043-SLLR-SLLR-1983-2-ARLIS-APPUHAMUY-v.-KAHAVIDANE.pdf
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Artis Appuhamy v. Kahavidane
493
ARUS APPUHAMY
v.KAHAVIDANE
COURT OF APPEAL
SENEVIRATNE. J. AND G. P. S. DE SILVA. J.
A. (S.C.) 234/74 (F): D.C. COLOMBO 2401 /ZL16. 17. 18 FEBRUARY 1983.
Nuisance — Permanent injunction — Erection of bakery — Quia timet action.
The plaintiff complained that the defendant had commenced construction of abakery and hotel very close to her residence and that the establishment of suchbakery and hotel would cause a nuisance. The action was in the nature of a quiatimet action. A permanent injunction was also sought.
The noise, smell and smoke from running a bakery would constitute a nuisanceand cause discomfort and injury to health. The action was quia timet incharacter and not based, on a nuisance which existed but an apprehendednuisance. However for this reason the action is not misconceived.
In a quia timet suit the plaintiff must show a strong case of probability that theapprehended mischief will, in fact, arise. If there is evidence that the plaintiffsfears in regard to a threatened nuisance are not imaginary but well-founded andreasonable, a court would be entitled to grant a declaration and an injunction, inappropriate circumstances.
Although at the stage of the institution of the action, the defendant had onlycommenced the construction of the building, which was used as a bakery andhotel, the evidence led at the trial establishing the existence of the nuisance isrelevant because this evidence was clear that the smoke and noise emanatingfrom the bakery caused inconvenience to the plaintiff and was injurious to herhealth. These facts are very relevant to show that the apprehension entertainedby the plaintiff at the date of the institution of the action.-was justified and herfears were well-founded.
The facts that there was approval of the local authority for putting up thebuilding and a licence had been issued to run a bakery do not authorise thedefendant to interfere with the use and enjoyment of the adjoining land ownedand occupied by the plaintiff in such a way as to constitute a nuisance. Thelicences issued by the local authority to construct the building and to carry onthe business of a bakery, do not perse afford a defence to the plaintiff's action.
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Cases referred to :
Attorney-General v. Corporation of Manchester [ 1983] 2 Ch. 87
Hewavitharana v. Chandrawathie 53 NLR 169
Naganatharv. Velautham 55 NLR 426
Selvam v. Kuddipillai 55 NLR 426
Fletcher v. Beally 28 Ch. Div. 688
Attorney-General for Canada v. Ritchie Contracting & Supply Co. Ltd. 121Law Times 655.
Hooper v. Rogers 19743 All ER 417
APPEAL from judgment of the District Judge of Colombo.
H. W. Jayewardene. Q.C. with T. B. Dillmuni and Rohan de Alwis fordefendant-appellant.
C. Renganathan, Q.C. with Gomin Dayasiri for plaintiff-respondent.
Cur. adv. vult
25 March 1983
P. S. DE SILVA, J.
The plaintiff instituted this action on 14th February, 1971,alleging
that about 3 ft. from the northern boundary of theplaintiff's land, the defendant has commenced theconstruction of a building to be used as a bakery andhotel on the defendant’s land ;
that the establishment of a bakery and hotel on the landof the defendant, will cause inconvenience andannoyance and will be injurious to the health and comfortof the plaintiff and the members of her family and assuch, will constitute a nuisance to the plaintiff(paragraphs 5 and 8 of the plaint).
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Arlis Appuhamy v. Kahavidane (G. P. S. de Silva. J.)
49a
The court subsequently accepted an amended plaint, dated 2ndDecember. 1971. wherein the plaintiff prayed in paragraphs (d)and (e) of the prayer, for the following reliefs based on the causeof action pleaded in the original plaint:—
" for an order declaring that the defendant, his servants andagents are not entitled to establish, continue or carry on abakery and/or hotel in the premises of the defendant;
" for a permanent injunction restraining the defendant, hisservants and agents from establishing, continuing orcarrying on a bakery and/or hotel in the premises of thedefendant
In his amended answer, dated 9th June. 1972. the defendantpleaded :—
that the construction of the building has been dulycompleted and has been approved by the properauthority ;
that a licence has been granted by the proper authority tocarry on a bakery;
that since April 1972. after obtaining a licence from theproper authority, the defendant is carrying on thebusiness of a bakery on the premises belonging to thedefendant.
