An injunction against a nuisance caused by business activities does not violate the fundamental right to carry on business, provided that the injunction is framed in a manner that allows the business to be carried on without causing nuisance or injuries to others.

JUDGMENT :

Barman, C.J. - This appeal filed by Defendants 1 and 2 carrying on business under the name and style of Govind Flour Mills at Cuttack town arises out of Plaintiffs' suit for removal of an alleged nuisance-dust, noise and vibration-with a prayer for permanently restraining the said Defendants 1 and 2 from carrying on their business of milling atta, splitting dal, husking paddy and preparing Churha or processing the grains for the aforesaid purpose by themselves or through their agents, servants, relations or friends in the premises in question-of which Defendant 3 was the owner and Defendants 1 and 2 were monthly tenants-adjacent to the Plaintiff's premises, all as described in the plaint with reference to boundaries.

2. The decision of the trial Court-which was upheld by the learned lower Appellate Court-as appears from the operative portion of the order dated April 26, 1966 is this:

Defendants 1 and 2 are permanently restrained from carrying on the business of milling atta, splitting dal, husking paddy and preparing Churha or processing the grains for the aforesaid purpose by themselves or through their agents, servants, relations or friends in the premises of Defendant 3. This order will take effect from 13-5-1966.

The Defendants filed an appeal to this Court being Second Appeal No. 526 of 1966 which was dismissed by a learned single Judge of this Court. It is from this decision that the Defendants have filed this appeal.

3. The point urged on behalf of the Defendants-Appellants is, in substance, this : The Defendants have a fundamental right to carryon their business. Their contention is that the effect of the decision of the trial Court-which was upheld both by the lower Appellate Court and this Court-is that they cannot carryon their business which however is 80 fundamental right guaranteed under the Constitution.

4. The correct position appears to be this : In the second appeal it is not that the learned Judge did not consider this aspect; in fact, in paragraph 9 of his judgment he clarified the purport and implications of the order of injunction against the Defendants. He made it amply clear that the freedom to carryon trade, business or occupation must necessarily mean that the same has to be carried on in such a manner in which it can be legally carried on without infringement of the rights of other citizens; in other words, the freedom to carryon a profession or trade or business cannot mean that it will extend to the encroachment upon private rights of other citizens; such private rights necessarily include the right to have a certain amount of comfort and convenience and a right to protection against danger to their health, safety or property. It is also equally clear that the provisions of the Orissa Municipal Act under which the Appellants are said to have obtained a license for carrying on the business cannot afford the protection against the infringement of the rights of a private citizen where the carrying on of the business amounts to private nuisance. In order to avoid any ambiguity in the injunction order, the learned Judge in the second appeal made it clear in the following terms:

Issue of such an injunction does not mean that the Defendants are denied their freedom of carrying on their business or trade as such. The relief sought is to prevent the Defendants from committing the nuisance which they will continue to commit, if they are allowed to run the mill in such a manner which produces disturbing noise causing, discomfort, causes vibrations which damage the Plaintiff's building, and discharge foul smell, dust, husk and coal gas which jeopardise the health of the occupants of the Plaintiffs house. The injunction granted being to restrain the Defendants from continuing to commit this nuisance, does not amount to restraint on the freedom of the Defendants to carryon trade or business, and as such, an injunction cannot be deemed to violate the fundamental rights guaranteed under the Constitution. There