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HIGH COURT OF CALCUTTA
Bijayesh Mukherji
GOTHAM CONSTRUCTION CO. - Appellant
Versus
AMULYA KRISHNA GHOSE - Respondent
A. F. A. D. 1631 Of 1964
Decided On : JUNE 21, 1967
NUISANCE - INJUNCTION - NOISE - RESIDENTIAL AREA - WORKSHOP - FACTORIES ACT, 1948 - CALCUTTA MUNICIPAL ACT, 1951 - SPECIFIC RELIEF ACT, 1877 - Held, that the noise from the hammering of steel sheets with hammers weighing up to four pounds created a nuisance and that the injunction granted by the trial court was justified. The appellant's contention that the respondents had an equally efficacious remedy under the Calcutta Municipal Act was rejected, as the relief obtainable from the Corporation of Calcutta was not an equally efficacious relief. The appellant's contention that the delay made by the respondents in instituting the suit should have been given more importance was also rejected, as the delay was not unreasonable and the nuisance had not been abated. The appellant's contention that the trial court erred in not considering the distance between the workshop and the respondents' houses was also rejected, as the finding of fact by the trial court that the noise from the workshop constituted a nuisance was based on oral evidence and could not be interfered with. The appellant's contention that the injunction was oppressive was also rejected, as the injunction only restrained the appellant from doing an act so as to occasion a nuisance to the respondents and the appellant could avoid the nuisance by erecting a sound-proof workshop.
Fact of the Case:
The appellant, Gotham Construction Co., ran a workshop for building motor vehicles at 41 Jhautola Road, which was a residential area. The respondents, who lived in the vicinity, filed a suit seeking a permanent injunction restraining the appellant from creating any sound nuisance in the workshop. The trial court granted the injunction, and the appellate court upheld the decision. The appellant filed a second appeal to the High Court.
Finding of the Court:
The High Court held that the noise from the hammering of steel sheets with hammers weighing up to four pounds created a nuisance and that the injunction granted by the trial court was justified. The court rejected the appellant's contention that the respondents had an equally efficacious remedy under the Calcutta Municipal Act, as the relief obtainable from the Corporation of Calcutta was not an equally efficacious relief. The court also rejected the appellant's contention that the delay made by the respondents in instituting the suit should have been given more importance, as the delay was not unreasonable and the nuisance had not been abated. The court further rejected the appellant's contention that the trial court erred in not considering the distance between the workshop and the respondents' houses, as the finding of fact by the trial court that the noise from the workshop constituted a nuisance was based on oral evidence and could not be interfered with. Finally, the court rejected the appellant's contention that the injunction was oppressive, as the injunction only restrained the appellant from doing an act so as to occasion a nuisance to the respondents and the appellant could avoid the nuisance by erecting a sound-proof workshop.
Issues: 1. Whether the noise from the appellant's workshop constituted a nuisance. 2. Whether the respondents had an equally efficacious remedy under the Calcutta Municipal Act. 3. Whether the delay made by the respondents in instituting the suit should have been given more importance. 4. Whether the trial court erred in not considering the distance between the workshop and the respondents' houses. 5. Whether the injunction granted by the trial court was oppressive.
Ratio Decidendi: 1. The noise from the hammering of steel sheets with hammers weighing up to four pounds created a nuisance. 2. The relief obtainable from the Corporation of Calcutta under the Calcutta Municipal Act was not an equally efficacious relief. 3. The delay made by the respondents in instituting the suit was not unreasonable and the nuisance had not been abated. 4. The finding of fact by the trial court that the noise from the workshop constituted a nuisance was based on oral evidence and could not be interfered with. 5. The injunction granted by the trial court only restrained the appellant from doing an act so as to occasion a nuisance to the respondents and the appellant could avoid the nuisance by erecting a sound-proof workshop.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS is an appeal by the defendant, Gotham Construction Co. , a firm, against whom the trial judge, and on appeal, the appellate judge as well, have granted a decree, permanently restraining it "from creating any sound nuisance in the workshop (of the firm) at 41 Jhautola Road arising out of hammering on steel or any other plates".
( 2 ) THE appellant's workshop at 41 Jhautola Road is one for "building the bodies of motor vehicles", as the averment in the second paragraph of the plaint is--an averment which the sixth paragraph of the appellant's written statement admits to be "substantially correct". Such is the admission too of the appellant firm's partner, Shri Haridas Goswami, as the 3rd witness for the defendant, in his evidence at the trial. Jhautola Road runs north to south. On the east of the road is "41" with the controversial workshop and also the residence of Shri Haridas Goswami and his family. Shri Bhudeb Sankhanidhi, the 3rd plaintiff (now the 3rd respondent), a director or Lalmohan Saha Sankhanidhi and Co. , with its head office in India, lives at the relevant time at 40 Jhautola Road on "the contiguous north and east" of which is "41". 47 Jhautola Road is the house where the first two plaintiffs (now the first two respondents) live. The first one is Shri Amulya Krishna Ghosh who deals in, and imports, printing machinery. The second one is Shri Goutam Chakravorty, a barrister, occupying as a tenant the ground-story of "47". "41", as noticed, is on the east or jhautola Road, running north to south. "47" is on the west. According to Shri Goutam Chakravorty, the 4th witness of the plaintiffs and himself the second plaintiff, "41" is to the south-east of "47". Or is it north-west P That is what Shri Amulya Ghosh, the 8th witness of the plaintiffs and himself the first plaintiff, says: his house (which is "47", the same as Shri Goutam Chakravorty's) is to south-west of "41". Which means that "41" is on the north-east of "47". Obviously, there is some confusion somewhere; either a slip on the part of either of the two Shri Goutam Chakravorty and Shri Amulya Ghosh or a recording mistake. But that does not matter. What do matter are the following:a. The distance between the southern wall of "41" and the northern corner wall of "47 ' cannot be more than 50 to 60 yards. B. The width of Jhautola Road with the footpaths would be 60 feet or more. C. Inside of "41" there is a tin shed the distance between which and the gate of "41 would be 15 feet or thereabouts. Such has been the evidence of the respondent, Shri Goutam Chakravorty. Shri Haridas Goswami, a partner of the appellant firm and the defendant's 3rd witness, will however put the distance between the tin shed (with brick-built walls on all sides and asbestos roofing, inside of which body-building works are carried on, according to him) and Jhautola Road as 400 feet or thereabouts.
( 3 ) THIS, then, is the lie of the place where the litigating parties live and one of them, the human agency of the appellant firm carries on business too as the builder of the motor coaches and vehicles. In adjudicating a cause, the instant litigation is like, resting on noise and nuisance, as alleged by the suing party, the respondents before me, such is the milieu a court cannot simply do without. There is a little more yet. And that little will unfold itself, as I state the respective case the parties come to court with--which I now proceed to do.
( 4 ) JHAUTOLA Road and its vicinity form a residential area inhabited by highly respectable persons. But the peace and quiet of the place have been broken by the terrific sound coming out of the workshop at "41" which works every day from 8 a. m. or thereabouts to 8 p. m. or even later. A nuisance as this has been continuing since early in February 1961 when the defendant firm (now the appellant) opened its workshop at "41" where it was running only its office earlier. Repeated request to stop the nuisance yiel
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