The case proceeded to trial on the following issues
Do the premises bearing No. 525/3 described inparagraph 2 of the amended plaint, dated 02.12.71.belong to the plaintiff upon Deed No. 797 referred to inthe amended plaint ?
Does the carrying on of the business of a bakery and/orhotel by the defendant in the premises No. 519,constitute a nuisance to the plaintiff ?
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Has any right of the plaintiff been or is any right beingviolated and/or prejudiced by the construction,establishment, continuing or carrying on of a bakeryand/or hotel business in the said premises ?
If any one or more of the aforesaid issues are answeredin favour of the plaintiff, is the plaintiff entitled to obtainany one or more of the reliefs referred to in the prayer tothe said amended plaint ?
The issues raised on behalf of the defendant, read thus
Is the entire action of the plaintiff based—
only on an apprehension of a nuisance; and/or
on a quia timet basis ?
If issue 5(a) and/or (b) are answered in the affirmative, isthe plaintiff entitled to the relief he prays for ?
In any event, was the construction of the bakery referredto in paragraph 6 of the amended answer, lawful ?
In any event, is the defendant now lawfully carrying onthe business of a bakery at the premises referred to inparagraph 6 of the said amended answer ?
If issues 7 and 8 are answered in the affirmative, can theplaintiff have and maintain this action ?
The District Judge answered issues 1, 2 and 3 in the affirmativeand granted the plaintiff, the declaration and the permanentinjunction prayed for in paragraphs (d) and (e) of the prayer tothe amended plaint. Issues 5(a) and 5(b) were answered in theaffirmative while the answer to issue 6 was that the plaintiffis entitled to the declaration and the injunction prayed forin the amended plaint. The answer to issues 7 and 8
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was in the affirmative for the reason that a licence has been dulyobtained from the Municipal Council. However, the answer toissue 9 was that the plaintiff can have and maintain the action.The defendant has now appealed against this judgment.
The premises of both the defendant and the plaintiff areadmittedly situated in an area which had been declared aresidential area under the provisions of the Town and CountryPlanning Ordinance as far back as 1960. The plaintiff was. residing in the premises in question since 1963. In her evidence,the plaintiff states that the bakery is situated about 10 ft.away from her house; that smoke emanates from the defendant'sbakery and enters her house; that the smoke is black in colourand that it remains in the house for about 15 minutes or evenmore ; that this happens more than once a day; that there areconstant noises coming from the bakery, of trays striking againstone another, of trays falling on the ground and of trays beingscraped; that the smoke has affected her health and that as aresult of the noise, her sleep at night is disturbed. Her testimonyin regard to these facts is supported by witness Alwis. There isalso the evidence of Dr. Sellathurai who states that the plaintiffwas one of his patients and that she had complained to himabout the smoke which causes difficulty in breathing and thenoises that disturb her sleep. Dr. Sellathurai expressed theopinion that the smoke could cause discomfort and affect theplaintiff's health. The trial Judge has carefully considered theevidence of the plaintiff and her witnesses, and has come to astrong finding in favour of the plaintiff that the smoke, the foulsmell and the noises emanating from the bakery, constitute anuisance. At the hearing before us. Mr Jayewardene, Counsel forthe defendant-appellant, did not canvass the findings of the trialJudge in regard to the existence of a nuisance. Indeed, thedefendant did not lead any evidence to contradict the testimonyof the plaintiff, as regards the smoke, the smell and noises whichemanate from the bakery.
