(1.) THE accused in S. T. Case 554/65 on the file of the honorary First Class Magistrate's Court, Kozhikode is the revision petitioner. He was prosecuted under S. 44 read with S. 134 of the madras Public Health Act, 1939 (shortly stated the Act) for causing nuisance by producing noise by cutting and hammering tin sheets for bis business of making tin boxes. THE prosecution was launched by pw. 1 the Health Inspector of Calicut corporation. THE accused is engaged in the business of making tin boxes in shop no. 3/567-F of the Calicut Corporation. PW-2, a lady aged 66 is residing in the adjoining building and she complained to the Health Inspector that her sleep and rest were disturbed by the noise. Pw-1 inspected the accused's shop and found that the noise produced in the course of his tin business was really a nuisance for the neighbours and he reported the matter to the Health Officer. THE accused was thereupon served with a notice requesting to abate the nuisance. THE accused sent his reply denying the charge. Accordingly the prosecution was initiated. THE learned Magistrate convicted the accused of the offence charged and sentenced him to pay a fine of Rs. 30/ -. Revision to the district Magistrate of Kozhikode has been unsuccessful.
(2.) THE question for consideration is whether the prosecution has made out a case under the Act against the accused. 'nuisance' is referred to in S. 3 (25) of the Act in the following terms: "'nuisance' includes any act, omission, place or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or disturbance to rest or sleep or which is or may be dangerous to life or injurious to the health or property of the public or the people in general who dwell or occupy property in the vicinity, or persons who may have occasion to use any public right. " THE Indian Penal Code defines'public nuisance' under s. 268 as follows: "a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right".
We have first to decide whether the nuisance in question is public or private. A criminal action before a Magistrate can He, only if it is a public nuisance. A public nuisance is a common nuisance. It is an injury, danger or annoyance to the public generally and an offence against public rights, safety or convenience. A private nuisance is. on the other hand, an injury to the right of a person to the comfortable occupation of his own property. In some cases a private and public nuisance may concur. For instance, a trade causing offensive noises or smell injurious to the neighbours as well as the general public. But even in such cases, the public generally must be affected by the nuisance. In the case before us the person affected is only one individual, viz. , pw. 2. The Public Health authorities were moved by her by means of a petition or letter marked Ext. P-6 in the case. The allegations in the complaint are: (1) rain water from the roof of the accused's shed falls on her wall and the wall is spoiled thereby; and (2) she does not get rest due to the noise coming from the accused's shed. On receipt of this complaint, pw. 1 the Health Inspector visited the spot and made a report stating that the complaint is true. The report is Ext. P-5 and it runs: "inspected the place on the 13th inst. , at about 10 a. m. and found the party and three others cutting open tin barrels and converting them to tin sheets, by hammering causing a loud noise from the shop 3/567f and the open yard behind it, resulting in great nuisance. . . " Causing great nuisance to whom? She has not stated that it is causing nuisance to the public generally or any section of the public. On the other hand, it has come from her evidence that there are neighbours, quite a large number of them; but none of them has made any complaint so far. One Mr. Kumaran, Ex. M. L. A. is residing very close to the shop. On the southern side of shed, one Dr. Mohammed resides. There are a few others also. There is a flour mill nearby and noise emanates from there also. So, barring Pw-2, we have only the statement of Pw-1 that the noise coming from the accused's workshop is a nuisance. Pw-1's statement can only be taken as opinion evidence, because she has never had any direct knowledge or experience of the alleged nuisance. Persons who are living in the neighbourhood and affected by the noise, alone are competent to swear to it.
