abstract consideration of the, act itself, but by reference to all the circumstances of the particular case; the time and place of its commission, the seriousness of the harm, the manner of committing it, whether it is done maliciously or in the reasonable exercise of rights and the effect of its commission, that is whether it is transitory or permanent, occasional or continuous; so that it is a question of fact whether or not a nuisance has been committed.
21. In order to correctly arrive at a finding of fact such as nuisance, a court is required to consider the above factors and each factor has to be taken note of failure to consider any important aspect, could vitiate it.
22. We find that the learned District Judge never considered whether the so called nuisance was done in the exercise of rights nor he considered whether it is casual or temporary or permanent. Even the seriousness of the harm was not considered by the learned District Judge. In substance most of the tests mentioned above have been ignored. We find that the learned District Judge has even ignored his own site inspection note while appreciating the evidence of the plaintiff's witnesses in as much as his inspection note in terms makes a mention that when the inspection was done there was nothing in the lane which could create bad foul smell creating nuisance. Though he had made a mention and referred to the site inspection note in his judgment but it is limited to the question of flow of water only. At a later stage he has referred to it to a limited question that the plaintiff alleged that the lane was cleaned.
23. We are unable to appreciate how we can assume that the lane should remain uncleaned in an important town of Pali where there is a Municipality. We are also unable to appreciate how we can proceed on the assumption that in the market where the shops are located we should proceed on the assumption that the inhabitants would not approach the authorities concerned to clean the lane, We further fail to appreciate that how a neighbour would be responsible for such insanitary conditions on account of inaction of the civic authorities.
24. In our opinion the normal presumption would be that the Authorities would act according to the Municipal law and cleanliness should be got done and they should take care for that. If nor, a citizen would be at liberty to move the court for ensuring their rights, as happened in Ratlam Municipality case.
25. In the instant case, we find as per the findings of the District Judge, considered in the light of the site inspection notes both of the District Judge as well as the trial Judge which can be used for appreciating the evidence, that if these lanes are cleaned, there is absolutely no nuisance at all. In fact the learned District Judge himself has held that the plaintiff alleged that previous to site inspection the lane was cleaned, and due to that there was no bad smell or air. We wonder how this cleaning of the lane can be used, as a weapon against the defendant, as the cleaning of the lane ensuring sanitation, is the normal requirement.
26. We further find that the entire bogey of findings of nuisance is based on the allegation and the evidence that in the adjoining to the shop of the plaintiff urination is done frequently by people and sometimes even human excreta is passed and the cattle also come there and spoils it. Taking the alleged facts and the evidence in support of them at their best these are occasional lapses of citizens and if normally the sanitation is done by cleaning the lane even occasional urination would not create nuisance.
27. Even the civic authorities can be directed to construct public urinals and drainage. In any case the learned single Judge correctly and rightly pointed out that when the court is required to issues a mandatory injunction for demolition of a building in a situation like the present case, whereby constructing a building there is alleged diversion of nuisance, it will have to be considered as to what is the degree of nuisance, if at all. We cannot do better than extracting the following relevant portion of the judgment of the learned Single Judge which, according to us, has got great relevance:
All comforts cannot be expected in such a kind of market as in Pali. Also as I have observed the sense of cleanliness in the society in which we live is not so developed as else where. For example if one passes urine in a clean city like Paris near some body's shop that would be very much of a nuisance there but this may not be so under Indian condition.
After describing the directions of the shops and the property of the parties, the learned Single Judge has also held:
Wind blows not only from the South but also from the West for most of the year. To be precise for the most of the year the direction of the wind in this part of the country is South-West to North-East. Of course during the rainy season when it is about to rain the wind direction may be from North to South or East to West. Again during winter when cold winds are blowing the direction would be North to South.
From the above it would appear that the learned Single Judge on a very comprehensive discussion about the directions of the winds and the situation of the property came to the conclusion that the directions of the winds are different in different seasons and the directions are seasonal and occasional and cannot be for all times throughout the year.
28. The learned single Judge then found that in the present case the urination, human excreta or spoils of animals generate a number of gases, some of them being lighter than air should have the tendency of going up vertically, others may remain nearer the ground and spread laterally according to the dust of wind and the moment. According to him direct heat of the sun may also play its part in drying up foul substances and if there is no sunshine or sunshine is less as during rains or in winter it would aggravate the emission of the foul air. The learned Single Judge found that even the litigation started 17 years back and the business has continued by the plaintiff in the plaintiff's shop alone and there is inadequacy of material for holding any actionable nuisance.
29. We are in agreement with the finding of the learned Single Judge that the question whether actionable nuisance exists or not is a mixed question of fact and law. From the above decisions referred to it would be seen that some High Courts have held it to be a question of fact where the other held to be a question of Law only. In our opinion these are two extreme propositions and as discussed above it is a mixed question of fact and law. We therefore, hold that the learned single Judge was justified in holding it to be a mixed question of fact and law, and further finding that the finding of the learned District Judge was not justified in this respect.
30. We further find that the finding of the District Judge was vitiated because he started with the assumption of insanitation of the lane which was a public lane, owned by the civic authorities and maintained by the civil Authorities as such Obviously it was not private property either of the plaintiff or the defendant. In our opinion the entire approach was perverse, because in matters of cleanliness of the public streets or lanes belonging to the State or the Civic Authorities, the Court cannot start with the presumption that it would never be cleaned and would be allowed to remain in a dirty situation. We are further of the opinion that if the plaintiff would have any grievance of insanitation it could have been against the civic Authorities and not the defendant By non-consideration of these important legal aspects and issues, the judgment of the District Judge is vitiated and the learned single Judge was justified in interfering against such a decision. In fact the non-consideration of the important feature of the evidence like the site inspection notes both by the District Judge as, well as trial Judge, when no bad or foul smell was found in existence, should have put the court on guard to appreciate the evidence of the parties, but the same was not done and that also vitiated the judgments of the District Judge.
31. The expectancy of degrees of cleanliness & sanitation by private parties in Pali is bound to be different from Paris, and so also Jodhpur cannot be equated to Geneva or Zubic of Switzerland. For inaction or non-action of civil authorities a building, which had remained in existence for three decades cannot be demolished in a developing country like India.
32. We are, therefore, of the opinion that the finding of fact arrived at by the District Judge was vitiated on serious error of laws pointed out above. In the above view of the entire facts and circumstances of the case, which had a history of coming to this Court repeatedly, in which according to our view the plaintiff has chosen a wrong forum & he has wrongly spent the amount and energy to ensure sanitation and cleanliness by demolition, we have got no hesitation in dismissing the appeal and the same is hereby dismissed. In our opinion, the judgment of learned Single Judge suffers from no infirmity requiring interference in Special appeal.
33. May we expect that the plaintiff would pursue his remedy before civic authorities and the Municipality would ensure cleanliness and proper sanitation in this part of market of 'Pali' which is a fast galloping, budding, developing industrial town of Rajasthan.
34. The special appeal is consequently dismissed. However, in the facts and circumstance of the case the parties are left to bear their own costs.
35. A copy of this judgment may be sent to Municipal Board, Pali for ensuring proper cleanliness and sanitation in the lane concerned.