Mr. Jayewardene. submitted that the District Judge havinganswered issue 5 in the affirmative, the plaintiff was not entitledin law to the declaration and the permanent injunction prayed for
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in the amended plaint. Mr. Jayewardene urged that on a readingof the amended plaint, it is clear that all that had happened as atthe date of action was that the defendant had commenced theconstruction of a building close to the northern boundary of theplaintiff's land and such building was intended to be used as abakery and hotel. Counsel contended that this action is a quiatimet action based on an anticipated nuisance and referred toparagraph 8 of the amended plaint, which reads thus
" The establishment of a bakery and hotel in the land of thedefendant will cause inconvenience and annoyance andwill be injurious to the health and comfort of the plaintiff. ..and as such, will constitute a nuisance to the plaintiff. "
On a scrutiny of the averments in the amended plaint. I am inentire agreement with Mr. Jayewardene's submission that theaction is quia timet in character and is not based on a nuisancewhich existed but alleges an apprehended nuisance. However, inmy view, it cannot be said that for this reason, the action ismisconceived as submitted by Mr. Jayewardene. and that theDistrict Judge was not entitled to grant a declaration and apermanent injunction. In this connection, the case of TheAttorney-General v. Corporation of Manchester (1) is relevant.This was an action brought by the Attorney-General to restrainthe defendant from establishing a hospital for persons sufferingfrom smallpox. It was alleged that such hospital would constitutea nuisance to the inhabitants in the neighbourhood. The actionwas based on an apprehended public nuisance. Chitty. J.,dealing with the principle on which a court acts in granting orrefusing an injunction in quia timet actions, stated
" The principle appears to be the same whether the allegedfuture nuisance is public or private. In one of the cases towhich I have referred, the alleged nuisance was a publicnuisance ; in others a private nuisance. In some, acts hadbeen done which it was alleged, would result in futuremischief or injury, but which had not already resulted in
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Arhs Appuhamy v. Kahavidane (G. P. S. de Silva. J.)
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injury or substantial damage; in others, there was merethreat or intention. But in regard to all such cases, theprinciple is the same. Where it is certain that the injury willarise, the court will at once interfere by injunction. . . . Butthe court does not require absolute certainty before itintervenes ; something less will suffice. . . . The principlewhich I think may be properly and safely extracted from thequia timet authorities is, that the plaintiff must show astrong case of probability that the apprehended mischiefwill, in fact, arise. "
In support of his contention that in quia timet proceedings,that the plaintiff is not entitled to the relief granted by the DistrictJudge in the instant case, Mr. Jayewardene cited Hewavitharanav. Chandrawathie (2); Naganathar v. Velautham (3); Selvam v.KuddipiUai (4) ; Fletcher v. Beally (5) ; Attorney-General forCanada v. Ritchie Contracting & Supply Co. Ltd. (6) and Hooperv. Rogers (7).
In Hewavitharana's case (supra), the plaintiffs alleged that theywere fideicommissaries under a gift and that the defendant, towhom the interests of the fiduciary had been transferred, heldthe property subject to the interests of the plaintiffs asfideicommissaries. The defendant claimed to be the absoluteowner of the property free of any fideicommissum. The cause ofaction set out in the plaint was
" The plaintiffs fear that the defendant may deal with theproperty to the prejudice of the plaintiffs by the sale of aportion of it and the institution of a partition action withoutnotice to the plaintiffs. A cause of action has arisen to theplaintiffs to sue the defendant quia timet, to havethemselves declared entitled to the premises described inthe schedule hereto subject to a life interest in favour of thedefendant abovenamed." Gratiaen, J. in the course of hisjudgment, stated
" It seems to me that the plaintiffs have failed to prove anactual or threatened infringement by the defendant of theiralleged fideicommissary rights. … No act or conduct on
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the part of the defendant has therefore been committed orthreatened which can be construed at this stage as aneffective infringement of the alleged interests of theplaintiffs or of those to whom these interests would, in theirsubmission, be transmitted in a certain eventuality. I wouldhold that, in the circumstances, no cause of action hasaccrued to the plaintiffs, to claim the relief granted to themby the judgment under appeal. Until such a cause of actionhas in fact accrued-, the plaintiffs are not entitled to obtainfrom this court, a bare declaration as to their hypotheticalrights on questions of law which still remain academic.The legal problems now submitted for our adjudication havenot yet been crystallized into a 'crisp dispute' … My onlydecision is that the plaintiff's action is premature. "
In Naganathar's case (supra), by Deed D1, the plaintiff's wife,to whom the Thesewalamai applied, purported during thesubsistence of her marriage but without her husband's consent,to convey her separate immovable property to the 4th defendant.The plaintiff sought a declaration .that the purported conveyanceunder D1 was void. Although the District Judge correctlydecided that the purported alienation to the 4th defendantwithout the plaintiffs consent was void, yet he refused adeclaratory decree in favour of the plaintiff on the ground that hehad no proprietary interest in the separate property of his wifewho was not a party to the action. Gratiaen, J., in the course ofhis judgment, stated
"The learned District Judge has, in my opinion, taken
too narrow a view of the jurisdiction of a court to grant reliefin the form of a declaratory decree in quia timet proceedings.Cases may well occur in which such a decree would bejustified to accomplish the needs of precautionary justice forthe protection even of future contingent rights … On theone hand. I agree entirely that a court should not permititself to be converted into a forum for the discussion ofpurely academic problems, and ought therefore to besatisfied that the declaratory decree asked for in anyparticular action relates to a concrete and genuine dispute
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Arhs Appuhamy /. Kahasidane (G. P. S. de Silva. J.)