The courts below have relied on a single Bench decision of the Madras High Court in Venkateswaran v. Corporation of Madras (1963-7 MLJ. Crl. 602) where the learned judge has taken the view that 'nuisance as defined in Public Health Act includes both public and private nuisance'. I am unable to agree. In support of his view the learned judge would point out that the word 'common' which is found in S. 268 of the Penal Code is absent in the definition of public nuisance in the Act and so it could be inferred that private nuisance is also taken in, under the latter Act. S. 43 of the Act also has been pressed into service by the learned judge in the above ruling, to fortify his view that private nuisance is also contemplated by the Act. S. 43, only gives the right to the aggrieved party whether individual or a group of persons, to give information to the Health Officer or to some other officer of the Public Health Establishment about the nuisance, that does not mean that an action could be brought even if the person affected is a single individual. Even though the qualifying word 'common' which we see in S. 268 IPC. is absent in the definition of nuisance in the Act, there are various other indications in the latter definition, to show that what is contemplated is only public nuisance. Injury, danger, annoyance or offence to the sense of sight etc. that is contemplated there, are in relation to the 'public' or the 'people in general' who dwell or occupy property in the vicinity or 'persons' who may have occasion to use any public right. Single individual affected does not at all come in the picture. Injury to comfort, the law will protect, only as incident to the possession of property. One of the earliest cases in which disturbance of comfort was recognised as actionable, was Aldred's case (1610) 9 Co. R. 57)where an action was allowed for offensive smells from a hog house. That was only a civil action. Injury to comfort was made the subject of criminal indictment on the ground of its having assumed the proportion of a public nuisance. It was since the middle of the last century and after the rise of a large urban population in England that actions for discomfort became common and the rules relating to them were developed in a series of decisions. So, unless a body or group of persons are affected by the nuisance, no criminal action can be sustained and this is the position in respect of the Act also.
(3.) IN all these cases, one other question to be considered is whether the inconvenience or discomfort complained of, is real or only fanciful. It must be inconvenience according to the plain, sobre, and simple notions of the common man. IN other words, the discomfort should be such as an ordinary or average person in the locality and environment, would not put up with or tolerate. That is to say, it must be such as to inconvenience an ordinary or average person, not a fastidious, weak, nervous or sick person. Lex nonfavet delicatorum votis is the maxim, which means, "the law makes no allowance for the susceptibilities of the hyper-sensitive". IN the case before us the complainant, pw. 2, on her own admission is a hypersensitive type of person. She is aged 66 and is suffering from high blood pressure. She herself swears, "it is the legal right of every person to make such use of his own property as he may think fit, provided that in so doing he does not cause real injury to others or offend against the law, even though he may thereby hurt the susceptibilities of others. " IN that case, the complaint was made by a Jain against the slaughter of kine by Mohamaddans openly in the Village of Behta Goshain. The learned judges throwing out the complaint observed: "the right of Muhammadans to slaughter kine is one to which they are legally entitled irrespective of custom, and it is only when they abuse the right that its exercise can be interfered with. " The learned judges have further observed: "we may also say that it is in the highest degree desirable that the members of the different religious persuasions who are to be found in this country, should, in the observance of their religious ceremonies as well as in the exercise of their lawful rights, show respect for the feelings and sentiments of those belonging to different persuasions, and avoid anything cal culated to irritate the religious susceptibilities of any class of the community. But when a question in which the ordinary rights of property are involved comes before us, we must, before we can allow those rights to be infringed, endeavour to find the existence of some principle or rule of law justifying a ruling that the wishes or susceptibilities of individuals can be allowed to override such rights. " On the above analogy it should be held that the action taken on the complaint of pw. 2, the only person affected by the so-called nuisance cannot be sustained since the complaint proceeds from her own abnormal or hyper sensitiveness. We are to be guided in a case like this by the standard of the ordinary or average person and not of a weak, nervous or sick person. The place in question is within the corporation and is a fairly crowded locality. It is significant that none of the other neighbours has come forward complaining of the nuisance. According to pw. 1 herself, the factory is not worked after 8 p. m. Such being the case, I fail to see any good faith in pw. 2's complaint that her sleep is disturbed by the noise. Viewed from any standpoint, therefore, the action must fail.
In the result, the conviction and sentence are set aside and the accused is acquitted. Fine, if realised, will be refunded. The revision Petition is allowed. Allowed.;