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and would, if passed, serve some real purposes in the
event of future litigation between the same parties. " Theemphasis is mine.)
Selvam's case (supra) was one where the plaintiff who claimedto be the owner of the property described in the schedule to theplaint, alleged that the defendants, disputing his claim to be thesole owner, wanted him to pay them the value of their share ofthe property. The plaintiff claimed a declaration that he was thesole owner of the property. He admitted that despite the disputeas to title, he had continued to possess the property and enjoy itsproduce exclusively. The District Judge held that the evidence ofthe plaintiff did not disclose a cause of action against thedefendant inasmuch as in his evidence, he has stated that he isin undisturbed possession of the land. Accordingly, the trialJudge dismissed the plaintiff's action. Gratiaen. J. held that thedismissal of the plaintiff's action was premature and in thecourse of his judgment, observed :—
"An owner of immovable property is entitled to enjoy itwithout disturbance and without fear of unjustifiableinterference from outsiders. If his enjoyment is disturbed byforcible ouster, the remedies of a rei vindicatio action or (inappropriate cases) of a possessory action are available tohim ; if it is seriously threatened (as the appellant claims ithas) he may demand in quia timet proceedings, adeclaration of his rights so as to prevent in anticipation,the apprehended invasion of his rights of ownership. "(The emphasis is mine.)
The next case cited by Mr. Jayewardene is Fletcher v. Beally(supra). In this case, the plaintiff was a manufacturer of paperand his mill was situated on the bank of a river. The water in theriver was used in the process of manufacture and it was essentialthat the water should be very pure. The defendants weremanufacturers of alkali and they were depositing on a piece ofland close to the river, a large heap of refuse from their works.There was evidence to show that in the course of a few years, a
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noxious liquid would flow from the heap of refuse and if thisliquid were to find its way into the river, it would pollute the waterand make it unfit for the manufacture of paper. It was not theplaintiff's case that he had, in fact, sustained any actual injury.The defendants stated that they intended to use all properprecautions to prevent the liquid from polluting the water in theriver. On the evidence, it would appear that it would take someyears before the water gets polluted and cause injury to theplaintiff. Pearson, J. held that it was quite possible by the use ofdue care to prevent the liquid from flowing into the river and itwas also possible that before the liquid begins to flow from theheap of refuse, some method of rendering it innocuous might bediscovered aqd accordingly dismissed the action. This case wasdiscussed in Hooper v. Rogers (supra) where Russel. L.J.. in thecourse of his judgment, stated the principle, succinctly
" In different cases, differing phrases have been used indescribing circumstances in which mandatory injunctionsand quia timet injunctions will be granted. In truth, it seemsto me that the degree of probability of future injury is notan absolute standard : what is to be aimed at is justicebetween the parties, having regard to all the relevantcircumstances. " (The emphasis is mine.)
Finally, Mr. Jayewardene relied on the following dicta in thejudgment of Lord Dunedin in Attorney-General for the Dominionof Canada v. Ritchie Contracting and Supply Co. Ltd.{6)
" But no one can obtain a quia timet order by merely saying'Timeo'; he must aver and prove that what is going on iscalculated to infringe his rights. "
On a consideration of these decisions, it would appear thatwhether a court is justified in granting the relief, be it aninjunction or a declaration, in quia timet proceedings, woulddepend very largely on the facts and circumstances of eachparticular case. If there is evidence that the plaintiffs fears inregard to a threatened nuisance are not imaginary but well-founded and reasonable, a court would be entitled to grant a
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declaration and. an injunction, in appropriate circumstances. It istrue, as submitted by Mr. Jayewardene. that at the stage of theinstitution of the present action, the defendant had onlycommenced the construction of the building which was used asa bakery and a hotel, only subsequently. While it is correct thatrights of parties are generally determined as at the date of action,I find myself unable to agree with Mr. Jayewardene's furthercontention that the evidence led at the trial in regard to theexistence of a nuisance (as opposed to a threatened nuisance) isirrelevant. The evidence is that within a fairly short period of time,the building had been completed and the business of a bakerywas being carried on. There is clear evidence that the smoke andthe noise emanating from the bakery, caused inconvenience tothe plaintiff and was injurious to her comfort and health. Thesefacts are very relevant to show that the apprehension entertainedby the plaintiff, as at the date of the institution of the action, wasjustified and her fears were well-founded. The evidence led at thetrial, without objection, of the existence of a nuisance, confirmedthe fears of the plaintiff, as was stated by the District Judge in thecourse of his judgment. I accordingly hold that such evidencewas relevant and warranted the reliefs granted to the plaintiff inrespect of the carrying on of the business of a bakery.
The next submission made by Mr. Jayewardene was that sincethe building was put up with the approval of the local authorityand the business of a bakery was being carried on, upon alicence issued by the appropriate authority, the defendant wasengaged in a lawful business. Counsel urged that it was not opento the plaintiff in this action, to challenge either the validity of D2which is the permit issued by the Colombo Municipal Council,for the construction of the building in question, or the validity ofthe licence in respect of the bakery (D10).
On the other hand. Mr. Ranganathan submitted that theplaintiff was not seeking in these proceedings. 1o challenge D2and D10. The real question is whether D2 and D10 afford adefence to the plaintiff's action. In short. Mr. Ranganathan'scontention was that neither D2 nor D10 constitutes a licence to
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commit a nuisance. With this submission. I agree. It is to beobserved that paragraph 6 of D2. expressly states thus
" This permit will not prejudice the rights of the adjoining
owners. "
The issue of the licence D10 in respect of the bakery, does notauthorise the defendant to interfere with the use and enjoymentof the adjoining land owned and occupied by the plaintiff in sucha way as to constitute a nuisance. In this context, it is relevant tonote the provisions contained in the Regional Planning Schemefor Colombo, made under the Town and Country PjanningOrdinance, and published in the Gazette marked P3. Part IV ofthis scheme, deals with residential areas. There is here anexpress prohibition against the executive authority grantingpermission to erect a new building to be used as a commercialbuilding unless such authority is satisfied that" the use for whichthe building is intended, must not create any kind of nuisancewhatsoever. " I, therefore, hold that the licences issued by thelocal authority to construct the building and to carry on thebusiness of a bakery, do not per se afford a defence to theplaintiffs action.
On the evidence, it is clear that the smoke and the noisecomplained of, proceeded from the bakery and not from thehotel. The relief granted by the District Judge in terms ofparagraphs (d) and (e) of the prayer to the amended plaint is inrespect of " the bakery and/or hotel ". This is not in accordancewith the evidence accepted by the trial Judge. I would, therefore,amend the judgment and decree under appeal, by confining thedeclaration prayed for in paragraph (d) and the permanentinjunction prayed for in paragraph (e) of the prayer to theamended plaint, to the bakery only in the premises of thedefendant. Subject to this variation, the appeal is dismissed withcosts.
SENEVIRATNE, J. — I agree
Decree variedAppeal dismissed.